Access to a Lawyer

Debate between Jonathan Djanogly and James Clappison

Wednesday 7th September 2011 Commons Chamber

[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.

[Mr James Clappison (Hertsmere) (Con)]

My hon. Friend is setting out the situation with great care and extremely competently. If we were to take the decision to opt into the directive, would we then be subject to the European Court of Justice’s jurisdiction in respect of what he described as very wide ranging matters to which we had opted in?

[Mr Djanogly]

The European Court of Justice has jurisdiction in determining how European law is to be applied, but it is not an appeal court so it would not constitute any type of court of appeal.

I look forward to hearing the views of hon. Members on this recommendation and I commend the motion to the House.

--- Later in debate ---

[Mr Djanogly]

This has been a constructive debate, and it has provided a timely opportunity to place the Government’s position on the record. Let me reconfirm, not least for my hon. Friends the Member for Stone (Mr Cash) and for Bury North (Mr Nuttall), that we believe it is important that action is taken to ensure that the standards of criminal procedural rights across the EU are adequate—I stress the word “adequate”. That will help to ensure that British nationals in other member states receive the rights that underpin a fair trial. It will also help to provide the level of mutual trust necessary to support European legal instruments that require competent authorities to accept and act upon decisions or judgments given in other member states.

The Government see clear benefit in setting minimum standards across the EU in respect of certain aspects of criminal procedure. As many Members have noted, standards of criminal procedure in relation to access to a lawyer and the right to communicate upon arrest are high in the UK. We see benefit in an effective and workable directive which would raise standards in this area.

The Opposition spokesman, the hon. Member for Hammersmith (Mr Slaughter), asked a number of questions. He asked why the UK had opted in to the previous two directives on the procedural rights road map, but not this one. The Government believe it is important that action is taken to ensure that the standards of criminal procedural rights across the EU are adequate. The previous Government opted in to the directive on interpretation and translation in criminal proceedings, and this Government opted in to the victims directive. The hon. Gentleman asked why we opted in to that directive, but not this one as well. The Government have decided to opt in to the victims directive establishing minimum standards for the rights, support and protections of victims of crime because it meets the criteria set out in the coalition agreement with regard to EU justice and home affairs measures and is more in line with existing UK practice. I can confirm to the hon. Gentleman that we currently intend to retain free legal advice in police stations, as I have said publicly in the past, and he will hear more on that in Committee tomorrow.

The hon. Gentleman and my hon. Friend the Member for Stone mentioned individual examples of process, on which the Government cannot comment. However, I noted the disappointment of the hon. Gentleman and the hon. Member for Oldham East and Saddleworth (Debbie Abrahams) about the fact that we do not intend to opt in at the outset.

I also understand the disappointment of Members who have set out the difficulties faced by constituents who have faced trial in certain other EU member states. However, the directive as published by the Commission goes very much beyond what we see as the minimum standards of the European convention on human rights and would have an adverse and exceptionally costly impact on our ability to investigate and prosecute offences effectively. We do not think it would be sensible to opt in to the directive at this stage because it is not possible to be completely confident that all these difficulties could be mitigated through negotiation.

I thank my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) for his supportive remarks, and I can confirm that we intend to negotiate and win on our positions. In order to do so, we intend to work very closely with our European partners—that work is already under way—to develop a text that takes greater account of the practical realities of criminal investigations and prosecutions. We are not alone in our concerns, and we are optimistic that the directive that is finally adopted might look rather different from that published by the Commission.

Our aim during negotiations will be to amend the text constructively, so that the UK might be in a position to contemplate participating in the final directive, and we have three months from the proposal in which to opt in. We can be part of the negotiations if we do not opt in, but we would not have a vote, so we intend to participate in, and influence, negotiations to make the directive better. We would opt in post-adoption only if our criteria were met, and following appropriate consultation in Parliament. I can confirm to my hon. Friend the Member for Stone that there is no inevitability to opting in, and I understand many of the concerns he raised. At the same time, I have to tell him that there is no presumption against opting in unless there are profound reasons for doing so, such as he suggested.

[Mr Clappison]

If the decision is taken to opt in—which I would regret, for reasons I have explained—I hope it will be made clear that our Government are opting in to a major piece of criminal justice legislation and choosing to hand over to the EU and the European Court of Justice jurisdiction over a wide swathe of our criminal procedure.

[Mr Djanogly]

We will still have jurisdiction over criminal procedure, and subsidiarity would apply as well, but my hon. Friend makes his point.

Any decision to opt in at a future date will be taken on the basis that the Government approach legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system. Any decision to opt in at a future date would also be subject to scrutiny in Parliament.

Question put.

The Deputy Speaker’s opinion as to the decision of the Question being challenged, the Division was deferred until Wednesday 14 September (Standing Order No. 41A).