Examination of Witnesses (Question Numbers
1-19)
LORD BACH,
EDWIN KILBY
AND EMMA
GIBBONS
3 NOVEMBER 2009
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
|
