European Union: Justice and Home Affairs

Lord Boswell of Aynho Excerpts

Thursday 8th May 2014 Lords Chamber

[Lord Boswell of Aynho]

My Lords, I am grateful for the opportunity to participate briefly in the debate in my capacity as the chairman of the European Union Select Committee of this House. It is a privilege for me to follow the noble Lord, Lord Hannay of Chiswick, and thank him for his continuing expertise and the input he has made to the work of the European Union Select Committee, specifically in his chairing of its home affairs sub-committee. However, that expression of thanks and praise is tinged with a degree of sadness as the time has come for him to step down from both committees. We shall miss him hugely, as will the House. This work necessitates not only massive and in-depth expertise across the whole range of matters European but a readiness to be tireless and, if I may say so, appropriately tiresome, in holding the Government to account in what they do, and is an example to us all of the kind of work that this House does very well.

Also on the positive side, I commend the Minister—the noble Lord, Lord Faulks—for delivering on the Government’s commitment to debate on request an annual report on Protocols 19 and 21. It is entirely sensible that we should roll this in with the separate debate on the continuing saga of the Protocol 36 negotiations. I feel that this is a little bit like a piece of classical music with two themes inextricably intertwined in this debate. I fear that my remarks will tend to flit from one to t’other.

I also find myself in an interesting and rather European position, as it were, as the centre of the troika between the previous speaker, the noble Lord, Lord Hannay, and the noble Baroness, Lady Corston, who will speak after me, as they chair the two relevant sub-committees of our European Union Select Committee, and I find myself in the middle. I would not for a moment claim that I have or wish to replicate their expertise because they express remarkably intense and effective scrutiny. One has offered and one will, I am sure, offer the technical assessments of their respective committees. They will highlight, for example, not just the historical record of the Protocol 36 saga, as I have called it, but the difficulties with post-adoption negotiations—for example, in relation to Europol and Eurojust, the EPPO and other matters that may arise down the track.

If we look at what happens in Europe, it is interesting and appropriate to record—the Minister has acknowledged this—that Her Majesty’s Government consistently opt into a majority of new proposals roughly in the proportion of 2:1, as working rule. It is fair to assume that neither myself in a personal capacity nor my committee generally would dissent from participation in those proposals. However one defines—if one can find a working definition to meet the wishes of the noble Lord, Lord Teverson—what is or is not the national interest, we are at least pleased that the Government are proceeding on that basis.

We will continue to assess any new proposals and policy matters that arise in the area of security, freedom and justice on their own merits and in relation to the national interest. We can hardly ask the Government to do otherwise. We would ask them to commit themselves to continuing to take into account the views of our committee wherever possible. It happens—it is an unexpressed factor in this debate—that we have developed over the course of the past 12 months, in the light of the Protocol 36 issue, a habit of consultation with Ministers and the troika, if I may call it that for shorthand, in relation to the handling of these issues. We are getting a better understanding but, frankly, as the noble Lord, Lord Hannay, revealed, the old Adam comes out from time to time and we cannot say that the work has been concluded yet, because things go wrong.

In that light, looking at the historical record, I have no wish to rake over the coals but I should like the two Ministers to consider saying a little more on the record about why the Government did not consult thoroughly and properly with the European Union Committee of this House, as had been agreed in relation to Protocol 36 issues, on the decision on the block opt-out. We had, in effect, a last-minute presentation of a fait accompli, which was not the right way to do this business.

As the noble Lord, Lord Hannay, has explained to the House, there will be continuing doubts in my committee as to the precise range of measures to be opted back in to. However, if we take the 35 measures in which the Government have indicated an interest, we can at least say that it is broadly the view of my colleagues that those measures are in the national interest. As we are actually doing them, it is sensible that we continue to do them and, as a number of noble Lords have said, particularly in relation to criminal justice, do them without any discontinuity as we reach the deadline.

It is fair to report to the House that there is a continuing contradiction—or I could call it a difference of emphasis—in the Government’s position on some of these issues. On the one hand, they express a continuing reluctance, as it were on principle, to consider as being appropriate our accession to the jurisdiction of the European Court of Justice on particular issues—their bias is against it. At the same time, on the majority of measures for very good reasons, including the national interest, the Government opt into justice and home affairs policies related to it. That, of course, immediately represents acceptance of the court’s jurisdiction in relation to those matters.

As regards future negotiations, Ministers are well aware, perhaps painfully aware, that a number of ongoing and very technical dossiers are to be negotiated, with a view to opting in, following adoption of the measures. The Minister, the noble Lord, Lord Taylor of Holbeach, may wish to respond later a little more on the Government’s thoughts on how successful the negotiations are likely to be. It would useful if he could inform us.

In relation to the block opt-out, nobody here is asking for a detailed account of any negotiation or indeed of the negotiating position, because that would be an entirely unreasonable position for us to take, including the disclosure of the stance of other members of the Council. However, I put it to the House that there must be some middle-way solution between complete transparency of action and—what we are sometimes faced with—either a last-minute announcement or the emphatic silence that greets us when an update on progress is requested by members of the committee.

That is a challenge for the House, for Ministers and for us as a committee. However, if some reasonable information can be shared—the noble Lord, Lord Faulks, who has already spoken to us has indicated some of it—and the Government can level with Members of this House and of the other place and with the general public at large, that may be positive for the process because it may encourage a measure of participation in, understanding of and interest in the matters being negotiated. Having said that, as has already been indicated, those matters are, frankly, desperately technical. Even getting them understood around Parliament would be a start but it would not be a finish. However, the more that can be done, the better.

We as a committee are not going to seek a running commentary on negotiations. The Minister, the noble Lord, Lord Taylor of Holbeach, wrote to us in January and we have allowed a certain franchise before we have come back to him. We do not want a running commentary but it would be helpful to have information as and when it is available and appropriate to let us share it.

In concluding my remarks, I once again endorse the need for a sensible dialogue to take place as a matter of routine between government and the European Scrutiny Committee. I often say—and I am anxious that we should not compromise the position—that we are scrutineers, not the Executive: we do not join in the Government’s decisions. However, the habit of collaboration and co-operation is to be encouraged and, if it is sensibly and sensitively handled, it will be of mutual benefit.