Child Protection
William Cash Excerpts(11 years, 2 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Meg Munn (Sheffield, Heeley) (Lab/Co-op)
I am grateful to the Backbench Business Committee for granting a debate on this important issue. In my speech, I shall concentrate on the issue of sexual abuse of children in religious institutions. I have met survivors of abuse and their advocates on a number of occasions. They endured terrible suffering, and they seek justice. They have called for an independent commission of inquiry into the sexual abuse of children by clergy in religious institutions, not just in schools.
A public inquiry or similar process would undoubtedly bring the systematic abuse of children into the open, and would outline the lessons of their experiences. An inquiry would highlight the betrayal and abuse of trust by religious institutions—institutions that are meant to look after the spiritual and moral welfare of children. Time and again, children and vulnerable adults were betrayed by those whom they trusted. Even today, victims struggle to be heard. Known abusers are defended by senior clergy. Some parents prefer to believe the priest rather than their own child. There are cover-ups, witnesses are fearful of coming forward, and members of some faiths are reluctant to go to the authorities because they do not belong to the same faith.
I have looked into the issue in my capacity as chair of the all-party parliamentary group on child protection, and have concluded that, while it is essential for us to find some way of ensuring that victims are heard and believed, a public inquiry may not be the best way of ensuring that we do what we need to do to protect children today. I support other Members’ call for an overall inquiry, and indeed I have written to Ministers about the issue, but now we can do better. The Government can show that they are listening and understanding by addressing current failings.
Reasons for sexual abuse are found not in the teachings of any faith or religion, but in individuals who take advantage of the power, position, trust and authority vested in them by an institution. There is evidence that faith leaders are taking some steps to ensure that cases are not covered up, and that they are establishing robust safeguarding policies that includes support for victims. There have been changes in the way in which the Catholic Church and the Church of England deal with sex abuse cases, especially following the Nolan report and the more recent Butler-Sloss review. The Bradford Council for Mosques and the Bradford safeguarding children board have worked together to produce a paper entitled “Children do matter”. The Methodist Church has a safeguarding policy, and has issued a joint statement with the Church of England on guiding principles. The Methodists are undertaking a systematic review of sexual abuse cases dating back to 1950, in order to establish exactly what happened and what the response was. That is an excellent move, which I would like other faiths to emulate. Lessons can be learnt, and our children can be better protected.
However, there is also evidence of continuing denial. Recent reports have suggested that a year ago, Cardinal Keith O’Brien blocked a similar review of abuse in the Catholic Church in Scotland. We need to look at the behaviour of faith institutions, and to ask whether the proposals for change are sufficient and the pace of change fast and widespread enough. We need to understand that part of the abuse by people who represent faiths stems from the fact that we expect more of them when they are looking after our children. This is not just the abuse of trust that we see elsewhere; it is a fundamental betrayal of the beliefs held by members of those faiths.
Organisations, including religious organisations, can and must do all that they can to protect children, deter paedophiles, and ensure that perpetrators are stopped and face justice. They must change a culture that minimises both the prevalence of abuse of children and its effects. I was disturbed to discover from the internet that an organisation called Catholic Voices, which seeks to portray the Catholic Church positively in the media, is minimising the issue of abuse by Catholic priests. Its argument is that it is much more prevalent in society in general than it is in the Church. Does it not understand that organisations which are in regular contact with children must ensure that those who work with children in their name are their responsibility? Those are astonishing statements from a religious organisation that should be doing all it can to prevent abuse. Contrition and action are what is needed, not denial and deflection.
It is not just the Catholic Church that needs to do more. The Church of England has only just apologised for the scandal of the abuse that took place in Chichester, and there are worrying reports from other faiths. A new book by a Muslim woman describes abuse that she suffered at the hands of her imam, and there has been a Channel 4 documentary about alleged cover-ups by rabbis in some Jewish communities. However, this is not just the responsibility of religious organisations. We must ask whether the law and the guidance are sufficient to protect children in religious institutions today. Are we being complacent, and therefore complicit, when we say, as the children’s Minister said in a letter to me,
“we encourage organisations to continue to improve their practices to ensure that today’s children are kept as safe as possible”?
The duties of all schools to safeguard and promote the welfare of children are made clear in the Education Act 2002, which—along with additional guidance—places a statutory duty on all schools to safeguard and promote the welfare of children, and states that all schools should have a child protection policy and child protection procedures in place. The re-launched guidance entitled “Working together to safeguard children” states that safeguarding is everyone’s responsibility, which is welcome. Safeguarding is clearly the responsibility of everyone, particularly those who work with children. However, the list in paragraph 8 of the introduction makes no specific mention of anyone who holds religious office. The only mention of faith organisations appears at the end of chapter 2, which deals with organisational responsibilities. Faith institutions must be in the mainstream throughout documents on safeguarding.
Two other documents, “Safeguarding children and safer recruitment in education” and “Dealing with Allegations of Abuse against Teachers and other Staff”, specify a duty to report abuse that is proven, but the institution concerned can make a judgment on whether there is not a case. Clearly judgments must be made, but we also need to have better oversight of the systems in schools and a mechanism to check that cases are being reported appropriately.
Mr William Cash (Stone) (Con)
Given the tragedies that have occurred in the Catholic environment, I hope the hon. Lady has not overlooked the fact that the hierarchy of England and Wales, through the Archbishop of Westminster in particular, has set up a safeguard arrangement, which is being followed through effectively.
Meg Munn
What I am saying is that it is the role of organisations to do precisely that, but I am coming on to question whether faith organisations are taking that seriously. When an organisation within the Catholic Church puts on a website the other side of the coin on abuse and talks about minimising it, surely we can expect our faith organisations to say, “Not in my Church, not by my priests,” and to do everything they can to ensure that, rather than saying, “Well, it’s not as bad as it is elsewhere.” That is not an acceptable attitude and speaks of denial and deflection. That is what I am saying.
I know that the Department says that it does not specify in relation to faith schools because they can be of different types, but I worry that this is not clearly understood by those who run faith organisations. The make-up of local safeguarding children boards as set out in section 13 of the Children Act makes no mention of religious organisations and “Working Together” is silent on the issue. The Tackling Child Sexual Exploitation action plan contains no specific action to work with religious institutions to address the issue. We treat religious institutions differently when we do not name them.
I believe there is more we need to do. The children’s Minister in correspondence with me has said he believes that mandatory reporting—the issue raised by my hon. Friend the Member for Coventry North West (Mr Robinson) —is already in place. He states that any organisation must refer cases to the Disclosure and Barring Service and failure to do so is a criminal offence, but this relates only to issues about staff. Is it really clear, particularly for religious organisations and voluntary organisations, that they must report suspected instances of abuse to the relevant agencies?
Some countries have mandatory reporting, and I know that that is not the answer to all the problems, but I understand that those campaigning for mandatory reporting are outraged, as we all should be, that a perceived gap in legislation means that a more senior member of a religious organisation believes that it is all right to move the person on, or ignores concerns, or makes up their mind to deal with the matter in house. This is not acceptable.
Child abuse is the scandal that we must tackle. I fear that the Department for Education is complacent and must urgently review law and guidance to ensure that it is an explicit requirement on religious organisations. Specific reference to all religious and faith institutions and their duty to safeguard children and vulnerable adults must be made in all appropriate legislation and guidance to leave no room for ambiguity. We cannot be reluctant to deal with the problem for fear of accusations of discrimination and prejudice. We owe it to children to take action.
European Union (Approvals) Bill [Lords]
William Cash Excerpts(11 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr William Cash (Stone) (Con)
I first want to refer, in the context of the Bill, to the referendum announced by the Prime Minister. We have heard much about the 2011 Act. I opposed it during many of its stages, because I believed that although it had a so-called referendum lock, in practice it would not deal with the kinds of things we are now besieged with, particularly those measures that are being introduced into the political core of Europe—the eurozone—that affect the United Kingdom but that, because they do not refer to the United Kingdom, do not require a referendum, however significant their impact on the United Kingdom. In fact, the European Scrutiny Committee, which I have the honour to chair, produced a report on that very question and we remain extremely concerned about the effect of allowing legislation to go through without a referendum on the specious grounds that a transfer of powers is not taking place. This is not just about a transfer of powers; a referendum is required when there is a fundamental change.
Interestingly, the referendum announced by the Prime Minister, which I think should take place during this Parliament, is a very good example—indeed, it is a perfect example—of something that does not fall under the 2011 Act. However, it is the opinion of the Prime Minister—it is certainly my opinion and that of many hon. Members present—that the proposals that are about to be announced, or that he thinks are likely to be announced, as well as what has already been transferred, the structure of the treaties and the impact of the provisions, past and present, on the United Kingdom, should be subject to a referendum, because of the unfortunate, aggregate effect that they continue to have on the United Kingdom.
Emma Reynolds (Wolverhampton North East) (Lab)
The hon. Gentleman is extremely kind, as ever, in giving way. Would he like a referendum on the Bill under discussion?
Mr Cash
I did not say that. What I said was that the referendum that the Prime Minister has announced goes outside the provisions of the 2011 Act, and I am glad to say that that demonstrates that, where there is fundamental change, he recognises—with some help from his friends— that a referendum is a requirement, even though it is not taking place as early as some of us would like.
Chris Heaton-Harris
He is not yet a right hon. Gentleman, but he might be soon. I thank him for giving way. Does he recognise that, while the 2011 Act was designed to stop powers being sucked away from the UK at the request of the European Union but without much say from this place, the Prime Minister’s referendum is about a new settlement that may require powers to be returned from the EU, so they are slightly different things?
Mr Cash
That is true, but I maintain that the key question is whether the requirements contained in the five principles, which include repatriation and the primacy of national Parliaments—on which the European Scrutiny Committee has insisted on a three-hour debate on the Floor of the House because of the implications for economic governance—are all part and parcel of what has been going wrong in the European Union. I welcome the idea of the referendum, but with the caveat that I do not think the timing is right, although that is a separate question.
Turning to article 352 of the treaty for the functioning of the European Union, my hon. Friend made an excellent speech, as did my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) and the hon. Member for Luton North (Kelvin Hopkins). They are all on the European Scrutiny Committee and very familiar with the intricacies of the arguments, although they are not that intricate. In fact, the provisions of article 352 derive, in effect, from article 308. I have now served on the ESC for 27 years, and those who have been around for as long as I have—
Mr Cash
Not long enough, says my hon. Friend. The fact is that article 308 is and always has been a very contentious issue. It is reflected in provisions in our own domestic law that deal with whether or not, when something is enacted, anything that flows from it can be done without the need for further primary legislation. It so happens that article 352 of the treaty on the functioning of the European Union has similar words:
“If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously…after obtaining the consent of the European Parliament, shall adopt the appropriate measures.”
That means that there is already a big amber light in relation to the acquisition of these further powers, although there is no legal base for them.
That is, in a nutshell, the reason for the Bill. Sections 7 and 8 of the 2011 Act do not apply to the two draft decisions that were made under article 352. An Act of Parliament is therefore required. That is a safeguard. My hon. Friend the Member for North East Somerset is right that it is important that we have an Act of Parliament, despite what the hon. Member for Cheltenham (Martin Horwood) said, not because of the nature of the provision in question, but because the 2011 Act, which the hon. Member for Cheltenham was so keen to endorse, did not provide for circumstances of this kind.
Martin Horwood
I am tempted to ask the hon. Gentleman to comment on the extraordinary assertion of the hon. Member for Daventry (Chris Heaton-Harris) that we do not discuss these matters in enough detail in this place. However, what I want to say to him is that I think he may have misquoted me. I did not say that we should not have legislation on these matters. I supported the European Union Act 2011 in that regard. I just suggested that we do not need primary legislation in every case.
Mr Cash
I do not want to be drawn too far down that route, but the simple reason for primary legislation is that, without it, there would not be adequate legislative authority, even for the questions that arise under this Bill.
I shall now turn to one or two issues relating to the Bill that required a considerable amount of consideration by the European Scrutiny Committee. I will give a tiny bit of history on the multi-annual framework for the European Union Agency for Fundamental Rights, but I will try to be as brief as possible. The Justice Minister, Lord McNally, stated in an explanatory memorandum that was issued to the House and the European Scrutiny Committee in January 2012 that he thought that the proposal was justified. He said that the Government would have opposed the proposal to extend the multi-annual framework, but wanted to consider whether the technical issues that they disliked had been addressed.
The European Scrutiny Committee reported on the proposal on 1 February 2012. We asked the Government whether they accepted the view of the European Commission that
“with the entry into force of the Lisbon Treaty, the Agency’s remit automatically extends, in principle, to all areas of EU competence under the TFEU, and that the Agency may therefore undertake activities within the field of police and judicial cooperation in criminal matters without any further amendment to its founding Regulation”.
We questioned the Government’s view that this decision satisfied the exemption requirements under section 8(6)(a) of the 2011 Act and would not require an Act of Parliament. Our 10th report, which was published on 17 July 2012, set out our concerns in greater detail. The draft decision remained under scrutiny.
The former Lord Chancellor, who is now the Minister without Portfolio, told the European Scrutiny Committee in July 2012 that a political agreement had been reached on the draft decision which excluded any new activity covering EU policing and criminal law measures. In a letter that he sent on 22 November, he told the European Scrutiny Committee that, having heard what we had said, the Government were now—although they had not been before—of the opinion that the exemption did not apply in this case, and that primary legislation would be introduced.
That is why we have this Bill—the European Scrutiny Committee did its job and asked for further clarification. [Interruption.] I am extremely grateful to the Under-Secretary of State for Foreign and Commonwealth Affairs, my hon. Friend the Member for Boston and Skegness (Mark Simmonds), for nodding his head, because sometimes people wonder what all the detail is about and whether we have to be so intricate. The bottom line is that the European Scrutiny Committee, by pointing out the legal objections and having a dialogue with the Government, who in turn had a dialogue with the European Commission, helped to make the legislation better. We helped to guarantee that there would be primary legislation and that, in the absence of the authorisation through the 2011 Act that had been deemed to be appropriate, this House would have the opportunity to consider the matter in the way we are considering it today. Indeed, after this debate, there will be a Committee stage and a Report stage.
The European Scrutiny Committee reported on the proposal again on 28 November. We cleared the document, but in January 2013 we pointed out to Ministers that the Government’s uncertainty about whether the exemptions applied to this decision had prevented the new measure from being agreed in good time. That is the history of this matter and it is important to put it on the record.
The draft decision on the number of European Commissioners provides another example of the European Scrutiny Committee takings its findings to the Government and, thereby, to the Commission. We received an explanatory memorandum and a letter from the Minister for Europe on 27 September. He stated that the size and composition of the European Commission was a fraught subject. He went on to say that it was difficult to identify a solution that was equitable, legitimate in terms of the relative size and weight of different European countries, and efficient. That is all in our report.
The European Scrutiny Committee considered the draft decision in its 13th report, which was published on 2 November 2012. We noted that because of delays in the draft decision being communicated to member states and because Parliament was in recess, it was not possible for us to scrutinise the proposal before political agreement needed to be reached on the draft decision at the General Affairs Council on 16 October 2012.
I put that on the record because it is important that these matters have a proper legal base and that Parliament has an opportunity to debate them. We are having this debate on the Floor of the House, so it is open to any Member of Parliament to discuss these proposals, to oppose them, to examine them in Committee and to table amendments.
Mr Cash
I will give way in just a moment, if I may.
The problem is that when we provide for amendments to be made to matters that have been through the Council of Ministers, we are obliged under section 2 of the European Communities Act 1972 to continue to pass that legislation through our Parliament. That poses the very questions regarding the role of national Parliaments that the Prime Minister raised in his recent speech. The European Scrutiny Committee is currently conducting an inquiry into scrutiny and that is among the matters that we are considering.
If the House of Commons—or indeed the House of Lords, although I will stick to the House of Commons for my purposes—were to take exception to a provision that was included in an Act of Parliament for lack of a legal base or for some other substantive reason and wanted to vote against it, that would raise the very question that was embedded in the White Paper of 1971, which led to the passing of the 1972 Act. Under section 2 of that Act, we must implement all decisions that have been decided in the Council of Ministers, irrespective of any other factors. Under section 3, we must agree to all decisions of the European Court.
In the context of the Prime Minister’s speech— I welcome his comments on the referendum, although I think it will come too late—we have to evaluate where the power lies in passing legislation. We need an Act of Parliament for the provisions contained in the Bill for the reasons that have already been given, which I endorse. However, could Parliament veto the provisions that it covers if we did not want them to go through? We should be allowed to do so, and that will be part of the inquiry that the European Scrutiny Committee is now conducting. It is difficult to justify to the British people the fact that if they vote in a general election to have certain legislation implemented, they can then find that it is all decided in the Council of Ministers, where 91.7% of votes go in favour of European proposals. That brings up the whole business of how UKRep advises, or even decides, on such legislation, which is a vital question that affects the daily lives of this country’s voters.
Geoffrey Clifton-Brown
I congratulate my hon. Friend’s Committee on bringing this matter before the House. Clause 2 of the Bill contains an important provision. How can it be right that a small country such as Luxembourg has equal representation on the Commission with a complex country such as ourselves? That surely makes no sense whatever. Furthermore, the clause seems to indicate that however many countries join the EU, they will each get a commissioner, so we could end up with 30 or more commissioners. How can that make sense?
Mr Cash
It is difficult to make sense of a lot of things that come out of the European Union, and I am reminded of what Alice said in “Alice’s Adventures in Wonderland” about believing half a dozen impossible things before breakfast every day. That is possibly one example.
The reality is that there are 27 member states, and there was a lot of discussion about whether there should be an equivalent number of commissioners. It was decided that each member state would continue to have a commissioner. I understand well what my hon. Friend says, and it is quite difficult to justify given countries’ comparative size, geography, GDP and so on. On the other hand, if some countries were to be denied a European commissioner, I suppose some people would say that they were being treated unfairly. Finally on the number of commissioners, I have argued in the past that the European Commission should be relegated to the role of a secretariat rather than the role that it currently enjoys.
Bob Stewart
My hon. Friend has eloquently, and at some length, posed and answered the question that I was going to put to him earlier. I was going to say that whatever we do here, it will have no impact on the number of commissioners.
Mr Cash
That is correct, given that the veto that was promised to us has been taken away.
Right at the beginning, when the European Communities Act 1972 went through, the functions of the European Union were fairly restricted. Up to the Single European Act in 1986, which I voted for, there were a limited number of qualified majority voting arrangements. That Act greatly expanded them, and I tabled an amendment at the time suggesting, “Nothing in this Act shall derogate from the sovereignty of the United Kingdom Parliament”. I was then advised by the Clerks—indeed, I went to the Speaker about it—that it was not possible to move such an amendment, because it would challenge the fabric of the 1972 Act. Time has moved on, and qualified majority voting is now used in a lot more cases.
There was a qualification in the 1971 White Paper, which led to the passing of the 1972 Act by a mere six votes. It stated that there would be no essential erosion of British sovereignty, and that we would have to retain the veto in our vital national interest, because doing otherwise would undermine and endanger the very fabric of the European Community itself. I repeated that point the other day and will do so again and again, for one reason—the mass of legislation that there has been since the referendum in 1975, including all the treaties, with some 35 million people in this country never having had an opportunity to express their view on that legislation. As I said in The Times the other day, treaty after treaty has gone through on a three-line Whip, without a referendum. There has been a vast accumulation of qualified majority voting, and all that legislation has been passed.
The Bill contains just one provision. Matters that would normally require a Bill have gone through both Houses of Parliament without one, but this one, which is based on a few lines in a directive or regulation, is in a Bill. There is a complete mismatch in proportionality in how we legislate.
There may well be no Division this evening, but that does not alter the fact that we have done our job, both in the European Scrutiny Committee and in the House, by examining a matter that would otherwise not have had a legal base under article 352. It is dangerous to legislate without having the power to do so. The rule of law is essential to the running of a stable Government and a stable European Union—if there is to be a European Union, it had better be stable and in accordance with the rule of law. Increasingly, the EU is demonstrating its lack of regard for the rule of law on matters such as the stability and growth pact. We also see it in the unlawful manner in which 25 member states went ahead after the Prime Minister had exercised the veto. There are many other examples. When a body that vaunts the rule of law as much as the EU is blatantly in breach of its own rules, there is trouble ahead.
Mr Chope
I think that is a brilliant idea, and for a long time I thought that was the policy supported by the Government. It is certainly supported by almost every member of the Parliamentary Assembly of the Council of Europe, including many from core European Union states who regard themselves as being Europhiles in the extreme, but even they ask what the point is of duplicating the functions of the Council of Europe with those of the Fundamental Rights Agency. I hope my hon. Friend will take that idea forward.
If we are to have a Fundamental Rights Agency with a multi-annual framework, as stated in the Bill, why not concentrate on one or two areas with an obvious need for further work? At the moment, the management board mentions “thematic areas”, which include:
“Immigration and integration of migrants; visa and border control; asylum”,
and the European Union is fundamentally failing in that area at the moment.
The week before last I was in Greece where I visited the Greece-Turkey border and received briefings from Greek Ministers and the Hellenic coastguard about the problem of illegal migrants coming into Greece, mainly from Turkey. One problem in Greece that contributes to the
“racism, xenophobia and related intolerance”—
that is thematic area (j)—is that it is virtually impossible for Greece to return illegal migrants to the countries from which they came.
Let me give the House an example. When visiting a detention centre in Athens, I went up to the wire fence and asked whether anybody spoke English. To cut a long story short, I started a conversation with a person who said that he had arrived in the detention centre having set out from Afghanistan—he is an Afghan national—and that he had paid smugglers $8,000 to get across Iran and Turkey. He wanted to go from Turkey across the Aegean sea and on to the Italian eastern seaboard so that he could make his way to the United Kingdom. I inquired about that and asked why he wanted to go to London. He replied that it was because he had been there for five years until a few months ago, and that he had lots of friends in London who had paid the $8,000 for his return trip. He had been deported from the United Kingdom after playing our system for about five years, and within a few weeks of getting back to Afghanistan this wholly undeserving case was presenting himself in a Greek detention centre.
Unfortunately for that man, the boat from Turkey foundered—I suppose it is fortunate that the Greek coastguard rescued him and he was not drowned—and he found himself in the detention centre, but the Greek authorities had no way of returning him back to Afghanistan, because Afghanistan does not accept anyone in Greece who emanated from Afghanistan. If he is detained in Greece for the maximum of 18 months, he will be released and will join all those other people in Greece—this also happens in Italy—who do not belong or do not necessarily wish to stay there, which contributes to feelings of racism and xenophobia on the part of the indigenous population. Something like 60% of people in Greek prisons are non-Greek nationals.
If there is a need for the Fundamental Rights Agency, it should deal with that sort of thing rather than mess around with the other expanded areas to which hon. Members have referred. For example, if the FRA looked at the inability of people to claim asylum in Turkey because it has opted out of many Geneva convention provisions, it might help to focus attention on the need to strengthen the Turkey-EU border.
Mr Cash
Is my hon. Friend conscious of the fact that, in the explanatory memorandum of 10 January 2012, Lord McNally, the Justice Minister, gave an example of a useful tool in measuring the impact of European legislation on fundamental rights in Europe? He cited
“a comparative legal analysis of the position for gay, lesbian, bisexual and transsexual people across EU States which has provided useful data in an area where there is little research”.
Is my hon. Friend aware that that criteria was chosen by the Justice Minister?
Mr Chope
I was not aware of that and am grateful to my hon. Friend for pointing it out. As hon. Members often say, it is an issue of priorities. People and organisations must be judged on the priority they give to different issues. In the light of the enormous crisis in Europe and on European borders, it is odd that that should be a priority as opposed to the problems to which I have referred.
The debate gives us an opportunity to go into many other aspects of asylum and border control, but I will not do so. I have highlighted why they are important. If the organisation has to exist, it would be better if it got on with dealing with serious issues rather than trying to expand its remit.
Mr Cash
I assure my hon. Friend 100% that, if this House, in its sovereign right, decides to repeal the European Communities Act 1972—we entered on a voluntary basis in that year—or any provision that emanates from section 2, by, for example, using the “notwithstanding” formula, we are entitled to do so. Nobody can do anything to stop us doing so. Whether the Whips would allow it is another thing.
Mr Deputy Speaker
Order. I have been very generous in allowing hon. Members to drift all over, but I am not going back to 1972. I want us to stick to Second Reading. We have a bit of time and a bit of latitude has been given, but I do not want to go to the complete ends of it.
Data Protection in the Areas of Police and Criminal Justice (EU Directive)
William Cash Excerpts(12 years, 7 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Blunt
If the hon. Lady will forgive me, let me get our position on the measure on the record, then I will be able to respond to interventions and points made in a more disciplined way.
It is the Government’s view that the proposed data protection directive can be classified as a Schengen building measure; therefore, under protocol 19 of the treaty on the functioning of the European Union, which governs how the Schengen acquis are integrated into the UK framework, the UK does have the option of opting-out of the directive. The deadline for notifying the Council of the European Union of an opt-out decision is 14 May.
The Government's position is that the continued ability to share information on crime and justice matters between nations is of fundamental importance. In an increasingly globalised world, crime does not stop at national borders, but reaches across jurisdictions and involves people of many different nationalities. The Government therefore support proportionate, clear and coherent data protection rules that keep personal data safe, protect the rights of citizens and enable our police to pursue criminals to protect the lives and interests of our citizens.
Mr William Cash (Stone) (Con)
Will the Minister give way to the Chair of the Scrutiny Committee?
Mr Blunt
I am grateful to the Chair of the Scrutiny Committee for that point, but I will have to take advice on what was received and when before replying to him. I am trying to explain that, in this area, there is considerable confusion between opt-ins and opt-outs, so if he will forgive me, I shall try to explain this complicated matter and its consequences in as simple terms as I can, as much for my own benefit as for anyone else’s.
To address specifically the subject of debate this evening, we support the transfer of data across borders and between organisations where it improves our ability to prevent crime, increase security and keep our citizens safe. We must therefore protect the arrangements that have allowed EU member states to share information about suspected criminal activity in a regulated and proportionate manner. The challenge of the directive is that, although parts of it are welcome and will help in the fight against crime, some of the provisions are excessively bureaucratic and unwieldy. As it is drafted, we have concerns about the costs it would impose on UK law enforcement agencies. We are particularly concerned about the fact that it has been drafted so as to apply to internal processing of data—that is, information being shared by police forces or other criminal justice authorities within the borders of one country.
The Government's approach to the directive has been to establish the best way of securing the benefits of continued data sharing with EU member states, while minimising any resultant costs. Having gone through this analysis, our judgment is that, despite concerns about the current text, we should not opt out of the directive. There are three main reasons for this. First, the directive is at a very early stage of negotiation. There is substantial room for improvement, and it is clear that the UK has significant allies within the Council of Ministers who share our concerns. We believe that we can secure a more effective deal by working with our partners than by going it alone.
Mr Slaughter
He is in a pretty desperate situation if that is true.
The animation in these debates often comes from what I might call the meta-issue of why we are discussing European law expansion at all, rather than the precise statutory powers being considered, or at least that is my observation. I intend neither to engage in that debate, nor—other than briefly—to discuss the matter of principle that the draft directive raises. In dealing with the matter of processing personal data for the purposes of preventing, detecting and prosecuting crime, there will always be a balancing act. On the one hand, the prevalence of cross-border crime, including serious and organised crime, crimes of violence, sexual crime and terrorism, is growing, and criminals and criminal gangs are becoming more organised and sophisticated and making better use of technology and information systems, so the police and prosecuting authorities must have the means to match them. On the other hand, the issue of data protection and privacy from the prying eyes of the state in particular is important, contentious and topical, from data storage to the Leveson inquiry.
In opposition, both Government parties set themselves up as opponents of data collection where it could be seen as intrusive, yet I read the following in today’s edition of The Guardian:
“Ministers are planning a shakeup of the law on the use of confidential personal data to make it far easier for government and public-sector organisations to share confidential information supplied by the public. Proposals to be published next month by the Cabinet Office Minister, Francis Maude, are expected to include fast-track procedures for ministers to license the sharing of data in areas where it is currently prohibited.”
The Cabinet Office Minister said:
“In May we will publish the proposals that will make data sharing easier”.
The home affairs editor of The Guardian notes that
“databases continue to proliferate across Whitehall, even before the extension of data-sharing powers. Now the Cabinet Office minister…says government must be ‘smarter and more effective’ at sharing such sensitive data.”
It is not only the EU that has to undertake this tricky balancing of civil liberties with security and the pursuit of crime.
The issue before us is not one of principle, but whether the proposals achieve that balance. That question may be answered only in the further examination of the directive. As I have indicated, we do not oppose the Government’s decision today not to opt out, and I hope that that is clear.
Mr Slaughter
I do, and I was going to deal with that matter after raising a number of specific points of concern.
I am grateful to the European Scrutiny Committee for its report, which states that
“there is now the possibility of establishing a comprehensive data protection framework ensuring both a high level of protection of individuals’ data in the area of police and judicial cooperation in criminal matters and a smoother exchange of personal data between Member States’ police and judicial authorities, fully respecting the principle of subsidiarity.”
The report then adds:
“The Commission concludes that the practical difficulties encountered by a number of Member States in distinguishing between rules for domestic and cross-border data processing could be solved through a single set of rules covering data processing both at national level and in a cross-border context”.
The aim might be laudable, but the solution appears to say that, in order to avoid confusion, principles of subsidiarity should in fact give way to an overarching system controlled centrally. One consequence of that that the Minister has already alluded to is an extension of the scope of data processing to include domestic processing for the purpose of policing and judicial co-operation. In other words, the directive will regulate the passing of data between purely domestic organisations, such as neighbouring county police forces, and I share the Minister’s concern in raising that.
In the area of data protection, the draft directive is stronger and, I think, should be broadly welcomed. It includes: new rights of access and information for data subjects, such as the identity of the data controller, the purpose of the data processing and the period for which the data will be stored; a right for data subjects directly to demand the erasure of their personal data by the data controller; an obligation on data controllers to inform supervisory authorities and data subjects of data breaches, informing the former within 24 hours of discovery and the latter without undue delay; and an obligation for data controllers or processors to appoint data protection officers. The incorporation of human rights legislation—the Human Rights Act 1998—into UK law by the previous Labour Government has improved the right to privacy and to protection from intrusion into family life, but we still have some way to go.
Mr William Cash (Stone) (Con)
The issue here is one of process as well as substance. I am sorry that the Lord Chancellor has just left the Chamber. I was glad to note that he was here before I rose, but he seemed to depart rapidly. I can only assume it was because some of the remarks that I am about to make may not be entirely to his liking or that of the Under-Secretary.
This is a Lidington debate, and the significance of such debates is that Parliament has an opportunity to debate, and vote on, motions that clearly set out the Government’s recommended approach—that they wish to exercise their right either to opt into a title V proposal or to opt out of a Schengen-building title V measure.
I pay tribute to my hon. Friend the Member for Camborne and Redruth (George Eustice) for his remarks on the substance of the matter, but there is a very important question to be asked about scrutiny. I speak as Chairman of the European Scrutiny Committee, having just this afternoon come back from duties in relation to the Danish presidency.
I say to the Minister that the way in which this matter is being handled is a disgrace. I will of course refer to the Committee this quite blatant breach of the spirit of the proposals that we have agreed in the past, and I intend to ask the Committee whether it wants to bring him in front of us to explain himself and how this has been handled. It is that serious.
No mention of the Schengen protocol or offer of an opt-in debate was made in the Government’s explanatory memorandum of 13 February, as it should have been, nor was any formal correspondence to that end received by the European Scrutiny Committee. I also mention that the Schengen protocol gives the United Kingdom and Ireland three months to opt out of legislation that builds on the Schengen acquis. The Government’s omission is very significant and has meant that the Committee has not had the opportunity either to scrutinise the opt-in/opt-out decision or report to the House on it prior to a debate taking place.
It may be a matter of some interest to the House that there is no report before the House on the matter. Members can go to the Vote Office and get the Committee’s previous paperwork on the provision, based on our consideration of the explanatory memorandum of 13 February. In that document, we stated:
“It is regrettable that the Minister’s Explanatory Memorandum did not mention any of”
certain opt-in considerations, in blatant breach of Baroness Ashton’s undertaking to Parliament of 9 June 2008. We continued:
“We ask the Minister to keep us informed of progress in negotiations on the points of concern for the Government…We assume, therefore, that the negotiations are unlikely to be completed under the Danish Presidency, and would be grateful to be informed if and as soon as this assumption appears to be incorrect.”
On every single element of what I have just described, the Minister is completely in breach of undertakings and of the requirement to refer matters to the Committee appropriately.
The manner in which the decision has been explained is a disgrace. There has been no attempt to explain it, or its implications, to the House properly. I have to go further and say that Members will need an explanation for the Government’s omission, and I hope the Minister will find an opportunity to provide one before we conclude these proceedings. It must have been obvious to the Government that the draft directive was a Schengen-building measure, because several of the recitals state explicitly that it is and because the framework decision that it replaces was stated to be a Schengen-building measure. Recital 43 states that the UK is
“taking part in this Framework Decision, in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union.”
In order to have a meaningful and informed debate on the Floor of the House under the Lidington arrangements, the Committee should have had reasonable notice of the Government’s recommended approach. A mere 24 hours is clearly inadequate.
I could refer to many other matters, but the question on which I shall conclude is simply this: what negotiating strategy will the Government adopt to mitigate the negative impact of the proposal as drafted, and what is the Minister’s estimation of the likelihood that the Government’s strategy will succeed?
This is a very sorry day in the scrutiny of European legislation. I am only sorry the Lord Chancellor is not here, because if he were, I would invite him to go to the Dispatch Box instead of the Minister, who has let us down so woefully.
Sir Peter Bottomley
Were there to be a meeting of Ministers of European Union countries during the next few days, and were there to be either a satisfactory or an unsatisfactory outcome, how could it be reported to the House and how could we take a decision that supports or negates any decision that is taken this evening?
Mr Cash
I find it extraordinary that my hon. Friend should seek to defend the Government’s breach of a series of requirements as prescribed in the spirit of the orders before the House, but in addition, it is perfectly clear—to me at any rate—that these proceedings are happening because of the timetable of Prorogation.
Jacob Rees-Mogg
I wonder whether the real reason why this is being done in this appalling way, completely ignoring the proper forms of scrutiny, is that the Government know they have an absolutely rotten argument and thought they would push this through quickly while people were thinking about Prorogation and the Queen’s Speech and what will be in the next programme. It is little more than prestidigitation.
Mr Blunt
After that contribution, it is clear that I owe my hon. Friend the Member for Dover (Charlie Elphicke) an apology for not having taken his intervention, not least because he welcomed the Government’s general objectives and the balances we are seeking to strike. However, he did then say that this was another villain’s charter from the EU—an argument that some in the press have also made.
The rights of United Kingdom citizens under our existing laws under the Data Protection Act—their rights to access information and for information to be erased—are pretty much the same as what is being proposed in this directive. The same rights of the authorities not to have to erase data that are important for criminal investigations will also continue to exist in the future.
Let me turn to the important question of process, and address the concerns of my hon. Friend the Member for Stone (Mr Cash), the Chairman of the European Scrutiny Committee. I am perfectly happy to concede that these matters could have been handled better. One of the constraints we have placed on ourselves in the so-called Lidington debates is to bring the measures relating to opt-ins or opt-outs under the Schengen protocol to the House and give Members the opportunity to debate them. My hon. Friend pointed out that there is the small matter of prorogation. The decision on the opt-out must be taken on 14 May. [Interruption.] Well, that is what is in the treaties of the EU. The Government have to decide whether to opt-out by 14 May, and we are also committed to coming to the House and giving Members the opportunity to debate.
The information given to my hon. Friend—which was given within 10 days of the directive being published—made no reference to Schengen. I will examine why that was the case, but I am advised that whether or not the matter fell within Schengen was still under examination at the time. There is also an element of legal opinion as to whether or not the Schengen acquis can be correctly claimed by the Commission when it comes forward with these measures. There is an element of process to be applied, therefore, rather than our just taking at face value Commission statements on regulations and directives and whether measures are compliant with Schengen.
Mr Cash
When the Minister reads the transcript, he will see that the matter is specifically referred to in the framework decision recitals. I do not think there is any debate about this point, therefore. What I would like to know is whether the Minister for Europe consulted the Minister on this matter; after all, the Lidington debates are based on an assumption in the context of decisions taken by this House in the light of what the Minister himself specified.
Mr Blunt
No, I did not speak directly to my right hon. Friend the Minister for Europe. Yes, it is in the recitals, but the regulation published by the European Commission in parallel with this also asserts some involvement with Schengen, which we dispute. These issues are not always very straightforward. On the timetable we have placed on ourselves to have this debate in time for the Government’s decision on the opt-out, which has to be taken, and on parliamentary arrangements, I accept that things could always have been done better—
EU Criminal Policy
William Cash Excerpts(12 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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.
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.
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.
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.
Common European Sales Law
William Cash Excerpts(12 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr William Cash (Stone) (Con)
I am grateful to the Minister for his comments. As he knows, the European Scrutiny Committee’s conclusion is that the proposal does not respect the principle of subsidiarity. I heard what he said about the difference between the two chambers in Germany. We know that the Bundestag takes the same view as us, and the fact that the Bundesrat does not fails to alter the fact that there is a powerful reason for us to pursue the points that led to the reasoned opinion that we are submitting.
Many organisations have been consulted or have offered evidence on the matter, and their evidence is very powerful from a practical point of view. I have in mind the evidence of Which?, Consumer Focus, the Federation of Small Businesses and the Law Society. It would be invidious to go through each of the objections and arguments that they have made, but in general there are questions about whether there is clear evidence that the regulation is needed and about legal uncertainty, cost and potential confusion.
There is no doubt that throughout the whole business community, there is grave concern about the range and extent of such a provision. In a nutshell, the question whether there is compliance with the principle of subsidiarity is essentially one of practicality as much as of constitutional propriety. The whole object of subsidiarity is to determine whether a matter is better handled at national level than under the aegis of the European legal framework. It remains to be seen whether other national Parliaments enable us to reach the threshold necessary for the matter to be returned to the Commission, but all the evidence that we have received demonstrates that the UK should adopt the reasoned opinion and send it to the presidents of the Commission, the Council of the European Union and the European Parliament before 12 December.
All the arguments are set out in the papers that are in the Vote Office. As I said, I do not think it is necessary or desirable to take the House through every jot and tittle of them—they are so powerful that I really do not think there is any need for me to do so. I would, however, say that it is axiomatic that an optional sales law common to all member states is something that can be better achieved at EU level than at national level. However, that is to assume that the proposed common sales law is necessary and will produce clearer benefits by reason of its scale and effect than action by member states. Based on the evidence to which I have referred, the European Scrutiny Committee doubts whether either requirement has been met.
In addition, the Committee finds that the Commission has again failed to prepare a detailed assessment, in accordance with article 5 of protocol 2 to the Lisbon treaty. That is a very important point. It makes it exceedingly difficult for national Parliaments to determine whether there has been compliance with the principles of subsidiarity within the eight-week period. We were greatly assisted in this case by the submissions that we received from the organisations in the UK to which I have referred. Where their concerns overlapped, we found that there was a convergence of views. That was particularly instructive and helpful to the Committee, and we are grateful for that. In fact, I would go further and say that I wish more business organisations would make submissions more frequently on many such matters that come before my Committee. It is one thing for us to form a judgment, but it is also extremely important to know that it is based on firm practical considerations.
The Commission’s failure to provide a detailed statement amounts, in our view, to an infringement of the essential procedural requirements laid down in protocol 2. We therefore recommend that the House adopt a reasoned opinion to be sent to the Presidents of the Commission, the Council and the European Parliament before the deadline of 12 December. We retain the draft regulation under scrutiny pending a further update on the negotiations, and we are particularly interested to hear the outcome of the discussions on the appropriate legal base. As far as we are concerned, the communication itself can be cleared from scrutiny.
I therefore submit that the draft reasoned opinion of the House should be adhered to and submitted accordingly, and that we should do all in our power to get as much support as possible from other member states, because of the serious breaches of the procedural arrangements and because of the breach of the subsidiarity principle. I look to the Government to do that.
Tom Brake (Carshalton and Wallington) (LD)
I rise briefly to highlight some concerns with the proposals. The perspective of Which? and Consumer Focus is that the different contract laws do not stop consumers or businesses from cross-border trading to any significant degree. It is not clear that the proposal would lead to an expansion of such trade, and it could lead to greater complexity and therefore increase business transaction costs.
There is no legal certainty that the measure would be applied uniformly across the EU. It therefore has the potential to create legal uncertainty and confusion for customers, and it would not provide them with choice, because they would continue to be limited to accepting the contract offered to them by the supplier.
There are grave reservations in relation to the potential for the measure to lead to back-door harmonisation of contract law. I am sure that if my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) had been in a position to stay for the whole debate, he too would have made those points.
I understand the Government’s perspective of subsidiarity, but the measure is an optional change, not an imposed one. Can subsidiarity in all cases overrule something that is optional and not mandated? The Minister rightly said that the regulation would not be simple to use and that complexity is involved, but have the Government assessed whether the proposal is more complex than the current legislation? Do they recognise that the Federation of Small Businesses says that small businesses need to be able to afford to compete in different markets in the EU?
The proposal raises many more questions than it resolves, and therefore a detailed and extensive consultation is required.
Mr Speaker
Order. There is some confusion here. I think the hon. Gentleman either thought or hoped he was intervening on the right hon. Member for Carshalton and Wallington (Tom Brake), but the latter is signalling that he has concluded his remarks. I am sure that that fact will be of close and abiding interest to the hon. Member for Stone (Mr Cash), knowing what a great interest he takes in the observations of other hon. Members.
Stephen Phillips (Sleaford and North Hykeham) (Con)
I rise to make a short contribution to the debate, and to make some of the points that were made to my hon. Friend the Member for Stone (Mr Cash) and others on the European Scrutiny Committee by the City remembrancer of the City of London, who has provided us with a briefing that contains a number of salient observations on the measure, which are important for the House to consider in deciding whether the motion should carry.
The first and most worrying of those observations—I attribute these views not at all to the City of London or the City remembrancer; these are my words—is that there is considerable concern that the measure is the thin end of a uniform contract wedge that is being deployed by the Commission in an attempt to undermine the universality of English contract law, which is used in transactions not only between businesses within the EU but across the world, where, alongside New York law, it is the predominant way in which international trade is regulated. I should like to hear more from the Minister on that.
Were there any doubt that the Commission has in mind that the proposed regulation is the thin end of a uniform contractual wedge, it would be removed by article 15, which makes clear that the Commission would be obliged to review the measure after five years,
“taking account of…the need to extend the scope in relation to business-to-business contracts, market and technological developments in respect of digital content and future developments of the Union acquis.”
Given that the Justice Commissioner has already indicated that he plans to announce consideration of a European common insurance law next year, there ought to be grave concern on both sides of the House that the measure is the first step in an attempt to impose upon this country a uniform European contract law. I suspect that many hon. Members would be extremely concerned about that.
The second concern to which it is worth drawing the House’s attention is the speed with which the draft regulation was drawn up. It was drawn up in a very short period of some 11 months by a so-called expert group which, I must tell the House, consisted predominantly of academics. It consisted for the most part not of those who actually practise law or indeed of those who would have the option to use this contract law were it to be introduced. In those circumstances, if the proposals were to go ahead, there would, in my respectful view, need to be a much greater consideration of what practitioners have to say on the subject of contract law and the draft regulation, and a much greater consideration of what business wants.
Those are two initial concerns about the regulation, but there are others. Essentially, the regulation would establish an optional contract law that would lie alongside national contract law, but that could cause conflict between almost identical contractual situations as they apply between those who are negotiating within the EU, and possibly even between those within member states. The position would essentially be that someone who selects the option of the EU contract law might gain greater rights than someone who does not do so—the latter, through the application of conflict of laws rules, would have the contract containing his rights and obligations subjected to some wholly different system of law. That must be a grave concern, because it could result—naturally—in different decisions being taken by national courts in relation to precisely the same facts, depending on which law applies. That might be acceptable when the laws that apply are of different nations, which would be selected pursuant to established conflict of laws rules, but it cannot, in my judgment, be acceptable when the laws in question are on the one hand common law, as in this country, and on the other hand an optional community contract law, both of which none the less hold sway in the same jurisdiction. That is therefore a very great reason why the measure is not in the interests of the City of London, or of this or any other European country.
Establishing a new contract law—even one that has been written by a group of academics—is, moreover, destined to lead to much greater litigation, uncertainty, increased costs, and increased transactional costs, because there will be no established body of law and no binding juridical opinion by reference to which those who are obliged to be consulted on difficult legal problems arising out of contracts can form settled views as to the correct answer in respect of their clients’ rights, entitlements and obligations.
Growing that body of law—it could grow only in this country, where we have a system of precedents—could take several decades. If small and medium-sized enterprises, and perhaps even larger businesses, adopted the optional contract law, their rights and obligations would necessarily be unclear during that time. That is not only most unsatisfactory from the perspective of those who seek to do business in international markets, but wholly unsatisfactory from the perspective of the development of the law.
Mr Cash
On the question of legal base, does my hon. and learned Friend recall that originally the Secretary of State for Justice took the view that he had doubts over whether article 114 was appropriate? There was then the question of whether article 352 might not be more appropriate. Unfortunately, because of the enactment of the European Union Act 2011, primary legislation had to be passed before the Government could give their consent to the adoption of the proposal on article 352. Therefore, there is a serious question over whether there has been complete compliance not only with the principle of subsidiarity but with the legal base.
Mr Speaker
The principle of subsidiarity is important, but there is also a very important principle of interventions, and that is brevity.
Access to a Lawyer
William Cash Excerpts(13 years, 2 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)
I beg to move,
That this House takes note of European Union Document No. 11497/11 and Addenda 1 and 2 relating to the Draft Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest; and supports the Government’s recommendation not to opt into the Directive in accordance with Protocol (No. 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice to the Treaty on European Union and the Treaty on the Functioning of the European Union.
I commend the European Scrutiny Committee for calling this debate. As set out in the coalition agreement, the Government approach criminal justice legislation case by case, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system. The Government recommend that the UK should not opt into this proposed measure at the start of negotiations, not because we do not think that minimum standards of defence rights, including access to a lawyer, and the right to communicate on arrest, including with consular authorities, are important—of course, we do—and not because we disagree in principle with the setting of common, minimum standards across the EU in respect of certain aspects of criminal proceedings. On the contrary, we see the benefit of appropriate minimum standards. For that reason, the UK opted into the first two measures on the procedural rights road map on interpretation and translation and the right to information in criminal proceedings. We are not making this recommendation because we fear that our law does not meet the minimum standards required by the European convention on human rights—it does.
The reason we do not propose to opt into this measure at the outset of negotiations is that we think that the directive as published by the Commission would have an adverse effect on our ability to investigate and prosecute offences effectively. It is important that action is taken to ensure that the standards of procedural rights across the EU are adequate. That is necessary for two reasons: first, to ensure that, as people travel through the EU, they can be confident that in the event that they are unfortunate enough to become subject to the criminal justice system of another member state, they will be dealt with fairly and in accordance with robust minimum standards; and, secondly, the EU has chosen to develop a series of mutual recognition measures designed to promote security by helping to combat crime and ensuring that suspected offenders cannot use European borders as a way to escape justice.
Mr William Cash (Stone) (Con)
The Minister has twice used the words, “at the outset of proceedings”. Being something of an old hand at this sort of thing, I wonder whether that means that he proposes to opt in later. Perhaps he will bear in mind the problem that some other member states have judicial systems that are, quite frankly, below par.
Mr Djanogly
Indeed they do have systems that are below par, which is why we are keen for the measure to proceed across the EU. We will decide at a later date whether Britain opts in, subject to the negotiations that will take place. If my hon. Friend listens to what I have to say a bit further, he will hear how we propose to look at that process.
This is a good, practical idea that has delivered some notable results, provided that it does not put suspects at risk of less-than-adequate criminal proceedings. Such instruments of mutual recognition were never intended to operate on their own. It was intended that they should be supported by a series of criminal procedural rights, enforceable at EU level, that would build on the rights already guaranteed by the ECHR and provide additional reassurance that the rights were being given practical effect in all member states. These standards will not only protect British nationals when they are arrested elsewhere in the EU but will provide greater trust and confidence among the courts of all EU states that judgments handed down, which they may be expected to recognise, have been made on the basis of sound procedural standards.
Standards of procedural rights are high in the UK. The right of access to a lawyer, both before and during police interview, has been provided in England and Wales and Northern Ireland since the mid 1980s. A similar right was provided for in Scotland last year. However, despite the fact that we see value in the Commission tabling such a measure, we have considerable concerns about the detail of the directive and the impact its drafting would have on the UK’s criminal justice systems.
The procedural rights directives are intended to draw on the jurisprudence of the ECHR and to flesh out what those rights mean in practice. Certain provisions of the Commission’s proposal, however, go far beyond the minimum standards that stem from the convention. While there is no problem in principle with going beyond the standards of the convention if there are good practical and policy reasons to do so, we do not see such reasons in this case. On the contrary, we think that there would be some quite adverse and costly impacts on the ability effectively to investigate and prosecute offenders were the Commission proposal to be adopted.
Examples of that include the fact that the directive as drafted by the Commission may require access to a lawyer to be provided in some stages in the investigatory process where currently a lawyer is not provided, such as at a police search of a property or where a person’s fingerprints are taken when they are booked into a custody suite. We do not consider it necessary or proportionate to provide a lawyer in those situations.
In addition, the directive requires that a person should always be able to meet his lawyer face to face, whereas we provide, in some minor cases, for telephone access, which detained persons often prefer as it can mean that they are held for a shorter period as it is not necessary to wait for a lawyer.
Mr Andy Slaughter (Hammersmith) (Lab)
As the Minister says, the directive forms part of a defence rights road map agreed by the European Council in 2009 that aims for greater harmonisation of fundamental tenets of the criminal law. We have opted in and supported the previous two limbs of that. The current proposals concern principally the right to access to a lawyer on arrest, the right to have someone notified on arrest, and the right to communicate with a third party on arrest. As such—I do not think the Minister resiled from this—it articulates what most British people would consider not only uncontroversial but essential civil liberties. Since 2009 the EC has sought to harmonise these rights across Europe. I think the Government welcome that.
Notwithstanding the points the Minister made, which I shall come to in a moment, it is difficult to see why the Government oppose the proposal as far as this country alone is concerned, at least for the present. If introduced, it would give us confidence that members of the British public would be subject to due process when overseas. According to the Foreign and Commonwealth Office website, more than 19 million British nationals travel to France every year, 13 million to Spain, 4 million to Italy and 2 million to Greece. Hundreds of them will, sadly, end up being arrested for a criminal offence. In Spain more than 2,000 Britons a year are arrested for criminal offences.
As the Minister said, Europe is not a homogenous legal environment and not all justice systems operate in the same way or to the same standards. I am grateful for the briefing that Fair Trials International provided for the debate. The organisation helps to ensure a fair trial for anyone facing charges in a country not their own. In its research it highlights some notable examples. I shall not spend a great deal of time on that, as it would take up the time of other Members who wish to speak.
Some of the cases are familiar, such as that of Garry Mann, a 51-year-old fireman and football fan who was arrested in Portugal, allowed to leave the country, subsequently arrested on an arrest warrant and imprisoned for two years. It was a case of mistaken identity and on arrest he did not have the benefit of a knowledge of Portuguese law, which would have allowed him a stay.
Another case is that of Edmond Arapi, who was convicted in absentia of committing a murder in Italy at a time when he was working in the UK. It got to the point where he was about to be extradited and imprisoned for a term of 16 years. Had legal advice been available to him at the time of his arrest, it would have become apparent much earlier that this was a clear case of mistaken identity.
Mr Cash
I am reasonably familiar with the Arapi case because it took place in Staffordshire, not far from my constituency. Of course, the real mischief was the arrest warrant itself. There was no reason whatsoever why that man was dealt with in that way. I think that it is absolutely futile to attempt to argue the case on access to lawyers on the basis of the complete failure of the arrest warrant system.
Mr Slaughter
The hon. Gentleman makes part of my point for me. There are concerns about the operation of the European arrest warrant, but that is one of the reasons we wish to see the provision of good-quality legal advice and access to lawyers throughout the European Union. He might have his own solution on our relations with Europe, probably a rather more fundamental one than mine or the Minister’s, but we are where we are and it is therefore important that these safeguards exist.
I was going to mention a third case, that of John Packwood. There are unfortunately a large number of such cases, but those are the three famous ones that have featured heavily in the UK press, particularly the Daily Mail, which has championed many of the cases in which the most perverse decisions have been made in foreign jurisdictions. For the people involved and their families, the experience was a nightmare. They were in a foreign country trying to communicate with officials who spoke an unfamiliar language and subject to procedures that were often summary and perverse, and yet they had no knowledge or advice with which to challenge them. It should be a matter of concern to the Government to protect our citizens overseas and ensure that they are given the same consideration as we would grant citizens of other countries visiting Britain, and that they are given the opportunity to do so and, at least for the present, decline.
We should not be slow to see the high standards of justice that British people expect of our criminal justice system applied to other countries. The directive would assist that process. After all, it was the previous Conservative Government who enacted the Police and Criminal Evidence Act 1984, which provided a suspect in police custody with a statutory right to legal advice. Section 58 of the Act states that a person arrested and held in police custody is entitled to consult a solicitor privately at any time. The detention code provides that the consultation may be in person, in writing or by telephone and that free and independent legal advice is available. Therefore, the decision not to opt in to a directive that has the same intention as those provisions seems strange, and I will move on to what the Minister says are the differences.
First, the directive’s requirements are broadly in line with current UK legislation. Where there are divergences—the Minister mentioned one or two—they are negotiable. This is a process of ongoing negotiation, and in some cases they are subject to the requirements of national law. The example of searches, which the Minister gave, is one of those.
Secondly, the negotiations are continuing. As the Minister said, many other countries are concerned that there is inadequate room for derogation and are questioning aspects of the directive. It is therefore unlikely that it will remain in its current form. It seems pointless to send negotiating teams, as the Minister proposes, when we are the only country that intends to opt out at this stage, which fatally undermines the authority and leverage that this country will have. We appear to be throwing away an advantage to British citizens for reasons that are at best unconvincing and at worst spurious. Why have the Government taken this position? The Minister might have seen the briefing from JUSTICE, which takes the Government’s points of objection and states that they are either points that can be negotiated, or points that the Government have got wrong. It looks as though the Government are looking for reasons to opt out at this stage.
Tomorrow, the Minister and I will meet again for the next Committee sitting of the Legal Aid, Sentencing and Punishment of Offenders Bill, and I look forward to that in Committee Room 12 at 9 o’clock. One of the first clauses that we will consider is clause 12, which gives the new director of legal aid casework and, by extension, the Lord Chancellor the power to decide who does and who does not get access to a lawyer in a police station—and to do so on the basis of an interests of justice test.
There has already been an outcry throughout the criminal justice system at that attack on a basic right, which was introduced to avoid the risk of a miscarriage of justice. PACE itself was in part a response to the appalling miscarriages of justice of the 1970s, but, in answer to the criticism that the Minister is taking on a power that will allow the state to regulate who does and who does not get advice in a police station, he says that he has absolutely no intention of taking away legal help from police stations, so why is he then arrogating to himself the power to do so?
Taken together with the premature decision tonight to opt out of the directive while negotiations continue and before any decision needs to be taken, clause 12 of that Bill suggests that the lessons that led to PACE are being forgotten by this Government.
May I ask the Minister three questions, which, if he replies at the end of the debate, he may wish to answer? First, why are the Government not going to do what they did with the earlier stages of the road map and continue negotiations before making a decision on opting out? Secondly, why are they opting out now when there is further time to negotiate? And, thirdly, can the Minister confirm that the Government are committed to the current system of access to counsel in a police station and do not intend to erode that right, and if so explain why they are pursuing clause 12?
The objections that the Government have raised are nugatory and susceptible to change, if there is any merit in them, whereas the advantages to British citizens abroad are clear and substantial. It is not good enough for the Minister to say that we can get all the benefits of the directive if it is enacted in 26 other countries, but that we do not need to bother with it ourselves. That sounds like a clear Eurosceptic “have your cake and eat it” voice from the Minister, and I am not sure that that is what he is saying, but it is a—[Interruption.] I am not sure that Government Members think that that is what he is saying, either, but it is a knee-jerk reaction to opt out at this stage.
Mr William Cash (Stone) (Con)
The European Scrutiny Committee recommended this subject for a debate on the Floor of the House, in line with the written ministerial statement that all matters of this kind would be so debated when they
“have a substantial impact on the United Kingdom’s criminal or civil law”.—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]
This is a very good starting point. However, I am somewhat disquieted by the extent to which the Minister has indicated—I hope that I am wrong, and that he will correct me if I am—that it is only a matter of time before, irrespective of the matters of principle that arise, we might end up opting in. I remind him that the whole process of the opting-in arrangements is based on a presumption against our opting in unless there are profoundly good reasons for doing so.
For the reasons that have already been touched on by the Minister and by the hon. Member for Hammersmith (Mr Slaughter), I believe that neither the difficulties that arise in relation to the application of arrest warrants nor the question of failures of justice in certain countries in the European Union may ever be sorted out. One need only look at a number of countries that came in by way of accession over the past few years. That went somewhat against the advice of the European Scrutiny Committee, and we had indicated beforehand that they had judicial systems that were so substantially below standard and riddled with corruption, with political judges and perverse procedures, that it was completely unacceptable that they should be allowed in. Access to a lawyer is obviously an important necessity, but whether one gets justice as a result of having such access when the courts themselves are corrupt is quite another story. That needs to be borne very much in mind.
We all believe that when citizens of the United Kingdom go abroad they should have access to a proper judicial system when they get there. Sometimes they are arrested, as in the case of some of the arrest warrants. We have heard reference to the Arapi case and one or two others. I have the greatest respect for Fair Trials International; its representatives have given evidence to the European Scrutiny Committee, and they have been very impressive. They have grave reservations about the arrest warrant and have said so. Where there is a serious problem in respect of the judicial system of a given member state, the fact that one has access to a lawyer may be only a minor mitigating factor.
Some time ago, before a lot of these laws were being put through, there was the case of the Greek plane spotters. Mr Arapi came from Staffordshire, and I noted what went on. My hon. Friend the Member for Staffordshire Moorlands (Karen Bradley) was instrumental in what happened. It was the subject of her first intervention in Prime Minister’s questions, and the Prime Minister immediately seized on it. I had a little word with her beforehand and suggested that it might be a good idea if she raised it with him, because I was convinced that he would immediately take the appropriate action, and he did. However, it took the intervention of the Prime Minister to sort this out, not access to a lawyer or to the judicial system where this poor man was convicted and sentenced to 16 years for an offence that he could not possibly have committed. The entire procedure that led to his conviction was utterly, completely and incontestably absurd, futile and dangerous.
My concern is less about access to a lawyer and more about whether people get justice even when they have a lawyer. That might seem rather strange, but it is exactly the problem. I do think that being able to contact consular authorities is incredibly important. I would certainly go along with that.
We have heard a number of points from the Minister, and I will briefly mention them, so as to put this on the record as Chairman of the European Scrutiny Committee. The potential consequence of article 10.2 and 13.2—of fettering the ability of a trial judge to decide on a case-by-case basis whether evidence should be admissible if it is obtained in breach of the directive’s provisions—is one problem. The other, as the Minister has indicated, is the financial implications of article 4, about providing a face-to-face meeting with one’s lawyer. As the Minister said, it is suggested that the cost of providing that could be as much as £32 million to £34 million a year. Another problem is the precluding of the use of accredited representatives. Those are people who are trained to advise a suspect at a police station. Even though they are not qualified lawyers, they at least provide a degree of assistance.
There is also the issue of the European convention on human rights, about which it is well known that I am not wholly enthusiastic, to say the least. It would be far better if, having drafted the European convention on human rights, we had been aware that we are quite capable of passing legislation in our own country to protect people’s human rights. The idea that I am not in favour of human rights, which the Home Secretary put to me the other day, is positively absurd. Of course I am in favour of human rights; I just want them to be real ones.
I am afraid that quite often artificial constructions are placed on the European convention on human rights, which have been criticised by some distinguished judges. The Lord Chief Justice himself said that the first duty of judges is not to apply Strasbourg decisions in the UK courts, but to protect the common law. A tremendous industry has been created since the 1990s, and the extent of human rights law has now reached astronomical proportions. It provides lawyers with a useful source of income without giving a proportionate degree of protection to those who seek human rights. Human rights could be provided for in Westminster if we passed our own legislation.
Another question is what effect an EU proposal would have if it failed to improve fair trial standards in our own criminal law. Even if it attempted to improve trial standards in other countries, what effect would it have on our criminal law? If the EU proposal had no effect it would become a lot easier to support it, with all the reservations that I have already expressed.
This afternoon, the Lord Chancellor gave evidence to the European Scrutiny Committee on the accession of the EU to the European convention. I assure hon. Members that he made it clear that that is a very, very long-term proposal, with huge degrees of negotiation yet to happen. Apart from that, there must be unanimity all the way down the line. He even ventured to suggest that it might not happen in his lifetime, or at any rate in his political lifetime.
We have to bear in mind the complexities that are being developed. The European convention, as it relates to the citizens of this country and others abroad, interwoven with the charter of fundamental rights under the Lisbon treaty, which of course we voted against but which the Government are now implementing, produces the curious result of a multiplicity of complex procedures all overlapping with one another. It is important that we bear that in mind, because it would have a bearing on cases such as those that we are discussing.
As I have said, given that we have tried and tested procedures, my preferred option would be not to opt in. I have grave reservations about the tsunami of opt-ins that we have been seeing.
Henry Smith (Crawley) (Con)
Is not the fundamental problem with EU opt-ins that if we opt in there is no way back, so if our negotiation is not successful we are stuck with whatever is decided, but if we choose to opt out we are not part of the negotiations? That means that if we opt in at a later stage we get the worst of both worlds. That is a fundamental flaw of the European Union and the opt-in system.
Mr Cash
I very much agree with my hon. Friend, who is also on the Committee and witnesses these things at first hand. The Committee recommended this debate, and I am glad that it is taking place. It is not a token exercise, and I trust that the Minister understands that there are serious reservations about how the judicial system operates in other countries. Although we certainly believe that access to a lawyer and to consular authorities is a good idea, we do not have to have the Lisbon treaty, the European Union or an opt-in procedure under those arrangements to provide for access to the courts or to secure protection for those who need it.
Mr Nuttall
My hon. Friend makes another extremely valid point. Whenever I have discussions on European matters with constituents and other members of the public—not surprisingly, I have such discussions fairly frequently—time and again they refer to the fact that they are dissatisfied with our membership of the EU because they believed that the EU was to do with business and trade. They believe that the EU should have no part in justice or home affairs. When we entered the EU all those decades ago, it was never envisaged that the EU would play a part in justice and home affairs. That is one reason why I will continue to push for a referendum. Such things may have been in the minds of those who were pushing for the European project, but they were never in the minds of our electorate. They were never told about that and it was not part of their consideration when they went to vote back in the 1970s.
Mr Cash
May I remind my hon. Friend that the Conservative party, for the first time since 1972, was completely united in opposing the implementation of the Lisbon treaty? Only as a result of entering into the coalition agreement did we end up having to accede to many of the provisions that result from the introduction of a treaty that we were previously united in opposing.
Mr Nuttall
My hon. Friend makes an excellent point. That is one reason why opposition to our membership of the EU is growing in this country. As I often say to people, in many ways every directive that passes is another nail in the argument of those who will one day argue in a referendum—I believe we will eventually have one—that we should stay in the EU. People are increasingly fed up with the ever-growing competences of the EU. It is all very well to argue that the European Union Act 2011 will put an end to all these things, but we can see—day by day, week by week, month by month—that slivers of competence are going to Europe, and this would be another of those slivers. If the directive were adopted, it would be a classic example of this country’s handing over a further tiny piece of its competence. It might be only a sliver, but this is still a matter of sovereignty. At present, we can decide what our rules are.
Rights and Protection of Victims
William Cash Excerpts(13 years, 4 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr William Cash (Stone) (Con)
The Secretary of State and Lord Chancellor made his point clear at the beginning. He might have been slightly concerned that there would be some kind of Division, but as far as I am concerned, there will be nothing of the kind. To me, this debate is about recognising the fact that this is an important issue. Furthermore, I view it as the job of the European Scrutiny Committee to recommend for debate matters of legal or political importance. Nobody is in any doubt that this is a matter of very considerable importance.
The communication from the European Commission, “Strengthening victims’ rights in the EU”, starts with the question: “Why do victims matter?” Let me give a brief indication of what the European Commission states in this particular context. The communication talks about the many millions of people who fall victim to crime. It notes that about
“30 million crimes against persons or property are recorded annually”
in the EU. It continues:
“Crime often affects more than one victim…This leads to a qualified estimate that there is likely to be up to 75 million direct victims of crime every year.”
So in quantitative terms, we are talking about something in the order of 75 million people affected.
Road accidents are also discussed, with a million across the EU mentioned, along with the loss of 30,700 lives in 2010. People are constantly travelling and moving across borders and it notes that about 11.3 million Europeans are residing
“permanently outside their own home country”.
It mentions that
“10% of Europeans have lived and worked abroad during a period of their lives and 13% have gone abroad for education or training.”
The European Commission states:
“These numbers show the importance of ensuring proper, effective action on the rights of those who fall victim to crime or to road accidents, in their own country or while travelling or living abroad.”
It claims that that is
“both a cross-border and a domestic problem that calls for EU action.”
It also mentions the impact on women in the European Union.
The Commission describes compensation as one of the basic needs of victims. In a section headed “A specific focus on victims of crime—what do they need?”, it states:
“Many people fall victim to crime in the EU every year”,
and refers to
“the need to be recognised and treated with respect and dignity”—
we say amen to that—
“to be protected and supported; to have access to justice; and to get compensation and restoration.”
On the subject of that compensation and restoration, it states:
“Persons who have suffered harm because of the acts of others often expect to get some form of financial compensation, whether from the State or the offender. Compensation aims at repairing immediate and longer-term financial damage. It may also act as a form of acknowledgement through a symbolic payment.”
It continues:
“Restorative justice, which is a relatively new concept in criminal proceedings, goes beyond purely financial compensation to focus on the recovery of the victim.”
As Chairman of the European Scrutiny Committee, I want to explain a little of the background to the four documents that are before us. I am grateful to the hon. Member for Liverpool, West Derby (Stephen Twigg) and to my hon. Friend the Member for Hove (Mike Weatherley) for their contributions, to which I listened carefully. I was very moved by what the hon. Gentleman said about the difficulties experienced by the Dunne family.
The documents comprise part of a package that is a recent initiative to bolster the rights afforded and support given to victims in criminal and civil legal proceedings throughout the European Union. Let me add to what the Minister has said by giving the House the European Scrutiny Committee’s summary of each of the documents.
The road map is a statement by member states of how far they intend to implement the Commission’s victims’ package, which is quite far. The draft directive, which is binding on member states when implemented, lays down comprehensive and far-reaching rules governing the rights of victims of crime. As I have said, the Commission’s communication indicates that further legislation on victims’ compensation, and on the law to be applied in cross-border traffic accidents, is in the pipeline. The draft regulation, which is automatically binding on member states once adopted in Brussels, provides for the automatic recognition in all member states of a civil protection order, such as a non-molestation order, granted by a civil court in one member state. A parallel proposal for protection orders granted by criminal courts is also being negotiated, but is not subject to this debate. As I think the Lord Chancellor will confirm, the Government have opted in to that provision.
As we have heard, the draft directive and regulation are subject to the opt-in protocol referred to by my hon. Friend the Member for Wycombe (Steve Baker), under which the UK is presumed not to want to be legally bound by them unless it notifies the Commission of the contrary within three months of the publication of the proposals. In the opinion of my Committee, the Government should take into account several factors when making their decision.
First, the Government should consider whether the UK can influence negotiations more successfully once it has opted in, and should weigh that possibility against the chance that it could end up being bound by damaging legislation. Secondly—I think this equally important—they should consider the financial impact of the proposal. However much we may agree that there is a case for compensation in general terms, I am sure that the sheer range, extent and potential cost concern the Government particularly, given our current position. Lastly, I repeat that once these obligations are imposed on us, they will necessarily give rise to grave financial implications, and that will be the case across the range of the victims I have identified—as many as 75 million, a figure I put on the record earlier.
There is also the question of whether the proposal will require legislative change in the United Kingdom. The Government’s explanatory memorandum demonstrates that they are broadly in favour of the two legislative proposals but that they need to look at their resource and administrative implications. By contrast, the Government question the need for further legislation on compensating victims. The Secretary of State will, I hope, give us some indication in respect of that before the end of the debate. That is the Government’s position, but I have already indicated the scale, range and extent of what needs to be done.
The European Scrutiny Committee recommended holding this debate for the following reasons: the victims’ package marks a significant changing up of gear in the EU’s policy on victims; the resource and administrative implications for the UK will be substantial, especially with regard to the regulation, as can be seen from pages 27 to 31 of the relevant report; and, as my hon. Friend the Member for Hove said, the rights of victims in the UK are currently a matter of concern and, at times, controversy.
Finally, if this needs saying at all, we ask the Government to consider long and hard the views expressed in this debate before deciding whether to opt in.
Mr Kenneth Clarke
It is a long time since I have taken part in a debate on the Floor of the House on any European subject that was completely free of any controversy. [Interruption.] Certain Members were not here. We all congratulate the Chair of the European Scrutiny Committee, the hon. Member for Stafford, on selecting the measure for debate, because we all agree on the great importance of giving better protection to victims of crime, not only in this country but across the European Union.
Mr Clarke
I will not weigh up the issue of whether Stafford has lost or gained, or whether Stone has benefited or been deprived, but I enjoyed the debates on the Maastricht treaty. We were not quite as close on that occasion as we are on the directive.
This is an extremely important subject, and there is general agreement that the framework agreement of 2001 is not adequate and should be improved, which is the objective of the Commission’s documents. The proposals have received extremely widespread support, and were movingly supported by Members whose constituents had been adversely affected. The hon. Member for Liverpool, West Derby (Stephen Twigg) cited the case of Mr and Mrs Dunne, and a constituent of my hon. Friend the Member for Ipswich (Ben Gummer) was murdered in Spain. The hon. Member for Carshalton and Wallington (Tom Brake) discussed difficulties that he had encountered. As I said at the beginning of our debate, we are trying to raise European standards on the issue because many British citizens go abroad and their families would benefit if minimum standards—and we hope very adequate standards—were in place throughout all member countries.
It was claimed that that could be achieved by bilateral agreements with other member states. With respect, I do not think that that is practicable. The notion that bilateral agreements have to be negotiated with 26 EU member states, where the tradition of supporting victims is variable and in some cases far below that in the UK, is not the best way to proceed. I was urged by other speakers to support the Commission and the Hungarian presidency’s Budapest declaration to see what we can do to strengthen support for everyone.
Reference was made to the work of Louise Casey, the victims commissioner, who shares the views of my hon. Friends and of the hon. Member for Liverpool, West Derby about the importance of considering the problems experienced by bereaved families. Victim Support, the biggest organisation in the field of victim support, supports the proposed directive, and it has urged the Government to take a constructive approach to it. It was said that its funding had been cut, but we have responded to the opinions expressed by the victims commissioner. We need to make sure that specialist, targeted support is available for vulnerable victims. Many hon. Members have been victims of crime—probably, almost everyone—but people do not always need counselling and support afterwards. Bereaved families, however, are a particular concern of Louise Casey, who has produced a report on the subject. We have given extra support to specialist services for bereaved families and victims of rape and sexual assault. More targeted support is required. We have a code of practice in this country that also needs to be revised and improved in the light of experience, and everybody is pressing in the same direction on that.
The hon. Member for Stoke-on-Trent South (Robert Flello) was pretty supportive of the proposals before us. Like my hon. Friend the Member for Stone (Mr Cash), he talked particularly about protection orders. The idea of mutual recognition of protection orders throughout the European Union is very valuable. These orders are usually given when someone is being harassed, often by a husband, partner or spouse with a history of domestic violence. If we do not have mutual recognition of the orders, the consequence is that every time anybody travels in Europe, they are obliged to try to get a fresh court order in the area where they are then living and give evidence again about the same experiences. Where possible, we should support this move. We have already opted into the criminal law directive on the subject, and we will do so on the civil order once we have scrutinised it to make sure that the two will work together and that particular burdens are not put on us.
My hon. Friend the Member for Stone talked about the possible resource and administrative implications for this country. I do not see any insuperable problems in the proposals, but we will obviously have to scrutinise them in detail because we cannot accept unnecessary extra resources or administrative burdens being demanded of us. That is highly unlikely because we are so far ahead in the field compared with most other member states, but we will bear that concern in mind.
Sentencing Reform/Legal Aid
William Cash Excerpts(13 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Clarke
That is just a very broad-brush defence of what the hon. Gentleman believes is the need to carry on paying £38 a head per taxpayer for the current legal aid system. Of course some legal aid is absolutely essential—crucial—to the liberties of our subjects and it is one of the standards of our society that we provide legal aid for people in extremis who would otherwise have no means of urging their cause. We have this grand, across-the-board system that finances what we can sometimes see is an inferior way of resolving disputes if we look for better methods of doing so. That will apply in Birmingham as elsewhere. The previous Government knew that the system had to be reformed; they simply could not make up their mind about what they were going to do to reform it. We are making some very well-considered proposals, which have been consulted on and thus modified to a certain extent, for getting the system back to a sensible size.
Mr William Cash (Stone) (Con)
The Lord Chancellor said that he had been personally impressed by the representations of the senior judiciary. Given that they said it would not be right as a matter either of principle or of practice to go beyond the maximum discount of one third, who are the wishy-washy liberals who have induced this row and all the fuss and problems that we have witnessed in the press over the past few weeks?
Mr Clarke
We did have quite a lot of support and it was not all from wishy-washy liberals. We also had some opponents who opposed the policy for reasons that I completely disagreed with. I was impressed by the input I got from serious people in the criminal justice system who are all used to discounts for early guilty pleas. Anyone who has ever had anything to do with criminal justice knows that there has always been a discount for pleading guilty early. The public do not know that and they do not like it when they are first told it, but there are good reasons for it. However, a reduction by half proved to be too much and I could not find any other way of resolving the issue and getting over the undoubted difficulties, so if there are any bleeding-heart liberals left who still think we are going to have a reduction by half, I am sorry to disappoint them, but at least my hon. Friend and I are now agreed on where we are.