Examination of Witnesses (Questions 297
- 299)
WEDNESDAY 12 DECEMBER 2007
Mr Stephen Hockman QC, Mr James Flynn QC and Professor
Alan Dashwood
Q297 Chairman:
Gentlemen, good afternoon. Thank you very much for coming to give
evidence to us on the impact of the Reform Treaty on the area
of freedom, security and justice. I should say at the beginning
of this session that Lord Mance, Lord Lester and Lord Wright of
Richmond have declared interests that are in the Register of Interests
and available to any witnesses and members of the public who wish
to see them. You have had an indication of the areas that we want
to cover; is there anything you want to say before we move to
the questions?
Mr Flynn: My Lord Chairman, perhaps I could
say who we are and introduce us to the Committee. I am Co-Chair
of the European Committee of the Bar Council and I am accompanied
by Stephen Hockman on my far left, who is a former Chairman of
the Bar and an experienced practitioner; and Professor Alan Dashwood,
who is Professor of European Law in the University of Cambridge
and who also has the rare distinction of being a practitioner
in some of the areas that your inquiry will focus on, both as
a former member of the Council's Legal Service and now at the
Bar. I thought I should just say for the record, if I may, that
the Bar Council is the governing body for the 15,000 barristers
in independent and employed practice, and the European Committee
is one of the representative committees of the Bar Council, with
a mandate essentially to follow what is going on in Brussels,
if I could use that as shorthand, and respond to consultations,
for which purpose we draw on specialist Bar associations and other
expertise available within the Bar with the aim of providing practical
input, with the interests of practitioners and the legal profession
at the forefront of what we do. That is where we are coming from.
Q298 Chairman:
We will move to the questions. Can we first look at the question
of the United Kingdom opt-in that we have acquired in the general
area and the further opt-in provided by the Schengen Protocol.
Can you indicate how the position of the United Kingdom will differ,
if the Treaty proceeds, from the present position; and do you
foresee any problems in the various proposed protocols?
Professor Dashwood: I have been elected to deal
with this question, Chairman. If I may begin with the Title IV
Protocol, there are two significant changes that will be made
in this. First of all, the extension of the Protocol to cover
the subject matter which currently falls within Title VI of the
Treaty on the European Union, the so-called Third Pillar, will
have a broader scope than at present. The other change is one
that goes to the issue of locking-in, which is referred to in
question 3. It has been a question whether the United Kingdom's
opting-in mechanism applies to proposals for the amendment of
Title IV measures that it had previously opted into. It had always
been the United Kingdom's position that the mechanism did apply,
but it is believed that at least the Legal Service of the Council
may not have been in agreement with that, although I am not aware
of this ever having become an issue in practice. At all events,
the new Article 4a of the Protocol will resolve that ambiguity
by extending the opting-in mechanism to amending measures, but
at a certain cost. Article 4a(2) will lay down the procedure where
the Council determines that the United Kingdom's non-participation
in the amended instrument makes that instrument inoperable for
other Member States (page 61 in the October text, point 20 of
Protocol 11). Article 4a states that the opting-in mechanism will
in the future apply to amendments, and then paragraph (2) is about
what should happen if the Council judges that the UK's non-participation
in the amendment would make the application of the measure in
question inoperable for the other Member States or for the Union.
It is believed that the word "inoperable" was intended
to set out a high threshold, but of course that is a matter for
interpretation; it will only be if the degree of inconvenience
for other Member States passes that threshold that the Council
will set in motion the procedure which, if the United Kingdom
cannot be persuaded to opt into the amendment, will result in
its exclusion from the original measure. Pursuant to paragraph
(3) this could have the consequence of the United Kingdom's having
to cover the direct financial consequences, if any, that would
result from reorganising things so that they can be comfortably
applied to 26 Member States or 25 Member States instead of 27.
Q299 Lord Wright of Richmond:
Professor Dashwood, I think it is thirty years since we first
met in Luxembourg!
Professor Dashwood: I think it must be, yes.
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