by Sir Neil MacCormick (1941-2009)

(The following is an extract from Chapter 1 of Neil MacCormick’s short book Who’s Afraid of a European Constitution? (2005). MacCormick was an articulate advocate of a conception of political life that combined aspects of communitarianism with a strong sense of the value of personal liberty. The subject of his (1989) Knox Lecture was ‘Is Nationalism Philosophically Credible?’).

A Democratic Deficit

Since 1 January 2004, the United Kingdom has recognised and is operating the ‘European Arrest Warrant’ system. This has been achieved through Part I of the Extradition Act 2003. The system enables an arrest warrant issued in one member state of the European Union to be executed by a judicial order in another. This is subject to various safeguards. For example, there has to be proof of the identity of the individual before the executing court as the individual named in the warrant to be executed. Appropriate forms must be used, and use of the warrant is restricted to allegations about offences belonging to a statutory list of very serious offences. There are various negative conditions that block the use of the warrant, such as that there must be no ground for suspicion that the individual is being arrested for purposes of religious or racial persecution, or on account of sexual orientation or the like.

However, no part of the judicial process in the UK involves any qualitative assessment of the evidence prima facie available against the individual. There is a radical departure here from traditional extradition procedures (which remain in force in respect of non-EU countries). It is presumed that Courts or other competent legal authorities throughout the EU act in a fair, reasonable and responsible way in issuing warrants for arresting people suspected of serious crimes. One ground for this assumption is provided by Article 6 of the Treaty on European Union. Under it, all member states in the EU are required to observe the rule of law and fundamental human rights as recognised in the constitutional traditions of the Union’s states and, more particularly, in the European Human Rights Convention. Each Member State ought therefore to assume unless the contrary is proven (by invocation of Article 7) that every other EU state conducts its criminal justice system in accordance with the same common minimum standards of respect for rights of persons suspected of criminal misconduct.

When what became Part I of the Extradition Act was being debated in the Westminster Parliament, many voices of concern were raised both in the Commons and the Lords, and some were raised in the press as well. Basic liberties, it was said, might be at risk because of oppressive foreign prosecutions without any real safeguards being available such as English habeas corpus or Scottish ‘hundred and ten day’ rule. Courts in the UK might be utilised as instruments to facilitate prosecutions – and detention for long periods pending prosecution – in criminal justice systems falling well short of the rigorous standards of justice observed here, it was said.

At least, however, one might think, the democratic will of the UK Parliament prevailed. What is done to enforce European Arrest Warrants is done by the will of and under legislation enacted by our own elected representatives. What could be more democratic than that? Anyway, if it does not work satisfactorily, those same representatives can in their own wise judgement revoke or amend it, can’t they?

Well, no. They can’t, nor could they in the first place amend the Government’s Bill that became the 2003 Act. Why not? The answer is that the United Kingdom had an obligation under the Treaty on European Union (‘TEU’ hereafter) to give effect to Council Framework Decision of 13 June 2002 ‘On the European arrest warrant and the surrender procedures between Member States’ (2002/584/JHA). Framework Decisions of this kind are made under Article 39 of the TEU, and create a binding obligation on all member states to enact appropriate legislation according to their own constitutional arrangements in order to bring the framework decision into effect as law on the same terms throughout the Union. So actually Parliament could not amend the Bill, except perhaps if it had seen a way to bring it better in line with the Framework Decision. Nor can Parliament unilaterally repeal it either, except as part of a programme to renounce UK Membership of the EU, by repeal of the European Communities Act of 1972 and subsequent associated legislation including that ratifying the Maastricht Treaty.

Still, it could be said, the democratic will was really being served, because the Framework Decision was a decision by the Council of Ministers. Our elected government took its full part there, and did so following an agreement at the European Council (‘the Tampere Summit’) to act most speedily in favour of more effective mutual recognition of judicial decisions in criminal matters around Europe.

Alas, this is at best half true. Things are improving somewhat, but at the time of the Framework Decision, all meetings of the Council of Ministers were held in private, indeed, in secret. Each would be preceded by even more impenetrable meetings of the Committee of Permanent Representatives (COREPER). This is not the ‘Brussels bureaucracy’, if by that you mean the European Commission and its civil service. But it is the national bureaucracies meeting in confidential conclave in Brussels to prepare the ground for their Ministers. In the upshot, anyway, it is almost impossible for the Parliaments of the Member States to have, in advance of such a decision, any effective debating or decision-making process that secures effective answerability of their Ministers for the line they take on it. Nor can the European Parliament at present fill this gap effectively. For under Article 39 of the Treaty on European Union, Parliament is only consulted. Here, it does not have the power of co-decision as an equal legislative chamber alongside of the Council. It has that full legislative role in a whole lot of issues mainly affecting the ‘common market’, though not even all of it, for really sensitive matters like the Common Agriculture policy and the Common Fisheries policy are kept well clear of full co-decision. All the more so are Union matters involving defence and foreign affairs and those (like the arrest warrant) touching on Justice and Home Affairs.

Thus we can conclude that democratic controls are sadly lacking in matters which may go to the very heart of the basic liberties of human beings and citizens throughout the EU. The Arrest Warrant is a case in point. The idea is, let us concede, a perfectly reasonable one in itself. But it should never become law just on the say-so of Ministers set up for doing it by COREPER, insulated from parliamentary answerability either in their home parliaments or in the European Parliament. This is true even though the requirement to consult the European Parliament entails a thorough and public discussion of such a proposal first in Committee and subsequently in Plenary Session on receipt of a report prepared by the responsible committee. A rapporteur will have carefully worked over a draft report in dialogue with other members of the Committee interested in the issue, with Commission officials and perhaps even the responsible Commissioner in person, and with Council officials as well. In this procedure, Parliament is able to suggest amendments and improvements, and get a public airing for them (some of us proposed an amendment to build a kind of ‘European habeas corpus’ into the Arrest Warrant procedure. But this made no headway since it was considered too late to influence the final text and since it was known to be unacceptable to the Council.)

The Council is, however, under not the slightest obligation to pay any heed to what the Parliament says. Significantly, Parliament was assured at the time of giving its approval to the Report on the arrest warrant that it would at an early date be balanced by a measure allowing for ‘Euro-bail’. This was a plan to facilitate conditional release of persons in pre-trial detention in a different member state from their own, on account of the availability of the Arrest Warrant to ensure non-default on the conditions of bail in such cases. No proposal has yet taken shape on this, and my understanding is that Commissioner Vitorino had to let the matter drop in the face of lack of Council support for the ‘Euro-bail’ idea, so to some extent Parliament may have bought into the Arrest Warrant proposal on a dodgy prospectus. All in all, the absence of full democratic accountability in such matters should be viewed with real concern.

This is the kind of concrete example that gives vivid content to the oft-mentioned ‘democratic deficit’ – there is a real, not just a theoretical, loss to citizens in the control their representatives can exert, even upon basic aspects of civil liberty.

If it were not possible to deal with this problem, we would have ground to be deeply concerned about the continuing acceptability of membership in the European Union. Those who attack it as undemocratic in its core would have real ammunition for their case. The good achieved by having the Union might really be outweighed by the damage that comes from undermining democracy – just as the cross-party ‘SOS democracy’ group in the European Convention and the European Parliament have contended.

Very well, then: can nothing be done? Yes, most certainly something can be done. There are three things in the [recently] proposed Constitution of the EU that will bring about exactly what seems to be needed. The first thing is to ensure that Member States’ Parliaments are given better advance awareness of proposals that are before the Council, for then they will have better ability to check on their own ministers’ activity at the Council. The second is to abolish the rule of secrecy concerning deliberations and votes in the Council when it is making laws, for then Ministers will also be better answerable after the event. The third is to ensure that the European Parliament is not left in the position of a mere consultee in the enactment of laws affecting fundamental liberties of all Europeans. The confederal character of the Union indeed justifies the legislative role of the States’ governments in the Council of ministers and preparatory agencies like COREPER and its sub-committees. But to be democratic as well as confederal, the Union has to have two legislative chambers, and the second, the Parliament, is the one that represents citizens directly and in a broadly fair way through the principle of proportional representation.