Justice and Home Affairs Opt-out

Julian Huppert Excerpts

Monday 7th April 2014 Commons Chamber

[Mrs May]

I am grateful to the Chairman of the Home Affairs Committee for setting out the reason behind the joint report from the three Committees. I will go on to explain exactly where we are in the process. He talks about the package coming before the House before it is adopted. We have made it very clear that there will be another opportunity for Parliament to debate the matter and vote on it.

I should remind the House of the background and the stage in proceedings we have reached. Under the terms of the Lisbon treaty, which the Labour Government signed in 2007, the UK had a specific and limited period of time to opt out of roughly 130 justice and home affairs measures covered by the treaty. That opt-out—Labour negotiated it, but never made it clear whether it would use it—had to be exercised en bloc, and before 31 May this year. Last July, the Government informed the House that we intended to exercise the UK’s opt-out. After debates in both Houses, Parliament voted for us to do so.

Accordingly, on 24 July 2013, the Prime Minister wrote to the then President of the Council of Ministers, informing her that the UK had exercised its right to opt-out from all pre-Lisbon police and criminal justice measures. That decision is irreversible, and will come into effect on 1 December 2014.

[Dr Julian Huppert (Cambridge) (LD)]

Paragraph 85 of the Home Affairs Committee’s ninth report, which dealt with the matter, states:

“The Government should…be explicit on what would happen if the proposed opt-in could not be agreed”—

in other words, they should be explicit on what would happen if the negotiations failed. That did not get a substantive response. Will the Home Secretary be explicitly clear about what will happen if the Government fail to agree the opt-in terms?

[Mrs May]

I will refer to one or two specific measures in relation to that, but as I have just indicated to the House, the Government have exercised the block opt-out. It is open to us to seek to rejoin any of the individual measures covered by it. If we do not negotiate to rejoin those measures, we will no longer be part of them from 1 December 2014.

When I came to the House last July, I explained that my ministerial colleagues and I had concluded that a number of the measures subject to the opt-out decision added value in the fight against crime and the pursuit of justice, and that it would therefore be in our national interest to seek to rejoin them. We believe that there are only a limited number of such measures—we set those out in Command Paper 8671 for the House to see before it voted on our decision to exercise the opt-out.

They were always separate decisions, and the Government have always been clear that Parliament and its Committees should have adequate time to scrutinise both. To make that explicit, we listened to the concerns of hon. Members, and particularly to the Chairmen of the Committees to which I have referred, and amended the motion for last July’s debate to invite the European Scrutiny Committee, the Home Affairs Committee and the Justice Committee to submit reports before the Government opened formal discussions with the European Commission, the Council and other member states.

--- Later in debate ---

[Mrs May]

No it is not, and I have to say to my hon. Friend that he is not party to the discussions that we are party to, but I am interested that he mentions Germany because it is one of the countries that has a greater ability to deal with the proportionality issue than the United Kingdom. As I say, there are other member states who have themselves already, either automatically because of their constitution or because they have taken powers, taken steps to ensure they can deal with the very issues we are dealing with in the Anti-social Behaviour, Crime and Policing Act I referred to earlier.

Florian Baboi is a Romanian national who was returned to the UK from Romania under an arrest warrant to stand trial for the murder of David McArthur in Birmingham in August 2011. He was found guilty in May 2012 and sentenced to life in prison. That is another case where the EAW has helped to bring dangerous offenders to justice.

So it is unsurprising that the Association of Chief Police Officers’ evidence to the Home Affairs Committee made clear its view that the arrest warrant is an “essential weapon” in the fight against serious criminality. This view was echoed by the outgoing Director of Public Prosecutions, who was clear that the streamlined process of the arrest warrant makes it easier to bring serious criminals back to face justice. I agree wholeheartedly with those assessments.

[Dr Huppert]

The Home Secretary is absolutely right to highlight the huge importance of the European arrest warrant. I am constantly surprised by people who are so fanatically anti-European that they would jeopardise our safety by trying to opt out of it. Is she aware that, last Friday, the Daily Mail wrote about a case involving Magdalena Ferkova, who was brought back to this country using the European arrest warrant? If even the Daily Mail is happy about it, there must be something to be said for it.

[Mrs May]

Today’s debate has probably generated a first in parliamentary history: my hon. Friend the Member for Cambridge (Dr Huppert) praising the Daily Mail in a debate in the House of Commons.

I want to turn now to some of the other important measures that the Government are proposing that we should rejoin. We are seeking to rejoin the European supervision order, which allows British subjects to be bailed back to the UK rather than spending many months abroad awaiting trial. My hon. Friend the Member for Enfield North (Nick de Bois) will be particularly aware of the benefits that this could have brought in the case of Andrew Symeou, to which he alluded earlier. I am sure that the whole House also wants to see foreign national offenders sent back to their own country. The prisoner transfer framework decision provides for non-consent-based transfers throughout the European Union, and the Government want to opt back into that measure and send criminals back home.

We also want our law enforcement agencies to be able to establish joint investigation teams with colleagues in other European countries. Hon. Members might ask why we want this to happen. I cite Operation Rico, the biggest-ever operation against so-called boiler-room fraud, which is precisely the kind of practical co-operation we want to encourage. Thanks to the excellent work of our National Crime Agency and its Spanish colleagues, there have been 83 arrests in Spain alone, and 18 in the UK. It is also quite clear that many other EU member states and their law enforcement agencies rely on measures of this sort to provide the necessary framework for practical co-operation in the fight against crime. In most instances, bilateral agreements would simply not work as effectively and our co-operation would suffer.

We therefore owe it to the victims of crime, both here and abroad, to ensure that such co-operation can continue unhindered. We owe it to the elderly who have been scammed out of their life savings, and to the hard-working people who have been conned into dodgy investments by fraudsters and had their hard-earned money shamefully spent on flashy watches, sharp suits and fast cars. I want to protect victims of crime, and I am determined to give our law enforcement the tools they need to do that.

The Government’s policy is clear. We have exercised the United Kingdom’s opt-out and are negotiating to rejoin a limited number of measures where we believe that it is in the national interest to do so.

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[Mr Cash]

Yes, I am deeply concerned about the matters that my hon. Friend raises. Indeed, the whole question of the role of the European Court of Justice is a matter of great concern, not only in this country but in many other countries of the European Union. I will not go all the way down the route of discussing the role of the Court. However, there are issues about who is qualified to be members of the Court and whether members of our own Supreme Court are entirely satisfied with the nature of the decisions that come out of it, just as they are concerned about questions regarding the European Court of Human Rights.

The reports of all three Committees are tagged to today’s debate, as is a joint report castigating the Government for their refusal to allow Parliament a debate and vote on the measures the United Kingdom should seek to rejoin before negotiations begin with the European Union institutions.

[Dr Huppert]

I presume the hon. Gentleman would accept that it is much harder for someone to negotiate when their hands are tied. Will he reassure me that he is not trying to ensure that we leave everything by making all the negotiations so difficult that they simply cannot be brought home? Is that what he is trying to achieve?

[Mr Cash]

What I am saying is that voting in this House is a test of our democracy. We have already had ample opportunity to consider the ramifications of the block opt-out and we now know the 35 matters in question. Given the importance of those issues to UK citizens, those who represent their individual constituencies in this House should now have the opportunity to vote on them. That is a matter of principle and it is also a matter of democracy. Once the decisions become irrevocable, the reality is that they will be binding, through the European Communities Act 1972, in a way that would not be the case if this were a general debate about home affairs policy. This debate is tied to the role of the European Court of Justice, against which there is no appeal.

Why have the Government set their face against an open, transparent and informed debate and vote on these measures before negotiations are concluded? In the absence of any convincing explanation from the Government—I say with great respect to the Secretaries of State that we have not had one—we are compelled to conclude that the risk of unravelling a carefully crafted coalition deal weighs more heavily than the desire for democratic accountability. Such an approach is inimical to this House’s European scrutiny system, which is based on our Standing Orders and on early analysis and assessment of the legal and policy implications of EU policies and legislation so that Parliament has a genuine opportunity to influence not only the Government’s position in negotiations, but their outcome as well.

In this case, however, the position is reversed. As I said in an intervention, Parliament will simply be asked to rubber stamp the outcome of negotiations that are being held behind closed doors and hidden from the searching gaze of the public and Parliament. Negotiations are being held behind closed doors not only by the Council of Ministers and the European institutions, but by the coalition itself. We do not know the basis on which these decisions have been reached. It is a double whammy.

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[Dr Julian Huppert (Cambridge) (LD)]

It is a pleasure to be called to speak, after a characteristically entertaining contribution by the hon. Member for Rhondda (Chris Bryant). I agreed with a lot, though not quite everything, of what he said. It is also interesting to speak after the hon. Member for Perth and North Perthshire (Pete Wishart), who made a fantastically strong case for the benefits of staying inside larger organisations. It was an excellent case for why Scotland should remain with the United Kingdom. I congratulate him on making such a strong case here, and I look forward to hearing it elsewhere.

It is good that there is general agreement among the three Front-Bench spokesmen of the three main parties, and indeed the Scottish nationalists and others, that the UK needs to remain opted in to many of these measures—the most significant ones. That is very important and I am pleased to have seen it. I pay tribute to both the Home Secretary and the Lord Chancellor for resisting some of the siren calls from their Back Benchers. They understand the importance of these measures and it is important that they stick with that.

I have a number of fears about where we might head. One, which I hope can be addressed, is the fear of a gap—that there may be a pause between us pulling out and going back in—and the consequences that that would have. This was mentioned earlier. There are some provisions for temporary measures and so on, but what would happen to the head of Europol, who is a Brit? Can he continue as head of Europol if we are outside, whether for a minute or a month? Would that cause problems? Would anybody agree to temporary transitional arrangements if that meant that the person in charge came from a country that was not part of Europol? That is a big worry.

The bigger worry, however, is that we might accidentally fall out of all these measures without that being the intention of the vast majority of the House. That could be because negotiations fail and we simply cannot reach an agreement—there was much in what the hon. Member for Rhondda said about the concern that many of our European partners have about our attitude to European co-operation. What happens if someone tries to cause trouble and we cannot close the negotiations? That also applies to other suggestions. If we have a formal, fixed vote before negotiations, that will make it incredibly hard to have a proper negotiation. There are a number of core measures. There are also a number of peripheral measures. If this House says, “These are the absolute lines,” it makes it very hard to create a proper negotiation—actually to have a discussion with the European Union. That could lead us to falling out unintentionally.

I am aware of what happened in the House on the issue of military intervention in Syria. There was a proposal from the Prime Minister to have military intervention without UN approval, and there was a proposal from the Leader of the Opposition to have military intervention without UN approval. There was a small group across various parties—about 50 of us—who did not want intervention without approval, but because neither side would agree with the other’s version of the wording, our small band won. I am delighted about that, but I would not want the small band of people who want us to be out of all these measures to win because of a disagreement between the two sides.

[Bob Stewart (Beckenham) (Con)]

On a point of clarification, I thought that the Syria vote was on the option to keep a military option on the table, not an option to go to war.

[Dr Huppert]

My hon. Friend is right on the technicality that there would have been a second vote, but the principle ensconced in both was to have military intervention without the UN approval that some of us wanted. However, that is not the subject at the heart of this debate.

I share the concerns expressed about whether the whole effort has been worth while. The shadow Home Secretary is not in her place. I do not always agree with her, but I did agree when she said that the things we will not remain opted in to are, generally speaking, the less important ones. They are the ones that do not matter; they are more trivial. That is by design, but it also means that the entire balance will not have been changed as a result of this. The Home Affairs Committee agreed unanimously that if the Government proceed with the option as proposed, it will not result in any repatriation of powers. Some of us think that is a good thing—that collaboration and co-operation are worth having—but others have concerns. Has it been worth the huge amount of parliamentary, ministerial and official time and effort in negotiating with partners to achieve what will probably—hopefully—be a very small effect?

It is important to highlight why this matters. We have had a great deal of discussion about process, but we should remember why it is important. Our work with our partners in this area of policing and criminal justice is one of the great benefits of European Union membership. There are other benefits—on trade, free movement and a stronger voice on the international stage—but that ability to share information to catch UK criminals on the run and to bring them back to face justice at home, and to fight international terrorism and crimes such as child abuse, come from our participation in the European Union’s justice and home affairs measures. Europol is an incredibly important element in the fight against organised crime. We would suffer badly if we lost that. Cases such as Operation Rescue involved huge co-operation with 12 other countries, with Europol playing a critical role in intelligence and analytical support which resulted in the safeguarding of at least 230 children worldwide, 60 of whom were in the United Kingdom, and the arrest of more than 180 offenders, 121 of whom were arrested in the UK. That is the sort of thing that would be put at risk by those who are simply allergic to anything that mentions the word “Europe”, and there are a number on the Conservative Back Benches, though fortunately not on the Front Bench. We do take that lead. It is not a coincidence that the head of Europol is a Briton.

[Mr Cash]

The hon. Gentleman raises the question of those people for whom the word “Europe” evokes all kinds of spectres. [Interruption.] Well, he got very close to it. He is only repeating Bismarck in the late 19th century, when he said, “Whenever anybody uses the word ‘Europe’, I then realise what they are up to.”

[Dr Huppert]

I thank the hon. Gentleman for that enlightening quote. He can choose to describe himself how he likes.

It is strange that the Home Office, while trying to stay within Europol, has created ambiguity about the relationship with Europol by, for example, not opting in to other measures. I want the Government to have flexibility on these things so that they can take many of the other Europol measures and not be bound too tightly by the exact details of a vote here. It will make it very strange. As the Home Affairs Committee highlighted, that runs contrary to the logic of the Government’s stated policy.

We get huge benefits from the European arrest warrant. The Association of Chief Police Officers—it nears the end of its career but it continues for now at least to speak for senior police officers—has highlighted that relying on alternative arrangements to the European arrest warrant

“would result in fewer extraditions, longer delays, higher costs, more offenders evading justice and increased risk to public safety.”

That is what has to be set against the allergy that many have to this issue.

Keir Starmer, former Director of Public Prosecutions, said that failure to opt in could lead to an

“uncertain, cumbersome and fragmented approach, which is likely to have a damaging impact on the prosecution of crime in England and Wales.

That is what has to be addressed by those who want us just to leave the EAW. I am glad that Ministers have taken a sensible line on this. We need to reform the European arrest warrant, but we are better off for having it. For example, the Government’s Command Paper highlights that an extradition now takes on average three months, whereas it takes about 10 months for countries that are not covered by the EAW. That is a substantial change, and some people would not be extradited at all. Those who want to go back to the old framework would slow down the process of justice in some cases and stop it in others.

Of course, we need to make some changes to the EAW, and I pay tribute to the principled stance taken by the hon. Member for Esher and Walton (Mr Raab), who I do not think is allergic to this. He has some detailed, thought-through concerns about a number of aspects, and I hope we will hear thoughtful comments from him later.

Changes have been made. For example, the Anti-social Behaviour, Crime and Policing Act 2014 made some changes to extradition to ensure that our courts can take greater account of these matters, and the judge will have to consider the seriousness of the offence and the likely sentence. Changes are also happening within Europe to try to make the situation better and to deal with cases where people might face a long period of pre-trial detention. Many of our Members of the European Parliament have been working on this. In particular, Sarah Ludford—Baroness Ludford—has been successful in securing a majority in the European Parliament for a package of EU-wide reforms of the European arrest warrant. These recommendations are important. They propose the inclusion of an EU-wide human rights safeguard clause preventing miscarriages of justice, and measures to improve standards of detention, specifically pre-trial detention. I hope that the European Commission and this Government will make sure that these reforms happen by coming up with proposals to enact them that we then get into law.

If we want to benefit from these tools and change them so that they work for Britain, we obviously have to be there at the table leading the negotiations. If we walk out, we give up on any chance of doing that, leaving our citizens vulnerable at home or when they go holidaying or working in Europe. Crime crosses borders and so must we. That means co-operation, information exchange, and justice systems that match our own high standards. We should opt in to these measures and make sure that we do not accidentally walk out, because that is the key to achieving this effectively and efficiently. I hope that the Home Secretary and the Lord Chancellor will successfully conclude these negotiations, and that my fears of our sleepwalking out of them do not come to pass, because that is the best thing for Britain.