Examination of Witnesses (Questions 220
- 239)
WEDNESDAY 5 DECEMBER 2007
Mr Martin Howe QC
Q220 Lord Bowness:
My Lord Chairman, whether they have the power to amend, they also,
presumably, have the power to reject. I fully accept that the
Council and the Commission initiate. They can initiate as much
as they like, can they not; the Council has not got to accept
what they initiate?
Mr Howe: Certainly, the Council can just reject
it and say "We were not accepting a measure on this legal
base; go away." Of course, the situations that I have given
an example of are ones of the Working Time Directive, where there
was a majority of the Member States politically in favour of it
and so there was majority political support for using a QMV basis.
Q221 Chairman:
The Legal Adviser reminds me that in the environmental pollution
case the original proposal was for first pillar; the Council did
change it to third pillar and the Court held that it should be
under the first pillar. That is an example of a situation where
all the groups were gone through; it was not just the Council
allowing it to go through.
Mr Howe: I think these are more general points,
which have taken us perhaps a little bit away from the specific
question, the opt-in Protocol.
Q222 Chairman:
I want to task you in a moment about the Schengen opt-in, but
is there anything more you want to say on the general Amsterdam
Title IV Protocol, as to the effect of the expansion of Title
IV and the corresponding widening of the general opt-in?
Mr Howe: Yes; there is a general point about
the opt-in which is fairly obvious and it is that, although, of
course, there is a right to opt in, as far as I can see it is
irreversible once you have opted into a proposal. Therefore, one
possible danger is to opt in to a proposal at a stage where it
is in a form which is acceptable to the United Kingdom, for it
to be amended in some way subsequently to a way which causes us
problems. As far as I can see, you are then stuck with it, and
if it is a QMV basis then it would be passed through under QMV.
Q223 Lord Jay of Ewelme:
How would that differ from normal Community business, when a proposal
is put forward and they can accept it, can like it and then there
are amendments or arguments and it is changed? What would be new
about the Reform Treaty, as it were, by comparison with the existing
method of operating in this respect?
Mr Howe: It is no different from an existing
QMV Treaty base, and, of course, in that case you do not have
the right to opt in or not opt in to it in the beginning. I think
what one is saying is that the right to opt in or not to opt in
is not an absolute protection, because one has to consider carefully
not the measure in the exact form that is before the Council at
the point one decides to opt in but the possibility of it being
amended in some way which is detrimental.
Q224 Chairman:
I suppose there may be a nice point there, taking the wording
of the Protocol: you notify that you wish to take part in the
adoption and application of any such proposed measure, whereupon
you are entitled to do so; if there was a sufficiently significant
change, it would cease to be any such proposed measure, it would
be a different one?
Mr Howe: That is a possible argument, and of
course the Commission uses a similar argument; it claims the right
to withdraw a proposal if it is dénaturé,
denatured or changed substantially by the Council. The other thing
about the opt-in/opt-out is that it covers the freedom, justice
and security provisions of the Treaty; it does not, if you like,
cover surrounding areas. There is one particular expanded power
in the Lisbon Treaty, which personally I suspect may be the most
significant expansion of the powers of the European Union, which
is Article 188l, or the Article 188l to be inserted, which is
the external Treaty-making power of the European Union outside
the field of the Common Foreign and Security Policy. I am not
sure in what format you have the Treaty.
Q225 Chairman:
In our bundle, it is page 59, in handwriting.
Mr Howe: It is 188l. It is a lower-case "l"
so it looks a bit like a one.
Q226 Chairman:
Is this an entirely new Article or is there a corresponding one
with which we should compare it?
Mr Howe: I think it is entirely new, but there
are specific provisions relating to the conclusion of an agreement
within the scope of the Common Commercial Policy, but it is certainly
new in the extent to which it goes.
Q227 Chairman:
Right; and what is your comment on it?
Mr Howe: It does affect the justice and home
affairs provisions, because it expands the European Union's external
Treaty-making powers to agreements that are "necessary in
order to achieve, within the framework of the Union's policies,
one of the objectives referred to in the Treaties, or is provided
for in a legally binding act of the Union, or is likely to affect
common rules or alter their scope." If you take, for example,
let us say, the external extradition agreements between the Community
and third states, the Community has existing internal extradition
agreements which are embodied at present in the European Arrest
Warrant Framework Decision and it could be argued that concluding
an external agreement between the European Union and third parties
relating to extradition will fall within the competence of the
European Union under Article 188l, because it is likely to affect
the internal rules or alter their scope.
Q228 Chairman:
Can you help us as to what is the internal decision-making process
which leads to the Union being able to conclude such an agreement:
who, on behalf of the Union, takes the relevant decisions?
Mr Howe: The decision-making process is set
out in Article 188n, and in fact the general rule which is in
Article 188n is: "The Council shall act by a qualified majority
throughout the procedure." But then there is an exception;
it says: "However, it shall act unanimously ... " This
is Article 188n, paragraph 8.
Q229 Chairman:
Yes: " ... shall act unanimously when the agreement covers
a field for which unanimity is required ... "
Mr Howe: There is a sort of logic in that; if
the internal rules in the field concerned require unanimity then
concluding an external agreement also requires unanimity. A difficulty
I see with this is how this interrelates with measures within
the scope of the United Kingdom's opt-in, because there is no
explicit provision here as to how this international agreement
provision will operate if we have opted out. In other words, does
that mean we also opt out, cannot be entrained into an external
agreement relating to that field, or does it mean that we are
caught by the international powers of the European Union even
if we have opted out, as regards internal application? I confess,
this has been a bit of a puzzle to me and I have sort of hunted
round as best I can to see if there is any answer in the revised
Protocol.
Q230 Chairman:
And you have not found it?
Mr Howe: I have not found it, but I remain ready
to be convinced that somehow it has been thought of and dealt
with.
Q231 Chairman:
Can you help me on two points. Is that a problem which already
exists, in relation to agreements, for example, in the context
of immigration, which we have not opted into? Does not the Union
already have certain external competence? What happens?
Mr Howe: At the moment, you have to distinguish
between the Union's external competence and, of course, the Community;
the Community's external competence is much more limited. Under
the Court's doctrines, again, the Court has devised an implied
external competence.
Q232 Chairman:
You are referring to the Lugano type opinion, Commission v
Germany, I think. I am not sure what the title is, but it
is the opinion on the external competence in respect of a revised
Lugano Regulation to replace the Lugano Convention?
Mr Howe: That is one of them, yes. The explicit
competence is limited to commercial agreements within the scope
of the Common Commercial Policy. There is certainly no general
power by QMV to impose on Member States external agreements within
the justice and home affairs field.
Q233 Chairman:
I think the Lugano opinion indicates that there is if there has
been an internal regime set up. I suspect it echoes or relates
to the last words "likely to affect common rules or alter
their scope." Where you have got an internal arrangement
then there is an existing, exclusive external competence within
the freedom, security and justice area?
Mr Howe: If it is within the Community provisions,
rather than in the European Union third pillar provisions. Article
188l is stated to be based on taking the case law of the Court
of Justice and putting it in statutory form. However, it does
seem to me to go a little bit further in conferring a positive
power to make external agreements simply because they affect internal
common rules. It is going rather further than saying Member States
are prevented from doing things in conflict with common rules,
which is another matter.
Q234 Chairman:
It does throw up the point you have highlighted relating to Article
188n and the position if the UK does not opt into some measure.
Thank you for that. Would you like to say anything about the opt-in
relating to the Schengen acquis and whether you see any
potential problems in that regard?
Mr Howe: For my part, I could not see anything
different in the Schengen Protocol as distinct from in the Freedom,
Security and Justice Protocol.
Q235 Chairman:
Is not there an improvement compared to the present position,
in the sense of a widening of the UK's freedom, in the sense that
we are no longer obliged to take part in proposals or initiatives
building on existing areas of the Schengen acquis into
which we have opted?
Mr Howe: This is a reference to the new Article
5, paragraph 2?
Q236 Chairman:
Yes; exactly. Page 111 in our bundle.
Mr Howe: I think I would agree with that, because
there is an additional opt-out which is conferred there.
Q237 Chairman:
Perhaps just going back on one point on the basic Amsterdam Protocol,
there is the further safeguard, is there not, for the United Kingdom,
and indeed for any country, that in the case of the United Kingdom
if it is opted in and there was some fundamental change in the
proposal is there not then the emergency brake available to the
United Kingdom?
Mr Howe: Yes. The emergency brake would be available
in the criminal area, in the areas to which the emergency brake
applies.
Q238 Chairman:
Perhaps we could move on to the third question, the detailed enumeration
of areas of competence under the new Chapter IV in criminal law
matters. How do you see that; is that a widening, is it an improvement
and in what respects?
Mr Howe: I think in some respects it is a widening
and in other respects it may be regarded as a sort of intensification
of the more broadly-defined definition. The existing starting-point
is Article 31 of the Treaty on the European Union and the new
benchmark is really Articles 69e and 69f. There is some expansion
of the areas of criminal law to which the minimum rules can be
applied.
Q239 Chairman:
Are there any particular ones that you want to identify?
Mr Howe: The existing Article 31e is progressively
adopting measures to establish the minimum rules relating to the
constituent elements of criminal acts and penalties in the fields
of organised crime, terrorism and illicit drug trafficking. Article
69f is terrorism, trafficking in human beings and sexual exploitation
of women and children, illicit drug trafficking, illicit arms
trafficking, money laundering, corruption, counterfeiting of means
of payments, computer crime and organised crime. There is a specific
expansion there. Of course, the other general expansion is Article
69f(2), which we have referred to already, which is criminal measures
in support of other areas of Union policy.
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