Examination of Witnesses (Questions 440-459)
Baroness Scotland of Asthal QC, Ms Ann McLaughlin
and Ms Melissa Bullen
6 JUNE 2007
Q440 Lord Mance: I wanted to follow
up the difficulty which arises, which I think you have touched
on, from the wide definition of the concepts of issuing authority
and executing authority, which, as you have explained, include
in some domestic systems non-judicial individuals or persons holding
offices which we might not describe as judicial, although they
might be described as judicial elsewhere, such as a public prosecutor.
I fully accept your point that in this country we would operate
a system using a court or a judge, although no doubt that would
create problems as to how you channel the discussion to him/her
and get the decision from him/her, but we are talking, under this
scheme, about the recognition of decisions made abroad by foreign
issuing authorities, such as a decision that the suspect must
be arrested and transferred back to the issuing state under Article
18(1), such as a decision by the executing authority, which might
be a foreign public prosecutor under Article 16 that there had
been a breach. We are also talking, of course, about an initial
agreement between the issuing authority and an executing authority.
It does seem to me that there could be potential human rights
arguments here if we are being expected to recognise the decisions
of bodies which we would not recognise as necessarily judicial
bodies in this country. I think there is a potential problem.
Baroness Scotland of Asthal: That is why I say—and
I agree with you particularly in relation to Article 16—that
these are issues that we have to look at very carefully indeed
to make sure whatever we structure does comply with our ECHR obligations,
is transparent and would be therefore sound. All these issues
I think would be issues that we would have to look at in negotiating
on this particular Framework Decision.
Q441 Lord Bowness: I would like to
go back to where we are at the present moment, Minister. You said
in opening that this was an opportune time for us to be preparing
this report and it was an opportunity to make views known at an
early stage. You have also said that it is an issue which, in
your opinion, if not immediately, is going to have to be addressed,
and the general proposal is useful. Maybe this is happening but
I would, in a sense, be comforted to know: whilst I realise that
we are not in control of presidency agendas, is this not an enormous
opportunity for the UK to have discussions with our partners to
formulate a scheme as we think it ought to be worked, rather than
reacting to a proposal which lands on a table at a time not of
our choosing, in a presidency not of our choosing and, having
done that, to then get it on to the agenda? I hope, Minister,
you will be able to say that that is what is going to happen but
it does seem to me that it should be happening that way.
Baroness Scotland of Asthal: I think it is happening
on a number of agendas. If you look at the way in which we have
tried to push the European agenda on JHA forward, it has been
predicated on the practical, the deliverable, and those things
which will have immediate impact and, hopefully, outcomes for
our citizens. We have tried really hard on a whole series of portfolios
to do just that. So I can certainly assure the Committee that
this is an issue which, as I have said, we are supporting, albeit
I have tried to be clear about the caution with which we are giving
that support. Some of the issues already identified by Lord Mance
are things that we are going to grapple with. You cannot brush
those safeguards aside. What we have found—and I use Prüm
as an example—is where we have been able to quite energetically
engage in discussions with our colleagues, we have been able to
garner a reasonable amount of support on a number of items, and
we have on occasion been able to influence the shaping of things
so that we are together able to deliver something with which we
are not only comfortable but that we can feel a deal of satisfaction
with. This will be an issue of which, as I have said, her Majesty's
Government is cautiously supportive. I do not mean that cautiously
supportive to suggest there is any lack of lustre on this but
the questions that this Committee have set out are the questions
that we would have to internally have answered before we would
be able to say "Yes, this is a thoroughly good thing now
and we are happy to sign up to it."
Q442 Lord Bowness: I understand that
entirely and I accept that the Government may well have had successes
in various quarters on different issues. What I am really suggesting
is that, if nobody is terribly excited about this at the moment
but we think it would be useful, can you, Minister, give me an
assurance that we are actually going to go to work on getting
it together in a way which solves the problems which are clear
from the questions which have been articulated round the table,
so that we have something positive to put to our partners when
it is discussed? Indeed, perhaps when we have got it together,
we can press for it to be discussed rather than waiting for it
to happen at somebody else's initiative?
Baroness Scotland of Asthal: I am trying to
be as clear as I can that that is what I believe we are trying
to do. We are supportive. We are not negative. We have already
engaged in this work. Can I guarantee you that other people will
share our enthusiasm? No, I cannot.
Q443 Lord Mance: Can I just ask a
general question, without pushing it too hard. I understand that
this is a Framework Decision and therefore inevitably intended
to be filled out by the national legislators, but there has been
a certain degree of criticism of the way in which it has been
thought through, or not thought through. Indeed, it was put to
the Commission representatives, and it does cause one to wonder
whether there should not be some procedure for ensuring that a
draft emerges from the Commission—we were told it was a
final draft—which actually presents a more coherent appearance
and can be readily understood. You touched on the question of
enforcement. The draft is entirely opaque, and it is quite unclear
that it has the meaning which the Commission sought to attach
to it. Indeed, on the face of it, it has the opposite meaning.
This is not very satisfactory. I appreciate they do not have parliamentary
draughtsmen and they do not, apparently, use their legal department
for drafting but it does seem to me it might be a cause for reflection,
to use the European word, by governments.
Baroness Scotland of Asthal: I think the Commission
constantly give governments cause for reflection, and I think
their opportunity to hone what they give to us is, of course,
always there and I know that, certainly in the ten years that
I have had the privilege of being engaged in some of this work,
that has been a constant aspiration of many. I think that is all
I should say about that really.
Q444 Chairman: Whether this is a
good vehicle to try and revise the entire approach of the Commission
to drafting framework decisions will be, no doubt, for consideration.
I have to say—and this rather sceptical or cynical thought
crosses my mind—Prüm, the European arrest warrant,
the exchange of criminal information, all these other things,
one can understand the enthusiasm in Europe for all these because
it all adds to the fight against terrorism, crime, trafficking,
etc. The one thing about this problem here is that it does not
do any of those things at all. All it does is to help, if it comes
about, those few thousand too many people who are in custody on
remand. Do you think that is a possible reason why it fails to
attract some of the enthusiasm of competing projects?
Baroness Scotland of Asthal: I do not think
so. Certainly I have had a number of discussions with my counterparts
and ministers of the interior and ministers of justice, and the
issue of prisoner numbers, the issue of those on bail, and the
issue of how we deal with them has been an issue that I know I
have had discussions about in the margins with a number of my
colleagues. If you were to be uncharitable and turn it the other
way, whether it is helping people by giving them their liberty,
there is a pressing issue for those who are responsible for imprisoning
people that we all have difficulty on numbers, and one of the
issues is that we would quite like to look after the citizens
who are the nationals of that particular country. There is an
issue about making sure that we have our nationals in the right
place, if you like, particularly as many of those who offend are
not resident offenders; they are, if you like, passing trade,
passing through our countries. So I do not think that the fact
that this is an issue of liberty for them is impinging adversely
on their minds. I do think it is the problem of having a number
of very pressing, quite contentious issues with which to deal,
trying to get movement on those where you have the greatest amount
of assent first and looking to deliver things. One of the problems
we have had in the past is not delivering as much as the citizens
of our country would like us to deliver as quickly as we would
like to deliver for them, and therefore I think in the most recent
times the Council has tried to concentrate on what can be delivered
the most quickly, and has said, "Let us do that first"
and "Of course we want to do these other things but let us
get those things that can be delivered quickly delivered."
I almost get the impression round the table that there is a feeling
that there is not enthusiasm for this or that this is not a positive
move. I think it is a positive move and it may be that, if you
were to have discussions with me on Thursday, after I have been
to the JHA, after I have spoken to my colleagues in the interior
ministries, I will be saying "There is roaring enthusiasm.
They think it is the hottest thing known to man," but I cannot
say that. I have not had those discussions. I have not specifically
raised it myself. My colleague, Joan Ryan, has not particularly
raised it with me and, from what Ann McLaughlin says, officials
have not specifically received those sorts of inquiries. Just
to remind the Committee, that is not surprising because, if it
has only just got on to the Council agenda and there are a whole
load of other things to do, that would be normal and it does not
indicate enthusiasm or a lack of enthusiasm. It does not actually
indicate anything at the moment. I am certainly happy to say that
we could write to the Committee once we know more as to the level
of enthusiasm or otherwise there is for this particular Framework
Decision.
Q445 Chairman: That would be very
helpful. We would indeed welcome that. We would be interested
to know whether it is the intention of her Majesty's Government
to try and raise it up the agenda.
Baroness Scotland of Asthal: It is one of the
issues, along with a number of others, that we have had in mind.
I say to you absolutely frankly that I myself have not had this
specific Framework Decision within my purview, but then I have
been dealing with other things, like deportation with assurances,
Joan Ryan has been concentrating on Prüm. There is a whole
plethora of things. It does not mean that this is not one that
we should raise up the agenda; it is just not one that, to my
knowledge, has been first on the agenda, because there have been
so many the other things. I do not know whether either Melissa
or Ann can assist in terms of what may be available in the Department
about which I am not aware.
Chairman: May I suggest that two of the
most obvious selling points, if one were trying to urge other
Member States to adopt it with some enthusiasm, would be first,
that actually, it works to the extent that it does free up prison
places, and Heaven knows they are at an increasing premium, at
least in this jurisdiction, as we all know. Secondly, it will
actually have the result of releasing on bail people who should
be on bail rather than on remand and who may well actually be
acquitted in time and have served therefore terms of imprisonment
that they should not have.
Q446 Lord Jay of Ewelme: Again, it
is a sort of process question, Minister. I can see that in the
Department, and in any department, there are issues which absolutely
have to be dealt with because they are coming to the Council and
they are going to be at the centre of attention, and there are
other issues which, in a sense, are voluntary, the sorts of issues
in which the Department may be able to influence things at an
early stage and there will be a lot of those issues. I guess my
question is a resources point because you cannot possibly pick
up everything that you would be able to influence and then try
to do so. First of all, are there criteria for those issues which
you would think "ok" or is there some process for deciding
what are the directives, what are the issues, which you think
there is a real chance of influencing at an early stage in the
British interest and therefore you are going to do that, and is
this one of them?
Baroness Scotland of Asthal: I think this is
one of them because we do see that there could be real benefits.
I hope this Committee is familiar with how unusual it is for us
to be able to say that we are cautiously enthusiastic or cautiously
welcoming; that is quite a strong statement actually. Do I think
this is an issue which would inure to our benefit if we could
overcome the difficulties which are clear and inherent in the
detail? Yes, I do. Is this something which we will give support
to and, therefore, seek to explore? Yes, it is. Is it something
which we will try and garner support for across the board in a
way which would enable it to be safely delivered? I think that
is right. This has to be looked at with many of the issues with
which we are seeking to make progress on, all of them. If you
look at the issues on co-operation, and with Prüm we are
looking at co-operation between criminal justice agencies, trying
to get a better understanding between them, then this is all part
of a piece because it is predicated on identifying problems, trying
to find practical solutions which will deliver beneficial change
to our different European partners. We have to be very realistic
that some of these issues will have real benefits for some States
but other States may see that there are potential disadvantages
just on numbers. Are the countries that have more people abroad
than they have of other country nationals at home possibly going
to be less enthusiastic than those that have larger numbers at
home than abroad? Well, the Committee can make its own judgment
about that. There are issues of justice which I think should engage
all of us, and being fair to our citizens, enabling them to serve
their sentence or remain on bail nearer to their own homes, is
something upon which we, in Europe, are all agreed. We have said
in terms of prisoner transfer agreements that it is better for
a person to serve their sentence, if at all possible and practicable,
at home near to their friends and family and that is the more
humane option. However, if a proposal was being put forward which
would trespass materially against our own bail provisions and
make it too difficult for us, would we support such a proposal?
No, I am afraid we would not. One has to be realistically pragmatic
about these issues. I can see the noble Lord Bowness shaking his
head, but I know we have done this on a number of occasions. We
have been enthusiastic, we have tried to get our views across,
and on many occasions we have succeeded. On other occasions we
have not, and if the risks are too great, we have not been able
to continue with our enthusiastic support.
Q447 Lord Bowness: Forgive me if
I shook my head, I do not disagree with anything the Minister
said, I think what I was seeking to ask earlier and, as I understand
it, what Lord Jay was suggesting—I would not want to put
words in his mouth—all that you say is correct, but are
we going to take the initiative on this particular proposal at
an early stage?
Baroness Scotland of Asthal: By virtue of the
fact that we have indicated our support, we already have. It is
not our proposal but we have already indicated that we, the UK,
are supportive of this proposal. What we are engaging in now is
the detail, that we are not a country that said, "We do not
think this is a good idea. We don't think it should be part of
the way forward. We don't think we should be discussing it, and
we are not going to support the discussion on it further",
that is not our position. Our position is supportive and our position
is we would now want to look at the detail, that is where we are.
Q448 Chairman: Can we look at one
or two questions of detail. On the question of non-recognition,
are you content with the Framework Decision as presently drafted
on that, or should Member States be permitted to refuse recognition
on additional grounds, such as dual criminality? Have you any
views? If you have not, please, just say so.
Baroness Scotland of Asthal: We have not considered
determined views, we are continuing to consider the proposed grounds,
for instance, for refusal. In terms of dual criminality, which
I think is what you are looking at, is it not?
Q449 Chairman: Dual criminality is
not presently there, but should it be?
Baroness Scotland of Asthal: We have not made
dual criminality a precondition. You will know that in the European
Arrest Warrant, in the Extradition Act, we have had it as dual
criminality. It would be fair to say that dual criminality has
been an issue which many other states have wanted and we have
been happy to agree to in those other situations, but we have
not come to a settled position. Our position has always been we
look at the merits of the proposal on the table; if those merits
can be delivered without dual criminality, we have not let that
stand in the way of agreement; and if they cannot be delivered
without dual criminality, then we have.
Q450 Chairman: What about age of
criminal responsibility? Obviously at the moment that is a discretionary
ground for refusing recognition, but is that a good idea? Ought
one not possibly to reflect that if you refuse to accept this
scheme on that ground you are going to be condemning the under-age
to custody when otherwise they might be on bail?
Baroness Scotland of Asthal: We have said that
we think age should be a matter for the executing state, that
is our view. The reason for that is, you will know, there is a
very broad spectrum in the European states as to the age of criminal
responsibility. There are only, I think, two or maybe three countries
that have a lower age of criminal responsibility than we do. I
think one of them is Ireland, the other one is Scotland, because
I think one is seven and the other one is eight, and we are ten,
but many of the other European States have it as high as 16, so
there is a spectrum. That is why we think it should be at the
discretion of the executing State because we are not going to
necessarily persuade any given State in a short space of time
that the age of criminal responsibility is necessarily to be changed.
Q451 Chairman: Can we then look at
Article 15, which considers the obligation to return people under
one of these European Supervision Orders as against competing
obligations under European Arrest Warrants, extradition requests
and the ICC statute. It appears to read: "Those all have
priority over an obligation to return under a European Supervision
Order". Are you happy with that? Should the other things
take precedence?
Baroness Scotland of Asthal: We really believe
that Article 15 ought to mean that the ESO will not impede other
proceedings which may arise after release. We are inclined towards
allowing judicial flexibility in the consideration of which obligation
should be given priority, depending on the circumstances of the
relative case. We believe that the precedence of the European
Arrest Warrant, Extradition Orders or domestic proceedings should
be determined by the circumstances and criteria set out in each
of those processes.
Q452 Chairman: Under the European
Arrest Warrant scheme, as I understand it, domestic cases take
precedence, so there it is, if somebody subject to a European
Arrest Warrant has absconded and may be on trial for terrorism
abroad but they are prosecuted for shoplifting here, they have
to be either prosecuted or the proceedings discontinued here before
they can progress the European Arrest Warrant. Is that a good
idea?
Baroness Scotland of Asthal: It depends on the
circumstances of the case and the criteria which are going to
be applied. The Committee will know, and know only too well, the
difficulty we had in the negotiation of the European Arrest Warrant
and, having got that European Arrest Warrant, the challenge that
it presented to us taking it through Parliament. Therefore, I
think it would be right to say that experience should be borne
in mind when we look at how we go forward here. That is why we
believe the precedence of the European Arrest Warrant and Extradition
Orders or the domestic proceedings would have to be determined
by the circumstances and the criteria set out in each of those
processes.
Q453 Chairman: There should be flexibility?
Baroness Scotland of Asthal: Yes.
Q454 Lord Mance: Minister, is that
the effect of the present draft? It does not seem to be. The present
draft seems to give priority to a European Arrest Warrant if it
emerges or to a request for extradition presented by a third party
if one supervenes.
Baroness Scotland of Asthal: I do not want to
sound like a stuck record, but to remind the Committee, first
of all, that is not necessarily the draft which is going to prevail
at the end of the day and, secondly, all I can give you at this
stage is our preliminary and not our considered long-term view.
Q455 Chairman: This is your aim rather
than your interpretation?
Baroness Scotland of Asthal: Yes. In any of
the comments which I make, I am not talking about the draft because
the draft cannot be and is not the final construct which is likely
to be agreed. This is the first preliminary sortie into this area,
all of which would be subject to negotiation.
Q456 Chairman: Can we finally have
your views on what should be the position, put aside what is the
position under the Framework agreement, as to costs, and should
there be a UK specific resource impact assessment and so forth?
What view does the Government take about the cost implications
which will inevitably attach to any such scheme?
Baroness Scotland of Asthal: One of the issues
I raised with the Committee right at the beginning was the whole
issue of cost because whether this is deliverable at a reasonable
cost is obviously going to be a matter of real consideration as
to whether we can or cannot deliver it and find it acceptable.
The drive must be to construct a system which will be efficient,
effective and also cost-efficient and cost-effective if it is
going to have any real utility. Therefore, if you were to cost
the current structure which is being proposed, it is likely that
it would be cost-inefficient, but that is not necessarily the
scheme we will be identifying or supporting at the end of the
day. It is clear that this scheme is going to have resource implications
and it is going to have resource implications for all of the agencies
involved in this process. Therefore, I think it is going to be
very important for us to undertake, as we would with our own legislation,
a full impact assessment to make that validation.
Q457 Chairman: Really you are saying
there is not much point in doing that in respect of this scheme
because this scheme, frankly, is just a talking point, so there
is going to be a different and better scheme. I would like to
know what scheme the Government would want to put in its place.
Have you got a draft scheme?
Baroness Scotland of Asthal: We have not got
a draft scheme.
Q458 Chairman: Any thoughts of producing
one?
Baroness Scotland of Asthal: We have started
to work on issues in relation to prison plans. We are not certain
of how many numbers we are talking about, how many people would
have to come back and how many people would be sent. We are looking
at the options internally. We are trying to discover what the
practical implications would be because once we have done that,
of course it better enables us to advocate a system which we think
would work. With our European partners we have done that in relation
to other schemes which have been if not similar to this, certainly
within the same framework. I do not want to in any way frustrate
the Committee, but we are right at the beginning of this process
and, therefore, I can only say to you that we are undertaking
this work, looking at it, we think there will be real benefits,
we think there are real advantages for individuals and this is
a good idea, but the practicalities of it are being worked at
now.
Q459 Chairman: By whom?
Baroness Scotland of Asthal: This is an issue
which is being done both by the Home Office and, now, because
of our new configuration, also with the Ministry of Justice. The
Office for Criminal Justice Reform, which is the unit that is
tripartite, which engages the Home Office, the Attorney General's
office and the MoJ, which is responsible for delivering the criminal
justice process in a way that makes better sense, perhaps, than
it did before, will be instrumental in assisting us in looking
at this work and the impact.
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