PROSPECTS FOR THE TAMPERE SPECIAL EUROPEAN
PART 4: OPINION OF
34. The Justice and Home Affairs provisions of the
Amsterdam Treaty, followed up by the Action Plan adopted at the
Vienna European Council in December 1998 mark a major development
in justice and home affairs policy in the European Union, and
set out an ambitious work programme. Taken together, the new Treaty
provisions and the Action Plan identify a number of priority areas
where action is to be taken within a 2 - 5 year timeframe. But
this is undoubtedly only the beginning of a longer-tem project.
In the course of our enquiry, the Home Secretary suggested that
this was, in some ways, an initiative comparable in scope and
importance to the programme leading to the single European market.
35. The decision to hold a Special European Councilthe
first to deal with this area of policyis therefore a very
important initiative. Over the past few years, the level of intergovernmental
activity in this field has increased enormously, and the Amsterdam
Treaty has extended Community competence in these areas beyond
what was agreed at Maastricht. The implications of these Treaty
commitments need to be considered in detail.
36. The Special European Council comes at an opportune
moment for other reasons. The issues with which governments are
concerned in the JHA field have changed radically in recent years.
The completion of the internal market has, among other effects,
led to an increase in cross-border crime. Crises in Eastern Europe
and Africa have led to increasing pressure on the EU's frontiers.
Migration and asylum issues have come to the fore. As the Home
Secretary told us "whenever two or three Interior Ministers
are gathered together, they tend to talk about nothing else"
37. The Special European Council could serve a dual
purpose. On the one hand, it will raise the profile and visibility
of co-operation in the field of justice and home affairs. On the
other, it will introduce a political dimension into issues perceived
as technically complex and hence the preserve of specialists.
Perhaps most significantly, political leaders will have to re-acquaint
themselves with the concept of an area of freedom, security and
justice, and will have to establish guidelines demonstrating the
relevance of this concept to the citizens of the EU's member states.
If the summit succeeds in adopting clear and substantial guidelines,
this could help the European Union to overcome its so far rather
fragmented and intermittent decision-making in the field of justice
and home affairs
38. There are, however, some possible risks. Crucially,
the European Council must carry public opinion with it. There
is very little knowledge or understanding of the potential scope
for EU activity in the justice and home affairs field. Governments
have to be more open and communicate more effectively to build
public confidence. There have to be demonstrable benefits for
citizens - most importantly, in relation to civil liberties -
resulting from each proposed objective. Issues of accountability,
visibility and public acceptance have so far been underplayed.
National parliaments also have a significant role to play in these
areas, and it is important that they should be kept fully informed
and involved in the run-up to the Tampere meeting and after.
39. There is also the question of resources. We received
no evidence on this point, but it is clear that the proposals
on the Tampere agenda - which may include the development of new
institutions - have substantial resource implications. The European
Council should, in our view, ensure that it tailors its ambitions
to the human and financial resources available. To fail to do
so would risk arousing expectations which stand little chance
NATIONAL INTERESTS AND POSITIONS
40. Preparations for the summit have already demonstrated
that the Member States have different priorities. For the French
Government, for instance, a clear priority is to achieve progress
on the "European judicial area" project which is seen
as necessary to bring Europe closer to its citizens and which
ties in well with current reforms of the French national judicial
system. The German Government is primarily interested in progress
towards a comprehensive common European asylum and immigration
strategy with an effective system of burden-sharing which could
relieve Germany of some of the intense pressure it experiences
because of its geographical position.
41. Her Majesty's Government proposes using the Tampere
summit to agree on an extension of the principle of mutual recognition
of judicial decisions, especially in the area of criminal law.
The Government considers this to be a more promising approach
than the harmonisation favoured by a number of other Member States.
Mutual recognition can cut through the problems caused by the
differences between national legal systems and does not require
the controversial and time consuming harmonisation of national
laws. This initiative has been supported mainly by Germany and
the Scandinavian countries. The Government is also aiming to achieve
progress at Tampere on improving citizens' access to justice across
European borders. Unlike the Belgian and French governments, however,
the Government sees scope for practical progress by the coordination
of existing national procedures rather than steps towards the
creation of a single European code of civil procedure.
42. The Government has also launched an initiative
on preventing and combating youth crime, which is aimed at the
creation of EU programmes for comparing experiences, identifying
and promoting good practice, training, research and seminars.
This initiative has not been met with an overwhelming response
from other Governments, some of which feel that this issue does
not necessarily require action by the Heads of State and Government
and may perhaps better be dealt with in the national context,
in line with the principle of subsidiarity. On the other hand,
it is clear that a common European asylum and immigration system,
as favoured by Germany, Italy and Austria, is not one of the Government's
43. Member States' approaches to Tampere range from
the visionary to the pragmatic, with perhaps some degree of indifference
in between. The Committee welcomes the Government's initiative
in putting forward its own proposals for Tampere. We agree with
the Government's analysis that a practical, "needs-based"
approach is likely to produce tangible benefits and command greater
public support than setting ambitious long-term objectives, which
may be difficult to implement and could cause friction and division.
The existing national procedures and institutions are the product
of long experience, and reflect cultural differences in the Member
States. The European Council has the difficult, but necessary,
task of reconciling the conflicting claims of effectiveness, democratic
accountability and national autonomy.
OF THE AGENDA
44. The Finnish Presidency has been working to narrow
down the extremely wide-ranging proposals which have been made
for the agenda. They have chosen to focus on three broad headings.
This is useful, but in our view the agenda is still too wide.
Each of the three headings chosen by the Presidency would itself
provide sufficient material for a well-filled European Council
agenda. We doubt whether the Heads of State or Government will
have the time to discuss effectively all of these issues. As a
result there may be a risk that either political guidelines void
of substance are adopted or that some objectives are agreed on
whose longer term implications are not understood. For this reason,
the Committee hopes that Ministers responsible for implementing
the objectives agreed at Tampere will be present at the summit.
45. In our view, the final stages of the preparations
for the Council must focus on setting priorities, and should establish
realistic targets which are capable of fulfilment in the short-to-medium
term. We would emphasise, in particular, that the measure of the
success of the European Council should not simply be the creation
of new institutions or grandiose policy objectives.
46. Experience with refugees from south-east Europe,
especially the dramatic events in Kosovo, are bound to influence
the discussions at Tampere. Member States, however, are unlikely
to have drawn the same conclusions, particularly on such sensitive
issues as burden-sharing. The Committee considers the demand of
the German Government for greater European solidarity in the areas
of asylum policy and protection of refugees with considerable
sympathy. However, having looked at the enormous political and
practical difficulties of agreeing and implementing an obligatory
system of burden-sharing it feels that a voluntary approach, building
upon the progress achieved on this issue under the German Presidency,
is at the moment the only realistic option. The Tampere European
Council should be used to consolidate the Union's approach in
47. The summit also faces a major political dilemma
in having to reconcile, on the one hand, the need to safeguard
asylum as an individual right and to ensure adequate protection
of refugees and, on the other, the desire common to all Member
States to resist economic migration. We see some value in establishing
minimum basic standards, based on the 1951 Geneva Convention and
UNHCR guidelines, as regards the substantive rights of asylum
seekers and the procedural rules for handling asylum claims. But
we are also conscious of the risk that standards might be set
at the lowest common denominator, thus provoking a downward spiral
in the level of protection available in the EU. We welcome discussion
of the need for complementary forms of protection for those falling
outside the criteria laid down in the 1951 Geneva Convention,
and we draw attention to Declaration 17 annexed to the Amsterdam
Treaty, which provides that "Consultations shall be established
with the United Nations High Commissioner for Refugees and other
relevant international organisations on matters relating to asylum
48. We support a comprehensive approach to identifying
and addressing the causes of migratory flows into the EU, and
we await with interest the reports from the High Level Working
Group on Asylum and Migration on the various tools available to
tackle or alleviate the problems at source. This is a complex
area, and has major implications for the shaping of the EU's policies
for development and financial aid, as well as for the Common Foreign
and Security Policy. We share the Government's concern that the
prevention of migration should not displace the primary objective
of poverty reduction in the Community's development policy. Indeed
poverty reduction, over time, is likely to reduce migratory pressures.
AGAINST CROSS-BORDER CRIME
49. The Committee believes that further progress
in the fight against cross-border crime at the European level
is of major importance. However, the evidence taken failed to
convince us that the best way forward would be to engage in a
process of harmonisation of national criminal laws. This would
not only be controversial in some Member States but would also
take a very long time to achieve substantial results. Similarly,
the development of a uniform code of criminal offences for the
EU would be problematic. The Corpus Juris project, a research
study aimed at providing an EU-wide regime to deal with fraud
on the Community's finances, gives some idea of the difficulties
which would be encountered.
Instead the Committee favours the idea of an increased use of
the method of mutual recognition of judicial decisions in criminal
matters as has been proposed by the Government. This is discussed
in greater detail in our conclusions on a European judicial area
(see paragraphs 51-57 below).
50. The Committee considers that EUROPOL needs to
demonstrate its ability effectively to perform its current tasks
before any consideration should be given to extending its role
and competences. However, the Committee supports in principle
two other institutional innovations proposed during the preparations
for the Tampere European Council:
(i) the creation of a European Police Staff
College which could provide special training for police officers
of the Member States and the applicant countries for the fight
against cross-border crime. A European Police Staff College could
help to identify and propagate best practice in investigative
techniques, operations and enforcement against cross-border crime
throughout Europe. The United Kingdom would be a highly appropriate
base for such a project, and we encourage the Government to consider
whether the United Kingdom should offer to host such a college.
(ii) the creation of a "Eurojust" unit
composed of national prosecutors or magistrates vested with certain
powers to prosecute cross-border criminal activities. The Committee
believes, however, that the precise role, powers and financial
implications of such a unit need further consideration. It regards
"Eurojust" as a necessary parallel unit to Europol.
The Committee considers it important that the national liaison
prosecutors or magistrates posted to this body should only initiate
and direct investigations within their own national territory
in accordance with their national law. We note that, if Eurojust
is established, it will be essential to maintain a balance between
the effective prosecution of cross-border offences and the protection
of the rights of the defence. As we remarked in our report on
the Corpus Juris, the accused also has a place in the area
of freedom, security and justice. Moreover, the issue of accountability
will arise as much for Eurojust as for Europol. We urge the Government
to consider further how mechanisms of accountability at the European
and national level should be developed for these bodies.
51. This concept, more than any other on the Tampere
agenda, is open to a wide variety of interpretations. In the field
of civil law, it would seem to imply easier access to justice
across European borders. In the criminal field, it would mean
co-operating "as though there were no legal boundaries",
with each Member State recognising as valid the decisions of another
Member State's courts in the criminal area with the minimum of
52. Proposals made by the Lord Chancellor's Department
include better provision of information on small claims procedures
in other Member States; facilitating access to justice systems
through the use of information technology; and exchanging best
practice to improve the efficiency of civil justice procedures
and to reduce delays. These ideas, while welcome, are hardly novel.
The Committee regrets that the Government has not taken the opportunity
to promote more substantial measures to tackle the practical obstacles
citizens face in seeking justice in another jurisdiction. These
might include minimum rules for obtaining legal aid and advice,
or the establishment of common procedures for small claims which
would provide quick and effective remedies.
53. The Committee welcomes the Home Office's paper
on mutual recognition of decisions and judgments in criminal matters.
We believe that the "mutual recognition" approach is
preferable to harmonisation of differing systems of criminal law
and is likely to give quicker results. We agree with the Government
that mutual recognition should apply at an early stage in criminal
proceedings (for example, in connection with arrest warrants,
witness summonses, warrants for search and seizure etc.). Two
factors are of particular importance if this proposal is to make
progress, and were stated by the Government in its explanatory
memorandum on the proposal. The first is that "the key underlying
is the principle that Member States of the EU should
have full confidence in each others' legal systems. Progress towards
mutual recognition may therefore depend on agreeing common minimum
standards and safeguards, for example on the treatment of suspects
in custody and procedures for ensuring that the standards and
safeguards are actually applied." The second factor is public
opinion. The Home Office memorandum argues that "public opinion
is not yet always ready to accept that the judicial authorities
and procedures of other Member States are equivalent to their
domestic courts, especially where their own nationals are involved."
We agree with this analysis.
54. We believe that some form of inspection and evaluation
is essential to build up mutual confidence in the judicial systems
of the Member States. We note that there exists among Schengen
states a rigorous system to test the effectiveness of each others'
external border controls. In our report on the Corpus Juris,
we welcomed the development of a system
of mutual assessment and peer review of various States' mutual
legal assistance arrangements. It will be necessary to give careful
consideration to appropriate forms of inspection and evaluation
as a means of gaining public acceptance for the principle of mutual
55. We were impressed by the evidence given by Mr
Stephen Jakobi, of Fair Trials Abroad, on the need for a Europe-wide
system of provisional liberty, or "Eurobail". We believe
that, in parallel with the development of a "Eurojust"
organisation, further consideration should be given to the concept
of "Eurobail", as a way of ensuring that the prosecution
of cross-border crime does not result in a substantial increase
in the numbers of citizens of one EU Member State on remand without
bail in another EU state. In our report on the Corpus Juris,
we identified a need for research across all the Member States
to ascertain the nature and scale of the problem. We continue
to urge the Government to seek to persuade the Union of the value
of such research. The development of a system of "Eurobail"
would help to demonstrate that closer European co-operation in
this field can also enhance respect for civil liberties in all
the Member States.
56. The Committee has two particular concerns about
the Government's paper on mutual recognition. First, it does not
consider the possible grounds on which the application of the
principle of mutual recognition may be challenged. The Convention
on Driving Disqualification, agreed last year, specifies the circumstances
in which the Member State of residence may refuse to give effect
to a disqualification imposed in the State where the offence was
committed. These include cases where it considers that the disqualified
driver did not have an adequate opportunity to defend himself.
In developing the idea of mutual recognition across a range of
criminal offences, it will be necessary to define in each case
the possible grounds for refusing to enforce a judicial decision
given in another Member State.
57. Secondly, the paper is silent on the role, if
any, of the European Court of Justice. The Committee considers
that mutual recognition must be founded on a rigorous and transparent
evaluation of the criminal justice systems in the Member States.
In addition to a system of mutual evaluation and inspection, a
judicial mechanism must be available at EU level to ensure compliance
with common minimum standards and safeguards. This principle has
been readily accepted in the interpretation and implementation
of internal market rules. It is no less important in matters affecting
the liberty of the citizen.
AN EU CHARTER
OF FUNDAMENTAL RIGHTS
58. In the course of our enquiry, we heard evidence
on the German proposal for a European Union Charter of Fundamental
Rights. We have not drawn any conclusions on this proposal, which
is not on the agenda for the Tampere summit, but it is a matter
to which the Committee may return as this proposal is developed.
The proposed Charter raises the question whether the object of
protecting fundamental rights could not be more effectively achieved
by full incorporation of the European Convention on Human Rights
into Community law. The Committee last considered the question
of Community Accession to the European Convention in 1992-93.
At that time, the Committee concluded "
we do not
favour Community Accession to the European Convention on Human
Rights." However, with the changes introduced by the Maastricht
and Amsterdam Treaties, Community law has diversified well beyond
the field of economic activity. There is an explicit Treaty recognition
of the importance of the Convention in ensuring respect for human
rights and fundamental freedoms. But we will need to be sure that
adequate means exist for enforcing such rights, especially in
the new spheres of Union activity. We may, therefore, have to
look again at the question of Community accession to the Convention.
3 A Declaration agreed at Maastricht provided that
"the President of the European Council shall invite the Economic
and Finance Ministers to participate in European Council meetings
when the European Council is discussing matters relating to economic
and monetary union". There is, therefore, a precedent for
involving other Ministers in addition to those responsible for
Foreign Affairs, as required by Article 4 TEU. Back
4 See our 9th Report, Session 1998-99 (HL Paper 62),
Prosecuting Fraud under the Communities' Finances - the Corpus
Juris. We concluded that at the present time this was not "a
practically feasible or politically acceptable way forward"
and argued that, "in the short term, energy and resources
would be better directed towards improving mutual legal assistance
and practical co-operation." Back
5 Speech given by the Home Secretary to a seminar on judicial co-operation
in criminal cases, Avignon, 16 October 1998. Back
6 As part of the action plan on consumer access to justice, a Commission
Communication adopted in March 1998 recommended the use of a European
consumer complaint form (available on the Internet at http://europa.eu.int/comm/dg24
to help resolve small claims disputes. Back
7 9th Report, Session 1998-99 (HL Paper 62), see paragraphs 102
and 131. Back
8 Human Rights Re-examined, 3rd Report Session 1992-93, (HL
Paper 10). Back