Examination of Witnesses (Questions 200-219)
MR JO
LEINEN, MR
RICHARD CORBETT,
MR ANDREW
DUFF, MR
ALEXANDER STUBB
AND MR
GYÖRGY SCHÖPFLIN
25 JANUARY 2005
Q200 Mr Cash: I think they have written
it quite well.
Mr Duff: No.
Q201 Mr Cash: Not you, I am saying "they".
Mr Duff: In drafting, we were
inspired by the necessity to be able to confront Mr Cash at a
meeting of the Scrutiny Committee.
Q202 Mr Connarty: All of that effort,
Mr Cash, was not for nothing! Can I come back to the point made
by Sandra Osborne. We had evidence last week and, some quite conflicting
evidence and opinion from Professor Dashwood and Martin Howe QC,
about what was really meant by Article I-6 about Union law which
says "The Constitution and law adopted by an institution
of the Union in exercising competences conferred on it shall have
primacy over the law of the Member States". It does seem
in the question asked by Sandra Osborne is it really satisfactory
for citizens to be asked to make a decision on a treaty when the
impact of the important parts of the treaty is unclear, In the
evidence we were given, I think they agreed the courts would decide
how to interpret what was given primacy, whether it was a legislation
of the nations or whether it was the legislation of the European
Union, That is where there is still some serious doubt. They seem
to come to the conclusion that when the courts make that decision
then you will know. Does your Committee think it is right to make
that decision, when there is so much uncertainty, when we will
not know what the courts will decide until they decide it and
whether they will make decisions, in fact, on economic and other
matters? At this moment, your Committee says it is safe from the
interference of the EU.
Mr Leinen: From the very beginning
of the European construction—the Common Market and the Treaty
of Rome—it was the principle that in so far as competence
has been transferred to the Union, legislation in that field has
primacy over national law. That is a characteristic of the Community
method expressed from the very first treaty till today, so it
is nothing new. It is now written because you have a basic treaty
and you write it down but the principle was applied from the beginning.
The courts come in on cases of conflict where you need interpretation
and hopefully it is not too often that you need interpretation
because things are clear when they are ruled. You have this complexity
of life, that there are cases where you refer to a court, a third
power to interpret, and, of course, the European Court of Justice
is part of the system and their judgments are accepted so far
by all the members. I do not know any case where members have
not accepted what the Court of Justice has stated. I do not know
whether this treaty makes things unclear, the effort was to make
it clearer. You have in the new competence order quite clearly
what is the exclusive competence of the Union and you will discover
it is not very much, it is tariffs, trade, monetary union, fishery,
marine and biological. Then you have the big bag of shared competences
where the Union mostly makes framework goals and the Member States
or others are filling it by their own legislation. I think in
a multi-layer system, as we have it, of course, you have this
bag of shared competences where you always struggle—is it
too much, is it not enough—both sides have to look on it
and I think the Constitution is improving this situation dramatically.
The principle of subsidiarity was strengthened, the national parliaments
get a say in the whole process. This early warning system is a
weapon, I would say, where the national parliaments come in EU
legislation and the competence order makes it clearer than it
was before. I think we have improved the situation and not worsened
it.
Mr Cash: Chairman, on a point there,
I think you introduced this subject and the primacy issue particularly,
and I would not want to trespass on your having opened that up
without it being followed through.
Mr Connarty: I thought you had missed
it. Please, Mr Cash, if you have a point.
Mr Cash: I will try to summarise the
position. We have taken evidence from some very eminent European
lawyers including Alan Dashwood last week, who I am sure you know.
On the question of primacy, with great respect, Mr Leinen—and
this is not a criticism—it is a very complex and rather
opaque question. Under the Costa case in 1964 the European
Court declared that they had superior jurisdiction over laws and
over constitutions. Now that has been disputed by a number of
Member States. We have a special problem here in this country,
and I would say it was a special advantage which I am addressing
amendments to the Constitutional Reform Bill next week, because
if we pass an enactment—and, for example, to give it a practical
tinge, it could be on this question of right to strike—if,
for example, despite what you said we were to end up with a change
in our law, let us put it no higher than that, whichever way it
goes, it would be open, under our Constitution, for Parliament
on behalf of the voters in a general election to pass a subsequent
enactment after the European Communities Act, ie next week, I
would say, also, after the European Constitution but that is a
separate issue. If we were to legislate inconsistently and clearly
against what the law prescribed by Europe stated at that time,
then our later enactment would be something which our courts would
have to give effect to. I will leave it at that. There is a serious
problem about the constitutional relationship and jurisprudence
understood in Europe and understood here in the United Kingdom,
although I fear we are being taken further down a route which
I would not like, but I will not enlarge on that.
Q203 Mr Connarty: I think there is a
question there, and it is in fact are Mr Cash's fears justified?
Mr Corbett: I have got the transcript
of what Professor Dashwood said and I think he might not have
put it quite the same way as you did.
Mr Cash: He did, he agreed with me.
Q204 Mr Connarty: I think Martin Howe
might have had a different view. I said in my comments that they
did disagree about the question.
Mr Duff: Just on the primacy issue,
the Simmenthal case of 1978 expressly addresses the issue
of constitutional primacy. Mr Cash is perfectly correct to say
this has not always been accepted without demur by constitutional
courts in all Member States, but despite their anxieties and reserves,
they have always performed loyally to sustain the integrity of
the acquis and the strength and force of the corpus of EU law.
I would include in that the British courts, in the 30 years or
whatever it is we have been in the EU there has not been a single
case where the issue of primacy of EU law is contested in an English
court or I think a Scottish court.
Q205 Mr Cash: We have not had a notwithstanding
enactment yet.
Mr Duff: No, that is right and,
also, you have not had the principle of the primacy codified as
it will be in this Constitution.
Q206 Mr Cash: That is exactly the point.
Mr Duff: I am not seeking to say
that this is not a significant step forward.
Q207 Mr Connarty: Mr Corbett, do you
want to comment?
Mr Corbett: On the issue of primacy
of European law, which is so fundamental to the whole system,
may I ask what would be the point of jointly agreeing common laws
in a particular field, like the environment across Europe, if
everyone is then free to ignore them?. That is the whole point
of having common legislation, that we are all bound by the same
set of rules that we enacted with our neighbours through the European
Union.
Mr Leinen: Exactly. The Union
is under the rule of law that is applying then to all the members.
I will still stick to my statement that the Constitution is not
adding something new, it is codifying something that has been
accepted for years.
Mr Cash: With great respect, Mr Leinen,
it is not.
Mr Connarty: I think Mr Leinen had not
finished speaking.
Q208 Mr Cash: I beg his pardon, and yours.
Mr Leinen: I have to repeat what
Andrew Duff and Richard Corbett have been explaining. Since Britain
has been a member, in no case has it refused to accept a judgment
of the European Court of Justice. The rule is accepted as a characteristic
of this Union. It would be really new if a Member State was to
start to argue about this basic principle: if you have a common
law made by the Council of Ministers, sometimes on unanimity agreeing
to it and then they go home and say: "We are not applying
it" then, of course, you have another European Union, it
would no longer be the same one. This Article is just qualifying
what has been done since the beginning.
Mr Stubb: Can I make two quick
points. The first point is on implementation, I am happy to say
that the United Kingdom is always number one or number two in
implementing legislation.
Mr Duff: It is not actually.
Mr Stubb: It is very close, one,
two or three. The second point is when it comes to interpreting
the primacy of law, of course, we must remember that it is a little
bit to interpret unless no law has been legislated in a particular
area. Of course, we must remember that not all areas are covered
by the European Union, their natural primacy of national law stands.
Q209 Mr Cash: I thought Mr Duff very
fairly described the issue as it will be presented to the United
Kingdom Parliament and what he said speaks for itself. But as
regards Mr Leinen's comment there is a change, with great respect,
because under clause 4 of the final provisions, the transitional
arrangements at the end of the treaty, what it says in effect
is that all the treaties and the entire acquis are repealed and
revoked and then are substituted by a successor, which is the
European Union, which contains this provision, which my colleague
referred to, which is Article I-6, which gives primacy and the
right of the European Court to interpret. So combining all that
together, as I put it to the Prime Minister the other day, you
get a fundamental change. That is really all I am saying.
Mr Duff: No, not a fundamental
change.
Q210 Mr Cash: You say that, I say it
is.
Mr Schöpflin: If I might
add a brief point, and also thank the Committee for hearing me
out. It seems to me that what we have been discussing is a narrowly
focused problem. It may arise but the possibility of it arising
is not very high. It seems to me the great bulk of the Constitution
is not all that contentious. The Constitution as a symbolic entity
maybe contentious but the actual provisions will mostly be self-operating,
I suppose self-enforcing. There will always, however, be complex
cases and I think it is this we are talking about; I do not think
there are going to be that many. In a sense I have a feeling that
the discussion we have been having is speculative. It is very
interesting, but I am not sure it will happen that way. We know
that no legal system in the world can make provision for every
contingency, it is just impossible and I think there has to be
some space given to interpretation by any judiciary that we are
looking at, I think that is the case here.
Mr Cash: One last point, Chairman, if
we have a "no" vote in the referendum which rejects
the Constitution and then there is the obligation, as there will
be, on that government to legislate, you are going to be faced
with a interesting example of what I have been saying.
Mr Connarty: I think that is more a comment
than a question. Mr Steen, I believe you have a question.
Mr Steen: Absolutely. This is something
I have been majoring on, really on behalf of myself and my party,
and it is rather like an Agatha Christie, which you may be familiar
with, we do not know where the culprit is and we do not know whether
there is a culprit. This is the question: what do you think the
consequences would be if the United Kingdom, and only the United
Kingdom, refused to ratify the Constitutional Treaty by way of
a referendum? By way of a background, I want to explain from a
strictly legal point of view the consequences of the UK not ratifying
the treaty seem to be clear, and that is that all Member States
have to ratify the new treaty and if one Member States does not
ratify the new treaty, then the existing treaties remain in force.
That seems to be what the position is. However, we have had a
considerable number of different views from witnesses as to what
might happen. Professor Hartley takes one view, he suggests that
if the Constitutional Treaty was rejected by the United Kingdom
or another Member State everything will be open for negotiation,
whereas Professor Dashwood by contrast writes—and I quote—"If
only one or two Member States failed to ratify . . . there would
be very strong pressure from the governments of the other 23 Member
States to go forward with the new Constitution. It is possible
that a compromise formula might be found (as was done with respect
to Denmark in order to secure the eventual ratification of the
Maastricht Treaty by that country), but this could not entail
altering the text of the Treaty itself since it is inconceivable
that the other Member States would be willing to re-run the process
of ratification. In all likelihood . . ." and this the punchline
". . . the only practical option for the Member States unable
to ratify the Constitution would be to withdraw from the Union
and negotiate some kind of associate status". Bearing in
mind we have a referendum here for the public by October 2006,
and the Conservative Party is committed to campaign for a "no"
vote, as does the UKIP party, and one or two others, although
the Liberal Democrats and the Labour Party are going to campaign
for a "yes" vote, the answers to these questions are
terribly important for the public.
Q211 Mr Connarty: I think this will go
down in history alongside the West Lothian question as the Totnes
question, Mr Steen's constituency, but it is one that I think
is very fundamental.
Mr Stubb: I guess my first reaction,
I thought you would never ask! I have a three-part answer. The
first one is that I think politically this is not about a referendum
for the UK on whether you are going to accept the Constitution
or not, it is about whether you are going to be Members of the
European Union or not. I think that is really the fundamental
question. I do not think a "no" of one, two or three
Member States will stop this Constitution entering into force.
I believe firmly that there has been too much political energy,
and frankly this Treaty is too good to be rejected, and going
back only to Nice. The second point is, of course, if you want
the United Kingdom to exit the European Union you might have to
approve this treaty and pass it on and use at least former Article
49—I do not remember which article it is now—which
allows a Member State to exit the European Union. The third point
I want to make is this is not a treaty like the Maastricht Treaty
or like the Nice or Amsterdam Treaty where you can opt out from
something, because essentially that was what Denmark did, it opted
out of the euro, it opted out of a common defence, and it opted
out of Schengen, this is not really that, so you cannot opt out
of the institutional structure which we have established. The
UK cannot go along with a different system of number of commissioners,
number of European parliamentarians or weighting on votes. The
final point I want to make, and looking at the British debate
and speaking perhaps as a Nordic, I think it would be extremely
unfortunate, both for the United Kingdom and, indeed, for the
European Union, if the UK voted against this new treaty and at
the same time had to leave the European Union. I think that would
change the course of history and in that sense I do think this
is one of the most fundamental votes the UK has ever had.
Mr Schöpflin: I would like
to associate myself very much with what my colleague, Alexander
Stubb, has just said. Perhaps I should add that I come from one
of the two countries that has already ratified. Hungary ratified
the Constitution before Christmas, Lithuania was the other one;
I think Slovenia is the next. We do not have a problem with it.
I really do see this as a historic turning point for the United
Kingdom. I should add I lived here for many years, I am halfway
to being an insider. The decisions taken in the next 18 months
to two years I think will be irreversible and will affect the
future of the United Kingdom profoundly. Integration will not
stop if the Constitution is vetoed, I think it will in any case
accelerate because there are a number of British features built
into the Constitution that the existing Member States do not want
necessarily. What I have always found difficult to communicate
is that most of the existing states of the European Union want
to merge their sovereignty, they want to press ahead with this
process, quite unlike the United Kingdom, I fully accept majority
opinion in the UK staying out, which is not inconceivable but
I think we should compromise. It will be a loss of authority and
influence in Europe, I think it will mean that Britain will become
a smaller state in Europe. Part of the authority of the global
reach that the United Kingdom has at the moment, the seat at the
top table, punching above your weight, all of these phrases with
which you are very familiar, derive from membership of the European
Union. Secondly, I think there would be a loss of status as the
United States' best friend in Europe because part of that relationship
is about what the United Kingdom is capable of achieving in Brussels
which has been quite considerable. One should confront the possibility,
also, that the United Kingdom will, by opting out, lose its attractiveness
as a focal point of inward investment. I think it will have economic
consequences, I am not an economist, but I read enough of the
papers to be able to say this with confidence. I would add, perhaps
as a footnote, I think highly ironically "opting out of Brussels"
will not mean the end of EU regulations. Look at what has happened
to Norway, it sits in the antechamber, half way out, barely in
and has to take on board practically everything in the acquis
which the existing Member States do without much of a voice. The
United Kingdom's relationship in practically every field which
is already governed by Union regulation means that EU standards
will still prevail. Then there is a problem which I think has
made Brussels highly unpopular, certainly at the level of popular
discussion, it is the over-regulation. But, I would add that the
over-regulation from which this country suffers and suffers acutely,
I would say, is the work of Whitehall, not of Brussels. I am talking
about "gold plating" and I think that is a UK problem.
The United Kingdom has created its own acquis communitaire, which
no other country has, it is a unique problem.
Mr Leinen: If I just tell you
what the Treaty is saying on your question. The Treaty is saying
in Article 443 "If, two years after the signature of the
Treaty amending this Treaty, four fifths of the Member States
have ratified it and one or more Member States have encountered
difficulties in proceeding with ratification, the matter shall
be referred to the European Council". What is this article
telling us? If it would be automatically the case that one country
says "no" and the thing is dead, we did not need that
provision in the treaty. It is not the end if one country says
"no", it is referred to European Council dealing with
the crisis and looking for a solution. We had that already, it
is nothing new. I can hardly imagine if 23 or 24 countries have
ratified, it is politically unreal that one country could ask
to start again from the beginning, the negotiation of the treaty
or could even block it. There will then be opt outs or a second
chance.
Q212 Mr Connarty: Can I ask specifically,
you referred to Article IV-443, paragraph 4. If this treaty is
not ratified, how can that power be imposed? You are asking to
implement something in the treaty and if it is not ratified it
cannot be implemented.
Mr Duff: You are absolutely correct.
A crisis meeting of the European Council is seldom an answer to
anything very much. If I can just return briefly to your question,
it depends on the circumstances of a Member State, the size of
the Member State and the size of the majority. One can see circumstances
in which a certain Member State might be asked to think again
as we did with the Irish and the Danish. If France, however, were
to decide to reject—
Mr Corbett: —and they themselves
wanted to.
Mr Duff: Yes, and they themselves
wanted to. If France decided to reject the vote, that would be
the end of the Constitution.
Q213 Mr Cash: Why?
Mr Duff: Because France is an
important and central player in the scheme of things. Unfortunately,
Britain has become so marginalised that if Britain were to reject,
the Conservative Party would not find partners in the 24 that
were willing to renegotiate. The 24 feel that they have made sufficient
concessions already to the UK in the Convention and the IGC so
the only thing that could happen would be an IGC to change Article
48 of the existing Treaty which says that all Member States have
to agree on any treaty reform and all Member States have to ratify
to say that the thing could be brought into force before it had
been ratified by all Member States. It would pose, then, of course,
a great political problem for us again in this country, we would
have to decide, probably through a further referendum, but the
choice would be starker and I think the decision would be more
sensible.
Q214 Mr Connarty: Does Mr Stubb want
to come back with a comment?
Mr Stubb: Briefly. Andrew is always
so diplomatic.
Mr Duff: Am I?
Mr Stubb: Yes. On this one you
are. I think there are three options. One; the UK votes against
and then it has to reconsider its membership of the European Union.
Two, France or Poland vote against, then we are going to have
to re-negotiate the treaty. Three, one of the smaller Member States
votes against and we make them vote again.
Mr Schöpflin: This is purely
speculative.
Mr Cash: Could I say—it
is too big a subject to go into in a short session—the crucial
issue which lies at the heart of British objections—
Mr Connarty: Mr Cash, if you could put
that as a question. You are always telling us.
Mr Cash: Chairman, I cannot ask
them to comment on what the position of the British people is
because they are themselves coming from different countries.
Mr Connarty: We are taking evidence on
the European Parliament's Constitutional Affairs Committee view
on the Constitution.
Q215 Mr Cash: I am saying, if I may,
the crucial question is one of democracy and accountability. I
think that is where a lot of these problems turn into other questions
such as low growth, high unemployment, over-regulation, fraud,
et cetera. The issue which I would ask you to consider is—those
of us who take this particular view and it happens to be in the
Conservative Party but there are others throughout the country,
by a large percentage on recent opinion polls—our concern
at the end of the day is this business of democracy which is so
fundamental. All the arguments I have heard from you, if I may
say, pale into insignificance compared with the question of if
voters decide in a general election that they have decided they
want to be governed by certain laws, and they happen to be inconsistent
with the European acquis and happen to be inconsistent with the
treaties, do you not agree that they should have the right to
be able to say that and not to be accused of wanting to be somehow
or other anti-European?
Mr Leinen: May I come in again.
The first item is pure speculation. I would say whether a big
country or a small country is saying "no", it is the
same situation, one country has not ratified and the European
Council has to deal with the question. I would not qualify Malta
against Poland, or France against Britain. It is a problem, a
crisis, and we have to find solutions to come out of that crisis.
In my opinion it is very unlikely that the big job which has been
done over the years, with the Convention and the IGC to negotiate
this treaty, that you could restart the negotiation of a new treaty,
for me that is the most unlikely thing that is happening. You
will find some solution to deal with the country. What Mr Cash
is arguing for, and we have that in the Parliament from all the
Euro-sceptics, is whether you have democracy only on a national
level or whether you have the same quality of democracy in the
Union. The elections to the European Parliament by theory of democracy
have the same legitimacy as the elections to a national parliament.
We are elected in a direct way from all people in the countries.
Westminster is elected to the national level. In Germany I would
say we have 16 regional parliaments, they are elected as legislators
to their regional level. In Germany a Bavarian has never ratified
the German Constitution. This is something I mention in the Parliament,
in this world there is nothing that is not existing. Bavaria has
never ratified the German Constitution, in 1948, but it is nevertheless
part of Germany. A French colleague was saying Quebec has never
ratified the Canadian Constitution as part of Canada.
Q216 Mr Connarty: We understand the point.
Mr Leinen: Sorry, I was getting
carried away. My point is you deny that democracy could exist
with the same quality on a Union level that you have chosen to
be part of and that democracy could only exist on the national
level that you are used to working. That is something, of course,
one accepts or not accepts and this argument is coming from all
Euro-sceptics who have the national dimension as the only dimension
of democracy, but in the world of the 21st century where things
are moving forward, the world gets so small.
Q217 Mr Steen: Maybe you are going backwards.
Mr Leinen: I think the European
Union is the first model. You could see that the African Union
being created a year and a half ago is a copy of what we are doing
and in Latin America and Asia they will try to do the same, 10
or 20 years later. I think we have to get used in the modern world
and the world of tomorrow sharing sovereignty, nobody is losing
it but you are exercising it in a shared way. This principle,
okay, you have to accept it, if it is not accepted, you have a
problem that is true.
Q218 Sandra Osborne: I accept it is possible
for democracy to exist at a European level and, indeed, it does
through the MEPs, and I totally accept that. The concern about
democracy and accountability is not only the preserve of the Conservative
Party, some of us in general terms do have concerns about that
when it comes to the European Union, even some of us who regard
ourselves as pro-Europe. The fact is in Britain there is a problem
of public perception about democracy and about accountability
to Europe. There is a distance, physical as well as psychological,
about that democracy and accountability, which is one of the reasons
I think a referendum has been put forward. I will be interested
to hear if it is a general view that a referendum is not a good
idea. That is one of the ways we feel the British people can feel
they have had their say. We must make the argument and turn that
round, raise consciousness about what Europe does. I understood
that one of the motivations behind the new Constitution was to
try to bring democracy closer to the people. How do you think
that could be done given—and I do not say the UK is typical
but it is certainly the case and I think we can all admit it—the
turnouts at European elections, given the general cynicism among
the public about Europe, how is that going to be achieved within
the Treaty?
Mr Schöpflin: Perhaps I might
say something and also try to answer Mr Cash's question. It seems
to me that the general idea of bringing politics closer to the
citizens is one I am sure we are all agreed on. This is problematic
throughout the democratic world. It is not easy, as society and
the world becomes more complex, and I think as people are becoming
less civically committed, the problem is in a way increasing exponentially.
I would say that even what we are doing today has the potential,
a little bit, to bring the whole problem closer to the citizens,
the more discussion there is, the better it is. What worries me
about the United Kingdom is the quality of the debate is not all
that good. The quality of the academic debate and, in fact, the
political debate is sophisticated but at the popular level it
is appalling. It is highly prejudiced, indeed the way in which,
let us say, France and Germany are described -fortunately Hungary
never gets mentioned—in the British press would be racist
in other contexts. I think it is appalling, it creates ways of
seeing the world I find deeply distasteful. In answer to Mr Cash's
question I think if a particular part of an entity consistently,
over a period of time, wishes to say "no" then the democratic
answer is that particular entity should be allowed to leave. After
all this was the Velvet divorce in Czechoslovakia. I really turn
the question back to you: would you accept that for Scotland and
Wales?
Q219 Angus Robertson: Yes.
Mr Schöpflin: If Scotland
and Wales consistently chose to opt out of the United Kingdom
you would say "yes" on the principle of consistency.
Mr Connarty: Mr Cash?
Mr Cash: I do not think the Chairman
is expecting me to engage in a dialogue on the basis of rhetorical
questions.
Mr Connarty: I am hearing a voice
from Mr Robertson saying "yes".
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