Justice issues in Europe - Justice Committee Contents

Examination of Witnesses (Question Numbers 40-50)



  Q40  Chairman: Is that not a pretty serious problem, and are you going raise it in the Stockholm discussions, bearing in mind that most of our constituents are not very happy at the thought that disqualified drivers from other countries are driving on our roads?

  Emma Gibbons: We had discussions on the Stockholm programme that actually said that we would like work pursued on a range of disqualifications, and mention is made of that in the Stockholm programme. It would be one that I can take back and explore with my colleagues. Our focus to date on disqualifications has actually been around disqualifications from working with children. That is another particularly important area where the EU has yet to act and which we think is very important given free movement arrangements.

  Chairman: I think most people would be surprised that in all the words that surround this, those two issues are so far from being implemented yet.

  Q41  Dr Palmer: One more point on that issue. When I moved from living in Switzerland to living in Britain, I changed over my driving licence from a Swiss one to a British one and I noticed that, firstly, I was not required to give up my Swiss driving licence and, secondly, the information on that (that it was conditional on my wearing glasses) was not transferred, probably because they could not read the German. If I was unscrupulous, I could avoid the condition and, if I had points on one licence, I could use the other licence. Would you consider taking these points into account?

  Lord Bach: We certainly will do that—and more. I am going to offer, if I may, to write in due course to the Committee. This is, without of course wanting to opt out of our responsibility, a Department for Transport issue primarily, but we accept the significant points that are made about driving.

  Q42  Dr Palmer: Changing the subject, the Information Commissioner's Office calls for a comprehensive EU data protection law when the Lisbon Treaty is fully ratified and for a merger of all data protection supervisory systems at European level. The UK Government also proposes a cross-pillar justice and home affairs information management and data protection strategy. How do you see the way forward on that?

  Lord Bach: I am going to ask Ms Gibbons to reply to this one. It is within her expertise.

  Emma Gibbons: The Commissioner did, indeed—I read his evidence—call for common data protection arrangements. We would argue there are already some common data protection arrangements in place. There is a Directive covering the first pillar business, there is a framework decision which is due to come into force which will cover the police and criminal aspects. So we think there are extensive arrangements in place which do protect individuals and data subjects in relation to EU sharing. We think there is more the EU can do on all of this. As you mentioned, we are pushing within the new work programme for a more strategic approach to both data sharing and data protection. What we would like to see is a programme, a strategy, setting out what it is we want to share and, more importantly, how we should go about it, and within that we are pushing for a very strong data protection regime to apply. That said, we do not necessarily see new legislation as the solution to that. What we are arguing for as a first stage is some practical measures, one or two which I think the Information Commissioner raises in his evidence: the idea of privacy impact assessments, for example, to accompany new proposals, which we see as tied in very tightly with other arguments we are making in relation to the Stockholm programme about better regulation, ensuring new proposals are properly prepared, accompanied by regulatory impact assessments. We have also flagged the idea of privacy by design, where new proposals incorporate from the start the idea of data protection, what the data will be used for and why. Finally, because we have all of this legislation in place, what we are saying is that we need to review it, we need to see what works. Once that evaluation has been done, we can then make an assessment about whether there should be new legislation to create a single instrument reflecting what will be a single chapter in justice and home affairs, but we see that as further down the line. It is not necessarily the first and only solution.

  Q43  Dr Palmer: So the reason that you favour that incremental approach is that you feel that if one went straight for legislation, one might not get it all right, that we are exploring the best approaches, or why do you not like the idea of a single data protection law?

  Lord Bach: I have not said we do not like a single data protection law. The approach we are taking across the new work programme can basically be summarised within the phrase "look before you legislate".

  Q44  Chairman: A new concept in government, I think!

  Lord Bach: The argument we have said is that, where you have arrangements in place, let us see if they are working before we rush ahead with new legislation. There is legislation in place; there is a Directive in place; there is a framework decision; individual instruments have their own data protection regimes. We want to sit down and make sure that we know what works and where the gaps are. The Commission is undertaking an investigation into the challenges to be posed by data protection over the coming years with technological developments, new IT. Once we have that evidence, I think it would be far better to sit down and get this right rather than rush ahead and do something quickly and get it wrong.

  Dr Whitehead: Can I enquire about victims in both the UK system and also victims of crime in other Member States? The framework decision on the standing of victims in criminal proceedings was adopted in 2001 by the UK, but how does the Government ensure that where there are victims in other Member States they are properly supported? Is it the UK Government's assumption that they will normally be supported by agencies in other Member States or is it the assumption that they will be, on the basis of UK standards, outreached by the UK Government?

  Q45  Chairman: A mystified silence!

  Emma Gibbons: There are pieces of European legislation in place to protect victims. As the Minister has already referred to, as a starting point we do have consular services to support UK citizens overseas anyway, whether they be suspects in proceedings or, indeed, victims. In addition to that, the EU has legislated in relation to two instruments. The first was in 2001, which was on the criminal law side, creating some rights on how victims should be treated in criminal proceedings—rights to information, for support, that sort of thing. The second was in 2004, which was about compensation for victims, ensuring that where somebody was a victim of crime in another Member State they could apply for their own country's compensation scheme and be compensated for the injury. So there is work that is already taking place, reflecting the point made earlier that we do take seriously the fact that there are UK citizens living and working in other Member States, and we think, on the whole, those measures are good things.

  Q46  Dr Whitehead: In the context of new proposals and new framework decisions, one of those potential new framework decisions might, for example, be to introduce protective measures which protect victim anonymity but do not actually protect the right of the defendant to challenge their evidence. Are you happy that, as far as the impact of new framework decisions, indeed, new Member States' initiatives are concerned, that there is public consultation and impact assessment within the UK properly on those proposals?

  Lord Bach: On the way in which we get public consultation on the both the issue you mention and others, we do consider it important to consult the public and practitioners, obviously, sometimes through formal consultations, such as the current one on succession and wills. We often also consult practitioners through a number of forums, such as the Advisory Committee on Private International Law, a most distinguished committee called the North Committee—Sir Peter North is the Chairman at the moment and is retiring and I have actually sat in on the North Committee which has fantastic expertise in its field—in the criminal justice field, the Judicial Co-operation Forum as well. So when civil and family law hurdles are pursued, we always consult those who have an interest in the subject matter from the judiciary, down through the legal profession, to court user groups and advice providers. I think we consult sufficiently and well on these issues. I do not know whether that helps on the question you are posing about victims. There are some new proposals that have come out about victims in the Council Conclusions of October this year.

  Q47  Dr Whitehead: I was rather using the example of the possible development of framework decisions which could balance the question of victim anonymity against the right of a defendant to challenge their evidence in a way that we might find uncongenial with how we have developed that particular balance in the UK and, under those circumstances, how might consultation properly be carried out and how might impact assessments be carried out in order to ascertain what the UK's future position is on those and, particularly, to what extent might the public be involved in those proposals rather than the decisions of expert boards and, indeed, those who are more closely involved with the process perhaps at a European level?

  Edwin Kilby: I think the best way for me to answer this is simply to say that we do commit to consult the public and practitioners wherever we can on whatever the proposal was. So, if a proposal of the sort you describe were to come forward, I have no doubt at all that not only would we consult those who would be likely to come across this area of business on a day-to-day basis, but I think also we would look towards some sort of wider consultation too. Obviously, one of the things that we would want to look at is whether a public consultation was appropriate in relation to that kind of initiative, but I am sure we would examine that idea very favourably.

  Q48  Dr Whitehead: In terms of the actual proposed areas of work, what areas of work do you particularly have concerns about and in what areas do you think the case for change may actually be somewhat lacking?

  Lord Bach: This is in terms of the roadmap and the Directives that may flow from it.

  Q49  Dr Whitehead: Indeed. I have raised the question rather more hypothetically about how consultation and impact assessments may be undertaken, but I would assume that somewhere in the department there are people thinking, "Hang on a minute. Should we do something further about these particular proposals that are coming forward?" How might those particular concerns best be flagged up within the department?

  Lord Bach: Some proposals concern us more than other proposals. It is fair to say, I think, the one we are consulting on at the moment, succession and wills, is one of those that concern us, for obvious reasons which we may have time to go into or not this evening. There are other proposals. I mentioned the European public prosecutor, for example. If that were to emerge as an issue in the course of the post Lisbon era, alarm bells would be ringing and we would have strong views. We think the work programme that we hope will be adopted pretty soon now, by the end of the year—

  Emma Gibbons: 30 November at the JHA Council.

  Lord Bach: —will set the direction, and we will look carefully to see what it is that is going to be proposed, but we like what we see, basically, in terms of that list that I have already read out of proposed framework directions which we think lead to better procedural rights.

  Emma Gibbons: I think we see the work programme as the way we can influence what emerges from the Commission and, indeed, Member States over the next five years. If we can get that work programme right, then the proposals that come out in the form of new legislation or practical initiatives we hope will support the delivery of UK objectives on a number of the issues raised. That is under negotiation. Obviously there are proposals in there that other Member States are pushing that we are not so keen on, but we have done a lot of thinking over the last year about what we want the EU to deliver. For example, we are arguing very strongly that it should include work around, as I mentioned, disqualifications and child protection so that we can ensure that we have the information we need on previous criminal convictions. Equally, we are resisting efforts to change the nature of Eurojust from a co-ordination organisation into something more of a prosecutor. As I say, the main aim for us in all of this is to get that programme right so that we then know that the work that will continue over the next five years will be mandated by that programme and the Commission and Member States will have to follow what is in that programme in bringing forward new ideas and new initiatives.

  Q50  Dr Whitehead: Are you using specific research evidence, for example, to inform those sorts of positions and to look at where gaps in legislation might be?

  Lord Bach: Yes; there is no doubt that we are at the forefront of those arguing for greater levels of evidence and impact assessments of course to be built into the European legislative process, and we feel, particularly at the moment, that we are winning that argument. We think that what appears in the roadmap are measures that will not go ahead unless there is evidence for them that they will actually add value to life for ordinary people in the EU, but we do employ academics to advise on particular specialist issues—in contract law, the common frame of reference, which the Committee will know about. We had an extremely distinguished academic, Professor Simon Whittaker, who prepared, I think, a leading document to analyse what was being proposed. So we use various means, but always, for us, we want the measure to be practical, rather than theoretical, and based on evidence too. This has been, of course, something of a struggle sometimes within the confines of the Council, but we think at the moment the spirit is with us.

  Chairman: Lord Bach, Ms Gibbons, Mr Kilby, thank you very much indeed.

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