Select Committee on European Scrutiny Fourteenth Report


Criminal justice

121. In our Report in 2003 on the Convention's proposals on criminal justice, we concluded that the 'collapse' of the Third Pillar would fundamentally alter the balance introduced by the Maastricht Treaty whereby criminal law and procedure was dealt with by the European Union, if at all, through intergovernmental agreement rather than Community legislation. We considered that, in the field of criminal justice, the 'Community method' of legislating by QMV and co-decision with the European Parliament would not address concerns over legitimacy, but would instead aggravate them.[181]

122. In our view, criminal justice was a matter which identified the State (or, in the case of the UK, with its separate legal systems in England and Wales, Scotland and Northern Ireland, also the identity of parts of the State), requiring a degree of ownership by the public if it was to function properly. We considered that the only forum in which such ownership could be established was the national parliament. We did not believe that the European Parliament was sufficiently close to the public to secure democratic legitimacy in this sensitive area and we did not consider that a substantial increase in its powers at the expense of the national parliaments could be justified. We also did not believe that democratic legitimacy was secured by a system of voting which allowed Member States to be outvoted and thereby obliged to make changes in their criminal law and procedure with which they did not agree. Our view was that the harmonisation of criminal law and procedure should proceed by agreement of all Member States or it should not proceed at all.[182]

123. The Government appeared to share these views, at least in part, in the 2003 White Paper, where it said that it believed that 'qualified majority voting would not be the most appropriate way of proceeding where significant harmonisation of criminal procedural law was concerned'.[183] However, in the 2004 White Paper, probably reflecting wider political developments and changing circumstances, the Government stated that the introduction of QMV as the 'norm for JHA[184] issues' was 'a welcome consequence of abolishing the pillar structure'.[185]

124. As far as the scope of any harmonisation of criminal procedure was concerned, we believed it should be limited to achieving such minimum standards as were necessary to secure mutual recognition of judgments and decisions in particular cases, and should supplement the existing procedural guarantees provided by the European Convention on Human Rights. In relation to substantive criminal law, we welcomed the limitations which had been included in the Convention's text, providing for minimum rules only for the definition of certain serious offences with cross-border implications or where there was some special need to prosecute them on a common basis.[186]

The UK's 'opt-in'

125. At the time of our Report in 2003, the extent to which the existing 'opt-in' arrangements would be preserved was not clear. The 2004 White Paper records that the Constitutional Treaty carries over the UK's opt-in protocol on immigration, asylum and civil justice issues.[187] The provisions of Protocol No.19 to the Constitutional Treaty[188] reproduce the effect of the existing Protocol on the position of the United Kingdom and Ireland, so that the UK will continue to enjoy the right to opt in to measures under Articles III-265 to III-268 (border checks, asylum and immigration), Article III-269 (judicial cooperation in civil matters) and Article III-260 (evaluation of policies in the area of freedom, security and justice). These matters are currently covered by Title IV of the EC Treaty and in most cases are subject to QMV and co-decision, but the UK is not bound by them unless it has exercised its right to opt in. Since 1999 the Government has opted in to 36 such measures, covering visas, immigration and asylum law.[189] Although QMV and co-decision will become the 'norm for JHA issues', there is no equivalent opt-in provision either currently or under the Constitutional Treaty in relation to criminal matters, and the emergency brake will have to be relied on instead if the UK wishes not to be bound by such measures.

Limits on the scope of EU action

126. The provisions of Article III-270 on criminal procedure and Article III-271 on substantive criminal law take account to some extent of our concerns regarding scope in that there is some form of limitation to cross-border cases and situations. Professor Denza observed that 'the implications of integrating criminal justice into the Community method, involving a stronger form of primacy, potential direct effect and loss of national autonomy, are substantial', but that, on the other hand, Article III-270 was 'limited to what is necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension'. Similarly, the power under Article III-271 to define criminal offences and sanctions is limited to specified crimes and areas of particularly serious cross-border crime.[190]

127. In our Report in 2004 on The EU's Justice and Home Affairs work programme for the next five years, we drew attention to the danger that measures which are ostensibly concerned with mutual recognition will have the effect of creating uniform rules which will then apply to all cases, whether they have any cross-border implications or not. We also observed that 'Commission proposals on the "area of freedom, security and justice" have appeared to treat this "area" as synonymous with a unitary State, with only one legal system'.[191]

128. The references in Articles III-270 and 271 to the need for a 'cross-border dimension' were seen by the Foreign Secretary as a 'valuable statement of the intention of the European Union to focus on cross-border issues'. He also welcomed the fact that 'approximation of criminal procedure will be limited to where it facilitates judicial cooperation in relation to cross-border crime which has significant potential benefits for the tackling of serious organized crime'.[192]

129. The scope of Article III-271(1) appears to be limited also by reference to the type of offence concerned. In addition to being a 'particularly serious crime with a cross-border dimension', the crime must fall within the areas of 'terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organized crime'. Article III-271(1) provides a power to extend these categories of crime, but (it seems) the crime must still be one which is 'particularly serious ... with a cross-border dimension'. Action under that provision also requires unanimity and the consent of the European Parliament.

130. The Foreign Secretary confirmed that the list of crimes in Article III-271(1) was exhaustive, and compared it with the matters currently referred to in Article 31(e) EU ('minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organized crime, terrorism and illicit drug trafficking), which he said was 'not an exhaustive list'.[193] (Indeed, Article 29 EU sets out an objective which includes common action in police and judicial cooperation in criminal matters and 'preventing and combating racism and xenophobia', which objective is to be achieved by 'preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking, and illicit arms trafficking, corruption and fraud'; the means by which the objective is to be achieved include harmonisation measures under Article 31(e) EU.) The Foreign Secretary agreed with us that the scope for action under Article III-271(1) was more limited than that which exists under the EU Treaty, and confirmed that 'racism and xenophobia is not an area of serious cross-border crime identified in the Treaty as falling within the EU's competence to legislate on minimum rules'.[194]

131. In assessing the scope of the powers to harmonise substantive criminal law under the Constitutional Treaty, regard must also be had to Article III-271(2), which provides for the making of European framework laws 'If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures'. Such framework laws are to be adopted by the 'same procedure as was followed for the adoption of the harmonisation measures in question'. Article III-271(2) therefore appears to be a more open-ended basis for Union activity than is provided by Article III-271(1).

132. Since there are no 'opt-in' arrangements under these provisions, a Member State faced with being out-voted under QMV will need to resort to the emergency brake provisions. The Foreign Secretary told us that:

'HMG would strongly oppose any draft European framework law (although such a proposal would be very unlikely in our view) establishing minimum rules on criminal procedure, that would threaten trial by jury or habeas corpus, particularly given that the rules are required to take into account the different legal traditions and systems of the Member States. In any case the Government believes that trial by jury and habeas corpus are fundamental aspects of our criminal justice system. It would expect to invoke the emergency brake mechanism if these areas were threatened.'[195]

The views of witnesses

133. Our other witnesses were generally cautious in relation to the criminal justice provisions. Professor Edward explained that he had been 'uneasy' about the earlier drafts of this section of the Constitutional Treaty and that his experience of cases under the Brussels Convention[196] had led him to be 'wary of automatic mutual recognition of judgments in criminal matters'. He noted that what is regarded as procedurally acceptable in one country may be unacceptable in another, and referred to the website of Fair Trials Abroad for an indication of what might be involved. However, he accepted that 'the state of the world makes closer judicial cooperation in civil and criminal matters essential', and thought that the Treaty seemed 'to go as far as one could reasonably expect in providing emergency brakes', provided it was read together with the provisions of the Charter on the right to a fair trial and the accompanying Explanations.[197]

134. JUSTICE supported the adoption of European framework laws on criminal procedure by QMV under Article III-270, pointing out that minimum standards would 'reduce the likelihood of double standards being applied between Member States' and would diminish the chances of 'forum-shopping' by prosecuting authorities in cross-border cases. However, JUSTICE also observed that 'where coercive actions by a State are envisaged QMV must be tempered to ensure legitimacy through full democratic accountability'. JUSTICE also noted that framework decisions currently do not have direct effect and need to be implemented in the Member States by national parliaments, and commented that providing for the adoption of such measures by delegated legislation 'would be a thoroughly unacceptable limitation of parliamentary accountability in such a fundamental and sensitive area of policy'.[198]

135. JUSTICE also believed that the approximation of substantive criminal offences and sanctions under Article III-271 would help to ensure that serious cross-border crime is addressed in all Member States and attracts sufficient penalties and would 'consolidate the mutual recognition basis of EU judicial co-operation in criminal matters by ensuring greater consistency' between offences. It regarded this as 'particularly important where the double criminality requirement is abolished and application of the mutual recognition principle gives effect to the criminal laws of one Member State in all others'.[199]

136. The 'Vote No' campaign considered that the underlying argument for adopting measures on minimum sentences for criminal offences was weak, and that the argument that criminals would 'shop around' in order to commit crimes where the sentence was shorter was 'not credible'. It also argued that mutual recognition should not be seen as an alternative to harmonisation and pointed out that in other areas of EU policy, such as the single market, mutual recognition had led to pressure for harmonisation. This was illustrated by reference to the European Commission's assessment of the Tampere programme of justice and home affairs measures, in which the Commission stated that 'it will be necessary to avoid a situation where in each Member State there are two separate legal regimes, one relating to disputes with a cross-border implication and the other to purely internal cases'.[200]

The proposed European Public Prosecutor (EPP)

137. Those of our witnesses who commented on the matter were critical of the provisions of Article III-274 on the European Public Prosecutor's Office, which provides that such an Office may be established by unanimity. JUSTICE was concerned about 'the possibility of "forum shopping" between Member States in order to take advantage of varying standards in [the] burden of proof, mode of trial, sentencing and admissibility of evidence across the EU'. JUSTICE also considered that specific rules of procedure and judicial review applicable only to the EPP 'would not only be unworkable but could also entail a reduction in existing procedural safeguards', and maintained that 'the need for an EPP has not yet been sufficiently demonstrated'.[201]

138. Statewatch commented that, given the other measures adopted or under consideration, and the absence of any evidence that there is a fundamental problem in this area, 'there is no remotely convincing case for the establishment of a European Public Prosecutor'. It commented that 'Ideally, Article III-274 should ... not have appeared in the Constitution at all' and that we should press the Government to 'clarify that it will seek either to veto the establishment of the Prosecutor or not to participate in the legislation establishing it, leaving those Member States who believe that there is a need for the Prosecutor to go ahead by themselves'.[202] The 'Vote No' campaign said it was surprised that the Government had allowed the provision for an EPP to be included 'as part of the overall deal on the Constitution'.[203]

Conclusion on the criminal justice provisions

139. We welcome the requirement for there to be a cross-border dimension before EU action is possible, and the limits on the scope for action in relation to substantive criminal law. In these respects the Treaty's provisions would be better than the existing situation. We also accept that a number of safeguards have been included in the Treaty. We have reservations about the voting arrangements for the adoption of criminal justice measures under the Treaty.  Nevertheless, we accept that the emergency brake procedure can provide an effective mechanism to protect Member States which are initially outvoted.

140. We continue to have concerns about the establishment of a European Public Prosecutor, but we note that it can be established only by a unanimous decision.


181   HC 63-xxvi (2002-03), paras 83-4. Back

182   Ibid., para 84. Back

183   Cm 5934, para 83. See also First Special Report from the European Scrutiny Committee (2002-03), The Convention's proposals on criminal justice: Government Observations on the Committee's Report, HC 1118, pp. 5-6. Back

184   Justice and Home Affairs. Back

185   Cm 6309, para 67. Back

186   HC 63-xxvi (2002-03), paras 49, 58. Back

187   Cm 6309, para 70. Back

188   Cm 6429, pp. 398-401. Back

189   HC Deb, 7 March 2005, col. 1596W. Back

190   Ev 16. Back

191   HC 42-xxviii (2003-04), para 42. Back

192   Ev 8. Back

193   Ev 7. Back

194   Ibid. Back

195   Ibid. Back

196   The 1968 Brussels Convention on jurisdiction and recognition and enforcement of judgments in civil and commercial matters. Back

197   Ev 11. Back

198   Ev 95, 98. Back

199   Ev 99. Back

200   Ev 115, citing SEC(04) 693. Back

201   Ev 99. Back

202   Ev 124. Back

203   Ev 113. Back


 
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