Justice 1 Committee, 17 Sep 2003

Meeting date: Wednesday, September 17, 2003

Official Report 196KB pdf

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Justice and Home Affairs in Europe

The fourth item on the agenda concerns justice and home affairs in Europe. I remind members that the purpose of this item is to examine the issue in public and perhaps to identify one or two European proposals that the committee might like to scrutinise over the next 12 months.

I welcome to the meeting Colin Imrie, who is the head of the access to justice division, and Louise Miller, who is the head of branch 2 of the civil justice international division, of the Scottish Executive Justice Department. We have a number of questions for our two witnesses that will allow us to investigate further any issues that might be important to the committee.

I will start with a general question. What key areas of justice and home affairs policy is the European Union legislating on? What are the drivers behind that policy and which of its aspects will impact most on the Scottish Parliament's work?

On a more structural issue, can you provide any guidance on how we can best work with the EU to ensure that something that we did not see coming along the tracks and that could affect the Scottish justice system does not slip through? How do we get in there as quickly as possible to ensure that we know whether anything is coming along that will affect Scotland?

The aim of European Union co-operation in the field of justice and home affairs is the creation of an

"area of security, freedom and justice"

by 2004. That aim has been adopted to underpin security for freedom of movement, which has been strengthened considerably in the EU over the past 15 years. As a result, the aim is to promote effective security co-operation between EU countries while respecting fundamental rights. The fact that cross-border security and justice measures can be pursued while individual rights are respected is an essential guarantee for member states and citizens.

A large work programme was launched in 1999 and it will be reviewed in 2004. A lot of work is being done to tackle cross-border crime, which is of direct interest to Scotland, and to promote cross-border access to justice in the criminal and civil fields, which is equally important.

Another key element, and one that is probably the most important to the Italian presidency, is the work to tackle illegal immigration and to promote the strengthening of the common borders of the EU. The Italian presidency has stressed that particular focus.

Another area of work is the development of a common asylum policy in the EU. The matter is largely reserved, but we are interested in a small number of measures such as the provision of legal aid to asylum seekers.

We are interested in a number of those areas in so far as they affect Scotland. First, we are interested in ensuring that Scotland does not become a haven for criminals. For example, the measure that was just being discussed is clearly related to ensuring that we can play a similar role to that which is played by other parts of the EU in tackling that cross-border crime effectively. Secondly, we have a direct interest in promoting cross-border access to justice. Louise Miller, who is head of the team dealing with civil judicial co-operation, can say something about the work that is being done to promote access to children across borders under the parental responsibility regulation that is due to be agreed as early as the next European Council meeting. That will be in early October, assuming that all the negotiations are complete.

It is just as important that Scottish bodies play a full and active role in EU co-operation in the field of justice and home affairs. A particular priority for us at the moment is to promote more active involvement. Another of our priorities is to ensure that EU laws are compatible with the principles of Scots criminal and civil law, so that when measures are agreed in Brussels, they can be implemented in Scotland in a way that complements and strengthens our systems and does not undermine them in any way.

I could say something about what is coming up in the current work programme if that would help. I suggested that a document that was prepared by ministers on ministerial priorities for justice and home affairs be circulated

We have that.

Colleagues will probably pick up on individual points, but it is good to have them set in context. The other issue is how we can get involved and where we can add most to the process. Presumably you would suggest that that should happen as early as possible.

Definitely. We have just had an internal review of the way in which we operate, and we are sketching out a work programme in EU justice and home affairs for the next four years. Many of the measures that are being proposed will not be agreed for three or four years; they will certainly not be implemented within that time. It is therefore important that we look ahead as well as considering the immediate priorities.

To be honest, it is far more effective to intervene at an early stage. If difficulties and problems are included in a Commission proposal, it is easier to deal with them at that stage rather than allowing them to become a political problem at the last minute because we have just woken up to them. The earlier that we are involved the better, and we would like to work with the committee to help to identify areas that are of particular interest to Scotland.

For example, we expect the Commission to make a proposal for a framework decision on minimum standards in criminal proceedings. That proposal, which we expect to see later in the autumn, could have substantial implications for the way in which Scots criminal law operates. The framework could have benefits for Scots abroad who are accused of criminal acts and for foreigners in Scotland who might not understand the way in which our system works. That is an example of an area in which early action could be useful.

Thank you. That has teed up the convener's question quite nicely.

Thank you, Margaret.

My question is on the draft proposal on procedural safeguards for suspects and defendants in criminal proceedings. Has the Executive responded to the original consultation?

The Executive has contributed to the UK response to the original consultation. The Executive also sent an official to the public hearing that took place in Brussels earlier this year. The answer, therefore, is yes. Our aim is to ensure that, when the proposal is released, our views are fully reflected in the United Kingdom response.

As far as you know, should the Executive or the Scottish Parliament have any concerns about the contents of that document?

We have flagged up areas in which we think that it is important to ensure that what is proposed provides the guarantees and assistance that people will need if they are accused of crimes in another jurisdiction. Those areas include access to interpretation, a basic understanding of the system and some form of recognition that the system is compatible with the basic rights that people would expect to have in their own jurisdiction—that is to say, compatible with the rights that are guaranteed by the European convention on human rights. The UK does not, however, foresee any need for substantial harmonisation of criminal procedural law. The main aim will be to ensure that the rights that are guaranteed are compatible with the European convention on human rights.

Are all the EU member states signed up to the convention?

Yes. At the moment, our particular area of interest in Europe is ensuring that the new member states—which are signed up to the convention—can implement the EU rules and the convention and can give the guarantees that are expected in other countries. A lot of work has been done, over the past few years, to support the new member states in those areas. When the proposals are released, it will be important to ensure that they can be implemented throughout the EU of 25, as well as throughout the current EU.

The European Parliament has given its support to an attempt by the Hellenic Republic to clarify the application of the double jeopardy principle. How is the Executive minded at this stage? What are its views on that proposal? Does it throw up any issues that the Executive might want to address?

I am not an expert on the details of the proposal, but it is my understanding that the aim of the measure is to provide recognition of the rules against double jeopardy throughout the EU jurisdiction, so that someone who is accused of a crime in one country and is found innocent cannot be subject to pursuit in another jurisdiction. As we already apply that measure in Scotland, we do not foresee any difficulties in its application.

So, that particular harmonisation proposal is not viewed with any dismay.

As far as we are concerned, in Scots law the measure is relatively straightforward. I understand that there is a proposal in the Criminal Justice Bill, which is currently under scrutiny in England and Wales, for a new prosecution to be allowed in certain circumstances, when new evidence is produced. There might, therefore, be difficulties in looking after the interests of the proposals in England and Wales. We do not think that the measure will cause us any problems in the Scottish jurisdiction, given the nature of Scots law, although I gather that we may have to do something with regard to reporting requirements under the decision.

Thank you. We will resist the temptation to investigate further the possibly interesting situation with regard to England and Wales.

From what you know about the proposal, would the double jeopardy principle apply if a person who had lived in Scotland but was an EU national of another member state committed mass fraud throughout Europe? Or is there a grey area? We would want the Scottish authorities to be able to go after someone who had committed a crime in Scotland, even if the Greek authorities were dealing with that person under their law.

The basic principle of mutual legal assistance and co-operation in the criminal justice field is that, when cross-border crimes are committed, the prosecution authorities of the countries will co-operate. They will work together using the mechanisms that are available, such as Eurojust, the body that brings together the prosecutors to ensure that all the prosecution authorities agree on the way forward and that, by comparing the evidence that is available, the prosecution can take place in the country where the most evidence exists. In that context, evidence from abroad that is relevant to crimes that have been committed in the country concerned can be pursued. The basic expectation is that, because of the co-operation measures that are already in place, we will work with the Hellenic prosecuting authorities and others to ensure that any difficulties in that regard are avoided.

Do you know what stage the proposal is at? That information will help us when we discuss which of the measures we want to look at.

The double jeopardy proposal?

Yes.

It is my understanding that the proposal is to be considered at the next Council meeting, but I am not sure that agreement on it is expected then. There are specific difficulties in some areas. Nevertheless, it could be decided by the end of the current presidency. If it would help, I would be happy to get some more details for the committee.

Would you regard this as early or late in the process, or in the middle?

Late.

I am reassured by what you have said so far about the Scottish Executive taking care to ensure that the EU proposals, as they affect Scotland, will strengthen rather than undermine Scottish law. Given the fact that the European Commission is expected to produce a green paper on the harmonisation of criminal law penalties by the end of October, does the Executive plan to make any representation or become involved in the consultation? For example, will the Executive consult other interested bodies? I ask that specifically because I and others share a concern about any move towards establishing a Europe-wide criminal justice system as part of a wider federalist agenda.

As I understand it, the proposal for a common understanding of sanctions is being made to provide a basis on which a sentence that is imposed in one country can be recognised in another country. When I was at the Commission recently, it was explained to me that somebody who is sentenced to two years in one country may expect to serve the full two years, whereas in other countries they might expect to be released after half that period. There are difficulties in the definition of sentences.

The recognition of sentences across borders is important if, for example, prisoners are to be allowed to serve their sentences in their home countries. In such cases, there should be a basic expectation regarding the length of the sentence that is imposed. Another reason behind the proposal is the need to have approximately similar sentences for serious crimes. If we want to ensure that Scotland is not a haven for criminals, we will want to ensure that the sentence for a particular crime, such as serious drug dealing, is comparable with—not necessarily the same as, but comparable with—the sentence in another country. We should have a common understanding of what criminal penalties mean in one country as opposed to another.

Those are the reasons behind the proposal. It has practical benefits, but we and the UK Government have made it clear that we do not support moving beyond the proposal towards a wholesale harmonisation of criminal law. Our aim should be to provide basic minimum standards that will allow the effective enforcement of judgments across the European Union, allow effective co-operation against serious crime, and protect individuals' human rights. However, the basic principles behind our criminal, procedural and substantive law operating in the same way as in England and Wales should not be undermined by unnecessary harmonisation.

The United Kingdom white paper on the intergovernmental conference made some clear points about the extent to which harmonisation should be pursued in criminal and procedural law. On harmonisation, the UK Government and the Executive are clear that the aim should be to provide what is needed but not to go beyond that.

I want to be clear on this. Will you be involved in consultation, and will you be consulting other interested bodies in Scotland?

With measures that affect Scots law, such as this one, we certainly expect to consult and to be involved in consultation. I will have to consider that with colleagues.

I am entirely behind the idea of the harmonisation of criminal law when it comes to dealing with serious international crime. There are very good reasons for harmonisation. However, I get worried when the EU steps into areas in which there is no justification for its involvement. Its reasons are not to do with international crime but to do with harmonising our procedures with other countries' procedures. Does Scotland, or the UK, ever express concerns over the necessity for harmonisation or the speed at which the EU wants to achieve it? The idea seems to be a million miles away from freedom of movement. If we take the view that freedom of movement means that, wherever you move in the European Union, your rights should be the same, we may as well have a federal Europe. Does the UK ever express concerns about how far it is digging into the idea of harmonisation?

As I said in my previous answer, the best and most recent expression of that is in the white paper on the IGC, which was published just a couple of weeks ago. The white paper sets out the UK's views on how far we should go towards achieving mutual recognition and basic standards in criminal, procedural and substantive law. The aim is to provide basic rights across borders but not to harmonise. That is the UK's view and, given the implications that harmonisation may have for our system, the Scottish Executive shares that view.

There will always be debate in Europe about the extent to which we need to harmonise in all areas. That debate is normally healthy, active and interesting. People's views can depend on where they sit. If you are sitting in Aachen—near the borders with the Netherlands and Belgium, and with the Luxembourg and French borders only about 20 miles away—perhaps your interest in cross-border crime is much stronger than it would be if you were further away. It is true that some German and French lawyers are especially keen on harmonisation. That said, the points that the UK Government and the Scottish Executive make are not made on their own. Many other member states see benefits in maintaining a system that is based on national jurisdictions, rather than moving to federal law.

Does the green paper on alternative dispute resolution present any particular implications for Scotland? What is the Scottish Executive's view, if it has a view at the moment, on alternative dispute resolution, particularly the green paper's proposals on it? It is an important area and obviously has implications for Scots law. Do you know when the European Commission is expected to produce proposals on alternative dispute resolution?

I have not been dealing directly with the green paper on alternative dispute resolution, but the civil justice and international division deals with it, so I know something about it. The UK response to the green paper, which reflected the Scottish Executive's contribution and views, stressed strongly that we would prefer not to have a lot of regulation of alternative dispute resolution at EU level. That is partly because alternative dispute resolution is voluntary by nature—it is an attempt to persuade the parties to settle their differences in an amicable, mediated way. There is an element to it of, "You can take a horse to water, but you can't make it drink." It is also partly because many alternative dispute resolution procedures are still in the developmental stage in a number of member states, and we do not want the gradual development and exchange of best practice, and the lessons that we can learn from that, to be interfered with by regulating too hastily.

The latest position, as far as I understand it, is that the presidency produced a discussion paper for the informal justice and home affairs council in Rome, which I think was held on 12 and 13 September. That dealt with delay in civil trials and discussed ADR in that context. There was quite a lot of support for the view that we did not want to go too far down the regulatory route. From that decision, exchanges of best practice and information and the possibility of codes of conduct were talked about. So far, the Commission has made no formal proposal and, as far as I am aware, there are no indications of when it is likely to do that. I think and hope that the Commission appreciates that it needs to think a little bit more about what is involved and what would be the best route to go down.

I hear what you say, but I reiterate the point that the convener made. Alternative dispute resolution sounds like an area in which Europe is getting involved when there is no real reason for it to do so.

Alternative dispute resolution has been around for a long time, but it is new in the sense that it is only now coming to the forefront in many countries, not only in Europe but elsewhere in the world—I am thinking in particular of examples from the United States of America. It seems strange that the EU would immediately want to jump in and legislate on something that, as you have said, is developing in most member states. We are at an extremely early stage of dealing with alternative dispute resolution in Scotland.

Is it your view that the Commission will step back from regulation and not make a proposal, or do you think that it will go ahead? I know that that is a difficult question.

I would not like to guarantee that the Commission will step back. I think that it might go ahead and do something, but what it will do is up in the air. We hope that it will propose something along the lines of using the civil judicial network to exchange information and, perhaps, introducing codes of conduct. However, we cannot say until and unless the Commission proposes something.

What are the latest developments on the draft regulation on parental responsibility? Is the Executive satisfied with the agreement reached?

The Executive and the UK Government have no major policy issues left outstanding on the text as we have it so far. Adoption of the regulation at the October justice and home affairs council will be a bit of a challenge logistically. The presidency is clear that it wants politically to adopt the regulation then.

A number of technical drafting issues are still to be resolved. Various member states have raised a small number of policy issues, which may have disappeared from the picture by October. There will be one more meeting of the Committee of Permanent Representatives before the October council. A meeting of jurist linguists is scheduled to sort out problems with the text. If the matter is dealt with at the October council, there may be some minor tidying up after political adoption. However, the Executive is happy with the broad lines of what has emerged.

I realise that we are dealing with a short time scale and that we are late in the process. What effect will the draft regulation have on family law in Scotland? Are there any concerns of which the committee should be aware?

The regulation will not alter domestic substantive family law in Scotland. It is about regulating which courts should have jurisdiction in a dispute and how a judgment can be recognised and enforced across borders when more than one EU member state is involved. The regulation does not tell member states what law they should apply to the dispute when the case is before their courts. There may be situations in which there is another international instrument in existence that does that. For example, in international parental child abduction cases our courts would normally apply the Hague convention, which operates in that area. The regulation makes no change to internal Scots family law. It is about whether Scottish or other courts in the EU should deal with particular cases, and if they do, how their judgments can be recognised and enforced elsewhere.

In the previous session, the Justice 2 Committee considered this area of European law. I picked up many concerns from the UK delegation about where we were heading, especially in relation to the Hague convention. Have all those issues been resolved? You answered Marlyn Glen's question by saying that the regulation would have no practical effect on Scots law, but does it have other effects—on the way in which the Hague convention is applied, for example?

The major problem with the Hague convention was that at one stage there was an attempt to communitarise the Hague child abduction convention. That would have meant that its rules would have been repeated in the text of the regulation. The UK could see no advantage in that, as it would have made no difference to the rules—they would simply have been transposed into the regulation. The only change that we believed would result was that the Community would acquire external competence in this area. Member states would no longer be able to negotiate on their own account at The Hague about the convention. We did not regard that as a step forward. The UK jurisdictions have a good record of implementing the convention effectively and we felt that it was far more appropriate for member states to continue to be able to negotiate and to exchange best practice at The Hague.

To a large extent, fears on that score have been dispelled. The current text of the regulation does not communitarise the Hague convention. Eventually member states split down the middle on the proposal, so it had to be dropped.

Some provisions, such as the possibility following a return order of reopening substantive proceedings in the state from which the child has been abducted, are bolted on at the edges of the Hague convention. However, the Hague convention itself is no longer communitarised by the regulation. We are reasonably happy with the deal that we have secured.

You said that there might be a change in the courts that will deal with this area of law. What does that mean for Scotland?

There is no vast change. On the matrimonial issues, the regulation provides a wide range of choices of jurisdictions. That reflects the fact that it may be convenient and right for spouses who want to divorce to be able to litigate in a variety of jurisdictions with which they have a connection. The rules are expansive, rather than restrictive.

On issues relating to children, the basic rule is that jurisdiction should be where the child's habitual residence is, which reflects what would happen at the moment. Special rules have been introduced that will be helpful where a child moves residence lawfully from one EU state to another. Those rules allow the state of origin to retain jurisdiction for a short period in order to modify access rights where a parent is being left behind in the original state. There is also a special provision to deal with international child abduction cases. The basic rule with which we are already familiar is that the child's habitual residence determines the jurisdiction.

It worries me that somewhere along the line people whom we represent will be affected, but there seems to be no mechanism for telling the public about changes that might affect them. I am talking not just about this area of law but about all the subjects that the committee has talked about. We have had a fleeting look at the measures, but we have had no say. There is certainly no mechanism whereby we are told what that change—albeit a minor change—will mean. I am seriously concerned about that. Could we see the text or be sent a note to say what the Council is going to adopt in October?

That is at the hub of the discussion that we have had already. The measures seek to provide practical benefits by making it easier to enforce access rights across jurisdictions. At the same time, they must be framed in such a way that they do not impact unnecessarily on the way in which individual countries' courts and legal systems work.

Given the fact that the measure has been under negotiation for some time and will affect many people, it is important that we communicate effectively what it will mean for Scotland. We can provide a note, but providing the text at this stage would be difficult. The text changes daily as the presidency, the Council secretariat and others try to put it into a form where it will meet all the technical, legal and linguistic concerns that are being raised. A note that expresses exactly what the measure is about can certainly be produced at some point before the Council meeting in October, once we know when that will be.

I would be happy to produce that.

I agree that the proposed measure has potential practical benefits for people in Scotland. It is important not to be unnecessarily negative about a proposal just because it emanates from Brussels. The measure provides swifter recognition and, in many cases, enforcement than is currently available in other EU countries. For example, it will benefit a Scottish parent who wants to enforce access rights in another EU state. There are advantages to the proposed change.

When the new measures are up and running, there will be a central authority that will have responsibility for providing administrative co-operation between Scotland and countries throughout the EU on parental responsibility issues. That central authority will be able to give out information, and information might also be available through the EU's civil judicial network, which has a publicly accessible website and is a useful mechanism for finding out about EU law and law in other member states.

I am sure that you appreciate that we are trying to get the issue on the record and we hope to move on from here. As the Parliamentary committee responsible for justice and home affairs, we are not in a position to make any judgment about whether there are practical benefits to the measures. We might trust our officials but, as politicians, we can see the net result but we cannot judge the practical effects and we certainly cannot do an awful lot about it. That is one of the important things to come out of this process.

I believe that the Commission intends to publish a white paper on divorce in January 2004. Can you give us a general sketch of what that will mean for people in Scotland and tell us what input the Executive has had to it? A family law bill is to be introduced in the Scottish Parliament. What is the thinking behind the divorce white paper and what input will the Executive have at the October council? The white paper will obviously have an impact on Scottish family law.

The white paper on divorce is likely to be a paper on applicable law in divorce. That means that it may suggest a proposal for a regulation that would cover which country's law should apply in a multinational divorce. If, for example, a couple of different nationalities were married in France and now live in Germany, which country's law should apply to regulate their divorce if they wish to divorce? As I understand it, the white paper will not affect domestic Scots law or the law of any other EU member state on divorce. That will remain as it is. The white paper is an attempt to regulate the way in which international divorces are handled.

An experts' meeting on the issue took place in Brussels some time ago, which my head of division attended and at which a fair amount of scepticism was expressed about the need for the proposal. We will see what the thinking underlying it is and what the justifications for it are when the white paper comes out. The Executive will want to reserve judgment on the proposal until then. The white paper should not affect internal Scots law, but we will be interested to hear what justifications the Commission comes up with for the proposal.

Thank you. That is reassuring.

So the proposal will have no implications for matrimonial property. You are quite clear about that.

There should be no implications for domestic Scots law. As I understand it, the white paper is likely to concern applicable law in divorce and would apply only when there was a multinational element to a divorce. It would not apply to a purely internal Scottish divorce.

But the proposal would have implications for matrimonial property in a multinational marriage.

There could be implications in that the proposal would regulate which law would apply to the dissolution of the marriage. Whether that would extend to financial property issues as well remains to be seen. We know that there is, on the back burner, the possibility of a separate proposal being produced on matrimonial property during the marriage. The Commission has been undertaking research into that. That would raise questions for us, depending on what is proposed, as we do not really have a matrimonial property regime of the type that many countries in continental Europe have. However, it may be that the white paper that is produced shortly will be restricted to divorce.

You will be monitoring that closely, as it is important.

Yes.

Your briefing also mentions the law applicable to inheritance and wills. Will those issues be included in the white paper, or will the white paper be purely on divorce?

As far as we know, the white paper is likely to be purely on divorce. However, the Commission has been carrying out comparative research into the way in which different member states deal with wills and succession, probably with a view to thinking about future activity in that area.

We would want to be quite clear that our law on succession and matrimonial property would not be affected. That is a major part of Scots law.

Any proposal would be likely to be restricted to situations involving an international element. It would probably be about either applicable law or recognition, enforcement and jurisdiction. It is unlikely that the Commission would attempt to rewrite the succession laws of all the member states. Nonetheless, we will monitor the situation closely.

I am gratified to know that.

That is the end of our list of questions. Do members have any further questions?

I have a very quick one. A question was asked earlier about alternative dispute resolution, and a similar question was asked about another point that was raised. What stage in the process of discussing that area has Europe reached—an early or a late stage? What is the potential for the involvement of the Parliament?

That depends on which proposal is being discussed. The discussions on parental responsibility are almost at a conclusion.

Sorry, I was referring specifically to alternative dispute resolution.

Sorry, I did not hear the first part of your question. We are very much at an early stage in that discussion. There is no formal proposal and there may not be one for some time.

I do not think that there are any other questions. Would you like to say something in conclusion?

The committee raised several points on which it asked for further clarification, especially concerning our plans to consult. I would be happy to get back to you on those. We can also provide a note giving the information that we have about what is to be decided on parental responsibility. If the committee would like further information on anything else that we have discussed, we would be happy to provide it.

Thank you both very much. It has been an excellent and informative session, and I am sure that we will be in touch with you to ask you to help us to identify which of the proposals are at the earliest stages. We will take your advice and get in there at an early point. I thank you also for the papers that you have given us, which are very useful. They allow us to see a bit better how things are done at the European end. The paper on the Italian presidency gives us a chance to see how the Council of the EU picks up on issues that arose under previous presidencies.