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29 Jan 2008 : Column 187

Mr. Heathcoat-Amory: My hon. Friend makes the important point that the Government did not want these provisions. I have a list of the 40 amendments tabled by the Government representative at the Convention on the Future of Europe, the right hon. Member for Neath (Mr. Hain), of which only two succeeded: one of them deleted “safety” and inserted “security”. If that is a negotiating triumph, does my hon. Friend wonder what a failure might have been like?

Mr. Grieve: My right hon. Friend makes a good point. The fact is that the Government lost out in the negotiating process and did not achieve their aims. Perhaps they were in a difficult position. Somewhere in the Departments, somebody is advising the Home Secretary, correctly, that the developments in criminal justice that the European Union wish to pursue do not sit easily with notions of national independence, which in this country are underpinned by the rule of law and our common law principles. There is no escaping that; it is part of our national tradition. The same applies to Scotland, which also has a common law and Roman-Dutch law tradition mix. Such a system does not fit neatly with a Napoleonic model, which much of the parts of the treaty that deal with judicial and criminal matters are all about.

Tony Baldry (Banbury) (Con): Following the point made by my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory), whether one is Euro-positive or Eurosceptic, the intellectually disingenuous part of the Government’s position is that they broadly welcome the Lisbon treaty, but whenever they are challenged about something nasty in it, they say, “Don’t worry, there is a red line.” Intellectually, one cannot have it both ways. We heard very little from the Home Secretary about the so-called red lines. Does my hon. Friend have any confidence that the red lines—if they are necessary, as the Government say they are—will hold?

Mr. Grieve: I have serious doubts about the red lines, and I shall come back to them in a moment, but my hon. Friend makes another important point. The Home Secretary spent most of her time saying that the red lines would provide protection, but the rest of her speech dealt with how international co-operation facilitated by the EU had benefited this country. I have no reason to disagree with that in some cases, although I might in relation to some examples. What she was not prepared to debate was the text of the treaty. It is the treaty that we are signing. We might have opt-ins, but it is the treaty to which we wish to become a party, and it envisages a major and profound change, taking the European Union from being an economic grouping with common interests in social policy areas to one with a single justice system. That must be where we are going.

Mr. Cash: In relation to Denmark, and the Home Secretary’s claim that there was some sort of negotiating triumph, the Danish position has been preserved in the words of one of the protocols. Judicial co-operation will continue to apply to Denmark, unchanged in its present form, even if subsequently amended or replaced under the reform treaty. We did not, therefore, even do as well as Denmark.

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Mr. Grieve: My hon. Friend is right. I tried to intervene on the Home Secretary to ask her about that. The European Union could not afford to give the United Kingdom the opt-outs that it gave Denmark because of the difficulties arising from our participation in several key areas. The Home Secretary simply did not reply to that point—I do not know whether she will do so during the debate. However, it is a material issue for the House to consider.

Bob Spink: Perhaps my hon. Friend can set out the nine important aspects of home affairs and justice that the treaty will abolish and that this country is effectively surrendering to the EU, and the impact of that surrender on our control of home affairs in this country?

Mr. Grieve: I fear that I might disappoint my hon. Friend because it is a three-and-a-half-hour debate and I cannot do what he asks unless I prevent all my hon. Friends and all other hon. Members from contributing. I intended to use some examples to cover my points, albeit not comprehensively, but we have been denied the opportunity to debate individual amendments.

Mr. Gummer: Does my hon. Friend accept that the House could do itself more justice if the Government allocated suitable time for the issues to be debated properly? Those of us who support the treaty of Lisbon could then explain the basis of our support. The Government have refused all of us the right to debate the issues.

Mr. Grieve: I agree with my right hon. Friend. My experience of the Chamber is that, if one bothers to come in and listen to the debate, one learns a great deal, especially from other people’s points of view. What really gets me is that we are reduced to soundbites over a short period instead of being allowed to consider measures properly. That is one thing that will ultimately do the Government in. It is a shameful state of affairs, which means that Bills are passed without our fully understanding the Government’s position, and the Government do not listen to their critics’ comments, which might enable measures to be improved.

Mr. Jenkin: Learco Chindamo committed the notorious murder of headmaster Philip Lawrence and the Government spent a considerable amount of money on trying to extradite him to his home country. They failed because of the provisions on free movement of persons. Is not it a failure of their negotiation that we still cannot, under the treaty of Lisbon, automatically extradite the foreign criminals whom the Prime Minister promised we could extradite?

Mr. Grieve: The Government were foolish to sign up to the relevant directive without scrutinising it properly—another thing in which, I fear, the House rather specialises.

Mr. Redwood: Will my hon. Friend confirm that, every time the Government opt in to an area of competence under the treaty, the House can no longer reach a free and independent view and repeal and amend it and it cannot be debated sensibly in a general election? The people, as well as Parliament, have lost their power.

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Mr. Grieve: My right hon. Friend is right and I shall deal with that point towards the end of remarks.

Let me consider, not thoroughly because I do not have the time, examples of the Lisbon treaty’s not matching up to what the Government claim or the Government’s opinion of it when the text was being negotiated in the past few years. Let me begin with article 61. The Home Secretary issued a parliamentary Labour party briefing today, which states:

Indeed, the Government have argued that internal security must remain a national issue, yet article 61 specifically provides:

The status of that committee and whether it is the embryo of a far more bureaucratic model for ensuring conformity in nation states remain entirely unclear. There is a generic power under article 61G for the Council to “ensure administrative cooperation” between national police and criminal justice systems, which will arguably allow the Commission to gain access to sensitive national information.

During the negotiations, the Government criticised the article and said that they considered it to be unacceptable and unnecessary and sought to get it deleted, but failed to do so.

Mr. Ken Purchase (Wolverhampton, North-East) (Lab/Co-op): A good negotiating stance.

Mr. Grieve: The hon. Gentleman may say that, and I could forgive the Government if there were just one or two isolated examples. However, one can go through the text of the treaty and find one example after another of where the Government said that they thought the text was unnecessary and dangerous from the United Kingdom’s point of view, but then accepted it.

Mr. Purchase: That is absolutely correct. If the hon. Gentleman had ever been in negotiations, he would understand that one takes a “give some, take some” approach. What our Government set out to do in that negotiation was to achieve their red lines, and that is what they have done.

Mr. Grieve: What happened in the negotiations calls for some explanation from the Government, but we have not yet heard a word of explanation from the Home Secretary.

It is argued that co-ordinating immigration policy might have benefits. I fully acknowledge that, but let us consider just one thing: the rights of third country nationals, including those who might have irregular status or be having their status regularised, to move around the EU at will. The Government said that they considered the retention of a national immigration policy to be essential. That was rather strong language, but they clearly no longer consider that essential, because they have allowed the provisions to which they objected to go through.

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The hon. Member for Wolverhampton, South-West (Rob Marris) commented, quite rightly, on civil justice. The Government were seriously concerned about a clause in article 65 on civil justice and the maintenance of judicial independence. If I may say so to the Home Secretary, that does not seem to be a slight matter. The Government’s concerns concentrated on the fact that, in a rather innocuous form, article 65 said that it would provide

The Government were not against that; indeed, one can see that it might be quite useful in some European countries, particularly some of the new accession members. The Government wanted the inclusion of an easy little phrase that would recognise the need to maintain judicial independence, but the European Union negotiators—the other participants—denied them that amendment.

What is the Home Secretary’s view about that? Does she consider it irrelevant? I should like to give her an opportunity to intervene, if she wants to. I do not think that the independence of the judiciary is an irrelevant consideration, so I hope that we shall hear from the Government at some point in this debate about that important point.

There are other examples to which one can turn, particularly in the field of crime and justice. Crime and justice, despite the Home Secretary’s trying gently to avoid the point, have never been subject to any of the European Union architecture, until now. There is bilateral co-operation under the aegis of the European Union, but there is no enforceability in respect of the agreements that we reach. That is to change, particularly if the Government choose to opt in.

What are we to make of article 69A, which provides, for example, that there may be provision for the EU to take powers to deal with

I simply say this to all my hon. Friends—to those who may be in favour of the treaty or those who may be against it: the House is entitled to an explanation of why that provision is included, what the Government think about it and whether, leaving aside the opt-in for one moment, they think that there is any risk of intrusive activity by the Commission and the European Court of Justice in criminal procedure, which is an area in which they have consistently said that they ought not to be involved? Indeed, the Government said:

In terms of the generality of the treaty, however, they have secured nothing of the kind.

Rob Marris: Does not article 82 on page 70 of the consolidated text document, of which the hon. Gentleman will no doubt have a copy, state:

Mr. Grieve: That might be the case, but the Government’s position has consistently been that the European Union should not intervene in criminal procedure. I shall make
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a few more comments about this in a moment, but I say to the Home Secretary that the potential undermining of the criminal justice system through the mechanisms of the treaty is without doubt the most serious aspect of the treaty in its entirety. It has nothing whatever to do with the legitimate aims of the European Union.

Mr. Denis MacShane (Rotherham) (Lab): Is not the most important part of any criminal procedure its very beginning, when a person is arrested? Is the hon. Gentleman really saying that he is going to revert to the old Tory position of hostility to the European arrest warrant?

Mr. Grieve: I shall come on to the European arrest warrant later. The right hon. Gentleman sometimes leaps up like a jack-in-the-box, but I have a funny feeling that he might not have been in the Chamber during the Home Secretary’s opening speech, otherwise, he would have heard the exchanges on this issue. I recommend that he read them in Hansard, but I will come back to this matter later.

Mr. Kenneth Clarke (Rushcliffe) (Con): Does my hon. Friend accept that, if we are to have mutual enforcement of criminal rules between the 27 member states, it is legitimate to have minimum standards of protection for individuals in all our criminal procedures, particularly as the treaty makes it clear that, if we wish, we can impose higher standards in our procedures—as we choose to do—to protect individuals in our criminal process? Is there really anything wrong with that? Are we to help to facilitate criminal processes in other countries if they are not respecting the minimum standards that the 27 member states expect to be followed?

Mr. Grieve: My right hon. and learned Friend must consider the extent to which this might be an opportunity for rules to be made and imposed on our criminal procedures from outside. This raises difficult issues. As I said earlier, I do not object to the concept of international co-operation and treaty-making in order to achieve desired goals. I suggest, however, that there is a difference between a treaty reached under the aegis of the EU under third pillar structures—which seems to have been working well, and the Home Secretary told us all about the good things that have come from it—and a system in which we accept, once we have opted in, that areas of criminal justice policy and any amendments made to them will, for ever thereafter, be subject to the control of the Commission and the European Court of Justice. I do not think that that is a slight matter.

I have to say to my right hon. and learned Friend that one of the great failures of the Government has been to persuade their European partners of the success of the unanimity provisions and the third pillar, and to allow them to go gallivanting down this road. Articles 60 to 69 of the treaty seem to be a blueprint for achieving a Napoleonic system of justice throughout the countries that are signing up to it. It is perfectly plain that that is what is going to happen.

Mr. Kenneth Clarke rose—

Rob Marris rose—

Mr. Grieve: There is a competition, so I give way first to my right hon. and learned Friend.

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Mr. Clarke: I am grateful to my hon. Friend and I am pleased that he accepts the Maastricht settlement, the merits of which I recall having great difficulty persuading many colleagues when I was Home Secretary and taking it through the House. My hon. Friend is quite right to accept the co-operation that we now have and to say that the big change is that there will no longer be the third pillar, as provisions will be subject to the institutions. However, to take up his example of a few moments ago, is my hon. Friend really saying that there is a serious danger of the majority of other member states seeking to impose on us higher minimum standards of protection for the individual in our criminal processes than this House would find acceptable? I really think that that fear is fanciful: there might technically be a risk, but I have to say that, with respect, I simply do not believe that it will arise.

Mr. Grieve: May I take my right hon. and learned Friend back to the European arrest warrant? There might be arguments for the desirability of the European arrest warrant to speed up process, but I have to tell my right hon. and learned Friend that it would be impossible on any reasonable analysis to argue that the European arrest warrant has improved protection for defendants facing extradition. I do not think that my right hon. and learned Friend would attempt to say that, because it has short-circuited many of the rights that defendants previously had. If I may say so, that seems to me to be the precise area of criminal procedure that I was trying to highlight. Of course I accept that it is most unlikely that someone will come along and tell us that we have to change our criminal justice processes, but it could happen in areas where the EU is seeking to ensure conformity between countries—it will apply if we are opted in—in respect of practices that have cross-border implications. I really do not think that that can be brushed aside so simply.

Rob Marris: I am grateful for the hon. Gentleman’s generosity, but may I draw his attention again to article 82? Contrary to what I understood the hon. Gentleman to say, this procedure goes through the European Parliament and the Council and in a sense provision is made for all states to opt out. Let me quote the article again. It states that the rules concern the

I emphasise “unanimously” and I put it to the hon. Gentleman that he seems to be overlooking the fact that this is a two-way street. If we are talking about minimum standards, they are minimum standards that protect my constituents in any of the other 26 member states. That is desirable. The hon. Gentleman must look at both sides of the coin.

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