The UK in the EU

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Justice & Home Affairs – the Stockholm Programme

Background

Since 1999 the EU has adopted a programme of work in the field of justice and home affairs (JHA) for the following five years; the most recent such programme was adopted in December 2009 and is known as the Stockholm Programme. The purpose of these programmes has been to provide a framework for EU activity in the field of justice and home affairs (now known technically as the area of freedom, security and justice) whilst the detail of which measures to adopt is set out later in the Action Plan agreed by Member States and the Commission.

The Stockholm Programme, and the Action Plan that will follow, are political documents and have no legal force, nor do they create any binding legally obligations on Member States. The specific legislative measures that follow, however, will be important and in some cases may well be controversial. This means that the Programme and the Action Plan will be important to the UK Government over the next few years. There will be a mid-term review of the programme in 2012.

The UK’s involvement in justice and home affairs matters is complex because it has had specific rights to opt in to some measures in this area and to opt out of others, which has caused some difficulties, largely because of the UK’s non-participation in the Schengen Convention. In future, following the Treaty of Lisbon, all JHA measures will be dealt by the Community method; that is they are proposed by the Commission and adopted by the Council of Ministers using QMV with the co-decision of the European Parliament. The Treaty of Lisbon explicitly gave the UK the right to choose whether to opt in to any of the measures in the JHA field - an extension of the UK’s previous ability to opt in or out of aspects of JHA.

JHA – the scope of the EU’s work

It is important to note that the EU’s role in these policy areas is to facilitate co-operation and expedite action where crime or legal disputes cross Member State boundaries – as they inevitably do in the modern world – but they are not intended to replace national laws.

Justice and home affairs covers a wide field of EU activity which first developed through informal co-operation between Member States and later, as a result of the Maastricht Treaty, became one of the three areas (or "pillars") of EU activity. Further information on the history of JHA can be found in the existing Senior European Experts paper, ‘The EU Crime & Justice Policy’.

Three main policy areas are covered by JHA:

- civil law – including issues such as family law, child protection and judicial co-operation;

- criminal law and policing – including the European Arrest Warrant, police co-operation and terrorism;

- asylum and immigration – legal and illegal migration, asylum and the Schengen Convention.

Stockholm Programme

Adopted at the December 2009 European Council, the programme divides into justice issues and home affairs issues, with the former being greater in number. The key themes of the programme were set out in the Conclusions of the European Council:

- Promoting citizenship and fundamental rights – developing an area of freedom, security and justice within the EU in which fundamental rights are protected; this links particularly to proposals in the programme to ensure common standards for accused people in the criminal justice scheme and to protect people’s privacy when sharing electronic data.

- A Europe of law and justice – tackling the current fragmentation of justice across the EU so that, for example, court judgments are mutually recognised and enforceable.

- A Europe that protects – including the development of the Internal Security Strategy for the EU which aims to strengthen co-operation in law enforcement, border management and civil protection (subsequently adopted at the European Council in March 2010). One of the topics to be pursued here is the difficulty of obtaining criminal records information when people move between Member States – this can be important in child protection for example.

- A Europe of responsibility, solidarity and partnership in migration and asylum matters – establishing a common EU approach to migration and asylum problems but one which is flexible so that it meets the differing needs and priorities of Member States.

- The external dimension – the ability of EU citizens and businesses to interact with the rest of the world requires that the external dimension of JHA policy becomes part of wider EU policies and fits with its ambitions in the field of foreign affairs.

Issues raised by JHA

Transparency and accountability

The work of the EU in the field of justice and home affairs has often been criticised on the grounds that there is a lack of transparency and of accountability. The shift of JHA policy from inter-governmental co-operation to operating fully through the Community institutions will improve the visibility and scrutiny of JHA work and integrate it more closely into other aspects of the EU’s work. The European Parliament, for example, will now be jointly approving all JHA legislation with the Council. But the Lisbon Treaty recognised the difficulties of making transparent often complex discussions about sensitive subjects by establishing a new system of national parliamentary scrutiny as well.

The Treaty placed a specific obligation on national parliaments to examine all proposals concerning criminal judicial co-operation and police co-operation to check that they comply with the principle of subsidiarity. Of course, national parliaments will be able to scrutinise all legislative proposals (and, potentially, to challenge them) under the Treaty but this particular provision draws attention to legislation in a notably sensitive area. It should help to ensure greater transparency and greater understanding in JHA work in the future.

Civil liberties and data protection

The growth of security co-operation, following the events of 9/11 and the subsequent London and Madrid bombings, has raised concerns about the proportionality of the EU’s response to terrorism and wider questions of civil liberty arising from cross-border co-operation. Differences, for example, in the use of the European arrest warrant (EAW) have raised concerns that some Member States have interpreted the relevant EU law incorrectly. Poland issued 3,473 such warrants in 2007 – of a total of 9,413 issued by all 27 Member States. Problems such as this can be resolved – in this instance by a dialogue between the Commission and the Member State concerned - and by the courts in the receiving country. They also need to be seen against the benefit of cutting extradition times between Member States from nine months before the EAW was introduced to fewer than six weeks once adopted. Ensuring common minimum standards for people arrested anywhere in the EU - part of the Stockholm Programme – would also strengthen the safeguards within the EAW procedure designed to prevent it being used for trivial offences.

Data protection is a growing issue, as police and security authorities across the world develop large databanks of information that they wish to share with other law enforcement agencies. The European data protection supervisor has suggested that the different types of data protection legislation in the EU could be brought together now that JHA legislation is dealt with in the same way as other EU laws. The Commission is now expected to carry out a review of existing data protection laws. The European Parliament has been very active on this issue over the years (for example, over the sharing of passenger name data with the USA) and its new role in the approval of JHA legislation will strengthen the hand of those arguing for more safeguards when sharing data. It has in fact already rejected an US-EU agreement on sharing financial data on the grounds of the inadequacy of data protection.

The UK Position

The Treaty of Lisbon has strengthened the UK’s ability to decline to participate in JHA legislation, if it so wishes. The Treaty enables the UK to choose whether to participate in any of the measures concerning justice and home affairs. Previously, the UK’s opt-in or opt-out arrangement (it varied according to the field of JHA law) applied to measures concerning the Schengen Convention, borders, as well as immigration, asylum and civil law legislation. The UK did not have an opt-out in the field of police and criminal law measures as these measures were previously adopted by unanimity and not by QMV but it will now do so under the Treaty of Lisbon (along with Denmark and Ireland) – in other words, the veto has been replaced by an opt-out for these three countries.

As of December 2009, the UK had chosen – under the provisions then in force in the Treaty of Amsterdam – to opt in to:

Asylum – all nine measures;

Legal migration – five out of 11 measures;

Borders and visas – two out of 35 measures;

Irregular migration – 11 out of 17 measures;

Readmission treaties [with third countries] – all seven;

Civil law – all 23 measures.

Broadly speaking, the UK opted into civil law measures; most of those concerning illegal migration and asylum seekers; but stayed out of measures concerning legal migration.

The UK has not found itself under pressure from other Member States to participate in measures from which it chose to opt-out but, perhaps surprisingly for some critics of the EU, instead found itself in the position of being unable to participate in two measures that it wished to accede to. This was because the European Court of Justice ruled that the measures concerned – a regulation establishing the EU’s national borders agency (Frontex) and a regulation on national passport standards – were part of the Schengen Convention acquis and therefore not something the UK could opt-in to because it has chosen not to participate in Schengen.

Since the coming into force of the Lisbon Treaty the European scrutiny committee in each House of Parliament is able to table its opinion on whether or not the UK should opt in to a JHA measure within eight weeks of the proposal being tabled. During this period, the Government has said that it will not inform the other Member States of its position and will seek to find time for a debate if either committee requests it.

The UK has been supportive of measures under the Stockholm Programme to improve the sharing of criminal justice information, for example about sex offenders, and to improve practical co-operation between police and security agencies on the ground, but cautious about aspects of the common asylum policy. The UK has a particular focus on the need to tackle organised crime across the EU.

Conclusion

JHA is an area of increasing importance in the work of the EU as the inadequacy of purely national measures within an increasingly economically and socially integrated European area has become more apparent. But it is also a controversial one involving exceptionally difficult questions of civil liberties and data protection. Effective use of the scrutiny powers available to national parliaments will be vital if public support for sometimes controversial proposals is to be maintained.

 

April 2010

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