Examination of Witnesses (Question Numbers
51-59)
PROFESSOR STEVE
PEERS
10 NOVEMBER 2009
Q51 Chairman: Professor Peers, you
are very welcome. Although we are treating this technically as
a formal session of the Committee, that is only so that we get
the useful things you tell us down on paper by having a formal
record, but we actually want to have a fairly informal question
and answer and discussion so that you can improve our knowledge
of these matters on which you have written at least one substantial
paper and no doubt others. I do not know if there is anything
you would like to say by way of opening or whether you would prefer
to proceed to have some questions thrown at you. Is there anything
you would like to say initially?
Professor Peers:
Nothing in particular, Sir. I am happy to take questions.
Q52 Chairman: Fine. In that case,
it might be very helpful for all of us to start with what to laymen
are always the mysteries of the pillars. If I were to tell my
constituents, "The third pillar and the first pillar are
being merged," they would look at me in complete astonishment.
Could you put into words which my constituents might more readily
make sense of what this really means and whether we as a country
will be affected in any particularly dramatic way by that process.
Professor Peers: It means, in
a narrow sense, first of all that the decision-making rules change
and that the jurisdiction of the Court of Justice changes in relation
to adopting policing and criminal law measures within the framework
of the European Union. The decision making changes because mostly
you will have qualified majority voting in the future instead
of unanimous voting, mostly you will have a bigger role for the
European Parliament in terms of co-decision rather than just being
consulted, and the Commission has a somewhat stronger role—not
quite, though, its normal monopoly. The jurisdiction of the Court
of Justice's normal rules extend to the whole of this area, meaning
that any national court in this country or elsewhere can send
questions on EU laws adopted in this area after the Treaty of
Lisbon, whereas at the moment there is an opt-in process to the
court's jurisdiction. Seventeen countries have opted in, and we
are one of the ten which has opted out in relation to policing
and criminal law. That is a significant change for us. Those measures
will take a different form. They will be not so much intergovernmental
measures, public international law measures, but what we now call
community law measures which have direct effect and supremacy.
That is the narrow answer. The broader answer is also that the
competence in this area changes, so that things will be described
more precisely in terms of what the EU can do in relation to policing
and criminal law, but, also, the UK now gets an opt-out from policing
and criminal law which we do not have at the moment. That obviously
cannot be overlooked when describing the other changes. They might
seem rather threatening from the point of view of national sovereignty
if you overlook the fact that we also have an opt-out, and if
you overlook some of the limitations of the competence of the
European Union that will apply.
Q53 Chairman: What does that change?
Given that previously these were matters entirely dependent on
unanimity, moving to a situation in which we are part of the process
but we have an opt-out, where does that leave the United Kingdom
in these matters?
Professor Peers: It would depend
on whether the government of the day is inclined to opt in or
not. If we opt in, then obviously we have whatever influence we
would otherwise have as a participant in the discussions. If we
opt out, we cannot expect to have very much influence. Although
there is a `third way' if I may use that phrase—which the
Government has tried a few times already in relation to civil
law and asylum—which is opting out, hovering on the sidelines,
making suggestions as to what changes might be made so that we
could then opt in. That has worked on two occasions and so they
are trying it a third time on an asylum proposal. I do not know
how often it might get tried.
Q54 Chairman: Can you say what those
two occasions were.
Professor Peers: One was in relation
to the Rome regulation on conflict of laws on contract and the
other was in relation to maintenance proceedings in relation to
family maintenance orders—across borders in both cases.
The third occasion pending is on reception conditions for asylum
seekers, where the UK has said we will opt in if the rules on
detention and access to employment and so on got changed.
Q55 Chairman: These are all occasions
when the British Government felt that it was in Britain's interests
to participate.
Professor Peers: They wanted to
participate in principle because they could see that maybe there
were not huge changes they wanted to make but the changes were
big enough that the Government did not want to opt in without
making sure that those offending provisions were removed. It sort
of stayed on the sidelines and tried to influence the negotiations
in a sort of pro-British direction, as the Government defined
it, and on the first two occasions it was successful. That is
another option which could be tried in future, although it is
a little bit risky. I do not think it would always be successful.
It relies on a certain amount of goodwill from other Member States
which would have to be continually earned, but it is a possibility
obviously in the future in the area of policing in criminal law
just as it has been applied in civil justice successfully so far.
Q56 Chairman: In what ways does the
European Court of Justice's jurisdiction get extended as a result
of this process?
Professor Peers: The two main
ways are that, first of all, it would have jurisdiction, as I
mentioned already, over all Member States' national courts and
tribunals. Any magistrate in the UK and anyone who has a sufficiently
judicial power who is hearing a first instance criminal proceeding
or an action against the police or something like that could send
a question to the Court of Justice. Obviously so could the appeal
courts, the Supreme Court and so on.
Q57 Chairman: In what sort of circumstance
does that arise? That is a court in this country addressing a
question to the court in Brussels.
Professor Peers: In Luxembourg.
The sort of examples where it has arisen already—and there
have been about 20 references from other Member States which have
opted in already to this first type of jurisdiction—would
be, for instance, if somebody was trying to resist the execution
of a European arrest warrant but there had been a series of cases
already and they argued that the national implementation of the
Framework Decision on the European arrest warrant is somehow defective
so that therefore the arrest warrant cannot be executed.
Q58 Chairman: This might be somebody
whose defence counsel was arguing that the arrest warrant should
not be executed.
Professor Peers: That is right.
It would be the defence in that particular example. There have
been some cases where the prosecution has sought to use it. With
the arrest warrant, it is a possibility that the prosecutors could
seek to use it to strike down some national restriction on the
arrest warrant under the national law which is not compatible
with the Framework Decision. A prosecutor might decide, "Let's
try to get rid of that restriction. Let's try to get it struck
down."
Q59 Chairman: Are we talking there
about somebody situated in another Member country whom you want
to have arrested?
Professor Peers: The European
arrest warrant only operates when another Member State sends an
arrest warrant here or we have sent an arrest warrant somewhere
else. It might be a British national of course who is sought by
another Member State.
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