Select Committee on Constitution Ninth Report

Memorandum By Sionaidh Douglas Scott, King's College London


The draft EU constitution, while not containing proposed changes to the EU order of very great magnitude, does include some measures capable of having a significant impact on UK constitutional law.

  • Part I plays an important role in clarifying the powers of the EU and fundamental principles of EU law. Its provisions on subsidiarity and primacy of EU law appear to make little change to the exiting situation. The list of EU competences is welcome, although there may be a problem demarcating shared and supportive competences. The new 'delegated regulations' and 'implementing acts' have probably not been defined and delineated with sufficient clarity.
  • The Convention incorporates the Charter of Fundamental Rights in Part II. However there are still problems with its 'horizontal provisions' and thus questions as to its impact on national law. The distinction between 'rights' and 'principles' may need some clarifying.
  • Chapter III on Justice and Home Affairs contains some noteworthy provisions affecting national criminal law, an area until recently largely untouched by the EU. The Constitution 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, giving it new competences in criminal procedure, substantive law and a basis for the European Public Prosecutor. These provisions merit careful scrutiny.
  • The provisions on the Common Foreign and Security Policy are probably less far-reaching than those in JHA. There is no provision for the direct effect of EU measures in this area and the draft Constitution does little to add opportunities for QMV. The proposed EU foreign minister, despite their proposed formal right of initiative, will may be unlikely to have a significant impact on member states' foreign policy.

1. Introduction

To what extent will the proposed European Constitution, if implemented, affect the constitution of the United Kingdom?

On a very general level there is the issue of the extent to which further European integration per se has implications for the UK constitution. Of course, the extent to which integration affects the UK depends on what that integration involves (discussed below). However, regardless of particular features, with a 'European Constitution' the EU might itself begin to look more like a state, or 'super-state', even if contentious terms, such as 'federal' were left out of the final draft. Arguably, the EU has had a Constitution for some while, if not an express one,[91] but a written formal document makes more evident the nature of its legal order, with EU legal personality, a Charter of Fundamental Rights, a President, and a Foreign Minister, even if it can act only on the basis of conferred competences (Article I-9). Such a Constitution might seem to refurbish, or even create, a new identity for the EU, perhaps bringing this home to European citizens, even eventually reaching their hearts and minds?

Article I-5 of the draft Constitution requires the Union to 'respect the national identities of its Member States', as well as stating that the EU 'shall respect their essential State functions . . .' and the term 'respect' has been used in previous treaties (e.g. A 6(3) EU). However, it is not entirely clear what the term 'respect' means in this context. Certainly, neither Article I-5, nor the draft Constitution as a whole, contains a clear statement that the Member States are sovereign and independent. At the very least this situation reinforces the perception held by some (e.g. Neil McCormick) that the European legal space is not one of discrete separate legal orders, nor one of hierarchy between the EU and its member states, but rather a plurality of overlapping legal orders, rather more fluid than we had imagined it, with interesting questions for constitutional allegiances.

Which articles in the draft Treaty have particularly significant constitutional implications for the United Kingdom?

What would the constitutional effect of the implementation of those articles be?

2. 'Constitutional implications'

One initial issue - what is meant by 'constitutional implications' for the UK? What sense of the UK constitution are we using here? Constitutions are notoriously slippery concepts, particularly that of the UK, largely unwritten, in which it is not so very easy to distinguish (even principal) constitutional laws from ordinary laws. Most constitutional law textbooks include the following as constitutional law: general principles of constitutional law (such as parliamentary supremacy, separation of powers, responsible and accountable government); the institutions of government (including basic structures - parliament, the executive, the judiciary, executive agencies, as well as key powers such as foreign policy and defence, expenditure and tax); and the relations between the individual and the state (including human rights, state security, emergency powers and terrorism). Article I-5 of the Draft Constitution, cited above, seems to follow this view, and, stated in full reads as follows:

    1.   The Union shall respect the national identities of the Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including those for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security.

But 'Constitution' may have a wider sense too. The EU draft constitution is a 'thick' constitution to the extent that it includes much detail which goes beyond the basic formulation set out above. It includes in Part III detailed rules on areas such as agriculture and competition, as well as various policies in which the EU by no means has exclusive competence. If one perceives 'constitution' in this 'thick' EU sense, then arguably, everything in the EU draft has a capacity to affect the UK constitution.

I will not assume 'constitution' has this sense in my response. In the context of this paper, I take 'constitution' to imply the term for the law that establishes and regulates the main organs of government and their powers, as well as foundational constitutional principles, such as the rule of law, sovereignty of Parliament, separation of powers, and the relations between the individual and the state. The question then becomes - how much in the draft European Constitution is new, with a potential impact?

The UK has been put under pressure by both pro-Europeans and eurosceptics to hold a referendum. During the Convention the Government resisted this pressure, arguing that the changes were not of sufficient constitutional importance. This position perhaps reflected the UK Government's fear of its ability to win a referendum, rather than a genuine view that the draft Constitutional Treaty really represents a mere 'tidying up' exercise. A more general view now seems to be that the draft Constitution goes beyond consolidation, involving extensions of the previous EU legal order which have implications for the UK's sovereignty and parliamentary democracy. The rest of this paper details what these might be.

3. Assessment of Draft Constitutional Articles (in chronological order).

Article I-9 Fundamental Principles: Subsidiarity

Article I-9 (3): This provision deals with the principle of Subsidiarity. The wording is similar to that in A 5 EC. However, a new Protocol on the Application of the Principles of Subsidiarity and Proportionality has been annexed to the draft Constitution, by which all Commission propositions will be sent to national parliaments for review. If 1/3 of parliaments object then the Commission will have to review the proposal. This new early warning system to give national parliaments a clear role in monitoring subsidiarity is another important, democratic step. The key result of this reform may be to make it clear to domestic media and national publics that their national parliament has full information and a role to play at the start of the process. If the system works, it will also encourage communication across national parliaments. This is surely a constitutional feature, if hardly a negative one.

However, the Protocol is unclear on certain matters - what would be the effect if national parliaments objected to some matter other than subsidiarity - i.e. human rights, or the substance of the measure. The Protocol also apparently provides no possibility for parliaments to raise fresh objections after a measure has been amended by the Council or European Parliament. Therefore this would still leave gaps as to national parliaments' ability to function re subsidiarity.

4. Article I-10 - Primacy of Union Law: This is a new article, which enshrines the supremacy of EU law for the first time into a treaty. Several comments can be made:

a) Article 10 aims, I imagine, to set out the situation that has existed in EC law following from the ECJ's caselaw, starting with Costa v Enel. This caselaw has generally been accepted by the English courts. However, even if Article I -10 were to be implemented there would still be, in UK law, no clarity as to what would happen were Parliament to pass a statute going expressly contrary to EU law. UK courts would be bound either to follow Parliament's express wish, or to go against that wish and the authority of Parliament, and follow EU law. Article I-10 does not settle this quandary.

b) Article I-10(1) refers to the primacy of the EU only 'in exercising competences conferred on it'. Article I-10(1) therefore does not settle the issue of who is to determine the boundaries of EU competences (the so-called 'Kompetenz -Kompetenz' issue). This issue may still raise key issues notwithstanding the delineation of competences in the new EU draft Constitution (see below).

5. Articles I-11-16: Categories of Competence:

a) For the first time, a list of EU competences has been set out. However, there may still be problems likely to affect UK constitutional law. I see the problem lying in the dividing line between Article I-13 (shared competences) and Article I-16 (co-coordinating/supporting competences). For example, health is likely to be contentious. Article I-13 refers to 'common safety concerns in public health matters' as a shared competence and Article I-16 'protection and improvement of human health' as a supporting competence. There is likely to be some overlap. The difference between the two types of competences lies in the capacity of a shared competence to have a pre-emptive effect on member state action. Once the EU has exercised competence in a shared area the Member states may not act. This is likely to be contentious in areas such as health, which even if not directly constitutional, are still thought of as preserves of national sovereignty, as well as large spending areas in which different national economic, social and tax polices will make a difference.

b) Article I-14: 'The coordination of economic and employment policies' also bears further scrutiny. What is the status of this article? It would seem to be a shared competence, although it doesn't fall under the list in Article I-13. It is a new clause, although to some extent reflects previous practice and case law. However, its implied status as a shared competence would imply pre-emption of state action, once the EU has acted - controversial particularly with regard to economic policy in Article 14(1), and again, with possible constitutional implications.

c) Article I-17: Flexibility clause:

This is an amended version of Article 308 EC - the 'implied powers' clause which allowed the EC to take actions on certain matters, even if there were no express provisions enabling it do so in the treaty. Notably, in its amended form it applies to areas covered by all 3 pillars, i.e. to JHA (Justice and Home Affairs) and CFSP (Common Foreign and Security Policy) as well as EC matters, i.e. its subject matter is no longer restricted to the Internal Market. In theory it might provide a new base for actions in controversial areas, extending the EU's competence. However, there are probably enough safeguards written into it - the Council must act unanimously under it, and the national monitoring procedure for subsidiarity under Article 9(3) applies.

6. Legal Acts of the Union

a) New capacity for direct effect: Notably, the new category of European law and Framework law (Article I-32) now covers the EU's 3rd Pillar - the PJCC (Police and Judicial Co-operation in Criminal Matters) (see Article I-41 (1) and Part III draft Constitution). Nowhere does the draft Constitution imply that in this context, these measures will have different characteristics than elsewhere. So they could have direct effect and the ECJ's caselaw from Van Duyn and Marleasing and Unilever Italia will apply to police and judicial criminal matters if taken by the new European law or framework law. This goes some way toward building a directly effective EU criminal law, thus creating a relationship between the individual and the state in this area.

(This will apparently not be the case with the CFSP - Article 39(3) specifies the use of 'European decisions' which will replace the use of joint actions and common positions under the present CFSP).

b) Non-legislative acts: Articles I-35 and 36.

Article I-35 introduces 'delegated regulations' - an entirely new clause as such acts are not currently provided for. The implementing acts covered by Article I-36 (2) are based on Article 202 EC. But the distinction between the two does not seem to be very clear. Nor is there any great clarity as to what is and is not a legislative rather than a delegating or implementing act. This has an impact for legislative procedures, comitology and parliamentary scrutiny of measures.

7. The Charter of Fundamental Rights

Now incorporated into Part II draft Constitution.

a) Problems still remain concerning the 'horizontal provisions'. When will the Charter apply to the member states? The question is still what is meant by Member states 'implementing' EU law. This matters because once a Charter provision falls within member state purview then national courts may have to adjudicate the matter. They will have to adjudicate a Charter which contains a much broader range of rights than those existing under the Human Rights Act. The Charter contains socio-economic rights for example, still a contentious matter. There is a difficulty about making social rights justiciable, where the strict enforcement of such rights would transfer some key decisions on social policy, and even spending, from the legislature to the Courts. The Convention attempted to address this difficulty by making a distinction between principles and rights in Article 51 (1) of the Charter. Additionally, Article 52(5) provides that Charter provisions containing principles will be justiciable only in the interpretation of Member State legislative measures to give effect to such principles.

But there are still problems in the rights/ principles distinction in the Charter. Principles are supposed to be aspirational only, rather than directly effective justiciable rights. But it is still conceivable that the ECJ might take its own approach, transforming some principles into directly effective rights.

b) National judges will also be able to declare UK law invalid if it violates a Charter right, a situation which goes beyond there powers under the Human Rights Act, where they can only issue a declaration of incompatibility. So the scope of the Charter is a crucial matter.

8. Chapter III - Justice and Home Affairs

This is an ambitious chapter, which makes some important changes to the existing situation which have an impact on UK constitutional law. The subject matter of Justice and Home Affairs (JHA) - in particular the present EU 3rd Pillar (PJCC), criminal law and criminal justice, and relations between individual and the state - are areas close to the heart of national sovereignty, as well as being subject to very different traditions in Member States (in spite of initiatives like Corpus Justice which works towards a European Criminal code). Although, since the Maastricht Treaty, the EU has had some competence in JHA (and prior to that intergovernmental co-operation existed, e.g. through the Trevi group) progress was not as swift as it could be until September 11, after which the EU adopted a substantial amount of legislation aimed at promoting security. Although Article III-163 states that 'This Chapter shall not affect the exercise of the responsibilities incumbent upon Member States with regard to maintaining law and order and safeguarding internal security' there is nonetheless, in the process of being created, a substantial constitutional criminal law of the EU. I have restricted my comments to those concerning PJCC (3rd Pillar) as I think these are most likely to have a constitutional impact in the UK.

9. There are striking changes to decision making in this area.

In the field of criminal law and policing the majority of legislation will be taken by QMV, excluding only the creation of a European Public Prosecutor, cross border actions by the police and operational police measures. (Art II 171 - 176).

Member states will also lose their right of initiative in this field from 1 May 2004 (already planned prior to the draft Constitution), so the Commission will thenceforward have the sole right of initiative. As already stated above criminal and policy legislation will take the form of EU laws capable of direct effect rather than framework decisions, decisions and Conventions as at present. Judicial control has been expanded so the ECJ's ordinary jurisdiction will apply to JHA with the exception of validity and proportionality of policing (Art 283).

10. The competences of the EU also change in these areas.

The EU's criminal law powers will be more clearly defined in 3 areas:

a) Cross-border co-operation (Art III 171(1)) - would include areas such as mutual recognition of all forms of judgements and other judicial decisions - i.e. freezing of assets and so on. This has an impact on national criminal law, as actions already taken by the EU illustrate. The European Arrest Warrant (EAW) has already been adopted in June 2002, partly as a reaction to September 11. It effectively abolishes extradition in the EU, requiring instead member states to recognise and enforce arrest warrants issued in other member states. The EAW was passed unanimously under the PJCC as a framework decision, but under the draft treaty measures could generally be taken under QMV. There was much disquiet at the time the EAW was passed - partly because reasons for refusing to recognise them are extremely limited, and do not include comprehensive human rights grounds. The EAW is basically premised on mutual trust in the respective criminal law and justice systems of the member states - as are the draft treaty's provisions on cross border co-operation. This trust is perhaps not so evident all the time - for example, the English High Court refused to extradite the Paris metro bomber suspect to France quite recently (in the Ramda case) on the basis that they felt that the evidence against him had been obtained from a co-accused under oppression.

b) Criminal procedure (Art III 171(2)). This covers areas such as admissibility of evidence, the rights of individuals in criminal proceedings, victims' rights. Under the draft Constitution, European framework laws may establish minimum rules in areas having a cross-border dimension. This could be quite intrusive. 'Cross border dimension' is not defined but could be quite wide in scope, in which case, the EU could have a considerable jurisdiction. Although some legislation might be welcome to counteract the rather repressive effects of measures such as the EAW and European definition of terrorism, the problem is that criminal procedure differs widely from state to state. Although accusatorial and inquisitorial systems did begin to converge as early as the 18th century, there has not been very much convergence, There is still mutual criticism - e.g. criticism of plea bargaining, and the greater resources of prosecutors in Anglo-Saxon jurisdictions by continental systems, criticisms of the retention of Juge d'instruction on the continent by Anglo-Saxons.

Although organisations like the European Convention on Human Rights illustrate a successful transnational criminal law concerning individual rights, the ECHR operates at a very minimal level, and what the EU aspires to do could go much further. Contemporary attempts to set up transnational criminal procedure suffer from the lack of assimilation. The US was not the only country to have critical reservations about the ICC. France too, had reservations based on its procedures. Recently, the first defendant to appear before the ICTY (International Criminal Tribunal for the former Yugoslavia) challenged the limits on the defence ability to cross-examine prosecution witnesses. In that context, there was a problem resulting from the struggle of the parties and judges to adapt a mix of doctrines to a hybrid situation. Different legal and political cultures give rise to different expressions of criminal justice. To attempt legal convergence results in what Gunther Teubner calls 'legal transplants as irritants' - or an interference like that on the TV screen when the picture is blocked.

Therefore, there may be no justice where common action is taken, because there is no substantive notion capable of underpinning it shared by Member States, like a host of computer programmes that will not speak to each other. This area demonstrates a real need for subsidiarity, which after all is another structural attempt to promote freedom and justice - the two other key components of the EU's 'Area of Freedom, Security and Justice' to which its JHA policy aspires.

c) Substantive criminal law (Art III 172). It is proposed that the EU have substantive powers over 10 specific crimes, including terrorism, trafficking in human beings, drug trafficking, and money laundering. This list can also be extended by the Council acting unanimously with the consent of the European Parliament.

A substantive conception of criminal justice to underpin any common EU criminal law is a most formidable challenge. Criminal law and justice are so closely related to national culture and national sovereignty. The EU managed to adopt its common definition of terrorism in the aftermath of September 11 (only 6 member states actually had a crime of terrorism on their books at that time) but it may not be easy to reach agreement in the future.

11. European Public Prosecutor. The draft Constitution also includes Article III 175 - the base to establish a European Public Prosecutor. The provisions concerning the establishment and powers of the Prosecutor are very vague but this wholly new power should enable the Council of Ministers to establish such a prosecutor with a broad jurisdiction to investigate and prosecute all serious crimes affecting more than one member state (Although prosecutions would have to be brought in the courts of a member state). Unanimity is required to set up a European Prosecutor and disquiet about this office has been expressed in some Member states. It might be the case that a Prosecutor would be established, but with powers only in those member states which had consented to its jurisdiction. This would then create all sorts of problems regarding the Prosecutor's relations with those states which had not consented (creating a situation like that regarding the US and the International Criminal Court).

Existing bodies, Eurojust and Europol, would also gain an increase in powers. Article III-174(2)(a) will allow Eurojust to initiate criminal prosecutions (although formally they will be conducted by 'competent national authorities') as well as its current mission of co-ordinating co-operation between national authorities in relation to serious crime. According to Article III 177 Europol's competence and remit would be increased to cover all serious crimes with a cross border element. Art III 177(3) does however specify that any 'coercive action' 'shall be the exclusive responsibility of the competent national authorities'. So Europol has not yet been given its own right of initiative as such.

12. In conclusion, the effect of these amendments (and even existing measures, which have not always been noted for what they are) is that much criminal law and procedure, as well as policing measures, are being taken out of the hands of national parliaments. Additionally, this has not been accompanied by accountability elsewhere. Control over Agencies such as Eurojust and Europol is still weak. There is insufficient scrutiny.

In its conclusions, Convention Working Group X stated that: 'it is important that citizens feel that a proper sense of "European Public Order" has taken shape and is actually visible today in their daily lives. In this respect the principles of democracy and transparency are of the utmost importance.' The EU has been active in its AFSJ (Area of Freedom, Security and Justice) since September 11 taking steps against terrorism to promote public security. But too often this actions has been at expense of democracy, transparency and civil liberties, not to mention the sovereignty of national parliaments in these areas.

13. Common Foreign And Security Policy (CFSP)

Will the increase in powers of the EU in this area threaten national sovereignty?

a) Article I-39(7) specifies that measures taken under the CFSP are to take the form of European decisions and that European law and framework laws are excluded. Therefore CFSP acts will not be capable of direct or indirect effect.

b) Article I-39 also states that decisions are to be adopted unanimously 'except in the cases referred to in Part III'. The Convention extensively debated qualified majority voting (QMV) in the CFSP and a large number of Convention members argued for its widespread use. France and Germany proposed using QMV in their joint institutional paper, although after the Iraq crisis, France seemed to have abandoned the idea. The UK in particular was strongly opposed to any QMV in CFSP, even to any minor extensions in implementation. Some scope for QMV in the CFSP exists in the draft Constitution (Article III-201 (2) and (3) - however, most of these already existed, with the exception of Article III-201(3) by which the European Council has the power (by unanimous decision) to extend QMV (although this does not apply to defence - Article III 201 (4)).

c) Nevertheless, the possibility for enhanced cooperation in CFSP has been strengthened. In an important move forward (Article III-213) some forms of enhanced cooperation are now to be allowed in security and defence policy. Crisis management tasks may be attributed to a group of countries, so-called 'structured cooperation' may be established concerning capabilities and the possibility for closer cooperation on mutual defence is also proposed. This is, however, a controversial area and will be discussed again at the IGC. The UK in particular is nervous about 'structured cooperation' in defence and any possible competition with NATO, and strongly opposes a mutual defence clause.

14. New EU Foreign Minister

The main change in the draft Constitution on CFSP is the double-hatting of the new EU foreign minister (Article I-27), responsible to the Council for CFSP, and at the same time, occupying the role of Vice-President of the Commission and coordinating external action policies. Would this role threaten the autonomy of the UK's foreign policy?

Under the draft Constitution, the EU foreign minister has a formal right of initiative (Article I -27(2) and Article III-200) which means that they will have a fair amount of weight in designing a common policy, providing that the division of tasks between the foreign minister and the permanent president of the European Council are sufficiently defined.

However, during the Iraq crisis Javier Solana, the EU's current High Representative for the CFSP, had no role. Even the then Greek presidency's efforts in calling for an emergency summit were to little avail. It is doubtful whether a more permanent president of the European Council and an EU foreign minister would have been in any stronger position to mandate an 'EU position' over Iraq. Indeed, the splits over Iraq call into question the value of having an EU minister for Foreign Affairs. It seems unlikely that this new post will remove the reluctance of the member states, especially the larger ones, to cede national sovereignty on foreign policy issues and thus create a genuine, substantive foreign policy for the foreign minister and president to implement.

Sionaidh Douglas-Scott
King's College

91   See e.g. Sionaidh Douglas-Scott, Constitutional Law of the European Union (2002) chapter 15, on this issue. Back

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