Select Committee on Constitution Written Evidence

Memorandum by Professor A. A. Dashwood, University of Cambridge

  I shall respond to the questions in order, while dealing with some of them only briefly. The numbering of Articles is that found in the text signed on 13 December 2007. The Treaty establishing a Constitution for Europe will be referred to (where occasionally relevant) as "the Constitutional Treaty".


 (a)   The Treaty and Union structure

  1.  The Treaty of Lisbon (TL) will reorganise the existing Treaty on European Union (TEU) and EC Treaty (to be renamed "Treaty on the Functioning of the European Union" or TFEU). The evident intention is to place within the amended TEU the provisions that define the essential character of the EU, while consigning to the TFEU the legal bases for concrete policies, as well as more detailed institutional and procedural provisions. This may be seen as contributing to the transparency of the Union's primary law. However, the symmetry of the design is somewhat compromised by the retention in Title V TEU of detailed provisions relating to the common foreign and security policy (CFSP); the explanation doubtless lies in the wish to emphasise the particularity of the CFSP. In contrast, the provisions relating to police and judicial cooperation in criminal matters (PJC), which are presently found in Titles VI TEU, are to be transferred, with amendments, to Title IV of Part Three of the TFEU.

  2.  The Union is described in Article 1 TEU, as amended, and in Article 1a TFEU as being "founded" on the TEU and the TFEU, which are to "have the same legal value". The EURATOM Treaty is the subject of a Protocol, which leaves it with an uncertain status—not a foundational Treaty, though subject to the same institutional arrangements, and the same ordinary amending procedure and accession procedure, as the TEU and the TFEU.

  3.  A significant change is that "the Community method" will no longer enjoy primacy in the system of the amended Treaties. The reference in the present Article 1 TEU to the Union's being "founded on the European Communities" will disappear. So too will the references in the present Articles 2 and 3 TEU to "building upon the acquis communautaire". Article 25b TEU makes clear that CFSP competences and the Union's other competences are to enjoy equal protection against mutual encroachment. Contrast the present Article 47 TEU, which has been interpreted by the European Court of Justice (ECJ) as preventing the Union's competences under that Treaty from encroaching upon the Community's competences under the EC Treaty.

  4.  In broad terms, it can be said that the TL will reduce the "three pillars" of the Union's present structure to two, while reinforcing the particularity of the Second (CFSP) Pillar.

 (b)   Whether the TL is a "lasting settlement"

  5.  This is a political rather than a legal question. The reference to "ever closer union among the peoples of Europe" is preserved in the second paragraph of Article 1 TEU, as amended. So the European integration process retains its dynamic character, in principle. However, there can be no further step towards a closer union without amending the Treaties. The TL will not remove Member States' control over such developments: the "simplified revision procedures" in Article 48 (6) and (7) of the TEU, as amended, respectively require unanimity in the European Council or give each national parliament a veto.


  6.  The fundamental rights enjoyed by individuals in the United Kingdom under the common law and the Human Rights Act will not be affected by the TL. This follows from the preservation as sources of rights, by the new Article 6 (3) TEU, of the European Convention and Member States' constitutional traditions, which are to be protected as general principles of EU law.

  7.  I have published a short article in the February 2008 issue of Parliamentary Brief (pp. 9 to 10) on my understanding of the implications of conferring the status of primary Union law on the Charter of Fundamental Rights, and of the significance of the Protocol on the application of the Charter to Poland and the UK. I argued that the change in the Charter's status was unlikely to amount to much more than a formality. The European Courts can be expected to refer to the Charter more regularly than at present, but only by way of confirmation, once the existence of a right has been established in the traditional way, by pointing to the European Convention or to constitutional traditions common to the Member States. On a true view of the Charter, interpreted in the light of the "horizontal provisions" contained in its Title VII, and with due regard to the officially recognised "Explanations", there would not be any need for the Protocol. It 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.


  8.  In my opinion,   the expansion of the rights associated with Union citizenship is set to continue in the case law of the Court of Justice, but this will have little or nothing to do with the TL. I cannot see that the Treaty will have any impact on present or future trends in the notion of British citizenship or Britishness.


 (a)   The EU as "a constitutional order of sovereign States"

  9.  The TL will do nothing to change the sui generis nature of the EU. I characterise the Union as "a constitutional order of sovereign States", or in bolder moments "a federation of sovereign States", to bring out the paradox on which it rests. On the one hand, the Member States of the Union retain their character as sovereign States (as distinct from the States of the USA or the German Lander): nobody questions their standing as full subjects of the international order; while they remain the principal focus of their citizens' collective loyalty and the principal forum of democratic political activity. On the other hand, the Member States have come together in a constitutional relationship which obliges them, during membership of the Union, to accept the discipline of acting under the institutional and procedural arrangements established by the Treaties, and in accordance with the rules resulting from them.

  10.  I would point to the following novel elements of the TL as indicating, even more clearly than the present Treaties, that the Union has no vocation to become a State:

    —  The addition to Article 1 TEU of the phrase "on which the Member States confer competences to attain objectives they have in common". 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.

    —  The statement in Article 3a (1) TEU, as amended, which is repeated in the definition of the principle of conferral in Article 3b (2) TEU, as amended, that "competences not conferred upon the Union in the Treaties remain with the Member States" (emphasis added). The use of the indicative mood shows that this is a statement of fact. Member States do not derive their competences from the Treaties but from their own sovereignties.

    —  The statement preserving Member States' "national identities", which is more muscular than the statement in the existing Article 6 (3) TEU.

    —  The express right of withdrawal that will be recognised in Article 49a TEU, as amended. Under the existing Treaties, there would be no way of preventing a Member State from withdrawing from the Union. However, explicit acknowledgement that this is a right Member States enjoy in accordance with their own constitutional arrangements underlines the fact that the measure of sovereignty that was pooled, as a result of accession to the Union, is in principle fully recoverable.

 (b)   Categories of Union competences

  11.  The main categories of the Union's competences—exclusive, shared and supporting—are usefully defined by the new Title I TFEU. This is by way of a clarification: the definitions reflect distinctions found in the detailed provisions of the present EC Treaty. It would have been misleading to have provided a catalogue of Union competences, without highlighting these distinctions. Particularly striking is the limited range of competences that are a priori exclusive (Article 2b (1) TFEU).

  12.  The Protocol on the Exercise of Shared Competence cures an ambiguity that existed in the Constitutional Treaty. It makes clear that the curtailment of Member States' competence resulting from the adoption of a Union act in areas where competence is shared, as provided for by Article 2a (2) TFEU, "only covers those elements governed by the Union act in question and therefore does not cover the whole area".

 (c)   Primacy of Union law

  13.  The TL has no provision corresponding to Article I-6 of the Constitutional Treaty, which stated that "[t]he Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States". That provision could have been read as extending the principle of primacy (and, by implication, that of direct effect) over the whole field of Union law, including to the CFSP. The omission of the principle from the TL means that primacy remains a principle developed in the case law of the ECJ, which has only a very limited jurisdiction in CFSP matters.

 (d)   UK powers in respect of labour and social legislation

  14.  There has been concern that new "social rights" derived from the Charter of Fundamental Rights, once it acquires the force of primary Union law, may undermine relevant UK law, especially regarding collective action by trade unions. For the reasons indicated in paragraph 7, above, and in the article there cited, I do not share that concern. The relevant provisions of the Charter preserve any limitations imposed by national law, as the ECJ recently acknowledged in its Viking judgment.

 (d)   An independent foreign and defence policy

  15.  I do not believe that the changes in the organisation of the Union's external relations, which are envisaged by the TL, would be liable to inhibit the United Kingdom in pursuing an independent foreign and defence policy. Decisions on new policy initiatives in the CFSP framework can only be taken by the Council acting unanimously; QMV remains confined to implementing decisions, except where a proposal is made by the High Representative in response to a specific request by the European Council, acting for this purpose by consensus.

  16.  If, as is hoped, the new-style High Representative succeeds in promoting more effective external action by the Union, the scope for independent action by the UK will only be restricted in a given situation, because the Government judges it to be in the nation's interest to proceed collectively, in that instance.

 (e)   Protection of "red lines"

  17.  The opt-in/opt-outs secured by the Government in the area of justice and home affairs are, in my view, perfectly adequate to prevent any damaging encroachment on the common law, as a result of the "communitarisation" of the Thrd Pillar". A system, which has proved unproblematic since it was brought in by the Amsterdam Treaty, is to be extended to the new chapters of Title IV of Part Three TFEU on criminal law and police cooperation.

  18.  On taxation, so-called "own resources" must still be established by a unanimous Council decision and ratified at Member State level (Article 269, second paragraph TFEU); while tax harmonisation will also still require unanimity (Article 93 and re-numbered Article 95 TFEU).


  19.  I can think of no way in which the internal organisation of the United Kingdom will be affected by the TL.


  20.  One of the key reforms introduced by the TL will be the enhanced role of national Parliaments in the legislative process of the Union. This is to be achieved by improving the flow of information from the Union institutions and by the new "subsidiarity mechanism", which will provide a way of forcing reconsideration of legislative proposals on matters that should arguably have been left for the Member States to deal with. The two relevant Protocols create real opportunities for national Parliaments, if only they are willing to grasp at them, to strengthen democratic accountability in the EU.


  21.  I am not aware of changes envisaged by the TL 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.


  22.  Under existing arrangements, the Community has legal personality explicitly conferred by Article 281 EC, and international capacity in the matters for which competence has been conferred on it; while the Union has de facto legal personality (accepted in practice by our principal international partners, including the United States), and international capacity for the matters covered by Titles V and VI TEU. The replacement of this strange dual personality by a single legal personality for the EU will be a purely technical change having no effect on the division of competences between the Union and the Member States.

19 February 2008

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