Examination of Witnesses (Questions 180
- 199)
WEDNESDAY 28 NOVEMBER 2007
Professor Elspeth Guild and Mr Florian Geyer
Q180 Chairman:
Presumably a UK court in that situation would have to refer to
the European Court of Justice the question whether, leaving aside
the Charter of Fundamental Rights, the European Court of Justice's
decision would have been the same.
Professor Guild: Indeed. That is one possible
solution to that particular problem.
Q181 Lord Lester of Herne Hill:
I share your bewilderment about the effect of the protocol at
all. If one were arguing a case for a British court, in so far
as the Charter simply embodies the international obligations by
which the United Kingdom is already bound under the UN covenants
or any of the other instruments, the presumption would be, anyway,
that the UK statute or administrative decision should conform
to our international Treaty obligations. That is quite clear.
It seems to me that the only area in which this might create problems
for advocates or British courts is where the Charter goes further
than existing international Treaty obligations binding on the
UK. For example, we have not ratified the fourth protocol, the
ECHR, as you know, and therefore one can imagine a situation there
where it would really matter to the UK Government. However, it
seems to me that in the main, in 99.9% of cases, this is not going
to make any difference. The national court will have been invited
to construe domestic legislation, et cetera, in conformity and
it cannot be inhibited by the protocol from doing that job if
it chooses to do so. Is that right?
Professor Guild: Indeed, my Lord. That is why
I used in my example the right to seek asylum in the Charter because
of course it does not exist in any of the obligations to which
the UK is bound other than the UN Declaration of Human Rights,
which has a specific status, and the difficulties which apply
there.
Q182 Lord Lester of Herne Hill:
That is a very good and powerful example but it is not a typical
example.
Professor Guild: One would hope it is not a
typical example. One would hope those situations would be few
and far between. Sadly, in this particular area that seems to
be where we have the cluster of examples of unratified protocols
and aspects which are likely to give rise to difficulties.
Q183 Chairman:
Let us thank Mr Geyer, who has delayed as long as he possibly
could before having to leave. We wish you a good return journey.
Mr Geyer: Thank you very much. It was an honour
and a pleasure to be here. I do apologise for having to leave.
Q184 Lord Tomlinson:
What do you think the British Government was trying to achieve.
You have talked about your views about the deficiencies in the
protocol. What do you think they were trying to achieve? Have
they achieved anything other than what you appear to be saying
is confusion?
Professor Guild: It would seem to me that in
the UK we have gone through a period of great interest and support
for human rights with the Human Rights Act, which Lord Lester
was very instrumental in bringing into UK law. We went through
a period of great support for the idea of human rights. We have
perhaps passed into a period which is slightly more reticent about
human rights and fundamental rights generally.
Q185 Lord Tomlinson:
The British Government is not objecting to the part in the Reform
Treaty about adhering to the European Convention on Human Rights.
That is all there. There is no objection to that. It is really
what additional to that you think the British Government was trying
to achieve and what they have created.
Professor Guild: It would seem to me that it
is no new obligations in human rights.
Q186 Lord Lester of Herne Hill:
Could one not give the answer to Lord Tomlinson's question that
it is political, in that by having the protocol in place one can
deal with anti-European sentiments in this area by saying, "We
have this in place." Therefore, in so far as tabloid journalisms
or politicians seek to make capital out of all this, it provides
some defensive material for Her Majesty's Government?
Professor Guild: Indeed, my Lord. This is a
very political answer which sounds extremely persuasive to me.
Q187 Lord Bowness:
My Lord Chairman, I am sorry to labour this particular point but
it is quite important. I do not think we ought to get into discussions
about whether we are in favour of this or against it. This inquiry
is seeking to deal with the effect the Reform Treaty will have
on the law as it stands. One example of the Charter of Fundamental
Rights which is much discussed and probably understood by a little
more by most people than some of the other issues, and that is
the Right of Collective Bargaining and Action. Article 28 of the
Charter of Fundamental Rights talks about that right and workers
having the right to take collective action to defend their interests,
including strike action. The explanation makes it quite clear,
and talks about the modalities and the limits of the exercise
of: "Collective action, including strike action, comes under
national laws and practices, including the question of whether
it may be carried out in parallel in several Member States."
That seems to me to be quite clear, unless you believe that words
do not mean what they say. The question I really want to know
is this: Do you think this protocol in any way changes either
the Article or the explanation? Would it allow a court, European
or national, to come to a decision about, for example, secondary
picketing, which we believe it cannot come to under our existing
legislation.
Professor Guild: It would seem to me, My Lord
Chairman, that the question is: When different aspects of the
Treaty come into conflict with one another how does one resolve
the problem? There is of course the case from the European Court
of Justice in the Schmidberger case which was about the
right to collective action versus the fundamental right in the
EC Treaty to provide services, if I remember correctly. The Court
of Justice had to find a way of dealing with that question. The
exercise of collective rights will always of course interfere
with some fundamental right to provide services or an aspect of
the Treaty. It would seem to me that in those circumstances the
ability to have reference to the Charter would assist in the clarification
of that particular kind of dispute.
Lord Bowness: I have never believed that
anybody can stop any court of any advocates anywhere referring
to something. The question really is: If somebody were to seek—as
a "for example"—a right to indulge in secondary
industrial action—which is not legal, as I understand it,
under our domestic legislation—whether this protocol would
make it possible for them to succeed in that. In other words,
does the protocol work or not? Because the words are quite clear.
Lord Lester of Herne Hill: Could I ,
as it were, add to that important question?
Lord Bowness: Please—I am sure
more eruditely than I.
Q188 Lord Lester of Herne Hill:
To take that example: suppose that an individual sought to challenge
the ban on secondary picketing in this country, in doing so they
would rely upon the European Convention on Human Rights for a
start and freedom of association—they would lose but they
would rely upon it—and they would rely on the ILO Conventions
by which we are bound and they would rely upon the UN Covenants
by which we are bound, economic and social, as well. They would
rely upon all of that in the UK court anyway as a source of interpretation
and they would seek a declaration of incompatibility with the
Human Rights Act and so on. Let us say they would lose and there
could be a case in Strasbourg and there could be a case in Luxembourg
as well. Whether the protocol works or does not work in a narrow
sense, in legal terms it could not be like the court of King Canute
and keep out all these other international instruments from being
prayed in aid to seek to challenge the secondary boycott. I think
the secondary boycott would not be successfully challenged but
that is another matter. I do not see how the protocol would act
as a real barrier in that case. Am I right or wrong?
Professor Guild: I would agree entirely with
you, Lord Lester. We are looking at a framework of fundamental
rights in which the Charter is only one piece, which has to be
understood within the larger framework of international human
rights law. It cannot be read out of context. The intention is
to provide a coherent system of fundamental rights which apply
in the 27 Member States and which take into account and which
interpret and apply at the EU level correctly the international
obligations of the Member States.
Q189 Chairman:
It is the position, is it not, that the protocol, in particular
in relation to Title IV of the Charter, is designed to say, "That
cannot be the tipping factor". One asks, looking at Title
IV, whether it would anyway be the tipping factor because it does
not say that you do have the right to take the collective action;
it simply says that you have the right in accordance with Union
law and national laws and practices. National laws and practices
do not have all the rights and, unless you can find them elsewhere
in Union law outside the Charter, it is not easy to see that Title
IV would necessarily anyway be the tipping factor.
Professor Guild: Indeed. It would seem to me
that this is quite the case. The objective of the Charter is not
to create new rights per se but rather to permit them to
apply correctly and properly within the European Union.
Q190 Chairman:
The new Article 4(2) of the Treaty of the European Union contains
a reference to national security remaining the sole responsibility
of each Member State. As has been stated to this Committee, do
you agree that goes wider than the current derogation for internal
security matters under Article 64 of the Treaty of the European
Community? What might be the result, if you do?
Professor Guild: This was an answer which Florian
would have answered had he still been here. I shall seek to make
a few comments about the new Article 4(2) in general. It has been
worded differently and the intention is to make it wide. That
seems to be self-evident from the wording of the two provisions.
Of interest to me a bit beyond that is not so much the shielding
of Member States intelligence agencies from the reach of the EU
law but the widening of various aspects of EU law to include intelligence
agencies—and here I would draw your attention in particular
to the way in which the proposal to widen access, for instance,
to the Eurodac database has been worded, the wording of who will
have access to the VIS (visa information system), the wording
of who will have access to the Schengen Information System II
when it ever comes forward, and we see a continual widening of
the agencies which will have access to these different databases,
not to police agencies but the wording has a tendency to be wider
to include intelligence agencies, or, at least, to use wording
with certainly leaves open the possibility that the Member States
can interpret access as being made available to intelligence agencies
as well. On the one hand, we may be concerned about Article 4(2)
in terms of protecting national security. On the other hand, we
see the gradual incorporation of powers for intelligence services
in the question of information gathering, exchange of information
and certainly in the Prüm Treaty and its continuation as
well.
Q191 Chairman:
Are you happy in that respect with the general provisions relating
to the institution of data protection of individuals?
Professor Guild: This is the problem that we
come back to: if we are going to allow the intelligence agencies
access to all of the databases, then (a) we should have made a
formal decision about it and (b) we should decide under what circumstances
and how they are able to use it. Because, while we have fairly
substantial rules which affect other of our coercive agencies,
the police, et cetera, about how they have access and when they
have access and what they can use information for, the intelligence
services tend to be less carefully regulated, and that aspect
is a matter of some concern as well as. It is not so much, "Are
we shielding our intelligence agencies?" but "Are we
bringing them in and are there consequences of bringing them in
in respect of the information which is being made available to
them?"
Q192 Lord Lester of Herne Hill:
Long ago in a case called Klass v Germany the Strasbourg
Court said that in this area there had been adequate safeguards
against the use of the powers that are conferred. Are there built-in
safeguards in the computer programmes and so on of the information
systems that make it very difficult for abuses to take place,
given that judicial remedies are not likely to be effective?
Professor Guild: Certainly we have the case
of Rotara v Switzerland—Klass revisited—which
concerned intelligence services refusing to correct incorrect
data about an individual in a database. Clearly we do not have
satisfactory mechanisms which protect the information about individuals
in databases. Certainly, if we look at jurisprudence from the
European Court of Human Rights, this has certainly been a very
hot issue about the third pillar, with sui generis rules
on data protection going into every single different provision
creating a new database, and each time the provisions appearing
to be less and less satisfactory.
Q193 Chairman:
Is that because they are in general terms saying that adequate
protection should be assured and really leaving it to individual
national countries without some single European standard? Why
is it that they are unsatisfactory?
Professor Guild: We are certainly getting the
pushing down of the problem to the Member States themselves. If
you look at the opinion of the European Data Protection Supervisor
on the latest proposal on data protection in the third pillar,
Mr Hustinx says that the level of data protection which is proposed
in the third pillar now, in the proposed framework decision following
the further watering down under the German Presidency, does not
even meet the minimum requirements the Member States are required
to comply with under Convention 108 of the Council of Europe on
data protection and the creation of databases. Mr Hustinx himself
is saying, "What is the point of this framework decision
when it does not even comply with the minimum requirements of
a 1981 Council of Europe Convention?"
Q194 Lord Lester of Herne Hill:
My Lord Chairman, the question was predicated, I think, on the
notion that there would be national remedies that might bite on
this. My concern would be my name gets put into another Member
State's information system, is circulated on the Schengen Information
System, is circulated across all the states, yet I have no real
safeguard after the event in a national court of a European court
because I do not know about it in any event. The only safeguards
could be built into the system itself, in the computer systems,
to prevent inaccurate and unnecessary information being circulated
without proper checks. My questions are really about—and,
again, I am speaking from pure ignorance—is to what extent
there has been focus on building in those kinds of machine safeguards
as well as human safeguards.
Professor Guild: To take perhaps the most experienced
of the databases at the EU level, the Eurodac database, which
contains the fingerprints of everyone who has applied for asylum
in a Member State of the European Union and those persons who
have been apprehended irregularly crossing an external frontier,
the database is a centralised database and therefore, unlike the
Schengen database which tends to be a mishmash of national databases
linked up, it is one database with an entry/exit system: fingerprints
are sent in and answers are sent out. The Eurodac Regulation was
very carefully drafted to permit access to the database only of
authorised persons for the purposes of determining whether an
asylum application had been made in the Member State. The criteria
for the database when it was being set up were exactly those to
fulfil that particular need. Under the German Presidency, a proposal
was put forward, which is being sponsored very heavily, that this
database now needs to be opened up to the law enforcement agencies,
and the terminology seems to include also intelligence agencies,
which will require a minor change in the gateways to access to
that database. The fact that there needs to be an amendment to
the regulation to do that indicates that the system has worked
very well and if anybody else wanted that data they were not getting
it.—or, at least, somebody was concerned that the legality
of access to that data was correct. There have been two reports
so far by the European Data Protection Supervisor of Eurodac and
in neither of those reports has he indicated concern about unlawful
access to the database. The database seems to work and, because
it works, now it is going to be changed.
Q195 Lord Lester of Herne Hill:
Though not in relation to Schengen, which, as you say, is a mishmash
of information coming from national databases.
Professor Guild: Schengen is a much less satisfactory
database.
Q196 Lord Tomlinson:
I always have great difficulty in reading Articles of Treaties
and feel a bit intimidated by them as a non lawyer, but, if we
look at Article 4(2) the language seems to have a certain precision
of meaning. I am concerned about the relationship between Article
4(2) and the ensuing sub-Article 4(3), where, after the precision
of Article 4(2), you then get words like "sincere co-operation",
"full mutual respect", and "the Member State shall
facilitate the achievements of the Union and refrain from any
measure which could jeopardise the achievements of the Union's
objectives." Do any of those things in Article 4(3) apply
backwards to Article 4(2)?
Professor Guild: It would seem to me that Article
4 has to be read in the whole.
Q197 Lord Tomlinson:
That is what I would have thought.
Professor Guild: Looking at the wording, as
we speak, it would seem to me that the principle of loyal co-operation
of the Member States to the European Union, as enshrined in Article
10, has been a particularly important one but it has never been
used to my knowledge to defeat a legitimate claim to the safeguarding
of national security. It would strike me as surprising should
such a result ensue. It would seem to be very difficult—
Q198 Lord Tomlinson:
If that is the only thing that is really there in Article 4(2)
why bother to have it at all if it is never used? It struck me
as either seriously qualifying Article 4(2) or redundant.
Professor Guild: In so far as you were concerned
about the safeguarding of national security, there is a series
of objectives which are sought in Article 4(2) and Article 4(3),
it seems to me, is a provision which is seeking to ensure that
Member States apply in a proportionate manner what one might call
almost derogations of 4(2). Yes, the Union shall respect essentially
state functions, including ensuring territorial integrity and
maintaining law and order and safeguarding national security.
4(3) says that, nonetheless, there is the obligation of sincere
co-operation.
Lord Bowness: It also says, My Lord Chairman,
the matter of carrying out tasks which flow from the treaties,
whereas Article 4(2) says national security is the sole responsibly
of the Member State, so it does not flow from (2).
Q199 Lord Burnett:
Can an individual apply to find out what is on the database concerning
him or her? If it is wrong, can they apply for rectification?
Professor Guild: It depends on which database.
There is certainly provision to receive information on what is
on the database on Eurodac. There are also provisions to have
an intermediary, for instance a national data protection authority,
to ensure that information on an individual is correct in the
Schengen Information System. Certainly in those two information
systems there is the right for the individual, either directly
or indirectly, to have verification that information is correct
and, if the information is not correct, to have it corrected.
When Lord Wright was chairing Sub-Committee F in the inquiry which
looked at the Schengen Information System, we provided information
from the Data Protection Supervisors in four of the Länder
in Germany, from CNIL, the Data Protection Supervisors in France,
as well as in the Netherlands. On their inspections, of the Schengen
Information System as regards their data, in some cases up to
42% of the data in the files which they were looking at were incorrect
in one way or another or the information was being held illegally.
Chairman: It sounds as if it is an area
which could merit some attention at a general European level,
as I think you have been telling us.
Lord Tomlinson: I am always very happy
to be corrected by Lord Bowness, but, after it talks about arising
from the treaties, the Article goes on to say, "or resulting
from the acts of the institutions of the Union" and in the
next paragraph it goes on to talk about "could jeopardise
the attainment of Union objectives". All those seem to be
very, very wide qualifications and that is why I really raised
the question about 4(3). I do not intend to pursue it not but
I just wanted to have that on the record.
Lord Bowness: For the record, My Lord
Chairman, I would not presume to contradict my friend Lord Tomlinson,
just to have a different point of view.
Chairman: On that happy note of unanimity,
we must all thank Professor Guild very much for her patience and
for the very helpful and very clear way in which she has explained
the position to us. Thank you very much indeed.
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