A Response to the Hague Programme : Protecting the Rule of Law and Fundamental Rights in the Next Five Years of an EU Area of Freedom, Security and Justice ?

The European Council met on 4/5 November 2004 to adopt a new five year programme for the development of the EU’s area of freedom, security and justice. The area was inaugurated by the Amsterdam Treaty in 1999 cutting across the first and third pillars of the EU to provide what has been presented as a coherent programme for EU action in asylum, immigration, police and judicial cooperation in criminal matters, judicial cooperation in civil and family matters. The development of an area of freedom, security and justice has been among the most controversial of projects launched by the Amsterdam Treaty. The relationship between national sovereignty and EU competence entered a new stage with sensitive questions such as asylum and policing, instead of being exclusively a national responsibility, becoming a field of common legally binding EU law and policy. The articulation of the three concepts of the area: freedom, security and justice, is central to the civil liberties of everyone in the Union. The interaction of democracy, expressing the will of the majority and rule of law, particular in the protection of the more vulnerable members of the community, gives form to the relationship of freedom, security and justice in the systems of each of the Member States.

The transfer to the EU of competences in the field creates a period of transition during which great vigilance is required to protect freedom, security and justice as principles, concepts and practices from unacceptable configurations. At the national level, the accommodation of freedom, security and justice has been the result of great social and political upheaval, including revolutions in many Member States, over the past two centuries. Nonetheless, there is a tendency among some state authorities responsible for security to posit freedom as an obstacle to security. This formulation presents security as a quality independent of the others: freedom and justice rather than in a symbiotic relationship with them. The idea of security as a public good in itself leads to justification of a state of security which too often creates the conditions for social and political unrest. Moments of transition, moreover, provide the circumstances in which various actors, in particular within the state, find opportunities to promote their vision of public good in ways which are not possible in more static situations. Thus this moment when the EU heads of state have set out the second five year programme for the area of freedom, security and justice merits particularly close attention and critical comment.

In this note we set out our main observations and concerns regarding the fundamental principles on which the Hague Programme is based. We would wish to take this opportunity to remind the European Council that security is the outcome of guaranteeing respect for fundamental freedoms and rights through the rule of law. Security is not an end which can be pursued in itself. It is a state of affairs which results from the exclusion of the arbitrary, most importantly, through the State’s respect for the rule of law. The Council should not confuse the means of social order and law enforcement: the police and criminal justice systems, with the state of security.

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