EU: Police and Criminal Justice Measures

Lord Taylor of Holbeach Excerpts

Tuesday 23rd July 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I am sorry about the noble Baroness’s unwillingness to support the Government on this Motion. If people say that there is no passion or conviction in British politics, they should have been listening to this debate, because it has shown that there is indeed a lot of passion and conviction on this issue.

Before I address the points that have been made during the debate, I join my noble friend Lord McNally in thanking the noble Lords, Lord Boswell, Lord Hannay and Lord Bowness, for their chairmanship of the committee, which produced a formidable body of work for the Government to consider, and its ongoing role in scrutinising this matter. The Government are appreciative of the committee’s high-quality and thoughtful report, which has been integral to the decision-making process behind our decision to table the Motion this evening. I look forward to working with the noble Baroness, Lady Corston, as chairman of Sub-Committee E.

The Government have today replied. Noble Lords have said that it is plenty late enough, but we have replied to the committee’s report on the matter. Copies of the reply are available and I am sure that a number of noble Lords have taken the opportunity to look at it. We would like noble Lords to consider it alongside the letter of 18 July, sent to the noble Lord, Lord Boswell, which can be found in the Library of the House.

To return to today’s business, I am grateful to the noble Lord, Lord Hannay, and to my noble friend Lord Bowness for meeting me yesterday. It was incredibly helpful to me personally, and the amended Motion that we have tabled reflects the outcome of these discussions. I hope that the whole House can support the government Motion. I would regret it if that were not the case.

On 9 July, the Home Secretary reaffirmed the Government’s intention to exercise the opt-out. Noble Lords will be aware of the background to the opt-out and there is no need to remind them of its origins. However, as I listened to the speeches from the Benches opposite, I wondered why, when they were in office, they negotiated the opt-out. They must have believed in it once, so what has happened to that belief? As my noble friend Lord Hodgson asked, why did they take such care to ensure that the Lisbon treaty contained this protocol, the provisions of which we now seek to exercise?

In the other place on 15 July, there was a debate on this issue and a vote to exercise the opt-out and rejoin the measures where it is in the national interest to do so. I am grateful to my noble friends Lord Sharkey, Lord Bowness, Lord Eccles and Lord Hodgson—and many other noble Lords—who said that they find the 35 measures that the Government seek to rejoin sensible. The noble Lord, Lord Williamson, also agreed that these were sensible measures for the Government to seek to rejoin.

I must reassure my noble friend Lord Blackwell that the Government have made a considered judgment on this issue. They are confident that, in using the test of the national interest, they have properly identified those 35 measures that they will seek to rejoin. These 35 measures listed in the Command Paper represent government policy. My noble friend and I will have to agree to differ about whether we are right to seek to rejoin those 35 measures.

It might help noble Lords if I explain what happens next. On that point, I must return to the question of scrutiny and the work of the European Union Committee. I think that all noble Lords accept that the European Union can play an important role in tackling cross-border crime. This Government understand that, but equally we understand that decisions taken at EU level, or about the EU’s role in dealing with crime, must be subject to rigorous scrutiny. That is only correct and the UK Parliament must be sovereign in exercising this scrutiny.

Scrutiny can be an iterative and long-running process, especially on a matter such as this. That is why today’s Motion from the Government invites the European Union Committee to give a further view on what measures it believes we should rejoin. I hope that Command Paper 8671, which sets out those measures that the Government believe are in the national interest to rejoin, provides a useful starting point. I hope sincerely that the House can endorse that list today, but let me be clear that any endorsement cannot pre-empt the work of either the committee here or the committees in the other place in looking at all the measures. I expect that that is the point at which the noble Lord, Lord Davies of Stamford, can apply his scrutineering endeavours, since he went through various measures on which he had comments to make. I expect our committee in this House to come back with a thorough examination of the Government’s decision and I look forward to receiving it.

However, I have to ask the House to note that the Government have committed to not beginning formal discussions with the EU institutions or other member states until November. That is to ensure that the committee in this House and the relevant committees in the other place have time to report. All the reports will be carefully considered by the Government. Further to that, noble Lords will know that there are methods whereby committee reports can be brought before the House for debate. I hope that those will be promptly exercised in this instance as I look forward to a prompt debate on our committee’s report.

[Lord Bowness]

My Lords, I am sorry to interrupt my noble friend, but while he is talking about process and procedure can he perhaps explain to me, if to no one else, the following? In the debate in the other place, my right honourable friend the Home Secretary said that the mandate that she was seeking that evening would lead to the UK exercising the opt-out. Precisely when is it envisaged that we will give formal notice to the Council of our intention? Is it to be after we have passed, if we do, the Motion tonight or will it be after there has been consideration of the reports by the relevant committees?

[Lord Taylor of Holbeach]

The Government do not have to give formal notification until 31 May, but the votes in this House and in another place provide authority for the Government to commence negotiations with the European institutions, which is why this debate is important. It provides an opportunity for those informal negotiations that will lead, post November, to formal negotiations with the European institutions. Perhaps I may turn—

[Lord Richard]

I am much obliged to the Minister. He says that this vote tonight is necessary so that negotiations can begin. Why is it that the House of Commons was not asked to endorse the Government’s view that the 35 measures were in the national interest, whereas in this House we have been asked to endorse that? Why is there that difference between the Motions that have been put to the two Houses?

[Lord Taylor of Holbeach]

Noble Lords conduct their own business in this House and I think that the Motions—

[Noble Lords]

Oh!

[Lord Taylor of Holbeach]

We have presented to noble Lords the Motion that we believe reflects the position of this House.

[Lord Hannay of Chiswick]

My Lords—

[Lord Taylor of Holbeach]

I will give way to the noble Lord, but I want to make this point absolutely clear. The noble Lord, Lord Richard, is plucking at straws. Let us get to the substance of this. There is a Motion before the House this evening that gives Members of the House an opportunity to express an opinion on both the opt-out and the rejoining of 35 measures. That is quite clear and it was the purpose of tabling this Motion. It is up to noble Lords to decide how they react to it, but there is nothing devious or obscure in the way in which the Motion has been derived.

[Lord Richard]

With great respect, I am not clutching at any straws at all. Having been drawn into a conversation with the noble Lord, I think that I am entitled to put this point to him. It is a question not of clutching at straws but of asking a very simple question of the Government. Why have they asked this House to endorse their proposals when they did not ask the House of Commons to endorse them? Why is there a difference between the Motions put to the two Houses?

[Lord Taylor of Holbeach]

I have given the noble Lord the answer.

[Noble Lords]

No!

[Lord Taylor of Holbeach]

I can give no other answer and I will give no other, because I have given the noble Lord an answer.

I should like to get to the substance of this debate. We can talk around it, but we should get to the substance. I was challenged by my noble friend Lord Maclennan and by the noble Lords, Lord Tomlinson and Lord Grenfell.

[Lord Hannay of Chiswick]

I am most grateful to the noble Lord for giving way. I want to get clarification on something that he said before he started the exchange with the noble Lord, Lord Richard. He said that the Motion before the House tonight, which endorses the Government’s list of 35 measures in the Command Paper, would be the basis on which the Government would start informal consultations with our partners. Can he confirm that that is true?

[Lord Taylor of Holbeach]

Exactly. There will be informal negotiations to start with because, until the reports from the sub-committee are produced in November, the Government do not intend to open up formal negotiations. The noble Lord is exactly right and I am grateful. I should have given way to him earlier. It was a very helpful intervention on his part.

I was going on to say that the noble Lord, Lord Maclennan, challenged my noble friend Lord McNally on the whole business of the referendum. The noble Lords, Lord Tomlinson and Lord Grenfell, and the noble Baroness, Lady Smith, repeated this. There is a very clear answer and I will read it. The European Union Act sets clear criteria for when a referendum would be necessary. These are set out in Section 6 of the Act. This decision is not one of the areas where a referendum is required. Changes to the Treaty on European Union, the TEU, or the Treaty on the Functioning of the European Union, the TFEU, or a decision made under Article 48(6) of the TEU potentially attract a referendum under the European Union Act 2011. The 2014 decision is not a treaty change, nor a decision under Article 48(6) of the TEU. Instead, it is something that flows from the existing treaty and, as such, it is not subject to a referendum. I hope that that categorical assurance reassures the House on this issue.

There have been some discussions about whether we are right to exercise the opt-out. The noble Lord, Lord Richard, raised doubts early on in the debate about whether this was a wise decision. My noble friend Lord Taverne questioned whether we were doing the right thing and a number of noble Lords have also done so. The Government are of the view that we should exercise the opt-out for three reasons: principle, policy and pragmatism. On principle, it is our view that the UK’s international relations in the field of police and criminal justice are a matter, first and foremost, for the Government. For example, the Government believe that, if necessary, we should have the option to amend our bilateral UK-US extradition and mutual legal assistance treaties as we and the US wish. However, currently any changes would need to be in conformity with the EU-US agreements.

In terms of policy, the UK has and will continue to have the ability to choose whether it should opt in to any new proposal in the field of justice and home affairs. It is therefore only right that we take the opportunity to consider on a case-by-case basis whether we wish to retain the pre-Lisbon measures and allow the CJEU to exercise jurisdiction over them. The key question that the Government have asked themselves in this regard is whether it is in the national interest to rejoin a particular measure.

Finally, we are being pragmatic. We are not going to be in a position to implement Prüm, for example, which requires member states to allow reciprocal searching of their databases for DNA profiles, vehicle registration and fingerprints, before December 2014. Implementation is likely to take years and require substantial funding. By choosing to remain bound by Prüm after 1 December 2014, we run the very serious risk of being infracted for failing to meet our obligations under the EU. The Home Secretary and Justice Secretary set all this out in a letter last Thursday. Others can disagree with it, but the case has been made and that is the Government’s position.

There is some concern, which has been stressed again by noble Lords, about why we are having this vote today. I think the nub of the question put to me by the noble Lord, Lord Richard, was, “Why do we need a vote today?”. We need, as I have said, to begin these informal discussions but we need also to allow some time for scrutiny of the measures and the decisions as they go along. The EU Committee has suggested in its report that the Government should have started negotiations at a much earlier stage. However, the Government would have been presumptive to have done so without allowing Parliament to have a say on the matter. The Commission DG for Justice, Françoise Le Bail, has said:

“But I guess the key issue is to have a decision by the British Government. There is nothing else we can do before that”.

That is why we have asked for this vote today. In effect, from this moment, we will be able to enter into those informal negotiations.

A lot of anxieties have been expressed, and the noble Baroness, Lady Smith, repeated the point about the risk of a gap between our opting out and our rejoining. Noble Lords will of course understand that there will be a transitional arrangement. The timetable is that the actual opt-out does not occur until 1 December 2014, so there is a period for negotiations, which we believe will include transitional arrangements. We do not see a gap as being a serious obstacle for us in presenting to our European colleagues a proper case for renegotiation in respect of those bodies that we want to opt in to. Indeed, all the discussions that we have had with colleagues in Europe have given us the feeling that we can be confident that they will be pleased that we have actually made a decision on this matter and that we will be in a positive position in respect of the 35 measures to which we will be opting in.

[Lord Blackwell]

Can my noble friend give me one more assurance? Can he confirm that, once the British Government have concluded their negotiations and we know what the conditions will be for opting back in to, for example, the European arrest warrant, Parliament will then have an opportunity for a final say on whether or not it agrees with those opt-ins?

[Lord Taylor of Holbeach]

Yes, that is indeed provided for. After 31 May, not only will impact assessments be generated for each of the measures to which we are opting back in but there will be a second vote on the 2014 opt-ins. This is a journey which Parliament and Government have to undertake together. I understand the passions of noble Lords on this issue but I hope that we can establish, on the terms of the debate that we have had this evening, a proper dialogue so that we can actually discuss these issues and give those people who disagree with the Government a proper sense that they have an opportunity for dialogue with us.

[Lord Hannay of Chiswick]

The noble Lord has just said something a little startling. He assured the noble Lord, Lord Blackwell, that the second debate and vote will take place after 31 May—that is, after the date that we have to give a legal notice to the European Union that we are opting out. I do not quite see how a vote after that date can vary that decision in any way.

[Lord Taylor of Holbeach]

There will be a second vote on the whole package after 31 May.

[Lord Hannay of Chiswick]

It would have to be before 31 May.

[Lord Taylor of Holbeach]

There will be a deadline of 31 May. The Government will make the decision but it will be up to Parliament to endorse it in a vote after 31 May. This is a matter where the Government and Parliament will be in constant dialogue. As I have said, there will be a debate in this House, I hope, in November. I hope that noble Lords will be furnished with arguments by the committee of this House that will enable us to discuss this issue properly at that time.

This has been a good debate. This Government are not frightened of criticism and are prepared to seek to answer it. The choice before us is whether we exercise the opt-out and rejoin measures, where it is in the national interest to do so, or we do nothing. I am firmly of the view that we should opt out, but it is most certainly in the national interest to seek to rejoin measures that help to combat cross-border crime and keep our country safe. I hope that the House will also endorse the measures in Command Paper 8671 and strengthen the Government’s negotiating hand. I know that the European Union Committee can further help the Government and this House by further scrutinising the measures that it feels the Government should rejoin. This can only enhance the debate. I am very pleased that the terms of today’s Motion have encouraged the noble Lord, Lord Hannay, not to press his amendment. I hope that I have also shown that the Government are prepared to listen to these concerns.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Taylor of Holbeach]

I am sorry; I am not going to give way. I have some important information for the House. The brief I had that said that the vote would be after 31 May was incorrect. It has now been corrected. The vote will be before 31 May, which I am sure reassures noble Lords. It certainly makes my life a little easier, if I may say so.

I hope that the noble Lord will forgive me. It is late and I am coming to the end of my remarks. There will be another vote before we formally apply to rejoin these measures. Today is not the end of the process but just a step along the road. I hope that noble Lords will support the position set out by the Government. It gives us a chance to be involved in a continuing discussion on this issue. I commend the Motion in the name of my noble friend to the House.

[Lord Hannay of Chiswick]

My Lords, I confirm what I said at the end of my intervention—that I do not propose to divide the House on the amendment in my name on the Order Paper.