Examination of Witnesses (Questions 144-159)
WEDNESDAY 2 APRIL 2003
MS SUSIE
ALEGRE AND
PROFESSOR ELSPETH
GUILD
Chairman
144. Professor Guild and Ms Alegre, welcome
to the European Scrutiny Committee. It is nice to have you here
on this very important subject. Please feel free to add to any
of the supplementary comments that may come from us and vice-verse
and I am sure we will have a good evidence session which we can
all benefit from. Professor, you clearly do not consider that
draft Article 3 gives national parliaments a strong enough role.
Will you tell us more about the role you think they should have.
(Professor Guild) I would like to express
my thanks to your Committee for inviting us here to give evidence.
We think this is an extremely important part of the democratic
process of forming a constitution for the European Union and therefore
we would like to congratulate you on your hard work in this field.
As I teach both in the Netherlands and in France, I would like
to assure you that, in both of those countries, very great and
serious regard is given to your reports which are looked at on
all levels, not only by persons involved in the parliamentary
process but also by academics and non-governmental organisations
as really one of the most important parliamentary contributions,
which perhaps gives me a starting point to answer the question
regarding the importance of national parliaments in reviewing
European Union legislation. Under the Convention, the proposal
which we have on the table, it appears to me that there is an
attempt to give increasing democratic legitimacy exclusively to
the European Parliament to a diminution of the role of national
parliaments. In terms of actual practical arrangement, it seems
to me that the position which a number of parliaments in Member
States have taken, this one in particular, that the national level
is in fact an extremely important part of the democratic process
and is in fact closer to the population and interests than some
other levels means that there is a very strong reason why national
parliaments should be involved in discussion of measures, the
mechanisms for access to information, scrutiny and a mechanism
to input into policy at the European level seems to me to be particularly
important and ought to be included in the Constitution.
Mr Cash
145. I am very concerned about the direction
from which you come with respect to the national parliaments for
this reason. You use the words "an important role" and
you use the word "involved". You may or may not know
that some of us feel extremely strongly that you cannot have a
national parliament operating in the context of what the Convention
is currently thinking. John Bruton, a Member of the Praesidium,
only the other day more or less said that national parliaments
are wasting their time and they had better buck up and realise
that actually it is all over for them. Now, that is literally
the obverse of what some of us think, which is that national parliaments
have to dominate the legislative process and we may get into further
questions. Could you give a further indication of how you see
that because you are taking rather a lower case view of the national
parliaments. Certainly as far as Westminister is concerned, we
do not think, although perhaps we could have some useful reforms,
that there is any reason at all for us to doubt our scrutiny process
or indeed the fundamental basis of our democratic rights and indeed
our predominance, our supremacy and our sovereignty. Do you differ
from that?
(Professor Guild) Thank you very much for the question
which I think opens a very important part of the debate in the
discussion. It is evident in the development of law and politics
in Europe at the moment that there will be a number of levels
at which governance will take place. That is already the case
and that has been the case really since about 1950 with the commencement
of the Council of Europe and then progressing in various different
areas. What is terribly important about this debate in my view
and in our view as an organisation is that it should be seen as
an enhancement of the legitimacy and that to place the discussion
in a framework of competition between the European Parliament
and the national parliaments is to allow the executives a margin
of manoeuvre which is perhaps more than national parliaments or
the European Parliament would want. Therefore, when we get to
a question of which parliament, what form of democracy and which
level is going to be the dominant one, as soon as we frame it
in those terms, we have got ourselves into a fight among forms
of legitimate representation in Europe.
146. We have, yes. That is quite right.
(Professor Guild) Therefore, I think the most important
thing is to get out of that and to look at what the successful
mechanisms are to bring the different bodies representing the
people into a coalition and mechanisms to make it possible to
work together. If I could use the example of the difference between
the degree of, shall I call it, competition between national parliaments
and the European Parliament and the sense of struggle over who
represents the people of Europe in contrast to the way in which
the national courts and the European Court of Justice work, we
see how the mechanisms which were employed in the EC Treaty from
the beginning have, on the one hand, created friction and, on
the other hand, created a mechanism for smooth and useful interaction.
So, as you all know, in the Court of Justice, in the court system,
the national courts send questions they want answered to the Court
of Justice and the Court of Justice fulfills an extremely useful
role for national courts of guidance and interpretation on specific
spheres of European law. I am not saying that one could set up
an identical system, I am merely saying that there are mechanisms
whereby you can bring institutions at Member States and European
level into alignment, where they work well together, enhance and
augment their operation and their other mechanisms, which we have
set up and unfortunately you have in the Treaty at the moment,
that places these bodies at odds. I think we need to be a little
more creative about how we look at democratic legitimacy and how
we can find a mechanism which will be as effective in actually
representing the people of Europe at this level as we found for
the courts.
Mr Bacon
147. Professor Guild, I am pleased to see that
you think that the draft unacceptably limits the role of national
parliaments. Do you agree that, for there to be a democracy, there
has to be a demos?
(Professor Guild) This is one of the debates which
interests me very much. I have been following it since Professor
Wyler began to discuss the question of the demos for Europe about
15 years ago. Recently, I have been doing a little research with
colleagues in other disciplines and other social sciences about
the question of nationalism and people. I would rely, at this
point, on the very famous now deceased anthropologist, Ernest
Gellner, on the question of nationalism in the last book he wrote
before his death where he looked at choices that people make as
groups about who they belong to and who they do not belong to
and he takes as an example something which is often considered
self-evident in Member States of the European Union, that people
want to live with people like them. He said that, in anthropology,
we have many examples to show that is not true. People choose
a group of people and decide to change even their language overnight
to use a different language for various purposes and they choose
to live or to have among them many people who are very different.
This then brings us back to the question of demos. What is a demos?
What are the choices which we make? Is there self-evidence of
some kind of sense of European identity which is seen extremely
differently in different Member States fundamental to the construction
of a form of a democracy? It seems to me that we have to be quite
careful about transposing 19th century views on state building—and
I would refer to the work of Charles Tilley here—to the
21st century development of supranational governance.
148. I am not clear that you have actually answered
my question as to whether you think we need a demos to have a
democracy.
(Professor Guild) I am questioning what we mean by
demos. What is a demos? Are we inserting into that idea some kind
of creation of a national group or the equivalence of a national
group or are we saying that demos is whatever the group of people
are who form the political legitimacy within a system of governance.
149. You mentioned the question of language
which is obviously fundamental if people are to participate, to
read debates, to read court judgments and understand what is being
done in their name. Are you seriously suggesting that, because
anthropologists have shown that sometimes people choose to switch
their language—I was in Luxembourg the other day where children
grow up with French and German as both mother tongues as well
as Letzebourgisch—that major countries could somehow switch
their language? Is that a serious point?
(Professor Guild) In answer to you—and I do
not wish to underestimate the importance of the question—if
one looks at the discussion in the United States at the moment
about whether it is an English or Spanish speaking country and
if there is a transformation taking place, we see exactly those
arguments and the tensions around those arguments in perhaps one
of the most powerful countries in the world at the moment that
is having a lot of discussion about what language is the language
of the state and what are the mechanisms of transformation of
language.
Miss McIntosh
150. Professor, in your submission, you advocate
dilution of Article 9 and yet Article 9 itself is actually a compromise
reached by all those on the Working Group and clarifies the text
such that the court would have no jurisdiction on police action
and actually relating to the maintenance of law and order which
is covered by actual law. Have you actually made an assessment
of what the full ramifications would be of deletion of Article
9 and have there, to your knowledge, been any rulings so far involving
persons held in detention?
(Ms Alegre) The reason why we felt that Article 9
ought to be removed was firstly because we were of the view that
the issue on national police operations would not generally be
within the remit of the ECJ in any event, so, if you like, it
is stating the obvious on that point, and that we were concerned
that the added phrase "the exercise of the responsibilities
incumbent upon Member States with regard to the maintenance of
law and order and the safeguarding of internal security, where
such action is a matter of national law" could be used to
extend the exception to issues surrounding procedural safeguards,
which would mean that any developments on that front and on the
rights of the defendant could possibly be removed from the jurisdiction
of the ECJ which would in effect render them meaningless and unenforceable.
So, we were concerned as to how the exception might spread and
how the issues around policing were not really needed here. To
my knowledge, there have been no ECJ cases involving people in
custody.
(Professor Guild) I cannot think of any.
151. But you do state that many Member States
have already accepted the jurisdiction of the European Court of
Justice to make preliminary rulings on that . . .
(Ms Alegre) Quite but, as yet, there are no minimum
standards, so there are no enforceable rights as such that people
would be using. There have been double-jeopardy cases but there
are not yet any rules that would engage the ECJ on this point.
152. Are you happy that criminal law is going
to be brought within the remit of the European Court of Justice?
(Ms Alegre) Yes.
153. I must say that I am very unhappy with
that. I am not a practising advocate now, but I think there will
be enormous difficulties in its application in this country and
other Member States. I see no merit in extending the treaties
to criminal law.
(Ms Alegre) I think that in practice it will be very
limited as to what will actually go to the ECJ. It will be in
relation to European Union laws relating to rights of defendants
more or less and I do not really see a difficulty with that being
an enforceable right.
154. But rights such as the right to a fair
trial or the right, for example, where it has, until recently,
been the case that whereas in Scotland there is a duty to bring
someone to trial within 110 days, that is not a duty in English
law. In practice, it is now happening. Is it that type of right
because I would say that there is no place for that in what is
largely an economic treaty and I have great difficulty in seeing—and
I say that as a pro-European—what the added value is of
extending the treaties to criminal law.
(Ms Alegre) I think that when you get into issues
of cross-border crime and issues of extradition and things like
the European arrest warrant, if you are going to look at the way
in which the European arrest warrant works and how extradition
works and build on mutual recognition, you do need a degree of
mutual trust and cases such as the Ramda decision have shown that
mutual trust is not necessarily built solely on the fact that
all Member States are signatories to the ECHR. If minimum standards
are established on the European Union level, they will effectively
just be a piece of paper which will do nothing to assist mutual
trust between countries unless they are enforceable. So, if there
is a standard which is a concrete standard that can be agreed
between Member States and which can be enforced, I think that
will go a long way to protecting defendants' rights and also facilitating
extradition and mutual assistance between Member States.
155. Are you arguing the case for a poor Brit
who might be arrested and detained in Greece rather than a poor
Greek who might be arrested and detained in Britain?
(Ms Alegre) It goes both ways.
Mr Hendrick
156. Linked with that, could you perhaps tell
me what your objections are to basically national law still being
the main legislation at force and why we cannot just have the
ECHR to be available if national law is not seen to be fair and
just. Why do we need to be involving any Court of Justice in this?
I know we talk about mutual trust and that, but surely mutual
trust would accept that national parliaments are capable of taking
care of these things themselves.
(Ms Alegre) I do not think there is any question of
it overtaking national law, it is really a question of setting
minimum standards and those standards are often not going to actually
involve a change of national law. I do not think there is any
suggestion of bringing in new European procedures. As to why the
ECHR is not enough, I think that if you have a situation where
you can ask for a preliminary ruling to the ECJ, then you are
in a better position for the courts to know that they are fulfilling
their duties under the ECHR to protect somebody's right prior
to extradition and certainly the British courts seem to find that
the simple fact of a country being subject to the ECHR and the
fact that following appeal through the national courts in that
country a person will be able to go to the European Court of Human
Rights is not sufficient, necessarily, for the UK as a guarantee
of that person's rights before they are extradited. That seems
to be the way that British courts in any event are viewing it.
I do not know about other national courts.
(Professor Guild) JUSTICE was certainly not in favour
of the European arrest warrant and made a number of submissions
at various levels about the shortcomings and weaknesses. The choice
of the Member States in the Council to go down the route of criminal
law is the choice which then brings us to the position where we
say, "If you are going to have the law in the institution
at the European level, then you also need the controls through
the Court of Justice or through a mechanism for controlling what
the State does and disputes between individuals. If you are going
to move one area, for instance the law, with institution to the
European level, then the remedies also need to follow." Therefore,
the choice is one which really we have had our doubts about but
which has been made at the European level.
157. Would you be in favour of the European
Union signing up to the ECHR as well?
(Professor Guild) This has been the position of JUSTICE
for many years, since before the Amsterdam Treaty, where we considered
it central and crucial that there be an alignment between the
two main institutions in the European Union through the judicial
control with the Court of Justice and the Court of Human Rights.
Mr Connarty
158. I would like to raise a supplementary point
to Mr Hendrick's point. According to your submission, you would
see the European Court of Justice as having jurisdiction to take
over police procedures. Do you anticipate, for example That the
case recently where a gentleman whose identity had been stolen
by an American fraudster and was locked up for about three weeks
and who said that no one came to interview him for more than a
fortnight to establish his identify, if there were a common standard
across Europe, police procedure in such a case would not be allowed,
We could therefore not have someone languishing in jail in Spain
for two weeks without going through a standard procedure to establish
his identity, or just to turn up with an American warrant to hold
him? Do you see those standards preventing such a case if they
were common across Europe? Is that basically what you are arguing?
(Professor Guild) I think that certainly preventing
that kind of thing happening is the objective which we all have.
The objective is to raise standards to ensure that someone does
not languish in jail for weeks on end because of an event like
that. The question then is, how can we best get to the point where
that kind of inadequate standard of police procedure is eradicated
in the European Union? This is our concern and we are very keen
on any and all measures which seem to head in that direction which
are likely to bring us that kind of result where there will be
proper control, where perhaps a clarification at one level will
place sufficient pressure at the national level to ensure that
standards are raised.
159. Moving on to a topic which is close to
my interest, the establishment of a European Public Prosecutor's
Office. I note in paragraph 8 of your submission a very strong
demolition of the case of the establishment of such an office.
It is worth placing on record that this Committee has been continually
and consistently opposed to the proposal to create such an office
and we see Article 20 as the most extreme example of a draft article
going well beyond the recommendations of the Working Group. It
keeps appearing despite the fact that people keep trying to stop
it. I wonder if, in giving your view as to why you oppose the
establishment, you could explain what you then go on to say in
paragraph 9 which is, I think, equally frightening and probably
tempting to European Convention Members of a particular political
persuasion because you go on to say, ". . . it would need
to be accompanied by the establishment of a European Court of
Criminal Justice . . ." Are you not just tempting fate there
in fact by saying, "You should not have it but, if you have,
you should back up with a whole apparatus to support it"?
(Professor Guild) I think this goes back to our position
that if you are going to move one level of the administration
of criminal justice to the supranational level, then you have
to move the other levels as well. If you are going to have this
kind of prosecutor at the European level, then the prosecutor
needs to be subject to the control of a traditional mechanism
at the same level. So, while we are not in favour of this move
to the public prosecutor, if you, the Member States, decide that
this is what we want as Europe, we are of the view that we will
have to have the guarantees and controls of supranational judicial
control as well.
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