Justice and Home Affairs Opt-out

Lord Beith Excerpts

Monday 7th April 2014 Commons Chamber

[Jacob Rees-Mogg]

If we opt into any of these measures and they are justiciable by the European Court of Justice, we are, through that act itself, ceding sovereignty to the European Union, because it is part of building up a single state.

What does a state have that makes it a state? What is the essence of a state? At least one important part is the ability to control law and order. We are opting back into the things that are most clearly creating the powers of a federal state of the united states of Europe—a single state that is the European Union. That will mean that we are no longer a member of an international organisation like any other, such as the United Nations or NATO, from which it would be easy to withdraw, should we wish, although I am not suggesting for a moment that we do so.

Of the 35 areas that we are asking to opt back into, three illustrate the fundamental importance of the sovereignty issue. The first of those is the European arrest warrant. The decision over who can arrest a nation state’s citizens must be an essential right of that nation state in determining this exceptional power that it gives to its police officers. In our case, the power that constables who hold the Queen’s warrant have to restrict somebody’s freedom comes directly from the Crown as part of the expression of the power of the state. To decide that an arrest can be determined abroad without any of the necessary British legal procedures involved is a move very firmly towards a federal state. Crucially, the question of who is or is not arrested will no longer be determined by a British court but by the European Court of Justice, over which we have no absolute control. We may have one justice there, but it is not a court to which we send ambassadors; it is a court that is independent in its exercise of European law as opposed to British law.

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

The hon. Gentleman has fallen into uncharacteristically misleading language. Over what court does he think we do have control? We send to the European Court of Justice judges just like those we have in our own courts, and we do not purport to control them from this House.

[Jacob Rees-Mogg]

My right hon. Friend is fully aware that Parliament can overrule any court in this country by an Act of Parliament. That is how our constitution works; it is the absolute essence of our constitution and our democracy. He, of all people, must know that. We have in this House, and together with the House of Lords, the ability to change the law if there has been a judgment that is alien to our understanding of how the law should be enforced. That is simply not the case as regards the European Court of Justice. It is a court that is outside the control not of Parliament but of the people of the United Kingdom, whose rights are being given up. The arrest warrant would be handed over as part of the creation of a state.

Tied in with this is Europol. Europol, in its current form, is limited, but once we have signed up to this measure, its development will be subject to the qualified majority vote. Europol exists to provide support and assistance to member states in the fight against organised crime and drug trafficking. What are we doing in this regard? Are we setting up the very beginnings of a federal bureau of investigation? Are we starting to say that we will have a police force in Europe with a power that goes across national borders? Are we therefore saying that British subjects may be subject to a law that this country has not agreed to—indeed, we may even vote against it—and that has emanated from a judicial system that is not controlled by the democratic will of the British people?

That ties in with Eurojust, which is about creating mutual legal assistance to aid investigations and prosecutions and how judicial action in a cross-border case should take place. What is happening? We are creating an arrest warrant, the beginnings of a European police force and Eurojust, which will allow co-operation in a judicial and prosecutorial capacity. That is not a million miles away from creating a European public prosecutor, which for some reason is singled out as the one thing that is a bridge too far and that we must never have without a referendum, but everything that is being put in place makes that the next logical step. If we do this, it would be no surprise if a future Government said, “We have the arrest warrant, Europol and Eurojust, so surely we don’t need a referendum to have a public prosecutor, because that is the next thing we should do.” This is further evidence of the creation of a European federal state.

The argument in favour of this measure is that it will help ensure that criminals get caught. Everyone is in favour of that: of course we want criminals to be brought to justice. Is there not, however, an ancient view of British justice that it is better for 100 guilty men to go free—I say “men” deliberately, because women very rarely commit crimes that get them sent to prison, much less so than men, and I do not want to upset any hon. Ladies—than for one innocent man to go to prison? That seems to be at the essence of our understanding of justice. This is about risking our belief in justice for the convenience of the Administration.

Is it not that the worst argument of all that their noble lordships have produced a report saying that public officials are too idle to do their jobs properly for us to have a system of bilateral negotiations? I know that our public officials are among the greatest and hardest working people in the land. When one sees them arrayed in front of us, one knows that they would be willing to burn the midnight oil and act in the nation’s interest to ensure that we have those bilateral agreements. Although it has not yet been done, there is nothing in European law to prevent a member state from having an agreement with the body of the European Union. The European Commission does not want that to happen, but that is a very different question from whether or not it is legal. It could easily be done by a relatively simple treaty change, if it is not provided for in the current treaties.

--- Later in debate ---

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

I must first explain to the House that I had to leave during the middle of this debate, after the opening speeches, to speak in a discussion upstairs about a statutory instrument that directly affects my constituency.

I have the pleasure of following the hon. Member for North East Somerset (Jacob Rees-Mogg). It is a pleasure because of his eloquence, but eloquence and judgment do not always walk together, and on some matters he is simply wrong, including about the European arrest warrant. My belief is that if 100 criminals go free in the absence of the European arrest warrant, that would be an extremely bad state of affairs for our constituents. That is entirely separate from the question of ensuring that no innocent person is convicted in our courts. Long may we strive to achieve that second objective.

[Mark Reckless]

Will the right hon. Gentleman give way?

[Sir Alan Beith]

It is quite early to give way, but very well.

[Mark Reckless]

In response to the right hon. Gentleman’s first point, how many of our own citizens—who had done nothing wrong and been convicted of no crime—is he prepared to see detained in foreign prisons in return for those 100 people going free?

[Sir Alan Beith]

One measure that we are opting into ensures that people do not have to be detained in foreign prisons, but can be returned to the United Kingdom to serve under bail conditions in the United Kingdom. That is another reason why I think that we should look at the measures individually and decide which are in the national interest and beneficial to our citizens because they afford some protection to our citizens abroad or because they help to protect our citizens in this country from criminals who flee elsewhere having done terrible harm.

[Mark Reckless]

rose—

[Sir Alan Beith]

I want to make a little progress.

I want primarily to speak about the Justice Committee’s work on this matter, but I cannot forbear to mention that the Government have handled their relationship with Parliament very badly in this regard. This debate is a somewhat belated and limited response to the view of the three Committees that there should have been an early opportunity to debate and vote on the measures so that the Government knew the House’s views, with that being supported by impact assessments at an early stage—we still have not had any—and a much earlier indication of the Government’s intentions.

There have indeed been intensive discussions. The hon. Member for North East Somerset implied that they took place at a table with all the Conservatives on one side and all the Liberal Democrats on the other. I know that it was more complicated than that on several issues, as I am sure the Justice Secretary is well aware.

I want to turn to the measures for which the Ministry of Justice is responsible, and on which the Justice Committee reported. Of the total of 16 such measures, the Government propose that the UK should rejoin seven. Our report examines the case for and against rejoining all 16 measures, and we concluded in broad support of the Government’s approach. There are six mutual recognition measures—on financial penalties, previous convictions, prisoner transfer, probation measures, judgments in absentia and the European supervision order, to which I referred a moment ago—and the Government propose to rejoin them all, except for the probation measures framework decision.

We agreed that the Government was right, in the national interest and in the interests of effective cross-border co-operation in criminal justice, to seek to rejoin five of the measures. The Government support particularly strongly the UK’s participation in the prisoner transfer framework decision, stating that a top priority is to reduce the number of foreign nationals in UK prisons, while the decision is also an important part of the overall reform package of the European arrest warrant. My support for the European arrest warrant is accompanied by the belief that it was right to take active steps in various areas to try to reform it and make it better serve its purpose.

One of the five measures, the European supervision order, enables a defendant or suspect under non-custodial pre-trial bail or other supervision to be returned to their home member state to await trial there. It would not of course apply to people granted unconditional bail, who would be free to return to their home member state in any case. We urged the Government to implement the measure without further delay, and their response stated that they intended to do so as soon as practicable.

On the probation measures framework decision, which provides a basis for mutual recognition and supervision of suspended sentences, post-custodial licences and community sentences, we noted the Government’s concerns about its practical operability, but we stated:

“In view of the potential value of the Framework Decision we consider that the Government should pursue the matter in their negotiations on the opt-in list to see whether these concerns can be dealt with. We would not wish to rule out participation in the measure if concerns about its drafting can be overcome as part of the forthcoming negotiation process or at a later stage.”

In their response, the Government spelled out in more detail their objections to the measure, including that it falls within the jurisdiction of the European Court of Justice, while saying that they support the measure in principle. I still hope that they will make some effort to deal with some of the practical difficulties, because the measure may be of real benefit.

There are six minimum standards measures, which set out EU-wide minimum penalties and sanctions for corruption involving officials, counterfeiting of the euro, fraud and counterfeiting of non-cash means of payment, and corruption in the private sector. Two of the measures will be replaced by a new directive, covering counterfeiting of the euro, which the UK has decided not to opt into. The Government do not propose to rejoin any of the remaining four measures. They pointed out that we already at least meet the minimum standards, and rejected the arguments that were put to us in evidence that leaving the measures could cause reputational damage. We stated that

“the arguments for opting into the…minimum standards measures are primarily symbolic, and our view is that those arguments do not outweigh the disadvantages of bringing wide areas of criminal justice in the UK unnecessarily into the jurisdiction of the Court of Justice of the European Union.”

The remaining four measures under the aegis of the Ministry of Justice comprise one on data protection in police and judicial co-operation, one on a data protection secretariat, a Schengen agreement on road traffic offences and a measure on conflicts of jurisdiction. The Government propose to rejoin the first two, but not the last two. We broadly agreed with the Government’s line, although we stated that the arguments were finely balanced as to whether the UK should rejoin the framework decision on settlement of conflicts of jurisdiction, because it provides a framework of guidance for member states to put in place to protect against parallel legal proceedings on the same matters being taken in different member states. The Government’s position, which they maintained in their response, was that it had no additional practical value because best practice arrangements are already in place.

Our broad conclusion was to support the Government’s choice of opt-ins on Ministry of Justice measures. The Government closely coincide with our views. Those views are on the record for the consideration of the House to which we report, and it remains a matter of regret to me that we were not able to register our views in the House earlier and in a more concrete way. However, this debate has been a useful means of reminding the Government about where it has support, where there are differences of view and, in particular, where the Select Committees charged with such responsibilities have looked carefully at the measures and given their advice.

[Mr Dominic Raab (Esher and Walton) (Con)]

It is a pleasure to follow the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). We have not reached the same conclusion, but I pay tribute to the work of his Select Committee, and indeed to the work of all the Select Committees that have provided the reports that have invaluably informed this debate. I agree with the point that has been consistently made on the critical role of parliamentary scrutiny in all of this. Whatever our view on the measures and the direction that Britain should take, the measures are clearly substantive and important.

I welcome the Government’s exercise of the block opt-out, which is critical. I am surprised by the great lengths that Opposition Members, so few of whom remain in their place, have taken to trash the opt-out that they negotiated and to highlight all its flaws. Time and again, rather than setting out their position on the substance, they are at pains to point out their failure to negotiate, and to rubbish the product of their negotiations before the previous election.

It is important that we scrutinise the substance of this area of UK-EU relations, both because of its effect on policy and because the public care about it. For all the slavish pro-EU noises that we have heard from Labour and Liberal Democrat colleagues, their argument is clearly not taking effect with the British public. A ComRes poll for Open Europe towards the end of last year found that crime and policing is the fourth most important area that the British public want renegotiated with Europe. The top area is immigration, so two of the top four measures for renegotiation, according to the British public, who we know overwhelmingly back renegotiation, are justice and home affairs measures. If Conservative Members are just a bunch of crazies and are missing something, other Members must struggle to explain why they have failed to win over public opinion. Why do the public so strongly think that justice and home affairs is an area that needs to be reconsidered? It is important that we look at the package as a whole and at individual measures through the cold, hard lens of the British national interest.

My opening point is that the lack of proper empirical evaluation of the effectiveness of many JHA measures has been an endemic problem across successive Administrations, but particularly under the previous Government. In comparison with the way in which UK policy and legislation works, whether we are for or against the measures, we do not have a proper understanding of how the measures operate in practice. The right hon. Gentleman referred in a rather cavalier way to hundreds of criminals going free if we do not sign up to the European arrest warrant. I will take an intervention if he can explain where that figure comes from, because I do not think it is based on concrete evidence.

[Sir Alan Beith]

I was referring to the remarks of the hon. Member for North East Somerset (Jacob Rees-Mogg), who used the rather tired saying that it is better for 100 individuals to go free than for one innocent man to be convicted. My argument is that it would not be acceptable for 100 people to go free because we do not have the European arrest warrant, but we should also ensure that innocent people are not convicted.

[Mr Raab]

I thank the right hon. Gentleman for his intervention. He is the Chair of the Justice Committee, which has investigated the measure, but I am still not clear on the public protection shortfall, in empirical terms, if we do not sign up to the European arrest warrant and instead look for alternative arrangements, which I know would be slower. The Home Secretary referred to a case relating to the German constitution, but what is the empirical evaluation of the quantitative size of the public protection shortfall for which the European arrest warrant caters? I am none the wiser. I appreciate that the police would love to have fast-track extradition, but I will not nod police powers through the House that have been requested by the Association of Chief Police Officers, or by anyone else for that matter. In the same way, I would happily join forces with Liberal Democrat colleagues to face down police requests for things such as ID cards or extended powers of pre-charge detention. We need to consider the merits of each proposal.

ACPO’s evidence to the House of Lords European Union Committee has been regularly cited, and that evidence recommends that it is vital to opt back in to only 13 of 135 EU crime and policing measures. I do not suggest that we should take that at face value, but it is extraordinary that only 13 measures are regarded as being of any tangible law enforcement value. That highlights the unthinking way in which the previous Government signed up to EU measures, and they are now saying that the current Government are proposing only to opt out of trivial measures. The real question is why the previous Government signed us up to stuff that is trivial, redundant and irrelevant, not least because the trajectory of EU justice and home affairs is, sooner or later, going to encompass the jurisdiction of the European Court of Justice, which we know can turn seemingly irrelevant or peripheral measures into something damaging for national democracies. At the other end of the scale, it shows how much pointless legislation comes out of the EU if the police, who are regarded as the most zealous advocates of EU crime and policing, are advocating that we opt back in only to such a small proportion of the measures covered by the Lisbon treaty opt-in.

I pay tribute to the 21st report of the European Scrutiny Committee. I agree with all the points on the risk of giving jurisdiction to the European Court of Justice, because we would end up doing for crime and policing what the European Court of Human Rights in Strasbourg has done for deportation powers and prisoner voting and is looking to do for whole-life tariffs. We should be very cautious about that.

The Home Affairs Committee’s ninth report contains some important analysis of the European arrest warrant, which it describes as “fundamentally flawed.” It is worth noting that that backs up the evidence from Britain’s most senior High Court extradition judge, Lord Justice Thomas, to the independent Baker review of extradition. Lord Justice Thomas said that the European arrest warrant has become “unworkable.” I will read out in full some quotes from Britain’s most senior extradition judge, because this is not a right-wing excursion or some rabid anti-European ideology; it is from someone who considers such cases week in, week out. In his evidence to the Baker review, Lord Justice Thomas said:

“Looking at the 27—I’ve said this to many people—this system becomes unworkable in the end… politically there is a huge problem. There is quite a lot of strong judicial feeling on this subject”—

the European arrest warrant—

“in northern Europe that both the judges and politicians in other countries need to put the resources into their systems to bring them up to standard… We’re all agreed there’s an undoubted problem, as the cases sent in by Fair Trials International illustrate. If you talk to anyone, there’s obviously a problem… One of the problems with the way in which a lot of European criminal justice legislation has emerged is that it presupposes a kind of mutual confidence and common standards that actually don’t exist.”

That is Britain’s most senior extradition judge.

Previous speakers, particularly my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), spoke about considering not only a snapshot of current co-operation but the future vision of where EU justice and home affairs co-operation is heading. I entirely agree with that analysis. We need to think of the long term, not just the short term. I know that many hon. Members are rightly fixated on the time lag and the time gap, whether we have enough time to do anything else and whether we will find ourselves, having opted out, not opting back in to measures, but at this juncture we ought to look to a long-term settlement of Britain’s relationship with Europe in the important area of crime and policing.

I fear the creeping supranationalism that is undoubtedly coming. We cannot read the text of the regulations, whether on Europol or Eurojust, not to mention the wider remit of the European Court of Justice, without seeing that that is happening. We would have to be blind not to accept that. There is a new draft regulation that would strengthen Europol’s power to demand that national police forces initiate investigations by whittling away the national right to say no. There is similar strengthening of powers to demand data from national Governments with less ability for those Governments to say no. There is increasing supranational management of the running of Europol. Of course, if we opt back in, all of that is subject to the overriding jurisdiction of the European Court of Justice, rather than the British Supreme Court. I always find it fascinating that Opposition Members, including the shadow Justice Secretary, who set up the British Supreme Court, are now so willing and eager to give away its right to have the last word not only on matters affecting law enforcement and public safety but on matters affecting British citizens.