Examination of Witnesses (Questions 160-179)
PROFESSOR ALAN
DASHWOOD CBE AND
MR MARTIN
HOWE QC
12 JANUARY 2005
Q160 Mr Connarty: And not itself
Professor Dashwood: Not itself.
Q161 Mr Heathcoat-Amory: Can I make a
point. I am very surprised by this comment that it really does
not matter and it was almost an oversight of no particular significance.
Actually that clause was changed. It used to refer to "full
mutual co-operation"; it is now "mutual and sincere
co-operation". So a great deal of thought has gone into that
and when I and others tabled amendments to try and get these sorts
of things changed we were told that our amendments were of no
consequence. This is a deliberate instruction, after consideration,
to the existing institutions to behave in a certain way. To be
fair to Mr Howe, this is an entirely new institution, the new
Union. Would Professor Dashwood still maintain that this is all
only sloppy and really does not matter? This is an instruction
in a Constitution that is going to have primacy over the laws
of Member States so how can he dismiss it in this way?
Professor Dashwood: Imprecise
drafting is regrettable when it is not deliberate, but I do have
no doubt that the Court will interpret that sentence as not referring
to itself. It is not something which came out of the blue. It
is a sentence which simply expresses a principle that already
applies under the existing constitutional order.
Mr Connarty: I think we have a
clear position. We have had two views and obviously that is why
we are taking evidence. We must obviously assess the weight we
give to these views. Mr Harvey, you have a question.
Q162 Nick Harvey: The European Court
of Human Rights when ruling on the ECHR has developed a doctrine
of "margin of appreciation" when dealing with moral
and social issues where there is a wide divergence between different
states that are signed up to the Convention. What do you think
will be the approach of the ECJ towards the Charter? It is said
to have shown political sensitivity previously on the issue of
abortion. On the other hand its form book normally is that it
is very keen to promote legal integration. How do you think it
will develop in dealing with the Charter? Will it follow a similar
margin of appreciation?
Mr Howe: I think in practice it
will have to start off by doing it. The European Court of Justice
has a very similar doctrine to margin of appreciation which goes
under a different name, the "doctrine of proportionality".
For example, when considering whether or not a measure which may
interfere with trade between Member States is justified or not,
it asks whether it is proportionate to the aim to be achieved.
I think that conveys a very similar notion of Member States having
a certain margin of discretion. The Strasbourg Court refers to
this as the "margin of appreciation" so although the
labels may be slightly different the theory, the doctrine being
applied is likely to be similar, but of course what we have seen
with the European Court of Justice over time is that it makes
the margin available to Member State progressively narrower. For
example, in the field of tax harmonisation Treaty articles which
have been there 50 years are now being interpreted in a much more
restrictive way regarding the scope of the powers of Member States
to arrange their tax systems in a particular way than they were
originally, so I would expect to see there would be margins of
appreciation recognised but as time goes on they will get narrower
and narrower.
Professor Dashwood: I think I
agree with the first half of that but not with the second half.
The Court's approach to this kind of balancing exercise differs
in different parts of the constitutional order. I think certainly
at this time of day you would expect it to leave very little margin
of appreciation to the Member States in the field of tax harmonisation
whereas in the field of human rights you would expect the margin
to remain very much what it has been up to now, in the way in
which the Court has developed its doctrine of fundamental rights
derived from the European Convention and the constitutional traditions
of Member States. I do not expect the Court's general approach
to change.
Mr Connarty: We will move on to
the consequences of the collapse of pillars.
Q163 Angus Robertson: Will the application
of the principle of direct effect to what are now Framework Decisions
cause problems? Will it not make it even more important that the
drafting of such instruments is more precise and intelligible
in the legal systems of all Member States?
Mr Howe: Yes. It was originally
thought that Directives had no direct effect, that they were instructions
to the Member States and they could be enforced therefore by direct
action but they did not confer enforcement rights on citizens.
The European Court then devised the doctrine of "direct effect
of Directives" by saying although they would not be binding
as between citizens, they would bind the state, so if you have
an action between the state and the individual, the individual
is entitled to say, "The state is acting in breach of the
Directive and therefore I rely on this right in these proceedings."
One of the conditions laid down by the European Court for direct
effect is that it identifies sufficiently precisely the content
of the right being conferred. Obviously an effect of bringing
the fields of criminal and civil justice in particular within
the first pillar (or collapse of the third pillar into the first
pillar) will be that potentially Directives, or Framework Decisions
rather under the new terminology, will be relied upon in the same
way as Directives are under the current law.
Q164 Mr Connarty: Professor Dashwood,
do you wish to offer an opinion?
Professor Dashwood: I think it
is true that the case law on the direct effect of Directives will
be applied to Framework laws including in the area that was formerly
covered by the third pillar. I think the second pillar is a different
issue. I do not know if you want me to go into that.
Q165 John Robertson: The `collapse' of
the three pillars will mean that Framework laws fall under the
same enforcement regime as presently applies to the EC Directives.
Is there a risk that this will lead to excessive rigidity and
too much power for the Commission in the transposition of measures
in the criminal justice field?
Professor Dashwood: I do not think
this is a problem for criminal justice any more than for any other
area of Union law. The case law on the direct effect of Directives
is complex and not easy to explain. I have to explain it to students
every year and I find that quite a job. However, in my study of
the Constitutional Treaty this is not an issue that has struck
me as a serious one. I do not think that it is a problem of rigidity,
it is really more an issue of uncertainty. The direct effect of
Directives leads to a measure of uncertainty because the legal
advisers to individuals to whom Directives apply may find it difficult
to decide whether they are directly bound by the terms of the
Directive or not, and we will have another area in which that
will apply. That, of course, could be mitigated if, as we are
always being promised, the quality of Union legislation improves
in the future.
Q166 John Robertson: We have seen in
other areas how the Commission can be inflexible and if they get
involved in the criminal justice field could we see that same
inflexibility and rigidity?
Professor Dashwood: I suppose
it is possible.
Mr Howe: I think there are really
two distinct issues here. One is the direct effect issue and the
other is Commission involvement. One possible consequence of direct
effect is not so much rigidity but that it produces a fertile
field for lawyers because it expands the scope for litigants,
say, in the criminal justice field to argue that this law cannot
apply to me because it is breaching my rights under this or that
framework law. On Commission involvement I think that is linked
also with the question of the expansion of qualified majority
voting powers in the criminal justice harmonisation field, and
one would therefore expect that we would have more laws in this
very sensitive area that we might not like. There is the emergency
break as a fall-back ultimately, but that may not be that easy
to invoke routinely.
Q167 Mr Connarty: Thank you. Moving on
to foreign and security policy. We note that most foreign and
security policy is excluded by Article III-282 but it does not
extend to Article I-15 (I-16 CTE) which provides: "Member
States shall actively and unreservedly support the Union's foreign
and security policy in a spirit of loyalty and mutual solidarity",
et cetera. Is there anything in Article I-15 of the Constitutional
Treaty which is excluded by virtue of that Article III-282 or
would the Court be able to review whether a Member State had in
fact "actively and unreservedly supported" the common
foreign and security policy or was conducting itself "in
a spirit of loyalty and mutual solidarity" with this policy?
In other words, do you think the Court could become involved in
making such a judgment?
Mr Howe: There is on the face
of it a bit of an anomaly here. May I make a very procedural point
about the Article numbers. My written evidence uses the Article
numbers from the IGC text and the question you asked me used the
Article numbers from the IGC text—
Q168 Mr Connarty: I have used the ones
that were supplied by the Clerk to the Committee.
Mr Howe: Under the final signed
Treaty text the Articles have changed slightly and it is Article
III-376 which is the one relating to the Court of Justice of the
European Union.
Q169 Mr Connarty: I think we have worked
out that there are two sets of figures here, one from the previous
constitution clauses and the other one in brackets being the up-to-date
one, with no explanation being entered by the Clerk as to why
there are two sets of figures!
Mr Howe: Moving on to the substance
of it, there is an anomaly in that Article III-376 ( using its
new numbering) excludes the jurisdiction of the Court of Justice
from applying to Articles I-40 and 41 which are the overall provisions
in Part I relating to the common foreign and security policy,
and also Chapter 2 of Title 5 of Part III, which are the longer
bits of the CFSP, but there is no exclusion to the Court of Justice
applying it to Article I-16, which is the one containing the solidarity
clause. One view of it is simply to say it is a drafting anomaly
and it is intended that the Court shall have no jurisdiction over
the common foreign and security policy, full stop. Another possible
interpretation, I suppose, is to say it was intentional that of
all of the provisions of the CFSP which have not been excluded
from its jurisdiction the solidarity clause is the one that is
there, and therefore although the Court does not have substantive
jurisdiction over the content of the policy it is intended that
it shall have some enforcement powers over backsliding Member
States which do not back the policies which have been adopted.
Which of these interpretations is correct will be for the judges
of the European Court to decide if the Constitution is ratified.
Q170 Mr Connarty: Do you think it would
be a wild example of a European Union policy that was not for
invading Iraq and a country like the United Kingdom who decided
to go ahead and do so?
Mr Howe: That might be an example.
I think on Iraq there was no common policy.
Q171 Mr Connarty: I am saying if there
was.
Mr Howe: If there was a common
policy that had been adopted and then a country departed from
it, then these judicial questions can depend upon the political
context in which they are decided as to what outcome the Court
reaches.
Q172 Mr Connarty: Professor Dashwood?
Professor Dashwood: The solidarity
clause in Article I-16 is developed in Article I-40, particularly
paragraph 5, which has a much more muscular requirement about
consultation. Article I-40 is one of the provisions which is expressly
excluded by Article III-76 and that is why, if I had to argue
this point in the Court of Justice, if the issue had been raised
about the United Kingdom or some other Member State failing to
actively and unreservedly support the Union's common foreign and
security policy, I would feel fairly confident in arguing that
the exclusion with respect to Article I-40 prevented that issue
from being raised in judicial proceedings. But, as Mr Howe said,
that is an issue which would ultimately have to be resolved by
the Court of Justice.
Mr Heathcoat-Amory: Could I ask
you a question I asked you earlier in a different way as another
example. Why should the future conduct of British foreign policy
and whether or not it is subjected to judicial review by the European
Court all be left to the vagaries of a future court case rather
than made explicit in a Constitution that we are now being invited
to sign up to? Do either of you have an explanation as to why
these ambiguities remain because they are certainly not due to
oversight because these precse points were made during the proceedings
when this clause was drawn up?
Q173 Mr Cash: Precisely.
Professor Dashwood: That is not
a rhetorical question?
Mr Cash: No:
Q174 Mr Heathcoat-Amory: It is partly
rhetorical but you are invited to make some observations on it.
It is a serious point. We are told this brings clarity and certainty
to the division of powers. Everything we have heard this afternoon
undermines this and I wonder if there is an explanation for this.
Is it deliberate and due to the view that judges in future may
have more sense than politicians or is there another explanation
which has occurred to our witnesses?
Professor Dashwood: I hope not
quite everything has given the impression that the Constitution
is an impenetrable muddle. It is certainly not the view that I
take of it. I am perfectly satisfied with the explanation that
I have given, that the issue of co-operation is covered by the
exclusion that applies to Article I-40. So I do not think it is
an issue that will cause legal problems in the future.
Q175 Mr Connarty: But on the fundamental
question I was asking about whether the Court would be able to
become involved in interpreting whether a country had or had not
breached that clause I-16, there presumably could be a situation
in which they may want to become involved in assessing and interpreting
that, should an alleged breach be referred to them?
Professor Dashwood: The fact that
Article I-16 is not mentioned in Article III-376 means that the
issue could be raised in a court, but I am confident that it would
be resolved in the way that I am suggesting because of the relationship
with Article 1-40.
Q176 Mr Connarty: Martin, do you have
a view?
Mr Howe: I agree that is an argument
in favour of the anomaly interpretation rather than the intentional
exclusion interpretation. I think that the point raised by Mr
Heathcoat-Amory goes back into the drafting history of the Convention
and it is possibly a point in which the dreaded Travaux Preparatoires
might have to be looked at in aid of interpreting the provisions
of the final Treaty. My experience of going and looking at the
Travaux Preparatoires to interpret the Treaties is that
they are often not very helpful either way because an amendment
may have not been made either because it was thought to be unnecessary
or because it was thought that they did not want that effect to
be made on the Treaty. I am not sure I can take it much further
than saying it would depend on the ruling of the court at the
end of the day, and certainly a court would be free, on this drafting,
to rule the way the judges felt they wanted to rule on a respectable
argument on which they could go either way.
Q177 Mr Cash: What Professor Dashwood
has said and what we have been discussing in relation to the ambiguities
and the possibility that the courts could get involved in this,
which I think is understood between both our witnesses as a real
possibility, really reinforces my determination, if I can put
it that way, to have a Sovereignty of Parliament Bill enacted
so as to remove doubt and indeed as part of the process, which
I assume to take place with the Government majority, of the implementation
of this Treaty through an Act of Parliament, so we have no doubt
as far as the British Parliament is concerned it will preserve
its right and prerogative for our foreign policy to be made in
accordance with our national interests. You are arguing, Martin
Howe, that under the Constitutional Treaty "foreign policy
would become fully supranational"—I happen to agree—and
that the Member States would be deprived of "most of their
present treaty-making powers". For the sake of the Committee
and the evidence we have to seek to elucidate, what are your reasons
for coming to this conclusion, given that unanimity has been retained
for virtually all measures to be adopted under the CFSP, and bearing
in mind that the ECJ's jurisdiction, subject to what we have just
been discussing, has on the face of it in certain cases been excluded
from most or all areas of foreign policy?
Mr Howe: My reasons for saying
that are, first of all, the question of supranational versus intergovernmental
is not the same as the question of unanimity or non-unanimity.
You can have unanimity within fields, indeed fields of exclusive
Community competence, but it still does not prevent those from
being supranational. The exclusion of the jurisdiction of the
European Court over the foreign policy field, I agree, is a feature
which makes it, if you like, less supranational than other fields
of the Treaty, but there are important respects in which under
this Constitution its supranational character is inherent. Most
importantly, I think, we have the figure of the Minister of Foreign
Affairs and the European External Action Service—the Minister
of course being linked in through his dual membership of the Commission—so
you have a supranational diplomatic service in effect, you have
a supranational figure, the Minister, presiding over meetings
of the Council of Ministers on foreign policy. Although it is
the case that, if you like because of the expansion of the Common
Policy over the field of foreign policy, major decisions of principle
are taken by unanimity, there is nonetheless a one way effect
under which the field is progressively covered by common policies
which are successively adopted. The other reason why I felt our
independent treaty-making powers would be substantially reduced
is the linkage to internal competence. Under Article I-13(2),
"the Union shall also have exclusive competence for the conclusion
of an international agreement when its conclusion is provided
for in a legislative act of the Union or is necessary to enable
the Union to exercise its internal competence or insofar as its
conclusion may affect common rules or alter their scope."
Although under the current case law of the European Court of Justice
there is an implied doctrine of external competence of the Union
which is linked to its internal powers, this clause, by making
it an exclusive competence, and framing it very, very broadly
so that this country as an individual country would not be entitled
to conclude treaties which may affect common rules or alter their
scope, would in my view deprive us, combined with the effect of
the Common Foreign Policy which in principle covers all foreign
affairs, of the great majority of our traditional treaty-making
powers.
Mr Cash: Big stuff.
Q178 Mr Connarty: It is a view.
Mr Howe: It is my view.
Q179 Mr Connarty: When we asked the question
on the change to the energy clause and whether it was to protect
our ability to enter into treaties with other countries, we were
told at the Despatch Box that is what we have done. You are saying
you do not think that is correct, and I am sure Ministers will
read that.
Mr Howe: I am sorry, I would need
to look at the energy clause.
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