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EU: Eurojust (EUC Report)

Volume 749: debated on Monday 4 November 2013

Motion to Agree

Moved by

That this House agrees to the recommendation of the European Union Committee that Her Majesty’s Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, to take part in the adoption and application of the Proposal for a Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust) (document 12566/13) (4th Report, HL Paper 66).

My Lords, I move the Motion in my capacity as chair of the European Union Committee’s Sub-Committee E on Justice, Institutions and Consumer Protection, which prepared the report now before the House for endorsement. The Motion invites the House to agree with the committee’s recommendation that the Government should opt in to the negotiation of the proposed regulation reforming the European Union Agency for Criminal Justice Co-operation—the agency which is more commonly known as Eurojust. The proposal falls within the area of justice and home affairs which will apply to the United Kingdom only if the Government exercise their right under EU treaties to participate in its negotiation, adoption and implementation or, in other words, to opt in to this. The Government have to do this within three months of the proposal being presented to the Council, which in this case means before 21 November.

On the same day in July as the Commission brought forward the Eurojust regulation, it also published an accompanying proposal creating the European Public Prosecutor’s Office, the EPPO. The Government have already made clear in the coalition agreement their intention not to participate in the proposed EPPO and on Monday last week this House approved a reasoned opinion challenging the EPPO on subsidiarity grounds. The reasoned opinion was also prepared by the EU sub-committee that I chair.

Unfortunately, as the proposed Eurojust regulation was published just before the House rose for the Summer Recess, it was not possible to publish this report and schedule a debate in the House within the usual eight-week window that would have been afforded to the committee. However, there is fortunately sufficient time for a report from the EU sub-committee considering the opt-in and for this debate to be held in the House today before the Government’s deadline to decide expires.

The Government have already given a clue as to their intentions regarding the opt-in, in a letter dated 21 October from the Security Minister, James Brokenshire MP, a copy of which appears in the appendix to the report. In it, he says that:

“Pending the views of Parliament”,

the Government will not be opting in to the negotiations for the proposed regulation. For reasons that I will turn to in a moment, the Government have concluded that the regulation,

“would have significant implications for the UK’s systems of law”.

The letter also makes clear the Government’s intention to revisit their decision once an agreed text emerges from the negotiations.

I fear that this decision by the Government not to opt in to these negotiations from the outset could be construed by our fellow member states in the EU as representing a lack of commitment by the UK to a very important crime-fighting agency. The UK is one of the agency’s main users and, after the terrorist attacks in the US in September 2001, has played a key role in the agency. For example, for seven years of its 11-year history, the elected president of Eurojust has been the UK member. I note that the Minister says that the Government’s decision not to opt in has been taken pending Parliament’s view, but it seems that their intention is clear: the UK will not be opting in. In this context, it is difficult to foresee the position of president of Eurojust being bestowed on the current UK member. Although the committee acknowledges the validity of the Government’s concerns for the UK’s criminal justice system, the Government must also accept that the simple example of the Eurojust presidency illustrates that there is a price to be paid, perhaps in relation to our influence, when the UK chooses not to opt in to EU legislation.

Essentially, the regulation retains Eurojust’s core functions but includes new provisions reforming the agency’s governance and management structure. Notably, this includes Eurojust’s interaction with the proposed EPPO, the UK’s participation with which has been ruled out by the coalition agreement. The proposed regulation also includes provisions augmenting the existing powers of Eurojust’s members and new arrangements governing Eurojust’s accountability to the European Parliament and to national parliaments.

The Government have some concerns. In their Explanatory Memorandum, the Government praised the current legislation governing Eurojust and, in the context of the Government’s 2014 block opt-out decision—into which my committee has undertaken two recent inquiries, along with Sub-Committee F, chaired by the noble Lord, Lord Hannay of Chiswick—communicated their intention to opt back in to the current legislation. On the other hand, the Government also raised a number of concerns with the proposed regulation on Eurojust, including its potential ramifications for fundamental rights. However, in light of the Minister’s letter of 21 October, it now appears that there are two key concerns which have convinced the Government that it is not in the UK’s interests to opt in to this proposal. Both concerns are discussed in our report.

The first of those concerns relates to the aspects of the proposal which change Eurojust’s governance and management structure, including in respect of Eurojust’s interaction with the proposed EPPO. Once the Commission followed the treaty requirement that the EPPO be created out of Eurojust, it was inevitable, given the Government’s clear policy of non-participation, that this issue was always going to be difficult for the Government. However, the report argues that the issue is not enough to rule out the Government’s participation in the negotiations about the Eurojust regulation. Indeed, the committee believes it strengthens the arguments in favour of opting in.

The second of the Government’s key concerns relates to the requirement in the proposed regulation that the powers conferred on members of Eurojust by their member states are mandatory rather than discretionary, as is the case under the current legislation. The Minister says in his letter that mandatory powers of the type envisaged by the proposal,

“would cut across the separation of powers between police and prosecutors in England, Wales and Northern Ireland”.

The Minister also warns of the potential ramifications of mandatory powers for the role of the Lord Advocate in Scotland. I note the Government’s concern in this regard and take the opportunity to ask the Minister about the extent of the Government’s consultation with the devolved Administrations before deciding whether or not to opt in to this proposal, particularly in light of the clear evidence given to my committee by the Lord Advocate during the recent Protocol 36 inquiry of the benefits of Eurojust to the Scottish Government and his concern that the UK should not leave the agency. That may well be a message for both Front Benches.

The report itself suggests that the Government opt in to the Eurojust regulation, drawing on much of the evidence given to the two recent inquires on Protocol 36 and Sub-Committee E’s own recent inquiry focusing on fraud in the EU’s budget. The overwhelming weight of the evidence taken during these inquiries, which is reproduced in the report, highlights the importance of Eurojust’s work to member states. The report argues that the Government’s participation in these negotiations is all the more important given, first, the provisions in this proposal introducing significant interweaving of Eurojust with the proposed EPPO and, secondly, the Government’s clear stance of non-participation with the EPPO. It is my committee’s view that the UK Government will not be alone in their opposition to the EPPO—indeed the treaty anticipates this eventuality by including specific enhanced co-operation provisions for agreement. Furthermore, last week saw sufficient reasoned opinions issued by national parliaments, including one from this House and one from the other place, to force the Commission to review the proposed EPPO.

Our report therefore suggests that the UK ought to be a full participant at the table for the important discussions addressing the position of those states that wish to work together in Eurojust but do not want to participate in the proposed EPPO. These negotiations will shape Eurojust’s future and, although the committee acknowledges the validity of the Government’s concerns, the committee would not want to see the Government pursue a course of action which would diminish our influence on these important negotiations.

Finally, although the Government have decided, under the Protocol 36 decision, to opt back into the current legislation governing Eurojust, my committee cannot foresee a situation whereby the UK would be allowed to remain a full participating member of Eurojust under legislation superseded by this proposal. In this context, we fear that there is a clear danger that in deciding to opt out of these negotiations the Government could be taking the first step on the road to the UK’s non-participation in Eurojust, which we would all come to regret. My committee would strongly caution against such a course of action.

My Lords, I am a member of Sub-Committee E and support the proposal ably moved by our chairman, the noble Baroness, Lady Corston. We return tonight to the issue of European co-operation in judicial and criminal investigative matters. The topic is of course a veritable Rubik’s cube of interwoven advantages and disadvantages, and trying to establish the pattern that will best suit this country is very difficult, especially for a non-lawyer such as myself.

As the noble Baroness has pointed out, the pattern of the Rubik’s cube has changed in the past week with the decision of this House and the other place to issue a reasoned opinion on the grounds of subsidiarity against participation in the European Public Prosecutor’s Office. I spoke in the debate in favour of that decision on theoretical, legal and operational grounds. We heard in that debate from the noble Lord, Lord Rowlands, who introduced the subject, of growing concern among other states about the proposal. As I understand it, from what the noble Baroness has said and from what the noble Lord, Lord Rowlands, told us in our committee meeting earlier this week, since then concerns have been found to be even more widespread and substantial than was originally thought—indeed, so substantial that it appears that the EPPO proposal in its present form is now effectively dead in the water. The Minister might like to confirm whether this is the case and the Government so assess it when he comes to wind up.

If so, this removes one of the Government’s major objections to the Eurojust proposal—that it implicitly provides a stalking horse for the development of the EPPO, the interweaving of the organisation which we describe in paragraph 40 of our report. We say:

“As we have noted, the proposed Eurojust Regulation includes significant provisions which interweave the two institutions both corporately and operationally. Viewed in the context of the Government's policy of non-participation, this might point towards the UK electing not to participate in the negotiation of the Eurojust Regulation”

The next question really is whether the Government have some other principled objection to Eurojust in any form. It would appear that they cannot and do not. First, because this country has been part of the Eurojust set up ab initio, as the noble Baroness pointed out, and secondly, because although the Eurojust regulations fell within the subjects covered by the opt-out afforded to us by the treaty of Lisbon, having exercised that opt-out, the Government have already announced that they propose to opt back in to those parts that cover Eurojust.

As to the operational need for a co-ordinating mechanism such as Eurojust, one only has to reflect on the increasingly global nature of crime and, in particular, what one might call the new crimes such as cybercrime which flit from country to country, indeed from continent to continent, and require a very highly co-ordinated international response.

I have had the honour to serve on one or more of the EU Sub-Committees of your Lordships’ House for several years. An abiding feature of inquiries focused on activities to combat EU cross-border crime has been the value ascribed to what they call joint investigation teams or JITs which are, of course, established under and by Eurojust. It would be a shame for this country not to be in a position to aid their further development by not participating in the negotiations on these future regulations.

That leaves two final issues which could underpin the Government’s apparent plan not to opt in to this proposal. First, there is the proposed change to the structure and governance of Eurojust. I find it hard to believe that this country should not opt in to a body on the sole grounds that an executive board should replace a management board with a director. It seems to me to be arguing about a distinction without a difference. Secondly, there is the different nature of our legal system compared with those of most of our fellow EU members—in short, the adversarial as opposed to the investigative approach. I recognise this challenge and I see why the Government have drawn our attention to it in their explanatory memorandum. However, since the UK has been involved in Eurojust for some 10 or so years, these do not appear to have been insuperable problems in the past and I see no reason why they should be so in the future.

I am forced to conclude that Eurojust is an organisation which has proved its value in the past, evidenced by the Government’s decision to opt in again to the existing regulations. The major threat implicit in the regulation we are discussing tonight was the introduction of the EPPO, but that is not now going to happen. In my view the Government ought to take advantage of this changed mood among our fellow EU members to opt in and to ensure that this regulation is fashioned to the advantage of this country. Otherwise, having avoided participating in the negotiations, we may find ourselves having to accept a directive that has not been fashioned in the manner most advantageous to this country. It is also hard to understand how we are going to be able to opt in to old Eurojust—that is, the existing regulations—and not participate in the new Eurojust that will result from the proposals now under consideration.

When John Maynard Keynes was once asked about why he changed his mind, he famously said when circumstances change I change my mind, what do you do? Circumstances here have changed dramatically with the EPPO and since the Government reached their preliminary conclusion, I hope that my noble friend will persuade Mr James Brokenshire that this was a mistaken approach and we ought now to participate and ensure that these regulations are taken forward to the best advantage of this country.

My Lords, I support the noble Baroness, Lady Corston. I have the privilege to serve on the European Union Sub-Committee on Justice, Institutions and Consumer Protection, which is chaired excellently by the noble Baroness.

The Government have made it quite clear that the current legislation on Eurojust represents a,

“positive model of cross-border co-operation”.

The Government have stated that it is their intention to seek to opt back in to the existing legislation on Eurojust following the decision to exercise the 2014 opt-out of 130 EU police and criminal justice measures adopted before the treaty of Lisbon entered into force in 2009.

When the sub-committees were considering the general issue of the opt-out, Eurojust was one of the measures on which there was a high level of consensus in favour. Eurojust provides judicial co-ordination meetings, judicial co-operation agreements with third countries, office facilities, the facilitation of mutual legal assistance agreements, the acceleration and execution of European arrest warrants and the funding of joint investigation teams with the accompanying translation costs. As the Government have recognised, all of these are of considerable value to the United Kingdom. In these circumstances it is very clear why the Government wish to opt back in to the existing arrangements.

The DPP, in evidence, to the committee said that Eurojust costs the UK just £360,000 per annum and costs would be much greater were these arrangements to be the subject of individual bilateral liaison between magistrates in each country. Those of us who were involved in the process of criminal investigation prior to 2002 are aware of how very much longer all these things took prior to the establishment of Eurojust. We know that sometimes things took so long and became so complex that criminals were able to avoid justice. We must also bear it in mind that even if criminals are ultimately apprehended, the ancient maxim that justice delayed is justice denied still applies.

The committee in its 23rd report of the 2003-04 Session, stated that Eurojust was,

“a model of how to make progress in an area where the differences between national jurisdictions are so great that it would be unrealistic to aim for harmonisation. It is also an example of the sort of effective practical co-operation that an EU agency can provide”.

The Government’s concerns have been articulated very clearly by the noble Baroness, Lady Corston. They are threefold: ramifications for fundamental rights; concerns in relation to the governance and management structures of Eurojust; and the nature of the extended powers to be given to national members. The decision is imminent and the sub-committee to which I belong has recommended that we should opt in. The real problem with Eurojust is well recognised. It is the extent to which the new proposal interacts the European Public Prosecutors Office proposal with Eurojust. I understand the reservations in relation to the EPPO. They are shared by a significant number of other states. As we say in our report, the UK will not be alone in opposing the EPPO.

The UK needs to be at the table to participate in these fundamentally important negotiations in the Council. We need to ensure that our voice is heard in these debates, particularly in support of those other members who wish to support less radical change to Eurojust, as the UK does. These will be complex and important arrangements. Ultimately it is likely that the current Eurojust arrangements will change. If we are not part of the negotiations, we will not be able to influence the outcome as effectively as if we were at the table. It is not impossible, as we say in the report, that if the UK fails to take its place at these negotiations, they will proceed. Eurojust will change, and the UK will find itself unable to opt back in to the existing arrangements, leaving us at a significant disadvantage in the fight against crime. The existing Eurojust will disappear, and we will not have brought to bear our very considerable influence on the creation of the new Eurojust. This can only leave the UK at a disadvantage.

As we contemplate the fight against crime and terrorism across borders, we have good cause to ensure that co-operative arrangements are as comprehensive as possible, while still retaining and maintaining our national independence. In Ireland last night, a massive bomb was intercepted by the Irish police. It was destined for the north. It would have caused carnage. We have increasing levels of evidence of more militant views in many communities, with the creation of many murals glorifying what they called the armed struggle. We have to consider the concerns we know exist in Northern Ireland about the possible effects of the current opt-out proposals on the protection of security in these islands. We have also to consider the ramifications of the interdependence between organised crime and terrorism in the context of this proposal. For example, we have two individuals who are subject to TPIMs currently on the run. They are subject to TPIMs because they were regarded by a judge as a threat to national security.

We cannot revert to the times when we were dependent on bilateral arrangements and individual processes took months, if not years. If we opt out of Eurojust under the protocol 36 arrangements and find ourselves unable to opt back in because things have moved on, that may well threaten the coherence of the whole package which the United Kingdom will present to the Commission when it seeks to opt back in to the various measures. European arrest warrants, the other 34 measures and, indeed, the other measures which have been recommended for inclusion in the package are interdependent. The Government stated in their response to the 13th report:

“Europol currently provides support in over 280 operations involving UK law enforcement”.

If we opt in, we can negotiate so as to secure the removal of the powers to direct national law enforcement agencies to initiate investigations or share data. We can influence other states to achieve an outcome acceptable to the UK. We will definitely do so more effectively if we are sitting at the table than if we are on the sidelines watching, seeking ultimately to rejoin a Eurojust on terms for which we have not argued and which ultimately we may even be unable to accept.

We put our whole protocol 36 situation at risk if we do not opt in. Eurojust represents great value to us. We must ensure that we have a voice in the ongoing debates, and I ask the Minister to consider again the decision the Government have made.

My Lords, if only I could improve upon the powerful and compelling case that the noble Baronesses, Lady O’Loan and Lady Corston, and the noble Lord, Lord Hodgson, have made on our committee’s report. This time last week, we had a consensus on our report on the EPPO. As I understand it, we have a consensus of a rather different kind tonight: a consensus of two Front Benches opposing our report. I find that all the more puzzling given the events of the past week or two.

As the noble Lord, Lord Hodgson, said, since we wrote this report, the context has changed. We have seen a very significant and “important”—in inverted commas—rebellion across a number of European Parliaments to the draft proposal on the EPPO. It was our case that if the Government joined in the debate and discussion on Eurojust, they would find enough allies to change and alter that report effectively. Surely the evidence of the past week or two has been that there are such allies and that if one engaged in an active and proactive way on this measure, one would find enough allies to change or transform the report itself. Our case has been strengthened by the events of the past week or two, and therefore I am puzzled if both Front Benches for some reason oppose the conclusions of our report.

We all accept the value of Eurojust. The Government accept the value of Eurojust. They want to opt back in to Eurojust under the opt-in proposals. We all support that opt-in to the system. I certainly share the Government’s concerns about the existing draft proposal. Almost all those concerns are about the interrelationship between it and the proposed draft for the EPPO. If those fall—if, in fact, the Commission is going to have to withdraw or revise its proposal—surely there will be a consequential fallout in the draft Eurojust proposal. Will the Minister bring us up to date on what has happened since last Monday, when there were enough reasoned opinions across Europe to mean that the Commission will have to review it? What has the Commission intimated? It has suggested that it is going to do so, and it accepts and understands the voices of concern. If it does that, does it not also have to review and almost withdraw this proposal because they are totally interlinked? A portion of the Eurojust draft is related to the proposed public prosecutor’s office. Will the Minister tell us whether, if the Commission has to review the EPPO, it will also probably have to undertake some kind of review of this draft?

In this case, we have a compelling case for joining in the negotiation because we now have a good clear view that we could affect those negotiations in a very positive way. As other members of the committee have said, one of the things that swung me in favour of our report—and I was sceptical at the beginning because I understood and appreciated the Government’s concerns—was that we could influence this because we sensed there would be a lot of other supporters. The other reason why I supported it was that I looked down the road and thought that a bizarre situation could happen in which the Government opt in to the existing measure and then find that this measure has been revised and it belongs to an existing measure which down the road may well be of a different kind, and they have opted out of that. I think that would cause a very puzzling and bizarre situation in the relationship between the United Kingdom and the Eurojust system.

There is one thing on which we surely have consensus: we are in favour of Eurojust and we are in favour of the United Kingdom’s participation in it. Therefore, I beg the Minister to tell us what has happened since last Monday and whether the impact of what happened in the past week or two means that the Government should rethink their position on this issue and should at least keep an open mind on the question of opting in, negotiating and influencing what I think is a very important organisation.

My Lords, the matter before the House concerns only Eurojust, but it is clear that Eurojust and the EPPO have a very close nexus one to another. There are two ways of looking at that nexus: one is positive and the other is negative. It seems to me that the Government, and the Opposition for that matter—one is in the luxurious position on the Cross Benches of being able to say, “A mild plague on both your houses”—are approaching the matter from an utterly negative point of view. The Government have asked the question: is Eurojust in any way tainted by association with the EPPO? They answered yes; ergo, it must be rejected.

I argue that there is a forceful and utterly convincing case to the contrary. I am proud to say that I, too, am a member of Sub-Committee E. We have heard a great deal of evidence over the months with regard to European fraud. The official figure for fraud was €440 million or something of that nature. I do not think that anybody applied their minds to it properly, as the evidence was very different, appearing to range somewhere between €3 billion and €5 billion, possibly even in excess of that latter figure. Nobody was charged with overarching responsibility. That is where the case for the EPPO comes in. There is a saying in Welsh: “Everybody’s concern is nobody’s responsibility”. That is the situation here. Unless there is a body that is charged with the particular commission of looking at European fraud in a serious way, as has never happened before, I think that the whole system will be jeopardised to its very roots.

If one accepts that there should be an EPPO—and the noble Lord, Lord Hodgson, has pointed out that the objections are sere thin, casuistic and have no merit whatever—it seems to be the case that the Eurojust situation very much fits into that picture. It seems to me that the whole situation is tainted by the prejudices that have become so prevalent in the last few months in relation to Third Pillar matters. We have heard abundant evidence to show that it does not matter a row of beans what we do about 90 to 95 of those 130 measures, as most of them have virtually no effect upon our situation. One or two are of peripheral significance. Yet somehow or other the Government have managed to taint the whole situation by pretending that this is a massive battle for British sovereignty. In doing so, they are jeopardising something like 30 to 35 matters that are of crucial significance in so many different fields, and doing so cynically in order to pretend that we are somehow winning a great victory in relation to the 95 matters that never mattered at all.

I therefore very respectfully ask the Minister, whom I believe to be one of the most reasonable Ministers in government, to consider yet again whether he may be wrong in this particular matter.

My Lords, perhaps it is appropriate that someone who was not a member of this sub-committee should say a word or two about this issue. I come to this against the background of having been chairman of Sub-Committee E more than a decade ago, when Eurojust was just appearing on the horizon.

It is fair to say that initially there was a certain amount of suspicion as to whether it would be right for the United Kingdom to have any part to play at all, for reasons that are easy to understand: we have our own system for the administration of justice, our own prosecutors and prosecution system, which is so very different from that in the countries on the continent. However, I have kept an eye on this from a distance, and everything that has happened since then has supported the points that have just been made: Eurojust is beneficial and indeed essential to the battle against cross-border crime that we all must face up to. The only way to deal effectively with cross-border crime is cross-border co-ordination. The report says that pan-European co-ordination is required. Indeed, it is global co-ordination that is required.

From my position, based in Scotland, I would attach considerable importance to the evidence that was given by the Lord Advocate. I know that the Lord Advocate and his team have been closely involved in matters that lie at the heart of the Eurojust project. I will not mention names, but various issues have arisen where they have been hands-on in dealing with cross-border matters and the co-operation that is available through Eurojust has been absolutely crucial to the way in which they have been able to carry out their work. I do not think that anyone in the justice system in this country would have any doubt that Eurojust is beneficial and something that we should continue to support and be part of.

That brings us to two questions. Given that in Article 41 we see participation with the EPPO being proposed and all the things that might follow from that, does that make a difference? If it does, what do we do? Of course it makes a difference, for reasons that everyone understands. The answer to the second question—what do we do about it?—is, I would suggest, made very clear near the end of paragraph 41 of the report: it concerns the importance of being at the table. This is all about negotiation. This is not going to the final decision-taking stage. As I remember from Sub-Committee E, the essential point is to take part in the negotiation process as documents that come from Brussels are talked through. It would be an enormous mistake for us to be absent from the table.

This is a short report to which respectfully I pay great tribute. It is short but the issue is extremely important. We should be very grateful to the noble Baroness and all members of her sub-committee for the clarity and brevity with which they put their points. I support entirely all that the previous speakers have said and I hope very much that the Government will pay very close attention to the points made so far.

As a member of the sub-committee that produced this report, I support what has been said tonight, the report itself and the words of the noble Baroness, Lady Corston.

A lot of the arguments have already been made so I will not repeat them. However, I will say three things that I believe are important. Everyone knows that Eurojust aims to,

“improve the coordination of investigations and prosecutions among the competent judicial authorities of the European Union Member States”.

That is its purpose. It is inevitable, in a competitive single market, that just as capital, labour and goods will move between borders, criminals recognise no borders either. They will use whatever weaknesses there are in domestic legal and police systems to ply their trade and to seek protection. It makes no sense, as the Government have recognised, that we should pull out of Europol, Eurojust or the European arrest warrant. They all complement each other. The Government have agreed this, and last week we also agreed that the further proposal for a linked European prosecutor was a step too far, and the coalition is opposed to that.

However, now we have proposals for a new regulation for Eurojust which will look at its structure, its new provisions for governance and management structure, new provisions for its accountability to the European and national Parliaments—including the fact that the Eurojust president will have to appear before Parliament—the setting up of an executive board, and the removal of individual member states’ discretion.

The Government have concerns about all of those and have pointed them out. They are concerned about the ramifications for fundamental rights, the change to Eurojust’s existing governance and management and the whole nature of the extended powers given to national members. However, as we have heard, it makes no sense at all and it is silly that we are not prepared to get involved in the negotiation of these new proposals, and will mean that in Europe we will be seen as petulant and awkward.

Surely the great danger to us is that if we opt out of these negotiations things will emerge that we are not happy with. We know that there are many countries in Europe that agree with us on the whole issue of whether or not to have a European prosecutor and on getting further accountability of Eurojust. It is too important a body to us for us to ignore the process of reforming it. Finally, on this question we should send in the openers to bat, not rely on the tail end to pick up the pieces.

My Lords, my point is a general one. I apologise to your Lordships if it is trite—it probably is—but to me it is blindingly obvious that you cannot play the ball if you have taken your bat home. Every noble Lord will have had experiences of negotiation in some context, if only the domestic, and we know that if you choose to walk away you have to pick your moment. You have to be clear what the deal breaker is and know what your own compromise would be. However, until then you have to remain part of the story, not least because you risk losing respect if you are not prepared to get stuck in and stay stuck in to the project. You certainly risk losing influence. My noble friend’s phrase that you are “looked on as petulant” was absolutely spot on. You risk not being regarded as a serious player if and when negotiations resume. Indeed, you risk being thought of as having disqualified yourself from further negotiations in a serious way if you have distanced yourself.

My Lords, I thank my noble friend Lady Corston for her introduction to the report from her committee and for the clarity of the committee’s case made in its report for the recommendation that the UK opt in to the negotiations on the proposed Eurojust regulation.

As has already been said, the European Union Agency for Criminal Justice Co-operation—Eurojust—was established just over 10 years ago. Provisions in the 2009 Lisbon treaty agreed by the member states included provisions that required the EU’s institutions to pass legislation in the form of regulations to determine Eurojust’s structure, operation, field of action and tasks. The proposed Eurojust regulation seeks to fulfil the member states’ aims.

Eurojust is involved in major crimes such as drug trafficking, human trafficking, terrorism and financial crimes, which cross borders and require co-operation between different jurisdictions if they are to be successfully investigated and prosecuted. Since 2003 there have been just under 1,500 requests from EU member states for co-operation with Britain through Eurojust. The objective of Eurojust is to support member states in conducting investigations, and we are very supportive of the value of the work that it undertakes.

As has already been said, the proposed Eurojust regulation will apply to the United Kingdom only if the Government indicate a decision to opt in by 21 November. The Government’s position in the House of Commons when it was debated there, I think last week, was that we should not opt in to the new Eurojust proposals at the outset of negotiations but should conduct a thorough review of the final agreed text to inform active consideration of opting in to the Eurojust regulation post-adoption, in consultation with Parliament. If the Government decide to opt in to the negotiation of the proposed Eurojust regulation, which seeks to replace two existing Council decisions, the legislation currently governing Eurojust will no longer fall within the scope of the Government’s 2014 opt-out decision, under which the Government are seeking to rejoin the current Eurojust arrangements as part of their 2014 opt-out decision.

In the House of Commons debate last week, the Minister referred to government concerns about the proposed connections between Eurojust and the proposed and strongly opposed European Public Prosecutor’s Office. The Minister also expressed government concern about the proposed new Eurojust regulation creating mandatory powers for national members. These powers, said the Minister, would allow a requirement for coercive measures at a national level with the ability to insist that national authorities take investigative measures in some circumstances, which could cut across the division of responsibilities and separation of powers between police and prosecutors in England, Wales and Northern Ireland, and the sole ultimate responsibility of the Lord Advocate in Scotland for determining investigative action in Scotland.

Unusually for this Government in regard to a European Union agency, they publicly rather value Eurojust. Their stance indicates they would prefer to stay in rather than find themselves outside because they do not like the look of the new regulation once it has been adopted following the deliberations of all those member states participating in the negotiations. In this regard it would at least clarify the Government’s position if the Minister could indicate whether, if the European Public Prosecutor’s Office proposal does not proceed, and with it the references to the link up with Eurojust, the Government will still not opt in to the proposed Eurojust regulation unless other significant changes are made to the proposed regulation. In other words, is it the connection with the EPPO proposal that is the showstopper for the Government or are there other aspects of the proposed Eurojust regulation that the Government also regard as a showstopper as far as opting in to the regulation is concerned?

The Government should be able to answer that question in general terms since they are not disclosing their negotiating position on what significant changes would be required as, under their stance in the House of Commons, they do not intend to opt in to negotiations anyway on the proposed Eurojust regulation. What the question does—if the Minister will give a straight answer—is indicate whether the Government’s relative enthusiasm for Eurojust is greater than their dislike of the proposed new regulation as it stands minus any interweave between Eurojust and the EPPO, or whether the Government’s dislike of the proposed new Eurojust regulations minus the interaction with the European Public Prosecutor’s Office is still such that if there is no significant change in the regulation in line with their position, they are prepared to accept no longer being a full participating member of Eurojust.

The view of your Lordships’ European Union Committee is that were it not for the provisions governing Eurojust’s interaction with the EPPO, the argument in favour of the UK opting into the negotiations would be clear and the committee would have no hesitation in recommending that the UK opt in. The committee’s view is that the Government’s key issues with the text could be dealt with during the proposal’s negotiation, but they recognise that the Eurojust proposal has not been brought forward in a vacuum but is closely associated with the Government’s policy towards the EPPO proposal. However, as has already been said, there will be changes in relation to the EPPO proposals since those proposals have been given what I think is known as a yellow card as a result of decisions by a not inconsiderable number of member states’ national Parliaments, which means that the Commission is now required to review its position.

The European Union Committee considers that the non-participation in the EPPO by other member states in addition to the UK, will inevitably mean that the contentious aspects of the proposal dealing with the reform of Eurojust will be subject to negotiations in the Council, and that the United Kingdom ought not to miss out on such negotiations. The committee takes the view that if the UK Government decide not to opt in to this regulation they will not be at the table for the important discussions addressing the position of those states wishing to co-operate within Eurojust but who choose not to participate in the EPPO. The committee says that it could not advocate such a course of action.

Referring to the Government’s position that they value the work of Eurojust, the committee says that it cannot foresee a situation whereby in practical terms the UK would be allowed to remain a full participating member of Eurojust operating under defunct or superseded legislation that they have decided to opt back in to, while the other participating member states co-operate under the new proposal once it is agreed. The European Union Committee has therefore recommended that the UK opt in to the negotiations on the proposed Eurojust regulations. Its report points out that the Director of Public Prosecutions said that the UK’s involvement in Eurojust provides many benefits and in his view represents good value for money, and that the Lord Advocate said that he would be concerned if the UK left Eurojust.

In his letter to the chairman of the European Union Committee, the Minister in the other place said that the Government would take an active part in the negotiations to protect the national interest, and also on the EPPO. The Government, he said, would also continue to challenge the Commission’s evidence base and justification for bringing forward the Eurojust proposals at this time. In addition, the Minister said that the Government would oppose any changes that would reduce the influence of member state representatives over the functioning of Eurojust, and seek confirmation that the opinions of Eurojust acting as a college are non-binding on member states.

If the Government do not intend to opt in to the negotiations on the proposed Eurojust regulations, with whom will these approaches or discussions referred to in the letter that I have just mentioned be conducted? Is it the Government’s view that, in reality, they expect to achieve as much, or as little, through approaches and discussions through channels outside the structure of the negotiations on the Eurojust regulations as they would have done had they opted in to the negotiations? I hope that the Minister will address those questions when he responds to the debate.

The Minister’s reference in his letter to the chairman of the EU Committee that the Government would “continue” to challenge the Commission’s justification for bringing forward the Eurojust proposals at this time indicates that the Government have already been in discussions of some sort over the proposed Eurojust regulations. It would be helpful if the Minister could say what points the Government have been making about the proposed regulations, to whom and through what channels, over what period of time, and what changes, if any, they have secured that have already been reflected in the proposed Eurojust regulations as they now stand. We did not oppose the Government’s position on the Eurojust regulations when it was debated in the House of Commons last week, and it is not our intention to do so tonight.

My Lords, I thank the noble Baroness, Lady Corston, and the European Union Committee, many of whose members have spoken in this debate, for bringing forward this Motion and for their work on this report. As noble Lords have said, we were here a week ago to debate the issue of the European Public Prosecutor’s Office when the House concluded that it should issue a reasoned opinion against that proposal as it breached the principle of subsidiarity. Today, we have turned to the related matter of the opt-in decision triggered by the European Commission’s parallel proposal for a Eurojust regulation. We have had a full debate and I have listened to it with great interest.

The Government’s view is that the UK should not opt in to the draft regulation on Eurojust at this time and we should conduct a thorough review of the final agreed text to inform active consideration of opting in to it, post adoption, in consultation with Parliament. I am pleased to say that a Motion to that effect was agreed in the other place last week. It has been very good to have the support of the noble Lord, Lord Rosser, expressing the Opposition’s view that this presented the right approach in the interests of Parliament and of Government.

The Government have said clearly that we value the current Eurojust arrangements, which is why we are seeking to rejoin them as part of the 2014 opt-out decision. I can only agree with the noble and learned Lord, Lord Hope of Craighead, and all other noble Lords who have pointed out the merits of the current Eurojust arrangements. Moreover, prior to the publication of the new Eurojust proposal, we said consistently that there was no need to reform Eurojust at this time; indeed, the Security Minister in the other place, James Brokenshire, made that case clearly at the 10th anniversary of Eurojust last year.

Current legislation is still undergoing a peer evaluation, which will not be complete until next year, and the Commission has not put forward a convincing case as to why the new proposal is needed. However, regrettably, it has come forward with a new Eurojust proposal that contains a number of substantial concerns. In particular, as the European Union Committee’s report elegantly describes, the Eurojust proposal is interwoven with the EPPO proposal. The reforms proposed to Eurojust would see deep connections made to the EPPO with operational, management and administrative links between the two bodies. At this time we cannot be certain either about the shape of the EPPO proposal itself—not least given the subsidiarity yellow card that has been issued, as we know, as a result of our debate and debates in other parliaments—or how the relationship between the EPPO and Eurojust might ultimately be defined.

I say to the noble Lord, Lord Elystan-Morgan, that our concerns articulated in this House last week have not gone away. To update the noble Lord, Lord Rowlands, who asked where we were now as a result of last Monday, the number of votes from national parliaments on the EPPO means that the Commission must now review its proposal. Officials speaking on behalf of Commissioner Reding, however, have interpreted this as being the majority of national parliaments not opposing the proposal. It would be a huge mistake no longer to consider the EPPO presenting a risk for the new Eurojust proposal. That is our view of the situation at the present time. The Government therefore believe that it would be extremely and unnecessarily risky to bind ourselves to the European Public Prosecutor’s Office through our participation in the new Eurojust proposal at the start of negotiations. This would be a needless risk when we can review our place in Eurojust upon its adoption.

The new Eurojust measure also proposes to create new mandatory powers for Eurojust national members—powers which would enable them to require coercive measures at a national level. The current Eurojust measure works well and it does not force member states to give their national members such extensive powers. The new proposal unnecessarily removes this discretion. These proposals would cut across the division of responsibilities and separation of powers between police and prosecutors in England, Wales and Northern Ireland. It is quite clear that these proposals would conflict with the role of the Lord Advocate in Scotland, who has been at the apex of the Scottish criminal justice system since at least the time of the first recorded holder of that office, Sir John Ross of Montgreenan, in 1483. Before this debate I had no idea that the office so ably held by my noble and learned friend Lord Wallace of Tankerness had such ancient roots.

The evidence that the Lord Advocate gave to the committee was on the existing Eurojust measure about which there is no dispute among us—it is a valuable measure—not the new proposal. That evidence is therefore not relevant: the new proposal might actually undermine the role of the Lord Advocate. It was following consultation with the Scottish Government that we came to our view. On consultation, we have consulted the devolved Administrations in Scotland and Northern Ireland. They have told us that they understand our reasoning and they would not seek to demur from our proposed approach. The concern in relation to the Lord Advocate’s role follows consultation with the Scottish Government. Our clear view is that we should not opt in to the new Eurojust proposal at the start of negotiations because the risks it presents are unacceptably high for our criminal justice system arrangements.

I hope that I can also allay some of the concerns expressed in the European Union Committee’s report that we might “miss out” on these negotiations. Indeed, in introducing the debate, the noble Baroness, Lady Corston, made such remarks and they have been reinforced by the speeches of the noble Baroness, Lady O’Loan and my noble friends Lord Hodgson of Astley Abbotts, Lord Stoneham of Droxford and Lady Hamwee. All have talked in terms of our missing out or not being involved in the negotiations. I assure noble Lords that where we do not opt in at the start of negotiations we will nevertheless be actively involved. Not only will we be present in the negotiating room at all levels, we will be able to intervene as and when we wish. If we do not opt in to this measure now, we will nevertheless be at the negotiating table energetically representing our interests, and we will be able actively to consider opting in post-adoption based on the final text and the further views of Parliament. I hope that reassures noble Lords that this may be an opt-out or a non-opt-in to the revised proposal but it is not an opting-out of our responsibility to negotiate and make a success of Eurojust, which it has been for all participating countries in the past. I assure noble Lords that we will vigorously represent our views on both the Eurojust and EPPO measures.

Moreover, as your Lordships may be aware, Ireland has also said that it will not opt in to the Eurojust proposal at the start and, of course, Denmark cannot participate in post-Lisbon justice and home affairs measures, so we are not isolated or alone in our position. I reassure the noble Lord, Lord Rosser, regarding the other issues we are concerned about. The coalition agreement is clear that the Government will consider the impact of any of these measures on the UK criminal justice system when considering an opt-in to any measure. We have set out our concerns on that point very clearly and it is an area that we want improved.

I conclude by making clear our commitment to the current Eurojust arrangements—

I am extremely grateful to the noble Lord and I am sure that I speak for a lot of noble Lords when I say that I am reassured by the energetic negotiations that will take place around the edge of the formal negotiations, and I hope that they are successful. However, the question we are left with is what happens if the final negotiations are not to our satisfaction. What happens to our membership of Eurojust in its present form? It is hard to believe that our fellow members will allow us to remain a member of Eurojust on the old terms and not accept the new terms which we will have no part—at least, no direct part—in negotiating.

My noble friend and I have been involved in negotiations and I do not think that we ever went into them contemplating that approach to the issues. We went in there to achieve our objectives and that is exactly what the Government will be doing. We are not alone in taking this stance; we have the support of others. Eurojust has been an asset and we want to make sure that the new proposals complement the work that has already been achieved by it and do not get in its way.

I make no apology for not going into detail about our negotiating position but reinforce the fact that we are not in some sort of annexe. We are not down the corridor to be occasionally brought in to be involved in these negotiations. We are at the table negotiating on behalf of our interests and that is what our colleagues in Europe expect us to do. I do not share the view of my noble friend Lady Hamwee that we are not fully committed to negotiations. We are committed to negotiations. I have always believed that if you go into negotiations you do the best service to your colleagues and the issue under consideration by stating your position clearly and arguing for it. That is exactly what this Government will be doing.

I was in the middle of my peroration when my noble friend interrupted me. Our intention is to negotiate to protect the Eurojust arrangements, but our view currently is that as the new proposal stands it presents too high a risk to our criminal justice system to opt in at this stage. I hope, therefore, that noble Lords will understand why the Government cannot support the Motion.

My Lords, I thank those noble Lords who have contributed to this debate this evening. It was particularly gratifying to have the support of five members of Sub-Committee E and that of an illustrious past chair of Sub-Committee E, the noble and learned Lord, Lord Hope of Craighead, who was entirely right when he pointed out how important it is for the Government to be at the table at the outset of these negotiations. This report does not tie the Government’s hands. There would be no difficulty if the Motion was agreed to. The Minister listened to the debate and can take the views expressed and the report into account. The House usually supports the committees that it appoints to perform its scrutiny functions. This issue was very carefully considered by Sub-Committee E and was endorsed by the full EU Select Committee so ably chaired by the noble Lord, Lord Boswell, who I am pleased to say is in his place this evening.

However, I am mindful of the old adage that when you are in a hole you should stop digging, and since neither Front Bench supports the Motion and it is not going to be agreed to, I am willing to withdraw it.

Motion withdrawn.

House adjourned at 8.47 pm.