From: THE LORD GRENFELL Chairman of the Select Committee on the European Union
COMMITTEE OFFICE HOUSE OF LORDS LONDON SW1A 0PW
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16 December 2005
Docs DROIPEN 34 & 54 and 10880/05: Proposal for a Council Framework Decision on Certain Procedural Rights during Criminal Proceedings throughout the European Union Thank you for your letter of 24 November 2005 which was considered by Sub-Committee E (Law and Institutions) under its written scrutiny procedure. The purpose of this proposal is to establish “minimum standards so as to clarify and further articulate the scope and application of the rights protected by Article 6” of the ECHR. We accept that in light of the diversity of practice across the EU, the end proposal will often be a compromise; however, we consider that it should nonetheless add value to existing legal rules and increase clarity and mutual trust in the standards of justice in other Member States. Harmonisation at the level of the lowest common denominator brings little, or even nothing, in the way of visible benefits to the citizen. We are concerned that there are areas where this Framework Decision could have made a significant difference to existing levels of protection – the recording provisions, a comprehensive letter of rights and the monitoring provisions – but they are falling victim to the negotiation process. Legal Base and Subsidiarity We note that legal base was on the agenda for the Justice and Home Affairs meeting on 1-2 December 2005. We would welcome a summary of the Council’s discussions and any conclusions reached. Definitions (Article 1) Although the UK has not accepted the jurisdiction of the ECJ to rule on the interpretation of Framework Decisions, you correctly point out that the UK will nonetheless be required to comply with rulings given by that court. In light of Pupino, UK courts are obliged to interpret national legislation in light of the Framework Decision itself. This will in practice mean that UK courts may be required to rule on points of interpretation of Framework Decisions and, as you say, to comply with ECJ judgments on interpretation following references from the courts of other Member States. But our courts will not be permitted to seek guidance from the ECJ on such matters. Do the Government intend to revisit its position in relation to Article 35 TEU? What consideration have you given to this matter following Pupino? Legal advice (Articles 2-5) The Committee welcomes the changes to Article 2 which aim to clarify the circumstances in which the right to legal advice may be limited. However, we are concerned that these derogations
remain too broad. The first derogation, “to protect the effectiveness of investigations”, could be interpreted very widely. It would seem capable of being used in almost all cases. Is that the intention? If not, what efforts should be made to ensure that exceptions are precisely defined and restrictively applied? We do not agree that it is necessary to delete “as soon as possible”, given that delay is exceptionally permitted by Article 2(2). We note that it is generally considered that the right to legal advice should not apply to police questioning. What is the Government’s view? We believe that this right should apply from the earliest possible stage and would be grateful for an explanation of why those undergoing police questioning should not have a right to legal advice. Translation (Articles 6-8) We are disappointed that provisions on accreditation are not deemed necessary by the majority of Member States. We continue to believe that there should be proper supervision and accreditation of interpreters and translators and would welcome your assurances that the Government will put the appropriate measures in place in the UK when implementing this Framework Decision. In Article 7(1), the addition of a sentence to the effect that a translated summary of documents may suffice “where appropriate” causes us some concern. Do the Government consider this to be in compliance with their obligations under Article 6 of the ECHR? Recording (Article 9) The Committee reiterates its view that the recording provisions are a most important element of this Framework Decision. Here is a point where value could be added and the citizen’s confidence in the investigative procedures of other Member States increased. Is it really the case that the Government can do nothing to ensure their inclusion? We believe that this should be a sticking point for the UK. Specific attention (Article 10) We do not agree that Article 10, specific attention rights, should be limited to children, despite the inclusion of a revised Article 10 bis. As the original draft of this proposal recognised, those who are mentally impaired have similar needs to minors as regards notification of a parent or guardian and special measures during the proceedings to enable them to participate effectively. Article 10 bis is no substitute. We would be grateful of your assurance that the scope and content of Article 10 will be reconsidered to do justice to the disabled. We also do not consider an exception, particularly one in the same terms as that contained in Article 2, to be appropriate in respect of minors. Do you agree that any exceptions to the rights of minors should be limited? If so, what changes would you propose? Contact during deprivation of liberty (Articles 12-13) We note your view that these provisions do not breach the ECHR. However, it appears that some Member States remain concerned about the compatibility of the provisions with international law. What are the outstanding concerns here? Article 36 of the Vienna Convention on Consular
Relations of 1963 provides that where a non-national is detained, the authorities of the detaining state must inform the consular authorities of the non-national’s state “without delay”. Are derogations from this provision permitted? Letter of rights (Article 14) and Monitoring and Evaluation (Articles 15-16) As we have previously made clear, we consider these provisions to be extremely important to ensure that rights granted are effective. The substantive rights contained in this proposal cannot in themselves increase citizens’ trust in the criminal justice systems of other Member States. For this to be achieved, citizens must be aware of what their rights are through an easily understood, uniform Letter of Rights, and they must be confident that the necessary independent monitoring and supervision is in place. What is the current thinking of the Working Group? We trust that the UK will pursue this point vigorously in that forum. The Committee has decided to retain this proposal under scrutiny. I am copying this letter to Jimmy Hood MP, Chairman of the Commons European Scrutiny Committee; and to Simon Patrick, Clerk to the Commons Committee; Michael Carpenter, Legal Adviser to the Commons Committee; Les Saunders (Cabinet Office); and Stuart Young, Departmental Scrutiny Co-ordinator.
Fiona Mactaggart MP Parliamentary Under Secretary of State Home Office 2 Marsham Street London SW1P 4DF