European Union Referendum Bill

Lord Bowness Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Bowness (Con)]

My Lords, I had my name to a similar amendment that was tabled in Committee. I have to say to my noble friend Lord Hamilton of Epsom that for me it is an issue of fairness. With great respect to him, we will not get very far if we throw words such as “gerrymandering” at each other. I suppose that those of us who want to see a positive vote in favour of remaining in the European Union could say that to exclude tax-paying British citizens—a group who have committed their lives and made decisions about their lives and who live in Europe—is also gerrymandering in trying to skew it in another direction. I do not think that that gets us very far.

I believe that the amendment is one of fairness. As I said in Committee, these are people, many of whom if not all, will not be outside the reach of Her Majesty’s Revenue & Customs. The fact that you are non-resident does not mean that you are non-resident for tax purposes. HMRC will keep its fingers on you if you have property, family or a whole lot of various matters where you are judged not to have broken your connection totally with the United Kingdom.

The advice from the Electoral Commission in respect of this amendment—which, indeed, I support—says:

“It is not clear how such proof could be provided and verified by EROs”.

I am rather surprised at that advice from the Electoral Commission, because I should have thought that the vast majority of people about whom we are talking are people who will be resident in one particular place. They will have evidence of employment and evidence of that residency, and they will have the same papers that the rest of us have in connection with bills, credit cards and bank accounts, which will be the kind of evidence that they would be able to present to an electoral registration officer. While I have great respect for the Electoral Commission and its advice, although it says that it is not clear how such proof could be provided, I am not clear in my mind why it is so difficult to find suitable items to prove that you are entitled to a vote in the circumstances that this amendment envisages. I support the amendment.

European Union Referendum Bill

Lord Bowness Excerpts

Monday 2nd November 2015 Lords Chamber

[Lord Lexden (Con)]

My Lords, the noble Lords who have tabled these amendments have performed a most valuable service which has wider international dimensions, as my noble friend Lord Flight and others have pointed out. I have strongly and consistently supported the removal of the arbitrary 15-year limit on the right of our fellow countrymen and women living overseas to vote in our parliamentary elections—a right first conferred by Margaret Thatcher’s Government. I urged its removal in my first speech in this Chamber in early 2011. I tabled amendments to the Electoral Registration and Administration Bill in 2013 in order to press the case for change. I took part in subsequent discussions on overseas voting arrangements in a cross-party group chaired by my noble friend Lord Norton of Louth—a group in which my noble friend Lord Tyler played a conspicuous part.

I was delighted when my party included an unambiguous commitment in its recent general election manifesto to sweep away the iniquitous 15-year bar. Swift implementation of that commitment would have dealt with all the aspects of this issue, both as regards the parliamentary franchise and, as a direct consequence, the forthcoming EU referendum. However, the Bill to give effect to the unambiguous Tory commitment has not even been published. I was greatly taken aback to be told, in answer to an Oral Question in July, that there was no certainty whatever that the Bill would reach the statute book before the referendum took place—and it has become even less certain since then. This is deeply disappointing. Nothing could have been more precisely predictable than the emergence of the huge problem with which we are now confronted if swift and early action was not taken.

It is extremely unfortunate, to put it mildly, that work was not set in hand at the earliest opportunity. The Tory pledge was made in September last year. A branch of the Conservative Party’s organisation with which I am closely connected, Conservatives Abroad, has two outstanding experts on all the issues involved in extending the right to vote to all British citizens living overseas. They could have helped prepare the way for the Bill, which, if it were now before Parliament, would have prevented the wholly foreseeable problem that the amendments seek to address; unresolved, it will inflict great injustice on a significant number of our fellow countrymen and countrywomen overseas.

It simply cannot be right to hold a referendum in which some British citizens living in another EU member state or elsewhere in the world are able to take part, while others are excluded because they happen to have been absent from our shores for more than 15 years. The outcome within the EU will affect them all equally and profoundly. It will surely be incomprehensible to our fellow citizens living abroad that an election manifesto commitment cannot be implemented by one means or another in time for them to participate in a vote of such overwhelming importance for the nation to which they belong.

We need to imagine ourselves in the shoes of Harry Shindler, to whom the noble Baroness, Lady Royall, paid tribute, and our other fellow countrymen and countrywomen who have been living overseas for over 15 years and have retained a strong sense of British identity. How would we feel about being excluded from this momentous referendum while those who have not reached the 15-year limit can take part? The Bill should be returned to the other place and amended in order to include British citizens who have been living overseas for more than 15 years. In that way, we would uphold the principle enshrined in the Conservative election manifesto.

[Lord Bowness (Con)]

My Lords, I added my name to two amendments in this group. I speak in support of the amendments and of the principles that have been enunciated today. The franchise as envisaged in the Bill is full of anomalies, and it was quite clear from the first day of Committee that not all those anomalies will be removed. This, however, is a very simple point, and it is one of justice and fairness. We are speaking of people who have made possibly lifetime decisions to go and live and work in the European Union, and we are proposing to have a referendum that will determine whether or not the state of affairs of the United Kingdom being within the Union continues. In my submission, those people must in fairness have the right to participate.

On the first day of Committee I heard words to the effect of, “a decision to be made by British people”. I hope that it is a decision to be made by all British people, not just those whom we are going to be selective about. We have heard that there is a promise to extend the franchise. That makes it even more unjustifiable to deny those British citizens the right to vote in this referendum.

It would be wrong for those who are opposed to it to see British citizens abroad as somehow tax exiles. Many British citizens living abroad may well be non-resident in terms of not living in this country but they will not be non-resident in the eyes of HMRC, whose grasp is tight and long. Those who have family, properties, sources of income or other matters that bind and tie them to this country remain within its net. Therefore, that is justification for enabling them to have the vote.

Putting it into context, we are seriously proposing that they should not have a say in this decision, in contrast with the arrangements of some other member states which ensure that their citizens who live abroad are represented in their legislatures by members specifically elected by those expatriate communities. I do not suggest that we move in that direction, but I think that it helps us to see the context in which this argument is taking place. I support the amendments in this group.

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[Lord Green of Deddington]

I mentioned earlier that more than half the intake—180,000—is from the European Union. The population increase over a 25-year period includes two things: the migrants and their future children, as well as the growth of the population already here. Over the long term, all population increase in the UK is a result of immigration; over the medium term, it is two-thirds. I am not suggesting that all immigration is from the European Union—it clearly is not—but it is a major factor; it is half of it. I am perfectly sure that, when it comes to the referendum, the public will want to know whether it will be possible to restrain the growth of the UK’s population from whatever cause. The present position is that there are things that can be done in respect of non-EU migration—there has been some very limited success on that front—but nothing can be done in respect of EU migration. The amendment therefore calls for a factual report from the Government as to what might be expected, what the effect of their negotiation has been and what the impact will be on population.

My second amendment, Amendment 32, addresses the present refugee crisis and its consequences—an extremely sensitive and difficult area which is almost certain to continue well into the referendum period. For the time being, we are largely insulated—we are not members of Schengen and we have no land borders—but most of those now arriving are likely to qualify for EU citizenship in a period of between five and eight years, depending which country they settle in. After that, they will have free movement to the UK. In addition to that, and it is not widely understood, one person who is an EU citizen can bring his full family to the UK and elsewhere, whether or not they themselves are EU citizens. We therefore need an assessment from the Government of what is involved here. There will clearly be consequences for net migration, for population, for public services and for social cohesion. These two issues are a very important consequence of staying in and they should certainly be reported on.

Finally, I want to inform the Committee that I intend to make two changes to the amendments that I proposed last Wednesday. The first is to remove any reference to Irish voters lest this fall foul of the Belfast agreement, as the noble Lord, Lord Davies of Stamford, pointed out and, I think, the noble Lord, Lord Hannay, as well. The second is to introduce what might be called a “sunrise clause”, so that the amendment would take effect only from 1 January 2017. That deals with the point raised by the noble Lord, Lord Wallace of Saltaire, about the practical difficulties of changing the electoral register in time. As your Lordships probably know, EU citizens are marked on the electoral register; Commonwealth citizens are not. The sunrise clause has the additional advantage that it provides to Commonwealth citizens the opportunity to seek British citizenship if they should so decide. The next version of the amendments will deal with the points raised by noble Lords.

[Lord Bowness]

My Lords, I shall speak in favour of Amendment 21, to which I added my name and which stands in the name of the noble Lord, Lord Hannay of Chiswick. As this debate has progressed today, it has underlined the need for the kind of reports that we ask for in the amendment. It is of enormous importance that there be a point of reference where voters can see the implications of the decision they are being asked to make, whether that decision is to remain in the European Union or to leave it. It is my hope, although I appreciate that we are asking my noble friend on the Front Bench to accomplish something extremely difficult, that we will be able to find a form of words which is acceptable to both sides of argument as we have heard it articulated during the afternoon. I hope that the areas where information is needed can probably be agreed. They may be surprised and may not wish me to say it, but I think that common threads run through Amendment 21, which I support, and Amendment 27 put forward by my noble friends Lord Blencathra, Lord Hamilton of Epsom and Lord Flight.

Of course, I think I know what my noble friends hope the outcome of the referendum vote will be, and they probably suspect what I hope the outcome will be. Indeed, I have been clear about what I hope the outcome will be. It is probably the opposite of what I suspect they want it to be. However, the report that we are calling for should not lead voters one way or the other. That is for the in/out campaigns, between which we have heard some preliminary skirmishes this afternoon. Those campaigns will be coloured by rhetoric and a selective use of facts—hence the need for an effective report on the consequences of withdrawal, covering a wide area. The report must highlight the changes that will flow from an in or an out decision, and without comment.

I dare say that I might be appalled by the conclusions. Others will be delighted, but that is for the individual to decide and for their own reaction to the factors laid out. It is for the Government to lay out the facts. In some areas, there may not be an immediate change, as many if not all the European directives and regulations have been incorporated into our domestic law. I do not know how that situation will be dealt with or how quickly it could be dealt with. Will it be by piecemeal repeals and replacements, or by some big bang like repealing the European Communities Act 1972? Other prospective changes may be dependent on the outcome of the exit negotiations.

I do not want to trespass into Amendment 24 in the name of the noble Lord, Lord Kerr of Kinlochard, and if I do so I apologise; I will not take the time of the Committee when we reach that amendment by intervening. I believe that the report that we are asking the Government to provide must spell out to the citizens of the United Kingdom that the changes that we seek in exit negotiations, if that is where we get to, are not a fait accompli. They are not ours to demand. We cannot assume that all the other 27 states will agree. It will be for the 27 to decide and agree, and we do not have a vote in that.

I support the thrust of the amendment and hope that the Government will find it possible to enter into discussions before Report on a formula for the report to cover unbiased, informative and complete information, which citizens will require to enable them to make their choice.

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[Lord Dobbs]

Indeed. However, as I made clear in my statements at Second Reading, I personally—

[Lord Bowness]

When my noble friend Lord Dobbs replies to my noble friend Lord Forsyth, will he note from me—presumably bracketed among the Euro-enthusiasts—that the reports are not about the perils? The request is for a statement of fact on the consequences of a decision to leave. That is what is being asked for, and indeed I would oppose any suggestion that the report should comment one way or the other, but unless people know about the consequences of leaving, how can they make up their minds?

[Lord Dobbs]

Getting stuck between my two noble friends is a perilous position. As I made clear at Second Reading, I hope very much that the Prime Minister can bring back the reforms which will enable me to vote for and support him in continuing within the European Union. I do not adhere to my noble friend’s position where he will vote to stay in no matter what or that of the position of the noble Lord, which I suspect is that he will probably vote “out” no matter what.

Noble Lords have asked for a factual report. It is worth reminding ourselves of what happened in 1975 when a White Paper was produced. I know that the noble Lord, Lord Hannay, is probably not asking for the exactly the same sort of operation, but there was a White Paper, and of course it was huge. What the noble Lord and other noble Lords are asking for is a huge amount of work to be done, which will have to be distilled into something more manageable and digestible for public consumption. I have with me the 1975 version and I have to say that it is laughable in its simplicity and its paean of praise. There is very little that is truly objective about it. That indicates to me that it is impossible for anyone, let alone poor beleaguered officials, to come up with something that is going to satisfy everybody. I will not quote from the pamphlet because we do not need to delay ourselves.

Of course we need information. We need as much information as possible in the form of views, predictions and analysis, but that is surely the stuff of the campaign itself. It is the substance of the campaign, not that of some poor, hard-pressed official’s work that will never satisfy either side. These are issues which need to be argued in public with both sides in full cry. As I say, I am afraid that I have no faith in anyone’s ability to produce a report that will satisfy both sides of the equation. It will be no more than a fig-leaf on a very windy day and not worth the paper it would be written on.

Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Lord Bowness Excerpts

Monday 17th November 2014 Lords Chamber

[Lord Bowness (Con)]

My Lords, I am very pleased to support the content of the Government’s Motion. It seems a very long time ago that in July 2013, with the co-operation of my noble friends Lord Taylor of Holbeach and Lord McNally, we agreed a Motion that endorsed the decision to rejoin the 35 measures. Tonight’s Motion reiterates that and is all the more welcome for it. I am sorry that it has taken so long. In all the debates we have had we were told that time was not a problem, but we are now 13 days—unlucky for some—before 1 December, and we have ended up taking matters to the wire. That I very much regret. At this time of the evening, I think noble Lords will not wish me to say any more about the issues other than that I very much support what the noble Lord, Lord Boswell, said about the procedures.

I have one question for the Minister. The other place was told, if I correctly interpret its proceedings last Monday—both from reading and viewing them—that the vote was merely to approve the statutory instruments necessary for the implementation of the 10 or 11 of the 35 measures, but that a positive vote would be indicative of support for the measures, including the important and controversial European arrest warrant, and that the Government could proceed with that without any further formalities or legislation. Is that the case? Do the Government consider that, subject to the vote here tonight, nothing further needs to be done in Parliament before the formal notification to the Council and our opt-in to the 35? Can we be assured that, whatever further debates are held on the issue in another place—I understand this week—the matter will be considered concluded and a done deal when we rise this evening?

[Lord Kerr of Kinlochard (CB)]

My Lords, I, too, will ask a question of the Minister, which arises from the remarkable filibuster of the noble Lord, Lord Lamont of Lerwick. The noble Lord, Lord Lawson, inquired whether it would be possible for a member state of the European Union to conclude a treaty with the European Union. I will ask a different question. If it did, would the European Union involvement mean that the involvement of the European Court of Justice was automatic, and hence that the solution proposed by the noble Lord, Lord Lamont, to his problem—which is the involvement of the European Court of Justice—would in itself bring in the European Court of Justice very much quicker?

I do not wish to heap coals of fire on the Minister’s head—we come to bury Protocol 36, not to praise it, and the Minister is not only a learned but an honourable man. Therefore I do not want to say how much I share the criticisms made by the noble Lord, Lord Boswell, on grounds of procedure, and I do not want to say how, if he chose to press his amendment, I would willingly vote for it. It is very unfair on the noble Lord, Lord Faulks, that having himself repeated Mrs May’s commitment to a full debate and a vote in this House he is put in the position of having to dishonour his commitment. He is an honourable man—Brutus is an honourable man—and certainly I do not wish to bury him.

The only corner of this House so far, apart from the noble Lord, Lord Lamont of Lerwick, that is not backing the Government in what they propose to do, asks a question about the extradition—civis romanus sum—of the British citizen exported abroad to vile conditions in a foreign dungeon. Can the Minister tell us how many of the 105 people extradited from this country on murder charges under the European arrest warrant since 2009 were British citizens? I believe that the number is extremely small. Do we want to keep these people on our streets? Do we want to keep them in our jails? Why do we not send them back to face trial in their own countries? The civis romanus sum point is a good one—and I understand what is being said by the noble Lords, Lord Pearson of Rannoch and Lord Willoughby de Broke—but it is a very small point against the fact that bringing back murderers and rapists from abroad for trial in this country and sending abroad for trial foreign citizens in this country wanted in their countries for these crimes is clearly the right thing to do.

I believe that if we did not opt back into the European arrest warrant, we would be faced with negotiating a tangle of bilateral agreements. Of course it could be done, but it takes time. I know a little bit about these things. We should remember how long the UK-US agreement took and how controversial its terms were in the end. We should remember how, in some quarters, it is still controversial. It is not easy to do these things, and we would have to do them extraordinarily fast. I remind the noble Lord, Lord Lamont, that we have two weeks to go. If we do not opt back in again, the whole structure falls. We would then either be stuck with his course of trying to negotiate in a hurry an agreement with the EU as a block, or the EU as such—and the Minister will tell us whether that would be effective in achieving the purpose of the noble Lord, Lord Lamont—or we would have to negotiate a very large number of bilateral treaties with people who would be pretty discontented with us because we would be causing them quite unnecessary confusion and wasting time.

Therefore, I strongly support the Government on the substance and, because I am being brief and I do not want to cause any embarrassment at all to the Minister, I will not say how appalling I think the procedure has been.

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The vote today is on the draft regulation that will provide for domestic implementation of a number of specific elements of the package. It is also a vote to remain part of these 35 vital measures. In answer to my noble friend Lord Bowness, I confirm that there is nothing further that your Lordships’ House has to do to complete what has perhaps been a rather protracted process.

[Lord Bowness]

I hope my noble friend will forgive me for interrupting. My question was whether there was any further parliamentary process. I think I am convinced that it is the end of the road as far as this House is concerned.

[Lord Faulks]

My noble friend is, of course, quite right to ask me to qualify that. I should say that there is nothing more for Parliament to do. I understand that there may or may not be a debate in relation to the European arrest warrant in the House of Commons.

I will now deal with what happened in the House of Commons. It forms part of the concern of my noble friend Lord Boswell. I came back from China this weekend, where I had been discussing the rule of law issues which, as my noble friend Lord Lamont said, are very much a matter of priority for this country. On the flight back, I had the opportunity of reading the debate in the House of Commons; it was not an edifying experience. The expectation was that the debate would focus on the European arrest warrant, but that was not one of the measures that required any legislative action, so it was not within the scope of the Motion to approve the statutory instrument.

The Home Secretary, my right honourable friend Theresa May, indicated that the debate could concern itself by “proxy” with the European arrest warrant. The party opposite would have none of this and there ensued a bad-tempered and rather uninformative debate that eventually resulted, after three votes, in the statutory instrument—the subject of the Motion—being approved and the European arrest warrant not being fully debated. This did not reflect well on Parliament. I am glad to say, albeit by an amendment, your Lordships’ House does not have the procedural impediments that the House of Commons has, and all 35 measures, insofar as it was necessary, could be debated and, indeed, have been.

The European arrest warrant has been the subject of debate—

EU: Police and Criminal Justice Measures

Lord Bowness Excerpts

Tuesday 9th July 2013 Lords Chamber

[Lord McNally]

I concede a lot of logic in what the noble and learned Lord has said. The fact is, however, that we had the Protocol 36 exercise to carry through; we have discussed it inside Government and with Parliament on a regular basis; and we have listened to the views of the committee of the noble Lord, Lord Hannay, and others. We have suggested a way forward. Is it a way forward with risk? Yes it is. All such enterprises have an element of risk. However, we can move forward with a degree of confidence once we get past some of the nitpicking about who did what, where and when, and get down to the central issue of whether we can successfully negotiate with our European colleagues on matters of our national interest and, I respectfully suggest, of Europe’s interest. What has encouraged us is that the soft soundings that we have taken have led us to believe that we can carry out meaningful, fruitful discussions and negotiations that recognise the risks that the noble and learned Lord mentioned, but, because we will do this with good will and an intention to succeed, and with colleagues who have similar good will and want us to succeed, will minimise those risks.

[Lord Bowness]

My Lords, I thank my noble friend for repeating the Statement. He will not be surprised to know that, as the former chairman of one of the sub-committees that prepared the report, I associate myself with the regret expressed by the noble Lord, Lord Hannay, that we have not had a response within the normal and required time, although there appears to have been time to produce the 159 pages of White Paper.

The noble and learned Lord who spoke just now referred to risk. At the seminar on this issue held by the European Union Select Committee, a distinguished participant said, vis-à-vis risk and the difficulties of renegotiating re-entry, that the game was not worth the candle. I endorse that 100%.

I turn to specifics. The Statement says that the Government wish to rejoin the existing Europol measure. It also says that they do not intend at this stage to opt into the new measure. I regret that because it means that we will not have a vote in the negotiations, and a future opt-in to the new Europol provision will depend on certain matters being dropped from the current draft.

In preparing a list of the 35 measures, did the Government take account of the report to your Lordships’ House on the UK opt-in to the new Europol regulation that I believe was debated last week, which makes it absolutely clear that there are four other Council decisions that may not be repealed and replaced by the current Europol proposal, and which Europol advised were directly connected—that is, the existing Europol and a possible new Europol? It follows that whatever happens with the new Europol, if we wish to stay in the old Europol and are successful in renegotiating that, we will need the four separate Council decisions that are listed in footnote 39 on page 10 of the report. As far as I can see, none of them is included in the 35 circulated today. Am I correct? Is it an omission? If it is an omission, will it be put right? If it is an intentional omission, what is the thinking behind it?

Perhaps I may ask my noble friend, in all sincerity, whether we may have a very close examination of all the other measures before we go to Brussels to renegotiate, in order to make sure that there are no others that we should have opted into.

[Lord McNally]

I regret that we have reached 20 minutes. I say to unlucky Members who did not get in—I made a mess of this last time—that this is just the beginning. We have a long way to go and there will be lots of opportunities to examine both Europol and other matters.

I make it clear that we support Europol as it currently exists. This is why we wish to rejoin the existing Council decision on Europol. The new regulation proposes additional obligations that could put at risk the independence of our law-enforcement agencies. We do not support it and have indicated that we will seek to opt into the new regulation, post adoption, provided that Europol is not given the power to direct national law-enforcement agencies to initiate investigations or share data that conflict with national security.

There is no contradiction here. Our recommendation on the Europol regulation is about participation in a future measure governing Europol. It has no impact on our current participation in Europol. The Government continue to value Europol, but we feel that the Commission’s proposals go too far in an area that we consider poses a risk to the independence of our law-enforcement authorities. Our message is clear. We should get the required changes and we will seek to opt into the new regulation, post adoption, provided that Europol is not given the power to direct national law-enforcement agencies to initiate investigations or share data that conflicts with national security.

I shall read Hansard carefully and if I have not covered the points made by the noble Lord I shall do so in a letter. However, I am already overrunning my time and we shall return to this matter.

Criminal Procedure Policy: EUC Report

Lord Bowness Excerpts

Monday 4th February 2013 Grand Committee

Moved By

[Lord Bowness]

That the Grand Committee takes note of the Report of the European Union Committee on The European Union’s Policy on Criminal Procedure (30th Report, Session 2010-12, HL Paper 288).

[Lord Bowness]

My Lords, I thank the members of the European Union Select Committee who participated in the inquiry, in whose name the report is issued, but particularly the members of the Sub-Committee on Justice, Institutions and Consumer Protection, which I chair. I thank all members for their assistance and, indeed, our legal advisers and our clerks. Perhaps other members of the committee will forgive me if I particularly mention one of our number who is no longer a member of the committee—namely, the noble and learned Lord, Lord Boyd of Duncansby, whose knowledge of Scottish procedure proved invaluable in our deliberations. We were sad that he left us but delighted that he did so to become a senator—not in terms of Lords reform but as a senator of the Scottish High Court of Justiciary.

I will refer to one other matter before I deal with the report; it is the elephant lurking in the corner of this room—that is, the Government’s current minded opt-out of the pre-Lisbon provisions, a decision which has to be made before May 2014. I should point out that the Justice, Institutions and Consumer Protection Sub-Committee together with the Home Affairs Sub-Committee of the European Union Committee are jointly conducting an inquiry into that decision. Currently, that inquiry is proceeding; written evidence has been received and is on the website; witnesses are still being seen; and we shall be seeing the Lord Chancellor and the Home Secretary next week. When that report is produced it will, I presume, include observations on the merits or otherwise of a decision to opt out of the pre-Lisbon measures. It may well contain some comment about matters which should be, in the opinion of the committee, retained—if, indeed, that is the opinion of the committee—and an opinion on how the matter should proceed and the likelihood of success.

I want to make it abundantly clear, and put it on the record, that nothing I say today should be construed as expressing an opinion on any of those questions while that inquiry is proceeding. This report may well express opinions about particular measures, but they were opinions expressed at the time about the measures, not in the context of whether or not there should be an opt-out or whether or not there are practical alternatives to staying within those measures. It is very important that Sub-Committee E and Sub-Committee F, the two sub-committees involved, are not seen in any way to have pre-judged this issue before the report is prepared and submitted—at some time, I hope, before the end of the Session—to your Lordships’ House, although that, of course, depends upon the Government’s decisions as to when they bring a Motion to the House and the other place regarding the opt-in. At the moment we do not know what their decision is, what measures, if any, they want to retain, or whether we can meet the timescale. I hope that what I say can be taken in that context.

The report before the Committee this afternoon was undertaken by the Justice, Institutions and Consumer Protection Sub-Committee in the light of the changes made in the Lisbon treaty in respect of criminal law. That certainly gave an impetus to EU legislation in this field and an impression, correct or otherwise, that the Commission was anxious to proceed further in this area.

The inquiry also coincided with our normal scrutiny of a proposal for a directive laying down minimum standards for access to a lawyer by a suspect or accused persons. This was used within the report as a case study. Access to lawyers was just one of a package or road map of proposals aimed at providing minimum rights for defendants across Europe. This road map, and a second aimed at providing minimum rights across Europe for the victims of crime, constituted the Commission’s legislative programme in the field of criminal procedure.

In the course of this inquiry, we took evidence from academics, police prosecutors, NGOs, practitioners and Ministers, as well as directly from members of the public, who gave evidence of their experiences—some distressing—as victims of crime in another member state. We are grateful to all our witnesses who assisted us in this way.

People are moving within the European Union in increasing numbers and, inevitably and regrettably, some get involved in the criminal justice systems of other member states either as perpetrators of crime or as victims. They find themselves having to deal with unfamiliar legal systems, probably in an unfamiliar language. Although I do not think we should always assume that everything we do is better than anything anybody else does, British citizens finding themselves in that situation in other member states may frequently find themselves with fewer rights than they could expect in similar circumstances in the United Kingdom. As I said, in any event, even if their rights are there, the procedures and language will be unfamiliar.

The Union’s counter to cross-border crime is to promote mutual recognition of the judicial decisions made in other member states—that is, the decision of a judge in one member state to be given effect in another with the minimum of formality. It is a form of co-operation based on our practice and it seeks to avoid the disruption of having very different criminal systems across Europe, as would happen if they had gone down the road of harmonisation. Perhaps the most well known example of mutual recognition is the European arrest warrant.

It is accepted, and the report accepts, that mutual recognition has its faults and is incomplete, but the evidence given to us for this inquiry suggested that it is largely successful. Mutual recognition requires trust between judges, and so a judge faced with a request for speedy extradition may be reluctant to agree if he or she thinks that this will result in the defendant spending long periods in poor prison conditions awaiting trial or if the trial is likely to be unfair. Equally, a refusal to extradite on such grounds is likely to be viewed in the member state making the request as an unwelcome criticism of its own criminal justice system. The road maps are intended to provide that trust by ensuring that minimum standards for defendants’ and victims’ rights are adhered to across the Union.

This report concludes that such legislation laying down minimum rights is in principle beneficial, and we supported the proposals. Why, we are sometimes asked, did we not consider the European Convention on Human Rights or other international legal instruments to be sufficient? Quite simply, as the Government acknowledge, the European Union legislation generally brings greater clarity and is usually capable of better enforcement, which is lacking in the case of these international instruments. Members of the Committee will recall, because it was mentioned on many occasions, that the backlog of cases in the European Court of Human Rights at the time of writing was more than 150,000, and it is still more than 100,000. Non-legislative measures such as better judicial training and better co-operation have a contribution to make but, in our view, they do not replace the need for legislation. We believe that the United Kingdom has little to fear or gain from legislation in this area because, as I said earlier, our standards are generally recognised as being among the better ones among the countries of Europe.

We have obviously had the opportunity to shape much of this legislation, which has enabled British citizens travelling abroad to benefit from improved standards in other states. We recognise, however, that this remains a sensitive area for European Union activity because of the very different legal traditions in the different member states. The case study on the proposal for access to a lawyer demonstrates how the proposal—or, I should say, a proposal—can be too ambitious. That led to a situation in which we were not able to support the idea that the United Kingdom should opt in; indeed, we supported the Government in their opt-out. I understand that we were not alone in our concerns. The matter has currently been taken to the European Parliament, which has submitted some 80 amendments to the general approach that was agreed in the Council. I understand that those 80 amendments take us back to square one, if not back further than that, so the negotiations are still continuing. Although we accept the motive behind this particular proposal, we hope that further negotiations will ultimately allow the UK to come to a decision, if this is still relevant at the time, to opt into that legislation.

Overall, the report sees the area of criminal procedure as one that has made slow but careful and steady progress. We would like the present measures in the road maps adopted and experience gained as to how they work before we go further. We are wary of road-map measures that might affect the admissibility of evidence. In practice, we support the Government’s positive approach to the road-map proposals, even in cases where they have not opted in but stayed involved with the negotiations. We welcome the fact that the Government have opted into the road-map measures, with the exception of this access to lawyers.

The opt-out from pre-Lisbon criminal measures is the subject of a further report. It does not apply to the road maps, and I re-emphasise that this report does not pre-empt the opt-out decision and the separate debate that the House will have in the light of the subsequent inquiry. Clearly the opt-in/opt-out uncertainty creates certain problems. There is a framework decision which we have already opted into and which was intended to allow the supervision order that is intended to allow those who are awaiting trial to spend time on remand in their own country. We participated in its adoption but we have not implemented it. Many people have commented in evidence published on the website that this will go some way to ameliorating the acknowledged problems that exist with the European arrest warrant.

However, these are matters that no doubt will be resolved by Her Majesty’s Government when they bring forward proposals and it is not appropriate for me to comment further. I beg to move.

--- Later in debate ---

[Lord Bowness]

My Lords, I thank all noble Lords who have taken part in this debate upon the report. I have to say that if the noble Lord, Lord Beecham, was thought to rant against the Government, I did not feel that he ranted against the committee, and for that I am grateful. However, although the European arrest warrant may not have attracted a great deal of attention within the report, we were trying to take stock of the road map proposals and look at their potential benefit, both in respect of victims of crime and in dealing with its perpetrators, and at how the principles of mutual recognition and trust are working—and are capable of working. We took the issue of access to lawyers in more detail only because we used it as a case study.

As I say, I am grateful to all noble Lords for their contributions and to the Minister for his reply. I apologise for failing to do what I am always instructed to do, although it is on the register and in the report—namely, to declare what may be deemed an interest as a solicitor and a notary.

Motion agreed.

EU: European Justice and Home Affairs Powers

Lord Bowness Excerpts

Monday 15th October 2012 Lords Chamber

[Lord Wood of Anfield]

My Lords—

[Lord Bowness]

My Lords—

[Lord Ahmad of Wimbledon]

My Lords, if we take the Labour Benches and then we will move back to the Cross Benches and the government Benches.