Examination of Witnesses (Questions 40
- 59)
WEDNESDAY 14 NOVEMBER 2007
Professor Jo Shaw
Q40 Chairman:
The emergency brake would be the only formal right you would have
at that stage.
Professor Shaw: One is making it up as one goes
along to some extent, but you could imagine that the emergency
brake is the thing that is pulled almost at the point of decision.
I cannot imagine that the UK would be so hamstrung in its negotiation
to let itself get to that point with a measure that has changed
in real essence from the beginning. These things will be subject
to a whole series of stages of negotiation.
Q41 Chairman:
Can you help us as to your perception of the utilisation of the
emergency brake. Is it going to be something which is on that
basis very rare and, if so, is one possible consequence, which
is enhanced co-operation, likely also to be something that is
very rare?
Professor Shaw: Yes, unless we are talking about
a massive increase in the rate of decision-making --- and in fact
the rate of decision-making in the third pillar has dropped off
quite considerably. It accelerated after 9/11 up to about 2004
and then it has dropped off really dramatically since then as
the lower cherries were picked off the tree at an early stage
and now we are trying to reach for some of the higher cherries,
which present some particularly intractable questions when you
start to think about harmonising them. You cannot imagine that
there will be a huge number of legislative processes in any given
year that would reach that so by definition I think we would be
talking about a rare procedure. If you combine that with the fact
that I do not suppose the heads of state and government want to
get involved in discussing this level of detail particularly regularly,
so the pressure will be on to solve these things somewhere other
than in a summit where they much prefer to concentrate on the
broader picture rather than on these sorts of questions. I absolutely
do not think this is a symbolic provision but I certainly do not
think anybody imagines it is going to be in even annual use. I
can imagine it will be fairly rare. There have been some problematic
changes of government, let us put it that way, in some of the
Member States over the years which might lead to them applying
the emergency brake. That does not necessarily mean they would
not lose political capital by doing that—I think they would
lose political capital—but I do not see the UK and Ireland
applying it because they would not want to lose the political
capital. I think they are far too sophisticated in their European
negotiations to have to do that. Without pointing the finger too
specifically, you can imagine a number of Member States who might
find themselves in that situation because of changes of government
which bring perhaps clumsy operators to the table.
Q42 Chairman:
Shall we move on and the next question which we asked you to consider
related to Article 69h and Eurojust. Can you help us as to how
you think that may develop and operate under the new proposals?
Professor Shaw: It is by no means a bad thing
to have it a little bit more formally constitutionalised than
it is at present but it does not strike me that the drivers of
change in relation to the role of Eurojust will be structured
within the context of the Treaty reform process. I think those
drivers of change are present anyway in the negotiations in the
way in which practical judicial co-operation is happening. I understand
that the Committee probably already knows about a recent Communication
from the Commission on reform of Eurojust and I honestly think
that the drivers of change are outside the Treaty reform process.
I do not think there is much more I could helpfully say about
it.
Q43 Chairman:
Basically it does not include a role in respect of the conduct
of litigation. It includes a role in relation to the initiation
of criminal investigations and proposals to national criminal
prosecuting authorities and investigating authorities.
Professor Shaw: There is an awful lot of interesting
things one could say about Eurojust but I do not think that the
Reform Treaty makes it more likely that it is going to be reformed
than otherwise.
Q44 Chairman:
What about the next provision which is for a European Public Prosecutor
to combat crimes affecting the financial interests of the Union,
building upon Eurojust?
Professor Shaw: This is a very, very difficult
provision. It has been around as a proposal for a while since
the negotiations of the Treaty of Nice. It is clearly something
that the Commission feels quite strongly about in relation to
wanting to get a proposal onto the table and there are some powerful
Member States—France and Germany in particular—who
expressed their support for the idea, and doubtless insisted on
its inclusion. It is interesting to see they have included an
accelerator clause, which has been included here to deem the consent
to enhanced co-operation to be present in circumstances where
there is a lack of unanimity in the Council. If there are nine
Member States who want to establish a European Public Prosecutor,
and with that accelerator in place, then it does not seem inconceivable
that such an office may be established for that group of nine
or more Member States, I assume not including the United Kingdom.
Q45 Chairman:
How would that work? The Public Prosecutor would not have jurisdiction
to prosecute in the United Kingdom but presumably he would have
the jurisdiction to prosecute in one of the nine Member States,
including jurisdiction to prosecute a United Kingdom citizen,
and then am I right that the European Arrest Warrant could be
used to take the United Kingdom citizen from this country to the
foreign state to be prosecuted by the European Public Prosecutor?
Professor Shaw: Is there anything more abhorrent
in that possibility given that it happens anyway?
Q46 Chairman:
I am not suggesting it is abhorrent; I am just analysing how it
would work.
Professor Shaw: It would indeed work like that,
and assuming that the Evidence Warrant comes in in due course,
recourse will be had to other mechanisms in order to facilitate
a cross-border prosecution process.
Q47 Lord Lester of Herne Hill:
Would this include, say, someone who is corrupt and is affecting
the financial interests of the Union through serious corruption
involving the Commission for example or some other EU institution?
Could this person be subject to prosecution by a European Public
Prosecutor under Article 69i, if it came to pass?
Professor Shaw: At the present time they could
only be prosecuted under one of the national criminal systems
because there is no equivalent to a federal criminal jurisdiction
in the EU, as I am sure you know, so for someone whose criminal
acts involve crimes against the European Union—and there
are manifold measures in that respect trying to establish a set
of common standards across the Member States and trying to raise
standards in some cases where there were problems—the process
would take place entirely within one of the national systems at
the moment, with recourse to mutual legal assistance of one type
of another, whether under EU law or general public international
law, to bring the relevant aspects of the case to bear.
Q48 Lord Lester of Herne Hill:
Would this new office make it more probable that one would move
in the direction of more effective sanctions in that kind of case?
Professor Shaw: That is undoubtedly the motivation
of the Commission, that it believes that there is a problem that
could be solved in that way. Some people have suggested that because
there have been considerable developments—and as I say this
is an idea that dates from the late 1990s—that many of the
micro steps (I suppose with the Arrest Warrant being a bit of
a macro step) have removed some of the problems that this was
supposed to be the solution to. So you may say that this is a
solution now looking for problems that do not exist as much. I
am not qualified to judge really whether that is the case but
if you look at the European criminal process world as it is in
2007, if you will, it is not the same as it was in 1999, so you
would want to have a thorough impact assessment to judge whether
or not this was truly going to make a difference. The problem
of opting out is not necessarily that it would make enforcement
less effective either against British citizens committing crimes
that impact in other Member States or foreign nationals committing
crimes in the UK. I have no doubt that the UK criminal process
can deal with those matters and that UK criminal law sets some
standards in relation to conduct that will catch most of the problematic
behaviours. However, the problem might be that somehow this was
seen as a signal or a symbol that the UK did not take it as seriously
because it was not prepared to participate in the European Public
Prosecutor. I do not think that would be the reality but it might
be treated as a symbol, in which case it could be used politically
in order to make arguments that I think could be dangerous for
the EU overall.
Q49 Baroness O'Cathain:
Is this solely against financial matters, because that is the
way it reads? It encompasses offences against the Union's financial
interests so it would not be anything else, it would not be anything
to do with terrorism or any of these things?
Professor Shaw: You mean somebody blowing up
the Berlaymont?
Q50 Baroness O'Cathain:
I suppose that would be against the financial interests of the
Union.
Professor Shaw: But I imagine that the Belgians
would probably do the business and so on and so forth. For a lot
of the terrorism offences there would be extra-territorial jurisdiction
in many of the Member States anyway.
Chairman: There is the provision under
paragraph 4 for the European Council to adopt a decision amending
paragraph 1 to extend the powers of the European Public Prosecutor's
office to include serious crime having a cross-border dimension.
Q51 Baroness O'Cathain:
I see.
Professor Shaw: That is what you would regard
as an accelerator clause.
Chairman: It would have to be done unanimously.
Q52 Lord Bowness:
You have touched on my question and presumably paragraph 4 could
extend his jurisdiction beyond the nine Members; is that right?
Professor Shaw: No, it would be a substantive
increase in his jurisdiction to cover crimes other than crimes
against the financial interests of the Community. You could imagine
perhaps some fit between that and the list of crimes in Article
69f, paragraph 1, the areas of particularly serious crime with
a cross-border dimension where there is already an explicit power
to harmonise the substantive elements of those crimes, and you
could imagine there might be a fit between paragraph 1 of 69f
and paragraph 4 of 69i.
Q53 Baroness O'Cathain:
So would the European Public Prosecutor's Office be in charge
of those as well—terrorism, trafficking of human beings,
sexual exploitation, et cetera?
Professor Shaw: Presumably it would not if it
were initially set up—and it does say at the same time or
subsequently the European Council can decide unanimously to extend
it also to those crimes, but that is the European Council and
I presume that is the European Council of all 27 Member States,
that is, not just the ones who are participating in the Public
Prosecutor's Office, because otherwise that would be delegating
to nine Member States, or perhaps a few more, the power to amend
the Treaties and that cannot be right. That is obviously a simplified
amendment procedure for the Treaties but it would be all 27 Member
States, including those who did not want a Public Prosecutor's
Office or did not want to participate in a Public Prosecutor's
Office for a variety of reasons.
Q54 Chairman:
Can we move on because time is doing so. You touched to some extent
on the question of border checks, asylum and immigration. Can
you help us as to any further aspects of the changes that would
be worked in that respect and whether there is any extension of
the competence of the Union?
Professor Shaw: I think what you find with the
provisions on border checks, asylum and immigration, as it is
now titled in Chapter II, is some attempt to import some of the
language of the Tampere programme from 1999 which, as I am sure
you know, set the initial frame for development of the post-Amsterdam
Title IV. So you see some of the language about fair treatment
of third country nationals, which is a good example. That is language
that is not in the existing Title IV in terms of a broad objective
for the European Union. In terms of references to a uniform status
of asylum and uniform status of subsidiary protection, those are
specifications of competence which came in the Tampere programme
and have been de facto part of the structure of decision-making,
if you will, and the objectives that the Member States have been
working towards, in terms of asylum. So that is one of the main
changes that has occurred. The other change I would draw your
attention to is this whereas under the existing Treaties there
is a provision in the citizenship provisions saying that the EU
citizenship provisions cannot be used for measures in relation
to passports and identity cards, so consequently that has been
done in the context of external frontiers, but it has not had
an explicit competence, which is very unsatisfactory, and I would
be the first to say that the security standards in passports regulation
rests on a rather slim legal base. I think from a legal point
of view it is helpful that in wherever it is—
Q55 Chairman:
You have got that put on a proper legal base.
Professor Shaw: Yes Article 69(3): "If
action by the Union should prove necessary to facilitate the exercise
of the right referred to in ... "—that is the right
of free movement basically—"and if the Treaties have
not provided the necessary powers ... " there are special
legislative procedures—that means unanimously adopted provisions—"concerning
passports, identity cards and so on." So I think that is
a proper legal basis which is important. Other than that I do
not see any major changes. Perhaps I am being naive but, as with
the ones in the Third Pillar, there has not been any legal basis
litigation so far for us really to peer into our navels and scratch
our heads about the precise scope of the powers. The Amsterdam
provisions were not particularly well drafted and were not particularly
clearly drafted and these are considerably clearer. One other
thing is different, because there were still residual provisions
under Title IV that were not subject to qualified majority voting,
specifically relating to legal migration that is, the regulation
of regular migration. These will now be essentially subject to
qualified majority voting, subject to a saving provision that
was added in the Constitutional Treaty; paragraph 5 of Article
69b, states that this does not affect the right of the Member
States to determine the volumes of admissions of third country
nationals. That was included at the behest of Germany in the Constitutional
Treaty and it has been carried across into the Reform Treaty unchanged.
Q56 Chairman:
If I can at that point ask you about 69c where it says: "The
policies of the Union set out in this Chapter"—that
is the chapter dealing with border checks, asylum and immigration—"and
their implementation shall be governed by the principle of solidarity
and fair sharing of responsibility, including financial implications
... " I do not know whether that was put in to please the
Government of Poland or what precisely it had in mind and perhaps
you can give us—
Professor Shaw: Possibly the Government of Malta
actually rather than the Government of Poland.
Q57 Chairman:
The idea no doubt is that everyone takes his or her fair share
of the load.
Professor Shaw: Indeed, and there are more specific
measures as well about sudden influxes of nationals of third countries
in paragraph 3. You should not look at Article 69c in isolation.
You could say that one of the changes from the Constitutional
Treaty to the Reform Treaty has been a taking out of most of the
symbolism and so on and so forth. But the solidarity provisions,
which actually pervade right through the whole Treaty—they
are there in the external action, they are there in the Treaty
on the European Union, they are in lots of different places that
I could bore you by pointing you to them. It was very much a leitmotif
of the Constitutional Treaty. Jörg Monar, who is much more
of a distinguished expert in these areas than I am, commented
about the Constitutional Treaty—and I wrote this down—that
the inclusion of the solidarity principle no less than four times
in one guise or another in this Title here implied the inclusion
of what he called "an important new integration principle
for the EU". So Monar obviously thought these provisions
were quite important.
Q58 Chairman:
This is an aspiration though really, is it not?
Professor Shaw: I would say they are aspirational.
They obviously cannot have any direct teeth.
Q59 Chairman:
They are aspirations of the legislators.
Professor Shaw: Yes.
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