Select Committee on Home Affairs Minutes of Evidence


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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