Examination of Witnesses (Questions 300-319)
Mr Kim Darroch, Mr Vijay Rangarajan, Ms Sally Langrish,
Mr Paul Heardman, Ms Clelia Uhart and Mr Gian Marco Currado
8 MAY 2008
Q300 Chairman: Indeed, we get very
polite letters and have recently had one on the Supervision Order
proposal from the Commission saying that account has been taken
of our views.
Mr Rangarajan: I was going to mention that one,
and Prüm and PNR, all of which they read quite attentively
what you had written and I think it had a material effect.
Mr Heardman: One place where they are read very
avidly in Brussels, of course, is in the European Parliament where
they have a very high reputation and with this growing network
of links between national parliamentarians and MEPs, that is a
trend that will only increase in the future.
Chairman: That is helpful, if only to encourage
us!
Q301 Lord Wright of Richmond: A very
quick question which arose from our previous evidence session
with the lawyers. Are you aware of occasions when there has been
an assumption that the British Government might opt out and that,
therefore, we are no longer worth consulting? I am shorthanding
what they said.
Chairman: I think perhaps the evidence was no
longer worth taking account of in the proposals produced because
if the common law was not going to be involved you did not have
to cater for it. We were concerned and interested by that answer.
Lord Wright of Richmond: Is this a real problem?
Mr Rangarajan: I am not aware of any specific
case where that has happened. It is clear on the development of
Frontex they expected us initially to be in and then it became
clearer once the legal development was underway that we probably
would not be, and that was one of the reasons why we challenged
our participation in the passport case. Obviously when it comes
to the more purely Schengen-related areas, and there is a grey
area at the edge of that, sometimes the Commission thinks, "Well,
the UK will not be in it". I am thinking particularly of
issues like the development of some of the biometric documentation.
There is a counterbalance to that which is the expertise which
parts of the UK machine have developed. Although we may not be
bound by the final legislation or be barred from participating
in it if it is purely Schengen building, there is still quite
a lot of policy dialogue on how you do these biometrics in the
first place and we need to make it interoperable. It is not quite,
"We will not talk to the UK" because quite often, and
pretty well across the board in the JHA area, we at least have
expertise and experience in these areas which they would anyway
find useful.
Q302 Lord Wright of Richmond: And
in the case of Frontex, membership of the board?
Mr Rangarajan: Yes, a place on that as an observer.
Where I think it is a little bit complicated is in some of the
issues to do with the common law where we have examples of proposals
which do not take sufficient account of common law interests.
There are two reasons for that. One is we feel there is a lack
of expertise on the common law in some parts of the Commission,
and we are trying to help them and to remedy that. The other is
partly I think there is a sense of, "The chances of the UK
being in this are small and we do not really understand their
system either".
Q303 Chairman: Can you help us on
how you are trying to help them?
Mr Rangarajan: For example, we have been trying
to get the civil law part of the Commission to the UK to do a
joint set of training with the Irish on the common law system,
take them in to see a case and have a series of eminent speakers.
I think you were on our hit list at one point, my Lord Chairman,
to come and describe why this is different, how we see things,
how we interpret legislation in a very different way and explain
that the problems we have, for example on applicable law in family
courts, are not made up but are part of the intrinsic nature of
having an adversarial system.
Q304 Chairman: What about the personnel?
Recently there has been discussion about the number of common
lawyers in the Commission. Is that a problem which has been resolved
or is it a potential ongoing problem?
Mr Rangarajan: That one is a potential ongoing
problem.
Q305 Chairman: Is there something
that we should say in this area? What is the problem and how does
it arise?
Mr Rangarajan: I think it arises partly because
you can get a concentration of policy officials, and to take the
example of family law again, who come from a predominant background
and in this case the predominant background of quite a lot of
the Family Unit is a French legal background, which makes it quite
difficult to understand our system. The Ministry of Justice are
quite seized of this and are trying to increase their secondment
budget and trying to increase slightly more strategically where
they put people. One of our wishes is to put someone who is a
good common lawyer particularly to work inside DG JLS.
Q306 Chairman: So there is no unwillingness
on the part of the British Government to second or send people
to the Commission?
Mr Rangarajan: No, we are trying quite hard
to do that.
Q307 Chairman: They are positively
trying to do that?
Mr Rangarajan: Yes.
Q308 Lord Norton of Louth: You mentioned
the Annual Work Programme of the Commission and my question is
how effective that and the Strategy Policy is in influencing the
legislative agenda. You made the point earlier the Work Programme
itself is not created in a vacuum so I assume that has quite an
impact in developing the agenda.
Mr Darroch: That is one of the pleasures of
crawling through this every year. It is not really a vehicle for
initiating new ideas. You do not go through it and think, "My
goodness, they are going to do this or that", it is about
primarily the prioritisation of stuff that is in the pipeline
already. It is a significant document, but not one that you are
going to find usually will surprise you.
Q309 Lord Norton of Louth: As you
say it draws together something that is in a coherent shape for
the year, so does that then influence, if you like, non-agenda
setting in terms of what is then kept out once that has been drawn
together?
Mr Darroch: If there is something not on the
Work Programme that you expected to be there it is an indication
that it is not a priority for the Commission and they have put
it on the backburner. If it matters to you, you have to go to
them and say, "Why is this not there? Could you put it back?"
Q310 Lord Bowness: When we have been
talking to other witnesses about the area of Freedom, Security
and Justice they have said to us that the legislation there is
developed in a somewhat unsystematic way and part of that is because
of undue influence by other groups. Do you think that is the case?
If it is the case obviously it matters. Does it arise out of the
fact that this is the area where there is the shared initiative?
Mr Darroch: My Lord, we do not agree with that
assessment is the short answer. For the longer answer, I will
pass to Vijay.
Mr Rangarajan: There are three points on that.
The first is because of the Tampere Programme and the Hague Programme,
in a way the work on this is quite heavily structured and has
a certain focus. But I can see why it gives the impression of
being unsystematic. I think that is partly because the number
of proposals going on and the length of time they take to negotiate
means that it can appear from the outside as if there are just
individual little things being picked off one-by-one and even
though the legislation may have started at one point it ends up
at very different times, so people will wonder why on earth did
you do the European Arrest Warrant first and then procedural rights
several years later. It is partly negotiating and partly resource
constraints in the Commission and partly the political priorities
at the time. In the end, is it unsystematic, and I would add a
question, if I may, is that a bad thing? The danger of a purely
systematic approach seen from where we sit is that it rather implies
the EU is going to legislate progressively over everything and
I do not think that is what we would like to see. What we would
prefer to see is where there are particular issues, where there
are problems, an impact assessment. Where there is an identified
problem where EU action will help, then a piece of legislation
should be brought forward. There is a strong counterview, particularly
on the civil law side, and contract law side. Some people have
been calling for something which is much more systematic on the
civil law side, a complete codification and a wide-ranging piece
of legislation covering the whole of civil law. Sometimes people
have brought forward quite ambitious proposals which cover a tremendously
wide area and have not had very much success. The premise that
it is a scattergun approach and does not have any focus, I would
say the Hague Programme at least sets quite a clear set of directions.
The successor to that is being negotiated now—these "future
groups" are working up a series of ideas for what is going
to be the successor to the Hague Programme and that is going to
be even more focused, I think. They are setting themselves three
or four particular directions to go in, one on data sharing and
one on police co-operation. The scattergun nature of the proposals
themselves is inevitable given the process, but I am not quite
sure it is necessarily bad that we do not cover everything in
the fullness of time.
Mr Darroch: Just a word in support of being
unsystematic. You want a basic structure and a basic programme,
but you need some flexibility in the system so that you can respond
quickly to new events and new circumstances, especially in this
area of new threats. You need to be able to put through legislation
quickly but, as it were, leapfrog over the stuff in the pipeline
and do something if you are to be effective in this area. It is
a new area of policy and the priorities in 2004 do not always
look the same in 2007. An obvious example is 9/11 changed everything
and initiated a whole new set of measures and issues which inevitably
overtook the established agenda.
Q311 Lord Bowness: Can we just touch
on the shared right of initiative. Does the shared right of initiative
cause any difficulties and do you think the revised proposals
under Lisbon will improve the situation, if indeed you think it
needs improving?
Mr Rangarajan: Yes. The right of initiative
by individual Member States has not caused enormous difficulties
but it has wasted quite a lot of time and political effort. There
have been several examples of initiatives which have been drawn
up by an individual Member State, largely to do with a particular
event or their domestic politics, which have not really got very
much resonance with the rest of the EU but, nevertheless, because
they were the Presidency, say, have taken quite a lot of negotiating
time. In general, Member State initiatives which have got significant
backing, and if we take the Eurojust proposal which has just come
out, that had seven or eight Member States backing it, or trials
in absence where a large group of Member States were co-sponsoring,
tend to be much better thought through, having been through a
kind of internal negotiation and testing process first, and they
do not cause anything like as many difficulties. That is except
in one respect, which is they almost always lack a proper impact
assessment and that really is a major lacuna because sometimes
we are getting a major piece of legislation and it has been drawn
up by a group of Member States' experts thinking, "This is
okay in my country", but they have not taken into account
what the Commission does at least do, which is a wider view as
to how it interfaces with other legislation. I think that was
a point made in your Prüm report, for example.
Q312 Baroness O'Cathain: Can I just
ask a question on that, my Lord Chairman. How come that actually
occurs? If the people who are dealing with this legislation are
promoting ideas, having initiatives, and do not realise that an
impact assessment is fairly fundamental to anything proposed,
surely there must be a set of guidelines somewhere which say,
"If you are going to initiate something you make sure you
have got an impact assessment".
Mr Rangarajan: I think there is a set of JHA
Council Conclusions that requests Member States who make their
own initiatives to draw up impact assessments.
Q313 Baroness O'Cathain: But they
ignore them?
Mr Rangarajan: But they have not been followed.
Q314 Baroness O'Cathain: I see. They
ignore them.
Mr Darroch: Dare I say this is a sort of cultural—cultural
may be the wrong word—issue. The impact assessments are
well-established in the British system but are completely unknown
in some Member States, quite a lot of Member States.
Chairman: Lord Burnett?
Q315 Lord Burnett: I wonder if I
could go on a slight frolic of my own. That is, as a Committee,
are we being far too parochial? In other words, should we take
evidence or try to take evidence from the representatives of another
Member State or other Member States and, if so, who do you recommend?
I suppose the main question is, is sufficient account taken of
national laws and systems, eg the common law tradition, when preparing
draft legislation whose effective implementation depends on the
national legal framework? Are fundamental rights adequately taken
into consideration?
Mr Darroch: I will let Sally answer the second
part while I think about the first part.
Ms Langrish: Fundamental rights—yes, they
are very much taken into account, at least in theory. As you probably
know, there is clear ECJ case law that fundamental rights being
observed is part of the validity of an EU Act, so if an EU Act
breaches fundamental rights it can be challenged in the Court
of Justice. We routinely have recitals in draft EU legislation
saying whether relevant fundamental rights have been taken into
account. Explanatory Memoranda also should include an assessment
of compatibility of a proposal with fundamental rights. We now
have the Fundamental Rights Agency of the European Union which
monitors EU legislation for fundamental rights compliance and,
of course, the Charter of Fundamental Rights has given greater
prominence to those rights which are already observed in the European
Union. Certainly, in theory, fundamental rights are observed and
are part of the system.
Q316 Chairman: Can I just ask whether,
in practice, there may have been a greater focus on measures to
counter things like terrorism? I am thinking of the terrorist
legislation, money laundering legislation, the European Arrest
Warrant and so on, all of which have given rise to some concerns,
I think, as to whether it would not have been better to accompany
them with some counterbalancing legislation, such as the procedural
protection, and possibly things like the in absentia proposal
which are now still in the pipeline. Can you comment on that general
possibility?
Mr Rangarajan: I think you are right. The timing
at this juncture between the various proposals has not made life
at all easy, partly procedural rights, partly the political priorities
which made the European Arrest Warrant very urgent after 9/11
and then a much slower working out of some of the rights legislation.
I think the picture is not quite as bad as it looks on that because
all EU Member States are in the ECHR and in practice it has been
difficult to identify what value some of the EU legislation can
add in terms of fundamental rights, given the extensive case law
and the working out of the ECHR. Yes, in some cases it is possible.
But it has just taken quite a long time to ensure something which
is both useful and does not duplicate entirely what already exists.
One of the problems that we do have, of course, and I think this
was a point that Lord Lester made last time, is that the ECHR
with 47 Member States is not as good as the EU at making sure
that all of the procedures which it sets down are actually followed
in Member States. Increasingly, we are seeing a process where
the EU gets involved in making sure, for example, on procedural
rights, the ECHR procedures are much more strictly observed and
in a level of detail which the ECHR itself does not get into.
Mr Darroch: Two comments on your first question.
First of all, you would always find it interesting and educative
to talk to representatives of other Member States about their
approaches and their views on the sorts of issues you have covered
with us today, or anything else European for that matter. On legislation,
in particular, if you were to go and talk to the Germans you would
see two things, probably neither of which would surprise you but
they would be quite marked differences with us. One, they have
a much less questioning attitude than the UK as a whole as to
whether regulation and legislation is the right route. We have
a wider mix of approaches, non-legislative approaches, and we
do not always believe that legislation and regulation is the right
route, and they tend to, so they do not bring any, or little,
of the questioning to it that we do. Second, of course, life is
much more complicated for them because of the difference between
the Länders, the regional governments and the national government,
and that does complicate things for them quite a lot in the way
that it does not yet for the UK. That would show quite a difference
of approach. You would find the northern Scandinavian European
Member States much closer to our approach. As you go further south,
they believe much more in regulation. Yes, you would find it interesting
and useful.
Q317 Lord Burnett: Who should we
approach, through you probably?
Mr Darroch: My other point is you could get
quite an interesting snapshot of the differences, of course, by
talking to a range of MEPs of different nationalities who are
probably quite representative of the Member States' views. As
to who you would approach, if you are thinking of visits to Berlin
or Paris or wherever, then you would do it through the normal
channels and the embassies there would take care of you. If you
wanted to see Permanent Representatives here you do it through
us, but you might find it better to talk to the capitals.
Q318 Lord Burnett: It would be interesting
to see how powerful the Germans are as initiators.
Mr Darroch: Yes.
Q319 Lord Bowness: With respect,
my Lord Chairman, it is a question that we could ask Mr Darroch.
Mr Darroch: I do not know. I do not think anyone,
apart from our neighbours immediately across the Channel, does
as much interaction with the Commission about the shaping of legislation
as we do. We like to believe that we are one of the more effective
operations in Brussels.
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