Considered in Grand Committee
That the Grand Committee do consider the report to Parliament on the application of Protocols 19 and 21 to the Treaty on European Union and the Treaty on the Functioning of the European Union in relation to EU justice and home affairs matters (Cm 8000).
My Lords, you will be aware that the previous Administration made a commitment to this House to table an annual report on the application of the protocols to the treaties relating to EU justice and home affairs matters. This Government have maintained that pledge and duly presented the first such report to Parliament in January 2011, covering the period from 1 December 2009, when the Lisbon treaty came into force, to 30 November 2010. The Committee will be aware that the report covers some opt-in decisions undertaken by the previous Administration as well as those taken by the coalition. I propose to focus on the latter.
Under the current Government, 13 decisions were taken during the period of the report. Two of these were Schengen-building measures subject to the Schengen protocol. This means that we had the right to opt out rather than opt in. Of the 11 remaining measures subject to the opt-in protocol, this Government opted in to six and chose not to opt in to five. The Government have since that period requested a post-adoption opt-in to the directive on trafficking in human beings.
Since coming to office, this Government have considered all opt-in decisions concerning justice and home affairs measures on a case-by-case basis. When making an opt-in decision, we consider factors such as the impact of the measure on our internal security, civil liberties, preserving the integrity of our criminal justice and common law systems and the security of our borders. At the heart of it all is a commitment to keep the national interest at the forefront of our thinking. We will opt in only where we believe it is in the UK’s interests to do so. For this reason we have decided not to participate in legal migration measures on seasonal workers and intra-corporate transferees, which would have impacted on our right to decide who enters the country from outside the EU.
As I mentioned, this report forms part of the package of measures to scrutinise the JHA opt-in brought in by the previous Administration. This Government are committed to those measures and to finding ways to enhance them. On 20 January, the Minister for Europe made a Written Statement to Parliament setting out how we intend to do this. The noble Lord, Lord Howell, made the same Statement to your Lordships’ House on 21 January. Under these new arrangements the Government have committed to set aside government time for a debate on opt-in decisions where there is a strong parliamentary interest. There will be a vote in both Houses on a government Motion on such issues.
The Government must also now report each opt-in decision that we make by a Written, or where appropriate Oral, Ministerial Statement. As with any new process, the key is in finding practical ways to make these arrangements work. The Government have been consulting business managers and EU committees to discuss the detail of these new arrangements. We hope that they will be embedded in a code of practice in the coming months. As I said, these arrangements build on and strengthen the rigorous procedures already in place known as the Ashton commitments.
This and future annual reports are an important part of how we engage with Parliament. The Government are aware that there are debates to be had not just about individual opt-in measures but about the applicability of the opt-in more generally. Accordingly, the report considers some of these issues. I do not plan to dwell on the opt-in decisions taken after this report was tabled as we will present an end-of-year report for December 2010 to November 2011 early next year, but I wish to note briefly that since 1 December 2010 the Government have opted in to a further five measures and chosen not to opt in to two measures.
I commend the report to the Committee and look forward to engaging in a debate on its content.
My Lords, I welcome this first report of the application of the protocols. In doing so, it might be helpful to remind ourselves how these procedures and processes came about in the first place.
I had the good fortune to be a member of the Constitution Committee that considered and scrutinised the last European Union Bill in which the Government proposed these protocols. We heard a great deal from the Government about the strength of these protocols, how cast-iron these opt-outs were, and that they represented—as many Members will remember—the famous red lines that had been drawn around them. The committee kept asking one simple question: what if future Governments, of any side or character, decide to accept the opt-ins and therefore remove some of the red lines that have been drawn around the protocols? We asked what the procedure would be if the Government made this decision, what the form of scrutiny would be, and what sort of approval would be required. The Government of the day had rested their case on the strength of these protocols, which was partly why they claimed there was no any need for a referendum at the time.
The Constitution Committee, of which I was a proud member, felt so strongly about these matters that it took the rather unusual step of producing almost a committee amendment to the European Union Bill to try to establish processes for the approval and scrutiny of opt-ins. I recall that debate very well, because it raised considerable interest in a number of areas of the House and led to negotiations and discussions with the European Union Committee, the Constitution Committee and the noble Baroness, Lady Ashton, and to the procedures we are now partly using.
In fairness, I remember the noble Baroness telling us that we would be surprised by the sheer number of opt-in proposals. Many of us thought that there would be just a handful dealing with fundamental issues. She frequently reminded us that there would be more than we thought and that they would be diverse and often of a technical nature. As a member now of Sub-Committee E, my experience—and I am sure the experience of other members of that committee—shows that her case was valid. We have had something like 20 opt-ins in the last 12 months and are faced with another large collection in the next 12 months. I have found it rather difficult, and I do not know whether other members of those committees also feel this, because of the diversity and sometimes technical nature of the opt-in proposals and directives to establish some common criteria to decide whether or not there should be an opt-in. As the Minister has said, one ends up taking a case-by-case approach, applying common sense and asking whether co-operating, by opting-in, would help to enforce the better administration of certain aspects of justice.
I have come to the conclusion at various times in the last 12 months that it was right to opt in on issues such as human trafficking, combating sexual abuse, the exploitation of children and child pornography, because there is an advantage to having a European approach here. I have been less keen on the road safety directive, which has not proved its cost-benefit potential. I have certainly found in the case of succession that the idea of a succession certificate goes far too far. Our whole notion of succession is very different from that of most of the rest of the continent. There is a gulf larger than the Channel in respect of succession, and I suspect that that gulf will also arise in issues of matrimonial property. Therefore, like everyone else, one takes this case-by-case approach. We are going to be faced in sub-committee with at least another dozen within the next 12 months.
That raises a more general point, which the Minister herself touched on: when one uses a case-by-case approach, one tries to apply the simple common-sense test to the decision or directive that has been proposed, but one should be vigilant and mindful of the cumulative effect of opting in. If we opt in on an increasing number of cases, where will those red lines be that the previous Government drew such attention to? We might see, without necessarily recognising it, an erasing of those red lines. The House and its committees should seriously consider the cumulative effect over a period of the opt-in issues that arise.
I have also been increasingly concerned that many of these opt-in issues raise problems of centralising data on a much wider basis. As someone who, when on the constitutional committees, helped to write a report on the surveillance society, I think that one should be conscious and vigilant that many of these opt-in proposals are associated with the collection of data in increasingly centralised circumstances. I therefore hope that on these issues our House and committees will remain vigilant on the vital issue of opt-ins.
My Lords, I welcome the opportunity to debate the report. I note that it was published in January 2011 and wonder why it has taken so long, since it covers the period until November 2010, for it to be considered in Grand Committee. Some six months have elapsed.
I noticed that there were significant opt-ins that did not attract the parliamentary scrutiny that might have been desirable. I refer to two that are mentioned in the report: the EU/US terrorism finance tracking programme and the draft proposal for the European investigation order. I am also aware of the Attorney-General’s concern, which I think he articulated in a speech to the Institute of European and International Affairs on 13 June. He is concerned about the brevity of the three-month period in which we sometimes need to take these decisions and the operation of the Recess, particularly the long Summer Recess, should these decisions need to be taken around periods in which parliamentary scrutiny becomes more difficult. Apropos the operation of Article 19 of the protocol to the Treaty on the Functioning of the European Union, have we sought to opt out but failed to do so due to the timing of these proposals?
The report is clearly designed for a deeply expert audience. As someone who is not quite as well initiated as other noble Lords, as well as keeping in mind the interests of transparency and to improve scrutiny I suggest keeping in mind the criteria that the Minister herself has touched upon today but that were also articulated clearly in the Attorney-General’s speech of only a few days ago when he said that the Government believe that their justice and home affairs policy is,
“pragmatic, measured and proportionate, having proper regard to Britain's wider interests. We want to ensure that we participate in measures that are in the best interest of our businesses and citizens and that our decisions are informed by the views of Parliament and on rigorous assessments of each measure against a set of criteria. These criteria include: potential impact on the integrity of the UK's justice systems; national security; effects on civil liberties and rights; and the potential regulatory impact of the measure and wider impacts”.
Keeping in mind those four criteria identified by the Attorney-General, as well as page 5 of the report, on which we discuss forthcoming dossiers over the next 12 months, and the report on proposals looking back, perhaps we can consider whether in future reports we might have a narrative explanation alongside each decision that was taken, set against the criteria so that we can see how, given the Government’s declared criteria, those decisions were taken. A narrative explaining what the decisions encompassed would obviously need to be considered if that rather expanded narrative form were taken on board.
Finally, the noble Baroness mentioned the code of practice, and I understand that various government departments are working on this code, which will improve the effective scrutiny of opt-in decisions. I wonder whether she could tell the Grand Committee when she expects this code to be approved and to be ready for implementation.
My Lords, I should preface my remarks by saying that I will concentrate mainly on the matters relevant to the Home Affairs Sub-Committee, which I chair. The noble Lord, Lord Bowness, will be covering the Justice and Institutions Sub-Committee, because we are in a kind of Siamese-twin situation where opt-in issues sometimes fall on his side and sometimes on mine. We do not have any disagreements about which side they fall on, but it sometimes leads to confusion in the audience as to why we have two sub-committees dealing with rather similar material.
I am most grateful to the Home Office for providing the report we are debating today and to the Minister for having introduced the report and the Motion so clearly and comprehensively at a very early date after her assumption of ministerial responsibilities. Both the report and this debate are firsts in the new post-Lisbon process of strengthening transparency and accountability of the Executive to Parliament in a complex area of EU policy-making. As such, they are welcome and will need to be repeated on an annual basis if we are to make a useful reality of these strengthened scrutiny procedures.
As is so often the case with the European Union, it is only too easy to be repelled by the complicated lexicon of acronyms and cross-references to treaty provisions. To assume that this is all about process and not about substance would be a mistake. Many of the measures covered by the report have an important impact on the daily lives and on the security of ordinary citizens. It really does matter, therefore, that the Government get their opt-in and opt-out decisions right and that both Houses of Parliament actively participate in the shaping of those decisions. We must try not to lose sight of the wood as we take a closer look at the individual trees of which it is composed.
We are debating a report which covers the period between 1 December 2009, when the Lisbon treaty entered into force, and 30 November 2010; that is to say that we are already six months out of date, a point made by the noble Baroness, Lady Falkner. I hope that next year we will hold this debate sooner after the tabling of the Home Office’s annual report, ideally within two months of its publication. It will be useful too—perhaps the Minister could say something about this—if the report’s annexe, not the report itself, could be issued in an up-to-date form every six months. That would help the committees to follow the process and to see the wood rather than the trees, if that were possible. I do not think it would put an unreasonable burden on the department; I hope not.
As to the categorisation of the views of this House in the present report, this does leave something to be desired. It said that the House of Lords agreed with the IT management agency opt-in, No. 13. That is only part of the story. We agreed with the decision but not with the way it was done—by relying on an existing opt-in to a different proposal under a different treaty in 2009. I would not ask the Minister to respond to this point; it has been the subject of an enormous amount of correspondence between my sub-committee and the Home Office, at which point we rather decided to accept that we were not going to agree about it. However, we have a serious point which is not reflected in the report. Perhaps a little more care could be taken on that.
As to decision No. 22—on intra-corporate transfers, to which the Minister referred—the note in the report states: “HoL: N/A”. I am not sure what that is intended to signify. In fact, my sub-committee registered our disagreement with the Government’s decision not to opt in to the proposal—I shall not go into all the reasons for it because they are set out in correspondence—and we remain unconvinced by the justifications for opting out provided by the Minister’s colleague responsible for immigration. We believe that the Government should have opted in, but the rather narrower point that I am making here is that the Minister did slightly less than justice to the heroic struggle between us when the report was written. Perhaps in future something slightly more transparent might emerge.
On the process of debating opt-in or opt-out decisions, we are grateful that time was made by the Government in this House to debate the asylum directive in January 2010 and the PNR directive in March 2011, and we welcome the Government’s decision to opt in to the latter. We trust that the Government will maintain that unblemished record for timely debates in the future. We are glad that the Minister for Europe has confirmed to the Commons European Scrutiny Committee that where the Government are considering a post-adoption opt-in—to which the Minister referred—under Article 4 of the protocol, this will be subject to enhanced scrutiny arrangements. Perhaps she will confirm that our committee will be given the time it needs to give its views and, if necessary, to hold a debate on this category of opt-in given that no three-month time limit applies in the case of these decisions—that is to say, they can happen just like that. If the Home Office were to provide a little time for the committees to look at these decisions and if necessary to call for a debate, which is likely to be very seldom, it would be a great help.
As to the draft code of practice, which has been referred to and which is designed to govern the parliamentary and executive handling of these matters, can the Minister confirm that the Council’s secretariat in Brussels has now agreed to a single invariable system for dating the beginning of the three-month opt-in period; namely, that this runs from the date on which the last language translation is published by the Council’s secretariat? Does the Minister agree that there are now no outstanding code-of-practice issues between this House and departments? Therefore the code could surely now be formally agreed between us. The sooner that is the case, the better, because everyone will then know—both the Government and the House—what rules govern this rather complex area.
I have two additional points relating to agreements with third countries. How can it be consistent with the need for legal certainty for the Government to assert, as they do, that the relevant measure does not apply to the UK, when there is nothing in it to suggest that it does not apply equally to all 27 member states? Issues relating to this are, we understand, still being considered with the Commons scrutiny committee. I hope that the Minister will have another look at this. It seems potentially a little unsatisfactory and fragile.
The second point is on the Government’s decision not to participate in the negotiation of a readmission agreement with Belarus. In view of the unsatisfactory state of politics in that country, and of the economic pressure on its citizens to migrate, it was a mistake by us not to participate in the negotiations. We expressed that view in correspondence, and we still hope that a late-stage opt-in will be considered seriously when the agreement is being negotiated—without our influencing it in any way, unfortunately. That does not mean, as was the case with the human trafficking directive, that it would not necessarily be in our national interest to opt in.
I apologise for speaking at some length and in such detail, but the strengthened scrutiny process in which we are participating has no sense or usefulness if it is not taken seriously. I am struck by how closely we now work with our EU partners in this field despite being outside Schengen, and by how many measures we decide to opt into. The figures already given in this debate demonstrate that. The coalition Government are to be congratulated on their pragmatism and open-mindedness. It is surely clearer than ever that, in this highly sensitive area, considerations of interdependence and shared vulnerability are drawing all member states closer together.
My Lords, like the noble Lord, Lord Hannay, I welcome the publication of this first annual report. I am pleased that the Government have maintained the commitment of their predecessor to continue the practice of publishing such a report.
An interesting aspect of the annual report is in a paragraph on page 2, which bears reading out:
“This Government recognises that cooperation on Justice and Home Affairs can deliver key benefits, helping us to tackle cross border crime and to make it easier for British citizens to do business across borders. Such cooperation can also help enhance the UK’s security”.
I read that out because it is as well that we remind ourselves of that fact, particularly having sat through a number of hours of debate on the European Union Bill when you would have thought, from listening to some contributions, that nothing was further from the truth than that paragraph.
I am pleased to say that Sub-Committee E on Justice and Institutions has agreed on the whole with the Government’s approach to many of the proposals that have come before us; as the noble Lord, Lord Rowlands, has indicated, we see a great number. With regard to the investigation order, I say to the noble Baroness, Lady Falkner, that while that decision was taken to opt in, as reported, it is still a live item of scrutiny before my sub-committee.
On balance, we consider the Government’s and indeed the Commission’s case-by-case approach in the field of criminal justice to be the right one. We have seen the road map, the list of measures set out in that document to safeguard the rights of suspects and defendants involved in criminal proceedings. If those are all enacted, there will undoubtedly be common standards throughout the European Union, which will benefit any British citizen unfortunate enough to be caught up in criminal proceedings elsewhere.
It is worth noting that the approach on criminal justice has been quite different from the approach on civil justice. While the sub-committee has welcomed the vast majority of proposals in connection with criminal justice, we have had severe reservations about the proposals in the area of civil justice. Proposals to try to bring common approaches to matters such as succession and the division of matrimonial properties after divorce and the contract law proposals currently being discussed raise huge issues, which, as the noble Lord, Lord Rowlands, has indicated, bring us into conflict not with our partners, the principles or the objectives—many of the objectives are indisputable and worth while—but with different systems and principles of law, particularly in connection with property. Therefore, we have not been able to be as positive about the proposals that have come forward.
I am pleased to say that the sub-committee has generally found itself in agreement with the coalition Government’s approach. I think that there was only one major item of disagreement, where in the first instance the Government did not wish to opt in to the new legislation on human trafficking. We found that logic very difficult to follow. It is at odds with lots of other decisions to opt in that the Government took quickly. However, I suppose that one must always rejoice in those who repenteth, because eventually the decision to opt in was indeed taken.
Perhaps I may raise two other issues, as they are relevant to this report. I am extremely concerned about the provisions in the EU Bill. One matter is stated in this report, so I consider myself to be in order in mentioning it. I refer to the statement that in no circumstances will the Government consider an opt-in to any proposal for a European prosecutor’s office. I believe that that is a mistake because we do not know what the circumstances will be should the need for a European prosecutor’s office arise. I have no doubt that, were we to find that there had been huge fraud in respect of European Union funds and that some member states were unwilling—whatever the reason—or unable to take action, there would be great demands from the public to know why something was not being done. This is all hypothetical but if it were ruled out altogether and then, in the Bill, made subject not only to an Act of Parliament but to a referendum, that referendum would, I am the first to admit, be almost impossible to win because of the climate of public opinion. It is a pity to have such a statement because, as I said, we do not know where we will be in the future.
Lastly, perhaps I may ask the Minister about the decision that has to be taken by May 2014 in respect of the pre-Lisbon treaty police and criminal justice instruments. At the moment they remain unamended and, unless we opt out, they will become subject to the Commission’s infringement proceedings and the jurisdiction of the European Court of Justice. I am advised that that will be not an item-by-item decision but an all-or-nothing decision. In two Written Questions I have asked how many such instruments there are. In the last Answer I was told that there are somewhere between 80 and 90. The estimate is not mine, because I cannot remember; it is the Government’s estimate given in the reply. The whole thing is subject to consultation with the Commission. I say to the Minister that it is very odd that we as a Government of the United Kingdom cannot say how many instruments are applicable and form part of the law of this land on a given day. I accept that if they are amended between now and the relevant date the number will change, but I think that, first, we should know and produce as quickly as possible a list of the instruments that are effective and in force on a given date so that those who are going to have to consider the ramifications of the decision—it has to be made by May, whatever it may be—know precisely what the topics are. I think that some of them will be of considerable importance.
My Lords, the Minister referred to the Written Statement in the other place by the Minister, Mr Lidington, on 20 January, which was repeated by the noble Lord, Lord Howell. I should like to press the Minister on what Mr Lidington, said in debate on 26 January, which comes somewhat later and is very precise. He said:
“The decision on whether to exercise the bloc opt-out is important and sensitive for the United Kingdom”.
He agreed with Mr Jenkin on that point. He went on:
“Its implications for the whole range of complex, technical and often interrelated measures concerned will need to be carefully considered, and they ought to be carefully considered by Government and Parliament”.
He then said—and this is the point that I want the Minister to clarify:
“I agree completely that Parliament should give its view on … a formal decision on whether we wish to opt in or out”.—[Official Report, Commons, 26/1/11; col. 399.]
That is not just a debate that follows any lifting of the scrutiny reserve—as your Lordships know I regard that as pretty well completely useless because it has been overridden hundreds of times in the past few years and Brussels never takes any notice of it anyway—or this commitment from the Government; as the Minister and other noble Lords have mentioned, we have been opting in to some of this stuff along the road. I understand that if we agree to an amendment of it, it becomes cast in European law. The question for the Minister is: what is to be the enduring value of Protocols 19 and 21? Upon what will both Houses of Parliament be able to vote when the time comes? I put this in an Oral Question to the Government six weeks or so ago. The noble Lord, Lord McNally, answering for the Government, said that the subject was really too delicate to discuss in public and that he would give it some thought and come back to us. Have the Government given it that thought and what is the answer?
Where do this Government stand on this matter with their EU Bill? Do they envisage any of the JHA opt-ins being subject to a referendum of the British people? Where do we stand on a vote, not just a debate, in both Houses of Parliament, which was promised on 26 January? Where do we stand on the EU Bill, assuming that the Government have the sense to put back into it all the parts that were foolishly excluded by your Lordships' House?
My Lords, the Minister has set out the background to the report that we are considering. As she said, Protocols 19 and 21 to the Treaty on European Union and the Treaty on the Functioning of the European Union govern our participation in European Union measures on justice and home affairs. Under Protocol 21, we can, within a laid down three-month period of a proposal or initiative being presented, decide whether we wish to be covered by such measures on justice and home affairs. If we do, we cannot then opt out at a later date. Under Protocol 19, we can also request to take part in some or all provisions of the Schengen acquis.
As the Minister has said, the report that we are considering today follows a commitment given by the then Government in 2008 to make an annual report to Parliament on the application of the opt-in protocol over the period covered by the report and on the Government’s approach over the coming period to EU justice and home affairs policy, including the application or otherwise of the opt-in.
The report before us covers the 12-month period since the Lisbon treaty came into effect at the beginning of December 2009. As other noble Lords have done, we welcome the report and the fact that the Government have decided to adhere to the commitment to produce such a report, which was given by the then Leader of your Lordships’ House, my noble friend Lady Ashton of Upholland. The commitments made by the then Leader of the House also included arrangements to ensure that the European Scrutiny Committee of this House and the European Scrutiny Committee in the other place have sufficient time to undertake their valued and valuable role of expressing a view to the Government on whether the United Kingdom should opt in to a proposal or not.
A commitment was also given, as has been said, by my noble friend Lady Ashton to produce a code of practice on the scrutiny of opt-in decisions. Will the Minister indicate, as the noble Baroness, Lady Falkner, did, when the code of practice is likely to be finalised?
I believe an undertaking was also given that, in order to ensure that the enhanced security measures were working effectively, there would be a review of the arrangements three years after the entry into force of the Lisbon treaty. It would be helpful if the Minister could say whether it is the Government’s intention to undertake that review at the appropriate time.
The report we are discussing sets out the 23 justice and home affairs decisions taken under the JHA opt-in protocol and the Schengen opt-out protocol during the 12-month period covered by the report. Inevitably, the report does not give an up-to-date picture, since we are discussing a report that was presented to Parliament last January and the situation has changed in respect of at least some of the matters mentioned, for example on human trafficking. I join other noble Lords in expressing the hope that it may prove possible to have this debate rather nearer the date of publication of the report in future years. Perhaps the Minister could comment on whether this can be achieved.
I do not wish to repeat the thrust of debates that have already taken place on individual measures and proposals referred to in the report. However, there is a section in the report on legislative proposals that it is expected will be brought forward in 2011 but which are likely to require a decision on UK participation under the JHA opt-in protocol. Bearing in mind that the report is dated January 2011, is the Minister able to say whether the list in the report of expected legislative proposals for this year is still accurate?
In the paragraphs on their approach to European justice and home affairs, the Government state that they recognise that co-operation on justice and home affairs can deliver key benefits, helping us to tackle cross-border crime and to enhance the UK’s security, as the noble Lord, Lord Bowness, pointed out. The paragraphs also refer to the Government’s belief in the importance of practical co-operation on asylum policy within the EU.
As I understand it—I may be wrong and if I am I am sure I will be corrected—in around three or four years’ time the Government can decide to accept European Court jurisdiction over justice and home affairs. If we did, it would mean that we kept the opt-in on matters such as the European arrest warrant and returning asylum seekers back to the country from which they came. Alternatively, the Government can refuse European Court jurisdiction over justice and home affairs, which would mean that we would have to opt out of the kinds of matters, such as the European arrest warrant, that have helped lead to the arrest of people involved in bombings, and we would also have to opt out of the provisions on returning asylum seekers to the country from which they came.
Will the Minister say whether the Government are now considering this issue and what the decision should be, and whether, if we did refuse European Court jurisdiction on justice and home affairs, or indeed if we accepted European Court jurisdiction, the Government would deem that either one or both of those alternatives was a change in the treaty necessitating a referendum?
My Lords, this has been a constructive debate and I am grateful as this is the first time I have taken these measures in front of your Lordships’ House and this Committee. The Government have committed to increasing our engagement with Parliament on European issues and on the opt-in in particular. This and subsequent annual reports, as well as this debate, are certainly going to help to inform the way in which they are structured in the future. I have been very interested to hear many views across the Chamber today, which will be very helpful in informing and shaping the way in which we continue to report to Parliament.
The noble Lord, Lord Rowlands, mentioned the very important factor of the accumulative effect. He also raised the question of how the red lines might be affected in light of that. It is an important issue that I will take back to the department to look at the implications for accumulation and whether that affects the way in which red lines have been established. I hope he will accept that I think it is a very good point that we should consider. He also raised the question of the vigilance of committees. I quite accept that, and I will come later to other points that have been made about the work of committees, in which noble Lords in this Room play a significant and important part.
The noble Baroness, Lady Falkner of Margravine, and the noble Lord, Lord Rosser, mentioned the time taken to bring this report. We would like to have had this debate much earlier, but debates are in the hands of the business managers and this was the first time this slot was available. I will report to business managers noble Lords’ concern that the lead time between the report being published and holding the debate needs to be narrowed if the debate is to have more meaning and relevance. Noble Lords have made that point well and I apologise that there has been a long lead time in debating this first report.
The noble Baroness, Lady Falkner of Margravine, and the noble Lord, Lord Rosser, talked about the code of practice. A draft code of practice is at an advanced stage, but we want the code to take account of the new scrutiny arrangements announced by the Minister for Europe. Settling the detail of this has meant it has taken longer than we hoped but we expect to finalise it in the early autumn. It is on its way—it is not here yet—but the work is well progressed.
The noble Baroness also said that we failed to opt out under Protocol 19 due to the timing of these proposals. Protocol 19 gives us three months to opt out of measures to build on the part of Schengen in which we participate. During the time of the report, there have been two such measures by which we consciously decided to remain bound. We have therefore not failed to opt out but, in line with the coalition position, we have taken each decision on a case-by-case basis.
The noble Baroness and others—the noble Lord, Lord Hannay, touched on this—also raised the need for more narrative and explanation in future reports and the need to explain each decision more. Those are very well made points, and in the interests of transparency I see no reason why future reports should not take account of those views. It would certainly be very helpful, particularly for accuracy, if those narratives were put in place, so I am very happy to put that forward. We set out our reasons for each opt-in decision when we report them to Parliament by Written Ministerial or Oral Statement. I apologise to the noble Lord, Lord Hannay, that I had not spotted that it said “House of Lords N/A”. That is extremely discourteous and I apologise to him unreservedly. I will ensure that there is a proper explanation and that no comment such as that, which is quite derisory, will appear in future reports and I am grateful to him for drawing it to my attention.
Perhaps I may move on to some of the other points raised by the noble Lord, Lord Hannay. He mentioned the agreement with Belarus. We decided not to opt in, because we did not believe that the agreement would deliver clear benefits for the UK. The number of illegal immigrants removed or deported to Belarus is very low, and the UK Border Agency already has good co-operation with the Belarus authorities. The decision was taken for that reason. Also raised was the question of dates—when the last language version is finalised. The noble Lord, Lord Hannay, made a good point about that. We have agreed that that is the appropriate approach, and will ensure that it is reflected in the code of practice when it comes.
The question of Committee time for debate, when there is no three-month period, is a difficulty. However, we will always seek to accommodate a request for a debate on an EU measure. Given that we have only the three months to take opt-in decisions at the start, we need to work closely with the business managers. In the same way that we will discuss with them the lead time for the debate to come forward, we will ensure that they are fully aware of the three-month timeframe required. There is an opportunity for more flexibility in this. For a post-adoption opt-in, of course we have a little more time. Particularly for parliamentary time, three months is very narrow, but we will ensure that the business managers are aware of the need for proper and timely scrutiny.
The noble Lord, Lord Hannay, also suggested that the annexe issued could be kept up to date for everyone in the form of a six-monthly submission. It should be possible to send that to both committees. It is a good suggestion. We will write, setting out our analysis of the priorities for the next six months, and then hope to make that a routine part of the way in which we keep committees informed, particularly of the upcoming business.
The noble Lord, Lord Bowness, raised the subject of the European public prosecutor. I was rather uplifted by his initial remark that there was only one thing on which his committee had disagreed; I shall now disappoint him tremendously. The Government have made clear that we will not opt in to a European public prosecutor. We understand that the Commission proposes to create such an office in the next two to three years, but the UK does not support it and will not participate. Having said that, I am sure that the noble Lord will want to engage in further debate with us about it, which we would welcome; but that has been the Government’s position and it still stands.
The noble Lord and others also referred to the right to opt out of all existing police and criminal justice measures from 1 December 2014. That is when the European Court of Justice jurisdiction will take effect. We have to make the decision no later than May 2014, of course. I do not wish to dodge the question. I say that particularly to my old friend the noble Lord, Lord Pearson, because I understand from his remarks that he has had some unsatisfactory answers to it. The fact is that the Government will use the intervening time—we have that time—to consider carefully the many different factors and implications of the decision, including proper analysis of its cost and particularly the legal implications. We have no intention of making a premature decision on the matter, which I know will disappoint the noble Lord, Lord Bowness, but I hope will give some crumb of comfort to the noble Lord, Lord Pearson of Rannoch.
I am most grateful to my erstwhile noble friend, but could she be precise as to whether the Government intend to fulfil the commitment given by Mr Lidington that,
“the Government have committed publicly to having a vote in both Houses before making a formal decision on whether we wish to opt in or out”?—[Official Report, Commons, 26/1/11; col. 399.]
That was really my main question. Everything since then refers to Parliament being kept informed and to debates and scrutiny, none of which is worth anything compared with a vote in both Houses.
While I am on my feet, I may as well repeat my two questions. What will be the enduring value of Protocols 19 and 21, and upon what are both Houses going to be able to vote? Those matters are central to this debate and, if the noble Baroness does not know now, perhaps we should come back to them fairly soon.
I am very grateful. I was about to move on to that. I reassure the noble Lord that, as my right honourable friend David Lidington said, we will have a vote in both Houses if the Government decide to opt in under Protocol 21 or opt out under Protocol 19. That commitment was made by the Minister in the other place. It still very much holds good and is the Government’s declared policy. I hope that that reassures him on that point.
I think that the noble Lord also raised the question of a referendum—
I am sorry to interrupt the noble Baroness and am grateful to her for giving way. As the noble Lord, Lord Pearson, has repeated his view several times in an attempt to get the Minister to state positions prematurely, I want to record that my committee thinks that the Government should take the fullest amount of time necessary to weigh up what will be an extremely important set of decisions. We do not think that the noble Baroness should be rushed into making premature statements of what that decision will be. These are very complex matters that will not be easy to decide, and I do not think that my committee would in any way wish the Minister to be moved towards premature clarification.
I do not wish to make a habit of interrupting the Minister but perhaps I may repeat the question that I asked earlier. I understand that it takes time for this consideration, but is there any reason why we cannot have a definitive list of the instruments that are in force? I appreciate that the number may vary if they are amended between now and then, but can we have the definitive list of measures? It seems very strange that we are unable to give a positive answer to a Parliamentary Question.
That is not an unreasonable request and I assure the noble Lord, Lord Bowness, that I shall write to him with the definitive list as soon as I am able to do so.
I want to finish with the points made by the noble Lords, Lord Pearson and Lord Hannay. We are going to consider this matter very carefully, so there will be no rushed decision. However, the commitment to a vote in both Houses remains very firm.
My Lords, I think that the noble Lord is trying to seduce me into setting out the wording of a decision that has yet to be made, and I am not in a position to do that. Therefore, I am sorry to disappoint him but, as I understood it, his initial concern was about whether the important commitment to both Houses remains good. It certainly does.
The noble Lord, Lord Rosser, asked about forthcoming decisions. I am going to read out a very short list and I assure the Committee that I shall not take up too much time in doing so. Forthcoming decisions—ones that are about to be published and will require an opt-in decision—include: the directive on the rights and support of victims of crime; the European protection order civil measure; the recast asylum procedures directive; the recast asylum qualification directive; the EU/Australia PNR arrangements; the EU/US PNR arrangements; the EU/Canada PNR arrangements; the proposed regulation on the freezing of bank accounts in the European Union; and the proposal for a directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest. I hope that he will also find helpful the commitment I have given to the noble Lord, Lord Hannay, on the six-monthly updates. That information will be extremely helpful to the Scrutiny Committee and across the wider House. The noble Lord asked about the 2014 opt-out decision. I hope he feels that I have given a comprehensive answer to that point, which was raised by several other noble Lords.
I suspect that I may not get an answer to that, but I asked whether it was felt that either alternative would constitute a change in the treaty and would require a referendum: that is, whether the decision either to opt in or not to opt in to ECJ jurisdiction would be regarded as a change in the treaty and would require a referendum.
My Lords, I will need to write to the noble Lord on that important point. Our refusal or acceptance of ECJ jurisdiction does not constitute a change that requires a referendum. However, I will write to him explaining why that is the case. The noble Lord also asked about the need to renew the provision after three years following the entry into force of the security measures in the Lisbon treaty. I will also need to write to him on that matter.
I am most grateful to everyone who has taken part in this debate. In closing, I would like to take a quick look to the future. We cannot say with complete certainty exactly what proposals over the next year will require an opt-in decision. In the report, we have indicated what we expect to happen, based on work programmes and discussions with our European partners. We will try to update that with a six-monthly paper.
The Government have been very clear that they will take these decisions on a case-by-case basis, so I hope noble Lords will understand that it would not be appropriate for me to comment at this point on whether we will opt in to any particular new proposal that might be brought forward in the next few months. However, I can reiterate our commitment, as set out by the noble Lord, Lord Howell, in his Written Ministerial Statement of 21 January, to give Parliament as much opportunity as possible to comment on and influence future opt-in decisions. The Government take very seriously the commitments contained in that Statement to give Parliament more say in opt-in decisions. It is very important that we make these new arrangements work. I am grateful for the suggestions made in today’s debate, which we will take forward.
Between now and the Summer Recess we have decisions to make on recast proposals on asylum reception conditions and asylum procedures, on a directive on access to a lawyer and on a proposal regarding the rights of victims in criminal proceedings. Those issues are included in the list that I recited to the noble Lord, Lord Rosser. We await the views of the European Union Committee on those proposals and will report our decisions to both Houses. The next annual report, covering the period 1 December 2010 to 30 November 2011, will be laid before the House in due course. I will use every endeavour to ensure that there is not such a long gap between that report being laid and the opportunity for the House to debate it.