EU Criminal Policy

William Cash Excerpts

Wednesday 25th January 2012 Commons Chamber

[Mr Blunt]

I am grateful to the Chairman of the Home Affairs Committee, and of course the answer is yes. Our position on human trafficking and child sex crimes has been to have opt-in, so I can confirm his point.

It appears that in anticipation of the developments under the Lisbon treaty that I have described, the European Commission is seeking to develop some principles to be taken into consideration when the criminal law is used. The Government’s position is that we will approach legislative proposals on justice and home affairs on a case-by-case basis, with a view to maximising the country’s security and protecting civil liberties and the integrity of the criminal justice system. There is nothing in the document that we are debating, which is only a communication, that changes or challenges that fundamental position.

As the House may recall, some time before the Commission communication, in 2009, the European Council agreed conclusions on model provisions to guide its criminal law deliberations. The conclusions were adopted to prevent incoherent and inconsistent criminal provisions in EU legislation, and in anticipation of the changes that the Lisbon treaty would bring.

A number of the Council’s conclusions relating to the assessment of need for criminal law are satisfactorily reflected in the Commission’s communication, most notably the principle that the criminal law be used as a last resort. The adoption of legislation in accordance with the principles of subsidiarity and proportionality is referenced, as is the need to establish necessity.

There are some things that we welcome in the detail of the communication. For example, it acknowledges the UK’s opt-in rights and clearly states that the diversity of member states’ criminal law must be respected. The use of criminal law only when it is a necessary and proportionate response to combating particular conduct is an approach that we apply in our domestic criminal legislation. We are therefore glad that the Commission’s and the Council’s statements reflect those principles.

However, there are potential concerns. The Government believe that it is essential that the Commission propose only European criminal legislation that is necessary and proportionate. Ineffective implementation of a European Union policy should not, in itself, trigger consideration of the use of criminal law.

[Mr William Cash (Stone) (Con)]

Bearing in mind that much of what we are considering will be governed in due course by qualified majority vote, any insistence in this House will be subject to the vagaries of that system.

[Mr Blunt]

Of course, what we are considering is guided by the opt-in principles in the Lisbon treaty under the relevant protocol. The emergency brake, as a final reserve position, then underwrites everything. For example, if we opted in to something at the beginning of negotiations, found ourselves outvoted by a qualified majority vote and the Government then came to a view that what had emerged was unacceptable, the emergency brake would remain available to us to prevent that criminal legislation from applying to us.

--- Later in debate ---

[Mr William Cash (Stone) (Con)]

We have just heard a breathtaking example of complacency from the Government—sorry, I mean the Opposition. I say that because, unfortunately, the manner in which this issue is being approached, and the reason why the European Scrutiny Committee thought this matter should be debated, is very simple. We have heard reservations expressed so far by the Minister and shadow Minister, but they do not take express account of the fact that once a communication has got going—particularly a communication under the aegis of the Lisbon treaty—we effectively open the door to considerable, radical proposals for the expansion of European criminal law.

I am glad the Minister made the comments he made and I endorse all of them. I am also glad he agrees with the Committee on a wide range of matters, particularly the nomenclature and the phrase “Euro-crimes”. However, this is a substantial issue. The document that was presented to us by the Commission concludes that

“the new legal framework introduced by the Lisbon treaty … considerably enhances the possibility to progress with the development of a coherent EU Criminal Policy which is based on considerations both of effective enforcement and”—

it claims—

“a solid protection of fundamental rights. This communication represents a first step in the Commission’s efforts to put in place a coherent and consistent EU Criminal Policy by setting out how the EU should use criminal law to ensure the effective implementation of EU policies.”

It could be no clearer than that. That is the intention, and believe me, it is the direction and the line of route.

Other hon. Members will no doubt deal with other matters arising from that, but as Chairman of the European Scrutiny Committee, I want to explain why we insisted that this matter should be debated. The Committee recommended the document for one simple reason: the communication outlines how a supranational organisation intends to pass criminal legislation that will have a direct impact on our citizens. This is indeed a sensitive area, as the enactment of criminal law is traditionally the domain of sovereign legislatures.

In the conclusion to our report, we noted the emphasis in the communication that the Commission places on respecting the general principles of subsidiarity, necessity based on clear evidence, proportionality, including the principle of ultima ratio—in other words, criminal law as a means of last resort—and the legal traditions of the EU member states when deciding whether to propose criminal sanctions to ensure the effective implementation of EU proposals. Those words are welcome, but we wait to see whether they are respected. Evidence to the contrary is abundant in relation to matters of this kind. That is because the manner in which it is proposed to move down the route of criminal law—albeit under the Lisbon treaty, which my party opposed tooth and nail during its enactment—relies heavily on the fact that there is a desire among many people in the European Union to have one country, which, by its very nature, means they would prefer to have one European criminal law policy. There is therefore a direct contradiction between the manner in which the proposals are being made and the words used. We argue that we should wait to see whether the suggestions that lie behind the Commission’s statements are respected.

We are gratified by the Government’s reaffirmation that any EU action in the field of criminal law will have to be justified on the basis of robust evidence, as well as demonstrating why lesser administrative penalties are not appropriate. The Committee intends to hold the establishment to strict account on that question. We also support the Government’s cautious approach to the Commission’s communication, but we add further caveats of our own. The European Union should not seek to harmonise the traditional rules on extraterritorial criminal jurisdiction in member states. The UK does not assert extraterritorial jurisdiction over those who are “habitually resident”—an expression that has found its way into EU criminal legislation—in this country. The EU should also refrain from defining “mitigating and aggravating circumstances” for the commission of crimes, which is best left to the discretion of the sentencing judge. Furthermore, the expression “Euro-crimes”, which is used in the communication for the 10 offences listed under article 83.1 of the treaty, is inappropriate and misleading. We ask the Government to do their utmost—in fact, we would go so far as to insist that they do this—to ensure that the term does not enter the EU’s lexicon. Indeed, I was extremely glad to hear what the Minister had to say about that.

The other point is that although there is the question of opt-ins and whether we are to accept the provisions, we have seen a torrent of opt-ins over the last few months, since this coalition Government came to power, and a significant number of Members of Parliament are deeply concerned about the tendency in that direction. Furthermore, in addition to the opt-ins, there is the emergency brake. We understand all that, but we have to have regard to that tendency, because of what can happen once the door is opened on that scale. In the light of what I said about what is in the mind of the Commission and others in the European Union, and about the tendency to move towards a policy of further integration, which would include criminal law, we should be not merely cautious, but extremely resistant towards any attempt to move further down that route.

[Sir Alan Beith]

When I was chairing the Justice Committee, I do not remember ever meeting anybody, in any justice committee in any member state, who believed that we should be working towards a single, harmonised criminal law that would replace the criminal law of member states across Europe. Is the hon. Gentleman not conjuring up a spectre?

[Mr Cash]

Certainly not. I am not conjuring up a spectre; I am talking about a tendency. In almost every area, the original proposals—from Maastricht, through to Nice, Amsterdam and Lisbon—have adopted a minimalist approach at the beginning, but then expanded, moving further and deeper into the areas of competence that have been acquired. I am not going to dispute what the right hon. Gentleman says about what he has heard; I am merely referring to what I have observed, which is also understood by many others, including the Government.

[Jacob Rees-Mogg (North East Somerset) (Con)]

The ambition of the European Commission is set out on page 18 of the documents. Its ambition is not a limited extension of criminal policy; it is to have

“an important tool to better fight crime”—

that is, any crime. It is not limited.

[Mr Cash]

I entirely agree. Furthermore, article 83.1 sets out the following areas of crime:

“terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.”

It continues:

“On the basis of developments in crime”—

the broader remit under which such an extension is proposed—

“the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph.”

Although article 83.1 says that the Council

“shall act unanimously after obtaining the consent of the European Parliament,”

we are talking about a process of opening up and extending those areas of domestic control over criminal jurisdiction that are likely to be transferred to the European domain.

On a final note—and to reply to the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the Chairman of the Liaison Committee—the Committee noted that the third sentence of the communication states:

“An EU Criminal Policy should have an overall goal to foster citizens’ confidence in the fact that they live in a Europe of freedom, security and justice”.

I ask the Minister to say whether he agrees with that statement. For our part, we in the Committee think it an example of dangerously ideological thinking. We are concerned that such thinking may inform future proposals from the Commission. Citizens look to their Governments to provide freedom, security and justice in their own states. To expect freedom, security and justice to flow in 27 European states under the auspices of supranational institutions may sound laudable, but in reality it is both implausible and unwarranted. We think that the Commission would have done itself a service by cutting out such a statement from a policy paper of such importance and limiting its ambitions to more practical objectives.

--- Later in debate ---

[Keith Vaz]

I agree with both of them, because they were each making different points. We must be fair to the Chair of the Justice Committee, who is also the Chair of the Liaison Committee, because he was disputing a point of debate, not a point of fact, as to whether he had met any chair of a justice committee in any other European country who agreed with the view of the hon. Member for Stone view that one criminal law was being sought for the whole of the European Union. I have attended quite a few meetings in the European Union, and I have certainly never heard anyone say that they wanted one criminal law for the whole EU.

[Mr Cash]

I acknowledge the role of Solomon that the Chairman of the Home Affairs Select Committee is adopting, but I must point out that I was quoting from the Commission’s own document, which I think makes my case.

[Keith Vaz]

That clarification is helpful, but as the commissioners are not here to defend themselves, I shall try to move the debate on.

The hon. Gentleman mentioned certain crimes that are of course not Euro-crimes: terrorism, trafficking in human beings, illicit drug trafficking, money laundering, corruption and computer crime. They go beyond the borders of the European Union, but it is important that we work with our European partners to try to combat those problems. There are times when we need to act quickly—in relation to the trafficking of human beings, for example. Our last report pointed out that at least 100,000 people were being trafficked around the European Union each year, including 5,000 in the United Kingdom, and that there did not appear to be a common European Union strategy to deal with that. We do not need a new criminal law that covers all the EU countries to deal with it; we need to ensure that our structures—Europol, Interpol and others—are able to service the needs of our criminal law. We should be able to prosecute those involved in human trafficking quite happily, without having regard to what is being said in other countries. Similarly, when Turkey eventually joins the European Union, it will have to deal with the problem of illegal drug trafficking. Almost 80% of the heroin that comes into Europe comes from Afghanistan via Turkey.

We can talk about co-operation, but we need to be very careful when we talk about extending criminal law. Our systems are completely different, and I do not think that anyone in the House would accept a proposition to harmonise our criminal justice systems. We should, however, proceed in the direction of co-operation.

I hope that the Minister will also examine the question of data. People can arrive in this country and undergo checks that do not reveal that they have committed criminal offences elsewhere in the EU. Dealing with that does not require legislation; it requires ministerial co-operation and co-operation between EU countries. So if someone who had committed a criminal offence in Poland, for example, came here and was involved in activities that required that information to be made available, that disclosure should be possible. Equally, that should also apply if someone who had committed an offence here went to another part of the EU.

I welcome the Government’s approach, but I urge the Minister to be cautious, because any extension would cause us great problems. However, it is important to push forward the co-operation that exists at EU level on the entire justice and home affairs agenda.

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

I support the motion, and I shall preface my remarks by saying that any free trade area needs an enforceable and effective system to secure compliance with the requirements put in place to create and maintain an open market. Europe also needs to keep pace with the international, cross-border nature of a great deal of crime, and with the ease of movement that criminals enjoy. Indeed, in combating crime, Europe should take advantage of its capacity for co-operation and combined effort in order to defeat criminals and criminal organisations. All our citizens, whatever their views on the European Union, would recognise the value of that.

We cannot ignore enforcement failures in various member countries, because they often harm the interests of British businesses, which can be put at a competitive disadvantage. British farmers and fishermen can also be adversely affected by inadequate enforcement in other countries. Obviously, the converse can also be true. It is usually unhelpful, however, to add new structures and layers of law, of the administration of justice and of prosecution authorities to the well-developed national systems that exist in most member countries. I therefore agree with the motion when it mentions subsidiarity and the need for robust evidence of necessity when EU measures are to be considered.

I do not entirely share the European Scrutiny Committee’s dislike of the idea of fostering citizens’ confidence in the fact that they live in a Europe of “freedom, security and justice”. It is an important feature of the European Union that membership of it commits member states to maintaining a range of important values including freedom, justice, security and human rights. The Committee calls this an example of ideological thinking. I thought that ideological thinking was making a comeback in the Conservative party, but perhaps it is still disapproved of. I remember that during my earlier political life ideology was frowned on by the Conservatives, but then Mrs Thatcher came along with an ideology of her own. That is a byway that I shall stray no further along, however. The principal responsibility for achieving these aims rests with the member states of the European Union.

The Minister said that we were about to embark on a complex opt-out—or opt-in—process, which is relevant to what we are discussing today. Under the Lisbon treaty, the Government could opt out of everything in the home affairs and justice area. They could also opt in to everything. The more likely outcome, however, is that they will seek a negotiated package, in which we opt in to those areas where it is genuinely beneficial for us to do so without complicating our system by opting in to areas that would be inappropriate for us. I hope that the Government will share with us their developed thinking on how that will be achieved, as a great deal of negotiation will be involved.

The Commissioners tend to proceed by launching a large number of proposals; they fire off a hail of bullets, very few of which reach their target. If the Select Committees of this House were to devote time and attention to every idea that appeared in a Commission paper, we simply would not be able to get on with our work on domestic policy issues. It is therefore important for Select Committees to be able to identify those elements that would benefit from careful Select Committee attention. This is true of home affairs and justice matters, and of others.

The European Scrutiny Committee carries out an important role. It does the valuable and not always very inviting work of examining the legality and proportionality of EU proposals. However, it is the Select Committees that relate to Departments that have experience and expertise in specific policy areas. It would be unreasonable to expect the European Scrutiny Committee to know enough in any given case about whether there was a necessity justification for something and whether it was a policy direction that would be appropriate in the United Kingdom. That is the kind of work that Select Committees are expected to do.

[Mr Cash]

I understand that there is obviously a complementarity between the European Scrutiny Committee and departmental Select Committees. It is important, however, to reaffirm the fact that we rarely recommend a communication for debate, but on this occasion, because of the nature and coherence of the proposals advocated by the Commission on criminal policy, we thought it was a good idea at least to give it a kick-start on the Floor of the House.

[Sir Alan Beith]

I entirely agree with the hon. Gentleman and with the action he has taken on this matter, and I very much welcome the fact that the debate is taking place. It is certainly the view of the Liaison Committee that more attention needs to be given to developing European proposals that will, if we are not careful, only come to the House at too late a stage for us to have any significant influence on them. The work of the European Scrutiny Committee in all that is extremely valuable, but there are limits to what it can do.

In conclusion, let me remind Ministers of two things. First, we want to secure as much help as we can get for Select Committees from the UKRep staff in Brussels, who are extremely good when we go as visiting Committees in giving us advice on what is happening, what is being proposed and which of the Commission’s brainwaves is getting somewhere and which does not look likely to do so.