The Report examines the report of the Working Group on "Freedom, Security and Justice" of the Convention on the Future of Europe, and the draft Treaty Articles based on it. The proposed changes are far-reaching and controversial.
We are concerned about the way the Working Group made such far-reaching proposals on the basis of such a narrow range of evidence.
Operational co-operation
A standing committee is proposed to ensure that operational co-operation on internal security is promoted and strengthened. The accountability of this committee must be clarified.
Role of national parliaments
Harmonisation of criminal law and procedure and extension of the use of the Community method would substantially reduce national parliaments' role and freedom of action as regards criminal justice.
The Inter-Governmental Conference should strengthen the role of national parliaments by providing for their involvement in defining the strategic guidelines and priorities for European criminal justice policy, as opposed to merely commenting on policy afterwards.
The proposed new role for national parliaments in respect of subsidiarity is important in giving national parliaments for the first time a formal role in the EU's legislative process, but in its present form is inadequate. The Government should press for a "red-card" mechanism, which would prevent a proposal from proceeding if a certain proportion of national parliaments or their chambers objected on subsidiarity grounds.
Scrutiny of Europol by the European Parliament and national parliaments should include consideration of its forward work programme rather than simply focusing on its annual report. There should be a joint parliamentary committee to scrutinise Europol's activities.
As regards the proposed evaluation of EU policies in this area, national parliaments should be able to scrutinise the specification for the evaluation exercise as well as the content and the results, and should be consulted as part of the evaluation process. The evaluation should be independent and should relate to Union legislation rather than simply to policies.
"Collapse" of the Third Pillar
A "common general legal framework" incorporating the existing Third Pillar is proposed, in which the distinctive features of the Third Pillar would largely disappear. Any such framework should have at its heart the human rights of the individual citizen, whilst respecting the national identities of the Member States. The impact of the removal of the Third Pillar would largely depend on how far the use of qualified majority voting (QMV) was extended and the role and powers given to the European Court of Justice.
Procedures for adopting measures in the field of "freedom, security and justice"
The proposals for a shared right of initiative for measures relating to "freedom, security and justice" represent a reasonable compromise between a Commission monopoly of the right to make proposals and the risk of a range of inconsistent proposals being made by individual Member States.
The proposal that all measures in the field of "freedom, security and justice" should be adopted using QMV and co-decision gives the desire for simplification precedence over securing democratic legitimacy, as well as transferring substantial power from national parliaments to the European Parliament. National parliaments in the Member States forming a minority in a vote will be effectively marginalised, and will be reduced to "rubber-stamping" the principles of framework laws with which they do not agree. This is hardly an appropriate way for an enlarged European Union to increase its democratic legitimacy.
The choice of legislative procedure should depend on the subject-matter of the proposal, and QMV and co-decision should be limited to cases which do not affect fundamental issues of sovereignty. Criminal law and procedure do not fall into this category and, if legitimacy and public acceptance are to be secured, should remain a matter which must be agreed by all Member States.
Harmonisation of criminal procedure
The latest version of the draft Articles provides for harmonisation of criminal procedure only in respect of cases with cross-border implications. We welcome this narrowing of scope; any harmonisation of criminal procedure should be limited to achieving such minimum standards as are necessary to secure mutual recognition of judgments and decisions in particular cases, and should complement the existing procedural guarantees provided by the European Convention on Human Rights.
The proper operation of a system of criminal justice depends on a degree of ownership by the people of the country concerned and on democratic accountability. The subject-matter of criminal procedure is therefore not appropriate for qualified majority voting or the co-decision procedure. In particular, rules on the admissibility of evidence cannot properly be adopted in this way, since such rules are so closely connected with the different modes of trial in the Member States.
Harmonisation of substantive criminal law
The draft Articles provide for minimum rules on definition of offences and their punishment if indispensable to ensure the effectiveness of Union policy in an area which has been the subject of harmonisation measures. Our main concern here is with the legislative procedure proposed. The scope of criminal liability within a Member State is primarily a matter for the national parliament. Harmonisation of criminal law within the European Union should proceed by agreement of all Member States, or it should not proceed at all.
Jurisdiction of the European Court of Justice (ECJ) over criminal matters
The draft Articles would extend the ECJ's jurisdiction to what is currently the Third Pillar. The jurisdiction of the ECJ should not be extended to police and law enforcement operations, or to the exercise by a Member State of its responsibility to maintain law and order or internal security, and an exclusion along the lines of the existing Article 35(5) EU (relating to law and order and internal security) should be maintained.
We do not see any justification for removing the "opt-out" from ECJ jurisdiction which is presently provided for in Article 35(2) EU. In any event, it is not appropriate for Member States to be required to permit lower courts to refer questions for preliminary rulings in criminal matters.
European Public Prosecutor
The proposal to create a European Public Prosecutor, to prosecute perpetrators of crimes against the EU's financial interests, is impractical and likely to remove the prosecution function from democratic accountability. It also has the potential for creating an engine of oppression.
Conclusion
Criminal justice is a matter which identifies the State, and, in the case of the United Kingdom, also the identity of parts of a State. It requires a degree of ownership by the public if it is to function properly, and the only forum in which such ownership can be established is the national parliament. The European Parliament is not sufficiently close to the public to secure democratic legitimacy in this sensitive area, and we do not consider that a substantial increase in its power at the expense of the national parliaments can be justified. Equally, we do not believe that democratic legitimacy is secured by a system of voting which allows Member States to be outvoted and thereby obliged to introduce changes in their criminal law and procedure with which they do not agree. Harmonisation of criminal law and procedure should proceed by agreement of all Member States or it should not proceed at all.
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