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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 76-iii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HOME AFFAIRS COMMITTEE
JUSTICE AND HOME AFFAIRS ISSUES AT EUROPEAN UNION LEVEL
Tuesday 9 January 2007 CHIEF CONSTABLE PAUL KERNAGHAN CBE, QPM, SUPERINTENDENT MIKE FLYNN, MR M QUILLE, MR BILL HUGHES and MR ROB WAINWRIGHT MS SALLY IRELAND and MS JULIA BATEMAN Evidence heard in Public Questions 114 - 205
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs Committee on Tuesday 9 January 2007 Members present Mr John Denham, in the Chair Mr Richard Benyon Mr James Clappison Mrs Ann Cryer Mrs Janet Dean Gwyn Prosser Bob Russell Mr Gary Streeter Mr David Winnick ________________ Memoranda submitted by the Association of Chief Police Officers and the Serious Organised Crime Agency
Examination of Witnesses
Witnesses: Chief Constable Paul Kernaghan CBE, QPM, (lead for International Affairs) and Superintendent Mike Flynn, Director, Joint Operational Authority, Association of Chief Police Officers (ACPO); Mr Michel Quille, Deputy Director, Corporate Governance Department, European Police Office (Europol); Mr Bill Hughes, Director-General and Mr Rob Wainwright Deputy Director, International Directorate, Serious Organised Crime Agency (SOCA), gave evidence. Q114 Chairman: Good morning, may I thank you for coming to give evidence to us this morning as part of our inquiry into the relationship between various European Union issues and justice and home affairs issues in this country. I think the Committee are looking forward to your evidence this morning. We are about half way through our inquiry and, without pre-judging the report, it is fair to say we have had a lot of discussion about some fairly conceptual issues about mutual recognition in the European Union and harmonisation of legislation and so on. To some extent it is obvious that the debates we have listened to so far in the inquiry are driven, in part at least, by the approach that people take to much bigger debates about what sort of European Union we want and their conceptual and intellectual approaches to the debate. This morning's sessions give us the chance I think to hear from people who are in the frontline of trying to tackle crime in the European Union, and also to keep our citizens secure. We are very interested in the perspective you have as senior operational people in delivering for the citizens of this country and for others in Europe. What I would like to do is to ask each of you to introduce yourselves for the record and then we will begin the questioning. I shall start from my right-hand side and go to the left. Superintendent Flynn: I am Superintendent Mike Flynn from Sussex Police. I work for the Association of Chief Police Officers International Affairs, to do with changes to business processes brought about by the introduction of the Schengen Information System. Chief Constable Kernaghan: My name is Paul Kernaghan. I am the Chief Constable of Hampshire Constabulary, and also lead for the Association of Chief Police Officers in respect of International Affairs. Mr Quille: I am Michel Quille. I am Deputy Director of Europol and I am the Commissaire Divisionnaire of the French National Police. Mr Hughes: Bill Hughes. I am the Director-General of the Serious Organised Crime Agency, responsible since 1 April last year for dealing with serious organised crime in the UK, and dealing with international relationships on behalf of law enforcement in the UK. Mr Wainwright: Rob Wainwright. I am a Deputy Director in the Serious Organised Crime Agency responsible for running the International Department of our Agency. Q115 Chairman: May I start by saying that where there is more than one of you from one organisation I will leave it to yourselves to decide who should reply. Starting with a general question: as we look at policing in the UK and EU there seems to be a huge range of different places where police forces come together. We have groups that come together to look at cross-Channel issues; there are traffic policing groups coming together; we have the Police Chiefs Task Force; we have Europol; and we have European Union institutions like CEPOL as well. There does seem to be a whole host of different arrangements for policing cooperation across the European Union countries. The question I would start with is: how do you actually ensure that these many different arrangements are not duplicating, contradicting or undermining each other, and they are actually working together as effectively as possible? Chief Constable Kernaghan: I recognise the picture you paint, Chairman. I think we try and do a pragmatic approach. You indicated TISPOL, the European traffic network; that is represented by my colleagues on road policing from ACPO. Europol, as you will hear from Bill in a few minutes, very much takes the lead on that. CEPOL is the training; and CENTREX which is the national training body; and our colleagues from ACPO in Scotland interact with CEPOL. We try to take it on a pragmatic basis. I think one thing I would say is that SOCA provides a one-stop facility in respect of serious organised crime, a bespoke agency which, again, Bill will flesh out; but we lack a one-stop shop for the other police functions. As you are aware, we lack a central police body, a core of staff, and that does cause problems. Who represents us on certain bodies: historically I know Bill used to represent us at the Police Chief Task Force. Primarily most of their workload will be serious organised crime; it makes a lot of sense; but occasionally they may have a police function as such. Bill would recognise that SOCA is not a police agency. Our approach to date has been pragmatic but I think we would be in a stronger position if we had a single body in the UK that dealt with the non-serious organised crime side. I think Bill may have a view on that. Q116 Chairman: Just to draw you out a little on that - obviously there are a huge range of crimes that fall outside SOCA, but what are the sorts of crimes that are not covered by SOCA that give you most concern that have an obvious European dimension, where that sort of cooperation is likely to be most important? Chief Constable Kernaghan: If we go into it in depth you will hear about it in terms of systems in Schengen etc, but SOCA does not have a role, for instance, in respect of murder, or in respect of a single paedophile etc. That is incredibly important information which is exchanged between all the police forces of the European Union. There is lots of serious crime which is not serious organised crime. It is not the raison d'être but it is what I would call day-to-day bread and butter policing which engages all 51 territorial forces of the UK. Mr Hughes: I think Paul is absolutely right. I do still represent the UK on the European Police Chiefs Task Force. The pragmatic solution is that I keep Paul involved where there are issues to do with general policy, functions that come up there; but, as he says, most of the work ongoing in the Police Chiefs Task Force concerns serious organised crime. There is a police cooperation working group that operates in Brussels as well as the EU, which looks at the type of work that Paul was referring to. Again, there are UK representatives on that. The point Paul is making is absolutely right, there needs to be something which covers the more general policing functions that need to be carried on. What SOCA does, where we can, we try to assist of course, but it is not within our remit and it is really important that ACPO and ACPOS in Scotland are represented in dealing with the other countries, particularly within the EU. What we also have of course within SOCA, and I know this is primarily concerned with Europe, of course we also pick up the international liaison officer network; we have inherited that from Customs with their drug liaison officers, from NSIS, the National Security Intelligence Service, with their overseas crime liaison officers; and Rob runs all of that network which extends across almost 40 countries now, with officers based in those countries operating on behalf of the UK, not just on behalf of SOCA. They are also there to assist in whatever they can. We also have good working relationships within the EU. We have great cooperation particularly around the CPS liaison magistrates that are based in Madrid, Paris and Rome which helps enormously, particularly when dealing with some of the harmonisation issues. In terms of policing I think it is still the point that Paul is making - there needs to be some general policing function. Q117 Chairman: Mr Quille, your organisation is relatively new and it comes into what seems to be quite a crowded field of European police cooperation. How do you ensure that the work of Europol is adding to the existing cooperation and not simply adding another layer of activity which is duplicating what was already there? Mr Quille: Chairman, I understand very well your concern. You ask if Europol tries to avoid duplication of efforts and we have found that the case with Interpol mainly and we are always trying to give an added value to investigation. The helm of Europol is to support investigation conducted in the Member States. For that we use tools that are not available in other organisations. We have special database analytical work files. We have special databases dedicated to certain types of crime: drug trafficking; trafficking in human beings, but very targeted. No-one from other organisations has the same tool so for that we avoid duplication. Also we avoid duplication with having cooperation agreements with other organisations. With Interpol for example we have a cooperation agreement - but not only that. We have a liaison officer from Europol to Interpol, and from Interpol to Europol, so we are constantly looking to avoid duplication. Q118 Chairman: There are a number of issues in your answer that we will come back to. A final question from me at this stage to Mr Hughes. We have learnt from the ACPO submission that your organisation provides coordinated access to Schengen, Europol and Interpol for UK policing. Could you just explain briefly how that coordination process works? Mr Hughes: We have officers based at Europol as Michel has already explained. We have officers who are placed in all of the EU countries. We have a national responsibility for running the Schengen information system working with that and the Syreen Bureau(?). We have a statutory responsibility under the Act that set us up to support UK law enforcement and law enforcement agencies in other countries; and that means our international division is responsible for the coordination of that UK interface with Interpol, Europol and the Schengen systems. We deal with European Arrest Warrant requests; and areas of mutual legal assistance come to us, all of those areas; and that is the work we perform on behalf of UK law enforcement generally, not just the Police Service, of course, but also HM Revenue and Customs and other agencies responsible for dealing with law enforcement. Rob can give you more details on the type of work that we do if you want it in a bit more detail. Q119 Chairman: What might be quite useful for the Committee is, not too much detail, to pick a typical operation for the Committee because I think we are interested in the practical work of fighting crime. Can you give the sort of case that would require SOCA to play that coordinating role and relate to Schengen or Europol? Mr Hughes: There are a couple of recent examples. Operation Blue Sky was one that was an international investigation into Turkish organised immigration crime. It was led by the Metropolitan Police Service in the UK but it was supported both by SOCA and Europol. Europol acted as the conduit in terms of the investigation between the United Kingdom, the Netherlands, France, Belgium and Germany with exchange of real-time intelligence. This operation resulted in multiple arrests and convictions and the dismantling of an organised immigration crime network right across Europe. That is a recent example. Also, for example, we are tasked with leading on Article 40 cross-border surveillance work under the Schengen arrangement. One of the operations we did recently was an operation called Flamage(?), which is an ongoing operation involving the smuggling of Class A drugs through Europe into the UK. So far we have facilitated numerous outbound Article 40 requests for international surveillance of the main targets in Holland and Spain. So far intelligence we have got from the surveillance has led to the seizure of 50 kilos of cocaine and arrests in the United Kingdom, and it is an ongoing operation which we are still working on with Spanish and Dutch colleagues. Q120 Chairman: Outbound is where we request another agency in Europe to do work because we have identified people? Mr Hughes: It also means that our officers can go abroad and work with them as well. Q121 Mr Streeter: A question to ACPO and SOCA particularly. In your written evidence you have talked about the practical cooperation you have with other Member States and organisations within Member States, and again you mentioned that this morning. Do you consider these informal practical cooperation arrangements give you sufficient powers to go about your duties, or are more required? Mr Hughes: The issue that concerns us is that we are quite successful when we work in intergovernmental cooperation, bilateral arrangements with other countries. Bilateral, sometimes multilateral, working in small groups and small working arrangements we can get on and achieve a considerable amount. There is a danger all the time of creating structures to deal with all the known or unknown circumstances that could arise and are generally not in favour of that type of approach. It seems to work quite well. The issue of harmonisation across the laws in the EU, of course, often comes into play here. This is why we need agencies like Europol and Eurojust, which enables us to work very effectively to try and work around other countries in terms of dealing with their legal and legislative background. In that regard I do not see that is necessarily a major problem. The point that Paul is making, and I am sure he will come back to, about having some form of proper interaction for police forces in the UK is probably something you will want to touch on. Q122 Mr Streeter: Do your computer systems talk to each other? Mr Hughes: Within the SOCA Act that set us up, we have the ability to share data through gateways with other people who can assist us in our remit but what we seek to do at the moment is to do that through Europol and the analytical working files that Michel has referred to, so there is a common understanding and a common area for dealing with data protection issues at the present time through the Europol offices. Chief Constable Kernaghan: My view is, yes, there is very good formal cooperation between "police forces" but, as Bill quite rightly says, it also encompasses law enforcement agencies. Police force to police force both on an individual and corporate level there is good cooperation. I think it is very important we should not be allowed to run riot and do our own thing. We need the law to tell us what the limits are and, equally, to ensure the cooperation can be translated into evidence we can place before the courts both in the United Kingdom and elsewhere in the EU. There is good professional cooperation but I think on certain occasions it is very important that there are treaties and protocols signed up between member States to ensure that police work can be translated into evidence before a court to secure a conviction, because that is ultimately why the police exist - to secure convictions and to protect the public. A good example would be the protocol that has set up joint investigation teams which enables police forces very openly and publicly to send an officer to another jurisdiction, and for that individual to participate in the investigation. I conjure up the scenario ten years ago when you might have had an interview and there might have been an individual in the room whom everybody would not have named frankly through hesitancy etc. Now we are quite happy to say, "The third officer in the interview room is a senior Spanish officer, senior French officer, senior German officer", because that reciprocates with our European colleagues and that is important. We do need a framework. In terms of computer systems, the one which I think will have the biggest impact as and when it actually goes live in the UK is the Schengen Information System, whereby someone who is wanted in Germany will be circulated throughout the whole of the EU, including the UK, and vice-versa. That means when someone is stopped and checked in a street, say, in Winchester and they are wanted for a serious offence in Berlin they can be arrested and subsequently extradited to Germany. That is about public safety and that, I think, is a huge step forward as and when Schengen goes live in the UK. Q123 Mr Streeter: A quick question on the European Arrest Warrant. It has been said that that could not have been achieved just by cooperation but did require legislation. Are there other areas you can think of where measures could only really be effectively brought in by legislation? Chief Constable Kernaghan: I think legislation or agreement between governments; but, yes, I think the European Arrest Warrant is a potentially huge step forward. Equally we would like to see agreement, and it could be agreement perhaps as opposed to an Act of Parliament in the UK, that information supplied to the UK it is always accompanied by fingerprints etc. We need to identify people. If there was a uniformity, a consistency of approach throughout the EU in terms of identification et cetera, that is a practical step forward. Mr Hughes: Could I just come back on that because there are a couple of issues. Some of the problems we have around the sharing of intelligence are that in some jurisdictions in Europe the sharing of intelligence about a case can only be done at the end of the investigation with the approval of the examining magistrate or lead prosecutor. That can sometimes reduce our ability to get ongoing practical intelligence together. I know that is a problem for Europol as well. Just touching on the European Arrest Warrant - I think we have to be very mindful of the changes that will come when we are part of the Schengen Information System; because at the present time we receive probably around 5,000 requests a year from Member States; that is going to increase significantly, and we are not resourced properly to deal with that. At the moment there are 17,000 alerts on the SIS which require UK validation. All of this will mean an increased workload, and we need to pick that up. There are issues around making what is working now work better, rather than necessarily looking for better legislation or new legislation. Q124 Mr Streeter: Are you expecting a huge jump in workload following 1 January this year with two new countries coming in? Mr Hughes: Not so far. Mr Wainwright: No, a modest increase, I think. Chief Constable Kernaghan: I would expect a huge increase as and when people are checked coming into the UK, or even leaving the UK, against the Schengen database agreement in our own border controls. Actually it is linked to the Schengen EAW database and that is when we will have a huge increase. Building on Bill's point, at the moment extraditions are relatively rare events. It is done in a somewhat historic fashion et cetera. We will require extra resources, as will the Crown Prosecution Service to effectively process a huge increase in European Arrest Warrants. Q125 Chairman: You used a phrase that "there are 17,000 alerts which require UK validation", or something like that. Could you explain what that is in layman's terms? Where are these alerts, and what does "validation" mean? Mr Wainwright: These alerts are stored on the Schengen Information System by those countries which are already members of that information system, which at the moment of course does not include the UK. When the UK becomes a member of SIS it will have the obligation therefore to effect those alerts and to bring them onto the UK database, and that will require a substantial amount of processing in terms of backdating the work involved and getting those alerts on. Also on a day-to-day basis it will greatly increase the amount of work we are handling and turning over as more and more alerts come on. Q126 Chairman: "An alert" means what? Mr Wainwright: An alert is simply a flag on a system that an individual, a motor vehicle or another item is wanted by a police force in certain jurisdictions. Q127 Chairman: It is actually wanted? Mr Wainwright: Yes. Q128 Chairman: It is not a suspicion but actually wanted? Mr Wainwright: It can be both, I think. Superintendent Flynn: The types of alerts that are there, which Rob has described, are for: extraditions; missing persons; a locate/trace for judicial purposes for the courts, and that is for witnesses and for people to appear before the courts, but that is just a locate/trace; discreet information reports on travelling serious criminals and threats to state security; and then the property alerts, which are things like stolen vehicles and stolen passports. Q129 Mr Streeter: A final question from me, which we have slightly touched upon, but to each of the organisations present. What gaps have you identified in the current systems of effective police cooperation throughout the EU, and what would you like us or other organisations to do about it? Chief Constable Kernaghan: I go back to my previous answer - identification. I think we need to have standard identification; and, equally, the next step would be that criminal records should be shared. I am very conscious that the Treaty is moving in the right direction, but I would like, firstly, the standard identification of individuals and, secondly, automatic sharing of criminal records throughout the EU. Mr Hughes: I would echo that. I think the principle of availability that is writ large in the EU is large. This is the principle that police officers, law enforcement officers, should have the data available to them wherever they are - available to them in order to be able to improve the way they do their business. We should be finding every way in which we can make that work more effectively. Mr Wainwright: Perhaps I would just go back to the Chairman's opening comments that this already is a crowded playing field. We do not necessarily need more agencies, more institutions, or even more legislation actually. If anything, we need to streamline the current arrangements and make better use of what, in many respects, are significant capabilities that are already out there. Europol already represents the single mechanism within the EU to coordinate Member States' response against serious and organised crime across the Union. We would encourage all Member States to make the best use of that organisation, and use that as the single method of coordinating our work. It does work effectively in many cases. I am not sure that its potential has yet been fully realised. Q130 Chairman: Do you agree with Mr Kernaghan's priority list? Are there other things you would prioritise from Europol? Mr Quille: No, for Europol, as was mentioned by Rob Wainwright previously, we have to use the full potential of Europol. We have some Member States (and it is not my task to deliver bad or good scores) who do not use the full potential of Europol. Our fight in Europol is to try to convince all Member States to use Europol. I referred to the use of the Information System - we have very efficient tools that are the beginning of the usefulness. We have to convince Member States to send information, but to send living information. We are talking about operational police cooperation and that is based on living information. The information coming from the past is not very useful. So there is work to do. If I can resume, we have to increase the awareness of Europol. As mentioned previously by Rob Wainwright, we have to deliver permanent awareness. I think it is the first step to having real operational cooperation in the field of the police. Q131 Bob Russell: Chairman, I wonder if I could continue the question you have just put to Europol. Do all 27 EU Member States contribute the same degree of information to Europol, and who are the bad guys? Mr Quille: I can deliver good or bad cop; but you are right all the Member States do not have the same level of application in Europol. Some Member States do not have the structure to send information. The first step for the Member State is to gather the information; for example, to gather the information coming from Customs. In some Member States Customs are not linked with the fight against organised crime. The first step is to have a good structure; and, here I come back with my previous intervention, to give the information to the police officers in the field, and to know Europol. If they do not know Europol they will not send the information. There is a very different situation between Member States. The role of Europol, as mentioned previously, is to give that role. It is hard work but we begin with that kind of work. Q132 Bob Russell: You have clearly made the point that there are difficulties with some countries. Does that mean that your work from those countries is then made impossible; or can it be resolved? Mr Quille: No, I do not think it is impossible. We have ten new countries in Europol (12 now) and we have different degrees. Some of them are very advanced, and they have very structured organisations; and some others do not. It is up to Europol to give the information. We have two steps: there is the political level with the justice and home affairs ministers, and the technical impetus given by Europol. Q133 Bob Russell: Trying to get the 27 Member States to sing from the same song sheet is clearly difficult; but what happens when organised crime involves people in Switzerland and Norway? How do you deal with it then? Mr Quille: We are very conscious if there are trends or cases of organised crime in Switzerland or Norway they can impact on the European Union, so we have operational cooperation agreements with Switzerland and Norway. In our cooperation agreements it is possible to exchange data, but personal data. We can exchange and we can be very effective. Q134 Bob Russell: How close is Europol's relations pan-European with Interpol and indeed worldwide with Interpol? Mr Quille: As I mentioned previously, with Interpol we began in a very bad situation, because there was permanent duplication of efforts. I am a police officer so I try to tell the truth! We checked that Interpol was beginning crime analysis in a certain month and Europol tried to do the same thing. We set in place an operational cooperation agreement. In our agreement we tried to avoid duplication. We have daily work because we have liaison officers from Europol to Interpol and from Interpol to Europol. Every day we look to avoid duplication. Q135 Bob Russell: If I could just put a simple question to both ACPO and SOCA. We have obviously established it is a crowded playing field there. Is cooperation from the European partners always forthcoming to the degree you would wish? Chief Constable Kernaghan: Speaking from my perspective, most requests are going to go via SOCA so Bill can obviously respect that: but I have to say commanding a large force in Hampshire, we have no problems with any European colleagues on an operational basis and we seek to provide a reciprocal service to them when there is an inquiry which brings to them to Hampshire. I am not aware of any difficulty cooperating with colleagues on the Continent. Mr Hughes: From our position that is exactly the case. If I could just add to some of the points made about Europol: one of the advantages now that we have is during the UK Presidency Europol brought in what they now call their Organised Crimes Threat Assessment, which gives a very, very accurate picture in real-time of what is happening within the European Union and the threats to the European Union - the countries and Member States - from organised crime, and that includes the point you are making about from outside the European Union, so how can we work together to deal with those issues. That also uses the European Crime Intelligence model, which is based on the National Intelligence model we use in the UK, which enables us to find ways of dealing with those particular threats. The analytical working files which Michel referred to, there are 18 of those which cover a wide spectrum of organised crime. The UK participates in 15 of those, and we are just about to participate in the sixteenth. I am not going to get into who are the bad guys and who are the good guys, but you would expect me to say that we are one of the good guys because we work with Europol and with Interpol and we support what they are doing. We have a very large contingent at Europol and we see Europol as the right way. What we see is not necessarily the need to tinker when Europol increases its mandate; but to make better what it already does pretty well, and make it better for the future. Q136 Bob Russell: Do you think that Europol should take on further powers or responsibilities? I note the earlier answer that you do not want any more legislation, but do you think Europol should take on further powers and responsibilities? Mr Hughes: I do not think so. I think they have sufficient at the present time. You need to make them work better. Chief Constable Kernaghan: I would echo that. It should be very much about, what are the police forces concerned with; and they should cooperate. Europol provides support, but I do not see them taking the lead. Q137 Bob Russell: My very last question is to Europol. I understand that the changes to the Europol protocol give you an expanded role, but you do not have any power, do you, to compel action. Are you a toothless tiger? Mr Quille: No. Europol does not need quasi power. As mentioned previously we have to stabilise our work, and not to expand too much. The question is not the crucial question. We are in charge of the support of the living investigation of the Member State, so we need to do our best but without coercing. It is not useful; it is not the question; and, for the moment, we have to develop our support for the Member State only. Q138 Chairman: Can I pursue a point to make sure I have understood something. Mr Kernaghan, if I understood it right earlier you were saying there may be a case for a better European Union Centre of Cooperation, or a clearing house or something for things like murder investigations, paedophile investigations that are not covered by SOCA, are not properly covered by Europol? That is if I understood your earlier answer. Chief Constable Kernaghan: No. Q139 Chairman: In which case, if it is not an expanded Europol taking on that role, what is it you are actually seeking that is missing? We understand what you are saying about identification powers and so on, but I understood you to be talking about other types of cross-border investigation? Chief Constable Kernaghan: No, what I was saying was purely at the domestic level. Those agencies provide a superb interface with Europe and Europol in terms of serious organised crime. I am simply saying on more mainstream policing we lack a single point of contact. The Information Systems play a large part in filling that void. Once we have got Schengen we will have information flowing freely between all the forces of the European Union. I am also just making the point that, if we leave it to wider agenda, it would be helpful if we had a single body or agency dealing with generic police cooperation, as opposed to the specialist area that Bill leads. Q140 Chairman: That is a UK issue? Chief Constable Kernaghan: Yes. Q141 Chairman: Presumably that similar type of issue arises in many other EU Member States that also have different patterns of policing; it may not be regional or county as ours is, but is split between national police forces, local police forces or whatever? Chief Constable Kernaghan: Yes, but with one great exception (and I stand to be corrected because I am not an expert in every police structure in the EU), they either have a national force or they have a force designated to take the national lead. The best example I can give akin to the United Kingdom is the Netherlands; that has, I believe, 25 territorial forces, ranging from large to small, but they have one national police agency which literally deals with any function that a territorial force neither wishes to or is not resourced to. That is the difference from us. Our French colleagues obviously have both the Police Nationale and the Gendarmerie, both of which are national bodies, and they allocate functions between them. We lack that capability now. I think we are fairly unique in saying that. Q142 Gwyn Prosser: I want to ask you about the European Arrest Warrant. We have heard some case studies of UK nationals who have been arrested and convicted in other European states and received not the sort of behaviour, judicial oversight that we would expect in this country. ACPO have said that the European Arrest Warrant "minimises the opportunity for drawn-out legal argument". Are you confident that the police and judicial systems in other Member States are sufficiently robust that there is no need to have the facility to probe and investigate some cases? Chief Constable Kernaghan: Can I say, with the greatest respect, that is ultimately a political question. With Country X is their judiciary, are their police, up to what we would consider acceptable standards? I would have to say it is a matter for HMG and the Foreign and Commonwealth Office. We operate under the treaties. They are fellow Member States. If we had reservations that would come up through the particular investigative route and we would report it to the Home Office, to the Foreign and Commonwealth Office. I have to say, if Parliament decides that we should be a fellow Member State, we will operate in good faith with that country. It is not the role of the police to pass judgment on the judicial process. There are obviously other bodies that are better placed to pass judgment in respect of that. My perspective is, someone should go and answer a charge in a fellow European Member State as quickly as possible to prove their innocence, if they are innocent; to secure conviction if they are guilty. As I say, we obviously would not close our eyes in any way to malpractice, but I do not think it is primarily the role of the Police Service to pass judgment on other countries' judicial processes. Q143 Gwyn Prosser: You have said if cases come up which cause you concern you will report them up the line to the Home Office. To what extent do you have to do that, or have you done that since the Warrant has been in place? Chief Constable Kernaghan: I am not aware - and it may be something Bill can supplement - but we would take it as part of our professional ethical code that we would never wish to see anyone, whether they are a British citizen or not, subjected to inappropriate judicial process. If we became aware of it we would flag it up; but I do stress, ultimately political judgments are for other people. Q144 Gwyn Prosser: Mr Hughes, have you got any views? Mr Hughes: I was just checking with Rob whether we had any queries on that at all, and we have not. The issue you raise is a very pertinent one and I think Paul's answer is absolutely spot-on. The only thing I would add is that it would be useful, I think, if across Europe there were some common stand-around procedural matters about something along the lines of what we expect in this country from the Police and Criminal Evidence Act, those types of caveats that apply to anybody held in custody in the United Kingdom. That is a political matter that needs to be resolved through the EU, and that would probably be something that would be welcomed by everybody, including law enforcement. It is not an issue that we would fall out over. I think the European Arrest Warrant has probably been one of the most effective changes in terms of speeding up the process. I think Paul is absolutely right: these long, drawn-out processes whereby people wait for years to be extradited are in nobody's best interest - particularly the people waiting of course. I have an example of where just recently it has worked very well. Within two days of the transmission of a European Arrest Warrant to Spain, where a man convicted of murder escaped from prison in the United Kingdom this last year fled and to Spain, within two days he was apprehended and brought back to the UK. It is a very fast means of operating - certainly different from how we all experienced it in the past. I think it is something we should benefit and profit from and make better, rather than the worry there might be that people will not use it if the procedural rights are not guaranteed for offenders in other countries. Q145 Gwyn Prosser: This might spill over and be political as well but I would like your view. We understand the draft framework to provide minimum procedural rights, like legal advice and interpretation services et cetera, has been stalled and no decisions have been taken by the European Commission. How necessary are minimum procedural rights as an accompaniment to the European Arrest Warrant and European Evidence Warrant, would you say? Chief Constable Kernaghan: I would say, firstly, desirable; but, secondly, if those rights automatically apply in the United Kingdom, and if someone is brought back to face a court back in the United Kingdom I have no doubt that the judiciary would scrutinise the process of their arrest and interview and any evidence that was going to be tendered in a British court, and if it did not meet the highest standards of the domestic courts it would be rejected. I am very clear about that. Bill's point is very valid - we would always want people to be afforded full rights. I am very conscious in most of Continental Europe they have an investigative system, magistrates as opposed to our own system; but, no, I would want the highest standards. How that is arrived at, yes, is a matter for European cooperation. I am very clear, on my professional experience there are courts which always scrutinise and ensure that people before the British courts are afforded full rights. Q146 Gwyn Prosser: Can we take it that is supported by all of you? Mr Hughes: Yes. Q147 Chairman: We have had some evidence from NGOs about individual cases of British citizens who have not had the best of treatment, they claim, in other European countries. It is theoretically possible at least, Mr Kernaghan, that one of your officers might at some point need to arrest one of my constituents and send them to another European country in response to a European Arrest Warrant where they might professionally feel quite unhappy about the procedure that had been followed in that other country. The European Arrest Warrant was driven on the back of a big political impetus to get this in place. Are you confident that there is sufficient monitoring of what is actually happening in individual cases across Europe, so that if there were individual cases of injustice that they would be flagged up very, very quickly and the politicians, including ourselves, could be forced to address these issues, rather than just to assume it is working well - which it is obviously doing in the vast majority of cases? Chief Constable Kernaghan: The European Arrest Warrant transmitted to the UK has to be validated in the UK, I think I am right in saying. If it was for, shall we say, an offence for showing disrespect to the head of state, there is a chance there for Britain to say, "We deprecate disrespect to the head of state but it is not a criminal offence that we wish to be party to". The person, with legal representation in the UK, can say, "I shouldn't be extradited". They have recourse to the courts. Indeed, citizens always have recourse to the courts if they feel there is an abusive process and abuse by the police. When they are handed over to a Continental country, yes, at that stage as I understand it, one, the protection would primarily become the responsibility of the Foreign and Commonwealth Office and the consular services. I think I am right in saying all European countries there is recourse to the media. I am sure it would not be one of your constituents, but if they did end up in a European Court, they would have recourse to the media; they would have recourse to the legal protections of that country; and I would hope the FCO would have its own views on the legal processes; plus the NGOs, Justice Abroad et cetera, who are quite vigilant in ensuring people get a fair track of the whip. Q148 Chairman: Are these issues actively discussed by operational police officers across Europe? Chief Constable Kernaghan: I think the honest answer to that is no. We will ensure that our standards are adhered to and we work on the basis that our colleagues are entitled to mutual professional respect unless we find something to the contrary. Mr Hughes: It is certainly the case that European Arrest Warrant cases take longer from the UK to other countries because there are caveats that people have to run through, particularly at Bow Street in terms of checking on the legislation that applies and the procedures that have been gone through, so they certainly take longer from the UK abroad. I do not know whether we take more care over it but certainly there are those procedural caveats in place in the UK at least. Mr Wainwright: What we find from our experience is a good deal of confidence from dealing with our European partners. We are dealing with very responsible professional police organisations around Europe and the standard of policing, particularly in countering organised crime in Europe, in global terms is very, very high. From that professional level we have confidence in our colleagues in the way in which they implement their work and implement these standards around Europe. We also have confidence in the stringent tests that are applied through the EU mechanism before the admission of new EU Member States. Although I guess the law of averages will dictate that there will be one or two isolated examples, we have not seen any yet and they would fall into a very, very small number of cases. Q149 Mrs Dean: Mr Kernaghan, ACPO have identified two problems with the UK central authority for exchange of criminal records, the first one being that information beyond court results is not available quickly and secondly, that only basic information on UK nationals convicted elsewhere in the EU is transmitted to the UK. Is there a real danger that serious offenders could enter the UK without the UK authorities being aware of their record? What can be done to tackle that problem? Chief Constable Kernaghan: If I can take it sequentially. Until the ACPO criminal records office was created to support European legislation, and let us use an emotional but I think it is a very valid example, someone could go to, let us say, Germany, commit a sexual offence, be convicted by the German courts, rightly and properly serve his sentence and that would not be known to any British police officer when they came back to the UK and it frankly would not be known to the British courts when they re-offended in Britain and went before the courts, they would go with a clean record which obviously affects the sentence. That is a totally unacceptable position I would say professionally and crucially from a public protection point of view. Over a period information was supplied to the UK and frankly sat in box files. It was not entered into the Police National Computer and there was a gap. That situation is now being addressed, in actual fact the ACPO criminal records office is coincidentally located in Hampshire and they are working their way through in putting serious offences on a risk-assessed base on the PNC. In respect of people coming into the UK, I would have to say at this point in time, and I stand to be corrected by the relevant department of the Home Office, people are not checked against a criminal record database or a police database, it is against immigration databases, et cetera, so there is a gap at this point in time. I hope with the implementation of e-Borders, and as and when we join up with Schengen, more information will be available so that whilst they may well be allowed into the UK there will be an update as to the fact that they are now in the UK. At this point in time we do not have effective border control in that context and I would urge at some stage that there should be automatic recognition of convictions throughout the EU. If you commit a burglary - it does not need to be a paedophile offence - in one Member State that is relevant to the police in another Member State and crucially to the courts. That is ultimately where we should be going, that there is availability and access to relevant criminal information. Q150 Mrs Dean: Mr Hughes, do you want to comment? Mr Hughes: It does not just apply to records of convictions, there are other databases that create problems for us at the present time. As you say with the Schengen Information System, at the present time we are in the situation where an individual could be refused entry to France by a French police officer who is based in Kent at the supposed controls for the Channel tunnel on the grounds that the French officer is aware that he is a threat to national security from the information that he has from the Schengen Information System. That French officer can turn that individual back without us having access to that same information. We get around that with local procedures, we would expect that, that is the way that law enforcement operates, that is a bit of an interesting area where we need to get that resolved. There is a technical solution that is being proposed to ensure that the alerts that we put on are not rejected where they are incompatible with other Member States and I will give you an example of that. Again, a UK wanted person alert could be rejected if there is a refusal of entry alert from another Member State that overrides it because the wanted person alert will never be actioned because they have already refused entry, the only way they can deal with a wanted person is by letting them into the country. It is a little bit catch-22 on that one so you could end up going around in circles on this. We need some UK friendly solutions that will help us to overcome that. There are some issues which we are already flagging up and trying to bring that to the attention of those individuals who can help us. Q151 Mrs Dean: Is the example you gave about Schengen symptomatic of the UK being denied access to certain Schengen data systems because it has opted out of the relevant first pillar agreement? Mr Hughes: Yes. Q152 Mrs Dean: How damaging, in general, do you think it is that the UK has had a tendency of cherry-picking first pillar participation to its ability to access vital missing data? Chief Constable Kernaghan: I do not think we are being denied, but in respect of Article 96 which is information held on aliens, in essence, it is to do with the UK's policy that we will retain our own border control. As Bill had said, the Schengen system is a very straight forward system, there is one record for one person. It could be if we were trying to put information on, the system would say there is already a record and if it was Article 96 we would be denied access because it is policy that we should retain our own border control. At this point in time Europe is saying if you are not contributing to that particular pool of information you should not have access to it. I believe the Home Office are seeking, as Bill has suggested, a legal workaround. Professionally, I have to be very clear, I want as much information to protect the public as I can get my hands on and it does worry me that there will be information available which I will not have access to. I have to say, as a police chief - and there will always be a cause célèbre - it could be if there is a notorious case it will transpire, the media will be able to say, "Did you know under Article 96 in the following country they knew this person was a mad axe man" or whatever, and in actual fact the police chief in Britain will be stood looking at the cameras saying, "No, I was not aware of that". That is not a failing on the police part, it is a matter of policy. We would like access to Article 96 but at this point in time we have not got it. It has got to be a matter of political judgment what areas of co-operation we contribute to or not, obviously subject to political direction I would like to co-operate as much as possible because it is about public protection, that is my raison d'être, and I think harm minimisation is SOCA's charter. Mr Hughes: Absolutely. Q153 Mr Streeter: On that very point, one of the reasons why politicians like myself are very concerned about Schengen and are seeking more control of our national borders and so on is about public protection, national security, issues of sovereignty and so on. We seem to be getting the message this morning from you as experienced practitioners that public protection and national security issues might be enhanced paradoxically, I would say in brackets, if we were fully part of Schengen rather than our distinct halfway house arrangements. I am not asking you to give a political response but as a practitioner are you saying to me, "Look, we would be better off if we were fully part of this even including public protection, the flow of crime and criminals and so on"? Chief Constable Kernaghan: I have to say yes, I want more information to enable me to discharge my responsibilities in a more comprehensive manner. Mr Hughes: It is the law of unintended consequences. We understand the issues around sovereignty and the matters that relate to that, the unintended consequence of that is we are denied access to intelligence that is the key to providing effective public support in ways. The better intelligence for us in SOCA, the better intelligence for policing as Paul has already referred to, those are the unintended consequences that we do not get the access to that we require. Yes, there are workarounds, we can do that but really should we be looking at workarounds rather than finding proper solutions to do with that. I know it is a difficult question politically but you asked the question of us practitioners and that is the answer. Q154 Chairman: We will pursue that so we do not misinterpret you. Are you saying that if we abandoned our border controls, which would enable us to participate fully in Schengen, you would be able to do a better job of protecting the British public because you have to seek access to information or if you were forced to choose, would you rather hang on to the border controls and get away with the workarounds? You smile but that is a dilemma which many British ministers have had to face of all political parties and it is still on the agenda, that is the choice. Chief Constable Kernaghan: I think it is a false choice. I do not think there is a golden load of Article 96 information that if Bill and I could access it would transform British society, far from it. Equally, I would have to say, as low key as I can, are we satisfied that our domestic border security is superior at this point in time to alternative options, I simply make that point. If we are saying there is a British gold standard and then there are these other people who perhaps are not just as good, that might be a valid choice. I would simply say and I am sure this Committee has heard evidence in the past which maybe says it is not such a stark choice. Q155 Mrs Dean: Lastly, we have discussed the UK's opt out of Schengen. How much of a problem do other Member States' national vetoes pose for the UK? Mr Hughes: Again, that is a political issue. I do not think it has created major problems for us. Chief Constable Kernaghan: I think at this point in time we are not operational members of the Schengen Information System. I rather suspect when colleagues from SOCA and Mike go to meetings in Europe perhaps our voice is not as strong as those who can say. We have a functioning system, that is the nature of any club or collective. I look forward to the day when we do have a functioning system. Q156 Chairman: Can we move on briefly to the principle of availability, which I think you have all endorsed, which as we understand it is the ability to access very easily information held by other law enforcement agencies across the European Union. Are you confident that the information that you share from here with other Member States would be treated at least as well, in terms of confidentiality and so on, as it would be in the UK? Chief Constable Kernaghan: I think my gut reaction to that is when I first studied the Data Protection Act I was told we had to bring it in because it was a building block so that we could exchange information with other countries. They have their own data protection legislation. I have confidence in their professionalism and I would imagine the data protection regimes are fairly similar throughout the European Union. Q157 Chairman: In practical terms dealing with organised crime there has been criticism from the European Community, even running up to 1 January, about the two newest accession states and their law enforcement systems and issues of corruption in their judicial system in a broader sense. Do you have concerns about extending the principle of availability to some of the newer members of the European Union who have not got the comparable traditions of the founder members of the European Union? Mr Hughes: In the case of the two Member States which you referred to we have been working with them for some considerable period of time with our liaison officers abroad and that has been the case before SOCA was created, the precursor organisations were working there, and we have had very effective links with them. In the case of Romania, you will know that we did a lot of work with them on Reflex on organised immigration crime because they are both a source and a transit country so we are working with them. Part of the process of working with them is to establish with those countries better ways of working to try to demonstrate how the EU Member States work in a much more professional way and that has certainly been taken up by Romania, with Bulgaria again our officers there are working very closely. As with all areas of law enforcement in whatever country in the world you work you need to take risk assessments of everything that you are doing in terms of sharing data and, of course, the source from which that data originates. We are doing that at every opportunity. The risk, we have not seen so far the risk that people described or ascribed to those Member States but it is something that we are looking for. If it occurs, then part of our UK threat assessment that we produce is to take account of the fact that there are changes in Member States to the EU and to notify and see what changes that brings in terms of the threat to the United Kingdom from organised crime. As I say, that is a general policy that we follow with all the Member States. One of the things that translates to in practice is we tend to work, again I spoke right back at the beginning about intergovernmental co-operation, bilaterals and some multi-laterals with other countries. Particularly we have been working with the French, the Spanish, the Germans and the Italians in dealing with the security issues in the Western Balkans where we have a joint interest in doing that. Part of that is to operate because we have a very clear interest to do that and we have some expertise we can bring from those Member States. We also then feed back through the European police chiefs, through police co-operation and through other EU institutions to make sure that other countries see the ways of working that we are demonstrating. Without being arrogant or conceited, the more mature institutions can demonstrate better working procedures and I think it is a right of all professional law enforcement officers to do that. Q158 Chairman: That describes a process of spreading best practice and building confidence between different countries, building confidence between different agencies. The European Union seems to be set on a course where at some point in the not too distant future the principle of availability will become enshrined as a right for Member States and at that point, as a law enforcement officer, you lose the control over the process that you have just described because the principle becomes established. Are you confident that the timescale that the European Union is working on, on the principle of availability, is not going too fast so that you get to a point of mandatory data sharing before you would have the confidence you are looking for? Mr Hughes: The timetable is one thing, what I would like to see are the checks and balances and the pre-checks that Rob referred to just now, when we talked about this, to make sure that the practices and procedures in those countries are acceptable before they are granted accession status. Q159 Chairman: Let us talk about countries that are already in. The principle will become a principle from 1 January 2008 of availability and I am not sure that means the legislation is all in place by then but we are moving on quite a fast timescale. I am asking whether you are confident that we will not end up with a situation where you and Mr Kernaghan are required to share information across the European Union before you are confident in the integrity of the systems for handling that data? Mr Hughes: I think my confidence could be increased when I see the evaluation process, as we go through evaluation checks in the UK I want to see the results of those as well. That is a matter again which I think is a political issue to make sure that is reinforced. Yes, I would want to see checks and balances in place. Q160 Chairman: It is a political issue but as police officers, and Mr Kernaghan you might have a view on this, do you feel that you have a sufficient ear in the Commission when they are taking forward their proposals for legislation that you would be able to say as practical police officers, "You are going too fast, perhaps for broad and political objectives you need to slow this down and do it properly"? Chief Constable Kernaghan: Availability, on this I am off the pace, will always be subject to the overriding principle of need to know. We will gladly provide hard factual information which will be easily accessible. "Have you got a criminal record?" should be available throughout the EU, but if we are talking about sensitive material, we will always apply the need to know so I think that is the pragmatic professional approach. Do we have appropriate representation in Brussels? That is perhaps for others to comment on but, Chairman, you raised the police co-operation working group or Mr Hughes did. That is a Home Office Civil Service representation, there is not a professional police representation there as of right. I think you can always improve the pragmatic, the practitioners, members of Bill's staff and Mike Flynn represents me at various meetings. I think perhaps there is a case for a stronger professional input to European deliberations but, as I say, on availability, subject to need to know principle, I do not have concerns about it. Q161 Chairman: Mr Quille, you operate what you describe as a rigid data protection and confidentiality regime with the information that you bring together at the moment. Will those same standards be maintained as the principle of availability comes into force or do you have any concerns about the proper handling of data that is shared across the Union? Mr Quille: If I refer to the Europol data protection system, we have a very high standard. We deal with sensitive information about organised crime so we can use all data protection systems, so it is high on that. If I can come back, we have the highest standard of data protection. The question, in the same way as mentioned in my previous intervention, is to be sure that in some Member States data protection standards will be in place but we have to check. We have in Europol a joint supervisory body composed of Member States of national data protection systems. We will check, if I can say, case by case. For you, Paul, I have no concern but we have to be very careful. Q162 Chairman: Just to pursue this point, as I understand availability much more data will flow from Member State to Member State without going through Europol or some other agency and the test would be that it would be accessed on the same basis as the national law enforcement agency. If I understand it rightly, for example, a police officer in Hampshire who is investigating a rape would be able to gain access to the national DNA database. If I understand the principle of availability a police officer in any other European Union state investigating a rape would also be able to have access to the UK national DNA database on the same terms because they are investigating a crime. What I am trying to establish is are we sure that we will not put that access into place before we are convinced that each country will use that data as properly and securely as I would be sure that a Hampshire police officer would do? Chief Constable Kernaghan: Basically, people cannot go into a room and trawl through the DNA database to pass an idle hour et cetera. You have a sample, you put it against the database, which is independently managed in the UK, it is not a police serviced database and they say "hit" or "no hit". You give a very good example. If you have a large vehicle driver moving around the European Community committing offences in different countries, it is incredibly important that we might be able to identify a sample from a victim with a sample of a suspect elsewhere in the European Union so the DNA would be good. It is not something we just trawl, it has got to be you put a sample in and you get told "yes" or "no". Chairman: Thank you. Can I thank you very much indeed, gentlemen. That has been a very, very helpful session. It has been good to hear from people who are dealing with the problems on the ground so thank you very much. Witnesses: Ms Sally Ireland, Senior Legal Officer (Criminal Justice), JUSTICE and Ms Julia Bateman, Justice and Home Affairs Policy Advisor, The Law Society, gave evidence. 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 at the Brussels office of the law societies of England, Wales, Scotland and Northern Ireland but the evidence submitted in written form 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 case 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 Homes 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. 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 respective, 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 as a rule of law and of legal certainty, but under the current procedures there will be immense limitations on what they can do, as previous presidencies have discovered. 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 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 have got surrender in 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, 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 rioting, street fighting and pub fighting. A lot of UK citizens would pay the €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 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 for 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. 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 naïve, 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, 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 and there is 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 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 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. Q200 Mr Winnick: One final point, we know how very few people bother to vote in European elections, the whole body of the European Union, perhaps one of the reasons why there is hostility to it, seems so totally remote. It just seems to me what is being proposed here will make it even more remote otherwise, but perhaps it is a political point. Ms Bateman: Just a very short point, and this is my own opinion rather than The Law Society's, I do think passerelle clauses and QMV will just turn anybody off, but if you sit there and say to somebody, "The European Union is trying to make it safer for you to have access to a lawyer in case you get in trouble on your holidays, travelling through Europe or working in Europe", I am not going to repeat the advantages and disadvantages, but I think the information is not sufficient really. Q201 Chairman: Sally Ireland, it may be a little unfair but JUSTICE's evidence, perhaps unusually for an organisation, appears to conclude that what we need is more discussion about the way forward in that you would like to see better protection for people who are arrested, you recognise that unanimity is effectively blocking that, you do not like QMV for the reasons that you say and you seem to end up almost welcoming things like the Prüm Treaty in which a group of EU States just goes away and unilaterally agrees something and now the German Presidency wishes to impose that on the rest of the European Union with probably less scrutiny than would have taken place if it had gone through the more formal channels. I am not quite clear how JUSTICE thinks the decisions should be reached in the European Union. I may be a bit unfair, but you do rather tail off by saying we should have more discussion about this. Ms Ireland: I am at a slight disadvantage because a former colleague wrote the written evidence which was sent on to the Committee and then cruelly left me to defend it. However, I would say that one of the real problems in this field is that there are only a certain finite number of options which are active, if indeed any of them from the status quo are active, one of which, of course, is the passerelle and the other is the treaty establishing the constitution which although in its entirety may not go through, there is talk, I believe, of picking out elements of the constitution, and there are good elements of the treaty establishing the constitution which could be picked out. I think if I had to opt for an ideal system of co‑operation at this level one idea might be to combine elements of both procedures in that to institute a Qualified Majority Voting system but to combine that with the retention of the framework decision instrument rather than directly effective regulations and directives which by law can be transposed into UK law which would maintain the role of the UK Parliament, which I think is very important. Q202 Chairman: That is helpful. Could I pursue you on the Prüm Treaty issue because certainly when we were in Brussels this style of decision‑making where a group of States gets together and agrees something and then essentially uses, in this case, the German Presidency to push it forward was held up to us as an example of exactly what we do not want because, as we heard from law enforcement agencies, clearly they will be lobbying the UK Government to sign up to the Prüm Treaty, a treaty in which the UK Government had no say whatsoever, so that type of decision‑making would appear to be the worst of all the different models of decision making we have got at the moment. We are not seeing at any stage when the real decisions are being taken. Ms Ireland: I have to say I had not read our evidence as advocating the Prüm Treaty. Q203 Chairman: Should we be, as some people said to us in Brussels, very concerned about developments like the Prüm Treaty or should we be doing it, as other people are saying, with 27 Member States, you cannot get unanimous agreement, so this is the only way to move the agenda forward? Ms Ireland: Treaties of the type of Prüm are an inevitable consequence of the stalemate which has developed and you see the G6 going off and having more focused negotiations. To be honest, the presentation of other Member States with the fait accompli which they can either sign up to or not is neither democratic nor is it desirable in terms of mutual trust and co‑operation between the different Member States, particularly when you have a situation where it is the G6 and obviously smaller Member States may have thought they had been completely left out of the negotiating table, and no, we would not advocate Prüm. The only way in which it could possibly be advocated would be as an expedient measure in the face of the current stalemate to put important measures through, if we retain the current procedures, but that is not ideal by any means. Q204 Chairman: Julia? Ms Bateman: I would entirely agree. As Sally said, it is almost sadly the logical consequence of the inability perhaps to make progress, 27 Member States, previously 25 Member States together, but I think this is a bad example of how you have no democratic accountability, limited involvement, indeed, of national parliaments in this, and also what starts off as multilateral, bilateral co‑operation then becomes imposed on the rest of the European Union. As you say, the German Presidency has this on the agenda for the Justice and Home Affairs Council next week and governments do not have a say in this. Again, each government has an option whether to sign up to the convention and have it ratified, but the political pressure would be, "Well, it is a crime-fighting measure, it is a law-enforcement measure. We signed up to it, so should you". I endorse what you say, it is a bad example of law‑making. Q205 Chairman: Could I thank you both very much indeed. It was very useful. Ms Bateman: Thank you for your invitation.
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