EU: Eurojust (EUC Report)

Lord Hodgson of Astley Abbotts Excerpts

Monday 4th November 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am a member of Sub-Committee E and support the proposal ably moved by our chairman, the noble Baroness, Lady Corston. We return tonight to the issue of European co-operation in judicial and criminal investigative matters. The topic is of course a veritable Rubik’s cube of interwoven advantages and disadvantages, and trying to establish the pattern that will best suit this country is very difficult, especially for a non-lawyer such as myself.

As the noble Baroness has pointed out, the pattern of the Rubik’s cube has changed in the past week with the decision of this House and the other place to issue a reasoned opinion on the grounds of subsidiarity against participation in the European Public Prosecutor’s Office. I spoke in the debate in favour of that decision on theoretical, legal and operational grounds. We heard in that debate from the noble Lord, Lord Rowlands, who introduced the subject, of growing concern among other states about the proposal. As I understand it, from what the noble Baroness has said and from what the noble Lord, Lord Rowlands, told us in our committee meeting earlier this week, since then concerns have been found to be even more widespread and substantial than was originally thought—indeed, so substantial that it appears that the EPPO proposal in its present form is now effectively dead in the water. The Minister might like to confirm whether this is the case and the Government so assess it when he comes to wind up.

If so, this removes one of the Government’s major objections to the Eurojust proposal—that it implicitly provides a stalking horse for the development of the EPPO, the interweaving of the organisation which we describe in paragraph 40 of our report. We say:

“As we have noted, the proposed Eurojust Regulation includes significant provisions which interweave the two institutions both corporately and operationally. Viewed in the context of the Government's policy of non-participation, this might point towards the UK electing not to participate in the negotiation of the Eurojust Regulation”

The next question really is whether the Government have some other principled objection to Eurojust in any form. It would appear that they cannot and do not. First, because this country has been part of the Eurojust set up ab initio, as the noble Baroness pointed out, and secondly, because although the Eurojust regulations fell within the subjects covered by the opt-out afforded to us by the treaty of Lisbon, having exercised that opt-out, the Government have already announced that they propose to opt back in to those parts that cover Eurojust.

As to the operational need for a co-ordinating mechanism such as Eurojust, one only has to reflect on the increasingly global nature of crime and, in particular, what one might call the new crimes such as cybercrime which flit from country to country, indeed from continent to continent, and require a very highly co-ordinated international response.

I have had the honour to serve on one or more of the EU Sub-Committees of your Lordships’ House for several years. An abiding feature of inquiries focused on activities to combat EU cross-border crime has been the value ascribed to what they call joint investigation teams or JITs which are, of course, established under and by Eurojust. It would be a shame for this country not to be in a position to aid their further development by not participating in the negotiations on these future regulations.

That leaves two final issues which could underpin the Government’s apparent plan not to opt in to this proposal. First, there is the proposed change to the structure and governance of Eurojust. I find it hard to believe that this country should not opt in to a body on the sole grounds that an executive board should replace a management board with a director. It seems to me to be arguing about a distinction without a difference. Secondly, there is the different nature of our legal system compared with those of most of our fellow EU members—in short, the adversarial as opposed to the investigative approach. I recognise this challenge and I see why the Government have drawn our attention to it in their explanatory memorandum. However, since the UK has been involved in Eurojust for some 10 or so years, these do not appear to have been insuperable problems in the past and I see no reason why they should be so in the future.

I am forced to conclude that Eurojust is an organisation which has proved its value in the past, evidenced by the Government’s decision to opt in again to the existing regulations. The major threat implicit in the regulation we are discussing tonight was the introduction of the EPPO, but that is not now going to happen. In my view the Government ought to take advantage of this changed mood among our fellow EU members to opt in and to ensure that this regulation is fashioned to the advantage of this country. Otherwise, having avoided participating in the negotiations, we may find ourselves having to accept a directive that has not been fashioned in the manner most advantageous to this country. It is also hard to understand how we are going to be able to opt in to old Eurojust—that is, the existing regulations—and not participate in the new Eurojust that will result from the proposals now under consideration.

When John Maynard Keynes was once asked about why he changed his mind, he famously said when circumstances change I change my mind, what do you do? Circumstances here have changed dramatically with the EPPO and since the Government reached their preliminary conclusion, I hope that my noble friend will persuade Mr James Brokenshire that this was a mistaken approach and we ought now to participate and ensure that these regulations are taken forward to the best advantage of this country.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, I thank the noble Baroness, Lady Corston, and the European Union Committee, many of whose members have spoken in this debate, for bringing forward this Motion and for their work on this report. As noble Lords have said, we were here a week ago to debate the issue of the European Public Prosecutor’s Office when the House concluded that it should issue a reasoned opinion against that proposal as it breached the principle of subsidiarity. Today, we have turned to the related matter of the opt-in decision triggered by the European Commission’s parallel proposal for a Eurojust regulation. We have had a full debate and I have listened to it with great interest.

The Government’s view is that the UK should not opt in to the draft regulation on Eurojust at this time and we should conduct a thorough review of the final agreed text to inform active consideration of opting in to it, post adoption, in consultation with Parliament. I am pleased to say that a Motion to that effect was agreed in the other place last week. It has been very good to have the support of the noble Lord, Lord Rosser, expressing the Opposition’s view that this presented the right approach in the interests of Parliament and of Government.

The Government have said clearly that we value the current Eurojust arrangements, which is why we are seeking to rejoin them as part of the 2014 opt-out decision. I can only agree with the noble and learned Lord, Lord Hope of Craighead, and all other noble Lords who have pointed out the merits of the current Eurojust arrangements. Moreover, prior to the publication of the new Eurojust proposal, we said consistently that there was no need to reform Eurojust at this time; indeed, the Security Minister in the other place, James Brokenshire, made that case clearly at the 10th anniversary of Eurojust last year.

Current legislation is still undergoing a peer evaluation, which will not be complete until next year, and the Commission has not put forward a convincing case as to why the new proposal is needed. However, regrettably, it has come forward with a new Eurojust proposal that contains a number of substantial concerns. In particular, as the European Union Committee’s report elegantly describes, the Eurojust proposal is interwoven with the EPPO proposal. The reforms proposed to Eurojust would see deep connections made to the EPPO with operational, management and administrative links between the two bodies. At this time we cannot be certain either about the shape of the EPPO proposal itself—not least given the subsidiarity yellow card that has been issued, as we know, as a result of our debate and debates in other parliaments—or how the relationship between the EPPO and Eurojust might ultimately be defined.

I say to the noble Lord, Lord Elystan-Morgan, that our concerns articulated in this House last week have not gone away. To update the noble Lord, Lord Rowlands, who asked where we were now as a result of last Monday, the number of votes from national parliaments on the EPPO means that the Commission must now review its proposal. Officials speaking on behalf of Commissioner Reding, however, have interpreted this as being the majority of national parliaments not opposing the proposal. It would be a huge mistake no longer to consider the EPPO presenting a risk for the new Eurojust proposal. That is our view of the situation at the present time. The Government therefore believe that it would be extremely and unnecessarily risky to bind ourselves to the European Public Prosecutor’s Office through our participation in the new Eurojust proposal at the start of negotiations. This would be a needless risk when we can review our place in Eurojust upon its adoption.

The new Eurojust measure also proposes to create new mandatory powers for Eurojust national members—powers which would enable them to require coercive measures at a national level. The current Eurojust measure works well and it does not force member states to give their national members such extensive powers. The new proposal unnecessarily removes this discretion. These proposals would cut across the division of responsibilities and separation of powers between police and prosecutors in England, Wales and Northern Ireland. It is quite clear that these proposals would conflict with the role of the Lord Advocate in Scotland, who has been at the apex of the Scottish criminal justice system since at least the time of the first recorded holder of that office, Sir John Ross of Montgreenan, in 1483. Before this debate I had no idea that the office so ably held by my noble and learned friend Lord Wallace of Tankerness had such ancient roots.

The evidence that the Lord Advocate gave to the committee was on the existing Eurojust measure about which there is no dispute among us—it is a valuable measure—not the new proposal. That evidence is therefore not relevant: the new proposal might actually undermine the role of the Lord Advocate. It was following consultation with the Scottish Government that we came to our view. On consultation, we have consulted the devolved Administrations in Scotland and Northern Ireland. They have told us that they understand our reasoning and they would not seek to demur from our proposed approach. The concern in relation to the Lord Advocate’s role follows consultation with the Scottish Government. Our clear view is that we should not opt in to the new Eurojust proposal at the start of negotiations because the risks it presents are unacceptably high for our criminal justice system arrangements.

I hope that I can also allay some of the concerns expressed in the European Union Committee’s report that we might “miss out” on these negotiations. Indeed, in introducing the debate, the noble Baroness, Lady Corston, made such remarks and they have been reinforced by the speeches of the noble Baroness, Lady O’Loan and my noble friends Lord Hodgson of Astley Abbotts, Lord Stoneham of Droxford and Lady Hamwee. All have talked in terms of our missing out or not being involved in the negotiations. I assure noble Lords that where we do not opt in at the start of negotiations we will nevertheless be actively involved. Not only will we be present in the negotiating room at all levels, we will be able to intervene as and when we wish. If we do not opt in to this measure now, we will nevertheless be at the negotiating table energetically representing our interests, and we will be able actively to consider opting in post-adoption based on the final text and the further views of Parliament. I hope that reassures noble Lords that this may be an opt-out or a non-opt-in to the revised proposal but it is not an opting-out of our responsibility to negotiate and make a success of Eurojust, which it has been for all participating countries in the past. I assure noble Lords that we will vigorously represent our views on both the Eurojust and EPPO measures.

Moreover, as your Lordships may be aware, Ireland has also said that it will not opt in to the Eurojust proposal at the start and, of course, Denmark cannot participate in post-Lisbon justice and home affairs measures, so we are not isolated or alone in our position. I reassure the noble Lord, Lord Rosser, regarding the other issues we are concerned about. The coalition agreement is clear that the Government will consider the impact of any of these measures on the UK criminal justice system when considering an opt-in to any measure. We have set out our concerns on that point very clearly and it is an area that we want improved.

I conclude by making clear our commitment to the current Eurojust arrangements—

[Lord Hodgson of Astley Abbotts]

I am extremely grateful to the noble Lord and I am sure that I speak for a lot of noble Lords when I say that I am reassured by the energetic negotiations that will take place around the edge of the formal negotiations, and I hope that they are successful. However, the question we are left with is what happens if the final negotiations are not to our satisfaction. What happens to our membership of Eurojust in its present form? It is hard to believe that our fellow members will allow us to remain a member of Eurojust on the old terms and not accept the new terms which we will have no part—at least, no direct part—in negotiating.