Mr. Howarth: No. I am making a distinction between the right of sovereign states to make decisions about their own legal systems and our role. Is it appropriate for us to be making such judgments? I have quoted one case, but I would not say that it could never happen. However, that seems to be the hon. Gentleman's point as regards whether one can trust a Spanish or Greek court to reach a proper legal decision by due process. He has repeatedly quoted the Pinochet case. As a junior Minister in the Home Office at the time, I was aware of the lengths to which the then Home Secretary went in order to judge that case. The hon. Gentleman went on to state his concern for the Parliamentary Under-Secretary of State for the Home Department, my hon. Friend the Member for Coventry, North-East (Mr. Ainsworth), who, at some point in the dim and distant future, might be called upon to account for his actions by some foreign court, when he happens to visit Paris or somewhere else and becomes the subject of extradition proceedings. I cannot imagine that happening, but if my hon. Friend the Minister were to fill Coventry football stadium with political opponents and butcher them, I would hope that he would be extradited at some point. The hon. Gentleman's example is not an edifying one. Although the Pinochet case was far more complicated, it does not serve his argument well.
Mr. Boris Johnson (Henley): I am grateful for the chance to speak in this debate and apologise for my earlier absence. I want to say how much I agree with
Column Number: 222my hon. Friends the Members for Surrey Heath and for Stratford-on-Avon, as well as with the Liberal Democrats, on their lucid exposition of the differences between our judicial system and the Italian system. I plant my flag firmly on all the arguments about Pinochet and the risk to Ministers. I do not know why the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) underestimates the chances of the Minister acceding to some great office of state in which he might be vulnerable to future prosecution. After all, not only Pinochet but Ariel Sharon and many others have been sought by European magistrates.
All hon. Members on this side of the argument are making fundamentally the same point: the Bill raises difficult questions about what constitutes a crime in this country and abroad and makes conflicting assumptions about what constitutes a fair trial in this country and abroad, in category 1 countries. The Government's answer is that all the problems will be miraculously resolved by adopting the principle of mutual recognition. I want to mount a four-square attack on the use of that phrase in this context, because I do not believe that it can logically be applied to the criminal justice system, and I propose to explain why.
Let us suppose that this side of the Committee is Britain and the other side is Belgium or, as I do not want to be xenophobic, let us suppose that this side of the Committee is Greece and the other side is Germany.
Mr. Howarth: I do not want to be German.
Mr. Johnson: All right; the hon. Gentleman can be Spanish. Let us suppose that the other side of the Committee is Spain. There is an ancient law on this side of the Committee, in Greece, that water should be served to Members gently carbonated. An ancient law in Spain provided that water should be served to members still. The principle of mutual recognition, which those hon. Members who have studied the European Community will know well, is that we will recognise their still water if they recognise our fizzy water. There should be free circulation of both types of water within the great area of this Committee Room. I hope that I am making myself clear.
That is the principle of mutual recognition established by Cassis de Dijon, the famous European court physician in 1971. It is an important law, but we cannot readily transpose that doctrine to the criminal justice system. Nor should we; it would be a manifest absurdity. The Minister wants us to accept that mutual recognition should mean our accepting the Spanish law on xenophobia, but he neglects the corollary, as it is generally understood in the European Union, which is the duty of the Spanish to recognise our law on xenophobia. If we say that something is not criminal, the Spanish should accept it, just as we have to accept it when Spain says that it is criminal. That produces a singularity and a contradiction. Both assertions cannot be simultaneously true. It cannot be true that mutual recognition requires criminality to exist in this country and in Spain at the same time. Mutual recognition cannot therefore be readily transposed to the criminal justice system.
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Mutual recognition means that if there are two standards on the same question, both must be accepted—that if the German Government say that something is a vegetable and I say that it is chocolate, then we must both be right. That is the principle of mutual recognition. However, if someone says that something is criminal and I say that it is not criminal, we cannot both be right. It is not possible for both standards to operate throughout the territory of the EU. I hope that my purpose is clear.
Mr. Ainsworth: I ask the hon. Gentleman a simple question that goes to the heart of the differences between us. If he goes on holiday to Spain—I know that he often goes to more exotic places, but I shall follow his example—which law should he obey while there? Does he believe that he ought to abide by British law or Spanish law while in Spain? If he believes that he should abide by Spanish law, what huge principle says that he should be immune from prosecution for breaking Spanish law when crossing the border and returning to the UK?
Mr. Johnson: There are several obvious retorts to that question. The first, which has been well rehearsed in Committee, is the case of the plane-spotters, who according to a common-sense application of British law were doing something entirely legal. The second is the contention that the person need not be in Spain to do something in breach of Spanish law that might, as I understand the Bill, make him liable to extradition. One could commit a computer crime or a xenophobic offence in this country that had an effect in Spain, and under Spanish law one might be liable to extradition to that territory for an offence that was either not an offence in Britain or not even committed in Spain.
The Chairman: Order. I remind the hon. Gentleman that we heard much of that debate when we considered part 1. I appreciate that he was not able to be present for that, but I am reluctant to allow him to spend too long going over what has been thoroughly debated. Clause 193 relates to the powers of the Secretary of State and I would be grateful if the hon. Gentleman would address those issues.
Mr. Johnson: I am grateful to you, Miss Begg. Unless I am much mistaken—you will correct me if I am wrong—I do not believe that the point about mutual recognition has been made. I do not believe that anyone has said that the principle of mutual recognition has been wildly misapplied and is a logical absurdity in this context. It is important to get that on record. Here I am; I am meant to apply my brain to these questions. I do not understand how one can honestly and logically call the concept ''mutual recognition''. We are not invoking mutuality between two systems of criminal justice and saying, ''We'll recognise your law on the age of consent if you recognise our law on xenophobia.'' That is not what mutual recognition means. Mutual recognition means saying, ''We'll recognise your law on xenophobia if you recognise our law on xenophobia.'' It is meaningless when applied to criminal justice cases.
As the Minister said, there might be good reasons why we would want to import different standards of
Column Number: 224law and make our citizens subject to a higher standard of criminality. However, that principle is not mutual recognition. We operate under the principle invoked by the Bill that if there is a cross-border criminal case and there is disagreement between the two legal systems, it will always be assumed that criminality is present. I do not know whether this has already been demanded—if so, you will have to forgive me, Miss Begg—but I would like the Minister and the Government to produce the following for the benefit of the people of this country who will be obliged to take cognisance of this law: an exhaustive list of the possible offences for which they could be done under the 32 generously drawn categories. That would allow British people to know which law is likely to apply to them, because it is not the law that would have been passed by Members of this House. That is the least that the Government could do.
Mr. Hawkins: Will my hon. Friend give way?
Mr. Johnson: Of course.
The Chairman: Order. Before the hon. Member for Surrey Heath speaks, may I remind him that the hon. Member for Henley (Mr. Johnson) has ignored my instructions? We are straying very wide of the clause.
Mr. Hawkins: I entirely understand that, which is why I was intervening on my hon. Friend. Does my hon. Friend agree that it is for the reasons he set out that Conservative Members believe we need a wider set of safeguards to protect against injustice for the Secretary of State? That is the relevance to the debate of what he said.
Mr. Johnson: I am grateful to my hon. Friend who has led from the front throughout our proceedings. He leads me directly to the conclusion of my remarks, something you will be delighted to hear, Miss Begg.
Mr. Burnett: The hon. Gentleman is also promoting two very important principles: first, the minimum standards of justice; and, secondly, how anyone can know whether they are committing an offence overseas that forms part of the 32 offences because it is almost impossible to define the offences and no one knows what they mean.
Mr. Johnson: Hear, hear. The hon. Gentleman puts his finger on it. I hope that the Government are taking note and that they will produce a list of the possible offences. They are taking legal certainty away from the British people, which is wrong. To echo my hon. Friend the Member for Surrey Heath, that is why we need the Home Secretary's final decision in these matters, why it is not enough simply to leave it to the district judge to decide whether to extradite in cases where no dual criminality exists, and why we want the extra safeguard of the people's representative in the form of the Home Secretary who has a democratic mandate. I hope that the Minister will give us the necessary assurances and expunge from the Bill any reference to mutual recognition that has been wildly misconstrued.
|©Parliamentary copyright 2003||Prepared 21 January 2003|