Memorandum by JUSTICE
1. JUSTICE is an all-party law reform organisation,
dedicated to advancing human rights, access to justice and the
rule of law. It is the United Kingdom section of the International
Commission of Jurists.
2. We welcome the House of Lords European
Union Committee Sub-Committee E (Law and Institutions) Inquiry
into the EU Reform Treaty and are grateful for the opportunity
to submit evidence. JUSTICE has been one of the leading UK organisations
working on policy and human rights issues in the field of EU justice
and home affairs. In recent years we have, inter alia,
completed projects on the European Arrest Warrant and the EU Charter
of Fundamental Rights and Freedoms, and responded to consultations
and calls for evidence on issues relating to freedom, security
and justice in the European Union.
SUMMARY
3. In this response we will not attempt
to address all the issues raised by the inquiry but will focus
upon certain areas of particular interest to JUSTICE. Specifically,
we will here comment upon:
— Changes to the legislative process
in criminal law and policing.
— The operation of the opt-ins contained
in the protocol on the position of the UK and Ireland in respect
of the area of freedom, security and justice.
— The emergency brake and flexibility
procedures re criminal law and policing.
— The application of the Charter of
Fundamental Rights to FSJ measures.
4. Our evidence here highlights our main
views and concerns regarding the operation of the Treaty in the
above areas. If we do not mention a particular provision of the
Treaty, this should not be taken for endorsement. Our comments
relate to the provisions of the Reform Treaty and its Protocols
as agreed on 18 October 2007 and do not reflect any amendments
that may have been made to the texts between 18 October 2007 and
the 13 December 2007 treaty signing.
CHANGES TO
VOTING PROCEDURES:
CRIMINAL LAW
AND POLICING
5. We believe that there are both potential
advantages and potential disadvantages arising from the move to
the new "ordinary legislative procedure" in relation
to criminal law and policing matters. The current system of unanimity
in Council is, we believe, inappropriate for a Union of 27 Member
States—a number that may increase further in the future.
The need for a unanimous political will to achieve measures in
this area has encouraged delay in the legislative process while
negotiations take place; the watering down of certain legislative
instruments in order to satisfy Member States' concerns; and the
inability to pass some proposals altogether. In this context,
JUSTICE has been concerned that while co-operation measures facilitating
prosecutions, such as the European Arrest Warrant, have successfully
negotiated the legislative process, it has been difficult for
instruments protecting the rights of suspects and defendants to
do so. In particular, JUSTICE has long called for a binding Framework
Decision on procedural rights for suspects and defendants in criminal
proceedings, but the proposed instrument has been opposed by a
minority of Member States and has therefore failed to become law.
This imbalance is particularly unfortunate because in order for
mutual cooperation measures to be fully effective, judges and
others must have trust and confidence in the quality of justice
available in the criminal justice systems of other Member States.
6. In theory, we believe, the move to a
qualified majority voting system in Council in relation to policing
and criminal justice measures should result in legislation passing
through the Council more rapidly and, we expect, with fewer concessions
granted to individual Member States in order to allow it to pass.
However, this point is subject to caveats. First, the existence
of the emergency brake in relation to some measures may mean that
some of the characteristics of the old system are retained at
EU level (see below). Secondly, the move to a more streamlined
procedure will not necessarily be of substantive benefit to citizens
and residents of the Union since this will depend on the content
of the legislation being passed. Objections to legislation by
one or more Member States made on the basis that it insufficiently
protects human rights or the rule of law, for example, may now
be overridden more easily. The human rights provisions of the
Reform Treaty are welcome but may not provide sufficient protection
against this.
7. However, a greater focus on the rights
and interests of individual citizens and residents may be obtained
through the enhanced role of the European Parliament (EP) under
the ordinary legislative procedure. We strongly welcome the new
role of the EP in this context, since we believe that the former
primacy of the Council in the legislative process has been one
reason for the "pro-prosecutorial" emphasis in EU legislation
in criminal justice cooperation. Further, from the standpoint
of democracy and the rule of law, the pre-Reform Treaty system
suffered from a "democratic deficit" in this area. The
EP's role was limited, and while our national Parliament implemented
Framework Decisions through domestic legislation, it was in practice
difficult for it to reject their provisions once agreed by the
UK government in the Council. In our view, it is undesirable for
any legislative process to be dominated by the executive in this
way. We note, however, that there are concerns regarding the role
of the national parliaments under the EU Reform Treaty.[18]
8. We remain concerned that low voter turnout
in UK elections for Members of the European Parliament continues
to compromise the democratic legitimacy of the EP.[19]
However, it is to be hoped that the increasing importance of the
EP results in better engagement with the electorate. In this regard,
we highlight the need for transparency and simplicity in EU institutions
and legislative processes.
9. In general, however, it is important
to recognise, as we said in evidence to the House of Commons Home
Affairs Select Committee in October 2006,[20]
that changes in voting procedures should not be seen as the "panacea"
in relation to the progress of freedom, security and justice in
the European Union. We are concerned that while legislative cooperation
measures have proceeded, practical barriers to just and effective
cooperation in the field of policing and criminal justice remain.
First, there is a need for training for judges and lawyers in
relation to the criminal laws and criminal justice systems of
(now, a large number of) other Member States: without this, it
is very difficult to implement measures such as the mutual recognition
of previous convictions correctly. Second, the success of the
cooperative measures depends upon the ability of authorities to
trust in a generally high standard of policing and criminal justice
procedure in other Member States. We are concerned that these
objectives have not yet been fulfilled in practice across the
Union and that, without them, there is a risk that individual
rights may be compromised and that injustices may result.
10. In conclusion, while we believe that
the new legislative procedures for policing and criminal justice
cooperation will be, procedurally, more effective, the substantive
benefits to be gained depend upon the political will of the Member
States. The likely effects of the new procedures must also be
judged in the context of the emergency brake and flexibility procedures,
where applicable, and in the light of the UK's opt-in provisions.
THE OPERATION
OF THE
OPT-INS
CONTAINED IN
THE PROTOCOL
ON THE
POSITION OF
THE UK AND
IRELAND IN
RESPECT OF
THE AREA
OF FREEDOM,
SECURITY AND
JUSTICE
11. We have chosen to deal with the above
protocol's opt-in provisions at this juncture, since any consideration
of the new voting procedures as they relate to the United Kingdom
is significantly affected by the UK's ability to choose whether
to opt into proposed legislation. The UK's opt-in represents the
retention of an enhanced safeguard for national sovereignty in
the light of the loss of the requirement of unanimity in Council.
We presume that this reflects strong public and/or governmental
feeling regarding any potential loss of national control over
policing and criminal justice measures posed by the Reform Treaty.
12. We cautiously welcome the UK's opt-in
in these areas, since we believe that it is necessary to retain
a safeguard, in the field of policing and criminal justice, against
being bound by legislation that is oppressive and/or inappropriate
in the UK context. While the "emergency brake" does
provide such a safeguard it only applies to certain policing and
criminal justice measures under the provisions of the Reform Treaty
(see below). We regard the opt-in provision as being of particular
importance in the context of Article 69f of the Reform Treaty
(definition of criminal offences and sanctions in the areas of
particularly serious crime with a cross-border dimension) as EU
legislation in this area could conflict with existing—recently
enacted—UK laws defining criminal offences and sanctions.
While recognising the benefits of appropriate levels of harmonisation,
we regard the substantive criminal law as an area where it is
particularly important for strong safeguards for national sovereignty
to be retained. We are particularly concerned that such safeguards
should exist in relation to terrorism, where, for example, secondary
offences such as those relating to speech and membership of organisations
may compromise fundamental rights to freedom of expression and
association.
13. While we welcome the provision for opt-in
for the UK for those important reasons, we recognise that its
operation may also cause difficulties. If in future the UK decides
not to opt into, for example, laws on data protection or procedural
safeguards in the policing and criminal justice field, this could
compromise the mutual trust of other Member States for the UK
system and therefore undermine other aspects of cooperation such
as the European Evidence Warrant and criminal records exchange.
The opt-in should therefore be regarded as a useful tool to protect
democratic sovereignty and/or individual rights where necessary.
14. It should also be recalled that since
the UK will now have an opt-in rather than a veto in policing
and criminal justice, there is a possibility—in areas where
the emergency brake does not apply—that the UK may be bound
by legislation with which it disagrees having initially opted
into it. This situation would be undesirable and decisions whether
or not to opt-in will therefore have to be taken very carefully.
THE EMERGENCY
BRAKE AND
FLEXIBILITY PROCEDURES
IN CRIMINAL
LAW AND
POLICING
15. From a UK perspective, because of the
possibility that the UK could opt in to a measure and then be
outvoted in Council, the emergency brake procedure provides a
further useful safeguard against the UK's being bound by the text
of a measure to which it has not agreed. However, there are two
caveats to note in this context. The first is that the emergency
brake does not apply to the entirety of Title IV, Chapters 4 and
5 (judicial cooperation in criminal matters and police cooperation).
Second, use of the emergency brake, if the flexibility procedure
is subsequently invoked, could result in the development of "two-tier"
systems of cooperation. Third, the use of the emergency brake
could replicate some of the problems of the existing system of
unanimity in Council, creating delay and watering down measures
in order to avoid its over-use.
16. The emergency brake does not apply to
important aspects of criminal justice cooperation: for example,
Article 69e(1) is not covered, meaning that the procedure cannot
be used in relation to measures to prevent and settle conflicts
of jurisdiction between Member States or to lay down rules and
procedures for ensuring recognition throughout the Union of all
forms of judgments and judicial decisions. Such measures could
affect fundamental rights (for example, the right to a fair trial,
to liberty and to private and family life may all be affected
by the choice of forum state for a criminal trial). Further provisions
using the ordinary legislative procedure upon which there is no
emergency brake include Article 69g (crime prevention measures),
which is very broadly drafted; Article 69h (Eurojust: structure,
operation, field of action and tasks); Article 69j(2) (police
cooperation: information—including storage and exchange;
training and exchange of staff, etc.; common investigative techniques
re serious crime), and Article 69k (Europol: structure, operation,
field of action and tasks). In this context, the existence of
the UK's opt-in is to be welcomed.
17. Flexibility procedures appear in the
Treaty's criminal justice and police cooperation provisions in
relation to the emergency brake and also in relation to provisions
requiring a unanimous decision of Member States where such unanimity
cannot be obtained. While this procedure helps to avoid the stalling
of legislation that occurred under the pre-Reform Treaty unanimity
provisions, there are undesirable aspects to flexibility. Where
groups of states negotiate an agreement outside the ordinary legislative
procedure, we are not aware of any provision for democratic involvement
at EU level: without involvement by the EP the democratic deficit
would be greatly heightened. Further, as with the Treaty of Prüm,
a difficult "two-tier" situation is developed whereby
some states cooperate more closely, or have different obligations
regarding criminal law and policing issues, than others. Other
states are then presented with a fait accompli—if they want
to join arrangements regarding say, mutual admissibility of evidence
between Member States, but an agreement exists developed through
the flexibility procedure, it will be difficult to do other than
accept that agreement or remain outside the cooperating group.
This is undesirable.
THE APPLICATION
OF THE
CHARTER OF
FUNDAMENTAL RIGHTS
TO FSJ MEASURES
18. We will not deal here with the Charter
of Fundamental Rights (the Charter) in its general application
to freedom, security and justice measures but will consider it
in the context of the UK's opt-out to the Charter by virtue of
Protocol No 7 to the Reform Treaty, and as it relates to criminal
law and policing.
19. The opt-out provides that the Charter
will not create justiciable rights in the UK and, in so far as
it refers to national laws and practices, will not affect those
of the UK that do not comply with the Charter. However, the Charter
will be applicable to EU legislation in the field of freedom,
security and justice and therefore, we believe, any legislation
negotiated by parties including the UK at the EU level in this
field will necessarily have to be Charter-compliant. This latter
aspect is, we believe, very welcome.
December 2007
18 See the House of Commons European Scrutiny Committee,
European Union Inter-Governmental Conference, 35th report of session
2006-07. Back
19
Although voter turnout in the UK increased from just 24% in the
1999 EP elections to 38.5% in 2004: see "Lessons learnt from
European Parliamentary elections, 2004" Electoral Commission
news release, 21 December 2004, www.electoralcommission.org.uk. Back
20
JUSTICE Evidence to the House of Commons Home Affairs Committee
inquiry into current issues affecting Justice And Home Affairs
at EU Level, October 2006. Back
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