The effectiveness of the 'emergency
brake' procedure
110. The Foreign Secretary stated the Government's
view that 'the emergency brake is an effective mechanism to ensure
the UK can participate fully in initiatives on criminal law and
social security, whilst retaining flexibility not to be involved
if the Government believes an initiative affects fundamental aspects
of its system'. This was because pulling the emergency brake
resulted in the matter being referred to the European Council,
which, in accordance with Article I-21(4), would act by unanimity.
He added that only the Member State concerned could judge whether
a proposal would affect fundamental aspects of social security
or criminal justice systems and that 'this judgment cannot be
subject to any wider authorisation'. He concluded:
'The Government considers that as far as social security
is concerned the breadth of the test for pulling the brake means
that there is no practical difference between the new provisions
and unanimity. Functionally, the same is true for criminal law.
The practical difference [in] the latter is that, as far as this
Government is concerned, there may well be some limited areas
of criminal law on which it would make sense for there to be minimum
rules. The advantage of QMV is that it becomes possible to agree
reasonably expeditiously on legislation where no Member State
including the UK has a problem of principle with the EU so acting,
whilst the emergency brake makes it easy to ensure that the EU
does not stray into more controversial areas, and protects our
national interests.'[164]
111. The Government's commentary on the Constitutional
Treaty states that Article III-136(2) on social security 'in effect
provides a veto'. [165]
112. Some of our witnesses had doubts about the effectiveness
of the emergency brake mechanism, and about whether it would be
much used, mainly because they believed there would be a greater
political cost from pulling the brake than from relying on a requirement
for unanimity. Professor George Bermann speculated that Member
States 'will only be able to apply the emergency brake a very
limited number of times and the device … may fall out of
use'.[166] Mr Chalmers
believed that the procedure would be used 'in the context of a
very small number of Member States pleading a case against a backdrop
where they know other Member States can go forward without them
in any case via enhanced cooperation'. He also commented that
it assumed that the European Council was a more effective decision-taker
than the Council of Ministers, whereas,
'Historically, the European Council has been strong
at agenda-setting and less so at breaking of logjams. It would
be operating in a position where negotiating positions are already
strongly defined, and is limited by a couple of features. Member
States may be wary about undermining their bargaining position
on other matters important to them by being too adamant on something
likely to be particular to that Member State and not easily understood
by other Member States. Local publics are also likely to be suspicious
of grand deals with criminal procedure negotiated away for some
other unrelated matter, and this perception may complicate matters.'[167]
113. Professor Denza noted that the procedure 'would
enable any Member State to block any unacceptable measure in the
field of criminal justice'.[168]
However, both she and Professor Edward considered that the emergency
brake procedure was not as effective as the present unanimity
rule in protecting vital national interests, even if in the sense
of 'actually getting things done and providing a political mechanism
for resolving the problem' the procedure was 'probably not bad'.[169]
Professor Edward noted that the brake was 'not absolute', and
that, at the point when the matter was raised in the European
Council, 'politics would overcome law' and it would be important
to negotiate a solution; 'to say it operates as a total brake
is clearly not the case'.[170]
114. Professor Denza pointed to the difficulty of
using the mechanism for resolving objections of a technical nature:
"If the objection is a rather technical one,
then unanimity is better because that simply forces, at the technical
level, people really understanding the issues to bang on until
people really understand your problem and try to find a compromise
around it. The difficulty about escalating it to political level
is that in the nature of things those operating in the stratosphere
do not really understand the minutiae and the whole background
of the criminal justice system against which the problem has arisen.
You may get some sort of a deal and then the technocrats are simply
instructed that at Council they have to sort it out.'[171]
She noted that the European Council would also have
the option of sending the text back to the Commission.
115. Martin Howe QC similarly observed that the emergency
brake provisions reflected 'acceptance of the general rule that
measures in these importance and sensitive areas will be taken
by qualified majority vote', and that the procedure would only
be invoked in 'exceptional circumstances deemed to be of sufficient
political importance', with the consequence that 'undesirable
measures of significant importance but not of such great importance
as to justify invocation of the "emergency brake" procedure
will, it is to expected, be passed through'.[172]
116. Mr Howe also raised the possibility that the
ECJ might impose a requirement of reasonableness or proportionality
on a Member State's assessment of whether a proposal affected
fundamental aspects of its criminal justice system. Mr Howe considered
that if the ECJ were to take such a view, or even if there were
to be a perceived risk that it might do so, this would further
inhibit the use of the emergency brake procedure.[173]
JUSTICE also made the point that 'if the emergency brake provisions
are to be justiciable in cases brought before the ECJ, this may,
in the hands of an activist court, diminish the value of the emergency
brake'.[174] The Foreign
Secretary's view on this point was that 'The text says that the
brake may be pulled "if a Member State considers" that
these tests are met, and this judgment cannot be subject to any
wider authorisation'.[175]
117. Other witnesses were less doubtful about the
emergency brake. Statewatch considered that 'once the brake is
"pulled" by a Member State, there is no way that the
legislative machinery can begin moving again until that Member
State can be assured within the European Council that its objections
can be met'.[176]
Professor de Búrca stated that although the emergency brake
was unlikely to be used often, because of its complexity, 'the
very existence of the possibility of the procedure may well have
something of the effect that the "shadow of the Luxembourg
veto" had for years, i.e. inducing caution and compromise
into the operation of the "ordinary legislative procedure"
in these fields, so as to avoid the risk of any Member State pulling
the brake'.[177]
118. Professor Edward drew our attention to the special
position of Scotland in relation to the emergency brake procedure,
pointing out that the United Kingdom appeared to be unique in
having within a single Member State the three clearly different
and separate criminal judicial systems of England and Wales, Scotland
and Northern Ireland. If, for example, a proposal seriously interfered
with the Scottish system of prosecution, 'there is at the moment
no formal mechanism for the Scottish Parliament to do anything
about it'.[178] He
gave as an example the '110-day rule', whereby, in principle,
the maximum period during which a person may be held in custody
in Scotland without going to trial is 110 days, and observed that
'If legislation were put forward which ignored that—and
it is quite possible that it would be—then it creates a
serious problem for the administration of justice in Scotland'.[179]
He referred to efforts being made to make the Scottish Executive
and MSPs aware of the need to find out early what was happening
and to ensure that their point of view was known.[180]
119. We accept that the 'emergency brake' mechanism
will provide clear protection to a Member State which believes
a measure affects fundamental aspects of its criminal
justice or social security systems. But it should be noted
that it is, of course, a quite different procedure from straightforward
unanimity and will mean that political considerations will come
into play at the level of the European Council.
120. We believe that special care will be needed
by Ministers to ensure that the special features of the different
legal systems in the United Kingdom are fully taken into account
when considering use of the emergency brake procedure. If the
Treaty comes into force, we will expect Ministers to explain fully
in their Explanatory Memoranda and other evidence to us the impact
of EU proposals on such features and the consideration the Government
has given to using the emergency brake to protect them.
161 
