Examination of Witnesses (Question Numbers
100-114)
JONATHAN FAULL
AND CLAUDIA
HAHN
7 DECEMBER 2009
Q100 Alun Michael: Yes, but the same
thing could happen here.
Jonathan Faull: I think that is
right. We will have learned the lessons, frankly, of the expected
consequences of the arrest warrant. I do not think really people
saw some of what has happened coming. It is nice to be the victim
of your own success but if you are a victim there is a problem
and you have to correct it. I would say the proportionality arises
at two different levels. First of all, the legislation itself
has to be in proportion with the objective that it sets out to
achieve, and we have to meet that test, and under the new Treaty
national parliaments can call us to account, particularly on proportionality
grounds, and throughout the legislative process the European Parliament
and the Council will have to bear that in mind as well. Then when
the law is already in place the question becomes how do the judge
or the other people involved apply and interpret it? Again, proportionality
is a general principle of European law which should be applied
at all times, but I suppose some would say the experience of the
Arrest Warrant shows that it might be more prudent to write it
into the legislation to prevent over-enthusiastic use of the actual
wording, so we will see, but this will be a live issue in everybody's
minds.
Q101 Alun Michael: Turning to the
issue of Eurojust, what practical steps can be taken to strengthen
Eurojust and what are your thoughts about the relationship between
Eurojust and the European Judicial Network? Does that need to
be strengthened? Does it need to be closer?
Jonathan Faull: The basic Council
decision creating Eurojust, setting it up and governing it has
been revised and therefore Eurojust is undergoing changes and
is adapting to this new situation. We still believe that the Eurojust
members, who are national prosecutors appointed and paid by their
national authorities to co-ordinate cross-border prosecutions,
are still hampered by the fact that their powers at home, and
therefore their ability to interact with their colleagues in The
Hague, are very different and some level of minimum powers, which
the Council decision begins to introduce, seemed to us to be necessary.
They are also creating an on call co-ordination centre for 24-hour
seven-day-a-week decision-making and the Treaty on the Functioning
of the European Union, the new Treaty, provides that further steps
could be taken if necessary. On the relationship with the European
Judicial Network they should indeed have closer relationships
than they do now and the co-ordination between the Eurojust national
members and the contact points in the EJN should be improved so
that (and if only that) there is never any question about who
should do what. There should be a clear allocation of responsibilities
between them, which I am afraid is not always the case now. There
is scope for progress.
Q102 Alun Michael: Can I turn to
the issue of data. I am carefully not saying the issue of data
protection because I think there are two issues; one is data protection
and the other is the sharing of data. You expressed some concerns
to the Home Affairs Committee about progress on the protection
of personal data in the field of justice and home affairs. Do
you think a comprehensive scheme is feasible and where do you
see the balance lying between the need for data to be shared for
a variety of purposes, particularly the prevention of crime or
the detection of crime, and the need to protect data?
Jonathan Faull: There are a number
of issues there. What we have at the moment is a set of data protection
rules which on the commercial side of the fence go back to 1995.
The basic Data Protection Directive was set up in 1995 as an internal
market measure and only last year did the Council agree on a Framework
Decision for Data Protection in respect of criminal matters, essentially,
so we have these two items of legislation, to put it in pillar
terms, one for the first pillar, one for the third pillar, and
under those two instruments a great deal of work has been done.
Under the 1995 Directive each Member State has set up its own
data protection authority and legislation, and we have had, particularly
in the years since 11 September 2001, a lot of international experience,
too, in coping not only with exchanges of data within the European
Union but between the European Union countries and foreign states,
the United States in particular, but not exclusively, and reconciling
all of that with data protection too. Now that we have a unified
Treaty, and an opportunity to look again at both everything that
has happened in the commercial sector since 1995—Did we
have Google in 1995? Probably not. The world has changed a lot!
When I say Google, I use it as an illustration of companies.
Q103 Alun Michael: Generic like "pirate"?
Jonathan Faull: Generic, in a
way, it has become "I Google; you Google". I use it
as an illustration of a whole new business model which has arisen
of providing what look like free services but in fact take information
about us and exploit that information about us for commercial
purposes. I do not say that pejoratively. That is the way it works
and we all seem to submit to it in one way or another. All of
that has happened since 1995 and that requires another look because
there is public concern about many aspects of that. There has
been, for various reasons, a growth in the collection, storage
and sharing of information in Europe and between Europe and the
rest of the world for law enforcement purposes, brought about
by within Europe certainly the development and extension of the
Schengen area, which essentially replaces border controls by information
sharing between the police and other law enforcement bodies, and
beyond Schengen with the UK and Ireland as well of course, and
modern technology has made it that much easier for information
to be collected, stored, shared, investigated and so on. There
have been many calls in national parliaments in their committees
and in the European Parliament, and in civil society more generally,
for a fresh look at all of that. Now that we have (with all sorts
of differences which remain between the ex first and the ex third
pillar) one single Treaty, it seems to me that one of the tasks
of the next five years is to have another look at data protection,
given all we know about the world and the way it works and the
way in which balances are struck.
Q104 Alun Michael: One of the areas
of debate in relation to these issues is the impact of things
like Cloud computing going in, which will take us into a totally
new dimension again. One of the things that I am concerned about,
and I may have misinterpreted what you are saying, is it seems
to me that you always needs the balance between the protection
of data, which is an important consideration, and the use of data
in the interests of the citizen, for instance in fields like crime
reduction, and for there to be a balance in that. When we had
Peter Hustinx in front of us earlier he talked about moves towards
an information management model, which I think is the direction
we have gone in the UK, where you always have to have both the
data protection and the use of data in mind. Is that at the centre?
The reason I ask is because talking just about data protection
sounds as if only one side of that equation is being observed.
Jonathan Faull: No, absolutely,
I agree with Peter Hustinx. The work that you are doing in the
UK on an information management model is very much at the heart
of our thinking about what could become a European version of
the same thing, because the challenges are much the same. Policing
today is intelligence and information-led. Perhaps it always was
but it is more obviously the case that that is so today. The needs
of the police, the needs of the court system, the availability
of modern technology—Cloud and whatever comes after Cloud
that we cannot foresee today—plus public concern mean that
we need to develop a new way of thinking about data-sharing and
protection, not only as a balancing but more as a combination
of the two elements, using technology which can help in this respect
to protect data as well as make it easier to collect, store and
share it. Where things become extremely delicate, and these are
issues we face every day, is in the storing and therefore in the
retention of data about presumptively innocent people so that
those data are available in the event of some future investigation.
It is do you keep the haystack so that the needle can be found
one day? There the pressures are considerable on both sides of
the debate and it is right that there should be a proper public
debate about it, and since a lot of these systems are inevitably
European, if not international more widely, we have to sort this
out together, and that is very helpful.
Q105 Chairman: Just on data, how
is a European citizen to be satisfied if he or she believes that
data is held on them which may be incorrect, to check that data,
to enforce that it be made accurate and the record wiped if it
should not be there? What do you envisage for the future should
be the process and what is it now?
Jonathan Faull: Already way back
in 1995 the basic principles were set out. There is a right to
access and there is a right of correction, rectification or even
deletion if the data turn out to be wrong or past their retention
date. People need to know that data are being held about them.
There is a right to information and to provide consent, or withhold
it, although withholding consent in some of these areas, particularly
in the law enforcement area, is more difficult, and there is a
right so you know that data are being held about you and you need
to be told who is holding them, why, for what purpose, for how
long and you need an address that you can go to to find out what
is being held about you and correct it if mistakes are being made.
Q106 Chairman: Are you confident
that the machinery exists to enforce that right now? It does not
need any further machinery?
Jonathan Faull: The machinery
exists. We have set up in each country an independent data protection
authority with considerable statutory powers. In the UK it is
called the Information Commissioner, I think.
Q107 Chairman: Yes.
Jonathan Faull: And no doubt the
system is not perfect.
Q108 Chairman: We are talking trans-nationally
now within Europe about the situation where for example many people
in Britain receive unsolicited mail from companies based in other
European countries, often the Netherlands, and they might wish
to establish what the data source for this unsolicited mail was,
whether it contained accurate information, and obviously there
are examples of a more difficult kind where law enforcement agencies
may hold incorrect information which means that you are always
getting stopped going across the border. Are you content that
national data protection offices can effectively initiate processes?
Jonathan Faull: Yes, I am. They
are all independent and reasonably well-staffed. There is a common
legal basis for their activities under the Directive which has
then been passed into national law. They come together in the
rather inelegantly named Article 29 Working Party but they have
a collective existence and they talk to each other and they network
with each other. There is Mr Hustinx, the European Data Protection
Supervisor. There is the European Commission, which is ultimately
responsible for making sure that these rules are properly enforced
in the Member States, or we can take action in the Court of Justice.
We have, and this is certainly true when you look at less satisfactory
arrangements in other parts of the world, a well-functioning institutional
legal system to protect people's data.
Q109 Alun Michael: Can I just ask
about the victims issue. We have heard on a number of occasions
the interest in developments in relation to victims. I suppose
there are four different ways of highlighting the interests of
victims. One is the media approach which assumes that the interests
of victims are about hanging, flogging and doing nasty things
to perpetrators. The second is the approach that Victim Support
has argued to us as a Committee on a number of occasions, which
is what victims want to know, other than not to have become a
victim in the first place, is that neither they nor anybody else
is going to be a victim in the future. The other issue is the
way the victim is treated by the judicial system in court or as
a witness, or whatever. I suppose the fourth one is the issue
of restorative justice which can have benefit both for the victim
and for the perpetrator in terms of crime reduction. I am not
clear from the answers we have had from other people where the
victim concern comes in the developments that we are likely to
see over the next couple of years. It is a slightly rambling question
but I have found the answers we have had up to now have not clarified
it so I thought it might be as well to explain why the question
is being asked.
Jonathan Faull: I will try my
best. This is largely a matter for individual national criminal
justice systems and has not been the subject of much attempted
harmonisation across the EU. E-Justice can help. There are various
initiatives, some of which we have already discussed, which can
be used to help vindicate the rights of victims. Obviously video
conferencing helps victims, if only because they are not forced
to confront the perpetrator of the alleged crime, and that is
happening to differing extents from one country to another. Where
cross-border issues arise then our e-Justice project should help
a victim in one country give evidence in another without having
to travel all the way and see once again the perpetrator. That
can assist. The recovery of damages by a victim also can be helped
by all the work we are trying to do on mutual recognition. If
an award is made to a victim in one country it should not be more
difficult for that award to take effect just because the victim
is the other side of a border. There are various things that we
can do to help. Will all of this be brought together in one great
European victims policy? I do not know, frankly. If my new Commissioner
asked me to pull all of this together into an statement "What
can Europe do for victims of crime?" there is a lot of substance
that we could explain. Maybe we should bring it together as a
policy because it is something which people are rightly worried
about and where I think there are some things we can justly explain
as being European added-value to the national legal systems.
Q110 Chairman: Can I briefly turn
to another issue which is whether there is potential for divergent
jurisprudence to develop between the Charter of Fundamental Freedoms
as interpreted in the Luxembourg Court and the European Convention
on Human Rights in Strasbourg. We have explored one are two potential
examples of it this morning. For example, the interpretation rules
which it is proposed to develop under the Stockholm Programme
might provide an example. It is interesting that when I put it
to witnesses, they came out with two different assumptions, one
assuming that the European Court rules might fall short of the
Strasbourg rules and the other that they might be in excess of
them, but in at least one of those cases there is a potential
confusion and probably in both.
Jonathan Faull: I am reasonably
sanguine about this. First of all, for decades now the European
Court of Justice, Luxembourg, has been applying human rights law,
both a catalogue of rights that it has developed itself but also
the European Convention on Human Rights as such, and although
there has often been speculation about divergence or clash between
Luxembourg and Strasbourg, it has not really happened. That does
not mean it will not happen in the future because the Charter
is the new element of course. However, there is another new element
as well which is the possible accession of the European Union
as such to the European Convention. We certainly hope that will
happen rather soon and the new Treaty makes it possible for that
to happen, so the EU as a whole and its institutions will be bound,
as its Member States are now, by the European Convention. I think
that should also make divergence quite a lot less likely. I have
no doubt that both Courts are well aware of the dangers of—
Q111 Chairman: But they are interpreting
different documents, are they not?
Jonathan Faull: They are interpreting
different documents but the Court of Justice, once the EU accedes
to the European Convention, will be applying the Convention fully
as well and will be bound by it and will use its interpretation
of the Convention to inform its interpretation of the Charter.
I do not think anybody can give you a guarantee that there will
not be divergence, just as nobody can give you guarantees about
the future relationship between national constitutional courts
and the two European courts, but just last week the Presidents
of the two Courts attended a lunch given by the justice ministers
in the Council and you will not be surprised to hear—and
I am not sure that I should say this on the record but it is pretty
anodyne—they both said of course that every effort would
be made to proceed together and not in any conflict. So who knows
what the future holds, but I think both the past record and the
prospect of the accession of the Union to the European Convention
should mean that there will be harmonious development.
Q112 Chairman: We were given the
impression by several people that this could be a rather long
process. I do not think anybody disagrees with it but the sheer
mechanisms—
Jonathan Faull: Of the accession?
Q113 Chairman: —And the other
decisions that flow from it.
Jonathan Faull: That is true.
Nobody can tell you, nobody can tell me how long the process of
accession will take because it requires both our approval and
the Council of Europe's approval, and even though the legal mechanics
are not complicated, as you say, the political environment may
be. The long relationship between Strasbourg and Luxembourg also
has a vista ahead of it of years of development. There may be
hiccups but, as I have said, so far this is not completely new
territory. Both courts have moved essentially in a parallel way.
Q114 Chairman: And is there a timescale
for the proposed Directive on transfer of proceedings in criminal
cases?
Jonathan Faull: The short answer
is no, if only because the pending proposal under the third pillar
died on 30 November and will now have to be revived as a proposal
for a Directive under the Lisbon Treaty. We will do it as fast
as we can responsibly, but nobody can say exactly when it will
happen.
Chairman: Thank you very much indeed,
Mr Faull, and your colleagues, for joining us this afternoon.
We very much appreciate the care you have taken in giving evidence
to us and it has been extremely helpful to us in formulating our
ideas and our response to what is happening in terms of justice
co-operation. Thank you very much.
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