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Parliamentary Scrutiny of EU Business

Volume 505: debated on Thursday 4 February 2010

To ask the Chancellor of the Exchequer if he will make a statement on the Government’s apparent intention to breach the undertaking to Parliament about the time scale and process for opt-in decisions in relation to the European Union (Amendment) Act 2008.

As the House will be aware, on 30 November 2009, the European Union signed an interim agreement with the United States to permit the sharing of SWIFT data for the US terrorist finance tracking programme. As the European Scrutiny Committee noted in its response to the Government’s explanatory memorandum on the subject, we believe that the programme is a valuable counter-terrorist tool. I have today written to the European Scrutiny Committee setting out that it has come to our attention that the agreement will be subject to an expedited conclusion, and that the European Council’s intention is to conclude it once the European Parliament has voted on it. That will not permit Parliament the usual eight weeks to scrutinise the UK’s decision to opt into the agreement. I deeply regret that, and can only stress to the House that that in no way represents a weakening of the Government’s commitment—[Interruption.] Allow me to finish. It in no way represents a weakening of the Government’s commitment to allow Parliament full scrutiny of any opt-ins in the field of justice and home affairs. I would like to explain the reasons behind the UK’s decision to opt in.

First, the commitment given by Baroness Ashton during the passage of the European Union (Amendment) Act 2008 was based on the fact that the UK would have a period of three months in which to decide to opt into any justice and home affairs agreement. However, in this case, the conclusion of the agreement is subject to an expedited timetable. The European Parliament may vote on the conclusion of the agreement on 9 February, with the Council concluding it shortly thereafter. The expedition is necessary, as this agreement is crucial for global security. An interruption in the flow of SWIFT data would weaken the terrorist finance tracking programme, which would not be desirable.

Secondly, the agreement is only an interim agreement. It will last for 10 months, when it will, I hope, be replaced by a permanent agreement. The permanent agreement will be decided with the full participation of Parliament at every appropriate stage in the negotiation. Thirdly, the agreement was negotiated before the Lisbon treaty came into force and, as such, on the basis of unanimity rather than qualified majority voting, as is now the case with justice and home affairs dossiers. Lastly, the final text of the EU-US agreement was taken by the European Scrutiny Committee and cleared by it in advance of the agreement being signed.

I believe that it is crucial that the UK opts into the conclusion of the interim agreement, as the national security benefits are significant. However, I assure the House that the Government have made it clear to the European Union that this is an exceptional case in which there are compelling reasons for not having the full three months available to decide to opt in, and that the UK expects the full time in future arrangements.

I thank the Minister for her reply. I think that we both agree that an important undertaking was given to Parliament on this issue. During debate on the Lisbon treaty, when I defended our case to ratify it, I was assured by Ministers, right up to the Foreign Secretary—and also in the Liaison Committee by the Prime Minister—that the undertakings that there would be proper scrutiny of opt-in decisions would be adhered to. During the passage of the European Union (Amendment) Act 2008 through the House of Lords, a statement—printed in full in appendix 1 of the House of Lords European Union Committee’s second report of Session 2008-09, HL 25—was circulated to peers debating the Bill. The relevant debate can be found at columns 374 to 377 of the House of Lords Hansard for 9 June 2008. In it, the then Leader of the House of Lords, Baroness Ashton, gave a binding assurance that Parliament would have eight weeks to look at any proposed opt-ins.

Although the European Scrutiny Committee might find that the substance of the proposal was not contentious if it had a proper amount of time to scrutinise it, it is clearly in breach of the Government’s undertaking to Parliament about the time scale and process for opt-in decisions. This is the first instance of the post-Lisbon treaty imminent opt-in decision, and the assurance given by the Government is on trial. This breach of that undertaking is therefore a very bad start to the new process.

The original document has been with the Government since November 2001, and the explanatory memorandum was cleared by the Committee on the basis that the opt-in conclusion, whatever it might be, would come to us with proper time for discussion. It is clear that someone is treating this Parliament with disdain and contempt.

The Minister said that the protocol regulating the opt-in “generally” permitted three months for the UK Government to be notified about a proposal, but I thought that it would always be permitted that amount of time. To say that the European Council is not required to give us three months is an abdication of the assurance that we were given. I think that Parliament is being treated with contempt, possibly by the Government. The European Council wants to sweep this issue aside, but surely the Government should say, “No. This is a cast-iron guarantee we have given to our Parliament. We will not sign up to this until Parliament has had the proper eight weeks for scrutiny.”

It cannot be that much of a crisis, but we are worried once again that the EU will push proper process aside and that the Government will simply fall over and let it do what it wishes.

First, I want to make it clear to my hon. Friend, as I did in my original response to his urgent question, that we deeply regret this situation. It is in no way intended as a slight to Parliament, but we have to look at what the effect of not opting into the agreement would be. We believe that not opting in would not be in the interests of this country. There are significant reasons why we should opt in. Because the agreement was reached under unanimity, it is implied that all states will opt in. In coming into effect, this agreement bridges the gap, so to speak, between the previous unanimous procedure and the new qualified majority voting procedure.

We have, of course, the option not to opt into the agreement and to go through another period of parliamentary scrutiny, but I believe that that would not be in our best interests. [Interruption.] We fought very hard for this agreement, so that we could get the information that we need to track terrorist financing. I do not—[Interruption.]

Order. May I ask the Minister to resume her seat momentarily? I recognise that this issue has provoked real irritation, but what I say to Members who are wittering away from a sedentary position is that they will get their chance to question the Minister. I am giving them that chance, but they must contain themselves meanwhile.

As I was saying, we believe that there are exceptional circumstances in this case. I point out to the House that Baroness Ashton’s statement recognised that there could be cases or urgency, and we believe this to be one.

But Parliament was assured by Baroness Ashton, who is now the EU’s High Representative, that we would have eight weeks to scrutinise opt-in decisions. Will the Minister explain: given that SWIFT was signed in November, why was it not referred to the European Scrutiny Committee until just days before the Government decided to sign up to it? Why did the Treasury ignore the assurances given by Baroness Ashton in June 2008 that Scrutiny Committees would be given eight weeks to look at these decisions? What steps did she take to ensure that there was proper parliamentary scrutiny of the agreement?

Does the Minister accept that when assurances are given to Parliament about scrutiny they should be respected and Parliament should not be ignored? Does the Minister accept that this is a serious breach of an important undertaking by the Government and that it is vital to ensure proper scrutiny of decisions taken by the Government in this Parliament?

Is there not a pattern here? Last week the Supreme Court quashed the Government’s terrorist asset-freezing orders and in its ruling said:

“the Court’s judgement vindicates the primacy of Parliament, as opposed to the Executive”.

As a consequence, from 9.45 am today until emergency legislation is passed next week, terrorist suspects can access their assets. Let us be clear. As we speak, there is no law in place to prevent terrorist suspects from accessing frozen assets, despite the Prime Minister’s repeated assurances. As a result of their incompetence, the Government have failed in their primary duty to protect their citizens.

I reiterate that this is in no way intended to be a precedent that parliamentary scrutiny will be overridden. I go back to the original question of my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty). We had to conclude agreement by 30 November because it was the last opportunity to adopt the agreement before the Lisbon procedures took effect, and we had unanimous agreement among member states. Otherwise, all the negotiations would have had to start all over again. That would have meant a delay of six months or more during which the programme would have been unable to function correctly. It was possible, within the time scale, for the matter to go through the appropriate procedure for Common’s parliamentary scrutiny.

I come back to the point that unanimity means that it is implicit that all member states will opt in. The question being asked today is whether we have parliamentary scrutiny over the opt-in, and of course, under ordinary circumstances, we would expect that to happen. Because we recognise that this as an exceptional case, we propose not to exercise the opt-out but to opt in.

With regard to the asset-freezing case referred to by the hon. Member for Fareham (Mr. Hoban), my right hon. and learned Friend the Leader of the House will be announcing at business questions that on Monday we will be taking all stages of the Terrorist Asset-Freezing (Temporary Provisions) Bill.

The Government gave a clear and unequivocal undertaking that they would allow Parliament eight weeks to scrutinise opt-in decisions of this type. The Minister now seems to be confusing, in her mind or her remarks, process and undertaking with outcomes. Will she turn her attention to the following points?

On civil liberties, my understanding is that Germany and Austria were concerned about sharing information with third parties, and along with Greece and Hungary abstained when the EU voted on the matter last November. So it is not as non-contentious as the Minister appears to imply. Furthermore, as I understand it, genuine concerns have been expressed that when so-called pin-point requests are made for data that cannot be acceded to, all relevant data are supplied, including names, addresses and personal identification numbers. Therefore, there is all the more reason to look at this case carefully.

Am I right in my understanding that the European Parliament was given only a limited time to undertake scrutiny on this process, and that it was signed off the day before the Lisbon treaty came into effect? Does that not further confirm, in my mind and that of every other hon. Member, that we should be given the full eight weeks to look at this matter rather than one week, which is a reneging on the undertaking given by the Government themselves?

I want to address some of the hon. Gentleman’s concerns about data protection. The European Commission designated the French counter-terrorism judge, Mr. Jean-Louis Bruguière, to the issue, and he produced a report which confirmed the accuracy of the US Treasury Department’s representations to the EU on data protection practices. He concluded that the programme has generated significant security benefits for the EU. The new agreement improves the protection afforded to EU citizens compared with that under the previous programme, which was done under a US Treasury subpoena.

Under the proposed agreement, the decision to authorise transfer of data to the US Treasury Department will be made by a European judicial authority, which must verify the legality of the request. The agreement provides for reviews of the way that it is operating so as to assess, in particular, compliance with data protection safeguards. While there were some concerns from other member states, that is the reason why the agreement has only a 10-month life, which means that there will be a new agreement that will have full scrutiny in all parts of this House and all parts of the EU. As I say, it is important in this case that we maintain the programme; that is why we have taken the decision that we will opt into the programme in the interests of national security and of protecting against terrorist financing.

I thank you, Mr. Speaker, for allowing this urgent question, which is very important. Can I urge the Minister not to mistake the substance for the process? The anger on these Benches is not about the agreement, but about the fact that Parliament has been reassured, time and again, particularly post-Lisbon, that we have proper processes—and what happens then? On the very first occasion post-Lisbon, we again find that Parliament is just some irritating thing that has somehow to be dealt with. The Leader of the House is also sitting on the Front Bench. This is simply not good enough—Parliament needs to be respected, and it has not been on this occasion.

I recognise my hon. Friend’s concerns, but I would only repeat that this agreement was reached before the Lisbon treaty came into effect, so, in a sense, it straddles the two agreements. That is why this is right in this case.

The Minister has just said that this is not intended to be a precedent, but does she accept that it is a precedent, and that it is a precedent to prove that the promises that were repeatedly made throughout the Lisbon treaty process that there would be an increase in the powers of national Parliaments have been completely jettisoned in the most ramshackle manner? Her windbaggery today, if I may say so, demonstrates the fact that there is no real respect for this Parliament and that the procedures are simply being washed to one side.

Given that I am noted for my rather concise and to-the-point remarks in normal cases, I rather take exception to the word “windbaggery”, particularly from the hon. Gentleman. I can only repeat that this agreement was made prior to the Lisbon treaty, and it in no way undermines our commitment to full parliamentary scrutiny. This is an exceptional case and one in which I think that the right decision has been made.

Does the Minister recall that during the debates on the Lisbon treaty we were assured in terms that scrutiny rights for national Parliaments would be enhanced? Is it not therefore a disgrace that at this first test the Government have forgotten and breached their promises and are signing up to very sensitive criminal justice matters that go to the heart of parliamentary democracy without the promised parliamentary scrutiny? Does not this show not only that the public were let down by not having the promised referendum on that treaty, but that Parliament was misled during those debates and therefore voted under a misapprehension on assurances that the Government were not sincere in giving?

If this were the first agreement under the new Lisbon treaty and under the qualified majority voting procedures, I could have some sympathy with the right hon. Gentleman’s view. However, as the agreement was made unanimously before qualified majority voting, I do not agree.

The Minister has tried to put the defence quite strongly, but the truth of the matter is this—I will read from her own letter to my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty):

“The Council takes such a view in this case and is therefore expediting adoption as soon as the European Parliament gives its assent, which could be as early as 9 February. This means that on this occasion the Government is unable to grant to Parliament the agreed period of eight weeks to scrutinise the decision”.

That tells us that this Chamber is being taken for granted. It is totally unacceptable, and it is about time that Ministers took responsibility for their actions and failures.

I am more than happy to take responsibility for my actions. I believe that it is in the best interests of this country that this agreement goes ahead, and that is why on this occasion I am prepared to allow the opt-in. To opt out would send totally the wrong message about this country’s commitment to tackling terrorism and stopping terrorist financing going around the world.

I feel very sorry for the Minister, who is being left almost in splendid isolation; the Deputy Prime Minister has come to her rescue. Does the Minister not understand that we do not want the Executive’s decision on this—we want Parliament’s decision? It is not the Executive’s decision but Parliament’s decision that is required.

I can only return to the points that I originally made. The European Scrutiny Committee had the opportunity to scrutinise the original agreement, and it did. The agreement was made under unanimity. We are talking about keeping a regime going. The agreement is for only 10 months. This is in order to allow full scrutiny in all parts of the European Union, including this House, to ensure that the final agreement that we end up with is one of which everyone has had the chance to be part.

Does the Minister not understand that there is deep concern and fear in the country about the European process, and that this decision is feeding the siren calls from those who wish to leave the EU? If eight weeks was not possible, why did the Minister not find another process and come to the Floor of the House to say, “These are the issues”, so that, as was suggested, we had scrutiny of the proposal, even if it was not in its original form?

I think that I have made that clear. I accept that many people in this country have concerns about the European Union. I also suggest that many people in this country have deep concerns about terrorism and how the financing of that terrorism goes around the world. Because the actual agreement has been scrutinised under Commons procedures, I feel that in this case it is acceptable to go to the opt-in, given that it is a temporary agreement and that it was agreed before Lisbon came into force, and given that the House will have ample further opportunity to scrutinise the new agreement. It is not the first test under the Lisbon treaty.

The Minister is missing the point. This is not about the substance—it is about the process. Undertakings were given for this House to make the decisions, and at the first opportunity the Government have broken their word. The Leader of House, who is sat next to the Minister, has clearly failed in her duty to look after the interests of this House and has put the Government first. Why did the Minister not refer this matter to the European Scrutiny Committee at the earliest opportunity rather than leaving it to the last possible moment?

This is not the first opportunity under the Lisbon treaty. I have to balance the wider interests of people in this country against the proliferation of terrorist finances. Given that the substance of the agreement had been scrutinised under this House’s procedures, the only other option that I had was to opt out of this agreement, which would send totally the wrong message about whether this country—[Interruption.]

Order. I say to Mr. Cash that he has asked a very full question, and I am sure that the House is grateful to him for doing so, but he really must exercise what self-restraint he is able to muster in the circumstances.

I assure the House that we take our responsibilities on terrorist financing very seriously, and that I take my responsibilities to this House very seriously. This is an exceptional occasion in which, given all the points that I have made, I think that we should agree to this opt-in, and that is what I intend to do.