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Mr. Jenkin: At risk of revisiting old debates, subsidiarity is of course a double-edged sword. I have frequently seen subsidiarity prayed in aid by the Commission as a means of centralising power. It has argued that subsidiarity demands that power be exercised at the lowest possible level, which it concludes is at the centre. Thus it was argued that air traffic control, for example, should be centralised on grounds of subsidiarity.

Mr. Cash: I am delighted to hear that, but my hon. Friend has to be a bit careful here because subsidiarity is a theological concept, which was actually created or invented by the Jesuits. I was educated by the Jesuits, so I know all about this— [Interruption.] The principle regarding theology and hierarchy was exactly as my hon. Friend suggested. The whole object of the exercise was to demonstrate that whereas people should be allowed to lead their own lives in their own fashion at a certain level, they had to obey the highest level of the highest hierarchy, which is, of course, the Vatican from where the Pope speaks ex cathedra. It will not surprise anyone if I make an immediate analogy: just as subsidiarity leads to centralisation of decisions ex cathedra from the Vatican in the theological sense, so it will lead ex cathedra to what is decided by the European Court of Justice and the European Union. That is what it is all about.

Article 61C concerns the implementation of new measures to evaluate policies in areas of freedom, security and justice. Again, it requires the application of those provisions by qualified majority voting, and again it refers to member states being required

—that wonderful word “collaboration”, with its resonances of the 1940s—to


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In relation to justice, article 61G states that the Council will

on police and judicial co-operation measures. That is another provision which, although I have not time to go into it in detail, raises serious points of objection. As for fighting cross-border crime, a European Union security committee will be set up to co-ordinate—that famous word—national police, customs and civil protection authorities. Apparently, it is proposed that the committee should focus on internal security. I regard that as, potentially, an extremely dangerous co-ordinating operation in the context of internal security and, no doubt, surveillance and all the other powers that will be involved.

As I said in an intervention yesterday, one of the things that worry me is that in the space of one or two lines in the treaty, we are legislating to require the people of this country to implement the law under sections 2 and 3 of the European Communities Act 1972, thus creating through a few lines and truncated proceedings the equivalent of many Bills which would normally undergo all their procedures in both Houses of Parliament. That is utterly outrageous.

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Member states will be expected to surrender legislative initiative on border checks, asylum and immigration and judicial co-operation in civil matters.

Mr. Bone: One of the Government’s arguments for accepting this part of the treaty was that it would help to solve the problem of human trafficking, but our problem in this country is that we do not have secure borders to stop trafficking. From what my hon. Friend has said, it seems that the situation will get worse under the treaty, not better.

Mr. Cash: That is one of the reasons why so many of us believe that the European Union does not work. It is full of good thoughts, in the sense that the aim is to improve things. It is motherhood and apple pie. But when we examine the bottom line and the nuts and bolts—which is what Committee proceedings are supposed to be all about—one argument after another must confront the question of whether or not it will work. Is it right for this legislation to become part of our law and, through the European Communities Act, be imposed on the people whom we represent?

We simply would not put up with it if a Bill were introduced that contained three lines that simply stated that its contents would be an obligation on our constituents. There would be riots in the streets. The fact is, however, that that is exactly what is happening. I am not exaggerating when I say that: it is here on the pieces of paper that we are discussing. In a matter of a few lines, we are legislating and imposing obligations on our constituents. I fear they are not properly informed of that, because the best way in which to keep a secret is to make a speech in the House of Commons. They do not know what is going on, which is why I have repeatedly urged all my colleagues, and my party, to get out there and explain these matters with conviction and passion. If we do not do so, the people will not know what is going on and they will regret that later.

There is another provision defining certain criminal offences and minimum rules that would override United Kingdom criminal laws and sentencing procedures: article 69B. Again, I will not go into the detail on that. Article 69C addresses interfering in crime prevention beyond existing cross-border measures. Under the provisions relating to Eurojust in article 69D, the British judiciary will be required to submit to Eurojust interference in criminal investigations and there will be massive interventions in prosecuting serious crime.

Every aspect of the treaty requires detailed analysis, which we simply cannot give it tonight. The creation of the European public prosecutor has already been mentioned.

Mr. Graham Brady (Altrincham and Sale, West) (Con): On article 69D, my hon. Friend spoke earlier about the occasionally sloppy language used, but it is sometimes interesting when the language is deliberately different. We had an exchange earlier about the role of the European public prosecutor’s office, which could only exercise the functions of the prosecutor in the competent courts of the member states in relation to certain offences, whereas in relation to Eurojust the provisions make it clear that there is scope for

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There is a distinct difference: one body can operate independently of national authorities, whereas the other apparently cannot.

Mr. Cash: I absolutely agree. My hon. Friend is a former shadow Europe Minister and he knows in detail about such matters, and I am grateful to him for drawing our attention to that provision.

Amendment No. 137 addresses policing. It is stated that EU policing measures will eventually be reached through enhanced co-operation. The number of such enhanced co-operation provisions has grown over time, as there is a notion that it does not really matter if member states are not in complete agreement about proposals because if enough states come together to create momentum, that will start off the process. The theory is that several member states agree to come together and then the others will be forced to join in later, because they will find that they have been outflanked as a result of the provision having been initiated by the member states who originally signed up to it.

These measures will affect police co-operation. I hear what some say about the fact that we will not have one uniform police system throughout Europe, but I see every indication of creeping competences in many different fields, which will carry with them issues to do with burden of proof and whether an arrested person will be given adequate opportunity to be heard. We know that brutality takes place in some police services elsewhere in Europe. Our system might not be perfect, but I would be a lot more comfortable if I thought my constituents were being legislated for by this House in a properly measured fashion. There is currently a great deal of argument in this country about whether it should be allowed for people to be held for 28 days or a different period. All I can say is that, in this particular context, the idea of giving increasing powers to a European police force to co-ordinate, organise and undertake investigations carries very serious dangers.

There are many other matters that I would like to discuss, but there simply is not the time to do so, as I know other Members want to speak. I tabled these amendments not as a point of hostility but as a point of clarity, and that is why I believe they enjoy a measure of support. I say that to my Front-Bench team as well as to other colleagues. It is essential that we legislate properly in this House. It is perfectly clear that the provisions that I have only been able to touch on in the limited time available should be left out of this treaty. They also make it clear that this treaty should be abandoned and put in the rubbish dump.

Mr. Malins: I shall be brief, because other colleagues wish to speak. I want to discuss criminal justice and court matters, so as I have to, I declare my interest as a Crown court recorder and part-time district judge.

We should be very proud of certain aspects of our criminal justice system. I am very proud that the criminal law in this country is made by this Parliament and by elected Members of Parliament who are accountable to their constituents if they get it wrong. I am proud of the fact that over centuries the common law has developed
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in this country. It has been developed by independent judges who are not afraid to take on the Executive from time to time. I am proud of the fact that when a citizen of this country walks down their high street, the police have limited rights. The police are individuals merely with a warrant, and they cannot step over the mark; if they do so, they are in difficulty.

I am proud of the fact that when a person is arrested their rights continue. I am talking about their right to bail; their right to a fair trial; perhaps their right to go before three magistrates in the town in which they live; their right to go before a jury—12 persons chosen at random from the community; and their right to have an independent judge begin his or her summing up by saying to the jury, “Members of the jury, in this case the burden of proof lies on the prosecution throughout and not on the defence, and it is a high standard of proof.”

I am also proud of the fact that in this country there are rights to legal aid and to appeal. There is so much in our current legal system that we have developed over hundreds of years. We are custodians of those rights and we throw them away at our peril. What are we faced with tonight? We can talk about subsidiarity, but I have never really understood that word and I do not think I understand it tonight. We are faced with the prospect of a sea change in our criminal justice system. We are faced with changes that will not happen tomorrow and which may not happen next year or in four or five years’ time, but if we are not ever so careful and if we do not guard these rights, the changes may happen in 10, 20 or 30 years’ time, and we should be ashamed tonight if we let them develop.

What could such changes be? Could there be a European public prosecutor? What absolute rubbish that would be. Could there be a European police force, Eurojust or Europol? What the devil do all those words mean? Who can convince me that any of this is better than what we have at the moment in this country? What sort of legal system would we have? It may be codified, but by whom? It would not be codified by people elected to this House. It would be an EU codified legal system. What might it do? It would mean saying goodbye to the jury system. All that could happen, and if it did, it would be arranged by people who are not accountable and who are not elected by the electors in my constituency or anywhere else.

Let us recognise tonight that we are debating issues of the greatest importance. We are left at the moment with a system in this country of which we are proud. It needs changing now and again, but we change it. It remains a system of which we are fundamentally proud because it recognises the right of the individual to a fair trial in a UK court under laws passed by a UK Parliament. That is what we have, and if anybody asks me whether we should begin to throw it out, I say that they would be mad and wrong to do so.

Philip Davies: My hon. Friend is making, as usual, a powerful point. He mentioned our ability to address deficiencies in our system, but does he agree that if we were to adopt the provisions in the treaty and were not satisfied with the way in which they were working, we could do nothing about that? We would be lumbered with them for the rest of time, because we would not be able to repeal any of the provisions in the treaty.

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Mr. Malins: That could well happen, whereas at the moment, these matters are in our hands. If we get something wrong, we can change it. If the voters do not like what we do, they can change us. Goodness knows, the gap between the voter and the elected Member of Parliament is wide enough, without widening it further.

I have spoken for four minutes, and that is long enough. I shall stop speaking, but I must make it clear that I feel very strongly that we should not give away what has served us so well for so long to a system that will be more damaging to the individual than is imaginable.

Mr. Jenkin: I, too, shall be brief.

The exclusions included in the amendments are very important, for a reason that has not yet been mentioned. I hope that the exclusions will be effective in addressing the problem that I shall describe to the Committee—the way in which the justice and home affairs provisions interact with article 188(l), a new provision that states:

The importance of that provision is that the European Union already concludes international agreements with third countries on matters that are clearly within its competence, such as vehicle homologation, or the standardisation of road vehicles. The reason why the European Union cannot agree extradition treaties with third countries is that extradition is not included in the main part of the treaty, but that will change as we bring justice and home affairs into the purview of the treaties.

We already have, for example, a common arrest warrant, which is at present a third pillar agreement between the member states. Under this treaty, that will become part of the main body of European community law. That means that the European Union will acquire the competence to agree an international agreement, as a nation state would agree an international agreement, with other nation states on the matter of extradition. Effectively, we would progressively lose from our national jurisdiction the right to agree extradition treaties.

Mr. Mark Harper (Forest of Dean) (Con): We will also lose another powerful tool—the ability to hold people to account for the quality of their negotiation. Other hon. Members have mentioned the appalling job that the Government did in negotiating the extradition treaty with the United States. If the European Union did that, we could not change the people who had made a poor job of it. At least we can do that with this Government.

Mr. Jenkin: I am wary of highlighting the deficiency of present agreements, because people will no doubt claim that we would be much more effective if we were all negotiating as one country. However, let us take for example the trade negotiations and the world trade agreement. Provisions that will be very damaging for
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some of the poorest countries in the world are being agreed through the Doha trade round and the imposition of economic partnership agreements on African countries that are losing their special status, which stretches back through history, with European countries. We could see similar agreements on extradition being agreed with third countries that are not in the interests of this country.

In fact, we enjoy special arrangements on extradition with a great many countries. We stand to lose those special arrangements under these provisions, and I ask the Minister to confirm in his winding-up speech whether I am right or wrong. With the inclusion of these provisions on justice and home affairs in the main body of the treaty, in conjunction with article 188L— [ Interruption ]and, of course, with the addition of legal personality, as my hon. Friend the Member for Stone (Mr. Cash) says from a sedentary position, will we lose control of extradition if the EU chooses to exercise that competence?

I make a further point about article 188L. Decisions under article 188L are, of course, made by qualified majority voting. So, whereas the arrangement for extradition agreements in the EU is a unanimity provision at the moment, we are effectively conceding to the EU qualified majority voting on extradition. That amounts to an extra concession of qualified majority voting. Moreover, I must point out that, whatever is agreed internationally by the EU by qualified majority voting automatically becomes an exclusive competence of the EU that is enforceable through the European Court of Justice and therefore binding directly on member states. I am looking at my hon. Friend the Member for Beaconsfield (Mr. Grieve) on this matter, and I hope that he is nodding in full agreement.

Mr. Grieve: I think that I am nodding in full agreement. Uncertainty surrounds the way in which the clause will be interpreted, which gives me cause for considerable concern. It is clear that we have the opt-outs in the domestic context; but, equally, it is clear that we do not have them in respect of EU international relations, which my hon. Friend is highlighting. It will be for the Minister to clarify whether, in fact, if there were an impact on areas where we had opt-ins and opt-outs on EU international relations, we would find ourselves subject to qualified majority voting on them.

Mr. Jenkin: Of course, and at risk of extending my comments by a mere extra minute, I may say that my hon. Friend has raised an extremely interesting issue, and we need an assurance from the Minister. He should give us an absolutely categorical guarantee that this red line will hold and that, where we are not opted into a justice and home affairs provision, there will be no question of the EU concluding an agreement with a third country on behalf of the Union by a qualified majority vote that would, therefore, take into its purview, by direct effect internally, control over that policy, thus removing it from the British Government. I do not think that he can give that assurance, because in the end, as usual, we are in the hands of the European Court of Justice.

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