Select Committee on European Union Forty-Ninth Report

Letter from The Rt Hon Baroness Scotland of Asthal QC, Parliamentary Secretary, to the Chairman

  Thank you for your letter of 13 February reporting that Sub-Committee E had cleared the Commission's Green Paper from scrutiny.

  I wanted to respond to your remarks about civil law and judicial co-operation in the context of the Convention on the Future of Europe. As you will know, with the coming into force of the Nice Treaty, measures under Article 65 now fall to be adopted by a qualified majority and by means of the co-decision procedure, with the exception of matters concerning family law.

  I share your view that civil law and procedure is an essential element in the fabric of the judicial system despite, as you rightly note, its relatively low political profile. We shall want, so far as possible, to keep a firm lid on harmonisation in this area.

3 March 2003

Letter from The Chairman of the Committee to Mr Bob Ainsworth MP, Parliamentary Under Secretary of State, Home Office

  Sub-Committee E (Law and Institutions) considered the draft Decision at its meeting on 26 June. The Committee is surprised and concerned at the apparently limited consultation, both inter-Departmental and external, being undertaken by your Department in relation to this proposal. We understand that neither the Lord Chancellor nor the Lord Chief Justice has been consulted, nor presumably the Lord Justice General or the Lord Advocate. We would be grateful to learn that you have taken their views and look forward to receiving a summary of the results of your consultation. The Committee will be pleased to revisit the proposal in the light of that information.

  In the meantime the Committee would welcome clarification of the following matters.

  First, paragraph 3 of the recitals states that "It is necessary to improve the national legal systems in the fight against terrorism and their implementation". The Committee would be grateful if you could explain what this means. What are the deficiencies which the Decision seeks to make good?

  Second, please identify the "national authorities" (Article 1 (2)) in the case of the UK. Does it include the courts?

  Third, Article 6 contemplates evaluation teams interviewing, inter alia, "judicial authorities". What is envisaged here? Does this include judges?

  Fourth, Article 8 (5) provides that at the end of the evaluation process "the Council shall take the appropriate measures". Again, what is envisaged? Please give examples of the sort of measures that the Council could adopt.

  The document remains under scrutiny.

27 June 2002

Letter from Bob Ainsworth MP to The Chairman

  I am grateful to the Committee for their examination of this proposal and the comments contained in your letter of 27 June.

  I have noted the Committee's comments on the apparent limited consultation being undertaken by the Home Office in relation to this proposal. I understand that these have been prompted, at least in part, by concerns that this draft Decision would infringe on judicial independence in that it would require the UK's judicial authorities to make themselves available to the evaluation experts. I can assure you that this is not the case. This proposed Decision is a streamlined version of an existing mutual evaluation exercise, namely the Joint Action on mutual evaluation of 5 December 1997, during the adoption of which judicial independence was never brought into question. As no wide consultation exercise was undertaken with the 1997 Joint Action, and given that two such exercises have already taken place under this Joint Action without any issues relating to judicial independence arising, a consultation exercise in relation to this proposal was not considered to be necessary.

  The need to seek the views of the Lord Chancellor and the others named in your letter would, of course, have been necessary if this proposal were to lead to the direct evaluation of the judiciary in the UK. However, the use of the term "judicial authorities" in EU instruments is necessary to cover those countries under whose legal systems prosecutors and magistrates have responsibility for the investigation of criminal offences. In the case of the UK, it is very difficult to envisage under this proposal that the programme of visits (which would be based on the evaluation team's report but drawn up by the UK) would include an evaluation visit to a judge. This has not been necessary under the existing evaluation exercise and the Member States who have systems where magistrates and judges are much more likely to be needed for such an evaluation, have not raised any difficulties.

  With regard to your specific questions on the text of the document, the Committee has sought clarification as to what the deficiencies referred to in paragraph 3 of the proposal are. This proposal is aimed at assisting Member States in strengthening where needed their responses to counter-terrorism. As the Council Framework Decision on combating terrorism recognised, there is a need to reinforce criminal law measures within Member States to combat terrorism. The UK already has firm and comprehensive counter-terrorism legislation and an excellent record in implementing international counter-terrorist agreements. Some other EU Member States, however, who do not share our experiences of terrorism, do not have in place specific counter-terrorist measures within their legal systems. The proposal is also aimed at spreading best practice across the EU so that, where necessary, the measures already in place in individual Member States can be improved.

  The Committee has also asked for the identification of the "national authorities" named in Article 1(2), in relation to the UK. The reference to "national authorities" is a general term designed to incorporate all the authorities necessary in each Member State that need to be subject to the evaluation process. As stated above, the differing systems across Member States mean that these will vary from state to state and, in the case of the UK, would not include the courts. Once again the authorities of the Member State would determine the programme of visits by the evaluation team in question and it is very hard to envisage a set of circumstances where such an evaluation for the UK courts would be necessary.

  With regard to the Committee's comments on Article 8(5), without knowing in advance the result of any future evaluations it is difficult to predict exactly what measures the Council would take. However, at the end of the evaluation the Council should be in a position to identify shortfalls in the legal systems of Member States as they relate to the terrorist response and to note examples of best practice that could be recommended for adoption across the EU.

  This proposal is now not due for agreement until the December meeting of the Justice and Home Affairs Council. If you so wish, we will of course keep you advised of developments.

24 July 2002

Letter from the Chairman to Bob Ainsworth MP

  Thank you for your letter of 24 July which was considered by Sub-Committee E (Law and Institutions) at its meeting on 9 October. We are grateful for your assurance that the references to "judicial authorities" in the text of the draft Decision will not lead to the evaluation of judges or magistrates in the UK. We are also grateful for your explanation of the need for the proposal. In spreading best practice across the EU, the Committee would like to be assured that those conducting evaluation exercises in Member States will seek to ensure that national legal systems fully respect the fundamental rights of the individual.

  The Committee decided to clear the proposal from scrutiny.

10 October 2002

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