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We need to understand the politics. The UK Government have been consistently and deeply opposed to the office’s creation. In the original document, the safeguard, which
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the British Government thought sufficient, was unanimity. As I understand it—I will be happy to be corrected on this—the current provisions are much worse. It is not done on the basis of unanimity; it allows the arrangement to be created by a kind of enhanced co-operation. That means that just like the PrĂ1/4m agreement, which allows for police co-operation, a small group, irrespective of the wishes of the majority, can set itself up and then turn to the others and say, “It’s a fait accompli, it’s here, it’s no longer worth arguing about.” My main reason for opposing most of the justice and home affairs provisions is not that they move out of the third pillar, but the existence of the possibility of the creation of this office, which has no other purpose than political.

Chris Huhne: Let me start with the point raised by the hon. Member for Birmingham, Edgbaston (Ms Stuart). Having looked at the efforts that the European Union has, over the years, put into trying to deal with fraud—particularly given the embarrassment of year in, year out failing to have its accounts signed off by the Court of Auditors—it seems to me that one very important role for the European public prosecutor is to be able to give some attention to those issues, which have not traditionally been attended to by national prosecutors because they have not been thought of sufficient importance. Until several of the member states see that it is crucial to provide adequate paperwork to the Commission, we will have the continued problem, now in its 13th year, of the Community’s budget not being signed off as a true and proper—

Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): I want to be clear about this. Is the hon. Gentleman suggesting that a prosecutor at European level should have the right to investigate over and above the authorities of the nation state—that as long as the issue is in some way loosely connected with European funds he or she should have the right to take precedence over the existing status of the nation state?

Chris Huhne: It is not a question of taking precedence but of doing something that is not being done. This is an elision that is very familiar to those of us who have dealt with Eurosceptic concerns over the years. We must not elide what is a capability and what then replaces something going on at the national level. The EU can have a competence, but that does not mean that it has an exclusive competence. The ability to investigate a fraud against the EU budget seems to be an important one which we know has not been followed through.

Mrs. Dunwoody: It is a very simple question. Is the hon. Gentleman saying that a European prosecutor would have the right to investigate European so-called frauds within the United Kingdom over and above the powers that are given to the United Kingdom Government? That is all I want to know. Is this role going to take precedence over the involvement of British Ministers?

Chris Huhne: I said very clearly that it is not a question of taking precedence over anything that is done by our authorities. The reality is that we are one of the member states that has pursued matters of fraud
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against the EU budget over the years, as we did, for example, in relation to some of the cross-border scams between Northern Ireland and the Republic of Ireland. It is a question whether there should be a capability to pursue fraud against the EU budget. The hon. Lady is attempting to have it both ways. It is of course possible to say, “Yes, this is outrageous—here is money that is being inadequately spent and inadequately monitored by the European Union” and then on the other hand to say, “No, we cannot have a means that will allow us to deal with it.”

Mr. Dominic Grieve (Beaconsfield) (Con): The issue that the hon. Gentleman has not addressed concerns the source of justice within a nation state. Either justice is controlled through Parliament, through the office of the Attorney-General and the national courts, or there is a supranational power with power to intervene. That is precisely what he was describing, although he could not quite bring himself to admit it. I ask him to be clear about this, because what he is really talking about is a federal model with a federal prosecutor.

Chris Huhne: Absolutely not. There is a fundamental difference, which the hon. Gentleman does not seem to have taken on board. We are talking about a prosecutor, and a prosecutor is still somebody who has to make a case in a court, and that court would be a court of the member state. Therefore, all the normal judicial process that we would guarantee here in the UK would be present.

Mr. Grieve: Prosecutions in this country are brought by the Crown. Nobody else brings prosecutions. The Crown is the font of justice and brings prosecutions against individuals who transgress the law. The hon. Gentleman is talking about a supranational authority bringing prosecutions in our court. That is a seismic change in our constitutional arrangements, and I wish he would accept that and then argue it.

8.15 pm

Chris Huhne: I think the seismic change would be if there were any change in the arrangements for trying an offence. If there is a question of prosecuting an offence, that still goes before a jury and still goes through the normal process. That is absolutely fundamental.

Several hon. Members rose

Chris Huhne: Having given way on several occasions, let me turn to amendment No. 214. Just like the hon. Member for Beaconsfield (Mr. Grieve) in the previous debate, the hon. Member for Rayleigh (Mr. Francois) completely failed to take on board exactly how these provisions would work. As they conceded, the UK can choose whether to opt in. The UK will clearly not opt in to measures that we would not want the European Court of Justice to opine on. That is a stronger position than the constitutional treaty provided for. If the UK does not want to be involved in a measure that the ECJ will have no jurisdiction over, we have a very clear option not to do that.

The second point, which the hon. Member for Rayleigh did not take on board at all, concerns what would happen if we made a mistake—as he would put it—and
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elected to enter into this process, but then it somehow went wrong during the negotiations and when we found we no longer wanted to participate, given how the negotiations had gone. In the Lisbon treaty, we have very clearly, for the first time, the emergency brake procedure whereby the matter goes to the European Council. That is fundamental. Article 9B(4) says:

Consensus means unanimity. [Hon. Members: “It doesn’t.”] It does. There is an appeal process. If a member of the European Council declares that it is not in line with the negotiations— [ Interruption. ] I am sorry; this is very clear. If a member of the European Council says that it does not agree, it is not possible to proceed by consensus and under the treaty, for the first time, it is absolutely clear that that provision will then fall. There is a fall-back. It is not necessary to decide at the beginning of the negotiation process—one can go all the way through that process and then have the emergency brake and go to the European Council, where if there is no consensus—if, for example, the British Prime Minister says, “No, I’m sorry—I cannot accept this”—the matter does not proceed.

Mr. Bone: I must be misunderstanding the English language. Surely a consensus is the view of the great majority of people present, but it can exclude one person.

Chris Huhne indicated dissent.

Mr. Bone: Why not call it a veto then?

Chris Huhne: That is simply the way that it has always been described as regards the European Council. Let us remember that the European Council makes its appearance in these treaties for the first time: it has until now been an informal body. In effect—Conservative Members should take this on board—the treaty incorporates, for the first time, de Gaulle’s empty chair policy and Luxembourg compromise in the body of European law; that is why we are happy to support it.

Mr. Richard Shepherd (Aldridge-Brownhills) (Con): That goes to the centre of much of our uncertainty and doubt. We have a language too. Consensus has one meaning, and unanimity has a distinctly different meaning. It may be that the hon. Gentleman’s years of toil in the European Union and Brussels—

Philip Davies (Shipley) (Con): He went native.

Mr. Shepherd: It may be that those years so nativised the hon. Gentleman that he cannot see the distinction in our written forms between consensus and unanimity. We are talking about something now that is terribly important and sensitive in terms of our whole legal system. This is not about smearing words, or saying them. It is not about his personal interpretation—the interpretation will not be made by him, in the end, but by others and ultimately by a Court that will often be beyond our control. That is what is germane to this argument. It is too easy to trivialise it by trying to maintain the new definition for the English dictionary that he has conceived for the purpose of this debate.

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Chris Huhne: I am grateful for that intervention, because the hon. Gentleman makes it clear that the provision is new and that it has not been in the treaties. Indeed, it was not in the constitutional treaty. It is a fundamental change between the constitutional treaty and the Lisbon treaty. His party has been attempting to say that there are no basic changes, but there are important safeguards that are key.

Mr. David Heathcoat-Amory (Wells) (Con): May I help the hon. Gentleman on the definition of the word “consensus”? At the conclusion of the Convention on the Future of Europe, which I and the hon. Member for Birmingham, Edgbaston (Ms Stuart) attended, the constitution was adopted by consensus—that was the phrase that was used—even though I and eight other members had tabled a minority report and explicitly rejected the constitution. Despite that fact, the constitution was presented to the European Council and adopted by the Council, again by consensus. I have no faith in European decision making. When it suits them, they turn opposition into consensus. That is an historical fact, not a speculation.

Chris Huhne: The right hon. Gentleman is well versed in these issues, but despite his point he does not yet have the same status as a Head of Government. Throughout the operation of the European Council, whenever it has made decisions by consensus they have involved the agreement of everybody. As the right hon. Gentleman will know, as a keen student of EU history, that began with General de Gaulle’s empty chair policy and the famous Luxembourg compromise. That compromise, on the French part, determined the ability of one of the member states to ram on the brakes when it thought that a matter was of vital national interest and to say, “No, we will not allow that to go through.” The fact that the provision has now been incorporated in the treaty goes directly back to the set of events that involved General de Gaulle and the empty chair policy. Given the history, I find it completely inconceivable—although it is totally in line with Conservative Members’ usual attempts to build up paranoid ideas of what might happen—that the circumstances would develop in such a way.

We will oppose the amendments.

Mr. Francois: The hon. Gentleman’s argument is not carrying the House with him. He might have been able to carry Liberal Back Benchers with him if a single one of them was here to debate fundamental changes to our legal system. Unfortunately, not many Liberals have turned up. In their absence, will the hon. Gentleman admit that even an opt-in emergency brake combination is weaker than a veto, because with a veto we can just say no?

Chris Huhne: The reality is that the provision is substantially stronger than what was proposed in the constitutional treaty. The hon. Gentleman has to accept that we have here a major change compared with the constitutional treaty. If he wants to play the numbers game, I am happy to count Back Benchers and the support provided for Front Benchers. I have been here throughout the day. There was a point at which there was such enthusiasm for the line that the Conservative Front Benchers were taking that there were precisely nine Conservative MPs in the Chamber.
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If the hon. Gentleman thinks that he is somehow energising his Back Benchers, all I can say is, “Dream on!”

Ms Gisela Stuart: Will the hon. Gentleman give way?

Chris Huhne: No, I will not give way again. I end by repeating that we will not support the amendments.

Mrs. Dunwoody: I enjoyed the contribution of the hon. Member for Eastleigh (Chris Huhne). This Chamber lacks spontaneity, imagination and colour, and when we reach the point where we have fairy tales we should welcome them—so long as we are not making legislation.

The slight difficulty with the amendments is that they are central to what we are debating. They are not jokes; they are not an amusement and they are not just about the interpretation of the word “consensus”. They represent a series of fundamental decisions on the future of justice in the United Kingdom. We ought to say to the Minister and to those who have followed the line that the changes are minor that it has taken us a long time to build a system of common law in this country. It is essential to our courts that the laws should be easily understood by the British people and by those who appear in the courts to defend and prosecute. People should understand the systems of appeal and the ways in which their rights can be protected if, for any reason, they are brought to court.

I believe that this evening we are talking about enormous changes, and we ought to be honest about that. We ought not to pretend to the British people that they are minor administrative measures or a minor reorganisation. What was the lovely word used by the hon. Member for Eastleigh? We ought not to pretend that the changes are an “elision”—what a wonderful word—off into some other side track. The changes are not that.

I am saddened that the Minister has not made it clear throughout the debate—he had the opportunity to do so early on—that having been defeated, the British Government chose to vote against the proposals. That seems simple. If they had put forward their objections and spelled them out sensibly and constructively, and had then been defeated by that consensus, they should have registered a vote to the effect that the reason they had taken such a line was that it was what was demanded by our Parliament and our system of justice. So far, I have not heard those arguments or any refutation.

I know that it will come as a surprise to the Minister, but I question what Opposition. Members say. I question them as much as I question my Ministers. The arguments that have been put forward from across the House are about the future of our justice system. We are debating not administrative changes or a reorganisation of the Labour party into different wards, but the future of the rights of UK citizens. I happen to think that that is quite important. I demand of my Government, in simple terms, that they explain why, if the point was so fundamental when they first objected, it is not fundamental now. Is it sufficient to say, “I have been defeated”? I suppose that it shows a want of imagination if I say that I am frequently defeated in this Chamber, but that does not stop me. I believe that we have the right to know.

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Chris Huhne: Will the hon. Lady give way?

Mrs. Dunwoody: I should be delighted, as the hon. Gentleman has been a real asset to the debate.

Chris Huhne: I am grateful to the hon. Lady. I agree that we are talking about the rights of British citizens. However, does she agree that those rights are just as important when citizens are outside the country as when they are here? After all, this House has voted in the past to go to war to defend the rights of British citizens abroad. We now have the ability, in part as a result of this treaty, to ensure that there are minimum legal standards for the three quarters of a million British citizens who live in the EU. Does she not agree that those people have rights as well?

Mrs. Dunwoody: I am convinced that the UK has the right to defend its citizens wherever they are. From the age of 16, I lived in perhaps eight or 10 different countries. I had no difficulty conforming with the laws of whichever society I was living in. If I contravened those laws, I expected to pay some penalty, but I also expected, if needs be, to be able to ask the UK Government to come to my defence. However, none of that gives me the right, in this House, to vote away the fundamental rights of the British people.

Mr. Shepherd: The hon. Lady has touched on something that all of us in the Chamber understand. The importance of our justice system is that everyone in this realm, this United Kingdom, who comes within its jurisdiction is, one way or another, able to grasp what the law is. We expect, through the aegis of this House of Commons, to be able to defend our historical and traditional rights under the common law. They go back nearly a thousand years, and they are essential to our very sense of liberty. That may not weigh so strongly with the near-leader of the Liberal Democrat, but it is profoundly important to me and my colleagues.

We understand our legal system and trial by jury, but they are not common to the whole of Europe. We are trying to understand why the Government are prepared for the possibility that the process of consensus will—or may, or could—cause the changes proposed in the treaty to come about. That is why these debates are important—as my honourable friend, the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), has said.


Mrs. Dunwoody: I am grateful to the hon. Gentleman. His commitment to the rights of UK citizens is clear in everything that he says. When we are elected to this House, we have one simple responsibility—to make the law. We try to do that as well as we can: when we make mistakes, we examine what went wrong; when we pass bad laws, we try to alter them. That is what we who are elected to this House do, and I do not accept even the concept that a supranational prosecutor can tell the UK Government that they have not prosecuted EC law sufficiently.

To me, that is simple effrontery. I sat in the European Parliament for year after year, and I never heard the Commission take the question of fraud seriously.

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