Justice and Home Affairs: United Kingdom Opt-Outs

Lord Hannay of Chiswick Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, the Minister has introduced our debate today with his customary clarity and courtesy. If I have some critical things to say about the Government’s handling of Protocol 36 of the Lisbon treaty, of the block opt-out and of the reinsertion negotiation—which looks as if it may now be close to closure—that in no sense detracts from my respect for the way that he has managed the debates in this House. I rather suspect that he, like me, would have felt some relief if this had indeed marked the final parliamentary stage in this saga, but that is not to be. I understand from what the Home Secretary said in the other place that there will be a full debate and vote there at the conclusion of these proceedings. Like the noble Lord, Lord Sharkey, I would be grateful if the Minister would confirm that the same will be true in this place.

I will not weary the House with a detailed reprise of the previous stages of our debates. Suffice it to say that your Lordships’ EU Select Committee remained unconvinced by the Government’s case for triggering a block opt-out in the first place. We also found serious fault with the Government’s failure to live up to their original commitments on consultation before they took any decisions, and we believe that the list of reinsertion items should have been a bit longer. All that is now water under the bridge. Last July, this House—unlike the other place—endorsed the list of 35 reinsertion measures in Command Paper 8671. I hope that some lessons will be learnt for the future and that some of the mistakes made will not be repeated.

Command Paper 8897, the White Paper that we are debating today, lists and provides impact assessments for 35 measures that we hope to rejoin on 1 December. As the Minister made clear, those measures are not in all respects the same as the 35 that we debated last July, five having fallen by the wayside for reasons that other noble Lords have mentioned, and five having been added to the list, some of them drawn from the list suggested by your Lordships’ Select Committee in its second report last October. I express gratitude for the fact that these measures in our proposal of last October have been rejoined, or are candidates for rejoining. I note with some amusement, however, that the Home Secretary did not care to attribute much credit to this House for the additions to the list, nor—I was fascinated to see—did the Order Paper in the House of Commons even refer to the two extremely lengthy reports prepared by this House. Among the long list of reports from Select Committees, it referred to all the fairly content-free reports that the Commons’ own committees produced, but did not refer to the reports from your Lordships’ House. I deduce from this that the length of the corridor is quite long.

In any case, the Minister has explained the list, and the additions show some flexibility which is to be warmly welcomed. Your Lordships’ House can, as I say, claim credit for some of that. I only wish that the list of additions could have been a bit longer. I remain completely baffled by the rationale for our refusing to proscribe the crimes of xenophobia and racism. I do not think that that is in the sense of what are known as British values, and I am sad that we have not rejoined that.

On the matter of impact assessments, the ones before the House have been provided in a very short time before our debate, and in an even shorter time before the debate in the other place. I do not think that that was very satisfactory. Having examined the debate in the other place, I did not notice a great appetite for grappling with anything as complex, detailed or factual as the impact assessments; but, nevertheless, they did not have very long to think about them. That really is not the way to handle parliamentary process. Moreover, we have still not been given any impact assessments for the 90 or so measures we are not going to rejoin, despite repeated requests for them to be provided—most recently today by my noble friend Lady Prashar and others who spoke in this debate. Withdrawing from these measures will of course have an impact. I do not imagine that the Minister is going to rise at the end of this debate and tell us that it will not have an impact. If he does, he will of course have to answer the question: why on earth are we withdrawing from them if there is no impact? Let us assume that they do have an impact. In that case, Parliament deserves to be told what that impact is. It has not been. I think that that was a bad way of handling this, and I continue to think so.

I think that it is right to dwell for a moment on one other specific item that is on the list of measures that the Government wish to rejoin, the European supervision order, which provides for our citizens and, indeed, the citizens of other member states who are indicted in another member state and extradited under an arrest warrant, to be bailed in their own country until such time as their case is brought to court. This is, of course, the sovereign remedy to the injustice that occurred in the notorious Symeou case, when one of our citizens languished in a Greek jail for many months before being brought to trial. Had we respected the deadline in the European supervision order legislation—which we agreed to ourselves—we would have introduced that legislation in this country in December 2012. But we did not. We did not respect that deadline and so the European supervision order was caught up in the cat’s cradle of Protocol 36, block opt-out, reinsertion, et cetera. Now the earliest it will become available—the possibility for a British citizen to be bailed in this country if they are accused of a crime in another member state—is December 2014. For two years, therefore, British citizens have been deprived of any possible recourse to that relief. That is not an outcome of which we can be unduly proud.

That said, I pay tribute to the tenacity and flexibility with which the Government have handled the last year of complex negotiations in Brussels. Credit needs to be given—and I would give it—to everyone from Ministers down through officials and members of the UK permanent representation, who I know have put in a huge amount of time on this. In fact, as I have said in previous debates, this Government did not devise the infernal machinery of Protocol 36, they were handed it when they took office.

Are there any wider lessons to be learnt from this episode? One is that it is in our national interest to participate actively in the European Union’s justice and home affairs work if we are to combat effectively the rising tide of serious international crime. Noble Lords might not have thought that from listening to last week’s debate in the other place, redolent as it was with references to every statute from Magna Carta onwards being trampled under foot—but that, fortunately, was the conclusion of the Government as well when they decided to rejoin the 35 measures that we are discussing today, and when, on a day-by-day basis and in a pragmatic way, they opt in to new justice and home affairs measures. It is the view that was endorsed by this House last July.

As we approach decisions on these other tricky issues relating to our EU membership, let us not forget that it is seldom a clear black and white issue, and that flexibility and a spirit of compromise can often produce the best result.