Select Committee on Home Affairs Minutes of Evidence


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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