2014 JHA Opt-out Decision

Lord Beith Excerpts

Monday 15th July 2013 Commons Chamber

[Mrs May]

We are going to ensure, as the motion suggests, that the Scrutiny Committee and the two Select Committees have the opportunity properly to scrutinise the set of measures, and there will be two votes in the House. We have always been clear that Parliament and its Committees should have adequate time to scrutinise the set of measures. That work does not need to be done before today’s vote, because today’s vote is about the decision to exercise the opt-out.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

rose—

[Pete Wishart]

rose—

[Mrs May]

I give way to the Chairman of the Select Committee.

[Sir Alan Beith]

I am grateful to the right hon. Lady. I can confirm that I was consulted about the voting arrangements, but that was only last week and it took place by telephone because I was out of the country. That consultation took place only a week ago. What happened to the commitment that, by February this year, the Committees would be given explanatory memorandums on which to base their work on the opt-ins?

[Mrs May]

I have already said to the right hon. Gentleman and to others who have raised the issue of the explanatory memorandums that I am sorry that it was not possible to produce them at an earlier date. We have looked at the time available for scrutiny by the Select Committees and the Scrutiny Committee, and for the second vote on the potential measures that we might choose to opt back into. The explanatory memorandums were made available last week, and they are available to the Committees in their consideration of any measures that the Government should opt into or seek to rejoin. That information has now been made available and I hope that it will be able to inform the Committees’ considerations.

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[Mr Cash]

The Command Paper sets out, very late in the day, various lists, proposals, explanatory memorandums and the rest of it, effectively bouncing the Committees and shunting straight past the scrutiny process, in defiance of the promises and undertakings given months ago. The Chairs are deeply concerned about this attempt to push the scrutiny process to one side. The European Scrutiny Committee, which I Chair, has a specific job to do under Standing Orders that cannot be brushed aside by the Government or anybody else. Those are the Standing Orders of the House. The other two Committees will want to look at policy questions, but we consider proposals more on a document-by-document basis, and there are 130-odd of them, so the matter has to be dealt with within the framework of Standing Orders.

I look to the Justice Secretary, who is sitting on the Front Bench, knowing in my heart that he wants to ensure that the scrutiny process works effectively, and I invite him, in consultation with the Home Secretary, to accept our amendment and put in place that proper scrutiny process. There is no great hurry. What puzzles many Members is why an attempt has been made to bounce the House, as it were; we are puzzled about why this had to be rushed, and we have had no explanation. We simply do not understand the reasons. We do not see why there has to be a vote either. Many people think there should not be one.

In January, the European Scrutiny Committee requested that the relevant Committees should have sight of the Government’s impact assessments on the various measures under consideration. Will the Home Secretary and the Justice Secretary supply us with this information as soon as possible? It is all part of the scrutiny process. If the Government really want transparent and democratic systems that work in the interests of those whom we have the honour to represent, it is essential that we do this properly.

[Sir Alan Beith]

rose—

[Mr Cash]

I give way to the Chairman of the Liaison and Justice Committees because he also has matters to raise.

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[Sir Alan Beith]

Did the three of us—the three Committee Chairs—not warn the Government repeatedly against allowing this situation to arise by asking them to produce the memorandums in the early part of the year?

[Mr Cash]

This is driven not by hostility, but by basic common sense: it helps the democratic process and the working between the Government and the Select Committee system, whose role has been enhanced recently, to work with the grain. That is the point: this has been working against the grain. I know that my right hon. Friends the Justice Secretary and the Home Secretary, not to mention the Prime Minister, are conscious of these questions. If mistakes were made in trying to rush and not give scrutiny the opportunities that are needed in the interests of those whom we serve, it is essential to get this right. I urge them strongly to accept the amendment in the name of the Chairmen of those Committees, and on which the Chairmen of other Committees have expressed an interest too.

The Opposition’s amendment is a rather curious state of affairs, something to which I referred when I intervened on the shadow Home Secretary. I simply put it on the record like this: the full sequence would be that the United Kingdom would have to notify its block opt-out decision six months before it could notify which measures it would seek to opt back into. The specific order is clearly set out—I was not trying to bounce the right hon. Lady—in article 10 of protocol 36, and has been confirmed by the Commission in response to a question from the European Parliament. We know what the sequence should be, so it would not be possible for the Government to notify the European institutions of their intention to exercise the block opt-out once, to use the wording of the amendment, those institutions

“have committed to the UK’s ongoing participation”

in the measures concerned. There is something wrong with the wording of the Opposition’s amendment, because it does not fit with article 10 of protocol 36. Anyone can make a pedantic point, but this goes to the heart of article 10 of protocol 36.

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[Chris Grayling]

Further to that point of order, Madam Deputy Speaker. It might be helpful to the House to say—as I was intending to in my winding-up speech, but this will stop everybody making the point all the way through the debate—that we will accept the amendment standing in the names of my hon. Friend the Member for Stone (Mr Cash), my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) and the right hon. Member for Leicester East (Keith Vaz).

[Sir Alan Beith]

Further to that point of order, Madam Deputy Speaker. Can I claim a reward for getting my amendment accepted before I have actually moved it?

[Madam Deputy Speaker]

Sir Alan, you were just fractionally ahead of me. I seem to recollect that Mr Speaker said that the amendments would be formally moved at the end of the debate. Perhaps this is an indication that we should have the Government opening and closing a debate before we actually have that debate, so that we know where we stand. Mr Bryant, thank you very much for your point of order—

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[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I rise on behalf of the Liaison Committee and the Justice Committee, both of which I chair, to speak to amendment (b), which I can do very much more briefly now that the Justice Secretary has indicated that it will be accepted, although I need to explain why we tabled it. It takes something, as the right hon. Member for Leicester East (Keith Vaz) said, to bring together on matters European the right hon. Gentleman and myself, whose views are not so different on these issues, and the hon. Member for Stone (Mr Cash). That arose from the way in which the Government have gone about this process, which is not the way that they said they would go about it. However, in two moves—in a two-step—over the past five days, the Government have sought to respond to our concerns, and I very much welcome that.

The original change that was made last week was specifically to endorse the role of Select Committees in considering the Government’s proposals as to which measures we should opt back into. The reason that we were not happy with the wording which then emerged, which was a considerable improvement on the Government’s first motion, was that it appeared to us that the words would restrict the Committees’ ability to argue for the inclusion of measures not on the list or the exclusion of measures that were on the list. Our understanding had been that specific confirmation of the list was a matter for the second debate and vote, after the Committees had considered the issues raised by the Government’s statement of what they were minded to do on the various opt-in possibilities.

[Chris Bryant]

As I understand it, in that meeting the Home Secretary asserted that it was absolutely essential—legally necessary—that there be a vote today to allow the opt-out to happen. Does the right hon. Gentleman understand that really to be the case?

[Sir Alan Beith]

There has been argument about that from two Members who devote a great deal of time to the issue and I am reluctant to become the arbiter of this argument. All we sought to secure in our capacity as Committee Chairs was that the Committees’ ability to do the job was not inhibited and could not be restricted by someone pointing to the wording and saying, “You can’t discuss that possibility. It’s outwith your reach.” What the Government had made clear all along and made clear again to me in a telephone call last week while I was away with the Justice Committee was that there is to be a second-stage process as originally envisaged, and at that stage there will be confirmation of what is at present clear Government policy as to what the list is, following consideration of the representations and views that may be put forward by any of the relevant Committees.

I do not believe that in seeking to meet the Committees’ wishes and excluding those words, the Government are seeking to change their policy. They are simply making it clear that the procedure is an open one in which Committees can put forward their representations, whether they support the list or seek variations in it.

[The Minister for Immigration (Mr Mark Harper)]

I confirm that that is the case, but let me be clear that what the Home Secretary said about the need for this House to take a view was that it is not a legal but a political issue. The European Commission has made it clear that it will not engage in a discussion or a negotiation until we make clear the view of the Government and this Parliament. That is what the Home Secretary said in her speech and that remains the Government’s position.

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[Sir Alan Beith]

We would have been in a happier and more comfortable position had the Government carried out their original intention to deliver memorandums to the Committees by February of this year, followed as soon as possible by more detailed impact assessments. That was not done. The Committees had been led to believe that it would be done so they waited and waited for those things to appear, so that they could start their consideration on the basis of clear information about what the Government had been advised and which way their thinking was going.

[Bob Stewart]

Does that mean that we now have a set time by which all the Committees are to complete their consideration? For example, is the end of consideration period to be completed by the end of the year?

[Sir Alan Beith]

We have an end of consideration date at the end of October, which is clear in the motion and emerged from discussions between Committee Chairs and the Government. It was not our ideal timetable, which would have started back in February, but that is where we are now.

What we have to consider now is how best the Select Committees can do their job in drawing the attention of the House and the Government to any concerns they might have about opt-ins that are on the list and opt-outs—or not-opt-ins, if that is the right phrase—that they might wish to consider. It is for the Committees, as Ministers have confirmed, to decide how they will go about this task, but a timetable has been set.

There is still more information which can usefully be given to Committees in the form of a more detailed impact assessment than is contained, for example, in the Command Paper. We are entitled to continue to seek that, and if we do not get it, awkward questions will be asked of Ministers when they come before the Committee, in order to elicit the information that we need. Our purpose, which will be fulfilled by the exclusion of these words, was to give the Committees of the House the scope to which they are entitled, which the Government from the beginning said they would have, in order to consider these matters before the final decision is made.

[Chris Bryant]

May I ask the Select Committee Chairman a question about how the three Committees will divvy up responsibilities? The Government have submitted not one memorandum but five—three from one Minister and one from each of the others. There might be confusion for the House if there were three reports that did not coincide.

[Sir Alan Beith]

Committees are well accustomed to dealing with overlap of responsibility. The Liaison Committee is also well accustomed to assisting in sorting out any problems that overlap may generate. There are issues that fall within Home Affairs which are of interest to the Justice Committee, such as Eurojust. We will find ways of dealing with that, even in a compressed time scale. I welcome the Government’s acceptance that in the letter as well as the spirit they should recognise that Select Committees of this House have a right and a duty to advise the House on the basis of open consideration without undue restriction.