Criminal Procedural Rights (Opt-in Decision)

Lord Beith Excerpts

Tuesday 18th March 2014 Commons Chamber

[Chris Grayling]

I was going to make reference to that. I can confirm that we have agreed that we will not participate in the first and third item at any stage. We have agreed across the coalition that we will take a look at the second item in the discussions that take place. We will participate in the negotiations, but I say to the House this afternoon that I do not expect, at the end of that process, any change to the decision that we are proposing, which I hope the House will endorse this afternoon.

I have also given our officials permission to take part as observers in the negotiations on the other two measures, because, naturally, I am keen to ensure that our European partners take sensible steps, too. It is right and proper that we should be aware of what takes place, but I could not conceive of a situation where we could consider taking part in the presumption of innocence and the legal aid matters. Therefore, it is not our intention at any stage to participate.

I was glad to see that the European Scrutiny Committee has also concluded that the UK should not opt in to the proposals, so we are of one mind on them. It is also worth highlighting that we are considering these three measures alone today, and that the Government continue to engage with the Commission on wider 2014 measures. I will briefly discuss the possible pros and cons of each proposal, as it is important that the House understands the basis for our decisions and the proposal we are putting to it this afternoon. First, I wish to make a general point relevant to each of the proposals. Each of them would of course apply to all criminal cases in the UK. None is restricted to cross-border cases. That means that if we accept any of the proposals, we also effectively agree that, henceforth, the relevant matters of internal procedural law will be determined at an EU level rather than here. In addition, the highest court overseeing the implementation and interpretation of the rules would thereafter be the European Court of Justice and not any UK court. That is, of course, true of all EU laws, but it is important to bear that in mind as we consider the proposals.

I remind the House that the agreement we reached on the 2014 measures is that we do not believe that Britain should be part of a European justice system. We do not believe in the harmonisation of court and legal procedure, and our decisions reflect that view. I do not agree with those who wish to create such a unified system. Other member states are free to do so if they choose, but we have decided that this country should not be part of such an approach.

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

The process that my right hon. Friend has described raises another problem, and I wonder whether he shares my view on it or approaches it from a different perspective. The proposals open up the possibility of conflicting decisions between the European Union system and the European convention on human rights on a number of issues. What happens in Britain has passed the test of the ECHR, but it would not necessarily pass the tests set in the proposals.

[Chris Grayling]

That is a very valid point, and my right hon. Friend is right to raise it. As he knows, we have different perspectives on the European Court of Human Rights, but he has highlighted one of the incongruities that will exist if we simply hand over jurisdiction in such crucial areas to the European Court of Justice, because there are some clear contradictions between European measures and those set out in the convention. Whatever our different perspectives in the coalition, we share that view of the problems that may arise from such Europeanisation of law.

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

As the hon. Member for Hammersmith (Mr Slaughter) said, the handling of this set of proposals has not been ideal, to put it mildly. The criticisms made by the European Scrutiny Committee have considerable weight. They also suggest that because of time constraints the Committee did not come to the Justice Committee for an opinion on proposals that fall pretty squarely within its remit. That would have been a much more desirable process to follow, and lessons ought to be learned from this.

[Mr Cash]

That process is exactly what we recommend in our report, which is currently awaiting the Government’s response. The right hon. Gentleman and I are in complete agreement about this. The more often it is possible, as in this case it was not, to go to one of the departmental Select Committees for its considered opinion, the better.

[Sir Alan Beith]

Perhaps unusually, my hon. Friend and I are indeed at one on this issue. As Chairman of the Liaison Committee, I give every encouragement to Select Committees to be ready to respond when the European Scrutiny Committee draws attention to matters and seeks opinions on them. That is how the process should work, so that we make the maximum uses of the resources of expertise among Members and, indeed, House staff, that we have built up over recent years.

Let me turn to some of the specific measures. On the presumption of innocence, the basis of the directive is that there might be significant difficulties in cross-border matters when identical standards have not been observed. However, no measurable evidence has been produced showing that cases under the European arrest warrant, for example, have frequently been obstructed over a lack of compliance with identical standards. Therefore, the whole basis on which the Commission is proceeding appears to be weak. The suggested measures would certainly adversely affect the UK provision that in certain circumstances inferences can be drawn from silence. The House has debated this at great length and with some care, and the courts have developed the operation of the system with some care. The caution administered to suspects reflects the fact that adverse inferences can be drawn from silence. These provisions would completely disrupt all those processes.

The biggest danger is one that I mentioned earlier in an intervention—that processes that have satisfied tests under the European convention on human rights would not necessarily pass the test of this directive. We would therefore end up with two alternative sources of challenge to English criminal law, leaving open the possibility of passing one and failing the other. That would be an undesirable state of affairs. It would cause confusion and, indeed, forum shopping, whereby someone could obtain their preferred outcome.

On the recommendation regarding legal aid and access to a lawyer, the jurisdiction both in England and Wales and in Scotland already satisfies the provision. My colleague and friend Sarah Ludford MEP has raised issues about the fact that, without the provision, there is no requirement for access to a lawyer in the state that issues the European arrest warrant. Problems can arise from that. Indeed, we have seen them in practice, whereby, had appropriate legal advice been available in the issuing state, an ill-founded arrest warrant might never have been issued in the first place. That factor needs to be considered in the future as the situation develops.

On procedural safeguards for children, a number of problems would arise if we were to adopt the Commission’s provisions, including with regard to the difference between ages, which has already been referred to, and the mandatory representation issue. As the Lord Chancellor has himself indicated, the United Nations convention on human rights is the most accepted international baseline for the protection of children in legal proceedings. It would be better if we proceeded with these matters through advocacy of that convention and used all the resources available to the European Commission to advocate and support adherence to it, rather than create complications between member states over issues that are not central to the protection of children’s rights.

I feel most strongly about an issue I addressed earlier. I do not want to see the role of the European convention on human rights as the primary European benchmark for human rights undermined by the creation of rival or alternative procedures. That is the danger we would run if we opted into the directives.

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[Chris Grayling]

I thank all Members who have contributed to the debate. I am delighted to discover that there is a consensus across the House on the approach that we have recommended, although it seems not to include the hon. Member for Swansea West (Geraint Davies).

We heard some interesting contributions. Having quoted from comments that he made two years ago in the Law Society Gazette, the hon. Member for Hammersmith (Mr Slaughter) compared regime change in the Ministry of Justice to regime change in Crimea, which may be considered to have been a slight exaggeration. He then agreed with us, although I note that he did not answer my question about whether he shared our concern about the jurisdiction of the European Court of Justice and the implications for our own legal position of signing up to measures of this kind, given that, if we do so, jurisdiction will pass from our courts to the ECJ.

I apologise to the three Select Committees for the delays that have occurred, but they will understand that, in this day and age, there are a number of debates to be had—in this Parliament, in Brussels, and sometimes in Government—before we finally reach a decision that can be presented to the House. I will always endeavour to ensure that information is given to Committees in a timely way, but I am sure that my hon. Friends will agree that it is better to have the right decision than to have an early decision.

[Sir Alan Beith]

That is true, but it is better still if, rather than our waiting until the Government have finally formed a view, the support and help of Committees is obtained at an early stage in the process.

[Chris Grayling]

I entirely accept that. We will try to ensure that we do what we can to supply the right information to Committees in the future.

The right hon. Member for Leicester East (Keith Vaz), who is no longer in the Chamber, made the valuable point that we should be cautious about the issue of jurisdictions. That is what lies behind my concern about measures such as these. It is important to understand that an opt-in is not—as was implied by the hon. Member for Swansea West—a simple process. It is not just about setting an example to the rest of Europe. It is about accepting the jurisdiction of an international court in regard to important areas of law. As was pointed out by my hon. Friend the Member for Stone (Mr Cash), there is no right of appeal following a ruling from the European Court of Justice. My hon. Friend also rightly observed that our judiciary are increasingly concerned about the role of international courts. On a number of occasions recently, they themselves have suggested that decisions that should be made in our courts and our Parliament are now being dealt with on the international stage. It is clear that that is causing some discomfort to at least some of them.