EU: Police and Criminal Justice Measures

Viscount Eccles Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Viscount Eccles]

My Lords, I am a recently appointed member of Sub-Committee E. It has been an interesting baptism, dealing with the opt-out decision: all or nothing. From time to time it seemed that we were dealing with a booby trap on which was written, “I wonder how they’re going to get out of that”.

As the noble Lord, Lord Hannay, and my noble friend Lord Bowness said, we came to a clear, utilitarian answer to a rather complicated question. We made quite a long answer to that question, which was that the case was not convincing. As the Irishman said when he was asked for directions, “I wouldn’t start from here”. Perhaps it never was a utilitarian question; perhaps it was political; and perhaps we came up with the wrong answer.

I am a European. I am in favour of co-operation and against centralised control. I was lucky enough to be in Strasbourg in 1949 when there were 10 members of the Council of Europe and Winston Churchill made the keynote speech. One member of the 10 is not a member of the Community, but now, 64 years later, there are 47 members of the Council of Europe, and more than half of them are members of the European Union. Since the Commission and the Council are, as it were, the children of the Council of Europe, they should refer to the Beatles’ song, “When I’m Sixty-Four”, the last line of which is:

“Will you still need me, will you still feed me,

When I’m sixty-four?”.

From time to time, any institution needs a renewal of its mandate. Many people in this country and elsewhere are not sure why the Commission and the Council should have that renewal. Every now and again, a wild card is thrown on the table that makes people worry. The preamble to the Lisbon treaty refers to,

“ever-closer union among the peoples of Europe,”

and,

“a new stage in the process of European integration”.

I suggest that many people will not know what either of those aspirations means. As far as I know, nobody has ever given them a clear definition. Are we still intent on the avoidance of a third world war? I rather think that we no longer have the weapons with which to create it. Are we just a trading bloc? Will harmonisation of law across Europe one day end the defence of members’ legal systems? In short, what is the European project now? Is it intent on enhanced co-operation or centralised control? The public do not know the answer. It is a very complex question—not just this decision but the whole state of Europe—and it needs clearing up. The complexity and uncertainties must be exposed and discussed, and this Government are doing just that.

Tonight, the decision to opt out and opt back in is about co-operation and not central control. It is almost a housekeeping issue. However, the uncertainty about where it might lead means that many people do not see it that way. Therefore, the Government are entirely right to decide to opt out and opt back in to the 35. They will do that successfully, and that will restore public confidence in their ability to level with the European Union—not always a certainty in many people’s minds, and certainly not seen by many members of the public as being the case.

The relationship with the Commission and with the Council will be improved by our willingness to enter into long and serious negotiations. Therefore, it is entirely right to take this opportunity to renegotiate a system of international justice to the best advantage of ourselves and of other members of the European Union. I fully support the Motion.

--- Later in debate ---

[Lord Davies of Stamford]

Well, my Lords, that was the authentic voice of dogmatic anti-Europeanism and Euroscepticism. Clearly, the noble Lord very honestly believes what he said. He is totally entitled to say it and those of us on the other side of the argument can only take comfort from how weak, emotional and, in respect of his remarks about the Select Committee report, footling his arguments were.

I have been enormously struck, as I imagine the whole House has been, by three aspects of the Government’s nature and manner of doing business, which have been thrown into relief by this whole episode. The first is their extraordinary incompetence in evidently not getting any legal advice before they proceeded down this road. Nobody in the private sector would dream of going into a complicated negotiation of a totally new kind, with new risks attached to it, with important partners on an important matter, and not getting appropriate legal advice.

It was quite clear from the embarrassment and evasion of the noble Lord, Lord McNally, when he was asked the question by the noble Lord, Lord Maclennan, earlier that he did not have the faintest idea as to whether or not the procedure proposed by the Government risks triggering a referendum under the Government’s own European Union Act. I hope that the Minister will have thought about this and perhaps got some legal advice by the end of the debate, but the Government should have got a definitive opinion from the Attorney-General before they set off down this road in the first place.

[Viscount Eccles]

Perhaps it may be of some help to say that the Minister who is set to reply from the Front Bench was asked that question earlier today and was able to give a very definitive reply, in a meeting to which all the Members of this House were invited, if they wished to attend.

[Lord Davies of Stamford]

I am sure that the Minister is very grateful for the defence which the noble Viscount has just given him. No doubt at the end of proceedings the noble Lord, Lord Taylor, will be able to deal with this matter definitively.

The second aspect of the Government’s conduct that strikes me, and I think would strike anybody, is the extraordinary way in which they have treated Parliament. Not to reply at all to a very weighty document produced by two sub-committees jointly, which is unusual procedure in this country, for three months until a few hours before the relevant debate arises, is either almost unbelievable incompetence or discourtesy to the House that borders, frankly, on insult.

This Government like to say that they wish that national Parliaments had a greater say in matters in the European Union. In future that sort of statement will be treated with ribaldry, as hot air—there is another English word that better describes it but it is probably an unparliamentary word so I certainly will not use it. It is quite clear that on this occasion the Government have provided a really appalling example of cynical and dismissive treatment of their own national Parliament and I hope that no other Government in the Union are tempted to follow them down that very bad path.

The third aspect of the Government’s performance is the one that most attention has quite rightly been focused on—the way in which they reach policy decisions and their policy-making procedures. When I was a Minister and was faced with difficult choices, I would draw up a balance sheet of costs and benefits of any particular measure. I would try to weight them to achieve a balance and use that as an intellectual framework for discussions with officials or, where necessary, with colleagues. I was never conscious that I was doing anything remarkable or unusual; I assumed that most responsible Ministers went through a similar kind of procedure either explicitly or implicitly. Not so this Government.

The Motion mentions national interest, but it is quite clear that national interest has not guided the Government in this matter at all. You might assume that if you have 135 measures and you want to opt out of 100 definitively and opt back in to 35, those 35 were in the national interest and the 100 were not, which is why you want to get rid of them. The Government are even prepared to pay a significant price in terms of uncertainty, use of good will on the continent with their continental and Irish partners, and the administrative cost of going through all sorts of elaborate renegotiations, no doubt having to cope with the lacunae and lapses that arise. They are prepared to do all that in order to save the country from being tied to the 100 measures that they wish to opt out from.

In fact, as has been said this evening, of those 100 measures that the Government do not want to be associated with, not one of them is contrary to the national interest. Some of them are regarded as defunct or unnecessary, in which case they have a neutral significance. They are neither positive nor negative. But some of them are useful, although not dramatically vital in the way that the European arrest warrant or Naples II are really vital to the national interest. However, the Government’s own document, the White Paper—which, believe it or not, I have read through—deals with some of the measures that the Government propose to drop, to opt out of and not to opt back in to. Take, for example, item number 2 on judicial co-operation. The Government’s own document says:

“We judge that non-participation in the network may diminish the ability of the UK to coordinate complex investigations”,

et cetera. So there is a cost to opting out of that, which the Government themselves acknowledge. It is not in the national interest to opt out, it is contrary to the national interest. It is a cost, not a benefit.

The same thing applies, for example, with item number 5 on the exchange of information on drugs. The Government say:

“We judge that there may be a minor reputational risk if the UK does not seek to rejoin this measure”.

It is minor; it is not very important, but it is nevertheless a negative. It is reducing the national interest, not enhancing it, to opt out.

On item number 20 on new synthetic drugs and a warning system, the Government state:

“The UK’s participation in time-sensitive EU wide information about prevalence and harms of new substances enables us to influence EU and Member States’ legal responses, supporting enforcement and judicial co-operation … especially with the role of the internet and use of internal transit countries”.

This is a positive thing that the Government are giving up; it is not negative.

Similarly, on anti-corruption measures at item number 5—they are important, one might suppose—the Government say that given the increasing focus on tackling corruption in public office:

“The costs of membership are minimal and there are some benefits”.

So the Government are again giving up some benefits by their own admission.

Item number 87 is on combating terrorism, which is an important matter. The Government state:

“The offences created by the Decision are a useful standard for terrorist offences and by ensuring other Member States can prosecute relevant terrorist behaviours a more hostile environment for terrorists ought to be created across Europe”.

The Government are again giving up something of positive importance.

On item number 43—the prevention of unauthorised entry, transit and residence—the Government state:

“The framework decision assists with EU-wide enforcement of UK law”.

Surely that is in our national interest.

On item number 66, on the exchange of information and co-operation concerning terrorist offences, the Government state:

“Continuing to share information is therefore important both operationally and in reputational terms”.

And so on and so forth. There is another one on football hooligans, where the Government say that,

“non-participation may result in some increased costs”.

Again they recognise that there are costs, not benefits, in opting out. I could provide many other measures if I had time.

What all this amounts to is simply that, yes, the main national interest in these measures is secured by opting back into the 35 but by opting out of the remaining 100 we do not add to the national interest, we reduce it. In other words, the Government have taken a completely irrational decision. They incur the costs and risks of this complicated process of opting out and opting back in not to protect this country from some problems or costs but to deny it some additional benefits—if not enormous ones. We all know why they have done so: to buy off the Eurosceptics, and the cost of that is quite easily calculated. First, there are the costs and risks associated with the opting back in procedure; secondly, there are the not insubstantial or non-existent benefits—as I have explained—of those measures that we are now definitively opting out of. That is how this Government take their decisions. National interest has been sacrificed for a purely party political agenda. That is a fact and the Government cannot get away from it.