Memorandum by the Centre for European
Reform
In response to some of the specific questions
in your call for evidence:
— The move to co-decision/QMV in JHA
+ the application of the Charter in JHA: In the run-up to the
original agreement to apply QMV/co-decision in JHA, the phrase
"faster, more accountable decision-making in JHA" was
used to the point of cliche by officials selling the benefits
of this move. In reality, QMV may make decision-making faster,
but only in the Council—co-decision with the parliament
could well slow things down and will certainly change the dynamic
of JHA decision-making. Co-decision is likely to water down security-based
EU measures in favour of safeguards to ensure they do not adversely
affect innocent citizens. We think this is a good thing: the speed
of JHA decision-making is not nearly so important as the quality
of the decision taken. Recent concerns about the efficacy of recent
EU legislation banning liquids on flights are a good example of
this: the legislation impacts millions of Europeans day-to-day;
yet the governments' assertion that the legislation as enacted
is effective and proportionate to prevent the smuggling of explosive
substances on-board planes was not properly tested prior to adoption.
This is bad policy-making.
The charter is also likely to add grist to the
mill of civil liberties activism against security-based EU measures
since it applies to EU law and since the parliament will be empowered
to take cases based on its provisions. Therefore it should be
possible to establish a proportionality test, based on the charter,
for EU measures that impact on the liberty of the citizen. However,
the treaty also clearly limits the Unions power to determine internal
security conditions in the Member States in two main clauses:
one dealing with the power of the Court's rulings over measures
that impact national law enforcement and another on the power
of the EU in general over national security.
— The special opt-in provisions for
Britain and Ireland, now covering the whole JHA area: We agree
that this was the "least worst option", reflecting political
and legal realities which have often prevented agreement on JHA
initiatives in the past. Our view is that these are best acknowledged
rather than ignored when co-operating in such sensitive policy
areas. We think that in practice Britain and Ireland will opt
into most measures to tackle terrorism, crime and illegal migration
anyway. We also think there is little danger to either country
from the clauses stipulating that they must bear costs if their
non-participation renders some forms of co-operation inoperable.
However, both countries are likely to remain aloof from measures
to harmonise court procedures in the criminal law field. Given
that many other EU partners see internal security co-operation
and the harmonisation of court procedures as necessary complements,
there is a possibility that this could eventually provoke protests
from other EU countries. If the rest of the EU decide that non-participation
by the main common law countries in EU legislation guaranteeing
defendants rights or harmonising court procedures renders them
unsuitable partners in the operation of instruments like the European
arrest warrant then this is a very real problem. However, it is
our view that Britain and Ireland already guarantee a high degree
of protection for defendants in court proceedings, including for
non-citizens and that, in most cases, these are amongst the highest
in Europe. Other EU partners will no doubt exert pressure for
Britain and Ireland to opt-in to such legislation but, in our
view, this will stop short of isolating either country from measures
to strengthen internal security, such as the EAW.
— Eurojust and the establishment of
a European public prosecutor. In the past we have been unsure
about proposals for a European public prosecutor (see piece below
from 2004). While we are in favour of the treaty provisions to
strengthen Eurojust, we do not feel that the case for an EPP has
been adequately or clearly made, and worry that it may politicise
Eurojust in a way that is unhelpful. We would prefer to see Eurojust
develop more incrementally and continue to build on an already
impressive reputation for promoting and co-ordinating effective
judicial co-operation. Based on their clear opposition to the
idea of an EPP, Britain and Ireland could stand to lose valuable
co-operation through Eurojust if the unit develops into an EPP
and they are forced to opt out. But given that the treaty only
allows for the possibility of an EPP and that such an office can
only be established by unanimity as well as being covered by the
"emergency break" procedure, we feel adequate safeguards
exist to protect those countries that do not wish to agree to
such a move at present. We are, however, worried that the Commission
has not yet understood the need to make a clear evidence-based
case for an EPP, based on recent remarks from Commissioner Frattini
that he intends to push for the establishment of the office as
soon as the treaty provisions enter into force.
— The application of the passerlle
provisions in the area of JHA. We are unconcerned about the inclusion
of the passerelle clause in general. Passerelles have existed
in the treaties since the Single European Act and have only been
used once, to switch decision-making on immigration and asylum
policy to QMV in 2004. We believe this was a necessary and welcome
move and has improved the institutional environment in which these
decisions are made. In Britain, the debate over the general passerelle
clause in the Lisbon (reform) treaty studiously ignores the fact
that if member-states do choose to switch a particular area of
decision-making to QMV from unanimity under the clause, such a
decision must first be taken unanimously and, even then, any one
national parliament can block the move. The clause cannot be used
for issues with military implications (these may be relevant in
the area of counter-terrorism) We feel these are sufficient safeguards
and the clause ensures a desirable degree of flexibility into
the treaties that will hopefully delay a return to treaty-writing
in the future.
We would also point out that the threshold for
the number of national parliaments required to trigger the "orange
card" procedure to block unwanted EU legislation is lower
in the JHA policy area (a quarter as opposed to a third for other
policy areas), something often over-looked in the UK debate.
3 December 2007
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