House of Lords - European Union

Select Committee on European Union Second Report

CHAPTER 3: the evolving uk position

29. When the proposal for a Framework Decision on procedural rights was first published by the Commission in Spring 2004, the Government's response was positive. In her Explanatory Memorandum, then Home Office Minister Caroline Flint said, "The Government broadly support the proposal … We feel that common minimum standards would also provide increased clarity to EU (including UK) nationals as to their rights in criminal proceedings throughout the EU."[22] Home Office officials, giving evidence to this Committee in November 2004, expanded on the Government's position: "It is necessary that there is sufficient trust and confidence between Member States to achieve effective judicial cooperation … it is clear that the Framework Decision addresses some core issues which would help to ensure greater visibility of existing rights under the ECHR and to make sure that those rights are applied in a more consistent way across the European Union."[23]

30. The Government did express some concerns regarding "specific details within the text"[24] but their overall conclusion was that "the basic content of the Framework Decision is right".[25]

Current Government position on the Framework Decision

31. The Attorney General confirmed that there has been a change of policy within the Government and explained that this has "gone alongside the development in the [proposed Framework Decision] itself". The Government's original support for the proposal was based on the understanding that it created possibilities for raising standards and that care would be taken to avoid creating confusion between the Framework Decision and the ECHR. However, the Attorney General explained that the text of the draft Framework Decision has become more general and vague and that the risk of a clash with the ECHR is now "quite significant". He explained that the benefits of the proposal had been lost but the problems had not been solved and concluded, "We cannot see, at the moment, that the current draft really offers any clear benefits to the citizen" (QQ 7 & 32).

GENERAL AND VAGUE RIGHTS

32. The Commission's proposal provided for a number of rights in some detail. Member States' opposition to certain rights has led to the rights in the current draft Framework Decision being whittled down to the five more general rights outlined in the previous chapter. However, far from solving the problems, the Government consider that it creates "further difficulties of uncertainty". The Attorney General explained that, "if there were real, substantial enhancements to protection which we supported through a binding text, one would look at what the benefit of that, from the point of view of the citizens, was compared with the disadvantage of the risk of legal uncertainty" (QQ 4 & 31).

33. We agree with the Government that the current basic level of rights outlined in the proposed Framework Decision is disappointing. The removal of the recording of police interviews provisions and the provisions relating to a Letter of Rights, the watering down of other rights and the desire for exceptions to the rights guaranteed has thrown into doubt the utility of concluding the Framework Decision at all. In our previous Report on procedural rights we called for an instrument which was truly something worthwhile. The procedural rights Framework Decision can no longer be described as such and we see little value in agreeing the instrument as currently drafted.

34. In reaching this conclusion we do not ignore the role which the Member States have played in reducing the proposal to its current level. As with all international negotiations, there is a delicate balance of interests for negotiating parties. In the present case, national interests may have taken precedence over the desire to conclude an instrument which would add value. Reservations placed on the numerous revised texts would seem to illustrate the extent to which Member States have been unwilling to compromise.[26]

35. We urge the Government to encourage Member States to look beyond their own criminal justice systems and recognise the benefits which a binding Framework Decision could bring for all EU citizens moving within the Union. The Government are rightly proud of the high standards of procedural rights which are generally observed across the United Kingdom and suggest that practical measures could help all Member States meet the requirements of the ECHR (QQ 16 & 24). It is precisely because of the high standards in this country that we consider that British citizens have the most to gain from this proposal. British citizens may travel to countries where police interviews are not recorded and where access to interpretation is not freely available. Furthermore, they are unlikely to be familiar with the rights available to them in other Member States. The practical measures envisaged by the Government, although potentially helpful, would be optional and introduced by Member States as they see fit. Citizens should be able to exercise their free movement rights in the knowledge that, if they find themselves having to deal with other EU criminal justice systems, they will be entitled to similar procedural safeguards to those that they would receive in their home States.

36. Minimum standards already exist across the Union, namely the rights set out in the ECHR. The key decision which must be made before any EU action—binding or otherwise—in the field of procedural rights can be taken is whether measures should go beyond the guarantees of the ECHR. Once this general point of principle has been agreed, then it is likely to be easier to draft the appropriate measures. The extent to which EU rights should exceed those provided for in the ECHR is discussed in the next section.

OVERLAP WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS

37. As with many initiatives by the EU in the field of fundamental rights, there is a concern that action by the Member States may conflict with and undermine the work of the Council of Europe, which could damage human rights in Europe. There appear to be two principal ECHR-related concerns in respect of the present proposed Framework Decision (Q 13):

The extent of the rights guaranteed under the Framework Decision and whether they are intended merely to set out a means of complying with ECHR standards or whether they are intended to go further than the ECHR.

The "another layer, another player" issue—the existence of two parallel rights regimes could cause confusion in this field and may lead to increased and divergent litigation before the relevant courts.

A further area of concern, which has not been publicly expressed, may be the potential loss of the margin of appreciation generally afforded to States by the European Court of Human Rights in implementing ECHR rights. This would be particularly relevant in the fight against terrorism and organised crime, where changes to finely-balanced existing national legislation required by any Framework Decision might risk falling foul of the ECHR provisions. In this regard, it should be recalled that Third Pillar measures always leave some discretion for Member States as to how to implement legislation: Framework Decisions are "binding on the Member States as to the result to be achieved but … leave to the national authorities the choice of form and methods".[27] It may also be that frequent references to national law throughout the proposal are intended to reassure Member States on this point; if the political will to provide some flexibility exists, then we do not doubt that a solution can be found.[28]

Extent of rights under the Framework Decision

38. The Commission's Explanatory Memorandum explained that the proposal was intended to "enhance the rights of all suspects and defendants generally" by promoting compliance with Articles 5 and 6 of the ECHR at a consistent standard.[29] A number of the Recitals of the original Framework Decision expressly stipulated that the provisions of the proposal do not impose obligations on Member States that go further than the ECHR but merely set out common ways of complying with it.[30] The Austrian Presidency draft repeats this language in respect of the right to legal assistance[31] but is silent on the impact of other provisions of the Framework Decision.

39. The Attorney General noted that there is some uncertainty as to whether the proposed Framework Decision intends to go further than the ECHR (Q 13). As regards the right to legal assistance for example, despite a Recital to the effect that the provisions are not intended to go further than the ECHR, the Government consider that the provisions do go beyond the guarantees in the ECHR.[32] Explaining the UK's concerns, the Attorney General said, "it is not, in drafting terms, terribly satisfactory when something in its substantive form looks as if it might go beyond [the ECHR] but the intention is that it should not". He did, however, accept that this sort of problem could potentially be resolved by further drafting (Q 34).

40. As for specific cases of concern, the Attorney General pointed to the lack of clarity in Articles 3(3) and 3(4) as to when the right to legal assistance arises and suggested that this might have the effect of extending the right to legal assistance to those subject to deprivation of liberty prior to trial, or to EAW or surrender proceedings, from the moment of the deprivation of liberty, and not from the moment that the individual is charged with a criminal offence.[33] He also referred to Article 2 of the proposed Framework Decision, which appears to extend the right to information guaranteed under Article 6(3)(a) of the ECHR to EAW proceedings.[34] The Attorney General pointed out that such proceedings do not currently benefit from any Article 6 rights: specific detention rights are set out in Article 5 of the ECHR. If the intention of the proposed Framework Decision is not to go beyond the provisions of the ECHR, then the right to information in EAW and other surrender cases should be aligned with the right in Article 5(2) of the ECHR which provides only for prompt information, in a language understood by the detainee, of the reasons for his arrest and any charge against him.[35]

41. There is a need for agreement in the Council as to how far the proposed Framework Decision should go. Without a clear statement of intention, the scope for uncertainty, incoherence and inconsistency with the jurisprudence of the European Court of Human Rights is great.

42. We consider that there is a strong case for setting out rights which go beyond the guarantees of the ECHR. This would bring real benefits for citizens of the EU. It would also address concerns that the rights in the Framework Decision are too general and vague.

43. In light of the Government's justified concerns regarding the increasingly vague and general nature of the rights contained in the Framework Decision, and their initial support for an instrument that might actually improve the human rights position of individuals in the EU, it might reasonably be expected that they would view any measures which go beyond the rights guaranteed in the ECHR very favourably (QQ 4, 7, 32 & 49). We assume that the Government remain in principle committed to setting higher standards provided that consistency with the ECHR is assured. We encourage them to press for a similar commitment from other Member States.

44. As we have said in the past, we recognise the importance of promoting consistency and coherence between the work of the EU and that of the Council of Europe.[36] We consider below how to minimise conflicts as regards the procedural rights Framework Decision.

Another layer, another player

45. The problems raised by the existence of two separate systems for the protection of fundamental rights in Europe are not new. They were considered in the context of the EU Charter of Fundamental Rights and more recently during the negotiations on the proposal for establishing a Fundamental Rights Agency in the EU.[37] From the outset of negotiations on the Framework Decision, the Government have sought assurances that conflicts with the ECHR would be minimised. The Attorney General explained that their "high level concern is to avoid unnecessary duplication with the European Convention on Human Rights and the risk of legal uncertainty for citizens and for Member States" (QQ 7 & 32).

46. The concerns are twofold: firstly, adding a further layer of remedies for those who consider their fundamental rights to have been breached may lead to increased and protracted litigation;[38] second, the existence of two different courts reviewing the application by Member States of fundamental rights could lead to conflicting judgments and uncertainty (Q 4).[39]

47. The possibility of an increase in the volume of litigation before the courts is unavoidable. If further remedies are available then they are likely to be pursued by those who have the resources to do so. However, this potential increase should be balanced against the possibility that more robust national standards required by the Framework Decision may lead to a reduction in the number of cases taken to both the domestic courts and on to Strasbourg. It should also be recognised that appeals to Strasbourg following the conclusion of domestic cases involving an ECJ preliminary reference, however undesirable from a delay point of view, may help to reduce inconsistencies in interpretation between the two courts.

48. The Attorney General pointed to an example of how differences may well emerge between the two jurisdictions on the scope of the proposed Framework Decision (Q 34). Article 1 provides that it applies to persons "subject to criminal proceedings", a phrase which is to be interpreted in accordance with national law while respecting the ECHR and its caselaw. The term "criminal proceedings" is taken up in most other articles of the proposal, the only exception being Article 3, which talks of persons "charged with a criminal offence". The Attorney General highlighted the problems this is likely to cause in EU States, which under their national laws define different kinds of proceedings in different ways. The European Court of Human Rights has overcome this difficulty by stressing on a number of occasions that the concept of "criminal charge" is an autonomous one. It does not concern itself with national definitions and instead applies its own test to decide whether the proceedings are criminal in nature. The Attorney General argued that the Framework Decision definition is a "fudge, intended to overcome past difficulties over agreeing a single definition of criminal proceedings".[40]

49. The danger of diverging, or potentially conflicting, jurisprudence is a real one, as the existing caselaw highlights, but there may be ways to reduce this risk. As the Attorney General emphasised, "if they have different wording, then the risk of them reaching different conclusions is great" (Q 13). So by aligning the language of the Framework Decision more closely with that of the ECHR and the jurisprudence of the European Court of Human Rights, for example, the risk of divergence and confusion is likely to be more limited. The Council of Europe itself agrees that the proposal could be made clearer and much more compatible with the Convention (Q 4). In a paper prepared at the request of the Finnish Presidency, the Council of Europe makes a number of suggestions in order to try and achieve a greater level of consistency and these ought to be fully explored by Member States.[41]

50. We do not consider that it is reasonable to oppose action on fundamental rights within the EU simply on the basis that the Council of Europe is a European organisation for the protection of human rights. This is a view implicitly shared by the Government (Q 44). States have an obligation to ensure respect for fundamental rights and this obligation can be met through national legislation or international agreements, provided always that the guarantees of the ECHR are respected.[42]

51. While we commend the excellent work of the Council of Europe, and in particular of the European Court of Human Rights, in ensuring human rights protection in Europe, the shortcomings of this system should not be ignored. In an organisation which covers countries as diverse as the United Kingdom, Turkey and Russia, the standards set are inevitably aimed at securing minimum safeguards at a level acceptable to all its members; there is a significant backlog of cases pending before the Strasbourg Court, which is only expected to increase; and there is no means of enforcing a judgment of the Court of Human Rights. EU cooperation is at a far more advanced stage. The agreement of a number of measures in the criminal justice sphere on surrender proceedings, organised crime and terrorism provides an example of how action can be coordinated across the EU at a level which could not currently be achieved in the Council of Europe and puts the EU in a position to set higher standards. While Third Pillar measures do not benefit from the same stringent enforcement measures available under the First Pillar, there is nonetheless greater scope for securing enforcement in the EU than in the Council of Europe, and future constitutional developments may bring further improvements here.

52. We still support EC/EU accession to the ECHR.[43] This may also be one way of resolving some of the complex issues which the current dual structure creates.

Government support for practical measures

53. The Government have consistently expressed a strong commitment to measures which would enhance better compliance with the ECHR. As the rights in the Framework Decision have diminished, the attraction of a set of practical measures has increased. The Attorney General set out the Government's position quite clearly: "we are not satisfied that the present proposal is worthwhile. On the other hand, practical measures which can bring tangible benefits we think is something which ought to be pursued" (QQ 7, 32 & 49). In the Attorney General's view, practical measures would help to make ECHR guarantees a "reality", an approach which is supported by the Council of Europe (QQ 16 & 23).

54. The Attorney General was also keen to emphasise that there could be a substantial amount of funding available for practical measures under the Commission's Justice and Home Affairs budget. He explained that the Criminal Justice Programme had something like €190 million available over the next seven years (QQ 24, 30 & 46).

55. We find it surprising that the list of practical measures proposed does not include encouraging the recording of police interviews, which we understand to be of key importance for the Government. The Attorney General told us that the draft Resolution, "is intended as an illustrative list of the sorts of things which could be dealt with" and the Government have encouraged Member States to suggest other measures that they think would help. He accepted that the recording of police interviews may not be practicable given that it appears not to appeal to a number of Member States but concluded that he would be "very happy" to put it forward (QQ 52-54). Despite the potential opposition, we support the Government in their undertaking to press for the inclusion of this measure. If practical measures are to be agreed by the Member States, we would expect them to meet the test which has been applied to the Framework Decision: they must add something to the existing protection already available in the EU.

The scope for a future Framework Decision

56. The Attorney General told us that, "having an alternative route does not rule out having a binding Framework Decision, or certainly does not rule it out for all time". The introduction of practical measures might therefore be viewed as a relatively straightforward immediate step to improve defendants' rights in the EU while negotiations on the content of binding legislation continue. However, Lord Goldsmith stressed that this will be a matter for Member States' agreement; given the time and resources involved in negotiating legislative proposals and the current opposition to a binding Framework Decision, Member States and the Commission may not consider this a productive course of action (QQ 28 & 47).

57. We strongly support the use of Union funds, where appropriate, to introduce immediate measures to improve defendants' rights across the EU. However, we do not consider that this should be viewed as an adequate long-term alternative to binding legislation which commits Member States to higher standards in procedural rights in criminal proceedings. While we are opposed to more resources being wasted on a proposal to which a number of Member States are strongly opposed, we urge the Government, together with the Commission and Member States, to evaluate the position subsequent to practical measures being adopted with a view to proposing acceptable binding legislation in due course.

Government support for the Hague Programme

58. The proposed Framework Decision on procedural rights is an important criminal justice measure provided for by the Hague Programme.[44] It was to be agreed under the Hague timetable by the end of 2005. A year has passed since this deadline and the Framework Decision is no closer to being agreed. This is not the only dossier in the Hague Programme to have met with significant opposition from Member States.

59. The Attorney General emphasised the Government's continuing support for the Hague Programme. However, he pointed to the difficulties which have arisen for Third Pillar legislation as a result of the failure to ratify the Constitutional Treaty. This Treaty would have brought important changes to the way criminal justice measures are agreed in the Council—most notably by removing the need for unanimity. The absence of the Treaty means that any Member State may block the adoption of a proposal which it does not like. As a result, there has recently been a call by a number of Member States for the EU to "focus on a limited number of areas where real progress could be made rather than a larger number of measures which were getting bogged down in differences". The Attorney General concluded that, "some re-prioritisation of JHA priorities may well be appropriate" (QQ 35-40).

60. At their December 2006 meeting, EU Justice and Home Affairs Ministers reaffirmed the Council's determination to take forward the remaining priority measures set out in the Hague Programme in keeping with the agreed deadlines. The Council considered that, along with certain other aspects of the Programme, mutual recognition in criminal matters deserved particular attention.

61. It is disappointing that only two years after agreeing the Hague Programme of measures in the field of Justice and Home Affairs, measures envisaged are lacking support from Member States. While the Government stress their commitment to the Hague Programme, they nonetheless see a need for what they call "re-prioritisation". The Conclusions of the December Justice and Home Affairs Council are encouraging, but it remains to be seen whether Member States are willing to follow this through with genuine efforts to agree outstanding measures. The Commission has recently launched a broad review of the Hague Programme and it is not clear whether a revised Programme will be produced at some point in the future.[45]

62. In our Report on the Hague Programme[46] we expressed concern at the emphasis placed on security considerations at the expense of respect for fundamental rights. We called on the Commission and Member States to give full weight to the need to protect fundamental rights when developing and implementing the Programme.[47] The failure to date to reach agreement on the procedural rights Framework Decision should not be viewed as justification for rewriting the Hague Programme to remove the more controversial justice and freedom-based measures. We encourage the Government to participate fully in the Hague Programme review and urge them to ensure that the final Programme and Action Plan balance the need for security with protection of citizens' rights, which is a founding principle of the European Union.[48]

22 Government Explanatory Memorandum of 20 May 2004 regarding document 9318/04, paragraph 13. Back

23 Evidence of Home Office officials published with Procedural Rights in Criminal Proceedings at page 61. Back

24 Government Explanatory Memorandum, paragraph 13. Back

25 Evidence of Home Office officials, page 61. Back

26 For example Document 10880/05 DROIPEN 34 of 11 July 2005, Document 14248/05 DROIPEN 54 CATS 73 of 11 October 2005 and Document 15432/05 DROIPEN 61 of 6 December 2005. Back

27 Article 34(2) TEU. Back

28 The references to national law are criticised by some Member States as introducing further confusion as to how rights should be interpreted and increasing the likelihood of inconsistency. Back

29 Proposal for a Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, COM (2004) 328 of 28.04.2004, pages 2 and 3. Back

30 Recital 12 on the right to legal assistance and Recital 13 on the right to linguistic assistance. Back

31 Recital 12. Back

32 For this reason they have lodged a scrutiny reservation to Article 3 of the draft Framework Decision-Q 34. Back

33 Letter of 15 November 2006 from Lord Goldsmith to Lord Grenfell, printed with this Report, and Q 17. Back