Examination of Witnesses (Questions 424
- 439)
WEDNESDAY 9 JANUARY 2008
Ms Julia Bateman, Ms Jane Golding and Mr Scott Crosby
Q424 Chairman:
Thank you very much indeed for coming. This is on the record and
I know that Julia Bateman at least has given evidence before.
We have had an extensive programme of evidence taking and this
is with a view to feeding our report into a report by the European
Union Select Committee which will be useful, hopefully, in relation
to the bill to implement the Lisbon Treaty. I do not know whether
there is anything you would like to say by way of introduction
initially about yourselves or generally in relation to the subject.
Ms Bateman: Thank you, my Lord Chairman, for
the invitation to appear before the Committee. If I may briefly
introduce ourselves, I am Julia Bateman. I am the Law Society's
EU Justice and Home Affairs Policy Adviser and currently acting
head of the Brussels office. The Law Society of England and Wales
represents over 120,000 solicitors and our Brussels office acts
as the voice of the solicitor profession to the EU alongside the
Law Society's EU Committee. I am joined by Jane Golding, who is
a member of the Law Society EU Committee and an experienced EU
law practitioner, and Scott Crosby, who has gallantly agreed to
step in at the last minute. Scott is a colleague of Jane from
the law firm Crosby, Houben & Aps and is a member of the Advisory
Board of the European Criminal Bar Association and a former member
of the Law Society EU Committee.
Q425 Chairman:
That is very helpful and I should have said that we are grateful
for the written submissions which the Law Society has made. Is
there any more you want to say generally on the topic we are discussing
before I ask some of the specific questions?
Ms Bateman: Just a brief point, that the EU
Committee has been working on an explanatory guide to the Treaty
of Lisbon which is aimed at informing the solicitors' profession
and we will also be hosting an event in the House of Commons around
the ratification bill in order to take part in the process and
the debate. Your invites and the guide will be winging their way
shortly.
Q426 Chairman:
I think they have been received.
Ms Bateman: They have come? Excellent.
Q427 Chairman:
Unfortunately, I think they may clash with either a meeting of
this committee or of the EU Select Committee, but otherwise I
am sure that members will come.
Mr Crosby: My Lord Chairman, I should perhaps
point out that I am here in my personal capacity entirely. I have
no mandate to represent the Criminal Bar Association or the Law
Society EU Committee.
Q428 Chairman:
Thank you very much. The only matter that I might point out is
that I have a different role as a member of the Lord Chancellor's
Advisory Committee on Private International Law which had a lot
to do with the Rome I negotiations, which have been recently concluded,
but we may or may not get on to them. How do you see the new Chapter
IV with its detailed listing of areas of competence in criminal
law in comparison with the current Title VII?
Ms Bateman: I believe this question falls to
me. I do believe that Chapter IV does entail extension of co-operation
in this area and clarifies and confirms through certain express
references the competence of the Union to take action. If we look
at the key provisions of the new Treaty, you have got, as you
know, 69A and 69B split between minimum rules relating to procedure
to underpin facilitation of mutual recognition and, in terms of
69B, the more substantive law rules focusing on offences and sanctions.
As far as 69A is concerned, I would say the main development or
extension is a specific reference to the rights of individuals
in criminal law procedure. Whilst it was deemed that the EU had
competence in this area under the current Treaty in terms of Articles
31 and 34, we welcome this express reference because it clarifies
any debate over whether there is a legal basis in this area, again,
with specific reference to victims of crime rather than a deemed
competence under the current Treaty, and a further innovation,
if I may call it that, is again an express reference to admissibility
of evidence, which as far as I understand it was one of the major
discussion points in terms of the European evidence warrant. Those
terms of 69A I would flag up. In terms of the list of offences
in the new 69B, to some extent this reflects and repeats broadly
what is in Article 29 of the Treaty of the European Union. There
is reference to sexual exploitation and a specific reference to
money laundering or computer crime (cyber crime), but I doubt
this is as significant and it might appear because the EU has
already taken action in these areas anyway, although I think it
is worth considering 69B(1) which refers to the identification
of other areas of crime, and this may be a provision that the
EU will rely on later in terms of future criminal law activity
being subject to that. In terms of harmonised areas of law I will
leave that to the next question.
Q429 Baroness Kingsmill:
Those things itemised in the areas of criminal activity did seem,
to me anyway, to have rather useful specificity, if you see what
I mean, as opposed to what had gone before where there was inter
alia or as well as or examples. It is quite useful, I would
have thought, to have a clear definition of those areas which
are going to be specific.
Ms Bateman: Absolutely. I think that is one
of the benefits, as you say, of itemising the areas or clarifying
that computer crime or money laundering or the sexual exploitation
of children are identified in the legal basis.
Q430 Lord Norton of Louth:
Can I just pursue the point made to clarify 69A(1)? I think you
were saying the first paragraph potentially had the scope for
extension but is it not qualified by the second paragraph?
Ms Bateman: Yes. It is not a broad extension
of powers and certain criteria have to be met but it seems to
me that this is a residual provision that may be relied on later
where the Council agrees unanimously to introduce new areas of
activity. You are absolutely right: it is qualified, but I think
it is an important provision within the article.
Q431 Chairman:
These provisions are described in terms of mutual recognition
and in some contexts one can no doubt understand that readily
if you are going to recognise a criminal penalty or for any purpose,
including implementing it. If there is legislation providing for
one country to implement the decisions made by another mutual
recognition is an appropriate concept, but everything in 69A(2)
relating to mutual admissibility of evidence, rights of individuals,
rights of victims of crimes, is described as being "to the
extent necessary to facilitate mutual recognition of judgments
and judicial decisions and police and judicial co-operation ...
". How is that limitation to be understood?
Ms Bateman: Broadly speaking, on the question
of mutual recognition, this is the first time it has been expressly
referred to in the Treaty. The principle of mutual recognition
has long been relied on in Commission proposals and recently in
terms of judgments of the ECJ and I do think that in order to
advance the concept of mutual recognition, there are minimum rules
to underpin this, in a sense to facilitate mutual recognition,
as you said, my Lord Chairman, such as mutual admissibility of
evidence or rights of individuals in criminal procedure. It is
taking the principle of mutual recognition but having minimum
rules across the board to facilitate that.
Q432 Chairman:
Let us take the case of a Briton who commits a crime in Spain
or a Spaniard who wants to intervene in French criminal proceedings
as a partie civile. There is no question of mutual recognition
of a judgment or judicial decision. It is simply a question of
what are the rights of an individual or the rights of a victim
of crime. Would there be jurisdiction to cover that situation
or is the limitation in paragraph 69A(2) perhaps in some respects
rather odd?
Ms Bateman: I think on a strict reading of the
article it would be limited to mutual recognition in certain cases
in terms of a cross-border criminal law procedure, but I can imagine
the situation in terms of the broad rules in the area of freedom,
security and justice. You would want to have mutual recognition
in terms of fair trial rights or safeguards or guarantees; rather
than mutual recognition, actual minimum rules across the board.
Baroness Kingsmill: My Lord Chairman,
do you think you would read 69A(2) and 69B(1) together, in the
sense that it is those crimes for which you have to have mutual
recognition of judgments and judicial co-operation and so on?
Would it be in relation to those particular crimes, do you think?
Q433 Chairman:
My reading would be on the face of it that 69A and 69B are entirely
separate. In 69B there is pretty general power but in relation
to 69A(1) I am simply raising the possibility that there might
be an oddity about the apparent limitation, that it would have
to be worked out. Is there anything else you want to say on the
subject of mutual recognition which now finds itself in crime
as well as civil?
Ms Bateman: Just to the extent that it is a
preferred mechanism of judicial co-operation and harmonisation
and we have always supported that model. I think mutual recognition
was a UK Presidency concept back in 1998, if I understand correctly.
Just to add one point, if I may: the concern that the Law Society
has about mutual recognition is the over-reliance on the concept
of mutual trust that is deemed to underpin this. We have numerous
examples and complaints from practitioners that mutual trust does
not actually exist to the extent that the policy makers would
have us believe and that there are practical day-to-day concerns.
That is just the counterbalance to mutual recognition in that
sense.
Q434 Chairman:
Was there a point you wanted to add, Mr Crosby?
Mr Crosby: That was more or less my point. I
think this is best construed as meaning that it is felt that it
might be necessary to shore up mutual recognition. There is a
certain amount of cynicism expressed about the real meaning of
the term and whether it really exists.
Q435 Chairman:
Perhaps I can ask a different question which arises under 69B
out of evidence we have just heard. We heard a view expressed
that in fact it is not very helpful to have a provision like 69B(2)
which establishes minimum rules. They do not really do much for
anyone, they do not help raise standards and, if anything, they
may, since they are by definition minimum rules, depress them
or suggest a rather depressed level.
Mr Crosby: If I may say so, the question is,
is it plausible in the abstract? I think one would have to look
at what actually happens and maybe at areas where in a given Member
State the level of punishment, if you like, is either non-existent
or very low, so as to mean that basically there is no deterrent
whatsoever. It may be the case in certain specific situations
that the minimum level will bring some Member States up, but if
it is a minimum it means, of course, that the court in any given
case will go above the minimum in terms of sanction according
to the judge's discretion.
Q436 Lord Rosser:
When you said some states might be very low, are there any particular
areas that you were thinking of?
Mr Crosby: You will forgive me. I was called
in at the last minute and I have not really prepared myself as
I would normally like to, but if I can make a couple of generalisations,
in environmental law, for example, it is commonly known that in
certain countries in the north of Europe, Scandinavian countries,
for example, there is very strict law, and in certain countries
going towards the Mediterranean there is a certain amount of laxity
and if the laxity is such that there is basically no deterrent
then this provision would fill the gap.
Q437 Chairman:
Can I ask a different question arising out of 69B(1), which is
the third question before you? Do you have any view as to how
far it is either open to the Community or likely that the Community
will in practice, if it is open to it, use the possibility of
continuing to apply, advocate, possibly even expand, the jurisdiction
under other provisions of the First Pillar established by the
environmental pollution and ship source pollution cases?
Mr Crosby: My Lord Chairman, I think the answer
to that is relatively simple. 69B(2) is a specific rule and specifically
will be based in Community law. At least the rule of construction
is that where there is a specific rule or a specific legal basis,
that prevents reverting to a more general basis. I think that
is all we would really need to say. I think that 69B(2) is a lex
specialis. It would be very difficult for the EU to justify
using a more general legal basis. I think it would be extremely
difficult, if not impossible, to sustain an argument supporting
a different legal basis before the Court of Justice. I would feel
happy pleading 69B(2). I would be rather uncomfortable pleading
a more general legal basis.
Q438 Chairman:
Thank you very much indeed. Can we move then to enhanced co-operation?
If the emergency brake under 69B(3) is applied, where a country
considers a fundamental aspect of its criminal justice system
is involved or affected, the question asks whether this is a desirable
development. Is exceptionalism to be deplored or is the Treaty,
in that it allows the UK the opt-in and generally the emergency
brake procedure, something that is acceptable and possibly even
welcome?
Ms Bateman: Looking across the board at enhanced
co-operation and the emergency brake and touching on the opt-in,
the Law Society has stated previously that we agree that the proposals
in police and criminal justice do have a particular resonance
in terms of national law and procedure and we can see why this
is seen to some extent as stepping on the sovereign toes, if I
may call it that, of Member States and the introduction of the
emergency brake procedure does appear to be a sensible mechanism
to protect those national interests and offset some of the perceived
danger in losing the national veto. In order to make progress,
however, enhanced co-operation is an important model and, an important
corollary to that, a logical step. These two options put together
allow those Member States who have a problem, who wish to protect
their national interests, to withdraw, but those who do not want
to be prevented or held back can go ahead. To some extent there
are problems with this and, as you say, is this a desirable development?
The problems we would identify are really that you either have
a two-speed situation or you have a patchwork of legal rights
and obligations where nine, ten, 11 Member States are subject
to a framework decision or now a directive and the others are
outside of that, and similarly it does seem to undermine the overall
coherence of law and procedure in this area and questions the
goal of a single or a genuine area of freedom, security and justice,
so in a sense there are benefits and disadvantages to this model.
Q439 Chairman:
I want to come back to the UK opt-in, although I mentioned it
a moment ago. Can I just ask about civil justice and family law
measures. What are the significant changes that you identify in
these areas? One difference which we have noted is the change
from the limiting words of Article 65, "in so far as necessary
for the proper functioning" to the words of the new Article
65 envisaging adoption of measures "particularly when necessary
for the proper functioning of the internal market". How do
you see that and the matter more generally?
Ms Bateman: In general terms I think it is fair
to say that provisions relating to civil justice and family law
are those that have changed the least and restate much of what
is in the current Treaties in terms of civil judicial co-operation
already being subject to qualified majority voting and co-decisions
over the ordinary legislative procedure, as it is now termed.
Of course, family law remains subject to unanimity and there is
the new change of the role of national parliaments in terms of
any mini-passerelle, to coin a term. In terms of the changes
though, there are some that are worth highlighting. There is a
specific reference to alternative dispute resolution and access
to justice but to some extent this is window-dressing because
the mediation directive has already been based on Article 65 of
the current Treaty.
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