Select Committee on Home Affairs Written Evidence

16.  Memorandum submitted by Open Europe


  1.  Open Europe is an independent think tank set up by some of the UK's leading business people to contribute new thinking to the debate about the future of the EU. Open Europe believes that the EU must embrace radical reform based on economic liberalisation, a looser and more flexible structure, and greater transparency and accountability if it is to succeed in the 21st century.


  2.  The EU Commission has proposed that member states should agree to use the passerelle or "bridging" clause in the current treaties[112]. If utilised it would mean that criminal justice and policing would for the first time become a community competence. This decision would be likely to abolish the national veto and would greatly increase the powers of both the EU Commission and European Court of Justice (ECJ) over a sensitive area of national policy.

  3.  We believe that the proposal represents a significant shift of power from the national to the European level, over a key area of policy. It is an area in which the UK Government has been reluctant to cede control to Brussels in the past and we believe that it should block these proposals now. Majority voting would present particular problems for common law countries such as the UK and Ireland which are likely to find themselves in a minority and therefore unable to block new laws which could cause problems for their legal systems.

  4.  If the passerelle clause is used it would mean that for the first time in the UK's history criminal laws would be passed through parliament as secondary legislation, and would not receive full parliamentary scrutiny, as they will be implementing EU legislation.

  5.  In this paper we argue that the UK's opt-in clause is not as effective a safeguard as the veto. We also argue that the UK's opt-in is seriously undermined by an ECJ ruling from September 2005 (Case C-176/03).

  6.  If EU ministers agree to the Commission's request the EU would gain even more significant powers over criminal justice than it would have been given under the EU Constitution. As the Government has acknowledged, the European Commission would gain the sole right to propose new legislation, whereas under the Constitution the right of initiative would have been shared. The proposal would also sweep away some of the safeguards written into the Constitution, such as the "emergency brake" procedure, and the restrictions relating to the EU acting only on "serious crimes with a cross-border dimension".

  7.  One of the European Commission's central objectives for using the passerelle clause is to be able to push through measures which are currently being blocked in the European Council. We look at two of these, the proposal to harmonise rights for suspects in custody, and the proposal to harmonise criminal offences for racism and xenophobia across the EU, both of which we argue could pose particular problems for the UK.

  8.  If the passerelle clause is used the European Court of Justice would gain jurisdiction over criminal law, which could create practical problems. It often takes up to two years for the ECJ to give its interpretation of a particular case. If it started ruling on criminal cases national governments could be forced to hold suspects in custody for up to two years before a final ruling is given.

  9.  Using the passerelle would also give the EU external competence over criminal justice and policing which would mean that the EU would begin to negotiate extradition treaties on the UK's behalf and could even begin to assume control over deportation agreements.


 (a)   The "opt-in" is not an effective safeguard

  10.  Legal experts have warned that a ruling by the European Court of Justice in September 2005 (Case C-176/03) will undermine the UK's opt-in arrangement. As a result of the case the EU is able to propose criminal sanctions in all areas of "Community competence". When it does so, the UK has no "opt-in" arrangement, and would therefore have to participate in any criminal justice measure that the Commission feels is necessary to "ensure the full effectiveness of a Community policy".[113]

  11.  Richard Plender QC, who represented the UK in the case in question, told us that the ruling would create "a problem" for the UK when attempting to use its opt-in as "There is no opt-in or opt-out under this judgment".[114]

  12.  The Court's ruling considerably widens the scope of EC criminal action and allows EU laws to prescribe criminal offences and penalties in a much greater level of detail. [115]

  13.  This was a dramatic and unexpected ruling—but its impact is currently limited, by the scope of community competence. For example, the Commission can propose criminal legislation for environmental crimes, which are under its competence, but not criminal laws in general, as criminal law in general, is not in its competence.

  14.  However, if it is used in full, article 42 TEU would transfer much of criminal justice and police cooperation into the first pillar, making them community competences. It has been argued that only limited sections of criminal justice would be transferred across: the Government argues that article 31(e) TEU only allows the EU to harmonise criminal offences and penalties in the fields of organised crime, terrorism and illicit drug trafficking. However, the decision will move across all of Articles 29 to 32—covering such open-ended concepts as "ensuring compatibility in rules applicable in the member states" and "preventing conflicts of jurisdiction between member states."

  15.  Furthermore, in its communication "Implementing the Hague programme: the way forward" the Commission specifically stated that it wanted to harmonise crimes of racism and xenophobia if and when article 42 TEU is used[116]. This proposal clearly does not fall into the categories mentioned in article 31(e), which suggests that if the passerelle clause were used the EU would gain competence over a large part of the criminal justice field.

  16.  Thus if ministers agree to use the passerelle clause the EU will be able to determine offences, penalties and other "appropriate measures" across all areas of criminal justice where it has competence, which would not be subject to the opt-in procedure and would ultimately be interpreted by the ECJ, not national courts.

  17.  Even without the court ruling, 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.

  18.  The UK and Ireland would also be bound by any future amendments to that legislation. This is particularly significant given that many EU measures, particularly if controversial, have clauses which call for a review of the legislation in several years time. For example, the current wrangles over the EU Commission's attempt to abolish the UK's opt-out from the Working Time Directive were started because of a 10-year revision clause.

  19.  Ireland is the only other EU country which has an opt-in procedure apart from the UK. In evidence to the House of Lords Irish Justice Minister Michael McDowell cast doubt on the claim that the opt-in was like a veto.

  20.   "I am not clear that the opt-in power gives us effectively the same outcome—it may or may not. Politically obviously opt-in means that the other Member States will go and be able to do their own thing, so to speak, and politically that may be more difficult to resist and more difficult to resist an opt-in rather than a unanimity requirement, and that depends on the politics of any issue at the time it comes to be decided." [117]

 (b)   Going even further than the EU Constitution

  21.  If EU ministers agree to use the passerelle clause they would be accepting a shift of power over criminal justice which is even more radical than that contained in the EU Constitution.

  22.  It would give the EU Commission the sole right of initiative over criminal justice. Under the Constitution this right would have been shared between the member states and the Commission.

  23.  Giving the EU Commission the sole right of initiative could lead to a reduction in the flexibility and effectiveness of actions in this area. Criminal justice policy is generally conducted in a reactive manner, responding to new issues as they happen and troubleshooting problems with existing legislation as they become apparent.

  24.  National governments are clearly best placed to be able to respond to new issues as and when they crop up. In recent years the "big 6" member states have taken the lead in responding to security incidents such as the 7/7 London bombings, and the recent alleged plot to blow up planes on route to the United States. If member states lost the right of initiative their ability to respond and push new measures through quickly would be severely curtailed.

  25.  Under the Constitution the EU would only have been able to harmonise criminal penalties and offences for a limited number of "serious crimes with a cross-border dimension" but there would be no such restriction if the passerelle clause is used. [118]

  26.  Unlike under the Constitution there would be no "emergency brake" procedure available to member states if the passerelle is used. The emergency brake would have allowed member states to halt negotiations on a proposal if it thought it "would affect fundamental aspects of its criminal justice system." [119]

 (c)   Enabling the EU to push through controversial laws which are currently being blocked

  27.  One of the EU Commission's central reasons for wanting to use the passerelle clause is so that measures which are being blocked can be pushed through in the European Council. Several of the measures which it wants to pass are extremely controversial and could cause particular problems in the UK.

  28.  One proposed measure attempts to harmonise rights for suspects in custody across the EU. [120]If passed, every suspect across Europe would be handed a "Letter of Rights" once arrested, which they are granted by "European Union law". The House of Lords EU Select Committee has warned that if this proposal is passed it could become impossible to stop the "creeping competence" of the Commission, and could lead to the "incremental unification of criminal procedure throughout the EU." [121]

  29.  Another proposed measure criminalising racism and xenophobia could overturn amendments made to the recent Bill on Religious Hatred. After a campaign led by the comedian Rowan Atkinson, an amendment was passed which safeguarded comedians from prosecution for insulting behaviour. The EU Commission's proposal could possibly overturn this amendment because it outlaws "public insults". If a dispute arose, it would fall to European judges to ultimately interpret the law.

 (d)   Increasing the powers of the European Court of Justice

  30.  Using the bridging clause would hugely increase the role of the European Court of Justice over member state's criminal law. For the first time the Court would have full jurisdiction over criminal law, something which has long been resisted by successive UK Governments. The ECJ would become the highest court in the UK's criminal law system and would begin to determine the substantive criminal law for EU nations.

  31.  Apart from anything else this could create practical problems. It often takes up to two years for the ECJ to give its interpretation of a particular case. If it started ruling on criminal cases national governments could be forced to hold suspects in custody for up to two years before a final ruling is given.

 (e)   Giving the EU exclusive "external competence" over criminal justice

  32.  As the EU legislates in particular areas it gains external competence over them. This means that it begins to represent member states in international negotiations on these issues.

  33.  If EU ministers agree to use the bridging clause in the treaties and transfer criminal justice into the first pillar the UK will lose its right to negotiate bilateral extradition treaties with foreign countries. The EU might also gain competence over member states' deportation agreements with third countries. This could have serious consequences for the UK's ability to negotiate robust deportation agreements for terror suspects with non-EU countries.

Paul Stephenson

1 October 2006

112   Article 42 TEU. Back

113   For more details see "Communication from the Commission to the European Parliament and the Council on the implications of the Court's judgment of 13 September 2005 (Case C-176/03) Commission v Council". Back

114   Interview, 7 September. Back

115   In its communication on the implications of Case C-176/03 the Commission states that the ruling gives it the ability to set: "the definition of the offence-that is, the constituent element of the offence-and, where appropriate the nature and level of the criminal penalties applicable, or other aspects relating to criminal law ... it is necessary to direct the action of the Member States by specifying explicitly (i) the type of behaviour which constitutes a criminal offence and/or (ii) the type of penalties to be applied and/or (iii) other criminal-law measures appropriate to the area concerned." Back

116   The Commission wants to pass the proposal for a Framework Decision on combating racism and xenophobia which is currently blocked in the Council. Back

117   "The Criminal Law Competence of the European Community", House of Lords EU Select Committee, Q 187, July 2006. Back

118   Article III-271(1) Treaty Establishing a Constitution for Europe. Back

119   Article III-271(3) Treaty Establishing a Constitution for Europe. Back

120   Framework decision on certain procedural rights in criminal proceedings throughout the European Union. Back

121   EU Committee, 1st Report, Procedural Right in Criminal Proceedings, 7 February 2005. Back

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