Examination of Witnesses (Questions 20-39)
LORD GOLDSMITH
QC, MR MARK
DE PULFORD,
MS MELISSA
BULLEN AND
MS CLAIRE
FIELDER
25 OCTOBER 2006
Q20 Lord Grabiner: In terms of the
position of individuals or members of the community, so to speak?
Lord Goldsmith: In that sense, I would say no,
certainly not. The rights for those charged with offences will
be provided in every single EU country by the rights which are
guaranteed under the ECHR, or maybe higher in the case of individual
nation States.
Q21 Lord Grabiner: Yes. So it is
not the end of the world?
Lord Goldsmith: No, it is not.
Q22 Lord Neill of Bladen: On the
practicalities, we have had a communication from the Council of
Europe people and one of the things which struck me very much
in their paper (in paragraph 15, for the record) is that they
say that in their casework they found that 65 per cent of the
violations of the basic provisions (I think we are talking about
Articles 5 and 6) are what they call repetitive cases; in other
words, there are already clear precedents covering the point and
what is happening is it is either ignorance or unwillingness to
comply with the laws as laid down. So we have already got a situation
with the Convention, which Lord Grabiner's question brings to
light, that everybody is bound by the Convention, but what is
happening is that people are not complying with it. That is what
is happening. Do you agree with that?
Lord Goldsmith: Yes. I think that is a very
important point.
Q23 Chairman: I would not be surprised
if quite a proportion of that 65 per cent is delayed hearings.
There are one or two known recalcitrant Member States who take
an unconscionable time to complete their litigation, particularly
criminal cases.
Lord Goldsmith: That is true, and I am sure
that is a part of the repeat violations. I would not think it
accounts for all of it, by any means. I note, if I may, following
on Lord Neill's reference to paragraph 15, what the Council of
Europe go on to say in paragraph 16 is that what is required in
this respect are practical measures to improve compliance with
the existing ECHR standards. If I were to put what I see is the
United Kingdom's position at the moment, it is that we want to
see practical measures, we want a clear statement that we do care
about defendants' rights and that is what the declaration of commitment
to the ECHR is intended to do without duplicating standards which
already exist.
Q24 Lord Lucas: What particular measures
are you thinking of so far as this country is concerned? I am
aware that interpretation is not yet as perfect as it might be
(putting it gently) and perhaps there are other areas, too, where
you think we could, following your preferred route, move in the
direction of this proposed framework?
Lord Goldsmith: I do not think I can say that
I have in mind, sitting here, particular measures for the United
Kingdom. I do not want to sound arrogant in saying that, but rather
what we have been looking at are for everybody practical measures
which are set out in the draft resolution. So we want to propose
that people should create an action plan looking at the good practice
which exists, and the good practice which exists as a result of
Strasbourg case law includes, for example, having at police stations
lists of lawyers who are able to provide initial advice speedily
to suspects, being able to assess the mental health of suspects,
ensuring early legal input to the prosecution process, using modern
technology to access or to facilitate access to a lawyer and issues
in relation to interpreting. We have, for example, proposed that
it could be helpful if the Commission was able to apply some of
the money which is available (there is quite a bit available for
JHA purposes) to assisting in developing training for interpreters
so that the quality and availability of interpreters in different
languages was more accessible throughout other Member States.
These are the sorts of areas. We have said very much to our colleagues
in the other Member States that we are very happy to discuss with
them what other practical measures they may think may be helpful,
but our emphasis has been on those, as the Committee well understands,
rather than on simply trying to set out legal texts which cover
the same ground as the ECHR.
Q25 Chairman: We are by no means
following the prescribed route of questions, but none the worse
for that. Really we are now in the heart of the group of questions
under the head "Practical measures" on the second page,
towards the foot, if you have that. The second paragraph of that
notes that most Member States opposed the inclusion of provisions
on the recording of police interviews in the original Framework
Decision on the basis of cost. As I say, we do not have, alas,
the latest text of the Finnish Presidency Decision, but does that
include the recording of police interviews?
Lord Goldsmith: No.
Q26 Chairman: You have just answered
to Lord Lucas what specific projects are being discussed, as I
apprehend. Was that what you were telling us, the variety of initiatives
which have been taken?
Lord Goldsmith: Yes.
Q27 Chairman: But has anything actually
happened, or is it just discussion at this stage?
Lord Goldsmith: This is discussion in the context
of, as it were, the alternative Resolution route, the one which
we propose. The draft binding Framework Decision deals simply
with these areas with the right to information, right to legal
assistance, right to legal assistance free of charge, interpreting
and translating. It does not cover the recording of interviews
at police stations or anything of that sort.
Q28 Chairman: Does it seem as if
we are not actually going to get beyond the discussion of these
particular initiatives, particular funding arrangements, and so
forth, unless and until the Framework Decision is buried?
Lord Goldsmith: We hope not, because it seemed
to us that it is possible for both tracts to continue alongside
each other. That is why, at the June Council meeting, I particularly
argued (and it was agreed by the Council) that the Working Group
should be looking at both. We have always said that having an
alternative route does not rule out having a binding Framework
Decision, or certainly does not rule it out for all time. I do
not think it needs to be that way. Why other colleagues may find
it difficult to commit to an alternative approach whilst they
hope that the Framework Decision is still alive is, I think, a
matter for them.
Q29 Chairman: But here we are a year
on from the non-implementation of the Hague Programme in terms
of adopting this Framework Decision and we still have not actually
got anything on the ground in terms even of these alternative
measures, such as helping with interpretation, the recording of
police interviews, and so forth.
Lord Goldsmith: That is right.
Q30 Chairman: Has anybody actually
come up with concrete proposals for funding? You say there is
money in the JHA budget?
Lord Goldsmith: Yes, there is a fair bit of
money which the JHA budget has got which could be used for this.
We have been pressing this route, and pressing hard, for it to
be discussed within the Working Group and for those in the Working
Group to come up with concrete proposals which could be implemented.
The Commission is well aware of this. I have spoken to the Commissioner
about it.
Q31 Chairman: Our questioning has
rather been affected by the fact that we did not have, until just
this very moment, the new text put before us and we have been
working, therefore, on an out of date text, but I think we probably
have now covered the first page of the proposed area of questioning.
Question five, I think you have addressed, whether there is a
case for setting out in more detail all the rights afforded. What
you say, as I understand it, is not really, because now Article
6 has been the subject of a good deal of Strasbourg jurisprudence
and people know where they stand and there is a problem, if you
set it out in more detail, that it will not accurately reflect
what Strasbourg has decided and there will be, so to speak, rival
formulations of what the necessary standards are and then two
different courts to resolve the differences. Is that essentially
what you say?
Lord Goldsmith: Yes. I think I would just qualify
it in this way: always this must be a question of balancing up
the advantages and the disadvantages and 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, and one would want to see how much
of that risk one could reduce, but at the moment our concern is
that we do not really have much practical benefit from the Framework
Decision as it stands but we do have a lot of problems from it.
Q32 Chairman: What really has changed
from the evidence you gave to the Committee two years ago? Are
these problems which have somehow just come to light, or from
further thinking, or what?
Lord Goldsmith: I think it has developed as
a result of the text developing, so things like recordings in
police stations, which we believe was a good thing to promote,
those have disappeared from the agenda. So there are not those
advantages and the concerns which we have about the text conflicting
with the ECHR, the Commission has said that it will see that that
does not happen, but we do not think we have got to that stage.
So we have rather lost the benefit and have not solved the problems.
So we move towards the idea of saying, let us see if we can achieve
the objective of enhancing compliance through a different route.
Q33 Chairman: I think the Council
of Europe's commentary on this latest proposal was not entirely
hostile. True, it thought it was obviously necessary to make sure
there were no inconsistencies, conflicts, and that that should
be spelled out with some precision, but on the whole is it not
right that they generally speaking support the notion of giving
flesh to these important rights?
Lord Goldsmith: I confess, that is not how I
read it. For example, paragraph 15, to which Lord Neill drew attention,
seems to be making a different point, and paragraph 7, where they
express concerns about having conflicting judgments. It is absolutely
right—and one would expect them to approach this with great
tact—that they talk about the need to avoid the conflict.
My understanding of where they had got to in the Working Group
meeting was, as I summarised it before, that they did see ways
in which there could be a greater concordance between the two
but were concerned that that would still leave some risk. I think
there is an additional concern that the more room is left for
hesitation as to compliance of a domestic measure with the Convention,
the greater the likelihood of seeing the person concerned file
an application to the Strasbourg court. That is paragraph 27 of
their paper. They already have, as that paragraph makes clear,
a degree of litigation which comes from the way in which Member
States within the Union are complying with ECHR law. So I do not
read the paper as a whole as really being supportive of the approach.
They are supportive, in paragraph 16, of practical measures.
Q34 Chairman: Yes. They would welcome,
I think, anything which actually enhanced the basic standards
set by Articles 5 and 6. I apprehend in the fresh text, which
we have just now got, there is a possibility that some might.
I am just looking at Article 3, the right to legal assistance,
footnote 1 to which notes that the UK lodged a reservation on
this Article as it might go beyond the ECHR. What is wrong with
going beyond the ECHR?
Lord Goldsmith: First of all, one needs to be
clear whether one is going beyond the ECHR, and the recital to
this, under Recital 12, actually says in terms that this article
is intended not to go beyond the ECHR. So it is not, in drafting
terms, terribly satisfactory when something in its substantive
form looks as if it might go beyond it but the intention is that
it should not. These are things which it may be possible to sort
out through further drafting, but this is one of the instances
where one is not clear just what Article 3(1) is supposed to mean.
"Member States shall take the necessary measures to ensure
that every person charged with a criminal offence has the right
to legal assistance of his or her own choosing." There is
an issue as to what is meant by "criminal offence".
Article 1 defines "criminal offence" by reference both
to ECHR and to national provisions, and those who have dealt with
this bit of the jurisprudence know very well that there is an
autonomous meaning for criminal proceedings. Does this include
courts martial, does it include administrative proceedings or
not? It is not terribly satisfactory when that degree of uncertainty
is left.
Q35 Chairman: Can we then move finally
to the Hague Programme generally, because I think this is not
the only initiative under Hague which is currently, so to speak,
falling behind the planned Programme. Is that right? There is
a number in this area of Justice and Home Affairs. If we just
look at the last page of the draft questions with regard to conflicts
of jurisdiction, the double jeopardy principle, the presumption
of innocence, and possibly with regard to the supply of evidence.
Lord Goldsmith: Yes. I think it is right to
say, if I may, about the Hague Programme that we do remain committed
to the Hague Programme, but it is right to note that when it was
agreed the assumption was that the Constitutional Treaty would
be ratified within a year or two. That would have had some important
provisions about how one goes about agreeing legislation in the
JHA field. So the absence of the Treaty has rather changed the
context of the agenda.
Q36 Chairman: It would have made
decision-making easier. It would have meant there was no longer
a requirement for unanimity?
Lord Goldsmith: Subject to the special provisions
which were proposed in the Constitutional Treaty, yes, that is
one issue. The Treaty is under reflection.
Q37 Chairman: So decision-making
has undoubtedly become more difficult?
Lord Goldsmith: Yes.
Q38 Chairman: Has Government enthusiasm
waned on that account for some of the proposals?
Lord Goldsmith: Certainly from our point of
view it is much more a question of not so much the concept but
getting the content right. Getting the content right is what is
very important and agreeing with the Programme, which we have
done, does not necessarily mean that we must agree with the detail
of all the proposals which come forward from the Commission and
during each Presidency. So I would not say that the enthusiasm
has waned, but it is more difficult and the absence of the Treaty
has changed the context in which the JHA agenda is to be run.
I think there is one additional feature, which was strongly stated
by a number of Member States at the last but one JHA Council meeting,
which was really a request to the Commission for us and for the
Commission and the Council 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. I think
that is quite an important point.
Q39 Chairman: So your answer to question
11 is that the Government remains committed?
Lord Goldsmith: Yes.
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