The UK’s Justice and Home Affairs Opt-outs

David Nuttall Excerpts

Thursday 10th July 2014 Commons Chamber

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

It is a great pleasure, as always, to follow my hon. Friend the Member for Aldershot (Sir Gerald Howarth), who put the arguments succinctly. I agree with the comments of my hon. Friend the Member for Harwich and North Essex (Mr Jenkin). Both my hon. Friends summed up the flavour of the debate. As we approach the end of the debate, the arguments on both sides have been fairly put, so I will not detain the House for too long.

As we saw in the recent European elections, there is a strong feeling in this country that we should have less interference from Brussels. The justice and home affairs opt-outs give us a golden opportunity to demonstrate to the British public that we are in tune with how they think about the European Union. They want less interference from Brussels, not more.

There is a strong feeling that people thought they were entering a common market back in 1973, and they voted to remain members of it in 1975. It was referred to back then as the European Economic Community and the Common Market. Effectively, it was a free trade area. However, those behind the grand euro project were not satisfied with just a common market. They saw it as just the first step towards building a single European superstate. The European Economic Community soon became just the European Community—the word “economic” was dropped altogether, reflecting the wider and grander aims of the European project. The European Community swiftly became the European Union, as another step was taken towards creating a single superstate.

Why did I start with that background? I did so because the European Union’s powers over justice and home affairs are an example of its growing power and influence. It has become far more than just a common market. It already has its own Parliament, its own flag, its own national anthem, its own civil service, its own foreign and diplomatic service and its own court. It has all the attributes of a state, so it is no surprise that those behind the European project want to develop a single Europe-wide system of justice and home affairs.

At a time when there is a desire among millions of our fellow citizens for the European Union to have less influence, we should be taking this golden opportunity to take back powers. Let us be clear on what is at stake: above all else, this is a matter of principle. If we exercise an opt-in—voluntarily, because there is no obligation on this country to opt in—it will mean that yet again the powers of the institutions of this country will be reduced and power transferred to the institutions of the European Union. At a time when we are saying to the British public that we want powers back from Brussels, it is not, I would venture to suggest, a very good start to voluntarily give up power over these 35 different measures.

As the Government themselves said when they gave evidence to the House of Lords European Select Committee:

“the practical effect of the ECJ gaining full jurisdiction in this area after the transitional period”—

which, of course, means from 1 December 2014—

“is that the ECJ may interpret these measures expansively and beyond the scope originally intended. This concern is compounded by the fact that the ECJ has previously ruled in the area of Justice and Home Affairs in unexpected and unhelpful ways from a UK perspective”.

So there we have it. The Government know that there is a real risk that once these powers are handed over to the EU there is no turning back and the European Court of Justice can interpret them as they think fit.

In the Government’s response to the European Scrutiny Committee’s November 2013 report on the block opt-out, the Government said the following about the rulings of the ECJ:

“We have also set out our concerns with the impact of these judgements on the domestic law. If we disagree with the ECJ’s interpretation of legislation, it will be impossible for the UK to amend the law itself. Indeed, it would be very difficult to alter it at all as this would require the Commission to propose an amendment to the EU legislation itself, or a cohort of Member States to do so under the auspices of a Member State initiative.”

Such a cohort would have to consist of a quarter of all member states. The European Parliament’s agreement would also generally be needed to amend the relevant EU legislation.

We must not forget that the European Court of Justice, in determining cases, would start to apply its human rights jurisprudence, arising from the European Union’s own charter of fundamental rights, to the UK’s policing and criminal justice system. It would, therefore, be all very well for us to try to negotiate or even unilaterally opt out of the European convention on human rights, but the fact remains that if we remain members of the European Union we would be bound by the European Court of Justice and its implementation of the EU’s charter of fundamental rights.

Perhaps the most worrying of the measures that it is proposed to opt back into is the European arrest warrant. We have heard much about it this afternoon, but let us be clear about what the European arrest warrant means. It gives other countries in the European Union the power to demand that a British subject be removed from this country and incarcerated in a foreign jail without any evidence being placed before a British court. Worst of all, the European arrest warrant could be used for some act or omission that is not a criminal offence in this country, where the conduct is wholly within a foreign country. Indeed, that aspect—dual criminality—was one of the principal grounds that my right hon. Friend the Prime Minister used to argue against the introduction of the European arrest warrant in the Extradition Act 2003. He voted against it.

There is perhaps a silver lining to every cloud. As someone who thinks that this country would be better off outside the European Union, let me say this in conclusion. If the Government decide, as I am sure they will, to opt back into these measures—despite what those of us who have reservations might think, I am sure that in the fullness of time this House will vote to allow the Government to do so—they will hand over power to the European Union on these issues for ever more. However, in so doing, they will provide yet another reason why, I believe, in the fullness of time millions of our fellow citizens will decide that the only way for this country to regain its own sovereignty will be to vote to leave the European Union.