(Clause 1, any selected amendments to Clause 2, relating to fighting cross-border crime; justice; policing; human trafficking and asylum and migration policy)
Considered in Committee.
[Sylvia Heal in the Chair]
The Treaty of Lisbon
Question proposed, That the clause stand part of the Bill.
Clause 1 defines the treaty of Lisbon for the purposes of the Act. The definition of the treaty of Lisbon set out in clause 1 is the full title of the treaty agreed at the intergovernmental conference in Lisbon on 13 December 2007. That is the factual, legally correct definition of the treaty. Parliament must be absolutely clear about what treaty the Bill that it is asked to approve deals with.
Will the Minister give way?
Of course. The Minister may be right in saying that that is what the treaty states on the face of the Bill and on the face of the treaty. However, that is not what is being done. The treaty is not, as the Government keep saying, an amending treaty. It is a treaty which merges the existing treaties with amendments—significantly different, with huge implications for the way in which the European Union will be conducted in future.
It is not my intention to engage in a detailed debate about the processes, the themes or the amendments. We shall have ample opportunity to discuss the amendments on subsequent clauses.
Clause 1 simply defines the Lisbon treaty. It is a question of factual accuracy, without which the Bill lacks legal certainty. We should be debating the substance of the treaty.
Because of the limited time that we have to deal with amendments to this important part of the treaty, I shall not dwell excessively on clause 1, not least because we argued in great detail on Second Reading why we believe that the treaty of Lisbon is, in effect, the EU constitution under another name. I shall not reprise that entire debate tonight, save to place on the record, beyond peradventure, our belief that the Lisbon treaty is the renamed EU constitution, and that the powers brought forward are effectively the same. We do not want to let clause 1 go without putting that on the record in Hansard tonight.
I repeat what I said in an intervention to the Minister. The new Union that is created by the merger that I described earlier will take over legal personality from the European Community, with very significant constitutional impact. This, therefore, is a fundamental change of the kind that fulfils the criteria for the Government to hold a referendum. That is all I need to say at this stage, but it is fundamental to the consideration of all that follows in these proceedings.
The reason why the clause should not stand part is that the Government have so far failed to explain how the treaty differs in any particular in the effect that it will have, compared to the effect that the constitution would have had. Can the Minister give a single concrete example to show how the implementation of the Lisbon treaty will result in a different effect from that of the constitution?
Following on from the remarks of the hon. Member for North Essex (Mr. Jenkin), it is clear from the previous debate that there are four distinct areas in which the Lisbon treaty is different from the constitutional treaty—for example, in the area of justice and home affairs—including in its effects. As we discussed in the debate, if we have an opt-in—
Order. That is not the subject of the clause 1 stand part debate.
Question put and agreed to.
Clause 1 ordered to stand part of the Bill.
Addition to list of treaties
I beg to move amendment No. 214, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 1, paragraph 51, replacement Article 35 TEU, relating to jurisdiction of the European Court of Justice over police and judicial cooperation in criminal matters; and
With this it will be convenient to discuss the following: Amendment No. 132, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 63, replacement Title IV TEC (TFEU) relating to an area of freedom, security and justice; and
Amendment No. 133, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 64, replacement Chapter 1 and Articles 61 to 61I TEC (TFEU), general provisions relating to an area of freedom, security and justice; and
Amendment No. 207, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 64, inserted Article 61D TEC (TFEU), providing for a standing committee on internal security; and
Amendment No. 208, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 64, inserted Article 61G TEC (TFEU), providing for measures to ensure administrative cooperation between national departments and the Commission in the area of freedom, security and justice; and
Amendment No. 136, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Chapter 4 and Articles 69A to 69E TEC (TFEU) relating to judicial cooperation in criminal matters; and
Amendment No. 8, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Article 69A, TEC (TFEU), relating to judicial cooperation in criminal matters; and
Amendment No. 9, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Article 69B TEC (TFEU), relating to the definition of criminal offences and sanctions; and
Amendment No. 212, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Article 69D TEC (TFEU), relating to Eurojust; and
Amendment No. 10, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Article 69E TEC (TFEU), relating to the European Public Prosecutor’s Office; and
Amendment No. 213, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 68, inserted Article 69F TEC (TFEU), relating to police cooperation; and
Amendment No. 137, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 68, inserted Chapter 5 and Articles 69F to 69H TEC (TFEU) relating to police cooperation; and
Amendment No. 11, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 68, inserted Article 69G TEC (TFEU), relating to Europol; and
Amendment No. 216, page 1, line 12, after ‘excluding’, insert—
‘(i) Protocol on Transitional Provisions, Article 10, paragraphs 3, 4 and 5, relating to Acts of the Union in the field of police cooperation and judicial cooperation in criminal matters; and
Amendment No. 26, page 1, line 13, after second ‘to,’ insert—
‘(i) the area of freedom, security and justice; and
New clause 4—Protection of existing police and criminal justice obligations—
‘(1) Before the expiry of the transitional provision included in Article 10 of the Protocol on Transitional Provisions, the United Kingdom shall notify the Council that it does not accept the powers of the European Union institutions described in Article 10(1) of that Protocol over acts adopted before the entry into force of the Treaty of Lisbon.
(2) In this section, “the Council” means that European Union institution founded on Article 16 of the Treaty on European Union.’.
New clause 7—Disapplication of the legislative procedure in relation to justice and home affairs—
‘Notwithstanding any provision of the European Communities Act 1972, nothing in Articles 68 to 89 of the Treaty on the Functioning of the European Union shall be binding in any legal proceedings in the United Kingdom and shall not form part of the law applicable in any part of the United Kingdom.’
I do not intend to rehearse yesterday’s arguments about the business motion, which the House debated in some detail. However, we acknowledge the Government’s business motion today, which amended the proposed allocation of time from four and a half hours and one and a half hours to three and a half hours and two and a half hours. The Minister knows that we argued for at least three hours and three hours, but the today’s motion was a move in the right direction, given the large number of amendments that we have only two and a half hours to debate.
I noticed earlier when we were debating the motion a number of Back Benchers who were keen to speak but who were barely able to contribute at all. I particularly noted that my hon. Friend the Member for Stone (Mr. Cash) spoke for 30 seconds, which I wish to nominate as the shortest ever speech in the House of Commons. I make the point to the Minister that a number of Back Benchers who are experts on the subject were not able to speak in the earlier debate. I hope that the Front-Bench speeches will be relatively brief, to allow the maximum number of Back-Bench contributions. I shall do my best to abide by that self-denying ordinance myself.
The effect of our amendment No. 214 would be to undo one of the most important and damaging changes contained in the Lisbon treaty, which is the EU constitution by another name. The current article 35 of the treaty on the European Union limits the jurisdiction of the European Court of Justice over the extremely sensitive area of criminal justice and co-operation on policing—all areas where the EU’s powers are considerably extended by the treaty of Lisbon.
Until the time of the EU constitution, it was effectively a matter of cross-party consensus that it was vital that the powers of the European Court of Justice should be limited in that way. As Tony Blair said just before he became Prime Minister,
“we restate our agreement to justice and home affairs remaining outside Community competence”—[Official Report, 16 December 1996; Vol. 287, c. 617.]
That was for good reason. As the European Scrutiny Committee noted in its latest report,
“the powers of the . . . ECJ are considerably increased when matters move from the Third Pillar to the First . . . the ECJ acquires jurisdiction, both to entertain such infringement proceedings and to interpret measures adopted at Union level. In respect of the matters covered by such measures, and while Union membership subsists, the national courts and parliaments are no longer the ultimate source of law.”
That is a profound change. Over time we would see current and future EU measures subject to interpretation by the European Court of Justice in this area. We believe that it would not be long before important parts of our criminal law were potentially superseded by a body of European law. Notwithstanding our opt-in, those familiar with the proposed measure in minimum standards in criminal proceedings will also be familiar with how initially attractive proposals can, with amendment in the negotiating process in the EU, become distinctly less attractive. They would be joined by extensive new legislation dealing with the fundamentals of our criminal justice system.
I am following carefully my hon. Friend’s remarks about changes in our criminal law system. Does he share my concern and the concern of many of our hon. Friends that the jury system, which has been so important to this country for so very long, will possibly be attacked and may eventually disappear, unless we are very careful?
I have heard that argument made in some quarters and I thank my hon. Friend for raising it. On this issue, the collapse of the third pillar into the first pillar is a matter of profound significance. I hope that if he is lucky enough to catch the Chairman’s eye, my hon. Friend may develop that argument further, not least because we would like to hear the Minister’s reply.
The areas within criminal procedure to which I was referring include victims’ rights and the mutual admissibility of evidence. The Government put forward objections to the scope of those powers when they were first included in the EU constitution, but then dropped their objections with no explanation.
Then there are the new EU legislative powers to make laws on the minimum definition of crimes and their penalties in eight areas: terrorism; trafficking in human beings and sexual exploitation of women and children; illicit drug trafficking; money laundering; corruption; counterfeiting of means of payment; computer crime; and organised crime. Again, the Government made reasoned objections to the list, but those were dropped without explanation.
Under the treaty, all those new areas of legislation would come under the jurisdiction of the European Court of Justice. That would bring to an end the intergovernmental nature, which we strongly support, of EU co-operation on the area. It would represent a major transfer of power to the EU and severely diminish Britain’s control over its criminal justice system. That is specifically why we tabled the amendment, and I am delighted that it was selected to lead the group.
My hon. Friend referred to human trafficking. Is he aware that the Council of Europe and its 47 members govern the policy on human trafficking? I have just come from an all-party group meeting at which the chief executive of the immigration service said that he saw no advantage in the Lisbon treaty in respect of improving the human trafficking situation.
My hon. Friend has raised an important point. My understanding is that the convention against human trafficking is, as he says, a Council of Europe document, rather than an EU document per se. I also understand that the Government have not ratified that convention. It seems odd that earlier, during the debate on the motion, the Home Secretary was praying that agreement in aid; on further examination, it turns out that the Government have not ratified it. That seems a curious way to make an argument and I shall be interested in what the Minister says about it when he responds to this debate.
I said that I would attempt to be brief, so I turn to some of the other amendments. Amendment No. 207 would remove the new committee on internal security, whose full scope is yet to be determined and which the non-governmental organisation Statewatch has described as an EU interior ministry. Perhaps the Minister will have a different view of the committee’s role, but it would be helpful to hear from the Government what they believe the Committee is designed to do; its role is certainly not made clear in the text of the treaty. If the House is to assent to it tonight, we will want to know what we will be signing up to. Will the Minister explain exactly what the committee is designed to do? From the treaty text, that is not clear.
Amendment No. 208 would remove a provision that could leave Britain with worryingly little control over very sensitive information. It provides for administrative co-operation to be by qualified majority voting, but protects our rights with regard to sensitive data. Amendment No. 8 would remove the unnecessary and extensive new EU powers over some of the basics of our criminal justice system, such as criminal procedure, to which I referred earlier. I remind the House that the Government objected to the clause in its current form as unacceptable because, in the words of their counter-argument,
“the ‘definition of the rights of individuals in criminal procedure’ would cover almost any aspect of criminal procedure during an investigation, prosecution and conviction. It is essential that this article is restricted in scope and is made subject to unanimity.”
That view was absolutely right; our amendment would give effect to Government policy as it stood only a few years ago, before the Government caved in on that important matter.
Amendment No. 9 deals with the extensive increase in the EU’s ability to make laws on those other areas of criminal justice that were similarly unsuccessfully opposed by the Government during the negotiations. Amendment No. 212 would remove the extensive new powers given to Eurojust, in particular the right to initiate investigations—powers that the Government again strenuously opposed. Amendment No. 10 would remove the basis for a European public prosecutor—a provision that, again, the Government opposed absolutely. The Government amendment at the convention explained that:
“We are firmly opposed to establishing a European Public Prosecutor. Unanimity does not mean that this article can be accepted.”
We agree: the article is unacceptable. Amendment No. 213 would remove the considerable extension of EU control over policing, including the right to legislate on common investigative techniques in relation to serious organised crime. Amendment No. 11 would remove the extension to Europol’s powers; those extensions were opposed by the Government during the negotiations on the EU constitution, whose text is reproduced here.
Finally, amendment No. 216 would remove the extraordinary article in the protocols that lays this country open to what in effect is a fine if it decides that any provision to which we have signed up has become unacceptable when it has changed from an intergovernmental to a community measure.
The European Scrutiny Committee, whose Chairman made a thoughtful speech that will bear reading again by all Members of this House, has said that
“we do not understand why the UK did not interpret the red line on protection of the UK’s position in a firmer form by insisting on a provision which would have preserved the effect of existing EU measures in relation to the UK…This would have ensured that the UK would keep what it now holds and would more effectively have protected the UK’s interests. It would have been open to the UK to keep its existing EU measures in their present form indefinitely as an alternative to opting in to a measure which would be subject to the enforcement powers of the Commission and the jurisdiction of the ECJ.”
We Conservatives share the European Scrutiny Committee’s lack of comprehension on that matter—and it is a Labour-led Committee with a Labour Chairman. With the Committee, we note that Denmark’s protocol is far superior to ours; that point was made by the Committee’s Chairman. The protocol that applies to the United Kingdom is not as strong and does not give us the protection that we need. The Home Secretary talked about a negotiating triumph; why did we not negotiate or sign up to the Danish protocol? Her argument that we had enjoyed a triumph would still not carry, but at least there would be more meat behind it. In fact, the Government opposed 40 measures in this area at the convention, but they managed to get only two changed. We argued on 40, we changed two and we lost 38; I defy any Member of any party in this House to justify that as a negotiating triumph. What would we have called a loss?
All those areas, vital to our sovereignty and essential to democratic accountability, need to be debated this evening as best we can in the time that we have. The Government largely objected to them when they were first proposed; they were unnecessary and objectionable then and they are so now. No fact on the ground has changed. Our amendments would give effect to long-standing cross-party British policy upheld by the Government at the treaties of Amsterdam and Nice and for which they themselves argued in the European constitution. In a sense, we are trying with our amendments to put right the Government’s mistakes. I commend them to the House.
I want to make a few brief comments on the office of the European public prosecutor, to which amendment No. 10 relates. It is what singularly troubles me about the entire provisions.
It may be helpful to remind ourselves of the history of the institution’s creation; it is one of the most contentious. In the very first draft of the original constitution, the office was not mentioned at all. It was then inserted with a clause saying that it could be introduced by unanimity in 10 years’ time. A certain group of people, driven very much by political motives, needed to have it down as a marker. The political debate on the office was about whether it should have competence over serious crime that had a cross-border element on the one hand, or over serious or cross-border crime on the other.
We need to understand the politics. The UK Government have been consistently and deeply opposed to the office’s creation. In the original document, the safeguard, which the British Government thought sufficient, was unanimity. As I understand it—I will be happy to be corrected on this—the current provisions are much worse. It is not done on the basis of unanimity; it allows the arrangement to be created by a kind of enhanced co-operation. That means that just like the Prüm agreement, which allows for police co-operation, a small group, irrespective of the wishes of the majority, can set itself up and then turn to the others and say, “It’s a fait accompli, it’s here, it’s no longer worth arguing about.” My main reason for opposing most of the justice and home affairs provisions is not that they move out of the third pillar, but the existence of the possibility of the creation of this office, which has no other purpose than political.
Let me start with the point raised by the hon. Member for Birmingham, Edgbaston (Ms Stuart). Having looked at the efforts that the European Union has, over the years, put into trying to deal with fraud—particularly given the embarrassment of year in, year out failing to have its accounts signed off by the Court of Auditors—it seems to me that one very important role for the European public prosecutor is to be able to give some attention to those issues, which have not traditionally been attended to by national prosecutors because they have not been thought of sufficient importance. Until several of the member states see that it is crucial to provide adequate paperwork to the Commission, we will have the continued problem, now in its 13th year, of the Community’s budget not being signed off as a true and proper—
I want to be clear about this. Is the hon. Gentleman suggesting that a prosecutor at European level should have the right to investigate over and above the authorities of the nation state—that as long as the issue is in some way loosely connected with European funds he or she should have the right to take precedence over the existing status of the nation state?
It is not a question of taking precedence but of doing something that is not being done. This is an elision that is very familiar to those of us who have dealt with Eurosceptic concerns over the years. We must not elide what is a capability and what then replaces something going on at the national level. The EU can have a competence, but that does not mean that it has an exclusive competence. The ability to investigate a fraud against the EU budget seems to be an important one which we know has not been followed through.
It is a very simple question. Is the hon. Gentleman saying that a European prosecutor would have the right to investigate European so-called frauds within the United Kingdom over and above the powers that are given to the United Kingdom Government? That is all I want to know. Is this role going to take precedence over the involvement of British Ministers?
I said very clearly that it is not a question of taking precedence over anything that is done by our authorities. The reality is that we are one of the member states that has pursued matters of fraud against the EU budget over the years, as we did, for example, in relation to some of the cross-border scams between Northern Ireland and the Republic of Ireland. It is a question whether there should be a capability to pursue fraud against the EU budget. The hon. Lady is attempting to have it both ways. It is of course possible to say, “Yes, this is outrageous—here is money that is being inadequately spent and inadequately monitored by the European Union” and then on the other hand to say, “No, we cannot have a means that will allow us to deal with it.”
The issue that the hon. Gentleman has not addressed concerns the source of justice within a nation state. Either justice is controlled through Parliament, through the office of the Attorney-General and the national courts, or there is a supranational power with power to intervene. That is precisely what he was describing, although he could not quite bring himself to admit it. I ask him to be clear about this, because what he is really talking about is a federal model with a federal prosecutor.
Absolutely not. There is a fundamental difference, which the hon. Gentleman does not seem to have taken on board. We are talking about a prosecutor, and a prosecutor is still somebody who has to make a case in a court, and that court would be a court of the member state. Therefore, all the normal judicial process that we would guarantee here in the UK would be present.
Prosecutions in this country are brought by the Crown. Nobody else brings prosecutions. The Crown is the font of justice and brings prosecutions against individuals who transgress the law. The hon. Gentleman is talking about a supranational authority bringing prosecutions in our court. That is a seismic change in our constitutional arrangements, and I wish he would accept that and then argue it.
I think the seismic change would be if there were any change in the arrangements for trying an offence. If there is a question of prosecuting an offence, that still goes before a jury and still goes through the normal process. That is absolutely fundamental.
Having given way on several occasions, let me turn to amendment No. 214. Just like the hon. Member for Beaconsfield (Mr. Grieve) in the previous debate, the hon. Member for Rayleigh (Mr. Francois) completely failed to take on board exactly how these provisions would work. As they conceded, the UK can choose whether to opt in. The UK will clearly not opt in to measures that we would not want the European Court of Justice to opine on. That is a stronger position than the constitutional treaty provided for. If the UK does not want to be involved in a measure that the ECJ will have no jurisdiction over, we have a very clear option not to do that.
The second point, which the hon. Member for Rayleigh did not take on board at all, concerns what would happen if we made a mistake—as he would put it—and elected to enter into this process, but then it somehow went wrong during the negotiations and when we found we no longer wanted to participate, given how the negotiations had gone. In the Lisbon treaty, we have very clearly, for the first time, the emergency brake procedure whereby the matter goes to the European Council. That is fundamental. Article 9B(4) says:
“Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.”
Consensus means unanimity. [Hon. Members: “It doesn’t.”] It does. There is an appeal process. If a member of the European Council declares that it is not in line with the negotiations—[Interruption.] I am sorry; this is very clear. If a member of the European Council says that it does not agree, it is not possible to proceed by consensus and under the treaty, for the first time, it is absolutely clear that that provision will then fall. There is a fall-back. It is not necessary to decide at the beginning of the negotiation process—one can go all the way through that process and then have the emergency brake and go to the European Council, where if there is no consensus—if, for example, the British Prime Minister says, “No, I’m sorry—I cannot accept this”—the matter does not proceed.
I must be misunderstanding the English language. Surely a consensus is the view of the great majority of people present, but it can exclude one person.
Why not call it a veto then?
That is simply the way that it has always been described as regards the European Council. Let us remember that the European Council makes its appearance in these treaties for the first time: it has until now been an informal body. In effect—Conservative Members should take this on board—the treaty incorporates, for the first time, de Gaulle’s empty chair policy and Luxembourg compromise in the body of European law; that is why we are happy to support it.
That goes to the centre of much of our uncertainty and doubt. We have a language too. Consensus has one meaning, and unanimity has a distinctly different meaning. It may be that the hon. Gentleman’s years of toil in the European Union and Brussels—
He went native.
It may be that those years so nativised the hon. Gentleman that he cannot see the distinction in our written forms between consensus and unanimity. We are talking about something now that is terribly important and sensitive in terms of our whole legal system. This is not about smearing words, or saying them. It is not about his personal interpretation—the interpretation will not be made by him, in the end, but by others and ultimately by a Court that will often be beyond our control. That is what is germane to this argument. It is too easy to trivialise it by trying to maintain the new definition for the English dictionary that he has conceived for the purpose of this debate.
I am grateful for that intervention, because the hon. Gentleman makes it clear that the provision is new and that it has not been in the treaties. Indeed, it was not in the constitutional treaty. It is a fundamental change between the constitutional treaty and the Lisbon treaty. His party has been attempting to say that there are no basic changes, but there are important safeguards that are key.
May I help the hon. Gentleman on the definition of the word “consensus”? At the conclusion of the Convention on the Future of Europe, which I and the hon. Member for Birmingham, Edgbaston (Ms Stuart) attended, the constitution was adopted by consensus—that was the phrase that was used—even though I and eight other members had tabled a minority report and explicitly rejected the constitution. Despite that fact, the constitution was presented to the European Council and adopted by the Council, again by consensus. I have no faith in European decision making. When it suits them, they turn opposition into consensus. That is an historical fact, not a speculation.
The right hon. Gentleman is well versed in these issues, but despite his point he does not yet have the same status as a Head of Government. Throughout the operation of the European Council, whenever it has made decisions by consensus they have involved the agreement of everybody. As the right hon. Gentleman will know, as a keen student of EU history, that began with General de Gaulle’s empty chair policy and the famous Luxembourg compromise. That compromise, on the French part, determined the ability of one of the member states to ram on the brakes when it thought that a matter was of vital national interest and to say, “No, we will not allow that to go through.” The fact that the provision has now been incorporated in the treaty goes directly back to the set of events that involved General de Gaulle and the empty chair policy. Given the history, I find it completely inconceivable—although it is totally in line with Conservative Members’ usual attempts to build up paranoid ideas of what might happen—that the circumstances would develop in such a way.
We will oppose the amendments.
The hon. Gentleman’s argument is not carrying the House with him. He might have been able to carry Liberal Back Benchers with him if a single one of them was here to debate fundamental changes to our legal system. Unfortunately, not many Liberals have turned up. In their absence, will the hon. Gentleman admit that even an opt-in emergency brake combination is weaker than a veto, because with a veto we can just say no?
The reality is that the provision is substantially stronger than what was proposed in the constitutional treaty. The hon. Gentleman has to accept that we have here a major change compared with the constitutional treaty. If he wants to play the numbers game, I am happy to count Back Benchers and the support provided for Front Benchers. I have been here throughout the day. There was a point at which there was such enthusiasm for the line that the Conservative Front Benchers were taking that there were precisely nine Conservative MPs in the Chamber. If the hon. Gentleman thinks that he is somehow energising his Back Benchers, all I can say is, “Dream on!”
Will the hon. Gentleman give way?
No, I will not give way again. I end by repeating that we will not support the amendments.
I enjoyed the contribution of the hon. Member for Eastleigh (Chris Huhne). This Chamber lacks spontaneity, imagination and colour, and when we reach the point where we have fairy tales we should welcome them—so long as we are not making legislation.
The slight difficulty with the amendments is that they are central to what we are debating. They are not jokes; they are not an amusement and they are not just about the interpretation of the word “consensus”. They represent a series of fundamental decisions on the future of justice in the United Kingdom. We ought to say to the Minister and to those who have followed the line that the changes are minor that it has taken us a long time to build a system of common law in this country. It is essential to our courts that the laws should be easily understood by the British people and by those who appear in the courts to defend and prosecute. People should understand the systems of appeal and the ways in which their rights can be protected if, for any reason, they are brought to court.
I believe that this evening we are talking about enormous changes, and we ought to be honest about that. We ought not to pretend to the British people that they are minor administrative measures or a minor reorganisation. What was the lovely word used by the hon. Member for Eastleigh? We ought not to pretend that the changes are an “elision”—what a wonderful word—off into some other side track. The changes are not that.
I am saddened that the Minister has not made it clear throughout the debate—he had the opportunity to do so early on—that having been defeated, the British Government chose to vote against the proposals. That seems simple. If they had put forward their objections and spelled them out sensibly and constructively, and had then been defeated by that consensus, they should have registered a vote to the effect that the reason they had taken such a line was that it was what was demanded by our Parliament and our system of justice. So far, I have not heard those arguments or any refutation.
I know that it will come as a surprise to the Minister, but I question what Opposition. Members say. I question them as much as I question my Ministers. The arguments that have been put forward from across the House are about the future of our justice system. We are debating not administrative changes or a reorganisation of the Labour party into different wards, but the future of the rights of UK citizens. I happen to think that that is quite important. I demand of my Government, in simple terms, that they explain why, if the point was so fundamental when they first objected, it is not fundamental now. Is it sufficient to say, “I have been defeated”? I suppose that it shows a want of imagination if I say that I am frequently defeated in this Chamber, but that does not stop me. I believe that we have the right to know.
I should be delighted, as the hon. Gentleman has been a real asset to the debate.
I am grateful to the hon. Lady. I agree that we are talking about the rights of British citizens. However, does she agree that those rights are just as important when citizens are outside the country as when they are here? After all, this House has voted in the past to go to war to defend the rights of British citizens abroad. We now have the ability, in part as a result of this treaty, to ensure that there are minimum legal standards for the three quarters of a million British citizens who live in the EU. Does she not agree that those people have rights as well?
I am convinced that the UK has the right to defend its citizens wherever they are. From the age of 16, I lived in perhaps eight or 10 different countries. I had no difficulty conforming with the laws of whichever society I was living in. If I contravened those laws, I expected to pay some penalty, but I also expected, if needs be, to be able to ask the UK Government to come to my defence. However, none of that gives me the right, in this House, to vote away the fundamental rights of the British people.
The hon. Lady has touched on something that all of us in the Chamber understand. The importance of our justice system is that everyone in this realm, this United Kingdom, who comes within its jurisdiction is, one way or another, able to grasp what the law is. We expect, through the aegis of this House of Commons, to be able to defend our historical and traditional rights under the common law. They go back nearly a thousand years, and they are essential to our very sense of liberty. That may not weigh so strongly with the near-leader of the Liberal Democrat, but it is profoundly important to me and my colleagues.
We understand our legal system and trial by jury, but they are not common to the whole of Europe. We are trying to understand why the Government are prepared for the possibility that the process of consensus will—or may, or could—cause the changes proposed in the treaty to come about. That is why these debates are important—as my honourable friend, the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), has said.
I am grateful to the hon. Gentleman. His commitment to the rights of UK citizens is clear in everything that he says. When we are elected to this House, we have one simple responsibility—to make the law. We try to do that as well as we can: when we make mistakes, we examine what went wrong; when we pass bad laws, we try to alter them. That is what we who are elected to this House do, and I do not accept even the concept that a supranational prosecutor can tell the UK Government that they have not prosecuted EC law sufficiently.
To me, that is simple effrontery. I sat in the European Parliament for year after year, and I never heard the Commission take the question of fraud seriously.
No, I will not. If we seriously think that the proposals that we are considering will improve our system of justice, we are misleading ourselves but, more seriously, we are most certainly misleading the British people.
If the Government do not accept the amendments, we need to know why. Why did the Government not maintain their objections to the treaty? Why did they not vote against some of the proposals? Why did they not promote very clearly the benefits of a common law system, and make it clear that it cannot be married with the Napoleonic code without enormous damage being done to the fundamental rights of the British people?
If the Government cannot answer those questions, we should not let the legislation proceed.
Amendments Nos. 132, 133, 136 and 137 in this group were tabled in my name. They are supported by 20 fellow Back Benchers and many others in the Conservative party. Moreover, we have now established a rapport with our Front-Bench colleagues, which means we are working very cohesively. There might be some differences here and there, but we are basically all together and our clear mission is to explain—in very difficult circumstances and according to an impossible timetable—what the introduction into UK law of this extremely opaque treaty will mean.
The treaty has been deliberately devised to be as hard to understand as the Eurocrats and the Government can make it. We went into that yesterday, but it is an affront in terms of time and of management. It is very nearly impossible in the time available to go into what is a substantial series of arguments. If I had more time, I would want to go into those arguments further to illustrate to the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), who made such a sound point, and other hon. Members, the impact that the treaty’s provisions will have on the rights of the people of this country, individually and collectively.
I referred to the distinction between the operation of our legal system and those of other European countries. There are 27 member states and they each have their own distinctive legal system. It would be completely impossible on such an occasion to make a comparative legal analysis of the differences, but they do exist, and they are very important to the people of those countries and to the European Union as a whole. For example, as I said in the previous debate, judges in the French system are appointed politically. It may seem odd that we should mention that. They would be surprised if anyone suggested that they should not be appointed politically because their system has been conducted in that way for generations.
Accompanying that process is a state prosecution service. People go straight into that service; they do not undertake the prosecution of criminal offences as members of the Bar, as do my hon. Friend the Member for Beaconsfield (Mr. Grieve) and other Members who are learned barristers. In France, there is a completely different system. I had experience of the code civil recently and it is difficult to work out which procedures prevail in it. They are written down in a constitutional manner and were brought forward, as some have said before, under the Napoleonic code.
It is simply not possible to marry such a system with ours to get the sort of consensus to which the hon. Member for Eastleigh (Chris Huhne) referred. That is just rubbish. Without co-ordinating the laws into a uniform system, it would be impossible to apply similar criteria to each of the laws in the respective member states, or to say that the European prosecutor will be able to make a judgment on behalf of Europe as a whole as to what the tests should be of the prosecutions he initiates.
Each of the 27 member states has its own state prosecution service, or a separate such service as we have in this country. I could enlarge on that, but in a nutshell I am describing an exercise in comparative law. Some books and authorities have attempted to explain all that, but it does not get us anywhere as a legislature. That is the problem. An academic exercise, which in a way is what this debate amounts to, simply will not do. We are dealing with the rights of the people of this country.
It is difficult in the time available to do more than indicate the things that caused me concern and led me to table the amendments that were selected: amendments Nos. 132, 133, 136 and 137. I shall attempt to do so, and I shall try to be as brief as possible. I shall, however, have to reduce my carefully argued analysis into a truncated form. I am certain that I will not do the subject justice, but, given that justice has not been done to us in arranging the business, I hope that hon. Members will be indulgent enough to accept that it is simply not possible to do the job as well as one would wish.
The amendments deal with fighting cross-border crime, co-decision in the EU, qualified majority voting and the jurisdiction of the European Court of Justice over police and judicial co-operation. Article 61 of the Lisbon treaty states:
“The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.”
That introduces the question, which we shall consider later—I trust that we will have an opportunity to consider it properly and at some length—of “respect for fundamental rights”. The concept is casually thrown in to article 61, which goes on to consider endeavouring
“to ensure a high level of security through measures to prevent and combat crime,”—
I tackled some of those issues by referring to the differences between legal systems—
“racism and xenophobia”.
A definition of “xenophobia” is not to be found in the treaty. Nobody knows what it is, except through some sort of cultural assessment. There is no legal definition. We encountered that problem in the European Scrutiny Committee when we considered the European arrest warrant. I could go into much more detail, and those who are interested can read the report on the matter.
Then there is the operation of the European Court of Justice. As I have said, EU institutions will not take into account the special nature of British common law.
The term “xenophobia” has been applied by supporters of the treaty to its opponents. Would it be legally possible for someone who opposes aspects of the EU on principle to be guilty of a crime under the treaty?
If the fools who make such statements have listened to the arguments that those who have considered the treaty presented, they stand condemned by the stupidity of their words.
May I draw my hon. Friend’s attention to article 69B, which reinforces his point? It would give the EU the power to define criminal offences and sanctions—in other words, punishments—in new spheres, including organised crime. At the time, the Government rightly opposed that through an unsuccessful amendment because British law does not recognise a category of “organised crime”. It is not defined in our jurisprudence and we are therefore incorporating an alien definition into our judicial system through the treaty.
Absolutely. It will not surprise my right hon. Friend to learn that I have a lot of material on that. Again, I will not be able to go into the matter in detail, but article 69B states:
“The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure”—
we shall deal with that highly objectionable new procedure later—
“establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension.”.
We all want to be able to deal with the problems posed by international gangs and international crime but, as I said in an intervention on the right hon. Member for Leicester, East (Keith Vaz), the treaty provision is motherhood and apple pie. We all want co-operation to deal with international criminal gangs, but will they be operating just in the European Union? No. There are international criminal gangs that operate all over the world. It is precisely because what is wanted is a uniform legal system, at the expense of our common law system and our judicial processes, which are free from political interference, dual criminality and so on, along with a whole range of criteria, that we are insistent that there should not be the intention that lies behind the treaty. That is why we propose in my amendments to leave out the relevant words. That intention is to consolidate all the different legal systems and the legal criteria that are applicable to 27 member states, but the attempt will simply fail.
While my hon. Friend is on article 69B and the interesting phrase “offences with a cross-border dimension”, does he share my curiosity to know whether the Government interpret it as referring to a particular offence with a cross-border dimension or to all offences in the list in article 69B? Some of those offences may have a cross-border dimension, but the provision could include all such offences, whether there was a cross-border dimension to a particular offence or not. That could cover a huge range of criminal offences and bring European authority, through the Commission’s right of enforcement and, most importantly, the European Court of Justice, into the definition of offences, criminal procedures and the sanctions to be applied.
Absolutely. My hon. Friend is also a member of the European Scrutiny Committee, and we have looked into all such questions. The reason we found the proposals to be objectionable is basically that, as lawyers or politicians in this country, we apply definitions to words because we believe that there should be some exactness about whether someone has committed an offence or not. However, that is not how these other people operate—I say “these other people”, because I am afraid that they do not use language in their statutes in the way that we do. I do not see why we in this Parliament should be subjected to laws that are brought in by people who are inexact in their legislation and inexact in the criminal offences that are created.
It is just not good enough for the hon. Member for Eastleigh to burble on about European culture and the European dimension, as if there were not serious implications for his constituents. I bet my bottom dollar that they will not be happy at the idea of being subjected to the kind of judicial processes that are in mind under the treaty, and I bet that he is not explaining the matter to them, either, although that is another story. The eurocracy that exists, and of which he is a pre-eminent member, albeit a Member of this House, too—
Will the hon. Gentleman give way?
No, I will not give way. I am simply making a generalised point, which is that the significance of what is contained in the treaty is not known to the man or woman in the street in this country in the way they deserve to know it. That is what this Committee stage is about.
I should like to move on, although I am mindful of the time and will have to get through as quickly as I can. We have already dealt with the fact that there will be risks to British citizens. In response to the point that the hon. Member for Eastleigh made, I have recent experience of British citizens who were subjected to courts in Germany and France. Leaving aside the problems of translation, I could give him a dissertation, which I shall not give him now, on the sheer hell that they experienced, with serious consequences for their personal rights. They could not understand the proceedings and were not subjected to any procedure that we would recognise, and the whole process was a complete travesty.
On that point, one of the provisions in the justice and home affairs part of the treaty establishes minimum standards for defendants. I am sure that Conservative Members will remember the case of the British plane spotters who were accused of spying in Greece in 2001. That is an important example. As I said to the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), the rights of our citizens when they go to other member states are not insignificant, because 750,000 of them now live in other member states, and millions of us go abroad every year. Does the hon. Gentleman agree that it is important to have minimum standards, given the examples in Germany and France that he has just outlined?
Mutual recognition will take pride of place in the new Lisbon treaty; I could give the hon. Gentleman a dissertation on that as well. The plain fact is that mutual recognition—the principal point that lies at the heart of what the hon. Gentleman was fumbling towards—is part of the problem, because it cannot take account of the distinctions that exist between the different legal systems.
Does my hon. Friend agree that the hon. Member for Eastleigh (Chris Huhne) is trying to pretend that the treaty is about extending British law into the rest of the European Union, when in fact it will extend European Union law into British law?
Precisely. As I said in a recent debate, what we want is British law for British judges and British judges for British law. That pretty well sums up in a sentence what I think we should be doing with respect to the treaty. And we should have a British Parliament for the British people. That is the point.
The concept of mutual recognition has bothered the House before, and for very good reasons. It means that we must regard other legal systems as having the same standing as our own. We have only to look at the judicial processes in other countries, where one may be held in prison for many months while an investigation is carried out, to see systems that I would not naturally mutually recognise.
Absolutely. My very good friend summarises the position well. Indeed, that is what is bringing Conservative Members together. With the great and honourable exception of the hon. Member for Crewe and Nantwich, there are virtually no Labour Members present except the Minister. That is not a good sign when we are dealing with matters of this importance, and I think that the Minister ought to be looking thoroughly uncomfortable. In fact, he is, now.
I shall move on to amendment No. 133. Under the general heading of “Justice”, the treaty gives the European Council the power to define objectives for United Kingdom legislation on freedom, security and justice. Article 61A states:
“The European Council shall define the strategic guidelines for legislative and Operational planning within the area of freedom, security and justice.”
That is the European Council that the hon. Member for Eastleigh was prattling on about just now—
When I wasn’t fumbling.
The hon. Gentleman must take his medicine; he certainly deserves it.
I am not going to exempt the Minister from this, either. This is what he has agreed to:
“The European Council shall define the strategic guidelines for legislative and Operational planning within the area of freedom, security and justice.”
It cannot be right for us to be locking ourselves into this kind of requirement. In law, “shall” means “must”, and that relates to the law as applied by the European Court. There is no doubt whatever that we should reject this. The 1999 temporary European Council provided a programme setting out policy guidelines and objectives with a timetable for their achievement. Under the Lisbon treaty, the European Council is obliged to define guidelines for legislative operational action. That is a step up into the arena that we should reject.
Article 61B is another provision whereby “National Parliaments” are to be placed under a legal obligation to make sure that European Union police and justice comply with national authority. It provides yet another example of an obligation being imposed on national Parliaments. There is no need to go further into this right now, because we will deal with it later, but this obligation, which the European Scrutiny Committee has censured in its report by requiring that there should be no ambiguity about it, offends article 9 of the Bill of Rights. As I say, I am not going into that now, because we will hopefully have a proper debate later.
I would like to cite the article to which the hon. Gentleman has referred. Article 61B states:
“National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionaility.”
Is it not key to note here that the hon. Gentleman is looking a gift horse in the mouth? Surely this part of the treaty suggests that subsidiarity is a rather important principle.
I am delighted that the hon. Member for Eastleigh should walk into that one. The fact is that there is not one example that he or anyone else ever has or can give of subsidiarity being applied in practice since I described it as a con trick at the beginning of the Maastricht treaty debates all those 15 years ago. The fact remains that there has been no subsidiarity and there will be no subsidiarity.
I am sorry to disagree with the hon. Gentleman, but there is an example. One of the previous UK presidencies saw the animal zoo directive, which fell on the basis of breaching subsidiarity.
I am glad to hear of that one example. I am indebted to the hon. Lady for that revelation. At last I have heard one person give one example of one instance of subsidiarity—[Interruption.] Yes, a crucial one. In fact, the hon. Member for Eastleigh does not even do justice to his own argument, because the article refers to compliance with the principle of subsidiarity
“in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity”
and then it specifies “and proportionality”, which he did not mention.
That is what I said.
No, the hon. Gentleman did not say it.
The hon. Gentleman was not listening.
I most certainly was listening. I always listen to everything the hon. Member for Eastleigh says because it provides me with such a great opportunity to demolish his arguments.
At risk of revisiting old debates, subsidiarity is of course a double-edged sword. I have frequently seen subsidiarity prayed in aid by the Commission as a means of centralising power. It has argued that subsidiarity demands that power be exercised at the lowest possible level, which it concludes is at the centre. Thus it was argued that air traffic control, for example, should be centralised on grounds of subsidiarity.
I am delighted to hear that, but my hon. Friend has to be a bit careful here because subsidiarity is a theological concept, which was actually created or invented by the Jesuits. I was educated by the Jesuits, so I know all about this—[Interruption.] The principle regarding theology and hierarchy was exactly as my hon. Friend suggested. The whole object of the exercise was to demonstrate that whereas people should be allowed to lead their own lives in their own fashion at a certain level, they had to obey the highest level of the highest hierarchy, which is, of course, the Vatican from where the Pope speaks ex cathedra. It will not surprise anyone if I make an immediate analogy: just as subsidiarity leads to centralisation of decisions ex cathedra from the Vatican in the theological sense, so it will lead ex cathedra to what is decided by the European Court of Justice and the European Union. That is what it is all about.
Article 61C concerns the implementation of new measures to evaluate policies in areas of freedom, security and justice. Again, it requires the application of those provisions by qualified majority voting, and again it refers to member states being required
“in collaboration with the Commission”
—that wonderful word “collaboration”, with its resonances of the 1940s—to
“conduct objective and”
“impartial evaluation of the implementation of the Union policies”.
In relation to justice, article 61G states that the Council will
“ensure administrative cooperation between…Member States”
on police and judicial co-operation measures. That is another provision which, although I have not time to go into it in detail, raises serious points of objection. As for fighting cross-border crime, a European Union security committee will be set up to co-ordinate—that famous word—national police, customs and civil protection authorities. Apparently, it is proposed that the committee should focus on internal security. I regard that as, potentially, an extremely dangerous co-ordinating operation in the context of internal security and, no doubt, surveillance and all the other powers that will be involved.
As I said in an intervention yesterday, one of the things that worry me is that in the space of one or two lines in the treaty, we are legislating to require the people of this country to implement the law under sections 2 and 3 of the European Communities Act 1972, thus creating through a few lines and truncated proceedings the equivalent of many Bills which would normally undergo all their procedures in both Houses of Parliament. That is utterly outrageous.
Member states will be expected to surrender legislative initiative on border checks, asylum and immigration and judicial co-operation in civil matters.
One of the Government’s arguments for accepting this part of the treaty was that it would help to solve the problem of human trafficking, but our problem in this country is that we do not have secure borders to stop trafficking. From what my hon. Friend has said, it seems that the situation will get worse under the treaty, not better.
That is one of the reasons why so many of us believe that the European Union does not work. It is full of good thoughts, in the sense that the aim is to improve things. It is motherhood and apple pie. But when we examine the bottom line and the nuts and bolts—which is what Committee proceedings are supposed to be all about—one argument after another must confront the question of whether or not it will work. Is it right for this legislation to become part of our law and, through the European Communities Act, be imposed on the people whom we represent?
We simply would not put up with it if a Bill were introduced that contained three lines that simply stated that its contents would be an obligation on our constituents. There would be riots in the streets. The fact is, however, that that is exactly what is happening. I am not exaggerating when I say that: it is here on the pieces of paper that we are discussing. In a matter of a few lines, we are legislating and imposing obligations on our constituents. I fear they are not properly informed of that, because the best way in which to keep a secret is to make a speech in the House of Commons. They do not know what is going on, which is why I have repeatedly urged all my colleagues, and my party, to get out there and explain these matters with conviction and passion. If we do not do so, the people will not know what is going on and they will regret that later.
There is another provision defining certain criminal offences and minimum rules that would override United Kingdom criminal laws and sentencing procedures: article 69B. Again, I will not go into the detail on that. Article 69C addresses interfering in crime prevention beyond existing cross-border measures. Under the provisions relating to Eurojust in article 69D, the British judiciary will be required to submit to Eurojust interference in criminal investigations and there will be massive interventions in prosecuting serious crime.
Every aspect of the treaty requires detailed analysis, which we simply cannot give it tonight. The creation of the European public prosecutor has already been mentioned.
On article 69D, my hon. Friend spoke earlier about the occasionally sloppy language used, but it is sometimes interesting when the language is deliberately different. We had an exchange earlier about the role of the European public prosecutor’s office, which could only exercise the functions of the prosecutor in the competent courts of the member states in relation to certain offences, whereas in relation to Eurojust the provisions make it clear that there is scope for
“the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities”.
There is a distinct difference: one body can operate independently of national authorities, whereas the other apparently cannot.
I absolutely agree. My hon. Friend is a former shadow Europe Minister and he knows in detail about such matters, and I am grateful to him for drawing our attention to that provision.
Amendment No. 137 addresses policing. It is stated that EU policing measures will eventually be reached through enhanced co-operation. The number of such enhanced co-operation provisions has grown over time, as there is a notion that it does not really matter if member states are not in complete agreement about proposals because if enough states come together to create momentum, that will start off the process. The theory is that several member states agree to come together and then the others will be forced to join in later, because they will find that they have been outflanked as a result of the provision having been initiated by the member states who originally signed up to it.
These measures will affect police co-operation. I hear what some say about the fact that we will not have one uniform police system throughout Europe, but I see every indication of creeping competences in many different fields, which will carry with them issues to do with burden of proof and whether an arrested person will be given adequate opportunity to be heard. We know that brutality takes place in some police services elsewhere in Europe. Our system might not be perfect, but I would be a lot more comfortable if I thought my constituents were being legislated for by this House in a properly measured fashion. There is currently a great deal of argument in this country about whether it should be allowed for people to be held for 28 days or a different period. All I can say is that, in this particular context, the idea of giving increasing powers to a European police force to co-ordinate, organise and undertake investigations carries very serious dangers.
There are many other matters that I would like to discuss, but there simply is not the time to do so, as I know other Members want to speak. I tabled these amendments not as a point of hostility but as a point of clarity, and that is why I believe they enjoy a measure of support. I say that to my Front-Bench team as well as to other colleagues. It is essential that we legislate properly in this House. It is perfectly clear that the provisions that I have only been able to touch on in the limited time available should be left out of this treaty. They also make it clear that this treaty should be abandoned and put in the rubbish dump.
I shall be brief, because other colleagues wish to speak. I want to discuss criminal justice and court matters, so as I have to, I declare my interest as a Crown court recorder and part-time district judge.
We should be very proud of certain aspects of our criminal justice system. I am very proud that the criminal law in this country is made by this Parliament and by elected Members of Parliament who are accountable to their constituents if they get it wrong. I am proud of the fact that over centuries the common law has developed in this country. It has been developed by independent judges who are not afraid to take on the Executive from time to time. I am proud of the fact that when a citizen of this country walks down their high street, the police have limited rights. The police are individuals merely with a warrant, and they cannot step over the mark; if they do so, they are in difficulty.
I am proud of the fact that when a person is arrested their rights continue. I am talking about their right to bail; their right to a fair trial; perhaps their right to go before three magistrates in the town in which they live; their right to go before a jury—12 persons chosen at random from the community; and their right to have an independent judge begin his or her summing up by saying to the jury, “Members of the jury, in this case the burden of proof lies on the prosecution throughout and not on the defence, and it is a high standard of proof.”
I am also proud of the fact that in this country there are rights to legal aid and to appeal. There is so much in our current legal system that we have developed over hundreds of years. We are custodians of those rights and we throw them away at our peril. What are we faced with tonight? We can talk about subsidiarity, but I have never really understood that word and I do not think I understand it tonight. We are faced with the prospect of a sea change in our criminal justice system. We are faced with changes that will not happen tomorrow and which may not happen next year or in four or five years’ time, but if we are not ever so careful and if we do not guard these rights, the changes may happen in 10, 20 or 30 years’ time, and we should be ashamed tonight if we let them develop.
What could such changes be? Could there be a European public prosecutor? What absolute rubbish that would be. Could there be a European police force, Eurojust or Europol? What the devil do all those words mean? Who can convince me that any of this is better than what we have at the moment in this country? What sort of legal system would we have? It may be codified, but by whom? It would not be codified by people elected to this House. It would be an EU codified legal system. What might it do? It would mean saying goodbye to the jury system. All that could happen, and if it did, it would be arranged by people who are not accountable and who are not elected by the electors in my constituency or anywhere else.
Let us recognise tonight that we are debating issues of the greatest importance. We are left at the moment with a system in this country of which we are proud. It needs changing now and again, but we change it. It remains a system of which we are fundamentally proud because it recognises the right of the individual to a fair trial in a UK court under laws passed by a UK Parliament. That is what we have, and if anybody asks me whether we should begin to throw it out, I say that they would be mad and wrong to do so.
My hon. Friend is making, as usual, a powerful point. He mentioned our ability to address deficiencies in our system, but does he agree that if we were to adopt the provisions in the treaty and were not satisfied with the way in which they were working, we could do nothing about that? We would be lumbered with them for the rest of time, because we would not be able to repeal any of the provisions in the treaty.
That could well happen, whereas at the moment, these matters are in our hands. If we get something wrong, we can change it. If the voters do not like what we do, they can change us. Goodness knows, the gap between the voter and the elected Member of Parliament is wide enough, without widening it further.
I have spoken for four minutes, and that is long enough. I shall stop speaking, but I must make it clear that I feel very strongly that we should not give away what has served us so well for so long to a system that will be more damaging to the individual than is imaginable.
I, too, shall be brief.
The exclusions included in the amendments are very important, for a reason that has not yet been mentioned. I hope that the exclusions will be effective in addressing the problem that I shall describe to the Committee—the way in which the justice and home affairs provisions interact with article 188(l), a new provision that states:
“The Union may conclude an agreement with one or more third countries or International organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect the common rules or alter their scope…Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.”
The importance of that provision is that the European Union already concludes international agreements with third countries on matters that are clearly within its competence, such as vehicle homologation, or the standardisation of road vehicles. The reason why the European Union cannot agree extradition treaties with third countries is that extradition is not included in the main part of the treaty, but that will change as we bring justice and home affairs into the purview of the treaties.
We already have, for example, a common arrest warrant, which is at present a third pillar agreement between the member states. Under this treaty, that will become part of the main body of European community law. That means that the European Union will acquire the competence to agree an international agreement, as a nation state would agree an international agreement, with other nation states on the matter of extradition. Effectively, we would progressively lose from our national jurisdiction the right to agree extradition treaties.
We will also lose another powerful tool—the ability to hold people to account for the quality of their negotiation. Other hon. Members have mentioned the appalling job that the Government did in negotiating the extradition treaty with the United States. If the European Union did that, we could not change the people who had made a poor job of it. At least we can do that with this Government.
I am wary of highlighting the deficiency of present agreements, because people will no doubt claim that we would be much more effective if we were all negotiating as one country. However, let us take for example the trade negotiations and the world trade agreement. Provisions that will be very damaging for some of the poorest countries in the world are being agreed through the Doha trade round and the imposition of economic partnership agreements on African countries that are losing their special status, which stretches back through history, with European countries. We could see similar agreements on extradition being agreed with third countries that are not in the interests of this country.
In fact, we enjoy special arrangements on extradition with a great many countries. We stand to lose those special arrangements under these provisions, and I ask the Minister to confirm in his winding-up speech whether I am right or wrong. With the inclusion of these provisions on justice and home affairs in the main body of the treaty, in conjunction with article 188L—[Interruption]—and, of course, with the addition of legal personality, as my hon. Friend the Member for Stone (Mr. Cash) says from a sedentary position, will we lose control of extradition if the EU chooses to exercise that competence?
I make a further point about article 188L. Decisions under article 188L are, of course, made by qualified majority voting. So, whereas the arrangement for extradition agreements in the EU is a unanimity provision at the moment, we are effectively conceding to the EU qualified majority voting on extradition. That amounts to an extra concession of qualified majority voting. Moreover, I must point out that, whatever is agreed internationally by the EU by qualified majority voting automatically becomes an exclusive competence of the EU that is enforceable through the European Court of Justice and therefore binding directly on member states. I am looking at my hon. Friend the Member for Beaconsfield (Mr. Grieve) on this matter, and I hope that he is nodding in full agreement.
I think that I am nodding in full agreement. Uncertainty surrounds the way in which the clause will be interpreted, which gives me cause for considerable concern. It is clear that we have the opt-outs in the domestic context; but, equally, it is clear that we do not have them in respect of EU international relations, which my hon. Friend is highlighting. It will be for the Minister to clarify whether, in fact, if there were an impact on areas where we had opt-ins and opt-outs on EU international relations, we would find ourselves subject to qualified majority voting on them.
Of course, and at risk of extending my comments by a mere extra minute, I may say that my hon. Friend has raised an extremely interesting issue, and we need an assurance from the Minister. He should give us an absolutely categorical guarantee that this red line will hold and that, where we are not opted into a justice and home affairs provision, there will be no question of the EU concluding an agreement with a third country on behalf of the Union by a qualified majority vote that would, therefore, take into its purview, by direct effect internally, control over that policy, thus removing it from the British Government. I do not think that he can give that assurance, because in the end, as usual, we are in the hands of the European Court of Justice.
I rise to support the amendment ably moved by my hon. Friend the Member for Rayleigh (Mr. Francois) from the Front Bench and the amendments advanced by my hon. Friend the Member for Stone (Mr. Cash), whose knowledge of these matters is more extensive than that of any other Member, as again demonstrated in this evening’s debate. I was also struck by the short speech made by my hon. Friend the Member for Woking (Mr. Malins), who correctly defined the essence of parliamentary democracy: mistakes can be corrected and we can reverse legislation that turns out to be wrong or damaging. All Governments—not just this one—make mistakes, but the House, either in the same Parliament or subsequent to an election, can alter the law. We cannot do that if the law is made in another jurisdiction and the procedure for amending or changing it is incredibly long-winded, cumbersome and way beyond our reach.
Does my right hon. Friend agree that the problem with the opt-in provisions, which are much vaunted by the Government, is that once somebody has opted in, there is no mechanism ever to opt out again? Once we are in, we are in—even if a subsequent Government wishes to get us out again.
My hon. Friend is entirely right, and such provisions will render general elections something of a farce. A political party will advance propositions on criminal justice, policing, immigration or asylum, but the electors will know quite well that, if its politicians are elected, they will be unable to make the changes or pass the laws because they are all made in the EU. The question “Why vote?” then becomes unanswerable, and the public have realised that. The Government and the Electoral Commission take an awful lot of time and trouble to try to persuade people to vote. They are putting voting booths in supermarkets—
Yes, Tesco, and people are being encouraged to vote online. The real problem is that people will vote only when that vote makes a difference, and it will not make a difference if the political party that is elected cannot carry out its manifesto commitments.
I do not know whether my point will be welcome to the right hon. Gentleman, but CREST—the Centre for Research into Elections and Social Trends, an academic group—has shown a correlation between declining voter turnout and diminishing differences between the parties. If people feel that there is no choice, they will not vote. If there is a real choice, they will vote. I would like there to be a real Conservative party and a really democratic socialist Labour party; then people would come out to vote.
The hon. Gentleman puts it better than I could. In a general election, we all engage in a contest, and each party has its own programme. An essential component of the process is that if we are elected, we can carry out that programme. If we cannot, democracy dies. That is why we are debating not a treaty but democracy itself.
I have tabled an amendment and a new clause. The amendment, No. 26, would disapply justice and home affairs from the treaty as implemented in this country. I tabled it because it is not necessary to have a new treaty covering those issues. Nobody—certainly not the Minister—has shown us that the intergovernmental method that we have under the treaty of Rome as amended is failing in any way. What provisions are we unable to agree to under the existing machinery? I believe in intergovernmentalism because it retains essential democratic control and accountability while allowing one to be internationalist in one’s ambitions, and I am an internationalist. I always have been, and so has this country. We are members of many organisations that seek to tackle world problems.
The Government’s case seems to be that anyone who believes in tackling crime and terrorism has to be in favour of the treaty. That is just not true. The rest of the world does not belong to anything like the European Union; those around the rest of the world tackle world problems as they always have done—by making alliances, seeking friends, and working with other countries to tackle common difficulties. That is how the rest of the world operates—intergovernmentally. Nothing convinces me that that is not working perfectly satisfactorily, or that we need to pool our law-making ability to tackle problems. After all, on police co-operation, Interpol long predates Europol. I find the debate curiously Eurocentric. Little Europeans are making the case for more European powers, but my horizons are global. I want to work with all countries of the world to tackle common problems.
The Liberal Democrat spokesman, the hon. Member for Eastleigh (Chris Huhne)—he has left the Chamber, but I am sure that the hon. Member for Cambridge (David Howarth), who is present, agrees with him—advanced a curious proposition. He said that we need the provision to help British people living in other countries. We are being invited to give up all our powers over laws affecting our constituents in return for a partial, vestigial influence over laws affecting some British people living in other countries.
That seems to me to be a very bad deal.
Apart from anything else, I am not convinced that Executive efficiency is more important than democracy. The European Union is incredibly inefficient. The common agricultural policy, the common fisheries policy and the European Union budget are not good models for a common crime and justice policy, but crucially it is the loss of public control and the lack of accountability that are breeding resentment and disillusionment with politics and politicians which worry me so much.
The treaty does not cure that, but makes it worse. It defies instructions given at the start of the reform process. I go back to 2001 when, in the Laeken declaration, Heads of Government meeting in that town in Belgium identified the problem—the growing gap between the European Union and its citizens. It instructed those who sat on the Convention on the Future of Europe to design a Europe closer to its citizens. How is that possible if more decisions are taken away from the citizens and away from their national Parliaments to be decided in remote institutions in the European Union, which are the source of the problem in the first place?
The treaty abolishes the intergovernmental system of Maastricht and puts in its place a supranational system, which is further from the public. That goes all the way back to the Convention. The hon. Member for Birmingham, Edgbaston (Ms Stuart) will remember that the British Government were on the side of intergovernmentalism in those days. The Government tabled hundreds of amendments to try to stop the transfer of power and authority away from national Parliaments, but they failed. In the narrower sector of justice and home affairs, the then Minister for Europe, the right hon. Member for Neath (Mr. Hain), tabled 40 amendments, 38 of which were turned down.
So we know that the Government do not agree with the provisions in the treaty, because the treaty is virtually the same as the constitution which was the product of that Convention. I shall give one or two examples. Article 69B will give the European Union, if the treaty is ratified, the power to establish the definition of criminal offences and the sanctions applying to them—that is, the punishments. The power of the state to punish will be applied in this country in accordance with rules that we do not make.
The article specifies categories of serious crime, such as terrorism, corruption, computer crime and organised crime. Those are wide definitions and are not recognised in British law, a point that I made in an intervention. “Organised crime” is almost impossibly wide. There is no category of crime called “organised crime” in our jurisdiction, but we will import that into our criminal justice system via the treaty.
We had a short debate earlier this evening on the European public prosecutor. He will be responsible for investigating, prosecuting and bringing to judgment those accused of crime against the financial interests of the European Union. I have a much simpler solution to the financial problems of the European Union, which is to turn the tap off. If the European Court of Auditors in its 14th report next year still finds that much of the money goes missing, it should just stop paying it. Member states would soon start listening to the European Court of Auditors if it had that power.
Is my right hon. Friend concerned that if he were in a position to turn the tap off, that may, under the provisions, become an offence against the financial interests of the Union and he might be prosecuted?
We could all be in court if the treaty goes through; my hon. Friend has made a shrewd and accurate point.
I have the Government on my side again. We know that the Government wanted to remove completely from the treaty any reference to the European public prosecutor, even though the office could be brought in only by unanimity. The right hon. Member for Neath, who represented the Government in the negotiations, said:
“Unanimity does not mean that this article can be accepted”.
He rightly saw that once it was in a treaty, we would be implicitly committed to it; although we might have a veto, it would become a question not of whether but when. The right hon. Gentleman wanted all references out. My modest amendment would simply do what the Government tried to do in the Convention on the Future of Europe.
I shall give one other example of an article to which the Government also objected. Article 69F states:
“The Union shall establish police cooperation involving all the Member States’ competent authorities, including police, customs and other specialised law enforcement services”.
That is not a permissive power, but an instruction—the word “shall” is used. In the phrase “specialised law enforcement services” I recognise a reference to MI5; our Security Service is to be brought into the requirement to co-operate with other member states. There is a special relationship between our security and secret services and the United States, and it dates back to shortly after the second world war. In place of that, we are being mandated to co-operate with all 26 other member states. More than that, the power—and it will all be done by qualified majority voting—includes
“the collection, storage, processing, analysis and exchange of relevant information”.
Given that even this Government cannot be trusted with the data under their control—after all, Revenue and Customs lost 25 million files, affecting everybody in the country—we can imagine what may happen when even more sensitive information has to be exchanged with 26 other countries all over the European Union, with varying standards of control over it. We are trying to put right what has gone wrong in this country; it would be highly irresponsible to create a further leakage of information as far as Bulgaria, Romania, Malta and right up into the Baltic. Is that really a sensible way to proceed?
Would it be true to say that if an identity card were introduced to this country, it could come under the control of the European Union?
It is certainly true that in the treaty there are many references to the exchange of information. It is bad enough that we will be centralising data here; I am against an identity card because I do not trust the competence of even our own Government to preserve and protect citizens’ information. If the data could be shared with 450 million other people, that is still another argument against it.
I am listening carefully to my right hon. Friend, whose knowledge of the European Union is profound. Is he not stating in so many words that our country—the United Kingdom—is no longer a sovereign, independent country?
I believe that if the treaty is ratified we will have undermined our powers of self-government to the extent that we could be considered to be in a colonial situation. I have visited other members of the Commonwealth who have more powers over their legislation concerning immigration, asylum and criminal justice than we, the mother country, will have under this treaty. That is an extraordinary irony of history.
Under the terms of the treaty, the whole area of justice and home affairs becomes a shared competence of the European Union—that is to say, the European Union and the member states will have powers to legislate. Crucially, however, it is asserted in article 2 that when the EU legislates in this area, member states will lose the ability to do so. In other words, we have not a shared competence but a residual role. That is profoundly important, particularly because attaching to this is the provision—
Is it also my right hon. Friend’s understanding that where the European Court of Justice interprets legislation in which the European Union has come to occupy a competence, that, too, will be binding on every country in the EU, including this one where it has been opted in?
My hon. Friend is right. As I said in a previous debate, I do not regard the European Court of Justice as neutral in these matters. It is a federal institution in the way that the Supreme Court in the United States is a federal institution. Shortly after the American constitution was signed and ratified, the Supreme Court, under the famous Chief Justice, John Marshall, started to interpret states’ rights in a way that was prejudicial to those rights. That led to the consolidation of federal powers, to such an extent that about 60 years later, in 1861, the federal Government were able to declare war on a state—South Carolina—that attempted to secede. That was inconceivable when the constitution was drawn up, but that is what happened. The Jeffersonian settlement was undermined by a Supreme Court that was part of the federal structure. I see something parallel happening with the powers of the European Court of Justice, which, I remind the House, will have an obligation in the treaty to practise “mutual sincere cooperation”, not with member states but with the other institutions of the European Union. The observations about the European Court of Justice and its future role are well made.
Does this not relate to subsidiarity? Subsidiarity does not mean that nation states can decide which powers to pass up to the European Union but that the European Union decides which powers, if any, it will be gracious enough to hand down to national Parliaments.
Yes. Moreover, the final court that decides a subsidiarity case will be the European Court of Justice. My hon. Friend the Member for Stone (Mr. Cash) referred to the role of national Parliaments in the context of subsidiarity attempting to tell them what they should do in this area. The European Scrutiny Committee correctly observed that this House does not take instructions under any treaty. We are self-governing; we lay down our own rules of procedure. Whether or not we decide to look into matters of subsidiarity is purely a matter for us. We should resent becoming the creatures of a treaty and therefore of the European Union, as is the case under this document.
I followed closely the right hon. Gentleman’s comparison between the American constitution and the effect of the treaty. The parallel, if he takes it to its logical conclusion, is presumably that the European Union could have the power to declare war on France. Is that a serious proposition that he is making?
No. If the right hon. Gentleman was following my argument, he would know that I was simply illustrating a point. Powers in a treaty become subject to interpretation by a supreme court, and if that supreme court is part of the central authority it starts to see matters and interpret treaty provisions in a way that is detrimental to the interests of member states, in this case, and in favour of the interests of the central institution. We already see that activism in the European Court of Justice. I was pointing out that that process in America undermined the rights of states and asserted the powers of the federal Government to such an extent that they—the federal Government—declared war on a seceding state. I do not suppose that that will ever happen in the EU, but I was making the point that an accretion of powers to the centre aided by an activist court is happening in the EU in the same way as it did in the USA. I do not want to push the other parallels to breaking point.
My right hon. Friend’s observations on the connection with the Supreme Court under Marshall draw an interesting parallel. Those occurrences turned on the interpretation of the constitution and the words “we the people”. The phrase “we the people” overrode the rights of the states, and it was through that entry in the constitution that the relationship was changed between the federal Government and the states.
That is my proposition. Ultimately, the treaty is about the comparative powers of member states vis-à-vis the European Union. By “member states”, I mean in particular their representative Parliaments and, by extension, the powers of the people they represent. In my judgment, that balance is profoundly upset by the treaty—and never more clearly than in criminal justice, policing, immigration and asylum. With those few scattered thoughts, I strongly support the amendments tabled by my hon. Friends.
The defence of the provisions that we are seeking to amend has so far fallen to the hon. Member for Eastleigh (Chris Huhne). He speaks with some authority since, if the Liberals applied proportional representation to themselves, he would be leader 49 per cent. of the time. His defence—I take it that he is acting as an outrider for the Government—was that the measures are essential in order to export some good higher standards from this country to other countries in the European Community. Up to 750,000 ex-patriot Britons live in those countries, many of us travel to them, and many of us work in them.
It is normally said that Eurosceptics take a rather negative view of foreigners and foreign Governments. On this occasion, the Liberal Democrats and the Euro-enthusiasts were working on the assumption that Johnny Foreigner needs a little help from us and that the benighted populations of our fellow member countries of the European Community do not have adequate legal systems but need them to be overridden by a supranational authority. In the interests of those countries and of the British people living in them, we must therefore hand over power over our own legal authorities to those supranational bodies: the European Court of Justice, the Council of Ministers and the European Parliament.
Unfortunately, that cuts both ways. If we can export the superior systems of this country—that is the view of the Liberal Democrats—to those partner states, presumably they can export their power and influence to us. That has been a concern to my party.
The right hon. Gentleman is making a serious point. Does he agree that people in many continental countries do not trust their Governments as much as people here trust us? That may be surprising, but I think that it is well established, as illustrated by the state that Italy is in at present. It is one reason why people in other member states are more prepared to hand authority over to a supranational body than we are.
That may be true. The hon. Gentleman makes a valid point, but it is not necessary for my argument.
It must be said that there is a tendency among Conservative Members to assume that we have an especially virtuous legal system. I am very proud of it and very attached to it, but we must not think that it is superior to all the other systems in the EU. Each country has its own legal system that it has developed over time, according to its own personality. Each legal system has its own coherence and checks and balances. When we start to legislate supranationally and to export elements of one legal system into another, the danger is that we create incoherence and destroy the balance of those other systems. We also risk wrecking the balance and coherence of our own system.
It is perfectly possible that the systems used abroad are in their own way just as good, or just as well adapted to the needs, wishes and personalities of their peoples, as ours is. It is not necessary for any country to destroy the coherence and balance of its legal system, but what is especially odd about the Liberal position is that it is assumed that the primary job of this place is to improve the legislative structures of other countries, and that that is more important than maintaining control and authority over our own legislative system.
I tend to think that a person who goes abroad must accept the system that governs where he or she lives and works. I have been the chairman of a German company, and I accepted that German law applied. I have a holiday home in France, and I accept that French law applies there. When I worked in Spain and Belgium, I assumed that those countries’ laws apply there. I have never thought that it was the job of the British Government to set up the laws in other countries, and certainly not if doing so meant giving up the power to determine our own legal structures and laws.
Although common law evolves in this country, a key part of our system is that Parliament can change laws if the courts interpret them in a way that we do not expect. We can do the same if circumstances change and the implications of a law become different from what they were when they were laid down. The sort of changes set out in the treaty, if they are not amended as we propose, mean that we will not be able to change laws in response to circumstances and in reaction to experience. We will hand over to others powers that we and this place traditionally have had, and that is why I call on the House to accept the amendments and to reject the proposals in the treaty and the Bill.
I am delighted to have an opportunity to make a brief contribution to the debate. I know that a number of colleagues would like to speak, but we are all keen to hear what the Minister will say in response to the powerful points that have been made.
Many hon. Members of all parties have made important contributions to the debate. It would be invidious to name them all, but the early speech by the hon. Member for Crewe and Nantwich (Mrs. Dunwoody) was very powerful, and my hon. Friend the Member for Woking (Mr. Malins) also made an important contribution.
What seems clear is that the provisions are all part of a process. As my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) said, that process progressed via the Laeken declaration and the convention, which was intended to bring the European Union closer to the people, to reduce the gap in democracy and deal with the fact that people feel that they should have some say in the decisions made for them. But at each turn, we have seen a greater accretion of powers at the centre.
The treaty not only sets out new powers, responsibilities and areas of competence but goes beyond that by setting out further aspects of the ratchet that would increase the powers of the EU in the area of justice and home affairs. That point was made tellingly by the hon. Member for Birmingham, Edgbaston (Ms Stuart), who spoke about the way in which the enhanced co-operation procedures can work to make something seem inevitable, so that the pressure is then on for other member states to accede to it. We see that in all the provisions on policing and judicial co-operation, and in provisions relating to Eurojust and the public prosecutor, which give new powers to the EU.
The European public prosecutor will be able to initiate prosecutions through the competent national authorities. I do not know how that procedure can work. I do not know of any precedent for it, or of any mechanism through which it can operate. I shall be interested to hear from the Minister how he believes that such a process can take place. How will the relevant competent authorities in the UK—presumably the Crown Prosecution Service—take instruction from the office of the European prosecutor in order to pursue prosecutions through the British courts? That is not clear in the text of the treaty and it has not been made clear at any point during the debate, but that matter must be clarified.
My hon. Friend is developing a most interesting point. Would he direct his attention to the European Court of Justice? That court is an animal of the European Union; its interests are entirely those of the Union. How can we rely upon it to provide an independent judgment in the interests of the United Kingdom when it is interested not in an independent opinion, but merely the views of the corporate European Union?
My hon. Friend makes an important point in his customary trenchant and powerful way. It is not just those of us in our party, or those who care about our national sovereignty on the Labour Benches, who are concerned about the activism of the European Court of Justice. Member states, the President of Austria and the former President of Germany have expressed concerns about the way in which the European Court of Justice can extend the remit and powers of the European Union beyond what appears to have been agreed by member states. In that area, as in so many others, we have a very open-ended set of provisions with little definition.
During our earlier exchanges, we expressed concern about loose language and loose definitions. An example worth reflecting on is in article 69D, which refers to the activities of Eurojust and its scope of operation. It is made clear that Eurojust has the capacity to initiate prosecutions in relation to offences against the financial interests of the Union, but it states that it can initiate prosecutions
“particularly those relating to offences against the financial interests of the Union”.
That makes it clear in terms that the provision includes things other than offences relating to the financial interests of the European Union.
I said at the outset that I would not detain the Committee long. I am anxious to hear the Minister’s comments and I hope that he will have some answers to the many points and questions that have been raised in the debate.
I am delighted to respond to the various points that have been made in Committee and delighted that you, Sir Alan, are overseeing our proceedings.
Before dealing with the wider points that the lead amendment makes, I pay tribute to my hon. Friend the Member for Birmingham, Edgbaston (Ms Stuart), and not only for her participation in all the debates this evening and previously. I want to put it on record for the first time that, as of today, she is the proud owner of the German Order of Merit. She is not easily embarrassed, but I see that she is now.
With the Committee’s indulgence, I intend to allow time for the hon. Member for Rayleigh (Mr. Francois) to respond to my comments. Let me deal with the lead amendment. Justice and home affairs in general and police and judicial co-operation on criminal matters in particular are subjects of great sensitivity. The UK has therefore negotiated a comprehensive opt-out arrangement, under which we have a choice, as the UK Government. First, we can choose whether to opt into new justice and home affairs proposals. Secondly, we can choose whether to accept European Court of Justice jurisdiction over existing third pillar measures at the end of the transitional period.
The UK has always acknowledged the important role that the ECJ plays in the European institutional context. It has always been recognised that there is no point in reaching agreements that do not stick in practice. That is why the ECJ has been so important in developing, for example, the legal infrastructure that governs the internal market.
With your indulgence, Sir Alan, I shall give way a couple of times and then make progress.
Can the Minister give a single example of agreements made under the third pillar that have not stuck and, therefore, need to be transferred for adjudication under the ECJ?
I shall do so happily. There are 82 proposals under third pillar consideration. Proposal 78, which deals with the transfer of sentenced prisoners, has been blocked because the Polish Government have not agreed to it. The right hon. Gentleman asked for one example and I have provided one. I hope that that reassures him.
Is my hon. Friend concerned that the ECJ has made two recent rulings against trade unionists in Finland and Sweden, and that it is starting to resemble an organisation that serves the interests of big business and neo-liberal philosophy, not those of working people?
I am not certain that that is the case. We believe in an economy that is flexible and liberal but contains a core component of social Europe. The ECJ can play an important part in that. [Interruption.]
Order. I am sorry to interrupt the Minister, but there is too much sedentary noise in Committee. I should like to hear the Minister’s reply and I understand that hon. Members wish to hear it, too.
I want to make it clear that the benefits of justice and home affairs co-operation are in the UK’s national interest. Our participation in EU agreements on police and judicial co-operation in criminal matters is only one example. Such co-operation is vital in helping our police services fight terrorism and organised crime. There are prominent examples of the importance of the European arrest warrant.
There were Eurosceptic and Euro-isolationist sniggers about Europol, with people asking, “What the heck is it?” and so on, but it has often helped disrupt serious and organised crime, ranging from armed robbery to child pornography. Europol’s contribution has been welcomed by the Home Affairs Committee—a cross-party Committee—and as an important contributor to the matters in hand.
We have also secured opt-in arrangements on transitional measures, which are important in the context of the lead amendment. We are clear that, by securing maximum flexibility, the Government have achieved a good deal for Britain. We have ensured that we have the right to choose where to participate in justice and home affairs co-operation and that ECJ jurisdiction cannot be imposed on the UK against our will.
Will the Minister give way?
No, I will not give way. I hope that the hon. Gentleman will accept that I have a short amount of time this evening. The fact is that in yesterday’s debate I gave way on dozens of occasions.
No, I will not. The hon. Member for Rayleigh will speak at the end of this debate.
On a point of order, Sir Alan. I regret saying this, but we addressing amendments in Committee, but the Minister has not yet alluded to a single one.
As I think the hon. Gentleman knows, the Chair is not responsible for the content of what either the Minister or any other hon. Member says. The Minister must be allowed to answer the debate in his own way, and he has a limited amount of time left in which to do so.
On a point of order, Sir Alan. Could you explain to the Minister that if he wants more time, the Committee will vote him more time? [Hon. Members: “Hear, hear!”] He cannot take refuge in the shortage of time for his failure to answer.
The right hon. Gentleman knows that that is not a point of order. He has put his view on the record and there will be opportunities through the usual channels to ensure that representations are made for more time if that is what some hon. Members believe should happen.
Turning to amendments Nos. 8, 9, 10, 212 and 136—
No, I will not. [Hon. Members: “Give way!”]
Those amendments would prevent the UK from implementing the treaty provisions relating to judicial co-operation in criminal matters. That is both contrary to the UK’s national interest and unnecessary, as the UK opt-out applies to those provisions.
On a point of order, Sir Alan. Can you rule on whether the Minister is trampling on the traditions and procedures of the House?
I have to say to the hon. Gentleman—
Order. The hon. Gentleman cannot expect the Chair to rule on any such thing. The Minister is replying to the debate. It will be for the convenience of everyone if he is allowed to do so in his own way and in a manner that is audible.
I gave way on dozens of occasions yesterday, but in the interests of keeping the hon. Member for Beaconsfield (Mr. Grieve) calm and happy, I will give way on one last occasion.
What I seek is clarification of the point that my hon. Friend the Member for North Essex (Mr. Jenkin) raised about the power of the European Union to reach agreements with outside states under qualified majority voting on areas such as extradition and how that would impact on areas where the United Kingdom had decided not to opt in. The question is very important and the Minister must have the answer.
If I had known that the question was so straightforward, I would have happily given way earlier. The answer is that if the UK chooses not to opt in, we cannot then be bound by international agreements that the EU enters into in areas where we have not opted in. I thank the hon. Gentleman for the opportunity to make that clear.
On amendments Nos. 8, 9, 10, 212 and 136, without the European arrest warrant, extraditing criminals and terrorists from other member states would be a much lengthier, more complex and more expensive process. The warrant was the first mutual recognition measure, but we have since agreed others, which are in the process of being implemented, to improve the collection and exchange of evidence and to enforce financial penalties and confiscation orders between member states. The judicial co-operation chapter of the Lisbon treaty also recognises that mutual recognition, rather than harmonisation, which is an important point recognised in the Law Society report published six hours ago.
On amendments Nos. 11, 137 and 213, in moving the provisions on policing co-operation and Europol from a system of unanimity in Council and consultation with the European Parliament to qualified majority voting and co-decision, the UK has secured two key safeguards.
First, we have extended our opt-in to apply to those provisions. That means that we cannot be obliged to participate in such measures where we deem them not to be in our interests.
Secondly, unanimity and consultation are retained for measures concerning operational co-operation for determining the conditions and limitations under which the competent authorities of one member state may operate in another territory, with its agreement.
I will not give way further. I have already said so.
Operational action by—
Order. It must be fairly clear to the hon. Gentleman that the Minister is not going to give way—
I know why.
Order. That is not helpful at this stage.
Europol is by no means a new concept. Its establishment was agreed in the Maastricht treaty and it was formally created by an EU convention that came into force in October 1998.
I shall turn now to amendment No. 26. European Union co-operation in the area of freedom, security and justice has been part of the treaties since Maastricht. It enables us to work together to tackle common threats such as terrorism and organised crime. It enables us to put into effect practical measures that have an immediate and positive impact—
On a point of order, Sir Alan. My point of order is very simple. The present arrest warrant already provides for extradition—
Order. That is an abuse of our procedures. The hon. Gentleman is taking up time on a bogus point of order when the Minister is trying to reply to the debate. I have to leave it to the Minister.
On a point of order, Sir Alan. It is very difficult for Conservative Members to hear the Minister. He is rushing his answer because he does not have time to give it. Could you please ask whether we could have a bit more time, so that he can say what he has to say in a way that most of us can understand?
Order. The right hon. Gentleman knows that we are governed by the motion that the House passed yesterday, and that I am no more responsible for the style of the speech of an hon. Member than I am for its content.
I shall turn to new clause 4. The UK benefits hugely from our participation in EU agreements on police and criminal judicial co-operation. That co-operation is vital in helping our police services to fight terrorism and organised crime. The new clause would require the Government to opt out of all existing third pillar measures that had not been amended or replaced before the end of the five-year transitional period. During that period, the institutions will, as far as possible, amend or repeal existing third pillar measures. The UK will be able to decide whether to opt into amended measures. Six months before the end of the five-year period, the UK will have the choice whether to accept ECJ jurisdiction over any remaining, existing third pillar measure. This provision, which gives the UK a choice on each and every occasion in respect of justice and home affairs as to whether to accept ECJ jurisdiction in such cases, was a significant negotiating success for the United Kingdom, as the Home Secretary said earlier.
On new clause 7, the principles of direct applicability and direct effect are nothing new. ECJ regulations and decisions have had this effect since the treaty of Rome in 1957. In opposing the amendments before the Committee this evening, we are clear that the amendment tabled by the hon. Member for Stone (Mr. Cash) would deprive the UK of the benefits of the European arrest warrant. We also oppose amendment No. 26, tabled by the right hon. Member for Wells, which would leave the UK to deal with threats in isolation. The United Kingdom Government are not willing to accept that.
On amendments Nos. 11 and 137, Europol was established by Maastricht, but the amendments would prevent effective co-operation between police forces across Europe. New clause 4, tabled by the right hon. Member for Wells (Mr. Heathcoat-Amory), would require the UK to decide now whether to opt out of the remaining third pillar measures. Amendment No. 135, tabled by the hon. Member for Stone, would deprive the United Kingdom of the benefits of the movement of civil liberties and civil justice in respect of freedom across the European Union.
Amendment No. 207 was tabled by Conservative Front Benchers. If passed, it would prevent the UK ratification of the treaty, and its ratification across the European Union. The amendment would delete a Committee attended by officials who work to ensure that justice in home affairs and co-operation in a coherent and effective way are possible.
The amendments before us this evening would turn the Opposition’s political isolation, which we have already spoken about, into entrenched institutional isolation. A once great party that helped to lead debate on Europe in the past has been scrabbling around on amendments to abolish a Committee that is attended by officials in the mistaken belief that it represents some great threat to our justice and home affairs processes. I invite Opposition Members to withdraw their amendments; otherwise, I encourage my hon. Friends to oppose them.
I realise that in the few moments available I cannot reprise the whole of yesterday’s debate on the business motion. However, I will briefly remind the Committee that we argued very strongly yesterday that one day was nowhere near enough to debate the issues of criminal justice, policing and home affairs that are at stake under the Lisbon treaty. We have been more than borne out by the way in which the debate, particularly on the amendments, has been conducted. Even with the switch in timing that the Government allowed, a number of Back Benchers were still standing at the end of this group of amendments who did not have the chance to put their points to the Committee. It should also be noted that we will not reach the second or third group of amendments—including, critically, the group on the matters of borders, visas, asylum and migration. I remind the Government that we argued strongly for having a separate day to debate those measures. Members were promised by no less than the Prime Minister an opportunity for “line-by-line scrutiny” of the treaty of Lisbon. Given that promise, this has not been an auspicious beginning.
Let me now turn to the Government’s case. If the Government have such a powerful case in opposing our amendment No. 214, why is it that out of a party of more than 350 MPs, not a single Labour Back Bencher made a speech in defence of the Government’s position? In fact, for large parts of the debate on the amendments, the Labour Benches were almost completely deserted. So much for line-by-line scrutiny of the treaty of Lisbon! The fact is—[Interruption.] The Government Chief Whip says that Labour Members agree with it; well, if so, why not have the guts to turn up and argue their case?
The collapse of the third pillar into the first pillar is a major change encompassed by the Lisbon treaty and it has very severe implications for our system of criminal justice. That was pointed out by a number of my right hon. and hon. Friends, not least in a passionate speech by my hon. Friend the Member for Woking (Mr. Malins). Indeed, it was also bravely pointed out by several Labour Back Benchers, including the hon. Member for Birmingham, Edgbaston (Ms Stuart) and the redoubtable hon. Member for Crewe and Nantwich (Mrs. Dunwoody). This is a major, major change, yet the Government are attempting to argue that it is just some minor technical modification. It is not. It potentially gives the European Court of Justice jurisdiction in these areas, which it has never had before, and the abolition of a veto is no way compensated for by a combination of an opt-in and an emergency brake.
The Government had 40 objections to the constitution—effectively what they are now signing up to. Two of those objections were accepted—played 40; won two; drawn none; lost 38—yet the Home Secretary described it as a negotiating triumph. My God, what would have happened if we had done badly and lost! Why do we not have the Danish protocol, which would give us far greater protection in these matters than the one we have been given? We are utterly unconvinced by the Government’s answer on all—
It being two and a half hours after the commencement of proceedings, The Chairman put forthwith the Question already proposed from the Chair, pursuant to Orders [28 January and this day].
Question put, That the amendment be made.
Amendment proposed: No. 8, in clause 2, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Article 69A, TEC (TFEU), relating to judicial cooperation in criminal matters; and
(ii) ’.—[Mr. Francois.]
Question put, That the amendment be made:—
To report progress and ask leave to sit again.—[Mr. Khan.]
Committee report progress; to sit again tomorrow.
Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Delegated Legislation Committees),
Financial Services and Markets
That the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2007 (S.I., 2007, No. 3510), dated 13th December 2007, a copy of which was laid before this House on 13th December, be approved.—[Mr. Khan.]
Question agreed to.
Motion made, and Question put forthwith, pursuant to Standing Order No. 119(9)(European Standing Committees),
That this House takes note of an unnumbered explanatory memorandum from HM Treasury dated 8th January 2008, European Court of Auditors’ Annual Report on the implementation of the budget concerning the financial year 2006 together with the institutions’ replies, European Union Documents No. 11724/07 and Addenda 1-2, Protection of the financial interests of the Communities—Fight against fraud—Annual Report 2006, unnumbered explanatory memorandum from HM Treasury dated 9th August 1997, European Anti-Fraud Office—seventh activity report for the period 1st January to 31st December 2006, No. 13117/07 and Addendum 1, Commission report on the follow-up to Discharge Decisions (Summary)—Council recommendations, and No. 13118/07 and Addendum 1, Commission Report on the follow-up to 2005 Discharge Decisions (Summary)—European Parliament Resolutions; and supports the Government’s promotion of measures to improve the level of assurance given on the Community budget.—[Mr. Khan.]
Question agreed to.