European Union Bill

Lord Faulks Excerpts

Monday 9th May 2011 Lords Chamber

[Lord Flight]

While there is obviously a differentiation between the European Court of Human Rights and the EU, the point I was making was that if there is accession the result could be an important overriding of UK law by the ECHR and decisions taken by the ECHR in due course becoming binding in the law of this land. This is effectively a change and a giving away of power by the UK to the ECHR rather than the EU in terms of its law making.

To conclude, these two amendments are essentially illustrative. As I commented earlier, looking across the total territory, there are many areas where the arrangements surrounding the EU and bodies such as the ECHR continue to cater for powers being taken without the requirement of an Act of Parliament and certainly without the requirement of citizens having a say in it. The argument that this Bill is right over the top in terms of the areas where it requires a referendum is nonsense. Let me assure your Lordships that there are scores of other areas where a transfer of power could occur where no referendum is being provided for.

Contrary to the arguments put by noble Lords from the other side of the House, a reasonable balance has been adopted by this Bill. Those of us who are perhaps on the other side of the argument would make the point that there are many areas which this Bill does not address where we can still see scope for power being transferred.

[Lord Faulks]

My Lords, I rise to comment on the European public prosecutor, the subject of an amendment by my noble friend Lord Goodhart who is not in his place. The potential establishment of the European public prosecutor finds its origins in concerns about budgetary fraud and the improper diversion of grants and aids. The purpose is to improve co-operation and to co-ordinate legal action among member states. It would potentially involve the establishment of a uniform code of criminal offences of fraud against the EC budget applicable in all member states and a uniform set of procedural rules applicable in investigations. Together that would constitute a so-called corpus juris, which would be enforced by the European public prosecutor’s office. I regard this as a significant potential change as a lawyer, but also not as a lawyer.

It seems that the rationale behind the potential establishment of the EPPO ought on the face of it to attract the support of the United Kingdom. Nevertheless, it would amount to a substantial change in criminal jurisdiction. The idea of national prosecutors on secondment from the EPPO in the UK is a significant alteration to our system, which provides that it is for the Crown to prosecute criminal offences. Once established, there would inevitably be steps taken to introduce rules which might not sit easily with our common law systems.

Article 86 provides that an EPP,

“shall exercise the functions of prosecutor in the competent courts of the Member States”.

This means that we would give up control of a fundamental part of our judicial system; namely, the decision on who can be prosecuted for what and, equally important, the decision not to prosecute in some circumstances. It is now the province of the CPS. The EPP will initially be concerned with only crimes affecting the financial interests of the union, although that definition is likely to prove particularly elusive. However, by a passerelle in the treaty, the powers of the EPP can be extended to cover any serious crime with a cross-border dimension, which gives it a potentially very wide remit. One has to think only of the problems with the European arrest warrant, to which my noble friend Lord Lamont referred, and the definition of serious crimes.

The creation of an EPP has not met with much enthusiasm from our friends on the other side of the House. When the matter was discussed at length in 2002 and 2003, Justice said it thought that a European court of criminal justice would have to be established. The Law Society of England and Wales and the Law Society of Scotland did not think a case had been made out for it. The European Union Committee of your Lordships’ House concluded that a European public prosecutor was not a realistic and practical way forward, stating:

“The benefits of creating another body and in particular an EPP, whose existence and processes could cut across national criminal laws and procedure and which might not be accountable to democratically elected representatives, have yet to be clearly and convincingly demonstrated”.

While even the most ardent Eurosceptic would support all reasonable steps to improve the detection and punishment of fraud in relation to grants and aids, surely this can be better achieved by co-operation between member states in the sharing of information and evidence, and access to information, rather than by the creation of a supranational prosecuting body.

It is suggested that there should be harmonisation of criminal procedures if there is to be an EPP office. The problems with harmonising procedures have been confronted by the courts in this country in the context of the ECHR. For example, Articles 5 and 6 of the convention have had to be interpreted by the courts as to whether they respect or are in total harmony with the right to a fair trial and the right to protect suspects. The courts have had considerable difficulty in the attempt to try to harmonise systems with different origins. It is not impossible that there could be a real conflict between the CPS and its view of what is within its province and the national prosecutor for the European public prosecutor trying to do the same thing.

If a future Government want us to join in with the establishment of a new EPP office, I suggest that the case should be made to Parliament and to the British people. It may not be their everyday obsession, but they should and can be educated, and not just by the Daily Express, about the question of a European public prosecutor. It is an important matter that goes to the fundamentals of justice. This amendment seeks to take away the safeguards that are fundamental to the Bill and to the philosophy underlying it.

[Lord Triesman]

My Lords, we on this Bench have a great deal of sympathy with the noble Lords, Lord Kerr and Lord Hannay, and much of what I say will probably reflect some of the arguments they have made. Like many other noble Lords, I have found this grouping about as unhelpful as it could possibly be. It mixes together propositions that would reduce the scope for referenda, propositions that would increase the scope for referenda, and does not deal with any of the principles that might guide a move in either direction. So, as briefly as I can, let me summarise what I think the amendments we are discussing actually are. In the midst of all the Second Reading speeches we have heard, we probably ought to try to focus on the amendments.

The first amendments, from Amendment 30 onwards, which the mover of the amendment did address, discuss the situations under which a referendum and Act are required and seek to limit the issue of whether the UK should adopt the euro as its currency. That is to some extent elaborated in further amendments. From Amendment 32 onwards we see amendments that would remove the requirement for a referendum and an Act on the list of Clause 6 decisions and change them so that they would simply require an Act of Parliament. That is a proposition where this Front Bench also has an amendment, and with which I strongly agree.

Indeed, in some of the discussions, including the one just introduced by the noble Lord, Lord Faulks, I have found it hard to understand the rationale for the proposition that has been made at all. In almost every area that has been described, the Government would plainly have the capacity to say no and to insist on unanimity. If we wished to reject a proposal to change our judicial system, and I can see perfectly well why we should argue that that might be the case, we should—to paraphrase the wife of a recent American president—just say no. It is not hard; it is not a complicated piece of electoral practice. Just say no. There are a number of areas where it is perfectly possible to do so.