12 European Protection Order
| (31634)
—
—
| Draft Directive on the European Protection Order
|
| Legal base | Article 82(1)(d) TFEU; QMV; co-decision
|
| Department | Justice
|
| Basis of consideration | Ministers' letters of 21 September 2010 and 15 November 2010
|
| Previous Committee Reports | HC 428-i (2010-11), chapter 24 (8 September 2010)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally important
|
| Committee's decision | Not cleared; further information requested
|
Background
12.1 The European Protection Order (EPO) is intended
to assist victims who have obtained a protection order in one
Member State and who subsequently move to another Member State.
The victim would apply (the EPO cannot be issued other than on
the wishes of the victim) for an EPO from the Member State which
issued the original protection order, and this EPO would then
be transmitted to and recognised by the executing Member State
to which the victim has moved. In the United Kingdom protection
orders are often used in domestic violence cases, although not
exclusively so. Other examples include non-molestation orders,
occupation orders (regulating who can occupy a property), restraining
orders and injunctions.
12.2 The Government opted into the proposal in March
of this year.
Previous scrutiny
12.3 When we reported on this
proposal on 8 September we concluded as follows:
"We fully support the Government in the
stance that it has taken on the scope of the legal base. As our
predecessors said before us, we do not agree with the argument
that Article 82 TFEU is an appropriate legal base because the
purpose of protection orders, whether issued in criminal or civil
proceedings, is ultimately to protect the victim from crime. We
think "proceedings in criminal matters" in Article 82(1)(d)
means exactly that, and cannot be interpreted to cover civil proceedings
in which the protection of a victim from crime is the objective.
"We are concerned by the Minister's reports
that a general approach was pushed through the JHA Council on
4 June in the face of opposition from some Member States; and
by the last Presidency's interpretation of Article 3(2) of the
opt-in Protocol. We would be grateful to the Minister for clarification
as soon as possible of whether the Council considers that a general
approach on this proposal has been agreed. We would also be grateful
for clarification of whether the Spanish Presidency's interpretation
of Article 3(2) of the opt-in Protocol is shared by other Member
States. The Minister's letter indicates that other Member States
objected to the general approach, in which case Article 3(2),
which can be applied only to the UK and/or Ireland, would appear
to be inapplicable.
"We thank the Minister for answering the
questions posed by our predecessors. We think the latest draft
of the Directive is an improvement in terms of clarity in how
an EPO will operate, of the grounds on which an EPO can be refused,
and of the safeguards provided to the person causing danger."
Minister's letter of 21 September
12.4 The Parliamentary Under-Secretary
of State for Justice (Mr Jonathan Djanogly) wrote to us on 21
September with further details of what transpired at the JHA Council
in June. Although there was no shared view on the outcome of the
June JHA Council, the Minister explains that the Belgian Presidency
did not take forward negotiations with the European Parliament
on the basis of any formal mandate or general approach from the
Council on that date. Instead, it waited for the European Parliament
LIBE (Civil Liberties Justice and Home Affairs) and FEMM (Women's
Rights and Gender Equality) committees to have an orientation
vote on their draft report and amendments on 29 September, which
would then give the Rapporteurs a mandate to begin negotiations,
on behalf of the European Parliament, with the Council.
12.5 As to whether the Spanish Presidency's attempt
to invoke Article 3(2) of the opt-in Protocol interpretation was
supported by other Member States, the Minister says that this
is not the case: there have been no indications in either official
or ministerial contact with other Member States that they interpret
the Protocol in this way.
Minister's letter of 15 November
12.6 The Secretary of State for
Justice (Mr Kenneth Clarke) wrote on 15 November to say that the
vote in the LIBE and FEMM committees went ahead as foreseen and
formal trilogue discussions between the European Parliament, Presidency
and Commission began on 25 October. The final trilogue is expected
to take place on 16 November ahead of a vote in the LIBE and FEMM
committees at the end of November. The Minister informs us that
the European Parliament has provisionally scheduled a vote to
adopt its amendments to the EPO at its plenary session on 15 December.
12.7 There are five main areas where the European
Parliament Rapporteurs believe amendment of the text is required,
and which are the focus of the negotiations between the institutions:
— Scope;
— Information provided for victims related
to the EPO procedure;
— Ensuring speedy processing of EPOs and
simplifying procedures;
— Guaranteeing adequate protection to minors;
and
— Collecting basic statistical data which
will be necessary to evaluate the efficiency of the EPO process.
The Minister deals with each of these in turn.
SCOPE
12.8 He reports that the Government's
view on scope, that currently it is wider than that permitted
by the criminal legal base, has not changed. The LIBE and FEMM
committees, however, voted for amendments that run contrary to
this position and maintain the broad scope of the Directive to
include civil orders as well as criminal ones. As a consequence
the Presidency, aware that this split the Council in June, has
deferred discussion about scope until the end of the trilogue
discussions.
12.9 The division in the JHA Council in June over
the question of scope precipitated a discussion of the use of
Article 3(2) of the UK's opt-in Protocol, the Minister says. Article
3(1) and (2) provide:
"1. The United Kingdom or Ireland may notify
the President of the Council in writing, within three months after
a proposal or initiative has been presented to the Council pursuant
to Title V of Part Three of the Treaty on the Functioning of the
European Union, that it wishes to take part in the adoption and
application of any such proposed measure, whereupon that State
shall be entitled to do so.
"2. If after a reasonable period of time
a measure referred to in paragraph 1 cannot be adopted with the
United Kingdom or Ireland taking part, the Council may adopt such
measure in accordance with Article 1 without the participation
of the United Kingdom or Ireland. In that case Article 2 applies."
The Minister says the Government believed it was
premature to cite Article 3(2) in June as the Council was not
being asked to adopt the Directive. It amounted to a threat to
eject the UK from negotiations prematurely whilst it was still
a willing participant in on-going discussions.
12.10 However, if the European Parliament adopts
amendments in mid-December that are acceptable to a majority in
the Council, and as a consequence of standing firm on the issue
of scope, the UK finds itself the "swing" vote in a
blocking minority, the Minister thinks "there will come a
point when the UK's ejection can be considered legitimately".
But the Government is clear that before Article 3(2) can be legitimately
invoked, "adoption" of the text must be in prospect
and the requirement that a "reasonable period of time"
has gone by must be satisfied; and he thinks that a "reasonable
period" cannot simply refer to an amount of time passing,
but must also refer to there being opportunities to resolve the
issue.
INFORMATION PROVIDED FOR VICTIMS RELATED TO THE EPO
PROCEDURE
12.11 The Minister explains that
the European Parliament has proposed an amendment that would make
Member States responsible for training, education and publicity
campaigns about the EPO. Whilst the Government has no objection
in principle to such campaigns it believes that they should be
at the discretion of Member States rather than prescribed in a
Directive.
12.12 In addition, he comments that there is already
a provision in the Directive that a person who receives a domestic
protection order will be told about the EPO and the basic conditions
of making a request. This is important as it will directly target
those potentially eligible for an EPO and will ensure they receive
the information they require. The Government believes that anything
beyond this should be left to Member States to decide.
ENSURING SPEEDY PROCESSING OF EPOS AND SIMPLIFYING
PROCEDURES
12.13 The Minister says it is
vital that procedures surrounding protection measures enable timely
protection of vulnerable people. Proposals from the European Parliament
suggest, however, that the issuing of an EPO should follow fast-track
procedures at national level. The Government is of the view that
the issuing of an EPO should not leapfrog or take precedence over
domestic protection measures. Requests for protection orders in
the UK, whether as the result of an EPO or not, need to be treated
in a timely way, taking into account specific circumstances of
the case including the urgency of the matter. The Government is
therefore opposing the European Parliament's suggestion to fast-track
EPO applications.
GUARANTEEING ADEQUATE PROTECTION TO MINORS
12.14 The European Parliament
has suggested an amendment that ensures the execution of an EPO
also covers the protected person's entire family. The Government
is content that if a family member had a protection measure granted
to him or her in national law, or was covered by the same domestic
order as the protected person, then he or she should be entitled
to apply for an EPO or be covered by the same EPO. The Minister
believes this to be the objective of the amendment; the Government
would therefore be able to accept it if amended.
COLLECTING BASIC STATISTICAL DATA WHICH WILL BE NECESSARY
TO EVALUATE THE EFFICIENCY OF THE EPO PROCESS
12.15 The European Parliament
has suggested an ambitious Article on data collection that goes
beyond the scope of the Directive by including the collection
of data on victims of terrorism and organised crime. The Government
opposes data collection that would increase the bureaucratic burden
on Member States and be disproportionate. It would be more sensible,
the Minister thinks, to restrict data collection to the sort of
information that would be easily obtainable from the EPO and that
is relevant to the Directive and its scope.
12.16 Finally the Minister says that he will keep
us informed of further developments in relation to this Directive.
Conclusion
12.17 We thank the Ministers
for their letters. We applaud the Government's approach to the
application of Article 3(2) of the opt-in Protocol — we
were surprised that the previous Presidency sought to invoke it
so prematurely but gratified that this endeavour seemingly attracted
little support from other Member States. We also support the Government's
stance on the circumstances in which Article 3(2) of the opt-in
Protocol can be invoked at this stage, and on the additional amendments
put forward by the two European Parliament committees.
12.18 We look forward to an update on the negotiations
after the plenary session of the European Parliament on 15 December.
| 
