Examination of Witnesses (Questions 260
- 279)
WEDNESDAY 5 DECEMBER 2007
Mr Martin Howe QC
Q260 Chairman:
I was going to say, just to take the areas of civil law, family
law, criminal law, do you know if there are specialists or judges
who have had experience of those areas?
Mr Howe: I could not answer that question on
the background of the judges at the Court.
Q261 Chairman:
Is there any way in which one could ensure, or hope, that judges
came in with criminal experience; that is, practitioners?
Mr Howe: Given the current appointments system,
it is quite hard, short of hoping that some Member States may
take the need for the Court to have a broad range of judicial
experience into their own individual nominations.
Q262 Chairman:
One of the features of the Treaty (I am not sure where the provision
is) is for a committee of seven wise persons to vet potential
appointments and it may be that this is a matter to which they
should be asked to, and no doubt will, give attention?
Mr Howe: Yes; quite possibly.
Q263 Chairman:
How one influences particular countries to make particular proposals
is a different matter, of course. Let us go on then to the next
question, which we touched on, the jurisdiction of the European
Court and the five-year transitional Protocol, which restricts
the jurisdiction in respect of existing Title VI measures, under
the third pillar, for a period of five years, unless and until
the measure is amended, and gives the UK, at the end of five years,
an option to opt out of all existing non-amended measures, in
which case, however, there is a potential answer back from the
Community side if that has undermined, I think, the operation
of the measure?
Mr Howe: This is Article 10 of the Protocol
on transitional provisions which contains this particular five-year
period. It strikes me that the impact of the transitional provisions
is it makes it clear that after the five-year period the existing
corpus of third pillar measures, to which this country is a party,
will be converted into full Community law first pillar measures.
That is the combined effect of Articles 9 and 10 of the Protocol
on transitional provisions. Article 9 preserves their existing
legal effect; so, for example, a framework decision on the European
Arrest Warrant would continue for a five-year period to be an
"intergovernmental measure" and would then convert into
being fully part of Community law at the end of the five-year
period. This then puts a bit of a dilemma on the United Kingdom,
if we think it is a good idea to continue participating in that
area, in that it would not be open to us to continue to participate
on the existing intergovernmental basis. We have a "take
it or leave it" choice of pulling out or accepting the full
jurisdiction of the Court and then the measure itself will become
directly effective within our own legal system according to the
ordinary rules which have been developed by the Court of Justice
on direct effect. As far as I can see, our right to opt out at
that point is unqualified but we can then be lumped with the costs
occasioned by our withdrawal.
Q264 Chairman:
Presumably the intention is, have I understood it correctly, that
by the end of the five-year period the existing measures will
have been considered and the view will either have formed that
they are suitable for direct effect or they will have been amended
so as to make them more suitable? In either case it is hoped that
all States will regard them appropriate for enforcement under
the new Union basis, and if we take a different view we can opt
out, although with the downside that you have mentioned.
Mr Howe: Yes. Five years is not necessarily
a long time horizon, in the timescale of the Community legislative
process.
Q265 Chairman:
So there is a possibility that it will not have been completed
and we may find ourselves, at the end of the five years, presented
with some unsatisfactory choices?
Mr Howe: Indeed; yes.
Q266 Lord Wright of Richmond:
My Lord Chairman, can I ask, we cannot pick and choose which measures
we opt out of; the word in the question is "all" and
I take it that it means all, does it?
Mr Howe: I must say, I had read this as giving
us a pick and choose on individual measures.
Q267 Lord Wright of Richmond:
The question says the UK may choose to opt out of all existing
non-amended measures; that means all, you cannot pick and choose?
Mr Howe: I had not read Article 10 of the Protocol
that way. Actually, sorry, yes, at paragraph 4: "At the latest
six months before the expiry of the transitional period ... the
United Kingdom may notify to the Council that it does not accept,
with respect to the acts referred to in paragraph 1," that
is the transitional acts, "the powers of the institutions
referred to in paragraph 1 as set out in the Treaties. In case
the United Kingdom has made that notification, all acts referred
to in paragraph 1 shall cease to apply to it as from the date
of expiry of the transitional period ... " Then: "This
subparagraph shall not apply with respect to the amended acts
... " I think you are right, it is in the wording, it appears
to be all or nothing.
Q268 Lord Wright of Richmond:
It is all or none?
Mr Howe: Yes.
Q269 Chairman:
That is right. One has not got a feel at the moment for how many
acts there are, but it sounds improbable, on the face of it, that
the United Kingdom would want to opt out of all acts which happened
to be under-amended?
Mr Howe: I confess I had not read it that way,
simply because it would not occur to me that "all or nothing"
was a sensible way of reading it. Certainly the wording does say
that.
Q270 Chairman:
Who would have jurisdiction to determine then whether "all
acts" means all acts?
Mr Howe: I suppose it would be the European
Court. Supposing one sent in a notification that related to some
acts but not all acts, I suppose the European Court might then
say, "Ah, that's a void notification because it doesn't relate
to all acts," and you are caught by everything.
Lord Wright of Richmond: My Lord Chairman, I
am reminded of Resolution 242 in the United Nations, about which
there was considerable argument as to whether the French version
of "all the territories" was tous les territoires
or tous territoires; "les" being of very
considerable importance. I am sorry; that is rather beyond the
scope of this Committee.
Chairman: It will be very helpful when the problem
arises. Thank you for that exchange.
Q271 Lord Burnett:
Did I understand you to say that if we opted out in five years'
time we would pay the costs of withdrawal; is that what you said?
Mr Howe: Yes. That is in Article 10, paragraph
4, of the Protocol on transitional provisions.
Q272 Lord Burnett:
What are those costs likely to be? How will we measure those costs?
Mr Howe: It says: "The Council, acting
by a qualified majority on a proposal from the Commission, may
also adopt a decision determining that the United Kingdom shall
bear the direct financial consequences, if any, necessarily and
unavoidably incurred as a result of the cessation of its participation
in those acts."
Q273 Chairman:
There is quite a restriction on the financial consequences by
the words "necessarily and unavoidably" is there not?
Mr Howe: Yes.
Q274 Chairman:
Just going back to Lord Wright's very good point on Article 4,
paragraph 1, it may be we would like to look at paragraph 5 of
Article 10?
Mr Howe: Yes, of course, that contains a power
to go back in, as it were.
Q275 Chairman:
And here it does not have the word "the". It is a very
close analogy with the UN Resolution. It looks as if you come
out as a whole but there is a right to come back in?
Mr Howe: Yes. There is a right to come back,
so it looks as if, yes, you can opt out of all acts and come in
on individual acts; you choose. Of course, if you do that, it
has to be on the basis that they are directly applicable, a fully
effective part of it.
Q276 Lord Burnett:
If we do opt in, cherry-pick the things we want to come back in,
is there any cost implication to that?
Mr Howe: No; but I think there are certain general
provisions about costs in the Protocol itself. There is nothing
specific there. There is a similar provision about costs somewhere
else. I am sorry, I cannot remember where.
Q277 Chairman:
Shall we move on. What impact, if any, will Article 6 of the Treaty
on the European Union, which declares the binding nature of the
Charter of Fundamental Rights, have on the protection of fundamental
rights in relation to freedom, security and justice measures?
It may be you will want to take that in conjunction with the next
question ten, what is the effect of the Protocol on the application
of the Charter of Fundamental Rights to the UK?
Mr Howe: It strikes me that the most important
impact is that, in effect, the jurisdiction to decide on compatibility
with fundamental rights in that area is likely to shift substantially
from the Strasbourg Court to the Luxembourg Court. The reason
for that being that, existing third pillar measures in that area,
intergovernmentally adopted, the Member States then implement
them and their compatibility with the European Convention on Human
Rights is then a matter between the Member State and the Strasbourg
Court within the confines of that Convention. Whereas the effect
of Article 6, in the binding nature of the Charter, taken in conjunction
with the fact that those measures will come under the general
jurisdiction of the European Court and be supra-national in nature,
means that it will be the Luxembourg Court which will be interpreting
and applying the EU Charter, albeit in this area it is primarily
the part of the EU Charter that is based on and derived from the
ECHR. One may then get a difference in approach.
Q278 Chairman:
This would be a ground for challenging measures passed under Title
IV, say, in the criminal area, for infringement of one of the
fundamental rights, and this could come in front of the European
Court of Justice?
Mr Howe: Yes. Of course, there is a more complex
question, can you also challenge such measures in the Strasbourg
Court.
Q279 Chairman:
How is that going to work, bearing in mind the interrelationship,
I think under another provision, potentially, between the Union
and the European Convention?
Mr Howe: I think if the Union joins the Convention
then it will sort of work, because, in effect, I suppose one could
challenge decisions of the Luxembourg Court at Strasbourg. If
the Union does not join the Convention, if we have this sort of
position where the Member States are all contracting States to
the Convention but the Union itself is not a party then the acts
of the Union themselves, the institutions themselves, seem to
be outside the purview of the jurisdiction of the Strasbourg Court
because they are not the acts of the Member State. There have
been differences in approach. The Tillack case, the Belgian journalist,
he was reporting on fraud inside the European Union's Anti-Fraud
Office, and they got the Belgian police to raid his home and journalist
office and raid his papers. He challenged these measures through
the Community Courts and failed, but recently, I think, he has
won his case in Strasbourg, and he could do that because it was
the Belgian police taking these steps. I suppose it illustrates
that the Luxembourg Court may have a different emphasis when it
comes to the interpretation and application of these rights, because
it will give a higher priority perhaps to the Union's objectives
compared with the rights of individuals. This might not be an
improvement, in practical terms, when it comes to the protection
of fundamental rights.
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