Memorandum from Professor Sir David Edward,
Honorary Professor of the School of Law at the University of Edinburgh
I will confine my evidence to those questions
on which I feel that my experience might be of assistance to the
Committee.
1. THE PRACTICAL
CONSEQUENCES OF
THE NEW
REFERENCES IN
(ARTICLES 2 AND
3) TO THE
UNION'S
VALUES AND
OBJECTIVES
In a number of cases the European Court of Justice
has referred to the objectives set out in the preamble to the
EC Treaty, or to the "tasks" or "activities"
set out in Part One (Principles), as a guide to interpretation
of the Treaty as a whole and of specific articles of it. Thus,
the reference to an "ever-closer union" was taken (I
believe correctly) as an indication that the underlying (or overarching)
intention of the treaty-makers was to promote European integration
(the so-called integrationist agenda). More specifically, the
references to "abolition of obstacles to freedom of movement"
and the "institution of a system ensuring that competition
is not distorted" were construed as indicative of an intention
to adopt a free-market economic system.
The stated objectives of the original Treaties
were helpful guides to interpretation because they constituted
a reasonably coherent and precise statement of aims and priorities.
This may, in part, have been because the Treaties themselves were
limited in scope. The effect of successive Treaties has been to
include a growing number of less precise objectives (eg the "flowering
of the cultures of the Member States") which amount to little
more than a politically correct wish-list and are of little assistance
to the Court as guides to interpretation.
Articles 2 and 3 of the Constitutional Treaty
are all-embracing, imprecise and give no guidance as to priorities.
I doubt whether they would be of much value as a guide to legal
interpretation. Whether they would have a useful practical effect
in conditioning public or political attitudes I am not in a position
to judge.
2. WHETHER THE
TREATY MAKES
ENHANCED CO
-OPERATION MORE
LIKELY
The underlying assumption of the Treaties used
to be that all Member States must move forward together. By providing
for "closer co-operation" (renamed "enhanced co-operation"
by the Treaty of Nice), the Treaty on European Union moved away
from that assumption. But the existing Treaty remains somewhat
vague as to how the provisions for enhanced co-operation are to
be invoked and how it is to operate. The Treaty on the Constitution
is more specific both as to the circumstances in which enhanced
co-operation can be authorised and as to the criteria that must
be met and the procedure to be followed.
These changes offer an alternative to an untidy
proliferation of opt-outs. They provide a more transparent and
effective means of ensuring (from a political point of view) that
any project for enhanced co-operation would be acceptable to the
non-participants and (from a legal point of view) that it would
be compatible with the main provisions of Union law, notably as
regards the working of the single market.
As a corollary, projects for enhanced co-operation
could more readily be challenged in the Court of Justice on the
grounds that the required criteria had not been met and/or that
the correct procedure had not been followed.
As to whether this makes enhanced co-operation
more likely, the provision of more specific machinery would give
greater certainty that a project could go ahead if it met the
criteria. On the other hand, it raises the bar that would have
to be cleared before a project for enhanced co-operation could
be put into effect. The "likelihood" of more enhanced
co-operation would depend, I think, on other factors.
3. HOW PUBLIC
MEETINGS OF
THE COUNCIL
WHEN LEGISLATING
WOULD WORK
IN PRACTICE—IN
PARTICULAR, HOW
MUCH WOULD
BE PUBLIC
What the Treaty requires (Article I-23(5)) is
that the Council should meet in public when deliberating and voting
on a draft legislative act. It seems clear that this applies only
to formal meetings of ministers and not, for example, to meetings
of COREPER.
I have the impression (but I am not certain)
that the expression "draft legislative act" refers to
a text which, once the vote has been taken, will pass directly
into law, subject only to action on the part of the European Parliament
where that is required. Put another way, the provision does not
seem to apply to earlier stages of discussion of a Commission
proposal, even if this takes place between ministers in Council.
It would be useful to clarify this.
When a text reaches the final stage of deliberation
and vote before it passes into law, much of the negotiation (and
horse-trading) has already taken place in COREPER or in other
discussions between Member States, the Council Secretariat, the
Commission and/or the relevant Committee of the Parliament. In
most cases, the general principles underlying the proposed legislation
have been agreed long before.
There are, of course, cases where important
decisions of principle or detail are left to ministers at the
final stages of discussion in Council, and these discussions would
be public. But there is perhaps a danger that crucial discussions
on delicate points would be taken in private beforehand, so that
the public meeting would do no more than rubber-stamp a decision
that had, to all intents and purposes, already been taken. (This
is said to occur in some local authorities as regards, for example,
planning permissions.)
The real importance of the new provision seems
to me to lie in making for greater transparency as regards qualified
majority voting and abstention when unanimity is required. The
positions taken by ministers—the way they vote (or abstain)
and their declared reasons for doing so—would be verifiable
both by the media and by national Parliaments. It would be less
easy to strike deals by which Member State A supports Member State
B on one project on condition of reciprocal support on another,
unrelated project. Perhaps even more importantly, it would be
possible (admittedly, only after the event) for national Parliaments
to hold ministers to account for their conduct of Council business
in a way that is not possible at present, at least in most Member
States.
4. HOW THE
NEW COUNCIL
PRESIDENCY AND
THE NEW
FOREIGN MINISTER
WOULD WORK,
AND THE
RELATIONSHIP BETWEEN
THE EUROPEAN
COUNCIL PRESIDENCY
AND THE
PRESIDENCY OF
THE INDIVIDUAL
COUNCIL FORMATIONS
I do not think I can usefully comment on this
question.
5. THE EXTENT
TO WHICH
THE UK GOVERNMENT
HELD ITS
RED LINES
Same reply.
6. THE EFFECTIVENESS
OF THE
EMERGENCY BRAKES
IN CRIMINAL
JUSTICE AND
OTHER MATTERS
And
8. THE TREATY'S
CRIMINAL JUSTICE
PROVISIONS
I presume that these questions refer essentially
to Articles III-170(3) [family law], III-171(3) [minimum rules
on mutual recognition], III-172(3) [definition of criminal offences
and sanctions] and III-175 [the European Public Prosecutor].
I was uneasy about earlier drafts of these sections
of the Treaty, and experience of cases under the Brussels Convention
leads me to be wary of automatic mutual recognition of judgments
in criminal matters. What is regarded as procedurally acceptable
in one country may be unacceptable in another, and a glance at
the website of Fair Trials Abroad is an indication of what may
be involved. It should be stressed that some aspects of British
judicial procedure do not command universal admiration in other
Member States either.
That said, assuming (as I do) that the state
of the world makes closer judicial co-operation in civil and criminal
matters essential, the new text seems to me to go as far as one
could reasonably expect in providing emergency brakes, provided
it is read together with Articles II-47-50 (Title VI of the Charter—Justice)
and the explanations set out in the accompanying Declaration.
(Those provisions of the Charter are essential guarantees of a
fair trial, and this illustrates the potential importance of the
Charter in the context of the Constitutional Treaty.)
I would draw the attention of the Committee
to the unique position of Scotland in this context. So far as
I know, Scotland is alone in the EU in being a "sub-state
entity" with an autonomous judicial system and an autonomous
legislature in criminal matters. It would be essential that the
UK mechanism for invoking the emergency brakes take account of
this. (Comparable problems might arise, though less acutely, in
relation to Northern Ireland and Gibraltar.)
7. THE HORIZONTAL
CLAUSES IN
THE CHARTER
OF FUNDAMENTAL
RIGHTS
It is important, from a legal point of view,
to distinguish between two quite different situations. The first
is where a clause in a text such as the Charter is used by a court
either as an aid to interpretation of another text or as a criterion
for choosing between two or more options to resolve a difficult
point of law. Even before the Human Rights Act, the British courts
had begun to refer to international texts such as the ECHR in
this way, and there are many examples in the case law of the Court
of Justice. That does not mean that the provisions of those texts
thereby became self-standing, directly applicable rules of British
or EC law.
The second situation is where a clause in a
document like the Charter becomes a rule of law that can be relied
on directly in judicial proceedings as a ground of action or defence,
or as the basis for a remedy. I believe the horizontal clauses
in the Charter are sufficient to ensure that its provisions cannot
be relied on in this way outside the context in which they are
expressly stated to apply. It should be recognised, however, that
the expression "acts of the Member States when they are implementing
Union law" (Article II-52(5)) potentially covers a very wide
range of situations and subject matter. "Implementation"
of Union law can be legislative, executive or judicial.
As regards the allegation that the Charter has
been, or will be, sneaked in by the back door by the Court of
Justice, it should be remembered that the Charter has already
been "addressed" to the institutions of the EU and therefore,
amongst others, to the Court. When the Heads of State and Government
solemnly adopt a text as a statement of fundamental rights (and
responsibilities) and address it to the Court of Justice, the
Judges of that Court are entitled to assume that they mean what
they say and intend it to be taken into account in the work of
the Court. (We did not, in my time, receive many copies of the
Beano.)
So it is not surprising that the Charter should
already have been referred to in judgments of the Court, or in
Opinions of the Advocates General, as a guide to interpretation
and application of EU law. But that is an example of the first
situation described above, not the second.
9. THE CONSEQUENCES
OF NON-RATIFICATION
Unless and until the Treaty is ratified by the
signatory States, it will not come into force (Article IV-8(2)).
Although it has been suggested that steps might be taken to exclude
or otherwise penalise a Member State which did not ratify the
Treaty, I do not understand on what legal basis this could be
done.
If the Treaty were not ratified, I would expect
the Commission and/or the Council to produce very quickly a less
ambitious treaty, not purporting to be a "constitution"
and covering the essential corrections and additions to the Treaty
of Nice, which could be adopted and ratified without too much
argument.
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