Letter from The Rt Hon Baroness Scotland
of Asthal QC, Parliamentary Secretary, to the Chairman
Thank you for your letter of 13 February reporting
that Sub-Committee E had cleared the Commission's Green Paper
I wanted to respond to your remarks about civil
law and judicial co-operation in the context of the Convention
on the Future of Europe. As you will know, with the coming into
force of the Nice Treaty, measures under Article 65 now fall to
be adopted by a qualified majority and by means of the co-decision
procedure, with the exception of matters concerning family law.
I share your view that civil law and procedure
is an essential element in the fabric of the judicial system despite,
as you rightly note, its relatively low political profile. We
shall want, so far as possible, to keep a firm lid on harmonisation
in this area.
3 March 2003
Letter from The Chairman of the Committee
to Mr Bob Ainsworth MP, Parliamentary Under Secretary of State,
Sub-Committee E (Law and Institutions) considered
the draft Decision at its meeting on 26 June. The Committee is
surprised and concerned at the apparently limited consultation,
both inter-Departmental and external, being undertaken by your
Department in relation to this proposal. We understand that neither
the Lord Chancellor nor the Lord Chief Justice has been consulted,
nor presumably the Lord Justice General or the Lord Advocate.
We would be grateful to learn that you have taken their views
and look forward to receiving a summary of the results of your
consultation. The Committee will be pleased to revisit the proposal
in the light of that information.
In the meantime the Committee would welcome
clarification of the following matters.
First, paragraph 3 of the recitals states that
"It is necessary to improve the national legal systems in
the fight against terrorism and their implementation". The
Committee would be grateful if you could explain what this means.
What are the deficiencies which the Decision seeks to make good?
Second, please identify the "national authorities"
(Article 1 (2)) in the case of the UK. Does it include the courts?
Third, Article 6 contemplates evaluation teams
interviewing, inter alia, "judicial authorities".
What is envisaged here? Does this include judges?
Fourth, Article 8 (5) provides that at the end
of the evaluation process "the Council shall take the appropriate
measures". Again, what is envisaged? Please give examples
of the sort of measures that the Council could adopt.
The document remains under scrutiny.
27 June 2002
Letter from Bob Ainsworth MP to The Chairman
I am grateful to the Committee for their examination
of this proposal and the comments contained in your letter of
I have noted the Committee's comments on the
apparent limited consultation being undertaken by the Home Office
in relation to this proposal. I understand that these have been
prompted, at least in part, by concerns that this draft Decision
would infringe on judicial independence in that it would require
the UK's judicial authorities to make themselves available to
the evaluation experts. I can assure you that this is not the
case. This proposed Decision is a streamlined version of an existing
mutual evaluation exercise, namely the Joint Action on mutual
evaluation of 5 December 1997, during the adoption of which judicial
independence was never brought into question. As no wide consultation
exercise was undertaken with the 1997 Joint Action, and given
that two such exercises have already taken place under this Joint
Action without any issues relating to judicial independence arising,
a consultation exercise in relation to this proposal was not considered
to be necessary.
The need to seek the views of the Lord Chancellor
and the others named in your letter would, of course, have been
necessary if this proposal were to lead to the direct evaluation
of the judiciary in the UK. However, the use of the term "judicial
authorities" in EU instruments is necessary to cover those
countries under whose legal systems prosecutors and magistrates
have responsibility for the investigation of criminal offences.
In the case of the UK, it is very difficult to envisage under
this proposal that the programme of visits (which would be based
on the evaluation team's report but drawn up by the UK) would
include an evaluation visit to a judge. This has not been necessary
under the existing evaluation exercise and the Member States who
have systems where magistrates and judges are much more likely
to be needed for such an evaluation, have not raised any difficulties.
With regard to your specific questions on the
text of the document, the Committee has sought clarification as
to what the deficiencies referred to in paragraph 3 of the proposal
are. This proposal is aimed at assisting Member States in strengthening
where needed their responses to counter-terrorism. As the Council
Framework Decision on combating terrorism recognised, there is
a need to reinforce criminal law measures within Member States
to combat terrorism. The UK already has firm and comprehensive
counter-terrorism legislation and an excellent record in implementing
international counter-terrorist agreements. Some other EU Member
States, however, who do not share our experiences of terrorism,
do not have in place specific counter-terrorist measures within
their legal systems. The proposal is also aimed at spreading best
practice across the EU so that, where necessary, the measures
already in place in individual Member States can be improved.
The Committee has also asked for the identification
of the "national authorities" named in Article 1(2),
in relation to the UK. The reference to "national authorities"
is a general term designed to incorporate all the authorities
necessary in each Member State that need to be subject to the
evaluation process. As stated above, the differing systems across
Member States mean that these will vary from state to state and,
in the case of the UK, would not include the courts. Once again
the authorities of the Member State would determine the programme
of visits by the evaluation team in question and it is very hard
to envisage a set of circumstances where such an evaluation for
the UK courts would be necessary.
With regard to the Committee's comments on Article
8(5), without knowing in advance the result of any future evaluations
it is difficult to predict exactly what measures the Council would
take. However, at the end of the evaluation the Council should
be in a position to identify shortfalls in the legal systems of
Member States as they relate to the terrorist response and to
note examples of best practice that could be recommended for adoption
across the EU.
This proposal is now not due for agreement until
the December meeting of the Justice and Home Affairs Council.
If you so wish, we will of course keep you advised of developments.
24 July 2002
Letter from the Chairman to Bob Ainsworth
Thank you for your letter of 24 July which was
considered by Sub-Committee E (Law and Institutions) at its meeting
on 9 October. We are grateful for your assurance that the references
to "judicial authorities" in the text of the draft Decision
will not lead to the evaluation of judges or magistrates in the
UK. We are also grateful for your explanation of the need for
the proposal. In spreading best practice across the EU, the Committee
would like to be assured that those conducting evaluation exercises
in Member States will seek to ensure that national legal systems
fully respect the fundamental rights of the individual.
The Committee decided to clear the proposal
10 October 2002