1 Introduction |
The Committee's inquiry
1. On 2 April 2009, we announced a wide-ranging
inquiry into justice issues in Europe with a particular focus
on developments and the implications for the 2.2 million British
citizens living in other member states and 2.12 million people
living in the UK who were born in another member state. The inquiry,
timed to coincide with the development of a new five-year programme
for justice and home affairs known as the "Stockholm programme",
enabled us to take stock of progress to date and look at key upcoming
priorities and challenges for the UK Government as the programme
is implemented. The entry into force of the Treaty of Lisbon on
1 December 2009 in the midst of our deliberations has
allowed us to consider the programme in the context of other changes
in decision-making and in the EU institutional landscape in the
2. The House of Lords European Union Committee
considered the implications of the Lisbon Treaty in considerable
depth in its report, The Treaty of Lisbon: an impact assessment,
in March 2008, which includes a substantial section on the impact
of the "controversial changes" in the area of justice,
freedom and security.
The House of Lords EU Sub-Committee F has also examined the home
affairs provisions in the draft Stockholm programme. Individual
EU proposals in this field will be subject to full scrutiny by
the relevant sub-committees of the Lords Committee and the House
of Commons European Scrutiny Committee. During the course of the
inquiry we received 16 memoranda and took oral evidence on seven
occasions, including from the Director General of Justice, Freedom
and Security at the European Commission while visiting Brussels
on 7 December 2009. On that day we also held informal meetings
with the European Data Protection Supervisor, and representatives
from the Law Society Brussels Office, the Swedish representation
to the EU, and the Legal Affairs and Constitutional Affairs Committees
of the European Parliament.
Ten years since Tampere
3. The 1997 Treaty of Amsterdam, which entered
into force in 1999, created an EU area of freedom, security and
justice. The first five-year policy framework for activity in
these fields, "the Tampere programme", was agreed in
the same year and sought to build such an area, for example, by
providing better access to justice; mutual recognition of judicial
decisions; and greater convergence in civil law. The second such
initiative, "the Hague programme", ran until December
2009 and was aimed at: enhancing fundamental rights and citizenship;
fighting against terrorism; developing a common immigration policy;
management of external borders and a common visa policy; developing
a common asylum area; enhancing privacy and security in sharing
information; developing a strategy to tackle organised crime at
EU level, for example through Europol and Eurojust; and promoting
effective access to civil and criminal justice.
4. The reasons and objectives behind the creation
of an area of freedom, security and justice have been a matter
of debate from the time of negotiations over the Treaty of Amsterdam.
In evidence to the House of Lords EU Committee leading to its
report, The Treaty of Lisbon: an impact assessment, some
witnesses said that co-operation in the fields of asylum, immigration,
civil and criminal law and policing was not undertaken as an aim
in itself but was necessary to, as well as being the result of,
the development of the internal market, which resulted in free
movement and the creation of a "common space".
In the criminal sphere, it has been claimed that cooperation at
EU level was necessary to ensure that individuals did not escape
prosecution simply by exercising their right to free movement
across the European Union member states.
5. The area of freedom, security and justice
is still very much a "work in progress".
In devising the priorities for the next five-year programme, known
as the Stockholm programme, member states and the European Commission
have had the opportunity to focus on what has been achieved and
shape the direction of future activity in this area. The Government
was broadly supportive of the Stockholm programme during its negotiation.
It set out its response to the Commission's initial proposals
in September 2009.
6. Much of the policy and legislation in the
field of justice relies on mutual trust, i.e. that member states
usually comply with rules and decisions because it is in generally
in their self-interest and trust the other states to do the same.
Although the concept of mutual trust is "relatively simple"
to grasp, it is difficult to achieve in practice.
There are fundamental differences between common law systems and
those prevalent in most EU member states and differences in the
role of judges. The
main thrust of developments to date has been towards increasing
member states' co-operation on bringing to justice more effectively
those convicted or suspected of criminal activity by recognising
and comparing differing practice across the core components of
criminal justice and prosecution processes.
For example, Eurojust and the European judicial networks create
opportunities for legal co-operation and co-ordination of international
investigations and prosecution across the EU. Member states have
also agreed several mutual recognition instruments. While these
have been implemented with varying degrees of success, alternative
approaches to aligning practices, for example by harmonising laws,
are undoubtedly more complex and more politically contentious
and thus far harder to put into practice. Witnesses drew our attention
to the success of the European arrest warrant and the exchange
of criminal records across jurisdictions.
The concept of mutual recognition and some of the resulting cooperation
instruments are discussed further below.
7. One of the notable shortcomings of the Hague
programme was the failure to agree measures to protect the fundamental
rights of suspects and defendants who find themselves caught up
in these strengthened processes. Mr Jonathan Faull, Director General
of Justice and Home Affairs at the European Commission, made it
clear that some degree of slippage was inevitable due to: "subsequent
events and shifting priorities and the difficulty in making headway
in some of these areas."
For example, he explained that the differences between legal systems
have become more complex as the European Union has grown and these
would undoubtedly continue to complicate policy-making in this
area; an incremental approach was therefore necessary. In addition,
the implementation of the programme may have encountered difficulties
as it had presumed the existence of a European constitution.
THE STOCKHOLM PROGRAMME
8. The Stockholm programme, subtitled "an
open and secure Europe serving and protecting the citizen",
was adopted by the European Parliament in December 2009. The key
proposals are summarised in box 1.
|Box 1Summary of justice priorities for 2010-2014
Promoting citizenship and fundamental rights
- Producing a proposal on the accession of the EU to the European Convention on Human Rights as a matter of urgency
- Providing practice support and advice to ensure that existing legislation is properly applied to tackle potential discrimination
- Devising a strategy to ensure that an integrated and coordinated approach is provided to victims of crime, if necessary by creating one comprehensive legal instrument on the protection of victims
- Implementing the "road map" for strengthening procedural rights of suspected and accused persons in criminal proceedings as quickly as possible
- Establishing a comprehensive data protection scheme, following an evaluation of existing instruments, taking into account technological developments, the need to improve compliance and the need to raise public awareness of data protection issues
A Europe of law and justice
- Integrating e-justice into all areas of civil, criminal and administrative law to ensure better access to justice and strengthened cooperation between administrative and judicial authorities.
- Adopting instruments that are more "user-friendly"
- Offering special protection measures to victims of crime or witnesses
- Setting up a comprehensive system for obtaining evidence in cases with a cross-border dimension
- Exploring the results of the evaluation of the European arrest warrant
- Examining whether the existing level of approximation between member states is sufficient and considering whether there is a need to establish common definitions and penalties
A Europe that protects
- Adopting and implementing an EU information management strategy that includes a strong data protection regime
- Extending the use of, and cooperation between, EU law enforcement institutions
Improving the quality of legislation and its implementation
- Paying increased attention to the full and effective implementation, enforcement and evaluation of existing instruments
- Responding faster to the needs of citizens and practitioners where appropriate, for example, by sharing best practice, producing guidance and networking, rather than resorting to legislation
- Preparing impact assessments to identify the level of need for, and financial implications of, new legislative initiatives
- Conducting a horizontal review of existing instruments to improve consistency and consolidate legislation where appropriate
- Undertaking objective and impartial evaluation of the implementation of policies, including follow-up evaluation, beginning with judicial cooperation in criminal matters
9. We have concentrated our attention on matters related to
the establishment of mutual trust as the cornerstone of judicial
co-operation and the extent to which it is possible to strike
a balance between this and the fundamental rights of EU citizensin
particular UK citizensincluding the right to privacy (data
protection) and procedural rights. In doing so we have considered
key themes which emanate from the evaluation of the Hague programme
and the subsequent negotiations on the content of the Stockholm
- The need to strike balances between proportionality, the rights
of suspects and the accused in criminal proceedings, and the enforcement
of security at EU and national level through mutual co-operation.
- The balance between basic principles of justice and fairness
for victims and the rights of suspects and defendants rights and
levels of awareness of those rights
- The cost-benefits of activity to create an area of freedom,
security and justice
- The extent of monitoring and evaluation and the relative lack
We also recognise that the economic situation is bound to have
an impact on the political environment which will underpin activity
in this field over the next 5 years.
10. In exploring these themes we focus on those criminal justice
issues of most concern to our witnesses. As Mr Faull noted, progress
to date has been more significant in some aspects of civil law.
The key proposals we consider include development of the e-justice
portal; improved support to crime victims; the introduction of
a legal framework on minimum procedural guarantees for suspects
and defendants; and a strategy to ensure that information exchanged
between criminal justice agencies is reliable and of high quality.
The Government particularly welcomes the commitments to particular
criminal justice measures: implementing the "road map"
on criminal procedural rights; development of an information model;
adoption of a child protection agenda; and establishment of mechanisms
for collecting information on convictions.
It also supports proposals to improve the evaluation and implementation
of existing instruments through the sharing of best practice.
11. The Stockholm programme was developed in 'Lisbon neutral'
terms but in the event the Lisbon Treaty entered into force at
the time the programme was agreed. An action plan, providing a
clearer indication of precise measures for implementation under
the Stockholm programme is expected to be agreed by June.
12. We are beginning to see
progress in the development of a more comprehensive system of
cooperation in the administration of justice between member states,
although the Hague programme undoubtedly underachieved its declared
objectives. While we consider the Stockholm programme to be less
ambitious, and more realistic than its predecessors, which we
welcome, the complexity of arrangements under the Lisbon Treaty
potentially gives rise to new challenges for the programme's implementation.
The Lisbon Treaty
13. From the entry into force of the Maastricht
Treaty, or the Treaty of the European Union as it is officially
known, in 1993 until the Lisbon Treaty came into effect on 1 December
2009, the European Union legally consisted of three pillars. The
first pillar, known as European Communities, covered the economic,
social and environmental policies which provided the foundation
of the EU and operated primarily on the basis of "ordinary
legislative procedure", i.e. co-decision between the European
Parliament and the Council of Ministers (also known as the Council
of the European Union)
and qualified majority voting within the Council.
14. Unlike the first pillar, the second and third
pillars, which dealt with Common Foreign and Security Policy and
Justice and Home Affairs respectively, were intergovernmental
in nature and agreement was by unanimity. The Maastricht Treaty
thus introduced member state co-operation in justice and home
affairs matters for the first time. Measures adopted within the
framework of justice and home affairs required unanimity in the
Council of Ministers, and the European Parliament provided only
a limited consultative role. The Treaty of Amsterdam moved immigration
and asylum measures, border controls and the areas of civil and
family law from the third pillar to the first pillar. The third
pillar was then renamed "Police and Judicial Cooperation
in Criminal Matters".
15. The Treaty of Lisbon effectively unites
the pillars and brings police and judicial cooperation in criminal
matters into the general structure of the European Union. In summary,
the European Council (composed of the leaders of the member states)
becomes a formal EU institution, driving forward the activities
of the EU and defining its political goals. Almost all justice
and home affairs will now be determined by the ordinary legislative
procedure described above, subject to transitional and, in the
case of the UK, opt-in arrangements.
Third pillar proposals which were not adopted by 30 November 2009
must be proposed again from scratch under the new procedure, whereby
new measures will take the form of regulations and directives,
subject to the normal effect of EU law. Policing and criminal
law will gradually come within the normal jurisdiction of the
European Court of Justice, enabling in particular, references
on the validity and interpretation of EU measures in this area
from all courts and tribunals in all member states, and the power
of the Commission to sue member states for infringement of such
laws. We discuss some of the implications of these changes in
more detail below.
The UK opt-in protocol
16. During the settlement of the Amsterdam Treaty
in 1997, the UK negotiated "opt-ins" to allow it to
decide on an individual basis whether to participate in specific
proposals under the first pillar. An opt-out was not required
for proposals under the third pillar because the need for unanimity
meant the UK could refuse to agree to a proposal thereby ensuring
it was not passed. Under the Treaty of Lisbon, the UKand
Irelandsecured a more extensive opt-in arrangement
which gives Government the right to choose whether to opt in to
each proposed measure in the field of freedom, security and justice.
The emergency brake
17. The Treaty also introduces the option for
any member state to pull an 'emergency brake' for some of these
matters, where it considers that the draft legislation "would
affect fundamental aspects of its criminal justice system".
Valsamis Mitsilegas, Professor of Law at Queen Mary University
of London, explained that this will enable member states to ensure
that they do not take part in a particular measure, while allowing
those in favour to proceed with its adoption.
For some potential provisions, for example, the European public
prosecutor, the UK (and other member states) will thus have what
Lord Bach, Parliamentary Under Secretary of State for Justice,
described as a "double lock" where there is a requirement
for both unanimity and opt-in.
The emergency brake procedure is not, however, available, for
the areas of judicial co-operation that come under Article 82(1)
i.e. measures which facilitate mutual recognition of judgments;
prevent and settle conflicts of jurisdiction; support the training
of the judiciary and its staff; and, facilitate cooperation between
judicial authorities on criminal proceedings and enforcement of
The Court of Justice
18. The Court of Justice is required to ensure
the equal application of EU law across member states, as well
as being responsible for interpreting that law. Under the pre-Lisbon
arrangements the Court, which was then known as the Court of Justice
of the European Communities, had only a limited jurisdiction over
third pillar measures. The entry into force of the Treaty of Lisbon
brings the whole area of justice and home affairs under the general
jurisdiction of the Court, subject to transitional arrangements.
To date, 14 member states, including France, Germany and Italy,
have accepted the jurisdiction of the Court, 12 of which allow
any national court to refer a question to the European Court for
a ruling. The UK has not yet accepted jurisdiction and under the
Treaty the Government has a period of five years to consider whether
it wishes to accept the jurisdiction of the Court of Justice.
If the UK has not done so by the end of this period it will have
to opt-out of the whole cross-border justice system altogether.
19. Professor Steve Peers explained that the
extended remit of the Court of Justice has two key implications.
First, that the European Court of Justice now has jurisdiction
over all member states' national courts and tribunals. For example,
a member of the judiciary in any court in any member state, hearing
a first instance criminal proceeding or an action against the
police, could send a question to the Court of Justice. For instance,
if somebody was trying to resist the execution of a European arrest
warrant their defence counsel could argue that the national implementation
of the Framework decision on the European arrest warrant
is somehow defective and therefore that the arrest warrant could
not be executed. Prosecutors have also sought to use the court,
for example by reference to the Framework decision on the rights
of victims in criminal proceedings to toughen up national
law in favour of victims.
Secondly, the Commission now has the option to sue member states
in the European Court of Justice for infringing EU criminal law
legislation adopted after the entry into force of the Treaty;
similar proceedings will be possible for pre-Lisbon legislation
after five years, unless it is amended in which case the Court's
jurisdiction will automatically apply.
THE CHARTER OF FUNDAMENTAL FREEDOMS
AND THE ACCESSION FOR THE EU TO THE CONVENTION ON HUMAN RIGHTS
20. The Lisbon Treaty strengthens the protection
of human rights in EU in two ways. The entry into force of the
EU Charter of Fundamental Rights makes EU law subject to the fundamental
rights and freedoms guaranteed in the Charter. In addition the
Treaty provides for the EU to join the European Convention on
Human Rights corporately so that all EU institutions and laws
would be subject to the ECHR.
The impact of the incorporation
of justice and home affairs into the European Union's remit
21. A key aspect of our inquiry has been the
question of whether legislation or policy-making in this area
will be easier under the post-Lisbon regime. The 2007 Home Affairs
Committee report Justice and Home Affairs issues at European
Union level outlined alleged difficulties in policy-making
arising from the split of justice and home affairs between the
first and third pillars, including:
- lack of efficiency (the difficulty
of taking decisions requiring the unanimous agreement of 27 countries);
- poor quality of proposals (which
are arguably watered down to accommodate individual member states'
requirements, resulting in the setting of very low common standards);
- the democratic deficit (with
the directly elected European Parliament having a very limited
say in sensitive matters impacting upon fundamental rights);
- limited judicial protection
(with limits imposed by the Treaties on the jurisdiction of the
Court of Justice)
- the creation of a Europe 'à
la carte' (with countries picking and choosing which parts of
EU law they will participate in); and
- an artificial divide between
closely interconnected subjects, such as borders and policing.
It is claimed that this can cause operational difficulties, such
as police and border guards who conduct joint operations but have
different mandates and powers.
22. The changes in decision-making processes
have received both support and criticism. JUSTICE, a UK-based
human rights organisation, has said that the merging of the pillars
will increase the likelihood of proposals being approved.
The Law Society of England and Wales has agreed, and said that
that qualified majority voting would speed up the legislative
process and lead to greater scrutiny of legislation, improved
transparency and a higher level of democratic accountability.
It has also been suggested that this would mean that it was less
likely legislation would be reduced to the "lowest common
denominator" which was an alleged flaw in the requirement
for unanimity. However,
Mr Faull adopted a more cautious view: "those who say Lisbon
will make things easier are [
] underestimating the complex
arrangements to which it gives rise".
IMPLICATIONS FOR THE UK
23. Concerns have been raised that the introduction
of qualified majority voting into criminal law would produce particular
difficulties for the UK and Ireland with their common law systems,
the vast majority of member states using a civil law system based
on the Napoleonic Code.
The loss of the UK's veto in this area was therefore a cause for
concern as, without the opt-in protocol, the UK's negotiating
stance may be weakened and it may become bound by decisions with
which it did not agree.
24. Nevertheless it is generally agreed that
the position regarding UK participation in the area of freedom,
security and justice has become more, rather than less, flexible
under the new arrangements. It remains unclear, however, what
the implications would be if the UK chose not to opt-in to an
amendment to a proposal it had previously opted-in to if it disagreed
with the change.
What needs clarification is what happens when an amending measure,
to which the UK objects, is brought forward to an original measure
which the UK had previously accepted. The options now are:
- the UK accepts the amending
- the UK opts out of the amending
measure but not the original measure
- the UK is ejected from the
original measure where it is rendered "inoperable" (described
as a "high test") for other member states, or the EU
as a whole, by the UK's non-participation in the amending or amended
- as above, with the UK bearing
the costs of financial consequences of its opt-out (decided by
qualified majority voting in Council).
The "UK way"
25. At a European Commission conference on 29
January 2010 the Parliamentary Under-Secretary of State for the
Home Office, Meg Hillier, claimed that the Government "punches
above its weight" in justice and home affairs at EU level
and explained that they are firm enthusiasts of activity in this
field. Lord Bach
supported this view and cited the UK's contribution to negotiations
on the content of the Stockholm programme as an example.
Other witnesses drew our attention to the extent of the UK's participation
in terms of its use of EU authorities and instruments. For example,
the UK has made significant use of Eurojust: it has referred more
cases than any other EU jurisdiction and member states have made
more requests to the UK for assistance than any other jurisdiction.
Representatives from the UK also occupy key positions in both
EU criminal justice agencies, including Mr Rob Wainwright as Director
of Europol and Mr Aled Williams as President of Eurojust, and
EU networks, including Rt Hon Lord Justice Thomas as president
of the European Network of Councils for the Judiciary and Judge
Victor Hall as Secretary General to the European Judicial Training
26. Lord Bach was positive about the entry into
force of the Lisbon Treaty, recognising the need to move the justice
agenda forward and describing the effect of the safeguards that
the UK has negotiated to protect British interests as "thoroughly
He described to us the broad principles which will govern the
UK's decision to opt-in to future proposals: "We start with
a positive frame of mind, which is that we will want to agree
where we can agree."
In his view, the level of migration between member states means
that it is in the interest of all member states to participate
in as many justice measures as possible.
However, we heard that there were clear caveats to this approach:
Government would be much more likely to support sensible, practical,
evidence-based decisions than policies that would be incompatible
with the legal system or economyregardless of their benefitsor
that would affect British interests adversely.
The Government is assisted in its decision-making by the advice
given by the European Scrutiny Committees.
27. While the Government has broadly welcomed
the proposals in the Stockholm programme, it has taken a similarly
cautious approach when it comes to specific measures.
It has adopted a general view that activity in the area of justice,
freedom and security should be tailored to solving real problems
that are identified at EU level.
Lord Bach believed that EU activity could at times be overly ambitious
with "great pronouncements and great attempts at legislation"
sometimes in the absence of an evidence-base to support it.
He therefore advocated a "look before you legislate"
approach. Mr Faull
supported the view that much can be achieved through the gradual
building up of mutual trust which does not necessarily require
legislation. We heard
that maintaining an emphasis on practical evidence-based measures
has been a struggle within the confines of the Council in the
past. Under the Lisbon
Treaty member states have the power to make proposals for legislation
if a quarter of them support it. The EU Committee stated that
this may raise problems in terms of evidence-based policy-making:
Not all proposals in the area of FSJ [freedom, security
and justice], whether they emanate from member states or the Commission,
are supported by the statistical and other evidence critical for
assessing the need for proposed legislation, and especially its
compliance with the subsidiarity principle. The problem is greater
with member states' initiatives: while the Commission always provides
an explanatory memorandum and sometimes provides an impact assessment,
member states rarely provide either.
We discuss the likely impact of this in chapter 3.
28. There are some shortcomings inherent in the
Government's "wait and see" approach in terms of the
extent to which the shape of proposals can be influenced in a
timely way. If Government does not opt-in to initial discussions
it cannot expect to have much influence over the final proposal.
However, in the negotiation of some civil law measures, 
the Government has successfully used an alternative approach to
simply opting-out. Professor Peers described this as "opting-out,
hovering on the sidelines, making suggestions as to what changes
might be made so that [the UK] could then opt in".
However, while it may have worked in the past, Professor Peers
considers this a "risky" option as it has largely relied
on goodwill from other member states which he argued must be "continually
29. We welcome the Government's
approach in favouring evidence-based practical measures and adopting
a "look before you legislate" perspective and we are
encouraged that this perspective has been reflected in the Stockholm
programme. We hope that it will be possible for Government and
the Commission to continue to pursue these ideals now that there
is no longer a requirement for unanimity and that groups of member
states are able to introduce their own initiatives.
IMPLICATIONS FOR IMPLEMENTATION
30. We heard that the UK's decision to continue
to opt-out of the jurisdiction of the European Court of Justice
following the entry into force of the Lisbon Treaty has two main
implications for UK citizens.
31. First, UK courts are responsible for interpreting
EU law and cannot resort to the Court except for basic advice.
This has had limited impact in the field of justice to date as
the Court had no jurisdiction in this area previously. As such
there have been few mechanisms for the enforcement of legislation
which has operated on the basis of mutual trust. Yet, we also
heard that standards, for example in terms of adherence to the
principles of data protection or the safeguards afforded to suspects
under the European arrest warrant, vary considerably (as we discuss
further in chapter 3). For instance, if the UK courts were able
to refer complex questions to the European Court of Justice regarding
the operation of the European arrest warrant, they could receive
greater clarification on issues around proportionality.
Mrs Nuala Mole, Director of the AIRE Centre,
explained that decisions of the European Court which interpret
European legislation are binding on all member states, including
the UK and expressed her disappointment that the UK was not taking
the opportunity to allow its expert lawyers, who tend to have
greater experience than their equivalents in some other member
states, to present clear cases to the Court.
The potential implications of this are discussed in chapter
32. Secondly, the UK Government cannot be held
to account for failure to implement EU legislation except by resort
to the Court by other member states, which is a very rare occurrence.
While this limits judicial control over the UK (as it cannot be
sued by the Commission) it potentially has considerable implications
for UK citizens. For example, Victim Support has drawn our attention
to the failure of the Government to implement, or fully transpose,
a number of articles in the Framework decision on the standing
of victims in criminal proceedings.
According to Professor Peers there have been some references to
the Court of Justice on this framework decision, where it is the
prosecution that has been trying to use it, in the interests of
victims of crime, to toughen up national law from the prosecution's
point of view.
33. We were told that Government has also adopted
a "wait and see" position on whether it will opt-in
to the jurisdiction of the Court within the five-year timeframe,
to take the opportunity to observe how the Stockholm programme
influences the direction of EU measures and the repeal or replacement
of existing measures.
One potential motivation for the Government in not favouring resort
to legislation under the Stockholm programme is that it would
open the measure to the jurisdiction of the Court of Justice.
Therefore, if the UK subsequently opts-in to this jurisdiction,
the Commission would be able to sue the Government if it has failed
to implement effectively.
The House of Lords Committee concluded that the new rules on the
Court's jurisdiction are clearer than the previous position; however,
they may have issues for national sovereignty, particularly for
the UK and its common law system.
34. Some of the practical consequences
of the Lisbon Treaty and the opt-in arrangements that the UK has
negotiated remain matters of contention.
MUTUAL RECOGNITION VS. APPROXIMATION
35. The Stockholm programme and the Lisbon Treaty
are both clear that mutual recognition is at the heart of what
the EU is trying to achieve in the area of freedom, security and
justice. The latter
enshrines the principle of mutual recognition for the first time
in the area of judicial cooperation in criminal matters.
The Government strongly supports this development.
36. Article 83 of the Lisbon Treaty gives the
European Commission the capacity to introduce minimum standardsfor
example on the admissibility of evidence, victims' rights and
procedural rightsand clearly identifies several crimes
for which sanctions could be devised at EU level for the prevention
of "mass criminality", including trafficking in human
beings, sexual exploitation of women and children and illicit
drug trafficking. According to the Commission, such harmonisation
of legislation may be needed (for example, to avoid criminals
using differences between national legislation in different member
states to operate from one EU country in directing activities
in others) to give EU citizens a common sense of justice; and
to facilitate mutual recognition.
This builds on the existing approach to approximation of legislation
whereby all member states must have in their law the availability
of a sentence. Mr Faull was clear that the European Commission
did not wish to harmonise criminal law for the sake of it, and
in any case would find it difficult to do so.
Professor Peers described the setting of general rulesfor
instance, the introduction of a minimum level for maximum sentencesas
a "light-handed approach" to harmonisation which he
did not see as problematic in terms of the variation which exists
in national criminal procedures across member states.
37. The Government recognises that there may
be "benefit in a degree of approximation of substantive law"
in relation to some serious crimes, particularly cross-border
crimes, but told us that it would consider any such proposals
"very carefully and on a case by case basis".
The Government would have "serious reservations" about
moves to align member states' laws and regulations without three
safeguards, ensuring that: they remain within the competence of
the EU; are necessary and appropriate; and respect traditions
in areas such as prosecutorial and judicial discretion (for example
in relation to criminal sanctions).
Lord Bach stressed: "we are not going to have a harmonised
code of criminal law throughout Europe."
38. While the UK Government
may wish to see greater emphasis on joint action and best practice
rather than legislation, the proposals in the Stockholm programme
and the Lisbon Treaty together give rise to the potential for
a significant body of new law.
1 House of Lords European Union Committee, Tenth Report
of Session 2007-08,The Treaty of Lisbon: an impact assessment,
HL Paper 62-I Back
House of Lords European Union Committee, Tenth Report of Session
2007-08, The Treaty of Lisbon: an impact assessment, HL
Paper 62-I, para 6.5 Back
Ev 90 Back
European Commission, Communication from the Commission to the
European Parliament and the Council: an area of freedom, security
and justice serving the citizen, June 2009, COM:2009:0262 Back
Ministry of Justice, UK written comments on the European Commission's
Communication on the Stockholm programme, September 2009 Back
Q 171 [Mr Kennedy] Back
Qq 74, 78-90 [Professor Peers], Q 88 [Mr Faull] Back
Q 171 [Mr Kennedy] Back
Q 171 [Mr Kennedy],Ev 68, 90 Back
Q 88 [Mr Faull] Back
Treaty establishing a Constitution for Europe, CIG 87/04 Back
Q 88 [Mr Faull] Back
Qq 245-246 Back
Ministry of Justice, UK written comments on the European Commission's
Communication on the Stockholm programme, September 2009 Back
Co-decision is based on the principle of parity and means that
neither institution (European Parliament or Council) may adopt
legislation without the other's assent. An explanation of the
full procedure can be found at http://europa.eu Back
A qualified majority is the number of votes required in the Council
of Ministers for a decision to be adopted. Decisions will need
the support of 55% of Member States (currently 15 out of 27 EU
countries) representing a minimum of 65% of the EU's population.
A fuller explanation can be found at http://europa.eu Back
There are an number of exceptions to the move to ordinary legislative
voting including family law: cooperation between law enforcement
authorities, which will continue to be decided by unanimity unless
the Council, after consultation with the European Parliament,
unanimously agrees to consider the proposal under the ordinary
legislative procedure. Anti-terrorism legislation also requires
unanimity without a role for the European Parliament. Back
Q 88 [Mr Faull]. See protocol no 21 accompanying the Lisbon Treaty Back
Articles 82(3) and 83(3) of the Lisbon Treaty Back
Ev 107 Back
Q 4 Back
HL Paper (Session 2007-08) 62-I, para 6.45 Back
Q 125 [Mrs Mole]; See Article 10 in protocol 36 of the Lisbon
Qq 56-57 Back
Q 60 Back
Home Affairs Committee, Third Report of Session 2006-07, Justice
and home affairs issues at European Union level, HC 76-I Back
HL Paper (Session 2007-08) 62-I, para 6.22 Back
Q 88 Back
Qq 52, 88 Back
Q 63 [Professor Peers], Ev 107-108 [Professor Mitsilegas] Back
European Commission representation in the UK and Centre of European
Law, King's College London conference, Explaining the Stockholm
programme: changes and novelties on immigration and criminal justice
cooperation and importance for the United Kingdom, 29 January
Q 232 Back
Qq 188-189 [Mr Kennedy] Back
Qq 2-3 Back
Q 4 Back
Q 232 Back
Qq 4, 232 Back
Q 49 [Lord Bach] Back
Ev 93 Back
Q 244 Back
Q 43 Back
Q 89 Back
Q 50 [Lord Bach] Back
HL Paper (Session 2007-08) 62-I, para 6.72 Back
See Q 233 [Lord Bach] and Q 54[Professor Peers] Back
Q 55 Back
Q 126 [Ms Blackstock] Back
A charity which provides advice on individual rights in Europe.
See www.airecentre.org Back
Qq 125-6, 134 [Mrs Mole] Back
Q 134 [Ms Mole]. See also Ev 75 Back
Ev 113-114. See also chapter 3. Back
Q 60 Back
Q 242 [Lord Bach] Back
See Q65 [Professor Peers] Back
HL Paper (Session 2007-08) 62-I, para 6.88 Back
Q 88 [Mr Faull] Back
See Article 82(1) of the Lisbon Treaty Back
Ev 94 Back
See http://europa.eu/ information on freedom, security and justice. Back
Q 88 Back
Q 78 Back
Ev 94 Back
Q 238 Back