Presumption of Innocence and EU Law

Lord Beith Excerpts

Monday 10th February 2014 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara)]

I beg to move,

That this House considers that the Draft Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (European Union Document No. 17621/13 and Addenda 1 to 3) does not comply with the principle of subsidiarity, for the reasons set out in the annex to Chapter One of the Thirty-second Report of the European Scrutiny Committee (HC 83-xxix); and, in accordance with Article 6 of Protocol (No. 2) annexed to the EU Treaties on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.

Tonight’s debate is about this House having its say on proposals from the European Commission that touch on matters at the very heart of our country’s justice system. The House has the opportunity to endorse the House of Commons European Scrutiny Committee’s reasoned opinion that the European Commission’s proposal on the presumption of innocence breaches the principle of subsidiarity.

I want to be clear from the outset that this is a matter for the House and it is not the Government’s decision. The treaties give this House, and all national chambers, the right to issue reasoned opinions on the principle of subsidiarity, and that is what this debate is about: the question of subsidiarity. It is not about the question of the UK’s opt-in. I am happy to assure Members that the Government have offered time to debate the opt-in separately, ahead of the Government’s final decision. We look forward to hearing the Committee’s view on that in order to inform that decision.

The House will appreciate that questions of subsidiarity are finely balanced and we welcome the opportunity for this House to present its view directly to the European Union—a right this Government will defend and facilitate to the hilt. The idea of subsidiarity is that decision making should take place as closely as possible to the citizens whom those decisions affect. Under article 5 of protocol 2 to the treaties, the Commission needs to set out, among other things, a detailed statement on how its proposal complies with the principle of subsidiarity. The reasons for concluding that the objective of the proposal can be achieved at EU level must be substantiated by qualitative and, where possible, quantitative indicators. To underline the importance of this, the treaties provide that national Parliaments—and chambers within national Parliaments—can deliver reasoned opinions to the Presidents of the EU institutions where they consider that the Commission has breached the subsidiarity principle.

The proposal the Commission has put before us relates to the presumption of innocence, a fundamental principle of our country’s justice system, as it is of many other countries’ justice systems. No one in this House would seriously doubt our commitment to the principle. It stretches back as far as Roman times and is a central pillar of our common law system, as well as the common law systems in other countries. Moreover, it has been enshrined and developed in many civil law systems on the continent itself.

The principle is set out in the universal declaration of human rights and in the European convention on human rights. It is contained in the French declaration of the rights of man, and countless other constitutions around the globe. The problem, and the issue for debate tonight, is specifically whether EU action in this area can be justified or whether this is a matter for member states.

The Commission bases its argument for the proposal on the fact that member states are being effectively barred from co-operating in criminal matters because of differing standards in this area. Here I can only endorse the view set out in the European Scrutiny Committee’s report that the case simply has not been made. The Commission itself admits that evidence is scanty. It may be true that specific rules vary, and that specific practices and laws will not be identical across our different jurisdictions. Indeed, it is worth noting in passing that specific rules vary even across the United Kingdom, but that has, to my knowledge, never acted as a barrier to the co-operation of our justice systems.

We should remember that all member states are bound by the European convention. All member states should be meeting those basic standards already. As the Committee points out in the draft reasoned opinion, if there are cultural issues at play in a country’s justice system, a further piece of legislation from the EU will not resolve them.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

The point that I am about to make will not necessarily appeal to all the Minister’s colleagues. Would it not be rather unsatisfactory if we found ourselves in a situation in which the right to a fair trial was justiciable in the European Court of Justice, rather than being dealt with in the European Court of Human Rights and by the application of the European convention on human rights in UK domestic law, which are the ways in which we have long agreed that such matters should be resolved?

[Mr Vara]

As always, my right hon. Friend makes a relevant point. For the purposes of today’s debate, however, I shall confine myself to the presumption of innocence. I am mindful that we have only 90 minutes for our debate, and many hon. Members wish to speak, including the hon. Member for Hammersmith (Mr Slaughter), who I am sure will want to have a decent say in the matter, in his own way.

Mutual trust and recognition are of course important in ensuring that European justice systems can operate together when crimes span borders, but without solid evidence, that mutual trust is in practice being adversely affected by these national differences. The Commission’s case for action has not been made. There is also a much broader issue at stake. As I said, this matter lies at the very heart of our justice systems as sovereign countries.

The presumption of innocence is at the core of the rights and protections we afford in our laws and traditions, and in our constitutions, to those accused of committing a crime. That instinctively feels like a matter on which member states themselves should be making decisions. In so far as we can conclude that minimum standards are a legitimate aim—as it seems the Commission has done here—action needs to be taken at EU level, but under the terms of the treaties that permit the setting of minimum standards across the EU, we need to be wary of the Commission bringing forward totally unnecessary proposals under the umbrella of securing mutual trust and recognition. It will always claim to have passed the subsidiarity test, even when others have their doubts.

The process from here is that the reasoned opinion, if approved by the House, will be presented to the Presidents of the Commission, the Council and the European Parliament. If sufficient numbers of other Parliaments do likewise, the Commission will be presented with its yellow card and must rethink the proposal.