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European Union Committee Justice, Instituitions and Consumer Protection Sub-Committee

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European Union Committee Justice, Instituitions and Consumer Protection Sub-Committee EUROPEAN UNION COMMITTEE JUSTICE, INSTITUITIONS AND CONSUMER PROTECTION SUB-COMMITTEE EUROPEAN UNION COMMITTEE HOME AFFAIRS, HEALTH AND EDUCATION SUB- COMMITTEE UK’s 2014 Opt-Out Decision (‘Protocol 36’) Written Evidence Contents David Anderson QC, Independent Reviewer of Terrorism Legislation –Written evidence ..... 1 Association of Chief Police Officers –Written evidence ................................................................... 5 Association of Chief Police Officers in Scotland–Written evidence ............................................ 32 Bar Council –Written evidence ............................................................................................................ 36 Court of Justice of the European Union –Written evidence ......................................................... 50 Crown Office and Procurator Fiscal Service –Written evidence ................................................. 54 Europol – Written evidence .................................................................................................................. 59 Faculty of Advocates – Written evidence .......................................................................................... 69 Fair Trials International –Written evidence ....................................................................................... 74 Martin Howe QC – Written evidence ................................................................................................ 90 William Hughes, former Director General, SOCA –Written evidence ...................................... 94 JUSTICE – Written evidence ................................................................................................................. 98 Justice Across Borders –Written evidence ...................................................................................... 108 Mike Kennedy, former President of Eurojust and former Chief Operating Officer at the Crown Prosecution Service Officer –Written evidence ............................................................... 157 Lynda Lacy –Written evidence ............................................................................................................ 164 Law Society of England and Wales – Written evidence ................................................................ 170 Law Society of Scotland –Written evidence .................................................................................... 178 Liberal Democrat UK MEP Group –Written evidence ................................................................. 185 Northern Ireland Executive –Written evidence ............................................................................ 192 Dr Maria O’Neill, University of Abertay Dundee–Written evidence ........................................ 193 Jean-Claude Piris, former Legal Counsel of the European Council and of the EU Council – Written evidence ................................................................................................................................... 200 The Police Foundation –Written evidence ...................................................................................... 204 Police Service of Northern Ireland –Written evidence ................................................................ 211 Scottish Government –Written evidence ........................................................................................ 239 UK Government – Written evidence ............................................................................................... 240 United Kingdom Independence Party –Written evidence ............................................................ 256 David Anderson QC, Independent Reviewer of Terrorism Legislation –Written evidence David Anderson QC, Independent Reviewer of Terrorism Legislation –Written evidence My interest in the opt-out decision 1. The principal statutory functions of the Independent Reviewer are to review the operation of UK anti-terrorism legislation and to produce three annual reports which are submitted to the Home Secretary (or in one case the Treasury) and laid before Parliament. I took over the role from Lord Carlile in 2011, and combine it with practice as a Q.C. from London Chambers. For some 25 years I have specialised in cases involving European Law. I have also taught EU law at King’s College London, where I remain a Visiting Professor, and sit as a Recorder of the Crown Court. 2. I cannot improve on the account of the legal background to the opt-out decision that is given by Hinarejos, Spencer and Peers in the CELS Working Paper of September 2012, with which the Committee will be familiar. Nor do I enter into the political debate as to the desirability or otherwise of repatriating powers from the EU. My concerns relating to this topic are with the legal and operational aspects of the fight against terrorism. I expect to comment in my Terrorism Acts report of summer 2013 on whether there is a risk that the exercise of the opt-out could impede the effectiveness of that fight. 3. Any such comments will be informed by the investigation and conclusions of this Committee. I do not seek to replicate or pre-empt in any way the Committee’s work. In order to inform myself more fully as to the issues, I have however discussed the possible implications of the opt-out for counter-terrorism with police, agencies and OSCT. I have also had helpful discussions in Brussels with the EU Counter-Terrorism Co-ordinator (Gilles de Kerkhove), a member of the cabinet of Commissioner Malmström, senior officials of the Commission and Council and MEPs from each of the major UK parties, and in The Hague with representatives of Eurojust and Europol. 4. Those discussions were confidential, and are unlikely in any event to have ranged beyond the scope of evidence that this Committee will itself receive at first hand from similar sources. Nonetheless, and in case it is of value to the Committee, I set out for what it may be worth some of the initial impressions that I have formed. The UK’s leading role in EU counter-terrorism law and practice 5. I have been struck by the extent to which – contrary to the tendency of the UK media to depict the UK as a marginalised influence in European affairs – the UK is seen within the EU as a key player in the field of police and criminal justice, specifically (though not exclusively) where anti-terrorism is concerned. 6. For example: (a) The mandatory requirements concerning jurisdiction and terrorist offences in 2002/475/JHA, as amended by 2008/919/JHA, have the effect of requiring all 1 David Anderson QC, Independent Reviewer of Terrorism Legislation –Written evidence Member States to introduce laws equivalent to some of those established in the UK’s Terrorism Acts 2000 and 2006 (albeit that UK influence was in part diffused via the Council of Europe’s 2005 Convention on the Prevention of Terrorism). (b) The EU Action Plan on combating terrorism, first drafted during the UK presidency in the second half of 2005, is closely modelled on the UK’s own CONTEST strategy. An indicator of the high degree of UK influence may be seen from the fact that the four elements of the CONTEST strategy, which governs the entirety of UK counter-terrorism policy (Pursue, Prevent, Protect, Prepare) were translated into four equivalent and only slightly less alliterative EU elements: Pursue, Prevent, Protect and Respond. (c) The UK was described to me by the Commission as “very active” in developing EU policies for counter-radicalisation both internally and in third countries; for aviation security; and for the risk and threat analysis. I was told that if the UK supports a Commission initiative, that initiative is immediately given credibility; and that other large Member States have been won over in the EU setting to the UK approach, for example as regards the assessment of risk. (d) It was explained to me at the Council that the UK has been exceptionally useful in managing the relationship between the USA and the EU. UK influence has been decisive in the negotiation of a number of specific measures, including the EU-US Agreements on Passenger Name Records and Terrorist Finance Tracking Provisions (TFTP). It has also enabled the EU more effectively to defend its citizens’ interests on domestic US issues such as the manner in which the National Defense Authorization Act is interpreted by the US Administration. (e) Europol, up to 10% of whose cases concern counter-terrorism, has developed under UK leadership as an effective information hub. 7. This degree of influence of course did not happen by chance, but because of a desire on the part of the UK to encourage other Member States to take the threat of terrorism as seriously as it is taken here. While international terrorism retains a high public profile in countries affected by it in the recent past (e.g. UK, Spain, the Netherlands, Denmark), it is almost invisible as a public concern in some other countries, for example in Eastern Europe. Bilateral contacts continue, and are useful. Equally, however, it is evident that EU mechanisms have been productive both as a method of spreading UK thinking and good practice in the field of counter-terrorism across the continent and beyond, and in defending the interests of the UK and other Member States in dealings with third countries. Measures of practical utility 8. The police will no doubt identify to the Committee those measures into which they consider it necessary or desirable to opt back in; and the Committee will test their assertions.
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