Eurojust and the European Public Prosecutor’s Office

Dominic Raab Excerpts

Tuesday 29th October 2013 Commons Chamber

[Diana Johnson (Kingston upon Hull North) (Lab)]

I thank the Minister for his characteristically thorough and detailed explanation of the motion.

Tonight the House is discussing the two issues of European co-operation on justice and home affairs: Eurojust and the European public prosecutor’s office. If anyone is feeling a sense of déjà-vu, that is because the House discussed the EPPO this time last week. Indeed, there was a rare moment of unity when those on both sides of the House agreed with the Government, the previous Government and the European Scrutiny Committee that the creation of the EPPO did not meet the test of subsidiarity and that the UK should therefore opt out. In government, Labour secured an opt-out from the EPPO and in opposition we support the Government in continuing to use that opt-out. We have also heard that the yellow card has now been issued.

Given the degree of unity in the House and as we debated it at length last week, I do not intend to dwell on the subject of the EPPO. I note what the Minister said about the links between the EPPO and Eurojust, but I think that we should particularly consider Eurojust.

To recap, Eurojust was established in 2002 and in 2001 the EU Commission conceived its role as

“facilitating cooperation between Member States and contributing to proper coordination of prosecutions in the area of serious, and organised, crime.”

Its concern is so-called “annex 1” crimes such as drug trafficking, human trafficking, terrorism and financial crimes. Those are serious crimes that constantly evolve and adapt. Increasingly, they cross borders and require co-operation between different jurisdictions. The importance of Eurojust to the UK is underlined by the fact that there have been 1,459 requests from EU member states for co-operation with Britain through Eurojust since 2003, with 190 requests made in 2012 alone. It is therefore a little disconcerting to see the Government playing the hokey cokey—we are in at the moment, but now we are opting out although, in principle, we might be back in again in the future.

The primary functions of Eurojust have been and will continue to be the facilitation of co-operation between member states. Eurojust is required to respond to any request from a member state and to facilitate co-operation. That role means that Eurojust must inform member states of investigations and prosecutions that are occurring in a different member state but affect the member state; assist the competent authorities of the member states in the co-ordination of investigations and prosecutions; provide assistance to improve co-operation between member states; co-operate and consult with the European judicial network in criminal matters; and provide operational, technical and financial support to member states’ cross-border operations and investigations, including joint investigation teams.

The key thing to remember is that Eurojust seeks to support member states in conducting investigations, unlike the EPPO, which seeks to undertake the prosecutions itself. The distinction is vital and the aim of the British Government should be to continue that element of Eurojust.

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

The hon. Lady talked about the hokey cokey of the Government’s position. Can she be clear whether the Opposition advocate that the UK opt in now, based on the draft regulation as it stands, with all the supra-national transfers of power entailed in it?

[Diana Johnson]

I shall come later in my remarks to what I think the Government should have been doing leading up to this point—making sure that the aspects that they were concerned about were discussed. I shall put a series of questions to the Minister about how many conversations and dialogues took place with the EU to try to get the regulation in a form that was more acceptable to the Government.

As Eurojust is based on co-operation, it places obligations on members to co-operate with joint investigations, and these obligations are set to increase. I shall come back to that. If the Government are serious about tackling human trafficking, terrorism or financial crime, for example, they need to be serious about working with European partners, but I am concerned that the Government seem to be sitting on the sidelines. Their current position appears to be that they would like the UK to stay in Eurojust as it is now, but they are content to let everyone else get on with a new Eurojust, which they are not part of, but which they hope they might get back into in the future. What we should do is work with our European partners to get a Eurojust system that works for us.

--- Later in debate ---

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

This motion must be considered in the context of the EU’s wider ambitions for a single policy on justice and home affairs. As mentioned earlier, the EU Justice Commissioner and vice-president, Viviane Reding, has a huge stake in this matter, and in a far-reaching speech last month she spoke about the considerable momentum towards developing a pan-European criminal code and institutions, replete with a European justice Minister—I dare say Ms Reding has a candidate in mind—and with detailed monitoring and sanctioning powers at Commission level. Those include new powers to uphold EU fundamental rights—a sort of triplication of the human rights legal framework, bearing in mind Strasbourg’s role in the Human Rights Act 1998 and UK jurisdiction, and an expanded role for the European Court of Justice. That is the clear ambition within the Commission and the broader EU. With that in mind, this is also a critical juncture for Britain. We remain poised to exercise our crime and policing opt-out under the Lisbon treaty. It is therefore the right moment—an important crossroads, perhaps—to think strategically about Britain’s criminal justice co-operation in the EU.

On the specifics of the motion, I fully support the Government’s intention not to be part of the European public prosecutor’s office. That initiative is obviously—transparently—a preliminary stepping stone towards a much more far-reaching EU prosecutor, and it must be nipped in the bud. Although it is limited, at least on the surface, to countering fraud against the EU, under current terms the EPPO would take powers away from Eurojust. It would have the power to compel UK police to hand over evidence, and to order UK prosecutors to take action. Through its relationship with Eurojust, it could place wider burdens of co-operation on member states. The scope of those obligations will, of course, be decided by the Commission, and ultimately by the European Court. As the Minister has said, we must stay out of such a measure. I welcome the Government’s decision and the Minister’s clarity of purpose and position.

We ought to emphasise the positive and we should preserve and retain our national criminal justice system. That system is steeped in a very different tradition from the civil, continental tradition, and in a different set of values. As hon. Members have already said, it is also steeped in a different functional division of law enforcement powers that enshrines a uniquely British conception of justice—one that is firm but fair.

The Eurojust regulation is a more finely balanced question. I worked in The Hague and with Eurojust, which has done important work in recent years serving as a college of co-operating national prosecutors. Personally, as the Minister has said, I would prefer it to have continued down that route and in its current form, but the new regulation gives the Commission a seat on a new executive board and places a duty on Eurojust to forge a special relationship with the EPPO. It also imposes additional stronger duties of information sharing on member states, including the UK if it signs up.

The EU Select Committee has highlighted the new powers given to representatives at Eurojust to bypass national authorities in order to process requests for sharing information or evidence, and I pay tribute to its excellent work. Again, all that would be interpreted and enforced by the Commission and the European Court, while increasing our contribution to the EU budget. I note that the Minister and the Government share those concerns and do not intend to opt in at this time. However, they leave open the prospect of “active consideration” of the case for opting in when the final text is agreed.

The Opposition position on this matter is totally hopeless. They recognise the defects in the regulation and accept the motion that the Government have put before the House. They know the Government are actively resisting the supranational elements and creeping supranational character that some seek to impose on Eurojust, yet they criticise the Government for not being in the negotiation now. Such negotiation would, of course, mean that we were irreversibly tied in to the new regime if it cannot be changed. That is utterly untenable and the kind of thing one hears only from the Opposition.

If hon. Members want to be churlish, they might question why the Government are rightly critical of the proposals, yet rather more enthusiastic about them for the future. I am not sure why that is, but I will limit myself to seeking confirmation from the Minister that the House will have an opportunity to debate and vote in advance of any later decision.

[James Brokenshire]

I am happy to assure my hon. Friend that, if there were a subsequent recommendation to opt back in on the final approved text, I would envisage the process we are going through tonight being replicated. I can confirm to him that we are keeping the option open to opt back in at that later stage precisely for the operational reasons to which he alludes—the benefits of Eurojust as it is currently constructed.

[Mr Raab]

I thank the Minister for setting out the Government’s position with admirable clarity.

Given that we are discussing the substance of Eurojust and its evolution, I want to take this opportunity to ask more broadly what strategic thinking has been done on our wider future justice and home affairs relationship. What consultations has the UK had with the Commission and other member states on renegotiating Britain’s wider relationship with the EU in that critical area? It is right to assess each regulation or measure case by case, on its individual merits and substance, in a sober and pragmatic way—the Minister has done that cogently this evening—but, at the same time, we need to look to the bigger picture and the longer-term horizon.

I worry that we will drift into a disjointed, albeit bespoke, relationship with Eurojust and the wider JHA framework almost by default, annoying our European partners without satisfying our national interest, risking the worst of all worlds. Would it not be better to grasp the nettle and spell out proactively, on the front foot, what strategic JHA relationship we want, and why that will serve the EU’s interest as well as the British national interest? In my view, that means a British commitment to be a good operational partner, with all the resources, know-how and expertise we bring to the game, but without sacrificing democratic control over such a sensitive area of national policy. It means saying to our European friends that our co-operation within Eurojust will improve operationally as trust and confidence develop, but that we cannot accept any further transfers of authority or control to the supranational level.

[Mark Reckless]

When my hon. Friend was a witness in the Home Affairs Committee, he recommended that, in respect of Europol, we might want to adopt the Frontex model. Does he believe that that could be an appropriate model for Eurojust?

[Mr Raab]

My hon. Friend is, as ever, spot on. Each area is fundamentally functionally different, but Frontex shows that countries do not have to be formal members that have signed up in a formal way to be active operational partners. We have heard that from the head of Frontex. It is at least a starting point for evolving our relationship with Eurojust and Europol. If, as I suspect, others within the Commission and member states want to go down the federalising route, that option should be clearly discussed now. We should be on the front foot, and not ashamed or beguiled from talking about it.

We need to make it clear that we cannot accept any further transfers of authority, or the salami-slicing of national democratic authority—that is what we are seeing in the attempts to upgrade Eurojust and Europol. Will there ever be a better moment to have that candid but constructive conversation with our EU partners? I doubt it. Government Members have a commitment to renegotiate our relationship with the EU and to put the renegotiated deal to the British people in a referendum. We know that the British people care. According to a ComRes poll for Open Europe last year, repatriating UK control over crime and policing ranks fourth on the public’s list of priorities for renegotiation. That is very high compared with the other priorities surveyed. We also know that there is significant scepticism among the wider public at large on whether any politicians keep their promises on Europe.

The Labour party is responsible for that haemorrhaging of trust. The Government have a genuine chance to rebuild public trust. That ought to start with the decisions we are taking now and over the next six months on crime and policing, underscored by a two-pronged strategic approach to our future JHA relationship with the EU—one that pledges the full operational co-operation of a strategic ally but defends the return of full democratic control, which the British people want and expect.