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Mr. Francois: I beg to move amendment No. 214, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 1, paragraph 51, replacement Article 35 TEU, relating to jurisdiction of the European Court of Justice over police and judicial cooperation in criminal matters; and
The First Deputy Chairman: With this it will be convenient to discuss the following: Amendment No. 132, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 63, replacement Title IV TEC (TFEU) relating to an area of freedom, security and justice; and
Amendment No. 133, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 64, replacement Chapter 1 and Articles 61 to 61I TEC (TFEU), general provisions relating to an area of freedom, security and justice; and
Amendment No. 207, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 64, inserted Article 61D TEC (TFEU), providing for a standing committee on internal security; and
Amendment No. 208, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 64, inserted Article 61G TEC (TFEU), providing for measures to ensure administrative cooperation between national departments and
the Commission in the area of freedom, security and justice; and
Amendment No. 136, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Chapter 4 and Articles 69A to 69E TEC (TFEU) relating to judicial cooperation in criminal matters; and
Amendment No. 8, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Article 69A, TEC (TFEU), relating to judicial cooperation in criminal matters; and
Amendment No. 9, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Article 69B TEC (TFEU), relating to the definition of criminal offences and sanctions; and
Amendment No. 212, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Article 69D TEC (TFEU), relating to Eurojust; and
Amendment No. 10, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 67, inserted Article 69E TEC (TFEU), relating to the European Public Prosecutor’s Office; and
Amendment No. 213, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 68, inserted Article 69F TEC (TFEU), relating to police cooperation; and
Amendment No. 137, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 68, inserted Chapter 5 and Articles 69F to 69H TEC (TFEU) relating to police cooperation; and
Amendment No. 11, page 1, line 12, after ‘excluding’, insert—
‘(i) Article 2, paragraph 68, inserted Article 69G TEC (TFEU), relating to Europol; and
Amendment No. 216, page 1, line 12, after ‘excluding’, insert—
‘(i) Protocol on Transitional Provisions, Article 10, paragraphs 3, 4 and 5, relating to Acts of the Union in the field of police cooperation and judicial cooperation in criminal matters; and
Amendment No. 26, page 1, line 13, after second ‘to,’ insert—
‘(i) the area of freedom, security and justice; and
New clause 4— Protection of existing police and criminal justice obligations —
‘(1) Before the expiry of the transitional provision included in Article 10 of the Protocol on Transitional Provisions, the United Kingdom shall notify the Council that it does not accept the powers of the European Union institutions described in Article 10(1) of that Protocol over acts adopted before the entry into force of the Treaty of Lisbon.
(2) In this section, “the Council” means that European Union institution founded on Article 16 of the Treaty on European Union.’.
New clause 7— Disapplication of the legislative procedure in relation to justice and home affairs —
‘Notwithstanding any provision of the European Communities Act 1972, nothing in Articles 68 to 89 of the Treaty on the Functioning of the European Union shall be binding in any legal proceedings in the United Kingdom and shall not form part of the law applicable in any part of the United Kingdom.’
Mr. Francois: I do not intend to rehearse yesterday’s arguments about the business motion, which the House debated in some detail. However, we acknowledge the Government’s business motion today, which amended the proposed allocation of time from four and a half hours and one and a half hours to three and a half hours and two and a half hours. The Minister knows that we argued for at least three hours and three hours, but the today’s motion was a move in the right direction, given the large number of amendments that we have only two and a half hours to debate.
I noticed earlier when we were debating the motion a number of Back Benchers who were keen to speak but who were barely able to contribute at all. I particularly noted that my hon. Friend the Member for Stone (Mr. Cash) spoke for 30 seconds, which I wish to nominate as the shortest ever speech in the House of Commons. I make the point to the Minister that a number of Back Benchers who are experts on the subject were not able to speak in the earlier debate. I hope that the Front-Bench speeches will be relatively brief, to allow the maximum number of Back-Bench contributions. I shall do my best to abide by that self-denying ordinance myself.
The effect of our amendment No. 214 would be to undo one of the most important and damaging changes contained in the Lisbon treaty, which is the EU constitution by another name. The current article 35 of the treaty on the European Union limits the jurisdiction of the European Court of Justice over the extremely sensitive area of criminal justice and co-operation on policing—all areas where the EU’s powers are considerably extended by the treaty of Lisbon.
Until the time of the EU constitution, it was effectively a matter of cross-party consensus that it was vital that the powers of the European Court of Justice should be limited in that way. As Tony Blair said just before he became Prime Minister,
“we restate our agreement to justice and home affairs remaining outside Community competence”—[ Official Report, 16 December 1996; Vol. 287, c. 617.]
That was for good reason. As the European Scrutiny Committee noted in its latest report,
“the powers of the . . . ECJ are considerably increased when matters move from the Third Pillar to the First . . . the ECJ acquires jurisdiction, both to entertain such infringement proceedings and to interpret measures adopted at Union level. In respect of the matters covered by such measures, and while Union membership subsists, the national courts and parliaments are no longer the ultimate source of law.”
That is a profound change. Over time we would see current and future EU measures subject to interpretation by the European Court of Justice in this area. We believe that it would not be long before important parts
of our criminal law were potentially superseded by a body of European law. Notwithstanding our opt-in, those familiar with the proposed measure in minimum standards in criminal proceedings will also be familiar with how initially attractive proposals can, with amendment in the negotiating process in the EU, become distinctly less attractive. They would be joined by extensive new legislation dealing with the fundamentals of our criminal justice system.
Mr. Humfrey Malins (Woking) (Con): I am following carefully my hon. Friend’s remarks about changes in our criminal law system. Does he share my concern and the concern of many of our hon. Friends that the jury system, which has been so important to this country for so very long, will possibly be attacked and may eventually disappear, unless we are very careful?
Mr. Francois: I have heard that argument made in some quarters and I thank my hon. Friend for raising it. On this issue, the collapse of the third pillar into the first pillar is a matter of profound significance. I hope that if he is lucky enough to catch the Chairman’s eye, my hon. Friend may develop that argument further, not least because we would like to hear the Minister’s reply.
The areas within criminal procedure to which I was referring include victims’ rights and the mutual admissibility of evidence. The Government put forward objections to the scope of those powers when they were first included in the EU constitution, but then dropped their objections with no explanation.
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Then there are the new EU legislative powers to make laws on the minimum definition of crimes and their penalties in eight areas: terrorism; trafficking in human beings and sexual exploitation of women and children; illicit drug trafficking; money laundering; corruption; counterfeiting of means of payment; computer crime; and organised crime. Again, the Government made reasoned objections to the list, but those were dropped without explanation.
Under the treaty, all those new areas of legislation would come under the jurisdiction of the European Court of Justice. That would bring to an end the intergovernmental nature, which we strongly support, of EU co-operation on the area. It would represent a major transfer of power to the EU and severely diminish Britain’s control over its criminal justice system. That is specifically why we tabled the amendment, and I am delighted that it was selected to lead the group.
Mr. Peter Bone (Wellingborough) (Con): My hon. Friend referred to human trafficking. Is he aware that the Council of Europe and its 47 members govern the policy on human trafficking? I have just come from an all-party group meeting at which the chief executive of the immigration service said that he saw no advantage in the Lisbon treaty in respect of improving the human trafficking situation.
Mr. Francois:
My hon. Friend has raised an important point. My understanding is that the convention against human trafficking is, as he says, a Council of Europe document, rather than an EU document per se. I also understand that the Government have not ratified that
convention. It seems odd that earlier, during the debate on the motion, the Home Secretary was praying that agreement in aid; on further examination, it turns out that the Government have not ratified it. That seems a curious way to make an argument and I shall be interested in what the Minister says about it when he responds to this debate.
I said that I would attempt to be brief, so I turn to some of the other amendments. Amendment No. 207 would remove the new committee on internal security, whose full scope is yet to be determined and which the non-governmental organisation Statewatch has described as an EU interior ministry. Perhaps the Minister will have a different view of the committee’s role, but it would be helpful to hear from the Government what they believe the Committee is designed to do; its role is certainly not made clear in the text of the treaty. If the House is to assent to it tonight, we will want to know what we will be signing up to. Will the Minister explain exactly what the committee is designed to do? From the treaty text, that is not clear.
Amendment No. 208 would remove a provision that could leave Britain with worryingly little control over very sensitive information. It provides for administrative co-operation to be by qualified majority voting, but protects our rights with regard to sensitive data. Amendment No. 8 would remove the unnecessary and extensive new EU powers over some of the basics of our criminal justice system, such as criminal procedure, to which I referred earlier. I remind the House that the Government objected to the clause in its current form as unacceptable because, in the words of their counter-argument,
“the ‘definition of the rights of individuals in criminal procedure’ would cover almost any aspect of criminal procedure during an investigation, prosecution and conviction. It is essential that this article is restricted in scope and is made subject to unanimity.”
That view was absolutely right; our amendment would give effect to Government policy as it stood only a few years ago, before the Government caved in on that important matter.
Amendment No. 9 deals with the extensive increase in the EU’s ability to make laws on those other areas of criminal justice that were similarly unsuccessfully opposed by the Government during the negotiations. Amendment No. 212 would remove the extensive new powers given to Eurojust, in particular the right to initiate investigations—powers that the Government again strenuously opposed. Amendment No. 10 would remove the basis for a European public prosecutor—a provision that, again, the Government opposed absolutely. The Government amendment at the convention explained that:
“We are firmly opposed to establishing a European Public Prosecutor. Unanimity does not mean that this article can be accepted.”
We agree: the article is unacceptable. Amendment No. 213 would remove the considerable extension of EU control over policing, including the right to legislate on common investigative techniques in relation to serious organised crime. Amendment No. 11 would remove the extension to Europol’s powers; those extensions were opposed by the Government during the negotiations on the EU constitution, whose text is reproduced here.
Finally, amendment No. 216 would remove the extraordinary article in the protocols that lays this country open to what in effect is a fine if it decides that
any provision to which we have signed up has become unacceptable when it has changed from an intergovernmental to a community measure.
The European Scrutiny Committee, whose Chairman made a thoughtful speech that will bear reading again by all Members of this House, has said that
“we do not understand why the UK did not interpret the red line on protection of the UK’s position in a firmer form by insisting on a provision which would have preserved the effect of existing EU measures in relation to the UK...This would have ensured that the UK would keep what it now holds and would more effectively have protected the UK’s interests. It would have been open to the UK to keep its existing EU measures in their present form indefinitely as an alternative to opting in to a measure which would be subject to the enforcement powers of the Commission and the jurisdiction of the ECJ.”
We Conservatives share the European Scrutiny Committee’s lack of comprehension on that matter—and it is a Labour-led Committee with a Labour Chairman. With the Committee, we note that Denmark’s protocol is far superior to ours; that point was made by the Committee’s Chairman. The protocol that applies to the United Kingdom is not as strong and does not give us the protection that we need. The Home Secretary talked about a negotiating triumph; why did we not negotiate or sign up to the Danish protocol? Her argument that we had enjoyed a triumph would still not carry, but at least there would be more meat behind it. In fact, the Government opposed 40 measures in this area at the convention, but they managed to get only two changed. We argued on 40, we changed two and we lost 38; I defy any Member of any party in this House to justify that as a negotiating triumph. What would we have called a loss?
All those areas, vital to our sovereignty and essential to democratic accountability, need to be debated this evening as best we can in the time that we have. The Government largely objected to them when they were first proposed; they were unnecessary and objectionable then and they are so now. No fact on the ground has changed. Our amendments would give effect to long-standing cross-party British policy upheld by the Government at the treaties of Amsterdam and Nice and for which they themselves argued in the European constitution. In a sense, we are trying with our amendments to put right the Government’s mistakes. I commend them to the House.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab): I want to make a few brief comments on the office of the European public prosecutor, to which amendment No. 10 relates. It is what singularly troubles me about the entire provisions.
It may be helpful to remind ourselves of the history of the institution’s creation; it is one of the most contentious. In the very first draft of the original constitution, the office was not mentioned at all. It was then inserted with a clause saying that it could be introduced by unanimity in 10 years’ time. A certain group of people, driven very much by political motives, needed to have it down as a marker. The political debate on the office was about whether it should have competence over serious crime that had a cross-border element on the one hand, or over serious or cross-border crime on the other.
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