Memorandum by Sir David Edward[15]
The Third Pillar was not an area of EU activity
that came before me when I was a judge of the ECJ and I have not
studied it in any detail. My evidence is perhaps impressionistic
rather than the product of deep study and reflection.
In presenting my evidence, I have relied heavily
on Statewatch Analyses Nos 1 (version 3) and 4 prepared by Professor
Steve Peers, and on the consolidated provisional text of the Treaties
as amended by the Lisbon Treaty prepared by the (Irish) Institute
of International and European Affairs.
As regards matters of technical detail, there
is little I can add to the evidence of Professor Jo Shaw.
I address the following points:
—"Communitarisation" of the Third
Pillar.
—The involvement of national Parliaments.
—The role of the European Court of Justice.
"COMMUNITARISATION"
OF THE
THIRD PILLAR.
In my opinion, there are two reasons why it
is important to bring the Third Pillar activity of the EU into
the Community system. The first is that the line of demarcation
between Third Pillar activity and Community activity under the
EC Treaty is becoming increasingly difficult to draw. This is
illustrated by Cases C-176/03 and C-440/05 (on which I comment
below).
It is true that, even after incorporation of
Third Pillar activity in the Community system, questions are liable
to arise as to the legal basis of particular measures, affecting
the procedure to be followed, the safeguards and the opt-outs.
Nevertheless, the institutional context (and therefore the "constitutional"
context) within which measures are adopted will be clearer and
the nomenclature of the measures adopted will be uniform. This
may assist public understanding.
The second, and more important, reason for bringing
FSJ within the Community system is to ensure that the measures
adopted are subject to proper Parliamentary scrutiny and judicial
control.
Measures taken in the area of FSJ are liable
directly to affect the liberty of the individual. At the moment,
Third Pillar activity is essentially inter-governmental and, as
Professor JDB Mitchell observed, "There is a need for discipline
in government . . . Governments and governmental bodies have as
many reasons for conniving among themselves as they have for opposing
each other."[16]
We have recently discovered in this country
how important it is to have adequate parliamentary scrutiny and
judicial control of measures falling within the scope of FSJ.
In particular, we have discovered the importance of adequate measures
to protect personal data held by governmental agencies, and this
will be even more vital in the context of cross-border exchanges
of data.
Lord Falconer recently contended (at an event
at the Royal Society of Edinburgh) that "We must be guided
by principle developed by collaboration between politicians and
the courts". I respectfully agree.
INVOLVEMENT OF
NATIONAL PARLIAMENTS
The involvement of national Parliaments, albeit
indirectly, seems to me to be a further strong argument in favour
of the proposals. I am aware of disquiet amongst judges and lawyers,
academic and professional, in other Member States, including states
with a "Napoleonic" judicial system, about failure to
"establish the facts on the ground" before making proposals
that affect the working of the national judicial systems. (The
"continental" judicial systems are quite as disparate
as are the "common law" systems of England and Wales,
Scotland, Northern Ireland and the Republic of Ireland, if not
more so).
National Parliaments could play a significant
role in ensuring that FSJ proposals take due account of the needs
and particularities of national systems.
It should, however, be noted that the proposed
Article 63 TFEU would impose a positive obligation on national
Parliaments to ensure that the proposals submitted under
Chapters 4 and 5 (judicial co-operation in criminal matters, and
police co-operation) comply with the principle of subsidiarity.
Failure adequately to perform that duty might affect the admissibility
of arguments at a later stage to the effect that particular measures
infringe the principle of subsidiarity.
This would entail, not only further development
of the "internal" (UK) parliamentary scrutiny arrangements,
but also the development of close co-operation between the scrutiny
committees of the UK Parliament and the Parliaments of other Member
States.
Within the UK, and particularly as between England
and Wales and Scotland where the judicial system comes almost
entirely within the competences of the Scottish Parliament, it
would be essential to put in place effective machinery to ensure
that Westminster is fully informed as to the potential effects
of FSJ proposals for the working of the different internal judicial
systems. If Parliament is to exercise its role (and duty) effectively,
this cannot be left to civil service departments.
THE ROLE
OF THE
EUROPEAN COURT
OF JUSTICE
There is much misunderstanding in this country
of the role of the Court of Justice and, in particular, of the
effect of the judgment in Case C-176/03. The issue in that case
was essentially whether the power to provide for criminal penalties
in respect of serious environmental breaches fell within the powers
of the EC institutions under the First Pillar or exclusively within
the powers of the Council under the Third Pillar. It was not in
dispute, in colloquial terms, that "Brussels" had the
power to require the Member States to criminalise certain types
of conduct—the issue was "which Brussels?"
The type of question that arose in Case C-176/03
(involving the respective powers of the institutions) has frequently
arisen in the context of the First Pillar. The underlying issue
has normally been preservation of the prerogatives of the Commission
and the European Parliament, representing the peoples, vis-a"-vis
the Council, representing the governments of the Member States.
The approach adopted by the Court has been to insist that the
respective prerogatives of the institutions, granted by the Treaties,
must be respected. The basic principle is that the governments
of Member States having contracted to act together in a particular
way, and having created institutions for that purpose, cannot
then bypass or override those institutions.
The limited effect of Case C-176/03 is shown
by the subsequent judgment in Case C-440/05 which (paragraph 70)
preserves the power of the national system to determine the type
and level of criminal penalties. The reasons for the distinction
are very fully explained in the Opinion of Advocate General Mazák
of 28 June 2007.
In the event of Third Pillar activity coming
with the Community system, the function of the ECJ would be its
normal function of resolving inter-institutional (or inter-Member
State) conflicts and issues of vires, and ruling on the
interpretation of legislative and regulatory measures. Since such
issues are brought before the Court by others and cannot be sought
out or invented by the Court itself, it is difficult to see in
what way the exercise of this normal judicial function in the
field of FSJ would, as the Economist put it in a recent
article, provide opportunities for the Court to "meddle".
Having said that, I foresee two potential difficulties
in bringing FSJ measures fully within the jurisdiction of the
ECJ.
The first concerns the degree to which the members
of the Court can be expected to deal with an ever-growing range
of legal subject-matter.The problem does not, as I see it, arise
in direct actions but rather in references from national courts.
Normally, a case before a court of last resort such as the ECJ
will have been considered by two or more courts below. Even where
the ultimate court does not have detailed expert knowledge of
the legal subject-matter, this will normally have been explained
and the issues clearly defined by proceedings in the courts below.
By contrast, the ECJ is quite 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. This could present a serious
problem in a field as technical and nationally oriented as criminal
law and procedure.
The second problem will arise in cases concerning
accused persons in custody. The proposed new fourth paragraph
of Article 234 requires the Court to "act with the minimum
of delay". The 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. I am told that discussions are in progress to find a way
of cutting down the time taken, but it depends very much on the
willingness of Member States to forego their normal right to intervene
in writing and orally. The obligations of Member States (and therefore
of the EU) under Article 6 of the ECHR must be weighed against
the advantages of uniform interpretation of FSJ acts.
Even the minimum possible delay would present
a serious problem for observance of the 110/140 day rule in Scotland,
and would require legislation by the Scottish Parliament.
THE UK OPT-OUTS
I am allergic to the proliferation of opt-outs.
It is true that, with 27 and possibly more Member States, some
degree of variable geometry is almost inevitable. But a combination
of opt-outs and schemes of enhanced co-operation would be bound
to impair both prompt and efficient action and also the transparency,
objectivity and impartiality of the system.
This is particularly so where, on the one hand,
the EU and its Member States are faced with growing threats that
call for prompt and efficient action and, on the other hand, the
measures to be taken inevitably affect the rights of the individual.
One must, in the latter connection, have in mind the problems
of comprehensibility that are likely face a national lawyer who
is asked, perhaps at very short notice, to represent a person
who is (or may be) affected by, or entitled to rely on, an FSJ
measure—let alone the problems faced by a local judge.
Although the subject-matter of Cases C-77/05
and C-137/05 (UK v Council) was somewhat special, the Opinions
of Advocate General Trstenjak in those cases illustrate the wider
political difficulties that opt-outs may create.
Nevertheless, given the special characteristics
of our systems of criminal justice, it may be safer that the UK
should opt out of the FSJ provisions in the way it has. The "emergency
brake" system might not prove sufficient to avoid the adoption
of a measure that would create serious difficulties for our legal
systems. For clarity, it seems better that the extent of the opt
out be enlarged as now proposed, by contrast with the partial
opt out negotiated earlier in connection with the Constitutional
Treaty.
Lastly, the possible advantages of a policy
of opt-out rather than reliance on the emergency brake procedure
can be illustrated by the uncertainties hidden behind four of
the provisions in the FSJ Title:
— Article 69e(2), second paragraph
under (a): "the mutual admissibility of evidence" has
a very different connotation in the common law systems from that
of l'admissibilité mutuelle des preuves in the French
system. How, in practice, would the contents of the dossier
in a French criminal process become "evidence" in a
UK court?
— Article 69e(2), second paragraph
under (c): "the rights of victims of crime". Many continental
systems provide for victims of crime (or their families) to be
represented in criminal proceedings and, in some cases, to seek
civil remedies in the same proceedings. Our systems do not, for
the time being at any rate.
— Article 69d(2)(h) and Article 69e(1)(c):
"training of the judiciary and judicial staff": the
practicalities of such training are quite different in our system
as compared with systems that have a professional judiciary and
legally trained officials (who are often members of the judicial
corps themselves).
— Article 69i(2): "The European
Public Prosecutor's Office . . . shall exercise the functions
of prosecutor in the competent courts of the Member States in
relation to such offences". Application of this principle
would raise very serious problems in England and, in a different
way, in Scotland, quite apart from other Member States.
These problems are not insurmountable, but it
may be unwise to assume that they can always be negotiated away.
3 December 2007
15 Judge of the CFI 1989-1992, and of the ECJ 1992-2004. Back
16
Inaugural Lecture as Salvesen Professor of European Institutions
at the University of Edinburgh, "Why European Institutions?"
3 November 1968. Back
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