Examination of Witnesses (Questions 440
- 459)
WEDNESDAY 9 JANUARY 2008
Ms Julia Bateman, Ms Jane Golding and Mr Scott Crosby
Q440 Chairman:
Was that not under the alternative methods of dispute resolution
provision and is that not in the existing Treaty? No, I think
you are right. That was not. That is another new provision.
Ms Bateman: Exactly, my Lord Chairman. It is
almost stating what has already gone ahead in terms of judicial
co-operation. It is just the express reference because I believe
this is something that is deemed a priority in this matter.
Q441 Chairman:
But presumably now that one observes that they have added both
"effective access to justice" and "the development
of alternative methods of dispute settlement", "effective
access to justice" is presumably supposed to add something
to alternative ADR, is it not?
Ms Bateman: Yes.
Q442 Chairman:
Have you any idea what it is? It could be interpreted widely;
it could be interpreted narrowly, could it?
Ms Bateman: I think it is just using the opportunity
in terms of redrafting an article to state the principles that
have been relied on and pin them down into a Treaty article as
opposed to a broad understanding.
Q443 Chairman:
What about the change from "in so far" to "particularly"?
Ms Bateman: I think to some extent, again on
a fairly strict reading of the provisions, "in so far as
is necessary" could mean that the provision that is proposed
has to be necessary for the good functioning of the internal market.
"Particularly" suggests that this is a priority proposal
or a particular angle, but I do not think we should be too alarmed
by the change because to my mind the main development is cross-border
implications. That has been spelt out in the first or second sentence,
so whilst there is some extension in terms of the language used
I think the provision is sound in terms of the impact in regard
to cross-border litigation.
Mr Crosby: My Lord Chairman, if I may interject,
all this process is subject to the principle of proportionality
and the additional checks that Parliament will be allowed to make
and subsidiarity.
Q444 Chairman:
Did you want to say something, Ms Golding?
Ms Golding: Yes. I was going to go on and say
that perhaps also the wording takes into account the fact that
here we are also looking at cross-border family matters where
there will not always necessarily be an internal market issue,
or not a direct internal market issue.
Q445 Chairman:
I think that sounds a very convincing possibility. What you are
saying is that it is not a particularly appropriate phrase, "the
internal market", in relation to family matters?
Ms Golding: Yes.
Q446 Lord Blackwell:
My Lord Chairman, can I just ask a question which I raised in
earlier discussions? To what extent do you think it is possible
for the EU to legislate in some of these areas on cross-border
civil law without it consequently becoming part and parcel of
domestic law?
Ms Bateman: The issue of the cross-border implications
I know is very politically sensitive, so I say this from my personal
opinion. I think it is possible to the extent that the legislative
provision that is proposed has to be based on cross-border situations
and cross-border cases. However, there will have to be some tweaking,
if you like, of domestic provision to allow those cross-border
pieces of legislation to come into effect. For example, the European
Enforcement Order or the European Payment Order are relating to
cross-border situations but the civil procedure rules had to be
amended to give effect to that, so it will touch on domestic procedure
but only to give effect to the cross-border piece of legislation,
if I can put it that way.
Q447 Lord Lester of Herne Hill:
Can I perhaps ask on an example I make up myself? We know that
questions of jurisdiction for divorce are now settled under EU
law by a process which ensures that only one court has jurisdiction
in some situations, all very sensible. Suppose you have a husband
who does not want to pay his wife a lot of maintenance and under
the law of state A it is much less generous to the wife than under
the law of state B. At the moment that is not regulated, but in
order to harmonise and ensure equal protection and equal treatment
will it not be likely that the substance of that area of law will
need to be equalised so that the woman or the man can expect more
or less equal treatment irrespective of the part of the European
Union where he or she lives?
Ms Bateman: I will attempt to answer that. Exactly:
it is the Brussels II Regulation that deals with jurisdiction
in terms of parental responsibility and matters linked to that.
As far as I understand it, there is essentially a race to court
to claim jurisdiction and after that the applicable law rules
in England would be the law of the forum. Other private international
law rule systems in the other Member States would indicate what
law would apply in those circumstances, and, of course, the Rome
III regulation on applicable law and jurisdiction is trying to
address the very situation that you are referring to. I do think
personally that it is a complicated situation of on the one hand
you are trying to harmonise, if you like, the applicable law rules
to assist in this situation, whilst on the other avoiding any
harmonisation of family law. From the perspective of an individual
you might say you should have the same law around the European
Union to offset the problems that you have identified in your
case example. On the other hand, family law is so specific and
particular to each Member State that that would not happen, and
in my opinion should not happen, in terms of harmonisation.
Q448 Lord Lester of Herne Hill:
But the problem still is, as you have just rightly said, that
under Brussels II you get forum shopping still in a sense and
there is a race to get your petition filed in the way that suits
the spouse best, and therefore you get great inequality in outcome
according to that rather arbitrary system.
Ms Bateman: I agree.
Q449 Chairman:
And that is no doubt the basis on which there are current proposals
for harmonising the proper law which would be applicable.
Ms Bateman: Yes, absolutely.
Mr Crosby: Perhaps I could add two words in
picking up on Lord Blackwell's question. There is an issue which
may come to the fore, and that is the recognition of civil partnerships.
They are recognised in some countries, such as Britain, Belgium,—
Q450 Chairman:
Spain, I think.
Mr Crosby:— and in some countries they
are not. What happens on death in terms of inheritance law? If
one country recognises that there was a bond and another country
does not, that can lead to all sorts of problems, and I think
that is an area which has to be settled across our big happy family,
but there are some countries which simply think that civil partnerships
are immoral—not the partnerships but that the people who
are in them are living immorally, assuming they are the same sex.
If legislation ever went through enforcing mutual recognition
for civil partnerships right across the Union then some countries
would have to make quite considerable concessions in terms of
the current law. I do not think Britain would be affected but
others would be.
Q451 Chairman:
Yes. There is no emergency brake in relation to family law. I
see that, and I think the same problem arises perhaps in relation
to matrimonial matters (opposite sexes) in relation to Malta,
does it not?
Mr Crosby: Yes.
Q452 Chairman:
I am not sure one can resolve that: if family law is a matter
for unanimity.
Mr Crosby: Yes, quite.
Q453 Chairman:
Thank you. Let us move on to the opt-outs generally. Obviously,
we have heard a good deal of evidence about how they operate and
we have identified the likelihood that, in relation to measures
building on Schengen acquis to which we are party, the
UK would have a wider opt-out than it has now. Are there other
points about the general opt-out, which of course applies now
across the board to police and criminal matters, everything in
Title IV, that you want to make? Do you see potential problems
about the general opt-out? How do you see the matter working pragmatically?
Would it be feasible pragmatically for the UK to refuse to opt
in frequently? It has done so in three recent civil law matters
and Rome I is the obvious example where there have been concluded
negotiations.
Ms Bateman: I will steer clear of the Schengen
Protocol if I may because I do not feel confident in addressing
that question. In terms of the general opt-in, as you say, the
extension of the opt-in to all matters in the area of freedom,
security and justice is a significant development under the Treaty.
The question is whether it would adequately protect UK interests,
and I think that "adequately protect" is probably too
weak a notion. I think the opt-in option that the UK has secured
strongly protects the UK interest and in a sense has an advantage
that no other Member State, with the exception of Ireland, of
course, has the privilege of. The opt-in arrangements do protect
national interest and safeguard the legal systems in the UK, and
obviously the particular common law interest or focus that goes
with that. In terms of the problems, again I touch on the points
I made in terms of enhanced co-operation and the emergency brake.
You have some Member States that are party to provision and the
UK and/or Ireland who are outside of it and that does again undermine
the one area of justice goal or the goal of a single European
area. Again, a marginally political point that I am also concerned
about is that we have seen in terms of procedural safeguards legislation
and the future European Supervision Order that these have not
been widely welcomed by the UK, if I can put it that way, so my
concern is that, having an opt-in option, the Government will
choose to opt into more prosecution-focused and investigatory
powers rather than those measures that assist in terms of procedural
safeguards for individuals or other matters in that field. That
is the main concern that we have, that the pick-and-choose option
is a good one but we are also concerned how that option will be
exercised.
Q454 Chairman:
I was interested to hear you suggest that the UK had not welcomed
the proposed measure relating to supervision. I am not sure what
that is based on.
Ms Bateman: I may stand corrected. I am very
aware that I have been welcomed into the Permanent Representation!
But I have been concerned that in terms of priorities or supporting
an initiative those that have not become a top priority have been
the European Supervision Order and the procedural safeguards proposal.
Q455 Chairman:
Yes. We noted what you said about the procedural safeguards proposal,
though the draft that this sub-committee saw represented, it might
be thought, a fairly weak set of procedural safeguards which may
have been felt not to add very much.
Ms Bateman: Certainly how the framework decision
was at the end of the negotiation there was very little in that
framework decision that would have had an impact in the UK, so
it would not have raised any standards, but our focus has always
been in terms of the other Member States in the European Union
and the coherence, if you like, of procedural safeguards overall.
Lord Blackwell: My Lord Chairman, on
the general opt-out point we have been told that for an existing
Pillar III measure, if it is amended, the amendment will become
part of the commoner Pillar I, as it were, and the Court of Justice
and all the rest of it will apply, but the original base measure
will remain in Pillar III, outside the scope and all that. In
practical terms, if you look at the kinds of amendments that are
made, is it realistic to think that you can have words added and
sentences changed in existing legislation and still have it split
between different procedures like that, and indeed the UK could
opt out of the amendment and still stay in the base? Does that
seem to you practical?
Q456 Chairman:
Or we might ask whether you share the view that has been put.
Is that your understanding of the Transitional Protocol?
Ms Bateman: We have not got any particular experience
of this, so this is just an attempt to address your question.
Transitional provisions are bound to be necessary in terms of
the changes in relation to the ECJ and the legislative procedure
and what-have-you and direct effect in terms of the ECJ, but I
am not sure how, in terms of amending the legislation, that will
take place. Your question referred to the speed at which the amendment
might be made or in terms of whether there will be express reference
to this as an amending provision. It does seem to be quite a convoluted
process and one that I imagine is going to be fit with problems.
I noted from previous evidence given to your committee that there
was a discussion as to whether at the end of the transitional
period the UK would have to opt in or pull out of all measures
under the Third Pillar or again select, or elect, if you like,
and I do not feel equipped to answer that, but that is an example
of the kinds of problems that are going to come out of the transitional
provisions, as you have mentioned.
Chairman: I think the question may have
been directed to the precise language of the Transitional Protocol
and what it meant when it said that measures should continue to
have their existing legal effect unless amended. We can come back
to it if need be.
Q457 Lord Lester of Herne Hill:
Can I go back to the stance taken by the UK Government in relation
to procedural safeguards? I have heard at a different occasion
from one of the Commission people the allegation made—and
it is no more than that—that the UK Government did not play
a strong and constructive role at all, but on the contrary sought,
surprisingly (or the officials thought it was surprising), to
water down the safeguards. We will have the opportunity of asking
the Minister about this but is there any evidence at all that
you have (that is evidence and not just rumour) indicating what
position was taken?
Ms Bateman: I would have to answer that question
very carefully. I have been very involved in the proposal on the
framework decision and the Law Society have worked for a long
time on it. I think it is widely known that there were six Member
States who were taking a certain position in terms of the framework
decision and the 21 other Member States were wanting to go ahead
and the UK was one of those six Member States, and as a strong
Member State and a leading Member State I think was able to—"influence"
is perhaps the wrong word—bring on board other Member States
to their position, but I do not feel I am able to comment in terms
of individual officials.
Q458 Lord Lester of Herne Hill:
Thank you very much.
Mr Crosby: May I just come back to Lord Blackwell's
question again? The question is that the UK may be governed by
some Third Pillar measure at the moment but may be outside any
amendment to that, so your question was what happens to the original
Third Pillar measure.
Q459 Lord Blackwell:
Yes, and can it be split between the amendment and the original?
Mr Crosby: Personally, I think it is a very
peculiar arrangement. I can imagine all sorts of difficulties.
I can imagine all sorts of difficulties in negotiating what happens.
However, the point I would like to make is that it is not yet
certain what is going to happen to Third Pillar measures once
all this is adopted. They might all lapse. I am not saying they
will; I am not saying they will not.
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