European Union: Justice and Home Affairs
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Lord Faulks
That this House takes note of the United Kingdom’s 2014 justice and home affairs opt-out decision.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, 2014 is a critical year for Europe. Within weeks, we will have a new European Parliament and, within months, a new EU Commission. There can be no doubt that the face of Europe is changing, just as it has changed dramatically over the past 25 years.
One of the changes we want to see is the EU becoming more flexible. The Dutch express this as: “Europe where necessary, national where possible”. This is our approach when it comes to justice and home affairs. In some cases, there are clear benefits from working at a European level. In others, it makes sense to operate at national level. Noble Lords will be aware that, under Protocol 21 to the treaties, the UK enjoys the right to choose whether to opt in to new justice and home affairs measures brought forward by the European Commission.
The previous Government made a commitment to table a report every year on the operation of the opt-in. Because of this Government’s strong commitment to parliamentary scrutiny, we have maintained that pledge. We have published reports every year since 2011 on the matter and we have also included in those reports figures on the so-called Schengen opt-out under Protocol 19 to the treaties. This provision allows the UK to decide whether to opt out of Schengen-building measures. The latest report was published on 23 January this year. Part of the Government’s scrutiny commitment is that the report will be made available for debate—which is precisely what noble Lords are invited to do today.
Noble Lords will have observed that there are two Motions on the Order Paper. This Motion relates to the UK’s 2014 decision to opt out of all police and criminal justice measures agreed before the entry into force of the Lisbon treaty. This matter will be familiar to many noble Lords, for it has been subject to much debate in this House and the other place.
On 23 January this year, my noble friend Lord Taylor, who will respond to this debate, closed what was a most impressive debate in this House on the matter. Of course, the matter was debated at length last year when this House endorsed the Government’s decision to exercise the opt-out and seek to rejoin the 35 measures set out in Command Paper 8671.
The Government have also committed to returning to Parliament for a further vote before formally seeking to rejoin any measures. That vote will be held well ahead of 1 December this year. Before that, it is appropriate that Parliament is given every opportunity to scrutinise this important issue. That is why today we are providing noble Lords with additional time to look at the matter, as the Government recently did in the other place, and there will be additional time to debate the matter later this year.
I turn first to the annual opt-in report. The bare facts are these: in the period covered by the report— 1 December 2012 to 30 November 2013—the UK opted in to 13 proposals under the JHA protocol, and decided not to opt in to a further eight. Decisions on whether to opt in to a proposal are taken on a case-by-case basis, but some basic criteria are applied. For each measure, they are: what will be the impact on our security, on our civil liberties, on the integrity of our criminal justice system or on the ability for us to control our borders? How might our system of common law, shared by only a small, select group of other member states, be affected? Over and above everything else, what is in our national interest?
The report shows that last year, for example, we opted in to a Council decision relating to an agreement between the EU and Canada on the transfer of passenger name record data. Such data, known as PNR data, have real value in the tracking down of people suspected of the most serious crimes, and are already used by the UK in our border systems programme. Indeed, the provisions outlined in the Council decision are already in place, so here was a practical agreement, in the public interest, that the UK could support and be part of.
Other examples included proposals to improve insolvency proceedings, and a welcome and important clarification to the rules governing jurisdiction—as set out in the Brussels 1 regulation—which will make way for the creation of the unified patent court in January next year.
Noble Lords will also be aware that in August last year the Commission published a proposal for a European Public Prosecutor’s Office. The coalition agreement made it clear that the Government would not take part in the European Public Prosecutor’s Office, so we did not opt in. A centralised European prosecutor with harmonised powers to initiate investigations and order investigative measures is incompatible with the division of responsibilities in the UK between law enforcement and prosecutors and the role of the independent judiciary. The idea of a single legal area is an unwelcome move towards harmonisation. That is not to say that we do not wish to co-operate at all with our European partners in ensuring the prosecution of crime and the detection of offenders.
In addition, we do not believe that the EPPO is an appropriate or proportionate response to tackling fraud against the EU’s budget. A body working at EU level would, at best, duplicate the efforts of dedicated organisations working at a national level; at worst, it could hamper efforts to prevent fraud at national level. Reflecting that view, this House and the House of Commons shared the view that this was not something that was best tackled at EU level. Both Houses issued reasoned opinions that the proposal breached the subsidiarity principle. Simply put, that is the principle that, in areas of shared competence between the EU and member states where action can be taken at member-state level, it should be so taken. EU-level action should be reserved for those areas where it can genuinely add value.
I offer the European Public Prosecutor’s Office as an example—perhaps the most high-profile one—of where the Government have taken the view that it is not in the national interest to opt in to a measure. Others are set out in the report, but I know that many noble Lords will wish to bring their considerable expertise to bear on these issues so I will not detain the House any longer on the annual opt-in report.
I shall return briefly to the 2014 decision. I first express my thanks to the EU Committee of this House for its ongoing work in scrutinising this matter. It is an issue in which I know a number of noble Lords have taken a keen interest, and the Government are grateful to them for their work in this area and for the considerable expertise that is brought to bear on the consideration of relevant issues. We are grateful not least to the noble Lords, Lord Hannay and Lord Boswell, and the noble Baroness, Lady Corston, for their ongoing analysis of an extremely complex issue. Their committees have produced two extremely thorough and valuable reports on this subject and I want to express my thanks on behalf of the Government for their chairmanship.
I turn to the progress on negotiations to seek to rejoin measures. I pause at this stage gratefully to acknowledge that the noble Lord, Lord Hannay, was good enough to provide an advance indication of the remarks that he proposes to make in this debate. I know that one area that he—and, I am sure, other Members of the House—will raise is the possibility, to put it crudely, of the Government dropping the ball during the negotiations. I will endeavour to say what I can about that in my following remarks.
The process for rejoining measures depends on whether they are classified as Schengen or non-Schengen measures. On the Schengen side, a Friends of the Presidency working group has been established in Brussels to discuss all the issues for member states, linked to the end of the five-year transitional period set out in Article 10 of Protocol 36. This working group will also allow us to discuss the Schengen measures which we are seeking to rejoin and agree the decision which will allow us to do so formally.
The House will doubtless be anxious for me to address the question of what other member states have said about our package of measures. They have been broadly supportive of the UK’s position. There are of course many technical matters that are subject to discussion. These include whether measures are now obsolete or whether, and to what extent, new measures will replace old ones. That is precisely what this working group has been set up to do. At the appropriate time, when a conclusion has been reached, we will update Parliament on these matters—but, as I am sure the House will understand, it would not be appropriate to do so now when there are still discussions to be had.
Discussions with the Commission on the non-Schengen side are also ongoing. As we are sure noble Lords will also appreciate, this is a particularly complex matter and a great many process and technical matters have to be discussed. We must be mindful that this is a negotiation and, as such, we do not wish in any way to prejudice our position in these negotiations. To do so would not be in anyone’s interest. However, I can say that these discussions have been very constructive and our aim remains to reach an in-principle deal well ahead of 1 December, and return to Parliament for a further vote before formally seeking to rejoin measures. We want to ensure that there are no operational gaps, and our European partners appreciate this. That is perhaps reflected in the fact that we exercised the opt-out in July 2013—although the deadline was May of this year—to give us enough time to undertake these negotiations.
The Government have been clear throughout this process that Parliament will be given a vote on the final list of measures that the Government apply to rejoin, and I am happy to repeat that commitment today. Scrutiny can be an iterative and long-running process, especially on a matter such as this. That is why we will debate the matter at length again later in the year and why we have committed to producing a full impact assessment on the measures we seek to rejoin in good time, before a second vote. It is important that Parliament is given the opportunity to scrutinise the matter fully. I look forward to hearing the contributions of noble Lords when we return to Parliament later in the year.
Perhaps I may return to the main business of the day, the annual opt-in report. I commend this report to the House and look forward hearing your Lordships’ views on its content.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I am delighted to reply to this debate. I enjoy always talking about this issue as we hear good speeches from all sides of the House and there is plenty to debate, of course.
Before addressing the particular points made in the debate, I join my noble friend Lord Faulks in expressing my gratitude for the work done by this House and by those responsible in the European committees in scrutinising this area of our activity. These are important matters that we are debating today. I thank all noble Lords for their contributions to what has been an engaging and constructive discussion.
The Government are fully committed to engaging with Parliament on European Union issues and I greatly appreciate the opportunity to do so. The debate has focused on two separate but equally important matters: the fourth annual opt-in report on post-Lisbon police and criminal justice measures and the UK’s 2014 opt-out of all pre-Lisbon police and criminal justice measures. Both matters raise important questions about the protection of human rights and the ability of our law enforcement agencies to work with their EU counterparts to keep British citizens safe.
If I may, I will address, first, the matter of the UK’s opt-in to post-Lisbon police and criminal justice measures. I hope that it will help my noble friend Lord Bowness in his confusion if I say that we in Parliament have endorsed the coalition’s approach to this issue. As my noble friend Lord Faulks set out earlier, the Government have been clear that they will take opt-in decisions on a case-by-case basis. We consider factors such as the impact of the measures on our security, civil liberties, the integrity of our criminal justice and common law systems and on the control of immigration. At the heart of it all is a commitment to focus on the national interest. My noble friends Lord Teverson and Lord Dykes asked me whether I could define it. It is like one of those things that you meet upon the road. The best essay I can present is that I hope I will recognise it when I see it. As such, we will opt in only when we believe it is in the UK’s interest to do so.
The noble Lord, Lord Pearson of Rannoch, has a different view. I believe that his absolute approach is not in the national interest. But the fact that he is wrong—or I believe him to be wrong—does not mean that we do not enjoy his contributions to our debates. The question that he raised on the referendum issue actually occurred in a previous debate and I gave a clear answer then:
“The European Union Act sets clear criteria for when a referendum would be necessary. These are set out in Section 6 of the Act. This decision is not one of the areas where a referendum is required. Changes to the Treaty on European Union, the TEU, or the Treaty on the Functioning of the European Union, the TFEU, or a decision made under Article 48(6) of the TEU potentially attract a referendum under the European Union Act 2011. The 2014 decision is not a treaty change, nor a decision under Article 48(6) of the TEU. Instead, it is something that flows from the existing treaty and, as such, it is not subject to a referendum. I hope that that categorical assurance reassures the House”.—[Official Report, 23/7/13; col. 1281.]
It clearly does not reassure the noble Lord.
Lord Pearson of Rannoch
The noble Lord is wriggling. The noble Lord is practising almost dishonest sophistry.
Lord Pearson of Rannoch
Almost. We have been promised a referendum again and again in the examples that I gave—first of all by his leader, Mr Cameron, before he became Prime Minister, in the Queen’s Speech in July 2010 and then in the Referendum Act 2011. Everyone understands that to mean that if there is a transfer of sovereignty to the European Union, we would get a referendum. It is not good enough to go into the intricacies. None of those statements said, “This requires treaty change”, or anything of that kind. It is quite simple. Everyone understands that if we give powers back to Brussels, we get a referendum.
While the Minister is at it, will he answer one of my other questions? If there were to be a referendum on these opt-ins, particularly on the European arrest warrant, which way does he think people would vote?
Lord Taylor of Holbeach
I always have difficulty in trying to persuade the noble Lord on this issue because he clearly has a very different opinion. I would just say that the opt-out position was exactly that. We were already involved. The treaty decisions had been taken in that respect. I am perfectly accurate in the answer that I gave him. If the noble Lord wants a referendum he should vote for the Conservative Party at the next election because we have offered a referendum in the case of a successful outcome for the Conservative Party at that time.
The noble Lord also asked about the European public prosecutor and used that as a sign of the future direction of the EU. I must say to the noble Lord that the UK negotiated an opt-in to ensure that where a proposal is not in the UK’s national interest, we do not take part. The ability of Parliaments to issue reasoned opinions on subsidiarity issues related to Commission proposals is a further check on the Commission’s bringing forward proposals outside the intent of those treaties. I hope that the noble Lord will consider what I have said and see exactly how the Government are approaching this issue.
I thank the noble Lord, Lord Hannay, for providing us with a draft of what he was going to say because that enabled us to focus on those particular interests. I will attempt to respond to them. He asked, first, whether the Government will opt in to the Europol regulation post adoption. The Government did not opt in to the Europol regulation initially due to concerns about the obligation to provide data, even where it may conflict with national security. I think I have made that clear before. As the regulation makes subject to the jurisdiction of the European Court of Justice member states’ reasons for not undertaking an investigation requested by Europol, this creates a risk that the Court could dictate national law enforcement priorities. The Government have committed to opting in post adoption if these concerns are mitigated. That is our intention, and I explained it when we debated this issue previously.
Secondly, the noble Lord asked whether it is the Government’s intention to opt in to the proceeds of crime directive post adoption. We did not opt in to this measure as we had concerns that the directive would interfere with the workings of the Proceeds of Crime Act 2002, thus reducing our ability at home to tackle serious and organised crime. As noble Lords will know, under the Proceeds of Crime Act it is possible to seize assets illegally obtained where no conviction has been secured. That is not possible under the directive, and we feel that that is a deficiency in its case. This Government would want the UK and other international partners to utilise the most effective legal powers to disrupt individuals who seek to hide the proceeds of crime across borders both in the EU and beyond. We will be considering whether to opt in to the measure now that it has been adopted, including considering the opinion of the EU Committee in this regard.
In relation to readmission agreements, participation in these agreements is considered on a case-by-case basis according to the priority attached to the country concerned in the area of immigration returns and the existing bilateral relationship with that country. Should the UK choose not to participate in an agreement and circumstances change, the UK can seek to participate in it post adoption. With respect to Turkey, the UK opted in to the conclusion of the readmission agreement between the EU and Turkey in June 2012. I understand that Turkey is currently passing the agreement through its Parliament and we expect the Turkish authorities formally to adopt it this year.
The noble Lord also raised concerns in relation to the Kosovo association agreement and the European police college proposal. The unfortunate instance of missing the opt-in deadline occurred in the case of the Kosovo framework agreement on Union programmes, not the stabilisation and association agreement with Kosovo. The regrettable combination of circumstances that lead to this oversight has been addressed, but lessons have been learnt for subsequent framework agreements of a similar nature and the opt-in has and will be asserted in those cases.
In relation to the CEPOL proposal, the Government informed the presidency of our opt-in decision on the deadline itself, which was 13 March. Paragraph 10 of the Code of Practice on Scrutiny of opt-in and Schengen opt-out Decisions commits the Government to notifying the parliamentary scrutiny committees of an opt-in decision as soon as we have informed the presidency, but not to doing so earlier. Although I believe that we have therefore complied with our notification commitments, I wish to emphasise that we would usually seek to provide the committees with an indication of our opt-in position and regret that the internal processes did not allow that to happen on this occasion. I should like also to reiterate at this stage the Government’s commitment to ensuring that the EU Committee in this place has the appropriate time to provide an opinion on the UK’s opt-in decisions. The noble Lord, Lord Judd, is right. I recognise that the Government do not always meet this commitment and I think noble Lords will know that it is my intention for us to achieve a better performance in this area. As my noble friend Lord Boswell observed, it is not always easy to spot justice and home affairs content, particularly when the general focus of a measure is not JHA-related. However, we are raising awareness across government at official level. There have been senior-level discussions, new guidance is being circulated and we will be rolling out more bespoke training in the next few months. We hope that this will improve areas where this circumstance has arisen in the past.
I now return to the matter of the UK’s opt-out of pre-Lisbon police and criminal justice measures. First, I join my noble friend Lord Faulks in thanking the noble Lords, Lord Boswell and Lord Hannay, and the noble Baroness, Lady Corston, for their chairmanship of the EU Select Committee and the two sub-committees they represent here today. The committee’s two reports represent an extremely thorough analysis of complex issues and the Government are greatly appreciative of its efforts. I thank all committee members for their work in that respect.
Scrutiny can be an iterative and long-running process. The Government have already taken a number of steps to ensure that Parliament’s views on this matter are heard and understood. However, before I turn to the points on the 2014 measures raised during the debate, I would like to reiterate the Government’s commitment to continuing parliamentary scrutiny of this matter. As my noble friend Lady Hamwee said, we will hold another vote later in the year on the final package of measures that we will apply to rejoin. We will publish impact assessments on each of these measures in good time for that vote. For noble Lords who have expressed concerns about the quality of the impact assessments and Explanatory Memoranda, they are objective judgments and are drawn up in line with government guidelines on those matters. I am very happy to commit myself to replying to that debate when it happens later in the year.
I will respond to some of the points that the noble Lord, Lord Hannay, made in his excellent speech. He set out a number of important points that have helped guide this debate and I am happy to respond to each one. The noble Lord asked about timings on this matter. We are aiming to reach an in-principle deal with the Commission and other member states as soon as possible. Other states support this aim; they are with us on this strategy and are keen to resolve the issue in a timely and orderly fashion.
The noble Lord, Lord Boswell, and the noble Baroness, Lady Corston, both asked about my assessment of progress. My noble friend Lord Faulks and I will update the House and its committees when we can. I am by nature an optimist—as I think most noble Lords will know—and the House might therefore expect me to say that we are satisfied with the general progress of the negotiations. I am happy to reiterate the Government’s commitment to hold a second vote before seeking to rejoin measures. We certainly hope to hold the vote ahead of the House rising for the Summer Recess, but we are not in a position to confirm that. However, I can confirm that we will hold the vote well ahead of 1 December.
The noble Lord, Lord Hannay, asked about the timescales for providing impact assessments on the measures that we are seeking to rejoin and those that we are not. I think we know that there is a difference of view in this area because the Government remain committed to providing an impact assessment on the final package of measures that we are seeking to rejoin, and this will be provided in good time ahead of the second vote.
I thank the noble Lord, Lord Hannay, for his patience in waiting for this matter to be answered, but the Government do not intend to provide impact assessments on the measures they are not seeking to rejoin. This is because the starting point for any analysis is that the opt-out has been exercised, and not seeking to rejoin a measure will not have a direct impact on the UK. I expect that the noble Lord, Lord Pearson, will actually agree with me on that point. Noble Lords will be aware that the original decision was accompanied by a White Paper covering all the issues that were raised by the opt-out.
Lord Hannay of Chiswick
The legislative history of this matter is very tangled. Perhaps the noble Lord will reflect on the following. When his colleague, James Brokenshire, gave evidence, I think at the end of 2012, he committed to producing an impact assessment. That commitment was not limited to the measures that the Government were going to rejoin, for a very simple reason: Parliament had not at that stage endorsed the decision to opt out at all. The commitment that was given in 2012 by James Brokenshire was to provide an impact assessment for all 133 pre-Lisbon measures. That commitment has not been fulfilled.
That is water under the bridge. The decision has been taken to trigger the block opt-out, but I think that legislative history demonstrates why the noble Lord, Lord Boswell, the noble Baroness, Lady Corston, and I, and many others, are saying that there must be a set of impact assessments on both the measures we are going to rejoin and those we are not going to rejoin. That was the commitment given by the Minister. If one stops to think about it, I am afraid the argument that the noble Lord has just advanced—that somehow or other something we are not going to rejoin cannot have an impact here—is pretty bizarre. Of course it has an impact: it has an impact on us that we are not rejoining.
That impact could be neutral, positive or negative, but it is an impact. I am sure that hard-working Home Office and Ministry of Justice officials are reluctant to add some 85 measures on which they have to produce impact assessments, but that is not a good enough reason. I hope that the noble Lord will perhaps not give a final reaction to that now but will reflect further on the desirability, if the proceedings are to be brought to a successful conclusion—as I personally and many others hope they will be—that before we do that we have impact assessments that cover the whole waterfront.
Lord Taylor of Holbeach
The noble Lord has made a strong point, as he always does, but I have given the answer of where we are on that issue and I do not intend to go into it in any more detail now.
The noble Lord asked about contingency arrangements. That issue is important because our aim is to conduct the negotiations as soon as possible to ensure that there is political and legal certainty for all involved. It is not the intention to have an operational gap between the date on which the opt-out will take effect and the point at which the UK rejoins measures. We place great importance on this issue and believe that it is in everybody’s interest to eliminate any risk of an operational gap. It is clear from the negotiations that member states and the Commission are also keen to avoid such a gap—and I say to the noble Lord, Lord Kennedy, that this includes the operation of the European arrest warrant. It is in everybody’s interests to make this work, and I think that the whole House would agree with that.
The noble Lord, Lord Kennedy, asked about prisoner transfers. We are seeing more returns under this measure; the numbers remain relatively low, however. On returns of foreign national offenders from outside the EU, the UK has reached voluntary prisoner transfer agreements with more than 100 countries outside Europe.
The noble Baroness, Lady Corston, asked about the delay in responding to her letter asking about the right of access to a lawyer directive, which is the MoJ’s responsibility. We are still considering whether to opt in post adoption and have nothing more substantive to say on that at the moment. The noble Baroness asked about Eurojust opt-in negotiations. She will know that negotiations on this proposal are ongoing. The major issues for member states are those that I have just noted.
She asked also about the marginalisation of the UK in Europe due to opt-in/opt-out. That is not our experience. Member states welcome the UK’s involvement in the JHA measures, especially in areas where we are seen to have specific expertise—as we often have in JHA matters. The UK continues to exert influence over negotiations and maintains a seat at the negotiating table even when we are not opting in.
In concluding today’s debate, I thank all those who have spoken; it has been very worth while. I echo the words of my noble friend Lord Judd in paying a compliment to the noble Lord, Lord Hannay.
Lord Taylor of Holbeach
The point is made. Unfortunately, I do consider the noble Lord to be a friend, but I apologise for the slip of the tongue. I was going to talk about another person whom I consider a friend, and somebody whom this House greatly respects: the noble Lord, Lord Hannay. His contribution today was typical of his holding Governments to account. That is what we are here for, and it is right that he does that. I am sorry that this will be his last intervention in the particular role that he has in EU Sub-Committee F, but I am sure that it will not be his last involvement in debate. We look forward to these debates in future and I thank all noble Lords for their involvement today.