Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Lord Pearson of Rannoch Excerpts

Monday 17th November 2014 Lords Chamber

[Lord Hannay of Chiswick]

My Lords, I think that tonight’s debate marks the final parliamentary chapter in this tangled tale of Britain’s block opt-out from pre-Lisbon justice and home affairs legislation, and of its aim to rejoin those 35 significant measures. Your Lordships’ House has been closely involved in this matter from the very start. It has been a tangled tale over the past two years, and I suspect that some Members may be heartily sick of a process that has involved two weighty reports from your Lordships’ Select Committee, three full-scale debates and any amount of behind-the-scenes work and consultation. Dry, complex and technical though the process may have been, however, it concerns matters that are crucial to Britain’s ability to maintain our own internal security and to combat effectively the continuously rising tide of international cross-border crime. Whether you are talking about drugs, human trafficking, money laundering, cybercrime, terrorism or child pornography, all these matters are assisted by those 35 measures.

The role that your Lordships’ House has played in terms of parliamentary scrutiny and holding the Government to account has been an exemplary one, and I pay tribute to those others, along with myself, who participated in it and to the noble Lord, Lord Boswell, who led our efforts. We should register tonight that the processes in this House have worked well. It is not part of our duty to intrude on the private grief of another place; suffice it to say that the processes there seem to be a good deal suboptimal.

We are in a totally different position, as the Minister said when he opened the debate, because when we debated and approved the triggering of the block opt-out we also approved the reintroduction of the 35 measures. We decided that in July 2013. I hope that the noble Lord, Lord Lamont, and others will forgive me for pointing out that pretty well everyone who has criticised the line that the Government are now taking failed to speak in any of those debates.

Now we are where we are. I welcome the fact that the Government adjusted their Motion for tonight’s debate to take into account the fact that the 35 measures needed to be explicitly referred to. It was, I think, a bit of a mistake not to have done that in the other place. I have no hesitation in supporting the Government in the measures they now wish to rejoin. I equally have no hesitation whatever in supporting the noble Lord, Lord Boswell, in the criticism that he has made of the processes that have led us here.

I find it saddening that these European debates descend so much into what I can only describe as ideology, and are not enough concentrated on the substance of the matter—about which the evidence taken by the committee that I and others served on was pretty conclusive. It is a pity. Europe is not religion, it is politics; and in politics you have to make compromises. In this case, I believe that the Government have reached a very satisfactory compromise.

[Lord Pearson of Rannoch]

My Lords, when the noble Lord, Lord Hannay, accuses some of us of religious fervour, I have to say to him: “Da che pulpito vien la predica?”. From what pulpit comes the sermon? As noble Lords have said, as part of the block opt-in we are talking about tonight, we are looking at the European arrest warrant. The overriding objection to the European arrest warrant can be simply put. It allows the extradition, pretrial detention, trial, sentencing and imprisonment of British citizens in inferior foreign jurisdictions under the final jurisdiction of the inferior Luxembourg court. Trial by jury largely disappears in these cases and so does habeas corpus. Under Napoleonic law, the investigator and the judge are often the same person. There have already been several famous miscarriages of justice and I have no doubt that there will be more, whatever tinkering takes places with the system. My noble friend Lord Willoughby de Broke and others have mentioned some of those cases.

When I say that we are dealing with inferior foreign jurisdictions, I mean that we do so under the final auspices of, believe it or not, that engine of the treaties, the European court of so-called justice in Luxembourg, which is not a court of law at all—it is the engine of the treaties. It has to find in favour of ever closer union because that is what its instructions are from the treaties. When I say that we are dealing with inferior foreign jurisdictions, let me give you the example of just one of them—my beloved Italy. In Italy, pretrial detainees make up around 40% of the prison population. In this country, it is around 15%. Court processes in Italy last an average of 116 months. In the UK, it is an average of six months, rising to 10 at the Crown Court. In Italy, the maximum pretrial detention is 18 months. In England and Wales, this is set at six months, but a recent report found that our average was 13 weeks.

Under English and Welsh law, there is a presumption in favour of releasing the defendant pending trial. In Italy, circumstantial evidence is enough for a judge to order a pretrial detention. In Italy, a pretrial detention is decided not in open court but by a judge in chambers, possibly by the same chap who investigated the case in the first place. The defendant has no right to take part in the decision-making process and is not represented by a lawyer.

I hope that that is enough for Italy. Then there is Greece, that cradle of the Symeou case. I could go on about other EU jurisdictions, but I hope that I have said enough to make my point. No amount of convenience can override the principle that we should not be sending our citizens into these rotten systems, unless our courts are satisfied that the evidence which sends them there is sufficient.

There is only one advantage in going ahead with the European arrest warrant and these opt-ins. They will move the United Kingdom even further along the road to leaving the failed project that is the European Union.