IGC report by European Scrutiny Committee

The change to a fresh set of lies by HM Government to avoid giving the people their promised referendum now centres on the 'Red Line' issues, I quote what the parliamentary committee stated in its report issued yesterday as follows: ======================= — the Government’s ‘red-line’ issues 51. The table in the Annex shows that the overall effect of the Reform Treaty for countries which do not seek agreements that some parts of the new Treaty do not apply is substantially equivalent to the Constitutional Treaty. Given the importance which the Government has attached to its “preconditions” or “red lines” for agreeing to any new Treaty, we think it useful to examine the extent to which the Reform Treaty marks a difference from the corresponding provision made in the Constitutional Treaty and meets those conditions, or whether any further amendments are required for those conditions tobe met. 52. In his appearance before the Liaison Committee on 18 June the then Prime Minister in response to questions from the Committee’s Chairman stated the Government’s position prior to the European Council as follows: “First, we will not accept a treaty that allows the Charter of Fundamental Rights to change UK law in any way. Secondly, we will not agree to something which displaces the role of British foreign policy and our foreign minister. Thirdly, we will not agree to give up our ability to control our common law and judicial and police system. Fourthly,we will not agree to anything that moves to qualified majority voting, something that can have a big say in our own tax and benefit system.” 53. These four conditions are re-stated (although in more general terms) in the White Paper as “protection of the UK’s existing labour and social legislation”, “maintenance of the UK’s independent foreign and defence policy”, “protection of the UK’s common law system, and our police and judicial processes” and “protection of the UK’s tax and social security system”. Additionally, the White Paper stated that the Government wished “to clearly establish that national security is a matter for the Member States”. In terms of the Reform Treaty these matters are covered in the provisions concerning the Charter of Fundamental Rights, the CFSP and ESDP, Justice and Home Affairs and on the extension of QMV to social security, respectively. — the Charter of Fundamental Rights 54. In relation to the Charter of Fundamental Rights, the White Paper states that the Government has achieved its aim of ensuring that “nothing in the [Charter] would give national or European courts any new powers to strike down or reinterpret UK law, including labour and social legislation”. To support this statement the Government relies on the Protocol which appeared at footnote 19 to the IGC Mandate and which is now set out in Protocol No 7 to the Reform Treaty. The Protocol has two main substantive articles, the first44 of which provides that: “1. The Charter does not extend the ability of the Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.” 55. We raised with the Minister a number of issues concerning the effect of the Protocol. As the Charter would apply to Member States when implementing Union law, the question arises of whether the UK would be bound by ECJ case law when the latter interprets Union law as implemented in other Member States in circumstances where the same Union law is also implemented in the United Kingdom. On the one hand, the Protocol states that the 44 Article 2 of the Protocol provides “To the extent that a provision of the Charter refers to national laws and practices, it shall only apply in the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of the United Kingdom”. Charter does not “extend” the ability of the ECJ to find that UK law is inconsistent with the Charter, but, on the other, the Protocol is itself expressed to be “without prejudice to other obligations of the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally”. 56. In view of this possible inconsistency between the Protocol and the Treaties, we asked the Minister, when he gave evidence to us on 4 July, whether the general obligation to ensure the uniform application of Union law would give way to the Protocol when it came to the interpretation of Union law which had been implemented in the United Kingdom. The Minister replied that the ECJ already insists on the uniformity of application of EU law to which the UK has agreed, but that the Charter “does not create any new rights but brings together existing rights found under the ECHR, current EC Treaties and other instruments so there are no additional powers of consequence of the chapter being treated in this way”45. In our letter of 11 July to the Minister we said that the Minister appeared to acknowledge that the ECJ already interprets measures adopted at EU level in a uniform way and that interpretations by the ECJ in the light of the Charter would be binding on the UK in respect of measures to which the UK had already agreed. We asked the Minister if, by reason of the Protocol it was the Government’s position that the same consequence would not apply to new measures i.e. those adopted after the Protocol comes into force. 57. In his letter of 31 July the Minister replies as follows: “The UK-specific Protocol which the Government secured is not an ‘opt-out’ from the Charter. Rather, the Protocol clarifies the effect the Charter will have in the UK. The UK Protocol confirms that nothing in the Charter extends the ability of any court to strike down UK law. In particular, the social and economic provisions of Title IV give people no greater rights than are given in UK law. Any Charter rights referring to national law and practice will have the same limitations as those rights in national law. The Protocol confirms that since the Charter creates no rights, or circumstances in which those rights can be relied on before the courts, it does not change the status quo.” 58. We recall that the Commission’s opinion on the IGC Mandate states that the Charter “will apply in full to acts of implementation of Union law even if not in all Member States”, from which it could be inferred that ECJ interpretations based on the Charter would not apply to measures adopted in the UK to implement Union law. It could be argued that such an inference is not sustainable as the words of the recital reaffirm that the Protocol is “without prejudice to other obligations of the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally”. The Minister also confirms that the Protocol is not an ‘opt-out’ from the Charter. If it is intended that ECJ case law based on the Charter should have no effect at all within the UK, we would have expected some provision in the Protocol to make it clear that the Protocol takes effect notwithstanding other provisions in the Treaties or Union law generally. This would be the more necessary given the tendency for any derogation from the Treaties to be interpreted restrictively by the ECJ. To take a possible example, the Working Time Directive46 contains provisions limiting the weekly hours of work of (Footnotes) 45 Q49 HC862-i. 46 Council Directive 104/93/EC, implemented in the UK by the Working Time Regulations 1998 SI 1998/1833. 20 European Scrutiny Committee, 35th Report, Session 2006-07 a worker to 48 hours per week, but with the possibility of agreements to waive those limits. As Article II-91(1) of the Charter provides that “every worker has the right to limitation of maximum working hours” we have some concern that it seems quite possible that following a reference to the ECJ from some other Member State the Court might find that, in the light of the Charter, the derogation from the Directive allowing such waivers has to be interpreted more restrictively than before (i.e. before the Charter had legal effect). 59. As another possible example, Article II-81 of the Charter prohibits discrimination “on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation”. We would be concerned that, following a reference to the ECJ from some other Member State, the Court might find that a measure adopted at EU level (such as Council Directive 200/43/EC) had to be given an extended interpretation in the light of the wide grounds47 for prohibiting discrimination under the Charter. 60. If the Member States have indeed agreed in the IGC Mandate that a ruling from the ECJ in such cases should have no effect in the UK, then this ought to be made clear. In our view, there is here at least an ambiguity which should be resolved and the UK’s safeguards made firmer in the course of the IGC if the results claimed by the Government are to be secured. We would wish the Government to show how they have secured the UK from such interpretations and ask that they secure the phrasing “notwithstanding other provisions in the Treaties or Union law generally” in the text of the Protocol. 61. A secondary issue which we raised with the Minister was whether the provisions of Article 1(2) of the Protocol applied to the whole Charter or only to Title IV. We note the Minister’s confirmation in his letter of 16 July that the Protocol applies to all the Titles of the Charter, but we also observe that in the IGC Mandate text the reference to Title IV in Article 1(2) was in square brackets, so that it was not clear to us if the provision in Article 1(2) (which was a particular provision for the avoidance of doubt) applied only to Title IV or to the Charter as a whole. The Minister confirmed in his letter of 16 July to us that Article 1(2) referred only to Title IV.48 The Minister described the provision as securing “in particular that the Charter will not extend the ECJ’s or national courts’ power to challenge or reinterpret UK employment or social legislation” [our emphasis]. We accept that this was intended to underline the Government’s particular concern to secure its industrial relations legislative position. 62. We would be concerned if the assurances given by the Minister that the provision will secure the results which have been claimed prove to be flawed. As far as we are aware, avoidance of doubt provisions are a rarity in the Treaties and lead us to question why, in this case, the specific reference was only to Title IV. We would seek more concrete evidence from the Government that this provision could not be read as suggesting that the other provisions of the Charter do create justiciable rights applicable to the United Kingdom. We accept that the avoidance of doubt provision does not apply “in so far as the United Kingdom has provided for such rights in its national law”. (Footnotes) 47 The grounds of social origin, language, political or any other opinion, property and birth are not mentioned in Article 13 EC. 48 Title IV of the Charter (Articles 87-106) is concerned with social and employment rights, including the right to strike. The application of this exception would, ultimately, be a matter for the ECJ in the event of a dispute involving UK law. We would seek to clarify with the Government what protection there is for their safeguards in this area and if the ECJ could decide that the exception would not apply, because the UK had made provision of some kind in an area (e.g. in relation to limits on working time) even if the provision did not exactly match what the ECJ might consider was required by the Charter. We would wish to know what value the Government’s claimed safeguards would provide if this was to occur. — CFSP and ESDP 63. The Constitutional Treaty provided for European decisions relating to the Common Foreign and Security Policy to be adopted by unanimity, “except in the cases referred to in Part III”.49 These cases largely corresponded to those for which QMV is already provided for by Article 23(2)EU, but now include decisions on proposals from the High Representative where these have been specifically requested by the European Council by unanimity, the decision to establish ‘permanent structured cooperation’ in defence by those Member States willing to do so, and decisions (by the special legislative procedure) for cooperation on diplomatic and consular protection. These provisions of the Constitutional Treaty will be taken over in a new Title V EU which will maintain the largely intergovernmental nature of the CFSP and ESDP. 64. A point which concerned our predecessors when they considered the Constitutional Treaty was that the jurisdiction of ECJ was not excluded in respect of Article I-16 CT (which set out Union competence and provided for a duty on Member States actively and unreservedly to support the Union’s common foreign and security policy) even though the ECJ had no jurisdiction in relation to CFSP under Part III of the Constitutional Treaty. We welcome the clarification (by a new Article 11(1) EU) that the ECJ will not have jurisdiction, save in respect of monitoring compliance with the provisions Article III-308 (which preserve the non-CFSP competences of the institutions) and in relation to the legality of restrictive measures imposed on natural or legal persons. — Justice and Home Affairs 65. The provisions of the Constitutional Treaty on judicial cooperation in criminal matters will be reproduced in the Reform Treaty in the form of an amended Title IV which will incorporate Articles III-257-277 of the Constitutional Treaty and, accordingly, measures under that Title will for the most part50 be adopted by QMV and codecision. The previous Committee drew attention to similar proposals when it considered the Convention51. The previous Committee was not persuaded that there was any need to abandon the safeguard of unanimity in such sensitive areas, and paid particular attention to the so-called ‘emergency brake’ which was introduced in the Constitutional Treaty and would allow a Member State to require that a proposal should be referred to the European Council if it 49 Article I-40(6) CT. (Footnotes) 50 Exceptionally, unanimity is required for measures concerning family law (Article 69d [Article III-269 CT]), the European Public Prosecutor’s Office (Article 69i [Article III-274 CT]), operational cooperation between police authorities (Article 69j [Article III-275]), operations of police and other authorities within territory of another Member State (Article 69l [Article III-277]). 51 HC 63 –xxvi-I (2002-03) (25 June 2003). affected fundamental aspects of its criminal justice system.52 The previous Committee had reservations about the voting arrangements for the adoption of criminal justice measures under that Treaty, but accepted that the ‘emergency brake’ procedure could provide an effective mechanism to protect Member States which are initially outvoted.53 However, an emergency brake cannot be applied very frequently and it may be difficult to protect against the repackaging of controversial proposals into smaller measures. 66. A further safeguard for the UK (and Ireland) is now proposed in the Reform Treaty to the effect that the existing ‘opt-in’ arrangements under the Protocol on the position of the United Kingdom and Ireland54 should also apply to the new provisions now transferred to Title IV. It is clear from the ‘opt-in’ arrangements that the United Kingdom is free to decide whether or not to take part in the negotiation of proposals under the transferred provisions, and to that extent is able to protect the distinctive features of the legal systems of the UK, including criminal law and procedure. 67. It is less clear if, having once made a decision to opt in, the United Kingdom remains free not to take part in a measure should the negotiations produce a text which is not acceptable. The Protocol does not provide for any revocation of the decision to opt in and, as far as we are aware, there has been no case in which the UK having once opted in to a measure under Title IV EC, has subsequently not taken part in that measure. There is, therefore, a risk that having once opted in to a draft measure, the UK will find itself unable to prevent amendments in the course of negotiations which are disadvantageous to the UK, since these will be adopted by QMV and codecision. This is a particular risk in civil matters where the ‘emergency brake’ is not available. Even where the emergency brake is in principle available, we consider that the interests of the UK would be better protected if it were confirmed that the UK is free to revoke its decision to opt in if the final text is not acceptable. We will seek to explore with the Government the necessity of achieving this agreement at the IGC. =================================== The document in pdf or html format is available from this link.