Examination of Witnesses (Questions 27-39)
PROFESSOR SIR
DAVID EDWARD
AND PROFESSOR
EILEEN DENZA
CMG
17 NOVEMBER 2004
Q27 Chairman: Sir David,
welcome to the European Scrutiny Committee. In that welcome I
need to apologise because we are told we are in the hands of the
Whips and there will be a vote called at about 3.45 pm. Please
excuse us whilst we go to vote and interrupt our proceedings.
It is particularly pleasing for me to have you here today. Sir
David, you and I have met on a number of occasions, notably when
you were a judge in the European Court. It is not usually a good
thing when you say you have appeared before a judge often. As
I used to say, there are not many miners appearing before judges
unless it is bad news, but now there is a judge appearing before
a miner, so I am sure that is good news. Could I kick the session
off by asking our two guests how the new reference to the Union's
values and objectives in Articles 2 and 3 of the Constitutional
Treaty will assist the Court in interpreting EU law.
Professor Sir David Edward:
In my written evidence I have tried to indicate the two possibilities
here. One is that the court uses the objectives as a point of
reference. The other is that they use the objectives—and
the same applies to the Charter of Rights—as a basis for
creating rights or creating obligations. In the case of the objectives—and
it is not necessarily the same in the Charter of Rights—they
can only be used in the first way, as a criterion or point of
reference by which you choose between the two alternatives or
decide how you are going to interpret a particular provision.
In this case, I would be surprised if these objectives in general
really provided much assistance for the court, because, as I have
said, they are so comprehensive and wide-ranging that really it
is possible to find an objective which would support almost any
proposition you chose to select. Therefore I do not personally
see the objectives as playing any significant role in the work
of the Court.
Professor Denza: I would absolutely
agree with that. I would see their significance mainly as inspirational
and politically helpful to those who are thinking of joining or
applying to accede to the Union, but also as inspiration for those
imagining the progress of legislation. I think, unless you see
the Constitution as very narrowly, purely a treaty of existing
powers and competences and policies, there has to be this kind
of introduction—and it is very common in treaties as well.
So I think it does add value but not mainly as an interpretation
point of view.
Professor Sir David Edward: Perhaps
I should say that I was speaking entirely about the Court. I do
not think there is any doubt, as Professor Denza says, that, from
the point of view, for example, of admitting new Member States
they would have to sign up to those objectives as a political
matter, and that may be a quite different thing.
Q28 Chairman: Are there
any other practical effects which the aspirational language of
Articles 2 and 3 is likely to have?
Professor Denza: It might be relevant
in the context of subsidiarity. There are a number of objectives
which, at first glance, reading these, one might react by thinking,
"Is this not more a matter for national law or even for international
law?" Perhaps, just to pluck an example, "The Union
shall be respected for its cultural and linguistic diversity and
shall ensure that Europe's cultural heritage is safeguarded and
enhanced." That, I think, would be seen as very helpful to
those trying legally to enhance their status of minority languages,
which is quite actively on the agenda.
Q29 Mr David: I wonder
if I could ask a question about enhanced co-operation. There are
various views on the desirability or otherwise of that. The French
and Germans in particular think it should be used more extensively.
Do you think that will be the case? Do you see that as being desirable
or would you prefer to see an emphasis on opt-outs rather than
people coming together on enhanced co-operation?
Professor Sir David Edward: I
personally think you have to have some system of enhanced co-operation
in a Union of 25 or more. It is not realistic to suppose that
one can insist that all 25, 27, or whatever, move together at
the same speed in every respect. The significant feature of the
new provision on enhanced co-operation is that it provides a procedure.
It ensures that everybody has the chance to join, so you cannot
have little side deals. The system of opt-outs, although desirable
in some respects, is from a legal point of view rather messy because
you do not know precisely who is in this particular discussion
or not. It is clear under the provisions for enhanced co-operation
that everybody can take part in the discussion but only those
who are signed up to it can vote. I personally think that the
provisions are useful in that respect. Whether it will lead to
greater enhanced co-operation or act as a brake on it, I am not
very sure.
Professor Denza: I think I would
perhaps be rather more negative from the basis of the experience
that both at the Conference in Amsterdam and then at Nice there
was an enormous amount of very sensitive political bargaining
about provisions. Having got these provisions, they simply were
not used at all. The result has been wholly disproportionate to
the political effort in getting them. I agree, as a matter of
law, that in theory this is desirable; the problem is that if
all these procedural safeguards are there the result is that States
either do nothing or simply by-pass them. I am aware that this
has been happening in the criminal justice field, where States
have been doing little deals on the side but they simply keep
the numbers below the critical proportion of the total which would
trigger enhanced co-operation. Schengen worked simply because
there is nothing in international law to stop States in a way
going ahead as an advance guard. And the Commission were perfectly
well aware of what was going on. They never said to the Schengen
states, "This is improper, we are going to take you to the
court," they just desperately tried to get themselves as
closely aware as they could of what was happening. Speaking as
someone who comes to this originally as an international lawyer,
that, in a way, is how international law works: You do not have
to all march together; you can have a number of States who spearhead,
form a critical mass, and that begins to attract a gravitational
pull. That is what happened with Schengen. That is what is happening
with economic monetary union: the gravitational pull may or may
not with experience become almost irresistible. But I think a
lot of argument about very tight, procedurally structural provisions
is ultimately counterproductive because it does not take account
of how governments actually behave.
Q30 Mr Steen: Is it your
view that because the Commission has so few officials—in
fact it only has a few more than the entire staff of the Devon
County Council—this part of your evidence is affected by
the inability of the Commission to do its job because of how small
it is?
Professor Sir David Edward: I
doubt it. The size of the Commission and the manpower is undoubtedly
a problem, but whether if the Commission had more people you would
avoid enhanced co-operation, as opposed to moving together—if
that is the tenor of your question—I personally doubt it.
Of course, some people say that the Commission would become more
interventionist rather than less, and therefore perhaps you would
get more enhanced co-operation—or more opting out, whichever
way you care to look at it. So I do not think this particular
problem—there are many others, but not this one—has
anything to do with the size of the Commission staff.
The Committee was suspended from 2.43 pm to 2.51
pm for a division in the House
Q31 Mr Tynan: Good afternoon.
One of the new measures we have is the "emergency brake"
system. Could you tell me how effective the emergency brakes will
be in terms of criminal justice and social policy.
Professor Sir David Edward: Perhaps
it is useful to imagine a situation. You have a proposal in the
field of criminal justice which the United Kingdom thinks interferes
fundamentally with the criminal justice system in the United Kingdom,
so it can then operate the emergency brake system. The procedure
involves going up to the European Council but the brake is not
absolute. I think it is at that point that politics would overcome
law, so to speak. It would be important, I think, at that point
to negotiate a solution and I would strongly suspect a solution
would be negotiated. But to say it operates as a total brake is
clearly not the case.
Q32 Mr Tynan: How would
you see it protecting vital national interests as effectively
as the present system of unanimity?
Professor Sir David Edward: I
think you have to decide whether you want to make a trade off.
Obviously, if one wants to get something done in this area and
there are constraints—like terrorism and money laundering
and so on, reasons why you would want to get things done and things
done effectively and quickly—if you insist on unanimity
you might never get there. I think that, in one sense, the emergency
brake is not as effective as the requirement of unanimity; in
another sense, of actually getting things done and providing a
political mechanism for resolving the problem, it is probably
not bad.
Professor Denza: I agree with
that analysis. If the objection is a rather technical one, then
unanimity is better because that simply forces, at the technical
level, people really understanding the issues to bang on until
people really understand your problem and try to find a compromise
around it. The difficulty about escalating it to political level
is that in the nature of things those operating in the stratosphere
do not really understand the minutiae and the whole background
of the criminal justice system against which the problem has arisen.
You may get some sort of a deal and then the technocrats are simply
instructed that at Council they have to sort it out. Of course,
if it is sufficiently fundamental, there is also the option, for
the Council, of sending the whole thing back to the Commission.
That is the other option if there were a very fundamental opposition
to having this legislation at all. It is very much better than
the earlier text on which the Committee reported.
Q33 Mr Tynan: Would you
believe it would be a worthwhile compromise in order to achieve
qualified majority voting in certain instances?
Professor Sir David Edward: It
is the best you can get, probably.
Professor Denza: I think it depends
how committed you are to qualified majority voting, which in turn
depends on whether you think the problem with Europe is that there
is not enough legislation pouring out of its portals. If you think
there is much more of a problem of having good legislation which
leaves everyone happy and enforcing the legislation which you
already have, and in this area bringing a lot of it actually into
force, then I do not believe in qualified majority voting at all.
I am not committed to it.
Q34 Mr Steen: As I understand
it—and I do not know how up to date my information is—there
have not been any votes in the Council of Ministers since it was
established, so that in fact it does not really matter if there
is qualified majority voting.
Professor Denza: That is not entirely
right. There have been some, but you are right that it is very
rare. It operates as a threat: a kind of sword of Damocles, it
hangs over the recalcitrant Member. I have negotiated in the Council,
so I know what it feels like. Even when you think the United Kingdom
is right and everyone else is wrong, you are in a very exposed
and sensitive position and what happens is: "I am sorry,
if you cannot make some sort of compromise deal, we will push
it to a vote." I remember being out in Brussels as legal
adviser when there were some qualified majority votes adopted
to go through the agricultural process and the United Kingdom
invoked the Luxembourg Compromise, and because it was doing so
for a collateral reason, which was to do with its budget rebate,
the others just pressed ahead, and that created great shock waves.
Certainly there have been a number, though I do not have statistics
with me, but the effectiveness of it is the threat rather than
actually the Chairman pushing to a vote. There still is a great
effort to get consensus.
Q35 Mr Steen: Is there
any relevance? I mean, there is an enormous debate about the qualified
voting principle, but in reality is it an issue? I understand
about the sword of Damocles, but if there is qualified voting
there will still be a sword of Damocles.
Professor Denza: Yes.
Q36 Sandra Osborne: Could
I ask you a question about Scotland. The emergency brakes apply
to Member States but not to "sub-State entities"—and
I am not sure people in Scotland would like to think of themselves
as a sub-State entity, however. What protection, if any, is being
offered to Scotland, which has its own judicial and criminal justice
system but is not a Member State? Are there any other sub-State
entities in the EU which have legal but not political jurisdiction
and which may be similarly affected.
Professor Sir David Edward: So
far as I know, the United Kingdom is unique in having within the
single State three clearly different criminal judicial systems,
England and Wales, Scotland and Northern Ireland. "Sub-State
entities" is now the political science jargon for places
like Catalonia, the Basque Country and so on—that is why
I put it in quotes.
Q37 Sandra Osborne: It
is all right, the Scottish National Party are not with us today!
Professor Sir David Edward: The
problem is that this is a unique situation. No other country has
a situation where there is a legislature and a judiciary totally
independent . . . well, not totally independent, but separate
from the national parliament, and the existing proposal makes
no provision for that. Consequently, if you had a proposal which
seriously interfered with, for example, the Scottish system of
prosecution—and it is very different from the English—if
one found that this was simply not going to work in Scotland,
then there is at the moment no formal mechanism for the Scottish
Parliament to do anything about it. That is why in this context
up in Edinburgh there is quite a lot of effort being put in to
make the Scottish Executive and the MSPs aware of the need to
act early to find out what is going on and make their point of
view known. Because I think it will be too late if a proposal
comes forward unless Westminster is prepared to take it up, of
course, but it may be too late for the Scottish Parliament to
intervene.
Q38 Mr David: Following
on from what you are saying, it is incumbent on us here in Westminster
to ensure that if there is the early warning mechanism of the
treaty enacted then we do have a very close relationship with
the Scottish Parliament and Executive.
Professor Sir David Edward: I
think it is absolutely imperative. It is rather difficult to get
people to focus their minds on something that may happen two years,
three years down the line as a hypothesis, but that is what one
probably has to do.
Q39 Mr Tynan: On that
basis, could you give an illustration of a graphic demonstration
of the kind of issue that would be involved where Scotland might
suffer and the way you think it might be possible.
Professor Sir David Edward: Let
us take the 110-day rule. Under Scots criminal law, in principle
the period during which a person can be held in detention without
going to trial is 110 days. There are means of overcoming that,
but that is the principle. If a proposal were made which simply
ignored that fact, then there could be serious repercussions.
So it would be necessary to ensure that the European Prosecutor's
Office procedure either respected it or that there was some specific
provision enabling it to be overcome.
Chairman: That is an excellent example.
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