Select Committee on European Union Forty-First Report



251. This report has so far examined constitutional, institutional and presentational issues. But how will the draft Treaty actually affect daily life? This Chapter looks in detail at two specific and significant policy areas covered by the draft Treaty: the question of human rights; and matters of freedom, security and justice. We hope by studying these areas in detail to shed some light on how the draft Treaty will actually have an impact on issues of direct concern to citizens[100].

A Bill of Rights? - the Charter

252. Article I-7 of the draft Treaty requires the Union to "recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights". The Charter itself is set out in Part II of the draft Treaty. Any constitution needs a bill of rights and the Charter is the Convention's choice for the Union.

253. The Government has, however, been less than enthusiastic about the Charter becoming the Union's bill of rights. While it had welcomed the idea of a statement of rights and freedoms to be respected by the Union's institutions the Government had not supported incorporation of the Charter into the Treaties because it lacked legal precision. Paragraph 103 of the White Paper makes it clear that the Government will make a final decision on the incorporation of the Charter into the Treaty "only in the light of the overall picture at the IGC".

254. Faced, however, with the fact that the large majority of Member States saw the Charter as an indispensable part of the draft Treaty and their reluctance to open up the text of the Charter Articles for revision, the Government has concentrated its efforts on seeking to strengthen the "horizontal clauses" and to improving the content, and securing the status of, the "explanations". This is also something which we thought necessary and we accordingly welcome this change.

255. Overall, the Government has generally been successful in making changes: Peter Hain told us (Q31) "we opposed a straightforward insertion of the Charter into the new constitutional Treaty without very important safeguards on it and we negotiated very hard and expertly in the case of one of your colleagues, Baroness Scotland, who turned the whole debate around from a position where it was pretty well only ourselves, Ireland and Denmark with perhaps a bit of support from some of the newer Member States, we were under pressure to accept the wholesale implementation of the Charter, to the one we now have which is a whole series of safeguarding arm locks around it". Some detailed discussion on wording would, however, still be required.

256. Peter Hain also drew our attention to three safeguards:

·  a horizontal clause that stops the Treaty changing our domestic law in areas where European competence does not apply - i.e. the Union's powers cannot be extended

·  the preamble which makes the status of the Charter clear: "the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared at the instigation of the Praesidium of the Convention which drafted the Charter"

·  a linking reference to the commentary that requires due regard to be paid by the European Court of Justice (ECJ) to the commentary.

257. These safeguards are indeed stronger than was the case with earlier drafts. We welcome these changes to the provisions regarding the Charter. We have, however, some concern whether these safeguards will be sufficient formally to bind the Commission. Peter Hain agreed that this point would need to be put to the IGC (QQ33-4). In view of concerns expressed in debate in the House[101] we seek a specific assurance that the safeguards applied to the Charter in the draft Treaty are indeed binding on the Commission. We also question how far the efficacy of the provisions of the commentary will withstand the development of case law by the ECJ.

258. On the broader question of whether the Charter should be in the Treaty at all, we note that the Government will reach a final decision on incorporation of the Charter at the IGC itself. The presence of the Charter in the Treaty does have the effect of showing the citizen that the EU should respect fundamental rights, thus meeting the Laeken test of both clarity and of bringing the EU closer to the citizens. We seek an assurance from the Government that, were the Charter to be omitted, alternative means would be found of clearly re-assuring the citizen that the draft Treaty enhances human rights.

259. We are also pleased to see the positive statement in Article I-7(2) that the Union "shall seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)[102]. We note, however, that when taking decisions on accession to the ECHR, including that authorising negotiations to be opened, the Council must act unanimously and the European Parliament must be consulted before any agreement on accession is concluded (Article III- 227).

260. Much technical work has already been done. The citizen should have confidence in knowing that the institutions and bodies serving the Union are clearly bound by the requirements of the ECHR. We would, however, welcome further clarification of the effect accession to the ECHR would have on any decision to adopt the Charter.

Area of freedom, security and justice


261. The development of the European Union as an area of freedom, security and justice (AFSJ) has been a central EU objective since the entry into force of the Amsterdam Treaty. However, the framework for establishing an AFSJ is currently far from coherent, with justice and home affairs matters falling between the Community framework (Title IV TEC) and the Third Pillar (Title VI TEU).

262. A main task of the Convention has been to simplify and clarify the position, with the aim of making EU action more efficient and thus more relevant to the citizen's needs[103]. In his oral Report to the Thessaloniki Council, Valéry Giscard d'Estaing went so far as to say that the establishment of an AFSJ is "a fundamental reform which citizens want to see"[104]. In the light of the clear political will to develop the AFSJ further, it is not surprising that justice and home affairs is one of the areas of EU action which have been subject to far-reaching reforms. Changes involve both institutional and competence matters and are highlighted below.

The abolition of the pillars

263. One of the most significant changes brought by the draft Treaty is the abolition of the pillar structure. There is now one Chapter in Part III of the Treaty entitled 'Area of Freedom, Security and Justice', encompassing matters currently falling under both the First and Third Pillars. A major consequence of this change is that, with few exceptions, decisions in justice and home affairs matters will be taken "in the Community way"[105] with intergovernmental elements being reduced to a minimum. The main changes involve:

·  The type of legal instruments and direct effect: all AFSJ legislative action will take the form of European Laws, Framework Laws and Decisions (which will replace Regulations, Directives and Decisions). At the moment the Third Pillar provides for a separate set of legal instruments, namely Framework Decisions (the equivalent of Directives but not entailing direct effect), Decisions and Conventions. Legislative action on AFSJ matters currently falling under the 'Third Pillar' can thus also take the form of directly applicable 'European Laws' (there is no equivalent in the TEU to an EC Regulation) and the instrument of Third Pillar Conventions has been abolished. 'Third Pillar' AFSJ legislation may also have direct effect.

·  Voting in the Council: with few exceptions,[106] the rule is qualified majority voting. This is a significant departure from the current arrangements in both Title IV and the Third Pillar, where in general unanimity is required. The Government welcomes QMV in immigration and asylum matters but not for criminal procedure (see paragraphs 82—3 of the White Paper).

·  The role of the European Parliament: again with few exceptions,[107] the rule is that decisions will be taken under the legislative procedure (currently named 'co-decision'). This marks a significant increase in the powers of the European Parliament, which is currently merely consulted both in Title IV and in Third Pillar matters.

·  The right of initiative: The shared right of initiative between the Commission and Member States remains. But the latter's powers have been limited, with the Treaty requiring the initiative of a quarter of the Member States for a proposal to be put forward (Article III-165(b)) (currently a proposal by one Member States suffices).

·  The jurisdiction of the European Court of Justice: apart from a limited (and largely tautological) exception,[108] AFSJ measures will now be subject to full judicial control by the Court. The latter's jurisdiction is thus significantly extended.[109]

The role of national parliaments

264. The role of national parliaments has been enhanced, and the Government welcomes this (see paragraph 81 of the White Paper). AFSJ proposals will be subject to subsidiarity scrutiny in accordance with the arrangements in the Protocol on the application of the principles of subsidiarity and proportionality (Article III-160). National parliaments may participate in the evaluation mechanisms of the implementation of AFSJ measures by Member States - and will be informed of their outcome (Articles III-160 and 161). Parliaments will also be informed of the proceedings of the standing committee which will be set up in order to enhance operational co-operation on internal security (Article III-162).[110]

265. The Treaty also provides for the involvement of national parliaments in evaluating the activities of Eurojust (Article III-174(2)) and scrutinising, together with the European Parliament, the work of Europol (Article III-177(2)). We welcome the express reference to scrutiny of Europol by national parliaments and the European Parliament, which reflects our earlier recommendations.[111] However, we would like to see a specific reference to 'scrutiny' being also inserted in the provision relating to Eurojust.

Border checks, asylum and immigration

266. Noteworthy developments in this area include the explicit reference to the creation of a 'common European asylum system' and to partnership and cooperation with third countries with a view to managing inflows of asylum seekers (Article III-167(2)) which the Government has pressed for.[112] The Treaty also establishes a specific legal basis for the gradual introduction of an integrated management system for external borders (Article III-166(1)(c)) and includes a specific provision, Article III-169, establishing the principle of solidarity (including its financial implications) between Member States in the areas of immigration, asylum and border controls.

267. We welcome these developments. In our recent Report on proposals for a European Border Guard[113] the Committee endorsed the concept of financial burden sharing. The Committee also noted with approval that a specific legal basis for integrated border management, along with the merging of the pillars, would subject border control measures to a high level of judicial control and parliamentary accountability, although it remained uncertain whether it would lead in time to the establishment of a European Border Guard which we would oppose, in line with our earlier report.

268. The AFSJ Chapter is silent on the subject of the UK's participation in EU border control measures. The Government notes in its Explanatory Memorandum that Article E of the General and Final provisions provides that the protocols will remain an integral part of the Treaty[114] and confirms that its position on the UK's Protocols has not changed.[115] The Government has made clear that it "will not give up the United Kingdom's right to carry out frontier controls and the protocols which safeguard the United Kingdom's position" (see paragraph 84 of the White Paper).

Judicial co-operation in criminal matters

269. An important development in this area has been the explicit reference to the principle of mutual recognition in criminal matters (which the Government particularly welcomes) (see paragraph 81 of the White Paper) and the extension of EU competence in the field of criminal procedure (which the Government accepts only to a limited extent[116]) (Article III-171). There would be a very large transfer of power from Member States to the Union in the area of criminal justice (see page 12 of evidence below).

270. The text has been amended since its early version: the Treaty now provides for minimum rules to facilitate judicial co-operation in criminal matters 'with a cross-border dimension' on the mutual admissibility of evidence between Member States[117], the definition of individual rights in criminal procedure and victims rights. The remit may be extended by a unanimous decision of the Council after receiving the 'approval' of the Parliament. A new paragraph has been added stating that minimum rules will not prevent Member States from maintaining or introducing a higher level of protection for the rights of individuals in criminal procedure (Article III-171).

271. We welcome the limitation of action in the field of criminal procedure to cases having a cross-border dimension, which is in conformity with the recommendation in our earlier Report.[118] We also welcome the tightening of the wording on the admissibility of evidence, but regret that the adoption of such rules remains subject to majority voting.

272. The provision on substantive criminal law has also been redrafted (Article III-172). Measures in the field would take the form of European Framework Laws (and not of European Laws which are directly applicable) - this means that Member States will retain a level of discretion in the implementation of EU standards.

273. Like the earlier draft, the provision includes an exhaustive list of offences for which the EU has competence to act - but the list may be expanded by the Council acting unanimously and after obtaining the consent of the European Parliament. Approximation may also take place where it is necessary to ensure the effective implementation of an EU policy where there has been harmonisation (an example would be fraud). In these cases, the type of law-making procedure will be the same as the procedure followed for the adoption of the harmonisation measures.[119]

274. We welcome the safeguards in this provision. However, we are concerned that Articles III-171(2)(d) and 172(2) would permit the extension of EU competence in criminal law and procedure without the need for a Treaty amendment and thus for ratification by national parliaments. We accordingly call for any such extensions of competence to be subject to the prior approval of Parliament in each case (as we have recommended in paragraph 85 above (Flexibility Clause)). We note that the Foreign Secretary has told the House of Commons: "we will oppose…measures that would undermine our system of common law and criminal law"[120].

275. In spite of opposition from our own Government and the lack of consensus between the Convention members, the provision on the establishment of a European Public Prosecutor (EPP) has been retained (Article III-175). It has been amended and provides for the possibility of the EPP Office being established not 'within', but 'from' Eurojust by unanimity in the Council and with the consent of the Parliament. The Government's White Paper[121] makes clear that they see no need for the Prosecutor "who would have power to decide - at EU rather than national level - how to investigate and prosecute serious crimes".

276. As we stressed in our earlier Report, this Article is a surprising and undesirable inclusion in the Treaty.[122] We recommend its deletion, although the provision for unanimity in this case means that any one Member State could veto any proposal actually brought forward.

277. Article III-174 confers a broad mandate on Eurojust, whose actions cover "serious crime affecting two or more Member States or requiring a prosecution on common bases". As we mentioned in our earlier Report, it is questionable whether Eurojust should be given such an open-ended brief.[123] It would be preferable to define Eurojust's mandate on the basis of specifically enumerated offences.

Police co-operation

278. The scope of Article III-176 (on police co-operation between national authorities) has been tightened, with the vague reference to the possibility of adoption of 'any other measure that encourages co-operation' by majority voting being removed from its second paragraph. Paragraph 3 enables the adoption of measures regarding operational co-operation, but this is subject to unanimity in the Council.

279. The provision on Europol (Article III-177), along with the arrangements for parliamentary scrutiny referred to above, continues to define Europol's mandate through a general reference to serious transnational crime, terrorism, and forms of crime which affect a common interest covered by EU policy. As we mentioned in our earlier Report, a defined exhaustive list of offences would be preferable (possibly set out in a Protocol annexed to the Treaty).[124]

100   We have already referred in paragraph 211 above to our ongoing work on the European Court of Justice.  Back

101   See HL Deb 9 September 2003, cols 188, 245 and 257. Back

102   See our comments on this on our 9th report 2002-03 HL Paper 61.  Back

103   As the final Report of the Convention Working Group has noted, 'the battle against crime is an area in which the European Union can demonstrate its relevance to its citizens in the most visible way' CONV 426/02, 2.12.02, p.1. Back

104   See note 23 above: SN 173/03, p.8. Back

105   See paragraphs 56-59 above.  Back

106   Unanimity is required for the adoption of measures on family law (Article III-170(3)); decisions to include areas of criminal procedure in the Treaty (Article III-171(2)(d); the establishment of a European Public Prosecutor (Article III-175(1)); measures on operational co-operation between national police authorities (Article III-176(3)); and police operations in the territory of another Member States (Article III-178). Back

107   Articles III-170(3), 176(3) and 178 provide for consultation. Consultation is also required in Article III-164 (administrative co-operation). Articles 171(2)(d) and 175(1) on the other hand require the 'comment' of the Parliament. 'Comment' presumably means 'assent' but this is currently not clear. Back

108   The Court will have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member States or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security, where such action is a matter of national law- Article III-283. Back

109   See Articles 35 TEU and 68 TEC, both limiting considerably the Court's jurisdiction in AFSJ matters. Back

110   The separation between 'legislative' and 'operational' tasks has been one of the key objectives of the Convention's AFSJ Working Group (see CONV 426/02). The creation of a Standing Committee dealing with operational matters reflects this move. Back

111   Europol's Role in Fighting Crime (5th Report, Session 2002-03, HL Paper 43). Back

112   Explanatory Memorandum, paragraph 27. Back

113   29th Report, session 2003-03, HL Paper 133. Back

114   Although presumably the 'Title IV' Protocol will have to be redrafted in view of the merging of the pillars in the draft Treaty. Back

115   Paragraph 25. Back

116   According to the Explanatory Memorandum, the Government remains firmly opposed to giving the EU wide-ranging competence to harmonise criminal procedural law but it may be necessary to develop 'some light minimum standards' in the areas where people facing criminal proceedings in a Member States of which they are not a national would be disadvantaged by virtue of that fact- (paragraphs 32-33). Back

117   According to the explanatory note accompanying the revised Treaty text, this wording has been inserted to 'obviate any misunderstanding': the sole purpose of the provisions is to establish minimum standards such that evidence obtained in conformity with those rules can then be used in proceedings in other Member States, but without prejudice to the freedom of the court to take into account other evidence in accordance with its national law. (Doc. CONV 727/03, 27.5.03, p.32). Back

118   The Future of Europe: Constitutional Treaty-Draft Article 31 and draft Articles from part 2 (freedom, Security and Justice), 16th Report, 2002-03, HL Paper 81, paragraph 54 (p.30).  Back

119   The Explanatory notes to the amendments make clear that there must be a link to harmonisation measures already adopted by the Union and that the legislator must in fact assess whether criminal sanctions prove essential to ensure the effective implementation of the policy. (Op. cit., p.32, emphasis added). Back

120   HC Deb 16 September 2003 col 798. Back

121   Paragraph 85. Back

122   Op. cit., paragraph. 59 (p. 33). Back

123   Op. cit., paragraph. 61 (p.34). Back

124   Op. cit., paragraph 68 (p.38). Back

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