TCS Daily

Constitutional Deliberations

By Matthew Elliott - April 21, 2003 12:00 AM

"Two steps forward, one step back," is how one Conventioneer described the deliberations on the proposed European Constitution to me-an analysis with which most participants would agree. Where they differ is that those who support further European integration (sometimes known as the 'Eurofederalists') rue the one step back. Whilst those who oppose further integration (commonly known as the 'Eurosceptics') see the one step back as a ploy to win over a largely sceptical public.

Nowhere has the 'two-step one-step theory' been more applicable than in the discussions on the future of the 'Area of Freedom, Security and Justice' (AFSJ), i.e. matters dealt with by the Home Office in Britain, by the Interior Ministry in France and by the Ministry for Justice (until last week) in Iraq. The third piece of the Constitutional jigsaw focused on the AFSJ and included proposals for a European Public Prosecutor to investigate serious cross-border crimes in the European Union as well as cases of fraud against the European taxpayer. Nordic, British and Irish Conventioneers and representatives from several of the accession states (countries that will be members of an enlarged EU) strongly opposed this proposal, so it will probably become the 'one step back' concession. The draft AFSJ articles (which will form Part Two of the European Constitution) did, however, propose a number of steps forward.

The most important step proposed is that justice and home affairs should no longer form a separate element (or 'pillar' to use the correct Euro-jargon) of the European constitutional framework. Instead, AFSJ legislation should be subject to the same procedures governing other European laws, i.e. proposed the European Commission, agreed of the European Parliament and overseen by the European Court of Justice. If the 'community method' were used rather than the existing 'intergovernmental cooperation', national governments would have less control over these matters. This is seen as positive by the Eurofederalists and negative by the Eurosceptics.


Although the European Public Prosecutor (Article 20) will probably be deleted by the final draft, Eurojust is likely to see its powers enhanced by the Constitution (Article 19). The European Judicial Cooperation Unit (to give it its full title) was created to facilitate extradition requests and to support criminal investigations into cases of international crime such as terrorism, trafficking in human beings, computer crime, forgery and money laundering. The unit is composed of a prosecutor from each member state, along with a number of police officers and judges.

Unsurprisingly, the current vice-president of Eurojust, Olivier de Baynast, called for "a stronger definition of Europe as a common judicial area to which all magistrates in Europe would have to be committed." Measures supporting this vision include "the initiation and coordination [by Eurojust] of criminal prosecutions conducted by competent national authorities", and European legislation on "the training of the judiciary and judicial staff".

The difficulty with these proposals from a British and Irish perspective-with an Anglo-Saxon 'common law' tradition-is that they are grounded in the Continental 'Napoleonic' judicial system. The 'Corpus Juris' proposal, for example, with the concept of pre-trial (or prevention) detention, under which suspects may be locked up for up to nine months, run contrary to the 'habeas corpus' tradition of common law. Judicial cooperation is one thing, judicial harmonisation is quite another.

Common Asylum and Immigration Policy

Another important development, which has caused surprisingly little controversy, is the creation of a common asylum and immigration policy. The basis of the European Union's current asylum system is the Dublin Convention, which was agreed in 1990 and came into force in September 1997. The aim of the Convention is to solve the problem of 'asylum shopping'-asylum seekers travelling to the member states with the most generous asylum systems. The Convention is based on the principle that applications for asylum should be made in the member state where the asylum seeker entered the EU. Although appealing, this principle has not worked in practice because it is difficult to prove where the asylum seeker entered the EU.

The EU's response to the failure of the Dublin Convention is more harmonisation. 'Dublin II' aims to end asylum shopping by standardising the treatment of asylum seekers across the EU. This common asylum and immigration policy (Articles 10-13) would be reinforced by the creation of a European Border Guard (or 'a common integrated management system for external borders' to quote the draft Constitution).

This proposal received enthusiastic support from the accession states who emphasised the need for burden-sharing with those responsible for large sections of the common external borders (a principle enshrined in Article 13). But they received a less enthusiastic reception from the existing member states, some of whom saw it as undermining a power which is as integral to a country's independence as the right to set taxes or wage war. Having said that, when it comes down to sovereignty versus the 'asylum crisis', the public will probably accept these proposals.

Public Opinion

If, as seems increasingly likely, ratification of the Constitution is subject individual national referenda in each of the member states, Conventioneers and national governments will have to take more notice of public opinion than they otherwise would. A Eurobarometer opinion poll conducted at the beginning of the Convention process suggested that although people across Europe felt that justice and home affairs matters were important, they did not want centralisation in this field.

In the poll conducted last April, the fight against organised crime and drugs trafficking ranked third (after peace and security and the reduction of unemployment) in priority and had the support of almost 9 out of 10 Europeans. Although a very large majority of those canvassed were in favour of decisions being taken within the EU on the fight against terrorism (85%) and trafficking in human beings (80%), only minority of those surveyed were in favour of European-level decisions being taken on justice (58% against) and police matters (63% against).

These figures suggests that the public would not accept the creation of a "European FBI", for example, as one over-zealous Conventioneer suggested. But if the final Constitutional draft proposes one step forward rather than two, and if they err on the side of cooperation rather than centralisation, it is likely their proposals would be approved.

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