Justice issues in Europe - Justice Committee Contents

Examination of Witnesses (Question Numbers 1-19)



  Q1  Chairman: Lord Bach, Ms Gibbons, Mr Kilby, welcome. Here we are this afternoon discussing European issues in the justice area. It has not really been a big success area, has it, and we are looking to the Stockholm programme to fill the gap left by our inability to agree on the previous programme. Would that be a fair summary of where we are at?

Lord Bach: I think it is a little hard, Chairman. I think there have been some success stories, about which we hope to say a bit more later on this afternoon, but it is true that we are looking forward very much to the new five-year programme, the Stockholm programme, because we think inside its first draft it has some very exciting ideas that may well take this agenda forward.

  Chairman: I am going to ask Andrew Turner to begin the questioning.

  Q2  Mr Turner: What are the likely key impacts of the coming into force of the Lisbon Treaty?

  Lord Bach: That is a very big question and one, of course, that is immensely topical, if not contemporaneous. The effect, as I know the Committee will know, is that the third pillar will collapse and the first and the third pillar will move into one chapter, and it will involve, as far as we are concerned, the move to qualified majority voting and away from unanimity. That will, obviously, be a change, but, of course, what we say is that we have protected Britain's interests considerably by establishing an opt-in, in every respect, and, in some respects, both an opt-in and also the need for unanimity. So we believe that the Lisbon Treaty will be a move forwards in terms of the European Union and that the British interest there will be protected as well, if not better, than before.

  Q3  Mr Turner: It is a bit confusing, is it not, being told, on the one hand, all will remain the same but, on the other hand, these are matters for other people as well as ourselves but they are not going to apply to them. What do you really mean? What is going to come and force us to do things which we would not otherwise do?

  Lord Bach: I do not think I actually said what you just quoted me back as saying. Of course, post Lisbon will not be the same as pre Lisbon, but, as far as British interests are concerned, we will be able to protect them where we need to do so in a thoroughly satisfactory way.

  Q4  Mr Turner: Where are those things that you have just described? They are going to have to change but you will control them. How are you proposing to control them? Which particular projects are you not going to agree to?

  Lord Bach: We will have to see what develops. We start with a positive frame of mind, which is that we will want to agree where we can agree. If it brings forward more sensible, more practical, more pragmatic, more evidence-based decisions, then, of course, we will want to agree with them, but if something offends against British interests, for example the emergence perhaps of a European public prosecutor, there is something that is built into the Treaty so that we can apply what is, I think, described technically as a double lock on it. It will need to be a unanimous decision by the Council and we will have the choice of opting in or not opting in, as the case may be. There is one example for you of where we may need to take some action.

  Q5  Mr Turner: What you are suggesting—correct me if I am wrong—is those things which are going to be dangerous (and you have given an example) will be prevented from happening to the UK, all of them, or just the ones that you have mentioned and one or two others?

  Lord Bach: As I say, we start off with a positive frame of mind, which is that we want to move this agenda forward. It needs to be moved forward, as the Chairman I think was implying, and that is why we are so keen on the roadmap that the Swedish Presidency is putting forward, but where there are issues that affect British interests adversely, then, of course, we will act, as any government would, in Britain's interests; but we are proud to be members of the EU and proud to be playing our part, hopefully, in moving this very important agenda forward, and we think Lisbon is a way of doing that.

  Q6  Chairman: You see Sweden as an ally in taking a cautious, careful approach to these issues?

  Lord Bach: I think we see all 26 fellow EU members as allies in one sense or another, but, of course, to answer more seriously, we think the Swedish approach, particularly as represented by the draft five-year programme and one part of it, the roadmap, as being a much more sensible and perhaps British way of dealing with progress in this field than sometimes has existed before. So, yes, the answer to your question is we very much applaud what the Swedes have done up until now.

  Q7  Chairman: Can I turn to the human rights area? I will start with what I think is the widest of the points, which is whether you see a danger that ECHR jurisprudence will start to be compromised by jurisprudence around European Union definitions of human rights, leading to some confusion about what rights we are trying to uphold?

  Lord Bach: We think there was a real danger of that a few years ago, which is the main reason why we, with some other countries, were not prepared to accept the decision on procedural safeguards and pulled out of it, as I say, along with some other countries. We thought that what was being proposed there was too ambitious for its own good and was trying to address, all at once, in a single all-encompassing instrument, a wide range of fundamental procedural guarantees, and the framework decision would have ended up replicating, or did end up replicating ECHR rights inexactly, and we thought there was a real risk of widely diverging interpretations between the ECJ, on the one hand, and the Strasbourg Court. Our problem was with the approach. Now, with the Swedish roadmap and the way in which the framework decisions are to emerge one by one—the first having emerged really, and I was happy to speak in favour of it, on 23 October in Luxembourg—we think there is much less danger of there being two different types of human rights working in the EU context.

  Q8  Chairman: What tends to matter to most ordinary citizens and constituents is whether they end up in a court in some other country of which they are not a national with unfamiliar procedures which might appear to lack some of the procedural rights that they enjoy in this country. I know that is an issue that the Magistrates' Association and Fair Trials Abroad have both been concerned about. Yet the UK declined to adopt a framework decision on procedural safeguards. Is that because there were specific defects in that framework, or do you not share this concern about citizens who find themselves caught up in the processes in other countries?

  Lord Bach: No, it is an absolutely fundamental concern. As I say, I think it would be for any British Government. There is, of course, the protection of ECHR which crosses the 27 countries, but, as far as British citizens abroad are concerned who have the bad luck to have been arrested and are in foreign custody, I need to mention, of course, the excellent consular assistance that is given by our embassies. We have agreed a number of instruments within the EU already that go some way to ensuring that any UK citizen is supported. The European Supervision Order, which was agreed last year, deals, hopefully, with the unfairness and treatment that can arise from the assumption that a non-national will necessarily present a greater risk of absconding and should therefore be remanded in custody to prevent that happening. The framework decision on trials in absentia also seeks to improve protections for UK citizens. Let me move forward to the roadmap itself that we are talking about. That, of course, aims to improve criminal procedure across the EU in the future so that all British citizens who have the misfortune to find themselves subject to criminal proceedings will have greater protection. The first measure proposed by the roadmap, on interpretation and translation (and these are important issues for those who find themselves locked up in a foreign country) has just been agreed—that is the one I was talking about—on 23 October[1]. We are already arguing that the second one—information on rights and charges—should be brought forward by the Commission as quickly as possible, and you will know, Chairman, that the others in the roadmap are advice and legal aid, communication with relatives, employers and consular authorities, special safeguards for vulnerable suspects or accused persons and a Green Paper on pre-trial detention. This is a priority for us, and we think the Swedish approach, the roadmap approach, is a good course to go down.

  Q9  Chairman: JUSTICE put it to us that the sixth element, the Green Paper on the right to review the grounds for detention before trial, could wait for some years before it emerged. Is it really going to be as slow as that?

  Lord Bach: I think this is a difficult issue. I do not want to pretend to the Committee anything else. It is part of a step-by-step approach. The roadmap envisages the Green Paper, as opposed to an actual measure, so as to ensure the necessary consideration of the relevant issues before proposals are put forward. We do believe evidence-based policy-making is better. It seems to be something the Swedish Presidency also is much in favour of. I take your point about the time that may be involved here, but I would just say that the European Supervision Order, to which I have referred already, has already partly looked at the mutual recognition of bail, and that, I think, is a step towards it. Any future measure will have to take account of the European Supervision Order, but I do not for a moment suggest that this particular issue is an easy one. It may be that one of my colleagues would like to add to that.

  Q10  Chairman: We have more or less got agreement on bail, have we not? That is settled.

  Lord Bach: Yes.

  Q11  Chairman: So is that going to lead to a situation in which there are relatively few instances to worry about, or is there a considerable gap left where, because pre-trial detention is still more common than some people might wish it to be and bail does not work in those cases, we are in a situation that perhaps we would not be in for the same offence in this country?

  Lord Bach: Undoubtedly there will be cases, of course. There are cases now, I am sure, if you went round the cities of Europe, where bail has not been deemed appropriate, the charge is so serious—

  Q12  Chairman: As you said earlier, the risk of absconding is seen to be greater.

  Lord Bach: Yes. Hopefully that in itself will not now be such a powerful argument as was clearly used often. Let us say it is a serious offence charged, where people will be detained: the suspect will have consular access; we hope, and the Green Paper should eventually lead to some kind of solution of that problem, although there will be difficult cases. Of course, not all countries in Europe (and I think I can say this fairly) have the same high standards that we believe we have in terms of detaining people.

  Q13  Chairman: Some may be better.

  Lord Bach: Yes, some may be, although I find it difficult at the moment to think of one that may be better. Some, I think, are definitely not as advanced as us in that particular way. I remind the Committee, of course, that all our colleagues in the EU are bound by ECHR-compliant policies that must apply to detention as much as it must apply to other matters of justice. Again, I do not know whether there is anything to be added.

  Edwin Kilby: I do not think so.

  Q14  Alun Michael: I wonder if you could help us with a difference of view that we have been given. The Working Party on Substantive Criminal Law and experts on the implementation of the European arrest warrant reported that no serious problems exist in connection with co-operation and the implication of legal provisions in the area of mutual recognition—I think I have got the terminology right—but Fair Trials International describe the problems of the European arrest warrant as significant. Which do you think is the correct view?

  Lord Bach: If I were to say both had a point, I hope the Committee would understand me. We do think the European arrest warrant has brought significant benefits to the UK and we take the view that, on the whole, it is working pretty well. Can I give a couple of figures? Since entry into force five years ago, it has allowed us to extradite over 1,000 fugitives to other Member States and brought over 350 wanted criminals here to face justice, and also, perhaps even more significantly, it has reduced extradition times from around 18 months, on average, to, on average, now about 50 days. The other great advantage of it is that it requires Member States to extradite their own nationals if they are wanted for offences in other countries. We think that is very important, and I can give examples to the Committee. There was a Polish national living in the UK who committed an appalling assault and rape on a 48- year-old woman, leaving her for dead. He returned to Poland. Following the issue of a European arrest warrant, the defendant was returned here, found guilty: two life sentences.

  Q15  Alun Michael: I think the illustration is useful, I think the figures are interesting, but perhaps it would be easier for us to take it in if you could supplement that in written form.

  Lord Bach: I am sure we can do that.

  Q16  Alun Michael: As far as the significant problems?

  Lord Bach: I think there are a number of difficulties. One that sometimes arises as a difficulty with the EAW is proportionality. I think our view is that it should not be for every offence, however minor, that a European arrest warrant should be sought by the Member State, and I think there are things to be worked out there. I think that is one of the points that is made by Fair Trials International.

  Q17  Alun Michael: Is work ongoing on the convergence of practice?

  Lord Bach: I understand, yes. I think Emma may be able to talk more about this.

  Emma Gibbons: There was a review of the operation of the arrest warrant last year—it actually ran for a couple of years—where Member States were asked how they have implemented and how they operate, and it led to a series of recommendations on how we could address some of the concerns, both from the practitioners' side and some of the issues raised by Fair Trials International. The Council, in June, adopted a report which said, "We will address those issues." Proportionality was identified as one of the priority issues. There were others. The Fair Trials International report mentions training—that was certainly mentioned in the report—and they will be pushed forward as part of the new work programme. We are lobbying the Presidency on how that should be taken forward. There are regular meetings of experts to discuss these issues. The other thing I would say is that some of the concerns raised in the Fair Trials International evidence, we hope, will also be addressed through the roadmap—the issues around, for example, Legal Aid that they mention. Obviously, that would then be taken forward through some of the work that the Swedish Presidency will pursue in its roadmap on procedural rights.

  Q18  Alun Michael: That is helpful. The framework decision on the mutual recognition of financial penalties that allows fines, compensation and court costs imposed in criminal proceedings in one Member State to be transferred and enforced in another, as I understand it, has not been implemented in the UK. Why is that? Is there a figure of the revenue that we might have lost due to failing to implement it in the UK?

  Lord Bach: The Committee, I hope, will think itself fortunate that it has here a person as one of its witnesses, certainly not me, who negotiated as part of the negotiation team on this, and she can answer your question, I think, with some quite good news.

  Emma Gibbons: We have now implemented. We have notified the Commission that, as of 1 October, in England, Wales and Northern Ireland we had met the requirements and, as of 12 October, Scotland had already met the requirements. So whilst we did not meet the implementation date, and we accept that, we are now ready to apply the measure. You asked about the fines, the money that might have been lost. It is not a figure we can give you, mainly because the way the framework decision operates, the fines that are collected are based on judgments in other Member States. For example, if France issues a fine against a UK national, the UK courts will secure that, assuming the individual is in the UK, and keep the money. So in order to know what sort of money we would make from this, we would have to know what fines other Members States were imposing against our nationals, and vice versa. So it is not about UK courts recovering UK fines; it is about us recovering fines on behalf of other Member States.

  Q19  Chairman: And vice versa.

  Emma Gibbons: And vice versa, yes.

1   Note by witness: Justice Ministers reached a "General Approach" (a political agreement) on a Framework Decision on interpretation and translation in criminal proceedings, at the Justice and Home Affairs Council on 23 October. Before this Framework Decision could have been formally adopted by the Justice and Home Affairs Council, consideration would have needed to have been given to the European Parliament's opinion about the proposal followed by finalisation by legal and linguistic experts of texts of the measure in the official language of every Member State. Following the subsequent announcement of the Treaty of Lisbon's coming-into-force date-1 December 2009-it became clear that there would not be enough time to finalise the agreement before then. This means that, according to EU transitional policies surrounding the implementation of the new Treaty, the measure will have to be re-introduced under a new Treaty base as a directive under Article 82(2)(b). This could either be brought forward by the Commission, or as a Member State's initiative if the required number of co-sponsors can be reached (i.e. seven). The Government is pushing for the proposal to be re-introduced without delay. Back

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