Conclusion
83. The "collapse" of the Third Pillar
is a much greater change than is suggested by describing it as
"simplification" or as the devising of a "common
general legal framework". It would fundamentally alter the
balance introduced by the Maastricht Treaty whereby criminal law
and procedure is dealt with by the European Union, if at all,
through intergovernmental agreement rather than Community legislation.
The report of Working Group X refers to the "well-known adverse
effects" caused by the co-existence of the intergovernmental
and Community methods, including the different legal bases for
initiatives addressing the same problem,[84]
but these are no more than technical complexities which arise
by reason of the underlying political realities. To simplify these
involves making a basic choice as to whether the subject-matter
of the Third Pillar is appropriate for the Community method.
84. The intergovernmental method has been criticised
as government-controlled, and it is undoubtedly true that the
negotiation of a convention or framework decision leaves the national
parliament with far less scope to review, or reject, the principles
of such a measure than it has when changes to the criminal law
are proposed in a Bill. However, the Community method of qualified
majority voting with co-decision by the European Parliament in
the area of criminal justice will not address the concerns over
legitimacy, but will aggravate them. 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 (as
is shown by the continued existence of separate systems in England
and Wales, Scotland and Northern Ireland). 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. We do not believe that the European Parliament
is 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. In our
view, harmonisation of criminal law and procedure should proceed
by agreement of all Member States or it should not proceed at
all.
84 See para 28 above. Back
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