Select Committee on European Union Written Evidence

Memorandum by Mr Brendan Donnelly, Director of the Federal Trust (evidence submitted in a personal capacity)


  1.  Since 1992, when the Maastricht Treaty established the "Justice and Home Affairs" (JHA) pillar of the European Union, the constitutional landscape of JHA has been in a continuous state of evolution. In 1997, the Amsterdam Treaty transferred many of the less politically sensitive areas of JHA (visas, asylum and immigration) from the intergovernmental third pillar to Title IV of the Community pillar, leaving Police and Judicial Co-operation in Criminal Matters in the third pillar. In 2004, the scope of Qualified Majority Voting in JHA was greatly extended under a procedure envisaged in the Amsterdam Treaty. The European Constitutional Treaty of 2004 would in its turn have greatly reduced the scope of intergovernmental decision-making in JHA. Contrary to the expectation of some, the Lisbon Treaty of 2007 seems likely to maintain this movement away from intergovernmentalism. Those areas which, in 1992, made up the EU's JHA pillar will, when the Lisbon Treaty comes into force, constitute the "Area of Freedom, Security and Justice" (AFSJ) in the EU's Community pillar. With isolated exceptions, JHA decisions will be taken by QMV in the Council of Ministers, with the European Parliament enjoying a full legislative role through the co-decision procedure and the ECJ (in time) having full jurisdiction to enforce JHA decisions.

  2.  By these significant changes in the field of JHA, the Reform Treaty will achieve at least one goal of the European Constitutional Convention, namely that of simplification and consequential enhanced transparency in the Union's decision-making structures. Until now, JHA has been an area of the Union's activities enormously difficult for the citizen, or even the scholar, to understand, full as it was of exceptions, anomalies and ambiguities. In its future operation, JHA will be, in so far as it directly affects most citizens within the European Union, a much simpler and more easily comprehensible field of policy and legislation. Unresolved questions indeed remain for the United Kingdom's role and participation within JHA. But within the whole of the JHA system, these questions represent the exception and not the rule. The Lisbon Treaty's provisions on JHA represent the culmination of a remarkable process whereby within fifteen years almost all Member States of the European Union have come to believe that their interests in the field of JHA were better served by the "Community method" rather than by the intergovernmental system which they instituted in 1992 for JHA and the Common Foreign and Security Policy (CFSP). While the latter remains essentially an intergovernmental matter within the European Union, "communitarisation" has clearly won the day in the sphere of JHA.


  3.  In the Amsterdam Treaty of 1997, the British Government obtained the right to decide on an ad hoc basis whether it wished to participate or not in new measures of JHA adopted under the "Community method" rather than intergovernmentally. The public rationale of this arrangement derived from the United Kingdom's geographical separation from "mainland" Europe and its common law legal system, the impact on the latter of a civil law criminal code being a particular source of concern (and debate). An analysis of the British Government's use of its opt-in/opt-out arrangements since the Amsterdam Treaty is however instructive. The UK has made good use of its right to stand aside in areas such as legal migration and visas and borders, where it has only occasionally participated in new legislation. It has on the other hand opted in, as a matter of course and without exception, to asylum law and civil law measures, a consistent pattern of behaviour suggesting that it might well have been possible, had the British Government wished, to accept in 1997 or later a more circumscribed arrangement for the British opt-in/opt-outs. It is difficult to avoid the impression that over the past ten years the British Government's attitude to the supposed necessity and desirability of the opt-in/opt-out system in JHA has been coloured in part at least by a general suspicion of the "Community method" of decision-making and a wish to emphasize in its public discourse to a domestic audience all manifestations of British particularism within the European Union.

  4.  This impression has been reinforced by the British Government's negotiating tactics in regard to the European Constitutional Treaty and, more particularly, the Lisbon Treaty. Far from seeking to limit the scope of its anomalous and arguably not wholly necessary opt-in/opt-out arrangements, the British Government sought and has obtained in the Lisbon Treaty a generalised right to opt in and opt out of all measures brought forward under the now substantially "communitarised" JHA. In the Constitutional Treaty, it had been content with a much less wide-ranging right to opt in or opt out of newly-"communitarised" legislation, apparently being content with the potential operation of the "emergency brake", an important feature of the Constitutional Treaty. It is not easy to see what objective changes in the British national interest occurred between the signature of the Constitutional Treaty in 2004 and the Lisbon Treaty of 2007. Some doubt exists, moreover, whether the position of the British Government in future negotiations relating to JHA will genuinely be improved by the effective swapping of a generalized British "opt-in/opt-out" for the use of the "emergency brake." (See para 8).

  5.  Further doubt is cast upon the general proposition that it is always in the British national interest to enjoy the right of opting out of proposed European legislation by two specific issues connected with the Reform Treaty: the precise terms of the United Kingdom's right to opt in to JHA legislation; and the role of the European Court of Justice. Ironically, in the former case the British Government finds itself pleading two cases before the European Court of Justice where it would like to participate in JHA measures, but is currently prevented from doing so by controversy over the operation of its opt-in/opt-out arrangements.

  6.  This controversy arises from the fact that the "system" of British opt-in/opt-outs in JHA is based on two separate Protocols agreed in the Amsterdam Treaty, the "Title IV opt-out" affecting most JHA measures and the "Schengen opt-out" affecting matters arising from the Schengen agreement. Of these, the latter is more restrictive for the position of the British Government. First, a British opt-in is subject to the approval of other Member States (though a British request has not so far been rejected). Second, a British opt-in to a Schengen measure binds the UK to participate in all provisions subsequently "building upon" this measure. Equally, the UK is unable to participate in Schengen measures "building upon" preceding measures into which the UK has not opted. The UK has opted in to some, but not all, "strands" of Schengen measures. This latter circumstance has served to exclude the UK from European arrangements in which it has wanted to participate, such as the Regulation establishing security standards for national passports. Similarly, the UK's predicted exclusion from the establishment of two related data systems, the Schengen Information and Visa Information Systems, has potentially far-reaching implications, deeply undesirable to the British Government. The British argument that the measures from which it is excluded are not Schengen-related, but rather Title IV provisions, is currently being considered by the ECJ. It is likely that even if the Court rules on this occasion in the UK's favour, uncertainty will remain over the distinction between Schengen and Title IV measures, with real implications for the UK's ability to opt-in in future to whichever JHA provisions it chooses.


  7.  In the medium term, another unwelcome decision will confront the British Government of the day, arising from the British approach to opt-ins/opt-outs. The Reform Treaty extends the normal, "Community" jurisdiction of the ECJ to all JHA provisions adopted after its coming into force. Those provisions adopted previously under the intergovernmental framework of the JHA pillar, will continue to be subject only to the limited jurisdiction of the ECJ for a transitional period of five years, when the European Court of Justice's normal jurisdiction will be extended to cover all prior legislation in policing and criminal matters. The UK will at this stage have the choice of accepting the jurisdiction of the ECJ or "opting out" of it. Should the UK choose to "opt out", all that legislation which has become subject to the ECJ's extended jurisdiction will cease to apply to the UK. In theory, the United Kingdom, having "opted out" of the general jurisdiction of the ECJ, could attempt to "opt back in" to individual measures on an ad hoc basis. Whether the British Government would wish to go down this road in five years time must be more than questionable. To abandon en masse British participation in all the intergovernmentally adopted JHA measures of the past decade as a protest against the jurisdiction of the European Court of Justice, and then inevitably seek to opt back in to most of these measures, would expose the British Government to something little short of ridicule. Nor is it clear that the United Kingdom's partners would be eager to help the British Government in what many of its partners see as a self-created dilemma.


  8.  If generally the Reform Treaty simplifies and makes more coherent the Union's working in the JHA field, one exception to this standardisation of procedures is provided by the "emergency brake" system, which will apply to (almost all legislative) areas of policing and criminal law. The initial effect of this procedure—when invoked by any member state that considers a legislative proposal "would affect fundamental aspects of its criminal justice system"—is to suspend for four months the legislative process relating to that proposal. If, after four months' discussion, no consensus results, a group of Member States, numbering at least nine, are then entitled to proceed with the proposal on the basis of "enhanced" co-operation. It will be a matter for careful reflection on the part of the British Government how it approaches the question of the "emergency brake" on matters where it has decided not to exercise its right of opting out at the beginning of the process. The political cost to the United Kingdom of "pulling" the emergency brake would inevitably be greater than for other Member States, since the United Kingdom would have had the option of not participating in the proposed new legislation in the first instance. The British system of opting in/opting out from JHA matters could well in consequence have the paradoxical effect of making more difficult for the United Kingdom the use of an option the British Government had been eager to secure—and which other Member States retain—precisely in the area of criminal law, which traditionally has been so important to the British Government.


  9.  Whereas for most Member States of the Union, the Lisbon Treaty has marked a radical simplification of the JHA policy area, the British system of opt-in/opt-outs has ensured that for the United Kingdom at least many uncertainties and complications remain in this field. Some of these uncertainties will be resolved five years after the coming into force of the Lisbon Treaty, while others, such as the interaction between the "Title IV" and the "Schengen" opt-in/opt-out, are likely to remain a source of friction and even embarrassment to the British Government. Those who believe that the geographical position of the United Kingdom and its common law system constitute an overwhelming case for placing some limits on British participation in the "communitarised" JHA may well argue that these uncertainties are a price worth paying for the United Kingdom's exceptional arrangements in the JHA field. Those anyway unpersuaded of the need for special British arrangements in these matters will simply regret the uncertainties. Those who see some case for a limited number of British exceptions to the general new pattern of "communitarised" decision-making in the JHA field may wonder whether in time the British Government may not wish to reassess its approach, to limit and confine the scope of its opt-in/opt-outs in a way that simply reflects clearly-defined national interests. It would be difficult to argue that such is today the case or that it will be so in the years immediately after the Lisbon Treaty.

November 2007

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