Lord Taylor of Holbeach
To move that the Grand Committee takes note of the report to Parliament on the application of Protocols 19 and 21 to the Treaty on European Union and the Treaty on the Functioning of the European Union in relation to EU justice and home affairs matters (Cm 8541).
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, the previous Administration made a commitment to table a report each year on the operation of the JHA opt-in protocol. The Government agreed to maintain that pledge and have ensured that such reports cover not only decisions taken under the JHA opt-in but also those taken under the Schengen opt-out protocol. The Government have since published three such reports. The most recent of these, which is the subject of this debate, was published on 25 April this year. It covers opt-in decisions taken between 1 December 2011 and 30 November 2012.
I apologise that the annual report was later than usual this year. We aim for publication in January, but opt-in decisions included in the annual report fall to a wide range of government departments. The late publication of this year’s report was due to a delay in finalising data from across Whitehall. We regret this delay and will aim to ensure that the next annual report is published promptly.
During the period of the latest annual report, the Government took 35 decisions on UK participation in EU justice and home affairs proposals. Under the JHA opt-in protocol we opted in to 24 proposals and did not opt in to eight. The Government took three decisions under the Schengen protocol, choosing to remain bound in each case.
As the Committee will be aware, the Government have stated that we will take opt-in decisions on a case-by-case basis. We consider factors such as the impact of the measure 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 is a commitment to focus on the national interest. As such, we will only opt in where we believe it is in the UK’s interests to do so. Examples of proposals where we judged UK participation was in the national interest were the EU-US passenger name records agreement and a directive on data protection. Both of these agreements promise to assist law enforcement authorities in combating serious crime, while including all the necessary data protection safeguards.
Conversely, the Government decided not to opt in to a proposed directive on the freezing and confiscation of proceeds of crime. While we were sympathetic with the aims of this proposal, we had concerns that the published text posed risks to the UK’s domestic non-conviction-based confiscation regime, and therefore felt that it was too risky to opt in prior to negotiations, given that we would then be bound by the final text, once adopted. The Government also decided not to participate in the internal security fund regulation due to concerns over value for money. Despite our decisions in these latter cases, I note that the Government have taken an active role in both of these negotiations and will consider participation post-adoption should our negotiating objectives be met.
The Government have been clear that we want Parliament to play an important role. For this reason, we have further strengthened the role of Parliament in scrutinising opt-in decisions. My noble friend Lord Howell of Guildford’s Written Ministerial Statement of 21 January 2011 pledged to give Parliament as much opportunity as possible to comment on and influence future opt-in decisions. Under these new arrangements, we have committed to the setting aside of government time for a debate on opt-in decisions where there is a particularly strong parliamentary interest. The Government must also now report each opt-in decision to Parliament by a Written or, where appropriate, an oral Ministerial Statement. This procedure is now well practised.
The commitments included in that Statement, to give Parliament more of a say in opt-in decisions, are something which the Government take very seriously. I emphasise to the Grand Committee that we are keenly aware of the essential need to make these new arrangements work on a practical level. To this end, noble Lords will be aware that following extensive consultation with interested parties, including our own European Union Committee, the Government have recently finalised an internal code of practice. Through the code we hope to reach and maintain a consistently high standard across government in respect of handling the parliamentary scrutiny aspects of future opt-in decisions.
I do not plan to dwell on more recent opt-in decisions today because they will be covered by the next annual report to be published early next year, and before then in our six-monthly update to the European Union Committee. However, I note that since 30 November 2012, the Government have taken a further 10 decisions under the JHA opt-in protocol, opting in on seven occasions. No decisions were taken under the Schengen protocol during the period.
I hope that this is a good introduction to the background of the report we have presented to Parliament. I commend it to the Grand Committee and I beg to move.
Lord Taylor of Holbeach
My Lords, this has been a good debate. I would love to be able to amaze the noble Lord, Lord Rosser. I will do my best, but he is quite right in assuming that some of the questions are quite detailed. However, I am becoming more informed every minute, as the noble Lord can see, which is a very helpful support. I think that the noble Lord and I start off as relative novices in this esoteric part of the Home Office brief. We bow to the expertise to which we have had the opportunity of listening. However, I have found in the briefings which I have had that this is a fascinating and important area of government with real effects on how the Government operate and on the lives of the citizens of our country.
I am delighted that my noble friend Lord Taverne takes the view that our approach of being pragmatic and looking at issues on their merits is the right one. That is certainly true, and I have been impressed by the rigour with which this process has been pursued by the Government.
The Government are fully committed to engaging with Parliament on European Union issues and on the opt-in in particular. As such, the debate has been useful. Indeed, as noble Lords have mentioned, this is the second time this week we have considered the implications of this. This is a more general debate; we had a specific debate on Europol on the Floor of the House on Monday. This shows the seriousness with which the Government take these matters. During the period of this report, your Lordships have debated two other decisions on UK participation in EU measures: one on data protection and the other on the confiscation of criminal assets.
I will commence by going through points that noble Lords have made. I am grateful to the noble Baroness, Lady Corston, for her contribution. She started off with a modest reprimand which was reinforced by the noble Lord, Lord Boswell, that we were late. I acknowledge that, but we have plans and do not want this to happen again. We will be providing a report in January. We understand how important that is.
The noble Baroness also rightly asked that the committee be given enough time to consider our proposals. The committee exists to scrutinise, and we want to facilitate that. That is the intention of the code of practice. We are conscious of the time constraints on the committee and, indeed, sometimes on the process in which we are engaged. We will seek to keep the committee informed of what is in development, as well as providing Explanatory Memoranda promptly.
The noble Baroness regretted our decision not to opt in to the justice programme. My noble friend Lord Taverne also expressed concerns about this. We have said that we will consider seeking to opt in after it is agreed, if there is evidence to show that it is worth while. We take note of what the noble Baroness has said and would welcome any further evidence she or interested parties may wish to submit so that my right honourable friend the Justice Secretary can consider it at the appropriate time.
My noble friend Lord Taverne asked what the sums involved are. That issue remains under negotiation. The sums will depend on the nature and outcome of negotiations.
The noble Baroness mentioned the committee’s advice on civil and criminal measures. I completely agree with her about the measure concerning the estate of a deceased person and the directive on access to lawyers. Certainly, there needs to be a cautious approach in both cases because of civil and criminal law. On the question of a common European sales law, I agree it risks causing some legal uncertainly. However, the opt-in does not apply to the measure since it has been brought forward only as an internal market measure not as a justice measure.
My noble friend Lord Taverne wanted more detail on the reasons for the decision not to opt in to the internal security fund. The sums involved are still unclear as discussions on the EU budget remain under negotiation. However, we have committed to review the decision post-adoption and will consult Parliament then. He asked also why the merger of Europol and CEPOL is not a good thing. Noble Lords who were present at the debate on Monday evening will have heard me explain the Government’s position on this measure. We are concerned that by combining the two we are going to dilute the core functions of Europol. We do not believe that is in our interests.
The noble Lord, Lord Boswell, asked what was happening to our mid-year reports. Given this report was presented late, will our mid-year report be late? We plan to send it to the committee this month. We are catching up, and I hope we will continue to be on time in the future. The noble Lord—I keep thinking of him as my noble friend but given his now exalted position I have to reduce my friendship with him as we need to be at arm’s length and it is difficult to do—asked whether the Government’s position on the interpretation of the opt-in had changed. The Government believe that any measure including substantial JHA content triggers the opt-in protocol irrespective of whether it has been categorised as a JHA measure by the EU by, as he says, the citation of a JHA legal base. We often assert that the opt-in applies to measures that are predominantly non-JHA but which include a binding JHA content. That is what is determining policy. The Government have not changed their position in that regard, but it is very important to emphasise that it is the binding JHA content that triggers the opt-in procedure.
The noble Lord also asked about the inaccuracies that had crept into the annual report in the matter of legal bases. There was an administrative error in relation to the correct legal bases. The Secretary of State wrote to the chair to explain that the correct bases for the Turkey social security measure were Articles 289 and 48 TEU and on assurance mediation were Articles 53(1) and 62 TEU.
The noble Lord also asked whether we had ever successfully negotiated a change of legal base. We have done so in the case of a directive on road transport offences, which secured unanimity in the Council to change the transport legal base to a JHA legal base on police co-operation. We did not, in fact, opt into that measure.
As regards further information on the Government’s position on the 2014 opt-out, all noble Lords would like to receive it as quickly as possible. The Government’s position is that we will keep Parliament informed.
The noble Lord, Lord Rosser, asked about the question asked by his noble friend Lady Smith of Basildon in the Europol debate about opt-in decisions pending. I had hoped that the noble Lord would ask about that because I can place this on record and save myself a stamp. Among others, we have opt-in decisions pending on the directive on legal migration, a co-operation agreement with Indonesia, a mandate for an agreement with Cuba, an association agreement with Ukraine, a mandate for an EU-China investment agreement and the Europol decision, as the noble Lord will know. All are being managed within required deadlines.
Talking of the Europol debate, the noble Lord asked which law enforcement agencies say that we should not opt into Europol. The Government are yet to take a decision on the new Europol regulation and in the decision-making process we have been consulting a number of law enforcement colleagues, including the Met police and SOCA, on the options. Given that the decision-making process is ongoing, I cannot give any further detail on that matter.
The noble Lord also asked when the debate will take place. I gave a commitment that Parliament would be informed of the decision and I have little doubt that the debate in the other place will be tabled for consideration before the Recess. We are committed to a debate on the Europol regulation and are seeking to arrange for it to take place before the House rises.
The noble Lord asked about the European surveillance order, which I remember the noble Lord, Lord Hannay, talking about. I asked about that because I could not find any record of it. I think the reference was to the European supervision order, but the noble Lord, Lord Hannay, is normally so reliable, I can understand why the noble Lord, Lord Rosser, followed up on this matter. However, this measure was agreed under the pre-Lisbon arrangements and would fall within the Protocol 36 decision. The Government will determine their approach to implementation when the decision on that protocol has been made.
The final issue on which I have a note here was about the measures in Annexe 1 to our report. Would the Government be forced to leave if we took a block opt-out decision in 2014? I cannot give noble Lords a definitive answer until we have completed our discussions with the Commission on the measures that we would intend to rejoin. We regard the legal thresholds of practical operability and coherence to be a high bar. I hope that I have surprised the noble Lord, Lord Rosser, to some degree but not in absolute terms, and there are some points that I should like to cover in correspondence. I will not have saved a postage stamp, after all.
If we look to the future, it is not possible to say what proposals regarding an opt-in will be brought forward over the remainder of this year. In the report, we have given an indication of what we expect to happen based on work programmes, our knowledge of dossiers which are being considered, those which were carried over from last year and discussions we are having on an ongoing basis with our European partners. The Government have been very clear that we will take opt-in decisions on a case-by-case basis, so noble Lords will understand that it is not appropriate for me to comment on whether we will opt in to any new proposal that might come forward in coming months. I can give a commitment that whatever happens, we hope that the committee will work with us in scrutinising these matters and we will give Parliament as a whole the opportunity to be engaged in this important part of democratic scrutiny of European policy.
We expect a number of EU measures to emerge that will trigger a European opt-in decision. Most significant is the new Eurojust regulation which we expect to be published this month. At the same time, there is likely to be a proposal for a European public prosecutor. We expect that, as with the Europol proposal, the Eurojust opt-in decision will be subject to parliamentary debates in government time. Noble Lords will be aware that the Government have already indicated that we will not participate in the European public prosecutor. We also anticipate the publication of proposals on combating money laundering. After long negotiations, it is possible that an EU-Canada passenger names records agreement will be signed and concluded triggering opt-in decisions. I understand that the Ministry of Justice is anticipating proposals on special safeguards in criminal procedures for vulnerable suspected or accused persons and an initiative regarding legal aid in criminal proceedings. It is also possible that new initiatives on e-justice and the law applicable to contractual and non-contractual obligations will emerge.
Additionally, it is usually the case that we expect a number of further opt-in decisions will fall to other government departments during this period. I assure noble Lords that as the lead government departments on the opt-in the Home Office and the Ministry of Justice are committed to providing advice and assistance to other departments which are grappling with what can be quite a complex policy area.
I look forward to the participation of the European Union Committee and, in particular, the specialist committee headed by the noble Baroness, Lady Corston. Our next annual report covering the period 2012-13 will be laid before the House in January.