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European Investigation Order

Volume 514: debated on Tuesday 27 July 2010

With permission, Mr Speaker, I would like to make a statement on the draft directive for a European investigation order, and the Government’s decision to opt into that draft directive.

As people have become more mobile, so too has crime, and that has serious consequences for our ability to bring criminals to justice. To deal with cross-border crime, countries enter into mutual legal assistance—MLA—agreements. Those agreements provide a framework through which states can obtain evidence from overseas. MLA has therefore been an important tool in the fight against international crime and terrorism. It has been crucial in a number of high-profile cases. For example, Hussein Osman, one of the failed terrorists from the 21/7 attacks five years ago, might not have been convicted had it not been for evidence obtained through MLA.

However, MLA has not been without its faults. The process is fragmented and confusing for the police and prosecutors, and it is too often too slow. In some cases it takes many months to obtain vital evidence. Indeed, in one drug trafficking case the evidence arrived in the UK after the trial had been completed. The European investigation order is intended to address those problems by simplifying the system, through a standardised request form and by providing formal deadlines for the recognition and execution of requests.

The Government have decided to opt into the EIO because it offers practical help for the British police and prosecutors, and we are determined to do everything we can to help them cut crime and deliver justice. That is what the police say the EIO will do. We wrote to every Association of Chief Police Officers force about the EIO, and not one said that we should not opt in. ACPO itself replied that

“the EIO is a simpler instrument than those already in existence and, provided it is used sensibly and for appropriate offences, we welcome attempts to simplify and expedite mutual legal assistance.”

However, I know that some hon. Members have concerns about the EIO, and I should like to address them in turn. The first is on the question of sovereignty. In justice and home affairs, there are many ideas coming out of Brussels, such as a common asylum policy, that would involve an unacceptable loss of sovereignty. I want to make it absolutely clear to the House that I will not sign up to those proposals, and I have made that clear to my European counterparts. However, the EIO directive does not incur a shift in sovereignty. It is a practical measure that will make it easier to see justice—British justice—done in this country.

The second concern is about burdens on the police. At a time when we are reducing domestic regulatory burdens on the police, I agree that it would be unacceptable to have them re-imposed by foreign forces. That is why we will seek to ensure that there is a proportionality test, so that police forces are not obliged to do work in relation to trivial offences, and that forces will be able to extend deadlines when it is not possible to meet them. I want to be clear that the EIO will not allow foreign authorities to instruct UK police officers on what operations to conduct, and it will not allow foreign officers to operate in the UK with law enforcement powers.

The third concern is about legal safeguards. We will seek to maintain the draft directive’s requirement that evidence should be obtained by coercive means, for example through searching a premises, only where the dual criminality requirement is satisfied. Requests for evidence from foreign authorities will still require completion of the same processes as in similar domestic cases. In order to search a house, for example, police officers will still need to obtain a warrant.

The execution of the EIO must be compatible with the European convention on human rights. That means that there must be a clear link between the alleged criminality and the assistance requested, otherwise complying with the request would be in breach of article 8 of the ECHR, on private and family life.

By opting in to the EIO at this stage, we have the opportunity to influence its precise content. We know that the existing draft is not perfect, and we are confident that we will be able to change it in negotiations. My noble Friend Baroness Neville-Jones has already had discussions with her German counterpart, and we are confident that we will shape the draft directive so that it helps us to fight crime and deliver justice while protecting civil liberties and avoiding unduly burdening the police. That is why the civil liberties group, Justice, says that

“on balance it is better for the UK to engage in this area than be ousted onto the periphery of evidence in cross border cases.”

I ask hon. Members to remember this: the EIO will apply to both prosecutors and defence lawyers, which means that it can be used to prove British subjects innocent abroad, as well as to prosecute the guilty at home.

The EIO will allow us to fight crime and deliver justice more effectively. It does not amount to a loss of sovereignty. It will not unduly burden the police. It will not incur a loss of civil liberties. It is in the national interest to sign up to it, and I commend this statement to the House.

I do not want to worry the right hon. Lady unduly at our daily meeting, but I broadly welcome this statement. I suspect that I am just a short preliminary to the real opposition on the matter, which is the Brokeback tendency behind her. [Hon. Members: “Bareback!”] Or bareback tendency, even, which adds a whole new dimension.

We supported the Stockholm programme in December, which included the decision that a comprehensive system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition, should be further pursued, not least because as the Home Secretary said, the current framework consists of a whole series of instruments that are fragmentary and repetitive. They hamper cross-border investigation at a time when the international dimension, particularly of serious organised crime, is of increasing importance.

There is a clear need for a comprehensive, legally binding single instrument to provide a definitive framework for cross-border investigations. That should not be conflated with the European prosecutor proposal, which we were firmly against. Perhaps the Home Secretary can confirm that failure to opt into the current instrument would leave the UK with the existing unsatisfactory and fragmentary provision, thus putting us at a disadvantage in the fight against cross-border crime. In contrast, as she said, opting in will allow us to negotiate further safeguards. Does she agree that those should include greater consideration of the rights of the suspect, and should not that include judicial scrutiny at both the issuing and executing stage?

I agree with the Home Secretary that there should be a proportionality test, as with the European evidence warrant, which I believe the UK will no longer be obliged to implement if we sign up to the EIO. Can she confirm that that is the case?

The human rights organisation, Justice, has indeed urged the Government to opt into the instrument, but it has raised a number of concerns about the initial draft. What discussions have the Secretary of State or her Ministers had with that organisation, and does she agree with its analysis?

It is good to see that the Government have recognised that cross-border crime is a serious concern. The Home Secretary’s party opposed the European arrest warrant, principally, I believe, because it contained the word “European”. I am glad that she is not repeating that mistake, and in welcoming her statement, I hope that will rethink her approach on second generation biometric passports so that as with the EIO, British citizens are not left behind as security measures in the rest of the European Union become more effective.

I welcome the positive and constructive approach that the right hon. Gentleman has taken today. Sadly, we are about to go into recess, so he and I must find a means of meeting other than across the Dispatch Box in the coming weeks. He made a number of points and made a passing reference to the Stockholm programme. Of course, this Government did not support everything in that. We are treating each justice and home affairs issue on a case-by-case basis, so we will decide to opt in to some things, such as the EIO, and to opt out of others.

The right hon. Gentleman asked me to confirm the impact of a failure to opt in. Failure to opt in would indeed leave UK police and prosecutors in a very unfortunate position, because it would mean that they must rely on existing MLA agreements to obtain evidence from overseas. It is intended that forces from which evidence is requested will meet a timetable contained within the EIO. I suspect that because of that, the practical reality of opting out is that UK requests would go to the bottom of the pile. The figures are stark—70% to 75% of our MLA requests are with other EU member states—so failure to opt in would have a significant impact.

The right hon. Gentleman asked about the European evidence warrant. The directive makes it clear that the EEW will be repealed and replaced by the EIO. He also mentioned the European arrest warrant. Of course, it is important that people should not get mixed up between the EIO and the EAW. We took a view different from that of the previous Government on the EAW when they signed up to it, but our review of extradition will include a review of the EAW.

The right hon. Gentleman talked about safeguards. As I said in my statement, it will be necessary in the case of certain requests—for example, for the search of premises —to have the safeguard of proper consideration, because a warrant will be required, as is the normal course of events if the UK police choose to search premises.

Order. Many Members wish to ask questions, and as I said before, there is great pressure on business, so brevity is required. Hopeful of a lead on that point, I call Mr William Cash.

I am deeply concerned that the EIO has not been considered by the European Scrutiny Committee, which was formally set up last night, and nor have many other important matters. The legal basis is qualified majority voting, co-decision and the European Court of Justice under the Lisbon treaty. Will the Secretary of State confirm that the EIO applies to all investigative measures, and that it gives undue rights to police officers from other European countries to order our police to gather sensitive personal information —and, furthermore, DNA and banking records—in relation to non-criminal matters, and from those who are not even suspects? The grounds for refusing an EIO request are totally inadequate, and I am sure that the ESC will demand a debate and call evidence, but regrettably, it cannot do so until 8 September, because it has not been called to sit until then.

I must tell my hon. Friend that decisions on when the ESC meets are rather more a matter for him—as I understand it, he is the Chair of that Committee—than for me. However, I share some of his concern. As he and other Members of the House will know, I have written a pamphlet and proposed a 10-point plan on how Parliament can have more of an opportunity to have a say on, and to debate, decisions on European matters.

The instrument came before the Government on 29 April with a three-month deadline for decision. Of course, that period was partly taken up by the election, and the ESC was formed only last night, as my hon. Friend said. In the normal course of events in Parliament, the ESC could suggest the matter for debate. On that point, it is certainly my hope that when the Government propose to opt in on a major JHA issue, Parliament can consider it. However, I hesitate to give more of a guarantee than that, because what happens in Parliament is a matter for the business managers rather than for me. On the powers that my hon. Friend claims the EIO gives to foreign police forces and others, I must tell him that I think he is wrong.

May I welcome the new-found affection between the Front Benchers, and take that one stage further by agreeing with the hon. Member for Stone (Mr Cash) for the first time on a European issue? It is really important for Parliament to have the opportunity to scrutinise this decision. We have just had a meeting of the Home Affairs Committee. The Police Minister gave evidence about police resources, but we could not question him on the EIO, because the Home Secretary was due to make this statement. This is a serious matter that requires scrutiny by the ESC or the Home Affairs Committee.

The Home Secretary made a statement to the House that the EIO will not have an effect on police resources, and the Police Minister, in his excellent evidence to the Committee, talked about the need to preserve police resources, but a request from one of our European partners will result in more police time being spent. That must be the case, because they would not make such a request otherwise.

I agree that it would be of benefit for Parliament to scrutinise and debate many such European matters more than has happened in the past. However, given that we are up against a deadline and going into recess, it would have been very easy for me simply to have made a written ministerial statement. Instead, I chose to come to make an oral statement so that I could answer questions on the EIO.

On police resources, I remind the right hon. Gentleman that we intend and hope to introduce a proportionality test in the negotiations, which is important. However, the EIO is not some new arrangement that will suddenly require extra police resources. Rather, it codifies and simplifies processes that already exist. To the extent that it reduces bureaucracy and simplifies those processes, I hope that it will be of extra benefit to our police.

Many of us were elected on a programme of no more powers whatever passing to the European Union. Given that the Home Secretary promised us that no sovereignty would be transferred by the EIO, will she reassure us of that by putting into the draft proposal a simple clause that says that Britain can withdraw from the arrangement at any time if it proves to be not as advertised? If we have that clause, we are sovereign; if we do not have it, we are not sovereign. [Interruption.]

I thank the hon. Member for Bolsover (Mr Skinner) for that sedentary intervention.

I did make that statement on sovereignty in relation to the EIO. We are opting in to the draft directive, over which there will be negotiations in the coming months. However, I said what I said because the order and the directive are not about sovereignty moving to Europe, but about making a practical step of co-operation to ensure that it will be easier for us not only to fight crime, but crucially, to ensure that justice is done.

I am disappointed but not surprised by the Government’s decision to opt in to the EIO. I was a Home Office Minister some years ago, and even then officials tried to push all kinds of things, by which more power was taken away from this country. Following the Secretary of State’s previous answer, is she saying—let us let the public know the truth—that once we opt in, no matter how much we find that it is not working in our interest or that it is costing huge amounts of money, there is absolutely nothing we can do?

I thank the hon. Lady for her question, which shows not only that matters European divide different parties, but that people within the same party take different attitudes. She assumes that opting in to the order will mean extra costs and extra burdens for UK police, but I repeat what I said in response to my right hon. Friend the Member for Wokingham (Mr Redwood): we are talking about codifying arrangements that already exist. We are not suddenly being asked to sign up to something new that has just been plucked off the shelf. The suggestion is for practical co-operation that codifies and simplifies arrangements that already exist and that benefit police forces here in the UK.

I welcome the statement. It is right that we should opt in to orders that slash bureaucracy, help us fight crime and do not infringe our sovereignty. Does the Home Secretary agree that it is important for her to work not just with her counterparts, but with Members of the European Parliament, to ensure that we strengthen the privacy and human rights safeguards in this order?

I thank my hon. Friend for his contribution, and I hope that we can all work with MEPs to ensure that the directive that we end up with as a result of the negotiations in the coming months does what he suggests—slashes bureaucracy and makes it simpler for our prosecutors and police to ensure that justice is done. In doing that, we are all of conscious of the need to protect civil liberties.

Can the Home Secretary confirm that the proposals that she has made today—which are welcome, and represent a move away from Europhobia—include provisions, in articles 23, 24 and 25 of the Council decision, for intervention on banking transactions? Contrary to what the hon. Member for Stone (Mr Cash) implied, that is important in order to stop international organised crime.

The hon. Gentleman makes the important point that the European investigation order will be a help to UK police forces and others across the European Union in tackling what we all agreed only yesterday is an important issue that should be given a greater focus—serious organised crime.

May I urge my right hon. Friend, when she deals with the detail of these proposals, to ensure that these powers will apply only to common criminality between one country and another? For example, France has just banned the wearing of the burqa, which is a very un-British thing to do. Can she assure the House that if someone in this country used our freedom of speech to criticise that move, the French authorities would not be able to come here and arrest that person?

I think that my hon. Friend refers to the issue of dual criminality between member states, which is already provided for in relation to certain measures in the directive, especially coercive measures that might be taken as a result of the European investigation order. I can assure him that the issue of dual criminality is very much on our minds.

May I warmly thank the Home Secretary for adopting this sensible, pragmatic and pro-European policy? I look forward to sending her a membership form for the European Movement. One of the problems that many UK police forces have had is tracking down child pornography and paedophile rings across Europe. Can she confirm that these proposals will go some way to helping police forces track down those people?

Now I am really worried!

Detection of various crimes, and the tracking down of the perpetrators, relies on cross-border co-operation. The point of the EIO is that it will assist such co-operation and, crucially, it will enable evidence to be gathered in a timely fashion. We already have examples— not in the sort of cases to which the hon. Gentleman refers, but in drug trafficking—in which the evidence has arrived only after the end of the trial.

I thank the Home Secretary for her statement to the House—it is much appreciated. Does she share the concerns of some Back Benchers that during proceedings on the Lisbon treaty—when we were in opposition—loss of sovereignty was often described as just a “practical measure”? That phrase crept into her statement, too, and I would be grateful for reassurance that that is not the case.

I am trying not to make too much of a habit of making statements in the House—although there have been a few Home Office statements recently. I recognise my hon. Friend’s concern about the use of that terminology. I have looked into this issue and it is indeed a very practical measure. It will simplify, codify and put some time limits on processes that already exist. The MLA agreements are already in existence and are followed up by police forces here requesting evidence from overseas and by police forces overseas requesting evidence from the UK. These proposals will make it much easier to undertake that process in a timely fashion so that the evidence is available for both prosecutors and defendants in their trials.

May I congratulate the Home Secretary on the bravery that she has shown in taking such a different stance from that of so many members of her party? There are clearly criminals who exploit loopholes across borders, so would she be able to find a way to report to Parliament periodically on any advantages or gains that flow from this collaboration?

Having had my statement welcomed both by the shadow Home Secretary and by the hon. Member for Rhondda (Chris Bryant), and now being described as “brave” by the hon. Member for Nottingham East (Chris Leslie), I am not sure about this.

I am happy to write to the hon. Gentleman with some examples of the existing arrangements working, as well as examples of the problems caused for prosecutors and police by the lack of a timetable such as the one that will be introduced by the EIO.

The Home Secretary’s statement eloquently set out the reasons to welcome this process. However, the words “opt in” and “European directive” send shivers down many backbones in my constituency. Only today I heard from a constituent about the 256 European arrest warrants referred for mediation last year, presumably at a cost of untold millions to European taxpayers. Can the Home Secretary assure us that she and her team will scrutinise the detail of this directive to ensure that it is operationally more effective than the European arrest warrant system?

I can indeed assure my hon. Friend that we will look closely at the detail of this. The intention is to make it easier for prosecutors and police—and the defence—to obtain the evidence necessary for trials. She mentions the European arrest warrant, but as I said earlier, the EIO is entirely separate.

The problem with the argument that this is simply a simplification of existing arrangements is that that argument was put forward by Labour Ministers when they were pursuing the Lisbon treaty. That is why many of us are concerned about this and will continue to believe, as we said in opposition, that it demonstrates a relish for surveillance and a disdain for civil liberties. What impact will this order have on our DNA and fingerprint databases? Will forces from Europe be able to access those databases, and if so, what will happen if the person whose DNA they have accessed proves to be innocent? We would wipe that database after a period of time, but what would be our relationship with our partners in Europe?

I can, I hope, reassure my hon. Friend on his second point. Under the data protection arrangements in the European Union, DNA samples could be held by another member state only for the same time as they can be held here in the UK. That opens up another argument about why the Government intend to change the arrangements for the DNA database and do not want to hold the DNA of innocent people for significant periods, as the Labour Government did.

My right hon. Friend talks about the proportionality test that will be applied, but who will write the rules of that test? Will it be by negotiation among EU countries or will it be the UK Government? And who will adjudicate that?

The proportionality test is something that we intend to negotiate with other member states from the point of opt-in to the point at which the text of the final directive is determined.

As the final text will be determined by qualified majority vote, how may we be certain that we will not cede powers to Europe? Does the Home Secretary recall the words of a great and noble lady who, when Europe was trying to snatch powers, once said from that very Dispatch box, “No, no, no”? Is not that a much preferable way in which to approach a further European grab?

I am tempted, but I will avoid falling into that trap.

In the coming months we will be negotiating the final text of the directive with other member states. The early indications, from discussions with other member states, are that our concerns about the parts of the directive where we think that the drafting is not perfect, and more can be done, are shared by other member states, which is why we are confident we can arrive at a text that meets all the requirements that we want to set out. But is my hon. Friend really saying that he wants us to hamper the efforts of our police to bring people to justice and fight crime? I sincerely hope not. This measure will help the police to ensure that justice is done and crime beaten.

I am grateful to my right hon. Friend for coming to the House, and I have been working hard to try to understand the Government’s position on this matter. However, I did not understand fully, from her statement, whether European authorities will not be able to order an investigation. Surely, the EIO does what it says on the tin, and allows European prosecutors and police to order an investigation here.

I will try to explain it to my hon. Friend. We already have agreements—the mutual legal assistance agreements—that enable the police force in the UK to ask other police forces in European member states to gain evidence that will be of use and benefit in taking cases to court and in providing evidence. There is also a reciprocal arrangement for other member states to ask our UK police forces to undertake similar evidence gathering. The EIO will simply put that on a timetable and simplify the processes. Currently a number of instruments can be used, but they are complex and confusing to those who use them. The EIO will simplify them into a single instrument and put a timetable on the process, which is why it will be of benefit to the police and prosecutors.

Does the Home Secretary agree with me, and with the police, that the directive will serve to speed up complex investigations, and should therefore help to keep criminals off the streets? Does she also agree that to do so would benefit British society as well as European society?

I absolutely agree with my hon. Friend’s point. In response, I would simply cite a case of drugs trafficking that was drawn to my attention in which the failure to execute an MLA request resulted in a misleading picture being presented to the jury of the strength of the prosecution case. As a result, evidence that might have exculpated the UK defendant was not available in time for the trial. That case alone explains why we want to sign up to the EIO.

May I congratulate my right hon. Friend on coming to the House to make this statement? It is no fault of her own, but nevertheless deeply unfortunate, that neither the European Scrutiny Committee nor the House of Commons has had the opportunity to consider this document. I urge her, when she comes to consider the detail of this proposal and future proposals of the same nature—which I believe may well appear—to be on her guard against the undoubted attempts of certain quarters in the European Union to build a common European judicial and legal system, and to use any means to hand as a building block towards that purpose. Will she be on her guard against that? In those circumstances, I believe that she would indeed be capable of saying, “No, no, no.”

I can assure my hon. Friend that I will be on my guard, as will other members of the Government. We have made it clear that we are considering on a case-by-case basis all issues arising under the justice and home affairs remit of the EU. As I have said to the House, I believe that in this particular case it is in the national interest to opt in, but on other occasions we will opt out. So we take the issue that he raised very seriously.