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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 162-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE JUSTICE COMMITTEE
LORD BACH, MR DANIEL DENMAN, MR EDWIN KILBY and MS EMMA GIBBONS
Evidence heard in Public Questions 231 - 276
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Justice Committee on Members present Sir Alan Beith, in the Chair Rosie Cooper Mr Douglas Hogg Mrs Siân C James Alun Michael Julie Morgan Mrs Linda Riordan Mr Andrew Turner Dr Alan Whitehead ________________ Witnesses: Lord Bach, a Member of the House of Lords, Parliamentary Under-Secretary of State, Mr Daniel Denman, Assistant Director, Information and Human Rights Team, Legal Directorate, Mr Edwin Kilby, Head of European Policy, Ministry of Justice and Ms Emma Gibbons, Head of EU Section, Home Office, gave evidence. Q231 Chairman: To save time I will quickly welcome Mr Denman, who is Assistant Director for the Information and Human Rights Team in the Legal Directorate; Mr Kilby, who is Head of European Policy at the Ministry of Justice; Ms Gibbons, who is Head of EU Section, Home Office. Welcome to you all. Lord Bach, everybody else changes but you remain. At a recent European Commission conference the Parliamentary Under-Secretary, Meg Hillier, claimed that the UK Government "punches above its weight" in justice and home affairs. Can you quickly illustrate how we do that? Lord Bach: I will do my best. I think
she was absolutely right. The conference
was organised by the European Commission in conjunction with King's College and
the flier for the conference rather provocatively perhaps argued that the UK was ambivalent about
justice and home affairs, a context in which the Minister argued in her speech
that this was not the case and that in fact we are firm enthusiasts and we wish
to be at the heart of JHA (justice and home affairs). There are examples which we can certainly
give where we can argue that we have punched above our weight. There have been notable results in the
context of negotiation, and we will come to the Stockholm Programme perhaps a
bit later on. Can I just give some more
specific examples? We advocated a
European Small Claims Procedure for many years and gave priority to its
negotiations during out own Presidency in 2005; that came into effect last
year. We think it does help citizens
conduct business across borders. We have
helped to ensure that financial penalties are enforced across the EU Member
States by leading on a proposal for a framework decision on the mutual
recognition of financial penalties. We
have influenced the EU's counter-terrorism agenda and the Q232 Chairman: Can I turn to what would be the general principles which will
govern the Lord Bach: I will start by saying that we wish to play a full part in JHA
affairs in the EU, subject of course to safeguarding our national interest and the
retention of border controls. We look at
each proposal positively. Jack Straw is
on record as having said that we will opt into the maximum extent consistent
with our national interest. With 2.2
million British citizens living in other Q233 Chairman: Can you just remind me what that was? Lord Bach: That is
the choice of law in contract issue.
After the proposal was issued interested parties expressed their
concerns. It was believed it could lead
to significant levels of legal uncertainty in complex multi-party international
contracts. It would not have affected
just us but the EU and the most likely beneficiary would have been Q234 Chairman: We have this quite complicated situation where, if an existing framework decision is repealed or amended by a future Directive we can opt out because it moves in a direction we are no longer happy with. If that happens would you expect us to suffer sanctions as a consequence? Mr Kilby: Under the
terms of the Lisbon Treaty, as you rightly say, one of the matters that was
secured was an amendment to our opt-in protocol making it clear that the
protocol applied to amending measures so that the Q235 Mr Hogg: Why should our failure to participate render something inoperable in other Member States? Mr Kilby: I think if there were a system of rules built up on something like jurisdiction - which country's court should have jurisdiction in a cross-border contract for example - if we failed to participate in something which made significant amendments to those rules it might over complicate the rules for everybody else too much. Q236 Mr Hogg: It strikes me that there is a hole in the net which means the net is not
comprehensive. I do not see so far as
other countries non-participation by the Mr Kilby: I absolutely agree and this is why I was saying that I think that the threshold for inoperable is a very high one. Q237 Chairman: This is something for which no-one has as yet found a convincing example. If you find when you get back to the office that you can give us an example perhaps you can let us know. Mr Kilby: If I may say so, that is a good thing, is it not, because it means we are less likely to be ejected if we do not participate in the amending measure. Q238 Chairman: On a quite different point, Article 83 of the Treaty identifies a series of crimes for which minimum sanctions could be devised at European level. It is quite difficult to approximate sanctions and what challenges do you foresee in the UK Government's ability or willingness to opt into such legislation which could of course impinge on our whole domestic approach to these things? Lord Bach: I will start by saying bluntly that we are not going to have a harmonised code of
criminal law throughout Q239 Chairman: We have
two systems; there is one in Lord Bach: You are
absolutely right, I mean in Q240 Mr Hogg: Is there a judicial discretion as regards to the minimum? Lord Bach: No. I do not think minimum sentences are touched. This is a maximum sentence but it is the very least a maximum sentence can be. Q241 Chairman: In other words it should be possible to inflict a punishment up to a certain maximum but there is no minimum. Ms Gibbons: That is correct. The general approach that has been taken to date is that all Member States must have in their law the availability of a sentence. It is then down to the judge in an individual case to exercise his discretion whether to use that in the individual circumstances. Q242 Chairman: Turning to one last point on the European Court of Justice, we get involved in the European Court of Justice as a state from time to time. The question as to whether individuals and parties get involved is one thing into which we have not opted, as I understand it. What is the Government's position about the possibility of opting into the jurisdiction of the European Court of Justice within the five-year window which the Lisbon Treaty provides? I appreciate the five-year window raises interesting possibilities about governance, but what is the present Government's position on this? Lord Bach: We think we ought to wait and see is the way I would put it. The worst thing we could do at the moment is to jump in and make a decision either way on this. Q243 Chairman: What are you waiting to see? Lord Bach: I think we are waiting to see what new measures there are or may be proposed. We are waiting to see how the existing measures work out. Ms Gibbons: I do not think there is much to add to that. One of the things we negotiated was to have that period to consider whether or not we would wish to accept ECJ jurisdiction. I believe we have until June 2014 to make that decision and therefore we would want to see, not least for example, how the Stockholm Programme influences the direction of the EU measures in this area where for example some of the existing measures may be repealed and replaced in that period, where our individual opt-in will apply and we can consider then whether we would wish to participate in those new measures. Q244 Dr Whitehead: The Stockholm Programme has been described as "sensible and ambitious". What do you think are the most ambitious aspects of the programme? Is it sensible that a programme should be quite so ambitious? Lord Bach: One of the
reasons that we are such supporters of the Stockholm Programme and the Roadmap
that flows from it is because it does not have the sort of ambition - the sort
of ambition that we occasionally I think see in the EU context - which is great
pronouncements and great attempts at legislation in fields where perhaps there
is not an evidence base for it and we are delighted because we think it is
practical and down to earth, and deals with real issues for citizens in the
EU. I hope it is not boasting to say
that we did have quite an influence in pushing forward this kind of programme,
one that lived in the real world and was practical. It contains, as you know, a number of
proposals to ensure that children are safe.
It ensures that all EU states prioritise practical action to prevent
radicalisation and develop and improve systems to counter terrorist activities;
adopt an organised crime strategy; gain access to civil justice in another Q245 Dr Whitehead: What would
you say were the biggest wins for the Lord Bach: There are a
number of them, and of course we have to see how it plays out in the next
number of years. It includes a whole
chapter devoted to external relations for the EU; the importance of EU work
with Q246 Dr Whitehead: We have the description "putting the citizen at the heart of co-operation" which the Stockholm agreement is described as doing, how would you interpret that from the UK's point of view? Lord Bach: I hope in the manner I have tried to describe. I think the Roadmap on criminal procedural rights is very important on that. Ms Gibbons: From our perspective it was very much about looking at what practical outcomes there could be for citizens on the ground. A lot of this feels somewhat detached at times and it was about re-focusing on really bringing those benefits and saying that this is going to help people, whether that is from the public protection angle or facilitating those who wish to work overseas. One of the major things, for example, the UK pushed for and was focused on as regards citizens' lives was the child protection agenda and the mechanisms for ensuring we could get information on convictions, we could react in cases of abduction and deal with people who are disqualified from working with children. There were numerous others. Obviously the idea of legitimate travel, supporting people who want to work overseas with some of the practical measures - for example, as the Minister has already mentioned, around enforcement of judgements - to help people who wish to take advantage of the right to free movement across the EU. Q247 Dr Whitehead: Is there
not a criticism of all these really quite rapid developments of mutual
recognition and cooperation levels that is going to lead to exponential
escalation of costs? Is it right that
these measures should be pursued regardless of costs, particularly in a period
where, across Lord Bach: It is a
very important question. As far as the
Roadmap is concerned, dealing with procedural rights, we believe that our legal
system really has some pretty high standards.
I can say that with some clarity I hope.
We do not expect the implementation of the Roadmap to necessitate
significant costs for the Q248 Dr Whitehead: You mentioned that we were ahead of the game in terms of standards of detention, for example. Does that imply that the Roadmap does not go far enough in protecting those fundamental rights for suspects and defendants? Lord Bach: We think the Roadmap as it stands in the Stockholm Programme can make real improvements in protecting defendants' rights across the EU. We do like the step-by-step approach of the Roadmap; we consider each area of procedural rights in much greater detail than some grand scheme of the kind we have sometimes experienced before. We also believe that the measures in the Roadmap cover areas where the EU could bring real benefits to defendants. Research shows clearly what I think we already knew, that there are large discrepancies between how Member States have implemented fair trials rights under ECHR and the safeguards they provide by promoting minimum standards in areas like interpretation and legal advice and that should protect defendants' rights better. We welcome the Roadmap as the basis for future action, but we do not rule out - this is answering your question - procedural rights measures in other areas as well; we will consider them on merit of course. We would, for example, support sharing best practice in recording defendants' statements by the police, which is not something I believe is in the Roadmap at the present time. We have not shut the door. Q249 Chairman: Did you say you would or would not support sharing best practice? Lord Bach: We would support sharing best practice. We would look to try to add that if that was appropriate. Q250 Mr Turner: What is the amount in cash that your entry in the Stockholm Programme cost? Mr Kilby: It is
impossible to cost the entire Programme; you need to look at it measure by
measure. When you consider that under
the terms of the Lisbon Treaty the Q251 Mr Turner: So we do not even know whether it would be in favour or against us, as it were? Mr Kilby: As the
Minister has said, the content of the Stockholm Programme is something which
the Government has welcomed. We think
there are a lot of measures in there which, had the Mr Hogg: It does have a net cost in terms of public expenditure and a net cost across the private sector. All Andrew is asking is what sort of figure it is. Q252 Mr Turner: Perhaps we do not know. Mr Kilby: As I say, I think it is impossible to cost the entire
Programme. We do not know, for example,
the extent to which the Q253 Mr Hogg: Let us have the bits you do know. Mr Kilby: What we are saying in relation to the Roadmap on criminal procedural rights is that we consider that to a very large extent - and possibly in total - the procedural rights for criminal defendants that we have in place in this country lead the way in Europe and it is highly likely that the UK will not need to incur any costs let alone significant costs. Mr Hogg: Did Lord Bach, when he got his submissions from officials advising him as to the net cost of signing into A, B and C, have or not have an assessment of the net costs to the Department? Q254 Chairman: You have not opted into anything yet. Mr Kilby: Not yet, but watch this space. Q255 Chairman: It is a perfectly good question. In the original opting-in proposal would you have an impact assessment which includes costs? Mr Kilby: Presumably there will be an impact assessment. Ms Gibbons: Certainly at the moment when we decide whether or not to opt into legislative proposals that fell out, for example, of the last work programme - the Hague Work Programme - in each case we would make an assessment of the financial costs, the impact on legislation et cetera and that would all be weighed up in the decision as to whether or not we participated. I think when each of them is provided to Parliament under normal scrutiny arrangements there is a section which asks for financial implications so we have to give a sense of it there as well. Q256 Alun Michael: Could I ask a couple of questions about the European Arrest Warrant which we have taken some interest in and have taken some evidence on? Are you satisfied with the current situation, particularly in relation to proportionality? Lord Bach: There has not been a formal review of the Extradition Act. Q257 Alun Michael: I was asking about the arrest warrant. Lord Bach: One issue
around the European arrest warrant is the issue of proportionality and we are
still concerned really in relation to one country, Q258 Alun Michael: Including proportionality as regards costs? I know you were not able to give us an estimate when we last asked about this, but there have been figures that have been given, for instance an Irish judge, Jago Russell, gave an estimate of about 25,500 euros per case. Ms Gibbons: Certainly when I have spoken to my colleagues we have not got the figures on how much each arrest warrant costs to enforce, mainly because there are so many factors involved in making that decision. Obviously it involves various elements of the criminal justice system. I am afraid I cannot comment on that figure. We looked into this and we have not managed to come up with our own figure for the European arrest warrant. On the issue of proportionality itself, as the Minister said it is the one issue that continues to cause us concern and we are seeking to deal with it proactively through the Council and with the Commission. Q259 Alun Michael: Part of the problem seems to be the difficulty in getting comparability so that you have proportionality across a variety of different legal systems. Ms Gibbons: I think the operation of the arrest warrant within legal systems seems to have been what has generated the specific proportionality issue we are seeking to deal with where, as the Minister has alluded to, Poland have a legal system which seems to require them to send arrest warrants for issues that we would not consider appropriate and it is getting to the heart of that issue and seeking to educate people on when the arrest warrant should and should not be used. Q260 Alun Michael: Is that the sort of concern that you would want to see addressed if the framework decision on the European arrest warrant were to be amended, and have you any other concerns that you would seek to be addressed that way? Ms Gibbons: I think that would be our principal issue. We do not actually think that the best way to address it is to re-open or re-negotiate the framework decision. That was an option that was considered with other Member States in the Council and most conceded that it was not the appropriate course of action at this point in time, there were other solutions we could use. If the Commission were to bring forward a proposal then I think that would be an issue we would push to be resolved. Q261 Alun Michael: What is the answer? Is it a question of individual countries addressing their own issues of proportionality? Ms Gibbons: Yes. It is making sure that when Member States are issuing arrest warrants through their prosecutors and their judges there is an understanding about what is appropriate and when the European arrest warrant should be used. Q262 Alun Michael: Does that come down to the Ms Gibbons: We are pursuing both channels. There have been bilateral discussions and work within the Council across Member States. Q263 Alun Michael: Has there
been any evaluation or review of the Extradition Act 2003? I am thinking of the provision for category
one territories such as the EU and Ms Gibbons: There has not been a formal review. Our estimate is that the Extradition Act actually works very well. That said, there was considerable parliamentary scrutiny of the Extradition Act last year. There was a small amendment to it made in the Policing and Crime Act 2009. It was also debated on the half-day Opposition debate in the context of the UK-US Extradition Treaty. I believe the Home Affairs Select Committee has also taken evidence on it recently. So whilst we have not actually formally sat down and reviewed it, there has been considerable consideration of it. Q264 Alun Michael: There has been a lot of reviewing rather than a review? Ms Gibbons: Yes. Q265 Alun Michael: Has the Government made any projections on the likely demand for European arrest warrants over the next five years? Ms Gibbons: I certainly am not aware of that but I can check back with the Department. Q266 Alun Michael: If there were to be any increases that would have an implication for resources. Have you made any plans to cope with the possibility of an increase in use of the warrant? Ms Gibbons: I am not aware that there is any projection that the use will go up. As I say, I would have to check back with my colleagues on that and we can certainly write if that is the case. Q267 Alun Michael: If you could clarify that it would be helpful. You referred earlier to the question of review, do you have any specific concerns about adopting a new measure to replace the European evidence warrant? I am asking that because there appear to be a couple of initiatives at the moment such as the European Commission Green Paper on the gathering and admission of evidence and there is also the likelihood of the Belgians leading a Member States' initiative on the introduction of a European investigation order. Does that lead to any concerns? Ms Gibbons: We are
certainly expecting a proposal which will repeal and replace to some extent the
existing evidence warrant and other mutual legal assistance arrangements across
Lord Bach: I spoke to the
Belgian Minister in an informal bilateral last Friday in Q268 Alun Michael: I am sure you encouraged him in that exchange; did he encourage you? Lord Bach: We both encouraged each other. Q269 Alun Michael: I believe
that you called for an information management and data protection
strategy. Do the proposals in the
Stockholm Programme for a data protection strategy strike the right balance
between data protection and data management and utility from technology and the
protection of privacy? When we had a
session with the European Data Protection Commissioner we did end up the
session feeling that it was rather more of information management than the
title would suggest and therefore closer to what in general the Lord Bach: Let me just say what the top lines for data protection and information exchange are for us (these will be fairly clear and obvious to the Committee): duty to protect the public as well as privacy and there is no reason why we cannot do both. The second point is that better information sharing is key to a secure EU and at the heart of preventing, detecting and investigating serious crime and protecting our borders. Thirdly, where it is necessary and proportionate to share data for public protection purposes then it cannot take place without appropriate data protection safeguards. We have a real duty to exchange information safely and responsibly. Mr Denham: On the Stockholm Programme our position is that we fully support the emphasis
that is placed in the Stockholm Programme on having more co-ordinated
information exchanges. As the Minister
says, it is also very important to make sure that the correct balance is struck
between, on the one hand, having co-ordinated information exchange and, on the
other hand, ensuring that better data protection is respected and
promoted. The Q270 Alun Michael: We would understand
that as the Mr Denham: We are
aware that a proposal for a revision of the Data Protection Directive is likely
to happen. As I think you have heard
from the Minister before, the Q271 Alun Michael: In that context do you think the EU currently places too much weight on technological safeguards to ensure that personal information gathered for one purpose is not used illegitimately for another purpose? Mr Denham: Our position is that the core provisions and the core principles in the Data Protection Directive and the Data Protection Framework Directive should work across all technologies and they have largely stood the test of time. It may occasionally be necessary to introduce new provisions in order to deal with particular technological advances but again it is very much on the basis of considering the evidence and ensuring that those provisions continue to work in a technologically neutral way. We are very open to considering what changes may be proposed and how those changes might help to streamline provisions, but we need to be convinced that there is evidence of gaps and difficulties in the present provisions before we get to that stage. Q272 Alun Michael: You probably saw the outcome of the discussions that we had with the European Data Protection Supervisor, Peter Hustinx. Would it be beneficial or feasible to merge the existing supervisory systems for data protection at a European level, especially in the light of your comment about being neutral across different technologies? Mr Denham: We have
spoken to the Information Commissioner's Office to clarify what it was that he
was referring to when he made those comments.
As we understand it, he was not talking about a merger of all data
protection authorities across Q273 Alun Michael: It is a process you are actively supporting? Mr Denham: If a proposal comes forward. For example, one possibility is the working party under Article 29 of the Data Protection Directive and that working party can only consider matters falling within the first pillar because that is the remit of the Data Protection Directive. There is no equivalent in the Data Protection Framework Directive although there are other possibilities for supervisory arrangements and if it were possible to create a single supervisory mechanism that could look across all of those areas then that is something we would be open to in principle. Q274 Alun Michael: You may be open to it, but are you arguing for it? Mr Denham: We would support any proposal that would ensure that there are more harmonised, effective and streamlined mechanisms for supervision at European level. Lord Bach: We would give it cautious support. Alun Michael: I was thinking you did sound a little cautious. If that is an aspect that our witnesses would like to supplement, I think it would be of some interest. Q275 Chairman: The UK Government is currently up before the Committee of Ministers regarding the failure to act on the European Court of Human Rights ruling relating to denying prisoners the vote which is regarded as a breach of the European Convention on Human Rights. What position is the Government taking in these discussions? Is it having some difficulty in explaining the progress it has made during the last five years on this issue? Lord Bach: I do not
think it is having much difficulty in explaining its position. We remain committed to implementing the
judgment. As you will know, we completed
the second stage of a two-stage consultation at the very end of September last
year which set out a range of options for prisoner enfranchisement based on
sentence length as well as of course difficult questions on the practical
aspects of how you implement such a policy.
We are considering our responses to the second stage consultation and
then we will consider the next steps towards implementing the judgement in
legislation. We do think this is a
matter for primary legislation. It is a
matter of great concern to people in the country and we think the only way of
properly dealing with it is primary legislation to see what the House of
Commons and Parliament generally think about it. I must say that the judgement itself did
recognise that the Q276 Chairman: It would be the next Parliament and not this one I take it. Lord Bach: There is not likely to be enough time for legislation to go through Parliament before a general election has to be called. Chairman: Thank you very much Lord Bach and your colleagues. |