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Criminal Procedural Rights (Opt-in Decision)

Volume 577: debated on Tuesday 18 March 2014

[Relevant document: The Thirty-Second Report from the European Scrutiny Committee, HC 83-xxix.]

I beg to move,

That this House takes note of European Union Documents No. 17621/13 and Addenda 1 to 3, a 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, No. 17633/13 and Addenda 1 to 3, a draft Directive on procedural safeguards for children suspected or accused in criminal proceedings, No. 17642/13, a Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, and No. 17635/13 and Addenda 1 to 3, a draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European Arrest Warrant Proceedings; and agrees with the Government that the UK should not exercise the opt-in to these measures.

I am pleased that the European Scrutiny Committee has called this debate, as these potentially important matters are of interest to Parliament and the public. The three proposals to be considered today all flow from the Stockholm work programme agreed in 2010, and two of them flow directly from the criminal procedural rights road map agreed in 2009 and later confirmed in the Stockholm programme. We have been presented with three directives, which appeared at the same time and which share a common date of 19 March for a decision on whether the UK will opt in. The decisions are individual and specific to each proposal.

I can tell the House that we have considered each proposal carefully. In line with the coalition agreement, we have looked at the potential benefits and disadvantages of UK participation to the national interest on a case-by-case basis. We asked ourselves whether it is in our national interest to be bound by any or all of the proposals, and we have concluded that it is not. The motion is therefore clear that we are minded not to opt in to any of the proposals, and I of course look forward to hearing the views of the House this afternoon.

I congratulate my right hon. Friend on his absolutely right decision, but can he confirm that it is the intention of Her Majesty’s Government not to opt in at any stage?

I was going to make reference to that. I can confirm that we have agreed that we will not participate in the first and third item at any stage. We have agreed across the coalition that we will take a look at the second item in the discussions that take place. We will participate in the negotiations, but I say to the House this afternoon that I do not expect, at the end of that process, any change to the decision that we are proposing, which I hope the House will endorse this afternoon.

I have also given our officials permission to take part as observers in the negotiations on the other two measures, because, naturally, I am keen to ensure that our European partners take sensible steps, too. It is right and proper that we should be aware of what takes place, but I could not conceive of a situation where we could consider taking part in the presumption of innocence and the legal aid matters. Therefore, it is not our intention at any stage to participate.

I was glad to see that the European Scrutiny Committee has also concluded that the UK should not opt in to the proposals, so we are of one mind on them. It is also worth highlighting that we are considering these three measures alone today, and that the Government continue to engage with the Commission on wider 2014 measures. I will briefly discuss the possible pros and cons of each proposal, as it is important that the House understands the basis for our decisions and the proposal we are putting to it this afternoon. First, I wish to make a general point relevant to each of the proposals. Each of them would of course apply to all criminal cases in the UK. None is restricted to cross-border cases. That means that if we accept any of the proposals, we also effectively agree that, henceforth, the relevant matters of internal procedural law will be determined at an EU level rather than here. In addition, the highest court overseeing the implementation and interpretation of the rules would thereafter be the European Court of Justice and not any UK court. That is, of course, true of all EU laws, but it is important to bear that in mind as we consider the proposals.

I remind the House that the agreement we reached on the 2014 measures is that we do not believe that Britain should be part of a European justice system. We do not believe in the harmonisation of court and legal procedure, and our decisions reflect that view. I do not agree with those who wish to create such a unified system. Other member states are free to do so if they choose, but we have decided that this country should not be part of such an approach.

The process that my right hon. Friend has described raises another problem, and I wonder whether he shares my view on it or approaches it from a different perspective. The proposals open up the possibility of conflicting decisions between the European Union system and the European convention on human rights on a number of issues. What happens in Britain has passed the test of the ECHR, but it would not necessarily pass the tests set in the proposals.

That is a very valid point, and my right hon. Friend is right to raise it. As he knows, we have different perspectives on the European Court of Human Rights, but he has highlighted one of the incongruities that will exist if we simply hand over jurisdiction in such crucial areas to the European Court of Justice, because there are some clear contradictions between European measures and those set out in the convention. Whatever our different perspectives in the coalition, we share that view of the problems that may arise from such Europeanisation of law.

I am grateful for my right hon. Friend’s concluding remarks to the Chair of the Select Committee on Justice, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). The difference between the ECHR and the European Court is that according to section 3 of the European Communities Act 1972, when a decision has been taken under that section, it is binding on us. Our Supreme Court cannot change that law, and there is no opportunity to appeal. That raises the whole question of who governs the United Kingdom in that area.

My hon. Friend highlights an area about which I am concerned, and on which there are perhaps disagreements within the coalition. Although there are democratic checks on the court system in this country—if Parliament does not agree with a Supreme Court ruling, it has the option of changing the law accordingly—the same is not true of international courts.

We have a lively discussion in the coalition about our future relationship with the ECHR, but if we start to hand over key elements of the working of our justice system to the ECJ, there is a real danger that in an attempt to harmonise, we will lose some of the things that make our system strong. There is no doubt in my mind that English, Scottish and Northern Irish law are highly regarded around the world, and I would not want to see them internationalised. If that happened, the distinctive features that make London, Edinburgh and Belfast attractive legal centres might be less pronounced than they are today.

Does the Secretary of State agree that there is a case for minimum standards for the treatment of child defendants, and for people to have the right to appear in court and to be considered innocent until proven guilty? What is wrong with that? Why should other people not share those values?

In some respects, the hon. Gentleman is right, and that is what we do in this country. The question is whether he believes we should hand over future decision making about our judicial process and court process to an international court over which we have no control. He and his party clearly think that we should. I do not, and that is one of the things that divide us.

I applaud my right hon. Friend’s wise and sensible decision, and I am particularly pleased to hear him say that the national interest is paramount in the consideration of such matters. I note his decision, and I say, “Very well done.” Can he do more to ensure that some of his ministerial colleagues are as wise and sensible when considering other opt-ins to ensure that this outbreak of sensible decision making is consistent across the board?

I will do my best.

Let me touch briefly on the three measures. The first relates to the presumption of innocence. The proposal does not flow directly from the road map; it stems from the invitation in the Stockholm work programme for the Commission to consider whether issues not explicitly included in the road map—such as the presumption of innocence—might have a bearing on the mutual trust between member states.

It is very much a matter of regret to me that, in response to an invitation to consider that matter, the Commission concluded that legislative action was necessary. Even if it had concluded that something had to be done—that is a matter for debate—there are alternatives to new legislation or common EU rules. I say this as there seems to be very little evidence of need for the proposal or for common EU rules in this area. That point seems to be acknowledged in the Commission’s own impact assessment, which notes that quantifiable evidence of any problem is scant. In the light of that, I wonder why it has still proposed common rules.

This has been a matter of particular interest to the House of Commons European Scrutiny Committee, in the context of the proposal’s compliance with the subsidiarity principle. I note that the Committee issued a reasoned opinion on the matter, and it is a shame that it did not manage to secure support from other Parliaments in doing so. I want to see the Commission paying a little more attention to the yellow card system than it has been doing recently.

My right hon. Friend will recall that, on the question of the public prosecutor, the threshold was crossed but, even then, the European Commission decided that it would go ahead. Does he not regard that as an extraordinary situation? Does he agree that the yellow card system has been severely vitiated as a result?

I attended the Justice and Home Affairs Council at which this issue was discussed, and I have to say that there was extensive disquiet among member states. If the Commission wishes to be credible, it cannot simply ignore the system that was put in place by the Lisbon treaty in the way that it did in that particular case.

Let me turn to the second item on the list, which is the proposal on child defendants. By any assessment, I consider the UK arrangements for dealing with and helping children who become engaged with the law enforcement agencies and with criminal proceedings to be very good. There is a raft of specific provisions in place in the UK to assist children in those situations, and we wholeheartedly support the principle that children in those circumstances need to be treated differently from adults in some respects, given their particular vulnerabilities.

Beyond the general principle behind the proposal, however, and given that the UK’s current arrangements provide a significant degree of protection as good as that available anywhere else, the proposal presents significant difficulties. First, the definition of a child in the proposal is set at those under 18 years of age. In England and Wales, the procedural protections provided to suspects and defendants based on their age are varied to reflect the specific circumstances of their case. Article 1 of the United Nations convention on the rights of the child—to which the UK is a signatory, and to which the coalition Government undertook to give due consideration when making new policies and legislation—contains the same definition. In the context of the courts, prisons and the probation service, those under 18 years of age are treated as children and young people. However, there is a different approach for when the police deal with 17-year-olds under the Police and Criminal Evidence Act 1984, when, for practical reasons, 17-year-olds suspected of committing an offence are for some purposes treated as adults. Clearly, that would be an issue in regard to these proposals as well. The position in Scotland stands in even clearer contrast to the proposal, as it tends to treat younger people—that is, those aged 16 and above—as adults for these and other purposes.

I agree with what the Lord Chancellor has said this evening. Does he know whether we have been able to persuade any of our EU partners to adopt the very sensible practices and procedures that we have adopted in respect of children?

At the moment, this is in the early stages. One reason that we agreed to participate in the negotiations—albeit expressing up front our intention not to opt in—was to allow precisely that kind of discussion to take place. I have nothing to be ashamed of in relation to the way we manage our affairs in this country, although I understand that improvements might be needed elsewhere. My sole concern is that our rules should not be subject to the jurisdiction of an international court over which we hold no sway.

I am grateful to my right hon. Friend for giving way and I am sorry that I missed the very beginning of his speech. I warmly welcome the course that he has taken today. Is not the point that these matters are part of our arrangements in this country—in England and in Scotland—and should be decided here in this Parliament, subject to debate, representations from our constituents and election, and not by the European Union?

That is the point. We have 800 years of legal tradition in this country. It has evolved in a number of different ways and is subject to change and review in both the courts and our Parliament. I do not really feel that we need to bring a third body into that relationship. To my mind keeping the European Court of Justice at arm’s length over these matters is absolutely where we need to be.

On that point and the point made by my right hon. Friend the Member for Leicester East (Keith Vaz)—with which I do not agree, incidentally—the age of criminal responsibility in Britain for children is 10, which is far younger than elsewhere in Europe. Children are required to go to a full criminal court. Surely there is something to be learned from others, or are we too arrogant to listen?

The hon. Gentleman and I are on different sides of the House. When we disagree on different issues we can debate them in this House. If it is his view that the age of criminal responsibility in this country is too low, it is perfectly reasonable to articulate that in this House, to bring forward measures that could change that, and for us to debate it. My issue is that that is a decision for this Parliament and not for elsewhere, which is why I am taking the view I am this afternoon.

It is also worth saying that the proposal seeks to establish that any deprivation of a child’s liberty must be as a matter of “last resort”. The notion that children should not be detained unless necessary causes little difficulty in the UK, but it is obvious that it introduces a different test from that which currently applies in England and Wales in which children are deprived of their liberty if it is considered necessary—during a police investigation or on remand awaiting trial. That would also have to be subject to reconsideration if we were to opt into this measure and could lead to significant changes, which should be a matter for this Parliament and not for anyone else.

Given that the UK has one of the most comprehensive and generous legal aid regimes in the world, it will perhaps not surprise this House that our analysis suggests that our current practice—in England, Wales, Scotland and Northern Ireland—means that we are already compliant with the majority of the provisions of the proposed directive. We might, therefore, argue that as it does not ask much change of us, it would be fine to opt into it. However, it does require some change. It requires changes to procedures around the entitlement of somebody who is subject to a European arrest warrant to receive legal advice both in the country of arrest and the country that is seeking arrest. That would have small financial cost for us, but it is, none the less, a financial change that would be imposed on us. It would not be a priority area for us to increase legal aid spending at a time when the legal aid budget is, for necessary reasons, under enormous pressure.

It is not necessary or appropriate for our legal aid system to come under international rules. The level and nature of spend should be subject to a decision in this House. It should be a matter for Parliament. I do not think that we should pass over ultimate jurisdiction over our legal aid rules to the European Court of Justice, which is why I have said clearly that I cannot conceive of a situation in which we would wish to opt into this. I am therefore not prepared at this stage to leave that door open. It is not what this Parliament or this country want. I will not try to pretend otherwise. Let us be clear and up front and say that this is not something of which we wish to be a part.

Perhaps the right hon. Gentleman can confirm the estimated costs of that measure in terms of added legal aid costs. My understanding is that it is just £200,000, compared with his budget of £7.5 billion. It is not significant, so he is talking about the principle rather than the money.

I just said that it was not a large amount. It is a question of principle. Do we want decisions about legal aid entitlement to be taken in this Parliament by Government, scrutinised by the Select Committees of the House and by Parliament itself, or do we want to subject ourselves to an uncertain international jurisdiction that may, at a later date, decide that we have to do things in a wholly different way from the customs and practices in this country, often with a cost that is simply not budgeted for? My view is that we do not want that, and I propose that we do not accept that.

I have set out here in both general and specific terms why the proposals present difficulties in the UK, why, in their current shape, we could not support them and why we conclude that we should not opt into any of them. There is, of course, a question about negotiability, and these texts are not final. They may be open to changes in discussions in Brussels, which may improve them, but our assessment at this stage must be taken on the basis of the presented text; we have no other basis. It is of course possible that the proposed directive will change for the better in negotiation, but it is also possible that it could change in a way that make things even more problematical. We do not know for sure. We face a new Commission and a new Parliament in the summer. The Lisbon treaty provides co-decision making to the European Parliament. Matters relating to these directives can be amended in that Parliament and could theoretically impose costs on us that are absolutely not budgeted for.

It seems to me that the scale of our difficulties with the current proposals on the presumption of innocence and legal aid are such that it is difficult to foresee any realistic prospect of negotiating them to a conclusion that the UK could now accept. They are simply too far away from acceptability. Although we will continue to monitor the forthcoming negotiations, we will be clear about our position at the outset. I hope that that clarity will be useful to the House and that the House will support it this afternoon.

The proposals on child defendants also present significant difficulties and I do not underestimate them. I think it is pretty unlikely that we would be able to secure changes that would make them acceptable or better. That is why we are recommending this afternoon that we should also indicate that we will not opt in. I have instructed officials that they should participate in the negotiation to see whether changes made at a later date would be advantageous to this country. I am not convinced that that will happen, but I have left it open as a possibility. That was what was agreed across the Government.

I will ask my officials to work closely with interested Departments, including the Home Office and the Foreign Office, to ensure that the message is communicated effectively to our EU partners and is factored into wider engagements on matters such as the 2014 decision. My view is that the proposal I am laying before the House this afternoon is in the national interest. I have considered carefully the different measures and I am very clear that it is not right for the UK to opt into them, but it is important that this House has its say. I hope that the House will endorse that approach and that everyone in the Chamber will feel that it is right to accept our proposals and support the motion.

I can be fairly brief in addressing these three draft directives. That is not to say that they are unimportant both in themselves and in the context of European legislation, but the Government’s approach to them has been so casual and tardy that the ground has not been laid for sensible debate. I pray in aid the article in tonight’s Evening Standard entitled “EU law change ‘could help drivers escape speed fines’, says Chris Grayling”. That is how the Lord Chancellor sums up these three important draft directives for the public at large. If one were cynical, it would be tempting to assume that when the Secretary of State hears that European legislation is to be debated he first ignores it and then decides to oppose it not because of its merits but because it is European.

It is good to see the Secretary of State proposing the motion. The previous Lord Chancellor used to leave it to his junior Ministers; I wonder why? The current Lord Chancellor’s appearances in the House are rare compared with those in the Evening Standard, but I think that he has come for the approbation of the hon. Member for Stone (Mr Cash) and others rather than to give a reasoned opinion on the matter in hand. His opening speech has sadly confirmed that. The Chair of the European Scrutiny Committee is too wise a man to play the Secretary of State’s game, as the Committee’s reports in the bundle make clear.

Let me first set out the Opposition’s position on the draft directives and then have a little moan about how they have come before us. The presumption of innocence is speedily dealt with. We debated it in the Chamber a month ago and my opinion has not changed since then. I gave two reasons why we would agree with the Government and not support the opt-in. They were:

“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.”

That is the point made by the Committee Chairman. I went on:

“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.”—[Official Report, 10 February 2014; Vol. 575, c. 671.]

Interestingly, in Committee on the Criminal Justice and Courts Bill, we are about to debate further provisions that would allow for more speedy and, the Government would say, effective trial of cases in absence on minor offences. That partly organic and partly operational process of the courts is a good example of why it is wrong that we adopt that particular draft directive.

The two other draft directives are more compelling. They go to the practice and procedure in the law, rather than its fundamentals. They sit more comfortably with the three measures previously debated and decided on by the Government.

My hon. Friend will be aware that we already practise the assumption of innocence unless proven guilty and people’s right to be present in court. Is it not part of this partnership to promote best practice to others, rather than to abstain completely in the way the Government have, in particular by not providing the data to the EU Commission on the effectiveness of the justice system? We are the only country not to do that. It is ridiculous.

My hon. Friend makes a good point. Where that is possible we should do it, and I will refer to a draft directive where we took exactly that line. I simply say in relation to the draft directive on the presumption of innocence that it was proving too difficult to accommodate the principally Roman law system of the other EU countries with our developed system of common law. It was just impossible. However, it does not stop us advocating within the EU on those matters, which we do very well; I just do not think that they are entirely compatible.

The Government opted in to the directives on the right to interpretation and translation in criminal proceedings and on the right to information in criminal proceedings. I do not know whether that was because they were prior to regime change at the MOJ—a regime change so dramatic it makes the regime change in Crimea look positively evolutionary by comparison. We disagreed with the Government on the directive on the right to access a lawyer in criminal and European arrest warrant proceedings and voted against them because their arguments were poorly structured and articulated.

I have re-read the debate from 7 September 2011 and I am more than persuaded by the arguments that I put forward on that occasion, even though it did put me at odds with the Chair of the European Scrutiny Committee, something that I am loth to do, given his reservoir of knowledge on these matters. The Law Society Gazette, an esteemed publication, reported me as saying that

“the government’s reasons for opting out of that directive were ‘at best unconvincing and at worst spurious’.”

It went on:

“He said the directive’s requirements are ‘broadly in line’ with current UK legislation and by not opting into it the government would ‘appear to be throwing away an advantage to British citizens’. Opting out at this stage, he said would ‘fatally’ undermine the UK’s authority and leverage during the negotiations. He added”–


“‘it looks as though the government are looking for reasons to opt out at this stage’”—

something that has now become commonplace.

I mention that first, because I think that that directive had more in common with the other two draft directives that we have before us today, and secondly, because we do not resile from voting against the Government when we think that it is appropriate. Interestingly, one of the reasons for not opting in to the draft directive on safeguarding children’s rights is because part of that refers back to the directive on access to a lawyer. We clearly do not adopt that point. There are good reasons for supporting the draft directive on children’s rights, even on the Government’s case, as there are for favouring the right to an appropriate level of legal aid across the EU. The difficulty with supporting those draft directives is that the position is still far from clear.

The House will have been relieved to hear that the hon. Gentleman is persuaded by his own arguments—he is at least clear about that. Can he just tell us, in short, whether his position is that we should opt in to all these measures, or indeed any of them?

That is the purpose of this speech, if the hon. Gentleman will bear with me. In relation to the draft directives on children’s rights and legal aid, the insurmountable hurdles that apply to the presumption of innocence directive do not apply. The difficulty we have tonight relates to some important questions, such as what will the cost be; what are the implications for UK legislation, meaning what would have to change; how far are they necessary harmonising measures; and how far do they fall into the same trap as the presumption of innocence draft directive, meaning how far do they exhort us to do something, rather than actually harmonising. It is quite difficult to say.

Let me explain what I mean. If we look at the very belated letter from the Government on the cost of these measures, we see that, in relation to the draft directive on safeguarding children’s rights, it is estimated that transporting 17-year-olds after being charged to local authority accommodation for overnight detention would cost £2.1 million. A breakdown of that figure shows that an estimated additional 5,200 places in local authority accommodation would be required each year in England and Wales, at a cost of approximately £395 a day for each 17-year-old suspect. With all due respect to the Lord Chancellor, those figures look as though they have been drawn up on the back of a fag packet. They were dreamt up at the last minute because the Committee was quite rightly pressing the Department to come up with a decision and some reason for it.

With regard to legal aid, as my hon. Friend the Member for Swansea West (Geraint Davies) pointed out, we are told that the net monetised discounted cost impact of the article over a 10-year appraisal period, if we opt in to the directive, is estimated to be between £1.5 million and £5 million, with a main estimate of around £2 million. That would equate to an undiscounted cost of approximately £200,000 per annum. Again, it looks as though—I think the Lord Chancellor effectively admitted this—we comply with those proposals. There would not be a great cost in opting in, but it is best to “big it up” and make it look worse than it is. I am afraid that I just do not trust what is in those documents.

My main concern about these measures, as I have said, is the fact that opting in to them would mean passing over jurisdiction to the European Court of Justice. Will the hon. Gentleman tell the House whether his party thinks that it is appropriate for the European Court of Justice to have sway in areas such as legal aid? He seems to be saying that it is not a big deal. Does he accept that the European Court of Justice should not have sway, or does he think that it should?

I do not accept the argument that everything that comes out of Brussels is necessarily evil or inimical to the interests of this country, which appears to be the bizarre position that the Lord Chancellor has painted himself into. Uncharacteristically, we will sit on our hands tonight in relation to two of the draft directives. To answer his question directly, I do not rule out any future opt-in, as of course the Government do not in relation to the directive on access to a lawyer, because I understand that their position is that they still might opt in. Even with the spin that he has put on it, I understand that for at least one of the draft directives there is a possibility that negotiations will lead to an opt-in. I welcome that pragmatic approach. It is a conservative approach, but it keeps the door open, rather than taking the radical approach that the Lord Chancellor would like to be seen to be taking.

Surely the point on legal aid is that this is to protect British citizens who might be wrongly accused and languishing in an unfit foreign prison, and to provide them with some legal support, at a total estimated cost of £200,000—a fraction of the value of the Home Secretary’s house.

My hon. Friend makes a good point which is exactly the one I made in relation to access to a lawyer: it is primarily British citizens abroad who would benefit. Yes, there is a moral purpose in our trying to get other EU countries to adopt the high standards that we have in this country, but there is also a practical purpose in trying to ensure that when British citizens get into trouble abroad they get the best assistance that they can in those countries. That is why it is sensible, where possible—as in two but perhaps not in the third of these draft directives—at least to keep the door open.

I wish that the Government would address these proposals seriously and not in a rhetorical and political way, and that they would respond to the Committee’s requests more timeously. The pertinent quote from the Committee is this:

“We repeat again our disappointment at the poor quality of the Government’s”—

explanatory memorandums—

“on the three proposals forming the Commission’s procedural rights package, particularly in the light of the time taken to draft and deposit them.”

I am afraid that this is becoming typical of the way in which the Ministry of Justice operates. It is to a low standard and it shows a certain degree of, if not contempt, then at least disregard for this House and its Committees. If the hon. Member for Stone cannot elicit discipline and compliance from the Secretary of State, then it is beyond me, but I feel that the debate is poorer for it.

As the hon. Member for Hammersmith (Mr Slaughter) said, the handling of this set of proposals has not been ideal, to put it mildly. The criticisms made by the European Scrutiny Committee have considerable weight. They also suggest that because of time constraints the Committee did not come to the Justice Committee for an opinion on proposals that fall pretty squarely within its remit. That would have been a much more desirable process to follow, and lessons ought to be learned from this.

That process is exactly what we recommend in our report, which is currently awaiting the Government’s response. The right hon. Gentleman and I are in complete agreement about this. The more often it is possible, as in this case it was not, to go to one of the departmental Select Committees for its considered opinion, the better.

Perhaps unusually, my hon. Friend and I are indeed at one on this issue. As Chairman of the Liaison Committee, I give every encouragement to Select Committees to be ready to respond when the European Scrutiny Committee draws attention to matters and seeks opinions on them. That is how the process should work, so that we make the maximum uses of the resources of expertise among Members and, indeed, House staff, that we have built up over recent years.

Let me turn to some of the specific measures. On the presumption of innocence, the basis of the directive is that there might be significant difficulties in cross-border matters when identical standards have not been observed. However, no measurable evidence has been produced showing that cases under the European arrest warrant, for example, have frequently been obstructed over a lack of compliance with identical standards. Therefore, the whole basis on which the Commission is proceeding appears to be weak. The suggested measures would certainly adversely affect the UK provision that in certain circumstances inferences can be drawn from silence. The House has debated this at great length and with some care, and the courts have developed the operation of the system with some care. The caution administered to suspects reflects the fact that adverse inferences can be drawn from silence. These provisions would completely disrupt all those processes.

The biggest danger is one that I mentioned earlier in an intervention—that processes that have satisfied tests under the European convention on human rights would not necessarily pass the test of this directive. We would therefore end up with two alternative sources of challenge to English criminal law, leaving open the possibility of passing one and failing the other. That would be an undesirable state of affairs. It would cause confusion and, indeed, forum shopping, whereby someone could obtain their preferred outcome.

On the recommendation regarding legal aid and access to a lawyer, the jurisdiction both in England and Wales and in Scotland already satisfies the provision. My colleague and friend Sarah Ludford MEP has raised issues about the fact that, without the provision, there is no requirement for access to a lawyer in the state that issues the European arrest warrant. Problems can arise from that. Indeed, we have seen them in practice, whereby, had appropriate legal advice been available in the issuing state, an ill-founded arrest warrant might never have been issued in the first place. That factor needs to be considered in the future as the situation develops.

On procedural safeguards for children, a number of problems would arise if we were to adopt the Commission’s provisions, including with regard to the difference between ages, which has already been referred to, and the mandatory representation issue. As the Lord Chancellor has himself indicated, the United Nations convention on human rights is the most accepted international baseline for the protection of children in legal proceedings. It would be better if we proceeded with these matters through advocacy of that convention and used all the resources available to the European Commission to advocate and support adherence to it, rather than create complications between member states over issues that are not central to the protection of children’s rights.

I feel most strongly about an issue I addressed earlier. I do not want to see the role of the European convention on human rights as the primary European benchmark for human rights undermined by the creation of rival or alternative procedures. That is the danger we would run if we opted into the directives.

I will be brief. It is a pleasure to follow the Chair of the Liaison and Justice Committees. I agree with him and the hon. Member for Stone (Mr Cash) and make a plea to the Government: I know it is difficult and complicated when dealing with the European Union, but it is essential to give this House and its Select Committees as much opportunity as possible to discuss European issues. I am sure that the Lord Chancellor has sought to do that and that he will take that plea away with him for future debates and discussions.

I agree with what the Lord Chancellor has said today: it would be wrong for us to opt into any of the directives. I am particularly concerned about the third directive regarding legal aid and the European arrest warrant. As the House will know, the Home Affairs Committee is not a great fan of the European arrest warrant. We believe it is flawed and that it should be improved. There have been two judgments in the past week—I think the last one came from a court in Florence. The Government need to look again at the issue. I am sure it will be part of the Home Secretary’s discussions with her colleagues when they consider the entire justice and home affairs agenda and the question of opt-outs.

In a rare example of unity among departmental Select Committees, three of them—the European Scrutiny, Justice and Home Affairs Committees—will agree, word for word, a joint report. Given the personalities on those various Committees—indeed, given the personalities of their Chairs—it will be quite an achievement to get almost 30 Members of this House to agree, word for word, on one document, but I think that is what we are about to do.

I support what the Lord Chancellor has said. We need to be very cautious in dealing with jurisdictions, especially as far as the criminal law is concerned. In my view, our criminal law and procedures are different from what happens in the rest of the European Union. The Lord Chancellor is right to let his officials continue to be part of the ongoing discussions, not because we want to convince the 27 other countries to adopt what we do but because if anything comes out of the discussions that would benefit our system of justice we will certainly want to adopt it. I also agree with my hon. Friend the Member for Hammersmith (Mr Slaughter), the shadow Justice Minister. It is important to allow the Government to proceed on the basis that they are, and we should not oppose the motion.

The hon. Member for Hammersmith (Mr Slaughter) quoted his speech in 2011, but it is his speech today that ought to go down in legend and song. Indeed, a sentence from it should be engraved in the deepest, finest granite and remembered by all of us who are interested in this debate, for he got absolutely to the heart of the subject when he said that the problem is trying to impose a system of Roman law on a common law system. That is at the heart of the difficulty of imposing anything from the justice area on the United Kingdom. I rejoice at his saying it, because I hope that it shows a change from his attitude in 2011, when he was quite keen on opting into things. I did not agree with the vision of his previous speech, but this one was of the greatest quality, nobility and thoughtfulness, and I hope that it receives the praise it deserves.

While in this mood of good will, I want to praise the wisdom of my right hon. Friend the Lord Chancellor. In opting out of the three important directives—and, indeed, from the directive on right of access to a lawyer—he has avoided falling into the European trap. A number of directives are coming through in the justice and home affairs area, particularly on the European arrest warrant, which we have opted into, and the trap is very serious. Once we have opted into one thing, the next step is to say that because it is possible for a British citizen to be arrested by a foreign court and taken out of this country to be tried in a foreign place, losing the rights that would normally belong to a British subject, we need to impose other safeguards, but to impose such safeguards we need common rules to ensure that treatment is the same and that we have a pan-European view on the presumption of innocence.

Such a view is needed because a British subject can be taken out of this country and taken abroad without any questioning in this country of whether their trial will be fair and proper. As that can be done under the European arrest warrant, we are led to say that it is only right and proper to have safeguards on the presumption of innocence. Exactly the same applies to the directive on procedural safeguards for children and, tying in with it, the right of access to a lawyer.

Once there is common acceptance of other nations’ legal systems, we begin to say that they will work only if we have common safeguards, and once we begin to accept common safeguards we are effectively implementing a single criminal law across the whole of Europe. Once that has been done, legal aid must of course be unified across the European Union, because the person arrested needs to be able to afford the defence to which they are entitled, in accordance with laws laid down by the centre.

This is not a matter of co-operating with European partners or of saying that there is a proper degree of justice in some European countries to which we are willing to extradite our citizens; it is a question of saying that we believe that ours is the only way to ensure proper justice in relation to some relatively undeveloped judicial systems. I am thinking of some countries that have joined the European Union more recently, particularly Croatia. In our debates about its application for membership of the European Union, we discussed the difficulties in its judiciary and police that were not solved before it joined. Despite the European Union’s requirement that they should be resolved, it was allowed to leave them to be improved after it joined. The same applies to Romania and Bulgaria. Once it has been accepted that such countries have the right to arrest British subjects, it inevitably follows that common standards of protection must be applied, with an overall court of appeal that can review it. Those are the stepping stones towards a single European criminal justice system.

I praise the Lord Chancellor because he is now, I hope, taking the stepping stones in the other direction. We have had the block opt-out. We have restored to the United Kingdom rights over justice and home affairs. Unfortunately, we have not settled on which items we wish to opt back into. When that list comes forward, it is crucial that the things that we opt back into are not used as an excuse for bringing back the measures before us. I am thinking in particular of the European arrest warrant. As soon as that is in, the presumption of innocence must be a pan-European right, because nobody in this House would like a British subject to be deported to a foreign country and not have the presumption of innocence in his favour. The same is true of the other two measures that we are countering.

I hope that in the battles that go on within Whitehall the Lord High Chancellor will know that he has the support not just of Conservative Members but of the bulk of the country in standing up for our common law system against, as the hon. Member for Hammersmith reminded us, a Roman law system that is not suitable for this nation.

I am sympathetic to the directives. The case for minimum standards across Europe has partially been made already. We live in a new Europe where people are mobile and in which people expect minimum standards. I understand that people are attached to their different judicial systems. There is a move in Wales to have a new, devolved judicial system. We could have lots of different and confusing judicial systems everywhere. There is a case for having our rights in Britain, but there is also a case for having minimum standards.

We should take a sensible approach to this matter, rather than our instinct being that everything is wrong and that we should have a block opt-out. There is a cost to British citizens in that. In this case, it is that dangerous criminals will be roaming around Europe and evading detection through confusion and a lack of co-operation.

The presumption of innocence and the right to be present are established in our law. I think that we should trumpet our best practice and encourage the adoption of minimum standards in countries that are entering the European Union. When British people go abroad, they expect those standards to prevail. Instead, we are saying, “We’re doing what we like and we don’t care what you’re doing. If you like it, you can take it, but it’s nothing to do with us.” We should be taking leadership, not being isolationist. It is the mentality of the UK Independence party and the Scottish National party to say, “We know best where we live.” That is certainly not the case.

The children’s rights directive says that there is a right to information, a right to a lawyer and a right to medical examination. I mentioned in an intervention that the age of criminal responsibility in Britain is very low at the age of 10. That is one reason why we need to afford our children the maximum possible protection. They are much more vulnerable than their European counterparts because they can be criminally responsible at a much younger age. In my view, there should be video recording of interviews with children. There is a strong case for medical examination. We are virtually alone in preserving the defence of reasonable chastisement. The British continue the ritual of hitting their children—smacking and all the rest of it. Having medical examinations in such cases is important to protect our children. It is also right that children should have a right to maintain contact with parents and guardians. The lot of children in Britain is not a happy one in comparison with the rest of Europe. We have something to learn. It is wrong to take the arrogant approach that we do everything right and they have all got it wrong.

When people are mobile within one community, they should be afforded the same rights—hence my support for the legal aid proposal. We have talked about costs, and we know that legal aid carries massive costs, but the costs of protecting UK citizens abroad who may have been wrongly accused and left in jail are estimated at £200,000 a year. That is very little to afford people that right. However, in the name of anti-Europeanism we are saying, “Oh, we don’t want them interfering with what we’ve got.” We live in a common judicial market in some senses, and we can have minimum standards while retaining our own laws.

The case is always made that if we agree to one step, the journey will continue endlessly and it will be the thin end of the wedge. I do not accept that. I believe that we should have a more mature and joined-up approach to debates such as this and take a selective view of the directives before us.

I am extremely glad to be able to commend the Lord Chancellor and Secretary of State for Justice for his good decision on the directives. Inevitably, I am pleased that he has agreed with the European Scrutiny Committee. We spent a lot of time on the subject and gave our opinions, and I am glad that he has taken a similar view to ours. That has a consequence, of course, because although we hoped for a three-hour debate, there is no need for one when there is such a healthy degree of agreement between the parties, subject only to a few comments that we have just heard from the hon. Member for Swansea West (Geraint Davies).

Is my hon. Friend struck by the fact that when the Conservative party is Eurosceptic, it is united?

I am indeed. I must be careful in what I say, but I simply note that when the Lisbon treaty was going through the House, I tabled 150 or so amendments, and there was complete unanimity among me and my close friends of the Euro-realist type, who supported those amendments, and the Opposition as a whole. The Conservative party was completely united right the way through the proceedings, for the first time since 1972. My hon. Friend is completely right, and there is a strong lesson there.

Moving on to the substance of the matters in question, Lidington debates form part of a package of measures that were intended to

“significantly strengthen Parliament’s oversight of EU Justice and Home Affairs matters and make the Government more accountable for the decisions it makes in the EU.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]

That was what the Minister for Europe said in his written statement in January 2011, and it is important that we put it on the record. It is therefore disappointing—this is the only caveat to my otherwise considerable appreciation of what the Justice Secretary has done today—that, yet again, the Government were unable to give the Committee adequate notice of their recommended approach to the opt-in decision. That is a great pity, because we would not have needed to request a three-hour debate. There would not have been any need for it, subject to the agreement of the Opposition Front Benchers. I suggest that it would be helpful to understand what steps the Government intend to take to improve the process for holding Lidington debates and how they will ensure that their internal decision-making procedures do not continue to hamper the timely provision of information to Members of Parliament.

I also wish to make a point about explanatory memorandums. In the Committee’s initial report, we stated that we were not satisfied with the quality of the memorandums relating to all three proposals that we are discussing today. We have said that before, but I wished to put it on record again. That is a matter of concern to us in relation to not just the Ministry of Justice but Departments in general. The explanatory memorandum is the most important information that can be made available—I do not mean when compared with everything else, but it is important in its own right. It is therefore extremely important, as we say in our European Scrutiny Committee report—for which we are awaiting the Government’s response—that explanatory memorandums are of sufficiently high quality, because that is the basis on which we hold the Government to account. When they explain in a memorandum the policy that underlies their decision, that should be the basis on which we are able to address the House, and be sure that the Government are answering the questions that we have put and are coming up with a policy that is coherent and makes sense.

The first of the three draft directives under consideration is that on the presumption of innocence. Its scope, which sets out certain rights that could be interpreted more widely than similar rights in the European Court of Human Rights by the Strasbourg Court, is a matter of great concern, and I am extremely grateful for the remarks of the Chair of the Justice Committee on that issue. I am also glad that the Lord Chancellor has made it clear that at no stage will that measure be opted back into, and I will give one or two reasons by way of amplification.

To take up the point made by the Chair of the Justice Committee, there would otherwise be different European Union and European Court of Human Rights procedural standards, which could cause legal uncertainty and confusion. That has now become an extremely topical question when applied to the judiciary. Members may have noted that, in their varying ways and without going into the detail, Lord Judge, Lord Sumption, Lord Mance and Lord Neuberger, the President of the Supreme Court, have all made incredibly important statements, in the most measured terms, about their concerns over the manner in which the Strasbourg Court approaches some of its judgments. This is not the time to go into all the detail, but I strongly recommend that their respective speeches are read by those who read these proceedings.

It is very important that people understand our concerns as members of the Conservative party—and indeed of other parties. Furthermore, some of the arguments that are presented as if we are just Eurosceptics who are out to be critical for the sake of it, are now increasingly supported—however discreetly—by some of the most eminent members of the judiciary in our analysis, which has taken a great deal of time and expertise to develop. It is important to remember that our arguments about the directive on the presumption of innocence are illustrative of the broader question of the methods of interpretation, for example, and the procedural standards in the two different Courts I have mentioned.

On procedural standards, in a nutshell, those based on European Union law override national law. As I said in an intervention, that means that the ability to draw adverse inferences from the silence of the accused, although compliant with the European Court of Human Rights, would become unlawful under European law if the United Kingdom participated in the proposal. That is dangerous, given that we have spent the best part of 600 years in the development of a common law on such matters, some of which—for those who watched it—were well illustrated in last night’s programme on the Plantagenets and Henry II. It was an interesting programme, much of which dealt with how we developed our common law.

The fact is that our courts have a system of appeal. The trouble with EU law in matters as important as the presumption of innocence, which is absolutely at the heart of Magna Carta and absolutely at the heart of our common law system, is that they would be eviscerated if the European Court of Justice were to apply the principles set out in this directive. The consequences would be for section 3 of the European Communities Act 1972, passed all those years ago, to be binding on our judicial system, with no right of appeal once the European Court of Justice has adjudicated. That is different from the European Court of Human Rights, which we can override much more easily. I contend that we can put in a provision in an Act of Parliament to rectify that, by saying that, notwithstanding the European Communities Act, we will not accept this particular piece of legislation and thereby preserve our sovereignty. It is this kind of matter that is under discussion on the basis of the European Scrutiny Committee report, to which I referred earlier and on which we await the Government’s response. It is that important: there is no appeal from the European Court of Justice.

I spent two days in Rome last week discussing the question of fundamental rights with some extremely eminent lawyers from throughout the European Union. The Prime Minister of Italy was there, as were a range of other people: Mr Prodi, who used to be the President of the European Commission, people from the Council of Europe and from the European Union Agency for Fundamental Rights and so on. I have to say that there was a great deal of disquiet at the manner in which the European Court of Justice operates in all cases. There are questions about the qualifications of the judges, the methods of interpretation and the issue of process. I will not go into those in detail, other than to put it on the record that the reason why the Government are right, why the European Scrutiny Committee is right and why it is right for this House to agree not to opt into these arrangements, is not just related to the question of the presumption of innocence in its own right, as important as that is. There is a much broader lesson to be learned on the manner in which the European Court functions and the whole question of the supremacy of Parliament. That lies at the heart of the Committee’s report and its recommendations that, if necessary, we should regain the right to veto legislation that we do not think is in the national interest, and to repeal unilaterally at Westminster legislation that is manifestly not in our national interest.

I will now move on to the directive on procedural safeguards for children. Members may want to note that the Committee’s report said that it would be disadvantageous for the Government to opt into this proposal, because the protection of a certain category of vulnerable defendant is best left to national policy and discretion. The differing approaches to the definition of the word “child” for the purposes of criminal procedural protection in England, Wales, Scotland and Northern Ireland demonstrate this point. There is a caveat to what the Lord Chancellor said in response to an intervention by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). We want to be sure that this would never be opted into. I heard what he said: he clearly would not want it to be. I suspect there may be a bit of coalition politics behind this, so I will not go down that route now. I hope that that will be resolved and that we will effectively find that this directive does not apply at any time. The Government’s estimates of the costs of an opt-in decision to the police and criminal justice system, and the costs of changes in domestic legislation in the context of the Police and Criminal Evidence Act 1984, are also relevant considerations.

Finally, Members should be aware that the Committee has expressed the view that the Government should not opt into the proposal in the directive on legal aid for two reasons. First, article 5(2) is premised on the directive on access to a lawyer, into which the United Kingdom has not yet opted. Secondly, the proposal would impose both a financial and a regulatory burden on the United Kingdom.

My function in my capacity as Chairman of the Committee is to set out the parameters and, in some detail, the Committee’s reasons for reaching its conclusions. I cannot say how delighted we are that the Government agree with us. I think that everyone’s concerns have been dealt with, and I therefore have no more to say on the subject—at any rate, for the time being.

I thank all Members who have contributed to the debate. I am delighted to discover that there is a consensus across the House on the approach that we have recommended, although it seems not to include the hon. Member for Swansea West (Geraint Davies).

We heard some interesting contributions. Having quoted from comments that he made two years ago in the Law Society Gazette, the hon. Member for Hammersmith (Mr Slaughter) compared regime change in the Ministry of Justice to regime change in Crimea, which may be considered to have been a slight exaggeration. He then agreed with us, although I note that he did not answer my question about whether he shared our concern about the jurisdiction of the European Court of Justice and the implications for our own legal position of signing up to measures of this kind, given that, if we do so, jurisdiction will pass from our courts to the ECJ.

I apologise to the three Select Committees for the delays that have occurred, but they will understand that, in this day and age, there are a number of debates to be had—in this Parliament, in Brussels, and sometimes in Government—before we finally reach a decision that can be presented to the House. I will always endeavour to ensure that information is given to Committees in a timely way, but I am sure that my hon. Friends will agree that it is better to have the right decision than to have an early decision.

That is true, but it is better still if, rather than our waiting until the Government have finally formed a view, the support and help of Committees is obtained at an early stage in the process.

I entirely accept that. We will try to ensure that we do what we can to supply the right information to Committees in the future.

The right hon. Member for Leicester East (Keith Vaz), who is no longer in the Chamber, made the valuable point that we should be cautious about the issue of jurisdictions. That is what lies behind my concern about measures such as these. It is important to understand that an opt-in is not—as was implied by the hon. Member for Swansea West—a simple process. It is not just about setting an example to the rest of Europe. It is about accepting the jurisdiction of an international court in regard to important areas of law. As was pointed out by my hon. Friend the Member for Stone (Mr Cash), there is no right of appeal following a ruling from the European Court of Justice. My hon. Friend also rightly observed that our judiciary are increasingly concerned about the role of international courts. On a number of occasions recently, they themselves have suggested that decisions that should be made in our courts and our Parliament are now being dealt with on the international stage. It is clear that that is causing some discomfort to at least some of them.

Will the Justice Secretary confirm that the Government are still negotiating on the issues of children’s rights in courts and legal aid, and that those negotiations have not been stonewalled?

We have told our European partners—and will do so again if the House approves the motion tonight—that we will not take part in negotiations on the first and third directives, on the presumption of innocence and on legal aid. We will say up front that we do not intend to opt in, either now or in the future. That is a decision that has been agreed across Government, and one that we do not intend to reverse. We will provide observers for the negotiations, but they will not participate in detailed negotiations. As I said, on the second directive involving children we do not intend to opt in; we will indicate that up front. We will participate in the negotiations in case, although it is unlikely, something emerges that this House may want to consider again, but it remains the Government’s position that we do not expect, nor want, to have to opt into the directive, but we will sit around the table while it is negotiated.

There is clearly a broader issue here about minimum standards measures. As my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) pointed out very articulately, what we must understand is that we have a different legal system from the rest of the European Union. The hon. Member for Hammersmith made the same point. If we accept minimum standards measures, step by step they take away the ability of this Parliament and of our courts to shape our justice system. If we decide on any occasion to opt into such a measure, it is of paramount importance that we understand the implications of doing so.

To add to that point, the other member states by and large have written constitutions, while we operate by a process of precedent through the common law. In many respects that would change were we to move to a system that enveloped us within a framework of European Union law, which would change the nature of the decision-making process. As my right hon. Friend so accurately says, this is a huge change because it is about jurisdiction, interpretation and the rights of the individuals who are affected.

My hon. Friend is absolutely right, and that is why I fundamentally disagree with the Commissioner who set out her vision a few days ago for a European common justice area by 2020. I do not believe that is right for this country. I believe there are areas where it is important to collaborate with our partners in fighting international organised crime, but I do not want to see our justice system, which commands respect around the world and brings extensive legal business to London, subsumed into something that is Europeanised. That is why I draw a very clear line, in consideration of European measures, between those that are essential in dealing with the real issues of cross-border crime and those that are about subsuming our system into common processes. I am thinking in particular about the presumption of innocence aspect, which to my mind intrudes clearly into the ways of working in our courts. I am pretty confident that a large part of our judiciary would not wish to see the processes they follow each day shaped by decision making at European Union level.

I am very clear that I do not want the UK to be part of these measures. I am glad to have received the support I have in the House tonight. I hope that the House will endorse the approach that we are taking to keep us outside the three measures.

Question put and agreed to.


That this House takes note of European Union Documents No. 17621/13 and Addenda 1 to 3, a 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, No. 17633/13 and Addenda 1 to 3, a draft Directive on procedural safeguards for children suspected or accused in criminal proceedings, No. 17642/13, a Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, and No. 17635/13 and Addenda 1 to 3, a draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European Arrest Warrant Proceedings; and agrees with the Government that the UK should not exercise the opt-in to these measures.