Drugs

Lord Hannay of Chiswick Excerpts

Thursday 17th October 2013 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, when the EU Committee’s sub-committee on home affairs, which I have the honour to chair, reported 18 months ago on the European Union’s future drugs strategy, one of our most important findings was to note the paucity and the poverty of the public debate on drugs issues, including the way that such debate as there was tended to be dominated by raucous tabloid press scare stories and governmental knee-jerk reactions. One of our central recommendations was that the Government and the EU institutions should aim to stimulate an EU-wide debate on drugs policies. That finding remains as valid today as the day we made it and that recommendation remains largely ignored by both the Government and the EU’s institutions. It is in that context that I warmly welcome today’s debate and the tireless efforts of my noble friend Lady Meacher to fill that lacuna. I hope that the Government’s contribution to this debate, and other statements to be made by the Government in the months ahead, will help to serve the same purpose.

One striking consequence of this lack of informed debate is the astonishingly confused and confusing public terminology for some of the main issues at stake. It is not uncommon to read newspaper articles which actually equate decriminalisation of a limited number of drugs offences with the legalisation of trade in drugs as if the two terms were synonymous, yet there is a world of difference between them. To decriminalise the possession and use of small quantities of drugs but not their trafficking, as Portugal has done, is a completely different approach from that being followed in Uruguay, and possibly being prepared in two American states, where these commodities are being legalised. That, in turn, is quite different from the attempt being made in New Zealand to regulate legally what are called “legal highs”. If we are to have a sensible debate in this country about these matters we need to pay greater heed to these distinctions, and we need to be a lot better informed about the successes or failures of these policies in the increasing number of countries where they are being tried.

It is not surprising that such innovations are being tried since the not very wisely named “war on drugs” has fallen a long way short of being a complete success. Not only are our already overcrowded prisons, particularly in this country and the US, being filled with drug offenders, but many countries in Latin America, west Africa and Asia are being devastated by the collateral effects of that war, and of the trade in drugs, which our inability to control the demand for in our developed economies is continuing to stimulate. That certainly does not prove that all those policy innovations make good sense or should be replicated here, but it does show why a policy of simply standing pat on existing measures and refusing even to contemplate or to discuss any changes is such an inadequate one and so unlikely to be successful.

One remedy which seems to be gaining wider support and acceptance here and elsewhere in Europe is to put greater emphasis on harm reduction and on trying to treat drug users in the community rather than in prison. When we conducted our inquiry into the EU drugs strategy we came across small but encouraging signs that in this country such an approach was gaining ground, often encouraged by the devoted work of voluntary organisations. However, it is still desperately underresourced and, in terms of government policy, this seems to be something that does not dare to speak its name. Perhaps the Minister will address that concern when he replies to the debate.

I am not sufficiently expert, or perhaps sufficiently foolhardy, to put forward any ideas for specific changes in policy or the law. I am sure that all of them bristle with difficulties and drawbacks, but one of those difficulties, surely, is the political toxicity for any party or coalition of parties of changing even the smallest measure. Yet, if you come to think of it, this should not be an issue where party politics are involved at all. We should not allow such debate as there is to be dominated by a competition in demonstrating toughness towards anything to do with drugs. There is surely a good case for doing as the Government have done over airport capacity and setting up a non-political body to assess the whole field of drugs policy, including particularly the innovations taking place elsewhere in Europe and in the wider world, with a remit to report back early in the next Parliament in the hope—even the expectation—that such an approach could lead to cross-party policy-making and a shift away from the very unsatisfactory status quo. I would very much welcome the views of the Minister on this suggestion.

EU: Police and Criminal Justice Measures

Lord Hannay of Chiswick Excerpts

Tuesday 23rd July 2013 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

To move, as an amendment to the above Motion, to leave out from “House” to the end and insert “declines to give an opinion on the block opt-out under Protocol 36 to the Treaty on the functioning of the European Union until such time as the Government have (1) given a detailed written response to the Report of this House’s European Union Committee EU police and criminal justice measures: The UK’s 2014 opt-out decision (13th Report of 2012–13, HL Paper 159), and (2) sought endorsement for the list of measures the United Kingdom should seek to re-join set out in Cm 8671”.

[Lord Hannay of Chiswick]

My Lords, before I address the procedural issues covered by the amendment to the Government’s Motion that stands in my name on the Order Paper, I would like to make some observations about the substantive issues raised by the Home Secretary’s Statement of 9 July and the introduction to this debate by the noble Lord, Lord McNally, which set out the Government’s intention to trigger the block opt-out under Protocol 36 of the Lisbon treaty and to seek to rejoin 35 of the measures that fall within the scope of that opt-out. In doing so, I do not speak in the name of the sub-committee on home affairs, health and education that I chair since, lamentably, due to the Government’s delay in replying to the recommendations in the EU Select Committee’s report of 23 April, that report is not formally part of today’s debate, so I speak in a personal capacity.

The subject matter of our debate is, I fear, formidably complex and difficult to address in a simple and straightforward way. Just in case anyone is inclined to blame these complexities on the fearsome Brussels bureaucracy, though, I should point out that the complications are entirely of our own making. No other member state is in such a quandary. It is legitimate, I think, to criticise the previous Government, who negotiated the Lisbon treaty, for leaving such a cat’s cradle to their successors. I suggest that the challenge we face in this debate is to sort out the wood from the trees, tempting though it is to linger over some of the individual trees—for example, the Government’s decision to opt out irrevocably from the measure dealing with xenophobia and racism, surely a bizarre choice that could be considered sinister, just plain silly or a combination of both. It is a trifle difficult to explain or defend.

The first salient point that I would make is that the Government clearly have no objection of principle to the extension of the jurisdiction of the European Court of Justice and the enforcement powers of the Commission to cover justice and home affairs matters. Why otherwise have they opted into a large number of the post-Lisbon measures adopted in the past three years, as well as the 35 pre-Lisbon ones that they now say they are seeking to rejoin? No doubt, as the Minister has said, it is in our national interest to do so, but why then deny those extensions to the European Court of Justice and the Commission in the case of rather a large number of less significant measures? Presumably, that is to placate their critics on the wilder shores of Euroscepticism. However, they have obviously not succeeded in doing that, since some of those critics want to rejoin nothing and quite a few of them actually want to repatriate the post-Lisbon opt-ins as well.

A second salient point emerges from a study of the Explanatory Memorandums provided in Command Paper 8671. In not a single instance is it suggested that a measure currently in force is damaging to the national interest, or would be damaging if the Court’s jurisdiction were extended to cover it. The Explanatory Memorandums also state that not a single one of them impairs the human rights of British citizens. Why then do the Government want to opt out irrevocably? The most that can be said is that it would not make much difference. However, I suggest that that is a singularly feeble basis on which to found negative decisions that could have far-reaching implications for our wider relationship with the other member states. I should add that in the course of taking evidence we asked all our witnesses, some of whom were strongly in favour of the block opt-out, whether they could identify a single measure that was damaging to the national interest, and they could not do so.

It is sometimes suggested that to accept the European Court of Justice’s jurisdiction would be to undermine fatally the basis of our common-law system. Not one of our legally expert witnesses could substantiate that, and most of them contested it vigorously. There are, after all, three other member states that have common-law systems—Ireland, Cyprus and Malta—and they do not seem to be feeling any stress. Much is made of the so-called judicial activism of the European Court of Justice, but an examination of its track record in the justice and home affairs field provided no evidence at all for those assertions. In fact, the treaty requires the Court to pay proper respect to national jurisdiction in these criminal justice matters, so it is perhaps not altogether surprising that it actually does so. However, that seems to be overlooked by the Court’s critics.

If so far I have been rather critical of the Government’s position, let me say how much I welcome their decision to seek to rejoin Europol, Eurojust and the European arrest warrant. To have done less than that would have been to have put at serious risk important aspects of our national security—I was glad to hear the Minister recognising that quite explicitly—not least those relating to our greatly improved and crucial relationship on these matters with Ireland. We looked carefully at the assertions that we could comfortably move to a network of bilateral arrangements, in place particularly of the European arrest warrant, but we found no merit in that approach, which would in all likelihood be slower, more costly and less effective than the European arrest warrant.

The Government’s intention to implement the European supervision order is also very welcome. As the Minister said, that will enable British citizens sought under an arrest warrant to be bailed here rather than held abroad for long periods awaiting trial, one of the most justified criticisms of the arrest warrant. The fact that this country missed the deadline for implementing that European supervision order, which expired last December, should be a cause of shame for the Government, and the sooner that it now comes into force the better.

Where does that leave the debate over whether Britain should make use of the block opt-out, which it is undoubtedly entitled to do under the provisions of the Lisbon treaty? Nothing contained in the Home Secretary’s Statement in the other place on 9 July, in the Explanatory Memorandums published in Command Paper 8671 or in what the Minister has said today seems to justify a change in the judgment that your Lordships’ Select Committee reached last April: that the Government have not yet made a convincing case for triggering the opt-out. Indeed, the Government’s recent decision to ignore the views expressed by this House on 1 July, and therefore not to opt in from the outset to the negotiations on the new post-Lisbon Europol regulation, further undermines the credibility of the Government’s approach and further increases the potential risks to our national security.

What is new is that the Government have now, very belatedly, revealed the list of 35 pre-Lisbon measures that they will seek to rejoin. That is welcome, as is the content of that list—at least, so far as it goes. It seems to cover most of the main pre-Lisbon measures that the European Union Select Committee identified as being essential. Whether it covers all that needs to be covered remains to be seen; I am afraid that the period since the publication of Command Paper 8671 has been far too short to give the matter the detailed consideration that it requires. That consideration will now be undertaken by the two sub-committees working together as before, and will form the object of a further report that will be provided to your Lordships’ House before the end of October, as the Government have invited us to do, with a new call for evidence issued on 18 July.

That brings me to the procedural issues covered by the amendment standing in my name on the Order Paper. I placed that amendment on the Order Paper when it seemed as though the Government were seeking authority to trigger the block opt-out while doing no more than asking the House to take note of the list of measures that they might seek to rejoin. In this way, they were dividing in two the integrally linked parts of a single set of decisions which our report to the House made very clear had to be taken together. How could this House reasonably be asked to endorse the block opt-out when it was not being asked to endorse the list of measures we should seek to rejoin? The amendment to the government Motion that was moved by the noble Lord last night has, however, changed that position and has asked the House to endorse the list of 35. That is a major step forward.

It meets the more important of the two requirements set out in my amendment and, as so often when you are standing waiting for a bus, two come along together. So on this occasion the Government have now, in something close to a death-bed conversion, produced their response to our report, which I spent the afternoon reading, but on which I will certainly not attempt to comment now. Although I can do a bit of speed reading, these matters require a little more care than that. In any case, the result of this is that the two points in my amendment have been met by the Government. I therefore make it clear that I do not intend to divide the House on that amendment.

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[Lord Hodgson of Astley Abbotts]

If the noble Lord reads the Motion before the House, he will see exactly what it is. It gives Members of your Lordships’ House, particularly those who have not participated in the sub-committees’ deliberations, a chance to express their views. That is entirely appropriate.

[Lord Hannay of Chiswick]

My Lords, earlier in the noble Lord’s speech, he congratulated me on the wisdom of not putting my amendment to a Division. However, he failed to note that the reason was that the Government had conceded both points that were contained in it.

[Lord Hodgson of Astley Abbotts]

That is true, but it would have been unwise to have proceeded with a black-and-white decision along the lines that we are operating, as I explained.

In the remainder of my remarks, I want to concentrate on just three points. These are the different categorisations of the 130 opt-out decisions that we are looking at. First, there are the 40 or so that are considered redundant or inapplicable. Some noble Lords and some members of the sub-committee have argued that there was no point in disturbing these particular sleeping dogs. I am afraid that I take a more fundamental approach than that. Where possible, one should remove redundant provisions from the statute book. Leaving such provisions extant, however innocuous they may seem at the time, can cause unforeseen problems in the future, as to both applicability and compliance. From my point of view, the Government were right to take this opportunity to clean up the directives in this way.

The second category is of those directives to which the Government seek to opt back in. Primarily, they focus on enhancing the international dimension of the fight against organised crime. It is more than ever a self-evident truth that crime, along with many other activities, has gone global. The European dimension to this global challenge has formed important elements of many reports from your Lordships’ various EU sub-committees. I strongly support decisions to continue with hard and practical measures in this field: the joint investigation teams, exchange of information under ECRIS, mutual recognition of confiscation orders and so forth.

Not all the directives are perfectly formed. I am pleased that, while recognising the value of the European arrest warrant—I entirely share the views of noble Lords who have pointed to its particular importance in the relationships between the UK and the Republic of Ireland—nevertheless improvements can and should be made. These should be in areas such as proportionality, not allowing people to be held for long periods without trial overseas and using videoconferencing to enable people not to have to travel, particularly where the case against them is not as sure as it might be. For these global security matters, we should opt back in and I am glad to see us doing it. If it is in our interests to improve global security, I see no reason why fellow European members should not wish to collaborate with us to ensure that.

Finally, I turn to the third category of directives, to which the Government propose not to opt back in—the most challenging area of our discussion. I am no lawyer, but my concerns as an external viewer are threefold. First, how does one combine into one legal framework cases that emerge from two different legal traditions: the investigative approach, followed by most EU member states, and the adversarial common law approach of the UK, Ireland, Cyprus and Malta? Secondly, to what extent does any potential judicial activism of the European Court of Justice represent a challenge to our established legal procedures? Thirdly, what will be the long-term impact of the European Convention on Human Rights, although an entirely separate structure, on the first two? I do not pretend to have clear answers to these questions and I am not sure that many other people do either. In the circumstances, the Government are wise to proceed slowly, to watch developments and to react accordingly. Joining in will surely represent a one-way ticket and I am not yet convinced that the UK should be embarking on that journey.

In conclusion, given the restrictions imposed by the wording of Protocol 36, the Government are taking a broadly sensible approach by, first, removing superfluous and redundant legislation; secondly, by rejoining those directives that help to increase the security of Europe as a whole; and, thirdly, awaiting the clearing of the fog that still hangs over a number of important public policy issues. That is why I shall be supporting the Government tonight.

--- Later in debate ---

[Lord Blackwell]

My Lords, the change in wording of the government Motion poses me with a dilemma. Although I wholeheartedly support the decision to exercise the opt-out, I have to say that I am not in any position today to want to commit to endorsing opting back in to 35 measures and, in particular, these 35 measures.

Various Members opposite have suggested that the Government were seeking to pander to, as the noble Lord, Lord Hannay, said, the “wilder shores of Euroscepticism”. I am afraid that the Government, in attempting to cosy up to the Europhile cabal, have left the mainstream Eurorealists in the country out there somewhat bemused. It is a dilemma that the Government will have to resolve. I believe that a strong justification is needed to remain in any of these measures, although I know that that goes against the conclusions of the EU Select Committee report. I am normally a great supporter of the wisdom and analysis that comes out of the European Select Committees but I have to say that I was thoroughly disappointed with this report, which started off with the assertion that the committee concluded that proponents of opting out offered no,

“convincing reason for exercising the opt-out”.

If it started with that assertion, it is no surprise that it ended up—

[Lord Hannay of Chiswick]

I am very grateful to the noble Lord for giving way. If the report started with that, it is odd that the paragraph is numbered 275. The report ended with that because its conclusion was based on a vast amount of evidence and was supported by members of both sub-committees and the overall committee, from all parties and from none. That is worth remembering.

[Lord Blackwell]

The noble Lord might like to note that the phrase is in the summary at the front. I will explain why I, for one, think that that is a totally incorrect conclusion. There is a strong reason for opting out of all these measures. Maybe there are reasons for opting back in to some of them, but there is a strong reason for starting with the presumption that we should opt out. The mistake that the committee, and I am afraid maybe the Government, made was to look at each of these measures pragmatically, on the marginal basis of whether there was some value in each particular measure. That ignores the fact that every one of these measures has a price, which is the transfer of some sovereignty from the UK Parliament and the UK courts.

There is a bigger issue, which the committee totally failed to address, although I am sure that the evidence was presented. Where measures are transferred to European legislation and European courts, where is the democratic accountability for those laws and judgments that govern the freedom and justice of UK citizens?

--- Later in debate ---

[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.

--- Later in debate ---

[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 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 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.

Amendment withdrawn.

Europol Regulation: European Union Opt-In

Lord Hannay of Chiswick Excerpts

Monday 1st July 2013 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

That this House agrees the recommendation of the European Union Committee that Her Majesty’s Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, to take part in the adoption and application of the Proposal for a Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA (document 8229/13) (2nd Report, HL Paper 16).

[Lord Hannay of Chiswick]

My Lords, I beg to move the Motion standing in my name on the Order Paper in my capacity as chairman of the European Union Committee’s Sub-Committee on Home Affairs, Health and Education, which prepared the report now before your Lordships for endorsement. As the House will know, when we consider reports of the EU Committee, this is normally on a Motion that the House simply takes note of the report. In the case of this report, the Motion invites the House to agree with the committee’s recommendation that the Government should opt in to the negotiations on the Commission’s recently proposed Europol regulation. The reason is that the report deals with a draft measure falling within the area of justice and home affairs, which will apply to the United Kingdom only if the Government exercise their right under a protocol to the EU treaties to participate in its negotiation, adoption and implementation—in other words, to opt into it. They have to do this within three months of the proposal being presented to the Council, which in this case means before 30 July. The committee believes that the Government should opt in, and the Motion invites the House to endorse that view.

In 2011, the Government repeated an undertaking given by the previous Government that time would be found to debate opt-in reports well before the expiry of the three-month period. I am most grateful that they have honoured the undertaking on this occasion by making time available for the debate early enough for them to be able to take into account the views of the House when reaching a decision on whether to opt in.

As many of your Lordships will know from earlier EU committee reports, most recently from the joint report of Sub-Committees E and F on the block opt-out under Protocol 36 to the Lisbon treaty, Europol—the European Police Office—is a vital weapon for co-ordinating the European fight against serious organised crime, drug trafficking, money laundering, cybercrime and terrorism. It was originally established in 1995 as an intergovernmental body, and became an EU agency in 2009, following the adoption of a Council decision to that effect. Europol has no executive or coercive powers to conduct investigations or make arrests in the member states, and the Commission’s proposal before your Lordships does not seek to change this. Europol supports the work of member states’ law-enforcement authorities by gathering, analysing and sharing information and by co-ordinating operations.

CEPOL, the European Police College, aims to encourage cross-border police co-operation by bringing together senior police officers from across the EU in training and exchange programmes, among other things. It was established as an EU agency in 2005, following the adoption of a separate Council decision. It is currently based at Bramshill in the United Kingdom, alongside the English and Welsh College of Policing.

The draft regulation we are debating would supersede both the pre-Lisbon Council decisions: the one dealing with Europol and the one dealing with CEPOL. It proposes to merge CEPOL with Europol in the latter’s existing headquarters in The Hague. The new regulation would also enhance some of Europol’s existing powers, in particular regarding the collection of data from member states and its ability to analyse the data more effectively. The Government have expressed concerns in their Explanatory Memorandum about the introduction of a stricter obligation on member states to provide data to Europol. I understand that in fact—this is a point of some interest—law enforcement agencies in the United Kingdom already share, voluntarily, a greater volume of information with Europol than do the agencies of other member states.

Doubts could also arise about Europol’s ability to cope with large volumes of information if it were to be copied in to all bilateral exchanges, as the regulation seeks to make mandatory. I would welcome the Minister’s thoughts on how the Government would address these concerns during the negotiations if they were to opt in to the proposal. The committee’s view, which we expressed in our report, was that the Government would be most effective in pursuing these concerns by participating in the negotiations. In doing so, I would hope that they would bear in mind, in dealing with our own concerns, our clear interest in other member states providing more information to Europol than they do at present. As always, there are two sides to the coin.

With regard to the proposed merger of Europol and CEPOL, your Lordships are probably aware that it has generated a degree of opposition, not least from both the agencies concerned. While the committee accepts, in general terms, the desirability of merging EU agencies if this will produce cost savings without a loss of effectiveness, it did not believe that the Commission had yet made a sufficiently convincing case for the merger in terms of reducing duplication, achieving efficiency savings and increasing effectiveness.

While the Government also appear to have concerns about the proposed merger, they somewhat counterintuitively appear to be unconcerned about the possible relocation of CEPOL to The Hague, following their announcement that the agency’s lease at Bramshill will come to an end in March 2014. I will ask the Minister for further information about the possible relocation of CEPOL, including whether any efforts have been made to retain the location of this agency in the United Kingdom. It now looks more likely that the two agencies will be kept apart, because there is strong opposition not only from the agencies but from quite a number of member states, as expressed in the recent Justice and Home Affairs Council and also in the European Parliament, where the LIBE Committee, which is a kind of opposite number to my sub-committee, is strongly opposed to the merger. Therefore, the likelihood is that CEPOL will be looking for a new home.

Concerns have been raised in the past about the limited parliamentary oversight of Europol. This has been addressed to a degree by the increased scrutiny of the non-operational functions of this agency, as well as of CEPOL, by the European Parliament since the entry into force of the Lisbon treaty in December 2009. In 2010, the Commission instigated discussions about how national Parliaments could be involved in the process of scrutiny and oversight in order at the same time to increase accountability at member state level, thus recognising the shared competences in the justice and home affairs field. I will explain that point. I think that everyone understands that this will be an area of mixed competence as far as the eye can see. It is not even conceivable that member states will hand all that over to the European Union. It is certainly not desirable that they should do so—and it is not going to happen. That means that in an area like this, where there is mixed competence and the issue of parliamentary scrutiny and oversight arises, the only sensible way to proceed is to try to avoid a food fight between the European Parliament and national Parliaments, and to see whether we can get some sort of system in which they operate together on the basis of equality.

My committee and I have played an active role in those discussions from the outset, and have pushed for the development of existing structures to this end, rather than for the establishment of new ones. There are regular meetings of the European Parliament LIBE Committee and the national Parliament Home Affairs Committee. If we build on them, we will avoid the potential costs and duplication that a more freestanding structure could entail. Other national Parliaments have tended to follow our lead in taking this view, and I will continue to state the case in Brussels and elsewhere. In that respect, we find the provisions in the draft regulation extremely welcome. They would increase parliamentary scrutiny of Europol, and its accountability both to the European Parliament and to national Parliaments, and would do so with a light touch, as we have recommended.

Our position on a number of other provisions in the regulation is set out in the report. Some are technical, and I will not weary the House with them. However, there is one to which I should draw attention. It arises in the context of the committee’s recent consideration of the Government’s 2014 block opt-out decision under Protocol 36 to the Lisbon treaty—about which I fear your Lordships will hear a lot in the coming months when we come to debate the committee’s report on this matter, which came out at the end of the previous Session, and when we receive the Government’s response to that report, which the noble Lord, Lord McNally, stated was coming “shortly”. “How short is a piece of string?” is perhaps the same question as, “How long is a piece of string?”. We will find out in due course.

Our witnesses for the Protocol 36 inquiry, the Home Secretary included, were almost unanimously positive about Europol’s role, including the significant benefits it provided for the United Kingdom’s law-enforcement agencies in terms of access to information, analysis, intelligence, co-ordination and support, as well as the efficient and cost-effective arrangement of having access to 40 countries in one place rather than co-operating through a network of bilateral arrangements.

The potential value of Europol has recently been enhanced by the establishment of a Cybercrime Centre within it, in response to the real challenges that cybercrime presents to all of us. If the Government choose to opt in to the regulation that we are debating today, the two Council decisions establishing Europol and CEPOL will simply drop off the list of measures that will be caught if the Government decide to trigger the block opt-out decision. However, four other measures on that list, which Europol informed the committee were “directly connected” with the Council’s Europol decision, will remain on the list. Do not ask me why this has happened or whether it is sensible that it has happened—but it has happened. Can the Minister clarify which of the existing measures are subject to repeal by the new regulation and how would handling any other relevant decision affect handling the block opt-out decision? Are the Government mindful of the need to opt back in to any Europol measures not so repealed, so that no question of lack of coherence arises? Of course, that will occur only if the Government agree to opt in to the Europol regulation, but it is worth going over that ground because there is a potential trap there, which it would be unwise for us to fall into.

My sub-committee plans to keep the present draft regulation under scrutiny. At this stage, only one matter is for decision by the House—whether or not the Government are recommended to exercise the United Kingdom’s opt-in by the end of July. For the reasons I have given, the committee is firmly of the opinion that the Government should do so, in part so that they can play a full and effective role in addressing the concerns that they have expressed, some of which we share, during the negotiations. It would be good to hear from the Minister at the conclusion of the debate whether it is the Government’s intention to opt in to the new Europol regulation. I understand that a parallel debate on this issue in another place has been postponed from the scheduled date of 3 July. Can the Minister say why that has happened and when the debate will be reinstated, presumably before the other place rises on 18 July? Can he assure the House that when a decision is taken on the opt-in, it will be communicated to this House? I beg to move.

[Lord Sharkey]

My Lords, I start by thanking the noble Lord, Lord Hannay, for the way in which he chaired the committee in the production of the report which forms the basis of this evening’s debate. I also thank the committee’s clerk, Michael Torrance, for his invaluable input into the report.

The noble Lord, Lord Hannay, has set out forcefully the case for agreeing to our committee’s recommendation that the Government should opt in to the new Europol regulation. They have four weeks to do that. I shall not repeat the noble Lord’s arguments in detail, but I want to re-enforce the argument about Europol’s importance to this country’s national security and crime-fighting efforts and to speak about where the clear balance of advantage lies in this debate.

Europol, with its outstanding British director, is a success story for the United Kingdom. In 2010, Operation Golf, a joint operation between Europol and the Met, led to the arrest of seven individuals in the UK and 126 individuals in total for trafficking children; 28 children in the UK were released as a result and 181 children in total. Operation Rescue, a three-year operation launched by the Met and co-ordinated by Europol across 30 countries, led to the discovery of the world’s largest online paedophile network; 670 suspects were identified, 184 arrests were made and 230 sexually exploited children were protected. Operation Veto, an investigation led by Europol across 13 European countries, uncovered an extensive criminal football match-fixing network. A total of 425 match officials, club officials, players and serious criminals from 15 countries are suspected of involvement.

There are other successful case histories. However, Europol’s critical role in helping the UK can be summed up in the words of ACPO, which said:

“Much of our international crime and transient criminals come from Europe and membership of these organisations”—

Europol and CEPOL—

“makes it easier to target them. Removing ourselves from these measures and putting ourselves in the position of having to re-negotiate 26”—

it will now, presumably, be 28—

“treaties on each and every topic, would be a massive step back for UK policing that would benefit no one”.

--- Later in debate ---

[Lord Taylor of Holbeach]

That is exactly the point that I have been trying to lay before the House and why the Government are deliberating carefully on this. It is a matter of common interest across European countries and of measuring that common interest. This is all a worthwhile endeavour but it requires the national interest to be taken into account. That is the background against which the Government are making this decision. Of course, there is a big issue about the general opt-out but this decision stands alone and is being considered by the committee and by the Government on its own merits. I have tried to demonstrate that this is an even-handed consideration of the issue.

I say to the noble Baroness that, whatever our decision, negotiations are important for us in ensuring the operational independence of law enforcement agencies and the security of our citizens. We expect there to be some common ground among member states, such as la belle France, if the noble Lord, Lord Foulkes, was referring to the interests that a number of noble Lords in the Chamber at the moment have. We are committed to ensuring the best possible outcome from these negotiations. We will need to consider the proposals in detail as the negotiations progress but we agree that strong data protection, for example, is important. The regulations here will need to reflect the data protection provisions being negotiated elsewhere. None is likely to change during the negotiating position. The noble Baroness asked how many other measures are awaiting an opt-in. I know of no others but will seek to find out and let her know if there are any.

This good-natured and deep-thinking debate, despite the hokey-cokey allusions, has considered the seriousness of this issue. As the noble Lord, Lord Judd, said, the security of the country requires us to make sure that law enforcement agencies have the co-operation they need from other European countries. I stress that the Government still have an open mind on the issue. We will of course consider the view of your Lordships’ House and the arguments made by noble Lords here tonight very carefully before we make our decision. I assure the House that the Government will ensure that this House, and Parliament are kept informed about that decision.

[Lord Hannay of Chiswick]

My Lords, this has been a relatively brief debate, and I hasten to assure those faithful few still here that I do not intend to apply Professor Parkinson’s law and use all the time available to wind it up. I think that the common point among all noble Lords who participated was the recognition that serious crime is an international problem now and that we need a great deal of co-operation to deal with it. That really was agreed by everyone. The noble Baroness, Lady Smith of Basildon, said that crime does not stop at Calais. I sometimes think that some of the Government’s supporters believe that crime starts at Calais, but we can leave that on one side. The fact is that it occurs on both sides of the Channel and the perpetrators are more and more imaginative about their use of technology and very rapid and easy travel, and all the other tricks of the trade, and that is why we need this sort of co-operation to deal with it.

I thank the faithful members of the sub-committee that I chair, the noble Lords, Lord Sharkey and Lord Judd, for having participated in this debate. The noble Lord, Lord Sharkey, very helpfully drew our attention to some of the practical consequences of Europol co-operation. Sometimes our debates must seem a bit theoretical, but he brought us firmly back to earth. The noble Lord, Lord Foulkes, who is on the EU Select Committee, was also very convincing.

Even I find this opt-in and opt-out business pretty confusing sometimes. We should remember, if we find it infuriatingly confusing, that it is entirely of our own making. No other member state goes through these agonies. This is an exercise in sadomasochism. I am not contesting it because I know how it came about. The various previous Governments who negotiated these rather complex arrangements were justified in doing so, in my view, but the complications are of our own making, so we should not get too irritated by them even though they are difficult to understand.

To answer a question asked by the noble Baroness, Lady Smith—the noble Lord did not answer it—first, there is the directive on the proceeds of crime, which your Lordships’ committee recommended the Government should opt into. The Government did not opt in, but they have not excluded opting in at the adoption stage. That is the position which the noble Lord described in relation to Europol. Rather more seriously, there is the European surveillance order, in which the Government do not have an opt-in or an opt-out; they have simply failed to implement a piece of European legislation which they agreed to. It came into force throughout the European Union in December last year.

The European surveillance order is actually rather important for British citizens because it provides the possibility for someone who is subject to a European arrest warrant to be bailed in their own country: that is, to stay in this country and avoid being taken to, say, some insalubrious jail in Greece where they are kept while awaiting trial. My own view, and that of everybody who participated last week in the very good seminar in which the noble Lord’s colleague, James Brokenshire, participated very positively, is that it is unconscionable that we have not opted into this. Apparently the reason is that the Government did not wish to pre-empt the view they were going to take on the European arrest warrant, but as a result of that decision there are British citizens who are not able to make use of the European surveillance order and be bailed in this country. That number will grow as the delay grows.

Turning to the purpose of the debate—the Europol regulation—I am most grateful to the noble Lord, Lord Taylor, for his habitually calm and friendly presentation of his position. I think I understand the complexities of the timing in the other place. The window of opportunity is rather modest, since the other place goes away on 18 July. It is the normal practice to give it one week’s notice of a government Motion, which takes us to 11 or 12 July, but after all that will be after 5 July, and we all know what is happening on 5 July in the other place on matters European.

I thank the noble Lord for his very helpful response about how he would keep the House informed of a decision by the Government. I am sure that it can be done in a light and easy way. Of course, there is no question of another debate of this sort, but if he could find a way of doing that, it would be really helpful, and I accept his undertakings on that with great thanks.

Global Migration and Mobility (EUC Report)

Lord Hannay of Chiswick Excerpts

Thursday 6th June 2013 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

That this House takes note of the report of the European Union Committee, The EU’s Global Approach to Migration and Mobility (8th Report, Session 2012-13, HL Paper 91).

[Lord Hannay of Chiswick]

My Lords, the report of the European Union Committee, The EU’s Global Approach to Migration and Mobility, otherwise known as “the GAMM”, which is how I shall refer to it during this debate, was published as long ago as 18 December 2012. It would be normal to deplore the long delay in bringing this report forward for debate and, indeed, it is deplorable as a general proposition, but in this case the overall context of the public discussion of migration issues has changed so much in the intervening period that one could regard a debate now as of greater topicality and value that it would have been earlier. I am bringing the report to your Lordships’ House for debate in my capacity as chair of the EU Sub-Committee on Home Affairs, Health and Education which conducted the inquiry.

The debates taking place in this country and across Europe on illegal and legal immigration, the global competition for talent and access to social welfare and other benefits by migrants are, rather like migration itself, not new. They have been taking place for decades, if not centuries, and Europe in the early 21st century is no exception. But recently, the tone has sharpened and there is a risk that a rational and measured discussion of complex issues will be drowned out by cries of populist outrage riding on the back of the stress caused by recession.

Our report highlighted that the EU today is home to approximately 23% of the world’s estimated 214 million international migrants. This makes it second only to North America as a destination region. Within the EU, however, there is a mixed picture. More than 75% of non-EU nationals living in the EU are in one of the five largest member states: Germany, Spain, Italy, France and the UK. What proportion of these migration flows is made up of illegal migrants is, of course, difficult to determine. Estimates in 2008 placed the figure at between 1.9 million and 3.8 million in the EU 27.

The catalyst for our report was the publication by the European Commission in September 2011 of a communication setting out the EU’s general approach to migration and mobility in the period ahead and proposing four pillars of activity: on legal migration; on irregular migration; on asylum; and on development. Our report emphasised that the EU has limited legal competence to act in this area, although many of the decisions continue to be the responsibility of member states. The treaties of Maastricht, Amsterdam and Lisbon and the incorporation of the border-control-free Schengen area into the EU framework support this shared responsibility. None of the witnesses—I emphasise “none”—nor our report itself pressed for any change in that division of responsibility. The committee’s view was that, given the current and prospective demographic challenges facing Europe—and they are really quite severe—EU member states, particularly those with skills shortages, need to be flexible in the operation of legal migration from third countries in order to secure economic growth and competitiveness. For the EU, or for any of its member states, to lock itself into a long-term, restrictive posture on immigration could be a costly error.

I emphasise the role of the member states here because, as I said a moment ago and as the report says, they,

“should continue to have the right to choose the number of migrants from third countries they wish to admit to their labour markets, depending on their needs”.

Transfer of responsibility to the EU of the management of the scale of legal migration is beyond any political horizon I can envisage. It was interesting that neither the Commission officials from whom the committee took evidence nor the members of the relevant committee of the European Parliament had a different view. This conclusion is borne out by the current varied situation, with very high levels of unemployment in some member states, but signs of skills shortages in the EU’s largest economy, Germany.

Perhaps the biggest preoccupation in the UK is with stopping irregular migrants from reaching these shores in the first place. Although the UK, as an island nation, has opted out of the Schengen area and many aspects of its legislation, it plays an active role in the work of FRONTEX, the EU’s external borders agency, and in the development of EUROSUR, a networked border surveillance system. Our report concluded that it is in the UK’s national interest that these operations are efficient, effective and well resourced; that was, in fact, the conclusion of the national security strategy that the coalition Government brought forward shortly after they took office.

It is important to note that the majority of irregular migrants in the EU actually enter with authorisation—that is to say, they enter legally—and they then overstay their visas. With this in mind, EU member states should consider, we believe, a more balanced and comprehensive approach to overstayers, including the selective encouragement of legal migration channels. One example is that of EU mobility partnerships. These are voluntary agreements where the third countries in question discourage irregular migration and improve their border controls in exchange for EU financial and technical assistance. Another example is that of EU readmission agreements. These are also voluntary agreements where third countries help to facilitate the orderly return of irregular migrants in exchange for assistance and possibly better visa facilitation arrangements for their nationals. In the committee’s view, it is regrettable that the Government, in their response to our recommendation that they should opt in to all these EU readmission agreements, stated that they prefer to,

“weigh up the benefits of participation in each EU Readmission Agreement (EURA)”,

on a case-by-case basis. However, if bilateral nations were ever to weaken between the UK and a particular third country, and thus to undermine any bilateral readmission arrangements we might have, an EU readmission agreement could well provide a useful safety net. We therefore call on the Minister to consider joining the EU readmission agreements with Belarus and Armenia and all the subsequent ones that may be negotiated—there are quite a few under negotiation now.

The GAMM is not just about stopping economic migrants from coming to the EU; it is also about improving the economies in the source countries of migration. As one of the witnesses in our inquiry put it, “It is about buying more Tunisian tomatoes”; and reducing the EU’s trade barriers against non-EU countries could assist the EU’s aims in the migration context. Furthermore, the EU could use the GAMM as a framework to carry out projects and programmes to promote development and mitigate the effects of the brain drain on countries of origin—for example, by facilitating the cheaper, more secure and more rapid transfer of remittances from the diaspora, by supporting microfinance schemes and by engaging with and assisting diasporas to transfer skills to their country of origin. To carry out the activities that I have just mentioned, our report suggested that a more integrated approach to migration should be adopted, both at national and at EU levels. Migration policy cannot and should not be the sole responsibility of an interior ministry, or the Home Secretary in this country, or of the Commission’s Directorate-General for Home Affairs. A more holistic approach is highly desirable.

Previous and current British Governments have chosen to exercise the British opt-out with regard to the majority of both legal and irregular migration measures brought forward by the Commission in recent years. So while the GAMM had its genesis in a UK initiative, frequently forgotten, and enjoyed a lot of early support, the UK’s participation is looking increasingly patchy. For example, the UK participated in the first phase of measures to create a Common European Asylum System, but participated in only two of the five measures proposed in the second phase. We believe that this partial participation risks undermining the UK’s influence in shaping these important areas of EU policy without bringing any commensurate benefit.

Looking to the future, our report called for a full and detailed evaluation of the GAMM’s different pillars and the EU funding instruments that support their objectives as part of any continuing effort. Over time, the committee believes that the GAMM will need to adopt a more focused approach, concentrating on the EU’s geographical and strategic priorities, as well as focusing on a smaller number of key objectives and instruments, which have a sound evidence base. We believe Turkey to be one of these priorities, especially in terms of tackling irregular migration, but also alongside more general engagement in tackling terrorism, transnational organised crime and promoting judicial co-operation on civil and criminal matters. The recent signs of a cautious thaw in the EU’s often troubled relationship with Turkey could provide a mutually beneficial opportunity to make progress.

The final chapter of our GAMM report focused on a specifically UK policy choice, the Government’s inclusion of international students in their current policy objective of reducing net migration to the UK to the tens of thousands per year. My committee was one of the five Select Committees of this House and the other place that have now concluded that that policy is mistaken and whose chairs wrote to the Prime Minister last January to argue that this has created the perception that overseas students are not welcome in the UK and risks serious damage to what is, after all, one of the UK’s most valuable and successful invisible exports. The latest figures from Universities UK for 2011-12 admissions validate that concern, with sharp drops in figures from undergraduates coming from one of Britain’s main higher education markets, the Indian sub-continent, and a major overall drop in postgraduate overseas enrolments, one of the most lucrative features of our industry. I could not put it better than it was put in a letter recently written by an academic leader in this country, Professor Malcolm Grant of UCL, who said:

“The flow of overseas students and highly talented staff has been the life blood of British universities, which are one of the great success stories still of the UK, and that is a matter which we all hope to be able to continue to foster”.

Whatever the statistical rights and wrongs of treating university students as economic migrants, and this debate is not principally about statistics, it surely makes no sense for the Government to be handicapping what should be a major growth industry for us—and it is globally a rapidly expanding market—in comparison with our main competitors. Again, the latest figures point towards us losing market share to our major competitors, in particular to the US. The Government frequently remind us that we are competing in a global race. Why then are they entering the British education sector for the sack race?

The committee’s report contains a number of other pertinent conclusions and recommendations. We hope that the Government will continue to give appropriate consideration to those recommendations. We look forward to comparing our report’s findings with those of the Government’s review of the balance of competences regarding asylum and immigration, for which a call for evidence was published by the Home Office recently. The Home Office at the same time published a call for evidence on the free movement of persons. While this concerns migration from within rather than from outside the EU, it is touched upon in our GAMM report, which notes the ending of transitional controls on migration from Romania and Bulgaria at the end of this year. We concluded that the free movement of persons is fundamental to the structure of the EU and an integral part of the single market. We also concluded that it would be neither desirable nor feasible to seek to revise its terms. However, we did support efforts by the Government to tackle benefit fraud as long as they comply with our obligations under the treaties. I note that, in part, the immigration Bill announced in the gracious Speech will aim to achieve this. No doubt this House will scrutinise that Bill carefully in due course.

I conclude with one plea to the Government. In drawing up the detail of that immigration Bill, particular care surely needs to be taken to not accentuate further the chilling effects on the recruitment of university students. This cannot be an empty risk, frankly, since the sort of issues that will be addressed—access to health provision and housing—are just the ones that concern students, researchers, academic staff and their parents in the countries of origin. I hope that the Government will take very careful steps to avoid any further damage to the higher education sector. I beg to move.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, it would be invidious to mention by name any who have contributed to this valuable debate. It is late enough on a Thursday to make that an extremely unpopular thing to do and I will not do it.

I thank the Minister. I often think that in debates on this subject he resembles St Sebastian, riddled with arrows which come from all directions. However, like St Sebastian in the best Renaissance paintings, he continues to smile as the arrows go through. I was grateful to him the last time for the comprehensive letter that he wrote, and I am grateful to him for his commitment to that now.

Perhaps I may leave the debate with two or three short points on student matters. It was a little unwise of the Minister to suggest that the universities are bringing this down on themselves by making such a fuss. I do not think that the Economist is normally considered to be the mouthpiece for special interests, yet it contained an extremely powerful leader some months ago saying that the Government’s policies were completely misconceived. That paper is read all around the world and so it is not sensible to blame the universities. After all, they need to speak up to the Government if they think that a vital British interest—the health of our higher education establishment—is being damaged.

Secondly, this is an expanding world market, both in undergraduates and, above all, postgraduates. So if we are only in a holding level, which is what the statistics show—although some of them show very sharp drops—it is, frankly, nothing like good enough. We are the second in the world in this market and we have got to maintain our market share. If it is an expanding market, that means an expanding figure, and we are not getting that at the moment.

Mark Harper was very patient when we had a lengthy meeting some time back at the noble Lord’s initiative, for which I am very grateful, and I hope that the noble Lord and his colleagues will think yet again about this issue. This is not a matter of statistics. We all understand the point being made about the statistics and we are not asking the Government to change them—although I have noticed that the Government have been a little less emphatic in their support of United Nations rulings of a non-binding nature in many other fields and seem to be clutching on to this one as though they are drowning in the middle of a sea. This is a substantive problem of public policy.

We will come later this year to the immigration Bill. I repeat my plea: will the Government, when considering that Bill, be careful not to introduce measures which will cause a further chilling in the atmosphere surrounding the recruitment and enrolment of students, postgraduates and researchers?

I thank all who have participated in the debate. I would like to place on record my committee’s thanks to our special adviser, Dr James Hampshire of Sussex University, who provided us with a mass of useful work and research and from whom all the statistical material was derived.

Motion agreed.

Visas: Student Visa Policy

Lord Hannay of Chiswick Excerpts

Thursday 31st January 2013 Lords Chamber

[Lord Hannay of Chiswick]

My Lords, I, too, thank the noble Lord, Lord MacGregor, for instituting this debate. For too long we have been playing hide and seek with Parliamentary Questions, and it was time that we had a proper debate. I declare an interest as a member of the council of the University of Kent and as one of the guilty men—I think they are all men—who signed their committees’ reports.

First, I will say a word about the figures, which are frankly not at all as Ministers and the Government have presented them to the House for many months. The latest figures show a drop in the enrolment of first-year non-EU overseas students in 2012 of 0.4% and that non-EU overseas students for postgraduate taught degrees fell by 2%. When the Government said that the overall numbers of non-EU students were up by 1.5%, as they did, they failed to reveal that that figure resulted from increases of students from multi-year courses admitted before the Government’s immigration policy began to bite, and they concealed the downward trend now under way.

The drop in postgraduates was the first for 10 years, and the only reason that the figures were not even worse was because of the continued growth of Chinese students, which has masked, to some extent, the sharp drop in students from the Indian subcontinent. All this will be a lot clearer, of course, once the Government’s welcome commitment to presenting student immigration statistics separately from general immigration statistics takes effect. However, that will not solve the problem. It will simply make it easier to understand and to assess.

Those figures are bad enough in themselves, but they are a lot worse when you realise that the overall market for overseas students continues to expand rapidly and that Britain has, for many years, been a world leader. We are second in the league table, with 13% of the market in 2010. Our figures should have been going up, not stagnating or declining, if our market share was to be sustained. BIS estimates are that the £8 billion contribution of higher education to our economy will rise to £16.9 billion by 2025. A continuation of the present trends on admissions will inevitably lead to that figure being revised downwards.

No one disputes that Britain’s universities are among the best in the world, so higher education has the actual performance and the prospective capacity to be among the most successful invisible exports that we have. Even if, over time, more overseas undergraduates do their first degrees at home, as could very well be the case, we should be well placed to secure a substantial share of the postgraduate market. That makes the recent drop in that category of admissions even more alarming.

We are told a lot by Ministers, from the Prime Minister downwards, that we are in a global race for exports. Why, then, are the Government making the higher education sector, with all its capacity for expansion, an entry in the sack race? What needs to be done to remedy this deplorable situation? It is no good the Government thinking that the odd ministerial statement about Britain being open to business and about welcoming the best and the brightest will do the trick, particularly when such statements are usually heavily overlaid, as was the Home Secretary’s recent one, by the imposition of new layers of immigration bureaucracy, which will inevitably further discourage applications. What is needed is nothing less than to remove international students, both undergraduate and postgraduate, from their target to reduce—

[Noble Lords]

Order.

[Lord Hannay of Chiswick]

Yes. I have been chased around all day by noble Lords on the government Front Bench and I am close to the end.

Otherwise, the fact that students are the largest category of migrants and that 75% of those are university students will act as a chilling factor.

[Noble Lords]

Order.

[Lord Hannay of Chiswick]

I am sorry. I am coming to the last sentence.

What damage will the Government do by doing what all these committees ask? These students are not taking jobs away: they are bringing jobs to this country. They are financing British jobs. I hope that the Minister, who may be feeling a little lonely today and who is well known for his sympathetic responses, will set about changing this disastrous policy.

--- Later in debate ---

[Lord Taylor of Holbeach]

That is why the Government have tackled the problem of private colleges being able to sponsor students. This does not apply to universities. I make it clear that there is no limit on the number of students that universities can sponsor.

The Government have overhauled the student visa regime to tackle bogus providers, which I think noble Lords will fully understand, and to drive up educational quality and standards. The fall in the number of student visas has come entirely from those sectors where abuse was most prevalent. As a result of our tighter controls, almost 600 colleges have been removed from the UK Border Agency’s register of providers. These measures have helped improve the reputation of UK education overseas and helped protect students from unscrupulous providers.

All colleges recruiting international students must now pass an inspection of their educational quality by an independent oversight body such as the QAA. Every institution must become a “highly trusted sponsor” and renew that status annually with the UK Border Agency. The Government have also introduced tougher requirements for students. These include higher standards of language competence and limits on the duration of student visas. Students extending their visas must now show that they are making genuine academic progress. We have removed the right to work from those attending private colleges. This was attracting too many students for the wrong reasons. The Government have also introduced a new power to allow UK Border Agency officials to refuse a visa when they are not satisfied that the applicant is a genuine student. These measures to tackle abuse have resulted in an overall fall in net migration, and the number of visas issued is at its lowest since 2005.

Despite this—and this is the key point to make in response what I think was the thrust of noble Lords’ arguments today—these reforms have protected our world-class universities. We have designed our system to favour our higher education institutions. Universities have been given some flexibility in how they test language skills. University students still have very generous working entitlements during their studies—20 hours a week during term time and full time, if they wish, during vacations. They can also undertake work placements amounting to 50% of their course. Postgraduate students at universities can bring dependants to the UK. There are also plenty of opportunities to stay on and work in the UK after study, and we are extending these further for the brightest and best—I hope to come back to that point a little later. When we announced these changes, Universities UK welcomed them as allowing,

“British universities to remain at the forefront of international student recruitment”.

As the Government have reduced the number of student visas overall, the latest Higher Education Statistics Agency figures show an increase of 1.5% in the number of international students at universities, at a time when UK entrants have fallen. Listening to the debate today, some noble Lords unfamiliar with the subject might have been left with the impression that the number of overseas students wishing to come to our universities was declining. In fact, the university sector now accounts for three-quarters of student visas—up by about half in the year to September 2011. I know the latest UCAS statistics are only partial, but the statistics released yesterday show that this year new applications to UK universities from non-EU nationals are up by nearly 10% compared with this time last year. We await the final numbers, but I am sure that noble Lords will acknowledge that this refutes the suggestion that this country no longer has an attractive offer to present to higher education undergraduates.

There has been much discussion today about changes in numbers coming to our universities to do particular courses or coming from particular countries. In fact, last year’s HESA statistics show that of the top 10 originating countries, seven showed increases. From China there was a 17% increase and from the US a 5% increase. UCAS, as I said, has received 10% more applications from Chinese students compared with this time last year, and there is a 19% rise in applications from Indian students. Therefore, nothing inherent in our reforms is deterring international students. We need to consider whether in certain countries there are particular factors in play. We should be positive in our confidence that we have got this matter right. Universities themselves—and, if I may say so, vice-chancellors, chancellors and all the distinguished academics here today—should take the opportunity to make it clear that Britain will always be open to bright international students.

We have also heard today—in particular this was explained by the noble Baroness, Lady Valentine—about the need to remove students from the measure of net migration. The independent Office for National Statistics is responsible for national statistics. In accordance with the internationally agreed definition in place since 1991, these statistics define a migrant as someone changing their normal place of residence for more than a year.

[Lord Hannay of Chiswick]

In the noble Lord’s latter sentences he was tilting at a man of straw. All of us who have been involved in this understood many months ago that it is not the way the statistics are marshalled that really matters but how the Government apply the policy. This policy has been set out again and again with the Home Secretary and Prime Minister saying that their objective is to get net migration down to the tens of thousands. That is what does the damage. Fixing a separate statistical approach will not do.

The other thing is that the noble Lord has given us a lot of figures. Can he comment on two points in them? First, he has not given any idea of the size of the market and its speed of growth. I think he will find that the market is growing very rapidly and Britain is losing market share. That is surely what matters in business. Secondly, he has not taken on the point that the figures at the moment are being flattered by students on three-year or four-year courses who came to this country before the chilling effect of the Government’s policy took place. I wonder whether he could deal with those points.

[Lord Taylor of Holbeach]

There is one basic policy—there is no limit on international students coming to this country. That is the fundamental and basic policy. I will not get involved, if the noble Lord will forgive me, in a discussion about statistics. I understand the weakness of arguments based on statistics. However, it is important to emphasise why the Office for National Statistics includes students in the net migration figures. It is because of the international definitions which govern these things. I emphasise to noble Lords that there is no limit on international students coming to this country.

Immigration: Home Office Meetings

Lord Hannay of Chiswick Excerpts

Monday 3rd December 2012 Lords Chamber

[Lord Taylor of Holbeach]

I have recently written to the noble Lord because he asked a similar question last week on this issue. Obviously, it is important that we have a regime that is capable of ensuring that people who come to this country are fit and proper persons to be here.

[Lord Hannay of Chiswick]

My Lords, does the Minister agree that the considerable number of students who were threatened with expulsion following the action at London Metropolitan University were not bogus at all? That presumably was why the Government forked out £2 million to find them new places. We should not shelter behind figures that do not really prove what the Minister tries to make them prove. This sector is enormously competitive. We should be increasing it by much more than the figures he gave and would be so without the chilling effect of the Government’s Minister for immigration going out and beating his chest and saying how jolly well he had done to keep all those students out.

[Lord Taylor of Holbeach]

The noble Lord is perfectly right. The university sector is very important, as is the contribution made by international students to this country and the economy. I reiterate to noble Lords that there is no limit to the number of students who can come to the UK. Put simply, if they can speak basic English and have sufficient funds and the necessary qualifications, they can come.

EU Drugs Strategy: EUC Report

Lord Hannay of Chiswick Excerpts

Thursday 19th July 2012 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

That this House takes note of the Report of the European Union Committee on The EU Drugs Strategy (26th Report, Session 2010–12, HL Paper 270).

[Lord Hannay of Chiswick]

My Lords, the European Union Committee report on the European Union drugs strategy for 2013 to 2020 was published on 16 March of this year, and I am glad now to have the opportunity to bring it to your Lordships’ House for debate in my capacity as chairman of the Home Affairs sub-committee that conducted the inquiry. I thank the noble Lord, Lord Henley, for the Government’s full and helpful response to the report. In his letter of 10 May, he described our report as “extremely timely”, and so it was.

On 8 June, just a month later, the Council agreed that the EU did indeed need a new drugs strategy for 2013-20, and that it should be adopted by the end of this year. That in itself was a welcome development. Vice-president Reding, the commissioner responsible for this area of policy, described the strategy in somewhat slighting terms as,

“a nice piece of literature”—

and “wishful thinking”. We took a different view: that a new strategy was needed to show the direction in which the member states wished to go. The Danish presidency clearly agreed with that. The first draft of the strategy has already been discussed in the Council’s working group, and I understand that it is to be published shortly. So we got our views in ahead of the game, which is what this House should aim to do whenever possible with its thematic reports.

Our report made a number of recommendations, and I have time to refer to only a few of them. The point that I wish to emphasis the most, and to which we returned more than once, is the need for an informed and objective public debate on the drugs policies of the different member states as an integral part of the negotiation and adoption of the new drugs strategy. We were struck during the course of our inquiry by the paucity and poverty of any such public debate anywhere in Europe. This should be remedied.

In the course of our inquiry, we learnt about the policies of a number of member states, from the Swedish zero-tolerance approach to the experience of Portugal, where the possession of drugs for personal use was decriminalised in 2001. Portuguese law also greatly improved the harm reduction measures available to drug users. We took evidence from Jose Socrates, the former Prime Minister of Portugal who introduced that policy, and from the director of the Portuguese Institute for Drugs and Drug Dependency.

What the committee did not do was consider whether to make any recommendations for a change in the law of this country towards the decriminalisation of possession and use. That would have been outside the terms of reference of our EU committee, and we took no position on it. What we did was to urge forcefully that the formulation of a new EU drugs strategy offered a golden opportunity to widen the public debate on these different policies, in the hope of achieving a better meeting of minds on the best way forward in the EU in general and in this country in particular.

We stressed that such a debate should be “informed”, “objective” and “dispassionate”—and we chose those words with some care. The press have an important role to play. However, I am afraid that some organs of the United Kingdom press are notoriously lacking in objectivity on this subject. The noble Baroness, Lady Meacher, in her evidence, singled out the Daily Mail. The noble Lord, Lord Mancroft, told us that it had behaved “grossly irresponsibly”. In the unlikely event that the Daily Mail reports this debate, I shall no doubt be accused of seeking to have drug trafficking legalised. I hope not. Even the Daily Mail should recognise that there is an argument to be made that imprisoning drug users is not necessarily best for them, best for society, or even the best use of our prisons. That argument has nothing whatever to do with the legalisation of drug trafficking.

As I say, I hope that publication of the new EU strategy will trigger such a debate. I am not, however, overconfident of that. The Council has already, without any public debate, agreed on 19 points that will shape the strategy. None of them deals with national drugs policies. Nor should they, because the Commission and Council agree that this should remain within the competence of the member states. However, EU drugs policy is an impressive instance of subsidiarity and action, and we found no one who advocated changing it. Somewhere in the document that the Council has shaped up so far, though, there could and should have been some recognition that member states can learn from one another in formulating their policies.

Perhaps the Minister could tell us whether he agrees, and if so what steps the Government can take to broaden the debate, both nationally and internationally. In that context, I welcome the initiative by the UK’s Drugs Policy Committee to hold a public debate on 19 November, entitled “New Generation, New Problems, New Drugs: Time for a New Approach”, at which the right honourable Oliver Letwin will make the keynote speech. I hope that that debate, including the Government’s contribution to it, will cover the international as well as the domestic aspects of the issue.

I turn to the question of new psychoactive substances, or NPS, as they are known. The Government’s action plan, published on 17 May, contained a commitment to ensuring that the new EU strategy includes activity to tackle the problem. To that extent we welcome it, but it does nothing to counter our criticism of the current EU legislation: that it is slow, cumbersome and ineffective. He pointed out that in the space of six years only two substances have been banned using the EU Council decision. It took the EU one and a half years to ban mephedrone. By that time, 15 member states including the UK had already banned it under their national laws. The Government have undertaken to promote robust co-ordinated action at EU level to tackle NPS. Does this include helping to design and implement a rapid and effective EU planning procedure?

The reduction of drug trafficking and the destruction of international criminal networks is, naturally, one of the objects of the current strategy and will undoubtedly be one of the objects of the next one. There is no doubt that the tracing and confiscation of the proceeds of crime is potentially one of the most powerful weapons in the armoury of states, although it has yet to fulfil that potential to the full. The role of Europol, which devotes something like one-third of its work to this field, is vital, and that is something that the Government will need to keep in mind as they conduct their audit of EU competencies and as they approach the Protocol 36 decision in 2014.

There are two additional steps that the Government could take on the confiscation of proceeds, and I hope that they will. The first relates to the draft directive on the confiscation of the proceeds of crime. In a report published in April the committee recommended that the Government should opt into the draft directive. I repeated that when the report was debated on 22 May, and the recommendation that we should opt in was endorsed without dissent by this House. The draft directive was debated in another place on 12 June, and in advance of that debate the Government announced that they would not be opting in at this stage. I believe that that was putting political expediency ahead of the national interest. The key issue here is not whether we in this country already have in place all the measures in the draft directive—we have. Rather, it is whether we can shape the directive so that we can recover the proceeds of criminals who hold them in other member states. I hope that the Minister can assure me that when the negotiations are concluded and the directive is ready for adoption, the Government will revisit that decision and do so in a positive spirit.

The second step that the Government can take is one that they and their predecessors should have taken long ago: to sign and ratify the Council of Europe convention on money-laundering, the Warsaw convention. The committee has raised this question time and again in this House in taking evidence from Ministers and officials and in correspondence with Ministers, and I make no apology for returning to it yet again. The previous Government undertook to ratify the convention early in 2010. For this Government, the noble Lord, Lord Henley, assured the committee that he was pretty sure that the United Kingdom was compliant with the convention, but that the Home Office did not currently have the resources to review that. I asked him when the Government would sign the convention, to which he replied,

“I would hope we would do so within the next year or so but I am not going to be any more precise than that”.

The response to our report was in fact even weaker. The Government are confident that the work required to enable them to reach a fully informed position in respect of signing and ratifying will “progress significantly this year”. What does that mean? Surely it would not take much more than a week—or, I would suggest, the amount of time that it has taken to write the brief for the Minister and all the officials who came to our committee—to check to see whether there are in fact provisions of the convention not already implemented in our law. If any such provisions are found, steps can then be taken to remedy the situation.

A failure to sign one of the major international instruments for combating serious organised crime, including drug trafficking, frankly does not give the impression of a Government who take the fight against crime all that seriously. In the light of the issues raised by HSBC’s failure to enforce its own money-laundering procedures, that hardly seems to be the message we should be conveying at this moment. Our failure so far to sign and notify the Warsaw convention weakens our hand in pressing other European countries, which may well be a good deal less compliant than we are in this matter, to do so.

The Council’s conclusions state that,

“in formulating the new strategy appropriate consideration should be given to recommendations put forward by high-level scientific societies”.

The committee, alas, cannot claim to fall within that description, but we did take a great deal of high-level evidence on which to base our conclusions and recommendations. We hope that the Government will not only respond positively to them, as they have begun to do, but will help to persuade other member states to do so too.

I would not wish to conclude my remarks without paying a tribute to the work of the European Monitoring Centre for Drugs and Drug Addiction, in Lisbon. EU agencies often come in for a good deal of flak, sometimes deservedly so. The EMCDDA seems to us to be performing a genuinely valuable function with modest resources. It is important that it be enabled to continue its excellent work.

Our report raised a number of serious questions. I have by no means referred to all of them. I hope the Minister will answer those questions, and I look forward to hearing his replies. I beg to move.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, I thank the noble Lord for his response to the debate, which was helpful in many respects. I can assure him that I was not the slightest bit worried that the Daily Mail might be up in the Gallery; I was merely worried that its recording of anything I said might not be all that accurate. If that paper is not there, the problem will not arise.

The one point I still regret a bit is the Warsaw convention. At the risk of banging on about this, I point out that it is not that we believe that the British Government’s money-laundering arrangements are not consistent with the Warsaw convention—I accept what the noble Lord says, that they almost certainly are—it is the example that we set by not signing and ratifying an international convention that deals with a matter of great importance to us, and where we want to encourage others to see that we take it seriously and to take it equally seriously themselves. That is the basis on which I continue to urge him to find the one or two man hours necessary to achieve this, particularly in the light of the not very pleasant story about HSBC. I do not want to go into that as it is not proper to do so here, but one can see that we would not want the impression that we are a bit sloppy about these things to get around. I am sure that he does not want that, and neither do I.

I shall not reply to the debate. I thank all noble Lords who have participated; it has been extremely gratifying that so many people participated from outside the narrow limits of the EU Select Committee and the sub-committee that I chair. It was not, as these debates, alas, quite often are, simply the usual suspects, and for that I am extremely grateful. We had a debate that can best be summarised in the single word “thoughtful”, and that is as it should be. It was a thoughtful debate with a lot of different views being expressed, and I hope that it will help the Government among others in their formulation of policy.

I conclude with a point raised by the noble Baroness, Lady Massey, in her contribution; she has a lot of expertise and of course a specific role in this matter. I think that I understood her to say that she was not quite sure that there was that much difference between what we did here and what the Portuguese now did under their new policy. That struck a chord with me; I think that she is right. The big difference is that the Portuguese are proud of what they have done and go around telling everyone about it, while in this country, although we have a much more humane policy—the Minister referred to this—with much more emphasis on harm reduction than in the past, it still remains the policy that dare not speak its name. That is why the best contribution that the report produced by my committee could make would be if it started a wider thoughtful debate about these issues. I beg to move.

Motion agreed.

Immigration: Foreign University Students

Lord Hannay of Chiswick Excerpts

Tuesday 3rd July 2012 Lords Chamber

Asked by

[Lord Hannay of Chiswick]

To ask Her Majesty’s Government what consideration they have given to the benefits to the United Kingdom of ceasing to classify foreign university students as economic migrants.

[Lord Hannay of Chiswick]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a member of the council of the University of Kent.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the United Kingdom uses the internationally agreed definition of the migrant, which is someone who comes here for over 12 months. It is right that students staying for that period are counted because during their stay they are part of the resident population. It would damage public confidence in statistics to discount them.

[Lord Hannay of Chiswick]

My Lords, I thank the Minister for that somewhat familiar reply. The main reason he has given in replies to earlier questions—he has just given it again—for not changing our present practice of classifying students for policy purposes in the net migration figures is the existence of a UN guideline to the effect that anyone who stays for a year is a migrant. Can he confirm that the guideline does not have the force of international law, is therefore not binding on the British Government and, further, is not applied in the calculation of net migration figures for policy purposes by our main competitors in the higher education sector—the US, Canada and Australia? Is it not about time that the Government ceased to handicap the most rapidly growing and most promising invisible export sector we have?

[Lord Henley]

My Lords, I fail to understand what the noble Lord and Universities UK are getting at in their objections to us applying proper statistics as agreed by international convention, which is what we follow. If the noble Lord is suggesting that by changing the way we count the statistics, we will make life easier for universities, again I fail to understand him. I do not see why they are discouraging undergraduates from coming to this country. All we require of the students is that they show an ability to speak English and that they have an offer of a place at a university in the United Kingdom. The statistics simply do not come into it, so fiddling with them would discourage students because it would imply that probably the only subject they ought to come here to study would be statistics.

European Court of Justice: Jurisdiction

Lord Hannay of Chiswick Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Henley]

My Lords, as I said in my original Answer, we are committed to making a decision by May 2014. It is a very important decision and we understand its severity. That is why we have committed ourselves to a debate in both Houses of Parliament, followed by a vote. In the end, the decision will be based on what is in the interests of the United Kingdom. My right honourable friend has given that assurance.

[Lord Hannay of Chiswick]

My Lords, the Minister will recognise that in January 2011, when committing the Government to a vote in both Houses on Protocol 36, the Minister for Europe said in another place:

“The Government will conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees and a further announcement will be made in due course”.—[Official Report, Commons, 20/1/11; col. 51WS.]

Will the Minister say what sort of consultations they have in mind and what their timing will be? Does he agree that all these consultations need to take place in a deliberate and fully transparent way if the subsequent vote in both Houses is to be conducted on a sound evidential basis?

[Lord Henley]

My Lords, the precise words that the noble Lord used about the Government conducting further consultations—I could go on—are in front of me in my brief. I agree with them and that is what we committed ourselves to in January 2011. How we conduct those arrangements will be a matter for discussions in the appropriate place at the appropriate time between the European Scrutiny Committees and the Commons and Lords Home Affairs and Justice Select Committees. We need to discuss these things with a number of different committees. I make it clear to the House and the noble Lord today how seriously we take this and why we think it vital that we eventually have that debate and vote in both Houses.

Proceeds of Crime: EUC Report

Lord Hannay of Chiswick Excerpts

Tuesday 22nd May 2012 Lords Chamber

Moved By

[Lord Hannay of Chiswick]

To move that this House agrees the recommendation of the European Union Committee that Her Majesty’s Government should exercise their right, in accordance with the protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, to take part in the adoption and application of the proposal for a directive of the European Parliament and of the Council on the freezing and confiscation of the proceeds of crime in the European Union (document 7641/12) (32nd Report, Session 2010–12, HL Paper 295).

[Lord Hannay of Chiswick]

My Lords, I beg to move the Motion standing in my name on the Order Paper. It is in my name because I have the honour to chair the European Union Committee’s Sub-Committee on Home Affairs, which at the end of the last Session prepared the report now before your Lordships’ House.

As your Lordships know, when the House considers reports of the European Union Committee, this is almost invariably on the Motion that the House should take note of the report. In the case of this report, the Motion invites the House to agree the committee’s recommendation. The reason for this is that the report deals with draft legislation falling within the area of freedom, security and justice, and the legislation will apply to this country only if the Government exercise their right under the protocols to the treaties to take part in the legislation—in other words, if they opt into it. They have to do this within three months of the proposal being presented to the Council, which, in the case of the directive we are considering tonight, means before 15 June. The committee believes that the Government should do so, and the Motion invites the House to agree with the committee.

Last year, this Government repeated an undertaking given by the previous Government—usually known as the Ashton undertaking—that time would be found to debate opt-in reports well before the expiry of the three-month period. I am grateful that, despite Prorogation, the Government have made time available for this debate early enough for them to be able to take the views of the House into account before they formally reach a decision on whether to opt in.

Freezing and confiscation of the proceeds of crime is one of the most effective ways of fighting crime. Since criminals are much more mobile and much more ingenious about hiding these proceeds, it clearly strengthens this aspect of the fight against organised crime if such freezing and confiscation can be enforced across the whole of the European Union and not just within one country’s borders. There is current EU legislation on the subject in a series of framework decisions stretching from 2001 to 2006. Two of these establish minimum rules on freezing and confiscation of proceeds of crime. There is, however, nothing to prevent member states enacting more stringent legislation, as this country has done in the Proceeds of Crime Act 2002. The new draft directive that we are debating this evening would supersede these two framework decisions and add to them fresh powers—in particular, the power to confiscate the proceeds, despite there having been no criminal conviction because, for example, of the death or flight of the suspected person. This is a power already available to the courts of this country. My committee supports the proposal that the courts of all member states should be required to have this power.

The confiscation of the proceeds of a crime is of course an integral part of the penalty—the criminal should not be allowed to profit from their ill gotten gains—but even more important is the deterrent effect. Criminals who know that the proceeds of their crimes are likely to be confiscated may think twice before embarking on criminal activities. It is therefore a weakness in our law enforcement system that, as things are, the proceeds are not all that likely to be confiscated. The figures available are, unfortunately, very speculative, as estimates of the proceeds of crime vary wildly. In the United Kingdom one estimate is that, of the £15 billion annually criminally acquired, in 2009-10 only £154 million was recovered to the state. That is net of assets recovered for the victims and of management expenses but, even so, the proportion of the proceeds recovered cannot on any measure exceed 3%. The position in other member states is no better. The deterrent effect is thus currently small but not negligible.

The Costa del Sol has been the haven of choice for criminals to retire to and enjoy the fruits of their labours. The statistics from Eurojust show that in 2010 one case in Spain resulted in the confiscation of €112 million, with many other cases netting smaller amounts and, in addition, a number of properties, boats and luxury cars. This demonstrates the importance of all member states having these powers.

The Government have stated on many occasions their determination to pursue the fight against serious organised crime. In my view, this entails not just having adequate domestic law in the United Kingdom but bringing pressure to bear on other member states to have provisions in their own laws on freezing and confiscation which at least meet the minimum requirements laid down in this directive. The committee therefore believes that it is important that the Government should opt in to the proposal and play a constructive part in negotiating a strong directive, and support other member states which may have weaker law enforcement systems thereafter to implement the system effectively. That is where there have been doubts in the past and I hope that this new legislation will provide a basis for much more effective work in the future.

There is one aspect of the draft which has caused the committee real concern. It is a regular feature of serious crime that the criminal will launder the proceeds internationally and put them into assets in many countries. A conviction in one country will therefore be fully effective only if a confiscation order made by one court is automatically recognised and enforced in other member states. There are two framework decisions dealing with mutual recognition of freezing and confiscation orders, but the directive being discussed tonight does not deal with that topic. We hoped that the directive would repeal, replace and strengthen the provisions of all four framework decisions. Instead, it repeals, replaces and strengthens the two dealing with the making of freezing and confiscation orders, but leaves in place those dealing with mutual recognition of orders made in other countries’ courts. The committee fears that that may be an unintended consequence of the arbitrary and illogical division of the former Commission directorate of freedom, security and justice into two separate directorates, dealing respectively with justice and home affairs. I would like to hear the Minister’s views on this; perhaps he could in any case tell the House whether the Government will argue in the negotiations for the new directive to be extended to include mutual recognition provisions as well.

This is only one of a number of aspects of the directive that we would like to see raised in the negotiations. Others are detailed in our report. Some are technical, but there is one to which I should draw attention. If the Government were not to opt in, the United Kingdom would remain bound by the current provisions of the earlier framework decisions, which will thus be included in the list of those measures on which the Government have to decide—by May 2014 at the latest—whether all or none of them should continue to apply to the United Kingdom. That arises under Protocol 36 to the treaties. I am not wishing to raise that extremely interesting and sensitive issue tonight, but merely say that it is one about which your Lordships will hear more in the period ahead of us, not least from the European Union Committee, which will be carrying out an inquiry into the background to the 2014 decision in due course, and nearer that time.

We are continuing to keep the directive under scrutiny, so at this stage one matter only comes formally for decision to the House: whether or not the Government should exercise the United Kingdom’s opt-in. For the reasons I have given, the committee is firmly of the opinion that the Government should do so. I hope very much that we will hear from the Minister at the conclusion of the debate that this is their intention.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, first, I thank all those who participated in this short debate and have made very valuable contributions. Perhaps I may be permitted to thank in particular the noble Lord, Lord Hodgson of Astley Abbotts, whose departure from the sub-committee that drafted this report is a cause of regret to all its members, because he has made a remarkable and constructive contribution to our work over the past three years. He will be sorely missed.

I join those who spoke about Michael Collon, our clerk, who has guided this committee for so long and has now moved on to greater things. He will also be missed.

As to the points raised in the debate, I followed carefully what the Minister said. I understand the procedural complexities of the matter and the need for the Government to handle their relationship in the other place in a way that is consistent with reaching a decision on this. I admit to a scintilla of regret that the Minister could not rise to his feet this evening and say that the Government had decided to opt in, but patience is sometimes rewarded. I can see why they are in the position that they are in.

The only point that I make is that from my own experience, and I think from the experience of much of the legislation in this area, it is a better way to influence this sort of legislation effectively if one opts in and negotiates as a full negotiating partner than to have to try to do it from the outside with the use of the potential opt-in at a later stage when other people have shaped the legislation. I am sure that the Government would in those circumstances still try to exercise their influence, but in my view they would have less influence than if they opted in before 14 June. So I very much hope that that is a decision that they will come to. This may be a triumph of hope over experience, but I even hope that the scrutiny committee in the other place may take a somewhat less negative view than it has on many matters, particularly given the importance to this country of Europe-wide legislation to deal with the confiscation and recovery of assets. I do not find it believable that they should feel that it is not a reasonable objective of our national policy and in our national interests to see tougher provisions Europe-wide, not just in this country.

I hope that this debate and its outcome, which I suggest will be the House’s approval of the Motion on the Order Paper, will be factored into the Government’s consideration and will be given due weight.

Motion agreed.