Examination of Witnesses (Questions 120
- 139)
THURSDAY 6 DECEMBER 2007
Professor Sir David Edward KCMG QC
Q120 Lord Tomlinson:
If I may ask a slightly tangential question, in relation to competences,
is there anything in any of the revised Treaty provisions that
changes the concept of this being a community of conferred competences,
that it has no competence that it is born with, there are only
conferred competences that have been willingly, voluntarily given
to the Community by the decision of Member States?
Professor Sir David Edward: That seems to me
to be expressly provided for. It is very clear that it is based
on the principles of conferral, subsidiarity and proportionality.
Q121 Chairman:
I was thinking that the fact that the Czech Government felt it
necessary to ask for a specific protocol on this, Protocol 8,
to strengthen the concept of the shared competences suggested
that in the IGC itself there must have been other countries who
took a rather lighter view of this. Does anybody know, do you
know, why they felt it necessary?
Professor Sir David Edward: No, I am not conscious
of that.
Q122 Lord Mance:
May I ask a supplementary question on different aspects of competences
and that is the international agreement competence under Article
188l which now provides, or will provide, that the Union may conclude
an agreement with one or more third countries or international
organisations where the Treaties so provide or where the conclusion
of an agreement is 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.
Two questions. Firstly does that expand international competence
compared with the present jurisprudence? The case I think of is
the Lugano Convention case, but there may be others.
Professor Sir David Edward: It does not occur
to me, but I have to admit it is not a problem to which I have
applied my mind.
Q123 Lord Mance:
Second, do you have a view as to how it would work in relation
to a matter within Title IV, where the UK had not opted in?
Professor Sir David Edward: Where the UK has
not opted in, then it seems to me that in all probability the
Union has nevertheless power to conclude such agreements.
Q124 Lord Mance:
Binding the UK in an international level?
Professor Sir David Edward: Not binding the
UK in so far as the Union purported to act purely under Title
IV and sought to bind the Union in relation to Title IV matters
out of which the UK had opted.
Q125 Lord Mance:
So that if we had not opted into the Lugano regulation, for example,
then it could not bind us?
Professor Sir David Edward: That is what I understand
is the position.
Q126 Chairman:
Are we talking mainly there about immigration, security and cross-border
crime? Is that the area?
Professor Sir David Edward: The Lugano example
is civil cooperation, recognition and jurisdiction. So it could
apply in any field. It could apply certainly in crime and certainly
in asylum; any Title IV field.
Q127 Lord Mance:
Are there any major changes affecting the jurisdiction of the
European Court of Justice and, in particular, in the area of Freedom,
Security and Justice?
Professor Sir David Edward: If I may begin with
other aspects, there is a significant extension (or acceleration)
of the power to fine in two respects. First of all, in order to
invoke the Court's power to fine, the Commission does not first
have to repeat the reasoned opinion procedure. So it can come
more quickly from the stage of a finding of a breach of an obligation
to a request for the Court to fine. More particularly, there is
power to fine in respect of failure to implement directives and
that can be requested by the Commission, as I understand it, directly
in the application to the Court which asks for a finding of a
failure to implement a directive. I think that would ensure that
the pressure on Member States to implement directives would be
strengthened. Secondly, there is an extension of locus standi
of individuals directly affected by measures which require no
national implementation and that could potentially give rise to
a significant extension, at least of the workload of the Court
to the extent that the legislative and regulatory activity of
the Union directly affects individuals. By "individuals"
one must bear in mind that the individuals in question may be
multinational corporations as well as small persons. There is,
in addition, jurisdiction in respect of the acts and failure to
act of bodies and agencies, which is new. The action for failure
to act is a very little used jurisdiction. It could become significant,
if a body or agency failed to take some action which the individual
felt should be taken. Then there is the jurisdiction in relation
to the situation which arises where the Union wishes to threaten
a Member State which is in serious breach of its obligations;
the preliminary to suspension or expulsion. One would hope that
that simply does not occur. Lastly, but this is not an extension
of jurisdiction, there is the question of the obligation to proceed
fast in relation to persons in custody. There has been a significant
number of cases which do affect persons in custody, leave aside
freedom, security and justice.
Q128 Lord Mance:
What does that arise under?
Professor Sir David Edward: Any question under
the internal market rules on free movement of persons when a person
is in custody. For example, the case of Oteiza Olazabal (Case
C-100/01) raised a question about an alleged Basque terrorist
who had been in custody in France. This is not new. As regards
freedom, security and justice, obviously the effect of bringing
freedom, security and justice fully within the Community system,
as I have explained in my paper to Sub-Committee E, does have
the effect of bringing, in principle, all the acts of the Union
under that title within the jurisdiction of the Court of Justice,
except in so far as Member States have opted out and subject to
the transitional provision.
Chairman: Lord Mance mentioned workload
and I know he will probably want to draw you out on that in a
little while but first I want to ask Lord Maclennan of Rogart
to pose a question.
Q129 Lord Maclennan of Rogart:
Although the Treaty appears specifically to exclude the jurisdiction
of the Court in respect of foreign and security policy, concerns
have been expressed in certain quarters that there could be some
doubt as to whether that would be regarded as excluding from consideration
all matters touching foreign and security policy. I wonder whether
you could give a view about that.
Professor Sir David Edward: To be fair, I have
not really considered this, but at least it must be the case that
the Court may be faced, as it is faced at present, with the question
of whether a particular issue falls within foreign and security
policy or falls within some other competence of the Union. That
is a normal part of the Court's jurisdiction. Of course, were
the Court to hold that it fell within another competence and therefore
was subject to its jurisdiction, it might thereafter be alleged
that the Court was "meddling" in a matter from which
it was intended to be excluded.
Q130 Lord Maclennan of Rogart:
I wonder whether, from your experience, you would be able to indicate
whether the jurisprudence of the Court indicates a propensity
to stand back or a propensity to creep forward where there appear
to be both considerations or perhaps dual considerations.
Professor Sir David Edward: I was there for
14 years and 12 years in the Court of Justice and I detected no
propensity one way or the other for the very simple reason that
I signed more than 1,300 judgments and I was rapporteur in more
than 300 cases. I did not have time and none of us had time to
develop propensities.
Q131 Lord Powell of Bayswater:
With all the diffidence of a non-lawyer, is it not the case that
the Court has acquired quite considerable additional powers of
judicial review over the operation of many of the Community's
institutions, including the European Council itself? Do you think
that is extremely significant or would you say it is going to
be very much a rare exception that it uses those powers?
Professor Sir David Edward: That is totally
unforeseeable. The European Council, up to now, has not actually
had powers of this nature and we must bear in mind the belief—it
is not so strong in this country but certainly is in Germany—that
it is quite unacceptable that any body should have a power which
it can exercise without any possibility of judicial control. In
so far as powers are conferred on the European Council, then probably
the majority of Member States would require that there should
be a jurisdiction of control.
Q132 Lord Mance:
You were mentioning propensities and I wondered whether you could
give us an idea of the general background and areas of expertise
of members of the Court. We of course have your CV and I was very
pleased to see your appearance in a case which, you will be interested
to hear, was being cited to us yesterday where you had a considerable
victory, McKew v Holland & Hannen in 1965. Leave that
aside. Can you give us a view as to the general background and
expertise of the Court? What I am going to follow on and ask is
how far there are at the moment practitioners in the various fields,
which will expand the fields which will apply under Title IV.
Professor Sir David Edward: I do not have the
statistics with me, but it would be true to say that when I went
there, there was a predominance of public lawyers and professors.
Latterly the tendency has been for the Member States to appoint
professional judges but also in general to appoint judges from
constitutional or public law courts. The difficulty to which I
have alluded is that to the extent that you enlarge very extensively
the competences of the Court of Justice and in particular require
it to give rulings, particularly at high speed, on a range of
issues, then it is extremely difficult for that jurisdiction to
be exercised, if the Court does not contain people who are accustomed
to dealing with that kind of question. The point which I have
made in my written evidence to Sub-Committee E is simply that
in dealing with references, and I have had experience of this,
you may not get any assistance from the referring judge. You may
frequently get little assistance or perhaps no appearance from
the parties in the national court. You may get no assistance from
the government of the state concerned and sometimes the assistance
you may get from the Commission is limited for one very simple
reason, that the Commission has to plead in the language of the
case. Therefore as the legal agent who appears for the Commission,
particularly in cases in what are sometimes called the more exotic
languages, you have to find a member of the Legal Service who
can speak that language and he or she may know nothing about the
area concerned. So you may not get a great deal of assistance
even from the Commission and this does impose, or will impose,
a very significant strain on the Court.
Q133 Lord Mance:
Do you have any proposals or thoughts which, in the longer term,
might be considered in this area?
Professor Sir David Edward: Thoughts. Personally
I have always wondered whether the Brussels Convention, civil
jurisdiction, really is appropriate for the jurisdiction of the
Court of Justice and whether it might not have been better to
create a tribunal consisting of civil judges of the Member States
who would perhaps sit once every three or six months to deal with
the relatively small number of cases arising and their expertise
would be sufficient to deal with it. They would have a much clearer
understanding of the practical problems of jurisdiction. Perhaps
that is an idea which might be extended but it is very, very far
from what people at the moment are thinking about.
Q134 Lord Mance:
Would that involve ad hoc judges or judges from supreme courts?
Professor Sir David Edward: That is what I envisage.
It could be a way of dealing with jurisdictions that require specialist
knowledge and require quick answers. There are dangers in that
as well, because, of course, as we know, specialist judges tend
not to see things in a wider context, so there are dangers both
ways. May I just say one thing? It is highly regrettable that
more time is not given to thinking how the Court should be structured,
how it can work. This is the Cinderella of all inter-governmental
conferences.
Q135 Lord Mance:
Can you just help us on the transitional Protocol in regard to
the opt-out from non-amended measures and the provision that excludes
the application of the Court's jurisdiction over existing Title
VI measures for five years unless a measure is amended, giving
the UK at the end of the five-year period a right to opt out of
all existing non-amended measures but then, as I understand it,
a right to opt back into specific ones? Do you see any potential
problems here? Will it be clear?
Professor Sir David Edward: I confess I find
it extremely difficult to get my head round this. My understanding
of some of these provisions is slightly like observing a satellite
going round the moon: now you see it, now you don't. That is slightly
my understanding of some of these provisions: I understand for
a brief period and then I seem not to understand any more. As
I understand it, what we are talking about is a situation where
the UK has opted in to a particular provision. That provision
is then amended and that creates the jurisdiction of the Court
of Justice, even for the UK. The question then arises as to what
"amended" means. My answer to that would be that I would
be very surprised if the UK were to find itself in a position
of discussing a proposal which affected a measure to which it
had opted in without taking care to find out whether people regarded
this as an amendment or not If it is an amendment and the UK did
not like it, then the answer is to opt-out of the amended proposal.
Q136 Chairman:
In the final analysis the Government will find itself having in
some instances to make the difficult choice of deciding whether
the value of the measure is such that it is important to opt in
and whether that outweighs the disadvantages of then being subject
to the European Court's jurisdiction. So it's political judgment
in the end.
Professor Sir David Edward: This is the nature
of opt-outs.
Q137 Lord Mance:
May we just move on then to enhanced cooperation? The Treaty will
facilitate closer integration in criminal law by groups of Member
States in certain circumstances and where the emergency brake
has been applied by one Member State and other groups wish to
go ahead, that is Article 69e (3) and 69f (3). Do you see any
dangers or difficulties in particular for the Court in promoting
different levels of integration in this way?
Professor Sir David Edward: I have to confess
that, as the Union has reached 27 and is liable to reach more,
variable geometry, if you like so to call it, is almost inevitable.
However, there will be the disadvantages of unequal application
of the law and unequal application of the Court's jurisdiction.
The only point I would make in this connection is that under Article
10(2) of the new Treaty on European Union, a decision authorising
enhanced cooperation should be adopted by the Council as a last
resort, when it is established that the objectives of such cooperation
cannot be attained within a reasonable period by the Union as
a whole. Therefore, it seems to me that you have a situation where
the enhanced cooperation is not just something lightly adopted
or conceded to a group of Member States; there is quite a significant
hurdle to be overcome before the enhanced cooperation would be
authorised.
Q138 Lord Powell of Bayswater:
I want to come on to the Charter of Fundamental Rights and the
question of what, if anything, Article 6 TEU actually adds to
the price of bread in this respect? Does it do more than simply
confirm a state of affairs?
Professor Sir David Edward: I think it does
and, if I may say so, it is of some significance. It is useful
to remember what the Charter actually says. In Article 51 it says
that "The provisions of this Charter are addressed to the
institutions, bodies, offices and agencies of the Union"—addressed
to them. "They shall therefore respect the rights, observe
the principles and promote the application thereof in accordance
with their respective powers ... ", et cetera. One of the
institutions to which this document is addressed is the Court
of Justice so it imposes a duty on the Court of Justice to apply
it and to promote its application. That is there already and so
I would agree with you, with respect, that to me Article 6 really
adds nothing very much to where we are already.
Q139 Lord Mance:
By parity with the position under the Human Rights Act, is it
possible that the effect of this article and the duty on the European
Court, which you have just mentioned, will be horizontal? In other
words, because the Court will be applying European law as between
either Member States or persons and states, when it applies it
there will inevitably, as there has been with the European Convention
on Human Rights, a tendency for the principles to apply horizontally
as well as against institutions.
Professor Sir David Edward: Indeed. My understanding
is that, even leaving aside the Protocol in dealing with Poland
and the United Kingdom, the Charter does not create by itself
justiciable rights in national courts, except possibly in questions
relating to the validity of acts of the institutions. In other
words you cannot say in a horizontal situation that you demand
a remedy because of Article such and such of the Charter any more
than you can say it in certain respects in relation to the Human
Rights Convention. In my opinion, in horizontal situations, the
Charter will only be an aid to interpretation, but I am not sure.
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