Home AffairsWritten evidence submitted by Justice Across Borders [JHA 03]
Justice Across Borders
1. Justice Across Borders is an NGO founded in November 2012 to support British citizens who have been victims of serious crime in other EU countries. In particular, we have campaigned for the maximum involvement of the United Kingdom in EU police and justice measures, since we believe that these work overwhelmingly to the benefit of British victims of crime.
2. Our submission to the House of Commons Home Affairs Committee is based on material already submitted to the House of Lords Inquiry. The response to Question 2 in this submission reproduces the same arguments and analysis as our submission of 11 September 2013 to that Inquiry.
Question 1: Do you agree that it is in the national interest for the UK to seek to rejoin any or all of those measures falling within the Home Office’s remit which the Government has indicated that it will seek to rejoin?
3. We welcome the Government’s decision to seek to rejoin the 35 measures specified in Command Paper 8671, although—as we argue below—we believe that there is a good case for adding to this list.
4. We wish to focus on one particular argument in favour of rejoining measures such as the European Arrest Warrant. We do not believe that new bilateral or multilateral arrangements outside the European Union would be nearly as effective.
5. As we pointed out in our submission to the House of Lords EU Committee of 21 December 2012, negotiation and implementation of bilateral and ad hoc arrangements are fraught with difficulty. Other States may not accord these priority, resulting in significant operational delays. Individual legislation may not be fast-tracked or implemented against a deadline like EU legislation. Discrepancies between implementing legislation may arise, with no mechanism to rectify them.
6. Second, such agreements might not be negotiated on the terms the UK wants, or at all. International engagement is a bargain whether it is done inside or outside the framework of European police cooperation. Just because you work outside the European framework does not mean you get all or even anything of what you want. In fact, you might get less because you have less influence. Other states could refuse to negotiate or cooperate just as we could, or ask us to pay a price on other issues.
7. Third, Member States might be constrained in concluding individual arrangements by EU law. Post-Lisbon, Union competence has been extended in the field of JHA, including the fields covered by the pre-Lisbon instruments. As a matter of EU law, there might now be a limit to which individual Member States can negotiate terms by themselves, particularly if this was to be inconsistent with the EU acquis in the relevant field.
8. Fourth, there is a real risk that requests for assistance under ad hoc arrangements will go to the “bottom of the pile”. If the UK is not committed to cooperation with its EU partners under established Europe-wide mechanisms, there is a risk that other EU partners will not accord our cooperation any priority. Evidence from senior UK law enforcement officials has consistently reinforced that there is unique advantage in the UK’s ability to cooperate through established EU mechanisms such as Europol and Eurojust.
9. Fifth, however tight or efficient the bilateral or ad hoc arrangements, they result in differences in procedures which criminals exploit. The history of our extradition arrangements with Spain since 1978 is an object lesson. There were no extradition arrangements between the two countries between 1978 and 1985. Arrangements were resumed in 1985 but operated weakly until 2001. Spain became a renowned safe haven for British criminals. Since application of the EAW, the UK has secured the return of 49 of 65 of the top UK fugitives from Spain. An ad hoc approach would open up the possibility of the UK becoming a “Costa del Crime” of EU nationals and other Member States becoming a “Costa del Crime” for British nationals.
Question 2: Do you have any comments on the analysis of policy implications and fundamental rights provided in the Home Office’s Explanatory Memoranda?
The Command Paper: A Narrow Approach
10. In our view, Command Paper 8671 adopts too narrow an approach to the 133 measures. It is based on a single line of analysis: “Can we get away with not being a party to this measure?” The idea that a State with the standing of the UK is a party to an international instrument because of what other countries commit themselves to do, or because of what it might do for the rule of law in Europe, is completely absent. Since the driving force for the Government in opting out of the measures is fear of the CJEU’s jurisdiction, we would have expected more analysis of the perceived risks in respect of each measure. But this case is not made out.
Other Measures which should be on the list
11. There appears to be a misconception that the 133 measures fall into two broad categories: the 35 on the Government’s list, and defunct or obsolete measures, with only a small number in between. The Command Paper shows this is not true. While the list of 35 represents those with the strongest case for inclusion, there is a good case for including a large number of other measures, for the following reasons:
(a)
(b)
(c)
Coherence
12. This issue mainly arises in respect of Europol and to a lesser extent Schengen measures. While the Government has included in the list of 35 Council Decision 2009/371/JHA establishing the European Police Office (Europol), it has not included:
(19) Council Act of 3 December 1998 laying down the staff regulations applicable to Europol employees.
(21) Council Decision of 2 December 1999 amending the Council Act of 3 December 1998.
(64) Council Decision 2005/511/JHA of 12 July 2005 on protecting the euro against counterfeiting, by designating Europol as the Central Office for combating euro-counterfeiting.
(104) Council Decision 2009/934/JHA of 30 November 2009 adopting the implementing rules governing Europol’s relations with partners, including the exchange of personal data and classified information.
(105) Council Decision 2009/935/JHA of 30 November 2009 determining the list of third countries with which Europol shall conclude agreements.
(106) Council Decision 2009/936/JHA of 30 November 2009 adopting the implementing rules for Europol analysis work files.
(108) Council Decision 2009/968/JHA of 30 November 2009 adopting the rules of confidentiality of Europol information.
13. The Command Paper rejects the case for being party to these measures on the basis that no UK legislative measures have been required for their implementation. We suggest that this reasoning is flawed. Being party to these measures gives the UK’s authority for Europol to act, and to be associated with other parties, in accordance with these measures. If the UK is to continue to be fully part of Europol, even pending the adoption of a further Europol Decision, it ought for reasons of both coherence and authority to remain party to these instruments.
14. We have argued in paragraph 16 above that it is not sufficient to leave such questions to “transitional measures”. First, this could create legal uncertainty. Second, it could raise doubts about what Parliament was actually approving. If measures do not feature in the Government’s list, there is at least a presumption that they will cease to apply on 1st December 2014 and not be reintroduced through “the back door” of transitional measures. If measures are to continue to apply, if only for a short period pending entry into force of another measure, it is better to include them in the list with Parliament’s clear approval.
15. The same applies to a lesser extent to the following Schengen measures, under each of which we have briefly stated why we believe the UK should remain a party. There is no suggestion that the CJEU poses a risk to the UK in respect of any of them.
(111) Accession Protocols.
(122) Council Decision 2004/849/EC of 25 October 2004 relating to Switzerland.
(132) Council Decision 2008/149/EC of 28 January 2008 relating to Switzerland.
16. The reason given for not being party to these measures is that the new level of participation would be set out in the Council Decision on the opt-back in. As stated in our previous paragraph, the procedure of not including measures in the list and of re-applying them through other Decisions or through the transitional measures carries risk of misunderstanding.
(112) SCH/Com-ex (93) 14 on improving practical judicial cooperation for combating drug trafficking.
17. The reason given for not being party is that, in respect of EU Member States, this measure has been largely superseded by the EU MLA Convention and will be superseded by the European Investigation Order (EIO), and otherwise through the 1959 Council of Europe Convention (and its Protocols) or the separate agreement implementing parts of the MLA Convention with Iceland and Norway. But the UK does not propose to opt back into the MLA Convention; not all Member States will be party to the EIO; and the Council of Europe Convention does not fill all the gaps.
(114) SCH/Com-ex (98) 26 def setting up a Standing Committee on the evaluation and implementation of Schengen.
(116) SCH/Com-ex (99) 6 on the Schengen acquis relating to telecommunications.
(127) Commission Decision 2007/171/EC of 16 March 2007 laying down the network requirements for SIS II.
(129) Council Decision 2008/173/EC of 18 February 2008 on the tests of the second generation SIS.
18. While we accept that it may be technically possible to continue cooperation related to these instruments without being party to them, the Command Paper acknowledges the interest which the UK has in them, not least through participation in relevant committees and sub-groups or the establishment of technical standards. So there is an argument based on coherence for remaining party to them.
The risk of an operational gap
19. We consider that the Command Paper analysis shows the risk of an operational gap in respect of the following measures:
(2) Joint Action 96/277/JHA of 22 April 1996 concerning a framework for the exchange of liaison magistrates.
20. The Command Paper states “We judge that non-participation in the network may diminish the ability of the UK to coordinate complex investigations and prosecutions in international cases involving Spain, Italy and France.”
(25) Council Act of 29 May 2000 establishing the Convention on Mutual Legal Assistance in criminal matters between the Member States of the European Union.
(32) Council Act of 16 October 2001 establishing the Protocol to the Convention on Mutual Assistance in Criminal Matters between Member States of the European Union.
21. At paragraph 120 of the Command Paper, the Government acknowledges that there will be gaps. Its judgment in the case of Denmark that “overall the Government expects the 1959 Council of Europe Convention and its Additional Protocols to be a viable alternative for the majority of forms of MLA” is not convincing. The coverage of interception of communications and banking information in paragraph 121 is similarly weak. Why jeopardise such an important area of cooperation for no good reason?
(30) Council Decision 2001/419/JHA of 28 May 2001 on the transmission of samples of controlled substances
22. At paragraph 142, the Government states: “We judge that the ability to share information and potentially samples for the purposes of securing a prosecution would not be compromised by a decision not to participate in this measure as that is likely to be covered by the EIO”. In our view, this assurance should be stronger.
(66) Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences
23. Paragraph 137 states: “Continuing to share information is therefore important both operationally and in reputational terms”. It adds in paragraph 139 that “in most instances information would be exchanged regardless of UK participation in this measure, especially where it was deemed to be operationally important”. But that indicates a potential gap. Leaving this to “administrative means” (paragraph 140) is not as solid a basis as the measure.
(88) Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions
24. Although the UK has not implemented this Decision, we believe that it would be useful in allowing EU citizens, including British citizens, subject to sanctions such as supervision orders, to move freely between EU Member States.
Reputational Risk to the UK and Benefit to the EU by raising standards
25. There remain a series of measures which, if the UK is not party to them, may not leave operational gaps but may cause reputational damage to the UK and loss of influence. We have included in this section those measures which clearly benefit other Member States and the EU as a whole by raising standards. By not affirming these measures, the UK is abandoning one of the main avenues for building the rule of law in these important areas. These include terrorism, confiscation of assets, fraud and corruption where for many years the UK has encouraged other EU Member States and accession countries to adopt precisely these measures.
26. The titles of the measures are self-explanatory of their scope and therefore of the argument:
(4) Joint Action 96/698/JHA on cooperation between customs authorities and business organizations in combating drug trafficking.
(5) Joint Action 96/699/JHA concerning the exchange of information on the chemical profiling of drugs to facilitate improved cooperation between Member States in combating illicit drug trafficking.
(17) Joint Action 98/699/JHA of 3 December 1998 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and proceeds of crime.
(18) Council Framework Decision 2001/500/JHA of 26 June 2001 on the same subject.
(54) Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of drug trafficking.
(58) Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property.
(33) Council Decision 2001/887/JHA of 6 December 2001 on the protection of the euro against counterfeiting.
(39) (87) Council Framework Decisions 2002/475/JHA of 13 June 2002 and 2008/919/JHA of 28 November 2008 on combating terrorism.
(43) Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence
(45) Council Decision 2002/996/JHA of 28 November 2002 establishing a mechanism for evaluating the legal systems and their implementation at national level in the fight against terrorism.
(84) Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime.
(98) Council Decision 2009/902/JHA of 30 November 2009 setting up a European Crime Prevention Network.
(9) (49) Convention of 26 May 1997 on the fight against corruption involving officials of the European Communities or officials of Member States, and its application to Gibraltar.
(47) Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector.
(29) Council Framework Decision 2001/413/JHA of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment.
(1) (8) (12) Council Act of 26 July 1995 drawing up the Convention on the protection of the European Communities’ financial interests, and the Council Acts drawing up the First and Second Protocols.
Jeremy Hill, Trustee, Justice Across Borders
Thais Portilho-Shrimpton, Director, Justice Across Borders
September 2013
Jeremy Hill was Assistant Legal Adviser in the Foreign and Commonwealth Office (FCO) dealing with extradition and mutual legal assistance between 1982 and 1987. He was Legal Adviser to the British Embassy in Germany between 1987 and 1990, dealing (among other things) with judicial cooperation, including cases of terrorism such as the Lockerbie Inquiry. He was Counsellor in the Attorney General’s Office between 1991 and 1994 specialising in international and EU law. He was Counsellor for Justice and Home Affairs and Legal Adviser in the UK Representation in Brussels between 1995 and 1998, and took part in negotiations in the early pre-Lisbon JHA instruments. He was Head of the Southern European Department in the FCO between 1999 and 2001, then Ambassador to Lithuania from 2001 to 2003, and Ambassador to Bulgaria from 2004 to 2007, where JHA featured prominently in the EU accession process. He also supervised operational police and judicial cooperation from the Embassy with these two countries. He left the FCO in November 2007 but continues to work on a wide variety of international projects. He is an Associate Director of the Centre for Political and Diplomatic Studies and for 2013–14 is a Visiting Scholar at the University of Ulster working on issues of the past in Northern Ireland. He is a member of the Executive Committee of Westminster Liberal Democrats. He is a co-founder and trustee of Justice Across Borders.
Thais Portilho-Shrimpton is Director of Justice Across Borders, which she founded with Jeremy Hill, Lord Taverne and Peter Wilding in November 2012. She has been a journalist for seven years, two of them as an all-round (and crime) reporter at Brazilian national newspaper O Dia, based in Rio de Janeiro. She moved to the UK in 2007 and worked at local newspapers in south London, at Newsquest Ltd, until 2011. She contributed to a range of publications including the Guardian, Independent on Sunday, New Statesman, Daily Telegraph and CNN International. She managed the Hacked Off campaign, and took part in the negotiations of the Leveson Inquiry’s Terms of Reference, as well as the drafting of amendments to proposed changes to CFAs for defamation and privacy cases in the Legal Aid, Sentencing and Punishment of Offenders Bill. She advised academics developing proposals for new models of regulation of the press throughout the inquiry. She was at Hacked Off from its inception until October 2012.