48. The first part of document (a) outlines the
Commission's proposals for action on justice and home affairs
between now and the expiry of the Hague Programme at the end of
2009. We share the Minister's caution about some of the proposals
and about those on further action on mutual recognition in civil
and criminal matters, in particular. But we shall reserve further
comment until each proposal comes before us for detailed scrutiny.
49. In our view, the proposal for the use of the
passerelle is of constitutional importance. Decisions
on, for example, what constitutes a crime, what sanctions there
should be for offences, procedural rights and other matters covered
by Title VI of the EU Treaty concern national sovereignty. We
share the Government's concerns about the implications of the
proposal for external competence and national security and about
the need for safeguards. We note with alarm that, for example,
the UK might not be able to make bi-lateral agreements with third
countries for the extradition of terrorists.
50. Moreover, there is the question whether it
would be acceptable for the European Parliament to have the right
of co-decision on measures about police and judicial cooperation
in criminal matters when the most of its Members do not represent
and are not answerable to the electorate of the UK.
51. We have considered whether the "opt in",
described in paragraph 7 above, might provide a sufficient safeguard
if the passerelle were used. We understand that the UK
would not be bound by any measure on police and judicial cooperation
in criminal matters unless it expressly opted into it. There could
be cases where it appeared to be in the national interest to opt
into a proposal soon after the opening of negotiations on it.
Subsequently, however, amendments to the proposal might be agreed
by QMV which radically changed the measure and were unacceptable
to the Government. There is no provision for the UK to rescind
an opt-in. So, once the Government had opted-in to a measure,
the UK would be bound by it as it emerged from the negotiations.
52. It appears to us that, on the one hand, the
opt-in would provide the UK with some safeguards against the imposition
of unacceptable measures. In these circumstances, it might not
be reasonable to block the use of the passerelle if other
Member States which do not have the opt-in want
to make the change.
53. On the other hand, the use of the passerelle
would give the ECJ a jurisdiction in these matters which is has
not got at the moment; the Commission would gain the power to
bring infraction proceedings; and the European Parliament would
be given a role in deciding matters, such as what is or is not
a crime, which are currently preserved for Member States because
they affect national sovereignty. Speed of decision-making is
not a sufficient justification for over-riding a Member State's
concerns about such matters. Moreover, it appears to us that
the proposal to use the passerelle does not offer significant
gains for the UK.
54. It seems to us that there are further important
considerations which need to be taken into account. At present,
because of the requirement for unanimity, the UK takes part, as
of right, in the negotiation of all proposals affecting police
and judicial cooperation in criminal matters. Other Member States
and the Commission have to listen to and take account of the UK's
views. And the Government does not have to decide until the last
minute whether to accept a proposal.
55. If the passerelle were used, we think
it likely that the UK's negotiating position would be weaker because
other Member States and the Commission would be unwilling to take
account of the UK's views unless the Government had opted into
the proposal. And once opted in, the Government could do nothing
if the proposal were subsequently amended by QMV in a way it found
56. Seen from this perspective, if the passerelle
were used, the present certainty about the existence of the means
to protect the UK's interests would be replaced by uncertainty
and risks which do not currently arise.
57. We believe that on a matter of such importance
it is vital that there should be no doubt or equivocation about
the Government's position. We consider this to be essential despite
the Minister's surprising statement in her letter of 30 October
that the Government considers the debate about the passerelle
"to be over". We also believe that the Government needs
to know the views of the House. Accordingly, we recommend document(a)
for debate on the Floor of the House before the passerelle
is discussed by the Council of Ministers on 4-5 December. We also
recommend that document (b) be included in the debate because
it contains information and comment by the Commission relevant
to the use of the passerelle.
58. We share the Government's view about the need
for thorough evaluations of measures on justice and home affairs.
We note the Minister's reservations about some aspects of the
proposals in document (c). We have no questions that we need put
to her about the document and we are content to clear if from