One European issue currently being considered by the government sounds highly technical, but is none the less causing considerable debate. It is whether the ‘Passarelle’ clause should be used to change EU procedures concerning decisions on law enforcement and criminal matters.

What this means is that the member states can decide (unanimously)to transfer decisions in this field from the specific inter-governmental procedures laid down in the so-called ‘Third Pillar’ of the EU Treaty and switch them to the general decision making procedures of the European Community. If they do so, they have the option of switching to majority voting instead of unanimity, of giving the European Parliament the extra scrutiny powers of the ‘co-decision’ procedure, and enabling judicial review of decisions by the Court of Justice. It could also allow the European Commission to chase up Member States who failed to implement what they have agreed to in the Council of Ministers.

The tabloid headline reaction has been predictable, with screaming headlines alleging that Britain is going to ‘hand-over’ powers in this field to ‘Brussels’, ignoring some basic facts about the matter.

I gave evidence last week on this matter to the House of Commons and the House of Lords scrutiny committees. I drew attention to an excellent report of the House of Lords which is available to read by clicking here. The Lords cite a number of problems with the current procedures, which take up an enormous amount of time, and they conclude ‘that the proposal deserves careful examination’ and ‘caution against any knee-jerk reactions resulting from media coverage’ (paragraph 172). They consider that a gradual transfer from the inter-governmental procedure to the community procedure ‘merits exploration’.

But above all, they put their finger on a crucial point: this is a field in which Britain anyway enjoys the right to opt-into or opt-out of legislation adopted by the European Union. Decisions taken by a qualified majority in which Britain was out voted would not apply to Britain if we didn’t want them to. So, it is other countries’ vetoes (of things that we want) that could be circumvented without Britain needing to accept majority decisions that it would have vetoed.

The Lords report deals with this in its paragraph 178 where it says that ‘as a result, the UK would not have to participate in proposals brought forward, the overnment will need to consider carefully whether the UK should stand in the way of other member states deciding to transfer law competence to the European community’.

As to the merits of using Community, rather than ‘third pillar’ procedures, I note that the Law Society considers that ‘the full incorporation of the justice and home affairs pillar into the community structure offers the best guarantee that rights and freedoms that are in the interests of individuals will be balanced against the security concerns of the member states’ (quoted in Lords report paragraph 119)