Documents considered by the Committee on 24 March 2015 - European Scrutiny Contents

15 Procedural rights

Committee's assessment Legally and politically important
Committee's decision(a)—(c) Not cleared from scrutiny; further information requested; (d) Cleared from scrutiny (decision reported on 23 May 2012); further information requested
Document details(a) Draft Directive on provisional legal aid (b) Draft Directive on procedural safeguards for child defendants; (c) Draft Directive on the presumption of innocence; (d) Draft Directive on access to a lawyer
Legal baseArticle 82(2)(b) TFEU; co-decision; QMV
DepartmentMinistry of Justice
Document numbers(a) (35652), 17635/13 + ADDs 1-3, COM(13) 824 (b) (35646), 17633/13 + ADDs 1-3, COM(13) 822 (c) (35642), 17621/13 + ADDs 1-3, COM(13) 821 (d) (32865), 11497/11+ ADDs 1-2, COM(11) 326

Summary and Committee's conclusions

15.1 To recap, documents (a)—(c) comprise three Directives in the 2013 procedural rights package which aims to implement commitments to strengthening the "fair trial" rights of EU citizens (set out in the Procedural Rights Roadmap and the Stockholm Programme for 2010-14). The UK's JHA opt-in applies to all three Directives in the package but following the opt-in debate on 18 March 2014 the Government has not opted into any of them.

15.2 The Government has opted into two previous Directives which also implement those commitments — on the right to interpretation and translation and on the right to information in criminal proceedings. However, it did not opt into document (d) which has now been adopted: the Directive on access to a lawyer in criminal and European Arrest Warrant (EAW) proceedings.

15.3 In addition, on our recommendation, the House of Commons issued a subsidiarity Reasoned Opinion in respect of the draft Directive on the presumption of innocence (document (c)) on 10 February 2014, but no other Reasoned Opinions were issued by national parliaments.

15.4 The Government has been keeping us up-to-date with developments on all four documents and now provides a pre-dissolution update. On the question of possible UK future participation, it informs us that while post-adoption opt-ins are still possible on the draft Directive on Child Defendants and the adopted Directive on Access to a Lawyer, it still has no plans to consider participating in the draft Directives on legal aid and Presumption of Innocence.

15.5 We thank the Minister for his update on all of these proposals in the Procedural Rights Package. We note the position on possible future UK participation in the draft Directive on child defendants (document (b)) and the adopted Directive on access to a lawyer (document (d)). We look forward to the Government keeping our successor Committee up-to-date on all developments on these proposals, in particular on its deliberations over whether to opt-into the latter adopted Directive (document (d)).

15.6 In the meantime, documents (a)—(c) remain under scrutiny, document (d) having previously been cleared, but of continuing interest to the Committee.

Full details of the documents: (a) Draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings: (35652), 17635/13 + ADDs 1-3, COM(13) 824; (b) Draft Directive on procedural safeguards for children suspected or accused in criminal proceedings: (35646), 17633/13 + ADDs 1-3, COM(13) 822; (c) Draft Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings: (35642), 17621/13 + ADDs 1-3, COM(13) 821; (d) Draft Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest: (32865), 11497/11+ ADDs 1-2, COM(11) 326.

Background and previous scrutiny

15.7 The background to these documents, a detailed account of their provisions and the Government view on them and subsequent developments is provided in the previous Reports listed at the end of this chapter.

Minister's letter of 18 March 2015

15.8 The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara) provides an update on all four documents.


15.9 The Minister first informs us that a General Approach was agreed and attaches the text. He adds that:

    "Some Member States expressed disappointment that the General Approach text agreed is less ambitious than the Commission's proposal. The UK did not intervene in the discussion, and did not have a vote as it has not opted in to this measure."

15.10 He reminds the Committee that the UK did not opt in to this proposal and adds that "the Government does not expect to change that position". He informs us that the UK "has monitored the negotiations, and where relevant sought to protect the UK's interests in other areas, but it has not sought to achieve any a particular outcome".

15.11 He revisits the nature of the Government's concerns about the draft Directive on Legal Aid:

    "As the Government has explained previously, the UK's difficulty with the Commission's proposal was not due to any particular concern about its provisions. Indeed we considered the UK was already largely compliant with the detailed requirements of the proposal. Our difficulty is one of principle: that rules on legal aid are more appropriately left to Member States to decide."

15.12 The Minister next explains how the General Approach text has changed:

    "One of our original concerns was that the proposal sought to establish a "dual defence" model in European Arrest Warrant cases, whereby the issuing Member State would be required to fund a lawyer as well as the executing Member State. This requirement has been removed from the General Approach text. The other key change is that the scope of the General Approach text does not cover "minor offences", nor does it go beyond "provisional" legal aid (at the point of arrest). Some Member States have expressed disappointment that the scope of the Directive has been narrowed in the General Approach text."

15.13 In terms of next steps, the Minister says that trilogues can only begin once the European Parliament (EP) has adopted its amendments on the proposal and that the Government will keep the Committee updated on this matter.


15.14 The Minister updates us on developments in the EP on this proposal:

    "The Civil Liberties, Justice and Home Affairs (LIBE) Committee of the European Parliament held an orientation vote on its proposed amendments to the Child Defendants Directive, on 5 February 2015. 79 amendments were adopted, forming the mandate for the Committee's Rapporteur in trilogue negotiations. The European Parliament's text heavily supports the Commission's initial proposal, going further in some places, and therefore does not reflect some of the hard-earned compromises that the General Approach represents."

15.15 He reminds us of that although the UK has not opted in to this proposal, it continues to participate in negotiations because it "has committed to considering the possibility of a post-adoption opt-in, once the final measure has been agreed".

15.16 The Minister then sets out some areas in which the EP has sought to extend the Commission's proposal including:

·  widening the scope of the Directive to include young adults up to the age of 21, where they were under 18 at the time of the offence (Article 3) — the UK would be concerned about a new category of defendant;

·  requiring an individual assessment under Article 7 to be carried out before the deprivation of liberty, whereas the General Approach text requires that assessments should be carried out at the earliest appropriate stage of proceedings, and at the latest in time to be considered at sentencing — Member States had been concerned about the potential for such assessments delaying the early stages of proceedings;

·  making a number of proposals for what the Article 7 assessments should include, and has sought to narrow the circumstances in which authorities may derogate from the requirements in the Directive;

·  not providing for the possibility of declining to conduct medical assessments in some limited circumstances (Article 8), which was set out in the General Approach text; and

·  proposing a new right for a suspect to "participate" in proceedings (see attendance at court hearings, Article 16) and an obligation for Member States to take all necessary steps to enable them to participate fully in the proceedings — the Government is concerned that sufficient account should be taken of judicial discretion to ensure fairness and the proper administration of justice, as well as the best interests of the defendant.

15.17 As for the next steps on this proposal, the Minister says that the Latvian Presidency held a Council Working Group on 16 February at which Member States considered the EP proposals in preparation for trilogues. He adds:

    "The first trilogue meeting was held on 4 March, we understand it was reasonably constructive and the discussions covered a number of areas including the overall scope of the proposal as well as the provisions on individual assessments and medical examinations. There will be a further Council working group to consider the outcomes of that meeting on 9 April and the next trilogue meeting is scheduled for 22 April. We will provide a further update once trilogue negotiations have concluded."


15.18 The Minister reminds us that a General Approach was agreed at the December JHA and the key changes in the text were set out in his letter of 19 December. In terms of next steps, he says that trilogues will begin as soon as the EP adopts its amendments although LIBE is expected to hold an orientation vote at the end of March. The Government commits to continuing to update us and says that the Government has no plans to consider a post-adoption opt-in.

    "although we expect LIBE to hold an orientation vote at the end of this month. We will continue to monitor progress and update you as appropriate. As you are aware, the UK has not opted in to this measure, and the Government has no plans to consider a post-adoption opt-in."


15.19 The Minister finishes his letter by turning to document (d) which has been already adopted (7 October 2013). He explains that the Government is in the process of reviewing a final version of the Directive with a view to a possible post-adoption opt-in. The Minister recalls that as there is no time limit for this process, the UK can opt in to the Directive at any time post adoption. He says that the Government will write again to the Committee with its conclusions and decisions, adding that:

    "If there is any question of a post-adoption opt-in we will seek the Committee's views in accordance with the approach described in the Code of Practice."

Previous Committee Reports

(a)Thirty-eighth Report HC 83-xxxv (2013-14), chapter 3 (5 March 2014); Thirty-second Report HC 83-xxviii (2013-14), chapter 3 (22 January 2014); (b) Ninth Report HC 219-ix (2014-15), chapter 20 (3 September 2014); Thirty-eighth Report HC 83-xxxv (2013-14), chapter 2 (5 March 2014); Thirty-second Report HC 83-xxviii (2013-14), chapter 2 (22 January 2014); (c) Thirty-second Report HC 83-xxviii, chapter 1 (22 January 2014); (d)Third Report HC 86-iii (2010-12), chapter 16 (23 May 2012); Thirty-sixth Report HC 428-xxxii (2010-12), chapter 5 (6 July 2011).

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Prepared 27 March 2015