Criminal Procedural Rights (Opt-in Decision)

Geraint Davies Excerpts

Tuesday 18th March 2014 Commons Chamber

[Chris Grayling]

My hon. Friend highlights an area about which I am concerned, and on which there are perhaps disagreements within the coalition. Although there are democratic checks on the court system in this country—if Parliament does not agree with a Supreme Court ruling, it has the option of changing the law accordingly—the same is not true of international courts.

We have a lively discussion in the coalition about our future relationship with the ECHR, but if we start to hand over key elements of the working of our justice system to the ECJ, there is a real danger that in an attempt to harmonise, we will lose some of the things that make our system strong. There is no doubt in my mind that English, Scottish and Northern Irish law are highly regarded around the world, and I would not want to see them internationalised. If that happened, the distinctive features that make London, Edinburgh and Belfast attractive legal centres might be less pronounced than they are today.

[Geraint Davies (Swansea West) (Lab/Co-op)]

Does the Secretary of State agree that there is a case for minimum standards for the treatment of child defendants, and for people to have the right to appear in court and to be considered innocent until proven guilty? What is wrong with that? Why should other people not share those values?

[Chris Grayling]

In some respects, the hon. Gentleman is right, and that is what we do in this country. The question is whether he believes we should hand over future decision making about our judicial process and court process to an international court over which we have no control. He and his party clearly think that we should. I do not, and that is one of the things that divide us.

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[Chris Grayling]

That is the point. We have 800 years of legal tradition in this country. It has evolved in a number of different ways and is subject to change and review in both the courts and our Parliament. I do not really feel that we need to bring a third body into that relationship. To my mind keeping the European Court of Justice at arm’s length over these matters is absolutely where we need to be.

[Geraint Davies]

On that point and the point made by my right hon. Friend the Member for Leicester East (Keith Vaz)—with which I do not agree, incidentally—the age of criminal responsibility in Britain for children is 10, which is far younger than elsewhere in Europe. Children are required to go to a full criminal court. Surely there is something to be learned from others, or are we too arrogant to listen?

[Chris Grayling]

The hon. Gentleman and I are on different sides of the House. When we disagree on different issues we can debate them in this House. If it is his view that the age of criminal responsibility in this country is too low, it is perfectly reasonable to articulate that in this House, to bring forward measures that could change that, and for us to debate it. My issue is that that is a decision for this Parliament and not for elsewhere, which is why I am taking the view I am this afternoon.

It is also worth saying that the proposal seeks to establish that any deprivation of a child’s liberty must be as a matter of “last resort”. The notion that children should not be detained unless necessary causes little difficulty in the UK, but it is obvious that it introduces a different test from that which currently applies in England and Wales in which children are deprived of their liberty if it is considered necessary—during a police investigation or on remand awaiting trial. That would also have to be subject to reconsideration if we were to opt into this measure and could lead to significant changes, which should be a matter for this Parliament and not for anyone else.

Given that the UK has one of the most comprehensive and generous legal aid regimes in the world, it will perhaps not surprise this House that our analysis suggests that our current practice—in England, Wales, Scotland and Northern Ireland—means that we are already compliant with the majority of the provisions of the proposed directive. We might, therefore, argue that as it does not ask much change of us, it would be fine to opt into it. However, it does require some change. It requires changes to procedures around the entitlement of somebody who is subject to a European arrest warrant to receive legal advice both in the country of arrest and the country that is seeking arrest. That would have small financial cost for us, but it is, none the less, a financial change that would be imposed on us. It would not be a priority area for us to increase legal aid spending at a time when the legal aid budget is, for necessary reasons, under enormous pressure.

It is not necessary or appropriate for our legal aid system to come under international rules. The level and nature of spend should be subject to a decision in this House. It should be a matter for Parliament. I do not think that we should pass over ultimate jurisdiction over our legal aid rules to the European Court of Justice, which is why I have said clearly that I cannot conceive of a situation in which we would wish to opt into this. I am therefore not prepared at this stage to leave that door open. It is not what this Parliament or this country want. I will not try to pretend otherwise. Let us be clear and up front and say that this is not something of which we wish to be a part.

[Geraint Davies]

Perhaps the right hon. Gentleman can confirm the estimated costs of that measure in terms of added legal aid costs. My understanding is that it is just £200,000, compared with his budget of £7.5 billion. It is not significant, so he is talking about the principle rather than the money.

[Chris Grayling]

I just said that it was not a large amount. It is a question of principle. Do we want decisions about legal aid entitlement to be taken in this Parliament by Government, scrutinised by the Select Committees of the House and by Parliament itself, or do we want to subject ourselves to an uncertain international jurisdiction that may, at a later date, decide that we have to do things in a wholly different way from the customs and practices in this country, often with a cost that is simply not budgeted for? My view is that we do not want that, and I propose that we do not accept that.

I have set out here in both general and specific terms why the proposals present difficulties in the UK, why, in their current shape, we could not support them and why we conclude that we should not opt into any of them. There is, of course, a question about negotiability, and these texts are not final. They may be open to changes in discussions in Brussels, which may improve them, but our assessment at this stage must be taken on the basis of the presented text; we have no other basis. It is of course possible that the proposed directive will change for the better in negotiation, but it is also possible that it could change in a way that make things even more problematical. We do not know for sure. We face a new Commission and a new Parliament in the summer. The Lisbon treaty provides co-decision making to the European Parliament. Matters relating to these directives can be amended in that Parliament and could theoretically impose costs on us that are absolutely not budgeted for.

It seems to me that the scale of our difficulties with the current proposals on the presumption of innocence and legal aid are such that it is difficult to foresee any realistic prospect of negotiating them to a conclusion that the UK could now accept. They are simply too far away from acceptability. Although we will continue to monitor the forthcoming negotiations, we will be clear about our position at the outset. I hope that that clarity will be useful to the House and that the House will support it this afternoon.

The proposals on child defendants also present significant difficulties and I do not underestimate them. I think it is pretty unlikely that we would be able to secure changes that would make them acceptable or better. That is why we are recommending this afternoon that we should also indicate that we will not opt in. I have instructed officials that they should participate in the negotiation to see whether changes made at a later date would be advantageous to this country. I am not convinced that that will happen, but I have left it open as a possibility. That was what was agreed across the Government.

I will ask my officials to work closely with interested Departments, including the Home Office and the Foreign Office, to ensure that the message is communicated effectively to our EU partners and is factored into wider engagements on matters such as the 2014 decision. My view is that the proposal I am laying before the House this afternoon is in the national interest. I have considered carefully the different measures and I am very clear that it is not right for the UK to opt into them, but it is important that this House has its say. I hope that the House will endorse that approach and that everyone in the Chamber will feel that it is right to accept our proposals and support the motion.

[Mr Andy Slaughter (Hammersmith) (Lab)]

I can be fairly brief in addressing these three draft directives. That is not to say that they are unimportant both in themselves and in the context of European legislation, but the Government’s approach to them has been so casual and tardy that the ground has not been laid for sensible debate. I pray in aid the article in tonight’s Evening Standard entitled “EU law change ‘could help drivers escape speed fines’, says Chris Grayling”. That is how the Lord Chancellor sums up these three important draft directives for the public at large. If one were cynical, it would be tempting to assume that when the Secretary of State hears that European legislation is to be debated he first ignores it and then decides to oppose it not because of its merits but because it is European.

It is good to see the Secretary of State proposing the motion. The previous Lord Chancellor used to leave it to his junior Ministers; I wonder why? The current Lord Chancellor’s appearances in the House are rare compared with those in the Evening Standard, but I think that he has come for the approbation of the hon. Member for Stone (Mr Cash) and others rather than to give a reasoned opinion on the matter in hand. His opening speech has sadly confirmed that. The Chair of the European Scrutiny Committee is too wise a man to play the Secretary of State’s game, as the Committee’s reports in the bundle make clear.

Let me first set out the Opposition’s position on the draft directives and then have a little moan about how they have come before us. The presumption of innocence is speedily dealt with. We debated it in the Chamber a month ago and my opinion has not changed since then. I gave two reasons why we would agree with the Government and not support the opt-in. They were:

“First, it is not the difference in standards or the falling short per se that provokes the draft directive, but the alleged effect that has on confidence in the judicial systems in states that are failing. There is anecdotal evidence to support that; indeed, much of the debate about the European arrest warrant focused on worries about the criminal justice system in the extraditing state. However, as the Commission itself concedes, there is ‘limited statistical quantifiable evidence’, and that is not a good basis for such a radical restructuring of European criminal law”—

and—

“Radical though the draft directive may be—this is the second problem—it goes beyond what the ECHR demands.”

That is the point made by the Committee Chairman. I went on:

“For example, under the Police and Criminal Evidence Act 1984 and subsequent legislation, it is permitted in English criminal courts to draw inferences from the silence of the accused. The burden of proof does not always lie on the prosecution, and the right to representation, interpretation and translation varies at different stages of the criminal process. I do not seek to defend the law in its current form by saying that, but I do say that the directive is not the means by which to open a wholesale review of those and other provisions of the criminal law.”—[Official Report, 10 February 2014; Vol. 575, c. 671.]

Interestingly, in Committee on the Criminal Justice and Courts Bill, we are about to debate further provisions that would allow for more speedy and, the Government would say, effective trial of cases in absence on minor offences. That partly organic and partly operational process of the courts is a good example of why it is wrong that we adopt that particular draft directive.

The two other draft directives are more compelling. They go to the practice and procedure in the law, rather than its fundamentals. They sit more comfortably with the three measures previously debated and decided on by the Government.

[Geraint Davies]

My hon. Friend will be aware that we already practise the assumption of innocence unless proven guilty and people’s right to be present in court. Is it not part of this partnership to promote best practice to others, rather than to abstain completely in the way the Government have, in particular by not providing the data to the EU Commission on the effectiveness of the justice system? We are the only country not to do that. It is ridiculous.

[Mr Slaughter]

My hon. Friend makes a good point. Where that is possible we should do it, and I will refer to a draft directive where we took exactly that line. I simply say in relation to the draft directive on the presumption of innocence that it was proving too difficult to accommodate the principally Roman law system of the other EU countries with our developed system of common law. It was just impossible. However, it does not stop us advocating within the EU on those matters, which we do very well; I just do not think that they are entirely compatible.

The Government opted in to the directives on the right to interpretation and translation in criminal proceedings and on the right to information in criminal proceedings. I do not know whether that was because they were prior to regime change at the MOJ—a regime change so dramatic it makes the regime change in Crimea look positively evolutionary by comparison. We disagreed with the Government on the directive on the right to access a lawyer in criminal and European arrest warrant proceedings and voted against them because their arguments were poorly structured and articulated.

I have re-read the debate from 7 September 2011 and I am more than persuaded by the arguments that I put forward on that occasion, even though it did put me at odds with the Chair of the European Scrutiny Committee, something that I am loth to do, given his reservoir of knowledge on these matters. The Law Society Gazette, an esteemed publication, reported me as saying that

“the government’s reasons for opting out of that directive were ‘at best unconvincing and at worst spurious’.”

It went on:

“He said the directive’s requirements are ‘broadly in line’ with current UK legislation and by not opting into it the government would ‘appear to be throwing away an advantage to British citizens’. Opting out at this stage, he said would ‘fatally’ undermine the UK’s authority and leverage during the negotiations. He added”–

presciently—

“‘it looks as though the government are looking for reasons to opt out at this stage’”—

something that has now become commonplace.

I mention that first, because I think that that directive had more in common with the other two draft directives that we have before us today, and secondly, because we do not resile from voting against the Government when we think that it is appropriate. Interestingly, one of the reasons for not opting in to the draft directive on safeguarding children’s rights is because part of that refers back to the directive on access to a lawyer. We clearly do not adopt that point. There are good reasons for supporting the draft directive on children’s rights, even on the Government’s case, as there are for favouring the right to an appropriate level of legal aid across the EU. The difficulty with supporting those draft directives is that the position is still far from clear.

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[Mr Slaughter]

I do not accept the argument that everything that comes out of Brussels is necessarily evil or inimical to the interests of this country, which appears to be the bizarre position that the Lord Chancellor has painted himself into. Uncharacteristically, we will sit on our hands tonight in relation to two of the draft directives. To answer his question directly, I do not rule out any future opt-in, as of course the Government do not in relation to the directive on access to a lawyer, because I understand that their position is that they still might opt in. Even with the spin that he has put on it, I understand that for at least one of the draft directives there is a possibility that negotiations will lead to an opt-in. I welcome that pragmatic approach. It is a conservative approach, but it keeps the door open, rather than taking the radical approach that the Lord Chancellor would like to be seen to be taking.

[Geraint Davies]

Surely the point on legal aid is that this is to protect British citizens who might be wrongly accused and languishing in an unfit foreign prison, and to provide them with some legal support, at a total estimated cost of £200,000—a fraction of the value of the Home Secretary’s house.

[Mr Slaughter]

My hon. Friend makes a good point which is exactly the one I made in relation to access to a lawyer: it is primarily British citizens abroad who would benefit. Yes, there is a moral purpose in our trying to get other EU countries to adopt the high standards that we have in this country, but there is also a practical purpose in trying to ensure that when British citizens get into trouble abroad they get the best assistance that they can in those countries. That is why it is sensible, where possible—as in two but perhaps not in the third of these draft directives—at least to keep the door open.

I wish that the Government would address these proposals seriously and not in a rhetorical and political way, and that they would respond to the Committee’s requests more timeously. The pertinent quote from the Committee is this:

“We repeat again our disappointment at the poor quality of the Government’s”—

explanatory memorandums—

“on the three proposals forming the Commission’s procedural rights package, particularly in the light of the time taken to draft and deposit them.”

I am afraid that this is becoming typical of the way in which the Ministry of Justice operates. It is to a low standard and it shows a certain degree of, if not contempt, then at least disregard for this House and its Committees. If the hon. Member for Stone cannot elicit discipline and compliance from the Secretary of State, then it is beyond me, but I feel that the debate is poorer for it.

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[Geraint Davies (Swansea West) (Lab/Co-op)]

I am sympathetic to the directives. The case for minimum standards across Europe has partially been made already. We live in a new Europe where people are mobile and in which people expect minimum standards. I understand that people are attached to their different judicial systems. There is a move in Wales to have a new, devolved judicial system. We could have lots of different and confusing judicial systems everywhere. There is a case for having our rights in Britain, but there is also a case for having minimum standards.

We should take a sensible approach to this matter, rather than our instinct being that everything is wrong and that we should have a block opt-out. There is a cost to British citizens in that. In this case, it is that dangerous criminals will be roaming around Europe and evading detection through confusion and a lack of co-operation.

The presumption of innocence and the right to be present are established in our law. I think that we should trumpet our best practice and encourage the adoption of minimum standards in countries that are entering the European Union. When British people go abroad, they expect those standards to prevail. Instead, we are saying, “We’re doing what we like and we don’t care what you’re doing. If you like it, you can take it, but it’s nothing to do with us.” We should be taking leadership, not being isolationist. It is the mentality of the UK Independence party and the Scottish National party to say, “We know best where we live.” That is certainly not the case.

The children’s rights directive says that there is a right to information, a right to a lawyer and a right to medical examination. I mentioned in an intervention that the age of criminal responsibility in Britain is very low at the age of 10. That is one reason why we need to afford our children the maximum possible protection. They are much more vulnerable than their European counterparts because they can be criminally responsible at a much younger age. In my view, there should be video recording of interviews with children. There is a strong case for medical examination. We are virtually alone in preserving the defence of reasonable chastisement. The British continue the ritual of hitting their children—smacking and all the rest of it. Having medical examinations in such cases is important to protect our children. It is also right that children should have a right to maintain contact with parents and guardians. The lot of children in Britain is not a happy one in comparison with the rest of Europe. We have something to learn. It is wrong to take the arrogant approach that we do everything right and they have all got it wrong.

When people are mobile within one community, they should be afforded the same rights—hence my support for the legal aid proposal. We have talked about costs, and we know that legal aid carries massive costs, but the costs of protecting UK citizens abroad who may have been wrongly accused and left in jail are estimated at £200,000 a year. That is very little to afford people that right. However, in the name of anti-Europeanism we are saying, “Oh, we don’t want them interfering with what we’ve got.” We live in a common judicial market in some senses, and we can have minimum standards while retaining our own laws.

The case is always made that if we agree to one step, the journey will continue endlessly and it will be the thin end of the wedge. I do not accept that. I believe that we should have a more mature and joined-up approach to debates such as this and take a selective view of the directives before us.

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[Chris Grayling]

I entirely accept that. We will try to ensure that we do what we can to supply the right information to Committees in the future.

The right hon. Member for Leicester East (Keith Vaz), who is no longer in the Chamber, made the valuable point that we should be cautious about the issue of jurisdictions. That is what lies behind my concern about measures such as these. It is important to understand that an opt-in is not—as was implied by the hon. Member for Swansea West—a simple process. It is not just about setting an example to the rest of Europe. It is about accepting the jurisdiction of an international court in regard to important areas of law. As was pointed out by my hon. Friend the Member for Stone (Mr Cash), there is no right of appeal following a ruling from the European Court of Justice. My hon. Friend also rightly observed that our judiciary are increasingly concerned about the role of international courts. On a number of occasions recently, they themselves have suggested that decisions that should be made in our courts and our Parliament are now being dealt with on the international stage. It is clear that that is causing some discomfort to at least some of them.

[Geraint Davies]

Will the Justice Secretary confirm that the Government are still negotiating on the issues of children’s rights in courts and legal aid, and that those negotiations have not been stonewalled?

[Chris Grayling]

We have told our European partners—and will do so again if the House approves the motion tonight—that we will not take part in negotiations on the first and third directives, on the presumption of innocence and on legal aid. We will say up front that we do not intend to opt in, either now or in the future. That is a decision that has been agreed across Government, and one that we do not intend to reverse. We will provide observers for the negotiations, but they will not participate in detailed negotiations. As I said, on the second directive involving children we do not intend to opt in; we will indicate that up front. We will participate in the negotiations in case, although it is unlikely, something emerges that this House may want to consider again, but it remains the Government’s position that we do not expect, nor want, to have to opt into the directive, but we will sit around the table while it is negotiated.

There is clearly a broader issue here about minimum standards measures. As my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) pointed out very articulately, what we must understand is that we have a different legal system from the rest of the European Union. The hon. Member for Hammersmith made the same point. If we accept minimum standards measures, step by step they take away the ability of this Parliament and of our courts to shape our justice system. If we decide on any occasion to opt into such a measure, it is of paramount importance that we understand the implications of doing so.