Justice and Home Affairs Opt-out

David Nuttall Excerpts

Monday 7th April 2014 Commons Chamber

[Mr David Nuttall (Bury North) (Con)]

It is a pleasure, as always, to follow the right hon. Member for Leicester East (Keith Vaz), the Chair of the Home Affairs Committee. I do not agree with him on our membership of the European Union, but I agree with him that the British people should have a say on the matter. That is something I want to address this afternoon.

It is welcome that the Government have, for once, made available Government time—not Backbench Business Committee time—for a debate on the Government’s opt-out decision, and I welcome, and happily support, the Government’s decision to opt out of the 128 measures. I do not support the opting in side of it: we should just leave that where we are. We have opted out and that is good enough for me. I suspect that millions of our citizens will find it rather strange that, at a time when all the debate in the country is about pulling powers back from Europe, we are going to unilaterally, without anybody putting their arm up our backs, opt in to giving the European Union more powers over our affairs.

Those who voted for the Conservative side of the coalition Government back in 2010 will be particularly surprised by this decision. They will have voted, in May 2010, for a Conservative manifesto that had commitments relating to Europe that were largely based on the speech given on 4 November 2009 by the present Prime Minister, the then Leader of Her Majesty’s loyal Opposition, entitled “A Europe policy that people can believe in”. Of course, millions of people did believe in it. After calling for the repatriation of various powers to turn back

“the steady and unaccountable intrusion of the European Union into almost every aspect of our lives”,

the Leader of the Opposition, as the present Prime Minister then was, called for an opt-out of aspects of social and employment legislation, a complete opt-out from the charter of fundamental rights, and negotiations to return powers over criminal justice matters. He said:

“We must be sure that the measures included in the Lisbon Treaty will not bring creeping control over our criminal justice system by EU judges. We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level, and ensuring that only British authorities can initiate criminal investigations in Britain.”

That is the Europe policy that many people did believe in. They, like me, will be surprised that the Government are proposing to opt in to 35 of the 128 measures over which the Government have exercised their opt-out. Although that is significantly fewer than the 93 in respect of which the opt-out will remain, 41 of those 93 are essentially irrelevant to the United Kingdom, and the Government themselves admit that many of the other 52 will have very little impact on the UK.

So what is my perspective? Millions of people in this country have already decided, as I have, that the country would be better off outside the European Union, and many millions of others are biding their time. They are waiting to see what the outcome of the Prime Minister’s negotiations with our European partners will be. Back in the early 1970s, those who were around and old enough to be conscious of what was going on in the political world thought that we were entering into a free-trade arrangement with our European partners, and that is what they want us to return to. I suspect that the fact that we are now proposing to opt back into matters relating to justice and home affairs—an entire area of policy which they never dreamt would one day be subject to the control of a foreign body and a foreign court—will only add to the millions of people who have already decided that the United Kingdom would be better off outside the European Union.

I think that this decision should be made on a “policy area by policy area” basis. I know that that might mean 35 separate votes, but so what? I agree with the Select Committees which have said that the issue is so important to the affairs of our country that if that is what it takes, that is what our Parliament should be able to do. Whatever mechanism is used, however—whether it is a single, en bloc vote or a series of separate votes—I am absolutely sure that if the outcome is a decision to opt back into 35 of the measures, or some other number, many of our fellow citizens will decide that that is the final straw. They will note our irrevocable decision to cede to a foreign court powers that govern the lives of people in this country, and will conclude that the best thing that they can do is vote Conservative in the next general election, and then, when they have their say in a referendum in 2017, vote—as I will—for this country to leave the European Union.

--- Later in debate ---

[Mr Raab]

My hon. Friend is absolutely right. I was going to come on to the other areas of creeping supranationalism.

The same is true of Eurojust. Although Britain will not opt in to the European Public Prosecutor’s Office—I very much welcome the fact that Ministers have made that clear—if one looks at the fine print, which the Deputy Prime Minister always encourages us to do, the new Eurojust regulation encourages close co-operation with the EPPO through the back door. If we opt back in to the Eurojust regulation, we will therefore have a close relationship of support for the EPPO. That is something else that needs to be looked at.

Even here at home, outside the political arena, we have had a timely warning from the High Court, and from Mr Justice Mostyn in particular, about the risks of creeping supranationalism. The last Government, to great fanfare, negotiated the British opt-out from the charter of fundamental rights. However, we found out from a case in the High Court in November 2013 that that counts for nothing. Again, so that I cannot be accused of spinning the language, I will refer directly to what Mr Justice Mostyn said. In respect of the opt-out he said:

“it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts. The assertion in the…protocol that no new rights are created seems to me to be a misleading product of political compromise because on any view the Charter enunciates a host of new rights which are not expressly found in the European Convention on Human Rights signed in Rome in 1950.”

He continued:

“However, my view that the effect of the seventh protocol is to prevent any new justiciable rights from being created is not one shared by the Court of Justice of the European Union in Luxembourg.”

He went on to say:

“The constitutional significance of this decision can hardly be overstated.”

That is a timely warning from another senior British judge about what is actually happening.

If we listen to our colleagues, partners and friends in the European Union, they are telling us the same thing loud and clear. Viviane Reding, the vice-president of the European Commission and the Justice Commissioner, made it very clear in a speech in Brussels on 4 September 2013 that the EU wishes to acquire the powers of a nation state in the rule of law area. She said explicitly that the EU needs a formal justice Minister and stronger powers to police national criminal justice systems, including

“detailed monitoring and sanctioning powers”.

We must not only look at the snapshot of measures that are before us now, but ask whether in five or 10 years’ time we will find ourselves enmeshed in a common pan-European justice system over which we have lost substantial democratic control. On the evidence, the answer is almost certainly yes.

I want to talk about the European arrest warrant in particular because, between the two poles of UKIP, which suggests that we should just opt out en masse, and our Labour and Liberal Democrat colleagues in this House, who suggest that there is nothing wrong with it, there is a common-sense—dare I say it—third way or at least a middle course. That is to have binding treaty relations on extradition, but to ensure that we have safeguards in place to protect British citizens. We must not make the Faustian bargain that was debated by the right hon. Member for Berwick-upon-Tweed and my hon. Friend the Member for North East Somerset of sacrificing a few innocent people to snag a few guilty fugitives.

If one looks at the data, one finds that the number of European arrest warrants that are received by the UK has trebled since 2004. The latest figures on warrants issued from the first quarter of 2013 showed that the UK receives 33 warrants for every one that it serves. A number of colleagues on the Liberal Democrat and Labour Benches have talked about the lop-sided nature of UK-US extradition, but that is nothing compared with the European arrest warrant, empirically and factually. One cannot take issue with the lack of reciprocity in our extradition relations with the US and not see the same problem in the European arrest warrant. One Briton is surrendered each week. That is up from five per year in 2004.

I accept that we needed a more streamlined process than existed before. I accept that we need a treaty basis for that. We ought to get to a stage where we can talk about reform of the European arrest warrant. I do not think that we will achieve that if we opt back in at this stage.

[Mr Nuttall]

I agree with many of the points that my hon. Friend is making. Will he clarify whether, in his opinion, it would be possible to reach such an arrangement, with a separate treaty, if this country were outside the EU?

[Mr Raab]

Of course it could be reached. I was a Foreign Office lawyer for six years. I would love to obsess, fixate and opine on all the legal niceties, but this is about political will. Ultimately, these issues come down to political will.

Many Members have quoted ACPO’s submission on the importance of the European arrest warrant. I accept that it has been very clear about that. However, as I said earlier, it has not been able to assess how many fugitives would go free if we did not opt back in to the European arrest warrant, but went down an alternative route. That is the Achilles heel in its argument. In fairness to ACPO, if one reads on from the statement that the hon. Member for Cambridge (Dr Huppert) read out, it says:

“That said, extradition did exist before 2004 and so it could operate without it”—

that is, without the European arrest warrant—

“as it does with non-EU states.”

The idea that we would face a cliff edge and that fugitives would go free left, right and centre—we have the tabloid scare stories about terrorist suspects and paedophiles—is nonsense. The only way in which that could happen would be if the EU was prepared to cut off its nose to spite its face and refuse to have any extradition relations with us at all. What possible interest would it have in doing that?

I listened carefully to the police evidence, as I think has been borne out by my comments today. I also want to look at the non-police evidence. Fair Trials International has given evidence at length about the miscarriages of justice that have taken place. The appalling miscarriage of justice in the Andrew Symeou case, in terms of both the incompetence of the Greek system and the gruesome jail conditions that he ended up in, are passed by very glibly by those who suggest that we should opt straight back in or that we should opt back in and then somehow reform the system without having the leverage that we have now.

I have the constituency case of Colin Dines, who is subject to a European arrest warrant that alleges his involvement in a mass telecoms fraud involving the Mafia back in Italy. No evidence has been presented of his links to that crime. No attempt has been made to come to the UK to interview him, to get his side of the story or to see if the matter can be straightened out. In the process, with the stress and the strain, he has suffered a stroke, only to find out that the case is crumbling and that the substantive charges look very likely to be dropped or, at least, that a face-saving way out will be found by the Italian authorities. There are other cases, such as those of Edmond Arapi and Deborah Dark.

I respect the Liberal Democrat position on the European arrest warrant, but when I heard the Deputy Prime Minister, in the Farage-Clegg debate, dismissing the Symeou case as “fantasy”, it was deeply disappointing. It was right that he subsequently corrected his position on the Symeou case. As someone who has met the family of Mr Symeou and the other victims to whom I have referred and who still sees the Dines family, who continue to suffer from the European arrest warrant, I find the glib dismissal of a civil liberties issue by the Liberal Democrats difficult to reconcile with their supposed advocacy of British freedom.