House of Lords - Constitution

Select Committee on Constitution Sixth Report

CHAPTER 3: THE LISBON TREATY AND THE UK CONSTITUTION

43. In this Chapter, we consider those features of the Lisbon Treaty that appear to have direct implications for the UK constitution. In surveying these we do not seek to replicate the detailed work of the European Union Committee in their report, The Treaty of Lisbon: an impact assessment. Rather, the two reports should be read in conjunction with each other.

44. In our Call for Evidence, we invited witnesses to address how implementation of the Lisbon Treaty would affect the practical operation of the key elements of the UK constitution. We start by considering whether the Lisbon Treaty is likely to bring about a period of stability in the UK's relationship with the EU. We then look at the possible impact of the Lisbon Treaty on the following areas of constitutional significance:

the definition of the competences of the EU and Member States;

people's rights and responsibilities;

citizenship;

the UK Parliament and parliamentary sovereignty;

the UK's nations and regions;

the Area of Freedom, Security and Justice; and

the courts and the judiciary.

45. An issue which has generated debate is whether the Government have successfully defended their 'red lines'. The 'red lines' were non-negotiable positions which the Government insisted were preconditions to the UK agreeing to the text of the Lisbon Treaty. The 'red lines' related to the following areas:

labour and social legislation;
foreign and defence policy;
police and judicial processes;
the tax and social security system; and
national security.

Making a judgement on the solidity of the exemptions secured in these five areas is highly complex and we do not seek to duplicate the detailed policy analysis undertaken by the European Union Committee. However, as part of our examination of the arrangements in respect of the Area of Freedom, Security and Justice (an area which relates to key aspects of the UK constitution) we do consider the exemptions secured in accordance with the third of these 'red lines'.

A lasting settlement?

46. Given the failure of the Treaty establishing a Constitution for Europe (the Constitutional Treaty), and the frequency with which reforms have been proposed in recent years, we sought to gauge whether the Lisbon Treaty offers the prospect of a period of stability in the years ahead. As Professor Tridimas pointed out, the treaties governing the EU have been amended no fewer than nine times in the past 30 years, leaving aside the Charter of Fundamental Rights of the European Union and the Lisbon Treaty itself.

47. The Government view the reforms that would be brought about the Lisbon Treaty as providing a lasting settlement. They drew to our attention the agreement made at the December 2007 European Council that "the Lisbon Treaty provides the Union with a stable and lasting institutional framework. We expect no change in the foreseeable future, so that the Union will be able to fully concentrate on addressing the concrete challenges ahead, including globalisation and climate change". The Government also highlighted the preamble to the Lisbon Treaty which provides that it will "complete the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action" (p 19).

48. Dr Anthony told us that the Lisbon Treaty represented a "further maturation" of the EU, but equally the proposed new institutional arrangements should not be regarded "as key to any lasting settlement" (p 19). Similarly, in a forthcoming academic article sent to us, Professor Paul Craig states that the Lisbon Treaty would "not represent 'constitutional finality'", though it would "provide the institutional foundations for the EU to move forward in the next decade".[31] Professor Usher's view was that, while the Lisbon Treaty "should not be regarded as set in stone, it should considerably reduce the need for frequent Treaty amendments". He tentatively suggested that, in terms of the scope of the EU's powers, "a plateau has been reached, though it is highly unlikely that there will never be a future issue which it is felt appropriate to deal with at Union level" (p 79). Professor Dashwood reminded us, though, that "there can be no further step towards a closer union without amending the Treaties" and that the Lisbon Treaty "will not remove Member States' control over such developments" (p 16).

49. Constitutional stability is a desirable characteristic. We note that the Government view the reforms that would be brought about by the Lisbon Treaty as providing a lasting settlement. We therefore hope that, if ratified, the Treaty will provide a period of stability in the institutional framework of the EU and we urge the Government to use their influence to ensure that this is the case. This, in turn, will enable the UK constitution to develop further the procedures needed to ensure that the Government are properly accountable for the exercise of their powers in the sphere of the European Union, with effective roles for the United Kingdom Parliament and the governments and legislatures of Northern Ireland, Scotland and Wales.

Defining the European Union's competences

50. From the perspective of the UK constitution, clarity about the allocation of policy and law-making powers between different spheres of government is of obvious importance. While such 'division of powers' questions are commonplace in federal systems, they have not needed to be addressed in the UK until comparatively recent decades. The modern 'multi-level' constitutional arrangements which now exist require clear demarcations of responsibility between the UK Government and the devolved administrations in Northern Ireland, Scotland and Wales, as well as between the UK as a whole and the EU.

51. The Lisbon Treaty makes a welcome attempt to set out with greater clarity the demarcations of responsibility between Member States and the EU. Professor Dashwood highlighted "the addition to Article 1 [of the Treaty on European Union] of the phrase 'on which the Member States confer competences to attain objectives they have in common'". He said that "this asserts the primacy of the Member States in two ways: they are the source of the Union's competences; and the Union exists to enable them to pursue common objectives" (p 17). Articles 4 and 5 of the Treaty on European Union set out a "principle of conferral", under which "competences not conferred upon the Union in the Treaties remain with the Member States" (Article 4(1)).[32] Those Articles also outline the principles of subsidiarity[33] (compliance with which will be 'policed' by national parliaments) and proportionality. The ECJ will, as at present, have the final say in determining the legal boundaries of the competences.

52. The Government welcomed these clarifications, telling us that "The Lisbon Treaty sets out—for the first time—definitions and lists of the Union's competences, setting out clearly the areas where [the] EU can act. The Treaty underlines that the EU can only act within the limits of the competences conferred on it by the Member States. It also recognises that competences can be transferred back to Member States. The Treaty explicitly confirms for the first time that national security remains the sole competence of Member States" (p 20).

53. Acknowledging that issues of competences were "hugely complex", Dr Anthony nonetheless told us that "the delimitation of competences within the Reform [Lisbon] Treaty marks a very definite move towards a clearer allocation of power between the EU and it[s] Member States" (p 10).

54. Professor Shaw's assessment was less favourable. She suggested that the "provisions are doubtless more concerned with sending signals containing certain symbolic messages about European integration to key national interests" (p 66). Professor Tridimas agreed that the categorisation of competences, whilst increasing transparency, would "not avoid intricate problems of interpretation" nor would it necessarily provide "bright lines between the powers of the Union and those of the Member States" (p 72).

55. Questions of distribution of power are inherently complex. In the United Kingdom, devolution and membership of the European Union have the combined consequence that the United Kingdom Government and Parliament operate in a system of multi-level governance: for practical purposes they have such powers as have not been conferred on the devolved administrations and legislatures or the European Union. With this in mind, we welcome the Lisbon Treaty's attempt to set out with greater clarity the demarcations of responsibility between Member States and the European Union. These demarcations will continue to be open to interpretation by the European Court of Justice.

56. In addition, Articles 2 to 6 of the Treaty on the Functioning of the European Union set out areas of policy in which (a) there is exclusive competence for the EU, (b) competence is shared between the EU and the Member States, and (c) EU actions may support, coordinate or supplement the actions of the Member States. Professor Dashwood said that the categories of exclusive, shared and supporting competences are "usefully defined" by the Treaty, adding that this is "by way of a clarification: the definitions reflect distinctions found in the detailed provisions of the present [Treaty Establishing the European Communities]" (p 17).

57. However, Professor Shaw argued that the statement of categories of competence "does not ultimately appear to offer the promised simplification for the benefit of citizens" because they are being introduced "without in fact changing the existing conceptual basis upon which powers are attributed and defined, under the legal basis system of the existing Treaties" and they will coexist "with the limited attempts which the Court of Justice has made, notably in the sphere of external economic action, to define a distinction between shared and exclusive competences" (pp 66-7).

58. The articulation of categories of competence in the Treaty on the Functioning of the European Union would be a useful step in clarifying the distribution of powers between the European Union and the Member States.

People's rights and responsibilities

INTRODUCTION

59. Rights and responsibilities are a key element of the UK constitution. The Lisbon Treaty would make changes relating to two of the main documents setting out people's rights: the Charter of Fundamental Rights of the European Union ('the Charter') and the European Convention on Human Rights (ECHR). We now consider the likely impact of these changes on rights and responsibilities in the UK.

60. First, Article 6 of the Treaty on European Union, as amended by the Lisbon Treaty, would make the Charter (first agreed by the governments of the Member States in December 2000) legally binding.[34] Although the 54 Articles of the Charter are not set out in the Treaty, they are declared to "have the same legal value as the Treaties" (Article 6.1). Until now the Charter has been a political document, though one referred to from time to time in the European Court of Justice (ECJ) and national courts. The Charter contains "rights" (which may be enforced by courts) and "principles" (which are factors to be taken into account by courts when interpreting legislation but which do not in and of themselves create enforceable rights).[35] Protocol 7 to the Lisbon Treaty provides for the application of the Charter to the UK and Poland.

61. Second, Article 6.2 provides that the EU "shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms" (the full title of the ECHR).

THE PRACTICAL SIGNIFICANCE OF THE CHARTER

62. As we have noted, although the Lisbon Treaty does not set out the provisions of the Charter, it would give express legal effect to it. The Government told us that "the Charter will be addressed primarily to the EU institutions who will be required to recognise the rights, freedoms and principles in the Charter. The Charter simply records existing rights which already bind Member States when they implement EU law. The Charter creates no new enforceable rights" (FCO memorandum, p 31).

63. Several of the witnesses stressed that fundamental rights in EU law were nothing new. Dr Spaventa emphasised that "fundamental rights have long been recognised to be part of the general principles" of EU law (p 67; see also Professor Chalmers p 13). She said that the "Charter does not create 'new rights', it merely codifies existing rights" and noted that it is in any case "primarily directed at the European institutions to ensure that when they legislate or take any other action they are bound by fundamental rights". It only applies to Member States when they are implementing EU law, she explained (p 68).

65. Professor Chalmers told us that there was "very little evidence" of the EU fundamental human rights law which has been enunciated by the ECJ in recent years "disrupting the British constitutional settlement in any way". And, while the Lisbon Treaty would have the effect of "enunciating a broader explicit catalogue of rights", it also contains "greater constraints than previously to limit judicial activism", not least because "Article 6(1) TEU makes clear that the Charter cannot be used to extend EU competencies". But he believed that in the future it is "likely that immigration, asylum, and extradition law will be governed fairly extensively by EU fundamental rights law and that it will also touch some aspects of family and penal law" (p 13). The "practical import" of this is, he suggests, "unclear". Because the Charter requires courts to interpret it in line with the ECHR, and the ECJ (the EU court) has tended to "slavishly follow" the case law of the European Court of Human Rights (the Council of Europe court), it is the latter court that will be influential. Professor Chalmers called into question its legitimacy: "The difficulty is therefore not the Charter but the increasing importance of the European Court of Human Rights and its unaccountability in our human rights law. I see nothing in its methods of appointment or reasoning which justifies such an elevated position" (p 13).

66. Dr Anthony told us that the Charter might affect the approach taken by judges in the UK courts: it could "enjoy an analogical force in cases concerning common law fundamental rights, rights arising under the Human Rights Act 1998, and/or those that may be found in any future Bill of Rights for Northern Ireland" (pp 9-10). Nonetheless, Professor Tridimas suggested that "the Charter is unlikely to be a major threat to national sovereignty or a vehicle for the introduction of social legislation" (p 73).

67. We conclude that the change in status of the Charter from political document to having the force of a treaty would be less of a radical step than at first it may appear. This is because the Charter is declaratory of rights already recognised as existing in law by the courts and therefore currently available to the UK citizen.

THE PROTOCOL CONCERNING THE UNITED KINGDOM AND POLAND

68. One of the Government's 'red lines' was to protect UK law from any possible consequences that might follow from the change in the Charter's legal status. One way in which the Government have sought to achieve this is by Protocol 7 on the application of the Charter in the legal systems of the UK and Poland.

69. Article 1(1) of the Protocol provides that the Charter does not extend the ability of the ECJ or any UK or Polish court to find the laws and practices of the UK or Poland inconsistent with the Charter—in the words of Professor Tridimas, "the Charter … may not expand the scope of fundamental rights jurisdiction of the ECJ or UK courts beyond the scope of application of Community law" (p 74). The Government explained that "if, despite what the Charter provisions say, someone tried to argue that the Charter creates new rights, the argument would fail: the Protocol makes it clear that the Charter does not give national or European courts any new powers to strike down or reinterpret UK law, including labour and social legislation" (p 33). In relation to Article 1(1), Dr Spaventa suggested that "this is the case regardless of the Protocol since nothing in the Charter extends the jurisdiction of the Court of Justice beyond what is provided for under the current Treaties as interpreted by the Court" (p 69). Similarly, Professor Chalmers suggested that the ECJ would "almost certainly state that [the Protocol] is otiose in the light of Article 6(1) TEU which states that the Charter does not extend Union competencies". In any case, he continued, "almost every provision of the Charter codifies other international treaties", so "if a court cannot rely on the Charter it will just use these to reach the same result" (p 13).

70. Article 1(2) of the Protocol sets out that, for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the UK except insofar as such rights are provided for in their national laws. The rights contained in Title IV are social or "solidarity" rights such as workers' rights to information and consultation, collective bargaining, fair and just working conditions, social security, health care and consumer protection. The Government explained that "This paragraph applies 'in particular' to the social and economic provisions in Title IV of the Charter. Some of those provisions contain principles rather than rights. Other provisions expressly say that they apply in accordance with national law. It follows that, as this paragraph guarantees, those articles either do not reflect any rights at all, or do no more than reflect the rights that already exist in UK law. As the words 'in particular' indicate, the same is also true of other provisions in the Charter that either contain principles rather than rights, or expressly give no rights going beyond those provided for in national law" (p 33).

71. Article 2 of the Protocol declares that to the extent that the Charter refers to national laws and practices, it shall apply to the UK and Poland only to the extent that the rights or principles it contains are recognised by the laws and practices of the UK or Poland. In relation to Article 2, Dr Spaventa explained that this "seeks to preserve the UK system of fundamental rights from the 'infiltration' of Charter rights in those areas which are recognised as falling within the Member State competence (e.g. family law, but also rules regulating the modalities for the exercise of a right such as the right to strike)" (p 70). Professor Usher told us that "references to national laws and practices only apply to the extent that they are recognised in Polish or UK law—which begs the question of what happens to national laws and practices which have evolved into general principles of EU law and therefore already have to be observed by the UK in the context of EU law" (p 79).

72. The Government's general view of the Protocol was that it "specifies what an incorporated Charter does and does not do, bearing in mind that it does not create new rights and principles but simply records those that already exist. The Protocol is intended to guarantee for the UK that the new reference to the Charter in Article 6 EU does not increase the extent to which courts applying EU law may already have regard to fundamental rights, freedoms and principles" (p 32).

73. Professor Dashwood in his evidence to the European Union Committee said that the Protocol would play a role in assisting interpretation of the Charter: "The Protocol is not an opt-out for the United Kingdom: it is an interpretative Protocol".[37] In his written evidence to us, he said that the Protocol "has been provided just in case the paper tiger, that is the Charter, should acquire teeth through an aberrant interpretation treating its provisions as capable in themselves of giving rise to enforceable rights. In that unlikely event, the United Kingdom would be able to invoke the Protocol, to resist any challenge to its law or practices" (p 16). Professor Chalmers told us that he was "very sceptical" that the Protocol would create "a differentiated position" for the UK and Poland in relation to the Charter (p 13).

74. The European Union Committee received a great deal of expert evidence on the legal effect of this Protocol.[38] They concluded that "The Protocol is not an opt-out from the Charter. The Charter will apply in the UK, even if its interpretation may be affected by the terms of the Protocol".[39]

75. We agree with the European Union Committee that Protocol 7 clarifies the application of the Charter rather than operating as an opt-out.

ACCESSION OF THE EU TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS

76. The Lisbon Treaty paves the way for the EU to become a signatory to the European Convention on Human Rights.[40] The Government said "This will make the EU directly accountable to the Council of Europe's European Court of Human Rights for the rights contained in the ECHR. It would thus reinforce harmony between the EU's legal order and the ECHR—as interpreted by the European Court of Human Rights" (p 19).

77. Dr Anthony described accession as "unremarkable" (p 10). Similarly, Dr Spaventa asserted that there "should not be any particular effect on national law deriving" from the European Union's accession to the Convention. She also noted that the Protocol "makes clear that the agreement on accession must ensure that the Union's accession does not affect the situation of the Member States in relation to the Convention, including the possibility of derogating from it and the reservations made by the Member States" (p 70).

78. In our view, the European Union's accession to the European Convention on Human Rights should have no impact on national law, and therefore no constitutional implications.

Citizenship

79. Citizenship is of fundamental constitutional importance in any political system. After amendment, Article 9 of the Treaty on European Union will provide that "Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it"; a similar provision also appears at Article 20(1) of the Treaty on the Functioning of the European Union. Professor Shaw told us that "the major difference between the EC Treaty provisions and the Lisbon Treaty provisions concerns the wording of the relationship between national citizenship and EU citizenship. This is now articulated as 'additionality' rather than the earlier formulation of 'complementarity'. The inclusion of this change was insisted upon by the Member States, in order to reinforce the point that EU citizenship can only add rights, and cannot detract from national citizenship" (p 65). Moreover, Dr Spaventa pointed out that "the 'additional' nature of Union citizenship is confirmed by the fact that Union citizenship can only be acquired through nationality of one of the Member States, and cannot be autonomously gained" (p 70).

80. The Government told us that "Given that EU citizenship does not replace, and is additional to, national citizenship, we do not see any implications for current and future trends in the concept of British citizenship and 'Britishness'. It will continue to be a matter for Member States to determine who are their citizens and who thus, on this basis, enjoy the status of EU citizens. Just as membership of the European Union is an important and valuable aspect of the political and economic identity of the United Kingdom, British citizens will continue to enjoy the complementary status, and benefits, of EU citizenship" (p 20).

81. Dr Anthony agreed that "there is … nothing to suggest that developments in EU citizenship should prevail in—or arguably even inform—ongoing debates about British citizenship and 'Britishness'" (p 10); Professor Dashwood (p 16) and Dr Spaventa (p 70) concurred.

82. There are, however, further aspects to the concept of Union citizenship. Article 10 of the Treaty on European Union will provide that "Citizens are directly represented at Union level in the European Parliament" and "Every citizen shall have the right to participate in the democratic life of the Union". Article 11 of the Treaty on European Union and Article 24 of the Treaty on the Functioning of the European Union contain what Professor Shaw termed "an important legislative power", permitting the European Parliament and Council, acting by co-decision, to adopt the provisions necessary to implement the "citizens' initiatives" which "allow citizen power, especially via the internet, to be channelled into seeking specific legislative initiatives to be put forward by the Commission" (p 65). Such citizens' initiatives require a million or more people in a "significant number of Member States" to request action. She argued that "there seems no reason to fear that an enhanced political citizenship within the European Union will have a damaging effect upon national political citizenship" (p 66). The question arises, however, as to whether the UK Government will feel it appropriate to support or oppose such citizens' initiatives (at national or EU level), and if they do, how they will be accountable to Parliament for the position they take on each such initiative.

83. We conclude that the continued existence of citizenship of the European Union in and of itself has no constitutional implications for British citizenship. Although it remains to be seen whether the new formal procedures for citizens' initiatives at European Union level will have any significant practical impact (in addition to their symbolic aspirations), they can be seen as complementing proposals contained in the Government's Governance of Britain programme for citizens' "calls for action" at local authority level and the development of online petitions on the Number 10 Downing Street website.

84. We urge the Government to clarify whether they envisage taking a formal or informal position on any such citizens' initiative, and whether this would entail making representations at the European Union level. If the Government do expect to play such a role, they must explain how they intend to keep Parliament informed and how they envisage remaining accountable to Parliament in the exercise of this function.

The United Kingdom Parliament and parliamentary supremacy

85. It was clear to us that the Lisbon Treaty would bring about changes to the role of national parliaments of Member States. We therefore asked witnesses to elaborate what these changes would be and how, in particular, they may affect the roles and responsibilities of the United Kingdom Parliament in relation to EU matters.[41] We also asked about the impact of the Lisbon Treaty on the constitutional principle of parliamentary supremacy.

86. An avowed aim of the Lisbon Treaty is to strengthen the role of national Parliaments in the governance of the EU in a variety of ways set out in Article 12 of the Treaty on European Union and summarised in Table 2. There is also a new Protocol on the role of national parliaments in the EU and a Protocol on the application of the principles of subsidiarity and proportionality.

TABLE 3

The Role of National Parliaments

Role of Parliament	Change in relation to UK	Treaty provision
Both Houses of Parliament will receive documents directly from Commission and other institutions	Currently documents are deposited by the UK Government	Article 12 of the TEU and Protocol on the role of national parliaments in the EU
Enhanced cooperation between national Parliaments and the European Parliament	Express legal basis and formalisation work currently carried out by the Conference of European Affairs Committees	Protocol on the role of national parliaments in the EU
"Early warning" scrutiny of EU proposals for breach of subsidiarity principle using "yellow and orange cards"[42]	New procedures enabling either Commons or Lords, or both, to submit reasoned opinion to Commission within 8 weeks of transmission	Article 5 of the TEU; Article 69 of the TFEU; and Protocol on the application of the principles of subsidiarity and proportionality
Expressly informed of evaluations of policies in the area of freedom, security and justice	New provision	Article 70 of the TFEU
Scrutiny of Europol's activities	New provision	Article 88 of the TFEU
Control over UK Government's use of simplified revision procedures and passerelles (see Chapter 2)	New provision	Article 48 of the TEU and other provisions & clause 6 of the bill
Notification of applications to join the EU	New provision	Article 49 of the TEU

87. Professor Dashwood told us that the revised Treaties "create real opportunities for national Parliaments, if only they are willing to grasp at them, to strengthen democratic accountability in the EU" (p 18). Professor Usher suggested that "these provisions considerably strengthen the position of national Parliaments in the EU legislative process, provided national parliaments have in place machinery to enable them to take advantage of these opportunities" (p 82). Dr Anthony said the "principal issue here appears to be how far—if at all—Parliamentary procedures should be adapted given the enhanced role to be played by national Parliaments in the EU process" (p 11).

88. However, Professor Chalmers sounded a note of caution. He warned that "the challenges have been under-estimated" in the proposal that national parliaments be given a more proactive role in the law-making process, because the "eight week period given to national parliaments is very little". He therefore suggested that "national parliaments must require the Commission to involve them in its initial pre-legislative consultations" and that "the United Kingdom parliament might consider whether it might want to move to a 'mandate' system for certain sensitive fields of EU policy-making, such as anything that touches on or near the so-called 'red lines'". Professor Chalmers also expressed pessimism about the operation of the Protocol on subsidiarity and proportionality "not because the EU Institutions will not listen to national parliaments if a sufficient number express concerns. It is because the nature of the subsidiarity debate has been misconceived, as it is based on the idea of a measurable trade off between integration and autonomy with a debate only about where the balance should be struck. It is more untidy than that. Most subsidiarity-based concerns are highly particularist in nature" (p 14).

89. We welcome the enhanced role for national parliaments proposed by the Lisbon Treaty. In order to make the most of these new opportunities, it is essential that both Houses should work together to develop complementary scrutiny procedures, particularly in respect of the role of select committees. It would also be desirable for Parliament informally to seek the earliest possible involvement in the policy-making processes at the European level.

MANDATORY OBLIGATIONS ON NATIONAL PARLIAMENTS?

90. In its November 2007 report, made before the conclusion of the Lisbon Treaty, the House of Commons European Scrutiny Committee considered the question of whether the text of the draft treaty would impose legal obligations on national parliaments of Member States. They expressed continuing concern that provisions on the role of national parliaments "were still cast in terms in which a legal obligation can be inferred" and expressed the view that "given its constitutional significance, this is not an issue where any ambiguity is acceptable".[43] As the House of Lords European Union Committee recounted in their recent report, the English-language version of the Treaty has been altered to remove peremptory "shalls" from two Articles.[44] On that basis, the Committee was able to "regard it as settled that the Lisbon Treaty places no obligations on national parliaments".[45]

91. We agree with the House of Lords European Union Committee that the Treaty of Lisbon does not subject the United Kingdom Parliament to legal duties.

PARLIAMENTARY SOVEREIGNTY

92. We now consider whether the Lisbon Treaty would change the relationship between EU law and the principle of parliamentary sovereignty. Like the current treaties, the Lisbon Treaty contains no express provision about the principle, enunciated by the ECJ since 1963, that European law takes priority over any inconsistent national law. Under this principle, any national court or tribunal (from a bench of lay magistrates to the Appellate Committee of the House of Lords) must immediately set aside any statutory provision or other rule of national law which is determined to be incompatible with EU law. However, Declaration 17 appended to the Lisbon Treaty does state that "in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law". Dr Anthony commented, though, that "the questionable legal status of such Declarations may mean that the doctrine can only ever continue to lack an agreed basis" (p 11).

93. The Government told us that the principle of the primacy of EU law—whether formally articulated or not—does not have implications for parliamentary sovereignty:

"Parliament exercised its sovereignty in passing the European Communities Act 1972 and has continued to do so in passing the legislation necessary to ratify subsequent EU Treaties. The UK Parliament could repeal the European Communities Act 1972 at any time. The consequence of such repeal is that the United Kingdom would not be able to comply with its international and EU obligations and would have to withdraw from the European Union. The Lisbon Treaty does not change that and indeed for the first time includes a provision explicitly confirming Member States' right to withdraw from the European Union" (p 21).

94. Dr Anthony told us that it "is highly unlikely that the new Treaty will add anything to debates on the effects of EU membership" on parliamentary sovereignty (p 11). Professor Chalmers agreed (p 14), as did Professor Dashwood who explained that primacy of European Union law "remains a principle developed in the case law of the ECJ" (p 17). We agree with this analysis.

95. We conclude that the Lisbon Treaty would make no alteration to the current relationship between the principles of primacy of European Union law and parliamentary sovereignty. The introduction of a provision explicitly confirming Member States' right to withdraw from the European Union underlines the point that the United Kingdom only remains bound by European Union law as long as Parliament chooses to remain in the Union.

Nations and regions

96. We now consider the Lisbon Treaty's constitutional implications for the governments and legislatures of Scotland, Wales and Northern Ireland and their relations with the UK Government and Parliament.

97. The Government believed that little would change under the Lisbon Treaty:

"The role of the Devolved Administrations in relation to EU matters—and the current arrangements governing the UK Government's relationship and engagement with the Devolved Administrations—will be unchanged by the Lisbon Treaty. The Memorandum of Understanding between UK and DA Ministers, including the Concordat on Co-ordination of European Union Policy Issues, remains in force. The Lisbon Treaty also includes a new provision, Article 3A(2) [now Article 4 of the Treaty on European Union], explicitly stating that the Union must respect each Member State's national identities inherent in their political and constitutional structures and including regional and local self-government. The Protocol on Subsidiarity and Proportionality … notes that it is for national Parliaments to consult, where appropriate, regional parliaments with legislative powers in the application of Article 6 of that Protocol". (p 20)

98. However, it is important not to overlook the need for ongoing consultation between the UK Government and the devolved administration on relevant EU matters.

RELATIONS BETWEEN THE UK GOVERNMENT AND THE DEVOLVED ADMINISTRATIONS ON EU MATTERS

99. In our January 2003 report Devolution: Inter-Institutional Relations in the United Kingdom we noted that, as of December 2002, "given that relations with the EU are not devolved and that the devolved administrations are affected significantly by EU law, the adaptation of the devolved governments to the process of EU law making has been remarkable for being less problematic than might have been expected". We added that "the longer term problem, when there is not the goodwill deriving from the same party dominating inter-institutional relations, can only be addressed in a UK context".[46]

100. We returned to the issue in our March 2006 report on the Government of Wales Bill[47] especially in relation to the Joint Ministerial Committee (the JMC, comprising ministers of the UK Government and the devolved administrations), which was established under a Memorandum of Understanding or "concordat". We drew attention to the fact that "the Memorandum also provides for 'functional' meeting of the JMC with relevant Ministers gathering to discuss policy areas (currently specified as Health, the Knowledge Economy, Poverty and Europe). Of these four, only the JMC on Europe meets regularly (though there is no public notification of the dates, attendance or agendas). There was no plenary meeting of the JMC during 2003, 2004 or 2005".[48] We concluded by stating that we "continue to be concerned about the dormant condition of the JMC arrangements. It is important for the long-term future of devolution for the formal machinery of inter-governmental relations to be kept in good working order".[49]

101. We have since ascertained that the JMC has still not met in plenary session since 2002, although there is an intention within Government to revive the plenary meetings. The JMC on Europe—the most relevant part of the JMC in this context—continues to meet three or four times each year, usually around two weeks before the European Councils. Whilst we welcome the regular meetings of this part of the JMC, we are dismayed at how difficult it was for us to find out these statistics, and at the continued lack of publicly-available information on the JMC.

102. On the specific issue of the Lisbon Treaty, we highlight the concerns expressed by the European and External Relations Committee of the Scottish Parliament that "neither the Explanatory Memorandum nor the White Paper [Cm 7174, setting out the United Kingdom Government's position on the Reform Treaty] refer to consultation with the devolved administrations or respective ministerial responsibility for these devolved matters covered by the Treaty. In particular, there does not appear to be any reference to a separate Scottish legal system or that aspects of Justice and Home Affairs are devolved".[50]

103. There is a clear need to develop and enhance cooperation between the United Kingdom Government and the devolved administrations on those aspects of European Union policy that are devolved or have implications for the devolution settlement. Frequent meetings of the Joint Ministerial Committee (JMC) on Europe are essential in this regard. Moreover, cooperation between the different administrations ought to be undertaken in as open and transparent manner as possible. We therefore recommend that information relating to meetings of the JMC on Europe should be made much more widely available.

RELATIONS BETWEEN THE UK PARLIAMENT AND DEVOLVED LEGISLATURES ON EU MATTERS

104. It is important to consider not only the relationships between the different administrations, but also the levels of cooperation on EU matters between the UK Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.

105. Dr Anthony told us that "more formal co-operation among the legislatures would be desirable insofar as this would complement the 'national' Parliament's role in the broader EU process where that process has implications for the work of the devolved institutions" (p 11). A similar view was taken by Mr Andrew Duff MEP when he gave evidence to the Scottish Parliament European and External Relations Committee in February 2008. He argued that "A formal agreement between the Edinburgh and Westminster Parliaments is now essential. Among the 26 other member states, plenty of examples exist of agreements between regional Parliaments with legislative powers and their national Parliaments"; he conceded that not all practices in other Member States were good.[51]

106. On a more specific point, cooperation between the legislatures would be particularly desirable in respect of the Lisbon Treaty Protocol on the Application of the Principles of Subsidiary and Proportionality, which suggests that national parliaments should consult regional parliaments "where appropriate" as part of the 'yellow card' procedure for policing the subsidiarity principle.

107. There is a clear need for cooperation between the United Kingdom Parliament and the devolved legislatures on European Union matters, particularly the 'yellow card' procedure for policing the principle of subsidiarity. We therefore suggest that the respective legislatures give further consideration to a formal mechanism for improved cooperation on these issues.

The Area of Freedom, Security and Justice

108. Several witnesses highlighted Title V of the Treaty on the Functioning of the European Union, the "area of freedom, security and justice", as being especially relevant to the constitution and constitutional principles and it is on this which we focus.[52] Under the current EU Treaties, the provisions on EU policies concerning justice and home affairs are divided between the Treaty on European Union, which covers police and judicial cooperation in criminal matters (the third pillar), and the Treaty establishing the European Community, which covers migration, visas, asylum and judicial cooperation in civil matters (part of the first pillar). Measures adopted in the third pillar must be agreed by unanimity in the Council; every Member State has a veto. The measures in the first pillar are generally adopted by Qualified Majority. But a Protocol[53] provides that a measure does not apply to the UK (or Ireland) unless they decide to "opt in" to it, either at the early stage of the negotiation of the measure or after it has been adopted.[54]

109. The merging of the third pillar with the first by the Treaty of Lisbon would result in Qualified Majority voting becoming the general rule for measures in what will be called the Area of Freedom, Security and Justice. But the whole of that area of EU policy would be subject to the opt-in Protocol, as amended. The UK will be able to decide, on a case-by-case basis, whether to opt in to a proposed measure in that area. Apart from any repercussions at a policy level, there may be direct consequences of not opting in. Where a UK decision not to opt in to a measure which amends one which does apply to the UK would make the original measure "inoperable", the other member States may decide to exclude the UK from the original measure. If such exclusion gives rise directly to costs, the UK must bear such costs as are "necessarily and unavoidably" incurred.

110. Transitional arrangements, for five years, are made under the Treaty in relation to the powers of the Commission and the jurisdiction of the EU Courts concerning existing third pillar measures. To the extent that those measures are not amended or repealed under the procedures put in place by the Lisbon Treaty, the UK will have to decide before the end of the five years after the Treaty comes into force whether to opt out of the measures en bloc, though it may seek to opt back in to specific measures. The UK may have to bear costs necessarily and unavoidably incurred in consequence of opting out. A detailed analysis of the opt-in arrangements can be found in the report of the European Union Committee.[55]

111. Notwithstanding the 'opt-in' arrangements for the UK, the European Union Committee's report concluded that bringing criminal law and policing within Title V of the Treaty on the Functioning of the European Union "is clearly a significant change".[56] Similarly, Dr Mitsilegas described this reform as "fundamental constitutional change" and predicted "a fresh impetus for a number of new, extensive legislative initiatives in EU criminal law" (p 60). In practical terms, this means that in future the European Union will have competence to adopt legislation in the fields of criminal law and procedure and policing using qualified majority voting in the Council and that such legislative proposals will be subject to greater scrutiny by the European Parliament than is currently the case. The ECJ will acquire corresponding new jurisdiction. Inevitably, views about the desirability of these developments are sharply divergent.[57]

112. From the UK's point of view, the House of Commons European Scrutiny Committee and the House of Lords European Union Committee have both emphasised the importance of ensuring that there is systematic parliamentary scrutiny of how the Government decides to use the "opt-ins" and "opt-outs" it has secured.[58] The European Union Committee has also drawn attention to the importance of the Government maintaining "a proper balance between liberty and security" in exercising their powers.[59]

113. Title V of the Treaty on the Functioning of the European Union and the protocols associated with it create a complex set of arrangements which inevitably have constitutional implications. In practice, much will depend on how the Government choose to exercise the opt-ins they have negotiated. We conclude that the importance of how the opt-ins and opt-outs are used is such that Parliament must be fully involved in their use. We therefore recommend that the European Union (Amendment) Bill be amended so as to require the Government to obtain approval from both Houses of Parliament before using opt-ins or opt-outs in any policy area. This would be consistent with the Bill's policy to require parliamentary approval of the use of the Simplified Revision Procedure and passerelles.

Courts and the judiciary

114. The Lisbon Treaty renames the courts of the EU collectively as the Court of Justice of the European Union and introduces a number of changes to its jurisdiction and procedures. Against any yardstick, the Court of Justice is an institution of constitutional importance.

115. In their evidence to us, the Government explained in some detail the changes in the European Court of Justice's (ECJ) jurisdiction that would be brought about by the Lisbon Treaty. They concluded by saying "The Government welcomes the … changes in reinforcing the existing role of the Court in upholding the rule of law within the European Union. They do not however alter the current relationship between the European Union and the United Kingdom, or between the ECJ and UK courts, and do not therefore impact on the Constitution of the United Kingdom" (p 22).

116. Several of the academic experts drew attention to the role of the ECJ in determining the direction and speed of some types of future developments in the EU. For example, Professor Shaw told us that "The precise extent to which the Treaty of Lisbon will accelerate a greater generalisation of the doctrines which underpinned the constitutionalised (EC) Treaty will depend largely upon the happenstance of references for preliminary rulings coming before the Court of Justice from national courts in relevant cases" (p 64).

117. Dr Anthony also drew attention to the broadening of the ECJ's jurisdiction. It would, he said, "have jurisdiction in respect of all matters save those concerning common foreign and security policy" (p 11; see also Professor Tridimas p 77). He argued that this "need not per se have implications for the internal workings of the UK Constitution, as its focus is on the balance of powers at the supranational level and on strengthening the rule of law", though he also noted that it "remains to be seen whether the ECJ will return to a more activist role in developing EU law, as that may result in a body of case law that crosses boundaries within the EU's existing and proposed structures" (pp 11-12).

118. Professor Chalmers added that "The central changes to the European Court of Justice's jurisdiction are that policing and judicial cooperation in criminal matters have been incorporated into the structures associated with the EC Treaty and that decisions of the European Council will now be subject to review by it". He told us that that in this field, the Court's judgments "will not be binding on the United Kingdom insofar as they relate to instruments into which it has not opted in" but "the potential for cases within the field of area of freedom, security and justice to take a high proportion of the Court of Justice's docket is considerable, particularly as the preliminary reference procedure has been amended to give preference to references where one party is in detention. This will affect the United Kingdom insofar as the type of work done by an institution invariably affects its nature and this work sidelines other references" (p 15).

119. Dr Mitsilegas also highlighted the changes to the Court's role in relation to criminal matters, which he viewed as "enabling a meaningful dialogue between national courts and the ECJ on matters which, as has been demonstrated by a number of cases (in particular those relating to the European Arrest Warrant), may have fundamental constitutional implications for both the Union and Member States" (p 60).

120. Professor Tridimas explained that "Article 276 [of the Treaty on the Functioning of the European Union] provides that … the ECJ has no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement agencies of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security". He argued that while national courts "have the final say", "since these areas fall within the scope of Union law, in exercising their power of judicial review, national courts must do so applying the principles of Community law, e.g. the principle of proportionality and respect for fundamental rights as recognised by Community law. In other words, the limitation of Article 276 [of the Treaty on the Functioning of the European Union] is only jurisdictional and not substantive in scope" (p 78).

121. Professor Dashwood was "not aware of changes envisaged by the [Lisbon Treaty] that would significantly alter the existing relationship between UK courts and the European judicature, which has always been a model of cooperation and mutual respect" (p 18).

122. Many of the issues we have examined in this report—including the competences of the EU, the interpretation and application of the Charter, and the detailed working-out of the consequences of the UK's opt-outs and opt-ins (particularly in relation to the area of freedom, security and justice)—will be shaped by the European Court of Justice's adjudications in the years to come. Insofar as the European Union is an organisation based on the rule of law, there can be no complaint that this is so, even if from time to time the developments introduced have taken Member States by surprise.

123. In order for Parliament to be fully informed of the European Court of Justice's interpretation and application of the Lisbon Treaty provisions, we recommend that the Government lay before Parliament an annual report on their assessment of the impact of the Court's rulings on the United Kingdom. In interpreting and applying the Charter, the European Court of Justice will increasingly refer to the case law of the European Court of Human Rights and so the relevant rulings of that Court ought also to be covered in the Government's annual report.

124. The provision of such an annual report would complement Parliament's efforts in recent years to seek greater information about the operation of the United Kingdom courts through, for example, the requirement of the Constitutional Reform Act 2005 for the Supreme Court to make an annual report and the Lord Chief Justice's proposed regular reports on the courts system in England and Wales.