Justice and Home Affairs: United Kingdom Opt-Outs

Lord Stoneham of Droxford Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Stoneham of Droxford (LD)]

My Lords, I am pleased to be speaking in this debate primarily on behalf of the noble Baroness, Lady Corston, who chairs the European Justice, Institutions and Consumer Protection Sub-Committee, of which I am a member. She very much wanted to speak today, but because of the short notice of the debate, unfortunately that did not prove possible.

Before I speak on behalf of the committee, however, I would like to make several personal remarks. This House has debated the 2014 block opt-out on numerous occasions—most recently in May—and I do not intend to return to the wider questions raised by this issue, except to say that although it has been a rather convoluted process to get where we are, and there have been several slip-ups on the way, in terms of providing information, we have largely arrived at a reasonably acceptable situation.

After reading the debate in the other place on this subject the other week, I think I should perhaps even congratulate the Secretary of State for Justice and the Home Secretary on dealing with the political problems on their own Benches in the Commons. In fact, I hate to think what would have happened if the disciplines and the support of the coalition had not been in place.

Protecting our involvement in the European arrest warrant is all-important. Clearly some reforms were required to improve its working, but it is fundamental to our criminal justice system, and a classic example of where concessions on our own national sovereignty have to be used to pursue our wider national interest and get control of situations where we would otherwise be powerless. It is also clear from our discussions that those who hope that a replacement of the European arrest warrant by a bilateral treaty would be a way of getting around the jurisdiction of the European Court of Justice will be disappointed. As we know, Denmark has been required to submit to the jurisdiction of that court as a condition of the agreement and the treaty with the European Union.

Our own committee’s opinions on these matters have been clearly expressed in the two reports that we undertook with our colleagues on the Home Affairs, Health and Education Sub-Committee, which is now chaired by the noble Baroness, Lady Prashar. There are, however, three questions relevant to the Motion before the House today that I wish to put to the Government.

The first concerns a clear difference of opinion. Both the reports undertaken by the two sub-committees on the Protocol 36 decision recommended that the Government opt in to the framework decision on probation decisions and alternative sanctions; the measure is often referred to as the European probation order. The UK has not implemented it. The European probation order provides a basis for the mutual recognition and supervision of suspended sentences, licence conditions and alternative sanctions such as community sentences, where an individual has been sentenced in one member state, but is ordinarily and lawfully resident in another—or where someone wishes to go to another member state and that member state is willing to supervise the sentence.

The two sub-committees had no doubt that this measure had the potential to provide benefits for the management of offenders on a cross-border basis, and that the Government had nothing to gain by not implementing its provisions. During our inquiries, the Government told us that they had concerns about the proper implementation of this matter, and we therefore suggested that these should be resolved at a European level, in the interests of all participating member states. In their formal response to the second of our reports, the Government said that they had looked at this measure “carefully” and that, although they supported the principle behind it, they did not consider,

“that its benefits outweigh its risks”.

In the Government's view, the main risk lay in the fact that the proposal would allow,

“different practices amongst Member States ... in the event of a breach of a Community Order”.

Some states would approach such a breach domestically, while others would return the individual to the issuing state.

I note that the European probation order is not among those measures that the Government will be seeking to rejoin. Can the Minister therefore tell the House what steps were taken, in discounting this measure, to resolve the Government's concerns with other member states on the operation of the proposal? What is the timetable now for the Secretary of State, in the other place, to say that the Government will look at this matter again in due course? What will be the timing of the assessment that they plan to make?

This question leads me to the second issue I wish to raise today—the quality of Command Paper 8897, which the noble Lord, Lord Boswell, has already referred to. Leaving aside the generally poor standard of the document, which has already been addressed, but drawing again on the example of the European probation order, I am minded to ask the Minister how he believes that members of the relevant European sub-committees tasked with advising the House on European matters are supposed to assess the individual merits of opting in to such a measure—or not, as the case may be—when we have not been furnished with the impact assessment detailing the ramifications of the probation order.

Finally, the third matter that I will address takes me back to the European arrest warrant. Members will be aware that this is one of the 35 measures that the Government have chosen to opt back in to. In March, Royal Assent was given to the Anti-social Behaviour, Crime and Policing Act 2014. This wide-ranging Act included provisions that amended the Extradition Act 2003, which in turn gives effect in the UK to the framework decision introducing the European arrest warrant. The 2014 Act introduced a proportionality test into the operation of the European arrest warrant in the UK. Can the Minister confirm that the provisions of the 2014 Act dealing with the European arrest warrant are compatible with the framework decision, and that the 2014 Act will not, once the UK opts back in to the European arrest warrant, give rise to infringement proceedings by the Commission?