House of Commons - European Scrutiny

Select Committee on European Scrutiny Twenty-Sixth Report

Role of national parliaments

15. Working Group X's proposals and the draft Articles would have a significant effect on national parliaments. Harmonisation of criminal procedure and substantive criminal law and extension of the use of the Community method (including qualified majority voting and co-decision) would substantially reduce national parliaments' role and freedom of action as regards criminal justice. We examine this aspect in subsequent sections of our Report.

16. However, Working Group X believed that national parliaments should continue to play an important role in this area and made the following proposals, not all of which are reflected in the draft Articles:

"— involvement of national parliaments in the definition by the European Council … of the strategic guidelines and priorities for European criminal justice policy…

— regular inter-parliamentary conferences on the Union's policies in this area…

— use of the 'subsidiarity early warning mechanism'…in particular for the specific aspects of subsidiarity in criminal law matters, i.e. where it is questionable that a crime has actually a 'cross-border dimension' and is of a serious nature…

— recognising the continuing role for national legislation through exclusive use of directives (or successor) in approximation of substantive criminal law;

— involving national parliaments in the mutual evaluation mechanism…;

— involving national parliaments in the consideration of annual reports on the activities of Europol."[18]

17. Nothwithstanding these proposals, several of our witnesses felt that the role of national parliaments was diminished in the Working Group's report and in the draft Articles, and that the democratic accountability of the EU would suffer as a result. Mr Heathcoat-Amory said that "I think that the public look to us primarily to guard their rights in criminal justice and I think that the link gets too long when this is supposed to be done in a European institution."[19] Professor Guild told us:

"It appears to me that there is an attempt to give increasing democratic legitimacy exclusively to the European Parliament to a diminution of the role of national parliaments. In terms of actual practical arrangement, it seems to me that the position which a number of parliaments in Member States have taken, this one in particular, that the national level is in fact an extremely important part of the democratic process and is in fact closer to the population and interests than some other levels means that there is a very strong reason why national parliaments should be involved in discussion of measures, the mechanisms for access to information, scrutiny and a mechanism to input into policy at the European level." [20]

This view was shared by Mr Jakobi of Fair Trials Abroad. He and Mr Heathcoat-Amory both also pointed out that national parliaments lacked a sufficiently effective structure to give them a collective voice at European level.[21]

18. We found it particularly regrettable that there was no reflection in the draft Articles of the Working Group's first proposal — that national parliaments should be involved in the definition of the strategic guidelines and priorities for European criminal justice policy. Involvement of this kind would help to meet the witnesses' concerns by giving national parliaments a role in advising on policy, as opposed to merely commenting on it afterwards. We urge the IGC to strengthen the role of national parliaments by making provision for their involvement in defining the strategic guidelines and priorities for European criminal justice policy.

19. Article III-155 contains the main provisions concerning national parliaments. It provides that:

"Member States' national parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter [Area of Freedom, Security and Justice] comply with the principle of subsidiarity, in accordance with the arrangements in the Protocol on the application of the principles of subsidiarity and proportionality.

"Member States' national parliaments may participate in the evaluation mechanisms contained in Article III-156 …and in the political monitoring of Europol's and Eurojust's activities."

20. The first part of the Article relates to the proposed "early-warning mechanism", whereby if a third of national parliaments or their chambers object to a proposal on grounds of subsidiarity, the Commission must reconsider its proposal. Mr Heathcoat-Amory expressed scepticism about it, arguing that, as subsidiarity "has failed for the last ten years I am not really sure that writing it into a constitution will do any better." [22] Professor Peers considered the early-warning mechanism inadequate: "What should … be a criterion of any fundamental changes to the national system of criminal justice is that it should be possible for one national parliament to request a review, or even perhaps to have a blocking effect… Similarly, on human rights grounds, a group of national parliaments, perhaps even one, should be able to object on human rights grounds to a European Union measure going through and perhaps have the possibility to block it. This is why subsidiarity, though it is useful, is not enough."[23]

21. We welcome the fact that a role for national parliaments in determining questions of subsidiarity (a key recommendation in our report on Democracy and accountability in the EU and the role of national parliaments)[24] has found its way into the draft Articles. As we have argued elsewhere, the provision is important in that it gives national parliaments for the first time a formal role in the EU's legislative process. However, in its present form it is inadequate because objection by the specified proportion of national parliaments could simply be overridden by the Commission. We have proposed a stronger mechanism, which would be particularly important in respect of the "Area of Freedom, Security and Justice" since this affects issues of national identity.[25] Therefore, while we welcome the lower threshold for requiring the Commission to reconsider a proposal relating to the "Area of Freedom, Security and Justice" (one quarter of national parliaments or their chambers in place of one third), we urge the Government to press for a "red card" mechanism, preventing a proposal from proceeding if a certain (higher) proportion of national parliaments or their chambers object on subsidiarity grounds.

22. With regard to the part of Article III-155 concerning the scrutiny of Europol's activities, we believe that such scrutiny should go beyond the retrospective consideration of annual reports (the Working Group's proposal). National parliaments need the opportunity to comment on Europol's strategic direction and work programme if their monitoring of it is to be effective. We urge that the scrutiny of Europol's activities by the European Parliament and national parliaments include consideration of its forward work programme rather than simply focusing on its annual report. We support the proposals which have been made for a joint parliamentary committee to scrutinise Europol's activities.[26]

23. Article III-156 provides that:

"The Council may, on a proposal from the Commission, adopt European regulations or decisions laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Chapter by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament, as well as Member States' national parliaments, shall be informed of the content and results of the evaluation."

24. None of our witnesses had any objections of principle to this provision. JUSTICE, however, pointed to an ambiguity in the drafting which could be taken to imply that Member States were responsible for evaluating their own legislation and practice. In its view, the evaluation should be independent and should include "consultation with independent experts on international human rights and national legal systems [and] active input from national and European parliamentarians". It also considered that the Article should refer to the evaluation of "Union legislation" rather than "Union policies".[27]

25. We agree that the drafting should be tightened in these respects. We also consider that the reference in the draft Article to the involvement of national parliaments falls considerably short of the "participation" promised in Article III-155. We consider that 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. We ask for the relevant Article to be reworded in order to reflect this more active role for national parliaments, and to make it clear that the evaluation should be independent and should relate to Union legislation rather than simply to policies.

The "collapse" of the Third Pillar

26. At present, whereas measures relating to visas, asylum, immigration and other aspects of free movement of persons, which fall within the First Pillar, are adopted using "the Community method", the adoption of measures under the Third Pillar (Title VI of the Treaty on European Union) is essentially inter-governmental, involving few, if any, of the features of the Community method. Accordingly, the adoption of a Third Pillar measure is not dependent on the Commission making a proposal, the role of the European Parliament is only consultative, and the jurisdiction of the Court of Justice (ECJ) is limited. Although Framework Decisions may be adopted under Article 34(2)(b) EU for the purpose of "approximation of the laws and regulations of the Member States" and are binding as to the result to be achieved, whilst leaving to the national authorities the choice of form and method, they differ from Directives adopted under the EC Treaty in that any direct effect[28] is expressly excluded.

27. The report of Working Group X proposes radical changes, which have been reflected (and to some extent amplified) in the draft Articles. The Third Pillar would be brought within a "common general legal framework", and its distinctive features would largely disappear. The draft Articles refer to the adoption of "European laws" and "European framework laws" in the field of "freedom, security and justice". The proposed "ordinary legislative procedure" for such laws, if applied to this area, would result in measures being adopted on the basis of qualified majority voting (QMV) in the Council and with the European Parliament having the role as co-legislator it now enjoys under the co-decision procedure.[29] Since the Articles do not reproduce the provisions of Article 34(2)(b) EU, it appears to follow that "framework laws" might be capable of having direct effect in the same way as Directives adopted under the EC Treaty.

28. From one point of view, the shift to the Community method for Third Pillar proposals can be seen as a simplifying measure. The Working Group's report cites as "well-known adverse effects" of the pillar structure "uncertainty about legal bases; necessity of two instruments or separate international agreements for a series of initiatives addressing the same problem."[30] We are aware of widespread confusion, and indeed ignorance, about the difference between the pillars, and we recognise the attraction of removing one layer of complication.

29. For most of our witnesses, however, more fundamental issues overshadow the gain in simplicity. Some of these concern the yoking together of the concepts "freedom, security and justice". While Statewatch supports the use of the Community method for proposals within the scope of the current Third Pillar as being "clear, understandable and well-established",[31] it does not consider that crime and policing matters should be in the same title as immigration and asylum matters:

"This is because of our concern that in such a single framework, the 'security' aspects of immigration and asylum law will dominate over the other important aspects of these issues, such as protection for those needing it, equal treatment for migrant workers and their family members, and the social and economic aspects of migration." [32]

30. The proposed change, and especially the extension of QMV, is perceived by others as posing a serious threat to national legal systems, and, in particular, that of the UK. The Criminal Bar Association expressed caution about the potential implications of a "common legal framework", stating that "the extent and detail of the framework imposed on Member States and its interaction with national systems is a matter of considerable concern to us".[33] Mr Heathcoat-Amory believed that the proposals would result in the common law tradition having to be harmonised with continental traditions.[34]

31. Others consider that the preservation of national legal systems may be less important for the human rights of EU citizens generally than the establishment of more democratic European systems. Fair Trials Abroad told us:

"What has always concerned us about the third pillar is that the control of European legal space has been a recipe for a drift towards a police state. It is government controlled…We would welcome the collapse of the third pillar. It is essential if Europe is to be a democratic society."[35]

32. Professor Guild commented on behalf of JUSTICE that:

"Because we all know our national, regional or local procedures and we have a degree of confidence in them, we are very attached to them. How we proceed, if we are going to proceed, to a European level of criminal law, to weave together those procedural guarantees will be an extremely important issue and we would hope, from the side of JUSTICE, that the best aspects in terms of civil liberties and the protection of the individual from all of the European systems would be woven together to provide an acceptable standard which could be applied."[36]

33. We have tried to keep these differing viewpoints in mind while considering this matter. We recognise, with Professor Guild, that the possibility of differing standards applying across the EU could be seen as a fundamental problem. On the other hand, we acknowledge the difficulty of adopting standards which may distort the operation of a Member State's criminal justice system and thus lead to demands for further action to redress those distortions. As Professor Guild put it:

"When you pull the end of a piece of string, you do not always know where the other end will be and, having started down this route on criminal law, it seems to me that we are beginning to unravel parts of the process which are going to be much more complicated and difficult to resolve than perhaps was originally anticipated by those who advocated heading down this road in the first instance."[37]

34. We believe that any "common general legal 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 "collapse" of the Third Pillar would depend to a large extent on how far the use of QMV was extended and how far the role and powers of the ECJ were expanded to cover what are currently Third Pillar matters, and we examine both these aspects in detail below.

Procedures for adopting measures in the field of "freedom, security and justice"

Right of initiative

35. Whereas the existing Article 34(2) EU provides that measures may be proposed by the Commission or by any Member State, draft Article III-160 provides that measures may be proposed by the Commission or on the initiative of a quarter of the Member States. Mr Hain said he was happy with the proposed provision,[38] whilst Mr Heathcoat-Amory was in favour of the right of initiative being shared, as is presently provided for, but commented that there was an "inescapable greater right of initiative given to the Commission" and that the proposed change went "slightly in the wrong direction". Mr Heathcoat-Amory thought the right of initiative should be shared more generally and "should perhaps even extend as far as national parliaments deliberating collectively at Union level".[39] Statewatch regarded the shared right of initiative proposed by the Working Group as a "reasonable compromise",[40] but Professor Peers drew attention to the awkwardness of co-decision in cases where a group of Member States, rather than the Commission, was the author of a proposal.[41]

36. We consider that the proposals for a shared right of initiative represent a reasonable compromise between, on the one hand, a Commission monopoly of the right to make proposals and, on the other, the risk of a range of inconsistent proposals being made by individual Member States.

Co-decision and qualified majority voting (QMV)

37. Opinions diverged more markedly on the question of adopting measures by co-decision and QMV. Mr Hain shared the concern that a move to QMV would diminish the role of national parliaments in matters relating to justice and home affairs and explained that this was why he was seeking to have QMV apply to framework laws only, "so that national laws would still be a matter for national parliaments and be implemented by national parliaments".[42] The Government was "quite content to see qualified majority voting extended in areas where it is in our national interests, such as co-operation over asylum policy, co-operation in tackling international crime, the threat of terrorism and so on", but he emphasised that, as far as the Government was concerned, unanimity would have to be retained in matters of policing and "the workings of our judicial system".[43] Mr Heathcoat-Amory pointed out that "European laws" adopted by QMV would not require any enacting legislation by national parliaments.[44]

38. The non-governmental organisations which provided evidence drew attention to issues of legitimacy raised by a move to QMV. Whether a measure could be legitimately adopted under QMV and co-decision depended on its scope and importance. Professor Guild (JUSTICE) observed that the arguments in favour of QMV or unanimity were "highly political". On the one hand it was said that QMV was necessary in order to pass legislation efficiently after enlargement. On the other, it was said that unanimity was necessary in order to "control what was going on". Professor Guild also remarked:

"Our concerns are not concerns about efficiency but are exclusively on legitimacy and it seems to us that the mechanism which is chosen as to how to adopt legislation is one which must reflect the rights of the individual, the defences which can be put forward and the position of fundamental rights. Therefore, our position is one where we would say that unanimity or QMV are matters which depend on the subject matter and are political choices. What we want to see inserted are the rights for the individual."[45]

39. Statewatch, while supporting the "collapse" of the Third Pillar, considered that decision-making in this area should be divided into three categories. QMV and co-decision would apply where an issue "does not affect fundamental issues of sovereignty". Unanimity with the assent of the European Parliament would apply where the measure "affects basic aspects of the EU legal order or is particularly important for Member States". Finally, unanimity with the assent of the European Parliament and ratification by national parliaments would apply "where the measure affects the basic core of national sovereignty or the balance of power between Member States".[46]

40. Statewatch illustrated these categories by suggesting that the first (QMV and co-decision) could be used for such matters as funding programmes concerning policing and criminal law, the organisation and management of Europol (but not the extent of its powers), or the harmonisation of criminal law in areas (such as the environment) where the Council already votes by qualified majority. The second category (unanimity with EP assent) should be used when harmonising national criminal law in other areas, harmonising criminal procedure or adopting rules relating to the cross-border powers of national police forces. The final category (unanimity, with EP assent and national ratification) would apply to proposals such as giving coercive powers to Europol or Eurojust, or the creation of any new body, such as the European Public Prosecutor. Statewatch concluded, on the basis of the above analysis, that "in many respects the Working Group's proposals would permit EU measures to be adopted by qualified majority vote and co-decision in too many cases".[47]

41. We believe that the proposal that all measures in the field of "freedom, security and justice" should be adopted by a legislative procedure involving QMV and co-decision gives the desire for simplification precedence over securing democratic legitimacy, as well as effecting a substantial transfer of power from national parliaments to the European Parliament. We note with concern that national parliaments in the Member States forming a minority in a vote will be effectively marginalised, and this in the sensitive area of criminal law and the coercive power of the State. Any subsequent legislative activity of national parliaments of Member States forming the minority 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.

42. We agree with Statewatch and JUSTICE that the choice of legislative procedure should depend on the subject-matter of the proposal, and that QMV and co-decision should be limited to those cases which do not affect fundamental issues of sovereignty. In our view, 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.

18 CONV 426/02, pp 22-3. Back

19 Q 17. Back

20 Q 144. Back

21 Q 116 and Q 17. Back

22 Q 19. Back

23 Q 115. Back

24 Thirty-third Report, 2001-02, HC 152-xxxiii, para 113. Back

25 Twenty-fourth Report, 2002-03, The Convention on the future of Europe and the role of national parliaments, HC 63-xxiv, paras 29-34. Back

26 See Twenty-fourth Report from the European Scrutiny Committee, 2001-02, HC 152-xxiv, para 8; HC 152-xxxiii, 2001-02, para 142; 5^th Report from the Select Committee on the European Union, 2002-03, Europol's role in fighting crime, HL Paper 43, para 40. Back

27 Appendix 3, para 4. Back

28 'Direct effect' is a doctrine of Community law developed by the ECJ.In essence, it provides that a Directive may have an effect in the national legal system even in the absence of any domestic implementing legislation. Back

29 See Articles I-33 and III-298. Back