Examination of Witnesses (Questions 20-39)
Mr Geoffrey Hoon MP, Mr Peter Storr and Ms Shan Morgan
1 NOVEMBER 2006
Q20 Chairman: 50/50 for what? Coming
back for discussion fresh in December?
Mr Hoon: Just having a discussion. 50/50 on
the basis that it might come back for further consideration.
Q21 Chairman: Disinterred for further
discussion?
Mr Hoon: Yes, but I would not put it any higher
than that. In fact, I might put it a bit lower at the moment.
Q22 Lord Lester of Herne Hill: This
may seem the very opposite of what I was asking before but I wonder
whether you agree. I think this is what you are saying: that it
is particularly important, given that our common law systems are
in a small minority within the European Union—I think only
four countries, us, Ireland, Cyprus and Malta, have common law
systems—not to be in a position where civil law systems,
inquisitorial systems, which have their own merits, are simply
imposed as some kind of harmonising. On the other hand, there
are virtues, as I understand it. We can get the highest common
factor of good law and practice by easing the process of doing
that. Is that really the sort of consideration you have in mind?
Mr Hoon: I think the noble Lord has put that
rather more eloquently than I have, but yes.
Q23 Lord Mance: Is there a countervailing
factor? We have had recently a very large number of harmonising
proposals or moves under Title IV. I would like to enquire whether
you think that if one did bring Title VI into Title IV through
the passerelle the consequence would be that there
would be much greater focus in the Commission on that area because,
as you say, at the moment the proposals coming forward in the
Title VI area seem to be to some extent the lowest common denominator.
I just wondered, if it was viewed as a majority voting area, whether
there would not be a considerable increase in the number of proposals
in it.
Mr Hoon: I said yes a moment ago to the question
from Lord Lester but the truth is—and I think this question
highlights it—that it is not actually possible to present
quite the neat distinction between a common law criminal process
and external rules to provide greater protection against international
terrorism, just to use that as an illustration. In a sense, the
Title IV points on things like asylum, immigration and judicial
cooperation do show the difficulties of the neat distinction that
we were perhaps drawing because trying to ensure that we have
an effective system of appeal on asylum and immigration, for example,
is part of what I might describe as our legal process. At the
same time, I can clearly intellectually see the arguments for
having an early statement of European law from the ECJ. The two
sit uncomfortably on both sides of the argument. I cannot draw
intellectually quite the neat distinction that I would like to.
Q24 Chairman: I had not appreciated
we had passed to the consideration of the jurisdiction of the
European Court of Justice.
Mr Hoon: We have not but I thought that was
the point that was being made.
Q25 Lord Mance: The point I was making
was perhaps a slightly different one. The letter which we have
been given from the Minister of 4 October from Baroness Scotland
to Jimmy Hood suggests that the EU should be looking less at legislation
or harmonisation and rather at practical measures to encourage
mutual confidence. I wondered whether it was thought that there
might be a problem about easing the process by use of the passerelle
and transferring more matters into the majority voting regime,
the problem being that in fact you would encourage considerably
greater moves towards harmonisation in a wider area. We already
see some moves towards harmonisation under Title IV, the area
which is already one of majority voting, where at least on two
occasions recently this country has not opted in. Criminal and
other matters under Title VI are likely to be even more sensitive.
Mr Hoon: I think I did understand the question.
Maybe I did not answer it in quite the right way. Obviously there
is a risk with greater use of qualified majority voting and the
passerelle that more and more could be pulled across. I
accept at the boundaries of that pulling across there would be
a risk to our common law system that I would not consider it appropriate
to take. Given in the broader sense the thrust of a lot of what
we are trying to achieve now in the European Union flows in the
opposite direction, we are trying to find ways in which to reduce
the level of harmonisation unless it can clearly be justified
for single market reasons. The whole argument about deregulation
and allowing national processes to prevail where they are providing
the right standard and quality of decision making seems to me
to run counter to an approach that says, "We are going to
harmonise everything for the sake of it." The mood is a much
more pragmatic one not only in the United Kingdom but across the
European Union. It is not particularly relevant to your current
inquiry but have a look at the mass of proposals from Commissioner
Verheugen on deregulation. It is a very fundamental shift in the
Commission's approach.
Q26 Chairman: Amongst your concerns
about greater use of the First Pillar and the use of the passerelle
to get there are that it puts at risk our insistence on the principle
of subsidiarity being honoured?
Mr Hoon: There is certainly a concern about
that. For our theoretical discussion about the use of the Article
42 passerelle, even if I conceive of the circumstances
in which it might become relevant, as far as the UK is concerned
we would be quite restrictive in our approach. The opting in arrangements
allow us to do that.
Q27 Chairman: We are progressing through
our questions. The answer to our question about when the passerelle
is next due for discussion in the Council of Ministers seems to
be a less than 50 per cent chance that it will be next due for
discussion within the measurable future. Is that about right?
Mr Hoon: I am probably going to get stuck with
the "less than 50 per cent".
Q28 Chairman: Can we come to the
question of the jurisdiction of the Court of Justice? As I understand
it, this is in the area of the First Pillar, Title IV, and what
we are concerned with here is expanding the Court's jurisdiction
to allow first instance courts to make preliminary references
and not just the final court—in this country of course the
House of Lords—under various provisions. The particular
provision in point is Article 68 of the Community Treaty, which
makes provision for an Article 234 reference only against those
decisions where there is no judicial remedy under national law,
which for us is the final court only, the House of Lords. Article
67 made provision that after five years had elapsed from Amsterdam,
five years from 1999 so now two years past, the Commission would
make proposals and we now have these proposals. What is the general
thinking of government on all that?
Mr Hoon: The Commission's proposal seeks to
remove unnecessary stages of referrals through domestic courts
in cases containing genuinely difficult questions of interpretation
of EU law. I can see the advantage of that in that it should increase
access to justice. It could speed up decision making. I think
our anxiety at the present time is that, by allowing all courts
to refer cases for preliminary ruling, it could have the opposite
effect in slowing down decision making. I think I am right in
saying that the average time for a decision of the European Court
of Justice at the moment is 20 months. The obvious advantage that
we would all assume about an early reference could slow things
down rather badly and there is obvious sensitivity in this area
in relation to asylum and immigration because the precise problem
that we have faced in the past has been—how do I put this
politely to my former colleagues in the law?—a tendency
to use each and every avenue of appeal frankly as a means of slowing
down the decision making process. I could be harsher than that
but I will rest on that diplomatic view. I am sure the Home Office
could be a lot harsher than I have been. Therefore, there is clearly
a risk that adding what is in effect an avenue of appeal at a
very early stage in the process might be an opportunity of further
complicating our existing asylum and immigration processes. That
would not be the case if currently there were speedier decision
making in the European Court of Justice but to be fair to the
European Court of Justice, having been to look at the building
site compared to when I first visited Luxembourg in about 1977,
they are undergoing very many changes as a result of enlargement.
We tend to see enlargement solely from the perspective of ministers,
but it must have had a massive implication for the way in which
the European Court of Justice is organised. At the moment it is
clearly making decision making rather difficult. I should add
that the opt in deadline for this particular proposal was 19 October.
The UK did not notify the Council of a decision to opt in by that
date. We have concerns about the proposal in the current form
for the reasons I have explained. We are certainly aware of the
possible benefits and are currently exploring the advantages of
playing a more active role in negotiations with a view to opting
in after the proposal is adopted, so we are not closing off this
process but we would want to look at the ways in which perhaps
these arrangements could be streamlined. I am certainly extremely
concerned at the idea of a series of references from any level
of our legal system.
Q29 Chairman: Would it be a series?
I follow the view you have communicated but it may be that, as
matters now stand, litigants are forced up to the highest level
in order to have any chance at all of a reference. You might be
able to cut out some levels of appeal if you had an earlier reference.
Mr Hoon: I think that is the harm that the proposal
is designed to deal with. I can understand that, as I said at
the outset. That is why we are not simply rejecting this out of
hand and we are prepared to look at ways of making this more sensible.
I would be slightly nervous about first instance courts or tribunals
having the opportunity of making a reference. Perhaps a compromise
might be an appeal stage hearing, but at the moment this is slightly
theoretical. We have not yet engaged on how we might do that.
It is somewhere between the extreme position that is currently
the case and allowing references at every stage in the process.
If we could get a compromise, that might be something that would
be attractive and avoid the problem that you rightly describe.
Q30 Lord Lester of Herne Hill: Under
European Community law as it stands, an employment tribunal can
make a reference and a magistrate can. Is there not a further
argument in favour of your approach on the following lines in
the area we are dealing with: that, as far as possible, one should
seek to approach European law through domestic law, not round
domestic law? As far as possible, you should get the domestic
legal order to solve the problems if you can because of the need
for the citizen to identify with the legal system. Apart from
the overload on the European Court of too many references, is
there not also the problem of alienation if the domestic legal
order is seen to be circumvented too easily without our judges
being able to tackle the problem? I have not put it very well
but is something along those lines a consideration?
Mr Hoon: I think it is. If I were more confident
that this was genuinely going to be limited to real points of
European law rather than the kinds of points of European law that
I could conceive of being used to challenge particularly decisions
in relation to immigration and asylum, I would be more comfortable
with this proposal. Having spent so long trying to provide a fair
but predictable and speedy process in dealing with immigration
and asylum cases, I do not want to be responsible for opening
up a gap in that that simply means that every case is delayed
by 20 months for references to the ECJ. The solution, I accept,
is the one that you have quite properly described.
Q31 Lord Lester of Herne Hill: If
you think about the other European system, the European Court
for Human Rights, you cannot get there on immigration or asylum
with human rights issues until you have exhausted all your domestic
remedies on the theory which I have just tried to summarise. If
you are reading across into this area in the other European system,
it is a bit odd that you cannot get to Strasbourg except by going
to the House of Lords but you can get to Luxembourg on a preliminary
issue on substantial issues of public policy in a very similar
area.
Mr Hoon: Except that presumably the first point
that you made should be the case in relation to the Human Rights
Act because more and more of our judges would apply the Human
Rights Act and therefore the incorporation of the European Convention.
What we would need, I suspect, are more of our judges and tribunal
chairmen to be able to apply relevant principles of European law
where they did affect asylum and immigration in a way that perhaps
resolved the matter in the court or tribunal rather than requiring
a reference.
Lord Lester of Herne Hill: They
can and do of course already do that. My wife is an asylum and
immigration judge who applies European law all the time and has
to do so.
Q32 Chairman: As I understand it,
you are saying that you now regard the possibility of going down
this road as too wide open to abuse in fields that already some
may recognise as being subject to abuse, not least immigration
and asylum.
Mr Hoon: I did not use the word "abuse".
I simply felt that there was a risk that this would provide an
opportunity to draw out these cases. We have known in the past
that this has been a particular problem for asylum and immigration
because inevitably when an applicant is in the country the fact
that they have been in the country for a long period of time necessarily
makes it harder to resolve the case against them later on. I want
to avoid adding an automatic 20 months in every case. I do not
say that will be the position; I am simply acknowledging it as
a risk and an explanation for our caution, having spent a lot
of time trying to improve the process. This is really Home Office
territory as much as anything.
Q33 Lord Mance: Is another point
too that cases refine themselves as they go up the system? Having
recently visited the European Court in Luxembourg again on a judicial
visit, one is very conscious that they welcome the carefully considered
views of higher courts. They do not always get them; sometimes
they simply get a reference and I think that is something that
needs consideration, but they do value our views. The judgments
are fairly neutral but the deliberations take them into account
and so do the Advocate General's opinions.
Mr Hoon: What I am searching for is a way in
which we can provide a compromise so that more of our appeal court
judges would be in a position to make references in this area.
That would provide a reasonable compromise between the extreme
that the Chairman set out and the risk that I described.
Q34 Chairman: Under the Constitutional
Treaty—had that gone ahead that would have replaced Title
IV of the European Community Treaty and Title VI of the Treaty
of the European Union with a single set of provisions on freedom
and security of justice and the whole shooting match would have
been subject to the ordinary, preliminary rulings procedure, save
only for the very limited area excluded under national police
operations, maintenance of law and order and safeguarding of internal
security. Under the Constitutional Treaty, the whole of the area
we have just been talking about—immigration, asylum and
so forth—would have been subject to preliminary rulings
from all courts. Have we slightly changed our view on that?
Mr Hoon: I am going to retreat into a political
answer for that. The Constitutional Treaty was a package of measures
agreed as a package. I am probably adopting a Germanic approach
if I say that I do not think at this stage I could say simply
because it is in the Treaty we are necessarily going to cherry
pick any elements of it. Without an overall agreement on the Treaty,
although it may well be mined for particular practical proposals,
I do not think it necessarily means that because it is in the
Treaty we are going to agree to the implementation automatically
of each and every one of its provisions.
Q35 Chairman: You have indicated
the down-side you see. Do you see any virtue or merit in it at
all? Have we any interest in going down that road?
Mr Hoon: If I only gave the down sides I have
given you the wrong impression because I do acknowledge the point
that I think you, Chairman, made right at the outset, which is
making people wait until they have got all the way to the House
of Lords before they can make a reference in this area is not
necessarily good for access to justice, or indeed certainty, and
frankly could waste a great deal of time in the lower courts and
tribunals. I am not ruling out the benefits; I simply want to
see that they are going to deliver those benefits in practice
and do not risk damaging the structures that we have struggled
over quite a long time to put in place.
Q36 Chairman: Turning to the Court's
own discussion paper, I do not know whether you have had an opportunity
to consider that or read it. It is quite a lengthy and dense document.
Have you had an opportunity yet to assimilate that?
Mr Hoon: I have not read it. I can identify
large numbers of documents that I have not read at the moment.
Q37 Chairman: Has the government
considered depositing it for parliamentary scrutiny? You are probably
not in a position to answer.
Mr Hoon: I have been helpfully reminded that
it was only sent to the Council on 28 September. I have done one
or two other things since then.
Q38 Chairman: Would not a month ordinarily
be long enough to decide whether you are going to deposit it for
scrutiny?
Mr Hoon: I think we are about to.
Q39 Chairman: We come to the question
generally arising I think principally as a result of the case
that we mentioned earlier, The Commission v the Council,
under which the European Court accorded a criminal competence
under the First Pillar to the Commission which I do not think
the UK government or most governments previously had thought they
had. How is that now being dealt with? To what extent is that
stultifying the work being done generally with regard to Third
Pillar concerns?
Mr Hoon: On the stultifying point, as I understand
it, the only dossier that is significantly delayed as a result
of this question about Community competence is one dealing with
the approximation of criminal sanctions on intellectual property
right infringements. In any event, there are some concerns by
a number of governments, including the UK, about whether it is
useful to pursue this matter further at the moment. Even that
is not the most obvious example of a problem. There is only one
other draft Community instrument containing criminal provisions
which is to do with an amendment to an earlier directive on the
possession of fire arms.
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