Justice and Home Affairs: United Kingdom Opt-Outs
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Lord Taylor of Holbeach
That this House has considered the United Kingdom’s Justice and Home Affairs Opt-Outs.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
I hope that noble Lords will excuse me while I change horses. I am here to update the House about negotiations on the so-called 2014 decision. Before I do so, I begin, once again, by expressing my gratitude for the work of this House in scrutinising these important matters. This Government are extremely grateful that this House—the EU Committee in particular—has undertaken to look at this issue in such detail. We consider it important that Parliament is given every opportunity to consider this matter fully.
Last July, the Government explained that we had decided to exercise the opt-out, and we have now done so. However, we were also clear that we had listened carefully to the views of our law enforcement agencies and prosecutors. We concluded that a number of measures subject to the opt-out add value in the fight against crime and the pursuit of justice and that it would therefore be in our national interest to seek to rejoin them. This House considered the matter in full and endorsed the Government’s decision to seek to rejoin the measures set out in Command Paper 8671.
Before opening formal negotiations with the European Commission, the Council and other member states, the Government listened carefully to the views of noble Lords and considered thoroughly the excellent reports of the EU Committee of the House. Those reports reached well considered conclusions that the Government took into account during negotiations. Good progress has been made in these negotiations and I am pleased to be able to report that we have reached an “in principle” deal with the Commission on the non-Schengen measures that fall under its purview. We have also made good progress on the Schengen measures, with the outline of a possible deal now clear. This matter was discussed at the General Affairs Council on 24 June, but some technical reservations still remain. Discussions continue with the aim of allowing those reservations to be lifted. Negotiations are still ongoing but the Government have been clear throughout this process that we would update Parliament as appropriate and I am honouring that commitment today.
I am acutely aware that the EU Committee of this House has said that Parliament was not involved early enough in the process. While I would not entirely agree with that sentiment, it is something I hope noble Lords will understand the Government are seeking to address by holding a debate on the issue today.
On 3 July the Government published Command Paper 8897, which includes the full list of measures that were discussed at the General Affairs Council, and impact assessments on each of those measures. That fulfils the Government’s commitment to provide those impact assessments and further demonstrates our commitment to parliamentary scrutiny of that matter. However, noble Lords might find it helpful if I set out exactly what changes have been made to the list of 35 measures between the opening of negotiations and now.
Two measures originally on the list of 35 that the Government wished to rejoin—one relating to CEPOL, the European Police College, and the other to freezing orders—have been “Lisbonised” by the new CEPOL measure and the European investigation order respectively. As a result, those measures are no longer subject to the opt-out and fall off the UK’s list.
The UK will also no longer seek to rejoin the European Genocide Network, but will instead rejoin the European Judicial Network. That follows submission of further evidence from the Lord Advocate in Scotland, Frank Mulholland, the Crown Prosecution Service and other member states on the operational benefits of the measure and practical examples of its use in tackling crime. I also know that the EU Committee felt strongly that we should rejoin this measure, and I hope that it is pleased with this outcome.
The UK will not rejoin the Schengen handbook, as other member states consider that measure to have been superseded by other measures. However, we will rejoin the SIS II networks measure—a technical measure others consider linked to our participation in SIS II. As recommended by the EU Committee of this House, the Government will also rejoin three Europol implementing measures.
Finally, the UK will no longer seek to rejoin the special intervention units measure. The Commission considers that measure to be linked to the Prüm decisions, which the UK will not seek to rejoin. We have neither the time nor the money to implement Prüm by 1 December, so it would be senseless for the United Kingdom to rejoin it now and risk being infracted. Despite considerable pressure from the Commission and other member states, that remains the case.
We all want to see the most serious crimes—such as rapes and murders—solved and their perpetrators brought to justice. In some cases, that will mean the police comparing DNA or fingerprint data with other European forces. When 30% of those arrested in London are now foreign nationals, it is clear that that is an operational necessity. Therefore those comparisons happen already, and must if we are to solve cross-border crimes.
The Government would be negligent in their duty to protect the British public if that issue were not considered carefully. We cannot rejoin Prüm on 1 December and will not seek to do so. However, in order that Parliament can also consider that matter carefully, the Government will produce a business and implementation case and run a small-scale pilot, with all necessary safeguards in place. We will publish that by way of a Command Paper and bring the issue back to Parliament so that it can be debated in an informed way. We are working towards doing that by the end of next year.
The Government will also not seek to rejoin the probation framework decision. As the Government have made clear, the measure has not yet been used, and there are serious questions about how it might work. Of course, we have no principled objection to sending prisoners back to serve their probation or community sentence in their home country, and we have taken into account the potential of this measure as indicated by the EU Committee. We have therefore indicated to the Commission that we will take another look at the measure when there is enough evidence of it working and of its impacts to see whether there would be benefits to the UK from taking part. To support that decision, we will publish for Parliament an assessment of the potential impacts in due course.
I know that many were sceptical that a deal could be done. However, I am proud to say that we have very nearly done it, and the Government are clear that this is a good deal for the United Kingdom.
Lord Taylor of Holbeach
My Lords, I thank the noble Lord, Lord Kennedy of Southwark, for the kindnesses he has shown, particularly in his last remarks. He made a number of comments about the current political scene. I have very long memories of this issue in politics, so I do not think that it is necessarily very productive to go down other, party-political routes. In fact, we have a tradition in this House of trying to deal with these matters on their merits. I think that the way we handle these debates is very much to our credit.
I thank all noble Lords who have spoken. A lot of points have been raised, which is hardly surprising, as this is a broad subject—even though it is confined to the JHA opt-out matters, there is a lot of detail. I am going to do my best to reply to points that have been raised, but I hope that noble Lords will be happy if I write one of my usual commentaries on the debate. I find that a very useful way of informing the House. Indeed, in considering this matter, I know that it is nice to have things on the record, but it might be something for those who keep the official records to make a note of letters sent by Ministers, or at least to make them available on the website and not just in the Library, so that noble Lords can be aware of those things for the future. I suggest that as a modernising idea, as it is frequently the case that Ministers need to write in order to provide a proper answer that cannot be given in a debate.
I am grateful to the noble Lord, Lord Boswell, for his chairmanship of the Select Committee and the leadership that he shows on these issues in the House. The noble Lords, Lord Judd and Lord Kennedy of Southwark, both raised the question of transitional arrangements with the Commission and what is going to happen on 1 December. It is not the intention to have a gap between the date on which the opt-in will take effect and the point at which the UK can rejoin the measures. We place a great deal of importance on the issue and believe that it is in everyone’s interest to try to eliminate any operational gap between our opt-out taking effect and our continued participation in the measures that we formally apply to rejoin. If it is necessary to use transitional measures, we consider that transitional arrangements could be used to preserve the legal effects of measures that the Government have said they will rejoin, where there is a short operational gap.
The noble Lords, Lord Bowness and Lord Foulkes, asked when we think that the negotiations will conclude. I think that that is a matter that all noble Lords are aware of—that is, we have made good progress on these negotiations. An in-principle agreement has been reached with the Commission on a package of 35 measures. I say, “a package” because it is not the original package, as was rightly pointed out by the noble Lord, Lord Hannay. However, negotiations with member states are continuing and we are confident of concluding a deal ahead of 1 September so that this operational gap will not occur.
Lord Bowness
My Lords, I thank my noble friend for giving way and I apologise for being troublesome. While he is dealing with this point, perhaps he could tell the House—and I understand the difficulty with negotiations—whether in fact discussions are taking place about transitional arrangements in parallel with the main negotiations. Were we to get much closer to 30 November, it would then be rather late to start putting those transitional arrangements together.
Lord Taylor of Holbeach
This is a wise Government and all these matters are considered. That is not our ambition. Our ambition is to achieve agreement by that time. There will be an update. We have updated Parliament up to now and we will continue to give Parliament opportunities for scrutiny of the process in future.
The noble Lord, Lord Foulkes, again raised the question of whether this was part of the Prime Minister’s promise to start repatriating powers from the EU. It is a decision that flows from the existing treaty and its protocols that were set in place by the Lisbon treaty, negotiated by the previous Government. If we had done nothing with regard to the opt-out, the default position was that the UK would become subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice. The decision to opt out means that a much smaller set of measures will be subject to ECJ jurisdiction and Commission enforcement powers. We believe that that is what the British public would expect us to do, given that the negotiations conducted by the previous Government led to Protocol 36.
The noble Baroness, Lady Prashar, whom I congratulate on stepping into the shoes of the noble Lord, Lord Hannay, asked whether there was a list of measures subject to the opt-out. We are currently working on producing a full consolidated list of measures that the Government consider subject to the opt-out, and we will provide that shortly.
My noble friend Lord Bowness asked: if the majority of these measures are defunct, in no way harmful to the UK or positive, why bother exercising the opt-out at all? I hope that I have given him some idea of why we thought it was important to deal with this. The ECJ should not have the final say over matters concerning substantive criminal law or our international relations in matters like extradition. That is why the Government will not rejoin over 20 minimum-standards measures on sensitive matters such as racism and xenophobia, or the EU/US extradition agreement. I am clear that our Parliament should have the final say over our laws on these matters, and the Government should be able to renegotiate bilateral arrangements as we think fit.
A number of noble Lords asked why the Government had produced an impact assessment for only 35 measures, not for the full list. The Government have been consistently clear that we will provide Parliament with impact assessments on those measures that we will seek to rejoin. I remember saying that in previous debates. Command Paper 8897 is the fulfilment of that commitment. The UK will not be bound by the rest of the measures from 1 December, and there is therefore no need for an impact assessment.
There was some consideration of the European arrest warrant. As noble Lords will know, we have decided to opt back into the European arrest warrant. We have listened to our EU partners and the UK law enforcement and prosecution agencies, as well as the view of Parliament and indeed our European committees, on this. Critics of the EAW have come to a balanced conclusion on how the EAW can be improved and retain its obvious practical and law enforcement benefits but provide better safeguards for people subject to EAW law. We are satisfied that the reforms made to the EAW will help to address these concerns. My noble friend Lord Stoneham asked whether EAW amendments to domestic law are compliant with EU law. We are confident that they are compliant and are happy to provide more detail by way of the letter I will be sending. We will be able to elaborate and I hope that that will be to the benefit of noble Lords generally.
My noble friend Lord Sharkey said that many of the measures that the Government want to withdraw are more likely to be susceptible to negative ECJ judgments. As I have said throughout this process, the Government are concerned about the risk that the court could make unexpected adverse decisions on the interpretation of pre-Lisbon measures. Given the prospect of an unexpected judgment, and concerns about the drafting of measures and the difficulty of altering EU legislation, we believe that minimising the possibility of an adverse judgment is a sensible and pragmatic approach. It is only correct that the Government consider carefully whether to accept the formal jurisdiction of the ECJ before seeking to rejoin measures. We accept that there is always a risk attached in terms of ECJ jurisdiction if we decide to participate. However, in certain cases it will be in the national interest for the UK to participate and the Government will accept that risk, given the wider benefits of the instrument in question. That is the judgment that rightly rests with the Government in these cases.
My noble friend Lord Sharkey also asked about the special intervention units and whether we wish to rejoin in order to maintain participation in an operational police network at the EU level, called Atlas. We now know that we can continue working through Atlas even if we do not participate in the special interventions unit. This has been confirmed by the Commission, so we will lose nothing by not joining that measure. My noble friend Lord Bridgeman was concerned about whether the UK would rejoin Europol and whether it could force national police forces to act. We confirm that Europol will not be able to force national police forces to act.
A number of noble Lords, including my noble friends Lord Sharkey and Lord Stoneham of Droxford, the noble Baroness, Lady Prashar, and the noble Lord, Lord Kennedy of Southwark, asked what steps were taken at EU level to resolve the problems with the probation measure and what is the timetable for our reconsideration of this? This is quite a complex issue but I think that I have time to address it, because noble Lords will be interested. As the Government set out, it is not in the national interest to rejoin the probation measure at this stage. It is unclear how it would work in practice and we have no evidence to demonstrate that the benefits to the UK outweigh its risks.
We did, indeed, discuss these issues with the Commission. However, we were not able to resolve them. One key issue is that only 14 member states have so far implemented it—and to date it has never been used within those 14 member states. Therefore, we have no practical illustrations of how it would work. We were unable to determine the likely impact of rejoining the measure. In due course, once the probation measure has been used and implemented more widely, and there is sufficient evidence to analyse it, we will reconsider participation after making a full assessment of its impact. I will keep noble Lords informed on progress on that particular measure.
My noble friend Lord Bowness asked about transitional measures and I sought to answer him. I have had a supplementary note to the effect that, in case transitional measures are needed, the matter is being considered in a working group in Brussels; this is parallel to the wider negotiations. Our aspirations are that these transitional measures will not be necessary, but they are being discussed.
That concludes my contribution to the debate today. I thank noble Lords for again presenting the views of the European Union Committee and of this House on an important subject. I will be writing a commentary and look forward to continuing dialogue on these issues. I understand that we have a debate on Tuesday on aspects of the Stockholm agreement. This is not going away. It is a live issue as far as I am concerned, as I am sure it is for other noble Lords.