Examination of Witnesses (Questions 180-187)
PROFESSOR ALAN
DASHWOOD CBE AND
MR MARTIN
HOWE QC
12 JANUARY 2005
Q180 Mr Connarty: It did not seem to
infer there would not be an ability to make treaties with other
countries on energy, and when we asked the Ministers on this they
said at the Despatch Box we had not lost these powers. I am saying
that I am sure they will look at your analysis and interpretation
and think about it.
Professor Dashwood: Could I add
a word on that? In my opinion, Article 13(2) gives expression
to the existing case law of the Court of Justice. There is one
element in the provision which I think is unsatisfactory and that
is the word "necessary"—"It is necessary
to enable the Union to exercise its internal competence."
That is a word which the Court of Justice has used itself but
has gone on to make clear it is thinking of a situation where
the exercise of internal competence and external competence are
inextricably linked, so it is a rather narrow sense of "necessary",
and that qualification does not come through the language of Article
13(2). Again, I would be surprised if that provision were interpreted
by the Court otherwise than in accordance with its existing case
law. Can I just add one point about what was being said a few
minutes ago in relation to Article 1-16(2), what the courts would
make of that provision. If we are talking about national courts
rather than the Court of Justice, they could only become involved
if paragraph (2) were regarded as having direct effect, and it
seems to me highly unlikely it would be so regarded because it
simply is too broad in its language to be justiciable. It is exactly
the kind of provision which in the past the Court of Justice has
regarded as not being one on which claims could be based before
national courts. So I am perfectly confident that the only court
which might conceivably be called on to interpret Article I-16
would be the Court of Justice itself.
Mr Steen: Will you forgive me
because I was not here at the start of the proceedings. I represent
a constituency in the South West, and I think if my constituents
had listened to this discussion if they were not fixedly pro-European
at the outset they would be totally mystified and anti-European
by the end, because of the somewhat Alice-in-Wonderland picture
this is for the lawyers. The ordinary person in the street wants
to know the answer to one question, which is this, if in a referendum,
assuming there will be a referendum, they choose to vote against
this Constitution, and Britain, or any other country, decided
they do not want anything more to do with the EU Constitution,
what would happen to that country? Would it have to abandon the
Treaty of Rome, abandon the EU and become an associate of the
EU? Or would the whole Constitution collapse? In my constituency
on the one hand I have an enthusiastic Lib Dem group who are passionate
about the Constitution and believe it is just a bit of mumbo-jumbo
and for the lawyers, and if they have listened to the first hour
of this discussion on the BBC would come to the conclusion it
is all wonderful and will have a great future for Britain. On
the other hand, I have the Leader of UKIP standing against me
at the general election who is going to say this is a sinister
plot, it is a dreadful occasion and the sooner we are out the
better. What will actually happen to Britain if it says no? What
will happen to Britain if it says no to the Constitution? What
will happen if two or three other countries say no, not such big
countries but smaller? These are the questions, having had the
preamble for the last hour and a half which they will have listened
to with interest, they want answered.
Mr Connarty: Particularly if only a few
countries vote against.
Q181 Mr Steen: Small countries, big countries,
what happens?
Mr Howe: I will avoid the political
aspects of the question.
Q182 Mr Steen: Party political.
Mr Howe: This is an issue I addressed
in my written evidence in some depth, and my own view is quite
clear, that legally and practically if one country says no, and
that country cannot be persuaded to re-vote and change its mind,
then the Constitution is dead.
Q183 Mr Steen: However small the country?
Mr Howe: However small the country,
legally and practically. The smaller the country the more pressure
can be brought to bear on them to make them re-vote in the right
way, of course. Although Mr Giscard has, before the signing of
the Treaty, made a number of statements to the effect, "If
people don't like it, we will just throw them out and go ahead
and bring in the Constitution amongst a core group of states",
I think that is legally and practically impossible for a number
of reasons. It would require an act of gross illegality, contrary
to the existing treaties, which require for their repeal the unanimous
consent of all states. That in turn would mean, since the existing
Treaties of Rome and Maastricht are embedded in the internal constitutional
orders of a number of Member States, them amending their own constitutions
to allow that to be done. It would cause severe problems regarding
the transfer of assets from the institutions of the old bodies
to the new bodies, because under the Constitution of course that
is achieved by provisions in Part IV with the consent of every
state which has an ownership interest in the existing institutions.
So I do not think that is on. This is advancing slightly beyond
legality into the realms of politics, but it would result then
presumably in a renegotiation, and one would then look at the
extent to which an inner group of states might bring in certain
provisions of the Constitution—either flexible co-operation
under the existing treaties or by separate parallel treaties,
or a settlement under which the dissenting state or states would
allow the core to go ahead with something similar to the Constitution
but with provisions which allowed them to have a slightly different
arrangement—and obviously the range of possibilities which
would arise in that context is very wide indeed.
Q184 Mr Connarty: Thank you. Professor?
Professor Dashwood: Once again,
I am afraid, I do not entirely agree, although I do to some extent.
It is obviously true that the existing treaties can only be amended
by common accord of all the Member States. If, say, the United
Kingdom and one or two small Member States were to vote no, there
would be tremendous pressure from the Member States which had
voted yes for the dissenting Member States to come back on board.
Experience suggests it might be possible to buy off—that
sounds unkind—the smaller Member States, in one way or another,
as has happened in the past with Denmark and Ireland. However,
and this is not a legal point, it seems to me to be inconceivable
that the referendum could be re-run in this country. We would
then be faced with the situation where, say, 22 or 23 Member States
had ratified the new Constitution, in some cases perhaps after
a very difficult campaign, and they would I think—and it
is impossible in answering this question to stay within the realm
of law—find it politically very difficult to go back to
their electorates and say, "Let's try again with something
else". There would be a negotiation, but it is a negotiation
which I think would be likely in practice to result in the United
Kingdom being made a fairly generous offer of some form of association
with the European Union. I think it is very unlikely, but I am
guessing here as much as Mr Howe is guessing, that negotiation
would be politically possible, politically acceptable, to the
other Member States. There would be a core of Member States pushing
very hard indeed for the adoption of the Constitution. We would
have some friends, but the Six plus Spain and Portugal plus Greece
and the great majority of the new Member States would be pressing
for the adoption of the Constitution.
Q185 Mr Connarty: It seems the difference
is that Martin is saying that if several Member States rejected
this, on the basis it has to be adopted unanimously, this Treaty
is dead, but you are saying, "No, this Treaty will live in
some form if two or three Member States, even including the UK,
voted against it".
Professor Dashwood: I think that
is likely.
Q186 Mr Connarty: I think as politicians
we can all then speculate on the arrangements which will be made
in the political sphere.
Professor Dashwood: There is one
other legal point. I think it would be extremely unwise for a
UK Government to rely on the fact that the existing Treaty cannot
be amended without its agreement and therefore refuse to negotiate
seriously about a way of accommodating the strong wish of a core
of Member States to implement the Constitutional Treaty. At the
extreme, if a UK Government was taking that line, it would be
legally possible for the existing Member States to denounce the
existing treaties—they could do this in international law—and
start again on the basis of the Constitutional Treaty. It would
not be easy but it would be easier to do than it would have been,
for example, if Denmark had failed to ratify the Maastricht Treaty
because we have ready-made a Constitutional Treaty which is designed
entirely to replace the existing ones.
Q187 Mr Cash: On the basis of my previous
question, if all the treaties have been revoked under this Constitution,
including the acquis communautaire, and then this new Constitution
creates a de novo situation in that sense, I think the
difficulties which both of you have described do become rather
acute, because you have the situation where you have a completely
new treaty on the one hand with all those characteristics, and
yet those who were left out—on your argument, Professor
Dashwood—would be left with the existing treaties but, question
mark, would they have been revoked as well in their application
to those who are left behind?
Professor Dashwood: I hope the
United Kingdom would behave sensibly in that situation.
Mr Cash: That is a very wise comment.
Mr Connarty: We will leave the
question of what is sensible to the politicians. There are a number
of politicians here with probably more views on what that should
be than there are numbers of members. Can I thank Martin Howe
and Professor Alan Dashwood for an excellent session and also
for their written contributions. It has been most helpful to the
Committee and will, I am sure, feature prominently in our final
report to the House.
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