EU: Justice and Home Affairs

Lord Boswell of Aynho Excerpts

Wednesday 3rd July 2013 Grand Committee

[Lord Boswell of Aynho]

My Lords, I, too, thank the Minister for a useful report and, in my role as chairman of the European Union Select Committee as a whole, I extend those thanks to all those who are participating in this debate, which is exposing some interesting issues.

Be it far from me to suggest that the issues are easy to grasp at first instance and, to be frank, I would not recommend them to a novice member of my committee who had never been to one of these debates because it is not the easiest territory on which to start. However, we should remember as a committee that this subject reflects the real interests, welfare and, in certain cases, security of our citizens. It is important that we get it right. I am heartened by the way in which the Minister presented his case in terms of looking at the issues and making decisions on their merits. I say, with respect, that that is the way in which our sub-committees have tended to produce their reports, even on occasions when their conclusions have differed from those of the Government—or perhaps have not been confirmed by government until a later stage.

Inevitably because of those comments, my emphasis will be on aspects of the process. I have to offer some praise to the Government and some blame, too—alternatively, as it were. We certainly all welcome the fact that this report is being debated approximately two months after its publication. That is in line with the request made by the committee during the debate on the first annual report in 2011. I am delighted to see the noble Lord, Lord Roper, attending this debate, and he will remember that request. So far, so good but, as the Minister wisely confessed to the Committee, it is regrettable that this, the third annual report, was published nearly four months late, although its two predecessors were bang on time and both came out in January. The importance of timeliness should be emphasised by the Minister in rallying the outlying departments that have to be consulted on these matters. I hope that he can give an assurance that unless some great disaster intervenes, the fourth annual report will be published on time in January next year. There is a related issue to this and it would be helpful if the Minister could clarify how the report’s delayed publication will impact on the scheduled publication of the mid-year update to the report, which should be available by now, or very shortly in early July.

While on the subject of complaint, we also note that two of the opt-in decisions listed in Annexe 1, which is a very helpful annexe, cited incorrect legal bases. These have been subsequently corrected in correspondence with the European Scrutiny Committee in another place. Mistakes happen, of course, but we trust the Government will ensure that such errors are not repeated in the next annual report.

To turn to the positive, we, too, welcome the recent publication of the Government’s code of practice on scrutiny of opt-in and Schengen opt-out decisions. This is for the attention of all government departments to ensure that the views of Parliament are taken into account. I thank our officials in the Select Committee for their input to that process which has been mutually beneficial.

To come to what is, I suppose, the most important legal crux, but, again, not a particularly immediately obvious one, there is a consistent implication from the Government that the UK opt-in will apply to proposals which include justice and home affairs elements, despite not citing a Title 5 legal base, which is the normal legal basis for a justice and home affairs proposal. The Select Committee of this House and the European Union Scrutiny Committee in the other place have had little sympathy for this approach in the past. We suggest that it tends to fall on deaf ears in the Commission and Council. Perhaps the Minister will indicate to this Committee whether the legal base of a new European Union committee has ever been amended as a result of the Government’s approach in this regard and what the current Commission and Council position is on this matter.

Turning to slightly more substantial matters, the report notes that negotiations continue on a number of proposals where although the United Kingdom Government did not opt in during the initial three-month period, it remains their objective to seek to amend the text in a way that will allow the United Kingdom to exercise its right to opt in to the proposal after it has been adopted across the board. This situation applies to the directive on the freezing and confiscation of the proceeds of crime and the directive on the right of access to a lawyer. I think we all have some sympathy with doing this; the question is whether an acceptable outcome can be achieved. I would be grateful if the Minister could provide an update regarding what progress has been made in relation to both these proposals, including the likelihood of post-adoption opt-ins by the Government.

The Minister’s report refers to the proposed Europol regulation as a “forthcoming dossier”. Owing to the delay, the proposal was published very shortly afterwards. We acted fairly quickly in our Sub-Committee F report regarding the measure, which recommended that the United Kingdom should opt in. It was debated and endorsed by this House on 1 July. We note that the Government must reach a decision in response to that by 30 July, which will take the views of both Houses into account. We look forward to receiving notification of that decision, presumably before the other place goes into recess on 18 July. There is not much time for that, but it is important to know where we are.

Then there is what I might call the elephant in the room, which is the United Kingdom’s opt-out decision to be taken on the existing or pre-existing measures in 2014. The report correctly notes that this is a separate issue as it concerns the pre-Lisbon measures, but it is relevant in the context of this debate. All the post-Lisbon measures that the United Kingdom has chosen to participate in are listed in the report. It is worth recording that the average participation by the United Kingdom Government in these post-Lisbon measures varies, but is somewhere between 70% and 80%, so the significant majority are acceptable to the Government on consideration, although in certain cases, including the two I have referred to, it may take time, and it may take more than the three months to reach an acceptable decision. We would feel better late than never, if I may put it like that in shorthand.

Granted that all the post-Lisbon measures involve the jurisdiction of the Court of Justice of the European Union, we wonder about the Government citing concerns about this jurisdiction as one of the reasons for exercising their opt-out in relation to the pre-Lisbon measures that I have mentioned, which they suggest were not drafted with the court’s jurisdiction in mind. In the report that our joint sub-committees have issued on the opt-out report in relation to Protocol 36, this suggestion was considered and rejected. We therefore look forward to a further announcement on the opt-out, which we understand is now imminent.

It would be fair to say, in summary, that although we are not in any sense ideologically in favour of always acceding to justice and home affairs measures, and have aligned ourselves on a number of occasions with the Government in not doing so, we are broadly sympathetic to the approach where we can do so. We hope that the Government will wish to consider the Protocol 36 decisions sympathetically and provide a good portfolio of responses in due course.