Select Committee on European Union Tenth Report


CHAPTER 2: The Hague Programme—General Characteristics

Legitimacy

6.  The Hague Programme starts by reaffirming the priority attached to Justice and Home Affairs by the European Council, which responds to a "central concern" of EU citizens. The need to respond to the expectations of EU citizens in this area is emphasised on numerous occasions in the text. According to Dr Helen Xanthaki,[2] this emphasis represents "a reallocation of the basis of legitimacy for the JHA policy from legitimacy on the basis of an abstract general principle of law common to the laws of the member states to legitimacy deriving directly from the European peoples".[3] This shift from the rule of law to people's concerns as a basis for legitimacy of EU action in JHA was criticised by Professor Elspeth Guild,[4] who noted that the language of the Hague Programme was inconsistent with the emphasis of the preamble of the Constitutional Treaty on fundamental rights. She argued that the EU should integrate fundamental rights and freedoms into operational measures in the areas of, for example, border controls, policing and external relations, on the ground that human rights are "an integral part of the legitimacy of operational measures".[5] We highlight in paragraph 11 the importance of protecting fundamental rights in this area.

Consolidation and implementation

7.  The Hague Programme states expressly that it builds on ongoing work arising from Tampere. This is most notable in areas such as asylum and mutual recognition in criminal and civil matters. Ms Caroline Flint emphasised the need to consolidate and evaluate what had been achieved following the Tampere Programme, which she characterised as "a building block" in the development of EU JHA policy, a new area of EU activity.[6] The Minister noted that evaluation and monitoring was one of the issues missing from the Tampere Programme but reflected in the Hague Programme. The Government also welcomed the emphasis placed on evaluation in relation to the civil law aspects of the Hague Programme.[7] The Commission, too, welcomed the Hague Programme, which in its view "reconciles the various priorities of the Member States while focusing on ways to ensure better control over the practical implementation of measures, improved coherence and co-ordination".[8]

Relationship with the Constitutional Treaty

8.  The Hague Programme states that the Constitutional Treaty has served as a guideline for the level of ambition in the Programme, but that the existing Treaties provide the legal basis for Council action until the new Treaty enters into force. The European Council has decided that the Hague Programme will be reviewed when the Treaty enters into force, which at present is planned for November 2006. Our witnesses agreed that the Constitution had been a decisive factor in the drafting and content of the Hague Programme and that the Programme played a significant part in bringing to the fore and giving priority to action on the lines set out in the Constitutional Treaty—for instance, on measures relating to mutual recognition in criminal matters.[9]

Vision or pragmatism?

9.  It is perhaps because of its emphasis on consolidation and building on initiatives brought forward following Tampere that the Hague Programme has been criticised for a lack of vision. The Immigration Law Practitioners' Association (ILPA) characterised it as a "decidedly muted event".[10] Dr Xanthaki argued that "it fails to propose specific areas where legislation would be welcome", something that in her view indicated a lack of general consensus among Member States and a lack of clear vision for the immediate future in JHA.[11] The Government on the other hand welcomed the general direction of the Programme. Baroness Ashton supported its emphasis on pragmatism and the firm statement that future action in JHA must respect the principles of subsidiarity and proportionality as well as the different legal traditions of Member States.[12] The Law Society similarly noted that EU action in this area must respect the different legal systems of Member States and focus on better law making.[13] We too welcome the emphasis that the Hague Programme places on respect for the principles of subsidiarity and proportionality and for the legal traditions of Member States in developing legislation in Justice and Home Affairs. We expect the Government to be vigilant in ensuring full respect for these principles.


2   Academic Director, Sir William Dale Centre for Legislative Studies, University of London. Back

3   p 54.  Back

4   Professor of European Migration Law, Radboud University, Nijmegen. Back

5   p 28Back

6   Q 2. Back

7   p 13. For a detailed analysis of the proposals for evaluation see paragraphs 48-52 below. Back

8   p 26. Back

9   p 28 (Professor Guild); p 52 (Dr Stefanou); p 54 (Dr Xanthaki). Back

10   p 38. Back

11   p 55. Back

12   p 13Back

13   p 46. Back


 
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