Memorandum by Professor Damian Chalmers
(London School of Economics and Political Science)
1. OVERALL ASSESSMENT:
The overall scale and character of the changes
that will be brought about by the Treaty. Whether the Treaty is
likely to be a lasting settlement or should be seen as an interim
measure.
Treaty reforms can be measured along three parameters—the
new symbols and icons they introduce; the new powers, capacities
and competencies they provide for the Union (eg what the Union
does); and institutional reform (how it does what it does). With
the exception of the Treaty of Nice, the Treaty of Lisbon is the
most modest of all the treaty reforms. To take the three parameters
in turn:
— The iconography of the Constitutional
Treaty has been almost completely removed;
— With one exception, there are no
new significant new powers conferred on the Union. It is arguable
that Article 11 TFEU (intellectual property) and Article 194(1)(a)
TFEU (energy supply) confer powers that may not be presently there,
but even this is contestable. The abolition of the pillar system
grants greater supranational powers over policing and judicial
cooperation in criminal matters. This is important but the United
Kingdom can choose to exercise its opt-in here. The only significant
exception is Article 352 TFEU, the successor to Article 308 EC.
It has a wider remit as it acts as a flexibility provision to
the Union now and not the EC. This is particular significant given
the frequent usage of Article 308 EC, about 30 time pa.
— In terms of institutional reform,
the growth of Qualified Majority Voting has been greater over-played.
The policies where its use has been extended allow for UK non-participation,
notably Economic and Monetary Union and Freedom, Security and
Justice. The main areas of law-making affecting the United Kingdom
are freedom of movement for workers (social security arrangements);
freedom of establishment; humanitarian aid; implementing rules
for transport; implementation of the Common Commercial Policy.
This is very minor compared to previous treaties. More significant
is the growth of the co-decision procedure and the assent procedure
into significant fields. At the moment consultation is still the
most invoked procedure (364 times in 2004-2006 compared with 320
for codecision). There are no statistics but agriculture and Article
308 EC probably account for nearly half of this. One is thus probably
moving to a world therefore where Parliament can veto or assent
to over 80% of all EU legislation, rather than about 45%, as at
the moment. The significance of this is not clear, as since the
2004 enlargements a new state of play has emerged in the co-decision
procedure whereby almost everything is agreed after first reading
(prior to 2004, the norm was after second reading). This disadvantages
the European Parliament as it does not have the resources to mobilise
itself to the same extent as national administrators at that stage
and the fluidity of the process in the trialogue often trump its
subsequent procedural rights (on Parliament concerns see http://euobserver.com/9/25612).
It is too speculative to determine whether this
is a definitive settlement or not. I do not anticipate, notwithstanding
the murmurings of a few, that there will be any further treaty
reforms for a while. The central ones were accompanied by a big
project—the single market, EMU, the area of freedom, security
and justice and constitutionalism. I see no new big idea on the
horizon with the possible exception of Turkish membership.
2. PEOPLE'S
RIGHTS AND
RESPONSIBILITIES:
The likely impact of the Treaty on the fundamental
rights of people in the United Kingdom and how those rights are
enforced. How the Charter of Fundamental Rights will relate to
other rights instruments (including the European Convention on
Human Rights, the Human Rights Act 1998, the proposed Bill of
Rights for Northern Ireland and the proposed Bill of Rights and
Duties announced as part of the "Governance of Britain"
agenda). The significance, for the United Kingdom constitution,
of Protocol 7 on the application of the Charter of Fundamental
Rights to Poland and the United Kingdom. The significance for
the United Kingdom of the EU's accession to the European Convention
on Human Rights.
EU fundamental rights law has bound national
governments and national legislators since the beginning of the
1990s with the Wachauf (Case 5/88 Wachauf v Germany
[1989] ECR 2609) and ERT (Case C-260/89 ERT v DEP
[1991] ECR I-2925) judgments. There is very little evidence of
its disrupting the British constitutional settlement in any way,
and when I researched this last year I could find only one judgment,
the Akrich judgment Case C-109/01 Secretary of State
for the Home Department v Akrich [2003] ECR I-9607) which
seemed to have any implications for United Kingdom law. With regard
to the future, there seem to by two possible developments. On
the one hand, the provisions of the Lisbon Treaty, whilst enunciating
a broader explicit catalogue of rights, do have greater constraints
than previously to limit judicial activism. Article 6(1) TEU makes
clear that the Charter cannot be used to extend EU competencies.
The Charter also provides that its provisions will bind Member
States implementing Union law (article 51) rather than the current
test of "within the field" of EC law, although the Explanatory
Memorandum of the Secretariat does refer to the tests being synonymous.
There is furthermore Declaration 53 to the Treaty of Lisbon by
the Czech Government which states that the Charter cannot cover
non-implementing measures adopted independently by Member States.
On the other hand, Union law covers a wider remit than traditional
applications of EC law. 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. This has not yet happened if one looks
at British case law.
The practical import of this for the United
Kingdom is unclear. The reason for this is that the same standard
binds the Human Rights Act and the EU Charter on Fundamental Rights,
and that is the European Convention on Human Rights. Article 52(3)
of the Charter requires it to be interpreted in line with the
Convention, and where the Court of Justice has recognised the
Charter, it has, in my view, slavishly followed the case law of
the European Court of Human Rights or provisions of the Convention
in its interpretation of the substance of the right (Case C-540/03
Parliament v Council [2006] ECR I-5769; Case C-432/05 Unibet
v Justitiekanslern, Judgment of 13 March 2007; Case C-275/06
Promusciae, Judgment of 29 January 2008). 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.
I am very sceptical of the formal legal effects
of Protocol 7 on the application of the Charter of Fundamental
Rights to Poland and the United Kingdom in creating a differentiated
position for these States. Article 1 states that the Charter does
not extend the power of the Court of Justice to strike down national
measures in these States. The Court of Justice would, first, almost
certainly state that provision is otiose in the light of Article
6(1) TEU which states that the Charter does not extend Union competencies.
Secondly, insofar as the provision is concerned with judicial
activism, the Court of Justice would resist an image of itself
as extending rather than interpreting provisions. Finally, almost
every provision of the Charter codifies other international treaties.
If a court cannot rely on the Charter it will just use these to
reach the same result. With regard to the stipulation in article
1(2) of the Protocol concerning the non-justiciability of Title
IV rights except insofar as they are provided in national law,
it is true that this provision might stop the Court of Justice
for setting up these rights as self-standing points of judicial
review. Yet there is nothing to indicate it will do that. In the
recent ITWF judgment (Case C-438/05 ITWF v Viking, Judgment
of 11 December 2007), it noted therefore the right to strike as
a fundamental right, but stated it was one which could be subject
to certain restrictions, most notably it was to be protected in
accordance with Community and national law.
3. POWERS AND
NATIONAL SOVEREIGNTY:
The manner in which the Treaty confers and delimits
the competences of the EU. The extent to which the conferral of
competences represents a change from current arrangements. The
likely impact of the Treaty on the capacity of the British Government
to control policy in respect of the following: labour and social
legislation, an independent foreign and defence policy, protection
of the UK's common law system and police and judicial processes,
protection of the UK's tax and social security system, and national
security (the so-called "red lines").
There has not been a change in any fundamental
sense (see my comments above). All the red lines have been respected
and in some cases reinforced. No new competence has been added
in the field of labour and social legislation, and Article 6(1)
TEU requires that Charter rights can not be used a justification
to establish a new resettlement here. The TEU indicates that the
Union is to have no legislative competencies in the field of foreign
and security policy, and it is unclear, as a consequence, how
it could have therefore a treaty-making power in what is now the
second pillar. To be sure, new organisational processes will develop
around the High Representative, but is that so different from
NATO or the WEU? The opt-in with regard to freedom, security and
justice is, in my view, watertight, and those who argue the contrary
view have to explain why they have not been able to provide a
single example from practice under Title IV EC Treaty which is
the model for the opt-in. With regard to national security, the
Treaty of Lisbon added a new important proviso in the last sentence
of Article 4(2) TEU that it is to be the exclusive responsibility
of Member States. Tax and social security have to be treated differently.
On tax, the United Kingdom Government has a veto over all the
central provisions. It is to be noted that the veto is exercised
rarely, and that EC law governs a significant part of our law,
most notably in the field of VAT. On social security, the remit
of EU law is more peripheral, and I do not believe it touches
on significant parts of social security. There is provision for
QMV here, but there is also the new brake provision which should
allow the British Government to put its foot down if any significant
measure were to be proposed.
4. OUR NATIONAL
PARLIAMENT:
The likely impact of the Treaty on the role of
the United Kingdom Parliament in relation to EU matters. Whether
changes ought to be made within the United Kingdom on the role
and powers of Parliament in relation to EU matters. How the principle
of parliamentary sovereignty is affected by the Treaty.
Nothing in the Treaty significantly changes
the relationship between the supremacy of EC law and Parliamentary
sovereignty, and my understanding of the relationship is that
it will continue to be conditioned by the Factortame case
law. With regard to the position of the United Kingdom, Article
12 TEU and the Protocols on the role of national Parliaments in
the European Union and that on the application of the principles
of subsidiarity and proportionality evince an intention for national
parliaments to have a more proactive role in the law-making process
and to be more active guardians of the subsidiarity principle.
With regard to the former, I think the challenges
have been under-estimated. The eight week period given to national
parliaments is very little when one remembers that most legislation
is adopted at first reading so that it is essentially eight weeks
between notification and the measure being adopted, incidentally
the same length of time as for private parties under the Commission's
pre-legislative consultation responsibilities. It strikes me as
insufficient. There are two ways of meeting this challenge, in
my view.
First, national parliaments must require the
Commission to involve them in its initial pre-legislative consultations
(eg before the formal proposal) and it must, in particular, pass
on to them its impact assessments for comments. This would extend
the time frame, but, more crucially, would national parliaments
to be more closely associated with the policy-formulation and
agenda-setting. Secondly, 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".
If the British Government were serious about respecting these,
putting in place this mechanism would maintain a credibility about
its commitment to them. Both these reforms would, of course, require
additional resources.
I am pessimistic about the Protocol on the principles
of subsidiarity and proportionality. This is 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. They relate to a particular law, practice or institution
that has especial resonance for that Member State (eg the Reinheitsgebot,
snus, Imperial weights and measures). It is very difficult for
a member state to make alliances with other member states in such
circumstances as the latter are usually bemused about the fuss.
The best to hope for is a plea for exceptionalism rather than
that there should be no Union measure.
5. COURTS AND
THE JUDICIARY:
The extent to which the powers of the European
Court of Justice, and other judicial powers, are changed by the
Treaty and the likely impact of any such changes on the United
Kingdom constitution. The implications of the Treaty for the constitutional
principle of the rule of law.
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. With regard to the
first point, it is worth observing that it already has a limited
jurisdiction by virtue of Article 35 TEU, and that its judgments
will not be binding on the United Kingdom insofar as they relate
to instruments into which it has not opted-in. That said, 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. With
regard to the second point, the central vehicle for challenging
acts of the European Council is through challenges by the Commission,
Parliament or individual member States under Article 263(2) TEU.
One would expect this to be quite rare, and the Court to exercise
considerable caution here. The idea of an act unanimously agreed
by 27 Heads of State being struck down is an unusual and highly
powerful. It is certainly a victory for the rule of law.
Insofar as the question is raised about the
implications for the rule of law, I have to say I am confused
by this. In European Union law, it is rarely a choice between
the rule of law or not but rather between two systems of law both
of which operate under the principle of the rule of law. Other
than the point in the preceding paragraph, I see no further implications
for the rule of law in the Treaty of Lisbon.
February 2008
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