European Public Prosecutor’s Office

James Brokenshire Excerpts

Tuesday 22nd October 2013 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

I beg to move,

That this House considers that the Draft Regulation on the establishment of a European Public Prosecutor’s Office (EPPO) (European Union Document No. 12558/13 and Addenda 1 and 2) does not comply with the principle of subsidiarity, for the reasons set out in the annex to Chapter One of the Fifteenth Report of the European Scrutiny Committee (HC 83-xv); and, in accordance with Article 6 of Protocol (No. 2) annexed to the EU Treaties on the application of the principle of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.

It is a pleasure, Madam Deputy Speaker, to see you in your place for this debate and to serve under your chairmanship this evening.

In July the European Commission published a proposal for the establishment of a European public prosecutor’s office—an EPPO. It is the Commission’s answer to a problem known as

“fraud against the Union’s financial interests”.

The EPPO proposal was published alongside a parallel legislative measure to reform the existing EU agency, Eurojust. These two proposals, the EPPO and Eurojust, will together be the subject of a separate debate in a week’s time as part of the so-called Lidington arrangements. I look forward to it, following my letters to the Chairs of the relevant Committees yesterday with the Government’s recommendation that the UK should not opt in to the new Eurojust proposal at the outset of negotiations, but should actively consider its position following a thorough review of the final agreed text.

The purpose of the debate is specifically for the House to decide whether the Commission’s EPPO proposal breaches the principle of subsidiarity, and that is what we should focus on tonight. I recognise that I am in an unusual position tonight in moving a motion on a course of action to be taken by the House, not the Government. I am aware, too, that the issue of who should move a motion in a subsidiarity debate such as this is a matter that the Procedure Committee has examined and on which the Government have responded. Although there may be differences of view over the procedure, I hope we can agree on the substance of the debate.

It is the shared view of both the European Scrutiny Committee and the Government that the EPPO proposal does indeed breach the principle of subsidiarity. If the whole House agrees, it can, under the EU treaties, send a democratic and political signal to the presidents of the European Commission, Council and Parliament in the form of a reasoned opinion to that effect. Moreover, in this case, if one quarter of the votes allocated to national Parliaments are cast, the so-called yellow card would be triggered meaning that the Commission would be obliged to review its proposal.

To update the House on how matters stand, both chambers of the Dutch Parliament, the Hungarian National Assembly and the Czech Senate have already taken this step, and others are actively considering it. This is a real opportunity for all national Parliaments to exercise, as democratic representatives, their views on what the Commission has proposed.

Before I say more about the reasoned opinion process, let me summarise the Government’s view on the EPPO proposal. The House will be aware of our long-standing position in the coalition agreement not to participate in the establishment of any EPPO, and the details of the proposal serve only to reinforce that position. While of course fraud must be tackled at all levels, including when it involves funds that form part of the EU budget, we do not agree that the establishment of a European public prosecutor’s office is the right approach.

The Commission’s proposal would establish a new supranational EU body with responsibility for criminal offences affecting the financial interests of the Union, as well as so-called ancillary offences within participating member states. The EPPO would exercise the function of a prosecutor within the courts of the participating member states for these offences and instruct their national authorities over the conduct of investigations.

This proposal is unnecessary, unsubstantiated and unwelcome. In the Government’s view, the best way to tackle EU fraud is through prevention. The UK has a zero-tolerance approach to fraud, with robust management controls and payment systems in place that seek to prevent incidences of EU fraud. Additionally we should continue efforts already happening to strengthen the current system.

For example, reforms to the European Anti-Fraud Office—OLAF—are currently being introduced to improve information exchange between OLAF and national authorities, and to improve OLAF’s own internal quality control. Indeed, a new regulation governing the work of OLAF entered into force only on 1 October 2013. These changes need time to be implemented fully before any further action is contemplated. Against that background, one of the many criticisms we have of the EPPO proposal is that the subsidiarity principle has not been met.

Without getting into too much technicality and legalese, the principle of subsidiarity means that decisions should be taken as closely as possible to the citizens whom they affect, and that the European Union should act only when outcomes can be better achieved at European Union level. It is important to note that subsidiarity is different from the principle of proportionality, under which any action taken by the European Union should not exceed what is necessary to achieve the stated objectives.

Under the protocol on the application of the principles of subsidiarity and proportionality in the treaties, the Commission must demonstrate that the objectives of the proposal cannot be sufficiently achieved at member state level—the first limb of the test—and then, that the objectives of the proposal can be better achieved at EU-level by reason of their scale and effects, which is the second limb and so-called EU added-value test. There is a requirement for the Commission to include a detailed statement in all legislative proposals on compliance with the principles of subsidiarity and proportionality, and some assessment of its financial impact. This detailed statement should be

“substantiated by qualitative and, wherever possible, quantitative indicators”.

In the Government’s view, the Commission has not presented a convincing case, and we do not believe that the principle of subsidiarity has been met. The Commission has not allowed time for current reforms to take effect, nor has it adequately considered options to strengthen the current system. For example, it has not considered enhanced incentives or other options for reform at regional or national level in any detail or in a rigorous manner, and it has not demonstrated what value an EPPO would add. We should recall that the relevant legal base in the treaties—article 86 of the treaty on the functioning of the European Union—says that an EPPO “may” be established. The treaties do not say it “shall” be created. The Commission has not, in our view, provided robust evidence to justify the creation of a supranational body with extensive and harmonised powers.

As I have said, under the treaties national Parliaments have the opportunity to put forward a reasoned opinion when they do not consider that a proposal complies with the principle of subsidiarity.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

As the Minister has just made a point about harmonised powers, may I remind him that one of the consequences of giving the EPPO the power to direct investigations would be to create a power for prosecutors that does not currently exist in England and Wales, although it does in Scotland? That perhaps illustrates the level of change that would be required to satisfy the idea of having a public prosecutor at European level.

[James Brokenshire]

I am grateful to my right hon. Friend, the Chair of the Select Committee on Justice, for highlighting the seriousness and significance of the European Commission’s proposal and why, in our view, it is not appropriate for the United Kingdom to opt in to the measure. As I have indicated, we made that abundantly clear in the coalition agreement in advance of the proposals being published. I am sure that we will examine in detail the impact of the Commission’s published measure in our debate next week on the in-principle decision as to whether the UK should opt in. That is the right avenue for exploring the detailed issues, whereas today is about subsidiarity. However, I take his points seriously.

Although there have been a number of reasoned opinions since the opportunity to provide them came into effect, there has only been one occasion on which the yellow card threshold has been reached. That was on a Commission proposal about the posting of workers and the right to take collective action, also known as Monti II. In that case, the Commission withdrew the proposal fully, even though it maintained that the principle of subsidiarity had been met. It conceded on the grounds that it was clear that there was no political will among member states and national Parliaments to take the proposal forward.

The Monti II case highlights the fact that the continuing use of the reasoned opinion procedure and resulting yellow cards represents a powerful political signal and an important way for national Parliaments to intervene directly in the EU’s functioning. Even when the yellow card threshold has not been met, the views of national Parliaments have been influential on a wide range of issues, as member states have used reasoned opinions to support their negotiating positions. They have often secured amendments on the salient issues on the back of them.

Achieving the threshold requires a great deal of co-ordination between national Parliaments. I am sure the European Scrutiny Committee and other interested parties in Parliament, in both this House and the other place, are making best use of their contacts with other national Parliaments in that regard. I look forward to hearing the debate and urge the House to support this important motion.

--- Later in debate ---

[James Brokenshire]

With the leave of the House, I thank right hon. and hon. Members for their contributions. This has been a useful debate, and from what we have heard it is clear that the House supports the motion before us, and identifies that there is an issue of subsidiarity with the Commission’s proposal for a European public prosecutor’s office. As I said at the outset, this is a matter for Parliament and not the Government. Therefore, in the light of the mood of the House this evening, I hope that the European Scrutiny Committee will take this issue and work with other interested parties in Parliament, the House and the other place, and make best use of their contacts with other national Parliaments in that regard, given the interest and focus that I know are being directed to this proposal by Parliaments around the EU.

The coalition agreement makes it clear that the UK Government will not participate in any European public prosecutor’s office. As we have heard from hon. Members, that is because a centralised European prosecutor with harmonised powers to initiate investigations and order investigative measures is incompatible with the division of responsibilities in the UK between law enforcement and prosecutors, and the role of the independent judiciary. In many ways, that reflects a number of the comments made by my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith)—the Chair of the Justice Committee—the hon. Member for Luton North (Kelvin Hopkins), and my hon. Friend the Member for Daventry (Chris Heaton-Harris). May I say that the last of those is filling in for my hon. Friend the Member for Stone (Mr Cash) admirably this evening in ensuring that the will and views of the European Scrutiny Committee are properly represented in the debate? I look forward to him standing in on future occasions.

I want to underline and respond to some of the points made by the hon. Member for Kingston upon Hull North (Diana Johnson). I welcome the fact that she agrees with the Government’s analysis of subsidiarity as it applies to the European public prosecutor’s office measure. However, it will not surprise her that I take issue strongly with her suggestion that the Government do not take transnational and serious organised crime, and working with law enforcement agencies across the EU, very seriously in ensuring that public are properly protected against organised criminality that crosses borders. I will not detain the House because this is a matter for another day, but it is interesting that the Labour Government negotiated the right to exercise the 2014 block opt-out—she described the 2014 decision as an untested approach. From her comments, I can only assume that the previous Government had no intention of exercising that right and therefore of seeking to provide those protections—it was a sham.

The hon. Lady highlighted protections in respect of the European prosecutor’s office—unanimity and the right to opt in—but it is important that the public have a say and a right to form a view in respect of such an important issue. That is why I welcome the fact that the Government have legislated to make any decision by a future Government to commit the UK to participating in the creation of the European public prosecutor’s office a matter that would require an Act of Parliament and—yes—a referendum under the European Union Act 2011.

This has been a helpful debate and I welcome the views that have been expressed. We will monitor with close interest whether the threshold is triggered to issue the formal yellow card to the Commission. We will return to matters more broadly in relation to the European public prosecutor’s office and the relationship with Eurojust when we debate the formal opt-in decision motion, when we can examine those matters in further detail.

Question put and agreed to.

Resolved,

That this House considers that the Draft Regulation on the establishment of a European Public Prosecutor’s Office (EPPO) (European Union Document No. 12558/13 and Addenda 1 and 2) does not comply with the principle of subsidiarity, for the reasons set out in the annex to Chapter One of the Fifteenth Report of the European Scrutiny Committee (HC 83-xv); and, in accordance with Article 6 of Protocol (No. 2) annexed to the EU Treaties on the application of the principle of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.