Mr.
Garnier: Since we are elected to hold the Government to
account, it is probably just as well that we do so from time to time. I
agree that it is not always agreeable and that it is not always very
fruitful. However, I want to press the Minister a little further about
her answer to the hon. Member for Somerton and Frome on double
jeopardy. What does she say in response to the suggestion that we have,
to some extent, abandoned the protection of double jeopardy? As she
will know, only last week a
man was convicted of a serious murder of which he had previously been
acquitted—same facts, new evidence. Under the older regime, he
would have been acquitted for good. He has just been sent to prison for
life, with a recommendation that he serves at least 28 years, I think.
Does that have any bearing on the double jeopardy questions that the
Minister has been expounding
on?
Claire
Ward: The hon. and learned Gentleman has raised an
interesting point. The rules against double jeopardy are well
established, and it is only in exceptionally rare cases that somebody
can be tried twice for the same crime. We have therefore not abandoned
the rules on double jeopardy. I understand that the case to which he
has referred, which was in the media last week, was one of those rare
exceptions. There is no impact on the matters at hand, as dealt with by
the framework
decision. Motion
made, and Question
proposed, That
the Committee takes note of European Union Document No. 8338/09, Draft
Council framework decision on prevention and settlement of conflicts of
jurisdiction in criminal proceedings—general approach; and
endorses the Government’s support of the
proposal.—(Claire
Ward.) 5.41
pm
Mr.
Garnier: I do not wish to debate the motion, as I do not
think that that would be useful. Although this is the third, fourth or
fifth occasion on which I have appeared in a Committee of this nature,
I am afraid that on every occasion I ask the question that I have just
asked and on every occasion the Minister either confesses that it makes
absolutely no difference whether the motion is passed, or an answer
such as the one that we have just heard comes up. This is a ridiculous
process that does not enhance the public’s appreciation of what
goes on in the European Union, nor does it greatly help them appreciate
what goes on here. This is no slight upon the Minister, but neither we
nor the public are in a better state as far as our understanding of the
issues before us is concerned than we were when we started at 4.30 pm.
This procedure is utterly unhelpful. I have made suggestions through
the Chairman of every European Committee B that I have sat on, but
nothing happens, and I do not suppose that anything
will. I
am sure that the Minister could have spent a more fruitful hour and a
quarter somewhere else, and I dare say other members of the Committee
feel the same, but here we are. I doubt whether I can go back to my
constituents in Market Harborough and say, “What a good
afternoon’s work I have done.” The House needs to get a
grip of this utterly time-wasting, utterly fruitless and utterly
meaningless procedure and work out how we can better scrutinise
European legislation and the instruments—there are many of
them—that emanate from it. I wish the Minister well if she has
to appear in front of one of these Committees again, but I cannot envy
the joy of
it. 5.43
pm
Kelvin
Hopkins: I take issue with what the hon. and learned
Gentleman has said. Scrutiny may not be as good as it should be, but we
make a considerable effort. I have spent half my lifetime involved in
European scrutiny. I was a permanent member of one of these Committees
for eight or nine years until their membership
became non-permanent, and I have been a member of the European Scrutiny
Committee for the past two or three
years.
The
Chairman: Order. I have given some leeway on debating our
procedures rather than the motion. I ask the hon. Gentleman to return
to the
motion.
Mr.
Garnier: I want to assure the hon. Gentleman that the
Committee that he sits on under the chairmanship
of—
Kelvin
Hopkins: My hon. Friend the Member for Linlithgow and East
Falkirk (Michael
Connarty).
Mr.
Garnier: All of that. That Committee does a superb job. It
is the process in this Committee that concerns
me.
Kelvin
Hopkins: If I may just briefly respond, I have argued
strongly with our Government and Whips that these Committees should
have a permanent membership and take these matters more seriously. That
is what has gone wrong. The membership is not permanent. People treat
these Committees like Statutory Instrument Committees and do not take
the issues very seriously. I hope that we will manage to persuade our
leaders, at least, that that is a more appropriate way
forward. 5.45
pm
Mr.
Heath: I thank the hon. Member for Luton, North for his
contributions to the proceedings and for initiating the debate,
fruitless though it has turned out to be. Nevertheless, it was useful
that he inspired
it.
Kelvin
Hopkins: It would not be fruitless if there were
sufficient Opposition Members to defeat the Government in Committee
today, because the matter would go to the House and the House would
then have the opportunity to debate it and vote on
it.
Mr.
Heath: Were there sufficient Opposition Members to defeat
the Government, it would be an indictment of the Comptroller of Her
Majesty’s Household, who would have failed utterly in his prime
duty of ensuring that there are enough Government Members here to
establish a majority. He would not allow that to happen.
We are talking
in purely hypothetical terms. The hon. Member for Luton, North was
worried about his pronunciation of ne bis in idem, which I am sure is
pronounced utterly differently by lawyers. In my experience, lawyers
mangle every Latin phrase that they use and certainly do not use either
classical or even mediaeval Latin pronunciation, if they have an
alternative at their disposal. I do not think that he need worry too
much about
that. Let
me return to the precise terms of the matter before us. I agree that
whether we note this or not is largely immaterial but, rather oddly, so
is the matter. I am not convinced that this will make a huge difference
in any way. It has negligible effect, because this sort of co-operation
already happens as a matter of course. It has happened within the
United Kingdom for a very long time. The prosecuting authorities of
England and Wales, Scotland and Northern Ireland have had
no
difficulty in co-operating on what is the best theatre for a matter to
be heard in terms of court proceedings. Similarly, we normally enjoy
close co-operation with other jurisdictions in establishing appropriate
arrangements for hearing
cases. Kelvin
Hopkins: I understand entirely that the jurisdictions in
the British isles co-operate, because historically we have been closely
linked—we know each other and we speak the same language. I
suggest that co-operation might not be so easy between jurisdictions in
Britain and those in eastern European countries that have only recently
become
democratic.
Mr.
Heath: There is the potential for difficulty but I
understand that there have been very few difficulties in establishing
where cases should be heard. That is even including the added
disadvantage, or advantage as many of us would see it, of the common
law in England as against the Napoleonic codes that are the basis for
most of the jurisdictions in continental Europe. I do not think that
this process will be invoked much. Where it is, it will simply amplify
what is already best practice, as the Minister has said. I am more
worried about how any dispute will ever be resolved. I am utterly
unconvinced by the proposal to pass it on to Eurojust in a nebulous way
with no set procedure for Eurojust to offer the level of adjudication
that is required to provide a
solution. I
asked the Minister whether Eurojust would be sitting in plenary session
to determine this or whether it would simply be a second set of
bilateral meetings between the relevant members of Eurojust
representing the two or more jurisdictions involved in order to come to
a conclusion, but no answer was forthcoming. That makes a difference.
Perhaps there should be some form of tribunal system. I accept that it
is not a binding arbitration, but nevertheless, somebody at some stage
should give some thought to what happens if two member states cannot
agree and a matter goes to Eurojust. How will we get any sort of result
at all from Eurojust? It does not seem to me that the matter has yet
been thought
through. That
is also quite a departure from the original purpose of Eurojust. Some
people argue that Eurojust should not have been put in place, but I am
not one of them. I think that Eurojust has a role to play, provided
that it does not try to usurp the jurisdictions and legal systems of
member states. Co-operation on serious and organised crime and attempts
to provide some degree of compatibility in different legal systems, or
at least an understanding between them, are perfectly proper roles, but
no one has ever suggested that Eurojust is a method of arbitration
between different jurisdictions, which seems to be what is now
proposed. That gives me cause for concern, because I do not think that
that has necessarily been thought through properly. If we are to see a
different role for Eurojust, we must be cautious not to set up a new
supranational jurisdiction. That is not set out in the proposals, but
it could be if they were developed, and we need to be aware of
that. The
further area that I would have liked to have been developed concerns
the factors that are taken into account. I think that the Minister had
a better answer than the one she gave in response to my point about the
2003
annual report and the guidelines for deciding which jurisdiction should
prosecute, because the framework decision indicates that those should
be developed and circulated and that the various prosecuting
authorities should be made aware of the issues that ought to be taken
into account. Everyone must be clear that the issues that ought to be
taken into account include the identity and location not only of the
crime, but of the defendant, so that we do not initiate a system that
encourages trials in absentia or in which key witnesses have difficulty
presenting themselves for the hearing, which would be a retrogressive
position with regard to justice. If we did that, I think that we would
be okay, but that is still one of the vague areas within the
proposals. Finally,
I wish to return to the issue of double jeopardy. We have a long
tradition of not exposing an individual to double jeopardy in our
jurisdiction. As the hon. and learned Member for Harborough has said,
perfectly correctly, that has been watered down, as new and compelling
evidence can now be adduced. That has changed the terms of double
jeopardy. However, I am still not clear on two issues. First, I am not
clear on the recourse that a defendant has in a trial in this country
to say to a judge in the first instance, “I am potentially
subject to double jeopardy in these proceedings, because similar
proceedings on similar facts are taking place in another jurisdiction
of the European Union, or
beyond.” Secondly,
I am not clear how the legal arrangements of other member states can
accommodate for the reciprocal of that in the case of proceedings
taking place in the UK, given that the UK is not a full member of the
Schengen agreement, because the clear basis for the framework decision
is that it
“seeks to prevent
an infringement of the principle of ‘ne bis in
idem’, as set out in Article 54 of the Convention
implementing the Schengen Agreement of 14 June 1985 between the
Governments of the states of the Benelux Economic Union, the Federal
Republic of Germany and the French Republic”.
The Schengen agreement
has been extended, but Britain is still not a full member, so if the
purpose is to avoid double jeopardy within the Schengen countries, the
UK is not included. Unless individual changes in law are made in the
other member states, the UK is actually a spare part in these
proceedings because it does not apply and is certainly not judicable
under the European Court of Justice and elsewhere. I think that there
are still question marks about the
issue. I
do not propose to divide the Committee this afternoon, because all we
are doing is noting the proceedings. My view is that there will be
little effect—all the proposal is doing is encouraging the sort
of co-operation that we would like to see. But I wish that we did not
have such a degree of vagueness in the proposals before us and the
European Parliament. The proposals will affect the way our judicial
systems work in the future, but there is no one to spell out the
precise
consequences. 5.55
pm
Claire
Ward: I do not wish to elaborate too much on the
procedures that were referred to in the earlier part of the discussion.
We find it useful, as a Government, to enter into debate with Members
of Parliament through either the European Scrutiny Committee or this
Committee, in whichever form it takes, to scrutinise the legislation
and the actions of Government, which is welcome.
The purpose of
the framework decision is to ensure that we will not have to rely on
Eurojust or what it may offer. We hope that prosecutors will be able to
engage in discussion with each other across member states to prevent
the trial of a defendant in two places, which we do not wish to happen.
The measure is essentially about encouraging communication between
prosecutors from an early stage to avoid a person being prosecuted in
two member states, which is something that we and many member states
currently do. That is something that we wish to see and support in
terms of a common element of those discussions and bringing forward
best practice. Eurojust should not then be a final arbiter as to where
that person should be prosecuted, a matter which must ultimately remain
within the jurisdiction and the authority of member states. But if the
framework decision is working effectively, we will not have to seek any
views from or the involvement of Eurojust.
We have to bear
in mind that prosecutors are widely experienced and have been given
guidelines by which to operate—the hon. Member for Somerton and
Frome has referred to the factors set out in the 2003 annual report.
Prosecutors also take into account a number of factors, such as where
the crime was committed and where the accused is located. With that,
prosecutors should, in the overwhelming number of cases, be able to
reach some agreement as to where that case should be tried. The
framework decision will simply facilitate and encourage discussions
between prosecutors from different member states. I trust that members
of the Committee will support the motion, which will allow us to
proceed with the formalities around signing the framework
decision. Question
put and agreed to.
5.59
pm Committee
rose.
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