Examination of Witnesses (Questions 1-19)
PROFESSOR DR
ELSPETH GUILD,
MR FLORIAN
GEYER, MR
NEIL O'BRIEN
AND MR
PAUL STEPHENSON
21 NOVEMBER 2006
Q1 Chairman: Thank you very much for
joining us this morning. This is the first session of a short
inquiry that we are conducting which looks particularly at the
influence of European Union issues on the justice and home affairs
agenda. It is perhaps slightly unusual for this Committee as opposed
to other parliamentary committees to be looking at European matters,
but a great many things that we regard as falling within our domestic
agenda, crime, immigration, terrorism and so on, are now very
heavily influenced by what is happening at European Union level
and we want an overview of what is happening. You will be kicking
off the inquiry today. Perhaps each of you would introduce himself
and herself for the record, and then I shall say a word about
how we deal with this morning's session.
Mr Geyer: My name is Florian Geyer.
I am from CEPS. I work with Elspeth Guild. I previously worked
at the University of Trier and also for a lawyer for quite some
time. I came originally from Germany. I am very happy to be here
today, and thank you for the opportunity.
Professor Dr Guild: I am Professor
Elspeth Guild. I am senior policy fellow at the Centre for European
Policy Studies, a professor of law at the University at Nijmegen
and a partner of the London law firm of Kingsley Napley. I have
a specialism in judicial co-operation in criminal matters and
this year I published a book on judicial and constitutional challenges
to the European arrest warrant.
Mr O'Brien: I am Neil O'Brien,
director of the think tank Open Europe which has been going for
about a year. We do work on everything to do with reform of the
European Union, whether it is to do with economic policy, foreign
policy and defence, the environment, institutional reform or,
in this case, justice and home affairs. We publish work on some
of the issues that you are looking at, particularly the use of
the passerelle and the question of dual criminality and mutual
recognition. I emphasise that neither of us is a legal expert
or even a particular expert on justice and home affairs, but I
thank you very much for inviting us here today.
Mr Stephenson: I am Paul Stephenson,
head of research at Open Europe. I have been specialising in research
in the justice and home affairs field for our organisation.
Q2 Chairman: We have four witnesses
representing two organisations and we have about an hour and three-quarters.
To make a couple of housekeeping points, clearly we will not be
able to bring in all four of you on each question that arises.
Given the two organisations, Members will rely on you largely
to decide among yourselves which person in each organisation might
respond best to a particular question. It will not always be possible
to bring in the witnesses from the two organisations on the same
question. Some of the questions that we have prepared are directed
at one organisation or another simply because of the content of
the evidence submitted. I hope that at the end of the session
you will feel we have been able to cover all of your particular
angles of interest. Based on past experience, if we try to bring
in everybody on every question it becomes slightly undisciplined
and unfocused. Having said that, I start with a couple of fairly
general questions. Prof Guild, in terms of the work of your organisation,
what do you say are its main interests or concerns in the field
of justice and home affairs?
Professor Dr Guild: As to our
greatest concerns, we have done a substantial amount of work which
looks at how the transition from the pre-Amsterdam to post-Amsterdam
period has taken place in respect of moving the fields of immigration
and asylum into a framework of law created by the binding structures
of European Community law and the transformation of judicial and
police co-operation in criminal matters still under the third
pillar. In that changing constitutional framework of the European
Union we have paid a lot of attention to the example of Schengen.
What happens when you have an agreement between a small number
of states that become Europeanised or communitised into two different
pillars? What does this do to the coherence of the overall structure?
Q3 Chairman: We shall go into the
detail of this later but, to pursue it, when you look at what
has happened over that period of time is your approach to start
from the existing institutional arrangements in the European Union
for decision-making, or do you start from an assessment of the
major challenges that face European countries, like crime or terrorism,
and the effectiveness of the challenge to them? They are different
approaches.
Professor Dr Guild: We are very
interested in what actually happens. We are not expert at Member
State level on what different actors in different Member States
perceive to be or construct as the particular threats at any particular
moment. That is not what we do. For instance, we look at what
governments bring to the European table as their main concerns,
what happens to those concerns and how the policy options that
are adopted in particular at European level address or do not
address them or have adverse and unexpected consequences in respect
of the mischief which they seek to address. We do not look at
national level at what is going on and how different actors put
forward different types of threats as problems; we look at what
happens when we Europeanise these issues.
Q4 Chairman: Mr O'Brien, I invite
you to pursue a similar line of thought.
Mr O'Brien: The angle from which
we approach this is to look at whether or not the measures that
are being adopted at the moment at European level are proportionate
to the challenges that they seek to address and the likely political
consequences of doing these things. One of the reasons this is
a very timely inquiry is that this is a fast-moving, dynamic area.
All of these things are being done with relatively little public
understanding at the moment. This is a very good opportunity to
address the point. Perhaps one would characterise our position
on these issues in the following three ways: first, a belief that
the attempt to harmonise Member States' legal systems strikes
at the heart of democratic questions about control of the balance
between security and liberties, which are issues that we tend
to think of as being quite vital in terms of having national parliamentary
control and public accountability. Second, one of the other things
that we have talked about a bit in our evidence is the view that
in the European Union one thing tends to lead to another and there
is a lot of spill-over from one decision which often creates pressure
for harmonisation further down the road. The third matter in which
we have a fundamental interest is the whole question of majority
voting about which we are quite sceptical. Philosophically, we
believe in the European Union based on co-operation rather than
majority voting and if something is of general interest in most
Member States it will be agreed through consensus.
Q5 Chairman: In terms of the UK's
overall approach, is it fair to say that the British Government
over the years has been quite keen to participate in specific
measures like the European arrest warrant but unenthusiastic about
holding powers? It has not been wildly keen on passerelle and
bringing all of this stuff into European decision-making. We have
not joined Schengen. Perhaps I may ask each of you, not for a
detailed policy answer, but the approach that the UK Government
has taken. Is it your view that Britain's own security and anti-crime
measures are more effective because of its relatively unenthusiastic
approach or that it has weakened its ability to tackle problems
in this country and at European level by not being more fully
engaged in the European Union project, if you like?
Professor Dr Guild: It would be
incorrect to say that the UK Government has been unenthusiastic
about mutual recognition in the field of judicial co-operation
in criminal and police matters. It was the UK Government in Tampere
that very strongly pushed for this, and it has been very much
a UK project.
Q6 Chairman: As an alternative to
harmonisation?
Professor Dr Guild: Definitely
as an alternative to harmonisation and maintaining judicial co-operation
in criminal matters under the third pillar. But the UK did not
ask for an opt-out under the third pillar; it asked for an opt-out
under the first pillar in relation to immigration and asylum.
It has chosen to go into asylum and stay out of immigration, but
it never sought an opt-out on judicial co-operation on criminal
matters and policing. Mutual recognition would have been a good
basis and that would have been the moment to do it. The UK has
also reached agreement to opt into the whole of Schengen which
relates to judicial co-operation in criminal matters and policing.
It is excluded only from the immigration and asylum and border
control part of it. I think we can say that the UK has been quite
an enthusiastic consumer of judicial co-operation in criminal
matters via mutual recognition at the moment. Whether or not that
addresses particular security concerns in the UK is a political
and policing decision made at the highest level with full understanding,
but I am sure that you will be taking evidence from the Minister
on that matter.
Mr O'Brien: I would agree with
some of that. I do not believe that the UK has been totally unenthusiastic
about these issues. Broadly, it believes that a piecemeal approach
is right and it should opt into things in which it is interested
and avoid those things which it considers undesirable. Insofar
as the Government has been cautious, I believe that that approach
is right. In some ways I would have argued for greater caution
about some of these matters. As the European Scrutiny Committee
has argued, in particular giving up the principle of dual criminality
was done quickly and too lightly. While I believe that a piecemeal
approach is right, I think that in some ways the Government should
be more cautious about some of these matters.
Q7 Mr Benyon: I want to talk about
The Hague programme. I would be grateful if one member of each
organisation could respond in relation to how the third pillar
is working. In your view what are the major problems to be solved
in tackling crime at EU level? What approaches do you feel work
well and where are the obstacles in the way of effective action?
Mr Geyer: We are still in the
initial period of the whole measures becoming applicable in day-to-day
work. When we look at some of the measures on which we have data,
for example the European arrest warrant—how many have been
issued and the times required under the system for surrender of
suspects of one Member State to another—we can see that
there are positive outcomes which help to speed up procedures.
When we look at Eurojust we can see that they are taking a down-to-earth,
practical approach to helping judicial authorities in the Member
States to co-ordinate themselves. We mention in our evidence the
cases that have been referred to Eurojust. The annual report of
Eurojust explains very nicely different cases that have been dealt
with and from that we can see that it is an added value. For example,
in one case a search needed to be conducted in two Member States.
It was a Friday afternoon. The case was transferred to Eurojust
in order to organise an urgent search in another Member State
which effectively was done at midday on Saturday. Within 24 hours
Eurojust managed to organise a search in two different jurisdictions
on different sites with the help of the judicial authorities of
the Member States. That clearly points out that there is an added
value in European judicial and police co-operation. I do not deny
that there are some obstacles connected with the European arrest
warrant particularly in connection with Eurojust, but there are
also problems that derive from the decision-making process and
institutional questions. One of the main concerns is that as long
as measures are taken at the European level that are not implemented
on a national level the whole system is likely to go no further.
Q8 Chairman: Such as?
Mr Geyer: This was visible in
many decisions taken by the council. For example, there was seen
to be a need to strengthen Europol and there were protocols to
amend the convention that established Europol. Those date back
to 2000, 2002 and 2003. On many occasions Member State governments
agreed that they needed to speed it up and ratify those protocols
to strengthen Europol and make it more effective, but it has not
been done until now. As far as we can see, that will be possible
only in 2007. Clearly, it shows that Europe can make proposals
but it is the Member States that have to implement them. When
they are not willing to do so it is a major obstacle to proceeding
in this policy area.
Q9 Bob Russell: What was it that
Europol could not do that Interpol was doing?
Mr Geyer: In relation to our evidence
or the protocols?
Q10 Chairman: Interpol has existed
as a means of international police co-operation for some time.
Why has there been a concentration on developing Europol which
at best appears to be a subset of what Interpol already does?
Mr Geyer: Interpol and Europol
are quite different in the tasks they perform. Europol as now
constructed mainly processes and relays information between the
police authorities of different Member States. Europol analyses
and processes the information whereas Interpol, apart from the
fact that it has 186 contracting states and so is an international
organisation completely outside the European frame, has many more
operational duties concerning information processing and giving
information to police authorities in the Member States. As soon
as Europol was conceived there were already thoughts about developing
it further, as is being done by the protocols, to allow it not
only to process information but to send its officials to Member
States in joint investigative teams to help co-ordinate at Member
State level. That is one thing that Interpol is not allowed to
do.
Q11 Mr Benyon: Can you remember the
original question?
Mr O'Brien: In terms of increasing
the effectiveness of security across the European Union, the way
forward is really more about informal and formal police co-operation
than about further legislation. I am not convinced by the kind
of arguments that are made by Commissioner Frattini who has asked
rhetorically, "Are we going to wait for more bombs to go
off before we legislate?" I believe that that is very much
overdone. Most of the pending legislation is more about the side
of the equation to do with the rights of the individual than that
concerned with security and effectiveness. For example, pending
legislation on the admissibility of evidence is thought to be
more likely to move the balance between liberty and security towards
individual rights; that is, to make convictions probably more
difficult. There seems to be a consensus building up in this matter,
at least in the academic literature. Certainly, one argument often
made in Brussels is that we have legislated on the security side
and now we need to legislate far more on individual rights to
balance it, whereas my approach is that if we are initially cautious
about what we legislate for at European level in terms of enforcement
and we have, say, a more limited version of the European arrest
warrant, it is less necessary to legislate to try to harmonise
on the rights of the individual.
Q12 Mr Benyon: That leads me to my
next question to CEPS. We are having a debate in this country
on the balance between security and freedom. In relation to what
Mr O'Brien has just said, where does CEPS feel that debate is
moving in the European context? You have said that security cannot
be achieved without securing fundamental rights and guaranteeing
true judicial control and the rule of law. Do you believe that
action needs to be taken to support either side of that balancing
act?
Professor Dr Guild: We have done
a substantial amount of analysis of the question of balance as
between freedom and security. In a very large project called Challenge,
which we co-ordinate with 23 universities across the European
Union, we have come very much to support the position taken by
the former UN Commissioner for Human Rights, Mary Robinson, that
the principle we seek to defend is freedom and that security is
a tool within the rule of law to achieve freedom, including fundamental
rights. To look at it as a form of balancing, adding a bit of
salt here and some pepper there, is not helpful in terms of how
we conceptualise one of the fundamental principles of a liberal
democracy.
Q13 Mr Streeter: Moving on to practical
co-operation between Member States and some of the organisations
that have been set up to implement that co-operation—Eurojust,
Europol and presumably others—can you give me a sense of
the scale of these bodies? Are we talking about three men and
a dog or 400 people sitting behind expensive desks? Do you believe
that the legal basis for these organisations is currently sufficient?
Are these organisations working well in practice?
Mr Geyer: If I may deal with the
first part of the question and consider how these institutions
work, Europol has grown from quite a small number of officials
to around 540 to 550 people situated in The Hague. It is quite
big although in European terms maybe it is not the biggest. Eurojust
is a very small unit comprising just 25 members sent by Member
States: justices, magistrates or senior police officials. Eurojust
members are not allowed to have assistants. Some national members
of Eurojust have managed to have two or three assistants, but
there are just 25 in the core. It is supported by a little secretariat,
but its number is really reduced. Given the reduced number the
work done by Eurojust is quite considerable. There is also the
European Judicial Network situated within Eurojust which has only
a secretariat. It is a network of 253 contact points in the different
Member States, with one in Malta and 56 in Italy. This is co-ordinated
in Europe by only a small number and effectively it is manned
by national staff working in the European Judicial Network.
Q14 Mr Streeter: Are they working
well?
Mr Geyer: I think that more could
still be done. Eurojust itself says that it has the capability
and possibility to go further but it cannot work when no cases
are referred to it. This is another matter that I want to highlight.
It is similar to the approach that we cannot agree at European
level to implement legislation to provide security if Member States
do not want to transpose it into national law. There is a similar
question in relation to Eurojust which exists because of cases
that are referred to it. When cases are not referred Eurojust
cannot work. Apart from the 500 additional cases arising in 2005,
it says that it has the capability and capacity to deal with more
but it is not able on its own to instigate this work.
Mr O'Brien: My answer will be
short because I have not published any work on this yet. Broadly
speaking, I support the Government's caution in this area for
a variety of reasons, in part because of the rapid expansion of
these institutions, in part because of the continuing pressure
for them to be able to take part in national police investigations
and in part because of bodies like Europol being itself raided
in an anti-corruption investigation a couple of years ago. If
you have those kinds of problems caution is definitely the order
of the day.
Q15 Mr Streeter: How far do you think
the European Union's JHA programme can be achieved through practical
co-operation alone, or do we need to develop common legislative
solutions?
Mr O'Brien: I do not believe that
we need to go much further down the road to try to legislate for
these things. If anything, what we need is a rebalancing. De
facto, during the implementation of measures like the European
arrest warrant we have already seen that when Member States have
legislated in haste they have subsequently, in implementing these
matters at national level, repented at leisure and made various
carve-outs. In some ways I think that we should try to go further
in the direction of re-establishing the principle of dual criminality.
We are concerned that if the law is not changed at some stage
someone will be extradited for something that is not a crime in
this country. There will then be a real problem and pressure for
further harmonisation, and both of those would be bad.
Mr Geyer: I think it depends on
how far we want to go and what we regard as our goals. If we think
that there is added value in practical policing but also judicial
co-operation and that crime, terrorism and all the other matters
do not stop at the border, and if we want to try to find better
and faster solutions to crime prevention and prosecution, from
that starting point we ask the question: what are the tools that
we want to use?
Q16 Mr Streeter: Presumably, your
organisation would like the full-blown EU integration approach?
Professor Dr Guild: We certainly
would not go that far. We are very sensitive to the historical
and cultural differences in criminal law in particular as expressed
within Member States. We very much support the principle contained
in Article 151 of the EC treaty that cultural diversity is one
of the great strengths of the European Union. We do not see it
as necessary to go down the route of harmonisation of either substantive
criminal law or procedural law. However, we see that mutual recognition
as a principle results in very serious questions being asked about
the treatment of the defendant. As a citizen the defendant is
entitled to a proper defence. That leads us towards the question
of approximation and in which fields one must then discuss approximation
if the use of mutual recognition privileges prosecution and provides
nothing in respect of the rights of the defence.
Q17 Mr Streeter: You have mentioned
in passing the reluctance of Member States to implement agreed
legislation. Do you have any bright ideas as to what can be done
about that? How can we overcome the reluctance to implement agreed
measures?
Mr O'Brien: I am not convinced
that it is necessarily a good thing for us always to be trying
to force people to implement measures in a standardised way. That
comes about partly because we try to implement legislation in
a very centralised way. The European response is a classic example
of this. If one allows greater flexibility in the legislation
one has a lesser problem with Member States trying informally
not to implement these matters.
Professor Dr Guild: If it is said
that what a Member State signs must be implemented and that it
will be automatically and directly effective as EU law is under
the first pillar that Member State will be a little more careful
about what it signs up to because it will have to implement it.
What we have seen in Schengen and all the intergovernmental venues
is Member States agreeing to sign up to things that they do not
really like because they do not want to insult the French or Germans
and then they do not get serious about it. If one wants to be
serious about one's legislation it must be given binding effect.
Q18 Ms Buck: Mr O'Brien, do you see
any practical advantages in mutual recognition, or are you absolutely
on the other side of the fence?
Mr O'Brien: I believe that if
we can very tightly constrain the scope of it there are some advantages.
I would describe myself as being cautious rather than completely
against it.
Q19 Ms Buck: What would the advantages
be?
Mr O'Brien: The matter that is
always adduced is greater speed in the process, the classic case
being that of Hussain Osman, but people often make the case for
giving up dual criminality in terms of the pace of these things.
I believe that that is misconceived, because if you have the right
kinds of forms and procedures in place and it is done as a judicial
decision, as we do under the European arrest warrant, rather than
a political decision, there is no reason why questions of dual
criminality cannot be factored into the legal decision made by
a judge and for the process to be just as quick as it otherwise
would be but with greater safeguards, for example that a person
does not end up being extradited for something that is not a crime
in his own country. That argument is often over-egged.
Mr Stephenson: Mutual recognition
is very beneficial only in terms of speeding up the process if
we are talking about ideas on which everyone can agree. For example,
it may be that all Member States can agree on what constitutes
the offence of armed robbery. When one gets into areas such as
murder where there is no agreed definition—for example,
in some Member States euthanasia and abortion would be considered
murder—to force mutual recognition on Member States is not
necessarily helpful or beneficial.
Mr O'Brien: As a result of the
example referred to by Mr Stephenson, Estonia, Greece, France
and Slovenia have given up trying to reach a common view on swindling,
racketeering and extortion. Belgium has effectively tried to opt
out of the part of it to do with murder, and the whole question
of attempts at crimes and participation in them have been opted
out of by Ireland and Estonia.
| 
