9. Memorandum submitted by JUSTICE
1. JUSTICE is a UK-based independent all
party law reform and human rights organisation that aims to improve
justice through law reform and policy work, publications and training.
It is the British section of the International Commission of Jurists
and has been strongly involved in monitoring the development of
a European area of freedom, security and justice over the last
years. It is part of a research network on the European Arrest
Warrant, headed by the T.M.C. Asser Instituut in The Hague.
2. JUSTICE welcomes the House of Commons
Home Affairs Committee's inquiry into current issues of EU justice
and home affairs (JHA) and the opportunity it provides to comment
on important issues of the implementation and future of the Hague
Programme. We particularly welcome the fact that this very timely
inquiry is conducted by a select committee with a domestic remit,
thus emphasising the impact of JHA policy developments at EU level
on UK home affairs.
KEY OBSERVATIONS
3. JUSTICE believes that:
— there is a growing trend for member
states to move away from the commitments contained in the Hague
Programme in the area of police and criminal justice co-operation;
— the balance between elements of citizens'
security on the one hand and justice and respect for fundamental
rights on the other in JHA co-operation policies, struck in the
Tampere conclusions and the Hague Programme, is in acute danger
of being lost by the current impasses in the EU Council;
— a change in the voting conditions
in the Third Pillar under the passerelle cannot be considered
as the panacea to the problems encountered in the EU Council in
the area of police and judicial co-operation in criminal matters.
More than just abolishing member states' veto powers would be
needed to put the Hague Programme back on track.
JHA, THE TREATY
OF AMSTERDAM
AND THE
HAGUE PROGRAMME
4. The member states of the European Union
proclaimed in the Treaty of Amsterdam 1999 that the EU should
be an area of freedom, security and justice. The Union's legislative
competencies to achieve this goal in JHA areas were laid down
both in the Treaty on European Union (TEU) and the Treaty establishing
the European Community (TEC). Areas covered by these powers are
asylum and migration, judicial co-operation in civil and criminal
matters and police co-operation between member states.
5. Fleshing out the means and measures by
which this area of freedom, security and justice should be achieved,
member states at the European Council meeting in Tampere in 1999
committed themselves to a five-year programme of measures to be
adopted at EU level to improve co-operation between member states
in the different JHA policy areas. The Tampere conclusions were
followed, in November 2004, by the "Hague Programme: Strengthening
Freedom, Security and Justice in the European Union", the
current multi-annual programme of legislative JHA measures. Member
states, through the Hague Programme, intended, inter alia,
to "improve the common capability of the Union and its Member
States to guarantee fundamental rights, minimum procedural safeguards
and access to justice, to provide protection in accordance with
the Geneva Convention on Refugees and other international treaties
to persons in need, to regulate migration flows and to control
the external borders of the Union, to fight organised cross-border
crime and repress the threat of terrorism, to realise the potential
of Europol and Eurojust, to carry further the mutual recognition
of judicial decisions and certificates both in civil and in criminal
matters."
THE HAGUE
PROGRAMME: THE
NEED FOR
BALANCE
6. The approach member states took in both
the Tampere conclusions and the Hague Programme was one of careful
balancing of measures and policies improving the security of EU
citizens by means of improved criminal justice co-operation and
enhanced operational police co-operation on the one hand and legislative
projects aimed at strengthening the rights of those subject to
such co-operation measures on the other. In his most recent speech
at the European Parliament's annual JHA debate on 27 September
2006, Commission Vice-President Frattini confirmed that "[t]he
strategic political goal remains striking the right balance between
improving citizens' security and promoting and defending people's
individual rights".
7. Two legislative projects contained in
the Hague Programme provide good illustration of this tandem approach
to the objectives of security and freedom/justice. JUSTICE also
considers their fate to illustrate the present difficulties in
keeping the Tampere/Hague promise of striking the balance between
justice and security when it comes to negotiating EU instruments
in the EU Council. The first of them is the draft Framework Decision
on certain procedural rights in criminal proceedings, which the
Commission proposed in April 2004 (COM(2004) 328 final). This
instrument was meant to complement the numerous (draft) instruments
aimed at enshrining the principle of mutual recognition as the
guiding one in EU criminal justice co-operation by strengthening
the mutual trust member states need to have in the performance
of each other's legal systems for the mutual recognition principle
to work. In the Hague Programme, member states unanimously declared
in November 2004 that "[t]he further realisation of mutual
recognition as the cornerstone of judicial cooperation implies
the development of equivalent standards for procedural rights
in criminal proceedings, based on studies of the existing level
of safeguards in Member States and with due respect for their
legal traditions. In this context, the draft Framework Decision
on certain procedural rights in criminal proceedings throughout
the European Union should be adopted by the end of 2005."
Yet, even on this rather modest instrument, merely fleshing out
some of the rights which all member states already are obliged
to respect under Art 6 of the European Convention of Human Rights
(ECHR), member states are now unable to agree upon. It is an open
question when, if at all, agreement will be reached. Sadly, it
is the UK (amongst other member states) which, despite outward
support for this legislative project, has systematically undermined
the adoption of a meaningful text in the Council negotiations.
8. A similar fate seems to have befallen
the draft Framework Decision on the protection of personal data
processed in the framework of police and judicial cooperation
in criminal matters (COM(2005) 475 final). This instrument was
designed to complement the 1995 Data Protection Framework Directive
95/46/EC in the area of police and criminal justice co-operation
(the EU's Third Pillar), counterbalancing planned EU instruments
aimed at significantly widening and simplifying information exchange
between member states' law enforcement and internal security agencies
(such as the draft Framework Decision on the principle of availability
or the Third Pillar instrument providing the basis for the second
generation Schengen Information System SIS II). The European Commission,
in its Communication "Implementing the Hague Programme: the
way forward" (COM(2006) 331 final), considered that such
information exchange initiatives "must be accompanied by
a legally binding legislation on data protection, ensuring a high
level of protection of personal data in all the Member States."
The Commission goes on to state that it "regrets the lack
of progress on the proposal which it put forward in October 2005
and considers that the quick adoption of its proposal by the Council
is indispensable".[89]
JUSTICE fully endorses these statements. Again, we regret to note
that it is the UK which, among other member states, is withholding
support of significant elements of the Commission proposal while,
at the same time, pushing for the adoption of the draft information
exchange instruments.
9. While JUSTICE has concerns over the way
the balance between security and regard for the fundamental rights
of individuals has been struck in a number of instruments in the
JHA areas of asylum and immigration and civil justice co-operation,
these concerns generally relate only to the detail and drafting
of individual instruments. What we are even more concerned about
is what we perceive to be more fundamental differences in the
general conceptual approach member states currently seem
to be taking to the implementation of the Hague Programme in the
area of police and criminal justice co-operation. These, we believe
seem to have lead to a marked decrease in the enthusiasm some
member states have for further implementation of important projects
contained in the Hague Programme.
10. These fundamental differences concern
two related, but distinct, aspects: first, the extent of the legislative
competencies the EU have under the Third Pillar provisions of
the TEU and, secondly, the basic concept different member states
seem to subscribe to with regard to further EU police and criminal
justice co-operation. The difficulties in the legislative process
caused by these fundamental differences are exacerbated by the
EU's pillar structure and the differences in the legislative procedures
resulting from it. We believe, however, that these problems are
neither caused nor would they be solved by changes to the voting
conditions in the Third Pillar using the passerelle.
THE HAGUE
PROGRAMME AND
THE DEMISE
OF THE
CONSTITUTIONAL TREATY
11. As just described, the first of the
problems JUSTICE has identified as a major factor for the current
blockade in Council negotiations of important measures in the
area of police and judicial co-operation in criminal matters is
the issue of the extent of the EU's legislative competencies in
this area.
12. The UK's official primary concern about
the two legal instruments mentioned above is the alleged lack
of a sufficient legal basis in the EU Treaty for their adoption
as drafted by the Commission. Yet, the UK Government supported
the inclusion of the two instruments in the unanimously adopted
Hague Programme. Not only did the UK commit to the adoption of
a minimum set of procedural rights in criminal proceedings applicable
throughout the EU by the end of 2005, it went even further on
the issue of the approximation of laws by supporting the following
statement in the Hague Programme: "The European Council recalls
that the establishment of minimum rules concerning aspects of
procedural law is envisaged by the treaties in order to facilitate
mutual recognition of judgments and judicial decisions and police
and judicial cooperation in criminal matters having a cross-border
dimension."[90]
Now it is the UK's position that the Treaties would not
provide the legal basis for instruments that not only cover cross-border
cases but lead to an actual approximation of laws to provide the
backdrop for the application of the mutual recognition principle
in criminal justice co-operation. Such measures, it is argued
in Council negotiations also with regard to the Commission draft
of the Third Pillar Data Protection Framework Decision, could
only be adopted on the basis of the EU Constitutional Treaty,
the fate of which is all but certain after the negative Dutch
and French referenda in 2005.
13. JUSTICE finds the UK's change of heart
surprising. While the Hague Programme was intended to contribute
to preparing the EU for the entry into force of the Constitutional
Treaty in 2006, the measures envisaged in the Programme were not
intended to be dependent on the coming into force of the Treaty.
This is demonstrated by the deadline of 2005 member states laid
down for the adoption of the Procedural Rights Framework Decision
in the Hague Programme, clearly prior to the planned coming into
force of the Constitutional Treaty in the second half of 2006.
Yet, where a member state's only concern about an EU instrument
is the sufficiency of the legal basis in the TEU for its adoption
it would otherwise support, we think the most appropriate course
of action for this member state would be to actively participate
in the negotiations and, after the adoption of the instrument,
to bring an annulment action in the European Court of Justice
(ECJ) on the ground of lack of legal basis. The ECJ would then
be in a position to adjudicate upon the issue and authoritatively
clarify the legal position. We regret that this is not what the
UK and certain other member states seem to be prepared to do.
MEMBER STATES'
APPROACHES TO
EU POLICE AND
CRIMINAL JUSTICE
CO -OPERATION
AND THE HAGUE
PROGRAMME
14. The second, perhaps even more fundamental
issue which, we believe, contributes to the present near paralysis
in the Council, is a change in the basic attitude of some member
states to what the mechanisms of police and criminal justice co-operation
should be. This has become most evident in the negotiations of
the proposal for a European Evidence Warrant (EEW) and of a number
of proposals for improved cross-border police co-operation, such
as the draft Council Decision of 18 July 2005 on the improvement
of police cooperation between the member states of the European
Union (COM(2005) 317 final). In these negotiations, one of the
stumbling blocks seemed to be the extent to which mutual recognition
of domestic evidence warrants or the carrying out by member states'
police forces of cross-border hot pursuit and surveillance should
depend on the verification of dual criminality of the offence
to be investigated. Political agreement on the European Evidence
Warrant could only be reached after significant concessions were
made to Germany and the Netherlands on this issue. Over the draft
police co-operation measures, however, no such agreement seems
to have been reached yet.
15. The mutual recognition principle, which,
in broad terms, lies at the heart of both measures, does not appear
to enjoy the full support it once did when the Framework Decision
on the European Arrest Warrant, the "flagship" amongst
Third Pillar mutual recognition measures, was adopted in 2002.
The Finnish EU presidency's press release on the most recent informal
JHA ministers' meeting in Tampere between the 20 and 22 September
2006[91]
demonstrates this when it speaks of the recent difficulties which
the negotiation of mutual recognition instruments posed in the
Council. Some JHA experts JUSTICE has spoken to even go so far
as saying that the mutual recognition principle as a basis for
police and criminal justice co-operation is doomed.
16. The uncertain fate of the mutual
recognition programme, at least as originally envisaged by member
states in the 1999 Tampere conclusions and the Hague Programme,
and the failure of member states to make good the promises in
the Hague Programme to adopt certain rights-oriented instruments
leading to an approximation of member states' laws lead us to
believe that the initial momentum for the improvement of EU-wide
police and criminal justice co-operation as expressed in the Tampere
conclusions and the Hague Programme has been lost. It is thus
not surprising that the Chairman of the House of Lords EU Committee,
Lord Grenfell, in a letter to the Attorney General of 22 June
2006,[92]
wondered whether member states might want to reconsider more generally
the extent of judicial co-operation in criminal matters they now
wish to have and asked the question if member states were still
committed to the Hague Programme.
FRESH IMPULSES
FOR JHA—THE
"PASSERELLE": A
PANACEA?
17. Not surprisingly, in its Communication
of June 2006 the European Commission has noted that there is "an
urgent need to find a new impetus in the area of Freedom, Security
and Justice as part of an ambitious, policy-driven agenda for
citizens".[93]
JUSTICE shares this view. However, while the solution presented
by the Commission (the activation of the so-called passerelle)
might bring benefits to EU lawmaking in the Third Pillar, we have
doubts whether a change in the legislative procedure for the adoption
of instruments in the area of police and judicial co-operation
in criminal matters will provide the fundamental impulse needed
to regain sufficient momentum for the adoption of crucial instruments
strengthening the rights of EU citizens in the context of law
enforcement and criminal justice co-operation.
18. As presently envisaged by the Commission,
the use of art 42 TEU (the passerelle or bridging clause)
by unanimous Council decision and subsequent adoption through
member states' parliaments, where necessary, would, broadly speaking,
have the effect of ending the unanimity requirement for the adoption
of criminal justice co-operation instruments in the Council by
introducing qualified majority voting (QMV), which already applies
in the other JHA areas, such as civil justice and asylum and immigration.
Member states' veto power would thus be abolished in most, if
not all, areas of the Third Pillar. The role of the European Parliament
would be significantly strengthened: while presently the Parliament
plays only a consultative role in police and criminal justice
legislation, it is expected that it would be given the power to
block measures under what is called the co-decision procedure.
Again, this would align the legislative process in the Third Pillar
to that in the First Pillar JHA areas. The ECJ would also be given
a more significant role in the Third Pillar in that the preliminary
reference procedure under the TEC would be made generally applicable
to the Third Pillar without the need of an additional declaration
by member states (which the UK, amongst other member states, has,
so far, withheld). We believe that it is fair to say, as the
Commission does,[94]
that this application of the "Community method" (as
opposed to the current Third Pillar "Union method")
to the Third Pillar would bring greater transparency and certainly
more democratic accountability to EU legislation in the Third
Pillar.
19. Yet, member states' veto power can both
be a blessing and a curse. Depending on how this veto power is
used by member states, it can prevent ill-conceived measures from
being adopted without making adequate modifications and providing
appropriate safeguards for fundamental rights, as was shown in
the Council negotiations on the EEW. Then again, other, most welcome
measures may be blocked by even a single member state exercising
its veto. JUSTICE believes that police and criminal justice
co-operation is a very sensitive area where neither the current
lowest common denominator approach nor blind majority activism
are the most appropriate courses of action. Abolition of the veto
power should therefore be considered with greatest care.
20. However, we consider it important to
point out that the effect of a change from unanimity to QMV in
the Third Pillar would be least felt by the UK as it enjoys an
opt-in right to JHA co-operation measures governed by the TEC
under a protocol to that Treaty. Thus, the UK would only ever
be bound by a European criminal justice instrument adopted by
QMV where it decides to be so bound.
21. We wonder, however, whether the use
of the passerelle would bring to an end the trend in criminal
justice co-operation, and even more so in the area of police and
security agency co-operation, of fragmented bilateral or multilateral
co-operation between member states outside the frame of the EU.
The most prominent example of this trend is, of course, the 2005
Prüm Convention or Schengen III, a treaty on improved police
co-operation and information exchange between law enforcement
agencies between Austria, Belgium, France, Germany, Luxembourg,
the Netherlands and Spain. We doubt that even the introduction
of QMV will prevent Europe from becoming an area of security and
justice of multiple paces. Reaching agreement on co-operation
instruments between two or more member states will still be significantly
easier than reaching it in Council even under QMV.
22. As already hinted at at para 10 of our
evidence, JUSTICE believes that the current problems with implementing
the police and criminal justice measures envisaged in the Hague
Programme go beyond simple issues of voting conditions in the
EU Council. They will only partly be solved by moving away from
the unanimity principle in the Third Pillar. Rather, what seems
to be needed is an open discourse between member states, the European
Parliament and the European public to reach a new consensus on
the direction and principles for the future development of EU
police and criminal justice co-operation. A chance for starting
such an open dialogue seems to have been missed at the most recent
programmatic informal JHA ministers' meeting in Tampere this September.
We can only urge the Committee to press the UK Government to seek
and actively engage in such a dialogue.
Maik Martin
Legal Officer
2 October 2006
89 At para 2.6. Back
90
At para 3.3.2. Back
91
http://www.eu2006.fi/news_and_documents/press_releases/vko38/en_GB/168727/ Back
92
http://www.parliament.uk/documents/upload/HLSubE912806ltr220606.pdfsearch=%22grenfell%20attorney%20general%2022%20june%202006%22 Back
93
COM(2006) 331 final, at para 1. Back
94
At para 3.2. Back
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