Select Committee on Home Affairs Third Report

4  Institutional Questions

300. In our inquiry we were interested in two key questions in the debate over how Justice and Home Affairs at the European Union should be progressed:

a)  Is there a case for further measures at the EU level (and how effective are current EU measures)?

b)  Are the mechanisms through which JHA measures are drawn up and enacted effective?

301. We have addressed the first question in section 3 of this report. In this section we shall address the second question.

302. Some of our witnesses pointed out that Member States had identified political priorities, and committed themselves to enact consequential measures, in the Hague Programme. They argued that Member States have therefore agreed what they want to achieve in JHA and now need to ensure that EU institutions and systems are equipped to achieve these aims in the best way. Florian Geyer from the Centre for European Policy Studies told us "If we are sure where and how we want to go we should find the proper tools to do it".[229]

303. In the absence of the Constitutional Treaty, the Commission and many EU observers have argued that an institutional 'stalemate' has been reached, particularly in JHA. In its paper on the mid-term review of the Hague Programme in 2006, the Commission commented that good-quality and timely decisions are increasingly hard to reach in the third pillar. It said that a number of measures are bogged down indefinitely in the decision-making mechanisms, and that where agreement is reached, it is often on the basis of the 'lowest common denominator'. The Commission also criticised what they regarded as the insufficient role played by the European Parliament in respect of third pillar measures, and the limited role of the Court of Justice. (We set out details of the pillar structure and its implications in paragraphs 41 and 44-52 above.)

The debate about third-pillar decision-making

304. It is argued that problems with the current arrangements for JHA decision-making fall into four categories: treaty limitations, stalled and poor quality decisions, lack of implementation and a democratic deficit. We deal with each in turn.

305. The current treaties provide for an EU of no more than 27 Member States. Since this ceiling has now been reached, the treaties either need to be amended, or enlargement must stop. In addition, the Nice Treaty provides for a slimmed-down Commission in 2009. This will have consequences for the decision-making process. Some institutional change is therefore mandatory by 2009, and in advance of further enlargement.

306. It is frequently claimed that third-pillar procedures lead to stalled measures and poor quality compromises. Earlier in this report we have given detailed consideration to two third-pillar measures where agreement has not yet been reached: the draft Framework Decision on procedural rights in criminal proceedings, and the draft Framework Decision on data protection. There are a significant number of other measures on which agreement has eventually been reached, but which arguably have been 'watered down' to take account of individual Member States' objections and special interests.[230]

307. Many witnesses claimed that the quality of JHA measures has become seriously compromised as a result of third pillar procedure. SOCA told us that "decision making can be slow and on occasions lead to application of the lowest common denominator approach".[231] Baroness Ludford MEP cited as examples Commission proposals on cross-border investigation and prosecution, on information exchange between law enforcement authorities, on tackling race hate crime, and on procedural rights.

308. Jonathan Faull of the European Commission gave the example (which we have considered earlier in the report, at paragraphs 185 to 189) of the European Evidence Warrant, which he said "took years to enact and when it was finally enacted earlier this year it was legislation with many exceptions, exemptions and derogations for Member States".[232]

309. A further problem with third pillar arrangements, according to some of our witnesses, was that even when a proposal has been agreed, Member States often fail to implement measures properly. The Centre for European Policy Studies told us:

It can be observed that Member States' implementing activities are generally rather slow and reluctant in spite of earlier agreements on binding deadlines or invigorated declarations on the urge and necessity of certain measures. This observation can be made in relation to nearly every single third pillar action taken by the Council in the last years.[233]

However, Eurojust commented that, although implementation may be poor under the third pillar, it would not necessarily be better under the first pillar:

if decisions are to be made by qualified majority voting, one wonders if the quality and consistency of the implementation into national law will be so good in those Member States who were in the minority when such decision are made. [234]

310. Finally, the Commission has argued that the limited role of the European Parliament in the third pillar consultation process represents a democratic deficit.[235] Under third pillar procedures, the EP has a consultative role only, whereas under first pillar procedures it has the right of co-decision with the Council of Ministers and thus effectively has a veto on measures.

Reasons for the problems

311. The Commission has attributed the poor quality of decision making in the third pillar to the requirement for unanimity[236] between the Member States. It argues that this requirement is much more of an impediment now that the EU contains 27 Member States. The Criminal Bar Association (England and Wales) made a similar point:

Enlargement of the EU to 25 Member States (soon to be 27) has reduced the likelihood of reaching unanimity in relation to third pillar measures. On many files, notably the proposal on procedural safeguards, this has already resulted in progress becoming snail-like or non-existent.[237]

The numerous exemptions to the European Evidence Warrant, and failure yet to reach agreement on the Framework Decisions on data protection and procedural rights, would seem to support the argument that the requirement for unanimity is a significant factor in impeding effective decision-making.

312. The UK Government, however, has told us that it does not consider the unanimity requirement in itself to be a bar to good decision-making. It argues that proper evaluation prior to adoption will improve the quality of decisions:

The JHA Council has achieved results of real substance and shown that unanimity need be no bar to fast and decisive action … The EU should be focussing on implementation… Decision-making could be made more effective by ensuring that new proposals are properly evaluated before being published.[238]

313. The Government and other witnesses cited the European Arrest Warrant as an example of how major, good-quality measures can be agreed unanimously, if the political will exists to do so.[239] (We discuss the EAW earlier in this report, at paragraphs 160 to 178.) The counter-argument to this would be that the EAW was agreed to in very unusual circumstances (the immediate aftermath of 9/11), and was agreed to by an EU of only 15 Member States.

314. An interesting comparison to the EAW is provided by the Data Retention Directive, driven through the Council by the then UK Home Secretary Charles Clarke in 2005. This measure was passed in the wake of the terrorist attacks in London in July 2005. The UK Government chose to propose the measure under the first pillar rather than the third, and was able to secure agreement relatively rapidly. It is interesting that, when faced with a measure for which speed is desired, the Government chose to use the first pillar.

315. The likelihood that some Member States will poorly implement third pillar measures is increased by the fact that they face no sanctions or adverse consequences if they fail to implement what they have signed up to. The Commission has no powers to bring infringement proceedings against Member States in respect of third pillar measures.[240] The Law Society (England and Wales) told us that:

The current lack of enforcement power in relation to Member States' implementation of framework decisions tends to make a mockery of implementation deadlines and again limits the effectiveness of coherent action.[241]

Likewise, Open Europe commented that the Commission can tell Member States they are in violation of framework decisions but that "Member States are free to ignore these matters".[242]

316. Some witnesses suggested that agreement can be hard to reach because the measure being proposed attempts to do too much. Open Europe, for instance, stated "the problem is not necessarily the system but the proposals being put forward: they are too ambitious".[243]

Is QMV the answer?

317. The Commission argues that many of the difficulties which beset current decision-making on criminal law could be tackled by transferring it from the third pillar to the first pillar.[244] That would enable decisions to be taken by qualified majority voting (QMV) rather than through unanimity. It would also give the European Parliament a co-decision role rather than simply a consultation role. (Please see paragraphs 41 and 44-52 above for fuller details of the pillar structure.)

318. We consider in paragraphs 329 to 340 below the modalities of how a transfer between pillars might be achieved. In this section we review whether such a transfer would be beneficial from the point of view of the UK's interests.

319. On the one hand, there is no doubt that first pillar procedures would increase both the speed of decision-making and the likelihood of measures of real significance being approved.

320. On the other hand, the implications of such a transfer for what is frequently referred to as 'national sovereignty', both for the UK and other Member States, would be considerable.

321. On this latter point, we heard a variety of views. Some of our witnesses argued that there would be no real diminution in Member States' influence. Jonathan Faull, Director-General for Freedom, Security and Justice at the Commission, argued that "people would not necessarily have to give up things they hold dear. They would have to make perhaps a greater effort to persuade the others why it is necessary to do so". He noted that "even with the unanimity system we have at the moment, it is rare, very rare in fact, for one Member State alone to be isolated on a particular issue."[245]

322. The Law Society commented that on first-pillar decisions, "the way the politics pans out is not sidelining or alienating one Member State on a particular issue, so it is a lot more built up on consensus and rarely ever goes to a crucial vote".[246] Other witnesses argued that the UK would effectively not lose its national 'veto' if JHA were transferred to the first pillar, because it would be likely to retain the right to opt in which it enjoys in Title IV of the EC Treaty.[247]

323. However, the Parliamentary Under-Secretary at the Home Office, Joan Ryan MP, expressed concern that QMV could mean that measures were passed even in the face of strong opposition from individual Member States:

If you go to QMV for some of these issues … and some countries feel that they are being ridden roughshod over, I think that would be very damaging to the EU.[248]

324. Despite the opt-in, some concerns were expressed that the UK would still be in a weaker negotiating position under QMV because it would have to opt-in to measures early on, or, if it chose not to opt-in, it would have a weakened voice:

the opt-in arrangement clearly would not give the UK as much control as a veto. Member States have three months to opt-in to a new measure once it has been proposed. If, as the legislation is drafted, the UK or Ireland do not like the way it turns out, it is not possible to opt back out again.[249]

325. It is also the case that, under QMV, the Government would have an option to invoke Section 2.2 of the European Communities Act to implement agreed EU measures in the UK through secondary legislation.

326. One further consideration is that under existing third pillar arrangements, the UK's interests may be damaged if other Member States insist on their right to block proposals which the UK supports. An interesting illustration of the issues involved is given by a recent third-pillar proposal on the transfer of prisoners between Member States. Under the measure, supported by the UK, EU nationals convicted in another Member State would be transferred, within a certain time limit, to their state of nationality to serve their sentence. A Commission proposal on the subject was held up for some time in Council negotiations, with Poland expressing particularly strong objections. This measure might therefore seem to be a good example of UK priorities being exasperated by the unanimous voting procedure under the third pillar.

327. Agreement was reached, however, at the JHA Council in February 2007, on the basis of a compromise whereby Poland was given a five-year derogation from implementation. We asked the Government whether the concessions required from the UK (and other states) to achieve agreement had resulted in a satisfactory measure. Ms Ryan told us that the Government was satisfied with the agreement:

It is certainly the case that we would have preferred that Poland signed up in the same way that other Member States had … but overall, given the strength of their objections, we reached a good agreement.[250]

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 take.

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.[251] 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.[252]

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.[253]

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".[254] 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 making policy.

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.[255]

Institutional changes: conclusions

341. We 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.

343. Throughout 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.

344. Having 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

230   See, e.g., Q 164 Back

231   Ev 170 Back

232   Q 67 Back

233   Ev 100-101 Back

234   Ev 118 Back

235   Com(2006) 331 final, p12 Back

236   Ibid. Back

237   Ev 112 Back

238   Ev 132 Back

239   Ev 132 Back

240   Q 70 (Faull) Back

241   Ev 141 Back

242   Q 43 Back

243   Q 38 Back

244   Com(2006) 331 final, p13-4 Back

245   Q 68 Back

246   Q 182 Back

247   See, for example, Q 102 (Michael Cashman MEP) Back

248   Q 358 Back

249   Ev 155 Back

250   Q 312 Back

251   In its Communication of July 2006 Implementing the Hague Programme-the way forward Back

252   Q 360 Back

253   Q 362-4 Back

254   Q 55 Back

255   Ev 132 Back

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