Justice and Home Affairs Opt-out

Dominic Raab Excerpts

Monday 7th April 2014 Commons Chamber

[Mrs May]

I am aware of the report in today’s press, but I do not think that it referred to a Council of Ministers meeting. It may have referred to a document that possibly had been leaked from the European Commission. I say to my hon. Friend that, as I have made very clear, there are matters for discussion and matters for negotiation that we have to undertake as we go through this process, but other member states do have within their own systems a greater ability to deal with issues such as proportionality, and I think it is right that we have taken powers ourselves in our own legislation to do that.

Returning to my point, I think it is in our national interest to have an effective extradition system in place and no other extradition system would be as effective. We owe it to the victims of crime, and their families, to return the alleged perpetrators of serious crimes to this country and ensure that they face justice. There are many examples of that, of which I will cite only a few.

The arrest warrant recently helped the British authorities to secure the extradition and conviction of Francis Paul Cullen, a former priest who sexually assaulted seven children before spending more than two decades on the run in Spain. Thanks to the European arrest warrant, he will now swap the Spanish sun for a 15-year term in a British jail.

Our law enforcement agencies are clear that the arrest warrant has helped them to secure the return of dangerous criminals to face justice in the UK—criminals who under the old regime might not have been returned to answer for their crimes, including David Heiss from Germany and Florian Baboi from Romania.

David Heiss viciously murdered a British student, Matthew Pyke—originally from Stowmarket in Suffolk—in Nottingham in September 2008, stabbing him 86 times. Heiss was arrested on a European arrest warrant at his home in Germany a month after the offence and was surrendered to the UK the month after that. He has since been sentenced to a minimum of 18 years in prison. Before the European arrest warrant, Germany did not surrender its own nationals; indeed, there was a constitutional bar to its doing so, so it is clear that in this case the arrest warrant made a real difference.

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

In how many of the recent cases is the European arrest warrant making extradition quicker, rather than facilitating it when it would not have happened under existing arrangements? The Home Secretary has given one very powerful case, but quantitatively how many cases are we talking about because the argument has been made that actually we would face a cliff edge and just not get fugitives back rather than get them back a little bit slower?

[Mrs May]

The argument I make in relation to the European arrest warrant is on both those aspects of its operation. I have just cited a case where there was an issue of whether an individual would have been able to be extradited back to the UK had we not had the European arrest warrant. There are other cases where it is a matter of fact that the European arrest warrant has been able to be exercised more quickly on average than extraditions were before the EAW was in place. So it is not just that there are people who would not come back unless we had the EAW; it is that it also smoothes the process and makes this quicker and brings people here to justice quicker.

--- Later in debate ---

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

It is a pleasure to follow the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). We have not reached the same conclusion, but I pay tribute to the work of his Select Committee, and indeed to the work of all the Select Committees that have provided the reports that have invaluably informed this debate. I agree with the point that has been consistently made on the critical role of parliamentary scrutiny in all of this. Whatever our view on the measures and the direction that Britain should take, the measures are clearly substantive and important.

I welcome the Government’s exercise of the block opt-out, which is critical. I am surprised by the great lengths that Opposition Members, so few of whom remain in their place, have taken to trash the opt-out that they negotiated and to highlight all its flaws. Time and again, rather than setting out their position on the substance, they are at pains to point out their failure to negotiate, and to rubbish the product of their negotiations before the previous election.

It is important that we scrutinise the substance of this area of UK-EU relations, both because of its effect on policy and because the public care about it. For all the slavish pro-EU noises that we have heard from Labour and Liberal Democrat colleagues, their argument is clearly not taking effect with the British public. A ComRes poll for Open Europe towards the end of last year found that crime and policing is the fourth most important area that the British public want renegotiated with Europe. The top area is immigration, so two of the top four measures for renegotiation, according to the British public, who we know overwhelmingly back renegotiation, are justice and home affairs measures. If Conservative Members are just a bunch of crazies and are missing something, other Members must struggle to explain why they have failed to win over public opinion. Why do the public so strongly think that justice and home affairs is an area that needs to be reconsidered? It is important that we look at the package as a whole and at individual measures through the cold, hard lens of the British national interest.

My opening point is that the lack of proper empirical evaluation of the effectiveness of many JHA measures has been an endemic problem across successive Administrations, but particularly under the previous Government. In comparison with the way in which UK policy and legislation works, whether we are for or against the measures, we do not have a proper understanding of how the measures operate in practice. The right hon. Gentleman referred in a rather cavalier way to hundreds of criminals going free if we do not sign up to the European arrest warrant. I will take an intervention if he can explain where that figure comes from, because I do not think it is based on concrete evidence.

[Sir Alan Beith]

I was referring to the remarks of the hon. Member for North East Somerset (Jacob Rees-Mogg), who used the rather tired saying that it is better for 100 individuals to go free than for one innocent man to be convicted. My argument is that it would not be acceptable for 100 people to go free because we do not have the European arrest warrant, but we should also ensure that innocent people are not convicted.

[Mr Raab]

I thank the right hon. Gentleman for his intervention. He is the Chair of the Justice Committee, which has investigated the measure, but I am still not clear on the public protection shortfall, in empirical terms, if we do not sign up to the European arrest warrant and instead look for alternative arrangements, which I know would be slower. The Home Secretary referred to a case relating to the German constitution, but what is the empirical evaluation of the quantitative size of the public protection shortfall for which the European arrest warrant caters? I am none the wiser. I appreciate that the police would love to have fast-track extradition, but I will not nod police powers through the House that have been requested by the Association of Chief Police Officers, or by anyone else for that matter. In the same way, I would happily join forces with Liberal Democrat colleagues to face down police requests for things such as ID cards or extended powers of pre-charge detention. We need to consider the merits of each proposal.

ACPO’s evidence to the House of Lords European Union Committee has been regularly cited, and that evidence recommends that it is vital to opt back in to only 13 of 135 EU crime and policing measures. I do not suggest that we should take that at face value, but it is extraordinary that only 13 measures are regarded as being of any tangible law enforcement value. That highlights the unthinking way in which the previous Government signed up to EU measures, and they are now saying that the current Government are proposing only to opt out of trivial measures. The real question is why the previous Government signed us up to stuff that is trivial, redundant and irrelevant, not least because the trajectory of EU justice and home affairs is, sooner or later, going to encompass the jurisdiction of the European Court of Justice, which we know can turn seemingly irrelevant or peripheral measures into something damaging for national democracies. At the other end of the scale, it shows how much pointless legislation comes out of the EU if the police, who are regarded as the most zealous advocates of EU crime and policing, are advocating that we opt back in only to such a small proportion of the measures covered by the Lisbon treaty opt-in.

I pay tribute to the 21st report of the European Scrutiny Committee. I agree with all the points on the risk of giving jurisdiction to the European Court of Justice, because we would end up doing for crime and policing what the European Court of Human Rights in Strasbourg has done for deportation powers and prisoner voting and is looking to do for whole-life tariffs. We should be very cautious about that.

The Home Affairs Committee’s ninth report contains some important analysis of the European arrest warrant, which it describes as “fundamentally flawed.” It is worth noting that that backs up the evidence from Britain’s most senior High Court extradition judge, Lord Justice Thomas, to the independent Baker review of extradition. Lord Justice Thomas said that the European arrest warrant has become “unworkable.” I will read out in full some quotes from Britain’s most senior extradition judge, because this is not a right-wing excursion or some rabid anti-European ideology; it is from someone who considers such cases week in, week out. In his evidence to the Baker review, Lord Justice Thomas said:

“Looking at the 27—I’ve said this to many people—this system becomes unworkable in the end… politically there is a huge problem. There is quite a lot of strong judicial feeling on this subject”—

the European arrest warrant—

“in northern Europe that both the judges and politicians in other countries need to put the resources into their systems to bring them up to standard… We’re all agreed there’s an undoubted problem, as the cases sent in by Fair Trials International illustrate. If you talk to anyone, there’s obviously a problem… One of the problems with the way in which a lot of European criminal justice legislation has emerged is that it presupposes a kind of mutual confidence and common standards that actually don’t exist.”

That is Britain’s most senior extradition judge.

Previous speakers, particularly my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), spoke about considering not only a snapshot of current co-operation but the future vision of where EU justice and home affairs co-operation is heading. I entirely agree with that analysis. We need to think of the long term, not just the short term. I know that many hon. Members are rightly fixated on the time lag and the time gap, whether we have enough time to do anything else and whether we will find ourselves, having opted out, not opting back in to measures, but at this juncture we ought to look to a long-term settlement of Britain’s relationship with Europe in the important area of crime and policing.

I fear the creeping supranationalism that is undoubtedly coming. We cannot read the text of the regulations, whether on Europol or Eurojust, not to mention the wider remit of the European Court of Justice, without seeing that that is happening. We would have to be blind not to accept that. There is a new draft regulation that would strengthen Europol’s power to demand that national police forces initiate investigations by whittling away the national right to say no. There is similar strengthening of powers to demand data from national Governments with less ability for those Governments to say no. There is increasing supranational management of the running of Europol. Of course, if we opt back in, all of that is subject to the overriding jurisdiction of the European Court of Justice, rather than the British Supreme Court. I always find it fascinating that Opposition Members, including the shadow Justice Secretary, who set up the British Supreme Court, are now so willing and eager to give away its right to have the last word not only on matters affecting law enforcement and public safety but on matters affecting British citizens.

[Jacob Rees-Mogg]

I very much agree with what my hon. Friend is saying. Of course, the matter would also become subject to qualified majority voting and we could therefore be overruled on any future developments.

[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.

[John Hemming (Birmingham, Yardley) (LD)]

Will the hon. Gentleman give way?

[Mr Raab]

I am sure that the hon. Gentleman will correct that impression.

[John Hemming]

I just want to say that I do have concerns about the individual cases involving the European arrest warrant.

[Mr Raab]

I am glad that I took that intervention. The hon. Gentleman is absolutely right.

We need to work out the best way to reform the European arrest warrant through national legislation and by renegotiating the EU framework decision or, better still, by opting out and pursuing a bilateral treaty, which would mean that the British Supreme Court had the last word on the fate of British citizens. We ought to have a sensible debate about all of that.

I note that the Liberal Democrats’ answer to the problems of the European arrest warrant is another EU directive on the rights of the accused. A Liberal Democrat would say that, the answer to defects in EU law is always more EU law, but we must consider the systemic lack of judicial capacity and the lack of standards in some countries—I have mentioned Italy and Greece, which are not new EU member states, so heaven help people if they end up in the Romanian or Bulgarian justice systems or, worse still, in one of their jails. I welcome the hon. Gentleman’s intervention, but I do not understand how swiftly the Liberal Democrats have sold the freedom and civil liberties of British citizens because of their slavish adherence to EU dogma and the idea that ever more EU integration must be a good thing. We should not accept the Faustian bargain whereby we sacrifice a few British citizens to lock up a few extra criminals. That is not my idea of British justice. It is not what millions in this country fought for in world wars. It is not the tradition of this country dating back to Magna Carta.

We have options—that is critical—whether falling back on the Council of Europe conventions, which are not foolproof, or taking advantage of the legal personality of the EU to negotiate bespoke legal arrangements that do not fall within the ECJ jurisdiction. Hon. Members have referred to transitional arrangements, which could buy us some time. All of those are the common-sense middle ground we should be aiming for. There is absolutely no reason why a single serious criminal fugitive would go free if we considered such arrangements. To suggest otherwise is ridiculous scaremongering.

I have one final point to make on the European arrest warrant. There are reports in The Daily Telegraph today that Spain and France will not even countenance Britain adopting a proportionality test in UK law, even though the framework decision allows that. What chance would we have of renegotiating the framework decision after we opt in if they object to that now? Our leverage is at this point in time. We should take full advantage of it to achieve the best deal for British citizens.

The case I want to make is for operational co-operation with our EU friends without ceding democratic control. Britain has—by far, overall—the finest intelligence and law enforcement assets in the EU. The EU has legal personality, so it is much easier to negotiate justice and home affairs agreements. I have asked parliamentary questions on this. The EU has countless, by which I mean a good 10 or dozen, justice and home affairs international agreements with third countries. We have the precedent of Frontex—we are not a full member but co-operate on an administrative basis, which works incredibly well. We need to avoid the creeping supra-nationalism of the EU in justice and home affairs.

For all the talk of EU justice and home affairs safeguarding British law enforcement, the raw fact is that EU JHA has severely undermined our power to protect the British public by removing or deporting serious criminals. That will only get worse in the years ahead.

[Bob Stewart]

I seek clarification from my hon. Friend. Interpol has a red arrest warrant. Is that in any way connected, because I have been arrested on a red warrant in the Crimea?

[Mr Raab]

I want to be very careful in not passing judgment about any arrest warrant on my hon. Friend that may be pending, not least with the Select Committee on Defence hustings looming, but my understanding is that the Interpol red notice is more of an alert than a binding warrant for surrender.

We need to look not only at what is going on within the EU. It is suggested that EU law provides best practice, and yet one might get a different view if one asks a senior Swiss diplomat, as I did recently at the Fresh Start project, which was organised by my hon. Friend the Member for South Northamptonshire (Andrea Leadsom). I asked the senior Swiss diplomat: “When you look at the whole area of EU justice and home affairs and at crime and policing, is there anything that you miss or want?” He said, “Absolutely nothing. The reality is that good law enforcement is done by the phone—by good operational contacts. It is a question of how you make things work in practice. It is not done by hyperactive legislation.” I then asked a senior US diplomat whether the US would ever consider sacrificing so much democratic control over law enforcement in its relations with any neighbour in north or south America, and whether the US would ever go down that route if it is such a great idea for the EU and Britain. They said: “Absolutely no chance.” No other region of the world is remotely thinking about enhancing the integration of law and ceding democratic control in justice and home affairs.

I understand that the crude political tendency is to dress up Euroscepticism, or any substantive critique or analysis, as the product of an insular, little-Englander mentality, but when we look globally, we see that no one else is going down that route. Why is Britain not taking into account the best practice from around the world, including in our Commonwealth partners such as Australia and New Zealand, and in the US and Canada? Why are we not looking at our excellent law enforcement relations with those countries? Why is the EU always presented as having the best law enforcement relations in the world when that does not seem to be based on any empirical evidence?

We should take advantage of the power we have in the Lisbon treaty to reform our relationship with the EU in the vital area of justice and home affairs. This is an important strategic crossroads for Britain. If we do not reform justice and home affairs now, using that important treaty lever, when will we do so? We always have promises of jam tomorrow. Such a reform would be an important precursor and complement to the wider EU negotiation that the Prime Minister has very wisely said Britain needs.

It is incredibly important that we take this opportunity to stand up for the liberty of British citizens, and for the democratic prerogatives of the House and the people who send us here. If we cannot have operational co-operation without ceding democratic control, we should have the courage of our convictions and say no. I want strong law enforcement and operational co-operation with our EU partners, but not at any price.