(12 years, 11 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Kelvin Hopkins (Luton North) (Lab)
On a point of order, Mr Speaker. This is a very simple point of order on the documentation for this debate. Page 2 refers to the Chairman of the European Select Committee. There is no such Committee; it is the European Scrutiny Committee. I think it is an important distinction.
Mr Speaker
It is an important distinction, and I am grateful to the hon. Gentleman for drawing it. I suspect that the hon. Member for Stone (Mr Cash), who chairs the Committee, will be even more grateful to him.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
I beg to move,
That this House takes note of European Union Document No. 14613/11, relating to a Commission Communication, Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law; agrees that the primary focus of EU criminal law should be tackling serious crime with a cross-border dimension; and further agrees that the general principles of subsidiarity, proportionality and necessity based on clear evidence must be respected when deciding whether to propose criminal sanctions to ensure the effective enforcement of EU policies.
I am glad of the opportunity to restate that the Government agree with the European Scrutiny Committee that the focus of European Union criminal law should be combating the most serious cross-border crimes. We also agree that in determining whether criminal law is required across the member states, it is critical that the general principles of subsidiarity, proportionality and necessity are respected.
The consequence of the Lisbon treaty coming into effect on 1 December 2009 is that the use of criminal law provisions is likely to increase, as they will be used to support the implementation of European Union policy in areas in which they have not been used before. However, the limits to that are not set in the communication that we are discussing, which is non-binding. Rather, they have a legal basis in the treaty, namely article 83. Paragraph 2 of that article limits the EU’s power, because it sets out that member states cannot be required to criminalise breaches of EU law unless the strict conditions in article 83 are met, and the United Kingdom opt-in will always apply. We have recently seen the first such proposal, on criminal sanctions for insider dealing and market manipulation.
Keith Vaz (Leicester East) (Lab)
The fact that we now have a specific example of where there can be co-operation means that we can extend it to other areas such as human trafficking. Does the Minister agree that in the case of specific crimes that cross borders and on which there is agreement, such as human trafficking and terrorism, we need to co-operate better with our European partners?
Mr Blunt
I am grateful to the Chairman of the Home Affairs Committee, and of course the answer is yes. Our position on human trafficking and child sex crimes has been to have opt-in, so I can confirm his point.
It appears that in anticipation of the developments under the Lisbon treaty that I have described, the European Commission is seeking to develop some principles to be taken into consideration when the criminal law is used. The Government’s position is that we will approach legislative proposals on justice and home affairs on a case-by-case basis, with a view to maximising the country’s security and protecting civil liberties and the integrity of the criminal justice system. There is nothing in the document that we are debating, which is only a communication, that changes or challenges that fundamental position.
As the House may recall, some time before the Commission communication, in 2009, the European Council agreed conclusions on model provisions to guide its criminal law deliberations. The conclusions were adopted to prevent incoherent and inconsistent criminal provisions in EU legislation, and in anticipation of the changes that the Lisbon treaty would bring.
A number of the Council’s conclusions relating to the assessment of need for criminal law are satisfactorily reflected in the Commission’s communication, most notably the principle that the criminal law be used as a last resort. The adoption of legislation in accordance with the principles of subsidiarity and proportionality is referenced, as is the need to establish necessity.
There are some things that we welcome in the detail of the communication. For example, it acknowledges the UK’s opt-in rights and clearly states that the diversity of member states’ criminal law must be respected. The use of criminal law only when it is a necessary and proportionate response to combating particular conduct is an approach that we apply in our domestic criminal legislation. We are therefore glad that the Commission’s and the Council’s statements reflect those principles.
However, there are potential concerns. The Government believe that it is essential that the Commission propose only European criminal legislation that is necessary and proportionate. Ineffective implementation of a European Union policy should not, in itself, trigger consideration of the use of criminal law.
Mr William Cash (Stone) (Con)
Bearing in mind that much of what we are considering will be governed in due course by qualified majority vote, any insistence in this House will be subject to the vagaries of that system.
Mr Blunt
Of course, what we are considering is guided by the opt-in principles in the Lisbon treaty under the relevant protocol. The emergency brake, as a final reserve position, then underwrites everything. For example, if we opted in to something at the beginning of negotiations, found ourselves outvoted by a qualified majority vote and the Government then came to a view that what had emerged was unacceptable, the emergency brake would remain available to us to prevent that criminal legislation from applying to us.
Charlie Elphicke (Dover) (Con)
To make it absolutely clear, will the Minister confirm that the EU criminal policy outlined in the document would not apply to the UK in any way, shape or form unless or until the UK chose to opt in?
Sir Alan Beith (Berwick-upon-Tweed) (LD)
Does the Minister recognise, when considering an opt-in or when seeking to establish whether there is genuine necessity, the importance of engaging with the relevant Select Committee at an early stage? The Select Committees, with their specialist knowledge of subjects such as agriculture and fisheries or home affairs, have an opportunity of ascertaining whether necessity has been established.
Mr Blunt
As a Justice Minister, I would be extremely unwise not to acknowledge the merits and wisdom of the recommendation of the Chairman of the Justice Committee. My right hon. Friend makes the proper point that there is an expertise in the Select Committees that should be engaged, if possible. Much of the process sits with the European Scrutiny Committee, and we are today making recommendations that the House should consider matters. I shall, of course, leave the detail of process, and the way in which the House should do that, to my right hon. Friend the Leader of the House. However, I hear what my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) says, and I acknowledge the force of his point.
Dr William McCrea (South Antrim) (DUP)
The explanatory memorandum on the European Union document acknowledges that responsibility for criminal law matters in Scotland and Northern Ireland rests with the respective Scottish Government and Northern Ireland Ministers. It then states:
“This EM has been cleared by officials in the Scottish Government and Northern Ireland.”
Will the Minister assure me that the Minister in Northern Ireland has been consulted on the matter and that he has had sight of the document before our discussions here?
Mr Blunt
I hope that I can return later to the hon. Gentleman’s intervention and give him a full answer.
As I said, there are some potential concerns about the detail of the principles. Ineffective implementation of a European Union policy should not in itself trigger consideration of the use of criminal law. We also agree with the European Scrutiny Committee that it is primarily for member states and their Governments to ensure that citizens can have confidence that they live in a Europe of freedom, security and justice. The European Union’s primary role should be driven by stopping serious cross-border crime.
The Government welcome the further caveats that the European Scrutiny Committee considers should be placed on the communication. The first relates to the European Union not seeking to harmonise extra-territorial provisions across member states. The Government believe that requiring member states to take extra-territorial jurisdiction must be considered on a case-by-case basis, having particular regard to the conduct to be tackled and its impact. We have accepted that it is appropriate to require member states to be able to prosecute their nationals who commit certain child sex crimes or human trafficking offences anywhere in the world. However, we have not accepted European Union rules on extra-territorial jurisdiction based on the nationality of the victim of crime.
The Government also agree with the Committee that we should be cautious about European Union criminal law that seeks to define aggravating and mitigating circumstances. We accepted some aggravating factors in the context of child sex offences or human trafficking. We consider those factors to form part of the agreed minimum sanctions, and, therefore, to be permissible.
The Government are unaware of the previous use of the term “Euro-crimes”, or, indeed, its origin. It is wholly misleading. I want to state clearly that no one will ever be prosecuted under a so-called Euro-crime. The European Union can set only the minimum elements of an offence. Each will have to be implemented in the domestic law of the member states. Hon. Members will understand why the Government view the term as singularly unhelpful. For European officials to use a shorthand internally to refer to crimes about which member states have agreed to establish minimum standards is one thing. For that term to find its way into official documents is another example of jargon that allows misrepresentation and misunderstanding.
Charlie Elphicke
I am listening carefully to the Minister. I am slightly puzzled. It seems as though there will be some minimum EU standard for, for example, illicit drug trafficking. However, do not we already have criminal laws in this country that apply to such matters? What would a European dimension add?
Mr Blunt
My hon. Friend is correct. However, when it is decided that the principles that we are considering merit the European Union’s taking action—as we have done with child sex offences and human trafficking—we will want to take the opportunity to opt in to EU legislation. That is why we will continue to make the judgment case by case. If it were decided, in the case to which my hon. Friend referred, that there was merit in acting at European Union level, we would doubtless do so. Of course, there could be cases where we felt that our standards were adequate but that our interests were being damaged in other parts of the European Union because drug trafficking was happening that affected our interests, and was not being properly policed. There are therefore circumstances, particularly with cross-border offences, in which there is merit in considering the matter.
The European Scrutiny Committee also asked for the Government’s view of the third sentence of the communication, which states that a
“EU Criminal Policy should have as an overall goal to foster citizens’ confidence in the fact that they live in a Europe of freedom, security and justice.”
The Committee took exception to that as being implausible and unwarranted because the European Union’s role is “helping” member states to stop crime. We agree and note that article 84 makes it clear that the European Union has only a supporting role in crime prevention. It cannot harmonise member states’ laws, except to the very limited extent in articles 82 and 83, which permit setting only minimum standards.
Our aim is to try to ensure that, when the European Union legislates on criminal law, there is convincing evidence that the offending activity constitutes serious and cross-border crime, and that there is consensus that the nature or impact requires common action. I therefore conclude by reiterating our view that it is essential that European Union criminal legislation is proposed only when necessary and proportionate.
It only remains for me to reply to the intervention of the hon. Member for South Antrim (Dr McCrea). Of course, the views of the devolved Administrations are taken into account in opt-in decisions that the United Kingdom then makes.
Mr Andy Slaughter (Hammersmith) (Lab)
It is a pleasure if not a luxury to have so much time on the Floor of the House to discuss a communication from the Commission to the European Parliament. It appears to have pride of place in Government business for the House this week.
Mr Speaker
Order. I very gently point out to the hon. Gentleman that no fewer than seven Back Benchers wish to speak in the debate. I feel certain that he will tailor his contribution accordingly.
Mr Slaughter
I started at a leisurely pace, Mr Speaker, and perhaps you anticipated that I would continue at such, but I take the hint. We have only an hour and a half, but I will not take that much time.
EU criminal policy is a significant topic and in other circumstances it could provoke lively and controversial debate, but I suspect it will not do so today for a variety of reasons. First, the document is only a communication—it opens the door to communication rather than decides its outcome. As the Minister has said, it is non-binding. Secondly, there are rightly so many caveats, conditionalities and reservations in the UK position on EU criminal policy that any controversial proposal could be effectively filtered at one stage or another.
The European Scrutiny Committee concedes that in supporting the Government’s cautious approach, and in appearing to take principal exception to the language of the document. I do not want to be drawn into a discussion of the linguistic inelegance of “Euro crimes” or whether the EU should have the temerity to express its wish to foster freedom, security and justice. Those are peripheral issues.
The third reason why I believe this is an uncontroversial proposal is that there has been—even on the Lisbon treaty and the criminal justice decisions flowing from it—broad consensus between the parties. That remains, and the Opposition do not intend to press the motion to a Division.
On the substance of the Commission document, we are pleased to note the emphasis that the Commission places on respecting the general principles of subsidiarity, necessity and proportionality in its memorandum. Those should be at the forefront of the Commission’s mind in deciding whether to propose criminal sanctions to ensure effective implementation of EU proposals. That was the intention of the Lisbon treaty and the exemptions that the previous Government negotiated.
The previous Government were clear at the time of the Lisbon treaty that EU co-operation on criminal justice and policing should not affect fundamental aspects of our criminal justice system. The extended opt-in arrangements that we secured at the time mean that we have complete choice on whether to participate in any justice and home affairs measure.
As each proposal for new EU JHA legislation comes forward, we urge the Minister to consider carefully whether it is in British interests to participate. From the “Report to Parliament on the Application Of Protocols 19 and 21”, which was released this week, we see that the Government have operated in exactly the way we envisaged when negotiating the opt-in. The document makes it clear that:
“Over the past year, the Government has taken 17 decisions on UK participation in EU JHA legislative proposals. In total the UK has opted in to nine proposals…including one decision to opt in to a measure post adoption…The Government…decided to not opt in to eight proposals.”
The Opposition do not always agree on individual proposals—we did not agree with the Government’s decision on the right to a criminal lawyer—but we agree on and indeed instigated that opt-in process.
In any event, and as the Minister has acknowledged, there is a recognition by the Commission that EU intervention in criminal justice is a sensitive matter, hence the emergency brake, the two-step approach and the fact that additional “Euro-crimes”—if I may use the shorthand—will be added only by unanimous decision. It is clear that that is a matter of last resort.
There is broad agreement on areas on which it is important to act on a European level. The Opposition support co-ordinated action to tackle organised crime and terrorism, and to provide greater protection for children and ensure the security of our borders. Such co-operation continues to be driven by the challenges we face today. Tackling crime, countering terrorism and securing our borders are not issues of mere domestic concern; they have an international dimension. We need to work with our allies in the EU to ensure that we achieve our objectives.
As the European Commission states in the document:
“In view of the cross-border dimension of many crimes, the adoption of EU criminal law measures can help ensure that criminals can neither hide behind borders nor abuse differences between national legal systems for criminal purposes.”
There are more contentious matters than this one, such as the European arrest warrant, which the House debated relatively recently. The Opposition hope that the incremental approach continues. A clear example of that—on insider trading, insider dealing and market abuse—is given in the bundle. The Government, in commissioning a report to look into that matter, are taking a sensible line. That is a good example of a matter on which legislation might assist the Government and the country, because we have taken steps when other European countries have not done so.
On that basis, I shall bring my remarks to a close to allow other Members to take part in the debate. I welcome the opportunity to debate these matters, but there is little controversy on the principle, even if controversy on individual decisions to opt in remains.
Mr William Cash (Stone) (Con)
We have just heard a breathtaking example of complacency from the Government—sorry, I mean the Opposition. I say that because, unfortunately, the manner in which this issue is being approached, and the reason why the European Scrutiny Committee thought this matter should be debated, is very simple. We have heard reservations expressed so far by the Minister and shadow Minister, but they do not take express account of the fact that once a communication has got going—particularly a communication under the aegis of the Lisbon treaty—we effectively open the door to considerable, radical proposals for the expansion of European criminal law.
I am glad the Minister made the comments he made and I endorse all of them. I am also glad he agrees with the Committee on a wide range of matters, particularly the nomenclature and the phrase “Euro-crimes”. However, this is a substantial issue. The document that was presented to us by the Commission concludes that
“the new legal framework introduced by the Lisbon treaty … considerably enhances the possibility to progress with the development of a coherent EU Criminal Policy which is based on considerations both of effective enforcement and”—
it claims—
“a solid protection of fundamental rights. This communication represents a first step in the Commission’s efforts to put in place a coherent and consistent EU Criminal Policy by setting out how the EU should use criminal law to ensure the effective implementation of EU policies.”
It could be no clearer than that. That is the intention, and believe me, it is the direction and the line of route.
Other hon. Members will no doubt deal with other matters arising from that, but as Chairman of the European Scrutiny Committee, I want to explain why we insisted that this matter should be debated. The Committee recommended the document for one simple reason: the communication outlines how a supranational organisation intends to pass criminal legislation that will have a direct impact on our citizens. This is indeed a sensitive area, as the enactment of criminal law is traditionally the domain of sovereign legislatures.
In the conclusion to our report, we noted the emphasis in the communication that the Commission places on respecting the general principles of subsidiarity, necessity based on clear evidence, proportionality, including the principle of ultima ratio—in other words, criminal law as a means of last resort—and the legal traditions of the EU member states when deciding whether to propose criminal sanctions to ensure the effective implementation of EU proposals. Those words are welcome, but we wait to see whether they are respected. Evidence to the contrary is abundant in relation to matters of this kind. That is because the manner in which it is proposed to move down the route of criminal law—albeit under the Lisbon treaty, which my party opposed tooth and nail during its enactment—relies heavily on the fact that there is a desire among many people in the European Union to have one country, which, by its very nature, means they would prefer to have one European criminal law policy. There is therefore a direct contradiction between the manner in which the proposals are being made and the words used. We argue that we should wait to see whether the suggestions that lie behind the Commission’s statements are respected.
We are gratified by the Government’s reaffirmation that any EU action in the field of criminal law will have to be justified on the basis of robust evidence, as well as demonstrating why lesser administrative penalties are not appropriate. The Committee intends to hold the establishment to strict account on that question. We also support the Government’s cautious approach to the Commission’s communication, but we add further caveats of our own. The European Union should not seek to harmonise the traditional rules on extraterritorial criminal jurisdiction in member states. The UK does not assert extraterritorial jurisdiction over those who are “habitually resident”—an expression that has found its way into EU criminal legislation—in this country. The EU should also refrain from defining “mitigating and aggravating circumstances” for the commission of crimes, which is best left to the discretion of the sentencing judge. Furthermore, the expression “Euro-crimes”, which is used in the communication for the 10 offences listed under article 83.1 of the treaty, is inappropriate and misleading. We ask the Government to do their utmost—in fact, we would go so far as to insist that they do this—to ensure that the term does not enter the EU’s lexicon. Indeed, I was extremely glad to hear what the Minister had to say about that.
The other point is that although there is the question of opt-ins and whether we are to accept the provisions, we have seen a torrent of opt-ins over the last few months, since this coalition Government came to power, and a significant number of Members of Parliament are deeply concerned about the tendency in that direction. Furthermore, in addition to the opt-ins, there is the emergency brake. We understand all that, but we have to have regard to that tendency, because of what can happen once the door is opened on that scale. In the light of what I said about what is in the mind of the Commission and others in the European Union, and about the tendency to move towards a policy of further integration, which would include criminal law, we should be not merely cautious, but extremely resistant towards any attempt to move further down that route.
Sir Alan Beith
When I was chairing the Justice Committee, I do not remember ever meeting anybody, in any justice committee in any member state, who believed that we should be working towards a single, harmonised criminal law that would replace the criminal law of member states across Europe. Is the hon. Gentleman not conjuring up a spectre?
Mr Cash
Certainly not. I am not conjuring up a spectre; I am talking about a tendency. In almost every area, the original proposals—from Maastricht, through to Nice, Amsterdam and Lisbon—have adopted a minimalist approach at the beginning, but then expanded, moving further and deeper into the areas of competence that have been acquired. I am not going to dispute what the right hon. Gentleman says about what he has heard; I am merely referring to what I have observed, which is also understood by many others, including the Government.
Jacob Rees-Mogg (North East Somerset) (Con)
The ambition of the European Commission is set out on page 18 of the documents. Its ambition is not a limited extension of criminal policy; it is to have
“an important tool to better fight crime”—
that is, any crime. It is not limited.
Mr Cash
I entirely agree. Furthermore, article 83.1 sets out the following areas of crime:
“terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.”
It continues:
“On the basis of developments in crime”—
the broader remit under which such an extension is proposed—
“the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph.”
Although article 83.1 says that the Council
“shall act unanimously after obtaining the consent of the European Parliament,”
we are talking about a process of opening up and extending those areas of domestic control over criminal jurisdiction that are likely to be transferred to the European domain.
On a final note—and to reply to the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the Chairman of the Liaison Committee—the Committee noted that the third sentence of the communication states:
“An EU Criminal Policy should have an overall goal to foster citizens’ confidence in the fact that they live in a Europe of freedom, security and justice”.
I ask the Minister to say whether he agrees with that statement. For our part, we in the Committee think it an example of dangerously ideological thinking. We are concerned that such thinking may inform future proposals from the Commission. Citizens look to their Governments to provide freedom, security and justice in their own states. To expect freedom, security and justice to flow in 27 European states under the auspices of supranational institutions may sound laudable, but in reality it is both implausible and unwarranted. We think that the Commission would have done itself a service by cutting out such a statement from a policy paper of such importance and limiting its ambitions to more practical objectives.
Keith Vaz (Leicester East) (Lab)
It is a pleasure to follow the hon. Member for Stone (Mr Cash). He and the other members of his Committee are quite right to have brought this matter before the House. Although I start from a different position on the European Union from him, I think it is vital that the House has every opportunity to discuss issues concerning Europe. I commend him on working hard to ensure that on Thursday afternoon there will be a debate before the European Council meets.
I thought that the hon. Gentleman was a little harsh on my hon. Friend the Member for Hammersmith (Mr Slaughter) when he accused him of being complacent. I have known my hon. Friend since he was 11-years-old —we were at school together. There are many ways to describe him, but “complacent” is not one of them. However, if I may digress for just one second, Mr Speaker, I used to try to avoid being in class with him, because our names were adjacent on the register, and when they were read out in quick succession—“Slaughter”, “Vaz”—it was usually my hon. Friend leading the cheers.
Anyway, back to the European Union and away from our school days. I was heartened by what the Minister said about this measure. It is important that we deal with such measures on a case-by-case basis, for the very reasons cited by my hon. Friend. The European arrest warrant, which began as a good idea, is now out of control, with hundreds of requests being made by certain EU countries—I am sure that when he gets to speak, the hon. Member for Esher and Walton (Mr Raab) will make reference to that fact. That is something that we need to guard against, so a cautious approach to the extension of criminal policy is extremely important. We have our own criminal law, and that is how it must remain, but we need co-operation with our European partners in a number of areas. I do not accept that the list read out by the hon. Member for Stone is definitive. It is a good list for us to work on in regard to co-operation on those issues with our European partners, although not necessarily in regard to legislation. The Government should bear that in mind when they approach those issues.
Kelvin Hopkins
As my right hon. Friend will have heard, there is a difference of view between the Chair of the Justice Committee and the Chair of the European Scrutiny Committee on whether this constitutes a degree of legislative creep towards an objective of unifying the legal systems in Europe. If one of them is right, we can be happy that there is no creep, but the Chair of the European Scrutiny Committee seems to think there is a degree of legislative creep involved. Which one does my right hon. Friend agree with?
Keith Vaz
I agree with both of them, because they were each making different points. We must be fair to the Chair of the Justice Committee, who is also the Chair of the Liaison Committee, because he was disputing a point of debate, not a point of fact, as to whether he had met any chair of a justice committee in any other European country who agreed with the view of the hon. Member for Stone view that one criminal law was being sought for the whole of the European Union. I have attended quite a few meetings in the European Union, and I have certainly never heard anyone say that they wanted one criminal law for the whole EU.
Keith Vaz
That clarification is helpful, but as the commissioners are not here to defend themselves, I shall try to move the debate on.
The hon. Gentleman mentioned certain crimes that are of course not Euro-crimes: terrorism, trafficking in human beings, illicit drug trafficking, money laundering, corruption and computer crime. They go beyond the borders of the European Union, but it is important that we work with our European partners to try to combat those problems. There are times when we need to act quickly—in relation to the trafficking of human beings, for example. Our last report pointed out that at least 100,000 people were being trafficked around the European Union each year, including 5,000 in the United Kingdom, and that there did not appear to be a common European Union strategy to deal with that. We do not need a new criminal law that covers all the EU countries to deal with it; we need to ensure that our structures—Europol, Interpol and others—are able to service the needs of our criminal law. We should be able to prosecute those involved in human trafficking quite happily, without having regard to what is being said in other countries. Similarly, when Turkey eventually joins the European Union, it will have to deal with the problem of illegal drug trafficking. Almost 80% of the heroin that comes into Europe comes from Afghanistan via Turkey.
We can talk about co-operation, but we need to be very careful when we talk about extending criminal law. Our systems are completely different, and I do not think that anyone in the House would accept a proposition to harmonise our criminal justice systems. We should, however, proceed in the direction of co-operation.
I hope that the Minister will also examine the question of data. People can arrive in this country and undergo checks that do not reveal that they have committed criminal offences elsewhere in the EU. Dealing with that does not require legislation; it requires ministerial co-operation and co-operation between EU countries. So if someone who had committed a criminal offence in Poland, for example, came here and was involved in activities that required that information to be made available, that disclosure should be possible. Equally, that should also apply if someone who had committed an offence here went to another part of the EU.
I welcome the Government’s approach, but I urge the Minister to be cautious, because any extension would cause us great problems. However, it is important to push forward the co-operation that exists at EU level on the entire justice and home affairs agenda.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I support the motion, and I shall preface my remarks by saying that any free trade area needs an enforceable and effective system to secure compliance with the requirements put in place to create and maintain an open market. Europe also needs to keep pace with the international, cross-border nature of a great deal of crime, and with the ease of movement that criminals enjoy. Indeed, in combating crime, Europe should take advantage of its capacity for co-operation and combined effort in order to defeat criminals and criminal organisations. All our citizens, whatever their views on the European Union, would recognise the value of that.
We cannot ignore enforcement failures in various member countries, because they often harm the interests of British businesses, which can be put at a competitive disadvantage. British farmers and fishermen can also be adversely affected by inadequate enforcement in other countries. Obviously, the converse can also be true. It is usually unhelpful, however, to add new structures and layers of law, of the administration of justice and of prosecution authorities to the well-developed national systems that exist in most member countries. I therefore agree with the motion when it mentions subsidiarity and the need for robust evidence of necessity when EU measures are to be considered.
I do not entirely share the European Scrutiny Committee’s dislike of the idea of fostering citizens’ confidence in the fact that they live in a Europe of “freedom, security and justice”. It is an important feature of the European Union that membership of it commits member states to maintaining a range of important values including freedom, justice, security and human rights. The Committee calls this an example of ideological thinking. I thought that ideological thinking was making a comeback in the Conservative party, but perhaps it is still disapproved of. I remember that during my earlier political life ideology was frowned on by the Conservatives, but then Mrs Thatcher came along with an ideology of her own. That is a byway that I shall stray no further along, however. The principal responsibility for achieving these aims rests with the member states of the European Union.
The Minister said that we were about to embark on a complex opt-out—or opt-in—process, which is relevant to what we are discussing today. Under the Lisbon treaty, the Government could opt out of everything in the home affairs and justice area. They could also opt in to everything. The more likely outcome, however, is that they will seek a negotiated package, in which we opt in to those areas where it is genuinely beneficial for us to do so without complicating our system by opting in to areas that would be inappropriate for us. I hope that the Government will share with us their developed thinking on how that will be achieved, as a great deal of negotiation will be involved.
The Commissioners tend to proceed by launching a large number of proposals; they fire off a hail of bullets, very few of which reach their target. If the Select Committees of this House were to devote time and attention to every idea that appeared in a Commission paper, we simply would not be able to get on with our work on domestic policy issues. It is therefore important for Select Committees to be able to identify those elements that would benefit from careful Select Committee attention. This is true of home affairs and justice matters, and of others.
The European Scrutiny Committee carries out an important role. It does the valuable and not always very inviting work of examining the legality and proportionality of EU proposals. However, it is the Select Committees that relate to Departments that have experience and expertise in specific policy areas. It would be unreasonable to expect the European Scrutiny Committee to know enough in any given case about whether there was a necessity justification for something and whether it was a policy direction that would be appropriate in the United Kingdom. That is the kind of work that Select Committees are expected to do.
Mr Cash
I understand that there is obviously a complementarity between the European Scrutiny Committee and departmental Select Committees. It is important, however, to reaffirm the fact that we rarely recommend a communication for debate, but on this occasion, because of the nature and coherence of the proposals advocated by the Commission on criminal policy, we thought it was a good idea at least to give it a kick-start on the Floor of the House.
Sir Alan Beith
I entirely agree with the hon. Gentleman and with the action he has taken on this matter, and I very much welcome the fact that the debate is taking place. It is certainly the view of the Liaison Committee that more attention needs to be given to developing European proposals that will, if we are not careful, only come to the House at too late a stage for us to have any significant influence on them. The work of the European Scrutiny Committee in all that is extremely valuable, but there are limits to what it can do.
In conclusion, let me remind Ministers of two things. First, we want to secure as much help as we can get for Select Committees from the UKRep staff in Brussels, who are extremely good when we go as visiting Committees in giving us advice on what is happening, what is being proposed and which of the Commission’s brainwaves is getting somewhere and which does not look likely to do so.
Keith Vaz
I fully support what the right hon. Gentleman is saying. I do not know about his Committee, but we find we are so busy that we simply do not have the time to cover European issues, and we rely heavily on the European Scrutiny Committee to alert us if anything is going wrong. One way in which we could be more involved would be if UKRep was more responsive to our work.
Sir Alan Beith
It is not so much about being responsive, because when we have asked representatives for help, they have given it. I am looking for a proactive approach. It would be very helpful if the Foreign Office gave the team in Brussels a clear indication that it would be helpful to alert Select Committees to proposals that looked like gaining traction, and would have important implications for the United Kingdom.
Secondly, of course, it is important that Ministers come to Select Committees before important Council meetings and afterwards, if it is necessary to secure a report back. The House too often finds that a set of complex documents that are extremely difficult to decipher comes before us in the General European Committees at a stage far beyond that at which it would be possible to influence or change it. We have relied unfairly on the members of the European Scrutiny Committee, whose work I again recognise as extremely important, and Select Committees have a job to do that is difficult to incorporate in a crowded work programme, so the more help we can get from Ministers and our officials to alert Select Committees to important issues that are coming up, the more effective we can be.
Mr Geoffrey Cox (Torridge and West Devon) (Con)
The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) said one very wise and pertinent thing. It was not the only wise and pertinent thing he said, but it was one that struck me, and that was that it is almost invariably the case that it is undesirable to introduce into a mature and well-developed legal system another layer of legislation that is already covered satisfactorily by domestic legislation.
I recall that in the 1990s I had practical experience of such an occasion, when the European Union introduced its own sanctions on Serbia. It introduced a directly applicable regulation in exactly the territory on which this country had already legislated under the United Nations Act 1946. I recall that the case in which I took part challenged the domestic legislative regime on the basis that it occupied territory in which the European Union had legislated and that the two regimes, minutely analysed, could not be seen to be compatible. Not only were they not compatible in their substance, but they were incompatible in the sense that it is well-established case law in the European Court of Justice that any legislative activity by the European Union must take precedence and primacy not only in the substance of its impact and effect but in its appearance. In other words, the legislative authority of any particular action in a member state, once the European Union has legislated, must be seen to emanate from the European Union. To that extent, it is an extremely intolerant legislative authority.
That means that one must examine extremely carefully—I see that the Secretary of State for Justice is doing so as regards the market abuse framework—whether the introduction of European Union law into a sphere that is already occupied by domestic legislation will cause such a complicated unintended consequence. I recall that the Secretary of State for Trade and Industry at the time was poised with an order to lay before the House in case the Lord Chief Justice in the Court of Appeal accepted the arguments that I and others were advancing. He was ready to go that morning, because of the chaos that would have ensued had the domestic legislation been struck down as incompatible with the European Union’s legislative action.
It is extremely undesirable that that should happen and, having listened to the various balances that have been struck by the right hon. Member for Berwick-upon-Tweed, the hon. Member for Hammersmith (Mr Slaughter) and my hon. Friend the Member for Stone (Mr Cash), who is so often proved, even after many years, to be right, I prefer the analysis of my hon. Friend the Member for Stone. The Commission has a cavernous maw into which legislation is sucked into a black hole along with our rights, prerogatives and spheres of sovereignty. I am strongly concerned about the consequences for this Government if they continue with their policy of opt-ins, as was observed by the right hon. Member for Berwick-upon-Tweed a few moments ago.
When a country opts in to a sphere of competence of the European Union, it does not opt in merely to a different wording or to some dilute or mild consequence of that kind. It opts in lock, stock and barrel to the hegemony of the European Union institutions, by which I mean the European Court of Justice, the Commission and the rest of it. That might attract complacent smiles on the Opposition Benches—and even on the Government Benches—but just think of what legislative territory is already included. Firearms control—which has not been mentioned so far, but which is covered by a series of European directives—organised crime, VAT, drug trafficking and money laundering are all covered by extensive directives and directly applicable regulations. There is not a Crown court in this country that is not, as we speak, preoccupied with such trials. If we opt in, we are opting in to the jurisdiction of the European Court of Justice and enabling it to examine our procedures in our Crown courts and see whether they comply with the minimum rules that this policy will set down.
Kate Hoey (Vauxhall) (Lab)
I have listened to the hon. and learned Gentleman and I agree with everything he has said so far. Does he agree that the most iniquitous thing about all this continuing opting in and moving into an ever-closer European Union for this country is the fact that the British people have never given their permission for that to happen? Does he agree that that is what we should really be arguing for now?
Mr Cox
I do agree. The fundamental underlying principle that should exercise all Members of this House when it comes to criminal law powers being assumed by a supranational organisation is that what is or is not criminal, and what is or is not an action that puts an individual citizen of this nation beyond the pale of the criminal law, should be a matter for this House. It is to this House that citizens of this country entrust the moral judgments that underlie decisions about what should be criminalised and what should not. We are directly accountable to that citizenry, whereas the institutions of the European Union are not. That is why I have come to this debate to sound a note of caution and warning. That is also why, having listened to the different expressions of caution that have been so well made by my right hon. Friend the Member for Berwick-upon-Tweed, who chairs the Select Committee on Justice, I prefer the analysis of my hon. Friend the Member for Stone.
There is no doubt but that a vast field is already occupied by the European Union, and if we see a panoply of institutional responsibility and jurisdiction introduced into the criminal law, we will be exposing our procedures, our rules of evidence and our very jury trial itself to challenge in the European Court of Justice as not complying with the minimum rules set down. That might not happen this year or the next, but the European Union thinks in terms not just of one decade, but of decades and decades; it proceeds slowly. That is why, like Cassandra, or like Balaam’s ass, my hon. Friend the Member for Stone so often stands in our way—or indeed, like the angel that prevented Balaam’s ass from going on, he beckons to us and indicates that we would do well to think very carefully before we simply approve policies of this kind without understanding that there is an underlying caution that we should always exercise.
Mr Dominic Raab (Esher and Walton) (Con)
First, I commend the Under-Secretary of State for Justice, my hon. Friend the Member for Reigate (Mr Blunt), for coming to the House to debate this subject transparently and openly because it is one that demands scrutiny. I echo the warning in the excellent speech of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), because today, as the Prime Minister leads efforts to scale back the overweening and often arbitrary role of the European Court of Human Rights in Strasbourg, we might well remind ourselves that prevention is better than cure.
The document before us has all the hallmarks of a massive and substantial power grab from Brussels in the area of EU criminal law. We might have ad hoc opt-outs, but the direction of travel has very serious implications for this country. The clear ambition in the document is for a pan-European code on what the Commission calls “Euro-crimes”, backed by EU penalties and jurisdiction. The document talks about giving
“full judicial control to the European Court of Justice”
in Luxembourg.
The aim is for a uniform European justice policy by any other name. One has only to look at the detail in the document, which seeks—I quote these words for the sake of accuracy, to show that this is not just scaremongering—
“approximation of definitions and sanction levels”
for serious crimes. It aims for “common minimum rules”, including common EU punishments. The document reeks of the Soviet style EU double-speak to which we have become accustomed. On one hand it accepts the national “diversity” of the traditions of justice across the continent, including our own, but in the same sentence it calls for “consistent and coherent” EU criminal law. Ultimately, that is a circle that cannot be squared.
What areas will the new Euro-crimes cover? It is one thing to call for direct practical co-operation between national authorities on counter-terrorism and serious crime, although we do not need more legislation in that regard, but the document would expand EU law into environmental crimes, employment offences, data protection, fisheries offences, traffic offences, financial market behaviour—I wonder who that is aimed at—and, of course, at the top of everyone’s list of priorities, protecting the euro.
Britain has opt-outs, but we are still affected by the massive increase in EU law in the field of justice and home affairs. With cross-party support, the House has unanimously called on the Government to renegotiate the European arrest warrant—the Chair of the Select Committee on Home Affairs, the right hon. Member for Leicester East (Keith Vaz), presciently predicted that I would raise this issue—because it is resulting in far too much rough justice for far too many innocent citizens. As we consider the ambitions for EU criminal law, I should like to know from the Minister where that issue is on the UK agenda and where it is on the EU agenda.
The UK has also opted in to the draft European investigation order, which would allow European investigators and prosecutors to direct UK police forces to pursue leads and collect evidence. That is a threat to the liberty of our citizens, and is the last thing that hard-pressed police forces need right now. What progress has been made on limiting the risk of abuse of such wide powers and on ensuring there are safeguards that comply with British standards of justice? On a more fundamental level, why is the EU expanding its competences before it has corrected the current defects?
This issue is a prelude to the decision to be taken by June 2014 on whether Britain should opt in or out, wholesale, of the pre-Lisbon justice and home affairs legislation. If this document is a taste of what is to come, it demonstrates all too well the magnitude of that decision. This is a fork in the road: it is time to decide whether Britain will retain our unique justice system and common-law tradition. This is one of the most serious constitutional challenges the House will face in this Parliament, and I am confident that Ministers will weigh the consequences of that decision very carefully and ensure that Parliament—consisting of the elected and accountable law-makers for this country—will have the opportunity to debate and vote on that crucial decision.
Charlie Elphicke (Dover) (Con)
It is a privilege, as ever, to follow my hon. Friend the Member for Esher and Walton (Mr Raab). My concern is about this kind of extension of the whole European project. We see it creeping on further, out of taxation and all the other measures with which we are familiar, into the criminal sphere. I find this policy document highly objectionable in many areas. First, I find objectionable the statement that
“EU Criminal Policy should have as overall goal to foster citizens’ confidence in the fact that they live in a Europe of freedom, security and justice”
That is not the point of European criminal policy. Rather, it should be the criminal policy of each individual member state. The EU, by trying to say that its policy is somehow about these principles and that citizens look to it for the execution of those principles, is overstretching and overselling. It is also misreading the situation, given that it is so far removed from people and has done so little to instil confidence.
The document also says—this is more in line with where things should be—that
“the EU can tackle gaps and shortcomings wherever EU action adds value.”
I take a pragmatic position on this. I do not think that one should say, in a knee-jerk reaction, that the EU should have nothing to do with anything, or that we should embrace everything it says as messages and tablets from heaven written in stone that we should accept, honour and obey. We need to look at things on a case-by-case basis.
Nicky Morgan (Loughborough) (Con)
My hon. Friend is making an excellent argument. Within the bundle of documents before us is the draft insider dealing and market abuse regulation. That is an area in which I worked before entering the House. Does he agree that with cross-border activity such as market abuse, which in the 21st century can be committed anywhere in the world and have an effect on another territory, there is an argument that the EU has a role to play in setting out sanctions for such behaviour?
Charlie Elphicke
My hon. Friend helps me to move to my next point. The policy applies not just to market abuse. It also applies to
“terrorism, trafficking in human beings, sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.”
The list is packaged in the manner of “Do you like hospitals?” or “Do you eat food to live?”. It has been put together with breathtaking cynicism and in a way that would make even a push poller blush. We know what this is really about. It is about starting with something that everyone can accept so that they say, “Oh, yes, that’s a good idea,”. That puts the principle in place before things are moved forward. The document says, “We then want to move forward into other areas,” as my hon. Friend the Member for Esher and Walton just said.
Let us look at the issue of market abuse. Why can we not have the market abuse rules in the criminal law of our own nation? Why do we need to have minimum standards across European law if we do not necessarily want to opt in? We are being told that there is no such thing as—
Charlie Elphicke
In a moment.
We are being told that it is a misdescription to talk about a Euro-crime, but on page 9 the document states, under the heading, “What is the possible content of EU minimum rules on criminal law?”:
“The definition of the offences…Regarding sanctions, EU criminal law can require Member States to take effective, proportionate…criminal sanctions for a specific conduct.”
So if we touch on the issue of definition of the offence, and add on criminal sanctions, there is a risk that what we are actually talking about is, in effect, or could be seen as, a form of Euro-crime. I hasten to add that I do not necessarily regard that as a bad idea.
Jacob Rees-Mogg
If we were to have this co-recognition of crimes and action, would it not make more sense to do it with New York rather than with Brussels, because there is much more international financial trading in New York and London than there is in Europe?
Nicky Morgan
I will be brief because I know that time is limited. My hon. Friend asks why we need to have rules in the UK if we already have rules across Europe. The point is that, as I understand it, the proposal would bring the rest of the EU’s rules on market abuse up to the standard that we already have in this country. New York already has those standards. This is an improvement, bringing the rest of Europe along with us.
Charlie Elphicke
The European Union is doing this anyway. The central issue is whether we opt in. This is really a shadow debate for the whole issue about opting in. The letter sent by the Home Secretary to some colleagues on 21 December 2011 talks about the whole issue of the opt-ins. There are 133 directives, regulations and so on where opting in could take place.
Stephen Phillips (Sleaford and North Hykeham) (Con)
My hon. Friend refers to the central issue. Is not the central issue that raised by my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox)? If we are going to criminalise people in this country, or indeed in any other member state in the EU, by law, then those who have passed those laws need to be accountable to the citizens to whom they apply, and that is not the case in relation to the European Commission or the other EU institutions, which are not accountable, in any real sense at all, to the people of this country.
Charlie Elphicke
I completely agree with my hon. and learned Friend, and that is my central point too. It is not for the European Union to start defining crimes; it is for individual nation states to do so.
There are areas where we should consider opting in. For example, I intervened on the Minister and talked about the issue of drugs. Let us look at the measures in the list provided by the Home Secretary. On one side, it talks about co-operation between customs authorities and business organisations on combating drug trafficking. Good. That is what we should have—cross-border co-operation. As the representative of Dover, I know that that is really important and makes a difference. Another 1996 justice and home affairs measure that was proposed, concerns
“the exchange of information on the chemical profiling of drugs to facilitate improved cooperation between Member States in combating illicit drug trafficking.”
Good. Yes, we should do that.
However, the dividing line for me is the 1996 JHA measure No. 750, which concerns
“the approximation of the laws and practices of the Member States of the European Union to combat drug addiction and to prevent and combat illegal drug trafficking.”
When one considers the approximation of laws and the issue of codification and requiring member states to treat everything the same way, one is rapidly moving into the area of a common criminal law—Eurojust, the European arrest warrant, the Euro-investigator, Europol and Euro-crimes. If we are to take that route, my point is simply that we should engage the country as a whole and have a proper, open discussion about what is going on, not try to spin it.
There are some cases where a common criminal law may be appropriate, particularly in the cross-border context; in others, we might conclude that it is not the right way to proceed. But to draw up a cynical list of everything that everyone would agree are the most heinous crimes known to mankind, in order to get the principle and then to extend it later, is something that we have seen with the European Union time and again. It is the fundamentally wrong thing to do, and it would be the wrong thing for us to do in terms of the opt-in or opt-out debate. I believe that when we have that opt-in/opt-out debate over the next two years, we should ensure that we include the country as a whole and have a proper, national discussion.
Jacob Rees-Mogg (North East Somerset) (Con)
I am very glad that the European Scrutiny Committee recommended this European Commission document for debate because it shows, once again, the ambition of the European Union. We have heard before—it is in the treaty of Rome—the line about ever-closer union. We often hear from the great and the good in this country that we do not need to worry about what the document says because it is not happening yet; it is not so important; these good and great people are not necessarily talking about it yet. And then it creeps in and it happens.
The ambition of the Commission’s document is exceedingly great, and the policies that it has already adopted are important. We notice, in the package of papers before us, that in 2009 the European Commission announced, under the Swedish presidency, that it would have more broad provisions guiding the Council’s criminal law deliberations. So, for three years already, the Commission, the presidency and the Council of Ministers have been looking at what they should be doing with the criminal law provisions and how they should affect us. We in this country are indeed protected by our opt-ins, but we have to bear in mind that once we have opted in, we are subject to qualified majority vote. So it is a once-and-for-all decision—we say, “Yes, we are going into that,” but then the people of this country, as hon. Friends have said, have no further ability to change that law; it becomes a matter bound in to European Union competence.
Let us look, as some of my hon. Friends already have, at the ambition of the European Commission in this area, at what it thinks more common criminal law will do, and how broad it is in its definition of the criminal law. We hear from the Front-Bench spokesmen that common criminal law will be used in rare cases, for important crimes. That is not actually what the European Commission seems to say. Page 11 of the package of documents says:
“EU criminal law fosters the confidence of citizens in using their right to free movement and to buy goods or services from providers from other Member States through a more effective fight against crime and the adoption of minimum standards for procedural rights in criminal proceedings as well as for victims of crime.”
That sentence—that bullet point—from the European Commission covers an incredibly wide set of crimes. They could be anything to do with the free movement of people, or the provision of services throughout the European Union. It then provides for minimum standards of procedure. That affects all sorts of basic points of the criminal law in this country. Will the procedure allow for trial by jury? It does not establish that. Does the procedure outlaw double jeopardy, which we basically still protect our citizens—our subjects—against? It does not say that. It says that it is aiming for these
“minimum standards for procedural rights”
and the rights “for victims of crime.”
The European Commission goes on to say:
“Common rules strengthen mutual trust among the judiciaries and law enforcement authorities of the Member States. This facilitates the mutual recognition of judicial measures as national authorities feel more comfortable recognising decisions taken in another Member State if the definitions of the underlying criminal offences are compatible.”
That means that we have to align our laws with other member states in the European Union. There may not be an immediate proposal to do that, but it is what the European Commission has in its documentation, it is what it wishes to do, and we know from experience that what the European Commission starts out with often comes to be the case.
Who can forget that wonderful moment when Lady Thatcher stood at the Dispatch Box and there were three proposals from Mr Delors, and Margaret Thatcher said “No! No! No!”? Each one of those three has now become an established part of the European family that we know and love.
What is the time scale? That again is set out by the European Commission in its package of documents. Page 18 says that it has a
“vision for a coherent and consistent EU Criminal Policy”
by 2020. So the European Commission wants us, in eight years, to have established that uniformity.
As we have discussed, the proposal includes things that are open to wide interpretation, such as computer crimes. Even an alarm clock is now computer-controlled, so even if you were to steal an alarm clock—[Interruption.] Of course, you would not steal an alarm clock, Madam Deputy Speaker, but if some brigand were to do so, that might be deemed to be a computer crime. The description is therefore set wide, as it is for
“serious infringements of road transport rules”.
If someone were to park on a red route, at what point would it be a matter for the European Union?
The Commission has set out an extremely ambitious communication, which I am glad that the House is debating. It knows clearly its route of travel and where it wants to end up, which is, ultimately, a single European state. No British Government have ever been in favour of that, yet every British Government since 1972 have ceded more powers to the European Union to create a superstate. It is important to debate the proposal at an early stage of its formation so that the Government can be robust and aware of the problem, and so that they can refuse opt-ins that, step by step, lead to the ever-closer union that has been the EU’s policy since it was founded.
Mr Blunt
I shall try to respond to the contributions made in the debate, the tone of which has been reasonably consistent, certainly among my hon. Friends sitting behind me. I had rather hoped that the tone of my opening remarks had made it clear that the Government were in a similar place on the issue as the European Scrutiny Committee.
The hon. Member for Hammersmith (Mr Slaughter) gave us the benefit of seven minutes’ consensus during which he managed to avoid expressing an opinion on Euro- crimes and the use of language in the document, which the Government, like the European Scrutiny Committee, feel is unhelpful.
I was grateful to my hon. Friend the Member for Stone (Mr Cash) for notifying me that he could not be in the Chamber for the conclusion of the debate, because he is chairing a Committee of the House. I quite understand why he cannot be here. I think it was a slip of the tongue on his part when he put “breathtaking complacency” and “Government” in the same sentence; I was grateful that he then corrected himself to make it clear that he was referring to the Opposition and the hon. Member for Hammersmith. My hon. Friend subsequently talked about the Government’s support for his Committee’s position and the tone of my remarks about Euro-crimes.
Much of the tone of my hon. Friend’s speech will have been familiar to hon. Members. Indeed, my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), the Chair of the Justice Committee, asked whether he was trying to conjure up a spectre. I sometimes think that it is not so much a spectre that is conjured up in European Union debates as a dementor, given that there is a chill in the air and hon. Members who receive a dementor’s kiss have the soul sucked out of them and find themselves hooked on this issue in a conceivably unhealthy way. However, my hon. Friend the Member for Stone has consistently and properly pointed out the possible ramifications of such communications from the European Union, and Conservative Members returned to that theme time and again. I therefore want to reinforce the fact that a solid defence of our position underpins the debate and that we are equipped with the scepticism that my hon. Friend the Member for Stone and other hon. Friends expressed.
The way in which the right hon. Member for Leicester East (Keith Vaz), the Chair of the Home Affairs Committee, began his speech was evidence to support the truth of the Matthew Parris theory that Parliament is full of schoolboys and schoolgirls who were bullied during their time at school and then take extended revenge on their school mates. I will leave others to draw their own conclusions on where the “Slaughter, Vaz” quip to which he treated us puts the hon. Member for Hammersmith on the scale of bullies or the bullied.
The right hon. Member for Leicester East confirmed the point made by my right hon. Friend the Member for Berwick-upon-Tweed that no one is calling for a comprehensive system of European criminal law, despite what can be adduced from the Commission’s communication. Given that the right hon. Member for Leicester East is a former Europe Minister, I might have anticipated that he would take the position that he did. On human trafficking, it is clear that the point is around the need to address structures and systems, but we have also opted into law in that area. I take his point about data and assure him that data protection is being considered in the coming days by the European Union and the Council of Europe.
My right hon. Friend the Member for Berwick-upon-Tweed reminded us that we have a duty to keep up with cross-border crime and the development of new crime patterns. We have chosen to opt into various measures under the Lisbon framework, so that we keep pace on crime, as appropriate. He drew attention to what we face in 2014 with the 133 measures that were adopted pre-Lisbon. Of course, we will not make any premature decisions and we will consider carefully the practical implications of all the options. The Government are committed to holding a vote in both Houses before they make a formal decision. We will conduct further consultation on the arrangements for the vote, especially with the European Scrutiny Committee, the Justice Committee and the Committees of both Houses that consider home affairs. We will make a formal announcement on the process in due course. My hon. Friend the Member for Esher and Walton (Mr Raab) was also clear about the substance of the decision that we will face in 2014.
I listened carefully to the suggestion made by my right hon. Friend the Member for Berwick-upon-Tweed about UKRep engaging with Select Committees to give them notice of any European Commission business coming down the track in which they might like to take an interest. One must tread carefully with such things, given the question of what is the prerogative of the Executive and what is that of Parliament. We would not want to get to a position at which it was seen that the Executive were seeking formally to engage parliamentary bodies on their behalf. His Committee’s role is to hold my Department to account, and it is for Parliament as a whole to hold the Government to account, so I will reflect on his suggestion and invite my ministerial colleagues in the Foreign Office to read his remarks and consider whether there could be a satisfactory way forward.
My hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) reminded us, in his usual stentorian tones, about the dangers of the intrusion by others into a mature legal system. Hon. Members will have noted his learned warning about the effect of opt-ins. He made it clear that he shared the general approach taken by my hon. Friend the Member for Stone and set out the underlying caution that we should always exercise on such matters. I hope that he understood from my opening remarks that that is precisely what we do. I believe the present arrangements enable us to do that, not least the oversight exercised by this House and the European Scrutiny Committee.
As well as making points about the 2014 decision, my hon. Friend the Member for Esher and Walton reinforced the general remarks made by my hon. and learned Friend the Member for Torridge and West Devon and asked about our current position on the European arrest warrant. The EAW was the subject of a review by Sir Scott Baker, to which the Government will respond in due course.
In tone, the remarks made by my hon. Friend the Member for Dover (Charlie Elphicke) were similar to those of other hon. Friends, but I thought that the intervention made my hon. Friend the Member for Loughborough (Nicky Morgan) made quite clear the case, which he acknowledged, that we need to take a case-by-case approach, as the Government have pledged to do. As the hon. Member for Dover, he commended the co-operation on drugs trafficking, but there is a basic problem with the proposition he advanced: either we will find measures, on a case-by-case basis, where it is appropriate and in the interests of the UK to co-operate at European Union level, and we will proceed on that basis as we do now; or he and others will present that to the House as a cynical list establishing the principle of where we should co-operate, in order to open up the possibility of our being compelled to co-operate on matters where we are not compelled to do so. In his presentation of the process, however, my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) neglected to remind the House of the existence of the emergency brake. If all else fails—if we have opted in, taken part in the discussions and voted but have been outvoted on certain measures—and the matter is serious enough to constitute a fundamental assault on our criminal jurisdiction, we can exercise the emergency brake under the Lisbon provisions and thereby establish an opt-out.
I thank the House for this debate. It is clear that the Government and the European Scrutiny Committee are of the same view: we consider that European legislation in the field of criminal law should be contemplated only as the last resort and only where action at the European level is absolutely necessary. We also clearly agree that European Union criminal law proposals should have regard to the principles of subsidiarity, proportionality and, importantly, necessity based on clear evidence. Those principles are vital. The European Commission’s communication makes it clear that, although it seeks to develop a consistent approach to the use of criminal law, those principles continue to form part of the considerations even of the Commission—to echo the tone of some of the speeches made today.
The Government will continue to examine the content of European Union criminal law proposals and our participation in them on a case-by-case basis, entirely in line with the coalition agreement. In line with our commitments to Parliament, we shall also continue to engage with the European Scrutiny Committee on any EU criminal law proposals, as they come forward. I commend the motion to the House.
Question put and agreed to.
Resolved,
That this House takes note of European Union Document No. 14613/11, relating to a Commission Communication, Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law; agrees that the primary focus of EU criminal law should be tackling serious crime with a cross-border dimension; and further agrees that the general principles of subsidiarity, proportionality and necessity based on clear evidence must be respected when deciding whether to propose criminal sanctions to ensure the effective enforcement of EU policies.