Examination of Witnesses (Questions 300
- 319)
WEDNESDAY 12 DECEMBER 2007
Mr Stephen Hockman QC, Mr James Flynn QC and Professor
Alan Dashwood
Q300 Lord Wright of Richmond:
One of the people who have given evidence said the more integrated
the area of freedom, security and justice becomes, the harder
it may prove for the UK to sustain its "pick and choose"
approach to EU home affairs, by which clearly they are referring
to opt-ins and opt-outs. Do you have any comment on that?
Professor Dashwood: That is a political judgment
of course.
Q301 Lord Wright of Richmond:
Indeed.
Professor Dashwood: I suspect it may very well
be true in the sense that a higher political price may have to
be paid for not opting in. So far, the United Kingdom has opted
into a significant proportion of the type of measures to which
this mechanism applies but it can be said—and this moves
to the second part of the question as to whether the mechanism
entails problems—that up until now the experience has been
pretty satisfactory. I am not aware that the United Kingdom has
encountered difficulties with its EU partners which means that
they are finding us more than usually irritating on this account.
Q302 Lord Wright of Richmond:
My second question relates to an organisation called Frontex.
I do not know whether you have had any experience of it? It is
the organisation based in Warsaw which tries to facilitate co-operation
between the EU's external frontiers.
Professor Dashwood: This is the Border Agency.
Q303 Lord Wright of Richmond:
Indeed, with which we have a rather anomalous relationship, which
is to say that we participate quite fully both in its meetings
and in its operations, but still do not have a vote on its management
board.
Professor Dashwood: Yes.
Q304 Lord Wright of Richmond:
So far as you understand the situation, will it change as a result
of the Reform Treaty?
Professor Dashwood: I am afraid that it will
not. I have been very concerned with Frontex, the border agency,
because I have been acting for the United Kingdom in the litigation
that relates to the border agency regulation and to passports.
Q305 Lord Wright of Richmond:
I apologise for implying that you might not know what it was!
Professor Dashwood: Not at all. I always have
to think carefully because, I do not think of it as Frontex, but
civil servants I talk to do, so it takes me a moment to connect
up with that. The Frontex issue is one that goes to the position
of the United Kingdom under the Schengen Protocol, not under the
Title IV Protocol. The litigation has arisen because the Council,
on the advice of its Legal Service, decided that the Border Agency
Regulation and also the Passports Regulation were measures building
upon the Schengen acquis and the Council and the Commission
and a number of Member States, but not all of them, take the position
that the United Kingdom is only entitled under Article 5 of the
Schengen Protocol to opt into so-called Schengen building measures
if it already participates in the underlying Schengen acquis.
The Border Agency is regarded as something that is very closely
connected with the management of the Schengen external border,
and for that reason the UK was excluded from participating in
the adoption of the Regulation and is therefore unable to be formally
a member; although, as you rightly point out, it is informally
involved in the running of the Agency, as indeed it was previously
in the arrangements that applied before the adoption of the Regulation.
We will only able to get into the Border Agency if the United
Kingdom wins its case, which at the moment, in a sense, it is
half-way to losing, because the Advocate General has concluded
against us.
Q306 Chairman:
Would the position be better or clearer under the proposed Reform
Treaty?
Professor Dashwood: It might conceivably. If
I can move on to the Schengen Protocol, there are two provisions
that specifically concern the United Kingdom: Article 4, which
is the procedure for opting in to the Schengen acquis,
the whole body of Schengen measures; and Article 5, which is about
participation in Schengen building measures. Article 4, which
relates to the Schengen acquis, requires a unanimous decision
by the Council to let in the United Kingdom if we want to become
a part of the acquis; and we have in broad terms opted
into quite a lot of it—into the part of the acquis
that relates to police and security matters and the aspects of
the Schengen information service relating to those matters. (The
United Kingdom has not got into the parts of the acquis
concerning the abolition of controls at internal borders and the
movement of persons.) We did that on the basis of a Council Decision
that was taken in 2000. One of the provisions of that Decision
related to the procedure for the UK's participation in Schengen
building measures. I will come to that in a moment. Under Article
5 of the Schengen Protocol—and there is a new version of
Article 5 at 18(g)—paragraph 1 is substantially unchanged.
That lays down the procedure for the United Kingdom's—I
am trying to avoid the word "opting in" because it is
procedurally distinct from the Title IV Protocol; the paragraph
operates as a special form of enhanced co-operation. If the United
Kingdom and Ireland do not notify their wish to participate in
a Schengen building measure, that automatically triggers an authorisation
to the other Member States to proceed by way of enhanced co-operation.
Paragraphs (2) to (5) are new, and their purpose is to neutralise
the provision that I referred to in the Decision of 2000, which
said that with respect to measures building on the parts of the
Schengen acquis which the United Kingdom had opted into,
we are irrevocably deemed to have given notice under the first
paragraph of Article 5. That provision of the decision, paragraph
8 of Article 2, locked the United Kingdom into any Schengen building
measures relating to part of the Schengen acquis which
we had opted into. The purpose of paragraphs (2) to (5) is to
enable the United Kingdom to break out of that prison. Paragraph
(2) says that, where the UK is deemed to have given notification
pursuant to the Decision of 2000, it may nevertheless notify the
Council in writing within three months that it does not wish to
take part, and as from that notification the procedure for adopting
the measure will be interrupted. The Council will see whether
it can reach a decision as to any necessary adaptation of the
decision authorising the United Kingdom's participation in the
underlying acquis. If it cannot, then it is possible for
the matter to be referred to the European Union Council. If the
European Council is not able to reach a satisfactory decision,
then the responsibility falls back on the Commission. It would
be finally the Commission that would have to decide how the underlying
acquis would need to be adapted to take account of the
fact that the United Kingdom has decided not to participate in
this particular building measure.
Q307 Lord Wright of Richmond:
So it potentially gives the British Government more freedom of
movement.
Professor Dashwood: It does, yes. It is rather
similar in its operation to the new Article 4a of the Title IV
Protocol, but there is nothing about inoperability.
Q308 Chairman:
We move to criminal justice and policing. The new Chapter IV of
the Treaty sets out the detailed areas of competence in criminal
law. Can I ask our witnesses whether they think the scope for
co-operation is wider under the proposed Treaty than under the
existing Treaty?
Mr Hockman: My Lord Chairman, I think it is
for me to try to assist you on this. Perhaps I could to some extent
treat questions 4, 5 and 6 together because they do to a degree
overlap. As you will be aware, the key provisions here are what
you will have as Article 69(e) and 69(f), or in the December version
69(a) and 69(b). Broadly speaking, one might say that Article
69(e) deals with Community competence in procedural matters, and
Article 69(f) deals with Community competence in substantive matters.
If I can start with competence in substantive matters, which is
69(b) in the new notation, you will see that the Community will
have the right to establish minimum rules concerning the definition
of criminal offences and sanctions in the following areas—and
there are two main ones, sub-paragraphs (i) and (ii). The first
is the area of particularly serious crime with a cross-border
dimension, and the areas are specified to include such matters
as terrorism, drug-trafficking and so on; and then a second area
is in the area where there have already been harmonisation measures,
and the approximation of criminal law is necessary to ensure effective
implementation of the policy underlying harmonisation. That is
the regulatory area, the area previously covered by such cases
as the two identified in question 6; that is the environmental
area typically, where there has already been harmonisation and
where the European Court of Justice has already said that it is
permissible for the Community to legislate in relation to criminal
measures in support of the policy of harmonisation. Looking at
that substantive area, perhaps one could add two specific comments.
First of all, in answer to question 6, we take the view that Article
69(B)(ii) does resolve the question raised in those previous European
Court of Justice cases, and does confirm the Community's right
to legislate in those areas; and that probably, but perhaps not
definitely, the power will now be contained in Article 69(B) rather
than deriving from previous jurisprudence. I think that that was
the advice you had the other day from Professor Shaw from Edinburgh,
and we think that that is probably right, if only on the basis
that it would seem rather odd if express provision is made in
the Treaty but with safeguards, but then those safeguards could
immediately be circumvented by returning to the previous jurisprudence,
to which the safeguards do not apply. Whether if ever the matter
came before the European Court, that sort of argument would ultimately
prevail; there may be a slight question mark over that, but the
authoritative view seems to be that Article 69(e) is now the defining
source of this sort of power. A question that we posed to ourselves
but perhaps did not definitively answer is this. In the ship-source
pollution case it was said that when it comes to Community measures
indicating what sort of penalties can be imposed, the Community
can legislate in a broad way and can say that the penalties should
be sufficiently dissuasive to ensure effective implementation
of the harmonisation policy; but there was, so to speak, a self-denying
ordnance in paragraph 70 of the judgment in which the court held
that the determination of the type and level of criminal penalties
did not fall within the Community's sphere of competence. I think
everybody has regarded that as being an appropriate self-denying
ordnance on the Community's behalf. A question could arise as
to the meaning in this context of the phrase "establish minimum
rules with regard to sanctions". Is that intended to convey
the same sort of relatively limited power, or does it go further?
Could the establishment of minimum rules extend to defining minimum
or maximum penalties; or should that phrase be interpreted in
the light of what the Court of Justice has said in the ship-source
pollution case? The answer to that question may not be quite so
clear. I think I was disposed to say that it should be interpreted
in accordance with the previous jurisprudence, but Professor Dashwood,
to whom I defer on this and other matters, was a little less sure;
so we flag that up as a possible area of concern without wanting
to overstate the point. That is on the substantive side. On the
procedural side, this is Article 69(e), where there is similar
phraseology, establishing minimum rules in various procedural
areas, and based, as you can see from 69(e)(2) on what is called
"the principle of mutual recognition of judgments".
You asked the question, are Member States in agreement as to what
the principle of mutual recognition involves. I am not sure that
we know the answer to that. It is a difficult question because
I am not sure that the concept of mutual recognition itself is
a particularly precise one. If it means recognition of judgments
and decisions of the courts in a fairly narrow and strict sense,
which presumably is one meaning, then it occurred to us that the
following issue might arise. We have asked ourselves: in what
context would the recognition of a decision by a foreign court
be relevant in a criminal context? Of course, under our current
criminal law the previous convictions of an accused person are
increasingly relevant because we recognise increasingly the relevance
of the defendant's previous convictions as being at least potentially
relevant in some situations to the determination of his culpability.
The question could arise, I suppose, as to whether a conviction
is conclusive evidence of his guilt of a previous offence, or
whether it is merely evidence which it is open to him to rebut.
Under our law it is open to an accused person to say, "I
may have been convicted of committing a rape five years ago, which
you say is relevant to the charge that I face now; but I was not
guilty of it and I dispute it." That issue would need to
be resolved by the court of trial. One would hope that that would
be the situation and that it could never be suggested that the
record of a conviction could be conclusive; but I do not know
whether that risk might arise and whether it would be said that
the minimum rules could include the possibility of making the
record of a conviction conclusive evidence; I think we here would
find that a little surprising if that were to be suggested. Those
are some initial comments. They may or may not go some way towards
answering questions 4, 5 and 6.
Mr Flynn: The reference to mutual recognition
of judgments is, as it were, an aspiration and that is the guiding
principle, and that is what should be worked towards; but, obviously,
there is a lot of legislation to be undertaken and probably some
rather difficult discussions to be had under paragraph (a) of
part 1 of Article 69(e).
Q309 Lord Lester of Herne Hill:
I am not a criminal lawyer but I was looking at Article 69(e),
paragraph 2. It tells us that the rules must take account of differences
between legal traditions and systems of Member States; so they
have, as it were, a common law tradition and Union inquisitorial
systems and recognise that there is diversity. It then says: "They
shall concern mutual admissibility of evidence and rights of individuals
in criminal procedure"—and those are the first two
examples. I take it that that means that in the law-making function
of the Treaty, matters like hearsay evidence and rules about the
admissibility of hearsay evidence as between a common law system
and a civil law system would be in play; or say the rights of
individuals in criminal procedure, where you have inordinate delay
in a criminal trial—say ten years after the facts. In England
the remedy would include quashing proceedings, stopping them because
you cannot have a fair trial; but in France the remedy would not
be that; it would be compensatory only, as I understand it. Therefore,
would it be right to say that there would be some desire, to take
those two examples, to harmonise across completely different legal
traditions in those matters?
Mr Hockman: Yes. It seems to me that a lot may
turn on what the phrase "establishing minimum rules"
means. Implicit in what you are saying—and I respectfully
agree—is that that phrase makes it quite difficult to apply
it in the substantive context, but it is even more difficult to
apply it in a procedural context. To take either the hearsay example
that you give or the delay example that you give, how can one
find the lowest common denominator between the right to have the
proceedings stayed for delay, and the right to have compensation?
I respectfully agree that it is not at all easy to see what minimum
you could arrive at in that situation. Hearsay might be slightly
easier of course: our law increasingly recognises the possibility
of hearsay being relied on, so a minimum standard there may be
something that is easier to get at.
Q310 Lord Lester of Herne Hill:
When it says "adoption of minimum rules referred to in this
paragraph shall not prevent Member States from maintaining a higher
level of protection", it means that one looks at the lowest
common denominator of mutuality but expects diversity to continue
where, say, we give higher protection to the remedies for the
effects of delay than some other systems will do; and therefore
there will continue to be substantial diversity in aspects of
criminal procedure between, say, our system and the French system?
Mr Hockman: That would certainly seem to be
right, although that phrase presents more problems, does it not,
in relation to the hearsay issue, I suppose? Once you have accepted
that hearsay is admissible, then it is rather harder to see how
you could go back on that and introduce a higher level of protection
for an accused person.
Q311 Lord Lester of Herne Hill:
The only way in which one could get, as it were, equal protection,
would be if the Strasbourg Court of Human Rights, in a French
case—to take my hypothetical example—were to require
French procedure to conform to Article 6 of the European Convention
in a similar way to compliance by the UK; in other words, the
other European Court in Strasbourg could perform that kind of
a function to raise the level of protection across State A and
State B. It could not be done through this but it could be done
to raise levels rather than to lower them presumably through the
other European system!
Professor Dashwood: I would have thought that
it would be possible for the Community to introduce a rule comparable
to the Strasbourg principle that there is a right to a hearing
within a reasonable time, and that beyond that point the proceedings
should be stayed. That would be something that the Community would
be empowered to do by this provision.
Q312 Lord Lester of Herne Hill:
But we would not like it if the Charter of Fundamental Rights
were used for that purpose in respect of the United Kingdom!
Mr Hockman: That issue may raise other problems.
Professor Dashwood: This drafting technique
empowering the Council to adopt minimum rules and then allowing
the Member States to go much further is actually used elsewhere
in the Treaty as quite a familiar approach in the context of social
policy, protection of the environment and so on. It may be more
delicate in this context, but it is a similar logic.
Q313 Lord Blackwell:
Can we move to enhanced co-operation and the interaction, if there
is one, between these articles and the development of a European
public prosecutor: to what extent will a European public prosecutor,
if it evolves, act as a force for establishing procedures and
rules of evidence that de facto become harmonised? Second,
even if the UK does not participate in a European public prosecutor,
would a European public prosecutor be able to use the European
arrest warrant to arrest people and charge people in the UK?
Mr Hockman: I do not know how complete an answer
I can give you to that question. I see from Article 69(2) that
the public prosecutor's office is going to be responsible primarily
for investigating prosecuting and bringing to judgment the perpetrators
of certain offences, and I suppose the extent to which he or she
engages in policy-making will depend a little bit on the individual.
It may not be a very helpful point to make, but I do not know
that our own Directors of Public Prosecution have seen it as their
responsibility to engage very much in policy-making: on the whole
they have taken the view that that is not really their job, that
they should remain reasonably objective and neutral in policy
terms.
Q314 Lord Blackwell:
Presumably they are not bound by any national prosecuting code
because they are operating on behalf of the European Union, so
they must in a sense evolve their own procedures.
Professor Dashwood: I am sure that must be right.
Mr Flynn: I think that is right, My Lord Chairman.
If it is right, it is perfectly possible that the European prosecutor's
office, if it set up the approach that is taken by that office
to certain aspects of criminal procedure, would in effect become
at least an incentive, a sort of benchmark for the national law.
That is perfectly possible and perfectly foreseeable.
Professor Dashwood: It is worth making the point
that the function of the European public prosecutor is very specific;
it is to combat crimes affecting the financial interests of the
Union. These will be defined by legislation. Paragraph (2) is
the paragraph that talks about the office being "responsible
for investigating, prosecuting and bringing to judgment, where
appropriate in liaison with Europol, perpetrators of and accomplices
in serious crimes affecting more than one Member State and of
offences against the Union's financial interests as determined
by the European law." This regulation has yet to be adopted.
The policy underlying this initiative, this innovation, is the
sense that in some Member States at least, the authorities have
not been very diligent in prosecuting offences that have to do
with the interests of the Union because they do not have an impact
on national interests. The purpose of it is to ensure that there
will be somebody whose job it is to get these cases before a judge.
Q315 Lord Blackwell:
With respect, I am not an expert on this but paragraph 4 of the
same article says that while it may be set up in that way, it
may be extended to cover any crime.
Professor Dashwood: True.
Q316 Lord Blackwell:
I realise it is more speculative, but to the extent that that
became a broader prosecuting service, it seems to me that the
effect would become a way of harmonising—
Professor Dashwood: Of course, it would have
a much wider scope. This could only happen as the result of a
unanimous decision by the European Council.
Q317 Lord Wright of Richmond:
Can I ask a general question? I do not know if any of you have
views on the practical effects of all these provisions in the
Reform Treaty? One of our witnesses has said that it seems to
provide an impetus for more legislative initiatives in EU criminal
law. Another actually said to us—although this was denied
by a subsequent witness—that he or she foresaw a rash of
asylum cases coming before the European Court of Justice.
Mr Hockman: For my part at least, it is necessary
to keep one's feet on the ground in relation to this.
Q318 Lord Wright of Richmond:
I will try!
Mr Hockman: Substantively there are two main
areas. One is the use of the criminal law to back up regulatory
policy, for instance in the environmental area. That is already
extensively part of our law. It is saying it is not really the
direct use of criminal sanctions against behaviour in the sense
of behaviour that is contrary to the Ten Commandments and so forth;
it is in areas where the activity is permissible but only with
certain regulatory limits, and the criminal law is used to ensure
that people comply with those regulatory limits. That is something
that happens in our own jurisdiction very commonly already and
it is something that was already authenticated in the European
Court in two earlier cases, and on the face of it it ought not
to have caused major practical problems. In the other area, one
is dealing, as I read it, with particularly serious crime with
a cross-border dimension. One can certainly see why the Community
would want to have competence in those situations. Of course,
if there is a rash of cross-border crime, then there may be a
rash of cases, but I do not know that—you know, it will
be driven by the need rather than anything else. That would be
my at least partial answer.
Mr Flynn: I would remind ourselves, My Lord
Chairman, since we have not used the phrase, that this is where
the emergency brake comes in. For Member States to object to these
proposals, they have their own measures in addition to the UK
Title IV Protocol.
Q319 Chairman:
That takes us very neatly on to enhanced co-operation and the
fact that the proposed Treaty would facilitate closer integration
through automatic authorisation for enhanced co-operation after
the emergency brake had been used. Do you view that as desirable?
When you are answering that question, could you deal with the
question 188(l), the external competences of the Union and Member
States that are not party to the enhanced co-operation?
Professor Dashwood: I think, My Lord Chairman,
that if this were a problem it would be a relatively minor one.
The emergency brake is likely to be used very infrequently. That
has been the experience of these emergency brakes. In one form
or another they have been present in the Treaty since Amsterdam,
and they are hardly ever activated. I do not think this is an
issue. The question of whether enhanced co-operation may be troublesome
is a much wider question than in the context of the emergency
brake. Unfortunately, it is a question that can only receive a
speculative answer because although, again, in one form or another
enhanced co-operation has existed ever since Amsterdam, it has
never been used to date. The only real experience we have of the
functioning of an enhanced co-operation mechanism are the Schengen
and Title IV Protocols which are in a sense enhanced co-operation
at the level of primary law. I suppose the cases that I have been
involved with underline one kind of problem with enhanced co-operation,
which is defining its boundaries and preventing spill-over. By
that I mean that a group of Member States establish an enhanced
co-operation; and somebody comes forward with a proposal for a
further measure which the members of the group believe to belong
within the co-operation, whereas Member States that do not want
to join the co-operation feel that they would like to participate
in the measure. I think that is the kind of problem that would
be encountered here, as in other areas where enhanced co-operation
is used; but it is simply the consequence of adopting this flexible
mechanism. If you are going to have differentiation, you are going
to have to draw lines, and it is sometimes going to be difficult.
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