My Lords, I declare an interest which is in the register. Because of the advisory time limit I intend to speak as fast as Benedict Cumberbatch, who plays Sherlock Holmes on the television.
I shall speak separately about the opt-out—the Government’s decision to exclude the application to the UK of some 130 measures, which of course the UK is entitled to do under the Lisbon treaty—and the opt-in, which is a separate proposal to opt in again to the 35 measures. That requires confirmation by the European Commission, which can impose conditions in the case of the non-Schengen measures, and in some cases agreement of other member states—the so-called Schengen measures.
In order to judge the best result for Britain, the two issues should be examined together. I welcome the Government’s decision to do this in the Home Secretary’s Statement of 9 July and in the submission of these issues to Parliament in the House of Commons and now in this House. We have also had the advantage of the careful examination of these questions in the EU Committee and the very substantial 155-page Command Paper 8671. I did not find it easy bedtime reading but it is a very thorough statement of the Government’s position which we are now invited to endorse—a vital and important change, which I welcome. I have noted that as a result of discussion in the House of Commons the timing is now not quite as speedy as was originally thought.
Although I will first speak about the opt-outs, it is the choice of the 35 opt-in measures and the conditions that we might wish to apply which are the more interesting. However, I will begin with the opt-out. It is important to stress that we are in the five-year transitional period under the Lisbon treaty—Article 10.1 of Protocol 36—and infraction powers under Article 258
of the treaty do not currently apply. However, if we do not opt out, of course all these measures will become subject to the European Court of Justice and the enforcement powers of the Commission on 1 December 2014. Quite simply, if we do not want that, we must opt out. If we are satisfied with it, we do not need to opt out. That is the basic situation before us.
An examination of these measures, set out in Command Paper 8671, shows that in the Government’s view, a good number of measures have little or no impact in the UK. Your Lordships will frequently find statements such as:
“The Government considers the economic impacts of non-participation in this measure to be negligible”,
or that a measure,
“does not appear to be in force, nor is it likely that it will come into force”.
There are many examples of this. We can draw two conclusions. First, these measures do not matter very much to the UK, which is the Government’s view. Secondly, as a general principle—which for me is important—it is always wise to question the need for legislation, whether from national or EU sources, unless it can be shown to be essential.
A mountain of secondary legislation passes through this House—there were 11,414 pages in 2009. This legislation is dominantly of national origin and the proportion that is Brussels-derived and under the European Communities Act is quite small. However, in the area of justice and home affairs there are a lot of regulations and legislative measures and the Government have decided that they want to go for the full opt-out. We might say that whatever the arguments advanced so far—and I respect them—this may make a small contribution to reducing exaggerated claims of the role of EU legislation in Britain.
I turn to the opt-in proposal, which is intended to safeguard and reinforce our national interest against organised crime and trafficking and to favour the most efficient administration of justice across frontiers. As I have already indicated, there are two types of these measures, the Schengen and the non-Schengen, and the procedures are quite different for bringing this to a conclusion as recommended by the Government.
There are some quite important measures among the 35, but they are mainly non-Schengen measures in the form of Council acts or decisions. Examples are the Council act on mutual assistance and co-operation through customs administrations—the so-called Naples II, which I believe is the basis which we use now. Then there are the Council decisions strengthening Eurojust in the fight against serious crime; the Council decision establishing Europol, whose excellent work was specifically pointed out by the Home Secretary in her Statement; and, of course, there is the decision on the European arrest warrant, which was dealt with extensively in the Home Secretary’s Statement together with the specific proposals she put forward for amendment of UK law to respond to some problems in practice.
I will say a few words—speaking as fast as I can but not as fast as Benedict Cumberbatch—about Europol and the European arrest warrant. Europol is just the sort of organisation that we need if we are to keep
pace with—or preferably outpace—trans-border crime. It is common sense that we should stick with it in the interests of our law-abiding citizens, and that we should obtain the two assurances mentioned by the Home Secretary on data sharing and security and on there being no power for Europol to initiate investigations. I hope that we can deliver the Europol opt-in simply and quickly, by whatever method we go at it, because I am in favour of it.
The European arrest warrant is highly valued but it is much more controversial. It makes sense to operate on an EU-wide basis in order to avoid the complexity of negotiating extradition agreements with many different countries. The Home Secretary has indicated the changes that she wants to make in national law. I will not go over them again. They are in her Statement. They are all very sensible and we should endeavour to stick with them as the decisions on opt-ins go forward.
To conclude, the Government have made their choice, but the end of the operation will be when the Commission confirms the opt-ins, or in some cases when the member states agree them. It will be a good thing to have another report from the EU Committee. The changes that we have just discussed—the introduction of the word “endorse” and the other actions by the Government—indicate that we have a basis for responding to the motivation behind the amendment that the noble Lord, Lord Hannay, will not now press.
7.32 pm