15 Procedural rights |
||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 base||Article 82(2)(b) TFEU; co-decision; QMV
|Department||Ministry 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.
DOCUMENT (A) LEGAL AID
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.
DOCUMENT (B) CHILD DEFENDANTS
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."
DOCUMENT (C) PRESUMPTION OF INNOCENCE
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
"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."
DOCUMENT (D) ACCESS TO A LAWYER
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).