Examination of Witnesses (Questions 1
- 19)
TUESDAY 20 NOVEMBER 2007
Mr John Palmer and Professor Damian Chalmers
Q1 Chairman:
Professor Chalmers, John Palmer, thank you both very much indeed
for giving of your valuable time to come to answer some questions
and discuss with us one or two matters relating to the Reform
Treaty. As you know, we are focusing in the Select Committee at
the moment on the impact of the Treaty on the institutions and
what that means for the UK. Our report will be a component of
a broader report which will focus on the whole array of issues
arising in the Treaty on which our sub-committees are currently
working. We are on the record. We shall be sending you a full
transcript of the proceedings so that you may check to see that
what you have said has been properly reflected and the results
of the evidence will be printed as part of the composite report.
I cannot give you the date yet of when that is going to be published,
but we have a commitment to try to get it out in advance of the
Ratification Bill coming into this House, so that the report will
inform, we hope, members of the House of Lords who will wish to
participate in the debate or have a general interest in the topic.
Would either or both of you like to make an opening statement
before we go to questions? You are welcome to do so. Mr Palmer,
would you like to make an opening statement?
Mr Palmer: As I have written in the public press
about this Treaty and about the subsequent debate in this country,
that it does seem to me really to be much ado about not a great
deal. By this I mean that the most striking thing to me is the
modesty of the proposals in this Treaty by comparison with nearly
all of the preceding treaties. Indeed, I have been a little concerned
that the proposals in this Treaty are particularly modest in relation
to the problems that the Union faces and which it seeks to address.
So by way of introduction, I think that a lot of the judgments
that I come to in answering some of the questions that you have
asked have, in a sense, been inspired by that sense that it is
the modesty and maybe the adequacy in some respects of this Treaty,
rather than its ambitions that strike me as important.
Professor Chalmers: I would echo what Mr Palmer
has just stated. My view is that it is probably the most limited
reform, with the exception of the Treaty of Nice, that we have
seen in the last 20 years and some of the debates on the similarity
between this Treaty and the Constitutional Treaty have tended
to obscure that.
Q2 Chairman:
Okay; thank you very much indeed. Let us go straight to the questions.
It would be helpful to the Committee if you would talk to us a
little bit about the structure of the two Treaties. What is going
to happen? This is basically a treaty containing a lot of amendments
to previous treaties. Could you just walk us through the present
structure and how it is all going to end up?
Professor Chalmers: My view is that all any
treaty reform can do is three things. There is a symbolic dimension
which, although it has been rather played down in recent weeks,
was significant. The British Government have made a lot about
golf clubs having constitutions, so that can be relevant at times.
There is a question of competence as to what the EU can or cannot
do, and there is how it works. If we looked at the Reform Treaty
or Treaty of Lisbon in relation to each of those, taking first
of all the symbols, these were largely, not completely, taken
out, not just the ones that have caught the public imagination
about the hymn and the holiday et cetera, but also those relating
to the primacy of Union law and to the Charter. They are not in
the main text of the Treaty. Compared to the Constitutional Treaty,
there are references or, in the case of primacy, a declaration.
There is still stuff there on representative and participatory
democracy that one could say has a certain symbolic input. Turning
next to the question of competences—and I will do this by
reference to the Constitutional Treaty—my view is that with
one small, arguably significant exception, which is the role of
the flexibility clause, there was no real extension of Union competences
by the Treaty of Lisbon. There is an interesting question about
the new status of the flexibility clause, given that it is now
meant to overlap the Union rather than the Community and that
it is used regularly, that is to say 30 times a year. Beyond that
there was no extension of competences. In terms of the collapse
of the Pillars, which was the collapse of the third into the first
and the extension of supranational disciplines, one could say
that what has happened is that we are now in a situation where,
instead of agreeing a new IGC at Maastricht, John Major simply
said the UK would opt out of justice and home affairs, that from
a British perspective we had the right to opt into all these communautaire
disciplines: migration; asylum; policing cooperation; criminal
justice and civil matters. The extension of qualified majority
voting, when one looks at it, which does take place, although
50 areas have been mentioned, is largely in single market areas
and some trade policy. So if one were looking at questions of
what the Union does, there has not been a huge extension of Union
competence; in terms of supranationalisation, the UK has largely
reserved the right to opt into the bits which are significant,
in terms of faster decision making and qualified majority voting.
It is in areas that are largely to do with trade liberalization.
The third thing it does is to change how the EU works and institutional
mechanisms and that is probably the bit that in my view the Reform
Treaty is most significant in. If I were to say there was one
big message from the Treaty, it would be that there is a significant
growth in the powers of the European Parliament, largely at the
expense of the Commission, but not exclusively so. A lot has been
made of the increase in the role of the co-decision procedure;
I would agree with that, or the legislative procedure as it will
be known. What has been less noted is that in many areas where
the European Parliament has merely consultative powers, it now
has the power of assent or consent. These are significant areas
like the flexibility provision, citizenship, the anti-discrimination
provision. In that area, one will see a very significant increase
in the European Parliament powers. That is all I would say at
the moment but I hope that is clear.
Q3 Chairman:
Thank you very much. That is a good overview. We are focusing
very much on the institutional questions, so that is helpful to
us. I just wanted to be clear so that we know exactly the framework
when we are doing the examination of the Treaty. Could maybe John
Palmer explain to us exactly why it was felt that there should
be two Treaties? There is the Treaty of the European Union and
the Treaty on the Functioning of the European Union. What in fact
is the significant difference between those two?
Mr Palmer: This is a question where Professor
Chalmers may be in a better position to give you a detailed answer
than I am. It is historical. The format is largely derived from
past practice. I do not know if I may just add a slight rider
to the earlier question and that is that the form of this Treaty
is regrettable by comparison with what was on offer before in
one important respect. This Treaty defies all but the most dedicated
specialists and legal experts to understand and interpret it.
The constitutional text, whatever people thought about its content,
was a remarkably readable document and one in which the different
parts hung together in a more coherent fashion than certainly
they do at present. So we have suffered a democratic setback in
terms of the form that has now been adopted, a remarkably different
form of amendments to the two Treaties. I would invite my colleague,
if he has something more concrete, to answer in relation to your
first question.
Professor Chalmers: Very briefly, in relation
to the legal significance, I would agree with what Mr Palmer said.
It is almost an historical consequence of two things. If you look
at the existing EC Treaty, there is the bit between the policies
and principles and it echoes that. More specifically, it reflects
the distinction there was between the part one and the part three
of the Constitutional Treaty. I never saw that as particularly
significant. It may be that one finds that various provisions
in the Functioning are interpreted in the light of the earlier
provisions, but broadly speaking they all have equal weight.
Q4 Chairman:
May I quote you something one read in Euro Politics which
is relevant to the structure of the Treaty? It says that by renaming
the Treaty establishing the European Community "the Treaty
on the Functioning of the European Union", the Lisbon Treaty
implicitly subordinates it to the Treaty on the European Union
and consequently to the objectives that Treaty sets for Europe.
It goes on and says that as a result principles previously considered
declaratory—and I will not read out the whole list but some
of them—protecting its citizens, economic social and territorial
cohesion, cultural and artistic diversity as well as social objectives
become fundamental principles guiding European policies and by
a simple mechanical effect, they are raised to a higher level
and this is a very strong political move. Would you agree with
that?
Professor Chalmers: It is an arguable case but
I think it is overstated. One has to say that the current relationship
between the EC Treaty and the Treaty on European Union is a mess;
this House has been very concerned in relation to Article 47 of
the Treaty on the European Union and the expansion of the EC Pillar
at the expense of the others. One has to say that problem has
been got rid of. It would go to the Court of Justice; the Court
of Justice would hear that argument. How much weight would it
give to it? I would be surprised if it did what the commentators
say, because it would overrule the acquis apart from anything
else.
Q5 Lord Blackwell:
Professor Chalmers, I was intrigued by your statement that the
Treaty did nothing to extend competences. As I understand it,
the Treaty defines three types of competence: exclusive competences;
shared competences; and coordinating competences. It goes through
a long list of what is covered in each of those, including a number
of areas which were not in previous Treaties. It goes on to explain
that in shared competences, national governments may only legislate
in areas where the EU is not legislating. Do those have any impact,
in your view, in extending competences?
Professor Chalmers: My view is no. It is true
that if you read the text of the existing Treaty, it does not
say those things. It reflects the caselaw of the Court of Justice
in so far as it interpreted existing Treaties, is the simple answer.
Q6 Lord Roper:
Would you say it is just codification?
Professor Chalmers: A lot of this is codification.
How the Court then interprets the codification is another matter,
but it is meant to be codification. That is my understanding anyway.
Q7 Lord Blackwell:
I would be interested in Mr Palmer's view on this. To the extent
that the Court had made judgment in these areas, but it was not
in previous Treaties, is that something we should take interest
in, in terms of the way this Treaty is...?
Mr Palmer: Yes, certainly. The Court's capacity
to make case law is a fact of life and it has played an important
part in the definition and evolution of the integration process.
There is no doubt about that and there is no reason to think that
that will not continue. There is nothing new in this Treaty that
creates for the Court a whole new realm of competence that has
not already implicitly been there, indeed been exercised in a
number of areas that have enlarged our understanding of what European
law means for the integration process.
Q8 Lord Blackwell:
Just to be clear then, are you saying that these competences as
codified here will be the first time that they have actually been
approved by the UK Parliament as competences?
Professor Chalmers: It is a difficult question
to answer. It is bit like saying that any judgment of a British
court which may be slightly different from how a Member of this
Parliament views it should come back to this Parliament. I feel
that is the implicit message from the question; maybe I am being
unfair to the questioner. It is certainly right to say, and this
is one of the reasons why there was so much debate about the Constitutional
Treaty, that a lot of the things that were left in case law, the
acquis, et cetera, were made much more explicit by the
Constitutional Treaty and the Reform Treaty. In so far as they
are being debated now, the point you make is right, yes.
Q9 Lord Kerr of Kinlochard:
I put it to Professor Chalmers that what is in these three articles
is a summation of what was previously scattered throughout the
Treaty. Collecting them under a chapeau does not change
the legal weight of the content of the articles.
Professor Chalmers: I hoped I was saying that;
yes, I agree.
Q10 Lord Maclennan of Rogart:
This may be a legal issue. Perhaps, Professor Chalmers, you would
be prepared to tell us what effect you think the Treaty's proposed
provisions may have. In my recollection, at the time of the Convention
leading up to the draft Constitutional Treaty, I was advised that
the United Kingdom had been alone at Maastricht in challenging
the inclusion of such a provision and that the general legal view
was that in international law the Union already had a legal personality
and that this was simply a declaratory provision. If that is so,
what is the effect, the practical consequence, of declaring that
the Union has a legal personality?
Professor Chalmers: I find this question in
some ways the hardest to answer of the questions of which I had
some notice. I would not agree with the interpretation that was
set out to you at the Convention. It is people who do not like
the three-pillar structure who make that interpretation. The EC
has had that personality and it has been there from the beginning
and, in relation to the earlier question, it was there when we
joined. That is not just in relation to expressed powers but any
internal power by virtue of the doctrine of parallelism. In so
far as the Third Pillar has now moved into the EC Pillar, policing,
judicial cooperation in criminal justice are now governed by that
legal personality and that would have been the case whether this
article were there or not. The real issue was personality with
regard to the Second Pillar. Now this is where I perhaps cannot
be as completely clear with the Committee as I would like, because
there is some ambiguity about this. The Union clearly has personality
now in all areas including foreign and security policy, but that
is not enough: it must be granted powers there actually to do
anything. It is one thing to say there is a power: an international
organisation also has to be conferred powers to act. The Treaty
makes very clear that the Union has no legislative powers in what
we currently know as the Second Pillar, foreign and security policy.
To my interpretation that would mean it could not just have a
willy-nilly treaty-making power in this field. Where it would
come in and where there has been continual concern by those working
in the Union about the current nature of Article 24 TEU is in
operational matters. There has been continual discussion about
things like the Union operations at Mostar, who is responsible
for what. It was where Member States could act through Union procedures,
but the Union was not formally accountable. There does seem to
me a case for the Union having a personality that should be accountable
for things like this. My interpretation of that, and it has been
set up in a declaration to the Reform Treaty as well, is that
as the Union has no legislative powers in foreign and security
policy it has no treaty-making powers under the new Treaty. That
is my interpretation.
Mr Palmer: I was told there are over 300 instances
in which the European Community has acted in the context of its
legal personality. Some people think that figure might even be
an underestimate. Of course, under formerly Pillar Two matters,
if the Union Member States wished the Union to negotiate an international
agreement on their behalf, they could indeed give it such a mandate.
There are even circumstances where they could be invited to do
so by the High Representative. It would require a decision to
give that political mandate but it certainly would simplify the
process then of achieving that treaty since it would no longer
be involving 27 individual negotiations. It is a practical step
that facilitates the business of actually concluding treaties
once a mandate has been given to the Union so to do.
Q11 Chairman:
Looking at the other side of the coin, states remain free to conclude
international agreements, provided that they are compatible with
agreements signed by the EU or within the EU's competence. If
that were contested, who decides whether it is compatible?
Professor Chalmers: My answer is that it has
to be national courts or foreign ministries because the Court
of Justice is excluded from the Second Pillar or what is currently
the Second Pillar. It cannot be the Court of Justice, so presumably
it would come before the national court, which would have to decide
whether it based its decision on EU law or national law or it
would be a matter of negotiation between the foreign ministries
and the various institutions of the EU.
Q12 Lord Maclennan of Rogart:
Do you think that the proposed provision alters the capability
of the Union to sue or be sued?
Professor Chalmers: Yes, it probably does.
Q13 Lord Maclennan of Rogart:
In what way?
Professor Chalmers: Crudely, once you have personality
on the international legal field, you have the capacity to be
sued or to sue.
Q14 Lord Maclennan of Rogart:
Are you denying that it had had that power to sue up to now or
that others have had the power up to now?
Professor Chalmers: I go back to what Mr Palmer
said. Clearly others have had that power; in the WTO the EU is
continually being brought as the largest trading block before
the WTO for compliance and non-compliance with it. The issue is
not what we currently know as the First and Third Pillar where
it has that capacity to sue and be sued because it has legal personality
and powers in those areas. The area of change, as I see it, is
in what we currently know as the Second Pillar, where it acquires
personality. My understanding is that it will have the capacity
to sue and be sued in that area of foreign and security policy
and for whatever acts it does or others owe to it.
Mr Palmer: I would defer to Professor Chalmers
on this but I understand that accession to the European Convention
might further enlarge that possibility that you have just described.
Professor Chalmers: That is absolutely right.
Q15 Lord Tomlinson:
As the question of accession to the European Convention has been
mentioned, as the European Convention is a convention between
sovereign states, do you think there is any basis on which the
European Union has the right to try to adhere to the European
Convention on Human Rights?
Mr Palmer: One of the advantages seen in this
process was precisely to enable it so to do and that in order
to improve the cooperation between the two legal jurisdictions
so as to avoid any complications. That is, as I have understood
it, the central case.
Q16 Lord Tomlinson:
Whereas it might be organically convenient, it strikes some people
as being slightly a legal mess.
Professor Chalmers: There is the question of
whether it is the most desirable way of going about it and I would
defer to you on that. It has to be said that the European Community
is a member of a large number of international organisations at
the moment, and it always raises questions, from the point of
third states, about whether that is accountable times one or accountable
times 28. In relation to the European Convention, my understanding
was that there was a great deal of sympathy for the EU becoming
a member and a great deal of support from the Council of Europe
in some ways. It is legally complicated, particularly when one
gets into things like exhaustion of domestic remedies, and what
that means in an EU context. No-one denies that.
Q17 Lord Tomlinson:
Can we turn to the main changes relating to the European Council?
While not excluding anything else about the European Council,
I am particularly interested in what you think the relationship
would be between the President of the European Council on the
one hand and the team presidencies of the Council of Ministers
on the other.
Mr Palmer: There is nobody at the moment that
I know of who can give a clear, concrete and precise answer to
the question of how these bodies will bed down together in practice
and how the liaison will work. As I understand it, the heads of
government deliberately did not seek to address some of the mechanics
of how the institutions will relate to each other in this series
of amendments or indeed in the previous Treaty, because it is
always open to an act of the Council to define a clearer functional
answer to the question. Politically there are two questions that
strike me. One is the relationship of the President of the European
Council to the new team presidencies. Related to that is the question
of the external representational role of the President of the
European Council in relation to the team presidencies. I do not
think, vis-a"-vis the President of the Commission or the
new High Representative that there will be a particular problem
but yes, there could be some significant overlapping. I will not
say turf wars but there could be some issues there that need bedding
down and clarifying before the first team presidencies in particular
come into function. I know, for example, that the team presidencies
that are in the pipeline after 2009, assuming the treaties are
ratified, have already begun to meet each other with a view to
centralising, at least at heads of government level, some of their
key political decisions over the 18-month period, which is going
to make it interesting, to see how they function in relation to
the President of the present European Council.
Q18 Lord Roper:
What will be the impact of the Reform Treaty on the functioning
of the Council of Ministers? In particular, is the new system
of qualified majority voting with the double majority likely to
be significant in practice?
Mr Palmer: There will not be a revolutionary
change. The most important impact of the practice of qualified
majority voting hitherto has been to assist the process of reaching
consensus. The actual occasions where people have been voted or
out-voted have been precious few, surprisingly few to me. I do
not myself see that this is going to change immediately. It is
a very important development that adds a significant pressure
to achieve a flexible consensus and that will continue to be the
case. There is, in the new areas of majority voting, in freedom,
security and justice where it applies, a general sense that the
unanimity under inter-governmentalism signally failed to achieve
the progress that was needed in this area and there has been remarkably
little controversy. I am leaving aside the UK position, about
its extension among the other Member States, even those with a
history of some reservations about majority voting, to it being
applied in these new areas.
Professor Chalmers: I would agree with all of
that. I would add one further thing, however. Whilst the system
between the double majority proposed by the Reform Treaty and
that by Nice is often overplayed, the difference is not very significant.
What is significant in my view is the timetabling, that essentially
the new system does not come in until 2017 and, depending how
one calculates it, there has not been such a period of change
that one can think of comfortably, if one thinks of enlargements
and voting rates.[1]1
The other thing that is significant, although it is downplayed
by most people I know, is the declaration on blocking minorities,
where, after 2017, states representing 55% of the blocking number
can intervene. Some people say "Oh well, we had that at Ioannina
and it was never really applied". This is a much more significant
difference. It means the states representing 19.25% of the population
can block legislation and, if one thinks that a lot of the time
we will want to be deregulating legislation, that is a very small
blocking minority. Germany has 17%, which means Germany plus three
other states in most cases, if one looks at some of the smaller
states. It does not actually help the UK. When one looks at the
UK which has about 12%, we will still need at least four or five
other states when one looks at the statistics.
Q19 Chairman:
Is that something that the Poles overlooked?
Professor Chalmers: I am on the record so I
have to be careful what I say. It was an easy thing for the Germans,
when they looked at the figures, to agree to the Polish demands.
That is how I would put it. It does not help the Poles as much
as they want. It brings us down to the Polish position, rather
than the Poles up to the British position, is how I would put
it.
Mr Palmer: I understand that the new Polish
Government may not be minded not to press beyond 2014 in practice
for this to be applied, in which case we may not have to wait
quite so long.
1 1 See p S17. Back
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