Examination of Witnesses (Questions 480
- 499)
WEDNESDAY 16 JANUARY 2008
Rt Hon Jack Straw MP, Ms Rebecca Ellis and Mr Kevan
Norris
Q480 Lord Jay of Ewelme:
I want to ask a question which is a slightly broader institutional
question than the one you addressed and really drawing on your
own experience of the Justice and Home Affairs Council under classic
Third Pillar arrangements and your experience of the European
Council over a number of years. I wondered whether you thought
that the new Third Pillar arrangements—QMV, the greater
role of Parliament, and so on—would alter the institutional
balance between the European Council and the Council of Ministers
and the Council and the European Parliament? Again, it is specifically
in relation to justice and home affairs, freedom and security?
Jack Straw: I think what we will see is the
Council of Ministers, the JHA Council, in practice making the
final decisions in more areas than was the case before. That is
my instinct. Of course, the emergency brake aside, it is open
to a Member State, the head of government, to insist that a particular
item goes on the agenda of the European Council, and you have
seen how the system works. That is certainly my instinct. So the
JHA will be doing more because it can do more, because it is much
easier for it to make decisions, and I think probably the agenda
of the European Council will be less dominated (to the extent
that it has been dominated by JHA matters) than it has been before.
On the European Parliament, obviously they will be much more involved
and we will have, as a government and country, to be more involved
with the European Parliament on these issues.
Lord Jay of Ewelme: Thank you.
Q481 Lord Blackwell:
One of the provisions on judicial cooperation in civil matters
is framed by reference to cross-border issues. If one ends up
with harmonisation around things such as cooperation in the taking
of evidence, access to justice, particularly in areas like family
law, is it naturally realistic to think that one would end up
with a separate body of law for cross-border issues and for domestic,
or will not in effect the cross-border harmonisation ultimately
cause harmonisation in domestic law as well?
Jack Straw: I think, my Lord, you are referring
to the new Article 65. It does speak of approximation of the laws
and regulations of the Member States, but it is preceded by the
statement that the Union shall develop judicial cooperation in
civil matters having cross-border implications based on the principle
of mutual recognition of judgments and of decisions in ex-judicial
cases. It then goes on to say it may include the adoption of measures
for the approximation of laws of Member States and it then has
a list of circumstances when it should apply. I know the wording
of this is different from the Article it replaces and some people
have taken the point that the phrase "particularly when necessary
for the proper functioning of the internal market" suggests
that it is wider. It does not exclude other matters with that
phrase, but it then provides an exclusive list of where these
measures could be taken. On the issue of approximation versus
mutual recognition, one of the things we managed to achieve—and
it goes back ten years ago, and I am proud to say I played quite
a part in that when I was Home Secretary—was to get the
principle established in the JHA area that we should move forward
by mutual cooperation and mutual recognition rather than by approximation
wherever possible. That is now well-established and well-understood
and it is obviously very important for the four communal countries
particularly. My sense is that the anxieties you have will not
apply. I think the idea that we would end up with a harmonised
family law, if you do not mind me saying so, is for the birds!
Why would anybody try? There are only 24 hours in the day, 365
days in a year. What purpose would that serve? How would the domestic
politicians in each country explain why we were—each of
us, not just in this country—subscribing to a significant
change in our family law when this has been very much a matter
for domestic jurisdiction? Do you want to add anything on this,
Rebecca?
Ms Ellis: Only to build on what the Justice
Secretary said and to note that Article 65 is clear that it is
concerned with mutual recognition, which is a helpful clarification
in the language.
Q482 Lord Blackwell:
If I could just clarify, my point was not so much that somebody
might try to do that but that it would be the inevitable consequence
of having cases decided with appeal to the ECJ that in effect
set laws for, for example, cross-border family law that you could
not easily disregard when you were then dealing with domestic
cases.
Jack Straw: That partly, of course, depends
upon how far the ECJ defines its jurisdiction on cross-border
matters, and I know that is an issue. I cannot say where we will
be in 25 or 50 years' time, but it is not an anxiety which I have.
To the extent that the work of the Council of Ministers and the
ECJ produces greater clarity and by that process and mutual recognition
a move towards the norm so that cross-border families have clearer
rights, I do not think people would complain about that in any
case. It is to do with the process by which that is achieved and
I am satisfied about the process. Is there anything you want to
add?
Ms Ellis: In family law in particular the unanimity
provision is retained under Article 65 and there is a passerelle
that has to be used on a unanimous basis and Parliament will have
an opportunity also under the new provision to have a say on whether
that passerelle is used. So in family law in particular
I do not think there is a particular concern.
Q483 Baroness O'Cathain:
Does that mean, Secretary of State, tracking back to what you
said about your constituents, who travel a lot to mainland Europe
and who now have holiday home or even homes in Europe, that family
law which applies in France, for example, in terms of inheritance
of property, is going to be harmonised with family law on property
here?
Jack Straw: If you ask me, I would put no money
at all on that prospect. I know a tiny bit about inheritance law
in France and family law and the idea that the French people or
the government would allow that to happen—
Q484 Baroness O'Cathain:
Or that we would synchronise with them?
Jack Straw: No, of course not. I have no fear
whatever that our family inheritance law is going to be taken
over by the French. Whatever else I worry about, that is not one
of the things. I have no fear about the German code or anything
like that. Aside from the very important point Rebecca has made,
I do not see what would prompt the Commission to come forward
with a proposal in this area and to spend a lot of officials'
time when it is hard to see what the public benefit would be and
what the percentage would be for the politicians concerned. The
Commission may propose, but it is made up of politicians who are
rooted in their own national identities.
Q485 Baroness O'Cathain:
Then they would say no?
Jack Straw: Yes.
Q486 Chairman:
The proposal we have seen in this Committee relates to the governing
law in respect of, for example, a Briton who owns a house in France
when it comes to inheritance and clearly there is a lot to be
worked out there, but one can see, I think, as this Committee
has said, possible advantages both ways?
Jack Straw: Indeed, and those issues are going
to arise all the time. They are an inevitable consequence of people
living and working outside their original country, and there are
more and more cross-border marriages as well both ways.
Q487 Lord Burnett:
As the Lord Chairman mentioned, we have actually been looking
into this proposal about wills and successions which recently
emanated from the EU and we have made certain comments. In the
event that the EU brought forward wills and succession policies
which were really not in our national interest or which were alien
to our common law system and particularly prevented people from
making their testamentary arrangements as they saw fit rather
than as laid down by some statute, what could we do to thwart
that if we are in the minority of one?
Jack Straw: First of all, there is the issue,
again picking up Rebecca's point, about whether this is subject
to unanimity. This seems to me extremely important and my guess
is that it would be. I think it is a very academic idea. You may
not. Rebecca, is there anything further you want to say on this?
Ms Ellis: No, just -
Jack Straw: Wills!
Q488 Lord Burnett:
It is particularly succession, is it not, rather than wills?
Jack Straw: Yes. We attach great weight to the
freedom of testamentary disposition!
Baroness Kingsmill: It has taken
up a great deal of our time, the issue of cottages in France,
I have to say.
Chairman: I do not think we want to go
into it in detail today.
Q489 Lord Burnett:
Are we thwarted if we are in the minority of one?
Jack Straw: Are we thwarted? Well, it depends—
Q490 Lord Burnett:
How do we stop it happening?
Jack Straw: I would have to get much more advice,
I am afraid, than I can offer you just now and I will come back
to you, if I may, My Lord Chairman, with a memorandum about this.
Q491 Chairman:
Yes. There is a question which you mentioned, Secretary of State,
whether it is a matter of family law, and if it is not a matter
of family law then there is the opt-in, which we will come to,
and in the last resort there is the emergency brake?
Jack Straw: The emergency brake, yes.[1]
Q492 Lord Burnett:
Just to follow on that and perhaps really ask the question that
we are talking about family law as if it covers all aspects of
the family law in the most general sense. Is it family law as
we tend to talk about it in this country—matrimonial law
concerning matrimonial issues and children and matrimonial property—or
are you reading it as including all the things the Committee is
discussing? We probably normally talk about succession in the
context of probate.
Jack Straw: I am not going to offer my own definition
of this. Do we have a definition?
Ms Ellis: I think it would have to be interpreted
in the context of the particular instrument. We would need to
look at what was the most appropriate legal base, but I think
it is clear from both the specific reference to family law and
the general legal basis for civil measures that the emphasis is
as far as possible on having cross-border implications. That is
in the Treaty and whilst there will be grey cases, as there always
are with any line, that distinction is drawn and I think we would
hold that to be significant.
Q493 Chairman:
Can I just wrap up this issue Secretary of State, by asking this:
you touched upon the deletion of the absolute requirement that
the measure should be necessary for the proper functioning of
the internal market. It is now only a particular situation when
there is competence. What areas were in mind, can you help us,
by the deletion of the requirement that it should be absolutely
necessary for the proper functioning of the internal market?
Jack Straw: I do not think I can help you on
that. Have you got a guess on this?
Ms Ellis: I think the provision in the current
Article 65 has in practice been interpreted in quite a broad way,
so having a closed list of areas which can be targeted by measures
is actually more helpful in clarifying what this covers than the
previous restriction to things which were not absolutely necessary
to the proper functioning of the internal market in light of how
things have developed.
Q494 Chairman:
Another subsidiary question. Are you able to help us as to the
expanded wording which you mentioned of 65(2)(e), which now includes,
amongst other things, the effective access to justice as well
as elimination of obstacles to the proper functioning of civil
proceedings. Was anything in particular in mind under this head?
Could it be quite broad in practice? One of the new heads in the
list is this effective access to justice, which everyone, I imagine,
approves of but could it in fact be quite a broad head?
Ms Ellis: Again, I think you do need to pay
some attention to other requirements in Article 65, as I have
said, the mutual recognition provision, the cross-border element.
I am not aware that there were any specific proposals in mind
when that specific paragraph was included.
Q495 Chairman:
Can we move on to criminal justice, unless any Member has a specific
follow-up question? The question is whether the Union's competence
in the area of criminal justice and policing would be extended
by what are now much more detailed provisions on action by way
of mutual recognition and also by way of harmonisation in respect
of certain offences under the Lisbon Treaty?
Jack Straw: My Lord Chairman, the scope for
cooperation on criminal matters under the new Treaty is not considerably
wider than in the existing Treaty. There is a new and express
legal basis for action on criminal procedure in Article 69A(2)
which resolves the current dispute over competence in this field
and the provision should also be seen against the additional safeguards
introduced by the new Treaty. The opt-in will apply to any proposal,
so we have a choice whether or not to participate, and in respect
of criminal procedural law under 69A(2) there is also a so-called
emergency brake. On substantive criminal law the scope for action
is similar to that envisaged in the existing Treaty and with the
exception of measures to tackle the illegal trafficking of arms
or the sexual exploitation of women the JHA Council has already
adopted framework decisions on the offences listed in Article
69B(1)(i). That said, there is one issue of scope and there is
another issue of activity and because, not least, we are moving
to the Community method there will be more activity. It goes back
to what I said by way of my introduction. We have to judge each
proposal on its merits and I hope most of them will be in the
interests of British citizens.
Q496 Chairman:
Can I take one that we have looked at again in this Sub-Committee,
that is minimum rights in criminal proceedings, where there was
certainly criticism. We took evidence from Lord Goldsmith and
we heard the comment that you have made today about the lack of
value in the lowest common denominator. Is that, for example,
an area where UK support under QMV may lead to meaningful progress,
the video recording or tape recording of suspects' interviews
and that sort of protection?
Jack Straw: What I gather is that we were one
of the six countries to suggest an alternative way forward based
on a resolution for practical action and proposals to make a difference
to the citizen on the ground, such as in relation to interpreters
and the recording of suspects' interviews. That goes back really
to what I said by way of introduction. It is in the interests
of British citizens without any question and I would suggest that
the basic rights which we afford particularly to suspects but
also witnesses are probably at the higher end of the spectrum
across Europe and that is what people are used to in the United
Kingdom as well, so this is very much in the interests of the
United Kingdom's citizens. But, as ever, we have to judge proposals
which come forward upon their merits and then argue about them
if we do not like them.
Q497 Chairman:
Theorising, perhaps, if another country resisted this measure
and if it pulled the emergency brake, is this a sort of area where
the United Kingdom might actually itself be party to enhanced
cooperation?
Jack Straw: It is perfectly possible. I know
some people find the idea of enhanced cooperation somewhat neuralgic,
but I think this is a sort of fancy term for there having to be
some flexibility within European decision-making when it is such
a large and diverse Union, and people cannot have it both ways.
They cannot both say that they object to this dreadful institution
called Europe imposing its will and suggest that the country should
have greater flexibility and then object to the facility when
countries can have a greater degree of flexibility. I will just
say one other thing on that, which is that I would far rather
enhanced cooperation (with a small "e" and a small "c")
be done within the EU treaties than outwith them as, for example,
happened over Schengen, because what happens then is that these
instruments external to the Union are then bolted on.
Q498 Chairman:
Yes. Within Pillar 1 or within the new Lisbon Treaty they will
also be seen by the parliament?
Jack Straw: Yes.
Q499 Chairman:
Unless there is any follow-on question, can we then move to the
rather specific subject of the environmental damages and ship
source pollution cases which identified in the First Pillar a
legal basis for measures defining criminal offences and to a degree
sanctions. The question I wish to ask is whether such measures
will in future have to be adopted on the basis of the new Article
69B(2), which also envisages criminal competence, or could they
still be defined under, for example, the provisions on the environment,
in other words outside Title IV and so outside the opt-in?
Jack Straw: The advice I received very clearly
is that they had to be decided under the new specific Article
and I understand there is a general presumption within EU jurisprudence
that a specific legal base, where available, is always to be preferred
over a general one and this one was designed to provide a clear
express legal base for legislation on criminal matters and sanctions
where this is needed to ensure the effective enforcement of harmonised
rules in other policy areas. We have no reason to believe that
legislation in this area will not be brought forward under 69B(2).
1 The Secretary of State for Justice has since written
to clarify that the so-called "emergency brake" would
not apply to legislative proposals based on Chapter 3 of Title
IV (judicial co-operation in civil matters) of the Treaty on the
Functioning of the European Union. As per Articles 69A(3) and
69B(3), in the context of the area of Freedom, Security and Justice
the emergency brake would apply only to certain aspects of Chapter
4 of Title IV (judicial co-operation in criminal matters) of the
Treaty on the Functioning of the European Union. Back
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