Select Committee on European Union Tenth Report

CHAPTER 6: AREA OF FREEDOM, SECURITY AND JUSTICE

Introduction

6.1.  Some of the most controversial changes introduced by the Treaty of Lisbon are in the area of freedom, security and justice. This Chapter sets out the proposed changes and assesses the impact on existing EU law in this area.

EU COOPERATION IN JUSTICE AND HOME AFFAIRS

6.2.  Cooperation in the field of justice and home affairs first appeared on the European Union agenda in 1992 with the conclusion of the Maastricht Treaty and the creation of the three pillars.[101] The existing European Community became the First Pillar of the European Union, and the Second and Third Pillars introduced were Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA) respectively. Unlike the First Pillar, which operates chiefly on the basis of co-decision with the European Parliament and qualified majority voting in the Council, the Second and Third Pillars are intergovernmental in nature. Accordingly, measures adopted within the framework of justice and home affairs required unanimity in the Council of Ministers and the European Parliament was granted a limited consultation role only.

6.3.  With the conclusion of the Treaty of Amsterdam in 1997, the concept of an area of Freedom, Security and Justice (FSJ), covering all aspects of JHA, was born. One of the principal changes introduced by Amsterdam was the reshuffling of Treaty provisions on JHA policies to move some JHA matters, namely immigration and asylum measures, border controls and the areas of civil and family law, from the Third Pillar into the First Pillar. The Third Pillar was renamed Police and Judicial Cooperation in Criminal Matters, to reflect the change.

6.4.  The Treaty of Lisbon completes the absorption of the remaining Pillar Three aspects of JHA—i.e. police and judicial cooperation in criminal matters—into Pillar One. This will mean that measures under all aspects of the Area of Freedom, Security and Justice will be determined by the ordinary legislative procedure of qualified majority voting and co-decision unless otherwise specified, and will, subject to transitional and, in the case of the UK, opt-in arrangements, which we discuss below, come over a period within the jurisdiction of the ECJ.

6.5.  Some of our witnesses said that cooperation in the field of asylum, immigration, civil and criminal law and policing was not undertaken as an aim in itself. Rather, it was a necessary corollary of the development of the internal market, which resulted in free movement and the creation of a "common space". In the criminal sphere, they said, cooperation at EU level was necessary to ensure that individuals did not escape prosecution simply by exercising their free movement rights (QQ E158, E408). The Lord Chancellor also stressed that the more movement of people and business across borders, the greater the need for a high degree of cooperation and mutual recognition on legal matters. In his view, it was in the interests of the UK and its citizens to be involved in "wider and deeper cooperation on justice and home affairs" to ensure that citizens abroad benefitted from rights equivalent to those they would have within the United Kingdom (QQ E475-476).

GENERAL REACTIONS TO THE CHANGES IN THE AREA OF FREEDOM, SECURITY AND JUSTICE

6.6.  Professor Jo Shaw, of the University of Edinburgh, noted that the area of freedom, security and justice will see the "most substantial substantive and procedural changes" if the Treaty of Lisbon enters into force (Q E1). Andrew Duff MEP welcomed the changes and concluded that the Union "will enjoy a greater capacity to act effectively to meet pressing contemporary challenges of security, liberty and freedom of movement" (p E135). Dr Valsamis Mitsilegas, Queen Mary University of London, considered that the changes to the decision-making process as well as the changes to the substantive criminal law provisions would provide "a fresh impetus for a number of new, extensive legislative initiatives in EU criminal law" (p E166).

6.7.  A number of witnesses pointed to the benefits they believed the new Treaty would bring to citizens of the EU. Sir David Edward noted that measures taken in the FSJ area are "liable directly to affect the liberty of the individual" and he pointed to the need for adequate parliamentary scrutiny and judicial control of such measures (p E142). Brendan Donnelly considered that the reforms proposed under the new Treaty would simplify and enhance transparency in the Union's decision-making structure, which would make it easier for the citizen to understand (p E132).

6.8.  Other witnesses opposed the changes in the FSJ field and questioned whether it was necessary or desirable to move all of this field into the First Pillar, with the consequence of moving from intergovernmental consensus to QMV, co-decision and ECJ jurisdiction. The Freedom Association criticised a number of aspects of the reform (p E153) and Mrs Anne Palmer JP, Sally DeBono and Mr Torquil Dick-Erikson also expressed concerns (pp S131, E131-132, E171-172). These concerns are considered in more detail below.

6.9.  The Law Society of Scotland saw increased EU action in this area as an inevitable consequence of the internal market, and pointed out that it was in the general interests of all to ensure the "efficient cross-border functioning of our justice systems where that is required". However, they highlighted that traditions and norms of national justice systems should "be treated with care" and that the principle of subsidiarity should be strictly observed (p E163).[102]

Institutional changes in freedom, security and justice

6.10.  As briefly outlined above, the area of Freedom, Security and Justice encompasses several different fields. Broadly speaking, these are: civil law, family law, criminal law, policing, border controls, visas, asylum and immigration. Institutional changes in all of these areas are introduced by the Treaty of Lisbon.

THE PILLAR STRUCTURE

6.11.  Although they fall under the same policy heading and are dealt with by the same Directorate-General of the Commission, FSJ measures are unique in that they currently fall across the First and Third Pillars. Thus Title IV of the TEC (First Pillar) deals with civil law (including family law), border controls, visas, asylum and immigration; while Title VI of the current TEU (Third Pillar) covers criminal law and policing. An important consequence of this divide is that the legislative procedure for a measure varies depending on the subject matter.

i. Arrangements under the existing Treaties

a. Legislative procedure

6.12.  Title IV—Articles 61-69 of the TEC—is headed "Visas, asylum, immigration and other policies related to free movement of persons". Originally forming part of the Third Pillar under the EU Treaty, this Title was inserted into the TEC by the Treaty of Amsterdam in 1997. A number of specified areas, principally visas and asylum, became subject to qualified majority voting and co-decision with the European Parliament following a transitional period (although some visa-related measures moved to QMV and consultation only). Other areas continued to be subject to unanimity in the Council following consultation of the European Parliament. Civil law, excluding aspects of family law, was moved to QMV and co-decision by the 2001 Treaty of Nice. A provision in Article 67(2) provides that measures to be adopted on the basis of unanimity can, by a unanimous decision of the Council, be moved to QMV. This passerelle has been used: a 2004 Council Decision extended qualified majority voting and co-decision to border checks, free movement and some aspects of immigration.[103] Unanimity and consultation have been retained for legal migration and measures relating to family law.

6.13.  Title VI—Articles 29-42 of the TEU—is entitled "Provisions on police and judicial cooperation in criminal matters". Measures under Title VI are adopted by unanimity following consultation with the European Parliament.[104]

b. Possibility for enhanced cooperation

6.14.  The possibility for enhanced cooperation exists in both the TEC and the TEU. Under the TEU, Articles 40-41 and 43-45 allow a minimum of eight Member States to adopt measures among themselves in the Title VI field. There are a number of conditions to be met and Article 43a makes it clear that enhanced cooperation is only available as a "last resort". Member States must seek authorisation from the Council (acting by QMV) before engaging in enhanced cooperation and those participating in the enhanced cooperation must bear any costs associated with the measure. Articles 11 & 11a TEC permit enhanced cooperation in any of the areas covered by the TEC, under the rules established in the TEU.

ii. Position post-Treaty of Lisbon

6.15.  As outlined, the principal change to the area of Freedom, Security and Justice is what is commonly referred to as the "collapse of the Pillars" but is more accurately described as a merging of the Pillars: the Third Pillar will cease to exist and all fields which are currently under current Titles IV TEC and VI TEU will, from the date of entry into force of the Treaty of Lisbon, come into the new Title V TFEU.

6.16.  Mr Dick-Erikson was opposed to the merging of the pillars, which he considered would lead to the eventual suppression of the British Common Law system in favour of the Civil Law system prevalent in mainland Europe (p E131). This was a view shared by the Brethren Christian Fellowship, which said that the pillar arrangement "has been instrumental in maintaining the essential national interest of individual governments" in the sensitive areas of foreign policy and justice and home affairs (p E125). Martin Howe QC also queried whether one would want to extend the "loss of control" which the merging of the pillars and resulting ECJ jurisdiction entailed to sensitive areas of criminal law (Q E204) and David Heathcoat-Amory MP concluded that "I think it is a very big change" that the "very delicate and important area of criminal justice" would cease to be intergovernmental in nature and become part of mainstream EU activity (Q S50).

6.17.  Professor Shaw, on the other hand, said that the requirement for unanimity in this area was "broadly seen by many as a major obstacle to effective decision-making" (Q E2). This was a point supported by Mr Straw, who pointed to the difficulties in agreeing by unanimity a Convention on the mutual recognition of driving disqualifications (Q E475). The NSPCC raised a similar point in relation to the recent proposed Framework Decision on the recognition of prohibitions arising from convictions for sex offences against children.[105] That proposal was intended to ensure that a disqualification from working with children imposed in one Member State would be recognised and enforced in another. It aimed to prevent convicted offenders from escaping such prohibitions by moving to another Member State. Ms Spencer Chapman, NSPCC European Adviser, noted that despite general agreement in the Council that legislation on this matter was important, unanimity was not achieved and the proposal had not been adopted (Q G16).

6.18.  Sir David Edward considered it important to bring the Third Pillar into the First Pillar for two reasons: first, he thought that the line of demarcation between Third Pillar and Community activities was becoming increasingly difficult to draw;[106] and second, he considered the move important to ensure that measures in the field of criminal law and policing were subject to proper parliamentary scrutiny and judicial control (p E142). The Law Society of England and Wales were also of the view that the pillar structure in the EU had allowed EU justice and home affairs policy to develop outside the framework of democratic accountability and judicial scrutiny and for that reason strongly supported the merging of the pillars (p E99).

6.19.  The merging of the First and Third Pillars will establish a more coherent and more easily understood and applied scheme of EU competence in the areas covered. The changes in legislative procedure (considered below) will at the same time facilitate the passing of EU legislation by removing the need for unanimity. Whatever view may be taken about the merits of extending QMV, there will, in respect of any EU legislation that is passed, be increased scrutiny and accountability through the European Parliament and an extended role for the ECJ.

6.20.  The merging of the Pillars will have the effect of bringing criminal law and policing within the new Title V TFEU framework. This is clearly a significant change and we consider the consequences of this move below.

a. Changes to legislative procedure

6.21.  For the most part, measures adopted under the new Title V will be adopted in accordance with the ordinary legislative procedure, i.e. qualified majority voting and co-decision with the European Parliament. The main exception to this rule is that measures relating to family law will continue to be adopted by unanimity and consultation (discussed further below).

6.22.  Many witnesses saw benefits in a move to QMV in this area. The Law Society of Scotland saw this as "one of the concrete benefits" of reforms proposed by the Treaty of Lisbon. In their view, the move would provide welcome consistency, transparency and comprehensibility (p E163). JUSTICE concluded that the current system of unanimity was "inappropriate" for an EU of 27 Member States and believed that, in theory, the move to QMV should result in legislation passing more quickly through the Council, with fewer concessions being granted to individual Member States (p E154). Maria Fletcher called the change "a most welcome development" which she hoped might prevent "political stagnation" in the decision-making process and improve the quality of EU legislation given that the veto had often resulted in legislation being agreed at the "lowest common denominator" (p E150). This was a view echoed by Fair Trials International (FTI), which said that the new rules "should improve efficiency by increasing the probability of proposals being approved, and decreasing the likelihood of governments blocking proposals" (p E146). The Law Society of England and Wales also highlighted the benefits of the move to QMV in the area of criminal law and policing, which they agreed would speed up the decision-making process and ensure that particular Member States could not delay or block specific proposals (p E100).

6.23.  However, the Freedom Association opposed the introduction of QMV in the area of criminal law. In its view, this area involved "fundamental national issues" and should be a matter for the UK Government (p E153). The Brethren Christian Fellowship took a similar view, seeing extension of QMV as being "at the expense of national sovereignty and the very fine influence of British courts" (p E125). JUSTICE also noted that the move to QMV would not necessarily benefit the citizen, as this would depend on the content of EU legislation being passed, a concern shared by the Law Society of England and Wales (pp E154, E100).

6.24.  Professor Peers, for Statewatch, pointed out that the removal of the veto meant that if the UK decided to participate in a measure under Title V (the UK has the right to choose whether to opt in to Title V measures—see below), there was a risk that it would be bound by a measure with which it did not, in the end, agree (Q E97). Professor Chalmers considered that there was a "real risk of diminution of influence" for the United Kingdom as a result of the move to QMV. Where previously in Third Pillar matters Member States were operating in the "shadow of the British veto" and were therefore more willing to listen and address UK concerns, the possibility that the UK might choose not to participate in a measure might make other Member States less inclined to try and accommodate the UK (p E127).

6.25.  Dr Mitsilegas considered that the application of the Community method to current Third Pillar matters would change how Member States operated as legislators in the Council as regards measures relating to criminal law (p E166). However, Professor Chalmers considered that the differences between QMV and unanimity were overstated. He suggested that unanimity did not slow down decision-making or prevent salient or contentious measures from being adopted. He pointed to the spirit of compromise and culture of consensus in Council Working Groups as the principal factor in ensuring that unanimity did not lead to the consistent blocking of proposals for EU legislation (p E127). Furthermore, as Professor Guild noted, in practice serious concerns of Member States were taken into consideration even where the measure was to be adopted by QMV. She pointed to the negotiation of the Bolkenstein Directive[107] as an example of this practice (Q E129).

6.26.  Mr Straw took issue with the assumption that the UK would always find itself in the minority. He pointed to the UK's influence in the Community as a result of its size and highlighted that "we can and we do win arguments" (Q E475). In practice, he thought that the JHA Council probably would adopt more legislation than it does at present and that there would be an increase in Union activity in the FSJ area (QQ E478, E480).

6.27.  The move to QMV in almost all areas of FSJ is a significant change. Notwithstanding the already existing spirit of compromise in the JHA Council, the move is likely to speed up decision-making in the Council and prevent legislation being adopted at the level of "lowest common denominator". It is likely that one effect of the change will be an increase in Union activity and the volume of legislation agreed in this area.

6.28.  The change will remove Member States' vetoes in respect of criminal law and policing and legal migration. This means that it will be possible for the UK, in some cases, to be bound by a measure in the area of criminal law or policing against its will, although the likelihood of this happening will be greatly reduced by the existence of a general right not to opt in for the UK (discussed further below). The corollary of this is that one Member State, or a small group, will no longer be able to block measures supported by the UK, subject to the possibility of using the emergency brake (discussed further below).

6.29.  The greater involvement of the European Parliament in FSJ measures was welcomed by many our witnesses[108]. Michael Cashman MEP emphasised that "for the first time these matters will be debated openly in a directly elected parliament" which would ensure that deals were not reached in secret behind closed doors (Q E389). Maria Fletcher considered that European Parliament participation would "lend legitimacy" to EU action in the field of criminal justice and was therefore "long overdue" (p E150). Professor Kaiafa-Gbandi was in no doubt that the European Parliament's involvement would reduce the democratic deficit of measures adopted in this area (p E158). FTI, the Law Society of England and Wales and the Law Society of Scotland also hoped that the co-decision process would bring greater democratic accountability and transparency in the field of criminal law and policing (pp E146, E99, E163). The Law Society of England and Wales were confident that the European Parliament would be "an effective player" in ensuring the balance between security, freedom and rights and could operate as an effective counterbalance to the "lowest common denominator" decisions currently adopted in the Council (p E99).

6.30.  The Centre for European Reform (CER) agreed that the move to QMV might speed things up in the Council, but warned that co-decision with the European Parliament could slow things down. They highlighted in particular the change in dynamic in FSJ measures which would be the likely result of the European Parliament's new co-decision power, considering that co-decision would be likely to "water down security-based EU measures", preferring safeguards for citizens. In their view, this would be a positive development: "the speed of JHA decision-making is not nearly so important as the quality of the decision taken" (pp E125-126).

6.31.  Professor Chalmers agreed that the European Parliament tended to see itself as "the guardian of civil liberties against the Member States and the Commission", demonstrated in a series of recent cases brought by the European Parliament against the Council.[109] As a result, in Professor Chalmers' view the European Parliament would probably successfully introduce a significant number of amendments (p E127). JUSTICE also thought that the European Parliament might provide a greater focus on the rights and interests of citizens and residents of the EU and for that reason "strongly" welcomed its new role (p E155). Baroness Ludford MEP, a member of the European Parliament's LIBE Committee,[110] appeared to confirm these expectations, suggesting that the change to the legislative procedure "would make life easier for progress of some of the more civil liberties measures" (Q E389). However, Professor Chalmers thought that this might translate into a greater use of the European Parliament's right under the co-decision procedure to reject a legislative proposal here than in other fields (p E127).

6.32.  While Statewatch generally welcomed the enhanced role of the European Parliament, Tony Bunyan, for Statewatch, sounded a note of concern. He pointed to the high number of first-reading deals made between the European Parliament and the Council since it gained co-decision powers in the Title IV area under the Treaty of Amsterdam (see Chapter 4). Mr Bunyan criticised this practice as opaque and as undermining the standing of the European Parliament, in particular as regards its reputation for focusing on individual rights (QQ E82-87). However, Philip Bradbourn MEP thought the practice of first reading deals was likely to grow (Q E398).

6.33.  Baroness Ludford pointed to the drivers for first reading deals, explaining that there is a benefit to be had in dealing with legislation as expeditiously as possible. However, she stressed the need to keep colleagues in the European Parliament well-informed and expressed some concerns about the availability of documents. This was something that she thought committees should, and could, address. Both she and Mr Cashman pointed out that where first reading deals were agreed by the European Parliament, it was generally because they would get a better deal for the citizen from the Council than at second or third reading (QQ E398, E400).

6.34.  A recent Working Document prepared for the European Parliament Working Party on Parliamentary Reform[111] highlights the growing practice of first reading, and early second reading, deals. In the LIBE Committee, principally responsible for existing Title IV measures, 19 of the 23 proposals considered were concluded at first reading and the remaining four at second reading. The Working Document points out that first reading deals demonstrate the flexibility of the procedure and the high degree of trust and willingness to cooperate in the institutions. On the other hand, it acknowledges the risks of lack of transparency and democratic legitimacy, as well as potential risks to the quality of the legislation. It makes proposals for improvements to ensure that decisions to pursue first reading deals are taken after careful consideration and only in appropriate cases and also to enhance transparency where first reading deals are concluded.

6.35.  The involvement of the European Parliament in new areas of FSJ is likely to impact on the adoption of measures in this field. We would expect the European Parliament to focus on protection of citizens' rights and to take an active role in shaping measures in the area of criminal law and policing.

6.36.  We welcome the steps being taken by the European Parliament to address the issues raised by first reading deals. We stress the need for transparency particularly in an area of such considerable interest to citizens as FSJ.

6.37.  As regards the retention of unanimity and consultation in family law, the Law Society of England and Wales saw differences in law and procedure in the Member States as "significant" and considered the retention of unanimity in this area (with the potential to transfer to QMV in the future) as sensible in order to safeguard national interest (p E100). The Brethren Christian Fellowship also had concerns about the EU's role in family law (p E125).

6.38.  In our session with Mr Straw, it became apparent that there was scope for argument as to whether a measure would be a family law measure, and thus subject to unanimity, or a broader civil law measure which would fall under the QMV regime. Rebecca Ellis, for the Ministry of Justice, considered that a decision would have to be taken in the context of each instrument proposed (QQ E487-492).

6.39.  A specific passerelle in new Article 81(3) TFEU would allow the Council, acting unanimously and after consultation with the European Parliament, to decide that certain aspects of family law may be adopted under the ordinary legislative procedure. A decision to move to QMV may only be adopted by the Council with the approval of all national parliaments—opposition by any one national Parliament, within six months of notification to it of the proposal, being sufficient to block the transfer.

6.40.  The family law passerelle is referred to in Clause 6(1)(d) of the European Union (Amendment) Bill, which provides that a Minister may not vote in favour of a decision to move to QMV in the Council unless parliamentary approval has been given. Clause 6(2) of the Bill makes it clear that the agreement of both Houses would be required.

6.41.  Professor Peers highlighted that the Article 81(3) TFEU passerelle had become even stricter as a result of the introduction of the new national parliamentary veto and therefore provided a greater safeguard for national interests. He concluded that it was "a significant change, and in fact protects national parliaments and protects the specificity of family law decision-making more effectively than the existing Treaty does" (QQ E103-104).

6.42.  The retention of unanimity in matters of family law will provide an important safeguard to ensure that family law measures agreed at EU level do not negatively impact on UK law. However, it is not always clear what constitutes family law and this is likely to be a matter for some debate. We expect that an assessment would have to be made in each case. This is likely to be more important for other Member States as the UK will be able to choose whether to opt in to any civil or family law measure in any case.

6.43.  The passerelle provision in Article 81(3) TFEU is stronger than the existing passerelle in Article 67(2) TEC in providing that national parliaments can directly veto a proposal to make use of it. As discussed in Chapter 3, thought will have to be given as to how this right of veto will be implemented in the UK. A further protection is provided by the European Union (Amendment) Bill as the approval of both Houses is required before a Minister can vote in favour of the use of the passerelle in the Council of Ministers.

b. The emergency brake and enhanced cooperation

6.44.  Measures proposed under Articles 82(2) and 83 (Judicial Cooperation in Criminal Matters) are subject to emergency brake provisions, complemented by provisions to facilitate enhanced cooperation. Under Articles 82(3) and 83(3), any Member State can pull an emergency brake where it considers that the draft legislation "would affect fundamental aspects of its criminal justice system". The matter is then referred to the European Council and the ordinary legislative procedure is suspended. If the European Council arrives at a consensus within four months, the matter is referred back to the relevant Council for continuation of the legislative procedure. Where no agreement is reached, then the ordinary procedure remains suspended but if at least nine Member States wish to proceed with the measure, they have to notify the European Parliament, the Commission and the Council and authorisation for enhanced cooperation is deemed to have been granted.

6.45.  It should be noted that the emergency brake does not apply to all areas of criminal justice. Cooperation envisaged under Article 82(1) is not subject to an emergency brake provision. This paragraph of the Article provides for measures: (a) to facilitate mutual recognition of judgments; (b) to prevent and settle conflicts of jurisdiction; (c) to support the training of the judiciary and its staff; and (d) to facilitate cooperation between judicial authorities as regards criminal proceedings and enforcement of decisions.

6.46.  Articles 86 (European Public Prosecutor) and 87 (Police Cooperation) provide variations on the emergency brake and enhanced cooperation provisions. Article 86 requires unanimity voting and provides that in the absence of unanimity a group of at least nine Member States may refer the matter to the European Council for discussion. Again, in the absence of consensus after four months, if at least nine Member States wish to proceed with the measure then they have to notify the European Parliament, the Commission and the Council and authorisation for enhanced cooperation is deemed to have been granted. Similarly, under Article 87(3) unanimity is required for measures concerning operational cooperation between law enforcement authorities. In the absence of unanimity, a procedure mirroring that provided for in Article 86 applies.

6.47.  Article 20 TEU and Articles 236-334 TFEU set out the provisions on enhanced cooperation in more detail. They reflect the existing provisions on enhanced cooperation in the Treaties.

6.48.  Professor Dutheil de la Rochère explained that the idea behind the emergency brake is to make the approximation of criminal law more palatable to Member States by permitting them a get-out clause in cases where they consider that fundamental aspects of their criminal justice systems will be affected (p E139). Ms Julia Bateman, for the Law Society of England and Wales, considered that proposals in policing and criminal justice "do have a particular resonance in terms of national law and procedure" and the Law Society saw the emergency brake as a "sensible mechanism" to offset some of the risks in removing the national veto from this sensitive area (Q E438 & p E100). Ms Fletcher considered that the inclusion of the emergency brake and enhanced cooperation provisions indicated that criminal justice remained an area requiring additional safeguards for Member States (p E151). JUSTICE saw the emergency brake as a further useful safeguard against the UK being bound by the text of a measure with which it did not agree, although its possible use by other Member States could replicate some of the very problems the introduction of QMV sought to avoid, i.e. delays in decision-making and the watering down of proposals (p E 156). Professor Shaw pointed out that Member States would generally lose political capital in pulling the emergency brake (Q E41).

6.49.  The Freedom Association had concerns about the emergency brake. They saw it merely as a "rhetorical device to enable our government to suggest we have control over these matters, while making it easy for them to acquiesce privately to EU proposals" (p E153). Mr Straw stressed that there was a legal basis for the emergency brake, and that the UK would be prepared to use it if necessary. However, he agreed that the significance of the brake derived to a large extent from its existence rather than its use: the threat of its use would be sufficient to strengthen a Member State's negotiating hand (QQ E502-506).

6.50.  Professor Shaw saw no reason why the UK would not be able to use the emergency brake in the same way as other Member States. She said, "I do not see that there is going to be in any sense a ruling out of the UK and that just because the UK has decided to participate in this particular measure, it is somehow subject to a duty of good faith and a duty of participation that does not apply to any other Member State" (Q E38). Professor Chalmers also considered that the UK would be legally entitled to refer a matter to the European Council using the emergency brake procedure. However, in his view, the political costs to the UK would be significant (p E127). Mr Donnelly considered that it would be a matter for "careful reflection" for the UK Government how they approached the exercise of the emergency brake where they had availed themselves of their right to opt in to a measure. He also thought that the political cost to the UK of pulling the emergency brake would be greater than for other Member States given the UK's right not to participate (p E134). Mr Straw recognised the special position of the UK indicating that, having opted in, a decision to pull the brake would be taken in extreme cases where an unforeseen amendment or difficulty arose during the negotiation which affected fundamental aspects of the UK criminal justice system (Q E502-503).

6.51.  Professor Chalmers suggested that other Member States might challenge a UK referral to the European Council before the ECJ, arguing that the existence of the UK opt-in restricted the right of the UK to make use of the emergency brake. The argument would be, he explained, that operation of the emergency brake was on the basis that a proposal affected fundamental aspects of the Member State's criminal justice system. If a proposed measure affected fundamental aspects of the UK's criminal justice system, the UK should simply choose not to opt in. If it decided to opt in it would be difficult for the Government then to argue that the proposal affected fundamental aspects of the UK criminal justice system (p E127). Mrs Claire-Françoise Durand, Acting Director-General, Commission Legal Services, did not agree. She referred to the subjective language of the Treaty itself, noting: "it is hardly controllable by the Court because the sentence starts with 'Where a member of the Council considers that' it affects …" She observed that the notion of consensus in European Council meetings made it unlikely that other Member States would try to circumscribe the right of a Member State to operate the emergency brake (QQ E351-352). Mr Straw also alluded to the consensus approach in the European Council and thought that it would be "extremely rare" for the ECJ to adjudicate on decision-making in the European Council (Q E507).

6.52.  In any event, witnesses thought that the emergency brake was likely to be used sparingly. Professor Shaw said "I absolutely do not think this is a symbolic provision but I certainly do not think anybody imagines it is going to be in even annual use" (Q E41). Professor Dashwood, for the Bar Council, also thought it would be used "very infrequently" (Q E319).

6.53.  The introduction of an emergency brake is a noteworthy development which is of particular importance to Member States which do not have the right not to opt in to FSJ measures. Although it is unlikely to be frequently used in practice, it is likely to impact on negotiations in the Council through the possibility of its use.

6.54.  We see no reason why the UK should not be able to use the emergency brake but in practice the UK's right not to opt in to individual measures is likely to diminish the occasions where use of the emergency brake will even arise for consideration in the United Kingdom.

6.55.  The emergency brake is provided for in the Treaty itself and has the same legal value as any other Treaty provision. We consider the prospect of a challenge before the ECJ to a Member State's use of the emergency brake to be remote.

6.56.  Witnesses were divided as to whether facilitating enhanced cooperation was a good idea. The Law Society of England and Wales saw the facilitation of enhanced cooperation as "an important corollary", even a "necessary counterpart", to the emergency brake (Q E438 & p E100) and Professor Dutheil de la Rochère described it as a "reasonable balance" (p E139). Martin Howe QC was "broadly positive" about this development: in his view, one should not expect an organisation of 27 Member States not to adopt a specific measure simply because one Member State objected. Enhanced cooperation was, he said, "a logical corollary for greater freedom of action" (Q E241).

6.57.  The Law Society of England and Wales cautioned against the emergence of an area of FSJ characterised by a "patchwork of legal rights and obligations". In their view, this could undermine the "overall coherence" of EU law in this area and call into question the goal of a "genuine area of freedom, security and justice" (Q E438 & p E100). Professor Shaw was not in favour of having "more and more variegated, concentric, overlapping, underlapping circles of Member States involved in different measures". She pointed out that such an approach was not in the best interests of transparency and maximum public understanding and participation in the EU (Q E34). James Flynn QC, for the Bar Council, saw the mixture of "different schemes, different compositions and different institutional arrangements" as "a bit ridiculous". He regretted that the effect of all this would be that FSJ would become a subject for specialists as a result of its complexity (Q E336). JUSTICE also highlighted the "undesirable aspects" of creating a "two-tier" system in which Member States' obligations differed (p E156). Florian Geyer, Centre for European Policy Studies, considered this to be a particular problem in light of the fact that police and judicial cooperation was developed as a "flanking measure" of opening up borders within the internal market. The rationale was that "As we may be losing security by opening up borders, we will enhance cooperation of judges and policemen and we will make it easier not to rely on borders as gatekeepers of security". In light of this, differentiation could lead to particular difficulties (Q E158).

6.58.  Professor Dashwood pointed to another potential problem with enhanced cooperation, which was "defining its boundaries and preventing spill-over". Member States might disagree as to the extent to which Member States not participating in one measure should have the right to participate in another separate but related measure. However, he concluded that a "measure of differentiation is a price that we have to pay for the great enlargement, which I think was a very necessary thing" (Q E319, Q E336).

6.59.  Professor Guild was more critical of enhanced cooperation provisions. She was concerned that they undermined the legitimate concerns of some Member States by allowing the agreement by a limited group of Member States of a proposal which would in many cases ultimately be adhered to by a greater number of Member States, as in the case of the Prüm Treaty (Q E151).[112] Fair Trials International also suggested that the streamlined procedure for authorisation for enhanced cooperation might suppress discussion and debate and undermine efforts for a more consensual solution. It urged Member States not to use the enhanced cooperation provisions as a means to "bypass proper debate, scrutiny and assessment" (p E147). While recognising that in a Union of 27, some measure of variable geometry was inevitable, Sir David Edward saw disadvantages in the unequal application of the law and the ECJ's jurisdiction. He pointed out that a decision to undertake enhanced cooperation was to be taken as a "last resort" under new Article 10(2) TEU and concluded that enhanced cooperation would not be something "lightly adopted or conceded to a group of Member States". There was, he said, a "significant hurdle to be overcome" (Q S137). Maria Fletcher agreed that there might be "political reticence" about too frequent recourse to the enhanced cooperation provisions (p E151), although Dr Mitsilegas stressed that the momentum created by the simplified enhanced cooperation procedure should not be underestimated (p E169).

6.60.  Baroness Ludford MEP considered it unlikely that the enhanced cooperation provisions would be much used if past precedent was any indicator. She indicated that the Prüm Treaty was not undertaken as an enhanced cooperation measure. She also pointed out that there could be issues regarding the participation of MEPs who were not elected in Member States participating in the enhanced cooperation[113] (Q E401, Q E402).

6.61.  The Treaty of Lisbon facilitates enhanced cooperation in relation to judicial cooperation in criminal matters within Articles 82(2) and 83, the creation of a European Public Prosecutor (Article 86 - see below) and police cooperation within Article 87(3). It is not clear whether this will have a significant impact in practice. The procedure has not been used to date despite circumstances arising in which it may have been appropriate. However, there are diverging views on the extent of the need for cooperation in this area across the Member States and the negotiation of this flexible procedure suggests that some, at least, anticipate having recourse to it.

6.62.  Enhanced cooperation may lead to a patchwork of legislation but is a necessary element of flexibility in a Union of 27 Member States.

6.63.  Our attention was drawn to concerns regarding the Union's future external competence under the Lisbon Treaty and the impact on the area of FSJ where different levels of cooperation are envisaged, either through enhanced cooperation or by non-participation of the UK or Ireland under the opt-in arrangements. New Article 216 TFEU provides that the Union will have the competence to enter into international agreements where the conclusion of an agreement is "necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope".

6.64.  Mr Howe questioned how this external competence would work where the UK had chosen not to opt in to a particular proposal. He considered that the Protocol did not deal with this question and that the UK might find itself bound by external rules in areas in which it had not chosen to participate (QQ E224-233). Sir David Edward disagreed: he thought that where the UK had not opted in, the Union probably still had power to conclude external agreements, but to the extent that the UK had not opted in, the agreements would not bind the UK (QQ S123-125). Professor Dashwood also thought that while Article 216 could allow the conclusion of an international agreement in the context of enhanced cooperation, the agreement would bind the Union but not non-participating Member States (Q E321).

6.65.  Mrs Durand confirmed that the Commission's view was that the Union would have external competence where a measure had been adopted under the enhanced cooperation provisions, but any external agreement would only bind those Member States party to the enhanced cooperation. The external competences of Member States not party to the enhanced cooperation would not be affected (QQ E348-349).

6.66.  The Union would have external competence derived from a measure which had been adopted internally under the enhanced cooperation provisions but this would only extend to those Member States party to the enhanced cooperation.

THE RIGHT OF INITIATIVE

6.67.  Under the Treaty of Lisbon the right to propose EU legislation—the right of initiative—will generally rest with the Commission, although in some circumstances Member States (and in limited cases other institutions) have the power to make a proposal for legislation.

i. Arrangements under the existing Treaties

6.68.  While Title IV is subject to the "Community method" and therefore the Commission has exclusive right of initiative in respect of proposals for Community legislation, in Title VI the right of initiative is shared by the Commission and the Member States. In practice the majority of proposals emanate from the Commission, but any Member State may make a proposal for a Framework Decision and many have done so.[114]

ii. Position post-Treaty of Lisbon

6.69.  New Article 76 provides that measures in Chapters 4 and 5 of new Title V TFEU (i.e. measures relating to police and judicial cooperation in criminal matters—old Title VI TEU) shall be adopted on a proposal from the Commission or on the initiative of a quarter of the Member States. Thus some element of the Member States' right of initiative has been retained, albeit in a more limited form.

6.70.  The Law Societies welcomed the change. They considered that this would ensure a more coordinated and coherent approach to legislation, planned in line with long-term EU strategies rather than being based on topical national considerations (pp E99, E163).

6.71.  Maria Fletcher regretted the retention of any right of initiative for Member States under the Treaty of Lisbon. She pointed to practical experience of Member States' proposals, which in her view had been problematic to date: Member States tended to make proposals reflecting, to a disproportionate degree, domestic problems and proposals were often inadequately drafted. She considered that the Commission was better placed to submit proposals given that it acted in the interests of the Union and had the capacity and expertise to consult widely and conduct impact assessments (p E150). This was a view shared by FTI, which expressed regret that Member States would not be required to produce similar assessments when making use of their right of initiative (p E147).

6.72.  Not all proposals in the area of FSJ, 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.

JURISDICTION OF THE EUROPEAN COURT OF JUSTICE

i. Arrangements under the existing Treaties

6.73.  The ECJ's jurisdiction over FSJ measures is not uniform: a different regime applies depending on whether the measure in question has been adopted under the First or the Third Pillar. Sir Francis Jacobs was critical of the various rules surrounding the Court's jurisdiction, saying the resulting patchwork system is "widely regarded as opaque, incoherent and generally unsatisfactory" (p S148).

a. Title IV jurisdiction

6.74.  The ECJ's jurisdiction in respect of Title IV TEC measures is relatively extensive. As with other First Pillar measures, the Court can rule on applications for annulment of EC legislation where the Member States or the Commission have brought a challenge to the legality of the instrument (Article 230 TEC). It can also rule on actions for failure to act on the part of the Council, Parliament or Commission (Article 232 TEC) and in infringement actions brought against Member States for failure to fulfil obligations, for example, by incorrectly transposing EC legislation (Articles 226-7 TEC).

6.75.  The broad preliminary reference jurisdiction afforded to the Court under Article 234 TEC, which allows any court or tribunal of the Member States to refer questions relating to the interpretation of EC law to the ECJ for a ruling, is curtailed as regards Title IV measures. Article 68(1) TEC provides that preliminary references can only be made from national courts against whose decisions there is no judicial remedy under national law (i.e. courts of final appeal, such as for example the House of Lords in the United Kingdom). A blanket exception from the ECJ's jurisdiction is provided in Article 68(2) TEC in respect of measures taken under Article 62(1) TEC (removal of internal borders) relating to the maintenance of law and order and the safeguarding of internal security.

b. Title VI jurisdiction

6.76.  In contrast to the position under Title IV, the ECJ has only a limited jurisdiction over Third Pillar measures. Article 35 TEU gives the ECJ jurisdiction in relation to annulment actions, but not infringement proceedings. The ECJ also has jurisdiction to give preliminary rulings where the Member State in question has made a declaration accepting the jurisdiction of the ECJ. Member States can opt to limit the preliminary ruling jurisdiction to courts of final appeal or alternatively to allow any national courts to refer a question to the ECJ. 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 ECJ for a ruling.[115] The UK has not accepted the Court's jurisdiction. Again, there is a blanket exception to the Court's jurisdiction on review of the validity or proportionality of police or law enforcement operations or the exercise of responsibilities incumbent on Member States with regard to the maintenance of law and order and the safeguarding of internal security.

ii. Position post-Treaty of Lisbon

6.77.  Under the Treaty of Lisbon, the whole area of FSJ will come under the general jurisdiction of the Court. This means that annulment actions, infringement proceedings and actions for failure to act will be possible in relation to any FSJ matter. Preliminary references will be available for any national court. However, the Court still has no jurisdiction to review the validity or proportionality of operations carried out by the police or by law enforcement services or the exercise of responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.[116]

a. Extent of increased jurisdiction of the Court

6.78.  The extension of full jurisdiction to all areas of FSJ by the Treaty of Lisbon entails three principal changes to the current arrangement.

6.79.  First, under new Article 267, preliminary references will for the first time be possible from all national courts and tribunals on questions relating to asylum, immigration and civil law matters (i.e. existing Title IV TEC), and not just from courts of final appeal.

6.80.  The extension of the preliminary reference jurisdiction in this area was welcomed by most of our witnesses. In Professor Guild's view, the change was "fundamental and the most important change which is taking place in this field" (Q E166), and she expressed strong support for the extension. Professor Peers explained one of the problems with the existing more limited jurisdiction: "In the absence of [the ECJ] getting asylum cases, it is impossible to talk about establishing a common European asylum system and to have uniform standards, or any move towards uniform standards, across the European Union" (Q E92). Jane Golding, for the Law Society of England and Wales, considered the increased jurisdiction important in order to improve consistency of interpretation and she saw an advantage in having a "unified judicial architecture" (Q E464).

6.81.  Professor Chalmers suggested that there was a risk that the ECJ might become an asylum court because, unlike most areas of EU law, asylum cases were the sorts of cases that were regularly before national courts (Q S29). However, Professor Peers considered it premature to assume that a large number of asylum cases would find their way to the Court. He said that of the 400,000 or so asylum cases each year in the EU, only some were pursued before the courts, and of those, even fewer would be referred to Luxembourg for a ruling. He concluded, "I am more concerned that it is not getting asylum cases than by the number of cases it might get" (Q E92).

6.82.  Second, new Article 267 TFEU preliminary references will be available in all Member States in the area of criminal law and policing (i.e. existing Title VI), from any national tribunal or court.

6.83.  The increased preliminary reference jurisdiction of the Court in this area was welcomed by Dr Mitsilegas. He considered that this would enable "a meaningful dialogue between national courts and the ECJ on matters which … may have fundamental implications for both the Union and Member States" (p E166). The Law Society of England and Wales considered that the enhanced role of the Court would "facilitate consistency, clarity and legal certainty" (p E100).

6.84.  Third, infringement proceedings will be possible in respect of instruments adopted in the area of criminal law and policing. This means that the Commission will, for the first time, be able to take action when Member States have failed to implement adequately instruments adopted in this field. Mr Geyer considered that there would be a clear advantage for the citizen if the Court had jurisdiction to hear infringement cases brought by the Commission in this area (Q E175). Maria Fletcher hoped that the new power would "encourage and secure a better application and enforcement of EU criminal law at the national level" (p E151).

b. General views on the Court's enhanced jurisdiction

6.85.  Many witnesses saw the changes to the jurisdiction of the ECJ as a positive step. Professor Dutheil de la Rochère called the improvement "significant" (p E140) and Maria Fletcher thought the changes would "secure more effective judicial oversight of EU developments and enhance legal certainty" (p E151). The Law Society of Scotland saw the extension of the ECJ's jurisdiction as "the natural concomitant of the move to qualified majority voting" (p E164) and Professor Wallace saw the change as "hugely important" and something which she personally welcomed (Q S170). However, the Freedom Association opposed the enhanced role of the ECJ in the area of FSJ; indeed, it saw a need to reduce the Court's role here (p E153). The Brethren Christian Fellowship also regretted the greater involvement of the ECJ, which it thought would come at the expense of national sovereignty (p E125).

6.86.  Sir Francis Jacobs considered in detail the implications of the new jurisdiction of the Court. He suggested that there would be advantages and disadvantages. In terms of advantages, the Treaty of Lisbon, in Sir Francis' view, "establishes a clear and coherent system of jurisdiction to replace the present confusing jumble". More substantively, he considered that the Court's new powers of judicial review and interpretation of FSJ measures would be valuable. He noted that "Experience has shown that there is often little benefit in international measures if there is no mechanism for enforcement and no method of securing uniform interpretation". Sir Francis also referred to broader considerations, noting the wide respect in which the European Union was held across the world. He considered that it would be "paradoxical, and perhaps unacceptable, if the Union's activities in fields impinging most seriously on civil liberties were to remain immune to the jurisdiction of the European Court of Justice".

6.87.  As for possible objections to the extension of the Court's jurisdiction, Sir Francis highlighted two: the argument that the subjects concerned are at the very heart of national sovereignty; and the concern that Union measures and Court decisions might not take full account of the special features of UK arrangements in this area. In respect of the former, Sir Francis suggested that it was precisely because of the importance of these areas that full judicial review and jurisdiction should be available. As regards the UK-specific concern, Sir Francis pointed out that the UK had the right to intervene in any proceedings before the Court and explain in detail any special features which may apply in the UK. In this regard, Professor Guild considered that the Court showed "substantial deference to the difference in the national systems" (Q E130). Sir Francis referred to the need for a balance between the possible disadvantages of ECJ decisions for the UK and the wider interest of having an effective system of judicial review for other Member States and the EU as a whole. He concluded that this "wider interest does not seem to be much recognised in the UK" (p S149).

6.88.  The increase in the jurisdiction of the ECJ is a significant development. It replaces the complex existing regime of jurisdiction with a clear and uniform rule and is likely to increase consistency and legal certainty in the application of EU law. If the Lisbon Treaty enters into force, the ECJ will have jurisdiction over all new Title V TFEU measures[117]. The position as regards existing Title VI TEU measures is discussed in the section on transitional provisions below.

6.89.  For the first time, Member States will be able to be taken to the Court for failure to implement properly EU legislation in the area of criminal law and policing. This is likely to encourage them to implement more effectively measures agreed in this area. Ultimately, the question of the interpretation of an EU instrument will be a matter for the Court and its rulings will be binding on the United Kingdom. As a result it is important that any special features of UK law in this area be taken into account by the Court and in this regard, the right of Member States to intervene in any action before the Court is significant.

c. Practical effects of the Court's enhanced jurisdiction

c(i) Increase in workload

6.90.  Some witnesses thought that extending the Court's jurisdiction would have the effect of multiplying the number of preliminary references the Court received (pp S149, E140). Professor Chalmers referred to the areas of asylum, immigration and crime as "the very heartlands of national judiciaries" and suggested that there might well be "significant deployment of EC law in national courts in these fields and considerable [preliminary] references". He noted that the Court was currently operating close to its full capacity and was already over-stretched. He expressed concern that the sheer volume of judicial activity in the new Title V fields could result in the "crowding out" of other areas of EU law, particularly given the requirement in Article 267 TFEU that priority be given to cases where a party was in custody (p E128 & Q S29).

6.91.  However, not all witnesses agreed that there would be a significant increase of cases as a result of the new jurisdiction. Mrs Durand questioned whether there would in fact be greater numbers of cases before the Court: she pointed out that in recent years there had been very few cases in these areas (Q E369). Professor Guild noted that since the ECJ was granted preliminary reference jurisdiction from courts of final instance in the area of existing Title IV in 1999, there had only been one preliminary reference to the Court on an asylum issue. She concluded that "It does not seem at the moment that the area of borders, immigration and asylum are going to overload the Court", although she did suggest that reference regarding questions of civil justice might be more frequent (Q E167). Ms Golding indicated that the general feeling of the Law Society was that they did not see that there would be a sudden increase in cases as a result of the extended jurisdiction (Q E469) and Professor Peers was not convinced that there would be an unmanageable number of cases (Q E92).

6.92.  If there were a significant increase in workload, some witnesses thought that the Court might find it difficult to cope. Sir Francis Jacobs suggested that the extension of jurisdiction "may raise serious problems, and may very soon make it necessary to undertake a full review of the Union's judicial system" (p S149). Sir David Edward pointed out that new Article 267 required the Court to act with the "minimum of delay" where a case involves a person in custody. He noted that delays involved in preparing and translating submissions, oral hearings, deliberation and judgment could "with the best will in the world" stretch to a significant number of months (p E143).

6.93.  Professor Peers thought that some mechanism would probably be developed to deal effectively with any increase that might result (Q E92); and the Commission did not think that the Court would be unable to cope with its new jurisdiction. Mrs Durand pointed to the Court's recent moves to put in place a procedure for accelerated treatment of FSJ questions in cases where individuals were in custody (Q E369).[118] A number of our witnesses referred to this new procedure, which Professor Guild called "a very sensible approach" (QQ E92, E168). However, Sir David Edward warned of the need to balance the obligations of the Member States under Article 6 of the ECHR (the right to a fair trial) against the advantages of a uniform interpretation of FSJ acts. In any case, even the minimum of delays would be likely to pose serious problems for the 110/140 day rules in Scottish criminal procedure which require that where an accused has been remanded in custody to await trial, the preliminary hearing must take place within 110 days of full committal, and the trial itself must commence within 140 days (p E143).[119]

6.94.  The ability of the ECJ to handle its existing workload, and in particular the time taken to dispose of preliminary references by national courts, is already a matter of concern. The CILFIT criteria established by the ECJ give national courts and the ECJ no real scope for declining to make or hear a reference in any case open to any doubt.[120]

6.95.  The existing preliminary reference jurisdiction under Title IV and Title VI has not given rise to a large volume of cases. But the Treaty of Lisbon would open the way, even though probably only over a period, for an increase in the volume of preliminary references which could prove detrimental to both European and national legal systems and to individual litigants. The new accelerated procedure for cases where an individual is in custody represents only a limited amelioration in one particular sphere. This may not be sufficient to resolve the problems that arise in jurisdictions with limitations regarding the time spent in custody before trial or limitation periods for the conclusion of criminal proceedings. The question of delay is a general one relevant to all criminal and civil proceedings in the area of FSJ. Member States are bound under Article 6 of the ECHR to ensure that both criminal and civil proceedings are determined fairly and within a reasonable time.

c(ii) Shape of the Court's docket and judges' expertise

6.96.  Professor Chalmers suggested that the new jurisdiction of the Court could significantly change the profile of its docket (p E128).[121] Martin Howe QC expressed some concern about the need for expertise in the FSJ area in the ECJ. He noted that in the area of intellectual property law for example, an increasing number of judgments were being delivered by ECJ judges without much expertise in that area. Given the current appointments system, Mr Howe saw little scope for ensuring that appointments to the Court included judges with criminal law experience, unless Member States themselves took into account the need for judges with a criminal law background in making their individual nominations (QQ E257-E261).

6.97.  This was also seen as a potential problem by Sir David Edward, commenting on "the degree to which members of the Court can be expected to deal with an ever-growing range of legal subject-matter". Sir David considered that this problem would be particularly acute in respect of preliminary references, given that under the new Treaty any national court would be permitted to request a ruling from the ECJ. As Sir David explained, "the ECJ is often faced with references in which there has been no detailed discussion of the issue in any national court, and the document referring the case written by the national judge may contain little or no explanation of the factual or legal background." The problem was exacerbated because the Commission, which often provides helpful assistance to the Court, was required to plead in the language of the case and was not always able to provide legal agents sufficiently familiar with the language in question who possessed knowledge of the law in the area concerned. He concluded that "This could present a serious problem in a field as technical and nationally oriented as criminal law and procedure". A possible solution, he suggested, might be to set up a special tribunal which could sit once every three to six months to deal with, for example, cases arising out of the Brussels Regulation[122]. Thinking regarding the structure of the Court was, he said, the Cinderella of all inter-governmental conferences (p E143, QQ S132-134).

6.98.  Klaus-Heiner Lehne MEP considered that some progress had been made with new Article 255 of the TFEU which provided for the establishment of a panel of senior lawyers and judges to give an opinion prior to appointment on the suitability of candidates to perform the duties of a judge or advocate-general. He did not think it acceptable that the nomination of judges should be solely a matter for heads of government. However, he was not convinced that broader reform would be feasible or even desirable. In his view, shared by Mr Cashman, the ECJ would have to decide how to organise itself to ensure that the relevant skills were available in appropriate cases (QQ E417-420).

6.99.  The expansion of the ECJ's jurisdiction over criminal and civil matters is over time bound to be matched by an expansion in the range of the legal issues coming before it. The ECJ to date has had limited experience of ordinary criminal and civil proceedings and it has not been necessary for Member States to nominate judges with any such experience.

6.100.  The Treaty of Lisbon will continue to provide for one judge per Member State (which in practice means nominated as a candidate by that Member State) and for any judge to be "appointed by common accord of the governments of the Member States" for a six-year, renewable period. The creation of the new panel under Article 255 "to give an opinion on candidates' suitability" is a welcome step, but it is unclear how far, if at all, such a panel will be able to influence Member States to nominate for consideration candidates having particular expertise or experience which it would benefit the ECJ to have.

6.101.  Further, the unchanged six-year, renewable tenure appears in principle undesirable. The manner and tenure of appointments and the general working of the ECJ are all matters which may require revisiting.

d. Effect of changes to the rules on standing

6.102.  Changes to existing Article 230 TEC, new Article 263 TFEU, which permit individuals to challenge the legality of an act or regulatory act in certain circumstances, may have an impact on the Court's role in the area of FSJ (pp E140, S149). New Article 263 TFEU expands the possibility for individuals and legal persons to challenge regulatory acts by removing the requirement that the acts in question be of "individual concern" to the applicant: instead, regulatory acts need only be of "direct concern" and not entail implementing measures. Neil O'Brien suggested that the new rules on standing would permit everyone involved in asylum appeals (some 80,000 people in the UK every year) to go to the ECJ to seek redress, which would be a significant increase in the Court's workload (Q S97).

6.103.  It is unlikely that the change to the standing rules will itself result in a flood of asylum cases. New Article 263 TFEU allows challenges to the legality of EU legislation, but challenges in domestic asylum cases tend to relate to how asylum laws are interpreted or applied in practice. Challenges on these grounds would come before the ECJ in the form of preliminary references under new Article 267 and not under new Article 263. In any event, Article 263 still requires that an individual show that an act of an EU institution or body is of "direct concern" and this is likely to remain a significant limitation in practice.

PASSERELLES IN FSJ

i. Arrangement under the existing Treaties

6.104.  There are currently two passerelles in the area of FSJ. The first can be found in Article 67 TEC and allows the Council to move from unanimity to QMV in Title IV TEC areas. It has been used once as outlined above to move the areas of border checks, free movement and some immigration aspects from unanimity to QMV.[123] The second passerelle is found in Article 42 TEU and allows Member States to move from unanimity to QMV in areas of the Third Pillar. It has never been used: although its use was proposed in 2006 by the then Finnish Presidency, there was insufficient support from Member States.[124]

ii. Position post-Treaty of Lisbon

6.105.  Aside from the general passerelles in the Treaty, which are set out in Chapter 3, there are a number of specific passerelle-type provisions in new Title V TFEU. These are:

• Article 81(3)—allows the Council to decide to transfer some aspects of family law to QMV and co-decision. Any decision must be adopted by unanimity following consent of the European Parliament.
• Article 82(2)(d)—allows the Council to decide to extend the list of specific aspects of criminal procedure which can be the subject of minimum rules to facilitate mutual recognition of judgments. Any decision must be adopted by unanimity following consent of the European Parliament.
• Article 83(1)—allows the Council to decide to extend the list of areas of crime which can be the subject of minimum rules defining crimes and sanctions. Any decision must be adopted by unanimity following consent of the European Parliament.
• Article 86(4)—allows the European Council to extend the powers of any future European Public Prosecutor to include serious crime having a cross-border dimension. Any decision must be adopted by unanimity following consent of the European Parliament and consultation of the Commission.

6.106.  Given that all the FSJ passerelles require unanimity in the Council or the European Council, there is no possibility that changes will be made without the consent of the United Kingdom government[125].

NATIONAL PARLIAMENTS AND DEVOLVED ADMINISTRATIONS

6.107.  Currently national parliaments have no special role in the area of freedom, security and justice. National parliaments do, however, review proposals in this area for compliance with the subsidiarity principle among other considerations, as they do proposals in all areas of EU action. Two proposals in FSJ have been the subject of COSAC subsidiarity check exercises.[126]

6.108.  Under the Treaty of Lisbon, a specific role for national parliaments in the area of FSJ is envisaged. Article 69 provides that national parliaments ensure that proposals under Chapters 4 and 5 (i.e. criminal law and policing) comply with the principles of subsidiarity and proportionality using the yellow and orange card procedures (see Chapter 11). The Centre for European Reform pointed out that under the Protocol, the threshold required to trigger the yellow card was lower in FSJ than in other areas: a quarter of the parliamentary votes is required, as opposed to a third in other areas of EU law (p E127).

6.109.  Sir David Edward emphasised the need for effective machinery to ensure that the UK Parliament was fully informed as to the potential effects of FSJ proposals on the different internal judicial systems within the United Kingdom (p E142). This was particularly important as the areas concerned were devolved to the Scottish Parliament and Executive under the Scotland Act 1998. The Law Society of Scotland also stressed the importance of ensuring maximum involvement of devolved institutions in relation to proposals which fell within their competence. They pointed to two potential difficulties: the short timescale permitted for a review of subsidiarity in relation to a particular proposal, giving little time for full consultation with devolved administrations; and the potential disagreement between devolved parliaments and Westminster regarding a particular proposal and the absence of any mechanism for resolving such tension (p E164).

6.110.  Mr Jack Straw MP pointed to the "very established arrangements" for cooperation between the UK Government and the devolved administrations. A Joint Ministerial Committee on Europe, chaired by the Foreign Secretary and composed of UK Ministers and representatives of the devolved administrations, discussed issues arising from devolution. A protocol dealt with matters such as attendance at EU meetings. He noted that the Solicitor-General for Scotland had attended the last two JHA meetings and was fully involved in the briefings. He had spoken on a proposal which raised issues for Scotland. Mr Straw observed that there was no problem in practice. Wales and Northern Ireland did not raise specific problems in this area because Wales was not a separate legal jurisdiction and differences with Northern Ireland were slight. Furthermore, justice and home affairs issues were not devolved under the Welsh and Northern Irish devolution settlements (Q E524-526).

6.111.  There is a need to ensure that the Scottish administration is fully engaged with relevant UK Government departments and with the UK Parliament on matters of civil and criminal justice and policing at EU level.

FSJ policy areas—changes in scope

6.112.  The Treaty of Lisbon introduces a number of changes to the existing provisions of Title IV and Title VI. We consider each of the policy areas in turn.

BORDERS, ASYLUM, IMMIGRATION AND VISAS

i. Arrangements under the existing Treaties

6.113.  Articles 62-64 set out the Community's competence in the area of borders, asylum and immigration. Article 62 provides that the Council shall adopt:

• measures with a view to ensuring the absence of any controls on persons when crossing internal borders;
• measures on the crossing of external borders, which shall establish standards and procedures for checks on persons at borders and rules on visas for intended stays of no more than three months; and
• measures setting out conditions under which third-country nationals shall have the freedom to travel within the territory of the Member States during a period of no more than three months.

6.114.  Article 63 provides that the Council shall adopt:

• measures on asylum concerning the allocation of responsibility for assessing asylum claims; minimum standards on the reception of asylum seekers; minimum standards on qualification as refugees; and minimum standards on procedures for granting or withdrawing refugee status;
• measures on refugees and displaced persons setting out minimum standards for temporary protection and promoting a balance of effort between Member States in receiving and bearing the consequences if receiving refugees and displaced persons;
• measures on immigration policy relating to conditions of entry and residence and standards on procedures for the issue of long-term visas and residence permits and concerning illegal immigration and illegal residence, including repatriation of illegal residents; and
• measures defining the rights and conditions under which a third-country national legally resident in one Member State can reside in another.

6.115.  Article 64(2) allows the Council to adopt provisional measures where a Member State is confronted with an emergency situation characterised by a sudden inflow of third-country nationals.

ii. Position post-Treaty of Lisbon

6.116.  The new provisions on borders, asylum and immigration are set out in new Articles 77-80 TFEU. Article 77(1) provides that the Union shall develop a policy with a view to ensuring the absence of internal border controls, carrying out checks at external borders and introducing an integrated management system for external borders. Article 77(2) provides that to achieve these goals, the Council and the European Parliament shall adopt measures concerning:

• the common policy on visas and short-stay residence permits;
• checks to which those crossing external borders are subject;
• conditions under which third-country nationals are free to travel within the Union for a short period;
• the gradual establishment of an integrated management system for external borders; and
• the absence of controls on persons crossing internal borders.

6.117.  Article 77(3) provides that where action is necessary to facilitate the right to move and reside freely within the Union and the Treaties have not provided the necessary powers, the Council may adopt measures concerning passports, identity cards, residence permits or other such documents acting unanimously following consultation of the European Parliament.

6.118.  Article 78 deals with the development of a "common policy on asylum, subsidiary protection[127] and temporary protection". Measures for a common asylum system shall comprise:

• a uniform status of asylum for third-country nationals valid throughout the Union;
• a uniform status of subsidiary protection for third-country nationals;
• a common system of temporary protection for displaced persons in the event of a massive inflow;
• common procedures for granting and withdrawing uniform asylum or subsidiary protection status;
• criteria and mechanisms for allocating responsibility for asylum claims;
• standards concerning reception of applications for asylum or subsidiary protection; and
• partnership and cooperation with third countries to manage inflows of persons applying for asylum or subsidiary or temporary protection.

Article 78(3) mirrors existing Article 64(2) on emergency situations.

6.119.  Article 79 sets out the Union's competence to develop a common immigration policy by adopting measures on:

• the conditions for entry and residence, and standards on the issue of long-term visas and residence permits;
• the definition of rights of third-country nationals residing legally in a Member State including conditions governing freedom of movement and residence in other Member States;
• illegal immigration and unauthorised residence, including removal and repatriation of those residing without authorisation; and
• combating trafficking in persons.

6.120.  Article 79(3) allows for the conclusion of readmission agreements between the Union and third countries.[128] Article 79(4) provides for the possibility of incentive measures to promote integration of legally staying third-country nationals. Article 79(5) provides that this Article "does not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed".

6.121.  New Article 80 provides that the Union's policies in this Chapter and their implementation "shall be governed by the principle of solidarity and fair sharing of responsibility". This appears to strengthen the existing Article 63(2)(b) provision which provides for measures promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons.

6.122.  Martin Howe QC pointed to a "general intensification of the Union's policies in these areas", highlighting Article 79 on a common immigration policy (Q E243).

6.123.  Professor Shaw noted that, in general, the existing provisions on asylum, immigration and border controls were not particularly well or clearly drafted. They were considerably clearer under the Lisbon Treaty. She noted that the new language of these provisions imported some of the language of the 1999 Tampere conclusions on justice and home affairs[129] which was not included in the existing articles of the TEC. In this regard, she referred to language about fair treatment of third-country nationals and uniform status of asylum and subsidiary protection (QQ E54-55).

6.124.  Professor Peers considered that "The borders and visas power is slightly broader than the existing power because the visas policy is broader in principle and the power to regulate the freedom to travel is broader in principle". He also thought that the asylum power was "much broader" and a "more intensive" power than at present. He pointed to clarifications as to the power over migration and the significance of Article 79(5) in permitting Member States to regulate volumes of third-country nationals seeking work, in the light of the general shift in this area from unanimity to QMV. Professor Peers welcomed in particular the move to QMV and co-decision in legal migration, which he called "a very significant change" (Q E102).

6.125.  As regards particular changes, Professor Peers noted that under new Article 79(2)(c), the negotiation of readmission agreements with third countries was brought formally into the Treaties, although it was accepted that the power to conclude readmission agreements currently derived from Article 63(3)(b). Professor Peers did not consider that this new express power to adopt them changed very much (Q E102).

6.126.  One change highlighted by Professor Shaw relates to the new ability under Article 77(3) TFEU to adopt measures on passports, identity cards, residence permits and other such documents. Under existing Article 18(3) TEC, action in these areas by the Community to attain the objective of ensuring free movement is not permitted. Professor Shaw welcomed this change (Q E54).

6.127.  Mr Bunyan, for Statewatch, also referred to existing Article 18(3) which made it clear that the EU could not impose rules regarding biometric passports. The new provision in Article 77(3) allows such rules to be adopted by unanimity following mere consultation with the European Parliament. Mr Bunyan called this "probably one of the most outrageous provisions in the new Treaty". He was critical of the limited consultation role afforded to the European Parliament under the new article and the broad formulation of the power (Q E101).

6.128.  Professor Peers, for Statewatch, pointed out that the passport clause in Article 77(3) was subject to two limitations: action by the Union must be necessary to facilitate the free movement rights of EU citizens; and the power only exists where the Treaty does not provide the necessary power. On the latter, Professor Peers pointed to a number of passport security measures adopted on the basis of the EU's competence over external borders. In his view, therefore, Article 77(3) would not be available for such measures, which would instead have to be adopted on an external borders legal base, which would give the European Parliament a co-decision role. The matter might be more ambiguous as concerns identity cards, which might not be quite as clearly an external borders matter. As regards the facilitation of free movement rights, Professor Peers saw this as an important proviso, which would exclude Article 77(3) being used as the legal base for security-based measures given that such measures could not be said to facilitate free movement but might actually prove to be a hindrance to the exercise of free movement rights (Q E101).

6.129.  There have been important changes to the provisions on border controls, asylum and immigration. In many cases, the changes appear to reflect existing practice, for example, the new express power to conclude readmission agreements.

6.130.  The use to which new Article 77(3) can be put is not clear. To the extent that it provides a legal basis for measures concerning identity cards, this could have important implications for States which do not have identity cards. However, Article 77(3) is subject to unanimity which provides protection for Member States and the UK also has the right to choose whether to opt in (as discussed further below).

CIVIL JUSTICE

i. Arrangements under the existing Treaties

6.131.  Current Article 65 TEC provides for the adoption of measures "in the field of judicial cooperation in civil matters having cross-border implications". Such measures are to be taken "in so far as necessary for the proper functioning of the internal market". Article 65 goes on to set out a non-exhaustive list of such measures, specifying that they "shall include" measures:

• to improve and simplify the system for cross-border service of documents, cooperation in the taking of evidence and recognition and enforcement of decisions in civil and commercial cases;
• to promote the compatibility of Member States' rules on jurisdiction and conflicts of law; and
• to eliminate obstacles to the good functioning of civil proceedings, by promoting compatibility of civil procedure rules if necessary.

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101   A number of treaties in this area had already been agreed within the framework of the Council of Europe-see http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG for a full list of Council of Europe treaties. Back

102   Within the UK, Scotland has a separate legal system, protected under the Act of Union 1707. Back

103   Council Decision of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty (2004/927/EC), OJ L 396/45 of 31.12.2004. Back

104   Except implementing measures under Article 34(1)(c) and (d). Back

105   Initiative of the Kingdom of Belgium with a view to the adoption by the Council of a framework decision on the recognition and enforcement in the European Union of prohibitions arising from convictions for sexual offences committed against children, document 14207/04 COPEN 133 of 05.11.2004. Back

106   Witness recent cases of the ECJ C-176/03 Community v Council (Environmental Damages) [2005] ECR I-7879 and C-440/05 Ship-Source Pollution, judgment of 23 October 2007, discussed below. Back

107   Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market OJ L 376/36 of 27.12.2006. The proposal was amended significantly during negotiations in the light of the concerns of some Member States. Back

108   Though not all-see Brethren Christian Fellowship p E125. Back

109   Cases C-317/04 & C-318/04 Parliament v Council [2006] ECR I-4721 on the PNR agreement and Case C-540/03 Parliament v Council [2006] ECR I-5769 on the Family Reunification Directive. Back

110   Committee on Civil Liberties, Justice and Home Affairs. Back

111   Working Document No. 12 'Codecision and Conciliation' 11 December 2007. Back

112   The Prüm Treaty was agreed by seven Member States outside the EU framework. In that case there were insufficient numbers for enhanced cooperation but it is not clear whether attempts were made to achieve the numbers required. A number of Member States not party to the original Prüm Treaty were subsequently revealed to be keen to join. It is currently in the process of being converted into an EU instrument, so that it will be binding on all Member States, with minimal changes. See this Committee's 118th report (2006-07) Prüm: an effective weapon against terrorism and crime? (HL 90). Back

113   See below in relation to the UK opt-in.  Back

114   A recent example is the Sex Offenders initiative, discussed above.  Back

115   For full details, see Information concerning the declarations by the French Republic and the Republic of Hungary on their acceptance of the jurisdiction of the ECJ to give preliminary rulings on the acts referred to in Article 35 of the Treaty on European Union OJ L 327/19 of 14.12.2005. Back

116   New Article 276 TFEU. Back

117   But subject, for the UK, to the opt-in-see below.  Back

118   Amendments to the Rules of Procedure of the Court of Justice OJ L 24/39 of 29.01.2008. Back

119   Section 65(4) of the Criminal Procedure (Scotland) Act 1995 as amended. Back

120   The CILFIT criteria derive from Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415. In this case, the ECJ held that "A court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community" (paragraph 21). Back

121   The Court's docket is its list of pending cases. Back

122   Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 12/1 of 16.01.2001.  Back

123   Council Decision of 22 November 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty, OJ L 396/45, 31.12.2004. Back

124   The Select Committee reported on the proposed use of the passerelle: The Criminal Law Competence of the European Community, 42nd Report of Session 2005-06, HL Paper 227. Back

125   And, in the case of the Article 81(3) passerelle, the consent of both Houses of the UK Parliament under clause 6(1)(d) of the European Union (Amendment) Bill, as discussed above.  Back

126   See Chapter 11. The two FSJ proposals involved were the Commission Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (Rome III) COM (2006) 399 of 17.07.2006 and the Proposed Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism COM (2007) 650 of 06.11.2007. Back

127   Subsidiary protection is protection offered on humanitarian grounds to persons who are not formally refugees. Back

128   Readmission agreements provide for States to accept the return of nationals and third-country nationals who have passed through their territories on their way to a State in which they ultimately claim asylum. Back

129   Conclusions of the Tampere European Council of 15-16 October 1999 200/1/99. Back