Istanbul Convention

Baroness Corston Excerpts

Wednesday 12th July 2017 Lords Chamber

[Baroness Corston (Lab)]

I note that the Minister refers to legislation in 2012. How many women’s refuges have closed since then? Many of us would feel a lot more optimistic about the Minister’s Answer to the Question if under the coalition and this Government so many women’s refuges had not had to close through lack of funding. How many new refuges will there be?

[Baroness Williams of Trafford]

I am very happy to tell the noble Baroness that, in 2015, the number of bed spaces in refuges raised from 3,563 to 3,686.

Male Abusive Behaviour

Baroness Corston Excerpts

Wednesday 8th March 2017 Lords Chamber

[Baroness Williams of Trafford]

The noble Baroness raises a very important issue about those agencies that she talks about working together. When I was at DCLG the troubled families programme unearthed an awful lot of instances of domestic violence. Health professionals have a role to play in identifying, for example, a bruise as a result of violence. There are so many things that our professionals can do in identifying and reporting those issues. The police are now better trained not only to take domestic violence seriously but to issue domestic violence protection orders to give the woman—usually—in the relationship some time away from the perpetrator of violence.

[Baroness Corston (Lab)]

My Lords, the Minister will be aware that much of the work that is being done now in relation to domestic abuse is being done by my former honourable friend Dame Vera Baird, who is the lead for police and crime commissioners. No doubt she will accept that 92% of victims of domestic violence are women and many seek help in women’s refuges. Is she aware that Women’s Aid has said that the current funding model proposed by the Government will lead to the destruction of the women’s refuge programme? What are the Government going to do about it?

[Baroness Williams of Trafford]

I pay tribute to Vera Baird because I know she does an awful lot of work in this area. The first thing I looked at when I was at DCLG was the whole area of domestic violence—the refuges and the prevention models. The noble Baroness is absolutely right: it is important to keep these refuges open so that no woman is turned away. In fact, there was a significant announcement in the Budget today about underpinning our VAWG strategy, but those interventions to stop domestic violence happening in the first place are also very important.

Gender-based Violence

Baroness Corston Excerpts

Thursday 8th December 2016 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I do not entirely concur with the noble Baroness. I concur with her on one point: yes, the level is increasing. However, what is very pleasing is that reporting is increasing. That is the very good news: women feel confident enough to come forward and report. As to what the Government are doing, I will start on her last point about the Istanbul convention. We are committed to ratifying the convention and we need to take extraterritorial jurisdiction over certain offences to be fully compliant. We will do so when parliamentary time allows. However, we are taking extraterritorial jurisdiction over certain things such as FGM and forced marriage. Therefore, we are already undertaking some of our obligations.

Before I talk more about what the Government are doing, I want to pay tribute to the noble Baroness, who has herself been very involved in this area, as was I in my role in the DCLG and now the Home Office. I was very pleased that, yesterday, stalking protection orders were announced and the national statement of expectation for domestic violence funding on a local level was released. As I said, we also published yesterday analysis about domestic homicide reviews and updated the statutory guidance to ensure that local areas can learn lessons. Last month, the DCLG announced the two-year innovation fund of £20 million to help local areas deal with domestic violence and the seamless journey of women through what is a horrific process. I am sorry that I have gone on a bit too long, but the Government have actually done a lot in this area.

[Baroness Corston (Lab)]

My Lords, it is acknowledged that domestic violence is the primary route for women into the criminal justice system. The women’s community centres have done a great deal of work in the past to assist those women in turning their lives around and escaping this cycle of domestic violence. Those centres are under threat because of the malign effects of the transforming rehabilitation programme, brought in during the last government. Will the Minister use the best offices in her own department and in the Ministry of Justice to ensure that those women’s centres are put in a more secure financial position?

[Baroness Williams of Trafford]

I pay tribute to all the women’s centres and women’s groups, such as Women’s Aid, and all those people who provide so much support to women whose voices otherwise just would not be heard and who would feel too frightened to come forward. I have outlined some of the funding that we are putting into tackling domestic violence, and I look forward to the fruits of that funding.

National Identity Cards

Baroness Corston Excerpts

Tuesday 5th July 2016 Lords Chamber

[Lord Keen of Elie]

As may be appreciated, the position of the Government is that they would not contemplate introducing identity cards at present. If they believed that their introduction would bring a material increase in security, their position would of course change.

[Baroness Corston (Lab)]

Will the Minister be surprised to hear that when I was a Member in the other place, I held a consultation and conference on identity cards in my constituency? One of the responses that most surprised people was from married women—most but not all from minority ethnic communities—who said that they had no access to their passports, that they did not have a bank card or a savings account and that they could not prove who they were. Indeed, some of them said that when they had become victims of domestic violence and had gone to Bristol City Council, they were told that they could not be rehoused because they could not prove who they were. They said to me: “If you allow me to have an identity card, I would be someone”. Have the Government thought about those issues?

[Lord Keen of Elie]

It is tragic to hear of victims of such intimidation and control, but I would observe that those who are the subject of such control are not likely to have access to their identity card any more than they do to their passport.

Buses: Concessionary Fares

Baroness Corston Excerpts

Wednesday 13th April 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

First, I am fully aware of the scheme in Wales. For the record—I am sure the noble Baroness acknowledges this—it is both a Liberal Democrat and a Labour initiative in Wales. We are always magnanimous from the Dispatch Box.

Coming to the more central point, the noble Baroness is quite right to raise the issue of young people’s travel. I appreciate the challenges that she has put into context. Across England, there are about 89 concessionary travel programmes outside London, of which about 22 currently practise young people’s schemes. We look to ensure that good practice is shared; at the moment, as I said, no plans are being made for statutory provision across the country.

[Baroness Corston (Lab)]

The Select Committee on Social Mobility of your Lordships’ House, which I have the privilege to chair, reported last week on the transition from school to work. Evidence that we took from organisations, including Barnardo’s, was that young people who live in rural areas who would like to go to FE colleges or take up apprenticeships are prevented from doing so because of the cost of transport. Surely, young people like that, if the Government are truly honest in their apprenticeship levy, should be given the opportunity to get to training or study with some kind of concessionary scheme.

[Lord Ahmad of Wimbledon]

I will review the recommendations of the noble Baroness’s full report, which I have not yet done, and perhaps we can meet in that regard after I have done so. But she is quite right—I agree with her that we need to ensure concessionary schemes across the country that provide good open access to all those who require it. However, we also need to emphasise the point that local authorities carry responsibility in this regard.

Women: Domestic Violence

Baroness Corston Excerpts

Tuesday 16th June 2015 Lords Chamber

[Lord Bates]

I can absolutely give that assurance. It is absolutely right that that should be a priority for legal aid. In fact, we have gone even further and said that where there are domestic violence injunction orders, the £75 court fee is waived as well. It is vital that people get the help that they need at a time of stress.

[Baroness Corston (Lab)]

My Lords, given that, for a reasonable proportion of the women in our prisons, the route there started with domestic violence, does the Minister agree that it would be cheaper for the public purse, and much better for women and their children, for them to receive emotional support during the incidents of domestic violence rather than ending up in prison? I remind him that in the previous Government there was a very good focus on women who were at risk of offending, and these are often women who have been victims of domestic violence. That agenda has been dropped by this Government. Will he please ensure that such support is given to these women?

[Lord Bates]

Actually, with respect to the noble Baroness, I do not think that it has been dropped. We have changed the programme, incorporating it into the work of the troubled families programme, which we have extended to some 400,000 families and which has a strong domestic violence focus. On her central point—that it is better to prevent; to stop people early on in that journey, which might lead to prison—that is better for the taxpayer and better for the family all round.

European Public Prosecutor’s Office (EUC Report)

Baroness Corston Excerpts

Thursday 19th March 2015 Lords Chamber

Moved by

[Baroness Corston]

That this House takes note of the report of the European Union Committee on the impact of the European Public Prosecutor’s Office on the United Kingdom (4th Report, HL Paper 53).

[Baroness Corston (Lab)]

My Lords, it was my pleasure to serve as both a member and the chair of the Sub-Committee on Justice, Institutions and Consumer Protection. At the outset I thank my colleagues who served as members of that committee, who all brought extraordinary expertise and diligence to their work, and pay tribute to our staff. We were very fortunate in the clerks who served when I was on the committee and in our legal advisers, who were second to none. Having served for 13 years as a Member of another place, I think I can say without contradiction that the scrutiny role of the House of Lords in its European work is second to none and is recognised as such throughout the European Union.

On 17 July 2013, the European Commission published its long-awaited proposal for a European public prosecutor’s office. It is subject to the UK’s opt-in protocol, but the coalition agreement had already ruled out participation by the United Kingdom. I interject a personal note here. It seems to me to be quite a discourtesy in parliamentary terms to start a consultation process on 17 July in any year as Parliament has either risen for the Summer Recess or is about to do so. In order for us to do our scrutiny work properly, not only did it involve holiday time for staff, it meant that the committee had to come back when the House was not sitting to be able to fulfil its role. I hope that the European Commission will not persist with that kind of timetable in future.

Under the Commission’s proposal, the prosecutor would be made,

“responsible for investigating, prosecuting and bringing to judgment … the perpetrators of … offences against the Union’s financial interest”,

and would be empowered to,

“exercise the functions of prosecutor in the competent courts of the Member States”.

This organisation was going to be responsible for all fraud in the European Union. At its meeting on 11 September 2013, the Sub-Committee on Justice, Institutions and Consumer Protection, which at the time I chaired, considered the Commission’s proposal for the first time and decided to issue a reasoned opinion, challenging it on the grounds of subsidiarity. In October of the same year, this House approved the sub-committee’s proposed reasoned opinion and because the number of reasoned opinions submitted by the national parliaments reached the “yellow card” threshold, the Commission was obliged to review the proposal. It is important to point out that this was only the second time that sufficient national parliaments had ever forced the Commission to undertake such a review.

We were consequently very disappointed when shortly thereafter, in November, following its review, the Commission produced a communication in which it decided to maintain its proposed European prosecutor as originally brought forward. There was not much in the way of a reasoned argument. Following this news, in January 2014, the sub-committee agreed to launch an inquiry into the ramifications of the proposed European public prosecutor’s office for non-participating states such as the United Kingdom—but of course, the United Kingdom is not the only one. While we had our doubts about the proposal, we were also very concerned about the impact it would have on the non-participating member states, of which the UK is one, and on the ongoing relationship with the European Union’s current anti-fraud body, OLAF, and Eurojust.

We began taking evidence in March 2014. We heard from leading academics in the field, representatives of the legal profession, the current president of Eurojust and one former holder of that position, and the current director-general of OLAF. The sessions concluded with evidence from the Home Secretary. We are grateful to all those who submitted evidence to our inquiry. Unfortunately, the committee’s planned timetable was somewhat frustrated in that while the evidence sessions were well under way, following the member states’ initial discussion of the Commission’s proposal, the then Greek presidency of the Council brought forward an alternative prosecutor’s proposal, addressing some of the member states’ key concerns. The Government submitted an Explanatory Memorandum on this alternative text in June 2014.

We took the decision to postpone publication to allow all those who gave evidence to the inquiry an opportunity to consider the rival text. The committee’s subsequent report was published on 3 November 2014. My committee found a number of very significant problems with the Commission’s proposal. We were worried about the principle that the prosecutor would be responsible for investigating and prosecuting all EU fraud crimes, to the exclusion of the national bodies responsible—what is referred to in the jargon as exclusive competence. This in turn would run the risk of the prosecutor being overwhelmed from birth by an excessive workload. We also expressed doubts about the proposed centralised structure.

Unfortunately, we did not see the presidency’s text as a panacea. The committee found that the rival text raised more questions than answers. There was a lack of clarity about sharing competence for these crimes between the member states and the relevant national authorities. We also thought that the attempt to mimic Eurojust’s collegiate structure was overly complicated. As for the position of the non-participating member states, neither of the texts considered during the inquiry addressed their position at all. However, the report warned that the proposed European prosecutor could seriously undermine the UK’s relationship with the European Union’s current anti-fraud body, OLAF, and with Eurojust.

Unsurprisingly, given their long-standing opposition to the European public prosecutor’s office, the Government shared many of the committee’s concerns. There is a great deal of common ground between the committee and the Government and, as we know, that is not always the case.

[Lord Spicer (Con)]

I do not quite see why the committee was so surprised that it was all or nothing. As it is all going to be conducted under a different form of law from ours, it has to be, in the interests of fairness, all or nothing, does it not?

[Baroness Corston]

The main problem, as we saw it, was not only that the prosecutor would be completely overwhelmed but that no consideration at all was given to countries that, from the outset, would not play any part. I think that formed the basis of both our concern and the concern of the Government.

Given that there was a great deal of common ground between the Government and the committee, the Government agreed with nearly all our conclusions and recommendations. The only point of disagreement relates to the Home Secretary’s suggestion during her evidence that the United Kingdom might not be legally obliged to respond to requests for assistance from the European public prosecutor’s office. Given her doubts, the committee called for an urgent consultation by the Home Office on this matter. Sadly, our call was rejected by the Government. They cited as a reason the current lack of clarity over the prosecutor’s potential role. I accept, of course, that a lack of clarity pervades any discussion of the proposed public prosecutor’s office—indeed, this theme runs throughout the report—but I would suggest that the issue of co-operation between the European public prosecutor in whatever form and the relevant UK authorities—for example, in relation to European arrest warrants—is not going to go away.

Witnesses to the inquiry were quite clear that any weakness or failure by the UK authorities to co-operate with the European public prosecutor in this regard risked the UK being seen as a safe-haven for those suspected of committing offences against the European Union’s financial interests and for illegally obtained EU funds. The members of my former committee would not want to see the UK become, as one witness warned, the Costa del Sol of the 1980s for those who perpetrate criminal frauds against the European Union’s finances.

I again thank those who contributed to the inquiry and my former colleagues on the sub-committee, whose company I very much appreciated. No doubt we all agree that it is essential that the European Union and the UK consider the full implications of the establishment of the European public prosecutor, not only for those states that will not participate but for bringing to justice those people who commit fraud against the interests of the European Union. I beg to move.

--- Later in debate ---

[Baroness Corston]

Can I point out to the Minister that evidence given to the EU Justice, Institutions and Consumer Protection Sub-Committee before this inquiry was that the dimension of fraud against the European Union budget was probably about €5 billion a year?

[Lord Bates]

Yes. They are extraordinarily large and very worrying sums of money, and this Government remain absolutely committed to tackling that. We continue to support efforts by the EU anti-fraud office to tackle EU fraud, we value the role of OLAF and Eurojust, and we want to minimise disruption to current and future anti-fraud cases if an EPPO is created.

We understand that the EPPO-to-Eurojust relationship and the EPPO’s impact on OLAF will not be discussed until later in the negotiations. We also have no further information from the Commission on any plan for reform of OLAF. I appreciate that this lack of clarity makes assessment of the impact of an EPPO difficult at this stage. The Luxembourg presidency may be in a position in the latter half of this year to begin constructive discussions on EPPO interactions with other EU bodies, third countries and non-participating member states, but that is highly likely to depend on where things stand in June. As soon as there are significant developments, we will update noble Lords in the normal way.

--- Later in debate ---

[Baroness Corston]

My Lords, I am very grateful to all noble Lords who have taken part in this debate. While it has been a short debate, it has been an excellent one. I am very grateful to my noble friend Lady O’Loan for drawing your Lordships’ attention to the possible dimensions of fraud against the European Union, particularly so-called carousel fraud. We all take that terribly seriously and want it to be addressed, except that we do not think that the EPPO is the remedy.

I also want to reassure the noble and learned Lord, Lord Hope of Craighead, that no discourtesy at all was intended in not referring more comprehensively to the evidence submitted to us by the Lord Advocate for Scotland, Frank Mulholland QC; we found his contribution to be both cogent and persuasive and based very much on practical experience. I also want to thank the Minister for his thoughtful response.

Motion agreed.

European Union: Justice and Home Affairs

Baroness Corston Excerpts

Thursday 8th May 2014 Lords Chamber

[Baroness Corston (Lab)]

My Lords, the noble Lord, Lord Hannay, has, in his normal comprehensive and concise fashion, already addressed all relevant matters arising out of the work of our two sub-committees relating to the 2014 block opt-out decision. He is right: the block opt-out was comprehensively debated by this House in July last year and January this year, and I do not wish to detain your Lordships any longer on that matter.

However, I want to take this opportunity to reiterate that the Justice, Institutions and Consumer Protection Sub-Committee of the European Union Committee, which I chair, remains unconvinced by the Government’s argument for triggering the block opt-out. I also wish to endorse the comments of the noble Lord, Lord Hannay, that we support the Government in their bid to rejoin the 35 measures that they identified in Command Paper 8671. We also hope that the Government will stay true to their promise to negotiate with the Commission on the issue of coherence in good faith and with flexibility.

On the subject of coherence, my committee recently considered a Commission report that looked at the state of implementation by the member states of three key justice and home affairs framework decisions, which introduce mutual recognition into aspects of pre-trial and post-sentence detention. Our two Protocol 36 reports addressed all three framework decisions. The Commission’s report also argues that, alongside the European arrest warrant, all three framework decisions constitute a coherent package of legislation. The Government do not agree. I hope that this example does not indicate how difficult these negotiations will prove. However, we await with anticipation the Government’s response to our letter dated 6 May.

I turn now to the Government’s report detailing the individual opt-ins for 2012-13. Most of the legislative proposals scrutinised by Sub-Committee E are subject to the UK’s opt-in protocol. There is not the time or, I suspect, the will for me to mention each and every opt-in decision that we have considered this year. Rather, I shall focus on a small number of high-profile or significant proposals that raise specific issues that I wish to share with the House today.

As to my committee’s scrutiny of the opt-in, I put on record that we remain committed to considering the merits of individual opt-ins as part of the scrutiny work that we undertake on behalf of the House. To that end, during the year my sub-committee has engaged the Government in a line of correspondence, seeking to shed some light on the wider ramifications of their approach to these matters. In particular, we have endeavoured to ascertain what impact government opt-in decisions have on the UK’s influence and position in the subsequent negotiations in the Council. The catalyst for our correspondence with the Government was the debate on 4 November last of our report on the opt-in to the Eurojust regulation. I will return to the detail of that specific opt-in in a moment.

My correspondence with the Government on the wider ramifications of the UK’s opt-in has moved between three government departments—the Foreign and Commonwealth Office, the Home Office and the Ministry of Justice. I see the Minister nodding his head. I am told that our most recent letter on this matter, dated 6 February this year, is currently with the Ministry of Justice. We initially expected a reply by 21 February. An extension was granted by sub-committee officials but not to this date and we have not yet received a response. Is the Minister able to offer the House an indication of when we can expect a response? If not, can he promise to pursue the matter with the Ministry of Justice?

I turn now to those individual matters of particular interest highlighted by the Government’s report that fell to my sub-committee and merit specific attention in today’s debate. The first concerns the directive on the protection of the euro and other currencies against counterfeiting. While in the end we agreed with the Government’s decision not to opt in to these negotiations at the outset, this was an occasion when the Government’s Explanatory Memorandum did not address the opt-in at all. The Government have committed to supporting parliamentary scrutiny of opt-in decisions, and as part of their commitment they have promised to provide information on the factors affecting the opt-in decision where the Government are in a position to do so, although they did not do so on this occasion. If the sub-committees of the European Union Committee are to be able to fulfil effectively the role entrusted to them by the House, at the least we would expect the Explanatory Memorandum to any prospective legislation subject to the opt-in to address: first, the policy implications of the proposal; secondly, a preliminary assessment of the prospects of negotiating away the concerns identified; and thirdly, some indication as to whether the relevant UK authorities will be hampered by the UK’s non-participation. This did not happen in this case and we expect it to happen in the future.

The next legislative proposals of interest concern the interrelated regulations reforming Eurojust and creating the European Public Prosecutor’s Office, or EPPO. Both these proposals were brought forward together in July last year and both are subject to the UK’s opt-in protocol. However, as the Minister acknowledged in his opening remarks, the coalition agreement ruled out the UK’s participation in EPPO—a position all but enshrined by the European Union Act 2011—so the question of the UK opting in to EPPO did not even arise. The window within which the sub-committees are afforded time to consider individual opt-in decisions is small and on this occasion it was complicated by the Summer Recess. Nevertheless, against a very challenging timetable my sub-committee produced two reports into these matters.

The first report, on EPPO, recommended that the House should issue a reasoned opinion challenging the proposal by way of subsidiarity—a recommendation that I am pleased to say was endorsed by the House on 28 October last. The second report dealt with the application of the opt-in to the Eurojust proposal, and we urged the Government to opt into the regulation. It was published on the same day as the House debated the EPPO report. While the Eurojust report acknowledged the validity of the Government’s concerns with the proposal, we urged the Government to opt into the negotiations from the outset because, in our view, opting in represented the most effective way for the UK to continue its important membership of Eurojust while securing a text that best served the UK’s interests.

Unfortunately, at the subsequent debate on 4 November, despite clear support from all sides of the House, I was forced to withdraw the Motion approving the report in the face of opposition from both Front Benches. Nevertheless, my committee remains of the view that our report advocated the right approach to the opt-in in this case; and we fear that, in deciding not to opt into the regulation reforming Eurojust, the Government have taken the first step towards the door marked exit. Will the Minister tell the House how the negotiations on the Eurojust proposal are progressing and whether they are progressing to the UK’s advantage?

I also wish to address my comments in relation to the impact of opt-outs. I spoke to the predecessors of both Ministers on the Front Bench some time ago about the fact that there were impact assessments of the opt-ins but no impact of the effect on the United Kingdom of the measures that we were opting out from.

As I said, there is not time to go into the detailed discussions between the sub-committee that I chair and the Government on the merits or otherwise of each individual application of the opt-in. While my comments during this debate appear to focus on the negative aspects of my sub-committee’s relationship with the Government when we scrutinise the opt-in, I must add that, in the vast majority of the decisions of relevance to the opt-in, the Government and the Justice, Institutions and Consumer Protection Sub-Committee are in agreement.

EU Police and Criminal Justice Measures: EUC Reports

Baroness Corston Excerpts

Thursday 23rd January 2014 Lords Chamber

[Baroness Corston (Lab)]

My Lords, I am very grateful for the opportunity to take part in this debate as the person who, since May of last year, has chaired Sub-Committee E, which is one of the two sub-committees together with that of the noble Lord, Lord Hannay, who has already spoken and whose expertise in these matters is probably unrivalled in this House. I want at the outset to pay tribute to the noble Lord, Lord Bowness, my predecessor as the chair of Sub-Committee E. He chaired that committee with great distinction and he took it in turns—as I have since May—with the noble Lord, Lord Hannay, to chair the meetings and conduct the inquiries. I associate myself and the members of my committee with the entire content of the speech of the noble Lord, Lord Hannay, particularly on the way in which this House has been treated by the Government. I also echo the comments of the noble Lord, Lord Jopling, who has had a distinguished career in both Houses of Parliament.

The two reports we are debating today represent a considerable amount of work by the two sub-committees, and by the Select Committee, on behalf of the whole House. I know that the noble Lord, Lord Boswell, who chairs the European Union Committee, is disappointed that because of another engagement he is unable to be in his place today. It was therefore something pleasing to note from the Government’s response to our second report, the Follow-up Report on EU Police and Criminal Justice Measures, that the Government considered that the reports represented what they describe as,

“an extremely thorough analysis of a complex issue”.

It was thorough and it is complex.

I will not go on about or rehearse the procedural failings of the Government in their dealings with Parliament on the opt-out. Both our reports comment on all that and it has been rehearsed before. Things went wrong—it may be said that they went downhill— from the Prime Minister’s speech in Rio, which appeared to pre-empt the decision on whether to exercise the opt-out even before our first inquiry began, and have taken a long time to get back on track. I hope that, in his reply, the Minister will tell us that lessons have been learnt.

There are more steps to come in the procedure under the opt-out protocol for the United Kingdom to rejoin measures, and we expect the Government to keep Parliament properly informed and in a timely fashion as the process plays out. In particular, we will need a comprehensive impact assessment to assess the outcome of the Government’s negotiations on rejoining measures. An assessment of the measures covered by the opt-out was promised as long ago as November 2012, which is 14 months ago, and the Explanatory Memoranda published last July do not fulfil that requirement. I emphasise that the impact assessment should not cover just the 35 measures which the Government wish to rejoin, as we can all make a judgment as to the efficacy or rightness of those decisions; they should certainly cover the other 95.

It seems to me, and to my sub-committee, that it is crass to fail to explore the impact of not seeking to rejoin measures such as those on driving disqualifications, probation or racism and xenophobia. It is all very well to say that we have comprehensive legislation in that final instance, on racism and xenophobia. That may be true—I think it is—but it sends out a rather bad signal when that decision was taken at the same time as vans were going round certain London boroughs telling illegal immigrants to go home.

In our first report, we considered whether the opt-out should be exercised. We said that we found the Government’s case for exercising the opt-out was unconvincing. I, and we, remain unconvinced. The Government’s decision to exercise the opt-out was much influenced by their view on extending the jurisdiction of the Court of Justice of the European Union to the 130 measures to which the opt-out applies. We think that the Government’s fears are misplaced. It is highly unlikely that the 130 measures were drafted without thought as to this jurisdiction, as the Government say, given 11 member states had agreed that their courts could make preliminary references to the Court of Justice for the interpretation of European Union police and criminal justice measures from 1999.

Of course, there will be cases from time to time where the Government will disagree with the judgments of any court of any jurisdiction. However, we do well to remember that courts act as guardians for us all and the Court of Justice ensures the common interpretation of European Union law throughout the Union and prevents backsliding from their obligations by member states. The United Kingdom has nothing to fear from an extension of the court’s jurisdiction to these police and criminal justice measures. It would otherwise hardly seek to rejoin even 35 of them.

Unfortunately, although the Government are saying that the reports were helpful in informing their decision on the issues, I echo a remark of my colleague on the justice sub-committee, my noble friend Lord Rowlands, that it appeared to be something of “a dialogue of the deaf”. However, the issue of whether to opt in is now water under the bridge, following the Government’s notification of their decision to opt out in July of last year. We now have to focus on the implications of having opted out of the 130 measures concerned.

We considered the Government’s list of 35 measures that they wish to rejoin. They are set out in Appendix 4 to our second report. These measures contain the most significance in the interests of the UK and other member states. I am pleased that the Government will seek to rejoin them, in particular the legislation on the European arrest warrant and on Eurojust, both of which are particularly interesting and important given evidence to our committees in the recent past about the growing Europeanisation of crime. However, that does not mean that the others have no significance—only that the 35 are the irreducible minimum. They may yet turn out not to be the practical minimum. The Government must convince the Commission, in particular, that the set of measures that we rejoin is one that, as Protocol 36 requires, does not seriously affect the practical operability of the measures and respects their coherence.

This issue of coherence matters. Our second report considers this issue and suggests that some other measures may have to be added to the list of 35. I ask the Minister to tell us what the Commission has said on the coherence of the 35. Do the Government envisage adding to the list for reasons of coherence? It is vital that the decision on which measures to rejoin takes account of the national interest, including the national interest in rejoining a coherent set of operable measures. As our second report says, we hope and expect the Government to respond flexibly to adjustments that the Commission may propose to the list of measures that they wish to rejoin. There should be no place for a numbers game on this important issue.

The national interest is not confined to considerations of practical effectiveness, as the Government seem to believe. Of course legislation is about substance, but our approach to European Union legislation also makes signals of our intent. Opting out risks signalling to our European partners a lack of engagement on the part of the United Kingdom in the application of standards, the operation of investigations and prosecutions and the safeguarding of citizens’ rights in the field of policing and criminal justice—as important for our citizens when they visit the other countries of the European Union as it is for their citizens when they visit the United Kingdom. No matter how good our own standards are in, for example, combating racism, failing to rejoin that measure signals a detachment.

Risks remain. Even if the Government are successful in obtaining agreement to our rejoining measures, there may be gaps in application of the measures that we rejoin. The Government and the Commission will no doubt work hard to avoid gaps but may not be able to do so in every case. Transitional measures may be necessary.

One gap is already apparent: measures for obtaining evidence in cross-border cases will be greatly improved by the directive, to be adopted very soon, establishing a single system for obtaining evidence in cross-border cases, through a European investigation order. We should remind ourselves of some high-profile cross-border cases that have been very much in the public mind in the past few years. Three years will be allowed for member states to implement the directive into national law, so the new system may not be fully effective throughout the European Union until 2017. However, on 1 December this year, the UK will cease to participate in the current EU convention on mutual assistance because we have opted out of it. The Government say that this will not make much difference because there are other available measures. Perhaps so; we shall see. But this example illustrates how gaps may appear despite what I acknowledge may be good intentions.

Finally, the Government—this or another—may wish to revisit the question of whether to rejoin other measures in light of future developments. There is no time limit in Protocol 36 on opting back in, as the Government have acknowledged in their response to our second report. All the more important, therefore, is the last recommendation in our second report that there should be an ex-post review of the impact of opting out, in the same spirit as we support post-legislative scrutiny. I hope that the Minister will give this a more favourable reception than that given in the formal response to the report.

EU: Eurojust (EUC Report)

Baroness Corston Excerpts

Monday 4th November 2013 Lords Chamber

Moved by

[Baroness Corston]

That this House agrees to the recommendation of the European Union Committee that Her Majesty’s Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, to take part in the adoption and application of the Proposal for a Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust) (document 12566/13) (4th Report, HL Paper 66).

[Baroness Corston (Lab)]

My Lords, I move the Motion in my capacity as chair of the European Union Committee’s Sub-Committee E on Justice, Institutions and Consumer Protection, which prepared the report now before the House for endorsement. The Motion invites the House to agree with the committee’s recommendation that the Government should opt in to the negotiation of the proposed regulation reforming the European Union Agency for Criminal Justice Co-operation—the agency which is more commonly known as Eurojust. The proposal falls within the area of justice and home affairs which will apply to the United Kingdom only if the Government exercise their right under EU treaties to participate in its negotiation, adoption and implementation or, in other words, to opt in to this. The Government have to do this within three months of the proposal being presented to the Council, which in this case means before 21 November.

On the same day in July as the Commission brought forward the Eurojust regulation, it also published an accompanying proposal creating the European Public Prosecutor’s Office, the EPPO. The Government have already made clear in the coalition agreement their intention not to participate in the proposed EPPO and on Monday last week this House approved a reasoned opinion challenging the EPPO on subsidiarity grounds. The reasoned opinion was also prepared by the EU sub-committee that I chair.

Unfortunately, as the proposed Eurojust regulation was published just before the House rose for the Summer Recess, it was not possible to publish this report and schedule a debate in the House within the usual eight-week window that would have been afforded to the committee. However, there is fortunately sufficient time for a report from the EU sub-committee considering the opt-in and for this debate to be held in the House today before the Government’s deadline to decide expires.

The Government have already given a clue as to their intentions regarding the opt-in, in a letter dated 21 October from the Security Minister, James Brokenshire MP, a copy of which appears in the appendix to the report. In it, he says that:

“Pending the views of Parliament”,

the Government will not be opting in to the negotiations for the proposed regulation. For reasons that I will turn to in a moment, the Government have concluded that the regulation,

“would have significant implications for the UK’s systems of law”.

The letter also makes clear the Government’s intention to revisit their decision once an agreed text emerges from the negotiations.

I fear that this decision by the Government not to opt in to these negotiations from the outset could be construed by our fellow member states in the EU as representing a lack of commitment by the UK to a very important crime-fighting agency. The UK is one of the agency’s main users and, after the terrorist attacks in the US in September 2001, has played a key role in the agency. For example, for seven years of its 11-year history, the elected president of Eurojust has been the UK member. I note that the Minister says that the Government’s decision not to opt in has been taken pending Parliament’s view, but it seems that their intention is clear: the UK will not be opting in. In this context, it is difficult to foresee the position of president of Eurojust being bestowed on the current UK member. Although the committee acknowledges the validity of the Government’s concerns for the UK’s criminal justice system, the Government must also accept that the simple example of the Eurojust presidency illustrates that there is a price to be paid, perhaps in relation to our influence, when the UK chooses not to opt in to EU legislation.

Essentially, the regulation retains Eurojust’s core functions but includes new provisions reforming the agency’s governance and management structure. Notably, this includes Eurojust’s interaction with the proposed EPPO, the UK’s participation with which has been ruled out by the coalition agreement. The proposed regulation also includes provisions augmenting the existing powers of Eurojust’s members and new arrangements governing Eurojust’s accountability to the European Parliament and to national parliaments.

The Government have some concerns. In their Explanatory Memorandum, the Government praised the current legislation governing Eurojust and, in the context of the Government’s 2014 block opt-out decision—into which my committee has undertaken two recent inquiries, along with Sub-Committee F, chaired by the noble Lord, Lord Hannay of Chiswick—communicated their intention to opt back in to the current legislation. On the other hand, the Government also raised a number of concerns with the proposed regulation on Eurojust, including its potential ramifications for fundamental rights. However, in light of the Minister’s letter of 21 October, it now appears that there are two key concerns which have convinced the Government that it is not in the UK’s interests to opt in to this proposal. Both concerns are discussed in our report.

The first of those concerns relates to the aspects of the proposal which change Eurojust’s governance and management structure, including in respect of Eurojust’s interaction with the proposed EPPO. Once the Commission followed the treaty requirement that the EPPO be created out of Eurojust, it was inevitable, given the Government’s clear policy of non-participation, that this issue was always going to be difficult for the Government. However, the report argues that the issue is not enough to rule out the Government’s participation in the negotiations about the Eurojust regulation. Indeed, the committee believes it strengthens the arguments in favour of opting in.

The second of the Government’s key concerns relates to the requirement in the proposed regulation that the powers conferred on members of Eurojust by their member states are mandatory rather than discretionary, as is the case under the current legislation. The Minister says in his letter that mandatory powers of the type envisaged by the proposal,

“would cut across the separation of powers between police and prosecutors in England, Wales and Northern Ireland”.

The Minister also warns of the potential ramifications of mandatory powers for the role of the Lord Advocate in Scotland. I note the Government’s concern in this regard and take the opportunity to ask the Minister about the extent of the Government’s consultation with the devolved Administrations before deciding whether or not to opt in to this proposal, particularly in light of the clear evidence given to my committee by the Lord Advocate during the recent Protocol 36 inquiry of the benefits of Eurojust to the Scottish Government and his concern that the UK should not leave the agency. That may well be a message for both Front Benches.

The report itself suggests that the Government opt in to the Eurojust regulation, drawing on much of the evidence given to the two recent inquires on Protocol 36 and Sub-Committee E’s own recent inquiry focusing on fraud in the EU’s budget. The overwhelming weight of the evidence taken during these inquiries, which is reproduced in the report, highlights the importance of Eurojust’s work to member states. The report argues that the Government’s participation in these negotiations is all the more important given, first, the provisions in this proposal introducing significant interweaving of Eurojust with the proposed EPPO and, secondly, the Government’s clear stance of non-participation with the EPPO. It is my committee’s view that the UK Government will not be alone in their opposition to the EPPO—indeed the treaty anticipates this eventuality by including specific enhanced co-operation provisions for agreement. Furthermore, last week saw sufficient reasoned opinions issued by national parliaments, including one from this House and one from the other place, to force the Commission to review the proposed EPPO.

Our report therefore suggests that the UK ought to be a full participant at the table for the important discussions addressing the position of those states that wish to work together in Eurojust but do not want to participate in the proposed EPPO. These negotiations will shape Eurojust’s future and, although the committee acknowledges the validity of the Government’s concerns, the committee would not want to see the Government pursue a course of action which would diminish our influence on these important negotiations.

Finally, although the Government have decided, under the Protocol 36 decision, to opt back into the current legislation governing Eurojust, my committee cannot foresee a situation whereby the UK would be allowed to remain a full participating member of Eurojust under legislation superseded by this proposal. In this context, we fear that there is a clear danger that in deciding to opt out of these negotiations the Government could be taking the first step on the road to the UK’s non-participation in Eurojust, which we would all come to regret. My committee would strongly caution against such a course of action.

--- Later in debate ---

[Lord Taylor of Holbeach]

My noble friend and I have been involved in negotiations and I do not think that we ever went into them contemplating that approach to the issues. We went in there to achieve our objectives and that is exactly what the Government will be doing. We are not alone in taking this stance; we have the support of others. Eurojust has been an asset and we want to make sure that the new proposals complement the work that has already been achieved by it and do not get in its way.

I make no apology for not going into detail about our negotiating position but reinforce the fact that we are not in some sort of annexe. We are not down the corridor to be occasionally brought in to be involved in these negotiations. We are at the table negotiating on behalf of our interests and that is what our colleagues in Europe expect us to do. I do not share the view of my noble friend Lady Hamwee that we are not fully committed to negotiations. We are committed to negotiations. I have always believed that if you go into negotiations you do the best service to your colleagues and the issue under consideration by stating your position clearly and arguing for it. That is exactly what this Government will be doing.

I was in the middle of my peroration when my noble friend interrupted me. Our intention is to negotiate to protect the Eurojust arrangements, but our view currently is that as the new proposal stands it presents too high a risk to our criminal justice system to opt in at this stage. I hope, therefore, that noble Lords will understand why the Government cannot support the Motion.

[Baroness Corston]

My Lords, I thank those noble Lords who have contributed to this debate this evening. It was particularly gratifying to have the support of five members of Sub-Committee E and that of an illustrious past chair of Sub-Committee E, the noble and learned Lord, Lord Hope of Craighead, who was entirely right when he pointed out how important it is for the Government to be at the table at the outset of these negotiations. This report does not tie the Government’s hands. There would be no difficulty if the Motion was agreed to. The Minister listened to the debate and can take the views expressed and the report into account. The House usually supports the committees that it appoints to perform its scrutiny functions. This issue was very carefully considered by Sub-Committee E and was endorsed by the full EU Select Committee so ably chaired by the noble Lord, Lord Boswell, who I am pleased to say is in his place this evening.

However, I am mindful of the old adage that when you are in a hole you should stop digging, and since neither Front Bench supports the Motion and it is not going to be agreed to, I am willing to withdraw it.

Motion withdrawn.