European Public Prosecutor’s Office (Proposal for European Union Legislation)
The next item of business is consideration of motion S4M-07576, in the name of Christine Grahame, on behalf of the Justice Committee, on a proposal for European legislation. I call Christine Grahame to speak to and move the motion on behalf of the committee.
Ms Grahame, you have up to five minutes.
16:55
As I heard a groan from my colleague Colin Keir MSP, I will try not to use up the five minutes—I had not even started.
The Justice Committee is breaking new ground today—we are that kind of committee. This is the first time that a committee has brought a motion to the chamber on a breach of the subsidiarity principle.
Before I get into the nuts and bolts of the matter, I will comment on the timescale for consideration of European Union legislative proposals. The committee had one meeting in which to consider, and decide on, an extremely complex proposal, which could have had serious ramifications for the Scottish criminal justice system. It was fortuitous that the Cabinet Secretary for Justice was able to come along to our meeting at very short notice—I thank him for that—to assist us in our scrutiny.
I understand that the Standards, Procedures and Public Appointments Committee will, in due course, look into the handling of EU legislative proposals that raise subsidiarity concerns. I make a plea—I am sure that other campaigners feel the same—that that committee examine the timescales for scrutiny as part of its inquiry.
It is late in the day, so I will not go into the details but, for those members who do not have an in-depth knowledge of EU matters, the subsidiarity principle is that, unless the EU has exclusive competence, action should be taken at the lowest level of governance consistent with the subject matter and objective.
The proposal that was before us would establish a new body—a European public prosecutor’s office—to tackle EU fraud. The motivation for that was EU fraud. The European Commission has identified that suspected EU fraud amounts to around £425 million a year but suggests that the actual amount could be much higher, and we agree. The Commission believes that member states are not able to identify, investigate and prosecute EU fraud effectively and, therefore, that a European public prosecutor’s office, operating supranationally, is needed to protect the EU’s financial interests.
In fairness, I should say that the UK Government does not intend to participate in the proposal and, therefore, it will not affect the UK directly. That said, the precedent that it may set in establishing a supranational body dealing with criminal matters was, in itself, worrying.
The EPPO would have had exclusive competence to investigate, prosecute and bring to judgment those connected to offences against the EU’s financial interests. We understand that that power could be extended to include other related offences. Given the fact that the EPPO would be able to direct investigative activity at national level—the Scottish level—and not only in relation to the EU fraud offences, the committee was unanimously concerned that the proposal would cut across the role of the Lord Advocate as head of the prosecution system in Scotland.
Our EU reporter, Roderick Campbell—who is handy to my right—will explore that and other issues in a little more detail.
We agreed with the Scottish Government that EU fraud could be tackled effectively at member state level. Indeed, that appears to be the case in the UK. We also agreed that the Commission has not made a strong enough case for EU action.
Therefore, the committee agreed that the EU legislative proposal to establish an EPPO does not comply with the subsidiarity principle, as set out in article 5 of the Treaty on European Union.
I move,
That the Parliament agrees that the European Commission Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office (COM(2013) 534 final) does not comply with the principle of subsidiarity as laid down in Article 5 of the Treaty on European Union.
16:59
As the EU reporter for the Justice Committee, I will add a few comments to the convener’s.
Although our remit is subsidiarity alone, it is often difficult to distinguish between matters of subsidiarity and proportionality. I will explore in a little more detail some of the evidence that we gathered that led to our decision.
The UK Government was particularly concerned at the lack of robust evidence from the European Commission to justify the creation of an EPPO with rules of evidence that would apply across the board in all member states, working across the whole union and in all member states. We echo that concern.
We also heard from the cabinet secretary that there was no evidence that the Commission had examined alternatives to establishing the EPPO, such as providing support to member states to improve their effectiveness in tackling EU fraud.
As the convener has said, recorded fraud amounts to about 0.5 per cent of the European budget, or between £400 million and £600 million. Scottish Government officials told us that, currently, there is only one case of EU fraud in Scotland, and about 25 in the UK as a whole, which suggested to the committee that the EPPO proposal was very much a case of a sledgehammer being used to crack a nut.
We were concerned that the EPPO would apply one-size-fits-all rules of evidence to member states, which have their own legal systems. In Scotland’s case, we have our own legal system, although we are not a member state. The proposal could create difficulties in relation to the direction and operation of investigations carried out by the police and other law enforcement agencies. In addition, the one-size-fits-all approach would apply to Scotland without any evidence that the Scottish legal system, or indeed the legal systems elsewhere in the UK, were defective.
The committee, on examining the evidence, was unanimous in its decision that the proposal does not comply with the principle of subsidiarity, and would urge the Parliament to endorse that view.
The question on the motion will be put at decision time.