24 European Protection Order
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17513/09
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(b)
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Draft Directive on the European Protection Order
Draft Directive on the European Protection Order
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| Legal base | Article 82(1)(d) TFEU; QMV; co-decision
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| Department | Justice
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| Basis of consideration | Ministers' letters of 30 March and 10 June; EM of 10 June
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| Previous Committee Reports | (a) HC 5-x (2009-10), chapter 5 (9 February 2010) and HC 5-xi (2009-10), chapter 4 (24 February 2010); HC 5-xviii (2009-10), chapter 5 (7 April 2010)
(b) None
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| To be discussed in Council | October
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| Committee's assessment | Legally important
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| Committee's decision | (a) Cleared (b) Not cleared; further information requested
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Background
24.1 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.
Previous scrutiny
24.2 The previous Committee reported on this proposal on three
occasions.[102] On
the last it noted that the Government shared its own reservations
about whether the legal base could cover protection orders made
in civil proceedings; thanked the previous Under-Secretary of
State at the Ministry of Justice (Lord Bach) for the indication
that the UK would opt into the proposal; asked for an update on
developments in the negotiations; and asked for confirmation of
whether the EPO would only apply to interim as well as final judicial
decisions, whether the "person causing the danger" would
enjoy full procedural safeguards, and how the Government intended
to implement the duty imposed in Article 5(3) to inform all those
who benefit from a protection order in the UK of the existence
of an EPO.
Minister's letter of 2 March
24.3 The previous Minister wrote again on 30 March informing our
predecessors that, despite continuing disagreement among Member
States on the legal base, the UK had opted into the proposal as
it supported the legislative aim and thought it could better influence
the negotiations once it had opted in.
Minister's Explanatory Memorandum of 10 June
24.4 This Explanatory Memorandum from the Lord Chancellor and
Secretary of State for Justice (Kenneth Clarke) relates to the
latest draft of the Directive (document (b)), deposited in Parliament
on 25 May.
IMPACT ON UNITED KINGDOM LAW
24.5 The Minister states the intention of the EPO
is to bridge two domestic protection systems as opposed to requiring
Member States to make significant changes to their existing systems.
Article 8 states that once a Member State has received an EPO,
it shall recognise that order and take a decision to adopt any
similar protection measure under its own national law. Article
9 enables Member States to refuse to recognise an EPO in specified
circumstances including where the protection measure relates to
an act that does not constitute a criminal offence in the executing
State. England, Wales and Northern Ireland would need to pass
legislation to enable Magistrates' courts to convert domestic
protection measures into EPOs and to issue domestic protection
measures in respect of EPOs received from other Member States.
It is likely that a similar provision would be required with regards
to Scottish procedures.
FUNDAMENTAL RIGHTS ANALYSIS
24.6 Recital 12 states that the draft Directive conforms
with Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms and with Article 47, paragraph
2, of the Charter on Fundamental Rights of the European Union
because it provides the person causing danger with adequate opportunities
to challenge the protection measure. Article 5(3bis) ensures that
before the EPO is issued the person causing danger shall be given
the right to be heard and the right to challenge the protection
measure, if he has not had these rights in the procedure leading
to the adoption of the protection measure.
SUBSIDIARITY
24.7 The EPO deals with continuous protection of
vulnerable people who cross borders. The Minister states that
the recognition of protection orders in different Member States
can only be achieved at EU level and that there is currently no
other instrument which deals with the recognition of protection
orders between Member States from the perspective of the protected
person.
POLICY IMPLICATIONS
24.8 The aim of the draft Directive is to provide
continuous protection to vulnerable people who move from one Member
State to another. The Minister says that the Government fully
supports that principle. However, due to its concerns about the
scope and legal base of the proposal, as currently drafted, it
is unable to vote in favour of the current text. He explains that
this Explanatory Memorandum therefore outlines the Government's
position on Article 1 which deals with the scope of the instrument
and some of the consequent issues with legal base. It also sets
out the main changes that have been made to the text since the
original text and accompanying EM were sent to Parliament in January.
Position on Article 1
24.9 Article 1 defines the objective of the Directive.
It states that the draft Directive covers measures issued with
a view to protecting a person against a criminal act of
another person which may endanger his life, physical or psychological
integrity, personal liberty or sexual integrity. There are differing
views as to whether this objective is too wide given that the
legal base the instrument has been brought under only deals with
proceedings in criminal matters. There is one school of thought
that because the aim is protection from a criminal act, then this
is enough to include protection measures issued in civil proceedings.
However others, including the Commission, believe that a Directive
brought under a criminal legal base can only deal with measures
made in criminal proceedings.
24.10 The uncertainty surrounding this issue means
that the Government cannot support the current text of the EPO.
It believes that the draft Directive should be confined to orders
made in criminal proceedings. It is only the Commission who could
bring forward legislation on civil orders, or a Directive with
a joint civil/criminal legal base.
Remaining Articles
24.11 Article 4 relating to issuing of an EPO (which
was Article 2 in the original text). Previously this Article referred
only to orders that "prohibit" contact between the protected
person and person causing danger. This has been amended (at the
request of the UK) to cover the "regulation" of contact
in addition to prohibition of contact as many of the UK's orders
permit or even require some contact (e.g. around shared custody
of children), but prohibit vexatious contact.
24.12 Articles 8, 9bis and 10 define the roles of
issuing and executing States. There has been a significant rebalancing
of the roles since the original version of the text. Article 8
sets out what is required in the executing State upon receipt
of an EPO. Article 9bis sets out the rights of executing State
and their competence to adopt and enforce measures after recognising
an EPO and also to deal with the breach of any measures they put
in place. Article 10 clarifies the competence of the issuing State
still to renew, review, modify or revoke the original protection
measure, and then the EPO. The amendments to these Articles provide
some clarification regarding the mechanics of the EPO. There would
be a three-stage process: the original domestic protection measure
in the issuing State, the EPO which would be a form certifying
the original protection measure and finally the new protection
measure provided by the executing State after recognising the
EPO.
24.13 Article 9 sets out grounds for non-recognition
of an EPO. Additional grounds for non-recognition have been added
since the original text. The additional grounds for non-recognition
are: that the protection measure relates to an act that does not
constitute a criminal offence under the law of the executing State;
a criminal prosecution is statute-barred under the law of the
executing State; the recognition of the protection order would
contravene the ne bis in idem principle; the person causing
danger cannot be held criminally responsible under the law of
the executing State because of his age; and also that the protection
measure relates to a criminal offence that is regarded as having
been committed wholly or for a major or essential part within
the territory of the executing State.
24.14 Article 11 now provides more detailed grounds
for discontinuation of measures taken on the basis of an EPO.
These include a sufficient indication that the protected person
does not reside or stay in the executing State and also when,
according to national law, the maximum term of duration of the
measures adopted in execution of the EPO has expired.
24.15 Articles 12, 13 and 14 have been deleted.
FINANCIAL IMPLICATIONS
24.16 As currently drafted the EPO would require
Member States to issue equivalent domestic protection orders,
and so no dramatic change would be required to the UK's system
of protection measures. Additional costs would arise when issuing
an EPO in terms of translating the form and dealing with the application.
There will also be costs in relation to bringing forward secondary
legislation to transpose and implement the Directive, and a process
set up for issuing and receiving EPOs. Initial indications are
that volumes will be low, and the Government is continuing to
conduct analysis surrounding costs.
CONSULTATION
24.17 The Government has consulted a number of groups
who represent victims and those people who are likely to make
use of protection orders, groups who are involved in family justice
and those who perform advocacy on behalf of defendants and have
an interest in the criminal law. All of these groups support the
initiative in principle and have suggested that there is anecdotal
evidence of the need for such a measure.
TIMETABLE
24.18 The lead Committees in the European Parliament
are FEMM (women's rights and gender equality) and LIBE (civil
liberties justice and home affairs). The co-rapporteurs published
draft amendments to the proposal on 18 May. Both Committees have
indicated that they share the Presidency's wide interpretation
of the scope of legal base.
Minister's letter of 10 June
24.19 The Minister also wrote to the Committee on
10 June (his officials having regularly kept the Committee's staff
informed of developments during Dissolution) to explain that the
proposal was presented at the Justice and Home Affairs Council
on 4 June in order to obtain a "general approach". The
Minister says that he was unable to support the revised text on
that occasion because of concerns over the legal base (as described
in the Explanatory Memorandum). A number of other Member States
expressed similar concerns. The Spanish Presidency required consensus
in order to continue discussions with the European Parliament,
and the Minister reports that, given the number of Member States
who objected, it was less than clear that it had the consensus.
Surprisingly, however, the Presidency insisted that it had the
majority support needed for a general approach so that the text
could be taken to the European Parliament. Unfortunately, it linked
this assertion with an interpretation of the UK's opt-in Protocol.[103]
Article 3(2) of that Protocol states that "if after a reasonable
period of time" a measure cannot be adopted with the UK or
Ireland taking part, the Council may adopt that measure without
the participation of the UK or Ireland. The Presidency suggested
that the UK could be asked again what its view is at the Council
in October, in the expectation that a "reasonable time"
would then have passed. The Minister reports that he intervened
to make it clear that he did not agree with this interpretation
of the Protocol.
24.20 The Minister continues that he has indicated
to the Spanish Presidency that the UK would support a narrow interpretation
of the legal basis, restricting the Directive to measures taken
in the context of criminal proceedings and related to a criminal
offence. The Commission is exploring the option of bringing forward
a mirror civil instrument to ensure that those countries that
use civil protection measures will also be covered.
24.21 The Minister then turns to the questions posed
by our predecessors when they last reported on this proposal:
"In your report of 7 April you ask for confirmation
as to whether the EPO will only apply to final judicial decisions
rather than interim decisions. In theory the EPO could cover both.
Based on the current draft, it would be the responsibility of
the designated competent authorities to recognise an existing
protection order and issue an EPO. They will make the decisions
on the appropriateness of issuing an EPO on a case by case basis.
"I note the concerns you have raised about procedural
safeguards for the person causing danger. You will note that 5(3bis)
in the most recent text that was deposited with Parliament on
25 May refers to the rights of the person causing danger. This
is a new addition to the text and ensures that the person causing
danger has the right to be heard and to challenge the protection
measure, if he has not had these rights in the procedure leading
to the adoption of the protection measure.
"Finally you ask how the Government intends
to implement the duty to inform those who benefit from a protection
measure of the existence of the EPO. This is at Article 5(4) in
the current text. My officials are working with colleagues from
other Departments to look at how the EPO will work in practice
and the implications for the UK if we have to implement this draft
Directive. These discussions are ongoing but implementation could
entail the provision of a leaflet by the competent authority to
the protected person explaining the mechanisms for obtaining an
EPO."
Conclusion
24.22 We thank the Minister for his letter and
Explanatory Memorandum, and his officials for keeping our officials
informed of developments in the negotiations during Dissolution
and the post-election period.
24.23 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.
24.24 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.
24.25 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.
24.26 We clear document (a) from scrutiny because
it has been superseded by document (b), which remains under scrutiny
pending the Minister's replies.
102 See headnote. Back
103
Protocol 21 attached to the EU Treaties. Back
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