Examination of Witnesses (Questions 163-179)
MS SALLY
IRELAND AND
MS JULIA
BATEMAN
9 JANUARY 2007
Q163 Chairman: Thank you very much indeed
for coming this morning. I think you heard the end of the previous
session so you will have a sense of some of the areas of interest
of the Committee. Can I ask you both to introduce yourselves for
the record and then we will get under way.
Ms Ireland: My name is Sally Ireland.
I am the Senior Legal Officer for criminal justice at JUSTICE,
the all-party human rights and law reform organisation.
Ms Bateman: I am Julia Bateman.
I am the Justice and Home Affairs Policy Advisor at the joint
Brussels office of the law societies of England, Wales, Scotland
and Northern Ireland but the evidence submitted in written form
and today is from the Law Society of England and Wales.
Q164 Chairman: Thank you very much
indeed. Can I ask both of you a general question. Quite a number
of the witnesses that we have spoken to, including ones that we
met in Brussels, suggested that after a flurry of activity involving
the European Arrest Warrant and various other developments, there
is now a period of stagnation in European Union co-operation on
justice and home affairs issues. Do you share that view and what
would you say would be the biggest challenges facing the EU in
justice and home affairs over the next few years?
Ms Ireland: We do share that view
in principle. It is in a sense the inevitable consequence of the
current regime for judicial co-operation and home affairs and
justice issues and in particular the requirement of unanimity
in the European Council of Ministers before legislative instruments
can come forward. There are three main problems with the current
regime. Firstly, there is a democratic deficit, obviously the
requirement of unanimity, the protection of states' sovereignty
means that our government has to consent to the measures but the
involvement of the European Parliament is of course very limited
in the third pillar procedure. Secondly, the procedure is ineffective.
Many measures have come forward and not made it through the Council,
others have been watered down, or specific safeguards have had
to be applied to specific states that have specific objections,
which, of course, is contrary to the whole idea of judicial co-operation.
Thirdly, there is a specific problem around defence rights, essentially
there is an imbalance because of the nature of the Council of
Ministers legislating, obviously as members of the executive branches
of their governments they are concerned with their own responsibilities
to public security and crime prevention and are less concerned
on the whole with issues such as defence rights. What we have
seen in particular in relation to the proposal for a Framework
Decision on procedural safeguards, and similarly with the proposed
Framework Decision for data protection in the third pillar, is
that those instruments have essentially stalled, and it would
be incredibly difficult, even with an enthusiastic German Presidency,
for them to go further under the current procedures.
Ms Bateman: I would support what
Sally has said. While the Member States do have an appetite to
continue collectively with a fight against organised crime and
terrorism, I do think you are right that there is a period of
stagnation. The broad political ambition and high level of political
commitment in The Hague Programme do not translate easily into
adopting practical measures in legislation and then implementing
those nationally. The major challenge, as Sally has set out, is
reconciling the law enforcement needs with procedural rights and
safeguards and access to justice, which you just addressed in
your previous evidence session. I think the failure for the Constitutional
Treaty to be fully ratified has had quite a lot of consequences
in the political and policy arena. The ambition in The Hague Programme,
although based technically on the legal basis under the current
treaties, was based on the future Constitutional Treaty. Indeed,
it would have involved a specific legal basis for minimal procedural
guarantees, admissibility of evidence, victim protection. With
the stall on the Constitutional Treaty it is, if not limited ambitions,
a bit of a wake-up call; reality has hit.
Q165 Chairman: Is it possible though
that the stagnation comes from the fact that the governments are
simply not being convinced that there is a need to put in place
these European Union-wide measures? If I reflected, as Chairman
of the Committee, on the evidence sessions we have had so far,
until today, most have been carried out, in my view, at a fairly
abstract conceptual level which takes for granted the desirability
of certain common European Union standards. Very few witnesses
we have had have been able to put practical problems, practical
experiences, of citizens of European countries in front of us
and say, "Here is a problem which is outrageous and needs
to be tackled". Is there perhaps a failure that the argument
for greater European co-operation on these issues has been driven
too much by people who share a political concept of what the European
Union should be like and not enough by people who are saying,
"Here are practical problems in criminal justice which cannot
be tackled without greater European co-operation"?
Ms Ireland: There is division
among the Member States. Reading the Government's feedback on
the Justice and Home Affairs meeting from 4-5 December of last
year, it was clear that while there are some States, like the
UK, which object to the idea of a binding instrument on procedural
safeguards, the majority of Member States were in favour of a
binding instrument, although there was disagreement on the content
of the instrument and the types of safeguards it would contain.[1]
Our position is there is a need for these practical measures in
order to facilitate, essentially, the goals of the European Union
and, in particular, of course, the free movement of workers and
others who wish to exercise their rights of establishment in other
Member States. If you have a situation where the rule of law is
not fully respected, where there are instances of mistreatment
of individuals in custody, for example, or lack of fair trial
rights, then obviously that will act as a disincentive to UK citizens,
for example, who wish to work and travel in those Member States,
as others have discovered to their cost when travelling and working
outside the European Union.
Ms Bateman: What you say in terms
of are they the practical consequences of the problems, there
is certainly a division between the high level political ambition
and what is happening on the ground. One thing the Law Society
has been looking at is effective defence and how a person would
have access to a lawyer, be it in each national system or be it
in a cross-border situation, notably with the European Arrest
Warrant. While I think it is going to take some time for the instruments
to live a little to see where the practical problems lie, what
I am hearing from practitioners is it is the problem of double
defence. Yes, certainly in the UK you would have a duty solicitor
provided upon arrest in terms of the European Arrest Warrant,
but what happens when that person is surrendered to Bulgaria or
Romania? Do they have guaranteed access to a lawyer and free legal
representation in that Member State? In those practical considerations,
that is something I would identify. I think it is the problem
of high level ambition but not enough consideration of practical
consequences or, as you suggested to the previous panel of practitioners
and operational experts, in the development of the policies. I
believe joint investigation teams is one of the areas where this
was seen as a key tool in cross-border law enforcement but I believe,
and I will clarify, that only two or three joint investigation
teams to date have been set up in the UK. That seems quite a low
level for something which was meant to be a key tool in the box.
Q166 Chairman: It would be quite
useful if you could do a bit of research on that for us. You do
not sound terribly optimistic about what might be achieved under
the German Presidency, their hope to revitalise the discussion
about the future of European co-operation in this area.
Ms Ireland: The Presidency's ambitions
are very laudable, and it is excellent that their justice ministry
has stressed the importance of procedural safeguards, the rule
of law and of legal certainty, but under the current procedures
there will be immense limitations on what they can do, as a previous
presidency has discovered[2].
If I can add something to the previous question. It is also very
important to stress that, as The Hague Programme envisaged, the
securing of minimal standards in areas like procedural safeguards
is essential for the mutual recognition regime and for encouraging
trust in the regimes of other Member States' legal systems. Essentially,
where you have something like the European Arrest Warrant, although
we do have some safeguards in our 2003 Extradition Act, it is
obviously designed as a highly fast-track procedure. Where you
have a proposal like the proposal to take account of convictions
in other Member States in criminal proceedings in this country,
if a judge in this country cannot be confident that that conviction
was obtained after a fair process and the sentence was a fair
reflection of the crime which occurred, then it would be incredibly
difficult for the judge to accord any weight to that conviction
as he will be required to do by legislation.
Q167 Mr Clappison: On the point about
the measures to enhance security which have been taken at a European
level, you feel there is a gap between those measures being taken
and then the corresponding measures which are needed to give protection
of rights in the light of those measures. I was wondering if you
could give us some examples of that and where you feel there is
a particular deficit?
Ms Ireland: The most evident example
is the use of the European Arrest Warrant without the Procedural
Safeguards Framework Decision having been implemented, which I
have mentioned. Obviously the benefits of a fast-track extradition
regime are immense, but it is a necessary corollary that we can
be confident that somebody will have a fair trial when they arrive
in a European jurisdiction. There will be more concerns about
some EU Member States than others, that is certain. It is notable
that during the accession process, of course, the European Community
takes measures to ensure things like judicial corruption and maltreatment
of suspects are discouraged actively, however, obviously these
things can be part of a culture which can take years to break
down.
Q168 Mr Clappison: Where is the blockage
on this, and how confident are you that it can be overcome?
Ms Ireland: The blockage on procedural
safeguards?
Q169 Mr Clappison: Yes.
Ms Ireland: Essentially, it is
within the Council itself. There is more than one Member State
that is opposed to the proposal. The UK is one Member State that
is opposed to the Procedural Safeguards Framework Decision, in
a sense surprising since, of course, we in this country have a
high level of procedural safeguards afforded by our own legislation.
The UK's position, as I understand it, is that the Framework Decision
would not add anything to the obligations under Article 6 of the
European Convention on Human Rights. The Irish Government also
objects to the Framework Decision on quite specific grounds to
do with the Irish constitution and those are discrete to Ireland.
There are other States which object, apart from the UK, but with
the requirement of unanimity it will be almost impossible to put
that through.
Q170 Mr Clappison: Do you think this
failure to put in place a corresponding safeguard undermines trust
between Members States on this process, perhaps trust generally
in Europe?
Ms Ireland: Of course one can
only talk theoretically but, yes, absolutely, because although
it is true to say that the Member States of the European Union
have acceded to the European Convention on Human Rights, the obligations
in the Convention are, by its nature, broadly drafted. JUSTICE's
Director, Roger Smith, for example, wrote an article last year
on legal aid in the European Union, and what he found was legal
aid provision across parts of the Union is sketchy—to use
a colloquial—and although that is an obligation under the
European Convention, it is not there in practice. Under the third
pillar there is no real enforcement mechanism for making sure
that even if the Framework Decision was passed States could be
held to account properly if they were not implementing its provisions.
Ms Bateman: Can I follow up on
that about the balance between law enforcement and the safeguards.
I support fully what Sally has said about the safeguards proposal.
Originally the UK was supportive, with some qualifications, of
the Framework Decision as beneficial to the area of Freedom, Security
and Justice. That policy has been changed, I think, based on domestic
events and domestic political priority. We are very disappointed
by this because the UK has a high level of procedural safeguards,
the Police and Criminal Evidence Act was mentioned earlier, so
we are disappointed that the UK is not leading the charge on this.
Q171 Mr Clappison: Before you move
on because I am interested in that, I may have missed something
here and failed to draw a connection, in your view, what are the
domestic changes which have brought about the UK change in view
on this?
Ms Bateman: Without sounding like
tabloid speculation, I do think the events in London in July 2005
have changed the perspective in terms of security, and anti-terrorism
is high on the agenda. The Law Society has always taken the position
that the EU should work collectively to fight organised crime
and terrorism, but we do think that simultaneously, and as a counter-balance
to that, there should be the safeguards and access to a lawyer
or access to interpretation. Just to revert, we do find it disappointing
that there is not commitment on that and not just in terms of
processes in this country. Chairman, you talked about potentially
one of your constituents being transferred to another Member State
and we think the Government should be supporting the UK citizens
and your constituents in terms of their safety and security throughout
the European Union as a whole. Although there does appear to be
a competence issue, or does the European Union have a role in
this, we do not think the Framework Decision, as drafted, would
have any significant impact. Domestically, we fulfil those requirements
already, so it is really quite disappointing.
Q172 Chairman: You are saying the
British point of view is ultra-caution or seeing a problem where
there really is not one?
Ms Bateman: Yes. Just to continue
on that point, a lot is said about procedural safeguards, the
Framework Decision but, equally, as you have just discussed, in
terms of safeguards, the principle of availability will be active
from January 2008 and it is unlikely that the Framework Decision
on data protection in police and criminal matters will be adopted
at the same time. Again, this echoes what happened with the Arrest
Warrant and procedural safeguards. Whilst there are measures on
the table dealing with safeguards, they are certainly a lower
priority and not given as much consideration as we feel they deserve.
Q173 Mr Winnick: Presumably both
organisations which you represent accept that all the European
states, or at least the majority of European states, are under
constant or acute terrorist threat, do you accept that?
Ms Bateman: I am not an expert
in threat assessment, I would trust the law enforcement agencies
in this country, but I accept there is a problem.
Q174 Mr Winnick: Ms Ireland, you
seemed a bit surprised. After what happened in London on 7 July,
I would have thought it would be pretty obvious that there is
a constant threat in all the European states.
Ms Ireland: Not surprised, I was
trying to think about some of the smaller European states and
whether they would face a level of threat in any way comparable
with that facing the UK. It is certainly true that terrorist networks
can take advantage of the lack of border controls, et cetera,
throughout the European Union to operate throughout the Union,
yes. Whether or not some countries would be as much of a potential
target as the UK would, it is certainly true that they can suffer
from terrorism.
Q175 Mr Winnick: If I can make the
point to you—I am being somewhat of a devil's advocate—when
criticism is made and too much emphasis is put on security, surely
the response of the responsible ministers, be it in the UK and
their counterparts, would be, since there is an acute terrorist
threat, which both of you do not question, then surely it is perfectly
understandable that there should be such emphasis.
Ms Ireland: I think it is natural
that ministers should be preoccupied by such a pressing and serious
issue, however, the safeguards we would advocate relate to matters
such as basic fair trial guarantees which should in no way detract
from counter-terrorism. Obviously basic human rights safeguards
should subsist as the international instruments provide under
all terrorist threat unless a state of emergency is declared,
which is not the case across the European Union. If it is merely
a question of time, then I am not privy to the capacity of ministers
to meet more often or to pass more legislation. In a sense, in
order for co-operation against terrorism to take place, it is
essential that Member States trust in each other's systems. Perhaps
some Member States would be happy to surrender somebody under
an EAW to a country where basic safeguards were not in place or
were not followed in practice, but others may not be. If somebody
successfully resists extradition in the courts, they are not surrendered
by the courts on the basis that their human rights will not be
guaranteed, as happened, in fact, in an Irish High Court case
in relation to the UK, it was not a terrorist case, but in the
Irish High Court a man called Stapleton won on the grounds that
his trial would be prejudiced by our lack of sufficient guarantee,
as they thought, against a prejudicial trial after a long period
of delay, that kind of lack of trust can undermine counter-terrorism
and other policing purposes.
Q176 Mr Winnick: It is a question
of balance, is it not? Where you differ from the Government, and
perhaps the governments involved, not just the British Government,
is where the balance should be? Neither of you, of course, would
challenge that there needs to be a balance between protecting
people, including yourselves as well as the rest of us, from being
murdered and, at the same time, safeguarding traditional liberties.
It is a question of the differences, is it not, between governments
and yourself where the balance should lie?
Ms Ireland: Sometimes notions
of a balance in this context can be very unhelpful. It would certainly
be our position that due process guarantees enhance human security
and, of course, the liberty and democracy which we hope to protect
through counter-terrorism operations. Of course, if it is a question
of the balance of the legislative agenda, or how to occupy a finite
amount of time on the part of the institutions, then one could
talk about balance.
Q177 Chairman: Is the problem though,
just to pursue this, not probably in relation to terrorism, but
in terms of ordinary UK citizens going around the European Union,
the NGOs, including yourselves, have not really managed to persuade
Government that there is a major problem of UK citizens suffering
injustice in other European countries and, therefore, it simply
does not get to the top of the agenda on the principle, "If
it ain't broke don't fix it", and "there are other deals
we want to do in the European Union". Although we have got
some individual cases from Fair Trials Abroad and so on, relatively
little time is taken up in Westminster with MPs needing to raise
constituency cases in other European Union countries and so on.
Is not the problem that the legally interested NGOs campaigned
a conceptual problem but have not yet managed to convince decision-makers
that there is a real problem which requires getting rid of unanimity
and decision-making and all the rest of it?
Ms Ireland: There are several
answers to that point. The first one is, just to speak for JUSTICE,
we do not deal with members of the public, so individual cases
would not necessarily be brought to our attention as they would
be to Fair Trials Abroad, so that is not our role. Secondly, in
relation to many of the guarantees we advocate, obviously as a
Committee of UK MPs you will be very preoccupied with the rights
of UK citizens travelling abroad but, of course, they will apply
to EU citizens generally, raising the level of protection for
EU Citizens and enhancing the rule of law across the EU of import
beyond its impact on UK citizens. I could only speculate on why
it is that cases have not come up in the same way. I gave evidence
to this Committee in relation to the US-UK Extradition Treaty
2003, and obviously there has been a much greater level of media
debate and public concern about that Treaty than there has been
about the EU countries. It may well be that the US is putting
in many more extradition requests certainly than individual EU
countries do in relation to UK citizens,[3]
so the instances have not come up in the numbers they have done
in relation to the USA. It may well be that obviously in relation
to a number of EU countries there are only very small numbers
of UK citizens travelling and working there. What we would say
is the travelling and working is not the only instance. If we
have somebody who comes to this country, whether it be an EU national
through another state or a third country national or a UK national
who has previously lived abroad who has got a conviction in that
other EU country and then our judges are going to be asked to
look at that conviction and take account of it, as they would
with a conviction in our courts, then that issue of mutual trust,
which can only be guaranteed by common safeguards, will be very
much alive.
Ms Bateman: Again, it does go
to the issue of the practical examples or practical problems.
One of the most high profile cases recently is the Michael Shields
case, the young Liverpudlian in Bulgaria, and I keep referring
to Bulgaria mainly because it is a very new Member State. In a
sense, I think he had the support of his MP and MEPs and there
were lots of diplomatic ambassadorial relations, and the media.
Not everybody who has suffered a miscarriage of justice, to call
it that, or even a minor infringement of their rights, has that
kind of support and that kind of profile, so I do think there
are probably lots of incidents of people which we are not aware
of. Another example I would use, again in the media interest,
is football hooligans. There were a lot of problems in Portugal
in terms of street fighting and pub fighting. A lot of UK citizens
would pay for example a €200 summary fine to be able to go
home. When the mutual recognition of convictions and sharing criminal
convictions comes in, those people will have the equivalent to
an affray or even a GBH conviction that they were not tried for,
they had no legal representation, and which could count as a repeat
offence in terms of sentencing and in terms of aggravating circumstances.
I cannot refer to specific cases but I do think those examples
are some that would work.
Q178 Mrs Cryer: Julia and Sally,
can I ask you a group of questions about the mutual recognition,
the European Arrest Warrant and then, for the future, the European
Evidence Warrant. Has the principle of mutual recognition gone
as far as it can as a core principle of EU co-operation? Should
that be the case? Should the EU now seek another method of co-operation?
Ms Bateman: The Law Society has
always supported mutual recognition rather than the alternative
of harmonisation because we do not see the need or grounds or
legal basis to harmonise procedure under substantive criminal
law, but I think there are problems with mutual recognition. Certainly,
as we have all talked about, the mutual trust which is supposed
to support mutual recognition, or indeed justify mutual recognition,
is not there. Secondly, issues like the removal of the dual criminality
requirement or verification has allowed for the fast-track mutual
recognition processes in the European Arrest Warrant. The so-called
list of 32 offences which are no longer deemed necessary to have
dual criminality checks have then been transposed into the Framework
Decision on the freezing of assets into the European Evidence
Warrant. We think there are problems with the removal of the dual
criminality verification, not necessarily in theory but because
the list of so-called crimes are broad definitions of criminal
activity rather than specific crimes. There are very different
definitions within Member States as to what those mean. In terms
of a judge checking that the person before them is the subject
of an Arrest Warrant for a particular crime, or the forthcoming
Evidence Warrant, then there are problems of equivalence and,
indeed, challenging those notions, so I think mutual recognition
has hit an obstacle.
Ms Ireland: The scope of mutual
recognition did not end with the EAW. We do see examples of other
instruments, like some of those that Julia has mentioned, coming
through the Council in terms of police and judicial co-operation
on, as we may call it, the prosecutorial side. The problem with
the alternatives which are available, I am sure you heard evidence
on the passerelle and the use of Article 42, to take the judicial
co-operation pillar into the first pillar so that voting procedures
could be altered to Qualified Majority Voting, so there would
be codecision with the European Parliament, which is probably
the most likely alternative on the table, that and what is envisaged
by the European constitution. There are other problems with that
alternative and once you have Qualified Majority Voting, although
you have an opt-in procedure for the UK so that there would be
a retention of sovereignty, it does not solve entirely the problem
that you may get of the UK opting in to proposals which are only
approved by, say, 55% of Member States. There will be a greater
role for the European Parliament but, more importantly, once the
Government has agreed to a measure my understanding is that it
would become directly effective, as a European trade regulation,
for example, now is, and that the role of the UK Parliament then
would be severely curtailed. One of the compensating factors for
measures, like the European Arrest Warrant, is that where you
have new countries acceding to the European Union, if there are
concerns in this Parliament then it is open to this Parliament
not to vote to add those countries to the list of States in Part
I of the Extradition Act so, although politically that can be
very difficult to do, I understand, there is that safeguard. Once
you have direct effect that safeguard is gone and so we would
be very nervous about the kind of legislation that would go through.
It is a very difficult decision because I think that it would
be much more likely we would get something like procedural safeguards
through under QMV, but who knows what else would come through
in terms of substantive harmonisation of criminal law, of penalties?
There has been some panic journalism, if I can call it that, in
this field—the `loss of habeas corpus' or jury trials.
It is impossible because the UK would never opt-in to such a proposal,
but there could be regulation that we would not welcome.
Q179 Mrs Cryer: How effective do
you think the European Arrest Warrant has been and are you aware
of any particular problems regarding the protection of human rights
because of the operation of the arrest warrant?
Ms Ireland: The European Arrest
Warrant has certainly improved the situation as regards extradition,
as you will know. Previously, there were many avenues for challenging
extradition and there were appeals. A lot of those in relation
to Europe had in fact, I believe, been abolished by the time the
EAW came through, but the EAW certainly does provide a very efficient
method. It is, however, highly dependent, of course, on this aspect
of mutual trust. It is in its relatively early days and most of
the cases where there have been challenges to the EAW, it could
be said, have been on a fairly technical basis essentially to
do with the validity of various documents, that sort of thing,
and so there have been minor teething issues. As you may know,
there have been bigger problems elsewhere in the Union: the German
constitutional court's decision, for example; there was also a
decision in Poland which found it was incompatible with the Polish
constitution. However, in the UK it does seem to have worked well.
In terms of human rights problems, I could not point to specific
examples here. I would say generally that in relation to extradition—and
some of you already heard me talk about this in relation to the
US, so I apologise for repeating myself—that a general human
rights guarantee, as we find in the Extradition Act, is quite
an unhelpful way of securing citizens' rights in the extradition
context on its own just because the threshold that is required
to prevent extradition is very high. I did see a summary of one
EAW case where, although evidence was provided that there may
have been a violation of either Article 5 or Article 6, it did
not reach the threshold under the case law of Ullah for
extradition proceedings although a violation may have been found
if that case had been a UK legal case, so whereas under old extradition
law, of course, we had very specific guarantees, in a way, those
have been bundled up and replaced by a generalist human rights
obligation, which, as we see in relation to the US cases, is often
quite ineffective.
Ms Bateman: Sally is more expert
on this than I am, but in terms of whether it is working, I think
the general consensus across the board is that it has improved
extradition processes and the arrest and surrender procedure is
much more efficient. In talking to practitioners who deal with
this, most I have contacted have said that more often than not—and
I think the statistics bear this out—an individual would
consent. The issue here, from our perspective, is whether that
consent is informed consent and given with legal representation
and legal advice. I would need to do a bit more research in terms
of whether that is actually the case, but that is one thing I
would flag up. To bring something to the attention of the Committee,
I do not know if you are aware that the Council of Ministers is
undertaking a peer review, so different Member States are assessing
each other in terms of the function of the European Arrest Warrant
and I believe the UK was assessed in early December. These documents
are not available to the public, but I think it is something that
your Committee would certainly be interested in. I think it was
run through the Home Office.
Chairman: We will see what we can find.
1 Cf Commons Hansard Ministerial Statements-Justice
and Home Affairs Council (4-5 December 2006), 18 Dec 2006: Column
124 WS: "A large majority of member states were in favour
of a binding instrument or prepared to be flexible. However, within
the majority there was disagreement on whether a binding text
should contain explicit derogations so as to protect national
law." The disagreement was therefore as to derogations rather
than types of safeguards. Back
2
Refers to the 2006 Finnish presidency. Back
3
Cf House of Commons Written Answers 4 Jul 2005: Column 129W-130W,
tables comparing USA requests with some other states; in some
years during 2000-first half 2005 there are more requests from
certain of these states that are European states than from the
USA. Back
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