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Constitution – changes to “justice” provisions

Posted by Richard Saturday, May 08, 2004

This Blog on the Irish “secret constitution” deals with “justice” issues.

Charter of Fundamental Rights

The existing draft specifies that "The Union shall seek accession to the European Convention for the Protection of Human Rights..." This is now changed to: "The Union shall accede....". No messing about. If we agree the constitution, in we go! This was the Charter, readers will recall, that Vaz famously declared had no more significance than the Beano.

Judicial co-operation in Civil Matters

Here, Article III-170 allows the Union to "develop judicial co-operation in civil matters having cross border implications. However, there is a significant strengthening in the provision in the Irish amendment. Paragraph 2 (f) (the whole paragraph specifying the areas where the Union may take action), reads in the original:

to ensure... "...the proper functioning of civil proceeding, if necessary by promoting the compatibility of the rules on civil proceedure applicable in the Member States".

If this is not bad enough, it is now strengthened to:

"...the elimination of obstacles to..."

This empowers the Union to take direct action to legislate on the harmonisation of the procedures in civil courts and the law applicable thereto, and considerably strengthens the existing provision.

Criminal law

There are also amendments to the criminal law provisions. Article III-171 does the same for criminal law as Art III-170 does for civil.

Here, there have been concerns expressed that the EU is aiming to standardise criminal law - corpus juris and all that. These concerns are apparently recognised in an amendment in the Irish draft, with an additional section, summarised as follows:

“Where a member of the Council considers that a draft European framework law... would infringe the fundamental principles of its legal system, it may request that the draft law be referred to the European Council... (when the procedure is suspended) After discussion, the European Council may:

(a) refer the draft back to the Council, which shall terminate the suspension (i.e., continue making the law) or

(b) request the Commission or the group of Member States from which the draft framework law emanates to submit a new draft; in that case, the act originally proposed shall be deemed not to have applied.”

One point here is that, in contrast to other provisions which impose procedures on the European Council, this is very wishy-washy. No "shall", and no specification of voting procedures - unanimity or QMV... just a vague "may".

But the key point is that none of the member states have a veto on the Union making laws in the criminal field. their only right is to have the matter referred to the European Council, which "may" act, under an unspecified procedure. Effectively, the amendment concedes considerable power to the Union, limiting the power of the member states to resist new laws on this issue.

The European Public Prosecutor

Article III-175 in the original draft gives the power for the Union to set up a European Public Prosecutor's Office. However, this power is considerably strengthened by the Irish presidency.

There is an additional paragraph (para 4), authorising the European Council to extend the powers of the prosecutor. The decision must be unanimous but, hitherto, any increase in power would need a new Treaty. Now it can be done administratively, outside the tortuous framework of treaty-making. It is now considerably easier to extend the powers of the prosecutor some time in the future.

And Mr Blair is hardening up his stance?