Select Committee on European Scrutiny Minutes of Evidence



Examination of Witnesses (Question 20-36)

MR BOB AINSWORTH, MRS FENELLA TAYLER AND MRS LESLEY PALLETT

WEDNESDAY 9 JANUARY 2002

  20. Yes?
  (Mr Ainsworth) No, I have not, not yet.

  21. Would you consider doing that, Minister, in the short time available?
  (Mr Ainsworth) Is the honourable Member concerned about it?

  22. I am thinking of the comment we heard this morning from another member, Mrs Dunwoody, that there are concerns across the floor of the House that raise a number of issues. Am I not right that it is one of your members of the European Parliament who is rapporteur on this. From my experience when I was rapporteur or spokesman for the Conservatives, I was always very flattered when the Minister sought me out to explain some of the concerns that we had at home. Would you consider that this was a useful course of action?
  (Mr Ainsworth) If there are concerns about the Framework Decision itself, yes, most certainly that should happen. As I say, there is an amount of detail that needs to be settled and we are free to settle it within the national legislation that we plan to bring forward, and that is a matter for the House to do so.

  23. Just to enable him to read the note that has just been passed to him, could I ask, following on from that, about one of the detailed concerns that was clearly felt by the Committee this morning which is the specific issue of dual criminality. What assurance can you give us today on the issue of plane spotting, for example? Clearly plane spotting is considered legal in this country and we had an incident recently whereby 12 or 13 British citizens were imprisoned for a considerable period of time and now face returning to Greece to proceed this, and there is a concern that that is just the type of issue—and perhaps euthanasia is another one to which Mr Cash referred—that many of us had not thought that we might be or one of our constituents might be subject to an arrest warrant for extradition. Have you considered how Article 2(2) can be tightened up to remove any such situation? Minister, you must agree that it is an alarming situation whereby the Greek authorities have still not produced anybody who is charged with the murder of the Defence Attaché in Athens some considerable time ago. We now have a situation where people that were engaged in what is considered an innocent activity in this country—plane spotting—are imprisoned without charge, which would certainly not be the case in this country, and now face charges being laid against them any time shortly. What immediate plans have you to tighten up Article 2(2) to make sure that innocent activities in this country will not mean that our constituents face prosecution in a country like Greece once these provisions come into effect?
  (Mr Ainsworth) There is no requirement in the Framework Decision for the British Government to remove the dual criminality requirement for anything other than those areas covered in Article 2(2) and covered by length of sentencing in 2(2). Whether or not we do go further than that is a matter for us, it is a matter we have said we will come back to the House on, and we will reflect upon it before we bring in further legislation. So the only area where we are obliged by the Framework Decision and where at the moment we are able to remove the dual criminality provisions are those areas that are covered by the list and those areas that are covered by the minimum sentences, nothing else.

Chairman

  24. Minister, may I refer to your letter of 13 September to those who attended the debate in Standing Committee B on 10 December. In Standing Committee you said that it had been agreed that future texts of Article 5 would guarantee a retrial. Yet within a day a further text was produced by the Presidency which contains no such guarantee. Can you explain why the UK did not insist on a text corresponding to the agreement you mentioned in Standing Committee?
  (Mr Ainsworth) Can I say to you, Chairman, and to the Committee, that there was no intention to deceive Committee B. The text going into various meetings did have that provision within it, and I was trying to keep the Committee aware of a moving situation, as we are required to do under scrutiny arrangements, and to do our best not to hide the latest situation from the Committee. I attempted to bring the Committee right up-to-date with what the current situation was, and the text going into those meetings required a retrial in those terms. You will see and you will be aware that that wording changed. It would be helpful if I were able to explain to you exactly why that changed but it was a negotiation and I am not able to do so. What I am able to do and what I have done in writing to the Committee is give a very clear indication that it is our intention when bringing forward the legislation to bring it forward in such a way that it makes it very, very clear that where we are talking about a decision taken in absentia, there will be, where it is required, a requirement to guarantee a retrial, and we believe that we are fully able to do that within the wording within the Framework Decision. If we did not believe that we would challenge the situation, but that is our intention. We see no reason to backtrack from that and that is a very clear assurance that I can give to the Committee and to the House.

Mr Marshall

  25. I can only press the point that you have just made, Chairman, and thank the Minister for the response he has already given. Just for my simplistic mind, the Government's position is that it will impose this higher condition than exists at the present time in the Framework Document and that the Government believes that it will be able to sustain that higher condition even though the present Framework Document only refers to the exercise of a right of appeal. The Government's lawyers are quite clear, are they, that we can sustain that position?
  (Mr Ainsworth) You can see the new wording that emerged from the latest document. The person who is subject to a European arrest warrant—this is where an in absentia decision has been taken—will have an opportunity to lodge an appeal or opposition in the issuing State and to be present at the judgment. We would have been far more comfortable if it had said clearly and explicitly a retrial. I say again that it is our intention within our legislation to use those words and to put those words in. We see no way that that can—

  26. Those words being a retrial?
  (Mr Ainsworth) A retrial. We do not believe that is challengeable within the Framework Decision, and so that is a clear commitment we can give the House and that is our intention with regard to the legislation.

Tony Cunningham

  27. Could you tell us whether or not the UK Government has made or will actually make an interpretive statement in the Council itself that it will not surrender persons convicted in absentia without the guarantee of a retrial?
  (Mr Ainsworth) If we thought it was necessary we would do that.

  28. That has not been done yet?
  (Mr Ainsworth) We have not done that and we do not believe that is necessary. We believe we have the ability to bring in legislation within this Framework Decision that uses those terms and gives that assurance, and that that is sustainable. If we are given any advice that is not so then we would have to do something else, but that is not the advice that I am given. The advice that I am given is that it is sustainable that we bring in legislation that guarantees a retrial and that is our intention.

Mr Connarty

  29. I want to pursue this. Just to be clear, what was said earlier was that the United Kingdom would bring in legislation, that is not just bring in legislation that anyone extradited to the United Kingdom who had been tried here in absentia but that anyone extradited from the United Kingdom would not be sent back unless there was a guarantee of a retrial. That is the position of the government.
  (Mrs Tayler) That is the position. That is the issue that people are concerned about. We are not concerned about people coming here, are we, we are concerned about the situation where people have been tried in absentia abroad and are potentially sent back without the right of a full retrial.

  30. What sticks clearly in my mind is it was quite clearly stated by yourself in Committee B, "it has been agreed that future text will guarantee a retrial if a person is absent for the original trial". Exactly who was it agreed with and who represented the United Kingdom and was present at that agreement? In other words, where did that fact that you stated then come from and why has it changed since? It does seem to me when a minister says "it has been agreed having been to the appropriate council", they are talking about a factual incident, something that will be minuted somewhere with the consent or agreement of the people on the committee. If that has been overturned it would appear to me that that is what the United Kingdom government should be challenging, the right of the Belgium Presidency to overturn that agreement. If there was not, in fact, an agreement then clearly there has been a misunderstanding of what went on before the text was written by the Belgium Presidency?
  (Mr Ainsworth) Let me be clear about that, that was the wording of the documentation going into the last negotiation.

  31. That is not what it says there. It says, "it has been agreed that future text will guarantee it". It does not say that the document had this in it.
  (Mr Ainsworth) As I said, there was no intention on my part to deceive anybody. I was trying to reassure people about the direction in which the negotiations were moving. I was aware that the document was written in that way. I was aware that a meeting was about to start in Brussels. I made the Committee aware, or I attempted to make the Committee aware, that that was the wording contained within that documentation. By the end of that negotiation, this was not an imposition of the Belgium Presidency, the wording had changed. I immediately wrote to the Committee to make them aware that the wording had changed and to give them the assurance that I am now giving to this Committee that it is our intention to frame our legislation in that way. If the words I used were misleading I can only apologise for that, I was attempting in a very fast moving situation, where there were continued discussions, where documentation was being pushed through, we were trying to get them to scrutiny committees as quickly as possible so that they can follow the drift of those negotiations. I was trying to keep them as up-to-date as possible.

Chairman

  32. I asked an earlier question on the same issue, this is not an attempt to assist the minister, far be it from me to do that, it is my understanding from your answer to me earlier that when you made your statement in the Standing Committee you thought that that was what was going to be agreed, at that time that was the document going to the presidency. When you made that comment at the Committee, from when you had that in your mind, it was changed by the Presidency.
  (Mr Ainsworth) Chairman, I have no problem with you trying to assist me at all, if you want to do that you will get no objection from me. I was asked to go in front of the Scrutiny Committee and I was happy to do so. We were going into a meeting at the time and they were concerned about the documentation that had actually been laid and was therefore under scrutiny. The wording in the documentation left a bit to be desired. I was aware that there was new documentation, there was a new meeting taking place and in that documentation it did say that there would be a guarantee of a retrial. I made the Committee aware of that. By the time those negotiations finished, which was only a day or so later, that had changed. I wrote to the Committee straightaway to tell them, "I am sorry, I have effectively misled you", because this was the wording that came out of that Committee. If we are going to have effective scrutiny and if you want me to make documentation available to you quickly and repeatedly those kind of issues are going to arise. I hope you would not want the Home Office to say, "we will let you see it at the end of this process", you would hope we would be open as the process is on-going and try to keep you as up-to-date as we have now. Effectively we gave a reassurance that was not worth anything at the end of the day in that arena. We are now making certain that we are making it clear to the Committee what our intentions are, and are our intentions are to use those words.

Mr Connarty

  33. There is no intention on my part to make any point against the minister. I have been on this committee long enough, and previously served on the directive sub committees, to understand the shifting nature of European legislation and negotiations. What I am concerned about is when the United Kingdom thought it had an agreed position that position was the right position for the EU, not just for the United Kingdom, that people should not be extradited without the guarantee of a retrial if they had been tried in absentia. That was for the whole of the EU. I just do not happen to think it is sufficient for the United Kingdom to say, it is all right, we will write it into our legislation that we will not send anybody back to any country. The point is that we did think we had negotiated an EU-wide agreement. I think it is beholden on the United Kingdom government, because it is supposed to influence the EU in a correct way, to go back and argue that position for everyone in the EU. No one in the EU should be extradited to another country where they have been tried without the guarantee they will have a retrial and proper legal representation. Anything else is a breach of justice. It does seem to me the minister would have an opportunity, or the United Kingdom government would have an opportunity, to go back and renegotiate the final text so that the guarantee of a retrial is EU-wide. Is the minister saying he has abandoned that strategy or does he think the government are still willing to argue that case?
  (Mr Ainsworth) I accept what my learned friend says. In an ideal world that would be so, we would be very comfortable with that going in. Members will be aware that before that meeting there was not agreement across the EU and there was not likely to be agreement across the EU. There was negotiation and numerous things changed. As I tried to say to the Committee, I cannot pin down exactly why that particular wording changed. If we thought that there was a chance of getting agreement, and this needs to be unanimous across the board, with that wording in we would be going back and doing exactly what you are suggesting and trying to achieve exactly that. If we were not comfortable with our ability to be able to enshrine those words in our own legislation we would be doing what was suggested over here, and that is making a statement. We are comfortable with our ability to be able to do that. With regard to our own citizens we are able to give that reassurance. We are confident we are able to give that reassurance. We do not think there is anything to be gained by attempting to reopen the issue.

  Mr Connarty: That is a very sad reply.

Chairman

  34. Are you seeking to assure us that in Article 5(1), where it does not specifically mention retrial, it is the intention of the United Kingdom government to ensure that any of his citizens who are aggrieved by any decision taken will have a right of retrial when you bring the legislation about to assure that?
  (Mr Ainsworth) It is my understanding that we are able to do that. We are able to do that within the Framework Decision and we intend to do that. If I have doubt about that I would tell the Committee whether I have doubt about that, but I do not.

Mr Cash

  35. It is all very well, Minister, for you to take advice and to come to a conclusion on the basis of that advice. I do not want to go into the pre-history of this because I am aware that these things can happen. What I am more concerned about actually is the substantive question, which is whether in fact in the Extradition Bill it is going to be possible in a way that it will stand up, if and when it ever came before a court of justice, that this interpretation that you are telling me you have been advised of would be realistic and would actually be sustainable? I am, therefore, going to ask you quite clearly whether we can see the advice that you were given. One of the problems in this whole arena of European scrutiny is that whereas we would be able to draft our own legislation and make it quite clear, as you obviously intended when you went into that meeting, that you would guarantee a retrial, in practice, for reasons which are obscure to me, other countries did not want that and, therefore, you were put in an impossible situation. I am not going to criticise you for that. What I am saying is, we want to be guaranteed when this Bill comes out it has provisions which do stand up in relation to the Court of Justice so it cannot then be overridden, like the Merchant Shipping Act, and we then get told, "that is what we thought on advice would be all right but in practice it was overtaken by the courts and the Court of Justice. So would you be good enough to let us have a copy of that advice?
  (Mr Ainsworth) I think you are over-dramatising it when you say that I was put in an impossible position. I was responding to questions of scrutiny, I was attempting to keep the Committee as up-to-date as I could, and subsequently the wording was changed and I told the Committee of the change and made them aware of it. I can only tell you that it is not normal for Ministers to publish advice. I can only say to you that I have satisfied myself that our intention in the way in which we intend to bring this Framework Decision into being in this particular area of decisions in absentia, and the right of a retrial in those circumstances, is not challengeable in the actual legislation itself, and I have satisfied myself that that is not so, and that there is no ability to overturn particular decisions and that that is not going to be a real situation. If I were worried about that, we would be looking to change the words, but that is our intention—to make it very clear, enshrined in British legislation that where a sentence has been given in absentia, the person will have a guaranteed retrial if sent back to the issuing state, and I see no way that is going to be overturned.

Mr Hendrick

  36. Can I apologise for leaving the meeting for another meeting briefly and this point may have been covered while I was away. Can you tell me, Minister, which countries have an objection to retrial and what the rationale behind that objection is? I know it is not your responsibility to speak for them but just as matter of interest.
  (Mr Ainsworth) I would like to be able to but, as I say, there were lots of changes to the wording in order to get agreement across the 15 countries and this was one of them. If I were able to clarify the position for the Committee as to exactly why these words were chosen against those which we were far more comfortable with, I would be happy to clarify the position, but we did have the agreement of 14 countries going in and we had the agreement of 15 countries coming out. There have been substantial changes in different areas and it is not possible for me to be able to say to you exactly why that was changed. The only guarantee that I can give to you is if we thought we could get it reinstated that would be something we would be looking at, but we do not, so I would not support the point that Mr Connarty was making as to why are we not going back and trying to get this for all of our European citizens across the piece. We do not think that that is realistic. This was the end result of the negotiations that was reached in unanimity, but we do feel we are able to give a guarantee with regard to our own citizens in these circumstances.

  Chairman: Minister, thank you very much for coming along this morning. It has been very interesting and we will now thank you and allow you to get on to your next meeting.


 
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