EU: UK Opt-in Protocol (EUC Report)

Debate between Lord Faulks and Baroness Quin

Wednesday 15th July 2015 Grand Committee

[Lord Faulks]

The French and German interpretations are also referred to in the committee’s report. Of course, the protocol has to be read as a whole on what its intention was. While I do not want to weary the Committee with the evidence that was given by government lawyers, the noble Lord will recall, no doubt, the fact that Article 1 should be read in the context of Articles 2 and 3. Indeed, I remind him of what John Ward said in his evidence to the committee, when the then Secretary of State for Justice and the Home Secretary gave evidence. He said, in answer to a question from the noble Lord, Lord Elystan-Morgan, that,

“I think it is important that the words ‘pursuant to’ need to be read in the context of Protocol 21. Protocol 21, we say, is different because of the particularly sensitive nature of justice and home affairs matters. But it is clear, looking at the context of the rest of the treaty, that it is fully recognised that justice and home affairs matters are difficult and sensitive, which helps to interpret Protocol 21”.

[Baroness Quin]

I would like to pursue this further. The phrase “pursuant to”, which my noble friend Lord Richard referred to, generally has an accepted meaning, both in English and in the other language versions, which applies throughout EU legislation, and it is simply the Government who have one view and everyone else has another view. Is that not the case?

[Lord Faulks]

Of course, I do not dispute the evidence that the committee heard. The argument that was used in the course of the questioning by the noble Lord, Lord Elystan-Morgan, was that we should be looking at the natural, ordinary meaning, which is the traditional way of interpreting a statute in British law. A purposive interpretation would admit a rather broader interpretation of what the protocol was intended to achieve in terms of the opt-in and opt-out.

These are deep legal waters, and we could spend a great deal of time debating this. I accept that the preponderance of legal opinion was against the government interpretation, but I respectfully refer the Committee to the fact some of the difficulties were acknowledged by the committee in the course of its evidence—not, I accept, specifically to deal with the “pursuant to” aspect, but to do with the choice of legal basis. Paragraph 119 of the committee’s report states:

“Dr Bradshaw said that the Law Society had no insight into the Commission’s thinking, but noted that the choice of legal basis was ‘a matter of profound disagreement on occasion, not just between the EU institutions and the member states, but also within and among the EU institutions’”.

Indeed, the conclusions of the committee at paragraphs 184 and 185 were:

“We agree with witnesses who have suggested that the CJEU’s approach to determining the legal base of international agreements means that the complexity of an agreement is not always reflected in the resulting choice: it renders somewhat invisible the ancillary or secondary objective, including ancillary or secondary JHA objectives. We understand why this would cause concern to the Government”.