Memorandum by Mr Brendan Donnelly, Director
of the Federal Trust (evidence submitted in a personal capacity)
THE SIMPLIFICATION
OF JUSTICE
AND HOME
AFFAIRS
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.
OPTING IN
AND OPTING
OUT
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.
THE EUROPEAN
COURT OF
JUSTICE
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.
THE EMERGENCY
BRAKE
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.
CONCLUSION
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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