Examination of Witnesses (Questions 60
- 79)
WEDNESDAY 14 NOVEMBER 2007
Professor Jo Shaw
Q60 Lord Tomlinson:
If I can pursue one small point. If we pick up this solidarity
principle in Article 69c where it particularly refers to the fair
share of responsibility, including its financial implications,
how do you see its relationship to Article 69i where with the
establishment of the European Public Prosecutor's Office it might
be established with only nine Members, where does the balance
of financial responsibility there lie? Is it with the Union and
the Member States, as it says earlier, or is it with the nine?
Professor Shaw: You would have to look elsewhere
for the answer to that because there is an answer to that in the
Treaty, but whether I can find it without spending a little bit
of time flicking through, I do not know. The basic principle of
enhanced co-operation is that the financial burden of enhanced
co-operation falls upon the Member States who choose to enhancively
co-operate, and it says so explicitly in the old enhanced co-operation
provisions in the existing Treaties, and I could not for a moment
tell you which Article it is in just off the top of my head.
Q61 Chairman:
Do not worry, it sounds logical and fair.
Professor Shaw: It is there somewhere and you
can dig it out.
Q62 Chairman:
Can we move on to a different subject and that is Article 10 of
the Protocol on Transitional Provisions, which excludes the jurisdiction
of the European Court of Justice and the Commission's powers to
monitor the implementation and act in respect of the existing
Title VI measures—that is police and judicial co-operation
measures—for five years. Perhaps you could just help us
as to how that is going to work. I am not sure what the purpose
of this provision is. I do not know whether you can help us on
that. Secondly, is the purpose potentially undermined if the existing
measures in question are converted into new measures, as they
did with some of the old civil conventions by converting them
into regulations?
Professor Shaw: I am sure that is what will
happen, there will be a great deal of work, but I would have thought
there will probably be some reconsidering of some of the existing
provisions. Some of those that were negotiated extremely fast
may need a little bit of work on them to improve the drafting,
particularly if after five years they could have direct effect.
That is the issue about which all of this is silent. It says that
the legal effects remain the same in Article 9, which is all that
there was in the original Constitutional Treaty. That was Article
443(8), paragraph 3 of the Constitutional Treaty.
Q63 Chairman:
Until they are repealed, annulled or amended. If they are re-enacted
--
Professor Shaw: Maybe if you leave them as framework
decisions then they cannot possibly have direct effect in the
future, but that is the one point about which both the Constitutional
Treaty was notably silent and this Protocol is notably silent.
I suspect that there will be work on the existing measures to
make them suitable for enforcement by national courts because
whatever it says about legal effects I think that some national
courts will come under a lot of pressure in any event. They already
have the Pupino principle about faithful interpretation
which the House of Lords has adopted as well, but regardless of
what it says in the old Treaty about framework decisions not having
direct effect, there will be a lot of pressure on national courts,
and it will be better not to just let that happen and cause problems
but to renegotiate and formulate provisions in a way that will
make it easier for the national judges who are going to bear the
brunt of some of this.
Q64 Chairman:
So the five years may not be five years in fact?
Professor Shaw: No exactly, but you are going
to get a lot of grey periods of having to negotiate. Presumably
any new measure will still have to have an implementation period
because in many cases it will require primary legislation at the
national level and you cannot just magic parliamentary time out
of nowhere.
Q65 Lord Bowness:
A lot of people ask questions about this Protocol. Could I just
ask the witness to say whether she is satisfied that it does in
fact mean what it says about the Commission and the powers of
the Court of Justice. In subsection 1 of Article 10 it is saying
that the powers of the Court of Justice will remain the same as
in the version of the Treaty in force before this one comes into
force.
Professor Shaw: I have no reason to believe
that it does not mean what it says so that will take us through
to 2014.
Q66 Lord Bowness:
It is helpful to hear you say it.
Professor Shaw: I have no reason to believe
it does not but you obviously fear there may be forces at work
which I cannot discern.
Lord Bowness: I do not fear anything;
I just think the answer is useful for the record because it is
a matter which is the subject of a lot of discussion and conjecture.
Q67 Chairman:
Can we move on to another area where the European Court of Justice
will no doubt come in for questioning and that is the Charter
of Fundamental Rights. Can you help us as to the impact which
Article 6 of the Treaty on the European Union will, in your view,
have, which says the Union recognises the rights, freedoms and
principles set out in the Charter and so on.
Professor Shaw: I am sure as a lawyer you will
be struck by the curiosity of the drafting, giving what apparently
is a declaratory instrument the same legal value as treaties formulated
by sovereign states. It is undoubtedly a rather curious way of
formulating it, but I am sure it is there for political reasons
rather than anything else. I am not convinced that the Charter
in any event, whether recognised in this form or not, is going
to have a stunning impact on the Court of Justice's fundamental
rights jurisprudence. The Court of Justice is perfectly capable
of doing rather dramatic things with fundamental rights without
the Charter, as witness the Mangold case, which I am sure
Lord Lester is very familiar with. I am distinctly sceptical as
to whether or not it is going to make some dramatic difference
to have the Charter there or not. I think there are all sorts
of comments about but it is unfortunate not to have a statement
in the Treaties from a political point of view.
Q68 Chairman:
Unfortunate not to have a statement to what effect?
Professor Shaw: I personally would have appended
it as a Protocol if I had been doing the job, because it clearly
would make no difference but at least it then would be part of
the documentation that people like us would be flicking through
trying to find answers to things. I do not quite understand why
they have not at least included it as a Protocol. By not including
it as a Protocol you presumably have frozen it in time forever
or you have abdicated the responsibility of the Member State to
change it to the institutions, because after all at the moment
it is a document of the institutions even though the Member States
were intimately involved in negotiating it, as some people around
this table doubtless know. It is a very curious formulation from
a lawyer's point of view.
Q69 Chairman:
I think it is a formulation which applies the rights and freedoms
as in the Charter as at 12 December 2007. Can you just help me
on the Protocol relating to the application of the Charter to
Poland and the UK. It starts off with a ringing statement whereas
Article 6 requires the Charter to be applied and interpreted by
the courts in Poland and the UK strictly in accordance with the
explanations referred to in that article, and then it goes on
with the qualifications which we are familiar with, I suspect.
Have you got a clear picture in your mind as to how those statements
inter-relate? When would the courts in the United Kingdom be applying
and interpreting the Charter as opposed to their domestic law?
Professor Shaw: As things stand?
Q70 Chairman:
In the recital it assumes that the courts of the UK would be applying
the Charter whereas the actual articles in the Protocol suggest
that what counts is national law.
Professor Shaw: If you look at it as an issue
of Community law, which is presumably the primary obligation upon
national courts in this context, there is no necessary reason
in most cases why the national court would look at the Charter
other than because what the Charter along with its explanations
provides is a handy ready-reckoner to work out, if you will, what
is the state of the general principle of Community law, which
is what applies currently in the UK anyway, and will continue
to apply, as is clear from where it states that the UK is still
bound. The last recital reaffirms that this Protocol is without
prejudice to other obligations. They are the other obligations
of the UK. The Civic Platform Government in Poland has indicated
that it does not want to participate in this platform so we are
just talking about the UK as a stand-out on this one. I do not
think it is easy to reconcile this but I thought the most revealing
information that I have come across about this was the exchange
of letters between the Foreign Secretary and the House of Commons
Select Committee on the European Union where David Miliband essentially
said this is not an opt-out; this is merely a clarification of
the law as we understand it to be, so I might venture the view
that this is a Declaration masquerading as a Protocol.
Q71 Chairman:
Quite what it is declaring may be open to discussion.
Professor Shaw: Yes because it is explicitly
not changing the status quo of Community law.
Q72 Lord Lester of Herne Hill:
It seems to me that much of this is driven politically but not
legally, and what I mean by legally is by the needs of judges,
lawyers or citizens. I wanted just to give one example. Suppose
I were arguing before Lord Mance in an actual case here, as an
advocate I would show him Lord Diplock in a case called Garland,
who years ago said look at the Treaties by which the UK is bound
as a presumption that our legislation, for example, conforms to
the Treaty. I would say to Lord Mance in his judicial capacity
that we are parties to the International Covenant on Civil and
Political Rights as well as the European Convention. Indeed I
might refer to other provisions as an aid to interpretation. He
might put my argument in the waste paper basket or he might not,
but for years and years British courts have been looking at Treaties
that have not been incorporated. A good example recently was the
Roma rights case where they looked at everything, including obviously
customary international law. Therefore in the question you have
been asked about these explanations relating to the Charter of
Fundamental Rights, looking at the Charter itself, I have to say
it seems to me that what it is doing in a gingerly way is to give
effect to the Treaty obligations that bind all Member State. What
it tends to do is to refer to European sources although much of
it comes for example from the International Covenant on Civil
and Political Rights. This is becoming a long question but it
will get somewhere, I promise you.
Professor Shaw: There are some very illuminating
statements in there.
Q73 Lord Lester of Herne Hill:
It has got some interesting things in it about the principle of
the right to good administration, for example, and that kind of
thing but it seems to me that the politicians, from whatever party
who seem terrified that this Charter is somehow going to change
things in terms of what national courts do by a process of interpretation
or what the ECJ does are not understanding the process that the
Luxembourg Court and the national courts have been indulging in
for years and years, because when they have to make difficult
policy choices about constitutional questions, they need all the
help they can get, and they look at Treaty obligations as part
of that. Talking as lawyers and not as politicians I do not understand
as lawyers why this makes much difference to existing practice
nationally or at European level.
Professor Shaw: It does not. I absolutely agree
with you, I personally do not think it does. As I say, my belief
is that it is a Declaration masquerading as a Protocol. Furthermore,
I find it quite an extraordinary thing to create a Protocol signed
by the UK's 26 partners which instructs British courts what they
are supposed to do. I do find that that expresses a degree of
distrust of the judiciary which I find absolutely staggering.
Q74 Lord Lester of Herne Hill:
I totally agree, if I am allowed to express a view. We can only
speculate about what Lord Mance would do in a hypothetical future
case, but I have no doubt about his predecessors because again
and again in these established cases they have done so. It goes
back to Waddington v Miah, 1974, Lord Reid, about retrospective
legislation and the unincorporated European Convention and the
International Covenant, where he said there must be a presumption
that we do not have retrospective legislation based on these unincorporated
international Treaties.
Professor Shaw: I agree with you entirely. As
I say, I think this displays an extraordinary distrust of the
justiciary.
Q75 Chairman:
Let us hope that that does not happen in practice.
Professor Shaw: I was not suggesting that it
does.
Q76 Lord Bowness:
Not wishing to reopen this discussion but again, in a sense, for
the record, it is all very well the witness saying it is a Declaration
masquerading as a Protocol but a number of people would say therefore
it has not got legal effect. You are not saying that, are you?
Professor Shaw: I am not saying it does not
have legal effect but I would doubt what legal effect it would
have. Unless the UK Government does something staggering and changes
the core provisions of the European Communities Act in order to
give effect to it—and I do not think that is going to happen—then
I do not know, unless you get into some sort of story about implied
repeal if this is included in a future European Communities Act,
but doubtless lawyers will derive some fun with it.
Q77 Chairman:
Can we move on to the last subject and that is Article 33 of the
TEU, the amendment of the freedom, security and justice provisions.
How do they operate? Am I right in understanding that they are
basically consensual and either consensus or unanimity is required?
Professor Shaw: As I am sure you have seen,
there are a number of different possibilities. There is the standard
amendment procedure which is exactly the same as it is at the
moment, plus it has the rider about four-fifths of the Member
State agreeing and what happens if you cannot get complete agreement.
Then you have the simplified revision procedures, and I have never
been wholly convinced by the effectiveness of simplified revision
procedures of this nature because although it does not involve
a convening formally of an Inter-Governmental Conference I am
not sure how much difference it makes in practice. It may give
the European institutions something more of an insight into what
is going on, but on the other hand they are relatively involved
at the moment. It is still subject to unanimous decision and it
is still subject to ratification in accordance with whatever the
constitutional requirements are. Perhaps paragraph 7 of Article
33 raises some more novel questions which we have not tried in
the past which would be a passerelle for decision-making
processes based on prior notification to national parliaments,
allowing national parliaments in advance to hold up a red card
and say go away. Maybe that might be something that might pose
some novel challenge to national parliaments in terms of inter-parliamentary
co-operation. That is an interesting one. Whether each national
parliament is going to insist on acting entirely autonomously
or whether they are going to be captured by party interests in
the normal way, I do not know, but that is an interesting one
giving national parliaments a prior notification opportunity and
the capacity to hold up a red card.
Q78 Chairman:
Am I right that a passerelle has not hitherto been a method
by which amendments have in practice been made?
Professor Shaw: No. I think there are good reasons
which political scientists would tell you about because they would
focus on how agenda-setting works amongst sovereign states. There
are very good reasons, other than through the legislative process,
why Member States find it very hard to amend treaties other than
through package deals where they trade justice and home affairs
against the high representative of foreign policy or a smaller
Commission against an extra seat in the European Parliament and
so on.
Q79 Chairman:
Professor Shaw, thank you very much indeed for coming and for
giving us your time and your expertise.
Professor Shaw: My pleasure.
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