Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Lord Boswell of Aynho Excerpts

Monday 17th November 2014 Lords Chamber

Moved by

[Lord Boswell of Aynho]

At end to insert “, but that this House, having regard to earlier undertakings by Ministers, regrets the inappropriate manner in which the Government have sought parliamentary approval for their application.”

[Lord Boswell of Aynho (Non-Afl)]

My Lords, my amendment to the Motion expresses regret at the inappropriate manner in which the Government have sought parliamentary approval for their application to rejoin the 35 justice and home affairs measures.

Nevertheless, in moving this critical amendment I thank the Minister for his efforts in his introduction to this debate. This is an important issue which deserves calm and considered debate. I trust that the wording of the Motion before us, which the Government amended late last Tuesday—just before we went for a short break—so as to include explicit reference to the 35 measures, along with the Minister’s thoughtful opening, mean that we will not see any repeat of the chaotic and acrimonious scenes that were played out in the House of Commons this time last week.

The amendment, which I have tabled with the support of the European Union Committee, which I chair, refers to undertakings by Ministers. I should begin by putting those before the House. They could hardly have been clearer. On 15 October 2012, the Home Secretary said to the House of Commons:

“I hope that today I have conveyed to the House not only the Government’s full commitment to holding a vote on the 2014 decision in this House and the other place, but the importance that we will accord to Parliament in the process leading up to that vote”.—[Official Report, Commons, 15/10/12; col. 35.]

That was more than two years ago. As recently as 8 May of this year, the noble Lord, Lord Faulks, who is of course in his place, repeated the Home Secretary’s undertaking on the Floor of this House, saying:

“The Government have been clear throughout this process that Parliament will be given a vote on the final list of measures that the Government apply to rejoin, and I am happy to repeat that commitment today”.—[Official Report, 8/5/14; col. 1587.]

It is thus crystal clear that the Government explicitly promised both Houses a vote on the “final list of measures” that the United Kingdom would be rejoining. This is not a recent matter; it has been understood on all sides for more than two years.

I emphasise the words “final list”, not because of pedantry but because the list has changed substantially over time. It is all very well for the Minister to say that we had a debate in July, but at the time of that debate the Government’s list and the Commission’s list were different. Even on 5 August, when the Home Office and the Ministry of Justice wrote to the Committee, they were unable to confirm that their list was final, although they did not at that time “anticipate” any further changes. It was not until 30 October—less than three weeks ago—that Ministers finally wrote to confirm that negotiations with the Commission had finished and that there would be no further changes to the list.

I will make one further observation on the Government’s account of our debate in July, which was given in a letter I received from the Leader of the House earlier today. The Government claim that the debate on the package of measures, which took place in this House on 17 July, was on—and I quote from the Leader’s letter—an “amendable and divisible motion”. I remind Members of the House of the wording of that Motion. It was:

“That this House has considered the United Kingdom’s Justice and Home Affairs Opt-Outs”.

Are the Government really saying that the House, if it wanted to vote, should have voted on the question of whether or not it had considered the opt-out—on an entirely neutral statement of fact debated as last business on a Thursday? Frankly, the Government should really stop digging on this.

--- Later in debate ---

[Lord Faulks]

Clearly, I do not have time to go through the reasons why we have not opted into all the measures that we have not opted into. The presumption is that we opt in to matters that we consider are in our national interest, and we have given reasons for doing that.

Time is running against me. I entirely accept that matters might have been more expeditiously dealt with, but a number of factors caused delays. The Government have been kept very much up to the mark by your Lordships’ House. I hope that with the explanation that I have been able to give and the letter which has so recently been written, the noble Lord, Lord Boswell, will feel inclined to withdraw his amendment to the Motion.

[Lord Boswell of Aynho]

My Lords, at this late hour, perhaps I may briefly distil the debate into three considerations. The first is the remarkable complexity of the issues involved. I noticed that the noble Baroness, Lady Ludford, asked about the 11 into 10 problem with the regulations, which was not answered in detail, although the noble Lord, Lord Sharkey, referred to it. I answer, in no sense criticising anyone nor intending to wind up on all the points that have been made, that that was the framework directive on freezing orders, and the United Kingdom had already opted in to the post-Lisbon amending legislation, so Protocol 36 no longer applied to the framework. Although the Explanatory Note was slightly—I am sure, unintentionally—misleading on the point, it was true that this had to be transposed into national law but, contrary to the Explanatory Note, it was not among the 35 measures under consideration. I mention that because it is a good example of the complexity of all this.

At the same time, alongside all that complexity, there are some simple practical issues. Are we happy for terrorists to cross the Irish land frontier and not have any recourse to extract them? Are we happy for people to commit crimes across Europe of a very unpleasant nature, often co-ordinated as part of a criminal gang, and for us to have no recourse? Are we happy for the judicial systems to work alongside each other? There is complexity and simplicity.

The Minister has acknowledged that there is considerable concern about the handling failure, which was, frankly, the substance of my amendment. He has been both generous in his comments about the scrutiny that we have carried out and modestly contrite about the failures that may have occurred. This is now the moment to move on, particularly in view of the fact that there is strong but not universal support for the substance of the 35 measures.

In concluding, I should like to say how grateful I am for the support and thoughtfulness that have been expressed in the debate. Collectively, we have made our point and, on that basis, I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.