EU Police and Criminal Justice Measures: EUC Reports

Baroness Prashar Excerpts

Thursday 23rd January 2014 Lords Chamber

[Baroness Prashar (CB)]

My Lords, I am a member of EU Sub-Committee F, which is chaired by the noble Lord, Lord Hannay of Chiswick, and I thank him for introducing this debate and for his masterly, clear and comprehensive exposition of this complex and difficult subject and the issues at stake. I agree with what the noble Lord said and the questions he posed the Minister.

As we heard, the scrutiny of the Government’s opt-out decision was conducted jointly by Sub-Committees E and F, and I express my thanks to the noble Lords, Lord Hannay and Lord Bowness, and the noble Baroness, Lady Corston, for their skilful chairing and for enabling the EU Committee to publish the two reports, which the Government have described as,

“an extremely thorough analysis of a complex issue”.

It is, therefore, extremely disappointing that we are debating these two reports so late in the process, when substantive decisions have more or less been taken. Justifiable criticisms have been made by the noble Lord, Lord Hannay, and others about the way the Government have engaged with Parliament, and I very much hope that for the rest of the process there will be timely, proper and meaningful engagement with Parliament and the devolved Administrations.

During the course of our initial inquiry, it was notable that the extensive evidence we took was so overwhelmingly in one direction; that is, opposed to opt-out. The most compelling evidence came from practitioners. As something of a newcomer to the Select Committee, I began to wonder whether the whole thing was necessary. I knew the Government had the right to look at it, but I began to wonder whether, before making the announcement, they should have consulted and saved themselves a great deal of unnecessary work and the unnecessary anxiety that has been caused.

The most compelling evidence came from practitioners. At a seminar organised by the EU Select Committee, Helen Malcolm QC, vice-chair of the Bar Council’s EU law committee and chair of its criminal law sub-committee, said that, as a lawyer and not a politician, she considered it remarkable that every witness with experience in the criminal justice field had considered some of the measures to be vital and that it was equally remarkable that no measure had been identified by anyone as being bad for the UK.

We now have the Government’s response to the two reports. They agree with the conclusion of our first report that cross-border co-operation between the UK and other member states on police and criminal justice matters is crucial. Furthermore, the Command Paper published in July 2013 assessed none of the measures as being harmful to UK interests or having any negative impact on fundamental rights.

The Lord Chancellor and the Home Secretary say that the decision to rejoin 35 measures is based on what law enforcement agencies tell them works, balanced against the Government’s principled concerns about excessive European influence in these areas. A close examination of the reasons why the Government do not intend to opt into some measures, however, shows that concerns about excessive European influence are a dominant factor, rather than the views of the practitioners and the importance of the cross-border co-operation. The grounds on which the Government have made the selection of measures not to join are not necessarily based on evidence or persuasively argued. In some instances, their approach is inconsistent. In the words of the Lord Chancellor and Secretary of State for Justice, they are “philosophical”, and not based on evidence one way or the other.

This inconsistent approach is clear in the case of the Court of Justice of the European Union. Despite expressing concerns about the potentially negative impact of extending the jurisdiction of the CJEU over the measures, the Government have opted into most post-Lisbon police and criminal justice measures, thus bringing with them the jurisdiction of the CJEU. During our initial inquiry, we considered this matter in some depth. We concluded that the CJEU, which has jurisdiction only over matters of EU law, had an important role to play, alongside domestic courts, in safeguarding fundamental rights and upholding the rule of law. CJEU jurisdiction was welcomed by many witnesses as being helpful in ensuring the consistent application and interpretation of police and criminal justice measures, and this is accepted by the Government.

The Government cite the prospect of unexpected judgments, concerns about the drafting of measures, and minimising the possibility of an adverse judgment as reasons for not accepting the full jurisdiction. Any court is liable to make unexpected judgments. Citing poor drafting of measures as a reason for not joining is not convincing, given the rigorous process of negotiation to which these measures were subject and the fact that they were supported by the Government at the time of their adoption.

With regard to minimum standards in criminal law matters, it appears that the Government regard participation in such measures as unnecessary, in the sense that the UK could continue to act in such a way as to fulfil the requirements of each measure even if it did not formally participate in it. This argument does not take into account the fact that any future Government could repeal decisions that made the UK compliant with the current minimum standards. The Lord Chancellor sees these measures as “the Europeanisation of” legal “decision-making” and underplays their practical significance.

For example, Europol said that the minimum-standard measures act to level the playing field for practitioners and eliminate arbitrary differences between jurisdictions. Europol also said that UK’s withdrawal from these measures would remove legal certainty and create a perception among law enforcement practitioners and criminals that the UK is outside the zone of co-operation—co-operation which the Government see as crucial.

In the long run, opting out of these measures would also affect the UK’s ability to influence and participate in law enforcement co-operation. It would diminish the UK’s position and reputation, particularly in areas where it has been a leader. One such measure, which has already been mentioned, is the framework decision on xenophobia and racism. The UK is a world leader in this area and deserves a great deal of credit for its commitment to, and strategy for, tackling racism and xenophobia. We have set a standard, and withdrawal from these measures will send a negative signal, not least to the minority communities in this country, and will inhibit our ability to influence other member states. I therefore urge the Government to review their decision not to join this measure.

On the European Judicial Network, the Government are again at odds with the view of practitioners. The Government say that the European Judicial Network adds little or no value and state that while they believe that the ideas underpinning the network have merit, they do not consider that the network is a measure that underpins practical co-operation. Practitioners argue the contrary. The Law Society of England and Wales and the Law Society of Scotland say that the Government should seek to join this measure as it could help to address the lack of training and awareness of legal practitioners regarding police and criminal justice measures. This view was supported by the Bar Council and the Lord Advocate.

We were told that the network provides Scottish prosecutors with a rich source of advice on national law in other member states and is a valuable tool in the armoury of prosecutors. It is the practical co-operation that is valued by practitioners and the Government should pay heed to that. The Government’s reasons for not joining the European probation order also deserve comment. They say they support the principle behind this measure but do not consider that its benefits outweigh its risks. They say that no evidence has been put forward that outweighs their concerns. The Government’s concern that offenders might not be properly supervised by other countries and that there might be complications should their possible return to the UK arise, can be resolved, as we stated in our report, at European level. Furthermore, the Government have not dealt with the point put forward by the Law Society of England and Wales and the Law Society of Scotland that joining this measure could prove a useful alternative to a European arrest warrant being issued for a sentence imposed in default, thus reducing the potential number of European arrest warrants issued.

In the evidence that we heard, we were also told that this measure would be helpful to offender management and public safety, between Northern Ireland and the Republic of Ireland in particular, and that because there was no meaningful consultation, the unique relationship between the two states has been ignored. This deserves further consideration. Finally, I hope that the Government will take note of the points made in our report about coherence, transitional arrangements, negotiating process and future engagement with Parliament, as well as the comments made by the noble Baroness, Lady Corston, and the noble Lord, Lord Sharkey, about impact statements.