Examination of Witnesses (Questions 240-247)
Ms Evanna Fruithof, Ms Helen Malcolm QC, Ms Julia
Bateman and Mr Andrew Laidlaw
8 MAY 2008
Q240 Lord Bowness: Where legislation
has been proposed, at what stage do our witnesses think their
intervention is most effective and where? On questions of co-decision
in the Parliament, the Council or the Commission, once it has
been proposed, where do you think you can bring the most pressure?
Ms Bateman: I think certainly in a co-decision
proposal, the co-decision file will be within the European Parliament
and certainly on mediation, small claims and the European Payment
Order, the Parliament only recently had co-decision in that field
and I think they were quite active and strong in that and we had
a number of amendments on those proposals, particularly to do
with cross-border scope only, and felt that was quite an effective
way to influence. Certainly in criminal justice, although the
Parliament will offer a forum for political debate, there is relatively
little influence. We had amendments tabled on the European Evidence
Warrant that were adopted at the plenary session as far as defence
rights were concerned, but they never saw the light of day in
terms of the Council because it was only consultation with the
European Parliament. As you suggested, the power sharing between
institutions is different.
Chairman: Lord Burnett?
Q241 Lord Burnett: Could I just ask
about the proposed legislation in the area of criminal law following
the entry into force of the Lisbon Treaty which will result in
the need to take into account the views of the European Parliament.
That will gain a co-decision role presumably?
Ms Fruithof: Yes, it does. It is expected to
change things in one sense quite dramatically, or hopefully it
will. The way it is seen at the moment is that the Council is
likely to take a fairly prosecution-oriented stance because states
bring prosecutions. That is the perception also in the Parliament,
and the collective view in the Parliament is expected to be quite
defence-oriented. Therefore, the fact that they will become co-legislators
on the criminal justice side will, in the expectation of the Commission,
mean that their more pro defence-oriented proposals are likely
to get a much smoother ride through the rest of the EU legislative
process. In expectation of this and the new legal basis for proposals
like safeguards for defendants, and the fact that the national
veto will go, the Commission is planning on revitalising its safeguards
proposal, to name but one.
Q242 Chairman: Criminal procedural
safeguards.
Ms Fruithof: Yes.
Q243 Chairman: That is very interesting.
That is the main change which you foresee?
Ms Fruithof: Yes.
Q244 Lord Bowness: Do you think that
the shared right of initiative in the Third Pillar is a good thing?
Do you think the proposals to change it within the Lisbon Treaty
to a minimum number of Member States will improve the situation
if, indeed, you think it needs improving?
Ms Bateman: To date, and we have elaborated
further in our written evidence, the right of initiative for Member
States whilst protecting the Member States' role in this area
has caused a number of problems in terms of coherence of legislation
and co-ordination of wider policy. Equally, a Member State initiative
gets top billing, if you like, it gets priority in terms of the
six month agenda, so longer term Commission proposals are put
on hold whilst a presidency initiative, usually a presidency initiative,
is dealt with. It also means the Commission will have to allocate
resources to a draft piece of legislation that it had not foreseen.
Referring to accountability and influence, there is usually no
impact assessment or consultation on a Member State initiative.
In terms of the changes, as you have suggested, with nine as the
minimum number of Member States being able to bring an initiative
under the Treaty, this will mean a particular Member State who
wishes to take an initiative will consult and liaise with their
counterparts earlier on in the procedure of bringing forward legislation
and will probably have to address a number of the political issues
prior to producing that legislation. I am not sure how much of
a change this will be because we have already seen this happen
in terms of the trio presidencies and the in absentia initiative
has five other co-sponsors in terms of bringing that forward.
It may control the more domestic-focused knee-jerk reaction, if
I can put it that way, of the proposals, but I think it is foreshadowed
already by the realities of the way it is being done at the moment.
Ms Malcolm: If I could just add one brief comment
on that. As much as the question of where these ideas come from
in the first place, one of the things that I find very frustrating
as a practitioner who gives up a fair amount of time back in England
in terms of the criminal proposals, is how ideas die a death at
a fairly early stage. Two of the ones that I was particularly
interested in and involved with were the question of trans-national
bail, and the question of the appropriate forum in which to prosecute
trans-national crime; and that goes hand-in-hand with ne bis
in idem which, as you will appreciate, particularly in England
within the extradition field is enormously important. The differing
definitions of when you have in fact been "dealt" with,
in the broadest sense of that word, for a particular offence vary
across Europe. It causes huge problems with extradition. There
was a Green Paper that was published on that by the Commission
and it was out for consultation, at which stage I think it was
the Greeks who proposed their Member State own-initiative on this,
and it kyboshed the entire thing and it has all but disappeared
from public view for the time being. Whether it will be resurrected
we do not know. Another problem that has been caused within the
extradition field, but also elsewhere, is the question of the
definition of an "in absentia" judgment in a criminal
context. As far as I could see that should have been a relatively
uncontroversial amendment and, indeed, I drafted a couple of sentences,
which was all that was required, and as I understand it that went
forward and the Commission more or less adopted it. It was by
no means just me, there were all sorts of other stakeholders who
had precisely the same idea. There was a huge body of enthusiasm
for this and six Member States proposing it and that, again, has
been kyboshed. I have heard two different versions as to why:
one because a state was concerned to increase the level of safeguards
and one because a state was concerned in the opposite direction
not to have the level of safeguards that were being proposed.
I do not know which of those two is correct. The fact that something
so simple and apparently uncontroversial with the support of six
Member States managed to be killed off does not necessarily suggest
just because you get seven Member States who have to support a
proposal behind you that you are going to get home, so to speak.
Q245 Chairman: Does this come back
to the question as to the setting of annual or, indeed, presidency
programmes as to what gets pushed ahead? Does it relate to the
fact that, for example, the bail proposal has not recently progressed?
Does it come back to that?
Ms Fruithof: There is certainly more coherence
now between the presidencies. We have now this concept of troika
presidencies and the three will talk to each other. If the troika
presidencies get together behind a proposal then the fact that
they are sitting as chairmen of the meetings in the working groups
in the Council over that 18 month period will speed things up
much more.
Q246 Chairman: That will continue
under the Lisbon Treaty?
Ms Fruithof: That will continue, yes.
Q247 Chairman: Thank you very much,
unless there are any other points you want to add. We would be
grateful if you did put in writing the examples that you mentioned.
Mr Laidlaw: Of course.
Chairman: Thank you very much indeed.
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