Counter-Terrorism and Security Bill

Debate between Lord Hannay of Chiswick and Lord Lamont of Lerwick

Monday 9th February 2015 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I add my thanks to the Minister for the latest amendments that he has tabled, which met very clearly points made by me and others in the debate on Report. I hope that he will not feel the need to answer too clearly the question put to him. In the professional field in which I practised for many years, clarifications were what you called changes of substance that you did not wish the Opposition to be able to say was a change of substance.

[Lord Lamont of Lerwick (Con)]

My Lords, the Minister has been absolutely showered with garlands and bouquets. I am sure they are extremely well deserved and I am very reluctant to strike a discordant note—and I will not. However, I wish to follow the point made by the noble Baroness, Lady Williams, on the guidance notes. Everyone is talking about academic freedom but in the Bill it is not just about academic freedom; it is also about freedom of speech on campuses and meetings held in universities. I am concerned about this because recently a degree of intolerance has sometimes been shown, with people trying to ban meetings in universities. Therefore, I have been a little worried about some of the things in the guidance notes.

The Minister will recall that I was puzzled, as was the noble Lord, Lord Macdonald, by his concept of non-violent extremism. I was not altogether convinced by the Minister’s reply as to what that meant. However, what really alarmed me was the substance of the guidance notes. I come to this very fresh, compared to people who have been looking at this for a long time. I drew attention to this business of having to give advance notice of what your speech was going to be about, and rating speakers from seven to 10—or one to 10—on how much risk there was of them causing a disturbance on campus. How do we rate David Irving or Marine Le Pen? These are very difficult judgments to make.

I went through a number of the provisions. In reply, the Minister just said, “Some people made a lot of fun of the guidance notes”. He did not answer any of the points. As the noble Lord, Lord Butler, said, a lot of this is pretty unworkable. It reminds me, as I think it reminded the noble Lord, a little of some regulation put forward by the FSA and the FCA. There is a lot of box-ticking in this.

I am sure that the concessions the Minister has made on academic freedom are very important. I am sure that they have satisfied a lot of people. That is thoroughly to be welcomed, but I very much hope that the points made about the guidance notes will be taken into account in any reconsideration of them.

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

Debate between Lord Hannay of Chiswick and Lord Lamont of Lerwick

Monday 17th November 2014 Lords Chamber

[Lord Lamont of Lerwick (Con)]

My Lords, I am grateful to the noble Lord, Lord Bates, for introducing this Motion, albeit that he did so at a somewhat galloping pace, which is perhaps not surprising after the marathon that he has already performed today. I agree with the criticisms of the procedures made by the noble Lord, Lord Boswell, although, unlike him, I have some wider reservations about the whole 35 measures that the Government propose to opt into.

The noble Lord, Lord Boswell, talked about the procedure in this House and in the Commons. Of course, a very important point in the other place was that a specific vote was promised on the issue of the arrest warrant. That is an extremely important point. In November 2013 the House of Commons European Security Committee concluded that the vote on opting back in,

“should ensure there is a genuine opportunity for the House to determine the measures the Government intends to rejoin. To consider the 35 measures as a ‘block opt-in’, subject to one motion, would be seriously to misconceive the individual significance of some of the measures … We ask the Government to reflect this by … tabling separate motions for each of the measures in which it wishes to opt back in”.

That was in paragraphs 571 to 574 of the report.

It was a great pity that there was not a specific debate on the arrest warrant as it was impossible for Members of the House of Commons to talk about individual cases as they affected individuals. When one Member of Parliament, Mr Wiggin, attempted to do that, to give an illustration of what this meant for one of his constituents, he was told by the Speaker that he could not go on describing that and that it was out of order.

My second important point is that the European Scrutiny Committee in the House of Commons concluded that the opt-out, combined with the Government’s proposals for opting back into certain laws, represented no significant repatriation of powers from the EU. Indeed, the Home Affairs Committee thought that it could result in a net flow of powers to the EU, given the introduction of full European Court of Justice jurisdiction. This is because of the relative impact of the laws the Government wish to back into, measured against the lesser importance of many of the other measures under the opt-out.

Another important question is whether we have legally binding agreements, treaties or co-operation. In their command paper of July 2013, the Government said that, in some cases, there was no need for legally binding agreements for practical co-operation to take place with other EU countries to tackle cross-border crime. In the case of some of the 35 EU laws which the Government propose to opt back into, the need for binding law is highly questionable. For example, do we really need to have supranational measures to deal with the exchange of information between member states to police international football matches? The Government also said that, where a binding agreement is needed, an alternative to opting back into EU legislation—which is irreversible and entails full ECJ jurisdiction—is a bilateral treaty between the UK and the EU as a whole. This could apply to extradition.

A fundamental problem with opting back into these EU laws with full ECJ jurisdiction was expressed by the Government in 2012 in response to the European Committee of this House. They stated:

“The practical effect of the ECJ gaining full jurisdiction in this area after the transitional period from 1 December 2014 is that the ECJ may interpret these measures expansively and beyond the scope originally intended. This concern is compounded by the fact that the ECJ has previously ruled in the area of Justice and Home Affairs in unexpected and unhelpful ways from a UK perspective”.

Those are not my words but the words of the Government, and we should take them extremely seriously.

Instead of opting back into the legislation, an alternative would be a new bilateral treaty on the matters in question. This would have the following advantages. The UK would negotiate as a sovereign state regarding the relevant matters. A UK-EU bilateral treaty would enable the UK to avoid coming under the jurisdiction of the ECJ; we could apply different rules and safeguards for British citizens. It would also allow us to withdraw from it if it began operating against the national interest; it would not be frozen in aspic for ever.

[Lord Hannay of Chiswick (CB)]

I am grateful to the noble Lord for giving way. He has quoted extensively from the committees in another place and from evidence given by Ministers but he has not seen fit to refer once to the two reports made to this House. Could he come on to those, because they answer every single point he has made?

[Lord Lamont of Lerwick]

The noble Lord can, I am sure, speak and answer my points. I have not yet finished my speech: I have quite a few more points to make. I know that the committee in this place went in a completely different direction from those in the House of Commons. I confess that I found those in the House of Commons more persuasive than the committee in this House. However, it is, as always, open to the noble Lord to speak and I am sure he will do so as persuasively and charmingly tonight as he always does.

Pursuing the point about a bilateral treaty between ourselves and the EU, there is a precedent for this. Denmark has its own opt-out on justice and home affairs and concluded three treaties with the EC prior to the Lisbon treaty. The point is often made that the three EU-Denmark treaties under the provision are subject to the ECJ. That is true, but it does not follow that a UK-EU agreement would have to be: it depends entirely on what we say. It depends what the Government negotiate. A UK-EU treaty could provide an alternative dispute mechanism as the EU has some treaties with various other countries. Of course, I accept that a treaty would take time, but the EU treaty—specifically Article 10(4) of the Protocol on Transitional Provisions—allows the Council on a proposal from the Commission to agree to transitional arrangements in the light of the opt-out. The UK could ask for the relevant pieces of the EU legislation, such as the arrest warrant, to continue to apply for a period of time that allowed for the conclusion of a replacement bilateral treaty. That would not entail opting back in—which is, as I say, irreversible.

European Union (Referendum) Bill

Debate between Lord Hannay of Chiswick and Lord Lamont of Lerwick

Friday 31st January 2014 Lords Chamber

[Lord Hannay of Chiswick]

My Lords, I support the amendment in the name of the noble Lord, Lord Turnbull, and many of the arguments which have already been deployed in support of it. However, in connection with the intervention by the noble Lord, Lord Lamont, of course it would have been possible to put forward an amendment which would require the Government now to say what they would do in the context of a no vote in the referendum—but that is not what the noble Lord, Lord Turnbull, is suggesting. He is suggesting merely that the Government of the day should be required to provide this information to the electorate ahead of the referendum, which seems to me a totally reasonable thing to do.

It does not involve holding up the Bill or preventing a Bill that provides the basis for an eventual “in or out” referendum going on to the statute book. However, it does say that, before such a referendum can be held, the electorate must be aware of what the choice they are making implies, because a referendum vote is a very stark choice between one option and another. The other option, which would be to leave the European Union, would have very serious consequences. Is it not totally reasonable to require that those consequences are brought to the attention of the electorate before they are asked to vote? If that logic is correct, I very much hope that the noble Lord, Lord Dobbs, will—

[Lord Lamont of Lerwick]

I entirely agree with the noble Lord, and with the point that has been made widely, that all the information on both sides should be put forward in a referendum, but I do not see why that should be in this Bill, which is about the mechanism of a referendum. I remind the noble Lord that the Prime Minister said that he himself favours continued membership of the EU. If the Prime Minister recommends continued membership of the EU, is it conceivable that he will not spell out the advantages of being a member of the EU before a referendum is held? He is bound to do that.

[Lord Hannay of Chiswick]

I am sure the noble Lord is right, but the extent to which the Prime Minister carries his party with him seems to be in a little more doubt today than it was a few days ago. As I say, I am sure that the noble Lord is correct, but the amendment would require the Government of the day—that Government may well not be the present Prime Minister’s Government—to provide, at the time a referendum is held, and in advance of it, certain kinds of information that are not called for in the Bill as it stands. I happen to think that this falls fairly and squarely in what I would call in the argot the “Cormack category”—that is, a provision that will improve the Bill. I hope very much that the noble Lord, Lord Dobbs, will accept the amendment. I do not think that there is any ambiguity in it at all. Therefore, I hope very much that it will be endorsed.