EU: Justice and Home Affairs

Lord Bowness Excerpts

Wednesday 22nd June 2011 Grand Committee

[Lord Bowness]

My Lords, like the noble Lord, Lord Hannay, I welcome the publication of this first annual report. I am pleased that the Government have maintained the commitment of their predecessor to continue the practice of publishing such a report.

An interesting aspect of the annual report is in a paragraph on page 2, which bears reading out:

“This Government recognises that cooperation on Justice and Home Affairs can deliver key benefits, helping us to tackle cross border crime and to make it easier for British citizens to do business across borders. Such cooperation can also help enhance the UK’s security”.

I read that out because it is as well that we remind ourselves of that fact, particularly having sat through a number of hours of debate on the European Union Bill when you would have thought, from listening to some contributions, that nothing was further from the truth than that paragraph.

I am pleased to say that Sub-Committee E on Justice and Institutions has agreed on the whole with the Government’s approach to many of the proposals that have come before us; as the noble Lord, Lord Rowlands, has indicated, we see a great number. With regard to the investigation order, I say to the noble Baroness, Lady Falkner, that while that decision was taken to opt in, as reported, it is still a live item of scrutiny before my sub-committee.

On balance, we consider the Government’s and indeed the Commission’s case-by-case approach in the field of criminal justice to be the right one. We have seen the road map, the list of measures set out in that document to safeguard the rights of suspects and defendants involved in criminal proceedings. If those are all enacted, there will undoubtedly be common standards throughout the European Union, which will benefit any British citizen unfortunate enough to be caught up in criminal proceedings elsewhere.

It is worth noting that the approach on criminal justice has been quite different from the approach on civil justice. While the sub-committee has welcomed the vast majority of proposals in connection with criminal justice, we have had severe reservations about the proposals in the area of civil justice. Proposals to try to bring common approaches to matters such as succession and the division of matrimonial properties after divorce and the contract law proposals currently being discussed raise huge issues, which, as the noble Lord, Lord Rowlands, has indicated, bring us into conflict not with our partners, the principles or the objectives—many of the objectives are indisputable and worth while—but with different systems and principles of law, particularly in connection with property. Therefore, we have not been able to be as positive about the proposals that have come forward.

I am pleased to say that the sub-committee has generally found itself in agreement with the coalition Government’s approach. I think that there was only one major item of disagreement, where in the first instance the Government did not wish to opt in to the new legislation on human trafficking. We found that logic very difficult to follow. It is at odds with lots of other decisions to opt in that the Government took quickly. However, I suppose that one must always rejoice in those who repenteth, because eventually the decision to opt in was indeed taken.

Perhaps I may raise two other issues, as they are relevant to this report. I am extremely concerned about the provisions in the EU Bill. One matter is stated in this report, so I consider myself to be in order in mentioning it. I refer to the statement that in no circumstances will the Government consider an opt-in to any proposal for a European prosecutor’s office. I believe that that is a mistake because we do not know what the circumstances will be should the need for a European prosecutor’s office arise. I have no doubt that, were we to find that there had been huge fraud in respect of European Union funds and that some member states were unwilling—whatever the reason—or unable to take action, there would be great demands from the public to know why something was not being done. This is all hypothetical but if it were ruled out altogether and then, in the Bill, made subject not only to an Act of Parliament but to a referendum, that referendum would, I am the first to admit, be almost impossible to win because of the climate of public opinion. It is a pity to have such a statement because, as I said, we do not know where we will be in the future.

Lastly, perhaps I may ask the Minister about the decision that has to be taken by May 2014 in respect of the pre-Lisbon treaty police and criminal justice instruments. At the moment they remain unamended and, unless we opt out, they will become subject to the Commission’s infringement proceedings and the jurisdiction of the European Court of Justice. I am advised that that will be not an item-by-item decision but an all-or-nothing decision. In two Written Questions I have asked how many such instruments there are. In the last Answer I was told that there are somewhere between 80 and 90. The estimate is not mine, because I cannot remember; it is the Government’s estimate given in the reply. The whole thing is subject to consultation with the Commission. I say to the Minister that it is very odd that we as a Government of the United Kingdom cannot say how many instruments are applicable and form part of the law of this land on a given day. I accept that if they are amended between now and the relevant date the number will change, but I think that, first, we should know and produce as quickly as possible a list of the instruments that are effective and in force on a given date so that those who are going to have to consider the ramifications of the decision—it has to be made by May, whatever it may be—know precisely what the topics are. I think that some of them will be of considerable importance.

--- Later in debate ---

[Lord Hannay of Chiswick]

I am sorry to interrupt the noble Baroness and am grateful to her for giving way. As the noble Lord, Lord Pearson, has repeated his view several times in an attempt to get the Minister to state positions prematurely, I want to record that my committee thinks that the Government should take the fullest amount of time necessary to weigh up what will be an extremely important set of decisions. We do not think that the noble Baroness should be rushed into making premature statements of what that decision will be. These are very complex matters that will not be easy to decide, and I do not think that my committee would in any way wish the Minister to be moved towards premature clarification.

[Lord Bowness]

I do not wish to make a habit of interrupting the Minister but perhaps I may repeat the question that I asked earlier. I understand that it takes time for this consideration, but is there any reason why we cannot have a definitive list of the instruments that are in force? I appreciate that the number may vary if they are amended between now and then, but can we have the definitive list of measures? It seems very strange that we are unable to give a positive answer to a Parliamentary Question.

[Baroness Browning]

That is not an unreasonable request and I assure the noble Lord, Lord Bowness, that I shall write to him with the definitive list as soon as I am able to do so.

I want to finish with the points made by the noble Lords, Lord Pearson and Lord Hannay. We are going to consider this matter very carefully, so there will be no rushed decision. However, the commitment to a vote in both Houses remains very firm.