Examination of Witnesses (Questions 140
- 159)
THURSDAY 6 DECEMBER 2007
Professor Sir David Edward KCMG QC
Q140 Lord Mance:
Is there a distinction in that respect possible between what the
Charter identifies as rights and what it identifies as principles
in Article 52?
Professor Sir David Edward: The language of
the so-called explanations is very peculiar in that respect. The
explanations do not make it clear what are rights and principles,
so I am not sure that that is helpful. What is very clear is the
exclusion of Title IV as creating justiciable rights in the United
Kingdom.
Q141 Lord Mance:
In the Protocol?
Professor Sir David Edward: In the Protocol.
I am sorry, my previous answer was not very clear.
Q142 Baroness Cohen of Pimlico:
Lord Mance has just shot my fox, but I was trying to ask the Clapham
omnibus question. What is the effect of the Protocol on the application
of the Charter of Fundamental Rights to Poland and to the United
Kingdom? I suppose the core question in there is whether it works
as people expect; that our opt-out will not lead to justiciable
rights in the United Kingdom.
Professor Sir David Edward: The justiciable
rights point is limited to Title IV and so Article 1, paragraph
2, of the Protocol limits this issue of justiciable rights to
Title IV of the Charter. Article 1, paragraph 1, simply says that
"The Charter does not extend the ability of the Court
of Justice... to find that the laws, regulations or administrative
provisions, practices or actions of the United Kingdom are inconsistent
with fundamental rights...". It is a very limited Protocol
as I see it. It is not a total opt-out of the application of the
Charter. On the contrary, it begins in the preamble by reaffirming
Article 6 of the Treaty on European Union. As to where that leaves
us—
Q143 Baroness Cohen of Pimlico:
I suppose that was my question.
Professor Sir David Edward: —I am not
sure that I can either offer elucidation or comfort in that respect.
Q144 Lord Powell of Bayswater:
I would simply point out that in an earlier session we had this
discussion and the question was put: are you saying that in effect
the UK Protocol is not really worth a great deal? The witness
replied "Crudely, yes".
Professor Sir David Edward: I would not say
that. The exclusion of the justiciability of Title IV is significant
in the sense that you could not rely on Title IV as a ground of
action.
Q145 Lord Powell of Bayswater:
Does not the exclusion of Title IV relating to solidarity or employment
rights create a problem despite the words "in particular"
and "for the avoidance of doubt"? Might reverse inferences
be drawn?
Professor Sir David Edward: The inference might
be drawn that the avoidance of doubt arises because Title IV is
about principles and not about rights. That would seem to me to
be a possible inference which could be drawn. Clarity does not
characterise this particular area.
Q146 Lord Maclennan of Rogart:
I wonder whether you could indicate to us what, if any, legal
effect flows from the translation of the provisions of free and
undistorted competition from the body of the Treaty to the Protocol,
which it has at the behest of the French president?
Professor Sir David Edward: The first point
is that the words "free and" are not in the existing
Treaties. The existing Treaties talk about a system ensuring undistorted
competition. "Free and" was introduced in Article I-3(2)
of the Treaty establishing the Constitution as a specific characteristic
of the internal market. It should be noted that the Protocol does
not include the words "free and". It only uses the word
"undistorted" and I must confess I do not fully understand
why it was not possible simply to delete "free and"
and leave "undistorted" in the body of the text because
that would have been no innovation on the existing Treaty. I would
also say that in my opinion "free" competition was never
part of the objectives of the Treaty in the sense of unrestricted
and unregulated competition; fair competition, fair and undistorted
competition, yes, but not necessarily unlimited, unrestricted
and unregulated competition which might have been an inference
to be drawn from the word "free". The question now is
whether, having put it in a Protocol, you have downgraded the
significance of the words "undistorted competition"
in the context of the internal market. In that connection you
have to bear in mind that the Protocols have the same effect as
the Treaty and that is expressly provided for in the Treaty on
European Union; so that Protocols which declare that undistorted
competition is a characteristic of the internal market mean that
the words are read back in. The way this was done is regrettable.
Q147 Lord Maclennan of Rogart:
Regrettable does not alter the legal position.
Professor Sir David Edward: No, it does not.
As I understand it, it does not because the Protocol has the same
effect as the Treaty.
Q148 Chairman:
May I make reference to something that you wrote in your written
submission to us involving national parliaments which arouses
my curiosity? You note that the proposed Article 63 TFEU would
impose a positive obligation on national parliaments to ensure
that proposals submitted under chapters four and five, judicial
cooperation and criminal matters of police cooperation, comply
with the principle of subsidiarity. Elsewhere in the Treaty we
had problems with the word "shall" where it originally
said "national parliaments shall contribute to the proper
functioning of the EU". That word "shall" was eventually
taken out because there was strong resistance to any idea that
the European Union could prescribe a particular course of action
to be taken by a sovereign national parliament and yet here the
imposition of a positive obligation seems to be falling into that
trap, is it not?
Professor Sir David Edward: The point I was
seeking to make was a more limited one, but may I address the
general question first. Yes; if you regard the obligation of the
member state parliaments in that context to be an obligation which
can be legally enforced, and it does not seem to me in other contexts
or even in this context it could be legally enforced. The point
I was seeking to make was a different one which was that if you
get a measure in the Area of Freedom, Security and Justice and
it goes through and then there is a claim that it infringes the
principle of subsidiarity, it would be relevant, as I see it,
that no Member State parliament had objected to that measure on
that ground.
Chairman: I accept entirely that point,
which is a very good one. I would venture to say, however, the
fact remains that a lot of people who were very worried about
"shall" must have missed this reference to a positive
obligation.
Q149 Lord Mance:
The draft version I have, has in the margin "`shall' deleted".
It now reads, "national parliaments ensure that the proposals
and legislative initiatives submitted"—
Professor Sir David Edward: I am obliged. The
text I have does not have that but, in that event, the limited
point I made remains.
Q150 Lord Mance:
Yes, that if you do not take the point then ...
Professor Sir David Edward: If you do not take
the point at the stage when it is going through, you cannot raise
it later.
Chairman: Could I just check with Lord
Mance's reading there that the words "a positive obligation"
precede the reference to ensuring?
Q151 Lord Mance:
No, it is just "national parliaments ensure" that the
initiatives ...
Professor Sir David Edward: The words "positive
obligation" were mine, not from the text.
Q152 Chairman:
Okay, that has clarified that. We have just a few moments left
and maybe I could ask you about Article 9(2) of the Treaty on
European Union which states "The institutions shall practice
mutual sincere cooperation". What might this mean in relation
to the Court and to litigation where one or more of the institutions
is a party? In a sense we have partly covered this but I wondered
whether you had any further comment on this?
Professor Sir David Edward: No. I have not heard
of a situation in which anybody has claimed that the Court was
in breach of its obligations to the other institutions. This particular
provision goes with the provision that the Member States shall
practice mutual sincere cooperation. I would suspect that in this
particular context "The institutions shall practice mutual
sincere cooperation" is aimed at the relationship between
the Council, the Commission and the European Parliament, the three
of them together, the idea that they have an obligation to work
together.
Q153 Baroness Cohen of Pimlico:
You cannot impose that kind of obligation on the Court, can you?
Professor Sir David Edward: Nonetheless I suppose
in so far as the Court is acting as an institution as opposed
to a jurisdiction, if you see what I mean. There are circumstances
in which the Court is indirectly involved in treaty negotiations.
Q154 Lord Mance:
I was going to ask one point about national appointments to the
Court. Is that still going to be the principle of one judge, one
country?
Professor Sir David Edward: Indeed.
Q155 Lord Mance:
But there is the panel to be set up to give an opinion on candidates'
suitability.
Professor Sir David Edward: Yes.
Q156 Lord Mance:
Is it easy to think how that will operate if there is, for example,
a need for judges in the areas of expanded competence? Is there
any way in which national courts will in practice be told that
or be able to respond to that? Do you think they will in practice
respond to it?
Professor Sir David Edward: It is extremely
difficult, just in the same way as there was pressure to increase
the number of women in the Court. Had this panel been in existence,
it would not have been possible for the panel to say "No,
you cannot appoint that person because he is male and we require
you to propose somebody who is female". If I take the situation
in this country at the moment, if the United Kingdom thinks that
the new judge of the Court of Justice ought to come from Scotland,
it would be extremely difficult for the panel to say "No,
we want an English patents specialist". It is just not a
real discussion.
Q157 Lord Mance:
Is it in the long run worth thinking as an ideal of detaching
judicial appointments from national prerogative?
Professor Sir David Edward: If we imagine, and
I believe this is inevitable, that in the longer term you are
going to have to have a "supreme court" of a much more
limited composition, then you could detach it from member state
choice.
Q158 Lord Mance:
Would you be in favour of that?
Professor Sir David Edward: I believe it is
inevitable, given the way that the Court is expanding. If one
envisages that there is going to be a court of 30+ judges, it
is almost impossible to see how a coherent jurisprudence can be
applied. My view therefore is that in the longer term, that has
to be thought about. But so long as there is the principle that
there will be one judge per Member State and that the judge will
be nominated by that Member State, then it seems to me that the
only function of the panel must be to satisfy themselves that
the person is a competent lawyer of sufficient quality to do the
job.
Q159 Chairman:
I am afraid we will have to leave it there because we are just
coming up now to the hour. Talking of competent lawyers of sufficient
quality, may I say Sir David that you have certainly fulfilled
all our requirements as far as this evidence session has been
concerned and we thank you very, very warmly indeed for giving
of your valuable time. You have given us a lot to think about
and some very useful evidence for our inquiry, so on behalf of
the whole Committee, I thank you very much.
Professor Sir David Edward: And thank you, because
it has caused me to figure out what on earth this thing means.
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