The House of Commons decided, yesterday, pursuant to Article 6 of Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality, to send to the Presidents of the Council, the European Parliament and the Commission a Reasoned Opinion stating 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.
During the debate Bill Cash made the following interventions:
The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara): 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 which 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.
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Mr William Cash (Stone) (Con): 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?
Mr Vara: 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.
Julian Smith (Skipton and Ripon) (Con): 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?
Mr Vara: 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.
Mr Cash: 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?
Mr Vara: 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.
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Mr William Cash (Stone) (Con): 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.
Mr David Nuttall (Bury North) (Con): 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.
Mr Cash: 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.
Jacob Rees-Mogg (North East Somerset) (Con): 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?
Mr Cash: 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.
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Mr Cash: 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.
Mr Nuttall: 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.
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Mr Cash: 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.
Mr Vara: 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.
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Question put and agreed to.
Resolved,
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.
