EU Referendum and EU Reform (EUC Report)

Lord Spicer Excerpts

Wednesday 15th June 2016 Lords Chamber

[Lord Boswell of Aynho]

My Lords, provisions in the Vienna convention on treaties would enable a member state to withdraw from any international obligation by consent of the parties involved. As the noble Lord rightly said, the Lisbon treaty followed long after the 1975 referendum, in which we probably both participated. In order to be consistent with European and international law—which, of course, are obligations for Ministers as well—the treaty confines any action to the terms of Article 50, under which it would have to be carried out. I hope that that is helpful to the House.

Notwithstanding this legal argument, which I have some diffidence in opining, it has not escaped us that there would of course be political consequences on both sides of the argument in doing so. On the practicalities, the process of negotiating withdrawal would be complex, involving, among others, vital issues of trade policy and complex issues of rights acquired by individuals, as well as the need to review our existing body of law. It can be done, but it will take time—probably several years—to complete.

[Lord Spicer (Con)]

On Article 50, surely force majeure will come into play. Is it realistic to suggest that a nation state could be forbidden from leaving the European Union if it wished to do so?

[Lord Boswell of Aynho]

My Lords, the question is not whether a nation state would be inhibited from doing so, because the Lisbon treaty specifically empowers and provides a process for it. The question for the noble Lord and this House as a House of law and proper procedure is how we may meet our international obligations if the nation decides to initiate that process—no more, no less.

I am conscious—although it is beginning to seem that the note I had marked may be a little obsolete in the circumstances—that I have yet to address the more overtly “political” issues which loom large in all our minds as we approach the referendum. Reverting to our report on EU reform, perhaps the key question is: what happened to the new settlement? A little like the dog that did not bark in the night, its almost complete absence from the current debate on EU membership is telling. This was the agreement on which, we were told, the Government’s support for EU membership depended, yet it has had almost no influence at all on the referendum campaign.

This takes us back to our starting point: the Government’s failure initially to provide an overarching assessment of the findings of the balance of competences review; the failure to offer a considered, evidence-based diagnosis of what, if anything, is wrong with the EU; and what the real costs and benefits are to the UK, so that we can understand what needs to be fixed for the UK to remain a member. If the British people need anything over the next eight days, it is real, objective evidence, on the basis of which they can make an informed decision.

This brings me to my final point. As a committee, we have tried our best to fulfil our duty in tackling complex technical issues around the process leading to the referendum, and we have done that in our traditionally non-partisan style. Yet we also stressed that the Government’s case for EU membership needed to be an inclusive one, crossing party-political lines and speaking to all the peoples of the United Kingdom. We suggested that it needed to be based on a positive vision of the UK’s role within a reformed EU, and we warned that a campaign based on narrow national economic self-interest, alongside mere fear of the alternatives to membership, might be insufficient. Noble Lords may wish to reflect on whether our plea has been listened to, or whether our warning has become a reality.

The decision in eight days’ time will be as much of the heart as of the head. If the Government are to persuade the people to endorse their recommendation to remain in the EU, they need to focus on facts, but also appeal to the feelings and ideals of the voting public. It is not too late, but in that somewhat sober context, I beg to move.

European Union Referendum (Date of Referendum etc.) Regulations 2016

Lord Spicer Excerpts

Wednesday 2nd March 2016 Lords Chamber

[Lord Spicer (Con)]

I shall be very brief, not because I cannot think of anything to say, but because others have said most of it before me. I want to begin by asking what is likely to determine the outcome of the referendum. I do not think it will be the mechanical efficiency of the campaigns and so on; it will be the self-churning groundswell of public mood. I sense that that groundswell is beginning to work towards coming out of the EU because people are increasingly weary of the bossiness of a distant Government over the choice of which they, the people, had little say.

I realise that Britain joined the common market for economic reasons and was prepared to pay a political price for that. For Germany it was the other way round; it joined for political reasons and was prepared to pay an economic price. One accepts that the problem arises for quite the opposite reason from that which people have been saying in this debate. It is clear that the economic case is on a sharp decline. Britain is in there, but we are in a rather sluggish market, rather a miserable market in many ways. Above all, we are a member of an institution that cannot even negotiate modern trade agreements. That is rather like not being able to organise a party in a brewery.

It is quite incredible that we do not yet have a modern trading treaty with Japan, the United States or China. In my view, that can be explained by the fact that we are dealing through a protectionist organisation. If we had done it ourselves, contrary to what the noble Lord, Lord Ashdown, said, and we had negotiated directly as a country, we would have achieved modern trading agreements with those areas. That is because we believe in free trade; we invented free trade. The EU is a protectionist organisation. It does not believe in free trade so it is constantly on the back foot when it is negotiating.

It has been said today that Britain could not negotiate its own treaties. That is the exact reverse of the truth. I am approached sometimes as the person who was the pain in the neck during the passage of the Maastricht Bill and asked whether I was wasting my time and, more important, everyone else’s time. I think that we held the forth, kept the door open for progress towards this referendum. It will now be up to the people to decide. I know which way I will vote; it is fairly obvious which way I will vote. That is democracy, and that is the really good thing about what we are discussing.

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[Lord Faulks]

I am grateful to the noble Lord. He is quite right. Those are substantial precedents and a clear indication of what might happen—as he quite rightly said, in invoking the Latin maxim pacta sunt servanda.

[Lord Spicer]

Can my noble friend think of an example where the European Court has intervened and where it has not done so in favour of an integrationist centralist Europe, according to the acquis communautaire?

[Lord Faulks]

With great respect to my noble friend, I am not sure that going over the entire jurisprudence of the European court would help, either at this time of night or at all, in terms of answering this fundamental question. We, the Government, submit that the answer is clear: this is a binding agreement.

May I also advance the argument that we are better off in the EU? The Government believe that the UK will be better off. The Government’s long-term economic plan is delivering economic security for families and businesses, underpinned by sound public finances. We plan to do this by investing in the UK’s future, addressing the productivity challenge and rebalancing the economy towards trade and investment. With turbulence in the global economy, membership of the EU supports this plan by giving British business access to the free-trade single market, and dozens of trade deals across the world.

Through our EU membership, we already have trading agreements with more than 50 countries. Concluding all the trade deals currently under way could ultimately be worth more than £20 billion a year to the United Kingdom GDP. Once these deals are completed, around three-quarters of UK exports to non-EU countries would be covered by an EU-negotiated free-trade agreement. Of course, we could make other deals—whether we could make them on better terms must be seriously in doubt. This Government’s deal keeps the EU moving firmly in the right direction and hard-wires competitiveness.

Would we be safer in the EU? The Government believe that we would. Our EU membership allows the UK to work closely with other countries to fight cross-border crime and terrorism, giving us strength in numbers in a dangerous world. Our new settlement reiterates that the responsibility for national security rests solely with national Governments and that EU institutions will fully respect the national security interests of member states.

The Government believe that the UK will be stronger in the EU because we can play a leading role in one of the world’s largest organisations from within, helping to make the big decisions that affect us. Membership of the EU, like our membership of NATO and the UN, amplifies the UK’s power and influence on the world stage. At a time when we are, as many noble Lords have pointed out, faced with an increasing range of serious threats, co-operation at an international level is more important than ever.

This is a significant package of measures, delivering changes that are substantial, legally binding and irreversible in the sense that they can be changed only if all 28 member states agree. Of course it will not solve all the problems with the EU. In that sense, it should be seen as an important step on the road to EU reform —a point made by my noble friend Lord Howell, in his thoughtful speech—rather than the destination.

As to leaving the EU, noble Lords will be aware of the discussion elsewhere about a vote to leave being a means of securing further concessions in the renegotiation process, ahead of a second vote. That appears to have been briefly the view of the Mayor of London and is still the view of Mr Dominic Cummings.

The noble Baroness, Lady Morgan of Ely, asked if there was any contingency planning for Brexit. The Civil Service is working full-time to support the Government’s position, and the Government’s view is that the UK will be stronger, safer and better off remaining in a reformed EU. I want to be very clear on behalf of the Government: a vote to leave is exactly that—a vote to leave. The Government cannot ignore the democratic decision that will be made on 23 June; there is no option on the ballot paper to have a second renegotiation or to hold a second referendum. The Prime Minister has been explicit that a vote to leave would trigger Article 50 of the treaty. It would begin the process of a British exit from the EU.

European Union Referendum Bill

Lord Spicer Excerpts

Wednesday 18th November 2015 Lords Chamber

[Baroness Morgan of Ely]

What a great relief—no need for me to use my maths.

We have to understand that this is not a static process but a rolling register. Let us not forget also that the timetable for the referendum was not one of our making. During the discussion on the Private Member’s Bill, we warned the Government of the difficulties of holding a referendum in 2017 due to French and German elections and the UK presidency. It is the Government who have backed themselves into a corner and are trapped in a very narrow window for when they can realistically hold a referendum. That is a situation that we did not create.

We believe that the Prime Minister would like to go for an early referendum vote, but he cannot put the referendum wheels in motion until he has finished the negotiation on UK membership, and that has only just started. It is clear that member states will be distracted by the rather more urgent task of keeping their citizens safe. So the probability of us coming to any agreement in December is, I suggest, extremely thin.

We know that the Government have agreed to a four-month minimum period from setting the date in regulations to the vote. Therefore, if the electoral registration officials could get started as soon as Royal Assent were granted, that would allow them plenty of time to get ready for September.

It is also worth drawing the attention of the House to the fact that noble Lords have previously supported a similar amendment on reducing the voting age to 16 in the context of the local government Bill before the summer. The principle of changing the franchise for the European referendum from the Westminster franchise has already been breached. The Government have allowed Peers, residents of Gibraltar and Commonwealth citizens of Gibraltar to have the right to vote.

I urge the Minister to take note of the strength of feeling on this issue, not just in this House but in the country more generally. I respectfully suggest that it is time to allow these young people—

[Lord Spicer (Con)]

I do not quite see why the noble Baroness stops at age 16. What is wrong with including those who are 14 and 13? There is a very real question as to why she defines the limit at that point.

[Baroness Morgan of Ely]

I will tell the noble Lord why we should start at 16: civic education finishes at the age of 16. By the age of 16, young people have been equipped to deal with these measures; that education has not finished by the time that they are 14 or 15. There are also several examples of them taking responsible decisions at that age, such as being able to get married, choosing their vocation and choosing their A-levels. Those are responsibilities that they take seriously, and that is why we would introduce it at 16 and not at a younger age.

European Union Referendum Bill

Lord Spicer Excerpts

Monday 2nd November 2015 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I support this group of amendments. Amendments 17 and 19, which are mine, are of a similar thrust to that of noble Baroness, Lady Miller, whose amendment has been clearly and compellingly introduced.

When the Minister replies, I hope he will recognise that we are in calmer waters than we were last Wednesday in discussing the franchise. There is no difference of principle between those moving these amendments and the party of which he is a member, which stated in its manifesto that it believed that this category of person—people who have lived abroad for more than 15 years—should get the vote. I heartily support this view.

I hope that the Minister will also recognise that this class of voter—as I hope it will be—in the European Union countries has a greater interest in voting in this referendum than he or she ever had, or will have, in national parliamentary elections. It would be extraordinary if the Government did not exert themselves to ensure that these British citizens have the vote on this occasion, when their own rights and livelihoods are at stake. The Government have made a great deal of the saying, “the people must have their say”. Surely these are people who ought to have their say. They and their futures are directly involved in this. Frankly, it would be appalling if the Government, later in this Parliament, in an act of supreme generosity, gave them the vote—but after the referendum in which they wish to vote. I hope the Minister will give serious consideration to this issue.

[Lord Spicer (Con)]

When the noble Lord said that all UK citizens living abroad should get these rights, did he mean “abroad”? The first amendment in this group refers just to Europe. If he meant “abroad”, that is very interesting.

[Lord Hannay of Chiswick]

Naturally, since I rose to speak to some amendments on the Marshalled List, those are the amendments I am speaking to. If I did not repeat on each occasion, “Those citizens living abroad in other EU countries”, then I am sorry but that is what I intended.

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[Lord Green of Deddington]

The reason why the numbers matter is that if we get a close vote, as is possible, and if we are discussing here matters that involve potentially significant numbers, we will need to understand how that would be perceived afterwards.

[Lord Spicer]

It is notable that pretty well every speaker has spoken in support of what the noble Lord, Lord Flight, said. It was the reason why I intervened on the noble Lord, Lord Hannay, when I asked him whether he really meant “abroad”—because if he had, it would have been a very significant thing. However, we are where we are. I hope the Government—

[Lord Hannay of Chiswick]

I am sorry; I think the noble Lord has misunderstood yet again what I said. In my opening remarks I said that I welcomed and supported what was in the Conservative manifesto. When it is brought before this House, I will vote in favour of it. I am in favour of the vote being given to all British citizens who live abroad, irrespective of where they live. However, in the context of this Bill, which is about an EU referendum, I have advanced an amendment which is designed to give people who have a serious interest in that referendum the vote. But there should be no mistaking it: I am not distinguishing between the two except in the context of this Bill. I shall be there to vote with the noble Lord when the Representation of the People Act comes forward.

[Lord Spicer]

I very much understand why the noble Lord makes a distinction, because—I will say it again—the amendment that he has produced in its form will hope to skew the results. One point made in this short debate is that the reason for having this rather skewed amendment is that people who live in the European Union like living there. Well, fine, but it gives a perspective on the answer that they might give in a referendum. I have no doubt that the noble Lord has that in his mind. I therefore say to the Government, who are meant to be neutral in all this, that in the interests of fairness and neutrality, and if they are going to extend the franchise, they should listen to the arguments for doing so on a worldwide basis.

[Viscount Trenchard (Con)]

My Lords, I, too, wholly agree with what my noble friend Lord Flight said—that if we are going to extend the vote in the referendum to those United Kingdom citizens who live outside the United Kingdom, it should be extended to all of them. However, I do not feel that those who live outside the United Kingdom have quite an equivalent right to vote as those who live here. As democracy was being extended in this country, it was often said, “No taxation without representation”. I seem to remember that when I went to live and work in Japan, I stopped paying United Kingdom income tax fairly immediately, although I did have to pay Japanese income tax, which was at rather a higher rate.

I later became chairman of Conservatives Abroad in Japan, and asked for the franchise for those of us who were abroad for a relatively short time with the clear intention of coming back. If you have been abroad for a long time and made your life abroad and have no intention of coming back to the UK to live, your right to have your voice heard in a general election or referendum is somewhat less. There may well be a case for extending the franchise beyond 15 years to United Kingdom citizens abroad, but there are practical difficulties in tracing who they are. On which electoral register would they be if they no longer have any family members living in the area where they previously lived? It seems rather complicated, so I cannot support the amendments.

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[Lord Spicer]

Can I ask one question about what is in the noble Lord’s amendment? In Amendment 21, subsection (2)(e) of the proposed new clause refers to comparing what the effect will be on jurisprudence, criminal law and so on. How dynamic will be the base from which this assessment will be made? It is always argued, for instance, that we will never have a totally Europe-wide criminal law but we all know that that is the direction we are going in. What is the baseline from which this assessment will be made?

[Lord Hannay of Chiswick]

I think that the noble Lord is referring to the last paragraph of the subsection, which is on law enforcement. The situation there is fairly easy to follow. The present situation is that we have opted back into, I think, 36 justice and home affairs measures—no, it was fewer than that. It is Protocol 36 but the number is somewhere in the 30s, and those measures are the ones that apply in this country now. The ones that we did not opt back into do not apply and would therefore not be affected by a decision to withdraw. The ones that we did opt back into and which do apply in this country would be affected by a decision to withdraw. They include things such as the European arrest warrant.

If I may skip on to this part of the amendment, the implications for law enforcement, security and justice and, above all, for the European arrest warrant are extraordinarily serious. We discovered at the time of the Protocol 36 discussions, which were pretty intensive in this House, in the other place and in the public press, that the consequences for law and order on the island of Ireland could be extremely serious if the European arrest warrant did not exist. It has in fact managed, for practically the first time in recorded history, to depoliticise the issue of extradition between the two parts of the island of Ireland. It is now possible to get back criminals, including terrorists, who are wanted for trial in Northern Ireland from the south without a highly politicised process, and very expeditiously. That would be lost if the European arrest warrant ceased to apply in this country and, I suggest, that would have pretty serious implications for the rule of law in Northern Ireland.

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[Lord Blencathra]

My Lords, that is the one safeguard we may have: the French will always want to retain their seat on the Security Council. I think that we can detect that the day the French wish to give that up, we can rest assured that the whole EU foreign policy will be dictated by the Élysée Palace. I also say to the noble Lord, Lord Kerr, that it is no more speculative to ask the Government to report on what is in my amendment than it is to ask them to report on, as subsection (2)(c) of the proposed new clause states,

“the rights, following withdrawal, of United Kingdom citizens living in another country”.

We have no idea what those rights may be. I do not think there is any EU law at the moment that says that the moment Britain or any other country withdraws, citizens living in that country will be immediately expelled or that conditions X, Y or Z would apply. It would be negotiated.

[Lord Spicer]

Is the answer to the intervention on my noble friend’s speech not that the factual evidence of things moving one way is the embedding in the treaty of the acquis communautaire, which insists legally that we move in one direction?

[Lord Blencathra]

I agree entirely with my noble friend. And it is one thing for a treaty to say something, but we know how the European Court interprets treaties—towards ever-closer union. I give way to the noble Lord, Lord Kerr.

European Union Referendum Bill

Lord Spicer Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Liddle]

I am saying that those who argue that they will support continued membership of the EU only if there is fundamental treaty change hold a hypocritical position because that is not possible to achieve within the timescale that the Government have set out.

The Government should follow Harold Wilson’s example—

[Lord Spicer (Con)]

Given the scenario that the noble Lord has described, why do we not smoke them out and find out a bit quicker, rather than leave it until 2019?

[Lord Liddle]

Because there might be fundamental treaty change—for instance, within the eurozone—by that date. There is no possibility of that within the date of the renegotiation. This means that the Government have to be honest about what they can achieve and what they cannot; they have to adopt the position that Harold Wilson wisely adopted in 1975 and say, “We did want to achieve quite a lot of things in this renegotiation. We haven’t achieved them all, but we have achieved some useful reforms which in our view justify staying in”. I think that that is the best that the Government can do on their own policy. That is why I have tabled the amendment.

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[Lord Forsyth of Drumlean]

Yes, indeed, and it has only just dawned on me that, just before the Single European Act came before the House of Commons, I was made a Parliamentary Private Secretary to our late friend Geoffrey Howe, who was Foreign Secretary. Does the noble Lord think there might have been a coincidence perhaps? As a member of the payroll vote, I was expected to vote for it, and I did vote for it. Indeed, the late Lady Thatcher supported it, but I can tell noble Lords that if Lady Thatcher were here today she would be saying that we should leave the European Union. I have no doubt about that whatsoever.

[Lord Spicer]

My Lords—

[Lord Forsyth of Drumlean]

I would quite like to get on to the amendment, but I give way to my noble friend.

[Lord Spicer]

I have been reflecting on the exchange between my noble friend and the noble Lord, Lord Liddle, on the question of degrees of hypocrisy. I wonder whether it might be viewed as pretty hypocritical to push an amendment to delay the referendum for two years, hoping that it might go away in time for the general election.

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[Lord Spicer]

My Lords, we have heard that Amendment 2 is a tongue-in-cheek amendment. We have never had one of those before; it is, I think, without precedent. We have had wrecking amendments and probing amendments, but we have never had tongue-in-cheek amendments. Leaving that to one side, the amendment enables me to make one short but serious point.

The argument that has been made for getting on with things is clearly a strong one, because of the confidence factor and so on. We shall find out fairly quickly whether we can get the results we hope for in terms of change—certainly in terms of treaty change. For instance, on the question of repatriation of powers we shall fairly quickly come up against something called the acquis communautaire, which dominates, and is endemic to, the entire set of treaties. It requires all the movement to be one way; it does not allow any return of powers within the treaties. Given that unanimity would be required to change a treaty, we shall find out fairly quickly what the situation is. So any amendment, tongue-in-cheek or otherwise, that would cause further delays is a bad thing and should be voted against.

[Lord Stoddart of Swindon (Ind Lab)]

My Lords, Amendment 1 is perfectly acceptable, and I hope the Minister will accept it. However, I cannot understand why on earth Amendment 2 has been grouped with it. I am surprised that the noble Lord, Lord Liddle, did not insist that it be listed separately. He will be surprised to hear that, to some degree, I agree with what he said. 2017 will be a very difficult year.

Criminal Justice and Courts Bill

Lord Spicer Excerpts

Monday 27th October 2014 Lords Chamber

It is not therefore sensible to ask judges to make a decision other than the proper judicial decision about whether the law has been carried out. “Well”, say the Government, “we are not stopping that. All we are saying is that judges should not be in that position unless the issue is important enough for it to merit that position”. This is where I really disagree with the Government. It is perfectly possible for a person to have been misjudged, for an issue to have been decided not in accordance with the law and for the outcome to be the same as had the law been carried through, but for it still to be an important part of freedom to ensure that the law is upheld. That is the issue of considerable importance.

[Lord Spicer (Con)]

I am most grateful to my noble friend for giving way. He is making the distinction, in a brilliant speech, between judges making the law and interpreting the law, but is that not precisely what the European Court does: it makes the law, which is then interpreted back?

British Bill of Rights

Lord Spicer Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Woolf]

My Lords, I too warmly congratulate the noble Lord, Lord Lester, on his wisdom in selecting this subject for debate. I also acknowledge the contribution he has made to the development of human rights principles in this jurisdiction. He has been indefatigable in his efforts. He is part of the explanation for why we are in a situation today where the human rights principles that we have developed in this country are working reasonably satisfactorily, although there are undoubtedly problems.

It is a testimony to the noble Lord’s efforts that I can remember well the time when, appearing as an advocate and not in his role today, he educated the judiciary of this country as to the approach to human rights, which was not in accord with the way we traditionally used to approach legislation in particular. This was true of his advocacy in the highest court in the land, which, of course, at that time was part of this House.

I congratulate the commission on the report it has produced. It has been the subject of criticism by some but I venture to say that that criticism was not meant to detract from the fact that the commission is exemplary in the way it has conducted the process of consultation. It is also exemplary in the way that it has clearly explained the different opinions that its members hold and the way in which the issues are regarded by different parts of the community.

I have found it very difficult to decide whether I should agree with the majority opinion or the minority opinion and I am glad to say that today’s excellent debate has helped me in that matter. The report sets out the arguments against and in favour very clearly, but to hear them debated in the House in this way brings a new realism to me which I did not have before.

I see a situation where, excellent though the commission’s work is, there are serious dangers in approaching the matter in the way the majority have indicated in the report. That does not mean that the work of the report has been wasted. On the contrary, it is very important that the position of human rights is elevated into proper public debate. In saying that, I am not referring to some of the debate that takes place in the media for understandable reasons.

It is important, however, that the thinking public have an opportunity to see where the truth lies. I am not surprised that the attempts, when they are made, to assess the public’s opinion show that the position is rather different than a reading of the media, popular or otherwise, might lead you to believe. As often happens, the public are not so foolish as to think that a new Bill of Rights could achieve a position where we could disregard the European Convention on Human Rights, to which this country has adhered as far back as 1950.

It is important to understand that human rights are different from rights set out in ordinary legislation. They are fundamental to the way of life of this country—indeed, I would go so far as to say of all countries that purport to or do adhere to the rule of law. What is special about the rule of law is that when it talks of that subject it is, in my understanding, talking about those rules which should govern societies in general. The way they are applied and interpreted in different jurisdictions does not mean that they are better observed in one jurisdiction than another or less observed in one country than another. The rule of law requires that a society adheres to basic principles—principles which are the source of the European convention and many other conventions. They are the source of justice, the source of fairness, the source of proportionality and the source of many other matters that make our society one that up to now has been respected in many parts of the globe.

I have had the good fortune to be called upon to make two reports in regard to the European Court of Human Rights and can say I am fairly familiar with the standards it has adopted. This country, together with the Council of Europe, invited me to make a report when I ceased to be Lord Chief Justice, one of the first activities I had at that stage. In the course of it I interviewed individually most of the judges on that court, looked at various procedures and was well aware of the huge backlog of cases that they had. I found that the more I talked to those judges, the more impressed I became. I was convinced that they were concerned about the same things with regard to justice that I would expect a British or United Kingdom judge to be concerned about. Within the confines of a system they were called upon to administer, they did their very best to achieve the results which they were required to achieve in order to honour the principles set out in the European convention. Of course some of the decisions would be popular and some unpopular. I am afraid that that is true of a judge’s job. It has certainly been true of my period as a judge, when some of the decisions I made were extremely unpopular.

[Lord Spicer]

The noble and learned Lord is talking about basic principles. Does he have on or off his list retrospection as practised by the legal profession during the expenses affair in the Commons?

[Lord Woolf]

I am afraid I find it difficult to fit that in with what I am going to say as it is not on my agenda this afternoon. I hope the noble Lord will forgive me if I do not try to deal with that although I can see why he raises the matter. The issue of those expenses and the way they were dealt with—the principles of general fairness, honesty and integrity—are the sort of matters which human rights can reflect.

Taking up where I left off, the recommendations which I made on that first occasion were adopted by the European Court which did its best to do what it could with them. The second commission—and bearing in mind that I was on it, it was probably misappropriately described as the commission of the wise men—consisted of 10 people from different jurisdictions. I mention it to declare an interest, but more importantly to point out that although those 10 members were drawn from different nations, they all struggled to work together to produce results that would be beneficial to the court. They could not complete their task in so far as they were not in a position to provide an answer to all the problems. Those problems remain although they have been helped by what happened in Brighton recently and the declaration made there. The important point is that, despite the load of problems that the court has, the situation is better today than it has been for a long time.

I listened with great care to what the noble Lord, Lord Faulks, said about cost. I wish to mention two things. The judges to whom I talked in that court were at one in saying that the very best advocates who came before it were drawn from the United Kingdom legal profession. They were unstinting in their praise of our advocates who they said were so good at understanding the real core of human rights. However, they added that the cost of those advocates was totally disproportionate when compared with that of advocates drawn from other jurisdictions. Indeed, our advocates, of whom we are proud, are 10 times more expensive. Therefore, we need to be rather sensitive about criticising other countries’ costs.

We also have to be cautious about criticising the costs of the European Court, which deals with cases very economically. It is the quantity of cases that generates the costs. I have not done it but if you were to work out the cost of a case before a court here and the court in Strasbourg, I am afraid that it would reflect adversely on this jurisdiction. That is why we are introducing new methods of tackling costs in this jurisdiction because, unfortunately, our costs are so large. Therefore, I do not see that we can justify criticising the European Court on the ground of cost.

I apologise but I want to say one or two words more. If your Lordships will bear with me, I will deal with them as quickly as I can. My belief is that we must work towards obtaining the public’s confidence. The only argument in favour of a British Bill of Rights is that it would improve the public’s confidence in this area. If we do not succeed in doing that, the future of human rights in this country will be at risk. It is at risk at the moment and we must do everything which is practical and possible to ensure that the British public take possession of human rights and regard them as singling this country out as being pre-eminent on issues of fairness and justice. If they recognise that this is a relevant issue, this country has hope for the future. If they do not, this country is very much at risk of relinquishing its legal excellence.

EU: Personal Data

Lord Spicer Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Pearson of Rannoch]

My Lords, I am grateful to the noble Lord, Lord McNally, for his apology to the Select Committee and to the House for the way that this draft directive has been handled but it might still be helpful if I put on the record the story so far. I trust it will be in order if I start by addressing the second or procedural part of my Motion and then deal with the draft directive itself and the question of our opt-outs.

Noble Lords will be aware that, under the European treaties, the British Government have a block opt-out in the field of justice and home affairs. Until the end of May 2014, the Government can opt out of all EU legislation affecting police and judicial co-operation in criminal matters. They have to opt out of all of it but would then be free to opt back in to any individual directives, et cetera, by which they wished us to be bound. However, if in the mean time they had agreed to amend any of them or had said that they will not opt out, they lose their right to opt out in those cases and will have opted in to them.

[Lord Spicer]

I am most grateful to the noble Lord for giving way. I wish that I could call him my noble friend because he is a close friend. I wish that he was still in the Conservative Party and hope that he comes back soon. Is he aware that, to my recollection at least, three Prime Ministers in the past 10 years have given a firm assurance that we would not tangle with corpus juris, which is one way of defining the European criminal legal system? As I am sure he is going on to say, is the true context in which this matter should be discussed not on a narrow issue of data protection?

[Lord Pearson of Rannoch]

My Lords, I agree with my noble friend, if I may refer to him as such. Of course, corpus juris is just one of the many important examples of how the octopus in Brussels slowly puts its tentacles around our sovereignty and democracy. I remember it first being raised at an academic conference, I think in Spain, in about 1990 and someone who was there got very excited about it and said that this corpus juris—the Roman words for the body of Roman law—was going to come into the EU and that we were going to do it. We were of course told by the then Conservative Government that that was complete nonsense and that it was only an academic idea. We went through all the usual stages of the advance of the octopus. Then we were told that it was in fact a sort of proposal but that no one else agreed with it: “Don’t worry, the British Government are going to see this one off”. Then of course we move further on and what we are looking at is certainly an example of the advance towards corpus juris.

The Government have promised that any decisions to opt in to any of this legislation will be debated and subject to a vote in both Houses of Parliament. A deadline for the Government’s opt-out on this draft directive had been set for 14 May this year. As the noble Lord, Lord McNally, mentioned, the House of Commons debated and voted on it on 24 April, with the Minister confirming that the Government were thus fulfilling their promise to Parliament—that we should debate and vote on each of these opt-ins. Yet even in the Commons there was considerable dissatisfaction with the way that the Government handled the matter. The Motion was tabled on the day of the debate, without the Commons EU Select Committee being given an opportunity of scrutiny. The chairman of that committee, Mr Bill Cash, described it as a “disgrace” and the whole debate is a powerful indictment of the directive and of the Government's behaviour. I recommend the debate to your Lordships.

However, when we come to your Lordships’ House the Government’s behaviour is, alas, even less excusable. The Government were aware of the deadline for their opt-out of 14 May many months ago. Indeed, the Home Secretary wrote on 21 December 2011 to the noble Lord, Lord Roper, who was then the chairman of our EU Select Committee, revealing the 133 measures that were still subject to our opt-out. I will come back to their substance later. I am not aware of what our Select Committee did then but I understand that the noble Lord, Lord Hannay, may be going to enlighten us. The Government failed to table their proposed Motion for debate here until 21 May, a week after the deadline for their opt-out on this measure, so that we were already signed up to the thing by the time we came to debate it—let alone to vote on it. The noble Lord, Lord McNally, mentioned Prorogation, but I remind him that we took a week’s extra holiday before that, and I cannot help feeling that this Motion could have been squeezed in.

Your Lordships might think it worse that the Government tabled their Motion in the Moses Room, where we cannot vote, so they broke their promise to give your Lordships a vote on this directive and pretended that we were not entitled to one by putting the Motion into the Moses Room.

The only thing one can say in favour of the Government’s Motion on 21 May is that it was slightly more honest than the one in front of us this evening. It asked your Lordships to take note of the Government’s decision not to exercise their right to opt out, which at least confirmed that they had already taken the decision not to opt out because the 14 May deadline had passed. Tonight, we are asked to approve the Government’s recommendation that they should not exercise their right to opt out. Will the Minister explain? Are the Government recommending for our approval that they opt in or will he confirm, as I think he has, that we have already opted in? If so, what is the point of the word “recommendation”?

I was so annoyed by the Government’s behaviour that I tabled a Motion of Regret in the Moses Room, on which I said I would vote, so the Government had to move their Motion to your Lordships’ main Chamber, which is why we are here now. I hope that at least I have raised the profile of our 2014 opt-out and the way the Government are handling it. There is widespread suspicion that the Government intend to opt in to the measures in question one by one, preferably when we are not looking too closely, so there will not be much left to opt out of in 2014. If this is wrong, will the noble Lord, Lord McNally, tell us this evening what the Government’s intentions are? It may help if I remind him that I asked him this as an Oral Question on 8 February 2011 at col. 121. He answered with, I have to say, unusual coyness that it was all very difficult and the Government had not made up their mind. Have they done so now? The noble Lord, Lord Henley, indicated at Oral Questions today that the Government are still in a muddle. Can the noble Lord elucidate?

I look forward to his reply because the Written Answer from the noble Lord, Lord Henley, on 28 May, col. WA 102, was less than helpful. I asked what measures were still subject to the UK’s opt-out, which we had already agreed, which the Government did not intend to opt in to and so what would be the position on 1 June 2014. The Minister replied that the list of all measures subject to the 2014 decision had been annexed. I referred earlier to the letter from the Home Secretary to the noble Lord, Lord Roper, on 21 December 2011 that the Minister said he would put in the Library of your Lordships’ House. The Written Answer also gave me a link to the letter and the enclosure. I suppose it is hardly worth mentioning that the letter and enclosure were not put in the Library and that the link did not work. However, the Library was good enough to extract the documents for me from the Home Office on Monday, so they are now in the Library of your Lordships’ House. They reveal that last December there were 133 measures that were subject to our opt-out. I say that the Minister’s Written Answer of 28 May was unhelpful because he concluded:

“Given that the Government cannot say with certainty what proposals the Commission will bring forward, it is not possible to say what the position will be in 2014”.—[Official Report, 28/5/12; col. WA 103.]

The Home Secretary listed all 133 measures as at 21 December last, and it was revealed on 28 May that we have already opted in to eight, including the one before us tonight. Why can the Government not tell us what they are doing about the remaining 102? Surely they must already know their position on them? Or are they telling us that Brussels has a whole lot more up its sleeve that have not yet been revealed, even reluctantly? For instance, the Home Secretary said in her letter of 21 December that the Government are aware that the Commission is planning proposals for next year involving revisions to Europol, CEPOL—the European police college—Eurojust, the framework for co-operation on confiscation of assets and criminal measures to tackle counterfeiting the euro, all of which are on the current list. The noble Lord, Lord Spicer, has a point; we are moving towards corpus juris. Is the Minister aware of any more?

I now move to the substance of the directive which we have already opted in to and related matters. A number of technical objections to it were raised in the Commons, which I will not waste time by repeating now. They include the Ministry of Justice’s impact assessment, which apparently found that the overall impact is likely to be substantially negative. I think the noble Lord, Lord McNally, has already commented that the Government will try to reduce its cost.

The Government’s Motion before us states that the data processing will be conducted by competent authorities. Can the Minister tell us exactly who these competent authorities will be? He will forgive me if I say that I am not aware of any authority in the European Union that is vaguely competent, but I look forward to the answer. The Government’s Motion refers to,

“the protection of the individuals with regard to the … free movement of”,

personal data. What does that mean? What is the present and anticipated state of the free movement of our data?

The noble Lord, Lord McNally, told us of the Government’s present position, but I cannot agree with the decision to opt in to this directive, if only for the fact that this and all our opt-ins remove yet more of the sovereignty of our Parliament and courts to the jurisdiction of the European Commission and the Luxembourg court. The Government’s action should have been obvious. They should already have exercised their block opt-out so they would now be free to opt in to any measures that they felt were useful, subject, of course, to a vote in both Houses. Interestingly, the Prime Minister agreed with this on 4 November 2009 when he said:

“We must be sure that the measures included in the Lisbon treaty will not bring creeping control over our criminal justice system by EU judges. We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law”.

The arrangement is right there, staring him in the face. He does not have to negotiate anything. He just has to use the opt-out that existed when he made that speech.

I have one other question for the Minister which comes from a debate in the Commons. Mr George Eustice told us that Denmark has opted in to some of these measures, but has managed to do so excluding the jurisdiction of the Luxembourg court. I do not know whether the Government feel like imitating that.

The sad fact is that the Prime Minister’s Government have already opted in to eight of the more significant measures according to their Written Answer on 28 May, as I have mentioned. They include the one before us and directives on the European investigation order, combating sexual abuse, the exploitation of children and child pornography, attacks on information systems and minimum standards for the rights, support and protection of victims of crime.

Whatever noble and Europhile Lords may say about the desirability of these initiatives and the need for action at a European level, those should not outweigh the protection of what is left of our national sovereignty. Where we want to collaborate with foreign Governments, we can do so. We do not need the incompetent and well known judicial activism of Brussels and Luxembourg to take over. Of course, we Eurosceptics know that we would be better off out of the whole thing anyway, but we object strongly to such initiatives as Europol, CEPOL, Eurojust, the European investigation order and, perhaps above all, the European arrest warrant. It is heartening that a growing majority of the British people agree with us.

I have one final question for the Minister. Will he tell us why the directive before us, the seven others that we have already opted into and the 125 that await their turn do not amount to a substantial transfer of sovereignty to the European Union and therefore trigger a referendum? I will be most interested in the noble Lord’s reply. I beg to move.