Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Debate between Baroness Prashar and Lord Lawson of Blaby

Monday 17th November 2014 Lords Chamber

[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.