My hon. Friend, as ever, is completely correct. In the case of the European public prosecutor, the threshold was actually exceeded, and what did the Commission do? It just said that it would go ahead anyway, with complete contempt for our Parliament and the others. That is really what is at stake in these circumstances. It is extremely disturbing. There is no need to enlarge that argument, so I will leave it at that.
We have had a fair description of what the measure is about from those on the Front Benches, so I will simply draw the House’s attention to the fact that, with regard to process, it is unreasonable to expect Parliament to come to an informed view on compliance with subsidiarity within the eight-week time frame allotted for issuing a reasoned opinion without the benefit of an analysis by the Government. The Minister, who may have been drawn into this somewhat at the last moment, would perhaps agree with that; I hope so.
Why was it only at the second time of asking, in a letter sent four days before this debate, that the Government gave a clearer indication of their view on subsidiarity? To put it bluntly, the Government have been prevaricating; they were not clear about their position until very recently. On the substance, however, I welcome the fact that in that letter the Government have belatedly accepted that
“a lack of evidence of necessity renders a proposal in breach of the subsidiarity principle”.
I would have thought that that was an unexceptional circumstance, but I nevertheless welcome it. I also welcome the fact that, given that the Government have accepted that the Commission has not complied with the procedural requirements placed on it to provide a detailed statement appraising compliance with subsidiarity, the Commission
has agreed with the European Scrutiny Committee. We relied on both those arguments in our reasoned opinion, and we are therefore grateful and glad that the Minister has decided to support our proposal.
We note—I would be grateful if the Minister responded to this point—that the Government’s view is still conditional. There is a little bit of fudging going on. They use the phrase,
“if in principle the need were to be established”.
From what source—other than the impact assessment, which lacks the necessary evidence—do the Government think the Commission will be able to establish evidence of need? We also note that the Commission recognises that there is—believe it or not, in relation to a matter of this importance—
“limited statistical quantifiable evidence on insufficient mutual trust between the Member States”.
How, therefore, can there be the slightest justification for action at EU level? These are not mere words; they are about the application of the presumption of innocence in relation to EU law.
On a technical point, the legal base of article 82(2) of the treaty on the functioning of the European Union specifically requires evidence of necessity to facilitate mutual recognition. On the difference between the approach to the European convention on human rights taken by the EU and by the European Court of Human Rights at Strasbourg, I ask the Government to what extent they agree with the paragraph in the Commission’s impact assessment cited in the draft reasoned opinion, as follows:
“The ECtHR’s reluctance to lay down prescriptive requirements in these areas, which can be seen as a rationale for an EU measure. The approach of the ECtHR has not been especially activist in developing detailed and prescriptive rules in the area of Article 6(2) of the ECHR. It has left a margin of flexibility for presumption of innocence and related rights in light of the requirement to balance the fair trial rights of suspects”—
I know that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who is Chairman of the Justice Committee, will appreciate that—
“or accused persons with the general public interest, as well as the diverse legal traditions of Member States.”
The Committee concluded that not being “especially activist” was a trait that we strongly welcomed and should inform the decisions of any supra-national court.
We have produced our report and we are grateful that the Government have somewhat belatedly come to the right conclusions on this. We regret that it is only in the past few days that we have got fully engaged with this subject, but we are now glad that the reasoned opinion will go from this Parliament to the European Commission with the support of the sole Member on the Opposition Benches as personified by the hon. Member for Hammersmith. It is important that we do it, but what worries me is that it looks as though it will be doomed unless other member states come forward. If they are not as interested as we are in the matters raised by our Committee, that will be very sad for the European Union as a whole.
10.15 pm