Jacob Rees-Mogg vs Andrea Leadsom

Justice and Home Affairs Opt-out

Debate between Jacob Rees-Mogg and Andrea Leadsom

Monday 7th April 2014

(11 years, 2 months ago)

Commons Chamber

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Andrea Leadsom (South Northamptonshire) (Con)

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I start by commending my right hon. Friend the Home Secretary for her courage in tackling this problem, which stems from the previous Government’s failure to give the British people their say on whether Britain should sign up to the Lisbon treaty. That were really the background to today’s debate: the previous Government negotiated, in the Lisbon treaty, the potential for Britain to opt out of the justice and home affairs measures, and that is what the Home Secretary made her announcement about last year. The problem is that, as with all EU matters, this goes to the heart of the democratic accountability of the EU and the issues relating to national sovereignty in Britain, which give people in this country so much concern today.

I am one of the co-founders of the Fresh Start project, which was established in 2011 to examine in detail what could make the EU more globally competitive, more democratically accountable and more flexible. The justice and home affairs question profoundly affects issues of democratic accountability and flexibility. We are in a halfway house where we have invoked our opt-out on pre-Lisbon-treaty measures and are now trying to opt back in to 35 of them which we consider very important for British national interests.

My right hon. Friend the Home Secretary said when she announced that she was going to look at exercising the opt-out that

“we will consider not just opt-ins and opt-outs but the other opportunities and options that are available.”—[Official Report, 15 October 2012; Vol. 551, c. 41.]

She has said:

“First, the Government could apply to rejoin measures within the scope of the 2014 decision”—

which is the block opt-out, and that is indeed what she is doing.

She continued:

“Secondly, the Government believes that in some cases it would be possible to rely on pre-existing Council of Europe Conventions or bilateral treaties….Thirdly, in some cases it may be possible to negotiate bilateral treaties with each Member State or with the EU that would effectively replace the instruments in question…. Fourthly, in some cases there may simply be no need for any such agreement to be in place in order for there to be cooperation.”

The difficult position the UK finds itself in relates to the block opt-out and what happens once we have signed back up to 35 measures. In written evidence supplied at the end of 2012 to the relevant Sub-Committees of the House of Lords European Union Committee, the Government stated that the “practical effect” of the ECJ “gaining full jurisdiction” in the areas of the “re-opted in” measures

“after the transitional period—

from 1 December 2014—

“is that the ECJ may interpret these measures expansively and beyond the scope originally intended. This concern is compounded by the fact that the ECJ has previously ruled in the area of Justice and Home Affairs in unexpected and unhelpful ways from a UK perspective. For example, in 2008 in the Metock case, the Court made a ruling which extends free movement rights to illegal migrants if they are married to an EEA national who is exercising free movement rights. Since the Metock judgment we have seen a steady increase in sham marriages involving EEA nationals.”

It should also be noted that the ECJ would start applying its human rights jurisprudence, drawing on the EU’s charter of fundamental rights, to the UK criminal justice system within the areas falling under EU policing and criminal justice laws that bind the UK. It is, therefore, extraordinarily difficult to decide what exactly Britain should do in its best national interest on these justice and home affairs measures. Of course the Home Secretary has decided that it is in our national interest to opt back in to 35 of them, and I suspect that she has decided that in great part as a result of the clear advice from the House of Lords European Union Committee, which said in 2012:

“We recognise the theoretical possibility for the United Kingdom to conclude multiple bilateral and multilateral agreements with the other Member States, in place of some existing EU measures, and that other Member States would have an interest in putting effective mechanisms in place. But this would be a time-consuming and uncertain process, with the only claimed benefit being tailor-made arrangements excluding the CJEU’s jurisdiction. In some cases new bilateral agreements would be dependent on the legislative timetable of the other Member States, which may accord them a low priority.”

It went on to say:

“We consider that the most effective way for the United Kingdom to cooperate with other Member States is to remain engaged in the existing EU measures in this area.”

Jacob Rees-Mogg

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I am hugely enjoying my hon. Friend’s speech. Is she saying that the House of Lords, in its great wisdom, has come to the conclusion that it is better to sacrifice an important part of our constitution for the administrative convenience of our bureaucracy, because to address matters one by one would give it too much work?

Andrea Leadsom

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Actually, yes, my hon. Friend is right. I made a similar point to members of the scrutiny Committee. He is right that there is an element of, “This is all too difficult, so we should not embark on it.” I have had such points made to me by other officials in this place, who seem to say that, as this is all so difficult, we should opt back in to existing measures. If that were the case, it would be entirely unacceptable.

Let me quote the European Union Committee:

“If the United Kingdom reverted to Council of Europe Conventions instead of the equivalent EU measures, this would raise legal complications, and could also result in more cumbersome, expensive and weaker procedures. It would also weaken the ability of the United Kingdom’s police and law enforcement authorities to cooperate with the equivalent authorities in other Member States regarding cross-border crime.”

In other words, it concluded that it would be easier and probably more successful for the UK to opt back in to JHA under the current terms, having opted out of all those other measures that Opposition Members have been keen to point out are not terribly important or relevant anyway. That is possibly the right step for the time being, but there are bigger issues at stake: democratic accountability to the British people, and flexibility.

Under the eurozone fiscal crisis, it became very apparent that eurozone members needed to move to greater fiscal integration, European banking union and, potentially, down the road towards a federal states of Europe. Opinion polls, discussions in this House and even Opposition Members have made it clear that Britain’s national sovereignty should remain intact, and that we do not intend at any time soon either to join the euro or to move on to the path of greater fiscal union or, indeed, a federal states of Europe.

With that thought in mind, it seems that the status quo in the EU is simply not an option. Right across the European Union, the democratic legitimacy of the EU is wafer thin. We will see in the European elections in May what European citizens—if there were such a thing, which there is not; it is merely shorthand for the citizens of EU member states—think about the ever closer union in the EU. I suspect that we will find that they also reject the concept of a federal states of Europe. That has profound implications for what we do here in this Chamber. When the Prime Minister comes to look at the fundamental reform that will be in Britain’s much better interest, he should look at the area of justice and home affairs with a view to considering whether we can undertake bilateral or multilateral agreements with EU member states or with the EU as a legal entity, which it is now under the Lisbon treaty. Of course, the advantage of having bilateral treaties with the EU rather than opting into justice and home affairs is that things would be easier for Britain as a uniquely different member state with common law practice rather than a written constitution, even if those agreements were worded in precisely the same terms as the European arrest warrant or the Europol and Eurojust directives, as the European Court of Justice would not have jurisdiction over them and they would not be able to be changed under qualified majority voting without the say so of this House.

The area of justice and home affairs goes to the heart of the democratic accountability of the European Union and ought to be a key focus for the Prime Minister’s review of how Britain can achieve a better settlement within the European Union once our party has won the 2015 general election.

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