European Union: Justice and Home Affairs

Baroness Hamwee Excerpts

Thursday 8th May 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have always said that you cannot play the ball if you take your bat home. If you walk out of a negotiation, you should do it only if you have planned to do so, and if you have a strategy for getting back in. Early in my professional career, I knew a solicitor who mistakenly walked out of a meeting in his own room; there is no way back from that.

My default position is clear: stay in the game and stay in the room, and do not be overconfident—or, indeed, arrogant—about being invited back. The noble Lord, Lord Hannay, and others, put all that far more diplomatically than I just did.

I may be blissfully blinkered, but I recognise the dangers in being too simplistic about all this. I recognise the importance of careful scrutiny, as did my noble friend Lord Faulks. He recognises that the Executive can benefit from that. The points which have been made about the impact assessments are not rhetorical, but points of real substance. Until I listened to this debate, and in particular to what the noble Baroness, Lady Corston, had to say, the importance of an impact assessment of what you are not doing—of what you are opting out of as well as opting in to—had not occurred to me.

Therefore, although my first reaction to the very scathing joint report of the three Commons Select Committees was to wonder whether they were too close to a whinge to be useful, they were not wrong. Process, as well as substance, is important. So, too, is the procedure for the eventual vote, which it appears will be a vote in the singular. The Home Secretary has made it clear that we will be presented with a package. All noble Lords will be acutely aware of the tensions and constraints of being faced with a single decision; we face it every day with secondary legislation, which is unamendable.

It is trite but true that in such an internationally connected world, the bad guys are among those who are internationally connected; the noble Lord, Lord Judd, put that very clearly. Many Europhobes seem to distinguish between the states in the European Union and their roles within the EU, and as holiday destinations. I am sure that many who have very determined anti-EU views would be apoplectic if they were described as being soft on crime. However, if one thinks about the measures which we are being asked to consider, the resistance to many of those measures in the area of justice and home affairs is tantamount to that. I agree very much with my noble friend Lord Teverson that it would be very helpful, essential even, to disaggregate the term “national interest”. It is a matter of identifying the priorities and explaining what you mean by it. Some aspects of national interest are in conflict with one another, so one has to be clear about which ones take priority.

I do not pretend that opting in to everything is any sort of panacea. The Minister mentioned the Passenger Name Record data agreement and the Council decision on that. The annual report confirms:

“The UK has recognised first-hand the benefits of PNR through its own border systems”.

Just after reading that I read a piece by Simon Calder in the Independent about the recent problems with the IT systems at our borders, when,

“the passport readers and ‘e-gates’ stopped working. Manual processing led to ‘longer queues for some passengers’ according to the Immigration and Security Minister … that translated as ‘mayhem’”.

The Minister, he goes on to say, said:

“‘Security must remain our priority at all times’”.

Of course; but we have a very respected journalist saying:

“What the minister actually meant was: the illusion of security must be maintained at all costs”.

He went on to describe the problems around that, saying:

“The authorities want to keep bad people out. Yet the UK’s frontiers … are leaky. So officials plod dutifully through the procedure of manually entering the passport details of returning holidaymakers who they know pose no threat and are merely tired, grumpy and keen to get home”.

I mention that because it seemed to me to point to the experience of some of our systems as experienced by our citizens on a day-to-day basis, and their perception of how we go about some of these things.

I wanted to mention two other matters; so much else has been covered. The first is the probation order. Our EU Committee, in its inquiry on the 2014 opt-out decision, referred to this, reiterating the view that the,

“measure has potential to provide benefits for the management of offenders on a cross-border basis and that nothing is being gained by not implementing its provisions”.

The Government’s response was to support the principle but to be concerned about practical operability and the possibility of different practices among member states, with there being,

“no clear understanding as to how this measure will work in practice and thus very little evidence on which to judge its effectiveness”.

The Government’s response to the EU Committee was to say that these issues are,

“unlikely to be resolved during our negotiations with the Commission”.

I latched on to a comment by the Justice Secretary in a debate in the House of Commons, when he said:

“At the moment we believe the measure is flawed and we have therefore decided it cannot be in the list of things to opt back in to”.—[Official Report, Commons, 7/4/14; col. 92.]

I cling on to the phrase “at the moment”, in the hope that the moment will come, because it would be a great pity if those with suspended sentences, who are doing community service or are on probation, cannot fulfil their sentences back in the UK rather than where they have been sentenced. This would be so much in line with our own rehabilitation agenda. In recent weeks we have often discussed such matters as prisoners in this country being released into the areas where they will be at home with their families, and the importance of settling back with family and a job, without delay. I hope that the Government can keep working at this to overcome the difficulties that have been identified.

We have also not opted into the directive on children suspected or accused in criminal proceedings. I mention that as well because the points that I am going to list will resonate with Members of your Lordships’ House. We spend a lot of time, rightly, on considering children within the justice system. The directive covers matters such as a mandatory right to access to a lawyer and not being able to waive the right, as well as a right by children to an individual assessment to identify the child’s specific needs for protection, education, training and reintegration into society. Then there is the questioning of children being recorded. The directive says that,

“all measures alternative to deprivation of liberty should be taken by the competent authorities whenever this is in the best interests of the child”.

It says:

“In proceedings involving children, the urgency principle should be applied to provide a rapid response and protect the best interests of the child”.

I understand that there may be questions over how these things are applied, but the principles are ones that we would all agree with.

I have said that I am concerned about the style of negotiation and how we will be left with a series of bilaterals, which of course always depend on the other party agreeing to play. The short point is we cannot assume that those negotiations will succeed in our terms. This is all work in progress. I do not suppose that my noble friend Lord Taylor of Holbeach will respond to the encomium of the noble Lord, Lord Dykes, with anything other than due thanks.

Like the noble Lords, Lord Teverson and Lord Boswell, I think that comprehensibility and transparency are important because you are not really transparent unless most people understand what you are doing and saying. All this is central to this area of work. It is important that, in dealing with these issues, Parliament and the Government are not just accountable but manage to deal with them in a way which is reasonably accessible and understandable—to Parliament, as a start, as the noble Lord, Lord Boswell, said. I do not want to continue to share the analysis and the gloom of the noble Lords, Lord Bowness and Lord Judd.