Examination of Witnesses (Question 1-19)|
WEDNESDAY 9 JANUARY 2002
1. Minister, welcome to the European Scrutiny
Committee. I understand that you are now meeting at a quarter
past twelve, so whilst not guaranteeing that we will be able to
finish our session, we will do our utmost to try and finish our
questions in order to allow you to get to your meeting if at all
possible. With that in mind, I will ask the first question, Minister.
Article 1(1) of the Framework Decision now defines a European
arrest warrant as a "court decision". Does it follow
from this that Member States are not free to designate a body
other than a court as an issuing or executing judicial authority?
(Mr Ainsworth) Thank you, Chairman, for
attempting to accommodate me. We had no idea how long your proceedings
would take having never appeared in front of you before and I
thank you for the opportunity of coming and trying to explain
the current situation with regard to the arrest warrant. With
regard to your question on Article 1, the procedures are to be
between judicial authority and judicial authority with only assistance
in terms of administrative assistance from any central authority
and, as you quite rightly say, it is now spelt out in Article
1 that it is to be a court decision to be taken. I know there
were some initial concerns raised by Members I think of both Houses
that potentially these warrants could be issued by police authorities,
but that is not the case. Clearly it must be a judicial authority
and we anticipate the same judicial authorities that are currently
applying for extradition within the European Union will be using
the powers of the European arrest warrant and it will be a court
decision taken, judicial authority to judicial authority. In England
and Wales the judicial authority will be the Bow Street Magistrates'
Court as it is currently.
2. Just to clarify that point a bit further,
does it not follow from this Article that the courts in this country
are not obliged to recognise and enforce a warrant if it comes
from a body which they do not recognise as a court?
(Mr Ainsworth) Well, the judicial authority will be
designated by the issuing State, but it will have to be that,
a judicial authority and a court, so it will not be for the British
authorities to say what is and is not a court in another European
State, but it will not be possible for authorities that clearly
are not courts, that are not judicial authorities to issue requests
for European arrest warrants as they will not be recognised.
3. Can we be sure that this will be made clear
in the Extradition Bill?
(Mr Ainsworth) Well, the whole thing will need to
be spelt out within the Bill. I think that it is now clear within
the Framework Decision where you will see in later Articles that
it says that the requirement is between the judicial authority
in the issuing State to the judicial authority in the executing
State and quite rightly Article 1 says that the European arrest
warrant shall be a court decision. I am not certain there is any
further clarification and I am happy to try and understand concerns
that there may be remaining, but it appears to me that it is very
clear that this cannot be a police authority, but it must be a
court, a judicial authority.
4. Minister, I find your answer extremely difficult
to accept because you have already contradicted yourself to a
degree by saying that the UK would not be able to decide what
is a court in another country, but you said at the same time that
this would be a matter of judicial authority to judicial authority.
This is not just a matter of semantics and there is a deep concern
about these arrangements. It is not just a party-political question,
but this is actually about justice for individuals in the United
Kingdom who could find themselves in an utterly impossible position
in relation to matters which are regarded as criminal in other
countries. Have you actually made an analysis within your Department
of the nature of judicial authorities throughout every single
one of the other Member States, including the accession countries
because if you have not, then it follows that you do not actually
necessarily know what the nature of these judicial authorities
is and this is a very serious matter which could affect any one
of our constituents.
(Mr Ainsworth) Mr Cash, I would be very surprised
if I were able to satisfy you on all of these issues. I am not
trying to be in any way provocative in saying that, sincerely
I would be very surprised. Throughout the document, in every Article
you turn to, you will see that the "judicial authority"
is referred to in the executing state and in the issuing state.
We already have extradition arrangements with all European countries
and we look at extradition in the individual cases with those
authorities. Yes, there are different legal systems that apply
in different parts of the European Union, but there are clear
judicial authorities who apply for extradition and who will be
the authorities that have the power to apply for a European arrest
warrant. Those judicial authorities will be reported under the
Framework Agreement, they are the judicial authorities that will
have that power and it is clearly stated in the Framework Decision
that it will be a court decision. You will need to spell out what
your fear is.
Mr Cash: No, I am afraid that will not be the
way round, Minister.
5. Order, order, let the Minister finish and
you can come back, Mr Cash. Please continue, Minister.
(Mr Ainsworth) As I say, I think it is pretty clear
that we are talking about judicial authorities and only judicial
authorities will be able to apply. We are not talking about accession
states by the way, we are only talking about Members of the European
Union. Yes, at some time in the future those accession states
will potentially become full members and they will have to comply
with all the provisions of the ECHR and then they will be accepted
into these arrangements and recognised as such.
6. You say that it is pretty clear that we are
talking about judicial authorities, those are your words just
used. All I can say is that if you have not actually made an analysis
of the nature of the procedures and the manner in which the so-called
courts are going to operateand this is not a question of
euro scepticism and/or euro phobia and whatever else is implied
lurking in the back of your mind on this subject; this is a question
of law and it is a question of analysis. You still have not answered
my question which is whether in fact you have done the analysis
I requested. Could I put this to you: are you, in fact, now going
to do so, because if you cannot come up with an answer to the
question I put, a lot of people, quite rightly, will be deeply
worried about what is going to happen in the run-up to the introduction
of the Extradition Bill.
(Mr Ainsworth) Can I try to satisfy you in saying
that I do not think there is any doubt that the British judicial
authority, for example, Bow Street Magistrates' Court in the case
of England and Wales, will not only not have the ability but will
certainly not execute a European arrest warrant that comes from
anything other than a judicial authority in another European state.
7. Would you be kind enough finallyand
I cannot ask the question more than once moreto let us
have an analysis of what is a judicial authority and/or court
as described in this Framework Decision in respect of each Member
State so that we are in a position to be able to make a judgment
in the run-up to the Extradition Bill as to what meaning will
be attached to those words?
(Mr Ainsworth) I could provide you with a list of
all the different authorities who have looked at extradition arrangements
over many years.
Mr Cash: We know what the arrangements are here
in the UK.
8. Order, order. Minister, please carry on.
(Mr Ainsworth) The principle, Chairman, which we are
acceptingand if members demur
from that principle then there is not going
to be any way of satisfying themis that the countries with
whom we are about to enter this arrangement have all signed up
to the ECHR, they are all our European Union partners, and there
are huge benefits that can flow from mutual recognition of their
systems, and there is not the necessity for ourselves to vet every
aspect of those partners' procedures. If there are members who,
as I say, demur from that, they are not going to be happy with
this direction, but that is the position of the Government.
9. A minor point, I think the Minister was touching
on it earlier on, on the question of the accession states and
the judicial competence of their authorities is obviously one
that is under scrutiny in the acquis process. In a number
of those there might be some concerns that they have quasi military
courts which still operate. Is it going to be clear in the Bill
that comes out the status of courts-martials, for example, the
military courts, even our own, and whether they would be recognised
as judicial authorities. Would they have to go through a non-military
court process to be recognised as appropriate judicial authorities
for the purpose of using these arrest warrants?
(Mr Ainsworth) We are working with and trying to assist
all of the accession states to come up to the kind of standards
that are going to be required of them to have access to the Union
and access to the kind of facilities that we are bringing in here.
So we would not accept that there are going to be countries that
will continue to have lower standards of justice than that required
by the ECHR and which are normal within the European Union and
yet have access to the use of the European arrest warrants.
10. Would the concept of a court-martial be
recognised as judicial authorities for the purposes of this arrest
warrant, even our own court-martial system?
(Mr Ainsworth) I am not sure about the situation as
regards military courts.
Mr Connarty: I think that should be clarified
in the Bill.
11. Can I take us on a little bit and raise
the question of definition of offences under Article 2(2). One
of the things that is significant here is that the concept of
dual criminality is not required. Instead, there is a list of
offences which are definedor, rather, not defined only
describedand some of the descriptions are fairly vague
and all-embracing such as "racism" and "xenophobia"
and "motor vehicle crime", for example. Do you not think
that the implication of that and the fact there are different
definitions of what precisely those terms mean in different Member
States will take us gradually towards a situation of some kind
of harmonisation of criminal law at an EU level? Is it that a
fair statement and, if it were, would you welcome such a move?
(Mr Ainsworth) I think quite the reverse actually.
In the modern age we have a clear choice about where we go with
regard to future recognition and judicial co-operation with our
European partners. We either stick with the kind of cumbersome,
and there is no doubt about it, antiquated system that we have
at the present while we recognise that there is increasingly free
movement of their nationals within our country and our nationals
within their countries and we just accept that it can take years
and be a very long process and often a process that thwarts the
ability to apply justice where someone has crossed the border,
or we go down the road of mutual recognition, or the other alternative
is to try to establish some body of European law. I would have
thought that it is far more acceptable to our citizens that we
go down the road of mutual recognition in order to provide adequate
justice in that modern situation, in that modern setting, rather
than attempting to invent some kind of European law that applies
to all the countries. So I see mutual recognition as an alternative
to that which you describe. When we turn to the generic list I
understand some of the concerns that arise from the list. The
arrest warrants themselves will not be able to be framed in the
terms of that list, they will have to be framed as a specific
offence in the issuing country. So, therefore, let's say in the
area that comes under swindling, no-one will see a European arrest
warrant that says "this person is accused of swindling".
They will see a European arrest warrant from another country or
from this country going abroad which says that "this person
is accused of counterfeiting documentation in order to allow them
to access somebody else's bank account." It will have to
be framed in terms of a specific offence that falls within those
terms, and the warrant will only be accepted if it is framed in
such a way. If we were to try to identify every single offence
rather than have these broader descriptions, then it would be
a very long list indeed, and it would be tantamount to trying
to encapsulate dual criminality in a massive list that covered
every single situation. I do not really know what the choice is
and whether we could have a framework list that says only in these
areas is dual criminality abolished.
12. I am sorry, Minister, I was following your
argument but now I am a bit perplexed. You did say in response
to my colleague's question that the warrant would have to state
explicitly the crime for which the person was being charged. You
then went on to say that would not be the case, that it would
be covered by the generic. I am afraid that is not what I understand.
(Mr Ainsworth) There is no intention to deceive. It
is an arrest warrant. Let us say if we are applying for someone's
return from Germany who committed a crime in this country, the
offence that is described on the arrest warrant will fall within
that area, it will name a specific offence that is relating to
a crime with that minimum sentence within that threshold sentence.
It will only be valid if it does name a specific offence in British
law in order to have that person returned to this country. Those
generic terms are there in order to tell people in what category
they can frame those requests. The actual arrest warrants that
are sent or received will have to name a specific offence that
falls within that area.
13. I want to go back to the principle of the
Bill. A great concern that I have is as a result of a conversation
I had with a senior police officer, who said of the, I do not
know how many exactly, 100 top criminals in the United Kingdom
not a single one of them lives in the United Kingdom. What I want
to know is how will this European Arrest Warrant improve that
situation as far as bringing justice to those people who have
committed crimes in this country are concerned but are living
in other parts of the European Union?
(Mr Ainsworth) Our procedures, as they apply at the
moment, apply to our European partners as well as other countries
and are extremely cumbersome and they take many, many years, which
is a deterrent for application in the first place. We are not
the easiest country from which to get extradition and we have
not got an exceptional record in this regard. We often get criticised
by other countries for our refusal to extradite people to other
countries. We have a difficulty with criminals living in other
European countries who are accused of committing crimes here.
It is bound to be a far more streamlined situation, it cuts out
the involvement of the executive. It cuts out political involvement.
It recognises judicial authority and a request for a return of
an accused person. That is going to be a much faster procedure
and it is going to be far more difficult, I think, for people
to, therefore, escape justice by merely crossing a border which
is freely and easy crossable in the modern age. That is the whole
purpose to the arrangement at the moment. We have situations with
extradition requests for European partners currently on-going
that have been dragged out for years by constant judicial challenge
and delaying tactics, and that cannot be in the interest of justice.
14. Can I move to another subject, Article 4(7)
of the Framework Decision allows the executing State, for example
the United Kingdom, to refuse to surrender a person in circumstances
where the issuing State is asserting its jurisdiction. Could you
tell us, was this an amendment, a provision that the United Kingdom
was pressing for and supported? Can you assure us that exemption
will be taken up when you bring in the forthcoming Extradition
(Mrs Tayler) This particular paragraph in this article
did go through numerous redrafts because it is an extremely complex
and an extremely difficult concept to frame. The particular wording
here was, indeed, supported by the United Kingdom.
15. What is the definition you would put on
extra-territorial? When would a country be in breach of this amendment,
(Mrs Tayler) The reason it is framed in a rather complicated
manner is it is trying to do two things, it is trying to prevent
an injustice on the one hand but capture the situation where extradition
would be right. An example of preventing an injustice is where
a United Kingdom citizen, somebody who is in the United Kingdom,
is carrying out something in the United Kingdom which is legal
here but in another country, another member has extra-territorial
jurisdiction, where it is an offence in that country and they
want to extradite the return of a person from the United Kingdom
to that country. This will prevent that, it is clearly a case
of an injustice. The other limb of that is not to prevent extradition
where it would be right to extradite the person where the country
has extra-territorial competence.
Mr Connarty: I look forward to seeing the draft
16. Could you explain why, going back a few
months, this whole business of the European Arrest Warrant was
really being so largely brought forward on the basis of the events
of September 11 and the tragedy that occurred then? Why is it
that we have agreed to extend the nature of this Arrest Warrant
across the board to the offences that are stipulated in the Framework
Decision rather than confine it to a much, much more limited arena
(Mr Ainsworth) Your description of the facts do not
fit the facts as I see them at all. We announced the intention
to modernise our extradition arrangements going back some long
time. We issued a consultation document back in March of last
year. That consultation document spelt out our intention to streamline
our extradition arrangements, not only with our European partners
but with other states. Yes, of course, the events of September
11 gave some focus and some impetus to get this agreed and I think
that if there are any members of the House trying to suggest that
effective extradition is not relevant to action against international
terrorism that is a very strange position, indeed, that is not
the origin of these proposals. Why on earth should it be limited
to simply terrorism, the intention was there? It is a public document
and if there are any members who want to check that out it was
made public in March. The responses to the consultation were published
and placed in the library and are available on the Home Office
website. It is not correct to say that the origin of these proposals
was 11 September.
17. I am sure we can end up with some extremely
surprising results in the context of the failure to deal with
the distinction between different kinds of crimes, do you accept
that a British doctor who assists in euthanasia in the Netherlands
or Belgium, his acts may be lawful in those countries but it would
constitute murder under the law of the United Kingdom, yet he
would have to be surrendered by Belgium or the Netherlands, unless
those countries rely on Article 4(7) and refuse to surrender a
person. What do you think about that?
(Mr Ainsworth) We said that we have given commitments
to committees of the House in response to the scrutiny process
that we are looking at. We will address those issues of conscience
and come back to the House in the framework legislation. This
is a Framework Decision. It does not dictate in every detail how
we frame the legislation that we bring forward to the House. Yes,
the legislation must comply with the Framework Decision, but there
is no requirement on us to go further than that, and the terms
of the legislation will be subject to scrutiny in the normal way,
so the issues that the honourable gentleman raises are not being
forced on us by the European Union, they will be decisions that
will be taken by this House when we come to deal with the detail
of the legislation that we bring forward.
18. To start with could the Minister explain
when the European Parliament is expected to reach its final opinion
on this text?
(Mr Ainsworth) We are expecting them to report back
in February but there is no definite time.
19. Has he taken the opportunity to explain
to members of his own party who sit as MEPs some of the concerns
of this House?
(Mr Ainsworth) Have I taken the opportunity to talk
to members personally?