Examination of Witnesses (Questions 421-439)
Baroness Scotland of Asthal QC, Ms Ann McLaughlin
and Ms Melissa Bullen
6 JUNE 2007
Q421 Chairman: Minister, we are very grateful
to you indeed for coming and giving us some of your precious time.
We know how limited that is. You have given evidence before so
you do not need to have explained how we work. I know you want
to make a short opening statement, which would be helpful. Perhaps
you would just introduce your colleagues.
Baroness Scotland of Asthal: To my right is Ann McLaughlin.
She has responsibility for this portfolio. To my left is Melissa
Bullen, who is a lawyer assisting in relation to this. Firstly,
can I say thank you very much for asking me to come and talk to
you about this portfolio today. I feel I should say at the outset
though that it is not altogether clear that the negotiations on
this proposal will move forward on the basis of the current drafting,
or indeed in this format. There has only been one discussion of
the Commission's proposal under the German Presidency and it is
not clear that the incoming Portuguese Presidency will give it
priority. I understand that the Portuguese have indicated a wish
to have an orientation debate to establish whether Member States
support the general principle of EU action in this area and whether
it should be taken forward or not. I think the Committee should
understand that this is really at the very early stages and, although
I understand that there may have been quite a lot of work done
by the Commission, this Committee knows better than any that the
Commission and the Council are very separate and distinct entities
and the enthusiasm of one does not necessarily predicate the enthusiasm
of the other. Her Majesty's Government though, I should make clear,
are not opposed to this measure in principle, and indeed, we welcome
the general idea in principle, and we recognise that there are
arguments for a measure, whilst we have to say frankly that safeguards
would need to be in place to protect our national law and our
policies. We therefore, in any negotiation on this, must ensure
that the measure would not have unintended adverse consequences
or costs. As the Committee has already indicated by its questions,
the devil really will be in the detail and that detail has not
really been gone through to any extent to date. So we are cautious
and will negotiate in that spirit. In that context, we very much
look forward to reading the conclusions of this committee of inquiry
and the guidance that you may give. Because we are at the early
stages, the powerful indications that you may be minded to give
will be of the most help. I know, Chairman, you might have been
thinking "Are we a bit late on this?" This is actually
an ideal time for you to be expressing your views, because we
will want to take them fully into account in formulating any position
that we develop in due course, but I think it is fair for me to
emphasise the caution with which the Portuguese Presidency seems
to be approaching this measure.
Q422 Chairman: Minister, that is
an extremely helpful opening. One question, of course, is with
what degree of enthusiasm we as a Committee should be recommending
that this be progressed. We would like to know whether the Government
thinks, whether you think that there is a real need for a proposal
of this sort, something to deal with the problem, if you recognise
it as a problem, of having foreign nationals, if I can put it
in those crude terms, on remand in custody for the very reason
that, without some scheme of this sort, there is a greater risk
of releasing them on bail and therefore a disproportionate number
of them are remanded in custody for trial across the entire Union.
How much do you think there is a need for this?
Baroness Scotland of Asthal: I think that is
why we are giving this cautious support and, of course, a lot
of it will depend on how it would mesh with our own national law,
whether we can make sure that those issues which are peculiar
to our system are preserved and how it works. That is why I say
the devil will be very much in the detail. We have concerns therefore
about the possible impact on national bail law and that is something
that we are going to have to look at on the detailed drafting
to make sure it would not impinge. I think it would be true to
say, as one of the questions of the Committee raised, that we
would have preferred the Eurobail option, and this was made clear,
I think, in the explanatory memorandum of September of last year,
but the European supervision order proposal I think is certainly
not one which we would say is unacceptable. It is something that
could, I think, if worked on carefully and well, deliver some
real advantages across Europe, but that is predicated on it working
well and the negotiations on detail being what we would wish.
Q423 Chairman: Can I come to Eurobail
in just a moment. In the mean time, just in terms of the statistics,
one document we have from the CPS indicated that as at 31 March
of this year the number of EU nationals held on remand totalled
580, of whom 405 were untried, and 175 were convicted but unsentenced.
So there is a moment in time at which we hold 580 nationals of
other Member States and—because I think you have seen the
evidence we have received from Mr Jakobi, and I think actually
this is a quotation from the Commission impact assessment—at
any given time there are around 4,500 EU nationals in pre-trial
detention in EU countries other than their normal country of residence.
That is 4,500 at a moment in time but 10,000 in all over the space
of a year. On the face of it, that is quite a lot of people and
the suggestion is that as many as 80 per cent of those people
would be free, would be on bail but for the dimension that it
would involve their going out of the trial state into their country
of residence. Are those the sort of figures that you would have
in mind? Of course, more difficult would be to know how many we
would be exporting and how many we would be importing. Has any
work been done to consider that?
Baroness Scotland of Asthal: We are looking
at the number of our nationals who may be in other countries and
of course, you will know that there are some figures that we are
able to get from the Foreign and Commonwealth Office, who do spot
checks, and I am sure that Lord Jay will remember from his days
as to how those are collated. They are never, of course, going
to be entirely accurate. They are not always going to be static
because there will be ebbs and flows but it gives you an idea,
a flavour, of what is likely to come our way and those are issues
that we are looking at. All the issues that you highlight, Chairman,
are why we are cautiously favourable to it, because if you do
have individuals who are not given bail for the sole reason that
they are a national from another country and therefore are at
risk in terms of what that judicial system sees as being a non-returner,
that is obviously very serious and it is also potentially an unnecessary
restriction and restraint if through comity and mutual recognition
we were able to put in place a safe, fair and cost-effective system
to enable this to be done in a proportionate way. In the statement
I have just made, however, there are a whole set of precursors
or conditions which we would have to be satisfied could be delivered
before we could say "Actually, this now will inure to our
benefit and to the benefit of the other European countries and
their systems too." That is why I say we are in favour of
this in principle. The question is how it should be delivered.
Q424 Chairman: I appreciate that
you are not yourself, so to speak, defending the details in this
scheme. Indeed, it is helpful of you to indicate they are very
much in a state of flux and could alter substantially. Just a
word on Eurobail: I think it would be fair to say that the majority
of our witnesses—have you seen the evidence that we have
had?
Baroness Scotland of Asthal: I have not seen
all the evidence you have had but it may be that my team will
have done.
Q425 Chairman: I think it is fair
to say that the bulk of the evidence we have had indicates really
that it is not a runner, to put it in round terms, not least because
the great majority of Member States would really want to remain
in control in respect of those accused of offences for trial in
their own State, and the trouble with or the consequence of Eurobail
is that essentially, because all offences are, at least theoretically,
bailable, even murder, the decision would be taken not in the
state of trial but in the state of residence, and equally, of
course, if bail is refused, they would serve their time in custody
on remand in their home state. Would you agree from what you know
of it so far that it really does not look as if it is a serious
option any longer?
Baroness Scotland of Asthal: I think what there
may be are elements of Eurobail which could be conjoined with
elements of this order. I think you are absolutely right in saying
that Eurobail itself was not without flaw, and the proposal that
was made in relation to that was a proposal, and you would have
had to work really hard to make it workable. So there may be elements
of it which are good, just as there are clearly elements of the
suggestion on the table now which are also good. Is it possible
that what we might get at the end of the day is some sort of hybrid
between the two? Yes, it is, but we have to look to see what is
likely to come out. As I say, it has been very interesting that
the German Presidency only took one meeting on this and the Portuguese
Presidency is saying "Let us basically look very carefully
at how enthusiastic everybody else is before we proceed with it."
We will be one of the countries who will be saying, "We think
there are some very good things that we could do with this."
How much company we will have we will see once the Portuguese
get under way.
Q426 Chairman: Just before I call
on Lord Jay, we had a document from the Bundesrat and they, to
my surprise, suggest that the Commission's fundamental assumption
that foreign suspects are remanded in custody to an excessive
degree is simply not correct. That might colour Germany's view
that there is a lack of enthusiasm for any of this but I would
not myself suppose that to be the UK Government's approach.
Baroness Scotland of Asthal: No, it is not.[1]
Q427Lord Jay of Ewelme: I found that broad context
extremely helpful but my question was going to be whether you
had any sense, even from informal contact with other Member States
or from the one meeting that took place, as to whether there might
be, as a result of this orientation debate launched by the Portuguese,
a conclusion that yes, we should go down this path, in which case
we would clearly want to steer it in the right direction, or whether
you thought there was no realistic chance and it will just be
pushed into the long grass and we would hear no more about it.
Baroness Scotland of Asthal: I think it is a
really open question. This is not one where I can say long grass
territory is definite or that this is something that is enthusiastically
going to be taken up. What we have seen taking place more and
more is that countries are seeking to concentrate, actually in
a very British way, in a pragmatic way, on what works, what will
deliver real benefits, how we can get a practical outcome out
of this, and it very much depends, I think, on whether it is perceived
to be a Europe-wide issue. If you look at some of the things that
are now appearing much more successful, like Prüm, there
are some clear outcomes that have garnered a great deal of enthusiasm
for it through the German Presidency because people see that it
has utility on the ground and will have practical resonance. So
I think if there is a concentration on practicality and if there
are a number of other countries who have come to the cautious
but positive view that we have that this is something which has
utility and will assist, then I think that is likely to come out
of the Portuguese discussion. If, however, the German view, that
really this is not necessarily as pressing as others think it
to be, then of course it is likely to be more difficult.
Q428 Chairman: I think it would be
helpful if we discussed it on the basis that there is some prospect
of having some scheme of this character, otherwise we are all
wasting our time. It also seems to me that this is the scheme
on the table and, whilst it would be helpful to know how it could
be improved in the Government's view, it is worth discussing this
particular scheme, although recognising, as you have said, that
it is not necessarily to be regarded as in its final form.
Baroness Scotland of Asthal: Yes, and I think
it is important for this Committee to know that our assessment
is that it could have some real benefits in practice.
Q429 Lord Clinton-Davis: Can you,
Minister, summarise the representation which has been made to
your Department about this proposal by the main participants as
far as this is concerned?
Baroness Scotland of Asthal: I do not know whether
Ann has some clear details on that. Certainly, my impression is
that this has not been an issue which has been hotly discussed
at Council by Ministers. It is at the early stages therefore.
You will know, for instance, there is JHA council next Tuesday/Wednesday,
with a dinner on Monday night, and certainly this issue is not,
as far as I am aware, up for specific debate, so it is not at
the forefront. I do not know whether, Ann, you have any specific
detail about whether we have been lobbied in a particular country.
Ms McLaughlin: No, we have not so far. There
has been some informal discussion with the Commission, very brief
informal discussions before the working group meeting at the beginning
of January but that is it so far.
Q430 Chairman: The notion that there
should be some scheme, either Eurobail or this scheme or some
variant, has been around now for quite a long time. The Commission
of course have now given it voice and crystallised it in this
particular form but is there no sense that there is a will for
it generally?
Ms McLaughlin: There has not been anything that
has come through very strongly to us, no.
Q431 Chairman: Perhaps a few thousand
extra people in custody on remand is not a matter of great concern
around the Union.
Baroness Scotland of Asthal: I think it is,
and I think that is why one of the things that I think is quite
difficult for us dealing with it at this stage is to get concrete
indications of support or antipathy. If we were further down the
negotiation timetable, and if we had gone to Council and if we
had had discussions about this between colleagues, I would be
in a much better position to say to you "The Italians think
this" or "The Germans think that" or "The
French under Sarkozy are now changing and this is the picture."
What do I think? I think this is an issue which will become of
increasing importance, because we are working increasingly closely
with our European partners on crime in all its manifestations,
whether we are talking about people trafficking, interdiction
of drugs, terrorism, a whole plethora of areas where we are working
ever more closely with our international partners because the
nature of crime is changing. Even our local crime quite often
has international dimensions. That will mean that that there will
be offenders committing offences in comity with other offenders
around Europe who will be arrested in those other states. So this
is an issue which has become increasingly important to all of
us, and if you look at the debates that we have had on prisoner
transfers, for example, we know that prisoner transfer issues
are real issues between our European partners and have caused
quite a lot of debate and concern, and interior ministers across
Europe have identified it as an issue which we need to resolve
and address. I would reasonably anticipate that they may feel
the same in relation to this issue but this Committee also knows
it is a question of timing and how many other pressing portfolios
are before Council—not that people are not interested but
which portfolio will get priority. The fact that so much time,
energy and commitment has been devoted to it by the Commission
is a clear indication that they believe that this is a pressing
European issue that the Council should grip, and I can imagine,
by the way in which the papers have been presented, therefore,
it is an important one for them and for Europe. So I do not want
this Committee to think "We are going to do all this work
and it is not going to have any benefit," because even if
it were not used immediately, do I think this is an issue that
is going to go away in the longer term? No, I do not.
Q432 Chairman: Can we perhaps have
a look at some of the more detailed issues which arise? Even though
we recognise that you are not committed to this particular scheme
in its present form, under this scheme, would you share the Law
Society's view, for example, that you are going to need some sort
of tripartite procedure to set it off? If you are going to have,
say, an Englishman in Paris accused of rape and the question is
whether he should get bail from the French court as the issuing
authority, and if so, on what terms, that would then fall, if
an order is made, to be executed over here. Who should be talking
to whom about that issue in, say, Paris, where he stands accused?
How do you envisage it happening?
Baroness Scotland of Asthal: The first thing
to say, I think, is that we believe that we are going to have—I
know this is not as clear as you would like—a proper discussion
between the Member States that will permit agreement of what the
conditions will be. This whole issue is about what the conditions
are going to be, who is going to set them, how they are going
to be exercised, how they are going to be enforced and `what happens
if'. So in one sense, part of this becomes quite circular because
we have to know where are our partners are going to sit in relation
to their likely response to some of this. That is perhaps not
as helpful as you would like.
Q433 Chairman: We have a scheme,
and, as you say, of course, it deals with these things. Article
6 makes provision for certain conditions to be imposed at the
will of the issuing state; others to require agreement with the
executing authority. How should this process be undertaken? It
may be that governments simply have not yet formed views on these
sorts of detailed questions. I do not know.
Baroness Scotland of Asthal: We have and we
have not, first of all, but secondly, there is an issue, is there
not, as to who the executing authorities are going to be?
Q434 Chairman: That is indeed a question
we come to.
Baroness Scotland of Asthal: Is there a central
authority? If there is going to be a central authority, who should
that central authority be? Should there be a central authority
in each country similar to the central authority we have, say,
on the Hague Convention in relation to child abduction? If so,
how is that going to be paid for? What are going to be the rules
that will operate in relation to how the central authority will
work in unison with the executing authority? Should the executing
authority be the court? Certainly, that is something that we would
be more comfortable with in our jurisdiction because the court
has normally been the determining factor in making those decisions.
That is why it is all quite complex, and we have not come to a
firm conclusion as to which would be the better option, not least
because there are certain cost considerations in terms of how
it should be done and by whom, and all of those, I think, are
things that we are going to have to work through. So much of this
detail at this stage has not been consolidated, not least because
we are having to respond to what some of our partner countries
may wish. When we have done it before, we have done an audit almost
in terms of what structures are already in place in other countries,
because sometimes there is not a correlation between their system
and ours, and we have to identify what would look similar to our
system, whether it is going to be acceptable, whether we are going
to do it on a mutual recognition basis and, if so, what standard
that is going to entail. The questions that you are asking here
are going to be very similar to the questions we will be asking,
and that is why I say again, it is the devil in the detail, because
we want a system that (a) we think in principle this is a good
idea and (b) as Brits, we are renowned for pragmatism and our
ability to say "How will it work? Who will do it? Who is
going to be able to transfer this information? What will I recognise,
and if I'm going to recognise it, what have you got in your country
which will enable me to feel comfortable that there is a reciprocal
arrangement here that is likely to work?" All of that is
detail. Do we think that the ideas that are being put forward
by the Law Society and others are interesting? Yes, we do. Are
they necessarily going to be the ones that we would fly with?
We are not sure. It depends on some of the other issues that need
to be responded to. That is why I said right at the beginning
that we are very interested in the evidence that has been given
to this Committee, very interested in the ideas that you will
come up with and the judgements you will make, because they are
bound to be (a) of assistance and (b) of influence when we come
to make our final determination as to how we will propose to put
this forward. It has to be done in a way that does not trespass
on our own bail law, which would be deliverable within our system
in a way that is transparent, fair, accords with the ECHR and
delivers a better outcome than we currently have. Those are the
sort of parameters within which we are going to have to work.
Q435 Lord Lucas: May I ask a couple
of questions? Firstly, obtaining the suspect's consent to any
of these orders is going to make things a great deal easier. If
in every case the suspect's consent is required to an order, we
will have to worry a great deal less about the appropriateness
of the conditions that are applied, because if the suspect agrees
to them, that removes a lot of the problems. It becomes his decision
as to whether he wishes to return here on those terms.
Baroness Scotland of Asthal: I have to say,
Lord Lucas, that that is in itself rather challenging as an idea.
Can you imagine in our system saying to a defendant, "We
will only grant you bail if that is what you want"? The court
here makes a judicious assessment as to risk, as to propriety,
before granting or remanding in custody. I am just very doubtful
that the idea that consent would be required of a suspect defendant
is necessarily going to be the right way forward. It is not in
the current draft of the Framework Direction. Our domestic bail
processes have no requirement for consent to the imposition of
bail conditions and that is what we are talking about. I am just
not sure that that is necessarily going to be possible and helpful.
Chairman: Just to nail this, of course, he must have
his say as to what conditions are proposed but, those having been
settled, why would he ever not consent? He either goes free on
those conditions or he stays in prison in Paris. I am not sure
that consent, for my part, really adds anything. I am sorry.
Q436 Lord Lucas: I just raise the
question. The other speculation that I wish to raise is, in the
event that there is a general lack of enthusiasm or difficulties
being raised, whether this could not be started in a more loosely
coupled sort of way. If a foreign court were able to apply to
a central executing authority of some kind to say, "May we
bail this person in the UK on these terms?" and the negotiation
then proceeded happily, as long as that central executing authority
were given the powers to make this happen, there surely do not
need to be a lot of other things that go with it because it becomes
a system which will evolve by negotiation with individual countries,
who will settle the difficulties in practical cases over a period
of time.
Baroness Scotland of Asthal: We come back then,
do we not, to who the executing authority is going to be and what
the function of the central authority is going to be? For our
part, our executing authority is the court because that is the
body which is going to be able to make a judicious assessment
as to whether the rights of the individual are being catered for
properly, that it is proportionate, that the bail conditions,
if bail is granted, are not too onerous. All those issues are
going to be dealt with, so for us, the court is going to have
to probably be the executing authority if we are going to feel
comfortable with this process.
Q437 Chairman: And the issuing authority?
Baroness Scotland of Asthal: And the issuing
authority, question mark. You then come back to what is the issuing
authority going to be? You will know that in some countries they
have an administrative system, so the issuing authority may be
dependent upon who the issuing authority is in that state. The
state addressed may have a different issuing authority, but we
come back to whether we have mutual recognition, and there are
differences. For instance, if we just take France, some of the
things which are done administratively there are done by our courts
and vice versa, but if we were to say that, in relation to process
X, it is only a court which could do it, we would disentitle those
other states from using the system that they then operate, and
we are then into whether we are suggesting that we need to harmonise
those systems before we can operate it, which we are not. I think
that is why it is quite difficult because, if we have an issuing
authority which is recognised in that system and which we recognise,
is that sufficient?
Q438 Lord Lucas: As I was saying,
if we do this much more loosely, if we had an executing authority
in this country, a designated court, as we do for traffic offences,
and we gave them the power to accept our nationals on bail from
foreign authorities, that is all we need do. Then they could negotiate
with those foreign authorities as they saw fit, grant bail when
they saw fit, and bring back to begin with perhaps a small number
but, as we got used to the system, an increasing number of our
nationals to serve their bail here. We do not need, at least initially,
to have a lot of co-ordination. It is something we could do off
our own bat and encourage other countries to do too, and allow
a mutual system to grow up over time.
Baroness Scotland of Asthal: I think that would
be incredibly challenging because you would have to have a system
which was consistent so you would have fairness and, although
that is a very interesting idea, for myself, I cannot see how
it would work in practice.
Q439 Lord Lucas: Why do you have
to have fairness? We are looking to provide a benefit to our citizens.
If other countries choose not to provide a benefit to theirs,
to some extent it is not our problem.
Baroness Scotland of Asthal: I think it would
be fair to say that we have always developed policy in this country
predicated upon delivering a fair and transparent system. So it
is a fundamental premise upon which we have always sought to work.
I do not think we are really going to depart from that, if I can
say as gently as I can, in relation to this issue.
1 On examining the transcript the Government added:
The numbers affected by this proposal are not certain. The Government
position is not affected by this at present but as this develops,
a full impact assessment does need to be made to consider the
cost/benefits of the proposal. Back
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