Select Committee on European Union Fortieth Report


SURRENDER PROCEDURES BETWEEN THE EU AND ICELAND AND NORWAY (8762/06, 9226/06)

Letter from the Chairman to Joan Ryan MP, Parliamentary Under Secretary of State, Home Office

  Sub-Committee E (Law and Institutions) considered this proposal at its meeting of 21 June 2006.

  The Committee recently reported on the European Arrest Warrant (European Arrest Warrant—Recent Developments (30th Report of Session 2005-06, HL Paper 156) and found it to have a key role to play in the fight against terrorism and in bringing those accused of serious crime to justice (paragraph 17). We therefore welcome in principle the extension of these simplified surrender procedures to Norway and Iceland.

  We note that the proposal's provisions address some of the concerns which have been raised in respect of the EAW Framework Decision. In particular, the abolition of dual criminality for a specified list of offences is not mandatory: Article 3 allows States to choose whether to abolish dual criminality. Do you agree that it might be helpful to allow States to make a declaration in respect of particular offences in the Article 3 list? The current approach appears to require States to accept the abolition of dual criminality for all offences listed or for none.

  The Committee is concerned to ensure that there is a consistent interpretation of the instruments relating to the EAW. It therefore welcomes Article 37a of the proposed agreement. However, the provision does not outline what is to be done where the review mechanism reveals a difference of approach between the courts. The EEA Agreement may provide a useful precedent. As you know, Article 105 of that Agreement specifically provides for a dispute resolution procedure in circumstances where attempts to achieve a homogenous interpretation have failed. The dispute resolution procedure set out in Article 111 EEA is far more detailed than that proposed in Article 37 of the proposed agreement. Might the provisions of the proposed agreement be strengthened to reflect more closely those agreed in the EEA Agreement? Would it be desirable to agree a provision equivalent to Protocol 34 to the EEA Agreement allowing Norway and Iceland to make a preliminary reference to the ECJ (Article 35 TEU allows Member States to accept the jurisdiction of the ECJ in Title VI matters)?

  We note that in your EM you say that as the proposal is not depositable you have submitted it for information only. We are surprised that the Government did not voluntarily submit the proposed agreement for scrutiny at an earlier stage, given the importance of the subject matter and the well-known interest of both Scrutiny Committees in the EAW. We note that a general approach was agreed on 28 April 2006. We nevertheless have decided to hold the proposed agreement under scrutiny.

22 June 2006

Letter from Joan Ryan MP to the Chairman

  Thank you for your letter of 22 June 2006 in relation to the above draft agreement. I am pleased that the Committee has welcomed, in principle, the extension of the simplified surrender procedures to Norway and Iceland.

  I will deal with your queries in the order they are posed. Firstly, with regard to dual criminality, some Member States are not able, for constitutional reasons, to abolish the dual criminality rule with non-EU Member States. Furthermore, Iceland will not abolish dual criminality and some Member States are not willing to do business on an unreciprocal basis. This Article therefore has to be based on reciprocity.

  The UK is not in this position and we are of the opinion that the Surrender Agreement should be applied consistently with the Framework Decision on the European Arrest Warrant. However, in order to secure agreement of the Surrender Agreement, it was necessary to allow those Member States to be able to disapply the dual criminality provision.

  Secondly, you raise the issue of the dispute resolution procedure and whether it would be desirable to follow the precedent of the EEA Agreement, in particular Protocol 34 to the EEA Agreement, which allows Norway and Iceland to make a preliminary reference to the ECJ. As you say, Article 35 TEU allows Member States to accept the preliminary reference jurisdiction of the ECJ in Title VI matters. The UK has chosen not to do so. In these circumstances, whilst we would not object to the inclusion of a provision equivalent to Protocol 34 in this agreement, it is not something that we have pushed for during the negotiations.

  Thirdly, you ask why the Government did not voluntarily submit the Agreement for scrutiny at an earlier stage. The Government cannot submit to the Committees any document which is classified. Since this is an external agreement with third countries, the negotiations were confidential. The first de-classified version of the agreement was given to the Committees as soon as it was issued. The first depositable text the Home Office received was in May, after the General Approach had been agreed at the April Council meeting. Until that time the Agreement had a restricted marking and could not therefore be deposited for scrutiny.

7 July 2006

Letter from the Chairman to Joan Ryan MP

  Thank you for your letter of 7 July which was considered by Sub-Committee E (Law and Institutions).

DUAL CRIMINALITY

  We note that some Member States are not able, for constitutional reasons, to abolish the dual criminality rule. Of those States which are so able, would it be helpful to allow them to abolish the rule for only some of the offences listed in Article 3(4)? For example, States may be happy to abolish the rule of dual criminality in respect of terrorism, but not in respect of the less clearly understood offence of "racism and xenophobia". We recall that the list has been the subject of some debate in the Council in relation to other instruments.

DISPUTE RESOLUTION

  Do you consider the EEA agreement, and in particular Articles 105 and 111, to provide a useful precedent in considering what general dispute resolution measures should be included in the present proposal?

  You say that the Government would not object to a provision allowing the courts of Norway and Iceland to make preliminary references to the ECJ, but explain that this is not something you have pushed for. Do you intend to raise this matter in the Council? Was this discussed in previous negotiations? If such a provision is not to be included, do you agree that this could have a negative impact on the homogenous interpretation of the Agreement's provisions?

DEPOSIT OF INSTRUMENT

  We recognise that there are difficulties in submitting classified documents to Parliament. We note, however, that a General Approach was agreed on 28 April but you did not submit your EM to this House until June. We trust that in the future every effort will be made to submit de-classified proposals immediately after de-classification to allow this Committee reasonable time to conduct its scrutiny.

  The Committee decided to retain the proposal under scrutiny.

25 July 2006

Letter from Joan Ryan MP to the Chairman

  Thank you for your letter of 25 July 2006 in response to my letter dated 7 July 2006, in relation to the above draft agreement.

DUAL CRIMINALITY

  I understand that some Member States are not prepared to abolish the dual criminality rule with Norway and Iceland because they are not EU Member States and that it has nothing to do with the contents or interpretation of the framework list of offences for which the dual criminality test is abolished. Had some Member States had an interest in a partial application of the framework list, then they would have raised this during the course of the negotiations which was not the case.

DISPUTE RESOLUTION

  You ask whether we consider that Artilce 105 and 111 of the EEA Agreement provide a useful precedent in considering what general dispute resolution measures should be included in the present proposal. Article 37a of the proposed agreement follows the precedent of Article 105 of the EEA Agreement. As you pointed out in your previous letter, however, the dispute resolution procedure in Article 111 of the EEA Agreement is more detailed than that proposed in Article 37 of the proposed agreement. Whilst we agree that Article 111 of the EEA Agreement could be used as a precedent we consider that in practise Article 37 as presently drafted should be sufficient to enable the resolution of any dispute that should occur.

  You also raise a point of possibility of allowing the courts of Norway and Iceland to make preliminary references to the European Court of Justice (ECJ) under the proposed agreement. Even if there is no provision for preliminary references to be made from the courts of Norway and Iceland (so that the position in those countries is the same as that prevailing in the UK in relation to third pillar matters) Articles 37 and 37a of the agreement will still be available for the purpose of pursuing as uniform application and interpretation as possible of the provisions of the agreement.

DEPOSIT OF INSTRUMENT

  Whilst an EM was submitted on 18 May, some errors were identified. The initial EM was withdrawn and a new EM drafted. Unfortunately this led to the delay in submitting the revised EM until 9 June, for which I apologise. Declassified versions of the draft agreement and the accompanying annex containing the format for the arrest warrant were published on 3 May and 12 May respectively. These documents were deposited on 16 May and, as such, were provided at the earliest possible opportunity to inform the Committees of developments towards conclusion, in view of your interest in these matters.

12 September 2006



 
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