Justice issues in Europe - Justice Committee Contents


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 justice field.

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.[1] 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".[2] 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.[3]

5.  The area of freedom, security and justice is still very much a "work in progress".[4] 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[5] in September 2009.[6]

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.[7] There are fundamental differences between common law systems and those prevalent in most EU member states and differences in the role of judges.[8] 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.[9] 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.[10] 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."[11] 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.[12]

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 1—Summary 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 citizens—in particular UK citizens—including 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 programme including:

  • 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 of enforcement.

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.[13] 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.[14] It also supports proposals to improve the evaluation and implementation of existing instruments through the sharing of best practice.[15]

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)[16] and qualified majority voting within the Council.[17]

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.[18] 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 UK—and Ireland—secured a more extensive opt-in arrangement[19] 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".[20] 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.[21] 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.[22] 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 decisions.[23]

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.[24]

19.  Professor Steve Peers explained that the extended remit of the Court of Justice has two key implications.[25] 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.[26] 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.[27]

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.[28] 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.[29] 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.[30] 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".[31]

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.[32] 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.[33] 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 measure;
  • 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 measure
  • 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.[34] Lord Bach supported this view and cited the UK's contribution to negotiations on the content of the Stockholm programme as an example.[35] 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.[36] 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 Network.

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 satisfactory."[37] 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."[38] 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.[39] 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 economy—regardless of their benefits—or that would affect British interests adversely.[40] 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.[41] 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.[42] 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.[43] He therefore advocated a "look before you legislate" approach.[44] Mr Faull supported the view that much can be achieved through the gradual building up of mutual trust which does not necessarily require legislation.[45] We heard that maintaining an emphasis on practical evidence-based measures has been a struggle within the confines of the Council in the past.[46] 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.[47]

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, [48] 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".[49] 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 earned".

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 AND ENFORCEMENT

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.[50] Mrs Nuala Mole, Director of the AIRE Centre[51], 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.[52] The potential implications of this are discussed in chapter 2.

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.[53] 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.[54] 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.[55]

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.[56] 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.[57] 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.[58]

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 OF LEGISLATION

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.[59] The latter enshrines the principle of mutual recognition for the first time in the area of judicial cooperation in criminal matters.[60] The Government strongly supports this development.[61]

36.  Article 83 of the Lisbon Treaty gives the European Commission the capacity to introduce minimum standards—for example on the admissibility of evidence, victims' rights and procedural rights—and 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.[62] 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.[63] Professor Peers described the setting of general rules—for instance, the introduction of a minimum level for maximum sentences—as 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.[64]

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".[65] 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).[66] Lord Bach stressed: "we are not going to have a harmonised code of criminal law throughout Europe."[67]

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

2   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

3   IbidBack

4   Ev 90 Back

5   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

6   Ministry of Justice, UK written comments on the European Commission's Communication on the Stockholm programme, September 2009 Back

7   Q 171 [Mr Kennedy] Back

8   Qq 74, 78-90 [Professor Peers], Q 88 [Mr Faull] Back

9   Q 171 [Mr Kennedy]  Back

10   Q 171 [Mr Kennedy],Ev 68, 90 Back

11   Q 88 [Mr Faull] Back

12   Treaty establishing a Constitution for Europe, CIG 87/04 Back

13   Q 88 [Mr Faull] Back

14   Qq 245-246 Back

15   Ministry of Justice, UK written comments on the European Commission's Communication on the Stockholm programme, September 2009 Back

16   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

17   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

18   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

19   Q 88 [Mr Faull]. See protocol no 21 accompanying the Lisbon Treaty Back

20   Articles 82(3) and 83(3) of the Lisbon Treaty  Back

21   Ev 107 Back

22   Q 4  Back

23   HL Paper (Session 2007-08) 62-I, para 6.45 Back

24   Q 125 [Mrs Mole]; See Article 10 in protocol 36 of the Lisbon Treaty Back

25   Qq 56-57 Back

26   Q 60 Back

27   Home Affairs Committee, Third Report of Session 2006-07, Justice and home affairs issues at European Union level, HC 76-I Back

28   HL Paper (Session 2007-08) 62-I, para 6.22 Back

29   Ibid. Back

30   Ibid. Back

31   Q 88  Back

32   Qq 52, 88 Back

33   Q 63 [Professor Peers], Ev 107-108 [Professor Mitsilegas] Back

34   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 2010 Back

35   Q 232  Back

36   Qq 188-189 [Mr Kennedy] Back

37   Qq 2-3  Back

38   Q 4  Back

39   Q 232 Back

40   Qq 4, 232 Back

41   Q 49 [Lord Bach] Back

42   Ev 93 Back

43   Q 244  Back

44   Q 43  Back

45   Q 89 Back

46   Q 50 [Lord Bach] Back

47   HL Paper (Session 2007-08) 62-I, para 6.72 Back

48   See Q 233 [Lord Bach] and Q 54[Professor Peers] Back

49   Q 55 Back

50   Q 126 [Ms Blackstock] Back

51   A charity which provides advice on individual rights in Europe. See www.airecentre.org Back

52   Qq 125-6, 134 [Mrs Mole] Back

53   Q 134 [Ms Mole]. See also Ev 75 Back

54   Ev 113-114. See also chapter 3. Back

55   Q 60 Back

56   Q 242 [Lord Bach] Back

57   See Q65 [Professor Peers] Back

58   HL Paper (Session 2007-08) 62-I, para 6.88  Back

59   Q 88 [Mr Faull] Back

60   See Article 82(1) of the Lisbon Treaty Back

61   Ev 94 Back

62   See http://europa.eu/ information on freedom, security and justice. Back

63   Q 88 Back

64   Q 78 Back

65   Ev 94 Back

66   Ibid. Back

67   Q 238 Back


 
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