The institutional framework of freedom, security, and justice: Democracy and Justice in the EU

On Wednesday 4th July, Sarah Ludford gave the keynote speech to the Challenge annual conference. Challenge is an EU-funded institution which aims to increase democratic control and judicial accountability in the areas of freedom, security, and justice.

Sarah said:

It is a great pleasure and honour for me to open this conference on democratic control and judicial accountability in an area of freedom, security and justice.

Let me first congratulate Didier Bigo, Sergio Carrera, Elspeth Guild and Rob Walker for their mid-term report on the results of the CHALLENGE project on the Changing Landscape of European Liberty and Security. It will not surprise you that I very much agree with its conclusions on the need to have a 'solid constitutional framework based on the Community method' for EU laws and actions. Only by removing the democratic and judicial deficits can we deliver both effective cross-border security and uphold freedom in a context of respect for justice and the rule of law. I hope to explain a little why this is so.

This debate could not be more timely, coming just one week after the difficult negotiations in the European Council resulting in agreement on a mandate for a new intergovernmental conference to negotiate what we must learn to call the Reform Treaty by the end of the year. The question is whether we will end up with a framework genuinely better and clearer than now for a more democratic and effective Europe in the justice and home affairs area or whether new uncertainties, obscurities and blockages will be created. I will mainly focus on what needs fixing.

This conference is also timely after last weekend's series of bomb attempts in my country and my city. Of course I utterly condemn and deplore the would-be bombings and applaud the swift and impressive police investigation. But the heart of anyone who wants to challenge the simplistic argument that surveillance always makes us safer will have sunk on learning that the plethora of CCTV cameras, car nameplate recognition technology - which is part of the London congestion change - and of course mobile phone records, have all been cited as vital to the speedy police identification and arrest of suspects.

It gets harder to argue that some discrimination and safeguards need to be built in, but on the principle that 'hard cases make bad law', I urge that we not lose sight of the need to preserve our freedoms and human rights, the very things the terrorists seek to destroy.

There are many areas where EU Treaty revision is necessary, but if there is one area where profound reform must be an absolute priority then it is the area of justice and home affairs, The ambitious and complex project of creating an EU area of freedom, security and justice has been built on fragile foundations where cross-border competence has to avoid stepping on too many sovereign toes of Member States. From law and order, asylum and immigration being matters of purely national concern, they have become one of the dominant issues on the current EU agenda, so that today just under 1 in 5 of all legislative proposals from the Commission are in this field.

Opinion polls tell us that European Union citizens expect European action to deliver a real enhancement in security through measures tackling the challenges of crime, terrorism and immigration. They also expect their freedom and privacy to be protected. However the current legal, political and institutional shortcomings often prejudice the accomplishment of real achievements on both counts.

One of the main challenges in this field is to deliver security while guaranteeing civil liberties and respecting human rights. I, like the Challenge authors, reject the 'balance' metaphor in which we are presented with a trade-off or choice between security and freedom. We did see a dismaying regression between the 1999 Tampere programme which saw freedom, human rights and the rule of law as the starting-point and the 2004 Hague programme which prioritised the search for security narrowly defined. Obviously, 9/11 and 3/11 intervened.

In fact the notions of 'security' 'freedom' and 'justice' are intertwined and cannot be put in boxes. Terrorists threaten our freedom through threatening our security. Justice encompasses protection from both attack and oppression. Surveillance is supposed to make us safer and more secure, but a routine invasion of privacy for many of us increases a sense of insecurity. I therefore strongly agree with the Challenge mid-term report assertion that 'the EU is rooted in the principle of freedom. Security is only a tool in support of freedom which must be applied through the rule of law and subject to human rights obligations.'

The task is to push the EU to make an intelligent search for that holistic instead of narrow version of security which focuses on optimising freedom. I think the European Parliament, with my group the Alliance of Liberals and Democrats for Europe in the forefront, has imperfectly tried to do this.

It is a paradox that in the area which touches most upon people's rights, the democratic wing of the EU - and I include national parliaments as well as MEPs - has too little power. In particular, decisions on many issues, particularly those regarding police cooperation and criminal justice, are still taken by unanimity, with no real involvement of the European Parliament and little involvement of national Parliaments, lack of enforcement powers for the European Commission and very limited judicial oversight powers for the Court of Justice.

Changes have been progressively introduced in the decision-making procedures in justice and home affairs with the result that we have now a complex picture. There is a confusing variety of four types of decision-making, three in the Community 'pillar' and one in the intergovernmental policing area. We have Community competence with QMV and co-decision for asylum, illegal immigration, border controls, most visa matters and civil law (except family law), to be called in the future 'the ordinary legislative procedure'. We then have Community competence with QMV but only consultation of the Parliament regarding third countries subject to visa requirements and rules on uniform format for visas. Thirdly - and I hope you are paying attention at the back! - we have Community competence with unanimity and consultation for legal migration and family law. Finally we have the intergovernmental competence with national veto in the 'third pillar' of criminal law and police cooperation that I described.

The existence of two so-called bridging or passerelle clauses, the first one in the EU treaty (article 42) and the second one in the EC treaty (article 67(2)) has offered Member States for many years the possibility to bring at least considerable improvements in the decision-making process in criminal law and police cooperation matters as well as for legal migration and family law. But despite incessant calls of the European Parliament, Commission and of many experts in this area, Member States could not agree to activate them.

The current institutional framework is defective. Some though not sufficient improvements have already occurred in the 'Community' arena of asylum, immigration and borders, and civil law. But the workings of the third, intergovernmental pillar where security and criminal justice measures are decided, and that I will now focus on, has been described to me by someone on the inside as 'an interior ministers playground'. It is secretive, lacking in democratic legitimacy and adequate judicial control, and I would also argue, ineffective. The absence of Commission enforcement powers means a failure to fully implement even the most modest of agreed measures.

Member States often invoke national sovereignty arguments which in reality are nothing more than pretexts for their unwillingness to pool efforts. Their behaviour is often paradoxical. For instance Member States continue to be reluctant to share information among EU police authorities and between them and Europol and Eurojust in the fight against crime and terrorism, the lack of mutual trust justified on grounds of lack of uniform data protection standards. But the same member states have still been unable to agree a binding adequate instrument on data protection rules for exchanges of security information. Then they have had no problem in exchanging data with the US, such as that on air passengers (PNR) or banking information from the SWIFT network, without any effective data protection guarantees.

It is true that EU integration must reconcile the specifics of every Member State's constitution and legal system. The need to safeguard these is sometimes invoked as a reason to retain the veto, especially from the 'common law club' led by my own country and which apparently now consists of the UK, Ireland, Malta and Cyprus - echoes of empire - but also unaccountably of the Czech Republic and Slovakia as honorary members!

But the EU is seeking to create interoperability and interaction among the legal systems, not wholesale harmonisation. Commission proposals are drafted in a general way so as to be capable of implementation in all systems. My own country, so keen to fend off the Napoleonic hordes that threaten 'our way of life', is in any case one of the leaders in successfully working with different legal systems. We have juggled several of them - most notably the Scots and the English-Welsh but also the Irish or at least Northern Irish - for 300 years without major problems. And the differences between common law and civil law systems have in any case narrowed, since laws in common law jurisdiction are almost all codified in statute now.

I was also interested to be reminded yesterday listening to Carla del Ponte that the ICTY in the Hague works with procedures based on a mix of common law and civil law, and I recall that the UK played a major role in setting up the tribunal. So don't let's get hysterical at home about the threat that Brussels poses to habeas corpus and jury trial, we're pretty good at generating those threats domestically, unfortunately!

However these arguments are too often used to sabotage, block or dilute EU level developments and progress. Very important measures for both increasing security and enhancing protection of individual rights have failed to be adopted by the Council because of the current decision-making procedure and a lack of political will.

As regards instruments protective of civil liberties, two crucial proposals for framework decisions on which agreement has still not been reached are worth highlighting, firstly that on data protection in the third pillar and secondly that on minimum rights for suspects and defendants. Both these examples demonstrate the size of the gap between political commitments assumed and concrete actions delivered by EU leaders.

Each time a new EU law in the area of security and exchange of information has been passed in the last few years, we have been promised swift adoption of the essential measure to protect privacy in data exchanges between police and security services. This was the case for the Data Retention directive adopted under the UK Presidency 18 months ago, when the Commission presented the proposal on the availability principle to improve police data exchange, when agreement was reached on the SIS II instruments last December and just last month when the VIS package including the Decision allowing police access to information on visa applicants was passed. So far these promises have all remained purely declaratory statements.

The same holds true as regards the framework decision on procedural rights in criminal proceedings. This was meant to be an essential counterpart to the European Arrest Warrant by putting practical flesh on the bones of the ECHR obligations that are framed in general terms. The aim was to accompany the 'exchange of people' with an 'exchange of rights'. But while Member States were able to reach agreement on the European Arrest Warrant in about three months, admittedly just post 9/11, three years have not been enough for them to agree on rights for defendants in criminal proceedings. As the Challenge report points out, 'the failure to provide sufficiently clear rights for the individuals subject to an EAW has given rise to a series of judgements of the supreme courts of a number of Member states ....challenging the constitutionality of some part or parts of the implementing legislation by which the EU framework decision on the EAW was transposed into national law.'

This has taken up a lot of time and resources and created delays in implementation. People who should have been handed over for trial have not been. Victims have been denied justice. How much better and more efficient for the needs of criminal justice if the EU had set out from the beginning to law a common foundation of rights intrinsically linked to the achievement of security. Similarly, the European Parliament need not have taken the Council to the ECJ over the PNR agreement if they had heeded our warnings about the lack of appropriate data protection provisions.

It is with regret that I have to say that the lack of agreement on the defendants' rights instrument is mainly due to the attitude of my own country, the UK, as the German Presidency confirmed to us last week in a meeting in the LIBE Committee. This is of course less surprising now that we know the UK's illogical and regrettable position on the Charter of Fundamental Rights where our outgoing Prime Minster fought at Dover - or a few miles beyond as it was in Brussels! - for me and my compatriots to be deprived of redress for abuses perpetrated by the EU institutions or by the UK government in the name of EU law.

Forgive me, tongue in cheek a bit, asking if this 'victory in our time' is worthy of the country that produced the Magna Carta and the Bill of Rights which helped inspire the American constitution? Does it reflect the victory over fascism and human rights abuses that Winston Churchill, one of the architects of the European Convention of Human Rights, fought for? Are these the bluebirds over the white cliffs that Vera Lynn sang about? As a patriotic Brit to the core as well as a staunch European I say 'thanks but no thanks'. I am one of those who think British people too deserve to have our fundamental rights safeguarded. The Protocol is of course very unclear; tea in the House of Lords offered to the first person who can persuasively explain to me exactly what it means!

I accept that there is no guarantee that if qualified majority voting were in force for criminal justice and other Third Pillar measures, it would have been possible to reach agreement, given big divergences in Member States' positions. We need not only procedural changes but also a change in mentality. Governments have to change their mistaken belief that protection of data privacy or civil rights obstruct police and security work. In fact it enhances cooperation by increasing trust and confidence, including public confidence.

It is not only protective instruments that have suffered blockage or dilution because of the deficiencies of the current decision-making procedure in the third pillar, but also the security/repressive ones. These include for example the European Evidence Warrant, which according to the Hague programme was meant to be adopted before the end of 2005. This proposal was finally adopted in June 2006 but it is a lowest common denominator agreement which actually deters mutual recognition.

Then we had a proposal on the improvement of police cooperation between Member States at internal borders. After making fundamental changes to arrive at an extremely watered-down result with no added value, the JHA Council meeting in April 2006 decided to suspend negotiations. The famous 'principle of availability' proposal to make sharing criminal intelligence as easy across borders as within them also ran into the buffers.

But, hey presto, aspects of both those measures which Member states could not agree within the EU context resurfaced in the Prum Treaty. This started as a purely international treaty between 7 member states, completely outside the EU - not even 'enhanced cooperation' within the Treaties - and with no democratic input in its drafting, only take it or leave it ratification by national parliaments. It is now being processed through the Brussels machine to be an EU decision, and the democratic bypass persists in that the European Parliament is only consulted which means ignored.

One of the things the Prum treaty/decision does is to oblige all States to set up a national DNA database. The fact that this obligation on citizens is being imposed in this way is frankly a scandal. I guess if the Third pillar is an interior ministers' playground, the Prum formula is their sweetshop!

Member States have a schizophrenic way of thinking: what they cannot agree as an EU measure they can easily agree in a purely inter-governmental framework outside the EU and then transfer it in EU law. Well, if this can happen for a policing measure, how about at least doing the same for data protection?

I am not a purist for the sake of it and in some contexts when EU channels are blocked, cooperation outside the EU legal framework can be a catalyst to progress. Obviously we saw that with Schengen 20 years ago. But EU competence has moved on since then, so there ought now to be the facility for all 27 to move forward. I welcome practical cooperation when that is a genuine alternative to new laws; but generally you need the legal framework for the cooperation to work if it is to be more than bilateral. As a Liberal I am not in favour of legislating or regulating unnecessarily, but mutual recognition usually needs an underpinning at least of common definitions and shared procedures. Unless the EU gets it act together in a collective capacity, its credibility and ability to deliver effective action on crime and terrorism, as well as to do so in a context of human rights guarantees, democratic accountability and judicial oversight is weakened.

There are actually big gaps in transposition and implementation of those third pillar police and criminal justice measures which minsters have agreed to, such as the 2002 framework decision on terrorism, the European Arrest Warrant, the framework decision on the freezing and confiscation of assets and evidence, the framework decision on combating human trafficking......and the list can continue. In fact in its 2006 'Scoreboard' the Commission declared itself unable to prepare the second report on implementation of the framework decision on terrorism because of 'lack of information and of notification of legislative texts by Member states'. So it is a bit rich to hear all the hot air about determination to tackle terrorism and to see all the freedom-restricting measures.

It is clear that if we want to deliver concrete results in Europe on freedom, security and justice, it is crucial that the decision-making process is reformed. The Reform treaty at least offers a step forward. An EU without 'pillars' applying as a rule the Community method or 'ordinary legislative procedure' of Commission initiative, QMV in the Council, co-decision with Parliament and full jurisdiction for the European Court of Justice will certainly bring more efficiency, accountability and democratic legitimacy to the decision-making process and secure more coherence.

However this treaty looks likely to be messier and thus less transparent than the 2004 Constitutional treaty. I always supported the 'emergency brake' facility as a safeguard or at least comfort-blanket against over-harmonising measures. But the plethora of derogations foreseen, the complicated mechanisms of opt-out/opt-in for some Member States or to advance cooperation by 'pioneer groups' of Member States, all inhibit the desirable big leap in efficiency and the transparency and simplicity which would enhance accountability. They risk increasing the complexity through 'variable geometry', possibly leading to a 'several speed Europe' when a single speed one has never really been properly tried. I profoundly regret that the UK (and probably Ireland too) wants an opt-out from the entire area of freedom, security and justice with a discretionary power to opt-in; I think that will weaken our influence and input.

Full democratic partnership and judicial control of a new generation of measures necessary to consolidate the area of freedom, security and justice is essential to protecting the rights of EU citizens. I include in that the appropriate involvement of national parliaments while recalling that their principal job is to scrutinise what their ministers and officials are getting up to, not to create a kind of third legislative chamber. The European Parliament must also look at the mote in its own eye. I am acutely conscious as rapporteur on the Visa Information System that the practice of First Reading Agreements with no committee vote before the final one lacks transparency and I will be asking the LIBE committee to look at this.

The Reform treaty clearly shows the limits of some Member States' intentions to create a stronger Europe truly capable of meeting our citizens' expectations for freedom, security and justice. To meet the scale of the challenges this area creates, we need to show more courage, higher ambition and strong political will.

I wish you a successful conference and thank you for your attention.