Justice and Home Affairs Opt-out

Andrea Leadsom Excerpts

Monday 7th April 2014 Commons Chamber

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

Today’s debate is one that the Home Secretary and Justice Secretary did not want to have. They have been forced into it by the three Select Committees because time and again they have tried to avoid coming to Parliament, avoid providing information to Parliament and avoid having a vote. The Select Committee on Home Affairs told them:

“we have been disappointed with the extent and timeliness of the Government’s involvement of Parliament”.

The European Scrutiny Committee described the Government’s approach as

“a serious omission as well as a missed opportunity to inform the debate in Parliament and beyond.”

The Select Committee on Justice summed up its report by saying

“we criticise the ‘cavalier fashion’ in which Parliament has been treated.”

The Home Secretary was in cavalier mode again today, because although she announced the opt-out in July last year and the Select Committees reports came out in October—we can presume that she has been negotiating since then—we had today no update on the progress of the negotiations, no sense of the timetable and no sense of when the vote will be called. We have to wonder what the Home Secretary has to hide. The truth is that she is hiding because this whole opt-out, opt-in is a massive con. She has done a U-turn again on the main measures, and is opting out and opting back in to them again. The only measures she is staying out of are ones that were largely redundant in any case, and what she is doing is a complex negotiation with our European partners, which is playing games with European security co-operation: “We’ll pull the arrest warrant out; we’ll put the arrest warrant back in. We’ll in out, in out, shake it all about. Play the opt-out hokey cokey, and you turn around. That’s what it’s all about.”

[Andrea Leadsom (South Northamptonshire) (Con)]

rose—

[Yvette Cooper]

I will give way to the hon. Lady, who is a member of the Fresh Start group and who, I am sure, must have been very disappointed with the Home Secretary’s conclusions.

[Andrea Leadsom]

Does the right hon. Lady regret the fact that the previous Government did not give the British people a say before they signed up to the Lisbon treaty, which created the muddle this Government have had to try to deal with?

[Yvette Cooper]

I must say to the hon. Lady that we do not think that it is a muddle to have co-operation with European police forces to bring criminals to justice and to provide victims with justice. I know that the Fresh Start group, of which she is a leading member, thought that we should replace all of this with a new international treaty. The Chair of the European Scrutiny Committee and many Government Back Benchers wanted to opt out and stay out of everything. The last time we debated the subject, a queue of Members stood up to say how much they wanted us to opt out and stay out of not just the European arrest warrant but all the major measures.

--- Later in debate ---

[Yvette Cooper]

The hon. Gentleman points to a series of areas where the Government have proposed opting out or where it is not clear why they want to opt out and what the benefits are of doing so. We gather, too, that the Austrians, the Germans, the Spanish and the French have all called for the UK to opt into other measures as part of the negotiations. In addition to the list of 35 measures that the Home Secretary wants to opt back into, they list a further 13. The Home Secretary and the Justice Secretary should tell us whether they support those 13 measures or whether they will make them a red-line issue and call a halt to the negotiations if other countries insist on them so that a deal can be negotiated by 1 December.

The British head of Europol, Rob Wainwright, is worried about Britain opting out of some of the Europol regulations, because the new ones that the Home Secretary is prepared to support are not ready yet. He told the Select Committee on Home Affairs:

“I don’t think it is likely the new regulation will enter into force before December 2014 so there is likely to be a gap and, if there are not sufficient transitional measures in the meantime, then those accompanying eight measures would leave a gap, frankly, in terms of UK capability to carry out its work against international organised crime and terrorism.”

The Home Secretary should tell the House what she is doing about that, because it sounds serious and concerning. Has she put those measures back on her list to opt back into, and has she drawn up transitional measures?

We need to know, too, how much time and diplomatic resources the negotiation has taken up. For the remainder of the negotiating period, Italy will hold the presidency of the Council, and we understand that the Home Secretary is trying to persuade the Italian Government to make this a major priority and allow time for the European Council to negotiate. She should tell us if she really sees that as the top priority for the Council, and how many of her officials have to work on the issue, as opposed to the more substantial matters on which we should argue for reforms, such as changing the rules so that we do not have to pay child benefit and child tax credit for children abroad; or changing the rules on free movement for new accession states; or revisiting the posting of workers directive to strengthen protection for workers; or other things that would be worthwhile reforms in Europe. Instead, they are working on the power to opt out of a guidance document that we already follow. This is one of the most incredible examples of the gap between rhetoric and reality that the Government have come up with.

[Andrea Leadsom]

rose—

[Yvette Cooper]

I shall give way one last time.

[Andrea Leadsom]

Will the right hon. Lady clarify for the benefit of the House whether the Opposition would invoke the opt-out or not?

[Yvette Cooper]

We debated this last year when we had the vote. We do not object to the opt-out in principle. We negotiated it so that Britain would have more time to look closely at the measures. We said last year that the most important thing was to be in the European arrest warrant. We said then that we would not exercise the opt-out without guarantees that we could opt back into the European arrest warrant and other measures.

In the end, this is about serious measures. Crime does not stop at the border, and criminals do not stop at the channel. Fighting crime and getting justice for victims depend on co-operation across our borders. Most people in Britain want our police and intelligence services to work with other forces abroad to share information, to track down dangerous offenders, to rescue abducted children and to stop online child abuse.

I want the House to hear the words of Beatrice Jones, who was the mother of Moira Jones, of whom I have spoken before in the House. She said:

“I have been appalled to read that a group of Tory MPs is putting pressure on the Prime Minister to use his right to pull out of EU crime and policing, including the EU arrest warrant. You may remember that my beloved daughter Moira Jones was assaulted, abducted, and savagely raped and murdered by an EU national who was allowed to come here . . . He fled the country but because of the dedication and determination of Strathclyde police, along with the cooperation of the Slovakian police, he was arrested and extradited back to this country. . . there is more cooperation and information between a much greater number of EU states . . . We want it to go much further so that another murder like Moira’s cannot occur . . . EU police cooperation is essential for the safety of all.”

That, in the end, is what this debate should be all about. The Home Secretary should be proud of that co-operation. The hard work of police forces across Europe and the commitment of victims groups working across Europe—that is what we should be celebrating and applauding today.

--- Later in debate ---

[Andrea Leadsom (South Northamptonshire) (Con)]

I start by commending my right hon. Friend the Home Secretary for her courage in tackling this problem, which stems from the previous Government’s failure to give the British people their say on whether Britain should sign up to the Lisbon treaty. That were really the background to today’s debate: the previous Government negotiated, in the Lisbon treaty, the potential for Britain to opt out of the justice and home affairs measures, and that is what the Home Secretary made her announcement about last year. The problem is that, as with all EU matters, this goes to the heart of the democratic accountability of the EU and the issues relating to national sovereignty in Britain, which give people in this country so much concern today.

I am one of the co-founders of the Fresh Start project, which was established in 2011 to examine in detail what could make the EU more globally competitive, more democratically accountable and more flexible. The justice and home affairs question profoundly affects issues of democratic accountability and flexibility. We are in a halfway house where we have invoked our opt-out on pre-Lisbon-treaty measures and are now trying to opt back in to 35 of them which we consider very important for British national interests.

My right hon. Friend the Home Secretary said when she announced that she was going to look at exercising the opt-out that

“we will consider not just opt-ins and opt-outs but the other opportunities and options that are available.”—[Official Report, 15 October 2012; Vol. 551, c. 41.]

She has said:

“First, the Government could apply to rejoin measures within the scope of the 2014 decision”—

which is the block opt-out, and that is indeed what she is doing.

She continued:

“Secondly, the Government believes that in some cases it would be possible to rely on pre-existing Council of Europe Conventions or bilateral treaties….Thirdly, in some cases it may be possible to negotiate bilateral treaties with each Member State or with the EU that would effectively replace the instruments in question…. Fourthly, in some cases there may simply be no need for any such agreement to be in place in order for there to be cooperation.”

The difficult position the UK finds itself in relates to the block opt-out and what happens once we have signed back up to 35 measures. In written evidence supplied at the end of 2012 to the relevant Sub-Committees of the House of Lords European Union Committee, the Government stated that the “practical effect” of the ECJ “gaining full jurisdiction” in the areas of the “re-opted in” measures

“after the transitional period—

from 1 December 2014—

“is that the ECJ may interpret these measures expansively and beyond the scope originally intended. This concern is compounded by the fact that the ECJ has previously ruled in the area of Justice and Home Affairs in unexpected and unhelpful ways from a UK perspective. For example, in 2008 in the Metock case, the Court made a ruling which extends free movement rights to illegal migrants if they are married to an EEA national who is exercising free movement rights. Since the Metock judgment we have seen a steady increase in sham marriages involving EEA nationals.”

It should also be noted that the ECJ would start applying its human rights jurisprudence, drawing on the EU’s charter of fundamental rights, to the UK criminal justice system within the areas falling under EU policing and criminal justice laws that bind the UK. It is, therefore, extraordinarily difficult to decide what exactly Britain should do in its best national interest on these justice and home affairs measures. Of course the Home Secretary has decided that it is in our national interest to opt back in to 35 of them, and I suspect that she has decided that in great part as a result of the clear advice from the House of Lords European Union Committee, which said in 2012:

“We recognise the theoretical possibility for the United Kingdom to conclude multiple bilateral and multilateral agreements with the other Member States, in place of some existing EU measures, and that other Member States would have an interest in putting effective mechanisms in place. But this would be a time-consuming and uncertain process, with the only claimed benefit being tailor-made arrangements excluding the CJEU’s jurisdiction. In some cases new bilateral agreements would be dependent on the legislative timetable of the other Member States, which may accord them a low priority.”

It went on to say:

“We consider that the most effective way for the United Kingdom to cooperate with other Member States is to remain engaged in the existing EU measures in this area.”

[Jacob Rees-Mogg]

I am hugely enjoying my hon. Friend’s speech. Is she saying that the House of Lords, in its great wisdom, has come to the conclusion that it is better to sacrifice an important part of our constitution for the administrative convenience of our bureaucracy, because to address matters one by one would give it too much work?

[Andrea Leadsom]

Actually, yes, my hon. Friend is right. I made a similar point to members of the scrutiny Committee. He is right that there is an element of, “This is all too difficult, so we should not embark on it.” I have had such points made to me by other officials in this place, who seem to say that, as this is all so difficult, we should opt back in to existing measures. If that were the case, it would be entirely unacceptable.

Let me quote the European Union Committee:

“If the United Kingdom reverted to Council of Europe Conventions instead of the equivalent EU measures, this would raise legal complications, and could also result in more cumbersome, expensive and weaker procedures. It would also weaken the ability of the United Kingdom’s police and law enforcement authorities to cooperate with the equivalent authorities in other Member States regarding cross-border crime.”

In other words, it concluded that it would be easier and probably more successful for the UK to opt back in to JHA under the current terms, having opted out of all those other measures that Opposition Members have been keen to point out are not terribly important or relevant anyway. That is possibly the right step for the time being, but there are bigger issues at stake: democratic accountability to the British people, and flexibility.

Under the eurozone fiscal crisis, it became very apparent that eurozone members needed to move to greater fiscal integration, European banking union and, potentially, down the road towards a federal states of Europe. Opinion polls, discussions in this House and even Opposition Members have made it clear that Britain’s national sovereignty should remain intact, and that we do not intend at any time soon either to join the euro or to move on to the path of greater fiscal union or, indeed, a federal states of Europe.

With that thought in mind, it seems that the status quo in the EU is simply not an option. Right across the European Union, the democratic legitimacy of the EU is wafer thin. We will see in the European elections in May what European citizens—if there were such a thing, which there is not; it is merely shorthand for the citizens of EU member states—think about the ever closer union in the EU. I suspect that we will find that they also reject the concept of a federal states of Europe. That has profound implications for what we do here in this Chamber. When the Prime Minister comes to look at the fundamental reform that will be in Britain’s much better interest, he should look at the area of justice and home affairs with a view to considering whether we can undertake bilateral or multilateral agreements with EU member states or with the EU as a legal entity, which it is now under the Lisbon treaty. Of course, the advantage of having bilateral treaties with the EU rather than opting into justice and home affairs is that things would be easier for Britain as a uniquely different member state with common law practice rather than a written constitution, even if those agreements were worded in precisely the same terms as the European arrest warrant or the Europol and Eurojust directives, as the European Court of Justice would not have jurisdiction over them and they would not be able to be changed under qualified majority voting without the say so of this House.

The area of justice and home affairs goes to the heart of the democratic accountability of the European Union and ought to be a key focus for the Prime Minister’s review of how Britain can achieve a better settlement within the European Union once our party has won the 2015 general election.

[Chris Bryant (Rhondda) (Lab)]

That was a good joke at the end.

It seems to me that there are an awful lot of ironies in this debate. The biggest irony of the lot must be that last week the Deputy Prime Minister and the leader of the UK Independence party got themselves all in a lather about the European Union, as apparently the whole country is fixated on this issue, yet the attendance in the Chamber this afternoon is remarkably poor, considering that this is an issue that many have described as vital to British liberties and so on.

The second irony is that even as we are talking about democratic accountability, as the hon. Member for South Northamptonshire (Andrea Leadsom) just did, the Government have tabled a motion on the Order Paper which will mean that Mr Speaker cannot call an amendment to the Queen’s Speech. The hon. Lady may want to sign an amendment to that motion later today—[Interruption.] I am sure that the hon. Member for Bury North (Mr Nuttall), if he has not signed it yet—[Interruption.] He has signed it.

It is an irony, is it not, Madam Deputy Speaker—I do not expect you to answer this rhetorical question—that these two things are being debated at the same time? We are condemning Europe for not being an elected organisation and for the democratic unaccountability of the Commission and all the rest of it, even though we have Members of the House of Lords who have never put themselves up for election—except when they were Members of the House of Commons, before they went down there to take the Whip. We condemn the European Union for its lack of democratic accountability, and then the processes we use in this place to debate precisely what we should do about opting in or out of the justice and home affairs segments are put forward in a way that is wholly undemocratic and are used as a means of the Government trying to mask the fact that they cannot unite those on their Benches.

There is a third great irony that I have really loved. It is fascinating to watch so many Conservative Members of Parliament holding their noses throughout their speeches on the European Union. There is a permanent state of holding one’s nose exercised by Conservative MPs around the country. I was in High Wycombe last week, and the hon. Member for Wycombe (Steve Baker) held his nose magnificently throughout all the discussions of the policy on the EU. The first question was about whether there was any real chance of renegotiating the treaties with the EU, and he started off by saying, broadly speaking, “Well…um…it is…um…I support the Government’s policy—until such time as I shan’t.” As I understand it, that is basically the speech made by all the Conservatives who have spoken thus far, apart from the hon. Member for Bury North, who did not go that far. He is not even holding his nose; he is just announcing that there is a smell out there and that he does not support the direction the Government are going in.

I do not start from an ideological position on all this. It seems to me that there is a pragmatic question about whether it is in the interests of pursuing justice for the people of our country that we should associate and co-operate and to what degree we should do so with other countries in the European Union. That pragmatism must be informed by the fact that it is now far easier for people to travel abroad within the European Union. One in four Brits goes to Spain every year and one in six goes to Greece every year. The number of British people who come into contact with the criminal justice system of other countries within the European Union has therefore dramatically increased.

One statistic that is not often mentioned by Mr Farage is that the country with the largest number of its citizens living elsewhere within the European Union is not Poland, Germany or France, but the United Kingdom. Anything we can do to ensure that justice is available in other EU countries and that justice is secured for people in this country must be to their benefit.

[Andrea Leadsom]

The hon. Gentleman must accept that that argument does not stack up. Let us look at the number of people who travel to the United States or Mexico every year. Is he seriously suggesting that there ought to be some common justice system among those states as well? He is arguing from a weak position.

[Chris Bryant]

No, I am not. The hon. Lady complained that the Government and Members of the House of Lords advanced their argument on the European arrest warrant only because it was more convenient and practical. I am trying to suggest that convenience and practicality are three quarters of the point. In the end, it is in the interests of British people.

I shall take the American point as an example. When the new extradition treaty was agreed between the UK and the United States of America, despite the fact that the American Government—the President—had negotiated the treaty, it was a significant problem that the legislature had to put it in place. We moved much more quickly in this country to ratify the treaty than the Americans, and there was a period when the provisions were not perfectly equal between the two countries and when people such as the hon. Lady who argued that there was an imbalance were right. That is no longer the case, because both countries have implemented the measure.

My point to the hon. Lady is that long before we had the European arrest warrant, a Conservative Government under Mrs Thatcher were painfully aware of the problems of not having a proper extradition system across the whole European Union, where most British people do most of their travelling. That is why we had Ronnie Biggs and many others stuck on the costa del crime in Spain. Franco would not extradite anyone.

[Chris Bryant]

I shall give way to the 16th century in a moment.

I wholly support the European arrest warrant on the same basis that Mrs Thatcher supported the European convention on extradition.

[Andrea Leadsom]

rose—

[Chris Bryant]

I cannot give way to the hon. Lady because I have to give way to the 16th century.

[Chris Bryant]

I realised that there might be some clever soul in the Chamber. The hon. Gentleman is absolutely right, but there were plenty of other British fugitives from justice who only had to go abroad to evade justice in this country, and we needed a better system of extradition to be able to get British nationals back to the UK to face justice and, for that matter, to do something similar for nationals of other countries.

I would say to Members who regularly say that this is about protecting British people from poor judicial systems in other European countries that, in the main, we bring non-UK citizens back to the UK to make sure that there is justice for families who have lost a loved one or who face some form of injustice. I wholly disagree with the ideological position adopted by some Government Members, because it is pragmatic to have a single system that works across the whole of the EU. I also think that it is a triumph that, despite the fact that the Napoleonic code and English common law are completely different systems, we can work, broadly speaking, in a united way.

[Andrea Leadsom]

My point was not that we should not be party to the European arrest warrant; nor was it about the convenience of being in or out of it. It was about the method by which we are party to it. In other words, do we do it via a bilateral treaty which, as the hon. Gentleman rightly pointed out, we have with the United States, or should we opt in to justice and home affairs, which come under the jurisdiction of the European Court and can be changed under qualified majority voting without any say-so from the House?

[Chris Bryant]

I understand the point that the hon. Lady makes, but the problem for her argument is that that option is not available. For that matter, why would we want to say that members of the European Union, which includes two members of the Commonwealth, can all sit around a table and discuss the European arrest warrant, but we will only be able to sign up to it on a bilateral basis? That makes no sense and it is not a system that other members of the European Union will sign up to.

There is a further point, which is my concern about the process that the Government have adopted: we may get to December and not have any new agreed system in place. I know many members of the European Commission want a new system. Some countries in Europe are so profoundly irritated by the way the United Kingdom has been playing its hand over the past few years and are so concerned about the long-term direction of Conservative members of the Government in particular that they would quite like to punish Britain. I fear that we will not have the opt-ins in place by the time the opt-outs have come into force, and as the hon. Member for Perth and North Perthshire (Pete Wishart) said, we may well have a substantial period when there is nothing in place. That could raise very significant legal issues about how we would subsequently resolve that, and it would also put us in the difficult and embarrassing position of having to say to our citizens, “We’re sorry. We are not able to extradite back to this country because we opted out and we have not managed to get the opt-in back in place.”