EU: Justice and Home Affairs

Lord Rosser Excerpts

Wednesday 3rd July 2013 Grand Committee

[Lord Rosser]

My Lords, I, too, thank the Minister for introducing this debate and express my thanks to all who have participated with their considerable experience and knowledge—which I do not mind admitting is somewhat greater than mine—and not least my noble friend Lady Corston, who explained the work and views of her committee on certain key issues and referred to the code of practice. From current personal experience, I certainly share the view of the noble Lord, Lord Boswell of Aynho, on the difficulty of getting to grips with the detail of this report.

As the Minister said, this is the third annual report to Parliament on the application of Protocols 19 and 21 on the Schengen opt-out and justice and home affairs opt-in respectively. Once again, the reports arise from the previous Government’s commitment in 2008 to strengthen parliamentary scrutiny of the justice and home affairs opt-in, part of which was an undertaking to provide Parliament with and make available for debate an annual report that both looked ahead to the Government’s approach to EU justice and home affairs policy and forthcoming dossiers, including in relation to the opt-in, and provided a retrospective annual report on the UK’s application of the opt-in protocol. Annexe 1 of the report in front of us sets out all the JHA opt-in decisions and Schengen opt-out decisions taken from December 2011 until the end of November 2012. Annexe 2 outlines legislative proposals which are expected to be brought forward in the current year and will require a decision on UK participation under the justice and home affairs opt-in protocol.

One of the legislative proposals mentioned in Annexe 2 is the proposal for a regulation on the European Union Agency for Law Enforcement Co-operation and Training—Europol—about which, as has already been noted, we had a debate on Monday in the context of the European Union Committee’s report on the UK opt-in to the Europol regulation. At the end of the debate, the House agreed with the committee’s recommendation that the Government should exercise their right to take part in the adoption and application of the proposed regulation. Whether that will have any impact on the Government’s decision remains to be seen, since it is not unknown for internal party considerations to play a part in determining this Government’s approach to any matters European. The Minister told us on Monday that the decision on whether to opt in to the Europol regulation was “finely balanced”. Can he say which of our law enforcement agencies feel that we should not opt in to the regulation?

Annex 2 sets out a number of other proposed measures. Any specific update from the Minister on the situation in respect of some or all of those proposals would be helpful, in particular on whether any decisions have actually been taken. My noble friend Lady Smith of Basildon asked him, in the debate on the Europol regulation on Monday, how many measures were awaiting an opt-in decision by the Government and whether any have been delayed because of the decisions regarding the opt-out, to which reference has already been made.

There is one other issue I would like to raise from what was said on Monday. If memory serves me right, it was the noble Lord, Lord Hannay of Chiswick, who referred to a European surveillance order in which the Government do not have an opt-in or opt-out. They have simply failed to implement a piece of European legislation that they agreed to and which came into force throughout the European Union in December last year. What is the Government’s position on that order, which provides the possibility for someone who is subject to a European arrest warrant to be bailed in their own country?

The Government have sought to argue in this report that decisions taken in relation to the JHA opt-in and Schengen opt-out protocols are separate from the 2014 opt-out decision under Protocol 36 to the European Union treaties. However, that argument does not really hold water. As was pointed out in Monday’s debate, if the measure is a police and criminal justice measure that was adopted before the Lisbon treaty entered into force in 2009, deciding to opt in to that measure or a variation of it, or deciding not to opt in to a variation of it but to seek to influence it from the outside, would be completely nullified if we then decided to opt out of all those measures under Protocol 36. Perhaps the Minister will tell us which of the measures on which decisions were made to opt in between 1 December 2011 and 30 November 2012 as set out in Annexe 1 of the annual report would cease to apply to the UK if we made an opt-out decision under Protocol 36. Likewise, if we decided to opt in to all the proposals in Annex 2, or not opt in but seek to influence them from the outside, which of those measures would cease to apply to the UK if we made an opt-out decision under Protocol 36? If the Government decided to opt out under Protocol 36, no one knows which measures, including the European arrest warrant, we could subsequently get agreement to opt back in to or, if we could, on what basis or terms. All 130 measures were agreed by unanimity under a system where the UK had the veto, and not a single one of them was foisted on the UK against our will.

The noble Lord, Lord Boswell of Aynho, referred to the Europol regulation. I know it is only two days after the Minister was asked about it on Monday, but can he now clarify the Government’s position, including when the debate on the government Motion on the decision on the Europol regulation, postponed from today, will take place?

I shall conclude with a few specific questions on the report. On page 26, the Government have not opted out of parts of Schengen, such as the Schengen information system second generation. I understand that we will be connected in the fourth quarter of 2014. If we exercise the block opt-out, we will be leaving all pre-Lisbon parts of the Schengen acquis. What does that mean as far as the decision not to opt out of the Schengen information system second generation is concerned? On page 6, reference is made to the directive on the protection of the financial interests of the EU against fraud by means of criminal law. The report says that the Treasury will provide an update as soon as possible. If that has not already happened, when is it likely to happen?

Page 10 refers to the trade agreement between the EU and Colombia and Peru. I am genuinely not entirely sure what the current position is. Has that agreement been concluded? Was there an undertaking, as has been suggested to me, by the Government that there would be a vote in both Houses on the trade agreement between the EU and Colombia and Peru? Page 13 refers to passenger name record sharing with the USA to which the Minister referred in his opening comments. How is that operating and how effective is it proving to be? Page 16 refers to the asylum and migration fund. How would this be affected if we exercised the blanket opt-out? How much of an effect would an opt-out have on the UKBA’s resettlement activities?

Finally, page 23 refers to the confiscation of the proceeds of crime in the EU; once again, the Minister referred to this issue in his opening speech. Have any problems arisen subsequently as a result of not opting in? I appreciate that the Minister is unlikely to have all the information immediately to hand to respond to my detailed points; I mean that—I would be amazed if he did. However, I would nevertheless appreciate a response at not too late a stage.