Criminal Procedural Rights (Opt-in Decision)

Jacob Rees-Mogg Excerpts

Tuesday 18th March 2014 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Chris Grayling)]

I beg to move,

That this House takes note of European Union Documents No. 17621/13 and Addenda 1 to 3, a draft Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, No. 17633/13 and Addenda 1 to 3, a draft Directive on procedural safeguards for children suspected or accused in criminal proceedings, No. 17642/13, a Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, and No. 17635/13 and Addenda 1 to 3, a draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European Arrest Warrant Proceedings; and agrees with the Government that the UK should not exercise the opt-in to these measures.

I am pleased that the European Scrutiny Committee has called this debate, as these potentially important matters are of interest to Parliament and the public. The three proposals to be considered today all flow from the Stockholm work programme agreed in 2010, and two of them flow directly from the criminal procedural rights road map agreed in 2009 and later confirmed in the Stockholm programme. We have been presented with three directives, which appeared at the same time and which share a common date of 19 March for a decision on whether the UK will opt in. The decisions are individual and specific to each proposal.

I can tell the House that we have considered each proposal carefully. In line with the coalition agreement, we have looked at the potential benefits and disadvantages of UK participation to the national interest on a case-by-case basis. We asked ourselves whether it is in our national interest to be bound by any or all of the proposals, and we have concluded that it is not. The motion is therefore clear that we are minded not to opt in to any of the proposals, and I of course look forward to hearing the views of the House this afternoon.

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

I congratulate my right hon. Friend on his absolutely right decision, but can he confirm that it is the intention of Her Majesty’s Government not to opt in at any stage?

[Chris Grayling]

I was going to make reference to that. I can confirm that we have agreed that we will not participate in the first and third item at any stage. We have agreed across the coalition that we will take a look at the second item in the discussions that take place. We will participate in the negotiations, but I say to the House this afternoon that I do not expect, at the end of that process, any change to the decision that we are proposing, which I hope the House will endorse this afternoon.

I have also given our officials permission to take part as observers in the negotiations on the other two measures, because, naturally, I am keen to ensure that our European partners take sensible steps, too. It is right and proper that we should be aware of what takes place, but I could not conceive of a situation where we could consider taking part in the presumption of innocence and the legal aid matters. Therefore, it is not our intention at any stage to participate.

I was glad to see that the European Scrutiny Committee has also concluded that the UK should not opt in to the proposals, so we are of one mind on them. It is also worth highlighting that we are considering these three measures alone today, and that the Government continue to engage with the Commission on wider 2014 measures. I will briefly discuss the possible pros and cons of each proposal, as it is important that the House understands the basis for our decisions and the proposal we are putting to it this afternoon. First, I wish to make a general point relevant to each of the proposals. Each of them would of course apply to all criminal cases in the UK. None is restricted to cross-border cases. That means that if we accept any of the proposals, we also effectively agree that, henceforth, the relevant matters of internal procedural law will be determined at an EU level rather than here. In addition, the highest court overseeing the implementation and interpretation of the rules would thereafter be the European Court of Justice and not any UK court. That is, of course, true of all EU laws, but it is important to bear that in mind as we consider the proposals.

I remind the House that the agreement we reached on the 2014 measures is that we do not believe that Britain should be part of a European justice system. We do not believe in the harmonisation of court and legal procedure, and our decisions reflect that view. I do not agree with those who wish to create such a unified system. Other member states are free to do so if they choose, but we have decided that this country should not be part of such an approach.

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

The hon. Member for Hammersmith (Mr Slaughter) quoted his speech in 2011, but it is his speech today that ought to go down in legend and song. Indeed, a sentence from it should be engraved in the deepest, finest granite and remembered by all of us who are interested in this debate, for he got absolutely to the heart of the subject when he said that the problem is trying to impose a system of Roman law on a common law system. That is at the heart of the difficulty of imposing anything from the justice area on the United Kingdom. I rejoice at his saying it, because I hope that it shows a change from his attitude in 2011, when he was quite keen on opting into things. I did not agree with the vision of his previous speech, but this one was of the greatest quality, nobility and thoughtfulness, and I hope that it receives the praise it deserves.

While in this mood of good will, I want to praise the wisdom of my right hon. Friend the Lord Chancellor. In opting out of the three important directives—and, indeed, from the directive on right of access to a lawyer—he has avoided falling into the European trap. A number of directives are coming through in the justice and home affairs area, particularly on the European arrest warrant, which we have opted into, and the trap is very serious. Once we have opted into one thing, the next step is to say that because it is possible for a British citizen to be arrested by a foreign court and taken out of this country to be tried in a foreign place, losing the rights that would normally belong to a British subject, we need to impose other safeguards, but to impose such safeguards we need common rules to ensure that treatment is the same and that we have a pan-European view on the presumption of innocence.

Such a view is needed because a British subject can be taken out of this country and taken abroad without any questioning in this country of whether their trial will be fair and proper. As that can be done under the European arrest warrant, we are led to say that it is only right and proper to have safeguards on the presumption of innocence. Exactly the same applies to the directive on procedural safeguards for children and, tying in with it, the right of access to a lawyer.

Once there is common acceptance of other nations’ legal systems, we begin to say that they will work only if we have common safeguards, and once we begin to accept common safeguards we are effectively implementing a single criminal law across the whole of Europe. Once that has been done, legal aid must of course be unified across the European Union, because the person arrested needs to be able to afford the defence to which they are entitled, in accordance with laws laid down by the centre.

This is not a matter of co-operating with European partners or of saying that there is a proper degree of justice in some European countries to which we are willing to extradite our citizens; it is a question of saying that we believe that ours is the only way to ensure proper justice in relation to some relatively undeveloped judicial systems. I am thinking of some countries that have joined the European Union more recently, particularly Croatia. In our debates about its application for membership of the European Union, we discussed the difficulties in its judiciary and police that were not solved before it joined. Despite the European Union’s requirement that they should be resolved, it was allowed to leave them to be improved after it joined. The same applies to Romania and Bulgaria. Once it has been accepted that such countries have the right to arrest British subjects, it inevitably follows that common standards of protection must be applied, with an overall court of appeal that can review it. Those are the stepping stones towards a single European criminal justice system.

I praise the Lord Chancellor because he is now, I hope, taking the stepping stones in the other direction. We have had the block opt-out. We have restored to the United Kingdom rights over justice and home affairs. Unfortunately, we have not settled on which items we wish to opt back into. When that list comes forward, it is crucial that the things that we opt back into are not used as an excuse for bringing back the measures before us. I am thinking in particular of the European arrest warrant. As soon as that is in, the presumption of innocence must be a pan-European right, because nobody in this House would like a British subject to be deported to a foreign country and not have the presumption of innocence in his favour. The same is true of the other two measures that we are countering.

I hope that in the battles that go on within Whitehall the Lord High Chancellor will know that he has the support not just of Conservative Members but of the bulk of the country in standing up for our common law system against, as the hon. Member for Hammersmith reminded us, a Roman law system that is not suitable for this nation.

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[Mr William Cash (Stone) (Con)]

I am extremely glad to be able to commend the Lord Chancellor and Secretary of State for Justice for his good decision on the directives. Inevitably, I am pleased that he has agreed with the European Scrutiny Committee. We spent a lot of time on the subject and gave our opinions, and I am glad that he has taken a similar view to ours. That has a consequence, of course, because although we hoped for a three-hour debate, there is no need for one when there is such a healthy degree of agreement between the parties, subject only to a few comments that we have just heard from the hon. Member for Swansea West (Geraint Davies).

[Jacob Rees-Mogg]

Is my hon. Friend struck by the fact that when the Conservative party is Eurosceptic, it is united?

[Mr Cash]

I am indeed. I must be careful in what I say, but I simply note that when the Lisbon treaty was going through the House, I tabled 150 or so amendments, and there was complete unanimity among me and my close friends of the Euro-realist type, who supported those amendments, and the Opposition as a whole. The Conservative party was completely united right the way through the proceedings, for the first time since 1972. My hon. Friend is completely right, and there is a strong lesson there.

Moving on to the substance of the matters in question, Lidington debates form part of a package of measures that were intended to

“significantly strengthen Parliament’s oversight of EU Justice and Home Affairs matters and make the Government more accountable for the decisions it makes in the EU.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]

That was what the Minister for Europe said in his written statement in January 2011, and it is important that we put it on the record. It is therefore disappointing—this is the only caveat to my otherwise considerable appreciation of what the Justice Secretary has done today—that, yet again, the Government were unable to give the Committee adequate notice of their recommended approach to the opt-in decision. That is a great pity, because we would not have needed to request a three-hour debate. There would not have been any need for it, subject to the agreement of the Opposition Front Benchers. I suggest that it would be helpful to understand what steps the Government intend to take to improve the process for holding Lidington debates and how they will ensure that their internal decision-making procedures do not continue to hamper the timely provision of information to Members of Parliament.

I also wish to make a point about explanatory memorandums. In the Committee’s initial report, we stated that we were not satisfied with the quality of the memorandums relating to all three proposals that we are discussing today. We have said that before, but I wished to put it on record again. That is a matter of concern to us in relation to not just the Ministry of Justice but Departments in general. The explanatory memorandum is the most important information that can be made available—I do not mean when compared with everything else, but it is important in its own right. It is therefore extremely important, as we say in our European Scrutiny Committee report—for which we are awaiting the Government’s response—that explanatory memorandums are of sufficiently high quality, because that is the basis on which we hold the Government to account. When they explain in a memorandum the policy that underlies their decision, that should be the basis on which we are able to address the House, and be sure that the Government are answering the questions that we have put and are coming up with a policy that is coherent and makes sense.

The first of the three draft directives under consideration is that on the presumption of innocence. Its scope, which sets out certain rights that could be interpreted more widely than similar rights in the European Court of Human Rights by the Strasbourg Court, is a matter of great concern, and I am extremely grateful for the remarks of the Chair of the Justice Committee on that issue. I am also glad that the Lord Chancellor has made it clear that at no stage will that measure be opted back into, and I will give one or two reasons by way of amplification.

To take up the point made by the Chair of the Justice Committee, there would otherwise be different European Union and European Court of Human Rights procedural standards, which could cause legal uncertainty and confusion. That has now become an extremely topical question when applied to the judiciary. Members may have noted that, in their varying ways and without going into the detail, Lord Judge, Lord Sumption, Lord Mance and Lord Neuberger, the President of the Supreme Court, have all made incredibly important statements, in the most measured terms, about their concerns over the manner in which the Strasbourg Court approaches some of its judgments. This is not the time to go into all the detail, but I strongly recommend that their respective speeches are read by those who read these proceedings.

It is very important that people understand our concerns as members of the Conservative party—and indeed of other parties. Furthermore, some of the arguments that are presented as if we are just Eurosceptics who are out to be critical for the sake of it, are now increasingly supported—however discreetly—by some of the most eminent members of the judiciary in our analysis, which has taken a great deal of time and expertise to develop. It is important to remember that our arguments about the directive on the presumption of innocence are illustrative of the broader question of the methods of interpretation, for example, and the procedural standards in the two different Courts I have mentioned.

On procedural standards, in a nutshell, those based on European Union law override national law. As I said in an intervention, that means that the ability to draw adverse inferences from the silence of the accused, although compliant with the European Court of Human Rights, would become unlawful under European law if the United Kingdom participated in the proposal. That is dangerous, given that we have spent the best part of 600 years in the development of a common law on such matters, some of which—for those who watched it—were well illustrated in last night’s programme on the Plantagenets and Henry II. It was an interesting programme, much of which dealt with how we developed our common law.

The fact is that our courts have a system of appeal. The trouble with EU law in matters as important as the presumption of innocence, which is absolutely at the heart of Magna Carta and absolutely at the heart of our common law system, is that they would be eviscerated if the European Court of Justice were to apply the principles set out in this directive. The consequences would be for section 3 of the European Communities Act 1972, passed all those years ago, to be binding on our judicial system, with no right of appeal once the European Court of Justice has adjudicated. That is different from the European Court of Human Rights, which we can override much more easily. I contend that we can put in a provision in an Act of Parliament to rectify that, by saying that, notwithstanding the European Communities Act, we will not accept this particular piece of legislation and thereby preserve our sovereignty. It is this kind of matter that is under discussion on the basis of the European Scrutiny Committee report, to which I referred earlier and on which we await the Government’s response. It is that important: there is no appeal from the European Court of Justice.

I spent two days in Rome last week discussing the question of fundamental rights with some extremely eminent lawyers from throughout the European Union. The Prime Minister of Italy was there, as were a range of other people: Mr Prodi, who used to be the President of the European Commission, people from the Council of Europe and from the European Union Agency for Fundamental Rights and so on. I have to say that there was a great deal of disquiet at the manner in which the European Court of Justice operates in all cases. There are questions about the qualifications of the judges, the methods of interpretation and the issue of process. I will not go into those in detail, other than to put it on the record that the reason why the Government are right, why the European Scrutiny Committee is right and why it is right for this House to agree not to opt into these arrangements, is not just related to the question of the presumption of innocence in its own right, as important as that is. There is a much broader lesson to be learned on the manner in which the European Court functions and the whole question of the supremacy of Parliament. That lies at the heart of the Committee’s report and its recommendations that, if necessary, we should regain the right to veto legislation that we do not think is in the national interest, and to repeal unilaterally at Westminster legislation that is manifestly not in our national interest.

I will now move on to the directive on procedural safeguards for children. Members may want to note that the Committee’s report said that it would be disadvantageous for the Government to opt into this proposal, because the protection of a certain category of vulnerable defendant is best left to national policy and discretion. The differing approaches to the definition of the word “child” for the purposes of criminal procedural protection in England, Wales, Scotland and Northern Ireland demonstrate this point. There is a caveat to what the Lord Chancellor said in response to an intervention by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). We want to be sure that this would never be opted into. I heard what he said: he clearly would not want it to be. I suspect there may be a bit of coalition politics behind this, so I will not go down that route now. I hope that that will be resolved and that we will effectively find that this directive does not apply at any time. The Government’s estimates of the costs of an opt-in decision to the police and criminal justice system, and the costs of changes in domestic legislation in the context of the Police and Criminal Evidence Act 1984, are also relevant considerations.

Finally, Members should be aware that the Committee has expressed the view that the Government should not opt into the proposal in the directive on legal aid for two reasons. First, article 5(2) is premised on the directive on access to a lawyer, into which the United Kingdom has not yet opted. Secondly, the proposal would impose both a financial and a regulatory burden on the United Kingdom.

My function in my capacity as Chairman of the Committee is to set out the parameters and, in some detail, the Committee’s reasons for reaching its conclusions. I cannot say how delighted we are that the Government agree with us. I think that everyone’s concerns have been dealt with, and I therefore have no more to say on the subject—at any rate, for the time being.