Examination of Witness (Questions 1-19)
WEDNESDAY 19 MARCH 2003
RT HON
DAVID HEATHCOAT-AMORY
MP
Chairman
1. Mr Heathcoat-Amory, welcome to the Committee.
It is nice to see you again. I expect we will be seeing you at
the Standing Committee later on today. Can you tell us a bit about
how the Working Group came to its recommendations?
(Mr Heathcoat-Amory) Yes, Chairman. This
is a very timely hearing because we had the conclusions of the
Working Group at the end of last year, but, in addition to that,
I have just got back from a plenary session where the next tranche
of constitutional Articles were published, though not yet debated,
covering this whole area of freedom, security and justice. The
new Treaty Articles are based on the conclusions of the Working
Group, but in a number of important respects they go beyond them
and the result is a very radical change to our immigration and
criminal justice system if they are implemented in the Constitution.
The inter-governmental pillars of the EU are to be absorbed into
the single institution or structure of the new Union. So the police
and criminal justice policies which are at present subject to
unanimity and the initiative of Member States will become part
of the mainstream Community method and in particular, as the new
clauses make clear, they will be subject to what is now called
the legislative procedure, which is a new term meaning qualified
majority voting and co-decision, that will become the norm and
there are very few exceptions to that. Immigration and asylum
will be the subject of a common policy, again obviously by QMV
and as the new Article makes clear, this will "ensure the
absence of any controls on persons, whatever their nationality,
when crossing internal borders". There is no opt-out from
that mentioned in the draft Constitution. We do have an opt-out
from Schengen at present. On the criminal law side, it is proposed
to approximate and write minimum rules for serious cross-border
crimes or where the common interests of the Union are affected
and also in criminal procedures and that goes rather beyond the
conclusions of the Working Group. In addition, there is a very
big new proposal which was not recommended by the Working Group
on the setting up of a European Public Prosecutor, although that
would require unanimity by Member States if that was to be carried
through. I think overall, in summary, these are momentous changes
particularly to our common law tradition which in a number of
important respects will have to harmonise with continental traditions.
I would oppose this all the way through. I do not think it creates
a more democratic Union. I think it is in danger of undermining
the powers of national parliaments which is contrary to the mission
given to the Convention by the Laeken declaration. A lot of the
proposals are to be enacted by European laws which will have direct
effect and will not require enacting legislation by national parliaments.
I think the whole package is not going to bring the Union closer
to the people as represented in national parliaments.
Mr Steen
2. Can you just tell the Committee how you got
on with the Working Group?
(Mr Heathcoat-Amory) I have been on two working groups.
The first one dealt with complementary competences, a terrible
Euro jargon for powers, and I found that was a fair discussion
of the issues, including minority opinions. However, the Working
Group that discussed these matters of justice and home affairs
was different and I was very shocked at the degree to which the
final report did not record dissident opinions, so it was not
really a discussion document. I was sometimes alone in expressing
objection but not always. The Irish Government's representative,
also Tim Kirkhope, an MEP and sometimes Lady Scotland from the
other place, all of us to various extents disagreed with the conclusions,
but the persistent use of the phrase "The Working Group suggests
. . ." or "The Working Group recommends . . ."
is simply untrue because there were objections which are, frankly,
not recorded and it is even more alarming that the recently published
draft Articles go even further than the conclusions of the Working
Group. I think it was a disappointing exercise and I felt it was
driven from the top, particularly by the Secretariat and in the
teeth of what I hoped were reasonably expressed objections.
Angus Robertson
3. Welcome to the Committee, Mr Heathcoat-Amory.
It would seem that with such a technical aspect of work it would
be important to take a lot of advice from qualified sources. Could
you tell the Committee a little bit about the range of experts
at work consulted as part of your deliberations? Was it an extensive
list of experts or was it not? Do you think that the Member States'
different legal traditions were considered adequately?
(Mr Heathcoat-Amory) On the question of advice, we
took evidence from a number of witnesses at the start, including
legal experts and also from representatives of Europol, of Eurojust
and practitioners in border control activity and so on. I did
receive some advice, including legal advice, from the Foreign
Office here and of course the House is good enough to pay for
a researcher of my own who helped me materially, but I am not
a lawyer myself so I simply hoped to bring some common sense to
the issue. On the second question of the different legal traditions,
there is a nod in the direction of respecting different legal
traditions, it is in the first part of the draft clauses, but
it does not penetrate the substance and it was noticeable that
the Irish Government were also concerned that the common law tradition
is materially different in our rules of evidence and court procedures
and in my opinion this is ignored in the substance of the report
and I think that is a worry in that if we are going to harmonise,
that is either they come over to our tradition or we go over to
theirs, I do not think the British criminal law system is prepared
for this.
Mr David
4. You have given an introduction as to what
the report basically suggests, but I wonder if you could spell
out for us what the particular implications for police co-operation
and criminal justice co-operation are and what it actually means
in practical terms?
(Mr Heathcoat-Amory) Police co-operation at an operational
level was less controversial, it has been going on for many years
in Interpol. We also had the Director of Europol describe the
procedures and he did also make the point that one of the problems
he faced was not obstruction at Member State level but simply
the lack of a working language. This is an unsolvable problem
in the European Union until we decide on two or three working
languages. My aspect on this was to try and get existing systems
working better rather than leap ahead into new legislative changes
and instruments which were not being called for by those witnesses.
So at the operational level I think the recommendations are reasonably
acceptable, although it is quite noticeable that again the draft
clauses have gone further and there is a call for co-operation
with regard to internal security which is in slightly veiled language,
but it includes other specialised services responsible for internal
security which probably means our intelligence gathering systems,
and to that end it is recommended that certain legislative procedures
shall be adopted by laws and framework laws in those areas. So
we are pointing in the direction again which goes way beyond what
the Working Group recommended.
Mr Cash
5. As you know, Mr Heathcoat-Amory, we had a
case in the Court of Appeal yesterday which showed that Article
3 of the European Convention on Human Rights as implemented through
the Human Rights Act 1998 was in conflict with section 55 of the
enactment in question, I think it is an Immigration Act. You know
I am against the idea of this European Constitution in principle
so I would reject the whole lot lock, stock and barrel. The Government
is beginning to recognise that there are areas within the European
Convention on Human Rights which are causing these difficulties
and that we may have to legislate independently. Where we find
an extension to qualified majority voting, and with it co-decision
of the European Parliament to legislate, I use the word "euphemistically",
but at any rate to pass Council decisions on asylum and immigration
matters, visas, policies, measures in judicial co-operation, etcetera,
do you agree with me that this is essentially an extremely undemocratic
way to go in these terribly sensitive areas because by qualified
majority voting the other Member States will be gathering together
to make decisions affecting these vital matters, including asylum
and immigration? And whereas at the moment we are able either
to legislate on our own account through the will of the British
people or, alternatively, to be able to amend subsequently or
appeal legislation in relation to the Human Rights Act once the
European Convention, according to the first Articles that have
already been put forward, is rolled into the European Court by
reference to the general principles, do you not agree that we
would then find that the European Court would be adjudicating
on these matters and we would have our jurisdiction taken away
from us? In other words, it is both undemocratic and our jurisdiction
would be significantly reduced, in fact I would go further and
say eliminated.
(Mr Heathcoat-Amory) Perhaps I can draw Mr Cash's
attention, which may alarm him even more, to the draft Article
12 which says, "The Union shall develop a common immigration
policy aimed at ensuring at all stages the efficient management
of migration flows".
6. It is a nightmare, is it not?
(Mr Heathcoat-Amory) And much the same is reflected
in the asylum and border provisions, including the setting up
of integrated border management systems. Of course, it is unrecognisably
different to what we have at the minute and indeed what we have
taken care to opt-out of at Amsterdam. I have also noticed that
the Prime Minister has made some remarks about the possible need
to rescind or denounce certain provisions of the European Convention
on Human Rights and it is true that at the same time we are going
to be adopting the EU Charter of Fundamental Rights which will
definitely be incorporated as a legally binding document in the
Constitution, so that goes in rather the opposite direction. It
is also true—this comes to your democracy point, Mr Cash—that
if we want more control over our own policies, particularly our
borders, it again goes rather in the opposite direction to hand
these matters over by qualified majority voting to the Union and
our Home Secretary has made remarks about judge made law apparently
overriding the will of the House. That will certainly happen or
could happen if we develop a completely common policy by QMV which
we would have no prospect at all of overriding and in my view
this takes the decision-making further away from the people we
represent. As in the Laeken declaration, we are told to bring
the Union back closer to the people, to make it all more democratic,
I do have a problem with that and I vigorously expressed that
both in the Working Group and in the plenary debate and I am afraid
there is no echo of that in the published report and that was
essentially my complaint about the procedures.
Jim Dobbin
7. There was a section of this report which
favoured a shared right of initiative and there was a recommendation
to replace Third Pillar instruments by First Pillar instruments.
How did you feel about that? Were you able to support that?
(Mr Heathcoat-Amory) The right of initiative?
8. Yes.
(Mr Heathcoat-Amory) As we know in the present Treaty
in this area, the initiatives are shared between Member States
and the Commission and that is to some extent reflected in the
draft Articles, but it goes rather further than that and there
is an inescapable greater right of initiative given to the Commission.
I have problems with this right of initiative because I do not
think we would tolerate that in our own system. If a group of
20 unelected people had a monopoly of initiative in our own democracy
we would not tolerate that. Therefore, I think the right of initiative
should be more generally shared and should perhaps even extend
as far as national parliaments deliberating collectively at Union
level. I think this goes slightly in the wrong direction. It is
not the right of initiative but rather the right of disposal of
actually law making that alarms me more because it goes into new
areas for which there is no precedent whatsoever in the present
Treaties.
Mr David
9. Can I just follow through a little bit on
that because in some ways that is quite a surprising recommendation
that is made in the report. We are talking in general terms about
the desire to have power going out to Member States to a greater
extent, but I think there is a strong case to be made for the
Commission retaining the right of initiative as the institution
which is charged with responsibility, acting collectively in the
Union's interests. Do you not think that is a strong point?
(Mr Heathcoat-Amory) Just to be clear on the change,
as Mr David knows, the immigration and asylum policies which at
Amsterdam were taken out of the Third Pillar and have gone into
the Community Pillar mean that for five years the right of initiative
is to be shared between Member States and the Commission, then
it goes to the Commission, that is accelerated in the draft Constitution.
No, I am afraid I think that the right of initiative should also
remain shared. The Commission is supposed to be against monopolies
so why is it retaining jealously this right of initiative over
legislation, particularly as it can very often thereby choose
the legislative vehicle? I would just draw the Committee's attention
to a parallel report that has been published about the legal instruments
whereby Directives will become framework laws and existing regulations
will become known as European laws which will be directly binding
on citizens without the need for that law to be transposed into
national law by national parliaments. If you extend that power
to justice and home affairs you can see that the protection that
we have at the minute whereby, for instance, a European arrest
warrant has to be subject to legislation in this House could be
changed if they chose a European law and made it directly binding.
In the draft Articles it is very frequently stated, for instance
in dealing with criminal procedures, that it is open to them to
use the European laws rather than framework laws and I think that
is a very big shift and to put that power in the hands of the
initiating body, the Commission, I think is undemocratic.
Mr Cash
10. It also includes conventions and that is
very alarming because, after all, it is through these conventions
that we get into a huge muddle when they are not properly debated
in Parliament and they just get punted through. So effectively
by putting conventions in with framework decisions and decisions
in that new category that you described the national parliaments
are effectively eliminated altogether from that process, and do
you not think that is a very serious state of affairs?
(Mr Heathcoat-Amory) Conventions will go completely,
that was a recommendation of the Working Group, because they are
thought to be slow and cumbersome, but they do give the right
to national parliaments to debate the issue however incompletely.
The Working Group did salvage something for national parliaments
by " . . . recognising the continuing role for national legislation
through exclusive use of Directives or their successors in approximation
or substantive criminal law". Directives need to be transposed
by national parliaments. That has been ignored in the draft Articles
completely and instead it opens up, as I have just mentioned,
the possibility for approximation and indeed criminal procedures
to be enacted by directly applicable legislative instruments.
Angus Robertson
11. Mr Heathcoat-Amory, I am sure most people
would agree it is a reality that criminals do not respect borders
and that most people would welcome measures which would effectively
crack down on criminals who do not respect borders. Does it not
make sense to have a legal base in a new Treaty permitting approximation
in certain areas of criminal law that would perhaps ease prosecution
and help the crackdown on crime? Is that not something that we
should welcome?
(Mr Heathcoat-Amory) We are all very conscious of
a need to work certainly operationally across national frontiers
and indeed that has been going on for many years. We have substantial
sharing of information and intelligence with countries outside
the European Union, such as the United States. It is not clear
to me that we need a European Constitution to do that. I also
think there is a case for mutual recognition of judicial decisions,
but I do not see the need for further harmonisation, still less
a common European prosecutor. I think what we overlook here is
that the success of a criminal justice system depends on public
consent. There must be a degree of ownership by the people because,
let us face it, the police, magistrates and judges occasionally
make mistakes, but if it is our system and accountable, however
indirectly, to elected people and to a Home Secretary or a Lord
Chancellor, we can then correct those mistakes and accept the
outcome. When the whole system goes to a continental level I think
we lose that and this comes back to the democracy point and we
saw a glimpse of this in the plane spotter case involving British
tourists in Greece. Though I happen to be sympathetic to the Greek
Government over that. I think if you are a tourist and you photograph
military aeroplanes in someone else's country you ought to learn
to respect their laws. This Constitution and its draft Articles
are based on the proposition that it is one giant system that
can all be made to work in a similar way and therefore we have
got to accept other people's procedures, evidence and witnesses
and so on. I think that is dangerous and threatens to cut the
thread that links a citizen with the criminal justice system.
Mr Cash
12. Were you in favour of the recommendation
for a legal base in the new Treaty permitting approximation of
certain areas of criminal law?
(Mr Heathcoat-Amory) No, I was not and I gave as many
reasons as I could for that, but one can read the report in vain
for any discussion of that. It does not say that the group was
unanimous in this, but it certainly does not include the arguments
against it. What I particularly objected to was that approximation
should go ahead not only in serious crimes of cross-border dimension,
which of course in a sense can encompass pretty well any crime
because criminals also travel, assets travel, and therefore it
is not difficult to claim a cross-border dimension, but where
the crime is directed against a shared European interest, I think
that again is pretty general. I note again that the draft Articles
we have now been given specify that ". . . in areas of crime
. . . affect a common interest which is the subject of a Union
policy if criminal sanctions prove essential to ensure the effect
of implementation of that policy". Therefore, in an area
like the environment it could be deemed necessary to have criminal
sanctions which we may not have nationally, but by using European
laws by QMV we could have to implement in our own criminal justice
system new criminal sanctions against or affecting environmental
policy, whatever the views of this House. All that goes beyond
even the recommendations of the Working Group and it is to that
that I object. It is also advanced that it should not just affect
serious crime of a cross-border dimension but also in cases where
the nature or impact of the offences are of, "a special need
to prosecute them jointly". It is clear in the notes that
what they are getting at here is something like terrorism, where
the act perpetrated only concerns a single Member State but there
is, "undeniably a need to prosecute them jointly". I
take that to mean that if there is a terrorist outrage affecting
a single Member State that would still become subject to this
section because terrorism is thought by definition to include
more than one Member State. So I think this is a very imprecise
definition which could open up vast areas of the criminal law
to approximation, which is a form of harmonisation, by qualified
majority voting.
Mr Tynan
13. The group seems to have had very interesting
discussions and you have made clear what your view would be as
regards the European Public Prosecutor and the Public Prosecutor's
Office. It would appear that some in that group were supportive,
some were against and some had a different idea. Obviously the
chairman was in a very difficult position trying to draw it together.
Could you say where the group ended up as regards the European
Public Prosecutor?
(Mr Heathcoat-Amory) The Working Group did discuss
this and indeed on page 20 of our report it says that we did deliberate
on this but we were divided and indeed that is the conclusion
of the paragraph, "The discussion in the Group showed that
members were divided on this issue." So it was rather surprising
to some of us that the mechanism for setting up a Public Prosecutor
finds its way into the draft Constitution. My objection was particularly
this, that if we have a principle of mutual recognition it accepts
the diversity of criminal justice systems throughout the Union,
but if you have a single Public Prosecutor you are taking an opposite
approach, which is to unify the systems and I think this is very
difficult because it is not clear if the Public Prosecutor would
sit in an inquisitorial capacity as we see on the Continent or
perhaps as part of a common law tradition or as in Scotland where
I think there are slightly different procedures again from our
Crown Prosecution Service in England, you would have to choose
in other words. So you are trying to create a single system out
of diversity whereas the previous approach that I did have some
sympathy with was to recognise diversity but to get more recognition
across national boundaries. So this goes way in the opposite direction.
It certainly did not have the support of anything like the majority
of the Working Party. I am afraid it is typical of this whole
procedure that there is cherry-picking going on and someone in
the Presidency or the Praesidium or the Secretariat, which of
course is dominated by the Commission and those who work in Brussels,
take things they like and put them in and then it is a frightful
job for objectors to get them taken out.
Angus Robertson
14. You mentioned briefly an awareness that
of course there is more than one criminal justice system in the
UK, but much of the discussion today has focused on our system
and by that I mean the English legal system. There is no direct
representation from the Scottish Parliament which has responsibility
for legal matters in Scotland and so yourself and your colleague,
Gisela Stuart, are by extension, if not by election, representing
the interests of people north of the border as well. Could I ask
you what understanding you have of the Scottish legal system,
what effect these measures are likely to have on the particular
nature of the Scottish legal system and what discussions you have
had with representatives of the Scottish legal profession about
these matters?
(Mr Heathcoat-Amory) I have been to Edinburgh twice
to take part in events associated with the Convention, one of
which was held in the Scottish Parliament. I am also myself personally
aware of the differences although not from a practitioner point
of view and I am told by my Scottish friends that the Scottish
system is definitely superior to that in England.
Chairman
15. It is a rumour spread by Scots!
(Mr Heathcoat-Amory) In the plenary sessions there
were interventions by Professor McCormack and Lord Maclennan who
reminded us of the Scottish tradition. I think I did my bit to
stand up for diversity because I think it is perfectly possible
to have diverse systems in Europe that nevertheless work together
at an operational level where appropriate or can recognise judicial
decisions in the way I indicated earlier. All I can say is that
the draft now coming out will simply overwhelm those considerations
and everybody will have to fit into a common policy which either
could be forced on us by qualified majority voting or in the case
of Scotland I think it is even worse, I think they will simply
become wholly marginalised and they will just be considered, at
best, part of the UK system.
Mr Cash
16. There is another factor as well, which relates
to accountability, because the law officers in this country and
indeed the Lord Advocate in Scotland are accountable to their
respective parliaments and of course this would not apply in the
context of the EPP and Eurojust, they would escape this accountability
and that again comes back to the democratic question. I hope you
would agree with me, but on the other hand it does bear repetition.
You have made the point repeatedly that there are dangers for
democracy in these matters and it is not just a matter of coming
at it with predetermined views, on any analysis what you have
been saying to us ought to be alarming. I do not know whether
it will ever get out into the public domain either on television
or radio, but I sincerely hope it does.
(Mr Heathcoat-Amory) Just in case I might accuse myself
of being biased in any way, I think in fairness I have to draw
the Committee's attention to Article 3 on the role of national
parliaments where it does suggest that the national parliaments
may participate in the evaluation mechanisms concerned in this
area, that is a permitted right which I think probably we have
already. It also mentions the enhanced role for national parliaments
in subsidiarity which I know we discussed at another time. I think
in every other way national parliaments are in danger of being
sidelined here and therefore the traditional system of accountability
through Parliament is wholly forgotten here, although it would
be claimed by those who wrote these drafts that the European Parliament
in some respects can replace this.
Mr Breed
17. I would like to thank you very much for
coming along because I think already you have given us an awful
lot of cause for thinking about this subject. Just on the role
of the national parliaments, you obviously do not feel that they
have been sufficiently consulted in this whole area. Was that
just your opinion or was that the general feeling of the Working
Group? Are there areas where you would give additional roles to
the national parliaments even at this stage before decisions are
taken?
(Mr Heathcoat-Amory) National parliamentarians
were represented in the Working Group but we tend not to hunt
as a pack, we are not an institution in the European Union whereas
it is always noticeable that the MEPs know each other well and
think much more institutionally in guarding their position and
I think the Commission representatives on the working groups are
full-time professionals who seem to regard it as their job to
protect and advance the powers of the Commission and they are
also represented in the Secretariat. We tend to be rather diluted
in our influence to that extent. I think national parliaments
are going to lose powers in the obvious sense that there is a
transfer of authority and law making from national to European
Union level where they are not represented and also in the potential
use of what are now called European laws producing regulations
which, as I have explained, have a direct effect. More generally
than that, I think that the public look to us primarily to guard
their rights in criminal justice and I think that the link gets
too long when this is supposed to be done in a European institution.
18. So essentially you are saying it is a movement
very much in an upward direction away from national parliaments
into the EU. Was there no discussion about the way in which some
roles might come back from the European Union to national parliament
level and making very clear distinctions about the competences
of national and European parliaments?
(Mr Heathcoat-Amory) There is no suggestion here of
any return of powers at all. I have in the plenary suggested there
should be a return valve and some matters are better dealt with
nearer to the people we represent. For instance, parental responsibility,
we did have discussion about family law and on parental responsibility,
I thought that that should have nothing to do with the European
Union, but it is down here in black and white now on page 19 of
the new draft in draft Article 14, "The European Parliament
and the Council in accordance with the legislative procedure"—which
means QMV and co-decision—"shall adopt laws and framework
laws concerning parental responsibility." I remind the Committee
again that when it says "laws" that means they are directly
binding, so Parliament would have nothing to do with that before
or after.
19. So subsidiarity is dead?
(Mr Heathcoat-Amory) I think what has happened in
this Constitution is that it is actually failing to draw any real
distinction between what is done at Union level and what is done
at state level, instead a lot of these things are shared, that
really does not advance the matter. So instead of that they are
trying to bolster the concept of subsidiarity, but I know of no
other Constitution in the world that proceeds like that and I
do not see how subsidiarity, which after all has been in Treaty
law ever since Maastricht and has not worked very well, can do
the job of creating a clearer distinction between who does what.
Again, the whole point of this Constitution, and apologists for
it claim, at the very least it will draw clear limits around what
the European Union can do. That is emphatically not the case and
the only hope is that under the subsidiarity provisions we will
achieve recognition for things that are better done at national
level, but as it has failed for the last 10 years I am not really
sure that writing it into a constitution will do any better.
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