Motion to Agree
That this House considers that the United Kingdom should opt out of all European Union police and criminal justice measures adopted before December 2009 and should seek to rejoin measures where it is in the national interest to do so; endorses the Government’s proposals in Cm 8671; and invites the European Union Committee to report to the House on the matter before the end of October, before the Government opens formal discussions with the Commission, Council and other Member States prior to the Government’s formal application to rejoin measures in accordance with Article 10(5) of Protocol 36 to the Treaty on the functioning of the European Union. 13th Report of the European Union Committee, Session 2012-13 (HL Paper 159).
My Lords, today this House has the opportunity to debate and vote upon the Government’s proposal to: opt out of all pre-Lisbon police and criminal justice measures; invite various parliamentary committees to issue reports on the list of measures applicable; and then begin formal discussions with the European Commission and the other member states.
It would perhaps help our deliberations if I begin the debate by providing a little context. Between 1995 and 30 November 2009, some 130 measures in the field of police and criminal justice measures were adopted in Brussels under the so-called third pillar. These were not subject to either Commission enforcement powers or the full jurisdiction of the European Court of Justice. As a result, the Commission could not take action where it considered measures had not been properly implemented. There were no ECJ infringement rulings and unanimity was required to pass decisions in Council. The Lisbon treaty changed the constitutional structure of the European Union in police and criminal justice matters. A five-year transitional period was negotiated to delay these pre-Lisbon measures from becoming subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice. This transitional period applies to and will end for all member states on 1 December 2014.
However, the previous Labour Government negotiated a provision that applies only to the United Kingdom. Under the terms of the Lisbon treaty, the United Kingdom has until 31 May 2014 to decide whether to opt out of around 130 justice and home affairs measures covered by the treaty. If the UK so chooses, the opt-out will come into effect on 1 December 2014. An opt-out of individual measures may have been preferable—I believe that was what the previous Government initially tried to negotiate—but that is not an option. The opt-out can be exercised only en masse. Only after we have opted out can we seek to rejoin individual measures. That is subject to a negotiation with the European Commission and other member states.
Two weeks ago, I repeated in this House a Statement made by my right honourable friend the Home Secretary to announce the list of 35 measures that the Government will seek to rejoin—those being in the national interest to do so. Command Paper 8671 outlines this list of measures and includes the Government’s Explanatory Memoranda on the full set of measures. I want to make clear that the Government are strongly committed to the set of 35 measures in the Command Paper and to a successful negotiation of rejoining these measures.
I am aware of concerns about the difficulty of opting back into some of the more important measures. For example, it is clearly not in the interest of any parties to have operational gaps for those subject to a European arrest warrant or any of the other measures that we seek to opt back into. These matters will be discussed further with the Commission. It is our intention to try successfully to resolve any issues in that regard but, because there is much to consider and much at stake, the exercise of the opt-out must be preceded by careful and intelligent analysis of the 130 or so measures covered by this exercise.
The Government have approached the question of the measures we should seek to rejoin from the perspective that our citizens should not have fewer protections after 2014 than they have now. We have listened to the views of law enforcement and other agencies that operate on the front line to keep our country safe. The piece of work we have put before both Houses is the result of that careful analysis. We want to continue to co-operate with our European partners where there is value in doing so—where it is in the national interest to do so. That commitment is reflected in the 35 measures listed in the Command Paper that we ask the House to endorse today. As a package, they enable co-operation over invaluable practical measures to aid our police forces and criminal justice system. These measures are a crucial tool in the fight against international crime and terrorism.
However, other measures in the original 130 are not so useful: they may be obsolete, defunct or simply unused. That is why the Government’s thinking on this issue has focused on the practical use of measures and whether we consider them valuable in the fight against crime and terrorism. This is why, for example, the Government wish to seek to rejoin the European arrest warrant. With free movement through the European Union, we clearly need strong extradition arrangements in place to see that justice is done. The record shows that since 2009, the arrest warrant has been used to extradite from the United Kingdom 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspected child sex offenders, 27 suspected rapists and 44 suspected murderers were extradited back to Britain to face charges. A number of these suspects would probably have never been extradited back to Britain without the arrest warrant.
The arrest warrant has transformed the extradition process within the EU from one that typically took years to a system that now takes weeks. A perfect example of this is the extradition of Hussein Osman, one of the failed July 2005 bombers, from Italy to the UK in just eight weeks. This is in contrast to the era before the arrest warrant, when it took a decade to deport terrorist suspect Rachid Ramda to France. Such success would have been unthinkable in the absence of EU police co-operation. As noble Lords and others have said, the functioning of the arrest warrant can be improved. The Government recognise this and the Home Secretary has already announced a proposed list of changes in the other place.
Another measure that the Government have also expressed a wish to rejoin is the European supervision order. This will improve the functioning of the arrest warrant by allowing suspects, in the appropriate circumstances, to serve their bail conditions in their country of residence, rather than remaining locked up in a foreign jail awaiting trial. Furthermore, we want our law enforcement agencies to continue to be able to establish joint investigation teams in order that offenders can be brought to justice as effectively as possible. One example of this is Operation Fry. This saw a joint investigation team with the Netherlands target the abuse of free movement through sham marriages. To date, this has led to 122 arrests, with 77 convictions and sentences totalling more than 100 years, and allowed us to initiate action to remove non-EEA beneficiaries of such sham marriages from the UK. That sort of co-operation would be infinitely more difficult as part of bilateral arrangements rather than as part of a wider EU framework of agreements.
We also want to rejoin Eurojust and measures aimed at fighting child pornography and other crimes that occur across borders. These measures offer a crucial method of combating cross-border crime with other member states.
On another front, I am sure all noble Lords want to see as many foreign national offenders as possible removed from the UK. The prisoner transfer framework decision provides for non-consent-based transfers throughout the EU. The Government support both the principles underpinning this measure and the measure itself, as an effective means of getting those who have abused our hospitality out of Britain to serve their sentences back where they came from.
Then there are measures such as the Naples II convention and the customs information system, which allow us to co-operate and gain access to information from across Europe that makes a real difference on the ground, such as the seizure of 1.2 tonnes of cocaine with a street value of up to £300 million that came from information received under the convention. There is also the second generation of the Schengen information system, a new way of sharing law enforcement alerts throughout Europe, which has the capacity to bring significant savings to our criminal justice system, as well as making it easier to identify foreign criminals and terrorists. The Government have been very open about their wish to connect to this database, which requires us to rejoin the police and criminal justice parts of the Schengen convention itself.
These are but a selection of the instruments that the Government believe it is vital to opt back into. The Government have done a lot of work to prepare the Command Paper and it outlines our strong commitment to measures to facilitate cross-border law enforcement. The Minister for Europe committed to a debate and vote in both Houses of Parliament. Not only do we want a debate and vote, however, we also want consultation with the committees. In inviting the committees both in this House and in the other place to submit reports, the Government are ensuring that Parliament is fully involved in the decisions taken.
Although the Command Paper outlines the Government’s current thinking, we will not begin formal discussions with the Commission and member states until after Parliament has had the chance to express its views. That is why today’s Motion from the Government also invites the appropriate committees to contribute to an analysis of the measures. The committees in the other place were invited to do the same in last week’s debate. The result of this process will inform the Government’s formal negotiations with the European Commission and the other member states.
While talking about scrutiny, I want to thank the European Union Committee of this House for the production of such a comprehensive and thoughtful report on this matter. The committee’s chair, the noble Lord, Lord Boswell, and the two sub-committee chairmen when the report was drafted, the noble Lord, Lord Hannay, and my noble friend Lord Bowness, have done us all a service by their work. I look forward to seeing the outcome of the further work of the committee to scrutinise the set of measures the Government believe it would be in the national interest to seek to rejoin.
When repeating the Home Secretary’s Statement two weeks ago, I made clear that the process ahead would be one of open debate and scrutiny, not smoke and mirrors. The full list of 130 or so measures has been available for all to see and scrutinise throughout this process. As this decision under Protocol 36 is triggered only once, we will want to make sure that we make the right decision ahead of the notification deadline of 31 May 2014. As I said, Parliament’s role in this decision will be key. That is why the Government are proposing this Motion today, as it did a week ago in the other place.
Finally, let me clarify the position on Europol: the Government fully support our participation in Europol, the advantages of which self-evident. It is led by a British director, Rob Wainwright, and in 2012 law enforcement agencies of the UK were involved in more than 300 of the 600 major operations against serious and organised crime and terrorism supported by Europol. These included a variety of serious crimes, including Operation Golf, which broke up an international child-trafficking gang operating in Ilford and led to more than 100 arrests.
However, the new Europol proposal, which is subject to a separate, individual opt-in decision not related to Protocol 36, poses some challenges. It includes a proposal to change the powers of Europol, potentially allowing it to direct national police forces and to require intelligence crucial to our national security to be shared with it. These powers are not necessary and the Government would like to see them removed from the new proposal. That is why we have chosen not to opt in at the beginning of negotiations, but we are committed to opt in at the end, once our concerns have been addressed. I reiterate that continued UK involvement in Europol is vital to keeping our citizens safe and combating the scourges of cross-border crime.
In this and the Protocol 36 measures, the Government have put their cards on the table. They are involving both Houses in both the analysis and the debate about the decisions we have to take. I believe that the approach set out by the Government in our Motion is a sensible way forward and I commend the Motion on the Order Paper to the House.
Before my noble friend sits down, will he give us a categorical assurance that the opt-out will not result in a referendum or referenda having to be held in respect of what the nation has to opt back into? It appears that the opt-out moves responsibility and competences back to this country, whereas the opt-in would move them to the European Union and it might fall foul of the Government’s own Act.
Amendment to the Motion
To move, as an amendment to the above Motion, to leave out from “House” to the end and insert “declines to give an opinion on the block opt-out under Protocol 36 to the Treaty on the functioning of the European Union until such time as the Government have (1) given a detailed written response to the Report of this House’s European Union Committee EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report of 2012–13, HL Paper 159), and (2) sought endorsement for the list of measures the United Kingdom should seek to re-join set out in Cm 8671”.
My Lords, before I address the procedural issues covered by the amendment to the Government’s Motion that stands in my name on the Order Paper, I would like to make some observations about the substantive issues raised by the Home Secretary’s Statement of 9 July and the introduction to this debate by the noble Lord, Lord McNally, which set out the Government’s intention to trigger the block opt-out under Protocol 36 of the Lisbon treaty and to seek to rejoin 35 of the measures that fall within the scope of that opt-out. In doing so, I do not speak in the name of the sub-committee on home affairs, health and education that I chair since, lamentably, due to the Government’s delay in replying to the recommendations in the EU Select Committee’s report of 23 April, that report is not formally part of today’s debate, so I speak in a personal capacity.
The subject matter of our debate is, I fear, formidably complex and difficult to address in a simple and straightforward way. Just in case anyone is inclined to blame these complexities on the fearsome Brussels bureaucracy, though, I should point out that the complications are entirely of our own making. No other member state is in such a quandary. It is legitimate, I think, to criticise the previous Government, who negotiated the Lisbon treaty, for leaving such a cat’s cradle to their successors. I suggest that the challenge we face in this debate is to sort out the wood from the trees, tempting though it is to linger over some of the individual trees—for example, the Government’s decision to opt out irrevocably from the measure dealing with xenophobia and racism, surely a bizarre choice that could be considered sinister, just plain silly or a combination of both. It is a trifle difficult to explain or defend.
The first salient point that I would make is that the Government clearly have no objection of principle to the extension of the jurisdiction of the European Court of Justice and the enforcement powers of the Commission to cover justice and home affairs matters. Why otherwise have they opted into a large number of the post-Lisbon measures adopted in the past three years, as well as the 35 pre-Lisbon ones that they now say they are seeking to rejoin? No doubt, as the Minister has said, it is in our national interest to do so, but why then deny those extensions to the European Court of Justice and the Commission in the case of rather a large number of less significant measures? Presumably, that is to placate their critics on the wilder shores of Euroscepticism. However, they have obviously not succeeded in doing that, since some of those critics want to rejoin nothing and quite a few of them actually want to repatriate the post-Lisbon opt-ins as well.
A second salient point emerges from a study of the Explanatory Memorandums provided in Command Paper 8671. In not a single instance is it suggested that a measure currently in force is damaging to the national interest, or would be damaging if the Court’s jurisdiction were extended to cover it. The Explanatory Memorandums also state that not a single one of them impairs the human rights of British citizens. Why then do the Government want to opt out irrevocably? The most that can be said is that it would not make much difference. However, I suggest that that is a singularly feeble basis on which to found negative decisions that could have far-reaching implications for our wider relationship with the other member states. I should add that in the course of taking evidence we asked all our witnesses, some of whom were strongly in favour of the block opt-out, whether they could identify a single measure that was damaging to the national interest, and they could not do so.
It is sometimes suggested that to accept the European Court of Justice’s jurisdiction would be to undermine fatally the basis of our common-law system. Not one of our legally expert witnesses could substantiate that, and most of them contested it vigorously. There are, after all, three other member states that have common-law systems—Ireland, Cyprus and Malta—and they do not seem to be feeling any stress. Much is made of the so-called judicial activism of the European Court of Justice, but an examination of its track record in the justice and home affairs field provided no evidence at all for those assertions. In fact, the treaty requires the Court to pay proper respect to national jurisdiction in these criminal justice matters, so it is perhaps not altogether surprising that it actually does so. However, that seems to be overlooked by the Court’s critics.
If so far I have been rather critical of the Government’s position, let me say how much I welcome their decision to seek to rejoin Europol, Eurojust and the European arrest warrant. To have done less than that would have been to have put at serious risk important aspects of our national security—I was glad to hear the Minister recognising that quite explicitly—not least those relating to our greatly improved and crucial relationship on these matters with Ireland. We looked carefully at the assertions that we could comfortably move to a network of bilateral arrangements, in place particularly of the European arrest warrant, but we found no merit in that approach, which would in all likelihood be slower, more costly and less effective than the European arrest warrant.
The Government’s intention to implement the European supervision order is also very welcome. As the Minister said, that will enable British citizens sought under an arrest warrant to be bailed here rather than held abroad for long periods awaiting trial, one of the most justified criticisms of the arrest warrant. The fact that this country missed the deadline for implementing that European supervision order, which expired last December, should be a cause of shame for the Government, and the sooner that it now comes into force the better.
Where does that leave the debate over whether Britain should make use of the block opt-out, which it is undoubtedly entitled to do under the provisions of the Lisbon treaty? Nothing contained in the Home Secretary’s Statement in the other place on 9 July, in the Explanatory Memorandums published in Command Paper 8671 or in what the Minister has said today seems to justify a change in the judgment that your Lordships’ Select Committee reached last April: that the Government have not yet made a convincing case for triggering the opt-out. Indeed, the Government’s recent decision to ignore the views expressed by this House on 1 July, and therefore not to opt in from the outset to the negotiations on the new post-Lisbon Europol regulation, further undermines the credibility of the Government’s approach and further increases the potential risks to our national security.
What is new is that the Government have now, very belatedly, revealed the list of 35 pre-Lisbon measures that they will seek to rejoin. That is welcome, as is the content of that list—at least, so far as it goes. It seems to cover most of the main pre-Lisbon measures that the European Union Select Committee identified as being essential. Whether it covers all that needs to be covered remains to be seen; I am afraid that the period since the publication of Command Paper 8671 has been far too short to give the matter the detailed consideration that it requires. That consideration will now be undertaken by the two sub-committees working together as before, and will form the object of a further report that will be provided to your Lordships’ House before the end of October, as the Government have invited us to do, with a new call for evidence issued on 18 July.
That brings me to the procedural issues covered by the amendment standing in my name on the Order Paper. I placed that amendment on the Order Paper when it seemed as though the Government were seeking authority to trigger the block opt-out while doing no more than asking the House to take note of the list of measures that they might seek to rejoin. In this way, they were dividing in two the integrally linked parts of a single set of decisions which our report to the House made very clear had to be taken together. How could this House reasonably be asked to endorse the block opt-out when it was not being asked to endorse the list of measures we should seek to rejoin? The amendment to the government Motion that was moved by the noble Lord last night has, however, changed that position and has asked the House to endorse the list of 35. That is a major step forward.
It meets the more important of the two requirements set out in my amendment and, as so often when you are standing waiting for a bus, two come along together. So on this occasion the Government have now, in something close to a death-bed conversion, produced their response to our report, which I spent the afternoon reading, but on which I will certainly not attempt to comment now. Although I can do a bit of speed reading, these matters require a little more care than that. In any case, the result of this is that the two points in my amendment have been met by the Government. I therefore make it clear that I do not intend to divide the House on that amendment.
My Lords, it is a pleasure to follow the noble Lord, Hannay of Chiswick, with whom I, as the then chairman of the justice, institutions and consumer protection sub-committee, worked closely in the previous Session of Parliament when that sub-committee and his home affairs sub-committee conducted the inquiry into the UK opt-out. I agree with many of his comments and I should tell your Lordships that, had a new Motion not been laid before the House tonight, and had we been debating the terms of the original Motion, I would have supported the amendment of the noble Lord, Lord Hannay, and voted for it, had he called a Division.
I speak tonight, however, on my own account and I cannot speak for the current chairman, the noble Baroness, Lady Corston, or the current members of the committee, of which I am no longer a member. Members will understand that for that reason, and because it arrived in the House at about 2.30 pm, I will not comment on the Government’s response to that report.
I can however speak of the findings contained in that report and the evidence on which it was based. The sub-committees had decided to carry out an inquiry prior to 15 October and the announcement of my right honourable friend the Home Secretary, who stated on that occasion that the Government were minded to exercise the option, that it would be the subject of a vote in each House, and that the relevant committees of each House would be consulted before reaching a definitive position, the process of which tonight’s Motion forms part was set in train.
Subsequent to my right honourable friend’s Statement, five Explanatory Memorandums were promised to your Lordships’ committees. They were promised for January or early February—and latterly promised an impact assessment. The impact assessment has not yet, to my knowledge, been seen and the Explanatory Memorandums were produced as the White Paper referred to by the noble Lord, Lord Hannay, only on 9 July, when the Home Secretary made her Statement to the other place. She also made it clear on that occasion that what must happen next is a process of negotiation with the European Commission and other member states, and that those negotiations will determine the final list of measures that we formally apply to join.
The Motion originally laid before the other place expressed the belief that we should opt out, rejoin the measures that were described as being in the national interest to rejoin and seek further reports from the relevant committees prior to formal discussions with the Commission and the Council on the set of measures in the White Paper—all prior to formal application to rejoin. In parentheses, I think the delay in opening the negotiations until October will prove unfortunate, as time—and as much time as possible—will be needed for the negotiations to rejoin.
That original Motion at least contained a definitive linkage between the decision to opt out and the 35 measures described at various times as being in the national interest and a commitment to negotiate on those matters. However, that Motion was amended and the Motion carried in the other place omits reference to those matters in the national interest and the Command Paper. The right to exercise the opt-out is absolute and is in the treaty, but readmission to measures to which we wish to be readmitted is not.
The Schengen measures require unanimity in the Council; the other JHA measures are dealt with by the Commission, who may present a proposal to the Council for transitional arrangements—decisions in which we will not necessarily participate. The principle of coherence means that we may not be able to rejoin one measure without rejoining another linked measure, and that may not be acceptable to the UK
This will all take time and there is no certainty. When we were preparing the report, we received no evidence that the Commission would seek to frustrate our rejoining. As to the other member states, the Government were unable to tell us what conversations had taken place. However, like the noble Lord, Lord Hannay, I agree with the proposal to reapply to join the 35 measures described as being in the national interest.
The Motion originally laid before the House, as has been stated already, was merely to note those proposals and that was not good enough. I am therefore very grateful to my noble friends Lord McNally and Lord Taylor of Holbeach for recognising the significance of these measures and agreeing that the Motion should endorse the Government’s proposals in the Command Paper, which sets out the 35 measures that they will seek to rejoin.
The final decisions as to opting out and the measures to apply to rejoin are executive decisions for the Government, albeit that they have spoken about consulting Parliament. So I ask the Government to assure the House that the House will be informed if their intentions regarding the 35 should change.
What of the other 130-odd measures? These, together with the 35, are the subject of the Explanatory Memoranda in the White Papers. I have to say with regret that the Explanatory Memoranda are extraordinarily badly prepared—and even worse presented. It is not clear on what basis the Government chose the 35. No clear reasons are given, apart from the Prüm decisions where there are concerns about costs. Some are stated to be defunct and so presumably of no real concern; some are said not to be needed because we have dealt with them administratively or in domestic legislation. As the noble Lord, Lord Hannay, said, none is stated to be harmful.
House of Lords reports are generally acknowledged as being evidence-based. The report on the opt-out was so based. We made it clear that decisions on the opt-out should not be made without certain information on which to base that decision. In our report, members of all parties and none concluded that the Government had failed to make a convincing case in favour of the opt-out. We also made it clear that we could not form a view about which measures we should seek to opt back into without a provisional list of measures and an analysis supported by the impact assessment, and that the decision to exercise was necessarily linked with the measures that the Government wished to be able to rejoin.
We were struck by clear and preponderant evidence from witnesses from the legal, law enforcement and prosecutorial professions as to the potentially negative impact of exercising the opt-out. Now, somewhat belatedly in the whole process, we have the provisional list of measures but not the other elements required for final decisions. We are being asked to express a view about opting out without a proper assessment or analysis of whether the benefits of opting out outweigh the possible risks and uncertainties of an application to rejoin. In short, is the game worth the candle? I ask the Government in due course to report to Parliament on the progress of the negotiations so that judgment may be made.
In the mean time, while I remain profoundly unhappy about many aspects of the whole process, I will not oppose this Motion, which goes some way towards addressing the concerns of those who believe the idea of exercising the opt-out to be misconceived. However, and this is crucial, were we to defeat this Motion, we would lose the opportunity, which was lost in the other place, of placing on record and binding in our belief that the 35 listed measures are in the national interest; and we will have lost the opportunity to endorse the Government’s welcome intention to apply to rejoin the same. We can return to the other 130 later, and no doubt they will feature in the reports that have been requested from committees of your Lordships’ House.
My Lords, I will deal with a small point to start off with. As I understand it, no impact assessment will now be coming until the final list of measures to which the Government are proposing to opt in is determined, as the noble Lord, Lord Bowness, will notice from the document that we got this afternoon—at long last, the government response to the Select Committee report.
I find it difficult to see the reasons for this debate. I am not absolutely certain why it is being held, or held in this way, or of the procedures through which we are being put. The Government have produced a procedural mess into which, unless we are very careful, they, the country and these issues will sink. It may be worth while briefly going back to the origins of this whole affair.
The Government having declared that they were minded to exercise the opt-out, the matter was then inevitably transferred to your Lordships’ Select Committee for scrutiny. The committee decided that, since the matter was so unusual, the scrutiny should be conducted by a joint committee consisting of Sub-Committee E and Sub-Committee F sitting together. This was a precedent but it seems to have worked extremely well. As a former member of Sub-Committee F, I express my thanks to the noble Lords, Lord Hannay and Lord Bowness, for the way in which they jointly chaired that committee.
I will not bore the House tonight with details of how the committee proceeded. Suffice it to say that we took a great deal of evidence and heard from a large number of witnesses, including the Home Secretary and the Lord Chancellor. Rarely—I think never before—have I participated in a process in which the evidence was so overwhelmingly in one direction. It was really quite extraordinary. Members of the committee were actually looking hard for evidence on the other side of the argument, but evidence was there none.
I will quote two paragraphs from the report. We said:
“Beyond concerns about the EAW, which we have already discussed in Chapter 6, very few of our witnesses drew our attention to any specific measures that they considered to be detrimental to the interests of the UK”.
The committee’s conclusions were clear and quite firm:
“We therefore consider that there are compelling reasons of national interest for the United Kingdom to remain full participants in most of the measures and agencies referred to in this Chapter. As to the remainder we have identified no persuasive reason for the United Kingdom to withdraw from them”.
We have waited until today to get the Government’s response to that report. On the very day of this debate, indeed, at last we got it. That is very interesting and, indeed, rather revealing.
In the mean time, however, the Government acted by tabling a Motion in the House of Commons last week, and in your Lordships’ House today, determining that the opt-out should be exercised. It is not a question of discretion. It determines that the opt-out should be exercised, and that is expressly the opinion of this House if it passes the Motion. At the same time, the Government accepted an amendment in the other place that the process of opting back in should be delayed until after three Select Committees of the House of Commons had reported on the measures in respect of which we should exercise the opt-back-in.
The reason for this extraordinary mix-up seems to have been the inability of the Government to produce Explanatory Memoranda in the timescale that they had themselves specified. They had told us that we would get them in February of this year. Had they produced them in Feburary, those Select Committees in the other place could have been engaged in their scrutinising role for some months past. As it is, they will have to do it by October.
The main difficulty that arises from all this relates to the credibility of the Government’s commitment to opt back in to the 35 measures that they have set out. The Lord Chancellor, in his closing speech in another place, said:
“The Government have taken a decision in principle that it will be in the interests of the UK to join a number of measures that involve international co-operation in fighting serious … crime”.—[Official Report, Commons, 15/7/13; col. 851.]
That statement understandably provoked a reaction from Mr Cash, who immediately asked whether the Government could take the view that it was not appropriate to opt in if the evidence taken by the three committees led to the conclusion that that was not in the interests of the United Kingdom.
That is precisely the point on which some of us on this side of the argument need reassurance. Can I take it—and I hope that the Minister will deal with this directly in his summing up—that the Government’s firm intention is that they wish to opt back in to the 35 measures set out in the Command Paper and that they consider those to be in the national interest?
This is really a political argument and not a legal one. There are obvious risks in the policy that the Government are pursuing. There is no guarantee that the Commission and member states will be prepared to give Britain an easy route back in. There are bound to be some gaps and delays.
If one looks at the 35, I do not think that one can objectively doubt that they are in the national interest. Indeed, if one looks at the Government’s response to the Select Committee’s report, it is clear that they are quite warm towards these measures; I am conscious of time and will not go into the details on that. The tone of the Government’s response is favourable to the opt-back-in of the 35 measures, but this brings us to the real difficulty. If we pass this resolution, that, coupled with the Commons, will give the Government parliamentary authority to exercise the opt-out. There is no such parliamentary authority for the Government to exercise the 35 opt-ins, and there is certainly no obligation—only a declaration of intent. Let us assume that we opt out and then nothing happens. What are the consequences of that? The result is that the 35 measures will lapse. Moreover, the procedure now being used by the Government in the other place—namely, giving Select Committees opportunities to look at this matter in the way that they are—is itself a recipe for delay and continued friction.
The truth is that this procedure is politically disingenuous. The noble Lord, Lord McNally, referred to smoke and mirrors. There is a lot of smoke, and there are certainly one or two mirrors around the Government’s position on this. The noble Lord shakes his head. I do not agree with him. The Government position is to pretend that they are getting rid of significant things in the hope that nobody will notice that what they are doing is not getting rid of significant things but getting rid of things which are defunct, unimportant or irrelevant. Then they will opt back in, so it is said—if they can get the Commission and other bodies to agree—to things which are important and relevant.
The safe way to do this would have been not to opt out in the first place. There is absolutely no reason why we should have taken that risk. Alternatively, if we did opt out, the other way of doing it would be to do the two things together, at least as far as Parliament is concerned. Why could we not have had a vote on a Motion approving both the opt-out and the list of measures to which the Government wish to opt back in? We do not have that. It is not in this Motion. It was certainly not in the Motion that was debated in the House of Commons last week. If that had happened, it would have been neater, crisper and more comprehensive. As it is, we should not vote to approve one side of the equation without being in a position also to approve the other side. That is by far the safer way to proceed.
My Lords, today’s version of the Government’s Motion asks your Lordships to approve the block opt-out of 133 JHA measures. It also asks us to approve the rejoining of measures that are in the national interest and now suggests, without quite saying so in the Motion, that these are the 35 measures set out in the Command Paper. The Motion also invites your Lordships’ EU Select Committee to report on the matter before the end of October, when negotiations with the EU institutions will start—which is, perhaps, an unusual way for the Government to communicate with a Select Committee.
The Government, or some parts of it, seem to have got themselves into rather a tangle over all this. This tangle seems to have led them into, at the very least, discourtesies to Select Committees here and in the Commons and, by extension, perhaps to both Houses as a whole. The very long delay in providing the promised Explanatory Memoranda is a case in point, as is the failure to respond to the report of your Lordships’ EU Committee in the agreed timeframe.
Perhaps the most important and straightforward interpretation of the events of the past few months is the following. The Prime Minister seems to have decided, on or before the date on which he made his now famous Rio speech, that he would exercise the block opt-out. That was on 28 September last year, 10 months ago. There followed a series of not wholly convincing denials that the Government had in fact made up their mind to exercise the block opt-out, and not wholly convincing assertions that they had an open mind on the issue. It seemed pretty clear that the Prime Minister and, perhaps just a bit later, his Conservative colleagues in the coalition had in fact decided to opt out. The moment this became clear—and it was pretty immediately clear—the real political task was not to try to prevent the block opt-out but to agree a sensible, comprehensive and coherent package of rejoin measures. I doubt that, despite the overwhelming evidence against opting out, it was ever going to be possible to persuade the Prime Minister not to do exactly that. The Prime Minister had committed himself and his colleagues far too early and much too clearly.
It is easy to see that the Government were almost certainly not going to be moved. They were going to exercise the block opt-out, come what may, as it were. That meant that the real political debate would be over which measures to apply to rejoin. I know that there has been very extensive debate within the Government over exactly this. The Government’s original Motion appeared to be coy about exactly what these measures might be, but today’s version of the Motion is pretty unambiguous. The rejoin measures for negotiation are the 35 set out in the Command Paper. These rejoin measures proposed in the Command Paper represent the outcome of negotiations within the coalition. On any objective reading, this list of proposed rejoins seems to be entirely satisfactory. In fact, the Lib Dem negotiators, and Danny Alexander in particular, should be congratulated on what they have persuaded their Tory colleagues to accept. It may be, of course, that to pass the Commission’s legal requirements for coherence we will have to add to this list one or two other minor and technical measures. However, this would not be difficult and would certainly not be harmful to the national interest.
One of the oddest things about this whole imbroglio is that the Government have not been able to demonstrate that any of the measures they do not want to rejoin is harmful to the national interest or damaging at all. I repeat that the list of proposed rejoins set out in Command Paper 8671 seems to be entirely satisfactory. We must acknowledge that we are where we are but we must also acknowledge the time pressure. It is critical that we get on with this so that we absolutely reduce the chances of any interregnum where we are out of 133 measures and not yet back in to 35, or however many it turns out to be.
I hope that the House will agree with this and will agree to the Government’s Motion. I look forward, as a member of your Lordships’ EU Sub-Committee F, to examining and reporting on matters as they will then stand.
My Lords, I declare an interest which is in the register. Because of the advisory time limit I intend to speak as fast as Benedict Cumberbatch, who plays Sherlock Holmes on the television.
I shall speak separately about the opt-out—the Government’s decision to exclude the application to the UK of some 130 measures, which of course the UK is entitled to do under the Lisbon treaty—and the opt-in, which is a separate proposal to opt in again to the 35 measures. That requires confirmation by the European Commission, which can impose conditions in the case of the non-Schengen measures, and in some cases agreement of other member states—the so-called Schengen measures.
In order to judge the best result for Britain, the two issues should be examined together. I welcome the Government’s decision to do this in the Home Secretary’s Statement of 9 July and in the submission of these issues to Parliament in the House of Commons and now in this House. We have also had the advantage of the careful examination of these questions in the EU Committee and the very substantial 155-page Command Paper 8671. I did not find it easy bedtime reading but it is a very thorough statement of the Government’s position which we are now invited to endorse—a vital and important change, which I welcome. I have noted that as a result of discussion in the House of Commons the timing is now not quite as speedy as was originally thought.
Although I will first speak about the opt-outs, it is the choice of the 35 opt-in measures and the conditions that we might wish to apply which are the more interesting. However, I will begin with the opt-out. It is important to stress that we are in the five-year transitional period under the Lisbon treaty—Article 10.1 of Protocol 36—and infraction powers under Article 258 of the treaty do not currently apply. However, if we do not opt out, of course all these measures will become subject to the European Court of Justice and the enforcement powers of the Commission on 1 December 2014. Quite simply, if we do not want that, we must opt out. If we are satisfied with it, we do not need to opt out. That is the basic situation before us.
An examination of these measures, set out in Command Paper 8671, shows that in the Government’s view, a good number of measures have little or no impact in the UK. Your Lordships will frequently find statements such as:
“The Government considers the economic impacts of non-participation in this measure to be negligible”,
or that a measure,
“does not appear to be in force, nor is it likely that it will come into force”.
There are many examples of this. We can draw two conclusions. First, these measures do not matter very much to the UK, which is the Government’s view. Secondly, as a general principle—which for me is important—it is always wise to question the need for legislation, whether from national or EU sources, unless it can be shown to be essential.
A mountain of secondary legislation passes through this House—there were 11,414 pages in 2009. This legislation is dominantly of national origin and the proportion that is Brussels-derived and under the European Communities Act is quite small. However, in the area of justice and home affairs there are a lot of regulations and legislative measures and the Government have decided that they want to go for the full opt-out. We might say that whatever the arguments advanced so far—and I respect them—this may make a small contribution to reducing exaggerated claims of the role of EU legislation in Britain.
I turn to the opt-in proposal, which is intended to safeguard and reinforce our national interest against organised crime and trafficking and to favour the most efficient administration of justice across frontiers. As I have already indicated, there are two types of these measures, the Schengen and the non-Schengen, and the procedures are quite different for bringing this to a conclusion as recommended by the Government.
There are some quite important measures among the 35, but they are mainly non-Schengen measures in the form of Council acts or decisions. Examples are the Council act on mutual assistance and co-operation through customs administrations—the so-called Naples II, which I believe is the basis which we use now. Then there are the Council decisions strengthening Eurojust in the fight against serious crime; the Council decision establishing Europol, whose excellent work was specifically pointed out by the Home Secretary in her Statement; and, of course, there is the decision on the European arrest warrant, which was dealt with extensively in the Home Secretary’s Statement together with the specific proposals she put forward for amendment of UK law to respond to some problems in practice.
I will say a few words—speaking as fast as I can but not as fast as Benedict Cumberbatch—about Europol and the European arrest warrant. Europol is just the sort of organisation that we need if we are to keep pace with—or preferably outpace—trans-border crime. It is common sense that we should stick with it in the interests of our law-abiding citizens, and that we should obtain the two assurances mentioned by the Home Secretary on data sharing and security and on there being no power for Europol to initiate investigations. I hope that we can deliver the Europol opt-in simply and quickly, by whatever method we go at it, because I am in favour of it.
The European arrest warrant is highly valued but it is much more controversial. It makes sense to operate on an EU-wide basis in order to avoid the complexity of negotiating extradition agreements with many different countries. The Home Secretary has indicated the changes that she wants to make in national law. I will not go over them again. They are in her Statement. They are all very sensible and we should endeavour to stick with them as the decisions on opt-ins go forward.
To conclude, the Government have made their choice, but the end of the operation will be when the Commission confirms the opt-ins, or in some cases when the member states agree them. It will be a good thing to have another report from the EU Committee. The changes that we have just discussed—the introduction of the word “endorse” and the other actions by the Government—indicate that we have a basis for responding to the motivation behind the amendment that the noble Lord, Lord Hannay, will not now press.
My Lords, I am a recently appointed member of Sub-Committee E. It has been an interesting baptism, dealing with the opt-out decision: all or nothing. From time to time it seemed that we were dealing with a booby trap on which was written, “I wonder how they’re going to get out of that”.
As the noble Lord, Lord Hannay, and my noble friend Lord Bowness said, we came to a clear, utilitarian answer to a rather complicated question. We made quite a long answer to that question, which was that the case was not convincing. As the Irishman said when he was asked for directions, “I wouldn’t start from here”. Perhaps it never was a utilitarian question; perhaps it was political; and perhaps we came up with the wrong answer.
I am a European. I am in favour of co-operation and against centralised control. I was lucky enough to be in Strasbourg in 1949 when there were 10 members of the Council of Europe and Winston Churchill made the keynote speech. One member of the 10 is not a member of the Community, but now, 64 years later, there are 47 members of the Council of Europe, and more than half of them are members of the European Union. Since the Commission and the Council are, as it were, the children of the Council of Europe, they should refer to the Beatles’ song, “When I’m Sixty-Four”, the last line of which is:
“Will you still need me, will you still feed me,
When I’m sixty-four?”.
From time to time, any institution needs a renewal of its mandate. Many people in this country and elsewhere are not sure why the Commission and the Council should have that renewal. Every now and again, a wild card is thrown on the table that makes people worry. The preamble to the Lisbon treaty refers to,
“ever-closer union among the peoples of Europe,”
“a new stage in the process of European integration”.
I suggest that many people will not know what either of those aspirations means. As far as I know, nobody has ever given them a clear definition. Are we still intent on the avoidance of a third world war? I rather think that we no longer have the weapons with which to create it. Are we just a trading bloc? Will harmonisation of law across Europe one day end the defence of members’ legal systems? In short, what is the European project now? Is it intent on enhanced co-operation or centralised control? The public do not know the answer. It is a very complex question—not just this decision but the whole state of Europe—and it needs clearing up. The complexity and uncertainties must be exposed and discussed, and this Government are doing just that.
Tonight, the decision to opt out and opt back in is about co-operation and not central control. It is almost a housekeeping issue. However, the uncertainty about where it might lead means that many people do not see it that way. Therefore, the Government are entirely right to decide to opt out and opt back in to the 35. They will do that successfully, and that will restore public confidence in their ability to level with the European Union—not always a certainty in many people’s minds, and certainly not seen by many members of the public as being the case.
The relationship with the Commission and with the Council will be improved by our willingness to enter into long and serious negotiations. Therefore, it is entirely right to take this opportunity to renegotiate a system of international justice to the best advantage of ourselves and of other members of the European Union. I fully support the Motion.
My Lords, over recent months, so many things have been said on so many occasions about opt-outs that most people had not heard about before the decision was taken to consider the consequences of Protocol 35 of the treaty of Lisbon. We heard so many contradictory statements. Today, we are not really having a debate about what our relations should be. Our debate has nothing to do with the improved governance of Britain. It has precious little to do with our relations with the EU on police and criminal justice measures. Our debate has everything to do with appeasing Eurosceptics on the Conservative Benches in the House of Commons. So concerned are we about appeasing them that we cannot even put the same Motion before the two Houses. The Motion that they approved did not ask them to endorse anything, and, as recently as yesterday, we were not asked to endorse anything. It is all down to the process of changing your mind as you go along to appease the Eurosceptics. I warn the Government that what they are doing is not appeasing them but driving them to seek ever greater concessions.
Everywhere, the tactic has failed. Their Motion to appease Euroscepticism differed from the one we are dealing with here. They could not be asked to endorse the list of the 32 measures. When we were beginning to have controversial arguments about the measures for police and criminal justice measures, I was somewhat reassured by a Written Ministerial Statement made on 20 January 2011 by Mr David Lidington, the Minister for Europe. He included references, for example, to consultation before the Government make a formal decision. He also referred to consultation on the arrangements for the vote. All those ideas were there.
There were further statements on the issue. The Home Secretary wrote two letters to the European Union Select Committee which repeated the undertaking and provided the first list of these police and criminal justice measures. She assured us of prior consultation. Yet within the space of the two letters, between the first one promising continued consultation and the second one promising continued consultation, the Prime Minister, probably thinking that he was escaping the glare of publicity by speaking in Rio de Janeiro, made a speech in which he promised that we would opt out. He announced it at a press conference, saying that,
“the opt-out is there. We’ll be exercising that opt-out”.
This was at a time when your Lordships’ Select Committee was working hard on the basis of the promises that we received from the Minister for Europe and in two letters from the Home Secretary. Yet the Prime Minister pulled the rug from under their feet because he thought that that would gain him a few extra brownie points from the Eurosceptics in the House of Commons—so much for the assurances of the Minister for Europe and the Home Secretary.
I contrast the work of your Lordships’ Select Committee with the rather tawdry, shoddy apology of a response to Parliament from the Government which they sneaked into the Printed Paper Office today, several months too late. Your Lordships’ report was a thorough, evidence-based analysis. However, the Government’s response to it came at the very last moment and is hardly worth the paper on which it is written. There are some good bits in it but most of it comprises points which the relevant Members should be ashamed of writing. It has the same level of competence as what purported to be an Explanatory Memorandum.
I have almost observed the five minutes speaking limit. However, at the risk of really getting up the nose of the noble Lord, Lord McNally, I will ask him the same question that the noble Lord, Lord Maclennan, has asked. We are opting out of all the relevant measures by 31 May next year. At that point none of those measures will apply to us. We will apply to rejoin some of them but by the time we do so we will be extending new competences to the European Union which we have given up through the opt-out.
The noble Lord, Lord Maclennan, asked a fair question and did not deserve to be muttered at and abused by the Front Bench: namely, are these the sort of measures—where there is a transfer of competence back to the European Union—whereby, under the rather stupid legislation that the Government introduced in relation to European referenda, we will be required to have a referendum? Will the referendum be on the whole package or will there be one on each of the 35 measures? The noble Lord, Lord Maclennan, has a right to know that. When the Minister replies to him, I would like to be told the answer as well.
My Lords, I, too, would have voted for the amendment moved by the noble Lord, Lord Hannay, if the Motion had remained in its original form. Now it is one which I can support because it commits the Government to opting in as their official policy to the measures which matter most. However, the history of where we have got to needs to be borne in mind because it is a reason for exercising a certain amount of caution. When the negotiations started between Oliver Letwin and Danny Alexander, the Government—at least the Conservatives—were absolutely clear that certain red lines existed, including the European arrest warrant and more jurisdiction for the European Court of Justice. There was strong opposition from Open Europe and, naturally, from the UKIP tendency inside the Conservative Party, but there was also opposition from leading figures in the Conservatives such as Dominic Raab, who kept on explaining that you did not need Brussels at all and that you could organise a whole lot of separate bilateral negotiations. Fresh Start said that it would not opt back into anything. However, matters have changed and we are now in a position whereby, on the face of it, the Government are committed to serious opt-back-ins.
However, the House of Commons debate was not exactly reassuring. In particular, the speech by the Home Secretary was in my view pretty disgraceful, reiterating the claim that this was the first step in the major repatriation of powers because 100 measures would be left opted out of. It was in fact one of the ablest of the Europhobes, Mr Jacob Rees-Mogg, who completely exploded that idea by asking which were the important measures that we were no longer going to opt back into. In addition, the whole tone of the Home Secretary’s speech was one of trying to appease the Europhobes. She assured them that they did not have to worry too much because they always had the right to vote against the opt-ins when they came to Parliament again.
I want an assurance from the Government, which I believe the Minister will give, having talked to him on this issue very recently. We need an absolute assurance that the Government will not yield one further inch towards the Europhobes. It is not a happy history. The Prime Minister had made a number of pro-European remarks but when the going has got tough he has always given in. That is why he bought peace with the promise of a referendum in 2017, which is a ridiculous commitment because by 2017 we will not yet know what sort of Europe—which is in a state of flux—we will either have to stay in or leave. Therefore we need an assurance that there will be no further surrender and that there will be a strong Whip in the House of Commons and not be endless speeches that would delay the whole procedure—because every single opt-in measure will be challenged by the Europhobes, who will not give up their opposition.
If the Government stand firm, I think this is a good result. I am not as worried as the noble Lord, Lord Tomlinson, about a legal challenge. Having looked at this, I do not think that there are grounds for a legal challenge. However, the tactic of judicial review could be used to try to delay a decision. I am more worried about that than about the merits of a challenge. If the Government stick to it, this will be a good result. It will be the first defeat for the UKIP tendency and for UKIP and I hope that there will be many more. I hope that in the 2014 elections all the parties—or at least those that support these opt-in measures—will expose UKIP’s position as that of a party which is soft on crime and does not want measures that can deal with people traffickers, money launderers, porn merchants and all the rest. We should seize that opportunity provided that the Government stick firmly to what they have now promised.
My Lords, as a member of the Joint Committee I was surprised that neither in the Statement to Parliament on 9 July nor in the Command Paper of the same date did the Government bother to refer to, let alone commend, our work. However, as if attempting to remedy this slight, the Home and Justice Secretaries, in an undated letter sent about 19 July, went perhaps over the top in glowing superlatives relating to our report. Yet, at the same time, they compounded their cavalier attitude to the committee by informing us when we should conclude our next inquiry on the subject without consulting us in advance.
The point of criticism of the Government’s process has already been well made, so I turn to substance. I pose this simple question: how would a judge conclude if the evidence that we had received were placed before him or her? Surely that judge would find the one-sided comparative weight of the witnesses before us absolutely compelling and overwhelming.
Supporting the Government were Mr Dominic Raab, both in his own right and again as the drafter of the Open Europe submission. Then, of course, there was the United Kingdom Independence Party. The committee staff managed to locate Mr Martin Howe, a senior lawyer but also a Conservative activist, having sought nomination on several occasions.
However, critical of the Government’s position were all the professional bodies, all the enforcement agencies and the prosecutorial bodies. Our committee report was endorsed by the Law Society of England and Wales, the Bar Council, the Faculty of Advocates and the Scottish Government. Our one witness from the Republic of Ireland was, frankly, baffled by the Government's stance. In short, the weight of critical evidence was overwhelming and our judge would surely have been driven to the same conclusion as that which the committee reached unanimously—namely, that the Government had not made a convincing case for exercising the opt-out and that to do so would have significant negative repercussions for the national interests of our country. Nevertheless, the Government have ploughed on regardless and claim to have acted in the national interest.
The noble Lord, Lord McNally, was moved to write in the Liberal Democrat Voice that “we”—the Liberal Democrats—
“have fought hard to keep the public safe, in the face of a Euroscepticism which would put public safety at risk in the pursuit of its anti-European agenda”.
That is hardly a flattering description of his Conservative colleagues in the coalition. In the same article, he proudly claimed that the deal with those Conservative Eurosceptics illustrated the influence of Liberal Democrats on the Government. The truth, of course, is that the Liberal Democrats could have blocked the opt-out entirely had they so wished, but chose not to do so.
Again, having reviewed all the evidence, our learned judge would have noticed the leitmotif of suspicion, almost obsessive in its intensity, of the Government's attitude to the Court of Justice of the European Union. That is particularly puzzling in the light of the fact that the Government have over recent years opted into a number of measures subject to the court and must therefore have no objection in principle to subjecting themselves to the court's jurisdiction—paragraph 104 of the report. It is puzzling also because the court already has jurisdiction over pre-Lisbon EU civil asylum and immigration matters, surely central to national sovereignty. Paragraph 96 of our report pointed out that there are very positive aspects regarding preliminary references to the court. In paragraph 89, the committee, having examined all the evidence—as no doubt would our judge—dismissed the bogeyman of excessive activism:
“we can discern no convincing evidence that the CJEU has been either judicially activist or that its rulings set out to undermine the autonomy of Member States’ criminal justice systems”.
Our judge would probably consider the question of costs not to be within his remit, but there are threefold elements of costs: potential financial costs of seeking to opt back in; the general uncertainties and potential hiatus in the transition period; and, of course, the potential loss of influence in Brussels by the signal which the Government have so clearly given. Who can forget the position of the then Conservative Government from 1993 to 1997, when we lost much influence by the turmoil in the Conservative Party at the time?
All that turmoil for what? Again in the words of the noble Lord, Lord McNally, in the same article:
“The measures which are being dropped on the other hand are, by and large, those which are now redundant, those which have been superseded by newer instruments, those which have already been incorporated into UK law, and those which have very little operational use for the UK. So we’re keeping the wheat and losing the chaff”.
Similarly, the Economist of 15 July headed its article,
“Britain wants opt-outs from EU rules, as long as they don't much matter”.
Of course the Government have made some positive suggestions, for example by remedying deficiencies in the European arrest warrant, but not by diktat. The normal European method is by consensus, by forming alliances, and by working with our European partners consensually. Again, the Economist stated:
“Mrs May’s statement was designed to please Eurosceptic Tories. Instead they denounced it”.
That is, all this trouble is a political decision not a legal decision, one designed to please what one senior German parliamentarian called the Tea Party tendency within the Conservative Party.
I have one warning for the Home Secretary—I end on this. Her Tory colleagues will not be satisfied by her gesture. Like the keeper in the zoo's penguin house, she may regularly be inclined to throw fish to them, but they will swallow them down and ask for more. She should be warned: they will indeed ask for more.
My Lords, it is a pleasure to follow the noble Lord, Lord Anderson, with whom I so often find myself in agreement. I hope that tonight he is not casting me in the role of his hypothetical judge.
I was of course very glad that the Government decided to include Europol, Eurojust and, above all, the European arrest warrant among the 35 measures, but I am not yet persuaded that an opt-out in 2014 is the way ahead. One argument used by those in favour of the opt-out is that it would set limits on the jurisdiction of the Court of Justice of the European Union over our domestic affairs. I could understand that argument—although I would not agree with it—if we were going to get shot of the court of justice altogether. Of course, that would be pure fancy. We would still be subject to the jurisdiction of the court in respect of all the many police and criminal justice measures we have signed up to since Lisbon, and would also be subject to its jurisdiction in respect of the 35 measures which we all hope to rejoin. So the European court will be there anyway in one way or the other, and I think we should pay little attention to that argument in favour of the opt-out.
The argument against opting out is simple. We may not succeed in rejoining all 35 measures which are agreed to be in our national interest, at least on terms which we would want. When I put that point to the noble Lord, Lord McNally, on 9 July, he replied that of course there would be that risk, but he said that with good will on all sides and with colleagues who want us to succeed, the risks would be minimised.
If we do opt out, I can only hope that the noble Lord, Lord McNally, is right. If there is indeed that risk, as I think that he accepts, in opting out, surely the next question should be: what do we actually stand to gain by opting out; what are the advantages? Here, I find myself in agreement with the speech of the noble Baroness, Lady Smith of Basildon, on 9 July. It is true that the Government could say that they had repatriated, to use that great word, 95 powers taken from us by the European Union, but what would that mean or be worth in practice? How many of those powers have any importance for us today? How many are even relevant today? I am, of course, not referring to the 35, but to the other 95.
The noble Baroness asked the noble Lord, Lord McNally, to give us some details about what we have to gain by opting out of the other 95. As I remember, she pressed him for some figures. At the bottom of column 234, the noble Lord did give some figures. However, he went on to say that, in asking for figures, the noble Baroness was missing the whole point. He said:
“Through today’s Statement, the Government have sent a clear message that we have addressed the problem left by Protocol 36”.—[Official Report, 9/7/13; col. 234.]
With respect to the noble Lord, it was surely he who was missing the point, not the noble Baroness. If we have nothing to gain by repatriating the powers contained in the 95 measures, what on earth is the problem to which the noble Lord referred? What is the point of opting out? It could be said that we might be able to renegotiate the European arrest warrant if we opt out, but why cannot we do that without opting out? What is the objection to our attempting to do so?
Until, therefore, it is demonstrated that there is something to gain from opting out, there is, to my mind, no problem. The game on which we are embarked—as the noble Lord, Lord Bowness, said on 9 July and repeated again today—is simply “not worth the candle”. That was the view expressed by the European Union Committee at paragraph 274 of its report and it was the view expressed by a group of distinguished academics led by Professor John Spencer last August. I hope that even now the Government will listen to that view and call a halt to this unnecessary and possibly even dangerous exercise in which we seem to be involved.
My Lords, I must declare an interest, as a member of EU Sub-Committee E, one of the two sub-committees that produced the report that we have been discussing this evening. I also remind the House that I am a trustee of Fair Trials International, which has a particular interest in the operation of the European arrest warrant. Given the lengthy speakers list and the short time available to us, I will cut to the chase.
For me and my noble friend on the Front Bench, judging by some of his opening remarks, one of the fundamental problems that the Government faced in addressing this opt-out decision is the nature of the wording of the opt-out negotiated under Protocol 36 by the last Government. This is its all-in or all-out nature. There is no picking and choosing; no matter how futile, irrelevant or unnecessary a particular measure may be, the totality has to be accepted or rejected.
I was glad to hear from the noble Lord, Lord Hannay, that on reflection he would not divide the House on his amendment. That would have seemed an unwise course of action. First, it would have treated the issue as black and white. As I said, while that construction is placed on us by the wording of Protocol 36, within the areas covered by the protocol the pluses and minuses of the policy issues are much more nuanced. Secondly, while the Government should have responded earlier to the joint sub-committees’ report—I entirely share the view of other noble Lords that producing the response at noon today is really not good enough—nevertheless Members of the House not on those sub-committees should have the opportunity to express their views this evening. That answers the point made by the noble Lord, Lord Richard, about the rationale for this debate. It will no doubt help to inform the Government’s thinking. Finally, as I understand it, this is only the first time round the track, because we will come back for a further debate and discussion as the Government’s thinking and approach to each individual opt-in or opt-out decision become clear.
My Lords, since the noble Lord quoted me, I thank him for giving way. He says that the purpose of this debate is to help to inform the Government’s views. Why, in that case, is this not a take-note Motion? Why is it framed in the express terms of the opt-out?
If the noble Lord reads the Motion before the House, he will see exactly what it is. It gives Members of your Lordships’ House, particularly those who have not participated in the sub-committees’ deliberations, a chance to express their views. That is entirely appropriate.
That is true, but it would have been unwise to have proceeded with a black-and-white decision along the lines that we are operating, as I explained.
In the remainder of my remarks, I want to concentrate on just three points. These are the different categorisations of the 130 opt-out decisions that we are looking at. First, there are the 40 or so that are considered redundant or inapplicable. Some noble Lords and some members of the sub-committee have argued that there was no point in disturbing these particular sleeping dogs. I am afraid that I take a more fundamental approach than that. Where possible, one should remove redundant provisions from the statute book. Leaving such provisions extant, however innocuous they may seem at the time, can cause unforeseen problems in the future, as to both applicability and compliance. From my point of view, the Government were right to take this opportunity to clean up the directives in this way.
The second category is of those directives to which the Government seek to opt back in. Primarily, they focus on enhancing the international dimension of the fight against organised crime. It is more than ever a self-evident truth that crime, along with many other activities, has gone global. The European dimension to this global challenge has formed important elements of many reports from your Lordships’ various EU sub-committees. I strongly support decisions to continue with hard and practical measures in this field: the joint investigation teams, exchange of information under ECRIS, mutual recognition of confiscation orders and so forth.
Not all the directives are perfectly formed. I am pleased that, while recognising the value of the European arrest warrant—I entirely share the views of noble Lords who have pointed to its particular importance in the relationships between the UK and the Republic of Ireland—nevertheless improvements can and should be made. These should be in areas such as proportionality, not allowing people to be held for long periods without trial overseas and using videoconferencing to enable people not to have to travel, particularly where the case against them is not as sure as it might be. For these global security matters, we should opt back in and I am glad to see us doing it. If it is in our interests to improve global security, I see no reason why fellow European members should not wish to collaborate with us to ensure that.
Finally, I turn to the third category of directives, to which the Government propose not to opt back in—the most challenging area of our discussion. I am no lawyer, but my concerns as an external viewer are threefold. First, how does one combine into one legal framework cases that emerge from two different legal traditions: the investigative approach, followed by most EU member states, and the adversarial common law approach of the UK, Ireland, Cyprus and Malta? Secondly, to what extent does any potential judicial activism of the European Court of Justice represent a challenge to our established legal procedures? Thirdly, what will be the long-term impact of the European Convention on Human Rights, although an entirely separate structure, on the first two? I do not pretend to have clear answers to these questions and I am not sure that many other people do either. In the circumstances, the Government are wise to proceed slowly, to watch developments and to react accordingly. Joining in will surely represent a one-way ticket and I am not yet convinced that the UK should be embarking on that journey.
In conclusion, given the restrictions imposed by the wording of Protocol 36, the Government are taking a broadly sensible approach by, first, removing superfluous and redundant legislation; secondly, by rejoining those directives that help to increase the security of Europe as a whole; and, thirdly, awaiting the clearing of the fog that still hangs over a number of important public policy issues. That is why I shall be supporting the Government tonight.
My Lords, my old friend the Minister was right on one thing, anyway—the European Union Select Committee’s report is an excellent one. That is why it was deeply disappointing not only that we did not get the Government reply until around lunchtime today but that it is such a flimsy response. It is 22 and a half pages long, most of it just repeating the recommendations of our Select Committee and making inadequate responses to them. In apologising for the delay, the Government have said that it arose to ensure as comprehensive and as detailed a response as possible. Comprehensive and detailed—that is an unbelievable description of this reply. Perhaps the Minister who is to reply could tell the House what detail we had to wait for. What detail could not have been provided many weeks ago?
This is a serious matter. We are talking about the threats of terrorism and organised crime. The Government, in moving in this direction, are putting back the fight against terrorism and organised crime and thus putting citizens in danger in a vain attempt to appease anti-European Tory MPs and particularly the UKIP-ers, as my noble friend Lord Tomlinson said. It is a vain attempt. The Guardian today reported that the first report of the balance of competences review has been published, which is supposed to help to appease the anti-Europeans and UKIP. It has failed to satisfy Mr Farage, the Alf Garnett of British politics, who described it as a,
“futile and cynical PR exercise”.
Perhaps I can say this to my friend the noble Lord, Lord McNally: Mr Farage will never be satisfied. One of my colleagues likened him to Oliver. He will continually ask for more and more, so it is no use trying to appease him.
Over the past five or six hours I have been able to look at the reply to the report. On the balance of competences review, of which we have had the first part today, the Government claim that they are two separate exercises. That is complete nonsense. Of course the balance of competences review has a much wider remit, but reviewing justice and home affairs and not completing that until 2014 means that these two exercises are related to each other. Surely there must be some follow-through or cross-over between one and the other.
The response to the report refers to the devolved Administrations and gives a list of all the meetings. In fact, almost a page is taken up by a list of the meetings that have taken place, but what the response omits to say is that as far as Scotland—just one of them—is concerned, the Lord Advocate and the Cabinet Secretary for Justice have grave concerns about opting out of the European arrest warrant without any guarantee of being able to opt back in. The crucial point is that lack of a guarantee of the ability to opt back in. They point out that the European arrest warrant is an important tool to combat cross-border crime; I think that we would all agree with that. So why opt out of the warrant? In its report, the Select Committee said that,
“there are compelling reasons of national interest for the United Kingdom to remain full participants”,
“we have identified no persuasive reason for the United Kingdom to withdraw”.
The noble Lord, Lord Hodgson, has just said that all these defunct measures clutter up the scene, but given his background I would ask him to take a look at some of the defunct measures that we have in our United Kingdom legislation. There are 10 or even 100 times as many, but we are not spending time clearing them up or repealing them. If they are doing no harm, why are we going through this huge exercise just to get rid of things that are not causing any harm to anyone when we do not know whether we will be able to opt back in to things that are absolutely vital to everyone? The Government say that they are “seeking” to rejoin. The word “seeking” is the important one. The European institutions may “seek” to impose conditions, as the Government have conceded.
The delay also means that we are wasting valuable time, as a huge number of officials are involved in these kinds of debates. The cost is enormous as well. The noble Lord, Lord Maclennan, asked a serious question: if we opt out and then we opt back in, are we then subject to the terms of the European Union Act 2011? Do we have to go through the referendum procedure? The noble Lord, Lord McNally, did not have time to consider it so I do not blame him for not replying, but the noble Lord, Lord Taylor, has had a few hours to do so. He has officials, around five of them, who no doubt are on the telephone to lots of others. I hope that they will come back so that he is able to answer that question.
I do not want to go on for too long so I shall make two last points. I must say that I think that this is a very sad day for the Minister. As I said, the noble Lord, Lord McNally, is a good friend of mine. I ask him to remember the 1970s and early 1980s when he and I were members together of the Labour Movement for Europe, arguing for greater competence and more powers for the European Union. Indeed, he went much further than I did; he went so far as to leave the Labour Party and set up a new party with the noble Baroness, Lady Williams, and others so that he could fight for Europe. Where is he today? Where is that Lord McNally now? Where is the Tom of those days? He comes in and reads out verbatim something handed to him by the Tories—his master’s voice.
Finally, I must say that the one person who disappoints me even more than the noble Lord, Lord McNally, is the noble Lord, Lord Hannay. The noble Lord, Lord Hannay, knows more about this than anyone else. It reminds me of the Schleswig-Holstein question. There were three people who knew about it: one had subsequently died, one went mad and the other one was the noble Lord, Lord Hannay of Chiswick, in this case. The noble Lord, Lord Hannay, knows more about this issue than anyone else. He knows—I have heard him say it in the committee—better than anyone the dangers of opting out without any guarantee of being able to opt back in on these vital issues. That is why I am very disappointed that he has been conned by the Government. In all the machinations that have taken place, the noble Lord, Lord Hannay, and his supporters have been conned. The opt-out is bristling with problems. The only way to express concern about it is to vote against the Government today. I urge any Member—not just on this side and on the Cross Benches but on the other side—who has real worries about opting out to take that course of action.
My Lords, it is a pure joy to follow the noble Lord, Lord Foulkes, and also to be able to say that I agree wholeheartedly with everything that he has said. I declare an interest as a member of Sub-Committee E of the European Committee.
We are dealing with 130 different measures. Whether that figure is exactly right—whether it is 128 or 132—matters not. We are dealing with a body of measures that essentially constitute a potpourri. There is no family or monolithic consistency to them. They spread over a huge range of possibilities. Some of them are vital to the national interest. Some are highly relevant and useful. Others, at the other end of the spectrum, have fallen into dissimilitude. Many of them have never been relevant at all. Others had only a most minimal and marginal impact upon our interests. If anybody therefore concentrates upon one, two, three, five or 10 of those, one is doing the whole issue a disservice. One can look at them only as a totality. Looking at all of them together and asking where the United Kingdom’s interest lies—whether it is a disbenefit or an advantage to take course A or course B—is surely the only possible way that reasonable, fair-minded and balanced people can look at this situation.
This has now been going on for five years; we have had a long time to think about the matter altogether. It seems to me that the Government can never say that from any point in time have they had an open mind on the matter. If they were able to show that, I would gladly withdraw that serious accusation. However, I do not think that there can be any question of their having looked at the matter in an objective, cool and statesmanlike way and having asked, “What is our duty towards this kingdom in the circumstances?”.
In fact, there is a howling fallacy in the government case and it is as simple as this. If one looks at the Motion tonight or the matter that was placed before the House of Commons, the Government’s argument is on two levels. As far as 95 matters or thereabouts are concerned, they say nothing in justification of their being ousted for ever. As far as 35 matters are concerned —the ones to be rejoined and readopted—they say that there is a test of the national interest. The question that I very humbly ask the House is: why should the test of national interest be applied to one group but not the other? Why should the test of national interest not be applied to each and every one of the 130? However, that is not the test. In so far as the question of ousting some 95 or so is concerned, the test is a knee-jerk one. It is Europe. We do not like Europe. One can almost hear the words of Cato in the Roman Senate—not “Carthago delenda est” but “Europa delenda est”. That is the clarion call. Europe must be defeated and challenged at every point. That is the real issue.
If one looks at the statements made by the Government over the past few years, it is abundantly clear that there has never been any objective, open-minded approach to the question. Mr David Lidington, the Minister for Europe, in December 2011 made it quite clear that as far as he was concerned all the evidence would be produced, all the discussions would be reported and Parliament would be assisted in every way to come to the most mature and objective conclusion with regard to this matter. Then, on 15 October last year, we had the Home Secretary making clear that there would be a general opt-out—it had to be en masse; there was no other way—but that the 35 would be regarded in the light of the national interest. However, three weeks previous to that, as we have already heard, the Prime Minister had seen fit to speak to journalists in Rio de Janeiro and had said that we would exercise the opt-out.
The situation, therefore, is that the opt-out is a fact and a reality. It is an irrevocable legal consequence once it occurs; but in so far as rejoining is concerned, that is an aspiration. We may be able to achieve that in respect of all 35, but we may not be able to, as there may well be conditions that we will find impossible to accept. There may well be a hiatus. I cannot remember now whether hiatus is a second declension noun and therefore whether “hiati” is the plural, but there may be several hiatuses and it may very well be utterly destructive as far as many institutions are concerned, including the European arrest warrant, Europol and Eurojust and so on. Therefore, a high price may well have to be paid. What for? For nothing at all. The Home Secretary made it clear on 15 October last year that some of these 95 matters never applied to us in the first place. Many were redundant and many were minimal in their effect. What earthly motivation can there be to take a risk just in order to wipe the slate clean of such irrelevant matters?
I believe that the Government are acting here with less than total sincerity and honesty. Somebody asked Cardinal Richelieu, at the end of this life, why he had been so successful in the government of France. He said, “My son, I lied, I cheated, I dissembled, I misrepresented and I swept it all inside my cardinal’s robes”. The Government here have hidden a very great deal about what their actual selfish motivation is and swept it all into the silken robes of the union jack.
My Lords, the change in wording of the government Motion poses me with a dilemma. Although I wholeheartedly support the decision to exercise the opt-out, I have to say that I am not in any position today to want to commit to endorsing opting back in to 35 measures and, in particular, these 35 measures.
Various Members opposite have suggested that the Government were seeking to pander to, as the noble Lord, Lord Hannay, said, the “wilder shores of Euroscepticism”. I am afraid that the Government, in attempting to cosy up to the Europhile cabal, have left the mainstream Eurorealists in the country out there somewhat bemused. It is a dilemma that the Government will have to resolve. I believe that a strong justification is needed to remain in any of these measures, although I know that that goes against the conclusions of the EU Select Committee report. I am normally a great supporter of the wisdom and analysis that comes out of the European Select Committees but I have to say that I was thoroughly disappointed with this report, which started off with the assertion that the committee concluded that proponents of opting out offered no,
“convincing reason for exercising the opt-out”.
If it started with that assertion, it is no surprise that it ended up—
I am very grateful to the noble Lord for giving way. If the report started with that, it is odd that the paragraph is numbered 275. The report ended with that because its conclusion was based on a vast amount of evidence and was supported by members of both sub-committees and the overall committee, from all parties and from none. That is worth remembering.
The noble Lord might like to note that the phrase is in the summary at the front. I will explain why I, for one, think that that is a totally incorrect conclusion. There is a strong reason for opting out of all these measures. Maybe there are reasons for opting back in to some of them, but there is a strong reason for starting with the presumption that we should opt out. The mistake that the committee, and I am afraid maybe the Government, made was to look at each of these measures pragmatically, on the marginal basis of whether there was some value in each particular measure. That ignores the fact that every one of these measures has a price, which is the transfer of some sovereignty from the UK Parliament and the UK courts.
There is a bigger issue, which the committee totally failed to address, although I am sure that the evidence was presented. Where measures are transferred to European legislation and European courts, where is the democratic accountability for those laws and judgments that govern the freedom and justice of UK citizens?
No, my Lords, I would not agree, because it comes under the jurisdiction of the European Union. A measure of co-operation would be if such a thing were agreed under the European Council, which is what I would certainly advocate. We are talking not about co-operation but about legislation from a European body, and opting in to any of these measures is a one-way, irreversible transfer of the power of this Parliament to legislate on the justice, freedom and criminal acts of UK citizens.
There is no reason why the UK cannot co-operate with other countries to do exactly that. It does not need the European Union to legislate for that. I am going to make progress because otherwise we will be here all night.
The fact is that, once we have opted in, the normal EU legislative processes take over. That means that any one of these measures, however nice or gentle they may appear now, can be changed by the EU legislative process. That means that there will be qualified majority voting on all these measures once we have opted in. The UK will not have a veto, and the UK Parliament will not be able to take a view on whether those measures are just and appropriate treatment for UK citizens because we will have opted in to something where the European legislator can decide on changes to any of these measures by qualified majority voting.
When we pass laws, we have to think not just about how Governments act now but about what future Governments may do. We have very little control over the way in which future Governments in this country may operate, and we have even less control over what may happen to Governments in other parts of the European Union. This amounts, in effect, to a huge Henry VIII transfer of powers out of this country to a body over which this Parliament will no longer have control. This is happening in a vital area of law affecting the criminal justice system and the freedoms and rights of every UK citizen. I cannot see how the UK Parliament can happily stand by and say that we should not opt out of that, and opt back in to things only where there is an irrevocable case that it is the right thing to do.
It seems to me that many of these 35 measures go far beyond what one could justify in terms of benefiting UK citizens without running the risk of democratic deficit. The European arrest warrant has been mentioned many times. Fundamentally, it allows courts outside the UK, by laws passed outside the UK, to determine that a UK citizen should be deprived of his rights and sent to another country to face justice and internment without any UK court having the right to decide whether those laws were just and whether the evidence justified it. I do not believe that any of us can stand in front of a UK citizen and justify that as being in their interest. It may be efficient—dictatorship is efficient—but it is not democratic. The Government say that they have some measures that will ameliorate the worst aspects of that. I am not sure—and this House needs to be sure—that those measures will actually stand up against the European Court before we can be satisfied that the European arrest warrant has been dealt with. The same is true of the measure on the mutual recognition of confiscation of assets, where individuals in this country can have their assets frozen and confiscated by order of a court outside the UK without any UK court having the right to challenge the evidence and interrogate whether or not those laws were being applied appropriately.
Europol and Eurojust may sound like good ideas but what may they become? Once they are evolved by QMV over a period of years, what will we have signed up to? We do not know. That is why I believe that we should opt out and negotiate things on a bilateral and multilateral basis under the Council of Europe, where we have the choice that if we do not like those measures, we can pull out and Parliament can legislate. Parliament should retain sovereignty over things which affect fundamental freedoms and justice in this country.
The noble Lord, Lord Richard, asked the Government for an assurance that the word “endorse” in this Motion meant that the Government were committed to these 35 measures. I have to ask my noble friend to give exactly the opposite assurance—that while the Government may go into these negotiations seeking reasonable agreements on these 35 measures, there will be no irrevocable decision tonight that the UK will opt in to them without this House having a much longer and more detailed opportunity to debate each one, and the Government giving us a sound justification for why they thought it was appropriate to remove sovereignty from the British people.
Well, my Lords, that was the authentic voice of dogmatic anti-Europeanism and Euroscepticism. Clearly, the noble Lord very honestly believes what he said. He is totally entitled to say it and those of us on the other side of the argument can only take comfort from how weak, emotional and, in respect of his remarks about the Select Committee report, footling his arguments were.
I have been enormously struck, as I imagine the whole House has been, by three aspects of the Government’s nature and manner of doing business, which have been thrown into relief by this whole episode. The first is their extraordinary incompetence in evidently not getting any legal advice before they proceeded down this road. Nobody in the private sector would dream of going into a complicated negotiation of a totally new kind, with new risks attached to it, with important partners on an important matter, and not getting appropriate legal advice.
It was quite clear from the embarrassment and evasion of the noble Lord, Lord McNally, when he was asked the question by the noble Lord, Lord Maclennan, earlier that he did not have the faintest idea as to whether or not the procedure proposed by the Government risks triggering a referendum under the Government’s own European Union Act. I hope that the Minister will have thought about this and perhaps got some legal advice by the end of the debate, but the Government should have got a definitive opinion from the Attorney-General before they set off down this road in the first place.
Perhaps it may be of some help to say that the Minister who is set to reply from the Front Bench was asked that question earlier today and was able to give a very definitive reply, in a meeting to which all the Members of this House were invited, if they wished to attend.
I am sure that the Minister is very grateful for the defence which the noble Viscount has just given him. No doubt at the end of proceedings the noble Lord, Lord Taylor, will be able to deal with this matter definitively.
The second aspect of the Government’s conduct that strikes me, and I think would strike anybody, is the extraordinary way in which they have treated Parliament. Not to reply at all to a very weighty document produced by two sub-committees jointly, which is unusual procedure in this country, for three months until a few hours before the relevant debate arises, is either almost unbelievable incompetence or discourtesy to the House that borders, frankly, on insult.
This Government like to say that they wish that national Parliaments had a greater say in matters in the European Union. In future that sort of statement will be treated with ribaldry, as hot air—there is another English word that better describes it but it is probably an unparliamentary word so I certainly will not use it. It is quite clear that on this occasion the Government have provided a really appalling example of cynical and dismissive treatment of their own national Parliament and I hope that no other Government in the Union are tempted to follow them down that very bad path.
The third aspect of the Government’s performance is the one that most attention has quite rightly been focused on—the way in which they reach policy decisions and their policy-making procedures. When I was a Minister and was faced with difficult choices, I would draw up a balance sheet of costs and benefits of any particular measure. I would try to weight them to achieve a balance and use that as an intellectual framework for discussions with officials or, where necessary, with colleagues. I was never conscious that I was doing anything remarkable or unusual; I assumed that most responsible Ministers went through a similar kind of procedure either explicitly or implicitly. Not so this Government.
The Motion mentions national interest, but it is quite clear that national interest has not guided the Government in this matter at all. You might assume that if you have 135 measures and you want to opt out of 100 definitively and opt back in to 35, those 35 were in the national interest and the 100 were not, which is why you want to get rid of them. The Government are even prepared to pay a significant price in terms of uncertainty, use of good will on the continent with their continental and Irish partners, and the administrative cost of going through all sorts of elaborate renegotiations, no doubt having to cope with the lacunae and lapses that arise. They are prepared to do all that in order to save the country from being tied to the 100 measures that they wish to opt out from.
In fact, as has been said this evening, of those 100 measures that the Government do not want to be associated with, not one of them is contrary to the national interest. Some of them are regarded as defunct or unnecessary, in which case they have a neutral significance. They are neither positive nor negative. But some of them are useful, although not dramatically vital in the way that the European arrest warrant or Naples II are really vital to the national interest. However, the Government’s own document, the White Paper—which, believe it or not, I have read through—deals with some of the measures that the Government propose to drop, to opt out of and not to opt back in to. Take, for example, item number 2 on judicial co-operation. The Government’s own document says:
“We judge that non-participation in the network may diminish the ability of the UK to coordinate complex investigations”,
et cetera. So there is a cost to opting out of that, which the Government themselves acknowledge. It is not in the national interest to opt out, it is contrary to the national interest. It is a cost, not a benefit.
The same thing applies, for example, with item number 5 on the exchange of information on drugs. The Government say:
“We judge that there may be a minor reputational risk if the UK does not seek to rejoin this measure”.
It is minor; it is not very important, but it is nevertheless a negative. It is reducing the national interest, not enhancing it, to opt out.
On item number 20 on new synthetic drugs and a warning system, the Government state:
“The UK’s participation in time-sensitive EU wide information about prevalence and harms of new substances enables us to influence EU and Member States’ legal responses, supporting enforcement and judicial co-operation … especially with the role of the internet and use of internal transit countries”.
This is a positive thing that the Government are giving up; it is not negative.
Similarly, on anti-corruption measures at item number 5—they are important, one might suppose—the Government say that given the increasing focus on tackling corruption in public office:
“The costs of membership are minimal and there are some benefits”.
So the Government are again giving up some benefits by their own admission.
Item number 87 is on combating terrorism, which is an important matter. The Government state:
“The offences created by the Decision are a useful standard for terrorist offences and by ensuring other Member States can prosecute relevant terrorist behaviours a more hostile environment for terrorists ought to be created across Europe”.
The Government are again giving up something of positive importance.
On item number 43—the prevention of unauthorised entry, transit and residence—the Government state:
“The framework decision assists with EU-wide enforcement of UK law”.
Surely that is in our national interest.
On item number 66, on the exchange of information and co-operation concerning terrorist offences, the Government state:
“Continuing to share information is therefore important both operationally and in reputational terms”.
And so on and so forth. There is another one on football hooligans, where the Government say that,
“non-participation may result in some increased costs”.
Again they recognise that there are costs, not benefits, in opting out. I could provide many other measures if I had time.
What all this amounts to is simply that, yes, the main national interest in these measures is secured by opting back into the 35 but by opting out of the remaining 100 we do not add to the national interest, we reduce it. In other words, the Government have taken a completely irrational decision. They incur the costs and risks of this complicated process of opting out and opting back in not to protect this country from some problems or costs but to deny it some additional benefits—if not enormous ones. We all know why they have done so: to buy off the Eurosceptics, and the cost of that is quite easily calculated. First, there are the costs and risks associated with the opting back in procedure; secondly, there are the not insubstantial or non-existent benefits—as I have explained—of those measures that we are now definitively opting out of. That is how this Government take their decisions. National interest has been sacrificed for a purely party political agenda. That is a fact and the Government cannot get away from it.
My Lords, I was also a member of the Select Committee on the opt-out decision, under the wise and thorough chairmanship of the noble Lord, Lord Hannay, and my noble friend Lord Bowness.
It is right at this stage in the debate to remind ourselves what that report said in a number of summary points. There is no detriment to the national interest of not activating the opt-out, no undermining of our common law legal system and no evidence that the Court of Justice of the European Union has been judicially activist or that its rulings set out to undermine the autonomy of member states’ criminal justice systems. It also expressed concern about our own security as a country if we no longer co-operate with the European arrest warrant, Europol and Eurojust. So I certainly started out opposed to using the opt-out, in contrast with my noble friend Lord Blackwell. I welcome the decision of the Government to support not only the 35 articles but also the supervision order that has been delayed by recent discussions. The coalition has arrived at a fair and workable compromise on the justice protocols and I will support the government Motion tonight.
Let us remind ourselves what the Select Committee said about the initial problem, which started in the manifestos of the three main political parties. The Conservatives in their manifesto,
“sought a mandate to negotiate the return of ‘criminal justice’ powers, among others”,
back to the UK. The Liberal Democrats in their manifesto pledged to:
“Keep Britain part of international crime-fighting measures such as the European Arrest Warrant … Europol … Eurojust, and the European Criminal Records Information System, while ensuring high standards of justice”.
The Labour Party manifesto made no reference at all to this matter, despite the fact that Labour initiated the whole opt-out procedure. I do not know why it did not mention it. Was it divisions between the Blairites and Brownites, or was it simply trying to disguise its own pro-Europeanism? As the noble Lord, Lord Hannay, said, it actually set up a cat’s cradle of the opt-out that we have had to resolve. Sadly the noble Lord, Lord Foulkes, is not in his place but I will certainly not take any lectures from him on fighting the cause for Europe. We left the Labour Party, but it was Labour that gave us the complexity of the opt-out. I cannot accept his judgment.
There are key issues that I hope my noble friend Lord Taylor will respond to. We have to answer certain questions. Can we negotiate the opt-ins to our satisfaction? Can we avoid a gap between the opting out and the opting in? Are we using good time to renegotiate the opt-ins when we could have used it to update and improve the existing provisions? However, it is practical politics—it is foolish not to accept and admit that—which are determining this outcome. There has to be a compromise and we in this part of the coalition believe that this is a firm and solid compromise: we have to use the bricks that we have achieved to consolidate our future in Europe.
My Lords, I have known the noble Lord, Lord Stoneham, for a number of years and we have become good friends. I am sure he will not mind my saying that it pains me to see Liberals whom I have respected for their idealism and uncompromising stand on so many things that are vital to our nation going through the process of rationalising and trying to persuade themselves that compromises that they would have condemned out of hand in their days of opposition are somehow acceptable.
I should also like to draw attention to what my noble friend Lord Foulkes said about the letter we received today with the Government’s reply. He drew attention to the disingenuous words about wishing “to ensure as comprehensive and detailed a response as possible”. What the hell is the point of the reply? The reply is there to inform the debate. How on earth can a reply to a serious report, which has been prepared over many months, be taken properly into account in a debate if it arrives just hours before the debate begins? The Government ought to be ashamed of themselves for behaving in this way. We quite understand the tangles and difficulties with which the Government are faced within their own ranks, but this amounts, in effect, to a wanton disregard of the significance and dignity of Parliament itself.
I want to make a couple of points. We have been talking a great deal tonight about the measures—what we will accept and what we will not accept. The measures are not the end in themselves: the measures are means to achieving certain objectives. The objectives that I hope we are trying to achieve are the safety and security of the British people in the sphere of crime and, very much, in the sphere of terrorism. The reality with which we are confronted is both that crime has become highly sophisticated on an international basis in our lifetime and that terrorism is, almost without any doubt, where it is most dangerous, involved in international realities.
There is no way that we can protect the well-being, the safety and the interests of the British people by fooling ourselves into thinking that we would be better at doing it on our own—that we may have to make certain concessions to Europe but that we can pick and choose those things that happen to suit us. If we are to tackle this mammoth strategic task for the safety and well-being of the British people, we have to create an understanding and culture in this country that their interests and well-being are inseparably intertwined with the well-being and interests of other people within Europe, and that we must have institutions working within the realms of security and policing that are effective at the international level. If they are not effective at the international level, we shall be trying to put our thumbs in the dyke that is crumbling all around us. It is crucial that we give this leadership to the nation, and the trouble is that the Government are—
I am grateful to the noble Lord, whom I have known for many years, but he is making a totally false point. Does he not know that there is the most intense and intimate co-operation, for example, between this country and the United States in the intelligence sphere and in other ways, against international terrorism? That is very necessary. These sorts of protocols and directives are totally unnecessary. There will be co-operation with the United States, with Europe and with other countries around the world whatever happens, because we all share the same objective.
Similarly, I respect the noble Lord who has just intervened, but I ask him to read the reports to which we are referring today. Under the distinguished chairmanship of the noble Lords, Lord Hannay and Lord Bowness, we listened to witness after witness from the front line of this operation saying how badly they needed this European co-operation and how it would be very unfortunate in any way to jeopardise it, because it would not make the work that they were trying to do on behalf of the British people more effective. Read the reports: one expert or front-line worker after another in this operation said that.
I have one further point. What has been so sad in this debate—not the debate today but the one that is going on all the time in Britain—is the failure to distinguish between what is emotion, what is prejudice and what is fact. Because I was so concerned about a particular issue that was receiving a lot of attention about the way in which European institutions made it difficult to repatriate prisoners when they had completed their prison terms, I tabled a Question on the issue. I asked the Government,
“on how many occasions in 2012 they were prevented from deporting criminals who were not United Kingdom citizens following the completion of their sentences by rulings of the United Kingdom courts citing Article 8 of the European Convention on Human Rights”.
I would have thought that the answer to that Question would have been pretty central to serious deliberation in a debate of this kind. It is seven weeks since I tabled that Question. Do the Government not keep records? Do they not do any analysis? Why have I had no answer to that Question? It is part of the refusal to face facts that I suspect will not be very helpful to the Government’s case or to prejudice and the xenophobic cause. Why can we not have these facts before us before we try to undertake serious consideration in Parliament?
My Lords, I speak as a member of the sub-committee of the European Union Committee and as one who participated in the inquiry that resulted in the 13th report. I do not speak on behalf of the committee.
It is perhaps desirable not to proceed with undue haste in making a decision on this matter. No decision is required until May 2014. The Government are arguing that they need the additional time for negotiations, but it might be wise to contemplate the fact that, as other noble Lords have said, some of the consequences of the opt-out, if matters proceed as indicated, may be less than favourable for the United Kingdom. If the decision is made, on 1 December 2014 the Court of Justice and the European Commission will have no powers in respect of these matters over the UK, but the pre-Lisbon measures will remain in effect in the other member states. If the decision was made, then until—or perhaps unless—we rejoined we would have no access to a number of processes and facilities that expedite the fight against crime and terrorism.
We would cease to have access, as has been said, to the European arrest warrant. We would cease to have access to Europol, led by Rob Wainwright, who has been described by the Home Secretary as doing a very good job as director. We would lose access to the EU judicial co-operation unit, which costs just £360,000 a year and provides centralised facilities for liaison in The Hague. Instead, we would have to have bilateral arrangements with the judiciary in each member state. We would lose our capacity to be involved in joint investigation teams. The Government told the committee’s inquiry into the EU internal security strategy that they considered these joint investigation teams to be a valuable tool, and the Government supported the Commission’s plan to expand their use.
I could go on and on describing the benefits that we would lose if the Government were to opt out, or even to fail to opt back in within a limited period. The Home Secretary said that the Government are acting on the grounds of principle, policy and pragmatism in making this decision. The EU Committee took extensive evidence, as noble Lords have said, from a wide range of witnesses in the course of the inquiry. Overall, the response was one of massive concern about damage to the UK’s interests. I refer the House to paragraph 157 of the 13th report, which states:
“The Lord Advocate told us that he would have ‘real concerns’ if the UK were to opt out of the EAW and the DPP told us that to do so would result in a poorer deal for victims of crime. ACPO … emphasised the significant percentage of EU nationals from other Member States that were arrested in London each year and suggested that it would be more difficult to return them to their Member State of origin”.
It also suggested that,
“withdrawing from the EAW would be a mistake and could jeopardise justice and public safety … the President of Eurojust told us that it would make it harder for the UK to tackle cross-border crime”.
JUSTICE and Justice Across Borders stated that,
“criminals would exploit any differences that arose between any different extradition arrangements … and others suggested that it could result in the UK becoming a ‘bolt-hole’ or ‘safe haven’ for criminals … organised crime or terrorism”.
The report concludes that the European arrest warrant is the single most important pre-Lisbon measure and that it is inevitable that the extradition process would become more protracted and cumbersome, potentially undermining public safety.
No system is perfect. International co-operation on criminal justice measures will always require amendment to make them work as well as possible. Even the criticisms that have been made of the European arrest warrant relate mainly not to the warrant itself but to the consequences of people being sent to certain countries in terms of long periods of pre-trial detention et cetera.
Withdrawing from protocols or exercising the opt-out will not enable us to have any influence to improve matters in that respect. In his review of the operation of the European arrest warrant in 2011, Sir Scott Baker concluded that it had improved the scheme of surrender between member states and that broadly it operates reasonably well. He made recommendations and the Government committed to work with the Commission and other member states to improve the situation.
At a time when we are fighting international terrorism with all its devastating consequences for individuals, national economies and the general global situation; at a time when international organised crime is growing rapidly and when levels of people trafficking, smuggling and white collar crime represent a significant threat, there can be no logic in withdrawing from existing arrangements that work in the interests of the UK, even if we hope to rejoin on our terms—something which may not be available to us.
In all the evidence we took as a committee, very few witnesses drew our attention to any specific measures that they considered to be detrimental. The committee concluded:
“We therefore consider that there are compelling reasons of national interest for the United Kingdom to remain full participants in most of the measures … As to the remainder we have identified no persuasive reason for the United Kingdom to withdraw from them”.
We need an extradition process. We need to continue to have access to Europol and Interpol—as the noble Lord, Lord Lawson, says—and other national and international intelligence-handling operations so that we can become aware of suspected threats of crime or terrorism, and so that we can act accordingly. We need the benefits of joint investigations with all their logistical support mechanisms. We need to be able to take advantage of these measures. The Government of course recognise this and state that they will opt back in. However, it will not necessarily be as simple as that. As the committee stated in paragraph 223 of its report:
“While in our discussion with the Commission we found no inclination on their part to obstruct or make the process of opting back in difficult, seeking to rejoin particular measures would not necessarily be automatic or straightforward. Either the Commission, or where appropriate, the Council, may seek to impose conditions on such requests”.
The Home Secretary, in evidence to the Committee, accepted that the Commission may make it a requirement that the UK rejoin or opt into a particular measure to preserve the coherence of the totality of the policing and criminal justice measures. The Commission made clear in its evidence that it considers coherence to be a matter of paramount importance.
All this is happening in the context of debate about the current European arrangements and our membership of the European Union. Other noble Lords have spoken quite passionately about that on occasion.
For Northern Ireland and for the UK as a whole, the issue of continued involvement in these measures is critical. There is still a terrorist threat from republicanism in Ireland, north and south. There is also a threat from international terrorism. Today, according to the Government, the situation is that in mainland Britain an international terrorist attack is a strong possibility, and in Northern Ireland a terrorism-related attack is possible but not likely. In Northern Ireland, an international terrorist attack is a strong possibility and a Northern Ireland-related attack is highly likely.
It may be that the Government are relying on the interests of other member states in our participation in these arrangements to force Commission acceptance without undue conditions on the UK’s request to opt back in. I have heard and seen extensive concern being expressed both internationally and within the EU about what the UK is doing and its potential damage not just to our country but to other countries’ interests. However, while the Commission will make the majority of the decisions, the Commission of course comprises commissioners from member states who are required by virtue of their position to act in the interests of the European Union rather than in their national interests. Notwithstanding that, it would be unwise to anticipate that the Commission will simply accede to requests for re-admission. It is surely necessary to ensure that our anti-terrorist, crime prevention and detection operations are as strong as possible.
The biggest number of European arrest warrants to the UK over the period from 2009 to 2011 were from Ireland, the Netherlands and Spain. In Ireland and Spain there are a significant number of terrorist incidents.
If noble Lords will just bear with me, I am nearly done. Of all surrenders to the United Kingdom, 70% were from those three countries. I am not scaremongering in drawing these matters to your Lordships’ attention. I have lived with terrorism for 36 years. I have worked in many countries seeking to make good the damage from it. The evidence that the committee on which I was privileged to serve received was both compelling and overwhelming. Let the Government take more time to respond and to contemplate the consequences of the proposal. It is never wise to act when one does not have a full understanding of the possible consequences of such action. We do not yet know the consequences of what the Government are now proposing.
My Lords, I hesitate to prolong this debate at this late hour, particularly as I am very much a novice in matters European. I felt moved to intervene, however, because although my experience in European issues is limited, I have had long and varied experience of policing, fighting crime and keeping communities safe on both sides of the Atlantic. This debate is at least as much about ensuring public safety as it is about the Government’s attitude to the European Union and its institutions.
The Government’s decision to opt out of all the police and criminal justice measures agreed to prior to the coming into force of the Lisbon treaty, and to opt back into only the 35 which my right honourable friend the Home Secretary believes will help us tackle crime and keep our country safe, has been characterised by several noble Lords on the Benches opposite as putting the security of the nation at risk for purely party political reasons; that is, to mollify—I believe that the word used is appease—the Eurosceptics in the Conservative Party. I will make two short points about this claim, which I find unfair and without foundation.
On the basis of my long experience as a civil servant serving Home Office Ministers of both parties in this country, and my experience as a consultant advising public officials on policing in the United States, I assure your Lordships that I have not dealt with a single Minister or public official on either side of the Atlantic—including the legendary Rudy Giuliani—who is more committed to reducing crime and making communities safe than my right honourable friend the present Home Secretary, with whom I have had the great pleasure of working closely for almost two years following the general election.
As for the claim that my right honourable friend is frightened of upsetting the Eurosceptics in her party, frankly, I find that ludicrous. As everyone in British policing knows, my right honourable friend is not frightened of anyone. Her courage and determination are legendary, particularly when she believes that what she is doing will make ordinary families safer.
Finally, I will make a brief point—and it will be brief—about what European professionals in your Lordships’ House call proportionality. I have no doubt that the 35 measures which the Home Secretary intends to seek to rejoin will be useful and will make it easier for our policing agencies to prevent some major crime and even terrorist activities. However, here is where proportionality, or a sense of proportion, comes in. There is no way in which these 35 measures—or, dare I say it, all 130 pre-Lisbon measures—can be described as critical to the overall public safety of our society.
As noble Lords will recall, the official Crime Survey for England and Wales was published only last week. It reported that a total of 8.6 million offences had been committed last year. These numbers do not include the much larger number of incidents of anti-social behaviour which plague our most vulnerable communities on a daily basis. Does anyone really believe that the European arrest warrant, Europol or any of the other 35 measures which the Government wish to retain will make a significant difference to these numbers or to the feeling of security which our friends and neighbours across the country experience as they go about their daily lives?
I do not for a moment minimise the importance of international collaboration or of any of the other measures that the Government want to rejoin. They will certainly help our local police forces and also help our new National Crime Agency to do its job more effectively. However, it is both misleading and irresponsible to argue that the Government are risking the safety of our communities by opting out of the whole package of pre-Lisbon proposals with a view to being able to opt back into those they believe will be most useful. I strongly commend the Government’s Motion to the House.
My Lords, I hope that noble Lords will indulge me if I repeat a quotation that I used some time ago in your Lordships’ House from the French writer Antoine de Saint-Exupéry, who said:
“Perfection is achieved, not when there is nothing more to add, but when there is nothing left to take away”.
As the final Back-Bench speaker in this debate I take his advice to heart. I have nothing more to add to the debate, and I have taken almost everything away from the speech that I would have made if I had spoken earlier. Of course, that does not guarantee perfection, but it might result in brevity.
I will say a word about the question that the noble Lord, Lord Maclennan, raised—and I am sorry that he had to scratch from the debate. On 15 July, the Home Secretary was asked the same question by Mark Reckless MP. She answered:
“I do not believe that opting back into these measures would trigger a referendum under the powers that the Government have”.—[Official Report, Commons, 15/7/13; col. 783.]
Note the words “do not believe”. We do not want the Government’s best guess on this—we want certainty. Are the Government incapable of interpreting their own European Union Act 2011? If so, I am astonished. I hope that the noble Lord, Lord Taylor, can reassure us on this point.
I have much sympathy for part of the amendment in the name of the noble Lord, Lord Hannay, on which he is choosing not to divide the House. It takes the Government properly to task for their cavalier attitude towards—and I might say disdain for—your Lordships’ European Union Select Committee in waiting until today, of all days, to publish their response to its report. As a former chair of that Select Committee, I felt outraged. I am delighted that the noble Lord, Lord Boswell, is initiating an inquiry in his committee into the role of national parliaments in the European Union. This Government, who never cease to trumpet the urgent need for closer parliamentary involvement in EU affairs, must cease to betray their spoken intentions with actions that undermine them. I venture to speculate that, had the Motion been set for a later date, we would still be waiting for the Government’s response. They have been panicked into producing it, and I congratulate the noble Lord, Lord Hannay, on having applied the necessary shock treatment with the wording of his amendment.
Of course, the Government’s Motion refers to a set of circumstances that we on these Benches do not accept. We do not start with the premise that the UK should ask for a block opt-out under Protocol 36—least of all when there is no certainty that our seeking to opt back into measures deemed to be in our interest will meet with the approval of our European partners. The Select Committee’s warning that a blanket opt-out would damage our internal security and the administration of criminal justice has fallen on deaf ears, despite the fact that, as the noble Lord, Lord Bowness, emphasised in his speech, the committee reached its conclusion after listening to the expert views of leaders in the legal, law-enforcement and prosecutorial professions.
In order to opt back into the measures they need never have opted out of, the Government will now opt out of everything and hope for the best. If ever there was a risk of seeing several healthy babies thrown out with the bathwater, this is it. Of course, that is what the wilier and wilder Eurosceptics are itching to see happen. They are happy to support the blanket opt-out, but for them the greater prize would be the failure of the Government to achieve the opt-back-into some if not all of the 35 measures listed in Cm 8671. The Government, with their unwarranted optimism that they will secure from their European partners a successful opt-back-in, risk damaging our national interest and humiliating themselves.
Why does the Prime Minister insist on a wholly unnecessary risk? We know why. It has little if anything to do with improving our internal security or the administration of justice. It has much to do with the security of the Prime Minister and the administration of his divided party. Is that how we must now define “national interest”? The Government risk writing a shameful page in the history of our relations with our European partners if they go on in their current manner on this matter. I believe firmly that the Government have lost the plot—and tonight, they have certainly lost the argument.
My Lords, this has been a fascinating debate. Although in some ways the opt-out/opt-in issue is complex, with the Command Paper showing how technical and detailed each measure is, it is also very simple. The first duty of any Government is to ensure the security and safety of their citizens. Will opting out and then—as the government Motion states—seeking to opt back into the key measures fulfil the first duty of a Government to their citizens? The key word is “seek”. There are no guarantees and there is no definite confirmation that we will opt back into those measures that are necessary to fight crime and terrorism: just an assurance that we will seek to do so. That is not good enough.
Until the opt-back-in is guaranteed, there remains a risk. The consequences of that risk must be evaluated. Crime does not stop at Calais. EU co-operation with police and criminal justice measures are essential in the fight against organised and serious cross-border crime. Drug trafficking, people trafficking, abduction, money-laundering, paedophilia, cybercrime and, of course, national security and terrorism are all the more dangerous and complex because they transcend borders.
Essential reading for this debate is our EU Committee’s report on the implications of the opt-out. It concluded:
“On the basis of the evidence we have received we do not consider that the Government have made a convincing case for exercising the opt-out ... we find that the evidence supports the reasoning of those opposed to its exercise. Opting out … would have significant adverse negative repercussions for … internal security … and the administration of criminal justice in the United Kingdom”.
Those are powerful words indeed from an all-party committee of your Lordships’ House. It took written and oral evidence from 50 witnesses with experience and expertise, including government Ministers, and had numerous hearings and discussions. Its unanimous, comprehensive and detailed report is the result.
Despite earlier rhetoric, the Government have made clear that they accept that a permanent opt-out from all these measures would not be in the national interest. They now accept that the 35 measures listed in the Command Paper are necessary. Therefore, if the Government opt out, there must be a quick, easy and effective opt-back-in.
The noble Lord, Lord Hannay, has succeeded in persuading the Government to amend their Motion to seek to ensure that the Government will honour their commitment to the details of the 35 opt-in measures. Can I therefore ask the Minister who will reply to the debate—the noble Lord, Lord Taylor—to clarify that this is how the Government view the significance of the word “endorse”? Would this Motion preclude the Government from deciding later to change the number of measures contained in the Command Paper—that is, the 35? Are the Government now absolutely committed to the 35 measures? The answer to that is difficult, it seems to me, because on the one hand the noble Lord, Lord Hannay, and most of the noble Lords who have spoken tonight want the assurance that they are but, on the other hand, that risks antagonising the noble Lord, Lord Blackwell, and the 100 Conservative MPs who wrote to the Prime Minister seeking a permanent opt-out of all 133 measures.
A number of questions have been raised in previous debates that Ministers have so far failed to answer, as the noble and learned Lord, Lord Lloyd, said. Have the Government secured a guarantee that we can opt back into these important measures? If not, will the Government still opt out without such a guarantee? What timescale do the Government envisage, or consider is reasonable, from the opt-out until the process of opting back in is completed? Are the Government seeking to amend any of the 35 measures other than the European arrest warrant?
The political negotiations to opt back into these 35 measures could be time consuming, difficult and will no doubt be subject to some political horse trading. Has any assessment been made in this age of austerity of the cost of such negotiations? What are the implications and consequences if we fail to opt back in, including financial? If the opt-back-in is not immediate, transition measures will be essential. The example often used by the Government to justify the opt-out is the European arrest warrant. This was to be part of the great repatriation of powers, the transfer of real power back to the UK that Ministers were so fond of talking about.
The Prime Minister said that the European arrest warrant was “highly objectionable”. Government MPs voted on a three-line Whip against a Labour Motion that would have maintained the principle of the European arrest warrant. One of the reasonable criticisms made of the European arrest warrant is that British citizens can be held in custody for excessive periods in foreign prisons while awaiting trial in conditions that would not be acceptable in the UK. Therefore, I welcome the announcement tonight by the noble Lord, Lord McNally, that the Government will now implement the European supervision order. But why did they not do so before the December 2012 deadline? Why the delay? Are those British citizens in foreign prisons victims of the Government’s anti-Europe rhetoric? But now, the Government have had to admit the effectiveness of the European arrest warrant and that, without it, criminals can evade justice. Criminals could seek to escape British justice abroad, and would be able to hide in the UK to evade the justice of other countries.
I concur entirely with the excellent examples that the noble Lord, Lord McNally, gave, and I have others which I will not go into this evening. I therefore welcome the Government’s U-turn on this issue. However, there are unanswered questions to be addressed before we can be satisfied that public safety is not being put at risk by any interval between opt-out and possible opt-back-in. It is a reasonable question to ask, particularly given that the committee notes in its report that since Denmark exercised its opt-out,
“the Commission had frequently refused permission for the Danes to conclude agreements in certain areas”.
I thought that the question from the noble Lord, Lord Maclennan of Rogart, about a referendum was a perfectly reasonable one to ask. I was surprised by the somewhat heated and exasperated response which he received from the noble Lord, Lord McNally, and by the refusal to answer, especially given the noble Lord’s comments in an article last Monday in which he wrote:
“if Liberal Democrats were in government on our own I suspect we would not be exercising the mass opt-out”.
The noble Viscount, Lord Eccles, helpfully gave an explanation on that point which he had heard from the noble Lord, Lord Taylor. However, as the noble Lord, Lord Grenfell, said, we need certainty on that point. I hope that, in responding to the debate, the noble Lord, Lord Taylor, will be able to give that certainty without the hyperbole that we heard earlier from the noble Lord, Lord McNally. The European arrest warrant is a legal framework that allows countries to extradite. Transition measures will have to be legally robust to ensure the satisfaction of the courts dealing with extradition. I appreciate that I have asked a number of questions, but they are not new or unexpected and would be very straightforward for the Government to answer at this stage. I alerted the noble Lord, Lord Taylor, earlier that I would be repeating these questions this evening.
When we debated the Government’s Statement on 19 July, I asked the noble Lord, Lord McNally, similar questions, plus two very straightforward ones. I did not receive any replies then, but obviously, the Government have now had time to consider those points and I would welcome answers tonight. I am confident that the Government have answers to them now. These questions strike at the very heart of this issue. They were also referred to by the noble and learned Lord, Lord Lloyd. If the Government are prepared to take this course of action—to opt out and then seek to opt back in to the key measures—there must be good reasons why the permanent opt-out from the other measures is so important. So, how many of the measures which the Government want to permanently opt out of are relevant to the UK and are currently being used, and what impact will their removal have? What is the exact number of practical, workable and working measures that the Government are seeking permanently to opt out of?
Of the 133 crime, law and order and policing measures, the Government want to opt back into 35, and an additional seven have already been replaced and the Government have opted in. My understanding is that the measures that the Government seek permanently to opt out of are basically harmless and irrelevant or, as the noble Lord, Lord McNally, said in his opening speech, “obsolete, defunct or simply unused”. His article also referred to the measures negotiated by the Liberal Democrats in the Government as,
“keeping the wheat and losing the chaff”.
Can the Minister tell your Lordships’ House which, if any, of the measures which the Government are seeking permanently to opt out of are harmful to the UK? Or are the Government prepared to risk those measures that even they consider essential by being strong and bold in jettisoning the irrelevant?
Unless the Government now have guarantees that the UK can opt back in with no delays, no interregnum where UK citizens are left exposed, what is the point? Or is the Minister going to inform your Lordships’ House tonight that this is a serious and important repatriation of powers from the shackles of Brussels? I suspect not.
There remain so many questions, but the biggest has to be: why? I look forward to receiving some answers from the noble Lord, Lord Taylor, this evening, because the questions were raised in previous debates and we are still waiting for answers. The Minister has to convince your Lordships’ House that the Government's actions are in the public interest and not, as it so clearly appears, a ridiculous piece of theatre designed to placate what the noble Lord, Lord Hannay, called “those on the wilder side of Euroscepticism”.
Despite the welcome and successful efforts of the noble Lord, Lord Hannay, to achieve what I hope are cast-iron assurances on the 35 measures, without guarantees that we will be able to opt in with no time lag that puts British citizens at risk, we cannot support the Government in their Motion this evening.
My Lords, I am sorry about the noble Baroness’s unwillingness to support the Government on this Motion. If people say that there is no passion or conviction in British politics, they should have been listening to this debate, because it has shown that there is indeed a lot of passion and conviction on this issue.
Before I address the points that have been made during the debate, I join my noble friend Lord McNally in thanking the noble Lords, Lord Boswell, Lord Hannay and Lord Bowness, for their chairmanship of the committee, which produced a formidable body of work for the Government to consider, and its ongoing role in scrutinising this matter. The Government are appreciative of the committee’s high-quality and thoughtful report, which has been integral to the decision-making process behind our decision to table the Motion this evening. I look forward to working with the noble Baroness, Lady Corston, as chairman of Sub-Committee E.
The Government have today replied. Noble Lords have said that it is plenty late enough, but we have replied to the committee’s report on the matter. Copies of the reply are available and I am sure that a number of noble Lords have taken the opportunity to look at it. We would like noble Lords to consider it alongside the letter of 18 July, sent to the noble Lord, Lord Boswell, which can be found in the Library of the House.
To return to today’s business, I am grateful to the noble Lord, Lord Hannay, and to my noble friend Lord Bowness for meeting me yesterday. It was incredibly helpful to me personally, and the amended Motion that we have tabled reflects the outcome of these discussions. I hope that the whole House can support the government Motion. I would regret it if that were not the case.
On 9 July, the Home Secretary reaffirmed the Government’s intention to exercise the opt-out. Noble Lords will be aware of the background to the opt-out and there is no need to remind them of its origins. However, as I listened to the speeches from the Benches opposite, I wondered why, when they were in office, they negotiated the opt-out. They must have believed in it once, so what has happened to that belief? As my noble friend Lord Hodgson asked, why did they take such care to ensure that the Lisbon treaty contained this protocol, the provisions of which we now seek to exercise?
In the other place on 15 July, there was a debate on this issue and a vote to exercise the opt-out and rejoin the measures where it is in the national interest to do so. I am grateful to my noble friends Lord Sharkey, Lord Bowness, Lord Eccles and Lord Hodgson—and many other noble Lords—who said that they find the 35 measures that the Government seek to rejoin sensible. The noble Lord, Lord Williamson, also agreed that these were sensible measures for the Government to seek to rejoin.
I must reassure my noble friend Lord Blackwell that the Government have made a considered judgment on this issue. They are confident that, in using the test of the national interest, they have properly identified those 35 measures that they will seek to rejoin. These 35 measures listed in the Command Paper represent government policy. My noble friend and I will have to agree to differ about whether we are right to seek to rejoin those 35 measures.
It might help noble Lords if I explain what happens next. On that point, I must return to the question of scrutiny and the work of the European Union Committee. I think that all noble Lords accept that the European Union can play an important role in tackling cross-border crime. This Government understand that, but equally we understand that decisions taken at EU level, or about the EU’s role in dealing with crime, must be subject to rigorous scrutiny. That is only correct and the UK Parliament must be sovereign in exercising this scrutiny.
Scrutiny can be an iterative and long-running process, especially on a matter such as this. That is why today’s Motion from the Government invites the European Union Committee to give a further view on what measures it believes we should rejoin. I hope that Command Paper 8671, which sets out those measures that the Government believe are in the national interest to rejoin, provides a useful starting point. I hope sincerely that the House can endorse that list today, but let me be clear that any endorsement cannot pre-empt the work of either the committee here or the committees in the other place in looking at all the measures. I expect that that is the point at which the noble Lord, Lord Davies of Stamford, can apply his scrutineering endeavours, since he went through various measures on which he had comments to make. I expect our committee in this House to come back with a thorough examination of the Government’s decision and I look forward to receiving it.
However, I have to ask the House to note that the Government have committed to not beginning formal discussions with the EU institutions or other member states until November. That is to ensure that the committee in this House and the relevant committees in the other place have time to report. All the reports will be carefully considered by the Government. Further to that, noble Lords will know that there are methods whereby committee reports can be brought before the House for debate. I hope that those will be promptly exercised in this instance as I look forward to a prompt debate on our committee’s report.
My Lords, I am sorry to interrupt my noble friend, but while he is talking about process and procedure can he perhaps explain to me, if to no one else, the following? In the debate in the other place, my right honourable friend the Home Secretary said that the mandate that she was seeking that evening would lead to the UK exercising the opt-out. Precisely when is it envisaged that we will give formal notice to the Council of our intention? Is it to be after we have passed, if we do, the Motion tonight or will it be after there has been consideration of the reports by the relevant committees?
The Government do not have to give formal notification until 31 May, but the votes in this House and in another place provide authority for the Government to commence negotiations with the European institutions, which is why this debate is important. It provides an opportunity for those informal negotiations that will lead, post November, to formal negotiations with the European institutions. Perhaps I may turn—
I am much obliged to the Minister. He says that this vote tonight is necessary so that negotiations can begin. Why is it that the House of Commons was not asked to endorse the Government’s view that the 35 measures were in the national interest, whereas in this House we have been asked to endorse that? Why is there that difference between the Motions that have been put to the two Houses?
I will give way to the noble Lord, but I want to make this point absolutely clear. The noble Lord, Lord Richard, is plucking at straws. Let us get to the substance of this. There is a Motion before the House this evening that gives Members of the House an opportunity to express an opinion on both the opt-out and the rejoining of 35 measures. That is quite clear and it was the purpose of tabling this Motion. It is up to noble Lords to decide how they react to it, but there is nothing devious or obscure in the way in which the Motion has been derived.
With great respect, I am not clutching at any straws at all. Having been drawn into a conversation with the noble Lord, I think that I am entitled to put this point to him. It is a question not of clutching at straws but of asking a very simple question of the Government. Why have they asked this House to endorse their proposals when they did not ask the House of Commons to endorse them? Why is there a difference between the Motions put to the two Houses?
I can give no other answer and I will give no other, because I have given the noble Lord an answer.
I should like to get to the substance of this debate. We can talk around it, but we should get to the substance. I was challenged by my noble friend Lord Maclennan and by the noble Lords, Lord Tomlinson and Lord Grenfell.
I am most grateful to the noble Lord for giving way. I want to get clarification on something that he said before he started the exchange with the noble Lord, Lord Richard. He said that the Motion before the House tonight, which endorses the Government’s list of 35 measures in the Command Paper, would be the basis on which the Government would start informal consultations with our partners. Can he confirm that that is true?
Exactly. There will be informal negotiations to start with because, until the reports from the sub-committee are produced in November, the Government do not intend to open up formal negotiations. The noble Lord is exactly right and I am grateful. I should have given way to him earlier. It was a very helpful intervention on his part.
I was going on to say that the noble Lord, Lord Maclennan, challenged my noble friend Lord McNally on the whole business of the referendum. The noble Lords, Lord Tomlinson and Lord Grenfell, and the noble Baroness, Lady Smith, repeated this. There is a very clear answer and I will read it. The European Union Act sets clear criteria for when a referendum would be necessary. These are set out in Section 6 of the Act. This decision is not one of the areas where a referendum is required. Changes to the Treaty on European Union, the TEU, or the Treaty on the Functioning of the European Union, the TFEU, or a decision made under Article 48(6) of the TEU potentially attract a referendum under the European Union Act 2011. The 2014 decision is not a treaty change, nor a decision under Article 48(6) of the TEU. Instead, it is something that flows from the existing treaty and, as such, it is not subject to a referendum. I hope that that categorical assurance reassures the House on this issue.
There have been some discussions about whether we are right to exercise the opt-out. The noble Lord, Lord Richard, raised doubts early on in the debate about whether this was a wise decision. My noble friend Lord Taverne questioned whether we were doing the right thing and a number of noble Lords have also done so. The Government are of the view that we should exercise the opt-out for three reasons: principle, policy and pragmatism. On principle, it is our view that the UK’s international relations in the field of police and criminal justice are a matter, first and foremost, for the Government. For example, the Government believe that, if necessary, we should have the option to amend our bilateral UK-US extradition and mutual legal assistance treaties as we and the US wish. However, currently any changes would need to be in conformity with the EU-US agreements.
In terms of policy, the UK has and will continue to have the ability to choose whether it should opt in to any new proposal in the field of justice and home affairs. It is therefore only right that we take the opportunity to consider on a case-by-case basis whether we wish to retain the pre-Lisbon measures and allow the CJEU to exercise jurisdiction over them. The key question that the Government have asked themselves in this regard is whether it is in the national interest to rejoin a particular measure.
Finally, we are being pragmatic. We are not going to be in a position to implement Prüm, for example, which requires member states to allow reciprocal searching of their databases for DNA profiles, vehicle registration and fingerprints, before December 2014. Implementation is likely to take years and require substantial funding. By choosing to remain bound by Prüm after 1 December 2014, we run the very serious risk of being infracted for failing to meet our obligations under the EU. The Home Secretary and Justice Secretary set all this out in a letter last Thursday. Others can disagree with it, but the case has been made and that is the Government’s position.
There is some concern, which has been stressed again by noble Lords, about why we are having this vote today. I think the nub of the question put to me by the noble Lord, Lord Richard, was, “Why do we need a vote today?”. We need, as I have said, to begin these informal discussions but we need also to allow some time for scrutiny of the measures and the decisions as they go along. The EU Committee has suggested in its report that the Government should have started negotiations at a much earlier stage. However, the Government would have been presumptive to have done so without allowing Parliament to have a say on the matter. The Commission DG for Justice, Françoise Le Bail, has said:
“But I guess the key issue is to have a decision by the British Government. There is nothing else we can do before that”.
That is why we have asked for this vote today. In effect, from this moment, we will be able to enter into those informal negotiations.
A lot of anxieties have been expressed, and the noble Baroness, Lady Smith, repeated the point about the risk of a gap between our opting out and our rejoining. Noble Lords will of course understand that there will be a transitional arrangement. The timetable is that the actual opt-out does not occur until 1 December 2014, so there is a period for negotiations, which we believe will include transitional arrangements. We do not see a gap as being a serious obstacle for us in presenting to our European colleagues a proper case for renegotiation in respect of those bodies that we want to opt in to. Indeed, all the discussions that we have had with colleagues in Europe have given us the feeling that we can be confident that they will be pleased that we have actually made a decision on this matter and that we will be in a positive position in respect of the 35 measures to which we will be opting in.
Can my noble friend give me one more assurance? Can he confirm that, once the British Government have concluded their negotiations and we know what the conditions will be for opting back in to, for example, the European arrest warrant, Parliament will then have an opportunity for a final say on whether or not it agrees with those opt-ins?
Yes, that is indeed provided for. After 31 May, not only will impact assessments be generated for each of the measures to which we are opting back in but there will be a second vote on the 2014 opt-ins. This is a journey which Parliament and Government have to undertake together. I understand the passions of noble Lords on this issue but I hope that we can establish, on the terms of the debate that we have had this evening, a proper dialogue so that we can actually discuss these issues and give those people who disagree with the Government a proper sense that they have an opportunity for dialogue with us.
The noble Lord has just said something a little startling. He assured the noble Lord, Lord Blackwell, that the second debate and vote will take place after 31 May—that is, after the date that we have to give a legal notice to the European Union that we are opting out. I do not quite see how a vote after that date can vary that decision in any way.
There will be a deadline of 31 May. The Government will make the decision but it will be up to Parliament to endorse it in a vote after 31 May. This is a matter where the Government and Parliament will be in constant dialogue. As I have said, there will be a debate in this House, I hope, in November. I hope that noble Lords will be furnished with arguments by the committee of this House that will enable us to discuss this issue properly at that time.
This has been a good debate. This Government are not frightened of criticism and are prepared to seek to answer it. The choice before us is whether we exercise the opt-out and rejoin measures, where it is in the national interest to do so, or we do nothing. I am firmly of the view that we should opt out, but it is most certainly in the national interest to seek to rejoin measures that help to combat cross-border crime and keep our country safe. I hope that the House will also endorse the measures in Command Paper 8671 and strengthen the Government’s negotiating hand. I know that the European Union Committee can further help the Government and this House by further scrutinising the measures that it feels the Government should rejoin. This can only enhance the debate. I am very pleased that the terms of today’s Motion have encouraged the noble Lord, Lord Hannay, not to press his amendment. I hope that I have also shown that the Government are prepared to listen to these concerns.
I am sorry; I am not going to give way. I have some important information for the House. The brief I had that said that the vote would be after 31 May was incorrect. It has now been corrected. The vote will be before 31 May, which I am sure reassures noble Lords. It certainly makes my life a little easier, if I may say so.
I hope that the noble Lord will forgive me. It is late and I am coming to the end of my remarks. There will be another vote before we formally apply to rejoin these measures. Today is not the end of the process but just a step along the road. I hope that noble Lords will support the position set out by the Government. It gives us a chance to be involved in a continuing discussion on this issue. I commend the Motion in the name of my noble friend to the House.