APPENDICES TO THE MINUTES OF EVIDENCE
APPENDIX 1
Memorandum submitted by Statewatch
INTRODUCTION
1. Statewatch welcomes the committee's decision
to conduct an enquiry into the final report of the Convention
working group on freedom, security and justice (which we will
refer to as Justice and Home Affairs, or JHA), as well as the
opportunity to comment on that report. These are important and
controversial subjects both at EU and national level, of great
interest and concern to the general public, and worthy of a detailed
parliamentary examination.
2. We hope that the committee will continue
to follow Convention developments on this subject, in particular
the draft Articles on JHA matters due to be circulated by the
Convention Presidium on 17 March. We may submit some further comments
following the appearance of these draft Articles.
3. It is unfortunate that there seems to
be no detailed policy statement by the UK government on this issue.
There does not seem to have been extensive UK involvement in the
working group, judging from the working papers submitted to the
working group. A brief UK/Finnish paper was submitted, but it
is rather vague. Statements by the Foreign Secretary and Prime
Minister are also rather vague.
4. As a final preliminary point, we would
like to stress the importance of distinguishing between the two
distinct areas of JHA. Immigration, asylum, border controls and
civil judicial cooperation have been governed by the "Community
method" since the Treaty of Amsterdam entered into force
nearly four years ago, albeit with certain divergences from the
Community method that are due to change anyway after the end of
a five-year transition period just over a year from now, on 1
May 2004. At that point the Commission will have a full monopoly
of initiative, and certain legislation concerning visas and administrative
cooperation will have to be adopted by a qualified majority vote
in the Council. The Council is also obliged at that time to change
the voting rules on some or all other areas and adapt the highly
restrictive rules relating to the Court of Justice. Certain voting
rules changed as a result of the Treaty of Nice as regards asylum
and civil law (except for family law). Also, the UK can opt in
to of any of these measures during discussion of proposals or
after their adoption. Conversely if we do not exercise the power
to opt in we have opted out of the texts. All of these measures
are EC acts (regulations, directives, decisions) governed by the
rules of EC law (direct effect and supremacy).
5. In contrast, the remaining "third
pillar", concerning police and criminal law, has a different,
essentially intergovernmental, regime. The acts, which are different
in form from EC acts, have the legal effect of public international
law; the Commission shares the initiative with the Member States
indefinitely; there is a different regime for the Court of Justice,
under which the UK has opted out of the prospect for national
courts to send references; all voting in the Council except on
implementing measures remains unanimous indefinitely; and the
European Parliament has only the power of consultation indefinitely
(the Council can also require it to vote within three months).
There is also a different system for agreements between the EU
and third states (Articles 24 and 38 EU) as compared to agreements
between the EC and third states (Article 300 EC). From a UK constitutional
point of view, the third pillar is not governed by the European
Communities Act, so the provisions of that Act on the effect of
EC law, the precedential effect of the Court of Justice's judgments,
and the delegated legislative powers of the executive do not apply.
6. It is unfortunate that many figures in
the press and even the government appear to be unaware of the
considerable differences in the two regimes. The result is that
it is very unclear what the government means by statements about,
for example, extending the Community method as regards "justice
and home affairs".
7. Our comments on the working group report
are based on comments submitted to the Convention by Statewatch
and three other NGOs (ILPA, ECRE and the Meijers Committee) regarding
JHA issues and concerns about democracy, openness and accountability
of the EU in general. The comments follow the structure of the
working group's report. It should be emphasised at the outset
that we only support any changes which would enhance the EU's
powers in this area on condition of greater democracy, openness
and accountability of the EU, including greater protection for
human rights within the EU legal order. There should be a greater
role for national parliaments within the EU system, scrutiny of
implementing and operational measures of the EU and its Member
States in the EU framework, enhanced powers for the EU ombudsman,
greater access to EU information and documents (applying to all
EU institutions, bodies and agencies), greater judicial and political
accountability of EU entities such as Europol, Eurojust and the
meetings of police chiefs and further open meetings of the Council
(see our submissions for further details). To ensure human rights
protection, the next Treaty should provide for the accession of
the European Union to the European Convention on Human Rights
(and other international human rights treaties) and provide for
the EU Charter of Rights to have binding legal force. This is
necessary to ensure that the EU does not violate human rights
regarding immigration, asylum and criminal law in particular.
Those two steps should only have effect as regards Member States
when they are implementing or derogating from EU law, not when
they exercise powers on a purely national basis, and they should
not in themselves extend the competence of the EU.
THE WORKING
GROUP REPORT
8. First of all, we are strongly opposed
to the idea that the two areas of justice and home affairs law
should fall within a single legal framework. 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. There
are certain links between the two areas, but immigration and asylum
also has close links with the EC's internal market and social
policies, while criminal and policing law is also relevant to
EC law on (inter alia) the EC budget, the environment, the free
movement of private security firms, race discrimination, intellectual
property, fisheries and health and safety. Therefore the provisions
on immigration, asylum law and civil law should form part of the
Treaty rules on the internal market, as suggested in the Presidium's
original draft outline of a new Treaty from last October.
9. As for the idea of future JHA programmes
being outlined by the European Council, this is dependent on greater
accountability of the European Council itself and greater participation
of civil society and (as the Working Group suggests) national
parliaments and the European Parliament in drawing up these programmes.
This was manifestly not the case for the Tampere programme. It
should also not be forgotten that certain aspects of the Tampere
programme (notably the equal treatment of long-term resident third-country
nationals) have not really been implemented in practice.
10. The idea of separating "legislative"
and "operational" acts is not objectionable per se;
but it is very important to ensure that there is effective accountability
in both cases (see discussion below).
11. We welcome the idea of qualified majority
voting and co-decision on issues relating to immigration, visas
and asylum, on condition that there is greater protection for
human rights within the EU legal system as set out in paragraph
7 above. The change of voting rules will ensure greater participation
of the European Parliament and will prevent a handful of Member
States from insisting that immigration and asylum law be harmonised
at the lowest common denominator.
12. As regards the scope of the EU's power
on this issue, it is already clear from the wording of Article
63(2)(a) that the EC has power over complementary (or subsidiary)
protection, and there is nothing to rule out EC powers over access
to employment as regards any category of migrant. It might be
useful to clarify these points for the avoidance of doubt. However,
there is no need for EU powers to address "integration"
of migrants going beyond the power to define the status and rights
of long-term residents of the EU, ensuring their equal treatment
and security of residence. Member States have different views
on the extent of cultural or other assimilation, if any, that
migrants should undergo and there is no point trying to harmonise
such basic cultural differences. As for border controls, any move
to develop a European border guard would entail a transfer of
coercive powers away from sovereign states, and so should only
be approved by a unanimous vote in Council, the assent of the
European Parliament and ratification by national parliaments.
13. Next, the working group recommends a
shift to the "Community method" as regards the acts
to be adopted within the scope of the current "third pillar".
We support this idea because the Community method is clear, understandable
and well-established. This would also ensure that subjects could
be tackled with a single piece of legislation rather than different
measures in the different pillars and the direct effect of legislation
in this area would ensure that suspects, defendants and victims
could rely on rules which were developed for their protection.
It should be kept in mind that the Court of Justice has repeatedly
ruled that the "direct effect" of directives cannot
lead to increased criminal liability until a Member State has
transposed a directive into national law and provided for such
liability. While it would be preferable to give the Commission
the sole right of initiative to ensure coherent policy-making,
the idea of a joint right of initiative with a group of Member
States as suggested by the working group is a reasonable compromise.
14. In our joint submissions [not printed
here], we argued that decision-making in this area should be divided
into three categories: qualified majority vote with co-decision
where an issue does not affect fundamental issues of sovereignty;
unanimous vote with assent of the EP where the measure affects
basic aspects of the EU legal order or is particularly important
for Member States; or unanimous voting, assent of the EP and ratification
by national parliaments where the measure affects the basic core
of national sovereignty or the balance of power between Member
States. So, for example, the first category of voting should be
used for such matters as funding programmes concerning policing
and criminal law, the organisation and management of Europol (as
distinct from its powers) or the harmonisation of criminal law
in areas (such as the environment) where the Council already votes
by a qualified majority. The second category should be used to
harmonise national criminal law in other areas, to harmonise national
criminal procedure in any area, or where rules were adopted regarding
cross-border powers of national police forces. The final category
would apply where coercive powers were given to Europol or Eurojust
or where a new body with such powers (such as the European Public
Prosecutor) was created. It follows that in many respects the
working group's proposals would permit EU measures to be adopted
by a qualified majority vote and co-decision in too many cases.
15. As for "operational" powers,
it is not clear from the working group report how the EU would
be accountable to the public, national parliaments and the EP,
what judicial control would apply and what forms of acts or decision-making
procedure will be used. These are vital issues which were not
adequately addressed by the working group.
16. If the Treaty provisions regarding Europol
and Eurojust were to be amended, they should merely aim at setting
out the status quo regarding these organisations, with a clear
provision to the effect that any future coercive powers for these
organisations will depend on national parliamentary assent. The
working group has not made out a case for giving Eurojust the
power to initiate prosecutions, given the absence of a system
of accountability provided by the framework of a national criminal
justice system.
17. Equally neither the working group nor
the advocates of a European Public Prosecutor have come anywhere
close to making out the case for such a body to be created. Given
the powers of Europol and Eurojust, the changes in decision-making
and instruments agreed in the Treaty of Amsterdam and contemplated
for the next Treaty and the development of measures such as the
European Arrest Warrant, it is difficult to see the point of creating
such a body in light of the enhanced possibility of coordinating
national investigations and arranging national prosecutions concerning
fraud against the EU budget or other matters. Moreover, as argued
in our earlier joint submissions, the idea of a "hybrid"
system (with the EPP prosecuting a person in a national court)
is incoherent and risks unfairness to the suspect. If there is
to be an EU prosecutor there should be a proper legal framework
including detailed rules on substantive criminal law, criminal
procedure and a separate criminal court (like the International
Criminal Court).
18. As regards the Court of Justice, we
agree with the working group's conclusion that the normal rules
on the Court's jurisdiction should apply, given the need for coherent
rules on jurisdiction and the importance of protection of human
rights in JHA matters. There is no convincing reason for allowing
an opt-out from jurisdiction of the Court as regards preliminary
rulings. It should be kept in mind that the UK courts will in
any event be subject to the prospect that a court in another Member
State may send a reference to the Court of Justice on an issue
in the midst of co-operation with a UK court, and that judgments
of the Court of Justice on criminal matters are likely to be considered
as persuasive, even if not binding, on the UK courts. As for permitting
only final courts to send questions to the Court of Justice (currently
the case as regards immigration, asylum and civil law) this may
delay the final resolution of cases and detract from the prospects
of uniform interpretation of the EC rules and thus cause the further
expense of appeals brought purely to secure the prospect of a
reference to the Court of Justice. This is not desirable for taxpayers,
migrants, the national judicial system or national administrations.
17 March 2003
|
