House of Lords - European Union

Select Committee on European Union Written Evidence

Memorandum by Mr Andrew Duff MEP

1. The Sub-Committee may be aware of the oral evidence I gave recently to the European Union Committee, now published in the 35th Report. This memorandum supplements that.

2. To recall my interest in these matters, I served on both of the European Union's Conventions on the Charter of Fundamental Rights and on the Constitution, and was the Parliament's co-rapporteur on the Charter. Lately, I represented the Parliament in the Intergovernmental Conference (IGC).

SCHENGEN, JUSTICE AND HOME AFFAIRS

3. The Treaty of Lisbon will make radical changes to the way the Union develops its area of freedom, security and justice. The Treaty deconstructs the third pillar and integrates it with the first. This means QMV in the Council plus co-decision with the Parliament, full right of initiative for the Commission (although one quarter of Member States may also take initiatives), and a widening of the scope of the EU Courts (with only police operations excluded).[1] Where consensus cannot be found, the majority of Member States will be propelled forward into enhanced cooperation. The establishment of the European Public Prosecutor may be the first practical example of enhanced cooperation.

4. The current institutional obstacles to integration in this sector are therefore removed. Entrenchment of fundamental rights means that the citizen is better protected from any abuse of the greater powers now vested in the EU. Overall, therefore, the changes on offer in the new Treaty are greatly to be welcomed. At the same time, the Schengen area enlarges. So in these matters close to the citizen one can expect rapid legislative progress, more relevant jurisprudence, and an overall higher quality of policy and level of ambition. The Union will enjoy a greater capacity to act effectively to meet pressing contemporary challenges of security, liberty and freedom of movement.

5. That is the good news. The bad news is that the United Kingdom has negotiated derogations from many of these positive advances. Government policy has retreated since 2004 from the positions it was apparently happy to accept in the Treaty establishing a Constitution. Nobody quite knows why. There has been no adverse referendum on the constitutional treaty in this country; nor has there been a negative vote in either House of Parliament. Despite entreaties, the government gave no explanation to the IGC of why it feels the need to opt out of so many of these key areas of integration. Neither has it accepted an invitation to appear before the Constitutional Affairs Committee of the European Parliament. I hope your inquiry can get ministers to be forthcoming.

6. With respect both to the Schengen acquis and Schengen building measures and to the third pillar acquis and future development of freedom, security and justice policies, the IGC was obliged, at the behest of the British, to negotiate complicated protocols. As a result of these tortuous negotiations, the UK and, reluctantly, Ireland (and to a lesser extent Denmark) are to be allowed to either opt into or opt out of EU common policies. The scope of the British derogation widens from asylum, immigration and civil law under the Treaty of Nice to cover police cooperation and criminal law. But I am satisfied that the UK may exercise its privileges only according to terms, conditions and timetables to be established in each case by the Council and Commission (who will try to maximise both participation and coherence).[2] The UK may not opt in at the beginning of a legislative procedure and, then, at the end, opt out. Nor may it stick with an existing policy if the others agree to revise it. Nor may it continue to participate in existing common policies if, after a transitional period of five years, it refuses to accept the new powers of the Commission, Parliament or Court.[3]

THE CHARTER

7. The situation is more serious with respect to the Charter of Fundamental Rights. The Charter becomes binding and has the same legal value as the Treaties, although its text will not be in the Treaties.[4] The Charter will be solemnly proclaimed at a plenary session of the European Parliament by the Presidents of the Parliament, the Council and the Commission on 12 December and published in the Official Journal.[5] A Protocol introduces specific measures for the United Kingdom and Poland seeking to establish national exceptions to the justiciability of the Charter.[6] The Treaty provides a new legal basis for the accession of the Union to the European Convention on Human Rights.[7] The Council will decide this by unanimity, with the consent of European Parliament and the approval of national parliaments.

8. British opposition to the Charter is hard to credit. The Charter is seen elsewhere (including in Poland) as a key part of the constitutional evolution of the Union, helping to bridge the credibility gap between the EU and the citizen. It is a comprehensive and visible catalogue of the rights, values and principles which both reflects and informs contemporary European society. It makes the Union better prepared for subsequent advances in integration as well as further enlargement.

9. The Charter was drafted as if it were or could become mandatory. For that reason, I opposed the decision of the 2000 IGC merely to render the Charter as a political code of conduct on the grounds that this was bound to aggravate the legal uncertainty that its drafters, including Lord Goldsmith, had been so anxious to avoid. Consequently, the change of heart by the next IGC in 2004, after long discussion both there and in the Giscard Convention, was wholly welcome. The decision to make the Charter binding on the European Union institutions and on the agencies of the EU, including member state governments and courts when and in so far as they apply or interpret EU law and implement EU decisions, is a huge step forward for the European citizen.

10. The agreement in 2004 on how the Union should deal with fundamental rights was a carefully constructed compromise. All parties to the negotiation, including the European Parliament, made concessions. Any retreat from that package, therefore, is a solemn matter with serious consequences not only for the quality of the outcome with respect to fundamental rights but also for the trustworthiness of the whole constitutional process from 1999 onwards.

11. The UK and other states accustomed to common law traditions, had, in playing a leading part in the negotiation of the Charter, contributed very significantly to the Union's capacity to take this leap forward. Particularly relevant here are the four horizontal articles at the end of the Charter which set out very clearly its scope and limitations, its field of application, the difference of interpretation between rights and principles, the level of protection afforded, and the prohibition of abuse of the rights.[8]

12. You ask specifically about the application of the Charter to measures in the field of freedom, security and justice. It should be recalled that the Charter confers no new competences on the Union, and is relevant only within the area of competence as conferred on the Union by the Member States and in relation to the explicit powers of the EU institutions. The Treaty makes the Charter binding on Member States only in respect of the application of EU law and subject to the principles of subsidiarity and proportionality.[9]

13. The Charter's principles in respect of justice and home affairs policy become significant only as and when articulated in terms of EU legislation or executive action within the area of conferred competence. Competences not conferred on the Union remain with Member States.[10] And, in any case, the Union is beholden to respect national constitutional structures and essential state functions, including the maintenance of law and order and the safeguard of national security.[11]

14. Too much is made, in my view, of the difference between countries with common law and Roman law traditions. The UK is not alone in having to adapt its legal and penal systems to the gradual emergence of the EU into civil and criminal law. A binding Charter is at least as necessary for common law Member States, if not more so, when confronted by and contributing to the rapid development of the EU's supranational legal order. The fact is that the Union is engaged in a long process of approximation, by one means or another, of national codes of civil and criminal law. Mutual cooperation between national authorities, if it is to be purposeful, needs some basic element of uniformity at the EU level.

15. The Charter is our common response to how these transnational legal developments impact on civil liberties. The Treaty of Lisbon enhances the authority of the European Court of Justice to check how the EU exercises its powers over citizens. The Charter made binding will allow the Luxembourg Court to develop case law in all matters relevant to the Charter, subject to the external supervision of the European Court of Human Rights at Strasbourg, with which it will enjoy exactly the same relationship as that enjoyed by national supreme courts—especially once the EU has itself signed up to the ECHR.

16. The UK was thought to have done very well in the negotiation of the Charter. The idea of a British success was reinforced by statements to the Commons in 2004 by Tony Blair and Jack Straw. Hence the profound disappointment felt by Britain's partners in the recent IGC about the UK opt-out. Indeed, their efforts to persuade their own parliaments and public of the virtues of the Reform Treaty are being complicated by the British derogation from the Charter and, especially, by British efforts to downplay the social dimension of the single market.[12]

17. An exemption by one member state from the full force of the Charter is not simply to be equated with opt-outs from specific common policies. The Charter has a symbolic value that the Schengen Agreement, for example, does not. There are external and as well as internal ramifications. We can be assured that the lesson of the UK opt-out will not be lost in Moscow, Belgrade or even Ankara. The sight of the European Union being picky and choosy with its own rights regime is hardly edifying.

18. In the European Parliament, needless to add, the UK Protocol has provoked scorn. It is very difficult to explain to colleagues why the UK wants to resile from the agreements reached in 2004, and what it is exactly that the UK hopes to gain from its opt-out. It does seem rather bizarre for any government—especially a social democratic one—to seek to deprive its people of the higher standards of rights protection now required by the rising level of European integration.

19. It is clear that other Member States harbour serious doubts about the legal efficacy of the British opt-out. British courts will be unable to avoid the Charter being invoked in trans-national cases. British citizens resident in other Member States or British firms at work elsewhere within the Union are bound to get involved in litigation in which the Charter features. Furthermore, whatever happens in the UK, courts in other Member States and the EU Courts themselves will be minded to develop jurisprudence in the field of fundamental rights, blind to nationality, which interprets and seeks to apply the provisions of the Charter in full.

20. As the Charter addresses the system of the Union as a whole and not just parts of it, once it becomes justiciable such case law will be elevated eventually into general principles of EU law which have to be applied uniformly in order to ensure legal certainty and coherence throughout the Union, applicable to all Member States equally. This is the line likely to be taken not only by the courts at Luxembourg but also at Strasbourg. So it is only a matter of time before the lock gate the British Government has sought to erect against the impact of the Charter begins to leak. Some day the flood tide of EU rights law will find its way up into Lord Denning's famous rivers and estuaries. But, regrettably, Britain will have had no part in directly shaping that regime because of its self-exclusion from the initial, crucial phase of litigation.

21. However, there is a real worry that, in the shorter term, the UK Protocol might contaminate the whole legal system of the Union and devalue the force of the Charter. This is because every Member State is committed to the key general principle of EU law that recognises fundamental rights as stemming from the common constitutional traditions of all Member States.[13] The UK notwithstanding, by way of its opt-out, is now seeking to assert that it will only recognise those rights as legislated for in UK national law. The Protocol says that only UK law may be invoked in UK courts as the source of litigation on the Charter. This may well lead to the UK being found in breach of EU primary law.

22. On top of the risk of legal contamination, we have political spill-over. Any sympathy in the IGC for British particularism was dispelled as soon as Poland decided, for reasons best known to itself, to join the UK opt-out. Overall, it is difficult to escape the conclusion that the British opt-out from the Charter is not only a fair juridical nonsense but also a serious political misjudgement.

23. In these circumstances, it was all the more regrettable that the UK rejected a proposal made to it at the IGC to accept the addition of an "escape clause" which would have permitted it to unilaterally abrogate its opt-out once it had been reassured about the quality of jurisprudence in cases where the Charter was invoked.[14] Alas, in the absence of such a flexibility clause, the full paraphernalia of another IGC will now be needed if the UK is ever to participate fully in the Union's fundamental rights regime.

22 November 2007

1 The stipulation that one quarter of Member States are needed to make a legislative proposal is a significant improvement on the present situation in which any one state can so act (Article 76 TFEU). Back

2 Article 5 of the Schengen Protocol & Declarations 39b, 39c, 39d, 39e; Protocol on position of the UK and Ireland in respect of the area of freedom, security and justice. Back

3 Article 10 of the Protocol on transitional provisions & Declaration 39a. Back

4 Article 6(1) TEU. Back

5 Official Journal C series. The Charter's explanatory memorandum will also be published here. However, when the Charter becomes legally binding (on the entry into force of the Treaty), it will be re-published in the L series-leaving behind the explanations, which are not justiciable, in C series. Back

6 Protocol on the application of the Charter of Fundamental Rights to Poland and to the United Kingdom. Back

7 Article 6(2) TEU and Protocol on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms. See also Declaration 1. Back

8 Charter Articles 51-54. Back

9 Article 5 TEU. Back

10 Article 4(1) TEU. Back

11 Article 4(2) TEU. Back