Examination of Witnesses (Questions 40
- 46)
TUESDAY 20 NOVEMBER 2007
Mr John Palmer and Professor Damian Chalmers
Q40 Chairman:
May I ask you both just to comment briefly on the general bridging
clause, that is to say the passage from unanimity decisions to
qualified majority, from the special legislative procedure in
other words, to the ordinary legislative procedure with no revision
of the Treaty necessary. What is going to be the impact of that?
Professor Chalmers: My view is that it is going
to be quite minimal. There was provision at Maastricht for moving
things from one Pillar to another. My understanding of the provision
is that individual national parliaments have a veto, so it will
obviously avoid the necessity for a referendum but not much more.
It may happen but, and this is looking into the crystal ball a
bit, experience suggests that circumstances are likely to be far
and few between.
Q41 Chairman:
And the role for national parliaments?
Professor Chalmers: My understanding on looking
at the provisions was that there was.
Mr Palmer: Yes, they can object and they can
block under certain circumstances. May I say that one of the things
I regret, as some people would have wished to happen, did not
happen, that we drew some distinction between how we handle institutional
change in future. Surely matters of genuine constitutional and
major importance have to be handled through unanimity but there
are all kinds of procedural matters, which currently fall under
the unanimity requirement if not in future actually under an IGC
as a result of this Treaty, which represent a needless impediment
to the capacity of the Union to adapt sensibly to changed circumstances.
I regret the concessions that were made to those who fear any
change in this respect.
Q42 Chairman:
In the remaining time would either of you like to make a brief
comment on the significance in legal terms of adding a specific
section on energy to the Treaty?
Professor Chalmers: My view is that almost everything
that is there could currently be done by Article 95, the single
market provision, or the environment provisions, and it is even
set out that way. The real danger at the moment is the Commission
is suggesting things such as the new energy regulator that might
be even beyond the competence of the new Article 176(a). There
is one issue maybe about security of supply that may not be currently
covered by EC competence, but that is the only one.
Q43 Baroness Cohen of Pimlico:
It sounds to me as though there ought to be more than that. This
was a specific legal provision added about energy for the first
time. I think you are saying that it does not really make a lot
of difference.
Professor Chalmers: Yes, I am saying that. The
experience of treaty reforms is that they develop new capacities
under general headings. This happened, for example, with environment
prior to the Single European Act, where most of the environmental
legislation we have dates in some ways from that period. Then
they codify it at the time. This is what has happened to energy.
Just go on to the Commissioner's website or talk to Ofgem. We
have had significant European energy legislation really since
1996 and the current raft of measures are very, very significant.
They require, among other things, the breaking up of industries.
Mr Palmer: I entirely accept Professor Chalmer's
expert legal view on this. Politically it is a signal that energy
may well be the next big issue over the horizon. We are going
to have to look at whether our government structures are adequate
including whether a greater amount of energy policy needs to fall
within the legal framework of Community law and Community decision
making. After the European Council at Hampton Court, there had
been an expectation that EU leaders might be a bit more ambitious
in energy policy than turned out to be the case.
Q44 Chairman:
Do you think that the solidarity principle which is enshrined
in Article 100 might draw the Council further into the energy
question since it presumably would be invoked at times when there
are difficulties about energy supply which would bring the Council
further into the argument?
Professor Chalmers: I defer to Mr Palmer. The
argument is yes, but it is less a question of legal provision
than political will. Almost the only thing you could say that
was an extension was this reference to climate change in the Reform
Treaty that had not been in the Constitutional Treaty and it does
seem to be the topic of the moment. If they were not using this,
they would probably be making extensive use of the flexibility
provision. That is my feeling. I am not well placed to give an
answer on how that develops.
Q45 Lord Powell of Bayswater:
How significant do you think removal of free and undistorted competition
from the objectives of the European Union in the Treaty is? It
is now only in a protocol. In the past, the European Court has
referred in its judgments to Article 3 to derive its judgments
from the broader objectives of the Union. Do you think this will
make a difference in practice, particularly to the European Court?
Professor Chalmers: Very briefly, obviously
the protocol would have the same legal force but you have identified
the nub of the problem which is that this provision has been used
as an interpretive device. What I would say about that is that
it has always been used to extend EU regulatory powers. It was
used to generate a merger policy, it was used to generate new
powers in the field of the single market and new Commission powers
over public sector monopolies. How much more mileage that had,
I do not know. It has never been used as a basis for a review,
so maybe, but it was always a double-edged tool. It could be argued
it has been used to suppress competition in some ways, if you
wanted to say it that way.
Q46 Baroness Symons of Vernham Dean:
Gentlemen, you have given us a fairly impressive tour d'horizon
across a whole range of topics which we have raised with you.
However, I come back to the point that you, Mr Palmer, made in
your opening remarks and with which Professor Chalmers agreed,
that the Treaty is much ado about not a great deal, a modest Treaty
you said and Professor Chalmers said probably the most limited
reform with some of the exceptions in the Treaty of Nice. Which
of these institutional changes that we have touched upon do you
think is going to impact the UK most?
Mr Palmer: In practical terms, I anticipate
the UK will find that in most of the justice-related agenda it
will be very strongly minded probably to opt in. Of course, it
will be opting in in circumstances where it thereby loses its
capacity to change its mind at a later stage in the process. In
other words what I am saying is that politically most of the issues
that appear to be coming over the horizon for discussion by the
Council are issues where the UK Government, with one or two exceptions,
is not minded to opt out; it is minded to exercise its right to
opt in. That is the first point. There will be some political
fallout around the Charter, especially if there is case law made
that affects British citizens in other EU Member States. Overall
the two big areas we have touched on are the position of the High
Representative and to what extent this Treaty provides the muscle,
the organisational coherence and will trigger the political will
to make a success of common foreign and security policy. That
is one of the litmus tests of this whole Treaty. Finally, there
is the European Parliament and the way in which this Treaty is
likely to encourage the further politicisation of the European
process. We are moving out of decades of something very short
of politicization. This may create new problems, certainly it
will create new opportunities for relating people to the European
issues, if it becomes more a question of political choice, where
people can feel they have a way of exercising judgment about all
of these issues and not have them handed down from on top.
Professor Chalmers: It is a difficult question.
On the first area I would actually agree with Mr Palmer. On the
supranationalisation of what we currently know as the Third Pillar,
I would imagine the UK will opt into cooperation on policing,
judicial cooperation; the main things I suspect it will opt out
of are minimum rules and harmonisation of criminal law and we
are now opting into a supranational network. The second area that
is significant, although I do not feel there has been a huge extension
of qualified majority voting, the big challenge for the EU in
the next ten years, is not going to be to develop 90,000 pages
of more legislation but to manage the existing legislation it
has and to get it down. To the extent that qualified majority
voting has been extended in the single market, this will be significant.
How significant, we do not know because the Commission made this
big pledge to get rid of 25% of legislation and this has not worked.
That is going to be the big challenge. It is going to affect everything
else to the extent that where qualified majority voting has happened
it could have possibly gone further and they could have made a
distinction between new legislation and amending existing legislation;
the two seem fundamentally different to me in terms of state sovereignty.
That is where the significance of the Reform Treaty is: it is
significant but not as significant as I would have liked it to
have been.
Chairman: Thank you both very much indeed
for your excellent evidence. This has given us a very good start
and a framework for our continuing examination of this Treaty.
We will be putting many of the same questions to other witnesses
from the European Parliament, our own Parliament and from Government
and other experts such as yourselves. Thank you very much both
of you and we will send you the transcript as soon as it is prepared.
We are very grateful to you.
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