Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020

Lord Bowness Excerpts

Thursday 22nd October 2020 Lords Chamber

[Lord Bowness (Con) [V]]

My Lords, I thank my noble friend for her introduction and the clarity that she has brought to these issues. That said, I have great sympathy with the views expressed by the noble Baroness, Lady Hamwee, although, for the reasons given by the noble Lord, Lord Rosser, I cannot support a fatal amendment. I will listen to what my noble friend says in answer to the points raised by the noble Lord.

My attention was brought to these instruments by virtue of their title on engaging citizens’ rights. We need to take the greatest care with the rights of those who, until now, have enjoyed with us not only national but European citizenship.

My first observation about all three instruments is that they are extremely difficult to follow. It may be that I am no good at following these matters but, given the many cross-references to other pieces of primary, European and secondary legislation, we are trying to uncover very tangled documents. While that might not matter for us, and I understand that these issues are complex and must be legally correct and certain, the rules set out in the instruments engage and affect citizens, some of whom will not have English as a first language. There is reference in the Explanatory Memorandum to publication of guidance, which might be fine, but not all official guidance, in my experience, is easy to comprehend, and posting these texts or the guidance on a website will not be sufficient. What efforts will we therefore make to reduce these measures into plain language for citizens to understand without the need for a lawyer, and how will we publicise them? We hear a great deal from Ministers telling us to get prepared for Brexit, but we do not know quite what we are preparing for and we need some clarity.

My second general point relates to the statement in each Explanatory Memorandum that no consolidation version is planned. Surely, with as many pieces of legislation from disparate sources such as these, that should be considered.

Regarding the instrument on frontier workers, I am surprised that there has been no consultation on implementation, even if the Government are bound to produce the regulations. Nor do I understand the statement that the instrument does not affect small businesses, even if they employ frontier workers. The Minister has confirmed that that the application for frontier workers will be free of charge. Can she confirm that the certificate will be free of charge? Further, while the Explanatory Memorandum states that the permit

“can be issued in a digital form”,

does that mean that a hard copy will be available? If so, why are we making a distinction between this permit and the confirmation of settled status?

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

The noble Viscount, Lord Waverley, has withdrawn from the debate, so I call the noble Lord, Lord Foulkes of Cumnock.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Bowness Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

[Lord Bowness (Con) [V]]

My Lords, I thank my noble friend for introducing the Bill, but I regret the context in which it is presented, particularly as it was presented in the other place. Immigration from the European Union has never prevented us permitting the entry of highly skilled and talented people from elsewhere in the world. Indeed, the number of skilled and talented people coming from outside the European Union has always been considerably higher, but there is an implication that EU migrants are somehow of lesser ability. Bearing in mind the number of them working in the NHS, this is clearly wrong.

We have enjoyed considerable benefits from the 2004 enlargement. Yes, the numbers turned out to be greater than anticipated, but permitting migration from the newly admitted nations was a bold move and a gesture to those states formerly under communist rule. Moreover, the move met with only limited opposition from the then Conservative Opposition.

I also regret the Bill because it marks a very clear break with our neighbours in Europe. It signals the end of the benefit of free movement throughout the EU by UK citizens and we should in no way be triumphant about that. No, European Union immigration is not going to deliver the greatness we seek; it never stopped us having it.

It is not clear to me where the negotiations are regarding travel for UK citizens. I have been asking over time about the efforts Her Majesty’s Government are making to ensure that 180-day visas for visitors, which we are giving to visitors from the European Union, are matched by the 27. I understand that this is a matter for separate negotiation with each of them. It may be that my noble friend can tell me where we are and whether the Government are even concerned about the situation and the potential difference in treatment. Can she also tell me where the negotiations are taking place?

I turn now to Clause 5, which I have read carefully, together with the Explanatory Notes. It is probably me, but I found them quite difficult to follow. Does this clause permit the existing rights of those with EU settled status to be changed to their detriment post 2020? My noble friends have already referred to changes to child benefit. What other changes do the Government have in mind and what other provisions are capable of being changed under the Bill’s provisions? Surely people who have applied and are about to apply for settled status need to know that their entitlement will not be different from UK citizens’. My noble friend referred to the outcome of negotiations. This creates uncertainty for EU citizens, who in fairness need to know where they will stand.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2020

Lord Bowness Excerpts

Thursday 16th July 2020 Lords Chamber

[Lord Bowness (Con) [V]]

My Lords, I thank my noble friend for her presentation and explanation of this measure. However, I question why we are considering it in July 2020 when, according to the policy background in the Explanatory Memorandum, this organisation has been on the radar here and elsewhere since late 2018, arrests were made in the UK and the US, and its alleged leader, a 13 year-old boy, was tracked down in Estonia at the beginning of the year. Furthermore, the organisation has apparently been dissolved, so will we need a fresh order if it reappears under another name? Do we know who the members might be who have become active in other organisations?

Also, reference is made in paragraph 3(1) of the Explanatory Memorandum to three organisations, but I assume we are dealing only with this one organisation. I fear that we are a bit behind the curve with our timing: according to reports, the group was established in the Baltic region, probably in Estonia, and the Estonian security service intervened in January 2020, seven months ago. Did we get information about this directly from Estonia or through EU agencies?

A much wider question arises. If we are to react expeditiously when such a group emerges, what arrangements will we have in place with the European Union post 31 December? I again remind my noble friend that the political declaration signed by the Prime Minister spoke of

“an ambitious, broad, deep and flexible partnership”,

the security element of which would include

“law enforcement, judicial co-operation in criminal matters, security and defence”.

Future arrangements should allow for

“timely exchanges of intelligence and sensitive information between Union bodies and the United Kingdom”.

I put it to my noble friend that that includes information about organisations such as this. With great respect, I hope that she will not repeat the usual answer I receive to Written Questions or from the Dispatch Box—that it will depend on the outcome of the negotiations—and that she will let us know what progress we have made and what the consequences will be if we have no agreement on 31 December.

I understand that we are planning to advertise the problems that individuals and businesses are likely to face post December of this year. Does that not signal that there is not much confidence about the outcome of the negotiation and an acceptance of no deal? I ask my noble friend: is the desire to be free of arrangements so great that even security matters are sacrificed?

EU Citizens in the UK

Lord Bowness Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Bowness (Con)]

My Lords, I thank my noble friend Lord Lucas for asking this Question. My only regret is that it has been necessary to ask it. There should be only one answer, and that is immediate confirmation from Her Majesty’s Government that EU citizens lawfully working or resident here will have an unconditional right to remain on the terms they currently enjoy.

Of course it is the responsibility of the Government to achieve the best terms which will govern our future relationship with the European Union, but we also have a wider responsibility to act with decency and honour and ensure we do not inflict unnecessary damage on the remaining 27 states of the Union and to maintain close and friendly relations with our friends and current partners. Allowing doubt on our intentions on this issue will not help those relations, which will be vital to our reputation.

I am told that we are all leavers now. I am a forced and unwilling leaver. My belief in the European Union as a force for good in our continent and the wider world is unchanged. I regret that we are where we are as a result of what I believe to be an unnecessary referendum—one made more difficult to win by some of the principal advocates of remain having spent many years denigrating the European Union and its institutions and then, in a few short weeks, trying to convince an already sceptical electorate that they could not live without it.

As we try to decide what it is we want for the future, we should not play with the future of some 2 million people whom we were happy to welcome here—although I am sorry to say that, in the face of the rise of populist voices, the Labour Party appeared to distance itself from the bold decision it made not to impose transitional rules. The contribution of these citizens to our businesses and economy generally has been widely recognised, and they must not be used as pawns on the negotiating table. To do so can only give comfort to elements in our country and encourage them to believe that there is a possibility of a removal of those EU citizens. Those people exhibiting hostility and some of the worst traits that we have seen is one of the most unfortunate consequences of the outcome of the referendum.

If we do not give the commitment that my noble friend has sought, it will be of no credit to the United Kingdom’s reputation for justice and fair treatment. We cannot expect these people to live under clouds of uncertainty, not knowing if they have a long-term future here. As we have heard, some will no doubt decide to leave in case they are not protected in the outcome of our negotiations.

If Her Majesty’s Government are not receptive to an appeal for fairness, perhaps they will be receptive to an appeal to our enlightened self-interest. We will want to avoid the predicted adverse effect on businesses. We will need friends in the coming negotiations, many of whom represent nations which have the largest number of nationals here who would be adversely affected by any decision other than that which I, my noble friend and other noble Lords are advocating. We have a very real and direct interest in good relations with the European Union and its future. That should have a bearing on our attitude towards the negotiations

We may be leaving, but I hope that it may at least be said at the end, if I may paraphrase Shakespeare, that nothing in our membership became us like our leaving of it.

Justice and Home Affairs: United Kingdom Opt-Outs

Lord Bowness Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Bowness (Con)]

My Lords, as we continue to debate this important matter it becomes for me more and more like one of those television series billed as new but which are in fact repeats of previous programmes with minor updates, which certainly bring us no closer to a finale.

My noble friend the Minister set out the present position for the benefit of the House. I am sure that we are all grateful to him for that. I will not repeat the arguments made by my noble friend Lord Stoneham of Droxford and the noble Baroness, Lady Prashar, who, as the respective chairmen of the relevant EU sub-committees, gave your Lordships a clear exposition of the current situation. Having been involved with the first report, it is enough for me to say that I share their concerns without exception. I also share the concerns of the noble Lord, Lord Boswell, about the failure to provide an impact assessment in respect of those measures that the Government do not wish to join.

Concerns about the timetable are as relevant today as they were when they were expressed in the first report of your Lordships’ committee in 2013. I have always believed that ensuring continuity in the application of those measures is of vital importance and that exercising the block opt-out was unwise given that there has never been any suggestion that the measures into which we do not want to opt back have any serious or detrimental effects on the United Kingdom. To have done so was of benefit only to those who wished to strike a pose and say, as they have said, that they had brought some power back from Brussels. It is wholly illusory, and our political effort and capital might have been better spent on some of the more important issues which face the European Union and its member states.

In May of this year, when the matter was last discussed, I said that I had a feeling of apprehension, if not depression. It may be something to do with the state of my health but that feeling continues. Why is that? It is because we have still not concluded our discussions in Brussels which would enable us to put a final package before Parliament. ln the other place, there are demands for separate consideration to be given to the European arrest warrant. We have moved from the position adopted in our debate in May, when my noble friend Lord Taylor of Holbeach expressed the hope that the second and final vote could be taken prior to this impending Summer Recess. However, in fairness, he qualified his hope—no doubt, in the light of experience—by adding that it would in any event take place,

“well ahead of 1 December”.—[Official Report, 8/5/14; col. 1621.]

Last Thursday in another place, my right honourable friend the Justice Secretary said at col. 548 of Commons Hansard that,

“we still have to complete some areas of discussion in the Council, so I cannot say that we have finally resolved all the issues in Brussels”.

He added, at col. 549:

“We still have work to do in … Brussels and in both Houses of Parliament”.—[Official Report, Commons, 10/7/14; col. 549.]

Will my noble friend tell us what these issues are, what the work is, and how long it is proposed that it should take?

By my calculations, which may not be wholly reliable, there are some 136 days until 30 November, out of which we take some 70 days of parliamentary recess, leaving us 66 days to bring this to a conclusion in Brussels, have a proper debate in both Houses and a vote. We are taking ourselves to the brink over some very important matters.

In conclusion, we cannot undo the opt-out and the Government will have to live with any consequences which may flow from it but I hope that we can at least learn from this experience—namely, that negotiations in Europe take time and you cannot take other institutions and states for granted as they, too, have positions and concerns. In the light of this, I trust that if my noble friends are tempted to bring the European Union (Referendum) Bill back to this House, they will bear in mind the extreme danger of trying to put detailed negotiations, the details of which we do not know, in a straitjacket by imposing a referendum date of 2017. That exercise will make this opt-out performance, which has taken nearly two years since the Prime Minister first announced it somewhere in Brazil and is not yet completed, look like an afternoon tea party.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I thank the noble Lord, Lord Kennedy of Southwark, for the kindnesses he has shown, particularly in his last remarks. He made a number of comments about the current political scene. I have very long memories of this issue in politics, so I do not think that it is necessarily very productive to go down other, party-political routes. In fact, we have a tradition in this House of trying to deal with these matters on their merits. I think that the way we handle these debates is very much to our credit.

I thank all noble Lords who have spoken. A lot of points have been raised, which is hardly surprising, as this is a broad subject—even though it is confined to the JHA opt-out matters, there is a lot of detail. I am going to do my best to reply to points that have been raised, but I hope that noble Lords will be happy if I write one of my usual commentaries on the debate. I find that a very useful way of informing the House. Indeed, in considering this matter, I know that it is nice to have things on the record, but it might be something for those who keep the official records to make a note of letters sent by Ministers, or at least to make them available on the website and not just in the Library, so that noble Lords can be aware of those things for the future. I suggest that as a modernising idea, as it is frequently the case that Ministers need to write in order to provide a proper answer that cannot be given in a debate.

I am grateful to the noble Lord, Lord Boswell, for his chairmanship of the Select Committee and the leadership that he shows on these issues in the House. The noble Lords, Lord Judd and Lord Kennedy of Southwark, both raised the question of transitional arrangements with the Commission and what is going to happen on 1 December. It is not the intention to have a gap between the date on which the opt-in will take effect and the point at which the UK can rejoin the measures. We place a great deal of importance on the issue and believe that it is in everyone’s interest to try to eliminate any operational gap between our opt-out taking effect and our continued participation in the measures that we formally apply to rejoin. If it is necessary to use transitional measures, we consider that transitional arrangements could be used to preserve the legal effects of measures that the Government have said they will rejoin, where there is a short operational gap.

The noble Lords, Lord Bowness and Lord Foulkes, asked when we think that the negotiations will conclude. I think that that is a matter that all noble Lords are aware of—that is, we have made good progress on these negotiations. An in-principle agreement has been reached with the Commission on a package of 35 measures. I say, “a package” because it is not the original package, as was rightly pointed out by the noble Lord, Lord Hannay. However, negotiations with member states are continuing and we are confident of concluding a deal ahead of 1 September so that this operational gap will not occur.

[Lord Bowness]

My Lords, I thank my noble friend for giving way and I apologise for being troublesome. While he is dealing with this point, perhaps he could tell the House—and I understand the difficulty with negotiations—whether in fact discussions are taking place about transitional arrangements in parallel with the main negotiations. Were we to get much closer to 30 November, it would then be rather late to start putting those transitional arrangements together.

[Lord Taylor of Holbeach]

This is a wise Government and all these matters are considered. That is not our ambition. Our ambition is to achieve agreement by that time. There will be an update. We have updated Parliament up to now and we will continue to give Parliament opportunities for scrutiny of the process in future.

The noble Lord, Lord Foulkes, again raised the question of whether this was part of the Prime Minister’s promise to start repatriating powers from the EU. It is a decision that flows from the existing treaty and its protocols that were set in place by the Lisbon treaty, negotiated by the previous Government. If we had done nothing with regard to the opt-out, the default position was that the UK would become subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice. The decision to opt out means that a much smaller set of measures will be subject to ECJ jurisdiction and Commission enforcement powers. We believe that that is what the British public would expect us to do, given that the negotiations conducted by the previous Government led to Protocol 36.

The noble Baroness, Lady Prashar, whom I congratulate on stepping into the shoes of the noble Lord, Lord Hannay, asked whether there was a list of measures subject to the opt-out. We are currently working on producing a full consolidated list of measures that the Government consider subject to the opt-out, and we will provide that shortly.

My noble friend Lord Bowness asked: if the majority of these measures are defunct, in no way harmful to the UK or positive, why bother exercising the opt-out at all? I hope that I have given him some idea of why we thought it was important to deal with this. The ECJ should not have the final say over matters concerning substantive criminal law or our international relations in matters like extradition. That is why the Government will not rejoin over 20 minimum-standards measures on sensitive matters such as racism and xenophobia, or the EU/US extradition agreement. I am clear that our Parliament should have the final say over our laws on these matters, and the Government should be able to renegotiate bilateral arrangements as we think fit.

A number of noble Lords asked why the Government had produced an impact assessment for only 35 measures, not for the full list. The Government have been consistently clear that we will provide Parliament with impact assessments on those measures that we will seek to rejoin. I remember saying that in previous debates. Command Paper 8897 is the fulfilment of that commitment. The UK will not be bound by the rest of the measures from 1 December, and there is therefore no need for an impact assessment.

There was some consideration of the European arrest warrant. As noble Lords will know, we have decided to opt back into the European arrest warrant. We have listened to our EU partners and the UK law enforcement and prosecution agencies, as well as the view of Parliament and indeed our European committees, on this. Critics of the EAW have come to a balanced conclusion on how the EAW can be improved and retain its obvious practical and law enforcement benefits but provide better safeguards for people subject to EAW law. We are satisfied that the reforms made to the EAW will help to address these concerns. My noble friend Lord Stoneham asked whether EAW amendments to domestic law are compliant with EU law. We are confident that they are compliant and are happy to provide more detail by way of the letter I will be sending. We will be able to elaborate and I hope that that will be to the benefit of noble Lords generally.

My noble friend Lord Sharkey said that many of the measures that the Government want to withdraw are more likely to be susceptible to negative ECJ judgments. As I have said throughout this process, the Government are concerned about the risk that the court could make unexpected adverse decisions on the interpretation of pre-Lisbon measures. Given the prospect of an unexpected judgment, and concerns about the drafting of measures and the difficulty of altering EU legislation, we believe that minimising the possibility of an adverse judgment is a sensible and pragmatic approach. It is only correct that the Government consider carefully whether to accept the formal jurisdiction of the ECJ before seeking to rejoin measures. We accept that there is always a risk attached in terms of ECJ jurisdiction if we decide to participate. However, in certain cases it will be in the national interest for the UK to participate and the Government will accept that risk, given the wider benefits of the instrument in question. That is the judgment that rightly rests with the Government in these cases.

My noble friend Lord Sharkey also asked about the special intervention units and whether we wish to rejoin in order to maintain participation in an operational police network at the EU level, called Atlas. We now know that we can continue working through Atlas even if we do not participate in the special interventions unit. This has been confirmed by the Commission, so we will lose nothing by not joining that measure. My noble friend Lord Bridgeman was concerned about whether the UK would rejoin Europol and whether it could force national police forces to act. We confirm that Europol will not be able to force national police forces to act.

A number of noble Lords, including my noble friends Lord Sharkey and Lord Stoneham of Droxford, the noble Baroness, Lady Prashar, and the noble Lord, Lord Kennedy of Southwark, asked what steps were taken at EU level to resolve the problems with the probation measure and what is the timetable for our reconsideration of this? This is quite a complex issue but I think that I have time to address it, because noble Lords will be interested. As the Government set out, it is not in the national interest to rejoin the probation measure at this stage. It is unclear how it would work in practice and we have no evidence to demonstrate that the benefits to the UK outweigh its risks.

We did, indeed, discuss these issues with the Commission. However, we were not able to resolve them. One key issue is that only 14 member states have so far implemented it—and to date it has never been used within those 14 member states. Therefore, we have no practical illustrations of how it would work. We were unable to determine the likely impact of rejoining the measure. In due course, once the probation measure has been used and implemented more widely, and there is sufficient evidence to analyse it, we will reconsider participation after making a full assessment of its impact. I will keep noble Lords informed on progress on that particular measure.

My noble friend Lord Bowness asked about transitional measures and I sought to answer him. I have had a supplementary note to the effect that, in case transitional measures are needed, the matter is being considered in a working group in Brussels; this is parallel to the wider negotiations. Our aspirations are that these transitional measures will not be necessary, but they are being discussed.

That concludes my contribution to the debate today. I thank noble Lords for again presenting the views of the European Union Committee and of this House on an important subject. I will be writing a commentary and look forward to continuing dialogue on these issues. I understand that we have a debate on Tuesday on aspects of the Stockholm agreement. This is not going away. It is a live issue as far as I am concerned, as I am sure it is for other noble Lords.

European Union: Justice and Home Affairs

Lord Bowness Excerpts

Thursday 8th May 2014 Lords Chamber

[Lord Bowness (Con)]

My Lords, I shall not seek to deal with all the points that have been raised by my former noble friend Lord Pearson of Rannoch. Suffice it to say that I am not surprised that he did not want to go into details, because most of the propaganda that comes from his party is pretty light on detail and pretty light on telling people how things actually are.

I am sorry to say that I approach the subject of the opt-out, to which I wish to speak, with a feeling of apprehension, if not depression. It is now more than 12 months since I was a member of the sub-committee of the European Union Select Committee dealing with the law, now chaired by the noble Baroness, Lady Corston, so I am perhaps not as up to date with all the detail as the noble Baroness and the noble Lord, Lord Hannay. However, I am bound to observe that the first report of your Lordships’ House was published in April 2013 and debated in July 2013, after a late government response and the issue of what was a truly dreadful Explanatory Memorandum. The report and the debate, in April and July respectively, emphasised the need to ensure that, since 35 out of the 130-odd measures were, in the Government’s own words, in the national interest and we wished to rejoin them, we did not find ourselves in a place at the time of the opt-out where we had not secured our re-entry to those 35 measures.

A year after the original report and nearly 10 months after the debate, with great respect to my noble friend on the Front Bench, I do not feel much wiser as to where we are. However, one thing I know is that the impact assessments in respect of those measures that we wish to rejoin—never mind the impact assessments, if at all, of those that we do not intend to rejoin—are still awaited. In that dreadful Explanatory Memorandum, there was a reference to an impact assessment, which I will read:

“At his appearance before the European Scrutiny Committee on 28 November”—

that has to have been in 2012—

“James Brokenshire gave an undertaking that the Government will provide an Impact Assessment on the final package of measures that the Government wishes to rejoin, should the Government decide to exercise the opt-out”.

That is one of the reasons why I feel a bit depressed, because still there is no sign of that impact assessment as more and more months go by. Soon we will be in the summer and there will be a new Commission, and probably too soon it will be 1 December, so I am concerned as to what progress is being made.

I understand that my noble friends on the Front Bench cannot give details of the negotiations. However, perhaps it is worth noting what my right honourable friend the Home Secretary said in the other place on 7 April in reply to Mr Keith Vaz. This was confirmed in a Written Answer given to my noble friend Lord Inglewood earlier this week. She said:

“Detailed and constructive discussions are taking place with the European Commission and other member states”,

and that the Government are keen to avoid the possibility of an operational gap,

“that will ensue if we have not settled the matter before 1 December, when … the UK’s opt-out takes full effect. Our aim is therefore to reach an ‘in principle’ deal well ahead of that date”.

What do we mean by “well ahead” of that date? In that debate in the other place, Mr Keith Vaz also put this question to the Home Secretary:

“Has she seen reference made to a note by the Greek presidency that was published by Statewatch—it was leaked; it was not published by the presidency—that the United Kingdom needs to have its re-opting list agreed by June 2014; in other words, before the parliamentary recess? Has she seen that note and is that the case? Do we have to get all our priorities ready by then?”—[Official Report, Commons, 7/4/14; col. 27.]

No definitive response was given to that question.

Later in the debate, my right honourable friend the Lord Chancellor talked about the second Motion to be put to Parliament. He said:

“We will come back to the House at the conclusion of the negotiations with the Commission and the Council to offer the House the further opportunity to endorse or reject what we are doing. If this House rejects what we are doing, clearly it will not be possible for us to return to the Commission and simply override the view of this House”.—[Official Report, Commons, 7/4/14; col. 90.]

When it is asked whether the Motion would be amendable, the question of the details of the Motion is deferred to a later date. Faced with the summer, the new Commission and the date of 1 December, I fear for the progress and the time that this whole exercise is taking.

I will admit that I have always considered the whole exercise to be expensive, time-consuming and, in terms of our relations with our EU partners, relatively pointless, since the Government’s own Explanatory Memorandum did not identify any one of these 130-odd measures as being detrimental to the national interest. I also note that my party, which I support in the vast majority of instances, says that its priorities for Europe include fighting to make our,

“police forces and justice systems able to protect British citizens, unencumbered by unnecessary interference from the European institutions, including the European Court of Human Rights”—

which of course is nothing to do with the EU in this conversation—and is seemingly ignoring all the evidence that has been given by police and legal sources supporting many of these measures. I wonder whether we are indulging in some kind of ritual dance involving opting out and then opting back in so that at some time in the future we can negotiate to come out again. I hope that my noble friend will understand my concerns, my apprehension and my depression, and why I am probably very confused.

EU: Police and Criminal Justice Measures

Lord Bowness Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Lord Bowness]

My Lords, it is a pleasure to follow the noble Lord, Hannay of Chiswick, with whom I, as the then chairman of the justice, institutions and consumer protection sub-committee, worked closely in the previous Session of Parliament when that sub-committee and his home affairs sub-committee conducted the inquiry into the UK opt-out. I agree with many of his comments and I should tell your Lordships that, had a new Motion not been laid before the House tonight, and had we been debating the terms of the original Motion, I would have supported the amendment of the noble Lord, Lord Hannay, and voted for it, had he called a Division.

I speak tonight, however, on my own account and I cannot speak for the current chairman, the noble Baroness, Lady Corston, or the current members of the committee, of which I am no longer a member. Members will understand that for that reason, and because it arrived in the House at about 2.30 pm, I will not comment on the Government’s response to that report.

I can however speak of the findings contained in that report and the evidence on which it was based. The sub-committees had decided to carry out an inquiry prior to 15 October and the announcement of my right honourable friend the Home Secretary, who stated on that occasion that the Government were minded to exercise the option, that it would be the subject of a vote in each House, and that the relevant committees of each House would be consulted before reaching a definitive position, the process of which tonight’s Motion forms part was set in train.

Subsequent to my right honourable friend’s Statement, five Explanatory Memorandums were promised to your Lordships’ committees. They were promised for January or early February—and latterly promised an impact assessment. The impact assessment has not yet, to my knowledge, been seen and the Explanatory Memorandums were produced as the White Paper referred to by the noble Lord, Lord Hannay, only on 9 July, when the Home Secretary made her Statement to the other place. She also made it clear on that occasion that what must happen next is a process of negotiation with the European Commission and other member states, and that those negotiations will determine the final list of measures that we formally apply to join.

The Motion originally laid before the other place expressed the belief that we should opt out, rejoin the measures that were described as being in the national interest to rejoin and seek further reports from the relevant committees prior to formal discussions with the Commission and the Council on the set of measures in the White Paper—all prior to formal application to rejoin. In parentheses, I think the delay in opening the negotiations until October will prove unfortunate, as time—and as much time as possible—will be needed for the negotiations to rejoin.

That original Motion at least contained a definitive linkage between the decision to opt out and the 35 measures described at various times as being in the national interest and a commitment to negotiate on those matters. However, that Motion was amended and the Motion carried in the other place omits reference to those matters in the national interest and the Command Paper. The right to exercise the opt-out is absolute and is in the treaty, but readmission to measures to which we wish to be readmitted is not.

The Schengen measures require unanimity in the Council; the other JHA measures are dealt with by the Commission, who may present a proposal to the Council for transitional arrangements—decisions in which we will not necessarily participate. The principle of coherence means that we may not be able to rejoin one measure without rejoining another linked measure, and that may not be acceptable to the UK

This will all take time and there is no certainty. When we were preparing the report, we received no evidence that the Commission would seek to frustrate our rejoining. As to the other member states, the Government were unable to tell us what conversations had taken place. However, like the noble Lord, Lord Hannay, I agree with the proposal to reapply to join the 35 measures described as being in the national interest.

The Motion originally laid before the House, as has been stated already, was merely to note those proposals and that was not good enough. I am therefore very grateful to my noble friends Lord McNally and Lord Taylor of Holbeach for recognising the significance of these measures and agreeing that the Motion should endorse the Government’s proposals in the Command Paper, which sets out the 35 measures that they will seek to rejoin.

The final decisions as to opting out and the measures to apply to rejoin are executive decisions for the Government, albeit that they have spoken about consulting Parliament. So I ask the Government to assure the House that the House will be informed if their intentions regarding the 35 should change.

What of the other 130-odd measures? These, together with the 35, are the subject of the Explanatory Memoranda in the White Papers. I have to say with regret that the Explanatory Memoranda are extraordinarily badly prepared—and even worse presented. It is not clear on what basis the Government chose the 35. No clear reasons are given, apart from the Prüm decisions where there are concerns about costs. Some are stated to be defunct and so presumably of no real concern; some are said not to be needed because we have dealt with them administratively or in domestic legislation. As the noble Lord, Lord Hannay, said, none is stated to be harmful.

House of Lords reports are generally acknowledged as being evidence-based. The report on the opt-out was so based. We made it clear that decisions on the opt-out should not be made without certain information on which to base that decision. In our report, members of all parties and none concluded that the Government had failed to make a convincing case in favour of the opt-out. We also made it clear that we could not form a view about which measures we should seek to opt back into without a provisional list of measures and an analysis supported by the impact assessment, and that the decision to exercise was necessarily linked with the measures that the Government wished to be able to rejoin.

We were struck by clear and preponderant evidence from witnesses from the legal, law enforcement and prosecutorial professions as to the potentially negative impact of exercising the opt-out. Now, somewhat belatedly in the whole process, we have the provisional list of measures but not the other elements required for final decisions. We are being asked to express a view about opting out without a proper assessment or analysis of whether the benefits of opting out outweigh the possible risks and uncertainties of an application to rejoin. In short, is the game worth the candle? I ask the Government in due course to report to Parliament on the progress of the negotiations so that judgment may be made.

In the mean time, while I remain profoundly unhappy about many aspects of the whole process, I will not oppose this Motion, which goes some way towards addressing the concerns of those who believe the idea of exercising the opt-out to be misconceived. However, and this is crucial, were we to defeat this Motion, we would lose the opportunity, which was lost in the other place, of placing on record and binding in our belief that the 35 listed measures are in the national interest; and we will have lost the opportunity to endorse the Government’s welcome intention to apply to rejoin the same. We can return to the other 130 later, and no doubt they will feature in the reports that have been requested from committees of your Lordships’ House.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I am sorry about the noble Baroness’s unwillingness to support the Government on this Motion. If people say that there is no passion or conviction in British politics, they should have been listening to this debate, because it has shown that there is indeed a lot of passion and conviction on this issue.

Before I address the points that have been made during the debate, I join my noble friend Lord McNally in thanking the noble Lords, Lord Boswell, Lord Hannay and Lord Bowness, for their chairmanship of the committee, which produced a formidable body of work for the Government to consider, and its ongoing role in scrutinising this matter. The Government are appreciative of the committee’s high-quality and thoughtful report, which has been integral to the decision-making process behind our decision to table the Motion this evening. I look forward to working with the noble Baroness, Lady Corston, as chairman of Sub-Committee E.

The Government have today replied. Noble Lords have said that it is plenty late enough, but we have replied to the committee’s report on the matter. Copies of the reply are available and I am sure that a number of noble Lords have taken the opportunity to look at it. We would like noble Lords to consider it alongside the letter of 18 July, sent to the noble Lord, Lord Boswell, which can be found in the Library of the House.

To return to today’s business, I am grateful to the noble Lord, Lord Hannay, and to my noble friend Lord Bowness for meeting me yesterday. It was incredibly helpful to me personally, and the amended Motion that we have tabled reflects the outcome of these discussions. I hope that the whole House can support the government Motion. I would regret it if that were not the case.

On 9 July, the Home Secretary reaffirmed the Government’s intention to exercise the opt-out. Noble Lords will be aware of the background to the opt-out and there is no need to remind them of its origins. However, as I listened to the speeches from the Benches opposite, I wondered why, when they were in office, they negotiated the opt-out. They must have believed in it once, so what has happened to that belief? As my noble friend Lord Hodgson asked, why did they take such care to ensure that the Lisbon treaty contained this protocol, the provisions of which we now seek to exercise?

In the other place on 15 July, there was a debate on this issue and a vote to exercise the opt-out and rejoin the measures where it is in the national interest to do so. I am grateful to my noble friends Lord Sharkey, Lord Bowness, Lord Eccles and Lord Hodgson—and many other noble Lords—who said that they find the 35 measures that the Government seek to rejoin sensible. The noble Lord, Lord Williamson, also agreed that these were sensible measures for the Government to seek to rejoin.

I must reassure my noble friend Lord Blackwell that the Government have made a considered judgment on this issue. They are confident that, in using the test of the national interest, they have properly identified those 35 measures that they will seek to rejoin. These 35 measures listed in the Command Paper represent government policy. My noble friend and I will have to agree to differ about whether we are right to seek to rejoin those 35 measures.

It might help noble Lords if I explain what happens next. On that point, I must return to the question of scrutiny and the work of the European Union Committee. I think that all noble Lords accept that the European Union can play an important role in tackling cross-border crime. This Government understand that, but equally we understand that decisions taken at EU level, or about the EU’s role in dealing with crime, must be subject to rigorous scrutiny. That is only correct and the UK Parliament must be sovereign in exercising this scrutiny.

Scrutiny can be an iterative and long-running process, especially on a matter such as this. That is why today’s Motion from the Government invites the European Union Committee to give a further view on what measures it believes we should rejoin. I hope that Command Paper 8671, which sets out those measures that the Government believe are in the national interest to rejoin, provides a useful starting point. I hope sincerely that the House can endorse that list today, but let me be clear that any endorsement cannot pre-empt the work of either the committee here or the committees in the other place in looking at all the measures. I expect that that is the point at which the noble Lord, Lord Davies of Stamford, can apply his scrutineering endeavours, since he went through various measures on which he had comments to make. I expect our committee in this House to come back with a thorough examination of the Government’s decision and I look forward to receiving it.

However, I have to ask the House to note that the Government have committed to not beginning formal discussions with the EU institutions or other member states until November. That is to ensure that the committee in this House and the relevant committees in the other place have time to report. All the reports will be carefully considered by the Government. Further to that, noble Lords will know that there are methods whereby committee reports can be brought before the House for debate. I hope that those will be promptly exercised in this instance as I look forward to a prompt debate on our committee’s report.

[Lord Bowness]

My Lords, I am sorry to interrupt my noble friend, but while he is talking about process and procedure can he perhaps explain to me, if to no one else, the following? In the debate in the other place, my right honourable friend the Home Secretary said that the mandate that she was seeking that evening would lead to the UK exercising the opt-out. Precisely when is it envisaged that we will give formal notice to the Council of our intention? Is it to be after we have passed, if we do, the Motion tonight or will it be after there has been consideration of the reports by the relevant committees?

[Lord Taylor of Holbeach]

The Government do not have to give formal notification until 31 May, but the votes in this House and in another place provide authority for the Government to commence negotiations with the European institutions, which is why this debate is important. It provides an opportunity for those informal negotiations that will lead, post November, to formal negotiations with the European institutions. Perhaps I may turn—

EU: Justice and Home Affairs

Lord Bowness Excerpts

Wednesday 22nd June 2011 Grand Committee

[Lord Bowness]

My Lords, like the noble Lord, Lord Hannay, I welcome the publication of this first annual report. I am pleased that the Government have maintained the commitment of their predecessor to continue the practice of publishing such a report.

An interesting aspect of the annual report is in a paragraph on page 2, which bears reading out:

“This Government recognises that cooperation on Justice and Home Affairs can deliver key benefits, helping us to tackle cross border crime and to make it easier for British citizens to do business across borders. Such cooperation can also help enhance the UK’s security”.

I read that out because it is as well that we remind ourselves of that fact, particularly having sat through a number of hours of debate on the European Union Bill when you would have thought, from listening to some contributions, that nothing was further from the truth than that paragraph.

I am pleased to say that Sub-Committee E on Justice and Institutions has agreed on the whole with the Government’s approach to many of the proposals that have come before us; as the noble Lord, Lord Rowlands, has indicated, we see a great number. With regard to the investigation order, I say to the noble Baroness, Lady Falkner, that while that decision was taken to opt in, as reported, it is still a live item of scrutiny before my sub-committee.

On balance, we consider the Government’s and indeed the Commission’s case-by-case approach in the field of criminal justice to be the right one. We have seen the road map, the list of measures set out in that document to safeguard the rights of suspects and defendants involved in criminal proceedings. If those are all enacted, there will undoubtedly be common standards throughout the European Union, which will benefit any British citizen unfortunate enough to be caught up in criminal proceedings elsewhere.

It is worth noting that the approach on criminal justice has been quite different from the approach on civil justice. While the sub-committee has welcomed the vast majority of proposals in connection with criminal justice, we have had severe reservations about the proposals in the area of civil justice. Proposals to try to bring common approaches to matters such as succession and the division of matrimonial properties after divorce and the contract law proposals currently being discussed raise huge issues, which, as the noble Lord, Lord Rowlands, has indicated, bring us into conflict not with our partners, the principles or the objectives—many of the objectives are indisputable and worth while—but with different systems and principles of law, particularly in connection with property. Therefore, we have not been able to be as positive about the proposals that have come forward.

I am pleased to say that the sub-committee has generally found itself in agreement with the coalition Government’s approach. I think that there was only one major item of disagreement, where in the first instance the Government did not wish to opt in to the new legislation on human trafficking. We found that logic very difficult to follow. It is at odds with lots of other decisions to opt in that the Government took quickly. However, I suppose that one must always rejoice in those who repenteth, because eventually the decision to opt in was indeed taken.

Perhaps I may raise two other issues, as they are relevant to this report. I am extremely concerned about the provisions in the EU Bill. One matter is stated in this report, so I consider myself to be in order in mentioning it. I refer to the statement that in no circumstances will the Government consider an opt-in to any proposal for a European prosecutor’s office. I believe that that is a mistake because we do not know what the circumstances will be should the need for a European prosecutor’s office arise. I have no doubt that, were we to find that there had been huge fraud in respect of European Union funds and that some member states were unwilling—whatever the reason—or unable to take action, there would be great demands from the public to know why something was not being done. This is all hypothetical but if it were ruled out altogether and then, in the Bill, made subject not only to an Act of Parliament but to a referendum, that referendum would, I am the first to admit, be almost impossible to win because of the climate of public opinion. It is a pity to have such a statement because, as I said, we do not know where we will be in the future.

Lastly, perhaps I may ask the Minister about the decision that has to be taken by May 2014 in respect of the pre-Lisbon treaty police and criminal justice instruments. At the moment they remain unamended and, unless we opt out, they will become subject to the Commission’s infringement proceedings and the jurisdiction of the European Court of Justice. I am advised that that will be not an item-by-item decision but an all-or-nothing decision. In two Written Questions I have asked how many such instruments there are. In the last Answer I was told that there are somewhere between 80 and 90. The estimate is not mine, because I cannot remember; it is the Government’s estimate given in the reply. The whole thing is subject to consultation with the Commission. I say to the Minister that it is very odd that we as a Government of the United Kingdom cannot say how many instruments are applicable and form part of the law of this land on a given day. I accept that if they are amended between now and the relevant date the number will change, but I think that, first, we should know and produce as quickly as possible a list of the instruments that are effective and in force on a given date so that those who are going to have to consider the ramifications of the decision—it has to be made by May, whatever it may be—know precisely what the topics are. I think that some of them will be of considerable importance.

--- Later in debate ---

[Lord Hannay of Chiswick]

I am sorry to interrupt the noble Baroness and am grateful to her for giving way. As the noble Lord, Lord Pearson, has repeated his view several times in an attempt to get the Minister to state positions prematurely, I want to record that my committee thinks that the Government should take the fullest amount of time necessary to weigh up what will be an extremely important set of decisions. We do not think that the noble Baroness should be rushed into making premature statements of what that decision will be. These are very complex matters that will not be easy to decide, and I do not think that my committee would in any way wish the Minister to be moved towards premature clarification.

[Lord Bowness]

I do not wish to make a habit of interrupting the Minister but perhaps I may repeat the question that I asked earlier. I understand that it takes time for this consideration, but is there any reason why we cannot have a definitive list of the instruments that are in force? I appreciate that the number may vary if they are amended between now and then, but can we have the definitive list of measures? It seems very strange that we are unable to give a positive answer to a Parliamentary Question.

[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.