Select Committee on Constitution Ninth Report


By the Select Committee on the Constitution




1. In June 2003, the Convention on the Future of Europe presented Parts I and II of its work to the European Council at Thessaloniki. Parts III and IV were presented to the Italian Presidency in July. Together, these four parts constitute the draft Constitutional Treaty for the European Union.

2. The draft Treaty was laid before the UK Parliament in August 2003 (Cm 5897). We are aware that many aspects of the draft Treaty have been examined in depth by other committees at Westminster, particularly the House of Commons European Scrutiny Committee and the House of Lords European Union Committee. The European Union Committee has published a large number of reports considering the draft Treaty article by article and is shortly to publish a further, overview report. It is our intention that our report should be read in conjunction with these other reports. We are also conscious that the draft Treaty is only a starting point—the final text has still to be negotiated at the Inter-Governmental Conference which began on 4th October. Any Treaty would then have to be incorporated into UK law by a bill subject to the usual Parliamentary procedures. If such a bill is introduced we will comment further. In view of the wide public interest in the potential implications of the draft Treaty, we considered that we should set out to inform the debate at an early stage, not least to assist those currently negotiating the Treaty on behalf of the UK.

3. The Committee is of the view that the draft Constitutional Treaty will, if implemented in UK law, have a constitutional impact on the United Kingdom. We therefore wrote to the Rt Hon. Peter Hain MP, the Government's representative to the Convention, to ask him to set out the Government's view on how the Treaty would affect the constitution of the United Kingdom (see Appendix 2). We received a reply from the Foreign Secretary, the Rt Hon. Jack Straw MP (see Appendix 3).

4. We also issued a Call for Evidence to a number of academic specialists asking for their views (see Appendix 4). In response to this, we received memoranda from Professor Anthony Arnull (University of Birmingham), Professor Rodney Brazier (University of Manchester), Ms Sionaidh Douglas-Scott (King's College London), Professor John McEldowney (University of Warwick) and Mr Alan Trench (The Constitution Unit, University College London). All the evidence we received is published with this Report. Professor Patrick Birkinshaw also submitted to us a paper that is to be published separately.[1] We are indebted to these individuals for their assistance, from which we have derived both information and insight. We summarise the main constitutional concerns raised by Professor Arnull, Ms Douglas-Scott, Professor McEldowney and Mr Trench below. Professor Brazier's paper deals solely with a specific question relating to the adoption of the draft European Constitution, namely the place of the advisory referendum in the process of dealing with significant constitutional questions in the United Kingdom. We do not comment on this paper in relation to the draft Treaty. We have nonetheless printed it as it raises a point of constitutional significance to which we may wish to return in a future report.

The scope of the draft Constitutional Treaty

5. We first draw attention to some of the most prominent provisions in the Draft Treaty, although such an outline inevitably passes over very many matters of practical importance.

6. Although the avowed purpose of the draft Treaty is to prepare a Constitution for the European Union, the legal status of the document, if and when it is signed and ratified by the member States of the Union, will remain that of a treaty at international law. It is by means of treaties that the structure, composition aims and objects of all international organisations are determined.

7. One aim of the draft Treaty is to re-organise and present in an accessible form the present provisions which in a most complex way, explained by the history of the European Union, govern the activities of the Union. Furthermore, the framers of the draft Treaty have included many provisions which in various ways change the structure of the Union, change the working of the Union organs, and modify the links between the Union and the democracies of Europe.

8. Title I of Part I of the draft Treaty deals with the definition and objectives of the Union. By Article I-5 (relations between the Union and the Member States) the Union shall "respect the national identities of the Member States, inherent in their fundamental structures, political and constitutional" and shall "respect their essential State functions"; the Union and the Member States shall "in full mutual respect, assist each other in carrying out tasks which flow from the Constitution". Article I-6 confers legal personality upon the Union.

9. In Title II of Part 1, Article I-7 requires the Union to recognise the fundamental rights contained in the Charter of Fundamental Rights, which forms Part II of the Constitution. Article I-8 provides that every national of a Member State shall be a citizen of the Union (additional to his or her national citizenship), and sets out the rights which citizens of the Union shall enjoy.

10. In Title III of Part 1, Article I-9(1) provides that "the limits of Union competences are governed by the principle of conferral", and that the use of those competences is governed by the principles of subsidiarity and proportionality. By Article I-9(2), the principle of conferral is explained, namely that the Union shall act within the limits of the powers conferred on it by the Member States: "Competences not conferred upon the Union in the Constitution remain with the Member States". Provision is made by Article I-9(3) and by the Protocol on the Role of the National Parliaments in the European Union for a procedure informing all national parliaments of the Commission's legislative proposals and enabling national parliaments to submit their views on whether a legislative proposal complies with the principle of subsidiarity.

11. In Title III of Part I, by Article I-10, "The Constitution, and law adopted by the Union's institutions in exercising competence conferred on it, shall have primacy over the law of the Member States". Member States are to take all appropriate measures to ensure fulfilment of obligations flowing from the Constitution.

12. Articles I-11-16 deal with the categories of competence that the Constitution contemplates; these include exclusive competence (as to which only the Union may legislate) in respect of establishing the competition rules necessary for the internal market, monetary policy (for those Member States that have adopted the euro), common commercial policy, customs union and the conservation of marine biological resources under the common fisheries policy. Areas of shared competence are specified in Article I-13, and another category of supporting, coordinating or complementary action is set out in Article I-16. Article I-14 deals with the coordination of economic and employment policies. By Article I-15, the Union's competence in matters of common foreign and security policy covers all areas of foreign policy and all questions relating to the Union's security which might lead to a common defence. Article I-17 (Flexibility clause) provides a procedure by which necessary powers additional to those conferred by the Constitution may be obtained by a procedure that requires a unanimous decision by the Council of Ministers.

13. The Union's Institutional Framework is governed by Title IV, chapter 1 of Part 1. That framework comprises the European Parliament, the European Council, the Council of Ministers, the European Commission and the Court of Justice. By Article I-21, the European Council shall by qualified majority elect a President, for a term of two and a half years, renewable once, who may not hold a national mandate and whose office replaces the existing arrangement for a rotating President held for six months. In relation to the European Council and the Council of Ministers, Article I-24(1) provides that voting by qualified majority shall in general require a majority that consists of the majority of Member States, representing at least three fifths of the population of the Union; in certain cases, the required qualified majority shall consist of two thirds of the Member States, representing at least three fifths of the population of the Union. New provision is made for the composition of the European Commission (Articles I-25 and 26), including the new post of Union Minister for Foreign Affairs (Article I-27), who as one of the Vice-Presidents of the Commission would be responsible for handing the Union's external relations.

14. By title V, chapter 1, there is set out a modified hierarchy of legal instruments of the Union, namely "European laws, European framework laws, European regulations, European decisions, recommendations and opinions". Of these, a "European law" would replace the existing category of regulations; a "European framework law" would replace the existing category of directive (with some modification); and the category of "European regulations" would be new. Article I-35 provides for a new category of "Delegated regulations".

15. Title V, chapter 2, makes specific provision for measures implementing the common foreign and security policy (Article I-39), the common security and defence policy (Article I-40), and the area of freedom, security and justice (Article I-41) and also provides for the Union and Member States to "act jointly in a spirit of solidarity" if a Member State is the victim of terrorist attack or natural or man-made disaster.

16. Title VI (The Democratic Life of the Union) contains a group of Articles dealing with principles of representative and participatory democracy, the social partners and social dialogue, the European Ombudsman, the observance of transparency by Union institutions and the protection of personal data.

17. Title IX (Union Membership) provides procedure for the admission of additional Member States that respect the values referred to in Article I-2. Article I-58 establishes means of suspending a State from Union membership rights, when there is a clear risk of a serious breach of those values. Article I-59 makes provision for voluntary withdrawal from the Union by any Member State.

18. Part II of the draft Treaty contains the Charter of Fundamental Rights of the Union, which is to be observed by all Union institutions, bodies and agencies, and by Member States "when they are implementing Union law" (Article II-51(1)). The Charter "does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task of the Union" (Article II-51(2)). It is intended that rights under the Charter which correspond to rights protected by the European Convention on Human Rights shall be interpreted in an equivalent manner (Article II-52(3)).

19. Part III of the Treaty contains more detailed provisions that give effect to the policies and functioning of the Union (for example, the establishment of the internal market by chapter 1, section 1, and the free movement of persons and services by chapter 1, section 2). In respect of economic and monetary policy, chapter II distinguishes where necessary between Member States that have adopted the euro and those that have not.

20. In Chapter IV of Part III, Article III-158(1) provides for the Union to constitute "an area of freedom, security and justice with respect for fundamental rights, taking into account the different legal traditions and systems of the Member States". This Chapter deals with important areas of public policy, including policies on border checks, asylum and immigration (Section 2), judicial co-operation in civil matters (Section 3), judicial co-operation in criminal matters (Section 4) and police co-operation (Section 5).

21. Title V of Part III (The Union's External Action) deals in Chapter II with the Union's common foreign and security policy and in Chapter IV with co-operation with third countries and humanitarian aid.

22. Title VI of Part III (The Functioning of the Union) contains many provisions that are to govern the composition and working of the Union's institutions, including the European Parliament (Articles III-232-243), the Commission (Articles III-250-257), and the jurisdiction and procedures of the Court of Justice (Articles III-258-289).

23. Part IV (General and Final Provisions) provides, among other things, for the repeal of earlier European treaties once the Treaty establishing the Constitution has come into force (Article IV-2), for the geographical scope of the Treaty (Article IV-4) and for a procedure by which provisions of the Treaty may be amended: subject to the convening of a special Convention or a conference: any amendments will require to be ratified by all the Member States (Article IV-7). By Article IV-9, the Treaty establishing the Constitution shall be concluded "for an unlimited period".

Constitutional concerns

24. It is inevitably very difficult in reviewing such a draft document to select matters that will have a particular impact on the operation of the United Kingdom constitution, but the following are among the matters to which the papers submitted to us draw attention. Subject to the work of other Parliamentary Committees, we may give further consideration to these at a later date.

    (1)  The significance of (a) the express provision for the primacy of the Constitution and of European Union law generally (Article I-10(1));[2] (b) the express confirmation that powers not conferred on the Union remain with Member States (Article I-9(2)); and (c) the proposed duty of the Union to respect the national identities of the Member States (Article I-5(1));

    (2)  The impact and likely effect of the new provision for the division of powers (exclusive competence, shared competence, and supporting, coordinating or complementary action) between the Union and Member States; and the limitation on national legislation that would arise where the Union has taken action in an area of shared competence or supporting action (Articles I-12,13 and 16);

    (3)  The extent to which the use of European framework laws would be likely to differ from the present directives, with regard both to the exercise of national discretion and the established doctrine of direct effect in European law;

    (4)  The effect of the new formulae for qualified majority voting on the ability of United Kingdom bodies to influence decisions of the European Union;

    (5)  The effect upon the authority of United Kingdom institutions of the proposals for extending decision-making by qualified majority voting into new areas;

    (6)  The effect upon United Kingdom institutions of the proposals for (a) the Presidency of the European Council and the Union Minister for Foreign Affairs, and (b) the modified composition of the Commission;

    (7)  The effect upon United Kingdom institutions of the new competences of the Union in relation to the common foreign and security policy (Article I-15) and the area of freedom, security and justice, and the provision for qualified majority voting in these areas;

    (8)  The effect on the United Kingdom Parliament of the proposed 'early warning decision system' whereby notice will be given to national parliaments of legislative proposals with a period of six weeks being allowed for views to be submitted by national and devolved parliaments on the principle of subsidiarity (Article I-9(3) and the Protocol on the Application of the Principles of Subsidiarity and Proportionality);

    (9)  The future status and effects of the Charter of Fundamental Rights;

    (10)  The impact on the system of criminal justice within the United Kingdom of Chapter III on Justice and Home Affairs, which makes it possible for EU measures in this area to have direct effect (currently not the case) as well as increasing the EU's powers in the criminal law field;

    (11)  The impact on the system of criminal justice within the United Kingdom of the proposals for European action in respect of serious crime, including the creation of a European Public Prosecutor (Article III-175) and other measures relating to cross-border crime;

    (12)  The effect of the designation of the draft Treaty as a constitution, and whether this will (a) have a material effect on the future development of the European Union; (b) necessarily mean that future developments will result in a weakening in the authority of the national constitutions of Member States; and (c) subject the constitution of the United Kingdom, which is essentially unwritten, to greater pressures for change than the constitutional arrangements of other major European states.

    (13)  The issue of whether the European Communities Act 1972 will continue to be recognised as the legal mechanism by which European Union law has effect within the United Kingdom; and whether continuing development in the European Union will have material effects upon the constitutional doctrine of the sovereignty of Parliament;

    (14)  The effect of procedures and powers in the draft Treaty upon the devolved organs of government in Scotland, Wales and Northern Ireland; upon the relations of these bodies with the United Kingdom Government; and upon the position of local government in the United Kingdom; and

    (15)  The proposals for withdrawal by a Member State from the Union (Article I-59), and for amendment of the proposed Treaty (Article IV-7), and whether they materially affect consideration of the impact of the Treaty on the United Kingdom constitution.

25. We draw attention to these aspects of the draft Constitutional Treaty for the European Union as raising issues of principle relating to principal parts of the constitution of the United Kingdom.

1   'A Constitution for the European Union? - A Letter from Home', European Public Law vol. 10(1) 2004 (forthcoming). Back

2   This is one of several matters currently under consideration by Sub-Committee E of the House of Lords European Union Committee. Back

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