20:29 - The House divided: - Ayes: 237 / Noes: 350 - Question accordingly negatived.
20:43 - The House divided: - Ayes: 341 / Noes: 244 - Question accordingly agreed to.
The Secretary of State for the Home Department (Mrs Theresa May)
I beg to move,
That this House believes that the UK should opt out of all EU police and criminal justice measures adopted before December 2009 and seek to rejoin measures where it is in the national interest to do so and invites the European Scrutiny Committee, the Home Affairs Select Committee and the Justice Select Committee to submit relevant reports before the end of October, before the Government opens formal discussions with the Commission, Council and other Member States on the set of measures in Command Paper 8671, prior to the Government’s formal application to rejoin measures in accordance with Article10(5) of Protocol 36 to the TFEU.
For 40 years, ever since the United Kingdom entered what was then just a Common Market, power flowed in one direction—from this country and this place, which ought to be sovereign but in practice is often not, to the institutions of the European Union. Since the referendum in 1975, not once was the consent of the British people sought or given for a series of treaties that gave more and more power to Europe.
The Government’s decision, which I announced in a statement last week, to opt out of around 130 European justice and home affairs measures, before seeking to opt back into those measures that we believe work in the national interest, will be the first time in the history of our membership of the European Union that we have taken such a set of powers back from Brussels. Let us be clear that, however complicated the issues we are about to debate—I will soon come to those issues—we are first and foremost talking about bringing powers back home. That is something—
Jacob Rees-Mogg (North East Somerset) (Con)
Will the Home Secretary give way?
Mrs May
Will my hon. Friend allow me to finish my sentence? He is quick off the mark, as he always is on these matters.
That is something that should be celebrated by anybody who cares about national sovereignty, democracy and the role of this place in making the laws of our country.
Jacob Rees-Mogg
I am very grateful to my right hon. Friend for giving way to me so early on. Is it not unfortunately the case that 43 of the measures are, in effect, defunct anyway, that the ones we opt back into come under the European Court of Justice, and that that is a much bigger give-away of power than the relatively minor removal of powers that is happening under the opt-out?
Mrs May
I am sure that I do not need to remind my hon. Friend, given his attention to detail in these matters, that were we not voting and deciding to opt out of the number of measures we are proposing to opt out of, we would find ourselves subject to all these measures, all of which would be subject to the European Court of Justice.
Let me be clear: this should not be a one-off event before usual service resumes. This Government have made sure that never again will a Prime Minister sign away sovereignty in a European treaty without a referendum. We in the Conservative party have made clear our intent to negotiate a new relationship with the European Union which will then be put to the British people in an in/out referendum. Of course, it is too early to be specific about the changes we will seek in that negotiation, but I am clear that the decision to opt out of these justice and home affairs measures in 2014 does not leave us with the ideal settlement—far from it. Significant problems still need to be addressed, such as the interpretation and enforcement of free movement rules, the creative way in which measures agreed by nation states are subsequently interpreted, and the jurisdiction of the European Court of Justice.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
Will my right hon. Friend give way?
Keith Vaz
I am most grateful to the Home Secretary. May I thank her for engaging in a fruitful discussion about the motion with me and the Chairman of the European Scrutiny Committee? The Chairman of the Liaison Committee was abroad, so he could not be part of those discussions. Will the Home Secretary confirm that she really needs a vote of the House today in order to start her negotiations? Would it not be far better to have the scrutiny of the Select Committees, for which she allows until 31 October in her motion, and then have a vote that gives her the mandate she seeks?
Mrs May
The point is that this is a two-stage process. It has been made clear to us by the European Commission that it will not start the discussions about certain aspects of our proposals—for example, looking at transitional arrangements—until it is clear that the UK intends to opt out. That is why it is necessary for the Government to exercise the opt-out. In a little while, I will explain the commitments that were made to Parliament, which we are indeed abiding by today, but there will be a second opportunity for Parliament to vote on the number and content of any measures that we seek to opt into. The Government have given their current indication of what we think those measures should be. As our motion says, we look forward to the scrutiny by the European Scrutiny Committee and the two other Select Committees, which will inform our judgment before we enter formal negotiations.
Mark Reckless (Rochester and Strood) (Con)
Will the Home Secretary confirm that if the House votes tonight for her motion she will immediately notify the European Commission that this country has decided to use the block opt-out?
Mr Jenkin
I thank my right hon. Friend, who is being very generous. I welcome her words about the importance of this House maintaining control over these matters, but we lose control over them in perpetuity if we opt back into any of the measures. That therefore represents a permanent transfer of sovereignty that the current situation does not represent. Do I take it from her comments on the renegotiation that what the coalition agrees to opt back into would not be subject to renegotiation by a future Conservative Government? It would seem rather incredible to believe that a British Prime Minister could opt into something in one Parliament and then in the next Parliament go back and say, “No, we want to opt out again after all.”
Mrs May
The whole point about the renegotiation that we as the Conservative party have announced we will be undertaking is that we achieve a new settlement in terms of the relationship between the United Kingdom and the European Union. We have our views on the future of the European Union as well. Those views have been very ably expressed by the Prime Minister in speeches that he has made. As part of that renegotiation, it would be odd indeed, and colleagues would question it, if the Conservative party, as part of its commitment, said, “We will renegotiate, but not these bits.” We will renegotiate the United Kingdom’s relationship with the European Union. I should add, in response to my hon. Friend the Member for Rochester and Strood (Mark Reckless), who asked about the opt-out, that the House of Lords will also debate this matter on Monday.
Mrs May
My hon. Friend may find it rather strange that we have to opt out and then try to opt back in, but that is precisely because of the system that was negotiated by the previous Labour Government. It is not possible for us to opt out of every measure apart from, for example, the European arrest warrant; as I will explain, we have to opt out of everything and then choose to opt into some measures.
Dr Julian Huppert (Cambridge) (LD)
The Home Secretary is being extremely generous in giving way. Those of us who are keen to see some of the opt-ins are very concerned about the time gap between the opt-out and the opt-in. Will she assure us that it will be as brief as possible, particularly so that, for example, Rob Wainwright, the director of Europol, does not accidentally lose his job because we are out for a few minutes?
Mrs May
My hon. Friend raises a very important and valid point. It is our intention––and we expect to be able––to work with the European Commission in order to ensure that the transition period for any measures that we want to opt back into is as smooth and as short as possible. It is clear that the Commission will not start properly to look at those transition arrangements until we are clear that we are going to opt out and then try to opt back in.
Mr John Redwood (Wokingham) (Con)
An opt-out from all the measures would be very popular on the Conservative side in this House and outside. That is what we want to do, because we do not trust Europe to boss us around and take our democracy from us. Why not vote for the opt-out today and then vote on any possible opt-back-ins after the consultation and consideration at a later day?
Mr Cash
I am most grateful to my right hon. Friend for giving way. Her response to the hon. Member for Cambridge (Dr Huppert) seemed to suggest that the speed with which he advocates the sorting out of the opt-ins might truncate the amount of scrutiny that is needed. I thought, as a result of the amendment tabled by me and other Select Committee Chairmen to the original motion, we had established that progress had been made on that point. Will my right hon. Friend make the situation clear?
Mrs May
I am happy to make it clear and sorry if my remarks to my hon. Friend the Member for Cambridge led my hon. Friend the Member for Stone (Mr Cash) to interpret my response in that way, because that was certainly not my intention. I will specify more clearly the process as I see it in due course.
Mrs May
I have been extremely generous to Members. I may be prepared to take some interventions later in my speech, but I want to make some progress.
Before I took a number of interventions, I mentioned the European Court of Justice. I also want to refer to the European Court of Human Rights, which contradicts laws passed by our Parliament, overrules judgments made by our courts, and interprets the articles of the original convention on human rights in an expansionist way. That is totally unacceptable. I therefore believe that we also have to consider very carefully this country’s relationship with Strasbourg as well as our relationship with Brussels. Indeed, my right hon. Friend the Justice Secretary is working on that particular issue.
Before I turn to the policy detail of the 2014 decision, I want to address the role of Parliament in making it. I know hon. Members have had some concerns about this, and I hope I can provide some reassurance, including to my hon. Friend the Member for Stone, the Chairman of the European Scrutiny Committee, about the process we will undertake.
Under the terms of the Lisbon treaty, which the previous Government signed in 2007, the United Kingdom has until 31 May 2014 to decide whether to opt out of about 130 justice and home affairs measures covered by the treaty. If we do, the opt-out will come into effect on 1 December 2014. As I have indicated in response to earlier interventions, it is not possible to opt out of individual measures. The opt-out must be exercised en masse, after which we may seek to rejoin any measures in which we would like to participate. This would be subject to negotiation with the European Commission and other member states. As I confirmed in my statement last week, the Government intend to exercise the opt-out. We then plan to seek to rejoin a limited set of measures that underpin practical co-operation in the fight against crime.
The Government have always said that we will give Parliament time to scrutinise that decision properly. In his statement in January 2011—
Pete Wishart (Perth and North Perthshire) (SNP)
Will the Home Secretary give way?
Mrs May
I have not explained the point yet, so I suggest that the hon. Gentleman waits to hear what I am going to say.
In his statement in January 2011, the Minister for Europe, my right hon. Friend the Member for Aylesbury (Mr Lidington) said:
“Parliament should have the right to give its view on a decision of such importance. The Government therefore commit to a vote in both Houses of Parliament before they make a formal decision on whether they wish to opt out.”—[Official Report, 20 January 2011; Vol. 521, c. 51WS.]
Today’s vote is the fulfilment of that commitment. It is, as the wording of the motion makes clear, the vote on whether the Government should exercise the right to opt out. The decision about which measures the UK should seek to rejoin is separate, so there will be a second, separate vote on that matter. We have published that set of measures, along with explanatory memorandums, in Command Paper 8671, last week.
Wayne David
The Home Secretary quoted the Minister for Europe’s statement of January 2011, but she did not mention that he went on to say:
“The Government will conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees”.—[Official Report, 20 January 2011; Vol. 521, c. 51WS.]
Will she tell us whether those discussions took place, as promised two years ago?
Mrs May
We are going to ensure, as the motion suggests, that the Scrutiny Committee and the two Select Committees have the opportunity properly to scrutinise the set of measures, and there will be two votes in the House. We have always been clear that Parliament and its Committees should have adequate time to scrutinise the set of measures. That work does not need to be done before today’s vote, because today’s vote is about the decision to exercise the opt-out.
Sir Alan Beith
I am grateful to the right hon. Lady. I can confirm that I was consulted about the voting arrangements, but that was only last week and it took place by telephone because I was out of the country. That consultation took place only a week ago. What happened to the commitment that, by February this year, the Committees would be given explanatory memorandums on which to base their work on the opt-ins?
Mrs May
I have already said to the right hon. Gentleman and to others who have raised the issue of the explanatory memorandums that I am sorry that it was not possible to produce them at an earlier date. We have looked at the time available for scrutiny by the Select Committees and the Scrutiny Committee, and for the second vote on the potential measures that we might choose to opt back into. The explanatory memorandums were made available last week, and they are available to the Committees in their consideration of any measures that the Government should opt into or seek to rejoin. That information has now been made available and I hope that it will be able to inform the Committees’ considerations.
Andrew Percy (Brigg and Goole) (Con)
I congratulate my right hon. Friend on asking us to vote on this opt-out today, but I am a little confused about the question of opting back in. We on this side do not like block votes, so will we be able to vote on each individual measure when we decide whether to opt back into them?
Mrs May
The decision on the form that that vote will take has not yet been made, but I am well aware of the views of some Members on that matter.
I said in my statement last week:
“Following our discussions in Europe, another vote will be held on the final list of measures that the UK will formally apply to rejoin.”—[Official Report, 9 July 2013; Vol. 566, c. 177.]
But, to make this commitment absolutely crystal clear, and to reassure hon. Members who were worried about the role of the Committees in scrutinising the Government’s plans to rejoin the selected measures, we have listened to the points that were raised—I was grateful to the Chairmen of the European Scrutiny Committee and the Home Affairs Select Committee for the conversations that I had with them; the Chairman of the Justice Committee was indeed abroad—and we have tabled a new motion for today’s debate. That new motion explicitly invites the European Scrutiny Committee and the Home Affairs and Justice Committees to submit reports before the end of October, in advance of the Government opening formal discussions with the European Commission and other member states. I therefore hope the new motion will receive wide support from hon. Members across the House.
Mr Davidson
I am grateful to the Home Secretary for giving way to a Scottish Member. To clarify, if reports are being produced for the Committees, will those Committees be asked to produce individual responses? If they produce individual responses, does it not make sense to have individual votes on particular items, rather than simply taking them in a lump?
Stephen Phillips (Sleaford and North Hykeham) (Con)
My right hon. Friend has set out the timetable, but under the relevant paragraph of the protocol there is no opt-in to those measures that the United Kingdom wants to opt into until 2 December 2014. Indeed, there is no indication that the Commission has to negotiate before that date because of the way the article is framed. Has the Commission indicated that it will negotiate with the UK Government on those measures we wish to opt back into?
Mrs May
The Commission is clear that any work that would be undertaken would take place before that date, but it wants to be clear that the UK Government have decided to opt out. Without that it is not possible to have proper discussions on proposals to opt back in.
A vote today on the decision to exercise the opt-out will show other European nations that the Government have the support of Parliament in exercising the opt-out, it will give the Government a strong hand in our negotiations with the EU, and it will show that we are serious about bringing powers back home. It will allow us to start informal discussions with the Commission and other member states, but no formal negotiations will begin until the Committees have done their work. The House will, of course, vote again on the final list of measures that we will formally apply to opt back into.
Pete Wishart
I am grateful to the right hon. Lady for finally giving way to a Member from a minority party—the hon. Member for Belfast East (Naomi Long) is waiting too. The Home Secretary has said on several occasions that she is speaking on behalf of the whole United Kingdom when it comes to these measures, but she will know that there is great unhappiness in the Scottish Government, Police Scotland, and the whole legal profession about this opt-out. Why was there so little consultation with the Scottish Government, why did they know nothing about this until last week, and why is she indulging in such UKIP-ery?
Mrs May
It is not the case that the Scottish Government knew nothing about this until last week. The Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), visited Scotland in January and met the Justice Secretary, Kenny MacAskill, and ACPO Scotland. He also visited Northern Ireland and met the Justice Minister, David Ford, to discuss these issues in relation to Northern Ireland.
Naomi Long
Will the Home Secretary confirm, as she failed to do last week when I questioned her on this matter, that the Justice Minister in Northern Ireland is not reassured by what he has heard in discussions with the Home Office about the operation of the European arrest warrant?
Mrs May
As I believe I said last week during my statement in response to a similar question from the hon. Lady, I am aware that concern has been expressed about the European arrest warrant because of the importance—I intend to refer to this a little later—of the operation of that arrest warrant between the United Kingdom, and particularly between Northern Ireland and the Republic of Ireland. A lot of concern expressed previously was when it was thought that the Government would not propose to try to opt back into the European arrest warrant. Of course we must have further discussions with relevant Ministers in Northern Ireland on this matter.
I turn now to the substance of the debate. The Government will exercise the opt-out, but as I announced last week and have said today, we propose to seek to opt back into 35 measures where we believe it is in the national interest to participate. My right hon. Friends the Secretary of State for Justice, the Minister for Government Policy and the Minister for Europe and I have listened to the views of the law enforcement agencies, have considered the civil liberties of British subjects and have been mindful of how the European institutions, particularly the Court of Justice, operate, and to borrow a phrase coined by my hon. Friend the Member for Esher and Walton (Mr Raab), who has particular knowledge of and expertise in these matters, we have pursued a policy of seeking “co-operation not control”—for example, it is not for Europe to impose minimum standards on our police and criminal justice system. There are therefore more than 20 minimum standards measures that we will not seek to rejoin.
Likewise, we should not pretend that all these measures facilitate cross-border co-operation; they do not. Where they do not—as with the measure on counterfeiting, for example—we will not seek to opt back in. Furthermore, the last Government signed us up to the Prum decisions on the identification of DNA, fingerprint and vehicle registration documents, but then did nothing to implement them. Rejoining now would leave the UK open to a fine that would run into millions of pounds, so we will not rejoin those measures. Lastly, I want to make it absolutely clear that we will do nothing that leads to the establishment of a European public prosecutor or anything akin to a European police force.
Mr James Clappison (Hertsmere) (Con)
I welcome the points that my right hon. Friend has just made. Will she bear it in mind that this is part of the EU’s overall ambition to establish an area of freedom, security and justice in which the European institutions, not this House, take the decisions, and European Courts, not our courts, take the legal decisions?
Mrs May
My hon. Friend is right to be concerned about the indications of some of the intentions about the future of Europe. We have made it clear—it is in our coalition agreement—that we will not support anything that, for example, establishes a European public prosecutor, which we do not believe is the right way to go. Furthermore, on the new Europol regulation, which I will mention later and on which we will have a further debate tonight led by the security Minister, the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), we do not wish, as I said, to do anything that leads to anything akin to a European police force.
We have concluded, however, that some of the measures in the opt-out decision help us to tackle crime and keep our country safe, and we should therefore seek to opt back into them. We believe that there are 35 such measures, as I indicated last week. I will deal first with the most controversial of the measures we plan to opt back into: the European arrest warrant. It is a controversial measure because, although we clearly need strong extradition arrangements in place to see justice done, when extradition arrangements are wrong, they can have a detrimental effect on our civil liberties. Hon Members, especially my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), will remember that last year I stopped the extradition of Gary McKinnon and then secured changes to the operation of our extradition arrangements with the United States.
I believe that the operation of the European arrest warrant is in similar need of change, which is why I propose new safeguards to increase the protection offered to those wanted for extradition through the European arrest warrant. First, as I indicated earlier, the Government have tabled amendments to the Anti-social Behaviour, Crime and Policing Bill, which is currently in Committee in this House, to ensure that an arrest warrant can be refused for minor crimes. Secondly, we will work with other member states to enforce their fines and ensure that, where possible, an investigation order is used instead of an arrest warrant, meaning that police forces and prosecutors would share evidence and information without requiring the extradition of a suspect at the investigative stage.
Thirdly, I will amend extradition legislation to ensure that people in the UK can only be extradited under the European arrest warrant when the requesting member state has already made a decision to charge and a decision to try, unless that person’s presence is required in that jurisdiction for those decisions to be made. Fourthly, I will amend our law to make it clear that in cases where part of the alleged conduct took place in the UK and where that conduct is not criminal here, the judge must refuse extradition for that conduct. Fifthly, I want to ensure that people who consent to extradition do not lose their right not to be prosecuted for other offences.
Sixthly, we propose that the prisoner transfer framework decision should be used to its fullest extent so that British subjects extradited and convicted can be returned to serve their sentence here. Seventhly, where a British subject has been convicted and sentenced abroad—for example, in their absence—and is the subject of an arrest warrant, we will ask, with their permission, for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. Eighthly, I plan either to allow the temporary transfer of a consenting person so that they can be interviewed by the issuing state’s authorities or to allow them to do this through means such as video-conferencing in the UK. Where the suspect is innocent, this should lead to the extradition request being withdrawn.
Those are all changes that can be made in our own law, and which could have been made at any time by the Labour party.
Sir Gerald Howarth (Aldershot) (Con)
I am most grateful to my right hon. Friend and I apologise for not being here at the outset. The safeguards she mentions, which we intend to enshrine in English law, are welcome. However, the European arrest warrant will become subject to the European Court of Justice. What assurances can she give the House that the safeguards will not be challengeable by the European Court of Justice, and therefore annulled?
Mrs May
My hon. Friend is right that if we opt back into the European arrest warrant it will be subject to the European Court of Justice. However, I suggest he look at other EU countries that already have similar measures, certainly in terms of proportionality, and operate them without any question of whether it is right for them to be so operated. I believe it is possible for us to put these measures into our law and do so in a way that provides extra safeguards for British citizens. Many of the changes reflect the policies of other member states, which means we can have confidence in their durability. Co-operation across borders in the fight against crime is vital, but it must not come at the expense of the civil liberties of British subjects. I believe that the Government’s programme of reform will get the balance right.
Nick Herbert (Arundel and South Downs) (Con)
Will my right hon. Friend give way?
Mrs May
I will make just a little more progress and then give way to my right hon. Friend.
It is important to remember that we need robust extradition arrangements in place. Since 2009 alone, the arrest warrant has been used to extradite from the United Kingdom 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspected child sex offenders, 27 suspected rapists and 44 suspected murderers were extradited back to Britain to face charges. A number of those suspects would probably never have been extradited back to Britain without the arrest warrant.
Nick Herbert
Hon. Members are understandably concerned about the constitutional implications of the changes, but I support my right hon. Friend’s stance. Is it not important to reflect on the implications of not participating in the European arrest warrant? Having separate arrangements with all 28 countries of the EU would tie the hands of our own law enforcement agencies and make it harder for them to bring potentially serious criminals to justice, increasing cost and delay. Should we not focus on the benefits of some multinational co-operation, as well as some of the risks?
Mrs May
My right hon. Friend is absolutely right. He refers to delay, and there are very good examples of the EAW enabling speedier extradition. Hussain Osman, one of the failed 21/7 bombers from 2005, was extradited back to this country from Italy in less than eight weeks. As I indicated earlier in response to an intervention, the authorities in Northern Ireland tell us that the arrest warrant, together with other measures, plays an important role in underpinning their work with the Republic of Ireland in tackling the constant threat of terrorism. My right hon. Friend is absolutely right that those who say we should not be taking these measures and should not participate in the arrest warrant—I recognise and respect that some hon. Members are against our participation in the arrest warrant—need to say what they would do to secure the return to Britain of terrorist suspects who deserve to face justice, or to prevent foreign criminals evading justice by hiding in Britain. As long as we have adequate safeguards to protect the civil liberties of British subjects, we need robust extradition arrangements with other European countries, and that is what the arrest warrant gives us.
Mr Andrew Turner (Isle of Wight) (Con)
Will my right hon. Friend assist me by explaining Norway and Switzerland’s position on the current arrangements? Why is this help not necessary for Iceland, but necessary for Ireland?
Mrs May
Of course some countries negotiate arrangements with other countries—indeed, we have individual arrangements with countries outside the EU —but if we had to negotiate separate bilateral agreements with all 27 other member states, why does my hon. Friend think that they would work any better than the arrest warrant? Would that suddenly improve the level of justice in certain countries or speed up the system? On the contrary; I think it would be likely to slow it down. As my right hon. Friend the Member for Arundel and South Downs (Nick Herbert) said, all sorts of problems with speed and cost could ensue, and we would risk being unable to bring foreign nationals back here to the United Kingdom.
Wayne David
The Home Secretary has outlined the changes to the European arrest warrant that she would like to make unilaterally, but what changes would she like to make at a European level?
Mrs May
I have been discussing with other member states the operation of the European arrest warrant and the possibility of some changes being made to it. Some member states are looking at the way they operate the European arrest warrant and may change some of their legislation to make it better for us in terms of proportionality. We are talking to other member states that might also be taking powers to introduce proportionality in a way that reduces the number of trivial crimes for which European arrest warrants are issued into the United Kingdom.
Steve Baker (Wycombe) (Con)
A few moments ago my right hon. Friend talked about a number of serious offenders whom she said might not have been extradited were it not for the arrest warrant. As that seems to be part of her positive case for opting into the arrest warrant, can she be clear what the difference is—for those of us who are perhaps not experts in this area—between the arrest warrant and other extradition arrangements?
Mrs May
Following the introduction of the European arrest warrant, there is a clear difference between the extradition arrangements in Europe now and those that previously existed, which came under the banner of the Council of Europe. One of the key issues is the level of delay that occurs; the European arrest warrant can be exercised much more quickly. I cited the case of the failed 21/7 bomber who was extradited from Italy in eight weeks. Before the introduction of the European arrest warrant, that could have taken a considerable period of time—many months and potentially years. The ability to extradite more quickly is one of the advantages of the European arrest warrant.
Sir Richard Shepherd (Aldridge-Brownhills) (Con)
The difficulty has always been the concept of the mutual recognition of different legal systems. The assumption is that we are working on the same premises, but we are not doing that across Europe. All the evidence given to the Joint Committee on Human Rights—whose opinion I hope my right hon. Friend will ask for as well—was about the victims of the system as it works now. Why can we have mutual recognition of legal systems that many people across Europe do not think are equivalent to ours in terms of standards of justice and court procedure?
Mrs May
My hon. Friend raises an important point. It is exactly that issue in a number of areas—for example, pre-trial detention—that right hon. and hon. Members have raised as a key concern about the operation of the European arrest warrant. There are member states that have been extraditing individuals before they have properly investigated the case and before they have the evidence to charge and try them. That has often led to British citizens waiting for many months in jails abroad while the investigation took place. It is why one of the changes I wish to make to the operation of the European arrest warrant here in the UK would enable judges to discharge the extradition request if the requesting country had not taken a decision to charge and a decision to try the individual.
Mr Blunkett
I am grateful to the Home Secretary, who has been generous in taking a considerable number of interventions. I would like to reinforce her point about the time it took before the European arrest warrant. I think even the hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) would accept that the French jurisdiction was a reasonable place to which to extradite people, but will the Home Secretary confirm that before the European arrest warrant, we had one case that took nine years? With the frustrations in that case—and not only those of Ministers—and the damage it did not only to the relationship with France but to the course of justice, it was common sense to try to get a better system operating across Europe.
Mrs May
The right hon. Gentleman has put the point very well, and I am sure the whole House has listened to the example he provided. It is exactly such examples that make me think it right for us to ensure that we have a system that is better to operate. As he says, this is not only about relationships between Governments, but about the course of justice. That is why we want to ensure the more suitable, proper and swifter extradition arrangements that the EAW provides.
I said that our proposed list of measures for opting in was chosen because the measures would improve the practical fight against crime and the co-operation to achieve it. We of course await the views of the Scrutiny Committee and the Select Committees, but, for example, we want our law enforcement agencies to be able to establish joint investigation teams with colleagues in other European countries; we plan to rejoin the European supervision order, which allows British subjects to be bailed back to the UK rather than spend months and months abroad awaiting trial; and the second-generation Schengen information system—a new way of sharing law enforcement alerts throughout Europe—has the capacity to bring significant savings to our criminal justice system, as well as make it easier to identify foreign criminals. Again, this is just a question of practical co-operation, so the Government plan to join the database. I hope the House will see from the list of measures that the vast majority of what the Government propose to opt back into is uncontroversial, and based on the very sensible principle of “co-operation not control”.
I want to reiterate the Government’s position on Europol. As I mentioned earlier, the House will debate its future later tonight. The Government believe that Europol does excellent work under its British director, Rob Wainwright, which is why we propose to rejoin Europol in its existing form as part of the 2014 decision. There is a separate decision to be taken about Europol, and tonight’s debate will not be about the organisation in its current form but in its proposed future form. As things stand, the Commission proposes to change Europol’s governance and powers, potentially allowing it to direct national police forces and requiring us to share sensitive intelligence crucial to our national security. I believe that would be entirely unacceptable. These powers are unnecessary and would undermine our way of policing—and Europol has not even asked for them. The motive of the Commission appears to be nothing more than state-building. That is why we will not opt into the new Europol regulation and will never do so until those concerns have been put beyond doubt.
Some of my hon. Friends have been keen for me to address the question of the jurisdiction of the European Court of Justice. I have mentioned it already, but let me look at the issue once again. Between 1995 and the end of November 2009, 136 measures in the field of police and criminal justice were adopted in Brussels under the so-called third pillar. This meant that they were not the usual EU Acts and were not subject to either Commission enforcement powers or the full jurisdiction of the European Court of Justice. As a result, we could not be told by others that we had not implemented things properly and we could not be fined millions of pounds as a result. There were no European Court rulings that bound us, and we had a veto in negotiations.
When the last Government signed the Lisbon treaty, they changed the constitutional basis of the European Union, giving more powers over police and criminal justice matters to European institutions, and removing our veto in police and criminal justice. Now, at the end of a five-year transitional period on 1 December 2014, these pre-Lisbon measures become subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice.
In fact, the whole justice and home affairs structure since Lisbon takes too much control away from elected national Governments. The Commission or the Council propose a measure, and the UK has the right to decide not to opt in, but if we decide that the measure is in the national interest and we do opt in, we are subject not only to qualified majority voting in the Council but to co-legislation rules in which the European Parliament is considered to be an equal to the Council of Ministers. Elected national Governments are sidelined—and that is before we even consider the role of the European Court of Justice in interpreting the measure once it becomes binding.
Mark Reckless
Is the Home Secretary aware of the European Union Act 2011 in the context of what is required for a referendum? Section 4(1)(i) refers to
“the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom”;
while (j) refers to
“the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom”.
Surely an opt-in to the various 35 measures will do that and should trigger a referendum.
Mrs May
Let me give my hon. Friend the answer that I gave when the matter was last raised with me. I do not believe that opting back into these measures would trigger a referendum under the powers that the Government have. However, I think Members should welcome the Government’s statement that no future United Kingdom Government will sign a treaty unless a suitable vote is held among the British people.
The issues involving justice and home affairs to which I referred earlier are being considered in the Government’s “balance of competences” review. Undoubtedly the jurisdiction of the European Court of Justice will need to be considered when, after the election, a future Conservative Government renegotiate Britain’s relationship with the European Union; but the choice that is before us now is binary. We are a coalition Government with no mandate to seek a renegotiation of our relationship with Europe. We must make a choice about whether, having exercised our right to opt out of these measures, we should seek to opt back into any of them—knowing that we would be subject to the junction of the European Court of Justice—if we think that they are in the national interest.
I acknowledge the risks involved in being subject to the European Court, but when it comes to the arrest warrant, I am also aware of the very significant risks of having no framework within which we can extradite criminals to and from Britain. Let me repeat that anyone who says that ECJ jurisdiction is too high a price must say how they would cope without that extradition framework.
It would be remiss of me to participate in the debate without highlighting the absurdity of the position of Labour Members. They have attacked our decision to exercise the opt-out, but it was the last Government who negotiated the opt-out in the first place. Their amendment demands that we opt into various specific measures, but the former Home Secretary the right hon. Member for Kingston upon Hull West and Hessle (Alan Johnson) admits that the reason for our having to opt out of all these measures en masse is the failure of Labour’s negotiating strategy.
Labour Members now admit that the arrest warrant is in need of reform, but they did not do a thing to change its operation when they were in office. They question our negotiating strategy, but it was they who did not just sign us up to the Lisbon treaty but wanted to sign the constitutional treaty that went before it. They imply that somehow the Government are not tough on crime, but our police reforms are working, and crime is falling. They have no policies, no ideas, and nothing to say. They are completely and utterly irrelevant.
Let me end as I began, by reminding the House what this debate is about. It is about the fact that, for the first time in 40 years, a British Government are bringing powers back from Brussels. Of course we should not stop there, and, like many members of my party, I am impatient for more. That is one reason why it is so important for us to have a Conservative majority Government at the next election. Even as a coalition, however, this Government have delivered the first ever cut in a European budget, have vetoed a European treaty, and have put into law a clear guarantee that no more powers will pass to Europe without a referendum of the British people; and now we are bringing powers back home.
A vote in favour of the Government’s motion will send a clear signal to the Commission and the other member states that Britain is serious about bringing powers back home, and it will strengthen our negotiating position in Brussels. The House will have an opportunity in future to vote on the final list of measures that we will seek to rejoin, but a vote in favour of the motion today is a vote in favour of exercising the opt-out. I therefore call on Members on both sides of the House to support the motion, and to vote with the Government.
The Lord Chancellor and Secretary of State for Justice (Chris Grayling)
indicated assent.
Madam Deputy Speaker (Dawn Primarolo)
Surprisingly enough, there are no private conversations in the Chamber; Members are supposed to have them outside. That is not a point of order for me, in the sense that I saw no indication—and have heard no indication—of the Government’s attitude to the amendments, unless the Justice Secretary wants to correct me, although he is not obliged to.
Chris Grayling
Further to that point of order, Madam Deputy Speaker. It might be helpful to the House to say—as I was intending to in my winding-up speech, but this will stop everybody making the point all the way through the debate—that we will accept the amendment standing in the names of my hon. Friend the Member for Stone (Mr Cash), my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) and the right hon. Member for Leicester East (Keith Vaz).
Sir Alan Beith
Further to that point of order, Madam Deputy Speaker. Can I claim a reward for getting my amendment accepted before I have actually moved it?
Sir Alan Beith
There has been argument about that from two Members who devote a great deal of time to the issue and I am reluctant to become the arbiter of this argument. All we sought to secure in our capacity as Committee Chairs was that the Committees’ ability to do the job was not inhibited and could not be restricted by someone pointing to the wording and saying, “You can’t discuss that possibility. It’s outwith your reach.” What the Government had made clear all along and made clear again to me in a telephone call last week while I was away with the Justice Committee was that there is to be a second-stage process as originally envisaged, and at that stage there will be confirmation of what is at present clear Government policy as to what the list is, following consideration of the representations and views that may be put forward by any of the relevant Committees.
I do not believe that in seeking to meet the Committees’ wishes and excluding those words, the Government are seeking to change their policy. They are simply making it clear that the procedure is an open one in which Committees can put forward their representations, whether they support the list or seek variations in it.
The Minister for Immigration (Mr Mark Harper)
I confirm that that is the case, but let me be clear that what the Home Secretary said about the need for this House to take a view was that it is not a legal but a political issue. The European Commission has made it clear that it will not engage in a discussion or a negotiation until we make clear the view of the Government and this Parliament. That is what the Home Secretary said in her speech and that remains the Government’s position.
Mark Reckless
So his remarks were also very well prepared, for which I give him credit.
Earlier, the Home Secretary responded to me on the issue of whether the opt-ins under the justice and home affairs provisions—if indeed we have opt-ins now—would trigger a referendum. She shared her view that they would not, but she did not give reasons and I do not believe she spoke to the specifics of the point. The European Union Act 2011 was ably taken through the House by the Minister for Europe, whom I am delighted to see in his place—he may be able to correct or assist me, or perhaps share some of the Government’s legal insight, which has eluded me to date on this issue. Section 4(1) deals with triggers for a referendum, and paragraph (i) refers to
“the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom”.
An even clearer trigger is section 4(1)(j), which refers to
“the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom”.
It strikes me that with those opt-ins, the Commission would have the right to enforcement action, and the European Court of Justice potentially to deliver fines.
The Minister for Europe (Mr David Lidington)
My hon. Friend was right to read out those paragraphs of section 4(1) of the 2011 Act, but as its title makes clear, that section refers to “Cases where treaty or Article 48(6) decision attracts a referendum”. The decision we are debating this evening, which stems from specific provisions to the Lisbon treaty, is neither a treaty change nor an article 48(6) decision, and it therefore falls outwith the scope of section 4 of the 2011 Act.
Mark Reckless
I am not sure whether I have understood the Minister, but section 4(1) is of course subject to subsection (4), which states:
“A treaty or Article 48(6) decision does not fall within this section merely because it involves one or more of the following: the codification of practice…; the making of any provision that applies only to member States other than the United Kingdom; in the case of a treaty, the accession of a new member State.”
Subsection 4(4) does not appear to be triggered in this case.
Mr Lidington
I am sorry to intervene again on my hon. Friend, but the point I was seeking to make—I apologise if I was not sufficiently clear—was that this decision on the justice and home affairs 2014 measures is not the product of an initiative brought forward under article 48(6) of the European treaties. Article 48(6) provides for the simplified revision procedure of the European Union treaties; this is not a revision of the Lisbon treaty.
The Lord Chancellor and Secretary of State for Justice (Chris Grayling)
The hon. Member for Rhondda (Chris Bryant) talks a good talk, but this evening, as usual, it was mostly nonsense. I have not changed my views in the slightest. Indeed, today’s debate is about not handing powers to the European Court of Justice in particular, and about acting in the United Kingdom’s national interest.
Let us consider the background to the debate. Five years ago, the Labour party let this country down. It let us down in the debates about the Lisbon treaty, a treaty that I personally think was thoroughly bad for this country. It promised us a referendum, and then whipped its members through the Lobbies to vote against one. It promised us that the charter of fundamental rights would have no legal force, and then voted to give it legal force. Members will recall the unedifying episode in which the former Prime Minister was so committed to the Lisbon treaty that he had signed that he would not even turn up for the official event to mark its signing, and was smuggled in a few hours later under cover of darkness to sign when no one was looking. That is the truth of the Labour party’s approach to this whole issue.
I am clear about the fact that the Lisbon treaty paves the way for the creation of a European justice system. That system is now taking shape. A raft of new measures is emerging from Brussels, and the recent addition of a new justice scorecard creates a platform that will enable more to follow soon.
My right hon. Friend the Member for Wokingham (Mr Redwood) and many others were right to say that the jurisdiction of the European Court of Justice was a key element. The treaty extends the Court’s jurisdiction to justice and home affairs measures. In December 2014, the Court will take over the supervision of more than 130 measures agreed before the Lisbon treaty, which affect the administration of justice and the fight against crime in this country. Labour Members knew that, which is why they kicked the can down the road. It is why they put off the decision, and why they negotiated the opt-out from those 130-odd measures at some point in the future. I suppose that we should give them some credit at least for creating circumstances in which this Government have the option to decide what to do on behalf of the country, and this Parliament has the option to decide. That decision now resides on this side of the House, and we do not lack the determination or the will to do the right thing for the British people.
I have still not worked out what Labour Members think. They seemed both to oppose and support the opt-out. [Interruption.] Members say that I was not here, but where is the shadow Justice Secretary? The Opposition have had to put up a junior shadow Minister.
Tonight, we are seeking Parliament’s backing for the exercise of the get-out clause that the last Government put in place. The Lisbon treaty allows the UK two freedoms. The first is to opt in or out of any new measures the Commission brings forward, so we now only participate in new measures that are in the national interest. The second is to opt out of the policing and criminal justice measures in existence before the Lisbon treaty. Tonight’s vote is about whether this country takes up that second opt-out—nothing more, nothing less. If we do nothing, in December 2014 the ECJ will take over the ultimate supervision of every one of those more than 130 measures which affect the administration of justice and the fight against crime in this country.
My hon. Friend the Member for Rochester and Strood (Mark Reckless) set out some of the issues that transition would bring. I do not think that transfer should happen and that we should see all those 130-plus measures simply pass to the ECJ. Again, Labour could not decide at the time what it wanted to do, and it cannot decide again tonight. The lesson is that the Labour party was defeated at the last election because it was no longer fit for government, and it is now so indecisive and so uncertain that, frankly, it is barely fit to be in opposition.
So let me restate clearly to it what tonight’s vote is all about. This vote starts a process. The Government have reached a settled view that we do not want to participate in all the 130-plus measures. We do not want to be part of a European justice system, but we do want to be part of the fight against international crime. We do not want courts across Europe to be told by Brussels the minimum standards that should apply to the sentences they impose. We do not want matters that should be resolved by member states to be legislated for at a European level. We want to bring powers in those areas back to the UK.
We are clear that we must exercise this opt-out or face being subject to all those measures anyway. We have decided we do not want to follow a path that leads to a European justice system. Tonight’s vote, and the vote due to take place in the House of Lords next week, will, I hope, back our judgment and exercise that opt-out.
What happens then? The Government have taken a decision in principle that it will be in the interests of the UK to join a number of measures that involve international co-operation in fighting serious and organised crime. These measures set in place the mechanisms for intelligence- sharing between enforcement agencies in fighting that battle.
Mr Cash
On whether the Government will continue to seek to rejoin, would the Secretary of State take the view that it was not appropriate to do so if the evidence taken in the scrutiny process by the three Committees led to the conclusion that that was not in the interests of the United Kingdom?
Chris Grayling
What I can say to my hon. Friend is that, as he and the other Select Committee Chairmen would expect, we will look very carefully at the conclusions they draw and we will bring these matters back to the House for a further vote. He would expect nothing less than that.
There are measures, such as the prisoner transfer agreement, that are very much in the interests of this country. I personally want to see Hungarian prisoners back in Hungarian jails as quickly as possible, but as my hon. Friend the Member for Cambridge (Dr Huppert) rightly said, we should have mechanisms to ensure our police forces can work together and share information when they need to.
Dr Huppert
I thank the Justice Secretary for that comment. Will he make it clear that he believes it is in the national interest to rejoin a reformed European arrest warrant, Europol, Eurojust and the other areas mentioned in this Command Paper?
Chris Grayling
I was coming to that point. I know just how controversial the European arrest warrant has been. My hon. Friends in the Conservative party know full well that it has been a matter of great concern to me; the shadow spokesman just quoted what I said in 2009, so it has clearly been a matter of great concern. What I say to the House and my hon. Friends who share that concern is that I would not personally have signed up to this package without the sensible reforms the Home Secretary is proposing. With those reforms being put into legislation, I can say to those colleagues who shared my misgivings that I believe we can trust what the Home Secretary is doing, that I believe we can go along with this agreement, that we are replicating the situation in other member states, and that I believe this is a robust approach.
I am also very sensitive to the points the hon. Member for Belfast East (Naomi Long) made about Irish issues, and we have taken them carefully into account. I have been to Belfast and discussed this with the Justice Minister there.
Mark Reckless
The Secretary of State says he is happy to go along with this agreement. Will he explain what agreement he is talking about?
Chris Grayling
What we have agreed to do across the Government is table amendments to the Bill before the House at the moment that introduce things like a proportionality test, which is much needed and mirrors the situation in Germany. That is the kind of reform to the arrest warrant that is very much needed.
Chris Grayling
No, I am going to make some progress.
I want to return to the amendment tabled by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and the other Committee Chairmen. We recognise the desire of the House Committees to carry out detailed scrutiny of our proposals. I want to make it clear that the Government are strongly committed to the set of 35 measures in Command Paper 8671, but we do not want to circumscribe debate in this House, which is why if the amendment is moved, I will be happy to accept it.
This is not simply a question of us deciding that list. There is a process of negotiation with the Commission and the other member states to follow. We will need the support of the Council and other member states if we are going to opt back into different measures.
Chris Bryant
The Justice Secretary referred to the changes to the operation of the European arrest warrant that have been tabled here. We broadly support them. They seem to be sensible measures and I congratulate the Home Secretary on what she has done, but will the Justice Secretary clarify for us whether they have been discussed with any of the other member states or the Commission?
Chris Grayling
Both the Home Secretary and I have had extensive conversations with other member states and, of course, the proportionality test we are introducing is very similar to the one that exists in the law of Germany and one or two other member states. The hon. Gentleman has very full of knowledge of the conversations I have had in Brussels, but I have to say to him that not all the information he has come up with reflects truly the conversations I have had. What he needs to remember, which he seems to have forgotten in all of this, is that we need the collaboration of the Commission and the other member states simply to agree the process. That is why we are voting tonight. We are doing so in order that some of those process discussions can begin and we can get on with the job of making the transition possible and, so we do not leave the kind of gap he is talking about.
Chris Grayling
No, I am going to make progress as I am running out of time.
We are here tonight because the Labour party broke a promise. It said it would give Britain a say on the Lisbon treaty; it then denied that to the country. This is actually the only chance we get to say no to a part of the European treaty—the Lisbon treaty—and let me remind Labour Members that if they walk through the Division Lobby tonight, they will be voting against that opt-out. They will be voting against what they themselves negotiated, and if they vote that way tonight, we will remind them again on doorsteps up and down this country. We will tell every Eurosceptic voter up and down this country what they have done—that they are voting for a federal European justice system and not in the interests of this country.
To my Liberal Democrat colleagues I say that the list of measures we have agreed, and which we will have debated by this House, represents a sensible balance of the different views in the coalition and represents what it is in the national interest to do.
To my Conservative colleagues, I say simply this: everyone knows my position on matters European—I believe that Britain’s position in the European Union needs, at the very least, to change pretty radically—but I strongly believe that this set of proposals on which we are voting tonight is the right one for Britain. If we do not exercise this opt-out, we will be trapped in yet another part of the conveyor belt towards an ever-closer Europe. As a party we should see this as a marker of the renegotiation that will come after we have won a majority in the next general election; it will be part of a process of bringing powers back to this country, which we desperately need to do, and of restoring a position that is right for the United Kingdom. But tonight’s vote is about whether or not we exercise the opt-out that the Labour party rightly negotiated—an opt-out that is clearly in the interests of this country. It is so essential that we act in the interests of this country tonight. So I call on all colleagues from all parts of the House to vote to exercise this opt-out and to do the right thing in the interests of this country.
Amendment proposed: (c), leave out from ‘House’ to end and add
’believes the UK’s notification to the Council, Commission and Presidency to opt out of all EU police and criminal justice measures adopted before December 2009 can only be made once the Council and Commission have committed to the UK’s ongoing participation in the European Arrest Warrant, the Schengen Information System II, Joint Investigations Teams, EU Council decision 2000/375/JHA on combating internet child pornography, EU Council decision 2002/348/JHA on international football security co-operation, exchange of Criminal Records, Europol and Eurojust, which will form part of the Government’s formal application to rejoin the measures in Command Paper 8671 in accordance with Article 10(5) of Protocol 36 to the TFEU.’.—(Chris Bryant.)
Question put, That the amendment be made.