EU: Justice and Home Affairs (EUC Report)

Lord Hannay of Chiswick Excerpts

Tuesday 22nd July 2014 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

To move that this House takes note of the report of the European Union Committee on Strategic Guidelines for the EU’s Next Justice And Home Affairs Programme: Steady as She Goes (13th Report, Session 2013-14, HL Paper 173).

[Lord Hannay of Chiswick (CB)]

My Lords, my task in opening this debate is to address the recommendations made by your Lordships’ EU Select Committee with respect to the strategic objectives to be set by the Governments of the 28 member states for the development of the European Union’s justice and home affairs programme for the next five years—that is to say, from 2015 to 2019. The Government’s response to these recommendations is also available and much of what I have to say will be directed to that response. For good measure, we also now have the European Council’s conclusions/decisions on its strategic objectives for the period ahead, which were reached on 27 June and which are available in EUCO 79/14. So, rather unusually, in this debate we are debating the whole issue in the round, from the inquiry and report by your Lordships’ House through the process of negotiation to its completion.

I am speaking as the former chair—until the end of the last session, in May this year—of the EU Select Committee’s Sub-Committee on Home Affairs, Health and Education, which was responsible for the report we are debating. In doing so, I pay tribute to the members of my own sub-committee, to the members of the justice sub-committee who participated in our work, and to the three successive clerks—whose help and support in the last four years was so invaluable to me—Michael Torrance, Chris Atkinson and Michael Collon twice.

Looking back, as we did when we wrote this report, at the rapid development of the EU’s activity in the field of justice and home affairs over the last 20 years, we considered carefully what were the main drivers of that increased activity. On the basis of the evidence that was put before us and the evidence submitted to us in the context of other recent inquiries, particularly those into the block opt-out under Protocol 36 of the Lisbon treaty, we concluded that the main driver was the challenge from the massive increase in serious international criminal activity in recent years. That increase has been not only in volume but also in complexity. It has been marked by the unwelcome arrival of many new fields of criminal activity—in human trafficking, drugs, terrorism, cybercrime, child pornography and financial fraud.

It was our view that none of these challenges could be adequately combated without intensive international co-operation. If you doubt that, just look at the steadily increasing use being made by our own law enforcement agencies of such EU agencies as Europol and Eurojust. The case for much of this justice and home affairs activity is simple: it is to protect our own national security. Those who criticise this development need to explain convincingly how that could be better achieved in some different way. So far they have failed to explain that at all.

We were also clear that in the five years ahead the emphasis needed to be on consolidation and implementation and not on the proliferation of new legislation, which should be brought forward only if there is strong evidence of the need for it. I am glad to note that the Government, the Commission and now, most importantly, the European Council agreed that this should be a period of consolidation and implementation, and those words appear in their conclusions. That approach is encapsulated—slightly more crisply than the European Council managed—in the title of our report, Steady as She Goes.

Within this overall ordering of priorities, we urged that emphasis should be put on the following four main areas. First is the completion of the existing legislative programme. This includes important measures to reform and Lisbonise—it is a terrible word—Europol and Eurojust. It includes the proposals for passenger name recognition and the personal data protection package. Those are all big bits of legislation which remain unfinished and on which much work remains to be done. There are other, less prominent measures still in the pipeline. It does not include the proposal for a European public prosecutor’s office, which we continue to believe does not properly fulfil the criteria of subsidiarity and against participation in which the United Kingdom is protected by clear treaty provisions.

Secondly, we focused on the implementation of all existing justice and home affairs legislation in all member states, which is lamentably not currently the case. This country has its lapses, too, in that respect. One example is the European supervision order, which was mentioned in debate last Thursday. Fortunately that measure, which will enable British citizens to be bailed here until their cases are ready to be tried, is on the Government’s list for rejoining and should be in effect by the end of this year, a mere two years late. Will the Minister confirm that that will, indeed, be the case, assuming that the package on Protocol 36 goes through?

Thirdly, we urged that there should be much more systematic and effective evaluation of justice and home affairs legislation. So far, such evaluation at the European level has been patchy and inadequate and I am glad that the European Council has now agreed that there should be a review in 2015 of the internal security strategy and that there should be an overall review of the justice and home affairs strategic objectives, which we are debating this evening, in 2017, half way through the new programme period. That is a step forward and I hope the Government will be really vigilant in making these processes of evaluation more effective. Fourthly, we emphasised the critical importance of the adequate resourcing and the sound management of the European Union’s agencies: of Europol, Eurojust, the EMCDDA for drugs, ENISA for the internet, FRONTEX and the new asylum agency in Malta. Much of the success or failure of the EU and its member states in their fight against international crime will depend on the practical co-operation which these agencies can provide and engender.

I will say a word or two about the Government’s response to our recommendations. I am glad to say that this was broadly positive and I am grateful for that, even if the tone was, from time to time, just a touch grudging. However, there were a few points of misunderstanding which I tried to clear up. First, we never intended to suggest that evaluation should be entirely and solely in the hands of the Commission: it should not. However, we cannot possibly imagine these programmes being evaluated properly without the full and active co-operation and participation of the Commission, whose task it is to help to carry them out. That co-operation was not forthcoming during the evaluation carried out during the preceding Stockholm programme and it was, frankly, a pretty useless affair. Now that the European Council has mandated an evaluation process, the Commission must be involved. I am sure they will be and the Government should not find that problematic in any way.

Secondly, we made a proposal for an annual implementation scorecard showing—and naming and shaming—which member states had fallen behind on implementing justice and home affairs legislation. This could genuinely be helpful and could work to the UK’s national interest in securing a level playing field. We were not proposing, and we would not support, the much more ambitious type of scorecard championed by the former vice-president, Viviane Reding, which would involve evaluating the overall judicial system of the member states. That is not something the Commission is well placed to do and it ought not to be doing it. The sort of scorecard we suggest would be valuable and I hope the Government will have a further look at that now to see whether it is something they could push forward.

Thirdly, on the challenge of using the yellow card—the subsidiarity procedure—which is of great importance in such a sensitive area as justice and home affairs legislation, how can we make that more effective? The Government seem to have accepted our approach, under which the Commission could, without any need to change the treaty, give national parliaments 12 or 16 weeks rather than the current eight weeks to submit a reasoned opinion, agree to withdraw or to substantially amend any proposal that was the object of a yellow card, and accept that proportionality considerations could be properly raised in a reasoned opinion. Those three reforms would do a lot to make the yellow card work better. I trust that the Government will now be pressing ahead with these ideas. Perhaps the Minister could say how that is going to be carried forward.

In conclusion, I suggest that this inquiry and this report have demonstrated how your Lordships’ Select Committee can insert itself effectively into the shaping of EU policies by formulating and presenting its views upstream of formal policy proposals becoming set in concrete. That surely needs to be something that we try to do more often in the future. On the next occasion that the noble Lord, Lord Pearson of Rannoch, presents himself here and unleashes one of his familiar tirades of complaint against the uselessness of the scrutiny procedure, I look forward to hearing him pay tribute to this report on the EU’s strategic objectives as having shown that we can be effective in that process. I may have to wait quite some time for that tribute but I will do so with patience and in hope.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, I thank all noble Lords who have taken part in this reasonably short debate. In particular I thank the Minister for the considered way in which he has responded to all the questions that were asked. I am delighted that he will have another look at the scorecard idea.

I have two points. The point made by the noble Baroness, Lady Smith, about the importance of the way that crime is dealt with in other member states as being part of our national security is one that is not terribly well grasped. The noble Lord, Lord Judd, made that point, too. In the world we now live in, with a highly integrated European market, the fact is that the criminals are half way down the track before we have left the start line. Measures of co-operation of the sort we have been debating are the way in which we are going to catch up with them and, it is hoped, get ahead of them and catch them—because these things often happen elsewhere than in the UK, but then the criminals come here and continue their activities. There are many ways in which these cross-border crimes continue. The noble Lord and the Government have got the balance about right now and I hope that this will lead to what I was delighted to see was a commitment to Britain’s membership of the Justice and Home Affairs Council that goes beyond the fatal date of 2017. That was a welcome sign indeed. I hope that when the Protocol 36 negotiation is finally concluded—successfully, we must all hope—the Government will again become, after a year of necessary negotiation, a full participant in this field to which we have contributed an enormous amount over the years, and from which we have gained a large amount.

Motion agreed.