19
Revised transcript of evidence taken before
The Select Committee on the European Union
Sub‑Committee E (Justice, Institutions and Consumer Protection)
Inquiry on
The UK's Opt‑in and International Agreements
Evidence Session No. 4 Heard in Public Questions 31 ‑ 40
4.05 pm
Witness: Professor Damian Chalmers
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Members present
Baroness Quin (Chairman)
Lord Anderson of Swansea
Lord Blair of Boughton
Lord Dykes
Viscount Eccles
Baroness Eccles of Moulton
Lord Elystan‑Morgan
Lord Hodgson of Astley Abbotts
Baroness Liddell of Coatdyke
Lord Richard
Lord Stoneham of Droxford
Professor Damian Chalmers, Professor of European Union Law, London School of Economics
Q31 The Chairman: Good afternoon. Welcome, Professor Chalmers, to this evidence session. May I say on a personal note as an LSE graduate that it is good to be able to welcome you here? We thank you for the written evidence that you have already submitted to us and, hopefully, in today’s session we can probe a little further some of the points that you have made to us through that written evidence. I need to make just one or two points of clarification about the session. The session is open to the public. A webcast of the session goes out live as an audio transmission and is subsequently accessible via the parliamentary website. A verbatim transcript will be taken of your evidence and will be put on to the parliamentary website. A few days after the session, you will be sent a copy of the transcript to check for accuracy. We would obviously be grateful if you could advise us of any corrections as quickly as possible. Indeed, if after this session you wish to clarify or amplify any points made during your evidence or have any additional points to make, you are welcome to submit such supplementary written evidence to us.
Professor Damian Chalmers: Thank you.
The Chairman: Perhaps you would like to introduce yourself for the record and, if you wish, to make some brief opening remarks before we proceed to questions.
Professor Damian Chalmers: First, thank you very much, Lord Chairman, for inviting me here to give evidence. I am David Chalmers, Professor of EU Law at the London School of Economics. I was head of its European Institute for four years between 2007 and 2011. I was invited to give evidence on the Government’s position in relation to Title V in international agreements. I would say just as an introduction that while I am sympathetic to the political challenges that the Government find, which relate to the erosion of the safeguards of Protocol 21—we must remember that this was sought not just by this Government but by the previous Government in the treaty of Amsterdam—my evidence will be quite critical. I certainly do not agree with their legal position.
Q32 The Chairman: Thank you very much indeed. Let us proceed to the questions, the first of which is exactly about the interpretation of the JHA protocol. The Government say in their letter of 3 June and in their written evidence that the expression “pursuant to Title V” in Protocol 21 does not restrict the ambit of the protocol to measures that cite a Title V legal base. Is this a reasonable legal interpretation in your view?
Professor Damian Chalmers: For the Government’s position to be right, two things have to fall into place. The first is a particular interpretation of “pursuant”. It means anything where the content falls within the scope of Title V measures. I am thinking largely of non-EU nationals. That has to be there in the first place. The second has not been addressed by the Government in the evidence that I have seen so far and it is that the first thing would not by itself be enough, because there is still the question why that provision would prevail over treaty provisions. There has to be something that suggests a hierarchy between that provision and other provisions, particularly as they reject the traditional layman content test.
The second point is the easier to deal with, in my view, briefly. The Government do not provide any evidence of it that I have seen and there is none in the treaty to suggest that hierarchy, so even if “pursuant” had the wide interpretation that they suggest, there is still the question, if we have measures on development co-operation or citizens association, why this exclusion, which has the possibility of exempting the UK from EU legal obligations, should apply over other commitments. There is an ambiguity about that which to my mind they have not yet addressed. They need to say what the test would be. The traditional test was aim and content, but I have not seen anything that replaces that. They have this “flowing from”, but obviously entitlements can flow from other provisions.
That was the easy bit, so please tell me, Lord Chairman, if I go on too long about “pursuant”. As to the “pursuant” test—anything that contains content that might fall within the scope of Title V—I see a number of problems with it. It is inconsistent with Protocol 21—I will say why in a minute. It is certainly inconsistent with other-language versions of EU treaties. I do not think that those have been looked at. It makes other provisions of the treaty fairly incoherent and I am not sure that it is particularly consistent with the case law of the Court of Justice. When I received the Government’s legal advice, which was after I submitted my written evidence to the Committee, I assumed that they think that “pursuant” must have the same meaning, more or less, everywhere within the treaties. They are not asking for a specific interpretation just for Article 1 of Protocol 21. It is mentioned 77 times in the treaties and 33 times in the protocols, according to my count.
If you look at where “pursuant” is used in some cases, the provision does not make sense if you give it the interpretation accorded by the Government. They would have to find a new meaning for that provision. I would refer in particular to Article 60 on services, which allows states to liberalise services more beyond EU legislation. It refers to measures pursuant to Article 59, which is the area which the EU can legislate on, and says that you can take liberalising measures on services. It repeats itself. There is a similar problem of repetition in Article 169 on consumer protection. I think the British Government would have to explain the implications, some of which I do not think they would like as they are normally used to enlarge EU competencies, for other parts of the treaty. That is the first challenge.
The second challenge was a little more determinative. I decided that I should look at the other-language versions, because that is what the Court of Justice would do. I looked at the French and German versions. The French used “en vertu de”, which has almost the same associations, to my mind, as “pursuant”, although it is a little more consequentialist. But the German version uses “nach”. I do not see “nach” as “flowing from” at all; I see it as “according to” or “in accordance with” particular procedures, and that is how it has been used in case law by the Court of Justice.
I could find no cases that interpreted the treaties themselves, but there was plenty of case law that interpreted secondary legislation. I give you the Ben Alaya case, which is C-491/13. They did not use that interpretation. That judgment might actually be quite germane. It is about student visas. States can refuse student visas to non-EU nationals. They have to give a one-year residence permit if the student meets certain conditions about language, educational attainment, health and finances. In the judgment the court was quite clear: if the student meets these requirements, then pursuant to Article 12—there is nothing about the content, and in our case the courts are British—the permit has to be given. So there are a number of reasons why I do not find this interpretation very clear.
They have also been unclear so far on what the content of Title V would be, because historically the case law of the court does not just say that non-EU nationals are governed by Title V. It said that three things are governed by Title V: efficient management of migration flows, fair treatment of non-EU nationals, and combating illegal immigration by non-EU nationals. These are a series of tasks, as I understand it. It is unclear what the content is in so far as they are activity related.
I apologise for the length of my answer, but that is my legal opinion.
The Chairman: That is very helpful.
Q33 Lord Anderson of Swansea: May I first just follow on from that? Presumably the consistency of interpretation of the words in the treaty is part of the normal rules of the interpretation of the treaty?
Professor Damian Chalmers: Yes, although I would not want to overstretch the term “consistency”, if that does not sound too much like linguistic acrobatics. One would expect some consistency when the same term is used throughout the treaty, which I understand—
Lord Anderson of Swansea: You cited, for example, the German language. All the languages are equally valid in terms of intent?
Professor Damian Chalmers: I apologise. I misunderstood your question; I was thinking across different provisions in the treaty. But if one was talking about different language versions, they are all equally valid, and the court will look for the interpretation that makes most sense according to all of them, which is something of challenge, given the current number. My view is that that is not the interpretation given by the Government at the moment, and one sees that a little, I think, in the reactions by the national Governments.
Lord Anderson of Swansea: I believe you have seen the letter of 3 January.
Professor Damian Chalmers: 3 June.
Lord Anderson of Swansea: Sorry, 3 June.
Professor Damian Chalmers: I did see that.
Lord Anderson of Swansea: Because that same letter limits the principle of validity to measures where the JHA content is one of the main purposes rather than an ancillary one. Is this, in your view, consistent with a reasonable legal interpretation?
Professor Damian Chalmers: Mr Hardy was kind enough to send me the Government’s longer legal advice subsequent to that, and I read the two together because it was not clear to me what the Government meant by that paragraph, which I think was on page 2 of the letter of 3 June. Certainly the subsequent evidence that they gave is how I understand it, but the way EU law works between different legal bases is that the court says that to all intents, other than various circumstances, the predominant legal base is where the centre of gravity is, dependent on the aim and content, and the measure has to be based on that.
Now, my understanding of the Government’s position was that they accepted that and understood that as the law as well. However, they said that if there were other measures that were JHA-related, as they say, which fell outside this predominant purpose, they did not see themselves bound by it. That was my interpretation. If they are saying that, and my understanding might not be correct, there is a problem with that. The way EU law works is that we have a series of competencies. Either the EU has competence to adopt something on a particular legal base or it does not. If it falls outside that legal competence, the EU is acting ultra vires. The predominant purpose rule is there to deal with questions of overlap rather than anything else, so I do not see how it can get to the question of ultra vires; it deals with when there is almost too much EU competence—when there are duplicating competencies. The Government’s position seems to be that if you have a predominant purpose rule, it falls on JHA and they might be able to ignore it. I do not think that is the law.
Lord Anderson of Swansea: You have talked about the Government’s view. I think we are bound to ask some questions about the quality of advice that is available to them. You, for example, are an acknowledged expert in the field. Have you personally been consulted by the Government on the interpretation?
Professor Damian Chalmers: Not on this, no. I never have. If I could just say a word about that, I obviously disagree with their interpretation of “pursuant”. My personal experience of the Government Legal Service is that it has very high-quality lawyers. I would be critical of particular pieces of advice that the Government have put forward, but I would not want to generalise beyond that.
Lord Anderson of Swansea: I will not ask you to say anything further on that, but many years ago I was Principal Parliamentary Secretary to the Attorney-General, who consulted very widely in both academic and practitioner circles. Is it your view that these experts consult either you or your colleagues?
Professor Damian Chalmers: The simple answer to that is that they do not consult. I have to say that neither this Government nor previous Governments that I am aware of have consulted academic EU lawyers. The only exception to that, which I can remember at least, was a little during the Future of Europe convention, when the Cabinet Office set up a series of working parties. Of course, the process relied heavily on lawyers.
Lord Anderson of Swansea: Do you know any heavy lawyers who you respect who follow the Government’s line on this?
Professor Damian Chalmers: I have not seen any lawyers give an opinion yet on it, so I think it would be misleading for me to say that I know none, but I know none the other way either.
Q34 Lord Dykes: It is reassuring to have such an expert here today to ask questions of, because this is a minefield particularly for the non-lawyers on this Committee and elsewhere. So I apologise if we keep coming back rather repetitively to these themes because of the confusion generated by the 3 June letter. Coming back to this particular point again, because the ECJ had not yet fully considered the implications of the opt-in protocol, the Government’s evidence in writing suggests that the normal rules for determining Title V legal bases should not apply. Do you think that is a persuasive suggestion?
Professor Damian Chalmers: If I was to be critical, that would be the sentence that I would be most critical of in that letter. First of all, unfortunately for them the ECJ subsequently considered it in the judgment in December. There are two things. The aim and content rule that they are referring to has been around since 1990. It was prior to the Maastricht treaty and has gone through all kinds of treaty revisions, and it has never been suggested that it should be changed. That is the first thing. It has had a stability.
Secondly, before I come to the general point that I think your Lordship is raising, there was a case in 2007 concerning the protocol integrating the Schengen acquis. The UK wanted to participate in some of it but was not allowed to because it was vetoed; on the basis of that measure other states have a veto. That case was about FRONTEX (United Kingdom, C-77/05: EU C: 2005:764) . This is an identical field. They used the aim and content rule for that. This was just as sensitive. It went to a similar-style protocol that could apply to policing, judicial co-operation and criminal matters. It applied, of course, Title IV, which is on issues surrounding non-EU nationals. This has not been mentioned.
The third point is that this is not how I understand, and not how the Court of Justice understands, its judgments. They are not constitutive of the law. I know that there is some criticism of its activism by some parties, but its perception of its role is that it is interpretative of treaties: that the law is, in a sense, pre-existing. Its position is impossible, because not every legal situation on a level here has been determined by the court. That is why parties litigate; there is that uncertainty. So I was not very impressed by that statement.
Lord Dykes: Thank you for that.
Lord Richard: That leads on to my Question 4, but before I ask it can I just comment on what you have said so far? Lord Anderson asked you about the government lawyers who have given this advice. It is a bit hard to castigate government advisers for getting it wrong, because surely the function of government advisers, as I was once told when I joined the Foreign Office, was not to tell me what the law was but to tell you what legal arguments you could use to justify the policies that you wanted to pursue. Would you agree that that is very much the theme behind this lot?
Professor Damian Chalmers: I apologise if I was overly critical when I replied to Lord Anderson in my evidence. My personal view of the Government Legal Service is extremely high. I would be very critical of the particular sentence that Lord Dykes referred to. In relation to their role, the government lawyers understand it; they have to represent their client and give them the advice that can best serve this Government’s interests. That is what I as a citizen of the UK would expect them to do, and that involves some legal adventurism. That is my own view of what a government lawyer has to do. However, you have to say the law as you see it at a certain point. I spent a lot of time, I suppose, damning the “pursuant” test of this adjust and giving reasons why I disagree with it, because I think it is a particularly challenging interpretation. If it was arguable, I would accord with your views.
Lord Richard: But the interesting fact that we have in front of us on this is that, as the Government say in their own evidence, no other member state or EU institution supports the UK’s position that the opt-out can apply in the absence of a Title V legal base. To that we can add, I think, that no respectable academic lawyer, at least none who has emerged so far, supports the Government’s position on this.
Professor Damian Chalmers: Maybe I risk sounding contradictory, but I go back to what I said at the very beginning in my opening statement to the Committee about evidence. The political context for this is particularly challenging, and it is this: that through a series of judgments that allow the EU to engage in international agreements across almost all areas of migration, asylum and humanitarian policy, you have the possibility that the safeguards for the British Government position that were negotiated under Protocol 21 have been largely eroded. I think that is the political context that worries them. I am sympathetic to that, and I think one can be sympathetic to that on the basis that this was negotiated by both previous Governments and this Government, and it is a long way from what was anticipated.
Lord Richard: But it does not justify bad law.
Professor Damian Chalmers: I will let the Committee decide what it thinks about that.
Q35 Lord Richard: In your written evidence you say that the Government’s unilateral assessment of JHA content may violate the obligation of loyal co-operation in the negotiation of EU agreements. The Government, on the other hand, say that they cannot modify their policy simply to avoid conflict with other member states and the institutions. To what extent are the Government right, and how do you assess the risks of the UK breaching the obligation of loyal co-operation?
Professor Damian Chalmers: My evidence on that point was based on a 2010 case in which the Commission successfully took Sweden before the Court of Justice. Sweden had behaved a little unilaterally in relation to the Stockholm convention, which deals with POPs (Sweden, C-246/07: EU: C:2010:203). It had adopted a unilateral negotiating position. In that judgment, the Court of Justice said that there are duties of co-operation that are legal duties—they are not just duties of what is politically desirable—in the negotiating process that bind all member states. I went to check this, and this is in paragraphs 74 and 75 of the judgment. It said that when the Commission has submitted those proposals—so before it actually has a mandate from the council of member states—there are special duties of action and abstention that bind all member states to ensure that there is a concerted strategy. Once the mandate is there—this is in paragraph 75—states are under a duty to ensure coherence, consistency of action and representation.
Now, those are the legal duties that bind the Government. They are a little general, and they have been repeated in three or four cases, but the main recent case was the Swedish case, where a state basically put forward unilateral proposals that, as the Commission saw it, undermined the EU position. My own view is that if you had a situation where the Commission had communicated its position and a Government, in this case the UK—it would be even more problematic if a mandate had been set—went around saying, “Well, we are not sure that we can be bound by this or that provision because of the legal uncertainty”—I would point one here particularly to things like investment and establishment provisions—it is unlikely to be something clear like the free movement of persons, where everyone can say that it is in Title V—which both give the right of legal persons and natural persons, so it covers everything from big business with subsidiaries to self-employed one-person businesses doing cleaning or whatever, so it has significant effects for migration—that would seem to me to be in breach, as I read it, of the legal duties set out in the Swedish case.
Lord Richard: Sorry, I do not follow that. Are you saying that when the Commission produces a proposal, at that stage, before it becomes a mandate, before it goes to the Council—? But surely at that stage that is the very moment when Governments should be in a position to state their position.
Professor Damian Chalmers: I think they can state that position to the Commission according to the case, but whether they can go off and start negotiating or saying, “This does not bind us, so we will negotiate the position in the context of international negotiations by ourselves with the other parties to the negotiations”, is less clear. The phrase used—and your Lordship is absolutely right: this is very vague—is “special duties of action and abstention”. That certainly does not prohibit the Government from contesting the Commission’s interpretation of what they can and cannot negotiate.
Lord Richard: They can argue with the Commission, but they cannot go outside the Commission.
Professor Damian Chalmers: Yes, or just say, “We are not arguing”—
Lord Richard: They cannot go and argue with the other parties to the negotiation.
Professor Damian Chalmers: This duty of loyalty, as it is sometimes called, is precisely that; it is saying that if you have problems, come to the EU institutions and try to resolve it with them rather than act in a maverick way. This test, of course, which suggests that you can unilaterally decide your position, admits, or suggests at least, that the UK does not see this duty of loyalty applying to it.
In terms of the legal risks, it is difficult to say. The big challenges are possibly not with EU states but with non-EU states. If you are negotiating particularly on a multilateral setting and those states are unclear who the EU speaks for or whether the United Kingdom has the authority to speak for itself, they will get very frustrated and it can impede negotiations because things are just not seen as deliverable.
Lord Richard: Thank you.
Q36 Lord Elystan-Morgan: My question is Question 5. It has already, I think, been pretty substantially harrowed over, but I wonder if I could widen it somewhat in this way. It seems to me that the European Court of Justice, in all these relevant cases, has been concentrating upon the question of whether or not there is a JHA significance or content. As you say in, I think, paragraph 2 of your report, JHA content is not a term or, it appears, a concept of European law. In other words it seems to me, therefore, that the European Commission is at fault to this extent: it has been deliberately aiming away from the bull’s-eye and going around the target in every way in asking, “Is there is a JHA content in this case?”. It finds that there is not, so it has not asked whether there is a specific legal basis. If this was an issue in domestic British law, someone with the necessary authority would have decided it there and then by now. In other words, is there a prospect that there will be an utterly determinative judgment on the question of whether or not a specific legal base is an absolutely concomitant of such an agreement as this—or am I indulging in a pipedream?
Professor Damian Chalmers: I might not have understood your question, so please correct me if my answer misunderstands it. It is unlikely that there will ever be a fully determinative question, because the way this litigation works, be it an autonomous measure—regulations, directives and international agreements—the Commission puts something forward. It traditionally likes big general bases, such as development, that get maximum leverage vis-à-vis non-EU states and give a sweeping mandate, so sometimes it will push the envelope. Sometimes an agreement is made and then the Council will challenge it. That is the push and pull. In so far as all international agreements are a little bit different—judgments will focus on an international agreement that deals with items a, b and c, and then an international agreement comes along with items b, c and d—you will always get a little bit of tension about it. I do not think it will ever be fully resolved, and it is not fully resolved in other fields that are more established, such as the single market and Article 114, which deals with that.
That being said, there are two challenges in this field that make it very difficult for lawyers who want certainty. The first, which in my view is the Court of Justice’s problem, is that very ambiguous scope is given to what is covered by Article 79 in particular and in Article 25(1): the efficient management of migration, fair treatment—. Then you have these other things—measures that promote free movement of labour, such as the EEA, the EC, Switzerland—that are found to be outside it. I find it a very unsatisfactory distinction. It is both ambiguous and, I think, leads to all kinds of misunderstandings. That is the first problem: that Article 79 is not sufficiently clearly defined. In so far as the court has restricted in some ways, I think that is unsatisfactory.
The other feature that has happened—I put this towards the end of my written evidence—is that the development competencies and now the association competencies have been developed so widely that they can subsume Title V, so when you have a situation where almost all readmission agreements negotiated by the EU will be done in the context of a wider development agreement, it will be very common to have to offer the other states something, so you are getting to the situation where almost everything of non-OECD states will be done under development. Development allows you to do anything that “contributes to the economic and social development of the third state”. So just giving them a bit of money is sufficient.
Alongside that, there are association agreements. In the court’s December judgment on EU/Turkey, it said that the association agreements can cover anything that in the TFEU. So the first problem is the unsatisfactory scope that is given to Article 79. The second problem—and this is why I am sympathetic to the Government’s wider concerns—is the huge scope that is given to these more general competencies, particularly association and development. Although it has not come up yet, the cases on the EEA and the EU/ Switzerland agreement are on the basis of Article 48, which is the co-ordination of social security. They have not yet had a case based on Article 46, which is the provision that allows the EU, within the EU, to give full legislative remit, if you like, to the free movement of workers. There has been a lot of the debate about migrants’ benefits, for example, and the legislation has been adopted on the basis of Article 46.
It is clear after those judgments that that can be used for international agreements. I am not saying that the EU has any proposals for this, but it now seems perfectly possible that the EU can, for example, require if it wanted to—it has the competence—equal treatment with UK nationals for social advantages for anyone in the world. It could pass a law to that effect under Article 46 if it wanted to.
Lord Elystan-Morgan: So the generality of it is this: Britain has entered into a vast number of these agreements under Title V. If you were to ask in respect of many of them whether Britain’s situation was valid or invalid, bearing in mind that it is in a minority of one among 28 states, I suppose on the one hand the answer would be maybe, because it has not been adjudicated upon by the Court of Justice, and even if it were it would probably dodge the point. On the other hand, yes, technically, it is right, because it has not yet been quashed, and therefore it is good European law. That, to my mind, seems to be extremely unsatisfactory, but there we are. I think it draws to the point.
The Chairman: Were any of these problems foreseeable when the protocol was signed? As far as you know, was there any discussion about the connection with other parts of the treaties, in particular in association agreements, development agreements and so on?
Professor Damian Chalmers: I think there must have been some discussion, because there is a reference to international agreements and provisions of international agreements in Article 2 of the protocol. I suspect that there was not more detailed discussion—at least, not that I was aware of—and I think government lawyers would be in a better position to say something about this.
Going back to Lord Dykes’s point about the experts, one of the problems that we as experts have is that we dwell too much on the past. Historically, the textbooks and the literature on this looked very much at autonomous measures—so, regulations or directives dealing with asylum, temporary protection, family reunification, irregular migration and so on. There was relatively little, because this was seen as very narrow, on association agreements, for example, even though they had caused significant political problems in their interpretation, particularly with Turkey and Germany as early as the 1980s. So in that sense I would have to say that everyone took their eye off the ball a bit.
I was asked a bit about whether the Commission was being opportunistic. Most association agreements are very established and very old. The bigger challenge is actually the ones on development; I would be surprised if anyone anticipated that.
Q37 Lord Blair of Boughton: I want to look at the impact of the Government’s opt-in policy in relation to international agreements as a specific on the general state of legal certainty within the EU and in the EU’s relations with third countries. We have talked about loyal co-operation and about the legal base, but is what is happening with international agreements in relation to the opt-in impacting the status of legal certainty and the situation around it?
Professor Damian Chalmers: I think the Government will be able to give you a more satisfactory answer than me in terms of knowing what is happening with other Governments. The Government have so far been very unsuccessful in their litigation strategy in this field. I do not know whether this is a satisfactory answer to your question but the Government can have legal certainty if they choose a very restrictive interpretation of what the opt-in grants them, which is not very much, because Title V is not used much for international agreements. I can see why they want to try to lever the Title V opt-in into these other competencies: to protect what is in Protocol 21. But in so far as it is legally difficult to do that, this generates legal uncertainty. Of course, the Government and this Committee have to decide whether that price is worth it or not.
Lord Blair of Boughton: Thank you.
Q38 Lord Hodgson of Astley Abbotts: Can we talk about the Government’s justification for the opt-in rights which they believe the Commission is circumventing—what they call legal-base shopping? In your assessment is there evidence that this is happening, has happened, is likely to happen? Has this been thought about?
Professor Damian Chalmers: I think my answer would have to be no, but a circumspect no in the sense that I do not have a sense that the Commission hates Protocol 21 and is opportunistically trying to destroy it at every opportunity and that there is some grand scheme. I am not saying for a minute that that is in the question, but if that is out there I doubt that that is happening. What has traditionally happened with the legal base is that the Commission has the right to propose a legal base for legislation and for a mandate, and it will always choose the legal base that best suits its interests. That we have to expect, I think. I mean, the Council is there to challenge it, as other member states are, before the Court of Justice. Do I think the Commission is going about this in a highly aggressive way? No, and I will give some examples of why, if I may. If one looks to other cases that the UK lost—EU/Switzerland, EEA, EU/Turkey—these were existing agreements. The Commission just wanted to enact measures under existing agreements and existing competencies.
Now, the one that is different is the Philippines case on development co-operation. Operating the counterfactual from the Berlaymont’s, the Commission’s, position, we said, “What they should have done instead was not basic development but something on about six different legal bases: a bit on transport, a bit on migration, a bit on trade”. They would say, “What is the purpose of this development co-operation base? We have an empty competence here”. So while I would be very critical of the court’s reasoning in both Philippines and, I have to say, the EU/Turkey case—I think it has given the Commission too wide a carte blanche—I do not see rampant opportunism by the Commission. It is a judgment call.
Lord Hodgson of Astley Abbotts: I think your answer is rather more nuanced than the one that we have had from other witnesses, who have been rather more definitive in saying that there is no particular evidence of this. I think you are suggesting that at the edges there may be some clever choice of legal base in order to—
Professor Damian Chalmers: Yes, I think that is a fair interpretation. Going back to what I said on “pursuant”, yes. I am happy with that interpretation of the evidence.
Lord Elystan-Morgan: Could I just ask this question, Professor? Those of us who belong to the vocation of the law and have lived with English law I suppose regard all the European authority as being statute based, and if it does not come from a specific statute it is not there, whereas we know with the High Court of Justice in this country there is an inherent fundamental jurisdiction that goes beyond any statute. Is there any suggestion by now that there is an inherent power in the European Union to have an authority over and beyond the creation of statute?
Professor Damian Chalmers: One phrase was used in a judgment in 1991 that suggested limits to the powers of amendment of the treaties and has never been repeated. Two academic articles published in the early 1990s, which were very much seen as the heyday of if you like judicial integrationist policy, suggested that there might be inherent jurisdiction. I do not think anyone has seen it in that way since then, and most national constitutional courts certainly do not see it that way, including the Supreme Court here in the United Kingdom. They both mentioned the possibility of the Court of Justice and the EU institutions acting ultra vires. The German constitutional court is going to give a significant judgment on that in the next couple of months in relation to what the ECB is talking about.
The Chairman: Thank you. Did you want to come in, Lord Richard?
Lord Richard: I just wanted to come back to Lord Hodgson’s point. He says that you gave a more nuanced answer than answers that we have had before in evidence, but is not the position really this? The Commission, understandably I suppose, wants as wide a legal base as it can get in order to do the job that it thinks is necessary. Individually, member states might want to argue with that, but it is not a question of trying to do the UK down in order to resize the legal mandate. The size of the legal base is necessary for the Commission to pursue the policies that it wants to pursue.
Professor Damian Chalmers: I hope that I did not give the other impression. It wants to get the job done as effectively as it can, but I think in relation to Lord Hodgson’s point that in pursuing that agenda—I would not use the term “legal-base shopping” because I think it is a little too pejorative and tendentious for my taste—it will obviously push the envelope and push at things that national Governments and the European Parliament might not be comfortable with in some circumstances.
Lord Richard: But there is nothing wrong with that, surely.
Lord Hodgson of Astley Abbotts: The reason why I have this concern—taking this to a slightly wider issue—is the reaction to what happened at the EPPO with the yellow cards and so on. The thing just rolled on irrespective of what national parliaments thought. Therefore I am interested in probing with you whether this is another example where the envelope is being pushed—yes, that is probably right—or whether this is a bit more than the envelope being pushed.
Professor Damian Chalmers: I do not think it is more than the envelope being pushed. This may be a bit beyond the evidence that I have been called to give today, but I think the real structural problem, which is why it comes up, is that the Commission has the power of initiative, or the power of mandate, so it can set the agenda. It decides what legal base we will first of all talk about, and while you have an institution with that power of agenda to decide what others talk about, its views on the legal base will always be a little more important than some others’. All institutions, all Governments, obviously—this is what we are discussing today—have their views on this, and they should pursue their interests, but the structural position of the Commission gives us a bit of an advantage here.
The Chairman: Thank you. You have touched on some of the aspects of our remaining questions, but Viscount Eccles, would you like to come in here?
Q39 Viscount Eccles: Can I pursue the point about pushing the envelope, which is in my question somewhere, in relation to the Philippines? From what you said at the very beginning, is it possible to draw the conclusion that we are really discussing politics and not law at all?
Professor Damian Chalmers: I would say no to that, because I do not see them as alternatives.
Viscount Eccles: Is that to strike a balance? In the days when I negotiated commercial agreements with all sorts of European “partners”, it was absolutely clear that they took a completely different approach to law from the one that I had been brought up on. You say that the initiative starts in Brussels—and I cannot think that we could disagree with that—and that everybody fights his own corner as best he can, to paraphrase a bit. At the end of the day, the question for this Committee, I think, is how much we should worry about “the rule of law” as we understand it in this country and how much this is in fact a political issue and not a legal issue.
Professor Damian Chalmers: In that sense, I would just say that it is a political issue in that most laws can have significant political consequences which politicians may want to do something about. In relation to the judgments on which I am giving evidence today, I said no initially because there is a process of interpretation, precedent and legal reasoning that will confine this. So there is a legal element. Does some part of it raise significant political concerns? Yes, and there are two concerns that I would raise. The first concern that I would raise—and I do not want to accuse the institutions of misinterpreting their role; it may have just been a problem with the way in which the treaties were designed—is about these very general competencies and association development. Going back to your point about the rule of law and the principle of limited powers, particularly for international organisations, I really do wonder what the German constitutional court, which has very strong views on the EU having only limited powers, will say about some of these international agreements in due course. So there is, first of all, that concern.
The second is that whatever the strength of the Government’s legal position about the meaning of “pursuant”, the safeguards set out in Protocol 21 have been largely eroded. They are not there in a way that any Government has anticipated in the last 50 years, and I think that is something for politicians to be concerned about. Protocol 21 does not deliver in the way most people would expect just reading that protocol and forgetting about the rest of the treaty. That is politically very significant.
Viscount Eccles: Thank you very much for that. The point that you made earlier—that Protocol 21 has not worked in the way that lots of people expected—is a fairly general description, because who are the people and what did they expect? If you were to put in an additional note, it might be very helpful to have your take on what has happened to Protocol 21.
Professor Damian Chalmers: I have to be careful when I say “people”, as it might be too loose a phrase, but undoubtedly both the John Major and Tony Blair Governments saw this pretty similarly. When the Treaty of Amsterdam was being negotiated, there were two parts to the protocol on what was then Title IV of the EC treaty, which dealt with migration and asylum. A whole thing was being ring-fenced: both the point about national borders and the point that the UK would only participate in EU measures if it wanted to. Now, when many measures are called international agreements, that choice has been lost, and I do not think that the extent of that has ever really been discussed or appreciated by decision-makers until now.
The Chairman: How do you think this could be addressed? We are faced at the moment with one Government unilaterally interpreting the situation, but that in itself has consequences for the rule of law, as well as the other problem of the European Commission pushing the envelope or being imaginative in its approach. Can you see any way in which this kind of issue can be resolved?
Professor Damian Chalmers: One possibility, and this is me thinking on my feet a little, is that early on with international agreements you had inter-institutional agreements—negotiating mandates, consultation of the European Parliament at the time when it had no powers in the field of commercial policy and all these things. It might be possible to get some—this would require a lot of negotiations between the United Kingdom and the other states—inter-institutional agreement on some of the things that would be covered by association and development and some of the things that would not. That might be one way of doing it, so that you structure expectations about what the Commission can go off and negotiate or seek to negotiate with other states. Otherwise, you are into treaty amendment.
Lord Dykes: Would the broad background to this also be that the overall notion of respect and adherence to the treaties is stronger in a large number of member states and not so strong in one or two other member states?
Professor Damian Chalmers: I do not think so. You would have to elaborate a bit, Lord Dykes. I do not have that sense.
Lord Dykes: You do not have that feeling.
Professor Damian Chalmers: No.
Lord Anderson of Swansea: In a perfect world, if there were some inter-institutional consensus, that would not prevent occasions when the UK would be on its own.
Professor Damian Chalmers: It would not, but the agreement might say that the Commission cannot negotiate these things and bind the UK, although it may be that that is just not politically realisable. Within the EU, my view is that inter-institutional agreements are fairly well held to and that institutions observe them. The challenge for the UK is that it is so isolated on this. It has particular problems not just because of the opt-out but because it is a non-Schengen state. It would probably have to make concessions that it might not want to have to make. I am not saying that it is a perfect alternative—it is a pretty unsatisfactory alternative—but I cannot see what else there is otherwise. Otherwise, you have to amend the treaties.
Q40 Baroness Liddell of Coatdyke: I hate to bring you back to the mundane, because that exchange was very interesting, especially for those of us who do not have the vocation of the law. You previously mentioned case law. A lot of our previous witnesses have thought that ECJ case law on Title V has reached the point where it will not be reversed by further case law. Do you agree with that? Is your position in any way influenced by the recent judgment on the Turkey agreement?
Professor Damian Chalmers: The reason why we have lawyers is that nothing in the law is ever certain—and the lawyers make a lot of money from it. I have to be a little careful, but if I was betting money I would say that I would expect the current trajectory to remain stable. There are two reasons for that. The Court has cited itself on this, and once it has done that it is very unusual for it to reverse it. Also, a lot of that case law is quite recent. The Court has said three or four times, “This is what we have done”, and only one Government are isolated on this—perhaps because it has a particular interest and situation because of Protocol 21—so I would expect the case law to remain pretty stable. That does not mean that there will not be significant interpretations on what efficient management of migration means, or fair treatment of non-EU nationals, but the scope has already been set.
The Chairman: Thank you very much indeed, Professor Chalmers, for all the information that you have given us, both written and oral today. It has helped the Committee a lot in its consideration of this subject, along with some humour from time to time. With many thanks, the Committee will now go into private session.
Professor Damian Chalmers: Thank you very much.