Examination of Witnesses (Question Numbers
120-139)
JODIE BLACKSTOCK,
JAGO RUSSELL
AND NUALA
MOLE
8 DECEMBER 2009
Q120 Chairman: To the European Court
of Justice?
Nuala Mole: Which is no longer
called the European Court of Justice. Very confusingly, it is
now called the CJEU, and you will probably forgive all of us if
we continue to refer to it as the ECJ, because it takes a long
time to get those—
Q121 Alun Michael: No!
Nuala Mole: You will not forgive
us?
Q122 Alun Michael: I do not mind
if you use words but not initials.
Nuala Mole: Okay; European Court
of Justice.
Q123 Chairman: I have to say, some
of us were in Brussels yesterday and found it was normally referred
to as the European Court of Justice still, even by those in the
most senior positions there.
Nuala Mole: I think it is going
to take a long time for people to start calling it the CJEU.
Q124 Chairman: Tell us what CJEU
stands for?
Nuala Mole: Court of Justice of
the European Union.
Q125 Chairman: We are, incidentally,
not blaming you for any of these initials or details, but we need
clarity.
Nuala Mole: Absolutely. It is
even more confusing when they have, yet again, renumbered all
the Articles of the Treaties so we have to go and learn them all
again. It is a bit like being a taxi driver and they have turned
all the one-way streets the wrong way round. The thing that does
concern us, however, is that in Protocol 36 to the Lisbon Treaty—it
has many protocols, 36 being one them—Article 10 says that
for the next five years those states which had not already accepted
the jurisdiction of the Court in relation to cross-border criminal
justice matters would not have to opt in to the jurisdiction of
the Court, they could stay out for five years. At the end of those
five years, if they have not opted to be regulated and adjudicated
by the Court, they will have to opt out of the whole cross-border
justice system altogether. The reason why we are concerned that
this is happening is that this means that the decisions of the
European Court, which are binding on everyone, including the UK,
are made in cases which are coming from other jurisdictions and
which are often not presented with the clarity and expertise that
you might expect if they were coming from expert lawyers in the
UK who were representing people in the House of Lords. This is,
of course, not by any means true of all 27 jurisdictions, but
there are some jurisdictions of the EU that have less experience
in litigation in the European Court than others and less experience
in the sort of litigation and the quality of litigation we are
accustomed to see coming from our courts to Luxembourg.
Q126 Chairman: Is it not a bit patronising
and colonialist when we say that these lesser countries do not
do this properly?
Nuala Mole: Absolutely not. I
have spent most of the last 15 years working in those countries
and the judges and senior judges of the Supreme Courts will be
the very first people agree to with me that they have less experience,
particularly the ones who have only recently joined the European
system. They have only had two years of the opportunity to refer
cases to Luxembourg, whereas we have had 40. It is entirely to
do with experience; nothing to do with being patronising.
Jago Russell: I would like to
reiterate Nuala's comments about the continued inability to refer
cases to the European Court of Justice from the UK. In particular,
there are many questions that need to be addressed in terms of
the operation of the European Arrest Warrant and questions where
we could get a great deal of clarity by being able to have cases
referred from the UK to the European Court, and, unfortunately,
we are going to have to continue for a number or years without
clarification on those questions. In particular, there are issues
around proportionality and whether the European Arrest Warrant
should be used for minor offences.
Q127 Chairman: We will come to the
Arrest Warrant per se shortly, but perhaps you could clarify
what is it that is impeding our ability in this country to refer
matters directly to the European Court of Justice? Can you make
that point clear?
Jago Russell: Absolutely. It is
rather a complicated legal point, and I think Nuala has explained
it much better than I could already. Basically, for a long time
there has been an opt-out from a number of countries, including
the UK, on the ability to refer cases to the European Court of
Justice.
Q128 Chairman: It is our choice we
are talking about.
Jago Russell: And we have chosen
not to use the opportunity of the Lisbon Treaty to revoke that
opt-out; so it remains in place.
Q129 Chairman: What you are complaining
about is not what is in the Lisbon Treaty, except that the Lisbon
Treaty still enables the British Government to choose to opt out
of provisions under which it could refer these issues to the European
Court of Justice?
Jago Russell: That is absolutely
right. One thing, on a positive note, that I would say about the
Lisbon Treaty is we are very excited about the possibility of
engaging with the European Parliament more on legislation, particularly
in the area of fundamental defence rights, which it seems to me
should be the building blocks of a system of mutual recognition
across Europe. Because of the previous absence of powers of the
European Parliament in those areas, they have been unable to place
any pressure on Member State governments to agree these fundamentally
important instruments to protect defence rights across Europe
and, hopefully, now the European Parliament will have a more active
role in that area.
Q130 Chairman: Do you foresee any
difficulty arising from the fact that we are going to have the
Strasbourg Court and our own courts enforcing the European Convention
on Human Rights, or, indeed, applying the Convention to cases
which are brought to them and, at the same time, the European
Court of Justice applying the Charter of Fundamental Freedoms
and developing a case law around that which might be different
from the case law developing under ECHR?
Jodie Blackstock: I think the
starting point on that is that currently that is what Luxembourg
is doing anyway. The ECJ looks to Strasbourg whenever it is considering
issues that might have a European Convention on Human Rights angle
to them, and we saw that last year in the Kadi case, which
was quite seminal. It was a case concerning asset freezing in
relation to quite a number of organisations, in fact, that were
on a UN list of potential terrorists and, therefore, the UN Resolution
required the assets of those listed persons to be frozen. In the
Kadi case it was the Grand Chamber at Strasbourg, following
a decision of the Court of First Instance, which said we have
to, as a European organisation dealing with European Member States
(Member States of not only the EU but of the Council of Europe,
look at our obligations under the European Convention on Human
Rights. That obligation requires us to give people an opportunity
to make representations on whether they should be listed or not.
So the outcome of that hearing was that it was a breach of Convention
rights—the Article 6 right to a fair trial, to a hearing
being applied to the right to property contained in Article 1,
Protocol 1—not to be given that opportunity. There is a
whole raft of cases, which I am sure if Nuala needed to name she
could, of circumstances where the Court in Luxembourg has considered
the Strasbourg jurisprudence in any event. What the Charter does
is list in one comprehensive place the European Convention on
Human Rights, the obligations to consider human rights issues
under the Treaty on the European Union and the jurisprudence that
has developed within those courts. So it does not actually expand
upon the Convention rights in any event. In terms of what impact
that might have, certainly, in our view, the starting point for
the ECJ will be to look at what the Strasbourg Court has said
in terms of the minimum human rights implications of any implementation
of European legislation, and then, if need be, it can build upon
that. I think the thing to consider most importantly with any
jurisdiction of the ECJ is that when it is looking at the Charter
it is only looking at Member States implementing EU legislation
and the EU institutions drafting EU legislation. So its remit
cannot go wider into domestic legislation. That will still be
something that remains purely within the remit of Strasbourg.
Q131 Alun Michael: For clarity, is
every single reference to the ECJ to the European Court of Justice?
Jodie Blackstock: Yes, if it was
Strasbourg it would be European Court of Human Rights.
Q132 Alun Michael: It just could
be anything. Ever since the Rural Affairs Forum was referred to
as the RAF I have felt it wise to ask what a person who uses initials
is talking about!
Jodie Blackstock: I do apologise.
I cannot think that ECJ could mean anything else in this context.
Q133 Alun Michael: I bet it can.
Jodie Blackstock: It might well
do, but not in this context.
Q134 Chairman: Is it a potential
advantage, however, that, unlike the situation in the European
Convention on Human Rights where it depends on an individual case
finding its way to Strasbourg or being, effectively, enforced
in a national jurisdiction, within the European Court of Justice
infraction proceedings could be taken against a country for failing
to put in place appropriate measures and that this is a potential
bite which the European Convention enforcement process does not
have?
Jodie Blackstock: Historically,
the European Convention process initially was for that very purpose—it
was supposed to be an interstate convention—and the Court
in Strasbourg still has that jurisdiction, but the reality is
that Member States do not take cases against each other very regularly.
When we look back over the years, there have been few cases where
that has actually been the case. [To Nuala Mole—I am not
sure if you are disagreeing with me?] The benefit in the European
Court of Justice process is that an individual can, during the
course of a domestic proceeding, seek thier national court to
make a preliminary reference to the Court in Luxembourg for clarification
of how a piece of European legislation should be interpreted so
it occurs much sooner in the process. The problem we have with
Strasbourg at the moment is that it has 108,000 cases pending
before it and the average time is six years before you might get
a hearing. 95% of those cases (and this is me quoting Nuala and
the AIRE Centre's work anyway, and I am sure you will step in
if you wish to) are refused in any event. From a UK perspective,
they have been part of the EU, as opposed to the Council of Europe,
in this context. You have the possibility, if you were to take
this route now following the Lisbon Treaty coming into force,
of having much more speedy and effective justice in terms of the
timescale as to what the outcome of the Court's decision will
be. That is obviously yet to be decided, but given what we have
seen so far in terms of adhering to Strasbourg jurisprudence,
it may well be that cases that were brought arguing the Charter
will be more effective. The reality, as we have heard, is that
there is the transitional protocol anyway; so if the UK does not
opt in during the next five years we cannot use this process.
Nuala Mole: I think the concerns
that have been expressed both in committees in this House and
in committees in the House of Lords were about delays in going
to the European Court, which Jodie has just referred to, but also
about the European Court ruling on matters of criminal justice
which, essentially, had a very national characteristic. Those
are the concerns that have been voiced in relation to this. I
do not share those concerns because we are, in any event, bound
by the decisions of the European Court of Justice when it rules
on cases that have come from other countries about the meaning
of the European legislation, because that binds us even if we
cannot send our own cases there for adjudication by choice. The
Court of Justice has already had considerable experience from
asylum and immigration work moving from the third pillar to the
first pillar, and there have been a number of references to the
Court of Justice and infringement proceedings being taken in that
field. It is interesting that not only can British courts not
refer cross border criminal cases to the European Court of Justice,
(as it used to be called) in the manner we have described, but
also infringement proceedings cannot be taken in the Court against
the UK for its failure to comply with European legislation. The
one avenue that remains open for the UK to be brought before the
Court (and as Jodie Blackstock has said this is a fairly rare
phenomenon) is for an interstate case to be brought, but if there
was a very serious breakdown of the function of the cross-border
criminal justice mechanisms, in the way that we have seen with
the very serious breakdown of the cross-border asylum and immigration
mechanisms, it is not out of the question that a state might take
another state and, in that case, the jurisdiction of the Court
would not be excluded. That has not been put in what used to be
Article 35 of the old Treaty on the European Union. But I should
say that there are two other things that ought to be mentioned.
The Court (the ECJ) has in many cases in the last 15 years done
a comprehensive review of the case law of the European Court of
Human Rights and, in a recent decision called Elgafaji,
which was about what was the meaning of "serious harm"
when somebody was being returned to Iraq, the question that was
put to it was ( I paraphrase): did what was written in the Directive
mean the same as the corresponding prohibition in the European
Convention on Human Rights? And the Court went very painstakingly
through all the relevant jurisprudence of the European Convention
on Human Rights. But it emphasised that in interpreting a piece
of community legislation it must take into account, and not divert
or depart from, the jurisprudence of the Strasbourg Court, but
it must, nevertheless, give a community meaning to "community
provisions" because that is what it is all about; and I think
it reached a very wise decision, which no-one could take exception
to on the grounds that the court had thoroughly explored all avenues
making sure that both legal orders were kept together. Of course,
if and when the Fourteenth Protocol to the European Convention
on Human Rights is ever ratified—though we were told in
Strasbourg last week that it might be before Christmas—then
the EU will be able to join the Council of Europe and that will
bring with it its own interesting changes.
Q135 Mr Hogg: I want to be clear
about this. I am only a criminal hack, so I do not experience
the law at your levels, but as I understand what is being said,
it is something like this, that in respect of the matters that
fall within the competence of the ECJ, Convention rights, as they
have hitherto been interpreted by Strasbourg, will not prevail
against a contrary opinion by the ECJ. That is what I understand
you to be saying. Is that correct?
Nuala Mole: The ECJ, or the CJEU,
as it is now called.
Q136 Mr Hogg: Let us call it one
thing, please.
Nuala Mole: Can we call it the
ECJ? The ECJ will strive strenuously—
Q137 Mr Hogg: Maybe it will, but
am I right in saying that, ultimately, the ECJ has the power to
overrule Strasbourg with regard to Convention rights which fall
within the competence of matters which are within the jurisdiction
of the ECJ?
Nuala Mole: That is a very technical
lawyer's question you are asking me.
Q138 Mr Hogg: And I would like rather
a technical answer, please?
Nuala Mole: The technical answer
is that the judgments of the European Court on Human Rights are
not binding erga omnes. That means they do not bind everybody.
It is not like a decision of the House of Lords here, or what
used to be the House of Lords in the UK, which bound every other
court in the country. The decisions of the Strasbourg Court are
only binding technically, legally, in the particular case in which
they are held. So it would be very difficult for the ECJ to overrule
a decision of the Strasbourg Court as a matter of technical lawyers'
law. What is theoretically possible is that the ECJ could reach
a conclusion about the interpretation of a particular right that
was a different conclusion from the conclusion that would be made
by the Strasbourg Court, but there would not be a general problem
of conflict of case law on that, and, as I say, both Courts struggle
very, very hard to ensure that there is consistency and coherence
on this.
Q139 Mr Hogg: I think you are, nonetheless,
agreeing with me in this context, that if there was a matter within
the competence of the ECJ under the Treaty which gave rise to
rights of procedure or rights of representation which would necessarily
be affected by the Convention, it is at least possible for the
ECJ to pronounce a view, in that context, which provides a level
of right lower than that provided under the Convention as hitherto
it has been interpreted by the Strasbourg Court?
Nuala Mole: I think it might be
theoretically possible for this to happen, but in practice—
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