Examination of Witnesses (Questions 80-96)
MR JONATHAN
FAULL AND
MR LUIGI
SORECA
28 NOVEMBER 2006
Q80 Chairman: Mr Faull, you have
spoken as though approximation of legislation is a sort of one-way
journey towards greater public acceptance or mutual recognition.
Do you accept that there could be circumstances in which, at least
in some individual countries, it could damage public acceptance
of the idea of mutual recognition and co-operation within the
EU?
Mr Faull: Yes, if done wrongly
or insensitively, I suppose it could. We are at all times aware
of and sensitive to the legal traditions and principles which
differ from one country to another and we respect them, we do
not seek in any way to change them, which means that when we embark
upon the necessary but exceptional approximation of substantive
notions of criminal law we do so in a way which respects and preserves
national traditions. If we do all that right we, the Commission,
in making an initial proposal and then the Parliament and the
Council coming together to legislate, if we are in the First Pillar,
or the Council alone in the Third, then I do not think we should
produce the negative result that you refer to.
Q81 Chairman: Can I ask you how you
might approach one of the particular topics that you mentioned
earlier, which is xenophobia? As you will know, in our Parliament
there has been a furious debate over five or six years now about
the possibility of outlawing some form of crime of religious offence
or hatred or whatever which Parliament has been reluctant to approve.
As it happens I am one of those who has been in favour of it but
I have been in a minority in Parliament on that issue. We have
recently had a case under which a far right leader has been able
to be acquitted under the existing state of the law because his
offensive remarks were limited to religion rather than to race.
If our Parliament were to adjust our laws, and it is a moot point
as to whether they will, so that those sorts of remarks would
be caught in the future, I can see that that would be seen by
the public in the UK as a democratic national decision. If changes
to our law in this sensitive area were introduced as a result
of qualified majority voting, or indeed any type of European process
on which we had to confer, it might actually create a situation
where we were making a problem worse rather than better. How do
you go about, in these very sensitive areas where national traditions,
as you say, are very different, avoiding simply inflaming a problem
in a particular country?
Mr Faull: With enormous caution.
I do not think that the European Union should be responsible for
settling controversial debates of national policy or national
law in that way. I do not think that is what the European Union
is for and I do not think it serves the European Union well to
put it in that position, so I would do everything I could to avoid
that being the outcome of the proposal, and when considering what
definition might be acceptable across all Member States for xenophobia,
say, we would certainly bear in mind the state of national law
and debate in each country before doing so, and it may be that
we just fail to make any progress, which frankly is the position
at the moment. I do not suggest that with qualified majority voting
we would necessarily have got a framework decision or a directive
on racism and xenophobia on the statute books already. I do not
know whether that would have been possible. For a long time it
was apparently the case that one country alone was blocking progress
but we have rather suspected all along that others were keeping
quiet and hiding behind that Member State (not the United Kingdom,
by the way) and, lo and behold, when after a change of government
in that country its position changed, we found various other countries
with similar difficulties. It may be that some subjects are just
too hard and that the state of national debate in various countries
across the Union is so different that a common view is impossible
to find. That is a pity because the necessary confidence which
any criminal law system needs as a basis is hard to find in Europe
if there are too many cases of that sort, but this is a hard subject.
It is a relatively new subject for the European Union's activity.
It is therefore, I think, right and proper that we should proceed
modestly and humbly in the way we operate. Can I make another
point which is important in this respect and relates specifically
to the British position in respect of the bridging clause? I see
you sometimes refer to it as "gangplank", which sounds
rather sinister. I shall say "bridging clause" if I
may. "Gangplank" makes one think of walking it. The
United Kingdom has an opt-in system, of course, and one of the
results of use of the bridging clause by moving subjects from
the Third to the First Pillar would mean that those subjects would
no longer be subject to the unanimity rule but would be subject
to the United Kingdom's opt-in rule, and that is a feature, I
think, of the rather complex legal arrangements that we are talking
about which are sometimes forgotten but would be worthy of some
attention.
Q82 Mr Benyon: Can I come back to
the point that John Denham was making earlier? It has been put
to us that the reason many of these proposals have hit the buffers
is precisely because the Commission was too ambitious in the first
place. You seem to be saying that you come at this in a very humble
way and with an understanding of the sensitivities in different
states, but there is a belief amongst some Member States that
actually it was precisely the reverse. You completely refute that?
Mr Faull: I am not saying we are
perfect and maybe we get some things wrong so I am not saying
I totally refute it. I think on the whole we have made reasonable
proposals. I notice that most of the time a considerable majority
of Member States agrees with what we are doing. I notice also
that, since in the Third Pillar at the moment Member States also
have a right of initiative, where Member States have made proposals
they do not seem to fare much better than ours, some make it,
some do not, and therefore I am not saying that we are not at
all responsible for the current difficulties but I do not think
an over-ambitious Commission is really the main reason.
Q83 Mr Benyon: Can I ask you a quick
question about Eurojust and the European Judicial Network? What
challenges, in terms of judicial co-operation, does the EU face
which you feel Eurojust and the European Judicial Network are
unable to address and are there any particular crimes or cases
which cause difficulties in this area?
Mr Faull: First of all, the judicial
co-operation network on the whole we are satisfied with. It works
well. It brings the people who need to talk to each other together.
It has a website which spreads information around fairly satisfactorily.
It is a complicated area because case law needs to be translated
and explained from one place to another. As for Eurojust as an
institution, as a body, I think it has done a fairly good job.
I think it has potential. I think in some big cross-border prosecutions,
for example, taking our own business, a set of cases of fraud
against the European Union itself, the co-ordination that Eurojust
is able to carry out among national prosecutors is very helpful,
but it is only that. It is co-ordinating national prosecution
efforts. It cannot bring them together in one prosecution effort.
Okay, it is not a European prosecutor, that is a path which has
not been followed yet, and the various procedural and substantive
difficulties where various national legal systems are being used
to prosecute the same set of facts are there whatever Eurojust
does, but Eurojust enables them to be identified and to share
information about them. That is true also of international trafficking,
in women and children mainly, and in child pornography, in all
of which Eurojust has played a very important role in co-ordinating
prosecutions across a number of Member States. It is doing a very
important job.
Q84 Mr Benyon: In the next few questions
many of the areas have already been covered; they are concerning
the European Arrest Warrant and the European Evidence Warrant.
Related to that, on mutual recognition, I sense that you feel
that mutual recognition still represents the best basis for policing
and judicial co-operation. Can you think of areas where it has
unsuccessfully addressed real problems in tackling crime and areas
where it has been particularly successful? Give us an idea of
where you think it is working well and where it is working badly.
Mr Faull: I will come back to
examples already given, and I do that because there is not a vast
body of legislative proposals out there. We do not see this as
an area where there are going to be hundreds of directives or
hundreds of framework decisions. We have, frankly, a limited set
of ambitions. The evidence warrant should be, and is to a certain
extent because the way it came out is not perfect but it is worth
having, a very important instrument for mutual recognition whereby
a judge in one country says, "I am investigating a particular
case. There is an item of evidence which is of importance for
my case. It happens to be located somewhere else. I want it",
it should be as easy as we can possibly make it for the legal
system at the other end to provide that evidence and send it back.
If we have to go through, as has been the case hitherto under
traditional mechanisms of international law and practical co-operation,
a whole process which can or cannot be politicised in some way,
which can involve judges only but not necessarily, for determination
of whether it is appropriate for the country receiving the request
to provide the evidence to the country which made it, that is
going to take a long time and is going to undermine the very notion
of a common area of justice which the European Union is supposed
to represent. The evidence warrant is an example of an imperfect
mutual recognition device where things are easier than they used
to be. They are still not as easy as we would like them to be
but it is worth having. Among the 32 crimes listed in the European
Arrest Warrant drug trafficking is the one in which the warrant
has so far proved most successful in dealing with drug traffickers
and there are already—and we will give the figures in our
next report—a number of cases of surrender of alleged drug
traffickers from one jurisdiction to another to face trial.
Q85 Mr Benyon: What effects could
legislating for minimum standards on defence rights have on Member
States' authority to decide issues such as pre-charge detention?
You will be aware of the contentious issue that that was last
year in the UK. In such sensitive areas how strong is the operational
justification for pursuing a path of approximation or minimum
standards in this area of law?
Mr Faull: I think there is a strong
general case for minimum standards and I think there is scope
for very lively argument about which particular issues should
be subject to minimum common standards. Are we talking about the
right to have a translator, the right to place a call to your
embassy or consulate, the right to a statement of your rights
in your own language? Are we talking about more sensitive subjects,
such as the number of days you can be kept in prison without charge,
knowing that, particularly in the recent period, that has been
a particularly controversial subject affecting a number of Member
States, and also a subject which reflects very different legal
traditions across the Union. We are well aware of that and it
seems to me that our humility and modesty principles apply to
our approach to such issues.
Q86 Mr Clappison: On the same theme
of further areas of decision-making for the Commission and the
Council of Ministers, Commissioner Frattini has stated that "the
question of migration must be considered in a new perspective".
What plans and aspirations does he have in the field of migration
and illegal working?
Mr Faull: First of all, just to
link the two subjects, we are in the rather odd position at the
moment that most of illegal immigration and asylum issues are
dealt with under the First Pillar while legal migration, economic
migration issues are dealt with under unanimity rules. That for
a start strikes us as rather odd, dealing with two facets of the
same phenomenon in such different ways. It does not strike everyone
as odd, obviously, but we do feel rather hamstrung in our ability
to deal with migration as an international phenomenon given that
legal dichotomy. What are his aspirations? I think his aspiration,
and this is no doubt a very long term one, is that the drama and
tragedy of illegal immigration into the European Union, most recently
mainly across the southern Mediterranean border but in recent
memory as well across the eastern land borders, should stop. At
the moment every summer, as soon as the weather is reasonably
good in the Mediterranean, there is a constant flow of fairly
shaky vessels setting out from the coast of north and recently
west Africa to reach the shores of Italy, the Canary Islands and
Spain as well, leaving hundreds of people dead every summer in
the Mediterranean attempting to get across, leaving thousands
stranded in the transit countries of north Africa not able to
leave to get across to our borders where mostly they would be
illegal migrants, and leaving Malta, Italy and Spain in particular
with the enormous burden of coping with illegal immigrants, not
necessarily all illegal but certainly immigrants through irregular
channels, arriving in their territory, some with asylum claims
to make, some with papers, some without papers, and all in all
a considerable burden upon those countries, knowing all the time
that the intention of the people concerned was not necessarily
to settle in those countries at all but to break out and move
further north if conditions were possible. Mr Frattini would like
that to stop. He does not believe it is in our interests, he does
not believe it is in Africa's interests and it is certainly not
in the interests of the people concerned. The long term solution
to that problem is economic development in Africa. People most
of the time are happy to stay at home if conditions at home are
conducive to a normal decent life.
Q87 Mr Clappison: That is a big ambition
though.
Mr Faull: It is a huge ambition.
It should not be forgotten but it does not solve this summer's
problem or next summer's problem. We are well aware of that. The
global approach to migration, which involves at the highest level
the United Nations but at a region-to-region level a very serious
dialogue between Europe and Africa, is extremely important and
that must go on in parallel while at the same time we deal with
the symptoms of the problem as they are felt daily here in the
European Union. What can we do about it? First of all we can help
the Maltese, the Italians, the Spaniards and to a certain extent
the Greeks and the Cypriots as well patrol their borders, patrol
the Mediterranean. We can help them with equipment, we can help
them with people, we can help them with techniques, we can share
the burden, we can help them with money. The European solidarity
is not just a buzzword in this area. It is an important principle
and one that requires working out in practice. These are our borders,
and I say "our" meaning all of us, Schengen or not.
They are doing our job, they are protecting our external borders,
we should help them do so and we do help them do so. We have,
albeit with limited resources, an External Borders Agency now
up and running in Warsaw to which Member States are all contributing
and a great deal of effort is being made to help the southern
Member States, and to a certain extent the eastern ones as well,
discharge their burden of operating in the common interest of
their borders. We also have to be aware of the fact that we exercise
a considerable pull factor for illegal immigration by providing
employment, often illegal employment, for illegal immigrants and
if we are serious about stopping not only push from there but
also pull from here Mr Frattini also believes that we should crack
down together on illegal employment. It is a crime in most Member
States, enforced in varying degrees in all Member States, in fact,
and we will be considering in 2007 whether a proposal for a Europe-wide
initiative, perhaps even Europe-wide criminal sanctions, should
be set in place in order to crack down on illegal employment.
Q88 Mr Clappison: Thank you very
much for that very wide-ranging answer which was very helpful,
but can I tentatively suggest to you that there is a distinction
as far as Europe is concerned between legal and illegal migration
because, by its very nature, each of the members of the Community
has it in common that the immigration is illegal. It is not to
say that people have done anything wrong; they just do not have
a legal right to enter the countries. We have that in common throughout
the Union and, as you say, there are lots of ways in which the
Member States can help one another, particularly on the southern
border and also possibly, which is slightly more contentious,
on the whole dialogue about international migration with the United
Nations and developing countries. On the question of legal migration
can I suggest to you that it should be for the individual Member
State to decide who they wish to have legally migrate into their
country, taking into account, for example, economic needs, and
this is the direction in which the British Government seems to
be travelling at the moment particularly? Is it not for each country
to reach an assessment of the economic and other factors peculiar
to those countries which they want to take into account in determining
the extent of migration, and also recognising the fact that there
are attractions? Some countries are frankly much more likely to
have mass migration than others in the Union.
Mr Faull: That is indeed the situation
as it stands today and I expressed some regret about it for several
reasons, one, because it means that when the Union collectively
talks to its neighbouring regions, which are the main sources
of migration, we talk collectively about one side of the picture
and then, as 27 different people, about the other side of the
picture, which is the number of people we welcome to join us legally.
I am not suggesting that there will ever be a European immigration
policy where somebody in Brussels will decide, "We will have
100,000 of this and 150,000 of that". What I do think would
be useful, and I speak from practical experience, is that when
we talk, for example, to foreign countries about re-admission
agreements, we negotiate on behalf of the Community readmission
agreements whereby the country on the other side undertakes to
take back illegal entrants to our territory from its territory,
whether they be nationals of the country concerned or even third
country nationals who transited through its territory.
Q89 Mr Clappison: That is going back
to the point about illegal migration and I am with you on that
point, but not on the legal point because that should be for countries
to decide themselves, taking into account their individual circumstances,
should it not? In Britain's case we have quite a lot of circumstances
to take into account which are particular to us.
Mr Faull: I understand that, but
when negotiating such agreements on the illegal side of the fence
with foreign countries we are severely handicapped by not being
able to talk about what they want to talk about, which is, "How
many legal migrants from our territory have you taken, will you
take, are you going to take?". We can tot up, in so far as
Member States actually have reliable figures, what each individual
Member State does and say, "This is what happened last year
and what we think might happen next year", but we have no
possibility of arriving at a common view on that, and I think
sometimes it would be in our interests to do so. Secondly, we
have free movement of labour among nearly all our Member States,
and pretty soon, I hope, among all of them, including those about
to join us. In an area in which people are moving around freely,
in an area in which for most of us Schengen makes that moving
around freely even easier, in an area in which decisions to regularise
(to use a Gallicism), to give papers to undocumented workers in
considerable numbers, those decisions are taken in individual
countries, all those things have an obvious impact on all the
others. However, because there is no Community policy on legal
migration, nobody needs to tell anybody else about it or conceive
of any common policy in that regard, we are frankly in a very
weakened position to move together in these important policy areas,
handicapping us, therefore, in our international relations (and
migration is an international issue), and, secondly, making it
very difficult to avoid the decisions which one country takes
causing immediate repercussions and a great deal of resentment
in most of the others.
Q90 Mr Clappison: Just on the first
of those points, and I take the point you make about the bargaining
which goes on on the readmission, allowing more legal migration
is not a solution to illegal migration in the countries in question
because there is literally an unlimited number of people who want
to come to Europe in those countries. You could allow a few more
people in legally and you would still have an equal number of
people wanting to come illegally because there is such a huge
pressure to come.
Mr Faull: There are some successful
examples of national practice in this area. The Italians, for
example, concluded agreements with Albania in the north and Tunisia
in the south whereby they said, "We will take a certain number"—a
quota in effect—"of Albanian and Tunisian legal migrants
respectively in return for a real concerted effort on your part",
they said to Tunis and to Tirana, "to stop in excess of those
numbers any illegal migration", and from what I understand
of the Italian experience that largely worked because they were
honest about it, they knew that, for all sorts of demographic
and other reasons, they would not mind the arrival of certain
numbers of regulated economic migrants, but they wanted to stop
illegal migration. I am not saying we can replicate that necessarily
but a policy which deals with illegal immigration as a collective
issue and legal immigration as 27 different national ones is a
considerably handicapped one.
Q91 Mr Clappison: We understand the
Commission is proposing framework European directives for specific
types of migrant workers. As you may know, the UK Government has
its own proposals on the table for what it calls a points-based
system for migration. What implications are there for that points-based
system in the UK from your framework directive?
Mr Faull: We have not finalised
it yet. We are watching with great interest the UK's ideas and
experience and the UK's ideas in turn were inspired by other systems
around the world which we are looking at as well. We will not
propose something which would radically change systems put in
place by Member States.
Q92 Mr Clappison: In the Commission's
view what are the current challenges for EU border management
and how do you view the future role of FRONTEX?
Mr Faull: The challenges are quite
enormous. We have extremely long land borders, we have complex
sea borders and we have a lot of international airports, so we
have a bit of everything. To run all of those borders under the
same rules, procedures and systems, which is true for the Schengen
area, is a challenge in itself but one that we have been meeting
already for some time. The European Union is expanding. There
will be two more countries in a few weeks' time and the external
border will therefore be moving outwards, but at the same time
on the internal borders there is a good prospect of the border
controls being lifted soon which will release people and equipment
to move them further out, so there are great challenges. FRONTEX
has really been in existence only for a very short period of time
and is still a rather small and under-staffed organisation. I
think it has a considerable role to play in risk analysis and
in operational co-ordination of the national border guards so
that they can more effectively help each other in times of difficulty.
Q93 Mr Clappison: What progress has
been made on the rapid reaction teams and what is their envisaged
role on external borders?
Mr Faull: As their name suggests,
and the legislation is before the Council, under discussion, not
adopted yet therefore, the idea is that there would be teams available
for rapid intervention in times of crisis at one of our external
borders. It could be at sea, it could be on land. The eastern
borders have been relatively quiet in recent years, the focus
being on the Mediterranean, but we have no illusions: that can
change, depending on events in our immediate neighbourhood, and
we have challenging neighbourhoods around the place. The idea
is that we would therefore formalise what already happens to a
certain extent, which is operational co-ordination between national
border guards lending people and equipment from one place to another.
Q94 Mr Benyon: I want to come back
on something you were saying earlier. We are having a debate in
the UK at the moment about migration and my party is putting forward
a proposal to have a sort of rolling allocation of the number
of migrants we would be prepared to accept. It is going to be
a very complicated process and I think it probably could work,
but the idea that this could somehow be dealt with at an EU level
seems to me fantastical. I take your point that it will give you
the ability to talk to neighbours, but I simply do not see that
it can be done in a way that is (a) effective externally but (b)
satisfies Member States internally.
Mr Faull: I certainly have no
comment to make on the internal British debates on this issue.
All we would want to be in a position to do would be to say that
the Member States of the European Union collectively take a certain
view about their economic migration intentions or needs. It might
be no more than adding up what each individual country plans to
do, because one way or another, whether specifically laid down
with targets or not, Member States do take a view looking ahead,
or they should be taking the view looking ahead, about the needs
of their labour market and how they intend to supply the needs
of their labour market. That involves thinking about future migration
trends and that is happening. It is happening at the moment in
isolation in 27 different ways and every country is having the
same sort of difficult debate within and between political parties
as you are. That in a European Union within which there is free
movement of workers, imperfectly but it is coming, among nearly
all of whose Member States the Schengen system is in operation,
strikes us as being an inadequate response to a common challenge.
Q95 Chairman: Mr Faull, you have
been very generous with your time. Just to close, can I assume,
given the lack of success in the Finnish Presidency, that we will
not hear any more about the passerelle proposal?
Mr Faull: No.
Q96 Chairman: When do you expect
us to hear about it next?
Mr Faull: Next week probably.
There is a Justice and Home Affairs Council next week, and then
there is a European Council. Frankly, I do not expect an enormous
breakthrough at either of those meetings. There will then be six
months of German Presidency of the Union and we will see what
happens during that Presidency to wider institutional issues which
may or may not be debated. By next summer we may have a better
view of where the Union is going more generally, and then it may
or may not be necessary to come back to the bridging clause issue.
Chairman: Thank you very much indeed
for your time.
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