Convention set for major police and justice overhaul

Date: 12/06/03

By Dick Leonard

Pillar Three was a result of paranoia and doomed from the start

LET justice be done. Not everybody will be happy with the final compromises being struck at the European Convention, but there is one area in particular in which they have done a first class job, that of justice and home affairs. First admitted as an appropriate field for EU action by the Maastricht Treaty of 1992, progress was shackled from the start by the creation of 'Pillar Three', which excluded it from the normal decision-making processes of the European Community.

Wished on to the newly created European Union by the then UK government of John Major, it reflected its visceral distrust of the European Commission and its paranoid fear of the UK ever being out voted. The consequences were predictable.

Nobody was made specifically responsible for proposing policies, which could in any case only be agreed by unanimity, there was no parliamentary scrutiny, no one was charged with overseeing policy implementation, and there was no provision for the European Court of Justice to rule on their legality.

It was unsurprising that by the time that the Treaty of Amsterdam was concluded, in 1997, hardly any progress had been made, and the heads of government agreed that the system adopted by Maastricht was virtually unworkable.

It was therefore decided that a range of issues formerly assigned to Pillar Three, notably the free movement of persons, immigration, asylum, the crossing of external borders and judicial cooperation in civil matters should be brought within the community framework (transferred to 'Pillar One').

For most of these issues, however, the unanimity rule was retained, and other important questions - such as police cooperation in criminal matters, and the fight against drugs - were left in Pillar Three.

After Amsterdam, and especially after the Tampere European summit in October 1999, when EU leaders called for the creation of an area of "freedom, justice and security", and a Commission directorate-general was established, things began to perk up a bit, but progress was still patchy, especially in the fields still reserved for Pillar Three.

The preparatory work on legislation in these areas is entrusted to a series of working parties, such as those on police cooperation and on Europol, which are organized on an intergovernmental basis. The sole source of policy proposals, then, is member states' initiatives.

There are a large number of these, but very few come to fruition, largely because, in contrast to those produced by the Commission, they tend to be insufficiently prepared.

There is very little preliminary consultation, and they are often not supported by an explanatory memorandum or financial statement.

Very often initiatives are introduced to address purely domestic issues rather than wider European concerns.

It is not surprising that the minority of such initiatives which do not fall by the wayside tend to result in non-binding "soft law" instruments, such as recommendations and conclusions rather than formal legislative outcomes.

Since 11 September 2001, there has been a greater sense of urgency. Nevertheless, there have been continuing delays in the establishment and development of both Europol (the European police office) and Eurojust (the European judicial cooperation unit), - mainly due to deficiencies in the policymaking procedures of Pillar Three.

Just how far European defences against organized crime and terrorism fall short is spelled out in a timely new pamphlet, Guarding Europe, by Adam Townsend, published last week by the Centre for European Reform.

Townsend's argument is that the Schengen agreement, while giving welcome new freedoms to EU citizens, has created open borders for criminals and terrorists, while the forces of law and order continue to be constrained by the national frontiers within which they operate.

The Convention has responded to the challenge with a set of clear and radical proposals, based on the findings of the working group led by former Irish prime minister John Bruton, who has proved to be one of the most constructive and open-minded members of the forum's inner circle, the praesidium. Its key proposal is the scrapping of Pillar Three, with all its law-making powers transferred to Pillar One, with some modifications - one being the retention of the power of initiative for member states, which would henceforward be shared with the Commission.

But this power could only be exercised by at least one quarter of the member states acting together. This should eliminate the majority of futile proposals, while ensuring that any initiative pursued would be proceeded by a wide range of consultation, at least at the intergovernmental level.

The Convention proposes that laws and framework laws should normally be subject to qualified majority voting, and to co-decision with the European Parliament, but exceptions are made for some politically sensitive issues.

These include the conditions for operational cooperation between national police forces and, in particular, the circumstances in which national authorities may operate in the territory of another member state, in liaison and in agreement with the authorities of that state.

Unanimity would also be required to implement another of the Convention's proposals - the establishment of a European public prosecutor's office - charged with "investigating, prosecuting and bringing to judgment perpetrators and accomplices in serious crimes affecting more than one member state and of offences against the Union's financial interests".

Winding up Pillar Three and establishing a more effective framework for decision-making is no guarantee that the EU will be able to achieve its declared objective of creating an area of justice, freedom and security.

It is, however, an essential step on the way.