The UK’s Justice and Home Affairs Opt-outs

Lord Beith Excerpts

Thursday 10th July 2014 Commons Chamber

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

First, Madam Deputy Speaker, may I apologise for missing the start of the Home Secretary’s speech because of a meeting with a Minister which had been arranged before today’s timings were affected by the earlier statement? I am very glad to follow my colleague the Chair of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz). We have worked together, along with the Chair of the European Scrutiny Committee, to try to improve the way Parliament is able to address these matters. It has been a struggle, and the outcome in terms of the process is still far from satisfactory, but we have reached this point and we are having this debate. There will be a debate and a vote or votes at a later stage—we are still unclear as to what that procedure will be. This has at times been like getting blood out of a stone, and I do not think that is particularly in the Government’s interests. I appreciate some of the problems that they face, but in order to obtain parliamentary support they need to give Parliament the opportunities to feel confident that it has been able to examine things properly. I am therefore glad that we now have the Command Paper, which includes all the impact assessments. It would have been very helpful to have had those much earlier, and of course we still do not have the impact assessments on those measures the Government do not propose to enter—perhaps those would have helped to illuminate the Government’s reasons for the decisions they made.

There are no changes in the opt-ins in the Ministry of Justice field; the changes are in the much larger number of measures that come within the Home Office’s sphere. The Justice Committee has therefore already examined and reached conclusions on the measures, and it is unlikely to do a great deal more on the issue between now and the later stages of consideration. We published a report, and the Government are still pursuing a view with which we broadly agree, and I will explain why.

The measures include six mutual recognition measures, including one on financial penalties that originated with the United Kingdom and Sweden. There are measures on previous convictions, prisoner transfers, judgments in absentia and European supervision orders. The Government propose to rejoin all those measures with one exception, which is the probation measures framework decision, to which I will return. The Committee agrees that the Government were right, in the national interest and in the interest of effective cross-border co-operation, to seek to rejoin five of the measures.

The Committee of course strongly supports the UK’s participation in the prisoner transfer framework decision because it is a priority to reduce the number of foreign nationals held in UK prisons. That decision is also an important part of the overall package for reforming the European arrest warrant. The Committee is particularly conscious of the problems presented by the large number of foreign nationals in UK prisons. Those are nationals from many countries in UK prisons, and the Government must continue their efforts in relation to those countries. With European countries, however, there is a much better prospect of achieving a prisoner’s return to their native country because we are not dealing with countries in which human rights considerations, on the face of it, would appear to prevent a return.

One of the five measures, the European supervision order, enables a defendant or suspect on non-custodial pre-trial bail or other supervision to return to their home member state to await trial there under supervision, and we support and welcome that measure. The probation measures framework decision provides the basis for mutual recognition and supervision of suspended sentences, post-custodial licences and community sentences, and the Committee noted the Government’s concerns about the measure’s operation:

“In view of the potential value of the Framework Decision we consider that the Government should pursue the matter in their negotiations on the opt-in list to see whether these concerns can be dealt with. We would not wish to rule out participation in the measure if concerns about its drafting can be overcome”.

We discovered from another source that a solution to that problem is alleged to have been found. The source was a press release issued by the General Affairs Council on 24 June, from which it appears that the Government have undertaken to consider opting back in to two Prüm decisions and the probation measures framework decision at a later stage.

In evidence to our Committee on 9 July, the Lord Chancellor admitted that he had been pressed by the Commission to rejoin the probation measures framework decision, arguing that it was closely linked to the prisoner transfer agreement. He repeated the objections that he had previously expressed to the Committee, particularly that we do not have much experience of the measure’s operation in other countries and the legal problems that it might cause. He said that the solution reached in the negotiations was that the UK would look at the matter again in the next Parliament to see whether rejoining would be in the national interest. It would have been preferable if the Government had volunteered information on that, either in correspondence or in a Command Paper, instead of leaving it to Committees to glean information from Council press releases and media reports.

More generally, the Justice Committee supports the Government’s choice of measures to rejoin in the national interest and in the interest of fighting crime. We reached some agreement with the Government on minimum standards measures that set standards already met by the United Kingdom. We said that

“the arguments for opting into the…minimum standards measures are primarily symbolic, and our view is that those arguments do not outweigh the disadvantages of bringing wide areas of criminal justice in the UK unnecessarily into the jurisdiction of the Court of Justice of the European Union.”

Many traditions in our judicial systems in England, Scotland and Northern Ireland are different from those that prevail in continental practice, and it therefore makes sense not to become involved in matters in the European Court of Justice when doing so does not serve the national interest. There is value in signing up to minimum standards measures if it has a persuasive effect in other countries, but the Committee’s view is that that is outweighed by the disadvantages of creating case law in the European Court of Justice on matters that do not need to be treated in that way.

The changes to the list of 35 measures do not appear to affect the overall balance of the package. Some of the changes are the consequence of measures ceasing to be subject to the block opt-out, and others, such as the additional measures on Europol and the Schengen information system, are ancillary to the Government’s decision to participate in Europol and the Schengen information system and may be regarded as necessary on the grounds of coherence and practical operability. It is interesting that the Government have achieved the conjuring trick of changing the list of measures while retaining the same total number. I suspect that has something to do with internal party management within the Conservative party, but the outcome for the balance of the measures will continue to be supported by the Committee. The measures that the Government have agreed to opt into will materially assist in the fight against serious crime and in the safeguarding of the freedom of our citizens. The Government have my support.

--- Later in debate ---

[Mr Raab]

My hon. Friend is absolutely right that this is a growing problem, and I think that that is recognised at senior levels of the judiciary. We should listen with as much vim and vigour to what the judges have to say as we do to what the Association of Chief Police Officers says.

On the internet search engine ruling, it is important to say that there is a cultural and values issue at stake. It is not just some legal constitutional issue. A right to be forgotten may suit French privacy laws that gag the publication of the peccadilloes and crimes of the rich and powerful, but it directly cuts against our tradition of media freedom, transparency and free speech.

Having seen the effect of ECJ judicial activism on this area of crime and policing, do we really want to allow the ECJ to determine the powers and responsibilities of British police forces, the British criminal process and even foreign forces, through joint operations, operating on British soil? That is a huge risk for us, and I fear that we risk the Luxembourg Court doing for British policing what the European Court of Human Rights in Strasbourg has done for UK border controls.

One reason why I refuse uncritically to defer to ACPO on these issues is that it is ill-equipped to gauge the long-term threat to operations and ultimately public safety of these developments. These are constitutional developments, so it is not just a question of consulting on the administrative arrangements that we have in place now. If anyone in favour of opting back into these measures had listened to this debate, they would have thought that ACPO had been wholeheartedly in favour of opting into more measures than we are doing. If we look at the evidence it gave to the House of Lords Constitution Committee, we see that it recommended opting into only 13 measures, which is substantially fewer than the number that we are planning to opt into.

The second issue that I wish to address is the European arrest warrant. Many Members will have their own constituency horror stories, and I am afraid that I am no different. In fact, my constituency seems to attract problematic cases. The one that sticks in my mind and, frankly, in my throat is the case of Colin Dines, a former judge of impeccable character who was falsely accused of involvement in a major mafia-related Italian telecoms fraud. The story would be almost amusing if it were not so tragic. Without any evidence presented or any opportunity for him to explain his innocence to the Italian authorities, which he was confident that he could do, he was the subject of a European arrest warrant, which was nodded through by our courts, as they must be. He faced the prospect of incarceration or, at best, house arrest for months on end until his trial. Tragically, the only thing that temporarily saved him from being carted off was that he had a stroke from the stress of it, which meant that he was temporarily deemed not fit to travel. The case remains hanging over him like the sword of Damocles, which is totally unacceptable. It is also unacceptable for me as a law maker in this House to see the fate of citizens across this country.

That case is not an isolated injustice. If Members want to grasp the scale of the justice gap under the EU law and the European arrest warrant, they should listen again to our senior judiciary, such as our top extradition judge who gave evidence to the independent inquiry into extradition carried out by Sir Scott Baker. Lord Justice Thomas said that the European arrest warrant system is “a huge problem”—his words. He did not say that it was a small problem, or that there were isolated incidences, but that it was a huge problem that had become “unworkable”.

I pay tribute to the Home Secretary, who has looked very carefully at what can be done within the EU framework decision. Additional safeguards were introduced by the Government in the Anti-Social Behaviour, Crime and Policing Act 2014 and they are positive steps in the right direction, and the Government deserve great credit for looking at the matter so carefully. In my opinion, the safeguards do not go far enough. That is also the opinion of Fair Trials International. In particular, the bar on extraditing suspects when the case is not trial-ready could be made tighter. I fear that the new leave to appeal requirement undercuts all the safeguards introduced. Above all, it is a shame that we were not allowed any time on the Floor of the House to debate those clauses, important and positive as they were, because they were introduced late in Committee.

I understand from Ministers that there is no appetite in Brussels to revise the EU framework decision itself, a point that I make to my hon. Friend the Member for South Swindon. That is a sad reality that we have to accept. The question is what we do next. I believe the preferable option would be to opt out of the European arrest warrant and renegotiate a bilateral extradition treaty with a limited number of extra safeguards—the few modest additions that we need to make it safe for our citizens. We would still have fast-track extradition, but we would stop the justice system in effect selling our citizens out, which is what it does at present.

[Sir Alan Beith]

Will the hon. Gentleman give way?

[Mr Raab]

Very briefly, as I need to allow time for the winding-up speeches.

[Sir Alan Beith]

Does the hon. Gentleman envisage bilateral extradition treaties with each individual member state?

[Mr Raab]

I shall address that point squarely in a moment. I need to move on fairly swiftly.

In the meantime, between the renegotiation and the opt-outs, we could temporarily continue the EAW arrangements for, say, a year to allow the conclusion of the negotiation. In the worst-case scenario, if partner states in Brussels refused, we would have to fall back on the Council of Europe conventions that predated the European arrest warrant. It has rather breathlessly been suggested that without the EAW, we would risk letting people such as Jeremy Forrest or terrorists such as Osman Hussein go scot-free. That is irresponsible nonsense, and it must be addressed head on. Ideally, we would negotiate a bespoke extradition treaty, as I have suggested. We want something between the old cumbersome conventions and the current automaticity, but even under the Council of Europe treaties the main temporary effect would be to delay extradition proceedings from weeks to months. That would not mean any fugitive or suspect going free or any increased risk to the British public.

I have asked a range of parliamentary questions and written to Ministers on this, and I am grateful for the replies that I have received. The evidence is clear. There certainly are gaps under the Council of Europe conventions. They do not apply to some tax offences, but that is not the same as dangerous criminals threatening public safety. Even then, fewer than 0.4% of prosecutions for tax offences last year were facilitated by a European arrest warrant. The second gap is that Council of Europe conventions would require us to respect the statute of limitations on crimes in other EU jurisdictions. Again, that is hardly the kind of loophole that would stop the hot pursuit of dangerous fugitives. The third gap relates to EU countries that limit extradition of their own nationals, except under an EAW. That would affect extradition requests to Latvia, Slovakia, the Czech Republic, Belgium and Germany.

It is a very odd argument that we must accept the injustice of the European arrest warrant for British nationals because a few other countries have stronger safeguards protecting their citizens in their normal extradition arrangements. In any case, it will have become clear to the House that none of these temporary gaps under the Council of Europe conventions would apply to people such as Jeremy Forrest and Osman Hussein. It is irresponsible scaremongering to suggest that they would. Opting out of the European arrest warrant, on the Government’s own evidence to me, might for a relatively short period delay EU extradition proceedings while we conclude a better arrangement, but the risk of dangerous fugitives going free is negligible. Public safety is a perfectly respectable, reasonable and legitimate argument to weigh against the threat to individual liberty. We do it in the House all the time. Administrative convenience is not.

The third issue I wish to address is that the Government are considering opting into Prüm measures on data sharing, which would cover fingerprints, DNA, car registration details and so on. There are serious reservations about the impact of this on British citizens, and serious risks. The UK DNA database is far bigger than any other EU database, and innocent British citizens are far more likely to find their samples caught up in a foreign criminal investigation. EU authorities are more likely to assume that the availability of UK DNA samples is a strong indicator of previous criminal behaviour. We know that the EU standard for matching DNA samples is 40% less accurate than the UK standard, which accentuates the risks. Taken together, the Prüm data sharing, the European investigation order and the European arrest warrant make up a rather dangerous cocktail for an unprecedented number of future miscarriages of justice. The House should have no illusions about that.

My final point is about the alternative to opt-ins. The EU has legal personality in the JHA field, so, to answer the point made by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), if we were to refrain from opting back into any of these measures we could negotiate with one party and not 27. So that we understand that it is a practical right and not a theoretical one, let me explain that the EU has already done that with 24 other non-EU countries in JHA, so there is no reason in principle or practice why Britain cannot do the same. I ask Ministers whether that question has been raised in Brussels and what precisely the objections were. If the Government do not feel that that is feasible, has a marker at least been laid down in Brussels about future British renegotiation, making it clear that we will want to return to the whole area of JHA in the round, given what has been said?

I suggest that at the very least the Government, or perhaps even the Prime Minister, should make the context behind the decisions clear by letter to the new Presidents of the Commission and of the Council. If not, I fear that this, our best opportunity to demonstrate that we can deliver renegotiation in Europe, runs the risk of being perceived both at home and across the EU as a signal that when push comes to shove our deeds do not match our words.