Future options for JHA decision-making
328. EU leaders signed up to the 'Berlin Declaration'
on 25 March 2007. The Declaration did not explicitly refer to
institutional change, or to the form this might take, but did
include a shared commitment to "place the EU on a renewed
common basis" before the European Parliament elections in
2009. It is clear that the current German Presidency will press
for a further commitment to institutional change, and it is likely
that negotiations on the nature of this change will begin in earnest
at the forthcoming JHA Council (12-13 June 2007) and European
Council (21-22 June 2007). We considered what forms this might
329. The Constitutional Treaty proposed a transfer
of JHA from the third to the first pillar. In the light of the
present impasse in achieving ratification of the Treaty by all
Member States, and in answer to the issues it has raised with
third-pillar procedures, the Commission has proposed implementing
Articles 42 of the Treaty on European Union (TEU) and 67 of the
Treaty on European Community (TEC): the so-called 'passerelle'
or bridging clauses.
These articles provide a legal basis on which all third pillar
JHA activity could be transferred into the first pillar, bringing
it under qualified majority voting (QMV) and co-decision with
the European Parliament. Under the passerelle clauses the
UK would enjoy the same right to opt in to all the transferred
areas, as it currently enjoys in all other first pillar areas.
330. The passerelle clauses would effect part
of what was provided for in the Constitutional Treaty, which would
have abolished the pillar structure. However, the Treaty also
contained a number of negotiated safeguards which would not be
provided if the passerelle clauses were to be implemented.
These safeguards included a so-called 'emergency brake' which
applied to criminal law and procedure. The 'emergency brake' would
have allowed any Member State who judged that EU action threatened
fundamental domestic legal principle to appeal to the European
Council. An additional safeguard at national level for EU proposals
for criminal law was provided by the 'subsidiarity principle'.
This is a general principle of European Community law which stipulates
that the Community can only act when it can be demonstrated that
results cannot be better achieved by Member States acting alone.
The Constitutional Treaty provided that, in JHA issues, if a quarter
of national parliaments consider a proposal to breach the subsidiarity
principle, the Commission must reconsider the proposal. Article
1.11 (3) of the Treaty states:
Any national Parliament or any chamber of a national
Parliament may, within six weeks from the date of transmission
of a draft European legislative act, send to the Presidents of
the European Parliament, the Council and the Commission a reasoned
opinion stating why it considers that the draft in question does
not comply with the principle of subsidiarity [i.e. that legislative
action should be taken at the appropriate level].
331. At the time of writing this report, views amongst
Member States regarding the passerelle proposal are divided.
It is understood that the current holder of the Presidency, Germany,
is strongly opposed to the measure, largely on the grounds that
it would amount to 'cherry-picking' individual clauses of the
Constitutional Treaty, and thus render it less likely that the
Treaty as a whole will ever be brought into effect, which would
be Germany's preferred outcome.
332. The UK Government has been studiously non-committal
about its position in relation to the passerelle proposal,
despite pressure from parliamentarians to reveal its hand. The
Parliamentary Under-Secretary at the Home Office, Joan Ryan MP,
told us that she would not agree that the proposal was "dead",
insisting that the UK did not like to rule out discussion on any
proposal, in the spirit of European 'partnership'. She noted that
UK support for the Constitutional Treaty had been dependent on
the safeguards, such as the emergency brake, which had been negotiated
into it, and which the passerelle proposal lacked.
333. There has been no agreement between Member States
to bring forward a firm proposal on implementation of the passerelle
clauses, and the discussion seems at least temporarily to
have lapsed. Ms Ryan told us in February 2007 that:
The discussion around the passerelle and Article
42 is finished
I do not think there is any prospect that
the passerelle is going to reappear on the agenda under
the German Presidency.
334. An alternative solution to institutional problems
would be to bring forward a revised proposal for a Constitutional
Treaty, or a 'mini-treaty'. It remains to be seen whether
the German Presidency will bring forward any such proposal.
335. In the absence of institutional reform, two
options are open to Member States who are dissatisfied with current
procedures for decision-making in the third pillar: so-called
'enhanced co-operation', or proceeding by way of inter-governmental
treaty (as happened with the Prüm Treaty).
336. As we have mentioned in paragraphs 225-26 above,
the current Treaty on European Union provides for a situation
in which a number of Member States, but not all, want to agree
a joint measure. They can do this by 'enhanced co-operation',
which means that eight or more Member States may go ahead with
a measure, as long the Council unanimously authorises them to
do this. Member States who do not participate retain the choice
to join the agreement later on. Florian Geyer of the Centre for
European Policy Studies told us that enhanced co-operation is
envisaged by the treaties as a "last resort".
It would take place within the formal framework of the EU, and
therefore be subject to scrutiny by the European Parliament.
337. The incorporation of the Schengen acquis into
EC/EU law provides the most prominent example of 'enhanced co-operation'
to date. And as we have seen, Germany and other Members States
may decide to pursue this option if progress on agreeing a Framework
Decision on procedural rights remains stalled.
338. A major disadvantage of 'enhanced co-operation'
is that although non-participating Member States are offered the
choice whether to join the agreement later on, in reality they
may have little influence in shaping an agreement or legislation
when it has already been 'pre-designed' and tested by the participating
states. This would seem to be a very unsatisfactory method of
339. Even less satisfactory than 'enhanced co-operation',
which at least operates within the usual institutional checks
and scrutiny provided by the EU framework, is policy-making
by inter-governmental treaty. Such agreements are concluded
directly between Member States' governments, outside the EU framework
and therefore outside the competence of the European Parliament
or European Court of Justice. The best example of inter-governmental
treaty to date is the Prüm Treaty which (as we have seen
in paragraphs 138-39 above) was agreed in secret in 2006 by seven
Member States to provide for enhanced cross-border co-operation
in policing. The Council decided in February 2007 to adopt Prüm
into the EU's legal framework.
340. Despite what has happened with the Prüm
Treaty, the UK Government does not accept that there is a trend
towards either 'enhanced co-operation' or use of inter-governmental
treaty as a means of circumventing the perceived constraints of
third pillar decision-making. The Home Office told us that:
Bi-lateral and multi-lateral agreements between EU
Member States outside EU structures are not new (for example the
Schengen agreements date back to 1985) so it is not clear that
there is a recent trend towards such arrangements. The Government
is open to consideration of ways to improve decision making but
there is no evidence to suggest that mechanisms that have been
in place for many years are suddenly causing Member States to
seek alternative ways of co-operating.
The Prüm Treaty is an example of a group of
Member States seeking to improve their ability to co-operate even
further. There is no indication that Prüm or other bi-lateral
or multi-lateral agreements represent a move to EU fragmentation.
Indeed the stated intention of the Prüm signatories is to
offer it up as the basis for an EU measure once it has been implemented
and tested by the signatories.
The Government believes that the ability to continue
to reach agreement on practical co-operation measures outside
EU structures provides necessary and valuable flexibility to supplement
EU measures. It does not mean that EU structures are being bypassed
or that the EU is fragmenting.
Institutional changes: conclusions
are aware that EU Member States are currently discussing how to
revise decision-making procedures in the wake of the failure of
the proposed EU constitution to win support in a number of Member
States. The Constitutional Treaty proposed significant changes
to decision-making in JHA issues. The most controversial would
have made elements of criminal law subject to qualified majority
voting in the Council of Ministers. The implications of this for
the UK would be significant. If elements of criminal law and procedure
were to be brought under QMV then, at least in principle, the
Government could be outvoted in the Council. In this case both
the Government and Parliament would be required to pass legislation
on issues of particular principle and sensitivity which neither
the Government nor Parliament had desired.
342. At present
a number of Directives which have been agreed under the first
pillar have been implemented in UK law by secondary legislation.
It would be even more unacceptable for EU measures on criminal
justice to be introduced without primary legislation, as happens
with some existing EU measures under QMV. We also note that any
future changes to the list of 32 offences in relation to which
both the European Arrest Warrant and the proposed European Evidence
Warrant are applicable would be approved under QMV, and thus might
be imposed on individual Member States which opposed the changes.
this report we have looked at a range of current initiatives at
EU level. The evidence we have seen does not persuade us that,
as things stand at present, there are sufficient benefits in terms
of tackling crime, either here in the UK or across the EU, to
justify such a major transfer of power away from individual Member
States as would be entailed by a switch of criminal law from the
third to the first pillar. It is true that the level of real risk
to UK interests can be overstated. The UK has sufficient power
and influence to ensure that it would rarely, if ever, be outvoted
or required to accept something against its interests. But the
constitutional principle cannot be lightly set aside. The examples
of the European Arrest Warrant and the recent measure on transfer
of prisoners suggest that it is by no means impossible for good
decision-making to take place within third-pillar procedures.
said this, we believe that the UK Government must also recognise
that an equally strong risk to our effective sovereignty may be
posed by a proliferation of informal decision-making structures
such as those devised by the participants in the Prüm
treaty. It is highly regrettable that the UK did not participate
in the Prüm process from the start. Similar informal arrangements
within small groups of Member States may produce de facto
changes over which we have less influence than we would through
the mechanisms of QMV. This is one reason why the UK should not
absent itself again from such informal discussions.
345. We recommend
that the UK Government should make clear to its EU partners that
at present the case for moving criminal law matters from the third
pillar has not been made. There is room for debate as to whether,
in the future, it may be in the UK's interests to accept such
a change. Members of our Committee hold different views as to
whether it might ever be acceptable to agree to this. It is indisputable
that such a change would be of great significance. The UK Government
should not agree to any such proposal without full and specific
parliamentary consideration of the issue.
229 Q 38 Back
See, e.g., Q 164 Back
Ev 170 Back
Q 67 Back
Ev 100-101 Back
Ev 118 Back
Com(2006) 331 final, p12 Back
Ev 112 Back
Ev 132 Back
Ev 132 Back
Q 70 (Faull) Back
Ev 141 Back
Q 43 Back
Q 38 Back
Com(2006) 331 final, p13-4 Back
Q 68 Back
Q 182 Back
See, for example, Q 102 (Michael Cashman MEP) Back
Q 358 Back
Ev 155 Back
Q 312 Back
In its Communication of July 2006 Implementing the Hague Programme-the
way forward Back
Q 360 Back
Q 362-4 Back
Q 55 Back
Ev 132 Back