(10 years, 11 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)
I beg to move,
That this House considers that the Draft Regulation on the establishment of a European Public Prosecutor’s Office (EPPO) (European Union Document No. 12558/13 and Addenda 1 and 2) does not comply with the principle of subsidiarity, for the reasons set out in the annex to Chapter One of the Fifteenth Report of the European Scrutiny Committee (HC 83-xv); and, in accordance with Article 6 of Protocol (No. 2) annexed to the EU Treaties on the application of the principle of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.
It is a pleasure, Madam Deputy Speaker, to see you in your place for this debate and to serve under your chairmanship this evening.
In July the European Commission published a proposal for the establishment of a European public prosecutor’s office—an EPPO. It is the Commission’s answer to a problem known as
“fraud against the Union’s financial interests”.
The EPPO proposal was published alongside a parallel legislative measure to reform the existing EU agency, Eurojust. These two proposals, the EPPO and Eurojust, will together be the subject of a separate debate in a week’s time as part of the so-called Lidington arrangements. I look forward to it, following my letters to the Chairs of the relevant Committees yesterday with the Government’s recommendation that the UK should not opt in to the new Eurojust proposal at the outset of negotiations, but should actively consider its position following a thorough review of the final agreed text.
The purpose of the debate is specifically for the House to decide whether the Commission’s EPPO proposal breaches the principle of subsidiarity, and that is what we should focus on tonight. I recognise that I am in an unusual position tonight in moving a motion on a course of action to be taken by the House, not the Government. I am aware, too, that the issue of who should move a motion in a subsidiarity debate such as this is a matter that the Procedure Committee has examined and on which the Government have responded. Although there may be differences of view over the procedure, I hope we can agree on the substance of the debate.
It is the shared view of both the European Scrutiny Committee and the Government that the EPPO proposal does indeed breach the principle of subsidiarity. If the whole House agrees, it can, under the EU treaties, send a democratic and political signal to the presidents of the European Commission, Council and Parliament in the form of a reasoned opinion to that effect. Moreover, in this case, if one quarter of the votes allocated to national Parliaments are cast, the so-called yellow card would be triggered meaning that the Commission would be obliged to review its proposal.
To update the House on how matters stand, both chambers of the Dutch Parliament, the Hungarian National Assembly and the Czech Senate have already taken this step, and others are actively considering it. This is a real opportunity for all national Parliaments to exercise, as democratic representatives, their views on what the Commission has proposed.
Before I say more about the reasoned opinion process, let me summarise the Government’s view on the EPPO proposal. The House will be aware of our long-standing position in the coalition agreement not to participate in the establishment of any EPPO, and the details of the proposal serve only to reinforce that position. While of course fraud must be tackled at all levels, including when it involves funds that form part of the EU budget, we do not agree that the establishment of a European public prosecutor’s office is the right approach.
The Commission’s proposal would establish a new supranational EU body with responsibility for criminal offences affecting the financial interests of the Union, as well as so-called ancillary offences within participating member states. The EPPO would exercise the function of a prosecutor within the courts of the participating member states for these offences and instruct their national authorities over the conduct of investigations.
This proposal is unnecessary, unsubstantiated and unwelcome. In the Government’s view, the best way to tackle EU fraud is through prevention. The UK has a zero-tolerance approach to fraud, with robust management controls and payment systems in place that seek to prevent incidences of EU fraud. Additionally we should continue efforts already happening to strengthen the current system.
For example, reforms to the European Anti-Fraud Office—OLAF—are currently being introduced to improve information exchange between OLAF and national authorities, and to improve OLAF’s own internal quality control. Indeed, a new regulation governing the work of OLAF entered into force only on 1 October 2013. These changes need time to be implemented fully before any further action is contemplated. Against that background, one of the many criticisms we have of the EPPO proposal is that the subsidiarity principle has not been met.
Without getting into too much technicality and legalese, the principle of subsidiarity means that decisions should be taken as closely as possible to the citizens whom they affect, and that the European Union should act only when outcomes can be better achieved at European Union level. It is important to note that subsidiarity is different from the principle of proportionality, under which any action taken by the European Union should not exceed what is necessary to achieve the stated objectives.
Under the protocol on the application of the principles of subsidiarity and proportionality in the treaties, the Commission must demonstrate that the objectives of the proposal cannot be sufficiently achieved at member state level—the first limb of the test—and then, that the objectives of the proposal can be better achieved at EU-level by reason of their scale and effects, which is the second limb and so-called EU added-value test. There is a requirement for the Commission to include a detailed statement in all legislative proposals on compliance with the principles of subsidiarity and proportionality, and some assessment of its financial impact. This detailed statement should be
“substantiated by qualitative and, wherever possible, quantitative indicators”.
In the Government’s view, the Commission has not presented a convincing case, and we do not believe that the principle of subsidiarity has been met. The Commission has not allowed time for current reforms to take effect, nor has it adequately considered options to strengthen the current system. For example, it has not considered enhanced incentives or other options for reform at regional or national level in any detail or in a rigorous manner, and it has not demonstrated what value an EPPO would add. We should recall that the relevant legal base in the treaties—article 86 of the treaty on the functioning of the European Union—says that an EPPO “may” be established. The treaties do not say it “shall” be created. The Commission has not, in our view, provided robust evidence to justify the creation of a supranational body with extensive and harmonised powers.
As I have said, under the treaties national Parliaments have the opportunity to put forward a reasoned opinion when they do not consider that a proposal complies with the principle of subsidiarity.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
As the Minister has just made a point about harmonised powers, may I remind him that one of the consequences of giving the EPPO the power to direct investigations would be to create a power for prosecutors that does not currently exist in England and Wales, although it does in Scotland? That perhaps illustrates the level of change that would be required to satisfy the idea of having a public prosecutor at European level.
James Brokenshire
I am grateful to my right hon. Friend, the Chair of the Select Committee on Justice, for highlighting the seriousness and significance of the European Commission’s proposal and why, in our view, it is not appropriate for the United Kingdom to opt in to the measure. As I have indicated, we made that abundantly clear in the coalition agreement in advance of the proposals being published. I am sure that we will examine in detail the impact of the Commission’s published measure in our debate next week on the in-principle decision as to whether the UK should opt in. That is the right avenue for exploring the detailed issues, whereas today is about subsidiarity. However, I take his points seriously.
Although there have been a number of reasoned opinions since the opportunity to provide them came into effect, there has only been one occasion on which the yellow card threshold has been reached. That was on a Commission proposal about the posting of workers and the right to take collective action, also known as Monti II. In that case, the Commission withdrew the proposal fully, even though it maintained that the principle of subsidiarity had been met. It conceded on the grounds that it was clear that there was no political will among member states and national Parliaments to take the proposal forward.
The Monti II case highlights the fact that the continuing use of the reasoned opinion procedure and resulting yellow cards represents a powerful political signal and an important way for national Parliaments to intervene directly in the EU’s functioning. Even when the yellow card threshold has not been met, the views of national Parliaments have been influential on a wide range of issues, as member states have used reasoned opinions to support their negotiating positions. They have often secured amendments on the salient issues on the back of them.
Achieving the threshold requires a great deal of co-ordination between national Parliaments. I am sure the European Scrutiny Committee and other interested parties in Parliament, in both this House and the other place, are making best use of their contacts with other national Parliaments in that regard. I look forward to hearing the debate and urge the House to support this important motion.
Diana Johnson (Kingston upon Hull North) (Lab)
This is the first time that I have spoken while you have been in the Chair, Madam Deputy Speaker, and I congratulate you on your appointment. It is a pleasure to serve with you in the Chair this evening.
I start by thanking the Minister for setting out the Government’s approach to the draft regulation. There is considerable history to the idea of an EPPO. Back in 2002, the European Scrutiny Committee scrutinised the 2001 Green Paper in which the European Commission first proposed the idea of establishing the EPPO. It found that the EPPO was unnecessary, particularly given the existence of Eurojust. It also identified a number of concerns, such as the combination of prosecution and investigative functions; the power of the EPPO to commit a person for trial and determine the location of that trial; the creation of differing standards of criminal responsibility for fraud depending on whether it related to the Community’s financial interests; the lack of democratic accountability for the prosecution function; the breach of the subsidiarity principle; and the dilution of member states’ responsibility for the prosecution of fraud.
The prospect of a specialist EU prosecution authority has been raised again since then and was one of a range of initiatives that the Commission considered in 2011. Again, the European Scrutiny Committee investigated those initiatives. In 2011 the Committee echoed its 2002 concerns and cautioned against the “inappropriate and unacceptable” use of national criminal justice systems in acting against crimes against EU finances.
The Opposition believe that this proposal seeks to address a real problem. Chapter 1 of the 15th report of the European Scrutiny Committee, to which the motion refers, makes it clear that the levels of suspected fraud against the EU budget are estimated by the Commission to have been around €500 million, or £425 million, in each of the last three years. That is clearly unacceptable and should be condemned by all Members of the House. We should of course seek new ways to ensure that that fraud, which costs us all as British taxpayers, can be stopped and the perpetrators brought to justice.
However, as we repeatedly made clear when we were in government, we do not believe that an EPPO is the solution to these problems. We agree with the European Scrutiny Committee’s recommendation that the EPPO proposal breaches the subsidiarity principle and that a national-level approach, supported by existing EU mechanisms, would be more appropriate.
Although the Labour Government signed the Lisbon treaty, which enables the creation of an EPPO, we argued in government that we were consistently against the formation of the office and put in place measures to “double lock” against its creation. The double lock we secured ensured, first, that the UK would have to opt in; and, secondly, that even if a future Government were to opt in, they would still need unanimity, which is retained for any decision to establish a prosecutor or extend its powers. As the Lord President of the Council at the time, the noble Baroness Ashton of Upholland, made clear in a debate in 2008:
“We have secured legally watertight safeguards in the treaty against any move towards a European public prosecutor or subsequently, and just as important, towards extending that prosecutor’s role. It is what we would call a double lock.”—[Official Report, House of Lords, 9 June 2008; Vol. 702, c. 454.]
Therefore, in government we put in place a system in which an opt-in procedure applies. Parliament could let its views be known and the Government could put forward their proposals. The Government would then, if they so chose—we always believed this to be very unlikely—have the discussions and determine by unanimity if they did not wish to participate.
We agreed with the Minister when he told the European Scrutiny Committee the following: that the creation of an EPPO is not the appropriate response to tackling EU fraud; that for participating member states the proposal will transfer responsibility for tackling fraud against the EU budget away from national-level decision making and towards a supranational authority whose European delegated prosecutors would have to prioritise EU fraud above other crime at a national level; that it is a flawed approach for member states not to be able to determine their national priorities, and the consequent use of resources, in tackling crime; that the EPPO would disrupt the current system for tackling fraud against the EU budget at a time where the Commission has reported two consecutive years of decrease in fraudulent and other irregularities affecting the EU budget and their estimated financial impact; that the proposed EPPO system would result in a duplication of established national-level efforts, including specific bodies, to protect member states and EU financial interests, including work against organised crime; that the best way to tackle fraud is through prevention, as reflected in the UK’s zero-tolerance approach to all fraud, which it takes “extremely seriously” and which has resulted in low levels of fraud, and by using robust management controls and payment systems and requiring all agencies with responsibility for distributing EU funds to have processes in place to monitor and report fraud; and that creation of the office would cause a shift from prevention to reaction after crimes have been committed, as it would make each member state less responsible for anti-fraud work at a national level
We agree with the Government on the principle that it would be wrong to proceed with an EPPO, and it is refreshing to see them for once getting something right on Europe. For far too long we have had the Government’s laboured decisions on whether they would be part of European co-operation on crime and justice, saying they want to opt out and then opt back in. That has led the Home Secretary to this untried strategy which risks harming effective police action in all our communities.
It has appeared for some time that the Government have been putting internal party management and coalition horse-trading ahead of crime fighting and the interests of victims. As the Leader of the Opposition made clear earlier this year, the Government’s strategy on Europe has not been to sort out the crisis of growth, it has not been to tackle youth unemployment, and it has had nothing to do with the national interest—it has all been about managing the divisions in the Conservative party. This type of party management as our European policy is not good for the country; nor will it keep the Minister’s party quiet. On Europe, the Government should be acting now to deal with the issues that really matter to people rather than navel-gazing to keep the coalition parties happy. The Government should be looking, for example, at how the UK in Europe can stop the exploitation of migrant workers and at reforms at the EU level so that family benefits such as child tax credit and child benefit are not sent abroad.
We agree with the Government on the motion. However, it is crucial that they start to take European issues seriously rather than simply shying away from anything with the word “Europe” in it. They must begin to come forward with genuine options for developing greater integration to stop EU fraud, and they must make it clear how they expect the UK to play its part as an EU member state in co-operating as closely as possible on cross-border crime, particularly drug trafficking, people trafficking and international fraud, rather than pursuing the Home Secretary’s untested and risky approach.
Martin Horwood (Cheltenham) (LD)
I add my congratulations to you on your election, Madam Deputy Speaker.
It is important that we retain some sense of proportion in this debate. We are, after all, discussing an idea which, in practice, would tackle the simple issue of crime against the EU, particularly fraud against the EU budget. While I welcome the Minister’s fairly practical approach, I think that the hon. Member for Kingston upon Hull North (Diana Johnson) doth protest a bit too much in painting such a cataclysmic picture of the complete collapse of the European criminal justice system were this to go ahead. That is completely out of proportion, and I think she is just trying to prove her Eurosceptic credentials. This is not quite the massive issue that some might imagine. I recognise, however, that there is a thin end of the wedge argument in that the proposal sets out a different principle in creating a new kind of European competence, albeit one already recognised in treaty. I also recognise the specific acknowledgement in the coalition agreement that Conservative Members, in particular, do not want to pursue such a solution to the problem.
In this case, on balance, the Government are right in their interpretation of the subsidiarity principle. The Commission has not demonstrated that the proposed path has to be taken because nation states are incapable of tackling fraud against the EU budget, and it therefore fails the subsidiarity test as currently presented. There is an important role for pro-European Members of this Parliament and other Parliaments in applying the subsidiarity principle properly. We should not allow any kind of drift towards dealing at a European level with competencies that are really better exercised at a lower level.
Kelvin Hopkins
Yet again the hon. Gentleman talks about Europe rather than the European Union. Many of us love Europe in all sorts of ways but do not necessarily love the European Union.
Martin Horwood
I had picked up that impression from many hon. Members, but I understand the point that the hon. Gentleman is making.
However, there is a problem. As the hon. Member for Kingston upon Hull North rightly said, it is estimated that there is a vast amount of fraud against the European budget—some €500 million a year—and that is unacceptable. National law enforcement against that is fragmented across the member states. While the UK may have a robust record on tackling it, that is not always true of all member states. In fact, only one in five of the cases transferred by the European anti-fraud office—OLAF—to the national prosecution authorities leads to a conviction, and those conviction rates vary considerably among member states. There is, therefore, a problem that needs to be tackled. I accept what the Minister has said about improvements to OLAF, but the European Commission and European Union authorities also need to take a more proactive stance against EU budget fraud. I do not think, however, that a European public prosecutor’s office is the solution at this stage.
The Commission’s proposal has an additional problem, in that it suggests locating the EPPO in Eurojust, but that would seriously muddy the waters of the role of Eurojust, which is a very effective and important organisation. I am pleased that the coalition has agreed that, with certain reforms, we should opt into it. Eurojust is important in stimulating investigation and co-operation on judicial and prosecutorial matters. The impetus for it emerged after 9/11, when the importance of tackling cross-border terrorism was made very clear. It helps European authorities to tackle serious organised crime, people trafficking, drug trafficking, the smuggling of illegal immigrants, illicit trade in human organs, kidnapping, trafficking works of art and computer crime. The list goes on and on and it is a very good example of how European Union institutions help us to tackle cross-border crime in a way that would be impossible for 27 different countries trying to co-operate on a bilateral basis.
To confuse the role of Eurojust, which is one of encouraging co-operation and stimulating investigations, with that of a prosecutorial authority would change the role of Eurojust and create an additional complication, which might, in the domestic political context, reduce support for opting back into Eurojust. Practically, politically and in principle, I think that locating the EPPO in Eurojust would be the wrong step to take.
I will not detain the House any longer. The Liberal Democrats support the Government’s motion. The problem of serious fraud against the European budget needs to be tackled, but the proposal oversteps the mark in terms of the principle of subsidiarity, so I am happy to give my support to the Government tonight.
Kelvin Hopkins (Luton North) (Lab)
May I add my congratulations to you on your election, Madam Deputy Speaker? I am very pleased to see you in the Chair.
I support the motion. As a member of the European Scrutiny Committee, I am pleased that we are winning an argument and making a point. It is good to see both Front Benchers in agreement and taking a robust stand on matters to do with the European Union.
The ESC is concerned that, over time, the British legal system is being chipped away at by EU reform. The proposal would be another step away from our own legal system and rights. The legal system on the continent—this is particularly true of France—tends to combine prosecution and investigation, but our legal system is very different and follows a different route. It is very important that we retain our great legal traditions and our legal system, which I think works extremely well. Of course, we also do very well in investigating fraud compared with some other member states.
I support what has been said by the Minister and my hon. Friend the Member for Kingston upon Hull North (Diana Johnson), who spoke so well. I also apologise for missing the first part of the Minister’s speech because I was detained elsewhere. Thank you, Madam Deputy Speaker, for allowing me to say these few words on behalf of the European Scrutiny Committee.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I would like to join the hon. Member for Luton North (Kelvin Hopkins) in giving credit where credit is due. This debate is taking place on the basis of the report and reasoned opinion of the European Scrutiny Committee. The Government agree with that reasoned opinion, but it is very much that of the Committee. In my capacity as Chairman of the Liaison Committee and the Justice Committee, I think that the European Scrutiny Committee is entitled to the credit. If there is something wrong with our procedure, it is that it does not fully recognise that process. However, the outcome is a happy one because pretty well everybody agrees that the reasoned opinion is correct, and it accords with the Government’s view.
The proposal for a European public prosecutor offends against the subsidiarity principle. One of its primary objectives is to strengthen the protection of the European Union’s financial interests. That is a perfectly reasonable objective to pursue, but it does not have to be achieved through the creation of a European public prosecutor. Indeed, it would not necessarily be best achieved in that way. The other limb of the general argument in favour of the European public prosecutor is that it is a further development of the area of justice. That provides the hint that subsidiarity is in danger of going out the window.
There are many ways in which the European Union could improve the way in which it deals with fraud. If national Governments fail to take the actions that they should take, they should be shamed into doing so. We also have to be a little careful about using percentage figures on the success of prosecutions. There is considerable danger if anybody thinks that the target of a justice system is to have 100% success in prosecutions. Courts will sometimes find people not guilty because the evidence has not been brought forward or sustained. The 100% target is a rather dangerous principle to import into this debate.
It is often pointed out that the European Union could do a lot more to resist fraud if it designed its schemes and its disbursement of money in ways that lent themselves to fraud a great deal less. Nothing is fraud-proof, but schemes can be designed that are less susceptible to fraud than many of those that have been developed over the years by European institutions.
Many elements of the proposal offend against subsidiarity. The European public prosecutor would have investigative powers, search and seizure powers, and interception and surveillance powers. To have those powers in operation at a supranational level would be a pretty significant change.
The proposal would take away the role of the Director of Public Prosecutions in prosecuting decisions in matters relating to EU fraud. It would have a similar effect on the roles of the procurator fiscal and the Lord Advocate in Scotland. The proposal would ignore the deliberate separation of decisions on investigation from decisions to prosecute in England and Wales, which is a long-standing element of our system. We can argue about whether that barrier should be retained, but we should have that argument in the context of our legal system and not allow it to be forced on us by the introduction of the European public prosecutor.
I am convinced that in the minds of some people, the creation of a European public prosecutor is a route to a prosecution role that goes wider than EU finances. I am not always tempted by slippery slope or Trojan horse arguments, but some of the same people have advanced the case for a prosecutor to deal with EU finances and a wider role for such an office.
Kelvin Hopkins
The right hon. Gentleman must accept that there has been constitution creep for decades in the European Union. Surely that is what we are trying to stop.
Sir Alan Beith
There have also been many advances in the way in which European nations use the European Union to achieve highly desirable objectives, such as through co-operating to deal with international crime. An intrinsic problem with the way in which the European Union was constructed, which is quite understandable given the way in which it was constructed, is that there is a belief in the Commission that the way forward is always to create further powers and jurisdictions. We have created a system that has that element within it. However, those who worry about Britain’s membership of the European Union have a tendency to underestimate the benefits and the value that have been achieved through many of its processes.
My hon. Friend the Member for Cheltenham (Martin Horwood) pointed out that there is a close relationship between this proposal and the issue of Eurojust. Unhelpfully, it would compromise the acceptability of Eurojust to many people if the European public prosecutor was located within Eurojust. There are other aspects of interrelationship between the two issues. I regard Eurojust as an extremely valuable institution that has many processes that are of great advantage to British citizens. It has an important role in the prevention and detection of crime against British citizens and British interests. But again, even within the Eurojust proposals that we will be looking at again shortly, the role of the national members of Eurojust in the Commission’s proposal to order investigative measures changes the relationship between law enforcement and prosecution that is so firmly a part of our system.
There is, of course, another feature of the proposals that I am glad has not attracted the attendance of some of my hon. Friends on the Conservative Benches: if we went ahead with it, it would trigger a referendum. That might make it attractive to them to vote against the motion tonight, or whenever we have a deferred Division. I should not really tell them this, because it might inflame them in a way that I do not want. Basically, I think we all agree that establishing a European public prosecutor’s office is not the direction in which we ought to go and that it offends the principle of subsidiarity, as is extremely cogently argued in detail by the European Scrutiny Committee.
Chris Heaton-Harris (Daventry) (Con)
It is a huge pleasure to see you in the Chair this evening, Madam Deputy Speaker. It is the first time I have had the opportunity to say, “Congratulations.” I congratulate you on your position.
I am a member of the European Scrutiny Committee, so it is a pleasure to witness the report being debated and accepted on all sides of the House. It is also a pleasure to see other members of the Committee—the hon. Member for Luton North (Kelvin Hopkins) and my hon. Friend the Member for High Peak (Andrew Bingham). I am sure the Minister is delighted that unfortunately my hon. Friend the Member for Stone (Mr Cash) cannot be here this evening, so I intend to fill in for him to a certain extent by taking the next 45 minutes of his life away from him. [Laughter.] No, I do not intend to detain the House for too long.
It is obvious to all who have read the Committee’s report or listened to the speeches this evening that the creation of the European public prosecutor’s office would breach the principle of subsidiarity. In fact, it is so obvious that my good friend the hon. Member for Cheltenham (Martin Horwood) has noticed that there is a breach. Blimey, it must be bad—if there is a breach that he can spot, most of us could drive a coach and horses through it. We should therefore be very aware of what the Committee is highlighting.
The European Commission proposal to establish the European public prosecutor’s office has been around for quite some time. I can remember as a Member of the European Parliament being stuck in a debate in the early 2000s listening to a fantastic German lady, Diemut Theato, who I think was the head of OLAF for a short period and then my chair of the Committee of Budgetary Control, argue vociferously for the office of European public prosecutor and everything that goes with it. This new regulation, however, would create a slightly different beast—it has morphed even since then. This would be a new EU body with a head, the European public prosecutor, and at least four deputies, with powers to conduct investigations and prosecutions in member states against people suspected of crimes against the EU budget—fraud. I heard the Minister say that there will be a further debate next week and I look forward to speaking in it, if I am called. . However, if I may, I would like to spend a few seconds on what the proposal might mean.
Each member state will have a representative of the EPPO, known as a European delegated prosecutor, who will be empowered to direct national investigative and prosecuting authorities when it comes to crime against the EU budget. There is an interesting question about what constitutes a crime against the EU budget and how that would be defined. They will have exclusive competence to investigate and prosecute suspected offences against the EU budget. The investigative measures include surveillance, search and seizure, and even the summoning of witnesses. These would be significant powers. The EPPO would also be able to act as prosecutor in national courts.
The possible creation of the EPPO is enabled via the Lisbon Treaty, and I recognise the work of the previous Government to ensure that we were not swept up at that time. It can be created through this new regulation, but we are not bound by it: we can choose to opt in thanks to the justice and home affairs arrangement. However, the Lisbon treaty actually discusses the public prosecutor’s power being extended to other serious cross-border crime, such as computer crime, money laundering and a host of others. In itself, that could make the EPPO more powerful than even the FBI, and it would hold the power to investigate and prosecute in nation states. That looks like the creation of a federal European criminal justice agency, which is not something that anybody in Britain would like to see.
The EPPO does not fulfil the “principle of subsidiarity”, by which
“the Union shall act only if and in so far as the objectives…cannot be sufficiently achieved by the Member States”.
As the Minister outlined, I am aware that this is possibly only the second time that the yellow card will be used, and member states have an eight-week opportunity—which closes this coming Monday, I am told—to use that yellow card. As a football referee, I very much like the yellow card and believe we should use it more often when it comes to European regulation.
There are three aspects to why the European Scrutiny Committee says that the EPPO does not comply with subsidiarity, and I think they are worth highlighting. First, the European Commission has not adequately considered options for alternative means for improving the fight against fraud, such as preventive measures at the point EU funds are given out—that point was well made by the Chairman of the Justice Committee. Secondly, the Commission has not waited to see the impact of the proposed new directive on criminal offences and sanctions relating to fraud against the EU budget—indeed, I believe that that directive has not yet been properly agreed, so perhaps we are putting the cart before the horse on this occasion. Thirdly, the Commission used questionable data and flawed assumptions when assessing the proposal, such as unreliable convictions data from member states—it is questionable how much money the prosecutor would get back, and no one knows how the figure in the proposal was reached.
When becoming Members of the European Parliament, all are given jobs—that is part of the deal—and being the most junior of the juniors when I got elected in 1999, I was given the job of rapporteur for OLAF. That came on the back of the fraud of the European Commission in 1999, and the report of the committee of wise men that said what should be done.
Kelvin Hopkins
I am most interested in the hon. Gentleman’s experience of the European Parliament. May I ask whether one is paid extra for these jobs?
Chris Heaton-Harris
If only that was the case. My wife questions the sanity of my move across to this place anyway. We were well rewarded for what we did; it paid exactly the same as for Members of Parliament at the time, but Members of the European Parliament now have their own salary, and pay a different tax rate on most occasions.
OLAF came out of the report of the committee of wise men. It was mainly to investigate Commission fraud and crime, which was one of the things that brought down the European Commission in the first place. It also had plenty of powers to protect the EU’s financial interest. In the debate next week I intend to highlight what can be done in the reform of OLAF to allow us to prove to the European Commission that the whole new power grab of having a European public prosecutor’s office is not required. If the Commission used the powers and bodies it already has—already well funded and in general relatively well run—we would not be in this position in the first place. I wholeheartedly support the motion.
James Brokenshire
With the leave of the House, I thank right hon. and hon. Members for their contributions. This has been a useful debate, and from what we have heard it is clear that the House supports the motion before us, and identifies that there is an issue of subsidiarity with the Commission’s proposal for a European public prosecutor’s office. As I said at the outset, this is a matter for Parliament and not the Government. Therefore, in the light of the mood of the House this evening, I hope that the European Scrutiny Committee will take this issue and work with other interested parties in Parliament, the House and the other place, and make best use of their contacts with other national Parliaments in that regard, given the interest and focus that I know are being directed to this proposal by Parliaments around the EU.
The coalition agreement makes it clear that the UK Government will not participate in any European public prosecutor’s office. As we have heard from hon. Members, that is because a centralised European prosecutor with harmonised powers to initiate investigations and order investigative measures is incompatible with the division of responsibilities in the UK between law enforcement and prosecutors, and the role of the independent judiciary. In many ways, that reflects a number of the comments made by my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith)—the Chair of the Justice Committee—the hon. Member for Luton North (Kelvin Hopkins), and my hon. Friend the Member for Daventry (Chris Heaton-Harris). May I say that the last of those is filling in for my hon. Friend the Member for Stone (Mr Cash) admirably this evening in ensuring that the will and views of the European Scrutiny Committee are properly represented in the debate? I look forward to him standing in on future occasions.
I want to underline and respond to some of the points made by the hon. Member for Kingston upon Hull North (Diana Johnson). I welcome the fact that she agrees with the Government’s analysis of subsidiarity as it applies to the European public prosecutor’s office measure. However, it will not surprise her that I take issue strongly with her suggestion that the Government do not take transnational and serious organised crime, and working with law enforcement agencies across the EU, very seriously in ensuring that public are properly protected against organised criminality that crosses borders. I will not detain the House because this is a matter for another day, but it is interesting that the Labour Government negotiated the right to exercise the 2014 block opt-out—she described the 2014 decision as an untested approach. From her comments, I can only assume that the previous Government had no intention of exercising that right and therefore of seeking to provide those protections—it was a sham.
The hon. Lady highlighted protections in respect of the European prosecutor’s office—unanimity and the right to opt in—but it is important that the public have a say and a right to form a view in respect of such an important issue. That is why I welcome the fact that the Government have legislated to make any decision by a future Government to commit the UK to participating in the creation of the European public prosecutor’s office a matter that would require an Act of Parliament and—yes—a referendum under the European Union Act 2011.
This has been a helpful debate and I welcome the views that have been expressed. We will monitor with close interest whether the threshold is triggered to issue the formal yellow card to the Commission. We will return to matters more broadly in relation to the European public prosecutor’s office and the relationship with Eurojust when we debate the formal opt-in decision motion, when we can examine those matters in further detail.
Question put and agreed to.
Resolved,
That this House considers that the Draft Regulation on the establishment of a European Public Prosecutor’s Office (EPPO) (European Union Document No. 12558/13 and Addenda 1 and 2) does not comply with the principle of subsidiarity, for the reasons set out in the annex to Chapter One of the Fifteenth Report of the European Scrutiny Committee (HC 83-xv); and, in accordance with Article 6 of Protocol (No. 2) annexed to the EU Treaties on the application of the principle of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.