Select Committee on European Scrutiny Minutes of Evidence

Examination of Witnesses (Questions 229-239)



  Q229 Chairman: Foreign Secretary, welcome again to the European Scrutiny Committee. Several of our witnesses have suggested that ratification by national parliaments of the principle of the primacy of EU law in Article I-6 of the Constitutional Treaty may lead to greater deference on the part of national courts. Can you give us any assurance that the existing principles by which the UK courts recognise the legislative sovereignty of the Westminster Parliament will not be altered by this provision?

  Mr Straw: Yes, I can. I think your Committee will be familiar with what Lord Denning, then Master of the Rolls, said in McCarthy v Smith: "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision of it or with the intention of acting inconsistently with it—it says so in express terms—I should have thought it would be the duty of our courts to follow the statute in our Parliament." That much is clear. Other consequences would follow in those circumstances, which arise from our signature on the Vienna Convention on the Law of Treaty, Article 27, which says that you have to respect the international obligations into which you have entered. There would be a serious problem. In terms of primacy qua primacy, I can give you that clear undertaking. We are clear that the statement about primacy and the declaration are no more than a statement of the status quo and it is not just the status quo in respect of European Treaty obligations but effectively of any treaty obligations, particularly those which are incorporated into domestic law. It would be impossible to run an international system and have treaties unless where people entered into treaties they were binding on a number of signatories as long as they were there. The British Parliament in any event has the final say because it is up to the British Parliament as the sovereign authority in this country to decide whether or not we should remain a member or a signatory to a particular treaty.

  Q230 Mr Cash: As you know, there is this problem of competing assertions of jurisdiction by the European Court on the one hand and, as you quite rightly point out, McCarthy's case and indeed Metric Martyrs in which Lord Justice Law said much the same thing. There is a problem, is there not, and it came up in the evidence that we received from the expert witnesses on the interpretation of European law, which is that the balance of opinion was that, if there was a contest of competing jurisdictions after the Constitution had gone through, because of Article I-6, the advice we received was that the UK judges would have to decide as to which way they would go if an Act of Parliament, for example, like my Supremacy of Parliament Bill, notwithstanding the European Communities Act 1972, was clear and unambiguous. Do you not agree that it is most unsatisfactory for us to be in a position of uncertainty in this arena of competing jurisdictions? Would you not agree that this Bill that we are going to consider tomorrow should be amended to ensure that if Parliament passes an Act of Parliament clearly inconsistent with the European Communities Act or anything flowing from it, including the Constitution itself, the UK courts must give effect to that Act and, if not, why not?

  Mr Straw: On what happens at the committee or report stage, I am always open to looking at the merits of particular amendments. That has been my consistent practice. If there are amendments put down, including from you, we will look at them. You always have to look at amendments in terms of their   detailed wording. In terms of what the Constitutional Treaty does in this area, it is effectively a statement of the status quo. There is this declaration in respect of Article I-6: "The Conference notes that Article I-6 reflects existing case law in the Court of Justice of the European Communities and in the court of first instance."

  Q231 Mr Cash: That is dreadful, is it not, because they say under Costa that they take precedence.

  Mr Straw: The issue of primacy has been part of our obligations of membership since we joined. If you look at the competing texts of the yes and no campaigns back in 1975, you will see that there was exactly the same argument. It went before the British people and it has not changed. If we joined the European Union in respect of those obligations to which we voluntarily have signed up, which give the EU competence, we have to accept those obligations as interpreted by the European Court of Justice. On this issue of competing competences, the European Court of Justice—

  Q232 Mr Cash: Competing jurisdictions.

  Mr Straw: And jurisdictions. It is the same thing. The European Court of Justice itself has been very careful not to engage in a gratuitous argument with national jurisdictions. I could cite the Annibaldi case and the Karlsson case. They are alive to the fact that they have a very specific, limited job. On the issue of Kompetenz-kompetenz which runs round some Members of the Committee sometimes rather like a hare, I had a very lengthy discussion with a former, very senior member of the German Constitutional Court in Karlsruhe about this issue. Happily, he spoke perfect English so we had a very good discussion over dinner one night about this. He was explaining the issue but I came away from it thinking that, even for them, they do not see it as a practical problem in terms of their relationship with the European Union. I know of your anxieties, Mr Cash. I know where you are coming from. You do not like the European Union; you do not like the fact that currently there is law as explained by the ECJ about primacy in respect of treaty obligations and those which flow from it. To reassure you—

  Q233 Mr Cash: Very difficult, I would say.

  Mr Straw: This Constitutional Treaty does not make any difference and the issue of primacy arises fundamentally from Article 27 of the Vienna Convention on the Law of Treaties.

  Q234 Mr Cash: We can break our treaties by statute. Lord Diplock made that abundantly clear in a House of Lords case.

  Mr Straw: The British Parliament as I was taught at school—this has not changed—can do anything it wants, but there are consequences in the real world.

  Q235 Mr Cash: Fortunately.

  Mr Straw: Politics and government are about responsibility. If we pass a law which is plainly and expressly inconsistent with treaty obligations, we will then be in breach of those treaty obligations. The consequences are likely to be political and financial, more than legal, but they may also be legal in other jurisdictions in which we voluntarily have accepted the authority. Do not worry on this one.

  Q236 Angus Robertson: Can I move on to the Charter of Fundamental Rights? Article II-111 states that the Charter will apply to Member States only when they are implementing Union law, whilst the explanation to this Article uses the wider expression, to "act in the scope of Union law" and a number of our experts, eminent professors, have said that they believe the European Court of Justice will take the view that this wider formulation will prevail. In view of the difference, how firmly based is the government's view that incorporation of the Charter will not result in the extension of EU competence?

  Mr Straw: We are as firm as we can be. You may have seen the Attorney General's speech that he made on 25 June where he described the Charter of Rights as a brake, not an accelerator. Peter Goldsmith took intense interest, as did I, in ensuring that we had nailed down safeguards in respect of the potential scope of the Charter before we agreed to it being included within the text of the Constitutional Treaty. We do not think the phrases are different in practice. We also believe that the ECJ will look at each case on its merits. Again, I quote from the Annibaldi and the Karlsson cases. In the Annibaldi case which is cited, by the way, in explanations to Article II-111 the European Court of Justice refused to give a ruling on fundamental rights points because the matter fell outside EU law and they said it was for Member States. I do not think there will be a problem. This is a statement of existing rights and it quite emphatically, as Article II-111 makes clear, does not extend the field of EU law beyond the powers of EU law or establish any new power or task for the EU or modify powers and tasks defined in the Constitution. Lord Goldsmith also said that he was unaware of any other human rights statement where the legislator has offered so full and careful elaboration of its meaning. We went to very considerable lengths. One of the last things that I agreed before we gave our assent to the whole document was to beef up the acknowledgement in the text of the status of the explanations, because we wanted to make it clear.

  Q237 Angus Robertson: If this is the case, if so much work has gone in to make sure that there is not ambiguity, why is the wording not exactly the same and why do so many eminent academics feel that there is this gap?

  Mr Straw: I cannot answer the latter question except to say that academic life would not be academic life unless there were differing opinions and long may that continue. Our judgment is that it does not make any difference between implementing Union law and being within the scope of Union law. Because the words are different you could argue that the meaning is different. Sometimes you get different words used and their meaning comes down to the same thing. I think that would be the case here.

  Q238 Mr David: I want to talk about the implementations in the extremely unlikely scenario that the United Kingdom should vote no and other Member States have already voted yes. Do you think that we would be in a situation whereby Member States would try and put some kind of political pressure on the United Kingdom to have some kind of associate status to the European Union or would you stick by what you said originally in your letter of 20 October, that the Treaty would simply be terminated and that would be the end of the matter?

  Mr Straw: For the Treaty to come into force there need to be 25 positive ratifications. If there were not, it would not come into force. Such things happen in respect of other treaties. It always takes a long time. We saw that recently in respect of Kyoto which took some years before it had sufficient numbers to ratify it, although in that case it did not require unanimity of all the signatories; or, for example, in respect of the Nice Treaty where Ireland failed to ratify. Secondly, the European Council will meet and decide what to do. The only certain thing is that we would be in an era of quite profound uncertainty for the British government's relationship with the European Union if we were in a situation where 24 had said yes and we had said no. I cannot predict what the reaction would be, except we would be in a weaker position than we are now. This is a Treaty which is very much in Britain's interests. If you go round Europe to see what people said at the time the Treaty was agreed, they said it was a victory for Britain. That was said repeatedly in one country after another, or words to that effect. I set out in September 2003 what were our key concerns and key demands before we would sign up to it and it was a very public negotiating position which had its own risks, but it nailed us to the floor and we have delivered on all of those. We have changes to make the EU better managed and I have yet to see a single argument explaining in rational terms why there is objection to slimming down the size of the Commission, to having a voting system which reduces the disproportionate weight of the small countries and makes the weight of votes proportionate to people's population which, by definition, helps a country like the United Kingdom. Having a full time president of the European Council to act on behalf of Member States and particularly having a really effective mechanism for involving national parliaments and the British Parliament—how is that against our national interest? It cannot be and yet these are some of the things to which some people in this place object. You can have an argument about the extension of QMV. Although the substantive extension of QMV is very limited, overall we got a good deal because of the strength of our negotiating position. We had the British Parliament behind us and we had been very open in the way we had obtained public backing for our position; and also, because we had a veto at that stage. To try and renegotiate the treaties with the reverse position would be very difficult. It would be a very risky enterprise. I cannot see it as in Britain's interests, given the fact that more and more the EU is working for Britains's interests and becoming as we would wish it.

  Q239 Mr Steen: Welcome back to the Committee. Until recently we did not see Foreign Secretaries but it is very nice that we see so much of you now and thank you for your answers. We have had a lot of evidence from academics and you rightly said that they all have different views. I would like to test you on one or two of the views put forward. The first view put forward by a group of MEPs was that if Britain said no in the referendum it would be a period of great uncertainty, although they thought it likely that the other 24 countries would go ahead and we would just be on the sidelines. A much stronger view expressed by some of the professors and others was that if France, probably Poland and Spain said no in the referendum that would kill the whole Constitution dead; but if we said no, as we are already very much on the outside of the EU, which is somewhat different from what you were saying, what we said was gloriously unimportant. The rest of the EU would go on and we would be struggling behind in the coach at the back of the train, trying to stop the train but it would keep going. I wonder what you feel about the French saying no. Would that kill it dead?

  Mr Straw: I am not talking about any other particular country saying no. The legal position is the same whichever country says no. It must be. We are all pari passu as Member States around the table. The political consequences would be broadly the same. There would be a serious problem, not to say a crisis, inside the European Union. People know what they are going to get with this document. That is a matter of debate. It will be further debated tomorrow, no doubt, when it goes on the floor of the House and at committee and report stages and then very publicly. I am confident both about making the public argument and about winning the public argument. In the end, I have one vote of 30 million so it is for the British people to decide. We have produced a greater certainty for the British people. If we make a decision where we are the only ones who are rejecting it, we are making a decision for isolation and where we would be negotiating from weakness, not from strength. It is risky and uncertain. It is not in Britain's interests.

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