James Clappison
Main Page: James Clappison (Conservative - Hertsmere)Department Debates - View all James Clappison's debates with the Home Office
(10 years, 9 months ago)
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Mr James Clappison (Hertsmere) (Con)
I welcome the points that my right hon. Friend has just made. Will she bear it in mind that this is part of the EU’s overall ambition to establish an area of freedom, security and justice in which the European institutions, not this House, take the decisions, and European Courts, not our courts, take the legal decisions?
Mrs May
My hon. Friend is right to be concerned about the indications of some of the intentions about the future of Europe. We have made it clear—it is in our coalition agreement—that we will not support anything that, for example, establishes a European public prosecutor, which we do not believe is the right way to go. Furthermore, on the new Europol regulation, which I will mention later and on which we will have a further debate tonight led by the security Minister, the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), we do not wish, as I said, to do anything that leads to anything akin to a European police force.
We have concluded, however, that some of the measures in the opt-out decision help us to tackle crime and keep our country safe, and we should therefore seek to opt back into them. We believe that there are 35 such measures, as I indicated last week. I will deal first with the most controversial of the measures we plan to opt back into: the European arrest warrant. It is a controversial measure because, although we clearly need strong extradition arrangements in place to see justice done, when extradition arrangements are wrong, they can have a detrimental effect on our civil liberties. Hon Members, especially my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), will remember that last year I stopped the extradition of Gary McKinnon and then secured changes to the operation of our extradition arrangements with the United States.
I believe that the operation of the European arrest warrant is in similar need of change, which is why I propose new safeguards to increase the protection offered to those wanted for extradition through the European arrest warrant. First, as I indicated earlier, the Government have tabled amendments to the Anti-social Behaviour, Crime and Policing Bill, which is currently in Committee in this House, to ensure that an arrest warrant can be refused for minor crimes. Secondly, we will work with other member states to enforce their fines and ensure that, where possible, an investigation order is used instead of an arrest warrant, meaning that police forces and prosecutors would share evidence and information without requiring the extradition of a suspect at the investigative stage.
Thirdly, I will amend extradition legislation to ensure that people in the UK can only be extradited under the European arrest warrant when the requesting member state has already made a decision to charge and a decision to try, unless that person’s presence is required in that jurisdiction for those decisions to be made. Fourthly, I will amend our law to make it clear that in cases where part of the alleged conduct took place in the UK and where that conduct is not criminal here, the judge must refuse extradition for that conduct. Fifthly, I want to ensure that people who consent to extradition do not lose their right not to be prosecuted for other offences.
Sixthly, we propose that the prisoner transfer framework decision should be used to its fullest extent so that British subjects extradited and convicted can be returned to serve their sentence here. Seventhly, where a British subject has been convicted and sentenced abroad—for example, in their absence—and is the subject of an arrest warrant, we will ask, with their permission, for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. Eighthly, I plan either to allow the temporary transfer of a consenting person so that they can be interviewed by the issuing state’s authorities or to allow them to do this through means such as video-conferencing in the UK. Where the suspect is innocent, this should lead to the extradition request being withdrawn.
Those are all changes that can be made in our own law, and which could have been made at any time by the Labour party.
Yvette Cooper
In fact, having sovereign arrangements with no ability to extradite without having to go through a very long, legal process that may last 10 years does not help us to get rid of the suspected criminals whom we want to send back to Europe, and it does not help us to bring back to Britain the suspected criminals who have fled abroad. For very many years, people fled to the costa del crime, and Britain was unable to bring them back.
I shall make some progress, as I want to refer to the points that hon. Members have made about the measures that the Home Secretary wants to opt out of. Again, it is hard to take a full view without proper scrutiny and without Select Committees being able to look at this. The Prime Minister described this last week as
“a massive transfer of powers”.
The Home Secretary has described it as an historic moment, and said that we should celebrate the sovereignty involved in this particular opt-out process and in the Command Paper that she published last week. But we should look at the details in the explanatory memorandum of some of the things that we would opt out of. Britain would no longer be expected to have a good practice guide on mutual legal assistance in criminal matters, but we will keep one anyway as part of other plans for the European investigation order. Nor will we sign up to the European judicial network, which offers a point of contact in each country for judicial queries, but that, too, will still happen anyway, again because of the European investigation order. We will not sign up to having someone to act as a contact point for cross-border allegations of corruption, but UK bodies plan to do so anyway. We will not sign up to receive a directory of specialist counter-terrorism officers, but we are already doing it so we will carry on doing so. I suspect somebody will send it to us in the post anyway. We will not sign up to a whole series of accession measures which apply to other countries and did not cover us anyway. Time and again we are opting out of dozens of measures that either do not operate any more or cover areas where we plan to carry on regardless, whether we are in or out.
Mr Clappison
I am grateful to the right hon. Lady for giving way again. Of the 130 measures, are there any at all that she does not want to opt back into?
Yvette Cooper
There is a whole series of measures in respect of which it will make no difference whether we are in them or out of them. We have no objection to opting out of a series of redundant measures. However, there must be proper assurances and guarantees about the measures that we need to opt back into. Rather than a massive transfer of powers, this is, as the Prime Minister said, more like a massive transfer of hot air. There is not the substance in this to justify the Home Secretary’s parade of historic significance and celebration of sovereignty.
Although the Home Secretary has not set out any major benefits from opting out of these measures, we know that there are risks to the serious measures where even she now admits we need to opt back in. She has no guarantees in place and no assurances from the Commission or the Council that at least on the most important measures—the arrest warrant, data sharing, joint investigations—we will be able to opt back in. She will know that the House of Lords pointed out that when Denmark exercised its opt-out,
“the Commission had frequently refused permission for the Danes to conclude agreements in certain areas”.
Nor has she any guarantee on the timetable or, for example, whether we will simultaneously be able to opt back into the European arrest warrant, whether there will be a gap in its operation, or whether complex or risky transitional arrangements will need to be negotiated.
Given how important the Home Secretary herself has said the European arrest warrant and various other measures are, surely it is important to ensure that there is no gap in operation. She can provide no assurance for the police that there will no interruption, therefore, of their use of the arrest warrant. The House of Lords report also said that
“the Government have not provided us with even a summary of the reactions of the other Member States to the Government’s intention to exercise the opt-out”
which
“may be critical in assessing the potential success or otherwise”
of the UK’s negotiation to rejoin particular measures. Surely on these most important measures she should seek assurances from the Commission and the Council before she asks this House to opt out.
Mr Cash
If that were the case for scrutiny, I would simply refer the hon. Gentleman to the Standing Orders of this House that make it crystal clear that the scrutiny process must be as good as it possibly can be. Indeed, there is an inquiry into the scrutiny process to improve it even further in line with concerns that have been expressed by the House on a number of occasions. The process is also being reviewed throughout Europe through the Conference of Community and European Affairs Committees of Parliaments of the European Union. Everybody is anxious to ensure that European scrutiny takes place properly, precisely because of the democratic basis on which such decisions must be taken.
Mr Clappison
My hon. Friend the Member for Rochester and Strood (Mark Reckless) does not look completely overwhelmed at being told that he is heavily wrong by the hon. Member for Cambridge (Dr Huppert), but never mind that. Before my hon. Friend the Member for Stone (Mr Cash) moves away from the issue of national interest, is it not part of our national interest for our law to be determined in this House of Commons and subject to the jurisdiction of our judges rather than European judges?
Mr Cash
Indeed, and I personally take that view, which lies at the heart of the matter that I raised with the right hon. Member for Leicester East. The expression “judicial authority” leaves a great deal to be desired and has given rise to a lot of problems not only in this country but elsewhere throughout Europe. It is not just a question of whether we adjust our domestic law in certain respects, but of whether the European arrest warrant can properly fulfil the judicial role allocated to it. As I said earlier, other matters such as dual criminality must also be considered. Many questions looked at in 2001 were, as the shadow Home Secretary knows, considered by the European Scrutiny Committee, although she was not over-anxious to go into the detail. No doubt she will when she has an opportunity to come back into the Chamber, and she is very welcome to do that later on.
As the right hon. Member for Leicester East said, the original motion was withdrawn but it did not mention the role in this process of the European Scrutiny, Home Affairs and Justice Committees, despite repeated promises that those Committees would be consulted. There were also undertakings that we would be given explanatory memorandums on measures covered by the opt-out by the middle of February. In my view, and that of my Committee as a whole, the Government’s failure to provide explanatory memorandums in line with their timetable has been the major factor impeding Select Committee consideration of the block opt-out.
The history of those various exchanges and undertakings is set out in our report, “The 2014 block opt-out—engaging with Parliament”—that has been seriously lacking—which is tagged in this debate along with the Government’s response.
In my view, the way the European Scrutiny Committee and the other Committees have jointly sought information from the Government is an excellent example of the various elements of the scrutiny process working together in a consistent and co-ordinated manner. In that context, the fact that the Government’s revised motion does not provide for a scrutiny stage to be concluded by the end of October is to be welcomed. The amendment to the revised motion, which we have tabled jointly, centres on the scrutiny process and aims to ensure that the Select Committees can undertake meaningful scrutiny of the Government’s proposals. I hope that the Government will listen to that.
As Chairs of these Committees, we are concerned that the inclusion of the words
“on the set of measures in Command Paper 8671”
is likely, implicitly or explicitly, to endorse the Government’s list of 35. The amendment would simply leave out these words, so as to avoid a prejudgment of the Committee’s conclusions. That was the substance of the point made by the right hon. Member for Leicester East.
Mr James Clappison (Hertsmere) (Con)
I begin by welcoming the revised motion tabled by the Government and their acceptance of the amendment from the Chair of the Justice Committee, which I think reflects well on the role that each of the Select Committee Chairs has played and on the Government’s preparedness to listen to the views of Select Committees. As a member of the European Scrutiny Committee and the Home Affairs Committee, I look forward to taking part in the scrutiny that we now understand will take place.
I cannot separate the question of the European arrest warrant, or the other measures that the Government have announced they intend to opt into, from the European area of freedom, security and justice. My view on these matters is determined by my view of the European Union’s so-called area. I do not believe that it is a question of simply looking at individual measures and deciding whether opting in or out or co-operating here or there is in the national interest; my view is that the national interest is a question of this House and this Parliament determining the laws to which we are to be made subject.
I have heard the case that has been made for the European arrest warrant. It might be that, on balance, it is helpful in co-operation, but I do not know about that. If one accepted that view, one would have to ignore the many cases that have been brought to attention where it has been used disproportionately, for example for the theft of a piglet, a pudding, a wheelbarrow, as we heard earlier, or some wardrobe doors.
There are also cases in which the extradition of UK citizens from this country has been sought by European Union member states in which the standards of justice to which they have been exposed have been well below those that we would expect to see in this country. That includes people being put on trial for very serious offences, having already been acquitted of those offences, only to be told much later that the whole charge against them was to be dropped. There is a long list of such cases in which the European arrest warrant has gone wrong, and they have been well documented, and I think that was reflected in the critical testimony that Lord Justice Thomas, the senior extradition judge, gave the review on extradition led by Mr Justice Scott Baker.
It has been interesting to hear in the debate how the civil liberties guns have in some cases fallen silent as the guns for pro-European integration have been fired on all cylinders. Even if one accepted that, on balance, the European arrest warrant was a good thing and that it was necessary in fighting serious crime and bringing serious criminals and terrorists to justice—we have certainly heard a long list of those cases produced—heaven help us if it occurs to those serious criminals and terrorists to move from a European Union country to a non-member state because, on the basis of what we have heard today, it would seem impossible to bring about their extradition unless the European arrest warrant was involved, which it would not be in those cases.
Even if we accept that, the question is whether we should be part of the European area of freedom, security and justice at all. There will be those who say that that would be a good thing, that it would help to fight crime and that we should sign up to it lock, stock and barrel. I think that if the Opposition were honest, that would be their stated position—their underlying position, at any rate. I notice that no dissent is coming from the Opposition Benches to that last comment.
However, if we sign up lock, stock and barrel, or to individual measures in the area of freedom, security and justice—including, obviously, the 35 suggested measures—we will, in each case, be handing legislative and judicial supremacy to the European Union institutions and the European Court of Justice. That means that voters in this country will no longer be determining through their choice of Government the laws to which they are subject; instead, the law will be made through EU processes, with the European Commission having the right to initiate proposals, and qualified majority voting and co-decision operating at a European level. In such cases, British courts can be overridden by a European Court.
I note in passing a point well made in an intervention from my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg): henceforth we would be subject to the jurisdiction of the European Court of Justice and the infringement procedure of the European Commission in respect of whatever measures we decided to opt into. I find that curious, particularly in light of the cases that have arisen in the past week as a result of this country’s being subject to the overriding jurisdiction of a European Court—another European Court admittedly, but a European Court none the less. Those cases have been an example of what happens when we sign up to supranational jurisdictions. What frustration have our voters felt over the years over the case of Mr Abu Qatada and the repeated occasions on which—
Martin Horwood
If we establish that we are participating in a body of European law or any international law, we obviously need some kind of jurisdiction process to judge whether those laws—not all laws—are being fairly applied. Otherwise, every member state would make up the rules as they went along. Presumably, the hon. Gentleman would be the first in line to accuse other countries of not sticking to the rules.
Mr Clappison
The hon. Gentleman should be aware of the frustration felt in the House, which led the Government to say that they were leaving open the option of leaving the European Court of Human Rights altogether. Such was their frustration, which, obviously, he does not feel. The frustration is that British courts and the Supreme Court of this country have been overridden by a supranational jurisdiction. Through the measures under discussion, we would be signing up to more supranational jurisdiction. Heaven knows how much more frustration the voters of this country will feel in the future when that jurisdiction is exercised as it has just been.
Martin Horwood
I am afraid the hon. Gentleman is hopelessly mixing up his European Courts. The European Court of Human Rights has nothing to do with the fair application of European Union law; we abide by it through our own choice by virtue of our membership of the European convention on human rights.
Mr Clappison
The hon. Gentleman is being less than fair, as I made it clear that I was referring to another European Court. My point is about supranational jurisdiction conferred on courts outside this country. That applies in this case because we are signing up to the European Court of Justice’s jurisdiction, just as we are signed up to the jurisdiction of the European Court of Human Rights. That means that British courts and the will of the British people as expressed through this Parliament can be overridden.
One can add to the case of Abu Qatada the frustration that voters have felt over whole-life sentences no longer being allowed as a result of the European Court of Human Rights. There are multifarious other cases as well.
Mark Reckless
I felt I should intervene on my hon. Friend following the intervention from my hon. Friend the Member for Cheltenham (Martin Horwood). I do not think the European Court of Human Rights can dictate to our courts. In the Abu Hamza case, it said that the nine injunctions were not binding on our courts. They are certainly not binding on this Parliament. If the Government choose to act on them because of the ministerial code, that is for the Government, but the injunctions are not binding on our courts or Parliament.
Mr Clappison
My hon. Friend is absolutely right. He will reflect, as I do, on the position taken by the Government in light of that fact. However, the European Court of Justice will have authority over this country in the case of the measures under discussion. Its decisions will be final and beyond appeal, and we will have to abide by them if they go against us. We are voluntarily subjecting ourselves to that jurisdiction.
Those who want us to be part of the European area of freedom, security and justice should be under no illusions as to the extent of the European Union’s ambition to take away sovereignty from this Parliament in that field. That is, after all, one of the specific objectives spelled out in the EU treaty:
“The Union shall offer its citizens an area of freedom, security and justice without internal frontiers”.
There are those who say that instead of signing up to the EU area of freedom, security and justice, we can pick and choose which individual measures we should adhere to and suggest that they stand on their own merits rather than being part of the EU system as a whole. In a way, that is choosing to dine à la carte from the EU menu. However, the problem with dining à la carte is that if someone keeps on doing it, they end up trying everything on the menu.
Mr Clappison
Yes, and it has other consequences for the waistline, although I will not go into that now.
History teaches us that every concession made to the EU—every measure opted into, every pillar knocked down and every red line crossed—leads to a demand for more concessions; they are put into the pocket and the EU asks for more and makes more demands. That has been the case going back to the treaty of Maastricht, the constitutional treaty of the European Union and the treaty of Lisbon.
My hon. Friend the Member for Rochester and Strood (Mark Reckless) asked why the previous Government negotiated the block opt-out from the treaty of Lisbon at all. That was a good question; the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) was so strongly in support of all the measures, particularly the European arrest warrant, that one wonders why the possibility of opting out was ever raised.
The real answer to my hon. Friend’s question is not the one that the right hon. Lady gave. I think it is that the then Labour Government said that the fact that the UK was not part of the area of freedom, security and justice was the key difference between the defunct constitutional treaty and the treaty of Lisbon. They said that a referendum was not required so that Labour could withdraw its promise to hold a referendum, which it did virtually overnight. A referendum that had been promised to the British people was then withdrawn. [Interruption.] The hon. Member for Rhondda (Chris Bryant) looks curious, but that is a fair answer to the question about why the previous Labour Government negotiated the block opt-out at all. They certainly did not have the eventual decision in mind.
I well remember the then Foreign Secretary, David Miliband, appearing before the European Scrutiny Committee. When asked what he thought would happen when it came to the decision on the block opt-out, he said, “Who knows?” That was the background. The decision was taken to help get the Labour party out of its commitment to a referendum, and that shows how easily a promise for a referendum can be withdrawn.
I am pleased that the coalition Government have made their commitment to a referendum and that a private Member’s Bill is passing through the House that I hope will put that commitment into legislation. That is where the decision finally needs to be taken—by the British people. They need a decision on the extent to which they wish to be part of the European project.
In this context, let nobody be under any illusions. This is not about picking and choosing and dining à la carte; it is not a simple question of co-operation here and there and what would be in the interests of fighting crime. It is about whether we are prepared to concede decision making on our criminal law, on the jurisdiction of our courts and on the work that is being done by our Home Office. It is about whether we are prepared progressively to abdicate from that and surrender sovereignty to the European Union so that jurisdiction and sovereignty are exercised by European Union institutions. I believe that the answer to that must come in a referendum.
Mr Clappison
Does my hon. Friend agree that, on the face of it, although the Government’s proposed amendment to the European arrest warrant seems simple, it depends on the view taken by the European Court of Justice—if this area is now to be subject to the jurisdiction of the European Court of Justice—and that we have no way of knowing what that view will be?
Jacob Rees-Mogg
Where I part company with the Government is in believing that it would not be better to make these adjustments in the current structure, rather than under the new structure, and to negotiate to maintain the current structure with our European partners, because as it currently stands, if we change the law, that is the law of the land. Once we have opted in, it is not: the law of the land is subject to the European Court of Justice.
Then there is the issue of double criminality. The European Commission’s website, in explaining how the arrest warrant works, says quite clearly:
“If they are punishable in the issuing Member State by a custodial sentence of at least three years, the following offences”—
which are then listed—
“may give rise to surrender without verification of the double criminality of the act”.
Therefore, although we may pass a law saying that double criminality is a requirement before we extradite somebody, the rule of Brussels is not so. Now, in the situation we are currently in, our law is superior, but then their law will be superior.
Jacob Rees-Mogg
This is always a complex area. I have never thought that any Briton could ever suffer from xenophobia, because no Briton has ever been frightened of any foreigner.
I should like to continue a little on the detail and look at item No. 48, which is the Council framework decision on the European Union orders freezing property or evidence. Therefore, we are potentially going to give to the European Court and the European Commission rights to freeze the property of British subjects. Item No. 59 deals with the mutual recognition of financial penalties. “Mutual recognition” is the most dangerous part of the agreement on justice and home affairs.
Mr Clappison
My hon. Friend’s analysis of this list of measures is absolutely scintillating, but before he moves on from that one, is he aware that, as far as the freezing of assets or evidence is concerned, the problem is that in future the Commission will have the right of initiative to propose laws? These will then be determined through the co-decision and qualified majority voting procedure in the European Parliament and the Council of Ministers. That provision does not currently exist, because the agreement stands on its own and is subject to our law. In future, it will be subject to amendment under European law and we cannot know where that will end.
Jacob Rees-Mogg
I do not think that is quite it, because I think the process is subject to a Title V opt-out. Therefore, if any of those issues are recast, we then have to decide whether to opt into the recast decision, but the decision we have opted into will be a permanent part of the acquis communautaire and we will therefore be bound by it, even if it is recast.
There are a couple of other measures that are being maintained that it is important to mention, because the surrender of powers is so significant. They include the mutual recognition of confiscation orders, which is similar to the property issue. Then there are measures dealing with the enhancing of procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. Therefore, we are going to give mutual recognition to trials that are held without the person accused being present, which I have always thought a potentially highly unjust way of proceeding.
We should be deeply concerned about the proposals to opt back in, because of the lack of sovereignty we will then have over those essential measures. In these important areas—mutual recognition, the arrest warrant, trials without the person present and many others—we are handing over to the European Court the ability to decide whether our procedures are good enough or whether they have to be changed to meet European requirements.
Chris Bryant
Far be it for me to suggest that the hon. Gentleman is a mendicant in these matters, but he certainly sought this many times. If that is not the definition of begging, I am not sure what is.
Then, of course, we had the bizarre event last Thursday afternoon, which was the classic kick-bollock scramble school of parliamentary drafting that this coalition has made standard practice when the Home Secretary first tabled a motion, then the Chairs of the Select Committees kicked up and tabled an amendment, but then at the very last minute the Home Secretary withdrew her motion and tabled another one, whereupon the Select Committee Chairs tabled another amendment. Now the Home Secretary has backed down on the amendment, which is her third position in a week—no Thatcher she, I would suggest, as we are certainly not going to get a “This Lady is not for turning” speech at the Tory party conference.
The end result of all that is a list cobbled together in a deal within the Government; the House given three days and no more to decide; and a motion tabled just one sitting day before the debate. Yet the Justice Secretary himself—he has been opting in and opting out of this debate; more opting out than opting in, I note—said on 19 March this year to the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith):
“I can give my right hon. Friend, and indeed the House, a clear assurance that this Government will go further than any Government in ensuring that the House is involved in the decisions that are taken, and that as we reach agreement within the coalition on the way forward, we will need fully to engage Parliament, his Committee and, indeed, all the Committees with a vested interest in the matter”.—[Official Report, 19 March 2013; Vol. 560, c. 782.]
[Interruption.] I hear some rumblings over there, but the honest truth is that none of the Select Committees has been impressed by the way in which the Government have conducted themselves. Indeed, to be precise, the hon. Member for Stone (Mr Cash) said that this was a classic case of “scrutiny gone wrong”.
Let us be clear: these are complex matters that need to be addressed. The Command Paper is one of the most impenetrable set of explanatory memorandums that I have ever encountered—[Interruption.] I have read it and understood it, but I am not sure that the Justice Secretary has either read it or understood it. Some of what he says in his own explanatory memorandum is self-contradictory.
Mr Clappison
The hon. Gentleman might like to compare this with the one relating to the treaty of Lisbon, which was produced by his Government and was originally supplied to the House in French.
Chris Bryant
I have read it only in Spanish. It is obviously a little bit more difficult when dealing not just with one coalition partner but with 26 of them.