EU Police and Criminal Justice Measures: EUC Reports

Lord Sharkey Excerpts

Thursday 23rd January 2014 Lords Chamber

[Lord Sharkey (LD)]

My Lords, I congratulate the noble Lord, Lord Hannay, on his incisive and analytical opening speech. It is a privilege to serve under his chairmanship on your Lordships’ EU Sub-Committee F. I do not intend to dwell on the rather convoluted chronology of these two reports and the Government’s responses to them. I intend to focus my remarks on the second, rather than the first, report.

However, in dealing with the first report and the Government’s response to it, I simply remark that its conclusion that the Government had made no compelling case for opting out still seems very strong. The Government’s given reasons for opting out still seem unconvincing. I also note that the Government have been less than punctilious in their dealings with the House over the first report. In particular, I point to the extraordinary delay in producing the Explanatory Memoranda, and the fact that the Government’s response was produced one month late, and only hours before the debate on the government opt-out/opt back in Motion. The debate on that Motion on 23 July produced a kind of clarity. As I said in that debate, I thought that the Government’s selection of 35 items to opt back into was well chosen and coherent. I still think that that is the case, just as I still think that whole exercise was completely unnecessary.

The 95 items that the Government have chosen, for the moment, not to opt back into are all harmless, and some are of real value to the UK. As the noble Lord, Lord Hannay, said, the Government have presented no case that any of these items operates against our interest or does any damage. However, we are where we are, and I want to address the remainder of my remarks chiefly to the government response to the committee’s second report.

In particular, I want to focus on some of the measures that we recommended be added to the Government’s list of 35 opt-ins. There are four of these, which have already been mentioned by the noble Lord, Lord Hannay, and other speakers. The first is the framework decision on combating certain forms of expressions of racism and xenophobia by means of criminal law. The UK has long been a leader in this area. Failing to opt back in would abandon that leadership and would send out a completely wrong signal about our commitment in this area. The Government’s reasons for not opting back in, put simply, amount to, “I’m all right, Jack”, with no real acknowledgment of loss of leadership and reputation.

The second measure is the rejoining of the European judicial network. Everybody except the Government seems to think that we should rejoin. The Law Society of England and Wales, the Law Society of Scotland, the Lord Advocate and others all thought that it was a useful measure. The Government’s reasons for not rejoining amount to a recognition that the contact points the network provides are “undoubtedly helpful” but,

“it may be possible to maintain those contacts without formally participating in this Council Decision”.

Why leave a system that works and causes no harm in order to rely on an informal equivalent? It is not a very strong argument.

The third measure is the European probation order. Our report said that we believed that,

“this measure has potential to provide benefits for the management of offenders on a cross-border basis and that nothing is being gained by not implementing its provisions”.

The Government continue to decline to opt back in. Their reasons are to do with the implementation, and with allowing the ECJ to have jurisdiction. We are of the view that the first of these objections—implementation—could be overcome by negotiation at a European level, and the second amounted to an almost irrational fear of the ECJ.

The fourth measure is the convention on driving disqualifications. This enables member states essentially to prevent a driver banned in one member state from driving in another. As the Government acknowledged, our report contains strong evidence of the importance of this measure in supporting co-operation with the Republic of Ireland. However, that is apart from its clear, common-sense benefits in a more general way. Instead of rejoining the measure, the Government propose to establish a separate bilateral treaty with the Republic of Ireland. This is surely a very odd way to go about things when there is a perfectly satisfactory mechanism already on the table.

I have not included in this list of four measures the measures implementing Europol council decisions, which fall within the scope of the block opt-out. The Government still decline to opt back in to these, but in this case not very convincingly. It is reasonably clear that if they have to do so in order to pass the test of coherence, then they will in fact rejoin these measures. This makes it rather odd that they did not agree to do so in the first place.

I strongly urge the Minister to consider rejoining the four measures about which I have spoken. As part of that consideration, I urge him to publish the impact assessments of all the 130 measures which are at issue, as was said by the noble Baroness, Lady Corston. These impact assessments must surely already exist, and must have formed a part of the Government’s thinking. The Government should share them with Parliament without further delay. It is very important that we take forward discussion of the opt-in measures with all the evidence and assessments being made available to us here in Parliament. I hope that the Minister agrees.