Examination of Witnesses (Questions 1-19)
LORD GOLDSMITH
QC, MR MARK
DE PULFORD,
MS MELISSA
BULLEN AND
MS CLAIRE
FIELDER
25 OCTOBER 2006
Q1Chairman: Lord Goldsmith, we are extremely
grateful to you and your officials for coming to help us. If occasionally
I stray into calling you Mr Attorney you will forgive me, but
I think Lord Goldsmith is your proper designation as you appear
before the Committee. You have, I know, had an opportunity to
look at the areas of questioning, the draft questions which we
have prepared for you, and if I could just tell you that for the
first time today we have decided we will circulate the questions
amongst any interested members of the public so that they may
more easily follow what is going on. I do not know whether any
of you wanted to make any preliminary prepared statement or anything
of that nature, or whether you are content that we should move
straight into the area of questioning we have set out?
Lord Goldsmith: I am happy to deal with it in
any way which suits the Committee, but it might be helpful if
I just take a couple of moments just to say what the up to date
state of play is, because of course it has changed from the communication
from me in July. You have now got the latest Explanatory Memorandum
of 19 October, which describes those developments, and I wonder
whether it is helpful if I just summarise that.
Q2 Chairman: We have your July letter,
of course. We understand there is a new Finnish Presidency text
of 27 September, which we have not got, although we have got the
Council of Europe's comments on it, rather oddly. This has all
happened in the last very few days, because that was initially
a `limite' text.
Lord Goldsmith: We have got further copies,
because we thought there might be a risk that you did not have
this. Could I just distribute those and I will, if I may, just
take a moment—
Q3 Chairman: Yes. We shall probably
be taking, therefore, a necessarily broader brush approach to
the problem as a whole, but certainly.
Lord Goldsmith: Yes. If we can distribute this.
It was sent on the 19th. In any event, I hope it does not create
a great deal of inconvenience, because my understanding of your
questions is that they are at a slightly higher level than the
detail of the text as it stands, but I am happy to deal with that.
The history of this, of course, is that it did not prove possible
for Member States to agree on the original Commission draft instrument
by the Hague Programme deadline of the end of 2005 and there was
a series of reasons for that—differences over legal base,
over proportionality, concerns about the relationship between
the proposed instrument and the ECHR, over exceptions relating
to terrorism and serious crime, and so on. In April this year
a number of Member States, including the United Kingdom, proposed
an alternative route, the adoption of a non-binding Resolution,
which would not of itself rule out the adoption of a binding document
sometime in the future, but the aim of that was to encourage Member
States to promote full compliance with Articles 5 and 6 of the
ECHR as developed through Strasbourg jurisprudence by signing
up to action points relevant to their national circumstances.
We view that more as a way forward based on practical measures,
but at the time that happened the Austrian Presidency proposed
a further text for a proposed binding Framework Decision, which
they regarded as a compromise.
Q4 Chairman: This is the text we
got in July and it is a much attenuated text, six articles only.
Lord Goldsmith: Exactly, the thinking being
that if they were more general and more vague, that would be easier
to agree. It has the consequence, as far as we are concerned,
of creating further difficulties of uncertainty. At the JHA council
meeting of Ministers in June, which I attended, we agreed that
discussion should proceed in parallel on both those informal texts
to see whether either of them, or both of them, might command
consensus. They have been considered at Working Group meetings
in July, September and October. It was at the September meeting
of the Working Group that the Council of Europe was invited to
submit written comments and to meet members of the Working Group,
and it did that on 19 and 20 October, so it is very up to date.
What the Council of Europe said at the meeting—and I am
pleased you have seen its paper—was to warn about the risks
of introducing (I understand these were the words used at that
meeting) "another layer, another player". The Council
advised that the draft binding text required further modification
to ensure legal clarity and avoid problems. I understand that
the Council of Europe representatives stated the text could be
made clearer and much more compatible with the Convention, and
they proposed two concrete amendments to start that process, but
they also agreed that it would not be possible to eliminate the
risks which were introduced by having "another layer, another
player," a risk of increased litigation, legal conflict,
uncertainty and ultimately damage to human rights. Where we are
now, as I understand, is that there is a number of Member States
which are strongly in favour of having a binding Framework Decision
along the lines of the current text. There are certainly several
other States which believe that a non-binding measure with practical
measures, as proposed in the draft Resolution, would be more realistic,
more likely to be accepted and be of real benefit. We are in that
latter camp. The only final observation I think I would make before
answering such questions as I can is that when this Committee
reported on this in February you called for something which was
truly something worthwhile. I am afraid to say the document as
it stands, as a draft Framework Decision, is not, in our view,
that at all. That is a thumbnail sketch, as it were, of the history
which gets us to today.
Q5 Chairman: Yes. As you say, the
Committee (under my predecessor as the Chairman, Lord Scott) reported,
but that was in February last year, 2005, not this year.
Lord Goldsmith: Yes, forgive me.
Q6 Chairman: Following a late 2004
inquiry, and of course before the end of 2005, by when, under
the Hague Programme, this Framework Decision was to have been
adopted.
Lord Goldsmith: Yes.
Q7Chairman: As you know, and as the questions
record, the Home Office evidence before the Sub-Committee two
years ago now was broadly in favour of the Framework Decision.
It was thought that there needed to be some tinkering with it,
but essentially it was thought to be desirable and the Government
was supportive. But one has, perhaps, the impression as time has
passed, perhaps not least since the 7 July bombings of last year,
that the Government has shifted and now—and I think your
letter in July makes this plain—prefers a political declaration
and possibly some funded schemes to improve human rights observation
but without there being any sort of Framework Decision of this
character. Is that fair?
Lord Goldsmith: I think it is fair to say that
there has been a shift or an evolution development of our view,
but it has rather gone alongside the development in the proposition
itself. It is quite right that the Government was open and positive
initially and the Government saw attractions in measures which
could actually enhance the application of the ECHR, and indeed
there seemed to be possibilities for raising standards. For example,
the issue of taping of interviews at police stations, which was
one of the things which the early draft was looking at. I understand
also that the Commission at the time indicated that it would be
very careful to avoid duplication with the ECHR, which is something
the Government has been concerned about in a number of areas,
for example the EU Charter, over a period of time. So we were
positive and open to the idea of something which would enhance
compliance with the ECHR and not simply just create "another
layer, another player," but the final stance has always been
conditional upon the final text. The text, if anything, has got
more general and it has got more vague. The risks of a clash with
the ECHR seem to be quite significant. We cannot see, at the moment,
that the current draft really offers any clear benefits to the
citizen, and then it poses legal difficulties alongside it. So,
as I say in my Explanatory Memorandum, our 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, and 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, which is why we have supported that particular
alternative approach.
Q8 Chairman: The practical benefits—you
have of course mentioned one, the taping of police interviews,
ideally by video as well, and I think the funding of interpreters
is possibly another scheme which is being considered?
Lord Goldsmith: Yes.
Q9 Chairman: But there is, as I understand
it, a group of Member States which still in principle would like
a Framework Decision, something more directly applicable than
a bare political declaration. Can you give us any idea as to what
number of States take one view and what number another view? Please
feel free to answer yourself or through your officials, entirely
as your group would like.
Lord Goldsmith: I just wanted to check the number.
Not all Member States have revealed their position, which is not
entirely unusual. We think there may be a number who simply have
not reached a final decision. Maybe nine or 10 are currently in
favour of a binding measure, something of that order.
Q10 Chairman: So would it be roughly
the same number opposed, the same number in favour?
Lord Goldsmith: I think, from those who have
made it clear that they have got substantial reservations, rather
fewer, perhaps half a dozen, have made it clear they have got
substantial reservations.
Q11 Chairman: That includes the UK?
Lord Goldsmith: That includes the UK, but that
obviously leaves a number who are either undecided or undeclared.
Q12 Lord Lucas: Could you tell us
more about the advantages those in favour see in having this framework?
How do they view things?
Lord Goldsmith: I may not be the best person
to say how they see them. A point which was made strongly to me
in the meetings I have had is that the EU has taken a number of
measures, particularly following 9/11, which appear to be strongly
in favour of security, policing, and so forth, arrest warrants,
evidence warrants, et cetera, and that there is a political desire
to balance what appears to be a bearing down on people with some
statement that the EU still regards as important defendants' rights.
That is a point which has been put to me. I hope I do the point
justice in the way in which I have described it. If you ask the
question, what is the actual tangible benefit, what does this
add in terms of protection, I cannot say that I have had an answer
which at the moment convinces me. As I have said, there are—and
I can give examples if the Committee would find it helpful—some
problems of legal confusion which I think the current text gives
rise to.
Q13 Lord Mance: On the same subject,
I can understand, reading the text, why you say it is general
and vague. The risk of a clash with the ECHR is a point I would
like to ask about. Clearly, it would not be inconsistent with
the ECHR if it went further in protecting suspects or accused,
so do I understand that the concern is that some of the qualifications
might be taken to suggest a less protective regime?
Lord Goldsmith: I think it is a double problem.
One is the uncertainty as to whether it is supposed to go further
or not. The second—and it is one which one cannot get away
from, it seems to me—is that as soon as you put into a legally
binding text obligations on Member States which cover the same
ground as the ECHR you have then created a system where you have
two courts which can then adjudicate upon what is the meaning
of those. If they have different wording, then the risk of them
reaching different conclusions is great. There are, of course,
examples where the ECJ and ECHR have reached different conclusions
on the meaning of the ECHR itself, so there is some legal uncertainty
there, a legal risk there, which the Council of Europe refers
to in its paper. If I could just give an example. There are several
but, for example, Article 1 seeks to define the scope of the Decision.
Q14 Chairman: You have passed us
up the Explanatory Memorandum, but you are talking in terms of
the Finnish Presidency text, are you?
Lord Goldsmith: Yes, I am. If it would be helpful,
I am very happy to send you a note after this hearing which makes
these textual points and it may be easier to assimilate them with
the documents.
Q15 Chairman: That would indeed be
helpful and perhaps I should have said, as I ordinarily do at
the beginning, that, as you know, this is recorded and you will
get a copy of the transcript and have an opportunity to correct
or expand where it would be helpful to do that. You are perfectly
right that there are Member States, and indeed I think we were
one, who originally thought that here we are talking about the
area of freedom, security and justice, and security in recent
years, for understandable reasons, has attracted all the emphasis
and, as I think the Committee put it in its report 18 months ago,
"Justice is destined to be of secondary importance to security
for at least the next five years." There are States which
think this sort of Framework Decision could counter that. That
is the background to the other view, I think.
Lord Goldsmith: Yes.
Q16 Chairman: To what extent (if
at all) did 7/7 last year affect the UK Government's approach
to this?
Lord Goldsmith: Not at all, I do not believe.
I would not want it to be thought for a moment that the UK does
not also take the view that defendants' rights are important,
it is just that we believe the way to enhance those is through
a clearer recognition of the ECHR, which provides more than adequate
guarantees in those areas, and by adding practical measures which
may help to make some of those reality, such as the issues of
interpreting in countries where some interpreting facilities may
be difficult to get.
Q17 Chairman: Yes, of course. I think
one can really understand the fears of overlap and uncertainty
with ECHR, but Articles 5 and 6, which are very much behind this
initiative, are in very general terms and I believe the thinking
is that they can usefully be fleshed out, crystallised, and there
can be more specific obligations, particularly minimum obligations,
spelled out in a way which would help, particularly in some States,
to give confidence that across the Union as a whole there will
be true compliance with these important Articles.
Lord Goldsmith: Of course, now the detail of
Articles 5 and 6 is considerably provided by the jurisprudence
of Strasbourg over now many years and I do not think, when one
looks at the text as it stands at the moment, one could actually
claim for it that it actually provides greater clarity as to what
those provisions provide. On the contrary, it creates uncertainty
because it now puts them in different terms which makes one wonder,
when it talks about the right to free legal assistance, is this
the same as we now well understand the ECHR obligation is, or
is it something greater, or indeed lesser? It is that sort of
uncertainty.
Q18 Lord Grabiner: Could you spell
out, certainly for me if not for anybody else, what are the practical
consequences of a continuing failure amongst the states to reach
a unanimous agreement?
Lord Goldsmith: As this is an area for unanimity,
we will not have an agreed Framework Decision.
Q19 Lord Grabiner: What is the practical
consequence of that?
Lord Goldsmith: We will not have succeeded in
achieving something which we set out under the Hague Programme
to do, but I think apart from that it is political rather than
anything else. I do not think there is any other consequence.
|
