European Public Prosecutor’s Office

Kelvin Hopkins Excerpts

Tuesday 22nd October 2013 Commons Chamber

[Martin Horwood (Cheltenham) (LD)]

I add my congratulations to you on your election, Madam Deputy Speaker.

It is important that we retain some sense of proportion in this debate. We are, after all, discussing an idea which, in practice, would tackle the simple issue of crime against the EU, particularly fraud against the EU budget. While I welcome the Minister’s fairly practical approach, I think that the hon. Member for Kingston upon Hull North (Diana Johnson) doth protest a bit too much in painting such a cataclysmic picture of the complete collapse of the European criminal justice system were this to go ahead. That is completely out of proportion, and I think she is just trying to prove her Eurosceptic credentials. This is not quite the massive issue that some might imagine. I recognise, however, that there is a thin end of the wedge argument in that the proposal sets out a different principle in creating a new kind of European competence, albeit one already recognised in treaty. I also recognise the specific acknowledgement in the coalition agreement that Conservative Members, in particular, do not want to pursue such a solution to the problem.

In this case, on balance, the Government are right in their interpretation of the subsidiarity principle. The Commission has not demonstrated that the proposed path has to be taken because nation states are incapable of tackling fraud against the EU budget, and it therefore fails the subsidiarity test as currently presented. There is an important role for pro-European Members of this Parliament and other Parliaments in applying the subsidiarity principle properly. We should not allow any kind of drift towards dealing at a European level with competencies that are really better exercised at a lower level.

[Kelvin Hopkins (Luton North) (Lab)]

rose—

[Martin Horwood]

I am happy to give way to my friend on the Labour Benches.

[Kelvin Hopkins]

Yet again the hon. Gentleman talks about Europe rather than the European Union. Many of us love Europe in all sorts of ways but do not necessarily love the European Union.

--- Later in debate ---

[Kelvin Hopkins (Luton North) (Lab)]

May I add my congratulations to you on your election, Madam Deputy Speaker? I am very pleased to see you in the Chair.

I support the motion. As a member of the European Scrutiny Committee, I am pleased that we are winning an argument and making a point. It is good to see both Front Benchers in agreement and taking a robust stand on matters to do with the European Union.

The ESC is concerned that, over time, the British legal system is being chipped away at by EU reform. The proposal would be another step away from our own legal system and rights. The legal system on the continent—this is particularly true of France—tends to combine prosecution and investigation, but our legal system is very different and follows a different route. It is very important that we retain our great legal traditions and our legal system, which I think works extremely well. Of course, we also do very well in investigating fraud compared with some other member states.

I support what has been said by the Minister and my hon. Friend the Member for Kingston upon Hull North (Diana Johnson), who spoke so well. I also apologise for missing the first part of the Minister’s speech because I was detained elsewhere. Thank you, Madam Deputy Speaker, for allowing me to say these few words on behalf of the European Scrutiny Committee.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I would like to join the hon. Member for Luton North (Kelvin Hopkins) in giving credit where credit is due. This debate is taking place on the basis of the report and reasoned opinion of the European Scrutiny Committee. The Government agree with that reasoned opinion, but it is very much that of the Committee. In my capacity as Chairman of the Liaison Committee and the Justice Committee, I think that the European Scrutiny Committee is entitled to the credit. If there is something wrong with our procedure, it is that it does not fully recognise that process. However, the outcome is a happy one because pretty well everybody agrees that the reasoned opinion is correct, and it accords with the Government’s view.

The proposal for a European public prosecutor offends against the subsidiarity principle. One of its primary objectives is to strengthen the protection of the European Union’s financial interests. That is a perfectly reasonable objective to pursue, but it does not have to be achieved through the creation of a European public prosecutor. Indeed, it would not necessarily be best achieved in that way. The other limb of the general argument in favour of the European public prosecutor is that it is a further development of the area of justice. That provides the hint that subsidiarity is in danger of going out the window.

There are many ways in which the European Union could improve the way in which it deals with fraud. If national Governments fail to take the actions that they should take, they should be shamed into doing so. We also have to be a little careful about using percentage figures on the success of prosecutions. There is considerable danger if anybody thinks that the target of a justice system is to have 100% success in prosecutions. Courts will sometimes find people not guilty because the evidence has not been brought forward or sustained. The 100% target is a rather dangerous principle to import into this debate.

It is often pointed out that the European Union could do a lot more to resist fraud if it designed its schemes and its disbursement of money in ways that lent themselves to fraud a great deal less. Nothing is fraud-proof, but schemes can be designed that are less susceptible to fraud than many of those that have been developed over the years by European institutions.

Many elements of the proposal offend against subsidiarity. The European public prosecutor would have investigative powers, search and seizure powers, and interception and surveillance powers. To have those powers in operation at a supranational level would be a pretty significant change.

The proposal would take away the role of the Director of Public Prosecutions in prosecuting decisions in matters relating to EU fraud. It would have a similar effect on the roles of the procurator fiscal and the Lord Advocate in Scotland. The proposal would ignore the deliberate separation of decisions on investigation from decisions to prosecute in England and Wales, which is a long-standing element of our system. We can argue about whether that barrier should be retained, but we should have that argument in the context of our legal system and not allow it to be forced on us by the introduction of the European public prosecutor.

I am convinced that in the minds of some people, the creation of a European public prosecutor is a route to a prosecution role that goes wider than EU finances. I am not always tempted by slippery slope or Trojan horse arguments, but some of the same people have advanced the case for a prosecutor to deal with EU finances and a wider role for such an office.

[Kelvin Hopkins]

The right hon. Gentleman must accept that there has been constitution creep for decades in the European Union. Surely that is what we are trying to stop.

[Sir Alan Beith]

There have also been many advances in the way in which European nations use the European Union to achieve highly desirable objectives, such as through co-operating to deal with international crime. An intrinsic problem with the way in which the European Union was constructed, which is quite understandable given the way in which it was constructed, is that there is a belief in the Commission that the way forward is always to create further powers and jurisdictions. We have created a system that has that element within it. However, those who worry about Britain’s membership of the European Union have a tendency to underestimate the benefits and the value that have been achieved through many of its processes.

My hon. Friend the Member for Cheltenham (Martin Horwood) pointed out that there is a close relationship between this proposal and the issue of Eurojust. Unhelpfully, it would compromise the acceptability of Eurojust to many people if the European public prosecutor was located within Eurojust. There are other aspects of interrelationship between the two issues. I regard Eurojust as an extremely valuable institution that has many processes that are of great advantage to British citizens. It has an important role in the prevention and detection of crime against British citizens and British interests. But again, even within the Eurojust proposals that we will be looking at again shortly, the role of the national members of Eurojust in the Commission’s proposal to order investigative measures changes the relationship between law enforcement and prosecution that is so firmly a part of our system.

There is, of course, another feature of the proposals that I am glad has not attracted the attendance of some of my hon. Friends on the Conservative Benches: if we went ahead with it, it would trigger a referendum. That might make it attractive to them to vote against the motion tonight, or whenever we have a deferred Division. I should not really tell them this, because it might inflame them in a way that I do not want. Basically, I think we all agree that establishing a European public prosecutor’s office is not the direction in which we ought to go and that it offends the principle of subsidiarity, as is extremely cogently argued in detail by the European Scrutiny Committee.

[Chris Heaton-Harris (Daventry) (Con)]

It is a huge pleasure to see you in the Chair this evening, Madam Deputy Speaker. It is the first time I have had the opportunity to say, “Congratulations.” I congratulate you on your position.

I am a member of the European Scrutiny Committee, so it is a pleasure to witness the report being debated and accepted on all sides of the House. It is also a pleasure to see other members of the Committee—the hon. Member for Luton North (Kelvin Hopkins) and my hon. Friend the Member for High Peak (Andrew Bingham). I am sure the Minister is delighted that unfortunately my hon. Friend the Member for Stone (Mr Cash) cannot be here this evening, so I intend to fill in for him to a certain extent by taking the next 45 minutes of his life away from him. [Laughter.] No, I do not intend to detain the House for too long.

It is obvious to all who have read the Committee’s report or listened to the speeches this evening that the creation of the European public prosecutor’s office would breach the principle of subsidiarity. In fact, it is so obvious that my good friend the hon. Member for Cheltenham (Martin Horwood) has noticed that there is a breach. Blimey, it must be bad—if there is a breach that he can spot, most of us could drive a coach and horses through it. We should therefore be very aware of what the Committee is highlighting.

The European Commission proposal to establish the European public prosecutor’s office has been around for quite some time. I can remember as a Member of the European Parliament being stuck in a debate in the early 2000s listening to a fantastic German lady, Diemut Theato, who I think was the head of OLAF for a short period and then my chair of the Committee of Budgetary Control, argue vociferously for the office of European public prosecutor and everything that goes with it. This new regulation, however, would create a slightly different beast—it has morphed even since then. This would be a new EU body with a head, the European public prosecutor, and at least four deputies, with powers to conduct investigations and prosecutions in member states against people suspected of crimes against the EU budget—fraud. I heard the Minister say that there will be a further debate next week and I look forward to speaking in it, if I am called. . However, if I may, I would like to spend a few seconds on what the proposal might mean.

Each member state will have a representative of the EPPO, known as a European delegated prosecutor, who will be empowered to direct national investigative and prosecuting authorities when it comes to crime against the EU budget. There is an interesting question about what constitutes a crime against the EU budget and how that would be defined. They will have exclusive competence to investigate and prosecute suspected offences against the EU budget. The investigative measures include surveillance, search and seizure, and even the summoning of witnesses. These would be significant powers. The EPPO would also be able to act as prosecutor in national courts.

The possible creation of the EPPO is enabled via the Lisbon Treaty, and I recognise the work of the previous Government to ensure that we were not swept up at that time. It can be created through this new regulation, but we are not bound by it: we can choose to opt in thanks to the justice and home affairs arrangement. However, the Lisbon treaty actually discusses the public prosecutor’s power being extended to other serious cross-border crime, such as computer crime, money laundering and a host of others. In itself, that could make the EPPO more powerful than even the FBI, and it would hold the power to investigate and prosecute in nation states. That looks like the creation of a federal European criminal justice agency, which is not something that anybody in Britain would like to see.

The EPPO does not fulfil the “principle of subsidiarity”, by which

“the Union shall act only if and in so far as the objectives…cannot be sufficiently achieved by the Member States”.

As the Minister outlined, I am aware that this is possibly only the second time that the yellow card will be used, and member states have an eight-week opportunity—which closes this coming Monday, I am told—to use that yellow card. As a football referee, I very much like the yellow card and believe we should use it more often when it comes to European regulation.

There are three aspects to why the European Scrutiny Committee says that the EPPO does not comply with subsidiarity, and I think they are worth highlighting. First, the European Commission has not adequately considered options for alternative means for improving the fight against fraud, such as preventive measures at the point EU funds are given out—that point was well made by the Chairman of the Justice Committee. Secondly, the Commission has not waited to see the impact of the proposed new directive on criminal offences and sanctions relating to fraud against the EU budget—indeed, I believe that that directive has not yet been properly agreed, so perhaps we are putting the cart before the horse on this occasion. Thirdly, the Commission used questionable data and flawed assumptions when assessing the proposal, such as unreliable convictions data from member states—it is questionable how much money the prosecutor would get back, and no one knows how the figure in the proposal was reached.

When becoming Members of the European Parliament, all are given jobs—that is part of the deal—and being the most junior of the juniors when I got elected in 1999, I was given the job of rapporteur for OLAF. That came on the back of the fraud of the European Commission in 1999, and the report of the committee of wise men that said what should be done.

[Kelvin Hopkins]

I am most interested in the hon. Gentleman’s experience of the European Parliament. May I ask whether one is paid extra for these jobs?

[Chris Heaton-Harris]

If only that was the case. My wife questions the sanity of my move across to this place anyway. We were well rewarded for what we did; it paid exactly the same as for Members of Parliament at the time, but Members of the European Parliament now have their own salary, and pay a different tax rate on most occasions.

OLAF came out of the report of the committee of wise men. It was mainly to investigate Commission fraud and crime, which was one of the things that brought down the European Commission in the first place. It also had plenty of powers to protect the EU’s financial interest. In the debate next week I intend to highlight what can be done in the reform of OLAF to allow us to prove to the European Commission that the whole new power grab of having a European public prosecutor’s office is not required. If the Commission used the powers and bodies it already has—already well funded and in general relatively well run—we would not be in this position in the first place. I wholeheartedly support the motion.