EU: Justice and Home Affairs

Lord Rosser Excerpts

Wednesday 22nd June 2011 Grand Committee

[Lord Rosser]

My Lords, the Minister has set out the background to the report that we are considering. As she said, Protocols 19 and 21 to the Treaty on European Union and the Treaty on the Functioning of the European Union govern our participation in European Union measures on justice and home affairs. Under Protocol 21, we can, within a laid down three-month period of a proposal or initiative being presented, decide whether we wish to be covered by such measures on justice and home affairs. If we do, we cannot then opt out at a later date. Under Protocol 19, we can also request to take part in some or all provisions of the Schengen acquis.

As the Minister has said, the report that we are considering today follows a commitment given by the then Government in 2008 to make an annual report to Parliament on the application of the opt-in protocol over the period covered by the report and on the Government’s approach over the coming period to EU justice and home affairs policy, including the application or otherwise of the opt-in.

The report before us covers the 12-month period since the Lisbon treaty came into effect at the beginning of December 2009. As other noble Lords have done, we welcome the report and the fact that the Government have decided to adhere to the commitment to produce such a report, which was given by the then Leader of your Lordships’ House, my noble friend Lady Ashton of Upholland. The commitments made by the then Leader of the House also included arrangements to ensure that the European Scrutiny Committee of this House and the European Scrutiny Committee in the other place have sufficient time to undertake their valued and valuable role of expressing a view to the Government on whether the United Kingdom should opt in to a proposal or not.

A commitment was also given, as has been said, by my noble friend Lady Ashton to produce a code of practice on the scrutiny of opt-in decisions. Will the Minister indicate, as the noble Baroness, Lady Falkner, did, when the code of practice is likely to be finalised?

I believe an undertaking was also given that, in order to ensure that the enhanced security measures were working effectively, there would be a review of the arrangements three years after the entry into force of the Lisbon treaty. It would be helpful if the Minister could say whether it is the Government’s intention to undertake that review at the appropriate time.

The report we are discussing sets out the 23 justice and home affairs decisions taken under the JHA opt-in protocol and the Schengen opt-out protocol during the 12-month period covered by the report. Inevitably, the report does not give an up-to-date picture, since we are discussing a report that was presented to Parliament last January and the situation has changed in respect of at least some of the matters mentioned, for example on human trafficking. I join other noble Lords in expressing the hope that it may prove possible to have this debate rather nearer the date of publication of the report in future years. Perhaps the Minister could comment on whether this can be achieved.

I do not wish to repeat the thrust of debates that have already taken place on individual measures and proposals referred to in the report. However, there is a section in the report on legislative proposals that it is expected will be brought forward in 2011 but which are likely to require a decision on UK participation under the JHA opt-in protocol. Bearing in mind that the report is dated January 2011, is the Minister able to say whether the list in the report of expected legislative proposals for this year is still accurate?

In the paragraphs on their approach to European justice and home affairs, the Government state that they recognise that co-operation on justice and home affairs can deliver key benefits, helping us to tackle cross-border crime and to enhance the UK’s security, as the noble Lord, Lord Bowness, pointed out. The paragraphs also refer to the Government’s belief in the importance of practical co-operation on asylum policy within the EU.

As I understand it—I may be wrong and if I am I am sure I will be corrected—in around three or four years’ time the Government can decide to accept European Court jurisdiction over justice and home affairs. If we did, it would mean that we kept the opt-in on matters such as the European arrest warrant and returning asylum seekers back to the country from which they came. Alternatively, the Government can refuse European Court jurisdiction over justice and home affairs, which would mean that we would have to opt out of the kinds of matters, such as the European arrest warrant, that have helped lead to the arrest of people involved in bombings, and we would also have to opt out of the provisions on returning asylum seekers to the country from which they came.

Will the Minister say whether the Government are now considering this issue and what the decision should be, and whether, if we did refuse European Court jurisdiction on justice and home affairs, or indeed if we accepted European Court jurisdiction, the Government would deem that either one or both of those alternatives was a change in the treaty necessitating a referendum?

--- Later in debate ---

[Baroness Browning]

My Lords, I think that the noble Lord is trying to seduce me into setting out the wording of a decision that has yet to be made, and I am not in a position to do that. Therefore, I am sorry to disappoint him but, as I understood it, his initial concern was about whether the important commitment to both Houses remains good. It certainly does.

The noble Lord, Lord Rosser, asked about forthcoming decisions. I am going to read out a very short list and I assure the Committee that I shall not take up too much time in doing so. Forthcoming decisions—ones that are about to be published and will require an opt-in decision—include: the directive on the rights and support of victims of crime; the European protection order civil measure; the recast asylum procedures directive; the recast asylum qualification directive; the EU/Australia PNR arrangements; the EU/US PNR arrangements; the EU/Canada PNR arrangements; the proposed regulation on the freezing of bank accounts in the European Union; and the proposal for a directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest. I hope that he will also find helpful the commitment I have given to the noble Lord, Lord Hannay, on the six-monthly updates. That information will be extremely helpful to the Scrutiny Committee and across the wider House. The noble Lord asked about the 2014 opt-out decision. I hope he feels that I have given a comprehensive answer to that point, which was raised by several other noble Lords.

[Lord Rosser]

I suspect that I may not get an answer to that, but I asked whether it was felt that either alternative would constitute a change in the treaty and would require a referendum: that is, whether the decision either to opt in or not to opt in to ECJ jurisdiction would be regarded as a change in the treaty and would require a referendum.

[Baroness Browning]

My Lords, I will need to write to the noble Lord on that important point. Our refusal or acceptance of ECJ jurisdiction does not constitute a change that requires a referendum. However, I will write to him explaining why that is the case. The noble Lord also asked about the need to renew the provision after three years following the entry into force of the security measures in the Lisbon treaty. I will also need to write to him on that matter.

I am most grateful to everyone who has taken part in this debate. In closing, I would like to take a quick look to the future. We cannot say with complete certainty exactly what proposals over the next year will require an opt-in decision. In the report, we have indicated what we expect to happen, based on work programmes and discussions with our European partners. We will try to update that with a six-monthly paper.

The Government have been very clear that they will take these decisions on a case-by-case basis, so I hope noble Lords will understand that it would not be appropriate for me to comment at this point on whether we will opt in to any particular new proposal that might be brought forward in the next few months. However, I can reiterate our commitment, as set out by the noble Lord, Lord Howell, in his Written Ministerial Statement of 21 January, to give Parliament as much opportunity as possible to comment on and influence future opt-in decisions. The Government take very seriously the commitments contained in that Statement to give Parliament more say in opt-in decisions. It is very important that we make these new arrangements work. I am grateful for the suggestions made in today’s debate, which we will take forward.

Between now and the Summer Recess we have decisions to make on recast proposals on asylum reception conditions and asylum procedures, on a directive on access to a lawyer and on a proposal regarding the rights of victims in criminal proceedings. Those issues are included in the list that I recited to the noble Lord, Lord Rosser. We await the views of the European Union Committee on those proposals and will report our decisions to both Houses. The next annual report, covering the period 1 December 2010 to 30 November 2011, will be laid before the House in due course. I will use every endeavour to ensure that there is not such a long gap between that report being laid and the opportunity for the House to debate it.