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EUOBSERVER reports 

EU parliament MEPs have reacted furiously to a UK parliament report which questions the right of the European Parliament to make laws on criminal and police matters due to the fact that most of its members are non-British.

Which is not quite the point made by the report but this slight myth is used by Andrew Duff to introduce a xenophobic line of attack on the “European Scrutiny Committee” Duff says the report is “fairly scandalous.”

“This challenges directly and explicitly the legitimacy of the European Parliament to legislate. It is an absurd idea that the parliament would have no right to legislate because it has ‘foreigners’ in it,”

The same line is used by Richard Corbett, UK Labour MEP, called upon like-minded pro-EU members of his party to “protest” against the report by writing to the chair of the House of Commons’ European Scrutiny Committee who is also a Labour member.

“If a matter is to be decided at EU level, then the European Parliament will be involved- and of course it contains non-Brits. Similarly the British Parliament contains non-Scots,”.

The Select Committee on European Scrutiny Forty-First Report; Actually did not mention foreigners or non-British they were quite specific- the problem is that European Parliament Members do not represent and are not answerable to the electorate of the UK.

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.

Passerelle clause Under this, the European Council would be able to agree to abolish all that remains subject to the national veto, decreeing that it be subject instead to qualified majority voting. Neither the House of Commons nor the British people would have any say in the matter.

But Mr Duff argues that if there is a problem in resisting change to QMV in fields where, under the protocol, we anyway have the right to opt-in or out of the decisions taken.

In other words he is suggesting that we would still have a veto for Britian. He is however ignoring the report which makes it clear that the right to opt-in must be made at the start of the negotiations and there is no possibility of opting out if we are not satisfied with the directions of the negotiations.

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.

This all about the proposal by The EU Commission to transfer criminal justice and policing into the first pillar of the EU’s treaties. This would abolish the national veto and would also greatly increase the powers of both the European Commission, European Court of Justice (ECJ) and allow the European Parliament to have a voice over the UK’s criminal justice system.

“The proposal that is being discussed would give the European Commission even more power than it would have gained under the rejected EU Constitution, and would also sweep away some of the safeguards contained in the Constitution such as restrictions to act only in a limited number of serious cross border fields – not the entire sphere of criminal justice as is proposed. The ECJ would become the highest court in the UK’s criminal law system and would begin to determine the substantive criminal law for EU nations.

As the EU legislates in particular areas it gains external competence over them. This means that it begins to represent member states in international negotiations on these issues. Which would mean the UK will lose its right to negotiate bilateral extradition treaties with foreign countries as well as deportation agreements. This could make it even harder for the UK to deport or gain custody of foreign suspects in the future.

In 1997 Tony Blair promised that he would not give up the veto on crime and justice. He said: “we have agreed better arrangements for co-operation on police matters, crime and drugs. However, such co-operation will remain intergovernmental and subject to unanimity” (Hansard, 18 June 1997).

In 2003 Peter Hain repeated the same promise: “Criminal procedures go the heart of our legal systems, and this is one area where we have got to keep unanimity” (European Convention, 3 April 2003).

The Report

And the Gangplank this is an alternative name used by the Select Committee for the description of the passerelle as a “gangplank” rather than as a “bridge” - the usual EU translation.

The term “gangplank” usually refers to a temporary bridge for getting on and off a ship, but in pirate legends, the plank would be used to force victims to walk into the sea. Corbett and Duff, said “I hope this is unfortunate drafting,” noting that a gangplank “is a thing you fall off to your demise – through suicide or murder. You will die after the fall.”

The president of the Commons’ EU Scrutiny Committee, however defended the word as “quite appropriate,” saying “once you go off the end of the passerelle, you give away the power to the commission…so it is like a gangplank more than a bridge. Once you plunge off it, it is difficult to get back onto.”