Lord Slynn of Hadley
Lord of Appeal in Ordinary
On: Legal Aspects of the Draft EU Constitution
22 July 2003
“Your Excellencies, my lords, ladies, and gentlemen. I approach this moment with some trepidation since it is the first occasion on which I have acted as Chairman of the European Atlantic Group although there have been many occasions when I have enjoyed the community and the questioning that this group allows. I am somewhat alarmed to be taking on this task in the presence of my immediate predecessor, Sir Michael Burton. (Sir Michael Burton KCVO CMG, former HM Ambassador to the Czech Republic) who discharged this office with great distinction. I am delighted that the subject matter of this evenings discourse, entitled ‘Legal Aspects of the Draft EU Constitution,’ is not only a subject of great topical importance but also one with which I am very involved as a former member of the European Parliament, and now as an active member of the Council of Europe Delegation. I am even more delighted that our speaker this evening should be a friend of long standing, Lord Slynn of Hadley, who has had a very distinguished career, which you will all have read about in the notice that was sent out. If I may point, in terms of this evenings’ speech, to one or two aspects of his career, I would pick out the fact that he was Judge Advocate of the European Court of Justice in Luxemburg for many years during which a number of difficult and important decisions had to be made. During his many activities in the House of Lords, not least as a Lord-of-appeal in ordinary, he has been Chairman of a subcommittee of the European Committees that have dealt with issues affecting Europe and I know that he has personal knowledge of many of the countries of Central and Eastern Europe. So I think we could have nobody better this evening to talk to us about the legal aspects of the draft European Union Constitution.
Lord Slynn of Hadley
Your Excellencies, my lords and ladies and gentlemen
It was very kind of you to have invited to me this dinner tonight. I’m delighted to be here. I have been a number of times to the meetings of the group. I’ve always enjoyed them enormously.
One of the things that you learn when you’ve been a judge for a while is that the quality of dinner varies from place to place and I must say that you have given us jolly good dinners this evening. Two of my American friends recently were travelling in the Yorkshire dales, and the wife said to the husband, ‘Do you know we never had lunch in an English pub?’ The husband replied ‘Ok, today we will find a pub for lunch.’ They saw a board outside a pub that said ‘Today’s special: a pint of beer, a piece of pie and a friendly word: two pounds.’ The husband said ‘This is fine, let’s go in’ so they went in. They sat at the bar and asked for ‘Two specials.’ The barman pulled the pint of beer, cut the piece of pie and went back to reading the Sun. The husband said, ‘Wait a bit, we’ve had the beer, and we’ve had the pie, what about the friendly word?’ To which the barman said, ‘Sir, if I was you, I wouldn’t eat the pie.’ (laughter). I don’t think there is any danger of anybody going back tonight and feeling that they have been served in that way.
I was anxious about what I should talk about. I added the word ‘legal’ to the title suggested to me. A long time ago, I learnt never to lead an audience to expect too much. Especially after dinner, and when you’ve only got twenty-five minutes. I was anxious not to build up your expectations. So if I said this was to be a talk about the legal aspects of the draft European Constitution, I thought that the timid would be frightened away by the word ‘legal’ and the rest of you would not expect too much from me. (laughter) Because it is quite obvious that the most controversial and the most interesting aspects of the draft constitution we’re looking at are political. And when they are purely political, its’ obviously not proper that a mere lawyer such as I should talk about them because, looking down the delegate list, it is obvious that most of you are most better equipped to talk about the political aspects of the draft constitution than I. Some aspects on the other hand, are a mixture of the legal and the political and perhaps a lawyer may speak cautiously, timidly, about some of those. The rest are purely legal and, about them, a lawyer may speak boldly but they can be of such boredom that none of you would wish me to speak about them tonight. (laughter) So what I’m going to try and do is stay in the middle group, with perhaps an occasional glance to the left, to the political ones, and to the right, the legal ones.
The first question that I think anyone must have asked when this whole business of a constitution and a convention was set up is ‘Do we really not have a constitution?’ If we had one, why on earth bother with all that has been going on in the last 18 months or so? If we don’t have one, how is it that we managed so well for 50 years in the European community without one? If we’ve managed so well for 50 years, why do we bother now to set up a constitution?
There is obviously already a political dispute as to whether we do have a constitution. Politicians don’t want to admit that we have a constitution because if they admit that it is a constitution, the argument is well, why bother? On the other hand, lawyers tend to think that there already is a constitution. We have already many very good constitutional rules. We have constitutional institutions. We have a council, originally legislative, and now legislative with the parliament. We have a court, which is, without question, a constitutional court. When the court decides that the parliament can sue and be sued, that is a constitutional decision by a constitutional court. We have a democratically elected parliament which, increasingly, has a role in legislation. We have a commission, which is the executive, which spurts ideas and puts forward proposals for legislation and which is the guardian of the treaty. So we have constitutional rules; we have constitutional institutions, and so it’s a fair question, why do we bother? Why all this hoo-ha about a constitution?
I think it’s very plain that the inquiry which was set up, unlike some inquiries, really was very important. There were four good reasons for looking at the question, should we now have a European constitution? In the first place, the existing treaties are a bit difficult to follow. To take them to bed at night to try and find your way around subjects of compelling interest to you just before midnight, you may find it quite difficult to find little bits of the treaty which are applicable to what it is you particularly want to look at. So there is no doubt that some as people say there is a mish-mash in these various articles of the treaty, Rome, Maastricht, Amsterdam, Nice and so on. Some people call it a mish-mash, others more politely say it is a mosaic. Even so, they admit that it’s not very easy to follow. So the good thing is to sort out the mish-mash. Jack Straw, our foreign secretary, in a great speech said it very important that we should have a constitution like the United States constitution or like the UN Declaration of Human Rights to put in a trouser pocket. It is very important to have a constitution of that size. I can’t even pick this one up; but this is a draft that even Jack Straw’s pocket could not accommodate. Indeed those shoulder bags, which ladies as they walk down aisles of aeroplanes swing into you, could hardly contain this proposed draft constitution.
Whether you agree or disagree with what’s going on, I’m sure you would accept that it is important that we should stand back and review what we have done. Are we going too fast in forming the ever-closer union of people? Are we going too slowly? Should we look and see what we have done and see what remains to be done and try for the future to try and get it right? Even without the new member states coming in, it is obvious that we needed time to do a complete review of our institutions and procedures. There is no doubt that the organisation and community the union exist. Organisation and community and union from time to time creak and needs to be adapted. So there is nothing inherently wrong in our having a review. With the coming in of the new member states, it is essential that we should see what has happened.
We began as states – Nine, eleven, fifteen, and so on, and now probably next year 25, maybe two or three years later 27, maybe if we emulate the Council of Europe in a few years time, anything up to 43. So it is essential that there should be a serious review of the structure and the institutions of the community. So the inquiry was not only a good idea, it was essential. When I hear people in the press, radio, and the street saying – because on the street people talk of nothing else (laughter) – that we really shouldn’t be having this sort of inquiry at all, it seems to me they have really missed the point. I think the form of inquiry set up was a very good inquiry; it was representative; that was the first important feature, of the governments and of the parliaments of the various member states. It had the institutions and most important of all, it had representatives of the incoming, applicant countries, the candidates for membership of the community. Its structure was right and it has worked incredibly well. I thought that it would take a very long time. I thought so many of the topics were so controversial that, not only would there not be unanimity, it would be very difficult even to get a consensus. Through their working groups and the committees, they really have worked extraordinarily quickly. If you agree with what they do or not don’t matter; they really have worked with a considerable degree of success. What was important is that the inter-governmental committee and the heads of state shouldn’t have just done this on their own. They haven’t got time; they haven’t got the width of representation. It really was time to hold this review. I think it was very important.
The review having started, the lawyers got into it immediately. The lawyers said, ‘well you’ve got to decide, do we want a new constitution or do we merely want a constitutional treaty?’ The one, former, and decided by the people democratically, to adopt a constitution; or do we merely have a lot of Tony Blairs getting together and saying lets have a new treaty that all our parliaments will ratify. I don’t think it matters very much in the end but to constitutional lawyers and politicians it seems to matter very much. It’s quite interesting when one follows the drafts of the convention reports over the last year: they moved away from saying let us have a constitutional treaty, saying rather ‘here is the constitution created by the treaty.’ No longer a constitutional treaty, yet a constitution created by the treaty. So they have been moving towards the idea of a real, genuine constitution. That word seems to strike fear in people’s hearts. Europe and the United Kingdom don’t have a written constitution. What a shocking, troubling, disturbing thought that is! When, in the drafts, the word ‘federation’ appeared, there was not merely fear. There was terror. And there was anger at the thought that the ‘F’ word was going to come into our vocabulary. That was a very serious concern to be taken into account. But it’s obvious that, as all of you would understand, a constitution, by itself, need not create fear. Even the word federation need not create terror or anger. It depends what you put into it. That is why the discussions of the last 18 months have been so important.
Let us look at the conclusions: Mr Prodi has said that the draft which has come out of the convention has showed a lack of ambition and vision. Herr Brock, who ran a great campaign on behalf of Germany, said that this was an extraordinary disappointment. Peter Hain, the senior British representative of the convention, said it was a merely tidying up operation. The Daily Mail, I’m told, said it was a blueprint for tyranny. You cannot go much further from a blueprint of tyranny to a lack of ambition and vision and a mere tidying up operation.
So very briefly, here is what seemed to me to be important features of all this: let us start by underlining the fact that much that is in the draft constitution coming out of the convention is very familiar. The articles dealing with the many aspects of the common market are there in full: free movement of goods, services, people, and capital are there; no doubt, with some modifications but essentially they are there. Of course there are changes and differences. What do I see as the important ones?
In the first place, I think the drafting of the preamble and the values of the objectives of the Union are much clearer than it was in the combined European community treaty and the European Union treaty. So if we can get away from the mish-mash it will be easier for people to understand; I think that is critically important. There is no doubt that the treaty combines very strong statements of the continuing aims of the community and the union: its belief in human values, its respect for law, its striving for peace, justice, and solidarity throughout the world and so on. Its aim in transcending the ancient divisions between people and, in summary, its aim for an ever-closer union of the member states of Europe to forge a common destiny. I think all that is very important. And those who don’t like the concept of the union or community, those who don’t want to go any further, who want to go back, will take exception to those.
At the same time, you will find in the draft a full recognition that member states have rights and traditions that must be respected. It seems to me that one of the great things that had to be done at this stage is to outline the competences between the union and the member states, particularly, now that the Union has legal personality. Without it, I suggest that the European community will disappear. Those three pillars we strove so hard to understand will go. It is very important that the new draft should set out the difference between what the Union can do, what the Union should do, what the member states can do, and what the member states only should do. I think, as a lawyer, that the stress on this horrible word ‘subsidiary’ in the new draft is very important. There is the recognition that some functions should be only those of the Union, and some should be shared. I quote what I think is the most important sentence, that the competences not conferred upon the union in the constitution remain with the member states. You will find a parallel of that in the American Constitution. It’s an important phrase in the draft; those competences that are not conferred upon the union in the constitution remain with the member state. Emphasis on what is called conferral, bearing on the union, yet keeping the rest of the member states, and on the concept of subsidiary, it is extremely important. The insistence of what can be better done in the region, in the states and districts of the states should be left for them to do. It is very important. I think that the insistence on that and the insistence of the primacy of the rule of law, which the court itself built up, are really very important.
Some of the things that have been drafted, to a lawyer, seem easy to swallow and to be necessary. The co-ordination of our commercial policy, I have absolutely, personally, no difficulty with. Much more controversial are those proposals that we should try and reach a common foreign policy and a foreign security policy and a common defence policy. And the proposal that we should create a foreign minister for Europe. On the face of it, it seems very controversial that our own government has already made it clear, that it is not particularly or at all, proven. I think we need to look at that carefully, we already have two commissioners dealing with foreign affairs and foreign relations. Chris Patten is one. I think that is something that is going to cause a great difficulty as is the composition of the commission. We now have one or two commissioners per state. If we have one per state there will be 25 commissioners. The Nice treaty provided for 27, we’ll leave it at that, even when Bulgaria and Romania and the others come in. Now the proposal is that there should be 15 commissioners and 25 states. Quite plainly, it won’t have any effect on the United Kingdom; it is unthinkable that the big states should not each have a commissioner. What about the effect on the smaller states? It is going to be very difficult to persuade people that they should have commissioners with no vote, very little voice, with an associate membership. And the task really, of trying and persuade the big states to follow their line. But what other solution is there to getting away from twenty-five, twenty-seven members of the commission? I see that and the appointment of a foreign secretary, rather foreign minister, as being one of difficulty.
I think also there will be considerable problems with the definition of what is now a qualified majority. We cannot possibly, in the community, in the union, go on seeking unanimity for everything. On the other hand, one man, one vote and the table doesn’t truly represent the position in the community. For Luxembourg to have one vote, with whatever it is 250,000 native Luxemburgers with maybe 400,000 people in the state… A wonderful place to live, I spent eleven years there. But one vote. It is not quite the same as one for Germany with 65 or 70 million, whatever it is. And so we have got to work out a formula of establishing what should be a qualified majority.
Well there is a lot more and I’m not going much into detail. There are a lot more that we really have got to look at. There are going to be changes in the way the legislation is conducted. We have all grown up used to this wonderful word, Directive. And every businessman I’ve met says ‘The idea of a Directive from Brussels fills me with horror.’ Well, perhaps that’s the reason why they got rid of the word Directive saying the member states have a duty in carrying it out. They just do what Brussels tells them. But now its not going to be called a directive, it’s going to be called a Framework Act. It seems to have a meaning not so very different from that of a Directive. It sounds good, a framework act, telling you what is the framework in which you can operate. But there will be now regulations that will either be a obligatory or will be not obligatory.
I just want to mention two things. First of all it seems to me that the major thing that has to be decided by the intergovernmental conference next year is – We must remember that everything which is recommended by Giscard D’Estaing convention can be overruled but the IGC next year – Two things that are very, very important, that is, what are we going to do with the new Charter of human rights? We built up through Strasbourg and now through our own human rights act, to the UN Declaration, a strong body of judicial decisions on human rights. The new charter agreed in Nice is a very much more detailed document. Our government tells us that there is nothing new in it. It is merely a showcase of our existing rights. Well if you believe that whatever the government says is right, then you will accept that. I as a lawyer, of course, would not believe anything the government said, because that would be contrary to the rule of law maybe. But look at some of the provisions which are contained in the new draft charter of rights. Dealing with body parts, dealing with DNA, dealing with the protection of intellectual property, dealing with academic freedom, things we’ve never seen in the Strasbourg convention, things we don’t have in our own act of human rights. I think we need to look very carefully at those before we decide that the whole charter should become a part of our domestic law.
Who is going to enforce the charter? Strasbourg? On the face of it, No. Strasbourg is Council of Europe, nothing to do with the European Union and Luxembourg and the member states. Member states, well maybe, they’ll have to do it. Difficult, because of the different interpretations that can be given throughout Europe. The European Court? Well, it’s the regulation of the community; if it’s a treaty document of the community of the union, then the European Court will have to do it. But is the European Court the right body? The court set up for economic and political reasons. Is it the right body to be ruling on human rights? Maybe it’s the only one. But that leaves another difficult question, which will have to be decided next year. The new charter says that the community should accede to the European Convention on Human Rights. Well, we’ve avoided that so far. When I was Chairman of the House of Lords of the select committee on the Council of Europe, we said very firmly, we should not in the community exceed, there are more important things to be worrying about. Protection of human rights should lie with the national judges; it could lie with the Strasbourg court, but why bring the community into all of that. Well they’ve changed their minds now. They all seem to think we should do it, but it is a big question.
And then finally; there are many provisions about the European Court of Justice. There are some very interesting changes proposed. I think they will make the courts more efficient but they don’t add up to all that much.
I have violated tonight the definition of an English speech after dinner, which my German colleague of the European Court told me soon after I went there. He said that an English speech after dinner should have three features. There should be one joke, that’s normally the joke. (laughter) There should be one idea. Well I probably haven’t given you any ideas. And thirdly, most of all, I have violated the third concept, to the Germans, of what an English speech should be, and that is that the end should be that the end should be as near the beginning as possible. (laughter) For that I apologise.
Baroness Hooper CMG, E-AG Chairman: Well I’m sure everybody will agree that this really hit the spot. Obviously, Lord Slynn, your chosen title didn’t drive anybody away because I think we have a full house and certainly what you have said to us has given considerable food for thought. We start the discussion, the question period, with a contribution from the other Sir Michael Burton, who is also a lawyer, and therefore very suitably qualified to discuss the aspects of this draft constitution. He is a high court judge and he is President of the Employment Appeal Tribunal and he is also Chairman of the Central Arbitration Committee. He has listened to what Lord Slynn has had to say and he is now going to start our discussion. Thank you Sir Michael.Sir Michael Burton, High Court Judge, Opening DiscussionThank you very much Chairman. I am here on false pretences because in fact, as you can see, I’m Sir Michael’s poltergeist and we are not supposed to be in the same place at the same time. (laughter) We’ve given it all away, we normally box and cox, and I’ve had a number of friends who are here say I’m voting for you for the committee. Did you get in Michael? Well there you go. It was all thanks to my friends. My eldest daughter got engaged recently, it was in the Times, and he got all the letters from the people trying to come. (Laughter) Flowers and invitations and places for people to get married. That’s the reason I am here, I’m not here because I have any kind of knowledge of Europe though obviously as a high court judge, and one deals with European law now as part of English law. But the other reason I am proud to be here is because I picked up one of Lord Slynn’s cast-offs, because of course among the very distinguished positions which Lord Slynn has held over the years which is mentioned in what is called the potted biography (on the delegate lists), and it is pretty ‘potted’, it didn’t mention that he was, for a time, a very distinguished President of the Employment Appeal Tribunal which is still cited to us every day. I’ve been asked in that kind of position of ignorance simply to start the ball rolling and clearly Lord Slynn himself has thrown out a number of topics that we are all going to want to pick up. What about the position of commissioners, what about the foreign minister, what about qualified voting, and the European charter? I thought that I would also just ensure, perhaps, that we should also keep in mind, given the international nature of your membership and a number of people who are here today not just from this country but Chargés d’Affaires, councillors and representatives from other countries, just to ask perhaps, what is the position so far as the future is concerned? We are going to make a big change that we are altering from a union of the strong, or perhaps the quick, to a community of all, or almost all. Is this constitution, which as it is geared now, if it’s accepted, towards twenty-five, going to cope simply with twenty-seven, as particularly, as I am sitting next to Chargé d’Affaires of Bosnia and Herzegovina, thirty-five. What of those who are left out? I don’t think we have a Chargé d’Affaires from Albania here. But what happens to those countries that, if Albania were left behind, would be picked up by extra European Organisations? Is it going to be essential to bring everybody in, in our own interest? And, perhaps a different topic. What about financial problems? We can decide the euro, per se. But what about financial difficulties of one member state that may have to be shared by others? Is it really the case that Germany and Italy will have their pension funds unfunded, unlike for example in the United Kingdom, such that if there were a big collapses of their economies that we might all be there to pick up the pieces? What protection do the member states have from that? It seems to me that Lord Slynn has started us off from what he calls the legal aspects but plainly including many non-legal questions. I hope that all of us are going to continue to learn from today, not simply from Lord Slynn, but also from the very distinguished people among you who I hope are ready to fire questions or raise topics which we can all sit and shiver as we listen to. Thank you very much. Mr John Poyser, Member of E-AGIf we are going to have a foreign minister for the EU, how is this minister going to be selected? Baroness Hooper CMG, Chairman E-AG
I did agree with Lord Slynn that maybe he would take two or three questions and he would respond to all.
Mr John Gouriet, Chairman, Defenders of the Realm: I am very depressed at what I’ve heard this evening. I am not un-surprised; I have to say that I had other thoughts in mind when I go to bed usually. (laughter) I’d like to ask you, my Lord, do you accept that there is an English or British constitution that includes, as its basis, the Declaration and Bill of Rights and the Coronation Oath in written form? If so, do you accept the principle that no one is above the law and that both the monarch and parliament are limited by the rule of law to abide by the constraints of the constitution? My third part of this question is, if so, do you accept that you are bound by your oaths of allegiance of office as a privy councillor and senior judge, to uphold the Rule of Law and the British Constitution and if so, how can such a blatant and serious breach of our constitution be accepted by those in high office whose duty it is to oppose the imposition of an alien constitution on this ancient realm, tooth and claw. My lords and ladies, this is a question of the supremacy of the rule of law, or the supremacy of parliament. I prefer to go by the supremacy of the rule of law.Mr Seigi Mandelbaum, Member of E-AG
Lord Slynn has not thrown up not too few, but too many questions. Look at the American constitution and at what Alexander Hamilton said of it. We are looking at the European Union; the original intention was to ensure that Germany and France stay away from war. We are now some 50+ years later; we have to look at it from a different view point. To think that 25 or even more countries can live under the same economic and political circumstances is surely a complete and utter nonsense?Lord Slynn of Hadley
Regarding the foreign minister, the foreign minister is to be appointed by the European Council. They have to decide by a qualified majority. There has to more than a simple majority of the members. I think it has to be two-thirds. They changed it between Nice and the last version in the convention. Two thirds of the state and that has to be more than a majority of the actual population. So it is no use saying you’ll get two-thirds of the smaller states voting and all of the big ones voting against. So there is both a population control and a state control of the numbers involved. And that has to not only be approved by the European Council, it has to be agreed by the President of the commission and then they appoint the minister. So there is really, a very real control as to who should be appointed.
Financial problems, yes of course there will be financial problems. Of course, the community will have to work out how we deal with those. Not just for small things, but for big things. Yes of course, from time to time, the United Kingdom will be called on to help, but so equally will all the other states.
What do we do with Sir Michael’s question about the countries that are not in the Union? Well there are a lot of small states that are relatively smaller countries in greater Europe who are not applying for admission. Many of them would like to come into the community. I think we have to apply a very strict test as to their economic viability. Can they satisfy the economic test? I think equally, we have to satisfy the human rights test. I do not believe that it is right that a state that cannot satisfy the human rights test of the community should be allowed in. I must tell you now, having in the last four or five years spent a great deal of time in Central and Eastern Europe, in Hungary, Poland, Czech Republic, Slovenia, and the Baltic States, virtually all except Cyprus and Malta, I am very impressed by the amount of dedication that has gone into work of judges, businessmen, and politicians, to understand what the community demands, what it is about, and what they will have to satisfy. And I am delighted with many visits I’ve made and many speakers I have met, and I am not pessimistic at all. Quite the opposite – about their ability to comply with the standards of the union. What is the position of the others not yet in, Albania for example, I simply don’t know because we haven’t begun to look at them yet. But that is something to which undoubtedly we will have to come in time.
As to the rule of law and the Bill of Rights, I’m sorry I made you so angry. I think, myself, when I sat as a judge as member of European court for 11 years, a critical factor in everybody’s mind was the importance of upholding the rule of law. And the one contribution that the United Kingdom could make to that in a very big way was to bring into the melting pot of ideas the traditional English concepts of the rule of law. I don’t feel any sense of guilt or shame that we have failed to do that. I once had a letter from an Indian Judge saying to me saying that our country has given to him his most precious possessions, the rule of law. I think in the European Community, the rule of law, a very special concept, has had its effect on the community and that will continue. Martin Howe QC, Member of E-AG, Barrister
I wondered if Lord Slynn could comment a little further on the distinction between a new constitutional treaty and a new constitution created by treaty. Because the European Court in the opinion judgement on the European Economic Area Agreement made it clear that you could have treaty texts which are identically worded but because the objects and purposes of the instrument they are within strongly influences the interpretation of them, would have different meanings, so that the European Economic Area Agreement on the one hand being a primarily economic instrument, the provisions in it dealing with the single market would have one meaning and potentially identically worded provisions of the treaty of Rome, because it is part of a body with a political superstructure, would have a different meaning. This leads on to the thought in my mind, that if you have incorporated into a new document with a constitutional purpose, provisions which may be today we are all familiar with, nonetheless they are all going to be interpreted in a different way, in a new and expansive way, because the object and purposes of the instrument in which they are contained in has now changed. Robert Side, Member of E-AG, Skills Knowledge On Line Education:
Lord Slynn, you have in your, I thought excellent speech, indicated the very large number of administrative problems that remain to be decided inside the proposed constitution. How is it possible that these are all going to be reconciled, particularly by the conflicts between the large states and the small states by May next year when the ten new members actually arrive? We’ve been wrestling with this for many years, and the Nice so called treaty, simply exposed them to everybody’s view. How on earth are these going to be reconciled?
Mr Ram Gidoomal CBE Chair, London Sustainability Exchange; Leader, Christian peoples alliance, the British Christian Democrat party: The question that I feel has not been touched on at all is the whole issue of the roots of our democracy, in Britain and many European nation states, the roots of our democracy go back, have Christian roots, our institutions, heritage, and traditions. When I’ve looked at the constitution, I see no reference, no mention of these historic roots of our democracy. Is it political correctness that says lets not mention it at all, the “C” word? And why not, and I feel, when I ran for mayor of London, the support from the other faith communities was immense, because they respected that very basis and what it stood for.Sir John Osborn, Member of E-AG
I was a member of this group when I was on the Council of Europe. I was in the European Parliament before you were elected. I have been fascinated with this early discussion and the questions put to you. The subject is so complicated that any politician putting it over to the electorate is going to have an uphill task. I think it is such an uphill task that if it were to go in referendum – I think Peter Haine has rather changed his position since saying that it was just a tidying up operation – I hold the view that the majority of people would vote on prejudice and not on the knowledge from which you have had tonight from this audience. Lord Slynn of Hadley
First question, the difference between a treaty and a constitutional treaty: I think, as I said earlier, that there may not be all that much difference in that. The most learned professor in this area has said that the only difference is the way in which, in fact, it is adopted. If it’s a lot of Tony Blairs agreeing something and then letting parliament ratify, that is simply a treaty. If on the other hand, it is to be a decision of peoples of Europe democratically, then it might be seen as a constitution. I doubt very much whether this distinction would have much effect on decisions of the European Court in interpreting the words that are used. I accept that with clever lawyers like you turning up in Luxembourg, they might decide anything.(laughter). So it’s the same as in the discussion about the capacity of the community to sign up to the human rights convention. I was still on the court when that opinion was being worked on. I think I signed it but it may have been signed just after I was gone. But it was quite clear that the structure of the community as it then was did not allow the community to sign up to a treaty of that kind without the treaty of Rome being amended. That meant that, in effect, you had to have a change in the existing constitution. It may well be now that things are different, and indeed to my surprise, the convention has proposed that the European Union should accede to the convention of Human Rights. One time people were for it, then they were against it, then they were for it, then they were against it. I think when you are in that stage of dither; you really have to work out what is going to be done for people by acceding. I didn’t think there was very much to be done. Trade unionists, workers in the community will be protected by the court. Everybody else will be protected by his own national court. Particularly now we have the human rights act, there is no reason why British judges shouldn’t fully protect the British people as do french judges and others. I think you are right; there could be differences in interpretation in the scope of powers given depending on the nature of the treaty. At the moment, I personally very much doubt it.
The second question was how on earth do we reconcile the many differences which have gone into the convention? And that is a very realistic and very real question. I have already said the Inter-Governmental Committee will lead to some of the proposals being set aside by the state level. I think the smaller states may well gang up together for the right sort of number of people for qualified majority voting. They will certainly lobby the big states to vote against some of the things like the number of commissioners, with associate commissioners not having any vote. I think there will be a great dispute about the number of votes which are recorded in the parliament. Spain did very well at these and may not do so well next time around. There will be a big fight over that. But the history of the community from the beginning has been one of all the states trying to chip in. We have been more “difficult” than all the other states in discussing things, at almost every stage of the community. What is important is that others should follow us in recognising the rule of law. Margaret Thatcher used to say ‘we are always the last to agree, but once we have been beaten on it and the decision taken, we are the best and the first to comply.’ She was absolutely right. We fought our corner and the minute it became the law, the United Kingdom had one of the best records for implementing community regulations and directives, as they were then called. I used to feel very proud in my eleven years at the European Court to see the record of the UK. I had no sense of failure in the fact that we had fought our corner and maybe hadn’t won in the end. We have to do the same in the future. I’m quite sure that there will be things in which we will agree with the small states. There will be things in which we will agree with the French against the Germans, and the Germans against the French. That’s all part of the debate and all part of the melting pot. The only thing that troubles me is that we should not, in the United Kingdom, as long as we stay in the community, we should just say all this is a terrible mess and we should just keep out. Either we all stay in and fight our corner, or if its practical, and I doubt whether it is practical, we get out. I think we are in and we have to stay in, for the foreseeable future. I see no point in being in there and whinging the whole time. And just saying we can’t fight; we must damn well fight the things we don’t like. It is the democratic process and the Rule of Law; if we lose, we just have to comply.
The third thing, and again an extremely interesting question, is about democracy, and if there is any reference to democracy in the draft EU Constitution. I think you do have to start with the preamble. The beginning of the preamble is that our constitution is called a democracy because power in the hands of not a minority, but of the greatest number. The figures on majority voting. The preamble begins drawing inspiration from the cultural, religions and human inheritance of Europe, which are always present in its heritage, and so on and so on and so forth. Rule of Law, convinced that while remaining proud of their own national identities and history, people of Europe are determined to transcend ancient divisions and united evermore closely to form a common destiny. That’s the preamble, and then you come on to important things, article one describes the unions values, it is very short, I will read it. ‘The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law, and respect for human rights. These values are common to the member states in a society of pluralism, tolerance, justice, solidarity and non-discrimination. I think people are very conscious of the importance of democracy throughout the whole community. It is our job in the United Kingdom to make sure they remember that. Dirk Van Heck, Head of Research, European Foundation
Lord Slynn, you stressed the importance in delimiting competencies in the constitution between the European Union and the member states. The article on shared competencies states that all of the competencies which are arrogated to the union, by its own acts, under the shared competencies – There is a list of shared competencies – says that, in those areas, which are listed, the union can take more power, and those left over will belong to the member states. In light of the fact that the union will arrogate more power to itself, and over time, and the fact that it leaves the ECJ to discern the limitations in the areas in which the union has acted, isn’t this unconducive to legal certainty?
Kimberlee Howard, Assistant to E-AG: “As noted earlier, the Draft EU constitution has been compared to the US constitution. How will the states remain free from being absorbed into a European Super-state, while abiding by the new constitution? Is one led to believe that the tendency of the future legal interpretations will lend itself to a more American model?”
Mr Darius Furmanovicious, E-AG member: “To what extent do you think the European constitution defines the European Union as a security organisation? To what extent do you think it implies that it will become a European Super-state?Ms Kathleen Wilson, Member of E-AG, Former Delegate to Council of Europe
I’m not a lawyer, but I did represent an NGO at the Council of Europe. Lord Slynn has stressed the importance of the Rule of Law. He had mentioned the proposed charter of human rights and the expectation that the EU will sign up to the convention. While in Strasbourg, I was interested in the reform in the court of Strasbourg. It was insufficiently resourced, and therefore there were unacceptable delays. I hear that this too is the case at Luxemburg? Are there practical provisions to increase the resources of the courts of Europe?”
Mr Radomir Kosic Charge d Affaires of Bosnia and Herzegovina: “My Lord, how do you see European Atlantic relations in terms of a European Super state?Lord Slynn of Hadley
Fascinating questions. I may not have written everything down and alas time is too pressing to answer in sufficient detail.
Your question about the ability of the community or the obligation of the community to deal only with the things that ought to be dealt with at the centre: there is no doubt; it seems to me, that in the draft convention it does specify the things in which the community shall have sole competence. I think that’s very important, competition laws and all the other things that are there. The most important paragraph is the provision, which I read out; that anything which isn’t delegated to the community, to the union institution, shall remain with the member states. This was not a decision of the Union, this was not a decision of the courts, this was a decision of the member states. It seems to me that it is very important that if the treaty is going to be amended in this respect, it has to be done by the states themselves. Therefore if the states want to give certain other aspects of sovereignty to the union, they may do so, but only they may do so. And I think, I’ve experienced that, the court will be very, very slow to find that the community had been given, by the state, powers which were not very clearly spelled out in the treaty. I think that its just, as I understand it, like the case in the United States constitution, anything that is not part of the federal government remains with the state. And that’s what I said at the beginning, the fact that something is said to be a federation doesn’t kill you forever. It depends what powers you see in it, and what powers you don’t see in it. So, I don’t share your doubt, you may prove to be right, I won’t be there to see it as it won’t happen for a long time. I think that I shall be very surprised if there is this arrogation of authority.
The super state: I don’t read the Giscard D’Estaing draft as intending to create a super state. In my lecture I didn’t go into this in detail but there are many examples of provisions in the convention draft which recognise the importance of national states, which recognise the importance of leaving with the nation states, the various powers. We have to hold on to that in the IGC but I think that most countries in the community really would want to hold on to their national heritage, their national powers, very much in a way that we do. One or two big states don’t want that. Don’t assume that the French are going to give everything away merely because the rest of the community wants to take it away.
Questions of security and foreign policy are obviously very important. I’m not afraid of the creation of a foreign minister or foreign ministry for two reasons. One is that I think the various member states will insist on maintaining a considerable control over the foreign policy of the union. They will keep much of their own foreign policy. We cannot go on repeating the behaviour that happened in Kosovo; we cannot go on tolerating the sort of behaviour that happened over Iraq. Not to say whether the war is right or wrong, which has nothing to do with it. We cannot have member states behaving in one way and criticising the decision in a way, that, if I may say so, I think Chirac did. I am a very strong Francophile but I really do believe that as head of state and member of the European community, to behave in the way Chirac did was totally wrong. So the insistence in the new draft about the importance of pulling together is very important. We should insist on that.
The European court has got a huge number of cases and of course they will increase with the ten extra states. What I think is critical is that the European court should not try to sit as 25, except on major constitutional issues like the one you raised over there about the arrogation of power to the community. It should sit in groups of five or seven, or whatever it is that it is going to be. What is important is we should transfer as much jurisdiction as possible to the court of first instance. That is now 25 members. There is no reason why it shouldn’t have 50 members. They will never sit together. It was not intended that they should sit together. They will sit in chambers of three or five. We should sweep as much as we can into the court of first instance, with chambers of three or five getting through the cases more quickly than they can at the moment. There would the right to appeal but I think this is the solution – to have more courts at the level of first instance, and then to have a system of appeal.
The American lady, I didn’t answer her question, I owe her a drink afterwards… Baroness Hooper CMG, Chairman E-AG
I think you did indirectly. Thank you very much. I do recognise that there were other people who wished to raise questions but unfortunately time doesn’t allow. I think that in itself is a tribute not only to our speaker, but the topic, which he has discussed with us. At any event, this is the moment at which I am going to call upon our President, the President of the European-Atlantic Group, who as I have already said is my distinguished and exemplary predecessor as Chairman, but now as President, the successor of our much beloved Lord Limerick.”
Sir Michael Burton, KCVO, CMG, President of E-AG, Formerly H.M. Ambassador to the Czech Republic: “We have had a very learned discussion. I’m supposed to be from the rive droit which means that I am not approaching this from a legal point of view. Anyway, I’m not a lawyer and this faces me with a slight disadvantage. For example, I listened with great care between the distinction between constitution and a constitutional treaty and I have to confess I don’t fully understand it. John Gouriet over there on the left hand side, he and I defended the boundaries of the empire together forty years ago in the Persian Gulf and therefore we have a certain amount in common. But we don’t exactly approach this question from the same angle. He treated the draft European convention and the draft European constitution as if it was the end of civilisation and approached it with horror. I approach it with horror for a different reason and that is that it is very difficult for most normal people to get their heads around it. (laughter) Where does one start? I think where we should start is in trying to distinguish the real issues from the synthetic issues. There are a number of very real issues out there. For example, the workability of the new enlarged Union. How does it work? Can it work? And in this box comes the question of the extension of qualified majority voting and the size of the commission and so on. There is a whole range of problems there. There is the question of the single voice. Henry Kissinger’s famous question, ‘When you ring up Europe, who are you supposed to get on the other end of the line?’ That encapsulates a very real issue. There has been talk about a foreign minister. There may not be a European foreign minister at the end of the day. It is actually a question which is linked to the question of there being a permanent President of the council, the present position being that the council changes presidency every six months which can be chaotic and therefore there is a strong push including from this country for there to be a permanent President of the council. If that is agreed, and it is not at all sure whether that will be agreed, we probably won’t need a foreign minister as well. So there are a lot of very unclear issues out there. And then there are the questions which Lord Slynn drew attention to, such as the question of the charter of human rights. Those I think are very real issues. Then there are the synthetic issues. I have to say that I consider the extension of federalism and whether we are heading towards a European super state as synthetic issues. We are not going towards a European super state. There is no way this country is going to be involved in a European super state. Nor is France. It is not going to happen. We can stop worrying about it, we can sleep easy.
So where are we now? We are at the end of the drafting stage of the constitution, the draft has been handed over by Giscard D’Estaing and we now come to the real part which is the horse trading in the inter-governmental conference. And do not forget that our government has laid down lines in the sand, beyond which it will not go. There will not be the extension of qualified majority voting to issues of foreign and security policy. There will not be extensions of QMB to taxation or to immigration issues. These are our government’s lines in the sand. There again, I think we can rely and trust them. Those things will not happen. So, in this group, we are I think at the beginning of a discussion of this enormously important matter and we will have no doubt other meetings and other speakers who will also address them. I think we have been enormously privileged and lucky to have Lord Slynn of Hadley to set us off along this road today. Because he has broached all these issues with such authority and such reason and from his brilliant intellect but also from such a fund of common sense. We are extremely glad that we have had him this evening to start us off on this long discussion. Thank you very much Lord Slynn.”
Baroness Hooper, CMG, E-AG Chairman: “Thank you. If I may now wrap up proceedings by saying what I should have said at the onset, which is to extend a very warm welcome to all of the members of the European Atlantic Group and their guests. To that I can add my thanks to you for all being such excellent dining companions and for raising such interesting and important questions and comments in the course of the discussion. And in particular, I want to thank the two Sir Michael Burton’s. The rive gauche for opening the discussion and the rive droite for closing the discussion. I think it has been a splendid evening altogether. Thanks also must go to the special sponsors this evening, Janet and Peter Bolting. We hope to see a lot more of you both at our meetings. Thank you very much. Another part of the proceedings is the ceremony of the gift. Lord Slynn is a vice President of the European-Atlantic Group but as a speaker, he comes in for the special gift, which is a tie. Lord Slynn, you are now the holder of the tie of merit of the European-Atlantic Group. With that goes our very warm thanks and gratitude for being here this evening. Thank you all very much, and safe journeys home.”
