Examination of Witnesses (Questions 40-56)
LORD GOLDSMITH
QC, MR MARK
DE PULFORD,
MS MELISSA
BULLEN AND
MS CLAIRE
FIELDER
25 OCTOBER 2006
Q40 Chairman: But in answer to question
12, as I understand it, you are saying there is likely to be a
revised programme to focus on fewer but perhaps more promising
proposals, is that right?
Lord Goldsmith: Some re-prioritisation of JHA
priorities may well be appropriate and we anticipate that the
Presidency will present the December Council's Conclusions by
reflecting an assessment of the progress made in implementing
the Hague Programme to date and what the priorities may be for
the future.
Q41 Lord Neill of Bladen: Could I
go back to the Framework Decision, the paragraph to which you
drew attention, paragraph seven. I mentioned paragraph 15 and
you drew attention to paragraph seven. This is the Council of
Europe document.
Lord Goldsmith: Amongst others, yes.
Q42 Lord Neill of Bladen: I have
gone away from The Hague, I have gone back. They flag up for us
in paragraph seven the risk of jeopardising legal certainty and
one of the things they take us into is this Bosphorus line
of jurisprudence. If you were to assume that there was to be a
Framework Decision covering the ground but the language was not
identical to what we have in the ECHR you could have this situation,
could you not? You could have an appeal arising out of a particular
criminal case and that would be referred either by the court of
first instance or an appellate court to Luxembourg for a ruling.
Under the Bosphorus doctrine they give their ruling. It
comes back to the national court, it is binding on the national
court, which then reaches a conclusion on the particular criminal
case, but it would then be open to the accused (or maybe the prosecution
would want to, but thinking of it really from the point of view
of the accused) for there to be now a new route. You would then
go up to Strasbourg on what has been decided under the first route
and the Strasbourg court is asked to rule that the upshot of all
that is inconsistent with the ECHR rights of the accused. We are
talking about a real person. We are talking about somebody in
prison on possibly a very, very grave charge, and this has gone
up to Luxembourg. I do not know how fast they are on crime. On
civil, when I last enquired, it was about two and a quarter years.
But assume it is expedited. You go back into court and you go
to Strasbourg and your legal uncertainties, and it seems to me
you multiply the uncertainties and the difficulties simply by
the very fact of having two texts which are not identical. It
is your point that I am just putting. This is one of the objections
to going down the route of having a Framework Decision.
Lord Goldsmith: Yes. The answer to your question
in principle is, yes. It would not, I do not think, apply to us
because of the particular arrangements which we have within this
Pillar, the Third Pillar, that we do not allow references to the
court in Luxembourg on that, but through—
Q43 Lord Neill of Bladen: Other Member
States do?
Lord Goldsmith: Yes.
Q44 Chairman: Now it has been pointed
out—perhaps you had already perceived it—do you regard
this as a decisive factor against such a Framework Decision coming
into force? If so, it is rather a pity that so much time and effort
has been devoted to it over the last couple of years.
Lord Goldsmith: No, I do not, and that is why
I said before, in qualifying a proposition which was being put
to me, that at the end of the day it is a question of balance.
One has to look at what the practical advantages to the Member
States and the citizens will be of a particular proposal and judge
that against the disadvantages and how much one can reduce them.
I do not say, and I do not think we have taken the view, that
the fact that one could have two decisions in this area means
that this is simply not a viable proposition at all, but I come
back to the point that our level of concern is that there are
not practical benefits from the present proposed text which outweigh
the legal uncertainty and legal risks to which it gives rise.
Q45 Chairman: One particular question
raises the issue of Bulgaria and Romania, who of course are due
to accede to the Union, I think, on 1 January. I do not know whether
that is a relevant dimension from the point of view of assessing
the desirability of this sort of Framework Decision, whether it
is thought it might add value in the case of the accession of
relatively unenlightened countries. I hope I do not speak out
of turn.
Lord Goldsmith: I do not think so, no. I do
not think that would be beneficial, particularly where you end
up with something which really is not intended to go beyond what
the ECHR already provides. On the other hand, practical measures
and a renewed statement of commitment to the ECHR could help all
countries. I would not want to single out those two countries,
but it could help all countries.
Q46 Lord Mance: I just want to ask
you about a rather general point. I have already expressed a certain
amount of perhaps disappointment, consistent with what you said
about the rather vague and general level of the present proposal.
If one were thinking of real practical benefits, would it be right
to say that this is likely to be a very long-term and slow exercise?
I would have thought the sort of thing which people would think
about in the European context, if they were hoping to achieve
real protection for their citizens, is that tape recording is
one good idea, PACE guarantees of every nature are certainly not
present in every country, rights to bail and provisions regarding
security, the extent to which you can be kept in custody, the
length of time taken in proceedings, and then of course all sorts
of evidential points, but all this must be probably very long-term,
must it not?
Lord Goldsmith: And not really to be found in
the draft Framework Decision. You can do quite a lot in terms
of practical measures in relation to those areas. I mentioned
the funds which the JHA has got available. I think for the Criminal
Justice Programme there are something like €190-odd million
available over the next seven years. So there is a fair bit of
money which could be applied in a practical way to deal with some
of the logistical problems which maybe some countries have got
in terms of interpreters, or translation, or whatever else it
may be.
Q47 Chairman: Lord Goldsmith, could
you just help on this: if a political Resolution and practical
measures do come to be agreed in the Council, is it envisaged
that negotiations on the Framework Decision will nevertheless
continue with a view to eventual agreement?
Lord Goldsmith: I think that will be for the
Member States to decide at that time. They will need, no doubt,
to make an assessment and the Commission will need to make an
assessment as to how productive it is likely to be at that stage.
Each of these things takes time, the application of officials
and Ministers to these proposals, and it may be that the decision
will be that it is not worthwhile because the opposition is sufficiently
strong at least to deal with it at that stage, but I cannot say.
It will be for the Member States to decide then.
Q48 Chairman: The present division
between these groups of Member States—those who still want
a Framework Decision and those, including the United Kingdom,
who at present think there is a better way forward by political
Resolution and practical measures—does that conflict mean
that actually neither might come to pass within the foreseeable
future?
Lord Goldsmith: I hope not, but it is an area
for unanimity and I cannot therefore rule out that whilst some
Member States, for example, might hope for a binding decision
they will not be prepared to sign off on anything else. But I
do not know. That will be for them to decide.
Q49 Chairman: Just summing up, the
difference in view really between the broad support the UK Government
was giving to this proposal two years ago when giving evidence
to the Committee under Lord Scott's chairmanship and today, you
say, is in part because the failure of the Constitutional Treaty
has meant that decision-making is more difficult now that unanimity
continues to be required?
Lord Goldsmith: No, I was not putting the Constitutional
Treaty as any reason for the present position we take in relation
to the draft Framework Decision, I was saying that whilst we were
hoping to see positive benefit from it, some of the things which
could have provided that, such as a provision in relation to the
recording of interviews, have disappeared from the agenda because
it is not acceptable to a number of Member States. So we have
seen less practical benefit. We have not seen that clear avoidance
of conflict between the ECHR and the Framework Decision which
we were hoping for and at the end of the day we see the present
text as not really offering great practical benefit whilst bringing
with it legal uncertainty and risk to Member States and to citizens.
So we prefer an alternative route which would enhance defendants'
rights, compliance with ECHR, and provide practical measures to
achieve that.
Q50 Chairman: Are you aware of any
plans by other Member States to proceed with the Framework Decision,
obviously excluding those who remain opposed, under the Enhanced
Cooperation provisions?
Lord Goldsmith: Is the question directed at
whether future presidencies will want to take it up as strongly,
or do I misunderstand the question?
Q51 Chairman: As I understand it,
under the Enhanced Cooperation provisions, which is in the Treaty
of the European Union, you can have a group proceeding with the
Framework Decision but obviously excluding those Member States
who remain opposed.
Lord Goldsmith: I do understand. Nobody has
formally suggested that and it is not easy to see how it would
work in the field of mutual cooperation.
Q52 Chairman: Just to clarify the
matter, is the recording of interviews making use of EU money
within the list of practical measures?
Lord Goldsmith: It is not as it stands at the
moment, but it certainly is something which could be considered.
Q53 Chairman: In the document we
have just got I am referred to paragraph 1.1.1, Proposed Action
Points to Promote Fairness in Criminal Proceedings. It is not
there. Why is that?
Lord Goldsmith: This is in the draft Resolution
and this is intended as an illustrative list of the sorts of things
which could be dealt with, but we have made it clear, both formally
in Council meetings and informally in discussions which officials
have held and which I have held, that we encouraged other Member
States to put forward areas for practical measures, practical
assistance that they think would help and if somebody was to put
that forward, saying, "We can see there is a way of assisting
in relation to recording which would overcome the difficulties
which they have," we would be very happy to consider that.
Q54 Chairman: But are we going to
put it forward? If this was, as you say, one of the reasons why
we were less enthusiastic as the negotiations developed because
that was eliminated from the original decision, why have we not
put this forward ourselves?
Lord Goldsmith: I think the reason we have not
put it forward is because the things which are there we thought
were practicable, would have an appeal to a number of Member States
and would provide a practical benefit. I am not absolutely sure
what this would be proposing in terms of recording. To say that
it is good practice to do it, I think we would have no difficulty
with that, although we know that a number of Member States do
not and would have difficulty doing it because of the cost, but
I am very happy that we should put that forward.
Q55 Chairman: Unless anybody else
has any further questions for you, we have taken up already an
hour of your time. We know what a busy schedule you have and we
are most grateful to you for coming. Thank you very much for assisting
us.
Lord Goldsmith: Thank you very much. Could I
just make one point? Because of the fact that you did not have
the right papers, and I am very sorry about that, I will write
with some detailed points, but we have handed up to you a text
which I deduce from the question you asked me, my Lord Chairman,
has got footnotes on it. You would not normally get that and I
am going to ask, if I may, whether you might be prepared to give
back those copies and we will provide copies without the footnotes.
Lord Grabiner will take that point, I know.
Q56 Lord Grabiner: I have scribbled
on the document.
Lord Goldsmith: We will take them back, not
read them, and we will destroy them.
Chairman: I think if we are to secure
your future cooperation you had better have ours now! Thank you
very much.
25 OCTOBER 2006
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