§ 8.1 p.m.
§ The Minister of State, Home Office (Mr. Brynmor John)
I beg to move,That this House takes note of EEC Document No. R/2043/76 on Criminal Law.I begin by thanking the Select Committee, under the chairmanship of the right hon. Member for Bournemouth, West (Sir J. Eden), for its report on these proposals. The Committee raised a number of pertinent questions during the course of its deliberations. As the Government have at the moment reached no fixed views on the report, I think that this is a good opportunity for the views of the House to be heard. They may not be heard very loudly and clearly tonight, but at least the invitation has been made.
I should like to explain the present status of the document. When the document was sent by the Commission to the Council in August 1976, it was thought that last autumn would also have been the time when the European Parliament, which considers all such documents, delivered its opinion so that the Council might act on the proposals before this coming September. That has not been the case. The opinion is still awaited. Therefore, we are in the same position today as regards positive developments over these proposals as we were when the Select Committee published its report.
It is important to remember that, although we are considering only one document, we are essentially considering two distinct proposals within it. The common element which binds them is the criminal law. The first proposal seeks to amend the Community treaties so as to allow acts against the financial interests of the Community to be covered by the criminal law. We contributed to the work of a working group set up by the Commission in 1973 to tailor existing plans.
The other proposal seeks to ensure that the national laws of member States designed to combat those offences likely to be committed by or against Community officials are also applicable to Community officials.
As I have said, we are not committed—nor is any other member State—to either of these proposals. Legislation 1492 would be required before any change was made in our law.
Neither of the two proposals would, in my judgment, require any change in the substance of the criminal law which applies in the different jurisdictions of the United Kingdom. The law in Scotland, as in England, penalises the misconduct at which the proposals are aimed if it is within the jurisdiction. The position may be different in some other member States. There is one possible exception, but that comes under the second proposal.
The protocol to the draft treaty relating to offences committed in relation to Community officials would require us to apply to Community officials the provisions of our criminal law which relate to "breach of professional secrecy". We have no such specific provisions in our law. As hon. Members will know, we have only recently debated the Official Secrets Act and the possible rejigging of Section 2 of that Act. We think that the article would involve us in applying to Community officials the law relating to the unauthorised disclosure of official information which applies to our own civil servants. We shall seek to confirm this in the further negotiations which will take place on this proposal. By the time that we need to take any such action, we hope that our own law will have been amended and considerably improved. I reiterate the pledge that I gave about a White Paper on the reform of Section 2 of the Official Secrets Act.
When we come to jurisdiction, there are greater problems. Our traditional system of enforcing the criminal law is very different from that of many of the rest of the Nine. The Select Committee, in its report, has noted some of these differences.
In our common law systems, jurisdiction is largely based on territory, although there are some exceptions. The Suppression of Terrorism Bill, which was debated within the last month in the House, is an exception. We generally insist on oral evidence and place emphasis on the opportunity for cross-examination.
The civil code countries view things differently. Nevertheless, on the substance of the matter, whatever our views of the Community, I believe that we 1493 should be anxious to safeguard Community funds so that no overt fraud cannot be checked by any law in any of the member States. We are discussing proposals to deal with that kind of matter.
We have traditionally relied upon extradition as being preferable to the transfer of proceedings for dealing with the offender who moves away from the country where the offence was committed. The Government will continue to press for priority to be given to the use of extradition where serious offences against Community law are concerned. However, under the proposals, we should in no way lose our option to use extradition if it is practicable in a particular case. If extradition were unsuitable and we were to agree to the transfer of proceedings, there would be the same safeguards.
I know that my right hon. Friend the Member for Battersea, North (Mr. Jay) made a particular point regarding extradition and suggested that the transfer of proceedings would rob the person concerned of a valuable judicial safeguard—the establishment of a prima facie case—if it were to be removed in favour of a transfer to the country trying it. Whilst that certainly is a theoretical position, a prima facie case is no more and no less than committtal proceedings. If the case were to go to a higher court for trial, as I believe it would, and were not to be triable by a magistrates' court, exactly the same prima facie case would need to be made out at first instance before the committtal could take place. Therefore, in reality, even on a transfer of proceedings rather than extradition, no step in judicial safeguard is lost. Nevertheless, I believe that, in our dealings with this matter, we should express our preference for the continuation of extradition proceedings wherever possible.
The second point that I want to make is that it is not automatic that any country which is requested to have proceedings transferred to it should accede to that request, although reasons are to be given if a decision is taken not to prosecute. We might need to take full advantage of that provision if our insistence upon oral evidence and the compulsion of witnesses to travel abroad cannot be enforced.
1494 On the other hand, the second proposal provides that the member State of which an accused person is a national shall take proceedings against him in that State, but it goes on to stipulate that no member State should be required to prosecute its own nationals in all cases for offences committed elsewhere as the State where the conduct occurred may be asked, and may agre, to institute proceedings it that would be in the interests of justice. I think that all member States are alive to the fact that there would be obstacles to the free transfer of proceedings in our various jurisdictions if the scheme envisaged were adopted.
Of course, we would not want to prosecute all offences committed abroad. In the majority of cases, another member State would have a greater interest in taking the proceedings, and we would naturally be reluctant to see the transfer of proceedings happening frequently in trivial cases. Equally, we should not be able to grant or seek extradition unless the gravity of the case warranted such action—and this is one of the major subjects of discussion which will need to take place in the Council of Ministers and the working parties which will be set up if, at the end, we are to come out with something that makes sense and provides proper protection without in any way diminishing the protection of our law and the way in which it is conducted.
The Select Committee also drew attention to article 177 of the treaty establishing the EEC, under which the Court of Justice has jurisdiction to give preliminary rulings on certain questions. The proposals provide that persons covered by them shall, if they are in custody, have the benefit of a three-month time limit within which the court must give its ruling.
The Government accept that this proposal represents a wider divergence from our criminal procedures than any other proposals in the draft document. Because of that, we shall need to take and we shall take great care when the time comes to consider those proposals in detail. We are naturally greatly concerned both for the rights of accused persons in custody and the problems caused by the disruption of a hearing and the disbanding of the jury pending the ruling of the court.
1495 I believe that this is an opportunity for the House to express a view on the substance of these proposals. It can do so at a time when the Government have not taken a fixed view and are not therefore saying to the House "Please rubber-stamp our view". We are genuinely concerned to safeguard both Community funds and, more important, the right to justice which exists in this country.
§ Mr. Ivan Lawrence (Burton)
Could the Minister indicate which Department of State would be responsible for supervising these arrangements and for enforcing them and watching their enforcement as between States? Would it be the Home Office? Would it be the Attorney-General?
§ Mr. John
I can speak only about those Departments which have so far played any part in the matter. There has been a number of them, including the Home Office, the Scottish Office and the Lord Advocate's Department, because there are jurisdictions in Britain and not a jurisdiction.
I was emphasising that we have to seek the protection of our law and not weaken it in any way whilst making the point that Community funds must be protected. I hope that the House will give its views in a constructive way so that whenever the opinion is delivered and whenever the discussions are undertaken, the Government will be able to do their best on behalf of the country.
§ 8.4 p.m.
§ Sir Michael Havers (Wimbledon)
We are grateful to the Minister of State for the guidance he has given us on this document.
As he says, this is a preliminary discussion. There are two matters which I think are important to note. One is that this draft document does not call for the creation of any new offences. It is also important to note that the proposals do not require any change in the traditional safeguards for the defendant under our existing law of evidence or criminal procedure.
It does extend the principle of extraterritoriality—a terrible word, one of the bastard words which has crept into the English language, I suppose, ever since we extended our principle of that word, 1496 which is not unknown to our law. It has always existed so far as murder is concerned and under the Official Secrets Act in the case of certain United Kingdom citizens, and recently we have created it so far as certain hijacking offences are concerned.
The examples that we have seen in the Common Market indicate that there is a need for a provision of this kind, especially seeing that a fraud committed by a company established in one member State in the territory of another cannot give rise to criminal proceedings in what I might loosely call the home State. The offences themselves do not always fall within the fraud definition of the State where the offence was committed if the offence was aimed at Community funds rather than the national funds of the State concerned. There are certain States where, if the offence was against Community funds and not national funds, their provisions of criminal law will not cover that situation.
Obviously, a loophole of that sort must be filled. The provision decided upon was to permit a member State to apply, in cases of fraud involving Community funds, those provisions of its own criminal law which protect its own public funds.
I accept that we must always be very careful to ensure that we do not allow our system of criminal law to be extended so as to defeat or evade the principles which for centuries we have jealously guarded. In my view, the safeguards in the draft document are adequate, and the offences which these changes are designed to bring to account justify what is proposed.
Obviously, there has to be further discussion. Matters such as that which my hon. Friend the Member for Burton (Mr. Lawrence) has just raised will have to be decided. But in principle we think that this is sensible. I end by congratulating the working party from the Nine member States, which started its work in 1972 and which has provided what I think may be the sensible solution to the problems which face us.
§ 8.6 p.m.
§ Mr. J. Enoch Powell (Down, South)
This is a very difficult debate for a layman, and I intervene in it with trepidation on that account. Nevertheless, the 1497 matters with which the document deals are not matters which the lay Members of this House are entitled to treat as not concerning them. They are obviously of potentially profound importance, and that is one's, I do not say excuse, but justification for taking the risks attendant upon entering into what is obviously a legal thicket.
This document is on a different footing from most of those which we consider under the same Standing Order. In the case of most of those documents, at some stage in their gestation the Minister at the Box is entitled—it may be against his will and it may be against the will of many hon. Members—to say that our membership of the Community as it is constitutes a degree of obligation upon us to accept what is proposed in those documents, or to accept what is proposed should those documents clear the Council of Ministers. That, I understand, does not apply to this document.
First of all, there is nothing in the existing treaties which can be construed as obliging us a priori to accept these recommendations. Secondly, even if these recommendations were accepted by the Council of Ministers, Her Majesty's Government could do so only ad referendum in so far as a change in the law of this country was a precondition of our acceding to the new proposed treaties.
Here arises my first question to the Minister. In the event of the Council of Ministers accepting these or derivative proposals, would the necessary legislation be put through this House before there was a question of the treaty being ratified or of the necessary resolution under Section 1(3) of the European Communities Act to adopt the treaty for the purposes of that Act? In other words, is the progression such that this House, when it comes to look at the implicit legislation, will be able to take an unprejudiced and unbounden view of what is proposed? I would be grateful if the Minister could lay out a little more clearly the sequence of events.
Then I would ask the Minister of State to clear up a little further what has been happening since these documents originated. The document before us, as addressed to the Council, is dated "Brussels, 18th August 1976", and the hon. Gentleman's explanatory memorandum is dated 1498 21st February 1977. The memorandum reminds us, as indeed is stated in the document, that consultation of the European Assembly is, by the treaty, requisite for this purpose—mandatory. Has that consultation taken place? If so, what was the result of the consultation? Moreover, tutored by an earlier debate today, may one inquire what was the balance of opinion in the European Assembly in the course of that consultation, because it has come to our notice that some consultative conclusions have been arrived at by no means unanimously?
The document finally says that the Councilshould act on these proposals before September 1978.We should, I hope, assume that all those dates, like so many Community dates, have gone down the river, have been borne on down the stream of time. But could we have a new prospective time table, or, at any rate, a new prospective non-timetable—that is to say, an indication of when we may not yet expect to make renewed acquaintance with these proposals?
While I am referring to that item in the covering note of the document—I have already quoted the wordsthe council should act on these proposals—I take it that that means that the Council should take these proposals into consideration, and if unanimously agreed upon, that recommendations should be made to the member States for the necessary procedures which would be required if a treaty were in fact to be made, signed and ratified.
Those are preliminary points—both, I think, fairly plain—to which I would be grateful if the hon. Gentleman would attend when he replies.
The point of greatest substance which strikes one in studying this document is that, like so much that emanates from the Community, it represents a further step towards the consolidation of the Community as a State, towards its recognition not as a co-operation of sovereign States but as a State in its own ight. In this connection I would refer to such sentences as that on page 4 of the document, where it says:It was felt that an overall solution ensuring the enforcement of Community law as a whole must be sought.1499 What is this "Community law" to which constant reference is made throughout these proposals? Of course, one understands that membership of the Community entails upon the member States, by virtue of the treaties, and things done under the treaties, obligations. Those are obligations upon States. I can understand that that could be one meaning of "Community law". But, presumably, it is not with that meaning of Community law that these documents and the proposed treaties deal. So we must be concerned with Community law in so far as it gives rise to criminal proceedings, and, therefore, in so far as it is binding upon individuals.
If I am right so far, then I want to inquire what has changed since the position as we understood it when the European Communities Act was enacted in 1972. At that time—and I must confess that I have remained under the impression ever since— I believed that any obligations upon a person in this realm flowing from our membership of the European Economic Community, were, so far as he was concerned, a consequence of the law of this country—the law of this country as made either by Parliament, or under the authority of Parliament, or as a consequence of the embodiment in the law of this country of directly applicable, self-enacting enactments of the European Community. Whichever way it is, breaches of the law of the Community taking place inside this country must, so far as I understand, be breaches of the law of this realm deriving from the authority of Parliament.
Again, if I am correct at this subsequent stage I want to inquire in what respects, and how is it, that the law in the United Kingdom is unable to deal with offences against laws deriving from our membership of the Community. Where are the loopholes? How is the law in this country unable to deal with offences against Community rights or property? The layman, at any rate, would have supposed that if a person stole or otherwise misappropriated funds or assets which belong to the Community and committed that act in this country, he would already be in breach of the law of the realm, and that the existing law would be able to be applied to him.
1500 Where, then, I ask, are the loopholes that this whole piece of alarming machinery is intended to fill? So far as many of us had supposed, our obligations here in this realm under the law, deriving from our membership of the Community, whether or not we liked it, were, in fact, enforceable by the law of the United Kingdom, and in so far as they were criminal, enforceable and punishable in the courts of the United Kingdom.
I understood from something which the Minister of State said that the answer to my question might be that there is no such loophole in the United Kingdom but there are loopholes in some of the other member States. I understood him to say that in some of the other member States, State property, for example, was dealt with differently under their law from other forms of property, so that it was necessary to assimilate, for their purposes, Community property, or the like, to State property. But that, so far as I am aware, is not the position in the United Kingdom.
So if the answer of the Minister et State is that there is no loophole in the United Kingdom but there are loopholes elsewhere, and, therefore, the Community is going to introduce new treaties to meet those loopholes in other territories, I believe that many of us would need a good deal of persuasion that we needed to alter our law in this country and to undertake unnecessary obligations for this country in order to stop loopholes which exist in other States.
So I should be grateful—and I think I am not alone in saying that—if the Minister of State could clarify this matter a good deal further.
I would then like to go on to the issue of extra-territoriality, as opposed to extradition, to which the Minister of State devoted a considerable part of his speech. As he said, territoriality is, though not entirely without exception, of the essence of our system of law; jurisdiction depends upon territory, upon the place of the offence. We are now, however, in this document, presented with the proposition that not merely occasionally but even regularly it may be necessary to resort to extra-territorial jurisdiction in order to enforce the law of the Community.
I read from one of the preambles of the proposed protocol which is on page 8 1501 of the document. It is among the "whereases". It begins:Considering that the criminal law of the Member States cannot usually guarantee the protection of the financial interests of the Community nor ensure effective punishment of infringements of the provisions of the treaties establishing the European Communities, of provisions adopted in pursuance of those treaties or of provisions laid down by Member States by law, regulation or administrative action for the implementation thereof".I find, and I cannot be alone in this, that to be a staggering statement—that the criminal law of member States "cannot usually guarantee" all those things that I have read out. Even the Minister of State, in making the best case that could be made for the document he was laying before the House, referred only, so far as I heard him, to certain loopholes in some of the member States. That is a far cry from the comprehensive denial that at present there is "usually" the means of enforcing the law made by or under the Community or protecting the interests of the Community. We ought to need a great deal of satisfying that that condition precedent to the proposed protocol has any reality.
What seems to be deduced from that embracing and astonishing proposition is that it will be necessary, in most cases, for persons who are accused of prejudicing the financial interests of the Community in a criminal manner, or of committing offences of the other classes mentioned, not to be brought to book in the country and the State where that was done, but that they will be, so to speak, sent home for trial; that the jurisdiction will usually be transferred to the country of origin from the country where the offence was committed. That is a gross alteration of the underlying presumption in our own law, and it is one which requires extensive practical justification if we are to entertain it at all.
What I fear lies behind this is once again the whole philosophy of the working of the Community, as tending to the creation of a unitary State—and not merely a unitary State, but a unitary European State, and by that I mean a unitary Continental European State. For it is a concept not unkown on the Continent of Europe, though unknown to us since some unlamented provisions of the Poor Law were disposed of, that there is a presumption that a person will be 1502 punished in his home territory, to which he is somehow attached. The sense of a person being in a manner tied—juridically tied—to his place of origin is a concept not at all unknown on the Continent. Indeed, a great system of law existed over a great part of the Continent to ensure that people did not leave their place of domicile without permission, and could be returned to their place of domicile at the will of the Government. That was the prevailing presumption throughout a great part of the Germanic territories on the Continent.
I wonder whether this notion of the Community—that to enforce Community law and to protect the interests of the country we have somehow to insist on a system of jurisdiction in the place of origin—is not connected with those deep prejudices and presumptions of an entirely different system of law from ours?
It has been only too obvious in what I have said to the House that this is a layman and not a lawyer speaking. But this is a political as well as a legal document. Everything which emanates from the EEC is political. There lies behind it a political will. The political will which lies behind this document is a political will which, at any rate upon first acquaintance, is repugnant to some of the most fundamental ideas entertained in this country. I hope that not only shall we—and I know that the right hon. Gentleman is nothing loth—be assisted further tonight by him in his concluding speech, but that before we get to the point at which the Council of Ministers is to take a decision on anything following from these documents there will be another and major debate in this House—on any showing this is a major subject—and that if that hurdle is crossed there will still be many opportunities for this House, as the guardian of the rights of the subject, to have an uninhibited opportunity to consider what is proposed and to decide whether to agree to it.
§ 8.25 p.m.
§ Mr. Edward Lyons (Bradford, West)
The funds collected and distributed within the EEC are so enormous that it is a matter of considerable importance that those who act dishonestly in relation to those funds should be apprehended and punished. Anyone would listen sympathetically to proposals that would ensure that 1503 dishonest people did not escape when they had been the guardians of international public funds and had enriched themselves by the dishonest use of those funds, but there are matters which worry me and which I hope will be carefully considered in relation to these documents.
First, it seems to me that the proposals will create some doubt about where a particular offence or a particular individual should be tried. The home State appears to be preferred, but there are provisions whereby the State in which the offence is committed should also be able to try. When one is dealing with matters in half a dozen different States of the Community there could be almost a lottery in which six or seven different States have some claim to try the individual.
The difficulty with that is that one needs to know who will decide where the man will be tried. Will he have the right of election? Will he be able to apply to a judge and say "I do not want to be tried in France. I would rather be tried in England"? Will some police officer somewhere say "We have a choice here, boys. Let us get in touch with our opposite numbers in those other Community countries. They are much tougher on this sort of offence than we are. Let us send the case there. Let us ensure that there is no application from that other country which has a claim, or make sure there is a claim from that country which has a claim".
What about sentences? Suppose that a sentence in England is 10 years' maximum and the sentence, for example, in Denmark is five years' maximum. Suppose the gaol conditions are very different. It is a matter of enormous importance to the individual and perhaps also to the public interest where a person is tried, because the act of transfer in itself may alter substantially the length of imprisonment to which he is eventually sentenced. It seems that there will have to be some machinery for ensuring that there is no abuse and no caprice in the exercise of this new extended jurisdiction.
It is true that English judges have been trying to extend the principle of extraterritoriality as far as they can, because now that travel is easier one gets a situation in which a plot is hatched in Lon- 1504 don but executed solely on the Continent. The idea that people can escape once they have got back to Britain and cleared the Continent is not acceptable to judges.
There has been a recent development in the criminal law to the effect that if there is virtually any connection with England in terms of the planning or execution of the offence, the English court shall be able to try it, but occasionally we come across a case in which a man comes back from the Continent and has got clear away with it, and nothing can be done. In future that will still be the position unless it is a Community offence, and we are to have two classes of people—those who commit offences on the Continent and get back to Britain but have not committed an offence in relation to the Community, and those who have committed an offence in relation to Community funds.
Two different laws will apply. In one case the man can be prosecuted in England, even though there is no nexus with England, because he is a citizen of the United Kingdom. In the other case he cannot be prosecuted, because although he is a citizen of this country the money he stole was from a bank and the people he defrauded were people not directly involved with the Community. That seems to me to indicate that there may be complaints that people are going to be dealt with very differently, according to whether the kind of fraud is a Community fraud or not. A man who obtains £50,000 by fraud may escape entirely because it is not a Community fraud and there is no extra-territorial jurisdiction, while a man who obtains £10,000 from the Community by fraud can be dealt with in this country because there is extra-territorial jurisdiction. That seems to me to be very strange.
One way of dealing with the situation would be to have common courts and common sentences for all Community offences and Community officials. The right hon. Member for Down, South (Mr. Powell) saw the present proposals as leading to a Community law of its own, but I am not so certain that he is right, because these proposals seem to recognise that officials in the Community are on loan from their respective countries and are still controlled from afar by the country which has sent them into Community 1505 service, and when they commit an offence the first claim for trying them is with their own country of origin.
It is because there is no recognition that the Community is an independent international State that all these anomalies arise, or are likely to arise, of different sentences for the same offence according to where a man is tried. Three men working side by side in Brussels—a Frenchman, a Belgian and an Englishman—can join in committing the same fraud and the Englishman can come back to this country and receive a sentence of five years, the Belgian can stay where he is and get seven years, and the Frenchman can get 10 years, with everything else exactly the same.
That seems to me to be rather strange. The way round it, which would be anathema to the right hon. Member for Down, South, is that the Community should have its own courts, its own prisons and its own prison sentences, with its own maxima. Then we would have an international institution setting itself up as an international State. But because that is anathema to so many people in this House we cannot do that. The result is that we shall have the anomalies to which the right hon. Gentleman objects. Everyone is to be dealt with differently because the EEC is not behaving as an international State of its own. These proposals give rise to anomalies. They are very complicated, and I hope that the Government will think about the matter very carefully before agreeing to any changes.
I entirely agree with the right hon. and learned Member for Wimbledon (Mr. M. Havers) that the House should have an opportunity for a full-scale debate on the implications of these documents, but if we look around we see that many hon. Members are daunted by the technical complexity of the legal concepts involved, and although the subject deserves a full-scale debate one wonders how many hon. Members would turn up and participate.
This is one of those cases in which the lack of research assistance for non-lawyer Members has a serious effect on our ability to deal with this sort of proposal. It is certainly a complex matter, and I hope that what has been said in the debate will enable the Government to 1506 have additional thoughts on where we are going with these proposals.
§ 8.35 p.m.
§ Mr. Ivan Lawrence (Burton)
I do not share the fears of the right hon. Member for Down, South (Mr. Powell) that the Community is trying to impose upon us a unitary State with a unitary system of criminal justice. If it were proposing to do that, the safeguards that give priority to the home countries would not have been included in the proposals and efforts would have been made to create Community offences and to interfere with the traditional safeguards in individual countries' laws of evidence and procedures as my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers) pointed out was not the case.
However, I am puzzled by the proceedings concerning these proposals. Although I am a practising criminal lawyer, I must confess to speaking in this debate with as much trepidation—possibly a lot more—as was felt by the right hon. Member for Down, South.
I appreciate the points made by the hon. and learned Member for Bradford, West (Mr. Lyons), but I do not agree that they cause great problems. The essence of the second phase of the proposals is merely to extend the extra-territoriality—I think that I am the first hon. Member to get that out in one go—in respect of the offences that will be applicable to Community servants. I do not think that the anomalies that are thereby created need cause us any great concern. The alternative to the extra-territoriality proposals are the ordinary processes of extradition, and I do not see people escaping from the net if they have committed criminal offences in various parts of Europe or elsewhere.
Equally, the question of disparity of sentences for the same offence is no different under these proposed rules from that at present. A country may be harsher in the imposition of penalties than are other countries. It is not a valid reason for objecting to the broad scope of these proposals to say that this disparity may continue.
§ Mr. Powell
But surely for an offence committed, let us say, in Brussels under the extra-territoriality provisions there 1507 could be different punishments in England, France and Italy?
§ Mr. Lawrence
Yes, but there could be different punishments now. These proposals do not affect the possibility of the disparity of sentences which might be imposed. In eny event there is often now a disparity in sentences within our own jurisdiction according to the circumstances of the individual being sentenced.
§ Mr. Edward Lyons
At present the offence committed by a British official in Belgium will be tried in Belgium, but under these proposals he will normally, but not always, be brought back for trial in the United Kingdom. That will mean to the official a difference in procedures and quite possibly in sentence.
§ Mr. Lawrence
Even if the hon. and learned Gentleman is theoretically right, it is inconceivable that the countries will not get together to make some effort to harmonise the sentences that they will impose for the offences that are envisaged in the proposals. I see nothing wrong with that. If it is important to eliminate the disparity of sentence, that is probably the most just way of going about it. It is somewhat unrealistic to suppose that someone would receive severely disparate sentences in different countries, even though that would not necessarily be to change the situation from that which now exists.
I turn to the two matters upon which I rose to address the House and upon which I should like the assistance of the Minister of State. I am frankly puzzled. We read in the Select Committee's report that the attention of the House is invited to the exceptional nature of the proposals. The Minister has asked the House to express a view about the proposals. How is it possible for us to express views other than in the most unsubstantial way? I say that without offence to the hon. and learned Members who have spoken. Where do we look for advice on the problems that the proposals pose?
If we were to ask as the Select Committee invites us, "How necessary are these changes?", what evidence is there before us that will help us to give an answer? What documents tell us how necessary it is for the countries of Europe to accord together to bring about these 1508 changes? The Select Committee invites us to consider what alternative proposals there may be that might be better than the proposals laid down in the documents before us. But where do we look for assistance in making such a judgment? Why have these proposals been chosen? Surely we are entitled to ask. Where shall we find the advice? Where is it written that a number of wise and learned lawyers from all the countries concerned came together to examine these issues?
When we consider changes of the law in this place we normally have before us the findings of the Law Commission or the Criminal Law Revision Committee. Normally a learned body of lawyers will have carried out investigations. The Departments of State will have produced White Papers containing alternative arguments, and the facts and statistics will be well known. How are we able to accept the invocation of the Select Committee on these proposals? If we ask "What exactly are the implications of a reference to the European Court of Justice in serious criminal cases where the accused is already in custody before conviction?", which is another of the issues that we are invited to consider, how will my hon. and learned Friends or any hon. Member know the exact nature of the implications? We do not know whether they have been examined or where to find the results of the examinations.
I do not wish to labour that or any other argument, but it is a source of puzzlement to me that we can be expected to express a view without having information or the access to information gained by those who have given consideration to these matters. I assume that others have considered the matter. I assume that the proposals have not merely come off the top of the head of a Commissioner. I assume that a body of learned men drafted these provisions and that they thought that they were necessary.
That brings me to my second point. It is a matter to which I referred in the question that I asked the Minister during his deliberations. Who speaks for us in these matters? Who watches over the interests of Great Britain in legal matters which are being discussed in the European Community? Is it the Home Secretary? The Minister of State from 1509 the Home Office introduced the debate. But is it the Home Secretary himself? Is it the Minister of State who negotiates with Ministers of Justice from other countries? Is it a civil servant? Is it the Attorney-General? If he is involved, why is he not here?
About seven years ago my hon. and learned Friend the Member for Southport (Mr. Percival) chaired a committee of the Society of Conservative Lawyers. That committee had the foresight to see that when we went into the European Community and legal changes and developments became necessary, it was important that this country should be represented by a Minister who was answerable to the House—a Law Officer who was learned in the law, who fully understood the ramifications, and who did not just take advice from civil servants. That committee proposed the resuscitation of a third Law Officer. This country once enjoyed the existence of that office and the Law Officer was called the Queen's Advocate.
Now that we are involved in intricate legal developments the time has come for us to consider in the House, or if that is not necessary, for the Government to consider, the creation of a third Law Officer to go to Brussels, Luxembourg and The Hague on our behalf to assist, to take decisions for Britain and to defend the interests of Britain in legal matters which arise.
§ Mr. George Thompson (Galloway)
In the United Kingdom we have several jurisdictions. Therefore it would not be appropriate for only an English Law Officer to be involved. What thoughts has the hon. Member for Burton (Mr. Lawrence) about the involvement of Her Majesty's Advocate, who is present tonight and who is one of our Scottish Law Officers?
§ Mr. Lawrence
I concede the complications of the dual system. I suppose that it follows from that that the Lord Advocate, either as an assistant to the United Kingdom's legal representative or, perhaps even in his own right, if the matters were closely related to Scotland, should fulfil the duty which I suggest should be fulfilled by a trained legal officer in Europe.
The first matter about which I have spoken causes me puzzlement. The 1510 second matter causes me to provoke the Minister, the Government and perhaps my hon. and learned Friends into considering the present unsatisfactory situation. Faceless persons appear to be conducting negotiations on behalf of Britain. They are persons who are not perhaps answerable to this House and whose names are not well known. It might be better for Britain's interests if the position of a third Law Officer such as the Queen's Advocate were revived.
§ 8.50 p.m.
§ Mr. Douglas Jay (Battersea, North)
This is indeed an area in which any unlearned Member of this House certainly fears to tread. Nevertheless, I do not think that it would be right for laymen to disregard altogether what is happening or to fail to ask the Minister a few questions in order to enlighten us further.
My first anxiety about these proposals arises from the assurances which we were constantly given in the earlier debates about EEC membership, in White Papers, in ministerial speeches and elsewhere, that what ever else this House and this country was surrendering in sovereignty, the criminal law would not be infringed or invaded by the EEC if we were to join. Certainly at the time of the referendum that assurance was constantly repeated. I am sure that my right hon. and learned Friend would not suggest that at the time of the referendum the British public was told that EEC membership involved changes in our criminal law, and perhaps in the procedure of our criminal law.
It seems to me, therefore—and I ask my right hon. and learned Friend whether he agrees—that it would amount to something very like another breach in one of the fundamental pledges given at the time of entry if in order to accommodate the EEC any material changes were made in our criminal law and our criminal law procedure.
Another anxiety which one inevitably has, as a result of these unforeseen intrusions into areas of our affairs which it was thought would be exempt from them, is that a sort of creeping process is going on by which gradually one area of the law, and one area after another of our national policy and national affairs, is being invaded in a fashion which had not hitherto been foreseen. I believe that those anxieties are real. Therefore I think 1511 that we should be told how these proposals fit in with the assurances which we have constantly been given.
Perhaps I might ask the Minister, since he is so much more learned than I, exactly why it is that these proposals are necessary at all. I had supposed, as a layman—I say this because both the documents and the Minister have spoken of fraud as being the main occasion for these propositions—that if I committed a fraud against Imperial Chemical Industries, against the Surrey County Cricket Club, or, indeed, against the Refreshment Department of the House of Commons, I should be liable to legal criminal proceedings of some kind. I had supposed that if I committed a similar fraud against the European Community in one of its buildings in Kensington Palace Gardens, or indeed elsewhere, I would be liable in an exactly similar way.
What are these offences which some of us might commit against the Community which are not at present offences under our ordinary British criminal law but which apparently would be if these proposals were implemented? I may be wrong, but I think it is a question which some people would ask and which has not hitherto been very clearly answered.
I hope that my hon. and learned Friend may make a little more clear what is the procedure proposed from now on. I understood him to say that before any changes made in our law—and, incidentally, we are discussing an amendment to the Treaty of Rome, as I understand it, therefore this is a serious material matter—could be given legal effect in this country, further enactment would be necessary by this House.
Will this involve full legislation? Will it involve a normal Bill before the House with Second Reading, Committee, Report stages and all the rest? I would have thought that that would have been particularly justifiable, because these are certainly complex matters in which a full and detailed examination cannot possibly be given in one debate lasting a couple of hours. I think that all of us, whether we are lawyers or laymen, would agree with that. Or is it merely proposed, as has happened before, that some rather obscure instrument called a "Definition of Treaties Order", or some- 1512 thing of that kind, will appear on the Order Paper at 10 o'clock, or even later without being clearly designated on the Order Paper, which the Government hope will go through on the nod with many hon. Members not understanding precisely what are its effects.
I hope that we are not proposing to amend the criminal law of this country by any sort of procedure of that kind. Therefore, it would be valuable if we could learn from the Minister exactly what is proposed and what opportunity this House will be given for taking the final decision arising out of these proposals.
§ 8.57 p.m.
§ Mr. Ivor Stanbrook (Orpington)
If these documents appear excessively complicated, the Commission of the EEC has only itself to blame. They are wrapped up in the sort of legalistic European jargon that we have come to associate with all the documents that emanate from the EEC, and they conceal what is substantially a comparatively simple proposition.
With great respect to those hon. Members who have previously spoken, I do not believe that the problem is nearly as difficult or complicated as has been suggested. It is certainly not as new as has been suggested. I agree with the points made by my hon. Friend the Member for Burton (Mr. Lawrence), and the queries which he made, of a substantive and fundamental character, with regard to the documents. Basically we are dealing here only with the realm of extradition law and the law of extra-territorial jurisdiction. We are dealing with an institution in Europe which, created by treaty, has a number of servants who live and operate in different parts of Western Europe, who travel in the area of the European Community and whose domicile and countries of origin may be in different parts of Western Europe. That gives the situation a rather special character, but, fundamentally, the problems that arise from that situation are not so very different from the problems that we have encountered previously when we have had cross-jurisdictional matters of this kind.
It matters not whether a document is properly called a protocol or an amendment to the Treaty of Rome. As I understand it, a treaty will have to be 1513 concluded, to which Britain will have to adhere, which will require legislation of some sort in this House. As the right hon. Member for Down, South (Mr. Powell) said, no treaty is self-enacting. I say "legislation of some sort", because probably it will have to be an order in council under the Extradition Act 1870. When that is done, no doubt the provision of the Extradition Act will be held to apply to the provisions of the treaty, just as they apply to the extradition treaties that we now have with each of the EEC member States.
§ Mr. Jay
The hon. Member said rightly that there are employees of the Community who live and work in one or another part of Western Europe. Surely that also applies to NATO and the OECD. I suppose that frauds have been committed against them, but no provisions or alterations to our criminal law were thought to be necessary as a result of the creation of NATO or any other international organisation.
§ Mr. Stanbrook
That illustrates my point. We are not dealing with any fundamental difference. There are, in effect, special provisions for NATO, under the Visiting Forces Act, for example. Those provisions do not apply outside NATO. What we are dealing with here will be, in practice, an amendment to the extradition provisions which operate between Britain and the other EEC members. In each case the list of extradition crimes will be amended to include certain offences, and we shall have the same problems about disparity of punishments or different systems of law as we have at present in extradition cases.
With extradition, we have to take account of the law of the foreign country, our own law, and the terms of the treaty itself. All those things bear upon the particular offence and the trial of it. Therefore, I see no greater complication than those that arise already from our extradition law, which, goodness knows, is already complicated enough.
The same problem applies in the extension of extra-territorial jurisdiction. There is nothing new here. We face the same difficulties as we have in the past. For example, we already have provisions with the Republic of Deland for the trial of offences committed in Northern Ireland to be held in the Republic. This 1514 is done under the Criminal Jurisdiction Act. It is perfectly true that that Act has not worked, but that is largely because of a lack of will on the part of the Government of the Republic. The point is that the provisions are there and the machinery is there. The jurisdictional problem has been overcome, and that Act would be effective if the Government of the Republic had the will to make it so.
The same thing applies, under the Tokyo Convention Act, with terrorist offences. Under this Act, when the aircraft in which the offence has occurred lands in a country, that country has jurisdiction over the offence, even though that offence may have been committed well outside its own territorial jurisdiction, and even though the flag of the State in which the aircraft is registered might be that of a third country. These are all jurisdictional problems. In other words, our courts are not unfamiliar with these difficulties. They can seek the assistance of the appropriate statute tinder British law.
We also exercise jurisdiction over British subjects who commit certain offences abroad. The Home Office memorandum refers to some of these—for example, murder, offences under the Official Secrets Act, and terrorism. These ate all cases in which British courts are entitled to assume jurisdiction even though the offence was committed abroad.
Although we must necessarily defer to the fears that have been expressed by hon. Members who do not care very much for the EEC, I do not see that their fears can be justified on this occasion. What is proposed is simply an extension to cover cases arising in future and which, for the purpose of good relations between neighbours, should have been provided for in any event.
§ 9.5 p.m.
§ Mr. John
I shall seek to summarise the debate and try to answer the large number of questions that have been put to me.
I am a little disappointed that, apart from a few contributions, hon. Members have dealt with the mechanics of the matter and what will happen later rather than with what is being dealt with now. However, I suppose that, in the nature 1515 of things, that is inevitable. The Government obtain little guidance when hon. Members make such points, but since they have been put, I shall seek to answer them.
Let me state again the intention of the law. This document is aimed at the multinational fraud, in which people in many different countries perpetrate crime. This type of activity would not have been contemplated very easily half a century ago, but it is a fact today. This happens in frauds involving banks as well as other frauds.
My right hon. Friend the Member for Battersea, North (Mr. Jay) could not have been listening to me with his normal care, because I thought I had made it dear at the beginning of the debate that it is possible for serious offences under the provisions of the treaties to go unpunished in certain member States, although our law does not have that defect. I hope that that is clear beyond peradventure.
In countries containing civil courts there are problems arising from the question whether extradition and surrender under a constitution law are possible. We have only to recall the row that blew up between Germany and Italy not long ago over a German war prisoner who, under the terms of the Italian constitution, could not be surrendered. He was in an Italian hospital, from which he somehow escaped. I am not saying that there is a great lacuna in the present law, but the countries of the Nine had discussed the subject of Community frauds and have put forward tentative proposals for further discussion in the Community on the best way to tackle the problem.
The hon. Member for Burton (Mr. Lawrence) asked about the Queen's Advocate. At the stage that we have reached, which is a preliminary examination of the law, it is the job of officials to examine the law in question and to put forward formal proposals. But those proposals have to be scrutinised by the European Parliament and they have also to be approved by Ministers. When that process takes places, it is the Home Secretary and the Foreign Secretary, with the Law Officers, who, as the hon. Gentleman put it, struggle or fight for Britain.
§ Mr. John
I do not think that I should give way on this point. The matter is so clear that it would be an abuse of the House if I were to allow the hon. Gentleman to put a supplementary point to me. It will be the members of the Government, including the Law Officers, who will be fighting for Britain. The hon. Gentleman should be in no doubt on that score.
I wish now to deal with the list of questions put to me by the right hon. Member for Down, South (Mr. Powell). Some of his points tie in with the matters put to me by my right hon. Friend the Member for Battersea, North, and I shall answer some of the points together. Both asked how this provision will be effected. Until we see the scope and nature of the amendments we cannot give a definite answer. The view put forward by the hon. Member for Orpington (Mr. Stanbrook) was probably right. I undertake that before ratification of the treaty the House will be given a further opportunity to consider the matter.
It has considered it at a preliminary stage and I undertake now that when the matter is brought to greater certainty the House will have an opportunity to consider it before it is ratified, so that we are not presented, as the right hon. Member thinks, with something that is immutable even before the discussion takes place.
§ Mr. John
I cannot give that assurance at the moment, but this matter will involve legislation and that will give hon. Members an opportunity of making their points known.
Let me deal with what has happened since the document was introduced. As the right hon. Member for Down, South said, and as I tried to anticipate in my opening remarks, there has been a considerable gap between the initial introduction and the present day, during which very little seems to have happened.
Since my signature was appended to the Home Office memorandum on the subject there has been a Select Committee of the other place, which examined the matter, and there was a debate in the 1517 other place last November. A Select Committee of this House considered it. and today we are debating it. But the European Assembly, which is charged with giving an opinion on the matter—this is what the right hon. Gentleman meant by consultation—has not yet rendered that opinion. There is therefore no touchstone by which we can measure the acceptability or otherwise of that point at this stage.
I reiterate that this issue involves the incorporation of international law, and I do not think that it means consolidation into a supra-national State. The right hon. Gentleman asked me in what way the United Kingdom is not able to deal with this issue at the moment. As I have said, in my view there is no gap in the law and there is no need to alter the basis of our law—which is what the right hon. Gentleman said—or the protection of the procedures in order to accommodate it. During the remaining protracted discussions on this matter the Government will be absolutely clear, in defending the point, that that protection will remain. We are not likely—nor, I assume, is any right hon. or hon. Gentleman—to discard the protections and procedures of the law that has been built up in both countries under separate jurisdictions over many years.
My hon. and learned Friend the Member for Bradford, West (Mr. Lyons) mentioned the question of uncertainty about the venue of trial. Of course, there is no election on the part of a person in this country by which he can choose. If the country where the crime was committed applies for extradition, that application must go through the extradition processes. If that country seeks a transfer of jurisdiction by which it requests a State to try the matter in its own country, the State in question may or may not accede to that request. I re-emphasise that the State to which application is made is not bound to do so, but it must give reasons if it refuses.
We believe that the question of the most suitable place of extradition is one of the points that should be clarified, along with the question of how serious need to be the offences for which a transfer of jurisdiction is requested. The object is to avoid being flooded with a great deal of triviality in terms of frauds, which would not redound to the credit 1518 of any particular person concerned. The frauds that concern extradition and transfer of jurisdiction are those that are committed in one country when the national is in another country.
The hon. Member for Burton asked two questions. One was: what evidence have we to go on? We have the evidence, first, of the Select Committee under the chairmanship of the right hon. Member for Bournemouth, West (Sir J. Eden). That Committee devoted some attention to this matter. Secondly, we have a more detailed Select Committee report from the other place, if the hon. Gentleman had cared to read it. Indeed, if he had read the debate that took place in the House of Lords in November 1977, he would have read the speech by Lord Diplock, which was a masterpiece of clarity on the subject.
The proposal for dealing with defaulting officials does not present a large problem. The problem of Community funds is much larger.
The hon. Gentleman then asked: who negotiates? I think that I have already dealt with that matter. I have said that it is for Minister to negotiate. Who deals with this subject, if and when it becomes an Act of Parliament here, is a matter of jurisdiction to be decided at a later date. I do not think that need concern us when we are considering the merits of the proposals.
§ Mr. Lawrence
As the Minister of State has mentioned the matter twice, perhaps he now considers it important enough to give way. I notice that the explanatory memorandum on two occasions refers to a conference of representatives of the Governments of the member States deliberating on the progress report. It then refers to Ministers of Justice. Whom do we send when a committee of Ministers of Justice is considering the various stages of such a document?
§ Mr. John
Sometimes my right hon. and learned Friend the Lord Advocate attends councils of Ministers of Justice. On one occasion I almost got there. My right hon. and learned Friend the Attorney-General is also involved in the Ministers of Justice conference. There is no doubt that this country is adequately represented at a proper level.
1519 I have answered some of the questions posed by my right hon. Friend the Member for Battersea, North in dealing with other matters. He asked for an assurance that we would not change our criminal law which was made at the time of the referendum and otherwise. I reiterate, in the way that I started and in the way that the right hon. and learned Member for Wimbledon (Sir M. Havers) also started, that these proposals do not involve changes in our law, or in our practice. It will be the Government's task during the negotiations to ensure that British interests are protected. That is a task that we intend to discharge.
§ Question put and agreed to.
That this House takes note of EEC Document No. R/2043/76 on Criminal Law.