Examination of Witnesses (Questions 320
- 337)
WEDNESDAY 12 DECEMBER 2007
Mr Stephen Hockman QC, Mr James Flynn QC and Professor
Alan Dashwood
Q320 Lord Norton of Louth:
Who would identify the sort of problem you have identified?
Professor Dashwood: It could only be the Court
of Justice, as a result of somebody contesting the legality of
being excluded.
Q321 Chairman:
What about 188(l), the Union's ability to conclude an agreement
with one or more third countries or international organisations,
et cetera? What would be the consequences of that article
for Member States not party to enhanced co-operation if the signing
arose out of enhanced co-operation?
Professor Dashwood: This again is speculative
because we have very little experience, but I believe the interests
of non-participating Member States are amply protected by the
Treaty which says their rights and responsibilities must not be
affected. I am pretty sure—although it is not actually stated—that
you could have an international agreement entered into within
the framework of an enhanced co-operation exercise, but the consequence
of that would be that the agreement binds the Union but would
not bind the non-participating Member States. They would be required
to refrain from action that impeded the functioning of the cooperation,
but they would not acquire any additional legal responsibilities.
Q322 Lord Blackwell:
Does the application of the emergency brake—if the UK were
to invoke the emergency brake and the rest of them were then to
proceed by enhanced co-operation, is that a different outcome
than if we simply opt out? Are we in a different position?
Professor Dashwood: Substantially I think not.
We are not participating in an action that others have undertaken.
Q323 Lord Blackwell:
With enhanced co-operation is there not an option that you can
opt in, whereas if we opt out we—
Professor Dashwood: Under the Title IV Protocol
you can opt in to a measure that has already been adopted. You
do not have to opt in at the time the proposal is before the Council.
You can opt in subsequently.
Q324 Lord Blackwell:
For the UK these are the same thing.
Professor Dashwood: In a way it is a belt and
braces for the UK. If we opt in to the proposal and then the negotiation
seems to be developing in a direction which we think might be
damaging to our interests, there is a question that texts do not
answer, whether once having notified we can withdraw our notification.
Arguably we could, but in any event we could fall back on the
emergency brake.
Q325 Chairman:
Can we move forward to border checks, asylum and immigration?
Perhaps one of you would care to outline what you think are the
most significant changes that the Treaty introduces as regards
co-operation in that area, and are there any particular concerns
that you have?
Mr Flynn: I have to say, My Lord Chairman, this
is an area where we felt we were unable to assist you to any great
extent. This is, I am afraid, something that at the level of the
European Committee we have not looked into in any great detail.
I know that you have had evidence from others on this point. We
were concerned at an earlier stage—and it is not directly
coming from the Treaty itself—with the court's proposal
for an accelerated procedure for hearing cases involving the liberty
of individuals and children and so forth, which is before the
Council probably at this very moment, under which a sort of simplified
oral procedure is envisaged. It does not flow directly from the
Treaty, although there is reference to a proposed amendment to
Article 234 requiring the Court to act with a minimum of delay
in relation to persons in custody. I am afraid other than that
we do not have any information we can give you.
Q326 Chairman:
Can we look at civil justice and family law: are you able to help
us on that one—the main changes that it introduces?
Mr Flynn: There are obviously some fairly significant
changes of wording as between Article 65 as it stands at the moment
and Article 65 in the Reform Treaty. Notably the phrase in the
existing Article 65 says that measures that can be taken in the
field of judicial co-operation are civil matters having cross-border
implications in so far as it is necessary for the proper functioning
of the internal market. The phrase now is "particularly when
necessary" so it does not have to be necessary for the proper
functioning of the internal market. The previous article referred
to the good functioning of civil proceedings and promoting the
compatibility of national civil procedure rules, whereas the new
article plainly relates to the adoption of measures—the
new Article 65 in its first paragraph refers to co-operation in
the civil justice field including the adoption of measures for
the approximation of laws and regulations of Member States; so
there is no limitation to civil procedure in the new wording.
The list of areas in which measures may be adopted as set out
in part 2 of that Article is longer than that which appears in
the current version of Article 65. Firstly it refers to mutual
recognition and the enforcement aspect, which we have discussed
in the criminal context. It refers in (g) to alternative dispute
resolution matters and to training in paragraph (h), which is
already a point on which you have had evidence from Sir David
Edward. It is a more widely framed article, and I suppose therefore
one can expect slightly more ambitious proposals from the Commission
under that. Obviously, the opt-out applies. Paragraph 3 of the
Article, which is concerned with family law with cross-border
implications, will continue to be subject to a rule of unanimity.
Our expectation is that that is very unlikely to change, given
the difficulties that we had last year in relation to negotiations
in connection with matrimonial support and applicable law in matrimonial
matters, which died a death, with several Member States violently
opposed.
Q327 Chairman:
Perhaps we can go on to the transitional provisions and the protocol
that deals with that, restricting the jurisdiction of ECJ and
the Commission's powers of enforcement over the existing Title
VI measures for five years unless it is amended. Can you help
us as to what you think would happen in the interim? Are we likely
to see, and is it practical for the existing measures to be re-negotiated?
Perhaps most important, is it likely that it will be obvious when
a measure has been amended?
Professor Dashwood: I think it is unlikely that
any significant number of existing measures will be re-negotiated.
I do believe that there may be difficulty in interpreting paragraph
2 of Article 10. This is Article 10 of Protocol no.10. It says
that the amendment of an act referred to in paragraph 1, (ie,
a previous Third Pillar act), shall entail the applicability of
the powers of the institutions referred to in that paragraph as
set out in the Treaty with respect to the amended act for those
Member States to which that amended act shall apply. That seems
to be saying that if one indeed measured it amended, then the
normal powers of the Commission and the Court of Justice will
apply, and the paragraph says: "To the amended act";
it does not say "to the part of the act that has been amended"
or "to that amendment". The wording seems to indicate
that amending a Third Pillar measure during the transitional period
will have the effect of neutralising paragraph 1. I am not convinced
myself that any amendment, however small, should have this effect.
I think this is an issue, and I think that there is a significant
ambiguity here. There may be difficulty, but it should normally
be possible to say whether an act is being amended, even if the
amendment involves deleting language and adding nothing—that
would clearly be an amendment. It seems to me to be a very radical
consequence that any amendment at all would have the effect of
neutralising paragraph 1. That is one of the provisions that I
find troublesome.
Q328 Lord Blackwell:
It seems to me there may be occasions where the Commission in
effect has a choice of whether it wants to bring in a completely
new piece of legislation or whether it wants to achieve that by
tagging it on as an amendment to something which already has some
relevance to that—and we have seen in the past they can
be quite imaginative in stretching that. It seems to me that that
has consequences because if they amend an existing piece of legislation,
that is by QMV—the emergency brake does not apply and for
us to opt out, it means we have to opt out of the original instrument.
It would be a lot harder for us to resist something that was an
amendment of an existing—
Professor Dashwood: The inoperability threshold
would have to be crossed because that applies under the Title
IV Protocol. Our opting out would have to be judged sufficiently
troublesome to render the original measure inoperable to the other
Member States before the Council embarked on the procedure that
could lead to our being excluded from that measure.
Q329 Lord Blackwell:
Perhaps, conversely, I am looking for ways in which the Council
might seek to get to its measures—overcome resistance, if
you like.
Mr Flynn: In chatting through to prepare for
this session we did see some opportunities for gaming the system,
if you like, or applying a certain amount of pressure. We are
perhaps not very well placed to play the political game and guess
the circumstances in which that might be done.
Q330 Lord Blackwell:
Given what has already been agreed as legislation under the existing
Pillar Three, how much scope does that give to extend that?
Professor Dashwood: I can think of a few measures,
I suppose, but the most famous Pillar Three measure is the European
arrest warrant. Most of those measures are ones that the United
Kingdom has been quite enthusiastic about and would want to remain
part of; so I think in practice the likelihood of our not wanting
to be bound by an amendment is perhaps limited. This is not a
provision that has been put in only for the benefit of the United
Kingdom; we are by no means the only Member State, for instance,
that has not given notice under Article 35 of the Treaty of the
European Union with respect to references for preliminary rulings;
there are other Member States. This seems to be a sensible kind
of measure that provides an opportunity for the Member States
to get used to the idea that the institutions will in the future
have powers with respect to acts that have been adopted under
very different institutional and procedural provisions.
Q331 Chairman:
The Charter of Fundamental Rights: what impact do you think Article
6, which declares the binding nature of the Charter, will have
on the protection of fundamental rights in the freedom, security
and justice measures, if any?
Mr Flynn: It is a difficult question. I think
we find the first part of Article 6 to be a little circular because
the Charter is supposed to be declaring what is already there.
It is a statement that one finds, but fundamental rights in the
Charter have the same legal value of the Treaty as they are recognised,
but the whole purpose of the Charter was to make clear what was
supposed to be already there in the Member States. It is a little
hard to know what the impact of this provision will be. I must
confess I cannot remember the extent to which the Court itself
has already drawn on the Charter. I know the Advocates General
have made fairly frequent reference to it and I believe in one
or two judgments of the court it has been referred to by way of
confirmation rather than as a source of any particular right.
My own view is that one might expect to see references to it possibly
in judgments but it is unlikely to change the picture very much.
Q332 Chairman:
Perhaps we can go on and deal with the Protocol: what effect does
the Protocol have on the application of the Charter to the UK?
Professor Dashwood: I think it is a belt-and-braces,
myself. On one view of the Charter, which is mine but not universally
held, it does not create any new rights; it simply records and
proclaims rights that are derived either from EU law through the
jurisprudence of the Court of Justice, or from national law, because
it refers to national rights as well as EU rights. That understanding
of the Charter is recorded in one of the recitals to the Protocol,
which presumably all the Member States must agree with even if
the Protocol only exists for the benefit of the United Kingdom—I
think Poland has dropped out. But they must agree with this because
it is part of the primary law in the Union. The recital states,
that the Charter reaffirms the rights, freedoms and principles
recognised in the Union, and makes those rights more visible but
does not create new rights. One view, which I believe is the correct
one, is that the Charter does not enlarge the possibility for
acts of the Member States or indeed of the Union's institutions,
to be challenged in courts, on a proper understanding of the Charter,
read in the light of the explanation which will now be specifically
mentioned in Article 6. If you take that view, then you have got
your belt, and the Protocol is simply a pair of braces. If you
take the different view, that maybe the Charter does provide something
by the way of additional rights, then you can say that at least
as far as the United Kingdom is concerned it must be interpreted
as not doing so, in which case the Protocol would have some legal
consequences. My own view is that we do not need to take that
second step. The Protocol is not an opt-out for the United Kingdom;
it is an interpretative protocol, and this is how the Charter
must be interpreted at least in the United Kingdom.
Q333 Lord Lester of Herne Hill:
If I could take the two questions together, I put this to previous
witnesses. It seems to me—and I wonder whether this is right—that
the fuss about the Charter is a fuss about very little in terms
of law, as distinct from politics. As a matter of English law,
as long agreement as the 1970s Lord Reid in Waddington v. Miah
[1974] 1 WLR 683 said of an argument about retrospectivity of
immigration legislation that it would be unthinkable in the UK
to enact a law that was in breach of international human rights
conventions by which we were bound even though we had not made
them part of our system. In Garland v. British Rail, an
EU case in 1981, Lord Diplock said that there is a presumption
that our statutes will conform to our Treaty obligations even
if they have not been incorporated; and asked a fortiori
whether that was true of a binding directive under EU law. As
an advocate, it seems to me that if I turn up in an English court
and I want to rely upon soft law, ie, the ILO Convention for collective
bargaining, which is not in the European Convention on Human Rights,
as an aid to interpretation of an English statute on the basis
of those presumptions, it is up to the judge whether to allow
me to do so. The fact that it is in the Charter does not seem
to me—quite apart from the Protocol—to add or subtract;
the Charter is a collection of international obligations already
binding upon all Member States who have signed up to all these
international human rights committees. It does not seem to me
that there is anything new in the Charter that is not already
in the international; Treaty obligations and in existing EU law.
Am I wrong?
Professor Dashwood: No, you are right.
Mr Flynn: That is really what we are saying.
If it is not adding anything then you do not have to face the
question you are asking. If it does add something, as Professor
Dashwood said, then it may just be that this Protocol has some
effect limiting what the judge you would be addressing can do.
Professor Dashwood: It is my view that it does
not add anything, but there is a view that maybe it does. I do
not find language in the Charter to support that.
Q334 Lord Blackwell:
Can I pose a counter view, which is on what scope it might or
might not add to the role of the ECJ to interpret laws that might
then affect the UK; and I am thinking particularly about social
measures in the Charter to do with social rights? The UK's Protocol
says that those can only be interpreted to the extent that they
are already part of UK law, so UK law, if it wants to ratify this
Treaty, will embrace anything that is European law because we
will have incorporated European law into UK law. Could it not
be that if there is a measure which has been adopted in an area
of shared competence, for example in social policy, where there
is some degree of doubt as to what this legislative measure means
and encompasses, the ECJ would be in a position of interpreting
what that directive meant and would be able to pray in aid the
measures of the Charter of Fundamental Rights and interpret it
in a way that it saw fit to interpret that social policy?
Professor Dashwood: This has been a particular
concern in the United Kingdom. It seems to me that if you look
at the language of Title IV, "Solidarity", in the Charter—what
it says, for example, about the right to belong to a trade union
and the right to strike is extremely anodyne. It refers to EU
law and to international law and it simply says that this right
exists. There is no doubt that the right does exist in the UK.
I do not think that if the Court of Justice were inclined to develop
the right to strike by talking about things like secondary picketing
and all those aspects of old-fashioned industrial relations, it
would not gain anything from the Charter if it wanted to do that;
it would have to range more widely and look at the international
agreements which Member States are party to, and where I do not
think you will find anything particularly helpful—or to
what it calls the constitutional traditions of the Member States.
Again, I doubt if there they would find there was a sufficient
consistent experience that could be drawn on. I do not think the
language of the Charter would be any help at all for the Court.
Q335 Lord Lester of Herne Hill:
To pursue the same question in a slightly different way, my understanding—and
I will be corrected if I am wrong—is that the Luxembourg
Court, like the British courts and like the Strasbourg Court,
illuminates its reasoning process by having regard not only to
the text before it, but also to relevant international treaty
obligations, in order to establish the context, as it were, in
making policy choices. That has nothing to do with the Charter;
that has been going on for decades. It has been going on in the
United Kingdom—the roamer rights case, which I was in, is
a very good example. They looked not only at customary international
law but they looked at a lot of conventions and covenants by which
we were bound in order to give judgment. As I understand it, the
same is true in Luxembourg. They will look at the ILO Convention
to see how the principle of equality applies and will look at
these instruments. Is there anything new in the methodology, if
instead of looking at the Treaty they look at a charter that gathers
the Treaty obligations into one place?
Professor Dashwood: I do not think they would
find the Charter nearly as useful as it would the international
agreements to which the Member States are parties, or the constitutional
positions of the Member States, in order to guide it in applying
these principles in detail, because the language of the Charter
is simply recording that the European Union thinks these rights
are important.
Q336 Lord Jay of Ewelme:
Mine is a rather more general question. As this discussion has
shown, the Treaty framework is becoming increasingly complex as
we try to reconcile the need for binding rules to preserve the
heart of the original Treaty and in particular the Single Market,
and at the same time accommodate a larger and increasingly variegated
European Union of 27. From a legal point of view do you think
it will be workable?
Mr Flynn: I suppose I would like to say on behalf
of the Bar Council that I am sure we will rise to the challenge.
It really is getting a bit ridiculous to my mind and it is a complete
mixture of the different schemes, different compositions and different
institutional arrangements. Speaking personally rather than as
a lawyer, I find it regrettable it becomes a subject for specialists.
Professor Dashwood: My answer to Lord Jay's
question is that I do think it is workable. I am endlessly optimistic
about the European Union. We always seem to find a way of making
it work. Through all the enlargements, we have been told that
it is going to become unworkable, and somehow we have managed
to struggle through. I think that a measure of differentiation
is a price that we have to pay for the great enlargement, which
I think was a very necessary thing. The European Union could not
have failed to respond to the new political and security situation
in Europe that resulted from the break-up of the Soviet Union.
If the price of this is rather complicated legal arrangements,
so be it; we will just jolly well have to make the best of it!
Q337 Lord Blackwell:
The Government's response to those who have concerns about giving
the EU competence to legislate by QMV in these areas we have been
talking about—civil and criminal matters—has been:
"Do not worry; we have our opt-out and the emergency brake;
and therefore we are not really participating in the QMV legislative
process here." Your responses to a number of questions have
been that it is unlikely that we will regularly use that; that
it would be difficult to use the emergency brake too often and
we would not want to use the opt-outs. If it were the case that
the rest of the EU wanted to proceed at a level of integration
of their criminal and civil systems that we were not happy to
participate in, and therefore the enhanced cooperation and other
things meant that they went off effectively on their own, how
sustainable in practice do you think it would be that we could
retain a wall between our legal system here and what evolves on
the Continent, or would it become unsustainable?
Mr Hockman: Could I offer a comment on the criminal
side? Forgive me if it sounds a little bit like a politician's
answer to a political question. Can I question the premise of
it? On the criminal side the core of this is empowering the Community
to deal with problems that everybody recognises are both very,
very important but also have an international dimension, whether
it is cross-border crime on the one hand or environmental issues,
particularly climate change on the other. If you take climate
change, the need for new regulatory measures to address that problem,
I would have thought, is increasingly widely accepted. If we do
not empower international institutions to deal with those issues,
then that will be a problem. I would question, on the criminal
side—I say nothing about other areas—whether we will
actually wish, as a matter of policy, to maintain the wall.
Professor Dashwood: I did not mean to give the
impression that I do not think the UK will be able to take advantage
of these various mechanisms. I do think that the emergency brake
is going to be something that is rarely used, because that is
what experience so far would indicate. I expect the UK to make
quite vigorous use of the opting-in measures, as it has in the
past; but, as Stephen has said, an awful lot of these Title IV
measures are ones in which the UK has a great interest. I think
we should see Title IV not only in terms of the extraordinary
degree to which we have been able to protect our common law heritage
by way of these special mechanisms, but also as an opportunity
to get the kind of legislation on to the statute book which we
would very much like to see there.
Chairman: There are no more questions. Thank
you very much indeed for coming and giving your time this afternoon.
You will of course get a transcript.
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