Examination of Witnesses (Questions 40-59)
PROFESSOR SIR
DAVID EDWARD
AND PROFESSOR
EILEEN DENZA
CMG
17 NOVEMBER 2004
Q40 Mr Cash: I am sure
it is a very good example, but might it not also be dealt with
by the harmonisation of criminal procedures which are now going
through the treaty and directive system? Indeed, also I think
the Nice Treaty made provision for the European Court to be able
to prepare its own rules of procedure and it would seem to follow
from that, that with the overarching jurisdiction of the European
Court that would filter through in order to sort out discrepancies
between the differing legal systems. I am completely against that,
as you might imagine, but I am saying that I think the mechanisms
for achieving these objectives certainly appear to be there.
Professor Sir David Edward: The
mechanisms certainly are there by which, if you are legislating,
you could legislate in such a way as to overcome or displace the
110-day rule in Scottish procedure. That is certainly so. But
my point is that what is important if you are legislating, is
that you should be aware that there is a jurisdiction within the
European Union which has this as a fundamental human right, that
you cannot be held in prison for more than a certain period without
being taken before a judge and tried. If legislation were put
forward which ignored that—and it is quite possible that
it would be—then it creates a serious problem for the administration
of justice in Scotland. I gave evidence to a committee in France
which was looking at the prosecution system in France, and I explained
the 110-day rule, and they said, "You need not go any further.
It would be totally impossible to operate that rule in France."
It seems really surprising to people, but it would not seem surprising
to the Scots if it were abolished.
Chairman: Sir David, it would not be
surprising to David Hamilton, the Member from Midlothian, if he
were here, because I can remember David Hamilton being a victim
of that same rule during the miners' strike.
Q41 Mr Heathcoat-Amory: Could
I turn to the EU Charter of Fundamental Rights. When this was
drawn up, it was of course not legally binding and we were assured
as such by the Government. It is now, though, to be included in
the Constitution itself and as such it will have primacy over
the laws of Member States under Article 5 of the Constitution.
However, certain safeguards have apparently been built in, in
particular the explanations which purport to explain or limit
the application of the charter are not to be in the Constitution
itself but are appended to it. The courts are to have "due
regard" to the explanations—and that phrase appears
in the preamble to the Charter. What weight do you attach to those
words "due regard"? What do they add to the fact that
explanations exist anyway? Will they mandate the Court to pay
particular attention or can they be ignored in certain cases?
Professor Sir David Edward: It
is the distinction between "have due regard to" and
"shall be bound by" or "shall interpret in terms
of the explanations." "Due regard" I think means
first of all, you shall look at the explanations, and you shall
look at them seriously but you are not bound by them if your interpretation
of the principal text in a given situation leads you to a different
conclusion.
Q42 Mr Heathcoat-Amory: As
a limit on the expansion of the powers of the Court, you would
therefore not put very much weight on those words. Would that
be right?
Professor Sir David Edward: In
French it is "shall take duly into consideration" actually.
It is perhaps even slightly weaker than in English. No, I do not
say that you do not pay attention to it, but let me give you an
example. Explanations distinguish at the end between rights and
principles. They enumerate certain rights and say "These
are rights" and then they say "There are also principles,
for example . . . " but they do not say exhaustively which
of the provisions of the Charter are rights and which are principles.
Clearly the court would there pay due regard to the terms of the
explanation in saying, "Well, this gives certain examples
of principles, and this is like the ones they have identified
as principles" but—
Q43 Mr Heathcoat-Amory: Is
it clear to you which are the rights and which are the principles
in the Charter as drafted?
Professor Sir David Edward: It
is not clear to me which are the principles. Indeed, the explanation
tells us that in one case—and I cannot remember which—something
is both a right and a principle.
Q44 Mr Heathcoat-Amory: That
is a rather serious observation you have made because they are
to be interpreted in different ways under Article II-52. They
are treated quite differently in that article and yet you have
just told me that the distinction is largely meaningless.
Professor Sir David Edward: I
do not say the distinction is meaningless because if you look
at the explanation in relation to Article 52, it does enumerate
which are the rights that come from the European Convention. The
difficulty is that it does not make a clear distinction so as
to identify those elements in the Charter which are to be regarded
purely as principles and not to confer any rights at all.
Q45 Mr Heathcoat-Amory: So
"Equality between men and women must be ensured in all areas"
is that a right or a principle? That is Article 11-23.
Professor Sir David Edward: If
I remember rightly, that is one that is both. This is in the commentary
on Article 52: "In some cases an article of the Charter may
contain both elements of a right and of a principle; eg, Articles
23, 33 and 34." Article 33 is family and professional life
and 34 is social security and social assistance.
Q46 Mr Heathcoat-Amory: So
equality between men and women can be either a right or a principle
depending on the circumstances. That does not seem to advance
the case at all. This whole Constitution is supposed to bring
clarity and finality and certainty to who does what and what our
rights are. Everything you have said recently rather disappoints
me. We are in a fog here about what our rights are and what our
principles are.
Professor Sir David Edward: I
am not going to suggest that this is a simple document.
Mr Heathcoat-Amory: No.
Q47 Mr Tynan: Obviously
I am not a legal person. Article II-52(3) states that the rights
in the Charter which correspond to European Convention rights
are to be given the same scope and meaning as the latter.
Professor Sir David Edward: Yes.
Q48 Mr Tynan: On the other
hand, the Article adds that this requirement "shall not prevent
Union law providing more extensive protection." How can a
Charter right have both the same meaning and be more extensive
than the same right under the EHCR?
Professor Sir David Edward: It
is slightly difficult for us to understand this because we have
no charter of rights in a written constitution, but the German
constitution contains rights and these in some respects go further
than the provisions of the European Convention, so it is perfectly
possible for a Member State to give greater protection. The point
about the European Convention is that that is minimum protection.
As I understand it, as I would interpret it, what this means is
you are not to go below the level of protection provided by the
European Convention but you may go beyond it.
Q49 Mr Tynan: What would
be the position if the Union were to favour, say, Article 8 rights
over those under Article 10? Would this favouring of the Article
8 rights have to be read down so as to comply with European Convention
on Human Rights jurisprudence or would the ECJ say that this was
a case providing more extensive protection?
Professor Sir David Edward: Article
8 is not one which corresponds to a European Convention on Human
Rights right. Article 8 is new, the protection of data—although
there is a directive on protection of data. In fact the explanation
explains it. Article 10 is based on the European Convention, so
you could not go below the European Convention in Article 10 and
you could not use 8 to go below it.
Q50 Chairman: I think,
Sir David, Mr Tynan has asked the question about European Convention
on Human Rights.
Professor Sir David Edward: I
am sorry.
Professor Denza: You really have
these conflicts within the European Convention. One of the analyses
of the Charter recently published goes under the title "The
European Constitution: Bringing Europe Close to its Lawyers."
Mr Cash: I saw an interesting article
referred to in the Civil Contingencies Bill which I have just
been debating downstairs, and it says that in the latest issue
of Public Law Keith Ewing has an essay entitled "The
Futility of the Human Rights Act 1998" which goes pretty
close to the question of the European Convention. I am worried
about the impact on habeas corpus, for example.
Chairman: That is a problem for Mr Heathcoat-Amory
to ask his next question.
Q51 Mr Heathcoat-Amory: Could
we develop ideas about the jurisdiction of the European Court
of Justice, which some people are already referring to as "the
real Supreme Court" under this Constitution. Under Article
274 of part 3 of the Constitution the Court has powers to rule
on the interpretation of the Constitution and therefore the allocation
of competences. Some of us find the allocation of competences
very vague, using words like "shared competences" and
it is not clear what the powers of the Union will be over things
like employment law and economic co-ordination or foreign and
defence policy. Professor Denza, you have given evidence elsewhere
about this. Do you have any observations about how the powers
of the Court shift under the proposed Constitution and in particular
in these areas like foreign policy that do not immediately fit
into the shared or exclusive competences laid down in the Constitution.
In an area of, of course, the Court, with its supreme powers,
will finally decide without any appeal. Am I correct on that?
Professor Denza: It might not
be entirely without challenge on the question of who has the ultimate
fiat on questions of the division of powers. At the moment you
really have a situation where the Court takes the view that they
are the ultimate arbiter and a number of constitutional courts
have stated that their mandate comes from their own constitutions,
and, as long as the nation states remain independent sovereign
states—and I am a little bit concerned that some changes
might call that into question—I do not think that position
will be changed by anything on the face of the Constitution. That
said, I agree that the Court will inevitably tend not only to
regard itself as a constitutional court but to be generally regarded
as a constitutional court, and I think there will be a greater
level of deference and perhaps greater reluctance to challenge
on issues of primacy and supremacy in particular.
Q52 Mr Heathcoat-Amory: I
am aware that a number of national constitutional courts do not
accept the unrestricted primacy of the Court, but the Constitution
in Article 5 asserts without any qualification that the Constitution
and the laws emanating from it shall have primacy over the laws
of Member States. Is it not rather difficult, if we all agree
to that, to hold a simultaneous doctrine against that, that actually
that is not true and that in extremis a national court
should prevail? Surely this unresolved tension, a kind of standoff
of have the Convention, will be decided on the terms of the Union
if this Constitution is enacted voluntarily by the Member States.
Professor Denza: The very last
words you said I think were very important. If there has been
a nationally endorsed acceptance of this primacy—endorsed
by all the national parliaments through their national constitutions
and in a great many cases by referendums—then I think this
political balance does tip to the centre. I think it is difficult
perhaps to say it categorically changes it. It does not purport
to change it, but I think under the surface there is a sea shift,
if you like, in the centre of gravity.
Q53 Mr Heathcoat-Amory: You
would not agree with the Government that all we are doing here
is simply restating case law in the European Court of Justice.
You think we are going beyond that now and doing something much
more important which will give a greater status to the European
Court's primacy.
Professor Denza: Yes. The other
limb of why I have reservations about what the Government say
is that they imply that the primacy has been accepted law before
the UK joined. Although that is true for the First Pillar, it
was certainly not true for the intergovernmental aspects, which
have never been part of UK law. They are not a part of the European
Communities Act. So, as soon as there is a Bill, these parts will
not be separated and, simply a matter of international law, this
will bring it to the fore. Equally, it is very likely that there
will have to be litigation before the German Constitutional Court.
The Court made a number of qualifications in the Brunner
case, which was about the Maastricht Treaty, saying that it was
very important that foreign policy remained intergovernmental
and it was not brought within this international community procedure,
and I think they will be asked, and possibly a number of other
courts, as to whether that remains true when the strong version
of primacy—which is usually shorthanded by the case name
of Koster v Ennal—goes right across the Third Pillar,
which is beyond argument, on the text of the Constitution, but
also to the Second Pillar, where you still have left a lot of
argument, because the situation is left unclear by the Constitution.
You have the Government saying that it will remain intergovernmental
but it is extremely difficult to deduce that from the actual wording
of the text.
Q54 Mr Heathcoat-Amory: So
we have that awful combination of uncertainty plus an assumed
primacy of the European Court of Justice—the worst of all
worlds.
Professor Denza: That is my fear.
Professor Sir David Edward: I
do not wholly agree with what Professor Denza has said. For me,
the word "primacy" means nothing unless it is read in
the context of the European Court's case law. I have argued with
people who were at the Convention: "Why did you not say that,
where there is a conflict between a rule of Union law and a rule
of national law, the law of the Union shall be applied to the
extent necessary and the rule of national law shall not be applied?"
I have been told it sounded much nicer to say "primacy".
But that is what I understand it to mean: it simply means that
you cannot have two incompatible rules applied at the same time.
There are two points. First of all, the Court of Justice has already
had an enormous amount of experience of saying what are the competences
of the Union. There have been many cases on competences, common
commercial policy and so on. So it is not a new function for the
Court of Justice to be determining that, and, indeed, it is a
characteristic of that kind of court that it has to do that. Where
the document says you shall have power to do this, that or the
other and not to do something else, then somebody has to decide
whether in the specific case you have the power or not, and that
is given to the Court. It is not my personal experience that the
Court has tended to enlarge the competences of the Union. On the
contrary, while I was there I would have said that the Court was
rather cautious about that. But, apart from that, as far as the
German Constitutional Court is concerned, the decision of the
German Constitutional Court in relation to the Maastricht Treaty
was specifically in the context of the Maastricht Treaty. If Germany
ratifies this Constitution and therefore adopts it, the Constitutional
Court's position will, I think, be that that has become part of
the constitutional law of Germany. Of course the Constitutional
Court has said, "We reserve the right to say, that is not
what we signed up to," but I am not sure that is a tenable
position, because if every Member State ultimately reserved the
right to say, "We did not sign up to that," then the
reciprocity of the Treaty disappears, and the whole notion of
primacy of course is based on the idea of reciprocity.
Mr Cash: It seems to me—and
I have argued this for some time—that effectively what is
going on is the subsuming by the use of the internal parliamentary
processes in each of the Member States, of a higher order which
then becomes the ultimate jurisdiction. The Komptenz-Kompetenz
issue, that you and Professor Denza have just described in relation
to the Brunner case, has that effect. Indeed, you have
probably read—in fact I think I can see it on your desk—some
part of the Lords' scrutiny committee assessment of the issue
of primacy, which I put to the Prime Minister some months ago,
pointing out that the Lords' committee said that this question
of division of competences was a completely new feature, it was
a fundamental change, contrary to what he was saying, and that
it was not just a drafting exercise because there was a revocation
and a re-application of all the treaties, laws and rulings of
the Court of Justice, and a re-application of all those under
review primacy, which is contained in Article 1-5(a) I think it
is. The question I put to you is the one which I put to Jack Straw
in the House of Commons on 9 September, when I asked him if he
agreed that the effect of Article 1-5(a), which states that the
Constitution shall have primacy over the Constitutions and laws
of the Member States, had the effect of imposing the Constitution
over our own constitution and, indeed, our Parliament, to which
he replied, "Yes, of course it does."
Chairman: He gave you the answer there,
Sir David!
Q55 Mr Cash: It is a preamble
with a lot of meat in it, I may say so.
Professor Sir David Edward: The
other way of looking at it is: "The law adopted by the institutions
of the Union, in exercising the competences conferred on it, shall
have primacy . . ." The first point about this document is
that for the first time it clearly goes into the question of conferred
competences—which is new. Part of the criticism of the Court
of Justice in the early days was that it was inferred competences,
particularly in the line of the common commercial policy, so this
is an attempt to delineate competences.
Q56 Mr Cash: They are
pretty extensive competences, are they not?
Professor Sir David Edward: Certainly.
That is a matter for Member State choice.
Mr Heathcoat-Amory: But they are
not clear either. That is the point we have been making earlier:
they are not clear. They are shared or they are—
Chairman: I am sure we are not going
to have any barracking of our witnesses.
Mr Cash: Certainly not.
Q57 Chairman: Carry on,
Sir David.
Professor Sir David Edward: And
then you said: "shall have primacy over the constitutional
law of the Member States." The last text does not include
the word "Constitution" of the Member States; it simply
says "shall have primacy over the . . . law of the Member
States."
Q58 Mr Cash: That is the
point I put to Jack Straw and he said it still had the same effect.
Professor Sir David Edward: If
I may say so, it must do so, because the reciprocity of treaties
cannot depend on whether Member State A says, "I can't fulfil
that obligation because it is in my constitution" and Member
State B has no written constitution and says, "Well, I can
do it", or Member State C has a written constitution which
does not include that provision. Reciprocity of Member State obligations
cannot allow for a situation—and this is a basic principle
of international law—where a Member State signs up to an
obligation and then says, "Yes, but actually I had my fingers
crossed behind my back because my constitution says I cannot do
that."
Mr Cash: That is unthinkable.
Q59 Mr David: You will
be pleased to know I am not a lawyer but it seems to me that there
is a basic difference between the way the European Court of Human
Rights has traditionally functioned, dealing with human rights
issues by definition, whereas the ECJ has been primarily concerned
about economic issues. It seems to me that a fundamental difference
is now taking shape and the European Court of Justice will, for
the first time, be dealing with human rights issues and Member
States have a wide variety, as we have noted earlier, of policies
and principles underlining their social issues. I am told that
the European Court of Human Rights, when dealing with this contradiction,
has developed the doctrine of the "margin of appreciation".
Do you see a similar sort of thing happening in the European Court
of Justice, because for the first time it will be dealing with
those kinds of issues?
Professor Sir David Edward: First
of all, this will not be the first time, if you look at some of
the cases on asylum, the rights of third country nationals, the
expulsion of members of families and so on. Even when I was there,
the court was dealing with those kinds of issues—and that
goes back some time, so it is not totally new. But I am fairly
sure that "margin of appreciation" was an expression
used by the Luxembourg Court before it was used by the Strasbourg
Court.
Chairman: The Committee stands suspended
and we will reconvene as soon as we have a quorum back in the
room.
The Committee was suspended from 3.31 pm to 3.38
pm for a division in the House
| 
