Speech to the Institute of International and European Affairs
Speech by Attorney General Dominic Grieve QC MP
“It is a great pleasure for me to have the opportunity of addressing you here in Dublin today. I feel very privileged to be invited to speak at the Institute of International and European Affairs - an organisation that has done a great deal to further research and discussion on important European and International developments and the implications these have for Ireland and Europe.
“I cannot start my talk today without reference to Garret Fitzgerald whose recent death deprives us of a great statesman and thinker and one of the prime architects of the beneficent transformation in the relations between our countries from which we are all daily benefiting.
“It was indeed he who first made me aware of the Institute’s existence, when he presented me over 10 years ago with a copy of ‘Blair’s Britain, England’s Europe’, edited by Paul Gillespie, when I met him in the context of my interest in British-Irish relations which then led to my enjoying my years of membership of the British-Irish Parliamentary Body.
“I think he gave me the book to challenge what he saw from our conversation as my regrettable Conservative euroscepticism and it was certainly a challenging if riveting read with its Irish dissection of the attitudes of the British body politic. But it made me realise just how much we might profitably learn from our mutual experience and I rejoice that I had the opportunity of knowing him.
“Fortunately we find ourselves today nowhere near the more extreme developments of either end of the spectrum that the book considered. But as I realise in my office of Attorney General, we still do find ourselves in a very different Europe to the one our 2 countries joined in 1973 or indeed which prevailed in 2000. Nowhere is this more evident than in the field of Home Affairs and Justice.
“It is not just businesses, and our citizens who have benefited from freedom of movement and trade but also criminals who can now operate across borders with ease. They have adapted to this new Europe, and so have we through having to address improving judicial cooperation among Member States in an attempt to combat cross border crime.
“EU criminal justice measures have moved on a great deal since work began over a decade ago to keep up with the constantly evolving nature of crime at national and international level. Crime today is increasingly complex, likely to transcend our national borders and therefore our approach to combating crime must be more flexible and involve cooperation between many agencies not just at national level but with our international partners.
“A good example of how complex crime has become is fraud. Fraud is a real cross-border problem and, if it is to be tackled effectively and its perpetrators are to be brought to justice, it requires effective cross-border action. Globalisation of markets, internet trading and the free circulation of goods, services, persons and capital all mean that the United Kingdom cannot counter fraud in isolation. Key suspects and evidence - and key victims - may be anywhere in the world. The boundaries of national jurisdictions offer shields, not barriers, to the determined fraudster. This is an area where good co-operation at EU level can add real value.
“Historically, both of our countries struggle at times with EU membership - both politicians and electors have challenged policies and decisions where they felt their national sovereignty has been threatened by Brussels and these challenges will continue. We have tried, however to work around these concerns by securing special positions for our countries under the Treaties to protect our interests in an attempt to balance our national needs and the protection of our sovereign discretion with the need to support and develop work in this important area of policy across the EU.”
Justice and home affairs reviewed
“That is a difficult balance to strike and as one can see by the perusal of Parliamentary debates in Hansard or the pages of our press there are plenty who believe we are getting it wrong and some who believe we should not participate at all. But I believe that any objective analysis demonstrates that work in the JHA field so far has done a great deal to arm us in the fight against cross border crime. We have some good if never perfect stories to tell. Within the last decade, a large number of EU criminal justice measures have been introduced and many of these measures have had a positive impact on our ability to prosecute cross border crime and protect our citizens.
“The most notable of the measures based on the mutual recognition principle was the introduction of the European Arrest Warrant Scheme in 2004. Although this is often viewed as a revolutionary new approach to extradition, it was not such an alien concept to the UK and Ireland who operated their own scheme for extradition based on the recognition of each other’s arrest warrants. This scheme was incorporated in UK law under the Backing of Warrants (Republic of Ireland) Act 1965.
“However, that process was not without its difficulties, which have been entirely ironed out under the EAW scheme that is now in force and has played a key role in enabling us to secure the swift return of suspects to the UK for trial. Between January 2004 and April 2010 the EAW scheme has allowed the UK to extradite over 1900 alleged or convicted offenders to other Member States. During the same period, it has resulted in 447 suspected offenders being surrendered to the UK to face justice. Most significantly it allowed for the swift return of 1 of the 21 July bombers, Hussein Osman, from Italy to the UK in 2005. In the past this may have taken quite some time.
“We have also seen the establishment and development of the European Judicial Network (EJN) and Eurojust, which are both organisations that can effectively support practitioners involved in cross border cases. The role of Eurojust has been strengthened even more this month with the coming into force of the Council Decision agreed on 16 December 2008. This decision is designed to strengthen and improve Eurojust and introduces a number of changes, which include: the requirement for national desks to provide 24-hour cover to respond to requests for urgent assistance, setting out the tasks of Eurojust acting as a college (eg when to intervene in conflicts of jurisdiction), establishes a national co-ordination system in each member state and sets out new rules on information that member states should provide to Eurojust in relation to complex cross-border cases involving more than 2 member states.
“Another important tool for criminal justice practitioners, introduced by the EU are Joint Investigation Teams (JITs), set up on the basis of an agreement between two or more member states and/or parties such as Europol, for a specific purpose and limited duration. This type of co-operation can be more beneficial than working through traditional mutual legal assistance channels as it allows prosecutors and law enforcement officers to work directly with their opposite numbers in the participating member state or states with support from Eurojust and Europol.
“The UK has been involved in a number of JITs, including “Operation Golf”, which was particularly successful. The team was set up in September 2008 and was the first ever JIT to receive full EU funding amounting to 1 million Euros. Operation Golf’s activities centre on tackling organised crime groups who traffic predominantly Roma children to the UK to work as beggars and exploit the UK benefits system for criminal gain. This JIT achieved the first UK conviction of Trafficking of Human Beings of a child, and rescued 5 further victims of child exploitation, as well as uncovering evidence of systematic and widespread benefit fraud. This is an excellent example of what we can achieve when we work together with European partners using the measures that are available to us.”
The UK approach to JHA
“So what is the UK’s approach to JHA? In policy terms, this government’s approach is one of full engagement in the EU, whilst being careful to safeguard our national sovereignty. To quote from the Coalition Agreement:
The Government believes that Britain should play a leading role in an enlarged European Union, but that no further powers should be transferred to Brussels without a referendum. This approach strikes the right balance between constructive engagement with the EU to deal with the issues that affect us all, and protecting our national sovereignty.
“The UK recognizes that Title V of the Treaty on the Functioning of the European Union, which sets out EU cooperation in Justice and Home Affairs, can help to enhance our security and provide opportunities for practical cooperation and capacity-building work on immigration, organised crime and judicial cooperation. With that in mind, the Coalition Government has undertaken that all proposals will be assessed on a case-by-case basis. We will put the national interest and the benefits to our citizens and businesses at the heart of our decision making. The government has committed to make a written statement to Parliament on each opt-in decision to ensure that Parliament is fully informed of our decision and of the reasons why it believes its decision is in the national interest.
“But as an issue of principle, the Government will not opt in to proposals concerning a European Public Prosecutor and has no intention of joining Schengen measures that involve the abolition of border controls.
“We believe that our approach to JHA policy is pragmatic, measured and proportionate, having proper regard to Britain’s wider interests. We want to ensure that we participate in measures that are in the best interest of our businesses and citizens and that our decisions are informed by the views of Parliament and on rigorous assessments of each measure against a set of criteria. These criteria include:
- potential impact on the integrity of the UK’s justice systems
- national security
- effects on civil liberties and rights
- the potential regulatory impact of the measure and wider impacts
Protecting national interests post-Lisbon: the EU Bill
“Having spoken in general about the UK approach to JHA I would next like to talk to you about the steps the UK Coalition Government is taking to provide more accountability for the decisions it takes in relation to how the EU develops, and to ensure that there is no further transfer of sovereignty or powers over the course of the next Parliament. The Government’s Bill on the EU, currently going through the House of Lords will require that:
a) Any proposed future EU Treaty, agreed to by all EU member states’ governments, including the UK government, which seeks to transfer areas of power or competence from the United Kingdom to the European Union would be subject to a referendum of the British people; and,
b) The use of ratchet clauses or passerelles (which are provisions in the existing EU Treaties allowing the powers of the EU to be modified or expanded without the need for a formal treaty change), would require an Act of Parliament before the government could agree to its use
“It additionally includes a clause underlining parliamentary sovereignty; making clear that EU legislation has effect in the UK only because, and for such time as, Parliament wills.
“For measures in the JHA area, the Bill introduces specific provisions that a referendum would be required to remove the requirement for unanimity to use any of the following powers:
a) to approve UK participation in any proposal to create a European Public Prosecutor
b) to approve UK participation thereafter in any subsequent proposal to expand the powers of a European Public Prosecutor
c) for any decision under Article 4 of the Schengen Protocol (Protocol 19) that removes border control of the United Kingdom and
d) for any amendment to the Treaty that would move JHA legal bases from unanimity to QMV
e) for any treaty change that would remove or amend the emergency brake mechanisms contained in Articles 82(3) and 83(3) of the TFEU
“The ‘emergency brake’ available to all member states is an important protection mechanism available to us. The Bill will make it clear that any attempt to change the Treaties so as to remove these emergency brakes from this or future treaties would be subject to a UK referendum.
“Both for the emergency brakes and for the measures listed other Member States could of course go ahead without the UK. However the referendum stops a UK government joining in such a change unless the UK public have confirmed that they support it.
“The Bill additionally provides that an Act of Parliament must approve any UK decision to use the JHA ratchet clauses contained in:
a) Article 81(3) TFEU to permit the application of ordinary legislative procedure in place of special legislative procedure in family law
b) Article 82(2)(d) TFEU to add to the list of criminal procedures on which EU directives may be made
c) Article 83(1) TFEU to add to the list of serious crimes with a cross-border dimension on which directives may be made
“These ratchet clauses would apply a lesser voting requirement to measures in family law areas, or, for areas relating to criminal law, enable an expansion of the issues over which the EU has competence, for example as crimes develop that simply did not exist until relatively recently, like cybercrime. For instance, there are indications that the Commission will wish to propose adding female genital mutilation and/or violence against women to the list of serious crimes with a cross-border dimension on which the EU can act in Art. 83(1)TFEU. If that were the case, and the government indicated that it would wish to support this proposal, an Act of Parliament would be required to approve the UK’s adoption of any proposal to add these offences to the list.
“The government made further comments in the Written Ministerial Statement of 20 January this year, which set out a package of measures to strengthen Parliamentary scrutiny of EU business, reinforcing the government’s commitment to honour the Ashton commitments providing for enhanced scrutiny over European Justice and Home Affairs matters, but highlighting that the government would undertake further extensions to those parliamentary scrutiny arrangements. Thus:
a) The government now commits to a Written Ministerial Statement on each opt-in decision, or
b) where appropriate and necessary, Ministers will make this Statement on an opt-in decision orally to parliament
c) The Written Ministerial Statement outlined that the Government actively urges the House of Commons and Lords Scrutiny Committees to take full advantage of their existing rights under the Ashton Commitments, including the right to call a debate on an amendable motion on any opt-in decision
The Committees have thus far exercised this right only twice; the Commons called a debate on the Cross border enforcement road safety offences directive and the Lords called a debate on the Minimum Standards on procedures in Member States for granting and withdrawing refugee status and on the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.
d) The Government also expressed its willingness to set aside Government time for a debate in both Houses on a motion on the Government’s recommended approach to the opt-in on issues where there is strong Parliamentary interest in the Government’s decision whether or not to opt in to such a measure. The Government has already committed itself to holding a debate on the 2014 opt-out decision
“What the EU Bill does not cover is the ordinary use of the UK’s opt-in protocol. This falls outside the scope of the bill, because it was agreed under the Lisbon treaty, and it is considered that it would be contrary to the UK’s interests to lose flexibility here.”
Stockholm: the future of JHA
“Whilst it is very important to us to have the safeguards I’ve mentioned to you in place we also consider that it is important to be as fully engaged in JHA work as possible, particularly in the context of Stockholm. The UK has worked hard to feed into the new JHA work programme that replaced the Hague Programme earlier this year. The Stockholm Programme sets out what it considers should be the priorities in all JHA areas for the next 5 years.
“More specifically, on criminal justice, the Programme, as you will be aware, envisages the extension of the principle of mutual recognition for all stages of criminal procedure, including measures to protect victims and witnesses, and disqualifications arising from convictions. The training of prosecutors and judges is seen as an essential element in increasing mutual confidence and the EU envisages more work in this area. Evaluation is also highlighted as a priority, to improve the implementation of legislation. Five key areas of organised crime will be targeted, human trafficking, sexual exploitation of children, cyber crime, financial crime and drug trafficking.
“Judicial co-operation will also be strengthened, with priority given to work to improve the exchange of criminal records and enhanced mechanisms to exchange evidence, accompanied by work on strengthening the rights of defendants in criminal proceedings. This is an important area of work that the UK supports subject to detailed scrutiny of the proposals.
“We have already seen some important measures issued at EU level since the introduction of Stockholm, which include the European Investigation Order (EIO), the Proposal for an EU Directive on the Right to Information in Criminal Proceedings, EU Directive on Combating the Sexual Exploitation of Children and Child Pornography, the European Protection Order and the Cybercrime Directive. The UK has opted-in to all these proposals. In addition the UK is awaiting parliamentary approval on a recommendation to participate in the Human Trafficking Directive post-adoption and we are currently considering whether to opt-in to the recently published Victims’ Directive.
“Although all these proposals for EU criminal justice measures are important, the EIO is likely to have the most impact on criminal justice practitioners when it is eventually introduced across Europe. It will streamline the process of Mutual Legal Assistance (MLA) between EU countries. UK practitioners frequently describe the current system as fragmented, confusing and subject to delays. The EIO seeks to simplify the Mutual Legal Assistance system amongst EU Member States through introducing a standardised request form, by providing formal deadlines for the recognition and execution of requests and by replacing the majority of MLA instruments with a single instrument.
“The UK government carried out a consultation with Police and other UK law enforcement agencies, prosecutors, private practitioners, academics, the Law Society of England and Wales, Criminal Law Solicitors’ Association, Fair Trials International, Justice and many others. The majority view was that the UK should opt in. While there were some anxieties expressed that it could lead to the forced harmonisation of criminal procedure, we have decided to do so.”
Meeting the challenges of operating post-Lisbon
“As you are all aware, all these new proposals introduced under Stockholm are subject to the post-Lisbon procedures. Protocol 21 on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice has secured important safeguards for our 2 countries, and introduced a process that allows us to decide whether or not to opt-in to any proposals or initiatives presented to the Council pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union. Although this is a new process for criminal justice measures (and civil matters) it is not a new concept for us as we have been operating a similar process for asylum and immigration matters for many years.
“It is important to have secured an opt-in process for JHA measures, however, it does pose additional challenges for practitioners and policy makers. As you know, under the Protocol, our countries are allowed 3 months in which to consider whether we wish to participate in a new measure. This is a relatively short period of time to analyse the impact of the measure at national level and to allow for Parliamentary scrutiny of the proposal to take place.
“The latter is particularly challenging if the proposal is issued during a period of Parliamentary Recess. I have already spoken about the requirements introduced by the Written Ministerial Statements of 20 January 2011, which means that Parliamentary scrutiny of JHA measures post-Lisbon is much more thorough than it was for previous Third Pillar instruments subject to unanimity. I understand that Ireland has also experienced difficulties in scrutinizing JHA measures. Detailed scrutiny of these measures will be a continuing challenge for our policy makers and parliaments.
“Although, our ability to choose whether we participate in JHA measures or not sets us apart from other Member States we must not forget the most notable difference that distinguishes us from the majority of our European partners and which dates back much further than any special arrangements introduced by the EU Treaties. That difference is our shared common law legal tradition.
“Again, this isn’t a new challenge and we have frequently faced these hurdles together during the negotiation of measures with countries which do not share our common law tradition and misunderstand concerns we have because our criminal justice process is different. The most notable areas that are misunderstood are the investigative processes in common law jurisdictions and the very different role that victims and witnesses play during our proceedings. If any such points arose, pre-Lisbon we could be reassured that unanimity would offer us the protection if our civil law partners were unable to understand any concerns we had.
“Now, post-Lisbon, we may frequently find ourselves in situations where any concerns resulting from our different legal systems are shared only by a minority of Member States. If the measure is of key importance to European judicial cooperation we are then faced with the dilemma of whether to opt in to a measure containing provisions we may not be confident we can to amend under QMV or opting out of an area of work that could potentially benefit us in tackling cross border crime.
“This is an area where we need to work together to give our civil law partners a greater understanding of our different legal systems and the very specific issues we face as a result of our common law jurisdictions. However, I am encouraged by recent proposals issued under the Stockholm Programme, which seek to respect and accommodate the different legal traditions operating among all European partners.”
Conclusion
“I hope that in this talk I have been able to set out for you something of the principles with which the UK will seek to approach the undoubted opportunities but also the challenges of the development of the EU’s Home Affairs and Justice policies. We are determined not to take a blinkered approach and very conscious that we should look to our European and International partners, who meet common standards of human rights and justice, for cooperation in combating crime.
“This of necessity requires pragmatism and a willingness to share powers to achieve sensible goals. But we will ensure that we only participate in measures that are in the interests of our businesses and citizens and our decisions will be informed by the views of Parliament and on rigorous assessments of each measure against a set of established criteria. We believe that this balance can allow us to be fully engaged in an important area of work at European level, while preserving our national sovereignty and the civil liberties of our citizens and upholding the rule of law.
“In striving to achieve this I know that we will wish to look to you here in Ireland, where your national legal traditions are so close to our own and the challenges so similar, yet perspectives may at times be quite different, for a dialogue and mutual critique of how best we can approach these matters.
“Our ability to do this for each other appears to me to be one of the best of the many good legacies of the efforts of Garret Fitzgerald and many others in both our countries in transforming our bilateral relations in the last quarter century. We must strive to ensure that we build on their good works.
I would like to thank you, again, for the invitation to speak here today.