Justice and Home Affairs: United Kingdom Opt-Outs

Lord Sharkey Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Sharkey (LD)]

My Lords, I have the privilege of being a member of your Lordships’ EU sub-committee dealing with home affairs, health and education. The issue of the opt-out and opt-ins has been of concern to the committee and to the House for some time. I have lost count of the exact number of meetings, evidence sessions, witnesses, reports and debates that have addressed the issue of Protocol 36, but I do know that on 23 July last year this House debated and approved the Government’s then list of 35 JHA measures they proposed to rejoin. In our debate on the opt-out and opt-ins on 23 January this year, I repeated that I still thought that the Government’s selection of those 35 measures was both well chosen and coherent. I also repeated, as I do again now, that I thought that the whole exercise was completely unnecessary. In that debate, along with other noble Lords, I urged the Government to add a further four measures to the list of 35.

As has already been said by the noble Baroness, Lady Prashar, these were the framework decision on combating certain forms of expression of racism and xenophobia by means of criminal law, and rejoining the European Judicial Network, the European probation order and the international convention on driving disqualification. I also noted that there were other technical measures that the Government would probably have to rejoin in order to properly implement Europol council decisions.

While the set of rejoin measures before us today, as we have heard, is not the same set as we debated in January, there are still 35 measures on the list. However, this is a coincidence and it is mildly confusing. This is because, essentially, five measures from the original list have been dropped and five new measures have been added. At least, I think that that is the case. The documentation on all this is very far from straightforward. The Home Secretary herself, in the Commons debate last week, was momentarily uncertain about the status of certain measures.

Command Paper 8897 is not a lot of help. Other noble Lords have remarked on its lack of a table of contents, the lack of an index to the impact assessments, and to their apparently random ordering. Of the five new additions to the list, three appear to be technical measures necessary for continued participation in the Europol decision, which is what we expected. One new measure is also technical or quasi-technical, and this is to do with the requirements for the Schengen Information System II, and is wholly unobjectionable. In fact, it is welcome. The final new addition is the rejoining of the European Judicial Network. Your Lordships have argued strongly for this in the past, and I am very pleased to see it reappear.

Five rejoins were proposed in January which have now been dropped. They included two that have been “Lisbonised”, or in other words amended, repealed or replaced by post-Lisbon measures. One further missing measure is the setting up of a network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes. However, as the Minister has said, this has been replaced by the inclusion of the measure to join the European Judicial Network.

One final missing measure is the improvement of co-operation between special intervention units of member states in crisis situations. The Government wanted to rejoin this measure, but would not do so if this involved participating in the Prüm decisions, as the Commission asserted that it did. As the noble Lord, Lord Taylor of Holbeach, has already said, the Home Secretary made it clear in the House of Commons that we have neither the time nor the money to implement Prüm by 1 December. She said that it would be senseless for us to rejoin it now and risk being infracted. I agree with the last part of this, and I am glad that the Government have agreed to run a small-scale pilot to test the implications of running a fully Prüm-compliant system.

However, all this does raise a question. We wanted to rejoin the special intervention measures because we thought it was in the national interest, but now we are not going to. Can the Minister explain what we lose as a result? What is the damage or loss to our national interest as a result of not joining the measure which they set out to join? In this exchange of five measures in and five measures out, the Government have not included three out of the four additional measures recommended by our committees. They have not included the racism and xenophobia measure, nor the absolutely uncontroversial and very sensible international convention on driving license disqualification. Very disappointingly, they have also not included the European probation order.

In the debate in the Commons, the Justice Secretary repeated his commitment to looking again at the measure when there is enough evidence of it working, to see whether or not there would be benefits to the UK in taking part. He also committed to publishing an assessment of the potential impacts of taking part. This is not what the committee proposed, but at least it will keep the issue alive. The debate in the Commons is also instructive for other reasons. There were 23 speakers in all, 18 of whom were Conservatives. The debate reads very like the recording of a rather bitter family disagreement.

All this confirms my view that the whole enterprise has been a sad waste of time. The Government have provided no evidence that any of the measures they are opting out of is in the least harmful to the United Kingdom, and they have declined to produce impact assessments for any of these measures. That does raise the question of why they are bothering. Some commentators have said that the whole exercise has been designed to satisfy Tory Eurosceptics in the House of Commons, but if you read last week’s debate that certainly does not seem to have worked out very well.

It is not only the absence of any evidence of harm in the opt-outs that is disappointing. There is a new absence that is even stranger. In evidence to our committee, the Justice Secretary relied heavily on the possibility of unexpected judgments from the ECJ as a reason for opting out of the list of measures. I have carefully read the impact assessments in the Command Paper, and there is no mention anywhere in any of them of the possibility of adverse or unexpected rulings by the ECJ. Can the Minister explain why this rationale for opting out does not appear in the impact assessments? Do the Government now believe that the possibility of unexpected ECJ rulings is not a reason for opting out of the measures?

Finally, there has been sharp criticism today of the process the Government have adopted in dealing with Parliament on this whole matter of Protocol 36. I do not propose to repeat all that criticism—although I have already noted the unsatisfactory nature of the latest Command Paper—but I will say that I am glad to see the current list. I am glad to hear the Justice Secretary repeat his promise to the House of Commons of a vote on a finalised list. When the Minister replies, would he reassure us that that this commitment also extends to this House?