Examination of Witnesses (Questions 20
- 39)
WEDNESDAY 14 NOVEMBER 2007
Professor Jo Shaw
Q20 Lord Lester of Herne Hill:
I am still looking for a factual example so that I can see where
the shoe would rub in that case.
Professor Shaw: This is not a live example because,
as I understand it, it has not been an issue that has been threatened
with the UK, but DNA databases, with the Treaty of Prüm,
would be one possible example where it would not be merely an
inconvenience to be locked out from a DNA database because it
was seen as being a Schengen development under what is now the
Third Pillar, but I think it would be rather more significant
in its impact on the UK's capacity to be a good European citizen
in relation to the fighting of serious crime. Whatever else one
says about the UK as a member of the European Union, it is quite
a good citizen in relation to the crime aspect of it.
Q21 Lord Lester of Herne Hill:
Presumably it goes beyond that. If that were a real example it
would not be just being a good citizen, would it, it would be
that we would need the co-operation of being within the system
in order for ourselves to be able to combat serious crime by use
of DNA on a European basis, or have I got it wrong?
Professor Shaw: I think it is a slightly artificial
example because there is no way that the rest of the Member States
would not want to have access to the rather substantial British
DNA database. In that sense it is an artificial example but it
is not an artificial example in the sense that whatever measure
(which will be concluded in the next few months formally speaking;
it has been politically agreed) is there to implement the Treaty
of Prüm to bring it into the Union system, having been originally
agreed as what some people sometimes call Schengen III, it will
probably then have to be reformulated to make it suitable for
being a First Pillar measure. If at that point it is done in a
way that the UK were to deem unsuitable, then all of the mechanisms
for the UK to opt out would in fact kick in, even in relation
to such a measure that is already agreed under the Third Pillar
and would by then already be in force. You can imagine that a
situation would arise, for example, if you had to redesign the
database so that it did not access directly into the UK, where
there could be costs. This is the example that is given in a couple
of places in the Protocols where the UK, in return for securing
its opt-outs, has been put in a position where the other Member
States have said, "in that case you must bear the costs of
perhaps redesigning a computer system in order to be a computer
system for 26 Member States rather than a computer system for
27 Member States".
Q22 Chairman:
Can I follow that up by asking whether you can help us as to why
it is that this is such an issue in relation to the two cases
where there is actual litigation? I think they concern the European
Agency for the Management of Operational Co-operation at the External
Borders and Standards for Security Features and Biometrics in
Passports and Travel Documents. Why was it that there was not
agreement at the European level for the United Kingdom to participate?
Why is it that the United Kingdom is having to try to establish
through the Court a right to participate?
Professor Shaw: I really do not know. Maybe
somebody around this table does know. I do not know to what extent
at least some of it may have been about establishing a principle.
As somebody said already, we participate in a very large measure
in relation to Frontex, albeit not directly through the Regulation,
but non-participation in the Passport Regulation is hard to justify.
Q23 Chairman:
Can I move on to the next question and that is related to your
comments in your opening remarks about the sharpening up of substantive
powers. Looking at the different language of the existing Treaties
and of the proposed formulation of Title IV, or whatever it is
now called, the chapters on border checks, civil co-operation,
criminal co-operation and police co-operation, how far do you
detect any substantive change, in particular any extension, of
the competence of the Union?
Professor Shaw: The first point to make is that
this is an area where the Reform Treaty does very substantially
resemble the Constitutional Treaty. The basic substantive lines
are exactly the same as they were in the Constitutional Treaty.
There have been a few bits and pieces in addition to that negotiated,
but they are more about process than about substance. It is a
debate sometimes in political circles as to whether or not in
effect moving from unanimous voting to qualified majority voting—as
it is called in the press "losing the veto"—effectively
changes the substance of competence, because it creates a different
political dynamic about decision-making, but in the area of criminal
justice co-operation that is substantially tempered by the existence
of the emergency brakes, which we will come on to discuss in the
future.
Q24 Chairman:
What about the scope of the subject matter, which I think I was
primarily directing my question to, because clearly the language
is considerably more specific in certain areas?
Professor Shaw: I think that is a huge advantage.
For example, in relation to criminal procedure there is a specific
reference to cross-border matters, and I think that will come
as a relief to Member States who have been negotiating the suspects'
rights Framework decision and have been trying to argue—and
I am not saying whether I agree with this argument or not—that
across the board the question of minimum suspects' rights is an
ECHR matter, it is not primarily an EU matter, and that any EU
measures should be basically limited to cross-border issues, that
is matters where there has been an EAW for example, or in the
future possibly the Evidence Warrant, has been used. As you say,
it is more specific, so what you will get is rather than these
rather airy references on a slightly uncertain basis to Article
31 plus Article 34(2)(c) as being the legal basis, you will be
able to point to a specific provision of what will be the Treaty
on the Functioning of the European Union so you will be able to
identify whether it concerns mutual admissibility of evidence,
the rights of individuals, the rights of victims, and so on and
so forth, and you will be able to clarify that. There is a provision
also in Article 69f relating to the issues that were raised in
the Environmental Crimes and the Ship-source pollution
cases as to whether or not there is a competence relating to the
adoption of criminal sanctions in areas where the EU has otherwise
adopted harmonisation measures, which has been the subject of
at least one or two reports in either this Committee or one of
its sister Committees, and that certainly clarifies the issue.
Q25 Chairman:
That is only in relation to areas of particularly serious crime
with a cross-border dimension, is it?
Professor Shaw: No, that is in relation to the
areas where the EU has otherwise engaged in harmonisation activities
where it would be possible to attach a criminal sanction. The
environment is a particular area where that might apply but there
are also areas such as customs and so on and so forth where there
may be other possibilities for introducing such criminal sanctions.
In relation to the harmonisation of substantive criminal law there
is this list of 12 different types of areas of crime—terrorism,
trafficking in human beings and so on and so forth. Obviously
the same problem arises with that list which is that there are
not common definitions across the 27 Member States as to what
these terms mean, so there remain some uncertainties there. There
may be some areas where there is agreement about having harmonisation
measures in that area where there is still some uncertainty. There
is no uniform, unified, universal concept of computer crime or
indeed organised crime. Those are the sorts of problems at the
margins that may still occur.
Q26 Chairman:
You mentioned a moment ago the Environmental Pollution
case and the Ship Pollution case where the Community was
held by the Court to have jurisdiction under the Community Treaty
to require criminal offences to exist under national law and it
was not a matter which had to be dealt with under the Third Pillar.
Is that jurisdiction—the ship pollution and the environmental
pollution jurisdiction—now subsumed within this new Article
69f(2) or does it continue to exist under the other provisions
of the Treaty?
Professor Shaw: That is an interesting question
but I assume that it is intended to be subsumed and encompassed
by Article 69(f)(2) but I suppose there may be circumstances in
the future where it might be argued that there is a case for doing
that. I think the intention is to subsume and encompass and replace
that implicit jurisdiction with an explicit jurisdiction which
makes it absolutely clear that the same legislative procedure
applies in relation to the adoption of criminal sanctions as would
apply to the underlying harmonisation measures, so if it was the
general legislative procedure, it would be the general legislative
procedure, and if it was the special legislative procedure, then
it would be that. Whether the UK can opt out of such measures
is not explicit as far as I can see. It is hard to see how the
UK can opt out of that since it could not opt out from the underlying
harmonisation measures.
Q27 Chairman:
If it is subsumed within Article 69f(2) then it comes within Title
IV and we do have a right not to opt in, but if it remains freestanding
under the other provisions then we are bound. The difference is
of course that 69f(2) now entitles the Community, or the Union
as it will be, to establish minimum rules with regard not only
to the definition of criminal offences but also sanctions which
the European Court has just ruled out in the Ship Pollution
case.
Professor Shaw: Yes and it is also explicitly
not just confined to environmental matters. I guess that point
is going to be litigated. I cannot imagine that point will not
be litigated in the next ten years or so; I am sure it will be.
Q28 Lord Lester of Herne Hill:
I have been very preoccupied in cases involving the European Court
of Human Rights with the weakness of a common law system in a
Council of Europe with 27 Member States of which only four are
common law systems and where therefore there are only four common
law judges, as it were. When one comes to the area of criminal
justice, especially the procedural aspects of it, we are in much
the same position within the European Union as only Ireland, Cyprus,
Malta and ourselves. I sound like a narrow-minded nationalist
in asking this question and I do not mean to be at all, but is
it not very important that we should take full advantage of the
opt-out in this area in order to preserve the integrity of the
common law system where it is necessary to do so?
Professor Shaw: Or indeed consult with Scottish
partners as to whether or not the particular mixed jurisdiction
system in Scotland ought to be preserved.
Q29 Lord Lester of Herne Hill:
I apologise for not having thought of that!
Professor Shaw: That is all right. I am not
a Scots lawyer, I just happen to be a resident in Scotland at
the present time. That is a matter of case-by-case judgment. What
has happened is that a judgment has been made in a political context
to shift from viewing the emergency brake as sufficient in 2004,
to viewing an opt-in process as essential in 2007, in order presumably,
as you say, to preserve that, and one also hopes in order to make
it possible to engage in the appropriate type of balance between
the different criminal procedures that exist within the boundaries
of the United Kingdom. Whether it has in fact been done in order
to enhance the claim that this is a different treaty to the Constitutional
Treaty, and therefore should not be susceptible to referendum,
is an alternative view of that particular decision. I guess that
you would probably prefer to think that it was there because the
UK had certain specific national interests in that particular
area of the law which it needed to protect through an opt-in system.
Q30 Lord Lester of Herne Hill:
I am not so interested in my question in the motives behind it
as in the effects of what we have. Speaking for myself, because
I am not a Cartesian but a typical English pragmatist, the more
examples one can have of how this works, like the criminal justice
one, I think the easier it is to see whether the Reform Treaty
is going to strike a fair balance between national interests and
European interests, as it were. That is why I keep asking this
tedious question about examples because I think with examples
we can then explain to ourselves and to the wider world what this
means in practice. That seems to me quite a good example.
Professor Shaw: You have to bear in mind that
I am not a criminal lawyer, I am an EU lawyer—
Q31 Lord Lester of Herne Hill:
Nor am I so you are all right!
Professor Shaw: But you are a human rights lawyer
of great distinction and I am not a human rights lawyer either.
I am an EU lawyer so I am looking at it from the point of view
of how the system works, or may work in the future, so my grasp
upon examples drawn from the interstices of criminal procedure
is relatively weak. However, if you look at some of the examples
of things that are currently under review such as the Evidence
Warrant, such as the rights of the victim—
Q32 Lord Lester of Herne Hill:
European supervision orders.
Professor Shaw: Yes, supervision orders. You
have got the pre-trial detention measure and you have also got
the rights of suspects in criminal trials. These are obviously
cases where the UK should look at it on a case-by-case basis,
where it needs to balance the integrity of the system that it
is looking at versus whether not participating in the pre-trial
detention measure may result in more UK citizens being detained
abroad for longer and more overcrowding of British prisons with
non-national prisoners, than is in the public interest. It has
to balance those two things against each other and it has to try
to work out whether or not the different conceptions of probation
or supervision can in any way be melded together on the basis
of a mutual recognition decision. I am sure that criminal lawyers
will point out specific points of clear friction between the systems
which makes it more difficult to make it work but, on the other
hand it is not only about that, it is also about whether or not
a country does feel fully engaged in a mutual recognition process.
The Court tends to airily assume that mutual recognition and mutual
trust are actually operating rather than starting that we are
in a painful process of moving towards that situation. I think
that it is a separate question to the question as to whether there
is unassailable friction between the different types of systems
that exist.
Q33 Lord Burnett:
I noticed your speculation about we have opted in and opted out
and there could be a cynical, or otherwise, view that that was
just to construct a difference between the Constitution and this
Treaty, but is it worth, Lord Chairman, asking the witness whether
she is prepared to tell us in her view whether we are stronger
if we opt in than if we opt out and which is the better position
for us to be in?
Professor Shaw: I shall never be in the position
of taking the decision, thank goodness.
Chairman: Can we just clarify, were you
asking whether an opt-in is better than an opt-out?
Q34 Lord Burnett:
Yes, that is basically it.
Professor Shaw: In looking at it objectively,
I am not a huge fan of having more and more variegated, concentric,
overlapping, underlapping circles of Member States involved in
different measures. It does not seem to me that that is necessarily
in the interests of transparency and maximum public understanding
and participation in the process of the European Union. However,
one has to recognise that there is a fair degree of this already
going on with Schengen and the world as we know it has not come
to an end; we just have to organise our airports in order to make
it happen. The major disadvantage of opting out obviously is not
participating in the shaping of the measure, and if the shaping
of the measure impacts in a major way upon the efficacy of either
detection procedures or intelligence processes in relation to
the commission of serious crime, then it may well not be in the
UK's interests to be opting out both because it is not eventually
involved in the systems in question but also because it was not
involved in the decision-making process. This is not a system
where the UK is basically allowed to come to the table and help
design a measure and then say, "Okay chaps, you carry on
on your own. We have got this type of thing but we do not want
to participate but we want to be in some way connected with it
or we possibly want to agree a separate international treaty to
participate in it in some way." You are in or you are out.
Q35 Chairman:
As we have seen with the several occasions where we have not opted
in in relation to civil proposals, you do get the opportunity
to participate in negotiations with a view to arriving at some
final draft which you can opt in to. It is a pragmatic question
whether that is a good way of proceeding.
Professor Shaw: But I do not think the UK has
a right to be allowed to do that.
Baroness O'Cathain: Why not?
Q36 Chairman:
I am not sure about that, I think it may do under Title IV. Perhaps
we do not have a right; we can check that.
Professor Shaw: What you are probably talking
about is a gentlemen's agreement to allow the UK to participate
and maybe people also felt that there was some sort of gentlemen's
agreement in relation to things like the Frontex Regulation and
the Passport Regulation, I do not know, that may be true, but
there may be limitations to the formal processes.
Q37 Chairman:
I thought that Article 4 of the Protocol on Title IV actually
says at any time after the adoption of a measure by the Council
pursuant to Title IV you can notify the intention that you wish
to accept.
Professor Shaw: Yes, but that is not necessarily
on the basis of having participated in the negotiating process.
That is on the basis of "take it or leave it".
Q38 Chairman:
Can we perhaps go back to the question you touched on of emergency
brakes. We have got in general a right not to opt in and then
we also see references to an emergency brake which is available
to any country. Can you help us, firstly, are there limitations
on the emergency brake system and, secondly, is it any use to
the UK if the UK has chosen to opt in to a measure in the first
place? Can it then apply an emergency brake?
Professor Shaw: I do not see why it cannot.
I do not see that there is any reason why the UK would be in any
different position to any other Member State. There is nothing
I can see in the legal documentation that indicates that the UK
would not be in that position. That does not provide a total security
of outcome for the UK. You have to go back to thinking about what
an emergency brake is. It is almost like "back to the future"
in the sense of these emergency brakes were used extensively throughout
the early part of the European Community's history from the time
of the Luxembourg Accords onwards until the Single European Act.
It was not a legal change that broke it. It was, as much as anything,
a political change and a self-denying ordinance on the part of
the Member States in the operation of the Council of Ministers
not to insist that decision-making that was legally supposed to
be by qualified majority voting should be taken by consensus.
Consequently we are into this scenario of not knowing exactly
how it is going to work. I do not see that there is going to be
in any sense a ruling out of the UK and that just because the
UK has decided to participate in this particular measure, it is
somehow subject to a duty of good faith and a duty of participation
that does not apply to any other Member State.
Q39 Chairman:
I suppose you could get situations where after opting in the measure
actually changed in radical senses which became objectionable?
Professor Shaw: Presumably behind the surface
of the procedures, if the UK opts in on good faith on one basis
and it gets to a certain point in the procedure, then I suspect
that the other Member States will not object to the UK opting
out at that point, as opposed to pulling the emergency brake,
but this type of thing is not precisely revealed in the text that
we can see before us. Presumably there will be people in the Council
of Ministers' Secretariat with an awfully long memory, stretching
back even before the Single European Act, who can tell us how
things worked under the Luxembourg Accords and suggest how it
might be applied in the future. The Luxembourg Accords were never
operated in conjunction with a opt-out so, whatever else we can
learn from it, it cannot tell us precisely the question you are
asking, which is the interface between that and an opt-out. There
will have to be either formal or informal procedures behind the
face of the opt-out in order for that to operate in practice.
You would have thought that there would be steps of engagement
at the point at which, as you say, if the measure changes dramatically
so that then the UK can say, "Hang on a minute, we did not
opt into that measure, we opted in to something else." It
is not just a question of applying the emergency brake, this is
that we are almost back to zero with the legislative process and
therefore we should have that opportunity to opt out.
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