Examination of Witnesses (Questions 64-79)
MR JONATHAN
FAULL AND
MR LUIGI
SORECA
28 NOVEMBER 2006
Q64 Chairman: Good afternoon, gentlemen.
Thank you very much indeed for coming. It is something of a record,
I suspect, to give evidence to two parliamentary select committees
in the same day, Mr Faull, but thank you very much indeed for
coming. This is, as you know, a formal evidence session though
we have had an extremely good two days in Brussels meeting colleagues
of yours and Members of the European Parliament and some of the
NGOs. You probably know that this is the first time the Home Affairs
Select Committee rather than one of the European scrutiny committees
has looked at the influence of the EU on home affairs policy,
and indeed everyone is saying to us that this is a good time to
do so and it certainly strikes us that European Union influence
is growing considerably, whatever the decision-making procedures,
so hopefully our final report will be of use to the Parliament
in the UK. I wonder if I could ask each of you to introduce yourselves
for the record and then I will open up the questioning.
Mr Faull: Thank
you. Good afternoon. Jonathan Faull, Director-General of Justice,
Freedom and Security at the European Commission.
Mr Soreca: Good afternoon. I am
Luigi Soreca, Head of the Unit in the same Directorate-General.
Q65 Chairman: Thank you very much
indeed. What we would like to start by doing is exploring some
of the background to the proposals that the Commission has made
in changing decision-making structures on justice and home affairs,
particularly criminal justice issues. Is there a case for saying
that there is undue emphasis placed at the moment by the Commission
on the adoption of legislation rather than the development of
practical co-operation in policing and judicial co-operation?
Can you highlight areas where in your view we simply cannot move
forward effectively just by practical co-operation and must have
legislation?
Mr Faull: There is certainly a
considerable place for practical co-operation and a lot of that
goes on. Where we do believe that legislation is necessary is
where across 25 (very soon 27) countries there needs to be a common
set of rules so that people know precisely what they have to do
so that citizens know what the law is. We do not have a vast body
of legislation, for two reasons, first because this is still a
relatively new area of the Union's activity, and, secondly, because
it is not an area where legislation is the only answer. We do
not legislate for the sake of legislating. We propose legislation,
or Member States indeed in this area may also propose legislation,
where it seems to be the best response.
Q66 Chairman: Could you be a bit
more specific about the areas where you think that is most pressing?
Mr Faull: To give an example of
what has been done, the European Arrest Warrant was considered
to be something necessary. It could really only be done properly
by legislation. It is not something that can be done by informal
co-operation, obviously, between police forces across Europe.
It is also necessary to bear in mind the need for the balance
which has to be struck at all times between law enforcement measures
and the necessary protection of the rights of the individuals
concerned, and that sometimes has to be done by legislation as
well. Another example from a more recent period is data retention
for telecommunications and computer information. If we want our
police forces across Europe to have access to or at least to know
that there is available information to which they may need access
in carrying out their investigations into terrorism or other forms
of serious crime, that cannot be done by informal operational
co-operation. It requires some rules and we have the mechanisms
in the European Community in that case to lay down those rules
for all the Member States.
Q67 Chairman: Whenever we have asked
the same question about legislation, everyone at least starts
by talking about the European Arrest Warrant. The European Arrest
Warrant is there, it is in place, it is working and it was done
in the existing system of legislation within the European Union.
I think the Commission was very positive about the Finnish Presidency
proposing the use of the passerelle to bring some of these
matters into the First Pillar. Why, given that something as big
and as important as the European Arrest Warrant is in place and
through our existing procedures, has the Commission wanted to
push towards this more streamlined system of decision-making?
Mr Faull: Frankly, without drawing
simplistic inferences from timing, it is no coincidence that the
European Arrest Warrant was adopted very shortly after the terrorist
attacks in Washington and New York on September 11 2001. It is
the only example, frankly, of legislation of that importance which
was enacted relatively quickly and a lot of people believed that
without 9/11 it would not have been adopted that quickly. Some
cynics have gone so far as to say that we might still be talking
about it today. One important contrast, to illustrate my point,
is that with a similar piece of legislation concerning something
called the European Evidence Warrant, which provides for the transmission
of evidence from one jurisdiction to another in cases of investigation
of terrorism or other serious cross-border crimes from one Member
State to another in the European Union. We had always considered
that to be the inseparable accompaniment to the European Arrest
Warrant. You surrender people from one place to another. You should
also, without much more difficulty, put in place, we thought,
a system for the surrender of evidence, the transmission of evidence
from one place to another so that the law enforcement and judicial
mechanisms that we all have can work properly. I have to say that
the European Evidence Warrant took years to enact and when it
was finally enacted earlier this year it was legislation with
many extremely welcome principles but accompanied by many exceptions,
exemptions and derogations for Member States to keep their own
particular procedures in place at the same time. It is therefore
legislation of less good quality, it is more difficult to apply
for judges, for practitioners, and we think it is less effective
than it could be and that it should be. Those examples I think
show that without the pressure of external events which concentrate
minds, including the minds of the legislators, but with the rather
cumbersome system of law-making that we have at the moment for
Third Pillar issues, we end up with legislation which is slow
to enact, laborious and sometimes of less good quality than it
should be.
Q68 Chairman: I will come to the
issue of effectiveness in a moment, if I may, but the implication
of what you say is that if the decisions were taken in the First
Pillar you would get better quality legislation but possibly a
considerable number of countries would have to go without the
various qualifications and reservations that they have got into
the European Evidence Warrant at the moment. Could you explain,
because I am still a bit of a beginner in this, first, why you
believe that changing the decision-making procedure to QMV would
produce better quality legislation, and, secondly, what are the
sorts of things that national parliaments and national governments
would have to give up and why you feel that the Member States
would feel happier with the outcome? The implication is that at
the moment everyone has got the bit that they wanted to protect,
in the future they will not have the bit that they want to protect
but everybody should be happier about it. It is not obvious why
that should be the outcome.
Mr Faull: No, people would not
necessarily have to give up things they hold dear. They would
have to make perhaps a greater effort to persuade the others why
it is necessary to do so, but one should not necessarily be defensive
about these things. If there are good reasons why something which
has worked well at national level should be preserved, or indeed
even extended to the others, I think a self-confident negotiator
should be able to bring that about. Even with the unanimity system
we have at the moment it is rare, very rare in fact, for one Member
State alone to be isolated on a particular issue. Among 27 countries
we have a very wide variety of views, but the move from the Third
Pillar to the First Pillar would not entail only getting rid of
unanimity, getting rid of the veto. It would also bring the European
Parliament more into the picture, which would not necessarily,
by the way, speed things up because I am not saying that the First
Pillar process is necessarily terribly quick. Complex legislation
involving 27 countries and several European institutions is bound
to take time, but the scrutiny that the European Parliament brings
to bear on the issues before it, the debates between Member States
in the Council, the accountability that ministers representing
their states in the Council have to you in national parliaments,
all of that should produce, it seems to us, a better mix of effectiveness
and accountability than the one we have now.
Q69 Chairman: It might be invidious
to ask you to name countries in your position, but you must have
had in mind that certain countries have put certain reservations
into the European Evidence Warrant which complicate the system
and make it more difficult to operate. Can you at least give examples
to us, so that we understand the process, of the sorts of reservations
that countries have got into the final version of the European
Evidence Warrant that really you think in operational and legal
terms we would be better to have done without?
Mr Faull: One of the big issues
in this area of policy generally is the question of dual criminality:
should a particular offence be characterised as a crime in both
countries for something to happen between them, for the person
to be surrendered under the arrest warrant or the evidence under
the evidence warrant? The way we have tackled it, and it is very
difficult because we do not want to set about harmonising criminal
law, I do not think you would want us to do that and, whatever
people believe, we do not want to do that because we would be
doing it for centuries and failing no doubt, is that we take each
national criminal law system as it is but we have to face the
problem that people define even crimes with similar names and
similar characteristics differently. Murder in one place is not
exactly the same as murder in another, so what do you do? What
we have done is draw up a catalogue of certain agreed very serious
crimes, and Member States agree that for those crimes, whatever
the differences between their national legal systems, they will
surrender people under the arrest warrant. When it came to the
evidence warrant we had enormous difficulty with one Member State,
a rather large Member State, and I am not going to name names
exactly, which wanted to retain a certain element of dual criminality
by saying, "I will not surrender evidence regarding an alleged
crime to another Member State unless the facts give rise to a
crime in my legal system as well", and we had to give way
and compromise in order to get that Member State to agree, when
everybody else had agreed at the end of the day to the evidence
warrant, for the thing to go forward. Another issue which is terribly
important and raises an issue at the heart of the whole European
endeavour in this field is where there is a certain lack of trust
between Member States which causes one or more of them to insist
on a final fundamental rights-based check on what is asked of
it by another Member State so that, instead of an automatic surrender
of evidence to another Member State, the country asked to provide
the evidence would look at the facts of the case and carry out
a human rights check essentially. We have a case of that too written
into the legislation for one country only.
Q70 Chairman: Can I move on to the
question of effectiveness? The extent to which the type of example
that you have given is a practical problem is surely only where,
as a result, crimes go uninvestigated and unpunished and criminals
go free. It is not clear, reading the Commission's evaluation
of the Hague Programme documents generally that the Commission
is able to evaluate what is actually happening on the ground in
terms of our overall effectiveness in bringing criminals to justice
as opposed to evaluating how well this or that piece of legislation
has been transposed into national law. Do you think that when
the Commission is looking at policy in this area it has a sufficient
grip on the real world problems that lie behind the whole debate
or is there a danger that it takes too formal and legalistic approach
in trying to have common approaches across the Union?
Mr Faull: We are conscious of
that perception and perhaps of that danger and we do everything
we can to make sure that we have as many facts and as much analysis
as we can available to us before embarking upon the road to legislation.
We do not propose legislation unless and until we have carried
out a full impact assessment. That impact assessment requires
detailed contact with the Member States, with practitioners, with
all sorts of organisations active in whatever the field may be
and it is not until we have persuaded ourselves and others within
the Commission system that this is the path we need to follow
that we propose legislation. Is it always absolutely perfect?
There are different views on that. All I can say is that, knowing
the complexity of the area across 25 (soon 27) countries, we make
every possible effort to do that. The next stage, of course, is
making sure that what we have put in place once the Council has
enacted legislation is being implemented effectively on the ground,
and that is why we attach considerable importance to evaluation.
We do not have in the Third Pillar field the normal enforcement
tools at our disposal of infringement proceedings, let alone the
best possible enforcement tool of creating rules which individuals
then go out and have enforced themselves in the courts, but we
are very attached to evaluation of what we have done to see whether
it has worked, whether it was cast in the right way, whether it
needs to be changed in any way, and you will have seen in our
papers that we are setting up a rather comprehensive evaluation
system on all that we have done so far in the Third Pillar to
check that it is working properly.
Q71 Chairman: On the European Arrest
Warrant, it has been put to us by several people that possibly
no country has exactly put the European Arrest Warrant into national
legislation in the way that was implied by the directive. However,
it is easier to find out, as far as I can see, the Commission's
view on whether countries have put it into international law correctly
or whether they have had unwelcome reservations and exclusions
and so on than whether there is a major problem of significant
numbers of people avoiding extradition because of the different
quirks of national legislation. In the evaluation you are going
to do are you going to give us more of that latter type of hard
number counting information as opposed to legal analysis?
Mr Faull: Absolutely as much as
we can but we are at the mercy of the Member States who have to
give us this information. I say "have to". There is
no legal obligation to do so. We depend on their goodwill, and
indeed the legal professions insofar as they can, in letting us
know precisely what is happening on the ground. We want to know
that and whatever we can find out we will divulge more generally.
It is very much in our interests to do so. Whoever said that it
has not been implemented properly anywhere sounds a little harsh.
Q72 Chairman: Or "absolutely
fully", I think it was.
Mr Faull: Okay, "absolutely
fully". Perhaps "absolutely fully" is a hard test
to meet, but we already know of some very significant cases in
which it has worked and it has been used and it has brought extradition
times, to use the old—
Q73 Chairman: If I can just interrupt,
that is my point in a sense. It appears to be working even though
a purist might say, "It has not been implemented in the most
efficient manner because there are countries that have got different
exclusions and will not allow their citizens to be extradited
for this or that purpose". It does not look in practice as
though those anomalies create a major problem for the European
Union's aim of freedom, security and justice.
Mr Faull: We know what has happened.
We do not necessarily know, and this sounds a bit Rumsfeldian,
what has not happened. We do not know what we do not know, and
these are early days. It is quite true that in many countries
the previous constitutional bar on extraditing one's own nationals
was a very serious problem, and we have seen litigation and we
are now seeing constitutional amendments in countries in order
to be able to implement the framework decision properly because,
let us face it, it was finally adopted in rather a hurry after
9/11, even though it had been in gestation for some time. To repeat,
we will publish all the information we can possibly get We have
something called the "scoreboard plus" which is essentially
naming and not necessarily blaming; it might be naming and praising,
but we will name Member States showing precisely what has happened.
To illustrate and to answer your question more clearly, if it
is difficult for a Member State still, because it has not completed
internal constitutional changes, to extradite its own nationals
then, if the early cases that we can point to as successes concerned
non-nationals, so much the better. What we do not know yet is
how many cases are being delayed or have gone wrong because of
the difficulties. So far the story is a reasonably positive one,
much better than it would be without the framework decision at
all.
Q74 Mrs Dean: Can I turn to police
co-operation? There are a significant number of EU bodies which
now exist to facilitate practical co-operation between Member
States' police forces. What types of crime are they unable to
tackle effectively at the moment and do you think there are areas
which require harmonisation rather than practical co-operation?
Mr Faull: There are areas where
we think that some legislation is needed. For example, we believe
that Europol, the European police organisation, could be more
efficient, could be more effective, if the current system on which
it is based, a series of conventions requiring ratification, were
replaced by a fully fledged legislative system. We are proposing
that that be done, and again we believe that it would be done
more effectively, more accountably, better in short, if it were
done on the traditional European Community basis of qualified
majority voting in the Council, involvement of the Parliament
and adjudication by the Court. There are other items of legislation,
and I will choose two categories, one already in the system but
going through slowly, and the second still to be introduced. We
have legislation, for example, within the Council system but,
frankly, bogged down there on racism and xenophobia and on minimum
procedural guarantees for suspects and defendants. We believe
that both of those issues are important. We believe they are important
not because there are Member States which do not take racism and
xenophobia seriously or do not take defendant or suspects' rights
seriously, but because we believe that the European interest would
be served and European law would be better enforced if there were
a common minimum set of rules across all Member States. That would
enhance the confidence that European citizens should feel in their
different legal systems. Then, looking ahead, we have agreed at
the highest level, at the European Council level in the EU, adopted
something called the principle of availability which means that
information held in one Member State to which the law enforcement
authorities in that Member State would have access should be made
available to the law enforcement authorities in other Member States
on the same terms as the national law enforcement authorities
would have to satisfy to have access. That is easy enough to say
is a principle; it is hard to work out in practice. What do you
do about DNA databases? What do you do about other forms of database,
of which there are very many now being collected all over Europe?
All of that needs to be worked out in practice. It is very important.
The law enforcement people all tell us how important it is for
their work in investigating serious crimes and their work in investigating
terrorism, not only in Europe but we hear from our American friends
and others further abroad that they would love to be in on any
advances we make in these areas as well. It is not easy. There
are very important data protection issues to be sorted out in
each case. Again, it would be better if we could embark upon those
legislative projects on the basis of qualified majority voting,
involvement of the European Parliament and adjudication by the
Court of Justice at the end of the day.
Q75 Mrs Dean: Could you describe
to us the difference between Europol and Interpol and what is
the potential for co-operation between the two bodies?
Mr Faull: Interpol is a universal
international organisation. It does extremely useful work and
we and Europol itself have good, close co-operation with it as
users of its various systems. For example, Interpol has a very
important database, to which we have contributed, of lost and
stolen passports. It is very important that immigration officials,
when presented with a passport, can very quickly check that it
really is the one which was issued to the person before the immigration
official. That is something which we are all very happy to do
through Interpol, and we and the Americans, in fact, together
took the initiative to make sure that everybody pours in their
lost and stolen passport information to that database. Another
very important illustration of Interpol's work is in tracing child
pornography websites. Interpol again has a very large database
of offenders, of images, enabling it to determine fairly accurately
where filming, kidnapping or whatever lay behind the dreadful
images which are made available, took place. They can, for example,
look at a wall like that—they gave us a very useful presentation
once—and find somewhere, the electricity point which is
in the corner there, and tell you what country it is from. That
is all very useful. That is Interpol work, not Europol work, and
we fund that, by the way, we, the European Union. Europol is a
much more focused and, if you like, intimate organisation based
on the need for the European Union itself with a fairly open,
large territory to co-ordinate its own police work across that
territory, knowing that the police forces, of course, are operating
at national and local level everywhere. Europol is designed to
co-ordinate, and perhaps one day actually to run, investigations
itself in a way which Interpol is not designed to do at all. Interpol
is not a police force in any way. It is a relatively loose international
organisation co-ordinating work all across the world.
Q76 Mrs Dean: How effective has the
Schengen Information System been in tackling cross-border crime?
What major developments are envisaged in the second generation
system?
Mr Faull: I think it has been
very effective. When you consider all that has happened in the
world since the Schengen area was created, the fact is that it
has proved remarkably robust. We have kept borders open with the
exception of very short closures for large international events,
sports tournaments, even European summits, from time to time.
On the whole we now have a whole generation of Europeans perfectly
used to moving around freely between most of the Member States
of the European Union plus Norway, Iceland and very soon Switzerland.
That is only possible because of what is going on behind the scenes,
because of the co-operation that was already in place, of course,
but no doubt is seen by the general public to have taken the place
of what used to happen at the border. It is much more complicated
than that because the borders were already losing their significance
as intelligence-led police work became more and more important,
but today among nearly all Europeans, not you and not Ireland,
of course, the borders have disappeared internally, which means
in turn that the external borders are run collectively and that
there is a sophisticated system of co-operation behind the scenes,
the Schengen Information System first generation being the system
in place still today. What will happen in the second generation
is that first of all the capacity will be considerably expanded
because the Union has expanded and more Member States will join,
and we have technological and other political developments to
take account of in the intervening years, the advent of biometrics
and the further work, again among the Schengen countries, on a
common visa policy. All of those new developments will be integrated
into the second generation system.
Q77 Mrs Cryer: It has been said that
mutual recognition of decisions taken by national judges is set
to become the cornerstone of judicial co-operation on criminal
matters. I know that you have already said that making information
available state-to-state is going to be extremely important in
all of this. The Commission has stated apparently that "the
functioning of the European judicial area could be undermined
by differences between national criminal legislation", and
that approximation of legislation is needed to avoid criminals
being able to choose the jurisdiction under which they are tried.
Therefore, how far has the functioning of the European judicial
area been undermined in practice by differences in Member States
and how significant is the issue of criminals choosing to be tried
in different jurisdictions?
Mr Faull: First, we do believe
that mutual recognition is at the heart of what we are trying
to do and we look forward to a Europe in which a judgment given
in one country will without further ado be recognised and enforced
in all the others. We are not there yet. One of the reasons we
are not there in some cases is that differences between the legal
systems pose obstacles. There are two reasons why mutual recognition
is still an aspiration rather than a reality. One is relevant
differences (and only relevant ones), and, secondly, there is
still a lot of mutual trust to be built up between legal practitioners,
between judges, between lawyers, and above all between the publics
of our Member States so that they feel that they get as fair a
trial abroad as they do at home. We are, frankly, a long way from
that. Most Europeans stubbornly believe that their national system
is the best. Some even more stubbornly believe it is the only
fair one there is. They cannot all be right, obviously, but that
is a popular view which is out there and is sometimes an obstacle
to the simple position that what happens in one country should
be followed easily in the others. Mutual recognition is at the
heart of it but there is some need for common ground on some of
the issues that we are talking about. For example, there are considerable
differences in laws in the European Union regarding expressions
of racist and xenophobic views. It is a matter of considerable
controversy in most of our countries and, for quite obvious historical
reasons that I do not think I need to go into, some countries
treat racism and xenophobia more harshly than others, some believing
that freedom of expression is the paramount value and that we
have to put up with unpleasant, offensive language, others believing
that some language is so offensive or so redolent of horrors in
that country's history that freedom of expression should give
way to a certain extent. Those are in a nutshell some of the differences
we have to deal with. It is not difficult to exploit those differences
by publishing material or by publishing a website in the country
where the regime is most favourable, and that happens. Another
example, not necessarily exploited by criminals but one which
goes to the heart of the question of mutual confidence which I
think is the necessary prerequisite for mutual recognition, is
the question of minimum procedural guarantees. We are, and I will
be very frank with you, having great difficulty in persuading
the Council of Ministers that robust legislation is needed to
create a minimum set of common procedural guarantees for suspects
and defendants across the European Union. The answer we are sometimes
given by those who do not see the need for such legislation is,
"But we all have the European Convention on Human Rights.
We all have the European Union's Charter of Fundamental Rights.
We have a lot of common rules already. We are all democracies,
after all, and we all respect the rule of law. What more could
you possibly want?", the answer to which is that we do not
have some of the more detailed rules which would go a long way
towards reassuring people. It is nowhere written down that Europeans
have the right to a translator to explain what is going on when
arrested in a foreign country. Normally it happens. Again, most
of our countries provide this and we are all democracies, it is
true, but it is not written down anywhere and it would, it seems
to us, be a considerable factor of reassurance for European citizens,
all of us, to know that certain minimum rights are guaranteed
across the European Union, whatever Member State we find ourselves
in, those rights being written down in a form which everybody
can read and understand in their own language.
Q78 Mrs Cryer: Can we go on to the
drawing up of proposals? How much does the Commission draw on
the practical experiences of Member States as opposed to matters
of principle such as democratic control?
Mr Faull: We draw enormously on
the experience of Member States. We are very conscious of the
fact that we are sitting here in Brussels, a long way from the
sharp end of criminal law enforcement in our Member States, and
therefore, before putting pen to paper, we think many times about
the need to do so and we collect as much factual evidence as we
can from those who practise law, who are responsible for criminal
justice, whether in parliaments, in ministries or in private practice
as lawyers, in the Member States. We do not start from positions
of general principle other than, of course, always to have in
our mind—and you mentioned the principle of democratic control;
that is obviously very important and we are not about to forget
it—the fact that we have to prove in every case that European
action is needed, there are many people who need to be persuaded
of that and we have a considerable to discharge which can only
be discharged properly by amassing facts and explaining why there
is a problem that needs to be solved.
Q79 Mrs Cryer: What is the extent
in the Commission's view of the competence of the European Community
to adopt criminal law into its First Pillar?
Mr Faull: That depends on a reading
of one paragraph of one judgment of the Court of Justice at the
moment. No doubt anything that happens will be challenged and
litigated and will give rise to further judgments, so I will be
cautious in my answer. In our view, where there is an important
policy objective laid down in the European Community Treaty and
it is necessary, in order to give effect to that important policy
objective, to create in Community law a prohibition, and in turn
it is important to provide a proper enforcement of that prohibition,
then the European Community may (and it is the Council, of course,
not the Commission) or the Council and Parliament may require
that certain minimum criminal sanctions be applied.
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