by Hugo Brady

EU interior ministers are racing to finish a raft of new legislation on terrorism, crime and illegal immigration by the end of the year. One reason for their sudden sense of urgency is politics. Interior officials are anxious to make the most of the last few months of an old regime. If ratified as expected, the EU’s new rulebook, the Lisbon treaty, will give the European Parliament powers for the first time to amend future EU laws in these areas from 2009 onwards.

This is area of international co-operation that has long been the exclusive domain of national governments. For over 20 years, interior ministries – meeting in the EU, UN and Council of Europe – have quietly agreed and implemented inter-governmental agreements on internal security and judicial co-operation between themselves. There was little need to accommodate outside views and concerns. Now officials look nervously to 2009 when euro-parliamentarians should begin to use their new authority.

The ministries are right to be anxious. The European Parliament’s civil liberties and justice and home affairs (JHA) body – known as the LIBE committee – has made no secret of its intention to exercise the new powers to the full. The committee wants to reverse a trend in EU decision-making on terrorism, crime and immigration that many parliamentarians feel is wrongly skewed towards state security at the expense of civil liberties. For example, MEPs have been wary of the member-states’ eagerness to create databases and new information-sharing arrangements for terrorism and other cross-border crimes. They complain that the member-states are conspicuously less interested in reaching an agreement on data protection legislation needed to ensure such data is not mis-used.

The parliament has already demonstrated that it is not afraid to cause the member-states real headaches in internal security co-operation, in order to advance its views. In 2006, MEPs successfully applied to the European Court of Justice to quash an EU-US agreement on the sharing of airline passenger data. (The agreement was rapidly re-negotiated.) The member-states fear similar upsets that could hamper other types of co-operation against terrorism, crime and illegal immigration, if the LIBE committee pursues an agenda defined in outright opposition to the governments’. Some form of rapprochement between the parliament and the governments is needed to avoid a gridlock.

The chief divergence between the two on security matters is really more a problem of style than substance. The language the member-states use to present JHA initiatives to the public is couched almost exclusively in terms of the need to protect citizens from cross-border threats. The language used by the LIBE committee on internal security issues emphasises the need to protect the citizen from the state. Hence their future working relationship must involve a new modus vivendi, one where MEPs learn the language of state security and where the member-states show greater respect for the language of liberty.

The MEPs should bear in mind that their electorates mostly expect JHA co-operation to make them safer. Arguably, they look more to their national parliaments and judiciaries to safeguard their civil liberties. The parliament stands a better chance of achieving its goal of a more balanced justice and security agenda if it can show the EU governments that it is serious about working with them to pass laws that enhance the individual’s security as well as liberty. One idea, symbolic but also highly resonant, would be for the parliament to change the name of the LIBE committee simply to the ‘committee for justice, liberty and security’. Another useful step would be to significantly boost the resources the parliament gives to the analysis of JHA issues. Most proposals in this area are so highly technical in nature that they can only be credibly influenced by those with a full mastery of the issues at hand.

The parliament already enjoys some power over EU policies on border controls, immigration and visas. It has shown itself a perfectly credible partner on security issues linked to these and other areas so long as its role is respected. For example, in 2005 the LIBE committee was successfully wooed by the EU presidency to allow single market rules to be tweaked to allow for the retention of telecoms data for use in terrorism investigations.

EU governments have been dismissive of the parliament’s civil liberties concerns in the past. This is partly because interior ministries believe that it is their responsibility to ensure cross-border security co-operation does not infringe the civil liberties of their own nationals. They should now recognise that MEPs too have a legitimate part to play in this process. A good start would be for officials to involve the LIBE committee fully in the security-related legislation they are currently rushing through. This would be less cynical than waiting until legally obliged to do so under the new treaty. It would also be good politics, setting the tone for a more constructive working relationship in future.

Hugo Brady is a research fellow at the Centre for European Reform.

By Hugo Brady

EU policies on policing, justice and immigration were widely expected to take a big leap forward after the ratification of the Lisbon treaty. But interested outsiders should not assume that new powers for the EU’s institutions will translate automatically into more coherent European action in security and migration matters. In fact, the EU’s governments and its institutions face serious challenges in justice and home affairs (JHA) co-operation in the years ahead.


First, JHA policy-making is becoming more fractious and politically divided under the new treaty. Sensitive issues like terrorism or organised crime are now subject to the same rules as the EU's single market, meaning that the European Parliament can amend or block such decisions for the first time. This may not sound very radical. But for the EU's conservative interior and justice ministries – as well as key partners like the US – it is a brave new world.

Take terrorism. Last February, the European Parliament shocked both EU governments and the Obama administration alike by rapidly using its new powers to vote down the so-called Swift agreement. (This arrangement allowed US intelligence services to comb European financial transactions en masse for counter-terror purposes.) The parliament has since signalled that it will also vote down a modified version of the agreement which officials had hoped might soothe concerns over data privacy. Furthermore, EU officials worry that MEPs may reject any new security-related law on principle. There is an urgent need for EU governments and the parliament to find a new modus vivendi that allows them to work together constructively on such matters.

Second, EU countries complain that it is now harder under Lisbon to project a single voice in international fora when law and order and immigration issues are discussed. Officials are currently at a loss to know who takes the lead on terrorism or corruption issues in, say, the UN or OSCE. Is it the EU's six-month rotating presidency, the European Commission or the embryonic external action service? Although the Commission would bitterly oppose such a move, it should be up to the High Representative for foreign policy to decide in future who is best placed to lead the EU's external representation in these areas.

Third, the Commission's justice and security directorate, which has drafted most JHA legislation since 1999, is set to be divided in two. The split – into separate home affairs and justice departments – is largely at the behest of Viviane Reding, the EU's firebrand justice commissioner. Reding wants to use her new directorate to re-balance the JHA policy area which she believes has been hitherto too pro-American and too security-focused.

The decision to split up the Commission's JHA directorate is probably a mistake. Part of its added value in security and migration matters was the ability to bring all the relevant policy elements – policing, justice, immigration – together under one roof. There is also a danger that the split could result in more in-fighting and a loss of shared purpose. Better checks and balances were needed in EU internal security co-operation. But these have now been provided in the guise of a more powerful parliament and the extension of the jurisdiction of the EU's Court of Justice over all JHA legislation.

Lastly, despite new powers under the treaty, there is a dearth of really strong ideas from either the governments or the institutions about how the EU's JHA agenda should develop over the next five years. EU governments have recently agreed both an 82-page list of proposals for improving JHA co-operation (known as the Stockholm programme) and a wide-ranging ‘internal security strategy’. But the fact that these largely lack substance hints that the future of European co-operation on security and migration issues will centre on consolidating existing achievements rather than launching bold new initiatives.

One priority is to safeguard the EU’s Schengen area of passport-free travel. Schengen ranks alongside the euro as one of the EU's most tangible achievements. Like the euro, each Schengen country relies largely on assurances of good faith from others in the club, in this case that the common border is being maintained properly. But not all Schengen members are trusted equally. French police are increasing their spot-checks on cars crossing the border from Spain, for example, while Finnish border guards routinely check passports of non-EU travellers en route from Greece. To make the passport-free zone work properly, EU countries must agree a more transparent system for verifying border standards. They must also ensure that Romania and Bulgaria – both chomping at the bit to join – are not allowed in prematurely until they have carried out thoroughgoing reform of their police and judiciaries.

The gap between rhetoric and reality in the Schengen area should serve as a warning against future hubris. The EU’s new powers in policing, justice and immigration will only be a success if they result in the member-states adopting policies that seriously address current security and migration challenges. We will soon know whether a vague new treaty, a divided Brussels bureaucracy and a truculent European Parliament will help or hinder that ambition.

Hugo Brady is a senior research fellow at the Centre for European Reform.