European Union (Notification of Withdrawal) Bill

Debate between Lord Bowness and Lord Taylor of Holbeach

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Bowness (Con)]

My Lords—

[Lord Taylor of Holbeach (Con)]

My Lords, we need to try to organise this debate so that we hear all sides of the argument. I hope that noble Lords will understand if I suggest that it is the turn of my noble friend Lord Tebbit.

Justice and Home Affairs: United Kingdom Opt-Outs

Debate between Lord Bowness and Lord Taylor of Holbeach

Thursday 17th July 2014 Lords Chamber

[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.

EU: Police and Criminal Justice Measures

Debate between Lord Bowness and Lord Taylor of Holbeach

Tuesday 23rd July 2013 Lords Chamber

[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—