4 European Protection Order
| (31237)
17513/09
+ ADDs 1-2
—
| Draft Directive on the European Protection Order
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| Legal base | Article 82(1)(d) TFEU; QMV; co-decision
|
| Department | Justice
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| Basis of consideration | Minister's letter of 21 February 2010
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| Previous Committee Report | HC 5-x (2009-10), chapter 5 (9 February 2010)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
|
Background
4.1 The Stockholm Programme, adopted in December 2009 by the European
Council, called on the EU to examine "how to improve legislation
and practical support measures for protection of victims and to
improve implementation of existing measures". This proposal
is a follow-up to this request, and is an initiative of several
Member States.[10] Its
central purpose is to assist victims who have obtained a protection
order in one Member State and who subsequently move to another
Member State. In the UK, protection orders are often used in domestic
violence cases, although not exclusively so. Examples are non-molestation
orders, occupation orders (regulating who can occupy a property),
restraining orders and injunctions.
Legal base and opt-in
4.2 The proposal's legal base is Article 82(1)(d) of the Treaty
of the Functioning of the European Union (TFEU). Article 82(1)
TFEU provides that "The European Parliament and the Council,
acting in accordance with the ordinary legislative procedure,
shall adopt measures to … (d) facilitate cooperation between
judicial or equivalent authorities of the Member States in relation
to proceedings in criminal matters and the enforcement
of decisions."
4.3 Under the TFEU, measures in the field of "Freedom
Security and Justice" (FSJ — formerly JHA) are no longer
adopted by a unanimous vote of the Member States without the participation
of the European Parliament, but by QMV on the basis of the ordinary
legislative procedure (formerly co-decision) with the European
Parliament.
4.4 Measures adopted under Title V are not applicable
to or binding upon the UK unless it decides to opt into them within
three months of their presentation to the Council, or at any stage
after their adoption. If the UK does not opt into a proposal within
the three-month timeframe, it can nevertheless participate in
the negotiations with a view to an acceptable text being adopted,
and then opt into the legislation post-adoption by the Council.
4.5 The Committee has eight weeks from the publication
to scrutinise whether the UK should opt into the measure, during
which time the Government has agreed not to take a decision on
opting in. This period expires on 2 March.
Previous scrutiny
4.6 The Committee reviewed this draft proposal in
detail in its Report on 9 February 2010.[11]
In the conclusion, the Committee asked the Government for a response
to the following aspects of the proposal.
— Article
81(2)(d) TFEU addresses "proceedings in criminal matters",
but national protection measures such as injunctions and restraining
orders are civil proceedings, the criminal penalty being a consequence
of the breach of a civil order. In which case, there is
an argument to say that the legal base should be founded on Article
81 TFEU — "Judicial Cooperation in Civil Matters".
We asked the Government for its views on the correct legal base.
— We asked for the results, even if preliminary,
of the Government's consultation process.
— We agreed with the Government that it
makes more sense for the executing State to have jurisdiction
of the EPO once transmitted by the issuing State. We also agreed
that the "person causing danger" must in all circumstances
be informed of the EPO. We asked whether "the person causing
danger" would have a right to be heard if an EPO were to
be executed in the UK, and for an update on these aspects of the
negotiations.
The Minister's letter
4.7 The Parliamentary Under-Secretary of State at
the Ministry of Justice (Lord Bach) responded to our questions
by letter dated 21 February.
4.8 On legal base, the Minister confirms that this
was one of the first issues raised by the UK at working group
level. It is a complex area and, given the fact that many of the
UK's domestic protection orders are civil with a criminal sanction
for breach, he says the Government was unsure whether the proposed
legal base would be adequate. In the discussion that followed,
the Government learnt that some Member States have only civil
protection orders with civil sanctions whilst, at the other end
of the spectrum, some Member States only have criminal orders.
It quickly became apparent that the issue of legal base was of
concern to most Member States. Discussions have therefore been
taking place in the Council about the adequacy of the legal base
and the implications. The most recent discussion about this took
place on Wednesday 17 February; in light of these discussions
departmental and Whitehall lawyers are in the process of assessing
the position. The Minister will keep us informed of progress.
4.9 On consultation, the Minister informs us that
his Department has sent out copies of the proposal with a summary
paper and questions to a number of organisations which represent
victims and those people who are likely to use protection orders,
groups who are involved in family justice and those who advocate
on behalf of defendants and have an interest in the criminal law.
In order to ensure that the Department can gather and analyse
their views and evidence before the Government has to take a decision
on the opt-in, the Department has invited groups to attend meetings
in the week commencing the 22 February. It is then holding a meeting
in Scotland on 1 March to ensure that the views of representatives
and relevant groups in Scotland are taken into consideration.
The Minister will share the outcome of these meetings with the
Committee.
4.10 On the rights of the "person causing danger",
the Minister says that this was picked up by the UK and a number
of other Member States. On whether such a person would have the
right to be heard if an EPO were executed in the UK, the Government
is still considering the basic mechanics of how the EPO would
operate; so it is too early to take a view on what kind of hearings
may be appropriate. He states that the Government will of course
work to ensure that the ECHR rights of the "person causing
danger" are respected.
4.11 Finally, the Minister states that the Government
remains positive about the principle behind this draft Directive
and is confident that the issue of legal base is being taken very
seriously and considered carefully at an EU level. We are reassured
that the issue is being looked at in detail. This considered approach
to legal base does, however, mean that there may not be total
resolution on this issue before the Committee is asked to provide
an opinion on opt-in. The Minister hopes that the Committee are
therefore able to focus on the principles underlying the order
even without a conclusive steer on legal base being available.
Conclusion
4.12 We thank the Minister for the information
on the legal base. We recognise that the issue is complicated
by the different procedures within Member States; but we would
be grateful for an idea of the Government's view on the appropriate
legal base, or legal bases, for the proposal. The Government's
view, even at this stage, will have an impact on our consideration
of whether the Government should opt into this proposal.
4.13 We are grateful for the information on the
consultation process. We had asked for the results, even if preliminary,
of this process, given the timeframe for the Committee's scrutiny
of the opt-in decision. We would therefore be grateful for a general
steer on the tenor of the responses received so far. For obvious
reasons, the views of practitioners and interested parties will
have an impact on our consideration of whether the Government
should opt into this proposal.
4.14 We take note of the Minister's response on
the need to respect the fair trial rights of the "person
causing danger" as identified in a European Protection Order.
4.15 Our time-limit for scrutiny of the Government's
decision to opt in expires on 2 March, the day before our next
meeting. But the Minister's letter of 21 February was more explanatory
of the state of play than a response to the questions we
raised in our Report of 9 February, and so we are not in a position
to give an opinion on whether the Government should opt in. We
therefore ask the Minister to reply to the requests in the paragraphs
above. We also fully expect that, when we report on the Minister's
further reply, he will take our views into account in deciding
whether or not the UK should opt in, in line with Baroness Ashton's
undertaking to Parliament.
10 Belgium, Bulgaria, Estonia, France, Italy, Hungary,
Poland, Portugal, Romania, Finland and Sweden. Back
11
See headnote. Back
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