Examination of Witnesses (Questions 20-39)
JOAN RYAN
MP, MR CHRISTOPHE
PRINCE AND
MR KEVAN
NORRIS
18 OCTOBER 2006
Q20 Angus Robertson: Because?
Mr Prince: I cannot recall the
exact position that was taken by them. I know they agreed with
the final position that was taken.
Joan Ryan: I did check because
I was aware that I was speaking on behalf of the UK, so I did
know that everybody was happy with that position, but perhaps
we can look at whether there was anything of greater detail said.
Chairman: It is a position of great sensitivity
obviously since there is a separate legal system in Scotland which
everybody is very aware of. Mr Gove, you have a question.
Q21 Michael Gove: Minister,
you have quite rightly explained that because the Council meeting
was informal you cannot say too about the position of other governments
but other governments can speak for themselves, and the Irish
Justice Minister, Michael McDowell, has in giving evidence to
the Lords EU Committee outlined some of his concerns. One particular
area relates of course to extradition. As you are aware, if the
EU acquires competence over something internally then the EU becomes
the single, unified body which deals with all the external negotiations
relating to that matter. We have already seen that happen of course
with trade, and it is central to how the EU operates. Given that
we have harmonised internal procedures over extradition with the
European arrest warrant, can you tell us whether the consequences
of what we are considering would mean that we would have unified
EU negotiations over extradition and, if so, what effect would
that have on the capacity of the Government to negotiate unilateral
extradition arrangements such as those we have negotiated with
certain Middle Eastern countries in order to ensure that we can
extradite terrorist suspects? Is there not a risk that if the
EU exerts externally the competence that is required internally
we will no longer be able to do that and that will be a direct
blow to our capacity to extradite people who are a risk to our
citizens?
Joan Ryan: Indeed and I have spoken
with the very same Minister who I think is Deputy Taoiseach but
it is now a different word than Taoiseach.
Q22 Michael Gove: Tánaiste.
Joan Ryan: I have indeed spoken
with him myself on these issues and, yes, you are right, that
is a concern that he has and it would be one of our concerns also
and it would be a concern that it is possible that if the EU had
this competency it would negotiate extradition treaties that we
are currently negotiating bilaterally or multilaterally outside
of the European arrest warrant arrangements beyond the EU borders,
so for instance with Middle Eastern countries or with the United
States or with anybody else and, yes, we would have concerns about
that. At the moment it is considered that would be possible. As
to whether we have had enough discussion or detail around that,
I think we have not. I think it is a risk and I think it is something
that would cause us concern, pretty much along the lines that
the Irish Government is concerned as well. So you are right, it
is a concern; you are right that we are concerned it is possible;
and it is one of our concerns that are on the table to be addressed.
I do not know, if with your permission, Mr Norris—
Q23 Chairman: Mr Norris,
you wanted to add something?
Joan Ryan: It is his area of expertise;
you might find his contribution helpful.
Mr Norris: I agree with what the
Minister has said that if these matters were moved over to the
Community Pillar then the normal rules on external competence
would apply. That could restrict the external competence of the
UK in these areas of police and judicial co-operation, as the
Minister said.
Q24 Michael Gove: In the
interests of maintaining the capacity of the Government and the
Home Secretary to take the appropriate decisions in the interests
of the security of our citizens, he could not allow this to happen
because he would lose powers which currently he is exercising
in all our interests.
Joan Ryan: That comes back to
my original position that we have serious concerns. I understand
that it is possible that some things might be moved from the third
to first pillar and other things might not be moved, but that
is not a debate that has occurred. I do not think we can go down
that road unless the serious concerns raised by ourselves and
others were addressed. I can only confirm that the concern that
you have raised is indeed one of our concerns.
Q25 Chairman: Minister,
before we move on to the next section I am very conscious of the
fact that when we read this text and review it, the generic term
"serious concerns" will come up upon dozens if not more
times. The question by Mr Gove has elicited a specific serious
concern and how that concern is viewed by the Government. I will
give you one last chance to try to explain to us, if you can,
and, if not, you may give us a date or time or occasion on which
you may in fact illustrate what those serious concerns are. You
named some areas. What are the Government's concerns in those
areas? We all know the topics that may be moved into Pillar 1
but what are the Government's concerns about moving any specific
item into Pillar 1? If you can give us some more information at
this time it will help us when we review this evidence. If not,
then it will be very useful to know when the Government will start
to tell the Parliament and through the Parliament the people of
the United Kingdom what their positions are and what their serious
concerns are on what specific issues. If not, then I think our
evidence will be missing an item on which to evaluate what you
have said to us.
Joan Ryan: I accept what you have
said there, Chairman. The other concern that I could add to those
that we have just been discussing are concerns that featured prominently
in the negotiations on the justice and home affairs aspects of
the Draft Constitutional Treaty, where the UK identified a number
of substantive concerns, including the potential impact on national
security, the extension of external competencies and the need
for safeguards such as the emergency brake, and they are essentially
the concerns that we are referring to and our view is that they
remain as valid now as they were then.
Q26 Chairman: Thank you
very much. We will move on at that point and I am sure people
will look at the evidence when it is printed. If we move on to
the question of the European evidence warrant and the draft decision
on police co-operation at internal borders, what is normally referred
to as surveillance and "hot pursuit"; can you explain
why is it so important to maintain dual criminality for the proposal
of the Council decision on improving police co-operation but not
for the European evidence warrant, when both instruments involve
the exercise of police powers in this country, in the UK?
Joan Ryan: On the European evidence
warrant, we are already dealing with a crime that has happened,
so, for instance, both the European evidence warrant and the European
arrest warrant relate to a crime that has already occurred. It
is about how we get evidence, investigate it, find out who did
it, so to speak, and bring them to justice. And also on the European
evidence warrant in terms of dual criminality we operate on the
basis of a list where we have agreed mutual recognition. However,
if the crime has happened on UK soil (a crime according to another
Member State) but it is not an illegal act in the UK then we can
opt out on that basis and refuse that arrest warrant. That is
my understanding.
Q27 Chairman: That is
my understanding.
Joan Ryan: I am going slowly just
to make sure that I get this right. When we come to an issue such
as surveillance, and the same applies to hot pursuit although
we are not participating in Article 41 so we are talking about
Article 40 which is surveillance, that is a matter of gathering
surveillance to see if a crime has been committed. It is an investigation
at an earlier stage than the evidence warrant is applying to,
so you could end up with a situation where police officers from
another Member State come to this country to use powers that UK
police do not actually have, to investigate something that at
the end of the day might not even be an offence in the UK. So
that is the difference; we are talking about an act that has already
happened as opposed to an act that has not happened, and our concern
is that the provision should effectively be the equivalent to
dual criminality in the respect of urgent surveillance or normal
surveillance because of the difference in powers that police from
another state could be exercising in our own country.
Q28 Chairman: A small
supplementary, Minister. As a Minister and as a Government, are
you not concerned that in both of these cases that the allegation
is that a crime may have occurred, in the sense that unlike the
European arrest warrant it is all about evidence and that someone
may be a party to a criminal act. In surveillance it is also the
same, that it is seeking to find out if someone has committed
a crime, whereas in the arrest warrant case it is someone who
has been deemed by a court or a police authority to be charged
with a crime. Is it not a concern of the Government that if these
powers are used in a case where there is only an allegation there
will be great infringements of human rights by not insisting on
dual criminality?
Joan Ryan: In terms of the European
evidence warrant?
Q29 Chairman: The European
evidence warrant. It seems the evidence warrant and surveillance
are both the same, they are both alleged crimes but not crimes.
Joan Ryan: The European evidence
warrant is investigating matters in relation to a crime that has
been committed.
Q30 Chairman: It is seeking
evidence against someone who is not yet charged with a crime.
Joan Ryan: But we know an act
has occurred and it either falls into the list on which we have
agreed mutual recognition or we have the ability to opt out if
we do not think it is neither in the list and there is not dual
criminality.
Chairman: I do think you are missing
the point. Mr Heathcoat-Amory?
Q31 Mr Heathcoat-Amory: Just
following that up, I think, Minister, you are trying to make a
most extraordinary distinction here. You are saying that you are
willing to enforce the dual criminality requirement when it involves
police doing surveillance activities in advance of a possible
crime but you are willing to drop the dual criminality requirement
when they are gathering evidence for an event that may or may
not have happened. In other words, if there is an alleged offence
and still nobody has been charged but evidence must be gathered,
you are willing to override the dual criminality requirement but
you will enforce it if the police are carrying out some activities
slightly before that. This is sophistry, frankly. You are moving
away from a key safeguard that the alleged offence should be a
crime in both countries and I really do not understand your reasoning.
It seems to be based on sand.
Joan Ryan: Let me try and be clearer,
maybe I have confused the hon. gentleman. The European evidence
warrant prompts an investigation by UK police in the UK on behalf
of another Member State but it is an investigation by our police
here in the UK, whereas urgent or normal surveillance could involve
police from another Member State coming on to our soil. If we
did not have dual criminality, they could be coming to investigate
something and exercise surveillance for something that ultimately
would not prove to be an illegal offence in this country, and
therefore they could be exercising powers that UK police do not
have. That is the difference. So in the evidence warrant we have
the agreed list, we have outside of that list the ability to operate
on dual criminality, and it is an investigation undertaken by
UK police on UK soil. That evidence warrant has to be agreed in
our courts and has also to go through a process in our own courts.
So I think that is significantly different to the issue of police
co-operation in relation to surveillance, Article 40, and that
is why there is this differences. I think it might be the opposite
of what you thought I was saying. I am saying for surveillance
we must have the dual criminality issue because of the police
powers issue and the fact that it is a foreign police force potentially
coming on to our soil, whereas in the evidence warrant it is our
own police and our own courts in relation to that request from
another Member State.
Q32 Chairman: I have to
say, Minister, that is not my understanding nor is it the understanding
of the legal adviser to this Committee. I understand that it does
not have to be validated by a court in this country.
Joan Ryan: Pardon, I am sorry,
Chairman?
Q33 Chairman: I know,
I am always being advised by experts but I understand from advice
given to this Committee that it does not have to be validated
by a court in this country so you are not correct on that matter.
Joan Ryan: My understanding is
that we will implement it so that it does have to be validated
by our courts, but what we will not do is check behind that in
terms of what the Member State is saying.
Q34 Chairman: So you are
saying that you will instruct our courts to rubber-stamp them
without investigating their validity? You will not look behind
this. That seems to be what you are saying.
Joan Ryan: I am not saying that
we will rubber-stamp it.
Q35 Chairman: What does
it mean that you will not look behind it?
Joan Ryan: It is a bit like the
mutual recognition issue, is it not? If it is a crime in another
Member State and it is on the list, we do not look behind that,
we accept that.
Mr Heathcoat-Amory: That is outrageous.
Chairman: Can I turn to Nia Griffith.
Q36 Nia Griffith: Yes,
we are covering a lot of the same ground here. I think the real
question is this business about the "in part" and whether
the "major or essential" part is going to make a tremendous
amount of difference to this legislation. I think that is the
important bit; when we talk about the European arrest warrant
where a Member State may refuse to execute a warrant if it relates
to an offence committed "in whole or in part" in the
territory of the executing State where such conduct is not criminal.
Why was the corresponding reference in the evidence warrant changed
to a "major or essential part"? The "in part"
and the "major or essential" part seems to be quite
a difference. It seems to be quite a discrepancy?
Joan Ryan: I am sorry, Nia, I
am not sure I am getting the focus of the question. I am sure
it is my fault.
Q37 Nia Griffith: Perhaps
if we go back then to how exactly do you see territoriality working
and how do you see that exception actually working in terms of
the European evidence warrant? Perhaps if we look at that first
and then perhaps we can move on to this business of the changing
of the wording.
Joan Ryan: My understanding of
territoriality is that if the crime has been committed either
in whole or in major part in the state that is applying for the
arrest warrant, they have the territorial—and I am not quite
sure what the right term would be—but the territorial rights
over making an application to us for us to execute an arrest warrant
and extradite somebody to them. The territorial rights are about
where the crime is committed. However, I do not think that precludes
the situation where a crime is committed on UK soil but the impact
of that crime is in another country, and we were not going to
prosecute, and it is either on the mutual recognition list or
there is dual criminality because then we could execute a properly
applied for evidence warrant. In terms of our own courts, on the
issue of police co-operation as opposed to executing a European
arrest warrant or an evidence warrant, which clearly goes through
a legal process, in terms of the evidence warrant we would be
looking not to rubber stamp it, not to have a process that just
rubber-stamps it; it is about assessing fundamental rights, as
I understand it.
Q38 Chairman: Minister,
I may be of some help to you. I understand that this Committee
in a previous report suggested that an order should be validated
by a court and the Government responded to say it did not agree
with this. I will for the interests of the Members read out the
procedures and safeguards on recognition and execution in the
Working Party report from the Council of the European Union which
said that "the executing authority shall recognise a European
evidence warrant, transmitted in accordance with Article 7, without
any further formality being required," and it then goes on
to say "and shall forthwith take the necessary measures for
its execution," et cetera, et cetera. We did suggest in this
Committee that that was not an adequate safeguard and that there
should be a proper validation process and the Government rejected
it. Yet you said earlier in your evidence, which you can see when
it comes out, that in fact there would be a validating process
by our police and our courts. If that is the position of the Government
then I am sure this Committee will welcome it.
Joan Ryan: I will respond to that
but then perhaps I could ask Mr Prince or Mr Norris to add a word
in the interests of clarity. My understanding is that the courts
will have to issue a search authority and we will agree it but
we will check it against fundamental rights. That is my understanding.
Perhaps I could ask Mr Norris.
Q39 Chairman: Mr Norris,
if this is your area of expertise you might want to come to the
Minister's rescue.
Mr Norris: I can comment generally
on mutual recognition but not specifically on this instrument.
I think the essence of mutual recognition and as exemplified by
the European evidence warrant—
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