EU Police and Criminal Justice Measures: EUC Reports

Lord Davies of Stamford Excerpts

Thursday 23rd January 2014 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, this is a matter the importance of which goes far beyond the individual sub-committees which have been concerned with these reports, so without any hesitation I feel it right to intervene in this particular debate. I am particularly glad to be here today because I heard in the speech of the noble Lord, Lord Hannay, what I think was the most devastating account of bad government that I have heard in all my 27 years of service in this place and in the other Chamber. I realise that those 27 years only just pass the halfway point of the career of the noble Lord, Lord Jopling.

This is an occasion when the Government would be well advised to listen to what is being said about them. I am sure that the Minister will have listened because I know him very well and he is the sort of person who believes strongly in listening to Parliament and that it is essential for Ministers to do that carefully. I also think I know him well enough to know that he is more than capable when necessary of speaking extremely frankly and effectively in private to his ministerial colleagues. He may well feel the need to do that after this afternoon’s debate. What has been quite extraordinary this afternoon is the complete consensus among all speakers from all sides of the House about the gravity of the situation that has been revealed by the Select Committee’s reports.

That consensus was not in any way detracted from by the noble Viscount, Lord Eccles, who on the whole is always very keen to find a way, if he possibly can, of defending the Government. He made a number of interesting geopolitical observations but he could not find a single defence of the way in which the Government have acted in this matter.

It has not been quoted already so I will read to the House one part of the committee’s criticisms of the way in which the Government have proceeded. I think the whole House will agree that this is parliamentary language, this is measured language, but it is more than justified language. Paragraph 106 of the report dated last October says:

“In our view, this lack of analytical rigour and clarity regarding evidence drawn upon is regrettable. Despite the length of its gestation, Command Paper 8671 showed signs of having been hastily put together. We are disappointed that the Command Paper presented both the 35 measures which the Government intend to rejoin and the 95 they do not intend to rejoin in an unconvincing manner. We regret that the grounds on which the Government made their selection of measures to seek to rejoin were not set out persuasively in the EMs”.

It is very unusual that a committee expresses itself quite as strongly as that. It is quite evident that the Government have done a thoroughly shoddy piece of work.

It is quite extraordinary that there was no consultation or impact assessment on this occasion. Surely consultation and impact assessments are now routinely regarded as essential prerequisites for good legislation in all sophisticated democratic countries. That is true, I am sure, of most if not all of our partners in the EU; it is certainly true in the United States; it is certainly true in the European Commission in its legislative role before it prepares legislative directives. One has to wonder why the Government of this country on this occasion decided simply that they were not required or could be dispensed with.

It is quite clear that there was simply no analysis of the national interest before these decisions were taken about opting out and then opting back in. This whole expensive farce—expensive in terms of not merely the cost over several years of all the negotiations that have been made necessary by this extraordinary decision but the real cost of the uncertainties created, the gaps that occur in capability or in co-operation as we have opted out of something and have not got back a suitable alternative—was gone into in a mood of complete and utter frivolity, without any sense at all of how the national interest was being impacted.

If one reads the individual government excuses for the decisions they have taken to opt out of individual measures, there is not a single occasion where there is an actual concrete argument stating that a specific national interest would be negatively impacted if we remained committed to the original measures in the justice and home affairs deal—not a single one. What actually happens is that on every occasion the Government say either, “Well, we are doing it by some other means”, or, “It does not matter too much”, or, “Maybe there is another way of achieving the same effect if we really try hard”.

I will give the House a flavour of some of that. Under the minimum standard measures, the excuse is that it, “adds little practical value”. The Government do not deny that there may be some practical value. There is no suggestion for a moment that there is any negative value. There is no suggestion that it would be against the national interest to opt in to those measures, but the best the Government can come up with is, “adds little practical value”.

Then, let us take the three Europol council decisions. Following the decision to opt back in to Europol, there was no decision to opt back in to the subsequent European Council decisions. The Government state in their defence:

“The UK has already issued the declaration as required by Article 2 of this measure and has therefore already designated Europol as the central office for combating euro counterfeiting. The measure does not set out any ongoing requirements following the issue of this declaration”.

In other words, there is no cost and no gain. So why waste time? Why waste money? Why waste political good will? Why waste, for that matter, the time of this House, which is just a very small part in this whole sorry exercise? There is no reason whatever. The Government say that the second council decision following the Europol opt-in measure has,

“no material impact on UK participation”

in Europol—again, a complete negative. So it goes on.

Another example, which has already been mentioned, is the racism and xenophobia directive. We were ahead of the game there: I think we may have been the first country to introduce a race relations Act and to subsequently introduce legislation in this country which made an offence of hate crimes. However, we have decided to opt out for the reason that, as the Government put it,

“the UK already meets the requirements of this measure in domestic legislation”.

What an awful pity to take our name away from a convention simply because we are already implementing it. Are we going to do that throughout the whole range of international treaties, so that where we are actually implementing something we take our name off the treaty? What an extraordinary idea. So the sad story proceeds.

What do the Government have to say about the European judicial network? Why do we have to opt out of that? What is the burning national interest that requires us to make an enormous fussation over it? The Government’s answer is that,

“it may be possible to maintain those contacts without formally participating in this Council Decision”.

Why “may” be possible? Why replace the indicative with the subjunctive? Why create an uncertainty where there is now, or could otherwise be, a certainty? It does not make sense at all. Why pay a price for a negative gain? The noble Lord who is sitting on the Front Bench is a logical man and must find it difficult to explain conduct of that kind.

Driving disqualifications have already been mentioned. Here again, it is quite extraordinary. We have got ourselves in a situation where we have said we are going to renegotiate a bilateral deal with the Republic of Ireland, which takes time and uses good will. It is actually a farce, because everybody knows it would be much easier to remain party to the original directive in the first place. If we need to protect British subjects from drivers who have been disqualified in the Republic of Ireland, why do we not need to protect British subjects and residents of this country from drivers who may have been disqualified in France, Belgium, Germany, Spain or any of the other countries from which millions of drivers come here through the Eurotunnel and on the ferries? It does not make the slightest sense.

If anybody had any doubt about the Government’s lack of good faith—I use that serious term advisedly—in this whole matter or that the Government have never actually wanted to look at or make a proper analysis of the national interest before reaching decisions in this area, let me provide absolutely conclusive evidence. The Government have been engaged in an exercise which has been widely promoted as being a great attempt definitively to decide what is the national interest in our relationship with the European Union: where we should better do things on our own and where we can better achieve our national objectives jointly by taking part in EU initiatives or by becoming a party to EU directives. That is called a balance of competences exercise and everybody in this House is extremely familiar with it. The Government, knowing that this particular decision was coming up, deliberately scheduled the examination of the criminal justice and policing aspects of the balance of competences review to start in spring 2014 and to come to an end only in the autumn of 2014—obviously far too late to influence decisions about opting in and opting out over justice and home affairs.

What an extraordinary thing to do. Is that because the Government thought that the whole exercise was a waste of time? Is it because the Government thought that it was not going to be a proper analysis of the national interest and because it, too, was a farce? Or is it because the Government thought that it would be a genuine analysis of the national interest and that it might be embarrassing to have it come out in time to influence a decision on opting in and opting out, because it might well say, “Don’t bother to opt out. There is no reason to opt out; it is not in the national interest to opt out; you’re much better staying 100% in so that you have maximum influence within the institutions and the decision-making structures”? Or is it because it was completely irrelevant and the Government were not interested in the national interest? I feel that that is the only conclusion that we can rationally come to in this House today. All the Government were interested in doing was buying off their Eurosceptics. This has been a party political issue for the Government from day one—100% party political. All they have been concerned about is the minimum price to get the Eurosceptics off their back and how much national interest had to be sacrificed in order to satisfy them. That is what it has been about, and it is about time that somebody honestly faced the facts and was prepared to say so.

--- Later in debate ---

[Lord Taylor of Holbeach]

As the noble Lord knows, the Government are exercising an opt-out that was provided for by negotiations by a previous Government. Noble Lords will expect the Government to exercise their discretion in this matter and to seek the endorsement of Parliament, as they have done on this occasion. I make no apology to the noble Lord for the decision that this Government have made. It was a decision that was anticipated by the previous Government in their negotiations.

As I was saying, before I return to the points raised, I confirm that there will be another vote on the package of measures that we will apply to rejoin. It is important that Parliament is given the opportunity to scrutinise this matter fully. I am very happy to commit myself to replying for the Government during that debate later this year.

I start by responding to some of the points of the noble Lord, Lord Hannay, in his excellent speech. I could not agree with all that he was saying about the Government’s performance or decision-making or role, but he set out a number of important points that have helped to guide this debate and I am happy to reply to them.

The noble Lord, Lord Hannay, and my noble friend Lord Sharkey addressed the point of whether there are measures that are detrimental to the UK and the UK’s national interest. The noble Lord, Lord Davies of Stamford, asked if this were the case. That is one way to assess these measures. However, is not the way in which the Government have assessed them. The Government have looked at how each measure contributes to public safety and security, whether practical co-operation is underpinned by the measure and whether there would be detrimental impact on such co-operation if pursued by other mechanisms. We have considered the impact that the measure has on civil rights and liberties. We believe that the 35 measures that we are seeking to rejoin meet these criteria.

The noble Lord and the noble and learned Lord, Lord Lloyd, asked why the Government have opted in to post-Lisbon measures if we have concerns about European Court of Justice jurisdiction. The Government consider that there is always a risk attached in terms of European Court of Justice jurisdiction. All Governments have faced this when we decide to participate in measures—pre-Lisbon or post-Lisbon. However, in certain cases, it will be in the national interest for the UK to participate in these measures, and the Government will accept that risk, given the wider benefits of the instruments in question.

[Lord Davies of Stamford]

The noble Lord keeps on referring to the ECJ as a risk—as a cost, as it were. Is it not the case that it is also in many cases a reassurance and an asset? Over time, is it not the case that we have won far more cases before the ECJ than we have ever lost?

[Lord Taylor of Holbeach]

Of course, but I am just saying that there is an unpredictability about outcomes which all Governments have had to face, and it is a matter that Governments are entitled to weigh in the balance. However, I accept totally that the European Court of Justice also exists to protect things that we consider valuable, too.

The noble Lord, Lord Hannay, and the noble Baroness, Lady Smith, raised the importance of co-operation.

[Lord Taylor of Holbeach]

If I say that the noble Lord makes an academic point, I do not mean to dismiss it, but it is a point which is based on a theoretical view of jurisprudence. As a non-lawyer I would say that the law can have an unpredictability about it even in such well established legal proceedings as we have in this country. Indeed, I am sure that the noble and learned Lord, Lord Lloyd, will agree with that analysis.

I was about to talk about our co-operation with the Republic of Ireland. I felt that the noble Baroness and the noble Lord, Lord Hannay, made an important point. That is why we have engaged constructively with the Northern Ireland Executive and David Ford throughout this process. That is why we continue to hold productive discussions about these matters at all levels.

The noble Lords, Lord Hannay and Lord Davies, and my noble friends Lord Sharkey and Lord Bridgeman also raised the associated Europol measures. I should like to reiterate our support for Europol on its current terms and our intention to rejoin the main Europol measure. However, we do not believe that we need to rejoin the associated measures to do so. Many of the provisions in these measures are legal padding and duplicate the detailed provisions of the main measure. As a result, these measures have no material impact on UK participation or, for that matter, on any other state. They have no impact on our ability to co-operate with others through Europol.

The noble Lord, Hannay, my noble friend Lord Sharkey, and the noble and learned Lord, Lord Lloyd, also identified the probation order as one that we should seek to rejoin. The Government’s position on this measure is set out in full in the response to the committee’s report of 31 December. Only 12 member states have implemented this measure and, to the best of our knowledge, it has never been used. As a result, there is no clear understanding as to how this measure will work in practice and thus very little evidence on which to judge its effectiveness. That is why we are not seeking to rejoin this measure.

The noble Lords, Lord Hannay and Lord Davies, my noble friend Lord Sharkey, the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Smith, raised the issue of the European Judicial Network. As the Government set out in the response to the committee’s report, we believe that Eurojust is more effective than the European Judicial Network at bringing people together and ensuring that the right tools such as joint investigating teams are employed. That is why we are seeking to rejoin Eurojust.

A number of noble Lords raised the racism and xenophobia measures. These have also not been joined or opted out of, and we are not seeking to rejoin. Noble Lords know that this is a highly sensitive area. However, we are clear that our efforts—the noble Lord, Lord Davies, referred to our lead in these matters—to tackle racism and xenophobia do not depend on a measure that adds little practical value. The UK will continue to be bound by the International Covenant on the Elimination of all forms of Racial Discrimination, and the Government will continue to set a national direction and to work at local level with professionals, the voluntary sector and communities to deal with local issues and priorities.

A number of noble Lords mentioned the convention on driving disqualifications. Let me first address the point about ditching the benefits of working with 26 other member states. Currently, this measure only operates between the UK and the Republic of Ireland, so there are no benefits to ditch. However, there are benefits to the bilateral agreement with Ireland. This will allow us to address some of the weakness of the instrument as it currently exists, which we would otherwise be unable to do.

[Lord Davies of Stamford]

I am most grateful to the noble Lord for giving way a second time. In the light of what he says, would it not be sensible to extend the directive to include the continental countries? There is an enormous amount of motor traffic between us and them in both directions. As I said in my speech, if we want to protect people from disqualified drivers in Ireland, why do we not protect our people from disqualified drivers coming from the continent?

[Lord Taylor of Holbeach]

We will be free to do that in the future. I am just reporting the current situation to the House. We have the freedom to do what we will in the future. It is a question of whether we want to be bound by a directive which at the moment is actually not delivering what the noble Lord has suggested.

The noble Lord also asked for an update on our negotiations with the Commission to rejoin measures. I can confirm that these continue at the technical level, and there are a lot of technical discussions involved in these matters. We intend to update Parliament as appropriate, but we must be mindful that this is a negotiation, and thus we cannot prejudice our position in these negotiations. The noble Baroness, Lady Corston, my noble friend Lord Sharkey, the noble Lord, Lord Davies—