EU Justice and Home Affairs Measures

Debate between William Cash and Dominic Raab

Wednesday 19th November 2014 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

It is a pleasure to follow the hon. Member for Blackley and Broughton (Graham Stringer) and, I must say, rather refreshing, because I agreed with every word he said—it was common sense from start to finish.

Earlier this month I visited my constituent Colin Dines, a retired recorder and a man of impeccable character. He was issued a European arrest warrant in 2010 after being accused of a tendentious, tenuous involvement in a telecoms fraud in Italy. He has never been interviewed by the Italian authorities, which would at least have given him a chance to clear his name, and he has never been given the opportunity to present evidence showing his innocence. The key Italian suspects were all acquitted a long time ago.

Despite the incompetence of the Italians and the manifest innocence of my constituent, he has languished under the threat of prison for four and a half years. The case limps on with no resolution in sight, with Colin stuck in legal limbo. It has cost his family an enormous sum of money. Colin suffered a stroke just days before he was due to be surrendered to face either an Italian jail or possibly house arrest, and that was the only reason why the warrant was temporarily suspended.

That case brings shame on British justice, but it is not an isolated case—they are all too frequent. Do not take the word of a politician on that; listen to this country’s most senior criminal judge, the Lord Chief Justice, Lord Thomas. He has stated publicly that the problems are systemic because fast-track European arrest warrant extradition assumes common standards of justice across Europe. We all know that is a sham, whether it is the Greek or Italian systems, let alone the post-Soviet systems in place in central and eastern Europe.

We all agree in this House that EU extradition is vital to fight crime, so a rather false choice is being put up—the hon. Member for Blackley and Broughton summed that up rather well. The truth is that what we object to is the scattergun approach under the European arrest warrant, which devastates the lives of too many innocent people. Let us remember what this House was set up to do: defend innocent people from bullying by arbitrary rulers. If we believe in British justice, we cannot allow that to continue—not for the price of returning a few criminals, or even many criminals. I would like to hear from all those who have been making that very utilitarian argument how many innocent people should be sacrificed for the return of 10 or 20 criminals, because that is the false choice that they are putting up.

[Sir William Cash]

My hon. Friend is making an excellent speech. Does he agree that, basically, the reason the Government are giving in to these proposals is that they have an inclination towards, if not an obsession with, making sure that we stay within the framework of European law as it is prescribed rather than looking at the fundamental changes that are needed?

The UK’s Justice and Home Affairs Opt-outs

Debate between William Cash and Dominic Raab

Thursday 10th July 2014 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

It is a great pleasure, as always, to follow my hon. Friend the Member for South Swindon (Mr Buckland). Although we do not see these issues in exactly the same way, he always provides a huge amount of food for thought, delivered with great style and panache. I apologise to Members on both sides of the House for arriving late to the debate. I gave notice to the Speaker. It was because of the two statements and an engagement that I could not get out of.

I want to start the substance of my comments by welcoming the opportunity for Parliament to scrutinise this issue. Whatever one believes about the substance, we are getting far more scrutiny in this whole area than we ever did under the previous Government. I also want to say that I fully support the Prime Minister’s overarching strategy. In his article in The Sunday Telegraph on 16 March, he made clear his intention to renegotiate Britain’s relationship with the EU, including, as he spelt out explicitly, in the area of crime and policing. I think that he is absolutely right.

It is worth noting that polling commissioned by Open Europe has found that this matter, far from being some ivory tower issue with no resonance or relevance to the public, was the public’s fourth highest priority for renegotiation. It is therefore right not only in principle, but in terms of resonance and relevance to the great British public. Likewise, the Prime Minister showed tremendous moral clarity in fighting not only for Britain, but for an important democratic principle in relation to the next EU Commission President. I feel that we need to do the same now.

I will avoid rehearsing points I have made in previous debates on the topic, which I know Ministers will have heard until they are blue in the face. I will instead confine my remarks to four key points. First, I believe that we must take a long-term view about the supranational direction of EU justice and home affairs policy, taking into account the evolution of policy and law, the ambitions of the Commission and the tidal direction of travel among EU member states. One does not have to buy into Viviane Reding’s dream of an EU-wide Minister of Justice to see that we are taking incremental steps, slowly but surely, like a slow tide, towards a single EU justice system. We can debate the pace, but I challenge anyone in the House to argue that that is not happening in practice.

One need only look at Europol and Eurojust. Currently, colleges of national police and prosecutors collaborate on important cross-border work, such as combating drugs, human trafficking and terrorism. Originally they co-operated on an essentially intergovernmental basis, but national democratic control is slowly but surely being whittled away before our eyes, like salami-slicing. If we look at the detail of the two new regulations on Europol and Eurojust, we see a strengthened role for the Commission, additional duties of co-operation on national Governments and, most importantly, the eroding of national Governments’ ability to decline requests for co-operation or to hand over data.

Eurojust’s revised mandate will provide substantial co-operation with the new EU Public Prosecutor’s Office, which will grow in time, leading to more and more pressure for it to consume functions currently undertaken by Eurojust. That is inevitable. We can see it happening bit by bit. If we were truly drawing a line in the sand, would we not make it clear now that we will not be opting into those new measures?

At the same time, if we opt into the basket of measures, as the Government propose doing, we will hand from the British Supreme Court to the European Court in Luxemburg the last judicial word on the scope of these swelling supranational powers and our corresponding national democratic duties. I, for one, am reluctant to see that happen because of the European Court of Justice’s record of judicial activism. In answer to my hon. Friend the Member for South Swindon, the difference is that judicial activism in the UK can be overruled by elected and accountable Members in this House. That democratic control is not available in relation to decisions of the ECJ, which are being extended bit by bit.

We saw that in the High Court last year, when Mr Justice Mostyn, hardly a right winger on the judicial benches, made it very clear that, to his great surprise, the ECJ had torn up our opt-out from the EU’s new charter of fundamental rights. We saw it with the ECJ’s attitude towards the extraterritorial application of the EU Tobin tax to Britain—although, those proceedings are still ongoing. And we saw it this year with the ECJ’s frankly ludicrous ruling on internet search engines, conjuring from thin air a “right to be forgotten.” That is important, because we can argue about the rights and wrongs of privacy and transparency, but that was patently judicial activism, and there is very little that we in this House can do about it.

[Sir William Cash]

We are talking about not just one judge but several judges who are making similar remarks. They are genuinely demonstrating a frustration with the overarching jurisdiction of the European Court. In the past few months, we have seen Lord Mance and several others making similar comments. They are conscious of the difficulties that are arising.

[Mr Raab]

My hon. Friend is absolutely right that this is a growing problem, and I think that that is recognised at senior levels of the judiciary. We should listen with as much vim and vigour to what the judges have to say as we do to what the Association of Chief Police Officers says.

On the internet search engine ruling, it is important to say that there is a cultural and values issue at stake. It is not just some legal constitutional issue. A right to be forgotten may suit French privacy laws that gag the publication of the peccadilloes and crimes of the rich and powerful, but it directly cuts against our tradition of media freedom, transparency and free speech.

Having seen the effect of ECJ judicial activism on this area of crime and policing, do we really want to allow the ECJ to determine the powers and responsibilities of British police forces, the British criminal process and even foreign forces, through joint operations, operating on British soil? That is a huge risk for us, and I fear that we risk the Luxembourg Court doing for British policing what the European Court of Human Rights in Strasbourg has done for UK border controls.

One reason why I refuse uncritically to defer to ACPO on these issues is that it is ill-equipped to gauge the long-term threat to operations and ultimately public safety of these developments. These are constitutional developments, so it is not just a question of consulting on the administrative arrangements that we have in place now. If anyone in favour of opting back into these measures had listened to this debate, they would have thought that ACPO had been wholeheartedly in favour of opting into more measures than we are doing. If we look at the evidence it gave to the House of Lords Constitution Committee, we see that it recommended opting into only 13 measures, which is substantially fewer than the number that we are planning to opt into.

The second issue that I wish to address is the European arrest warrant. Many Members will have their own constituency horror stories, and I am afraid that I am no different. In fact, my constituency seems to attract problematic cases. The one that sticks in my mind and, frankly, in my throat is the case of Colin Dines, a former judge of impeccable character who was falsely accused of involvement in a major mafia-related Italian telecoms fraud. The story would be almost amusing if it were not so tragic. Without any evidence presented or any opportunity for him to explain his innocence to the Italian authorities, which he was confident that he could do, he was the subject of a European arrest warrant, which was nodded through by our courts, as they must be. He faced the prospect of incarceration or, at best, house arrest for months on end until his trial. Tragically, the only thing that temporarily saved him from being carted off was that he had a stroke from the stress of it, which meant that he was temporarily deemed not fit to travel. The case remains hanging over him like the sword of Damocles, which is totally unacceptable. It is also unacceptable for me as a law maker in this House to see the fate of citizens across this country.

That case is not an isolated injustice. If Members want to grasp the scale of the justice gap under the EU law and the European arrest warrant, they should listen again to our senior judiciary, such as our top extradition judge who gave evidence to the independent inquiry into extradition carried out by Sir Scott Baker. Lord Justice Thomas said that the European arrest warrant system is “a huge problem”—his words. He did not say that it was a small problem, or that there were isolated incidences, but that it was a huge problem that had become “unworkable”.

I pay tribute to the Home Secretary, who has looked very carefully at what can be done within the EU framework decision. Additional safeguards were introduced by the Government in the Anti-Social Behaviour, Crime and Policing Act 2014 and they are positive steps in the right direction, and the Government deserve great credit for looking at the matter so carefully. In my opinion, the safeguards do not go far enough. That is also the opinion of Fair Trials International. In particular, the bar on extraditing suspects when the case is not trial-ready could be made tighter. I fear that the new leave to appeal requirement undercuts all the safeguards introduced. Above all, it is a shame that we were not allowed any time on the Floor of the House to debate those clauses, important and positive as they were, because they were introduced late in Committee.

I understand from Ministers that there is no appetite in Brussels to revise the EU framework decision itself, a point that I make to my hon. Friend the Member for South Swindon. That is a sad reality that we have to accept. The question is what we do next. I believe the preferable option would be to opt out of the European arrest warrant and renegotiate a bilateral extradition treaty with a limited number of extra safeguards—the few modest additions that we need to make it safe for our citizens. We would still have fast-track extradition, but we would stop the justice system in effect selling our citizens out, which is what it does at present.

European Convention on Human Rights

Debate between William Cash and Dominic Raab

Tuesday 19th June 2012 Commons Chamber

[Mr Raab]

The right hon. Gentleman makes a very important point. He crystallises things cogently, but in this case there were no dependants, so what he says does not apply. This is an interesting case. There are many examples where someone has committed a vicious, violent crime—it might be murder or, as in some cases, a sexual offence—has had a child in the meantime and has coerced members of the family, putting them under duress, so that they give evidence, which this person has then relied on to stay in this country. I challenge the view that it is always in the best interests of a child to be with a father of such character and background, but it is very difficult for a court to make that determination when they have evidence in front of them.

I shall discuss one case, which is the most skewed and perverse that I have come across. There are reporting restrictions on it, so I shall be careful about talking about some of the details. It involves an individual raping his partner and then claiming that relationship as part of the family life that he relied on to stay in this country. Many people would regard that as both legally unsustainable and morally perverse.

This is not just about the deportation of foreign criminals; it is about the shifting goalposts of article 8. It is very important to understand that the state of the law now—that static snapshot—is not the sole issue; it reflects years of development. My worry is about the direction in which things are headed. I worry that it will be increasingly impossible to apply border controls, be they in relation to the deportation of foreign national criminals or to other aspects of coalition policy, including cracking down on things such as forced marriage, increasing language requirements or dealing with sham student visas and bogus colleges. All those things will come later because the goalposts will keep shifting. That is a real danger for this Government and for future Governments.

[Mr Cash]

In his excellent, extremely well researched and powerful speech, my hon. Friend has not yet referred to the manner in which section 6 of the Human Rights Act 1998 impinges on this question. When I was shadow Attorney-General and I invoked our party to repeal the Human Rights Act as part of our policy, it became the policy up to and including the general election. Does he agree that nothing will stop the courts striking down immigration rules as a disproportionate violation of article 8 if they decide to do so?

[Mr Raab]

I thank my hon. Friend for his intervention. If he is patient, he will find that I will come on to deal with exactly that point, but I wish to avoid duplication at this moment.

I shall now deal with the points made by the shadow Home Secretary. She clearly knows little of the history of this problem or has conveniently forgotten it, so let me remind the House that this problem has been created by the Human Rights Act that her Government introduced. In fairness, there is an additional element to this, because the previous Prime Minister at least recognised that there was a problem. The House may recall his barnstorming 2007 conference speech in Bournemouth. His biggest cheer came when he vowed, all misty eyed, that

“any newcomer to Britain who is caught selling drugs or using guns will be thrown out. No-one who sells drugs to our children or uses guns has the right to stay in our country.”

As a result, we got changes, including the UK Borders Act 2007, to which the shadow Home Secretary referred. Section 32 of that Act deals with the deportation of foreign national criminals—so far, so good. However, by including an express reference to the Human Rights Act in section 33—something that was totally unnecessary and a matter of political choice—the previous Prime Minister, far from strengthening our capacity to deport, fatally weakened our capacity to deport. Ultimately—this is the point that my hon. Friend the Member for Stone (Mr Cash) is making—primary legislation trumps the Human Rights Act, but not if that Act is expressly written into the relevant statute. That may sound like a technical point, but it is crucial to understanding what went wrong with the 2007 Act. The former Prime Minister emasculated his own deportation law, and that speaks volumes about the expediency with which Labour has approached this debate. I believe that the shadow Home Secretary will be a bit less pious about this issue and will perhaps eat a little more humble pie before the House—I am sure that the shadow Immigration Minister will do so. [Interruption.] We live in hope.

I welcome the changes and the motion, but there are questions about whether the changes to the guidance and a mere resolution of this House can deliver the reform we need. I put that precise question to the Lord Chief Justice in November, when he appeared before the Joint Committee on Human Rights. He made it clear that without primary legislation the courts would probably not rein in the expansion and application of article 8 in deportation cases. So I would be grateful if the Minister said what the Government will do if these changes are not fully effective, as at least Government Members hope they will be. Does he agree that if we cannot stop the rot, we will need a new UK borders Act to deal with this issue clearly, categorically, once and for all? It is vital that we can measure the success of the proposed changes we are debating today. Will he ensure that the Home Office now records the number of deportation cases frustrated on human rights grounds, with a breakdown in respect of articles 3, 6 and 8—the main offenders—so that we can measure, see and scrutinise whether this problem gets better or worse as a result of the changes being introduced? The Home Office has not routinely recorded those data. The Immigration Minister went out of his way to ensure that it produced a single quarterly snapshot in 2011—I welcome that and commend him for it—but can he reassure us that that information will be routinely recorded from now on?

Human rights reform is contentious and it needs to take place on three levels: reform of the Strasbourg court; replacement of the Human Rights Act with a British Bill of Rights; and UK legislation to strengthen our border controls.

For my part—others might feel differently—I recognise that our coalition partners are sensitive about the Human Rights Act. I accept that we are unlikely to see the reform that I would like to see in this Parliament and I have already made clear my commitment to the absolute prohibition on torture. I cannot understand, however, why anyone except the lawyers, non-governmental organisations and academics who have made an industry out of human rights would die in a ditch to stop the deportation of serious criminals because it might disrupt their family, social or private ties. To me, as I have said, that suggests a skewed moral compass, not just legal chaos for our border controls.

The changes we need require primary legislation, but we do not have to touch the Human Rights Act to solve this specific problem. It can be done by statutory amendment. I hope that the proposals before us today will tackle the problem—they have my full support—but, if they do not, I hope that all parties will agree to consider very seriously the case for amending the UK Borders Act. We need to draw a line in the sand, to restore democratic control over the criteria for deportation, to stop the ever-expanding list of legal excuses used by some of the worst criminals to stay in this country, to protect the public and, above all, to restore their confidence in British justice. We will do that only by injecting a healthy dose of common sense back into the increasingly perverse application of our human rights law.

European Union Bill

Debate between William Cash and Dominic Raab

Wednesday 26th January 2011 Commons Chamber

[Mr Raab]

I thank the hon. Gentleman for that intervention and I agree. Indeed, senior members of the judiciary have said the same thing. The Lord Chief Justice recently gave a very informative speech saying that Britain no longer seems to be the champion of the common law. The ever-increasing move towards European integration in this area undermines that. Any proposed opt-in to justice and home affairs legislation, which goes to the very heart of our laws, liberties and way of life, must first be subject to proper oversight by and the approval of the House.

[Mr Cash]

I congratulate my hon. Friends the Members for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris) and for Esher and Walton (Mr Raab) on their speeches.

After 26 years of scrutinising treaties of one kind or another, sometimes tabling as many as 120 or 140 amendments, debating them in detail and listening to the arguments put forward by Government spokesmen, who say, first, for example, that we have reached the high water mark, and then that the measure is not what some people fear, perhaps it is inevitable that I have developed a certain resistance to the assumption that what we hear from the Front Bench will necessarily occur—I hope that is a nice way of putting it—and that I have become if not cynical, which would be an unfair word, at least uncertain about the consequences that subsequent events may produce.

In other words, we do not get what it says on the tin, or necessarily what we are told we are likely to get. I am very sceptical, not just Eurosceptic. I question not the honesty of individuals, but the accuracy of their predictions. I therefore believe that this set of measures, as has been amply described by my hon. Friend the Member for Hertsmere and others in this debate, is hugely important, although not more important than any of the other provisions that are part of a continual stream of acquiescence in European integration.

Where the provisions speak of not allowing measures to go through by way of opt-in, by imposing the requirement for some kind of parliamentary approval, I am well aware that we table amendments, we argue the case, we have a European scrutiny process, we go through it in detail, it has been universally applauded by Ministers and people throughout the land—