House of COMMONS
MINUTES OF EVIDENCE
HOME AFFAIRS committee
Tuesday 21 NOVEMBER 2006
PROFESSOR DR ELSPETH GUILD, MR FLORIAN GEYER, MR NEIL O'BRIEN
and MR PAUL STEPHENSON
USE OF THE TRANSCRIPT
Taken before the Home Affairs Committee
on Tuesday 21 November 2006
Mr John Denham, in the Chair
Mr Richard Benyon
Ms Karen Buck
Mr James Clappison
Mrs Ann Cryer
Mr Gary Streeter
Mr David Winnick
Memoranda submitted by the Centre for European Policy Studies (CEPS)
and Open Europe
Examination of Witnesses
Witnesses: Professor Dr Elspeth Guild, Senior Research Fellow, Mr Florian Geyer, Researcher, Centre for European Policy Studies (CEPS), Mr Neil O'Brien, Director, and Mr Paul Stephenson, Head of Research, Open Europe, gave evidence.
Q1 Chairman: Thank you very much for joining us this morning. This is the first session of a short inquiry that we are conducting which looks particularly at the influence of European Union issues on the justice and home affairs agenda. It is perhaps slightly unusual for this Committee as opposed to other parliamentary committees to be looking at European matters, but a great many things that we regard as falling within our domestic agenda, crime, immigration, terrorism and so on, are now very heavily influenced by what is happening at European Union level and we want an overview of what is happening. You will be kicking off the inquiry today. Perhaps each of you would introduce himself and herself for the record, and then I shall say a word about how we deal with this morning's session.
Mr Geyer: My name is Florian Geyer from CEPS. I work with Elspeth Guild. I previously worked at the University of Trier and was also a lawyer for quite some time. I came originally from Germany. I am very happy to be here today, and thank you for the opportunity.
Professor Dr Guild: I am Professor Elspeth Guild. I am senior policy fellow at the Centre for European Policy Studies, a professor of law at the University at Nijmegen and a partner of the London law firm of Kingsley Napley. I have a specialism in judicial co-operation in criminal matters and this year I published a book on judicial and constitutional challenges to the European arrest warrant.
Mr O'Brien: I am Neil O'Brien, director of the think tank Open Europe which has been going for about a year. We do work on everything to do with reform of the European Union, whether it is to do with economic policy, foreign policy and defence, the environment, institutional reform or, in this case, justice and home affairs. We publish work on some of the issues that you are looking at, particularly the use of the passerelle and the question of dual criminality and mutual recognition. I emphasise that neither of us is a legal expert or even a particular expert on justice and home affairs, but I thank you very much for inviting us here today.
Mr Stephenson: I am Paul Stephenson, head of research at Open Europe. I have been specialising in research in the justice and home affairs field for our organisation.
Q2 Chairman: We have four witnesses representing two organisations and we have about an hour and three-quarters. To make a couple of housekeeping points, clearly we will not be able to bring in all four of you on each question that arises. Given the two organisations, Members will rely on you largely to decide among yourselves which person in each organisation might respond best to a particular question. It will not always be possible to bring in the witnesses from the two organisations on the same question. Some of the questions that we have prepared are directed at one organisation or another simply because of the content of the evidence submitted. I hope that at the end of the session you will feel we have been able to cover all of your particular angles of interest. Based on past experience, if we try to bring in everybody on every question it becomes slightly undisciplined and unfocused. Having said that, I start with a couple of fairly general questions. Prof Guild, in terms of the work of your organisation, what do you say are its main interests or concerns in the field of justice and home affairs?
Professor Dr Guild: As to our greatest concerns, we have done a substantial amount of work which looks at how the transition from the pre-Amsterdam to post-Amsterdam period has taken place in respect of moving the fields of immigration and asylum into a framework of law created by the binding structures of European Community law and the transformation of judicial and police co-operation in criminal matters still under the third pillar. In that changing constitutional framework of the European Union we have paid a lot of attention to the example of Schengen. What happens when you have an agreement between a small number of states that become Europeanised or communitised into two different pillars? What does this do to the coherence of the overall structure?
Q3 Chairman: We shall go into the detail of this later but, to pursue it, when you look at what has happened over that period of time is your approach to start from the existing institutional arrangements in the European Union for decision-making, or do you start from an assessment of the major challenges that face European countries, like crime or terrorism, and the effectiveness of the challenge to them? They are different approaches.
Professor Dr Guild: We are very interested in what actually happens. We are not expert at Member State level on what different actors in different Member States perceive to be or construct as the particular threats at any particular moment. That is not what we do. For instance, we look at what governments bring to the European table as their main concerns, what happens to those concerns and how the policy options that are adopted in particular at European level address or do not address them or have adverse and unexpected consequences in respect of the mischief which they seek to address. We do not look at national level at what is going on and how different actors put forward different types of threats as problems; we look at what happens when we Europeanise these issues.
Q4 Chairman: Mr O'Brien, I invite you to pursue a similar line of thought.
Mr O'Brien: The angle from which we approach this is to look at whether or not the measures that are being adopted at the moment at European level are proportionate to the challenges that they seek to address and the likely political consequences of doing these things. One of the reasons this is a very timely inquiry is that this is a fast-moving, dynamic area. All of these things are being done with relatively little public understanding at the moment. This is a very good opportunity to address the point. Perhaps one would characterise our position on these issues in the following three ways: first, a belief that the attempt to harmonise Member States' legal systems strikes at the heart of democratic questions about control of the balance between security and liberties, which are issues that we tend to think of as being quite vital in terms of having national parliamentary control and public accountability. Second, one of the other things that we have talked about a bit in our evidence is the view that in the European Union one thing tends to lead to another and there is a lot of spill-over from one decision which often creates pressure for harmonisation further down the road. The third matter in which we have a fundamental interest is the whole question of majority voting about which we are quite sceptical. Philosophically, we believe in the European Union based on co-operation rather than majority voting and if something is of general interest in most Member States it will be agreed through consensus.
Q5 Chairman: In terms of the UK's overall approach, is it fair to say that the British Government over the years has been quite keen to participate in specific measures like the European arrest warrant but unenthusiastic about holding powers? It has not been wildly keen on passerelle and bringing all of this stuff into European decision-making. We have not joined Schengen. Perhaps I may ask each of you, not for a detailed policy answer, but the approach that the UK Government has taken. Is it your view that Britain's own security and anti-crime measures are more effective because of its relatively unenthusiastic approach or that it has weakened its ability to tackle problems in this country and at European level by not being more fully engaged in the European Union project, if you like?
Professor Dr Guild: It would be incorrect to say that the UK Government has been unenthusiastic about mutual recognition in the field of judicial co-operation in criminal and police matters. It was the UK Government in Tempera that very strongly pushed for this, and it has been very much a UK project.
Q6 Chairman: As an alternative to harmonisation?
Professor Dr Guild: Definitely as an alternative to harmonisation and maintaining judicial co-operation in criminal matters under the third pillar. But the UK did not ask for an opt-out under the third pillar; it asked for an opt-out under the first pillar in relation to immigration and asylum. It has chosen to go into asylum and stay out of immigration, but it never sought an opt-out on judicial co-operation on criminal matters and policing. Mutual recognition would have been a good basis and that would have been the moment to do it. The UK has also reached agreement to opt into the whole of Schengen which relates to judicial co-operation in criminal matters and policing. It is excluded only from the immigration and asylum and border control part of it. I think we can say that the UK has been quite an enthusiastic consumer of judicial co-operation in criminal matters via mutual recognition at the moment. Whether or not that addresses particular security concerns in the UK is a political and policing decision made at the highest level with full understanding, but I am sure that you will be taking evidence from the Minister on that matter.
Mr O'Brien: I would agree with some of that. I do not believe that the UK has been totally unenthusiastic about these issues. Broadly, it believes that a piecemeal approach is right and it should opt into things in which it is interested and avoid those things which it considers undesirable. Insofar as the Government has been cautious, I believe that that approach is right. In some ways I would have argued for greater caution about some of these matters. As the European Scrutiny Committee has argued, in particular giving up the principle of dual criminality was done quickly and too lightly. While I believe that a piecemeal approach is right, I think that in some ways the Government should be more cautious about some of these matters.
Q7 Mr Benyon: I want to talk about The Hague programme. I would be grateful if one member of each organisation could respond in relation to how the third pillar is working. In your view what are the major problems to be solved in tackling crime at EU level? What approaches do you feel work well and where are the obstacles in the way of effective action?
Mr Geyer: We are still in the initial period of the whole measures becoming applicable in day-to-day work. When we look at some of the measures on which we have data, for example the European arrest warrant - how many have been issued and the times required under the system for surrender of suspects of one Member State to another - we can see that there are positive outcomes which help to speed up procedures. When we look at Eurojust we can see that they are taking a down-to-earth, practical approach to helping judicial authorities in the Member States to co-ordinate themselves. We mention in our evidence the cases that have been referred to Eurojust. The general report of Eurojust explains very nicely different cases that have been dealt with and from that we can see that it is an added value. For example, in one case a search needed to be conducted in two Member States. It was a Friday afternoon. The case was transferred to Eurojust in order to organise an urgent search in another Member State which effectively was done at midday on Saturday. Within 24 hours Eurojust managed to organise a search in two different jurisdictions on different sides with the help of the judicial authorities of the Member States. That clearly points out that there is an added value in European judicial and police co-operation. I do not deny that there are some obstacles connected with the European arrest warrant particularly in connection with Eurojust, but there are also problems that derive from the decision-making process and institutional questions. One of the main concerns is that as long as measures are taken at the European level that are not implemented nationally the whole system is likely to go no further.
Q8 Chairman: Such as?
Mr Geyer: This was visible in many decisions taken by the council. For example, there was seen to be a need to strengthen Europol and there were protocols to amend the convention that established Europol. Those date back to 2000, 2002 and 2003. On many occasions Member State governments agreed that they needed to speed it up and ratify those protocols to strengthen Europol and make it more effective, but it has not been done until now. As far as we can see, that will be possible only in 2007. Clearly, it shows that Europe can make proposals but it is the Member States that have to implement them. When they are not willing to do so it is a major obstacle to proceeding in this policy area.
Q9 Bob Russell: What was it that Europol could not do that Interpol was doing?
Mr Geyer: In relation to our evidence or the protocols?
Q10 Chairman: Interpol has existed as a means of international police co-operation for some time. Why has there been a concentration on developing Europol which at best appears to be a subset of what Interpol already does?
Mr Geyer: Interpol and Europol are quite different in the tasks they perform. Europol as now constructed mainly processes and relays information between the police authorities of different Member States. Europol analyses and processes the information whereas Interpol, apart from the fact that it has 186 contracting states and so is an international organisation completely outside the European frame, has many more operational duties concerning information processing and giving information to police authorities in the Member States. As soon as Europol was conceived there were already thoughts about developing it further, as is being done by the protocols, to allow it not only to process information but to send its officials to Member States in joint investigative teams to help co-ordinate at Member State level. That is one thing that Interpol is not allowed to do.
Q11 Mr Benyon: Can you remember the original question?
Mr O'Brien: In terms of increasing the effectiveness of security across the European Union, the way forward is really more about informal and formal police co-operation than about further legislation. I am not convinced by the kind of arguments that are made by Commissioner Frattini who has asked rhetorically, "Are we going to wait for more bombs to go off before we legislate?" I believe that that is very much overdone. Most of the pending legislation is more about the side of the equation to do with the rights of the individual than that concerned with security and effectiveness. For example, pending legislation on the admissibility of evidence is thought to be more likely to move the balance between liberty and security towards individual rights; that is, to make convictions probably more difficult. There seems to be a consensus building up in this matter, at least in the academic literature. Certainly, one argument often made in Brussels is that we have legislated on the security side and now we need to legislate far more on individual rights to balance it, whereas my approach is that if we are initially cautious about what we legislate for at European level in terms of enforcement and we have, say, a more limited version of the European arrest warrant, it is less necessary to legislate to try to harmonise on the rights of the individual.
Q12 Mr Benyon: That leads me to my next question to CEPS. We are having a debate in this country on the balance between security and freedom. In relation to what Mr O'Brien has just said, where does CEPS feel that debate is moving in the European context? You have said that security cannot be achieved without securing fundamental rights and guaranteeing true judicial control and the rule of law. Do you believe that action needs to be taken to support either side of that balancing act?
Professor Dr Guild: We have done a substantial amount of analysis of the question of balance as between freedom and security. In a very large project called Challenge, which we co-ordinate with 23 universities across the European Union, we have come very much to support the position taken by the former UN Commissioner for Human Rights, Mary Robinson, that the principle we seek to defend is freedom and that security is a tool within the rule of law to achieve freedom, including fundamental rights. To look at it as a form of balancing, adding a bit of salt here and some pepper there, is not helpful in terms of how we conceptualise one of the fundamental principles of a liberal democracy.
Q13 Mr Streeter: Moving on to practical co-operation between Member States and some of the organisations that have been set up to implement that co-operation - Eurojust, Europol and presumably others - can you give me a sense of the scale of these bodies? Are we talking about three men and a dog or 400 people sitting behind expensive desks? Do you believe that the legal basis for these organisations is currently sufficient? Are these organisations working well in practice?
Mr Geyer: If I may deal with the first part of the question and consider how these institutions work, Europol has grown from quite a small number of officials to around 450 to 500 people situated in The Hague. It is quite big although in European terms maybe it is not the biggest. Eurojust is a very small unit comprising just 25 members sent by Member States: justices, magistrates or senior police officials. Eurojust members are not allowed to have assistants. Some national members of Eurojust have managed to have two or three assistants, but there are just 25 in the core. It is supported by a little secretariat, but its number is really reduced. Given the reduced number the work done by Eurojust is quite considerable. There is also the European Judicial Network situated within Eurojust which has only a secretariat. It is a network of 253 contact points in the different Member States, with one in Malta and 56 in Italy. This is co-ordinated in Europe by only a small number and effectively it is manned by national staff working in the European Judicial Network.
Q14 Mr Streeter: Are they working well?
Mr Geyer: I think that more could still be done. Eurojust itself says that it has the capability and possibility to go further but it cannot work when no cases are referred to it. This is another matter that I want to highlight. It is similar to the approach that we cannot agree at European level to implement legislation to provide security if Member States do not want to transpose it into national law. There is a similar question in relation to Eurojust which exists because of cases that are referred to it. When cases are not referred Eurojust cannot work. Apart from the 500 additional cases arising in 2005, it says that it has the capability and capacity to deal with more but it is not able on its own to instigate this work.
Mr O'Brien: My answer will be short because I have not published any work on this yet. Broadly speaking, I support the Government's caution in this area for a variety of reasons, in part because of the rapid expansion of these institutions, in part because of the continuing pressure for them to be able to take part in national police investigations and in part because of bodies like Europol being itself raided in an anti-corruption investigation a couple of years ago. If you have those kinds of problems caution is definitely the order of the day.
Q15 Mr Streeter: How far do you think the European Union's JHA programme can be achieved through practical co-operation alone, or do we need to develop common legislative solutions?
Mr O'Brien: I do not believe that we need to go much further down the road to try to legislate for these things. If anything, what we need is a rebalancing. De facto, during the implementation of measures like the European arrest warrant we have already seen that when Member States have legislated in haste they have subsequently, in implementing these matters at national level, repented at leisure and made various carve-outs. In some ways I think that we should try to go further in the direction of re-establishing the principle of dual criminality. We are concerned that if the law is not changed at some stage someone will be extradited for something that is not a crime in this country. There will then be a real problem and pressure for further harmonisation, and both of those would be bad.
Mr Geyer: I think it depends on how far we want to go and what we regard as our goals. If we think that there is added value in practical policing but also judicial co-operation and that crime, terrorism and all the other matters do not stop at the border, and if we want to try to find better and faster solutions to crime prevention and prosecution, from that starting point we ask the question: what are the tools that we want to use?
Q16 Mr Streeter: Presumably, your organisation would like the full-blown EU integration approach?
Professor Dr Guild: We certainly would not go that far. We are very sensitive to the historical and cultural differences in criminal law in particular as expressed within Member States. We very much support the principle contained in Article 151 of the EC treaty that cultural diversity is one of the great strengths of the European Union. We do not see it as necessary to go down the route of harmonisation in terms of either criminal law or procedural law. However, we see that mutual recognition of the principle results in very serious questions being asked about the treatment of the defendant. As a citizen the defendant is entitled to a proper defence. That leads us towards the question of approximation and in which fields one must then discuss approximation if the use of mutual recognition which enables prosecution provides nothing in respect of the rights of the defence.
Q17 Mr Streeter: You have mentioned in passing the reluctance of Member States to implement agreed legislation. Do you have any bright ideas as to what can be done about that? How can we overcome the reluctance to implement agreed measures?
Mr O'Brien: I am not convinced that it is necessarily a good thing for us always to be trying to force people to implement measures in a standardised way. That comes about partly because we try to implement legislation in a very centralised way. The European response is a classic example of this. If one allows greater flexibility in the legislation one has a lesser problem with Member States trying informally not to implement these matters.
Professor Dr Guild: If it is said that what a Member of State signs must be implemented and it will be automatically and directly effective as EU law as under the first pillar that Member State will be a little more careful about what it signs up to. What we have seen in Schengen and all the intergovernmental venues is Member States agreeing to sign up to things that they do not really like because they do not want to insult the French or Germans and then they do not get serious about it. If one wants to be serious about one's legislation it must be given binding effect.
Q18 Ms Buck: Mr O'Brien, do you see any practical advantages in mutual recognition, or are you absolutely on the other side of the fence?
Mr O'Brien: I believe that if we can very tightly constrain the scope of it there are some advantages. I would describe myself as being cautious rather than completely against it.
Q19 Ms Buck: What would the advantages be?
Mr O'Brien: The matter that is always adduced is greater speed in the process, the classic case being that of Hussain Osman, but people often make the case for giving up dual criminality in terms of the pace of these things. I believe that that is misconceived, because if you have the right kinds of forms and procedures in place and it is done as a judicial decision, as we do under the European arrest warrant, rather than a political decision, there is no reason why questions of dual criminality cannot be factored into the legal decision made by a judge and for the process to be just as quick as it otherwise would be but with greater safeguards, for example that a person does not end up being extradited for something that is not a crime in his own country. That argument is often over-egged.
Mr Stephenson: Mutual recognition is very beneficial only in terms of speeding up the process if we are talking about ideas on which everyone can agree. For example, it may be that all Member States can agree on what constitutes the offence of armed robbery. When one gets into areas such as murder where there is no agreed definition - for example, in some Member States euthanasia and abortion would be considered murder - to force mutual recognition on Member States is not necessarily helpful or beneficial.
Mr O'Brien: As a result of the example referred to by Mr Stephenson, Estonia, Greece, France and Slovenia have given up trying to reach a common view on swindling, racketeering and extortion. Belgium has effectively tried to opt out of the part of it to do with murder, and the whole question of attempts at crimes and participation in them have been opted out of by Ireland and Estonia.
Q20 Ms Buck: How does Professor Guild respond to that point? Do you see disadvantages in the abolition of dual criminality and, if so, what are they?
Professor Dr Guild: I start by saying that there is nothing inimical in the British Government abolishing the idea of double criminality. We are very strong supporters of the International Criminal Court. We have created international crimes which will be adjudicated at the International Criminal Court in The Hague. We do not see the necessity to harmonise the elements of those crimes. Within the International Criminal Court treaty we have the crime of aggression which is not something on which we are very clear at this point. The question is: how do we do this? The problem is one of not being too ambitious. If we see a real need for approximation of crimes we need to go down that route. I certainly agree with my colleagues Mr O'Brien and Mr Stephenson that mutual recognition raises an awful lot of fears and concerns in this area as it plays out in practice. I do not see how those will be put to bed without limiting the field within which the principle applies.
Q21 Ms Buck: I think you are choosing your words carefully. Does that imply that they are unjustified fears or that they are real problems?
Professor Dr Guild: Both are included. There are some that are probably unjustified. People may say that some of my concerns are unjustified; in other cases there seems to be a much wider acceptance of the justification. The problem is the principle. It permits both to take place.
Q22 Ms Buck: In the context of the advantages and disadvantages, how effective do you think the European arrest warrant has been in practice?
Mr Geyer: We have the figures in the written evidence. Two sets of figures have been made public at the meeting of the Home Affairs Council in Brussels in June. There have been 1,526 people arrested on the basis of European arrest warrants and 1,295 have been surrendered effectively. That is the number of warrants issued and those arrested. The time that is now required to surrender people has reduced from nine months under the old regime of intergovernmental mutual assistance in criminal matters to 30-40 days. It is even lower when the person arrested consents to the surrender, which is often the case. Sometimes he will be surrendered to his own country or whatever. I think it has now come down to 13 days. The average time for a consented surrender is 13 days. Another set of figures has been provided to illustrate that effectiveness is improving. As of September 2004 653 persons had been arrested and only 104 surrendered. That was at the very beginning of the system becoming practical. Within one year it has increased 10 times.
Q23 Chairman: Referring to dual criminality, it can work both ways, can it not? The age of consent in this country is 16, so it is against the law for an adult man to sleep with a female under the age of 16. I believe that in some EU countries the age of consent is as low as 12. Surely, one of the advantages of abolishing dual criminality is that if somebody from one of those Member States comes here and breaks the law we will be able to extradite that individual to face trial even though the act would not be a crime in that country. Do you accept that, Mr O'Brien?
Mr O'Brien: This works in an asymmetric way. The appealing thing about it is that you can change the way it is implemented in the UK unilaterally without having to consult other Member States, because as long as it remains under the third pillar there is no question of the commission challenging the way we deal with it under national legislation. The idea of having a negative list of offences for which we would not extradite people from this country which was discussed in the six months during 2001 when it was being drawn up is the way to go. The fundamental point is that this rests on the consent of all the other Member States and if one country says that the UK has abused the process by having particular provisions other Member States might retaliate.
Q24 Chairman: My fundamental point is that there is an obvious fear that somebody could be extradited from this country to another state for a matter which was not a crime here. The advantage is that we could extradite people from other countries under precisely the same circumstances; otherwise, we face the situation of saying that we cannot do anything about it?
Mr O'Brien: That is the logic of doing this, but I am saying that the position is not quite symmetrical.
Q25 Mr Clappison: Professor Guild, in your view do concerns about different standards in criminal justice systems and attempts to introduce minimum standards as the commission proposes stem from evidence of practical problems within the UK, or is it part of a wider view of the principle? If it is the former, what are the practical problems?
Professor Dr Guild: We have substantial problems in having consistent and coherent criminal justice systems that protect the defence and ensure effective application of prosecution procedural rules in almost all Member States. We know this because there is not a single Member State that has not appeared before the European Court of Human Rights on the Article 6 due process provisions within the past five years. We know that there are continuing problems. We have the perennial problem of delay in Italy; it takes for ever and a day to get a criminal prosecution to a conclusion. A series of questions has arisen in other Member States. We have had substantial concerns in both the Netherlands and Germany about the admissibility in court of evidence provided by intelligence services.
Q26 Mr Clappison: Can you give us one example of a practical problem in the United Kingdom?
Mr Geyer: Are you referring to the criminal justice system in general?
Q27 Mr Clappison: I am asking for an example that would warrant what has been proposed. What are the minimum standards? You have mentioned the different practices in other countries, but what are the problems here?
Mr Geyer: What do I put forward as a particular problem in the criminal justice system that would warrant the application here of minimum standards? The UK is certainly not immune to cases being brought against it in the European Court of Human Rights under Article 6. I am just trying to think of a recent example.
Q28 Mr Clappison: For example, in relation to binding over orders, which are pathetically small fry in the scale of things, the United Kingdom has been taken before the European court under the European Convention on Human Rights. There is an outstanding judgment in that area. This is all very small stuff and it can be put right in the ECHR anyway.
Mr Geyer: The European Court of Human Rights has said that it does not want to be a court of final resort for all cases arising in the Member States. It has said on a number of occasions that it does not consider itself to be the equivalent of some kind of supra-constitutional court. The UK does not come out well in a number of cases involving pre-trial detention and various aspects along those lines, and certainly we have more questions about pre-charge detention, which is a very hard question at the moment, and the extent to which the length of time of pre-charge detention is taken into account.
Q29 Mr Clappison: The fact is that all of this is dealt with under the Bail Act, is it not? Very careful consideration is given by judges as to whether or not the Bail Act should operate. Do you say that there is a problem with the Bail Act which has been in force for a good number of years?
Mr Geyer: I do not think that this is the inquiry in which one should be looking at the specifics of the Bail Act.
Mr Clappison: That governs pre-trial detention of which complaint is made.
Q30 Chairman: This is of interest to the Committee. We are part of a parliament which has recently resolved on a 28-day period of pre-charge detention, which this Committee unanimously supported in a report produced last summer. We are aware that in other European countries there is an entirely different procedure which involves people being locked up for a great deal longer before they ever get to trial. It happens here but legally the procedure is different. There is perhaps nervousness about the idea of bringing in common standards. For example, would it mean that we would not have been able to take the decision that we took last year on pre-trial detention? What is on the agenda here in practical terms? If it is all minor stuff it does not matter; if it goes to the heart of our ability to take a decision like that then it is very important.
Professor Dr Guild: We can consider the politically very sensitive case of pre-trial detention which appears to be coming back on the agenda, if I understand what the Minister said on the Today programme. Leaving that aside, as we know there are a number of civil liberties organisations in the United Kingdom, including Liberty, which are uncertain as to whether or not the existing legislation on 28 days is compatible with the European Convention on Human Rights, and undoubtedly that will be challenged before the European Court of Human Rights. If one talks about minimum standards and the ability to take a decision, do we want to withdraw from the European Convention on Human Rights? That was a matter raised by the previous government consistently but the current one has ensured that that is now incorporated in the mechanisms within which the United Kingdom works. If the European Court of Human Rights finds that the 28 days are inadequate and requires further safeguards in respect of bail will we say that those common standards are a bad idea and have interfered with democratic procedures? This is not a problem that starts at EU level; it is part of the process of participating in European structures which infringe on sovereignty.
Q31 Mr Clappison: Do you agree that harmonisation of the whole of the criminal law would be a huge undertaking and would mean a big change to our system? What problems do you believe mutual recognition, as opposed to harmonisation, poses for the common law system in this country?
Professor Dr Guild: The biggest problem of mutual recognition is the fact that in the end what it does is excite distrust, because as my colleagues Mr O'Brien and Mr Stephenson have mentioned you do not know what underlies it; you do not have a sense of confidence that if you hand over one of your citizens you know what will happen to that individual and can be confident that he will be tried in accordance with a set of rules which have been commonly agreed for offences which society here accepts ought to be regarded as offences. Whilst in the first instance it appears to be a good solution and one can paper over the issue of mutual recognition, in the end the problem is that it destroys the mutual trust which is at the heart of making it work at all.
Q32 Mr Clappison: You have made a connection between recognition and the problem of mutual trust, or mutual mistrust as you have put it to us. Can you give practical examples of problems that might occur in the UK and at EU level through lack of mutual trust?
Professor Dr Guild: I believe that the Chairman has already provided a particularly good example: the age of consent. That is a very sensitive issue that impinges on the question of what is childhood. Society's tremendous fears about the concept of paedophilia and incorrect allocation provide the clearest example of where the problems are likely to arise.
Q33 Mr Clappison: I should like to turn to Mr O'Brien and Mr Stephenson. In your memorandum you quote the House of Lords Committee which commented on the EU proposal to harmonise the rights of suspects in custody, which we have just been talking about. You say that "if this proposal is passed it could be impossible to stop the 'creeping competence' of the Commission" and it could lead to the "incremental unification of criminal procedures throughout the EU". What is your view on that?
Mr O'Brien: The reason why that is true and the Government is right to be very cautious about this is that this has been done without a proper legal base. The whole supposed legal base for the decision on procedural rights is a "logical deduction" from the principle of mutual recognition. The appealing argument that one needs basic standards if one is to have mutual recognition is being used in a slightly bogus way. There is no evidence that the commission looked at the practical problems of mutual recognition before it proposed this piece of legislation. Quite often in its logic it talks about better ECHR compliance. The problem is that Member States are ECHR compliant in different ways. The real world problems with mutual recognition are things like the extraction of evidence by the use of torture and so on particularly in high-profile cases to do with terrorism. I refer to the Ramda case. But the framework decision on procedural rights does not deal with any of those cases or questions to do with terrorism and national security. None of the things in it really addresses the practical problems that exist; it really uses a sledgehammer to miss a nut in that sense. There are certainly practical things that can be done. I would never dismiss the idea that everyone should be able to have a translator if these matters are being conducted in another country but that is said in the absence of a firm treaty for it.
Q34 Mr Clappison: From your answer I get the flavour that you see some competence creep in this. One is trying to remedy a small problem and it is moving by stages to something bigger and bigger in terms of competence.
Mr O'Brien: If you let the commission legislate purely off the back of the line under the current treaty about other necessary measures to increase confidence in the system it will be able to legislate on more or less anything. I would be very sceptical about letting it go down that route.
Q35 Mr Clappison: It is a bit of an adventure for it?
Mr O'Brien: Yes; it is testing how far it can push it.
Q36 Mr Clappison: I turn to Professor Guild again. What is your view on competence creep?
Professor Dr Guild: I think the first thing to bear in mind is that the commission does not legislate; it is the council that legislates in conjunction with the parliament. All the commission does is put forward a proposal.
Mr Streeter: That is like saying that the Civil Service is the only body that can make a decision.
Q37 Mr Clappison: Lord knows it actually does!
Professor Dr Guild: If one has given powers of delegated legislation as widely as has been done in this country it is not surprising that in some quarters there are complaints about the Civil Service actually legislating. We do not have that degree of legislative power being given to the commission in the context of the European domain.
Mr Geyer: In a way, this leads immediately to the problem that the commission does not legislate; it is the council and parliament that legislate. On the other hand, Member States are reluctant to move. The problem with the third pillar is that it is more in the hands of the council and the parliament is only consulted and left outside. One of our concerns, which is shared by all others involved in this, is that if we want to proceed police co-operation must come out of the third pillar of the EU treaty and be moved to a structure with institutional safeguards that allows for more participation by the parliament.
Q38 Gwyn Prosser: Continuing with the problems of third pillar decision-making, do you want to spell it out a little further? What are your main concerns about what you would consider to be deficiencies of pillar decision-making in terms of home affairs and justice?
Mr Geyer: One of the biggest problems in the whole field is that decision-makers are not clear as to where they want to go. Therefore, there is a big concern about giving too much power to Brussels and the commission. This results in leaving it in the third pillar structure where we have unanimity so that in the end it is for Member States to decide whether or not they want it and, if they agree, they have to implement it. On the other hand, it falls mainly within the decision-making framework of the council, which means that governments decide. The European Court of Justice is left out but that is also because Member States want it to be out. The European Parliament is left out because governments want it to be left out. At the same time, we complain that governments make the decisions. That leads me back to something I said at the beginning. If we are sure where and how we want to go we should find the proper tools to do it. The passerelle clause which was discussed in the council some weeks ago would be one of the solutions to try to move some aspects of the EU governmental structure - it does not have to be all of them - into the first pillar, which is the community structure that allows for proper European Parliament participation and for a higher standard of judicial control by the European Court of Justice. Again, that was stopped by some Member States, mainly Germany which said that it would hamper its constitutional aims during its presidency, but we do not know if that was really the issue for Germany.
Mr Stephenson: In terms of increasing parliamentary control rather than the power of the European Parliament over these issues, perhaps it would be better for Member States to reform their processes within national parliaments to give them more ability to scrutinise this sort of legislation. Another easy way to increase transparency is that at the moment in JHA meetings there are no cameras; they are conducted behind closed doors. That would be one beneficial step. The commission argues that at the moment the main problem is that proposals are being blocked and there is a need to move to QMV to push through these measures. But it does not acknowledge that the problem is not necessarily the system but the proposals being put forward: they are too ambitious and some of the measures cause constitutional problems for certain Member States, Germany being an example. I believe that if the will is there and the measure appears to be appropriate it will get through. The European arrest warrant was agreed in a little over six months, so it can be done. The problem is not necessarily the system but that the proposals go too far.
Q39 Gwyn Prosser: The argument advanced by the Home Office is that the problems of third pillar decisions are more to do with the content of the decisions being sought rather than the process and autonomy. Do you argue against that?
Professor Dr Guild: The Home Office has been a great supporter of the third pillar; it is something in which we have invested quite heavily. It may be a tool whose time has come to an end. One cannot expect to have binding - perhaps less but better quality - legislation which has effect and is acceptable within Member States if one wants it to be done on the basis of a gentlemen's agreement in an intergovernmental setting. That will not lead to the kind of results that one wants. On the one hand, the Home Office wants results; on the other, it does not want the mechanism by which to get them. There comes a point at which one has to say that one wants fewer but better quality results
Q40 Bob Russell: Mr Stephenson, you say in your written evidence that under the passerelle criminal laws would be passed through parliament as secondary legislation and would not receive full scrutiny. Can you give specific examples of the kind of provision that you feel may be subject to this new procedure?
Mr Stephenson: The commission gives examples in its memorandum of measures that it wants to be passed if the passerelle is used. One of the examples is the procedural rights framework decision giving suspects rights in custody, that is, a right to an interpreter and to legal advice. Another example is a measure to harmonise crimes of racism and xenophobia across the EU which I contend could be quite controversial in this country given the great debate that we had on the Racial and Religious Hatred Bill earlier this year. The original proposal would contradict some of the amendments won in the UK Parliament. If one assumed that that Bill had not come before the UK Parliament and it was proposed at EU level we could assume that the Government would probably sign up to it because it would be largely in line with its thinking. By the time the British public got to hear about the Bill it might be going through the European Parliament or Council of Ministers, but it would be much more difficult for them to influence the outcome of the legislation. I think that that shows quite a shift from the national level and a reduction in democratic accountability in relation to these measures.
Q41 Bob Russell: What would be the implication for the United Kingdom of the implantation of the passerelle clauses in terms of national sovereignty and parliamentary scrutiny? In your view what would be the likely public reaction, let alone parliamentary reaction, within the UK to such a change?
Professor Dr Guild: That is an interesting question. If we start by asking what the public's reaction would be, I think it would depend very much on how it was explained and to what extent the decision was justified. I believe that the decision is very justifiable on the basis that it is evident we would have better considered and more legitimate legislation if we used the passerelle and moved judicial co-operation on criminal matters into the first pillar.
Q42 Bob Russell: Would it be understood and appreciated by a Daily Mail reader?
Professor Dr Guild: Whether or not it would be appreciated by a Daily Mail reader, it could be presented in different ways. One could present it as a massive loss of sovereignty and handing over of the Crown jewels to Brussels. On the other hand, one could make the much fairer argument that this would ensure that what we would be adopting and agreeing to at European level would receive scrutiny by the European Parliament and national parliament and would be better legislation and under greater control than what currently happens under the third pillar. I believe that the Daily Mail reader might like it.
Q43 Bob Russell: Mr O'Brien, you have said that the opt-in is not as effective as the veto and also that majority voting would cause problems for the UK legal system. Why do you believe that to be the case?
Mr O'Brien: There are a number of pieces of outstanding legislation that we are currently blocking under the third pillar. One is the procedural rights directive because we are unhappy with the idea that, for example, every single person who is arrested would get an A4 piece of paper setting out his rights under European law. Therefore, in relation to all of the controversial measures that we are currently blocking, given that we are already negotiating on them, we have already opted into them and so would not be able to veto them. There is also the broader question as to why the opt-in is not as effective as the veto, the problem being that we have to opt in at the start of the process of drawing up legislation. We have always done that; we have never opted in at the end of the process, although that theoretically exists as an option. Normally, the problem within the European Union is not that there is some kind of catastrophic result in the council where one is horribly turned over but that one signs up for something that one quite likes in principle but as it goes through the council it is changed in ways that one does not particularly like. If one is in a non-veto situation there is not a lot that can be done about it. All too often we have to cobble together a face-saving deal that we are not particularly happy about but we can live with, whereas if there is a veto there is much greater influence because every single Member State has to be squared. One then has a better ability to steer these things in the desired direction. As to the point about greater scrutiny by the European Parliament, we can have greater transparency in Europe but if we move this to the first pillar there will be far less control by parliamentarians in the UK. All these things will go through as secondary legislation which raises all kinds of other questions. The European Court of Justice will get jurisdiction in this area for the first time. That causes a real problem. The commission has already sent out a paper saying that all the Member States are in violation of the framework directive on the European arrest warrant. At the moment Member States are free to ignore these matters, but if they are moved to the first pillar they will be sued because it does not agree with the way that these matters have been implemented. We will create a problem for ourselves. There are other knock-on consequences, for example external competence. Perhaps one wants to sign an extradition treaty with someone outside the European Union, but one cannot do it any more because there will be implied external competence if these matter are moved to the first pillar. As soon as one thinks about moving these things over it balloons into a series of different questions and problems. I believe that the Government is right to be very cautious about it.
Q44 Bob Russell: Mr O'Brien has given a detailed response to a very short question. Looking at this end of the table, do the witnesses agree with that?
Professor Dr Guild: I want to be fair to Mr O'Brien. Either one wants an effective system that works or one does not, but one cannot argue for an effective system when it is in one's interests and an ineffective system when it is not. We have to make choices. It does not seem to me to be tenable to present both simultaneously. As to the veto, I think that it is a mistake to present the council as some kind of external body in which the UK has no say. The UK and UKREP have been extremely active through COREPER in the council. We are highly regarded as extremely effective negotiators at EU level in relation to legislation, so it seems a bit disingenuous to present the council as somehow frustrating the UK's interests.
Q45 Mr Winnick: In reply to Mr Russell Professor Guild mentioned public reaction in the UK. Do you accept that there remains a great deal of hostility in the United Kingdom to all matters concerning Brussels?
Professor Dr Guild: It is very difficult for me as a jurist to answer a question that ought to be posed to a political scientist. My colleagues are infinitely better placed to look at public opinion and analyse it in depth. This is not my field.
Chairman: It is perfectly fair for you to pass on that question.
Q46 Mr Winnick: Perhaps the reason is the fear, justified or otherwise - we all have our own views round this table - that increasingly Brussels wants to take over much of what has been for centuries the role of the British Parliament and that national sovereignty is constantly being undermined?
Professor Dr Guild: I certainly agree with you that we see national sovereignty migrating. I am not sure that it is migrating outside the United Kingdom; I think that it is migrating among various issues. Whereas in 1992 there was a very strong consensus that national sovereignty was invested around the territorial borders of the United Kingdom, we have seen a gradual move away from that position over the past 10 years. However, we have seen an alternative move where we have invested a lot of the concept of sovereignty in the protection of our social benefits, so we see the idea of keeping foreigners out of our social benefits as a fundamental part of our national sovereignty. We have now invested sovereignty in that sense. The UK has always invested very heavily its idea of sovereignty in the field of defence, and I do not see any dramatic change in that at the moment. But I believe there is an extremely interesting question about where sovereignty lies and how it is expressing itself. I believe that it is right to follow this with great interest and a certain degree of anxious scrutiny at the moment. Are we investing the right of sovereignty of the state in those issues that we think are the most important ones, and do we want to be investing sovereignty in those areas?
Q47 Mr Winnick: Does Mr O'Brien or Mr Stephenson have any comment to make on that?
Mr Stephenson: I will give a very short answer. I think that you have hit the nail on the head. People's concerns about the European Union, which are very real, are driven by a fear of being outvoted on these issues. If we can move in Europe in the direction of co-operation rather than majority voting we can help to allay those concerns and move towards an EU with which people can be happy.
Q48 Mr Streeter: We have just heard that moving JHA to the first pillar may have all kinds of other consequences. To help me form a judgment on the issue, what do you say is the worst thing that has happened to the UK apart from the fact that it is not as effective a system as it might be? What is the worst thing that we are suffering right now as a result of JHA being in the third pillar?
Professor Dr Guild: It seems to me that the biggest concern here is the question of the rights of British citizens in a system where they are subject to an arrest warrant and can be transferred somewhere else and what their procedural rights will be. We are talking about train-spotters in Greece. It is all to do with the question whether our citizens are getting a fair crack of the whip abroad. I believe that to be a very serious and important concern.
Q49 Chairman: If we move into the first tier by a new treaty or the passerelle, or by a mechanism that shifts it more centrally to the European Union, can we look at the question of the competence of the commission in terms of being able to propose legislation or take the initiative? In this Parliament we have probably had more than 10 attempts to legislate in this area in the past 15 years without necessarily coming up with a wholly satisfactory system. The European Commission has produced a document about the rights of refugees which would, if it had been in a position to push it through, have taken away one of the major things that we have done for some time: the ability to detain a refugee who we think might otherwise abscond. The right to do that would be removed. Is that not a sign that when it does attempt to draw up policy in these areas the commission is either reluctant to do so or is incapable of drawing on the practical experience of national governments and parliaments that have looked at these issues in great detail?
Professor Dr Guild: I have watched from close quarters how the commission goes about putting together a proposal for legislation, and some is more and some is less effective. For example, there was a proposal withdrawn in 1999 to extend the right of the free movement of services. There are proposals put forward by the commission which the UK Government regards as extremely favourably, not least the infamous Bolkestein directive on service provision. The UK was extremely pleased with the proposal to move the place where control of a service provider takes place from the place where the service is provided to the country of origin of the service provider. Other Member States were wildly unhappy about that and in the end the UK lost on that one. The UK does not always lose, and it certainly has a very good record. It is not fair to say that the commission produces proposals which fail to reflect the experience and knowledge of the Member States. What may happen is that in finding a compromise between the different positions of different Member States on specific aspects of a proposal some Member States may feel that there are positions that they do not like. It is then a question of negotiating and it goes to the council.
Q50 Chairman: In the circumstances where a matter is proceeding and people do not like it both the commission and our own minister have suggested that if the passerelle clauses are implemented there could be an emergency brake - the same concept as in the constitution - and the matter could be referred to the council. Professor Guild, should we regard that as an adequate safeguard against the concerns about sovereignty and domestic policy that you have heard from the Committee?
Professor Dr Guild: In answering your question, the starting point is: what is adequate? If absolute control over where sovereignty will be invested is the fundamental concern nothing will ever be adequate. One must always reach a compromise if one wants common legislation at EU level. The UK Government has always taken the position that the benefits of participating in the system outweigh the disadvantages of having to compromise with the others, because we all seem to be doing a lot better working together certainly in terms of economy and one thing and another than otherwise. Therefore, in that system there will always be a question about how to compromise and find the best result with which everyone can live. Would it be more difficult to do that in the first pillar than the third pillar? I certainly hope that it would be more difficult to reach poor compromises purely because Member States do not think that they ever have to implement them. The problem to do with the European arrest warrant and differential implementation is not a sign of success; it is a sign of failure. If we had perhaps a less ambitious European arrest warrant which had wider support it would be easier to have it implemented in a common and consistent manner.
Q51 Chairman: Your colleague has given us good evidence that the European arrest warrant is working effectively, in that it is speeding up extraditions. This morning we have not received any evidence that despite these national reservations and concerns - the fact that there are anomalies and all the rest of it - there is a serious problem of criminals across Europe not being dealt with and apprehended because of problems with the European arrest warrant. Do you think that we would be in a stronger position had the European arrest warrant been passed into British law through secondary legislation in the House of Commons rather than the extremely lengthy and contentious parliamentary process required to get it through? If we had a process whereby it went through following an hour and a half's debate in each House it might have been a neater piece of European legislation, but would people really have been happier with it? Would there be any less crime?
Professor Dr Guild: This is a question absolutely for the police chiefs. Did I not just read some statistics that reveal crime is dropping dramatically in the UK? Leaving that aside, there is a procedural problem in a number of Member States. If one considers Denmark or the Netherlands, there is a system whereby a mandate is given by the parliament to the minister in respect of negotiations on a piece of legislation at European level. The minister is constrained by that mandate and must fulfil it as part of a parliamentary procedure. If the UK wishes to push to ex post facto control of what the minister has agreed it will always be disadvantaged in respect of EU law. If one pushes the discussion to the front end one will have better parliamentary control over what the UK is prepared to agree to.
Q52 Chairman: Mr O'Brien, from your point of view would an emergency brake be a sufficient safeguard?
Mr O'Brien: It strikes me that there are two questions here. One is whether these kinds of safeguards, like the emergency brake, will be incorporated into this. It is not clear that that will happen because the passerelle says that one can make adjustments only to the voting procedures, not the question of an emergency brake. Certainly, one will lose things that were in the European constitution safeguards, for example in relation to "serious cross-border crimes". The more substantive point is whether the emergency brake is enough. It seems to me that it is not. People do occasionally try to present this as being "as good as a veto". It seems to me that if that were so there would be no point in doing it; logically, it must be weaker in some sense. We could have an interesting discussion about the circumstances in which it might not be possible to pull the emergency brake, but the point is not just that this matter is in a "crunch" situation where there is a vote and one must veto something or get out voters; the point is about one's ability to shape legislation because of the threat of the veto. This is not just about creating a threat that we might get out voters in a grand slam way but about reducing our ability to influence legislation that we do want to see introduced.
Q53 Chairman: In a very polite way Professor Guild suggested to us that the problems in Britain is that we have chosen to allow a minister to go off and agree things behind our backs and do not bring him before Parliament, as some other Member States do, to question him about what is sought to be achieved. We do not hold them to account adequately when they come back and scrutinise the legislation until it is far too late. Mr O'Brien, your organisation is about greater transparency and accountability. To what extent could we overcome some of your concerns if this Parliament and other national parliaments were much better organised to keep tighter control over what ministers did, insisted on the right to scrutinise legislation at a much earlier stage and possibly had some formal veto powers themselves rather than just the European Parliament having democratic accountability?
Mr O'Brien: I have to declare an interest insofar as we are very strongly in favour of Parliament having exactly those kinds of powers more generally. I am not sure that it would completely allay our concerns; they would remain. However, just on the merits I think that it should happen. We have written a long pamphlet calling for the UK Parliament's European Committees to have the same kind of powers that the Austrian, Danish and Swedish Parliaments have. They have very good powers which help to promote a better national debate and increase scrutiny and accountability. That is something in which I am very strongly in favour.
Q54 Chairman: Professor Guild, do you believe that national parliaments should play a bigger role generally in the European processes? A lot of the discussion about the constitution in particular was about the European Parliament having a clearer role. When I heard parliamentarians discuss the European arrest warrant my impression was that the national debates had been very similar in each Member State but it was too late to influence the process.
Professor Dr Guild: If we really believe that diversity is the great strength of the European Union national parliaments have a tremendously important role to play. The work of your Committee and the House of Lords Committee is tremendously important in this field. It allows for discussion and debate around issues. I think that a strengthening of your role is tremendously important in the legitimacy of what happens at European level. That is absolutely the way forward.
Q55 Mr Streeter: I have questions about what I term variable geometry and the recent trend for some countries within the EU to do things together but not all of them. I have in mind Schengen, obviously, and the more recent Prüm Convention. What do you think are the implications for the UK and EU if this trend continues?
Mr Geyer: I believe that the most visible aspects of those agreements is the Prüm Treaty which was signed in May of last year initially by seven Member States: the Benelux states, Spain, France, Austria and Germany. I believe that this treaty will come into force on 26 November in Germany, Luxembourg and Austria. After that procedure it will be applied. It is very interesting to note that it starts to attract other Member States to follow this path. According to information on the German presidency website, 11 Member States have shown interest in joining in the Prüm Treaty, and Italy has already signed it. Looking only at that, one may think that it is a good thing that an avant-garde group goes ahead and then others think it is a good measure and they want to join in. On the other hand, we are quite critical about this approach. We do not believe that it is comparable with the time when the Schengen Convention was agreed upon in 1985 and implemented in 1990. At that time the European area had not gone so far in the field of justice and home affairs, so in a way one could justify it in order to establish the internal market and abolish borders. There was a little group that went ahead and then became a success story, and maybe Schengen could be looked at from that point of view. But in 2005 after we have had the treaty and all these issues have been incorporated into the European system and this is already dealt with on a European level there is a fear about an avant-garde group that does not even follow the lines of the treaty. It is foreseen that there can be enhanced co-operation allowed for by the treaty, but it is only as a last resort, and it needs eight Member States and must be within the procedure. The commission must be informed and the council must agree upon it, but if they do it completely outside and say, "Let's work together and do similar things but on our terms", that is the danger that we see. It might pre-design and shape certain structures, procedures and practical questions. They then say that it is only for Europe's good and then force it on the others because they have shown that it works and they have thought about it, although it is a mechanism that applies only to them. A fear of the UK and other Member States is that they are on the outside and have no possibility of influencing it by practical means.
Mr O'Brien: I agree with quite a lot of that. In general, I believe that the future of the European Union is about flexibility and groups of countries in ad hoc ways doing what they want to do. I completely agree with Mr Geyer about the need to ensure legally that those things are not done in such a way that they can be used to put pressure on other Member States either to participate or not. It is important that any kind of enhanced co-operation, as it is called in the jargon, remains open. For example, if the UK wants to join something like Frontex it is not stopped from doing so as a sort of punishment for not being in other things. We want flexibility but clear guidelines as to how that is used.
Q56 Martin Salter: Mr O'Brien, EU enlargement has been predictably contentious. In a few weeks' time Bulgaria and Romania will be admitted as Members of the EU. In your view what are the implications of enlargement for justice and home affairs issues, including the impact of labour migration and confidence in the justice systems in Bulgaria and Romania?
Mr O'Brien: To answer the second part of that, the introduction of new countries into the union, Romania, Bulgaria and probably Croatia fairly shortly, sharpens the question about mutual recognition because - I do not make a chauvinistic point because their own governments acknowledge this - a lot of these countries have serious problems with their legal systems. One point that the commission's monitoring reports on Croatia, for example, keep flagging up is very serious problems with politicisation and corruption in the judiciary. One wants to make sure one does not end up in a situation where the weakest Member States are used as the base from which to launch various politicised and otherwise ropey actions. It basically increases the tension at the heart of it.
Mr Stephenson: As to labour migration, the position is quite clear. Once these countries join the EU there is very little that can be done to limit the numbers of people who want to take advantage of their right to free movement across the union. As the UK Government is trying to do, it can limit the number of people who can come here and work legally for a UK company, but it cannot limit the number of people who want to come and work here as self-employed; it cannot limit the number of people being posted here by Romanian companies to work as employees of those companies in the UK. The amount of controls that can be put in place is very limited. There is some danger that by putting in place controls on the number of people who come here to work you will stop the people who will come here and contribute to the UK economy, whereas because of recent legislation, such as the EU free movement directive which came into force in April of this year, we are unable to restrict the free movement of people such as criminals; we are unable to deport criminals from other Member States from the UK if they commit a crime here, or stop them from re-entering the UK afterwards. Those are the issues that we should be attempting to address rather than necessarily stopping people from coming to work in the UK.
Q57 Martin Salter: How does that fit in with the creation of Frontex and rapid intervention teams when the real controls seem to be fairly weak and limited? There seems to be a bit of a dichotomy.
Mr O'Brien: In a sense, those two things do not really fit together at all. In practice the controls on the free movement of people are very limited. To sharpen the point that my colleague made, I believe it is pretty extraordinary that we have the Prime Minister at PMQs in the summer saying that anyone who comes here from another country and commits a crime should be automatically deported and three days later the House signs into law the free movement directive which prevents the UK from doing exactly that. That is a real example of the left hand/right hand. I believe that the free movement directive, particularly the points about non-automatic expulsion of people who have committed an imprisonable offence, has to be revisited at some point. About a month ago the Home Office said that it had stopped trying to deport people who are in UK prisons from other EU Member States because it has lost so many court cases on the point. That is a real problem and something that we need to revisit.
Q58 Martin Salter: What sanctions are available to a Member State's judicial system? Basically, does the sentence have to be served in the country where the crime is committed? Is there an ability to deport at the end of the sentence, or has the UK lost that as a result of what it has signed?
Mr O'Brien: We certainly cannot stop people coming back.
Mr Stephenson: If people consent they may be deported, but I can clarify that for you. There is an attempt to agree something called the European enforcement law to speed up deportations across the EU but that is being blocked at the moment in the council.
Q59 Martin Salter: As a broader issue, in your view what are the political and legal consequences of the fact that the UK has chosen to participate only partially in EU migration law?
Professor Dr Guild: In the enlargement and with the accession of Bulgaria and Romania we now have seven Member States who have said that they will place no restrictions on the free movement of workers from Bulgaria and Romania from 1 December 2007. Finland was the first. We have a number of other 2004 Member States. Sweden has also come in and Italy has indicated that it will do so as well. I suspect that Romanians are more likely to move to Italy to find work than to the UK. In respect of expulsion, British nationals are endlessly committing crimes elsewhere on holiday. British young men have a tendency to commit the same crimes again and again on the Costa del Sol with tremendous regularity, and we think it is a jolly good idea that they should pay the fines or serve prison sentences and should be able to go back and not be deported. Why should they not be able to go on holiday again? This is not one way. We are in a reciprocal system. Our citizens benefit enormously. How many people in the UK now own a property in another Member State? How many people spend their holidays abroad? Of course they get involved in various activities which are considered to be criminal acts in those Member States and are convicted and serve prison sentences. Do we think that for that reason they should be expelled and sent back here? Do we not think that they should continue to be entitled to enjoy the benefits of the internal markets?
Chairman: According to your nuanced view, we take people's passports away before big football tournaments. It is quite extraordinary. You could say that we should have a preventative approach to stop somebody going to another country because he has committed crimes in this country and we are worried that he might go somewhere and commit crimes during a football tournament. We do not take the view that our own citizens should be able to travel at will if we think that they have a record of criminal behaviour.
Mr Clappison: I have experience of this. It is highly embarrassing for an innocent, law-abiding British citizen to go to a country where football fans or any other hooligans have misbehaved and find that his country has been trashed by people like that.
Q60 Chairman: We do not necessarily think that this unqualified reciprocation is the right principle.
Professor Dr Guild: There is a whole series of agreements in EU Member States regarding football supporters and their right to move and restrictions on that right reached at EU level. This is not a unilateral UK restriction on the movement of supporters. There are serious questions about the extent to which it is proportionate, but this is certainly not a field that I want to enter into. At EU level the UK has argued very strongly for full freedom of movement rights for all British citizens. Therefore, the Government has not seen fit to pursue at EU level restrictions that we may personally think ought to be placed on some people.
Mr Geyer: I also think that football hooliganism is a specific topic and is also dealt with by certain legislation at European level. Every Member State does it because it is an exception to the rule. In this case we agree that there should not be free movement of people. It is not that the free movement directive does not allow governments to deport or expel. It is possible to restrict re-entry, so it is not the case that it would open up everything, but the crime or public security threat must be of a certain kind and level. Not every insult or criminal behaviour or misdemeanour would lead to such a reaction. For certain crimes there is, as before, the possibility of restricting and expelling individuals.
Q61 Martin Salter: How do you feel about organised neo-Nazi groups being able to travel across Europe to attend each other's rallies, because often they have the same membership as organised groups of football hooligans? I argue that it is not just football about which we need to be concerned. Belgium has an annual meeting for such groups at a place called Diksmuide. Some of the worst football supporters in Europe are from Feyenoord in Holland which I understand does not operate such a rigorous system as that in Britain. I very much support what the Chairman said. We do not regard this as an exception that proves the rule but it is commonsense and part of being a good neighbour to our European partners not to export some of our problems.
Professor Dr Guild: We are perhaps straying a bit into the question of the right of freedom of speech and the right of freedom of assembly versus the due duty of states to place restrictions on those freedoms in certain circumstances as set out in the European Convention on Human Rights and our understanding of that. Once we get into specifics perhaps we need to move into expertise in that field.
Q62 Chairman: I want to ask a question similar to that raised by Mr Streeter in the field of criminal justice. Immigration is an area where the UK is participating only partially in some of the European agreements. Can you point to a specific example of how this country's own interests have not been well served by the decision to be a partial participator in European Union decision-making structures as opposed to being a full member of Schengen and so on?
Professor Dr Guild: Absolutely. The classic example, which I raised with your colleagues in the House of Lords recently, is our decision not to join in the directive on rights of long-term resident third-country nationals. Under that directive a third-country non-EU national who has lived and worked lawfully in a Member State for five years has the right to seek work and exercise economic activity in other Member States. By refusing to enter into that directive the UK has prevented third-country nationals living here - US citizens, Australians, Indian nationals and so on who have been here for five years - from moving to take up appointments with companies in other EU Member States. They are stuck with the work permit scheme which may or may not enable them to further their careers or to get experience that they want in another Member State. Therefore, our third country nationals are blocked here, whereas everybody else's can move around. It also makes our third country nationals infinitely less attractive as employees to multinational companies that require their staff to have experience in a number of different Member States. Part of the population here is, therefore, in a highly disadvantaged position compared with third country nationals in other Member States; and that also has consequences for our businesses, because UK businesses cannot send third country nationals to other Member States with the same facility as other Member States. That is just one example.
Q63 Chairman: That is a very specific, clear case. Mr O'Brien, what do you say?
Mr O'Brien: I make two points. First, if this is the most serious problem that we encounter as a result of not being full participants in this area, in terms of the calculation of costs and benefits that would not be a clincher for me. Second, there is a flip side to what has been said. A lot of different Member States have regularised the position of a very large numbers of people from third countries in recent years, and that is a trend which seems set to continue because of the pressure that pushes migration across the Mediterranean. If one got rid of that rule all of the people whose position had been regularised in these other countries would also be free to come to the UK. If you think about the way that that debate is playing out in the US along the border with Mexico, that is a very controversial idea. We are talking of hundreds of thousands of people being given the right to travel around within the Schengen zone.
Chairman: That little exchange encapsulates some of the issues that we will pursue in our inquiry in the months ahead. I thank all of the witness very much. In this first session all of you have been tremendously helpful in setting the scene. I know that Professor Guild flew in early this morning - I do not know whether Mr Geyer did so as well - but we thank you for making the effort to come.