EU Police and Criminal Justice Measures: EUC Reports
(10 years, 10 months ago)
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Lord Hannay of Chiswick
That this House takes note of the Reports of the European Union Committee on EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report, Session 2012–13, HL Paper 159) and Follow-up report on EU police and criminal justice measures: The UK’s 2014 opt-out decision (5th Report, Session 2013–14, HL Paper 69).
Lord Hannay of Chiswick (CB)
My Lords, the debate today is unusual in that we are debating two reports, not one: the report of 23 April 2013, EU Police and Criminal Justice Measures: The UK’s 2014 Opt-Out Decision, and a follow-up to that report of 31 October 2013.
It is unusual, too, that these reports were prepared not by one sub-committee of your Lordships’ EU Select Committee but two: the Sub-Committee on Justice, Institutions and Consumer Protection, chaired until May 2013 by the noble Lord, Lord Bowness, and since then by the noble Baroness, Lady Corston; and the Sub-Committee on Home Affairs, Health and Education, which I have the honour to chair. We took all our evidence and prepared both our reports at joint meetings. These reports were agreed by consensus. They reflect the views of Members drawn from all the main party groups represented in this House and from these Cross Benches. I pay tribute to the leadership of the noble Lord, Lord Bowness, and the noble Baroness, Lady Corston, who shared the chairing of these meetings with me, and to all members of the sub-committees who put in many long hours of work dealing with extremely complex material. I am delighted to see that the noble Lord, Lord Jopling, who was my predecessor in the chair of the sub-committee, will participate in this debate.
The two reports are unusual for a third reason. Reports from your Lordships’ EU Select Committee are often based on legislative proposals or communications from the Commission but in this case we inquired into a decision to be taken by our own Government: whether or not to trigger before 31 May 2014 the block opt-out from the pre-Lisbon justice and home affairs measures, provided for in Protocol 36 of the Lisbon treaty. Article 10 of Protocol 36 to the EU treaties, which was added by the Lisbon treaty, enables the Government to decide whether the UK should continue to be bound by the approximately 130 police and criminal justice measures adopted before the treaty of Lisbon entered into force or exercise their right to opt out of them all. If the Government do not opt out, these measures would become subject to the jurisdiction of the Court of Justice of the European Union and the enforcement powers of the European Commission on 1 December 2014 in relation to the UK, as they will to all other member states. If the opt-out is exercised, all the measures would cease to apply to the UK and it would have to negotiate to seek to rejoin any measures where it wanted to do so.
Some words about process: it has been clear from the start that the 31 May 2014 final deadline for triggering the block opt-out left far too little time before the cut-off date of 1 December 2014, when any opt-out would become effective, to negotiate with the Commission and Council the necessary decisions to permit the UK to rejoin any of the measures it wished to, especially since the upcoming European Parliament elections and changeover in personnel at the top of the European institutions could complicate matters. Therefore, we have no criticism of the Government for moving well ahead of the 31 May 2014 deadline; indeed, we believe they should, if anything, have moved sooner than they did to allow an adequate period for what will necessarily be complex and substantive negotiations. Time alone will show whether we were right to be concerned at the slowness with which the Government reached a view. Nor did we, or any of the many witnesses from whom we took evidence, question the Government’s unfettered right to trigger the opt-out, a right which was accepted by all the other member states when they ratified the Lisbon treaty. However, that, I am afraid, is as far as harmony on process goes.
During the first half of 2012, both Houses were assured by Ministers in the most unambiguous and unequivocal terms that before any decision was taken on triggering the opt-out, there would be extensive consultations with the relevant committees in both Houses, yet the Prime Minister announced the decision in—of all places—Rio de Janeiro, rather than in Parliament, on 28 September 2012, at a time when, seemingly, no consultation had taken place at all. There had been no consultation with the committees of either House; no consultation with the Ministers of devolved Administrations, two of which—those in Edinburgh and Belfast—are responsible for separate, independent legal jurisdictions; and no consultation with the law enforcement agencies and the professional bodies which would be directly affected by any opt-out.
Nor did matters much improve after the Home Secretary finally informed Parliament of the Government’s “current thinking” by a letter and Statement in October 2012. Explanatory Memorandums were promised in November 2012 but did not finally appear until June 2013. An impact assessment somehow went missing in action and has still not been provided. No indication was given by the time of our first report in April 2013 as to which measures the Government would seek to rejoin if they triggered the block opt-out, and when that information was provided and the list of 35 measures was revealed in July 2013, Parliament was given a few days only before being asked to approve the triggering of the opt-out. The Government response to our April 2013 report arrived a month beyond the two-month deadline for such a response and actually on the day this House was being asked to vote on the opt-out. It is, I fear, a sorry saga of disrespect for Parliament which speaks for itself.
I will not weary the House with too much detail from our first report but will focus on six broad conclusions that we reached. First, we asked all our witnesses whether they had any evidence that any single one of the pre-Lisbon measures which fell within the scope of Protocol 36 had actually been detrimental to the UK. Generally our witnesses—and they included those such as Dominic Raab MP, who not only wanted the Government to trigger the block opt-out but wanted them to withdraw from those post-Lisbon measures to which the UK had already opted in—were not able to identify a single measure that had damaged this country. Some of the measures have had no practical impact because the UK was already applying their provisions under our domestic law; some were defunct and therefore irrelevant to the whole exercise; and many had been of positive benefit to the UK, not least by strengthening the fight against serious international crime. So it was clear that the only matter at issue with respect to the pre-Lisbon measures was whether the jurisdiction of the European Court of Justice and the enforcement powers of the Commission should be extended to cover them from 1 December 2014 as the treaty provides.
Secondly, it became apparent from our inquiry that the Government, quite rightly in our view, had no objection of principle to the extension of the European Court of Justice’s jurisdiction and the Commission’s enforcement powers to other aspects of justice and home affairs legislation. How otherwise can one construe the fact that the Government have opted in to a substantial number of post-Lisbon measures—49 at the last count and mounting—which automatically involve the extension to cover them of that jurisdiction and power? As the Home Secretary told us, the Government’s approach was a pragmatic one based on their assessment of the national interest. We applauded that.
Thirdly, we considered carefully whether the existence of EU competence in the field of justice and home affairs—this is an area of shared competence—in some way undermined or weakened the system of common law as practised in this country. We heard some assertions to that effect, but no evidence was given to us to substantiate those assertions. Indeed, to the contrary, we heard a great deal of evidence on the benefits, most particularly from the professional bodies that might have been expected to be most vigilant in that respect. It is, of course, a simple fact that there are four member states with elements of common law in their systems in the European Union: Cyprus, Malta, Ireland and the UK.
Fourthly, we also gave full consideration to suggestions that, even if the UK triggered the block opt-out and did not seek to rejoin, for example, the European arrest warrant, our national interests could be secured in other ways, by relying on Council of Europe instruments or on bilateral agreements for co-operation with other member states. Our conclusion was that such bilateral systems, even if other member states were prepared to negotiate them, which is far from certain, would be slower, more costly and a less sure protection for our citizens than they have under existing EU legislation; and that the Council of Europe instruments would be no equivalent substitute for that legislation.
Fifthly, we looked more carefully than the Government initially seem to have done into what I would call the Irish dimension: the massively improved law enforcement co-operation that now prevails between the Republic and Northern Ireland. While the Irish Government did not wish to give evidence to our inquiry, we heard quite enough from other sources to convince us that that the improved co-operation and the de-politicisation of law enforcement activity on both sides of the border depends largely on the underpinning of EU legislation. Remove that underpinning—and here the European arrest warrant is of central importance—and one would risk the unravelling of structures of co-operation which have done so much to improve the daily lives of our fellow citizens in Northern Ireland.
These five conclusions led us to our sixth and overarching conclusion that the Government had not made a convincing case in favour of their preferred option to trigger the block opt-out and to seek to rejoin a limited number of pre-Lisbon measures. That sixth conclusion has subsequently been overtaken by the decision of both Houses to endorse triggering the block opt-out, but it remains the view of the two sub-committees and of the EU Select Committee itself.
Our second report, for which the Government specifically asked in the Motion that was agreed on 23 July, did not seek to reopen that debate, but rather to focus on the situation following the Government’s notification to the Council on 24 July triggering the block opt-out. Here, too, I will spare the House too much detail and focus on a few salient points. First, we carefully reviewed the 35 pre-Lisbon measures which the Government had stated an intention of rejoining and which this House, unlike the other place, had explicitly endorsed on 23 July. We concluded that the Government had indeed picked out most of the measures that it was essential for the UK, in its own national interest, to seek to rejoin. However, we identified a small number of additional measures, beyond the Government’s 35, which we believed it was in the UK’s national interest to rejoin; and we urged the Government to add these to their list when they sat down to negotiate with the Commission. These included a number of implementing Europol measures which we believed would be judged by the Commission to be necessary to rejoin on coherence grounds, a view with which we had sympathy. However, we also identified the European probation order, the European judicial network and the convention on driving disqualifications which we believed it was in the UK’s national interest to rejoin; and the framework decision on racism and xenophobia, withdrawal from which we believed would do the UK considerable reputational damage, even if our domestic laws were there to give effect to its provisions. I can just imagine President Putin or the Chinese Government rubbing our noses in that withdrawal.
Turning back again to process, we underlined the importance of the Government giving Parliament regular progress reports on the negotiations, by now, I assume, under way with the Commission and the Council; and of their providing a full and detailed impact assessment in good time before they seek the further vote in both Houses which it is their stated intention to hold on the final package of measures that the UK will rejoin. We expressed yet again the concerns that time is short between now and 1 December 2014 to complete the negotiations for rejoining the pre-Lisbon measures identified, which might necessitate putting in place robust transitional measures to bridge any gaps. This would be particularly important in the case of the European arrest warrant, where any hiatus could lead to extensive litigation and perhaps to suspected criminals escaping justice.
The Government’s response to this second report was full, detailed and on time— just. It arrived on the day it was due; on this occasion, sufficiently well in advance of today’s debate for it to be properly considered. For that, credit should be given, but I have to say that much of its content was deeply disappointing and it did not seem to give a seriously considered reaction to the very modest list of additional measures that we suggested should be included among those the UK should seek to rejoin, and which our committees believed that it would be in the national interest to do. The repeated assurance of some negotiating flexibility over the Europol implementing measures is welcome, but they should surely have been on this list from the outset. The explicit recognition that a future Government might well wish to rejoin the European probation order leaves us wondering why we are planning to drop out of it now.
It is good, of course, that the Government have at last recognised that there could be some reputational damage following our withdrawal from the racism and xenophobia decision. No doubt there will be. Only time will tell whether it will be, to use the Government’s word, “significant”. Why incur such damage at all when the reason for doing so appears to be the rather far-fetched fear that the UK might be put under pressure to criminalise Holocaust denial? The reasons given for not rejoining the European judicial network are so threadbare as to be almost laughable, and on the Convention on Driving Disqualifications, it appears that we are going down the road of negotiating bilaterally with the Irish a provision that will replicate the EU measure while ditching all the practical benefits we get from the EU measure vis-à-vis the other 26 member states. Would it not have been an awful lot simpler and certainly more cost-effective simply to seek to rejoin the EU Convention on Driving Disqualifications?
All in all, I fear that it is hard to resist the conclusion that the Government’s approach to calculating the national interest on these measures is purely arithmetical one and not based on the merits of the measures in question. That is why it is to be hoped that, as the negotiations with the Commission and the Council proceed, the Government will think again about their possible inclusion. It is also a reason to take more seriously than the Government currently do our recommendation that there should be a commitment to review the effect of the block opt-out some years—three, perhaps—after it comes into force.
I apologise for speaking at such length, but the subject matter is complex and the issues at stake are of great importance. I would be most grateful if the Minister, in addition to responding to my contribution and those of other noble Lords, would give a progress report on the negotiations with the Commission and the Council. Will he tell the House whether the negotiations started and, if so, when? Will he say when the next progress report to Parliament will be made and give an undertaking to provide the promised impact assessment early enough before the second debate and vote to permit your Lordships’ EU Select Committee, if appropriate, to report to the House ahead of that vote? Will he give some idea of the timing and scope of that debate and vote?
I realise that I have spoken quite harshly about the Government’s handling of this issue. I have done no more than express the views of the committees but, in concluding, I should add one personal observation. The choice offered to the Government under the provisions of Protocol 36 was an exceptionally unpalatable one and, while the committee believes that they may have made the wrong decision, it would be as well to recognise that the drafting of Protocol 36, posing an all-or-nothing choice, was not in the best interests of this country.
Lord Jopling (Con)
My Lords, the noble Lord, Lord Hannay, kindly referred to the fact that I was some years ago his predecessor as chairman of the sub-committee of the European committee that deals with matters of home affairs and that general area. I am bound to say that I have spent almost all the 16 years that I have been a Member of your Lordships’ House as a member of one or other of the sub-committees of the European committee, as well as a member over a number of years of the main committee.
The noble Lord, Lord Hannay, spoke of speaking harshly, and I shall speak no less harshly, but not quite on the same issues as those that he talked about. I am not a member of either of the select committees that have produced these reports. I am now a member of Sub-Committee C, which deals with foreign affairs and defence. Years ago, I was chairman of that committee. Over the years, I have had a continued disquiet over the Government’s attitude to the House of Lords and its work. The noble Lord, Lord Hannay, referred to a good many of the reservations that the members of the committees have had about how the Government have responded—and I am talking about Governments of both parties. I shall come to that a little later. I do not believe that the departments involved treat your Lordships’ House as they should.
If I were making a sermon, I would take as my text the Government’s response to House of Commons Paper 683, titled, The UK’s Block Opt-out of pre-Lisbon Criminal Law and Policing Measures, in which the Government say that they,
“thought it necessary to reply to one of the principal criticisms running through your report: a perceived lack of engagement by the Government with Parliament on this issue”.
That would be my text, but then one comes to the two reports that we are discussing. Paper 159, published on 23 April last year, in paragraph 280 says:
“We regret that the Government have not complied with their own undertakings to engage effectively with Parliament regarding the opt-out decision”.
In the second report, to which the noble Lord, Lord Hannay, also referred, which is Paper 69 published on 31 October last year—I am sorry to have to keep quoting these things, but it puts things into proper perspective—the committee states:
“We restate our disappointment that important information about the measures covered by the opt-out was not provided in a timely manner to Parliament and was only made available a few days before both Houses were asked to take decision on the Government’s proposed course of action”.
In the same report, in Chapter 2 and paragraph 106, the committee says:
“We regret that the grounds on which the Government made their selection of measures to seek to rejoin were not set out persuasively in the EMs”—
that is, the explanatory memoranda.
Those are just some examples of when the committee has had anxieties. Those anxieties are also spread among other European Union sub-committees, and we have seen much more blatant examples of incompetence by departments and Ministers in the past. When I was chairman of the committee of which the noble Lord, Lord Hannay, is now chairman, we had a case under the previous Government involving Mr Liam Byrne, who took over a year to reply to one of our letters. The then Leader of the House, the noble Baroness, Lady Ashton, actually named him, with a rebuke on the Floor of your Lordships’ House. I have been a Member of one House or another in this Building for just coming up to 50 years, and I can never remember a senior member of the Government publicly criticising a junior Minister, as she did, before.
We have had yet another case in Sub-Committee C, which I raised with the previous Minister, the noble Lord, Lord Green. We wrote him a letter in November 2012. He did not reply. We sent reminders at staff level the following March, May and August. We then wrote again last October, to find out what was going on. We found almost immediately afterwards that the Government had agreed the text, but we still had not had a reply to our letter of a year earlier. When the noble Lord came to give evidence to the committee, on 21 November last year, it seemed to the committee—I cannot swear that this is true, but there was every indication that it was—that the first the noble Lord had heard of this incompetence was as he was in the passage upstairs coming into the committee, when one of our officials told him and his officials that the matter was likely to be raised.
Those are two examples of Ministers in different Governments taking over a year to reply to our requests and correspondence. Frankly, it just will not do. One cannot help feeling that, just because your Lordships’ House is not so politically confrontational as the House along the corridor, they seem to think that they can treat it in that dilatory way. I resent that very much indeed. I am no Eurosceptic—philosophically, I tend very much in the opposite direction—so I am not using this argument to push a Eurosceptic line. That is the last thing I would do.
We get far too many overrides. Departments seem to have an unacceptable lack of urgency. Above all, Ministers do not insist. They do not see to it that they enforce proper attitudes towards your Lordships’ House in their departments. When, a few weeks ago, we confronted the noble Lord, Lord Green, with that delay—I got the impression that the poor man was hearing all this for the first time—I asked him, with regard to ministerial control over departments, “Have you ever heard of Sir Thomas Dugdale?” He said that he had. Your Lordships will remember that Sir Thomas was the Minister of Agriculture in the other House who resigned over the Crichel Down affair, which started in the 1940s, because he reckoned that he was in charge of the department, and dilatoriness and sloppiness in departments—which is what we see now—was the ultimate responsibility of Ministers. Your Lordships’ House should not be fobbed off by lack of ministerial control and sloppy departments.
Baroness Corston (Lab)
My Lords, I am very grateful for the opportunity to take part in this debate as the person who, since May of last year, has chaired Sub-Committee E, which is one of the two sub-committees together with that of the noble Lord, Lord Hannay, who has already spoken and whose expertise in these matters is probably unrivalled in this House. I want at the outset to pay tribute to the noble Lord, Lord Bowness, my predecessor as the chair of Sub-Committee E. He chaired that committee with great distinction and he took it in turns—as I have since May—with the noble Lord, Lord Hannay, to chair the meetings and conduct the inquiries. I associate myself and the members of my committee with the entire content of the speech of the noble Lord, Lord Hannay, particularly on the way in which this House has been treated by the Government. I also echo the comments of the noble Lord, Lord Jopling, who has had a distinguished career in both Houses of Parliament.
The two reports we are debating today represent a considerable amount of work by the two sub-committees, and by the Select Committee, on behalf of the whole House. I know that the noble Lord, Lord Boswell, who chairs the European Union Committee, is disappointed that because of another engagement he is unable to be in his place today. It was therefore something pleasing to note from the Government’s response to our second report, the Follow-up Report on EU Police and Criminal Justice Measures, that the Government considered that the reports represented what they describe as,
“an extremely thorough analysis of a complex issue”.
It was thorough and it is complex.
I will not go on about or rehearse the procedural failings of the Government in their dealings with Parliament on the opt-out. Both our reports comment on all that and it has been rehearsed before. Things went wrong—it may be said that they went downhill— from the Prime Minister’s speech in Rio, which appeared to pre-empt the decision on whether to exercise the opt-out even before our first inquiry began, and have taken a long time to get back on track. I hope that, in his reply, the Minister will tell us that lessons have been learnt.
There are more steps to come in the procedure under the opt-out protocol for the United Kingdom to rejoin measures, and we expect the Government to keep Parliament properly informed and in a timely fashion as the process plays out. In particular, we will need a comprehensive impact assessment to assess the outcome of the Government’s negotiations on rejoining measures. An assessment of the measures covered by the opt-out was promised as long ago as November 2012, which is 14 months ago, and the Explanatory Memoranda published last July do not fulfil that requirement. I emphasise that the impact assessment should not cover just the 35 measures which the Government wish to rejoin, as we can all make a judgment as to the efficacy or rightness of those decisions; they should certainly cover the other 95.
It seems to me, and to my sub-committee, that it is crass to fail to explore the impact of not seeking to rejoin measures such as those on driving disqualifications, probation or racism and xenophobia. It is all very well to say that we have comprehensive legislation in that final instance, on racism and xenophobia. That may be true—I think it is—but it sends out a rather bad signal when that decision was taken at the same time as vans were going round certain London boroughs telling illegal immigrants to go home.
In our first report, we considered whether the opt-out should be exercised. We said that we found the Government’s case for exercising the opt-out was unconvincing. I, and we, remain unconvinced. The Government’s decision to exercise the opt-out was much influenced by their view on extending the jurisdiction of the Court of Justice of the European Union to the 130 measures to which the opt-out applies. We think that the Government’s fears are misplaced. It is highly unlikely that the 130 measures were drafted without thought as to this jurisdiction, as the Government say, given 11 member states had agreed that their courts could make preliminary references to the Court of Justice for the interpretation of European Union police and criminal justice measures from 1999.
Of course, there will be cases from time to time where the Government will disagree with the judgments of any court of any jurisdiction. However, we do well to remember that courts act as guardians for us all and the Court of Justice ensures the common interpretation of European Union law throughout the Union and prevents backsliding from their obligations by member states. The United Kingdom has nothing to fear from an extension of the court’s jurisdiction to these police and criminal justice measures. It would otherwise hardly seek to rejoin even 35 of them.
Unfortunately, although the Government are saying that the reports were helpful in informing their decision on the issues, I echo a remark of my colleague on the justice sub-committee, my noble friend Lord Rowlands, that it appeared to be something of “a dialogue of the deaf”. However, the issue of whether to opt in is now water under the bridge, following the Government’s notification of their decision to opt out in July of last year. We now have to focus on the implications of having opted out of the 130 measures concerned.
We considered the Government’s list of 35 measures that they wish to rejoin. They are set out in Appendix 4 to our second report. These measures contain the most significance in the interests of the UK and other member states. I am pleased that the Government will seek to rejoin them, in particular the legislation on the European arrest warrant and on Eurojust, both of which are particularly interesting and important given evidence to our committees in the recent past about the growing Europeanisation of crime. However, that does not mean that the others have no significance—only that the 35 are the irreducible minimum. They may yet turn out not to be the practical minimum. The Government must convince the Commission, in particular, that the set of measures that we rejoin is one that, as Protocol 36 requires, does not seriously affect the practical operability of the measures and respects their coherence.
This issue of coherence matters. Our second report considers this issue and suggests that some other measures may have to be added to the list of 35. I ask the Minister to tell us what the Commission has said on the coherence of the 35. Do the Government envisage adding to the list for reasons of coherence? It is vital that the decision on which measures to rejoin takes account of the national interest, including the national interest in rejoining a coherent set of operable measures. As our second report says, we hope and expect the Government to respond flexibly to adjustments that the Commission may propose to the list of measures that they wish to rejoin. There should be no place for a numbers game on this important issue.
The national interest is not confined to considerations of practical effectiveness, as the Government seem to believe. Of course legislation is about substance, but our approach to European Union legislation also makes signals of our intent. Opting out risks signalling to our European partners a lack of engagement on the part of the United Kingdom in the application of standards, the operation of investigations and prosecutions and the safeguarding of citizens’ rights in the field of policing and criminal justice—as important for our citizens when they visit the other countries of the European Union as it is for their citizens when they visit the United Kingdom. No matter how good our own standards are in, for example, combating racism, failing to rejoin that measure signals a detachment.
Risks remain. Even if the Government are successful in obtaining agreement to our rejoining measures, there may be gaps in application of the measures that we rejoin. The Government and the Commission will no doubt work hard to avoid gaps but may not be able to do so in every case. Transitional measures may be necessary.
One gap is already apparent: measures for obtaining evidence in cross-border cases will be greatly improved by the directive, to be adopted very soon, establishing a single system for obtaining evidence in cross-border cases, through a European investigation order. We should remind ourselves of some high-profile cross-border cases that have been very much in the public mind in the past few years. Three years will be allowed for member states to implement the directive into national law, so the new system may not be fully effective throughout the European Union until 2017. However, on 1 December this year, the UK will cease to participate in the current EU convention on mutual assistance because we have opted out of it. The Government say that this will not make much difference because there are other available measures. Perhaps so; we shall see. But this example illustrates how gaps may appear despite what I acknowledge may be good intentions.
Finally, the Government—this or another—may wish to revisit the question of whether to rejoin other measures in light of future developments. There is no time limit in Protocol 36 on opting back in, as the Government have acknowledged in their response to our second report. All the more important, therefore, is the last recommendation in our second report that there should be an ex-post review of the impact of opting out, in the same spirit as we support post-legislative scrutiny. I hope that the Minister will give this a more favourable reception than that given in the formal response to the report.
Lord Sharkey (LD)
My Lords, I congratulate the noble Lord, Lord Hannay, on his incisive and analytical opening speech. It is a privilege to serve under his chairmanship on your Lordships’ EU Sub-Committee F. I do not intend to dwell on the rather convoluted chronology of these two reports and the Government’s responses to them. I intend to focus my remarks on the second, rather than the first, report.
However, in dealing with the first report and the Government’s response to it, I simply remark that its conclusion that the Government had made no compelling case for opting out still seems very strong. The Government’s given reasons for opting out still seem unconvincing. I also note that the Government have been less than punctilious in their dealings with the House over the first report. In particular, I point to the extraordinary delay in producing the Explanatory Memoranda, and the fact that the Government’s response was produced one month late, and only hours before the debate on the government opt-out/opt back in Motion. The debate on that Motion on 23 July produced a kind of clarity. As I said in that debate, I thought that the Government’s selection of 35 items to opt back into was well chosen and coherent. I still think that that is the case, just as I still think that whole exercise was completely unnecessary.
The 95 items that the Government have chosen, for the moment, not to opt back into are all harmless, and some are of real value to the UK. As the noble Lord, Lord Hannay, said, the Government have presented no case that any of these items operates against our interest or does any damage. However, we are where we are, and I want to address the remainder of my remarks chiefly to the government response to the committee’s second report.
In particular, I want to focus on some of the measures that we recommended be added to the Government’s list of 35 opt-ins. There are four of these, which have already been mentioned by the noble Lord, Lord Hannay, and other speakers. The first is the framework decision on combating certain forms of expressions of racism and xenophobia by means of criminal law. The UK has long been a leader in this area. Failing to opt back in would abandon that leadership and would send out a completely wrong signal about our commitment in this area. The Government’s reasons for not opting back in, put simply, amount to, “I’m all right, Jack”, with no real acknowledgment of loss of leadership and reputation.
The second measure is the rejoining of the European judicial network. Everybody except the Government seems to think that we should rejoin. The Law Society of England and Wales, the Law Society of Scotland, the Lord Advocate and others all thought that it was a useful measure. The Government’s reasons for not rejoining amount to a recognition that the contact points the network provides are “undoubtedly helpful” but,
“it may be possible to maintain those contacts without formally participating in this Council Decision”.
Why leave a system that works and causes no harm in order to rely on an informal equivalent? It is not a very strong argument.
The third measure is the European probation order. Our report said that we believed that,
“this 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 continue to decline to opt back in. Their reasons are to do with the implementation, and with allowing the ECJ to have jurisdiction. We are of the view that the first of these objections—implementation—could be overcome by negotiation at a European level, and the second amounted to an almost irrational fear of the ECJ.
The fourth measure is the convention on driving disqualifications. This enables member states essentially to prevent a driver banned in one member state from driving in another. As the Government acknowledged, our report contains strong evidence of the importance of this measure in supporting co-operation with the Republic of Ireland. However, that is apart from its clear, common-sense benefits in a more general way. Instead of rejoining the measure, the Government propose to establish a separate bilateral treaty with the Republic of Ireland. This is surely a very odd way to go about things when there is a perfectly satisfactory mechanism already on the table.
I have not included in this list of four measures the measures implementing Europol council decisions, which fall within the scope of the block opt-out. The Government still decline to opt back in to these, but in this case not very convincingly. It is reasonably clear that if they have to do so in order to pass the test of coherence, then they will in fact rejoin these measures. This makes it rather odd that they did not agree to do so in the first place.
I strongly urge the Minister to consider rejoining the four measures about which I have spoken. As part of that consideration, I urge him to publish the impact assessments of all the 130 measures which are at issue, as was said by the noble Baroness, Lady Corston. These impact assessments must surely already exist, and must have formed a part of the Government’s thinking. The Government should share them with Parliament without further delay. It is very important that we take forward discussion of the opt-in measures with all the evidence and assessments being made available to us here in Parliament. I hope that the Minister agrees.
Lord Lloyd of Berwick (CB)
My Lords, I am very glad to follow the noble Lord, Lord Sharkey, who has spoken so clearly on these matters. When I put my name down to speak in this debate I knew that I must look back at what I said the last time we debated these matters, to ensure that I do not say something different on this occasion. I find that on 9 July 2013 I asked whether there was not an unjustified risk in opting out of what is good, which is the 35 measures, in order to get rid of the 95 pre-Lisbon measures, most of which are of no real use to anybody.
I am happy to say that the noble Lord, Lord McNally, who we miss today, said that there was a lot of logic in what I had said. I also note that on that occasion I said that it was the noble Lord, Lord McNally, who was missing the whole point in this debate and not, as he suggested, the noble Baroness, Lady Smith, who I am happy to see in her position today.
Of course, things have moved on since then and I think that the best thing I can do today, as one of the few non-members of the European committee to take part in this debate and following the comprehensive speech of my noble friend Lord Hannay and the other excellent speeches that we have heard—above all, from the noble Baroness, Lady Corston—is to say how grateful we should all be for all the noble work that they do and have done since our last debate on our behalf, in particular for providing us with their follow-up report. It is a great comfort to the rest of us while we get on with other things, all of which are much less important than what we are discussing today, to feel that they are looking after these matters on our behalf. Having said that—and I really mean it—the only remaining service that I can usefully perform today is to draw attention to those matters in which I have the closest interest, on which the committee seems to have made out a strong case and in respect of which the Government’s response has been the most feeble.
First, I am delighted that we will opt in to the existing European Council decision on Europol, but I can see no good reason for not opting in now to the new regulations when they come forward. The only reason given by the Government is that they want to wait to see the completed text in case there is something that they do not like. That might be a good answer if we were talking about some non-proven field but it is not a good answer in relation to Europol, with which we are all, happily, very familiar.
Secondly, like the committee, I am glad that we are remaining in Eurojust, but I urge the Government also to remain in the European judicial network. Here, I strongly agree with what the noble Lord, Lord Sharkey, said. The more co-operation we can have across national boundaries the better. The only answer given by the Home Secretary for not accepting this recommendation is that we all already talk sufficiently with each other in respect of these matters, but that is a completely inadequate answer.
Thirdly, I come to the European probation order. It is not one of the 35 measures but I can give no better reason for opting in to it than that it was suggested that we do so by Sir Scott Baker. For the reasons he gave—and there are no better reasons from no better man—I suggest that we should opt back in to it. Once again, the Government have given no reason for not doing so.
Lastly, I want to refer to the question of the court’s jurisdiction. I simply do not understand what the Government’s position is on this and I would be very glad if, in his reply, the noble Lord could give us an explanation.
I have come to the end but my final point is perhaps the most important. I urge the Government to press on with the negotiation with all possible urgency for two reasons: first, to avoid, if possible, the need for any transition arrangements and, above all, to avoid a last-minute gap appearing in the structure, which could be truly disastrous; and, secondly, to give us enough time to prepare for the next debate, which has been promised and at which we will have to make a crucial decision.
Viscount Eccles (Con)
My Lords, given the speech of the noble and learned Lord, Lord Lloyd, and the other speeches, my noble friend on the Front Bench has a number of questions to answer. I can assure him that I shall not ask any questions; rather, I will try to sketch in some of the background that has led to the criticisms and problems that have been referred to extensively. I do not need to add to them.
When we see the manifestos of the Conservative Party and Liberal Democrats, we may be able to analyse why some of these problems have arisen. They are not very far deferred but, when we see them, both manifestos may not read exactly the same. As a general comment on what has been said, it can be quite risky to live in the ivory tower where you think process is more important than outcome.
I was a recent member of Sub-Committee E. The two reports are very professional and admirable, and I am grateful to the two chairmen for the way in which the reports stayed with the evidence that the committee received with great accuracy and professionalism. In the light of the reports, particularly the first, it is quite surprising that the Government—if they had only considered the circumstances of the 130 and the 35 and your Lordships’ report—ever reached the decision they came to. We all agree that it is entirely sensible for the 28 members, 18 of whom are in the eurozone, to co-operate on the matters covered in the two reports. There seems absolutely no argument for not continuing that co-operation, whatever the political situation may be or may become.
As a subsidiary question, the Union does not seem to have a good way of repealing and reforming things, and it may not have been unreasonable to point that out at the time. However, the missing dimension is politics. I do not see how, after a 65-year journey from the beginnings of Europe, any decision now will escape political consideration as well as administrative and sensible co-operation consideration. The degree of political and constitutional change has been enormous since 1949—Strasbourg; Winston Churchill making his speech; the avoidance of war being foremost in everyone’s mind; some formidable political figures; the solution to the relationship between France and Germany, leading to the creation of the iron and steel community and so on; and always, of course, Soviet Russia and the threat of the Cold War.
The France-Germany dimension is now essentially solved. There may be a residual risk but it is nothing like the risk that was experienced by Europe from around 1870 until 1945. With that record, Europe had a lot to answer for, including the global reach of its colonial pretensions, from which we are still suffering today.
Does Europe have the capacity to start the third world war? I hardly think so. Then it was NATO and the Cold War, but if we look at the United Nations, which is comprised of nearly 200 countries, the picture has completely changed, and it does not need me to spell out the details of those changes. There is a big political question, but the question has changed from that of 65 years ago and indeed that of 30 years ago, before the Berlin Wall came down. What is the right place for 28 countries in a relatively declining Europe with around 5% of the world’s population? I do not think that the answer is self-evident, although sometimes when we consider matters European, there is an assumption that it is.
To me, this is no time for being inward-looking and thinking that these 28 countries are as important as they used to be and that nothing has changed in their relationships and potential relationships with the rest of the world. It is not a time when one can be confident that some journey to a Utopian version of western democracy will work. There is no doubt that there are people in the European system who, although they do not always tell us exactly what they are thinking, believe that they are on some Utopian journey to a version of western democracy. Past Utopian experiments have been patchy and some have been disastrous. There is not the same welcome for western democracy all over the world as we expected only a short time ago there might be. Indeed, one of our biggest problems is that there are quite a number of places we can name where there is no prospect of western democracy and the rule of law as we understand them. We have to think with great care about the European Union’s place in the wider world and not concentrate too closely on our own local problems.
The people of Europe are disenchanted, nervous and uncertain about what is happening. I have always been a keen European, but something is wrong: what exactly is it? Responses crying for the populist approach do not seem to answer the question, because who can draw the line with any accuracy between populism and being rightly in touch with public opinion? I associate myself with the big and uncertain question: where are we going? Are 28 disparate European countries to call for the end of the nation state? I think not. Will the world benefit from an inflexible European bloc? There must be doubts about that. We need, I think, a brand of political leadership of which there is no sign at present.
Lord Davies of Stamford (Lab)
My Lords, this is a matter the importance of which goes far beyond the individual sub-committees which have been concerned with these reports, so without any hesitation I feel it right to intervene in this particular debate. I am particularly glad to be here today because I heard in the speech of the noble Lord, Lord Hannay, what I think was the most devastating account of bad government that I have heard in all my 27 years of service in this place and in the other Chamber. I realise that those 27 years only just pass the halfway point of the career of the noble Lord, Lord Jopling.
This is an occasion when the Government would be well advised to listen to what is being said about them. I am sure that the Minister will have listened because I know him very well and he is the sort of person who believes strongly in listening to Parliament and that it is essential for Ministers to do that carefully. I also think I know him well enough to know that he is more than capable when necessary of speaking extremely frankly and effectively in private to his ministerial colleagues. He may well feel the need to do that after this afternoon’s debate. What has been quite extraordinary this afternoon is the complete consensus among all speakers from all sides of the House about the gravity of the situation that has been revealed by the Select Committee’s reports.
That consensus was not in any way detracted from by the noble Viscount, Lord Eccles, who on the whole is always very keen to find a way, if he possibly can, of defending the Government. He made a number of interesting geopolitical observations but he could not find a single defence of the way in which the Government have acted in this matter.
It has not been quoted already so I will read to the House one part of the committee’s criticisms of the way in which the Government have proceeded. I think the whole House will agree that this is parliamentary language, this is measured language, but it is more than justified language. Paragraph 106 of the report dated last October says:
“In our view, this lack of analytical rigour and clarity regarding evidence drawn upon is regrettable. Despite the length of its gestation, Command Paper 8671 showed signs of having been hastily put together. We are disappointed that the Command Paper presented both the 35 measures which the Government intend to rejoin and the 95 they do not intend to rejoin in an unconvincing manner. We regret that the grounds on which the Government made their selection of measures to seek to rejoin were not set out persuasively in the EMs”.
It is very unusual that a committee expresses itself quite as strongly as that. It is quite evident that the Government have done a thoroughly shoddy piece of work.
It is quite extraordinary that there was no consultation or impact assessment on this occasion. Surely consultation and impact assessments are now routinely regarded as essential prerequisites for good legislation in all sophisticated democratic countries. That is true, I am sure, of most if not all of our partners in the EU; it is certainly true in the United States; it is certainly true in the European Commission in its legislative role before it prepares legislative directives. One has to wonder why the Government of this country on this occasion decided simply that they were not required or could be dispensed with.
It is quite clear that there was simply no analysis of the national interest before these decisions were taken about opting out and then opting back in. This whole expensive farce—expensive in terms of not merely the cost over several years of all the negotiations that have been made necessary by this extraordinary decision but the real cost of the uncertainties created, the gaps that occur in capability or in co-operation as we have opted out of something and have not got back a suitable alternative—was gone into in a mood of complete and utter frivolity, without any sense at all of how the national interest was being impacted.
If one reads the individual government excuses for the decisions they have taken to opt out of individual measures, there is not a single occasion where there is an actual concrete argument stating that a specific national interest would be negatively impacted if we remained committed to the original measures in the justice and home affairs deal—not a single one. What actually happens is that on every occasion the Government say either, “Well, we are doing it by some other means”, or, “It does not matter too much”, or, “Maybe there is another way of achieving the same effect if we really try hard”.
I will give the House a flavour of some of that. Under the minimum standard measures, the excuse is that it, “adds little practical value”. The Government do not deny that there may be some practical value. There is no suggestion for a moment that there is any negative value. There is no suggestion that it would be against the national interest to opt in to those measures, but the best the Government can come up with is, “adds little practical value”.
Then, let us take the three Europol council decisions. Following the decision to opt back in to Europol, there was no decision to opt back in to the subsequent European Council decisions. The Government state in their defence:
“The UK has already issued the declaration as required by Article 2 of this measure and has therefore already designated Europol as the central office for combating euro counterfeiting. The measure does not set out any ongoing requirements following the issue of this declaration”.
In other words, there is no cost and no gain. So why waste time? Why waste money? Why waste political good will? Why waste, for that matter, the time of this House, which is just a very small part in this whole sorry exercise? There is no reason whatever. The Government say that the second council decision following the Europol opt-in measure has,
“no material impact on UK participation”
in Europol—again, a complete negative. So it goes on.
Another example, which has already been mentioned, is the racism and xenophobia directive. We were ahead of the game there: I think we may have been the first country to introduce a race relations Act and to subsequently introduce legislation in this country which made an offence of hate crimes. However, we have decided to opt out for the reason that, as the Government put it,
“the UK already meets the requirements of this measure in domestic legislation”.
What an awful pity to take our name away from a convention simply because we are already implementing it. Are we going to do that throughout the whole range of international treaties, so that where we are actually implementing something we take our name off the treaty? What an extraordinary idea. So the sad story proceeds.
What do the Government have to say about the European judicial network? Why do we have to opt out of that? What is the burning national interest that requires us to make an enormous fussation over it? The Government’s answer is that,
“it may be possible to maintain those contacts without formally participating in this Council Decision”.
Why “may” be possible? Why replace the indicative with the subjunctive? Why create an uncertainty where there is now, or could otherwise be, a certainty? It does not make sense at all. Why pay a price for a negative gain? The noble Lord who is sitting on the Front Bench is a logical man and must find it difficult to explain conduct of that kind.
Driving disqualifications have already been mentioned. Here again, it is quite extraordinary. We have got ourselves in a situation where we have said we are going to renegotiate a bilateral deal with the Republic of Ireland, which takes time and uses good will. It is actually a farce, because everybody knows it would be much easier to remain party to the original directive in the first place. If we need to protect British subjects from drivers who have been disqualified in the Republic of Ireland, why do we not need to protect British subjects and residents of this country from drivers who may have been disqualified in France, Belgium, Germany, Spain or any of the other countries from which millions of drivers come here through the Eurotunnel and on the ferries? It does not make the slightest sense.
If anybody had any doubt about the Government’s lack of good faith—I use that serious term advisedly—in this whole matter or that the Government have never actually wanted to look at or make a proper analysis of the national interest before reaching decisions in this area, let me provide absolutely conclusive evidence. The Government have been engaged in an exercise which has been widely promoted as being a great attempt definitively to decide what is the national interest in our relationship with the European Union: where we should better do things on our own and where we can better achieve our national objectives jointly by taking part in EU initiatives or by becoming a party to EU directives. That is called a balance of competences exercise and everybody in this House is extremely familiar with it. The Government, knowing that this particular decision was coming up, deliberately scheduled the examination of the criminal justice and policing aspects of the balance of competences review to start in spring 2014 and to come to an end only in the autumn of 2014—obviously far too late to influence decisions about opting in and opting out over justice and home affairs.
What an extraordinary thing to do. Is that because the Government thought that the whole exercise was a waste of time? Is it because the Government thought that it was not going to be a proper analysis of the national interest and because it, too, was a farce? Or is it because the Government thought that it would be a genuine analysis of the national interest and that it might be embarrassing to have it come out in time to influence a decision on opting in and opting out, because it might well say, “Don’t bother to opt out. There is no reason to opt out; it is not in the national interest to opt out; you’re much better staying 100% in so that you have maximum influence within the institutions and the decision-making structures”? Or is it because it was completely irrelevant and the Government were not interested in the national interest? I feel that that is the only conclusion that we can rationally come to in this House today. All the Government were interested in doing was buying off their Eurosceptics. This has been a party political issue for the Government from day one—100% party political. All they have been concerned about is the minimum price to get the Eurosceptics off their back and how much national interest had to be sacrificed in order to satisfy them. That is what it has been about, and it is about time that somebody honestly faced the facts and was prepared to say so.
Lord Blair of Boughton (CB)
My Lords, I am a very new member of Sub-Committee E, chaired by the noble Baroness, Lady Corston, and am therefore a real novice in this field as it is related to politics. I am just beginning to grasp the fact that there are things called reasoned opinions and explanatory memorandums which float around the various sub-committees and in and out of the Foreign and Commonwealth Office.
However, I am not a novice in criminal justice, policing and home affairs. I have listened with care to the detailed comments made by noble Lords and want to take a different angle from that taken so far. I want to talk about tone, and for a practical reason which I shall explain. During many debates that I have listened to in your Lordships’ House, particularly on education, a number of noble Lords have emphasised the importance of soft skills. Soft skills include language, the right approach to negotiation, facilitation, and concern to mediate and compromise rather than taking a fixed and unmovable certainty.
There can be no doubt that during the past 20 years the UK has been a leading light across Europe in the fields of justice, home affairs and policing. Many of the current structures and approaches in place across Europe have been designed and driven by the British. UK policing is also referenced as best practice across Europe, and I have heard it so referenced many times. Yet now we are seen to be withdrawing.
Last October, I made a visit to Brussels with the noble Lord, Lord Davies of Stamford, and the noble Baroness, Lady Liddell, who is not in her place today. Again and again as we spoke to officials of the Commission and the Parliament, of all nationalities in Europe, we heard sadness and bewilderment about what the UK was doing in relation to this opt-out. This opt-out was at the centre of their concern. They could not understand why the UK Government were moving in this direction. British officials in particular were concerned that this would diminish UK influence which it would be difficult to rebuild.
Of course, as the noble Lord, Lord Hannay, has explained, the Government have the right to exercise the opt-out. Indeed, it was a right negotiated—in my view unwisely, as others have said—by the previous Government. I also welcome the decision by the Government to opt back in to 35 measures. However, I ask the Minister to reflect with his colleagues on language, on their narrative, and on their approach to the next stage of justice and home affairs negotiations.
Let us consider the European arrest warrant. Of course there have been problems, but, on analysis, one sees that almost all those problems are not with the warrant itself but are problems abroad in relation to lengthy pre-trial detention, which would have happened when people had been extradited even if the EAW had not existed.
I just hope that the Minister and his Home Office and Ministry of Justice colleagues will start, as they renegotiate the opt-in, to emphasise the successes of the European arrest warrant, such as the solving of the Irish border criminal justice problem after 70 years. No return to the Costa del Crime is wanted. Or there is the arrest in Italy of Hussain Osman, the attempted bomber of 21 July 2005. These are marvellous successes that the new system brought in. No country in Europe can combat terrorists, paedophiles and organised criminals without the European Union justice and home affairs structures and processes. Putting it bluntly, an argument with UKIP should not be the reason that representatives of a responsible Government do not admit or celebrate the successes of some of those structures.
This is not just political but practical. Over my career, I have watched confidence being built between the police forces of Europe. I know it is there now; it was not there before. There were 90 years of distrust between the UK police forces and the Garda Síochána. There were decades of frustration between UK and Spanish police. There was the obvious sign of rapport when the Greeks called in Scotland Yard to investigate the murder of the British attaché in Athens. The co-operation with the Italians I already mentioned was almost inconceivable in the years before the JHA reforms. We need to hold on to these achievements—and recognise that holding on to them is the purpose of the renegotiation. The renegotiation does not sit by itself but has a purpose to make people safer across Europe.
Viscount Bridgeman (Con)
My Lords, I join other noble Lords in thanking the noble Lord, Lord Hannay, for this debate and pay tribute to the clerks—Michael Torrance and Chris Atkinson, and especially the special adviser Paul Dowling—for the very personal help they have given me. Also, what a privilege it has been to have the noble Baroness, Lady Corston, working so well with this sub-committee.
I have particular pleasure in following the noble Lord, Lord Blair, because I want to say something more about Europol, which is of course one of the success stories of the EU. Let us be thankful that it at least is one of the measures we propose to opt in to. From its beginning in the 1990s, Europol has developed into an organisation with an unrivalled intelligence base and close co-operation with the police forces of the European Union and indeed round the world, examples of which the noble Lord gave. It is fortunate currently to have an outstanding director, Rob Wainwright of the United Kingdom, from whom Sub-Committees E and F heard evidence on two occasions in 2013.
It is important to note that no national police sovereignty is ceded to Europol. The role of Europol is purely supportive. Its effectiveness centres round its database, to which the UK is the largest contributor. Of its many successes in cross-border operations, Mr Wainwright cited Operation Rescue over two years, which involved 32 national police forces in breaking up an internet child abuse ring resulting in over 100 arrests. Another measure of its success is the number of states outside the European Union queuing up to join Europol, including the United States. A particular feature of the Europol set-up is the establishment of national liaison offices within its headquarters, staffed by police officers from each particular member state. Most importantly, it is run on a very lean budget of 0.8% of the total EU budget.
As I have said, the Government have made the decision to opt in to Europol. However, at our first meeting with Mr Wainwright in January 2013—that is, before the Home Secretary’s announcement—both Sub-Committees E and F, because it was a joint meeting, were left in no doubt of the adverse consequences there would have been for the UK had we not opted in. Denial of automatic access to the database would have been a huge handicap involving costly and time-consuming negotiations between the UK, the union and other parties to establish some form of substitute relationship, and it is reasonable to assume that crime prevention with a cross-border element would have been severely affected in the United Kingdom. Of course, none of this will now be necessary so, so far, I have little to criticise the Minister on.
I return to a point referred to by the noble and learned Lord, Lord Lloyd of Berwick. I would just point out that Sub-Committee F expressed disappointment with the Government that, having made the decision, they have chosen not to opt in fully forthwith so that they can play a fuller part in negotiations over a new Europol structure. The Government’s reply to this criticism in our report advises,
“we are actively seeking changes to the new Europol proposal to address these points before making a decision on whether to opt in”.
It goes on:
“We are currently fully engaged in negotiations and continue to work with other Member States to push for the changes we need. We have been present at all meetings when changes to the draft legislation have been discussed and are able to intervene as and when we wish”.
I cannot avoid further quoting so that we sleep easy in our beds:
“While we do not have a vote, other Member States and the EU Institutions value our experience in this area and take our concerns very seriously”.
I am sure Her Majesty’s Government have their own reasons for this somewhat “now we’re here, now we’re not” approach, and I hope the Minister will be able to assure the House that the interests of the United Kingdom in this most important of European institutions, in which it plays so crucial a part, are indeed being fully addressed.
Baroness Prashar (CB)
My Lords, I am a member of EU Sub-Committee F, which is chaired by the noble Lord, Lord Hannay of Chiswick, and I thank him for introducing this debate and for his masterly, clear and comprehensive exposition of this complex and difficult subject and the issues at stake. I agree with what the noble Lord said and the questions he posed the Minister.
As we heard, the scrutiny of the Government’s opt-out decision was conducted jointly by Sub-Committees E and F, and I express my thanks to the noble Lords, Lord Hannay and Lord Bowness, and the noble Baroness, Lady Corston, for their skilful chairing and for enabling the EU Committee to publish the two reports, which the Government have described as,
“an extremely thorough analysis of a complex issue”.
It is, therefore, extremely disappointing that we are debating these two reports so late in the process, when substantive decisions have more or less been taken. Justifiable criticisms have been made by the noble Lord, Lord Hannay, and others about the way the Government have engaged with Parliament, and I very much hope that for the rest of the process there will be timely, proper and meaningful engagement with Parliament and the devolved Administrations.
During the course of our initial inquiry, it was notable that the extensive evidence we took was so overwhelmingly in one direction; that is, opposed to opt-out. The most compelling evidence came from practitioners. As something of a newcomer to the Select Committee, I began to wonder whether the whole thing was necessary. I knew the Government had the right to look at it, but I began to wonder whether, before making the announcement, they should have consulted and saved themselves a great deal of unnecessary work and the unnecessary anxiety that has been caused.
The most compelling evidence came from practitioners. At a seminar organised by the EU Select Committee, Helen Malcolm QC, vice-chair of the Bar Council’s EU law committee and chair of its criminal law sub-committee, said that, as a lawyer and not a politician, she considered it remarkable that every witness with experience in the criminal justice field had considered some of the measures to be vital and that it was equally remarkable that no measure had been identified by anyone as being bad for the UK.
We now have the Government’s response to the two reports. They agree with the conclusion of our first report that cross-border co-operation between the UK and other member states on police and criminal justice matters is crucial. Furthermore, the Command Paper published in July 2013 assessed none of the measures as being harmful to UK interests or having any negative impact on fundamental rights.
The Lord Chancellor and the Home Secretary say that the decision to rejoin 35 measures is based on what law enforcement agencies tell them works, balanced against the Government’s principled concerns about excessive European influence in these areas. A close examination of the reasons why the Government do not intend to opt into some measures, however, shows that concerns about excessive European influence are a dominant factor, rather than the views of the practitioners and the importance of the cross-border co-operation. The grounds on which the Government have made the selection of measures not to join are not necessarily based on evidence or persuasively argued. In some instances, their approach is inconsistent. In the words of the Lord Chancellor and Secretary of State for Justice, they are “philosophical”, and not based on evidence one way or the other.
This inconsistent approach is clear in the case of the Court of Justice of the European Union. Despite expressing concerns about the potentially negative impact of extending the jurisdiction of the CJEU over the measures, the Government have opted into most post-Lisbon police and criminal justice measures, thus bringing with them the jurisdiction of the CJEU. During our initial inquiry, we considered this matter in some depth. We concluded that the CJEU, which has jurisdiction only over matters of EU law, had an important role to play, alongside domestic courts, in safeguarding fundamental rights and upholding the rule of law. CJEU jurisdiction was welcomed by many witnesses as being helpful in ensuring the consistent application and interpretation of police and criminal justice measures, and this is accepted by the Government.
The Government cite the prospect of unexpected judgments, concerns about the drafting of measures, and minimising the possibility of an adverse judgment as reasons for not accepting the full jurisdiction. Any court is liable to make unexpected judgments. Citing poor drafting of measures as a reason for not joining is not convincing, given the rigorous process of negotiation to which these measures were subject and the fact that they were supported by the Government at the time of their adoption.
With regard to minimum standards in criminal law matters, it appears that the Government regard participation in such measures as unnecessary, in the sense that the UK could continue to act in such a way as to fulfil the requirements of each measure even if it did not formally participate in it. This argument does not take into account the fact that any future Government could repeal decisions that made the UK compliant with the current minimum standards. The Lord Chancellor sees these measures as “the Europeanisation of” legal “decision-making” and underplays their practical significance.
For example, Europol said that the minimum-standard measures act to level the playing field for practitioners and eliminate arbitrary differences between jurisdictions. Europol also said that UK’s withdrawal from these measures would remove legal certainty and create a perception among law enforcement practitioners and criminals that the UK is outside the zone of co-operation—co-operation which the Government see as crucial.
In the long run, opting out of these measures would also affect the UK’s ability to influence and participate in law enforcement co-operation. It would diminish the UK’s position and reputation, particularly in areas where it has been a leader. One such measure, which has already been mentioned, is the framework decision on xenophobia and racism. The UK is a world leader in this area and deserves a great deal of credit for its commitment to, and strategy for, tackling racism and xenophobia. We have set a standard, and withdrawal from these measures will send a negative signal, not least to the minority communities in this country, and will inhibit our ability to influence other member states. I therefore urge the Government to review their decision not to join this measure.
On the European Judicial Network, the Government are again at odds with the view of practitioners. The Government say that the European Judicial Network adds little or no value and state that while they believe that the ideas underpinning the network have merit, they do not consider that the network is a measure that underpins practical co-operation. Practitioners argue the contrary. The Law Society of England and Wales and the Law Society of Scotland say that the Government should seek to join this measure as it could help to address the lack of training and awareness of legal practitioners regarding police and criminal justice measures. This view was supported by the Bar Council and the Lord Advocate.
We were told that the network provides Scottish prosecutors with a rich source of advice on national law in other member states and is a valuable tool in the armoury of prosecutors. It is the practical co-operation that is valued by practitioners and the Government should pay heed to that. The Government’s reasons for not joining the European probation order also deserve comment. They say they support the principle behind this measure but do not consider that its benefits outweigh its risks. They say that no evidence has been put forward that outweighs their concerns. The Government’s concern that offenders might not be properly supervised by other countries and that there might be complications should their possible return to the UK arise, can be resolved, as we stated in our report, at European level. Furthermore, the Government have not dealt with the point put forward by the Law Society of England and Wales and the Law Society of Scotland that joining this measure could prove a useful alternative to a European arrest warrant being issued for a sentence imposed in default, thus reducing the potential number of European arrest warrants issued.
In the evidence that we heard, we were also told that this measure would be helpful to offender management and public safety, between Northern Ireland and the Republic of Ireland in particular, and that because there was no meaningful consultation, the unique relationship between the two states has been ignored. This deserves further consideration. Finally, I hope that the Government will take note of the points made in our report about coherence, transitional arrangements, negotiating process and future engagement with Parliament, as well as the comments made by the noble Baroness, Lady Corston, and the noble Lord, Lord Sharkey, about impact statements.
Baroness Smith of Basildon (Lab)
My Lords, this has been an extremely interesting debate. I express my gratitude to the committee and to the noble Lord, Lord Hannay, my noble friend Lady Corston and the noble Lord, Lord Bowness, who cannot be with us today, for their roles in chairing the sub-committees. Although this is the first opportunity for a formal debate on the initial report, we have used that document to inform other debates on this issue. It has been extremely valuable, not just for the debate but for anybody wanting a greater understanding of the issues involved in opting out and opting back in again. I welcome the fact that we have a debate, at last, on the first report and on the follow-up.
Too often it seems to me that debates on anything to do with Europe become pro/anti debates without any real regard for some of the very serious issues involved. That must be very frustrating to many people who may not themselves be intensely political but who want to know and understand what the debate is about. I feel that many politicians would do far better to deal in fact rather than just try to persuade others of their own point of view. These reports clearly fulfil that function of trying to deal purely in facts. They provide a forensic and comprehensive examination of the Government’s decision to opt out of all pre-Lisbon police and criminal justice measures and then seek—and “seek” is the operative word, since there are no guarantees—to opt back in to those that they consider to be essential.
These are not decisions to be taken lightly. A Government’s first duty is to the security and safety of their citizens and, as the noble Lord, Lord Blair, and others make very clear, that security and safety is best served by European co-operation. The Government have to accept that the process of opting out and then, perhaps, opting back in again to some measures is a risk. I share the concerns that the Government’s whole approach to this issue has been more political than practical. No evidence has ever been presented of any harm to the UK from not exercising the permanent opt-out, but a great deal of harm is possible from any failure and delay in opting back in to the 35 or more measures in the analysis given by the committee. It seems to me, as has been said by other noble Lords, that it has had a lot more to do with placating the anti-European lobby inside and outside the Conservative Party. We have had the absurdity of the numbers game between the two government parties about how many measures should be opted back into. Surely, it has to be about the substance and value of the measures, not how many. The first report came to the conclusion that the case had not been made for triggering the permanent opt-out. That was repeated following investigations that led to the follow-up report.
Like the noble and learned Lord, Lord Lloyd, I also looked at previous debates, not so that I would not say something different but to make sure that I was not repeating myself. However, I will repeat myself in this case, as in previous years I have asked different Ministers the same questions but never had a satisfactory answer. Those questions are: how many of the measures that the Government want to permanently opt out of are relevant to the UK? How many are currently being used? I should add, how many are in any way harmful to the UK? If I can get an answer to those today, it would be extremely useful. What I am trying to get to, in an easily understood format, is what the precise impact would be on UK citizens of the measures that the Government want to permanently opt out of. The Government themselves claim that a number of the measures are defunct, so have no impact. So was this ever a serious exercise, or was it always political posturing on Europe?
I am grateful to the committee for the very helpful table at the back of the second report that gives details, including most of the information for which I have asked Ministers on more than one occasion. The follow-up report gives more specific information on the committee’s analysis of those measures. The committee clearly shares my frustration at how the Government presented this information and their assessment of the measures. Paragraph 19 of the follow-up report in response to the Government’s evidence and comments on that is devastating for the Government:
“In our view, this lack of analytical rigour and clarity regarding evidence drawn upon is regrettable. Despite the length of its gestation, Command Paper 8671 showed signs of having been hastily put together. We are disappointed that the Command Paper presented both the 35 measures which the Government intend to rejoin and the 95 they do not intend to rejoin in an unconvincing manner. We regret that the grounds on which the Government made their selection of measures to seek to rejoin were not set out persuasively in the EMs”—
that is, the explanatory memorandums. That is a devastating critique of the Government’s process.
The committee is also highly critical of the Government’s engagement with Parliament. Noble Lords will recall the dismay of your Lordships’ House on the day of the debate, 23 July, when the government response to the initial response was so obviously rushed out just hours before the debate started. Comments that it had been delayed to produce a more comprehensive report did not appear evident from the content or style of the report.
I hope the Minister will take back to the Government the point made by the noble Lord, Lord Jopling, that this House takes these matters very seriously and it wishes them to be taken seriously by government. We want the time to fully consider the implications and to digest and consider government reports. Obviously, nobody wants to see undue delays in consideration, but a House that has the duty of scrutiny and takes that responsibility seriously is understandably offended if unable to adequately fulfil that function. The report does not suggest a timescale but it does indicate what information would be useful, and perhaps essential, in allowing for proper consideration and decision-making.
I want to turn to some of the detail of the follow-up report and the specific measures referred to. As the report reminds us, your Lordships’ House previously endorsed the 35 measures that the Government will seek to rejoin as being in the national interest, and the report welcomes the other opt-ins announced by the Government. Perhaps the most significant and the greatest debate in your Lordships’ House is on the European arrest warrant. We found it inconceivable that the Government wanted to opt out, and I have previously provided examples of cases in your Lordships’ House where it had been invaluable. In a previous debate, I was also critical of the Government’s refusal to implement the European supervision order, which ironically had caused some of the problems about which the Government complained in the European arrest warrant. As I said before, we accept that there were problems and will further consider the Government's proposed reforms, as the Government have now recognised that reform is the way forward and are not just dismissing the EAW as worthless. We also welcome that the Government have now agreed to implement the ESO, so that it is easier for those bailed outside the UK to be brought back and bailed in the UK.
I shall now turn briefly to other areas in which the committee recommended an opt-in. Its argument in each of those areas is that there is a case for saying that the national interest would be best served if the UK were covered by the measures. Clearly, the Government do not accept those arguments, and I would find it helpful if the Minister could expand on the reasons why they support a permanent opt-out from those measures, particularly as there is a recurring theme—from the committee, from noble Lords who have spoken in the debate and from others—that the Government’s explanatory memoranda were inadequate.
The noble Baroness, Lady Prashar, and the noble Lord, Lord Davies of Stamford, spoke about action to tackle racism and homophobia, and the fact that the UK has been a world leader and a trailblazer on this issue. The concern raised is about the message that the opt-out sends, and whether it is appropriate that, as a world leader and trailblazer, we should step back and give the impression that this matter is not as important to us as it is to other European countries.
Another issue of concern in judicial areas, which was raised by the noble and learned Lord, Lord Lloyd, is the European Judicial Network. I am not a lawyer, but I found it interesting to note that the Law Society of England and Wales and the Law Society of Scotland both recommended opting back in, specifically referring to their view that it would help address lack of training and awareness. The network was supported by the Lord Advocate as frequently being used to seek assistance with overseas European arrest warrants. I would welcome a response from the Minister on this subject, because I am not clear whether the Government are saying that it is not valuable, or that the points are being fully addressed in other ways. I would like some clarification of why the Government think it would be harmful, or prejudice the UK’s interests, if we were part of the European Judicial Network.
I would also be grateful to hear far more from the Minister about the proposed permanent opt-out from the European probation order, which the noble Baroness also mentioned. It has had broad support in the legal profession, and the Northern Ireland Justice Minister considers that it would be particularly helpful in relation to border issues between the Republic of Ireland and Northern Ireland. I have to ask the Minister a question, which the noble Lord, Lord Hannay, mentioned specifically: what consideration did the Government give to the part of the UK that has a common land border with another country? It is of interest to hear the detailed arguments on this subject, particularly given the submission by David Ford, the Justice Minister. The noble Lord, Lord Hannay, expressed his concern about the lack of consideration by the Government of such cross-border issues. The European probation order is a significant measure, and I am not yet convinced that the Government have made a powerful enough case for a permanent opt-out. I have to ask the Minister: did the Government’s proposed privatisation of the probation service have any bearing on this decision?
We have heard from other noble Lords about driving disqualifications, and the committee has, very reasonably, asked the Government to reconsider their position on this subject. As a Northern Ireland Minister I had responsibility for road safety at one point, and a significant issue then—it remains one now—was the difference in regulations, penalties and offences between the two jurisdictions. I welcome the fact that the Government are committed to introducing legislation to deal with those, but why are such considerations important for that border but not for those between other European countries? I know that the Government have cited costs, but can the Minister say more about what those costs are, given that we are talking about an important area of public safety, and that we are already taking steps with regard to Northern Ireland?
I shall not go into detail on all the other committee recommendations, because in conclusion I want come back to the subject of process. As the Government move into negotiations, these will have to be intense and focused. Where the Government want to opt back in, it is clear that that needs to be done as soon as possible. What consideration has been given to any interregnum there may be, and what mitigating measures might the Government introduce in such cases?
I entirely agree with the committee about keeping both Houses informed. The committee recommends regular reports, but I must express my concern that “regular” may mean something different to the Government from what it means to the committee. We have been through this before—for example, when we expect a report to be presented in the spring, and then spring moves into summer. Regular reports to Parliament would be very welcome. Can the Minister confirm that that will be the case, and tell us what timescale and method the Government are considering?
The idea, put forward in the report, of a review of the operation of the opt-outs, and of what happens when we opt back in again, is also welcome. What plans are in place to assess the impact? Without greater clarity at the beginning of the opt-out process about the opt-in process, the exercise has always been, and remains, a bit of a gamble.
I greatly welcome the committee’s report but the part I quoted, which has given me the most cause for concern, is its paragraph 19 about the,
“lack of analytical rigour and clarity”,
in the evidence on which the Government have based their decision. I agree that that is deeply regrettable, especially on such important issues as policing and criminal justice, which strike at the very heart of a Government’s first duty to their citizens—that of ensuring their security and safety. I hope that the Government will take note of, and respond in a positive way to, the criticisms and act differently in the future to ensure proper and beneficial consideration of their proposals. In future, I hope that when we have such reports before us we will have timely debates, because these debates contribute enormously and would help the Government in decision-making.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, before I tackle the issues raised in this debate I extend my thanks to the European Union Committee of this House for its ongoing work in this matter. This Government are extremely grateful to the committee; we do not necessarily agree but we are grateful for the work that is being done. I join the noble Baroness, Lady Smith, in the comments that she made about its work. The committee informs this House and the Government, and I am aware of the diligence with which it undertakes its work. We are aware of the role that Parliament has in scrutinising these matters and it should do so informed by the work of its committees, so I pay a genuine tribute to them all.
The committee’s initial report was helpful in informing the Government’s decision about the measures that we are seeking to rejoin, and I found its follow-up report to be particularly thought-provoking. Taken together, and it has been useful to be able to do that today, these two reports represent an extremely thorough analysis of a complex issue. The committee has produced a formidable body of work for the Government to consider.
On 23 July, I set out to the House my openness to debating the committee’s report. I thank the noble Lord, Lord Hannay, for making that possible by calling this debate today. I also thank him for his excellent work and insight into this matter as chairman of the sub-committee. The Government are appreciative of the committee’s continued scrutiny of these important matters and I thank the noble Lords, Lord Boswell and Lord Bowness, neither of whom are in their place today, and the noble Baroness, Lady Corston, for their chairmanship of the committees. These are sincere thanks, in which I join with the tribute paid to their work by the noble and learned Lord, Lord Lloyd.
I hope that noble Lords will accept that some of the questions I have been asked are complex and difficult. I do not want to mislead the House in any of my responses and with the consent of the noble Lord, Lord Hannay, I intend to write to him and to copy in all noble Lords who have spoken in this debate, and place a copy of that in the Library. This will enable me to deal with those matters which I am not necessarily able to deal with today. I hope that noble Lords will appreciate that type of commentary, which we have had before when discussing these issues.
Scrutiny can be an iterative and long-running process, especially on a matter such as this. Some have argued that the Government have not made the case for exercising the opt-out. On that point, I think we have to agree to disagree. The case for exercising the opt-out has been clearly set out and, as the noble Lord, Lord Hannay, set out in his opening speech, the House has already endorsed the Government’s decision. The House has also endorsed the Government’s decision to seek to rejoin the 35 measures set out in Command Paper 8671. I am pleased that the committee is persuaded by the evidence that the Government have set out to Parliament. I am also pleased that the committee has reopened its inquiry. Its views on the measures that we are not seeking to rejoin are welcomed and the Government have responded in full on those issues.
Before I turn to the points raised during the debate, I reiterate the Government’s commitment to holding another vote on the final package of measures that we will apply to rejoin.
Lord Elystan-Morgan (CB)
Does the noble Lord, for whom I and everyone here have an immense respect, agree that the whole issue can be distilled into a single question: how is it sane and sensible and sincere for the Government to place in jeopardy 35 measures of considerable worth in the expectation of, at best, a minuscule advantage in respect of 95 other matters that are either wholly irrelevant, non-operative or in no way injurious to our interests? I respectfully suggest that that is the issue.
Lord Taylor of Holbeach
As the noble Lord knows, the Government are exercising an opt-out that was provided for by negotiations by a previous Government. Noble Lords will expect the Government to exercise their discretion in this matter and to seek the endorsement of Parliament, as they have done on this occasion. I make no apology to the noble Lord for the decision that this Government have made. It was a decision that was anticipated by the previous Government in their negotiations.
As I was saying, before I return to the points raised, I confirm that there will be another vote on the package of measures that we will apply to rejoin. It is important that Parliament is given the opportunity to scrutinise this matter fully. I am very happy to commit myself to replying for the Government during that debate later this year.
I start by responding to some of the points of the noble Lord, Lord Hannay, in his excellent speech. I could not agree with all that he was saying about the Government’s performance or decision-making or role, but he set out a number of important points that have helped to guide this debate and I am happy to reply to them.
The noble Lord, Lord Hannay, and my noble friend Lord Sharkey addressed the point of whether there are measures that are detrimental to the UK and the UK’s national interest. The noble Lord, Lord Davies of Stamford, asked if this were the case. That is one way to assess these measures. However, is not the way in which the Government have assessed them. The Government have looked at how each measure contributes to public safety and security, whether practical co-operation is underpinned by the measure and whether there would be detrimental impact on such co-operation if pursued by other mechanisms. We have considered the impact that the measure has on civil rights and liberties. We believe that the 35 measures that we are seeking to rejoin meet these criteria.
The noble Lord and the noble and learned Lord, Lord Lloyd, asked why the Government have opted in to post-Lisbon measures if we have concerns about European Court of Justice jurisdiction. The Government consider that there is always a risk attached in terms of European Court of Justice jurisdiction. All Governments have faced this when we decide to participate in measures—pre-Lisbon or post-Lisbon. However, in certain cases, it will be in the national interest for the UK to participate in these measures, and the Government will accept that risk, given the wider benefits of the instruments in question.
Lord Davies of Stamford
The noble Lord keeps on referring to the ECJ as a risk—as a cost, as it were. Is it not the case that it is also in many cases a reassurance and an asset? Over time, is it not the case that we have won far more cases before the ECJ than we have ever lost?
Lord Taylor of Holbeach
Of course, but I am just saying that there is an unpredictability about outcomes which all Governments have had to face, and it is a matter that Governments are entitled to weigh in the balance. However, I accept totally that the European Court of Justice also exists to protect things that we consider valuable, too.
The noble Lord, Lord Hannay, and the noble Baroness, Lady Smith, raised the importance of co-operation.
Lord Hannay of Chiswick
My Lords, I apologise for intervening, but I wish one could persuade the Government not to treat the unpredictability of a court of law as a reason not to be subject to its jurisdiction. I hope that every court of law in this country is unpredictable. If it were predictable, we would not have the rule of law in this country.
Lord Taylor of Holbeach
If I say that the noble Lord makes an academic point, I do not mean to dismiss it, but it is a point which is based on a theoretical view of jurisprudence. As a non-lawyer I would say that the law can have an unpredictability about it even in such well established legal proceedings as we have in this country. Indeed, I am sure that the noble and learned Lord, Lord Lloyd, will agree with that analysis.
I was about to talk about our co-operation with the Republic of Ireland. I felt that the noble Baroness and the noble Lord, Lord Hannay, made an important point. That is why we have engaged constructively with the Northern Ireland Executive and David Ford throughout this process. That is why we continue to hold productive discussions about these matters at all levels.
The noble Lords, Lord Hannay and Lord Davies, and my noble friends Lord Sharkey and Lord Bridgeman also raised the associated Europol measures. I should like to reiterate our support for Europol on its current terms and our intention to rejoin the main Europol measure. However, we do not believe that we need to rejoin the associated measures to do so. Many of the provisions in these measures are legal padding and duplicate the detailed provisions of the main measure. As a result, these measures have no material impact on UK participation or, for that matter, on any other state. They have no impact on our ability to co-operate with others through Europol.
The noble Lord, Hannay, my noble friend Lord Sharkey, and the noble and learned Lord, Lord Lloyd, also identified the probation order as one that we should seek to rejoin. The Government’s position on this measure is set out in full in the response to the committee’s report of 31 December. Only 12 member states have implemented this measure and, to the best of our knowledge, it has never been used. As a result, there is no clear understanding as to how this measure will work in practice and thus very little evidence on which to judge its effectiveness. That is why we are not seeking to rejoin this measure.
The noble Lords, Lord Hannay and Lord Davies, my noble friend Lord Sharkey, the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Smith, raised the issue of the European Judicial Network. As the Government set out in the response to the committee’s report, we believe that Eurojust is more effective than the European Judicial Network at bringing people together and ensuring that the right tools such as joint investigating teams are employed. That is why we are seeking to rejoin Eurojust.
A number of noble Lords raised the racism and xenophobia measures. These have also not been joined or opted out of, and we are not seeking to rejoin. Noble Lords know that this is a highly sensitive area. However, we are clear that our efforts—the noble Lord, Lord Davies, referred to our lead in these matters—to tackle racism and xenophobia do not depend on a measure that adds little practical value. The UK will continue to be bound by the International Covenant on the Elimination of all forms of Racial Discrimination, and the Government will continue to set a national direction and to work at local level with professionals, the voluntary sector and communities to deal with local issues and priorities.
A number of noble Lords mentioned the convention on driving disqualifications. Let me first address the point about ditching the benefits of working with 26 other member states. Currently, this measure only operates between the UK and the Republic of Ireland, so there are no benefits to ditch. However, there are benefits to the bilateral agreement with Ireland. This will allow us to address some of the weakness of the instrument as it currently exists, which we would otherwise be unable to do.
Lord Davies of Stamford
I am most grateful to the noble Lord for giving way a second time. In the light of what he says, would it not be sensible to extend the directive to include the continental countries? There is an enormous amount of motor traffic between us and them in both directions. As I said in my speech, if we want to protect people from disqualified drivers in Ireland, why do we not protect our people from disqualified drivers coming from the continent?
Lord Taylor of Holbeach
We will be free to do that in the future. I am just reporting the current situation to the House. We have the freedom to do what we will in the future. It is a question of whether we want to be bound by a directive which at the moment is actually not delivering what the noble Lord has suggested.
The noble Lord also asked for an update on our negotiations with the Commission to rejoin measures. I can confirm that these continue at the technical level, and there are a lot of technical discussions involved in these matters. We intend to update Parliament as appropriate, but we must be mindful that this is a negotiation, and thus we cannot prejudice our position in these negotiations. The noble Baroness, Lady Corston, my noble friend Lord Sharkey, the noble Lord, Lord Davies—
Lord Hannay of Chiswick
I would be grateful for a simple answer to a simple question. The Minister said that technical discussions had begun, and he did not wish to prejudice the position in negotiations. Have negotiations begun with the Commission and the Council, or have they not?
Lord Taylor of Holbeach
Exploratory talks have taken place and do so all the time. Formal negotiations have not started, and we need to be able to get some of the technical issues resolved before we enter into full negotiations. That is a reasonable position to take. Noble Lords would expect the Government to recognise their responsibility to the UK national interest in this respect. I hope that Parliament would understand the reasons why, at this point, the Government do not necessarily want to reveal the details of these negotiations. All I have said is that there will be opportunities, as these negotiations proceed, for reports to Parliament and for keeping Parliament and the citizens of this country informed about them.
There was a question about impact assessments, and I was going on to say that the noble Baroness, Lady Corston, was particularly concerned about the impact assessments of the 95 measures the Government will not seek to rejoin. I can confirm that it is the Government’s intention to provide, in good time, ahead of the second vote, an impact assessment on the measures that the Government will rejoin. I can also confirm that the Government will discuss the timing and format of the second vote with the chairmen of the relevant committees. However, at this stage, as the noble Baroness will know, we do not intend to provide impact assessments for those measures that we will not be joining.
I was asked what the Government’s view is of the legal test of coherence in Protocol 36. The noble Baronesses, Lady Prashar and Lady Corston, were both concerned about this. The Government consider that in a number of areas the case law of the European Court of Justice makes it very clear that coherence means “legally effective” and so takes us further than the test of practical operability, also in Protocol 36.
I conclude by referring to two speeches made by noble Lords sitting behind me. The first was by my noble friend Lord Jopling, who took the Government to task in a pretty straightforward manner. I assure him that I take my role in replying to the concerns of Parliament extremely seriously. I will do my best to ensure that the circumstances in which he found himself do not recur, but I can only do my best on that.
I have been handed a correction. The coherence test takes us no further, I am told. I apologise if I misread the messages from the Box but this one has come down in big block letters so that I can correct myself. I was seeking to reassure my noble friend about those matters.
I should also like to comment on the speech of my noble friend Lord Eccles. I felt that he placed the debates that we have in this House on our membership of the European Community in the context of our global life—the global existence of our country. It was an extremely valuable contribution and something which, when we deal with the detail of some of these matters, we should always bear in mind.
Perhaps I may say one further, rather personal, thing. I am committed to making a success of the dialogue between the Government and this House. Mention was made of tone and language. I make a plea to noble Lords: let us please try to keep this dialogue on a good basis. I will be as open as I can be with noble Lords and will seek, as best I can, to keep the committees informed, but it is a two-way street. I would hate to think that we ended up having adversarial debates on an issue which is so important to the future of this country. That is a personal plea on which I conclude my contribution to this debate. I will be writing to noble Lords and I thank all who have participated in what has been a very worthwhile evening.
Lord Hannay of Chiswick
My Lords, I begin by thanking all noble Lords who have participated in this debate. It has provided wide-ranging and effective coverage of a very complex subject, and I am grateful to your Lordships—both those who are and those who are not members of the two committees and the EU Select Committee.
I should also like to thank the Minister and to respond to his final remarks. He has, with the sincerity and good humour that characterise all his interventions in this House, drawn quite a lot of the sting from some of the very legitimate criticisms to which he has been subjected today. I hope he will reckon that he is held in great respect in this House by all Members and that that respect will be even more increased if he takes back the message from this House of the criticisms that have been levied, although not to him personally. I am grateful to him also for the offer to reply in writing. He has done this in previous debates and it is extremely valuable and welcome to all Members.
By necessity, this debate has been a great deal about process and technical detail and someone listening to it from outside might think that it was confusing. However, I wish to conclude by making a couple of remarks about the wider picture here. The internationalisation of crime is proceeding apace, and nowhere more so than in Europe. We may not have a perfect single market but the criminals have a single market from which they are not hesitating to benefit. We need, therefore, a far greater degree of international co-operation than we have ever had in the past. The legislation we have been discussing on which the Government have triggered the opt-out, the 133 measures, was not designed by a mad group of federalists in Brussels: it was designed by the Justice and Home Affairs Ministers of the member states and every single one of them was agreed by unanimity. We must get away from the mindset which says, “This is imposed on us by Brussels and we should get out of it if we possibly can and if it is not going to be too costly to do so”. That is not a good mindset.
The hard fact is that the security of this country neither begins nor ends at the water’s edge any more: it goes far wider than that. The justice and home affairs part of the European Union’s activities is of great value to this country, and it is likely to be of even greater value if we do not wreck it in the process of this tricky negotiation which we have now undertaken. It is an odd negotiation because, in all my years of dealing with the European Union, it is the first time a British Government have deliberately put themselves at a disadvantage and then asked to get back into many things. It is a fairly odd state of affairs for which, as I said in my opening statement on a personal basis, I do not entirely blame the present Government, who had that mechanism foisted on them by the previous Government.
However, whatever it was, it is an uphill task. I end with the following. I am sure that all noble Lords wish the Minister and his colleagues the best chance of success in the negotiations they are undertaking. I was shocked to hear that six months after the Prime Minister notified the other member states of our decision to opt out of these measures, we still had not begun negotiation. We have all been around long enough to know what exploratory talks mean—and they do not mean negotiation. I hope the noble Lord and his colleagues will shortly come to the House and tell us that we have begun negotiation. Six months out of the 16 available have now passed and they have not led to very much. Our wishes are with the Government that they have success in this negotiation. It is in none of our interests that they should be blocked or fail, but that may require more political involvement and effort and energy than they have shown so far. I beg to move.