Select Committee on Home Affairs Written Evidence

11.  Memorandum submitted by the Law Society


  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.


  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.


  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.


  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

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2007
Prepared 5 June 2007