Presumption of Innocence and EU Law

Jacob Rees-Mogg Excerpts

Monday 10th February 2014 Commons Chamber

[Mr Cash]

I am grateful to my hon. Friend for that intervention, because I rather agree with him. Whatever the aspirations of the Scottish nationalists and those campaigning for independence, I am afraid that at this juncture what they have to say, however worthy it may be, will not be within the criteria set out for reasoned opinions under the yellow card system.

I ought to say that I have had grave reservations about the yellow card system from the very beginning. I have never thought that it is a matter that should be decided by an aggregation of member states—if they choose number X, why not choose number Y? The fact is that if a member state wishes to act, in its own national interests—the Minister, judging by what he said, regards this as a matter of critical national interest—I suggest that the reason for disapplying or vetoing laws should rest with one member state, as my Committee’s report made clear, because it becomes invidious to choose a particular number rather than another.

The real question is whether the matter is sufficiently important in the interests of the democracies, the legislatures and the constitutional arrangements of a given country for there to be a veto. Indeed, I must commend my right hon. Friend the Prime Minister, who vetoed a treaty only a few months ago, and what is sauce for the goose is sauce for the gander. For this purpose, I think that there is a very strong case, where it is sufficiently important in the national interest, to go beyond the yellow card system.

[Jacob Rees-Mogg (North East Somerset) (Con)]

While my hon. Friend is talking about the yellow card system, is it not worth pointing out that the judge of whether the threshold is well enough argued once it has been met is the European Commission itself, so it ends up judging its own decision?

[Mr Cash]

My hon. Friend, as ever, is completely correct. In the case of the European public prosecutor, the threshold was actually exceeded, and what did the Commission do? It just said that it would go ahead anyway, with complete contempt for our Parliament and the others. That is really what is at stake in these circumstances. It is extremely disturbing. There is no need to enlarge that argument, so I will leave it at that.

We have had a fair description of what the measure is about from those on the Front Benches, so I will simply draw the House’s attention to the fact that, with regard to process, it is unreasonable to expect Parliament to come to an informed view on compliance with subsidiarity within the eight-week time frame allotted for issuing a reasoned opinion without the benefit of an analysis by the Government. The Minister, who may have been drawn into this somewhat at the last moment, would perhaps agree with that; I hope so.

Why was it only at the second time of asking, in a letter sent four days before this debate, that the Government gave a clearer indication of their view on subsidiarity? To put it bluntly, the Government have been prevaricating; they were not clear about their position until very recently. On the substance, however, I welcome the fact that in that letter the Government have belatedly accepted that

“a lack of evidence of necessity renders a proposal in breach of the subsidiarity principle”.

I would have thought that that was an unexceptional circumstance, but I nevertheless welcome it. I also welcome the fact that, given that the Government have accepted that the Commission has not complied with the procedural requirements placed on it to provide a detailed statement appraising compliance with subsidiarity, the Commission has agreed with the European Scrutiny Committee. We relied on both those arguments in our reasoned opinion, and we are therefore grateful and glad that the Minister has decided to support our proposal.

We note—I would be grateful if the Minister responded to this point—that the Government’s view is still conditional. There is a little bit of fudging going on. They use the phrase,

“if in principle the need were to be established”.

From what source—other than the impact assessment, which lacks the necessary evidence—do the Government think the Commission will be able to establish evidence of need? We also note that the Commission recognises that there is—believe it or not, in relation to a matter of this importance—

“limited statistical quantifiable evidence on insufficient mutual trust between the Member States”.

How, therefore, can there be the slightest justification for action at EU level? These are not mere words; they are about the application of the presumption of innocence in relation to EU law.

On a technical point, the legal base of article 82(2) of the treaty on the functioning of the European Union specifically requires evidence of necessity to facilitate mutual recognition. On the difference between the approach to the European convention on human rights taken by the EU and by the European Court of Human Rights at Strasbourg, I ask the Government to what extent they agree with the paragraph in the Commission’s impact assessment cited in the draft reasoned opinion, as follows:

“The ECtHR’s reluctance to lay down prescriptive requirements in these areas, which can be seen as a rationale for an EU measure. The approach of the ECtHR has not been especially activist in developing detailed and prescriptive rules in the area of Article 6(2) of the ECHR. It has left a margin of flexibility for presumption of innocence and related rights in light of the requirement to balance the fair trial rights of suspects”—

I know that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who is Chairman of the Justice Committee, will appreciate that—

“or accused persons with the general public interest, as well as the diverse legal traditions of Member States.”

The Committee concluded that not being “especially activist” was a trait that we strongly welcomed and should inform the decisions of any supra-national court.

We have produced our report and we are grateful that the Government have somewhat belatedly come to the right conclusions on this. We regret that it is only in the past few days that we have got fully engaged with this subject, but we are now glad that the reasoned opinion will go from this Parliament to the European Commission with the support of the sole Member on the Opposition Benches as personified by the hon. Member for Hammersmith. It is important that we do it, but what worries me is that it looks as though it will be doomed unless other member states come forward. If they are not as interested as we are in the matters raised by our Committee, that will be very sad for the European Union as a whole.

--- Later in debate ---

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

Let me start, Mr Speaker, by apologising for missing the Minister’s opening comments.

I thank my hon. Friend the Member for Stone (Mr Cash) and the members of his Committee for bringing this matter to the attention of the House. It is yet another example of the fine work that they do in scrutinising and painstakingly going through the masses—hundreds and hundreds—of EU regulations and directives that emanate from Brussels to identify those that are worthy of consideration in debate on the Floor of the House.

This is such a measure and, frankly, it goes to the very heart of the British legal system—the presumption of innocence. Quite frankly, it is staggering that the EU should try to lecture this country. That is what it boils down to: the EU is trying to tell this country how to run its justice system, and trying to interfere with what we determine about the innocence of a subject until they are proven guilty in a court of law. This is just a further building block that the EU Commission sees as a stepping stone on its way to building an EU-wide common system of criminal justice, but it is one that we ought strenuously to oppose.

I am quite happy that we are being asked to approve the Government’s proposal to send a reasoned opinion back to Europe about why the measure fails the test of subsidiarity. In my mind, it certainly does fail that test, but like other hon. Members, I am extremely concerned that it appears that we will once again stand alone in our opposition to it. My understanding—I look forward to hearing from the Minister whether it is correct—is that the deadline for objections from member states is 12 February. If that is the case, there is very little time for this Parliament or any others to lodge objections. It therefore seems likely, although I wish it were not the case, that the measure will pass.

[Jacob Rees-Mogg]

Does my hon. Friend take the comfort that I do from the Government’s firm stance, in that even if no other Parliament sends in a reasoned opinion against the proposal, it would be eccentric of the Government, because it is subject to our title 5 opt-out, to opt in to one that is thought not to meet the test of subsidiarity?

[Mr Nuttall]

Absolutely. I for one certainly hope that the Government will not feel that it is necessary to bow to the will of Brussels on this measure. Although I am at one and in accord with the Government on their proposal this evening, I would have to depart from that course if they tried in future to suggest that we should adopt it given that the European Commission seems likely to pursue it. Bearing in mind this country’s proud history of establishing our own system of common law and the rights of an individual to be regarded as innocent until proven guilty, I see no reason why we need lecturing from the EU on this matter.

--- Later in debate ---

[Mr Vara]

I am grateful to the Members who have contributed to this debate. It is good to see that there is agreement, because often there is not on this subject.

I made it clear at the outset that this was a matter for the House and that the Government were facilitating its consideration. Members have said loudly and clearly that they support the reasoned opinion of the European Scrutiny Committee and its submission to the European Union institutions.

I will address some of the points that have been raised by Members. When the hon. Member for Hammersmith (Mr Slaughter) spoke, he had no support from the Opposition Benches. However, he has a reputation for more than making up for that through his use of words. He did that today, as he always does. I thank my hon. Friends the Members for Stone (Mr Cash), for Aldridge-Brownhills (Sir Richard Shepherd) and for Bury North (Mr Nuttall) for their contributions.

I want to respond to the point that was made about the explanatory memorandums that were submitted. Five instruments were received at the outset, which was a lot of information. We tried to supply the House with as much information as possible within the time constraints that were on us. We provided the explanatory memorandums and there was criticism of them. Letters were passed between the European Scrutiny Committee and the Department. We subsequently provided further information. The Justice Secretary has apologised for the delay and given an assurance that we will try to provide more full and more timely responses in future. I have no hesitation in reiterating that apology.

The red card system is difficult to use in practice because Parliament cannot simply rid the UK of its obligations. Under the European Communities Act 1972, as the law stands we cannot pick and choose which EU law to implement beyond the terms of our opt-in for justice and home affairs matters.

[Jacob Rees-Mogg]

Is it not open to the House to amend the 1972 Act?

[Mr Vara]

Given the Prime Minister’s assurance that we will try to renegotiate a whole series of measures, I think the best way forward is to have that engagement with the European Union, get a series of proposals, and then go to the country for people to have the final say. The 1972 Act has existed for a long time, and there is not long to go from now.