Criminal Procedural Rights (Opt-in Decision)

Lord Grayling Excerpts

Tuesday 18th March 2014 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Chris Grayling)]

I beg to move,

That this House takes note of European Union Documents No. 17621/13 and Addenda 1 to 3, a draft Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, No. 17633/13 and Addenda 1 to 3, a draft Directive on procedural safeguards for children suspected or accused in criminal proceedings, No. 17642/13, a Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, and No. 17635/13 and Addenda 1 to 3, a draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European Arrest Warrant Proceedings; and agrees with the Government that the UK should not exercise the opt-in to these measures.

I am pleased that the European Scrutiny Committee has called this debate, as these potentially important matters are of interest to Parliament and the public. The three proposals to be considered today all flow from the Stockholm work programme agreed in 2010, and two of them flow directly from the criminal procedural rights road map agreed in 2009 and later confirmed in the Stockholm programme. We have been presented with three directives, which appeared at the same time and which share a common date of 19 March for a decision on whether the UK will opt in. The decisions are individual and specific to each proposal.

I can tell the House that we have considered each proposal carefully. In line with the coalition agreement, we have looked at the potential benefits and disadvantages of UK participation to the national interest on a case-by-case basis. We asked ourselves whether it is in our national interest to be bound by any or all of the proposals, and we have concluded that it is not. The motion is therefore clear that we are minded not to opt in to any of the proposals, and I of course look forward to hearing the views of the House this afternoon.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I congratulate my right hon. Friend on his absolutely right decision, but can he confirm that it is the intention of Her Majesty’s Government not to opt in at any stage?

[Chris Grayling]

I was going to make reference to that. I can confirm that we have agreed that we will not participate in the first and third item at any stage. We have agreed across the coalition that we will take a look at the second item in the discussions that take place. We will participate in the negotiations, but I say to the House this afternoon that I do not expect, at the end of that process, any change to the decision that we are proposing, which I hope the House will endorse this afternoon.

I have also given our officials permission to take part as observers in the negotiations on the other two measures, because, naturally, I am keen to ensure that our European partners take sensible steps, too. It is right and proper that we should be aware of what takes place, but I could not conceive of a situation where we could consider taking part in the presumption of innocence and the legal aid matters. Therefore, it is not our intention at any stage to participate.

I was glad to see that the European Scrutiny Committee has also concluded that the UK should not opt in to the proposals, so we are of one mind on them. It is also worth highlighting that we are considering these three measures alone today, and that the Government continue to engage with the Commission on wider 2014 measures. I will briefly discuss the possible pros and cons of each proposal, as it is important that the House understands the basis for our decisions and the proposal we are putting to it this afternoon. First, I wish to make a general point relevant to each of the proposals. Each of them would of course apply to all criminal cases in the UK. None is restricted to cross-border cases. That means that if we accept any of the proposals, we also effectively agree that, henceforth, the relevant matters of internal procedural law will be determined at an EU level rather than here. In addition, the highest court overseeing the implementation and interpretation of the rules would thereafter be the European Court of Justice and not any UK court. That is, of course, true of all EU laws, but it is important to bear that in mind as we consider the proposals.

I remind the House that the agreement we reached on the 2014 measures is that we do not believe that Britain should be part of a European justice system. We do not believe in the harmonisation of court and legal procedure, and our decisions reflect that view. I do not agree with those who wish to create such a unified system. Other member states are free to do so if they choose, but we have decided that this country should not be part of such an approach.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

The process that my right hon. Friend has described raises another problem, and I wonder whether he shares my view on it or approaches it from a different perspective. The proposals open up the possibility of conflicting decisions between the European Union system and the European convention on human rights on a number of issues. What happens in Britain has passed the test of the ECHR, but it would not necessarily pass the tests set in the proposals.

[Chris Grayling]

That is a very valid point, and my right hon. Friend is right to raise it. As he knows, we have different perspectives on the European Court of Human Rights, but he has highlighted one of the incongruities that will exist if we simply hand over jurisdiction in such crucial areas to the European Court of Justice, because there are some clear contradictions between European measures and those set out in the convention. Whatever our different perspectives in the coalition, we share that view of the problems that may arise from such Europeanisation of law.

[Mr William Cash (Stone) (Con)]

I am grateful for my right hon. Friend’s concluding remarks to the Chair of the Select Committee on Justice, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). The difference between the ECHR and the European Court is that according to section 3 of the European Communities Act 1972, when a decision has been taken under that section, it is binding on us. Our Supreme Court cannot change that law, and there is no opportunity to appeal. That raises the whole question of who governs the United Kingdom in that area.

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[Chris Grayling]

My hon. Friend highlights an area about which I am concerned, and on which there are perhaps disagreements within the coalition. Although there are democratic checks on the court system in this country—if Parliament does not agree with a Supreme Court ruling, it has the option of changing the law accordingly—the same is not true of international courts.

We have a lively discussion in the coalition about our future relationship with the ECHR, but if we start to hand over key elements of the working of our justice system to the ECJ, there is a real danger that in an attempt to harmonise, we will lose some of the things that make our system strong. There is no doubt in my mind that English, Scottish and Northern Irish law are highly regarded around the world, and I would not want to see them internationalised. If that happened, the distinctive features that make London, Edinburgh and Belfast attractive legal centres might be less pronounced than they are today.

[Geraint Davies (Swansea West) (Lab/Co-op)]

Does the Secretary of State agree that there is a case for minimum standards for the treatment of child defendants, and for people to have the right to appear in court and to be considered innocent until proven guilty? What is wrong with that? Why should other people not share those values?

[Chris Grayling]

In some respects, the hon. Gentleman is right, and that is what we do in this country. The question is whether he believes we should hand over future decision making about our judicial process and court process to an international court over which we have no control. He and his party clearly think that we should. I do not, and that is one of the things that divide us.

[Mr Douglas Carswell (Clacton) (Con)]

I applaud my right hon. Friend’s wise and sensible decision, and I am particularly pleased to hear him say that the national interest is paramount in the consideration of such matters. I note his decision, and I say, “Very well done.” Can he do more to ensure that some of his ministerial colleagues are as wise and sensible when considering other opt-ins to ensure that this outbreak of sensible decision making is consistent across the board?

[Chris Grayling]

I will do my best.

Let me touch briefly on the three measures. The first relates to the presumption of innocence. The proposal does not flow directly from the road map; it stems from the invitation in the Stockholm work programme for the Commission to consider whether issues not explicitly included in the road map—such as the presumption of innocence—might have a bearing on the mutual trust between member states.

It is very much a matter of regret to me that, in response to an invitation to consider that matter, the Commission concluded that legislative action was necessary. Even if it had concluded that something had to be done—that is a matter for debate—there are alternatives to new legislation or common EU rules. I say this as there seems to be very little evidence of need for the proposal or for common EU rules in this area. That point seems to be acknowledged in the Commission’s own impact assessment, which notes that quantifiable evidence of any problem is scant. In the light of that, I wonder why it has still proposed common rules.

This has been a matter of particular interest to the House of Commons European Scrutiny Committee, in the context of the proposal’s compliance with the subsidiarity principle. I note that the Committee issued a reasoned opinion on the matter, and it is a shame that it did not manage to secure support from other Parliaments in doing so. I want to see the Commission paying a little more attention to the yellow card system than it has been doing recently.

[Mr Cash]

My right hon. Friend will recall that, on the question of the public prosecutor, the threshold was crossed but, even then, the European Commission decided that it would go ahead. Does he not regard that as an extraordinary situation? Does he agree that the yellow card system has been severely vitiated as a result?

[Chris Grayling]

I attended the Justice and Home Affairs Council at which this issue was discussed, and I have to say that there was extensive disquiet among member states. If the Commission wishes to be credible, it cannot simply ignore the system that was put in place by the Lisbon treaty in the way that it did in that particular case.

Let me turn to the second item on the list, which is the proposal on child defendants. By any assessment, I consider the UK arrangements for dealing with and helping children who become engaged with the law enforcement agencies and with criminal proceedings to be very good. There is a raft of specific provisions in place in the UK to assist children in those situations, and we wholeheartedly support the principle that children in those circumstances need to be treated differently from adults in some respects, given their particular vulnerabilities.

Beyond the general principle behind the proposal, however, and given that the UK’s current arrangements provide a significant degree of protection as good as that available anywhere else, the proposal presents significant difficulties. First, the definition of a child in the proposal is set at those under 18 years of age. In England and Wales, the procedural protections provided to suspects and defendants based on their age are varied to reflect the specific circumstances of their case. Article 1 of the United Nations convention on the rights of the child—to which the UK is a signatory, and to which the coalition Government undertook to give due consideration when making new policies and legislation—contains the same definition. In the context of the courts, prisons and the probation service, those under 18 years of age are treated as children and young people. However, there is a different approach for when the police deal with 17-year-olds under the Police and Criminal Evidence Act 1984, when, for practical reasons, 17-year-olds suspected of committing an offence are for some purposes treated as adults. Clearly, that would be an issue in regard to these proposals as well. The position in Scotland stands in even clearer contrast to the proposal, as it tends to treat younger people—that is, those aged 16 and above—as adults for these and other purposes.

[Keith Vaz (Leicester East) (Lab)]

rose—

[Chris Grayling]

I give way to the Chairman of the Home Affairs Committee.

[Keith Vaz]

I agree with what the Lord Chancellor has said this evening. Does he know whether we have been able to persuade any of our EU partners to adopt the very sensible practices and procedures that we have adopted in respect of children?

[Chris Grayling]

At the moment, this is in the early stages. One reason that we agreed to participate in the negotiations—albeit expressing up front our intention not to opt in—was to allow precisely that kind of discussion to take place. I have nothing to be ashamed of in relation to the way we manage our affairs in this country, although I understand that improvements might be needed elsewhere. My sole concern is that our rules should not be subject to the jurisdiction of an international court over which we hold no sway.

[Mr James Clappison (Hertsmere) (Con)]

I am grateful to my right hon. Friend for giving way and I am sorry that I missed the very beginning of his speech. I warmly welcome the course that he has taken today. Is not the point that these matters are part of our arrangements in this country—in England and in Scotland—and should be decided here in this Parliament, subject to debate, representations from our constituents and election, and not by the European Union?

[Chris Grayling]

That is the point. We have 800 years of legal tradition in this country. It has evolved in a number of different ways and is subject to change and review in both the courts and our Parliament. I do not really feel that we need to bring a third body into that relationship. To my mind keeping the European Court of Justice at arm’s length over these matters is absolutely where we need to be.

[Geraint Davies]

On that point and the point made by my right hon. Friend the Member for Leicester East (Keith Vaz)—with which I do not agree, incidentally—the age of criminal responsibility in Britain for children is 10, which is far younger than elsewhere in Europe. Children are required to go to a full criminal court. Surely there is something to be learned from others, or are we too arrogant to listen?

[Chris Grayling]

The hon. Gentleman and I are on different sides of the House. When we disagree on different issues we can debate them in this House. If it is his view that the age of criminal responsibility in this country is too low, it is perfectly reasonable to articulate that in this House, to bring forward measures that could change that, and for us to debate it. My issue is that that is a decision for this Parliament and not for elsewhere, which is why I am taking the view I am this afternoon.

It is also worth saying that the proposal seeks to establish that any deprivation of a child’s liberty must be as a matter of “last resort”. The notion that children should not be detained unless necessary causes little difficulty in the UK, but it is obvious that it introduces a different test from that which currently applies in England and Wales in which children are deprived of their liberty if it is considered necessary—during a police investigation or on remand awaiting trial. That would also have to be subject to reconsideration if we were to opt into this measure and could lead to significant changes, which should be a matter for this Parliament and not for anyone else.

Given that the UK has one of the most comprehensive and generous legal aid regimes in the world, it will perhaps not surprise this House that our analysis suggests that our current practice—in England, Wales, Scotland and Northern Ireland—means that we are already compliant with the majority of the provisions of the proposed directive. We might, therefore, argue that as it does not ask much change of us, it would be fine to opt into it. However, it does require some change. It requires changes to procedures around the entitlement of somebody who is subject to a European arrest warrant to receive legal advice both in the country of arrest and the country that is seeking arrest. That would have small financial cost for us, but it is, none the less, a financial change that would be imposed on us. It would not be a priority area for us to increase legal aid spending at a time when the legal aid budget is, for necessary reasons, under enormous pressure.

It is not necessary or appropriate for our legal aid system to come under international rules. The level and nature of spend should be subject to a decision in this House. It should be a matter for Parliament. I do not think that we should pass over ultimate jurisdiction over our legal aid rules to the European Court of Justice, which is why I have said clearly that I cannot conceive of a situation in which we would wish to opt into this. I am therefore not prepared at this stage to leave that door open. It is not what this Parliament or this country want. I will not try to pretend otherwise. Let us be clear and up front and say that this is not something of which we wish to be a part.

[Geraint Davies]

Perhaps the right hon. Gentleman can confirm the estimated costs of that measure in terms of added legal aid costs. My understanding is that it is just £200,000, compared with his budget of £7.5 billion. It is not significant, so he is talking about the principle rather than the money.

[Chris Grayling]

I just said that it was not a large amount. It is a question of principle. Do we want decisions about legal aid entitlement to be taken in this Parliament by Government, scrutinised by the Select Committees of the House and by Parliament itself, or do we want to subject ourselves to an uncertain international jurisdiction that may, at a later date, decide that we have to do things in a wholly different way from the customs and practices in this country, often with a cost that is simply not budgeted for? My view is that we do not want that, and I propose that we do not accept that.

I have set out here in both general and specific terms why the proposals present difficulties in the UK, why, in their current shape, we could not support them and why we conclude that we should not opt into any of them. There is, of course, a question about negotiability, and these texts are not final. They may be open to changes in discussions in Brussels, which may improve them, but our assessment at this stage must be taken on the basis of the presented text; we have no other basis. It is of course possible that the proposed directive will change for the better in negotiation, but it is also possible that it could change in a way that make things even more problematical. We do not know for sure. We face a new Commission and a new Parliament in the summer. The Lisbon treaty provides co-decision making to the European Parliament. Matters relating to these directives can be amended in that Parliament and could theoretically impose costs on us that are absolutely not budgeted for.

It seems to me that the scale of our difficulties with the current proposals on the presumption of innocence and legal aid are such that it is difficult to foresee any realistic prospect of negotiating them to a conclusion that the UK could now accept. They are simply too far away from acceptability. Although we will continue to monitor the forthcoming negotiations, we will be clear about our position at the outset. I hope that that clarity will be useful to the House and that the House will support it this afternoon.

The proposals on child defendants also present significant difficulties and I do not underestimate them. I think it is pretty unlikely that we would be able to secure changes that would make them acceptable or better. That is why we are recommending this afternoon that we should also indicate that we will not opt in. I have instructed officials that they should participate in the negotiation to see whether changes made at a later date would be advantageous to this country. I am not convinced that that will happen, but I have left it open as a possibility. That was what was agreed across the Government.

I will ask my officials to work closely with interested Departments, including the Home Office and the Foreign Office, to ensure that the message is communicated effectively to our EU partners and is factored into wider engagements on matters such as the 2014 decision. My view is that the proposal I am laying before the House this afternoon is in the national interest. I have considered carefully the different measures and I am very clear that it is not right for the UK to opt into them, but it is important that this House has its say. I hope that the House will endorse that approach and that everyone in the Chamber will feel that it is right to accept our proposals and support the motion.

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[Mr Slaughter]

That is the purpose of this speech, if the hon. Gentleman will bear with me. In relation to the draft directives on children’s rights and legal aid, the insurmountable hurdles that apply to the presumption of innocence directive do not apply. The difficulty we have tonight relates to some important questions, such as what will the cost be; what are the implications for UK legislation, meaning what would have to change; how far are they necessary harmonising measures; and how far do they fall into the same trap as the presumption of innocence draft directive, meaning how far do they exhort us to do something, rather than actually harmonising. It is quite difficult to say.

Let me explain what I mean. If we look at the very belated letter from the Government on the cost of these measures, we see that, in relation to the draft directive on safeguarding children’s rights, it is estimated that transporting 17-year-olds after being charged to local authority accommodation for overnight detention would cost £2.1 million. A breakdown of that figure shows that an estimated additional 5,200 places in local authority accommodation would be required each year in England and Wales, at a cost of approximately £395 a day for each 17-year-old suspect. With all due respect to the Lord Chancellor, those figures look as though they have been drawn up on the back of a fag packet. They were dreamt up at the last minute because the Committee was quite rightly pressing the Department to come up with a decision and some reason for it.

With regard to legal aid, as my hon. Friend the Member for Swansea West (Geraint Davies) pointed out, we are told that the net monetised discounted cost impact of the article over a 10-year appraisal period, if we opt in to the directive, is estimated to be between £1.5 million and £5 million, with a main estimate of around £2 million. That would equate to an undiscounted cost of approximately £200,000 per annum. Again, it looks as though—I think the Lord Chancellor effectively admitted this—we comply with those proposals. There would not be a great cost in opting in, but it is best to “big it up” and make it look worse than it is. I am afraid that I just do not trust what is in those documents.

[Chris Grayling]

My main concern about these measures, as I have said, is the fact that opting in to them would mean passing over jurisdiction to the European Court of Justice. Will the hon. Gentleman tell the House whether his party thinks that it is appropriate for the European Court of Justice to have sway in areas such as legal aid? He seems to be saying that it is not a big deal. Does he accept that the European Court of Justice should not have sway, or does he think that it should?

[Mr Slaughter]

I do not accept the argument that everything that comes out of Brussels is necessarily evil or inimical to the interests of this country, which appears to be the bizarre position that the Lord Chancellor has painted himself into. Uncharacteristically, we will sit on our hands tonight in relation to two of the draft directives. To answer his question directly, I do not rule out any future opt-in, as of course the Government do not in relation to the directive on access to a lawyer, because I understand that their position is that they still might opt in. Even with the spin that he has put on it, I understand that for at least one of the draft directives there is a possibility that negotiations will lead to an opt-in. I welcome that pragmatic approach. It is a conservative approach, but it keeps the door open, rather than taking the radical approach that the Lord Chancellor would like to be seen to be taking.

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[Chris Grayling]

I thank all Members who have contributed to the debate. I am delighted to discover that there is a consensus across the House on the approach that we have recommended, although it seems not to include the hon. Member for Swansea West (Geraint Davies).

We heard some interesting contributions. Having quoted from comments that he made two years ago in the Law Society Gazette, the hon. Member for Hammersmith (Mr Slaughter) compared regime change in the Ministry of Justice to regime change in Crimea, which may be considered to have been a slight exaggeration. He then agreed with us, although I note that he did not answer my question about whether he shared our concern about the jurisdiction of the European Court of Justice and the implications for our own legal position of signing up to measures of this kind, given that, if we do so, jurisdiction will pass from our courts to the ECJ.

I apologise to the three Select Committees for the delays that have occurred, but they will understand that, in this day and age, there are a number of debates to be had—in this Parliament, in Brussels, and sometimes in Government—before we finally reach a decision that can be presented to the House. I will always endeavour to ensure that information is given to Committees in a timely way, but I am sure that my hon. Friends will agree that it is better to have the right decision than to have an early decision.

[Sir Alan Beith]

That is true, but it is better still if, rather than our waiting until the Government have finally formed a view, the support and help of Committees is obtained at an early stage in the process.

[Chris Grayling]

I entirely accept that. We will try to ensure that we do what we can to supply the right information to Committees in the future.

The right hon. Member for Leicester East (Keith Vaz), who is no longer in the Chamber, made the valuable point that we should be cautious about the issue of jurisdictions. That is what lies behind my concern about measures such as these. It is important to understand that an opt-in is not—as was implied by the hon. Member for Swansea West—a simple process. It is not just about setting an example to the rest of Europe. It is about accepting the jurisdiction of an international court in regard to important areas of law. As was pointed out by my hon. Friend the Member for Stone (Mr Cash), there is no right of appeal following a ruling from the European Court of Justice. My hon. Friend also rightly observed that our judiciary are increasingly concerned about the role of international courts. On a number of occasions recently, they themselves have suggested that decisions that should be made in our courts and our Parliament are now being dealt with on the international stage. It is clear that that is causing some discomfort to at least some of them.

[Geraint Davies]

Will the Justice Secretary confirm that the Government are still negotiating on the issues of children’s rights in courts and legal aid, and that those negotiations have not been stonewalled?

[Chris Grayling]

We have told our European partners—and will do so again if the House approves the motion tonight—that we will not take part in negotiations on the first and third directives, on the presumption of innocence and on legal aid. We will say up front that we do not intend to opt in, either now or in the future. That is a decision that has been agreed across Government, and one that we do not intend to reverse. We will provide observers for the negotiations, but they will not participate in detailed negotiations. As I said, on the second directive involving children we do not intend to opt in; we will indicate that up front. We will participate in the negotiations in case, although it is unlikely, something emerges that this House may want to consider again, but it remains the Government’s position that we do not expect, nor want, to have to opt into the directive, but we will sit around the table while it is negotiated.

There is clearly a broader issue here about minimum standards measures. As my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) pointed out very articulately, what we must understand is that we have a different legal system from the rest of the European Union. The hon. Member for Hammersmith made the same point. If we accept minimum standards measures, step by step they take away the ability of this Parliament and of our courts to shape our justice system. If we decide on any occasion to opt into such a measure, it is of paramount importance that we understand the implications of doing so.

[Mr Cash]

To add to that point, the other member states by and large have written constitutions, while we operate by a process of precedent through the common law. In many respects that would change were we to move to a system that enveloped us within a framework of European Union law, which would change the nature of the decision-making process. As my right hon. Friend so accurately says, this is a huge change because it is about jurisdiction, interpretation and the rights of the individuals who are affected.

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[Chris Grayling]

My hon. Friend is absolutely right, and that is why I fundamentally disagree with the Commissioner who set out her vision a few days ago for a European common justice area by 2020. I do not believe that is right for this country. I believe there are areas where it is important to collaborate with our partners in fighting international organised crime, but I do not want to see our justice system, which commands respect around the world and brings extensive legal business to London, subsumed into something that is Europeanised. That is why I draw a very clear line, in consideration of European measures, between those that are essential in dealing with the real issues of cross-border crime and those that are about subsuming our system into common processes. I am thinking in particular about the presumption of innocence aspect, which to my mind intrudes clearly into the ways of working in our courts. I am pretty confident that a large part of our judiciary would not wish to see the processes they follow each day shaped by decision making at European Union level.

I am very clear that I do not want the UK to be part of these measures. I am glad to have received the support I have in the House tonight. I hope that the House will endorse the approach that we are taking to keep us outside the three measures.

Question put and agreed to.

Resolved,

That this House takes note of European Union Documents No. 17621/13 and Addenda 1 to 3, a draft Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, No. 17633/13 and Addenda 1 to 3, a draft Directive on procedural safeguards for children suspected or accused in criminal proceedings, No. 17642/13, a Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, and No. 17635/13 and Addenda 1 to 3, a draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European Arrest Warrant Proceedings; and agrees with the Government that the UK should not exercise the opt-in to these measures.