2014 JHA Opt-out Decision

Dominic Raab Excerpts

Monday 15th July 2013 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

It is a great pleasure to follow my hon. Friend the Member for Hertsmere (Mr Clappison), who placed this debate in its wider and proper context.

Let me say at the outset that I welcome the enormous amount of work done by Ministers across Whitehall. I believe that it is right that we exercise the block opt-out and then assess the UK law enforcement value of any individual measure very carefully. We need the scrutiny of our Select Committees on the detail, so I welcome deferral of the consideration of that second limb of the process until the autumn. I also welcome the Justice Secretary’s acceptance of the Select Committees’ amendment.

I note the parameters of the opt-out under the Lisbon treaty. The shadow Home Secretary, who is back in her place, cast doubt on our right to opt out and then opt back in selectively. She says that we need to ask for permission that could be refused, or that we could be fined for exercising the right. Labour’s amendment is based on those contentions. I have to say that I am confused, because on 16 October 2007, the then Foreign Secretary, the former right hon. Member for South Shields, told the European Scrutiny Committee:

“it is quite open for any government to opt out of all of those measures and then as they are transposed we have the right to opt back in…if we consider that the new framing of the measure is appropriate”.

He was not talking about a right to request or something that was up for negotiation, but a clear, cast-iron right to opt back in on a selective basis.

That was followed up on 29 January 2008, when my hon. Friend the Member for Hertsmere, assiduous as ever, asked the then Home Secretary, the former right hon. Member for Redditch, whether the UK might be fined for selectively opting back in. Labour’s last Home Secretary told this House:

“The process is spelled out reasonably clearly, but I do not intend to go through it in detail now. It is straightforward and safeguards the UK’s ability to opt in. I take exception to the hon. Gentleman’s suggestion that there are penalties for not opting in. That is not the case.”

She also said:

“The deal…represents a huge negotiating success.—[Official Report, 29 January 2008; Vol. 471, c. 178-183.]

In casting doubt on our rights now, the shadow Home Secretary is rubbishing the deal negotiated and lauded by the previous Labour Government. If she is right, either they misled the House then or the EU is demonstrating bad faith now. Which is it?

[Chris Bryant]

I am sure that the hon. Gentleman would not want to suggest that anybody has misled the House. I am afraid that he is getting all his opt-ins and opt-outs mixed up. It is very clear what the process is in article 10 of protocol 36:

“The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision…The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences”.

[Mr Raab]

I thank the hon. Gentleman. All I am doing is quoting back to the House, and to him, the assurances given by Labour Ministers about the practical operation of the exercise of block opting out and then selectively opting back in. I have many more quotes that I can read out if he likes.

The basic point is that, given the way in which Labour Members are now rubbishing the exercise of the opt-out, there has either been some misleading or misunderstanding in the way that they presented it to the House back in 2007 and 2008 or, by implication, the EU is demonstrating bad faith now. Which is it? I would be happy to take another intervention from the hon. Gentleman.

[Mr Clappison]

May I confirm to my hon. Friend that he is entirely right in his observations? Of course this opt-out was negotiated by the previous Labour Government. I can also confirm that the Ministers and Secretaries of State who appeared before the European Scrutiny Committee did not have fits of uncharacteristic modesty when talking about the opt-out.

[Mr Raab]

I thank my hon. Friend. I have already quoted him and cited the important probing that he did back in those days.

Labour Members have a choice: either they misled and exaggerated the nature of the opt-out they negotiated or the Commission and the EU are demonstrating bad faith now. This Government, this House and the British public will reward neither of those basic binary options.

The Opposition’s other line of attack is to say that the Government’s intention of junking at least 100 measures is trivial because they are meaningless or obsolete. That prompts the question of why the shadow Home Secretary’s party signed up to them in such an unblinking and unthinking manner in the first place. It demonstrates that Labour Members are the dogmatists, whereas we mean to scrutinise this stuff far more carefully and substantively, measure by measure.

The motion gives the House's endorsement to the block opt-out, but it defers any opt-ins pending consultation, parliamentary debate and approval. As we have heard, a major downside of opting back into any measure is the creeping authority of the Commission and the Luxembourg Court. I think it is acknowledged across the board, certainly by Conservative Members, that whatever we do about the opt-ins, that is a serious defect in our current relationship. I believe that the British Supreme Court should have the last word on British criminal justice matters, for example, on the extradition of a UK citizen or on policing operations. I do not understand why, having created the Supreme Court amid huge fanfare, Labour Members now want to give away jurisdiction and, in effect, emasculate the word “Supreme” in its name.

One need only look at the recent ruling by the European Court on Human Rights in Strasbourg on life prison terms, the ruling on Abu Qatada, or the ongoing saga of prisoner voting, to see what happens when we submit to European judicial jurisdiction, albeit one in Strasbourg rather than Luxembourg. If anyone thinks that the Strasbourg Court is activist, they should look at the record of the Luxembourg Court, particularly in the emerging area of justice and home affairs in cases such as the Metock and Pupino judgments. I recognise that opting back into measures without accepting the jurisdiction of the Commission and Luxembourg Court is technically not within the terms of this decision process. However, have Ministers raised this now as part of the Prime Minister’s wider commitment to renegotiate Britain's relationship with the EU? Has this marker been laid down for the future? That is a vital issue.

There are plenty of other precedents and models for a more flexible relationship on justice and home affairs. Britain is not formally a party to Frontex, the EU’s external border agency, because we want to keep our national border controls, but we co-operate on risk analysis and joint operations. Does this hurt our influence or operations? No, not a bit of it. Frontex executive director Ilkka Laitinen says:

“we do not see any difference between our UK colleagues and the others”.

Outside Europe, the Strategic Alliance Cyber Crime Working Group comprising Britain, the US, Canada, New Zealand and Australia—some of our closest partners—collaborates on cyber-crime and intelligence under a non-binding framework. It is regarded as the gold standard of operational co-operation. In terms of law enforcement co-operation at the operational level, Brussels is the odd one out in insisting that we sacrifice democratic control, bit by bit, as the price of operational co-operation. To what extent have Ministers explored these wider options for renegotiating our justice and home affairs relations with Brussels? I say that partly because it is a vital policy issue at stake but also because, at home and abroad, the crime and policing opt-out will be seen as a litmus test for Britain’s wider strategy of renegotiation. It is important for the credibility of that strategy that what we achieve on the crime and policing opt-out is understood as a point of departure, not the point of arrival.

Let me be clear about the positive alternative for our engagement with our EU partners on justice and home affairs. This is not all about knocking the European Union for ideological or dogmatic reasons. I see huge value in robust law enforcement co-operation at the operational level within Europe. The more flexible the EU can be on the structure of the legal form, the better operational friend they will find us in practice. Of course we want to exchange criminal records information, but we do not want the personal data of innocent British citizens washing around Europe, particularly with Governments—let us be honest about this—whom we would not trust to safeguard it. I have to say that I am not sure about trusting our own Government and Whitehall with lots of our personal data. If we do not trust Whitehall, what hope is there when it gets shipped off to Warsaw, Sofia and places like that?

Yes, we should engage in joint police operations, but there is no reason—none at all—for us to allow the initiation or oversight of such co-operation to be determined by EU authorities. There are also wider efforts to harmonise criminal law, which are wholly unnecessary and, to be frank, set a pretty bad precedent. Whether the question is which drugs to ban or how to define the delicate balance between hate crime and free speech, this House is the right place to pass British criminal law.

I want to touch on three specific measures. First, on Europol, I have no hesitation in saying that British police should share information and co-operate at an operational level. I worked directly with Europol and Eurojust when I was posted to The Hague during my time at the Foreign and Commonwealth Office. I see real value in the college structure that allows smoother day-to-day co-operation between national offices. Europol is not perfect as currently configured. It has all the features of bureaucracy and waste that we expect from the EU, including—believe it or not—the €35,000 contract it signed in 2010 to send flowers to itself.

For all its flaws, Europol serves an important function. However, it is not in the UK national interest to see Europol acquire supranational powers that trump national authority over our police. I am already nervous about the existing power of Europol to initiate investigations in the UK and the increasingly limited right to refuse.

The new regulation on Europol, which we will debate later, would also require UK police forces to give foreign police open access to their files. All this would be interpreted by the European Court of Justice. Step by step, the EU is heading towards a supranational model. What is our long-term vision? Should we not be saying, clearly and unambiguously, that we will not hold back willing EU states that want to go down this route, but that it is not a model we will subscribe to over the long term? I ask again whether Ministers have laid down a future marker on that point.

Secondly, on Eurojust, a college of collaborating national prosecutors is hugely beneficial. I would rather it did not splash out €300,000 on Mercedes-Benz, as it did in 2010, or €33,000 on its end-of-year bash, as it did in 2011. Still, co-operation is important.

The Commission, however, is poised to announce a new regulation to beef up Eurojust’s supranational powers and create the European public prosecutor. The announcement is expected shortly. In fact, it appears to have been delayed and one might wonder whether the reason for that was so that it would not take place before this debate, but perhaps we would flatter ourselves too much if we believed that. In any event, I ask again whether Ministers have laid down a marker whereby, if Eurojust evolves in this way, Britain must carve out a separate, bespoke relationship.

Finally, on the European arrest warrant, few Members would deny that fast-track extradition benefits the police, although I think that some of the representations from law enforcement agencies have been rather one-sided. Even Commander Gibson of the Metropolitan police has said that

“resources are stretched dealing with the amount of EAWs we receive”,

because the regime is lop-sided. For every EAW Britain issued in 2011, we got 33 back. We receive about a third of all European arrest warrants.

A lot of non-British nationals are involved and we do not have quite the same stake or interest in the safeguards to which they are subject, but the fact of the matter is that the increasingly broad net of the EAW sweeps up far too many innocent Britons who are, to be frank, hung out to dry by the British justice system.

[Michael Ellis (Northampton North) (Con)]

I was a fierce critic of the European arrest warrant, but does my hon. Friend agree that the changes envisaged by the Home Secretary make it completely different from that which has gone before? For example, the changes to proportionality restrict the extradition of people for petty and minor offences and the changes to bail mean that individuals can be bailed pending proceedings. There is also a change to charging decisions, because previously people could be extradited before the foreign country had even decided whether to charge them or not. Those decisions, taken by this Government, this House and the Home Secretary, mean that the European arrest warrant as we have known it will be completely different, so it can and should have our support.

[Mr Raab]

My hon. Friend makes a good point. I will come back to the proposals in the Anti-social Behaviour, Crime and Policing Bill and the extent to which we need to scrutinise them. I accept that this is an important opportunity to mitigate the blunt edges of the EAW, but the fact is that, at the moment, its broad net sweeps up too many innocent British nationals such as Andrew Symeou, Deborah Dark, Michael Turner, Edmond Arapi and, in my constituency, the retired judge Colin Dines, who suffered a stroke as a result of the pressure and stress of being subject to the warrant. We hope and expect that it will be dropped, but he and his family will still be left to pick up the pieces.

[Jacob Rees-Mogg]

Is it not the case that if we opt back in, the European arrest warrant cannot be better in future than it is now, because at present it is not subject to the jurisdiction of the European Court of Justice or to enforcement by the European Commission, but then it will be? Therefore, whatever laws we pass in this House will not be determinative. It will be determined by the European Court of Justice.

[Mr Raab]

My hon. Friend makes his point, which I will come back to, in a powerful way. The issue has two distinct elements. We could get away with UK safeguards without amending the framework decision, but would they then be whittled away by the Luxembourg Court? My hon. Friend is right to raise that point.

I have mentioned a series of cases, all of which are appalling miscarriages of justice. The point I want to make—this is difficult for our coalition partners, who feel strongly about civil liberties and have strongly supported extradition reform when I have raised it in this House—is that if people are concerned about extradition and blunt extradition under our arrangements with the US, they cannot turn a blind eye to what has been happening under the European arrest warrant, because this is not about the odd case but systemic. Britain’s senior extradition judge, Lord Justice Thomas, stated publicly in his evidence to the Baker review—this has already been alluded to—that the EAW system has become “unworkable” and that unfairness is a “huge problem”.

This is not about a piffling, odd case here or there, or the trivial cases that get cited and bandied around left, right and centre; it is about serious cases such as that of Symeou, who was, in effect, wanted for killing someone, and Colin Dines, who was wanted for a very serious fraud. We all accept that those are extraditable crimes—that is not the issue. The question is whether we trust the investigating prosecuting authorities and courts in some of these other countries and whether we turn a blind eye to some of the appalling prison conditions.

[Nick de Bois (Enfield North) (Con)]

My hon. Friend mentioned the case of my constituent Andrew Symeou. Is not the core of the problem that the European arrest warrant fundamentally rests on a concept of mutual recognition and mutual trust that all systems are the same and have equal fairness and human rights? Only last week at the Organisation for Security and Co-operation in Europe conference, Hungary, a member of the European Union, was condemned by parliamentary delegates for wrong practices, which surely cannot allow mutual trust to continue.

[Mr Raab]

My hon. Friend is spot on. In fact, Lord Justice Thomas has said that the EAW

“presupposes a kind of mutual confidence and common standards that actually don’t exist.”

None the less, for all the flaws in the EAW—I recognise its law enforcement benefits as well—I do not take a particularly dogmatic approach to it. The optimum solution would be not to ditch the EAW altogether, but for Britain, having exercised the block opt-out, to press for safeguards as a condition of opting back in. The problem with that, however, is that I understand that the Government regard renegotiation of the framework decision as unfeasible within Europe because there is no majority to support it. Incidentally, that blows a hole in the Liberal Democrats’ stance of saying that we can achieve safeguards through negotiation if we opt back in straight away. That is naive: we would lose all our leverage. I will come back shortly to what I think is the way forward.

The other cheerleaders for the EAW seem to point to the Hussain Osman and Jeremy Forrest cases, but we should not need extradition to get British fugitives back from Europe—a point fundamentally missed too often in this debate. Those kinds of people, particularly British nationals—whether they be in Spain or whether they are Jeremy Forrest, Hussain Osman or any of the other names that are bandied around—should be deported, not extradited, straight back home without fuss or fanfare. The point is that, far from being the cure, EU law in the form of the 2004 citizenship directive, which Labour blindly and irresponsibly agreed to, has whittled away the power to deport nationals back home, which is another clear area where Britain should seek repatriation of power. If we had stronger national powers of deportation, we would not have had to become so reliant on this blunt EU extradition regime.

Another argument is that extradition under the old Council of Europe conventions would be slower. That is true, but it does not mean that any fugitives would go free. Their return might end up being delayed for a bit, and I can see that that would be annoying for the police. But, in the absence of adequate reform of the EAW, the slightly slower surrender of crooks in return for protecting the innocent is not the worst situation we could be in, at least for a limited period during which we negotiated more balanced extradition treaties, either bilaterally or, as my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) said, multilaterally with the EU, which now has a distinct legal personality. All the Opposition’s scaremongering about diluting public protection if we tinker with or seek to reform the European arrest warrant is nonsense.

The Government have tabled proposals to introduce safeguards into UK law to prevent further miscarriages of justice under the European arrest warrant. I welcome those proposals. There will be certain questions to consider in this context. Can we go far enough in taking off the rough edges of the warrant without falling foul of the framework decision, particularly given the fact that the Luxembourg Court will have the final word in interpreting these cases? I urge the Joint Committee on Human Rights, as well as the other Select Committees, to look into this matter. It has already produced a report on extradition in which it looked at the adequacy of the European arrest warrant, and it would be well placed to give a discreet analysis of this issue within the available timeframe. I shall withhold my final judgment on what we should do about the European arrest warrant until then.

Even with adequate safeguards, our opting back into the EAW would give the Luxembourg Court jurisdiction over the fate of British nationals. I would be interested to know whether Ministers have laid down a marker about our wider justice and home affairs relationship and specifically about the future role of the Luxembourg Court. I am talking here about the wider renegotiation of the justice and home affairs relationship. I appreciate that that is not technically within the terms of the block opt-out, but I believe that this is an opportune moment at which to lay down such a marker. Doing so would give many Conservative Members reassurance.

I can support the motion because I support the block opt-out, and I look forward to debating all the individual measures. The critical issue for me at this juncture is to receive assurance that the message has been delivered to Brussels, loud and clear, that this crime and policing opt-out process is just the appetiser, before we begin the wider renegotiation and repatriation process that Britain wants and needs.