Criminal Procedure Policy: EUC Report

Lord McNally Excerpts

Monday 4th February 2013 Grand Committee

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, clearly the noble Lord, Lord Beecham, had got his Monday morning grumpy hat on in his final tirade against the Government. I will come back to the points that he made in a minute.

I know a little about the House’s European Union Committee and I pay tribute to it. This report is in the great tradition of a committee at this end of the building which has always produced evidence-based reports in a considered way. This inquiry has been helpful in that

I concede one point to the noble Lord, Lord Beecham: the response and debate timetable seems to be leisurely, to put it mildly. I am not sure who takes the blame for that. Nevertheless, we have had the benefit of a good report.

I make no complaint that a number of references have been made to the Government’s decision to adopt an opt-out/opt-in approach to the 2014 decision. I shall take up the invitation of the noble Lord, Lord Bowness, not to pre-empt that debate. I am aware that Sub-Committees E and F of the European Union Committee are looking at this matter and I look forward to the report. I suspect that it will be in the great tradition of the European Union Committee in terms of an evidence-based analysis and wise recommendations. I shall not pre-empt that debate today.

It was interesting that the contributions to the debate endorsed the findings of the report that co-operation in this area is not the great danger to our beloved criminal justice system that might be suggested. The noble Baroness, Lady O’Loan, made the point that, in practice, it has worked extremely well and to the benefit of British citizens to have a policy of co-operation and of trying to set minimum standards. I understand the point of the noble Lord, Lord Hodgson, about national amour propre. I always find in our papers there is always scepticism that any country could have a justice system as fair as ours and that foreigners are not to be trusted with such matters. However, the more serious reality is that we have different forms of systems and that that sometimes makes it difficult to get complete cohesion. However, I take the point of the noble Lord, Lord Hodgson, that it is important that we carry public opinion and understanding with us on these matters.

A number of references have been made to the European arrest warrant. Again it is a matter of balance. The noble Baroness, Lady O’Loan, made a number of telling points about the effectiveness of the European arrest warrant and the fact that it is an important weapon in the armoury against organised crime, cross-border crime and other matters in what the noble Lord, Lord Maclennan, referred to as an increasingly mobile continent.

However, I do not think that it is fair to say that we have taken a negative view on that. We have pointed out, and a number of contributors have raised the fact, that there are issues about proportionality, dual-criminality and pre-trail detention that we wanted to discuss to try to get the arrest warrant improved. That has been our approach. The Home Secretary has responsibility for the European arrest warrant and it has been considered as part of the Scott Baker review. The Government’s response to that review is to take the opportunity of the 2014 opt-out decision to work with the European Commission and other member states to reform the European arrest warrant and to improve its operation.

The noble Lord, Lord Maclennan, warned and underlined that, in these areas, we cannot have complete harmonisation and that the case-by-case approach that the Government have taken has been right but that EU legislation adds value. My experience in the Ministry of Justice over the past two and a half years, as the report itself reflects, is that we have taken a very pragmatic and positive view in decisions in this area. The idea that somehow we were sitting out European co-operation in this area simply is not true.

The noble Lord, Lord Hodgson, asked whether we felt that existing limitations are sufficient to protect the criminal justice systems of member states. We believe that they are. There are a number of safeguards in the treaty to protect the criminal justice system of member states, including the existence of the emergency brake. The UK and Ireland have the additional safeguard of the opt-in. We agree that it is a difficult issue; that is why we scrutinise any new proposals to ensure the appropriate balance. Again, I take on board the noble Lord's argument that we must make sure that EU theory and its practice on the ground match up.

On the question of the directive on access to lawyers, it is too early to say what our final decision will be. We would want to consult Parliament were we minded to opt in and a series of further trialogue meetings is scheduled to take place in the next few months. However, we are participating in the negotiations. If the Government are satisfied that the final text represents an appropriate balance between the rights of defendants and the wider interests of justice, we will give serious consideration to applying an opt-in to it. We will consult Parliament about that before any decision is made.

The noble Lord, Lord Beecham, asked whether there was an assumption that UK citizens resident abroad could not benefit from these measures. The right should be afforded to all EU citizens resident in the relevant member state. He also asked what progress has been made on the victim directive. The directive was adopted on 4 October 2012 and is due to be implemented in 2015. The directive is aligned with the aims and objectives of our domestic criminal justice policies to ensure that the needs of the victim are put first.

[Lord Beecham]

Can the noble Lord enlighten me and other noble Lords as to why such a long time has elapsed between adopting the directive and implementing it? There may be a good reason for it but it would be interesting to hear what it is.

[Lord McNally]

No, I cannot give an explanation, but I will write to the noble Lord about that.

On the implementation of the European supervision order, we take our international obligations seriously and have implemented the vast majority of the measures, subject to the 2014 decision. Any further implementation of these measures will be considered on a case-by-case basis as part of the wider 2014 decision. In practice, the European supervision order is unlikely to help to avoid lengthy pre-trial custody in cases where an EAW has been used to secure the return of the suspect. That is for the simple reason that, the EAW having been needed to secure the return, the suspect has shown himself to be a flight risk, having already resisted voluntary return. In those circumstances, it is difficult to see the same suspect persuading the court to allow him to return home again.

The Government welcome the report. As I said, it shows the committee’s practice of employing detailed scrutiny and careful analysis. Criminal procedural rights reflect long traditions which have been developed carefully and with close consideration by both courts and Parliament, and now the devolved Assemblies. They reflect matters of considerable public policy concern, ensuring that offences can be properly and effectively investigated and prosecuted and that criminal proceedings are fair.

A number of safeguards are built into the treaty to ensure that the differing legal traditions of member states are respected. In addition, the UK opt-in applies in this area. We think that, in principle, minimum rules concerning the rights of individuals in certain areas of criminal procedure and the rights of victims of crime can help to facilitate judicial co-operation and mutual recognition—a point made by my noble friend Lord Maclennan. These measures are intended to build greater trust among the competent authorities of the EU member states which are charged with acting on decisions made in other member states by giving them greater confidence that the decisions were made against a background of minimum standards.

In order to ensure that all legislation in this area is appropriate and effective, we think that it is important that EU legislation is brought forward only in accordance with the treaties; where there is a convincing evidence-base for the need for such legislation; and where it is a proportionate response to an identified problem. This is an area in which there has been progress within the EU in recent years. The criminal procedural rights road map was agreed at the end of 2009 and subsequent legislative proposals have been brought forward by the European Commission. Furthermore, the Budapest road map, agreed in June last year, focuses on strengthening the rights and protection of victims of crime. So far, the Commission has brought forward six legislative proposals in this area and four directives have been adopted. We expect up to three further instruments to be proposed this year.

As the committee notes in its report, the UK already has a high standard of criminal procedural rights. This has been noted by the Commission, which has taken inspiration from our systems and procedures. The directive on the right to information clearly draws upon the PACE notice of rights and entitlements provided to suspects in England, Wales and Northern Ireland. The directive on the rights of victims of crime was also inspired by our practice. We have found that we can participate in most proposals in this area without having to make substantial changes to UK law and practices. The changes that we need to make to implement the victims directive are largely aligned to our domestic reform objectives—that the needs of victims are put first across the criminal justice system. We welcome the committee’s consideration of the potential added value of EU legislation in this area. The committee notes that in certain areas the EU legislation can be of real practical benefit to UK nationals travelling abroad if they become subject to the criminal justice systems of other member states, either as victims or as suspects. My noble friend Lord Maclennan and the noble Baroness, Lady O’Loan, made that point.

We also welcome the committee’s examination of the potential disadvantages of measures in this area: namely, the disruption to diverse and sensitive national criminal law systems. The Government have set out our approach to proposals for further EU legislation in the justice and home affairs area, including criminal procedural law, in the coalition agreement. The Government approach proposals 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. This approach has been applied in respect of all criminal justice measures that have been brought forward since 2010 and we have opted in to all the criminal instruments in this area.

As I said at the very beginning, this has been an extremely useful debate on the basis of a very helpful report. Despite the rather intemperate rant of the noble Lord, Lord Beecham, at the end of his remarks, I think that the way in which we have gone about these areas has been pragmatic and analysis-based—where the Government have been more in keeping with the traditions of your Lordships’ European Union Committee than the noble Lord suggested. We have a good practical record. Where we have questioned, looked for amendments or waited before making a final decision, those actions have been based on good policy grounds, not on any kind of ideological motivation or hostility to the process. In that respect, I look forward to further work with the European Union Committee.