EU: Police and Criminal Justice Measures

Lord Blackwell Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Lord Blackwell]

My Lords, the change in wording of the government Motion poses me with a dilemma. Although I wholeheartedly support the decision to exercise the opt-out, I have to say that I am not in any position today to want to commit to endorsing opting back in to 35 measures and, in particular, these 35 measures.

Various Members opposite have suggested that the Government were seeking to pander to, as the noble Lord, Lord Hannay, said, the “wilder shores of Euroscepticism”. I am afraid that the Government, in attempting to cosy up to the Europhile cabal, have left the mainstream Eurorealists in the country out there somewhat bemused. It is a dilemma that the Government will have to resolve. I believe that a strong justification is needed to remain in any of these measures, although I know that that goes against the conclusions of the EU Select Committee report. I am normally a great supporter of the wisdom and analysis that comes out of the European Select Committees but I have to say that I was thoroughly disappointed with this report, which started off with the assertion that the committee concluded that proponents of opting out offered no,

“convincing reason for exercising the opt-out”.

If it started with that assertion, it is no surprise that it ended up—

[Lord Hannay of Chiswick]

I am very grateful to the noble Lord for giving way. If the report started with that, it is odd that the paragraph is numbered 275. The report ended with that because its conclusion was based on a vast amount of evidence and was supported by members of both sub-committees and the overall committee, from all parties and from none. That is worth remembering.

[Lord Blackwell]

The noble Lord might like to note that the phrase is in the summary at the front. I will explain why I, for one, think that that is a totally incorrect conclusion. There is a strong reason for opting out of all these measures. Maybe there are reasons for opting back in to some of them, but there is a strong reason for starting with the presumption that we should opt out. The mistake that the committee, and I am afraid maybe the Government, made was to look at each of these measures pragmatically, on the marginal basis of whether there was some value in each particular measure. That ignores the fact that every one of these measures has a price, which is the transfer of some sovereignty from the UK Parliament and the UK courts.

There is a bigger issue, which the committee totally failed to address, although I am sure that the evidence was presented. Where measures are transferred to European legislation and European courts, where is the democratic accountability for those laws and judgments that govern the freedom and justice of UK citizens?

[Lord Anderson of Swansea]

Would the noble Lord not agree that a measure such as the European arrest warrant is not a transfer of sovereignty but a measure of co-operation?

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[Lord Blackwell]

No, my Lords, I would not agree, because it comes under the jurisdiction of the European Union. A measure of co-operation would be if such a thing were agreed under the European Council, which is what I would certainly advocate. We are talking not about co-operation but about legislation from a European body, and opting in to any of these measures is a one-way, irreversible transfer of the power of this Parliament to legislate on the justice, freedom and criminal acts of UK citizens.

[Lord Liddle]

What is the point of having parliamentary sovereignty if you cannot use it to catch criminals who take refuge outside our country?

[Lord Blackwell]

There is no reason why the UK cannot co-operate with other countries to do exactly that. It does not need the European Union to legislate for that. I am going to make progress because otherwise we will be here all night.

The fact is that, once we have opted in, the normal EU legislative processes take over. That means that any one of these measures, however nice or gentle they may appear now, can be changed by the EU legislative process. That means that there will be qualified majority voting on all these measures once we have opted in. The UK will not have a veto, and the UK Parliament will not be able to take a view on whether those measures are just and appropriate treatment for UK citizens because we will have opted in to something where the European legislator can decide on changes to any of these measures by qualified majority voting.

When we pass laws, we have to think not just about how Governments act now but about what future Governments may do. We have very little control over the way in which future Governments in this country may operate, and we have even less control over what may happen to Governments in other parts of the European Union. This amounts, in effect, to a huge Henry VIII transfer of powers out of this country to a body over which this Parliament will no longer have control. This is happening in a vital area of law affecting the criminal justice system and the freedoms and rights of every UK citizen. I cannot see how the UK Parliament can happily stand by and say that we should not opt out of that, and opt back in to things only where there is an irrevocable case that it is the right thing to do.

It seems to me that many of these 35 measures go far beyond what one could justify in terms of benefiting UK citizens without running the risk of democratic deficit. The European arrest warrant has been mentioned many times. Fundamentally, it allows courts outside the UK, by laws passed outside the UK, to determine that a UK citizen should be deprived of his rights and sent to another country to face justice and internment without any UK court having the right to decide whether those laws were just and whether the evidence justified it. I do not believe that any of us can stand in front of a UK citizen and justify that as being in their interest. It may be efficient—dictatorship is efficient—but it is not democratic. The Government say that they have some measures that will ameliorate the worst aspects of that. I am not sure—and this House needs to be sure—that those measures will actually stand up against the European Court before we can be satisfied that the European arrest warrant has been dealt with. The same is true of the measure on the mutual recognition of confiscation of assets, where individuals in this country can have their assets frozen and confiscated by order of a court outside the UK without any UK court having the right to challenge the evidence and interrogate whether or not those laws were being applied appropriately.

Europol and Eurojust may sound like good ideas but what may they become? Once they are evolved by QMV over a period of years, what will we have signed up to? We do not know. That is why I believe that we should opt out and negotiate things on a bilateral and multilateral basis under the Council of Europe, where we have the choice that if we do not like those measures, we can pull out and Parliament can legislate. Parliament should retain sovereignty over things which affect fundamental freedoms and justice in this country.

The noble Lord, Lord Richard, asked the Government for an assurance that the word “endorse” in this Motion meant that the Government were committed to these 35 measures. I have to ask my noble friend to give exactly the opposite assurance—that while the Government may go into these negotiations seeking reasonable agreements on these 35 measures, there will be no irrevocable decision tonight that the UK will opt in to them without this House having a much longer and more detailed opportunity to debate each one, and the Government giving us a sound justification for why they thought it was appropriate to remove sovereignty from the British people.

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[Lord Taylor of Holbeach]

Exactly. There will be informal negotiations to start with because, until the reports from the sub-committee are produced in November, the Government do not intend to open up formal negotiations. The noble Lord is exactly right and I am grateful. I should have given way to him earlier. It was a very helpful intervention on his part.

I was going on to say that the noble Lord, Lord Maclennan, challenged my noble friend Lord McNally on the whole business of the referendum. The noble Lords, Lord Tomlinson and Lord Grenfell, and the noble Baroness, Lady Smith, repeated this. There is a very clear answer and I will read it. The European Union Act sets clear criteria for when a referendum would be necessary. These are set out in Section 6 of the Act. This decision is not one of the areas where a referendum is required. Changes to the Treaty on European Union, the TEU, or the Treaty on the Functioning of the European Union, the TFEU, or a decision made under Article 48(6) of the TEU potentially attract a referendum under the European Union Act 2011. The 2014 decision is not a treaty change, nor a decision under Article 48(6) of the TEU. Instead, it is something that flows from the existing treaty and, as such, it is not subject to a referendum. I hope that that categorical assurance reassures the House on this issue.

There have been some discussions about whether we are right to exercise the opt-out. The noble Lord, Lord Richard, raised doubts early on in the debate about whether this was a wise decision. My noble friend Lord Taverne questioned whether we were doing the right thing and a number of noble Lords have also done so. The Government are of the view that we should exercise the opt-out for three reasons: principle, policy and pragmatism. On principle, it is our view that the UK’s international relations in the field of police and criminal justice are a matter, first and foremost, for the Government. For example, the Government believe that, if necessary, we should have the option to amend our bilateral UK-US extradition and mutual legal assistance treaties as we and the US wish. However, currently any changes would need to be in conformity with the EU-US agreements.

In terms of policy, the UK has and will continue to have the ability to choose whether it should opt in to any new proposal in the field of justice and home affairs. It is therefore only right that we take the opportunity to consider on a case-by-case basis whether we wish to retain the pre-Lisbon measures and allow the CJEU to exercise jurisdiction over them. The key question that the Government have asked themselves in this regard is whether it is in the national interest to rejoin a particular measure.

Finally, we are being pragmatic. We are not going to be in a position to implement Prüm, for example, which requires member states to allow reciprocal searching of their databases for DNA profiles, vehicle registration and fingerprints, before December 2014. Implementation is likely to take years and require substantial funding. By choosing to remain bound by Prüm after 1 December 2014, we run the very serious risk of being infracted for failing to meet our obligations under the EU. The Home Secretary and Justice Secretary set all this out in a letter last Thursday. Others can disagree with it, but the case has been made and that is the Government’s position.

There is some concern, which has been stressed again by noble Lords, about why we are having this vote today. I think the nub of the question put to me by the noble Lord, Lord Richard, was, “Why do we need a vote today?”. We need, as I have said, to begin these informal discussions but we need also to allow some time for scrutiny of the measures and the decisions as they go along. The EU Committee has suggested in its report that the Government should have started negotiations at a much earlier stage. However, the Government would have been presumptive to have done so without allowing Parliament to have a say on the matter. The Commission DG for Justice, Françoise Le Bail, has said:

“But I guess the key issue is to have a decision by the British Government. There is nothing else we can do before that”.

That is why we have asked for this vote today. In effect, from this moment, we will be able to enter into those informal negotiations.

A lot of anxieties have been expressed, and the noble Baroness, Lady Smith, repeated the point about the risk of a gap between our opting out and our rejoining. Noble Lords will of course understand that there will be a transitional arrangement. The timetable is that the actual opt-out does not occur until 1 December 2014, so there is a period for negotiations, which we believe will include transitional arrangements. We do not see a gap as being a serious obstacle for us in presenting to our European colleagues a proper case for renegotiation in respect of those bodies that we want to opt in to. Indeed, all the discussions that we have had with colleagues in Europe have given us the feeling that we can be confident that they will be pleased that we have actually made a decision on this matter and that we will be in a positive position in respect of the 35 measures to which we will be opting in.

[Lord Blackwell]

Can my noble friend give me one more assurance? Can he confirm that, once the British Government have concluded their negotiations and we know what the conditions will be for opting back in to, for example, the European arrest warrant, Parliament will then have an opportunity for a final say on whether or not it agrees with those opt-ins?

[Lord Taylor of Holbeach]

Yes, that is indeed provided for. After 31 May, not only will impact assessments be generated for each of the measures to which we are opting back in but there will be a second vote on the 2014 opt-ins. This is a journey which Parliament and Government have to undertake together. I understand the passions of noble Lords on this issue but I hope that we can establish, on the terms of the debate that we have had this evening, a proper dialogue so that we can actually discuss these issues and give those people who disagree with the Government a proper sense that they have an opportunity for dialogue with us.