UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 605

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Justice Committee

Ministry of JUSTICE MEASURES IN THE

JHA block opt-out

Wednesday 16 October 2013

Rt Hon Chris Grayling MP and rebecca stimson

Evidence heard in Public Questions 1 - 38

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Oral Evidence

Taken before the Justice Committee

on Wednesday 16 October 2013

Members present:

Sir Alan Beith (Chair)

Steve Brine

Jeremy Corbyn

Nick de Bois

Gareth Johnson

Mr Elfyn Llwyd

Andy McDonald

Graham Stringer

________________

Examination of Witnesses

Witnesses: Rt Hon Chris Grayling MP, Lord Chancellor and Secretary of State for Justice, gave evidence. Rebecca Stimson, Deputy Director, International Policy, Ministry of Justice, was in attendance.

Q1 Chair: Welcome. You are getting used to attending other Committees on the first of the subjects we are going to discuss this morning-

Chris Grayling: There have been a few of those, yes, Sir Alan.

Chair:- European opt-outs.

We will divide the session into two parts and will move on to legal aid in the second part. At that stage we may have interests to declare but not at this stage.

You will know that the Committee was not much helped by the fact that we did not get the Government’s general intentions indicated to us back in February when we originally expected them, and, therefore, all the three Committees involved-or, including the Lords, four Committees-had to have a rather rushed operation in order to scrutinise and assist the Government in their thinking. That is water under the bridge, but it is part of the background to what has happened.

Chris Grayling: If I might say on that, Sir Alan, I regret that and I apologise to the Committee for that being the case. As you will understand, there are really three stages to this process. We have to sort out a common Government approach, we then have to agree that approach or vary it with Parliament, and then we have to negotiate with the Commission. It is difficult to move on to each of the next stages until you have completed the one before.

Q2 Chair: Of course the House expressed its concern on the process in an adverse vote for the Government. What discussions have actually taken place between the Government and the Commission over this period up to now?

Chris Grayling: In terms of detailed discussions about the list we have put forward, discussions have not taken place. Clearly, they are aware of what our proposed list is because they saw the announcement, the command paper and so forth at the time when we laid it before Parliament, but we have not had discussions with them about that list. There have been informal discussions over the months on an on-and-off basis, as there have been with other member states. There has been a lot of curiosity from other member states about opposition. I have had brief discussions with the Justice Commissioner; likewise the Home Secretary has had brief discussions with Cecilia Malmström, who is the Commissioner for her area. But there have been no substantive conversations.

It is very much our belief that we need to wait now. As I described that three-stage process, we are now at the point where Parliament is. We have tabled the Government’s considered position. Parliament is now studying that carefully. We are waiting for reports from all of the different Committees involved. We will not be starting substantive discussions with the Commission until the entire process is completed.

Q3 Chair: On more than one occasion, including before the Scrutiny Committee, you have set out your philosophical case as being that you do not want Britain to be part of a European justice system, but you do want Britain to be part of the fight against international crime. That is a neat formulation, but is it a real distinction?

Chris Grayling: In my view it is, and I think it is an important distinction. You have to understand what we are doing here, which I am sure you do, Sir Alan. What we are doing now is moving from the pre-Lisbon situation, where Justice and Home Affairs cooperation was done on an intergovernmental basis, to one where we are effectively handing over jurisdiction in perpetuity over these areas to the European Court of Justice. So these are areas where we will no longer have the final say. That is quite a big step to take. Therefore, it seems to me that we have to think very carefully about the way in which we take that step.

I have to say I was not always the greatest fan of the last Government, but I do think that their negotiation of the optout was enormously helpful to this country. I do not think there is any will in this country to Europeanise justice, and so they gave us the tools that we needed to ensure that we do not do that. We have exercised that post-Lisbon, but this is now the pre-Lisbon debate, as you know.

My belief is that there is an essential national interest in us fighting serious and organised crime across borders. We all know that it is a challenge, whether it is terrorism threats, drug gangs and the rest. We have looked very carefully-and the Home Secretary has looked particularly very carefully-at this. She has had extensive discussions with police bodies, SOCA and others who are involved in this battle to establish what measures, in her judgment, are essential in our national interest to be part of in order to continue to fight organised crime in the most effective possible way.

Alongside that, there are a number of measures here that are much more about Europeanising justice, and there is a very clear objective in the Commission to take more and more steps to create, basically, a single European justice area. The Commissioner made a speech recently where she talked about a single European Justice Minister. I do not believe that is right for this country; I do not believe it is what this country wants; I do not believe it is what the people of this country want. It is certainly not what the last Government wanted in terms of negotiating the optout and it is certainly not what this one wants.

It is never an exact science, but, broadly speaking, what we have done in that list of 35 is to identify measures that it is obviously in the national interest to be part of as part of the strategy of fighting serious and organised crime. But we do not want to be part of measures, for example, that set minimum standards for sentencing and take us down the road towards the creation of a European justice system. That, to me, has guided what we have done in the decisions that we have taken.

It is worth adding that there are a number of other measures that we have not included in our list that are either redundant or have little impact, where it is simply a question of, if we do not have to hand over jurisdiction and if there is no benefit in doing so, then why would we?

Q4 Chair: What do you say to those who say you are going to be subject to the European Court of Justice on a number of these areas and it is a creeping menace? Once you become subject to it in one area, in some way we will be trapped into a wider European justice system. Some people who have given us evidence have argued that case. What do you say to them?

Chris Grayling: There is certainly a desire in Brussels to move much further down the road towards the Europeanisation of justice. I do not want that to happen. I am very strongly opposed to it. It is the wrong thing for this country. I actually think it is the wrong thing for other member states as well, but we equally have to operate in the national interest. The Home Secretary, in her discussions with the police, identified a number of areas where, in her judgment, it was essential to international crime fighting to maintain cross-European arrangements. We have to accept that some things are just in our national interest to do. In the current paradigm, if we are going to be part of the European Union and if we are going to collaborate on international crime fighting, the Home Secretary’s judgment is that these are necessary measures.

There are one or two others that do not completely conform but which are just very obvious. If you take the prisoner transfer agreement, it does not quite conform to either of those two principles, but it is just very obvious to me that it is something that is in our national interest to be part of. I do not believe in minimum standards measures that set minimum penalties. I am very wary of measures that start to establish legal principles, unless there is an obvious benefit to our citizens. In some of the areas we are seeing now, I see this as being a route towards much greater Europeanisation and it has to be resisted at all costs because that is not where this country needs to be.

Q5 Steve Brine: Good morning, Lord Chancellor. Thank you for coming back. I just wanted to touch, if I may, on the framework decision in respect of prison transfers and prisoners. You say that it will be a no brainer not to opt in to this one. By the end of March this year, there were 4,058 foreign prisoners in our system in UK prisons. Do we know how many of them have more than six months to serve on their sentences and therefore would be eligible for transfer under the framework decision?

Chris Grayling: It is a smaller number. At the moment, if I remember rightly, it is about 1,400 that are potentially available for transfer. I will have to check. It is around 1,400.

Steve Brine: So that is the pool-

Chris Grayling: That is the pool we are working with.

Q6 Steve Brine: I notice in the notes it says that "prisoners’ consent is not required, although they may make representations against transfer," which rings alarm bells with me. What does that actually mean in practice, Lord Chancellor?

Chris Grayling: It means the system is not as tight as I would wish it to be. It is as set out in the original measure itself-that prisoners do have a right to object to their transfer. We also have to go through a deportation process; so we deport them and then they are released. They cannot come straight back again. This is a system that has just been bedded down. Now we are beginning to make transfers under the agreement. Not all member states have implemented it yet. Some of our bigger partners, such as Poland for example, will not be part of it until 2016. This is the kind of mechanism we will want to have in place. The ability to move prisoners from other parts of Europe out of our jails as soon as we can is one that is advantageous to us. As you rightly say, we have short-sentenced prisoners. We also have a large block of prisoners from outside the EU, but I want to see a steady reduction in the number of foreign national prisoners in our jails, and a sensible measure that enables us to do that is clearly something we would wish to be part of. I might like a more streamlined process and less discretion, but, equally, there is a balance to be had to it.

Q7 Steve Brine: Yes. Although you say it is advantageous for us to do so, is it imperative for us to do so purely from a capacity issue in the UK’s prisons?

Chris Grayling: If we are going to combine budget reductions over the medium term, which I hope will not happen but I would not want to be unprepared for it, we will need to reduce the burdens on our criminal justice system. There are two obvious ways of doing that. One is for the rehabilitation reforms to have an impact and to reduce the number of people who are reoffending and going round and round the system. The other is to reduce the number of foreign national offenders. Even those 1,400 people who are eligible for transfer probably represent three prisons between them, so it is clearly advantageous if we can. There are UK prisoners in jails elsewhere, but there are more foreign national offenders in our prisons than there are UK prisoners in jails elsewhere. My judgment is that this is an obviously advantageous thing to be part of. It is not an area where I see great sovereignty concerns. It is a European agreement of the kind we would want to be part of on an intergovernmental basis. The question to me was, does the new status compromise this? In my judgment, I think this is in the national interest to be part of.

Q8 Steve Brine: Understood. Please do check this, but is the 1,400 figure that you have given a net figure?

Chris Grayling: We have 4,000 EU FNOs in total. That includes people on remand, for example, so 1,400 of those are actually eligible for transfer.

Q9 Steve Brine: The second part of my question-then I am going to hand over to my colleague Mr de Bois-is, of the six mutual recognition instruments covered by the MOJ’s memorandum, you propose to opt back in to all of them except the probation measures framework decision. Try saying that! I know you told the European Scrutiny Committee last week you were concerned about the vagueness of the drafting of this. Could you just expand on that for this Committee?

Chris Grayling: One of the issues we have around the pre-Lisbon measures is that they were very often political compromises and were quite loosely drafted. Of course, what happens is, if you have a piece of loosely drafted legislation, the courts will decide what it really means. Within the UK, if we as a Parliament draft something loosely and the courts say, "That is not clear enough and this is how we are going to interpret it," and we do not like that, we can change the law. It is a very different situation at a European level. My concern is that in a number of cases-probation is probably the biggest example of this-the drafting is pretty vague.

Let me give you a specific example about that, Mr Brine. Basically, if we transfer an offender to another country to serve a period of probation, we would very probably deport them at the same time so they can’t just come back again. If we then discover that they have breached their probation conditions, it is unclear what the deportation status then is if the country involved says they must be recalled to prison, for example. That is where it becomes very vague and where we might find ourselves in a position where the European Court of Justice was taking decisions about our deportation system without our ability to control it. That is a good example of why I am worried that, in measures that are vague and in a number of the measures we have rejected across the two Departments, there is an issue about vague drafting and concern that handing over effectively to the European Court of Justice the decision of what they actually mean is not in our national interest.

Q10 Chair: Your fear is that the European Court of Justice might in some way be able to override the deportation decision.

Chris Grayling: That is possible-or they would define how our deportation system could or could not work. I think that is a matter for this country and not for the European Court of Justice.

Q11 Chair: Do you have any helpful statement of your lawyers’ assessment of the legal position on that? I am not looking for-

Chris Grayling: We can certainly provide a note for you of that.

Chair: Yes.

Chris Grayling: If that would be of help to you, we are very happy to do that. I should say that we have not been able to identify any situation where the probation measure has been used. It has only been implemented by a limited number of countries, and therefore I would not rule out a future Government deciding that they wanted to be part of a European probation measure; but at the moment the evidence is not there.

I also have a concern about the doing of justice. If we send somebody back to serve a period of probationary supervision elsewhere, I would want to know that they were actually going to get that period of supervision and it was going to be done properly in the way it is done in this country. It might be very tempting on occasion to say, "We have a bunch of foreign national offenders. Let’s ship them out," but I do not want people reoffending elsewhere because we have not delivered adequate safeguards within our own system or made sure that those safeguards are happening elsewhere.

Q12 Chair: But does that not also apply to the supervision order?

Chris Grayling: We gave quite a lot of thought to the supervision order, and, arguably, it could apply to that. What we have seen on many occasions with the supervision order is that people who are charged in other countries may then be stranded in other countries not able to come back here, waiting for a long period of time before trial. It is probably the one I have thought about hardest as to whether we wanted to be part of that or not. I was swayed on that by the individual cases that we have seen over the years and the fact that it is almost certainly in the interests of British citizens to be able to come back and serve their periods of bail here. They are, after all, innocent until proven guilty. There have been long periods of instability for individuals in that case in the past.

Q13 Nick de Bois: Lord Chancellor, if you see it as beneficial for the mutual recognition to apply to pretrial supervision and to prisons, is it not unreasonable to think that it should also apply to probation and rehabilitation? I know I am accused often of being obsessed with the European arrest warrant, but it is interesting that Sir Scott Baker argues that for conviction EAWs, when applied, signing up to this might reduce the number of European arrest warrants. Do you agree with that view?

Chris Grayling: It could be in the future that the person in my job or Government of the day decides that they want to be part of a measure, but, to me, the big issue underlying all of this is that we are handing over, in perpetuity, jurisdiction over these areas to the court. It is not just about the philosophy of the measures themselves. Broadly speaking, I do not like the idea of passing over Justice and Home Affairs measures to the jurisdiction of the court. My natural instinct is that I want our justice system to remain a British justice system. It is one that is as good as any in the world. I want decisions about justice in this country to be taken in this Parliament, so there has to be a pretty good reason for passing control to a European level and passing jurisdiction in perpetuity to a European level. We are, on the whole, sceptical about measures that Europeanise justice.

In each of these cases we have discussed across the Government what is in the national interest, where there are strong feelings within the Government about the need to be part of them, and where there are strong feelings within the law enforcement world about the need to be part of them. We have broken it down and taken a decision one way or the other. I am not ruling out in perpetuity that we might want mutual arrangements across Europe for probation. I have not seen any evidence at the moment that what is on the table is either a good measure that is working or that it is a well drafted measure that does not have lots of question marks with it. Given those two things, I would not be acting in the national interest if I simply said, "Right, we will pass it over to the ECJ now in perpetuity."

Q14 Nick de Bois: I, for one, welcome your instincts on justice, but then that begs the question that, if we are going into negotiations, effectively, for example, as part of the overall European arrest warrant package on those negotiations, have you assessed and would you resist any attempt to insist that the UK rejoin the probation measures decisions as part of the negotiations with the EU if we say we want to opt back in to the EAW to which the Government are committed? Are you inclined to resist them if that is the case?

Chris Grayling: It is difficult to prejudge a negotiation. My position at the start of that negotiation was pretty clear and at the end it would be a matter for Parliament to decide ultimately whether what the Commission had said to us was right or not, but I do not want us to rejoin this measure and certainly I will not be offering that on the table to the Commission.

Q15 Chair: The European Court of Justice point, though, has another side to it, which is, if what you want to do is to ensure that other jurisdictions enforce something that is in the British national interest, then you have to have some means that goes beyond the jurisdiction of the UK courts, do you not?

Chris Grayling: This is one of the dilemmas, Sir Alan, in addressing these international issues. It is very easy to place an argument that says, if we do not do this, then other countries will not behave well. My view is that I am not willing to see us compromise our own sovereignty and the integrity of our own justice system in the name of getting other people to improve theirs. We have something that is very good, and all too often we find ourselves in a situation where international courts are telling us to change our system in a way that this Parliament does not support, simply because if we do not do as it says then other countries may commit worse human rights abuses. I just do not think that is sustainable.

Q16 Chair: That is a different argument that applies to things like minimum standards measures. If the issue is ensuring that you can have enforcement of something, such as the return of people under the supervision order-and clearly we think it is in the British national interest that British citizens should not be languishing in foreign jails when they have not been proven guilty-then you need some mechanism to make sure that happens.

Chris Grayling: That is why, on balance, although I would rather not philosophically make the change around the bail measure precisely because of the issue of British citizens facing trial in other countries, I have fallen on the side of saying it is a price worth paying because it is in the interests of those citizens to do. I have not seen evidence to suggest that the probation measure meets the same criteria and that is why it is not on our list.

Q17 Mr Llwyd: Good morning. I am sure, Secretary of State, you are aware of this report by the Centre for European Legal Studies at the university of Cambridge by Professor John Spencer QC and others.

Chris Grayling: I am aware of its existence. I have not actually read it.

Q18 Mr Llwyd: It has been in existence since September 2012. I would just like to ask you what your view is on one of their conclusions: "If the optout were exercised, practical considerations would force the UK to seek to opt back into many of them" -that we agree-"and the ones from which the UK could safely remove itself permanently are ones which impose no practical constraints on the UK, from which a UK optout would serve no practical purpose."

Chris Grayling: I do not accept that. First, I am very clear I would not have got us here in the first place. The idea of having to opt out en bloc and then opt back in in the way that we have is not, if I had been designing this on a blank sheet of paper, how I would have designed the process. I would prefer us to be dealing with each measure one at a time in the same way that we can deal with new measures, but the treaty says otherwise. It is there in stone. That is the process we have to work with.

If you look at the measures we are talking about, I have taken a very clear decision in principle. I do not believe that Britain should sign up to common European criminal justice penalties. There are a number of measures in here that do that where it is not in our national interest to take a step in that direction, and therefore I do not propose to do so. Equally, within the Home Office area, the Home Secretary has decided there are measures she does not want to be part of. There are also measures, as I say, which have proved pretty ineffective, but, if we hand over jurisdiction, ultimately we do not know what future decisions the court will take in relation to them.

So what we have tried to do, in our view, is to provide the best balance in the UK national interest. We have to opt out of everything en bloc if we are going to opt out of anything. This is the process that was set out in the treaty and we are simply following it. But I do not accept that, because an individual measure may not have a particularly massive effect on our criminal justice system, we should compromise on the principle of saying we do not want European penalties, because the more we have European penalties, the more we have decisions in Brussels about what the sentence for a prisoner in our courts should be, the less control we will have over our justice system and the more we will be in that creeping process that you described towards the Europeanisation of justice.

Q19 Mr Llwyd: Following on that answer, there are six measures on minimum standards for criminal offences and their penalties, which the Government do not plan to rejoin. In all cases you say that the UK, through domestic legislation, already complies with those standards and so no legislative change would be required from not rejoining. You also say there will be negligible economic impact from not rejoining. Would you agree that there is no practical legal effect from leaving these instruments either?

Chris Grayling: It is a question of principle. If we already have a tough law in a particular area, then we already have a tough law in a particular area. That is my point, Mr Llwyd. We already have a justice system that is comparable to anywhere in the world. The question is whether we want to pursue a path that will lead to fewer and fewer decisions about the nature of that justice system being taken in this Parliament rather than in Brussels. I do not believe we want to go down that route, and therefore what I am saying right now is I am not going to start. I am very firmly of the view that I do not want penalties in our courts to be decided at a European level rather than at a UK level. That is the reason for this decision.

Q20 Mr Llwyd: Is it realistic to envisage compliance proceedings against the UK in the European Court on these matters, given that we already comply in most respects?

Chris Grayling: The situation could only arise if we joined up with them, but it would inevitably constrain any future Government from taking a decision that they chose to take. My judgment is that I want sovereignty over our justice system to be here in London rather than in Luxembourg or Brussels.

Q21 Mr Llwyd: Do you think there could be some reputational damage to the UK from not rejoining them?

Chris Grayling: I don’t think so. I think we have the best justice system of any anywhere in the world. It is a question of principle. Do we believe that we want the UK justice system to be a UK one or do we want it to be a European one? We talk a lot about how our system of law, our common law system and our legal traditions have an impact around the world, and the UK is looked to by many around the world as being a place where they want to come. That is why London is such a major centre for legal services to deal with complex issues. If we accept that our legal system will become more and more Europeanised, then, by definition, our USP on the world will become less and less visible.

Q22 Mr Llwyd: You keep using the word "Europeanised". I don’t know whether this is the byword at the moment, but whatever that particular word means-

Chris Grayling: What it means, Mr Llwyd, is that a penalty for a criminal offence is set on a European basis, not on a UK basis. It is a decision taken that what penalty should apply in our courts will be taken by European institutions rather than the UK Parliament. That is what it means.

Q23 Mr Llwyd: But doesn’t your stance undermine the notion that as partners within the European Union we should be playing a cooperative role with other partners?

Chris Grayling: I have always been supportive of playing a cooperative role with other partners, but look at what the Lisbon treaty did. I would not have signed the Lisbon treaty. The Lisbon treaty was a bad step for this country. I disagree with it. My party would have put that to the country and I suspect the country would have said no to it. The Lisbon treaty moved Justice and Home Affairs from an intergovernmental basis to one which falls under the jurisdiction of the European institutions. That is a pretty big change. The last Government, thank goodness, took a view that that is not what we wanted and negotiated the optout and I praised them for it. It has given us the flexibility to decide what measures are in our national interest in terms of cooperation across Europe when it comes to fighting serious and organised crimes, but what measures are not in our interest because they involve moving jurisdiction over matters that are clearly for this Parliament to a European level. They gave us that choice and we are very grateful that they did-and we are implementing that choice.

Q24 Andy McDonald: Good morning, Lord Chancellor. Can I ask some questions initially about matters of data protection, as we now move to a new directive on the framework decision, although it is progressing slowly. In a memorandum it has been said: "A fully functional law enforcement and criminal justice system within the EU needs to share data in an appropriate manner to protect the public and the rights of individuals." You have already provided, under cover of your letter of 7 October, reasoning in support of the Government’s wish to rejoin the framework decision on data protection in the police and judicial cooperation. Do you retain concerns about the draft directive on this subject currently under negotiation in Brussels, which would replace the framework decision if agreed?

Chris Grayling: First of all, it is worth saying that the reason for seeking to rejoin the data protection framework at the moment is that it is essential for cross-border crime fighting. The transfer of data between member states is clearly important in that. We do not want to put any constraints on that. We do not see particular problems with the new directive. There are still issues that are subject to negotiation, but I don’t see that as an area that we would want to not be part of.

Where we do have a significant issue at the moment in the data protection area, as you will be aware, Mr McDonald, is over the proposal for regulation that has a broader impact on business, where I am particularly concerned that in its current form the regulation would pose substantial extra costs for European businesses and for the European digital economy in a way that could do real damage to SMEs. It is worth saying that the impact assessment done by the Dutch, for example, shows a cost to Dutch business of in excess of €1 billion, which at a time of economic challenge to my mind does not make sense.

There are two parts to the debate at the moment. The directive part in relation to crossborder data exchange between law enforcement bodies is not the controversial part. That is the proposed regulation. We have argued very strongly for a directive rather than a regulation.

Q25 Chair: We, of course, reported on this on those lines.

Chris Grayling: Absolutely. My view of the data protection framework is that it is one of the ones that our law enforcement colleagues said was important to them where it is very clear that we do need to maintain cross-European mechanisms.

Q26 Andy McDonald: Do you see no potential problems with the Courts of Justice of the European Union exercising jurisdiction over arrangements for exchanges of personal data between criminal justice agencies in the UK and other member states?

Chris Grayling: If you said to me would I prefer that this was still done on an intergovernmental basis, yes, I would, but it is not, and therefore it is one of those ones where we have to take a decision and say, where does the UK national interest lie? In my judgment, this is an area that is important for us in combating crossborder crime. It is also important for us in being able to share information about people arrested in this country. It is one of those ones where, in my judgment and the Home Secretary’s judgment, it is in the national interest to remain part of it.

Q27 Andy McDonald: Finally, what is the reason for not proposing to rejoin the framework decision on settlement of conflicts over jurisdiction in criminal matters? What problems would be avoided by not rejoining?

Chris Grayling: I mentioned at the start that there were really three categories of measure that we are talking about. There are those that we think are in our national interest because of the need to combat serious and organised crime; there are ones that take us down the road towards the Europeanisation of justice; and there are also ones that are pretty meaningless and where I see no need to turn them into a Europeanised system under the jurisdiction of the court. The conflict of jurisdiction is effectively a cooperation mechanism between borders in different countries. It is not one where there is a particular need to have laws in place. It is not where we feel the need to say to the ECJ, "Here, you can take control of this." It is one of those ones. There are certainly some measures where there is not a lot of impact one way or the other. They do not add up to very much. They may have been put in place for political reasons rather than legal reasons and where we are going to carry on doing it anyway because there is no barrier one way or the other to it happening. This is simply about different bodies in different countries talking to each other. That is not going to stop.

Q28 Graham Stringer: I very much follow the logic of the pick and mix; you want us to be part of the processes that will be of benefit but not have a Europeanised justice system. I follow that logic. You probably know the history of the European Union better than I do. Do you not think there is a thin-end-of-the-wedge argument here-that you go so far and gradually those 35 measures get absolved into the other measures?

Chris Grayling: There is definitely a thin-end-of-the-wedge issue. The reality is that there is a determination in Brussels to create a much more Europeanised system, to go much further than European Justice and Home Affairs measures have gone so far. I do not agree with that at all. We have optouts available to us in JHA measures, but it is also the case-and it is on record from the Council-that the Commission has tried in recent months to introduce measures under different parts of the treaty that are not subject to our type of live optouts, in an attempt to make sure that those measures apply across the whole European Union. This is a battle and it is one of the reasons why I am strongly in favour of renegotiation of our membership of the EU, because there is no doubt that there are those who would like to take this much, much further.

What I am trying to do at the moment is to make sure we use the treaty in the UK national interest, that we take advantage of the things that we have that protect our national interest, but we also have to be mindful of the fact that there are some things where if we were not part of them it would cause a very obvious and immediate problem to our law enforcement authorities. In a world of some pretty unpleasant serious and organised crime that crosses borders, it would be something that Government feel would not be right to do.

Q29 Graham Stringer: On that democratic basis, I suppose, is it your intention to put these 35 optins for debate on the Floor of the House of Commons with the comments and recommendations of the different Committees that have considered it?

Chris Grayling: Before anything is finally agreed, there will be a full vote in the House. There will be full publication of all the documentation we have available. At that point we will be able to set out what the view of the Commission is because we have not had that detailed conversation. It will ultimately be a matter for Parliament to decide what we opt back into.

Q30 Graham Stringer: I am not quite sure what that means. Does that mean after you have negotiated the 35 optins there will be a debate on whether they are the right 35?

Chris Grayling: We have to do it that way round because, of course, we are in negotiation with the Commission as well. I guess we have to say to Parliament, "Please don’t tie our hands for that negotiation," because if we have effectively agreed a UK position before that negotiation there is not much room for negotiation. What we have to do is listen to Parliament, have discussions with the Commission on the basis of the views both of the Government and of Parliament, but then bring the Commission’s views back to Parliament to say, "Is that okay or not?"

Q31 Graham Stringer: I understand that now. It is the end of a process.

Chris Grayling: Yes.

Q32 Graham Stringer: The Commons will to get to discuss it. The optins are irrevocable. What about the optouts? Can they be negotiated at some time in the future?

Chris Grayling: If we take the example of probation, if all the concerns about probation were allayed, I doubt that that is going to happen in the next 18 months, but it is possible for a future Government to decide to opt back in to that, or, indeed, there may be a successor measure that comes along and it is possible for Government to opt back in to that. None of the optouts are in perpetuity. They are the current the judgment of this Government as to what we want to be part of. I am not sure that any future Government would take a radically different view, but if it does it has the opportunity to do so.

Q33 Graham Stringer: We will, if we opt in, rejoin the Euro justice system. If that grows a European Public Prosecutor’s Office, what will be the Government’s attitude to that?

Chris Grayling: We are not in favour of a European Public Prosecutor. The coalition agreement states very clearly that we will not be a part of that. There are serious misgivings among other member states. The European Public Prosecutor will involve a real watershed step for this country and other member states because it allows an international body to initiate proceedings in this country, and that is not a route we are going to go down.

Q34 Chair: That is an interesting answer you gave because, whereas earlier you were referring to determination in the Commission to Europeanise justice, you rightly pointed out in the case of the European Public Prosecutor that quite a number of member states are not happy to go in this direction. Would it not be more accurate to describe an institution in which there is a tension at times between the Commission’s plans, ideas and visions and the views of member states? Yet, in most of your answers to our questions, it is, as it were, the UK versus the Commission that seems to be your way of looking at it, whereas we have many member state colleagues in the European Union who have either similar concerns or different concerns that are equally important to them, which may mean they do not agree with the Commission?

Chris Grayling: That is true. One of the challenges we have in the European institutions is the current position of the Council, because, of course, the Lisbon treaty gave codecision making to the Parliament. My sense is that the Council needs to assert its opinions more strongly, but that requires other member states to be willing to do that. I will obviously continue to encourage my colleagues to do so. It is sensible for us to engage in constructive discussion but there are some areas where we just have to say no. The idea of having prosecutions taking place in this country outwith the remit of our prosecutor is one I am not willing to countenance.

Q35 Chair: This Committee has in the past recorded its opposition to the idea of a European Public Prosecutor, but so have a number of other countries too. Again, you refer to the Parliament. Parliament is elected by the citizens of all the member states. Again, you are attempting to lump it with the Commission as simply an institution with a single objective, whereas it is a Parliament, with all the diverse opinions that a Parliament contains.

Chris Grayling: It is of course, but it is the Council that is supposed to be the strong voice of member states. I would like to see the Council exert a stronger voice in some of these matters.

Q36 Chair: Just on another point, the larger part of the measures in the optout area comes within the Home Office’s responsibility, including the European arrest warrant, for example. Have any of the decisions you have made been contingent upon Home Office decisions in relation to other measures?

Chris Grayling: No. We have sat down and had constructive discussions. The Home Secretary and I met police chiefs together, people in the intelligence services and so forth; so we did a lot of this together. There has not really been any issue of pressures one way or the other.

Q37 Gareth Johnson: Do you ideally see these 35 optin measures as something that would be rolled out globally rather than simply being kept as a European Union issue? It seems to me that some of these measures can be avoided simply by stepping outside the European Union, and therefore perhaps this is something where we need to look beyond the European Union in due course. I appreciate that is not the immediate decision you are making, but in time to come.

Chris Grayling: I would like to see the kind of measures that we are talking about within Europe shown around the world. I am not sure I would want to give the European Union complete discretion to negotiate agreements for us. We have been having little battles in the European Court of Justice over them doing this in relation to social security payments, for example. There are those who want to create a European Government and want the European Commission to act as their Government and want to take all those decisions for us. I am very keen to see cooperation in crime-fighting matters around the world but I do want decisionmaking about what is in the UK national interest, where it possibly can, to remain in the UK.

Q38 Jeremy Corbyn: You have used the word "Europeanisation" about 20 times this morning already. Is this part of your campaign to withdraw Britain from the European Convention on Human Rights as well?

Chris Grayling: The two are very different issues. What we are talking about today is the creation of a European legal framework for justice within the European Union. As you know, the legal framework around the European Court of Human Rights is a very different one. It belongs to the Council of Europe; so, no, they are very different things.

Chair: Thank you very much indeed. At that point we will move to the other subject for this morning.

Prepared 17th October 2013