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EU: UK Opt-in Protocol (EUC Report)

Volume 764: debated on Wednesday 15 July 2015

Motion to Take Note

Moved by

That the Grand Committee takes note of the Report of the European Union Committee on The UK’s opt-in Protocol: implications of the Government’s approach (9th Report, Session 2014–15, HL Paper 136).

My Lords, the report for today’s debate focuses on the Government’s policy on the opt-in protocol, which allows the UK and the Republic of Ireland to opt in to or out of EU justice and home affairs measures. The report concerns, in particular, the Government’s approach to measures—most often, international agreements—which do not have a justice and home affairs legal base. The policy of the Government is one that the former coalition Government applied from 2010 onwards, during which time both the EU Select Committee of your Lordships’ House and Sub-Committee E, which is the Justice Sub-Committee, had occasion to question its lawfulness.

The inquiry that led to this report was triggered by a letter from the then Justice Secretary and the then—and current—Home Secretary in June of last year setting out the Government’s opt-in policy in some detail. The novel reasoning underpinning that letter prompted us to hold a short inquiry. We wanted to seek the views of legal experts on a dispute that had hitherto been confined to us and the Government. We were also prompted by a series of judgments from the Court of Justice over the previous two years that appeared to put the Government’s policy in some doubt, so we wanted to seek the views of legal experts on those cases also.

While our inquiry at first glance may appear to have focused on a very narrow area of government policy, we felt that the Government’s approach raised wider concerns. First, we were increasingly concerned that the approach violated basic EU principles. We also thought that it could give rise to legal uncertainty in the many international agreements that the EU concludes and therefore cause the third countries negotiating those agreements uncertainty. We were also concerned that the Government’s approach could be counterproductive to our interests in the EU and could possibly undermine our good standing and our reputation with our partners.

In essence, the main issue that we wished to resolve was whether the opt-in protocol could be applied when the Government alone, unilaterally, considered that a proposal for EU legislation contained justice and home affairs content or whether a formal justice and home affairs legal base, under Title V of the Treaty on the Functioning of the European Union, had to be cited.

While we were concentrating on this very specific aspect of government policy, we noted—and our report makes this clear in chapter 2—that,

“the opt-in Protocol has provided the UK with a very effective safeguard against participating in legislation with a legal base in Title V, particularly internal EU legislation”.

This fact is clearly demonstrated when you look closely at the Government’s annual opt-in reports, but it was not mentioned at all in the Government’s evidence to the inquiry, which is why I stress it here today.

I should also add that the recent balance of competences review undertaken by the outgoing Government does not seem to suggest that, in justice and home affairs with the opt-in and opt-out processes that are available to them, the Government have had any particular difficulties in safeguarding their position on these issues. Overall, from the Government’s point of view, the system seems to have worked satisfactorily—perhaps the Minister can confirm this in his reply—whereas so often the general impression seems to be given that the EU is somehow constantly a threat in this area of policy and has to be constantly resisted.

Before I turn to the substance of our conclusions, however, let me mention our concern with the Government’s way of co-operating—if that is the right word—with our inquiry. Four months elapsed from the launch of the inquiry until the Government submitted written evidence and confirmed their willingness to attend to give evidence. By that time, all our other witnesses had given evidence and we were contemplating having to report without the Government’s own evidence. The Government explained that the delay was caused by a judgment of the Court of Justice of the EU, delivered last June, which they had been considering, but in our view that judgment, although complex, did not justify such a long delay in the Government’s co-operation with the inquiry. We stated as much in the introduction to our report, and we hope that similar delays will not occur in future Select Committee inquiries of this House.

It is also disappointing, of course, that we have not had the Government’s formal response to this report today. It would, I am sure, have better informed our debate. After all, our report was published on 24 March and the Government are normally obliged to respond within two months. Obviously, we had a general election, which meant that purdah was in place, but in accordance with this an extension for a response was given until 22 June, yet we learn that the Government are still considering their response. I would like to hear from the Minister today whether he has a firm date for the formal response to be sent to us. Even though time is fast running out, can we be assured that this will be before the parliamentary Recess next week?

I now turn briefly to summarise the committee’s conclusions under our chapter headings. In chapter 3, we looked at the meaning to be given to “pursuant to” in Articles 1 and 2 of the opt-in protocol. None of the expert evidence we received in the course of the inquiry supported the Government’s broad interpretation of “pursuant to” in that protocol. We felt that this was significant in itself and we noted in particular that the Republic of Ireland did not follow the UK’s practice of applying the opt-in protocol in the absence of a Title V legal base. We agreed with all our witnesses that a legal base was also necessary to define the source of the EU’s power to act and that this was consistent with the principle of conferral. We therefore concluded that the phrase “pursuant to” had an accepted legal meaning and that in the context of the opt-in protocol it meant that the Title V legal base was required before the opt-in could apply.

We also felt that the Government’s very broad interpretation of “pursuant to”, of the merits of which they tried to persuade the Court of Justice, would actually give the EU wide powers to increase its competence in many other policy fields where it is mentioned in EU treaties. We queried whether this was a consequence the Government wanted. It certainly seemed to us to be potentially counterproductive—a word I mentioned earlier.

In chapter 4, we looked at the issue of determining the legal base of an EU measure with JHA content. Again, all the evidence we received here contradicted the Government’s approach to determining the legal base of a measure with JHA content. We accepted the weight of that evidence and concluded, as a consequence, that the Government’s distinction between whole, partial and incidental JHA measures was misconceived and that the Government should reconsider their approach.

In chapter 5, we looked at the issues of legal certainty and loyal co-operation in the negotiation of international agreements with JHA content. While we accepted that there is a distinction between actual and potential legal uncertainty, we concluded, none the less, that the potential for the Government’s policy to create real legal uncertainty was considerable. We concluded, too, from our point of view in terms of parliamentary scrutiny, that the Government’s approach creates legal uncertainty around parliamentary scrutiny, as the two examples we gave in the introduction to the report showed. These two examples related to the fourth money laundering directive, an important measure, and Kosovan participation in EU funding projects.

We were concerned that the Government’s unilateral interpretation raised questions about their acceptance of the uniform application of EU law. We were therefore also concerned about what impact that might have on the UK’s reputation among other member states. Finally in this section, we concluded that the Government’s policy puts them at risk of breaching the duty of sincere co-operation, under which member states have a duty to co-operate strongly with European Union institutions in the negotiation and implementation of international agreements.

In chapter 6, we looked at how the opt-in protocol had been interpreted by the EU institutions, because the Government put it to us that they believed that the Commission had actively pursued a policy of “legal base shopping”, in order to undermine the UK’s opt-in rights, which was a serious charge to make. Certainly, in one specific case they provided evidence that lent some support to this allegation in respect of the former Commission, and perhaps in particular a former Commissioner. However, it must be said that in this particular case the European Council of Ministers, quite rightly, supported the UK’s point of view, and the UK in the Council was able to overturn the proposal for the legal base that the Commission had made, pointing out that it is related to the substance of a measure and cannot be related to whether that measure might have a certain geographical coverage or not. However, despite that exception, which the Government had drawn to our attention, we concluded that there was no persuasive evidence at all to suggest that the Commission had circumvented systematically the UK’s opt-in rights.

In chapters 7 and 8, we looked at the case law of the European Court of Justice and the Government’s litigation strategy. While we recognise the Government’s concerns, again we concluded that there was no evidence to suggest that the court for its part had sought deliberately to undermine the safeguards in the opt-in protocol. We concluded that it was highly unlikely that the court will change its established approach to determining legal bases, including for measures with JHA content, as the Government suggested it might, and we therefore recommended that the Government review their litigation strategy in the light of these conclusions.

Rather than just criticising the Government’s strategy, we also made one suggestion, that if they wanted to raise these concerns with their partners, they could consider the feasibility of an inter-institutional agreement on the scope of Title V. I would be interested to know whether the Minister feels able to respond today to that suggestion made in the report.

In conclusion, and in looking forward to hearing what other noble Lords may say on this matter, I will say that the sub-committee’s report was strongly endorsed by the EU Committee of this House and, therefore, comes here with all-party and non-party approval. I thank very much all colleagues who contributed to the inquiry, in particular my former colleagues on the EU Justice Sub-Committee, with whom it was a pleasure to work.

We believe that it is essential that the Government carefully consider the evidence which the inquiry received and which casts doubt on the legality of the Government’s policy. While the formal response to the report is still awaited, I none the less hope that the Minister can give us some reassurance here today. I beg to move.

My Lords, I thank my noble friend Lady Quin for the way in which she chaired this committee. It was done with skill, charm, and to great effect. I also thank the clerks to the committee, who performed with their usual skill, as did our legal advisers, who in this particular case were absolutely essential.

I am delighted to see the noble Lord, Lord Faulks, here. As a former practitioner, with many years at the Old Bailey, may I say how much I have admired, watching him in this House over the years, the charm and skill with which he advocates some of the worst causes it is possible to devise? Professionally, therefore, I am delighted to see him here.

This is an extraordinary debate. First, I have never known a report which, frankly, was quite so universally critical of the Government’s legal position. Usually, in an issue which involves disputes of this sort, you find somebody, somewhere, who is prepared to stand up and say, “Yes, I think the Government are right”. In this case, we could not find anybody who was prepared to do that. Secondly, I think this is the first time I have ever taken part in a debate on a report of one of your Lordships’ Select Committees in the absence of a response to that report from the Government.

As I understand it, a number of deadlines were passed and it was felt that this debate had to proceed. Quite why there has been no response is as yet unclear. If it means that the Government are actively and seriously reconsidering their current position, that is to the good and this debate is perhaps premature. If not, why has there been such an inordinate delay? This is offensive to the committee and contemptuous to the House. As my noble friend Lady Quin said, we waited a long time to receive the Government’s evidence to the committee. When it came, it was negative and sparse.

As I see it, there are three issues that ought to be considered here: first, whether the Government’s view as to the effect of the protocol is accurate, and particularly whether their interpretation of the words “pursuant to” is right; secondly, the effect of the recent judgments of the European Court of Justice and whether that case law is undermining the scope of the opt-in protocol; and, thirdly, whether there is any evidence that the Commission has deliberately tried to subvert the scope of the opt-in itself.

I will deal with these three issues separately. I think it is worth while to begin at the beginning; namely, with the terms of the treaty itself. Under the terms of the Lisbon treaty, the UK was given an opt-in protocol to replace its loss of the right to veto. That protocol allows the UK not to participate in justice and home affairs legislation. A recital to the protocol explains that it is intended to,

“settle certain questions relating to the United Kingdom and Ireland”.

The relevant articles of the protocol read as follows. Article 1 provides that the UK,

“shall not take part in the adoption by the Council of proposed measures pursuant to”—

I emphasise those words because they will become extremely important—

“Title V of Part Three of the Treaty on the Functioning of the European Union”.

As a consequence, Article 2 establishes that,

“no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States”.

I do not think I need to read the rest of the article.

This dispute has arisen because of the Government’s interpretation of “pursuant to”. In their written evidence, the Government said—and this is the nub of the argument—that Articles 1 and 2 of the opt-in protocol,

“are not restricted to provisions in agreements concluded under a Title V legal base, but to those adopted or concluded ‘pursuant to’ Title V. This is a broader test which, in the Government’s view, extends to any provision in an international agreement that contains content where the EU competence for negotiating, signature and conclusion of that agreement flows from Title V of the Treaty on the Functioning of the European Union or TFEU, that is, JHA content”.

It is in respect of that issue that we heard a number of witnesses.

The clerks of the committee made efforts to find lawyers who actually agreed with the Government’s position on this. They failed. I have never known a body of evidence from a number of distinguished witnesses which was so definitively in the same direction. They were asked whether they thought the Government’s interpretation of “pursuant to” was legally reasonable. None did. Professors Peers, Chalmers and Barrett were unanimous in their view. Professor Peers said the Government’s interpretation was “unconvincing”. Professor Chalmers concluded that it was “particularly challenging”. Professor Barrett thought it was a “singularly unlikely interpretation”. Dr Bradshaw concluded that “pursuant to” should be interpreted as “requiring a legal basis”. Professor Cremona thought the Government’s approach was “misconceived, legally speaking”.

The only body that advocated the Government’s interpretation were the Government themselves. No academic, no Government, no institution supported them. It is worth pointing out, as my noble friend already has, that Ireland, the other beneficiary of this opt-out procedure, has declined to follow the Government in their stance. It has not argued for a similar definition of “pursuant to”; I do not think it has even raised it.

It seems to me that the ordinary meaning of the expression “pursuant to” is more than an alternative way of expressing “following upon”. It requires, as our evidence says, a direct link with the parent measure. As was pointed out by Professor Peers, if the drafters of the protocol had intended the broad notion of the words advocated by the Government, they would have made it clear with different wording. Professor Cremona thought that the French version, “en application de ce titre”, and the Italian version, “a norma di detto titolo”, clearly expressed the concept of being based on or adopted according to that title.

This view is fortified by the fact that “pursuant to” appears in no less than 99 places in the EU treaties, protocols and declarations. The Government apparently take the view that the words should be interpreted in relation to the context in which they appear. Since this could lead, potentially, to 99 different versions of what the phrase means, it seems to me that that approach is somewhat fanciful. The Minister was a distinguished legal practitioner and will know that, if the words are clear, they should be given the same interpretation wherever they appear.

The committee therefore concluded that it was unpersuaded by the Government’s interpretation of “pursuant to” and found the argument that “pursuant to” in the opt-in protocol should be interpreted differently from elsewhere in the treaty equally unconvincing. The committee therefore called on the Government to reconsider their interpretation. That is the nub of the dispute that the committee had with the Government, although there were other issues, which I have briefly touched on.

I can deal with the remaining two issues that I raised rather more shortly. In chapter 7 of the report, the committee analysed six recent Court of Justice judgments. It also had the benefit of the opinion of the expert witnesses on Title V case law. It concluded in accordance with that evidence that the court’s approach to determining the legal base in the six cases we analysed did not differ from established case law and that the Government’s view that those cases do not have an impact on their opt-in policy lacks credibility. The committee thought that they clearly did.

In the course of the evidence, we heard rumours, particularly from the then Lord Chancellor, Mr Grayling, that the Commission in its choice of legal base was actively trying to subvert the opt-in. However, when the evidence was produced, it was less than convincing. The committee concluded that,

“the Government’s letter of 21 January provided no persuasive evidence of Commission circumvention of the UK’s opt-in rights. There is certainly no evidence to support any allegation that such circumvention is systemic”.

In only one case—the draft PIF directive—did the Government, in the committee’s view, provide some evidence that lent some support to this allegation. We should not forget that in that specific case the Government appealed to the Council, the Council agreed with the Government, and the legal base was changed to Title V.

To sum up the situation, it seems to me that the Government have just got it wrong. I am not wholly convinced that the advice given to the Government by their legal advisers was designed to express their view of what the law really is. When I joined the Foreign Office many years ago, I was told that the function of government legal advisers was not to tell me what the law was, but to tell me what legal arguments were available for me to use to justify the policies that I wanted to pursue. There is nothing wrong in that, except that it deserves to be recognised for what it is. The Government’s lawyers have indeed produced some arguments. I do not find them convincing, and nor did the committee. I hope the Government will change their position. They certainly should.

My Lords, it is a privilege to take part in this debate. I did not have the pleasure of serving under the noble Baroness, Lady Quin. I am a new member of the Justice Sub-Committee under the chairmanship of the noble Baroness, Lady Kennedy of The Shaws, and I look forward very much to continuing to work on that committee. I spent 15 years in the European Parliament on the relevant committee dealing with justice and home affairs issues. In the five years between the Lisbon treaty coming into force and my stepping down, involuntarily, from the European Parliament, I became very familiar with the exercise of the opt-in under the protocol, and indeed with the whole exercise of the block opt-out, which we will no doubt discuss in the next debate.

As I listened to the noble Lord, Lord Richard, in particular, I could not help trying to suppress a giggle as I thought that this would make a very good satirical sketch. However, the serious point is that the Government are creating a great deal of confusion and legal uncertainty, first, for this House and the other place over the correct parliamentary procedures that should apply to this area. The scenario that we seem to have is that the Government decide after the three-month window, “Oops, we’ve discovered some microscopic JHA element very late in the day—too late to let you guys know that the opt-in enhanced scrutiny procedure applies”. We had a letter dated 3 June 2014 from the Justice Secretary and Home Secretary saying breezily that,

“there may be occasions where the Government fails to recognise JHA content in an EU proposal at the outset. We are endeavouring to keep these occasions to a minimum by raising the profile of JHA content in otherwise non-JHA dossiers across Whitehall”.

There are two possible reactions to that. One is that it cannot be very significant if it is not easily spotted, so why are the Government bothering about it? The second is: get your act together a bit earlier and check what is actually in the proposal.

The second, and perhaps more important, area where confusion and legal uncertainty will be created is with the EU institutions, with the other 27 Governments and with our international partners. That is brought out very well in paragraph 91 of the report, which says that the uncertainty about when and whether Protocol 21 applies is,

“particularly problematic in the context of international agreements, as it would mean that third countries might be unable to assess, when they conclude an agreement with the European Union, to what extent the Union assumes liability with respect to the United Kingdom. This will ultimately affect the correct implementation of the pacta sunt servanda principle, a cornerstone of international law”.

So we have the situation where the Government say, “We think there is JHA content but we didn’t manage to secure a Title V legal base. None the less, we don’t regard the UK as bound by the JHA element”. To say that this is “not an ideal outcome”, as the Government did in a letter of 3 April 2014, is an understatement of the highest order, but of course they assert that the situation did not give rise to legal uncertainty—we just put a statement in the Council minutes and everything is hunky-dory.

It seems to me that, to use a popular phrase or saying, this is no way to run a whelk-stall. There are serious implications for the rule of law, for the uniformity of the EU legal order and for the confidence that our partners, both European and international, can have in our dependability. I cannot see any possible advantage for a country that this year has celebrated 800 years of Magna Carta and the rule of law, which has one of the most admired legal systems in the world and which surely trades on the rule of law probably as much as any other country in the world—indeed, it relies on the rule of law and on everyone else meeting it.

Perhaps I am being rather party political, but the idea that there is a conspiracy against us seems to sum up everything that is wrong with a Conservative-dominated or Conservative-only Government’s attitude to the European Union—“They are out to get us”. Of course it is fair enough to be vigilant and ensure the correct application of the treaties. That in itself is an application of the rule of law. There may be cases where the Commission tries to push the envelope, more out of a sense of, “Well, the Commission would, wouldn’t it?”, because that is the institutional way of trying to ensure that the EU competence is at its maximum, but as the noble Lord, Lord Richard, said, the way to push back against that is to use political and legal arguments with the Council and the Parliament and eventually, if necessary, with the court. Various examples of this have been cited, such as the PIF directive and the road traffic offences directive, where both the Council and the Parliament were convinced that, because of the criminal law element, a Title V legal basis was needed.

Indeed, a current example can be found in the proposed arrangements for Greece, where the Commission is apparently trying to use funds from the European financial stability mechanism, on which I am far from an expert, as bridging finance. That would bring in the UK. The Chancellor may well be right to say, “No, it was agreed in 2010 or 2012 that the UK would not be outvoted in the use of those funds”. In certain circumstances it is perfectly right to use political and legal arguments to make sure that the UK’s legal rights are protected.

Secondly, there seems be an attitude that we find reasons to stay out of projects and be isolated, instead of finding reasons, within the proper framework, to contribute and be seen as a source of positive energy rather than always adopting a negative attitude.

Thirdly, there seems to be so much nitpicking on this matter—arguing for the sake of it. I cite the arguments about the phrase “pursuant to” as a classic example of this. The committee brought this out very well on the money laundering directive. You really could not make it up, but the Government were,

“considering challenging the legal basis of a measure it strongly supports solely to preserve its position on the application of Title V”.

That is the definition of shooting yourself in the foot.

Fourthly, this is the complete opposite of winning friends and influencing and shaping EU policies. I feel strongly that justice, like security and law enforcement, is an area where the UK has a big contribution to make. While respecting all our legal rights, it does us no credit whatever to act in this capricious way.

I wish that the last but one Government, the Labour Government, had never negotiated the opt-in protocol in 2007. I personally believe that we could have relied on our political heft and the emergency brake mechanism, but we are where we are, and since we have to operate it, let us at least work in a spirit of sincere co-operation—not subjugation to Brussels, but as a reliable and dependable member state.

My Lords, first, I thank the members of the committee for their excellent report, which should give much food for thought for the Government and for the Home Secretary in particular. I pay tribute to the mover of today’s debate, my noble friend Lady Quin, as the former chair of the EU sub-committee on justice. Her stewardship as chair shone brightly, if all too briefly. My noble friend Lady Kennedy of The Shaws has a challenge to follow in her footsteps.

Unlike the noble Baroness, Lady Ludford, we on these Benches support the concept of an opt-in. Indeed, it first came about under a Labour Government. Opt-ins can offer important guarantees and safeguards on key measures. We believe in retaining our co-operation with Europe on policing and criminal justice. Indeed, we agree with the committee when it says:

“The Government’s annual opt-in reports demonstrate that the opt-in Protocol has provided the UK with a very effective safeguard against participating in legislation with a legal base in Title V, particularly internal EU legislation, when it does not consider it to be in the national interest to do so”.

It nevertheless seems that the opt-ins and their processes are being misused. We can only conclude that they are being misused deliberately.

We on these Benches and the Benches of my opposition colleagues in the other place have repeatedly criticised the Government for their approach and the way they have dealt with opt-ins, putting party interest above national interest and creating confusion. In many cases, the Government seem to try to tell their Back-Benchers and supporters that they are the awkward squad in EU negotiations, yet they know that they need the co-operation of other EU countries in pursuit of justice.

Perhaps the most obvious example of this was the Government’s handling of the European arrest warrant in the other place at the end of the last Session. This was quite spectacularly mishandled. The one issue that everybody wanted to talk about was not in the Motion before the House, but many rather anodyne measures were.

That brings me neatly on to the direct matter at hand—the report of the committee. It should make pretty uncomfortable reading for the Minister and his boss. It is pretty clear that the Government have a completely perverse approach to the whole process. At the heart of the issue is whether the opt-in protocol can be interpreted to mean that it is the content of an EU measure which determines the application of the protocol rather than a legal base under the JHA title of the Treaty on the Functioning of the European Union—Title V. In responding to this point, the committee said:

“All the evidence we received contradicted the Government’s approach to determining the legal base of a measure with JHA content”.

It went on to say:

“Its effect is to make a clearly established legal principle inordinately complex”.

It is clear that it is the latter principle that should be applied, but the Government’s mess with their party’s substantial anti-EU base means they are constantly trying to please the unpleasable. Yet we know on these Benches that there are good Ministers and officials who are trying to make sensible progress on negotiations. It really is a mess. I fear that the small majority the Government enjoy in the other place may make these matters worse rather than better. This muddle has direct consequences, as the committee’s report says, in that it gives rise to legal uncertainty and,

“risks breaching the EU legal duty of ‘sincere cooperation’”.

It appears that the Government have been trying to blame others, namely the Commission, for some of their woes. Yet this report makes it clear that there is no evidence of any underhand activity by the Commission; nor does it find evidence that the Court of Justice of the European Union has,

“sought deliberately to undermine the safeguards in the opt-in Protocol”.

The report then suggests the Government review their litigation strategy.

The tail continues to wag the dog. Only yesterday, I heard that the Minister’s colleague, the Europe Minister David Lidington MP, had dismissed claims that UK was seeking working rights opt-outs in the EU renegotiation as “rumour and chatter”. That is not much of a denial.

The way in which the Government have approached the protocol is a scandal. It does not seem that they have behaved much better in their relationship with the committee, and it is totally wrong that they have not yet responded to it formally. Can the Minister tell us when the Government plan formally to respond to the committee’s report? I look forward to the Minister giving some indication of their response to the stinging criticisms that have been made.

In summary, it seems a great shame that the Government are subverting and confusing a straightforward process for EU opt-ins. We see this as being only for reasons of political management within their own party—and for a group that will never be satisfied. Is it not time that they simply did the right thing, accepted the recommendations in this report and embraced the very real power that they have in respect of EU opt-ins to protect our national interests?

My Lords, I begin by thanking the noble Baroness for securing this debate. I thank her for her very clear and elegant opening of the debate, and indeed I thank all noble Lords who have participated in it. Protocol 21 plays an important role in protecting the United Kingdom’s interests in Europe. I pay tribute to the noble Baroness and her committee for the comprehensive work that she undertook as part of the inquiry into how the Government have applied it.

Before I try to respond to the various points made in the debate, perhaps I may say something about the protocol and its significance. I appreciate from the debate that there is not unanimity about the desirability of the protocol in the first instance—a difference between the Liberal Democrat position and—

I apologise for interrupting, but I want to make it clear that I was expressing a personal opinion.

I am grateful for that clarification—a difference between the view expressed by the noble Baroness, Lady Ludford, and that expressed on the part of the Labour Party by the noble Lord, Lord Tunnicliffe.

The United Kingdom’s and Ireland’s justice and home affairs opt-in has been in existence for civil justice, asylum and immigration measures since 1997. It was extended to policing and criminal matters with the Lisbon treaty, which came into force in 2009. The intention was to allow the United Kingdom to protect its specific interests, such as the common law legal system and border controls, while retaining the ability to take part in EU justice and home affairs measures where that was in the national interest.

The noble Baroness, Lady Quin, asked whether the JHA opt-in has proved an effective safeguard. I note that her committee expressed no view as to its desirability—expressly so—but she posed that question and asked whether it was an important or even an essential safeguard. I can tell the Committee that it has been used on numerous occasions to protect the United Kingdom from being required to participate in measures which might adversely affect our border controls or our fundamental legal principles. However, the debate with which we are concerned is essentially about the scope rather than the utility of Protocol 21.

The areas covered by Title V of Part Three of the treaty include some of the most sensitive for us as a nation: immigration and border controls, policing and criminal law. The United Kingdom also retains an ability to opt out of measures that build on the Schengen acquis. The UK takes part in police co-operation and judicial co-operation aspects of Schengen but does not participate in any aspects of the acquis relating to border controls. The Government have not applied to join the Schengen provisions on visas and border controls and have no intention of doing so. Any such move by a future Government will require a referendum, thanks to the 2011 Act. I know that that measure was opposed during its progress through this House, but I now understand that it is part of Labour Party policy that there should be a referendum in those circumstances. I shall not go into more detail on the Schengen opt-out, as that has not been the focus of today’s debate.

Protocol 21 was included in the treaties to make sure that any new proposal that was presented “pursuant to” Title V would not bind the United Kingdom unless it chose to be so bound. However, it is the Government’s view that the drafting of the treaty has created a lack of agreement about when the United Kingdom is able to exercise these rights—whether it is necessary for there to be a Title V legal base cited on the face of a proposal or whether it is where the EU’s competence to act flows from Title V, regardless of the legal base cited.

The noble Lord, Lord Richard, rightly focused on “pursuant to” and what he said was a pretty unambiguous interpretation of those words. Of course, the treaty could have said “under” rather than “pursuant to”. As he and the Committee will know, in the government lawyers’ view, “pursuant to” is capable of interpretation rather more broadly than many, or even most, of the academic lawyers who were called before the committee said.

I recognise that the approach of the previous Government—I know that the noble Baroness, Lady Ludford, distanced herself from the previous Government, although it was a coalition Government—is not shared by others, and that it created some challenges. But it is important to recognise that we do not have a definitive legal view on which interpretation is correct. While I accept that the European Court of Justice has taken some decisions on what is or is not JHA content, it has not set out definitively whether the opt-in applies in the absence of a legal base. Unless and until it does, the Government and others must work according to their interpretation of the treaty. I respectfully suggest that describing the Government’s approach as capricious is a little harsh.

The report on which today’s debate has centred helpfully sets out some of the issues flowing from this lack of agreement. These can be very complex and challenging, and the Government must decide on the basis of the evidence before them—

Before the Minister leaves “pursuant to”, if he looks at the French version—“en application de ce titre”—it is impossible to claim that those words mean merely “following on from” without a definitive link. It is quite clear that the French text, which I imagine expresses the substance of the argument, refers to the application of Title V. In those circumstances, how can he claim that “pursuant to” means something totally different?

The French and German interpretations are also referred to in the committee’s report. Of course, the protocol has to be read as a whole on what its intention was. While I do not want to weary the Committee with the evidence that was given by government lawyers, the noble Lord will recall, no doubt, the fact that Article 1 should be read in the context of Articles 2 and 3. Indeed, I remind him of what John Ward said in his evidence to the committee, when the then Secretary of State for Justice and the Home Secretary gave evidence. He said, in answer to a question from the noble Lord, Lord Elystan-Morgan, that,

“I think it is important that the words ‘pursuant to’ need to be read in the context of Protocol 21. Protocol 21, we say, is different because of the particularly sensitive nature of justice and home affairs matters. But it is clear, looking at the context of the rest of the treaty, that it is fully recognised that justice and home affairs matters are difficult and sensitive, which helps to interpret Protocol 21”.

I would like to pursue this further. The phrase “pursuant to”, which my noble friend Lord Richard referred to, generally has an accepted meaning, both in English and in the other language versions, which applies throughout EU legislation, and it is simply the Government who have one view and everyone else has another view. Is that not the case?

Of course, I do not dispute the evidence that the committee heard. The argument that was used in the course of the questioning by the noble Lord, Lord Elystan-Morgan, was that we should be looking at the natural, ordinary meaning, which is the traditional way of interpreting a statute in British law. A purposive interpretation would admit a rather broader interpretation of what the protocol was intended to achieve in terms of the opt-in and opt-out.

These are deep legal waters, and we could spend a great deal of time debating this. I accept that the preponderance of legal opinion was against the government interpretation, but I respectfully refer the Committee to the fact some of the difficulties were acknowledged by the committee in the course of its evidence—not, I accept, specifically to deal with the “pursuant to” aspect, but to do with the choice of legal basis. Paragraph 119 of the committee’s report states:

“Dr Bradshaw said that the Law Society had no insight into the Commission’s thinking, but noted that the choice of legal basis was ‘a matter of profound disagreement on occasion, not just between the EU institutions and the member states, but also within and among the EU institutions’”.

Indeed, the conclusions of the committee at paragraphs 184 and 185 were:

“We agree with witnesses who have suggested that the CJEU’s approach to determining the legal base of international agreements means that the complexity of an agreement is not always reflected in the resulting choice: it renders somewhat invisible the ancillary or secondary objective, including ancillary or secondary JHA objectives. We understand why this would cause concern to the Government”.

I was going to do that very thing.

“Nevertheless, this does not, in our view, amount to a deliberate undermining of the safeguards in the opt-in Protocol. We note that for internal EU measures on JHA policy, the opt-in Protocol is a very effective safeguard for the UK”.

I note that in the course of the debate there has been a very firm disavowal that there was any deliberate intention by the Commission to, as it were, get round the Title V question, but there is an acknowledgement that it may not always be easy to choose the correct title.

The most recent annual report on the application of the JHA opt-in and the Schengen opt-out, which was published in February 2015, shows that the previous Government took 33 decisions under the two protocols during the period between December 2013 and the end of November 2014. Thirty-one of them were taken under the JHA opt-in. Of those 31 decisions, 18 applied to proposals which did not cite a Title V JHA legal base. They included a directive on customs infringements and sanctions, a decision establishing a European platform to enhance co-operation in the prevention and deterrence of undeclared work and several third-country agreements which created legal obligations in the JHA field.

These are all examples of legislation with a JHA impact on the UK that did not cite a Title V legal base. If unsuccessful in changing the legal base, these are the types of cases where a change of approach might mean that the UK cannot exercise its right not to be bound.

The Government are committed to considering carefully any changes to their approach to the opt-in to ensure that we can lawfully exercise the UK’s right under the treaty to protect our national interests by retaining control of our policing, justice and immigration systems. The committee’s detailed report has given the Government a great deal to consider. We do not believe it is in anyone’s interest to rush the process of responding to it, although of course I take on board the criticism that has been made of the delays.

The Government have sought to ensure that the committee and Parliament are kept updated and sighted on developments in individual cases and the policy as a whole. As was acknowledged in the debate, the Justice Secretary and the Home Secretary wrote recently to the committee to let it know that this subject is still under consideration and that the Government would provide a response to the committee shortly. That raises the question of what “shortly” means. I am afraid that the answer is that it will not be until after the Recess. I know that there has been regret about that, but it is important that the content of this detailed report, and indeed of the debate, are fully taken on board by the new Government.

The noble Baroness asked about one particular issue which also forms part of the conclusions—whether we should be thinking of an inter-institutional agreement. I think the noble Lord, Lord Dykes, asked questions about that in the course of the evidence. It is something that will certainly be considered. When the Government have concluded our consideration of the policy as a whole we will take forward such engagement as is appropriate.

The issues relating to the protocol are complex and technical, and go, as I am sure the Committee will accept, to issues of sovereignty in the very sensitive areas that JHA co-operation deals with—policing, criminal and civil law, and immigration and asylum. As the noble Lord, Lord Tunnicliffe, said, the JHA opt-in is extremely important to us.

We note what has been suggested about the litigation strategy. That is something that will be taken very carefully into account.

The Government are concerned, of course, to reflect the protection that the opt-in gives the United Kingdom on these important areas. We will consider carefully our approach to that. The process is not yet complete and we believe, as I have indicated, that we should take time to get it right.

The debate as to the proper approach and whether it should vary from that taken by the coalition Government will be influenced very much by the careful consideration by the committee and the evidence that it called for, which is well summarised by the report. I am grateful for all the contributions to this debate.

Before the Minister sits down, I want to clarify that, although he said that I distanced myself from the previous Government, I did not. I distanced myself only from the attitude exemplified in the report. I am, in fact, very proud of the heavy lifting done, in particular, by the former deputy Prime Minister which ensured that the UK stayed in the 35 policing and criminal justice measures. It is no secret that there was disagreement between the coalition partners on these matters. While I am at it, let me say that I was expressing a personal view on Protocol 21, but that does not, of course, extend to the Schengen protocol, which governs border issues.

I am not going to go into the detail of who was or was not in favour of particular matters that were opted into or opted out of. The noble Baroness referred in the course of her speech to the rule of law, Magna Carta and “pacta sunt servanda”. I assure her that this Government take the rule of law and the desirability of honouring agreements extremely seriously. The commitment of this Government to those remains extremely profound.

My Lords, even though this has not been a long debate with many speakers, it has been a high-quality debate with many powerful points made. I am very grateful to my noble friends and to the noble Baroness, Lady Ludford, for all the words they have said in support of the work of the committee and of its report. I echo strongly the words of my noble friend Lord Richard about the excellent work that the clerks of the committee did. In my experience they worked assiduously and are immensely able. They certainly guided me, as a non-lawyer, through some complex legal territory which might have become a legal quagmire without their assistance.

I also thank the Minister for the manner in which he responded. His defence of the Government’s policy as it has evolved so far did not elicit much support from those who spoke in the debate, but I hope that in the Government’s consideration of this matter—which, given the long delay, I hope will be very serious—will take on board the points the committee made. Although I am no longer chair of the sub-committee and no longer a member of the EU Select Committee, I have a feeling that this subject will not go away as long as the Government persist in following this approach. I say that to the Minister in the hope that I may convince him and his colleagues to look more favourably on the report’s recommendations than we think may be the case at the present time. Having said that, I once again thank all those who have taken part in this debate.

Motion agreed.