Examination of Witnesses (Questions 60-74)
PROFESSOR SIR
DAVID EDWARD
AND PROFESSOR
EILEEN DENZA
CMG
17 NOVEMBER 2004
Q60 Mr David: I was asking
about this so-called doctrine of "margin of appreciation"
and you made the point that it started life, as it were, in the
European Court of Justice.
Professor Sir David Edward: Yes,
in British law, we have tended to use the word "discretion":
"Is this within the discretion of the local authority or
is it mandatory on the local authority?" That is, in a way,
what it means: "Do you have an opportunity to do something
this way or that way or must you do it in a particular way?"
That is what the expression "margin of appreciation"
means. But it has acquired a new resonance in the context of the
Strasbourg jurisprudence, because Strasbourg tended for a period
to say, "You must do things this way," and then recoiled
a bit from that and said, "No, within certain areas you are
free to do things your way." That is what "margin of
appreciation" means in Strasbourg speak, rather than "discretion".
Q61 Mr David: What do
you imagine would be the method of operation with the European
Court of Justice?
Professor Sir David Edward: My
hunch—and it can only be a hunch—is that the European
Court of Justice—because there are now 25 Member States
and it is operating almost exclusively in chambers: even in the
biggest cases, very, very rarely will all of the judges sit together—will
tend to abstain from insisting on a single method of implementation.
Q62 Mr Cash: Is that not
really quite an extraordinary proposition, though? Because the
whole point of the Court is to make a decision at the end of the
procedure through the jurisdiction at which there will be one
law applying in relation to all those who are under its jurisdiction.
It is a pretty extraordinary idea that there could be some picking
and choosing as to the manner and extent to which in differing
States there would be a different kind of law. I may not like
that, but it makes more uncertainty and not less.
Professor Sir David Edward: We
had plenty of cases. Let me take gambling. Restrictions on the
operation of gambling is a restriction in certain cases on the
freedom of Ladbrokes, for example, to provide services in other
Member States because certain Member States say you cannot have
any lottery other than the State lottery. What the Court has said,
within limits, is, "Yes, it is up to Member States to decide
what they are going to do about gambling."
Q63 Mr Cash: Would this
apply to euthanasia, or, more particularly, the abortion question?
Professor Sir David Edward: That
is the existing situation. There was the case about abortion.
In Ireland, the issue was could you prevent people acquiring the
information that abortion was available in Britain although it
was not available in Ireland.
Q64 Mr Cash: That is because
of their constitution though as well.
Professor Sir David Edward: Yes.
But there have been plenty of cases in which the Court has said,
"No, you are at liberty to maintain a particular type of
public administration or rule which other Member States do not
have."
Q65 Mr Cash: Can we keep
our Parliament?
Professor Sir David Edward: I
do not understand what the point of that question is.
Chairman: Sir David, we have been trying
to understand it for a few years.
Mr David: It was a rhetorical
question.
Q66 Mr Heathcoat-Amory: The
more we have gone on, the less clear I am about the primacy provision
or the meaning of the Charter, the distinction between rights
and principles, or the extent of the Court's jurisdiction. Could
I turn to foreign policy, hoping that we do have some clarity
here because this goes to the very heart of what the Member States'
powers are there to do. Professor Denza, you have given evidence
about this and I know you have a certain number of concerns here.
Could I ask you in particular about whether the obligations in
Article 15-2 to abide by the foreign common policy, in a spirit
of loyalty and mutual solidarity and so on, might come under the
jurisdiction of the Court—in other words, might be enforceable—in
addition to the overall assertion in Article 5(a) that this shall
have primacy over the laws of Member States.
Professor Denza: Broadly the solution
for the Court with the Common Foreign Security Policy is to exclude
it almost totally, even though there are some uncertainties. There
is a little bit of confusion about the question of agreements
drawn up under what are now Union powers. The Court, if you like,
has a remit to guard the boundary. This is part of the institutional
aspect of intergovernmentalism which has been preserved, and it
is, I think, part of the United Kingdom Government's position
that the Court will never be able to correct them on such questions
as primacy or the enforcement of the duty of loyal co-operation.
Personally, I think this is entirely wrong on both counts. I would
tend to have had a system of competences which separated out Common
Foreign Security Policy, put it on a clearer basis—at the
moment it is completely undefined—but then left that to
the European Court who are extremely suited to distinguishing
clearly between questions of interpretation of international agreements
and questions of interpretation of the European Community Treaties.
Q67 Mr Heathcoat-Amory: Is
it not very dangerous to have uncertainties in this area? The
Constitution, above all, is supposed to give clarity. We heard
from Sir David earlier that at least it does divide up the competences
clearly. You are telling me that it does not bring clarity to
this area.
Professor Denza: I think they
are important. We can certainly both agree that there are important
areas where, if anything, it adds to uncertainty and it seems
to me that certainly applies to the Common Foreign and Security
Policy. At the moment, the Second Pillar—I think it is a
pity it keeps it out of the Court but at least its nature is public
international law, which is binding international law—is
not subject to the strongest form of primacy and particularly
does not involve the possible loss of national competence. That
is safeguarded at the moment by the Second Pillar structure. You
have integrated the whole thing, leaving Foreign and Security
Policy embedded within the list of competence which may not be
entirely defined to everyone's satisfaction, but the people who
dealt with exclusive competence, shared competence and supporting
competence broadly know that. In the middle, without any demarcation,
you have the Common Foreign and Security Policy. Does this, taken
as a whole, mean that there are all the competences and you would
have to guess where the Common Foreign Security Policy lies? Or
have you simply left it out on a limb and your only defence is
to say the European Court cannot get at it? Linked to the absence
of jurisdiction of the European Court, there is a big external
problem with giving the Union legal personality. One of the consequences
is that on foreign policy matters if action was taken by the Union—and
of course actual action in Macedonia, Bosnia, the Congo is actually
beginning to be taken—a Member State may be able to shelter,
if you like, behind the corporate veil and it may no longer be
possible to sue in its own national court. You cannot sue the
Union either before the European Court of Justice, so you have
taken this whole, very important, physically damaging area completely
outside any form of compulsory jurisdiction. In the meantime,
for the aspirants to the European Union and the rest of the world,
we are singing the praises of the settlement of disputes. This
is extremely important and I think there is a dichotomy there
which I am unhappy with.
Q68 Mr Heathcoat-Amory: It
seems to be extremely dangerous. We are going to be conducting
a partial autonomous national foreign policy and partly through
the Common Foreign Security Policy, and the legal position and
the enforcement powers and the legal liabilities are, as you described,
highly uncertain.
Professor Denza: Yes.
Q69 Mr Heathcoat-Amory: This
seems to be driving a dagger right through this Constitution,
which is supposed to bring clarity to the issue. Are you not worried
as a lawyer?
Professor Denza: That is what
I feel, coming at it as an international lawyer, because of how
you define sovereign state. This is almost lesson one in international
law: the definition of a foreign state. One of the key four elements—the
others being obvious: population, territory and internal maintenance
of order—is independence in the conduct of foreign policy.
That is what you see when the Soviet Union disintegrates, all
the network of new treaties, new embassies, new foreign relations.
Conversely, when you have an integration, as you did, say, with
East/West Germany and the two Yemens, then they fuse and have
one foreign policy. To leave this even partially uncertain in
the Constitution essentially given the remit of bringing clarity,
I regard as a very important reason for being unhappy.
Q70 Mr Heathcoat-Amory: Would
you therefore say that we will no longer have an intergovernmental
system of deciding common foreign policy? That seems to be a summary
of the position—contrary, of course to the assurances we
have been given.
Professor Denza: I would not go
quite so far as that. I would say the situation is uncertain and
confusing. Instead of being resolved and clarified by the Court,
it will be a matter of academic comment. For a long time I used
to say that our guarantee of continued intergovernmentalism was
that Peter Hain said that that would be the position. I did not
think that was wholly legally . . .
Q71 Chairman: Professor
Denza, in your memorandum you talk about the underlying problem
of conflict of loyalties for the new Minister of Foreign Affairs
with his dual role as a representative of the Council and a member
of the Commission. Could you explain and give examples of the
possible practical effects of such a conflict?
Professor Denza: Most obviously
the conflict would come to a head when you had a case, usually
on a matter of external relations, before the European Court and
the Council and the Commission were litigating. Take the World
Trade Organisation's agreement which is in enormous negotiation:
the Commission were arguing that they had exclusive competence
to sign it on their own and that Member States could no longer
sign it with them, and they were pushed aside. That had to be
resolved. You have provisions in the new Constitution that say
that the loyalty of the Foreign Minister is somehow accepted because
he takes instructions from the Council. It seems to me that will
undermine his position, not only legally but politically, in the
College of Commissioners. The British Government ultimately were
after a system whereby he would be accountable, as Javier Solana
now is, to the Council but, he would, in a sense sit in the Commission,
listen and there would be better integration. I am certainly in
favour of integration, and you might have a greater degree of
integration of functions of the Council and the Commission. At
the moment you have no integration of functions; you simply have
the unfortunate Foreign Minister with a foot in both camps. I
think it is a problem of a separation of powers, as well as perhaps
a presentational problem, because international organisations
generally do not have foreign ministers; States have foreign ministers.
That is a political problem.
Q72 Mr Cash: Would you
tend to agree—and I am not trying to be provocative, not
as regards you but as regards the problem—that really what
is going on is that there has been a desire to move to political
union, and through Maastricht, Amsterdam and Nice there have been
shifts but recognition, as the arguments have become more difficult
within each Member State or some of the Member States, that somehow
they have to come up with a solution to the problem, hence you
are actively and unreservedly supporting the Union's Common Foreign
and Security Policy and the spirit of law and mutual solidarity
on the one hand, but actually not matching it with the strictly
legal and institutional arrangements that go with it. So you have
a balance between the political aspirations on the one hand, which
they presume to prevail at the end of the day, and the legal position
being uncertain and confusing. Do you not think this is highly
dangerous, particularly as when one considers the contraction
of global matters these days and the difficulties that can come
from that?
Professor Denza: Yes, I agree,
I think there is a dichotomy between the position in law and the
question of enforcement.
Q73 Mr Cash: Do you think
the nation state would be well advised to clarify this matter
by saying no to this constitution?
Professor Denza: Perhaps that
is a little outside my remit.
Q74 Mr Steen: You keep
saying it is dangerous. What is the danger?
Professor Denza: The danger is
ultimately having a structure which is rather unrecognisable in
terms of the wider international community. For a long time Europe
has said that its legal order sui generis. I have always
seen it as a particularly well-developed and highly integrated
form of international law with special characteristics, but I
think it has always been nearer and nearer this dividing line—and
of course you have tensions both ways: you certainly have, as
Mr Cash says, a push to integration but you also have certain
aspects clarified, such as the conferral of power as well. That,
in a sense, was always there but it is politically helpful to
have it spelt out. If you were teaching this subject, as I do,
to post-graduate students of foreign relations and you were to
take them through the definition of sovereign state, it has been
for a number of years a little bit difficult to explain away things
like exclusive competence and the common commercial policy—one
said that was a rather small aspect of foreign relations, generally—but,
I think, taking this structure and saying that we retain complete
independence, there is no possibility of it somehow being held
that Common Foreign and Security Policy is in fact a shared competence,
so that, when the Union acts, Member States lose the power of
further action. It seems to me that that structure has become
not only sui generis but basically very unsatisfactory.
Professor Sir David Edward: I
do not want to prolong this discussion, because I am not an expert
on it, but I do not feel the same dangers as Professor Denza.
Of course there will be some uncertainties in this field. Just
to take an example, this is a foreign and security policy:
part of the shared competence is an area of freedom, security
and justice—and internal security is also external security.
It is not, in my opinion, possible in a document of this sort
to become so exhaustively definitional that you can define every
possibility. If one believes that there is a necessity to move
towards a more co-ordinated system of foreign policy than there
has been in the past, and one wants—and this is an assumption—to
get away from the three pillar structure of Maastricht, then it
seems to me that this is not a bad way of doing it. But, certainly,
to an international lawyer it presents difficulties.
Chairman: Sir David, Professor Denza,
thank you very much. It presents the same difficulties to the
politicians of course. Could I, first of all, apologise for the
inconvenience of the two interruptions, but they were outside
our control, and thank you both immensely for giving evidence.
I am sure your evidence will be of immense value to us when we
are preparing our report. Thank you very much.
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