Memorandum by The Law Society of Scotland
INTRODUCTION
The Law Society of Scotland ("the Society")
welcomes the opportunity to put forward evidence to the House
of Lords European Committee Sub-committee E (Law and Institutions)
as part of its inquiry into impact of the EU Reform Treaty in
the areas of freedom, security and justice.
GENERAL COMMENTS
EU legislation and policy arising out of the
area of freedom, security and justice are of clear importance
to all legal systems in the EU encompassing, as they do, part
of the core relationship between the citizen and the state, the
nature of each person's legal relationship with each other in
such personal issues as family life and death, and the rights
of the individual in society.
Notwithstanding the legislative limits of the
current EU powers under the third pillar, important steps in legislating
on criminal law have already been taken—such as the European
Arrest Warrant—and proposed—such as pre-trial supervision
and the exchange of information on conviction. Taken with the
significant work which is being carried out in relation to matrimonial
law, proposals on succession law, and legislation on civil justice
matters such as a European payment order and a future European
small claims regime, a significant body of EU intervention is
being built up in this area.
This increased involvement of the EU seems an
inevitable consequence of the logic of the internal market. Nevertheless,
in these areas, probably more than any others, the traditions
and norms of national justice systems must be treated with care
and the principle of subsidiarity carefully adhered to. In addition,
in particular in the area of criminal law, although it is likely
there will be greater co-ordination of law and practice in these
areas in the future, and it is generally in the interests of all
to ensure the efficient cross-border functioning of our justice
systems where that is required, it is also essential to ensure
that such steps will be carefully balanced by fairness in the
treatment of those affected.
The Society considers that the twin aims of
ensuring the smooth functioning of the internal market and the
appropriate protection of national systems are not always mutually
exclusive. It is possible, through carefully drafted legislation
with well-considered and thorough pre-legislative consultation
to produce proposals which provide the framework for harmonisation
where that is required, and which can be implemented in a way
that is compatible with national systems. EU law can moreover
enhance equality of arms by raising procedural standards in criminal
matters across the EU where this is required as a counterbalance
to increased state and prosecution co-ordination.
The Reform Treaty's provisions on the future
EU regime for dealing with family law, criminal law, succession
law, and criminal and civil procedural law also have an additional
significance in Scotland. Firstly, these involve what are important
areas of competence devolved under the Scotland Act 1998 and therefore
largely within the competence of the Scottish Parliament and the
Scottish government. In addition, and importantly, these are also
areas where Scots substantive and procedural law are often different
from the rest of the UK, and Scottish institutions—such
as the Procurator Fiscal Service, the courts, the prisons and
the legal profession—form separate and distinctly regulated
bodies. In a UK context these factors make the Scottish position
potentially more complex and add a particular dimension not only
to implementation of legislation but also pre-legislative policy
considerations and negotiations.
SPECIFIC COMMENTS
The Society is not able to comment on all issues
raised in the Call for evidence, but has the following specific
comments to make.
Changes to legislative procedures in criminal
law and policing
The Society considers that one of the concrete
benefits of reforms under the Treaty will be the transfer of criminal
law and policing to the ordinary legislative procedure of the
Union. This should provide a welcome consistency in the framework
for law-making in this area and thus in transparency and comprehensibility.
The Society also supports, as set out in the Society's evidence
to Sub-committee E in June 2006 on the criminal competence of
EU, the move to co-decision procedure and the increased importance
of the European Parliament in that process. In an area of law
of such importance to EU citizens, it is essential to ensure proper
democratic input through the Parliament, especially with the introduction
of qualified majority voting.
The Society also considers that the shift of
emphasis in the right of initiative in legislating in this area
to the Commission and away from Member States can only help increase
the possibility of coherent and high quality policy-making and
help to avoid the potential pitfalls of a system where policy
proposals can be largely driven by issues problematic for only
certain Member States.
The Society also notes the safeguards in place
to protect the position of the UK with regard to criminal and
policing matters. The adoption of an opt-in system along the lines
of that used previously in the area of civil justice would appear
logical given the position adopted by the UK on justice issues
and the EU since Tampere, and it can be seen from the civil justice
field that the UK government does in practice decline to opt-in
to some proposals. The Society has supported that position in
the past, for example in relation to recent family law initiatives
on divorce and matrimonial property. However, as the Society has
consistently argued to UK and Scottish government, and EU institutions,
it is essential that the increasingly extensive measures being
taken to increase the powers of police and prosecution authorities
cross-border must be counterbalanced by measures applying at least
basic minimum standards for suspects and the accused in criminal
cases. These have been the subject of legislative proposals for
some years now which have been blocked by the UK Government along
with some other Member States. Whether a system of opt-ins will
promote the adoption of such measures, or whether rather there
may be a temptation to adopt those measures which in effect increase
state powers cross-border, but not necessarily those which provide
the balancing right for those being dealt with by the system,
remains to be seen, and the Society hopes that the government
will take a positive approach to this important issue in the future.
A system of opt-ins could, in addition, create
specific issues for devolved administrations in this very important
area of devolved competence. Although the ability of the UK Government
to choose not to opt in to criminal proposal is a potential safeguard
for the Scottish criminal justice system, such a system will add
a layer of complexity to the already involved arrangements required
for inter-governmental negotiations led by the UK Government where
the views of the devolved administrations and parliamentary bodies
must also be taken into account. It can be envisaged that situations
may well arise where the view regarding an opt-in will be different
north and south of the border and this protection would have to
be seen in that light. Moreover, although the Society welcomes
the enhanced and formal role of national parliaments in scrutinising
policy proposals under the Treaty, it is submitted that where
the proposal consulted on is within an area of devolved competence
under the various devolution settlements in the UK, such as criminal
justice, devolved bodies must be included in the consultation
process in order that a comprehensive and meaningful UK response
can submitted to the EU. Whilst the Society considers that this
process is essential, it is recognised that this will also contribute
to the complexity of the system. Firstly, the extremely short
timescales for the consultation of national parliaments set out
in the Treaty mean that meaningful consultation of any body other
than Westminster will be in practical terms very difficult. In
addition, the question needs to be asked: what happens if there
is no agreement in this very public arena between the UK Parliament
and the Scottish Parliament on the response to an issue, for example,
of criminal policy with particular resonance in Scotland? Whilst
it is clear from the Treaty that the official position is that
adopted at a UK level, there are potential issues of political
tension which may have to be dealt with.
The jurisdiction of the European Court of Justice
The Society considers that the extension of
the powers of the European Court of Justice in relation to the
area of freedom, security and justice is a natural concomitant
of the move to qualified majority voting and the bringing of this
area of legislative power within the mainstream of EU legislative
process.
European Public Prosecutor
Treaty provisions create the possibility of
the creation of a European Public Prosecutor, on the unanimous
vote of all Member States. The Society has previously expressed
its concerns about earlier proposals to create a function of European
Public Prosecutor[22]
and, pending the production of a more detailed proposal on this
issue, these concerns remain.
The Society's principal concerns are:
1. The respective roles of the European
Public Prosecutor and the national prosecutor
The creation of a European Public Prosecutor
will necessarily cut across the function of national prosecutors,
each with a different legal basis and constitutional role. The
function of the prosecutor, how it is carried out and the supervision
of that role are issues of complex constitutional law and practice
and give rise to domestic political tensions in all legal systems.
How a European Public Prosecutor operating directly in the courts
of Member States would fit into the various national legal systems
in practice is a question potentially fraught with political and
other implications.
In addition, there exist a number of issues regarding
the potentially concurrent functions of the two prosecutors. Will
the European prosecutor have the unique power to bring forward
prosecutions for fraud on the EU finances, however that is eventually
defined, or if the European prosecutor declines to prosecute will
the national prosecutor also be personally barred from acting?
This is of particular concern in Scotland in
view of the fact that, under the devolved constitution set out
in the Scotland Act 1998, the Lord Advocate is entrenched as head
of the system of criminal prosecution in Scotland.
2. The definition of the crime prosecuted
It can be assumed that there is no one definition
of fraud which applies across all EU Member States. Previous attempts
to introduce the idea of a European Public Prosecutor have put
forward a single definition to apply to all frauds to fall under
the new Prosecutor's competence, which has been at odds with the
current definition of fraud in Scots law. The experience of providing
the single definition of a crime at EU level has not been successful,
for example in the cases of terrorism and racism, and it does
not seem likely that it will prove an easier task.
3. System of prosecution to be adopted
The previous corpus juris proposal envisaged
the investigatory stages of a prosecution being directed by a
judge. Such a system is unknown in Scots law and it is difficult
to see how it could be operated in practice in any part of the
UK. This highlights a more general problem of the substantive
differences in the prosecution systems of the different EU Member
States and the potential of a European Public Prosecutor, whatever
the model adopted, conflicting with the constitutional principles
of at least some jurisdictions.
All of these issues, and a number of others,
such as provisions as to investigatory powers, relationship with
the police and other reporting bodies, remand, sentencing, and
standard and burden of proof require to be satisfactorily addressed
before, in the Society's view, any proposal for the actual establishment
of a European Public Prosecutor can be considered appropriate.
EU Charter of Fundamental Rights
The Society notes that the Treaty is intended
to make the EU Charter of Fundamental Rights binding in its application
to EU law. However, there seems to be a lack of clarity in the
UK as to what the actual effect of the Charter will be in practice,
which creates an unfortunate lack of legal certainty. In particular,
the inter-relationship of rights under the Charter and those under
the European Convention on Human Rights has not yet, it would
appear, been well mapped out. This is of particular importance
in Scotland as legislation passed by the Scottish Parliament is
required under the Scotland Act 1998 to be compatible with both
Convention rights and Community law (section 29). Where this stipulation
is breached, the provision in question is "not law",
and thus the issue of clarity in the application of the Charter
is all the more acute in areas of competence devolved to the Scottish
Parliament. It is in particular important that there should be
no inconsistency between the requirements of Convention rights
and the Charter.
The Society notes that a Protocol specific to
the UK on the application of the Charter of Fundamental Rights
is annexed to the Treaty. Although this is intended to supply
some clarity in this important area it has not, in the Society's
view, made it more apparent what the effect of the Charter will
be. It can be expected that this will only be settled through
the courts in due course.
Family law measures and the family law passerelle
The Society notes that, under the Treaty, family
law measures remain subject to the unanimity rule unless, on a
unanimous vote, their consideration is moved into the ordinary
legislative procedure. In both cases, the UK will be able to decide
whether or not to opt into each family law measure as it arises.
The Society notes the pace of the creation and
enactment of legislation in this area has been great and can give
rise to difficulties in properly managing implementation. As stated
above, the Society considers that UK has appropriately used its
option of not opting in to proposals in areas such as applicable
law on divorce and matrimonial property. The impact of legislation
that has been enacted so far is still uncertain and, in the Society's
view, time is required for it to be properly integrated into national
legal systems before more is introduced. The Society recognises
however that in this sphere, as in others under the mantle of
the area of freedom, security and justice, there is a danger of
isolation in repeated decisions not to participate in particular
areas of legislation and commends the UK's practice of continuing
to be involved in discussions during the evolution of legislative
proposals in this area even once the decision not to opt in has
been taken.
12 December 2007
22 Evidence of the Law Society of Scotland to the House
of Lords European Communities Sub-committee E on prosecuting fraud
on the Communities' finances, February 1999. Back
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