EU: Police and Criminal Justice Measures

Lord Richard Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Lord Richard]

My Lords, I will deal with a small point to start off with. As I understand it, no impact assessment will now be coming until the final list of measures to which the Government are proposing to opt in is determined, as the noble Lord, Lord Bowness, will notice from the document that we got this afternoon—at long last, the government response to the Select Committee report.

I find it difficult to see the reasons for this debate. I am not absolutely certain why it is being held, or held in this way, or of the procedures through which we are being put. The Government have produced a procedural mess into which, unless we are very careful, they, the country and these issues will sink. It may be worth while briefly going back to the origins of this whole affair.

The Government having declared that they were minded to exercise the opt-out, the matter was then inevitably transferred to your Lordships’ Select Committee for scrutiny. The committee decided that, since the matter was so unusual, the scrutiny should be conducted by a joint committee consisting of Sub-Committee E and Sub-Committee F sitting together. This was a precedent but it seems to have worked extremely well. As a former member of Sub-Committee F, I express my thanks to the noble Lords, Lord Hannay and Lord Bowness, for the way in which they jointly chaired that committee.

I will not bore the House tonight with details of how the committee proceeded. Suffice it to say that we took a great deal of evidence and heard from a large number of witnesses, including the Home Secretary and the Lord Chancellor. Rarely—I think never before—have I participated in a process in which the evidence was so overwhelmingly in one direction. It was really quite extraordinary. Members of the committee were actually looking hard for evidence on the other side of the argument, but evidence was there none.

I will quote two paragraphs from the report. We said:

“Beyond concerns about the EAW, which we have already discussed in Chapter 6, very few of our witnesses drew our attention to any specific measures that they considered to be detrimental to the interests of the UK”.

The committee’s conclusions were clear and quite firm:

“We therefore consider that there are compelling reasons of national interest for the United Kingdom to remain full participants in most of the measures and agencies referred to in this Chapter. As to the remainder we have identified no persuasive reason for the United Kingdom to withdraw from them”.

We have waited until today to get the Government’s response to that report. On the very day of this debate, indeed, at last we got it. That is very interesting and, indeed, rather revealing.

In the mean time, however, the Government acted by tabling a Motion in the House of Commons last week, and in your Lordships’ House today, determining that the opt-out should be exercised. It is not a question of discretion. It determines that the opt-out should be exercised, and that is expressly the opinion of this House if it passes the Motion. At the same time, the Government accepted an amendment in the other place that the process of opting back in should be delayed until after three Select Committees of the House of Commons had reported on the measures in respect of which we should exercise the opt-back-in.

The reason for this extraordinary mix-up seems to have been the inability of the Government to produce Explanatory Memoranda in the timescale that they had themselves specified. They had told us that we would get them in February of this year. Had they produced them in Feburary, those Select Committees in the other place could have been engaged in their scrutinising role for some months past. As it is, they will have to do it by October.

The main difficulty that arises from all this relates to the credibility of the Government’s commitment to opt back in to the 35 measures that they have set out. The Lord Chancellor, in his closing speech in another place, said:

“The Government have taken a decision in principle that it will be in the interests of the UK to join a number of measures that involve international co-operation in fighting serious … crime”.—[Official Report, Commons, 15/7/13; col. 851.]

That statement understandably provoked a reaction from Mr Cash, who immediately asked whether the Government could take the view that it was not appropriate to opt in if the evidence taken by the three committees led to the conclusion that that was not in the interests of the United Kingdom.

That is precisely the point on which some of us on this side of the argument need reassurance. Can I take it—and I hope that the Minister will deal with this directly in his summing up—that the Government’s firm intention is that they wish to opt back in to the 35 measures set out in the Command Paper and that they consider those to be in the national interest?

This is really a political argument and not a legal one. There are obvious risks in the policy that the Government are pursuing. There is no guarantee that the Commission and member states will be prepared to give Britain an easy route back in. There are bound to be some gaps and delays.

If one looks at the 35, I do not think that one can objectively doubt that they are in the national interest. Indeed, if one looks at the Government’s response to the Select Committee’s report, it is clear that they are quite warm towards these measures; I am conscious of time and will not go into the details on that. The tone of the Government’s response is favourable to the opt-back-in of the 35 measures, but this brings us to the real difficulty. If we pass this resolution, that, coupled with the Commons, will give the Government parliamentary authority to exercise the opt-out. There is no such parliamentary authority for the Government to exercise the 35 opt-ins, and there is certainly no obligation—only a declaration of intent. Let us assume that we opt out and then nothing happens. What are the consequences of that? The result is that the 35 measures will lapse. Moreover, the procedure now being used by the Government in the other place—namely, giving Select Committees opportunities to look at this matter in the way that they are—is itself a recipe for delay and continued friction.

The truth is that this procedure is politically disingenuous. The noble Lord, Lord McNally, referred to smoke and mirrors. There is a lot of smoke, and there are certainly one or two mirrors around the Government’s position on this. The noble Lord shakes his head. I do not agree with him. The Government position is to pretend that they are getting rid of significant things in the hope that nobody will notice that what they are doing is not getting rid of significant things but getting rid of things which are defunct, unimportant or irrelevant. Then they will opt back in, so it is said—if they can get the Commission and other bodies to agree—to things which are important and relevant.

The safe way to do this would have been not to opt out in the first place. There is absolutely no reason why we should have taken that risk. Alternatively, if we did opt out, the other way of doing it would be to do the two things together, at least as far as Parliament is concerned. Why could we not have had a vote on a Motion approving both the opt-out and the list of measures to which the Government wish to opt back in? We do not have that. It is not in this Motion. It was certainly not in the Motion that was debated in the House of Commons last week. If that had happened, it would have been neater, crisper and more comprehensive. As it is, we should not vote to approve one side of the equation without being in a position also to approve the other side. That is by far the safer way to proceed.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, I must declare an interest, as a member of EU Sub-Committee E, one of the two sub-committees that produced the report that we have been discussing this evening. I also remind the House that I am a trustee of Fair Trials International, which has a particular interest in the operation of the European arrest warrant. Given the lengthy speakers list and the short time available to us, I will cut to the chase.

For me and my noble friend on the Front Bench, judging by some of his opening remarks, one of the fundamental problems that the Government faced in addressing this opt-out decision is the nature of the wording of the opt-out negotiated under Protocol 36 by the last Government. This is its all-in or all-out nature. There is no picking and choosing; no matter how futile, irrelevant or unnecessary a particular measure may be, the totality has to be accepted or rejected.

I was glad to hear from the noble Lord, Lord Hannay, that on reflection he would not divide the House on his amendment. That would have seemed an unwise course of action. First, it would have treated the issue as black and white. As I said, while that construction is placed on us by the wording of Protocol 36, within the areas covered by the protocol the pluses and minuses of the policy issues are much more nuanced. Secondly, while the Government should have responded earlier to the joint sub-committees’ report—I entirely share the view of other noble Lords that producing the response at noon today is really not good enough—nevertheless Members of the House not on those sub-committees should have the opportunity to express their views this evening. That answers the point made by the noble Lord, Lord Richard, about the rationale for this debate. It will no doubt help to inform the Government’s thinking. Finally, as I understand it, this is only the first time round the track, because we will come back for a further debate and discussion as the Government’s thinking and approach to each individual opt-in or opt-out decision become clear.

[Lord Richard]

My Lords, since the noble Lord quoted me, I thank him for giving way. He says that the purpose of this debate is to help to inform the Government’s views. Why, in that case, is this not a take-note Motion? Why is it framed in the express terms of the opt-out?

[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.

--- Later in debate ---

[Lord Richard]

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

[Lord Taylor of Holbeach]

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

--- Later in debate ---

[Lord Taylor of Holbeach]

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

[Lord Richard]

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

[Lord Taylor of Holbeach]

I have given the noble Lord the answer.