Eurojust and the European Public Prosecutor’s Office

Lord Beith Excerpts

Tuesday 29th October 2013 Commons Chamber

[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.

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

I agree with the hon. Member for Kingston upon Hull North (Diana Johnson) on one point and disagree with her on another. I agree that there should be a debate on the Floor of the House when the three Select Committees publish their reports. They will provide important guidance to the Government in their negotiations. Where I disagree with her is that it is not sufficient for her to say, “Even if it were true, I would not have started from here.” The question still has to be asked whether the Labour party would, if it had had the opportunity, have opted in to the Eurojust proposal or not. She conspicuously failed to answer that question, except in a way that suggested that she had been given a narrow mandate by somebody in authority in the Labour party.

I start from the proposition that Eurojust is essential and that the European public prosecutor most certainly is not. For the one to get in the way of the other is harmful. Anyone who looked at the documentation for this debate and the excellent work of the European Scrutiny Committee would readily concede that there are many complexities to this matter. However, at its heart, there is a simple issue, which is that whereas cross-border crime requires an effective apparatus that takes advantage of our being in the European Union—we want to maintain those arrangements and it would be greatly contrary to Britain’s interests not to be part of them—the creation of the European public prosecutor is neither necessary nor, in the opinion of many of us, even desirable. That it should stand in the way of British participation and the participation of other countries in Eurojust is seriously harmful.

There are two ways in which the situation that we are confronted with creates difficulties for any British Government, of whatever party political composition. The first is that the proposals on the European public prosecutor and on Eurojust are interlocking. The draft directive on Eurojust incorporates the European public prosecutor so extensively that it makes the position of a state that wants one and not the other very difficult.

The second is that the mandatory powers that are given to national members of Eurojust fly in the face of arrangements in the United Kingdom. Of course, the arrangements throughout the United Kingdom are not uniform. The arrangements in England, Wales and Northern Ireland are quite different from those in Scotland. In Scotland, the Lord Advocate and the procurator fiscal can direct investigations. There is a clear separation between investigation and prosecution in England, Wales and Northern Ireland. Those differences need to be respected. If we can respect those differences in the United Kingdom, surely the European Union can respect the fact that the same objectives can be achieved by different legal systems.

[Jim Shannon (Strangford) (DUP)]

Does the right hon. Gentleman share the concern of many in this House, including the Minister, over the data that are collected by the Commission, which show that the conviction rate in the UK is 23%, when in reality it is about 75%? The data that the Commission collects centrally go against what we are trying to do.

[Sir Alan Beith]

There are many dangers in playing with those statistics. Not least, the objective of a 100% conviction rate seems to undervalue the ability of the court to determine that evidence is not sufficient to support conviction and punishment. We expect our courts to throw out cases that do not have a sound evidential basis. The whole statistical exercise is potentially dangerous and misleading.

I speak for the Liberal Democrats, rather than for the Justice Committee, because, oddly enough, this is a home affairs power rather than a justice power, and there is no doubt that we want to be in Eurojust. We do not want Eurojust to be complicated by the wholly different proposal for a European public prosecutor, and we do not want Britain’s participation to be impaired in any way.

The motion is carefully worded. It asserts 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”.

That wording is most ingeniously crafted. What I want it to mean is that we will make substantial efforts to ensure that we get a Eurojust regulation that meets our needs and those of a number of other member states that share our concerns and that can be allies in putting this matter right, so that there can be no doubt about our future co-operation in these arrangements, which greatly assist us in dealing with cross-border crime and catching up with fleeing criminals who dodge around the nations of Europe. That is of immense importance to us. I look forward to the Government’s active involvement in trying to get the Eurojust proposal right so that we can opt in to it in due course.

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[Chris Heaton-Harris (Daventry) (Con)]

It is a pleasure to speak in this debate and to follow my hon. Friend the Member for Esher and Walton (Mr Raab). His arguments were well put and I completely agree with them. I will try not to copy him too much, but he nailed the point that this measure is completely tied to the European public prosecutor’s office. It is a building block of it, and a morphing of what Eurojust was originally set up to do, taking it much further than any of us in this House would like.

In last week’s debate, we did not get to the issue of what exactly the European public prosecutor’s office is, probably because the Minister asked us not to stray into that territory. According to the European Union, the European public prosecutor’s office will be a

“prosecution office of the European Union with exclusive competence for investigating, prosecuting and bringing to judgment crimes against the EU budget.”

Those last few words are the most important.

For the best part of two decades, the European Commission’s budget has not received a positive statement of assurance from the European Court of Auditors. A lot of money is wasted in maladministration, but a large sum also disappears through fraud, which has caused consternation in some circles for some time. People have, in the past, blown the whistle on areas where money has been filtered away illegally. The problem goes back to before 1999. Those of us who were involved in European affairs back then will remember that the Jacques Santer Commission fell in 1999 because of a scandal involving a failure to chase down fraud, and the ignoring of whistleblowers and internal fraud. When the Commission fell, there was marked panic in European circles and a committee of independent experts was set up. That reported in March 1999 and again in September 1999 after the European elections of that year.

Before 1999, there was an anti-fraud organisation in the European Commission called UCLAF, which after 1999 morphed into a similar anti-fraud organisation called OLAF. Its job was to chase down fraud, both internal and external, and to protect the financial interests of communities in and across the European Union. It was a simple transfer of powers from UCLAF to OLAF—alas, several members of staff also made the transfer—but OLAF did not really succeed in doing its job of chasing fraud for some time. Indeed, it tended to chase whistleblowers before it actually chased fraudsters who chose to defraud the European Union.

All the time, the fraud figures for the European Union kept climbing. Some say it was as high as €500 million, although some would say it was even more. The question for this debate is why the big leap from having an anti-fraud office, which already has the powers to do the job within the context of the existing treaties, to something that would take a huge amount of powers away from member states. Why the huge powergrab?

Alongside the proposal for a European public prosecutor’s office, the Commission has also published a communication on its ideas for OLAF in the future. It plans to table legislative proposals to alter the OLAF regulation in due course. As it happens, the Council and the European Parliament have only just agreed a revision to the 1999 OLAF regulation, which has been more than 10 years in the making. A key aim of that is to strengthen OLAF, the anti-fraud office of the European Union, and its investigative capabilities, and also to provide greater safeguards for those being investigated. The Commission’s proposals for the European public prosecutor’s office, however, would entail OLAF losing the powers to conduct investigations into fraud against the EU budget and being limited to investigations on other irregularities involving EU funds and misconduct or crimes committed by EU personnel that do not have a financial impact. It is gutting powers, which the European public prosecutor would use, from an existing body, because it wants an EPPO with more powers. It is the precursor to this area of criminal justice that my hon. Friend the Member for Esher and Walton talked about. The European Scrutiny Committee, of which I am a member, noted the proposal to amend OLAF regulation and concluded:

“We are disappointed to see that so soon after reform of OLAF’s regulatory framework has been agreed, the Commission, without waiting to see the impact of that reform, is suggesting further legislation including the creation of an EPPO. The Commission refers to this pre-emptive approach to policy-making and legislative reform somewhat euphemistically as ‘step-by-step’ when it seems more like leaps and bounds.”

This is a case of leaps and bounds. We would have to change a number of things that we hold dear in our common law system. We have no arrest without evidence. The European public prosecutor will operate under a system of corpus juris, so that one can be arrested without evidence. We do not hold suspects for more than a fixed and limited time unless charges are presented in open court. Under corpus juris, a person can be held indefinitely. In our system, we believe we have the right to face one’s accuser and see evidence. Under corpus juris, the accuser may be anonymous and no right for the accused to see the evidence exists. We like to be tried by lay magistrates in most cases, have the right to trial of a jury of one’s peers and have an adversarial model. That is not the case under corpus juris, where a person is tried by professional judges, there is no right to trial by jury and there is an inquisitorial model. We like an open court. It is a closed court under corpus juris. We like the presumption of innocence until proven guilty.

[Sir Alan Beith]

The phrase corpus juris is rather misleading—all it means is “body of law”. The hon. Gentleman is right to point out that our system is different and provides safeguards in a different way, but it would be foolish if we were to look at the rest of Europe and say that they do not have any rights because their system of enshrining them is different from ours.

[Chris Heaton-Harris]

I fully accept that fact. I am just trying to outline what this big change would mean when, according to the European Commission’s figures, it is just—it is a big sum—meant to protect €500 million-worth of fraud against the EU budget. Is this a proportionate change that we would like to see? I would argue that it is not.

Various people have come forward with individual cases regarding the difference between how the system operates now and how it would operate under a European public prosecutor. In one case, OLAF transferred information to the German and Bulgarian authorities relating to German and Bulgarian nationals who allegedly worked to defraud an EU agricultural and rural development fund scheme. Whereas the German proceedings led to a conviction, the proceedings in Bulgaria ended in acquittal—the current system led to different results in a cross-border case. The argument for a European public prosecutor is that it would have made a difference by ensuring consistency of investigation and prosecution in those countries, changing the nature of prosecution within a member state.

Another example relates to cigarette smuggling from the Czech Republic into Germany. The German criminal court used telephone tapping records obtained by the Czech police as evidence to convict the suspect. Although that evidence was obtained lawfully according to Czech law, the defence lawyer argued that without a court order authorising the telephone tapping, the evidence was inadmissible in the German court. It comes to a certain point when one wonders whether a supranational body such as the European public prosecutor could ask for the phone tapping of a British national on a matter that might not be deemed worthy of phone tapping in the UK.

This is a big step forward and we should note that it is all about a power grab from the European Commission, or a power grab from Viviane Reding, the European Commissioner for Justice. We should be very wary of where she goes from here. The hon. Member for Kingston upon Hull North (Diana Johnson) asked what discussions could be had, but having discussions with Viviane Reding can be very difficult, because she is completely focused on delivering an area of criminal justice for the EU. It is a ridiculous idea that cannot work, but were it to work, it would mean a complete change in how we do law in this country, and one that most of us in this place would fight to the death.