Members present

Baroness Corston (Chairman)

Lord Anderson of Swansea

Lord Dykes

Viscount Eccles

Baroness Eccles of Moulton

Lord Elystan-Morgan

Baroness Liddell of Coatdyke

Baroness O’Loan

Baroness Quin

___________________________

Examination of Witness

Dr Anna Bradshaw, Member of the Law Society of England and Wales’ EU Committee

Q12 The Chairman: Welcome to this second oral evidence session on the UK’s opt-in and international agreements inquiry, conducted by the Justice, Institutions and Consumer Protection Sub-committee of the European Select Committee of the House of Lords. We are very grateful to Dr Anna Bradshaw, who is here today representing the Law Society of England and Wales to share her knowledge with us. I would wish to point out before we start that this session is open to the public. A webcast of this session goes out live as an audio transmission; it is subsequently available via the parliamentary website. A verbatim transcript of your evidence will be taken, Dr Bradshaw. This will be put on the parliamentary website. A few days after this session, you will be sent a copy of the transcript to check it for accuracy, and we would be grateful if you would advise us of any corrections as soon as possible. If on reflection after this session you wish to amplify or clarify any points that you have made, you are very welcome to submit any supplementary written evidence to us. I do not think I need to say any more in introduction to you, seeing as we have had you appear before us before, but if there is anything about your professional background that you want to point out during answers to questions, that would be fine.

If I may start by talking about the interpretation of the justice and home affairs protocol, you will know that the Home Secretary and the Secretary of State for Justice wrote on 3 June, and they said that, “pursuant to” Title V—I put those words in inverted commas—in Protocol 21, “It does not explicitly restrict the ambit of the Protocol to measures which cite a Title V legal base”. Would you say that that was a reasonable legal interpretation?

Dr Bradshaw: I would say that it is certainly a possible interpretation. As you know, the court has yet to consider this specific question. It is regrettable in the sense that the protocol does not cater for disputes about what exactly this phrase means. The choice of legal basis, again, as you know, is the subject of great many disputes, not just in this particular area. You may have thought that it is something that could perhaps have been addressed in the protocol. Whether or not it is reasonable I do not think is for the Law Society to necessarily take a view on. It is possible, as I said.

One qualification to that is that we have broken it down into two parts. We have looked at the first part of the interpretation as being that a legal basis can be implicit if it is not expressly cited. We think that is possible in the context of a proposal, and where we disagree is the second part, which seems to imply that a measure can fall within Protocol 21 even if the justice and home affairs content is only ancillary and not a principal or primary objective or content. We would disagree with that because that does go against the settled case law on legal bases. It could—although we think it is very unlikely—turn out so that when the court does consider the matter, it develops two different strands of case law and considers the Protocol 21 situation to somehow merit a separate layer of interpretation, if you like, on top of the legal basis jurisprudence that already exists. We think that this is unlikely.

Q13 Lord Anderson of Swansea: It is not unknown, Dr Bradshaw, for a legal phrase to be capable of more than one interpretation, but normally there is one orthodox and one less orthodox interpretation. There is one that would be generally accepted from all the relevant case law; there is another that is strained. What is the orthodox interpretation of the phrase, not necessarily just here, but generally, from your experience?

Dr Bradshaw: “Pursuant to”—I have not seen this expression interpreted in a judgment by the European Court. I do not dispute that such a judgment may in fact exist, but I have not seen it.

Lord Anderson of Swansea: And in our own courts?

Dr Bradshaw: I am not familiar with an interpretation by the UK courts of this particular phrase. It is something that the Law Society is happy to look into further.

Lord Anderson of Swansea: Are you asserting that both interpretations can be properly justified, or is one stronger than the other?

Dr Bradshaw: I think that “pursuant to”, in light of the case law on legal basis, should be interpreted as requiring a legal basis. The reason I say that is because the case law on legal basis, specifically the five cases that we have considered for the purposes of this inquiry, seem to proceed on the assumption that a legal basis would be required. I say it also because of a case that has yet to be considered by the court, but is the subject of an opinion by Attorney General Kokott.

Lord Anderson of Swansea: Advocate General.

Dr Bradshaw: Sorry, Advocate General Kokott. It is case C‑81/13 where she suggests that Protocol 21 should be given a strict interpretation because it consists of special rules that are in exception to the general rules.

Lord Anderson of Swansea: Normally, the Advocate General’s opinion would be accepted by the full court.

Dr Bradshaw: Not necessarily, of course, but we would expect it in this case.

Q14 Baroness Eccles of Moulton: Dr Bradshaw, I think you have partly answered this question in your answer right at the beginning, but I think I had better ask it again, if you do not mind. The Home Secretary and Secretary of State for Justice’s letter—the same letter—limits the principle of validity to measures where JHA content is one of the main purposes rather than an ancillary one. Again, do you think this is a reasonable legal interpretation?

Dr Bradshaw: We would not consider it to be an interpretation that the court is likely to follow. The position on ancillary measures is problematic because we cannot see any precedent for not regarding measures valid on the basis that they have ancillary justice and home affairs content. The 3 June letter is, to an extent, also internally contradictory, in the sense that it treats ancillary justice and home affairs measures, if I can call them that, at proposal stage differently from post-adoption, because, if it were consistent, the policy should go on to say that, post-adoption, they would treat ancillary justice and home affairs measures in the same way, including where the Court of Justice has considered the matter and confirmed that the justice and home affairs content is ancillary, and so therefore does not merit a [justice and home affairs] legal basis.

Q15 Baroness Liddell of Coatdyke: There are some distinguished lawyers on this Committee; I am not one of them. I do not want to ask a leading question, but from what you have said so far, I get the impression that you question the legal reasoning in letters. Could you give us an assessment of your view of the legal reasoning?

Dr Bradshaw: Our view of the legal reasoning is that it is risky, in the sense that it exposes the UK to potential legal actions, but we can see why the Government are adopting this interpretation. If they are concerned that the Commission might seek to circumvent the Protocol 21 provisions, then it does fulfil a very important function in policing the boundaries. One way of policing the boundaries could be to publicly adopt a very aggressive policy—that is one way of classifying it, perhaps—that would act as a deterrent for the Commission or signal that it should think twice before trying to adopt a proposal or propose a measure on a non-justice and home affairs basis, if a justice and home affairs basis is merited.

Baroness Liddell of Coatdyke: That is very clear. Thank you very much.

Q16 Lord Elystan-Morgan: My question is on legal certainty, Dr Bradshaw. What is the impact of the Government’s opt-in policy in relation to international agreements on legal certainty within the EU and in the EU’s relations with third countries? Does the Law Society have any particular concerns about legal certainty for individuals in the UK? Am I right in thinking that the decided authorities—I think that there are four or five main ones—have all gone one way, and that is against the interpretation of Her Majesty’s Government?

Dr Bradshaw: As far as the Law Society understands, the UK Government have yet to be successful in arguing that there is a justice and home affairs legal basis to any of these cases. The implications would, in the Law Society’s view, be quite numerous. If you look at the latest opinion that I referred to earlier of the Advocate General, she suggested that where you have an international agreement, particularly an association agreement, there would be a risk of fragmentation of the agreement. In a separate case—this is the EEA agreement case, the first of the five—there was a suggestion that there is a potential for breach of the agreement itself if the UK were to exercise its opt-out under Protocol 21. The implications for individuals may be less clear and it will obviously depend entirely on the nature of the agreements in question, and whether you are talking about an EU national or a third-country national.

Lord Elystan-Morgan: Going back to what Lord Anderson raised previously, there are two possible interpretations here. The strict interpretation, quoting chapter and verse and origin, gives you certitude. The wider interpretation gives you latitude, but is that a price worth paying if you sacrifice a great deal of certainty?

Dr Bradshaw: I think it causes enormous practical problems. An example of that is where the UK Government have exercised their opt-in to measures which do not have a justice and home affairs legal basis. Now, on one view, that might not be problematic, in the sense that the other EU member states will not regard Protocol 21 as having been triggered, so the notifications have no formal effect. But from a certainty point of view, it is potentially problematic because it is not always clear on what basis the Government have decided that it has justice and home affairs content. It might set quite unfortunate precedents if they want to exercise a similar opt-in in the future. It is also, of course, problematic where the Government in the converse situation decide not to opt in, because there it would presumably take some time before it was apparent what the situation really was.

Q17 Baroness O’Loan: Dr Bradshaw, the Government’s letter, to which we have referred repeatedly, says that their opt-in policy “seeks to prevent the Commission from circumventing our opt-in rights … in measures that do not cite a Title V legal base”. In your assessment, has the Commission sought to circumvent the UK and Ireland’s opt-in rights?

Dr Bradshaw: The Law Society is aware of the suggestion that the Commission may have sought to opt-in Protocol 21 in connection with the directive on the protection of the Union’s financial interests, or the PIF directive. The Law Society has no insight into the Commission’s thinking on this point. We can only point out that the choice of legal basis is a matter of profound disagreement on occasion, not just between the EU institutions and the member states, but also within and among the EU institutions. You have the converse example of the Commission initially proposing a justice and home affairs legal base, but then changing its mind subsequently, so it may not always be very clear-cut. But, of course, it is a possibility, and that is why it might—on one level—make sense to have an aggressive policy, but the question, as was put earlier, is whether it is a price worth paying.

Q18 Lord Dykes: Dr Bradshaw, thank you for your guidance on these matters. In the recent cases on Title V and the opt-in protocol, which was mentioned in the call for evidence for this inquiry, is it your opinion that the European Court of Justice has correctly interpreted the scope of Title V, or has its interpretation of the scope been too restrictive?

Dr Bradshaw: The court, if I can generalise, appears to have proceeded on the basis of looking at the measure in question in its context, and the particular provision of Title V being argued for in its context. That approach seems fundamentally sensible. The difficulty is that the contextual analysis is very context-specific, by definition, and therefore you get variances between cases that are, on the face of them, quite similar and perhaps difficult to reconcile. The court’s case law does not help, either, because it is settled that the fact that a similar measure in the past has been adopted under a particular legal basis does not necessarily imply that it is appropriate in a subsequent case. Therefore, it is difficult to predict.

Q19 Lord Anderson of Swansea: We detect a certain view on the part of the Government’s lawyers of an intense suspicion of what the Commission may well do by perhaps altering the legal basis for its own purposes, to circumvent. From your own experience of the Commission, is that suspicion justified?

Dr Bradshaw: I can only point to the example of the EC-Switzerland agreement, which is one of the cases under consideration, where—as I believe I mentioned before—the Commission initially proposed that the measures should fall under Title V. The UK proposed to opt out and to negotiate separately with Switzerland, leaving out certain key aspects on the extension of social security rights to certain categories of workers. On that occasion, Switzerland, as I understand it, rejected the proposal, and therefore the Commission re-proposed the measure on a fresh basis, which was not a justice and home affairs basis. Would you call that circumvention? If that is circumventing Protocol 21 then, yes, that would be an example of circumvention.

Lord Elystan-Morgan: What was the intention of the Commission in altering the legal base?

Dr Bradshaw: To enable the agreement with Switzerland on the free movement of persons to be further developed in accordance with the wishes of the member states of the European Union.

Q20 Viscount Eccles: Following on from that, Dr Bradshaw, the Law Society of England and Wales, and the Law Society of Scotland’s opinion—if it is one—seems to be that the court’s case law on the opt-in protocol has reached a point where it will not change as a result of further case law. Is that a right interpretation? Interpreting it that way, the advice to the Government is to reconsider their policy. What form would that advice take?

Dr Bradshaw: We consider it unlikely that the court would depart from its existing case law on legal basis, particularly as regards international agreements, when circumstances similar to those that have been considered to date arise. Sorry, what was the second part of that question?

Viscount Eccles: It is a question of what advice you would tender to the Government in the light of that conclusion.

Dr Bradshaw: The Government’s existing policy is difficult to sustain in light of the June 2014 judgment in relation to the Philippines agreement. At the start of my evidence, I distinguished between the first and the second part of the Government’s interpretation. The second part, as far as ancillary justice and home affairs measures are concerned, would need to be revised quite urgently. The first part, I think, can stand if the Government consider that it fulfils a useful purpose, perhaps in the signalling sense that I mentioned earlier. If the Government do revise their policy, which we hope they do, we also hope that they take the opportunity to reconsider the considerations that currently inform their decisions to opt into a measure or not. That is a topic that the Law Society has raised on a number of occasions in a number of different fora, and our concern is that a too-frequent decision not to opt into a measure might encourage the Commission to find a non-justice and home affairs legal basis for a measure.

Q21 Viscount Eccles: Thank you. I should know the answer to this; it has been mentioned before. What is the legal status of “ancillary”? Is it an accepted legal description of a particular kind of measure within another measure, is it a term of art, or is it somewhere in between?

Dr Bradshaw: As far as we understand it from the court’s case law, the legal basis question is answered by reference to what the primary content or purpose of the measure is. It is quite clear from that case law that an ancillary content or purpose would not be sufficient to found a legal basis. Now, the distinction between ancillary and principal is very context-specific, and it is quite a difficult question to answer when you ask whether or not the court has reached the right conclusion, necessarily, in each case.

Viscount Eccles: Well, any conclusion at all, perhaps, in the first instance, apart from the correct one.

Dr Bradshaw: What the Law Society is concerned about, if I can speculate on the future course of the court’s case law here, is the prospect of a justice and home affairs content or purpose being ruled out whenever you have an international agreement. If we have read the Advocate General’s recent opinion correctly in case C‑81/13, the suggestion there seems to be that it would be extremely rare for any internal market provision, let alone a justice and home affairs provision, to ever be a principal or primary purpose or content when we are talking about an international agreement.

Baroness Quin: Could I just follow that up a little bit? I was interested in what you were saying about the Switzerland agreement. When that had originally come forward, had it been difficult to choose what the legal base for that was, or was it fairly obvious what base was going to be chosen, and therefore it was a clear subvention afterwards to find something else for it?

Dr Bradshaw: It should not have been difficult because it was very similar to the preceding case, which was the EEA decision. That concluded that the right legal basis in that case was, in addition to Article 218 on international agreements, Article 48 on free movement and the internal market. Quite why the Commission subsequently, in a very similar measure, decided that Article 79, which deals with the common immigration policy, was more appropriate, I cannot tell you, but in light of the precedent, it was surprising.

Baroness Quin: Are you aware of there being lots of discussions about what legal bases are appropriate for particular proposals coming from the EU, or is it normally a fairly straightforward process?

Dr Bradshaw: The default position is that it is always controversial, as far as I understand it. It is very much an art, it seems to me personally, but obviously the legal approach can be systematised in the sense that you get from reading the court judgments. But in practice it might be difficult to reconcile very similar agreements with each other when they have been found to have different legal basis.

Q22 Baroness Quin: The question I was going to ask is basically the one on procedure. If, say, a Title V legal base is added in the course of negotiations, from when should the three-month period provided for in the opt-in protocol run, in your view?

Dr Bradshaw: The Law Society is aware of the exchange between the European Scrutiny Committee and the Council Legal Service on this question. As we understand it, the Council suggested that the three-month time period should start at the moment that the proposal has a Title V legal basis. In the case of the PIF directive, as far as we understand it, it was unusual for the Title V legal basis to be added at the stage of the general agreement by the Council. In a sense, that was unprecedented and there seems to be now an answer, at least, from the Council’s point of view. As far as the Law Society is concerned, we would agree with that. I think that is the sensible answer; it provides certainty and it seems fair. It cannot be in anyone’s interest for the time period allocated to the UK to be shortened. It makes sense for the broadest interpretation to be taken of when it applies.

The Chairman: Thank you very much, Dr Bradshaw. We are very grateful to you for giving up your time to come and give us some evidence on behalf of the Law Society. This might seem like quite an abstruse subject, but it is one that is nevertheless very, very important, so we thank you very much for your time today.

Dr Bradshaw: A pleasure. Thank you.

The Chairman: This is, obviously, the end of the public session.