Examination of Witnesses (Question Numbers
86-99)
JONATHAN FAULL
AND CLAUDIA
HAHN
7 DECEMBER 2009
Q86 Chairman: Can I make you welcome,
Mr Faull. I gather this is a valediction in your present post
as you are about to move to another very important area of the
Commission's work. I will just introduce my colleagues and then
if I can ask you to introduce yours. My colleague on my right
is Linda Riordan, who is a Labour Member of Parliament. I am a
Liberal Democrat Member of Parliament and the Chairman of the
Committee. On my left is Alun Michael, who is also a Labour Member
of Parliament and a former Home Office Minister, amongst many
other things. Fergus Reid is the Clerk and we have a shorthand
writer.
Jonathan Faull:
It sounds like a balance but it is not my business!
Q87 Chairman: We did try. We did
however have a Conservative MEP at lunch today. If you would like
to tell us who you are.
Jonathan Faull: Good afternoon.
It is a pleasure for us to be here. I am Jonathan Faull, Director-General,
and Claudia Hahn is my assistant.
Q88 Chairman: We are particularly
pleased to have you with us. As a Committee, part of our job,
as well as overseeing the work of the Ministry of Justice, is
to look at European developments in the area of justice. We have
had the Hague Programme operating for a number of years, but I
would think most people would acknowledge that the Hague Programme,
to put it mildly, underachieved its declared objectives and we
are now embarked on the Stockholm Programme. Would you like to
start by giving us an initial perspective, perhaps it is easier
as it is a valedictory statement, as to where we have got to with
Hague and where we are heading with Stockholm?
Jonathan Faull: Thank you. Yes,
certainly not all the ideas and ambitions in the Hague Programme
have been fulfilled. No doubt that is the way with these rather
general programmes because of subsequent events and shifting priorities
and the difficulty in making headway in some of these areas. I
hope that in five years' time people will not be saying the same
thing about Stockholm, but I rather suspect that not every last
idea in it will be completely realised. We have always found it
useful to have these five-year programmes because the process
for adopting them first of all gives ministers, and ultimately
prime ministers and presidents in the European Council, the opportunity
to focus on this area and to tell us how they see things and what
they want to be done. The European Council later this week, which
we hope will endorse the Stockholm Programme, will set out a course
for the next five years. Those five-year periods dovetail now
with the general European political calendar. That is to say they
come in the year of the European elections and in the year of
the appointment of the new Commission and now under the Lisbon
Treaty with the appointment of the new President of the European
Council as well, so it is a useful technique for a lot of thinking
and a lot of debating about what has happened, what has not happened
and what people want to happen in the ensuing period. The programmes
are turned usually six months later into action plans which are
more detailed and give a much clearer indication of the precise
measures which it is intended to adopt, and I expect that there
will be a Stockholm Action Plan proposed by the Commission early
next year and endorsed by the European Council in June of next
year. That is the current plan anyway. I am a little hesitant
about all these dates because again the political calendar is
a complex one. The current Commission is still in office in a
caretaker capacity. The new Commission, which will emerge from
the Parliamentary hearings in January, will take office at the
end of January/early February, one hopes, and only then will serious
work on proposing the action plan get underway under the Spanish
Presidency, and that will lead to the plan being adopted, I hope,
before the end of the Spanish Presidency so before the end of
June 2010. The other big change of course in Stockholm as opposed
to Hague is that the Treaty has changed and the Stockholm Programme
will be implemented in accordance with the Lisbon Treaty, which
to a considerable degree in the area of justice and home affairs
will change some of the ways we operate. To simplify (but I can
come back to details in answer to questions if you like) the role
of the European Parliament and the national parliaments will be
considerably different and enhanced in comparison to what is the
case today. In the Council the general rule will be voting by
qualified majority as opposed to unanimity, which is still the
case in some parts of the justice and home affairs agenda today.
There are exceptions to what I have just said; family law is one.
The other big change which I suppose I should mention of importance
to the United Kingdom is that of course under the Lisbon Treaty
the opt-in and opt-out situation is altered and, again to simplify,
in respect of Denmark, Denmark now finds itself outside the justice
and home affairs area to a very large degree and the United Kingdom
and Ireland have a much more extensive opt-in facility than they
had before. Those who say that Lisbon will make things easier
are, I think, under-estimating the complex arrangements to which
it gives rise, but we will use that system no doubt for a very
long time to come now in implementing the Stockholm Programme.
Again, other people say, "Well, the Hague Programme proved
difficult because it was under the old Treaty and Stockholm will
be that much easier because it is under the new Treaty."
I think that also under-estimates the complexities which remain
and the new complexities to which the new Treaty gives rise, plus
of course fact that the economic situation is far worse than it
was five years ago and that is bound to have an impact on the
political environment in which some of these issues will have
to be addressed. That was by way of introduction. If you would
like me to be a little more detailed, in the last five years under
the Hague Programme a lot of progress has been made in the home
affairs area, but I realise that the focus today will be more
on justice. I suppose the most remarkable event has been the successful
extension of the Schengen area to cover, essentially, today nearly
all of continental Europe. The only Member States not in the Schengen
area today are the United Kingdom and Ireland, Bulgaria and Romania
and Cyprus, all for different reasons, but the Schengen area has
been expanded to all the other Member States which joined in 2004,
and to Switzerland and very soon to Lichtenstein, with Norway
and Iceland already in there as well, and this has happened with
remarkably little fuss and considerable success in both organising
the management of the external border collectively and in providing
all the information exchanges within the Schengen area to make
the free-travel area work properly. In the justice area—coming
now to the details of the work of your Committee—we have,
I think, made some progress in the criminal justice field, we
have made some progress in the civil justice field, and we are
beginning to see progress in the other main area of our work,
which is to bring to bear modern technology to provide a better
and more comprehensive system of administration of justice between
Member States. In criminal justice the European Arrest Warrant
is usually held up as the great success story, which I think it
largely is. It is criticised today, in a way, for being too successful
in the sense that it is used too frequently and some critics say
too lightly in some circumstances, but it is used very regularly
as part of the normal administration of justice in our Member
States, and the time taken to surrender people across borders—we
try not to use the word "extradition"—has been
reduced quite significantly. In 2007 there were 2,667 effective
surrenders as a result of European arrest warrants and over 1,000
were registered through the Eurojust system, and that is an increase
from 192 in 2002. A lot of work has been done in that area. In
the civil law field we have brought in regulations on a European
small claims procedure and a European order for payment procedure
and harmonised rules on the law applicable to civil liability
and contracts under the so-called Rome I system. There has been
a good deal of development also in the international field by
the accession of the European Community as such to the Hague Conference
on private international law. That is producing results. In the
area of family law there has been a long saga about the applicable
law in divorce cases, which has not yet led to legislation, but
has led to an application by a large number of Member States for
the enhanced co-operation mechanism to be used. No decision yet
has been made on whether that should be done and the fact that
that application was made quite some time ago shows that it is
a sensitive issue which has required a great deal of careful consideration,
but certainly early in the life of the next Commission a decision
will have to be taken on that issue. Mutual recognition remains—and
I think the Stockholm Programme and indeed the Lisbon Treaty made
this very clear as well—at the heart of what we are trying
to do. We do not want to harmonise civil or criminal law for the
sake of it. Even if we did it would be extremely difficult. What
we want to do is to take the 28 legal systems of our Member States
and make them work together for the benefit of those who apply
the system and for the citizens and other people who live here.
The way to do that—and it is easy to say and hard to do
of course—is to bring about mutual recognition so that what
happens in one country is followed with little ado in all of the
others. Some progress has been made towards that but it is difficult
because our legal systems are very different one from the other,
and as the Union has grown in size we have more legal systems,
more legal families and a more complicated set-up. It used to
be said (and it was only a caricature in the first place) that
you had Napoleon on the one side and the common law on the other.
It is not as simple as that any more, if it ever was. We have
a wide range of legal systems and different legal traditions and
making them all work together is not an easy task, but that is
the task which the European Treaties have set for some time now—a
single area of freedom, security and justice—so I think
in a coherent but piece-by-piece, building block-by-building block
way we have set about assisting the emergence of mutual recognition.
It is always said, rightly I think, that mutual recognition requires
mutual confidence, which is not always a given, and that requires
a lot of work on training, a lot of work on simply explaining
one legal system and its particular traditions, practices and
terminology to the others, so that we all feel confident that
justice abroad is as good as justice at home. Perhaps I will stop
there.
Q89 Chairman: The inclusion of the
Roadmap, as you know, in the Stockholm Programme, particularly
when you explore what is involved, tends to suggest a rather longer
implementation period than five years. Does that make a five-year
programme rather a misleading concept? Is it a bit of a cop-out
or an honest admission that some of these things, if they are
going to be achieved, will only be achieved over a much longer
period?
Jonathan Faull: I am sure that
is right and that is why we acknowledge the importance of the
Roadmap and we do not think it is a failure if not everything
is done within five years. A lot of these issues, frankly, have
been around since Tampere going back to 1999, and no doubt a little
before, and a great deal of time is needed to bring them to fruition.
It is not simply a matter of proposing legislation and arguing
it through Council and Parliament. A lot of these issues are not
legislative at all; they are a gradual building up of mutual trust,
mutual recognition and the institutions; Europol and Eurojust.
I am quite sure that many of those issues will be with us in five
years' time and ten years' time.
Q90 Chairman: I have another point.
You might even guess the source. It was put to us that one of
the problems about the Hague Programme is that it presumed the
existence of the Constitution, which of course did not happen.
Was that really all that significant?
Jonathan Faull: I am trying to
think back to the mind-set in 2003-04. There is some truth in
it. I suppose the people writing it all the way up to the top
would have been reasonably confident that the Constitutional Treaty
was coming and that unanimity would be largely a thing of the
past, although no more, by the way, than under Lisbon because
the Lisbon Treaty—and I make no political point on this—is
similar to the Constitutional Treaty in its treatment of the justice
and home affairs issues, with some exceptions. Yes, we may have
been more optimistic and confident then, both politically and
economically, than we are now.
Chairman: Linda?
Q91 Mrs Riordan: To what extent do
you think that the sheer cost of e-Justice and video conferencing
initiatives inhibit the progress of criminal justice co-operation?
Jonathan Faull: To a certain extent
it does, but when you look at the figures and make an analysis
not only of the cost of setting up e-Justice systems but of the
savings it brings about, I think a happier picture emerges. We
do not yet have completely full details for all our countries.
I can give you some of the figures that we are working with. First
of all, the initial and rather modest start that we are making
to the e-Justice system, which is creating a portal which is really
a sort of front door to all the systems which exist or will be
developed behind it, we have a contract out for the first release
of the portal for 1.5 million euros and overall, if that works—
Q92 Chairman: That is a big "if",
is it not, in this field?
Jonathan Faull: Yes and no—and
the various incremental improvements come, we are talking about
a two million euro contract, which is a lot of money but not enormous
for a big IT project. The contract with Unisys is underway. There
have been some delays but we are assured by the contractor that
within the next month or two we will have the first delivery of
the system to show to Member States. We have asked a lot of the
countries involved to provide us figures with the savings that
they have made and I have some quite interesting information on
that. For example, Norway—a member of the EA, a member of
Schengen, a member of the European Judicial Network—ran
a pilot scheme in 2006. It is a big country with a relatively
small population. They are now installing equipment in 40 out
of 68 courts. Usage is steadily increasing and they calculate
that a video conference saves 785 euros every time it is used.
That is based on an average saving of 12 hours' travel time for
the people concerned. That is interesting. Austria tells us that
when they installed 11 video conferencing systems in their courts
back in 2002 there was an immediate saving of 80,000 euros per
year and now they have installed video conferencing facilities
in all courts and in many prisons as well. Of course, video conferencing
has been around for some time already but it is only one very
obvious feature of the application of computer technology to justice
systems. What is equally important of course is making databases
available, insolvency registers and that sort of thing, so a great
deal of work is done on that as well. It is hard to put a single
pound or euro figure on how much this will cost and how much it
will save, but the general view we are getting from pretty much
all Member States is that this is something that everybody is
doing to a different degree and feels the need to do together
in a European context because it does make justice quicker and
ultimately cheaper.
Q93 Chairman: Could I turn to the
European Arrest Warrant. You gave an indication earlier about
the value of it and we were talking to my colleague Graham Watson
earlier, who was very much involved in the earlier stages of bringing
it in, and he and I share enthusiasm for the concept, but it does
tend to be undermined by the cases which appear to show disproportionality
and the use of the mechanism in circumstances which would not
have been appropriate within the context of the nation state concerned.
Should this be resolved by further legislation or in some other
way?
Jonathan Faull: It is recognised
as an important and serious issue. If legislation is the only
way to resolve it, then legislation there will have to be. However,
I do not rule out that it may be possible, rather than amending
the rules, through training and sharing a common interpretation
of the rules, to deal with it in that way. We have undertaken
to organise a series of training sessions in Member States next
year and once we have done that and taken a lot of evidence and
understood better ourselves precisely where the problems arise,
we will have to consider what needs to be done. If it requires
a legislative proposal, no doubt there will be one, but at the
moment we would like to explore all alternatives before proposing
new legislation.
Q94 Chairman: And on the European
Evidence Warrant, to which the Commission attaches some importance,
can you help us to understand what it could achieve and what its
scope might be?
Jonathan Faull: The short answer
is that will depend on the result of consultation, debate and
impact assessment, which we will do. The ultimate goal is to help
the administration of justice by making sure that evidence located
in one country is not too difficult to obtain in another where
it is needed in a particular case. People often say to us that
it is ironical that it is easier to move people around Europe
under the European Arrest Warrant than it is to move things in
the form of evidence around Europe. At the moment we have a piece
of legislation, the European Evidence Warrant Framework Decision,
which is being implemented in Member States but is not yet fully
implemented everywhere, and there are Council of Europe conventions
alongside it which are also used to obtain evidence abroad. We
are told by practitioners (but this is going to be subject to
a lot of further investigation) that the current system is cumbersome
and difficult and not conducive to the best possible administration
of justice, so we will look at that. This is an analysis really
of the current law. We remember that when the European Evidence
Warrant was approved—and it required unanimity in the Council
for that to happen—we ended up with a piece of legislation
which contained a large number of exceptions to general principles
because most Member States wanted to keep something pretty close
to what they were already familiar with in their national legal
systems already. There is nothing wrong with that and I do not
criticise that as a starting principle, but it means that we end
up with legislation which has some rather resonant principles
and a large number of derogations for individual Member States
to carry on applying their own procedures. It may be that that
is good enough and that it works properly. We fear that it may
not and we will therefore carry out, no doubt next year, a more
detailed investigation before deciding whether or not to propose
new legislation.
Q95 Chairman: But the scope of it
is going to remain, presumably, evidence which is known to exist
and therefore does not require further investigation to find,
to be held by a public authority and therefore be accessible,
and you are saving the cost of sending somebody out there to find
it or bringing somebody over to testify in the court, or is it
more than that?
Jonathan Faull: It does not exist
yet so I cannot be categorical about the precise scope, but something
like that could well turn out to be necessary. If we can show,
and we will try very hard to find the data to do so, that there
would be savings involved and not additional expenditure, that
will make it, frankly, all the more likely that the legislation
will be passed, so we will try very hard to be establish that.
Q96 Chairman: Being devil's advocate,
I would have to say otherwise what is the point? There would be
no point if you could not either gain access to evidence which
you were prevented from getting into court by some international
barrier or were not saving the cost of having someone come over
and formally give the evidence where it can be attested in the
country concerned and transmitted and accepted to be valid evidence
to be put alongside the other evidence. If it is not doing either
of those things, it is difficult to see that it is worth the Commission's
time and effort.
Jonathan Faull: That is very persuasive.
Claudia Hahn: One of the main
objectives is precisely to study the possibility of having future
evidence.
Q97 Alun Michael: Could I just probe
that a little further and then go on to another question. Who
is it intended is going to be able to obtain evidence in this
way, for instance, the prosecution, the police, or the other enforcement
agencies, the defendant or the authorities or victims and their
families? Who is going to be the applicant, if you like? Or all
of those?
Jonathan Faull: Well again, that
remains to be seen. There are arguments for a very wide, comprehensive
set of beneficiaries if you like. Others may seek to limit that.
However, we are carrying out a major study on the laws of evidence
in each of the Member States which is about to be completed, I
think.
Claudia Hahn: We published a Green
Paper in November.
Jonathan Faull: And we published
a Green Paper which is out for consultation. There will be a meeting
of Member States on this on 9 February, and not only with Member
States but with a wider group of stakeholders as well, and then
we will think about what legislation and what scope it should
have.
Q98 Alun Michael: Does the Green
Paper make propositions on this or merely invite?
Jonathan Faull: It asks questions
and invites.
Q99 Alun Michael: It asks questions
rather than providing potential answers?
Jonathan Faull: Yes, it is a greenish
Green Paper!
Alun Michael: Yes. The issue of proportionality
has already been mentioned, but is the requirement of proportionality
something that needs to be dealt with at a European level or is
it something that ought to be put as a requirement for the individual
state to consider when implementing, or is it a matter, more in
a common law arrangement, for the judiciary to treat as we would
say as a matter of course? Where should that lie? The reason for
the question is obviously the critics are saying there may be
excessive use in some countries and so on.
Chairman: As with the arrest warrant
presumably?
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