Examination of Witnesses (Questions 120-123)
PROFESSOR PIET
EECKHOUT AND
PROFESSOR GRINNE
DE BÚRCA
8 DECEMBER 2004
Q120 Chairman: In order
to know who rules the UK, he wants to know "Who rules okay".
Professor De Búrca: If
you want me to give you a serious answer, one answer would be,
what if there is a referendum here and what if the voters vote
for the Constitution, then which vote counts in your view—the
vote for the national parliament or the vote for the Constitution?
Q121 Mr Cash: You have
asked me a question and I will answer it. I will say that if the
referendum says that we are in favour of the Constitution, then
that would be a very powerful gearing lever to the European Court
and indeed the national courts to say, "The British people
have spoken in the referendum, therefore the European Court rules
okay".
Professor De Búrca: I am
speculating, but if, in voting for the Constitution, the British
people are saying, "Yes, the European Court rules okay",
then your view seems to be that the European Court should rule
okay because it has been voted.
Mr Cash: That is a perfectly reasonable
argument, but the crucial question is whether in fact the views
of the British Parliament, as expressed through an Act of Parliament,
should rule okay or whether every single thing, rather like in
the case of Switzerland for example, could or should be referred
to referenda. This is a fundamental question which goes back to
the primacy of the United Kingdom Parliament in legislating on
behalf of the British people.
Chairman: Can I say as a way of explanation
to our witnesses that often people think when they come into these
sessions it is for questions and answers. We usually have a mixture
of questions, answers, discussions and debates and I am sure we
are all enjoying the experience today, but it is my job as Chairman
to bring the evidence session to a close and make sure that all
the questions we hopefully wanted answered have been answered.
I am going to allow to Mr Connarty to ask one last question which
he says is going to clarify this whole area.
Q122 Mr Connarty: In your
interpretation, are you saying that if the British people vote
for this Constitution, they are voting to give the primacy and
rulings in law to the courts in Europe and not the courts in the
UK?
Professor De Búrca: No,
I am not saying that.
Q123 Mr Connarty: Can
you clarify because that seems to be Mr Cash's interpretation.
Professor De Búrca: No,
I am not saying that. My question to Mr Cash was a rhetorical
one that if he interprets the Constitution as saying it gives
the European Court the power to over-ride national courts, then
surely if the British people vote for that, then that is right
because that is what they are voting for, and he seems to believe
in the right of voters to determine what happens. I do not believe
that is what the Constitution says, but unfortunately it seems
that I am not helpful to you on this because I do not believe
the Constitution determines that question, I think it leaves it
open in the way that it has been open until now.
Professor Eeckhout: I would fully
support that. I think if the Constitution is approved, that means
that all the Member States and the people voting in favour of
it approve of the fact that the European Court of Justice is the
ultimate judicial authority to determine what European Union law
is and means. Then, it is for Member States to implement it and
it is still open to national courts if they think that their national
constitutional provisions do not allow them to give effect to
that and to do so in the courts, and it is open for Parliament.
What I wanted to add is that I do not know of any examples in
the last 30 years or more where the United Kingdom Parliament
has expressly legislated in conflict with European Union law.
I think there have been cases where legislation or provisions
have been set aside by the courts, establishing that they are
in conflict, but I do not think there have been any examples of
express legislation and of course if that were to be adopted,
we would face a new position.
Chairman: Can I to bring this evidence
session to a close and thank our two guests very much for coming
along today. I can say that it is quite an experience coming before
our Committee because, as you have probably found out today, we
have a range of expertise and generally helpfully people within
our Committee which we always say strengthens the work that we
do and that is so important. When we have the opportunity to speak
to two distinguished witnesses as we have had today, we take full
advantage of it. I can tell you that it is not unusual for witnesses
to come to this Committee and impress us as you have today. Sometimes
it feels a little bit exceptional when they also enlighten us
and I feel that your evidence to the Committee today both impressed
and enlightened us. I would like to thank you both very much.
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