EU: UK Opt-in Protocol (EUC Report)

Baroness Quin Excerpts

Wednesday 15th July 2015 Grand Committee

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[Baroness Quin]

That the Grand Committee takes note of the Report of the European Union Committee on The UK’s opt-in Protocol: implications of the Government’s approach (9th Report, Session 2014–15, HL Paper 136).

[Baroness Quin (Lab)]

My Lords, the report for today’s debate focuses on the Government’s policy on the opt-in protocol, which allows the UK and the Republic of Ireland to opt in to or out of EU justice and home affairs measures. The report concerns, in particular, the Government’s approach to measures—most often, international agreements—which do not have a justice and home affairs legal base. The policy of the Government is one that the former coalition Government applied from 2010 onwards, during which time both the EU Select Committee of your Lordships’ House and Sub-Committee E, which is the Justice Sub-Committee, had occasion to question its lawfulness.

The inquiry that led to this report was triggered by a letter from the then Justice Secretary and the then—and current—Home Secretary in June of last year setting out the Government’s opt-in policy in some detail. The novel reasoning underpinning that letter prompted us to hold a short inquiry. We wanted to seek the views of legal experts on a dispute that had hitherto been confined to us and the Government. We were also prompted by a series of judgments from the Court of Justice over the previous two years that appeared to put the Government’s policy in some doubt, so we wanted to seek the views of legal experts on those cases also.

While our inquiry at first glance may appear to have focused on a very narrow area of government policy, we felt that the Government’s approach raised wider concerns. First, we were increasingly concerned that the approach violated basic EU principles. We also thought that it could give rise to legal uncertainty in the many international agreements that the EU concludes and therefore cause the third countries negotiating those agreements uncertainty. We were also concerned that the Government’s approach could be counterproductive to our interests in the EU and could possibly undermine our good standing and our reputation with our partners.

In essence, the main issue that we wished to resolve was whether the opt-in protocol could be applied when the Government alone, unilaterally, considered that a proposal for EU legislation contained justice and home affairs content or whether a formal justice and home affairs legal base, under Title V of the Treaty on the Functioning of the European Union, had to be cited.

While we were concentrating on this very specific aspect of government policy, we noted—and our report makes this clear in chapter 2—that,

“the opt-in Protocol has provided the UK with a very effective safeguard against participating in legislation with a legal base in Title V, particularly internal EU legislation”.

This fact is clearly demonstrated when you look closely at the Government’s annual opt-in reports, but it was not mentioned at all in the Government’s evidence to the inquiry, which is why I stress it here today.

I should also add that the recent balance of competences review undertaken by the outgoing Government does not seem to suggest that, in justice and home affairs with the opt-in and opt-out processes that are available to them, the Government have had any particular difficulties in safeguarding their position on these issues. Overall, from the Government’s point of view, the system seems to have worked satisfactorily—perhaps the Minister can confirm this in his reply—whereas so often the general impression seems to be given that the EU is somehow constantly a threat in this area of policy and has to be constantly resisted.

Before I turn to the substance of our conclusions, however, let me mention our concern with the Government’s way of co-operating—if that is the right word—with our inquiry. Four months elapsed from the launch of the inquiry until the Government submitted written evidence and confirmed their willingness to attend to give evidence. By that time, all our other witnesses had given evidence and we were contemplating having to report without the Government’s own evidence. The Government explained that the delay was caused by a judgment of the Court of Justice of the EU, delivered last June, which they had been considering, but in our view that judgment, although complex, did not justify such a long delay in the Government’s co-operation with the inquiry. We stated as much in the introduction to our report, and we hope that similar delays will not occur in future Select Committee inquiries of this House.

It is also disappointing, of course, that we have not had the Government’s formal response to this report today. It would, I am sure, have better informed our debate. After all, our report was published on 24 March and the Government are normally obliged to respond within two months. Obviously, we had a general election, which meant that purdah was in place, but in accordance with this an extension for a response was given until 22 June, yet we learn that the Government are still considering their response. I would like to hear from the Minister today whether he has a firm date for the formal response to be sent to us. Even though time is fast running out, can we be assured that this will be before the parliamentary Recess next week?

I now turn briefly to summarise the committee’s conclusions under our chapter headings. In chapter 3, we looked at the meaning to be given to “pursuant to” in Articles 1 and 2 of the opt-in protocol. None of the expert evidence we received in the course of the inquiry supported the Government’s broad interpretation of “pursuant to” in that protocol. We felt that this was significant in itself and we noted in particular that the Republic of Ireland did not follow the UK’s practice of applying the opt-in protocol in the absence of a Title V legal base. We agreed with all our witnesses that a legal base was also necessary to define the source of the EU’s power to act and that this was consistent with the principle of conferral. We therefore concluded that the phrase “pursuant to” had an accepted legal meaning and that in the context of the opt-in protocol it meant that the Title V legal base was required before the opt-in could apply.

We also felt that the Government’s very broad interpretation of “pursuant to”, of the merits of which they tried to persuade the Court of Justice, would actually give the EU wide powers to increase its competence in many other policy fields where it is mentioned in EU treaties. We queried whether this was a consequence the Government wanted. It certainly seemed to us to be potentially counterproductive—a word I mentioned earlier.

In chapter 4, we looked at the issue of determining the legal base of an EU measure with JHA content. Again, all the evidence we received here contradicted the Government’s approach to determining the legal base of a measure with JHA content. We accepted the weight of that evidence and concluded, as a consequence, that the Government’s distinction between whole, partial and incidental JHA measures was misconceived and that the Government should reconsider their approach.

In chapter 5, we looked at the issues of legal certainty and loyal co-operation in the negotiation of international agreements with JHA content. While we accepted that there is a distinction between actual and potential legal uncertainty, we concluded, none the less, that the potential for the Government’s policy to create real legal uncertainty was considerable. We concluded, too, from our point of view in terms of parliamentary scrutiny, that the Government’s approach creates legal uncertainty around parliamentary scrutiny, as the two examples we gave in the introduction to the report showed. These two examples related to the fourth money laundering directive, an important measure, and Kosovan participation in EU funding projects.

We were concerned that the Government’s unilateral interpretation raised questions about their acceptance of the uniform application of EU law. We were therefore also concerned about what impact that might have on the UK’s reputation among other member states. Finally in this section, we concluded that the Government’s policy puts them at risk of breaching the duty of sincere co-operation, under which member states have a duty to co-operate strongly with European Union institutions in the negotiation and implementation of international agreements.

In chapter 6, we looked at how the opt-in protocol had been interpreted by the EU institutions, because the Government put it to us that they believed that the Commission had actively pursued a policy of “legal base shopping”, in order to undermine the UK’s opt-in rights, which was a serious charge to make. Certainly, in one specific case they provided evidence that lent some support to this allegation in respect of the former Commission, and perhaps in particular a former Commissioner. However, it must be said that in this particular case the European Council of Ministers, quite rightly, supported the UK’s point of view, and the UK in the Council was able to overturn the proposal for the legal base that the Commission had made, pointing out that it is related to the substance of a measure and cannot be related to whether that measure might have a certain geographical coverage or not. However, despite that exception, which the Government had drawn to our attention, we concluded that there was no persuasive evidence at all to suggest that the Commission had circumvented systematically the UK’s opt-in rights.

In chapters 7 and 8, we looked at the case law of the European Court of Justice and the Government’s litigation strategy. While we recognise the Government’s concerns, again we concluded that there was no evidence to suggest that the court for its part had sought deliberately to undermine the safeguards in the opt-in protocol. We concluded that it was highly unlikely that the court will change its established approach to determining legal bases, including for measures with JHA content, as the Government suggested it might, and we therefore recommended that the Government review their litigation strategy in the light of these conclusions.

Rather than just criticising the Government’s strategy, we also made one suggestion, that if they wanted to raise these concerns with their partners, they could consider the feasibility of an inter-institutional agreement on the scope of Title V. I would be interested to know whether the Minister feels able to respond today to that suggestion made in the report.

In conclusion, and in looking forward to hearing what other noble Lords may say on this matter, I will say that the sub-committee’s report was strongly endorsed by the EU Committee of this House and, therefore, comes here with all-party and non-party approval. I thank very much all colleagues who contributed to the inquiry, in particular my former colleagues on the EU Justice Sub-Committee, with whom it was a pleasure to work.

We believe that it is essential that the Government carefully consider the evidence which the inquiry received and which casts doubt on the legality of the Government’s policy. While the formal response to the report is still awaited, I none the less hope that the Minister can give us some reassurance here today. I beg to move.

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[Lord Faulks]

The French and German interpretations are also referred to in the committee’s report. Of course, the protocol has to be read as a whole on what its intention was. While I do not want to weary the Committee with the evidence that was given by government lawyers, the noble Lord will recall, no doubt, the fact that Article 1 should be read in the context of Articles 2 and 3. Indeed, I remind him of what John Ward said in his evidence to the committee, when the then Secretary of State for Justice and the Home Secretary gave evidence. He said, in answer to a question from the noble Lord, Lord Elystan-Morgan, that,

“I think it is important that the words ‘pursuant to’ need to be read in the context of Protocol 21. Protocol 21, we say, is different because of the particularly sensitive nature of justice and home affairs matters. But it is clear, looking at the context of the rest of the treaty, that it is fully recognised that justice and home affairs matters are difficult and sensitive, which helps to interpret Protocol 21”.

[Baroness Quin]

I would like to pursue this further. The phrase “pursuant to”, which my noble friend Lord Richard referred to, generally has an accepted meaning, both in English and in the other language versions, which applies throughout EU legislation, and it is simply the Government who have one view and everyone else has another view. Is that not the case?

[Lord Faulks]

Of course, I do not dispute the evidence that the committee heard. The argument that was used in the course of the questioning by the noble Lord, Lord Elystan-Morgan, was that we should be looking at the natural, ordinary meaning, which is the traditional way of interpreting a statute in British law. A purposive interpretation would admit a rather broader interpretation of what the protocol was intended to achieve in terms of the opt-in and opt-out.

These are deep legal waters, and we could spend a great deal of time debating this. I accept that the preponderance of legal opinion was against the government interpretation, but I respectfully refer the Committee to the fact some of the difficulties were acknowledged by the committee in the course of its evidence—not, I accept, specifically to deal with the “pursuant to” aspect, but to do with the choice of legal basis. Paragraph 119 of the committee’s report states:

“Dr Bradshaw said that the Law Society had no insight into the Commission’s thinking, but noted that the choice of legal basis was ‘a matter of profound disagreement on occasion, not just between the EU institutions and the member states, but also within and among the EU institutions’”.

Indeed, the conclusions of the committee at paragraphs 184 and 185 were:

“We agree with witnesses who have suggested that the CJEU’s approach to determining the legal base of international agreements means that the complexity of an agreement is not always reflected in the resulting choice: it renders somewhat invisible the ancillary or secondary objective, including ancillary or secondary JHA objectives. We understand why this would cause concern to the Government”.

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[Baroness Quin]

My Lords, even though this has not been a long debate with many speakers, it has been a high-quality debate with many powerful points made. I am very grateful to my noble friends and to the noble Baroness, Lady Ludford, for all the words they have said in support of the work of the committee and of its report. I echo strongly the words of my noble friend Lord Richard about the excellent work that the clerks of the committee did. In my experience they worked assiduously and are immensely able. They certainly guided me, as a non-lawyer, through some complex legal territory which might have become a legal quagmire without their assistance.

I also thank the Minister for the manner in which he responded. His defence of the Government’s policy as it has evolved so far did not elicit much support from those who spoke in the debate, but I hope that in the Government’s consideration of this matter—which, given the long delay, I hope will be very serious—will take on board the points the committee made. Although I am no longer chair of the sub-committee and no longer a member of the EU Select Committee, I have a feeling that this subject will not go away as long as the Government persist in following this approach. I say that to the Minister in the hope that I may convince him and his colleagues to look more favourably on the report’s recommendations than we think may be the case at the present time. Having said that, I once again thank all those who have taken part in this debate.

Motion agreed.