settlement for the UK within the European Union, which did not take place,
but it constituted a statement of the existing law, in Section C (Sovereignty):
“5. Article 4(2) of the Treaty on European Union
confirms that national security remains the sole
responsibility of each Member State. This does not
constitute a derogation from Union law and should
therefore not be interpreted restrictively. In exercising
their powers, the Union institutions will fully respect
the national security responsibility of the Member
States.”
Mr Eadie submits that this can be relied upon pursuant to Article 31 of the
Vienna Convention on the Law of Treaties 1969.
37.
As set out above, the Grand Chamber in Watson did not refer to any of the
matters set out in paragraphs 32 to 36 above. It did however record, in
paragraphs 69 and 72 of the Judgment, Article 1(3) of the EPD. It considered
that there was an apparent conflict (or “overlap”) between Article 1(3) and
Article 15 of the EPD, and considered that Article 15 would be “deprived of
any purpose” if it was not to be read, despite Article 1(3), as “meaning that
such legislative measures fell within the scope” of the EPD. This would
appear to have the consequence that:
i)
It would be Article 1(3) that would thus be “deprived of any purpose”;
ii)
Effect would thus not be given to Article 4 of TEU; and/or
iii)
Contrary to EU law, Article 4, a primary provision of the Treaty, would be
replaced/contravened by secondary legislation, namely Article 15 of the
Directive, notwithstanding Article 1(3).
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