Examination of Witnesses (Questions 229-239)
RT HON
JACK STRAW
MP AND MR
DAVID FROST
8 FEBRUARY 2005
Q229 Chairman: Foreign Secretary, welcome
again to the European Scrutiny Committee. Several of our witnesses
have suggested that ratification by national parliaments of the
principle of the primacy of EU law in Article I-6 of the Constitutional
Treaty may lead to greater deference on the part of national courts.
Can you give us any assurance that the existing principles by
which the UK courts recognise the legislative sovereignty of the
Westminster Parliament will not be altered by this provision?
Mr Straw: Yes, I can. I think
your Committee will be familiar with what Lord Denning, then Master
of the Rolls, said in McCarthy v Smith: "If the time
should come when our Parliament deliberately passes an Act with
the intention of repudiating the Treaty or any provision of it
or with the intention of acting inconsistently with it—it
says so in express terms—I should have thought it would
be the duty of our courts to follow the statute in our Parliament."
That much is clear. Other consequences would follow in those circumstances,
which arise from our signature on the Vienna Convention on the
Law of Treaty, Article 27, which says that you have to respect
the international obligations into which you have entered. There
would be a serious problem. In terms of primacy qua primacy,
I can give you that clear undertaking. We are clear that the statement
about primacy and the declaration are no more than a statement
of the status quo and it is not just the status quo
in respect of European Treaty obligations but effectively of any
treaty obligations, particularly those which are incorporated
into domestic law. It would be impossible to run an international
system and have treaties unless where people entered into treaties
they were binding on a number of signatories as long as they were
there. The British Parliament in any event has the final say because
it is up to the British Parliament as the sovereign authority
in this country to decide whether or not we should remain a member
or a signatory to a particular treaty.
Q230 Mr Cash: As you know, there is this
problem of competing assertions of jurisdiction by the European
Court on the one hand and, as you quite rightly point out, McCarthy's
case and indeed Metric Martyrs in which Lord Justice Law
said much the same thing. There is a problem, is there not, and
it came up in the evidence that we received from the expert witnesses
on the interpretation of European law, which is that the balance
of opinion was that, if there was a contest of competing jurisdictions
after the Constitution had gone through, because of Article I-6,
the advice we received was that the UK judges would have to decide
as to which way they would go if an Act of Parliament, for example,
like my Supremacy of Parliament Bill, notwithstanding the European
Communities Act 1972, was clear and unambiguous. Do you not agree
that it is most unsatisfactory for us to be in a position of uncertainty
in this arena of competing jurisdictions? Would you not agree
that this Bill that we are going to consider tomorrow should be
amended to ensure that if Parliament passes an Act of Parliament
clearly inconsistent with the European Communities Act or anything
flowing from it, including the Constitution itself, the UK courts
must give effect to that Act and, if not, why not?
Mr Straw: On what happens at the
committee or report stage, I am always open to looking at the
merits of particular amendments. That has been my consistent practice.
If there are amendments put down, including from you, we will
look at them. You always have to look at amendments in terms of
their detailed wording. In terms of what the Constitutional
Treaty does in this area, it is effectively a statement of the
status quo. There is this declaration in respect of Article
I-6: "The Conference notes that Article I-6 reflects existing
case law in the Court of Justice of the European Communities and
in the court of first instance."
Q231 Mr Cash: That is dreadful, is it
not, because they say under Costa that they take precedence.
Mr Straw: The issue of primacy
has been part of our obligations of membership since we joined.
If you look at the competing texts of the yes and no campaigns
back in 1975, you will see that there was exactly the same argument.
It went before the British people and it has not changed. If we
joined the European Union in respect of those obligations to which
we voluntarily have signed up, which give the EU competence, we
have to accept those obligations as interpreted by the European
Court of Justice. On this issue of competing competences, the
European Court of Justice—
Q232 Mr Cash: Competing jurisdictions.
Mr Straw: And jurisdictions. It
is the same thing. The European Court of Justice itself has been
very careful not to engage in a gratuitous argument with national
jurisdictions. I could cite the Annibaldi case and the
Karlsson case. They are alive to the fact that they have
a very specific, limited job. On the issue of Kompetenz-kompetenz
which runs round some Members of the Committee sometimes rather
like a hare, I had a very lengthy discussion with a former, very
senior member of the German Constitutional Court in Karlsruhe
about this issue. Happily, he spoke perfect English so we had
a very good discussion over dinner one night about this. He was
explaining the issue but I came away from it thinking that, even
for them, they do not see it as a practical problem in terms of
their relationship with the European Union. I know of your anxieties,
Mr Cash. I know where you are coming from. You do not like the
European Union; you do not like the fact that currently there
is law as explained by the ECJ about primacy in respect of treaty
obligations and those which flow from it. To reassure you—
Q233 Mr Cash: Very difficult, I would
say.
Mr Straw: This Constitutional
Treaty does not make any difference and the issue of primacy arises
fundamentally from Article 27 of the Vienna Convention on the
Law of Treaties.
Q234 Mr Cash: We can break our treaties
by statute. Lord Diplock made that abundantly clear in a House
of Lords case.
Mr Straw: The British Parliament
as I was taught at school—this has not changed—can
do anything it wants, but there are consequences in the real world.
Q235 Mr Cash: Fortunately.
Mr Straw: Politics and government
are about responsibility. If we pass a law which is plainly and
expressly inconsistent with treaty obligations, we will then be
in breach of those treaty obligations. The consequences are likely
to be political and financial, more than legal, but they may also
be legal in other jurisdictions in which we voluntarily have accepted
the authority. Do not worry on this one.
Q236 Angus Robertson: Can I move on to
the Charter of Fundamental Rights? Article II-111 states that
the Charter will apply to Member States only when they are implementing
Union law, whilst the explanation to this Article uses the wider
expression, to "act in the scope of Union law" and a
number of our experts, eminent professors, have said that they
believe the European Court of Justice will take the view that
this wider formulation will prevail. In view of the difference,
how firmly based is the government's view that incorporation of
the Charter will not result in the extension of EU competence?
Mr Straw: We are as firm as we
can be. You may have seen the Attorney General's speech that he
made on 25 June where he described the Charter of Rights as a
brake, not an accelerator. Peter Goldsmith took intense interest,
as did I, in ensuring that we had nailed down safeguards in respect
of the potential scope of the Charter before we agreed to it being
included within the text of the Constitutional Treaty. We do not
think the phrases are different in practice. We also believe that
the ECJ will look at each case on its merits. Again, I quote from
the Annibaldi and the Karlsson cases. In the Annibaldi
case which is cited, by the way, in explanations to Article II-111
the European Court of Justice refused to give a ruling on fundamental
rights points because the matter fell outside EU law and they
said it was for Member States. I do not think there will be a
problem. This is a statement of existing rights and it quite emphatically,
as Article II-111 makes clear, does not extend the field of EU
law beyond the powers of EU law or establish any new power or
task for the EU or modify powers and tasks defined in the Constitution.
Lord Goldsmith also said that he was unaware of any other human
rights statement where the legislator has offered so full and
careful elaboration of its meaning. We went to very considerable
lengths. One of the last things that I agreed before we gave our
assent to the whole document was to beef up the acknowledgement
in the text of the status of the explanations, because we wanted
to make it clear.
Q237 Angus Robertson: If this is the
case, if so much work has gone in to make sure that there is not
ambiguity, why is the wording not exactly the same and why do
so many eminent academics feel that there is this gap?
Mr Straw: I cannot answer the
latter question except to say that academic life would not be
academic life unless there were differing opinions and long may
that continue. Our judgment is that it does not make any difference
between implementing Union law and being within the scope of Union
law. Because the words are different you could argue that the
meaning is different. Sometimes you get different words used and
their meaning comes down to the same thing. I think that would
be the case here.
Q238 Mr David: I want to talk about the
implementations in the extremely unlikely scenario that the United
Kingdom should vote no and other Member States have already voted
yes. Do you think that we would be in a situation whereby Member
States would try and put some kind of political pressure on the
United Kingdom to have some kind of associate status to the European
Union or would you stick by what you said originally in your letter
of 20 October, that the Treaty would simply be terminated and
that would be the end of the matter?
Mr Straw: For the Treaty to come
into force there need to be 25 positive ratifications. If there
were not, it would not come into force. Such things happen in
respect of other treaties. It always takes a long time. We saw
that recently in respect of Kyoto which took some years before
it had sufficient numbers to ratify it, although in that case
it did not require unanimity of all the signatories; or, for example,
in respect of the Nice Treaty where Ireland failed to ratify.
Secondly, the European Council will meet and decide what to do.
The only certain thing is that we would be in an era of quite
profound uncertainty for the British government's relationship
with the European Union if we were in a situation where 24 had
said yes and we had said no. I cannot predict what the reaction
would be, except we would be in a weaker position than we are
now. This is a Treaty which is very much in Britain's interests.
If you go round Europe to see what people said at the time the
Treaty was agreed, they said it was a victory for Britain. That
was said repeatedly in one country after another, or words to
that effect. I set out in September 2003 what were our key concerns
and key demands before we would sign up to it and it was a very
public negotiating position which had its own risks, but it nailed
us to the floor and we have delivered on all of those. We have
changes to make the EU better managed and I have yet to see a
single argument explaining in rational terms why there is objection
to slimming down the size of the Commission, to having a voting
system which reduces the disproportionate weight of the small
countries and makes the weight of votes proportionate to people's
population which, by definition, helps a country like the United
Kingdom. Having a full time president of the European Council
to act on behalf of Member States and particularly having a really
effective mechanism for involving national parliaments and the
British Parliament—how is that against our national interest?
It cannot be and yet these are some of the things to which some
people in this place object. You can have an argument about the
extension of QMV. Although the substantive extension of QMV is
very limited, overall we got a good deal because of the strength
of our negotiating position. We had the British Parliament behind
us and we had been very open in the way we had obtained public
backing for our position; and also, because we had a veto at that
stage. To try and renegotiate the treaties with the reverse position
would be very difficult. It would be a very risky enterprise.
I cannot see it as in Britain's interests, given the fact that
more and more the EU is working for Britains's interests and becoming
as we would wish it.
Q239 Mr Steen: Welcome back to the Committee.
Until recently we did not see Foreign Secretaries but it is very
nice that we see so much of you now and thank you for your answers.
We have had a lot of evidence from academics and you rightly said
that they all have different views. I would like to test you on
one or two of the views put forward. The first view put forward
by a group of MEPs was that if Britain said no in the referendum
it would be a period of great uncertainty, although they thought
it likely that the other 24 countries would go ahead and we would
just be on the sidelines. A much stronger view expressed by some
of the professors and others was that if France, probably Poland
and Spain said no in the referendum that would kill the whole
Constitution dead; but if we said no, as we are already very much
on the outside of the EU, which is somewhat different from what
you were saying, what we said was gloriously unimportant. The
rest of the EU would go on and we would be struggling behind in
the coach at the back of the train, trying to stop the train but
it would keep going. I wonder what you feel about the French saying
no. Would that kill it dead?
Mr Straw: I am not talking about
any other particular country saying no. The legal position is
the same whichever country says no. It must be. We are all pari
passu as Member States around the table. The political consequences
would be broadly the same. There would be a serious problem, not
to say a crisis, inside the European Union. People know what they
are going to get with this document. That is a matter of debate.
It will be further debated tomorrow, no doubt, when it goes on
the floor of the House and at committee and report stages and
then very publicly. I am confident both about making the public
argument and about winning the public argument. In the end, I
have one vote of 30 million so it is for the British people to
decide. We have produced a greater certainty for the British people.
If we make a decision where we are the only ones who are rejecting
it, we are making a decision for isolation and where we would
be negotiating from weakness, not from strength. It is risky and
uncertain. It is not in Britain's interests.
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