Session 2010-11
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General Committee Debates
European Committee Debates

Right to Information in Criminal Proceedings

The Committee consisted of the following Members:

Chair: Mr Andrew Turner 

Carmichael, Mr Alistair (Comptroller of Her Majesty's Household)  

Carmichael, Neil (Stroud) (Con) 

Clappison, Mr James (Hertsmere) (Con) 

Clarke, Mr Kenneth (Lord Chancellor and Secretary of State for Justice)  

Coaker, Vernon (Gedling) (Lab) 

Connarty, Michael (Linlithgow and East Falkirk) (Lab) 

Dodds, Mr Nigel (Belfast North) (DUP) 

Duddridge, James (Lord Commissioner of Her Majesty's Treasury)  

Evans, Chris (Islwyn) (Lab/Co-op) 

Goodman, Helen (Bishop Auckland) (Lab) 

Greenwood, Lilian (Nottingham South) (Lab) 

Tomlinson, Justin (North Swindon) (Con) 

Wallace, Mr Ben (Wyre and Preston North) (Con) 

Eliot Wilson, Committee Clerk

† attended the Committee

The following also attended, pursuant to Standing Order No. 119(6):

† Cash, Mr William (Stone) (Con) 

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European Committee B 

Thursday 2 December 2010  

[Mr Andrew Turner in the Chair] 

Right to Information in Criminal Proceedings 

2.30 pm 

The Chair:  Does a member of the European Scrutiny Committee wish to make a statement? 

Mr James Clappison (Hertsmere) (Con):  May I say what a great pleasure it is, Mr Turner, to serve under your chairmanship for the first time? I look forward to it. 

It may assist the Committee if I say on behalf of the European Scrutiny Committee that the proposal before the Committee is the second step of the procedural rights road map adopted by the Council of the European Union in November 2009. The road map gives the EU a mandate to bring forward legislative and non-legislative measures to safeguard procedural rights in criminal proceedings in the EU. 

The proposal aims to set common minimum standards on the right to information in criminal proceedings throughout the EU. The purpose is to improve the rights of suspects and accused persons by ensuring that they receive written information about their rights during the criminal process in the form of a letter of rights; it will also ensure that they receive information about the nature of the accusation against them as early as possible to enable them to prepare a defence. As for the need for this type of legislation, the Commission’s research allegedly shows that many suspects are not being made sufficiently aware of their rights or of the case against them when being tried in EU member states. 

The Government had to decide whether to opt in to criminal justice matters from the EU. On this occasion, they decided to do so. The Minister for Europe placed a written ministerial statement before Parliament on 25 October explaining why, and I quote from it. He stated: 

“The draft directive will provide minimum standards for individuals subject to criminal proceedings. British citizens abroad will benefit under the directive from increased confidence in procedural standards across the European Union. It will also increase security at EU level by supporting existing provisions which help combat crime and promote the rule of law.” 

That is the extent of the statement that I wish to quote, but on behalf of the European Scrutiny Committee I add that it is apparent that the EU presidency wants to secure political agreement on the directive at the European Union Council, which meets today and tomorrow. 

In a letter dated 18 November, the Minister for Europe informed the European Scrutiny Committee of this and asked it to lift its scrutiny reserve in time for the Council meeting. However, at its last meeting on 24 November, the Committee decided that the scope of the proposal and its impact was so significant that it should be debated by the House before the Minister decided whether to give it his agreement in the Council. 

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The Chair:  I call the Lord Chancellor and Secretary of State for Justice to make the opening statement. 

The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke):  This is the first time that I have served under your chairmanship, Mr Turner, and I gather that it is the first time that you have chaired this Committee. I add to what my hon. Friend the Member for Hertsmere (Mr Clappison) said in welcoming you to the Chair, and I look forward to debating this directive. 

As my hon. Friend said, it is in fact the case that the Belgian presidency hopes tomorrow to reach agreement within the Council on this measure. That will be next stage before we start negotiations with the European Parliament; that will happen before there is any question of the directive becoming law. As my hon. Friend said, we have been trying to reach agreement with the European Scrutiny Committee in order to satisfy the scrutiny requirements of the House, which I take very seriously. I am grateful that we have arranged a short debate this afternoon; we can get up to date and I can take the feelings of the House before going to my proceedings tomorrow. I say before going to my proceedings tomorrow, but I hope that there is less doubt about the Committee than there is about the train that is supposed to be taking me to Brussels later this evening. 

This is a good opportunity for us to discuss this particular provision. The Government have opted in; we take the view that this measure is extremely important and valuable, and one that the British wish to contribute to and ultimately comply with. We believe that it will have a positive impact on those who become subject to the criminal justice system of any member state of the European Union. The main benefit to us is that will give added protection to British subjects who get themselves into trouble with the criminal law in other member states. It will also build on our hopes of ensuring that standards in every member state are of a level that gives us confidence when it comes to enforcing and respecting judgments taken in other member states. The measure clearly fulfils, in every respect, the criteria that the coalition Government have set out for opting in to home affairs and justice matters in the European Union. 

As my hon. Friend said, the project is part of what has become known as a road map, which has been set up to ensure that we steadily—item by item, almost—produce a series of measures that raise the minimum standards in the criminal justice systems of other member states to the levels of the best. This measure is the second in that series, and the drafting of the directive has been heavily based on British practice. We already give a letter to people from a foreign state who are arrested in our jurisdiction, which contains a statement of their rights, and explains the nature of the offences with which they are charged and the evidence that there might be against them. The intention is to move on from there being 12 member states that provide a letter of rights and similar assistance to overseas suspects or people arrested in their jurisdictions, to all 27 doing that. 

The result is that the measure would have a limited effect within the United Kingdom. The European Scrutiny Committee has expressed concern about the scope of the proposal, and about its potential impact on criminal procedure, which it at first judged to be significant. In particular, it expressed reservations at an earlier stage

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about the provision on disclosure, and questioned whether it was desirable or even possible to have a European Union approach on disclosure, given the significant differences between common law and civil law countries. In earlier correspondence, the question was asked whether a provision on disclosure was compatible with the principle of subsidiarity. The principle of defence access to evidence is already set out in the European convention on human rights, and it therefore already applies here. That is a right upon which the present directive builds. It is an important principle of justice that a person accused of a criminal offence should have access at the right stage to the evidence held against him, and that question is being addressed here. We think that the whole process ensures that all 27 member states, some of which have a recent history that is not as founded on the rule of law or the total objectivity of justice between state and subject as ours is, are brought up to the right standards, and we believe that we in Britain will benefit from that in every way. 

On opting in, we take the view that we will support measures that most particularly protect the civil liberties of British people by preserving the integrity of our own system of justice and, for that reason, the Government took the current decision to opt in. My hon. Friend did not explain the further grave reasons for concern that had occurred to him, and I must say that in dealing with the measure over the past few weeks I have regarded it as one of the most harmless and least controversial measures coming out of Europe that I have ever encountered. We all know the difficulties that can arise when British subjects are arrested overseas, and the measure has great support from all the interested pressure and lobby groups in this country. Fair Trials International, Liberty and Justice are wholly in favour of the measure and would be astonished if they found that the British, for some reason, were withdrawing. 

The benefit of opting in has been that we have been able to clear up those drafting points that might have made the original draft rather difficult to apply in a common law country. The current draft is perfectly satisfactory to us, and I expect to find it satisfactory to the Irish, the Maltese and the Cypriots who faced similar difficulties when it started. Our opting in has enabled us to participate in discussions in a strong and positive way inside the council, and people look to us when we talk about standards of justice in criminal law. I do not think that we are a target of this particular directive; we are thought to be very helpful contributors. So I look forward to hearing whether any other hon. Members have concerns, but I hope that everyone has been reassured and that this will be one of the less controversial European debates in which I have participated over the years. 

The Chair:  We have until 3.30 pm for questions to the Lord Chancellor. 

Helen Goodman (Bishop Auckland) (Lab):  Thank you very much, Mr Turner, it is a pleasure to serve under your chairmanship this afternoon. I thought that it was ironic, when I received these papers less than 24 hours ago, that they were about the right to information in criminal proceedings, because I felt that my rights to information in parliamentary proceedings were not being respected. Littered throughout this pack of papers were

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references to the need to maintain momentum and constant apologies for the short notice given to Parliament. Because of that, and because I have not had an opportunity to speak to a lawyer about it, I have quite a lot of questions to ask the Secretary of State this afternoon. 

My first question is why the Secretary of State thinks it is right to have a European approach in this area of law. His comments do not seem to sit very well with what the Prime Minister said yesterday at Prime Minister’s questions. When we incorporated the ECHR into English law as the Human Rights Act 1998, the Labour Government took an approach intended to put us on all fours with the Europeans. Yesterday, once again, the Prime Minister said that, no, he wanted a British bill of rights. One question that I have for the Secretary of State is whether his approach to human rights is one in which we should have a separate British approach, or one in which we have a common European approach. 

My next question is whether implementation of the directive, if it were to be agreed, would require domestic legislation. If it does, when we will see that legislation? Secondly, if it does require domestic legislation, what happens if Parliament does not agree to it? I am in a state of puzzlement about what happens if we agree to a directive, but Parliament does not agree to the enforcing legislation. 

My third question is whether the directive will require any changes to practice in the United Kingdom. The Secretary of State has said, and he is absolutely right, that the directive is largely modelled on practice in England. I noticed on page 111 in annex 3 to the Commission’s impact assessment that in England and Wales there is no current right to access evidence or to a translation. Page 157 of the impact assessment issued by the Ministry of Justice—I would like the Secretary of State to clarify whether this is the final impact assessment, or simply a draft, because it has not been signed by a Minister—states that the transitional costs are estimated at somewhere between £20,000 and £50,000. I would have thought that, if we were introducing interpretation and translation services, the cost would be considerably more than that. They would not simply be transitional; they would run through every year. I am not clear whether that fits with his programme of 23% cuts in the Ministry of Justice budget, or whether he is expecting Home Office colleagues to bear the burden of this. If so, has he agreed it with the Home Secretary? Given that 11,000 of the 85,000 prisoners in British jails are foreign nationals, one would think that this might be quite an expensive addition. I am not saying that we would oppose it for that reason; I am saying that we need to find out what the resource implications are. 

Following on from that, how does the directive square with the proposals of the Secretary of State for Justice to cut legal aid? When he made the statement on legal aid in the Chamber, he was clear that it would still be provided if there was any question of a person’s liberty being at stake. However, there can be criminal proceedings involving a lesser penalty. The document suggests that in all circumstances a person should have a right to a lawyer, blah, blah, blah, and all those things. Yet, that does not fully match up with what the Secretary of State was saying about legal aid a fortnight ago. Then we come on to— 

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The Chair:  Order. I wonder if the hon. Lady would mind if we took that group and then came back to her for more. 

Mr Clarke:  I apologise for the speed at which we are proceeding, but that is the way in which the process works. On this occasion, we have a proposal coming forward that has a broad body of support and people want momentum, including a number of member states that have experience of their nationals getting arrested or involved in the criminal process elsewhere in Europe and wish to see it improved. In some respects, we should address the pace at which we subject the Government to scrutiny. I am a very strong believer in the House exercising a stronger level of scrutiny over what the Government do in the Council of Ministers. It is difficult, however, because it means that we have to have—as we fortunately have today—debates at fairly short notice, so that one can have a look at things before the meeting that they come up in. This time, that meeting is literally tomorrow. 

The problem is that when we first came into office, there was not a European Scrutiny Committee in the Commons for the first few months and we then had a long recess. Meanwhile, the business of Europe, where they did not have a general election or a change of Government, was proceeding apace. Now things are returning to normality and we are just about keeping up with events by having our debate today. I am happy to discuss with the Scrutiny Committee and anyone else how we can ensure that the House responds rapidly to the need to give a British Minister a clear steer on something that is happening. 

The hon. Lady asked why we had a European approach in this area. I tried to address that, but it is the most serious question in a way. The situation is that we are in a common market and a world where most of us travel. A high proportion of the nationals of most countries—certainly in the United Kingdom—go backwards and forwards to other member states. In civil law and parts of criminal law, it is an important commercial interest that systems all over the Union should be free from corruption, the rule of law should be absolute and should be neutral between companies and traders on one hand and the authorities on the other. 

As we all have constituents who could be arrested in one of the 27 member states at any given time, it helps if we can have confidence that the process there will be up to the basic standards of criminal justice that we are used to in this country. Similarly, if we are to give effect to the judgments of other countries’ courts, it is a good idea to ensure that the standards are sufficient for us to be able to give force to them in this country. That does not mean that we will harmonise our criminal law or our criminal law procedures. We are a common law country and most of the others are not. Nobody—I do not—sees the slightest point in harmonising our criminal law. I do not think that any of my opposite numbers in any of the other 26 member states have any interest in harmonising every detail of their criminal law. What we do, therefore, is explore ways in which, according to our different traditions and procedures, we can arrive at the standards of justice, impartiality of the judiciary and so on, that we expect to give to each other’s citizens. 

Mr Clappison  rose—  

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Mr Clarke:  I will give way to my hon. Friend. 

The Chair:  Order. I am sorry, but the hon. Member is not allowed to interrupt. 

Mr Clarke:  Ah, we are not allowed to give way. Like you, Mr Turner, I am trying to keep up with the procedure, but no doubt my hon. Friend the Member for Hertsmere will catch your eye at some stage. 

The Human Rights Act 1998 and the ECHR are not actually relevant to this discussion. The ECHR is not a European Union measure, but we accept it, as everybody else does. On the Human Rights Act, the Government intend to set up a commission to consider the case for a British Bill Of Rights, to see if we can improve the way in which the ECHR is applicable here. We fully accept the obligations in the ECHR, and we do not intend to withdraw from those in any way. No doubt, the matter will come up again, but the coalition agreement is perfectly clear on the subject. 

I do not expect that the directive will require any domestic legislation, because it is so close to our own practice. Nothing of any significance will be called for, and it will not give rise to any significant expenditure. If there were to be domestic legislation and if the House were to refuse to vote for it, we would get into arguments about whether we faced infraction proceedings before the European Court of Justice. I do not think that this measure will give rise to that, because it is very close to the practice in England and Wales. It will require a change to be made in Scotland, but I have kept in touch with the Scottish Government throughout the negotiations and not only will they not find it difficult to make the change, but they are perfectly prepared to make it and to accept the European proposal. 

We are not expecting to have more foreign prisoners or, if we do, that will not be as a result of the directive. It is just that in these international times, every western European member state finds that more foreigners tend to be arrested and to be brought before their courts. All that will happen is that those foreigners will be given the rights that I have described and which are set out in the directive, in line with our present practice, to make sure that they are judged fairly in our courts. The problem of foreign prisoners is serious, but the numbers will not be affected one way or another, as far as I can anticipate, by what is proposed. 

The directive does not have any bearing on legal aid, on which we are out to consultation and have published a paper setting out the basis on which we think that taxpayers’ money should be available to those engaged in our courts in future. That matter is not borne upon by the European Union directive, which does not confer any new rights to legal aid or take those rights away from anybody. It is not relevant to our discussions today. 

Michael Connarty (Linlithgow and East Falkirk) (Lab):  It is good to serve under your chairmanship today, Mr Turner. I would like to clear up a couple of points with the Minister, whom in the past I would have called the Justice Minister. I have forgotten what his elevated title is. [Hon. Members: “Lord Chancellor”]. I suggest the Lord Chancellor should be presented with a robe of some kind to go with his wonderful title. 

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The original draft of the directive came through in November 2009, under the previous Government, but it was in the hands of the present Government when it first came before the new Parliament in July. The document bundle, at paragraph 15.13, states that 

“the Government agrees that the objectives of this measure cannot be sufficiently achieved by Member States acting on their own and so is better achieved at Union level.” 

Will the Minister say whether that is the confirmed view of the Government? Does that reflect his view of the rest of the Stockholm programme, which is a much larger agenda for the roll-out of the extension of basic rights in criminal proceedings across several areas? That is my first question. 

As is stated in the explanatory memorandum, the European Scrutiny Committee had serious reservations about the provisions on disclosure, and we asked if the Government would argue for the disclosure procedures to be dropped. In its draft report on the directive, which we have sent for debate today, the Committee said: 

“The one remaining question is the extent to which a Member State can withhold access to evidence.” 

There were some concerns that disclosure rules would be forced on the UK that would endanger those who were submitting the evidence. The Secretary of State has said that he recognises that in the UK one 

“can apply to the judge to withhold evidence where disclosing that evidence would pose a risk of real harm to an important public interest.” 

The Secretary of State was going to argue firmly for that to be in the amendments that are being debated today and tomorrow. He said that if such an amendment were not secured, he 

“would not be content to agree to the General Approach at the JHA Council” 

that is taking place at the moment. The decision was taken by the Committee that, rather than allowing the Secretary of State to agree, should he achieve the amendment that he was seeking, it should be sent here for debate before we lifted the scrutiny reserve. Is the Government’s position still that if they do not get the planned-for exemptions, which allow for the withholding of disclosure in the UK on the basis that we withhold things at the moment, they will vote against the adoption of the directive at the Justice and Home Affairs Council? That is my second question. 

Mr Clarke:  On the question of the first Stockholm programme as a whole, and justice matters generally, the Government are proceeding on a case-by-case basis. We look at each individual proposal and decide whether it contains a British interest or a British benefit, and whether we therefore wish to exercise our opt-in. We also bear in mind whether exercising the opt-in will give us a greater role in developing the final shape of the proposal than we would otherwise have. There are quite a number of things that I do not think the British will opt into. We are free to decide that we cannot see any advantage to our subjects or our system of law in opting in, and that we are therefore going to opt out. 

As for disclosure, it was a problem under the previous Government, and indeed the proposal was rejected when it first came up while the previous Government were in office. We have addressed the question of disclosure, and since we opted in we have made considerable progress

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in negotiations of all kinds. We believe that the language of the directive, the text of which is before the Committee, accommodates the very limited areas in which we withhold disclosure of prosecution evidence. They are normally only cases under a public interest immunity certificate. In cases where the national interest and national security require it, the evidence cannot be relied on in the court at all, by the prosecution or by the defence. 

It is true that the original drafting left considerable doubt about that, but it has now been resolved, as have one or two other drafting points that troubled us at various stages. One of the advantages of being able to opt in was that we did so after I had obtained pretty strong personal assurances from both the Commissioner and several of the other Ministers that they were perfectly happy to accommodate what they regarded as our entirely acceptable methods of dealing with these things. We, and those who give us legal advice, regard the text that we now have as satisfactory and not disturbing the well-established relations here. So most of our problems have been addressed, and as it stands now I do not expect to have difficulty when I go to Brussels tomorrow. 

I have forgotten now what the last point was; I did not make a note of it when I stood up, because I had just been listening to it. 

Michael Connarty:  The specific point was that although the directive is in draft, if it is not agreed by others will the Government refuse to opt in? That seemed to be the text that the Secretary of State gave us. 

Mr Clarke:  No, we have already opted in. We still have votes to cast, but we are likely to support it. All we have today is a take-note motion, so whatever happens a resolution will be put before the House next week, but I will put in a scrutiny reserve today. 

Let me make what is happening tomorrow clear. The directive will not be finished tomorrow. It is the last stage of the Council’s dealing with it. Tomorrow, the Belgian presidency wants us to agree to send the directive forward to the European Parliament, and then the European Parliament will consider it and, if necessary, there will be a negotiation with that Parliament about the directive’s final form, and then it will come back for adoption. We have quite a way to go and there is still plenty of time for exchanges with the European Scrutiny Committee or Members about exactly where we are going. 

Mr Clappison:  The Lord Chancellor has referred to the need to approximate practice across the European Union, but can he confirm that the directive will apply to every criminal case in every court in every part of the United Kingdom? Will the legal effects of the directive be within the jurisdiction of the European Court of Justice? 

Mr Clarke:  The directive will apply to every criminal case in every member state in the European Union, which means that it will apply in every case in the United Kingdom. In fact, it will not require practice in England or Wales to change, because it does not require us to do anything that we do not do now. It will require change in Scotland, but there is pressure for the change there and it is not a change that anybody is resisting in

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Scotland. The Scottish Government have not expressed any reservations about the changes that they would have to make, which involve giving foreign nationals arrested in Scotland a letter of rights and telling them what their basic rights are under Scottish law, what they can and cannot do, and how they will be treated as they go through the legal process. 

The measure will be subject to the jurisdiction of the European Court, but that is true of each and every European measure that comes before us. Everything we have ever adopted is subject to the European Court in one-way or another, because people can say that something happening in this country does not comply with our obligations or that our legislation does not comply with a directive, and seek infraction proceedings. That does not represent any extension of the competence or scope of the European Union. As with absolutely every measure ever adopted and signed up to by this country, it simply means that if anyone wants to litigate, how the measure operates is subject to the jurisdiction of the European Court. The only way we can stop that applying is never to agree to any measures of any kind that ever come from Europe again, and not propose more measures. 

We have the maximum flexibility on home affairs and justice because, as a result of previous negotiations, after Lisbon we have a complete opt-in, along with the Irish Republic. We can choose to opt in or opt out of each and every measure that comes along. The fact we have opted in to this one does not commit us in any way to opting in to any future ones. We opted in to this because, on the whole, we think it is a good thing, and we do not think that the European Court will ever find any reason for holding us in breach of the directive at the behest of any future litigant. 

Helen Goodman:  Just to clarify, my question was not about the number of foreign prisoners, it was about the introduction of interpretation and translation services. There appears to be no resource included in the impact assessment. However, the service appears to be an extension of what is available to people at the moment, so my questions are, what will it cost and who will pay? 

Like my hon. Friend the Member for Linlithgow and East Falkirk, I want to ask a couple of questions about disclosure. We have had a lot of discussion on that issue in the UK Parliament in the past five years. It has arisen in relation to control orders and pre-charge detention. On both of those, the exemption that the Government have negotiated relates to national security and the national interest. I would like the Secretary of State to confirm that. 

There is also a question about anonymous witnesses. I am sure that the Secretary of State can remember the emergency legislation that we passed in 2008, when there was a court case that would have led to other cases collapsing had we not passed legislation to allow the continuation of the use of anonymous witnesses, which, I understand, is particularly pertinent in gang-related crime. Is the Secretary of State satisfied that those provisions from 2008 would be secured under the directive? 

One of the things that the Secretary of State has negotiated is that training for the judiciary should be made a request, not mandatory. Notwithstanding the issues about the independence of the judiciary, that

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raises a big question about judicial training in general. What will the Secretary of State do to ensure that the training is undertaken in practice? 

I apologise, Mr Turner, but some of these questions are quite detailed, because we received the bundle only right at the end. Can we have the grammar corrected on page 9 of the model letter? There seems to be a bit of confusion about the difference between a simile and a metaphor. 

Also, because we received the papers so late, and because I am not a lawyer, there are some things that I would like explaining. I do not know what “surrender” is. It seems to be controversial, so will the Secretary of State explain that? Will he explain how the difference between common law and civil law jurisdictions operates, and why that is relevant here? What representations has he received from the professional bodies, the Law Society, the Bar Council, the police and the judiciary? Will he also explain non-regression and transposition? Finally, he has explained that the situation in Scotland will be amenable to the Scots, but will he also say a word about Northern Ireland? 

Mr Clarke:  There is a parallel measure in the road map on translation and interpretation, which we are quite content with, and as we are pretty good in this field already, we do not think that it will lead to any significant cost. As I have already said, we do not think that the terms of the directive will require us to make any significant changes to our practice. Indeed, they are rather modelled on our practice of giving a letter of rights to an accused person. Several of the questions turn on that same thing, which I should clarify once more. 

Any foreigner arrested in this country is subject to the same law as any British subject arrested in this country. The criminal process that decides their guilt or innocence and that eventually sentences them is exactly the same whether they are a foreigner or British. In our view, the British system is one of the best in the world for justice being provided without discrimination on the basis of nationality or origin, but one will get one’s just deserts or one will be acquitted according to what the British process of law finds to be the facts and finds to be one’s culpability. 

With foreigners who do not speak good English or who are not familiar with our system, we give them certain basic rights, and we always have. If one has a sense of justice, as we all do, it is obvious that the accused person must understand what he is charged with. If he is not English, one must also ensure that he understands the nature of the evidence being given against him, that he has the right to be represented by a lawyer and that he has a clear idea of what he can do to try and exonerate himself. 

That process is designed to ensure that all 27 member states deal with foreigners on that basis. If a British person gets arrested in Romania, does not speak a word of Romanian and does not know how the Romanian police and courts operate, he will be given a clear statement of basic things—what exactly it is he is accused of, what he can do to answer the evidence, and what the appropriate stage is before he finally pleads guilty or not guilty in defence of himself. Then he decides what to say in response to the evidence. He has a chance to

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look at it. That is what runs through here. It is so close to our own practice that I do not think the training of judges in this particular legislation will be required. They would wonder why they had been taken away from their morning’s list to have explained to them what are actually the underlying principles of a British trial. But I quite agree with the hon. Lady. The training of the judiciary in appropriate cases is very important. There is far more of it nowadays, and it is essential. As I said when I started, it so happens that, compared with most of the European measures I have seen, this is the one that least disturbs our present practice, and it has very minimal aspects to it. 

On Scotland, it costs the Scots about £500,000. They do not have a letter of rights at the moment—they will devise their own. It will be in accordance with Scottish law, not English and Welsh law, but they are happy to comply, because their standards are the same as ours. They will wish to give the same justice to people who appear in Scottish courts. 

On the disclosure point, as part of the negotiation we took part in after we had opted in, but confident that we would get it, we have got an understanding that material will not be disclosed where an important public interest is at stake. In the British case, that is usually for national security reasons, as the hon. Lady said. In the rare cases where it arises—the Security Service does not have an interest in 999 of every 1,000 criminal cases in this country—our practice, which is sometimes essential in the national interest, will not be disturbed by this arrangement. 

I certainly accept any correction of grammar that the hon. Lady wishes to make. She asked me to define various subjects—she took one word out of context. I will have a go if I look at the context. I know what “surrender” and “transgression” mean. It depends on which transgression we are talking about. It leads me back to apologising yet again for the rather rushed nature of all this. We must try to work out among ourselves how we can give better notice and have proper discussion in this Committee and in the European Scrutiny Committee. 

Finally, the hon. Lady touched on the question of the difference between a common law and a civil law system, which is something that I keep addressing in my visits to Brussels. These European documents are tending to be produced in accordance with the civil law practice, which is widespread among the majority of members of the European Union. Over and again, there is a difference—in procedure, usually—in some aspects of practice between what we and the Irish, Maltese and Cypriots do, because they are common law countries as well, and all the others. For example, in criminal proceedings, there is a juge d’instruction in France. An inquisitorial proceeding goes on, in which the judge investigates. From the word go, we have the police, then a prosecutor and our own lawyer. We are adversarial from the start. Every system requires the person to be told what he is charged with. Every system requires the person to be given proper notice of the evidence in relation to the charges, but at different stages. I was assured by the Commissioner and offered support by other Ministers that the drafting would be altered to meet the needs of the British, Irish, Maltese and Cypriots, and that has happened. So there are various stages where we changed the wording, but it now complies with our common law

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process. I hope in future that more of the drafts produced by the Commission or by the Council of Ministers will have some common law principles built into them at the start. We hope to address that and improve the way in which such things are drafted. We have demonstrated that by opting in and negotiating sensibly we have been able to have it put in perfectly acceptable terms to the United Kingdom. 

Mr William Cash (Stone) (Con):  It is a great pleasure to be here under your chairmanship, Mr Turner. It is an equal pleasure to have the Lord Chancellor and the Secretary of State for Justice appear here. I pay tribute to him, as I have the greatest respect for his views on such matters. I do not always agree with them, but at least I know that he is consistent, as are some of us. 

We now know that the matter would be subject to the jurisdiction of the European Court, because we have opted in. In relation to the question from the Opposition about the consultation through the judiciary, which the Lord Chancellor did not answer, does he take into account the remarks made by Lord Chief Justice Judge in the judicial studies lecture of March 2010, in which he drew attention to the problems that would arise if we opted in? 

The question is simple. If we opt in, decisions of the Luxembourg court on issues arising out of the treaty of Lisbon become binding on us all, but that will bring in its wake the spectacle of the Strasbourg court ruling on problems arising out of the consequences of our enforcing binding decisions of the Luxembourg court, about which litigants will have to complain to the Strasbourg court, although, distressingly, they would not be able to complain in our own courts. Has the Department, let alone the Lord Chancellor, had consultations with the Lord Chief Justice about that? Can he tell me something specific? In light of that important lecture, I cannot believe that the Lord Chief Justice was not consulted at all. 

Mr Clarke:  First, going back to the hon. Lady’s intervention for a moment, I am told that our rules on disclosure apply to witness protection and much else besides. It is not just security exemptions; it is matters of importance. A lot of time has been spent in detail on that part of the directive by those responsible for negotiations, and we are content that it does not disturb any of our arrangements, including those introduced by the last Government. 

As far as professional opinion is concerned, I have given the opinion of some of the non-governmental organisations. We know that the Law Society is in favour of it. I have not received any representations as far as I am aware—none have reached me personally, anyway—from any professional body or practicing lawyer complaining about the advent of the measures. We did not consult the judiciary particularly, but I will check the next time I meet the Lord Chief Justice whether he is in favour of giving foreign accused people the rights in the directive, which are largely in line with the rights that we give them already. Frankly, I would be astonished if he were not. I do not want to take the Lord Chief Justice for granted, but I do not anticipate that I will have any great difficulty with him or other members of the judiciary about it. 

My hon. Friend quoted an interesting passage from the Lord Chief Justice’s lecture a few months ago. As he knows perfectly well, it has absolutely nothing whatever

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to do with the directive before the Committee. It is true that in our various international obligations, we are subject to various international courts. One is the European Court of Human Rights in Strasbourg, to which we have been subject since 1947 under the convention. Another is the European Court, which ensures that member states comply with their obligations under the European treaties arising from their membership of the European Union. There is even the International Court of Justice at The Hague. 

The Lord Chief Justice asked an extremely erudite question about what would happen if a judgment from the European Court in Brussels— 

Mr Cash:  In Luxembourg. 

Mr Clarke:  Yes, of course. What would happen if it were challenged in Strasbourg? At some stage, I will have the opportunity to discuss it with him and see whether he can produce an answer to his own question. All I can say is that the chances of that arising from the directive before us today are minuscule. It does not raise such questions. In so far as the jurisdiction of the European Court is concerned, it is theoretically the case that the European Court would have jurisdiction if we were ever accused of breaching the directive, but I cannot for the life of me see that we are likely to do so. I see no hint that anybody is thinking that we might, having reached the process that we have in negotiating it. 

Apart from my hon. Friends the Members for Hertsmere and for Stafford with their wide— 

Mr Cash:  Stone. 

Mr Clarke:  Sorry. I am 20 years out of date, as usual. It was called Stafford and Stone in balmier days as he and I both recall. 

Such important, grave weighty matters will have to continue to be addressed very heavily whenever European issues come up, but not under the directive. Even today, I have not heard anyone find any particular proposition in the directive to which they can object. I might almost say that I have not met an opponent to the merits of giving such rights to foreign, accused persons. I have already cited the various civil liberties bodies that would be absolutely outraged if we suddenly said that we would not comply with the standards in the British courts, when the rest of Europe was going in that direction. We shall save it for another day to have a seminar on the Lord Chief Justice’s lecture, and what happens if there are conflicting judgments from two of the international jurisdictions to which we are responsible. Perhaps we should take matters to the International Court of Justice at The Hague to see if that is a higher power to which we can appeal. 

Mr Clappison:  I join my hon. Friend the Member for Stone in welcoming the Lord Chancellor and to say what a great honour it is that he has graced us with his presence. I took it rather for granted, but it is good that he is here. I want to give him two examples where he has found fault with the proposals. In response to the intervention from the hon. Member for Bishop Auckland, my right hon. and learned Friend said that there will be no requirement for judges to be bothered and to have

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their lunches interrupted by training, but he will see that article 9 sets that out as a requirement on him. It states: 

“Without prejudice to judicial independence and differences in the organisation of judiciary across the Union, Member States shall request those responsible for the training of judges, prosecutors, police and judicial staff involved in criminal proceedings to provide appropriate training with respect to the objectives of this Directive.” 

Since “shall” is used, that requirement is something of an obligation on judges now. 

Secondly, I want to draw a more serious matter to my right hon. and learned Friend’s attention when, in letters to the Scrutiny Committee about the effects of some of the provisions in British law, particularly in his letter of 18 November, he expressed worry about two areas of the proposals—one of which he has dealt with, and the other he has not. He suggested that there was a concern that the public interest provisions on disclosure were not as satisfactory as those that currently existed in UK law. 

I come now to the requirements on disclosure by the prosecution to the defence, which is a sensitive part of the criminal procedure. My right hon. and learned Friend went on to suggest—it seemed to be the tenor of the letter—that the requirements on disclosure made by the directive were broader than the requirements presently made of the prosecution and states that they were 

“on the other hand broader than UK practice in that no distinction is made between used and unused material.” 

It was on the basis of that letter that the Committee recommended our debate and other matters, too. 

We subsequently had the letter from my right hon. and learned Friend of 25 November, but it did not deal with the second point about disclosure. For the reasons set out by the hon. Lady and others, disclosure is a very sensitive part of the criminal process because it enables the defence to get its hands on all sorts of material, including material that the prosecution does not intend to rely on in court, but which may be in the background to the case. They would be sensitive matters, such as the identity of informants, giving information to the police, police techniques and many others. 

It would seem that the concern arose from article 7, which is pretty comprehensive in the requirements that it places on the prosecuting authorities. My right hon. and learned Friend has said helpfully today that everything has now been arranged and agreed, that it has all been squared and that there is an understanding that everything will be well in the world, but I ask him respectfully whether he can tell us what exactly has changed between 18 and 25 November, what specific wording was changed and what is being changed under article 7, which is the only article of the directive that we have in front us to scrutinise? 

I have a number of questions, but as a starter I want to ask my right hon. and learned Friend to tell us whether the provisions of article 7, as I apprehend them, cover every case in this country when an accused is remanded in custody by the police, by the magistrates court, or by the Crown court. That is before the trial takes place, obviously. If so how will the requirements of article 7 be satisfied by the police, the magistrates courts or the Crown courts in those cases where an accused is remanded in custody before the case has been fully prepared and before the prosecution have served

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any statements upon the defence? How will the requirements of article 7 be satisfied at that early stage? I think that is an important question. 

Mr Clarke:  On the training of the judiciary, the original text, which we sought to amend, said that we had to ensure that relevant officials had knowledge of it all. It seemed to put some fairly mandatory requirements on us. As my hon. Friend has just said, the draft now merely says that we shall request those responsible to provide relevant information. I will not labour the point again. There is not a great deal to be provided because what is being set out here is pretty well in line with the practice we already follow. If they do what they have always done, they are not likely to go very far astray. 

We have satisfactorily sorted out the whole disclosure point. I said several times that article 7 has been the principle object—although not the only object—of the drafting discussions and very important drafting amendments to it have been made. Let me set out precisely where we are. The original Commission text of article 7 referred to a “case file”, which is a concept not used in the UK legal systems. 

Mr Cash:  On a point of order, Mr Turner. I just need to know what date this is. 

Mr Clarke:  It was prepared for today’s debate and it is a list of changes to article 7. This is where we are now. The letter quoted by our hon. Friend was a letter that I sent at an earlier stage explaining what we were going to try to get changed. I am describing the changes that have been made since the letter which he quoted was written, which mean that the present directive—the one we are discussing tomorrow—satisfactorily deals with these things. 

Mr Clappison:  On a point of order, Mr Turner. 

The Chair:  Order. The hour allotted for questions in the Committee is almost over. But it appears that several Members still wish to ask questions. Under the provisions of Standing Order No. 119 therefore, I am extending question time to allow the remaining questions to be asked. We shall move on to the debate after no more than half an hour from now. Any extra time given for questions will be deducted from the total time for debate, so we shall still finish no later than 5 o’clock. 

Mr Clarke:  I am not trying to exhaust that time at all, Mr Turner. As people keep coming back to article 7— 

Mr Clappison:  On a point of order, Mr Turner. That was not my point of order and I am extremely grateful to the Lord Chancellor for the way in which he is dealing with this and for the great care that he is giving to it. However, can we be directed to the part of the documents now before the Committee to which he is referring, because if we are scrutinising something we should have the documents in front of us? 

Mr Clarke:  I rather assumed the Committee had before it the current draft directive. It is a not insubstantial document. I have a copy of it myself. It is article 7 of that document to which I am referring. I have already dealt with the case file point, which we have sorted out. We have secured amendments which accommodate the UK systems of disclosure. The article now refers to

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access to “materials of the case” rather than access to the case file. The text is now clearly based on European Court of Human Rights case law, which is binding upon us. Article 7(1) provides that the information that is essential to challenge arrest or detention should be provided. Article 7(2) sets out that the suspected or accused person or their lawyer should be granted access to at least all material evidence for or against that person in order to safeguard the fairness of proceedings and to prepare the defence. Article 7(3) sets out when such access should be granted, and article 7(4) provides for exceptions to the disclosure obligation, where it may lead to a serious risk to the fundamental right of another person or, if strictly necessary, to safeguard an important public interest. 

That reveals that we had to work quite hard. However, we were not trying to protect ourselves from a great European threat; we were trying to phrase article 7 in a way that was equally applicable in common law countries and in civil law countries, but using terms that were applicable to our existing common law practice. That is where we are now and that is why we have moved on from the earlier letter that I sent. We have succeeded in addressing those problems by amending the draft directive. If my hon. Friend the Member for Hertsmere does not have a copy, I am sure that he can rapidly be provided with one, as it is what we are debating today. 

Mr Cash:  That demonstrates the value of these proceedings. My noble—I nearly said noble Friend, in the light of his being Lord Chancellor. My right hon. and learned Friend treats this rather as a matter of de minimis, as if everything in the garden is rosy and that we do not need to concern ourselves with anything, that everything is fine and that there really is no difference between our system and systems elsewhere in Europe, and various other broad-based assumptions that we have got used to over the years. 

However, the document that I have before me, dated 30 November—I assume that that is the one that we are dealing with; it is at the front of the documents provided to the Committee—clearly states that, as exceptions to paragraphs 2 and 3 of article 7, there is a proviso that 

“this does not prejudice the right to a fair trial, and access to certain materials may be refused if it may lead to serious risk to the fundamental rights of another person or, if strictly necessary, to safeguard an important public interest such as in the cases where it risks jeopardising an ongoing investigation or where it may seriously harm the national security of the member state in which the proceedings take place.” 

I shall not draw from that the assumption that it will apply in every instance. However, I make this simple point, which we have recently come across, and I shall put it in the form of a question. 

If the situation arises under article 7(4), for example in relation to issues of torture and fundamental rights or in relation to matters where disclosure is regarded as being contrary to the public interest, is it not the case that there is a serious question to be answered? In the case of Rowe and Davis v. United Kingdom, which was about case law under the European convention on human rights, there would be a transposition from ECHR law to Luxembourg law, which was the point that I made earlier. Is it not therefore clear, within the framework of exceptions being provided under article 7(4), that we see a vivid illustration of the seriousness of the

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situation that could arise if there were a conflict between Strasbourg on the one hand and Luxembourg on the other, which may be in the offing? 

Mr Clarke:  My hon. Friend has just read out the same bits of article 7 that I referred to as something that we secured by an amendment. He talks about our right not to disclose material if that is in the serious national interest or will protect the fundamental rights of another person. That is our current practice, and we were anxious to ensure that the draft directive did not alter that. 

Our present practice is giving rise to considerable difficulty in a number of the cases mentioned by my hon. Friend. I have recently been engaged on such matters, and the Government are addressing the question of how to handle that sort of evidence. He mentioned the Guantanamo Bay internees and the question of torture. The civil actions being brought for damages ran into all kinds of trouble. There was a conflict between the desire of the internees to see all the evidence, and the desire of the security services for them not to see the evidence if that was not in the national interest. That is an important point, and the Government have committed to producing a Green Paper next year to address the question of how we handle security evidence in court. That problem bedevilled the previous Government, and it is bedevilling this Government. We want to draw a line under the problem and sort it out, which the directive enables us to do. The terms of article 7 are such that our present rules on disclosure remain unaffected. It is up to us to sort out how we want our rules on disclosure to apply in those very difficult cases. 

There is a non-regression understanding that means that everything we do in the European Union is aimed at upholding the standards of the European convention on human rights, to which every member of the European Union is party. That is not difficult in this case; there is no real problem, because we believe that the directive being discussed by member states adheres to the standards of that convention. My hon. Friend asks again about what would happen if the European Court of Justice puts an interpretation on an action that differs from the interpretation of the European Court in Strasbourg. There could be a conflict of judgment but, as I have said before, we should cross that bridge when we get to it. I do not think it a problem that is likely to arise in the directive before us. 

The Chair:  Order. If no more hon. Members wish to ask questions, we will proceed to the debate on the motion. 

Motion made, and Question proposed,  

That the Committee takes note of European Union Document No. 12564/10 and Addenda 1 and 2, Draft Directive of the European Parliament and of the Council on the right to information in criminal proceedings; and endorses the Government's support of the proposal to ensure that individuals subject to criminal proceedings across the EU are given timely information about their rights, information on the accusation against them and access to evidence. [9th Report of Session 2010-11, HC 428-xi, Chapter 3].—(Mr Kenneth Clarke.)  

3.38 pm 

Helen Goodman:  My speech will not be quite as good as that of the Lord Chancellor, although possibly it will be nearly as good. Of course, the Opposition agree that

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everyone has the right to a fair trial, and the right to proper information in criminal proceedings is an intrinsic part of that. That basic human right is recognised throughout Europe and, as the Lord Chancellor has said, we want to see those rights in practice throughout the European Union. 

I am concerned about the handling of this issue and about the short notice. I know that the Lord Chancellor has taken that on board and I hope that his officials will ensure that we do not have such short notice on another occasion. That said, we support the objectives of the motion and do not intend to oppose it. 

3.39 pm 

Mr Cash:  We have demonstrated, I hope, that these proceedings provide a reasonable and good opportunity to elicit responses on some of the issues that have caused difficulty as the matter has proceeded. Just by way of reference to the work of the European Scrutiny Committee—I am not suggesting that the Lord Chancellor did not indicate that there were benefits from the way in which the system functions, and I am quite sure that it can and should be improved—let me say that as matters relating to directives, regulations and so forth come within our scrutiny framework, we put forward amendments, and that leads to a process of negotiation. That is one of the aspects of European scrutiny that is not commonly appreciated, and the Committee covers a very wide range of matters. We have the Lord Chancellor here today. We deal with every single Department of State, and these directives and regulations come before us every week. As a result of our in-depth analysis of them, we are able to respond to the explanatory memorandum and make changes. 

It would be fair to say that the reasons why article 7 is getting better is, in part, because of the intervention by the Committee. Officials may think—as all civil servants do—that they have the answers to every question, but I beg to differ. That is why the Committee is here; we come forward with ideas. No disrespect to them, they are all sitting here and showing a good sense of humour as I make these comments, but the reality is that between Ministers, who have myriad responsibilities, and civil servants, who have responsibility for the detail, we manage to work our way through a proper democratic system to try to get to the bottom things, such as the matter that has been raised today. 

As for the improvements in article 7, they have derived some benefit from the investigations of the European Scrutiny Committee. It is a good case of dialogue. When we get to the European Union itself, the Commission and the others are far less responsive because they are far less accountable. I pay tribute again to my right hon. and learned Friend for coming here. It is quite unusual for Secretaries of State to come, and it just shows that he takes his responsibility for scrutiny very seriously indeed. 

With respect to the practical aspects of this proposal, I have made a number of points about whether or not there might be a conflict of judgments or of jurisdiction which could arise between the European Court of Human Rights and the European Court. One must remember that under these arrangements, it will be the Luxembourg court that will call the shots. Therefore, not only will its judgments be binding on all the member states, but it

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cuts both ways. In Leek, in Staffordshire—immediately adjacent to my constituency—there was a horrific case involving the European arrest warrant. I suspect that the Lord Chancellor’s advisers will be well aware of it. A constituent of my hon. Friend the Member for Staffordshire Moorlands (Karen Bradley), who lived in Leek, was convicted in absentia to a 15-year sentence by a process that can only be described as abominable. I advised my hon. Friend to raise the matter at Prime Minister’s questions. I imagine that the Lord Chancellor had some discussions with the Prime Minister about it and things were put right. None the less, the reality is that there are serious dangers in the manner in which some jurisdictions behave in relation to criminal law. Having been on the Committee for many years and having had Fair Trials International—they have been extremely pleased by the way in which we have responded to jurisdictional issues between different countries—appear before us, I can see that progress is being made. However, serious problems remain. As a Committee, we have had to issue quite serious censure to some of the judges in some of the other countries—I mention Bulgaria and Romania, for example—as to the manner in which they conduct their affairs, which is still continuing. 

I am not at all convinced that bringing in the directive will make the slightest bit of difference to what goes on in such countries. For all I know, they are political appointments, and judges are not given the kind of training or do not even come from a background of professional integrity that we assume in our own judicial system. Therefore, it would be unwise of us and of the Lord Chancellor to assume that just signing a piece of paper will somehow or other improve the lot of the British citizen who gets caught up, as we found for example in another case in Portugal. There is a list of such cases. The Lord Chancellor will have a dossier—he might even have it among his files—of those British citizens who have been put in jail in other countries, and who are there and have been transposed to those places under the European arrest warrant. 

Simply having discussions—even going to the Justice and Home Affairs Council, or whatever it is called, tomorrow and discussing such matters of pieces of paper and lines on a sheet—will not necessarily change how those other countries behave, even if some of that discussion, on the face of it, appears much more consonant with our own ideas. None the less, a number of matters remain outstanding that are not consonant with our system. 

The very fact that the Lord Chancellor has quite rightly said that he will be going to the Council to have further discussions is, perhaps, an indication that, behind the scenes, outside the Committee Room, other member states around the table are proving to be rather difficult about a number of matters that we and his advisers will want to get to grips with. Perhaps there is none. Perhaps everything in the garden is as rosy as the Lord Chancellor indicates. However, it is important to remember that matters relating to fundamental rights—such as trial by jury, or a judicial system in which judges come through the ranks by a process of professional integrity and are not just political appointments—are intrinsic to the workings of justice. The words of the Lord Chancellor, simply saying, “Well, I think you are making a lot of fuss about nothing,” would turn out to be little solace to

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someone who has been banged up in some stinking jail by a decision made by a political judge in the country in question. 

I am fascinated by the expression on the face of the Opposition spokesperson, the hon. Member for Bishop Auckland. Perhaps she does not realise that some of our constituents—even one of hers, as it does happen—are subject to serious miscarriages of justice, so we need to take the issue as seriously as we are. We should also bear in mind that when the Lord Chief Justice indicates that there could be problems in the compatibility of the jurisdictions of Luxembourg and Strasbourg, he, because he practises law and, as a judge, in a serious way, has got something useful to say. 

It is also important to bear in mind what the Lord Chief Justice said with regard to how our judges are applying the law of the European Court of Human Rights—Strasbourg decisions—in our own courts. He had a number of important things to say about that too, but point No. 1 involves problems in the Luxembourg arena, because the Luxembourg court applies to all the member states according to the tenets of the concept of law, which is not even the same as our own Supreme Court. 

Point No. 2 involves the European Court of Human Rights and how British judges are applying the Strasbourg decisions, which is also causing the Lord Chief Justice concern. Are we to take the Lord Chief Justice seriously? I hope that I am not misreading, misunderstanding or misrepresenting his comments in any way, but on the decision of the European Court of Justice in Luxembourg he said that 

“the decisions of that court bind our domestic courts. That is a consequence of our domestic legislation.” 

That is the European Communities Act 1972. 

The European Scrutiny Committee is conducting an inquiry, which I instituted, on the question of the principle of sovereignty. That is not just national parliamentary sovereignty, because this Committee is effectively passing legislation on the opt-in. By having this debate we will be lifting the scrutiny reserve. Lifting the scrutiny reserve will mean that the Lord Chancellor can go off and make his own decision, because the debate would have taken place, provided that we do not divide against him. We are engaged in a legislative process that is effectively opening the door to the decisions of the European Court. That arises under sections 2 and 3 of the 1972 Act. 

The inquiry that I set up has raised some incredibly important and interesting questions on the manner in which a number of the members of the Supreme Court have been throwing doubt on the supremacy and sovereignty of Parliament. I do not need to go into details, but Lord Bingham, who sadly died only a few months ago, was so concerned by the manner in which members of the Supreme Court were adjudicating such matters as we are now discussing that he said that, as far as he was concerned, three members of the Supreme Court were way off the mark in their interpretation of parliamentary sovereignty. 

I have already referred to Rowe and Davis v. UK, which arises under article 7 and has been specifically mentioned by the Minister in the correspondence. The statutory obligation of our courts is to take account of the decisions of the court in Strasbourg. That is different

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from the position for the European Court of Justice, which is binding. One is to take account of the decisions in Strasbourg; the other is binding upon us, which is a big difference. The manner in which members of the Supreme Court interpret it is, therefore, dependent upon them, and not on Strasbourg or our own courts. The Lord Chief Justice continues: 

“I have no problem with this. Naturally, the decisions there must command our respect…We can follow the reasoning and if possible identify and apply the principle to be found in the decisions, particularly those of the Grand Chamber. But I venture to suggest that that is not because we are bound to do so…but because, having taken the Strasbourg decision into account and examined it, it will often follow that it is appropriate to do so. But it will not always be appropriate to do so. What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court.” 

If, as a result of opting in and applying these particular provisions in relation to sensitive areas of disclosure and other matters, we find that we are actually shifting the manner in which our legislation is interpreted by these respective courts, I think that that is something that we ought to consider too. 

The Lord Chief Justice went on to say that we should beware of moving away from the common law system, because he said that it was our duty to do so. 

The Chair:  Order. The hon. Gentleman is moving away from the substance of this debate. 

Mr Cash:  Mr Turner, I understand what you mean. However, I insist—if I may—that the application of this particular directive depends on the manner in which it is interpreted, either in Luxembourg or by our own Supreme Court. I think that it is a matter of some interest and some concern that the Lord Chief Justice has made that point, both in relation to the question of how the opt-in would apply in respect of the balance between those two courts and the fact that he says that we should beware of losing the ability of our common law, which will go under these provisions by being subsumed into the Luxembourg court in such a manner as to cause a considerable amount of uncertainty as to the justice that will follow. It is not just a minor matter and it is not just a matter of assuming that there is a certain compatibility in the procedure. The question is how it is interpreted and also the manner in which the Luxembourg court itself operates. On that point, I will conclude, but it is a serious matter. 

Mr Clappison :   I begin by echoing the comments of my hon. Friend in saying how helpful it has been to have the Lord Chancellor’s presence this afternoon and how helpful his replies have been, particularly on the matter of drafting. He will understand, having heard some of the concerns that have been expressed, how the European Scrutiny Committee came to express some of the concerns that it expressed. I am sure that we are most grateful to him for endeavouring to allay those concerns this afternoon. 

However, I must say that, irrespective of the question of scrutinising the precise details of this directive and trying to see what the effect of particular wording will be, it is the import of the directive itself that should also concern this Committee. In my view, it would be a matter of concern purely in itself. My right hon. and

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learned Friend the Lord Chancellor has done his best to allay our concerns this afternoon and there have been discussions about drafting in the Council. It may be that those concerns will meet all possible problems in the future. We do not know, because it depends upon how the European Court of Justice views these matters and how it interprets the provisions of this directive. 

It is a significant matter in itself that the area of law that is covered by this directive, which is a very wide area of law, is now falling within the jurisdiction of the ECJ. My right hon. and learned Friend is, of course, quite right that all legislation from the EU that comes under the treaty of the functioning of the EU—that part of the treaty of Lisbon—is all covered by the jurisdiction of the ECJ. However, this country is not yet subject in these matters to the jurisdiction of the ECJ, because we have not yet opted in to these provisions. Therefore, by opting in to these provisions, we would bring these parts of the criminal justice procedure within the ambit—or grasp—of the ECJ for the first time. 

That is a very significant step and once we have made that decision, according to the principles of the EU there is no going back. If we do not like what the ECJ decides, it would not be open to us to change it, as it would be open to us in the case of a ruling from a British court based only on British law to change what that British court had decided to do through an Act of Parliament and reverse it. We cannot do that with rulings of the ECJ. If we did that, as we have been informed in the European Scrutiny Committee during other considerations on the European Union Bill, the whole fabric of the EU would fall apart and there would be very wide-sweeping consequences. We just cannot do that. So, once we have opted in, there is no going back. There is also the question of future amendments that may come along. We do not know what the scope of such amendments might be, and under the provisions of the treaty of Lisbon, we will have the opportunity to decide whether to opt in to any future amendments, in the same way that we have opted in to the substantive legislation. In practice, however, it would be very difficult for us not to opt in to any future amendments to the directive. 

Mr Cash:  Does my hon. Friend think that, in the context of this being a novel situation, there is a transfer of powers as well? 

Mr Clappison:  Yes, absolutely, because there is a transfer of power over our ability to make our own law on that aspect of criminal justice procedure. As we know, that is only part of a step-by-step process; it has been described as a road map, and we can anticipate what else may lie ahead on that road. It would be a brave man who ventured to suggest that there would not be a stream of further legislation affecting other aspects of our criminal justice procedure. I venture the idea that, in due course, our criminal law itself would possibly come from that source. 

There is a wide rationale behind the legislation, and my right hon. and learned Friend the Lord Chancellor has adopted it openly and honestly on behalf of the Government. That rationale is almost without limit, as far as criminal procedure is concerned. We have been told that we need to adopt this to ensure that British citizens abroad have the same safeguards in other jurisdictions as they do at home, so there is approximation

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in the laws and procedures of the EU members, and so we can all have confidence in each other’s legal systems. One could apply that argument to virtually every aspect of criminal procedure and criminal law. It goes that wide; it is virtually without limit—the rationale could be applied to justify unlimited changes. Of course, we might be told in the case of future changes, “Well, it’s what we do already, it will make no difference”, but it would be up to the European Court of Justice to decide that on the precise terms of whatever future directive came along. 

We have to say openly that this goes much wider than only EU citizens in each of the member states. It affects, as my right hon. and learned Friend the Lord Chancellor has conceded, every criminal case, every arrest, every prosecution, every appearance in court and every stage of criminal proceedings in this country. Article 7 relates to situations where 

“a…person is arrested at any stage of the criminal proceedings”. 

It does not matter whether they are a member of an EU member state: for any person, or any individual who is involved in any offence, what happens will be governed by these provisions. 

Mr Cash:  Does my hon. Friend accept this point? It would appear that a very large proportion of the United Kingdom’s population and electorate tend to agree with those of us who are deeply sceptical about the manner in which the European integration process operates, and this is an example of a situation where, in this relatively small Committee, we are making what is effectively a momentous decision along the lines that he has described, which is not to be underestimated. However, the consequences that follow from it, in relation to our constituents and their daily lives, may turn out to be accelerated and made much worse as a result of whatever the European Court in Luxembourg may subsequently decide, as my hon. Friend rightly said. It is not only a matter of being Eurosceptic or difficult but of pointing out something that affects the rights of the individual constituents whom we represent. 

Mr Clappison:  There is a lot of force in what my hon. Friend said. In my mind’s eye, I see a constituent, who is a victim of a crime, coming into my constituency surgery to complain about a decision that has been made by prosecutors not to prosecute the offender because of problems over the disclosure of evidence, and what can be done about it. If that is as a result of this directive in a ruling by the European Court of Justice, there is nothing that we can do. We cannot change it. It is not within our power as legislators, unless we choose to leave the European Union. It is not hard, therefore, to image such a set of circumstances. 

We need to see just how important a step this is—my hon. Friend the Member for Stone used the word momentous. It is not something that we should do lightly, and the Committee would do well to consider the history here. Not that long ago, justice and home affairs matters—I think that they were then called police and judicial matters—were subject to Ministers of the European Union meeting informally to discuss how they could co-operate. That process was then put on a more formal basis in the treaty of Maastricht—which we well remember—under the treaty’s pillar structure, wherein the matters were to be governed by the third pillar. 

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It was made clear at the time that the third pillar was not to be part of the rest of the Community’s legislative and legal framework, that it would not be subject to the European Court of Justice, and that it would not be governed by the Commission in the same way as the first pillar was. For what were seen as important reasons at the time, the first and third pillars were made separate. I can remember being told as a Member of this House that the pillar structure would guarantee that we would never have the European Court of Justice deciding on our procedure or law, and that it would protect us from European legislation. 

Of course, not long afterwards the pillar system began to crumble. It was partially dismantled by the treaty of Amsterdam and dismantled altogether by the treaty of Lisbon, within which all home affairs matters were brought. The Government of the day made a great point of the important exception that this country had: an opt-out from the judicial and home affairs structure, because of the distinction between the constitutional treaty and the treaty of Lisbon. 

Mr Cash:  My hon. Friend will understand my saying, as will the Lord Chancellor, that the Conservative party was completely and totally united throughout the proceedings on Lisbon. We opposed the treaty root and branch, with the exception of perhaps two or three Members, some of whom are not so far away from me now. 

Mr Clappison:  To be fair, I think that there are members of the Committee who have always held different views, and one respects those differences—[ Interruption. ] There are possibly two considerable differences there. 

It was significant that there was an opt-out. We are told that it is, of course, possible to opt in, which is what we are doing here, but let us not underestimate the importance of opting in in each individual case. 

Returning to my original point, the rationale that we have been given today for agreeing with the directive would apply virtually across the board to all aspects of criminal procedure and law. That concerns me, because in the general election I stood on a platform not of giving away more power to the European Union—I think that my constituents would see this as giving away power—but of repatriating powers from the European Union. I cannot see how opting in to such a provision fits into a repatriation of powers, when we are subjecting ourselves voluntarily to European legislation and to jurisdiction from the European Court over a matter of criminal procedure. That concerns me greatly. 

I am grateful for the explanations of the measure, but I am afraid that even if all my concerns on its detail were allayed, I would still be concerned about doing this at all, and about what it meant for the future. I would quite honestly question where it would all end. 

Mr Clarke:  I am certainly not here to debate the Lisbon treaty, but it did enshrine a valuable opt-out for this country on justice affairs. The result is that we can choose to opt in to, or out of, new proposals. I can assure my hon. Friends that the Government take such action only after serious reflection, and internal discussion and clearance. We opt in only when we believe that the interests of British subjects and British justice are served by doing so, and I think that that is one of those examples. 

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The roadmap, which was set out in 2009 under the Swedish presidency, is intended to be a series of measures, all aimed at raising the standards of criminal procedures across the rest of Europe. I am sure that my hon. Friend the Member for Stone wanted a list of the kinds of subjects that we intend to cover in the roadmap as nation states. He will see that they are all elements of criminal law procedure where proper protection should be given to someone who has been arrested or is facing a criminal charge. The Government will exercise our right to opt in or out of each of those measures according to our judgment on whether doing so would benefit us and British citizens abroad. 

Mr Cash:  I understand my right hon. and learned Friend’s point well, but would he ask his advisers to look at the memorandum provided by the then legal advisers to the European Scrutiny Committee, now Speaker’s Counsel, regarding the efficacy of the opt-out at the time? We were then very much in opposition, but now we are in government, and I would be grateful if he at least gave me an assurance that his advisers will take a close look at its implications. 

Mr Clarke:  I am sure that we will, and I will refresh my memory of the contributions made to our debates at the time when I get the chance. The purpose of the roadmap is to address the problems that my hon. Friend illustrates. We all know that there are occasions when British people are arrested abroad or are subject to an arrest warrant and then suffer what we would regard as very bad practice when the allegations against them are dealt with. He describes a situation that did apply before Lisbon, under the old arrangements of co-operation and under the third pillar. Fair Trials International and my hon. Friend could find good examples of cases where British subjects appeared to have been badly treated. That is why the previous Government went along with the roadmap, as have all other member states. It is intended to ensure that standards are appropriately raised. 

My hon. Friend then says that it is just a piece of paper and that it might not change the practice in parts of central or eastern Europe or elsewhere. I have been to Romania, and it does have a very good reforming Justice Minister who would not deny all the weaknesses of the Romanian system that have been described. It is incumbent on us all to support the Romanian Government’s efforts to improve matters there, but it is not Romania in particular that we are aiming at. 

What would happen if a British subject thought that the court that was dealing with them had not followed the standards set out in the European directive, if it is adopted? He will bring an action in the European Court. The European Court has a jurisdiction that would address the very problem that my hon. Friend has described. Its power is not to act as a court of

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appeal and it does not start making its own legislation, but it does have a duty to interpret directives and oblige member states to honour the treaty obligations that they enter into when they sign up to such directives, and it can impose financial penalties. 

My two hon. Friends who have doubts about that both fear that we will be taken to the European Court and will face penalties for some deficiencies on our part. Well, so be it in my opinion, if we fall short of the standards set out in the directive. It seems to me to be largely based on British practice. I do not remember an occasion when any foreign national could claim that we were not upholding the highest standards of justice here, and I think that that is true of the vast majority of other European states. I do not seriously contemplate that they will have any difficulty complying with those standards. 

There is a certain ambiguity, because we are addressing a problem that my hon. Friend the Member for Stone described graphically and providing a potential remedy for it, but he is worried that it might rebound on us if applied here. I really do not think that that will happen. I can assure hon. Members that we will take all future opt-in decisions carefully and submit them properly to scrutiny, and I am grateful for that scrutiny. The scrutiny has reinforced our efforts to renegotiate the terms of several articles—most importantly, article 7 of the directive. It undoubtedly reinforces my negotiating position to be able to make it quite clear that I could not go back to the scrutiny Committee unless we got the amendments to comply with our practice. 

I am grateful for the support of the hon. Member for Bishop Auckland. The previous Government supported this direction of travel, as do the Labour party, the Liberal Democrat party, and the Conservative party, which leads the present Government. There are distinct advantages in seeing the directive go through. 

I shall bear in mind all the opinions that have been expressed if I manage to get to Brussels tomorrow and get to this discussion. I shall also be reinforced by the Committee when we see whether the European Parliament is prepared to pass the directive, or wants alter it again. I assure hon. Members from all parties that we shall seek to defend the position that we have negotiated in the Council, which we think is satisfactory in every respect from the British point of view. 

Question put and agreed to.  


That the Committee takes note of European Union Document No. 12564/10 and Addenda 1 and 2, Draft Directive of the European Parliament and of the Council on the right to information in criminal proceedings; and endorses the Government's support of the proposal to ensure that individuals subject to criminal proceedings across the EU are given timely information about their rights, information on the accusation against them and access to evidence. [9th Report of Session 2010-11, HC 428-xi, Chapter 3]. 

4.16 pm 

Committee rose.