Examination of Witnesses (Questions 100
- 119)
WEDNESDAY 21 NOVEMBER 2007
Mr Tony Bunyan and Professor Steve Peers
Q100 Lord Wright of Richmond:
Given the events of the last 24 hours, this might not be the happiest
moment to raise the question of data protection. However, could
I ask Mr Bunyan this? The new Article 24 of the Treaty on the
European Union requires the Council to adopt a decision on data
protection when Member States are acting in the context of their
common foreign and security policy. What is the purpose of this
provision, and why is it not subject to co-decision by the parliament?
Mr Bunyan: The purpose, I think, is in order
to protect and to extend the existing agreements with third states,
primarily with the United States, for example the Europol agreement,
the sending of data, the extradition one, the one on mutual co-operation,
the one on PNR—which is the most controversial or one of
the most controversial. In a sense, SWIFT does not come under
this, because they have managed to shove SWIFT off into the cul-de-sac
of Safe Harbour and pretend that it has nothing to do with foreign
policy—but the same questions arise. What is of concern,
of course, is that at the moment there are secret meetings, EU-US,
trying to negotiate a set of standards so that, every time they
have an agreement, they do not have to go through the process
all over again. They want to have one set of standards which can
be applied to any external agreement, rather than on each occasion
having to go through a different fight of finding it open to challenge.
I know that it is one of the ambitions of the present Government
in this country to bring international treaties, for the first
time, under a degree of parliamentary control and agreement. One
would like to think that, at least on this occasion, the EU would
perhaps follow this example, rather than the reverse, of EU policy
and think that the idea that you can reach international treaties
without having co-decision of the parliament should be a thing
of the past. We have to get rid of the idea that they can do this
and come to agreements with third states. As we know, the most
controversial in data protection are those with the United States.
Of course it should be subject to co-decision and I would like
to think that is the primary purpose. We have seen in the negotiations
over data protection, in what is currently the third pillar data
protection measure, going through in secret. In the very early
stages, the United States, in the EU-US meeting minutes—which
again are secret but we have managed to get copies of them—has
made it quite clear that what was Article 15, which replaced the
need for adequate comparable standards on third states, had to
go, because it would mean that the United States could not exchange
data. It is very clear, therefore, that we should not have one
data protection standard outside the EU and another data protection
standard inside. That is clearly nonsense, and any decision should
be decided with co-decision within the parliament.
Q101 Chairman:
Can we go on to border checks, asylum and immigration, and ask
you to outline the most significant changes that the Reform Treaty
introduces regarding co-operation in that regard? At the same
time, could we ask you to comment on the new Article 69(3) of
the Reform Treaty, based on Article 18(3) of the existing European
Community Treaty, which allows the Council by unanimity to adopt
measures relating to specified areas concerning Union citizens'
rights to move and reside freely, where the treaties have not
provided the necessary powers? The areas that were excluded by
Article 18(3) were " ... passports, identity cards, residence
permits or any other such document or to provisions on social
security or social protection". Those are excluded in the
existing Treaty. Can you indicate what significance the change
is likely to give rise to?
Mr Bunyan: In answer to your first general point,
I do think that the issues of repatriation and residence without
authorisation will become a concern. Obviously, what is brought
formally in here is the negotiation of readmission agreements
with third countries. I would single out those two as the two
distinctly new aspects. They are both underway at the moment;
but if they are now in the Treaty and clearly on the table in
that sense, then I think that they may become a problem in the
future. The second point you make, though, is an area which has
been of interest to us and on which we have worked for many years.
This was in Article 18(3) of the Nice Treaty, which was absolutely
clear that we were not going to have passports requiring biometrics
of any kind as far as this is concerned. This was moved, of course,
as noted in our comments. It was moved from one section into this
chapter, in the process of the mandate through to the final clause.
What we have here, therefore, is something which is saying that
we may, in relation to any travel document—such as passports,
identity cards, residence permits, or any other such document—take
necessary powers; and this is to be done by the Council acting
unanimously with the parliament yet again consulted. This is probably
one of the most outrageous provisions in the new Treaty. Here
is something which was expressly precluded under Nice and is now
coming back in again, where the parliament is again being given
just the role of consultation and not co-decision. I am very suspicious
when I see terms such as "measures concerning", because
we could think that means just the document or just fingerprinting
and biometrics; but it could also include the databases on which
that information is held—whether at national level or EU
level. It could include data-mining, data-sharing, data protection
standards. We are concerned here, therefore, with all the onward
use of measures connected with; and "measures connected with"
of course come back the other way. In this country and elsewhere,
you do not just have to give your fingerprints once and to get
your new passport next year. There is a massive industry now building
up in terms of providing all the readers for every other EU Member
State you enter. Initially, all your fingerprints get on the UK
records. Therefore, if you go to Germany, France or wherever,
they will have to take your fingerprints again—to prove
that your fingerprints are the same fingerprints as are on the
chip, as are on the passport. You will not be giving your fingerprint
once, therefore; you will be having it done in every country you
visit and in every country you leave. Clearly the standards and
the measures necessary connected with these travel documents represent
a pretty big decision—including, as I mentioned earlier,
at what age you fingerprint children. That should clearly be a
matter of co-decision and a matter of public debate and concern.
Q102 Lord Lester of Herne Hill:
Including remedies. You have not mentioned remedies. Remedies
for abuse of the system. That should also be included, should
it not?
Mr Bunyan: Of course it should, yes.
Professor Peers: I will comment generally first
of all and then on that specific point of the passports power.
The borders and visas power is slightly broader than the existing
power because the visas policy is broader in principle and the
power to regulate the freedom to travel is broader in principle.
There is also a new power to establish an integrated management
system for external borders, which I assume means aspects other
than border checks on people, including customs as well. The asylum
power is much broader and includes the power to adopt uniform
measures in most areas, giving a status of asylum which is valid
throughout the Union. That is therefore a more intensive power
than the power at the moment, which is to set minimum standards.
The powers over immigration shift, as far as legal immigration
is concerned, to a qualified majority vote and co-decision, which
is a very significant change in decision-making, although Member
States have reserved powers to regulate people coming from outside
the EU for employment. Therefore, that important issue, the volumes
of such people, is still within the sole competence of the Member
States. There is a little clarification as to the powers over
migration, which more or less confirm the status quo of what the
Union already does. There is not much change in the powers over
illegal migration. There are already many readmission agreements
by the Community; so I think that an express power to adopt them
does not actually change very much. To come back to this passports
clause, it is subject to two conditions. The action by the Union
must be necessary to facilitate the exercise of free movement
rights of EU citizens, and also it can only be used if the Treaties
have not provided the necessary powers. First of all on that second
point, there are already passport security measures adopted on
the basis of the EU's external borders powers, which will be subject
still to qualified majority voting and co-decision. It therefore
seems to me that that type of regulation, of passport security
issues anyway—to the extent that you can link any of these
things to external border control—would still be an external
border measure and therefore still subject to a different decision-making
procedure. However, that is harder to justify in terms of identity
cards, because they cannot be used for crossing an external border
of the Schengen states; although they can, in the sense that you
can use an identity card to cross the border between the UK and
Ireland and the Schengen states, and vice versa, under Community
free movement law. That is therefore an ambiguous position, as
to whether or not that particular border is an external border,
which makes the decision-making subject to a different procedure.
I think that point is quite unclear. Also, there is the important
proviso that any passport or identity card measures have to be
there to facilitate the exercise of the right to free movement.
I do not think that it facilitates my free movement rights or
anyone else's free movement rights if the security authorities
want to collect masses of data on everyone holding an ID card
or a passport. Of course it facilitates the interests of security,
and that may or may not be justified, depending on how proportionate
it is; but I do not see how it facilitates the exercise of the
right to free movement if we are required to go to involvement
centres and to be asked hundreds of questions before we get a
passport, for instance, or to impose additional requirements as
regards biometrics, or whatever else is applied, as regards getting
passports and ID cards. It simply does not facilitate free movement;
it may even make it more difficult. To the extent that you could
find a legal base for security-related measures, it cannot be
this legal base. I think that it would have to be somewhere else:
whether external borders, to the extent these documents are used
to cross external borders, or some other power in the treaties,
if such a power exists. What does that leave us with? I think
that the Union can harmonise the format of passports, ID cards
and residence permits or any other such documents, to the extent
that that is directly related to exercising free movement rights.
It obviously is simpler already. Because of the soft law harmonising
the format of EU passports to cross borders, you could therefore
have hard law which sets out in the detailed regulation what the
format is of a European Union passport. Equally, you could have
hard law, if you wanted, harmonising the standard of identity
cards, but purely because identity cards would be used to cross
internal borders within the Union, particularly between Schengen
and non-Schengen states, because of Community free movement law.
However, it could not go beyond that. It could not include security
features because the security features do not assist the exercise
of the right to free movement. That is my interpretation, though
I can imagine that there will be some who would take a different
view. That is certainly how I interpret what are those clear conditions
on the use of paragraph 3. There is a final point as regards data
protection. Remember that there is a general data protection power
in the Treaty. That would have to be the correct legal base for
adopting general data protection rules. Although I would imagine
it is still possible that if a measure is adopted—let us
say establishing a passport database, assuming that is valid under
this new paragraph—there could be some additional detailed
rules on data protection as it relates to that particular database.
You would therefore have a mix of general rules in the general
data protection legislation and detailed rules in the specific
measure, just as you have now as regards the Community's general
data protection directive and the Visa Information System or the
Schengen Information System, for example.
Q103 Chairman:
Can we go on to civil justice and family law measures? Again,
perhaps you could indicate the most significant change that you
see the Reform Treaty introducing in the area of co-operation
in civil justice and family law. Is the scope for co-operation
increased?
Professor Peers: Generally, I do not think that
the revised version of Article 65 does very much. It may seem
that it makes it slightly easier to adopt measures because it
specifies that they may harmonise national law but, in practice,
I think that the measures which are adopted already on the basis
of the existing power entail the harmonisation of national law
on issues like the conflicts of law jurisdiction and recognition
of judgments. For instance, it specifies that mutual recognition
is the basic principle but, as I have said, that is already the
case. The decision-making does not change, whether in respect
of family law or non-family law issues. There are a couple of
new points added to the Union's powers, such as effective access
to justice; but these essentially reflect measures which the Union
has adopted already under the existing powers. Essentially, there
is no profound change, therefore. There is also no longer a requirement
that the measures are necessary for the functioning of the internal
market, but there is still a requirement—which I think is
the more important requirement—that the measures have to
have cross-border implications, which in practice has been a significant
constraint. Member States have all interpreted that to mean that
the individual measures must deal only with civil law disputes
which have a specific cross-border component, about plaintiffs,
defendants, or people involved in the proceedings having relationship
in different Member States. Therefore, with someone suing someone
in Britain, with a British plaintiff, and a British defendant,
with all the aspects of the law confined to Britain, cannot be
the subject of a civil law measure; there has to be some cross-border
aspect to it. That important restriction is therefore maintained.
As far as family law is concerned, unanimity is maintained and
with, in fact, an even stricter rule relating to changing decision-making.
At the moment, national parliaments are not involved. If the Union
wanted to change the decision-making, the Council could act unanimously
without their involvement; but, under the Reform Treaty, each
national parliament will have an opportunity to block the decision-making
and therefore stop that change from taking place, within a six-month
period. It is not a full Treaty amendment but it still gives each
individual national parliament the power to block the decision.
That is therefore a significant change, and in fact it protects
national parliaments and protects the specificity of family decision-making
more effectively than the existing Treaty does.
Q104 Lord Jay of Ewelme:
On that last point, that is repatriation of competence in a sense,
is it? Perhaps that is putting it too strongly. It is a move in
the direction of greater power for the nation states and parliaments
than is the case under the existing treaties.
Professor Peers: It specifically gives more
power to the national parliaments. Member States still have a
veto over a change in decision-making. At the government level
that has not changed. It is the national parliaments who have
an additional power to block the change in decision-making. It
does not actually alter the competence of the Union—there
is still a family law competence—but it will be harder to
shift that to qualified majority voting than it is at the moment.
It therefore safeguards national interests in that way.
Q105 Chairman:
Turning to transitional provisions and the particular protocol,
the transitional provisions relating to Title VI exclude those
measures from the jurisdiction of the European Court of Justice
and the Commission's powers of enforcement for five years, unless
the measure is amended. Can you tell us what you think might happen
in the interim period and whether they will renegotiate all the
measures? Will amendments be obvious, therefore, when the exclusion
no longer applies? How do you see all this happening?
Mr Bunyan: I think that the justice and home
affairs acquis in total is several hundred measures. Many
have been inherited. There is therefore a pre-Amsterdam acquis—which
even includes, prior to that, some of the Trevi measures. We do
try and track measures which are supplanted. The most obvious
one which the Council has itself been motivated to do is to take
upon itself the rewriting of the rules for Europol and then to
give itself the power to change them whenever it wants to, rather
than having this rather inconvenient Convention—which this
House spent many months going through, if my memory is correct,
as did many other national parliaments. I think that where the
Council, or possibly the Commission, want to make changes on selected
things, they will make the change—and indeed already are.
I suspect that it will be a small number of the existing acquis.
It is of course possible that some of them will be argued to be
technical changes, which would be simply transferring it. Will
it be easy to spot that when it is happening? It is a double answer,
therefore. On the one hand there is a lot where one would suspect
they would just leave them there, unless they become an issue—because
it is a great mass of legislation to change, except, like Europol,
where they have chosen to change it. On the other hand, if they
do, it may be passed at a first reading, quick change, where we
may run up and try to find a catch and say, "Look, do you
know what is happening?" I do not know whether Steve has
a different interpretation.
Professor Peers: It is only the policing and
criminal law measures which are subject to this special rule and
the Court of Justice. It does not arise in respect of all the
immigration and asylum measures. I think it is unlikely that they
will readopt all of those measures, although it would be possible
to do it quickly if they agreed not to change the text at all
but simply to transpose them all as regulations and decisions.
However, that would still mean flooding the legislative system
of the Community for a year with 50 or 100 measures, or something
like that. There are over 20 framework decisions and several more
will be adopted. Forty decisions have been adopted on top of the
pre-Amsterdam measures as well, and more decisions will be adopted
in the next year. It would therefore be a massive undertaking
to readopt them all. However, I think that some of them will be
amended in the normal course of events during those five years,
such as Eurojust for instance—where the Commission wants
to make a proposal next summer, which probably will not be agreed
before the Reform Treaty is in force. It will have to re-table
it and, therefore, once it is adopted, that is an amendment to
the Eurojust decision. One measure would therefore be amended
very quickly already. Will it be obvious if an existing measure
has been amended? Sometimes, yes, it will be very obvious. For
instance, if you added a new ground of non-execution of a European
arrest warrant—to the framework decision on the European
arrest warrant—obviously that is an amendment to the framework
decision on the European arrest warrant. The new jurisdiction
of the Court of Justice applies; though that still raises some
interesting questions. Does it apply immediately or does it apply
at the date of transposition, which might be two or three years
after the directive is adopted? That could be a practically important
question. Sometimes, however, it will not be obvious whether an
existing measure has been amended. What if it is an implementing
measure that is amended rather than the parent measure? That is
an obvious question which arises with Europol, where, as Tony
said, the Europol convention will probably be replaced by a decision
next year; but there are a lot of implementing measures which
are amended each year. In fact, all the existing implementing
measures will have to be replaced. They are planning to replace
them over about a two-year period. That takes us right into the
period after the Reform Treaty would be in force. Would the adoption
of a new implementing measure, even with the same text of a previous
implementing measure relating to Europol, mean that everything
to do with Europol is therefore considered amended, including
the main decision, or will it be only each individual implementing
measure which will be considered as amended and therefore subject
to different jurisdiction of the Court of Justice? That is a rather
peculiar example. Another example would be, for instance, if new
legislation takes some clauses out of an existing piece of legislation
but does not add anything in. There are a number of examples of
that under discussion already or which have been adopted in the
past. Would you therefore regard the existing measure as having
been amended or not? Has it had anything added to it? Would you
therefore regard it as having been amended? Another example would
be if a provision of the Schengen acquis, or particularly
the Schengen convention, is altered or withdrawn. Would that therefore
mean that the whole of the policing and criminal law part of the
Schengen acquis must be regarded as amended? It concerns
many different things. Would an amendment to, say, one specific
clause dealing with hot pursuit mean that everything which is
in the Schengen convention as regards policing and criminal law
must be regarded as therefore amended? Those are the sorts of
issues. One thing I have to point out about the way this question
is phrased is that the Court of Justice is not excluded entirely
from Title VI as it is now; it is simply subject to a different
jurisdictional regime. The UK has opted out of sending references
to the Court but 15 Member States have opted in. They will be
able still to send references to the Court for that five-year
period. This restriction on the Court's jurisdiction for that
five-year period therefore does not mean so much to them as it
does for us and the other Member States which have opted out of
that jurisdiction. It is relevant to everyone as far as the exclusion
of infringement proceedings is concerned, but it is not relevant
to everyone as far as references from national courts are concerned.
Tony has made a note here about "soft law". I guess
the same point would apply. If soft law is amended, then it will
be subject to the Court of Justice, because the Court has asserted
jurisdiction over Community soft law; but it depends of course
on how you define amendments and whether the measures are in fact
amended.
Q106 Chairman:
Can we turn to the question of the Charter of Fundamental Rights,
which we could perhaps deal with fairly shortly? Could you tell
us what impact you think Article 6 of the proposed Treaty will
have on the protection of fundamental rights in the freedom, security
and justice measures? Indeed, what will be the effect of the protocol
which the United Kingdom has—I think now not Poland perhaps—and
will that protocol actually prevent the courts from referring
to the source of Charter rights, which are all set out in the
explanations relating to the Charter? Can our courts be prevented
in any way? Are they currently prevented from referring to those
sources?
Professor Peers: To answer the more general
question, it always has to be kept in mind when discussing the
Charter that human rights are already protected as general principles
of law, and that some of the basic rules, such as the right to
a fair trial, are already recognised by the Court of Justice as
general principles of law. Equally, there is a rule in the Reform
Treaty that the EU should accede to the ECHR. To the extent that
rights that are relevant to this area are ECHR rights, therefore,
they will be protected ultimately by means of that mechanism of
EU accession to the ECHR. There will be that third prong. Those
two prongs will apply to the UK. There is no restriction on them,
regardless of the restriction on the Charter. The important question
really is, how is the Charter different from the general principles,
if it is different from the general principles, and if it is different
from the ECHR. Certainly there are some rights in there in addition
to the ECHR. Is it different from the general principles? So far,
the Court of Justice ruled on this briefly last year, in a case
called European Parliament v. Council, when it said that
the primary aim of the Charter is to reflect the general principles
and to make them more visible. That is interesting wording—"the
primary aim". It leaves a certain wriggle room to say, "It's
not the only aim; it adds some rights as well". The starting
point is that that is the primary aim of the Charter: to restate
the general principles. If the Court of Justice continues down
that line and, in any case that comes before it, says, "Of
course, the Charter and the general principles are the same, whether
in terms of the substantive rights or in terms of the horizontal
rules", then the distinction between the Charter and the
general principles is irrelevant and therefore the British Protocol
is meaningless. We are covered by the general principles anyway.
If they mean the same thing as the Charter, whatever restrictions
might be placed on the Charter applying to us do not matter. It
does become important, of course, if the Court does not say that
and if the Court recognises some areas where the general principles
and the Charter are different, or if the Court's judgments—and
this is something that I would hope could be avoided—leave
it a bit unclear as to whether the Charter and the general principles
are the same. If that is the case, if there is some scope to argue
about the differences between the general principles and the Charter,
I think that the Charter might then have an impact, because it
contains some provisions which have not yet been fully recognised
as general principles—such as the right to asylum—or
others which I am sure would be recognised, such as the freedom
from torture, the right to life, freedom from being expelled to
face torture, all of which I am sure would be recognised. Some
others, like the right to asylum, the right to proportionality
of criminal sentences—which the tabloids have been getting
quite excited about, identifying some serial killers whom they
think the Court of Justice will release—that sort of thing,
if it is an additional right to the general principles, would
be a change; but the Court of Justice can always say, "Even
though we have not commented on it already, it is already there
in the general principles". It does depend, as I say, on
whether they say the two things are the same or not. If they are
not, then that protocol is important, because we have to determine
what is in the general principles and what is only in the Charter.
If something is only in the Charter, the protocol is supposed
to limit the legal effect of the Charter. It does not exclude
it altogether for the UK, however; it simply prevents national
courts and the Court of Justice from criticising national law
in light of the Charter. However, it leaves intact the possibility
that other EU rules will apply. Those other EU rules, of course,
might be interpreted in light of the Charter. If that interpretation
is distinct from the general principles, it is very hard to say
that EU rules are interpreted in light of the Charter for some
Member States but not for the UK and they have a different meaning
for the UK. I cannot see how that would actually work. It just
does not make sense in terms of the very nature of Community law.
I think the likelihood is that if the Charter and the general
principles are to some extent different things, then that protocol
will have a limited effect because, although it will limit the
ability of national courts to strike down legislation, it will
not limit their obligation to interpret that legislation in light
of Charter rights—which, as I say, could be significant
as far as some new rights like asylum or the proportionality of
criminal sentences are concerned, because those have not yet been
officially recognised as general principles. That is the significance
it could have, therefore. That leads us to the question of whether,
when the Charter applies, there is a sufficient link with Community
law. Assuming that the Court of Justice interprets that obligation
of a link with Community law, as it does already for the general
principles, then you cannot have the Court of Justice letting
go every serial killer in the country on the grounds of having
disproportionate sentences, because most of them will not have
any links with Community law. There might be a link in the case
of terrorism or organised crime, because you have Community Acts
defining the crime and, to a limited extent, defining a minimum
sentence. You can just about argue for a link there, but certainly
the vast amount of criminal proceedings will not have a link with
Union law. Although most asylum procedures will, many immigration
measures in the UK will not, any more than they will in other
Member States, because of our opt-outs. Assuming that is still
something which the Court of Justice insists upon—and I
think that it will—you have to keep in mind that importance
of a link with Union law for the Charter to apply.
Q107 Lord Lester of Herne Hill:
My question is not intended to result in a long answer because
I am trying to keep it very simple, if I may. If I, as an advocate,
appear in front of an English judge and I rely upon an equality
directive, let us say, or equal pay for women, or I am seeking
to interpret a British Act of Parliament in the light of EU law,
or I appear in Luxembourg in the European Court of Justice, all
of the rights and freedoms in the Charter are already binding
upon all the Member States as parties to all the international
human rights treaties—apart from one or two reservations—are
they not? Answer: "Yes".
Professor Peers: No, there is no international
treaty—
Q108 Chairman:
I am no judge, but I think that is leading the witness! A single-word
answer would be appreciated.
Professor Peers: No, they are not.
Q109 Lord Lester of Herne Hill:
Let us assume that, in the main, everything in the Charter is
in the international covenants and all the other human rights
laws. Let us assume that and that it is all binding already. My
question is, if I appear in any of these courts and I refer to
the treaties which are already binding, no judge is going to stop
me, in England or in Luxembourg, or for that matter in Strasbourg,
and say, "You can't do that, because those instruments have
not been incorporated into domestic law". They will allow
me to rely upon them as a matter of interpretation or legal public
policy. For my part, therefore—and I would like you to correct
me if I am wrong—I regard the whole fuss about the Charter
as a bit meaningless, since the judges do it all the time, can
do it already, and will continue to do it, regardless of what
is in the Charter.
Professor Peers: Yes, I think that is correct.
The general principles already exist, and I think that is a particular
example of what you are already saying. The general principles
are there. They are taken from national constitutions and international
human rights law, and the Court of Justice would continue to develop
them even if the Charter were not there. It is likely to say that
they are more or less the same thing, and so I do not think—
Q110 Lord Lester of Herne Hill:
And national courts as well.
Professor Peers: And national courts as well,
if they take a lead from the Court, will do that, yes.
Q111 Chairman:
We have two more questions to cover and an additional question
which Lord Wright will ask. Just dealing with the jurisdiction
of the European Court of Justice in this Article 240b, which says,
" ... the Court of Justice shall have no jurisdiction to
review the validity or proportionality of operations carried out
by the police or other law enforcement services of a Member State
or the exercise of the responsibilities incumbent upon Member
States with regard to the maintenance of law and order and the
safeguarding of internal security ... ". What is it there
for and what does it apply to?
Mr Bunyan: In very simple terms, it is obviously
there to exclude them from being accountable to the European Court
of Justice. However, I am always confused by these terms, because
they are mixed in the Treaty and they are mixed in the usages—"police
and other law enforcement agencies." Is "law enforcement
agencies" simply the police and the customs and immigration?
On the other hand, as part of the same thing we have, "responsibilities
... (in the) maintenance of law and order and the safeguarding
of (national) security". Here we are talking about Special
Branch, MI5, GCHQ, MI6. I am always confused here about what we
are referring to. If there may be another question, it is the
question of realising that law enforcement agencies have one role
and the intelligence community have another role. I find it very
confusing here about to whom this is referring. Clearly they are
excluding the law enforcement agencies from any jurisdiction.
We must remember the other point on this question. As I read it,
we are not just talking here about the national activities of
police and law enforcement agencies; we are talking about any
co-operation—which is much stronger—on the operational
side of this Treaty; any co-operation which a national police
force takes part in with other Member States, effectively under
EU direction. It is not just exempting any miscarriages of justice
or maladministration at the national level; it is also excusing
any jurisdiction of the Court over what they will do at a European
level—which is much stronger in this new Reform Treaty.
Q112 Lord Wright of Richmond:
If Mr Bunyan is confused, I am not sure that he is able to answer
my next question! It relates to national security.
Mr Bunyan: I hope that I can!
Q113 Lord Wright of Richmond:
The question is this. The new Article 4(2) contains a reference
to national security remaining the sole responsibility of each
Member State. The Minister for Europe has told us that this goes
wider than the current derogation for internal security matters.
Do you agree? Will one result be to shield Member States' security
and intelligence agencies—which you refer to—from
the reach of EU law?
Mr Bunyan: I think that Article 4(2) is just
the generality; but when you look at it in terms of the chapter
on justice and home affairs—let us do that for a start—there
is the impact of it. We have a Standing Committee on Internal
Security. Who will be on it? What are its powers? It is for operational
co-operation, this standing committee. The acronym is COSI. The
European Parliament only is to be "informed" as to its
activities. We know that is pretty well meaningless. However,
there is something else that has crept in out of nowhere, which
was not in the Constitution. It is in Article 66, which says,
"It shall be open to Member States to organise between themselves
and under their responsibility such forms of co-operation and
co-ordination as they deem appropriate between the competent departments
of their administrations responsible for safeguarding national
security". Those are the internal security agencies. Here
we have a new Treaty power. I know that it is not an obligation,
but it is open to them to all come together and to establish co-operation
and co-ordination between all the internal agencies, without any
mechanism there for accountability, and also without any jurisdiction
from the Court. One might also add that, under another provision,
under the second pillar, we have the creation of the External
Action Service. I have been waiting for this to happen. Mr Solana
has always wanted it. One of the problems post-11 September was
that the Commission representations around the world—the
180 representations—are not empowered to gather intelligence,
as our embassy would be empowered to do. This External Action
Service will have those powers. It may be in the same office as
the Commission or in an adjacent one, but they will have different
powers, and Mr Solana has been very keen for the EU to have its
own independent intelligence capacity. We will look at this picture
pretty widely, therefore. We must remember that when they are
discussing the Data Protection Framework Decision, it expressly
excludes data protection in relation to the security agencies.
I have always asked the question that if this measure only covers
policing and law enforcement, are we to have another measure which
covers security agencies? It would appear that at the moment we
are not going to. The answer to your question as to what we are
getting, therefore, is that we are getting the recognition of
the role of the intelligence agencies—which is new—but
we are getting no accountability whatsoever, whether it is data
protection or to the courts.
Q114 Lord Wright of Richmond:
It is a question of whether the security and intelligence agencies
are more or less shielded by this new measure.
Mr Bunyan: Shielded in the sense that we are
getting both a greater recognition in this Treaty of their existence
and also that they are being shielded absolutely, on the one hand,
from what one can see as data protection and, on the other, from
judicial review.
Q115 Lord Lester of Herne Hill:
But they are not more shielded, are they?
Mr Bunyan: I am not a lawyer, so I do not know.
It is possible, of course. I think that there was a Swedish case
in the ECHR earlier this year relating to the records being held
by the Swedish intelligence agency (SAPO), and the case was overturned.
They were told that they had to destroy records in four out of
the five appellants. This will be a case which will relate to
how much data you can keep on someone's political activity, maybe
gathered under terrorism or whatever. It may be that we are therefore
seeing the construction of an issue. I do not know.
Q116 Lord Jay of Ewelme:
As I understand it, what we are seeing here is more of a clarification
of something which already exists, which is quite useful, namely
co-operation among intelligence agencies. It is a clarification
that that is not subject to the Court. I am not sure that changes
the present arrangements, but is it not a clarification of where
things are?
Mr Bunyan: In one sense it is a clarification
but, in another sense, we have new powers. The Standing Committee
on Internal Security is an utterly new development. The concept
of internal security, to people who do not know it, seems to mean
simply the police. It is not. It is a concept invented by Mr Kitson
in 1971 in Malaya for internal security, in Britain's imperial
role. It was a theory which then developed in Vietnam, developed
further in Northern Ireland, and is now part of the language in
the European Union: that internal and external security have to
be seen as both separate and joined up. It is a concept embracing
the gathering of resources, not just from the police and security
service, but going into the other areas we have talked about:
data-mining; getting data on people; monitoring their flights;
monitoring their telecommunications. It is a very wide concept.
When you set up a high-level committee in the EU concerned with
operational co-operation in internal security, this is a major
development. This is not recognising what they are doing; this
is something entirely new, which we have not had before.
Q117 Chairman:
Can I clarify that for the record? You said that the External
Action Service was going to be engaged in intelligence-gathering—
Mr Bunyan: One of its roles. I am not saying
that it is its only role.
Q118 Chairman:
Are you saying that is in the Treaty somewhere?
Mr Bunyan: It is not in the Treaty.
Q119 Chairman:
I am sure that it may be in other documents and other people may
want to look at it but, for the purpose of our report on the Treaty,
I think that is quite important.
Mr Bunyan: You are quite right that it does
not say it in the Treaty; but if you read many of the speeches
by Mr Solana, Mr de Vries and others, you will know that this
is exactly what it is going to do.
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