EU: Police and Criminal Justice Measures

Lord Anderson of Swansea Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Lord Anderson of Swansea]

My Lords, as a member of the Joint Committee I was surprised that neither in the Statement to Parliament on 9 July nor in the Command Paper of the same date did the Government bother to refer to, let alone commend, our work. However, as if attempting to remedy this slight, the Home and Justice Secretaries, in an undated letter sent about 19 July, went perhaps over the top in glowing superlatives relating to our report. Yet, at the same time, they compounded their cavalier attitude to the committee by informing us when we should conclude our next inquiry on the subject without consulting us in advance.

The point of criticism of the Government’s process has already been well made, so I turn to substance. I pose this simple question: how would a judge conclude if the evidence that we had received were placed before him or her? Surely that judge would find the one-sided comparative weight of the witnesses before us absolutely compelling and overwhelming.

Supporting the Government were Mr Dominic Raab, both in his own right and again as the drafter of the Open Europe submission. Then, of course, there was the United Kingdom Independence Party. The committee staff managed to locate Mr Martin Howe, a senior lawyer but also a Conservative activist, having sought nomination on several occasions.

However, critical of the Government’s position were all the professional bodies, all the enforcement agencies and the prosecutorial bodies. Our committee report was endorsed by the Law Society of England and Wales, the Bar Council, the Faculty of Advocates and the Scottish Government. Our one witness from the Republic of Ireland was, frankly, baffled by the Government's stance. In short, the weight of critical evidence was overwhelming and our judge would surely have been driven to the same conclusion as that which the committee reached unanimously—namely, that the Government had not made a convincing case for exercising the opt-out and that to do so would have significant negative repercussions for the national interests of our country. Nevertheless, the Government have ploughed on regardless and claim to have acted in the national interest.

The noble Lord, Lord McNally, was moved to write in the Liberal Democrat Voice that “we”—the Liberal Democrats—

“have fought hard to keep the public safe, in the face of a Euroscepticism which would put public safety at risk in the pursuit of its anti-European agenda”.

That is hardly a flattering description of his Conservative colleagues in the coalition. In the same article, he proudly claimed that the deal with those Conservative Eurosceptics illustrated the influence of Liberal Democrats on the Government. The truth, of course, is that the Liberal Democrats could have blocked the opt-out entirely had they so wished, but chose not to do so.

Again, having reviewed all the evidence, our learned judge would have noticed the leitmotif of suspicion, almost obsessive in its intensity, of the Government's attitude to the Court of Justice of the European Union. That is particularly puzzling in the light of the fact that the Government have over recent years opted into a number of measures subject to the court and must therefore have no objection in principle to subjecting themselves to the court's jurisdiction—paragraph 104 of the report. It is puzzling also because the court already has jurisdiction over pre-Lisbon EU civil asylum and immigration matters, surely central to national sovereignty. Paragraph 96 of our report pointed out that there are very positive aspects regarding preliminary references to the court. In paragraph 89, the committee, having examined all the evidence—as no doubt would our judge—dismissed the bogeyman of excessive activism:

“we can discern no convincing evidence that the CJEU has been either judicially activist or that its rulings set out to undermine the autonomy of Member States’ criminal justice systems”.

Our judge would probably consider the question of costs not to be within his remit, but there are threefold elements of costs: potential financial costs of seeking to opt back in; the general uncertainties and potential hiatus in the transition period; and, of course, the potential loss of influence in Brussels by the signal which the Government have so clearly given. Who can forget the position of the then Conservative Government from 1993 to 1997, when we lost much influence by the turmoil in the Conservative Party at the time?

All that turmoil for what? Again in the words of the noble Lord, Lord McNally, in the same article:

“The measures which are being dropped on the other hand are, by and large, those which are now redundant, those which have been superseded by newer instruments, those which have already been incorporated into UK law, and those which have very little operational use for the UK. So we’re keeping the wheat and losing the chaff”.

Similarly, the Economist of 15 July headed its article,

“Britain wants opt-outs from EU rules, as long as they don't much matter”.

Of course the Government have made some positive suggestions, for example by remedying deficiencies in the European arrest warrant, but not by diktat. The normal European method is by consensus, by forming alliances, and by working with our European partners consensually. Again, the Economist stated:

“Mrs May’s statement was designed to please Eurosceptic Tories. Instead they denounced it”.

That is, all this trouble is a political decision not a legal decision, one designed to please what one senior German parliamentarian called the Tea Party tendency within the Conservative Party.

I have one warning for the Home Secretary—I end on this. Her Tory colleagues will not be satisfied by her gesture. Like the keeper in the zoo's penguin house, she may regularly be inclined to throw fish to them, but they will swallow them down and ask for more. She should be warned: they will indeed ask for more.

--- Later in debate ---

[Lord Blackwell]

The noble Lord might like to note that the phrase is in the summary at the front. I will explain why I, for one, think that that is a totally incorrect conclusion. There is a strong reason for opting out of all these measures. Maybe there are reasons for opting back in to some of them, but there is a strong reason for starting with the presumption that we should opt out. The mistake that the committee, and I am afraid maybe the Government, made was to look at each of these measures pragmatically, on the marginal basis of whether there was some value in each particular measure. That ignores the fact that every one of these measures has a price, which is the transfer of some sovereignty from the UK Parliament and the UK courts.

There is a bigger issue, which the committee totally failed to address, although I am sure that the evidence was presented. Where measures are transferred to European legislation and European courts, where is the democratic accountability for those laws and judgments that govern the freedom and justice of UK citizens?

[Lord Anderson of Swansea]

Would the noble Lord not agree that a measure such as the European arrest warrant is not a transfer of sovereignty but a measure of co-operation?