Memorandum by the Law Society of England
and Wales
1. The Law Society of England and Wales
welcomes the opportunity to contribute to the Sub-Committee E
(Law and Institutions) inquiry on the impact of the Reform Treaty
in the Area of Freedom, Security and Justice. The Law Society
of England and Wales ("the Society") is the representative
body of over 125,000 solicitors in England and Wales. The Society
negotiates on behalf of the profession and lobbies regulators
and government in both the domestic and European arena. The Society's
EU Committee is currently developing an information campaign to
inform the solicitors' profession about the Reform Treaty and
the future framework of the European Union.
2. Whilst the Reform Treaty is an amending
treaty, one that updates the existing Treaty on the European Union
and the Treaty establishing the European Community, the effect
of the new institutional arrangements and decision-making procedures
will have a significant impact in the area of freedom, security
and justice. The Society considers that important progress is
made under the Reform Treaty in this regard.
3. The Society has previously expressed
concern that the creation of a pillar structure in the European
Union has allowed certain areas of activity—notably justice
and home affairs policy—to develop outside the framework
of democratic accountability and judicial scrutiny. The Society
therefore strongly supports the fusion of the pillar structure
and welcomes the move to apply the ordinary legislative procedure
to proposals in the field of freedom, security and justice.
4. The Society recognises that there are
a number of benefits in endowing the European Commission with
the sole right of initiative in the area of police and judicial
co-operation in criminal matters. We note that this is subject
to the right of initiative of Member States where a quarter of
Member States chose to bring forward a proposal. The Society considers
that this will ensure a more co-ordinated and coherent approach
to legislation, planned according to long-term EU strategy and
policy programming rather than being based on the pressing domestic
political considerations of the day. Moreover the European Commission
will be better placed to take into account other relevant Community
policies such as those arising in fields of activity like social
policy, equality policy or external relations. Furthermore, unlike
the Member States, the Commission has the explicit role of `guardian
of the treaties' and can be held to account both by the European
Parliament and European Court of Justice if it fails to give due
weight to the rights of individuals as set out at a European level.
5. The ordinary legislative procedure will
lead to the involvement of the European Parliament as a key, indeed
equal, partner in the area of freedom, security and justice. Parliamentary
right of co-decision will go someway to remedying the democratic
deficit that exists to date and improve accountability and transparency.
Notwithstanding the debate as to the low levels of participation
in European Parliamentary elections, it is the Society's view
that as the only democratically elected EU institution it remains
the best place in which to conduct an open debate about the decisions
that are to be taken. We believe that it is important that developments
in European Justice and Home Affairs policy that affect individuals
and their fundamental rights are properly debated and seen to
be based on more than political compromises sealed behind closed
doors.
6. Moreover, we are confident that the European
Parliament will be an effective player in ensuring the balance
between security, freedom and rights and we consider that it could
provide a positive counterbalance to the "lowest common denominator"
decisions previously taken by the Council of Ministers. Enhancing
the role of the European Parliament in this field will, we consider,
ensure a more even-handed approach to the balance between the
need to protect the individual's rights as well as the imperative
to facilitate cross-border law enforcement. The European Parliament's
reports on the European Evidence Warrant proposal as well as the
proposal on procedural safeguards in criminal proceedings demonstrate
this.
7. We also consider that the European Parliament
is the best placed institution to provide oversight and public
scrutiny of the actions of Europol and Eurojust. The Society has
been concerned that these institutions, particularly Europol have
been created outside the normal institutional framework. This
has left them in an accountability `limbo'—they are neither
scrutinised fully by the European Parliament, nor are they accountable
for their activities in the European Court of Justice. The Society
supports the developments under the Reform Treaty in this regard.
8. Under the Reform Treaty the European
Court of Justice will gain full jurisdiction in the area of freedom,
security and justice rather than the court's jurisdiction being
limited to preliminary rulings in relation to those Member States
who have chosen to confer jurisdiction on it. Enhancing the role
of the European Court of Justice should facilitate consistency,
clarity and legal certainty.
9. The Society agrees that there are benefits
in subjecting proposals in this field to the Qualified Majority
Voting procedure noting that it will speed-up the decision-making
process and ensure that particular Member States cannot drag their
heels on a specific proposal and prevent its adoption. Proposals
can no longer be "held hostage" to national veto. Again
we would refer to the approach of some Member States, led by the
United Kingdom, in blocking the procedural safeguards proposal—an
important piece of legislation that would have gone someway to
ensuring the equality of arms in the area of freedom, security
and justice. However, on the other hand, the concern is that without
unanimity voting certain more repressive proposals may be adopted,
notwithstanding the concerns of some Member States.
10. The Society would agree that proposals
in the police and criminal justice sphere do have a particular
resonance for national law and procedure and that many see action
in this area as stepping on the sovereign toes of the Member States.
It is for this reason that the "Emergency Brake" procedure
has been introduced as set out under Article 69 A (3). The Society
accepts that this is a sensible mechanism through which to raise
concerns of national importance in respect of domestic systems
and off-set some of the perceived danger in losing the national
veto.
11. The enhanced co-operation procedure
under Article 69 A (3) can be viewed as a necessary counterpart
to the emergency brake procedure. Whilst this may serve as a tool
by which to protect national interests and ensure one Member State
does not hold up the rest, the Society is concerned that it could
be regarded as a step backwards in terms of a coherent approach
to the development of an area of freedom, security and justice
and result in a patchwork of rights, powers and procedures.
12. This argument can equally be applied
to the extension of the UK's Protocol containing the right to
opt-in on matters relating to judicial co-operation in civil matters
to judicial co-operation in criminal matters. The Society agrees
that this is a tool by which to protect UK national interests
but is concerned that the Government will opt-in to measures that
enhance cross-border police powers but not participate in measures
trying to establish EU-wide standards of procedural safeguards
and rights of the accused.
13. The Society has previously expressed
very negative views on the creation of a European Public Prosecutor
(EPP) as dealt with under Article 69 E. We are still opposed to
the creation of such a post because we do not think that, as currently
proposed, the argument for such a position has been made. We do
not see the need to create a special prosecutor for a limited
range of `offences against the Union's financial interests'. There
is no reason why these could not be treated as crimes in every
Member State and prosecuted by the relevant national authorities
on the basis of an enhanced co-operation with OLAF, the European
Union's Anti- Fraud unit and Eurojust. In our view, issues such
a responsibility in multi-jurisdictional cases should be dealt
with by Eurojust according to pre-agreed criteria, such as the
`centre of gravity' of any multi-jurisdictional crime rather than
under the remit of the European Public Prosecutor.
14. Regarding the special arrangements for
family law measures and the family law passerelle, the Society
considers that differences in law and procedure between Member
States are significant, rooted as they are in national views of
family life and local socio-economic and cultural traditions.
We consider therefore that retaining unanimity in this field,
but with potential to subject matters in this area to the ordinary
legislative procedure in the future, is sensible from the perspective
of safeguarding national interests. We are concerned however that
the democratically elected European Parliament is only consulted
on these proposals.
15. On the question of the Charter of Fundamental
Rights, while the Charter has not been incorporated into the Reform
Treaty, Article 6 will provide that it will have the same legal
value as the EU Treaties—it will thus become legally binding
and this will make the fundamental rights that it contains operational.
On the plus side, this means that for the first time the EU has
set out in one place the fundamental rights from which every EU
citizen can benefit. Many of these rights are not new, but the
fact that they will have the same legal value as the EU Treaties
is significant because it will allow them to be recognised or
interpreted in new ways that could bring positive benefits to
individuals. The Charter also covers social and economic rights
such as the right to fair and just working conditions and the
right to family and professional life. Further, the Charter introduces
modern rights which do not exist in the ECHR, such as the right
of access to information and the protection of personal data.
Further, where Charter rights correspond to those set out in the
ECHR, the Reform Treaty provides that the meaning and scope of
those rights will be the same—this would allow lawyers and
their clients to rely on the interpretation of fundamental rights
developed by the case law of the European Court of Human Rights.
16. The Charter does not create new rights
but rather collects together rights already in existence. It does
not create new rights under national law and only applies when
national governments are implementing EU law. It would not introduce
new general rights into national law.
14 December 2007
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