Presumption of Innocence and EU Law

Shailesh Vara Excerpts

Monday 10th February 2014 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara)]

I beg to move,

That this House considers that the Draft Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (European Union Document No. 17621/13 and Addenda 1 to 3) does not comply with the principle of subsidiarity, for the reasons set out in the annex to Chapter One of the Thirty-second Report of the European Scrutiny Committee (HC 83-xxix); and, in accordance with Article 6 of Protocol (No. 2) annexed to the EU Treaties on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.

Tonight’s debate is about this House having its say on proposals from the European Commission that touch on matters at the very heart of our country’s justice system. The House has the opportunity to endorse the House of Commons European Scrutiny Committee’s reasoned opinion that the European Commission’s proposal on the presumption of innocence breaches the principle of subsidiarity.

I want to be clear from the outset that this is a matter for the House and it is not the Government’s decision. The treaties give this House, and all national chambers, the right to issue reasoned opinions on the principle of subsidiarity, and that is what this debate is about: the question of subsidiarity. It is not about the question of the UK’s opt-in. I am happy to assure Members that the Government have offered time to debate the opt-in separately, ahead of the Government’s final decision. We look forward to hearing the Committee’s view on that in order to inform that decision.

The House will appreciate that questions of subsidiarity are finely balanced and we welcome the opportunity for this House to present its view directly to the European Union—a right this Government will defend and facilitate to the hilt. The idea of subsidiarity is that decision making should take place as closely as possible to the citizens whom those decisions affect. Under article 5 of protocol 2 to the treaties, the Commission needs to set out, among other things, a detailed statement on how its proposal complies with the principle of subsidiarity. The reasons for concluding that the objective of the proposal can be achieved at EU level must be substantiated by qualitative and, where possible, quantitative indicators. To underline the importance of this, the treaties provide that national Parliaments—and chambers within national Parliaments—can deliver reasoned opinions to the Presidents of the EU institutions where they consider that the Commission has breached the subsidiarity principle.

The proposal the Commission has put before us relates to the presumption of innocence, a fundamental principle of our country’s justice system, as it is of many other countries’ justice systems. No one in this House would seriously doubt our commitment to the principle. It stretches back as far as Roman times and is a central pillar of our common law system, as well as the common law systems in other countries. Moreover, it has been enshrined and developed in many civil law systems on the continent itself.

The principle is set out in the universal declaration of human rights and in the European convention on human rights. It is contained in the French declaration of the rights of man, and countless other constitutions around the globe. The problem, and the issue for debate tonight, is specifically whether EU action in this area can be justified or whether this is a matter for member states.

The Commission bases its argument for the proposal on the fact that member states are being effectively barred from co-operating in criminal matters because of differing standards in this area. Here I can only endorse the view set out in the European Scrutiny Committee’s report that the case simply has not been made. The Commission itself admits that evidence is scanty. It may be true that specific rules vary, and that specific practices and laws will not be identical across our different jurisdictions. Indeed, it is worth noting in passing that specific rules vary even across the United Kingdom, but that has, to my knowledge, never acted as a barrier to the co-operation of our justice systems.

We should remember that all member states are bound by the European convention. All member states should be meeting those basic standards already. As the Committee points out in the draft reasoned opinion, if there are cultural issues at play in a country’s justice system, a further piece of legislation from the EU will not resolve them.

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

The point that I am about to make will not necessarily appeal to all the Minister’s colleagues. Would it not be rather unsatisfactory if we found ourselves in a situation in which the right to a fair trial was justiciable in the European Court of Justice, rather than being dealt with in the European Court of Human Rights and by the application of the European convention on human rights in UK domestic law, which are the ways in which we have long agreed that such matters should be resolved?

[Mr Vara]

As always, my right hon. Friend makes a relevant point. For the purposes of today’s debate, however, I shall confine myself to the presumption of innocence. I am mindful that we have only 90 minutes for our debate, and many hon. Members wish to speak, including the hon. Member for Hammersmith (Mr Slaughter), who I am sure will want to have a decent say in the matter, in his own way.

Mutual trust and recognition are of course important in ensuring that European justice systems can operate together when crimes span borders, but without solid evidence, that mutual trust is in practice being adversely affected by these national differences. The Commission’s case for action has not been made. There is also a much broader issue at stake. As I said, this matter lies at the very heart of our justice systems as sovereign countries.

The presumption of innocence is at the core of the rights and protections we afford in our laws and traditions, and in our constitutions, to those accused of committing a crime. That instinctively feels like a matter on which member states themselves should be making decisions. In so far as we can conclude that minimum standards are a legitimate aim—as it seems the Commission has done here—action needs to be taken at EU level, but under the terms of the treaties that permit the setting of minimum standards across the EU, we need to be wary of the Commission bringing forward totally unnecessary proposals under the umbrella of securing mutual trust and recognition. It will always claim to have passed the subsidiarity test, even when others have their doubts.

The process from here is that the reasoned opinion, if approved by the House, will be presented to the Presidents of the Commission, the Council and the European Parliament. If sufficient numbers of other Parliaments do likewise, the Commission will be presented with its yellow card and must rethink the proposal.

[Mr William Cash (Stone) (Con)]

Given the great significance that my hon. Friend has rightly given to the contents of our report and to the substance of this issue, is he concerned that, as far as we know, the only other Parliament in the whole of the European Union to have tabled a reasoned opinion at this time is the Scottish Parliament?

[Mr Vara]

As always, my hon. Friend shows his great knowledge of this area, right up to the minute. He will appreciate that I can speak only for this Parliament, but I hear what he says. I am aware that my officials have been speaking to other Parliaments, but I do not know the position as regards those other member states at this time. He is quite right to suggest that, as far as justice and home affairs issues are concerned, a quarter of all member states need to have tabled a reasoned opinion in order for a yellow card to apply. In other matters, it is a third of all member states. On that note, it is worth noting that the Government wholeheartedly support the role of national Parliaments in supporting this reasoned opinion.

The Commission’s track record in this respect is not a good one. When presented with its first yellow card on the Monti II proposal, relating to the posting of workers and the right to take collective action, the Commission withdrew the proposal. However, it claimed that that had nothing to do with subsidiarity and that there was not the political will to pass the measure. More worrying was the occasion on which this House, the other place and 10 other Parliaments of EU member states issued a yellow card in respect of the proposal for a European public prosecutor’s office. The Commission barely flinched before continuing with its plans.

[Julian Smith (Skipton and Ripon) (Con)]

Does the story that the Minister has just told make him feel that, given the new landscape of the EU, we need to adopt a red card system?

[Mr Vara]

We need to consider a lot of things in terms of our future relationship and, as my hon. Friend will be aware, the Prime Minister has promised a major undertaking on reforming the way forward. It will be for the public to decide, in due course, whether there is a Conservative Government, with a referendum to follow on from that.

[Mr Cash]

On the red card, does my hon. Friend accept that, in line with the fourth principle of the Bloomberg speech, which is that national Parliaments are the root of our democracy, there are circumstances in the national interest where a mere collection—an aggregation; a small number—of countries coming together on a red card would not be enough and that, in line with precedents, it would be advisable for the United Kingdom Government to accept the idea of the disapplication of laws altogether?

[Mr Vara]

My hon. Friend, as always, makes a relevant and pertinent point, but he will appreciate that I am not going to give a definitive answer either way at the Dispatch Box.

Notwithstanding the difficulties, we must try to make our position known to the Commission. The Government will support this House and the other place in presenting reasoned opinions on subsidiarity, as and when they choose to do so. On the basis of what the Government have considered so far, we do not believe that the case for action has been made. However, as I said, this is a matter for the House to decide on, and I very much look forward to hearing what colleagues have to say.

--- Later in debate ---

[Mr Vara]

I am grateful to the Members who have contributed to this debate. It is good to see that there is agreement, because often there is not on this subject.

I made it clear at the outset that this was a matter for the House and that the Government were facilitating its consideration. Members have said loudly and clearly that they support the reasoned opinion of the European Scrutiny Committee and its submission to the European Union institutions.

I will address some of the points that have been raised by Members. When the hon. Member for Hammersmith (Mr Slaughter) spoke, he had no support from the Opposition Benches. However, he has a reputation for more than making up for that through his use of words. He did that today, as he always does. I thank my hon. Friends the Members for Stone (Mr Cash), for Aldridge-Brownhills (Sir Richard Shepherd) and for Bury North (Mr Nuttall) for their contributions.

I want to respond to the point that was made about the explanatory memorandums that were submitted. Five instruments were received at the outset, which was a lot of information. We tried to supply the House with as much information as possible within the time constraints that were on us. We provided the explanatory memorandums and there was criticism of them. Letters were passed between the European Scrutiny Committee and the Department. We subsequently provided further information. The Justice Secretary has apologised for the delay and given an assurance that we will try to provide more full and more timely responses in future. I have no hesitation in reiterating that apology.

The red card system is difficult to use in practice because Parliament cannot simply rid the UK of its obligations. Under the European Communities Act 1972, as the law stands we cannot pick and choose which EU law to implement beyond the terms of our opt-in for justice and home affairs matters.

[Jacob Rees-Mogg]

Is it not open to the House to amend the 1972 Act?

[Mr Vara]

Given the Prime Minister’s assurance that we will try to renegotiate a whole series of measures, I think the best way forward is to have that engagement with the European Union, get a series of proposals, and then go to the country for people to have the final say. The 1972 Act has existed for a long time, and there is not long to go from now.

[Mr Cash]

I am bound to point out that the 1972 Act was passed in pursuance of the 1971 White Paper. The 1972 Act itself has not changed materially, but the number of functions and the invasion of the United Kingdom legislature has continued inexorably since then. That 1971 White Paper specifically guaranteed—and therefore that guarantee would seem still to be valid—that we would never give up the veto because it was in our vital national interest. To do otherwise would endanger the fabric of the European Union, which appears to be doing a very good job of destroying itself.

[Mr Vara]

My hon. Friend makes a good point, but I repeat that there is not long to go. If there is a Conservative victory, we will renegotiate, and the issues that he raises, as well as a whole series of other issues, will be put to the country.

My hon. Friend the Member for Aldridge-Brownhills talked about the European Union trespassing into matters that have been so important to our judicial system over centuries, and I could not agree with him more. As always, he was passionate about what he said, and almost—no, not almost, I think everyone in this Chamber is in agreement about the presumption of innocence, which has existed since Roman times. The case for the directive simply has not been made by the Commission.

My hon. Friend the Member for Bury North also mentioned the tight deadline of 12 March. I am reliably informed that the date that is important is the date when the reasoned opinion is actually sent, so if it is approved today and sent immediately, it will be valid and we will have met the deadline. He also mentioned the opt-in. He said that he was not present at the start of my speech and it may be that he missed my comments, but the Government have promised a debate on that specific issue in due course.

[Mr Nuttall]

I am grateful for that confirmation but I wonder whether the Minister misspoke. He said 12 March. Did he mean 12 March or 12 February?

[Mr Vara]

I did indeed mean 12 February and my hon. Friend is right to pick me up on that.

This is an opportunity for the House to make it clear to the Commission that it should listen to the views of national Parliaments. I can only repeat the wish that the European Commission listen carefully to and treat with respect the concerns of this House and any other national Chambers that express a view on this important subject. That is required by the treaties, it is political good sense, and it would be an important demonstration that the Commission is indeed listening to the views of elected representatives and member states.

Question put and agreed to.

Resolved,

That this House considers that the Draft Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (European Union Document No. 17621/13 and Addenda 1 to 3) does not comply with the principle of subsidiarity, for the reasons set out in the annex to Chapter One of the Thirty-second Report of the European Scrutiny Committee (HC 83-xxix); and, in accordance with Article 6 of Protocol (No. 2) annexed to the EU Treaties on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.