Examination of Witnesses (Questions 80
- 99)
WEDNESDAY 21 NOVEMBER 2007
Mr Tony Bunyan and Professor Steve Peers
Q80 Chairman:
Good afternoon and thank you very much for coming to give evidence
to us, Professor Peers and Mr Bunyan. Perhaps I could ask you
whether you would first of all like to make an opening statement.
Perhaps, for the record and for the benefit of the Committee,
you could tell us very briefly about the organisation Statewatch,
or perhaps you would prefer us to go straight to the questions,
having told us about Statewatch.
Mr Bunyan: I think that we will go straight
to questions.
Q81 Chairman:
For the record, perhaps you could just tell us something about
Statewatch.
Mr Bunyan: Statewatch was founded in 1991 and
so, for almost 17 years now, we have been working on justice,
home affairs and civil liberties in the European Union. We have
come many times to this and other committees in this and the other
House to give evidence. We monitor as best we can all the measures
that are going through the European Union on justice and home
affairs and, on some areas, we will pay more attention and produce
analysis in depth. For example, on the Reform Treaty itself, way
back, we started an observatory on the Constitution, with all
the documents and, from early this summer, we again picked up
the cudgels, took up the Reform Treaty, and Steve Peers did very
good work. It meant that by 5 August we got online the actual
text of the transposed mandate into the treaties—which was
some two months before the Council managed to do it themselves.
The subject that we are discussing today is therefore of great
interest to us.
Q82 Chairman:
You will know that we are concerned with Law and Institutions
in this Sub-Committee and our report is going into the report
which the Select Committee is producing on the Reform Treaty.
The Chairman of the Select Committee has described it as an analysis
of the impact that the Treaty will have on the United Kingdom,
pointing out the changes that it will make to the existing treaties.
Within our particular area of interest to begin with—freedom,
security and justice—can you perhaps tell the Committee
whether under the existing treaties there are any serious problems
for action within that area?
Mr Bunyan: The thing that I would highlight
is the role of decision-making. As we all know, up until now,
and indeed until recently under immigration and asylum, the European
Parliament was only consulted. Obviously, the big move in the
new Treaty is that the Parliament primarily has co-decision, although
there are still some areas of consultation preserved and the funny
concept of "consent" coming in. However, the key issue
is clearly the area of co-decision. A comment that one would make
in relation to co-decision is that, when the European Parliament
got the power over immigration and asylum, which it did last year,
some nine measures have gone through—or eight have gone
through and one is going through. On those eight measures, even
though they had co-decision and equal co-decision making with
the Council, they all went through by what one could call first
reading agreements, through secret trilogue meetings—which
did not auger well for the future. If the European Parliament
is to have co-decision, there may be occasions on highly technical
issues when this may be a proper process, but not on what one
might call more controversial issues like the Schengen Information
System II, which may be technical but it is also quite an important
political issue. The one exception in those nine measures is the
Visa Information System, on which Baroness Ludford is the rapporteur.
That has taken a very long time and so, in a sense, the secret
discussions have not worked in this particular case. Indeed, just
before I left this morning I noticed in a letter that the Civil
Liberties Committee of the European Parliament has agreed an amendment
to the visa draft directive, to say that the fingerprinting of
children should not be from the age of five but from the age of
12. This of course has to go from the committee to the plenary
at the end of the line, but this is a very important issue to
which we drew attention last year. The Council was discussing
in a technical committee the question of at what age it was possible
to fingerprint a child, rather than the political/moral question.
I think it is very hopeful that this committee has decided to
go for a higher, more sensible age, closer to the age of 14 which
the Eurodac system allows for the fingerprinting of children.
The debate that might be around, therefore, is the extent to which
the European Parliament will fully use its power for co-decision,
when it also has co-decision over police and judicial matters.
Q83 Lord Rosser:
Co-decision means that they and the Council have to seek to agree
that, at the end of the day, if there is a disagreement, the two
have to try to come together and reach an accord. That is what
it is likely to force to happen.
Mr Bunyan: Yes.
Q84 Lord Rosser:
When you said, "Up to now they appear to have had discussions
in secret"—I think that is what you indicated—is
that discussions amongst themselves as members of the European
Parliament or discussions with outside bodies or people, or what
are we talking about?
Mr Bunyan: No, this is under a formal agreement
which was signed last year. This is now a formal agreement between
the Council and the European Parliament to allow for the speediest
implementation of all measures. This is right across everything.
Indeed, when they have reached agreement—whether it is in
these secret meetings or whether it is at first-stage committee
reading—then a letter will go between the Council and the
chair of the committee in order, as it were, to cement that agreement.
Our concern is twofold. One is that, when there are discussions
of this kind, the documents which are being discussed—as
in the case of the whole VIS package, in which there are four
measures—have officially all been secret. We do not know
what has been discussed. We have managed to get hold of a number
of these documents to make sure that people know something of
what is going on. However, it means that it is not just secret
in the sense of secret meetings: it is secret in the sense that
nobody outside knows what is going on. Citizens and parliaments
do not know what is going on. I think that the second aspect is
in relationship to the standing of the European Parliament. Over
the many years that I have been going there, the European Parliament
has been saying, "When we've got the power of co-decision,
particularly on the sensitive issue of immigration and asylum,
we will make sure that we have a proper, full debate. We will
squeeze as much as we can out of the Council for individuals'
rights". It has not done them any great credit that, on eight
of these nine measures, they have gone for this secretive approach.
It means that we cannot see a committee voting on meaningful amendments,
as you can with the plenary voting. In other words, we lose what
is the visible side of the democratic process. As I said earlier,
there are certainly some measures that are highly technical, which
one can understand are agreed and pushed through, unless a matter
of critical importance comes up. This is one's concern: it is
both the secrecy and the lack of access to the information on
what is going on, and it does not do the standing of the parliament
any good. In my view, if the parliament were to proceed down the
same road on police and judicial co-operation, this would really
lower its standing in the eyes of people outside of the parliament
itself.
Q85 Lord Lester of Herne Hill:
The trouble with being on a committee like this is that one is
hesitant to ask questions which expose your own complete ignorance—which
I am now about to do! Can you explain what happens with co-decision
vis-a"-vis the European Parliament after the secret negotiations
take place? Is there some kind of reporting back which goes to
the European Parliament and enables them then to discuss the agreement
that has been reached, or is it simply in a private room, negotiated,
and that is that? One of the reasons I am asking the question
is not just for the reason which you have given just now but,
as you probably know, within the Council of Europe they are drafting
a convention on access to official information, which at the moment
has a big exception for legislatures, which I imagine would include
the European Parliament. Can you tell us how transparent the European
parliamentary procedure is when the co-decision process is taking
place? I should know the answer but I do not.
Mr Bunyan: In this instance what would normally
happen would be that the parliamentary lead rapporteur, plus other
rapporteurs from other political parties, would go into negotiation.
The rapporteur is the formal negotiator with the Council; the
Commission sits in on the meetings. In some cases, though, you
will find that the main rapporteur will kick the other rapporteurs
from the other political parties out, if things take a long time.
Equally, in these meetings the Council will bring in the "heavyweights".
If things are getting difficult, it will bring in the Perm Rep
in from the Presidency; it will bring in the Commissioner. That
is the answer to who takes part in these meetings. Yes, of course
the rapporteurs of other parties will usually know what is going
on; but there can be many meetings and many different amendments.
At the end of the day, it does go before the committee. The committee
is given a text.
Q86 Lord Lester of Herne Hill:
Before the decision is finally reached?
Mr Bunyan: If it is quick, the committee might
express some point of view on a draft. However, if it is taking
a long time, the difficulty is that the committee as a whole is
unlikely to have followed all the changes to it, and it will be
almost set in stone by the time the rapporteur brings it back
from these negotiations. It would therefore be quite difficult,
unless there is a substantive point, to overturn. Indeed, I suppose
that the rapporteur would have to be very mindful in their negotiation.
I would have to say this: that if they can see a big problem coming
up in what they are negotiating, they would probably make some
concession on that account—if they thought that one or more
political group was going to object to something very strongly.
There is some informal give and take but, in terms of the actual
voting on amendments in committee, in a sense that disappears
in this process. In other words, there being a draft report; people
needing to put in whole sets of amendments; and there being votes
in committee. That tends to disappear almost completely under
this.
Professor Peers: It happens at an early stage,
as the parliament is beginning to form its position. At some point
either the committee has voted on a text already, which becomes
a kind of negotiating position, or usually halfway through, when
there is a draft report and some draft amendments—on the
basis of that having assessed more or less what element of support
there is for the draft report and the draft amendments—that
becomes a sort of de facto negotiating position, or some
element of it becomes a sort of negotiating position with the
Council. It is therefore very difficult for an outsider to work
out what exactly the negotiating position is if they have not,
as a committee, voted on a report—which they sometimes do
and, as I say, they sometimes do not. It is a much more opaque
process if they negotiate on the basis of a draft report than
on the basis of something which the committee has already voted
on. To give you an example, yesterday, dealing with the Rome regulation
on the conflict of law in contract, the Legal Affairs Committee
voted on a report. It seems to be the product of a deal with the
Council. I have not yet been able to confirm that. Even when a
deal has been done, therefore, the text is available but it is
not actually clear whether or not it is a deal yet. Perhaps in
the next week or so it will be clear if that is a deal with the
Council and if the Council is willing to approve it. The text
itself only emerged in the last week or so of that apparent deal
with the Council. It is a very opaque process, therefore. That
was another example of where the parliament was negotiating on
the basis of a draft committee report, with a series of draft
amendments. An outsider would have no way of knowing what their
negotiating position was, and even less way of knowing normally
what the Council's negotiating position is. Sometimes the Council
adopts a general approach, which tends to be published on the
Council's register as the basis for the negotiating position but
sometimes it does not and it is negotiating on the basis of some
vague draft text, which is never publicly available or formalised
in any way. Sometimes, therefore, the process is a little easier
to follow and sometimes it is absolutely impossible, even to a
specialist. Even to someone getting the published documents from
the Council via Statewatch, it can be impossible to know what
stage the process is at and how much negotiation is going on—or
sometimes even whether negotiation is going on at all, never mind
what stage the negotiations are at and what texts are under discussion.
If you were to try to apply this to the British parliamentary
process, it would be as if, every time a bill was submitted to
Parliament, a small number of people from the House of Commons
and the House of Lords got together in a private room to negotiate
the texts, then presented a final bill to both Houses at the end
of that negotiation, having been completely non-transparent in
the negotiation, as a fait accompli that they had to vote
on, otherwise there would be no legislation. That would obviously
be considered unacceptable and that is basically the problem which
we have with the co-decision process, particularly at the first
reading level.
Q87 Lord Lester of Herne Hill:
What is the need for so much secrecy and opaqueness, according
to the official line? Why cannot there be some kind of public
disclosure of the process? What do the officials say about that?
Mr Bunyan: They did produce a report. This is
what is disturbing. Mr Leinen produced a report earlier this year
on how co-decision was going. There was general satisfaction,
because now some 66% of measures going through the European Parliament
are going through on this first reading procedure. Some may well
be technical. There was a little note that there was "a bit
of unhappiness", but it was a long report and I was reading
through it, hoping to find some cognition that this was possibly
a problem, but it really was not in that report. I think that
it came out in April. It is on our website and I can certainly
send you a copy of that report. However, it was a bit disturbing
to see that the parliament's own assessment of how this is working
seemed to be very uncritical of what the effect was.
Q88 Chairman:
Can we press on to the opt-ins? The UK has its general opt-in
so far as FSJ is concerned under the protocol on the position
of the UK and Ireland—the Title IV Protocol—and there
is a further opt-in provided by the protocol on the Schengen acquis.
How will the position under these protocols be different from
that which exists at the present time?
Professor Peers: The Title IV Protocol will
change in two ways. First of all and most obviously, to be expanded
so that it will also cover policing and criminal law as well as
immigration, asylum and civil law, which it does at the moment.
However, a more complex amendment was added during the process
of negotiating the Reform Treaty to deal with the specific situation
when the UK or Ireland is faced with a proposal to amend legislation
which we have already opted in to. In that case, it is possible
that if we do not opt in we will be urged to opt in, and if we
do not respond to that urge from the Council we will, in effect,
be cut out of the existing legislation. Equally within the Schengen
Protocol, there is a new clause which is more or less to the same
effect, although the details are different. In that case, though,
as it stands right now, we are not able to opt out of measures
built on a measure we have already opted in to. That would therefore
be a new possibility for us as regards Schengen but, again, it
would be subject to a possible sanction if we do not choose to
opt in to these further measures which amend measures we have
already opted in to. For the first time there is, in respect of
Title IV, a possibility of pressure that could be placed on the
UK to opt in to something, whereas at the moment there is not
any mechanism to place pressure on us to opt in to something,
and in practice no pressure has ever really been applied—as
far as I can tell, in eight years of watching this process very
closely. That would be a significant change, I think. Both would
be significant changes.
Q89 Chairman:
What about the situation that arises out of ECJ Cases C-77/05
and C-137/05, which were brought by the United Kingdom against
the Council and the disagreement about which protocol applies
in given circumstances?
Professor Peers: There is nothing in the Reform
Treaty or the Treaty of Lisbon which clarifies which protocol
applies. I had thought at one point that the UK might be intending
to negotiate on this issue but, as it turned out, they did not.
I understand that they never attempted to try and address this
issue in the negotiation. I guess that the whole issue now depends
on the ruling of the Court of Justice in those cases, and that
will settle the situation—presuming that it is clear, not
only as regards the current legal framework but also as regards
the legal framework in the future, as to how to distinguish between
the two protocols.
Q90 Chairman:
What are the circumstances where we are currently locked in or
locked out of participation, under the protocols?
Professor Peers: I am a little reluctant to
use the phrase "locked in" and "locked out"
because it implies absoluteness. We can always get in or out,
but with consequences. It is like a marriage: if you want out,
there are consequences. You can do it. If you want in, you can
do it, with consequences. At the moment, the only case in which
we are locked in or locked out is the Schengen acquis.
We are locked in wherever a measure is proposed which builds on
something we have already opted in to as part of the Schengen
acquis, which is mainly the criminal law part, the policing
part—with a little exception—and the illegal immigration
part. If something new were presented on carrier sanctions, for
instance, we would now be obliged to opt in to it as the rules
currently stand, because we have already opted in to the existing
Schengen convention rule on carrier sanctions. Again, with the
Schengen Protocol there is a lock-out rule, at least in practice—this
is the issue which is in dispute before the Court of Justice.
The way the Council and the Commission interpret the rules is
that we cannot generally opt in to something which builds on a
part of the Schengen acquis which we have not opted in
to yet. In the case of external border controls or visas, for
instance, we cannot generally opt in to something—in their
interpretation—which builds on something we have not opted
in to yet. The determining factor, therefore, is whether we have
already opted in to something in the Schengen acquis. If
we have, we have to stick with it as we pass future measures;
if we have not, then we are locked out as regards future measures.
We might at least get a little bit of flexibility at the margins
on that point, but not very much. As I say, the UK has challenged
that interpretation and I think it has a very good argument, but
at the moment it is looking like it will not win. As regards Title
IV, it seems to me that we have total freedom to opt in or opt
out of individual measures. We have never been pressured to opt
in to anything. The UK has always taken its own decision; we have
never been told that we cannot opt in to something that we wanted
to opt in to as regards Title IV. Equally, we have never been
told that we must opt in to something that we wanted to opt out
of. Even where a proposal amends an existing measure which we
have opted in to already, we have not been told that we have to
opt in to it. Although I understand there has been some discussion
about that from the Council's Legal Service, which is apparently
why the UK was anxious to try and address this issue by means
of a protocol. It may have been better to let sleeping dogs lie,
but I suppose this new clause in the Title IV Protocol gives us
insurance that at least we can opt out of something which amends
something that we have already opted in to. The position would
change under the new Treaty, therefore. First of all, with Title
IV, if something amends something we have already opted in to,
we can still opt out of that amendment but with the risk that
the Council will decide to cut us out of the measure that we have
already opted in to; although there is a procedure and there is
a substantive rule for that. They can only cut us out if our opting
out of the new measure makes the application of the existing measure
inoperable for other Member States or the Union. If they did make
a decision to cut us out, it would obviously be subject to legal
challenge. I would interpret that substantive rule quite narrowly:
to say that, for instance, if there were an amendment to the Asylum
Procedures Directive it is unlikely that the existing directive
would be made inoperable simply because we applied the existing
directive but not an amendment to that directive. Equally there
are a lot of other cases where I think that would be so. Simply
because we apply somewhat different rules than other Member States
would not therefore normally make that measure inoperable. It
might make it more complex, but "inoperable" is a higher
threshold than simply "more complex" or "more difficult".
It suggests a technical inoperability; not just a difficulty but
in practice making it unable to function without the UK's participation
in the amending measure. I therefore think that is a higher threshold,
although others may take a different view and it may end up being
litigated in future. The Court of Justice may take a different
view as to what exactly the threshold is of "inoperability".
The issue is that we will at least have that prospect hanging
over our heads, where a proposal would amend an existing text
which we have opted in to. It would be irrelevant if we have not
opted in to an existing text—in the case of immigration,
for instance. The Schengen acquis protocol will be amended
much to the same effect, with the threat that we will be cut out
of our existing partial opt-in to Schengen to some extent, if
we do not opt in to a measure which amends the part we have opted
in to. As I have said, however, that is more flexible than what
we have now. As it stands now, we cannot opt out of something
building on to something we have opted in to as far as Schengen
is concerned. We will actually have more flexibility to do that
in future, but subject to those possible consequences of being
cut out of parts of our existing participation. Although, again,
that is subject to a threshold which will not automatically be
satisfied. It is a slightly different threshold than simple inoperability.
Again, the threshold would have to be measured. In my interpretation,
I think that it is a reasonably high threshold to satisfy for
the Council to start cutting us out of the measures. For instance,
I think that it would be possible for us to apply a slightly different
version of carrier sanctions than other Member States if we decided
to opt out of a proposal amending the existing regime, for instance.
That is my interpretation. That may end up being subject to a
different interpretation if the Treaty came into force.
Q91 Lord Wright of Richmond:
My Lord Chairman, may I take the opportunity to thank both our
witnesses for the help they gave me as Chairman of Sub-Committee
F? It is very nice to see you both again. Can I ask you about
Frontex? You possibly know that Sub-Committee F—and I am
not speaking here as a member, let alone as a Chairman, of Sub-Committee
F—are undertaking an inquiry into Frontex. I would be very
interested to know how far our rather anomalous relationship with
Frontex, in terms of opting in and opting out, is affected by
the Reform Treaty. Will it differ?
Professor Peers: No, because the Reform Treaty
would not clarify this question of when the UK can opt in to measures
building on Schengen. It makes it easier for us to opt out of
things we do not want; it does not make it easier for us to opt
in to things that we do want. If the Council and the Commission
are correct in saying that we cannot opt in to the European Borders
Agency as it stands now, they will still be correct after the
Reform Treaty. Equally, if they are wrong, they will still be
wrong after the Reform Treaty. It all depends on the Court's judgments
in those particular cases.
Chairman: Can we go on to criminal justice
and policing? Perhaps you would like to open that question, Lord
Wright.
Q92 Lord Wright of Richmond:
Perhaps I may echo the remark made by Lord Lester and his improbable
claim not to know all about the subject on which he was asking
a question. In my case it is a rather more genuine claim! Under
Title VI, new Chapter IV sets out detailed areas of competence
in criminal law. Is the scope of co-operation wider than under
the existing EU Treaty? Could I perhaps add a supplementary point
to that? The European Select Committee heard evidence yesterday
from Professor Chalmers, who made the comment that he thought
there was a risk of the European Court of Justice becoming an
asylum court. I do not know whether you have any thoughts on that,
but perhaps I could put the main question to you?
Professor Peers: They are quite different questions.
However, in my opinion it would be quite interesting to see the
Court of Justice becoming an asylum court and lots of asylum cases
being decided there. It is a little theoretical at the moment
to say that it would get vast numbers of asylum cases. So far,
it has not had any and I do not think you could assume that such
a huge proportion of asylum claims would be referred there by
national courts. Although there are 400,000 or so asylum claims
a year in the European Union, only a certain number of them will
be litigated before the courts, where people would wish to continue
litigation and to get references to the Court of Justice, and
where national courts would be willing to send cases to the Court
of Justice. In any event, the Court is trying to set up an emergency
rulings procedure. I am not convinced, therefore, that there will
necessarily be an unmanageable number of cases or that there would
not be the further development of a mechanism, such as setting
up a separate tribunal or something that could deal with the number
of cases effectively. I am more concerned that it is not getting
asylum cases than by the number of cases it might get. In the
absence of getting asylum cases, it is impossible to talk about
establishing a common European asylum system and to have uniform
standards, or any move towards uniform standards, across the European
Union. As far as criminal law is concerned, there has always been
a dispute over the scope of the existing criminal powers of the
European Union. That has never really been settled, and therefore
it is difficult to say whether the Reform Treaty is an expansion
or even potentially a narrowing of the criminal law powers of
the European Union. There is a vague power to facilitate cooperation
in the Treaty at the moment. That would be replaced by a very
specific power, particularly in 69e(2), to deal with domestic
criminal procedural issues; but that still has to be to the extent
necessary to facilitate mutual recognition, and it still only
concerns specific criminal procedural issues—although the
specific issues cover quite a lot of the content of criminal procedure,
particularly evidence and individual rights in criminal procedure.
Depending on whether you think the existing power is very narrow
or very broad, that is either an expansion or a narrowing. I tend
to think that the existing power is quite broad and so this, in
my opinion, is a narrowing. Of course, some Member States, like
the UK Government, argue that it is quite a narrow power and that
therefore this is a broadening. That could equally be said perhaps
of the competence over substantive criminal law. Certain substantive
crimes are mentioned in the treaty and so, as it stands now, it
is not entirely clear whether the Union's competence to harmonise
substantive criminal law is limited to those specific crimes or
not. Under Article 69f of the Reform Treaty, you have a list of
ten crimes which the Union is competent to harmonise; at least
you have a clarification, therefore. Again, whether that is wider
or broader than the existing powers depends on how you interpret
the existing powers: either as a carte blanche to harmonise
anything as far as substantive criminal law is concerned, or a
limitation to the relatively small number of crimes which are
explicitly mentioned. Just as with 69e, it depends on what you
make of the existing text. At least it can be said that both 69e
and 69f are clearer than the existing powers. Therefore, they
do bring about a fair amount of clarity as compared to the existing
text. I think that it would have been inappropriate to have qualified
majority voting apply to the existing powers without this further
degree of clarity, and that is why the clarity was introduced—because
qualified majority voting was also to be introduced.
Mr Bunyan: Under the heading "judicial
co-operation", one remembers that it is about mutual recognition
of offences and decisions; but it is also about the clause, "Police
and judicial co-operation in criminal matters", which is
about evidence-gathering. This is the subject of a treaty between
the EU and the USA, for example, and mutual assistance in this
area. One is concerned with evidence-gathering, therefore, and
not just the judgments and the decisions. In that respect, I think
one has to be a little concerned, because they talk in 69e about
specific areas like "mutual admissibility of evidence",
"the rights of the individual", "the rights of
the victims", and that is clear. However, we then have this
phrase, " ... (any) other specific aspects of criminal procedure,
which shall be identified in advance by the Council, acting unanimously
after receiving the assent of the European Parliament". We
are getting a funny procedure coming in here. If in our domestic
law we were to have a major extension, when A, B and C are absolutely
clear, if we can have any extension, we would not have
carte blanche for another procedure; we would have, in
European terms, a co-decision. We would have another framework
decision which would amend the existing framework decision, in
order that we can fully see. Why they suddenly lapse into a different
procedure of unanimity in the Council and consent of the parliament—where,
in that sense, apart from informing it, it means that the parliament
has to consent or not consent to a whole text—and why we
cannot have co-decision here, I do not understand.
Q93 Lord Jay of Ewelme:
May I thank our witnesses for the papers they have produced? I
found them extraordinarily helpful. Those of us who have been
arguing over the years for the principle of mutual recognition
rather than harmonisation have been quite pleased to see that
the principle of mutual recognition is now enshrined in the Treaty.
However, I wondered whether you could say something about how
significant you see that as a change over existing arrangements.
Also, would you reckon that there is broad agreement among the
Member States about what is meant by mutual recognition? There
has been at least one recent Council conclusion, the Council conclusion
of June this year, which has suggested that the nature and content
of the principle of mutual recognition might need further exploration.
It suggests that there may not be complete understanding among
all Member States as to exactly what it means.
Professor Peers: I think that it has always
been a bone of contention as to exactly how mutual recognition
should be applied in the area of criminal law and civil law, when
it comes down to discussing the details. To answer the first part
of the question, however, I do not think that it makes much difference
to say that mutual recognition is officially recognised in the
Treaty as the core principle relating to civil and criminal law.
That is because the judgments of the Court of Justice have already,
in civil and criminal law, said that mutual recognition was an
essential element of the legislation; and even, in the case of
criminal law, the Court of Justice has said that, within Article
2 of the EU Treaty as it stands now—which defines the aim
of freedom, security and justice—it is implicitly a system
based on mutual recognition. You will not find that explicitly
in the Treaty; that is the Court of Justice's interpretation of
the Treaty. Therefore, explicitly to make it a rule in the Treaty
does not add anything to what the Court of Justice has already
said. Equally, there are also some civil law decisions which talk
about the importance of mutual recognition. I do not think that
specifying it in the Treaty therefore adds too much to the existing
legal interpretation of the treaties. In terms of the precise
content of mutual recognition, it does differ already in a number
of specific mutual recognition measures which the Council has
adopted. It differs in the civil law measures and it also differs
in the criminal law measures. There is one criminal law measure
which has a longer list of crimes where the principle of dual
criminality is abolished. That is the framework decision on recognition
of financial penalties. However, there is another one where there
is no principle of dual criminality being relinquished at all;
that is the framework decision on the recognition of prior criminal
convictions. There is another one where the Member States have
an option not to apply the abolition of dual criminality. It is
the framework decision on the transfer of prisoners. You have
had those and you have had a large number of different approaches
to the grounds for non-recognition, whether they are mandatory,
optional or not, of other Member States' decisions. If you compare
the six or seven framework decisions agreed, adopted or proposed
as regards mutual recognition in criminal law, therefore, you
have a wide variety of approaches to the different grounds for
non-recognition. I think that the particular concern in the June
Council related to a concern the German Government had last year
as regards the European evidence warrant. The German Government
had suggested that, if there were to be lots of mutual recognition
measures, there should be further harmonisation of substantive
criminal law; but, in the end, the Council's conclusions on this
were inconclusive and they left it to further discussion as to
whether there should be a continued process of harmonising substantive
criminal law. That is an issue which may come up again, however,
as mutual recognition measures start to be more commonly applied.
Once the evidence warrant is applied and, for instance, homes
or businesses are searched in relation to an act which was not
criminal in that Member State, there may be increasing concerns
that we should be harmonising substantive law more, or at least,
alternatively, harmonising more of the procedural protections
that apply to searches and seizures for instance, or both. Those
are the sorts of issues which I think will arise in the future.
There is bound to be a continued debate on the detail of the mutual
recognition principle, even as it is more and more accepted as
the central principle in practice.
Q94 Lord Lester of Herne Hill:
As you know, out of the 47 Member States of the Council of Europe
only four have a common law system base, and that applies also
among the 27 members of the European Union. As you also know,
our criminal justice system substantively, and especially procedurally,
is very different from those of the great majority of states within
Europe. Following Lord Jay's question, if we are concerned with
preserving the integrity of the common law system and the virtues
of it, while being good Europeans, will the changes made in the
European Union Reform Treaty and the opt-ins and opt-outs enable
us and the smaller countries, which are Ireland, Malta and Cyprus,
to be able to maintain the integrity of the common law system,
procedurally and substantively, or not?
Professor Peers: I think that for the UK and
Ireland the answer is yes, provided they use their opt-out to
stay out of the way of any proposals which do seem likely to have
an impact on the common law system. For Malta and Cyprus it is
a different position, because they do not have opt-outs; they
have emergency brakes instead. It may be harder for a very small
Member State to pull an emergency brake politically, but at least
it is open to them to stop the discussions on the grounds that
their criminal law system would be fundamentally affected. In
the case of the European public prosecutor, if we opt in we have
a veto—or we could just opt out. Malta and Cyprus, who do
not have an opt-out, would have a veto in that case. I think that
it is quite likely that the UK will opt out of the idea of a European
public prosecutor, once the proposals come to fruition. I think
that it is quite likely that the UK will opt out of at least some
of the domestic criminal procedure measures, which are likely
to be proposed on the basis of 69e(2). To that extent it should
be possible, certainly for the UK and Ireland, to avoid any dramatic
impact on the common law system under the Reform Treaty.
Q95 Lord Lester of Herne Hill:
I speak now from practical experience, as an advocate who appears
in Strasbourg more than in Luxembourg. My concern is that we regard
the European Convention on Human Rights as some great, harmonising,
overall set of principles that will apply to all European states.
My impression is that the composition of the European Court of
Human Rights now, with its 47 judges, is less appreciative of
the need to preserve the integrity of the common law system in
some cases than it used to be. Therefore, when looking at the
link between the EU and the ECHR system, I am troubled as to whether
reliance upon the ECHR as the great harmoniser of procedural guarantees
is a sufficient safeguard. I do not know whether this is your
area and whether you understand that slightly muddled question,
but I hope that you do.
Professor Peers: Yes, I think I understand it.
However, to the extent that the Commission makes proposals to
implement ECHR standards in greater detail, for instance, in relation
to the rights of individuals in criminal procedure, the UK can
simply opt out. That is not a hypothetical example, because the
Commission made such a proposal in 2004; the UK and some smaller
states have vetoed it. I would anticipate the Commission making
a proposal to that end, or perhaps a more ambitious version, after
the Reform Treaty is in force, and I would expect that the UK
would then simply opt out. The discussions would therefore proceed
on the basis of the Commission's proposal without our involvement.
I do not think that proposal was ever likely to damage the common
law simply because it reflected the wording of the ECHR to a large
degree. However, taking your point on board and taking the wording
of the ECHR on board—that perhaps it does in fact represent
some kind of threat to common law—in any case our ability
to opt out of that, and the likelihood that the UK would opt out
of that proposal, would mean that any threats to the common law
by means of the ECHR will not happen, by virtue of Union law.
It might of course still happen in the Strasbourg jurisprudence.
There is no way of getting round the UK being sued there by individuals.
However, it will not happen via the EU legislation on this issue
as a venue, as long as the UK is willing to exercise its opt-out
as often as I think it is quite likely to do.
Q96 Lord Rosser:
I am not a lawyer and so I sometimes struggle to grasp exactly
what is being said, and I realise that my question is asking you
to go back on something you have already covered. However, am
I right in saying that what you have said is that if there is
a measure that we have already opted in to, which in future will
be covered by qualified majority voting, then, if an amendment
is made to that measure which we do not like the look of, we can
opt out?
Professor Peers: We can still opt out of a proposal
to amend a measure that we have already opted in to.
Q97 Lord Rosser:
And where qualified majority voting applies?
Professor Peers: It does not actually matter
whether qualified majority voting applies or not, but it would
normally apply. There is more of a risk, of course, of our not
getting our way if we opt in and qualified majority voting applies.
The answer is that we can still opt out, but it is a possibility
that the Council can say to us, "Your opting out of this
new measure, this amending measure, makes the existing measure
inoperable for everyone else. What we are going to do, therefore,
is cut you out of the existing measure". They cannot force
us to opt in. We still have the opportunity to say, "We don't
like the look of that amendment" and, no matter what, we
cannot be dragged in, compelled as such, to participate in the
adoption of that amendment. What can happen, however, is that
there will be an alternative sanction for us, which is that we
are in effect kicked out of participation in the existing measure—which
is, assuming that we wish to continue participating in the existing
measure, a sanction placed upon us. Perhaps you would argue that
ideally it is something that we would not want to have, but that
is not the same thing as being forced to participate. There is
no way in which we could be forced to participate. It can be construed
as pressure to participate, of course, but it is not legally possible
to force us to participate in an amending measure.
Q98 Lord Rosser:
I have understood what you have said, but could you give me an
example of a measure where we did not like a proposal to amend
it, we said, "We are therefore opting out", and we were
taken out of the measure completely? Could you give me an example
of one that might prove politically very difficult for us, if
that happened?
Professor Peers: For instance, the proposal
I mentioned on the Rome regulation which regulates the conflict
of laws in contract, where already we ratified the Rome Convention,
but we opted out of the Rome regulation because there were some
specific provisions that the Government had concerns about. The
Government has been hovering on the sidelines with this one, trying
to influence the Parliament and the Council to adopt a text which
it could then opt in to after it is adopted—which is a procedure
that is open to us—and it has perhaps succeeded. We are
getting towards the end of that process, as I said before. However,
what it would be open to the Council to do would be to say to
us, "Now the procedure is nearing its end, we are going to
urge you to opt in to this regulation and, if you don't, we'll
cut you out of the Rome Convention"—so we would no
longer be governed by the Rome Convention. That would place greater
pressure on us and would change the whole negotiating dynamics,
you could say. At the moment the UK has been hovering on the sidelines,
in a way not being constrained; because if we lose our argument
to change the text during negotiation we are still bound by the
Rome Convention, which we are willing to live with. Then the negotiating
dynamics would change, because there would be the possibility
of the Council saying, "No, it is inoperable to have these
two texts applying simultaneously. Therefore, we are going to
cut you out of the Rome Convention". At least, that threat
would perhaps be made or discussed during the negotiations. We
could argue that it would not be inoperable for us to have one
set of conflict of law rules and the other Member States to have
a slightly different set. There is not a vast difference between
the texts in any version that has been under discussion. As I
said, it is possible that the threshold for inoperability is not
as high as I have suggested it should be, and that would make
it easier for the Council to place that kind of pressure on us.
That is just an immediate example; there are other, more hypothetical,
examples. For instance, the Commission will propose amendments
to all the asylum legislation next year, which is likely to raise
the standards of protection. If the UK is not keen on raising
the standards of protection, then the discussion on those proposals
is likely to continue after the Reform Treaty is in force and
therefore the question will arise. If we do not want to participate,
if we have opted out of those proposals for amendments, we can
be cut out of the existing asylum texts. Of course, the Government
could welcome that; they might be happy to be cut out of the existing
asylum texts. They might even want to opt out of the proposed
amendments, in order to get cut out of the existing ones. It is
actually a way out of existing texts. If you take the view that
we perhaps should not have participated, then this is a way out
of them. We might want to convince the Council that our opting
out of the new measure makes the existing one inoperable, "So
please kick us out of the existing one". It is theoretically
possible perhaps that, under a different Government than the current
one, we might want to make that kind of argument. That is, at
least theoretically, a possibility. As I say, we could not be
forced to participate. This possibility of a cut out, though,
could be construed as pressure placed upon us.
Q99 Chairman:
My next question is about the purpose of Article 69f(2) and whether
it resolves the question regarding the legal basis for measures
defining criminal offences and sanctions, and whether or not criminal
offences and sanctions could be defined under the provisions on
the environment, which is outside Title IV, to which the UK opt-in
would not apply. Could you briefly help us on that?
Professor Peers: I think that it does clarify,
first of all, the legal base issue. It makes it clear that, within
the other spheres of Union policy, the Union can adopt criminal
law measures, to the extent that the area has been subject to
harmonisation measures and that those measures can involve both
criminal offences and sanctions. At the moment it is not clear
whether that principle extends beyond environmental law or environmental-related
issues, like ship source pollution—which is the subject
of a recent judgment—and also the Court of Justice has ruled
out the adoption of detailed sanctions on the basis of such a
power. That would be possible under the Reform Treaty. However,
it is not entirely clear to me whether the British opt-in would
apply to such measures. I think that it probably would not, because
such measures would presumably be adopted on the other legal base:
the environmental law legal base or the transport law legal base,
for instance. It is not absolutely clear from the wording of the
Treaty whether it would be that other legal base which applies—the
environmental law legal base—or whether it is simply that
the decision-making procedures which exist elsewhere would be
imported into Title IV. We have the wording, "Such directives
shall be adopted by the same ordinary or special legislative procedure".
You could read that to mean that it is just the same procedure
being moved over here; that it is not the use of an environmental
legal base but the use of a Title IV legal base. The importance
of that, of course, is to determine whether the British opt-out
applies. I do not think that it is entirely clear. One thing that
is clear is that the emergency brake would apply. We could still
stop discussions on the proposal if we had a fundamental problem
with it; if we thought that it would fundamentally affect our
criminal justice system.
|
