11. Memorandum submitted by the Law
Society
INTRODUCTION AND
GENERAL REMARKS
1. The Law Society ("the Society")
regulates and represents solicitors in England and Wales. This
response is from the representation arm of the Law Society which
represents the views and interests of solicitors in commenting
on proposals for better law and law making procedures in both
the domestic and European arenas.
2. The Society welcomes the opportunity
to give views on the Communication on "Implementing The
Hague Programme: the way forward" (COM 2006 331 Final)
and the question of the implementation of the "passerelle"
clause as set down in article 42 of the Treaty on European Union.
The Law Society broadly supports the proposal to activate the
passerelle procedure under article 42 and can see a number of
benefits to such a move. Including reinforced democratic scrutiny,
effective judicial oversight and clarity and coherence in the
development of law and policy in this area.
3. It is noted that the European Council
in June 2006 called upon the (then) incoming Finnish Presidency
to "explore, in close collaboration with the Commission,
the possibilities of improving decision-making and action in the
area of Freedom, Security and Justice on the basis of existing
treaties". Indeed this issue was one of the key items of
debate at the informal Justice and Home Affairs Council in Tampere
20-22 September.
USE OF
THE PASSERELLE
PROCEDURE
4. The Society has previously considered
the question of the transfer of police and judicial co-operation
in criminal matters from the third pillar to the first pillar
during the debates on the Convention on the Future of Europe and
the Constitutional Treaty. The Society expressed concern that
the creation of a pillar structure in the European Union had allowed
certain areas of European activity, notably Justice and Home Affairs,
to develop outside a framework of democratic accountability and
judicial control. The Society therefore offered strong support
for the fusion of the pillar structure. A response was also submitted
to a recent House of Lords European Select Committee inquiry in
relation to the question of the criminal law competence of the
European Union.
5. The Society considers that that the full
incorporation of the Justice and Home Affairs pillar into the
Community structure offers the best guarantees that rights and
freedoms that are in the interests of individuals will be balanced
against the security concerns of the Member States. Europe's Justice
and Home Affairs policy must be based on due process and must
protect the individual's rights as well as facilitate cross-border
law enforcement. It is essential that the principles of transparency
and democratic accountability be at the core of all developments
in the Union, be it legislation, policy or practice.
6. It is for these very reasons that the
Society could support any move to invoke the passerelle procedure
under article 42 of the Treaty on European Union. We agree that
this would improve decision-taking and accountability in the area
of police and judicial co-operation. We accept the argument that
it could also serve as a mechanism through which to speed up the
decision-making process—but we also note that this may not
actually be the case if the co-decision procedure involves a number
of parliamentary readings and results in a conciliation procedure.
7. We note that the provisions of article
42 state that the Council would determine the "relevant voting
conditions relating to" any transfer of policy, thus leaving
the Council the possibility of retaining unanimity in certain
areas. This reflects the situation as regard civil judicial co-operation
where unanimity voting has been reserved for family law matters.
We do not wish to state whether, as a rule, qualified majority
voting or unanimity would be preferable but would like to offer
the following examples to reflect the two sides of the argument.
8. Limiting the use of national veto and
putting an end to blocking tactics currently employed on certain
proposals could be a beneficial outcome of any transfer of competence.
For example, the Society regrets that the draft Framework Decision
on certain procedural rights in criminal matters has been held
hostage to national veto and notes that this is one of a number
of proposals that might benefit from a process of qualified majority
voting.
9. However, on the other hand, the concern
is that without unanimity voting certain more repressive proposals
may be adopted, not withstanding the concerns of some Member States.
We would refer here to the political debate surrounding the framework
decision, now Directive, on data retention for law enforcement
purposes upon which some Member States expressed concerns in relation
to the rights of the individual. Reference can also be made to
the European Evidence Warrant, the subject of recent political
agreement, which might have been very different in substance and
scope were it not for unanimity voting. We also have concerns
that proposals vehemently opposed by certain Member States would
also be pushed through, for example the European Public Prosecutor.
10. The voting mechanism will no doubt be
the topic of lengthy debate. It is possible that the "emergency
brake procedure" as envisaged under the Constitutional Treaty
could be an option. This would be supported.
11. Another question specific to the position
of the United Kingdom and Ireland would be in relation to the
Protocol to the Treaty of Amsterdam and the right to exercise
an "opt-in" in relation to matters under Title IV of
the Treaty establishing the European Community, notably asylum,
immigration and judicial co-operation in civil matters. Denmark
would similarly be affected by their decision to remain outside
the scope of all measures in this area.
12. The question would be whether by exercising
the passerelle clause and introducing police and criminal matters
into Title IV this right of "opt-in" would extend to
legislative proposals relating to police and judicial co-operation
in criminal matters. Whilst this may serve as a tool by which
to protect national interests it could be regarded as a step backwards
in terms of a coherent approach to the development of an area
of freedom, security and justice.
COMMUNITY METHOD
AND CRIMINAL
LAW MATTERS
13. Notwithstanding the voting procedures
to be assigned to matters in this area, if the passerelle procedure
were to be invoked and police and judicial co-operation in criminal
matters were to be subject to the "standard" Community
method the Society would see a number of benefits to this; sole
right of initiative of the European Commission, co-decision with
the European Parliament and full jurisdiction of the European
Court of Justice.
14. The Society supports a sole right of
initiative for the European Commission in the area of police and
judicial co-operation in criminal matters, removing the Member
State right of initiative. By giving the European Commission the
sole right of initiative in this area the development of the "area
of freedom, security and justice" is more likely to be undertaken
in a co-ordinated and coherent manner. Both by taking into account
other relevant Community policies such as those arising in fields
of activity like social policy, equality policy or external relations,
and in terms of achieving a better balance between freedom, security
and justice. In our view the balance between the different elements
in this mix is crucial. To date, Europe has found itself developing
too far in the direction of an "area of security" with
freedom and justice lagging far behind.
15. Moreover limiting the rights of the
Member States to bring forward legislative proposals should put
an end to proposals based on purely domestic priorities and prevent
knee jerk political reactions to the latest justice crises. Such
initiatives have often hampered the creation of a long term strategy
for Justice and Home Affairs at a European level and have led
to activity without continuity and, on occasion, contradictory
outcomes. In our view, the European Commission is a better guarantor
of the development of coherent policy in this crucial area. We
do not see any necessity for the continuation of a shared right
of initiative as the experience to date does not appear to have
yielded particularly positive results.
16. Furthermore, unlike the Member States,
the Commission has the explicit role of "guardian of the
treaties" and can be held to account both by the European
Parliament and European Court of Justice if it fails to give due
weight to the rights of individuals as set out at a European level.
This role also gives the European Commission the important responsibility
of holding the Member States to account should they fail in their
obligations or commitments. 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 European Union action. For
example the delays and differences in the implementation of the
European Arrest Warrant lead to a two-tier extradition system
for over a year. The European Commission is currently seeking
to develop evaluation and monitoring mechanisms as regards the
implementation of third pillar instruments but this is a weak
initiative compared to real enforcement power with oversight of
the European Court of Justice.
17. Using the passerelle procedure to bring
the third pillar into the Community structure would also alter
the respective roles of the European Parliament and European Court
of Justice and this would be a welcome development.
18. Involving the European Parliament as
a key partner enjoying the right of co-decision would go someway
to remedying the democratic deficit that exists to date and improve
accountability and transparency. Notwithstanding the debate as
to the low levels of participation in European Parliamentary elections,
it is the Society's view that as the only democratically elected
EU institution it remains the best place in which to conduct an
open debate about the decisions that are to be taken. We believe
that it is important that developments in European Justice and
Home Affairs policy that affects individuals and their fundamental
rights are properly debated and seen to be based on more than
political compromises sealed behind closed doors. Moreover, we
are confident that the European Parliament will be an effective
player in ensuring the balance between security, freedom and rights
and we consider that it could provide a positive counterbalance
to the "lowest common denominator" decisions taken by
the Council of Ministers.
19. We also consider that the European Parliament
is the best placed institution to provide oversight and public
scrutiny of the actions of other institutions involved in European
Justice and Home Affairs, notably Europol and Eurojust. The Society
is concerned that these institutions, particularly Europol have
been created outside the normal institutional framework. This
leaves them in an accountability "limbo"—they
are neither scrutinised fully by the European Parliament, nor
are they accountable for their activities in the European Court
of Justice.
20. The European Court of Justice would
also take on a new role under a unified first and third pillar
arrangement. The court's jurisdiction is currently limited to
preliminary rulings in relation to those Member States who have
chosen to confer jurisdiction on it (article 35 Treaty on European
Union). The European Court of Justice would be given a similar
scope of action to that which it has under the First Pillar. One
of the major guarantees of proper institutional accountability
is the possibility for judicial review of both the legislation
passed on police and criminal matters and its implementation.
Enhancing the role of the European Court of Justice should facilitate
consistency, clarity and legal certainty.
PROPORTIONALITY,
SUBSIDIARITY AND
EFFECTIVE LAW
MAKING
21. The Society continues to support the
main principles of European decision-making elaborated over the
last 20 years: subsidiarity, proportionality and transparency.
Whilst supporting the transfer of police and judicial co-operation
in criminal matters to the first pillar, and having noted the
number of benefits that this would bring, we would like to reinforce
the need for the principles of subsidiary and proportionality
to be paramount in all actions in this area.
22. The creation of an area of freedom,
security and justice is an ambitious project, one that must be
developed step-by-step and with an acute awareness of the different
legal traditions and jurisprudential heritage of each and every
Member State. The use of the passerelle procedure should not be
an excuse to expand Community competence or to promote harmonisation
over approximation. We would recall the provisions of the Constitutional
Treaty which state that: "the Union shall constitute an area
of freedom, security and justice with respect for fundamental
rights and the different legal systems and traditions of the Member
States".
23. As regards effective law making, the
Society considers that were the European Commission to gain the
sole right of initiative the process of developing legislation
needs to be improved. Whilst the Hague Programme and the Tampere
Conclusions do set out the broad policy objectives and the political
commitments in this area we are concerned that the initiatives
identified then become set in stone regardless of the results
of any full impact assessment or consultation. Although noting
that the European Commission is under the instructions of the
European Council (or a Justice and Home Affairs Council) in bringing
forward the initiatives, it does sometimes appear that the action
plans are blindly adhered to regardless of any subsequent in-depth
discussion or consultation.
24. The Green Paper on conflicts of jurisdiction
and ne bis in idem is one such example. The European Commission
fulfilled its instructions to conduct a consultation in this area
and produced a Green Paper. This was followed by an experts meeting.
This meeting included Member States and independent stakeholders
and the majority concluded there was little need for such EU level
action. An impact assessment is currently taking place. In the
meantime however a framework decision is being drafted, seemingly
regardless of the impact assessment and public consultation, because
the Hague Programme Action Plan stated December 2006 as the deadline.
The principles of better law making and better regulation developing
at EU level need to be firmly embedded in the development of an
area of freedom, security and justice.
Julia Bateman
Justice and Home Affairs Policy Advisor
2 October 2006
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