House of Lords - Constitution

Select Committee on Constitution Written Evidence

Memorandum by Dr Gordon Anthony, School of Law, Queen's University, Belfast

INTRODUCTION

1. This paper offers a short analysis of the implications that the EU Reform Treaty may have for the UK Constitution. Its central point is that there are very few direct implications for the domestic Constitution, largely because EU law has long adopted an essentially "neutral" position in respect of the internal constitutional arrangements of its Member States[1] (which position is retained under the Reform Treaty[2]). On the other hand, it will be suggested that there are some indirect implications that may follow from ratification of the Treaty and that these are not without importance for UK law. These relate primarily to the issues of fundamental rights and the role of the "national" Parliament in the EU decision-making process.

2. The paper takes it structure from the questions listed in the Constitution Committee's original "Call for Evidence". It also refers throughout to the Treaty Article numbers that are used in the consolidated version of the Treaty that is available on the Foreign and Commonwealth Office's website.[3]

OVERALL ASSESSMENT

3. The Reform Treaty appears to have three principal objectives, viz (1) to make the EU more democratic and efficient; (2) to ensure that the EU safeguards rights and values and related notions of freedom, solidarity, and security; and (3) to enable the EU to play an increasingly effective role on the global stage.[4] To this end, the Treaty contains a number of important institutional developments that will reshape, in part, the "political" face of the EU. These include, most notably, the creation of the position of a "permanent" President of the European Council.[5]

4. It is clear that such developments will mark a further maturation of the EU's institutional forms and processes. However, it is equally clear that the resulting institutional forms should not be regarded as final, or as key to any lasting settlement. Hence future amendment of the Treaties remains possible under Article 48 TEU; and the Treaty now also provides, for the first time, for the possibility of Member State withdrawal from the EU.[6]

PEOPLE'S RIGHTS AND RESPONSIBILITIES

5. The most important parts of the Treaty as relate to rights and responsibilities concern (1) the giving of legal effect to the Charter of Fundamental Rights of the European Union[7] and (2) the EU's future accession to the European Convention on Human Rights.[8] The significance of (1) for the UK is, of course, greatly reduced by the Protocol in respect of the UK and Poland, which states that "The Charter does not extend the ability of the [ECJ], or any court or tribunal of [the UK], to find that the laws, regulations, or administrative provisions, practices or action of [the UK] are inconsistent with the fundamental rights, freedoms and principles it reaffirms". However, while this will clearly limit the justiciability of Charter rights in UK courts, it might still be said that the Charter will have an indirect influence on the UK Constitution. UK courts have, for instance, previously had regard for unincorporated international law when developing common law fundamental rights standards[9], hearing cases concerned with the reach of the ECHR under the Human Rights Act 1998[10], mapping the lawfulness of executive discretion[11], and determining more general matters of public policy.[12] While House of Lords authority would thus entail that the Charter cannot be argued directly in proceedings[13], it may still 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.[14]

6. In terms of (2)—EU accession to the ECHR—it is axiomatic that any resulting body of Strasbourg case law will become a part of UK municipal law under section 2 of the Human Rights Act 1998 (albeit that the courts do not regard ECHR case law as a template to be applied in all domestic disputes[15]). In many cases, the corresponding principles of human rights law will likely be little different from those developed in respect of State obligations, and accession may for that reason be regarded as unremarkable. Nevertheless, it might also be said that accession could result in legal standards interacting in a manner that transcends UK government preferences in respect of the Reform Treaty. The point here is simply that the ECtHR has already referred to the Charter of Fundamental Rights of the European Union when delimiting the content of some rights under the ECHR[16], which approach is consistent with the ECtHR's more general willingness to draw inspiration from other international standards.[17] Consequently, while EU accession will not (of course) mean that the ECtHR will gauge EU actions and inaction with first reference to the Charter, challenges may lead to an increased consideration of the relevance of Charter standards vis-a"-vis those of the ECHR (which is regarded as a "living instrument"[18]). Under those circumstances, UK courts may subsequently "take into account" a body of Strasbourg case law that will allow the Charter to have a further influence on the domestic Constitution.

CITIZENSHIP

7. EU citizenship, as originally conceived, was intended to complement, rather than replace, national citizenship.[19] While the content of EU citizenship has been developed under the Reform Treaty, Article 9 TEU (re)states that "Citizenship of the Union shall be additional to national citizenship and shall not replace it".[20] Cast in these terms, there is thus nothing to suggest that developments in EU citizenship should prevail in—or arguably even inform—ongoing debates about British citizenship and "Britishness".

POWERS AND NATIONAL SOVEREIGNTY

8. The issue of competences is hugely complex and is beyond the scope of a paper of this kind.[21] It can, however, be said that the delimitation of competences within the Reform Treaty marks a very definite move towards a clearer allocation of power between the EU and it Member States (the EU's powers being based upon the principle of "conferral" and constrained by the principles of subsidiarity and proportionality[22]). Moreover, the inclusion of the UK government's "red lines" would appear to have safeguarded, or closed-off, particular areas of UK national interest. This, of course, is at one with the more general development of a "multi-speed" Europe since, most obviously, Maastricht.[23]

9. One related point that can be addressed under this heading concerns the primacy of EU law. Declaration 17 that is appended to the Treaty of Lisbon states 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". This corresponds with the long-held opinion of the ECJ[24], although it does not address the competing normative perspectives that may be held by Member State courts. For instance, several of those courts have previously contested the very constitutional basis for the ascription of primacy to EU law[25], and UK courts have more recently posited that primacy in the UK domestic order follows not from the demands of EU law but rather from the invention of the common law.[26] Primacy may therefore have been reasserted by a Declaration in the Reform Treaty, but the questionable legal status of such Declarations may mean that the doctrine can only ever continue to lack an agreed basis.[27]

OUR NATIONS AND REGIONS

10. It has been suggested above that EU law adopts an essentially neutral approach to questions of the internal constitutional balance of Member States. That approach has been retained under the Reform Treaty[28], and there is thus no reason to anticipate that EU law qua EU law will impact upon the constituent parts of the UK.

11. On the other hand, it is also true that the UK's devolution settlement has long sought to accommodate the realities of EU membership and its decision-making processes. At the level of the devolved administrations and participation in the Council, co-operation between the central and devolved governments has thus taken form around Concordats that have addressed issues of representation, the flow of information, and liability for breaches of EU law.[29] While it might be questioned whether those Concordats work effectively and/or are appropriate to the UK's current constitutional structures[30], such questions remain essentially internal to the UK. The Reform Treaty does not impact directly upon them.

OUR NATIONAL PARLIAMENT

12. 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.[31] This, again, is a complex issue that would require a much fuller analysis than is possible here.[32] However, one point that might be made—and which complements the above—concerns the relationship between the national Parliament and its devolved counterparts. While the above-mentioned Concordats already pursue close co-operation at the executive level, links between Parliamentary committees and the like are less well-established (albeit that EU law matters can be discussed by representatives in, for instance, the forum provided by the British-Irish Council[33]). It may therefore be 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. However, should such increased co-operation be forthcoming it is to be emphasised again that this would be an indirect consequence of the Reform Treaty. It would not be required by EU law itself.

13. In terms of any implications for the doctrine of Parliamentary sovereignty—which issue is listed in the "Call for Evidence"—it is highly unlikely that the new Treaty will add anything to debates on the effects of EU membership.[34] Those debates have long centred on the normative justification for the existing limitations on Parliament's powers, and the courts have recently explained that any limitations follow from the common law's reading of the European Communities Act 1972 rather than from the demands of EU law itself.[35] It is, in the result, unlikely that domestic debate will need to progress much beyond this point, particularly as primacy has been reasserted in the form of a Declaration (see paragraph [9]).

COURTS AND THE JUDICIARY

14. It is apparent from the Reform Treaty that the ECJ—to be renamed the Court of Justice of the European Union[36]—will have jurisdiction in respect of all matters save those concerning common foreign and security policy.[37] This broadening of its jurisdiction 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. On the other hand, 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. The point may be particularly true of the out-workings of the new Treaty provisions on competence.

LEGAL PERSONALITY

15. Much of the Treaty is regarded as consolidating principle and practice that was already prevalent in the EU, and the ascription of legal personality to the EU[38] is consistent with that.[39] This, in turn, sounds more on the role of the EU on the global stage, and it is difficult to identify any direct implications for the UK Constitution.

February 2008

1 See A Evans, "Regionalist Challenges to the EU Decision-Making System" (2000) 6 EPL 377. Back

2 Art 4 TEU reads: "1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States. 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State." (Emphasis added). Back

3 http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf Back

4 See http://europa.eu/lisbon_treaty/glance/index_en.htm Back

5 Art 15 TEU and Declaration 6. Back

6 Art 50 TEU, as read with Arts 218(3) & 238(3)(b) TFEU. They can also apply to rejoin: Arts 49 & 50 TEU. Back

7 Art 6(1) TEU. For the Charter see http://www.europarl.europa.eu/charter/default_en.htm Back

8 Art 6(2) TEU. Back

9 Attorney-General v Guardian Newspapers Ltd (No. 2) [1988] 3 All ER 545, 660 (Lord Goff). Back

10 A & Ors v Secretary of State for the Home Department [2005] 2 AC 68. Back

11 R v Secretary of State for the Home Department, ex p Norney [1995] Admin LR 861, 871 (Dyson J). Back