Eurojust and the European Public Prosecutor’s Office

James Brokenshire Excerpts

Tuesday 29th October 2013 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

I beg to move,

That this House takes note of European Union Documents No. 12566/13, a draft Regulation on the European Union Agency for Criminal Justice Co-operation (Eurojust), and No. 12558/13 and Addenda 1 and 2, a draft Regulation on the establishment of a European Public Prosecutor’s Office (EPPO); agrees with the Government that the UK should not opt in to the draft Regulation on the Eurojust at this time and should conduct a thorough review of the final agreed text to inform active consideration of opting into the Eurojust Regulation, post adoption, in consultation with Parliament; and further agrees with the Government that the UK should not participate in the establishment of any European Public Prosecutor’s Office.

On 17 July, the European Commission formally proposed the establishment of a European public prosecutor’s office and reforms to the existing European Union body, Eurojust. This triggered the UK’s opt-in protocol. The Government have been clear that we will not participate in the EPPO. As is clear from the motion, the Government also recommend that we should not opt into the new Eurojust proposal at the start of negotiations, but should conduct a thorough review of the final agreed text to inform active consideration of opting in post-adoption.

As the coalition agreement makes plain, we will put the United Kingdom’s national interest at the heart of every decision that we make on whether to participate in new European Union crime and policing measures. Our law enforcement and prosecution agencies must work closely with their counterparts in other European countries to combat the threat of cross-border crime. That does not mean, however, that we should sign up to new EU legislation that is not in the UK’s national interest.

I am sure that the House is clear about our position on the European public prosecutor’s office. As was established during a thorough debate in the House only a week ago, the Commission’s EPPO proposal is fundamentally flawed on many levels, not least in failing to pass the subsidiarity test. I am pleased to say that there has now been a sufficient number of votes in member states’ national Parliaments—including the House of Commons last week and the other place last night—to result in the issue of what is termed a yellow card, which means that the Commission is now required to review its proposal.

[Mr Nigel Dodds (Belfast North) (DUP)]

I welcome what the Minister has just said about the number of votes that will ensure that a review will take place. Will he confirm that, if the Government were minded to proceed with the opt-in—which I am glad they are not—that would require the endorsement of the British people, given the provision that any extra powers going to Brussels requires their endorsement through a referendum?

[James Brokenshire]

That is absolutely correct. The proposal for the creation of a European public prosecutor was framed specifically in those terms, and it would therefore require the endorsement of the public. I think that that is because, owing to the significant impact that it would have on the criminal justice system, the change would be so significant and fundamental—for reasons that I shall explain shortly—that it would require the backing not just not of Parliament but of the public.

The flaws in the EPPO proposal frame the context in which we must also consider the Eurojust proposal. The reforms proposed to Eurojust would involve deep connections with the EPPO, because the legal base for the EPPO requires it to be created “from Eurojust”. The Commission has sought to reflect that by creating operational, management and administrative links between the two bodies. That includes the exchange of data, including personal data; automatic cross-checking of data held on each body’s IT system; and Eurojust’s treating any request for support from the EPPO as if it had been received from a national competent authority.

At a time when we do not know what the EPPO will look like—given that the Commission must now review its proposal following the yellow card—let alone how the relationship between it and Eurojust might ultimately be defined in either text, it would be irresponsible in the extreme for us to risk binding ourselves to the European public prosecutor through our participation in the new Eurojust proposal. That would be a needless risk, given that we can review our place in Eurojust on its adoption.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Does the Minister not think it particularly unfortunate that when the functions performed by Eurojust are so necessary and so valuable, our ability to co-operate in that mechanism should be impaired by its becoming interlocked with a proposal with which we disagree?

[James Brokenshire]

That is an important point. As my right hon. Friend will know, the Government believe that the existing structure for Eurojust works well, and provides for effective practical co-operation in dealing with cross-border criminality. I shall develop that point further during my speech.

We also need to consider what the coalition programme says about preserving the integrity of our criminal justice system when deciding whether to opt into a new justice and home affairs proposal. The new Eurojust proposal would create mandatory powers for national members—powers that would allow it to require coercive measures at a national level. This House will already be aware that we have expressed concerns about any such powers being granted to Europol, the EU police agency, and our concerns hold true in this regard too. The proposed text goes further in explicitly requiring that those based in The Hague would be able to insist that national authorities take investigative measures in certain circumstances. That could, for example, include requiring them to issue a search warrant in the UK. That would cut across the division of responsibilities and separation of powers between police and prosecutors in England and Wales and Northern Ireland. It also fails to take into account the role of the independent judiciary in ensuring that certain coercive measures are granted to police in appropriate circumstances. Moreover, the proposals would conflict with the role of the Lord Advocate in Scotland, who has the sole, ultimate responsibility for determining investigative action in Scotland. That would be undermined by the proposed powers.

These are not matters of mere technicality. They are about fundamental aspects of our systems of law and would require wholesale and unjustified changes in order to be implemented. They would also conflict with the principle that operational decisions are best made as close to the operational level as possible, and would disrupt the operational independence of our law enforcement officials and prosecutors.

[Lady Hermon (North Down) (Ind)]

Has the Republic of Ireland agreed to sign up to Eurojust and the European public prosecutor’s office, in which case can the Minister assure the House that the UK’s reluctance to agree to either of them would have no negative impact on the very good working relationships between the Garda Siochana in the Republic of Ireland and the Police Service of Northern Ireland?

[James Brokenshire]

The hon. Lady makes an important point. The Republic of Ireland has said it will not be opting into the new Eurojust measure at this point in time because of concerns it has. That underlines that the UK is not in any way isolated on this matter. There are genuine and real concerns about the Eurojust measure, in large measure because of the interconnection with the EPPO. Various Parliaments around the EU do not support this measure, as shown by the yellow card having been issued in relation to the EPPO proposal.

[Mr John Redwood (Wokingham) (Con)]

I am grateful to the Minister for being so clear in identifying real problems with both proposals, and I urge him to dig in. We do not want these changes and I am glad he is standing up for us.

[James Brokenshire]

I am grateful to my right hon. Friend for the support he offers for the Government position. We have clearly set out genuine and real issues in relation to both these measures challenging some of the fundamental principles and aspects of our criminal justice system.

We also have concerns about the risks of reducing member states’ influence under the proposal’s revised governance arrangements. For example, the Commission has proposed the creation of an executive board with a very narrow composition, including the Commission itself, that would, among other things,

“prepare the decisions to be adopted by the College”—

the college being the body on which all member state national members of Eurojust sit. Moreover, the Commission has not proposed the creation of a management board along the lines of that which oversees Europol, which we think is better suited to effective governance of such agencies. In short, the proposal’s governance arrangements are unsound.

Fundamentally, we do not consider that the new Eurojust proposal is even needed at this time. The current legislation is still undergoing a peer evaluation which will not complete until next year, and the Commission has not put forward a convincing case as to why the new proposal is needed. There is not even a specific impact assessment from the Commission for its Eurojust proposal.

[Pete Wishart (Perth and North Perthshire) (SNP)]

The Minister mentioned the Lord Advocate of Scotland. What discussions has the Minister had with the Scottish Government and other devolved Administrations? What did they say to him about the Eurojust proposals?

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[James Brokenshire]

Consultation has taken place with the Scottish Government and with the devolved Administration in Northern Ireland to keep them apprised of the examination of this measure and to highlight the significant issues at stake. From the outset, this Government have made clear their opposition to a European public prosecutor’s office, for the reasons I have enunciated this evening. I do not think that there is any surprise about the steps that have been taken or, because of the fundamental nature of the objections that I have highlighted, any fundamental objection to the proposals I am setting out and to our seeking the House’s authorisation in the manner we are tonight.

The only rationale for the Eurojust proposal seems to be that in order for an EPPO proposal to be brought forward the Commission had to take into account the treaty requirement for it to be established “from Eurojust”. Our law enforcement agencies and prosecutors already work closely with Eurojust as it currently operates; this House will be aware that we are part of the current agency. They value the support it provides, but they must retain discretion to make decisions at a national level. Indeed, the Government value the current Eurojust arrangements, which support judicial co-operation arrangements, helping to co-ordinate serious cross-border crime investigations and prosecutions. The case of the murders in Annecy in France in early September 2012 demonstrates the value of the current Eurojust arrangements. The UK and French national desks at Eurojust were instrumental in co-ordinating activity that led to a joint investigation team, and in clarifying the legal and procedural options in each country. That is why we are seeking to rejoin those arrangements as part of the 2014 opt-out decision.

We also take seriously our commitment to tackling fraud against the EU’s budget, but we believe that the most effective approach is prevention, not the creation of a new EU prosecutor. The UK has a zero-tolerance approach to all fraud, with robust management controls and payment systems in place that seek to prevent incidences of EU fraud. We have welcomed recently agreed changes to EU payment procedures and the reform of OLAF, the EU’s anti-fraud office, to improve the reporting systems and investigations. Once they are fully in place, they will support existing and future UK investigations and prosecutions.

The Commission’s approach with the proposals under consideration today is, therefore, unnecessary and, as I have set out, the content raises substantial concerns. That leads us to conclude that we should not participate in the new Eurojust proposal at the start of negotiations. We will instead undertake to play an active role in negotiations on both Eurojust and the EPPO, seeking amendments to the Eurojust regulation to meet our needs while engaging in discussions on the EPPO to protect against any attempt to bypass our non-participation through the back door of Eurojust. At the end of negotiations, we will thoroughly review the Eurojust final text and actively consider opting in—in consultation with Parliament—on the basis of that final assessment.

If the final text remained unacceptable and we were not able to participate in it, there would obviously be risks for our longer-term participation in Eurojust. Depending on what was finally agreed, an assessment would need to be made on whether we could remain within the old arrangements, subject to the outcome of the separate work on the 2014 decision, or whether the institutions would seek to eject us from Eurojust and we would need to seek alternate co-operation arrangements. Given that we do not expect to have sight of the final text much before the middle of 2015, it is hard to speculate on the final outcome, particularly in the light of the recent developments of the yellow card having been issued in relation to the measure for the EPPO. What I can reiterate is that we will work to get the text into a place where it is able to meet our significant concerns.

[Sir Alan Beith]

Over the considerable period in which the subject can be discussed, can we not seek allies among our fellow member states from those who recognise that different legal systems with different distributions of powers within them must be recognised by any EU-wide arrangement and that the text should therefore be changed?

[James Brokenshire]

I am grateful to my right hon. Friend for his contribution and I know that he was consistent on that point during our debate on subsidiarity last week. That view has been expressed by a large number of national Parliaments across the EU and it is now for the Commission to reflect on that message in the context of subsidiarity and on whether there are more appropriate ways, as we would argue, to deal with the issue of combating fraud in the EU.

As I have already said, Ireland has announced its intention not to exercise its opt-in to the new Eurojust proposal at the start of negotiations and, of course, Denmark cannot participate in post-Lisbon justice and home affairs measures such as this. All member states have a shared interest in ensuring that the final proposals work with all member states’ criminal justice systems, as my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) has said, rather than adopting the Commission’s unworkable one-size-fits-all approach.

Let me conclude by making clear our commitment to the current Eurojust arrangements and our intention to negotiate to protect those arrangements, and our view that as the proposal stands it poses too high a risk to our criminal justice systems to opt in at this stage. Today’s motion is in the national interest and I urge the House to support it.

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[Diana Johnson]

I think that I made it very clear to the hon. Gentleman that we will not be opposing the motion this evening, but we have questions on what the Government have been doing up to now to ensure that this is not the only avenue open to them, and whether we might have been able to get some agreement before we ended up where we are today. Our major concern remains that the Government seem to have been prepared to allow the rest of Europe to go along without us, and instead of working for reforms that protect the rights of the UK they are allowing the rest of the European Union to set up an agreement that works for it and then saying, “We’ll make a decision later.”

I have a few questions I would like the Minister to respond to, either in his winding-up speech or in writing. What work is being done to look at how a national member could be appointed for the UK? Is there any mileage in that proposal? Will the Minister confirm the timetable? According to the European Scrutiny Committee, the deadline is 21 November, but the Minister has suggested, both in written evidence to the Committee and in the House, that the Government will wait until at least 2014, possibly later. Does the deadline of 21 November still stand?

Will the Minister clearly confirm the Government’s position on the current Eurojust arrangements? It is a little disconcerting that the motion does not contain a commitment to maintain the current arrangements and agreements, even though the Home Secretary indicated to the Home Affairs Committee that that is the Government’s desired outcome. Is that correct?

[James Brokenshire]

I am happy to clarify that the existing Eurojust measure was on the list of 35 measures that we would seek to opt back into following the exercise of our block opt-out. Obviously, they are being analysed by the relevant Select Committees, so we will await their determination before taking further action.

[Diana Johnson]

I am grateful to the Minister for that clarification.

When did the Government actually get around to raising concerns about the structure of Eurojust and the EPPO at EU level? Those concerns are set out in a memorandum dated 7 August 2013, but surely the Government’s efforts to secure a better outcome began before that. The Government had various chances to discuss Eurojust’s future with the Commission, so did they raise those concerns?

For example, a strategic seminar entitled, “Eurojust and the Lisbon treaty: Toward more effective action”, was held in Bruges in September 2010. Did the Government raise then any of the concerns that they are raising now? There was another opportunity to discuss Eurojust’s future at an event marking its 10th anniversary at the European Council in February 2012. A Eurojust and Academy of European Law conference called “Ten years of Eurojust: Operational Achievements and Future Challenges” was held at The Hague in November 2012. Were the concerns raised then?

On 18 October 2012, the Commission consulted member state experts and others about a possible reform of Eurojust. According to the Commission:

“The meeting generally supported improving Eurojust’s governance structure and efficiency.”

What did the UK representatives say at that meeting? The Commission then instigated a consultation on the strengthening of Eurojust. What issues did the Government raise?

What improvements to Eurojust have the Government been pushing for? We all support more effective co-operation on cross-border action against serious crime and it would be helpful to know what work the UK Government have been doing to lead that agenda at European level. It would be good to see the UK setting the agenda, as was the case under the previous Government, rather than watching what happens and complaining when it does not reflect the specific interests of the UK.

Finally, on the justice and home affairs opt-out in general, the Government have found time tonight, as they did last week, for a debate on the Floor of the House, which is to be welcomed. On both occasions, the Government have raised the issue of the opt-out, which is widely supported with regard to the EPPO, but other, more controversial areas of it also warrant proper discussion. As the Minister has said, we are waiting for various Select Committees to publish reports. Will he reiterate the Government’s assurances that time will be made available for a full debate on those reports on the Floor of the House?

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

This motion must be considered in the context of the EU’s wider ambitions for a single policy on justice and home affairs. As mentioned earlier, the EU Justice Commissioner and vice-president, Viviane Reding, has a huge stake in this matter, and in a far-reaching speech last month she spoke about the considerable momentum towards developing a pan-European criminal code and institutions, replete with a European justice Minister—I dare say Ms Reding has a candidate in mind—and with detailed monitoring and sanctioning powers at Commission level. Those include new powers to uphold EU fundamental rights—a sort of triplication of the human rights legal framework, bearing in mind Strasbourg’s role in the Human Rights Act 1998 and UK jurisdiction, and an expanded role for the European Court of Justice. That is the clear ambition within the Commission and the broader EU. With that in mind, this is also a critical juncture for Britain. We remain poised to exercise our crime and policing opt-out under the Lisbon treaty. It is therefore the right moment—an important crossroads, perhaps—to think strategically about Britain’s criminal justice co-operation in the EU.

On the specifics of the motion, I fully support the Government’s intention not to be part of the European public prosecutor’s office. That initiative is obviously—transparently—a preliminary stepping stone towards a much more far-reaching EU prosecutor, and it must be nipped in the bud. Although it is limited, at least on the surface, to countering fraud against the EU, under current terms the EPPO would take powers away from Eurojust. It would have the power to compel UK police to hand over evidence, and to order UK prosecutors to take action. Through its relationship with Eurojust, it could place wider burdens of co-operation on member states. The scope of those obligations will, of course, be decided by the Commission, and ultimately by the European Court. As the Minister has said, we must stay out of such a measure. I welcome the Government’s decision and the Minister’s clarity of purpose and position.

We ought to emphasise the positive and we should preserve and retain our national criminal justice system. That system is steeped in a very different tradition from the civil, continental tradition, and in a different set of values. As hon. Members have already said, it is also steeped in a different functional division of law enforcement powers that enshrines a uniquely British conception of justice—one that is firm but fair.

The Eurojust regulation is a more finely balanced question. I worked in The Hague and with Eurojust, which has done important work in recent years serving as a college of co-operating national prosecutors. Personally, as the Minister has said, I would prefer it to have continued down that route and in its current form, but the new regulation gives the Commission a seat on a new executive board and places a duty on Eurojust to forge a special relationship with the EPPO. It also imposes additional stronger duties of information sharing on member states, including the UK if it signs up.

The EU Select Committee has highlighted the new powers given to representatives at Eurojust to bypass national authorities in order to process requests for sharing information or evidence, and I pay tribute to its excellent work. Again, all that would be interpreted and enforced by the Commission and the European Court, while increasing our contribution to the EU budget. I note that the Minister and the Government share those concerns and do not intend to opt in at this time. However, they leave open the prospect of “active consideration” of the case for opting in when the final text is agreed.

The Opposition position on this matter is totally hopeless. They recognise the defects in the regulation and accept the motion that the Government have put before the House. They know the Government are actively resisting the supranational elements and creeping supranational character that some seek to impose on Eurojust, yet they criticise the Government for not being in the negotiation now. Such negotiation would, of course, mean that we were irreversibly tied in to the new regime if it cannot be changed. That is utterly untenable and the kind of thing one hears only from the Opposition.

If hon. Members want to be churlish, they might question why the Government are rightly critical of the proposals, yet rather more enthusiastic about them for the future. I am not sure why that is, but I will limit myself to seeking confirmation from the Minister that the House will have an opportunity to debate and vote in advance of any later decision.

[James Brokenshire]

I am happy to assure my hon. Friend that, if there were a subsequent recommendation to opt back in on the final approved text, I would envisage the process we are going through tonight being replicated. I can confirm to him that we are keeping the option open to opt back in at that later stage precisely for the operational reasons to which he alludes—the benefits of Eurojust as it is currently constructed.

[Mr Raab]

I thank the Minister for setting out the Government’s position with admirable clarity.

Given that we are discussing the substance of Eurojust and its evolution, I want to take this opportunity to ask more broadly what strategic thinking has been done on our wider future justice and home affairs relationship. What consultations has the UK had with the Commission and other member states on renegotiating Britain’s wider relationship with the EU in that critical area? It is right to assess each regulation or measure case by case, on its individual merits and substance, in a sober and pragmatic way—the Minister has done that cogently this evening—but, at the same time, we need to look to the bigger picture and the longer-term horizon.

I worry that we will drift into a disjointed, albeit bespoke, relationship with Eurojust and the wider JHA framework almost by default, annoying our European partners without satisfying our national interest, risking the worst of all worlds. Would it not be better to grasp the nettle and spell out proactively, on the front foot, what strategic JHA relationship we want, and why that will serve the EU’s interest as well as the British national interest? In my view, that means a British commitment to be a good operational partner, with all the resources, know-how and expertise we bring to the game, but without sacrificing democratic control over such a sensitive area of national policy. It means saying to our European friends that our co-operation within Eurojust will improve operationally as trust and confidence develop, but that we cannot accept any further transfers of authority or control to the supranational level.

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[James Brokenshire]

We have had a full and lively debate, characterised in customary fashion by the contribution of my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). He, like others, set out a number of the significant concerns that are held not only by the Government, but by Members across the House about the Commission’s proposals for a European public prosecutor’s office and the construction of Eurojust.

This country derives real benefits from its participation in the current Eurojust, which is about practical co-operation; from collaboration; and from the number of cases that have been assisted by the establishment of joint investigation teams. But that does not mean that we should now opt in to a new measure that is clearly so fundamentally flawed because of the intrinsic link to the European public prosecutor’s office. Some of these significant issues have been highlighted in the impact they would have on our criminal justice system.

The hon. Member for Kingston upon Hull North (Diana Johnson) was critical of the system of the block opt-out and of having to opt out and then opt in before dealing with new EU measures such as those we are debating this evening. This was precisely the structure that her Government negotiated. If she is unhappy with this system, she needs to look to herself and to her hon. Friends who were party to the construction of the mechanism.

The hon. Lady highlighted and questioned the date of 21 November. I can say very simply that that is the latest date on which the UK would be able to exercise its opt in. It is three months from the publication of the last language version of the relevant regulation, which is the time period referred to. She also highlighted some concerns about fundamental rights. I draw her attention to the explanatory memorandum, which was signed by the Minister for Immigration on 7 August and sets out the fundamental rights analysis. That will explain to her the issues she highlighted.

Questions have been raised about the national member. Indeed, the hon. Lady asked whether we should negotiate a better position for the national member, and whether the Government would express their concern in respect of Eurojust and the European public prosecutor’s office. She mentioned the 10th anniversary of Eurojust. I was there and made those very points at that time. Indeed, one of the first things that I said at the first Justice and Home Affairs Council I attended following the election of this Government was that we would not participate in the European public prosecutor’s office. I can therefore assure her that we have consistently made our views plain on the lack of a need for a European public prosecutor’s office. We believe that there are more practical ways of dealing with these issues.

The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) talked about the separation of powers. That is intrinsic to the question. My hon. Friend the Member for Esher and Walton (Mr Raab) made a point about how supranational organisations cut across the fundamental building blocks in our criminal justice system. That is why it is right that, if the House approves the motion tonight, we will not be opting in to the measures.

We note that the various Committees will be publishing their reports on the block opt-out, and we look forward to receiving them. The Government have committed to holding a further debate in the House on the final proposals for opting back in, in respect of the 2014 block opt-out. Further work is taking place on the balance of competences, and it will continue. My hon. Friend the Member for Esher and Walton talked about where competence should lie, and that question is informed by the ongoing work. We are taking evidence to inform the broader debate, but that should be seen as distinct from the exercise of the Government’s treaty right in respect of the 2014 decision.

My hon. Friend the Member for Daventry (Chris Heaton-Harris) mentioned the position of OLAF, the European fraud office. It is unfortunate that we have only recently seen proposals on the practical use of that office, but we believe that certain practical steps should be pursued as a result of their recent publication. My hon. Friend the Member for North East Somerset mentioned issues of competence, and the need for us to look carefully at any final agreed text that emerges in relation to Eurojust.

Given the yellow card that has been issued in relation to the European public prosecutor’s office, and the strong message that has been sent by a number of member states’ Parliaments in respect of this proposal, the Commission will need to reflect on this matter very carefully. It will also need to think about the Eurojust proposal, because of the interrelationship between the two. We will keep the House and the Select Committees updated as this matter progresses, but I very much hope that, in the light of the clear message from hon. Members tonight, the House will support the motion.

Question put and agreed to.

Resolved,

That this House takes note of European Union Documents No. 12566/13, a draft Regulation on the European Union Agency for Criminal Justice Co-operation (Eurojust), and No. 12558/13 and Addenda 1 and 2, a draft Regulation on the establishment of a European Public Prosecutor’s Office (EPPO); agrees with the Government that the UK should not opt in to the draft Regulation on the Eurojust at this time and should conduct a thorough review of the final agreed text to inform active consideration of opting into the Eurojust Regulation, post adoption, in consultation with Parliament; and further agrees with the Government that the UK should not participate in the establishment of any European Public Prosecutor’s Office.