Presumption of Innocence and EU Law

Andy Slaughter Excerpts

Monday 10th February 2014 Commons Chamber

[Mr Andy Slaughter (Hammersmith) (Lab)]

I will try to follow the Minister’s example and be commendably brief—I do not anticipate being intervened on by Labour Members very often this evening.

I begin by complimenting the European Scrutiny Committee and its Chair on the rigour and clarity that they bring to this matter, contrasted as it is—it saddens me to say so to this Minister—with the pusillanimous response of the Government until this evening. The Committee’s report rightly states:

“It is difficult to overstate the significance of the Commission’s proposal. It brings the law of the presumption of innocence, as laid down by the European Convention of Human Rights (ECHR) and in the constitutional or national laws of Member States, into the realm of EU law, which has supremacy over national law, for all criminal offences. In so doing it sets out certain rights which go further than the interpretation of similar rights in the ECHR by the European Court of Human Rights, and so creates separate standards of procedural safeguard under EU and ECHR law. A domestic consequence of this is that UK laws on drawing adverse inferences from a failure to cooperate or from maintaining the right to silence, which are compliant with the ECHR, would be in conflict with EU law, and so subject to Commission infringement proceedings and severe financial penalty if not amended.”

That must be right. These are matters of central importance to the liberty of the subject, the rule of law and, above all, the right to a fair trial. This is a country where those seminal legal concepts have developed over centuries. It is right that the Secretary of State is commemorating 800 years of Magna Carta, although it is sad that his alienation of the legal profession means, as we learn today, that there may be a boycott of his global law summit next year. By the same token the law, specifically the common law, has developed differently here from how it has on the continent. There will be significant differences in our approach from that of Roman law jurisdictions. But that does not mean we should not try to establish certain minimum standards in areas as fundamental as the presumption of innocence and the specific requirements set out in the articles of the draft directive.

The matters dealt with in that directive—the right not to be presented as guilty; the burden of proof resting on the prosecution; the right to remain silent; and the fact that the scope of those should go from the very start of proceedings until the final judgment is delivered—are right. I hope the Committee and the Minister are as alarmed as I am to see that 11 member states appear to have fallen below the standards demanded by the ECHR. One reason for our strong support—I believe this is still shared by the junior coalition partner—for the convention is the levelling-up effect it has on human rights across Europe.

The problem with translating that alarm into this legislation is, as the Committee identifies, twofold. First, it is not the difference in standards or the falling short per se that provokes the draft directive, but the alleged effect that has on confidence in the judicial systems in states that are failing. There is anecdotal evidence to support that; indeed, much of the debate about the European arrest warrant focused on worries about the criminal justice system in the extraditing state. However, as the Commission itself concedes, there is “limited statistical quantifiable evidence”, and that is not a good basis for such a radical restructuring of European criminal law.

Radical though the draft directive may be—this is the second problem—it goes beyond what the ECHR demands. For example, under the Police and Criminal Evidence Act 1984 and subsequent legislation, it is permitted in English criminal courts to draw inferences from the silence of the accused. The burden of proof does not always lie on the prosecution, and the right to representation, interpretation and translation varies at different stages of the criminal process. I do not seek to defend the law in its current form by saying that, but I do say that the directive is not the means by which to open a wholesale review of those and other provisions of the criminal law.

The Commission has not made its case on subsidiarity, it has not produced evidence, and the consequences of the proposal go beyond what is countenanced in the Commission’s arguments. The Government, taxed by the European Scrutiny Committee, have fallen in line with that view at the eleventh hour, so the Minister, whether for a quiet life or because it is easier to adopt the arguments in the reasoned opinion, has taken the path of least resistance.

It is a pity, however, that legislation is being made in such a way. The Committee is trenchant in its criticism of the Government, concluding:

“We repeat again our disappointment at the poor quality of the Government’s EMs on the three proposals forming the Commission’s procedural rights package, particularly in the light of the time taken to draft and deposit them.”

This is not an isolated incident, as last month the regulatory policy committee described the Ministry’s impact assessment on court fees as “not fit for purpose” in a rare red report. Just before Christmas, the Secondary Legislation Scrutiny Committee referred to several explanatory memorandums accompanying statutory instruments as “less than satisfactory”. Last week, the new Minister of State, Ministry of Justice, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), at last conceded that the number of mediations taking place was falling significantly, which was something that the Justice Secretary repeatedly denied.

In the case of the draft directive, I appreciate that, as with the other examples I cited, we got our corrections eventually, albeit not without a lot of digging. It took a strongly worded letter from the Chair of the European Scrutiny Committee on 15 January to elicit some but not all the facts needed from the Secretary of State. The Under-Secretary of State for Justice, the hon. Member for North West Cambridgeshire (Mr Vara), had to write to the Chair of the Secondary Legislation Scrutiny Committee to apologise for and reissue the defective explanatory memorandums. Can he offer some explanation for the poor quality of legislation, statistics, reasoning and clarity coming out of his Department? I suspect it is due in part to the swingeing cuts in staff and low morale, but there might be other reasons that he wishes to offer.

While we share some of the Commission’s concerns about the standards adopted by a number of EU countries regarding the matters dealt with by the draft directive, we do not think the directive is the route by which to correct them. We will not oppose the reasoned opinion, but we note that it is the European Scrutiny Committee, not the UK Government, that has led on the issue, and that does not bode well for sound governance.