Justice and Home Affairs: United Kingdom Opt-Outs

Lord Bowness Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Bowness (Con)]

My Lords, as we continue to debate this important matter it becomes for me more and more like one of those television series billed as new but which are in fact repeats of previous programmes with minor updates, which certainly bring us no closer to a finale.

My noble friend the Minister set out the present position for the benefit of the House. I am sure that we are all grateful to him for that. I will not repeat the arguments made by my noble friend Lord Stoneham of Droxford and the noble Baroness, Lady Prashar, who, as the respective chairmen of the relevant EU sub-committees, gave your Lordships a clear exposition of the current situation. Having been involved with the first report, it is enough for me to say that I share their concerns without exception. I also share the concerns of the noble Lord, Lord Boswell, about the failure to provide an impact assessment in respect of those measures that the Government do not wish to join.

Concerns about the timetable are as relevant today as they were when they were expressed in the first report of your Lordships’ committee in 2013. I have always believed that ensuring continuity in the application of those measures is of vital importance and that exercising the block opt-out was unwise given that there has never been any suggestion that the measures into which we do not want to opt back have any serious or detrimental effects on the United Kingdom. To have done so was of benefit only to those who wished to strike a pose and say, as they have said, that they had brought some power back from Brussels. It is wholly illusory, and our political effort and capital might have been better spent on some of the more important issues which face the European Union and its member states.

In May of this year, when the matter was last discussed, I said that I had a feeling of apprehension, if not depression. It may be something to do with the state of my health but that feeling continues. Why is that? It is because we have still not concluded our discussions in Brussels which would enable us to put a final package before Parliament. ln the other place, there are demands for separate consideration to be given to the European arrest warrant. We have moved from the position adopted in our debate in May, when my noble friend Lord Taylor of Holbeach expressed the hope that the second and final vote could be taken prior to this impending Summer Recess. However, in fairness, he qualified his hope—no doubt, in the light of experience—by adding that it would in any event take place,

“well ahead of 1 December”.—[Official Report, 8/5/14; col. 1621.]

Last Thursday in another place, my right honourable friend the Justice Secretary said at col. 548 of Commons Hansard that,

“we still have to complete some areas of discussion in the Council, so I cannot say that we have finally resolved all the issues in Brussels”.

He added, at col. 549:

“We still have work to do in … Brussels and in both Houses of Parliament”.—[Official Report, Commons, 10/7/14; col. 549.]

Will my noble friend tell us what these issues are, what the work is, and how long it is proposed that it should take?

By my calculations, which may not be wholly reliable, there are some 136 days until 30 November, out of which we take some 70 days of parliamentary recess, leaving us 66 days to bring this to a conclusion in Brussels, have a proper debate in both Houses and a vote. We are taking ourselves to the brink over some very important matters.

In conclusion, we cannot undo the opt-out and the Government will have to live with any consequences which may flow from it but I hope that we can at least learn from this experience—namely, that negotiations in Europe take time and you cannot take other institutions and states for granted as they, too, have positions and concerns. In the light of this, I trust that if my noble friends are tempted to bring the European Union (Referendum) Bill back to this House, they will bear in mind the extreme danger of trying to put detailed negotiations, the details of which we do not know, in a straitjacket by imposing a referendum date of 2017. That exercise will make this opt-out performance, which has taken nearly two years since the Prime Minister first announced it somewhere in Brazil and is not yet completed, look like an afternoon tea party.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I thank the noble Lord, Lord Kennedy of Southwark, for the kindnesses he has shown, particularly in his last remarks. He made a number of comments about the current political scene. I have very long memories of this issue in politics, so I do not think that it is necessarily very productive to go down other, party-political routes. In fact, we have a tradition in this House of trying to deal with these matters on their merits. I think that the way we handle these debates is very much to our credit.

I thank all noble Lords who have spoken. A lot of points have been raised, which is hardly surprising, as this is a broad subject—even though it is confined to the JHA opt-out matters, there is a lot of detail. I am going to do my best to reply to points that have been raised, but I hope that noble Lords will be happy if I write one of my usual commentaries on the debate. I find that a very useful way of informing the House. Indeed, in considering this matter, I know that it is nice to have things on the record, but it might be something for those who keep the official records to make a note of letters sent by Ministers, or at least to make them available on the website and not just in the Library, so that noble Lords can be aware of those things for the future. I suggest that as a modernising idea, as it is frequently the case that Ministers need to write in order to provide a proper answer that cannot be given in a debate.

I am grateful to the noble Lord, Lord Boswell, for his chairmanship of the Select Committee and the leadership that he shows on these issues in the House. The noble Lords, Lord Judd and Lord Kennedy of Southwark, both raised the question of transitional arrangements with the Commission and what is going to happen on 1 December. It is not the intention to have a gap between the date on which the opt-in will take effect and the point at which the UK can rejoin the measures. We place a great deal of importance on the issue and believe that it is in everyone’s interest to try to eliminate any operational gap between our opt-out taking effect and our continued participation in the measures that we formally apply to rejoin. If it is necessary to use transitional measures, we consider that transitional arrangements could be used to preserve the legal effects of measures that the Government have said they will rejoin, where there is a short operational gap.

The noble Lords, Lord Bowness and Lord Foulkes, asked when we think that the negotiations will conclude. I think that that is a matter that all noble Lords are aware of—that is, we have made good progress on these negotiations. An in-principle agreement has been reached with the Commission on a package of 35 measures. I say, “a package” because it is not the original package, as was rightly pointed out by the noble Lord, Lord Hannay. However, negotiations with member states are continuing and we are confident of concluding a deal ahead of 1 September so that this operational gap will not occur.

[Lord Bowness]

My Lords, I thank my noble friend for giving way and I apologise for being troublesome. While he is dealing with this point, perhaps he could tell the House—and I understand the difficulty with negotiations—whether in fact discussions are taking place about transitional arrangements in parallel with the main negotiations. Were we to get much closer to 30 November, it would then be rather late to start putting those transitional arrangements together.

[Lord Taylor of Holbeach]

This is a wise Government and all these matters are considered. That is not our ambition. Our ambition is to achieve agreement by that time. There will be an update. We have updated Parliament up to now and we will continue to give Parliament opportunities for scrutiny of the process in future.

The noble Lord, Lord Foulkes, again raised the question of whether this was part of the Prime Minister’s promise to start repatriating powers from the EU. It is a decision that flows from the existing treaty and its protocols that were set in place by the Lisbon treaty, negotiated by the previous Government. If we had done nothing with regard to the opt-out, the default position was that the UK would become subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice. The decision to opt out means that a much smaller set of measures will be subject to ECJ jurisdiction and Commission enforcement powers. We believe that that is what the British public would expect us to do, given that the negotiations conducted by the previous Government led to Protocol 36.

The noble Baroness, Lady Prashar, whom I congratulate on stepping into the shoes of the noble Lord, Lord Hannay, asked whether there was a list of measures subject to the opt-out. We are currently working on producing a full consolidated list of measures that the Government consider subject to the opt-out, and we will provide that shortly.

My noble friend Lord Bowness asked: if the majority of these measures are defunct, in no way harmful to the UK or positive, why bother exercising the opt-out at all? I hope that I have given him some idea of why we thought it was important to deal with this. The ECJ should not have the final say over matters concerning substantive criminal law or our international relations in matters like extradition. That is why the Government will not rejoin over 20 minimum-standards measures on sensitive matters such as racism and xenophobia, or the EU/US extradition agreement. I am clear that our Parliament should have the final say over our laws on these matters, and the Government should be able to renegotiate bilateral arrangements as we think fit.

A number of noble Lords asked why the Government had produced an impact assessment for only 35 measures, not for the full list. The Government have been consistently clear that we will provide Parliament with impact assessments on those measures that we will seek to rejoin. I remember saying that in previous debates. Command Paper 8897 is the fulfilment of that commitment. The UK will not be bound by the rest of the measures from 1 December, and there is therefore no need for an impact assessment.

There was some consideration of the European arrest warrant. As noble Lords will know, we have decided to opt back into the European arrest warrant. We have listened to our EU partners and the UK law enforcement and prosecution agencies, as well as the view of Parliament and indeed our European committees, on this. Critics of the EAW have come to a balanced conclusion on how the EAW can be improved and retain its obvious practical and law enforcement benefits but provide better safeguards for people subject to EAW law. We are satisfied that the reforms made to the EAW will help to address these concerns. My noble friend Lord Stoneham asked whether EAW amendments to domestic law are compliant with EU law. We are confident that they are compliant and are happy to provide more detail by way of the letter I will be sending. We will be able to elaborate and I hope that that will be to the benefit of noble Lords generally.

My noble friend Lord Sharkey said that many of the measures that the Government want to withdraw are more likely to be susceptible to negative ECJ judgments. As I have said throughout this process, the Government are concerned about the risk that the court could make unexpected adverse decisions on the interpretation of pre-Lisbon measures. Given the prospect of an unexpected judgment, and concerns about the drafting of measures and the difficulty of altering EU legislation, we believe that minimising the possibility of an adverse judgment is a sensible and pragmatic approach. It is only correct that the Government consider carefully whether to accept the formal jurisdiction of the ECJ before seeking to rejoin measures. We accept that there is always a risk attached in terms of ECJ jurisdiction if we decide to participate. However, in certain cases it will be in the national interest for the UK to participate and the Government will accept that risk, given the wider benefits of the instrument in question. That is the judgment that rightly rests with the Government in these cases.

My noble friend Lord Sharkey also asked about the special intervention units and whether we wish to rejoin in order to maintain participation in an operational police network at the EU level, called Atlas. We now know that we can continue working through Atlas even if we do not participate in the special interventions unit. This has been confirmed by the Commission, so we will lose nothing by not joining that measure. My noble friend Lord Bridgeman was concerned about whether the UK would rejoin Europol and whether it could force national police forces to act. We confirm that Europol will not be able to force national police forces to act.

A number of noble Lords, including my noble friends Lord Sharkey and Lord Stoneham of Droxford, the noble Baroness, Lady Prashar, and the noble Lord, Lord Kennedy of Southwark, asked what steps were taken at EU level to resolve the problems with the probation measure and what is the timetable for our reconsideration of this? This is quite a complex issue but I think that I have time to address it, because noble Lords will be interested. As the Government set out, it is not in the national interest to rejoin the probation measure at this stage. It is unclear how it would work in practice and we have no evidence to demonstrate that the benefits to the UK outweigh its risks.

We did, indeed, discuss these issues with the Commission. However, we were not able to resolve them. One key issue is that only 14 member states have so far implemented it—and to date it has never been used within those 14 member states. Therefore, we have no practical illustrations of how it would work. We were unable to determine the likely impact of rejoining the measure. In due course, once the probation measure has been used and implemented more widely, and there is sufficient evidence to analyse it, we will reconsider participation after making a full assessment of its impact. I will keep noble Lords informed on progress on that particular measure.

My noble friend Lord Bowness asked about transitional measures and I sought to answer him. I have had a supplementary note to the effect that, in case transitional measures are needed, the matter is being considered in a working group in Brussels; this is parallel to the wider negotiations. Our aspirations are that these transitional measures will not be necessary, but they are being discussed.

That concludes my contribution to the debate today. I thank noble Lords for again presenting the views of the European Union Committee and of this House on an important subject. I will be writing a commentary and look forward to continuing dialogue on these issues. I understand that we have a debate on Tuesday on aspects of the Stockholm agreement. This is not going away. It is a live issue as far as I am concerned, as I am sure it is for other noble Lords.