Justice and Home Affairs Opt-out

John Redwood Excerpts

Monday 7th April 2014 Commons Chamber

[Yvette Cooper]

The hon. Gentleman seemed to be opting out and opting in all over the place there. The problem with the opt-out that he wanted is that, by the time we have opted back in to the main measures, it will not really be there at all. Here is what the Prime Minister said about these measures. He described the European arrest warrant as “highly objectionable” and the Home Secretary’s package, which is before us today, as a massive “transfer of powers”.

The Home Secretary said that it was

“the first time in the history of our membership of the European Union that we have taken such a set of powers back from Brussels.”

She described it as

“something that should be celebrated by anybody who cares about national sovereignty, democracy and the role of this place in making the laws of our country.”—[Official Report, 15 July 2013; Vol. 566, c. 770.]

So what does she want us to celebrate today? The truth is that the Home Secretary now wants us to opt back into the important measures again—thank goodness. Finally she has listened to reason. I was delighted to hear her list many of the cases in which the European arrest warrant has been used—rightly used—and needed; in fact, they were many of the examples that Labour Members were putting to her 12 months ago when she was refusing to listen. Finally, she has listened to the police, who have said that many of the measures, if we opt out and stay out of them, would let criminals run free. She has listened to the victims who feared that they would be denied justice. Finally, she has listened on cases such as that of Jason McKay, who was extradited from Poland within two weeks for murdering his partner. Under the old extradition arrangements, it would have taken several years to get him back to face justice for a murdered woman. So yes, she has rightly done a U-turn on the European arrest warrant, joint investigation teams, Schengen information sharing and co-operation over online child abuse.

The Home Secretary is right to admit that we cannot go back to the days when it took 10 years to extradite a terror suspect to France, or when it took 11 years to get Ronnie Knight back from the costa del crime. She is right to support the deportation of thousands of foreign suspects to their home countries to face charges. I agree that co-operation is needed in a whole series of different areas. We are glad, too, that the Home Secretary has accepted the need for the exchange of criminal records, Eurojust, the co-operation to protect personal data and measures on football hooliganism. We cannot go back to the days when foreign criminal gangs were untouchable and criminals were able to seek sanctuary on the continent. I am glad that the Home Secretary has decided to ignore her Back-Bench colleagues and the Fresh Start group and to listen instead to Labour, the Liberal Democrats, the police and victims of crime.

What is left that the Home Secretary wants us to remain opted out from? What is the massive transfer of powers—the historic transfer, the repatriation—that the Home Secretary wants us to celebrate today? We will not be signed up to some joint proceedings on driving licences, but they are not in force and are out of date. We will not be signed up to a directory on international organised crime, but it was closed down two years ago. We will not sign up to the guidance on the payment of informers, but we will carry on following it. We will not sign up to guidelines on working with other countries on drug trafficking, but we will carry on doing that anyway. We will not sign up to measures on cybercrime and mutual legal assistance, because they have all been superseded by other measures to which we have signed up instead. We will not sign up to minimum standards on bribery, but we will still meet them because the Bribery Act 2010 is still in place. We will not sign up to measures to tackle racism, but we will still meet them because we have hate crime legislation in place. We will not sign up to measures on accession, because they never applied to us in the first place. And we will not sign up to receive a directory of specialist counter-terrorism officers, but someone will probably send it to us in the post.

That is it. That is the historic transfer of powers that the Home Secretary boasted about—the great liberation from Europe and the great cause for celebration that she promised us when we last debated these matters. We have the power not to do a whole series of things we plan to carry on doing anyway, the power not to follow guidance we already follow, the power not to take action we already take, the power not to meet standards we already meet, the power not to do things that everyone else has already stopped doing and the power not to do a whole series of things we want to do anyway. This is her historic moment. She said it would be a first in the history of our membership of the EU; she wanted it to be her Churchill moment. Churchill? Only if it is the nodding dog in the back of the car.

This is a political charade. Now that we are playing charades, will the Home Secretary at least reassure us that she is not doing any lasting damage? Can she assure us that, for the sake of a few opt-outs, the warrants will not be lost?

[Mr John Redwood (Wokingham) (Con)]

Does the right hon. Lady not understand that if we opt back in to many of the big and serious measures we are discussing, a future Home Secretary in this House would be impotent in large areas of criminal justice?

[Yvette Cooper]

I must say that I am baffled that the right hon. Gentleman could consider a bit of guidance on this and a bit of a directory on that to be a huge, powerful thing in relation to criminal justice—[Interruption.] Oh, he is talking about the European arrest warrant. On that point, I think that he and I simply disagree. He would like us not to be able swiftly to deport foreign suspects to their home country to stand charge. He would like us not to be able swiftly to bring back to this country those who are suspected of serious crimes and need to face justice. Before we had the European arrest warrant, we waited years to get back the people we needed to have charged with serious crimes.

[Mr Redwood]

Of course I do not want to deny us that right, but I want us to have that right in a way that is accountable to this Parliament and in ways that we can amend.

[Yvette Cooper]

Unfortunately, the right hon. Gentleman wants us to sign huge numbers of different extradition treaties when the extradition treaties and arrangements we had before the European arrest warrant took years. I do not think that that is fair on the victims of crime who want to see justice done.

--- Later in debate ---

[Mr William Cash (Stone) (Con)]

Before I get into the substance of the arguments on the matter before us, I would like to refer to the letter that the Chairmen of the European Scrutiny Committee, the Home Affairs Committee and the Justice Committee received yesterday. It is addressed to each of us and it comes from the Secretary of State for Justice and the Home Secretary. It begins by saying that they would like to express their gratitude for the continued work of our Committees with regard to the 2014 opt-out decision. It then says:

“We have noted and considered your joint report. We deeply regret your collective view that the Government’s engagement has not been satisfactory on this matter. However, our view on the Government’s engagement with Parliament has not changed.”

There we have it. The letter goes on to say:

“As you will know, we intend to hold a general debate on Government time on 7 April”—

that is today. The letter continues:

“For the avoidance of doubt, we reaffirm our commitment to hold a second vote in both Houses of Parliament before making a formal application to rejoin any measures.”

However, it may be noted that that does not state that the second vote would take place before the negotiations have been finalised. I will come on to that in my subsequent remarks.

The difficulty that we face is that this matter has, to a very considerable extent, been a poor substitute for the debate that the European Scrutiny, Home Affairs and Justice Committees requested. This is the first time ever that all members of three independent, all-party Select Committees have unanimously agreed to a joint report on an unprecedented scale. The debate would give Parliament a genuine say and vote in determining which measures the Government should seek to rejoin before—I repeat, before—embarking on negotiations with the Commission and Council.

The motion that we are invited to support today merely refers to the consideration of the United Kingdom’s

“2014 justice and home affairs opt-out decision.”

That decision was considered in Parliament last July, when the Government secured a majority for their recommendation to exercise the UK’s block opt-out of around 130 pre-Lisbon police and criminal justice measures. The real question for us now, surely, is what the Government—a coalition Government who are largely taking account of considerations on EU matters which have been pushed forward by members of the Liberal Democrat party—will do about the 35 matters that are now up for rejoining.

The Prime Minister formally notified the Council of the UK’s decision to exercise the block opt-out on 24 July 2013. All the measures subject to that block opt-out will, as a result, cease to apply to the United Kingdom on 1 December 2014, unless, crucially, the United Kingdom submits a formal application to rejoin some of them.

Command Paper 8671, which was published merely a matter of days before the debate last July, includes a list of 35 measures that the Government say they seek to rejoin. I have to say, without prejudice to my differences of opinion with the shadow Home Secretary, that some of the cases that she put forward demonstrate that the issues are, in many instances, not quite as substantial as some might have imagined.

The motion that the Government wanted the House to approve last July would have endorsed the Government’s recommendation to enter into formal negotiations with the Commission and the Council on the list of the 35 measures, pre-empting any further consideration of the content and significance of those measures by the House and its Select Committees.

The Home Secretary came to the Floor of the House and I said at the time that I thought she was making the problem considerably worse by what she was saying. My intervention as Chairman of the European Scrutiny Committee, together with the Chairmen of the Home Affairs and Justice Committees, ensured that the House had the opportunity to consider the matter further, and was informed by the reports that all three Committees undertook to produce.

The need for further detailed consideration by Parliament cannot be doubted. The report by my Committee concluded that the list of measures was “incoherent”, and that it bore all the hallmarks of coalition politics rather than a serious analysis of the merits of each measure, or a careful balancing of the benefits of participation in extremely sensitive areas affecting fairness, liberty and justice, which are and should be accorded to individual United Kingdom citizens, and that the benefits of that participation should be set against the risks associated with accepting the jurisdiction of the European Court of Justice.

[Mr Redwood]

Will my hon. Friend confirm that this is a desperately serious matter, because if we opt in to any of these things, those subjects are no longer under the control of the House and the British people?

[Mr Cash]

Indeed, and not only that. Those people are no longer able to have recourse to our courts system in the same way that they would have done because the European Court of Justice, once it has made an adjudication and a judgment, binds our Supreme Court. Moreover, under section 3 of the European Communities Act 1972, it also binds this Parliament. That is why, with respect to the charter of fundamental rights, we said in a report that we published only last week that the situation was so serious. We voluntarily entered into the Act in 1972, and I emphasise the word “voluntarily” because what is entered into voluntarily can be adjusted later. Those two features led us to conclude, in respect of the conflict on the perception of the charter of fundamental rights, that the then Prime Minister, who specifically stated on 27 June 2007 that it was absolutely clear that the charter of fundamental rights was an opt-out, was wrong. Furthermore, he was not only wrong but, in effect, contradicted by the Attorney-General of the time when he gave evidence to us only a few weeks ago.

The consequence of this, which is extremely serious, is that we have an Act of Parliament that is covered in confusion, with some judges saying one thing and other judges saying another. As there is no doubt that the charter applies to the United Kingdom, the only way of dealing with this is not, with respect to my right hon. Friend the Secretary of State for Justice, by having another legal challenge, as he proposes, but by amending the 1972 Act, because the situation is so serious that we have to bring in primary legislation in order to get it right in the interests of the people of this country. All the rights contained in the charter overlap with rights of the sort that people in this country, as citizens of the United Kingdom, would expect to be accorded to them. These are the kinds of matters that arise in respect of what we are considering as a result of the whole question of the 35 measures.

--- Later in debate ---

[Mr Cash]

I do not think so. The driving force behind the arguments being made by the Conservative part of the coalition from the Back Benches is based on objective analysis in the interests of democracy, transparency and accountability in Parliament. Mr Farage cannot deliver anything, because he does not have one Member of Parliament. He cannot change one word of legislation—he can do nothing about any of this. I know that the situation is uncomfortable for the Secretaries of State at this moment in time, but I know for a fact that they will agree emphatically that the United Kingdom Independence party can achieve absolutely nothing. They know perfectly well that Conservative Back Benchers can achieve something. As in relation to many other European matters, Conservative Back Benchers can, by doing what we are doing now—working towards, we hope, a listening Government and listening Secretaries of State—achieve the results that we need, in the interests of the country as a whole. I hope that that answers the hon. Gentleman’s very useful question.

[Mr Redwood]

So do not make that mistake.

[Mr Cash]

Let us be in no doubt about that, as my right hon. Friend and distinguished colleague says—and more power to his elbow.

Let us for a moment return to first principles and remind ourselves why the United Kingdom, alone among member states, has a block opt-out. In this context, it is worth remembering that we do not of course have a written constitution, and that gives us flexibility, unlike every other member state. We are not therefore insular or isolationist in taking such a view; as I know both Secretaries of State will appreciate, we are exercising our democratic right to express our views in a free forum—this House of Commons, to which we are elected to represent our constituents—and, as Chairmen of three significant Select Committees, we have worked together on an all-party basis to agree a view on a matter of such importance.

United Kingdom Governments of all political persuasions have been wary of extending the full jurisdiction of the European Court of Justice to EU police and criminal justice measures—that has been true of Governments of all parties—because they have recognised that conferring primacy on a court beyond the jurisdiction of the United Kingdom, and of our Supreme Court and of this Parliament, is a very profound and grave constitutional step.

Whatever views may be expressed in the debate—some will perhaps advocate opting back in to a far wider range of measures, while others will say, “None at all”; and when it comes to the vote, there may be splits and fragmentations in political parties on both sides of the House—I say to the Secretaries of State that surely we can all agree on the significance of the negotiations on which the Government are about to embark and the vital need for Parliament to have a genuine say and vote at the right time, before the negotiations have been concluded, on a matter of profound practical and constitutional significance, which bears very heavily on the liberty of the subject. What matters now is not what we have opted out of, but what measures we propose to rejoin. I ask my right hon. Friends to consider this very carefully: this is the time for the Government to think again.

On the basis of the leaks and information about the discussions that come through to us in various shapes and forms, I have referred to what has been happening in many countries throughout the European Union, and I understand that very little headway has been made in negotiations so far. My right hon. Friend the Home Secretary shakes her head. Perhaps she would like to get up and tell us that everything is going fine.

I trust that today’s debate will cause the Government to think again and allow Parliament to vote on these important measures before the negotiations are concluded. This matter of principle needs to be settled not after the horse has bolted, but now, so I tell my right hon. Friends that this is the moment. This serious matter is of grave concern to many of our citizens, and this is the time to think again.

[Keith Vaz (Leicester East) (Lab)]

It is a pleasure to follow the Chairman of the European Scrutiny Committee, the hon. Member for Stone (Mr Cash). I thank the Government for allowing us the opportunity to have this debate today, and I thank the Home Secretary for the way in which she began the process of constructing a dialogue with Parliament. The Chairs of the three Select Committees—myself, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and the Chairman of the European Scrutiny Committee—met the Home Secretary when the process began, and we agreed what I thought was a timetable to enable Parliament to express its views on these important matters.

Both Parliament and the Government stuck to that timetable. The Home Secretary wanted parliamentary scrutiny through the Select Committees by the end of October. We did our best to ensure that our reports were agreed by then, and we presented our reports to the Government with the expectation—although I accept that there was no promise—that Parliament would be able to vote on the measures before the Government began their negotiations. The Home Secretary has strongly expressed her feeling that Parliament needs to vote on something. In other words, let her get on with the negotiations, let us see where we go, let us look at the direction of travel and, once the package is ready, Members may determine whether they support it.

The personalities of the three Select Committees, not just their members but their Chairs, are quite different. They are not people we can get together and expect agreement from on every word of every report, but all three Committees, and all three Chairs, agreed unanimously that Parliament should not only debate the matter but vote on it.

Only the usual suspects are here today, with the exception of my right hon. Friend the Member for Tooting (Sadiq Khan), who has taken time off from preparing for the London marathon next week to attend this marathon session. I suspect that if there was a vote at the end of these proceedings, we would have had a much better attendance and Members on both sides of the House would have come forward to express their views.

The Government have said that the three Select Committees have deliberated and produced reports. The hon. Member for Esher and Walton (Mr Raab) tabled 125 questions, so he ranks alongside the Select Committees as far as scrutiny is concerned. That is probably enough to enable the Government to know the direction of travel and to complete the negotiations, but I do not think it is enough, and neither does the Home Affairs Committee. We feel that a vote today would have been the best way to give the Home Secretary the mandate that she needs to go to the Council of Ministers and to other European Justice and Home Affairs meetings to discuss the measures that she does or does not want to opt into. I am sure she is a very strong negotiator. She is before the Home Affairs Committee tomorrow, and I am sure she will put up a robust performance, as she always does, but she would have given an even better performance before the Council of Ministers and her various European colleagues if she had had the backing of the whole House.

I was concerned to read the note that was recently issued by the current presidency of the Council of Ministers, to which I referred in my intervention on the Home Secretary. Statewatch has published what it says is a note from Greece, which currently holds the presidency:

“Due to national procedures with the UK Parliament, the Presidency is of the understanding that the UK Government would need to finalise its position on the re-opting list by June 2014, so that these national internal procedures can take place before the UK parliament’s summer recess. Therefore, it would be appropriate that the list of acts which will be subject to re-opting in be ‘politically’ agreed by June.”

Of course, that is not a note from the Cabinet or a leak from the Home Office. It comes, apparently, from the presidency. Perhaps there is a misunderstanding about the way in which we work. The Home Secretary has said today that she will get her list ready by December and that Parliament will then have an opportunity to vote. Given that Parliament is not usually given a great deal of time to deliberate such matters, I imagine that once the measures have been agreed, there will not be a huge amount of notice before Members come to the House and vote on these issues.

The Minister for Europe, in a written ministerial statement on 20 January, said:

“I hope that today I have conveyed to the House not only the Government’s full commitment to holding a vote on the 2014 decision in this House and the other place,”—

that has been re-emphasised by the Home Secretary today—

“but the importance that we will accord to Parliament in the process leading up to that vote.”

If there was a need to know the view of Parliament, it is contained in the joint report. The three Committees decided that the best course of action would be to have a good debate on the Floor and for individual Members to decide, in their own way, what they wished to vote on. I am quite certain that when this matter comes before the House, I will vote in a different way from some members of the Home Affairs Committee, because we have not taken a view on every single measure. One point that we have put before the House is that we think it vital, even if the Government decide to put the whole package before the House, that we have a vote on the European arrest warrant.

I do not believe that we have got it right with the changes to the European arrest warrant that the Home Secretary has announced. I support the European arrest warrant. I think, for the reasons given by both Front Benchers, that it is a vital tool when dealing with people who have committed terrible crimes. The Home Secretary mentioned one case in which somebody had stabbed someone 86 times. Of course it is right that we have a quick power that enables us to ask a colleague in the European Union to hand over someone who is suspected of committing a crime of that seriousness, and that that person should arrive as soon as possible. The shadow Home Secretary is absolutely right to support the European arrest warrant.

However, time and again Members of this House have raised worries, including in evidence to the Home Affairs Committee, that the European arrest warrant has not been used very well in a number of cases. The hon. Member for Enfield North (Nick de Bois) has spoken about the Andrew Symeou case. The Select Committee heard evidence from the constituent of the hon. Member for South Dorset (Richard Drax), Michael Turner, who was extradited to Hungary and incarcerated for month after month, but never faced any charges. We were therefore very concerned about the practicalities of what was proposed.

The Home Secretary said in her evidence to the Home Affairs Committee that she felt that she had made the changes that were necessary to deal with the concerns of Members of this House through the proportionality test. However, the evidence given by a number of individuals, some of whom were from Germany, indicated that that was not enough to protect a citizen who was the subject of a European arrest warrant that was issued for frivolous reasons.

[Mr Redwood]

I thank the right hon. Gentleman for the work that he is doing. Like him, I think that it is fundamental that the House has a vote on the European arrest warrant. It is a very flawed device. My big worry is that it is this House that must be the fount of our liberties and our criminal justice, not a foreign court.

[Keith Vaz]

That is a very important point. We need to be able to debate these issues and vote on them. The European arrest warrant is one such example.

The Government estimate that the unit cost of executing an incoming European arrest warrant in the United Kingdom is approximately £20,000. If we round up the 999 requests that were received in 2011, the estimated cost was £20 million. Some of the figures are extraordinary. Poland issued 3,809 arrest warrants. I had promised not to mention the arrest warrant issued for the man accused of stealing a wheelbarrow but cannot resist. Another example was a warrant for a man who absconded from a Polish prison while on day release. There was another warrant for someone alleged to have been involved in a minor drug offence. Another man subject to a warrant had given false details on an application for a £200 bank loan that, in fact, had already been paid off. They were all the subject of a European arrest warrant—there were 3,809 arrest warrants from Poland alone.

The number of surrenders from all countries to those 3,809 arrest warrants was 930. The UK issued 205 arrest warrants—we have a better surrenders record at 99. Germany issued 2,138 arrest warrants and had 855 surrenders. The total number of European arrest warrants received by member states is higher. Germany received 14,034 requests under the European arrest warrant scheme, the UK received 6,760, and Poland received only 296.

I travelled to Poland and met officials. I asked prosecutors why Poland kept issuing European arrest warrants for crimes that would not be regarded as very serious in our country—we would certainly not issue the EAW for such crimes. The prosecutors were very open, saying that issuing warrants was required by the law. If a judge issues a European arrest warrant in Poland, the Polish police are obliged to execute it, telephone the authorities in the UK, Germany or another country, and ensure that the warrants are executed. They were looking at ways in which they could limit the issuing of warrants. A much better use of the Home Secretary’s time would be to negotiate with some of those countries and tell them that they would make their cause much easier for us to follow, and make the European arrest warrant easier for us to defend, if they did something about their domestic law, as we have done. I am saying not that we are a model, but that we are doing extremely well in using the arrest warrants only for the most serious cases—those that the Home Secretary and shadow Home Secretary have described.

I would have liked the opportunity to vote on the Europol regulations. As the House knows, 3,600 internationally active organised crime gangs operate in Europe. We need Europol. We have a British head of Europol— Rob Wainwright. He was re-appointed by the Home Secretary and appointed by the previous Government. Mr Wainwright does an excellent job. We need to be in Europol and need to opt back in to that arrangement. That would enable us to be part of trying to deal with those very serious issues occurring all over Europe.

There are other examples, such as the measures dealing with the criminal records information system. We need to share such information but cannot at the moment because of the issues we are discussing. Members of the House would have liked the opportunity to discuss those matters and vote on them.

Although we will not be allowed a vote in the House tonight, I hope the Home Secretary will look again at the reports of the three Select Committees and allow hon. Members a vote as soon as possible. I hope that, when she winds up the debate, she will tell us whether the timetable set by the presidency is the right one—should we make our decisions politically by June, before the recess, and vote on them in December?—because that will give the House a clearer view as to how to proceed.