EU: Justice and Home Affairs

Debate between Baroness Browning and Lord Pearson of Rannoch

Wednesday 22nd June 2011 Grand Committee

[Baroness Browning]

My Lords, this has been a constructive debate and I am grateful as this is the first time I have taken these measures in front of your Lordships’ House and this Committee. The Government have committed to increasing our engagement with Parliament on European issues and on the opt-in in particular. This and subsequent annual reports, as well as this debate, are certainly going to help to inform the way in which they are structured in the future. I have been very interested to hear many views across the Chamber today, which will be very helpful in informing and shaping the way in which we continue to report to Parliament.

The noble Lord, Lord Rowlands, mentioned the very important factor of the accumulative effect. He also raised the question of how the red lines might be affected in light of that. It is an important issue that I will take back to the department to look at the implications for accumulation and whether that affects the way in which red lines have been established. I hope he will accept that I think it is a very good point that we should consider. He also raised the question of the vigilance of committees. I quite accept that, and I will come later to other points that have been made about the work of committees, in which noble Lords in this Room play a significant and important part.

The noble Baroness, Lady Falkner of Margravine, and the noble Lord, Lord Rosser, mentioned the time taken to bring this report. We would like to have had this debate much earlier, but debates are in the hands of the business managers and this was the first time this slot was available. I will report to business managers noble Lords’ concern that the lead time between the report being published and holding the debate needs to be narrowed if the debate is to have more meaning and relevance. Noble Lords have made that point well and I apologise that there has been a long lead time in debating this first report.

The noble Baroness, Lady Falkner of Margravine, and the noble Lord, Lord Rosser, talked about the code of practice. A draft code of practice is at an advanced stage, but we want the code to take account of the new scrutiny arrangements announced by the Minister for Europe. Settling the detail of this has meant it has taken longer than we hoped but we expect to finalise it in the early autumn. It is on its way—it is not here yet—but the work is well progressed.

The noble Baroness also said that we failed to opt out under Protocol 19 due to the timing of these proposals. Protocol 19 gives us three months to opt out of measures to build on the part of Schengen in which we participate. During the time of the report, there have been two such measures by which we consciously decided to remain bound. We have therefore not failed to opt out but, in line with the coalition position, we have taken each decision on a case-by-case basis.

The noble Baroness and others—the noble Lord, Lord Hannay, touched on this—also raised the need for more narrative and explanation in future reports and the need to explain each decision more. Those are very well made points, and in the interests of transparency I see no reason why future reports should not take account of those views. It would certainly be very helpful, particularly for accuracy, if those narratives were put in place, so I am very happy to put that forward. We set out our reasons for each opt-in decision when we report them to Parliament by Written Ministerial or Oral Statement. I apologise to the noble Lord, Lord Hannay, that I had not spotted that it said “House of Lords N/A”. That is extremely discourteous and I apologise to him unreservedly. I will ensure that there is a proper explanation and that no comment such as that, which is quite derisory, will appear in future reports and I am grateful to him for drawing it to my attention.

Perhaps I may move on to some of the other points raised by the noble Lord, Lord Hannay. He mentioned the agreement with Belarus. We decided not to opt in, because we did not believe that the agreement would deliver clear benefits for the UK. The number of illegal immigrants removed or deported to Belarus is very low, and the UK Border Agency already has good co-operation with the Belarus authorities. The decision was taken for that reason. Also raised was the question of dates—when the last language version is finalised. The noble Lord, Lord Hannay, made a good point about that. We have agreed that that is the appropriate approach, and will ensure that it is reflected in the code of practice when it comes.

The question of Committee time for debate, when there is no three-month period, is a difficulty. However, we will always seek to accommodate a request for a debate on an EU measure. Given that we have only the three months to take opt-in decisions at the start, we need to work closely with the business managers. In the same way that we will discuss with them the lead time for the debate to come forward, we will ensure that they are fully aware of the three-month timeframe required. There is an opportunity for more flexibility in this. For a post-adoption opt-in, of course we have a little more time. Particularly for parliamentary time, three months is very narrow, but we will ensure that the business managers are aware of the need for proper and timely scrutiny.

The noble Lord, Lord Hannay, also suggested that the annexe issued could be kept up to date for everyone in the form of a six-monthly submission. It should be possible to send that to both committees. It is a good suggestion. We will write, setting out our analysis of the priorities for the next six months, and then hope to make that a routine part of the way in which we keep committees informed, particularly of the upcoming business.

The noble Lord, Lord Bowness, raised the subject of the European public prosecutor. I was rather uplifted by his initial remark that there was only one thing on which his committee had disagreed; I shall now disappoint him tremendously. The Government have made clear that we will not opt in to a European public prosecutor. We understand that the Commission proposes to create such an office in the next two to three years, but the UK does not support it and will not participate. Having said that, I am sure that the noble Lord will want to engage in further debate with us about it, which we would welcome; but that has been the Government’s position and it still stands.

The noble Lord and others also referred to the right to opt out of all existing police and criminal justice measures from 1 December 2014. That is when the European Court of Justice jurisdiction will take effect. We have to make the decision no later than May 2014, of course. I do not wish to dodge the question. I say that particularly to my old friend the noble Lord, Lord Pearson, because I understand from his remarks that he has had some unsatisfactory answers to it. The fact is that the Government will use the intervening time—we have that time—to consider carefully the many different factors and implications of the decision, including proper analysis of its cost and particularly the legal implications. We have no intention of making a premature decision on the matter, which I know will disappoint the noble Lord, Lord Bowness, but I hope will give some crumb of comfort to the noble Lord, Lord Pearson of Rannoch.

[Lord Pearson of Rannoch]

I am most grateful to my erstwhile noble friend, but could she be precise as to whether the Government intend to fulfil the commitment given by Mr Lidington that,

“the Government have committed publicly to having a vote in both Houses before making a formal decision on whether we wish to opt in or out”?—[Official Report, Commons, 26/1/11; col. 399.]

That was really my main question. Everything since then refers to Parliament being kept informed and to debates and scrutiny, none of which is worth anything compared with a vote in both Houses.

While I am on my feet, I may as well repeat my two questions. What will be the enduring value of Protocols 19 and 21, and upon what are both Houses going to be able to vote? Those matters are central to this debate and, if the noble Baroness does not know now, perhaps we should come back to them fairly soon.

[Baroness Browning]

I am very grateful. I was about to move on to that. I reassure the noble Lord that, as my right honourable friend David Lidington said, we will have a vote in both Houses if the Government decide to opt in under Protocol 21 or opt out under Protocol 19. That commitment was made by the Minister in the other place. It still very much holds good and is the Government’s declared policy. I hope that that reassures him on that point.

I think that the noble Lord also raised the question of a referendum—

--- Later in debate ---

[Baroness Browning]

That is not an unreasonable request and I assure the noble Lord, Lord Bowness, that I shall write to him with the definitive list as soon as I am able to do so.

I want to finish with the points made by the noble Lords, Lord Pearson and Lord Hannay. We are going to consider this matter very carefully, so there will be no rushed decision. However, the commitment to a vote in both Houses remains very firm.

[Lord Pearson of Rannoch]

On what would that vote be likely to be?

[Baroness Browning]

My Lords, I think that the noble Lord is trying to seduce me into setting out the wording of a decision that has yet to be made, and I am not in a position to do that. Therefore, I am sorry to disappoint him but, as I understood it, his initial concern was about whether the important commitment to both Houses remains good. It certainly does.

The noble Lord, Lord Rosser, asked about forthcoming decisions. I am going to read out a very short list and I assure the Committee that I shall not take up too much time in doing so. Forthcoming decisions—ones that are about to be published and will require an opt-in decision—include: the directive on the rights and support of victims of crime; the European protection order civil measure; the recast asylum procedures directive; the recast asylum qualification directive; the EU/Australia PNR arrangements; the EU/US PNR arrangements; the EU/Canada PNR arrangements; the proposed regulation on the freezing of bank accounts in the European Union; and the proposal for a directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest. I hope that he will also find helpful the commitment I have given to the noble Lord, Lord Hannay, on the six-monthly updates. That information will be extremely helpful to the Scrutiny Committee and across the wider House. The noble Lord asked about the 2014 opt-out decision. I hope he feels that I have given a comprehensive answer to that point, which was raised by several other noble Lords.