Select Committee on European Scrutiny Minutes of Evidence

Examination of Witnesses (Question 1-19)




  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.

Mr David

  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.

Mr Cash

  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.

Mr Cash

  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 operate—and 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 finally—and I cannot ask the question more than once more—to 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 accepting—and if members demur

  from that principle then there is not going to be any way of satisfying them—is 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.

Mr Connarty

  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.

Mr David

  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 defined—or, rather, not defined only described—and 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.

Mr Marshall

  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.

Tony Cunningham

  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.

Mr Connarty

  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 Bill?
  (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, or clause?
  (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 Bill.

Mr Cash

  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 of terrorism?
  (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.

Miss McIntosh

  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?

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