Government response
General
1. The Government are grateful to the Committee for
this Report. We welcome the Committee's broadly positive analysis
of the Constitutional Treaty.
2. As the Committee will fully appreciate, the circumstances
surrounding the Constitutional Treaty have significantly changed
since the publication of the Committee's Report. The referendums
in France and the Netherlands have resulted in majority votes
against ratification of the Constitutional Treaty. Austria, Cyprus,
Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg,
Malta, Slovakia, Slovenia and Spain have already approved the
Treaty, but for it to come into force, all Member States must
ratify it. In the UK, the Government has made it clear that ratification
will involve approval first by Parliament through the EU Bill,
followed by a nationwide referendum. However, the Foreign Secretary
announced on 6 June that until the consequences of the French
and Dutch votes were clarified, the Government did not intend
to proceed with the EU Bill's parliamentary process.
3. At the European Council on 16/17 June, Heads of
State and Government recognised the need for a period of reflection
to consider the outcomes of the referendums in France and the
Netherlands. They said that they would come back to the matter
in the first half of 2006 to agree on how to proceed. As the
Prime Minister said to the House of Commons on 20 June, under
the current circumstances, the Treaty cannot proceed.
4. In other Member States, Belgium and Estonia are
proceeding with parliamentary ratification of the EU Constitutional
Treaty. The Czech Republic intends to proceed with ratification
of the EU Constitutional Treaty by referendum, although the requisite
enabling legislation has yet to be passed and the government has
announced that any ratification is unlikely before mid 2006.
The Irish Government have announced that they will not set a date
for their referendum. Poland has not decided how, if at all, to
proceed with ratification and the Polish President has said that
a referendum in 2005 looks "unrealistic". The Swedish
Government has announced that it will seek to postpone its parliamentary
ratification process and the Finnish Government has postponed
parliamentary ratification. The Danish and Portuguese Governments
have also postponed their referendums.
5. In these circumstances, further detailed analysis
or consideration of the provisions of the Constitutional Treaty
may be of more academic than immediate practical value. Nevertheless,
the Government has attempted to answer the questions posed by
the Committee as fully as possible.
6. The passages in bold are the Committee's own.
Values and Objectives
Given the variety of views expressed by our witnesses,
we find it difficult positively to conclude that the provisions
on values and objectives in the Constitutional Treaty mark a substantive
change from the similar provisions in the EU and EC Treaties,
or that they will be treated differently by the ECJ. Nevertheless,
we draw attention to the new concepts expressed in the Constitutional
Treaty, such as 'social justice' and the rights of the child,
which mark an emphasis on social rights, and to the views of some
of our witnesses that the values and objectives in the Constitutional
Treaty might affect the direction of legislative activity and
the way subsidiarity is defined. (Paragraph 16)
7. We share the Committee's view that the provisions
on values and objectives in the Constitutional Treaty do not mark
a substantive change from the similar provisions in the EU and
EU Treaties. On the ECJ's use of these values and objectives
to extend the EU's competences, the Foreign Secretary has previously
drawn the Committee's attention to the fundamental and uncontroversial
principle, embodied in Article I-11(2) of the Treaty that the
Union only has the competences which the Member States confer
upon it in the Constitutional Treaty (Article I-11(2)).
Primacy
We accept that, in strictly legal terms, the primacy
provision in Article I-6 of the Constitutional Treaty does not
alter the existing relationship between EU law and national law,
or the means by which any conflict between them is resolved, or
the extent of parliamentary sovereignty. International obligations,
including EU law in general and the primacy principle in particular,
can take effect in domestic law in the UK only through an Act
of Parliament, which can in turn be amended or repealed by a later
Act. The principle that Parliament cannot bind its successors
ultimately depends on acceptance by the UK's courts, and we note
the theoretical possibility that explicit agreement by the UK
Parliament to the primacy principle in the Constitutional Treaty
could result, over time, in the UK's courts giving greater weight
to that principle as against any UK legislation inconsistent with
it. However, if Parliament were to pass legislation which was
clearly expressed to be inconsistent with EU laws, it would amount
to a constitutional and legal revolution for any court in the
UK to assert that the principle that Parliament cannot bind its
successors no longer applied, and we consider it inconceivable
that any court in the UK would, in any foreseeable circumstances,
behave in this way. Our conclusion is therefore that the codification
of the principle of primacy in Article I-6 of the Constitutional
Treaty would maintain the existing situation. (Paragraph 32)
The omission of Article I-16 from the application
of Article III-376 (which excludes the other CFSP provisions from
ECJ jurisdiction) appears to us illogical, but we consider it
unlikely that this omission will result in the extension of ECJ
jurisdiction to the CFSP. (Paragraph 37)
8. We note the Committee's comments and welcome the
Committee's conclusions with regard to the codification of the
principle of primacy in Article I-6 and with regard to Article
I-16.
Legislative meetings of the Council in public
We accept that some of the discussion of legislation
will inevitably be in private, just as in national legislative
systems, but we look to the UK Government to ensure that public
discussion is not artificially restricted by shifting most of
the discussion to informal meetings. (Paragraph 45)
It will be important that legislation is not referred
from the Council to the European Council simply so that it can
be dealt with in private, and we believe that, at the very least,
the requirement for full reports on European Council meetings
by the Prime Minister and the opportunity for sustained questioning
of him will be increased. (Paragraph 47)
We ask the Foreign Secretary to keep us informed
of the Council's discussions on implementation of the requirement
to meet in public when legislating, and suggest that he make a
statement to the House on the subject when more is known. (Paragraph
48)
We recommend that the Government press for public
meetings of the Council to be broadcast and webcast and for there
to be an official transcript. (Paragraph 50)
We recommend that the Government press for the
Council to start meeting in public when legislating in advance
of the Treaty being ratified, and that it use the UK Presidency
as an opportunity to achieve this in 2005. (Paragraph 52)
9. The Government believe that it would not be possible
for the European Council to reach agreement on difficult issues
which cannot be resolved by the Council of Ministers if it is
obliged to work in the full glare of publicity. We have taken
careful note of the Committee's views on this issue.
Reform of the Council
We continue to believe that a longer-term European
Council Presidency will be a better system than the existing one,
but we accept that is hard to predict at this stage how it will
work in practice, and that careful management and a willingness
to cooperate will be essential in some areas, especially as regards
the new system of team presidencies. We reserve judgment on the
question of the accountability of the European Council President
until it is clearer whether he or she has more than a co-ordinating
role. (Paragraph 58)
10. We share the Committee's view that the creation
of a longer-term President of the European Council would result
in a better system than the present one. Under the Treaty, the
President would be chosen by and accountable to the democratically
elected Heads of Government of Member States.
11. It is the Government's view that team presidencies
should lead to somewhat greater coherence than the current less
formal co-ordination between subsequent Presidencies. This continuity
would also facilitate co-ordination with the President of the
European Council.
We would have preferred a less grandiose title
than Minister for Foreign Affairs, but we recognise the need for
better co-ordination of the EU's foreign policy, and we hope that
creation of the new post will have that result. Matters of responsibility
and accountability are particularly difficult in foreign affairs
because of the differing roles of the EU institutions and of Member
States. It remains to be seen whether 'double-hatting' will work
well, but, on balance, it would appear that the indications are
positive. (Paragraph 65)
12. Like the Committee, the Government would have
preferred a different title. The Union Minister for Foreign Affairs
would conduct the CFSP only as mandated by the Council, thus ensuring
accountability to the Member States. The combining of the post
of Commissioner for External Relations and the High Representative
for the CFSP would ensure greater consistency of the EU's external
action.
Enhanced cooperation
The provisions on enhanced cooperation have, to
some extent, been simplified, but we agree with our witnesses
that such simplification will not, in itself, make enhanced cooperation
more likely. Of greater significance are political factors and
the fact of enlargement of the Union to 25 Member States. We believe
it is right to maintain strict conditions for the commencement
of enhanced cooperation, in order to protect the interests of
non-participants, but we accept that a procedure limited as in
the Constitutional Treaty might provide a useful safety valve.
On the other hand, we would regard as unacceptable any tendency
to use the procedure as a means of coercing individual Member
States into agreeing EU measures and policies. (Paragraph 75)
13. This is a limited provision, governed by strict
conditions. The Government do not believe that the provision
could be used to coerce individual member States to agree to EU
measures and policies. This would go against the intention of
enhanced co-operation.
The Charter of Fundamental Rights
It could be argued that the explanation for Article
II-111 appears to reduce rather than increase legal certainty.
But Article II-111 should be sufficient to ensure that the ECJ
will not advance its human rights jurisdiction beyond the scope
of Union law as defined in its present case law. (Paragraph 87)
14. The Government believe that Article I-111 successfully
determines the scope of the Charter and clearly establishes that
it is directed at the institutions and bodies of the Union, in
compliance with the principle of subsidiarity. The Government
agree with the Committee's general conclusion that Article I-111
would secure no new powers for the ECJ.
We do not share the Government's optimism that
the horizontal clauses in the Charter effectively resolve any
potential for conflict between the Charter and the ECHR, but we
note the general expectation that the ECJ will continue its established
policy of closely following the case-law of the European Court
of Human Rights and avoiding conflict between the two courts as
far as possible. (Paragraph 91)
15. Article II-112(3) is intended to ensure the necessary
consistency between the Charter and ECHR by establishing the rule
that, insofar as the rights in the present Charter also correspond
to rights guaranteed by the ECHR, the meaning and scope of those
rights, including authorised limitations are the same as those
laid down by the ECHR. A list of the Charter Articles where both
the meaning and scope are the same as corresponding Articles of
the ECHR is included in the Commentary to the Treaty (Cm 6459,
pp 80-81). The Government note the Committee's view on this and
agree that the ECJ's current practices should ensure that conflict
between the two Courts is avoided.
We agree that the distinction between rights and
principles in the Charter is somewhat unclear, and we are concerned
that it could be left to the ECJ to determine which rights in
the Charter will be directly justiciable and which will not be.
(Paragraph 93)
16. The Government accept that the distinction between
"rights" and "principles" is somewhat unclear
and has taken note of the Committee's concerns with regard to
the ECJ. As is its current practice, the Government will continue
to monitor cases brought before the ECJ and will consider intervening
in appropriate cases to ensure that the UK's understanding of
the Charter is clearly put before the Court.
While it could be argued that the Charter's horizontal
clauses lack clarity and that the safeguards against unilateral
extensions of the Union's powers could be stronger, we do not
regard the incorporation of the Charter into the Treaty as likely
to increase either the current degree of legal uncertainty or
the current risk of the judicial extension of the Union's competences.
(Paragraph 95)
17. The Government note the Committee's conclusions
on the Charter and welcome its view that the Charter would be
unlikely to affect the current levels of legal certainty or allow
the judicial extension of the Union's competences.
The Government's 'red lines'
We strongly oppose the passerelle clause, but
accept that the national veto provided is an adequate safeguard.
(Paragraph 103)
18. The Government note the Committee's concern about
the passerelle clause but agree that the national veto provided
is an adequate safeguard. Any national parliament could block
adoption of the European Council's decision by making known its
opposition within six months. Before adopting the relevant decision,
the European Council would have to seek the consent of the European
Parliament. Unanimity is required for adoption of the decision
by the European Council.
It is clear that the Government's 'red line' has
been held in relation to taxation, Own Resources and Treaty revision.
With regard to social security and criminal law the 'red line'
has been maintained through the 'emergency brake' mechanism. (Paragraph
104)
19. The Government agree.
The 'emergency brakes'
We accept that the 'emergency brake' mechanism
will provide clear protection to a Member State which believes
a measure affects fundamental aspects of its criminal justice
or social security systems. But it should be noted that it is,
of course, a quite different procedure from straightforward unanimity
and will mean that political considerations will come into play
at the level of the European Council. (Paragraph 119)
20. The Government accept that the 'emergency brake'
mechanism as provided in the Treaty is a different procedure from
straightforward unanimity, but consider that there would be no
practical difference between the new provisions and unanimity.
We believe that special care will be needed by
Ministers to ensure that the special features of the different
legal systems in the United Kingdom are fully taken into account
when considering use of the emergency brake procedure. If the
Treaty comes into force, we will expect Ministers to explain fully
in their Explanatory Memoranda and other evidence to us the impact
of EU proposals on such features and the consideration the Government
has given to using the emergency brake to protect them. (Paragraph
120)
21. The Government have taken careful note of the
Committee's views.
Criminal Justice
We welcome the requirement for there to be a cross-border
dimension before EU action is possible, and the limits on the
scope for action in relation to substantive criminal law. In these
respects the Treaty's provisions would be better than the existing
situation. We also accept that a number of safeguards have been
included in the Treaty. We have reservations about the voting
arrangements for the adoption of criminal justice measures under
the Treaty, nevertheless, we accept that the emergency brake procedure
can provide an effective mechanism to protect Member States which
are initially outvoted. (Paragraph 139)
22. The Government agree with the Committee that
EU action should be directed at cross-border criminal cases to
ensure that offenders should not be able to evade justice simply
because the offence was committed in another Member State. As
the Committee notes, the emergency brake mechanism would safeguard
key areas of UK criminal justice and ensure that any approximation
of criminal law did not threaten the UK's distinct legal system.
We continue to have concerns about the establishment
of a European Public Prosecutor, but we note that it can be establishes
only by unanimous decision. (Paragraph 140)
23. As the Committee notes, a European Public Prosecutor
could only be created by unanimity. This means that the UK would
have to give consent. The Government remain unconvinced of the
need for the establishment of an EPP. Many other Member States
feel the same way.
Consequences if the Treaty is not ratified
We believe that the Constitutional Treaty contains
a number of helpful changes to improve the way the EU operates.
There is some evidence to suggest that the EU might continue to
operate reasonably well without them but, on balance, we believe
that the Treaty merits positive consideration. (Paragraph 143)
We do not accept that if the UK was alone or nearly
alone in rejecting the Constitutional Treaty this would necessarily
lead to its exclusion from full membership of the EU, but we do
accept that such a decision would result in a crisis in the UK's
relationship with the EU, with unpredictable consequences, which
could well undermine Britain's national interest. (Paragraph 154)
24. Each of the 25 signatories of the Treaty made
a commitment to seek ratification by the appropriate domestic
arrangements of each Member State. Declaration 30 of the Treaty
envisaged a discussion at the European Council if one or more
Member States were having problems ratifying the Treaty and did
not preclude the matter being discussed earlier. In line with
Declaration 30 of the Treaty, following the rejection of the Treaty
in the French and Dutch referendums, the matter was referred to
the European Council. The declaration on the Constitutional Treaty
at the European Council, 16-17 June, called for a period of reflection
which will enable a broad debate to take place.
Foreign and Commonwealth Office
25 August 2005
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