The first test of the Lisbon Treaty produced a progressive result for civil liberties and security, argues Claude Moraes
The argument about the Lisbon Treaty and whether it was right or wrong to pool more sovereignty has tended to overshadow the practical debate over how the left could use majority voting in both the European Parliament and the European Council to deliver progressive results.
Although press headlines have understandably been about the economic crisis in Greece and what is being done to tackle it, the European Parliament used its new voting powers under the Lisbon Treaty for the first time last week to end the deeply flawed interim Terrorist Finance Tracking Programme (TFFTP ), agreed between the United States and EU. Established under George W Bush, this saw the monthly bulk transfer of details concerning all of our major high street bank transactions to the US for the purpose of fighting terrorism.
It was a unique assertion from the European Parliament under its new “consent procedure” to strike out an agreement cobbled together between the EU and the Americans during the period which saw many excesses and ineffective policies, including the detentions at Guantanamo Bay. The so-called Swift agreement saw a private banking consortium, Swift, which handles the transactions of all the main EU (and British) banks, allowing US officials to examine any of our individual banking transactions.
Following the September 11 terrorist attacks on New York and Washington, the US used the TFFTP to force Swift to reveal the data, which it was believed could help to track funding between terrorist cells.When the programme came to light, it emerged that the data was being sent in bulk to the US and, in the view of myself and my colleagues on the centre-left, “becoming a restraint on EU sovereignty and a massive intrusion into the privacy of every EU citizen”.
Riddled with problems, the Swift agreement, rather than being an effective way to fight terrorism, tilted the balance the other way. Our data, if extracted from the bulk transfer by the US, could be kept under American law for up to 90 years. Errors would be difficult to manage and legal redress would not be open to EU citizens on US soil. Purpose limitation, the tests of proportionality and necessity, and the breaking of EU standards of data protection were all areas where the agreement failed.
In November 2009, EU home affairs ministers passed an interim agreement with the US allowing American investigators unfettered access to the data, thus over-ruling the European Parliament’s desire to see the arrangement delayed until the Lisbon Treaty came into force.
MEPs held the view that Swift was a disproportionate, untargeted and ineffective agreement. As soon as our new powers were available, we voted in Strasbourg to terminate the agreement. A progressive majority of socialists, liberals, far left, Greens and some centre-right MEPs were appalled by the apparent wholesale breaking of EU privacy law and the complaints of EU citizens – for example, in Germany, which had seen a series of botched and expensive data-mining efforts designed to catch terrorists.
With the end of the Swift agreement, a new agreement with proper safeguards and reciprocity between the EU and US can be negotiated. The vote may have set a good precedent for the European Parliament’s progressive majority, but it was the progressive MEPs’ view of the breaking of a fundamental balance in terms of rights that was significant.
Of course, British Labour MEPs take the fight against terrorism seriously. As a London MEP, I know that my constituency continues to be touched by post-September 11 realities. However, we will increasingly be called on to get the balance right between security and civil liberties. As Benjamin Franklin said: “He who would put security so far ahead of fundamental freedoms deserves neither”.
For the European Parliament, that test will be a continuous one. Should we install body scanners at every airport? Should we investigate rendition and alleged torture on EU soil? Are anti-terrorism measures such as ethnic profiling effective or disproportionate?
The area of civil liberties, justice and home affairs was probably one of the most sensitive ones for the new parliamentary powers to be used. It seems that, on this occasion at least, the European Parliament has found its progressive voice and voted for the freedoms of its citizens. For progressives, it illustrates the continung need to make the centre-left case in Europe, when and where we have the democratic tools to do so.
Claude Moraes is Labour MEP for London and the Socialist and Democrats Group spokesperson on Home Affairs and Justice in the European Parliament
