Motion to Take Note
My Lords, 2014 is a critical year for Europe. Within weeks, we will have a new European Parliament and, within months, a new EU Commission. There can be no doubt that the face of Europe is changing, just as it has changed dramatically over the past 25 years.
One of the changes we want to see is the EU becoming more flexible. The Dutch express this as: “Europe where necessary, national where possible”. This is our approach when it comes to justice and home affairs. In some cases, there are clear benefits from working at a European level. In others, it makes sense to operate at national level. Noble Lords will be aware that, under Protocol 21 to the treaties, the UK enjoys the right to choose whether to opt in to new justice and home affairs measures brought forward by the European Commission.
The previous Government made a commitment to table a report every year on the operation of the opt-in. Because of this Government’s strong commitment to parliamentary scrutiny, we have maintained that pledge. We have published reports every year since 2011 on the matter and we have also included in those reports figures on the so-called Schengen opt-out under Protocol 19 to the treaties. This provision allows the UK to decide whether to opt out of Schengen-building measures. The latest report was published on 23 January this year. Part of the Government’s scrutiny commitment is that the report will be made available for debate—which is precisely what noble Lords are invited to do today.
Noble Lords will have observed that there are two Motions on the Order Paper. This Motion relates to the UK’s 2014 decision to opt out of all police and criminal justice measures agreed before the entry into force of the Lisbon treaty. This matter will be familiar to many noble Lords, for it has been subject to much debate in this House and the other place.
On 23 January this year, my noble friend Lord Taylor, who will respond to this debate, closed what was a most impressive debate in this House on the matter. Of course, the matter was debated at length last year when this House endorsed the Government’s decision to exercise the opt-out and seek to rejoin the 35 measures set out in Command Paper 8671.
The Government have also committed to returning to Parliament for a further vote before formally seeking to rejoin any measures. That vote will be held well ahead of 1 December this year. Before that, it is appropriate that Parliament is given every opportunity to scrutinise this important issue. That is why today we are providing noble Lords with additional time to look at the matter, as the Government recently did in the other place, and there will be additional time to debate the matter later this year.
I turn first to the annual opt-in report. The bare facts are these: in the period covered by the report— 1 December 2012 to 30 November 2013—the UK opted in to 13 proposals under the JHA protocol, and decided not to opt in to a further eight. Decisions on whether to opt in to a proposal are taken on a case-by-case basis, but some basic criteria are applied. For each measure, they are: what will be the impact on our security, on our civil liberties, on the integrity of our criminal justice system or on the ability for us to control our borders? How might our system of common law, shared by only a small, select group of other member states, be affected? Over and above everything else, what is in our national interest?
The report shows that last year, for example, we opted in to a Council decision relating to an agreement between the EU and Canada on the transfer of passenger name record data. Such data, known as PNR data, have real value in the tracking down of people suspected of the most serious crimes, and are already used by the UK in our border systems programme. Indeed, the provisions outlined in the Council decision are already in place, so here was a practical agreement, in the public interest, that the UK could support and be part of.
Other examples included proposals to improve insolvency proceedings, and a welcome and important clarification to the rules governing jurisdiction—as set out in the Brussels 1 regulation—which will make way for the creation of the unified patent court in January next year.
Noble Lords will also be aware that in August last year the Commission published a proposal for a European Public Prosecutor’s Office. The coalition agreement made it clear that the Government would not take part in the European Public Prosecutor’s Office, so we did not opt in. A centralised European prosecutor with harmonised powers to initiate investigations and order investigative measures is incompatible with the division of responsibilities in the UK between law enforcement and prosecutors and the role of the independent judiciary. The idea of a single legal area is an unwelcome move towards harmonisation. That is not to say that we do not wish to co-operate at all with our European partners in ensuring the prosecution of crime and the detection of offenders.
In addition, we do not believe that the EPPO is an appropriate or proportionate response to tackling fraud against the EU’s budget. A body working at EU level would, at best, duplicate the efforts of dedicated organisations working at a national level; at worst, it could hamper efforts to prevent fraud at national level. Reflecting that view, this House and the House of Commons shared the view that this was not something that was best tackled at EU level. Both Houses issued reasoned opinions that the proposal breached the subsidiarity principle. Simply put, that is the principle that, in areas of shared competence between the EU and member states where action can be taken at member-state level, it should be so taken. EU-level action should be reserved for those areas where it can genuinely add value.
I offer the European Public Prosecutor’s Office as an example—perhaps the most high-profile one—of where the Government have taken the view that it is not in the national interest to opt in to a measure. Others are set out in the report, but I know that many noble Lords will wish to bring their considerable expertise to bear on these issues so I will not detain the House any longer on the annual opt-in report.
I shall return briefly to the 2014 decision. I first express my thanks to the EU Committee of this House for its ongoing work in scrutinising this matter. It is an issue in which I know a number of noble Lords have taken a keen interest, and the Government are grateful to them for their work in this area and for the considerable expertise that is brought to bear on the consideration of relevant issues. We are grateful not least to the noble Lords, Lord Hannay and Lord Boswell, and the noble Baroness, Lady Corston, for their ongoing analysis of an extremely complex issue. Their committees have produced two extremely thorough and valuable reports on this subject and I want to express my thanks on behalf of the Government for their chairmanship.
I turn to the progress on negotiations to seek to rejoin measures. I pause at this stage gratefully to acknowledge that the noble Lord, Lord Hannay, was good enough to provide an advance indication of the remarks that he proposes to make in this debate. I know that one area that he—and, I am sure, other Members of the House—will raise is the possibility, to put it crudely, of the Government dropping the ball during the negotiations. I will endeavour to say what I can about that in my following remarks.
The process for rejoining measures depends on whether they are classified as Schengen or non-Schengen measures. On the Schengen side, a Friends of the Presidency working group has been established in Brussels to discuss all the issues for member states, linked to the end of the five-year transitional period set out in Article 10 of Protocol 36. This working group will also allow us to discuss the Schengen measures which we are seeking to rejoin and agree the decision which will allow us to do so formally.
The House will doubtless be anxious for me to address the question of what other member states have said about our package of measures. They have been broadly supportive of the UK’s position. There are of course many technical matters that are subject to discussion. These include whether measures are now obsolete or whether, and to what extent, new measures will replace old ones. That is precisely what this working group has been set up to do. At the appropriate time, when a conclusion has been reached, we will update Parliament on these matters—but, as I am sure the House will understand, it would not be appropriate to do so now when there are still discussions to be had.
Discussions with the Commission on the non-Schengen side are also ongoing. As we are sure noble Lords will also appreciate, this is a particularly complex matter and a great many process and technical matters have to be discussed. We must be mindful that this is a negotiation and, as such, we do not wish in any way to prejudice our position in these negotiations. To do so would not be in anyone’s interest. However, I can say that these discussions have been very constructive and our aim remains to reach an in-principle deal well ahead of 1 December, and return to Parliament for a further vote before formally seeking to rejoin measures. We want to ensure that there are no operational gaps, and our European partners appreciate this. That is perhaps reflected in the fact that we exercised the opt-out in July 2013—although the deadline was May of this year—to give us enough time to undertake these negotiations.
The Government have been clear throughout this process that Parliament will be given a vote on the final list of measures that the Government apply to rejoin, and I am happy to repeat that commitment today. Scrutiny can be an iterative and long-running process, especially on a matter such as this. That is why we will debate the matter at length again later in the year and why we have committed to producing a full impact assessment on the measures we seek to rejoin in good time, before a second vote. It is important that Parliament is given the opportunity to scrutinise the matter fully. I look forward to hearing the contributions of noble Lords when we return to Parliament later in the year.
Perhaps I may return to the main business of the day, the annual opt-in report. I commend this report to the House and look forward hearing your Lordships’ views on its content.
The Question is that this Motion be agreed to.
My Lords, I did wish to intervene in the Minister’s speech. I hope that is in order; I was on my feet before the Question was put. The noble Lord very helpfully gave an undertaking about the provision of an impact assessment for the measures that the Government are seeking to rejoin. However, he will be aware that in discussions with Ministers, the committees of this House have made it clear on a number of occasions that it is equally important that at that point there should also be an impact assessment, which has so far not been provided, on the measures that the Government are not seeking to rejoin. I wonder whether the Minister could give us some undertaking on that aspect. It really is rather important that the impact assessments provided should not be partial and limited to the measures that the Government wish to rejoin, because there will of course be impacts from the measures that the Government do not wish to rejoin. The House will need to be aware of those before it debates and votes on the final package to rejoin.
My Lords, the Question has already been put so I very much regret that, in my view at least, the noble Lord, Lord Hannay, is somewhat out of order. I therefore suggest that my noble friends on the Front Bench do not answer him now but do so at the end of the debate.
Perhaps I may ask the noble Lord to resume his seat. I think the point that my noble friend Lord Skelmersdale made was valid. There will be an opportunity for my noble friend Lord Taylor to respond at the end of the debate to all the questions that have been raised during it.
I am afraid that I do not accept this. I still wish to put a very short question to the Minister. He mentioned that the European Public Prosecutor had not been agreed by the Government. Does he not agree that it shows clearly the direction in which the European Union wishes to go, to the eventual detriment of our entire criminal justice system?
My Lords, with the leave of the House, both noble Lords who have asked questions are speaking in this debate and will have the opportunity to ask their questions in their speeches. I do not see why they could not have been patient and waited until it was their turn to speak. That would have been far more in order.
My Lords, I am grateful to the noble Lord, Lord Faulks, for tabling these two Motions for debate today. They give the House a timely and useful opportunity to debate these important issues and explore the actions which the Government have taken and their reasoning in coming to the decisions that they have, and for us to seek assurances from them that the actions they are taking are not damaging to the law enforcement agencies and the important work that they are doing to keep the citizens of this country safe, which is the first duty of any Government.
Using a provision negotiated by the previous Labour Government when signing the Lisbon treaty in 2007, the Government have decided to opt out of just over 130 justice and home affairs measures covered by the treaty. The opt-out takes effect on 1 December this year, and the Government have indicated that they want to opt back in to a number of measures before we get to that date. We on these Benches are not against the principle of opt-outs—it was the Labour Government who negotiated this provision in the treaty—but your Lordships’ House will want further assurances that the Government have a clear plan and that that they are not playing fast and loose with our national security and the fight against crime.
It looks to me as if we could be going through a process that will deliver very little benefit for a lot of work and expense and, in the end, not much to show for it. I see that in the debate in the other place on 7 April the Conservative Member for North East Somerset, Mr Jacob Rees-Mogg, told the House that we have opted out of 98 things that do not matter and that some of the 35 things that we are opting back in to matter enormously. He would call that a repatriation of powers but that is a terminological exactitude. We on these Benches believe in retaining our co-operation with Europe on policing and criminal justice. The Government should have secured guarantees of agreed opt-ins on these important crime-fighting measures before exercising the opt-out—that would have been a sensible precautionary measure.
We must not forget that there are thousands of organised crime groups in the EU involved in drugs, human trafficking, online child exploitation and theft. Cross-border crime is a reality and we need 21st-century tools to meet this challenge. I had the privilege of visiting the police unit in London that deals with card fraud and it was clear that: the criminals use every modern technique to steal people’s money; it is cross-border, it does not stop at Dover; to catch the perpetrators who are stealing money from our citizens, costing the banks and other financial institutions millions of pounds and bringing misery to people, you have to have all the tools in the box to fight these criminals; and to achieve that, working across borders and co-operating with our partners is essential.
It would be helpful if the noble Lord, Lord Taylor, gave his reaction to the comments by the British head of Europol, Mr Rob Wainwright, who expressed his concern that the new arrangements would not be in force in time, and that without sufficient transitional arrangements there would be a gap in the UK’s capability to carry out its work against international organised crime and terrorism. That must not be allowed to happen. There are also suggestions that we need to get our re-opting-in list agreed by June 2014 in order to complete the process by the December deadline, and that we are struggling to achieve that. Will the Minister also comment on that in his reply?
I am pleased that the Government have decided to opt in to the European arrest warrant. The UK has deported more than 4,000 people under this scheme to face justice, and more than 600 have been returned to the UK to face justice here. There are numerous examples of such cases, including that of David Heiss, who murdered British student Matthew Pyke in September 2008. He was arrested in Germany a month after the offence and brought back to the UK a month later. Before the European arrest warrant, Germany did not surrender its nationals; in fact, there was a constitutional bar against doing so. Without the European arrest warrant, it is possible that this murderer would not have faced justice in a British court.
We on these Benches have no issue with the Government ensuring that these matters are proportionate —no one wants to see trivial matters clogging up the courts, wasting time and costing money needlessly. However, I do take issue with losing an important tool in the box that helps in our fight against crime. Will the Minister give the House an explicit assurance that the European arrest warrant will be in use on 1 December 2014? If he cannot, I think that it will represent a serious failure on the part of the Government.
I am pleased that the Government have indicated that they are opting back in to five of the six mutual recognition agreements. It is right that in areas where financial penalties of more than €70 are imposed, for things such as road traffic offences, people should be pursued to pay the fines. I think that it will have an effect on the individuals who commit an offence if they realise that they will be forced to pay up.
The previous convictions framework decision requires courts to take account of a defendant’s previous convictions in any other member state to the same extent as previous national convictions are taken into account. It is welcome that the Government are opting back in to this measure as well. It is important for the courts to have all the tools available in the fight against crime.
As for the prisoner transfer framework decision, which provides for the transfer of foreign nationals who are EU nationals to serve their sentence in their home country provided that they have more than six months to serve, it is good that the Government are also opting back in to this measure. However, I am not sure that we have had either the speed or the numbers of prisoners transferred back to their home country that many of us would like to see. The cost of keeping someone in prison is about £40,000 a year. I recall that when he came into office the Prime Minister made much of what he was going to do about foreign criminals in UK jails. Four years later, I am not convinced that we have seen the follow-through that the rhetoric implied. Perhaps the Minister can shed some light on that in his response.
We welcome the Government’s decision to opt back in to the judgments in absentia framework decision and the European supervision order. The first contains important protections for defendants and the second provides that non-custodial pre-trial supervision may happen on a voluntary basis in the defendant’s home member state.
The probation measures framework decision is the one measure that the Government are not opting back in to. It would be helpful if the Minister could go into some detail about why that is the case. The Government have indicated that it might be a possibility at a later date.
Most of the areas where the Government have decided not to opt back in are of a minor or trivial nature. In some cases, the Government intend to follow the provision and claim that we have sufficient powers on the statue book to deal adequately with any matters that may arise. Will the Minister focus some of his time in this debate on the issues of currency counterfeiting, fraud and the counterfeiting of non-cash means of payment? What will the Government do to ensure that we remain ahead of the game? Criminals who operate in this area can be highly skilled and ingenious in the methods they employ to steal from people and organisations. We on these Benches welcome the decision to rejoin the data protection framework decision and the data protection secretariat. These measures protect and balance the rights of data subjects with the need to protect the public.
In conclusion, we are, as I said, not against the principle of opt-outs, but we do have concerns about how this set of opt-outs has been handled. Concerns have been expressed about the adequacy of planning for the opt-ins and, in particular, about the provision of transitional measures in the event that agreements are not reached in time.
The Prime Minister, the Home Secretary and the Justice Secretary have made much of the actions being taken. However, what do those actions amount to when they are put under the microscope? This is an expensive and lengthy exercise that does not really deliver very much. One is left wondering what the real motivation behind all this is. Perhaps the Minister can comment on the difficulties that his own party is facing with an increasingly dwindling membership who are more and more anti-European. Was this really just an attempt to placate them? If it was, it has been found out. There has been no repatriation of power. Instead, the UK is opting in to a variety of measures because that is the right thing to do. A number of the noble Lords who will speak in the debate today have a wealth of experience. I am looking forward to their contributions.
My Lords, my contribution to this debate will be more generic. Perhaps I ought to warn the noble Lord, Lord Hannay, that I will probably be quite brief and he will have plenty of time to put his questions.
This has come about through the Lisbon treaty and the changes that took place there. I, for one, really welcome what the Lisbon treaty did in two areas of this subject. First, we got rid of the pillar system of the European Union, which someone like me who understands Europe to a reasonable degree found totally complicated. We started to make Europe more understandable to the political elite in individual member states; I doubt that it has got down to citizens yet, but at least it has simplified that process. Secondly, it meant that, by getting rid of the justice and home affairs pillars, those areas came into normal legislative procedure, which meant that we have at least an increased level of transparency of legislation and discussion in the European Parliament—the Council of Ministers was not exactly great at transparency. Clearly there are arguments in the opposite direction about national vetoes, but that move in transparency and public understanding of how the EU works, and simplification rather than complication, was extremely good.
Of course, we are already generally opted out of Schengen, although we opt in to certain of its provisions. It seems slightly ironic that while our tourist and business sectors are getting het up about the Chinese being able to visit us, we have independently gone down the road of effectively starting to recognise Schengen visas, with some additional help. That is positive and important for the UK economy, but there are some moves in the opposite direction. Of course, we are not part of the eurozone, either. Other states opt out of various areas as well. The Irish Republic has opted out of some of these areas or has the ability to opt in. Denmark has opted out of the common defence and security policy.
My general point is that when we talk about British membership of the European Union, there is a great barrier to our taking the leading role that we normally do in most areas, particularly in justice and home affairs, when we seem semi-detached from a lot of what the European Union is doing. I therefore generally regret that we go through these procedures of opting out and opting in, marginalising ourselves to some degree—although all British Governments have managed to keep their profile high and be persuasive within European Councils. However, this whole area of opting in and out is not good for the general national interest. I regret that as we start, in certain parts of the House at least, to talk about amending treaties and perhaps becoming an even more marginal member of the European Union, when we should be taking and keeping our rightful place as a leader of change and in the work with our European partners to be a leader within the European Union.
I particularly want to make a couple of points on how important justice and home affairs are. Certain parts of the other place are quite vociferously against the European arrest warrant. I agree absolutely with the noble Lord, Lord Kennedy, that we need to make sure that there is no gap there. Clearly, that would be a charter for criminals and more than a slap in the face for victims. It is one of the most important areas as regards citizens’ involvement and benefit from the European Union and being assured that victims of crime are able to bring the perpetrators of those crimes to justice across borders within the European Union. That is absolutely fundamental to community interest.
All the way through the Government have said, “We will decide each of these issues on national interest”, and I never see that questioned. Clearly, none of us can disagree with that, but I will be very interested to hear from the Minister how we define national interest in those areas. Does it refer to the national interest of our criminals, our victims, or more relevantly, old people or young people, the business community, consumers, rural or urban areas? The term “national interest” can be used very easily as a way of explaining why we do or do not do things as regards opt-ins, opt-outs and other areas of EU policy. That route is too easy and is too much of a cliché in the way it is used. We have a very diverse community in the United Kingdom, and what is good for one part is not necessarily good for another. I will be interested to hear the Minister’s reflections on that area.
However, the most important thing is that these discussions are concluded quickly and effectively. We are where we are, but the United Kingdom needs to remain a committed, leading and important member and a great benefit to the European Union and the broader European community as a result of our commitment to making Europe work.
My Lords, I regret to have triggered a minor kerfuffle of a procedural kind. I merely observe that I was on my feet before the Motion was moved and I expressed no criticism whatever of either the Minister or the noble Lord on the Woolsack for not having seen me as I speak from a rather dark and distant corner of your Lordships’ House. I do not accept that I expressed a lack of patience as the Minister quite explicitly referred to impact assessments only for the measures we are opting back in to and not those that we are not opting back in to. That was a precise point—he will not speak again in this debate—which I thought it was reasonable to put to him. I have so much patience that I did not intervene further in the kerfuffle and I am very happy to wait for the noble Lord, Lord Taylor, to answer that question as I shall be putting it again now. But I do not think it was either out of order or a matter of lack of patience.
The debate today, which was introduced very carefully, clearly and helpfully by the Minister is, as he explained, a double-header. It deals, first, with the 2014 block opt-out, including the Government’s decision in the national interest to seek to rejoin 35 of the measures so covered, and secondly, with the Government’s report on these routine individual opt-in and opt-out decisions in the 2012-13 period. Both parts of the debate fall within the scope of two sub-committees of the EU Committee—that chaired by the noble Baroness, Lady Corston, and that which I have the honour to chair. I will begin with some remarks on the block opt-out, which is, as has been recognised by all speakers up to now, far and away the more significant of the two topics we are dealing with.
I will not weary the House with a lengthy recapitulation of our committees’ views on the block opt-out; all that was comprehensively debated last July and again on 23 January of this year. Suffice it to say that we remain unconvinced of the Government’s case for triggering the block opt-out in the first place; that we support the Government’s bid to rejoin the 35 measures they identified in Command Paper 8671; and that we hope that they will negotiate with the Commission with flexibility on the issue of coherence and will consider rejoining a modest additional number of measures identified in our report of last October.
The count down to the deadline of 1 December when, in the absence of any positive decisions over rejoining, the UK will have excluded itself from all those pre-Lisbon measures, is now well under way. To judge by the Minister’s report, there has not been a huge amount of progress registered on the bid to rejoin 35 of those measures. Although I respect his feeling that he cannot be more precise at this stage, I thought that the report that he gave the House was helpful, within those limits. Can he confirm that the Government’s target and wish is to reach political agreement with the Commission and the Council by the time of the European Council meeting in June and then to put to Parliament a package for a second vote before the Summer Recess, if that were to prove possible? If so, can he assure the House that adequate advance notice will be given and that the necessary impact assessments will be provided ahead of that vote, both on the impact of the measures we will be rejoining and those we will not? That is the point I made in my earlier intervention.
Can the Minister also say what contingency plans the Government have for the eventuality of full agreement not having been reached with the Commission and the other member states by the 1 December deadline and, in particular, what transitional arrangements, such as are provided for in the treaty, could be envisaged? These things cannot be improvised at the last moment, and particularly tricky issues could arise involving individuals in respect of the European arrest warrant. That point was made very cogently by the noble Lord, Lord Kennedy. Does the Minister agree that the worst possible outcome would be if a legal vacuum were to be created with respect to the 35 measures which the Government consider, and which this House endorsed, as being in our national interest to rejoin?
On the Government’s report on the 2012-13 individual opt-ins and opt-outs, the situation is far from satisfactory. For one thing, the Government have so far declined to opt in to a number of measures which our committee concluded it was in the UK’s interest to opt in to from the outset. In particular, we regret the decision not to opt in at the outset to the negotiations on the new Europol proposals. Can the Minister confirm that the Government’s objective remains a post-adoption opt-in to that measure? As the noble Lord, Lord Teverson, said, the practice of negotiating from the outside and rejoining as a post-adoption opt-in decision seems to be spreading. Our concern in the committee that I chair is that this approach reduces our negotiating leverage and risks final outcomes which would not be in this country’s interest. In that respect, can the Minister say whether, now that the proceeds of crime directive, which your Lordships’ House would have wished to opt in to from the outset but the Government decided not to do so, has been agreed through co-decision and is on the statute book, it is the Government’s intention to go for a post-adoption opt-in to that measure? It would surely be quite aberrant if the UK was to exclude itself from a piece of legislation for which we have been pressing for many years and which is essential if we are to pursue effectively those criminals who have managed to transfer the proceeds of their crimes to other member states?
We regret, too, that the Government chose not to opt in to the readmission agreements with Cape Verde and Armenia. We believe the case for doing so, and thus for demonstrating a less than semi-detached attitude to those agreements, is unconvincing. Can the Minister confirm that the Government intend to opt in to the recently concluded readmission agreement with Turkey, on which we are awaiting notification within the normal time limits of that measure?
Worrying evidence has come to light that the Government are not adept, to put it mildly, at applying the simplest arithmetical aspects of the opt-in/opt-out system. Recently, I understand, it came to light that the Government had failed to opt in before the deadline had expired to a JHA provision of the association agreement with Kosovo, so we apparently are not party to that agreement, even though we were among its leading protagonists. What is being done to remedy that? Also, quite recently, the Government’s decision to opt in to the member state initiative concerning the move of the seat of CEPOL from Bramshill in this country to Budapest was taken only on the last possible day available, and Parliament was notified of the opt-in only the day after the last day had elapsed. I suggest that that rather drove a coach and horses though the Ashton/Lidington commitments in respect of that piece of legislation.
In that instance, our committee agreed with the substance of the Government’s decision to opt in but the point I am making concerns parliamentary procedure and the way that solemn commitments have been entered in to and are not being applied very correctly. The last time we debated one of these annual reports on 3 July 2013, also in the wake of an unfortunate procedural failure in applying those commitments, the noble Lord, Lord Taylor, who is replying to this debate, said that it would not happen again. Well, it has done. Can the Minister say what is being done to apply these procedures in a more rigorous and timely fashion?
I am sorry to be rather critical, but it is not acceptable for the Government to fail, either by omission or commission, to stick to commitments entered in to as part of the process of ratifying the Lisbon treaty. If this debate has done nothing else, it will have demonstrated the need for these annual reports, for which I am grateful to the Government for supplying, and the need, too, for the House to debate them. I am grateful for the opportunity to do that today.
My Lords, I am grateful for the opportunity to participate briefly in the debate in my capacity as the chairman of the European Union Select Committee of this House. It is a privilege for me to follow the noble Lord, Lord Hannay of Chiswick, and thank him for his continuing expertise and the input he has made to the work of the European Union Select Committee, specifically in his chairing of its home affairs sub-committee. However, that expression of thanks and praise is tinged with a degree of sadness as the time has come for him to step down from both committees. We shall miss him hugely, as will the House. This work necessitates not only massive and in-depth expertise across the whole range of matters European but a readiness to be tireless and, if I may say so, appropriately tiresome, in holding the Government to account in what they do, and is an example to us all of the kind of work that this House does very well.
Also on the positive side, I commend the Minister—the noble Lord, Lord Faulks—for delivering on the Government’s commitment to debate on request an annual report on Protocols 19 and 21. It is entirely sensible that we should roll this in with the separate debate on the continuing saga of the Protocol 36 negotiations. I feel that this is a little bit like a piece of classical music with two themes inextricably intertwined in this debate. I fear that my remarks will tend to flit from one to t’other.
I also find myself in an interesting and rather European position, as it were, as the centre of the troika between the previous speaker, the noble Lord, Lord Hannay, and the noble Baroness, Lady Corston, who will speak after me, as they chair the two relevant sub-committees of our European Union Select Committee, and I find myself in the middle. I would not for a moment claim that I have or wish to replicate their expertise because they express remarkably intense and effective scrutiny. One has offered and one will, I am sure, offer the technical assessments of their respective committees. They will highlight, for example, not just the historical record of the Protocol 36 saga, as I have called it, but the difficulties with post-adoption negotiations—for example, in relation to Europol and Eurojust, the EPPO and other matters that may arise down the track.
If we look at what happens in Europe, it is interesting and appropriate to record—the Minister has acknowledged this—that Her Majesty’s Government consistently opt into a majority of new proposals roughly in the proportion of 2:1, as working rule. It is fair to assume that neither myself in a personal capacity nor my committee generally would dissent from participation in those proposals. However one defines—if one can find a working definition to meet the wishes of the noble Lord, Lord Teverson—what is or is not the national interest, we are at least pleased that the Government are proceeding on that basis.
We will continue to assess any new proposals and policy matters that arise in the area of security, freedom and justice on their own merits and in relation to the national interest. We can hardly ask the Government to do otherwise. We would ask them to commit themselves to continuing to take into account the views of our committee wherever possible. It happens—it is an unexpressed factor in this debate—that we have developed over the course of the past 12 months, in the light of the Protocol 36 issue, a habit of consultation with Ministers and the troika, if I may call it that for shorthand, in relation to the handling of these issues. We are getting a better understanding but, frankly, as the noble Lord, Lord Hannay, revealed, the old Adam comes out from time to time and we cannot say that the work has been concluded yet, because things go wrong.
In that light, looking at the historical record, I have no wish to rake over the coals but I should like the two Ministers to consider saying a little more on the record about why the Government did not consult thoroughly and properly with the European Union Committee of this House, as had been agreed in relation to Protocol 36 issues, on the decision on the block opt-out. We had, in effect, a last-minute presentation of a fait accompli, which was not the right way to do this business.
As the noble Lord, Lord Hannay, has explained to the House, there will be continuing doubts in my committee as to the precise range of measures to be opted back in to. However, if we take the 35 measures in which the Government have indicated an interest, we can at least say that it is broadly the view of my colleagues that those measures are in the national interest. As we are actually doing them, it is sensible that we continue to do them and, as a number of noble Lords have said, particularly in relation to criminal justice, do them without any discontinuity as we reach the deadline.
It is fair to report to the House that there is a continuing contradiction—or I could call it a difference of emphasis—in the Government’s position on some of these issues. On the one hand, they express a continuing reluctance, as it were on principle, to consider as being appropriate our accession to the jurisdiction of the European Court of Justice on particular issues—their bias is against it. At the same time, on the majority of measures for very good reasons, including the national interest, the Government opt into justice and home affairs policies related to it. That, of course, immediately represents acceptance of the court’s jurisdiction in relation to those matters.
As regards future negotiations, Ministers are well aware, perhaps painfully aware, that a number of ongoing and very technical dossiers are to be negotiated, with a view to opting in, following adoption of the measures. The Minister, the noble Lord, Lord Taylor of Holbeach, may wish to respond later a little more on the Government’s thoughts on how successful the negotiations are likely to be. It would useful if he could inform us.
In relation to the block opt-out, nobody here is asking for a detailed account of any negotiation or indeed of the negotiating position, because that would be an entirely unreasonable position for us to take, including the disclosure of the stance of other members of the Council. However, I put it to the House that there must be some middle-way solution between complete transparency of action and—what we are sometimes faced with—either a last-minute announcement or the emphatic silence that greets us when an update on progress is requested by members of the committee.
That is a challenge for the House, for Ministers and for us as a committee. However, if some reasonable information can be shared—the noble Lord, Lord Faulks, who has already spoken to us has indicated some of it—and the Government can level with Members of this House and of the other place and with the general public at large, that may be positive for the process because it may encourage a measure of participation in, understanding of and interest in the matters being negotiated. Having said that, as has already been indicated, those matters are, frankly, desperately technical. Even getting them understood around Parliament would be a start but it would not be a finish. However, the more that can be done, the better.
We as a committee are not going to seek a running commentary on negotiations. The Minister, the noble Lord, Lord Taylor of Holbeach, wrote to us in January and we have allowed a certain franchise before we have come back to him. We do not want a running commentary but it would be helpful to have information as and when it is available and appropriate to let us share it.
In concluding my remarks, I once again endorse the need for a sensible dialogue to take place as a matter of routine between government and the European Scrutiny Committee. I often say—and I am anxious that we should not compromise the position—that we are scrutineers, not the Executive: we do not join in the Government’s decisions. However, the habit of collaboration and co-operation is to be encouraged and, if it is sensibly and sensitively handled, it will be of mutual benefit.
My Lords, the noble Lord, Lord Hannay, has, in his normal comprehensive and concise fashion, already addressed all relevant matters arising out of the work of our two sub-committees relating to the 2014 block opt-out decision. He is right: the block opt-out was comprehensively debated by this House in July last year and January this year, and I do not wish to detain your Lordships any longer on that matter.
However, I want to take this opportunity to reiterate that the Justice, Institutions and Consumer Protection Sub-Committee of the European Union Committee, which I chair, remains unconvinced by the Government’s argument for triggering the block opt-out. I also wish to endorse the comments of the noble Lord, Lord Hannay, that we support the Government in their bid to rejoin the 35 measures that they identified in Command Paper 8671. We also hope that the Government will stay true to their promise to negotiate with the Commission on the issue of coherence in good faith and with flexibility.
On the subject of coherence, my committee recently considered a Commission report that looked at the state of implementation by the member states of three key justice and home affairs framework decisions, which introduce mutual recognition into aspects of pre-trial and post-sentence detention. Our two Protocol 36 reports addressed all three framework decisions. The Commission’s report also argues that, alongside the European arrest warrant, all three framework decisions constitute a coherent package of legislation. The Government do not agree. I hope that this example does not indicate how difficult these negotiations will prove. However, we await with anticipation the Government’s response to our letter dated 6 May.
I turn now to the Government’s report detailing the individual opt-ins for 2012-13. Most of the legislative proposals scrutinised by Sub-Committee E are subject to the UK’s opt-in protocol. There is not the time or, I suspect, the will for me to mention each and every opt-in decision that we have considered this year. Rather, I shall focus on a small number of high-profile or significant proposals that raise specific issues that I wish to share with the House today.
As to my committee’s scrutiny of the opt-in, I put on record that we remain committed to considering the merits of individual opt-ins as part of the scrutiny work that we undertake on behalf of the House. To that end, during the year my sub-committee has engaged the Government in a line of correspondence, seeking to shed some light on the wider ramifications of their approach to these matters. In particular, we have endeavoured to ascertain what impact government opt-in decisions have on the UK’s influence and position in the subsequent negotiations in the Council. The catalyst for our correspondence with the Government was the debate on 4 November last of our report on the opt-in to the Eurojust regulation. I will return to the detail of that specific opt-in in a moment.
My correspondence with the Government on the wider ramifications of the UK’s opt-in has moved between three government departments—the Foreign and Commonwealth Office, the Home Office and the Ministry of Justice. I see the Minister nodding his head. I am told that our most recent letter on this matter, dated 6 February this year, is currently with the Ministry of Justice. We initially expected a reply by 21 February. An extension was granted by sub-committee officials but not to this date and we have not yet received a response. Is the Minister able to offer the House an indication of when we can expect a response? If not, can he promise to pursue the matter with the Ministry of Justice?
I turn now to those individual matters of particular interest highlighted by the Government’s report that fell to my sub-committee and merit specific attention in today’s debate. The first concerns the directive on the protection of the euro and other currencies against counterfeiting. While in the end we agreed with the Government’s decision not to opt in to these negotiations at the outset, this was an occasion when the Government’s Explanatory Memorandum did not address the opt-in at all. The Government have committed to supporting parliamentary scrutiny of opt-in decisions, and as part of their commitment they have promised to provide information on the factors affecting the opt-in decision where the Government are in a position to do so, although they did not do so on this occasion. If the sub-committees of the European Union Committee are to be able to fulfil effectively the role entrusted to them by the House, at the least we would expect the Explanatory Memorandum to any prospective legislation subject to the opt-in to address: first, the policy implications of the proposal; secondly, a preliminary assessment of the prospects of negotiating away the concerns identified; and thirdly, some indication as to whether the relevant UK authorities will be hampered by the UK’s non-participation. This did not happen in this case and we expect it to happen in the future.
The next legislative proposals of interest concern the interrelated regulations reforming Eurojust and creating the European Public Prosecutor’s Office, or EPPO. Both these proposals were brought forward together in July last year and both are subject to the UK’s opt-in protocol. However, as the Minister acknowledged in his opening remarks, the coalition agreement ruled out the UK’s participation in EPPO—a position all but enshrined by the European Union Act 2011—so the question of the UK opting in to EPPO did not even arise. The window within which the sub-committees are afforded time to consider individual opt-in decisions is small and on this occasion it was complicated by the Summer Recess. Nevertheless, against a very challenging timetable my sub-committee produced two reports into these matters.
The first report, on EPPO, recommended that the House should issue a reasoned opinion challenging the proposal by way of subsidiarity—a recommendation that I am pleased to say was endorsed by the House on 28 October last. The second report dealt with the application of the opt-in to the Eurojust proposal, and we urged the Government to opt into the regulation. It was published on the same day as the House debated the EPPO report. While the Eurojust report acknowledged the validity of the Government’s concerns with the proposal, we urged the Government to opt into the negotiations from the outset because, in our view, opting in represented the most effective way for the UK to continue its important membership of Eurojust while securing a text that best served the UK’s interests.
Unfortunately, at the subsequent debate on 4 November, despite clear support from all sides of the House, I was forced to withdraw the Motion approving the report in the face of opposition from both Front Benches. Nevertheless, my committee remains of the view that our report advocated the right approach to the opt-in in this case; and we fear that, in deciding not to opt into the regulation reforming Eurojust, the Government have taken the first step towards the door marked exit. Will the Minister tell the House how the negotiations on the Eurojust proposal are progressing and whether they are progressing to the UK’s advantage?
I also wish to address my comments in relation to the impact of opt-outs. I spoke to the predecessors of both Ministers on the Front Bench some time ago about the fact that there were impact assessments of the opt-ins but no impact of the effect on the United Kingdom of the measures that we were opting out from.
As I said, there is not time to go into the detailed discussions between the sub-committee that I chair and the Government on the merits or otherwise of each individual application of the opt-in. While my comments during this debate appear to focus on the negative aspects of my sub-committee’s relationship with the Government when we scrutinise the opt-in, I must add that, in the vast majority of the decisions of relevance to the opt-in, the Government and the Justice, Institutions and Consumer Protection Sub-Committee are in agreement.
My Lords, it is a great pleasure to follow the chairman of Sub-Committee E, of which I am a member, and thank her for her work and leadership of that committee. I very much agree with the individual points that she made in the latter part of her remarks.
It is also appropriate to echo the comments of the noble Lord, Lord Boswell, as chairman of the European Union Committee, and express our thanks to the noble Lord, Lord Hannay, as chairman of Sub-Committee F, for the work that he has done with the members of that sub-committee in dealing with the origins of this matter and the apparent muddle that has unfortunately arisen over time, which needs clarification from the Government on a continuing basis. Many more questions will come up later on. With extraordinary forensic ability, the noble Lord, Lord Hannay, has led the way in how to be a deep, delving chairman of a scrutiny sub-committee. That is to the benefit of this House and the country.
In fact, we are rightly proud in this House of the elements of our scrutiny system, particularly on European matters, which are in many ways deeper for obvious technical and operational reasons. I make no criticism of our Commons colleagues, but theirs is a different kind of exercise, which is more or less like sifting through a large catalogue of different measures as quickly as possible and trying to get agreement in a hurry. We sometimes have more time to consider, but on this occasion the timetables are determining the discipline needed by the Government to respond in good time to make sure that we get this right. There are still considerable doubts about the whole origins of this policy formation and the policy stance taken by the coalition Government on these complicated and complex issues. This needs to be clarified in the future very much on a basis that will reassure Members of all parts of this House and Members of Parliament in general that the Government are going to be on the right track.
The origin of these proposals in the previous Administration was something of a failsafe or reserve position—that is how I saw it, although perhaps I misinterpreted it—to reassure colleagues in this House and particularly in the Commons that mistakes would not be made in terms of the disappearance of the third pillar and our ability to reach proper decisions on complicated legal and judicial matters that would be made, in the oft-quoted phrase, in the national interest. If only, as my noble friend Lord Teverson said, we could work out what that phrase actually means. The definition of the policy framework put in place by the noble Baroness, Lady Ashton, on behalf of the previous Government when they were going through the procedures for the enactment of the Lisbon treaty legislation was that it was something which would not be used all that frequently. It would be a reserve position, like some aspects of the European Union Act 2011. Some colleagues, including myself, were not very enthusiastic about that legislation; none the less, it set out a reserve position to be used occasionally, not frequently.
I suppose that the political pressure coming from the Eurosceptic portion of the main party in the coalition when the contents were being developed—important policy items that were driven by the Commission’s proposals and the responses from the Council of Ministers—meant that inevitably it looked as though an extra Eurosceptic atmospheric element was being implanted into some of those areas which really would not serve the nation properly. We had proof of that in the responses made by the technical practitioners and officers in the judiciary and the police forces of this country, who, with only one or two minor exceptions, disagreed with the Government on their original proposals. That was the telling reality which the European Union Committee and its sub-committees had to face.
I do not want to go on for too long, so I shall conclude my remarks with some general points that illustrate the background to this matter. The muddle continues, which means that at the end of this debate the noble Lord, Lord Taylor, who is an extremely popular Minister, will have to give some searching answers in order to reassure the House that this is moving along on the right lines. Some of us want to increase the number of opt-ins. I believe I am right in saying that many of us feel that some of the original decisions were hasty and foolhardy, having been made without proper consideration—two prime examples are the European arrest warrant and Eurojust.
It all comes back to the background to this. Many of us wish to see our continuing membership of the European Union armed, as we are now, with the Lisbon treaty, which is an exceptionally satisfactory treaty. Noble Lords will recall that we as the Liberal Democrat party in opposition, alongside the Conservative Party, did not wish to propose any amendments to the legislation that was to back up the content of the Lisbon treaty. That, I think, was the right position to take. It underscored the general feeling among most Members of this House, including the Cross-Benchers, that our commitment to membership of the European Union and our commitment to the future development of the European Court of Justice need not cause the anxieties that some Ministers in the bigger party of the coalition still feel about these European matters.
There is no fundamental attack on our sovereignty because no one is quite clear about the definition of “sovereignty”, let alone “national interest”—a term for which it is very difficult to give a satisfactory definition. I bet that it will not be given during this debate. “Sovereignty” is even more difficult. The definition given by some Eurosceptic MPs in the Conservative Party in the House of Commons and UKIP is probably for the kind of sovereignty that last existed in this country in 1912, before the First World War. Apart from perhaps the exception of countries in the world with very large populations such as India, the United States, Brazil, China and Indonesia—a very interesting developing country—there is no real intrinsic definition of what sovereignty means. The idea therefore that we are damaging our national interest or losing sovereignty by agreeing with judicial, police and anti-crime measures—which should just be common sense—and by working together with other colleagues is really of no interest whatever. This country already has more derogations, opt-outs, exceptions, exclusions and objections regarding individual policy areas of the developing European Union than any other single country. I notice that the noble Lord, Lord Faulks, did not—quite rightly—mention any of the member states that support our position apart from, once, Holland. Of course, as the noble Lord, Lord Boswell, said, in the context of the negotiations, it would not be right to reveal those as negotiations proceed.
None the less, there are statements by Ministers in other member states’ Governments about these matters. I live in France as well and occasionally have a chance to look at the press there and in other countries such as Germany to see what they say. I think I am right in saying, without being foolhardy, that, of the 28 member states, no other one really supports our position on these matters at all. There may be individual items where there would be hesitation. I think the EPPO, the European Public Prosecutor’s Office, is a very good example: it is probably premature and needs further thought and so on, and there is a logical reserve there about subsidiarity. That is perfectly respectable—most legislation in this country is still national rather than European. The latter is the minority. The layer of legislation, rules and disciplines for us in the treaties and European law obliges us to be a hard-working member of a united European collective of sovereign member states, agreeing by treaties between each other to do things together. That of course does not reduce individual national sovereignty but increases it automatically, while also increasing the collective sovereignty of the whole European Union.
In thanking Ministers for their responses, including the noble Lord, Lord Taylor, for his upcoming response to the debate today, I say to the Conservative part of the Government that it needs more self-confidence in the UK as a European member state, rather than the hesitations, withdrawals and drawing back, which seem to be so old-fashioned and immature. That is unusual for a country which has a remarkable history of a self- standing and self-confident parliamentary democracy.
My Lords, it is of course a pleasure to follow the noble Lord, Lord Dykes, who expresses with such purity his enthusiasm for the European dream, which is, of course, also shared by so many of your Lordships, blissfully unaware that the dream has turned into a nightmare for millions of people in this country and elsewhere in Europe.
As to the Motions before us, it appears that the corrupt octopus in Brussels is putting a tentacle round yet more of our sovereignty and, once again, the Government are a willing accomplice. It is small wonder that the British people are getting angrier by the day and more disdainful of us, their political and bureaucratic class. The Prime Minister, addressing the Conservative Party conference on 4 November 2009, said:
“The third area where we will negotiate for a return of powers is criminal justice. We must be sure that the measures included in the Lisbon Treaty will not bring creeping control over our criminal justice system by EU judges. We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level, and ensuring that only British authorities can initiate criminal investigations in Britain”.
He continued with really quite a good bit:
“I recognise, of course, that taking back power in these areas, or negotiating arrangements that suit the UK, is not something we can do unilaterally. It means changing the rules of an institution of which we are a member—changing rules that Britain has signed up to. If we want to make changes, we will need to do that through negotiation with our European partners, and we will need the agreement of all twenty seven member states”.
I trust your Lordships will agree that that is a pretty clear commitment to the return of powers to this country from Brussels in our criminal justice system and, indeed, as we know from the Prime Minister, elsewhere.
However, Mr Cameron spoke with slippery inaccuracy, to put it politely, when he said that of course he would have to gain the consent of all 27 other member states in order to achieve his aim. He may have thought, as a committed Europhile, that he was giving himself an escape route from his promise, in which he clearly did not believe. The point is, of course, that by 4 November 2009 the Lisbon treaty was already law, complete with its block opt-out for the UK from all 135 criminal justice measures. When he made that speech he was simply not telling the truth—or let me be generous and put it down to ignorance—because we did not, and do not, need the consent of any other member state to escape from any or every one of these wretched measures.
In fact, we have now opted out of all of them. All we need to do is to leave it at that, but no—in direct contradiction to Mr Cameron’s promise, his Government are proposing to opt back in to the most pernicious of them, including the infamous European arrest warrant. I do not really want to descend into its sordid detail, or indeed that of Eurojust, or the freezing of evidence and confiscation orders. The wider point is that all these areas have been under the sole control of Parliament for centuries and the Government intend to put them within the jurisdiction of that engine of European integration, the Luxembourg court of so-called justice.
The Government and those who support that transfer do not seem to understand that it is simply not acceptable to the British people for them to be liable to be extradited, to stand trial in an inferior foreign jurisdiction, at the request of an inferior foreign investigator—perhaps for a crime that is not even a crime in this country, such as xenophobia—and left to rot for months in a foreign jail before being tried without a jury.
Perhaps the noble Lord could spend just a little time on the sordid detail of the European arrest warrant. Does he object to us being able to get criminals back from Spain, France, Germany or Italy in order that we can try them and, if necessary, convict them for crimes of a very serious nature? Does he regard as sordid detail the fact that we are able to return nationals of other member states rapidly to their countries, where they have committed or are indicted for crimes, at a time when they are in this country and possibly at risk of committing more crimes?
My Lords, all that can be done as it was done for a very long time, by intergovernmental collaboration. I object to the fact that any one of our citizens should be treated as Andrew Symeou was treated. I do not think that the convenient price that the noble Lord advances for this awful piece of legislation is worth the candle, nor do many British people—actually, most British people.
As I was saying, it is not good enough to say that this is convenient for our police and bureaucracy, which is what the noble Lord was indicating. It is not good enough to say that crime crosses borders, and that all these often corrupt jurisdictions have signed up to the European Charter of Fundamental Rights so they must be as fair as our own. None of these excuses washes with real people in this country. Just one Andrew Symeou case is too many, and there have been others.
Nor is it an excuse for Mr Cameron and the Conservative Party to say that one of the last areas of our national sovereignty is being tossed to the octopus because they are in coalition with the Liberal Democrats, who love this sort of thing—hence, their present standing in the opinion polls. The coalition agreement pledged to,
“ensure that there is no further transfer of sovereignty or powers over the course of the next Parliament”.
Then we had the Queen’s Speech on 25 May 2010, which reaffirmed that legislation would be introduced,
“to ensure that in future this Parliament and the British people have their say on any proposed transfer of powers to the European Union”.
We then had the European Union Act on 19 July 2011. Your Lordships will forgive me, but I have still not understood why these proposed opt-ins do not trigger the national referendum required by that Act. We still have the power to opt out of all these measures, and indeed have done so, so why is opting back in not a transfer of sovereignty?
Perhaps I may ask the Minister another question. If a national referendum was held on whether we should opt in to these measures, how does he think the vote would go? Does the answer, that the British public would reject it in large measure, not show why the Government are practising this dishonest sophistry to deny our people that vote, which they have indeed promised, however they try to wriggle out of it?
My third question—I think for the noble Lord, Lord Taylor, who is to answer in this debate—is the one that I attempted to put before his noble friend Lord Faulks finished his introduction, and I apologise if I was not in order in doing so. The noble Lord, Lord Faulks, said that the Government had nobly refused to join the EU’s proposal for a European public prosecutor because it is inimical to our tried and tested legal system of police, prosecutor, court and jury, each with their separate function. My question is whether the EU’s proposal of its foreign system does not show where the EU intends eventually to go. By agreeing to the 35 measures, are the Government not giving in to yet more EU salami-slicing, in its well known fashion, along the way to its final goal? Even the noble Lord, Lord Dykes, in his peroration, said that a European public prosecutor was perhaps a little premature—quite so: it is premature indeed.
I thought of not speaking in this debate because this sort of behaviour by the Government and the Labour Party can do nothing but increase the support for my party, the UK Independence Party—UKIP is the only vehicle that our people can use to free them from the failed and ruinous experiment of European integration—but, on reflection, I decided to do so because I know that what I have to say today will not have the slightest effect on the Government, just as it has not for the past 22 years, so I thought that I might as well at least put the feelings of real people on the record in your Lordships’ House.
The Government and Labour are toying with the liberty of the individual—with the liberty of our citizens, than which they hold few greater responsibilities. Our people do not like this; they do not like the European Union, and will eventually demand to leave the whole ill fated venture.
My Lords, I shall not seek to deal with all the points that have been raised by my former noble friend Lord Pearson of Rannoch. Suffice it to say that I am not surprised that he did not want to go into details, because most of the propaganda that comes from his party is pretty light on detail and pretty light on telling people how things actually are.
I am sorry to say that I approach the subject of the opt-out, to which I wish to speak, with a feeling of apprehension, if not depression. It is now more than 12 months since I was a member of the sub-committee of the European Union Select Committee dealing with the law, now chaired by the noble Baroness, Lady Corston, so I am perhaps not as up to date with all the detail as the noble Baroness and the noble Lord, Lord Hannay. However, I am bound to observe that the first report of your Lordships’ House was published in April 2013 and debated in July 2013, after a late government response and the issue of what was a truly dreadful Explanatory Memorandum. The report and the debate, in April and July respectively, emphasised the need to ensure that, since 35 out of the 130-odd measures were, in the Government’s own words, in the national interest and we wished to rejoin them, we did not find ourselves in a place at the time of the opt-out where we had not secured our re-entry to those 35 measures.
A year after the original report and nearly 10 months after the debate, with great respect to my noble friend on the Front Bench, I do not feel much wiser as to where we are. However, one thing I know is that the impact assessments in respect of those measures that we wish to rejoin—never mind the impact assessments, if at all, of those that we do not intend to rejoin—are still awaited. In that dreadful Explanatory Memorandum, there was a reference to an impact assessment, which I will read:
“At his appearance before the European Scrutiny Committee on 28 November”—
that has to have been in 2012—
“James Brokenshire gave an undertaking that the Government will provide an Impact Assessment on the final package of measures that the Government wishes to rejoin, should the Government decide to exercise the opt-out”.
That is one of the reasons why I feel a bit depressed, because still there is no sign of that impact assessment as more and more months go by. Soon we will be in the summer and there will be a new Commission, and probably too soon it will be 1 December, so I am concerned as to what progress is being made.
I understand that my noble friends on the Front Bench cannot give details of the negotiations. However, perhaps it is worth noting what my right honourable friend the Home Secretary said in the other place on 7 April in reply to Mr Keith Vaz. This was confirmed in a Written Answer given to my noble friend Lord Inglewood earlier this week. She said:
“Detailed and constructive discussions are taking place with the European Commission and other member states”,
and that the Government are keen to avoid the possibility of an operational gap,
“that will ensue if we have not settled the matter before 1 December, when … the UK’s opt-out takes full effect. Our aim is therefore to reach an ‘in principle’ deal well ahead of that date”.
What do we mean by “well ahead” of that date? In that debate in the other place, Mr Keith Vaz also put this question to the Home Secretary:
“Has she seen reference made to a note by the Greek presidency that was published by Statewatch—it was leaked; it was not published by the presidency—that the United Kingdom needs to have its re-opting list agreed by June 2014; in other words, before the parliamentary recess? Has she seen that note and is that the case? Do we have to get all our priorities ready by then?”—[Official Report, Commons, 7/4/14; col. 27.]
No definitive response was given to that question.
Later in the debate, my right honourable friend the Lord Chancellor talked about the second Motion to be put to Parliament. He said:
“We will come back to the House at the conclusion of the negotiations with the Commission and the Council to offer the House the further opportunity to endorse or reject what we are doing. If this House rejects what we are doing, clearly it will not be possible for us to return to the Commission and simply override the view of this House”.—[Official Report, Commons, 7/4/14; col. 90.]
When it is asked whether the Motion would be amendable, the question of the details of the Motion is deferred to a later date. Faced with the summer, the new Commission and the date of 1 December, I fear for the progress and the time that this whole exercise is taking.
I will admit that I have always considered the whole exercise to be expensive, time-consuming and, in terms of our relations with our EU partners, relatively pointless, since the Government’s own Explanatory Memorandum did not identify any one of these 130-odd measures as being detrimental to the national interest. I also note that my party, which I support in the vast majority of instances, says that its priorities for Europe include fighting to make our,
“police forces and justice systems able to protect British citizens, unencumbered by unnecessary interference from the European institutions, including the European Court of Human Rights”—
which of course is nothing to do with the EU in this conversation—and is seemingly ignoring all the evidence that has been given by police and legal sources supporting many of these measures. I wonder whether we are indulging in some kind of ritual dance involving opting out and then opting back in so that at some time in the future we can negotiate to come out again. I hope that my noble friend will understand my concerns, my apprehension and my depression, and why I am probably very confused.
My Lords, I am very glad to follow the noble Lord, Lord Bowness. I think that a tribute is due to him for the very important part that he has played in the issues before us during his time as chairman of one of the relevant committees. The reason why I am glad to follow him is that over the years I have come to respect him very deeply for his intellectual integrity, his powers of penetrating logic and analysis and his courage in saying what he believes is right when it is not always very convenient or perhaps enjoyable to find himself doing so among colleagues who have totally different approaches. A tribute is due to him not only for his work in the committee but for the standards that he brings to our activities in the Lords, which I believe the Lords should be all about.
I am glad that the noble Lord made a passing reference to the European Court of Human Rights because in all the popular debate that goes on, in which our ill informed media play too distracting a part, too often the perception is that the ECHR is central to the European Union, but of course it is not. Indeed, many distinguished statesmanlike Conservatives, not least Churchill, played a key part in all that led up to the establishment of the ECHR. From my standpoint as someone who believes passionately in justice and indeed human rights across the board, it is far stronger to have a court that operates internationally on universal principles than to drift into a world of relativity in which some people feel that certain human rights are appropriate in one situation but not in another. Human rights are absolute. That is why the European court is so important.
I have thanked the noble Lord, Lord Bowness, for his remarks; I also join in thanking those who are leading us in these deliberations at present. The chairman of the European Committee, the noble Lord, Lord Boswell, plays a critically important part. Not only does he play it well but he is very helpful and wise in his relationships with the sub-committees that work with him.
I am also glad to see my noble friend Lady Corston—my old friend and colleague—in her role. I had the challenge and enjoyment of working under her chairmanship when she was a very distinguished chair of the Joint Committee on Human Rights and I know just what she brings in her ability as a chair and in her disciplined approach to what is before the committee. I know well that we are fortunate to have her there.
We are going to miss the noble Lord, Lord Hannay, in our deliberations. However, if I know anything about him—and I claim to know quite a bit about him because a long time ago, when I was Minister of State in the Foreign Office, he was a young official working to me and I was always on my toes when he came into the room, and I have not changed since—I know that he is very able, extremely experienced and very incisive in his advice and chairmanship. It has been very challenging and intellectually a very good experience to work under his chairmanship in one of the sub-committees. However, if I know anything about him, we are not going to lose him from these deliberations. I cannot imagine the issues of Europe being before the House without the noble Lord having a good deal to say about how we should approach them and what we should do. I hope that that will continue long into the future.
There are only two or three points that I want briefly to make. On procedure, I should like to underline what some noble Lords have already said. The Government have repeatedly underlined how they value the Select Committees and the work that they do. If they do, they should at all times be striving in every possible way to put the committees in a position to do their job as effectively as possible. There has been too much tardiness in making available to the sub-committees the information that we need to do our job properly if we are to meet our responsibilities in reporting to and leading discussion in the House. I hope that the Ministers currently in place will look at this record and see how, across departments, they can put this right. The delays have sometimes been quite inexcusable and could too easily be interpreted as sabotage as key information, for example, has become available on the same day as a debate is taking place in this House. That is just not acceptable.
I turn now to the key issues. I was very glad to hear the speech by the noble Lord, Lord Dykes. I so often find myself in a very great amount of agreement with what he says. If we look at the issues of security, crime and drugs, and of liberty and freedom, we can see that they transcend all national barriers. Crime and terrorism are international in character. It is therefore obvious to me that one needs effective international collaboration to deal with them. It is not a matter of always neurotically asking, “Wait a minute—how does this affect the efficiency or effectiveness of our own institutions?”; it is a matter of asking how we, with our experience and expertise, can continue to strengthen international collaboration and effectiveness and play a full and unchallenged part as part of the international team which is trying to get things right and make them as strong as they possibly can be in their operation. In this realm, too often, the arrangements are only as strong as the weakest link. We should concentrate on the weakest link and ask how we can help it to perform better. If we are to play that part, it is not a matter of rhetoric and hectoring; it is a matter of being part of the team that is tackling the task. People should see us as a constructive, positive member of the team, trying to build things as best as they can be.
Dare I say that we in this House sometimes still delude ourselves into thinking that there is this international respect for Britain in Europe and elsewhere? I encounter quite different attitudes towards Britain—that we have become an irritant, that we do not commit ourselves fully and deeply enough to the international collaboration which is necessary. We make concessions in that direction. We grudgingly say, “Well, a bit of practical co-operation here might help”. A feeling of belonging and engaging is conspicuous by its absence. We have got to get that right. That is why I have nothing but contempt for the UK Independence Party, which seems to want to betray the British people by thinking that their security, safety and liberties can best be protected on a purely insular basis. This is palpable nonsense. We will secure the well-being of the British people by being international players and having strong international institutions in which we can play our part. That is my first point.
My next point is to express the hope that those who consider these reports will not just read their conclusions but read the evidence. The evidence is extraordinary. When we were considering these issues the overwhelming majority of witnesses told us without qualification that they simply did not understand the exercise in which we were involved. These experts, officials and people with key security responsibilities and the rest, deeply involved in looking to the well-being of the British people, have found these international arrangements increasingly helpful. They want them to be strengthened. They do not see how our negative attitudes and impressions will help in taking that cause forward.
The argument is there in detail, from witness after witness, and I hope that people will read it. The overwhelming majority of those who are engaged and have been delegated the responsibility of looking to our well-being are absolutely certain of the importance of the provisions. Of course there are things which are out of date. Of course there are things which are inadequate. However, I ask noble Lords whether we are going to get that right simply by withdrawing or by being strong members of a team who recognise as a team that these things are wrong and must be addressed and try collectively to get them right?
I am glad that these reports are before the House. I find it immensely rewarding to serve on the committee. I believe deeply that the Government have no greater responsibility than ensuring the well-being, protection and fulfilment of the human rights of their people. I am absolutely certain that we will not get that right until we are players second to none in building an international culture in this respect.
My Lords, I have always said that you cannot play the ball if you take your bat home. If you walk out of a negotiation, you should do it only if you have planned to do so, and if you have a strategy for getting back in. Early in my professional career, I knew a solicitor who mistakenly walked out of a meeting in his own room; there is no way back from that.
My default position is clear: stay in the game and stay in the room, and do not be overconfident—or, indeed, arrogant—about being invited back. The noble Lord, Lord Hannay, and others, put all that far more diplomatically than I just did.
I may be blissfully blinkered, but I recognise the dangers in being too simplistic about all this. I recognise the importance of careful scrutiny, as did my noble friend Lord Faulks. He recognises that the Executive can benefit from that. The points which have been made about the impact assessments are not rhetorical, but points of real substance. Until I listened to this debate, and in particular to what the noble Baroness, Lady Corston, had to say, the importance of an impact assessment of what you are not doing—of what you are opting out of as well as opting in to—had not occurred to me.
Therefore, although my first reaction to the very scathing joint report of the three Commons Select Committees was to wonder whether they were too close to a whinge to be useful, they were not wrong. Process, as well as substance, is important. So, too, is the procedure for the eventual vote, which it appears will be a vote in the singular. The Home Secretary has made it clear that we will be presented with a package. All noble Lords will be acutely aware of the tensions and constraints of being faced with a single decision; we face it every day with secondary legislation, which is unamendable.
It is trite but true that in such an internationally connected world, the bad guys are among those who are internationally connected; the noble Lord, Lord Judd, put that very clearly. Many Europhobes seem to distinguish between the states in the European Union and their roles within the EU, and as holiday destinations. I am sure that many who have very determined anti-EU views would be apoplectic if they were described as being soft on crime. However, if one thinks about the measures which we are being asked to consider, the resistance to many of those measures in the area of justice and home affairs is tantamount to that. I agree very much with my noble friend Lord Teverson that it would be very helpful, essential even, to disaggregate the term “national interest”. It is a matter of identifying the priorities and explaining what you mean by it. Some aspects of national interest are in conflict with one another, so one has to be clear about which ones take priority.
I do not pretend that opting in to everything is any sort of panacea. The Minister mentioned the Passenger Name Record data agreement and the Council decision on that. The annual report confirms:
“The UK has recognised first-hand the benefits of PNR through its own border systems”.
Just after reading that I read a piece by Simon Calder in the Independent about the recent problems with the IT systems at our borders, when,
“the passport readers and ‘e-gates’ stopped working. Manual processing led to ‘longer queues for some passengers’ according to the Immigration and Security Minister … that translated as ‘mayhem’”.
The Minister, he goes on to say, said:
“‘Security must remain our priority at all times’”.
Of course; but we have a very respected journalist saying:
“What the minister actually meant was: the illusion of security must be maintained at all costs”.
He went on to describe the problems around that, saying:
“The authorities want to keep bad people out. Yet the UK’s frontiers … are leaky. So officials plod dutifully through the procedure of manually entering the passport details of returning holidaymakers who they know pose no threat and are merely tired, grumpy and keen to get home”.
I mention that because it seemed to me to point to the experience of some of our systems as experienced by our citizens on a day-to-day basis, and their perception of how we go about some of these things.
I wanted to mention two other matters; so much else has been covered. The first is the probation order. Our EU Committee, in its inquiry on the 2014 opt-out decision, referred to this, reiterating the view that the,
“measure has potential to provide benefits for the management of offenders on a cross-border basis and that nothing is being gained by not implementing its provisions”.
The Government’s response was to support the principle but to be concerned about practical operability and the possibility of different practices among member states, with there being,
“no clear understanding as to how this measure will work in practice and thus very little evidence on which to judge its effectiveness”.
The Government’s response to the EU Committee was to say that these issues are,
“unlikely to be resolved during our negotiations with the Commission”.
I latched on to a comment by the Justice Secretary in a debate in the House of Commons, when he said:
“At the moment we believe the measure is flawed and we have therefore decided it cannot be in the list of things to opt back in to”.—[Official Report, Commons, 7/4/14; col. 92.]
I cling on to the phrase “at the moment”, in the hope that the moment will come, because it would be a great pity if those with suspended sentences, who are doing community service or are on probation, cannot fulfil their sentences back in the UK rather than where they have been sentenced. This would be so much in line with our own rehabilitation agenda. In recent weeks we have often discussed such matters as prisoners in this country being released into the areas where they will be at home with their families, and the importance of settling back with family and a job, without delay. I hope that the Government can keep working at this to overcome the difficulties that have been identified.
We have also not opted into the directive on children suspected or accused in criminal proceedings. I mention that as well because the points that I am going to list will resonate with Members of your Lordships’ House. We spend a lot of time, rightly, on considering children within the justice system. The directive covers matters such as a mandatory right to access to a lawyer and not being able to waive the right, as well as a right by children to an individual assessment to identify the child’s specific needs for protection, education, training and reintegration into society. Then there is the questioning of children being recorded. The directive says that,
“all measures alternative to deprivation of liberty should be taken by the competent authorities whenever this is in the best interests of the child”.
“In proceedings involving children, the urgency principle should be applied to provide a rapid response and protect the best interests of the child”.
I understand that there may be questions over how these things are applied, but the principles are ones that we would all agree with.
I have said that I am concerned about the style of negotiation and how we will be left with a series of bilaterals, which of course always depend on the other party agreeing to play. The short point is we cannot assume that those negotiations will succeed in our terms. This is all work in progress. I do not suppose that my noble friend Lord Taylor of Holbeach will respond to the encomium of the noble Lord, Lord Dykes, with anything other than due thanks.
Like the noble Lords, Lord Teverson and Lord Boswell, I think that comprehensibility and transparency are important because you are not really transparent unless most people understand what you are doing and saying. All this is central to this area of work. It is important that, in dealing with these issues, Parliament and the Government are not just accountable but manage to deal with them in a way which is reasonably accessible and understandable—to Parliament, as a start, as the noble Lord, Lord Boswell, said. I do not want to continue to share the analysis and the gloom of the noble Lords, Lord Bowness and Lord Judd.
My Lords, I concur with the noble Lord, Lord Hannay, in welcoming this “double header” debate. It would have been nonsensical to have a debate on the fourth annual report and not look at it in the wider context of the government proposals we have already debated on the opt-out/opt-in in relation to crime and justice issues. However, I share with other noble Lords a sense of déjà vu in relation to the debate.
The noble Baroness, Lady Corston, was more generous in her comments and rightly referred to the comprehensive discussions that we have had. We were right to have those. We have had several debates, Statements and Questions on opting into EU justice and home affairs measures and on the Government’s proposals to opt out of all the EU measures on tackling crime, but then, as we have heard, seeking to opt back into some of them—around 35.
The noble Lords, Lord Judd and Lord Kennedy, said extremely appropriately that these issues strike at the very heart of what we value about our society because, as the noble Lord, Lord Judd, said, the Government’s first duty is to the safety and security of its citizens. The noble Lord, Lord Faulks, said that this is a complex issue. It is quite technical but it is also in this sense a very simple and straightforward issue: will the Government’s proposed opt-out make our citizens safer and more secure? Will it ensure that we can better and more effectively tackle crime? The comments of the noble Lord, Lord Dykes, about the law enforcement agencies’ concerns in this area contrast sharply with the rhetoric we heard from the noble Lord, Lord Pearson.
We have to recognise that modern crime respects no borders, whether it be drug trafficking, people trafficking, money-laundering, kidnap, abduction, cybercrime, paedophilia and, of course, terrorism and threats to national security. These crimes are all the more dangerous and more complex because they transcend borders and the fight against them has also to cross borders. The Government have to be honest and admit that, despite the political rhetoric, they also accept that principle. The fourth annual report on the application of Protocols 19 and 21 regarding opt-outs and opt-ins reinforces how integrated and connected the fight against crime is, and has to be.
At the same time as the Government are boasting about how many measures they are opting out of, this report highlights those that the Government have opted into. The noble Lord, Lord Faulks, said that of 21 proposals eight were rejected and the opt-in was not taken up, but 13 were accepted and opted into. Why is that? It is because in these cases the Government look into, and make an assessment of, the content of the proposal, as the noble Lord, Lord Faulks, confirmed. They consider the advantages and disadvantages and the benefits to the UK. Those are the right questions that should be asked in every single case. In three cases those issues were debated in your Lordships’ House in very useful debates. The Government put their case and we had the benefit of reports from our own EU committee. I well recall that in the case of the EPPO debate, the Government received broad support for their position. However, this fourth annual report has to be taken in the context of the wider debate on the Government’s proposals for opting out of all EU justice and home affairs measures—around 130—and then trying to opt back into 35, although that figure may change.
It has been disappointing that the public debate about these 130 measures has been of a different tone and character to the debate that we have had on the fourth report. To many of us, it seems that the public debate on these issues seeks to obscure rather than present the facts. Too often—we heard a taste of it today—the debate on anything European becomes one of those in which those with very strong views try to persuade everyone else that they should share those views. It has been interesting for those of us who have been speaking to people during the run-up to the European elections that many people readily admit to being totally confused by the political rhetoric that they hear on TV and on their doorsteps—the conflicting figures and facts that they are given. My impression is that what people really want are hard facts, accurate information and the space to be allowed to make up their own minds on the issues. In contrast, the debates in your Lordships’ House have been rooted in those facts and information, and could have been of enormous benefit to the Government in their examination of the issues. The reports of our EU Committee on the implications of the opt-out and opt back in again have been forensic, detailed and extremely valuable to our debates here and for wider consideration.
The noble Lord, Lord Pearson, made an unsurprising speech. I welcome him to today’s debate because he failed to take part in any of our other debates on these issues. I recommend those reports to him.
My noble friend Lady Corston illustrated the commitment of our EU Committee and the sub-committees to the effectiveness of their scrutiny role. I was concerned at the point she raised about the lack of co-operation from the Government, and I hope that the Minister can respond to and address those relevant concerns.
I hope that our debates have had an impact on the Government. The initial government statements and comments about the opt-out were not about the value of individual measures. They said that this was going to be a historic transfer of powers. The UK was going to be liberated from the shackles of EU regulation and bureaucracy. That is not quite right, is it? When a serious look is taken at the individual measures and at what really matters—the interests of UK citizens—the response becomes very different.
We have had so many debates that I am slightly losing track of how many we have had, but I have been asking similar questions and have failed to get clear, concise answers from the Dispatch Box from various Ministers. Today I shall try again. Today is slightly different because I can ask as well as answer the questions. The relevant question that has echoed throughout our debate relates to the impact assessment of the measures that the Government seek permanently to opt out of. I have asked these questions again and again. How many of the measures that the Government want to permanently opt out of are relevant to the UK and currently being used? Eventually we received some clarity. We now know that the Government want permanently to opt out of measures to tackle racism and homophobia; but we have domestic legislation that deals with that issue. We are not going to seek to opt back into a directory on international crime; but, again, it has not been published for the past two years. Much of this is a sleight of hand.
Looking at the various documents that we have had for some time, my understanding is that the measures that the Government are seeking permanently to opt out of are basically harmless and irrelevant. Some are out of date and no longer relevant. Some we have never used and do not have to use. Others are agreements to co-operate, and the Government intend that to continue. Some relate to minimum standards that we have already met or exceeded. There is a temporary system for dealing with counterfeit documents that has already been replaced. A bundle of measures applying to Portugal, Spain and Croatia do not even apply to the UK. We have not yet been told if any of the measures that the Government are seeking permanently to opt out of are harmful to the UK. That is why I endorse the calls made today for a proper impact assessment of not just those measures that the Government seek to opt back into but those that they seek permanently to opt out of. It seems to me that the Government are prepared to risk those measures that they even consider essential by being strong and bold in jettisoning the totally irrelevant.
The Minister may correct me but my understanding is that the Government are seeking to opt back in to 35 measures, and that number is likely to increase when the European Commission adds any necessary partner measures. Where measures are important—where they make a difference to people’s lives—we are going to seek to opt back in. I may be wrong and we are opting out of something hugely significant. If so, what is it? However, we are opting out of all measures without any guarantee of being able to opt back in, even to those that the Government admit they need. It is a gamble but I am prepared to accept that, following negotiations, there will be a process of some kind for opting back in.
The point made by my noble friend Lord Kennedy is very important. We are not clear about whether there will be any gap in application or implementation between opting out and opting back in. This is not a historical moment for the anti-EU members of the Government but it is an illustration of the weakness of a Government who feel that they have to pander to anti-EU rhetoric.
I want to be clear on two points. One is the principle of the opt-out. We negotiated it but we were also clear that we would not exercise the opt-out without guarantees regarding an opt-in, particularly regarding the European arrest warrant. I am fully aware of the concerns and issues regarding the arrest warrant and I welcome any improvements and positive changes to it. However, let us really understand why it is so very important that we retain that mechanism for police co-operation and intelligence-sharing across borders, and that we do whatever we can to ensure that those who are guilty of some of the most appalling and truly shocking crimes, such as abduction, rape, people trafficking and drug trafficking, can be caught and brought to justice.
There are numerous examples of the value of the European arrest warrant and I shared some of them with your Lordships in previous debates. It would have benefited greatly from the UK Government implementing the European supervision order to prevent British citizens being held in poor conditions in some foreign prisons while awaiting trial. No doubt other improvements could be made. However, I disagree most profoundly with the noble Lord, Lord Pearson, about the benefits of the arrest warrant. He said that he speaks for real people when he opposes the EAW. Perhaps I may quote from a real person. Beatrice Jones was the mother of Moira Jones, who was assaulted, abducted, savagely raped and murdered by an EU national. Beatrice Jones said:
“He fled the country but because of the dedication and determination of Strathclyde police along with the cooperation of Slovakian police, he was arrested and extradited back to this country ... EU police cooperation is essential for the safety of all”.
That comes from a family who directly benefited from the arrest warrant, and justice was brought because of the EAW.
My Lords, the noble Baroness tells us a heart-rending story but why could this criminal not have been returned to this country under normal extradition arrangements? Why do we need to give up our sovereignty in order to expedite this sort of thing? Why do we have to tolerate an Andrew Symeou case or any case involving a British citizen in order to achieve the result that the noble Baroness has just referred to?
My Lords, changes could well be made, and I have already indicated one: this Government should have accepted the European supervision order. However, we are not ceding any sovereignty whatever by being able to go to another country to return criminals to the UK to face justice or by extraditing criminals to other countries to face justice there. That is not giving up sovereignty; it is bringing justice to those who deserve it. I am not prepared to say to a mother whose daughter has been murdered or raped that we will not continue with the European arrest warrant, which ensures that we are able to extradite criminals quickly. The noble Lord may be slightly older than me but I remember the days of the Costa del Crime, when this country struggled to extradite back to the UK criminals who had committed crimes and fled the country.
Real people want that protection and I welcome the fact that the Government have now made a U-turn and accepted that we need the European arrest warrant. However, we need assurances that they are not going to put public safety at risk through there being a gap between the opt-out and opting back in. The European arrest warrant is a legal framework and transition measures will have to be legally robust to ensure the satisfaction of the courts in dealing with extradition. Those arrangements have now expired so we need to ensure that there is no gap.
In conclusion, I am concerned about the whole process. Our EU Committee remains unconvinced by the Government’s arguments on the opt-out. Perhaps the most damning and worrying comments I have read in the whole of these debates are in paragraph 19 of the committee’s follow-up report, when it refers to the,
“lack of analytical rigour and clarity regarding evidence drawn upon”,
by the Government. That should give us all cause for concern.
Three Select Committees in the other place— the European scrutiny, home affairs and justice committees—have raised their concerns about the process in an unprecedented joint report. That echoes some of the questions that have been raised today. The Government need to respond to three key questions. Do they really need the re-opting list ready by June or next December? Is it on schedule to be ready? What arrangements have been made if agreement is not reached by that deadline? What are the transitional arrangements? It would be a tragedy for this country and for justice if the real things that matter to people in this country, such as the ability to tackle crime across borders, were sacrificed because of political rhetoric and campaigning against Europe.
My Lords, I am delighted to reply to this debate. I enjoy always talking about this issue as we hear good speeches from all sides of the House and there is plenty to debate, of course.
Before addressing the particular points made in the debate, I join my noble friend Lord Faulks in expressing my gratitude for the work done by this House and by those responsible in the European committees in scrutinising this area of our activity. These are important matters that we are debating today. I thank all noble Lords for their contributions to what has been an engaging and constructive discussion.
The Government are fully committed to engaging with Parliament on European Union issues and I greatly appreciate the opportunity to do so. The debate has focused on two separate but equally important matters: the fourth annual opt-in report on post-Lisbon police and criminal justice measures and the UK’s 2014 opt-out of all pre-Lisbon police and criminal justice measures. Both matters raise important questions about the protection of human rights and the ability of our law enforcement agencies to work with their EU counterparts to keep British citizens safe.
If I may, I will address, first, the matter of the UK’s opt-in to post-Lisbon police and criminal justice measures. I hope that it will help my noble friend Lord Bowness in his confusion if I say that we in Parliament have endorsed the coalition’s approach to this issue. As my noble friend Lord Faulks set out earlier, the Government have been clear that they will take opt-in decisions on a case-by-case basis. We consider factors such as the impact of the measures on our security, civil liberties, the integrity of our criminal justice and common law systems and on the control of immigration. At the heart of it all is a commitment to focus on the national interest. My noble friends Lord Teverson and Lord Dykes asked me whether I could define it. It is like one of those things that you meet upon the road. The best essay I can present is that I hope I will recognise it when I see it. As such, we will opt in only when we believe it is in the UK’s interest to do so.
The noble Lord, Lord Pearson of Rannoch, has a different view. I believe that his absolute approach is not in the national interest. But the fact that he is wrong—or I believe him to be wrong—does not mean that we do not enjoy his contributions to our debates. The question that he raised on the referendum issue actually occurred in a previous debate and I gave a clear answer then:
“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”.—[Official Report, 23/7/13; col. 1281.]
It clearly does not reassure the noble Lord.
Almost. We have been promised a referendum again and again in the examples that I gave—first of all by his leader, Mr Cameron, before he became Prime Minister, in the Queen’s Speech in July 2010 and then in the Referendum Act 2011. Everyone understands that to mean that if there is a transfer of sovereignty to the European Union, we would get a referendum. It is not good enough to go into the intricacies. None of those statements said, “This requires treaty change”, or anything of that kind. It is quite simple. Everyone understands that if we give powers back to Brussels, we get a referendum.
While the Minister is at it, will he answer one of my other questions? If there were to be a referendum on these opt-ins, particularly on the European arrest warrant, which way does he think people would vote?
I always have difficulty in trying to persuade the noble Lord on this issue because he clearly has a very different opinion. I would just say that the opt-out position was exactly that. We were already involved. The treaty decisions had been taken in that respect. I am perfectly accurate in the answer that I gave him. If the noble Lord wants a referendum he should vote for the Conservative Party at the next election because we have offered a referendum in the case of a successful outcome for the Conservative Party at that time.
The noble Lord also asked about the European public prosecutor and used that as a sign of the future direction of the EU. I must say to the noble Lord that the UK negotiated an opt-in to ensure that where a proposal is not in the UK’s national interest, we do not take part. The ability of Parliaments to issue reasoned opinions on subsidiarity issues related to Commission proposals is a further check on the Commission’s bringing forward proposals outside the intent of those treaties. I hope that the noble Lord will consider what I have said and see exactly how the Government are approaching this issue.
I thank the noble Lord, Lord Hannay, for providing us with a draft of what he was going to say because that enabled us to focus on those particular interests. I will attempt to respond to them. He asked, first, whether the Government will opt in to the Europol regulation post adoption. The Government did not opt in to the Europol regulation initially due to concerns about the obligation to provide data, even where it may conflict with national security. I think I have made that clear before. As the regulation makes subject to the jurisdiction of the European Court of Justice member states’ reasons for not undertaking an investigation requested by Europol, this creates a risk that the Court could dictate national law enforcement priorities. The Government have committed to opting in post adoption if these concerns are mitigated. That is our intention, and I explained it when we debated this issue previously.
Secondly, the noble Lord asked whether it is the Government’s intention to opt in to the proceeds of crime directive post adoption. We did not opt in to this measure as we had concerns that the directive would interfere with the workings of the Proceeds of Crime Act 2002, thus reducing our ability at home to tackle serious and organised crime. As noble Lords will know, under the Proceeds of Crime Act it is possible to seize assets illegally obtained where no conviction has been secured. That is not possible under the directive, and we feel that that is a deficiency in its case. This Government would want the UK and other international partners to utilise the most effective legal powers to disrupt individuals who seek to hide the proceeds of crime across borders both in the EU and beyond. We will be considering whether to opt in to the measure now that it has been adopted, including considering the opinion of the EU Committee in this regard.
In relation to readmission agreements, participation in these agreements is considered on a case-by-case basis according to the priority attached to the country concerned in the area of immigration returns and the existing bilateral relationship with that country. Should the UK choose not to participate in an agreement and circumstances change, the UK can seek to participate in it post adoption. With respect to Turkey, the UK opted in to the conclusion of the readmission agreement between the EU and Turkey in June 2012. I understand that Turkey is currently passing the agreement through its Parliament and we expect the Turkish authorities formally to adopt it this year.
The noble Lord also raised concerns in relation to the Kosovo association agreement and the European police college proposal. The unfortunate instance of missing the opt-in deadline occurred in the case of the Kosovo framework agreement on Union programmes, not the stabilisation and association agreement with Kosovo. The regrettable combination of circumstances that lead to this oversight has been addressed, but lessons have been learnt for subsequent framework agreements of a similar nature and the opt-in has and will be asserted in those cases.
In relation to the CEPOL proposal, the Government informed the presidency of our opt-in decision on the deadline itself, which was 13 March. Paragraph 10 of the Code of Practice on Scrutiny of opt-in and Schengen opt-out Decisions commits the Government to notifying the parliamentary scrutiny committees of an opt-in decision as soon as we have informed the presidency, but not to doing so earlier. Although I believe that we have therefore complied with our notification commitments, I wish to emphasise that we would usually seek to provide the committees with an indication of our opt-in position and regret that the internal processes did not allow that to happen on this occasion. I should like also to reiterate at this stage the Government’s commitment to ensuring that the EU Committee in this place has the appropriate time to provide an opinion on the UK’s opt-in decisions. The noble Lord, Lord Judd, is right. I recognise that the Government do not always meet this commitment and I think noble Lords will know that it is my intention for us to achieve a better performance in this area. As my noble friend Lord Boswell observed, it is not always easy to spot justice and home affairs content, particularly when the general focus of a measure is not JHA-related. However, we are raising awareness across government at official level. There have been senior-level discussions, new guidance is being circulated and we will be rolling out more bespoke training in the next few months. We hope that this will improve areas where this circumstance has arisen in the past.
I now return to the matter of the UK’s opt-out of pre-Lisbon police and criminal justice measures. First, I join my noble friend Lord Faulks in thanking the noble Lords, Lord Boswell and Lord Hannay, and the noble Baroness, Lady Corston, for their chairmanship of the EU Select Committee and the two sub-committees they represent here today. The committee’s two reports represent an extremely thorough analysis of complex issues and the Government are greatly appreciative of its efforts. I thank all committee members for their work in that respect.
Scrutiny can be an iterative and long-running process. The Government have already taken a number of steps to ensure that Parliament’s views on this matter are heard and understood. However, before I turn to the points on the 2014 measures raised during the debate, I would like to reiterate the Government’s commitment to continuing parliamentary scrutiny of this matter. As my noble friend Lady Hamwee said, we will hold another vote later in the year on the final package of measures that we will apply to rejoin. We will publish impact assessments on each of these measures in good time for that vote. For noble Lords who have expressed concerns about the quality of the impact assessments and Explanatory Memoranda, they are objective judgments and are drawn up in line with government guidelines on those matters. I am very happy to commit myself to replying to that debate when it happens later in the year.
I will respond to some of the points that the noble Lord, Lord Hannay, made in his excellent speech. He set out a number of important points that have helped guide this debate and I am happy to respond to each one. The noble Lord asked about timings on this matter. We are aiming to reach an in-principle deal with the Commission and other member states as soon as possible. Other states support this aim; they are with us on this strategy and are keen to resolve the issue in a timely and orderly fashion.
The noble Lord, Lord Boswell, and the noble Baroness, Lady Corston, both asked about my assessment of progress. My noble friend Lord Faulks and I will update the House and its committees when we can. I am by nature an optimist—as I think most noble Lords will know—and the House might therefore expect me to say that we are satisfied with the general progress of the negotiations. I am happy to reiterate the Government’s commitment to hold a second vote before seeking to rejoin measures. We certainly hope to hold the vote ahead of the House rising for the Summer Recess, but we are not in a position to confirm that. However, I can confirm that we will hold the vote well ahead of 1 December.
The noble Lord, Lord Hannay, asked about the timescales for providing impact assessments on the measures that we are seeking to rejoin and those that we are not. I think we know that there is a difference of view in this area because the Government remain committed to providing an impact assessment on the final package of measures that we are seeking to rejoin, and this will be provided in good time ahead of the second vote.
I thank the noble Lord, Lord Hannay, for his patience in waiting for this matter to be answered, but the Government do not intend to provide impact assessments on the measures they are not seeking to rejoin. This is because the starting point for any analysis is that the opt-out has been exercised, and not seeking to rejoin a measure will not have a direct impact on the UK. I expect that the noble Lord, Lord Pearson, will actually agree with me on that point. Noble Lords will be aware that the original decision was accompanied by a White Paper covering all the issues that were raised by the opt-out.
The legislative history of this matter is very tangled. Perhaps the noble Lord will reflect on the following. When his colleague, James Brokenshire, gave evidence, I think at the end of 2012, he committed to producing an impact assessment. That commitment was not limited to the measures that the Government were going to rejoin, for a very simple reason: Parliament had not at that stage endorsed the decision to opt out at all. The commitment that was given in 2012 by James Brokenshire was to provide an impact assessment for all 133 pre-Lisbon measures. That commitment has not been fulfilled.
That is water under the bridge. The decision has been taken to trigger the block opt-out, but I think that legislative history demonstrates why the noble Lord, Lord Boswell, the noble Baroness, Lady Corston, and I, and many others, are saying that there must be a set of impact assessments on both the measures we are going to rejoin and those we are not going to rejoin. That was the commitment given by the Minister. If one stops to think about it, I am afraid the argument that the noble Lord has just advanced—that somehow or other something we are not going to rejoin cannot have an impact here—is pretty bizarre. Of course it has an impact: it has an impact on us that we are not rejoining.
That impact could be neutral, positive or negative, but it is an impact. I am sure that hard-working Home Office and Ministry of Justice officials are reluctant to add some 85 measures on which they have to produce impact assessments, but that is not a good enough reason. I hope that the noble Lord will perhaps not give a final reaction to that now but will reflect further on the desirability, if the proceedings are to be brought to a successful conclusion—as I personally and many others hope they will be—that before we do that we have impact assessments that cover the whole waterfront.
The noble Lord has made a strong point, as he always does, but I have given the answer of where we are on that issue and I do not intend to go into it in any more detail now.
The noble Lord asked about contingency arrangements. That issue is important because our aim is to conduct the negotiations as soon as possible to ensure that there is political and legal certainty for all involved. It is not the intention to have an operational gap between the date on which the opt-out will take effect and the point at which the UK rejoins measures. We place great importance on this issue and believe that it is in everybody’s interest to eliminate any risk of an operational gap. It is clear from the negotiations that member states and the Commission are also keen to avoid such a gap—and I say to the noble Lord, Lord Kennedy, that this includes the operation of the European arrest warrant. It is in everybody’s interests to make this work, and I think that the whole House would agree with that.
The noble Lord, Lord Kennedy, asked about prisoner transfers. We are seeing more returns under this measure; the numbers remain relatively low, however. On returns of foreign national offenders from outside the EU, the UK has reached voluntary prisoner transfer agreements with more than 100 countries outside Europe.
The noble Baroness, Lady Corston, asked about the delay in responding to her letter asking about the right of access to a lawyer directive, which is the MoJ’s responsibility. We are still considering whether to opt in post adoption and have nothing more substantive to say on that at the moment. The noble Baroness asked about Eurojust opt-in negotiations. She will know that negotiations on this proposal are ongoing. The major issues for member states are those that I have just noted.
She asked also about the marginalisation of the UK in Europe due to opt-in/opt-out. That is not our experience. Member states welcome the UK’s involvement in the JHA measures, especially in areas where we are seen to have specific expertise—as we often have in JHA matters. The UK continues to exert influence over negotiations and maintains a seat at the negotiating table even when we are not opting in.
In concluding today’s debate, I thank all those who have spoken; it has been very worth while. I echo the words of my noble friend Lord Judd in paying a compliment to the noble Lord, Lord Hannay.
The point is made. Unfortunately, I do consider the noble Lord to be a friend, but I apologise for the slip of the tongue. I was going to talk about another person whom I consider a friend, and somebody whom this House greatly respects: the noble Lord, Lord Hannay. His contribution today was typical of his holding Governments to account. That is what we are here for, and it is right that he does that. I am sorry that this will be his last intervention in the particular role that he has in EU Sub-Committee F, but I am sure that it will not be his last involvement in debate. We look forward to these debates in future and I thank all noble Lords for their involvement today.