Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014
(10 years ago)
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Lord Bates
That the draft regulations laid before the House on 3 November be approved, and to move to resolve that this House thereby endorses the Government’s formal application to rejoin 35 European Union Justice and Home Affairs measures.
Relevant documents: 13th Report (Session 2012-13) and 5th Report (Session 2013-14) from the European Union Committee, 12th Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument), 13th Report from the Secondary Legislation Scrutiny Committee, 1st Report from the Extradition Law Committee
The Parliamentary Under-Secretary of State, Home Office (Lord Bates)
My Lords, we return to a detailed European matter that, over the last 18 months, has become very familiar to many in this House. Indeed, this is the third time the House has debated this matter on a government Motion this year alone. I remind noble Lords of the background to this matter. Protocol 36 is the part of the Lisbon treaty which relates to the United Kingdom’s opt-out from those policing and criminal justice measures which were adopted before the Lisbon treaty came into force. The opt-out provisions are unique to the United Kingdom and were negotiated by the previous Administration.
Under the terms of Protocol 36, the United Kingdom had to decide before the end of May 2014 whether we wished to opt out of all those police and criminal justice measures, around 135 in all, which predate the Lisbon treaty. This opt-out had to be exercised en masse: we could not simply leave the measures that we did not like. In July last year this House endorsed the Government’s decision to exercise this opt-out and we have until 1 December to notify the Council which measures we would like to remain party to. However, this process must be completed well in advance of December. As a result of the final member state, Spain, not lifting its reserve on the deal we negotiated until 10 days ago, we are running short of time.
The Government have always been clear that, in exercising the UK’s opt-out, we wanted to remain part of a smaller number of measures which give our police and law enforcement agencies vital and practical help in the fight against crime. In July last year, this House endorsed 35 measures, set out in Command Paper 8671, which help our law enforcement agencies to tackle serious crime and keep this country safe. That package was the product of careful deliberation in this House and beyond. It follows consultation with the police, the Crown Prosecution Service, our security and intelligence agencies, the devolved Administrations, the Lord Advocate in Scotland, the Government of Gibraltar, victims’ groups and many more. It has been scrutinised by parliamentary committees in both Houses.
I pay tribute to the work carried out by the EU Committee of this House in scrutinising these matters and thank the Committee for its well considered and very detailed reports. I express my thanks to the noble Lords, Lord Hannay and Lord Boswell, and to the noble Baronesses, Lady Corston and Lady Prashar, for their leadership on this matter and for the guidance that they have provided to the House.
In July this year my noble friend Lord Taylor of Holbeach addressed this House with an update on the Government’s negotiations. He informed the House that good progress had been made in negotiations with the European Commission and other member states, and that we were close to reaching an in-principle agreement. My noble friend also informed the House that this matter had been discussed at the General Affairs Council in June but that some member states—Austria, Poland and Spain—had expressed technical reservations.
The Government published another Command Paper, 8897, which included the full list of measures included in the in-principle agreement discussed at the General Affairs Council, and impact assessments on each of those measures. The Government had hoped to be able to provide a further opportunity for Parliament to consider this matter before the Summer Recess, but the reservations expressed by other member states meant that it was not possible to do so. In September two of those member states lifted their reserves, and I am pleased to be able to inform the House that Spain, the remaining member state blocking the deal, formally lifted its reservation in Brussels 10 days ago.
The deal that the Government have negotiated in Europe is a very good one for the UK. The package of 35 measures that we would like to remain part of includes Europol, which does excellent work under its British director, Rob Wainwright, to tackle cross-border crimes. It includes Eurojust, which facilitates co-operation between our police and prosecutors and their European counterparts, and has proved instrumental in the prosecution of animal rights extremists here in the UK.
The package includes the second generation Schengen Information System or SIS II, which will further strengthen our ability to detect foreign criminals at the border, including individuals wanted in their own countries for serious crimes such as rape and murder. It also includes the Council decision on child pornography, which ensures that international co-operation to tackle this abhorrent crime is prioritised and that collective pressure is put on internet companies to tackle the disgusting crime of online child sex abuse wherever it takes place.
I shall say a little about the timing and format of the decision before the House today, as I know that it is a matter of interest to many. Now that the final reservation has been lifted on our deal, we must allow for discussion at the Council in Brussels before the month is out. That means that we do not have long to complete our domestic processes. This means we must be ready to ensure that we can transpose those measures that are not yet fully transposed in our domestic law on 1 December. It is therefore very important that this House completes the necessary legislative steps as soon as possible. The other place has already voted by a substantial majority to do so.
The Government propose to transpose the measures in the regulations using Section 2(2) of the European Communities Act 1972, but we do not have the vires to do so until 1 December. That is why we have chosen to bring forward an affirmative instrument to enable the House to see the regulations and debate the whole package of 35 measures that we will seek to rejoin. Many of those measures are inextricably bound together, and all of them are the result of a successful negotiation. That is why we are asking the House to consider them as a package and take a single decision on a single Motion.
The amendment of the noble Lord, Lord Boswell, questions the Government’s approach to this matter. I reassure him and other noble Lords that there is nothing nefarious about this approach. Noble Lords will of course be aware that almost all these measures, including the European arrest warrant, have already been endorsed by this House in the vote of July 2013. Unlike in the other place, it is open to us in this House to amend the normal Motion for approving affirmative instruments to make reference to the package of 35 measures that the Government will seek to rejoin. That is why the Government have amended the Motion to put beyond doubt that we see tonight’s debate and decision, just as we saw the debate and decision in the other place last week, as on the whole package of 35 measures that the Government will seek to rejoin in the national interest.
The decision before the House today is no different from the decision that was before the other place last week. The Home Secretary made clear throughout that debate that a vote to approve the Motion would be a vote in favour of the wider package of 35 measures. The House of Commons approved that Motion, and it remains the Government’s intention to rejoin the whole package of police and criminal justice measures, as it is in the national interest so to do. It is now time for this House to make the same decision.
I acknowledge the amendment to the Motion tabled by the noble Lord, Lord Boswell. I have explained why the Government have proceeded in the way that we have, and I believe that the Government have gone out of our way to provide opportunities for this House to consider this matter over the past year. I urge noble Lords to ensure that, when they consider the amendment, they focus on the proceedings in this House today. As I have explained, only a certain number of the 35 measures require transposing through the regulations before the House today.
Before I go further, I say how grateful I am for the work done in short order by the Secondary Legislation Scrutiny Committee of this House, led admirably and skilfully by the noble Lord, Lord Goodlad. It would be remiss of me not to mention the Joint Committee on Statutory Instruments and the helpful work that it has undertaken to assist the Government with their preparation of the SI that we are debating.
The regulations include the measures which provide for the freezing and confiscation of criminal assets and which will simplify the current processes significantly. The regulations also make provision to give effect to the European supervision order in England and Wales and in Northern Ireland. This allows British subjects to be bailed back to the UK, rather than spend months abroad awaiting trial.
Another measure covered by the regulations is the European Criminal Record Information System, or ECRIS. It also includes the Swedish initiative which simplifies the exchange of information and intelligence between law enforcement agencies, and the data protection measure protecting personal data transferred in the fight against crime. These all require transposing, and are covered in the regulations.
Another measure covered by the regulations provides for joint investigation teams between our police and their European counterparts. These allow our police to participate in cross-border operations such as Operation Birkhill, which saw five criminals sentenced to a total of 36 years’ imprisonment this summer for their involvement in the degrading trafficking of over 120 women from Hungary, the Czech Republic and Poland into the UK, or Operation Rico, which resulted in 110 arrests, mostly in the UK and Spain. We are also seeking to remain part of the prisoner transfer framework decision, which helps us to remove foreign criminals from British jails.
The remaining measures from our package which require transposing are the mutual recognition of financial penalties, which increases the effectiveness of financial sanctions by providing that they can be enforced across the EU, and a measure ensuring consistency with regard to trials in absentia, providing safeguards for dependants.
I am aware that the Secondary Legislation Scrutiny Committee considered these regulations last week and felt that more information was required on the policy objectives of these instruments. I hope that today’s debate has helped to clarify some of these matters. This is a hugely complex matter and the Government are limited by the guidance on the length of these documents. There are many lengthy documents, including two Command Papers referred to in the Explanatory Memoranda, that sit alongside the substantial evidence provided to the committees of this House and the other place that set this out in full. The Government will respond to the committee and will support any further scrutiny that they undertake.
I turn to the European arrest warrant. Noble Lords will be aware that the Government have legislated to reform the operation of the arrest warrant and increase the protections offered to British people and others who are wanted for extradition. The changes that we have made through the Anti-Social Behaviour, Crime and Policing Act mean that the arrest warrant which sits in our package of 35 measures is a better and safer arrest warrant than the one which operated over the last decade.
First, the Government have changed the law to ensure arrest warrants are refused for those suspected of minor offences. A British judge now considers whether the alleged offence and likely penalty are sufficient to make someone’s extradition proportionate. And a British judge considers whether there are measures less coercive than extradition that are available to foreign authorities.
Secondly, the Government have clarified the rules on dual criminality to ensure that an arrest warrant must be refused if all or part of the conduct for which a person is wanted took place in the UK and is not a criminal offence in this country. The National Crime Agency is now refusing arrest warrants where it is obvious that the dual criminality test has not been met. It has done so nearly 40 times since our reforms came into force in July.
Thirdly, the Government have changed the law to require that a decision to charge and a decision to try the person have been made by the requesting country before they can be extradited. That will help to prevent lengthy periods of pre-trial detention, which I know have been of concern to many noble Lords, as they have been to the Government. All these provisions have been made in UK law and came into effect earlier this year. All our reforms are based on existing law and practice in other member states and are already making an important difference to the operation of the arrest warrant.
The package of measures in which the arrest warrant sits is a set of vital tools for our police and law enforcement agencies. That package represents a good deal for the United Kingdom which will keep this country and its inhabitants safe, and bring criminals to justice. We must now vote to seal that deal and transpose those measures which require transposing. I beg to move.
Amendment to the Motion
Lord Boswell of Aynho
At end to insert “, but that this House, having regard to earlier undertakings by Ministers, regrets the inappropriate manner in which the Government have sought parliamentary approval for their application.”
Lord Boswell of Aynho (Non-Afl)
My Lords, my amendment to the Motion expresses regret at the inappropriate manner in which the Government have sought parliamentary approval for their application to rejoin the 35 justice and home affairs measures.
Nevertheless, in moving this critical amendment I thank the Minister for his efforts in his introduction to this debate. This is an important issue which deserves calm and considered debate. I trust that the wording of the Motion before us, which the Government amended late last Tuesday—just before we went for a short break—so as to include explicit reference to the 35 measures, along with the Minister’s thoughtful opening, mean that we will not see any repeat of the chaotic and acrimonious scenes that were played out in the House of Commons this time last week.
The amendment, which I have tabled with the support of the European Union Committee, which I chair, refers to undertakings by Ministers. I should begin by putting those before the House. They could hardly have been clearer. On 15 October 2012, the Home Secretary said to the House of Commons:
“I hope that today I have conveyed to the House not only the Government’s full commitment to holding a vote on the 2014 decision in this House and the other place, but the importance that we will accord to Parliament in the process leading up to that vote”.—[Official Report, Commons, 15/10/12; col. 35.]
That was more than two years ago. As recently as 8 May of this year, the noble Lord, Lord Faulks, who is of course in his place, repeated the Home Secretary’s undertaking on the Floor of this House, saying:
“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”.—[Official Report, 8/5/14; col. 1587.]
It is thus crystal clear that the Government explicitly promised both Houses a vote on the “final list of measures” that the United Kingdom would be rejoining. This is not a recent matter; it has been understood on all sides for more than two years.
I emphasise the words “final list”, not because of pedantry but because the list has changed substantially over time. It is all very well for the Minister to say that we had a debate in July, but at the time of that debate the Government’s list and the Commission’s list were different. Even on 5 August, when the Home Office and the Ministry of Justice wrote to the Committee, they were unable to confirm that their list was final, although they did not at that time “anticipate” any further changes. It was not until 30 October—less than three weeks ago—that Ministers finally wrote to confirm that negotiations with the Commission had finished and that there would be no further changes to the list.
I will make one further observation on the Government’s account of our debate in July, which was given in a letter I received from the Leader of the House earlier today. The Government claim that the debate on the package of measures, which took place in this House on 17 July, was on—and I quote from the Leader’s letter—an “amendable and divisible motion”. I remind Members of the House of the wording of that Motion. It was:
“That this House has considered the United Kingdom’s Justice and Home Affairs Opt-Outs”.
Are the Government really saying that the House, if it wanted to vote, should have voted on the question of whether or not it had considered the opt-out—on an entirely neutral statement of fact debated as last business on a Thursday? Frankly, the Government should really stop digging on this.
Lord Lamont of Lerwick (Con)
My Lords, I am grateful to the noble Lord, Lord Bates, for introducing this Motion, albeit that he did so at a somewhat galloping pace, which is perhaps not surprising after the marathon that he has already performed today. I agree with the criticisms of the procedures made by the noble Lord, Lord Boswell, although, unlike him, I have some wider reservations about the whole 35 measures that the Government propose to opt into.
The noble Lord, Lord Boswell, talked about the procedure in this House and in the Commons. Of course, a very important point in the other place was that a specific vote was promised on the issue of the arrest warrant. That is an extremely important point. In November 2013 the House of Commons European Security Committee concluded that the vote on opting back in,
“should ensure there is a genuine opportunity for the House to determine the measures the Government intends to rejoin. To consider the 35 measures as a ‘block opt-in’, subject to one motion, would be seriously to misconceive the individual significance of some of the measures … We ask the Government to reflect this by … tabling separate motions for each of the measures in which it wishes to opt back in”.
That was in paragraphs 571 to 574 of the report.
It was a great pity that there was not a specific debate on the arrest warrant as it was impossible for Members of the House of Commons to talk about individual cases as they affected individuals. When one Member of Parliament, Mr Wiggin, attempted to do that, to give an illustration of what this meant for one of his constituents, he was told by the Speaker that he could not go on describing that and that it was out of order.
My second important point is that the European Scrutiny Committee in the House of Commons concluded that the opt-out, combined with the Government’s proposals for opting back into certain laws, represented no significant repatriation of powers from the EU. Indeed, the Home Affairs Committee thought that it could result in a net flow of powers to the EU, given the introduction of full European Court of Justice jurisdiction. This is because of the relative impact of the laws the Government wish to back into, measured against the lesser importance of many of the other measures under the opt-out.
Another important question is whether we have legally binding agreements, treaties or co-operation. In their command paper of July 2013, the Government said that, in some cases, there was no need for legally binding agreements for practical co-operation to take place with other EU countries to tackle cross-border crime. In the case of some of the 35 EU laws which the Government propose to opt back into, the need for binding law is highly questionable. For example, do we really need to have supranational measures to deal with the exchange of information between member states to police international football matches? The Government also said that, where a binding agreement is needed, an alternative to opting back into EU legislation—which is irreversible and entails full ECJ jurisdiction—is a bilateral treaty between the UK and the EU as a whole. This could apply to extradition.
A fundamental problem with opting back into these EU laws with full ECJ jurisdiction was expressed by the Government in 2012 in response to the European Committee of this House. They stated:
“The practical effect of the ECJ gaining full jurisdiction in this area after the transitional period from 1 December 2014 is that the ECJ may interpret these measures expansively and beyond the scope originally intended. This concern is compounded by the fact that the ECJ has previously ruled in the area of Justice and Home Affairs in unexpected and unhelpful ways from a UK perspective”.
Those are not my words but the words of the Government, and we should take them extremely seriously.
Instead of opting back into the legislation, an alternative would be a new bilateral treaty on the matters in question. This would have the following advantages. The UK would negotiate as a sovereign state regarding the relevant matters. A UK-EU bilateral treaty would enable the UK to avoid coming under the jurisdiction of the ECJ; we could apply different rules and safeguards for British citizens. It would also allow us to withdraw from it if it began operating against the national interest; it would not be frozen in aspic for ever.
Lord Hannay of Chiswick (CB)
I am grateful to the noble Lord for giving way. He has quoted extensively from the committees in another place and from evidence given by Ministers but he has not seen fit to refer once to the two reports made to this House. Could he come on to those, because they answer every single point he has made?
Lord Lamont of Lerwick
The noble Lord can, I am sure, speak and answer my points. I have not yet finished my speech: I have quite a few more points to make. I know that the committee in this place went in a completely different direction from those in the House of Commons. I confess that I found those in the House of Commons more persuasive than the committee in this House. However, it is, as always, open to the noble Lord to speak and I am sure he will do so as persuasively and charmingly tonight as he always does.
Pursuing the point about a bilateral treaty between ourselves and the EU, there is a precedent for this. Denmark has its own opt-out on justice and home affairs and concluded three treaties with the EC prior to the Lisbon treaty. The point is often made that the three EU-Denmark treaties under the provision are subject to the ECJ. That is true, but it does not follow that a UK-EU agreement would have to be: it depends entirely on what we say. It depends what the Government negotiate. A UK-EU treaty could provide an alternative dispute mechanism as the EU has some treaties with various other countries. Of course, I accept that a treaty would take time, but the EU treaty—specifically Article 10(4) of the Protocol on Transitional Provisions—allows the Council on a proposal from the Commission to agree to transitional arrangements in the light of the opt-out. The UK could ask for the relevant pieces of the EU legislation, such as the arrest warrant, to continue to apply for a period of time that allowed for the conclusion of a replacement bilateral treaty. That would not entail opting back in—which is, as I say, irreversible.
Lord Davies of Stamford (Lab)
My Lords, I listened with great attention, as I always do, to the criticisms made by the noble Lord, Lord Lamont, of the 35 measures and the European arrest warrant. I thought that his points made no sense at all. His principal objection to the European arrest warrant seemed to be that it involved the jurisdiction of the ECJ, but then a few sentences later, having complained about the ECJ, he started complaining about the British courts and said that they were too restrictive in applying rights. Well, if you did not have the ECJ you would presumably be entirely and exclusively at the mercy of British justice. He does not like British justice, he does not like the ECJ—what exactly does he like?
The noble Lord then complained about the fact that we did not have exactly the same procedures for handling criminal cases in all the member states of the European Union. Surely if he wants some standardisation of procedures, which is a perfectly reasonable thing to demand, what he wants is indeed a treaty and what he wants to do is to support the Commission with its road map on procedural rights, which I hope he is aware of, which takes us in exactly that direction. But presumably he would not support that proposal because it is European. It is quite clear that his objection, as is always the objection of Eurosceptics to practical, sensible measures in this field, is entirely theological. One cannot do anything about that kind of impenetrable theology but one can at least try to make sure that as a House, as a whole, we look at the national interest in a cool, calm and logical fashion. That attitude has been notably missing from this whole debate over the past two or three years.
I have very little sympathy for the Government over this. The Government last week tried to make a fool of the House of Commons, which is a very undesirable thing for a Government to try to do. They ended up making fools of themselves and no doubt they are very conscious of that at the moment. The way that they have treated this House, as the noble Lord, Lord Boswell, so lucidly set out, is pretty close to duplicitous at times. It is very worrying indeed that we should be treated in that fashion.
The whole thing is completely unnecessary and pointless. It was quite obvious from the beginning that the Government were going to get parliamentary approval for these measures. It was equally quite obvious from the beginning that there was no need whatever, on substance, to opt out of anything at all. There is no objection in terms of national interest—nor has anybody ever suggested it from the government Benches—to any of the measures that we are not opting back in to. They were all secondary, technical measures or else they were redundant or obsolete. They could have been left quite happily and quite safely to wither on the vine. If we had wanted to make some changes in them, we could have negotiated changes.
Where we have in fact gone forward with these 35 measures, we have succeeded very well, I think. I congratulate the Government on getting some practical improvements—for example, in the area of proportionality in the case of the European arrest warrant—and I gather that we have persuaded the Poles, who were issuing warrants far too lightly and easily, to desist from that. That is the way forward, of course, in the European Union generally: quiet, sensible and constructive diplomacy. That works and confrontation does not.
I have to say to the noble Lord, Lord Lamont, and others who think it will be possible to negotiate a treaty between the European Union and the United Kingdom to replace the 35 measures, who is to say that the European Union would agree to anything of the kind? There are very considerable constitutional difficulties about the European Union. It is not provided for in the treaties at all—having a treaty with a member state of itself. It is a very peculiar philosophical and constitutional concept indeed. I do not think it is a precedent that the Union would wish to extend. It certainly has no reason to do so at the present time. Its obvious answer would be, “If the United Kingdom has come out with all these bizarre new proposals and suggestions and special requests, we will have to look at them all together. Since we are going to have a renegotiation by 2017, maybe we will look at it then in that context”. Some of our partners would not want to be helpful at all. As the House knows, Spain, until 10 days ago, was actually objecting to our opting back in. No doubt it would have come to us and said, “We would like a concession on Gibraltar or something in return for our support”. We would have ended up in a complete mare’s nest going down that path. Thank goodness that we did not. It would have been extremely dangerous.
Baroness Ludford (LD)
My Lords, on behalf of these Benches, I strongly welcome the prospect of finalising renewed participation in the 35 measures, even if the procedures—as outlined by the noble Lord, Lord Boswell—have been far from ideal. It is, as other noble Lords have said, axiomatic that cross-border co-operation against major crime and terrorism is essential for the security of the UK and the safety of its people. Just this evening, the London Evening Standard headline is: “Met war on 200 cyber crime gangs”. You do not really need to read the rest to know that their operations are extending across the United States, Russia and the rest of Europe.
I am proud of the Liberal Democrats’ role in this coalition. As my noble friend Lord Stoneham said in the debate on 17 July:
“I hate to think what would have happened if the disciplines and the support of the coalition had not been in place”.—[Official Report, 17/7/14; col. 753.]
However, perhaps we would not have chosen to start from here. I say to the noble Lord, Lord Davies of Stamford, that the opportunity of the opt-out—in the words of the EU Committee, its origins are obscure—was essentially drawn up on the back of an envelope by the previous Prime Minister, Gordon Brown, on the margins of the intergovernmental conference in Lisbon seven years ago, presumably to avoid a referendum. The former Home Secretary Charles Clarke has said that he regretted that it had been negotiated, so perhaps there has to be some humility on the Benches opposite about why we are in what the noble Lord, Lord Hannay, has referred to as,
“the infernal machinery of Protocol 36”.—[Official Report, 17/7/14; col. 761.]
There were strong arguments that measures that were old or defunct could have been allowed to wither on the vine. The idea that the European Commission was going to concern itself with pursuing infringement proceedings for some ancient joint action from the 1990s was fanciful; it will have an enormous amount on its hands just making sure that 28 member states properly implement the most important measures, including the European arrest warrant.
It is unfortunate that this decision is preceding rather than following the results of the balance of competences review on policing and criminal justice, because that review could have enlightened the decision-making on this exercise, but I agree with the noble Lord, Lord Davies of Stamford, that it needs to be a pragmatic, not an ideological, exercise.
UK leadership on justice and security is very strong and these Benches believe that it must continue. We have had two British directors-general in the European Commission dealing with these matters; as has already been noted by the noble Lord, Lord Bates, the current director of Europol, Rob Wainwright, is British; we have had two British presidents of Eurojust; the present Lord Chief Justice, the noble and learned Lord, Lord Thomas, was—as Sir John Thomas—chairman of the European Networks of Councils for the Judiciary in 2008 to 2010; we had the European Police College here, although it is no longer; and we have had judges and advocates-general in the Court of Justice.
Given that we are so strong, with a strong reputation for the credibility of our police—notwithstanding a few recent problems—and given the depth of reputation of our judges and our upholding of the rule of law, we should lead in this area of justice and policing. Our not doing so is having an unfortunate effect on negotiations in Brussels on the measures that we are trying to opt in to. That is perhaps not so much the case in the Council of Ministers but, from my recent experience up till last May in the European Parliament, I know that it is difficult to persuade MEPs to make changes, as they should, to accommodate the common law if they are not sure whether the UK will participate. Some of those changes are ones that they are prepared to make, but they would not be necessary if we were not around. It is necessary for the European Commission to do some spring-cleaning of the list of old measures and it is a pity that it did not do that before this exercise had to be undertaken.
I understand the frustrations expressed by the noble Lord, Lord Boswell, and strongly thank him and his colleagues, the chairmen and the previous chairmen of Sub-Committees E and F.
I can count only 10 measures in the Explanatory Note to the regulations, but 11 are cited in the Explanatory Memorandum. I think that the missing one is the in absentia measure—which seems ironically apt—because I suppose that it is incorporated in other legal measures.
It is not appropriate to fear the jurisdiction of the European Court of Justice. There is no evidence of judicial activism in this area. In fact, the court has to be very cautious, including in the case of Radu, about a European arrest warrant, when there were great hopes two years ago that the court would rule on a proportionality test at EU level. Unfortunately it shied away and decided on a technical basis. However, that in itself demonstrates that the court is being quite cautious on criminal justice. The Government have said on record that they have no objection in principle to the jurisdiction of the CJEU and, of course, we welcome it in other areas such as the single market.
I agree with the noble Lord, Lord Lamont, that the preference should be to reform the EAW at EU level. I was grateful to be able to give evidence recently to the Extradition Law Committee, led by my noble friend Lord Inglewood, which very speedily got out its extremely useful interim report. I agree with the reforms that the Government made in August, although we have not fully seen how they are going to pan out. It would be preferable to have a proportionality-checking issuing state, and to have a broader human rights refusal test than the one we have incorporated in UK law, which the courts have regarded as a high threshold.
There are other flanking measures we need to do the procedural rights. The European investigation order, when it comes into place, will take some of the weight off the European arrest warrant, which should be a last not a first resort—certainly when things such as video interviewing or temporary transfers can be done instead of reaching for it. We need much more to be done at EU level to stop unnecessary pre-trial detention.
It would have been absurd if the Government had not implemented the European supervision order, which, although not sufficient to ensure that people will stay in their home country on bail, is a necessary step to ensure that that would happen. I am fully conscious both as of a patron of Fair Trials International—which I should perhaps declare in this debate—and as a then constituency MEP for Andrew Symeou, just how appalling an experience he and his whole family had a few years ago. He conducted himself with huge dignity through that.
I finish by saying that other noble Lords have mentioned some omissions that would be nice to see, perhaps principally in the European probation order. I hope the Government will be able to give that real consideration in the future, and consider opting in. The UK Government were one of the instigators of the Prüm decisions on the exchange of biometric information, DNA and fingerprints, because we are putting much more into the pool than we are getting back. Therefore, that would be a good one to pursue. Regarding the framework decision on incitement to racial hatred, we lead in Europe on these measures. It is sad that we are not opting into that. There are also one or two others that I have not got time to mention.
There are also some current measures, not part of the mass opt-out but part of the case-by-case decision on whether to opt in, that I hope the Government consider further. One is the internal security fund which, in its previous incarnations, has given considerable funding to UK police and NGOs for investigative operations, for instance Operation Golf, a Metropolitan Police investigation into a child trafficking ring, and other projects. The second is the directive on the right to a lawyer. The Government have rightly pointed out, in their opt in to the framework decision on child pornography, that Articles 72 and 276 in the EU treaty put the maintenance of law and order and safeguarding national security outside EU law and court jurisdiction. That means, for instance, that if there was real suspected criminality, you could intervene on legal, professional privilege, but not in an illegitimate way. I ask the Government to have another serious look at that measure, because we set the gold standard in Europe on access to lawyers—this is not about legal aid but on the right to have a lawyer present.
These are my last words. We do not want to become, in the words of Professor Steve Peers,
“a kind of Brazil of Europe, without the nicer weather. A place that you”—
that is, criminals—
“would flee to or move assets to”.
Britain should not become a safe haven for criminals, and I strongly welcome opting in to the 35 measures.
Lord Bassam of Brighton (Lab)
My Lords, before we go further with this, it is now 10 o’clock. I get the sense that the House will be detained for a considerable time. Usually, the House concludes at 10 o’clock. Perhaps the Government can explain how much longer they intend the debate to continue. It is extremely unusual for us to consider a controversial measure such as this so late in the day and for us to continue so long at this late hour. Perhaps someone from the Government Front Bench can explain exactly how they intend to proceed.
Baroness Williams of Trafford (Con)
My Lords, usually where there is no limit on time for debates such as this, it is advised that people keep within 15 minutes— but given the lateness of the hour, perhaps the general principle of the House is that people keep their contributions brief.
Baroness Smith of Basildon (Lab)
My Lords, it seems to me completely unreasonable for the Government to schedule this debate so late at night—it did not start until three minutes before nine o’clock—when a number of Members wish to speak: noble Lords with considerable expertise on this issue. The Government’s response is to tell them to keep speeches short. That is completely and totally unreasonable.
Baroness Williams of Trafford
My Lords, it is not unusual to refer to the Companion on the general principles of conduct of the House. We have had the Modern Slavery Bill and the Statement today, which were expected to conclude earlier than they did. I am just giving guidance.
Lord Hannay of Chiswick
I have every sympathy with the noble Baroness’s response, but she is aware that someone from her Front Bench spoke for a pretty lengthy time at the beginning of this debate, and now she is asking everyone else to take a lot less time. I think it would be best if we got on with it.
Baroness Williams of Trafford
I think that it would be a good idea to get on with things. I am simply giving guidance from the Companion, rather than dictating to anyone that they curtail their remarks.
Baroness Prashar (CB)
My Lords, I shall be brief. I chair the Home Affairs Sub-Committee, and I want to start by thanking the Minister for acknowledging the work done by the EU Select Committee and the Home Affairs Sub-Committee. The Sub-Committee was previously chaired by the noble Lord, Lord Hannay, who made a great contribution in bringing some clarity to a complex issue and enabling us to have some calm debate. It is a pity that those reports have not been referred to.
I will say just two things at the outset. First, I entirely support the Government in their intention to opt back into the 35 measures. Indeed, I wish that they had gone further and opted back into a number of other measures, as advised by the Home Affairs and Justice Sub-Committees jointly in two reports in 2013. I am particularly disappointed that the Government have not sought to rejoin measures to combat racism and xenophobia, the European judicial network and the European probation order. I do not find their explanations for not seeking to join them very convincing, because I do not think that they have given significant consideration to the substantive and reputational damage of not seeking to rejoin them. So be it.
Secondly, I entirely share the dismay expressed by the noble Lord, Lord Boswell of Aynho, about the failure of Ministers to abide by the undertakings that they have time and again given to the House that they would allow a full debate on these issues. The process by which Ministers have sought parliamentary approval of these very important matters brings them little credit.
I want to confine my comments mainly to the point of view of the sub-committee charged with the scrutiny of such measures. In the 15 years since the entry into force of the Treaty of Amsterdam, all of these measures dealing with home affairs, together with those on data protection, have, prior to their adoption, been scrutinised by the Home Affairs Sub-Committee. A number of these measures have also been the subject of inquiries by the Home Affairs Committee.
I illustrate this by looking at the example of Europol. The list of 35 measures includes the 2009 Council decision establishing Europol. Europol has been the subject of eight inquiries and reports by the European Union Committee. The first five of them pre-date July 1999, when Europol was still being set up and before it began operations. The last major report on Europol, published in 2008, was into the draft Council decision under which Europol is now constituted. Last year the sub-committee, then chaired by the noble Lord, Lord Hannay of Chiswick, reported on the draft regulation which will replace the Council decision and recommended that the Government should opt into that regulation. This advice, sadly, was not followed.
We continue to hold the matter under scrutiny and have expressed our concerns about a number of issues, not least about the opportunity which, under the treaties, your Lordships’ House will have to take part in parliamentary scrutiny of Europol. In other words, we are trying to ensure that this Parliament, and Parliaments of other member states, have as effective a part to play as the European Parliament, and are not subordinated to it.
Scrutiny can be conducted only with the full co-operation of government and the timely provision of Explanatory Memorandums. Within the next three weeks, four decisions must be adopted if the Government are to be able to opt back into the 35 measures. Two of these are Council decisions which must be adopted next week, since they come into force on 1 December. One of them extends the application of these 35 measures by a further week, to give the institutions time to consider and agree the United Kingdom’s application to opt in, for you cannot opt into something before your opt-out has taken effect. So these two decisions are vital, and so is our scrutiny of them. Yet that scrutiny is wholly frustrated by our not receiving in reasonable time the Explanatory Memorandum that is essential for our scrutiny.
In the first week of December, the Council will—I hope—adopt the decision finally authorising the United Kingdom to rejoin six Schengen measures. The Commission will be adopting a similar decision in relation to the remaining 29 measures. These decisions could hardly be more important but we have not yet seen them in draft, we have not received Explanatory Memorandums about them, Ministers have not written to us with details, and it is only this evening that we heard that the reservations have been removed. We do not know whether the Commission will be satisfied that the draft regulations we are considering tonight are sufficient to transpose into United Kingdom law the measures which have not so far been transposed.
The Government's involvement of Parliament in the process has fallen short of the ideal and is inexcusable. I hope that the Minister will be able to deal with these issues and to reassure the House that, in the final lap, the Government will attempt to redeem themselves.
Lord Lawson of Blaby (Con)
My Lords, I sense the mood of the House, so I shall be very brief indeed. Who knows, maybe it will set an example to others—but I am not holding my breath.
I shall focus exclusively on the issue of the European arrest warrant, which is at the heart of this matter. There is no dispute whatever that mutual extradition arrangements between us and our friends across the Channel are vital. The issue is that identified by my noble friend Lord Lamont of whether we would do better to rejoin the European arrest warrant—to opt back into it—or to negotiate bilaterally with the other member countries of the European Union, or the European Union as a bloc.
I have no doubt that on economic grounds alone, this country would be far better off outside the European Union. If that were the case, as I hope it will be in due course, then of course we will negotiate such bilateral agreements, as we have done with most of the other countries in the world. Some of those agreements are not so satisfactory but others are perfectly satisfactory, so that is what we would do. The question, as my noble friend, for whom I have very high regard, said, is whether we can do that while remaining within the European Union. My belief is that that is not an option and that—I may be mistaken—so long as we remain within the European Union, we have to opt back in to the European arrest warrant if we want mutual extradition arrangements, which are essential.
Can my noble friend Lord Faulks, who is an outstanding legal brain and knows everything far better than anybody else in this august House, say clearly and categorically whether the alternative proposed by my noble friend Lord Lamont is an option? If it is an option, why did the Government reject it or is it, as I sadly believe, not an option? I look forward to his reply.
Lord Willoughby de Broke (UKIP)
My Lords, I am delighted to follow the noble Lord, Lord Lawson, and I will certainly follow his recommendation to be very brief. He is of course absolutely right to say that on constitutional grounds, extradition should be a matter for our own courts and not for the European Court of Justice. No matter how the Government try to play this and finesse it, the fact is that through this measure of opting in we are handing over the rights of extradition from our own courts to the European Court of Justice.
The noble Lord, Lord Lamont, made the point that we would be handing our citizens over to very different systems of justice. For example, there would be no habeas corpus, no protection from trial in absentia, no right to silence and no requirement for prima facie evidence to justify extradition. This is a major transfer of power that really cannot be justified by anything that I have heard so far, certainly not to satisfy the Government’s rather rushed timetable. As someone said, the Government have now had more than four years to consider this matter and here we are, only two weeks from the deadline with the Government still trying to push it through.
Neither is this all justified on the grounds of satisfying police leaders, who claim that they need these powers to protect the public from dangerous criminals. Like the Government, the police always want more powers. Some noble Lords will remember when they wanted the power to detain suspects for 90 days. After a very long debate, led by the Liberal Democrat Benches, this House denied the police those powers that they asked for. I do not think that the ceiling fell in after that.
Lord Hannay of Chiswick
Perhaps the noble Lord would take into account the fact that the police are not asking for more powers. They are asking to not have fewer powers.
Lord Willoughby de Broke
I will accept that distinction but our joining the ECJ will in fact give them more powers—and the police always want more powers, as I have said.
I must remind noble Lords that far from being an efficient tool of justice, the European arrest warrant has been, in many cases, the cause of serious injustice. There was the case which the noble Lord mentioned, which I will not go into, of Andrew Symeou. He also mentioned Fair Trials International, which has brought to my attention one of the cases that it mentions. It is of an Italian, Mr Edmond Arapi, who was subject to extradition from Britain to serve 16 years in a prison for a murder in a city in which he never committed the crime and had never visited. The murder was committed on a day when he was actually at work in the UK. What Mr Arapi said was—this was reported by Fair Trials International, so I presume it is correct:
“I had overwhelming evidence that I could not have committed the crime yet they didn’t care. All they cared about was following the procedures of the arrest warrant, and I spent six weeks in jail as a result”.
I really do not think that that is the EU arrest warrant working as perfectly as the noble Lord on the Labour Benches said. It is yet another reason why we should not go back into this extraordinary arrangement and not give our powers away like this.
Lord Inglewood (Con)
My Lords, I shall be brief, because I like to be brief. I rise to speak because I have the good fortune to be chairman of your Lordships’ Select Committee on Extradition Law, which is looking at extradition law in a wide context and which is due to report in March. We did, however, because of the very considerable political controversy surrounding the question of whether or not we should opt back in to the European arrest warrant, produce an interim report which was published last Monday. It was based on a debate between my noble friend Lady Ludford and the honourable Member for North East Somerset, who was standing at the Bar a few minutes ago. It was also informed by all the evidence we had earlier heard about extradition more generally. We did it in the expectation that it would help your Lordships and in the hope that it might help Members of the other place.
The conclusion we reached in paragraph 20 of the report was that:
“On the basis of the evidence we have received, there is no convincing case for disagreeing with the conclusions previously reached by the European Union Committee that”,
basically, we should opt back in. The consequences of that conclusion are that the majority of the committee believed that we should opt back in and a minority believed that there was not enough evidence to form a proper view. It is very interesting, and also very significant, that since that date we have had evidence submitted to the committee by the Lord Chief Justice of England and Wales, the noble and learned Lord, Lord Thomas of Cwmgiedd—I hope that I have pronounced that properly. Having made it clear that the decision as to whether or not to opt back in is a matter for Parliament and not for him, he said:
“Had I been able to do so, I would have expressed the view that all of the evidence I have seen would lead me to a conclusion similar to that in paragraph 20 of your report”—
that is to say, what I have just read out to your Lordships and the conclusion as reached by the European Union Committee. I must confess, and I hope that it will not upset my noble friend Lord Lamont too much, that I find the authority of the Lord Chief Justice a bit more persuasive and authoritative than his views.
My noble friend raised a number of serious points, but if he had heard the evidence and seen the transcripts of the evidence that our committee received, I am sure he would agree with me that much of the concern that he expressed has, in fact, now become misplaced. We have seen an evolution in the way in which the courts deal with matters of extradition which goes to remedy a number of the shortcomings that I think it is agreed by everyone, not least by the Lord Chief Justice, were there in years gone by. I believe that it is dangerous to extrapolate from past cases what is actually happening now.
Something that I think was very telling about the inquiry that we conducted was that we tried to find a respected and regular practitioner at the extradition Bar who worked in the courts in this area and who advocated this country not opting back in, but we could not find such a person. That does not mean that they may not exist, but we were unable to identify them. If we do not opt back in, I believe that we shall be creating a judicial no man’s land in which for years, not months, there will be no proper legal regime covering the kind of problems that are increasingly prevalent in the world in which we live, where movement, legal or illegal, is ever more prevalent.
Concerns have rightly been expressed about miscarriages of justice, but let us be clear about this: that is a phenomenon that, regretfully and to our national shame, is not unknown in this country. It does not follow that our courts are necessarily not going to carry out miscarriages of justice, although obviously we try not to do it. To suggest that somehow all foreign courts are therefore not going to deliver justice is not true. What we have to do is try to ensure that the system works in the interests of justice as best it can.
As I have already explained, I and the committee believe that the more recent modifications to the modus operandi of the extradition process here in Britain both materially make our system better and what is more—this is important bearing in mind the point that was raised earlier—are compatible with EU law if we opt back in. Most of the objections to our opting back in to the European arrest warrant are matters of constitutional principle, not constitutional propriety, and fundamentally are not based on a concern for justice. I believe that if we do not opt back in, it will be bad for justice, for law and order and for UK citizens.
Lord Hannay of Chiswick
My Lords, I think that tonight’s debate marks the final parliamentary chapter in this tangled tale of Britain’s block opt-out from pre-Lisbon justice and home affairs legislation, and of its aim to rejoin those 35 significant measures. Your Lordships’ House has been closely involved in this matter from the very start. It has been a tangled tale over the past two years, and I suspect that some Members may be heartily sick of a process that has involved two weighty reports from your Lordships’ Select Committee, three full-scale debates and any amount of behind-the-scenes work and consultation. Dry, complex and technical though the process may have been, however, it concerns matters that are crucial to Britain’s ability to maintain our own internal security and to combat effectively the continuously rising tide of international cross-border crime. Whether you are talking about drugs, human trafficking, money laundering, cybercrime, terrorism or child pornography, all these matters are assisted by those 35 measures.
The role that your Lordships’ House has played in terms of parliamentary scrutiny and holding the Government to account has been an exemplary one, and I pay tribute to those others, along with myself, who participated in it and to the noble Lord, Lord Boswell, who led our efforts. We should register tonight that the processes in this House have worked well. It is not part of our duty to intrude on the private grief of another place; suffice it to say that the processes there seem to be a good deal suboptimal.
We are in a totally different position, as the Minister said when he opened the debate, because when we debated and approved the triggering of the block opt-out we also approved the reintroduction of the 35 measures. We decided that in July 2013. I hope that the noble Lord, Lord Lamont, and others will forgive me for pointing out that pretty well everyone who has criticised the line that the Government are now taking failed to speak in any of those debates.
Now we are where we are. I welcome the fact that the Government adjusted their Motion for tonight’s debate to take into account the fact that the 35 measures needed to be explicitly referred to. It was, I think, a bit of a mistake not to have done that in the other place. I have no hesitation in supporting the Government in the measures they now wish to rejoin. I equally have no hesitation whatever in supporting the noble Lord, Lord Boswell, in the criticism that he has made of the processes that have led us here.
I find it saddening that these European debates descend so much into what I can only describe as ideology, and are not enough concentrated on the substance of the matter—about which the evidence taken by the committee that I and others served on was pretty conclusive. It is a pity. Europe is not religion, it is politics; and in politics you have to make compromises. In this case, I believe that the Government have reached a very satisfactory compromise.
Lord Pearson of Rannoch
My Lords, when the noble Lord, Lord Hannay, accuses some of us of religious fervour, I have to say to him: “Da che pulpito vien la predica?”. From what pulpit comes the sermon? As noble Lords have said, as part of the block opt-in we are talking about tonight, we are looking at the European arrest warrant. The overriding objection to the European arrest warrant can be simply put. It allows the extradition, pretrial detention, trial, sentencing and imprisonment of British citizens in inferior foreign jurisdictions under the final jurisdiction of the inferior Luxembourg court. Trial by jury largely disappears in these cases and so does habeas corpus. Under Napoleonic law, the investigator and the judge are often the same person. There have already been several famous miscarriages of justice and I have no doubt that there will be more, whatever tinkering takes places with the system. My noble friend Lord Willoughby de Broke and others have mentioned some of those cases.
When I say that we are dealing with inferior foreign jurisdictions, I mean that we do so under the final auspices of, believe it or not, that engine of the treaties, the European court of so-called justice in Luxembourg, which is not a court of law at all—it is the engine of the treaties. It has to find in favour of ever closer union because that is what its instructions are from the treaties. When I say that we are dealing with inferior foreign jurisdictions, let me give you the example of just one of them—my beloved Italy. In Italy, pretrial detainees make up around 40% of the prison population. In this country, it is around 15%. Court processes in Italy last an average of 116 months. In the UK, it is an average of six months, rising to 10 at the Crown Court. In Italy, the maximum pretrial detention is 18 months. In England and Wales, this is set at six months, but a recent report found that our average was 13 weeks.
Under English and Welsh law, there is a presumption in favour of releasing the defendant pending trial. In Italy, circumstantial evidence is enough for a judge to order a pretrial detention. In Italy, a pretrial detention is decided not in open court but by a judge in chambers, possibly by the same chap who investigated the case in the first place. The defendant has no right to take part in the decision-making process and is not represented by a lawyer.
I hope that that is enough for Italy. Then there is Greece, that cradle of the Symeou case. I could go on about other EU jurisdictions, but I hope that I have said enough to make my point. No amount of convenience can override the principle that we should not be sending our citizens into these rotten systems, unless our courts are satisfied that the evidence which sends them there is sufficient.
There is only one advantage in going ahead with the European arrest warrant and these opt-ins. They will move the United Kingdom even further along the road to leaving the failed project that is the European Union.
Lord Bowness (Con)
My Lords, I am very pleased to support the content of the Government’s Motion. It seems a very long time ago that in July 2013, with the co-operation of my noble friends Lord Taylor of Holbeach and Lord McNally, we agreed a Motion that endorsed the decision to rejoin the 35 measures. Tonight’s Motion reiterates that and is all the more welcome for it. I am sorry that it has taken so long. In all the debates we have had we were told that time was not a problem, but we are now 13 days—unlucky for some—before 1 December, and we have ended up taking matters to the wire. That I very much regret. At this time of the evening, I think noble Lords will not wish me to say any more about the issues other than that I very much support what the noble Lord, Lord Boswell, said about the procedures.
I have one question for the Minister. The other place was told, if I correctly interpret its proceedings last Monday—both from reading and viewing them—that the vote was merely to approve the statutory instruments necessary for the implementation of the 10 or 11 of the 35 measures, but that a positive vote would be indicative of support for the measures, including the important and controversial European arrest warrant, and that the Government could proceed with that without any further formalities or legislation. Is that the case? Do the Government consider that, subject to the vote here tonight, nothing further needs to be done in Parliament before the formal notification to the Council and our opt-in to the 35? Can we be assured that, whatever further debates are held on the issue in another place—I understand this week—the matter will be considered concluded and a done deal when we rise this evening?
Lord Kerr of Kinlochard (CB)
My Lords, I, too, will ask a question of the Minister, which arises from the remarkable filibuster of the noble Lord, Lord Lamont of Lerwick. The noble Lord, Lord Lawson, inquired whether it would be possible for a member state of the European Union to conclude a treaty with the European Union. I will ask a different question. If it did, would the European Union involvement mean that the involvement of the European Court of Justice was automatic, and hence that the solution proposed by the noble Lord, Lord Lamont, to his problem—which is the involvement of the European Court of Justice—would in itself bring in the European Court of Justice very much quicker?
I do not wish to heap coals of fire on the Minister’s head—we come to bury Protocol 36, not to praise it, and the Minister is not only a learned but an honourable man. Therefore I do not want to say how much I share the criticisms made by the noble Lord, Lord Boswell, on grounds of procedure, and I do not want to say how, if he chose to press his amendment, I would willingly vote for it. It is very unfair on the noble Lord, Lord Faulks, that having himself repeated Mrs May’s commitment to a full debate and a vote in this House he is put in the position of having to dishonour his commitment. He is an honourable man—Brutus is an honourable man—and certainly I do not wish to bury him.
The only corner of this House so far, apart from the noble Lord, Lord Lamont of Lerwick, that is not backing the Government in what they propose to do, asks a question about the extradition—civis romanus sum—of the British citizen exported abroad to vile conditions in a foreign dungeon. Can the Minister tell us how many of the 105 people extradited from this country on murder charges under the European arrest warrant since 2009 were British citizens? I believe that the number is extremely small. Do we want to keep these people on our streets? Do we want to keep them in our jails? Why do we not send them back to face trial in their own countries? The civis romanus sum point is a good one—and I understand what is being said by the noble Lords, Lord Pearson of Rannoch and Lord Willoughby de Broke—but it is a very small point against the fact that bringing back murderers and rapists from abroad for trial in this country and sending abroad for trial foreign citizens in this country wanted in their countries for these crimes is clearly the right thing to do.
I believe that if we did not opt back into the European arrest warrant, we would be faced with negotiating a tangle of bilateral agreements. Of course it could be done, but it takes time. I know a little bit about these things. We should remember how long the UK-US agreement took and how controversial its terms were in the end. We should remember how, in some quarters, it is still controversial. It is not easy to do these things, and we would have to do them extraordinarily fast. I remind the noble Lord, Lord Lamont, that we have two weeks to go. If we do not opt back in again, the whole structure falls. We would then either be stuck with his course of trying to negotiate in a hurry an agreement with the EU as a block, or the EU as such—and the Minister will tell us whether that would be effective in achieving the purpose of the noble Lord, Lord Lamont—or we would have to negotiate a very large number of bilateral treaties with people who would be pretty discontented with us because we would be causing them quite unnecessary confusion and wasting time.
Therefore, I strongly support the Government on the substance and, because I am being brief and I do not want to cause any embarrassment at all to the Minister, I will not say how appalling I think the procedure has been.
Lord Sharkey (LD)
My Lords, I note that the Minister, the noble Lord, Lord Bates, has been in his place since 3 pm this afternoon and that he came to this debate straight from the Second Reading of the Modern Slavery Bill. In the circumstances, he might wonder whether the definition of slavery is quite comprehensive enough.
This House has debated the Protocol 36 imbroglio many times and I do not want to revisit all the arguments made in these debates, but I want to emphasise a few points, and I want to comment on the Motions before us and to ask the Minister a couple of questions.
The Government are proposing to opt back in to the 35 measures set out in Command Paper 8897. As I said in our last debate on the subject, I very much support rejoining these measures, especially the improved European arrest warrant. The Government have chosen these rejoin measures very well, although of course they should not have had to choose at all. None of the measures that the Government are choosing not to rejoin is at all harmful to the United Kingdom’s interests. By deciding to abandon some measures and keep others, the Government have wasted their own and parliamentary time. They have unnecessarily spent political capital negotiating all this with the Council and the Commission. By trying to keep the number of rejoins low, they have rejected, at the very least, four perfectly good and valuable measures. The fact is that, very regrettably, the Government have been at best extremely clumsy in the way they have treated Parliament throughout the entire Protocol 36 debate. Others today and in previous debates have listed the delays, the absence of Explanatory Memoranda and the unsatisfactorily worded Motions.
The letter of last Wednesday from the noble Lord, Lord Boswell, notes the Government’s failure to adhere to the commitments they have made to Parliament on this matter. As he says, the Government have persisted to the very end in presenting this House with a deeply unsatisfactory and illogical Motion. The government Motion asks the House to approve the draft regulations transposing 11 measures into UK law. Ten of these are among the 35 measures that the Government are seeking to opt back in to. The Commission has advised that they need to be transposed now if we are going to be able to opt back in to them.
But what of the other 25 measures? The government Motion says that by agreeing to the transposition of 11 measures we endorse the formal application to rejoin all 35. Why do it this way? Why make endorsement of the 35 simply consequential on agreeing to transposition of 11 measures, one of which is not even a Protocol 36 measure? If it was an attempt to avoid discussion of the European arrest warrant then it has clearly failed to do that, as has again been demonstrated tonight.
I entirely agree with the conclusions of the noble Lord, Lord Boswell, on this matter. It is a profoundly unsatisfactory approach to parliamentary scrutiny and oversight. The approach also raises some questions. The Government are seeking to rejoin 35 measures, 29 of which are non-Schengen. This means that the Commission is obliged to approve our application if the package is coherent and practicable. It seems clear that, provided we transpose 10 measures into UK law, that will be the case. However, that leaves six non-Schengen measures. Here, it is the Council who must decide to allow rejoin or not.
There are some confusing and worrying signals. The Minister has already mentioned Spain. The Times reported last Friday that Spain had forced a concession from the Government on the Prüm decisions. The article said that the Home Secretary, to secure Spain’s agreement to the rejoins, agreed to run a small-scale Prüm pilot. The article went on to list expressions of outrage at this agreement from Tory Eurosceptic MPs. I was surprised by this—not by the expressions of outrage so much but because I had thought, as I said in a debate on Protocol 36 on 17 July, that the Government had already committed to running a small-scale Prüm pilot anyway. I had thought that this was on the Government’s own unforced initiative. Perhaps the Minister can tell the House whether Spain, as the Times reported, had in fact demanded this concession.
Perhaps the Minister can also tell the House whether Spain, as it is rumoured, has used Gibraltar as a reason for raising objections to the opt back in. Is it just Spain? Can the Minister say if other member states have forced concessions from us in our negotiations to rejoin the six non-Schengen measures? It is worth bearing in mind that no concessions of any kind would have been necessary had we not decided to exercise, quite unnecessarily, the block opt-out. I very much hope that the Motion tonight will be the end of this sorry saga, at least in your Lordships’ House. I hope that it will allow the Government to spend their time on more productive and substantive conversations with our partners in the European Union.
Lord Stoddart of Swindon (Ind Lab)
My Lords, I shall be very brief and begin with a declaration that I always make when I speak about European Union matters: I was never in favour of joining the EEC or the Common Market, as it then was, and I am now in favour of getting out as soon as we possibly can. The House will understand that I cannot support the regulations. I do not think they should be made and we should not be part of the European construct.
What I do want to say, and the reason I have risen to my feet, is to support the amendment of the noble Lord, Lord Boswell. If he puts it to a vote, I shall, of course, vote for it. I really am ashamed of the Government and the way in which they have handled this whole issue. These regulations were put before the House of Commons, which expected to have a long debate on them, and if possible, to discuss individual matters contained within them. They were so disappointing that the Speaker reprimanded the Government on the way in which they handled the matter, and the House itself was completely and utterly outraged. There was chaos in the House of Commons. The Government have almost done the same here—of course, in a much more polite way. They put up a Second Reading debate with 32 speakers, interspersed with a Statement which took about an hour, before the debate on the regulations. The result is that we reached this very important debate at a quarter to nine.
As has already been pointed out on the opposition Benches, that is simply not good enough. I object very much to Parliament being treated in that sort of way. I hope they will take a lesson from the way they have handled this, and the way in which the debate has been interspersed with criticism from the opposition Benches, to ensure that when important matters of this sort are discussed in future, the House will have adequate time before 10 pm.
Baroness Smith of Basildon (Lab)
As I rise to speak at 10.45 pm, I am reminded of my former constituent who, as I left the gym one morning, pointed out that, as a member of the House of Lords, I must be semi-retired. Little did he know. The noble Lord, Lord Stoddart, ended on a very important point. We started this debate at 8.56 pm, after a very long Second Reading debate. It was not rocket science for the Government to understand that a number of noble Lords, who have great expertise and knowledge on these issues, might wish to contribute. Your Lordships have been remarkably self-disciplined in keeping the debate so short and precise. We have had numerous debates of this kind in which many—but not all—noble Lords here this evening have taken part. Given the importance of tonight, and the mess the Government made of it last week in the House of Commons, they should have got it right. I am sorry and disappointed at the way the Government have behaved.
The Motion before us tonight is, as we have heard, different from what the Government originally intended. It is right that the Government have changed their proposal after the chaos and criticism of their approach in the other place last week. Parliament should have the right to debate and vote on the opt-in of the 35 measures that the Government have decided are the most important and crucial to national security and public safety, including—but not only—the European arrest warrant. The confusion we saw last week in the House of Commons was caused by the Government undertaking a rather curious and disingenuous procedural sleight of hand by referring to just 11 of the measures and not the full 35, including the European arrest warrant and then, against the Speaker’s ruling, claiming that it did include them. I hope this does not sound pompous—I have never been accused of being pompous and it is not meant to sound like that—but that does not do anything to enhance the reputation and integrity of the Government where Europe is concerned or to give any confidence that the Government can be relied on to put national interest and public security before party-political interest.
The Government have amended the Motion they originally intended to be debated this evening. The new Motion clarifies the fact that your Lordships’ House can support, or indeed oppose, all 35 of the measures, including the EAW. That is very simple and is largely what the Home Secretary and Prime Minister promised. However, I was surprised that the Minister did not mention, earlier in the debate, a point referred to by the noble Lord, Lord Hannay. When this House discussed the negotiations regarding the opt-in, we endorsed the 35 measures at that time. This was not the Motion before the House of Commons. I listened with great care to the excellent speech by the noble Lord, Lord Boswell, which I think he made more in sorrow and disappointment than in anger. I have known the noble Lord for a long time. In the first committee I ever served on in Parliament, the noble Lord was leading from his party as the shadow Minister and I was on the government side. We were bringing in the national minimum wage and he was leading a team of very able opposition Back-Benchers against it. Recognising the noble Lord’s experience, I hope that the Minister accepts the amendment, which is very precise and fair in its criticisms.
The noble Lord, Lord Boswell, referred to a letter that he received from the Leader of the House on tonight’s debate. I am sorry that the official Opposition did not receive a copy of that letter. It would have been helpful.
As we have heard, the handling of this issue has been quite appalling. Noble Lords who have taken part and followed these debates closely will recall and no doubt share some of our exasperation as we have tried to extract details from Ministers on the issues being debated. The noble Lords, Lord Faulks and Lord Bates, are the fourth and fifth Ministers whom I have debated this issue with, which started originally with a Statement from the noble Lord, Lord McNally.
I have asked a number of questions since the beginning of this exercise and, ever the optimist, I will raise those again in the hope that I will get some answers. I appreciate that the Government have supplied huge volumes of information but that has not been matched by clarity—a point made by the Joint Committee on Statutory Instruments. Through this whole process, the most helpful documents and information that I have seen—this point was made by the noble Baroness, Lady Prashar—were from our own EU Committee. I am grateful to that committee for its briefings in which they were able to talk to lawyers and others with direct experience of these issues. Their experience and advice were equally valuable. This issue requires a great detail and accuracy, yet it has every appearance of a political charade designed to placate anti-European sentiment without full and proper examination of the detail of all its implications. Let us set tonight’s debate in context and be clear about our position in the Labour Party and our commitment to the necessity of fighting crime across boundaries.
The key parts of the EU-wide co-operation that we support and now recognise in the 35 measures are mutual exchange of information in criminal investigations, locating and confiscating the proceeds of crime, criminal record checks, joint cross-border investigations and the European arrest warrant. They are essential crime-fighting tools. This is not some theoretical argument about whether we are pro- or anti-EU co-operation. This debate should only ever have been about hard-nosed, practical measures in the interests of the safety and security of UK citizens. Those of us who made the case for the European arrest warrant welcome the Government’s conversion to its value and importance and the eventual acceptance of the European supervision order which I am sorry was delayed by the Government. It would have been very helpful in making the case for the European arrest warrant had that been brought in earlier.
We have heard examples of problems with the European arrest warrant. The noble Lord, Lord Inglewood, spoke about the important changes that have been made. But equally there are numerous other examples. When Jeremy Forrest left the country with a young schoolgirl, he was brought back within days. That would not have happened prior to the European arrest warrant. There are other cases where terrorists have been brought back to the UK much more quickly than they would have been without the European arrest warrant.
Some of us in your Lordships’ House are old enough to remember the costa del crime, when criminals fled to Spain and were not brought back for months or even years. There is a huge value in the European arrest warrant and I am shocked that so many noble Lords are prepared to take on board a few cases. They do not want to change the European arrest warrant but instead throw the baby out with the bathwater, denying its value to British citizens.
We welcome the Government’s conversion on this issue. We welcome the Government’s acceptance of the value of joint EU investigation teams, the acceptance that crime does not stop at the Channel and that such co-operation is essential. We are now clear about what the Government are proposing we opt back into. I am grateful to the Secondary Legislation Scrutiny Committee for its 13th report enhancing that clarity. I share its criticisms of the lack of clarity in the Explanatory Memorandum.
The noble Lord, Lord Boswell, made an important point about the 35 measures. Measures proposed previously by the EU Committee beyond those 35 have not been given consideration in full and by Parliament. I can think of one in particular that I would have been interested in considering further—recognition around driving offences. If you talk to people in the streets they will tell you time and again that they do not believe the issues of co-operation on driving offences and disqualification are taken seriously enough.
We understand what we are opting back into, but I seek clarification from the Minister on those issues that the Government are seeking not to opt back into and that we would be permanently excluded from. In terms of numbers there were originally 133 crime, law and order, and policing measures, and the Government wanted to opt back in to 35. An additional seven were replaced and the Government opted in. There was a lot of debate in the press at the time, with the two government parties arguing about the precise number of measures that would be opted out of and opted back into.
For there to be any real value in this process it had to be far more than a tidying-up exercise of jettisoned measures that were defunct, irrelevant or useless. There had to be some meaning to it. It could not just be some kind of academic exercise in clearing up those that could have withered on the vine, a point that my noble friend Lord Davies made. The noble Lord, Lord McNally, was the first Minister to raise these issues in your Lordships’ House. He referred to measures that were obsolete, defunct or simply unused. He wrote that the Government were keeping the wheat and losing the chaff. I asked the noble Lord, Lord McNally, in 2012, the noble Lord, Lord Taylor, in 2013 and in 2014, and the noble Lord, Lord Bates, last week for some clarity on what that meant and the value of the measures that the Government want permanently to opt out of. There are three noble Lords here who have experience of this issue. To date, I have received no meaningful answers.
The questions are straightforward. I shall have one last shot at this: can I try again? First, how many and which of the measures of around 100 that the Government plan to opt out of permanently are of any value or even apply to the UK? Secondly, how many were being used and in operation prior to the opt-out decision and how many of those that have been permanently opted out of were harmful to the interests of the UK? Some clear answers to those questions would be extremely useful. Can the Minister answer those? Is he about to intervene?
Baroness Smith of Basildon
I will be patient—I know that he is just taking notes.
To bring clarity to this debate it would be really helpful to know whether this is a serious policy process to ensure the safety and security of British citizens, or whether it is a numerical exercise carried out for party political reasons and of no real value. One of the noble Lords from UKIP referred to the by-election happening later this week in Rochester. I hope that this debate has played no part in the Government’s decision in what they were seeking to do in opting in and opting out. It has to be a valuable exercise, or it is cosmetic. We need answers.
Finally, can I make a plea to the Government for evidence-based policy-making? Unless I receive an answer tonight that would convince me to the contrary, I believe that in so many ways we seem to have government by numbers. We have seen it in the nonsense of net immigration figures. Success for the Government on net migration reduction would be to have lots of highly qualified professionals leaving the country and a huge reduction in fee-paying students not coming to the country. As far as the Government are concerned that would be a success. What a nonsense.
On the Deregulation Bill and the Government’s policies on regulation, every impact assessment makes it clear that for every new regulation that comes in, two have to go out. Why is there no assessment on the value of what the regulation does? Why are numbers so important here? What magic is there in the figure of 35 regulations to be opted back into without a full assessment of those that are being permanently ditched? In all these contexts, numbers alone are irrelevant. What matters is their value. That is what we need to understand from the Minister tonight. Can he bring clarity to this debate and explain in practical terms, not political ones, the value of this very long exercise, which has no doubt been very expensive?
Lord Faulks
My Lords, I thank all noble Lords who have taken part in this debate. It has been remarkable for the self-discipline exercised by speakers in dealing with complex matters that raise strong feelings on various sides. It is not the first time that we have visited these issues in this House. As the noble Lord, Lord Hannay, said, in July the matter was dealt with in some considerable detail.
At the outset, I pay considerable and very well merited tribute to the House of Lords committees, which have scrutinised and re-scrutinised with great rigour the complex mechanism and the pros and cons of the opt-out and the opt-in. If that has not been made sufficiently clear beforehand, I make it clear now. The House is greatly in the debt of those committees, their chairmen and members. The process has been extremely thorough, and the House of Lords, through those committees, has done its job very well.
Lord Bowness
I hope my noble friend will forgive me for interrupting. My question was whether there was any further parliamentary process. I think I am convinced that it is the end of the road as far as this House is concerned.
Lord Faulks
My noble friend is, of course, quite right to ask me to qualify that. I should say that there is nothing more for Parliament to do. I understand that there may or may not be a debate in relation to the European arrest warrant in the House of Commons.
I will now deal with what happened in the House of Commons. It forms part of the concern of my noble friend Lord Boswell. I came back from China this weekend, where I had been discussing the rule of law issues which, as my noble friend Lord Lamont said, are very much a matter of priority for this country. On the flight back, I had the opportunity of reading the debate in the House of Commons; it was not an edifying experience. The expectation was that the debate would focus on the European arrest warrant, but that was not one of the measures that required any legislative action, so it was not within the scope of the Motion to approve the statutory instrument.
The Home Secretary, my right honourable friend Theresa May, indicated that the debate could concern itself by “proxy” with the European arrest warrant. The party opposite would have none of this and there ensued a bad-tempered and rather uninformative debate that eventually resulted, after three votes, in the statutory instrument—the subject of the Motion—being approved and the European arrest warrant not being fully debated. This did not reflect well on Parliament. I am glad to say, albeit by an amendment, your Lordships’ House does not have the procedural impediments that the House of Commons has, and all 35 measures, insofar as it was necessary, could be debated and, indeed, have been.
The European arrest warrant has been the subject of debate—
Lord Stoddart of Swindon
The Minister said that the debate became a bad one because of the behaviour of the Opposition in the House of Commons. Surely I am right in believing that the Government were reprimanded by the Speaker, and that is something quite different. It seems to me that he has made an allegation against the Opposition that really is not true.
Lord Faulks
I am certainly not in a position to criticise the Speaker; it would be entirely improper for me to do so. I am entitled to comment on what transpired in the House of Commons. I did not acquit anybody of contributing to what was a thoroughly uninformative debate. The position, as far as the Opposition were concerned, was that the shadow Home Secretary felt that the scope of the debate did not permit her to discuss the European arrest warrant, and that was the view of many in the House of Commons. The Speaker gave the observations that he did, but I do not think that it is appropriate for me to criticise him or not.
The shadow Home Secretary was also asked during the debate whether the party opposite would have exercised the opt-out—and, if so, which measures it would have opted into. Her response was, “Nice try”, so I am not sure that that was a particularly dignified response to what was a serious question.
Baroness Smith of Basildon
The Minister is straying somewhat. He is here to explain the behaviour and conduct of the Government—who were, as the noble Lord, Lord Stoddart, said, criticised by the Speaker. He seems to want to deflect that criticism on to the Opposition. May I suggest that he returns to his brief and tries to explain how the Government made such an absolute shambles of this whole process?
Lord Faulks
It is necessary, I would suggest to the House—and I am about to move on to the European arrest warrant—for those who may not have had the opportunity to read the debate to appreciate what went on. Those who have read it will form their own view as to how helpful it was.
Considerable anxieties have understandably been felt in the past about the European arrest warrant and about particular cases. There is insufficient time, as the House will understand, for me to go into the details of those, but what is important is the fact that the European arrest warrant now has additional safeguards. In one of the more useful contributions to the debate in the other place, the right honourable James Arbuthnot pointed out that there is considerable judicial oversight of the European arrest warrant. Following the changes in the law made by the Anti-social Behaviour, Crime and Policing Act, a British judge must now consider whether the alleged offence and likely penalty are sufficient to make someone’s extradition proportionate. A British judge must also consider whether measures less coercive than extradition are available to foreign authorities.
As to dual criminality, the European arrest warrant must be refused if all or part of the conduct for which a person is wanted took place in the UK and is not a criminal offence in this country. Furthermore, a decision to charge and try an individual can be questioned by use of video link without the suspect having to leave the United Kingdom. These are all important safeguards which should mitigate some of the anxieties that have been expressed about the unsatisfactory nature of foreign jurisdictions. A large number of people who are not necessarily enthusiasts for the European project have been persuaded that it would be a great mistake to lose the European arrest warrant. I respectfully agree with the noble Baroness, Lady Smith, that this is a correct decision.
My noble friend Lord Lamont asked whether it was possible for us to come to a separate, bilateral treaty with other European Union countries—after all, we have extradition agreements with other countries. There is of course the considerable problem of timing, as the House will be aware. Denmark negotiated a separate deal. The deal struck through Protocol 36 means that the United Kingdom has to follow the rules set out. Denmark has its own protocol so could make its own arrangements, but they are not the arrangements that we would want to copy. Every agreement that Denmark has made separately with the EU has required it to submit to the jurisdiction of the European Court of Justice and, in effect, the Danish agreement simply binds Denmark to EU law by another means—which I suspect is not what most who are interested would have in mind. Of course it would be possible, but it would be cumbersome and it would probably be expensive to make such separate agreements. Far more sensible is to have the now tried and improved system of the European arrest warrant that we have.
Lord Lamont of Lerwick
My noble friend did not address the point that I raised in respect of the Government’s safeguard, so called, that extradition should not take place until a decision has been made by a foreign court to prosecute and to try—I drew a distinction between a decision to prosecute and a decision to try. I referred to the numerous delays that took place in the case of Mr Symeou. That was why I suggested that the safeguard was not really a safeguard. My noble friend has not addressed that point.
Lord Faulks
We consider that the safeguard should be capable of answering that particular problem. The important issue is whether there is an unnecessary delay. It will be appropriate to look at the particular facts of the case and for the judge responding to the warrant to decide whether he or she is satisfied about the arrangements. That, I suggest, is an answer, and unfortunate cases such as that of Andrew Symeou, which I accept was an egregious example of the European arrest warrant not working satisfactorily, should be avoided.
Lord Hannay of Chiswick
Before the Minister moves on from this point, does he not agree that it is perhaps a pity that our debate tonight has not mentioned explicitly one really crucial dimension for this country, which is the Anglo-Irish dimension? It is a very important one. All of us who have taken evidence on this matter are perfectly clear that the European arrest warrant has enabled the depoliticisation of extradition proceedings between the two parts of the island of Ireland. That has been of enormous benefit to both of them. If we were to junk the European arrest warrant, the Irish have no substitute to put in its place because they removed the Council of Europe convention when they transposed the arrest warrant into their legislation. Therefore, we would risk falling back into the worst turmoil of politicised extradition proceedings, often for enormously serious crimes.
Lord Faulks
I am very grateful to the noble Lord, Lord Hannay, for his intervention. I absolutely agree with his observations. Indeed, moving from the specific to the general, what is really important about the European arrest warrant is that it is not exclusively about Europe. It is a practical matter about criminal justice, acknowledging the fact that crime knows no borders, and that we must have satisfactory arrangements. This is the best way of securing those. Whatever noble Lords’ views—relative enthusiasm or otherwise—for the European project, the arguments seem to be overwhelming now in favour of the European arrest warrant.
Time does not permit me to go into arguments about matters that we have not yet reached a conclusion on; for example, Prüm was mentioned. The United Kingdom will not join Prüm on 1 December. Regarding law enforcement and other member states, I have no observations about the conversation referred to by the noble Lord, Lord Sharkey. Others have said that it will bring benefits. Agreement has been reached that we will conduct a full business and implementation case and a small-scale pilot. This will consider not only any benefits of Prüm but also the civil liberties protections available. This will be reported to Parliament by way of a Command Paper in September 2015 and the House will then be given a vote on the matter.
Regarding the lateness of bringing this matter to Parliament, I submit to the House that this is the earliest possible opportunity following full agreement of the Council, which was achieved only the week before last when Spain finally dropped its reservation to approve a good deal for Britain and a package of measures vital in the fight against serious crimes. It will not have escaped the notice of the House that it is only nine working days before 1 December 2014, so we cannot afford further delay. For that reason, it is right that we consider, and vote on if necessary, the overall package and the regulation together.
The noble Baroness, Lady Smith, asked about a letter written by the Leader of the House. That letter is dated only today. However, it forms part of a communication between the noble Baroness and the noble Lord, Lord Boswell. I will make sure that she and all participants in the debate receive a copy of that letter. It explains the process by which this matter has reached the House and attempts to clarify the position. I entirely accept that the debate has come at a rather later hour than any of us would have liked. One of the reasons it was scheduled tonight was to accommodate the EU Committee, but matters went on longer than expected so noble Lords have had to be economical in their observations in relation to the various issues that have arisen.
We have now reached the position—albeit criticisms have been made forcefully and, no doubt, with some considerable justification—where we have completed the process in this House. We have had a number of debates about the merits, which we have answered—
Baroness Smith of Basildon
My Lords, can the noble Lord answer the questions that I have posed, which I have posed in all our debates, or can he write to me with his answers, given the time that we have and that he still has not reached my questions?
Lord Faulks
Clearly, I do not have time to go through the reasons why we have not opted into all the measures that we have not opted into. The presumption is that we opt in to matters that we consider are in our national interest, and we have given reasons for doing that.
Time is running against me. I entirely accept that matters might have been more expeditiously dealt with, but a number of factors caused delays. The Government have been kept very much up to the mark by your Lordships’ House. I hope that with the explanation that I have been able to give and the letter which has so recently been written, the noble Lord, Lord Boswell, will feel inclined to withdraw his amendment to the Motion.
Lord Boswell of Aynho
My Lords, at this late hour, perhaps I may briefly distil the debate into three considerations. The first is the remarkable complexity of the issues involved. I noticed that the noble Baroness, Lady Ludford, asked about the 11 into 10 problem with the regulations, which was not answered in detail, although the noble Lord, Lord Sharkey, referred to it. I answer, in no sense criticising anyone nor intending to wind up on all the points that have been made, that that was the framework directive on freezing orders, and the United Kingdom had already opted in to the post-Lisbon amending legislation, so Protocol 36 no longer applied to the framework. Although the Explanatory Note was slightly—I am sure, unintentionally—misleading on the point, it was true that this had to be transposed into national law but, contrary to the Explanatory Note, it was not among the 35 measures under consideration. I mention that because it is a good example of the complexity of all this.
At the same time, alongside all that complexity, there are some simple practical issues. Are we happy for terrorists to cross the Irish land frontier and not have any recourse to extract them? Are we happy for people to commit crimes across Europe of a very unpleasant nature, often co-ordinated as part of a criminal gang, and for us to have no recourse? Are we happy for the judicial systems to work alongside each other? There is complexity and simplicity.
The Minister has acknowledged that there is considerable concern about the handling failure, which was, frankly, the substance of my amendment. He has been both generous in his comments about the scrutiny that we have carried out and modestly contrite about the failures that may have occurred. This is now the moment to move on, particularly in view of the fact that there is strong but not universal support for the substance of the 35 measures.
In concluding, I should like to say how grateful I am for the support and thoughtfulness that have been expressed in the debate. Collectively, we have made our point and, on that basis, I beg leave to withdraw the amendment.