Examination of Witnesses (Questions 387
- 399)
WEDNESDAY 9 JANUARY 2008
Ms Diana Wallis MEP, Mr Philip Bradbourn MEP, Mr
Klaus-Heiner Lehne MEP, Mr Manuel Medina Ortega MEP, Baroness
Ludford MEP and Mr Michael Cashman MEP
Q387 Chairman:
Thank you very much for seeing us. I am Jonathan Mance, Chairman
of Sub-Committee E. Perhaps I could invite the Members of the
European Parliament to introduce themselves. Diana Wallis I am
glad to know very well.
Ms Wallis: Thank you, my Lord Chairman. I am
Diana Wallis. I am a member of the Legal Affairs Committee and
also a Vice President of the Parliament.
Mr Bradbourn: I am Philip Bradbourn. I am the
first Vice Chairman of the Justice and Home Affairs Committee.
I am a Conservative member.
Baroness Ludford: I am Sarah Ludford. I am a
member of the Civil Liberties, Justice and Home Affairs Committee
and a Member of the House of Lords.
Mr Cashman: I am Michael Cashman, a Labour member
of the European Parliament and a member of the Labour Party National
Executive Committee. I am also on the LIBE Justice and Home Affairs
Committee as well as being first Vice President of the Petitions
Committee, which is the direct interface between the citizens
and the institutions.
Q388 Chairman:
I do not know whether any one of the members of the European Parliament
here wishes to make a more general statement before we go to the
questions. We have taken a good deal of evidence which we are
proposing to feed into a report that the EU Select Committee of
the House of Lords has asked us to make on the Treaty with a view
to issuing that report before the House considers the bill which
is going to go to Parliament to give effect to the Treaty. You
can assume that we have looked at most of the issues in some depth
already. The first thing we want to address is the scope of Chapter
IV in the criminal justice and policing area and ask you to compare
it with the scope of co-operation under the existing Title VI
and identify any particular areas where you think there may be
an expanded jurisdiction or where you think the new wording may
have a real benefit or impact. We note that it is a more specific
wording and a wording which no longer uses the French word notamment
or "in particular" and therefore confines itself to
specific areas but has the considerable benefit of clarity in
that respect. Is there more to be said?
Baroness Ludford: I would not want to second-guess
people like Steve Peers and Elspeth Guild who have given evidence
to you. I think it is a bit of a curate's egg. On the one hand
the list of substantive areas of criminality has been expanded
to ten from three, beyond terrorism, drug trafficking and organised
crime, but on the other hand you have this apparent limitation
of the need to facilitate mutual recognition, although that has
been a strong theme anyway. It has been taken as read since the
Treaty of Amsterdam, and in particular the Tampere Conclusions
of 1999, and we have been assuming that we have worked within
those parameters. On the other hand you have got the specific
mention of harmonisation of certain procedural rights, which I
think some of us would strongly endorse because it is something
that this Parliament has thought particularly important and, of
course, there has been a failure so far to get agreement on that
subject, so that is a good thing. Looking back over the last decade,
one would say that probably the Council and Member States have
not really felt the constraints. I am not aware of anything where
they have said, "Oh, good heavens, we are straying outside
the criminal law legal base" and were prevented from doing
something, so I do not personally see that there is a huge change.
One notes the difference in wording but I think it is quite marginal.
Q389 Chairman:
Bearing in mind that qualified majority voting is now going to
apply in relation to the specific areas, is this going to enable
progress to be made, for example, in the field that you mentioned—rights
of individuals in criminal procedure?
Baroness Ludford: One hopes so. I think we assumed
that there would be a qualified majority on the framework decision,
and, of course, there was strong support in the Parliament, so
one would expect the Parliament to agree in co-decision.
Mr Bradbourn: Not by everybody.
Baroness Ludford: Well, strong majority support
anyway, if not consensus, so my personal assumption is that yes,
it would make life easier for progress on some of the more civil
liberties measures.
Mr Cashman: Sarah referred to the issue of the
curate's egg. It was always going to be that because what we were
looking at was 27 Member States trying to find a way of going
forward, and hence the importance of the UK opt-in/opt-out, which
I think is a brilliant position to have bargained. I do not think
we have given enough credit to our negotiators in that those countries
that wish to go ahead may go ahead and the UK will still have
in JHA its ability to protect its own special interests where
it feels appropriate, and also we have the luxury of opting in.
Where I disagree with Sarah is perhaps a perceived greater influence
of the ECJ in these matters of individual rights. In so far as
they refer directly to EU law, yes, but again one must look at
the Protocol that the UK has achieved on the application of the
Charter in relation to UK national law in that it does not create
any new rights and rights cannot be struck down within the UK
by the ECJ. In parenthesis, I am pleased about the whole role
of QMV. Co-decision means that for the first time these matters
will be debated openly in a directly elected parliament, the European
Parliament, and that again enables us to work with the Council
and ensure that deals that are reached are not reached as they
are currently, behind closed doors, where votes and debates are
held in secret. There will be direct reference to the debates,
to the agreements in Council, in the Parliament and I believe
that this will bring about greater accountability in our national
parliaments, so I welcome the widening of the scope with, from
the UK's position, the caveat of the UK opt-in/opt-out on the
JHA measures.
Q390 Lord Jay of Ewelme:
Can I just ask whether you think the Council will take the same
view as to the relationship with you as you have just taken as
to the relationship with them, ie, greater transparency, greater
co-operation and a better result?
Mr Cashman: With all institutions, and the Council
is an institution, the cultural changes happen osmotically. If
they want an agreement with us on a first reading deal we will
see a greater degree of openness and transparency, and, of course,
we always have Regulation 1049/2001 on public access to all documents
held, received or produced by the three institutions and the agencies
set up by them, so that where there is a denial of openness and
transparency between the institutions citizens themselves can
access documents, agenda items, meeting notes, et cetera, which
were made and produced for the Council. However, again, what I
am anxious to do through this process is to make our electorate
aware that all things European are not imposed by Brussels. They
are agreed by democratically elected politicians as ministers
in governments, and once we get that message firmly in the open
where we see the Council acting in conjunction with the Parliament
more and more we will see Members of Parliament asking the minister
or the secretary of state to explain why they agreed to a position
that was not originally the UK's position—accountability,
and I believe through this enhanced process we will get that.
Baroness Ludford: My Lord Chairman, Michael
got on to the opt-outs. I do not know whether you want to come
back to that later as it is a separate question, but I am glad
to say that we are showing early our diversity of view because
I would strongly disagree with Michael's position. I think it
is very sad, and unnecessary, that the UK felt it necessary to
extend the opt-out to the policing and criminal law side. I am
not persuaded of the necessity for that, particularly as you have
the possibility of the emergency brake, as it is called, where
a Member State believes that a measure would affect fundamental
aspects of its criminal justice system, and to the extent (which
I personally believe has been overblown) that there have been
threats to our common law system, or at least there would be under
QMV, I would have thought that that would provide a serious level
of protection, so I have not been persuaded that we need the opt-out.
I think it has also not been made clear to the public that it
is a double-edged sword in the sense that we can be pushed out
as well as opting out. As Steve Peers, I think, made very clear
in his evidence to you, if we do not sign up to an amended measure
we can be shown the door on an existing measure if it becomes
inoperable, and there are slightly different but reasonably similar
provisions under both the Schengen Protocol and the so-called
Title IV Protocol. It might have quite a high threshold, as I
think Steve Peers said, but I think it is most likely to come
in as something like a SIS III, a Schengen Information System
III, where you could not expect all the other Member States to
apply a third generation Schengen Information System among themselves
and then apply a second generation one to the UK. The UK would
be told, "I am sorry. It is not operable for you to stay
in at the level of SIS II while the rest of us go on to a SIS
III". There is a penalty here; it is not just a one-way street.
The other angle, which again perhaps we do not want to shout about
too much within the Parliament but I just put down a marker and
we may come back to it later, is the threat to the position of
UK MEPs and Irish and any other opt-out MEPs, especially perhaps
if you have an enhanced co-operation measure. What is going to
be the position?
Q391 Chairman:
The West Lothian question, is it?
Baroness Ludford: Yes, the West Lothian question.
Mr Cashman: We already have it.
Baroness Ludford: Last June was the first time
it happened, when there was all the talk at the summit about the
UK red lines and extending the opt-out. Nobody within the Civil
Liberties Committee had ever suggested that my position as the
rapporteur on the Visa Information System, which I have been since
late 2004, was anomalous, and indeed both the shadow rapporteurs
for the two main groups were Michael Cashman and Timothy Kirkhope,
two other Brits, which was quite funny really considering that
Britain was not opting into the Visa Information System.
Mr Cashman: That is a good reason to have us
working on it.
Baroness Ludford: But last June for the first
time a teasing but a slightly barbed teasing remark was made.
It is something the Parliament is probably going to have to address.
The constitutional theory, of course, is that we are all equal,
but politically the idea of a UK MEP being rapporteur on a measure
where the UK is not opting in, because that opt-out has now become
so large and not just Schengen related—
Q392 Chairman:
It is one of the points that Diana Wallis makes right at the end
of her submissions to us.
Baroness Ludford: Yes, and I think it is going
to be not such fun for us on the Civil Liberties Committee.
Q393 Lord Lester of Herne Hill:
Following that up, I asked a previous witness about the problem
of the member of a club who says, "I want to have my cake
and eat it at the same time, being a preferred member and an unpopular
member". If you think of, say, the procedural rights for
the accused problem and the failure to reach agreement, unfortunately,
on that, I would be interested to know whether our influence,
within the European Parliament or the Council, is diminished or
not in real terms by the existence of these very broad opt-outs.
Obviously, we made a huge contribution in the European Human Rights
Convention on procedural rights, in particular since Articles
5 and 6 are called the Anglo-Saxon provisions, so I would be very
interested to know whether we are at risk of diminishing British
influence in exporting good procedural rights across Member States
because of the opt-outs or whether that is a highly theoretical
problem and in practice unlikely to matter very much. It is really
Mr Cashman, who gave such a lyrical and attractive account of
the brave new world, that I would like to ask the question of
because it seems to me there must be a price to be paid in real
terms and I do not know how big a price it is.
Mr Cashman: First of all, I think the difference
in relation to cake and eating it is that we are paying for the
cake to be made. It is not as if we are asking for something and
not contributing. The issue of fundamental human rights is expressly
there, as you say, in Article 6 and in Article 7 and I just wish
that we had the courage within the Council and within the Commission
to enforce Article 6 and Article 7. I do not think our role is
diminished or will be diminished. Indeed, going back to Sarah's
point and Diana Wallis's point about the issue of will we as parliamentarians
be diminished because of the so-called West Lothian question,
through my aside I said that we already have the West Lothian
problem here whereby we legislate and we interfere, we involve
ourselves, in matters over which we do not have direct competence
within the Parliament. However, what I like to see in this place
is that we build up a reputation based on our expertise and based
on objectivity. It is interesting. Sarah referred to the Visa
Information System. I was the Parliament's rapporteur on a co-decision
dossier, which is the Schengen border code, the conditions of
entry into and out of the Schengen area and the conditions upon
which Member States re-impose their borders. One of the arguments
that were put forward by those wanting me to have the dossier
was that I would come to it with a really objective attitude because
the UK is not in Schengen, so I do not feel that we are losing
influence. Indeed, on the issues of opt-in and opt-out, the emergency
brake, there are only so many times you can apply an emergency
brake before it stops being an emergency brake; it merely becomes
a brake that one Member State or another is continually using.
I like the fact that we can look at each of these issues on a
case-by-case basis, looking at operability, looking at whether
it suits us or not, because every other Member State does exactly
the same. The fact that we have moved to QMV in these very important
issues means that increasingly we can decide to opt in or not.
I do not see it as being negative; I see it as being positive,
and if I give a lyrical analysis of a bright new world it is because
I think it is a bright new world that has been in existence for
over 50 years and is suddenly coming into maturity with real powers
in the European Parliament. I do not want us to do anything in
any Member State to diminish the enormous benefits that have been
derived from the establishment of the European Community and the
European Union.
Q394 Chairman:
Can I just take everything out of order because I have ascertained
that Diana Wallis has to go very shortly and I think she would
like to say something on opt-outs and civil law.
Ms Wallis: I do apologise to colleagues but
I would like to have the chance just to say something very briefly
about opt-outs and civil law, though I am pleased to see that
my colleague from the Legal Affairs Committee, Klaus, is also
here. Very quickly on opt-outs, I have submitted some evidence
in writing which I hope will enlarge upon what I am about to say.
I think there is a real problem, especially in the civil law area,
and I would put it like this. We as parliamentarians are directly
elected and we come from constituencies where we represent people.
We are informed by those people's experience of the European Union—how
it works, how it does not work, what their daily problems and
experiences are, and we bring that experience to our legislative
work here in the Parliament. That is how representative democracy
works. How are we to make that system function if we are dealing
with legislation which will not apply to our constituents? It
is a nonsense. It drives a whole cart and horses through the idea
of representative democracy. We are, as it were, doing our legislative
work in a void because we are making law not for those that we
represent, and I have a real problem with that, and what is more,
as Sarah has already said, we are beginning to feel in some areas
that our colleagues from other countries have a real problem with
us taking reports where our country is not opting in. We have
experienced a rash of these issues in the civil law area in the
last year—Rome I, maintenance obligations, and Rome III,
where the failure to opt in has been made as a choice by the Government.
Again, I think this is problematic and it is problematic as we
move forward into the future because once you are in the civil
law area and you ask the question, "What will be the priorities
for the Parliament in civil law in the future?", certainly
we will continue with the matrimonial/family law area, there is
a huge agenda there to do with contractual law, company and commercial
law, consumer law, road traffic law, all the issues to do with
the internet and e-commerce will come up and face us again. What
is the common theme there? The common theme is the relationship
with the internal market. The internal law market is the part
of the European Union that, as I understand it, the United Kingdom
is very keen on, but if we fail to engage in the area of civil
justice we begin to undermine our engagement in the internal market
and, more importantly, the engagement of our citizens and our
enterprises, and we spoil it not just for ourselves but indeed
for other people trying to do business in our own country and
hoping to have the benefit of a common justice system that works
throughout the internal market, so the price we pay for these
opt-outs is potentially pretty huge. I am sorry; I am going to
leave you.
Q395 Chairman:
Just before you go can I just say this, and I ought to disclose
that I have an involvement in a different capacity as a member
of the Lord Chancellor's Advisory Committee on Private International
Law and therefore I have seen through that the Rome I negotiations
which you have mentioned. May it not be a bit unfair to say that
the United Kingdom failed to engage in those? It did not opt in
because it was so engaged and regarded its interests as so engaged,
and as far as I can see it has been very engaged in the negotiations
which have led to a conclusion. One cannot predict ministerial
decisions about whether to opt in now but, having negotiated in
good faith, a conclusion has been reached which appears to the
negotiators to be satisfactory. I was not one of the negotiators,
of course, but that is the alternative picture which might be
put.
Ms Wallis: That is the alternative picture and
that is the picture that I am sure Michael would present.
Mr Cashman: I would, yes.
Ms Wallis: The problem with that is that I think
you can pull that trick once, if I can put it that way, but I
do not think you will be continually able to do it as we progress,
and if we keep doing that we are irritating and annoying our partners.
Baroness Ludford: You sort of negotiate and
lobby from the outside. You say you are not opting in but you
do a lot of lobbying, particularly of MEPs and stuff, and then
you --- it is bizarre.
Ms Wallis: Rome I has raised all the issues
and shown us the problems. We got away with it with Rome I. We
will not get away with it again is my view, and I see one of my
German colleagues is nodding. I really have to catch a train,
having thrown my grenade!
Q396 Lord Lester of Herne Hill:
I really want to say something, disagreeing and putting a question,
before Diana leaves but if you have to leave now I will not.
Ms Wallis: I am sorry, I must.
Lord Lester of Herne Hill: You know what
it is about—free speech and privacy and tort law and harmonisation.
I just want to say that I think it is much more difficult and
complicated than perhaps—anyhow.
Q397 Chairman:
Thank you very much for coming, Diana. I am sorry, Mr Bradbourn.
I should have invited you to speak a long time ago.
Mr Bradbourn: I preface any remarks I make by
saying that, obviously, you all understand that with the political
perspective from which I look at these things most of the issues
you are covering in this area I would almost reject out of hand.
Having said that, we have to deal with the reality that we have
in front of us and there are a couple of general points I want
to make to follow up what Michael Cashman said initially in his
comments and then perhaps a couple of points which appear to be
tangential but I think do have a bearing on your basic approach
to looking at these issues. First, I want to comment on Michael's
initial reactions, and that is to do with the opt-outs and the
protocols. I just wonder—and in a sense it is wondering
aloud—whether these protocols that the UK has negotiated
will be strong enough in the final result to withstand ECJ judgments.
That is the problem and the difficulty I have. There has been
a lot of talk, certainly around the general EU circles here about
whether in some areas the protocols will not stand the strength
of judgments down the line, so to speak. That is a more general
comment. Specifically, the one big concern I have about a lot
of the issues you are covering here is about data protection because
that to me is key to where we see any co-operation, whether that
be through the new Treaty or the existing Treaties, or indeed
just through open intergovernmental co-operation. It is where
we go with data protection. On that basis, if I can refer back
to the Treaty of Prüm, which was, as we know, agreed last
year just before the agreement on the Lisbon Treaty, in the analysis
that was done on the Prüm Treaty by the European Data Protection
Supervisor, he drew attention to the fact that a lot of the requirements
to exchange data undertaken through the Prüm Treaty did not
provide sufficient protection to individual citizens. My carry-forward
on that, if you like, is to say when and if we go down the road
of police co-operation, judicial co-operation and so on, where
are the safeguards for the individual from information being gathered
from databases, be it DNA, be it personal computer data or whatever,
to be able to check that data, to check its accuracy and to challenge
when personal data is being exchanged which may not be directly
pertinent to the matters being investigated? That is to me a crucial
and key issue across the piste with all of this. The second point
is this, and this is a tangential thing because one of your colleagues
asked about the issue of where MEPs see their role could be enhanced
or changed or improved in any way: When I look at some of the
issues that we have now coming before us, the comment I would
like to make is to do with our own procedures in Parliament, because
we agreed some time back something called the comitology arrangement,
that is to say how the institutions relate to one another post
the legislative period. We have had a very difficult time trying
to preserve our right to review existing legislation and to propose
changes to that legislation because, of course, under the existing
Treaties the Commission, as guardian of the Treaties, has the
sole right of the initiative of legislation. What we have done
in Parliament, and I make a personal comment here, is hamstring
ourselves because what we have said is that in exchange for this
right to review we will give up our right to impose sunset clauses
on legislation proposed by the Commission, and this to me is a
backward step, not a forward step. Those are the initial comments
I make.
Q398 Chairman:
Can I just follow up the point about your role and comitology
by focusing attention on a question which we raised and that in
turn arose out of some comments by Tony Bunyan and Professor Steve
Peers, which commented on the number of first reading deals being
reached in the area of Title IV, which is not a transparent arrangement.
Is that going to continue?
Mr Bradbourn: I suspect it will grow.
Baroness Ludford: I thought a lot of that was
fair comment, and indeed I think Tony Bunyan of Statewatch encapsulated
that in a Statewatch paper from last September. Just this morning
in our group Diana Wallis presented to us a working document and
I have brought a copy that no doubt we can send to you electronically
as well. There exists a working party in this House on parliamentary
reform and they have produced a working document, number 12. I
am quite anxious to see all the previous working documents, but
this one is on co-decision and conciliation, and it does pick
up the question about the potential lack of transparency and democratic
legitimacy of first reading agreements. I confess that Tony Bunyan
has been a little bit kind to me on the Visa Information System
because he cited that as a bit of an exception, which is very
sweet of him, but we did not have a committee vote on the Visa
Information System before I went into negotiations with the Council.
Within these four walls I might say—
Mr Cashman: Is that on the record?
Baroness Ludford:— that that might have
given me a certain degree of latitude which possibly led to a
rather better deal that we got out of the Council. That is my
word and I am sticking to it, but on the one that I am now doing,
which is a sort of daughter of the Visa Information System and
is the measure about how you handle the visa applications of outsourcing
and the collection of the fingerprints and the biometrics, it
was precisely because of my experience on the VIS that I very
deliberately wanted a committee vote, which we had in November,
before we had negotiations with the Council. I think, all things
being equal, it is as well to try and deal with legislation as
expeditiously as possible; therefore, if we think we can deal
with it in a first reading and not spin it out to two readings
and conciliation, that is good, but first of all you have to make
sure that your own colleagues are well informed, and I think we
certainly did that under the Visa Information System by briefing
both shadows and making regular reports back to the committees,
and Michael is one of the shadows so it would be his judgment
rather than mine which would have mattered there. However, there
is an issue about the availability of documents because they do
not tend to go on the website and I think personally that our
committee needs to discuss this and discuss how we can improve
our procedures and the transparency of them because the document
which was the basis on which I went into discussion with the Council
was my suggested amended report that would have gone forward to
a vote in the committee, had there been one, but we stopped short
of that and I was permitted by the committee to go and discuss
it with the Council, but that document itself was never voted,
only the final result was voted in the committee. That document
was available to other members of the committee but it was not,
for instance, on the Parliament website, so there is an issue
there about transparency. Democratically this issue may be slightly
different because I think the committee was well informed but
transparency certainly is an issue.
Q399 Chairman:
You used the phrase a moment ago "between these four walls",
but this is on the record.
Baroness Ludford: Oh, right, okay.
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