Examination of Witnesses (Questions 220-239)
Ms Evanna Fruithof, Ms Helen Malcolm QC, Ms Julia
Bateman and Mr Andrew Laidlaw
8 MAY 2008
Q220 Lord Wright of Richmond: Our
papers show us that there is something called the independent
Impact Assessment Board.
Ms Fruithof: Yes.
Q221 Lord Wright of Richmond: From
your evidence, and all the evidence we have received, you have
got a hideously complicated networking problem. Have any of you
identified anyone on the independent Impact Assessment Board?
Ms Fruithof: No, it is within the Commission.
Q222 Lord Jay of Ewelme: Curious
definition of "independent".
Ms Fruithof: Yes, exactly.
Ms Bateman: Independent and inaccessible.
Q223 Chairman: Is it in any way transparent?
It produces for the Commission some assessment of the validity
and value of particular impact assessments. Does it publish that
assessment?
Ms Bateman: I am afraid I do not know the answer
to that.
Mr Laidlaw: I do understand in the example I
gave earlier of the transfer of companies' registered seats, it
was at that stage of the independent impact assessment that questions
were raised about the value of bringing forward the proposal.
Q224 Chairman: Let us revert to the
questions. Is there anything any of you wishes to add on the Law
Society's suggestion that one problem with Commission proposals
was that they were developed in "policy silos", in other
words that different DGs, as I understand it, have different and
sometimes conflicting interests and there may not be an entirely
coherent attitude. Is that something you want to amplify?
Mr Laidlaw: For the sake of time, I can make
a couple of quick comments. It is useful in this context to look
at the Commission DGs as similar to government ministries in terms
of certain ones will be looking after business interests, others
looking after workers. The key difference with government is that
you have a political strategy, a political coherence at the top
which sets the strategic framework, whereas with the Commission
you have Commissioners from mixed political backgrounds who may
have their own priorities and may want to make their own mark
in terms of the mandate of the Commission. I think that is one
of the key reasons why there is not the same strategic coherence
to the Commission's work. If you would like examples of legislation
that has come out where there have been inconsistencies then I
am happy to give you that in writing.
Chairman: That would be helpful. Lord Wright?
Q225 Lord Wright of Richmond: Can
I take you back to the Hague Programme? Mr Laidlaw said that your
focus is very largely on the Hague Programme. I do not know to
what extent any of you or your predecessors were involved in the
process leading up to the adoption of the Hague Programme four
years ago, but is there anything you can tell us about how that
was germinated? How did the ideas in the Hague Programme come
about and to what extent were you or your predecessors involved
in the formation of that legislation?
Ms Fruithof: I will start on this one. The Hague
Programme, in my view at least, has to be seen in a wider historical
context. I think it is the key, certainly in the justice area,
to how the Commission works, certainly on the civil side and,
in my opinion, in the future also on the criminal justice side.
If you go back to the Tampere European Conclusions, to the Vienna
Action Plan that came just before that, and then, very importantly,
to the two mutual recognition programmes on the civil and criminal
sides that were issued by the Commission at the end of 2001, you
will find there are detailed programmes of measures on the mutual
recognition side which, according to the Tampere European Council,
was supposed to be the cornerstone of judicial co-operation on
the civil and criminal sides. If you go to that and then look
forward you will see that, for example, on the criminal justice
side the programme of 2001 set out 24 measures that were intended
to be achieved on mutual recognition over the following years
without specifying when and how but just giving them priority.
At the end of each five year period what the Commission does,
in consultation, in particular with the Council, is to say, "Look,
this is what we said we were going to do. This is what the Treaty
allows us to do. How much of what we said we were going to do
have we achieved? Has the political scene changed? Has something
new come up that becomes more important?" Therefore, at least
in my view, the Hague Programme is basically a revisiting of the
existing programmes with just a re-jigging of priorities according
to what had changed in the interim, what they had already achieved
and what they wanted to bring forward in the next five years.
This also refers, my Lord Chairman, to the evidence we gave about
the table that the Commission and the Council work to. In the
civil justice side what they do is look at the terms of the Treaty
thus, "The Treaty provisions say that we need to legislate
for recognition, enforcement, applicable law enforceability, et
cetera, and these are the areas in civil justice that we are looking
at, so succession, family law, custody of children, contract and
so on" and then they effectively set up a table with those
two axes and fill in the boxes. So the Hague Programme, the Son
of Hague Programme next year, and so on, should not have too many
surprises because you should be able to look at what they said
they wanted to achieve from the beginning, what the Treaty allows
them to say they can achieve and what they have not yet done.
Q226 Lord Wright of Richmond: To
what extent are proposals coming now that were not foreshadowed
in the Hague Programme?
Ms Fruithof: Yes, of course, there are good
examples of proposals being adopted where content or timing has
changed from that planned. We already mentioned briefly the European
Arrest Warrant which, although it was foreshadowed by the original
Tampere Conclusions and then the 2001 Programme of Measures, nevertheless
its priority changed quite dramatically as a result of 11 September.
Then there are things like the Michel Fournier case in France
and Belgium in 2004, which was a case of a paedophile who was
active in Belgium, had a criminal record in France but because
there was no exchange of that information, Belgian authorities
knew nothing about him and he then committed several very serious
offences here. That prompted the Commission directly to accelerate
a proposal that they had had in mind. Indeed, if you look at these
Programmes of Measures, they are so widely drafted that, frankly,
anything they do probably was foreseen in one way, shape or form.
Another example is the Prestige oil tanker disaster in 2002 which
prompted several different measures by different departments of
the European Commission: the Ship Pollution Framework Directive,
which subsequently has been annulled; but also DG Transport brought
out legislation on single-hulled ships, and so on. You can see
external events will prompt action, but certainly in the justice
field the programmes as they already were perceived were so wide
that it would be disingenuous for me to say it is completely unforeseen
that they would do that.
Q227 Lord Wright of Richmond: Can
you just give us a general picture of the extent to which your
views have been adequately put forward and accepted, or at least
listened to, in this programme?
Ms Bateman: If I may comment on that. It is
worth recording that as the Tampere Conclusions were coming to
an end in 2004 the Commission launched a consultation and an assessment
of Tampere in future orientations and that was an opportunity
for a public debate and stakeholder debate on the next stage,
if you like. From our perspective at the Law Society we used that
as an opportunity to say, "We think there has been progress
here but there needs to be a lot more focus on defence rights
and procedural rights" which were deemed to be part of judicial
co-operation in the Tampere Conclusions but were then specifically
referred to in the Hague Programme. I am not saying we take credit
for that because one of the problems with lobbying is it is quite
hard to actually mark or measure success in this field, but that
was an opportunity for public debate and input. Similarly, the
Hague Programme Mid-Term Review that the Finnish Presidency had
in 2006 with a special Justice and Home Affairs Council. Certainly
at that stage the Department for Constitutional Affairs and Baroness
Ashton hosted a stakeholder round-table to say, "We are going
to this Council to look at the review of the Hague Programme,
what are your views as stakeholders and practitioners?" That
was a very helpful opportunity at which to say, "These are
our concerns. This is where we think there is progress. This is
where we think there should perhaps be a re-shifting of priorities".
It is very hard to quantify where the influence may be but those
are opportunities we have had to feed into the debate.
Q228 Lord Wright of Richmond: You
have given an admirable example of where the British Government
is taking an initiative. To what extent do you similarly get approaches
from the Commission to ask for your views as opposed to the one-way
process of lobbying your views into the Commission?
Ms Fruithof: Helen has previously referred to
an opportunity that came up several years ago, (but it has happened
since) in the context of the work that the Commission was doing
on the European Arrest Warrant. It was not called the European
Arrest Warrant in the early part of 2001, they were just looking
at extradition in general, but they did directly invite us to
provide expertise and we brought over two senior counsel. That
does happen. To be honest, and I am sure the Law Society's experience
would be similar, these things are becoming a little bit more
systematic now, so there are more lists of experts and panels
of experts. It is less likely you would have an ad hoc approach
along those lines. We are always on the lists of experts and we
do go to these expert groups. The mediation proposal was another
example, this time on the civil justice side, where the Bar was
directly involved in the drafting of the Code of Conduct on Mediation
and also, in fact, had very early sight of the draft proposal,
even before it went anywhere close to getting to adoption at Commission
level. We were able to comment on the drafting of that and consequently
have been quite influential all the way through and very supportive
of it. There are examples of legislation, and I know the Law Society
has them too, where we can genuinely point to them and say, "Yes,
we have actively influenced that instrument".
Lord Wright of Richmond: Can I just ask one
quick supplementary. Can you give us any sort of picture as to
what extent the other 26 Members of the European Union have people
like you operating in the lobbying process? I do not want a list
of all the other 26!
Q229 Chairman: Are you typical or
are you exceptional?
Ms Bateman: We currently share our premises,
and the Bar Council will be joining us shortly so it is a good
representation, with the German Federal Bar, the Austrian Federal
Bar and the international arm of the French-speaking Belgian Bar
who have a very similar function to what we do. We are representing
the national interests but we co-ordinate and work collectively
on some issues. You do not want a list, and I hesitate to use
the term big Member States, but there is Bar Association representation
from our counterparts in those Member States.
Q230 Lord Jay of Ewelme: Would you
normally consult with your equivalents from, let us say, the other
major Member States before responding to a request from the Commission
for advice or before lobbying?
Ms Bateman: We would not systematically consult,
but you know where people are working on similar issues. Certainly
from the Law Society and the Bar Council's perspective there is
very much the common law agenda, the common law perspective, that
we want to promote that would not be an issue for the other Bar
Associations. We are all members of the European Council of Bars
and Law Societies, the CCBE, so within that forum we get to know
who is working on what issue and what the ideas are. I think it
is more of an informal working together and we speak to each other
rather than it being systematic, if I can put it that way.
Q231 Chairman: I cannot resist following
that up. You say the other Bars would not wish to promote the
common law, and I can understand that, but is there a degree of
understanding of the common law's needs and could the European
understanding of the significance of the common law and its needs
be in any way improved?
Ms Bateman: I will make a very short comment
and then I might pass on to Evanna to talk about contract law.
Certainly within the forum of the CCBE, our umbrella organisation,
there is an awareness of respect for national legal systems, and
in our case it would be the common law perspective, and in others
people have their own agenda or—
Q232 Chairman: Legal culture.
Ms Bateman: --- legal culture that they wish
to promote rather than protect, shall we say. Within the Common
Frame of Reference, Evanna is more involved in that and I do not
know whether there is anything you want to say, without putting
you on the spot.
Ms Fruithof: My Lord Chairman knows from your
experience in the CFR network that over the time that we have
all been working on this, and the Bar has been very active on
this since 2001, certain countries have emerged as being more
sympathetic, shall we say, to the common law's views on this than
others. We find this also at Bar level, that there are certain
countries that have a less aggressive policy vis-a"-vis the
contract law profile. It has emerged more and more over the years
I have been doing this, which is now nine, that there are countries
you have a natural affinity with, regularly, on quite a broad
range of different issues.
Q233 Chairman: How good is the Commission
at taking account of that sort of consideration, the need to respect
national cultures in its proposals?
Ms Fruithof: Jumping ahead to something I wanted
to say in answer to a different question, that brings me to a
very sensitive topic right now specifically on the civil justice
side and, again, it was a concern that was raised in our paper
and I will take the opportunity to comment now that you have asked
that question. I can give you a specific example now in the context
of Rome I, the Rome III proposal on matrimonial law and so on,
on maintenance, and the fact that the UK has not opted in. There
are rumoured to be desk officers in DG Justice and Home Affairs
who these days are more or less saying, "Look, we know whenever
there is a civil justice proposal with applicable law in it that
the UK will almost certainly not opt in and, therefore, we are
not interested in bothering to find out what UK stakeholders'
views are on those laws because there is no point because in any
event they are not going to opt-in". That is a risk that
I have heard is materialising now in some of the departments.
Q234 Chairman: Is it not appreciated
that the purpose of not opting in may be to demonstrate that the
proposal is not acceptable as it stands but, nonetheless, in the
hope that it can be made so, as with Rome I, by negotiation?
Ms Fruithof: Of course.
Q235 Chairman: It would be surprising
if that was not appreciated within the Commission.
Ms Fruithof: My Lord, you might be right, that
is what one would hope would be the reaction but, nevertheless,
there is an element of human frailty in all this. At the end of
the day green papers and proposals are drafted by one or two individuals.
Once something is on paper it has a life of its own, which again
is why we are all saying you have to get in there right at the
very beginning. Those individuals have an awful lot of clout on
what goes in and what goes out. I am hearing that these concerns
are arising now, that there is this slight knee-jerk reaction
which may, sadly, have a knock-on effect on the criminal justice
side in the future and, therefore, we need to be quite careful
of that.
Q236 Lord Rosser: I come back to
this issue of just how influential the Commission is in initiating
proposals in the area of civil and criminal justice, and I think
I have got a flavour of that already from what you have been saying.
Sitting here, I get the impression that you see your role as reacting
to the Commission's ideas and agenda as much as feeling that you
can influence what goes in in the first place. It seems to me
the Commission is in a very strong position if people feel that
their role is primarily in reacting to what the Commission are
suggesting rather than being able to influence in a very direct
way what the Commission come up with in the first place. Do the
Council and the European Parliament have any great influence in
initiating ideas in this field of civil and criminal justice?
Have they made formal requests for legislative proposals from
the Commission? We have heard also from at least one Member of
the European Parliament about the own-initiative reports who suggested
that they could be pretty influential, but that may be a view
of a Member of the European Parliament who may be deluded in that
sense. My question is do the Council and the European Parliament
have much influence in initiating ideas in this area? Do they
make formal requests for legislative proposals? Do those own-initiative
reports have any real influence or is it a scenario where the
power when it comes to initiating ideas in this field very much
rests with the Commission? You have referred to papers being drawn
up by specific individuals. In a specific context earlier on,
and it was in a specific context, you made the comment that the
Commission were then able to bring forward proposals they had
in mind, that something had happened in a particular area and
that enabled them to do it, which paints a scenario of the Commission
having a very clear idea of what their ideas are and looking for
the opportunities to promote them. There must be so much lobbying
going on by different groups that the Commission could say in
regard to anything they brought forward that it does represent
somebody else's idea but just by happy coincidence it also happens
to represent what the Commission want to do. In our paper where
we asked you for evidence we referred to the Commission as the
main actor in initiating proposals. Is that very much your view?
Ms Fruithof: Yes. I would say that although
obviously the European Council's Conclusions are the beginning
of the story in relation to the civil and criminal justice portfolio,
the Parliament certainly does use, and increasingly uses, this
own-initiative possibility, in two different ways. One, to suggest
the possibility of legislation, and at least in one scenario recently
on succession, they have gone a bit further and activated the
power under Article 192 of the Treaty to say that the Commission
should pursue something. However, since that was already in the
wake of a Green Paper, the idea was already out there. Another
example is limitation periods, where last year there was an own-initiative
report which was put forward by the Legal Affairs Committee of
the European Parliament and subsequently adopted, suggesting that
there should be some sort of proposal harmonising limitation periods
in personal injury litigation throughout the European Union. The
idea for that came from the Pan-European Organisation of Personal
Injury Lawyers and the drafting of their idea was done by a member
of the Bar and an Italian professor. Between the two of them they
tried to find a compromise that would suit both jurisdictions,
regarding them as being relatively representative of the interests
there might be, and put this forward and then the Parliament ran
with it. The Commission's reaction was decidedly lukewarm. One
can discuss why that might be. In the context of what we are discussing
here I would say there were probably two reasons, and one sees
this quite often. One is although the Commission was talking about
doing something along those lines, they possibly did not have
quite what was being put forward in mind. You have to slot your
idea into what the Commission is broadly-speaking planning on
doing. Secondly, you also have to get your timing right. It has
to be more or less at the time that the Commission is proposing
to do something. In the criminal justice field, because the Member
States have had the right of initiative, the Commission has not
been able to ignore it when an idea like that comes forward from
a Member State, but on the civil justice side there has not been
a national right of initiative for several years now and, therefore,
when ideas like that come forward the Commission is able to say,
"Yes, that does fit in with our broad plans and we will go
with it", or, alternatively, "No, it does not and, therefore,
we will put it on the backburner or we will ignore it completely".
There is another own-initiative report on the role of national
judges that is emerging now, one element of which is on the application
of foreign law in national courts. It has not been adopted but
is going through the process of being adopted. That was foreseen
in the review clause that was negotiated between the Parliament
and the Council in the context of the Rome II Regulation and that
review clause was critical to the conciliation agreement that
took place in Rome II and how the result came out. The Parliament
made it, as it were, a condition of its agreement to the final
version of Rome II that there would be this review clause and
it would have in it the possibility of legislation on defamation,
on road traffic accidents and also on this question of the application
of national law. That is another way that the Parliament tries
to get its ideas in but, again, it is a question of whether or
not the Commission will pick it up.
Q237 Chairman: We must cut it a little
bit short.
Ms Fruithof: In summary, yes, the Parliament
does put forward ideas, often very pro-actively, but the Commission
at the end of the day can say "yes" or "no".
Q238 Chairman: Just taking the Common
Frame of Reference again, sometimes the Parliament's idea may
go far further than the European competence.
Ms Fruithof: Yes.
Q239 Chairman: A recommendation for
harmonisation of civil law is certainly not, at least uncontentiously,
within the competence of the Union or the Community.
Ms Bateman: My Lord Chairman, can I make one
very brief follow-up to that. One of the things that should be
borne in mind in terms of a Member of the European Parliament's
own-initiative report is if a piece of legislation is put in as
an annex to that report there is absolutely no scope for any Member
of the European Parliament to amend that actual legislation, so
it is basically a fait accompli that is then presented to the
Commission. At that stage there is no impact assessment, no external
influence or other discussions. To some extent, whilst I think
the influence of that own-initiative report is quite limited,
there is still quite a dangerous angle to that that should the
Commission wish to take on that proposal they take the proposal
lock, stock and barrel and can run with it. In terms of accountability
I think that is a slight concern.
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