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

Lord Davies of Stamford Excerpts

Monday 17th November 2014 Lords Chamber

Frankly, I am amazed that there is not more concern about this issue. Yes, it is our duty to protect British citizens against terrorism. That is true, but it is also our duty to ensure that British citizens have fair justice. I am afraid to say that I am not so far convinced that the proposals that the Government have brought forward actually achieve that. I shall listen to my noble friend’s arguments but I remain profoundly sceptical about and worried by these proposals.

[Lord Davies of Stamford (Lab)]

My Lords, I listened with great attention, as I always do, to the criticisms made by the noble Lord, Lord Lamont, of the 35 measures and the European arrest warrant. I thought that his points made no sense at all. His principal objection to the European arrest warrant seemed to be that it involved the jurisdiction of the ECJ, but then a few sentences later, having complained about the ECJ, he started complaining about the British courts and said that they were too restrictive in applying rights. Well, if you did not have the ECJ you would presumably be entirely and exclusively at the mercy of British justice. He does not like British justice, he does not like the ECJ—what exactly does he like?

The noble Lord then complained about the fact that we did not have exactly the same procedures for handling criminal cases in all the member states of the European Union. Surely if he wants some standardisation of procedures, which is a perfectly reasonable thing to demand, what he wants is indeed a treaty and what he wants to do is to support the Commission with its road map on procedural rights, which I hope he is aware of, which takes us in exactly that direction. But presumably he would not support that proposal because it is European. It is quite clear that his objection, as is always the objection of Eurosceptics to practical, sensible measures in this field, is entirely theological. One cannot do anything about that kind of impenetrable theology but one can at least try to make sure that as a House, as a whole, we look at the national interest in a cool, calm and logical fashion. That attitude has been notably missing from this whole debate over the past two or three years.

I have very little sympathy for the Government over this. The Government last week tried to make a fool of the House of Commons, which is a very undesirable thing for a Government to try to do. They ended up making fools of themselves and no doubt they are very conscious of that at the moment. The way that they have treated this House, as the noble Lord, Lord Boswell, so lucidly set out, is pretty close to duplicitous at times. It is very worrying indeed that we should be treated in that fashion.

The whole thing is completely unnecessary and pointless. It was quite obvious from the beginning that the Government were going to get parliamentary approval for these measures. It was equally quite obvious from the beginning that there was no need whatever, on substance, to opt out of anything at all. There is no objection in terms of national interest—nor has anybody ever suggested it from the government Benches—to any of the measures that we are not opting back in to. They were all secondary, technical measures or else they were redundant or obsolete. They could have been left quite happily and quite safely to wither on the vine. If we had wanted to make some changes in them, we could have negotiated changes.

Where we have in fact gone forward with these 35 measures, we have succeeded very well, I think. I congratulate the Government on getting some practical improvements—for example, in the area of proportionality in the case of the European arrest warrant—and I gather that we have persuaded the Poles, who were issuing warrants far too lightly and easily, to desist from that. That is the way forward, of course, in the European Union generally: quiet, sensible and constructive diplomacy. That works and confrontation does not.

I have to say to the noble Lord, Lord Lamont, and others who think it will be possible to negotiate a treaty between the European Union and the United Kingdom to replace the 35 measures, who is to say that the European Union would agree to anything of the kind? There are very considerable constitutional difficulties about the European Union. It is not provided for in the treaties at all—having a treaty with a member state of itself. It is a very peculiar philosophical and constitutional concept indeed. I do not think it is a precedent that the Union would wish to extend. It certainly has no reason to do so at the present time. Its obvious answer would be, “If the United Kingdom has come out with all these bizarre new proposals and suggestions and special requests, we will have to look at them all together. Since we are going to have a renegotiation by 2017, maybe we will look at it then in that context”. Some of our partners would not want to be helpful at all. As the House knows, Spain, until 10 days ago, was actually objecting to our opting back in. No doubt it would have come to us and said, “We would like a concession on Gibraltar or something in return for our support”. We would have ended up in a complete mare’s nest going down that path. Thank goodness that we did not. It would have been extremely dangerous.