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Chris Huhne: Will the hon. Lady give way?
Mrs. Dunwoody: No, I will not. If we seriously think that the proposals that we are considering will improve our system of justice, we are misleading ourselves but, more seriously, we are most certainly misleading the British people.
If the Government do not accept the amendments, we need to know why. Why did the Government not maintain their objections to the treaty? Why did they not vote against some of the proposals? Why did they not promote very clearly the benefits of a common law system, and make it clear that it cannot be married with the Napoleonic code without enormous damage being done to the fundamental rights of the British people?
If the Government cannot answer those questions, we should not let the legislation proceed.
Mr. Cash: Amendments Nos. 132, 133, 136 and 137 in this group were tabled in my name. They are supported by 20 fellow Back Benchers and many others in the Conservative party. Moreover, we have now established a rapport with our Front-Bench colleagues, which means we are working very cohesively. There might be some differences here and there, but we are basically all together and our clear mission is to explain—in very difficult circumstances and according to an impossible timetable—what the introduction into UK law of this extremely opaque treaty will mean.
The treaty has been deliberately devised to be as hard to understand as the Eurocrats and the Government can make it. We went into that yesterday, but it is an affront in terms of time and of management. It is very nearly impossible in the time available to go into what is a substantial series of arguments. If I had more time, I would want to go into those arguments further to illustrate to the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), who made such a sound point, and other hon. Members, the impact that the treaty’s provisions will have on the rights of the people of this country, individually and collectively.
I referred to the distinction between the operation of our legal system and those of other European countries. There are 27 member states and they each have their own distinctive legal system. It would be completely impossible on such an occasion to make a comparative legal analysis of the differences, but they do exist, and they are very important to the people of those countries and to the European Union as a whole. For example, as I said in the previous debate, judges in the French system are appointed politically. It may seem odd that we should mention that. They would be surprised if anyone suggested that they should not be appointed politically because their system has been conducted in that way for generations.
Accompanying that process is a state prosecution service. People go straight into that service; they do not undertake the prosecution of criminal offences as members of the Bar, as do my hon. Friend the Member for Beaconsfield (Mr. Grieve) and other Members who are learned barristers. In France, there is a completely different system. I had experience of the code civil recently and it is difficult to work out which procedures prevail in it. They are written down in a constitutional manner and were brought forward, as some have said before, under the Napoleonic code.
It is simply not possible to marry such a system with ours to get the sort of consensus to which the hon. Member for Eastleigh (Chris Huhne) referred. That is just rubbish. Without co-ordinating the laws into a uniform system, it would be impossible to apply similar criteria to each of the laws in the respective member states, or to say that the European prosecutor will be able to make a judgment on behalf of Europe as a whole as to what the tests should be of the prosecutions he initiates.
Each of the 27 member states has its own state prosecution service, or a separate such service as we have in this country. I could enlarge on that, but in a nutshell I am describing an exercise in comparative law. Some books and authorities have attempted to explain all that, but it does not get us anywhere as a legislature. That is the problem. An academic exercise, which in a way is what this debate amounts to, simply will not do. We are dealing with the rights of the people of this country.
It is difficult in the time available to do more than indicate the things that caused me concern and led me to table the amendments that were selected: amendments Nos. 132, 133, 136 and 137. I shall attempt to do so, and I shall try to be as brief as possible. I shall, however, have to reduce my carefully argued analysis into a truncated form. I am certain that I will not do the subject justice, but, given that justice has not been done to us in arranging the business, I hope that hon. Members will be indulgent enough to accept that it is simply not possible to do the job as well as one would wish.
The amendments deal with fighting cross-border crime, co-decision in the EU, qualified majority voting and the jurisdiction of the European Court of Justice over police and judicial co-operation. Article 61 of the Lisbon treaty states:
“The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.”
That introduces the question, which we shall consider later—I trust that we will have an opportunity to consider it properly and at some length—of “respect for fundamental rights”. The concept is casually thrown in to article 61, which goes on to consider endeavouring
“to ensure a high level of security through measures to prevent and combat crime,”—
I tackled some of those issues by referring to the differences between legal systems—
“racism and xenophobia”.
A definition of “xenophobia” is not to be found in the treaty. Nobody knows what it is, except through some sort of cultural assessment. There is no legal definition. We encountered that problem in the European Scrutiny Committee when we considered the European arrest warrant. I could go into much more detail, and those who are interested can read the report on the matter.
Then there is the operation of the European Court of Justice. As I have said, EU institutions will not take into account the special nature of British common law.
Mr. Jenkin: The term “xenophobia” has been applied by supporters of the treaty to its opponents. Would it be legally possible for someone who opposes aspects of the EU on principle to be guilty of a crime under the treaty?
Mr. Cash: If the fools who make such statements have listened to the arguments that those who have considered the treaty presented, they stand condemned by the stupidity of their words.
Mr. Heathcoat-Amory: May I draw my hon. Friend’s attention to article 69B, which reinforces his point? It would give the EU the power to define criminal offences and sanctions—in other words, punishments—in new spheres, including organised crime. At the time, the Government rightly opposed that through an unsuccessful amendment because British law does not recognise a category of “organised crime”. It is not defined in our jurisprudence and we are therefore incorporating an alien definition into our judicial system through the treaty.
Mr. Cash: Absolutely. It will not surprise my right hon. Friend to learn that I have a lot of material on that. Again, I will not be able to go into the matter in detail, but article 69B states:
“The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure”—
we shall deal with that highly objectionable new procedure later—
“establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension.”.
We all want to be able to deal with the problems posed by international gangs and international crime but, as I said in an intervention on the right hon. Member for Leicester, East (Keith Vaz), the treaty provision is motherhood and apple pie. We all want co-operation to deal with international criminal gangs, but will they be operating just in the European Union? No. There are international criminal gangs that operate all over the world. It is precisely because what is wanted is a uniform legal system, at the expense of our common law system and our judicial processes, which are free from political interference, dual criminality and so on, along with a whole range of criteria, that we are insistent that there should not be the intention that lies behind the treaty. That is why we propose in my amendments to leave out the relevant words. That intention is to consolidate all the different legal systems and the legal criteria that are applicable to 27 member states, but the attempt will simply fail.
8.45 pm
Mr. James Clappison (Hertsmere) (Con): While my hon. Friend is on article 69B and the interesting phrase “offences with a cross-border dimension”, does he share my curiosity to know whether the Government interpret it as referring to a particular offence with a cross-border dimension or to all offences in the list in article 69B? Some of those offences may have a cross-border dimension, but the provision could include all such offences, whether there was a cross-border dimension to a particular offence or not. That could cover a huge range of criminal offences and bring European authority, through the Commission’s right of enforcement and, most importantly, the European Court of Justice, into the definition of offences, criminal procedures and the sanctions to be applied.
Mr. Cash:
Absolutely. My hon. Friend is also a member of the European Scrutiny Committee, and we have looked into all such questions. The reason we
found the proposals to be objectionable is basically that, as lawyers or politicians in this country, we apply definitions to words because we believe that there should be some exactness about whether someone has committed an offence or not. However, that is not how these other people operate—I say “these other people”, because I am afraid that they do not use language in their statutes in the way that we do. I do not see why we in this Parliament should be subjected to laws that are brought in by people who are inexact in their legislation and inexact in the criminal offences that are created.
It is just not good enough for the hon. Member for Eastleigh to burble on about European culture and the European dimension, as if there were not serious implications for his constituents. I bet my bottom dollar that they will not be happy at the idea of being subjected to the kind of judicial processes that are in mind under the treaty, and I bet that he is not explaining the matter to them, either, although that is another story. The eurocracy that exists, and of which he is a pre-eminent member, albeit a Member of this House, too—
Chris Huhne: Will the hon. Gentleman give way?
Mr. Cash: No, I will not give way. I am simply making a generalised point, which is that the significance of what is contained in the treaty is not known to the man or woman in the street in this country in the way they deserve to know it. That is what this Committee stage is about.
I should like to move on, although I am mindful of the time and will have to get through as quickly as I can. We have already dealt with the fact that there will be risks to British citizens. In response to the point that the hon. Member for Eastleigh made, I have recent experience of British citizens who were subjected to courts in Germany and France. Leaving aside the problems of translation, I could give him a dissertation, which I shall not give him now, on the sheer hell that they experienced, with serious consequences for their personal rights. They could not understand the proceedings and were not subjected to any procedure that we would recognise, and the whole process was a complete travesty.
Chris Huhne: On that point, one of the provisions in the justice and home affairs part of the treaty establishes minimum standards for defendants. I am sure that Conservative Members will remember the case of the British plane spotters who were accused of spying in Greece in 2001. That is an important example. As I said to the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), the rights of our citizens when they go to other member states are not insignificant, because 750,000 of them now live in other member states, and millions of us go abroad every year. Does the hon. Gentleman agree that it is important to have minimum standards, given the examples in Germany and France that he has just outlined?
Mr. Cash:
Mutual recognition will take pride of place in the new Lisbon treaty; I could give the hon. Gentleman a dissertation on that as well. The plain fact is that mutual recognition—the principal point that lies at the heart of what the hon. Gentleman was fumbling
towards—is part of the problem, because it cannot take account of the distinctions that exist between the different legal systems.
Philip Davies: Does my hon. Friend agree that the hon. Member for Eastleigh (Chris Huhne) is trying to pretend that the treaty is about extending British law into the rest of the European Union, when in fact it will extend European Union law into British law?
Mr. Cash: Precisely. As I said in a recent debate, what we want is British law for British judges and British judges for British law. That pretty well sums up in a sentence what I think we should be doing with respect to the treaty. And we should have a British Parliament for the British people. That is the point.
Mr. Shepherd: The concept of mutual recognition has bothered the House before, and for very good reasons. It means that we must regard other legal systems as having the same standing as our own. We have only to look at the judicial processes in other countries, where one may be held in prison for many months while an investigation is carried out, to see systems that I would not naturally mutually recognise.
Mr. Cash: Absolutely. My very good friend summarises the position well. Indeed, that is what is bringing Conservative Members together. With the great and honourable exception of the hon. Member for Crewe and Nantwich, there are virtually no Labour Members present except the Minister. That is not a good sign when we are dealing with matters of this importance, and I think that the Minister ought to be looking thoroughly uncomfortable. In fact, he is, now.
I shall move on to amendment No. 133. Under the general heading of “Justice”, the treaty gives the European Council the power to define objectives for United Kingdom legislation on freedom, security and justice. Article 61A states:
“The European Council shall define the strategic guidelines for legislative and Operational planning within the area of freedom, security and justice.”
That is the European Council that the hon. Member for Eastleigh was prattling on about just now—
Chris Huhne: When I wasn’t fumbling.
Mr. Cash: The hon. Gentleman must take his medicine; he certainly deserves it.
I am not going to exempt the Minister from this, either. This is what he has agreed to:
“The European Council shall define the strategic guidelines for legislative and Operational planning within the area of freedom, security and justice.”
It cannot be right for us to be locking ourselves into this kind of requirement. In law, “shall” means “must”, and that relates to the law as applied by the European Court. There is no doubt whatever that we should reject this. The 1999 temporary European Council provided a programme setting out policy guidelines and objectives with a timetable for their achievement. Under the Lisbon treaty, the European Council is
obliged to define guidelines for legislative operational action. That is a step up into the arena that we should reject.
Article 61B is another provision whereby “National Parliaments” are to be placed under a legal obligation to make sure that European Union police and justice comply with national authority. It provides yet another example of an obligation being imposed on national Parliaments. There is no need to go further into this right now, because we will deal with it later, but this obligation, which the European Scrutiny Committee has censured in its report by requiring that there should be no ambiguity about it, offends article 9 of the Bill of Rights. As I say, I am not going into that now, because we will hopefully have a proper debate later.
Chris Huhne: I would like to cite the article to which the hon. Gentleman has referred. Article 61B states:
“National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionaility.”
Is it not key to note here that the hon. Gentleman is looking a gift horse in the mouth? Surely this part of the treaty suggests that subsidiarity is a rather important principle.
Mr. Cash: I am delighted that the hon. Member for Eastleigh should walk into that one. The fact is that there is not one example that he or anyone else ever has or can give of subsidiarity being applied in practice since I described it as a con trick at the beginning of the Maastricht treaty debates all those 15 years ago. The fact remains that there has been no subsidiarity and there will be no subsidiarity.
Ms Gisela Stuart: I am sorry to disagree with the hon. Gentleman, but there is an example. One of the previous UK presidencies saw the animal zoo directive, which fell on the basis of breaching subsidiarity.
Mr. Cash: I am glad to hear of that one example. I am indebted to the hon. Lady for that revelation. At last I have heard one person give one example of one instance of subsidiarity— [Interruption.] Yes, a crucial one. In fact, the hon. Member for Eastleigh does not even do justice to his own argument, because the article refers to compliance with the principle of subsidiarity
“in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity”
and then it specifies “and proportionality”, which he did not mention.
Chris Huhne: That is what I said.
Mr. Cash: No, the hon. Gentleman did not say it.
Chris Huhne: The hon. Gentleman was not listening.
Mr. Cash: I most certainly was listening. I always listen to everything the hon. Member for Eastleigh says because it provides me with such a great opportunity to demolish his arguments.
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