My Lords, it is a pleasure to follow the noble Lord, Hannay of Chiswick, with whom I, as the then chairman of the justice, institutions and consumer protection sub-committee worked closely in the previous Session of Parliament when that sub-committee and his home affairs sub-committee conducted the inquiry into the UK opt-out. I agree with many of his comments and I should tell your Lordships that, had a new Motion not been laid before the House tonight, and had we been debating the terms of the original Motion, I would have supported the amendment of the noble Lord, Lord Hannay, and voted for it, had he called a Division.
I speak tonight, however, on my own account and I cannot speak for the current chairman, the noble Baroness, Lady Corston, or the current members of the committee, of which I am no longer a member. Members will understand that for that reason, and because it arrived in the House at about 2.30 pm, I will not comment on the Government’s response to that report.
I can however speak of the findings contained in that report and the evidence on which it was based. Although the sub-committees had decided to carry out an inquiry prior to 15 October and the announcement of my right honourable friend the Home Secretary, who stated on that occasion that the Government were minded to exercise the option, that it would be the subject of a vote in each House, and that the relevant committees of each House would be consulted before reaching a definitive position, the process of which tonight’s Motion forms part was set in train.
Subsequent to my right honourable friend’s Statement, five Explanatory Memorandums were promised to your Lordships’ committees. They were promised for January or early February—and latterly promised latterly an impact assessment. The impact assessment has not yet, to my knowledge, been seen and the Explanatory Memorandums were produced as the White Paper referred to by the noble Lord, Lord Hannay, only on 9 July, when the Home Secretary made her Statement to the other place. She also made it clear on that occasion that what must happen next is a process of negotiation with the European Commission and other member states, and that those negotiations will determine the final list of measures that we formally apply to join.
The Motion originally laid before the other place expressed the belief that we should opt out, rejoin the measures that were described as being in the national
interest to rejoin and seek further reports from the relevant committees prior to formal discussions with the Commission and the Council on the set of measures in the White Paper—all prior to formal application to rejoin. In parentheses, I think the delay in opening the negotiations until October will prove unfortunate, as time—and as much time as possible—will be needed for the negotiations to rejoin.
That original Motion at least contained a definitive linkage between the decision to opt out and the 35 measures described at various times as being in the national interest and a commitment to negotiate on those matters. However, that Motion was amended and the Motion carried in the other place omits reference to those matters in the national interest and the Command Paper. The right to exercise the opt-out is absolute and is in the treaty, but readmission to measures to which we wish to be readmitted is not.
The Schengen measures require unanimity in the Council; the other JHA measures are dealt with by the Commission, who may present a proposal to the Council for transitional arrangements—decisions in which we will not necessarily participate. The principle of coherence means that we may not he able to rejoin one measure without rejoining another linked measure, and that may not be acceptable to the UK
This will all take time and there is no certainty. When we were preparing the report, we received no evidence that the Commission would seek to frustrate our rejoining. As to the other member states, the Government were unable to tell us what conversations had taken place. However, like the noble Lord, Lord Hannay, I agree with the proposal to reapply to join the 35 measures described as being in the national interest.
The Motion originally laid before the House, as has been stated already, was merely to note those proposals and that was not good enough. I am therefore very grateful to my noble friends Lord McNally and Lord Taylor of Holbeach for recognising the significance of these measures and agreeing that the Motion should endorse the Government’s proposals in the Command Paper, which sets out the 35 measures that they will seek to rejoin.
The final decisions as to opting out and the measures to be apply to rejoin are executive decisions for the Government, albeit that they have spoken about consulting Parliament. So I ask the Government to assure the House that the House will be informed if their intentions regarding the 35 should change.
What of the other 130-odd measures? These, together with the 35, are the subject of the Explanatory Memoranda in the White Papers. I have to say with regret that the Explanatory Memoranda are extraordinarily badly prepared—and even worse presented. It is not clear on what basis the Government chose the 35. No clear reasons are given, apart from the Prüm decisions where there are concerns about costs. Some are stated to be defunct and so presumably of no real concern; some are said not to be needed because we have dealt with them administratively or in domestic legislation. As the noble Lord, Lord Hannay, said, none is stated to be harmful.
House of Lords reports are generally acknowledged as being evidence-based. The report on the opt-out was so based. We made it clear that decisions on the opt-out should not be made without certain information on which to base that decision. In our report, members of all parties and none concluded that the Government had failed to make a convincing case in favour of the opt-out. We also made it clear that we could not form a view about which measures we should seek to opt back into without a provisional list of measures and an analysis supported by the impact assessment, and that the decision to exercise was necessarily linked with the measures that the Government wished to be able to rejoin.
We were struck by clear and preponderant evidence from witnesses from the legal, law enforcement and prosecutorial professions as to the potentially negative impact of exercising the opt-out. Now, somewhat belatedly in the whole process, we have the provisional list of measures but not the other elements required for final decisions. We are being asked to express a view about opting out without a proper assessment or analysis of whether the benefits of opting out outweigh the possible risks and uncertainties of an application to rejoin. In short, is the game worth the candle? I ask the Government in due course to report to Parliament on the progress of the negotiations so that judgment may be made.
In the mean time, while I remain profoundly unhappy about many aspects of the whole process, I will not oppose this Motion, which goes some way towards addressing the concerns of those who believe that the idea of exercising the opt-out to be misconceived. However, and this is crucial, were we to defeat this Motion, we would lose the opportunity, which was lost in the other place, of placing on record and binding in our belief that the 35 listed measures are in the national interest; and we will have lost the opportunity to endorse the Government’s welcome intention to apply to rejoin the same. We can return to the other 130 later, and no doubt they will feature in the reports that have been requested from committees of your Lordships’ House.
7.10 pm