House of Commons - European Scrutiny

Select Committee on European Scrutiny Forty-First Report

Implementing the Hague Programme on justice and home affairs

(a)

(27656)

11222/06

COM(06) 331

(b)

(27670)

11228/06

COM(06) 333

+ ADD 1

+ ADD 2

(c)

(27669)

11223/06

COM(06) 332

+ ADD 1

Commission Communication: Implementing the Hague Programme: the way forward

Commission report on the implementation of the Hague Programme in 2005

Commission staff working document: 2005 implementation scoreboard — action by Member States

Commission staff working document: institutional scoreboard — action by the Commission, Council or European Parliament

Commission Communication: Evaluation of EU policies on freedom, security and justice

Commission staff working document: impact assessment

Legal base —

Document originated 28 June 2006

Deposited in Parliament 6 July 2006

Department Home Office

Basis of consideration EMs of 16 October 2006, oral evidence from the Minister on 18 October 2006 and Minister's letter of 30 October 2006

Previous Committee Report None

To be discussed in Council 4-5 December 2006

Committee's assessment Politically important

Committee's decision (a) and (b) For debate on the Floor of the House
(c) Cleared

Introduction

1. In November 2004, the European Council agreed a five-year programme of action on justice and home affairs, including policies on visas, asylum and immigration and on police and judicial cooperation in criminal matters ("the Hague Programme").[1] The European Council said that the Programme was based on a pragmatic approach and grounded on the principles of subsidiarity, proportionality, solidarity and respect for the different legal systems and traditions of the Member States. It stressed the importance of evaluating the effects of legislation on justice and home affairs and invited the Commission to produce annual evaluation reports. The Government told the previous Committee that it welcomed the Programme's emphasis on a practical approach and on evaluation and implementation.

2. In June 2005, the Council adopted an Action Plan to give effect to the Programme.[2] The European Council invited the Commission to present a progress report in 2006 on the implementation of the Programme, together with proposals for any necessary modifications to it.

3. The Commission has presented four Communications in response to the invitation:

The first of them — document (a) — introduces the other documents; summarises the proposals which, in the Commission's view, should receive priority; sets out the case for using Article 42 of the EU Treaty ("the passerelle") to transfer action on police and judicial cooperation in criminal matters from Title VI of the EU Treaty to Title IV of the EC Treaty; and expresses willingness to propose making EC legislation on legal migration subject to co-decision with the European Parliament.

Document (b) is the Commission's annual report for 2005 on the implementation of the Hague Programme by EU institutions ("the scoreboard"). It also reports on action by Member States to transpose EC or EU instruments on justice and home affairs into national law.

Document (c) sets out the Commission's proposals for a comprehensive mechanism to evaluate all EC and EU policies on justice and home affairs.

The fourth document sets out the case for widening the jurisdiction of the European Court of Justice (ECJ) to allow courts of first instance in the Member States to make preliminary references to the ECJ about matters covered by Title IV of the EC Treaty (asylum, visas, immigration and judicial cooperation in civil matters). We considered the document on 11 October.[3] We decided to ask the Government for further information and to keep the document under scrutiny meanwhile.

Legal background

4. Title IV of the EC Treaty makes provision for Community action on visas, asylum, immigration and specified aspects of judicial cooperation in civil matters with cross-border implications. The procedure for the adoption of measures on these matters (with the exception of measures on legal migration and family law) is qualified majority voting (QMV) and co-decision with the European Parliament.

5. Article 68 of the EC Treaty defines the jurisdiction of the European Court of Justice (ECJ) in matters covered by Title IV. A court or tribunal of a Member State "against whose decisions there is no judicial remedy under national law" must request a ruling from the ECJ if it considers that a decision on the interpretation of Title IV or on the validity or interpretation of acts of the institutions is necessary to enable it to give judgment. The ECJ does not have jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) of the EC Treaty (measures on the crossing of external borders of the Member States) relating to the maintenance of law and order and the safeguarding of internal security. The Council, the Commission or any Member State may refer a question of interpretation to the ECJ, but in such a case the ruling given by the ECJ does not apply to judgments of courts or tribunals of the Member States which "have become res judicata" (that is, where the court or tribunal has finally determined an issue on the merits between the parties to the dispute).

6. The Commission has power to initiate infraction proceedings against a Member State if it does not comply with its obligations arising from a measure adopted under Title IV of the EC Treaty.

7. The "opt in": Article 69 of the EC Treaty, read with the Protocol on the position of the United Kingdom and Ireland, provides that the United Kingdom does not take part in the adoption of measures under Title IV unless it has notified the Council within three months of the presentation of a proposal that it wishes to participate. If the United Kingdom gives such a notification, it may take part in the negotiations on and the adoption of the measure and will be bound by it. (The United Kingdom may also notify the Council of its intention to be bound by a measure which has already been adopted under Title IV.) This is known as the UK's right to "opt in". There is no power for the UK to "opt out" once the Government has notified its intention to participate in a measure.

8. Title VI of the EU Treaty makes provision for police and judicial cooperation in criminal matters (such as: terrorism, trafficking in human beings, offences against children, fraud, corruption and illicit trafficking in arms and drugs). Unanimity is required for the adoption of a measure by the Council. The Council is required only to consult the European Parliament about proposed measures.

9. The ECJ may give a preliminary ruling on the validity and interpretation of a Framework Decision or Decision adopted under Title VI and on a measure to implement them only if the Member State concerned has given notice of its intention to accept the Court's jurisdiction to give preliminary rulings in such matters. The ECJ does have jurisdiction, however, to review the validity of Framework Decisions and Decisions in actions brought by a Member State or the Commission on the grounds specified in Article 35(6) of the EU Treaty, such as infringement of an essential procedural requirement. It also has jurisdiction to rule on any dispute between Member States about the interpretation or application of measures adopted under Title VI if the dispute cannot be settled by the Council.

10. The Commission has no power to seek to enforce Title VI measures through infraction proceedings.

11. The "passerelle": Article 42 of the EU Treaty gives the Commission or a Member State the right to propose that action on police and judicial cooperation in criminal matters should be dealt with under Title IV of the EC Treaty, instead of under Title VI of the EU Treaty. The proposal for the transfer would require the unanimous agreement of the Council, after consultation with the European Parliament. The change would then have to be ratified by every Member State (in the UK, by primary legislation). Article 42 is known as the "passerelle" (or gangplank).

Document (a) — the Commission's proposals for "the way forward"

12. The Communication has two parts:

· the first outlines the Commission's proposals for action to implement the Hague programme between now and the end of 2009; and

· the second part argues that decision-making on police and judicial cooperation in criminal matters needs to be faster, more effective and more accountable and states the Commission's belief that use of the passerelle in Article 42 of the EU Treaty provides an appropriate tool to achieve this.

13. The Commission proposes action on the following matters:

· fundamental rights and citizenship of the EU (including better information about, and improved cooperation for, diplomatic and consular protection of EU citizens in third countries);

· asylum (including an evaluation of the existing EC legislation; and a Green Paper on asylum policy);

· the management of the EU's external borders (including the creation of rapid reaction teams to help a Member State if it is faced with an unexpected influx of illegal immigrants; and an assessment of the feasibility of creating a new EU information system to record the entry and exit of every third country national);

· mutual recognition of decisions in civil and criminal matters, including the introduction of EU-wide rules on, for example, procedural guarantees and the presumption of innocence;

· access to information so as to counter terrorism and organised crime (including the exchange of information about criminal records);

· an Internal Security Strategy to strengthen cooperation in the fight against terrorism and organised crime;

· Europol (replacing the Europol Convention by a Council Decision and giving the European Parliament oversight of Europol); and

· a comprehensive system for the evaluation of European justice and home affairs policies, as proposed in document (c).

14. The Commission says that there have been numerous "blockages" in the development of policies on justice and home affairs. For example, in the Commission's view, the Council was able to reach agreement on the proposal for a European evidence warrant "only after extremely lengthy negotiations and on the basis of the lowest common denominator".[4] The Commission also refers to the failure to reach agreement, after three years of negotiation, on basic procedural rights, such as the right to an interpreter when arrested.

15. The Commission says that:

"Decisions on police and judicial cooperation in criminal matters … still need unanimous agreement by all Member States. These matters are dealt with under a particular framework (under Title VI EU), which applies the so-called 'third pillar' method, characterised by:

· specific legislative instruments (Common Positions, Framework Decisions and Conventions) which complicate further its implementation;

· insufficient powers for the European Parliament in the legislative process;

· use of unanimity that often leads to agreement on the lowest common denominator basis;

· a shared right of initiative with [sic] each of the 25 Member States that does not favour a true 'European dimension', nor the accountability of the Member States' legislative initiatives, which are not submitted to ex-ante impact assessment;

· a limited role for the [European]Court of Justice … ; and

· the lack of formal infringement procedures to ensure proper transposition and implementation."[5]

16. The Commission believes that these deficiencies could be remedied by the use of the "passerelle" provided by Article 42 of the EU Treaty. It says that the following advantages would be obtained if the passerelle were used:

· democratic legitimacy would be increased by making measures on police and judicial cooperation in criminal matters subject to co-decision with the European Parliament;

· the "European dimension" would be guaranteed by giving the Commission the right to initiate proposals for legislation on these matters;

· delays in the legislative process would be reduced by moving to QMV and the quality of legislation would be improved by removing the temptation to adopt the lowest common denominator as the only way to achieve unanimity; and

· judicial protection would be improved by giving the European Court of Justice jurisdiction in police and judicial cooperation in criminal matters.

17. The Commission notes that Article 67(2) of the EC Treaty empowers the Council, acting unanimously and after consultation with the European Parliament, to decide that all or some of the matters covered by Title IV of the EC Treaty (visas, asylum and immigration) should become subject to QMV in the Council and co-decision with the European Parliament. The power has already been used to make all but legal migration and family law subject to QMV and co-decision. The Commission says that it is now willing to propose the use of Article 67(2) to make action on legal migration subject to co-decision, "ensuring therefore a proper democratic scrutiny by the European Parliament".[6]

The Government's views on document (a)

18. We are grateful to the Parliamentary Under-Secretary of State at the Home Office (Joan Ryan) for her Explanatory Memorandum on document (a). We are also grateful to her for the oral evidence she gave us on 18 October.

19. The Government welcomes document (a) as a useful means to assess progress on the implementation of the Hague programme and to identify any necessary adjustments to priorities. The Minister's Explanatory Memorandum comments on each of the proposals in the first part of the document.

20. Among other things, the Minister says that the Government will want to look very closely at the proposals the Commission intends to present on asylum, internal security and criminal law. Paragraph 12 of the Explanatory Memorandum says that the Government will also want "to examine carefully the forthcoming proposals from the Commission on Euro-consulates and the consular code, since they fall outside Community competence and we believe that they either duplicate or cut across existing arrangements for consular cooperation between Member States".

21. The Explanatory Memorandum notes that the Commission proposes that the forthcoming Green Paper on Asylum Policy should be followed by a Policy Plan on Asylum in 2007 and that it will set out the next steps on the second phase of a Common European Asylum System. The Government is concerned that the Commission proposes to do this before the Procedures Directive has been implemented by Member States.[7] It believes that the review should be postponed until 2009 to allow a fuller evaluation of the existing Directives on asylum.

22. The Minister says that the Government supports practical cooperation between Member States and the exchange of information about best practice. But it is less sympathetic to moves to harmonise Country of Origin information (for use in connection with consideration of applications for asylum) unless it can be done without compromising the standards the UK applies and without undue cost. The Government will also argue against new legislation to require practical cooperation between Member States unless clear benefits can be shown.

23. Commenting on the Commission's proposed priorities on mutual recognition in civil and criminal matters, paragraphs 21 to 23 of the Minister's Explanatory Memorandum say:

"The Commission intends to focus on the adoption and implementation of proposals already agreed or under discussion. It will also aim to strengthen mutual confidence by ensuring balanced legislation for both prosecution and defence, including legislation on procedural guarantees and training of the judiciary. … In the longer term the Commission sees value in establishing a single area of justice in civil and criminal matters … .

"The Government agrees that cooperation in civil matters is necessary for business and EU citizens, although we recognise the difficulty of agreeing proposals on family law. We strongly support the reinforcing of mutual recognition as the cornerstone of the Union's policies. However, we do not support harmonisation of substantive civil law as an end in itself, having regard in particular to the value of the common law to the UK legal system.

"Similarly, we believe that extreme caution needs to be exercised on the basis and need for approximating criminal procedural law … There is broad agreement within the EU that cooperation in this area can and should be improved but given the changed circumstances [such as the uncertainty about the Constitutional Treaty] and experience since the adoption of the Hague Programme serious consideration should be given to non-legislative measures as a viable alternative to the current programme."

24. As to the passerelle, the Minister's Explanatory Memorandum says that the Government has concerns about the potential impact of any proposal based on Article 42 of the EU Treaty. It believes that any change to the current arrangements should be made only if those concerns can be met and the change is in the UK's national interest.

25. The Minister says that the Government is still considering the Commission's willingness to propose the use of Article 67(2) of the EC Treaty to make measures on legal migration subject to co-decision.

26. When the Minister gave oral evidence to us on 18 October, we asked her to tell us about the Council's discussions of the passerelle.[8] [9] She told us that she took part in the Council's discussion in September which, she thought, had "directed the shape of the discussion in October". She said that the Commission is very strongly in favour of using the passerelle. She continued:

"I think it is true to say that there was some very significant opposition to this round the table and significant opposition from some big players as well as perhaps from some of the smaller countries. Our own position that I outlined was that we would never say we will not discuss an issue, because that is not an approach we should take with partners, but the fact that we discuss something does not mean that we necessarily either agree with it or that we do not have concerns. The position I outlined was that our view is that unanimous voting is not a bar to getting good decisions or getting speedier decisions, though we would agree with the Commission that we do want to see decisions that are able to be made within a reasonable time-frame. The fact that some decisions are would indicate that it is not unanimity itself that is the bar and that there might be something about the content of the decisions that is causing the problem … so we want speedy decisions but we do not think we necessarily have to have QMV for that to be the case."

27. We asked the Minister if the Government would oppose the use of the passerelle.[10] She said that it would be premature to reach a decision because the Government's "serious concerns" had not yet been addressed. At this stage she had not ruled out the use of the passerelle and she had not ruled it in.

28. We put it to the Minister that this is not a new issue. At the Convention on the future of Europe, the then Minister for Europe said that the extension of QMV to the criminal justice and court system would not be acceptable to the Government.[11] The Minister told us that the Government had not retreated from any previous position. She reiterated that the Government had serious concerns about the proposal, as have some other Member States. But the Government would not refuse to discuss the matter with its partners in the Council. She said:

"The issue is now at a point where it is for the Finnish Presidency to come back with whether they are going to carry on [with the proposals for the use of the passerelle] and take it any further or whether it will remain where it is, which is really that it has made no progress."

29. We noted that police and judicial cooperation in criminal matters concerns issues which are devolved to Scotland. We asked, therefore, if a Scottish Executive Minister was present at the Council's discussion and, if one was not present, what the Minister had said at the Council about the position of the Scottish Executive.[12] The Minister said that a Minister of the Scottish Executive had not been present but that the Scottish Executive had been consulted as part of the Government's preparations for the Council meeting and that it was content with the position the Government had taken.

30. We asked the Minister whether, if the passerelle were used, the EC would have external competence over extradition and what effect that would have on the scope for the Government to negotiate bi-lateral agreements with third countries for the extradition of terrorists.[13] The Minister said that this was among the matters about which the Government was concerned and she knew that the concern was shared by the Justice Minister of the Republic of Ireland. If the matters covered by Title VI of the EU Treaty were transferred to Title IV of the EC Treaty, the external competence of the Government on police and judicial cooperation in criminal matters could be restricted.

31. Finally, we asked the Minister to tell us the Government's specific concerns about the effect of using the passerelle.[14] She told us that its concerns were about the extension of the EC's external competence, the potential effect on national security and the need for safeguards such as "the emergency brake".[15]

32. On 30 October, the Minister sent us a letter about some of the matters which had been raised during her oral evidence. In a passage about the use of the passerelle, the Minister 's letter says that it is unclear whether the Finnish Presidency will propose further work on the subject during its Presidency and that:

"The Government considers the current debate to be over and that we should instead focus on practical measures in the current JHA agenda."

Document (b) — the Commission's report on the implementation of the Hague Programme in 2005

33. This is the first of the annual reports the Commission will make on the implementation of the Hague Programme.

34. The report is in two parts. The first part examines each of the measures which were scheduled for action by the Commission, Council or European Parliament in 2005.[16] It says which were done in that year, which are currently being done and which have been delayed. For example, the Commission presented its Green Paper on economic migration on time, but the evaluation of the European Refugee Fund had to be postponed to 2006. The Commission notes that there were major delays in the adoption of two "flagship measures" — the Framework Decisions on the European Evidence Warrant and on procedural rights.

35. The Commission concludes that progress in dealing with matters under the EC Treaty was satisfactory (but even there the requirement for unanimity for some matters caused delay). By contrast, progress was slow on matters falling within Title VI of the EU Treaty because of the requirement for unanimity and the Council's "uncertainty and hesitations regarding the choice of legal bases".[17] The Commission says that:

"This report reveals that there is room for improvement in the existing framework, in particular regarding the decision-making process in the areas of police and judicial cooperation in criminal matters."[18]

36. The second part of the report is about Member States' transposition into their national law of the EC and EU legislation on justice and home affairs. ADD 1 lists the measures whose implementation was due by the end of March 2006 and comments on Member States' compliance with the requirements for transposing each of them. The Commission says that infringement proceedings are clearly influential in securing timely and accurate transposition of the measures adopted under Title IV of the EC Treaty. It concludes that the most striking deficiencies, in both quantitative and qualitative terms, affected the transposition of measures under Title VI of the EU Treaty:

"For example, there is no apparent national equivalent of the Union's determination in the fight against terrorism … ."[19]

The Government's views on document (b)

37. In her Explanatory Memorandum on document (b), the Minister says that the Government is broadly content with the details set out in the first part of the report but notes that there are some gaps.

38. Commenting on the second part of the report (transposition by Member States), the Minister's Explanatory Memorandum notes that none of the legislation listed in the Hague Action Plan was due for transposition by the time the Commission wrote document (b) in June.

39. The Minister's Explanatory Memorandum refers to the Commission's view that the requirement for unanimity for the adoption of legislation under Title VI of the EU Treaty probably contributed to delays in the decision-making process; moreover, she refers to the Commission's suggestion that delay was also caused by the Council's uncertainty and hesitation about the choice of legal bases. The Minister says that the evidence underpinning the Commission's views on these points is "partial and open to interpretation". In paragraph 12 of her Explanatory Memorandum, she says that:

"The Government is committed to proper implementation of EU measures in all areas, including under Title VI TEU. We would be interested to see further evidence from the Commission that implementation is demonstrably quicker under the first pillar. The Government agrees that speed is important but also believes that it is crucial that policies are thoroughly discussed, well thought out and in the national interest."

40. Paragraph 14 of the Minister's Explanatory Memorandum comments on the Commission's statement that there is no apparent national equivalent to the Union's determination in the fight against terrorism. The Minister says:

"There appears to be no basis for this statement, and the Government fundamentally disagrees, given that we remain absolutely determined to fight terrorism and our experience of working with other Member States is that they do too."

Document (c) — evaluation of EU policies on freedom, security and justice

41. The Commission proposes "a coherent and comprehensive mechanism" for the evaluation of EU policies on freedom, security and justice. The mechanism would have two components:

· monitoring the implementation of policies (covering the process for adopting policies at EU-level and then transposing them into national law or otherwise implementing them); and

· evaluation of the impact and effectiveness of the policies in the short and medium-term, providing enough flexibility to tailor the evaluation to the circumstances of each policy.