Jacob Rees-Mogg
Main Page: Jacob Rees-Mogg (Conservative - North East Somerset)Department Debates - View all Jacob Rees-Mogg's debates with the Home Office
(10 years, 9 months ago)
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The Secretary of State for the Home Department (Mrs Theresa May)
I beg to move,
That this House believes that the UK should opt out of all EU police and criminal justice measures adopted before December 2009 and seek to rejoin measures where it is in the national interest to do so and invites the European Scrutiny Committee, the Home Affairs Select Committee and the Justice Select Committee to submit relevant reports before the end of October, before the Government opens formal discussions with the Commission, Council and other Member States on the set of measures in Command Paper 8671, prior to the Government’s formal application to rejoin measures in accordance with Article10(5) of Protocol 36 to the TFEU.
For 40 years, ever since the United Kingdom entered what was then just a Common Market, power flowed in one direction—from this country and this place, which ought to be sovereign but in practice is often not, to the institutions of the European Union. Since the referendum in 1975, not once was the consent of the British people sought or given for a series of treaties that gave more and more power to Europe.
The Government’s decision, which I announced in a statement last week, to opt out of around 130 European justice and home affairs measures, before seeking to opt back into those measures that we believe work in the national interest, will be the first time in the history of our membership of the European Union that we have taken such a set of powers back from Brussels. Let us be clear that, however complicated the issues we are about to debate—I will soon come to those issues—we are first and foremost talking about bringing powers back home. That is something—
Mrs May
Will my hon. Friend allow me to finish my sentence? He is quick off the mark, as he always is on these matters.
That is something that should be celebrated by anybody who cares about national sovereignty, democracy and the role of this place in making the laws of our country.
Jacob Rees-Mogg
I am very grateful to my right hon. Friend for giving way to me so early on. Is it not unfortunately the case that 43 of the measures are, in effect, defunct anyway, that the ones we opt back into come under the European Court of Justice, and that that is a much bigger give-away of power than the relatively minor removal of powers that is happening under the opt-out?
Yvette Cooper
My hon. Friend makes a really important point. Indeed, those concerns were raised by the House of Lords in its detailed and thorough report on the opt-out and opt-in process about the risks in the negotiating process. That is why it is important—I shall come on to this—to have those proper assurances in place and to have proper information about the attitude of other European member states across the Council and about the attitude of the Commission. I shall give way to the hon. Member for North East Somerset (Jacob Rees-Mogg) if he still wants to intervene, but then I wish to make progress.
Jacob Rees-Mogg
Accepting that it is important that there are extradition arrangements with other countries, does the right hon. Lady not think that it would be possible—since Lisbon, the European Union has legal personality—to negotiate an agreement between the United Kingdom and the EU that covers this, but is not justiciable in the European Court of Justice?
Yvette Cooper
The Government have said that that would not be possible and that they would have to go back to the previous convention. Under that extradition convention, we experienced some long delays, including taking 10 years to send a suspected terrorist back to France. I do not think that is acceptable, and I do not think that the public would think that it was acceptable for us to have a French terrorist, or someone wanted in France, in this country and being unable to send him back quickly to face trial and to face justice.
Mr Raab
My hon. Friend makes a good point. I will come back to the proposals in the Anti-social Behaviour, Crime and Policing Bill and the extent to which we need to scrutinise them. I accept that this is an important opportunity to mitigate the blunt edges of the EAW, but the fact is that, at the moment, its broad net sweeps up too many innocent British nationals such as Andrew Symeou, Deborah Dark, Michael Turner, Edmond Arapi and, in my constituency, the retired judge Colin Dines, who suffered a stroke as a result of the pressure and stress of being subject to the warrant. We hope and expect that it will be dropped, but he and his family will still be left to pick up the pieces.
Jacob Rees-Mogg
Is it not the case that if we opt back in, the European arrest warrant cannot be better in future than it is now, because at present it is not subject to the jurisdiction of the European Court of Justice or to enforcement by the European Commission, but then it will be? Therefore, whatever laws we pass in this House will not be determinative. It will be determined by the European Court of Justice.
Mr Raab
My hon. Friend makes his point, which I will come back to, in a powerful way. The issue has two distinct elements. We could get away with UK safeguards without amending the framework decision, but would they then be whittled away by the Luxembourg Court? My hon. Friend is right to raise that point.
I have mentioned a series of cases, all of which are appalling miscarriages of justice. The point I want to make—this is difficult for our coalition partners, who feel strongly about civil liberties and have strongly supported extradition reform when I have raised it in this House—is that if people are concerned about extradition and blunt extradition under our arrangements with the US, they cannot turn a blind eye to what has been happening under the European arrest warrant, because this is not about the odd case but systemic. Britain’s senior extradition judge, Lord Justice Thomas, stated publicly in his evidence to the Baker review—this has already been alluded to—that the EAW system has become “unworkable” and that unfairness is a “huge problem”.
This is not about a piffling, odd case here or there, or the trivial cases that get cited and bandied around left, right and centre; it is about serious cases such as that of Symeou, who was, in effect, wanted for killing someone, and Colin Dines, who was wanted for a very serious fraud. We all accept that those are extraditable crimes—that is not the issue. The question is whether we trust the investigating prosecuting authorities and courts in some of these other countries and whether we turn a blind eye to some of the appalling prison conditions.
Mark Reckless
It seems the Minister is saying that in substance it would be something to trigger a referendum, but there is some technicality that means it will not in this instance.
Jacob Rees-Mogg
I am grateful to my hon. Friend because this is a most interesting point. Is it arguable to say that Lisbon is itself a treaty change, and that what is happening is consequent to a treaty change and therefore triggers the referendum mechanism, in spite of what our right hon. Friend the Home Secretary has said? Might that not be worth testing at judicial review?
Mark Reckless
My hon. Friend is right to say that these matters could lead to significant delays in the courts, and a test of judicial review. Some of those procedures can go on for some time, and there would be the prospect of a number of appeals. I wonder whether the Government have taken the sequencing of these issues into account in their timing.
Jacob Rees-Mogg (North East Somerset) (Con)
It is good news that the Government, in their wisdom, have acceded to amendment (b), tabled by the Liaison Committee Chairman, to water down the initial proposal. It is none the less worth reviewing the process of parliamentary scrutiny that this has gone through, because what we had thrown at us last Tuesday was deeply unsatisfactory. I would like to record that dissatisfaction, even though the movements that have been made since are admirable.
It is worth bearing in mind that on 14 December 2012, the Home Secretary and the Lord High Chancellor wrote to the Chairman of the European Scrutiny Committee to say:
“We would hope to be in a position to provide you with the first of the Explanatory Memoranda by early January and to have provided all necessary Explanatory Memoranda by the middle of February. We hope that this will be acceptable to you.”
There were delays, time goes by, and the Whitehall machine did not work with that efficient Rolls-Royce nature that it has been noted for historically. On 11 February 2013, the Home Secretary and the Lord High Chancellor wrote once again—these were becoming regular billets-doux between the Lord High Chancellor, the Home Secretary and my hon. Friend the Member for Stone (Mr Cash)—and on this occasion they said:
“Each of these Explanatory Memoranda will be made available to Parliament shortly, to help inform consideration.”
Now, I do not know what view right hon. and hon. Members would take of the word “shortly”. Time is an elastic concept, but it seems to me that “shortly” does not stretch from 11 February 2013 through to last Tuesday. At that point, the elastic had long since snapped. It was broken, and there was a feeling that the urgency that had once been promised had dissipated.
Jacob Rees-Mogg
The education at Stonyhurst of my hon. Friend is exquisitely fine. His quotations are better than mine, and I pay tribute to his ability to quote such fine words.
The elastic last Tuesday was firmly broken. Instead of having proper time for parliamentary scrutiny, and instead of having time when the Select Committees could do their work thoroughly and consider this matter of the greatest importance, we were told that what was going to happen was a vote today to agree to the Government’s position, with very little opportunity for any scrutiny at all. It is therefore hugely to be welcomed that the Government decided that that was not the right way to proceed, and that the views of Parliament, representing our constituents, were important in this matter to be able to see what was happening, to deliberate, to report, to take evidence and to decide what, if anything, it might be in the national interest to opt back into. While I am grateful that the opportunity for parliamentary scrutiny has improved, it was really quite extraordinary that last Tuesday we were in such a situation as to have been denied parliamentary scrutiny almost altogether. There is some praise now, but it came from a position of dispraise before.
We have heard the most wonderful, glorious line repeated by a number of speakers that this is a most noble repatriation of powers: that never before in the history of the European Union have powers been repatriated to a nation state and that previously it has been a one-way street. The power has gone out: it has left the United Kingdom and gone to our friends in Brussels, but on this occasion there was a noble fight. Horatius was on the bridge standing there fending off the massed hoards coming from Europe to impose their will on brave little Blighty, and happily 98 powers have been restored to this great country. And the ones that are being given back? Well, they have them anyway, so why are we worrying about that at all? [Interruption.] My hon. Friend the Member for Stone is saying that I am leading up to a quotation. No, I am not; I am leading up to the detail.
This may be rather boring, and one might think speeches in this House unaccustomed to delving into such matters as detail. I hope that under, I think, Standing Order No. 42, this will be neither repetitious nor tedious—well, it may be tedious, but it will not be repetitious, because nobody else has mentioned the detail—but I should like to go through some of the items that we are opting out off, the repatriation of powers that we are getting.
Mark Reckless
My hon. Friend says that he is going to tackle a matter of detail. Before he proceeds on his new list, perhaps I can tell him that the detail we were discussing before related to when a referendum is triggered. The actual text of the European Union Act 2011 is:
“Subject to subsection (4), a treaty or an article 48(6) decision falls within this section”.
There is no comma separating
“a treaty or an article 48(6) decision”.
This can surely be described as a treaty decision, in which case it would be caught.
Jacob Rees-Mogg
I am very sympathetic to the view that my hon. Friend is expressing. The view of the Government is otherwise, but when the 2011 Act was being debated it was made clear that these matters can be settled by judicial review. If there is a continuing uncertainty, that is a sensible route to go down once we know what issues will be opted into.
Mr Cash
The very thought of a judicial review in the name of Rees-Mogg invokes memories of the greatest of all the cases on the Maastricht treaty, in which my hon. Friend’s own dear late father was the plaintiff. Perhaps my hon. Friend would be good enough to take up the cudgels in his own right.
Jacob Rees-Mogg
I am grateful to my hon. Friend for reminding me of the activities of my late noble kinsman, who did indeed bring an action on the Maastricht treaty, supported by the late kinsman of my hon. Friend the Member for Richmond Park (Zac Goldsmith), who was the backer of that great venture. It may be that we can fight on where our fathers once fought, with the continuing help of my hon. Friend, the seemingly immortal hon. Member for Stone.
Chris Bryant
I have just been cogitating on the hon. Gentleman’s earlier reference to Horatius Cocles. If I remember correctly, Tacitus admits that Rome was surrendered despite the efforts of Mr Cocles.
Jacob Rees-Mogg
I thought the hon. Gentleman was going to refer to the geese that saved Rome and divert us with a bit of cackling of geese, but it was not that in the end.
Let me return to the exciting detail of where we are restoring powers. The first example that I shall regale you with, Madam Deputy Speaker, is the Council act of 3 December 1998, laying down the staff regulations applicable to Europol employees. I think that staff regulations are very important and noble, but I hardly see that as a fine repatriation of powers. There are lots of other examples—I will not go through them all, because time is short and there are far too many.
However, there are eight decisions relating to classified information. If hon. Members are willing to return to the analysis by the Government, they will see that of those eight, all of which are being opted out of, the Government say:
“To our knowledge only small quantities of classified information are currently shared with third countries under these agreements. If the UK decided not to participate in the agreement, we would continue to be able to exchange UK classified data directly with any third country.”
Therefore, eight of the 98 powers that we are repatriating are so trivial that we have not used them and, crucially, the point has been made that we could do that by agreement with the third countries individually and get exactly the same benefits. Indeed, one of the classified information-sharing deals refers to Croatia before it was a member of the European Union, so that one falls automatically, even if it were useful. I am therefore agreeing, to my horror—and probably equally to her horror—with the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), the shadow Home Secretary, who made the point about the triviality of some of these matters. They are really not very important.
The Schengen measures that we are pulling out of relate to the accession of member states to Schengen, which is hardly still relevant. Those measures include—oh, this is glorious—a council decision made on 18 September 2008 on the test of the second-generation Schengen information system, to which we are no longer committed. That is a serious repatriation of power!
I was thinking of the ancient types, making a comparison to Horatius on the bridge, but it is not Horatius; it is more like Sisyphus, perhaps in both senses of the man. The rock was pushed up to the top of the hill, and he tried to get it over the top, but straight it rolled back down again. To use a cricketing metaphor—which is appropriate in the middle of an Ashes test series—the degree of spin required to say that we are seeing the repatriation of power reminds me only of that famous ball bowled by Shane Warne, when he was first visiting England, when he removed Mike Gatting. It spun so much, so far that it went down in history as one of the great balls in cricket. Even Tich Freeman at his peak, when he got 305 wickets in a season, did not bowl so much spin as this Government are bowling. Even Jim Laker in 1956 was not spinning away so much when he got 19 wickets in Manchester against the Australians, for there is no real repatriation of powers.
Unfortunately, there are two sides of most ledgers. When we look at the powers that it is intended to opt back into, we see rather the reverse. To go into more of this tedious detail, which I know hon. Members find somewhat soporific, the first area—the biggest and most important—is the arrest warrant. We have heard from the Home Secretary about how the arrest warrant will be placed under strict controls. She even mentioned that there will be some limits on the joint recognition of offences, but that will not be decided by our courts or our Parliament. Instead, it will be decided by a foreign court, by foreign judges, and it will be subject to the agreement that has already been made in Brussels.
Mr Cash
My hon. Friend, who is almost always right on matters of substance, might reflect on the fact that, as I mentioned earlier, the words “judicial authority” in this context were severely criticised by the European Scrutiny Committee, and there is no guarantee that a court or a judge would be involved.
Jacob Rees-Mogg
That is an important point, and we should all learn off by heart the 2001 report by the European Scrutiny Committee, I seem to remember it was—
Mr Clappison
Does my hon. Friend agree that, on the face of it, although the Government’s proposed amendment to the European arrest warrant seems simple, it depends on the view taken by the European Court of Justice—if this area is now to be subject to the jurisdiction of the European Court of Justice—and that we have no way of knowing what that view will be?
Jacob Rees-Mogg
Where I part company with the Government is in believing that it would not be better to make these adjustments in the current structure, rather than under the new structure, and to negotiate to maintain the current structure with our European partners, because as it currently stands, if we change the law, that is the law of the land. Once we have opted in, it is not: the law of the land is subject to the European Court of Justice.
Then there is the issue of double criminality. The European Commission’s website, in explaining how the arrest warrant works, says quite clearly:
“If they are punishable in the issuing Member State by a custodial sentence of at least three years, the following offences”—
which are then listed—
“may give rise to surrender without verification of the double criminality of the act”.
Therefore, although we may pass a law saying that double criminality is a requirement before we extradite somebody, the rule of Brussels is not so. Now, in the situation we are currently in, our law is superior, but then their law will be superior.
Jacob Rees-Mogg
This is always a complex area. I have never thought that any Briton could ever suffer from xenophobia, because no Briton has ever been frightened of any foreigner.
I should like to continue a little on the detail and look at item No. 48, which is the Council framework decision on the European Union orders freezing property or evidence. Therefore, we are potentially going to give to the European Court and the European Commission rights to freeze the property of British subjects. Item No. 59 deals with the mutual recognition of financial penalties. “Mutual recognition” is the most dangerous part of the agreement on justice and home affairs.
Mr Clappison
My hon. Friend’s analysis of this list of measures is absolutely scintillating, but before he moves on from that one, is he aware that, as far as the freezing of assets or evidence is concerned, the problem is that in future the Commission will have the right of initiative to propose laws? These will then be determined through the co-decision and qualified majority voting procedure in the European Parliament and the Council of Ministers. That provision does not currently exist, because the agreement stands on its own and is subject to our law. In future, it will be subject to amendment under European law and we cannot know where that will end.
Jacob Rees-Mogg
I do not think that is quite it, because I think the process is subject to a Title V opt-out. Therefore, if any of those issues are recast, we then have to decide whether to opt into the recast decision, but the decision we have opted into will be a permanent part of the acquis communautaire and we will therefore be bound by it, even if it is recast.
There are a couple of other measures that are being maintained that it is important to mention, because the surrender of powers is so significant. They include the mutual recognition of confiscation orders, which is similar to the property issue. Then there are measures dealing with the enhancing of procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. Therefore, we are going to give mutual recognition to trials that are held without the person accused being present, which I have always thought a potentially highly unjust way of proceeding.
We should be deeply concerned about the proposals to opt back in, because of the lack of sovereignty we will then have over those essential measures. In these important areas—mutual recognition, the arrest warrant, trials without the person present and many others—we are handing over to the European Court the ability to decide whether our procedures are good enough or whether they have to be changed to meet European requirements.
Mr Cash
I know my hon. Friend has heard this before, but does he accept that, for all the examples that could be given to demonstrate that the European arrest warrant is sometimes convenient and suits the case of those in favour of it, there are many examples that demonstrate absolutely massive deprivations of justice for those people caught up in the EAW who are most unfairly treated by it?
Jacob Rees-Mogg
That is certainly the case, but I have sympathy with the Government wanting to have an arrest warrant that works. I think that is a rational and sensible view for the Government to take, but I think that they should go about it in a different way.
The European Union took legal personality at Lisbon. The EU makes deals as the EU with the United States, Korea and Singapore in the free trade area, but it has not yet been tested whether the EU can use its legal personality to make deals with member states of the EU—but that does not mean that it cannot be tried. It would be a sensible thing to do by treaty obligation not within the European treaties, but by separate treaty obligation.
It seems to me that the Government are taking the path of least resistance, which requires a surrender of sovereignty. That surrender of sovereignty is clearly in contradiction of the coalition agreement, which says that there will be no further surrender of powers to the EU. It seems to me, too, that the status quo is the opt-out and not the opt back in. Why? Because the status quo is that these issues are not justiciable in the European Court of Justice, and justice—and the fount of justice—is the essence of sovereignty. Why is Her Majesty sovereign? She is sovereign because she is the fount of justice in this country. When we hand justice over, so we hand sovereignty over—and so the move in sovereignty by making things justiciable in front of the European Court is a major change and different in kind from the opting out, which retains the powers in the United Kingdom.
I am hugely encouraged that the Government have listened so much and have been willing to move so much in a correct way to have proper parliamentary oversight. I am confident that at least the Conservatives in this Government have the wisdom and the ability to negotiate what is in the best interests of the United Kingdom and not to go down the path of least resistance. We need to maintain sovereignty here. We need to have agreements that represent our interests but are not subject to the power of a foreign court that is unaccountable to our electorate.
Chris Bryant (Rhondda) (Lab)
It is always an enormous delight to follow the hon. Member for North East Somerset (Jacob Rees-Mogg). I always feel as if I step back in time a little and a Beaufort, Neville or Spencer is addressing the House and taking us back to the 15th century when things were simpler and a Welshman knew that he could not trust an Englishman and that was about as far as xenophobia went. The hon. Gentleman gave us a fascinating tour of spin, and it is only a shame that the Home Secretary was not in her place to hear his complete demolition of her speech earlier this afternoon.
Jacob Rees-Mogg
Given that the Home Secretary now is here, I should like to say that that was not what I was trying to do.
Chris Bryant
The great thing about the hon. Gentleman is that he sometimes achieves that to which he does not even aspire—and on this occasion he did precisely that.
Let me start with what we all agree about. International criminals co-operate; they commit crimes in many different countries; they travel and they can commit crimes in one country from another country; and they try to get away with it. Crime does not stop at the channel, which is why co-operation on justice and home affairs across the European Union is a vital part of ensuring national security in the modern era. It is why I think Members of all parties have long supported the position of leadership that the British Government have taken in trying to improve these standards across the whole EU.
We also agree, I hope, that it makes sense to review that co-operation. That is precisely why Labour secured an opt-out—the one we are talking about using at the moment—in the first place. It is a Labour opt-out available to a coalition Government. I therefore suggest that the question before us now is really fairly simple. Is this motion right—the original Government motion, notwithstanding the intervention that the Justice Secretary was forced to make earlier when he suggested that he might accept an amendment that has not even been moved—is it necessary, and is it necessary now? Let me start with the “necessary now” question.
I suggest to hon. Members that we have heard no argument to say why the Government want this vote today. They signalled months ago that they were provisionally minded to opt out—fair enough—but their decision to seek to opt in to any measures, let alone the measures listed in the Command Paper, was announced less than a week ago. The Select Committees have been clamouring for more information for months, as has already been said by three of the Select Committee Chairs, begging for a list of potential opt-ins so that they could look at the matters in hand. They asked for explanatory memorandums and never received them. True, there were briefings to the media, particularly to The Daily Telegraph, but not to the Committees about how the Government saw each of these measures. The Government expected the House to endorse opting out and opting in, including the precise list of measures, without a single word of evidence from any outside body being taken by any Committee of this or the other House.