Letter to the Chairman of the Committee
from the Secretary of State for Foreign and Commonwealth Affairs,
31 January 2005
During the evidence I gave to the Committee
on 6 December, I promised to write with a clarification on the
issue of "double hatting", and to provide a note on
the legality of unilateral repatriation of powers. The first point
was raised by Gisela Stuart, and the second by Sir John Stanley.
Before considering the question of the precise
drafting of the relevant provisions of the Constitutional Treaty,
I should say that it is the firm view of the government (a view
shared, we know, by eminent independent commentators) that "double
hatting" is as a matter of principle excluded by the EU's
Treaty arrangements. For the same person to hold the Presidency
of the Commission and the Presidency of the European Council at
the same time would destroy the integrity of the Union's institutional
framework. We are confident that that would be the conclusion
of the Court, if the issue ever reached it.
I am also confident that that is the correct
reading of the Treaty as it now stands.
The Dutch interpretation which was referred
to was, I believe, a 14 page letter of 31 March 2004 from Foreign
Minister Bot and Europe Minister Nicolai to the Netherlands Parliament
on the outcome of the March European Council. It seems that it
was then the view of the Dutch government that the draft text
of the Constitutional Treaty, as it stood in March 2004, left
open the possibility that the Commission President could also
act as the President of the European Council.
However the final text of the Constitutional
Treaty has been further strengthened since March 2004 to preclude
double hatting.
Firstly, Article I-26(6) defines the Commission
as consisting of "a number of members, including its President
and the Union Minister for Foreign Affairs". It is therefore
made explicit that the Commission President is a member of the
Commission.
Secondly, Article I-26(7) states that "In
carrying out its responsibilities, the Commission shall be completely
independent. Without prejudice to Article I-28(2), the members
of the Commission shall neither seek nor take instructions from
any government or other institution, body, office or entity".
This clearly includes the office of President of the European
Council and the institution of the European Council itself. This
Article therefore sets out that the President of the European
Council could not, if he were also the Commission President, take
instructions from the European Council, even though as President
of the European Council, he is tasked to do so under Article I-22(2).
In addition, Article III-347(2) states that
"members of the Commission, shall not, during their term
of office, engage in any other occupation, whether gainful or
not". This would of course include post of President of the
European Council.
In short: as drafted, the final text of the
Constitutional Treaty-the text signed in Rome in October last
year-makes clear that the Commission President may not also hold
the post of President of the European Council.
With regard to the legality of unilateral repatriation
of powers, the enclosed note sets out the legal position on this
issue.
However, as I said to the Committee in December,
the Government has no wish to contemplate such a situation. The
idea that a Member State, having negotiated and signed up to a
legally binding Treaty, could then pick and choose which parts
to implement, is absurd. Such action would do grave damage to
Britain and place us in breach of our EU Treaty obligations. The
Government believes that it is in the national interest to remain
a leading member of the European Union. Any attempt to unilaterally
repatriate powers would not only jeopardise the UK's position
as a leading Member State but also our membership itself.
Rt Hon Jack Straw MP
Secretary of State for Foreign and Commonwealth Affairs
31 January 2005
Annex 1
Note on the legality of unilateral repatriation
of powers
1. Parliament, because it is the sovereign
authority of this country, can pass legislation on anything it
wants. However, when considering whether an Act of Parliament
can legally override an EU Treaty, two questions need to be asked.
First, would the proposed Act be recognised as valid in UK law,
and second, would it be recognised as valid in EU law.
2. For an Act of Parliament to repatriate
powers or to contravene EU rules in any other way, it would have
to make very clear that this was Parliament's intention and would
have to amend the European Communities Act 1972 accordingly. If
all that were done, the Act would be part of UK law and would
be followed by the UK courts: it would be valid in UK law.
3. However, the UK's unilateral Act would
not, of itself, have altered the legal relations between the UK
and the other parties to the EU Treaties. It would therefore put
the UK in breach of its EU Treaty obligations. The Act could therefore
lead to challenges before the European Court of Justice brought
by the Commission, other Member States and perhaps individuals
or companies. It would not be recognised in EU law.
4. As Lord Denning made clear in the case
of Macarthys Ltd v Smith, it is within Parliament's power to legislate
contrary to the UK's EU Treaty obligations. The result of so doing,
however, would be to put the UK in breach of its Treaty obligations.
5. The Government would then have to face
the consequences of the legal challenges set out above as well
as having to respond to the uncertainty which would be created
for businesses and individuals. So as I said to the Committee,
the result would be the UK either having to renegotiate the relevant
parts of the Treaties-which would require the unanimous agreement
of all 24 other Member States at an Intergovernmental Conference-or
leave the EU.
6. Finally, it should be noted that if there
were nothing to prevent any Member State from legislating in breach
of its obligations under the EU Treaties, others could equally
do so-for instance banning British goods or denying free movement
to British citizens. If there were nothing to inhibit such behaviour,
every Member State could effectively pick and choose which treaty
obligations it wanted to obey and ignore the rest. The entire
system of community law would collapse, and with it the single
market.
| 
