EU: UK Opt-in Protocol (EUC Report)

Baroness Ludford Excerpts

Wednesday 15th July 2015 Grand Committee

[Baroness Ludford (LD)]

My Lords, it is a privilege to take part in this debate. I did not have the pleasure of serving under the noble Baroness, Lady Quin. I am a new member of the Justice Sub-Committee under the chairmanship of the noble Baroness, Lady Kennedy of The Shaws, and I look forward very much to continuing to work on that committee. I spent 15 years in the European Parliament on the relevant committee dealing with justice and home affairs issues. In the five years between the Lisbon treaty coming into force and my stepping down, involuntarily, from the European Parliament, I became very familiar with the exercise of the opt-in under the protocol, and indeed with the whole exercise of the block opt-out, which we will no doubt discuss in the next debate.

As I listened to the noble Lord, Lord Richard, in particular, I could not help trying to suppress a giggle as I thought that this would make a very good satirical sketch. However, the serious point is that the Government are creating a great deal of confusion and legal uncertainty, first, for this House and the other place over the correct parliamentary procedures that should apply to this area. The scenario that we seem to have is that the Government decide after the three-month window, “Oops, we’ve discovered some microscopic JHA element very late in the day—too late to let you guys know that the opt-in enhanced scrutiny procedure applies”. We had a letter dated 3 June 2014 from the Justice Secretary and Home Secretary saying breezily that,

“there may be occasions where the Government fails to recognise JHA content in an EU proposal at the outset. We are endeavouring to keep these occasions to a minimum by raising the profile of JHA content in otherwise non-JHA dossiers across Whitehall”.

There are two possible reactions to that. One is that it cannot be very significant if it is not easily spotted, so why are the Government bothering about it? The second is: get your act together a bit earlier and check what is actually in the proposal.

The second, and perhaps more important, area where confusion and legal uncertainty will be created is with the EU institutions, with the other 27 Governments and with our international partners. That is brought out very well in paragraph 91 of the report, which says that the uncertainty about when and whether Protocol 21 applies is,

“particularly problematic in the context of international agreements, as it would mean that third countries might be unable to assess, when they conclude an agreement with the European Union, to what extent the Union assumes liability with respect to the United Kingdom. This will ultimately affect the correct implementation of the pacta sunt servanda principle, a cornerstone of international law”.

So we have the situation where the Government say, “We think there is JHA content but we didn’t manage to secure a Title V legal base. None the less, we don’t regard the UK as bound by the JHA element”. To say that this is “not an ideal outcome”, as the Government did in a letter of 3 April 2014, is an understatement of the highest order, but of course they assert that the situation did not give rise to legal uncertainty—we just put a statement in the Council minutes and everything is hunky-dory.

It seems to me that, to use a popular phrase or saying, this is no way to run a whelk-stall. There are serious implications for the rule of law, for the uniformity of the EU legal order and for the confidence that our partners, both European and international, can have in our dependability. I cannot see any possible advantage for a country that this year has celebrated 800 years of Magna Carta and the rule of law, which has one of the most admired legal systems in the world and which surely trades on the rule of law probably as much as any other country in the world—indeed, it relies on the rule of law and on everyone else meeting it.

Perhaps I am being rather party political, but the idea that there is a conspiracy against us seems to sum up everything that is wrong with a Conservative-dominated or Conservative-only Government’s attitude to the European Union—“They are out to get us”. Of course it is fair enough to be vigilant and ensure the correct application of the treaties. That in itself is an application of the rule of law. There may be cases where the Commission tries to push the envelope, more out of a sense of, “Well, the Commission would, wouldn’t it?”, because that is the institutional way of trying to ensure that the EU competence is at its maximum, but as the noble Lord, Lord Richard, said, the way to push back against that is to use political and legal arguments with the Council and the Parliament and eventually, if necessary, with the court. Various examples of this have been cited, such as the PIF directive and the road traffic offences directive, where both the Council and the Parliament were convinced that, because of the criminal law element, a Title V legal basis was needed.

Indeed, a current example can be found in the proposed arrangements for Greece, where the Commission is apparently trying to use funds from the European financial stability mechanism, on which I am far from an expert, as bridging finance. That would bring in the UK. The Chancellor may well be right to say, “No, it was agreed in 2010 or 2012 that the UK would not be outvoted in the use of those funds”. In certain circumstances it is perfectly right to use political and legal arguments to make sure that the UK’s legal rights are protected.

Secondly, there seems be an attitude that we find reasons to stay out of projects and be isolated, instead of finding reasons, within the proper framework, to contribute and be seen as a source of positive energy rather than always adopting a negative attitude.

Thirdly, there seems to be so much nitpicking on this matter—arguing for the sake of it. I cite the arguments about the phrase “pursuant to” as a classic example of this. The committee brought this out very well on the money laundering directive. You really could not make it up, but the Government were,

“considering challenging the legal basis of a measure it strongly supports solely to preserve its position on the application of Title V”.

That is the definition of shooting yourself in the foot.

Fourthly, this is the complete opposite of winning friends and influencing and shaping EU policies. I feel strongly that justice, like security and law enforcement, is an area where the UK has a big contribution to make. While respecting all our legal rights, it does us no credit whatever to act in this capricious way.

I wish that the last but one Government, the Labour Government, had never negotiated the opt-in protocol in 2007. I personally believe that we could have relied on our political heft and the emergency brake mechanism, but we are where we are, and since we have to operate it, let us at least work in a spirit of sincere co-operation—not subjugation to Brussels, but as a reliable and dependable member state.

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[Baroness Ludford]

I apologise for interrupting, but I want to make it clear that I was expressing a personal opinion.

[Lord Faulks]

I am grateful for that clarification—a difference between the view expressed by the noble Baroness, Lady Ludford, and that expressed on the part of the Labour Party by the noble Lord, Lord Tunnicliffe.

The United Kingdom’s and Ireland’s justice and home affairs opt-in has been in existence for civil justice, asylum and immigration measures since 1997. It was extended to policing and criminal matters with the Lisbon treaty, which came into force in 2009. The intention was to allow the United Kingdom to protect its specific interests, such as the common law legal system and border controls, while retaining the ability to take part in EU justice and home affairs measures where that was in the national interest.

The noble Baroness, Lady Quin, asked whether the JHA opt-in has proved an effective safeguard. I note that her committee expressed no view as to its desirability—expressly so—but she posed that question and asked whether it was an important or even an essential safeguard. I can tell the Committee that it has been used on numerous occasions to protect the United Kingdom from being required to participate in measures which might adversely affect our border controls or our fundamental legal principles. However, the debate with which we are concerned is essentially about the scope rather than the utility of Protocol 21.

The areas covered by Title V of Part Three of the treaty include some of the most sensitive for us as a nation: immigration and border controls, policing and criminal law. The United Kingdom also retains an ability to opt out of measures that build on the Schengen acquis. The UK takes part in police co-operation and judicial co-operation aspects of Schengen but does not participate in any aspects of the acquis relating to border controls. The Government have not applied to join the Schengen provisions on visas and border controls and have no intention of doing so. Any such move by a future Government will require a referendum, thanks to the 2011 Act. I know that that measure was opposed during its progress through this House, but I now understand that it is part of Labour Party policy that there should be a referendum in those circumstances. I shall not go into more detail on the Schengen opt-out, as that has not been the focus of today’s debate.

Protocol 21 was included in the treaties to make sure that any new proposal that was presented “pursuant to” Title V would not bind the United Kingdom unless it chose to be so bound. However, it is the Government’s view that the drafting of the treaty has created a lack of agreement about when the United Kingdom is able to exercise these rights—whether it is necessary for there to be a Title V legal base cited on the face of a proposal or whether it is where the EU’s competence to act flows from Title V, regardless of the legal base cited.

The noble Lord, Lord Richard, rightly focused on “pursuant to” and what he said was a pretty unambiguous interpretation of those words. Of course, the treaty could have said “under” rather than “pursuant to”. As he and the Committee will know, in the government lawyers’ view, “pursuant to” is capable of interpretation rather more broadly than many, or even most, of the academic lawyers who were called before the committee said.

I recognise that the approach of the previous Government—I know that the noble Baroness, Lady Ludford, distanced herself from the previous Government, although it was a coalition Government—is not shared by others, and that it created some challenges. But it is important to recognise that we do not have a definitive legal view on which interpretation is correct. While I accept that the European Court of Justice has taken some decisions on what is or is not JHA content, it has not set out definitively whether the opt-in applies in the absence of a legal base. Unless and until it does, the Government and others must work according to their interpretation of the treaty. I respectfully suggest that describing the Government’s approach as capricious is a little harsh.

The report on which today’s debate has centred helpfully sets out some of the issues flowing from this lack of agreement. These can be very complex and challenging, and the Government must decide on the basis of the evidence before them—

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[Lord Faulks]

I was going to do that very thing.

“Nevertheless, this does not, in our view, amount to a deliberate undermining of the safeguards in the opt-in Protocol. We note that for internal EU measures on JHA policy, the opt-in Protocol is a very effective safeguard for the UK”.

I note that in the course of the debate there has been a very firm disavowal that there was any deliberate intention by the Commission to, as it were, get round the Title V question, but there is an acknowledgement that it may not always be easy to choose the correct title.

The most recent annual report on the application of the JHA opt-in and the Schengen opt-out, which was published in February 2015, shows that the previous Government took 33 decisions under the two protocols during the period between December 2013 and the end of November 2014. Thirty-one of them were taken under the JHA opt-in. Of those 31 decisions, 18 applied to proposals which did not cite a Title V JHA legal base. They included a directive on customs infringements and sanctions, a decision establishing a European platform to enhance co-operation in the prevention and deterrence of undeclared work and several third-country agreements which created legal obligations in the JHA field.

These are all examples of legislation with a JHA impact on the UK that did not cite a Title V legal base. If unsuccessful in changing the legal base, these are the types of cases where a change of approach might mean that the UK cannot exercise its right not to be bound.

The Government are committed to considering carefully any changes to their approach to the opt-in to ensure that we can lawfully exercise the UK’s right under the treaty to protect our national interests by retaining control of our policing, justice and immigration systems. The committee’s detailed report has given the Government a great deal to consider. We do not believe it is in anyone’s interest to rush the process of responding to it, although of course I take on board the criticism that has been made of the delays.

The Government have sought to ensure that the committee and Parliament are kept updated and sighted on developments in individual cases and the policy as a whole. As was acknowledged in the debate, the Justice Secretary and the Home Secretary wrote recently to the committee to let it know that this subject is still under consideration and that the Government would provide a response to the committee shortly. That raises the question of what “shortly” means. I am afraid that the answer is that it will not be until after the Recess. I know that there has been regret about that, but it is important that the content of this detailed report, and indeed of the debate, are fully taken on board by the new Government.

The noble Baroness asked about one particular issue which also forms part of the conclusions—whether we should be thinking of an inter-institutional agreement. I think the noble Lord, Lord Dykes, asked questions about that in the course of the evidence. It is something that will certainly be considered. When the Government have concluded our consideration of the policy as a whole we will take forward such engagement as is appropriate.

The issues relating to the protocol are complex and technical, and go, as I am sure the Committee will accept, to issues of sovereignty in the very sensitive areas that JHA co-operation deals with—policing, criminal and civil law, and immigration and asylum. As the noble Lord, Lord Tunnicliffe, said, the JHA opt-in is extremely important to us.

We note what has been suggested about the litigation strategy. That is something that will be taken very carefully into account.

The Government are concerned, of course, to reflect the protection that the opt-in gives the United Kingdom on these important areas. We will consider carefully our approach to that. The process is not yet complete and we believe, as I have indicated, that we should take time to get it right.

The debate as to the proper approach and whether it should vary from that taken by the coalition Government will be influenced very much by the careful consideration by the committee and the evidence that it called for, which is well summarised by the report. I am grateful for all the contributions to this debate.

[Baroness Ludford]

Before the Minister sits down, I want to clarify that, although he said that I distanced myself from the previous Government, I did not. I distanced myself only from the attitude exemplified in the report. I am, in fact, very proud of the heavy lifting done, in particular, by the former deputy Prime Minister which ensured that the UK stayed in the 35 policing and criminal justice measures. It is no secret that there was disagreement between the coalition partners on these matters. While I am at it, let me say that I was expressing a personal view on Protocol 21, but that does not, of course, extend to the Schengen protocol, which governs border issues.

[Lord Faulks]

I am not going to go into the detail of who was or was not in favour of particular matters that were opted into or opted out of. The noble Baroness referred in the course of her speech to the rule of law, Magna Carta and “pacta sunt servanda”. I assure her that this Government take the rule of law and the desirability of honouring agreements extremely seriously. The commitment of this Government to those remains extremely profound.