Examination of Witnesses (Questions 140-159)
PROFESSOR ALAN
DASHWOOD CBE AND
MR MARTIN
HOWE QC
12 JANUARY 2005
Q140 Mr Tynan: If we refer to a previous
session and responses that were given, we did say that there would
be an interpretation of and by the courts in this country as regards
whether it be the Queen in Parliament or whether it be the Constitution
and it would depend on the wording of the Constitution to a degree
and what was finally agreed as regards how that would be imported
into UK law. Would that not be the case?
Mr Howe: Well, yes, I suppose
you could envisage an Act of Parliament which gave effect to the
constitution and perhaps contained some explicit provisions restricting
the ambit of the Charter. One could envisage that. In the absence
of such explicit provisions restricting the ambit of the Charter,
the general provision (which is now section 3, subsection 1 of
the European Communities Act 1972) would apply which is that the
English courts—I am sorry the courts of the United Kingdom,
I apologise—
Mr Tynan: It is because of the Scottish
accent!
Q141 Mr Connarty: We are very tolerant
about this.
Mr Howe: I apologise. That the
courts of the United Kingdom in applying Community law give effect
to the principles laid down by the European Court of Justice.
So short of an explicit Act of Parliament that would raise the
fundamental sovereignty issue that we have been discussing, in
general our courts would follow decisions of the European Court
regarding the scope of the Charter and the scope of its application
to the Member States.
Q142 Mr Tynan: Is that just your opinion
or do you think that would be open to discussion, debate and interpretation?
Mr Howe: I would have thought
everyone would agree with that last point. I think the question
of how widely the European Court will interpret the Charter is
open to debate but on the question of if it interprets it in a
particular way will our courts follow it, I would have thought
it is clear-cut.
Q143 John Robertson: Professor Dashwood,
Professor Piet Eeckhout has argued that "the concept of European
citizenship is likely to pull the Charter in the direction of
an ever-expanding field of application, and to turn it into a
Charter not merely directed towards the EU institutions but containing
rights on which European citizens can more generally rely."
Do you share the view that the concept of EU citizenship will
ultimately prove more important in defining the scope of the Charter
than the horizontal clauses?
Professor Dashwood: The notion
of European citizenship does let in consideration of fundamental
rights, when aspects of the right of citizenship are in issue.
What I would question is whether this was likely to happen to
a greater extent, or in a way that was more damaging to national
sovereignty, because of the Charter, than it would under the existing
case law of the Court of Justice, where the Court draws on the
European Convention and the constitutional traditions of the Member
States in formulating the kind of rights that have now been written
out in the Charter itself. So it may be that human rights will
loom large in the development of the concept of citizenship, but
I really doubt whether the inclusion of the Charter in the Constitution
will make much difference.
Q144 Angus Robertson: In a previous session
we discussed with other eminent witnesses the issue of constitutional
patriotism and one of the witnesses, Professor de Bu"rca,
suggested to us that the Charter may serve to strengthen the political
legitimacy of the EU. On the other hand, many of the Charter rights
clearly fall outside the scope of EU law and the ECJ judges interpreting
the Charter lack both popular legitimacy and the broad social
and political support that one see in the US Supreme Court and
the German constitutional court. Do you share Professor de Bu"rca's
view?
Professor Dashwood: I have always
felt less enthusiastic than a lot of my academic colleagues do
about fundamental rights as a way of arousing enthusiasm for the
European Union, if only because they are rights which are not
reserved for nationals of the Member States but by definition
apply to everybody. So I am not sure that I agree with Professor
de Bu"rca that the Charter is going to be a good way of arousing
constitutional patriotism. But I am quite attracted by that notion
as a way of helping people to feel a bit more enthusiastic about
membership of the European Union. I think that the Constitutional
Treaty from that point of view is a step in the right direction.
I think it is a better text for what I call the well-intentioned
general reader, who wants to find out something about the way
in which the Union is fundamentally organised. It is still quite
a tough read, but Part I of the Treaty does, I think, paint a
much clearer picture of the essential nature of the Union than
a person who was not an expert would be able to derive from the
existing texts, and that may be a first step towards attracting
a bit of constitutional patriotism.
Q145 Mr Connarty: Martin, did you want
to comment?
Mr Howe: Possibly two points.
One is that the Charter contains a number of provisions which
seem to have no relevance to any existing powers of the European
Union but relate, if you like, explicitly to the core functions
of the Member States such as rights of children, for example,
and that does make it rather a puzzle as to why a Charter of Rights
which is primarily focused on reining in the European Union and
subjecting its institutions to a regime of rights should contain
such provisions and, of course, the problem with it containing
those provisions is that they can be used as interpretive aids
to expanding the scope of Union powers in future, both at a legal
level and at a political level. A second point raised is one of
legitimacy and contrasting the political legitimacy of the European
Court in taking these decisions with national constitutional courts,
and of course the fundamental problem with fundamental rights
is that you end up, however you dress it up, with courts and judges
taking decisions which contain a large element of political decision
rather than pure legal logic. Many of my colleagues in the legal
provision, who seem to think it is best if the world is run by
lawyers and judges think this is a good thing, but of course it
does create a severe problem of conflict if you have a conflict
between the democratically elected legislature or government and
judges on an issue that is essentially political, and although
the United States' Supreme Court is obviously deeply embedded
in their constitution, and in that sense has legitimacy, it is
by no means universally accepted in the United States that a number
of the doctrines that it has developed of an essentially political
nature, based on very vague wording of the constitution, are legitimate
or it is properly restricting itself to its judicial role by engaging
in such activities. If you have a court which has less grounding
in historical and political legitimacy but engages in that kind
of expansive interpretation or adventurous interpretation, then
I think the problem of political legitimacy becomes even greater.
Q146 Mr Heathcoat-Amory: I want to explore
the possible conflict between the two Charters on Human Rights
that we are going to have. We already have the European Convention
on Human Rights, which is now part of our domestic law, and we
are going to have a separate legally binding Fundamental Charter
of Human Rights. The Constitution attempts to reconcile them by
saying that when these two Conventions have similar rights they
are to be given the same scope and meaning, which I understand.
However, the Constitution also says that this should not prevent
Union law providing more extensive protection. I cannot reconcile
those two statements. Perhaps our witnesses can enlighten me.
Mr Howe: The Charter of Fundamental
Rights of the European Union in part contains Articles which are
linked to corresponding Articles in the European Convention on
Human Rights, and if one looks at the explanations which have
somewhat of the semi-formal status under the Charter the linkage
is made explicit. There are other parts of the Charter which have
no direct correspondence in the European Convention on Human Rights,
primarily those relating to economic rights such as the right
of collective action and the chapter on solidarity. It is possible,
I suppose, in the contexts where the Articles do correspond that
the way you interpret the provision saying the Union may confer
more extensive rights is to say that you have to draw a circle,
which is the rights conferred by the European Convention on Human
Rights, and you then have to draw a circle of the corresponding
rights conferred by the Charter which is either the same size
or larger in some respect, and that may be what that provision
is aimed at. I think in practice there is another point relating
to possible conflict between the EU Charter and the European Convention
which is to do with which courts engage in the exercise of interpreting
and applying these rights. One would expect the European Court
of Justice (or the Court of Justice of the European Union under
the Constitution) to give greater weight to considerations such
as the interests of the Union when it comes to conflicts with
private rights as compared with the Strasbourg Court.
Q147 Mr Connarty: Professor Dashwood,
do you wish to offer an opinion?
Professor Dashwood: Only a very
brief one, Chairman. This kind of provision is commonly found
in international treaties. The ILO Conventions, for example, set
minimum standards and the members of the ILO are entitled to go
further in providing a greater degree of protection than the Convention
requires. Of course, in the world of fundamental rights there
is a balancing that always has to be done. A familiar example
would be that you have to balance the right of privacy against
the right of free speech. It could be that the balance which is
struck in the future Union differs a little bit from the balance
which is struck by the Strasbourg Court under the Convention.
But I do not see this as a serious problem, and it is one which
I expect the courts would work out between themselves over time.
Q148 Mr Heathcoat-Amory: Can I ask on
that specific point, that would then surely breach the requirement
that the rights are to be equivalent? In a Constitution which
is supposed to bring clarity to the citizen about their future
rights and about the workings of these institutions, it seems
to create a great deal of confusion. Professor, what you are saying
is we will have to hope that future judges will muddle along in
some way to get a solution we can all live with. Is this really
the way to proceed constitutionally?
Professor Dashwood: It is certainly
the way that most constitutions do proceed, including the constitution
of the United States.
Q149 Mr Connarty: Not so much a rhetorical
question, almost a cry of despair!
Professor Dashwood: I am sorry,
I cannot do better than that.
Q150 Mr Connarty: Mr Howe, is that the
way constitutions should proceed? Is that a question you can answer?
Mr Howe: Perhaps it is a question
of it is not the way constitutions should proceed but perhaps
a lot of them do, in that vague phrases are not unknown in constitutions
of every kind and variety, and I think from a lawyer's point of
view the problem with vague phrases is that they give the courts
and everyone else a lot of scope for interpretation which is perhaps
not wise that they should have.
Q151 Mr Heathcoat-Amory: This is rather
important. On the Convention on the Future of Europe on which
I sat our instructions were to bring clarity and indeed it was
constantly emphasised in the Convention that the "who does
what" question was finally to be settled and therefore the
escalator upwards to ever-greater power was going to stop. Both
our witnesses in their various ways are now saying that this did
not succeed in the Constitution. Would that be fair?
Professor Dashwood: I do not think
I want to admit quite to that. Any vagueness in the Charter of
Fundamental Rights is unsurprising, because it is no greater than
you would find in any similar text on fundamental rights. But
I think there are elements of the Constitution where there is
greater clarity. I think, for instance, the categories of competence
do make some things clearer which are not clear under the existing
treaties; for example, that the powers of the Union are normally
shared with the Member States and only very exceptionally exclusive.
If you know a lot about Community law you could have worked that
out, but it is very useful that it should be stated on the face
of the Constitution.
Mr Connarty: Can we move on?
Mr Howe: Just on that very important
point, it is a point that perhaps goes beyond the Charter itself.
Reading this Constitution I cannot see any indication that the
escalator is stopping, still less any indication that it is possible
to turn the escalator's direction back in any significant respect.
Although there are certain provisions relating to national parliaments
they are not very substantial in terms of the role they give to
national parliaments.
Mr Connarty: Thank you. Moving
on to look at the jurisdiction of the European Court of Justice,
Mr Cash, I believe you had a question.
Q152 Mr Cash: Article I-18(3) of the
Treaty requires the Union institutions, the Commission et cetera,
including the Court itself, to "practise mutual sincere co-operation".
We are often told that the Constitution is effectively a consolidation
but of course this provision does not appear in the existing Treaties,
as many other things do not either, but that is by the bye. So
are you aware of any court in a liberal democracy at all which
is obliged to carry out its functions in mutual and sincere co-operation
with the executive, that is the government?
Professor Dashwood: This is a
piece of clumsy drafting. The principle of mutual sincere co-operation
is one which makes perfectly good sense as between the political
institutions of the Union. For instance, there was an occasion
that I was involved in when I was working for the Council's Legal
Service, where the European Parliament, which had to be consulted
on a piece of legislation which was being adopted, failed to give
its opinion in time. The legislation had to come into force before
the end of the calendar year, and the Council therefore went ahead
without having received an opinion from the Parliament and adopted
the legislation. The validity of this was then challenged in the
Court of Justice, and the Court took the view that the Parliament
had no right to object to this flouting of its prerogatives because
it had failed to comply with the duty of loyal co-operation between
institutions. That is the principle to which it was intended to
give effect here. I agree that better drafting would have made
an exception in the case of the Court of Justice, but I do not
for a moment believe that the Court will interpret this as meaning
that it has to give some kind of preference to the other institutions
of the Union in the course of litigation.
Mr Howe: From the point of view
of tradition where we have clear separation between courts and
executive and legislature, it is worrying. It should not have
been put in here and have included the Court of Justice within
the institutions to which it applies. I am slightly more worried
about the way the Court will approach this because the one has
seen consistently in its judgments, although it has never accepted
that it is its job to give decisions which favour the Commission
or the Parliament or the Council of Ministers or do their bidding,
that it accepts a sort of duty to further the whole process of
integration under the treaties, and my concern is that this wording
would strengthen that particular tendency and the Court would
regard itself as under a duty to co-operate in terms of finding
alternative solutions under the Treaty that allow the whole process
to go forward further and faster.
Q153 Mr Cash: Could I therefore simply
ask this question of both our witnesses. We know that under Article
220—and this relates back to the point I was making on the
earlier provision on which I commented—the Court of Justice
"shall ensure that in the interpretation and application
of this Treaty the law is observed". We know that under Article
1 (5) the law is specifically referred to, which includes the
Constitution for this purpose, in relation to the manner in which
the question of primacy is to be interpreted. The European Court
is given that function. The question when we get on to the revocation
arrangements in the transitional provisions at the end of the
treaty is that all these treaties will have to be revoked and
the acquis communautaire, the whole shooting match in other
words, the whole bundle, is going to have to be revoked and then
reapplied under the new arrangements for primacy. Now, in that
context, surely where the Court is to practise mutual sincere
corporation it raises really a rather important question as to
what its role will be in the context of primacy in those arrangements
related to the revocation and reapplication of the law. It is
not a straight consolidation and we know for example that this
emphatically is not in the existing Treaties anyway. Do you have
any thoughts about that because it is a thing that worries me
and I am given to believe it worries the Prime Minister hence
the reason why he decided to give a referendum?
Professor Dashwood: You are still
referring to practising mutual sincere co-operation?
Q154 Mr Cash: But I am saying that in
the context of revocation and reapplication of those laws, including
acquis communitaire, with primacy slotted on top (which
has to be conducted through the interpretation of the courts)
that this puts a completely new spin onto the question of fundamental
change.
Professor Dashwood: With respect,
I do not agree that it does put a new spin on this matter. The
principle of mutual sincere co-operation is part of the existing
acquis. It is a principle that applies between the institutions,
though the Court has certainly never applied that principle to
itself. And, of course the principle of primacy is part of the
acquis, and the Constitutional Treaty provides for the
jurisprudential acquis to be carried over into the new
constitutional order. I agree that it is a piece of clumsy drafting,
but I really have no concern at all that the Court of Justice
is going to read this little sentence as meaning that somehow
in the future it is going to have to be kinder to the political
institutions of the Union than it has been in the past, or that
it must somehow co-operate actively with the political institutions.
It seems to me that Article III-220 which you cite is the guarantee,
because the Court is required to uphold the law, and the law has
to be applied by the Court of Justice in an objective, equal way.
Mr Howe: The point referred to
is quite an important legal point, although it is not that apparent
in the general debate on this subject, which is that the European
Union as established by this Constitution will in fact be a completely
new legal body. It is not the same as the existing European Union
or the existing European Community, and indeed Article IV- 438
states: "The European Union established by this Treaty shall
be the successor to the European Union established by the Treaty
on the European Union and to the European Community." In
principle because it is a new body one could argue that is another
reason perhaps why the primacy question is open to being looked
at all over again.
Q155 Mr Cash: That is the point.
Mr Howe: Certainly I do not think
the position on primacy will be any weaker than under the existing
acquis but there is a possible argument that it is stronger
because it is a new body, it is a new Union, and it has got fundamental
legal sovereignty, at least in its own eyes and in the eyes of
the Court.
Q156 Mr Bacon: I notice Professor Dashwood
and Mr Howe were disagreeing. Professor, you were shaking your
head earlier when Mr Howe was speaking. I would just like to know
if it is not really going to make any difference and you are absolutely
sure that it is not going to mean that the Court has to be kinder
to EU institutions during litigation than to other litigants,
as it were, what on earth was the point of putting this clause
in because it was not there in the old Treaty, was it? What was
it put in for?
Professor Dashwood: The reason
it was put in was to recognise a principle which is important
as between the political institutions in the kind of case of which
I gave an example.
Mr Connarty: The Commission versus
Parliament or the Council versus Parliament.
Q157 Mr Bacon: You mean that it is intended
specifically to exclude the Court?
Professor Dashwood: That is the
way the principle has been developed. I must say, when I read
it, I read it as simply a transcription of that principle. Of
course it has never applied to the Court in case law to date,
but it is recognised by the Court as one of the important organising
principles of the constitutional order.
Mr Connarty: Can I just follow
up a point, although it says in the way the question was phrased
"requires the Union institutions, including the Court",
does it actually say "including the Court" in reference
to that in the Constitution?
Q158 Mr Bacon: "Each institution"
is what it says.
Professor Dashwood: You have a
list of institutions and then the next paragraph, paragraph 2,
in the first sentence talks about the institutions acting within
the limits of their powers.
Q159 Mr Bacon: It says "Each institution".
It is not a question of clumsy drafting, it is pretty clear on
its face is it not?
Professor Dashwood: It says: "Each
institution shall act within the limits of the powers . . ."
and then there is a separate sentence which says that the institutions
"shall practise mutual sincere co-operation". I have
no doubt that the Court will interpret that sentence as meaning
the other institutions—
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