EU Criminal Policy

Crispin Blunt Excerpts

Wednesday 25th January 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

I beg to move,

That this House takes note of European Union Document No. 14613/11, relating to a Commission Communication, Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law; agrees that the primary focus of EU criminal law should be tackling serious crime with a cross-border dimension; and further agrees that the general principles of subsidiarity, proportionality and necessity based on clear evidence must be respected when deciding whether to propose criminal sanctions to ensure the effective enforcement of EU policies.

I am glad of the opportunity to restate that the Government agree with the European Scrutiny Committee that the focus of European Union criminal law should be combating the most serious cross-border crimes. We also agree that in determining whether criminal law is required across the member states, it is critical that the general principles of subsidiarity, proportionality and necessity are respected.

The consequence of the Lisbon treaty coming into effect on 1 December 2009 is that the use of criminal law provisions is likely to increase, as they will be used to support the implementation of European Union policy in areas in which they have not been used before. However, the limits to that are not set in the communication that we are discussing, which is non-binding. Rather, they have a legal basis in the treaty, namely article 83. Paragraph 2 of that article limits the EU’s power, because it sets out that member states cannot be required to criminalise breaches of EU law unless the strict conditions in article 83 are met, and the United Kingdom opt-in will always apply. We have recently seen the first such proposal, on criminal sanctions for insider dealing and market manipulation.

[Keith Vaz (Leicester East) (Lab)]

The fact that we now have a specific example of where there can be co-operation means that we can extend it to other areas such as human trafficking. Does the Minister agree that in the case of specific crimes that cross borders and on which there is agreement, such as human trafficking and terrorism, we need to co-operate better with our European partners?

[Mr Blunt]

I am grateful to the Chairman of the Home Affairs Committee, and of course the answer is yes. Our position on human trafficking and child sex crimes has been to have opt-in, so I can confirm his point.

It appears that in anticipation of the developments under the Lisbon treaty that I have described, the European Commission is seeking to develop some principles to be taken into consideration when the criminal law is used. The Government’s position is that we will approach legislative proposals on justice and home affairs on a case-by-case basis, with a view to maximising the country’s security and protecting civil liberties and the integrity of the criminal justice system. There is nothing in the document that we are debating, which is only a communication, that changes or challenges that fundamental position.

As the House may recall, some time before the Commission communication, in 2009, the European Council agreed conclusions on model provisions to guide its criminal law deliberations. The conclusions were adopted to prevent incoherent and inconsistent criminal provisions in EU legislation, and in anticipation of the changes that the Lisbon treaty would bring.

A number of the Council’s conclusions relating to the assessment of need for criminal law are satisfactorily reflected in the Commission’s communication, most notably the principle that the criminal law be used as a last resort. The adoption of legislation in accordance with the principles of subsidiarity and proportionality is referenced, as is the need to establish necessity.

There are some things that we welcome in the detail of the communication. For example, it acknowledges the UK’s opt-in rights and clearly states that the diversity of member states’ criminal law must be respected. The use of criminal law only when it is a necessary and proportionate response to combating particular conduct is an approach that we apply in our domestic criminal legislation. We are therefore glad that the Commission’s and the Council’s statements reflect those principles.

However, there are potential concerns. The Government believe that it is essential that the Commission propose only European criminal legislation that is necessary and proportionate. Ineffective implementation of a European Union policy should not, in itself, trigger consideration of the use of criminal law.

[Mr William Cash (Stone) (Con)]

Bearing in mind that much of what we are considering will be governed in due course by qualified majority vote, any insistence in this House will be subject to the vagaries of that system.

[Mr Blunt]

Of course, what we are considering is guided by the opt-in principles in the Lisbon treaty under the relevant protocol. The emergency brake, as a final reserve position, then underwrites everything. For example, if we opted in to something at the beginning of negotiations, found ourselves outvoted by a qualified majority vote and the Government then came to a view that what had emerged was unacceptable, the emergency brake would remain available to us to prevent that criminal legislation from applying to us.

[Charlie Elphicke (Dover) (Con)]

To make it absolutely clear, will the Minister confirm that the EU criminal policy outlined in the document would not apply to the UK in any way, shape or form unless or until the UK chose to opt in?

[Mr Blunt]

Yes, I am happy to reassure my hon. Friend that that is the position.

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

Does the Minister recognise, when considering an opt-in or when seeking to establish whether there is genuine necessity, the importance of engaging with the relevant Select Committee at an early stage? The Select Committees, with their specialist knowledge of subjects such as agriculture and fisheries or home affairs, have an opportunity of ascertaining whether necessity has been established.

[Mr Blunt]

As a Justice Minister, I would be extremely unwise not to acknowledge the merits and wisdom of the recommendation of the Chairman of the Justice Committee. My right hon. Friend makes the proper point that there is an expertise in the Select Committees that should be engaged, if possible. Much of the process sits with the European Scrutiny Committee, and we are today making recommendations that the House should consider matters. I shall, of course, leave the detail of process, and the way in which the House should do that, to my right hon. Friend the Leader of the House. However, I hear what my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) says, and I acknowledge the force of his point.

[Dr William McCrea (South Antrim) (DUP)]

The explanatory memorandum on the European Union document acknowledges that responsibility for criminal law matters in Scotland and Northern Ireland rests with the respective Scottish Government and Northern Ireland Ministers. It then states:

“This EM has been cleared by officials in the Scottish Government and Northern Ireland.”

Will the Minister assure me that the Minister in Northern Ireland has been consulted on the matter and that he has had sight of the document before our discussions here?

[Mr Blunt]

I hope that I can return later to the hon. Gentleman’s intervention and give him a full answer.

As I said, there are some potential concerns about the detail of the principles. Ineffective implementation of a European Union policy should not in itself trigger consideration of the use of criminal law. We also agree with the European Scrutiny Committee that it is primarily for member states and their Governments to ensure that citizens can have confidence that they live in a Europe of freedom, security and justice. The European Union’s primary role should be driven by stopping serious cross-border crime.

The Government welcome the further caveats that the European Scrutiny Committee considers should be placed on the communication. The first relates to the European Union not seeking to harmonise extra-territorial provisions across member states. The Government believe that requiring member states to take extra-territorial jurisdiction must be considered on a case-by-case basis, having particular regard to the conduct to be tackled and its impact. We have accepted that it is appropriate to require member states to be able to prosecute their nationals who commit certain child sex crimes or human trafficking offences anywhere in the world. However, we have not accepted European Union rules on extra-territorial jurisdiction based on the nationality of the victim of crime.

The Government also agree with the Committee that we should be cautious about European Union criminal law that seeks to define aggravating and mitigating circumstances. We accepted some aggravating factors in the context of child sex offences or human trafficking. We consider those factors to form part of the agreed minimum sanctions, and, therefore, to be permissible.

The Government are unaware of the previous use of the term “Euro-crimes”, or, indeed, its origin. It is wholly misleading. I want to state clearly that no one will ever be prosecuted under a so-called Euro-crime. The European Union can set only the minimum elements of an offence. Each will have to be implemented in the domestic law of the member states. Hon. Members will understand why the Government view the term as singularly unhelpful. For European officials to use a shorthand internally to refer to crimes about which member states have agreed to establish minimum standards is one thing. For that term to find its way into official documents is another example of jargon that allows misrepresentation and misunderstanding.

[Charlie Elphicke]

I am listening carefully to the Minister. I am slightly puzzled. It seems as though there will be some minimum EU standard for, for example, illicit drug trafficking. However, do not we already have criminal laws in this country that apply to such matters? What would a European dimension add?

[Mr Blunt]

My hon. Friend is correct. However, when it is decided that the principles that we are considering merit the European Union’s taking action—as we have done with child sex offences and human trafficking—we will want to take the opportunity to opt in to EU legislation. That is why we will continue to make the judgment case by case. If it were decided, in the case to which my hon. Friend referred, that there was merit in acting at European Union level, we would doubtless do so. Of course, there could be cases where we felt that our standards were adequate but that our interests were being damaged in other parts of the European Union because drug trafficking was happening that affected our interests, and was not being properly policed. There are therefore circumstances, particularly with cross-border offences, in which there is merit in considering the matter.

The European Scrutiny Committee also asked for the Government’s view of the third sentence of the communication, which states that a

“EU Criminal Policy should have as an overall goal to foster citizens’ confidence in the fact that they live in a Europe of freedom, security and justice.”

The Committee took exception to that as being implausible and unwarranted because the European Union’s role is “helping” member states to stop crime. We agree and note that article 84 makes it clear that the European Union has only a supporting role in crime prevention. It cannot harmonise member states’ laws, except to the very limited extent in articles 82 and 83, which permit setting only minimum standards.

Our aim is to try to ensure that, when the European Union legislates on criminal law, there is convincing evidence that the offending activity constitutes serious and cross-border crime, and that there is consensus that the nature or impact requires common action. I therefore conclude by reiterating our view that it is essential that European Union criminal legislation is proposed only when necessary and proportionate.

It only remains for me to reply to the intervention of the hon. Member for South Antrim (Dr McCrea). Of course, the views of the devolved Administrations are taken into account in opt-in decisions that the United Kingdom then makes.

--- Later in debate ---

[Mr Blunt]

I shall try to respond to the contributions made in the debate, the tone of which has been reasonably consistent, certainly among my hon. Friends sitting behind me. I had rather hoped that the tone of my opening remarks had made it clear that the Government were in a similar place on the issue as the European Scrutiny Committee.

The hon. Member for Hammersmith (Mr Slaughter) gave us the benefit of seven minutes’ consensus during which he managed to avoid expressing an opinion on Euro- crimes and the use of language in the document, which the Government, like the European Scrutiny Committee, feel is unhelpful.

I was grateful to my hon. Friend the Member for Stone (Mr Cash) for notifying me that he could not be in the Chamber for the conclusion of the debate, because he is chairing a Committee of the House. I quite understand why he cannot be here. I think it was a slip of the tongue on his part when he put “breathtaking complacency” and “Government” in the same sentence; I was grateful that he then corrected himself to make it clear that he was referring to the Opposition and the hon. Member for Hammersmith. My hon. Friend subsequently talked about the Government’s support for his Committee’s position and the tone of my remarks about Euro-crimes.

Much of the tone of my hon. Friend’s speech will have been familiar to hon. Members. Indeed, my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), the Chair of the Justice Committee, asked whether he was trying to conjure up a spectre. I sometimes think that it is not so much a spectre that is conjured up in European Union debates as a dementor, given that there is a chill in the air and hon. Members who receive a dementor’s kiss have the soul sucked out of them and find themselves hooked on this issue in a conceivably unhealthy way. However, my hon. Friend the Member for Stone has consistently and properly pointed out the possible ramifications of such communications from the European Union, and Conservative Members returned to that theme time and again. I therefore want to reinforce the fact that a solid defence of our position underpins the debate and that we are equipped with the scepticism that my hon. Friend the Member for Stone and other hon. Friends expressed.

The way in which the right hon. Member for Leicester East (Keith Vaz), the Chair of the Home Affairs Committee, began his speech was evidence to support the truth of the Matthew Parris theory that Parliament is full of schoolboys and schoolgirls who were bullied during their time at school and then take extended revenge on their school mates. I will leave others to draw their own conclusions on where the “Slaughter, Vaz” quip to which he treated us puts the hon. Member for Hammersmith on the scale of bullies or the bullied.

The right hon. Member for Leicester East confirmed the point made by my right hon. Friend the Member for Berwick-upon-Tweed that no one is calling for a comprehensive system of European criminal law, despite what can be adduced from the Commission’s communication. Given that the right hon. Member for Leicester East is a former Europe Minister, I might have anticipated that he would take the position that he did. On human trafficking, it is clear that the point is around the need to address structures and systems, but we have also opted into law in that area. I take his point about data and assure him that data protection is being considered in the coming days by the European Union and the Council of Europe.

My right hon. Friend the Member for Berwick-upon-Tweed reminded us that we have a duty to keep up with cross-border crime and the development of new crime patterns. We have chosen to opt into various measures under the Lisbon framework, so that we keep pace on crime, as appropriate. He drew attention to what we face in 2014 with the 133 measures that were adopted pre-Lisbon. Of course, we will not make any premature decisions and we will consider carefully the practical implications of all the options. The Government are committed to holding a vote in both Houses before they make a formal decision. We will conduct further consultation on the arrangements for the vote, especially with the European Scrutiny Committee, the Justice Committee and the Committees of both Houses that consider home affairs. We will make a formal announcement on the process in due course. My hon. Friend the Member for Esher and Walton (Mr Raab) was also clear about the substance of the decision that we will face in 2014.

I listened carefully to the suggestion made by my right hon. Friend the Member for Berwick-upon-Tweed about UKRep engaging with Select Committees to give them notice of any European Commission business coming down the track in which they might like to take an interest. One must tread carefully with such things, given the question of what is the prerogative of the Executive and what is that of Parliament. We would not want to get to a position at which it was seen that the Executive were seeking formally to engage parliamentary bodies on their behalf. His Committee’s role is to hold my Department to account, and it is for Parliament as a whole to hold the Government to account, so I will reflect on his suggestion and invite my ministerial colleagues in the Foreign Office to read his remarks and consider whether there could be a satisfactory way forward.

My hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) reminded us, in his usual stentorian tones, about the dangers of the intrusion by others into a mature legal system. Hon. Members will have noted his learned warning about the effect of opt-ins. He made it clear that he shared the general approach taken by my hon. Friend the Member for Stone and set out the underlying caution that we should always exercise on such matters. I hope that he understood from my opening remarks that that is precisely what we do. I believe the present arrangements enable us to do that, not least the oversight exercised by this House and the European Scrutiny Committee.

As well as making points about the 2014 decision, my hon. Friend the Member for Esher and Walton reinforced the general remarks made by my hon. and learned Friend the Member for Torridge and West Devon and asked about our current position on the European arrest warrant. The EAW was the subject of a review by Sir Scott Baker, to which the Government will respond in due course.

In tone, the remarks made by my hon. Friend the Member for Dover (Charlie Elphicke) were similar to those of other hon. Friends, but I thought that the intervention made my hon. Friend the Member for Loughborough (Nicky Morgan) made quite clear the case, which he acknowledged, that we need to take a case-by-case approach, as the Government have pledged to do. As the hon. Member for Dover, he commended the co-operation on drugs trafficking, but there is a basic problem with the proposition he advanced: either we will find measures, on a case-by-case basis, where it is appropriate and in the interests of the UK to co-operate at European Union level, and we will proceed on that basis as we do now; or he and others will present that to the House as a cynical list establishing the principle of where we should co-operate, in order to open up the possibility of our being compelled to co-operate on matters where we are not compelled to do so. In his presentation of the process, however, my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) neglected to remind the House of the existence of the emergency brake. If all else fails—if we have opted in, taken part in the discussions and voted but have been outvoted on certain measures—and the matter is serious enough to constitute a fundamental assault on our criminal jurisdiction, we can exercise the emergency brake under the Lisbon provisions and thereby establish an opt-out.

I thank the House for this debate. It is clear that the Government and the European Scrutiny Committee are of the same view: we consider that European legislation in the field of criminal law should be contemplated only as the last resort and only where action at the European level is absolutely necessary. We also clearly agree that European Union criminal law proposals should have regard to the principles of subsidiarity, proportionality and, importantly, necessity based on clear evidence. Those principles are vital. The European Commission’s communication makes it clear that, although it seeks to develop a consistent approach to the use of criminal law, those principles continue to form part of the considerations even of the Commission—to echo the tone of some of the speeches made today.

The Government will continue to examine the content of European Union criminal law proposals and our participation in them on a case-by-case basis, entirely in line with the coalition agreement. In line with our commitments to Parliament, we shall also continue to engage with the European Scrutiny Committee on any EU criminal law proposals, as they come forward. I commend the motion to the House.

Question put and agreed to.

Resolved,

That this House takes note of European Union Document No. 14613/11, relating to a Commission Communication, Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law; agrees that the primary focus of EU criminal law should be tackling serious crime with a cross-border dimension; and further agrees that the general principles of subsidiarity, proportionality and necessity based on clear evidence must be respected when deciding whether to propose criminal sanctions to ensure the effective enforcement of EU policies.