23 March 2003
1. Statewatch welcomes the committee's decision to conduct an enquiry into the final report of the Convention working group on freedom, security and justice (which we will refer to as Justice and Home Affairs, or JHA), as well as the opportunity to comment on that report. These are important and controversial subjects both at EU and national level, of great interest and concern to the general public, and worthy of a detailed parliamentary examination.
2. We hope that the committee will continue to follow Convention developments on this subject, in particular the draft Articles on JHA matters due to be circulated by the Convention Presidium on 17 March. We may submit some further comments following the appearance of these draft Articles.
3. It is unfortunate that there seems to be no detailed policy statement by the UK government on this issue. There does not seem to have been extensive UK involvement in the working group, judging from the working papers submitted to the working group. A brief UK/Finnish paper was submitted, but it is rather vague. Statements by the Foreign Secretary and Prime Minister are also rather vague.
4. As a final preliminary point, we would like to stress the importance of distinguishing between the two distinct areas of JHA. Immigration, asylum, border controls and civil judicial cooperation have been governed by the 'Community method' since the Treaty of Amsterdam entered into force nearly four years ago, albeit with certain divergences from the Community method that are due to change anyway after the end of a five-year transition period just over a year from now, on 1 May 2004. At that point the Commission will have a full monopoly of initiative, and certain legislation concerning visas and administrative cooperation will have to be adopted by a qualified majority vote in the Council. The Council is also obliged at that time to change the voting rules on some or all other areas and adapt the highly restrictive rules relating to the Court of Justice. Certain voting rules changed as a result of the Treaty of Nice as regards asylum and civil law (except for family law). Also, the UK can opt in to of any of these measures during discussion of proposals or after their adoption. Conversely if we do not exercise the power to opt in we have opted out of the texts. All of these measures are EC acts (regulations, directives, decisions) governed by the rules of EC law (direct effect and supremacy).
5. In contrast, the remaining 'third pillar', concerning police and criminal law, has a different, essentially intergovernmental, regime. The acts, which are different in form from EC acts, have the legal effect of public international law; the Commission shares the initiative with the Member States indefinitely; there is a different regime for the Court of Justice, under which the UK has opted out of the prospect for national courts to send references; all voting in the Council except on implementing measures remains unanimous indefinitely; and the European Parliament has only the power of consultation indefinitely (the Council can also require it to vote within three months). There is also a different system for agreements between the EU and third states (Articles 24 and 38 EU) as compared to agreements between the EC and third states (Article 300 EC). From a UK constitutional point of view, the third pillar is not governed by the European Communities Act, so the provisions of that Act on the effect of EC law, the precedential effect of the Court of Justice's judgments, and the delegated legislative powers of the executive do not apply.
6. It is unfortunate that many figures in the press and even the government appear to be unaware of the considerable differences in the two regimes. The result is that it is very unclear what the government means by statements about, for example, extending the Community method as regards 'justice and home affairs'.
7. Our comments on the working group report are based on comments submitted to the Convention by Statewatch and three other NGOs (ILPA, ECRE and the Meijers Committee) regarding JHA issues and concerns about democracy, openness and accountability of the EU in general. The comments follow the structure of the working group's report. It should be emphasised at the outset that we only support any changes which would enhance the EU's powers in this area on condition of greater democracy, openness and accountability of the EU, including greater protection for human rights within the EU legal order. There should be a greater role for national parliaments within the EU system, scrutiny of implementing and operational measures of the EU and its Member States in the EU framework, enhanced powers for the EU ombudsman, greater access to EU information and documents (applying to all EU institutions, bodies and agencies), greater judicial and political accountability of EU entities such as Europol, Eurojust and the meetings of police chiefs and further open meetings of the Council (see our submissions for further details). To ensure human rights protection, the next Treaty should provide for the accession of the European Union to the European Convention on Human Rights (and other international human rights treaties) and provide for the EU Charter of Rights to have binding legal force. This is necessary to ensure that the EU does not violate human rights regarding immigration, asylum and criminal law in particular. Those two steps should only have effect as regards Member States when they are implementing or derogating from EU law, not when they exercise powers on a purely national basis, and they should not in themselves extend the competence of the EU.
The working group report
8. First of all, we are strongly opposed to the idea that the two areas of justice and home affairs law should fall within a single legal framework. This is because of our concern that in such a single framework, the 'security' aspects of immigration and asylum law will dominate over the other important aspects of these issues, such as protection for those needing it, equal treatment for migrant workers and their family members, and the social and economic aspects of migration. There are certain links between the two areas, but immigration and asylum also has close links with the EC's internal market and social policies, while criminal and policing law is also relevant to EC law on (inter alia) the EC budget, the environment, the free movement of private security firms, race discrimination, intellectual property, fisheries and health and safety. Therefore the provisions on immigration, asylum law and civil law should form part of the Treaty rules on the internal market, as suggested in the Presidium's original draft outline of a new Treaty from last October.
9. As for the idea of future JHA programmes being outlined by the European Council, this is dependent on greater accountability of the European Council itself and greater participation of civil society and (as the Working Group suggests) national parliaments and the European Parliament in drawing up these programmes. This was manifestly not the case for the Tampere programme. It should also not be forgotten that certain aspects of the Tampere programme (notably the equal treatment of long-term resident third-country nationals) have not really been implemented in practice.
10. The idea of separating 'legislative' and 'operational' acts is not objectionable per se; but it is very important to ensure that there is effective accountability in both cases (see discussion below).
11. We welcome the idea of qualified majority voting and co-decision on issues relating to immigration, visas and asylum, on condition that there is greater protection for human rights within the EU legal system as set out in paragraph 7 above. The change of voting rules will ensure greater participation of the European Parliament and will prevent a handful of Member States from insisting that immigration and asylum law be harmonised at the lowest common denominator.
12. As regards the scope of the EU's power on this issue, it is already clear from the wording of Article 63(2)(a) that the EC has power over complementary (or subsidiary) protection, and there is nothing to rule out EC powers over access to employment as regards any category of migrant. It might be useful to clarify these points for the avoidance of doubt. However, there is no need for EU powers to address 'integration' of migrants going beyond the power to define the status and rights of long-term residents of the EU, ensuring their equal treatment and security of residence. Member States have different views on the extent of cultural or other assimilation, if any, that migrants should undergo and there is no point trying to harmonise such basic cultural differences. As for border controls, any move to develop a European border guard would entail a transfer of coercive powers away from sovereign states, and so should only be approved by a unanimous vote in Council, the assent of the European Parliament and ratification by national parliaments.
13. Next, the working group recommends a shift to the 'Community method' as regards the acts to be adopted within the scope of the current 'third pillar'. We support this idea because the Community method is clear, understandable and well-established. This would also ensure that subjects could be tackled with a single piece of legislation rather than different measures in the different pillars and the direct effect of legislation in this area would ensure that suspects, defendants and victims could rely on rules which were developed for their protection. It should be kept in mind that the Court of Justice has repeatedly ruled that the 'direct effect' of directives cannot lead to increased criminal liability until a Member State has transposed a directive into national law and provided for such liability. While it would be preferable to give the Commission the sole right of initiative to ensure coherent policy-making, the idea of a joint right of initiative with a group of Member States as suggested by the working group is a reasonable compromise.
14. In our joint submissions, we argued that decision-making in this area should be divided into three categories: qualified majority vote with co-decision where an issue does not affect fundamental issues of sovereignty; unanimous vote with assent of the EP where the measure affects basic aspects of the EU legal order or is particularly important for Member States; or unanimous voting, assent of the EP and ratification by national parliaments where the measure affects the basic core of national sovereignty or the balance of power between Member States. So, for example, the first category of voting should be used for such matters as funding programmes concerning policing and criminal law, the organisation and management of Europol (as distinct from its powers) or the harmonisation of criminal law in areas (such as the environment) where the Council already votes by a qualified majority. The second category should be used to harmonise national criminal law in other areas, to harmonise national criminal procedure in any area, or where rules were adopted regarding cross-border powers of national police forces. The final category would apply where coercive powers were given to Europol or Eurojust or where a new body with such powers (such as the European Public Prosecutor) was created. It follows that in many respects the working group's proposals would permit EU measures to be adopted by a qualified majority vote and co-decision in too many cases.
15. As for 'operational' powers, it is not clear from the working group report how the EU would be accountable to the public, national parliaments and the EP, what judicial control would apply and what forms of acts or decision-making procedure will be used. These are vital issues which were not adequately addressed by the working group.
16. If the Treaty provisions regarding Europol and Eurojust were to be amended, they should merely aim at setting out the status quo regarding these organisations, with a clear provision to the effect that any future coercive powers for these organisations will depend on national parliamentary assent. The working group has not made out a case for giving Eurojust the power to initiate prosecutions, given the absence of a system of accountability provided by the framework of a national criminal justice system.
17. Equally neither the working group nor the advocates of a European Public Prosecutor have come anywhere close to making out the case for such a body to be created. Given the powers of Europol and Eurojust, the changes in decision-making and instruments agreed in the Treaty of Amsterdam and contemplated for the next Treaty and the development of measures such as the European Arrest Warrant, it is difficult to see the point of creating such a body in light of the enhanced possibility of coordinating national investigations and arranging national prosecutions concerning fraud against the EU budget or other matters. Moreover, as argued in our earlier joint submissions, the idea of a 'hybrid' system (with the EPP prosecuting a person in a national court) is incoherent and risks unfairness to the suspect. If there is to be an EU prosecutor there should be a proper legal framework including detailed rules on substantive criminal law, criminal procedure and a separate criminal court (like the International Criminal Court).
18. As regards the Court of Justice, we agree with the working group's conclusion that the normal rules on the Court's jurisdiction should apply, given the need for coherent rules on jurisdiction and the importance of protection of human rights in JHA matters. There is no convincing reason for allowing an opt-out from jurisdiction of the Court as regards preliminary rulings. It should be kept in mind that the UK courts will in event be subject to the prospect that a court in another Member State may send a reference to the Court of Justice on an issue in the midst of cooperation with a UK court, and that judgments of the Court of Justice on criminal matters will likely considered as persuasive, even if not binding, on the UK courts. As for permitting only final courts to send questions to the Court of Justice (currently the case as regards immigration, asylum and civil law) this may delay the final resolution of cases and detract from the prospects of uniform interpretation of the EC rules and thus cause the further expense of appeals brought purely to secure the prospect of a reference to the Court of Justice. This is not desirable for taxpayers, migrants, the national judicial system or national administrations.
Statewatch, 23 March 2003 (prepared by Steve Peers)
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