15 European Investigation Order
| Committee's assessment
| Legally and politically important |
| Committee's decision | Cleared from scrutiny
|
| Document details | Draft Directive on the European investigation order in criminal matters - Text agreed as general approach
|
| Legal base | Article 82(1)(a) TFEU
|
| Department | Home Office
|
Summary and Committee's conclusions
15.1 The European Investigation Order (EIO) will enable the judicial
authorities of one Member State to request that evidence be obtained
in another Member State (the issuing Member State) for the purposes
of criminal investigation. In accordance with the principle of
mutual recognition, the request must, in principle, be accepted
and acted upon by the receiving Member State without further formality,
subject to a limited number of exceptions. The EIO replaces existing
mutual legal assistance instruments, the most important of which
is the 2000 EU Mutual Legal Assistance Convention. The EIO has
already been highlighted by the Committee as the most significant
Justice and Home Affairs measure which the Government has opted
into since the Lisbon Treaty came into force.
15.2 The document currently held under scrutiny is
the text agreed as a general approach by the Council. It was
recommended for debate "as soon as possible" on 6 November
2013. However, before such debate could take place the EIO was
agreed in the Council 14 March and formally adopted on 3 April
as Directive 2014/41. The UK abstained, thus avoiding a scrutiny
override.
15.3 In its Report of 19 March 2014, the Committee
rescinded the recommendation for debate and invited the Home Secretary
to give evidence to explain her Department's approach, the operation
of the EIO, and the fact that the Committee only received a public
version of the text three days before it was agreed by the Council.
15.4 The Home Secretary gave oral evidence on 30
April 2014[36] and provided
further written clarification by letter dated 24 June 2014. The
significant aspects are outlined below.
15.5 As the Directive regarding the European Investigation
Order in criminal matters has now been adopted, we clear this
matter. Given its importance we draw it to the attention of the
House, and in particular the following aspects:
· Whilst
there is some protection against frivolous or disproportionate
requests for evidence, a matter which has bedevilled the operation
of the European Arrest Warrant, the requesting Member State may
ultimately decide whether or not to pursue a request for evidence,
with the attendant costs falling on the requested Member State.
· The
Government did not succeed in limiting the scope of the EIO to
matters which are criminal offences in both the issuing and receiving
Member States — "dual criminality". The exceptions
to the principle of dual criminality are those applicable to the
European Arrest Warrant.
15.6 The scrutiny of this important legislation
by the House has been impeded by the failure to arrange a timely
debate and the unavailability of a public version of the agreed
text. This is not consistent with the Government's commitment
"to strengthen its engagement with Parliament on all European
Union business as part of our wider work to reduce the democratic
deficit over EU matters".
15.7 This case also demonstrates the importance
of the Committee's recommendation in its Report of 20 November
last year on Reforming the European Scrutiny System in the
House of Commons, that a scrutiny override should be considered
to have occurred when the Government agrees or acquiesces in reaching
consensus in Coreper on a document held under scrutiny or abstains
on a vote. The Government response to this Report is already
long overdue and we look forward to receiving it very soon.
Full details of
the document: Draft Directive on the
European Investigation Order in criminal matters — Text
agreed as general approach: (33597), 18918/11, —.
Background
15.8 The European Investigation Order, Directive
2014/41, must be transposed into national law by Member States
by 22 May 2017. It provides a new regime for obtaining evidence
from other Member States. In principle the request from a judicial
authority of one Member State (the issuing Member State), using
a standard form, must be acted upon by the authorities of the
receiving Member State without further formality. It can apply
to evidence already obtained in the receiving Member State or
require the evidence to be obtained. It can only be issued if
the investigative measure would be available in the issuing Member
State and if it is "necessary and proportionate". The
receiving Member State has a choice as to how the evidence is
obtained.
15.9 The Directive includes a limited number of grounds
for the receiving Member State to refuse the request, including:
immunity or privilege from investigative action in the receiving
Member State; harm to essential national security interests; breach
of fundamental rights; or the alleged activity does not constitute
a crime in the receiving Member State (dual criminality) —
other than in respect of certain specified serious criminal activity.
The costs of acting on a request are borne by the receiving Member
State.
15.10 The EIO also makes provision for (a) the temporary
transfer of persons in custody for the purpose of gathering evidence,
(b) inquiry as to the bank accounts held by, and financial operations
of, suspects (c) covert investigations and the interception of
telecommunications and (d) provisional measures to preserve evidence.
The oral evidence session on 30 April 2014 and
letter of 24 June 2014
15.11 In relation to the scrutiny process, the Home
Secretary (Mrs Theresa May) explained, in her oral evidence, that
the failure to schedule a timely debate in this matter was caused
by the need to secure agreement across Government and a lack of
a public version of the text, which the Government had urged the
Council Presidency and Secretariat to produce. She indicated
that this case was not indicative of the Government's overall
policy in relation to debates in the House on European matters
that are of particular concern to the Members of the House.[37]
15.12 In response to the suggestion that this matter
was as an example of the Government avoiding an override of parliamentary
scrutiny by acquiescence in reaching consensus in Coreper and
abstaining at the formal vote, the Home Secretary recognised that
the Committee, in its Report on Reforming the European Scrutiny
System in the House of Commons has recommended that both these
circumstances should be regarded as an override,[38]
but indicated that the Government will be responding fully and
properly to this Report in due course.[39]
15.13 In terms of the substance of the proposal,
the Home Secretary pointed to progress in negotiations in requiring
the issuing state to consider the proportionality of the request
if asked to do so, but accepted that, ultimately, it was a decision
for the issuing Member State and the requested Member State would
have to bear the cost. This was presented as an advance over
existing arrangements for mutual legal assistance which make no
reference to proportionality.[40]
15.14 The Home Secretary indicated that the Government
had fought, unsuccessfully for full dual criminality, but had
been "something of a lone voice".[41]
15.15 In her oral evidence[42]
and by subsequent correspondence the Home Secretary clarified
that the temporary transfer of prisoners for the purpose of gathering
evidence already occurs under existing mutual legal assistance
provisions. The refusal of consent "may" be a ground
for refusal and this will be the same under the Directive. UK
implementing legislation, however, provides for any request for
transfer to be refused in the absence of consent. She has also
pointed out that the Directive provides additional safeguards
for those who are vulnerable because of their age, or because
of their physical or mental condition.
Previous Committee Reports
Forty-first Report HC 83-xxxviii (2013-14), chapter
2 (19 March 2014); Thirty-first Report HC 83-xxviii (2013-14),
chapter 1 (22 January 2014); Twenty-second Report HC 83-xx (2013-14),
chapter 7 (6 November 2013); Thirty-fifth Report HC 86-xxxv (2012-13),
chapter 15 (13 March 2013).
See also: Forty-eighth Report HC 428-xliii (2010-12),
chapter 9 (7 December 2011); Thirty-sixth Report HC 428-xxxii
(2010-12), chapter 10 (6 July 2011); Thirty-third Report HC 428-xxix
(2010-12), chapter 8 (8 June 2011); Thirty-first Report HC 428-xxviii
(2010-12), chapter 5 (24 May 2011); Twenty-second Report HC 428-xx
(2010-11), chapter 3 (16 March 2011); Twelfth Report HC 428-xi
(2010-11), chapter 11 (15 December 2010).
36 http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/european-scrutiny-committee/european-investigation-order/oral/9170.html Back
37
Q 3. Back
38
Twenty-fourth Report of Session 2013-14 HC 109-I, para 143. Back
39
Qq 15-21. Back
40
Qq 29, 31 and 33. Back
41
Q 35. Back
42
Qq 30 and 39. Back
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