Memorandum By Sionaidh Douglas Scott,
King's College London
The draft EU constitution, while not containing proposed
changes to the EU order of very great magnitude, does include
some measures capable of having a significant impact on UK constitutional
- Part I plays an important role in clarifying
the powers of the EU and fundamental principles of EU law. Its
provisions on subsidiarity and primacy of EU law appear to make
little change to the exiting situation. The list of EU competences
is welcome, although there may be a problem demarcating shared
and supportive competences. The new 'delegated regulations' and
'implementing acts' have probably not been defined and delineated
with sufficient clarity.
- The Convention incorporates the Charter of Fundamental
Rights in Part II. However there are still problems with its 'horizontal
provisions' and thus questions as to its impact on national law.
The distinction between 'rights' and 'principles' may need some
- Chapter III on Justice and Home Affairs contains
some noteworthy provisions affecting national criminal law, an
area until recently largely untouched by the EU. The Constitution
makes it possible for EU measures in this area to have direct
effect (currently not the case) as well as increasing the EU's
powers in the criminal law field, giving it new competences in
criminal procedure, substantive law and a basis for the European
Public Prosecutor. These provisions merit careful scrutiny.
- The provisions on the Common Foreign and Security
Policy are probably less far-reaching than those in JHA. There
is no provision for the direct effect of EU measures in this area
and the draft Constitution does little to add opportunities for
QMV. The proposed EU foreign minister, despite their proposed
formal right of initiative, will may be unlikely to have a significant
impact on member states' foreign policy.
To what extent will the proposed European Constitution,
if implemented, affect the constitution of the United Kingdom?
On a very general level there is the issue
of the extent to which further European integration per se
has implications for the UK constitution. Of course, the extent
to which integration affects the UK depends on what that integration
involves (discussed below). However, regardless of particular
features, with a 'European Constitution' the EU might itself begin
to look more like a state, or 'super-state', even if contentious
terms, such as 'federal' were left out of the final draft. Arguably,
the EU has had a Constitution for some while, if not an express
but a written formal document makes more evident the nature of
its legal order, with EU legal personality, a Charter of Fundamental
Rights, a President, and a Foreign Minister, even if it can act
only on the basis of conferred competences (Article I-9). Such
a Constitution might seem to refurbish, or even create, a new
identity for the EU, perhaps bringing this home to European citizens,
even eventually reaching their hearts and minds?
Article I-5 of the draft Constitution requires the
Union to 'respect the national identities of its Member States',
as well as stating that the EU 'shall respect their essential
State functions . . .' and the term 'respect' has been used in
previous treaties (e.g. A 6(3) EU). However, it is not entirely
clear what the term 'respect' means in this context. Certainly,
neither Article I-5, nor the draft Constitution as a whole, contains
a clear statement that the Member States are sovereign and independent.
At the very least this situation reinforces the perception held
by some (e.g. Neil McCormick) that the European legal space is
not one of discrete separate legal orders, nor one of hierarchy
between the EU and its member states, but rather a plurality of
overlapping legal orders, rather more fluid than we had imagined
it, with interesting questions for constitutional allegiances.
Which articles in the draft Treaty have particularly
significant constitutional implications for the United Kingdom?
What would the constitutional effect of the implementation
of those articles be?
2. 'Constitutional implications'
One initial issue - what is meant by 'constitutional
implications' for the UK? What sense of the UK constitution are
we using here? Constitutions are notoriously slippery concepts,
particularly that of the UK, largely unwritten, in which it is
not so very easy to distinguish (even principal) constitutional
laws from ordinary laws. Most constitutional law textbooks include
the following as constitutional law: general principles of constitutional
law (such as parliamentary supremacy, separation of powers, responsible
and accountable government); the institutions of government (including
basic structures - parliament, the executive, the judiciary, executive
agencies, as well as key powers such as foreign policy and defence,
expenditure and tax); and the relations between the individual
and the state (including human rights, state security, emergency
powers and terrorism). Article I-5 of the Draft Constitution,
cited above, seems to follow this view, and, stated in full reads
1. The Union shall respect the national
identities of the Member States, inherent in their fundamental
structures, political and constitutional, inclusive of regional
and local self-government. It shall respect their essential State
functions, including those for ensuring the territorial integrity
of the State, and for maintaining law and order and safeguarding
But 'Constitution' may have a wider sense too. The
EU draft constitution is a 'thick' constitution to the extent
that it includes much detail which goes beyond the basic formulation
set out above. It includes in Part III detailed rules on areas
such as agriculture and competition, as well as various policies
in which the EU by no means has exclusive competence. If one perceives
'constitution' in this 'thick' EU sense, then arguably, everything
in the EU draft has a capacity to affect the UK constitution.
I will not assume 'constitution' has this sense in
my response. In the context of this paper, I take 'constitution'
to imply the term for the law that establishes and regulates the
main organs of government and their powers, as well as foundational
constitutional principles, such as the rule of law, sovereignty
of Parliament, separation of powers, and the relations between
the individual and the state. The question then becomes - how
much in the draft European Constitution is new, with a potential
The UK has been put under pressure
by both pro-Europeans and eurosceptics to hold a referendum.
During the Convention the Government resisted this pressure, arguing
that the changes were not of sufficient constitutional importance.
This position perhaps reflected the UK Government's fear of its
ability to win a referendum, rather than a genuine view that the
draft Constitutional Treaty really represents a mere 'tidying
up' exercise. A more general view now seems to be that the draft
Constitution goes beyond consolidation, involving extensions of
the previous EU legal order which have implications for the UK's
sovereignty and parliamentary democracy. The rest of this paper
details what these might be.
3. Assessment of Draft Constitutional Articles
(in chronological order).
Article I-9 Fundamental Principles: Subsidiarity
Article I-9 (3): This provision deals with the principle
of Subsidiarity. The wording is similar to that in A 5 EC. However,
a new Protocol on the Application of the Principles of Subsidiarity
and Proportionality has been annexed to the draft Constitution,
by which all Commission propositions will be sent to national
parliaments for review. If 1/3 of parliaments object then the
Commission will have to review the proposal. This
new early warning system to give national parliaments a clear
role in monitoring subsidiarity is another important, democratic
step. The key result of this reform may be to make it clear to
domestic media and national publics that their national parliament
has full information and a role to play at the start of the process.
If the system works, it will also encourage communication across
national parliaments. This is surely a constitutional feature,
if hardly a negative one.
However, the Protocol is unclear on certain matters
- what would be the effect if national parliaments objected to
some matter other than subsidiarity - i.e. human rights, or the
substance of the measure. The Protocol also apparently provides
no possibility for parliaments to raise fresh objections after
a measure has been amended by the Council or European Parliament.
Therefore this would still leave gaps as to national parliaments'
ability to function re subsidiarity.
4. Article I-10 - Primacy of Union Law: This
is a new article, which enshrines the supremacy of EU law for
the first time into a treaty. Several comments can be made:
a) Article 10 aims, I imagine, to set out the situation
that has existed in EC law following from the ECJ's caselaw, starting
with Costa v Enel. This caselaw has generally been accepted
by the English courts. However, even if Article I -10 were to
be implemented there would still be, in UK law, no clarity as
to what would happen were Parliament to pass a statute going expressly
contrary to EU law. UK courts would be bound either to follow
Parliament's express wish, or to go against that wish and the
authority of Parliament, and follow EU law. Article I-10 does
not settle this quandary.
b) Article I-10(1) refers to the primacy of the EU
only 'in exercising competences conferred on it'. Article I-10(1)
therefore does not settle the issue of who is to determine
the boundaries of EU competences (the so-called 'Kompetenz
-Kompetenz' issue). This issue may still raise key issues
notwithstanding the delineation of competences in the new EU draft
Constitution (see below).
5. Articles I-11-16: Categories of Competence:
a) For the first time, a list of EU competences has
been set out. However, there may still be problems likely to affect
UK constitutional law. I see the problem lying in the dividing
line between Article I-13 (shared competences) and Article I-16
(co-coordinating/supporting competences). For example, health
is likely to be contentious. Article I-13 refers to 'common safety
concerns in public health matters' as a shared competence and
Article I-16 'protection and improvement of human health' as a
supporting competence. There is likely to be some overlap. The
difference between the two types of competences lies in the capacity
of a shared competence to have a pre-emptive effect on member
state action. Once the EU has exercised competence in a shared
area the Member states may not act. This is likely to be contentious
in areas such as health, which even if not directly constitutional,
are still thought of as preserves of national sovereignty, as
well as large spending areas in which different national economic,
social and tax polices will make a difference.
b) Article I-14: 'The coordination of economic and
employment policies' also bears further scrutiny. What is the
status of this article? It would seem to be a shared competence,
although it doesn't fall under the list in Article I-13. It is
a new clause, although to some extent reflects previous practice
and case law. However, its implied status as a shared competence
would imply pre-emption of state action, once the EU has acted
- controversial particularly with regard to economic policy in
Article 14(1), and again, with possible constitutional implications.
c) Article I-17: Flexibility clause:
This is an amended version of Article 308 EC - the
'implied powers' clause which allowed the EC to take actions on
certain matters, even if there were no express provisions enabling
it do so in the treaty. Notably, in its amended form it applies
to areas covered by all 3 pillars, i.e. to JHA (Justice and Home
Affairs) and CFSP (Common Foreign and Security Policy) as well
as EC matters, i.e. its subject matter is no longer restricted
to the Internal Market. In theory it might provide a new base
for actions in controversial areas, extending the EU's competence.
However, there are probably enough safeguards written into it
- the Council must act unanimously under it, and the national
monitoring procedure for subsidiarity under Article 9(3) applies.
6. Legal Acts of the Union
a) New capacity for direct effect: Notably,
the new category of European law and Framework law (Article I-32)
now covers the EU's 3rd Pillar - the PJCC (Police and
Judicial Co-operation in Criminal Matters) (see Article I-41 (1)
and Part III draft Constitution). Nowhere does the draft Constitution
imply that in this context, these measures will have different
characteristics than elsewhere. So they could have direct effect
and the ECJ's caselaw from Van Duyn and Marleasing
and Unilever Italia will apply to police and judicial criminal
matters if taken by the new European law or framework law. This
goes some way toward building a directly effective EU criminal
law, thus creating a relationship between the individual and the
state in this area.
(This will apparently not be the case with the CFSP
- Article 39(3) specifies the use of 'European decisions' which
will replace the use of joint actions and common positions under
the present CFSP).
b) Non-legislative acts: Articles I-35 and 36.
Article I-35 introduces 'delegated regulations' -
an entirely new clause as such acts are not currently provided
for. The implementing acts covered by Article I-36 (2) are based
on Article 202 EC. But the distinction between the two does not
seem to be very clear. Nor is there any great clarity as to what
is and is not a legislative rather than a delegating or implementing
act. This has an impact for legislative procedures, comitology
and parliamentary scrutiny of measures.
7. The Charter of Fundamental Rights
Now incorporated into Part II draft Constitution.
a) Problems still remain concerning the 'horizontal
provisions'. When will the Charter apply to the member states?
The question is still what is meant by Member states 'implementing'
EU law. This matters because once a Charter provision falls within
member state purview then national courts may have to adjudicate
the matter. They will have to adjudicate a Charter which contains
a much broader range of rights than those existing under the Human
Rights Act. The Charter contains socio-economic rights for example,
still a contentious matter. There is a difficulty about making
social rights justiciable, where the strict enforcement of such
rights would transfer some key decisions on social policy, and
even spending, from the legislature to the Courts. The Convention
attempted to address this difficulty by making a distinction between
principles and rights in Article 51 (1) of the Charter.
Additionally, Article 52(5) provides that Charter provisions containing
principles will be justiciable only in the interpretation of Member
State legislative measures to give effect to such principles.
But there are still problems in the rights/ principles
distinction in the Charter. Principles are supposed to be aspirational
only, rather than directly effective justiciable rights. But it
is still conceivable that the ECJ might take its own approach,
transforming some principles into directly effective rights.
b) National judges will also be able to declare UK
law invalid if it violates a Charter right, a situation which
goes beyond there powers under the Human Rights Act, where they
can only issue a declaration of incompatibility. So the scope
of the Charter is a crucial matter.
8. Chapter III - Justice and Home Affairs
This is an ambitious chapter, which makes some important
changes to the existing situation which have an impact on UK constitutional
law. The subject matter of Justice and Home Affairs (JHA) - in
particular the present EU 3rd Pillar (PJCC), criminal
law and criminal justice, and relations between individual and
the state - are areas close to the heart of national sovereignty,
as well as being subject to very different traditions in Member
States (in spite of initiatives like Corpus Justice which
works towards a European Criminal code). Although, since the Maastricht
Treaty, the EU has had some competence in JHA (and prior to that
intergovernmental co-operation existed, e.g. through the Trevi
group) progress was not as swift as it could be until September
11, after which the EU adopted a substantial amount of legislation
aimed at promoting security. Although Article
III-163 states that 'This Chapter shall not affect the exercise
of the responsibilities incumbent upon Member States with regard
to maintaining law and order and safeguarding internal security'
there is nonetheless, in the process of being
created, a substantial constitutional criminal law of the EU.
I have restricted my comments to those concerning PJCC (3rd
Pillar) as I think these are most likely to have a constitutional
impact in the UK.
9. There are striking changes to decision
making in this area.
In the field of criminal law and policing the majority
of legislation will be taken by QMV, excluding only the creation
of a European Public Prosecutor, cross border actions by the police
and operational police measures. (Art II 171 - 176).
Member states will also lose their right of initiative
in this field from 1 May 2004 (already planned prior to the draft
Constitution), so the Commission will thenceforward have the sole
right of initiative. As already stated above criminal and policy
legislation will take the form of EU laws capable of direct
effect rather than framework decisions, decisions and Conventions
as at present. Judicial control has been expanded so the ECJ's
ordinary jurisdiction will apply to JHA with the exception of
validity and proportionality of policing (Art 283).
10. The competences of the EU also change
in these areas.
The EU's criminal law powers will be more clearly
defined in 3 areas:
a) Cross-border co-operation (Art III 171(1))
- would include areas such as mutual recognition of all forms
of judgements and other judicial decisions - i.e. freezing of
assets and so on. This has an impact on national criminal law,
as actions already taken by the EU illustrate. The European Arrest
Warrant (EAW) has already been adopted in June 2002, partly as
a reaction to September 11. It effectively abolishes extradition
in the EU, requiring instead member states to recognise and enforce
arrest warrants issued in other member states. The EAW was passed
unanimously under the PJCC as a framework decision, but under
the draft treaty measures could generally be taken under QMV.
There was much disquiet at the time the EAW was passed - partly
because reasons for refusing to recognise them are extremely limited,
and do not include comprehensive human rights grounds. The EAW
is basically premised on mutual trust in the respective criminal
law and justice systems of the member states - as are the draft
treaty's provisions on cross border co-operation. This trust is
perhaps not so evident all the time - for example, the English
High Court refused to extradite the Paris metro bomber suspect
to France quite recently (in the Ramda case) on the basis
that they felt that the evidence against him had been obtained
from a co-accused under oppression.
b) Criminal procedure (Art III 171(2)). This
covers areas such as admissibility of evidence, the rights of
individuals in criminal proceedings, victims' rights. Under the
draft Constitution, European framework laws may establish minimum
rules in areas having a cross-border dimension. This could be
quite intrusive. 'Cross border dimension' is not defined but could
be quite wide in scope, in which case, the EU could have a considerable
jurisdiction. Although some legislation might be welcome to counteract
the rather repressive effects of measures such as the EAW and
European definition of terrorism, the problem is that criminal
procedure differs widely from state to state. Although accusatorial
and inquisitorial systems did begin to converge as early as the
18th century, there has not been very much convergence,
There is still mutual criticism - e.g. criticism of plea bargaining,
and the greater resources of prosecutors in Anglo-Saxon jurisdictions
by continental systems, criticisms of the retention of Juge
d'instruction on the continent by Anglo-Saxons.
Although organisations like the European Convention
on Human Rights illustrate a successful transnational criminal
law concerning individual rights, the ECHR operates at a very
minimal level, and what the EU aspires to do could go much further.
Contemporary attempts to set up transnational criminal procedure
suffer from the lack of assimilation. The US was not the only
country to have critical reservations about the ICC. France too,
had reservations based on its procedures. Recently, the first
defendant to appear before the ICTY (International Criminal Tribunal
for the former Yugoslavia) challenged the limits on the defence
ability to cross-examine prosecution witnesses. In that context,
there was a problem resulting from the struggle of the parties
and judges to adapt a mix of doctrines to a hybrid situation.
Different legal and political cultures give rise to different
expressions of criminal justice. To attempt legal convergence
results in what Gunther Teubner calls 'legal transplants as irritants'
- or an interference like that on the TV screen when the picture
Therefore, there may be no justice where common action
is taken, because there is no substantive notion capable of underpinning
it shared by Member States, like a host of computer programmes
that will not speak to each other. This area demonstrates a real
need for subsidiarity, which after all is another structural attempt
to promote freedom and justice - the two other key components
of the EU's 'Area of Freedom, Security and Justice' to which its
JHA policy aspires.
c) Substantive criminal law (Art III 172).
It is proposed that the EU have substantive powers over 10 specific
crimes, including terrorism, trafficking in human beings, drug
trafficking, and money laundering. This list can also be extended
by the Council acting unanimously with the consent of the European
A substantive conception of criminal justice to underpin
any common EU criminal law is a most formidable challenge. Criminal
law and justice are so closely related to national culture and
national sovereignty. The EU managed to adopt its common definition
of terrorism in the aftermath of September 11 (only 6 member states
actually had a crime of terrorism on their books at that time)
but it may not be easy to reach agreement in the future.
11. European Public Prosecutor. The draft
Constitution also includes Article III 175 - the base to establish
a European Public Prosecutor. The provisions concerning the establishment
and powers of the Prosecutor are very vague but this wholly new
power should enable the Council of Ministers to establish such
a prosecutor with a broad jurisdiction to investigate and prosecute
all serious crimes affecting more than one member state (Although
prosecutions would have to be brought in the courts of a member
state). Unanimity is required to set up a European Prosecutor
and disquiet about this office has been expressed in some Member
states. It might be the case that a Prosecutor would be established,
but with powers only in those member states which had consented
to its jurisdiction. This would then create all sorts of problems
regarding the Prosecutor's relations with those states which had
not consented (creating a situation like that regarding the US
and the International Criminal Court).
Existing bodies, Eurojust and Europol, would
also gain an increase in powers. Article III-174(2)(a) will allow
Eurojust to initiate criminal prosecutions (although formally
they will be conducted by 'competent national authorities') as
well as its current mission of co-ordinating co-operation between
national authorities in relation to serious crime. According to
Article III 177 Europol's competence and remit would be increased
to cover all serious crimes with a cross border element. Art III
177(3) does however specify that any 'coercive action' 'shall
be the exclusive responsibility of the competent national authorities'.
So Europol has not yet been given its own right of initiative
12. In conclusion, the effect of these amendments
(and even existing measures, which have not always been noted
for what they are) is that much criminal law and procedure, as
well as policing measures, are being taken out of the hands of
national parliaments. Additionally, this has not been accompanied
by accountability elsewhere. Control over Agencies such as Eurojust
and Europol is still weak. There is insufficient scrutiny.
In its conclusions, Convention Working Group X stated
that: 'it is important that citizens feel that a proper sense
of "European Public Order" has taken shape and is actually
visible today in their daily lives. In this respect the principles
of democracy and transparency are of the utmost importance.' The
EU has been active in its AFSJ (Area of Freedom, Security and
Justice) since September 11 taking steps against terrorism to
promote public security. But too often this actions has been at
expense of democracy, transparency and civil liberties, not to
mention the sovereignty of national parliaments in these areas.
13. Common Foreign And Security Policy (CFSP)
Will the increase in powers of the EU in this area
threaten national sovereignty?
a) Article I-39(7) specifies that measures taken
under the CFSP are to take the form of European decisions and
that European law and framework laws are excluded. Therefore
CFSP acts will not be capable of direct or indirect effect.
b) Article I-39 also states that decisions are to
be adopted unanimously 'except in the cases referred to in Part
III'. The Convention extensively debated qualified majority voting
(QMV) in the CFSP and a large number of Convention members argued
for its widespread use. France and Germany proposed using QMV
in their joint institutional paper, although after the Iraq crisis,
France seemed to have abandoned the idea. The UK in particular
was strongly opposed to any QMV in CFSP, even to any minor extensions
in implementation. Some scope for QMV in the CFSP exists in the
draft Constitution (Article III-201 (2) and (3) - however, most
of these already existed, with the exception of Article III-201(3)
by which the European Council has the power (by unanimous decision)
to extend QMV (although this does not apply to defence - Article
III 201 (4)).
c) Nevertheless, the possibility for enhanced cooperation
in CFSP has been strengthened. In an important move forward (Article
III-213) some forms of enhanced cooperation are now to be allowed
in security and defence policy. Crisis management tasks may be
attributed to a group of countries, so-called 'structured cooperation'
may be established concerning capabilities and the possibility
for closer cooperation on mutual defence is also proposed. This
is, however, a controversial area and will be discussed again
at the IGC. The UK in particular is nervous about 'structured
cooperation' in defence and any possible competition with NATO,
and strongly opposes a mutual defence clause.
14. New EU Foreign Minister
The main change in the draft
Constitution on CFSP is the double-hatting of the new EU foreign
minister (Article I-27), responsible to the Council for CFSP,
and at the same time, occupying the role of Vice-President of
the Commission and coordinating external action policies. Would
this role threaten the autonomy of the UK's foreign policy?
Under the draft Constitution, the EU foreign minister
has a formal right of initiative (Article I -27(2) and Article
III-200) which means that they will have a fair amount of weight
in designing a common policy, providing that the division of tasks
between the foreign minister and the permanent president of the
European Council are sufficiently defined.
However, during the Iraq crisis
Javier Solana, the EU's current High Representative for the CFSP,
had no role. Even the then Greek presidency's efforts in calling
for an emergency summit were to little avail. It is doubtful whether
a more permanent president of the European Council and an EU foreign
minister would have been in any stronger position to mandate an
'EU position' over Iraq. Indeed, the splits over Iraq call into
question the value of having an EU minister for Foreign Affairs.
It seems unlikely that this new post will remove the reluctance
of the member states, especially the larger ones, to cede national
sovereignty on foreign policy issues and thus create a genuine,
substantive foreign policy for the foreign minister and president
91 See e.g. Sionaidh Douglas-Scott, Constitutional
Law of the European Union (2002) chapter 15, on this issue. Back