Brexit: Green Paper

Debate between Lord Spicer and Lord Pearson of Rannoch

Monday 9th January 2017 Lords Chamber

[Lord Pearson of Rannoch (UKIP)]

My Lords—

[Lord Spicer (Con)]

How is one more clear about the objectives than the Prime Minister was yesterday, which is to get out of the European Union as soon as possible, which includes the single market?

EU: Personal Data

Debate between Lord Spicer and Lord Pearson of Rannoch

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.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Debate between Lord Spicer and Lord Pearson of Rannoch

Wednesday 15th June 2011 Lords Chamber

[Lord Spicer]

My Lords—

[Lord Pearson of Rannoch]

My Lords—

[Lord Pearson of Rannoch]

My Lords, I think the noble Lord, Lord Spicer, and I have something to say.

[Lord Spicer]

My Lords, I had not meant to say anything at all until I heard some of the arguments. It seems that the 1972 Act is not totally invulnerable. Factortame was a nasty scare. Therefore, the last thing that we want to do at this stage is to throw further doubt on the 1972 Act by talking about “an Act” rather than the 1972 Act.

[Lord Pearson of Rannoch]

My Lords, I have two questions for the Minister that I asked in Committee but to which I did not get an answer. First, will he confirm that the noble Lord, Lord Kerr of Kinlochard, is 100 per cent right when he says that when the happy day comes—he did not put it like that—when the 1972 Act is repealed by the House of Commons and your Lordships’ House, it will then be definite that we are out of the European Union?

However, the question is not quite as simple as that. In January 1997, your Lordships were good enough to give Second Reading to a Bill in my name that did exactly that—it repealed the 1972 Act. At the time I was advised by the Clerks that this would still leave us with a problem from the Eurosceptic point of view, which wants nothing to do with any European legislation whatever. That problem would be that all the EU law that had been sewn into domestic law since 1972 would remain valid in British law. At the time, the Clerks advised me that one is not allowed to introduce a Bill into your Lordships’ House that is not capable of practical fulfilment. Their advice at the time was that it would have taken 12 parliamentary draftsmen some three months to identify all EU law sewn into domestic law, which could then have been repealed at our leisure. I am glad to say that they even suggested having a massive Henry VIII clause at the end of the procedure. Therefore, my first question to the Minister is: would it really still be the case that EU law remained in British law? There is far too much of it; nowadays the majority of our national law is passed in a wholly undemocratic process in Brussels to the exclusion of Parliament in this country.

My second question to the Minister was, and is, as follows. When, as I say, the joyous day comes that the 1972 Act is repealed, that surely means that the Lisbon treaty falls in its entirety, because the Lisbon treaty is only an amendment to several other amendments to the 1972 Act. When that happens, is this country still obliged to follow the provisions of the Lisbon treaty which govern how a country leaves the European Union? That is a process, I think—I may be wrong—under Article 50 of the Lisbon treaty, which takes two years and puts the Council in charge of the process and, indeed, the cost of the country leaving the European Union. When we repeal the 1972 Act, does that provision fall as well? Are we then, as the noble Lord, Lord Kerr, said, free of the whole wretched thing, or are we still bound by Lisbon? What about the domestic law which is sewn into our law? Surely that remains binding until repealed by Parliament.