Access to a Lawyer

Jim Shannon Excerpts

Wednesday 7th September 2011 Commons Chamber

[Mr Djanogly]

The hon. Gentleman makes a good point. That is exactly the case, and if it is to be under threat we should be concerned.

The directive also requires absolute confidentiality of meetings and communications between a lawyer and a suspected or accused person. While confidentiality of such discussions is of course a fundamental principle, there are some limited circumstances in which confidentiality should not be guaranteed. The most obvious example is where the authorities have reason to believe that the meeting or correspondence is being abused to further criminal activity. In such circumstances, which are exceptional but none the less extremely serious, the communications ought not to be privileged and the authorities might need to monitor them.

We also believe that member states should be allowed to derogate from other rights set out in the directive, in certain exceptional circumstances. For example, it might not be appropriate to allow a person in custody to contact a particular individual if the police might have reason to believe that he will ask that person to conceal or destroy evidence. The ECHR case law has been clear that restrictions can be imposed on access to a lawyer for an accused person if there are compelling reasons to do so.

We do not think that the drafting allows enough discretion for judges to decide case by case whether evidence should be admissible if it has been obtained in breach of any of the rights set out in the directive.

[Jim Shannon (Strangford) (DUP)]

In some of the documentation and information that Members received before the debate, there seemed to be a question about whether citizens of the United Kingdom would be disadvantaged with regard to the high level of legal representation that they have compared with that in the other 26 EU countries, which seem to have agreed on a method and the way forward. As a Member of the House, I would have to ensure that my constituents had that high level of legal representation, such that it was equal to that in the rest of the EU and that we were in no way disadvantaged.

[Mr Djanogly]

The straightforward answer is that if the other states were to go ahead with the directive and we did not opt in, British subjects travelling abroad would, I suppose, have the advantage of the minimum standards whereas other EU citizens would not have the benefits in this country. However, that is not the basis on which we are negotiating, because it would not be a good position from which to negotiate. That is the technical position.

The changes that the directive in its current drafting would require us to make to our domestic law would not only be unnecessary, but would be highly resource- intensive. Our initial analysis suggests that the directive as drafted by the Commission could cost upwards of approximately £32 million to £34 million per year. I stress that the UK is not alone in having these concerns about the directive. The early negotiations made it clear that our concerns are shared by a good many other member states. The incumbent Polish presidency is taking a sensible and pragmatic approach to negotiations, and we can expect that the final product may be very different from the text we are looking at now and that many of the concerns that we have highlighted will be dealt with.

Because of that, and because of the value we attach to ensuring fair trial rights across the EU, we intend to work very closely with other EU partners to develop a text that takes greater account of the practical realities of investigation and prosecution and allows for greater flexibility in meeting the requirements of ECHR jurisprudence. Given the extent of our concerns with the current text, we cannot at this stage be entirely confident that all of them will be taken into account, and it is for that reason that we are seeking not to opt in at the outset. However—I say this to my hon. Friend the Member for Stone (Mr Cash) in direct reply to his question—if our concerns are taken into account in the process of negotiation, we will be able to consider opting in at a later stage, as our protocol allows. Given the importance that we attach to this dossier, that is something to which we will give serious thought.