EU Justice and Home Affairs Measures

Chris Heaton-Harris Excerpts

Wednesday 19th November 2014 Commons Chamber

[Chris Heaton-Harris (Daventry) (Con)]

Is the Home Secretary surprised, as I am, that the shadow Home Secretary’s speech was all about procedure, not the policy area? She did not mention the fact that one major concern of a number of us on the Government Benches is that we are ceding powers to the European Court of Justice for the first time, and therefore taking away some parliamentary supremacy. I would like to hear the Home Secretary’s views on that.

[Mrs May]

My hon. Friend is absolutely right and I am well aware that for a number of right hon. and hon. Friends the jurisdiction of the European Court of Justice is key. I have been clear—as I was in previous debates—that the issue of our relationship with the European Court of Justice should be in the work that we will do as a Conservative Government after next May’s election to renegotiate our relationship with the European Union. That, of course, is not in the motion tabled by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) today, and there is no reference to it or to the overall opt-out issue.

I think I am right in quoting the right hon. Lady as saying that the opt-out was an opt-in, opt-out “hokey cokey”. I remind her that that opt-in, opt-out hokey cokey was negotiated by the previous Labour Government. I am not sure from her comments whether she now supports our decision to exercise the opt-out, which, as I have said, the Labour Government negotiated, voted against last year, and have never said whether or not they would use. Is she congratulating the Government on successful negotiations in Europe and bringing back a deal that is good for the UK? Does support for our package mean that she supports the return of around 100 powers from Brussels and the largest repatriation of powers since this country joined the EU?

I am pleased that today’s motion supports all 35 measures, because last time the Opposition called a debate on this matter in June last year they highlighted only seven measures that they wanted us to rejoin. The list did not include Eurojust, which the right hon. Lady has now said that she supports, or the prisoner transfer framework decision, which allows us to send foreign criminals home to serve their sentences. It also left off the asset recovery office, which allows law enforcement to pursue the criminal proceeds of crime.

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[Mrs May]

We have not yet notified the European Union. [Interruption.] Someone says, “Why?” It is partly because the timetable has not required us to notify the European Union by that point.

Thirdly, under the convention, we would return to a system where 22 other member states would not extradite their own nationals to the UK and where, owing to constitutional bars, there would be no hope of that situation changing for some countries. In the last five years alone, those 22 states have extradited 105 of their own nationals to us to stand trial. That would end if we returned to the 1957 convention, and victims, and their families, would suffer as a result.

The convention would also mean that, if there is a long delay between the offence occurring and the extradition request being made, extradition can be refused because of the length of time that has passed under a state’s statute of limitations.

[Chris Heaton-Harris]

Will the Home Secretary give way?

[Mrs May]

May I first give a concrete example of that? Last month, Philip Gordon Knowles was jailed for eight years after being found guilty of four counts of gross indecency with a boy under the age of 14 and eight counts of indecent assault on a girl under the age of 16 in the St Helens area in the 1970s. His conviction followed his extradition from Spain using the arrest warrant. In an earlier age, Knowles would have escaped justice. Under the 1957 European convention on extradition, the length of time that had passed between his offences and his extradition being requested would have rendered him immune to prosecution by the Spanish authorities, and he could not have been extradited. It is thanks to the arrest warrant that Knowles is now behind bars.

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[Chris Heaton-Harris]

I thank the Home Secretary for giving way to me a second time. She has made two cases—the reason for opting in and what would happen if we went back to the 1957 protocols—but there were other choices. A couple of years ago, there was the chance to try to have a bilateral treaty with the EU, or indeed individual member states within it. Equally, as the treaties stand, there are transitional arrangements under which the current arrangements could continue. Could she comment on those? I know that the commonly held view in her Department was that the transitional arrangements would be quite short, but I have gathered from the European Commission that they could go on for quite some time. I would appreciate her view on that.

[Mrs May]

My hon. Friend has raised two important points. I will address both of them. He refers to the temporary transitional extension. The option that is proposed to extend that transitional period for a significant time would require secondary legislation to override the primary treaty right of the UK to opt out of measures and would effectively override the opt-out itself. That is a precedent that no one would want to set. A transitional decision is proposed by the European Commission. We have no vote on its adoption. We would have no power to amend the drafting of the decision and it could extend to all 135 measures and make them subject to ECJ jurisdiction to boot. That would effectively hand over our power on this matter to Brussels, which would determine it for us. I think that that would run entirely counter to our aim of bringing powers back from Brussels.

The other point is that it has been clear in discussions we have been having with the European Commission that the purpose of the transition arrangement was, for a very limited period, potentially to ensure that while the process of opting in was taking place there was no operational gap, so that we would make sure there was no point at which it was possible for somebody to claim that an arrest warrant, for example, was no longer operational as a result of the decisions we had taken.

In relation to the suggestion that we could have negotiated a separate treaty with the European Commission, reference is often made to the Danish position on that, but in fact that is different as the Danes have no alternative option for participating in the JHA measures. Protocol 36, the opting-out decision protocol, sets out our ability to opt out and to rejoin these JHA measures, so it puts us in a different position. The EC argues that that provides us with an adequate ability to go into these measures, and therefore renders a third-country agreement unnecessary.

Given my hon. Friend’s interest in European Court of Justice jurisdiction, the other point I would make is that in all the measures Denmark has negotiated separate arrangements on with the EC, it has been required to submit itself to the jurisdiction of the ECJ. That has been the price of getting the negotiated agreement with the European Commission, so I really do not think it is an option that resolves the issues my hon. Friend and others have concerns about.

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[Chris Heaton-Harris (Daventry) (Con)]

It is a great privilege to follow a true Eurosceptic.

In my brief contribution I do not intend to expand on my concerns about the individual measures. In fact, I would welcome a number of the individual measures in this package if we were able to have the final say on them in this House and in our judicial system. But I worry about it happening in one sweep with little debate about the principle of why we are taking away parliamentary and judicial sovereignty in the area of justice and home affairs and allowing the European Court of Justice to have the final say. I am a bit surprised that that did not rate a mention in the shadow Home Secretary’s opening speech, given that it is such a big issue.

To help me to prove my point about the direction of travel that justice and home affairs matters are taking in the European Commission, I should like to quote the former European Commission vice-president, Viviane Reding. She has said:

“In the space of just a few years,”—

since the three pillars were collapsed—

“justice policy has come into the limelight of European Union activity—comparable to the boost given to the single market in the 1990s. We have come a long way, but there is more to do to develop a true European area of Justice”.

We do not talk much about that in the House. The closest we came to having a proper discussion on it was when we were talking about the European public prosecutor’s office in our debates on the European Union Act 2011, in which we discussed referendum locks. I think that all the parties agreed that that was an area of concern and a red line that we would not cross—all the parties bar the Lib Dems, of course. Now, however, the establishment of the policy is part of the EU area of justice. We must not mistake the direction in which we are heading.

Why am I concerned about giving Europe the ability to enact and police legislation in this area? Most of the EU operates under a different system of law from ours, and I do not believe that the European Commission is the body that should be making the UK’s and England’s criminal law. The European Court of Justice should not have the ability to override the primacy of this Parliament or of the English judiciary in these areas. The ECJ has become so prominent because almost everything the European Union does tends to become legally binding and eventually subject to review by EU judges or national courts acting on their behalf. That reflects a European tendency to move difficult political conflicts, such as the eurozone crisis and the EU’s 2013 fiscal compact, away from ministerial gatherings and towards apolitical groups of national experts, the legal realm and the courts.

Member states are discussing plans for a European public prosecutor, which may be created among a core group of countries under the Lisbon treaty. The European Parliament is helping to design jail sentences for rogue traders and people who do wrong in financial institutions, and the European Commission will start taking EU Governments to court over criminal justice standards from December 2014 onwards.

[Mr Bone]

My hon. Friend is making a really powerful speech. Will not tonight’s decision also signal to the country the views of MPs in relation to the European Union?

[Chris Heaton-Harris]

Quite possibly.

The EU now has well over 150 mainly framework decisions in the area of justice and home affairs, many of which involve intergovernmental accords. The Commission cannot yet enforce those accords and EU nationals cannot yet claim rights based on them. However, the Lisbon treaty allows framework decisions to be enforced before the courts in the same manner as single market legislation, but only after December 2014—the same time as our proposed block opt-in. We are not even opting back in to the justice and home affairs system as it operates today; we are opting in to something quite new. None the less, the ECJ has already produced around 50 judgments to do with police and justice co-operation. That is because 19 member states have already voluntarily accepted the Court’s jurisdiction, to enable their own courts be clear as to the exact scope and meaning of each individual EU crime and policing agreement. December 2014, which is just a couple of weeks away, will still represent a watershed. The ECJ will start to create a jurisprudence in an area that really should be a matter for the British courts, the British Parliament and British justice. I am afraid that I shall have to vote against the motion this evening.