EU: Police and Criminal Justice Measures

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I must declare an interest, as a member of EU Sub-Committee E, one of the two sub-committees that produced the report that we have been discussing this evening. I also remind the House that I am a trustee of Fair Trials International, which has a particular interest in the operation of the European arrest warrant. Given the lengthy speakers list and the short time available to us, I will cut to the chase.

For me and my noble friend on the Front Bench, judging by some of his opening remarks, one of the fundamental problems that the Government faced in addressing this opt-out decision is the nature of the wording of the opt-out negotiated under Protocol 36 by the last Government. This is its all-in or all-out nature. There is no picking and choosing; no matter how futile, irrelevant or unnecessary a particular measure may be, the totality has to be accepted or rejected.

I was glad to hear from the noble Lord, Lord Hannay, that on reflection he would not divide the House on his amendment. That would have seemed an unwise course of action. First, it would have treated the issue as black and white. As I said, while that construction is placed on us by the wording of Protocol 36, within the areas covered by the protocol the pluses and minuses of the policy issues are much more nuanced. Secondly, while the Government should have responded earlier to the joint sub-committees’ report—I entirely share the view of other noble Lords that producing the response at noon today is really not good enough—nevertheless Members of the House not on those sub-committees should have the opportunity to express their views this evening. That answers the point made by the noble Lord, Lord Richard, about the rationale for this debate. It will no doubt help to inform the Government’s thinking. Finally, as I understand it, this is only the first time round the track, because we will come back for a further debate and discussion as the Government’s thinking and approach to each individual opt-in or opt-out decision become clear.

[Lord Richard]

My Lords, since the noble Lord quoted me, I thank him for giving way. He says that the purpose of this debate is to help to inform the Government’s views. Why, in that case, is this not a take-note Motion? Why is it framed in the express terms of the opt-out?

[Lord Hodgson of Astley Abbotts]

If the noble Lord reads the Motion before the House, he will see exactly what it is. It gives Members of your Lordships’ House, particularly those who have not participated in the sub-committees’ deliberations, a chance to express their views. That is entirely appropriate.

[Lord Hannay of Chiswick]

My Lords, earlier in the noble Lord’s speech, he congratulated me on the wisdom of not putting my amendment to a Division. However, he failed to note that the reason was that the Government had conceded both points that were contained in it.

[Lord Hodgson of Astley Abbotts]

That is true, but it would have been unwise to have proceeded with a black-and-white decision along the lines that we are operating, as I explained.

In the remainder of my remarks, I want to concentrate on just three points. These are the different categorisations of the 130 opt-out decisions that we are looking at. First, there are the 40 or so that are considered redundant or inapplicable. Some noble Lords and some members of the sub-committee have argued that there was no point in disturbing these particular sleeping dogs. I am afraid that I take a more fundamental approach than that. Where possible, one should remove redundant provisions from the statute book. Leaving such provisions extant, however innocuous they may seem at the time, can cause unforeseen problems in the future, as to both applicability and compliance. From my point of view, the Government were right to take this opportunity to clean up the directives in this way.

The second category is of those directives to which the Government seek to opt back in. Primarily, they focus on enhancing the international dimension of the fight against organised crime. It is more than ever a self-evident truth that crime, along with many other activities, has gone global. The European dimension to this global challenge has formed important elements of many reports from your Lordships’ various EU sub-committees. I strongly support decisions to continue with hard and practical measures in this field: the joint investigation teams, exchange of information under ECRIS, mutual recognition of confiscation orders and so forth.

Not all the directives are perfectly formed. I am pleased that, while recognising the value of the European arrest warrant—I entirely share the views of noble Lords who have pointed to its particular importance in the relationships between the UK and the Republic of Ireland—nevertheless improvements can and should be made. These should be in areas such as proportionality, not allowing people to be held for long periods without trial overseas and using videoconferencing to enable people not to have to travel, particularly where the case against them is not as sure as it might be. For these global security matters, we should opt back in and I am glad to see us doing it. If it is in our interests to improve global security, I see no reason why fellow European members should not wish to collaborate with us to ensure that.

Finally, I turn to the third category of directives, to which the Government propose not to opt back in—the most challenging area of our discussion. I am no lawyer, but my concerns as an external viewer are threefold. First, how does one combine into one legal framework cases that emerge from two different legal traditions: the investigative approach, followed by most EU member states, and the adversarial common law approach of the UK, Ireland, Cyprus and Malta? Secondly, to what extent does any potential judicial activism of the European Court of Justice represent a challenge to our established legal procedures? Thirdly, what will be the long-term impact of the European Convention on Human Rights, although an entirely separate structure, on the first two? I do not pretend to have clear answers to these questions and I am not sure that many other people do either. In the circumstances, the Government are wise to proceed slowly, to watch developments and to react accordingly. Joining in will surely represent a one-way ticket and I am not yet convinced that the UK should be embarking on that journey.

In conclusion, given the restrictions imposed by the wording of Protocol 36, the Government are taking a broadly sensible approach by, first, removing superfluous and redundant legislation; secondly, by rejoining those directives that help to increase the security of Europe as a whole; and, thirdly, awaiting the clearing of the fog that still hangs over a number of important public policy issues. That is why I shall be supporting the Government tonight.