European Arrest Warrant

Speech by Baroness Ludford delivered to House of Lords on Mon 19th Nov 2001

My Lords, I shall concentrate on the European arrest warrant rather than on the definition of "terrorism". However, I share the fears expressed about the suppression of legitimate protest. The European Parliament is doing its bit to try to improve the definition.

When the first European Union summit on justice and home affairs took place in Tampere two years ago, the heads of government expounded on what an area of freedom, security and justice, as proclaimed in the Amsterdam Treaty, would consist of. Many of us in the European Parliament then expressed concern that the member states would cherry-pick the security agenda and not equally emphasise the freedom and justice aspects. I believe that our citizens could appreciate the need to cut the bureaucracy and delays in classical extradition procedures. I recall a case a year or so ago of a British student murdered by being thrown off a train in France. The way in which the problems of extradition were batted between France and Portugal illustrated some of the problems.

Our citizens could appreciate that need to speed up the process but would not appreciate cutting corners as regards the protection of fundamental citizens rights. There is in principle a strong justification for a European arrest warrant to stop the delays--what the EU Justice and Home Affairs Minister, Antonio Vitorino, has called "the tyranny of technocracy"--but we need to have parallel measures to protect legal rights.

The elimination of the role of executive authorities for most aspects of the surrender procedure and the streamlining of those procedures would be a step forward in stopping criminals being able to play off one jurisdiction against another and escape scott-free. If governments and parliaments do not pool sovereignty in this area, I fear that the terrorists and criminals will be sovereign.

The problem with the proposal of European arrest warrant is that the ministries of the interior are running the show, not ministries of justice. The development of such an internal market for policing and prosecution must respect two fundamental parameters if it is to be acceptable. It must ensure basic civil rights and it must be agreed democratically. I would feel more reassured if there were recognition by our own Government of a twin-track approach that mutual recognition must be accompanied by a programme of ensuring common minimum judicial standards and safeguards. But the answer of the Parliamentary Under-Secretary of State at the Home Office, Mr Ainsworth, to a suggestion by my noble friend Lord Lester of Herne Hill in the course of his inquiry was less than encouraging.

My noble friend Lord Lester suggested that proper standards of protection for basic rights and freedoms should be written into the decision itself so that they could be monitored by the European Court of Justice and national courts. In response, the Minister made it clear that he saw the mutual recognition of prosecution efforts and efforts to have similar judicial and defence standards throughout the EU as alternative proposals rather than as complementary and parallel moves. He completely misunderstood the point that my noble friend was making. Indeed, he reproached my noble friend for wanting to maintain the status quo of lengthy bureaucratic delays in extradition. I venture to guess that that was not my noble friend's purpose.

There needs to be a simultaneous programme of legal rights simultaneously with European warrants and other cross-border criminal co-operation measures to ensure that the rights guaranteed under the European Convention on Human Rights are respected in practice. I am very much indebted to the organisation, Fair Trials Abroad, which is an admirable organisation run on modest resources, I regret to say, but which does excellent work. It highlighted some of the issues in evidence to the committee. The organisation carried out some research into legal aid and the availability of competent legal advice and the representation on criminal matters for non-Greek citizens arrested in Greece. It shows that such availability for people with little or no financial means was uncertain. The main cause was that public funds for payment for lawyers were non-existent or derisory. There is evidence that the same is true in Italy, Portugal and Spain. Fair Trials Abroad said that competent lawyers would expect reasonable payments by the states involved. On the question of real access to justice through translation and interpretation facilities, a survey on provision was carried out on the criminal justice system of five EU member states. The findings show an unacceptable gap between existing legislation and practice. There was a lack of recognition by justice systems of the fundamental right to understand and to be understood and an absence of recognised training programmes or clear professional standards of competence. Above all, there was a lack of adequate remuneration. Those are practical problems and although the proposal mentions access to legal aid and interpretation, if there is no substance given to it by real effort and common agreement among member states, those rights will be regarded only in their breach.

Furthermore, as has been mentioned, there needs to be a presumption of bail, which is absent in the proposal. Fair Trials Abroad makes an interesting suggestion for a body that is similar to Eurojust, which facilitates interstate prosecution. One could have a body called Eurorights to facilitate interstate protection of citizens and monitor the workings of criminal jurisdictions in the European legal area. That is an interesting suggestion.

Reference was made to a monitoring system set up by the Council of Europe in 1998 to examine the national justice systems of all EU member states. A shortlist of problems included political interference in the administration of justice, corruption, shortage of resources, delays and a prosecution that was too close to the judiciary. One is in a slightly difficult position in mentioning all those problems. It is not to sound superior or to think that everything is wonderful at home and it is not to sound chauvinistic. But there is variation in legal and judicial standards throughout the EU.

The situation when enlargement takes place to include eastern and central Europe will be even more worrying. One need look only at the report produced last week by the European Commission on progress on enlargement. Some of the problems reported include low prison standards and corruption in the justice system. There is much support throughout the EU for harmonisation in external border controls, so I fail to see why we cannot aim for an approximation of defence rights on a similar principle.

Another step that could be taken to entrench fundamental rights in this context would be to incorporate the EU Charter of Fundamental Rights into EU law, which would mean European Court of Justice competence.

I referred earlier to the problem of the rights of people who are arrested abroad and I mentioned Greece. I wish to raise the case of a dozen British and a couple of Dutch plane-spotters who have been arrested and imprisoned in Greece on charges of espionage. Some of these people are my constituents as I am a Member of the European Parliament. I understand that there is to be a magistrates' hearing tomorrow. I appeal to the Greek authorities to grant bail to those defendants. It appears that, although they have been naive, they have not been spying; they just have a passion for their hobby of plane-spotting. There are disturbing reports of very poor prison conditions. I have heard their Greek lawyer on the radio and have no reason to doubt his competence or that of the magistrate, but it makes the concept of a European arrest warrant more difficult to sell if EU citizens in another member state appear to be treated unfairly.

EU justice and home affairs measures are agreed under the Third Pillar according to the EU treaty, which essentially means intergovernmental co-operation. The European Parliament is merely consulted. We have the impression that usually we are ignored, but we work assiduously to deliver our opinions in order to substantiate our claim to joint legislative authority--co-decision with the council--as soon as possible, but that is not yet the case. Therefore, there is a democratic deficit in Brussels. But why do the Government propose to make it worse with the democratic deficit in Westminster? The proposed enabling power to implement by statutory instrument EU agreements in the field of justice and home affairs means that these measures would escape democratic accountability anywhere.

The example of other precedents is misleading. Areas such as the environment or the internal market are examined and scrutinised properly in the European Parliament in Brussels because there is co-decision. The justification put forward for secondary legislation to implement Third Pillar measures in a timescale which meets the current requirements will not wash. Once in force this emergency provision may well become permanent and be used to enact other measures agreed under the Third Pillar. Even for anti-terrorist measures it is inappropriate.

I conclude that if we are to have a system of European arrest warrants there must be a system of guarantees of due process to parallel the Euro-warrant scheme so that individual rights are protected. I concur with many of the observations raised earlier in this debate.