EU: Police and Criminal Justice Measures

Lord McNally Excerpts

Tuesday 23rd July 2013 Lords Chamber

Moved By

[Lord McNally]

That this House considers that the United Kingdom should opt out of all European Union police and criminal justice measures adopted before December 2009 and should seek to rejoin measures where it is in the national interest to do so; endorses the Government’s proposals in Cm 8671; and invites the European Union Committee to report to the House on the matter before the end of October, before the Government opens formal discussions with the Commission, Council and other Member States prior to the Government’s formal application to rejoin measures in accordance with Article 10(5) of Protocol 36 to the Treaty on the functioning of the European Union. 13th Report of the European Union Committee, Session 2012-13 (HL Paper 159).

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, today this House has the opportunity to debate and vote upon the Government’s proposal to: opt out of all pre-Lisbon police and criminal justice measures; invite various parliamentary committees to issue reports on the list of measures applicable; and then begin formal discussions with the European Commission and the other member states.

It would perhaps help our deliberations if I begin the debate by providing a little context. Between 1995 and 30 November 2009, some 130 measures in the field of police and criminal justice measures were adopted in Brussels under the so-called third pillar. These were not subject to either Commission enforcement powers or the full jurisdiction of the European Court of Justice. As a result, the Commission could not take action where it considered measures had not been properly implemented. There were no ECJ infringement rulings and unanimity was required to pass decisions in Council. The Lisbon treaty changed the constitutional structure of the European Union in police and criminal justice matters. A five-year transitional period was negotiated to delay these pre-Lisbon measures from becoming subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice. This transitional period applies to and will end for all member states on 1 December 2014.

However, the previous Labour Government negotiated a provision that applies only to the United Kingdom. Under the terms of the Lisbon treaty, the United Kingdom has until 31 May 2014 to decide whether to opt out of around 130 justice and home affairs measures covered by the treaty. If the UK so chooses, the opt-out will come into effect on 1 December 2014. An opt-out of individual measures may have been preferable—I believe that was what the previous Government initially tried to negotiate—but that is not an option. The opt-out can be exercised only en masse. Only after we have opted out can we seek to rejoin individual measures. That is subject to a negotiation with the European Commission and other member states.

Two weeks ago, I repeated in this House a Statement made by my right honourable friend the Home Secretary to announce the list of 35 measures that the Government will seek to rejoin—those being in the national interest to do so. Command Paper 8671 outlines this list of measures and includes the Government’s Explanatory Memoranda on the full set of measures. I want to make clear that the Government are strongly committed to the set of 35 measures in the Command Paper and to a successful negotiation of rejoining these measures.

I am aware of concerns about the difficulty of opting back into some of the more important measures. For example, it is clearly not in the interest of any parties to have operational gaps for those subject to a European arrest warrant or any of the other measures that we seek to opt back into. These matters will be discussed further with the Commission. It is our intention to try successfully to resolve any issues in that regard but, because there is much to consider and much at stake, the exercise of the opt-out must be preceded by careful and intelligent analysis of the 130 or so measures covered by this exercise.

The Government have approached the question of the measures we should seek to rejoin from the perspective that our citizens should not have fewer protections after 2014 than they have now. We have listened to the views of law enforcement and other agencies that operate on the front line to keep our country safe. The piece of work we have put before both Houses is the result of that careful analysis. We want to continue to co-operate with our European partners where there is value in doing so—where it is in the national interest to do so. That commitment is reflected in the 35 measures listed in the Command Paper that we ask the House to endorse today. As a package, they enable co-operation over invaluable practical measures to aid our police forces and criminal justice system. These measures are a crucial tool in the fight against international crime and terrorism.

However, other measures in the original 130 are not so useful: they may be obsolete, defunct or simply unused. That is why the Government’s thinking on this issue has focused on the practical use of measures and whether we consider them valuable in the fight against crime and terrorism. This is why, for example, the Government wish to seek to rejoin the European arrest warrant. With free movement through the European Union, we clearly need strong extradition arrangements in place to see that justice is done. The record shows that since 2009, the arrest warrant has been used to extradite from the United Kingdom 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspected child sex offenders, 27 suspected rapists and 44 suspected murderers were extradited back to Britain to face charges. A number of these suspects would probably have never been extradited back to Britain without the arrest warrant.

The arrest warrant has transformed the extradition process within the EU from one that typically took years to a system that now takes weeks. A perfect example of this is the extradition of Hussein Osman, one of the failed July 2005 bombers, from Italy to the UK in just eight weeks. This is in contrast to the era before the arrest warrant, when it took a decade to deport terrorist suspect Rachid Ramda to France. Such success would have been unthinkable in the absence of EU police co-operation. As noble Lords and others have said, the functioning of the arrest warrant can be improved. The Government recognise this and the Home Secretary has already announced a proposed list of changes in the other place.

Another measure that the Government have also expressed a wish to rejoin is the European supervision order. This will improve the functioning of the arrest warrant by allowing suspects, in the appropriate circumstances, to serve their bail conditions in their country of residence, rather than remaining locked up in a foreign jail awaiting trial. Furthermore, we want our law enforcement agencies to continue to be able to establish joint investigation teams in order that offenders can be brought to justice as effectively as possible. One example of this is Operation Fry. This saw a joint investigation team with the Netherlands target the abuse of free movement through sham marriages. To date, this has led to 122 arrests, with 77 convictions and sentences totalling more than 100 years, and allowed us to initiate action to remove non-EEA beneficiaries of such sham marriages from the UK. That sort of co-operation would be infinitely more difficult as part of bilateral arrangements rather than as part of a wider EU framework of agreements.

We also want to rejoin Eurojust and measures aimed at fighting child pornography and other crimes that occur across borders. These measures offer a crucial method of combating cross-border crime with other member states.

On another front, I am sure all noble Lords want to see as many foreign national offenders as possible removed from the UK. The prisoner transfer framework decision provides for non-consent-based transfers throughout the EU. The Government support both the principles underpinning this measure and the measure itself, as an effective means of getting those who have abused our hospitality out of Britain to serve their sentences back where they came from.

Then there are measures such as the Naples II convention and the customs information system, which allow us to co-operate and gain access to information from across Europe that makes a real difference on the ground, such as the seizure of 1.2 tonnes of cocaine with a street value of up to £300 million that came from information received under the convention. There is also the second generation of the Schengen information system, a new way of sharing law enforcement alerts throughout Europe, which has the capacity to bring significant savings to our criminal justice system, as well as making it easier to identify foreign criminals and terrorists. The Government have been very open about their wish to connect to this database, which requires us to rejoin the police and criminal justice parts of the Schengen convention itself.

These are but a selection of the instruments that the Government believe it is vital to opt back into. The Government have done a lot of work to prepare the Command Paper and it outlines our strong commitment to measures to facilitate cross-border law enforcement. The Minister for Europe committed to a debate and vote in both Houses of Parliament. Not only do we want a debate and vote, however, we also want consultation with the committees. In inviting the committees both in this House and in the other place to submit reports, the Government are ensuring that Parliament is fully involved in the decisions taken.

Although the Command Paper outlines the Government’s current thinking, we will not begin formal discussions with the Commission and member states until after Parliament has had the chance to express its views. That is why today’s Motion from the Government also invites the appropriate committees to contribute to an analysis of the measures. The committees in the other place were invited to do the same in last week’s debate. The result of this process will inform the Government’s formal negotiations with the European Commission and the other member states.

--- Later in debate ---

[Lord Maclennan of Rogart]

Before my noble friend sits down, will he give us a categorical assurance that the opt-out will not result in a referendum or referenda having to be held in respect of what the nation has to opt back into? It appears that the opt-out moves responsibility and competences back to this country, whereas the opt-in would move them to the European Union and it might fall foul of the Government’s own Act.

[Lord McNally]

My Lords, that is hypothetical and we could spend the rest of the night on it. I have made a very clear statement of government policy, and it does no service to the House at all for hypotheticals such as that to be thrown across.