EU: Justice and Home Affairs

Lord Rowlands Excerpts

Wednesday 22nd June 2011 Grand Committee

[Lord Rowlands]

My Lords, I welcome this first report of the application of the protocols. In doing so, it might be helpful to remind ourselves how these procedures and processes came about in the first place.

I had the good fortune to be a member of the Constitution Committee that considered and scrutinised the last European Union Bill in which the Government proposed these protocols. We heard a great deal from the Government about the strength of these protocols, how cast-iron these opt-outs were, and that they represented—as many Members will remember—the famous red lines that had been drawn around them. The committee kept asking one simple question: what if future Governments, of any side or character, decide to accept the opt-ins and therefore remove some of the red lines that have been drawn around the protocols? We asked what the procedure would be if the Government made this decision, what the form of scrutiny would be, and what sort of approval would be required. The Government of the day had rested their case on the strength of these protocols, which was partly why they claimed there was no any need for a referendum at the time.

The Constitution Committee, of which I was a proud member, felt so strongly about these matters that it took the rather unusual step of producing almost a committee amendment to the European Union Bill to try to establish processes for the approval and scrutiny of opt-ins. I recall that debate very well, because it raised considerable interest in a number of areas of the House and led to negotiations and discussions with the European Union Committee, the Constitution Committee and the noble Baroness, Lady Ashton, and to the procedures we are now partly using.

In fairness, I remember the noble Baroness telling us that we would be surprised by the sheer number of opt-in proposals. Many of us thought that there would be just a handful dealing with fundamental issues. She frequently reminded us that there would be more than we thought and that they would be diverse and often of a technical nature. As a member now of Sub-Committee E, my experience—and I am sure the experience of other members of that committee—shows that her case was valid. We have had something like 20 opt-ins in the last 12 months and are faced with another large collection in the next 12 months. I have found it rather difficult, and I do not know whether other members of those committees also feel this, because of the diversity and sometimes technical nature of the opt-in proposals and directives to establish some common criteria to decide whether or not there should be an opt-in. As the Minister has said, one ends up taking a case-by-case approach, applying common sense and asking whether co-operating, by opting-in, would help to enforce the better administration of certain aspects of justice.

I have come to the conclusion at various times in the last 12 months that it was right to opt in on issues such as human trafficking, combating sexual abuse, the exploitation of children and child pornography, because there is an advantage to having a European approach here. I have been less keen on the road safety directive, which has not proved its cost-benefit potential. I have certainly found in the case of succession that the idea of a succession certificate goes far too far. Our whole notion of succession is very different from that of most of the rest of the continent. There is a gulf larger than the Channel in respect of succession, and I suspect that that gulf will also arise in issues of matrimonial property. Therefore, like everyone else, one takes this case-by-case approach. We are going to be faced in sub-committee with at least another dozen within the next 12 months.

That raises a more general point, which the Minister herself touched on: when one uses a case-by-case approach, one tries to apply the simple common-sense test to the decision or directive that has been proposed, but one should be vigilant and mindful of the cumulative effect of opting in. If we opt in on an increasing number of cases, where will those red lines be that the previous Government drew such attention to? We might see, without necessarily recognising it, an erasing of those red lines. The House and its committees should seriously consider the cumulative effect over a period of the opt-in issues that arise.

I have also been increasingly concerned that many of these opt-in issues raise problems of centralising data on a much wider basis. As someone who, when on the constitutional committees, helped to write a report on the surveillance society, I think that one should be conscious and vigilant that many of these opt-in proposals are associated with the collection of data in increasingly centralised circumstances. I therefore hope that on these issues our House and committees will remain vigilant on the vital issue of opt-ins.