The UK’s Justice and Home Affairs Opt-outs

Robert Buckland Excerpts

Thursday 10th July 2014 Commons Chamber

[Mr Robert Buckland (South Swindon) (Con)]

It is always a pleasure—nay, an honour—to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who speaks with vigour and all the colour that we have come to expect from him. Those of us who have known him since long before 2010 know that he is characteristically forthright on these issues. Whether he is absolutely right on them is another matter, however, and it is to the issue about which he has rightly expressed concern today that I now turn, bearing in mind the time remaining and the need for other speakers to make their contributions.

Yes, the opt-ins do involve some concession of sovereignty. To try to deny that would be wholly wrong. The issue, therefore, is one of competence and the extent to which the European Court of Justice in Luxembourg determines issues that fall to be decided as to the interpretation and operation of the measures, subject to the opt-in. On that, to some degree I share some of the concerns raised by my hon. Friends on the Conservative Benches.

I am an opponent of judicial activism. As a politician who is philosophically of the centre-right, I do not believe that it is for judges to interpret treaties and other documents as living instruments that adapt according to their view of the world at any one time. We see that problem in the Court at Strasbourg and the Court in Luxembourg, but we also see that problem in the courts here in London, here in England, here in Wales, here in Scotland. This is not an issue that is particular to Europe and its institutions. That is a very important point when we remember the nature and scale of the task before us, because, to my mind, this is not a debate between Westminster and Brussels or Luxembourg; this is a debate about whether it is legislators—politicians—who ultimately determine the extent and ambit of our laws, or whether, as increasingly is the case, our laws are interpreted in different ways by judges.

The old certainty of politicians passing and enacting the laws and judges implementing them and making determinations on a case-by-case basis gets more blurred with the passage of the years, and that worries me, as a Conservative, and I know it worries all my fellow Conservatives. I know it worries my right hon. Friend the Lord Chancellor. We discussed the matter only yesterday in the Justice Committee, and he made some very wise interventions about his concerns about judicial activism.

Therefore, I thoroughly understand and embrace the concerns that are being expressed by my hon. Friends. What I take issue with them on is this: the full extent to which the European Court of Justice will have jurisdiction over the general run of justice and home affairs in this country. I accept that on the opt-out issues it will have jurisdiction, and there are dangers that, as we have seen with other interpretations—for example, of the free movement directive—there could be judicial creep and an extension beyond the original intentions of those who framed the directives we are talking about. But when it comes to the fundamentals of English and Welsh justice, I see no threat to the long-established traditions, customs, laws and practices that we have in our criminal courts. I see no threat to the principle of trial by jury. I see no threat to the inferences that are to be drawn from the exercise by suspects of their right to silence.

We have had debates on these things. I recall going with my right hon. Friend the Chair of the Justice Committee to Brussels to discuss a directive, which is now coming to the fore, about the inferences to be drawn from the exercise by the accused of the right to silence when arrested. We had a lively discussion in the justice directorate-general about the inappropriateness of that directive in its application to the criminal law of England and Wales. That sort of detailed case-by-case, directive-by-directive discussion will be the surest safeguard against the general creep that my hon. Friends and others fear.

[Mr Jenkin]

I admire my hon. Friend’s intellectual honesty in admitting that in respect of the European arrest warrant the activities of the European Court of Justice may lead to judicial creep, which may lead to a “wheelbarrow situation” and so on. If such were to occur, who would be accountable?

[Mr Buckland]

My hon. Friend asks the fundamental question we should always ask, about not just European legislation, but domestic legislation and the way in which we in this House have legislated in an unsatisfactory and ambiguous way that has opened the door to more and more judicial review, more and more challenge and more and more interpretation by domestic courts in ways that were perhaps not envisaged by the legislators. So I repeat the point and turn it back to him: I do not think this is a particular problem at a European level.

[Mr Jenkin]

If a wayward British court makes a judgment that is clearly not intended by Parliament but has arisen because of a perfectly legitimate and understandable interpretation of one of our own statutes, we can hold a Minister accountable, we can ask them to bring forward an amendment to the law and we can change the law. If the same happens in respect of European legislation, how do we hold the law accountable?

[Mr Buckland]

We have mechanisms within the European structure to do that, via the Council of Ministers, renegotiation, treaty change—

[Mr Jenkin]

There is the flaw in your argument.

[Mr Buckland]

I disagree, and I am more than willing to talk briefly about how we renegotiate these things. Talk about repatriation is unhelpful. If we are going to get actual reform in Europe, we have to look at it across the piece. Addressing the issues of judicial activism and the way in which the ECJ interprets the articles of the European treaties is fundamental to any meaningful renegotiation to deal with the democratic deficit argument that my hon. Friend and others posit.

[Mr Jenkin]

I am very grateful for my hon. Friend’s generosity in giving way. I have served in this House for more than 20 years and I have seen court judgment after court judgment from the ECJ, or indeed from our own courts—in the Factortame case, famously, even a political agreement reached between the member states about our fisheries was overturned by a decision of the court—where the Minister here says that nothing can be done about it. That has been the case time after time. We are moving these decisions, and their consequences, beyond the democratic accountability of the national Parliament.

[Mr Buckland]

But remembering that the competence of the ECJ deals with the application of EU law in the UK, we have to be very careful about the words we use, because very often people misunderstand the full ambit of that Court. Another example would be the way in which case law in Strasbourg is wrongly assumed to be the law of this land—it is not the law of this land and never has been, not even under the much-reviled Human Rights Act. There are little misunderstandings that germinate into a general feeling among the public that we have lost control.

[Mr Jenkin]

We have.

[Mr Buckland]

I disagree. It is up to us in this House and elsewhere to show leadership and to explain to people that we have not lost the degree of control that has been suggested. As much as I admire my hon. Friend, I sometimes think that his is a counsel of despair when it comes to the future of Britain in Europe. It is time for us to remind ourselves that we are still a country with huge influence and that we still have a massive part to play in the affairs and future of the European Union. We are one of the biggest economies in Europe, and there are very many strategic interests that make our membership of the EU good not only for us but for other member states.

Before I resume my seat, I will return to the issues at hand. The European arrest warrant is not only in this country’s interest because we can repatriate UK citizens from other member states who are alleged to have committed crimes in this country; it also ensures that EU nationals who are fleeing and evading justice in their own country can be sent back. Those practical realities bring us back from the theoretical debate that we sometimes have here. We are talking about real lives and the tragedies that surround every criminal case about which we have heard this afternoon, which we know is a real issue for those involved. Let us not forget the human element.

I have gone through the list of measures, and it seems that the principle of mutual recognition of criminal offences, for example, will be very important not because of the way in which we operate the courts in England and Wales but because of the way in which other member states recognise UK criminal convictions, which is an important point. If UK citizens go to other member states and commit offences, it is right and in the general interests of combating crime and properly reflecting criminality that their convictions recorded in the UK are properly recognised. Those are practical measures that not only address the need to combat crime but help to increase trade and commerce—all the efficacy arguments that are a natural part of what it is to be a member state of a developing Union that is the biggest market in the world. It is the continent of which we are a part. I think, therefore, that the practical realities reflected in the opt-in measures are a proper reflection of the absolute need for this country to work hand in hand with other member states and to ensure that we can have a criminal justice system that works well for all British citizens, not just here in the UK but in other parts of the EU.

The European arrest warrant has been properly criticised on the grounds of proportionality. My hon. Friend the Member for Esher and Walton (Mr Raab) will shortly wax lyrical on the matter with his customary expertise and I look forward to his contribution with interest, but I would say that the introduction of the amendments on proportionality in recent legislation goes a long way towards addressing the concerns that he and others have repeatedly expressed. I have the same sorts of concerns about the disproportionate use of such a serious measure. The decision to extradite or to remove someone from one jurisdiction to another is a serious step to take.

We have to be practical about this issue, and the Government have done everything they can to ensure that, although we have opted out of the general swath of measures—I think that was the right decision—we are, after looking at the evidence on a case-by-case basis, making the proper decision to opt in to the measures that we are debating today. On that basis, I am happy to support my right hon. Friends on the Front Bench.