Examination of Witnesses (Questions 180-199)
MS SALLY
IRELAND AND
MS JULIA
BATEMAN
9 JANUARY 2007
Q180 Mrs Cryer: Could I briefly ask
you also whether or not you think there are likely to be any problems
relating to the adoption of the European Evidence Warrant?
Ms Bateman: Certainly, I think
that the European Evidence Warrant has not received enough attention
in terms of the impact which it will have on procedure and individual
rights and, indeed, changing the nature of cross-border investigation.
The text is almost finalised and I think it is due to be adopted
in April. One of the issues that we have is, as the text is drafted,
it is not clear whether the defence can make use of the European
Evidence Warrant. It talks about a competent judicial authority
and we understand from the Home Office that the UK will implement
it so as to allow defence counsel to make an application to the
competent judicial authority for the defence to issue an evidence
warrant for evidence in their favour, however because that specification
is not in the framework decision itself, it is not guaranteed
it will be implemented like that throughout the European Union.
To us, that is a major imbalance in the equality of arms and a
major imbalance in terms of citizens' rights in that sense. Equally,
the evidence warrant, as originally drafted, was about evidence
already gathered. The way it has been adopted, perhaps sensibly
from a law enforcement perspective, is that objects, data and
other items found at the scene when the evidence warrant is being
executed can also be included and also statements can be taken
from witnesses or individuals at the scene. We have had strong
concerns about that in terms of protection of self-incrimination
in terms of what that evidence will be used for. It does say in
the text that national procedural rules will apply in this instance
but, again, those procedural rules are not the same throughout
the European Union so we have some concerns about that.
Q181 Mrs Cryer: Did you want to say
anything about that?
Ms Ireland: No.
Q182 Mr Streeter: We touched on the
passerelle clauses briefly a moment ago and you will both be aware
of the concerns a number of people have about ceding national
sovereignty over to criminal justice policy and allowing us to
be overruled by QMV. In fact, surprisingly, if I may say so, Sally,
you hinted just now that perhaps you had your own concerns about
that because stuff might come through which we would not necessarily
want in this country. That is a slight surprise because up to
now I had been thinking that anything they dish out is fine; I
am being unfair. There is a desire, and I understand it though
I do not necessarily share it, to complete the European dream
and make it as harmonised as possible and so on, so you surprised
me in what you said and perhaps you would like to elaborate on
that. In this Committee we like practical examples. Have either
of you got any examples of first pillar measures which have been
forced through in the past against strong opposition under QMV?
Ms Bateman: I have been consulting
my colleagues who work in the internal market field and employment
on this and they say the political perspective in Brussels, the
European Union, is consensual and alliance-building because one
day you might have to have alliances on agriculture, the next
you might have to have alliances in competition. That sounds incredibly
naive, but in a way I do not think that the way the politics pans
out is not sidelining or alienating one Member State on a particular
issue, so it is a lot more built up on consensus and it rarely
ever goes to a crucial vote. The main example I think is the Working
Time Directive, which is a very big issue for the United Kingdom,
and the UK has maintained its position consistently in terms of
the opt-out—I say I am relying on a colleague's expertise
rather than my own—and, as far as I understand it, the UK
position is held strongly so that is representing and not undermining
UK employment and business interests. I would use that as an example
where we have not been undermined.
Q183 Chairman: Could I jump in, as
a former health minister, if that is okay. However, the thing
about the European Working Time Directive was that it was an acceptable
view of this country that it would not apply to doctors who were
resting and sleeping as part of their shift. It was only after
it had been agreed that a legal ruling was reached that it did
apply to doctors sleeping as part of their shift which has caused
immense pressures on the NHS, because what people had thought
was a 30 or 48-hour working week turned out to be a 70 or 96-hour
working week, so there are huge adjustments. There are examples,
are there not, where the thing was not forced through, but the
consequences for the UK were much more extensive than anticipated
at the time? Is that fair?
Ms Bateman: It is and I would
then question where the responsibility for determining those consequences
lies, whether it is with the European Union or with the government
position in negotiating that thing, if I may say that.
Chairman: It was not me!
Q184 Mr Streeter: The health minister
got it wrong again!
Ms Ireland: I cannot answer on
the practical side, but I would say that in any inter-governmental
forum where you have a process for negotiation and there are lots
of different kinds of proposals on the table, pragmatism will
tell us that there will be some scope for give and take between
nations and there may be good foreign policy reasons for going
with another nation on a proposal and not on another. That becomes
of enormous concern where that can lead to the adoption of a measure
which then the UK Parliament has no veto on essentially and so
that is one of the biggest problems, I think, with the QMV procedure.
Ms Bateman: In terms of the national
sovereignty issue that you have raised, I do think that the UK
and, indeed, Ireland are in a cleverly negotiated, privileged
position to be able to opt in or not to every single procedure.
It is not even opting in to a certain policy area, it is on every
particular proposal and the UK will have the opportunity three
months after the proposal is presented at the end of the negotiations.
Also what is little talked about is even if the UK and Ireland
have opted in to a proposal, they do not need to follow that through
right to the very end. After a certain amount of time, if it appears
that the Member States collectively cannot reach agreement, the
UK and/or Ireland can step back out of their opt-in, so there
are a number of occasions, I use the constitutional treaty term,
to slam on the emergency brake. The UK has an opportunity in the
beginning to make an assessment as negotiations commence and,
equally, if it does appear that national interest will be compromised
and sovereignty contravened then there is a get-out clause. That
takes a lot of the heat out of the problems of Qualified Majority
Voting and, indeed, some Member States are worried about codecision
with the European Parliament.
Ms Ireland: One example that I
can think of is in one of the German Government's documents about
their intentions as to the German Presidency. One of the priorities
that they do mention is combatting racism and xenophobia and within
that they include, for example, the denial of genocide perhaps
with racist intent. That is a kind of legislation that is in place
in many continental European nations. We do not have Holocaust
denial as an offence in this country and there is an Anglo-American
school of free speech thought which would advocate against criminalising
such conduct. If that measure has to go through the third pillar
then there is little chance of it becoming law in the UK. If it
has to go through the first pillar, then I hear what Julia says
about the opt-in but even so I think the danger is greater.
Q185 Mr Streeter: Let me come to
that issue of the opt-in. Certainly, Julia, it seems to be you
were suggesting that the loss of a national veto but still having
the opt-in right is as good as having the national veto. Are there
other considerations, for example? Is our voice not going to be
heard in negotiations and coming up with the directive in the
first place if we are not going to opt in or might not opt in?
Ms Bateman: I would concede that
having unanimity is the strongest way to safeguard national interest
and sovereignty. However, I do think that there is more concern
about losing political influence under the opt-in situation than
is perhaps necessary. The example I would use is in civil justice,
civil judicial co-operation. The UK has not opted in to Rome I
on contractual obligations as there was a lot of pressure from
the City of London that we would lose our global financial status.
The UK is playing a very strong negotiating role in the Council
of Ministers and, indeed, working with the European Parliament
and it appears to me politically that there are moves to make
the regulation look as palatable as possible to the UK for the
UK to opt in at the end. That is something that has come out in
the political process. I think the UK is a strong Member State
with powerful negotiating force and diplomatic capability, so
that does work as well within the opt-in situation.
Q186 Mr Clappison: Following on from
the point that Gary has correctly made there, I was quite surprised
to hear you say that you were in favour of the passerelle provisions
because I think you accept in your analysis it is very harmful
to national democracy and parliamentary democracy at a national
level and as part of your argument as to minimising that harm,
you rely upon the opt-in provision we have as well as the other
provisions. Following on from the point which Gary has made, we
have been very helpfully told of a comment which was made by a
former MEP, who I think was the leader of the Labour Groups in
the European Parliament, Wayne David, in a very recent debate.
He said: ". . . the passerelle would put the UK in a weaker
negotiating position because other Member States would not take
our position seriously unless we had decided to opt in".
It seems to me to follow from that we cannot place that much reliance
on the opting in because one could see a process very quickly
emerging of, "Well, we were told that we had to do without
the opt-in because we were losing influence generally as we were
not being taken seriously".
Ms Ireland: If I could clarify
from JUSTICE's perspective, we are not in favour of the passerelle
procedure and I do not know if I was talking about that before
you came into the meeting. Although we have very strong criticisms
of the limitations of the mutual recognition and the judicial
co-operation procedure, we also have strong criticisms of the
alternative under Qualified Majority Voting, so it really is a
question of which would be the lesser of two evils in that perspective.
Q187 Mr Clappison: The problems about
procedure could be met through unanimity.
Ms Ireland: There is an option,
I believe, within the transfer to the first pillar to have unanimity
alongside codecision[4]
which could represent the best of both worlds because you will
have a democratic input from the EP in addition to unanimity but
that will, of course, mean that the measures which have run into
trouble in the Justice and Home Affairs Council will continue
to run into trouble and find it difficult to be passed.
Ms Bateman: As you have seen from
the written evidence, The Law Society has supported the proposal
for activating the passerelle clause. This has been borne out
with the position we took on the constitutional treaty, that we
supported the abolition of the pillars because we thought there
was better accountability, democratic scrutiny and judicial oversight.
I think in terms of the passerelle clause, it is usually seen
as a European Commission conspiracy, when Member States themselves
in drafting, I think, the Maastricht Treaty put together the possibility
of the passerelle clause, so it has been in the mind of national
governments. It has just been activated in the debate because
of the fall of the constitutional treaty and the Commission's
Hague Programme "the way forward" document.
Q188 Mr Clappison: Could I come back
to you briefly on this. I may be wrong about this, but I do not
think it was in their minds. I am speaking from distant memory
here, but the passerelle was something which came with the Treaty
of Amsterdam and the possibility of something like this happening
was warned about at the time of the Maastricht negotiations by
those who were opposed to the Maastricht process. They were told,
"No, this will never happen because we are having this pillar
structure which is keeping the pillars quite separate". All
bearing out their criticism, I am afraid, without necessarily
endorsing them.
Ms Bateman: If I could follow
up with one more item on the QMV issue, you are asking for examples
here and I think the United Kingdom did very well under Qualified
Majority Voting for the Directive on data retention. This was
an issue under the UK Presidency that the then Home Secretary,
Charles Clarke, almost personally championed through the European
Union and, within that, certain Member States were against it—Ireland
and Slovakia have since taken a process to the European Court
of Justice—so when it suits the United Kingdom, the United
Kingdom has done well out of Qualified Majority Voting to further
its own political ambitions and legislative intentions. I do think
that the opt-in/opt-out has been a powerful, I hesitate to use
the word "compensation", but it is another tool to make
sure that national interests are defended.
Q189 Bob Russell: Can the legislative
process be improved and, if so, how?
Ms Bateman: By enacting the passerelle
procedure. No, I think the legislative process can be improved.
The role of the European Parliament is too minimal and the European
Parliament is the democratically elected institution within the
EU institutional structures. Also I think in terms of better regulation
and better law-making which was, again, the UK Presidency agenda,
that there should be better consultation, better impact assessment
and legislation, where necessary, which goes back to the Chairman's
comments about practical co-operation. If I give an example of
that, I do think that in terms of the passerelle procedure were
the Commission to have the sole right of initiative this would
limit the ad hoc patchwork presentation of legislative
initiatives and work a lot more in terms of The Hague Programme
and various action plans that justice ministers and heads of state
have compiled. Those would be some examples.
Q190 Bob Russell: Do you believe
that contradictory initiatives are proposed by different Member
States and the Commission to address the same problem?
Ms Bateman: I do not think they
are necessarily contradictory initiatives, but it is the time
which they are presented. As you know, the Tampere Conclusions
and The Hague Programme worked to a five-year timetable, whereas
Member States usually initiate a piece of legislation during their
six-month presidency that becomes top of the legislative agenda.
An example there is during the Greek Presidency, they presented
a proposal on the ne bis in idem. That is something that
needs to be addressed, double jeopardy issues for the individual
at European level, but that proposal fell because Member States
said, "Well, we need to address the issue of conflicts of
jurisdiction". The Commission was working on that at the
same time but had not yet completed its process in terms of presenting
the legislation, so it was premature for a Member State to initiate
something that was already identified and coming down the line.
Q191 Bob Russell: Following on from
that, would the abolition of Member State initiation proposals
under the first pillar be helpful or harmful?
Ms Bateman: I think it would be
helpful. The position The Law Society is taking is that the Commission,
as the sole initiator of legislation, would have a better overview
in terms of coherent justice policies in line with social policy,
external relations, broader security around the European Union,
but I also think because the agenda is set by ministers of the
Justice and Home Affairs Council, or in the Tampere Conclusions
and The Hague Programme there is political direction from the
national governments to what the European Commission could do.
Q192 Bob Russell: You are saying
that national governments, the 27 Member States, would still have
the capacity to initiate proposals?
Ms Bateman: They would not have
the capacity.
Q193 Bob Russell: Would or would
not?
Ms Bateman: They would not. Certainly
under the passerelle, they would not have the capacity to initiate,
but they could politically influence the agenda in terms of what
the Commission could do.
Q194 Chairman: Does that not mean,
though, that Charles Clarke's success on data retention would
not have happened?
Ms Bateman: It depends whether
the Member States have determined under the next Hague Programme
that a directive on data retention should be published by the
Commission and adopted by the Member States. The Member States
will dictate to the European Commission what proposals should
be on the table.
Q195 Bob Russell: This is very interesting
ground because you seem to be, not suggesting, actually stating
that Member States' involvement should be reduced, if not abolished.
Ms Bateman: I think in terms of
initiating legislation for a coherent strategy and policy the
European Commission should be the sole initiator of legislation.
Q196 Mr Winnick: Civil servants instead
of politicians.
Ms Bateman: It would not be civil
servants or politicians. It would be the democratically elected
ministers of the national governments who are setting the agenda.
Q197 Bob Russell: Do you feel the
Commission has adequate evaluation mechanisms to determine whether
new legislation, or indeed action, is really needed in the EU
level?
Ms Bateman: No, and this is something
if the Commission was to have the sole right of initiative should
certainly be improved. The Commission is under an obligation to
conduct impact assessments. In practice and policy, they are certainly
getting better at consulting with stakeholders and involving Member
States earlier, but one thing I would say as well is the nationally-initiated
Member State initiatives are not subject to regulatory impact
assessments whereas the Commission's are.
Q198 Bob Russell: My final question
is to Ms Ireland. How much input do NGOs and lawyers associations
have into the drafting of EU measures in criminal law and is sufficient
regard given to expert opinion?
Ms Ireland: The first issue I
would like to mention here is one of transparency. "Transparency"
is a term which comes up a lot in relation to the European Union,
but certainly, as an NGO, we find it a lot easier to find out
what is going on in this Parliament and to participate in the
consultation process than at a European level. Websites, for example,
which in the modern age are one of our chief sources of information,
are often out of date and it is difficult. We have built up a
network of contacts, including contacts within the Commission,
which helps us to become alerted to things as they go on and we
have contacts with colleagues, like Julia, who are based in Brussels
full-time and so that is very helpful. In terms of the drafting
of legislation, I have only been engaged in this area for a short
time, but generally we would become involved when there was already
a Commission proposal for a framework decision which would then
go to the Council or if the Commission produces a Green Paper.
Those are the stages at which we could become involved. In a sense,
I suppose, they mimic the stages of the Bill and consultation
paper in a domestic system, but it is certainly easier to engage
in the domestic system than at the European level. One of the
problems is that by the time we get to a domestic consultation,
the Home Office would have of course issued consultations on a
paper, often it may be too far down the line. I would have to
check what the dates are.
Q199 Mr Winnick: On the question
of the Commission, perhaps it was the way I put it, yes, the ministers
make up the Commission, but obviously they are fully supported
by the Secretariat and the Civil Service. You see here The Law
Society says: ". . . bring forward legislative proposals
should put an end to proposals based purely on domestic priorities,
and prevent knee-jerk political reactions . . .", so it does
seem to me that the way in which you have put the point emphasises
the need for less political involvement and hence the transfer
from the Member State to the European Commission.
Ms Bateman: Certainly that reference
to knee-jerk domestic political reactions was in terms of one
Member State making a European Union legislative proposal purely
on their domestic interest rather than the collective interest
of the EU 27 now. Certainly, I used the Greek proposal, also there
was a Danish proposal in terms of corruption whereas the European
Commission had been developing legislation in that field. During
the Spanish Presidency there was a lot of focus on terrorism,
now that is something all the EU Member States signed up to, but
that was specifically focused on the protection of public personnel
which is perhaps not particularly a Spanish issue but certainly
one that was occupying their domestic agenda at the time, so those
would be examples that I would use. We must always bear in mind
that even if the Commission, the Civil Service, presents the legislation
it is the Council with, or in consultation with, the European
Parliament which adopts and enacts the legislation so that is,
again, the end result of that.
4 This is arguable: it is not clear what the term
`voting conditions' in Art 42 TEU means. Back
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