List of conclusions and recommendations
Working Group X and its report
1. We are concerned
about the way the Working Group made such far-reaching proposals
on the basis of such a narrow range of evidence. (Paragraph 10)
Operational co-operation
2. The accountability
of the proposed operational committee must be clarified. (Paragraph
14)
Role of national parliaments
3. 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. (Paragraph 18)
4. We urge the Government
to press for a "red card" mechanism for proposals in
the field of "freedom, security and justice", preventing
a proposal from proceeding if a certain proportion of national
parliaments or their chambers object on subsidiarity grounds.
(Paragraph 21)
5. Scrutiny of Europol's
activities by the European Parliament and national parliaments
should 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. (Paragraph 22)
6. National parliaments
should be able to scrutinise the specification for the evaluation
exercise for EU policies in the field of "freedom, security
and justice", as well as the content and the results, and
should be consulted as part of the evaluation process. The relevant
Article should 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. (Paragraph 25)
The "collapse" of the Third Pillar
7. 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. (Paragraph 34)
Procedures for adopting measures in the field of
"freedom, security and justice"
8. 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. (Paragraph 36)
9. The proposal that
all measures in the field of "freedom, security and justice"
should be adopted by a legislative procedure involving qualified
majority voting (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. (Paragraph 41)
10. 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. 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. (Paragraph 42)
Harmonisation of criminal procedure
11. 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. (Paragraph 49)
12. 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.
Accordingly, we do not believe that the subject-matter of criminal
procedure is appropriate for QMV or the co-decision procedure.
In particular, we do not accept that rules on the admissibility
of evidence can properly be adopted in this way, since such rules
are so closely connected with the different modes of trial in
the Member States. (Paragraph 50)
Harmonisation of substantive criminal law
13. The scope of criminal
liability within a Member State is primarily a matter for the
national parliament. (Paragraph 58)
14. Harmonisation
of criminal law within the European Union should proceed by agreement
of all Member States, or it should not proceed at all. (Paragraph
58)
Jurisdiction of the European Court of Justice (ECJ)
over criminal matters
15. We are not persuaded
that the jurisdiction of the ECJ should 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 believe that an exclusion along the lines of the
existing Article 35(5)EU should be maintained. (Paragraph 70)
16. 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,
we do not consider it appropriate for Member States to be required
to permit lower courts to refer questions for preliminary rulings
in criminal matters. (Paragraph 71)
European Public Prosecutor
17. We have repeatedly
opposed the proposal to create a European Public Prosecutor, considering
it impractical and likely to remove the prosecution function from
democratic accountability. In the light of the evidence given
to us about the risk of "forum-shopping", with the Prosecutor
selecting the forum where he is most likely to secure a conviction,
we note that the proposal also has the potential for creating
an engine of oppression. We entirely support the Government's
opposition to this proposal and we look forward to the deletion
of this provision from the draft Treaty. (Paragraphs 81 and 82)
Conclusion
18. 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. (Paragraph 84)
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