EU Police and Criminal Justice Measures: EUC Reports

Lord Hannay of Chiswick Excerpts

Thursday 23rd January 2014 Lords Chamber

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[Lord Hannay of Chiswick]

That this House takes note of the Reports of the European Union Committee on EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report, Session 2012–13, HL Paper 159) and Follow-up report on EU police and criminal justice measures: The UK’s 2014 opt-out decision (5th Report, Session 2013–14, HL Paper 69).

[Lord Hannay of Chiswick (CB)]

My Lords, the debate today is unusual in that we are debating two reports, not one: the report of 23 April 2013, EU Police and Criminal Justice Measures: The UK’s 2014 Opt-Out Decision, and a follow-up to that report of 31 October 2013.

It is unusual, too, that these reports were prepared not by one sub-committee of your Lordships’ EU Select Committee but two: the Sub-Committee on Justice, Institutions and Consumer Protection, chaired until May 2013 by the noble Lord, Lord Bowness, and since then by the noble Baroness, Lady Corston; and the Sub-Committee on Home Affairs, Health and Education, which I have the honour to chair. We took all our evidence and prepared both our reports at joint meetings. These reports were agreed by consensus. They reflect the views of Members drawn from all the main party groups represented in this House and from these Cross Benches. I pay tribute to the leadership of the noble Lord, Lord Bowness, and the noble Baroness, Lady Corston, who shared the chairing of these meetings with me, and to all members of the sub-committees who put in many long hours of work dealing with extremely complex material. I am delighted to see that the noble Lord, Lord Jopling, who was my predecessor in the chair of the sub-committee, will participate in this debate.

The two reports are unusual for a third reason. Reports from your Lordships’ EU Select Committee are often based on legislative proposals or communications from the Commission but in this case we inquired into a decision to be taken by our own Government: whether or not to trigger before 31 May 2014 the block opt-out from the pre-Lisbon justice and home affairs measures, provided for in Protocol 36 of the Lisbon treaty. Article 10 of Protocol 36 to the EU treaties, which was added by the Lisbon treaty, enables the Government to decide whether the UK should continue to be bound by the approximately 130 police and criminal justice measures adopted before the treaty of Lisbon entered into force or exercise their right to opt out of them all. If the Government do not opt out, these measures would become subject to the jurisdiction of the Court of Justice of the European Union and the enforcement powers of the European Commission on 1 December 2014 in relation to the UK, as they will to all other member states. If the opt-out is exercised, all the measures would cease to apply to the UK and it would have to negotiate to seek to rejoin any measures where it wanted to do so.

Some words about process: it has been clear from the start that the 31 May 2014 final deadline for triggering the block opt-out left far too little time before the cut-off date of 1 December 2014, when any opt-out would become effective, to negotiate with the Commission and Council the necessary decisions to permit the UK to rejoin any of the measures it wished to, especially since the upcoming European Parliament elections and changeover in personnel at the top of the European institutions could complicate matters. Therefore, we have no criticism of the Government for moving well ahead of the 31 May 2014 deadline; indeed, we believe they should, if anything, have moved sooner than they did to allow an adequate period for what will necessarily be complex and substantive negotiations. Time alone will show whether we were right to be concerned at the slowness with which the Government reached a view. Nor did we, or any of the many witnesses from whom we took evidence, question the Government’s unfettered right to trigger the opt-out, a right which was accepted by all the other member states when they ratified the Lisbon treaty. However, that, I am afraid, is as far as harmony on process goes.

During the first half of 2012, both Houses were assured by Ministers in the most unambiguous and unequivocal terms that before any decision was taken on triggering the opt-out, there would be extensive consultations with the relevant committees in both Houses, yet the Prime Minister announced the decision in—of all places—Rio de Janeiro, rather than in Parliament, on 28 September 2012, at a time when, seemingly, no consultation had taken place at all. There had been no consultation with the committees of either House; no consultation with the Ministers of devolved Administrations, two of which—those in Edinburgh and Belfast—are responsible for separate, independent legal jurisdictions; and no consultation with the law enforcement agencies and the professional bodies which would be directly affected by any opt-out.

Nor did matters much improve after the Home Secretary finally informed Parliament of the Government’s “current thinking” by a letter and Statement in October 2012. Explanatory Memorandums were promised in November 2012 but did not finally appear until June 2013. An impact assessment somehow went missing in action and has still not been provided. No indication was given by the time of our first report in April 2013 as to which measures the Government would seek to rejoin if they triggered the block opt-out, and when that information was provided and the list of 35 measures was revealed in July 2013, Parliament was given a few days only before being asked to approve the triggering of the opt-out. The Government response to our April 2013 report arrived a month beyond the two-month deadline for such a response and actually on the day this House was being asked to vote on the opt-out. It is, I fear, a sorry saga of disrespect for Parliament which speaks for itself.

I will not weary the House with too much detail from our first report but will focus on six broad conclusions that we reached. First, we asked all our witnesses whether they had any evidence that any single one of the pre-Lisbon measures which fell within the scope of Protocol 36 had actually been detrimental to the UK. Generally our witnesses—and they included those such as Dominic Raab MP, who not only wanted the Government to trigger the block opt-out but wanted them to withdraw from those post-Lisbon measures to which the UK had already opted in—were not able to identify a single measure that had damaged this country. Some of the measures have had no practical impact because the UK was already applying their provisions under our domestic law; some were defunct and therefore irrelevant to the whole exercise; and many had been of positive benefit to the UK, not least by strengthening the fight against serious international crime. So it was clear that the only matter at issue with respect to the pre-Lisbon measures was whether the jurisdiction of the European Court of Justice and the enforcement powers of the Commission should be extended to cover them from 1 December 2014 as the treaty provides.

Secondly, it became apparent from our inquiry that the Government, quite rightly in our view, had no objection of principle to the extension of the European Court of Justice’s jurisdiction and the Commission’s enforcement powers to other aspects of justice and home affairs legislation. How otherwise can one construe the fact that the Government have opted in to a substantial number of post-Lisbon measures—49 at the last count and mounting—which automatically involve the extension to cover them of that jurisdiction and power? As the Home Secretary told us, the Government’s approach was a pragmatic one based on their assessment of the national interest. We applauded that.

Thirdly, we considered carefully whether the existence of EU competence in the field of justice and home affairs—this is an area of shared competence—in some way undermined or weakened the system of common law as practised in this country. We heard some assertions to that effect, but no evidence was given to us to substantiate those assertions. Indeed, to the contrary, we heard a great deal of evidence on the benefits, most particularly from the professional bodies that might have been expected to be most vigilant in that respect. It is, of course, a simple fact that there are four member states with elements of common law in their systems in the European Union: Cyprus, Malta, Ireland and the UK.

Fourthly, we also gave full consideration to suggestions that, even if the UK triggered the block opt-out and did not seek to rejoin, for example, the European arrest warrant, our national interests could be secured in other ways, by relying on Council of Europe instruments or on bilateral agreements for co-operation with other member states. Our conclusion was that such bilateral systems, even if other member states were prepared to negotiate them, which is far from certain, would be slower, more costly and a less sure protection for our citizens than they have under existing EU legislation; and that the Council of Europe instruments would be no equivalent substitute for that legislation.

Fifthly, we looked more carefully than the Government initially seem to have done into what I would call the Irish dimension: the massively improved law enforcement co-operation that now prevails between the Republic and Northern Ireland. While the Irish Government did not wish to give evidence to our inquiry, we heard quite enough from other sources to convince us that that the improved co-operation and the de-politicisation of law enforcement activity on both sides of the border depends largely on the underpinning of EU legislation. Remove that underpinning—and here the European arrest warrant is of central importance—and one would risk the unravelling of structures of co-operation which have done so much to improve the daily lives of our fellow citizens in Northern Ireland.

These five conclusions led us to our sixth and overarching conclusion that the Government had not made a convincing case in favour of their preferred option to trigger the block opt-out and to seek to rejoin a limited number of pre-Lisbon measures. That sixth conclusion has subsequently been overtaken by the decision of both Houses to endorse triggering the block opt-out, but it remains the view of the two sub-committees and of the EU Select Committee itself.

Our second report, for which the Government specifically asked in the Motion that was agreed on 23 July, did not seek to reopen that debate, but rather to focus on the situation following the Government’s notification to the Council on 24 July triggering the block opt-out. Here, too, I will spare the House too much detail and focus on a few salient points. First, we carefully reviewed the 35 pre-Lisbon measures which the Government had stated an intention of rejoining and which this House, unlike the other place, had explicitly endorsed on 23 July. We concluded that the Government had indeed picked out most of the measures that it was essential for the UK, in its own national interest, to seek to rejoin. However, we identified a small number of additional measures, beyond the Government’s 35, which we believed it was in the UK’s national interest to rejoin; and we urged the Government to add these to their list when they sat down to negotiate with the Commission. These included a number of implementing Europol measures which we believed would be judged by the Commission to be necessary to rejoin on coherence grounds, a view with which we had sympathy. However, we also identified the European probation order, the European judicial network and the convention on driving disqualifications which we believed it was in the UK’s national interest to rejoin; and the framework decision on racism and xenophobia, withdrawal from which we believed would do the UK considerable reputational damage, even if our domestic laws were there to give effect to its provisions. I can just imagine President Putin or the Chinese Government rubbing our noses in that withdrawal.

Turning back again to process, we underlined the importance of the Government giving Parliament regular progress reports on the negotiations, by now, I assume, under way with the Commission and the Council; and of their providing a full and detailed impact assessment in good time before they seek the further vote in both Houses which it is their stated intention to hold on the final package of measures that the UK will rejoin. We expressed yet again the concerns that time is short between now and 1 December 2014 to complete the negotiations for rejoining the pre-Lisbon measures identified, which might necessitate putting in place robust transitional measures to bridge any gaps. This would be particularly important in the case of the European arrest warrant, where any hiatus could lead to extensive litigation and perhaps to suspected criminals escaping justice.

The Government’s response to this second report was full, detailed and on time— just. It arrived on the day it was due; on this occasion, sufficiently well in advance of today’s debate for it to be properly considered. For that, credit should be given, but I have to say that much of its content was deeply disappointing and it did not seem to give a seriously considered reaction to the very modest list of additional measures that we suggested should be included among those the UK should seek to rejoin, and which our committees believed that it would be in the national interest to do. The repeated assurance of some negotiating flexibility over the Europol implementing measures is welcome, but they should surely have been on this list from the outset. The explicit recognition that a future Government might well wish to rejoin the European probation order leaves us wondering why we are planning to drop out of it now.

It is good, of course, that the Government have at last recognised that there could be some reputational damage following our withdrawal from the racism and xenophobia decision. No doubt there will be. Only time will tell whether it will be, to use the Government’s word, “significant”. Why incur such damage at all when the reason for doing so appears to be the rather far-fetched fear that the UK might be put under pressure to criminalise Holocaust denial? The reasons given for not rejoining the European judicial network are so threadbare as to be almost laughable, and on the Convention on Driving Disqualifications, it appears that we are going down the road of negotiating bilaterally with the Irish a provision that will replicate the EU measure while ditching all the practical benefits we get from the EU measure vis-à-vis the other 26 member states. Would it not have been an awful lot simpler and certainly more cost-effective simply to seek to rejoin the EU Convention on Driving Disqualifications?

All in all, I fear that it is hard to resist the conclusion that the Government’s approach to calculating the national interest on these measures is purely arithmetical one and not based on the merits of the measures in question. That is why it is to be hoped that, as the negotiations with the Commission and the Council proceed, the Government will think again about their possible inclusion. It is also a reason to take more seriously than the Government currently do our recommendation that there should be a commitment to review the effect of the block opt-out some years—three, perhaps—after it comes into force.

I apologise for speaking at such length, but the subject matter is complex and the issues at stake are of great importance. I would be most grateful if the Minister, in addition to responding to my contribution and those of other noble Lords, would give a progress report on the negotiations with the Commission and the Council. Will he tell the House whether the negotiations started and, if so, when? Will he say when the next progress report to Parliament will be made and give an undertaking to provide the promised impact assessment early enough before the second debate and vote to permit your Lordships’ EU Select Committee, if appropriate, to report to the House ahead of that vote? Will he give some idea of the timing and scope of that debate and vote?

I realise that I have spoken quite harshly about the Government’s handling of this issue. I have done no more than express the views of the committees but, in concluding, I should add one personal observation. The choice offered to the Government under the provisions of Protocol 36 was an exceptionally unpalatable one and, while the committee believes that they may have made the wrong decision, it would be as well to recognise that the drafting of Protocol 36, posing an all-or-nothing choice, was not in the best interests of this country.

--- Later in debate ---

[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 Hannay of Chiswick]

My Lords, I apologise for intervening, but I wish one could persuade the Government not to treat the unpredictability of a court of law as a reason not to be subject to its jurisdiction. I hope that every court of law in this country is unpredictable. If it were predictable, we would not have the rule of law in this country.

[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 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—

[Lord Hannay of Chiswick]

I would be grateful for a simple answer to a simple question. The Minister said that technical discussions had begun, and he did not wish to prejudice the position in negotiations. Have negotiations begun with the Commission and the Council, or have they not?

[Lord Taylor of Holbeach]

Exploratory talks have taken place and do so all the time. Formal negotiations have not started, and we need to be able to get some of the technical issues resolved before we enter into full negotiations. That is a reasonable position to take. Noble Lords would expect the Government to recognise their responsibility to the UK national interest in this respect. I hope that Parliament would understand the reasons why, at this point, the Government do not necessarily want to reveal the details of these negotiations. All I have said is that there will be opportunities, as these negotiations proceed, for reports to Parliament and for keeping Parliament and the citizens of this country informed about them.

There was a question about impact assessments, and I was going on to say that the noble Baroness, Lady Corston, was particularly concerned about the impact assessments of the 95 measures the Government will not seek to rejoin. I can confirm that it is the Government’s intention to provide, in good time, ahead of the second vote, an impact assessment on the measures that the Government will rejoin. I can also confirm that the Government will discuss the timing and format of the second vote with the chairmen of the relevant committees. However, at this stage, as the noble Baroness will know, we do not intend to provide impact assessments for those measures that we will not be joining.

I was asked what the Government’s view is of the legal test of coherence in Protocol 36. The noble Baronesses, Lady Prashar and Lady Corston, were both concerned about this. The Government consider that in a number of areas the case law of the European Court of Justice makes it very clear that coherence means “legally effective” and so takes us further than the test of practical operability, also in Protocol 36.

I conclude by referring to two speeches made by noble Lords sitting behind me. The first was by my noble friend Lord Jopling, who took the Government to task in a pretty straightforward manner. I assure him that I take my role in replying to the concerns of Parliament extremely seriously. I will do my best to ensure that the circumstances in which he found himself do not recur, but I can only do my best on that.

I have been handed a correction. The coherence test takes us no further, I am told. I apologise if I misread the messages from the Box but this one has come down in big block letters so that I can correct myself. I was seeking to reassure my noble friend about those matters.

I should also like to comment on the speech of my noble friend Lord Eccles. I felt that he placed the debates that we have in this House on our membership of the European Community in the context of our global life—the global existence of our country. It was an extremely valuable contribution and something which, when we deal with the detail of some of these matters, we should always bear in mind.

Perhaps I may say one further, rather personal, thing. I am committed to making a success of the dialogue between the Government and this House. Mention was made of tone and language. I make a plea to noble Lords: let us please try to keep this dialogue on a good basis. I will be as open as I can be with noble Lords and will seek, as best I can, to keep the committees informed, but it is a two-way street. I would hate to think that we ended up having adversarial debates on an issue which is so important to the future of this country. That is a personal plea on which I conclude my contribution to this debate. I will be writing to noble Lords and I thank all who have participated in what has been a very worthwhile evening.

[Lord Hannay of Chiswick]

My Lords, I begin by thanking all noble Lords who have participated in this debate. It has provided wide-ranging and effective coverage of a very complex subject, and I am grateful to your Lordships—both those who are and those who are not members of the two committees and the EU Select Committee.

I should also like to thank the Minister and to respond to his final remarks. He has, with the sincerity and good humour that characterise all his interventions in this House, drawn quite a lot of the sting from some of the very legitimate criticisms to which he has been subjected today. I hope he will reckon that he is held in great respect in this House by all Members and that that respect will be even more increased if he takes back the message from this House of the criticisms that have been levied, although not to him personally. I am grateful to him also for the offer to reply in writing. He has done this in previous debates and it is extremely valuable and welcome to all Members.

By necessity, this debate has been a great deal about process and technical detail and someone listening to it from outside might think that it was confusing. However, I wish to conclude by making a couple of remarks about the wider picture here. The internationalisation of crime is proceeding apace, and nowhere more so than in Europe. We may not have a perfect single market but the criminals have a single market from which they are not hesitating to benefit. We need, therefore, a far greater degree of international co-operation than we have ever had in the past. The legislation we have been discussing on which the Government have triggered the opt-out, the 133 measures, was not designed by a mad group of federalists in Brussels: it was designed by the Justice and Home Affairs Ministers of the member states and every single one of them was agreed by unanimity. We must get away from the mindset which says, “This is imposed on us by Brussels and we should get out of it if we possibly can and if it is not going to be too costly to do so”. That is not a good mindset.

The hard fact is that the security of this country neither begins nor ends at the water’s edge any more: it goes far wider than that. The justice and home affairs part of the European Union’s activities is of great value to this country, and it is likely to be of even greater value if we do not wreck it in the process of this tricky negotiation which we have now undertaken. It is an odd negotiation because, in all my years of dealing with the European Union, it is the first time a British Government have deliberately put themselves at a disadvantage and then asked to get back into many things. It is a fairly odd state of affairs for which, as I said in my opening statement on a personal basis, I do not entirely blame the present Government, who had that mechanism foisted on them by the previous Government.

However, whatever it was, it is an uphill task. I end with the following. I am sure that all noble Lords wish the Minister and his colleagues the best chance of success in the negotiations they are undertaking. I was shocked to hear that six months after the Prime Minister notified the other member states of our decision to opt out of these measures, we still had not begun negotiation. We have all been around long enough to know what exploratory talks mean—and they do not mean negotiation. I hope the noble Lord and his colleagues will shortly come to the House and tell us that we have begun negotiation. Six months out of the 16 available have now passed and they have not led to very much. Our wishes are with the Government that they have success in this negotiation. It is in none of our interests that they should be blocked or fail, but that may require more political involvement and effort and energy than they have shown so far. I beg to move.

Motion agreed.