Examination of Witnesses (Questions 400
- 419)
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
Q400 Chairman:
Mr Cashman?
Mr Cashman: I have a couple of references—and
I do not want to make it a tit-for-tat—to something that
Philip said. Data protection is absolutely essential and that
is why we need EU-wide data protection, so that if you go to one
country the same standards, the same protections apply there as
in the other, and I do not see anything that diminishes that.
Indeed, the Prüm Treaty is not about the exchange of information;
it is about whether information is held. It is called a "hit/no
hit system"—"Is information held by another national
database?" "Yes, it is", and again once it is communitised
rights and provisions apply. I became excited by what Sarah was
saying and by what Tony Bunyan had been saying about the whole
issue of first reading on co-decision being less transparent.
I would expect Tony to say that and I am pleased that he does
say that and challenges us so fearlessly on these rights. If we
have a first reading deal it is the decision of the committee.
No rapporteur acting on their own can engage in a first reading
negotiation with the Council and the Commission, so therefore
it is upon agreement with those respective shadows, the shadows
being those working in the other political parties on the same
dossier. Indeed, when we generally go for a first reading deal,
as Sarah said, there is continuous reporting back to the committee
on the negotiations, but not in camera. These committee debates
and these reports are in public. The documents are made available.
There is widespread debate amongst the different political groups,
so it is as transparent as it can be. However, of course, if you
enter into the first reading deal it is generally because you
are going to get a better deal from the Council than you would
going to a second or a third reading. Again, it is the judgment
that the rapporteur makes that she or he then puts to his or her
committee, and then it is up to the committee in a full vote to
decide whether they accept that or not. Equally, I do not want
to blame the institutions. The rapporteur has the opportunity
at any stage to go to the committee and say, "These are the
amendments. Let us vote", and indeed this happens on many
occasions where you get the committee to vote, you continue negotiating
with the institution, you take it through to the plenary, you
have the first vote on the amended legislative proposal and then
you refer the whole thing back to committee which gives you as
the rapporteur the right to enter into negotiations. The reason
you get first reading deals is generally because you feel you
are getting a better deal for the citizen and for the institution
than you would otherwise get. It is not forced upon you. It is
a decision that you personally make, taken in conjunction with
your colleagues in the committee.
Q401 Baroness Kingsmill:
I just quickly want to ask the MEPs for their practical understanding
of how they think the emergency brake system would work alongside
the enhanced co-operation aspect of things, because from a legal
point of view it looks perfectly fine, but I suspect the realities
of the politics of this might be a little different and I would
quite like to understand how you thought it would work. It is
like a mini opt-out, is it not, an emergency brake, triggering
the four-month discussion, presumably, and at the same time the
gang of nine or whoever get together and fight it out against
the emergency brake instigator? I just wondered how you saw it
working in practice. Is it going to happen? Is it an underpinning
for those countries that do not have opt-ins and opt-outs?
Baroness Ludford: It has not happened so far.
Mr Cashman: I am certainly of that opinion.
Baroness Ludford: But they could have used enhanced
co-operation provisions in the Treaty up to now and they did not.
In the Treaty of Prüm it was not even Third Pillar. It was
a pure international agreement, nothing to do with the EU whatsoever.
Seven Member States got together and reached a purely international
agreement. They did not use enhanced co-operation—I do not
know why. It did not cross their minds—and then they put
it through the Brussels machinery and it ended up as an EU decision
with no co-decision, nothing, not even proper consultation, and
no involvement of national parliaments practically except for
national parliaments which had to ratify it as an international
agreement and, as I said in a debate in the Lords a few weeks
ago, I think the Bundestag had half an hour's discussion of it.
The whole thing to me was a democratic scandal, the Prüm
Treaty, and the way it could just get laundered through the Brussels
machinery.
Mr Cashman: But that will not happen with co-decision.
Baroness Ludford: You ask me what I expect to
happen. I suppose the answer is I do not know, but I know from
the past that they have not used the possibilities in the enhanced
co-operation provisions; in the past they used Prüm. They
resorted to going outside the EU altogether, as they do with the
whole G5 and G6 intergovernmentalism, which the committee has
extensively commented on. Member States like that. It is cosy,
it is secret, it is behind closed doors, as one of your reports
was called, and it keeps the pesky MEPs out of the picture as
well on the whole as national parliamentarians. That appears to
have suited them in the past but I do not know whether this will
be used.
Q402 Chairman:
There was a numbers point, was there not, too? There were only
seven at Prüm, which did not meet the minimum number for
enhanced co-operation?
Baroness Ludford: Yes, that is true. In theory,
if you have nine Member States going forward in enhanced co-operation
the Parliament has full co-decision rights, which means the whole
Parliament. I do not know; perhaps Mr Lehne might know the answer
to that more than I. As I say, one has a certain wish not to debate
this question because I do not want to set hares running, but
what will be the position of those MEPs who come from, in this
case, 18 countries which do not join in the enhanced co-operation
measure? Will there be a move in the Parliament under the rules
of procedure of perhaps, saying, "We want to exclude those
MEPs whose countries do not take part". In constitutional
theory, I think, we are all equal, being a parliament, but our
nationality might count against us.
Q403 Chairman:
Certainly that is not a concept that is foreign to the United
Kingdom, is it, at the moment?
Baroness Ludford: No.
Mr Bradbourn: Can I add to what Sarah said because
this does actually give the example? Regarding the Prüm Treaty,
when Parliament was effectively consulted on the issue, as you
say, there was no decision on this from Parliament. We had just
about six weeks from start to finish to put our opinion forward.
That is not proper democratic oversight from my point of view.
Baroness Ludford: But it is take it or leave
it because it has been concluded as a Treaty anyway.
Q404 Baroness Kingsmill:
Just getting back to my original question, are you saying that
the Prüm experience is what is likely to inform the operation
of this?
Mr Bradbourn: I suspect so.
Mr Cashman: My Lord Chairman, can I add what
I said as an intervention, that, of course, co-decision will mean
that the Parliament will no longer just be consulted when we have
such important matters as these. There will be democratic oversight
and engagement and that is again one of the reasons why I welcome
the developments, not least in JHA.
Q405 Chairman:
Can I ask in that context a follow-up. This is in relation to
the question of criminal laws where Article 69B(2) now permits
Member States under Title IV to define criminal offences and minimum
sanctions in a particular area, bringing within Title IV, qualified
majority voting, this jurisdiction, and leaving unspecified what
the position is in relation to the existing Pillar I jurisdiction
established by the environmental pollution and the ship source
pollution cases. What would interest us to know is, if the Commission
continued to advocate the jurisdiction established by the environmental
pollution and ship source pollution cases, and indeed, if in particular
it continued to seek to expand that, what would the European Parliament's
attitude be likely to be? Would the attitude be that that was
inappropriate and that one should deal with criminal matters now
under 69B(2), which is a specific regulation? That is a purely
legal question, is it?
Mr Medina Ortega: We are discussing it at the
Legal Affairs Committee and we do not yet know the answer. We
are discussing it and we do not have a report, and in Parliament
it is absolutely impossible to know what the Parliament will decide.
Mr Lehne: We have a personal opinion but that
is different.
Mr Medina Ortega: Everyone has an opinion.
Mr Lehne: I am very reluctant on this whole
item because I personally believe that the European Union, not
only because of legal reasons but also because of political reasons,
should limit its activity in criminal law to a minimum. The simple
reason for me is that just harmonising minimum and maximum penalties
makes absolutely no sense because the question of criminal punishment
is much more connected to the questions of measurement and enforcement,
and this is so completely different in the Member States that
harmonising just one small aspect of the whole system at the end
does not really bring any effect; it only produces additional
distortions. From that point of view I am personally absolutely
against this but this is my personal opinion and my feeling is
that the majority in the House are not of this opinion, but that
is the way we are. We are discussing it in relation to the proposal
of the Commission on the environmental criminal law and also we
have to keep in mind the latest decision of the Court of Justice.
They have changed their attitude a little bit and the Commission
is reacting on this now and it is limiting the operation of this
annex competence that they created in relation to internal market
legislation.
Q406 Chairman:
Does it follow from that that the focus may be on the jurisdiction
to establish minimum rules relating to rights of individuals in
criminal procedure, for example, if you are concerned about the
actual operation of legal systems?
Mr Lehne: This is something different. On one
side we are speaking about harmonising criminal law. In the area
where we are not really harmonising it we are harmonising just
some aspects, which in the end does not solve the problem. This
is always the case. It is a complicated subject and you are just
harmonising certain aspects and leaving the others out. The result
may be not more harmonisation but more distortion; that may be
the result of all of this. We have this very often as well in
discussions on company law, which has nothing to do with this,
but at the end you can see that if your opportunities of harmonising
are not enough, if they are concentrated on certain aspects, then
it is politically better not to do it than going on, but at the
end, if we now take a look at the Lisbon Treaty, it will be a
political decision case by case, point by point, proposal by proposal,
of the political institutions, Parliament and Council, whether
they want to go on or not. This is the way it is. For example,
you have now the experience within the Council that on certain
aspects, for example, combating counterfeiting, probably the Council
does not want to go on because they have made the political decision
not to do it. They probably have the legal opportunities to do
so but the political decision is not to be used as a legal opportunity
and I personally believe that this is right.
Q407 Lord Lester of Herne Hill:
My question follows from what Mr Lehne was just saying. As Diana
Wallis was leaving I was trying to touch on something akin to
this. Whether you are dealing with criminal law or what we call
tort law you are dealing with sensitive issues about social policy
and the ethical values that the criminal or civil law systems
are reflecting. If you take a federal system, I can understand
the notion that there are some offences that are so serious and
cross-border that you have federal crimes, say, in the United
States, but you also have state criminal systems which respect
the differences in value of smaller units. The reason why what
you say I find very important is that, to the extent that you
move beyond what I call federal crimes or you widen the scope
without doing the job properly, you begin to create unnecessary
divisiveness within the whole European system, so that in the
civil law area my problem has been that by trying to harmonise
what we call tort law in the area of free speech and privacy,
where you contrast, say, the French and the British positions,
you immediately arouse huge controversy unnecessarily.
Mr Lehne: That is the reason why we have taken
it out of Rome II.
Q408 Lord Lester of Herne Hill:
I know, but is there some lesson there for the future in the way
that one approaches Lisbon?
Mr Lehne: I hope so.
Mr Medina Ortega: We have come to the point
where we are living in a common space, so if you commit a crime
in one country and move to another you might escape jurisdiction.
This is why we started with pollution, with the great sea accidents.
Depending on the jurisdiction of where you are going to be tried
it will be completely different. This is ignoring the fact that
we are already living in a community in a sense where people can
move easily from one place to another and can cause harm. This
is the case with pollution but there are several areas, such as
money laundering and all these things, international criminality.
Q409 Lord Lester of Herne Hill:
Broadcasting.
Mr Medina Ortega: So, obviously, we have to
go into there to achieve it. This will be difficult but I cannot
see how we could have a different criminal law from one country
to another. There are many imperfections in the American system,
but there are some general principles of common law but people
can escape justice very easily in the United States. You can move
from one state to the other, change your name and nobody can find
you, and that does not make the United States very safe.
Q410 Chairman:
Is not the primary solution to that a measure like the European
Union arrest warrant?
Mr Cashman: Absolutely.
Mr Medina Ortega: That is one minor instrument.
Of course, I supported it; I am a socialist. We represent a different
point of view, and I find that we need to move into there. I have
lived in the United States and the United States is one of the
most unsafe countries in the world, because you have a free area
with not enough controls, and I do not see how we can use the
American system as a model for the European Union Community.
Q411 Lord Lester of Herne Hill:
Are you not running together several different things there? Obviously,
there are some social evils so great that they can only be tackled
on a cross-border basis. Pollution is a very good example of that,
and I call those federal crimes. Obviously, even where they are
not federal crimes the need to ensure that wrongdoers are brought
to book across Member States requires something like the European
arrest warrant in order to ensure that that should happen as a
matter of jurisdiction to get your hands on the person and so
on, but those are different questions, are they not, from an attempt
to harmonise the whole of criminal law or the whole of what we
call tort law, where what I am suggesting is that subsidiarity,
apart from anything else, needs to be respected if you are to
have the confidence of the citizens of Europe that their own national
systems are being respected within the overall European system?
Baroness Ludford: Yes.
Mr Medina Ortega: That is the question!
Q412 Lord Lester of Herne Hill:
That is my question!
Baroness Ludford: I agree with that because
I think we should firmly stick to the notion that what we are
trying to do is make legal systems interoperable, not trying to
create one single EU criminal justice system. It is difficult.
It is an awkward match to make because, particularly when you
do establish minimum rules on the definition of criminal offences
and sanctions, trying to fit that into 27 different sentencing
structures, and I am not an expert in this but you are,—
Q413 Lord Lester of Herne Hill:
No, I am not.
Baroness Ludford:— must be quite a nightmare.
I appreciate that it is very difficult to negotiate these things,
which is why they have minimum and maximum, which is a pretty
wide spectrum. Just to answer the Chairman's original question,
I personally would have thought that once you have got this Article
69B, which is in the Lisbon Treaty and which provides for defining
criminal offences and sanctions in areas like the environment,
so you now have this new legal base, it would be difficult not
to use that,—
Mr Lehne: I think so too.
Baroness Ludford:— and difficult to go
back and rely on the court jurisprudence, to use the other legal
basis, the environmental transport policy or whatever legal basis,
and I would have thought that, even if it were legally possible,
quite honestly it would be politically unwise. Obviously, the
difference it makes to the UK is that the UK can opt out of the
former and not the latter, but I would not have thought that there
was any particular interest in forcing the UK—and I am talking
particularly about the UK here—to try and join in something
about criminal measures when there is another legal base which
is perfectly respectable, and indeed tailor-made. There might
be some people in the Parliament who might want to but I do not
honestly think it would be a very clever way to proceed.
Q414 Lord Blackwell:
One of the things we have learned from previous Treaties is that
you cannot just take the Treaty as it currently stands; you have
to anticipate the way in which subsequent decisions may go on
and evolve, and so we have language here which is rooted in dealing
with cross-border crimes and cross-border co-operation in the
most part, although 69C, for example, talks about crime prevention
without any reference to cross-border. I think some of the questions
touch on what Mr Bradbourn was saying earlier, first, is there
any political desire in the Parliament in Europe to use this as
a basis to legislate beyond cross-border?
Mr Cashman: No.
Q415 Lord Blackwell:
Secondly, even if there were not, is it practical to limit legislation
so that it only impacts on cross-border without in a sense affecting
the way legal systems have to work domestically, and, thirdly,
even if that were the intent of the legislation can we stop the
European Court of Justice interpreting the body of law here in
a way that then transfers across to other countries?
Mr Bradbourn: Can I comment on that? You have
identified absolutely what my biggest concern is with all of this,
and that is what we term here Treaty-creep. In other words, we
have a Treaty and then it is always pushed against the barriers
to try and bring some new element into it that was never foreseen
when the original Treaties were put together. That to me is a
big concern. The other area where you have this is in terms of
when there is a limitation, if you like, a principle accepted,
as was described earlier, of subsidiarity. The subsidiarity argument
is one that is almost dismissed, "Oh, well, we see there
is a need to act". Do not forget in this new Treaty you have
the ability to self-amend the Treaty and that again is something
which is a significant factor in how far you can push this.
Mr Lehne: I would like to try to answer this
question. First, I believe it is quite clear it is a legal base.
It is just giving the opportunity to solve cross-border situations;
we can only act on this area, that is exactly what you said, so
we can define those federal crimes. We can as well, as we have
heard, harmonise certain aspects but I personally, because I do
not think it is politically wise, would not like to do so. That
is the way it is, but defining them for cross-border cases and
telling the Member States, "Okay, you have to do something
to make sure that no-one is committing such crimes", makes
sense and I personally believe is possible. The second aspect
is the problem of the legal base: is there no danger that we do
more? I think now we have Article 95 on internal market legislation
and that is also a question. We can use this in a good manner
and in a bad manner but I think it is politically not wise to
use it in a bad manner, and that is the reason why the Council
and the Parliament are making serious use of this instrument and
are trying to make good decisions. That is a situation that exists
everywhere. Whatever the legal base you can do bad things and
you can do good things. It is exactly the same here. It depends
on the political process and the result of the political process
where Parliament, Council and Commission are involved with the
whole thing. The European Court of Justice—for the first
time that is connected to a subsidiarity problem. With the Lisbon
Treaty we have the opportunity of the national parliaments to
go to the European Court of Justice and check if there is a subsidiarity
problem in there or not. That is for the first time. There is
no jurisdiction of the European Court of Justice on subsidiarity
now. There is one simple reason. The only ones that could go to
the Court of Justice are the Member States and the Member States
were sitting at the table when they were making the decisions
in the Council and no-one who makes a decision is going to go
to court against his own decision. That is the simple reason why
we do not have jurisdiction on this. This real change, which I
think is a really high quality change, in the Lisbon Treaty gives
the opportunity in future for each of the national parliaments
to go to the European Court of Justice and then for the first
time we will probably have a jurisdiction on questions of subsidiarity.
If it is possible, if it fits into the system of subsidiarity
if the European Union is doing the legislation, I personally believe
that this is an advantage and for the first time we may have some
changes on that aspect.
Q416 Chairman:
Is perhaps an alternative view that the European Court of Justice
has tended to accept the Community institutions' assertions about
the need in the interests of the internal market, et cetera, for
particular legislation and, as you say, there is very little jurisdiction?
Mr Lehne: Tobacco and other examples, it is
true.
Baroness Ludford: The Court would have to pay
attention to the wording in Article 69B(1) which talks about particularly
serious crime "with a cross-border dimension". Secondly,
yes, there is a danger of some spillover into domestic law and
I think we have to try and limit that spillover. As I say, if
you have got a Community instrument talking about minimum sanctions
how does that fit in with the rest of your sentencing policy?
I am sure there are difficulties there but we have to try and
ring-fence it as much as we can because I personally do not want
the EU harmonising all of our criminal justice system.
Mr Cashman: It is important to recognise that
69B(2) creates a specific Treaty base for criminal penalties and
therefore will have to be used specifically. Let me just get on
to this notion of Treaty creep. Where it has happened we have
been very carefully reminded of our legal obligations under the
Treaty, and indeed I will give a specific example—passenger
name records, for which the proposal originally came from the
Council under Pillar I, commercial activities. The Parliament
challenged this. The European Court of Justice agreed on that
and it had to go immediately to Pillar III over which the Parliament
had no co-decision matters whatsoever, so there was a brilliant
example, I believe, of us reminding the institutions that Treaty
creep would be unacceptable even though arguably we suffered as
a result of taking that action. Also, of course, this Treaty is
not a self-amending Treaty. No Treaty is. It can only be amended
by an IGC. We have to be very careful about the allegations that
we make regarding the Treaty. Of course, we never know what the
ECJ will do but I do know this, and thank God (and I say that
as an atheist) I am not a lawyer, that one lawyer will give you
an opinion and another lawyer that you pay will give you the contrary
opinion. I believe that the UK has negotiated its position brilliantly
and thoroughly so that when we come to that point I believe our
position will be thoroughly upheld..
Q417 Chairman:
I have just one final question and I do not know whether any of
you wish to say anything on it. One matter which has interested
us is the expanded jurisdiction of the European Court of Justice
and whether the European Court of Justice will in your view need
to be the subject of consideration as to its method of operation,
its constitution, matters perhaps as fundamental as the way in
which judges are appointed, and in view of the expanded competence
is this a matter which has been or is likely to be of interest
to the Parliament?
Mr Lehne: I think so. I think at the end this
is progress because we have now a kind of new system that guarantees
a certain quality and I personally believe that this is a real
improvement. It is not necessary that Parliament is directly involved
in this whole process but I think it is not really acceptable
that the heads of governments at the end are making their personal
decisions and that is it, and so I personally believe this is
good progress.
Q418 Chairman:
You are referring, are you, to the committee of wise men which
vets this?
Mr Lehne: Yes.
Q419 Chairman:
What about more fundamental changes, possibly even a move away
from the principle of one judge per nation, for example?
Mr Lehne: That will be difficult. I personally
believe that because of the specific role of the European Court
of Justice it is necessary that you have a representative from
every Member State. That is necessary for the involvement of all
different ways of legal fielding of jurisdiction, so I personally
would prefer that every country has a judge in there, but on the
other side it is also clear that if the European Court of Justice,
in acting on this area, makes decisions on cases in which one
specific Member State is involved the specific judge coming out
of that country should not be involved in the decision.
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