Skip to main content

Presumption of Innocence and EU Law

Volume 575: debated on Monday 10 February 2014

[Relevant document: The thirty-second report from the European Scrutiny Committee, HC 83-xxix, Chapter 1.]

I beg to move,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I will try to follow the Minister’s example and be commendably brief—I do not anticipate being intervened on by Labour Members very often this evening.

I begin by complimenting the European Scrutiny Committee and its Chair on the rigour and clarity that they bring to this matter, contrasted as it is—it saddens me to say so to this Minister—with the pusillanimous response of the Government until this evening. The Committee’s report rightly states:

“It is difficult to overstate the significance of the Commission’s proposal. It brings the law of the presumption of innocence, as laid down by the European Convention of Human Rights (ECHR) and in the constitutional or national laws of Member States, into the realm of EU law, which has supremacy over national law, for all criminal offences. In so doing it sets out certain rights which go further than the interpretation of similar rights in the ECHR by the European Court of Human Rights, and so creates separate standards of procedural safeguard under EU and ECHR law. A domestic consequence of this is that UK laws on drawing adverse inferences from a failure to cooperate or from maintaining the right to silence, which are compliant with the ECHR, would be in conflict with EU law, and so subject to Commission infringement proceedings and severe financial penalty if not amended.”

That must be right. These are matters of central importance to the liberty of the subject, the rule of law and, above all, the right to a fair trial. This is a country where those seminal legal concepts have developed over centuries. It is right that the Secretary of State is commemorating 800 years of Magna Carta, although it is sad that his alienation of the legal profession means, as we learn today, that there may be a boycott of his global law summit next year. By the same token the law, specifically the common law, has developed differently here from how it has on the continent. There will be significant differences in our approach from that of Roman law jurisdictions. But that does not mean we should not try to establish certain minimum standards in areas as fundamental as the presumption of innocence and the specific requirements set out in the articles of the draft directive.

The matters dealt with in that directive—the right not to be presented as guilty; the burden of proof resting on the prosecution; the right to remain silent; and the fact that the scope of those should go from the very start of proceedings until the final judgment is delivered—are right. I hope the Committee and the Minister are as alarmed as I am to see that 11 member states appear to have fallen below the standards demanded by the ECHR. One reason for our strong support—I believe this is still shared by the junior coalition partner—for the convention is the levelling-up effect it has on human rights across Europe.

The problem with translating that alarm into this legislation is, as the Committee identifies, twofold. First, it is not the difference in standards or the falling short per se that provokes the draft directive, but the alleged effect that has on confidence in the judicial systems in states that are failing. There is anecdotal evidence to support that; indeed, much of the debate about the European arrest warrant focused on worries about the criminal justice system in the extraditing state. However, as the Commission itself concedes, there is “limited statistical quantifiable evidence”, and that is not a good basis for such a radical restructuring of European criminal law.

Radical though the draft directive may be—this is the second problem—it goes beyond what the ECHR demands. For example, under the Police and Criminal Evidence Act 1984 and subsequent legislation, it is permitted in English criminal courts to draw inferences from the silence of the accused. The burden of proof does not always lie on the prosecution, and the right to representation, interpretation and translation varies at different stages of the criminal process. I do not seek to defend the law in its current form by saying that, but I do say that the directive is not the means by which to open a wholesale review of those and other provisions of the criminal law.

The Commission has not made its case on subsidiarity, it has not produced evidence, and the consequences of the proposal go beyond what is countenanced in the Commission’s arguments. The Government, taxed by the European Scrutiny Committee, have fallen in line with that view at the eleventh hour, so the Minister, whether for a quiet life or because it is easier to adopt the arguments in the reasoned opinion, has taken the path of least resistance.

It is a pity, however, that legislation is being made in such a way. The Committee is trenchant in its criticism of the Government, concluding:

“We repeat again our disappointment at the poor quality of the Government’s EMs on the three proposals forming the Commission’s procedural rights package, particularly in the light of the time taken to draft and deposit them.”

This is not an isolated incident, as last month the regulatory policy committee described the Ministry’s impact assessment on court fees as “not fit for purpose” in a rare red report. Just before Christmas, the Secondary Legislation Scrutiny Committee referred to several explanatory memorandums accompanying statutory instruments as “less than satisfactory”. Last week, the new Minister of State, Ministry of Justice, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), at last conceded that the number of mediations taking place was falling significantly, which was something that the Justice Secretary repeatedly denied.

In the case of the draft directive, I appreciate that, as with the other examples I cited, we got our corrections eventually, albeit not without a lot of digging. It took a strongly worded letter from the Chair of the European Scrutiny Committee on 15 January to elicit some but not all the facts needed from the Secretary of State. The Under-Secretary of State for Justice, the hon. Member for North West Cambridgeshire (Mr Vara), had to write to the Chair of the Secondary Legislation Scrutiny Committee to apologise for and reissue the defective explanatory memorandums. Can he offer some explanation for the poor quality of legislation, statistics, reasoning and clarity coming out of his Department? I suspect it is due in part to the swingeing cuts in staff and low morale, but there might be other reasons that he wishes to offer.

While we share some of the Commission’s concerns about the standards adopted by a number of EU countries regarding the matters dealt with by the draft directive, we do not think the directive is the route by which to correct them. We will not oppose the reasoned opinion, but we note that it is the European Scrutiny Committee, not the UK Government, that has led on the issue, and that does not bode well for sound governance.

I am glad to say that the two Front-Bench speeches have combined to encapsulate all the arguments. While I have some comments to make about the Government’s position, I commend the speech of the hon. Member for Hammersmith (Mr Slaughter), because he drew out several of the European Scrutiny Committee’s concerns. I am sure that the Minister, having somewhat belatedly reached the conclusion that improvements were required, will acknowledge that, and that everyone will be satisfied, given that we are now considering a motion on forwarding a reasoned opinion.

As I pointed out in an intervention, for all the brickbats, congratulations and backslapping that might be coming from either side of the House, as things stand there is a more worrying matter to consider. If the Minister has received late information that more member states are prepared to deal with the matter properly, that would be useful for me, as Chairman of the Committee, to know. The hon. Member for Hammersmith rightly quoted the Committee as saying:

“It is difficult to overstate the significance of the Commission’s proposal.”

Against that background, and knowing the number of member states required for the yellow card procedure—we currently have the United Kingdom Parliament and the Scottish Parliament, unless some others have come into the framework and I am not yet aware of that—there is clearly no prospect of this reasoned opinion receiving the kind of attention from other member states that it should receive. I say that because we still have a window in which to sort the matter out, but it is not a very long one, and I must say that it does not bode well given the significance of the issues at stake.

On that point, surely the Commission will not regard the Scottish Parliament’s submission as relevant to this matter. Surely only a submission from this Parliament will be regarded as relevant.

I am grateful to my hon. Friend for that intervention, because I rather agree with him. Whatever the aspirations of the Scottish nationalists and those campaigning for independence, I am afraid that at this juncture what they have to say, however worthy it may be, will not be within the criteria set out for reasoned opinions under the yellow card system.

I ought to say that I have had grave reservations about the yellow card system from the very beginning. I have never thought that it is a matter that should be decided by an aggregation of member states—if they choose number X, why not choose number Y? The fact is that if a member state wishes to act, in its own national interests—the Minister, judging by what he said, regards this as a matter of critical national interest—I suggest that the reason for disapplying or vetoing laws should rest with one member state, as my Committee’s report made clear, because it becomes invidious to choose a particular number rather than another.

The real question is whether the matter is sufficiently important in the interests of the democracies, the legislatures and the constitutional arrangements of a given country for there to be a veto. Indeed, I must commend my right hon. Friend the Prime Minister, who vetoed a treaty only a few months ago, and what is sauce for the goose is sauce for the gander. For this purpose, I think that there is a very strong case, where it is sufficiently important in the national interest, to go beyond the yellow card system.

While my hon. Friend is talking about the yellow card system, is it not worth pointing out that the judge of whether the threshold is well enough argued once it has been met is the European Commission itself, so it ends up judging its own decision?

My hon. Friend, as ever, is completely correct. In the case of the European public prosecutor, the threshold was actually exceeded, and what did the Commission do? It just said that it would go ahead anyway, with complete contempt for our Parliament and the others. That is really what is at stake in these circumstances. It is extremely disturbing. There is no need to enlarge that argument, so I will leave it at that.

We have had a fair description of what the measure is about from those on the Front Benches, so I will simply draw the House’s attention to the fact that, with regard to process, it is unreasonable to expect Parliament to come to an informed view on compliance with subsidiarity within the eight-week time frame allotted for issuing a reasoned opinion without the benefit of an analysis by the Government. The Minister, who may have been drawn into this somewhat at the last moment, would perhaps agree with that; I hope so.

Why was it only at the second time of asking, in a letter sent four days before this debate, that the Government gave a clearer indication of their view on subsidiarity? To put it bluntly, the Government have been prevaricating; they were not clear about their position until very recently. On the substance, however, I welcome the fact that in that letter the Government have belatedly accepted that

“a lack of evidence of necessity renders a proposal in breach of the subsidiarity principle”.

I would have thought that that was an unexceptional circumstance, but I nevertheless welcome it. I also welcome the fact that, given that the Government have accepted that the Commission has not complied with the procedural requirements placed on it to provide a detailed statement appraising compliance with subsidiarity, the Commission has agreed with the European Scrutiny Committee. We relied on both those arguments in our reasoned opinion, and we are therefore grateful and glad that the Minister has decided to support our proposal.

We note—I would be grateful if the Minister responded to this point—that the Government’s view is still conditional. There is a little bit of fudging going on. They use the phrase,

“if in principle the need were to be established”.

From what source—other than the impact assessment, which lacks the necessary evidence—do the Government think the Commission will be able to establish evidence of need? We also note that the Commission recognises that there is—believe it or not, in relation to a matter of this importance—

“limited statistical quantifiable evidence on insufficient mutual trust between the Member States”.

How, therefore, can there be the slightest justification for action at EU level? These are not mere words; they are about the application of the presumption of innocence in relation to EU law.

On a technical point, the legal base of article 82(2) of the treaty on the functioning of the European Union specifically requires evidence of necessity to facilitate mutual recognition. On the difference between the approach to the European convention on human rights taken by the EU and by the European Court of Human Rights at Strasbourg, I ask the Government to what extent they agree with the paragraph in the Commission’s impact assessment cited in the draft reasoned opinion, as follows:

“The ECtHR’s reluctance to lay down prescriptive requirements in these areas, which can be seen as a rationale for an EU measure. The approach of the ECtHR has not been especially activist in developing detailed and prescriptive rules in the area of Article 6(2) of the ECHR. It has left a margin of flexibility for presumption of innocence and related rights in light of the requirement to balance the fair trial rights of suspects”—

I know that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who is Chairman of the Justice Committee, will appreciate that—

“or accused persons with the general public interest, as well as the diverse legal traditions of Member States.”

The Committee concluded that not being “especially activist” was a trait that we strongly welcomed and should inform the decisions of any supra-national court.

We have produced our report and we are grateful that the Government have somewhat belatedly come to the right conclusions on this. We regret that it is only in the past few days that we have got fully engaged with this subject, but we are now glad that the reasoned opinion will go from this Parliament to the European Commission with the support of the sole Member on the Opposition Benches as personified by the hon. Member for Hammersmith. It is important that we do it, but what worries me is that it looks as though it will be doomed unless other member states come forward. If they are not as interested as we are in the matters raised by our Committee, that will be very sad for the European Union as a whole.

I just want to add a few words to this conversation. I commend the hon. Member for Hammersmith (Mr Slaughter) for setting out so well the anxieties many of us will feel. It is not very long ago in our history that we were enormously proud of both our constitution and our legal system. It is, as the hon. Gentleman has pointed out, a common law system that covers Northern Ireland, England and Wales in our own domestic competence.

We should not ignore the simple fact that the legal system is an intimate facet of nationhood and the lines by which we govern ourselves. Ours has been a very long march to get where we are today. I think it was with Edward III—I have no doubt I will be corrected if I am wrong—that we started the separation of the judiciary from the monarchy, which led to the development of our judicial system. I think that is how most schoolboys of my generation understood its development.

The right to have a legal form that has withstood that number of centuries is not a casual thing. It is the most extensive, worldwide system of justice: one thinks of India, Australia, Canada, the United States and South Africa. It is a huge range, yet the way in which the Government have come to their conclusion confronts us with a clear loss of confidence in the very essence of what this Parliament is about and who we are. We cannot divorce ourselves from that tradition and one cannot accept that it will be swept aside by mandates from bureaucrats on the European continent. This is not an attack on them; it is an argument for confidence in our own constitution and legal system.

I believe, although some will disagree, that, by and large, the people of this country have confidence in our legal system and the fact that it will secure their liberty. The equal recognition of different judicial systems is a very alien concept. The rules and laws of Roman law and civic law are different from our laws. We do it case by case, and from that we found a tradition of what enforces the things that matter to this country—the defence of something absolutely essential to the development of our freedoms and liberty.

I wish the European Union well, but I do not think it should trespass into areas that are absolutely central to the sovereignty of the British people. That is why I am pleased that the report so assiduously crafted by the European Scrutiny Committee is central to this debate.

I have dealt in mere generality, but a profound concept is under attack. Our judicial system—the biggest and most important in the world—should not be subservient to a bureaucratic administrative system designated and designed elsewhere with the central purpose of consolidating the power of the European Union. That is why I am pleased that the Government have at last woken up to the very fact that this is about our law, our legal system, our freedoms, our independence and the right of the people of this country to determine what systems they should live under.

Let me start, Mr Speaker, by apologising for missing the Minister’s opening comments.

I thank my hon. Friend the Member for Stone (Mr Cash) and the members of his Committee for bringing this matter to the attention of the House. It is yet another example of the fine work that they do in scrutinising and painstakingly going through the masses—hundreds and hundreds—of EU regulations and directives that emanate from Brussels to identify those that are worthy of consideration in debate on the Floor of the House.

This is such a measure and, frankly, it goes to the very heart of the British legal system—the presumption of innocence. Quite frankly, it is staggering that the EU should try to lecture this country. That is what it boils down to: the EU is trying to tell this country how to run its justice system, and trying to interfere with what we determine about the innocence of a subject until they are proven guilty in a court of law. This is just a further building block that the EU Commission sees as a stepping stone on its way to building an EU-wide common system of criminal justice, but it is one that we ought strenuously to oppose.

I am quite happy that we are being asked to approve the Government’s proposal to send a reasoned opinion back to Europe about why the measure fails the test of subsidiarity. In my mind, it certainly does fail that test, but like other hon. Members, I am extremely concerned that it appears that we will once again stand alone in our opposition to it. My understanding—I look forward to hearing from the Minister whether it is correct—is that the deadline for objections from member states is 12 February. If that is the case, there is very little time for this Parliament or any others to lodge objections. It therefore seems likely, although I wish it were not the case, that the measure will pass.

Does my hon. Friend take the comfort that I do from the Government’s firm stance, in that even if no other Parliament sends in a reasoned opinion against the proposal, it would be eccentric of the Government, because it is subject to our title 5 opt-out, to opt in to one that is thought not to meet the test of subsidiarity?

Absolutely. I for one certainly hope that the Government will not feel that it is necessary to bow to the will of Brussels on this measure. Although I am at one and in accord with the Government on their proposal this evening, I would have to depart from that course if they tried in future to suggest that we should adopt it given that the European Commission seems likely to pursue it. Bearing in mind this country’s proud history of establishing our own system of common law and the rights of an individual to be regarded as innocent until proven guilty, I see no reason why we need lecturing from the EU on this matter.

Has my hon. Friend noticed that this matter has received almost no coverage in the media, particularly the BBC? Perhaps they will rectify that as a result of this debate. This is a serious matter and the British public must know what is going on, but there are limited opportunities for them to find out about it. If this proposal were in a Bill that dealt with the abolition of trial by jury, it would have to go through at least three stages in each House and would be subject to amendments in both Houses. Because it is in a directive, all we are left with is putting up a reasoned amendment that will be doomed if other member states disagree.

The Chairman of the European Scrutiny Committee, as ever on these matters, is right. This proposal has not received adequate scrutiny in the media. There may be many reasons for that.

This is another example of the EU interfering in matters that are a million miles away from the areas that the vast majority of the British people want us and our European neighbours to deal with. The British people want us have free trade with our European neighbours; they do not want the European Union to interfere in matters of criminal justice. This is just one example of why, when it comes to a referendum, I believe that millions of my fellow citizens will agree with me that we would be better off out of the European Union and that we should simply trade with our European neighbours on a free trade basis.

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

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

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

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

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

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

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

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

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

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

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

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

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

Question put and agreed to.


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