European Union: Justice and Home Affairs

Baroness Corston Excerpts

Thursday 8th May 2014 Lords Chamber

[Baroness Corston (Lab)]

My Lords, the noble Lord, Lord Hannay, has, in his normal comprehensive and concise fashion, already addressed all relevant matters arising out of the work of our two sub-committees relating to the 2014 block opt-out decision. He is right: the block opt-out was comprehensively debated by this House in July last year and January this year, and I do not wish to detain your Lordships any longer on that matter.

However, I want to take this opportunity to reiterate that the Justice, Institutions and Consumer Protection Sub-Committee of the European Union Committee, which I chair, remains unconvinced by the Government’s argument for triggering the block opt-out. I also wish to endorse the comments of the noble Lord, Lord Hannay, that we support the Government in their bid to rejoin the 35 measures that they identified in Command Paper 8671. We also hope that the Government will stay true to their promise to negotiate with the Commission on the issue of coherence in good faith and with flexibility.

On the subject of coherence, my committee recently considered a Commission report that looked at the state of implementation by the member states of three key justice and home affairs framework decisions, which introduce mutual recognition into aspects of pre-trial and post-sentence detention. Our two Protocol 36 reports addressed all three framework decisions. The Commission’s report also argues that, alongside the European arrest warrant, all three framework decisions constitute a coherent package of legislation. The Government do not agree. I hope that this example does not indicate how difficult these negotiations will prove. However, we await with anticipation the Government’s response to our letter dated 6 May.

I turn now to the Government’s report detailing the individual opt-ins for 2012-13. Most of the legislative proposals scrutinised by Sub-Committee E are subject to the UK’s opt-in protocol. There is not the time or, I suspect, the will for me to mention each and every opt-in decision that we have considered this year. Rather, I shall focus on a small number of high-profile or significant proposals that raise specific issues that I wish to share with the House today.

As to my committee’s scrutiny of the opt-in, I put on record that we remain committed to considering the merits of individual opt-ins as part of the scrutiny work that we undertake on behalf of the House. To that end, during the year my sub-committee has engaged the Government in a line of correspondence, seeking to shed some light on the wider ramifications of their approach to these matters. In particular, we have endeavoured to ascertain what impact government opt-in decisions have on the UK’s influence and position in the subsequent negotiations in the Council. The catalyst for our correspondence with the Government was the debate on 4 November last of our report on the opt-in to the Eurojust regulation. I will return to the detail of that specific opt-in in a moment.

My correspondence with the Government on the wider ramifications of the UK’s opt-in has moved between three government departments—the Foreign and Commonwealth Office, the Home Office and the Ministry of Justice. I see the Minister nodding his head. I am told that our most recent letter on this matter, dated 6 February this year, is currently with the Ministry of Justice. We initially expected a reply by 21 February. An extension was granted by sub-committee officials but not to this date and we have not yet received a response. Is the Minister able to offer the House an indication of when we can expect a response? If not, can he promise to pursue the matter with the Ministry of Justice?

I turn now to those individual matters of particular interest highlighted by the Government’s report that fell to my sub-committee and merit specific attention in today’s debate. The first concerns the directive on the protection of the euro and other currencies against counterfeiting. While in the end we agreed with the Government’s decision not to opt in to these negotiations at the outset, this was an occasion when the Government’s Explanatory Memorandum did not address the opt-in at all. The Government have committed to supporting parliamentary scrutiny of opt-in decisions, and as part of their commitment they have promised to provide information on the factors affecting the opt-in decision where the Government are in a position to do so, although they did not do so on this occasion. If the sub-committees of the European Union Committee are to be able to fulfil effectively the role entrusted to them by the House, at the least we would expect the Explanatory Memorandum to any prospective legislation subject to the opt-in to address: first, the policy implications of the proposal; secondly, a preliminary assessment of the prospects of negotiating away the concerns identified; and thirdly, some indication as to whether the relevant UK authorities will be hampered by the UK’s non-participation. This did not happen in this case and we expect it to happen in the future.

The next legislative proposals of interest concern the interrelated regulations reforming Eurojust and creating the European Public Prosecutor’s Office, or EPPO. Both these proposals were brought forward together in July last year and both are subject to the UK’s opt-in protocol. However, as the Minister acknowledged in his opening remarks, the coalition agreement ruled out the UK’s participation in EPPO—a position all but enshrined by the European Union Act 2011—so the question of the UK opting in to EPPO did not even arise. The window within which the sub-committees are afforded time to consider individual opt-in decisions is small and on this occasion it was complicated by the Summer Recess. Nevertheless, against a very challenging timetable my sub-committee produced two reports into these matters.

The first report, on EPPO, recommended that the House should issue a reasoned opinion challenging the proposal by way of subsidiarity—a recommendation that I am pleased to say was endorsed by the House on 28 October last. The second report dealt with the application of the opt-in to the Eurojust proposal, and we urged the Government to opt into the regulation. It was published on the same day as the House debated the EPPO report. While the Eurojust report acknowledged the validity of the Government’s concerns with the proposal, we urged the Government to opt into the negotiations from the outset because, in our view, opting in represented the most effective way for the UK to continue its important membership of Eurojust while securing a text that best served the UK’s interests.

Unfortunately, at the subsequent debate on 4 November, despite clear support from all sides of the House, I was forced to withdraw the Motion approving the report in the face of opposition from both Front Benches. Nevertheless, my committee remains of the view that our report advocated the right approach to the opt-in in this case; and we fear that, in deciding not to opt into the regulation reforming Eurojust, the Government have taken the first step towards the door marked exit. Will the Minister tell the House how the negotiations on the Eurojust proposal are progressing and whether they are progressing to the UK’s advantage?

I also wish to address my comments in relation to the impact of opt-outs. I spoke to the predecessors of both Ministers on the Front Bench some time ago about the fact that there were impact assessments of the opt-ins but no impact of the effect on the United Kingdom of the measures that we were opting out from.

As I said, there is not time to go into the detailed discussions between the sub-committee that I chair and the Government on the merits or otherwise of each individual application of the opt-in. While my comments during this debate appear to focus on the negative aspects of my sub-committee’s relationship with the Government when we scrutinise the opt-in, I must add that, in the vast majority of the decisions of relevance to the opt-in, the Government and the Justice, Institutions and Consumer Protection Sub-Committee are in agreement.