EU: UK Opt-in Protocol (EUC Report)

Lord Richard Excerpts

Wednesday 15th July 2015 Grand Committee

[Lord Richard (Lab)]

My Lords, I thank my noble friend Lady Quin for the way in which she chaired this committee. It was done with skill, charm, and to great effect. I also thank the clerks to the committee, who performed with their usual skill, as did our legal advisers, who in this particular case were absolutely essential.

I am delighted to see the noble Lord, Lord Faulks, here. As a former practitioner, with many years at the Old Bailey, may I say how much I have admired, watching him in this House over the years, the charm and skill with which he advocates some of the worst causes it is possible to devise? Professionally, therefore, I am delighted to see him here.

This is an extraordinary debate. First, I have never known a report which, frankly, was quite so universally critical of the Government’s legal position. Usually, in an issue which involves disputes of this sort, you find somebody, somewhere, who is prepared to stand up and say, “Yes, I think the Government are right”. In this case, we could not find anybody who was prepared to do that. Secondly, I think this is the first time I have ever taken part in a debate on a report of one of your Lordships’ Select Committees in the absence of a response to that report from the Government.

As I understand it, a number of deadlines were passed and it was felt that this debate had to proceed. Quite why there has been no response is as yet unclear. If it means that the Government are actively and seriously reconsidering their current position, that is to the good and this debate is perhaps premature. If not, why has there been such an inordinate delay? This is offensive to the committee and contemptuous to the House. As my noble friend Lady Quin said, we waited a long time to receive the Government’s evidence to the committee. When it came, it was negative and sparse.

As I see it, there are three issues that ought to be considered here: first, whether the Government’s view as to the effect of the protocol is accurate, and particularly whether their interpretation of the words “pursuant to” is right; secondly, the effect of the recent judgments of the European Court of Justice and whether that case law is undermining the scope of the opt-in protocol; and, thirdly, whether there is any evidence that the Commission has deliberately tried to subvert the scope of the opt-in itself.

I will deal with these three issues separately. I think it is worth while to begin at the beginning; namely, with the terms of the treaty itself. Under the terms of the Lisbon treaty, the UK was given an opt-in protocol to replace its loss of the right to veto. That protocol allows the UK not to participate in justice and home affairs legislation. A recital to the protocol explains that it is intended to,

“settle certain questions relating to the United Kingdom and Ireland”.

The relevant articles of the protocol read as follows. Article 1 provides that the UK,

“shall not take part in the adoption by the Council of proposed measures pursuant to”—

I emphasise those words because they will become extremely important—

“Title V of Part Three of the Treaty on the Functioning of the European Union”.

As a consequence, Article 2 establishes that,

“no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States”.

I do not think I need to read the rest of the article.

This dispute has arisen because of the Government’s interpretation of “pursuant to”. In their written evidence, the Government said—and this is the nub of the argument—that Articles 1 and 2 of the opt-in protocol,

“are not restricted to provisions in agreements concluded under a Title V legal base, but to those adopted or concluded ‘pursuant to’ Title V. This is a broader test which, in the Government’s view, extends to any provision in an international agreement that contains content where the EU competence for negotiating, signature and conclusion of that agreement flows from Title V of the Treaty on the Functioning of the European Union or TFEU, that is, JHA content”.

It is in respect of that issue that we heard a number of witnesses.

The clerks of the committee made efforts to find lawyers who actually agreed with the Government’s position on this. They failed. I have never known a body of evidence from a number of distinguished witnesses which was so definitively in the same direction. They were asked whether they thought the Government’s interpretation of “pursuant to” was legally reasonable. None did. Professors Peers, Chalmers and Barrett were unanimous in their view. Professor Peers said the Government’s interpretation was “unconvincing”. Professor Chalmers concluded that it was “particularly challenging”. Professor Barrett thought it was a “singularly unlikely interpretation”. Dr Bradshaw concluded that “pursuant to” should be interpreted as “requiring a legal basis”. Professor Cremona thought the Government’s approach was “misconceived, legally speaking”.

The only body that advocated the Government’s interpretation were the Government themselves. No academic, no Government, no institution supported them. It is worth pointing out, as my noble friend already has, that Ireland, the other beneficiary of this opt-out procedure, has declined to follow the Government in their stance. It has not argued for a similar definition of “pursuant to”; I do not think it has even raised it.

It seems to me that the ordinary meaning of the expression “pursuant to” is more than an alternative way of expressing “following upon”. It requires, as our evidence says, a direct link with the parent measure. As was pointed out by Professor Peers, if the drafters of the protocol had intended the broad notion of the words advocated by the Government, they would have made it clear with different wording. Professor Cremona thought that the French version, “en application de ce titre”, and the Italian version, “a norma di detto titolo”, clearly expressed the concept of being based on or adopted according to that title.

This view is fortified by the fact that “pursuant to” appears in no less than 99 places in the EU treaties, protocols and declarations. The Government apparently take the view that the words should be interpreted in relation to the context in which they appear. Since this could lead, potentially, to 99 different versions of what the phrase means, it seems to me that that approach is somewhat fanciful. The Minister was a distinguished legal practitioner and will know that, if the words are clear, they should be given the same interpretation wherever they appear.

The committee therefore concluded that it was unpersuaded by the Government’s interpretation of “pursuant to” and found the argument that “pursuant to” in the opt-in protocol should be interpreted differently from elsewhere in the treaty equally unconvincing. The committee therefore called on the Government to reconsider their interpretation. That is the nub of the dispute that the committee had with the Government, although there were other issues, which I have briefly touched on.

I can deal with the remaining two issues that I raised rather more shortly. In chapter 7 of the report, the committee analysed six recent Court of Justice judgments. It also had the benefit of the opinion of the expert witnesses on Title V case law. It concluded in accordance with that evidence that the court’s approach to determining the legal base in the six cases we analysed did not differ from established case law and that the Government’s view that those cases do not have an impact on their opt-in policy lacks credibility. The committee thought that they clearly did.

In the course of the evidence, we heard rumours, particularly from the then Lord Chancellor, Mr Grayling, that the Commission in its choice of legal base was actively trying to subvert the opt-in. However, when the evidence was produced, it was less than convincing. The committee concluded that,

“the Government’s letter of 21 January provided no persuasive evidence of Commission circumvention of the UK’s opt-in rights. There is certainly no evidence to support any allegation that such circumvention is systemic”.

In only one case—the draft PIF directive—did the Government, in the committee’s view, provide some evidence that lent some support to this allegation. We should not forget that in that specific case the Government appealed to the Council, the Council agreed with the Government, and the legal base was changed to Title V.

To sum up the situation, it seems to me that the Government have just got it wrong. I am not wholly convinced that the advice given to the Government by their legal advisers was designed to express their view of what the law really is. When I joined the Foreign Office many years ago, I was told that the function of government legal advisers was not to tell me what the law was, but to tell me what legal arguments were available for me to use to justify the policies that I wanted to pursue. There is nothing wrong in that, except that it deserves to be recognised for what it is. The Government’s lawyers have indeed produced some arguments. I do not find them convincing, and nor did the committee. I hope the Government will change their position. They certainly should.

--- Later in debate ---

[Lord Faulks]

I am grateful for that clarification—a difference between the view expressed by the noble Baroness, Lady Ludford, and that expressed on the part of the Labour Party by the noble Lord, Lord Tunnicliffe.

The United Kingdom’s and Ireland’s justice and home affairs opt-in has been in existence for civil justice, asylum and immigration measures since 1997. It was extended to policing and criminal matters with the Lisbon treaty, which came into force in 2009. The intention was to allow the United Kingdom to protect its specific interests, such as the common law legal system and border controls, while retaining the ability to take part in EU justice and home affairs measures where that was in the national interest.

The noble Baroness, Lady Quin, asked whether the JHA opt-in has proved an effective safeguard. I note that her committee expressed no view as to its desirability—expressly so—but she posed that question and asked whether it was an important or even an essential safeguard. I can tell the Committee that it has been used on numerous occasions to protect the United Kingdom from being required to participate in measures which might adversely affect our border controls or our fundamental legal principles. However, the debate with which we are concerned is essentially about the scope rather than the utility of Protocol 21.

The areas covered by Title V of Part Three of the treaty include some of the most sensitive for us as a nation: immigration and border controls, policing and criminal law. The United Kingdom also retains an ability to opt out of measures that build on the Schengen acquis. The UK takes part in police co-operation and judicial co-operation aspects of Schengen but does not participate in any aspects of the acquis relating to border controls. The Government have not applied to join the Schengen provisions on visas and border controls and have no intention of doing so. Any such move by a future Government will require a referendum, thanks to the 2011 Act. I know that that measure was opposed during its progress through this House, but I now understand that it is part of Labour Party policy that there should be a referendum in those circumstances. I shall not go into more detail on the Schengen opt-out, as that has not been the focus of today’s debate.

Protocol 21 was included in the treaties to make sure that any new proposal that was presented “pursuant to” Title V would not bind the United Kingdom unless it chose to be so bound. However, it is the Government’s view that the drafting of the treaty has created a lack of agreement about when the United Kingdom is able to exercise these rights—whether it is necessary for there to be a Title V legal base cited on the face of a proposal or whether it is where the EU’s competence to act flows from Title V, regardless of the legal base cited.

The noble Lord, Lord Richard, rightly focused on “pursuant to” and what he said was a pretty unambiguous interpretation of those words. Of course, the treaty could have said “under” rather than “pursuant to”. As he and the Committee will know, in the government lawyers’ view, “pursuant to” is capable of interpretation rather more broadly than many, or even most, of the academic lawyers who were called before the committee said.

I recognise that the approach of the previous Government—I know that the noble Baroness, Lady Ludford, distanced herself from the previous Government, although it was a coalition Government—is not shared by others, and that it created some challenges. But it is important to recognise that we do not have a definitive legal view on which interpretation is correct. While I accept that the European Court of Justice has taken some decisions on what is or is not JHA content, it has not set out definitively whether the opt-in applies in the absence of a legal base. Unless and until it does, the Government and others must work according to their interpretation of the treaty. I respectfully suggest that describing the Government’s approach as capricious is a little harsh.

The report on which today’s debate has centred helpfully sets out some of the issues flowing from this lack of agreement. These can be very complex and challenging, and the Government must decide on the basis of the evidence before them—

[Lord Richard]

Before the Minister leaves “pursuant to”, if he looks at the French version—“en application de ce titre”—it is impossible to claim that those words mean merely “following on from” without a definitive link. It is quite clear that the French text, which I imagine expresses the substance of the argument, refers to the application of Title V. In those circumstances, how can he claim that “pursuant to” means something totally different?

[Lord Faulks]

The French and German interpretations are also referred to in the committee’s report. Of course, the protocol has to be read as a whole on what its intention was. While I do not want to weary the Committee with the evidence that was given by government lawyers, the noble Lord will recall, no doubt, the fact that Article 1 should be read in the context of Articles 2 and 3. Indeed, I remind him of what John Ward said in his evidence to the committee, when the then Secretary of State for Justice and the Home Secretary gave evidence. He said, in answer to a question from the noble Lord, Lord Elystan-Morgan, that,

“I think it is important that the words ‘pursuant to’ need to be read in the context of Protocol 21. Protocol 21, we say, is different because of the particularly sensitive nature of justice and home affairs matters. But it is clear, looking at the context of the rest of the treaty, that it is fully recognised that justice and home affairs matters are difficult and sensitive, which helps to interpret Protocol 21”.

[Lord Faulks]

Of course, I do not dispute the evidence that the committee heard. The argument that was used in the course of the questioning by the noble Lord, Lord Elystan-Morgan, was that we should be looking at the natural, ordinary meaning, which is the traditional way of interpreting a statute in British law. A purposive interpretation would admit a rather broader interpretation of what the protocol was intended to achieve in terms of the opt-in and opt-out.

These are deep legal waters, and we could spend a great deal of time debating this. I accept that the preponderance of legal opinion was against the government interpretation, but I respectfully refer the Committee to the fact some of the difficulties were acknowledged by the committee in the course of its evidence—not, I accept, specifically to deal with the “pursuant to” aspect, but to do with the choice of legal basis. Paragraph 119 of the committee’s report states:

“Dr Bradshaw said that the Law Society had no insight into the Commission’s thinking, but noted that the choice of legal basis was ‘a matter of profound disagreement on occasion, not just between the EU institutions and the member states, but also within and among the EU institutions’”.

Indeed, the conclusions of the committee at paragraphs 184 and 185 were:

“We agree with witnesses who have suggested that the CJEU’s approach to determining the legal base of international agreements means that the complexity of an agreement is not always reflected in the resulting choice: it renders somewhat invisible the ancillary or secondary objective, including ancillary or secondary JHA objectives. We understand why this would cause concern to the Government”.

[Lord Richard]

Will you read the next paragraph?

[Lord Faulks]

I was going to do that very thing.

“Nevertheless, this does not, in our view, amount to a deliberate undermining of the safeguards in the opt-in Protocol. We note that for internal EU measures on JHA policy, the opt-in Protocol is a very effective safeguard for the UK”.

I note that in the course of the debate there has been a very firm disavowal that there was any deliberate intention by the Commission to, as it were, get round the Title V question, but there is an acknowledgement that it may not always be easy to choose the correct title.

The most recent annual report on the application of the JHA opt-in and the Schengen opt-out, which was published in February 2015, shows that the previous Government took 33 decisions under the two protocols during the period between December 2013 and the end of November 2014. Thirty-one of them were taken under the JHA opt-in. Of those 31 decisions, 18 applied to proposals which did not cite a Title V JHA legal base. They included a directive on customs infringements and sanctions, a decision establishing a European platform to enhance co-operation in the prevention and deterrence of undeclared work and several third-country agreements which created legal obligations in the JHA field.

These are all examples of legislation with a JHA impact on the UK that did not cite a Title V legal base. If unsuccessful in changing the legal base, these are the types of cases where a change of approach might mean that the UK cannot exercise its right not to be bound.

The Government are committed to considering carefully any changes to their approach to the opt-in to ensure that we can lawfully exercise the UK’s right under the treaty to protect our national interests by retaining control of our policing, justice and immigration systems. The committee’s detailed report has given the Government a great deal to consider. We do not believe it is in anyone’s interest to rush the process of responding to it, although of course I take on board the criticism that has been made of the delays.

The Government have sought to ensure that the committee and Parliament are kept updated and sighted on developments in individual cases and the policy as a whole. As was acknowledged in the debate, the Justice Secretary and the Home Secretary wrote recently to the committee to let it know that this subject is still under consideration and that the Government would provide a response to the committee shortly. That raises the question of what “shortly” means. I am afraid that the answer is that it will not be until after the Recess. I know that there has been regret about that, but it is important that the content of this detailed report, and indeed of the debate, are fully taken on board by the new Government.

The noble Baroness asked about one particular issue which also forms part of the conclusions—whether we should be thinking of an inter-institutional agreement. I think the noble Lord, Lord Dykes, asked questions about that in the course of the evidence. It is something that will certainly be considered. When the Government have concluded our consideration of the policy as a whole we will take forward such engagement as is appropriate.

The issues relating to the protocol are complex and technical, and go, as I am sure the Committee will accept, to issues of sovereignty in the very sensitive areas that JHA co-operation deals with—policing, criminal and civil law, and immigration and asylum. As the noble Lord, Lord Tunnicliffe, said, the JHA opt-in is extremely important to us.

We note what has been suggested about the litigation strategy. That is something that will be taken very carefully into account.

The Government are concerned, of course, to reflect the protection that the opt-in gives the United Kingdom on these important areas. We will consider carefully our approach to that. The process is not yet complete and we believe, as I have indicated, that we should take time to get it right.

The debate as to the proper approach and whether it should vary from that taken by the coalition Government will be influenced very much by the careful consideration by the committee and the evidence that it called for, which is well summarised by the report. I am grateful for all the contributions to this debate.