EU: Justice and Home Affairs

Lord Hannay of Chiswick Excerpts

Wednesday 22nd June 2011 Grand Committee

[Lord Hannay of Chiswick]

My Lords, I should preface my remarks by saying that I will concentrate mainly on the matters relevant to the Home Affairs Sub-Committee, which I chair. The noble Lord, Lord Bowness, will be covering the Justice and Institutions Sub-Committee, because we are in a kind of Siamese-twin situation where opt-in issues sometimes fall on his side and sometimes on mine. We do not have any disagreements about which side they fall on, but it sometimes leads to confusion in the audience as to why we have two sub-committees dealing with rather similar material.

I am most grateful to the Home Office for providing the report we are debating today and to the Minister for having introduced the report and the Motion so clearly and comprehensively at a very early date after her assumption of ministerial responsibilities. Both the report and this debate are firsts in the new post-Lisbon process of strengthening transparency and accountability of the Executive to Parliament in a complex area of EU policy-making. As such, they are welcome and will need to be repeated on an annual basis if we are to make a useful reality of these strengthened scrutiny procedures.

As is so often the case with the European Union, it is only too easy to be repelled by the complicated lexicon of acronyms and cross-references to treaty provisions. To assume that this is all about process and not about substance would be a mistake. Many of the measures covered by the report have an important impact on the daily lives and on the security of ordinary citizens. It really does matter, therefore, that the Government get their opt-in and opt-out decisions right and that both Houses of Parliament actively participate in the shaping of those decisions. We must try not to lose sight of the wood as we take a closer look at the individual trees of which it is composed.

We are debating a report which covers the period between 1 December 2009, when the Lisbon treaty entered into force, and 30 November 2010; that is to say that we are already six months out of date, a point made by the noble Baroness, Lady Falkner. I hope that next year we will hold this debate sooner after the tabling of the Home Office’s annual report, ideally within two months of its publication. It will be useful too—perhaps the Minister could say something about this—if the report’s annexe, not the report itself, could be issued in an up-to-date form every six months. That would help the committees to follow the process and to see the wood rather than the trees, if that were possible. I do not think it would put an unreasonable burden on the department; I hope not.

As to the categorisation of the views of this House in the present report, this does leave something to be desired. It said that the House of Lords agreed with the IT management agency opt-in, No. 13. That is only part of the story. We agreed with the decision but not with the way it was done—by relying on an existing opt-in to a different proposal under a different treaty in 2009. I would not ask the Minister to respond to this point; it has been the subject of an enormous amount of correspondence between my sub-committee and the Home Office, at which point we rather decided to accept that we were not going to agree about it. However, we have a serious point which is not reflected in the report. Perhaps a little more care could be taken on that.

As to decision No. 22—on intra-corporate transfers, to which the Minister referred—the note in the report states: “HoL: N/A”. I am not sure what that is intended to signify. In fact, my sub-committee registered our disagreement with the Government’s decision not to opt in to the proposal—I shall not go into all the reasons for it because they are set out in correspondence—and we remain unconvinced by the justifications for opting out provided by the Minister’s colleague responsible for immigration. We believe that the Government should have opted in, but the rather narrower point that I am making here is that the Minister did slightly less than justice to the heroic struggle between us when the report was written. Perhaps in future something slightly more transparent might emerge.

On the process of debating opt-in or opt-out decisions, we are grateful that time was made by the Government in this House to debate the asylum directive in January 2010 and the PNR directive in March 2011, and we welcome the Government’s decision to opt in to the latter. We trust that the Government will maintain that unblemished record for timely debates in the future. We are glad that the Minister for Europe has confirmed to the Commons European Scrutiny Committee that where the Government are considering a post-adoption opt-in—to which the Minister referred—under Article 4 of the protocol, this will be subject to enhanced scrutiny arrangements. Perhaps she will confirm that our committee will be given the time it needs to give its views and, if necessary, to hold a debate on this category of opt-in given that no three-month time limit applies in the case of these decisions—that is to say, they can happen just like that. If the Home Office were to provide a little time for the committees to look at these decisions and if necessary to call for a debate, which is likely to be very seldom, it would be a great help.

As to the draft code of practice, which has been referred to and which is designed to govern the parliamentary and executive handling of these matters, can the Minister confirm that the Council’s secretariat in Brussels has now agreed to a single invariable system for dating the beginning of the three-month opt-in period; namely, that this runs from the date on which the last language translation is published by the Council’s secretariat? Does the Minister agree that there are now no outstanding code-of-practice issues between this House and departments? Therefore the code could surely now be formally agreed between us. The sooner that is the case, the better, because everyone will then know—both the Government and the House—what rules govern this rather complex area.

I have two additional points relating to agreements with third countries. How can it be consistent with the need for legal certainty for the Government to assert, as they do, that the relevant measure does not apply to the UK, when there is nothing in it to suggest that it does not apply equally to all 27 member states? Issues relating to this are, we understand, still being considered with the Commons scrutiny committee. I hope that the Minister will have another look at this. It seems potentially a little unsatisfactory and fragile.

The second point is on the Government’s decision not to participate in the negotiation of a readmission agreement with Belarus. In view of the unsatisfactory state of politics in that country, and of the economic pressure on its citizens to migrate, it was a mistake by us not to participate in the negotiations. We expressed that view in correspondence, and we still hope that a late-stage opt-in will be considered seriously when the agreement is being negotiated—without our influencing it in any way, unfortunately. That does not mean, as was the case with the human trafficking directive, that it would not necessarily be in our national interest to opt in.

I apologise for speaking at some length and in such detail, but the strengthened scrutiny process in which we are participating has no sense or usefulness if it is not taken seriously. I am struck by how closely we now work with our EU partners in this field despite being outside Schengen, and by how many measures we decide to opt into. The figures already given in this debate demonstrate that. The coalition Government are to be congratulated on their pragmatism and open-mindedness. It is surely clearer than ever that, in this highly sensitive area, considerations of interdependence and shared vulnerability are drawing all member states closer together.

--- Later in debate ---

[Baroness Browning]

I am very grateful. I was about to move on to that. I reassure the noble Lord that, as my right honourable friend David Lidington said, we will have a vote in both Houses if the Government decide to opt in under Protocol 21 or opt out under Protocol 19. That commitment was made by the Minister in the other place. It still very much holds good and is the Government’s declared policy. I hope that that reassures him on that point.

I think that the noble Lord also raised the question of a referendum—

[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.