My Lords, I am very grateful for the opportunity to take part in this debate as the person who, since May of last year, has chaired Sub-Committee E, which is one of the two sub-committees together with that of the noble Lord, Lord Hannay, who has already spoken and whose expertise in these matters is probably unrivalled in this House. I want at the outset to pay tribute to the noble Lord, Lord Bowness, my predecessor as the chair of Sub-Committee E. He chaired that committee with great distinction and he took it in turns—as I have since May—with the noble Lord, Lord Hannay, to chair the meetings and conduct the inquiries. I associate myself and the members of my committee with the entire content of the speech of the noble Lord, Lord Hannay, particularly on the way in which this House has been treated by the Government. I also echo the comments of the noble Lord, Lord Jopling, who has had a distinguished career in both Houses of Parliament.
The two reports we are debating today represent a considerable amount of work by the two sub-committees, and by the Select Committee, on behalf of the whole House. I know that the noble Lord, Lord Boswell, who chairs the European Union Committee, is disappointed that because of another engagement he is unable to be in his place today. It was therefore something pleasing to note from the Government’s response to our second report, the Follow-up Report on EU Police and Criminal Justice Measures, that the Government considered that the reports represented what they describe as,
“an extremely thorough analysis of a complex issue”.
It was thorough and it is complex.
I will not go on about or rehearse the procedural failings of the Government in their dealings with Parliament on the opt-out. Both our reports comment on all that and it has been rehearsed before. Things went wrong—it may be said that they went downhill—
from the Prime Minister’s speech in Rio, which appeared to pre-empt the decision on whether to exercise the opt-out even before our first inquiry began, and have taken a long time to get back on track. I hope that, in his reply, the Minister will tell us that lessons have been learnt.
There are more steps to come in the procedure under the opt-out protocol for the United Kingdom to rejoin measures, and we expect the Government to keep Parliament properly informed and in a timely fashion as the process plays out. In particular, we will need a comprehensive impact assessment to assess the outcome of the Government’s negotiations on rejoining measures. An assessment of the measures covered by the opt-out was promised as long ago as November 2012, which is 14 months ago, and the Explanatory Memoranda published last July do not fulfil that requirement. I emphasise that the impact assessment should not cover just the 35 measures which the Government wish to rejoin, as we can all make a judgment as to the efficacy or rightness of those decisions; they should certainly cover the other 95.
It seems to me, and to my sub-committee, that it is crass to fail to explore the impact of not seeking to rejoin measures such as those on driving disqualifications, probation or racism and xenophobia. It is all very well to say that we have comprehensive legislation in that final instance, on racism and xenophobia. That may be true—I think it is—but it sends out a rather bad signal when that decision was taken at the same time as vans were going round certain London boroughs telling illegal immigrants to go home.
In our first report, we considered whether the opt-out should be exercised. We said that we found the Government’s case for exercising the opt-out was unconvincing. I, and we, remain unconvinced. The Government’s decision to exercise the opt-out was much influenced by their view on extending the jurisdiction of the Court of Justice of the European Union to the 130 measures to which the opt-out applies. We think that the Government’s fears are misplaced. It is highly unlikely that the 130 measures were drafted without thought as to this jurisdiction, as the Government say, given 11 member states had agreed that their courts could make preliminary references to the Court of Justice for the interpretation of European Union police and criminal justice measures from 1999.
Of course, there will be cases from time to time where the Government will disagree with the judgments of any court of any jurisdiction. However, we do well to remember that courts act as guardians for us all and the Court of Justice ensures the common interpretation of European Union law throughout the Union and prevents backsliding from their obligations by member states. The United Kingdom has nothing to fear from an extension of the court’s jurisdiction to these police and criminal justice measures. It would otherwise hardly seek to rejoin even 35 of them.
Unfortunately, although the Government are saying that the reports were helpful in informing their decision on the issues, I echo a remark of my colleague on the justice sub-committee, my noble friend Lord Rowlands, that it appeared to be something of “a dialogue of the deaf”. However, the issue of whether to opt in is now
water under the bridge, following the Government’s notification of their decision to opt out in July of last year. We now have to focus on the implications of having opted out of the 130 measures concerned.
We considered the Government’s list of 35 measures that they wish to rejoin. They are set out in Appendix 4 to our second report. These measures contain the most significance in the interests of the UK and other member states. I am pleased that the Government will seek to rejoin them, in particular the legislation on the European arrest warrant and on Eurojust, both of which are particularly interesting and important given evidence to our committees in the recent past about the growing Europeanisation of crime. However, that does not mean that the others have no significance—only that the 35 are the irreducible minimum. They may yet turn out not to be the practical minimum. The Government must convince the Commission, in particular, that the set of measures that we rejoin is one that, as Protocol 36 requires, does not seriously affect the practical operability of the measures and respects their coherence.
This issue of coherence matters. Our second report considers this issue and suggests that some other measures may have to be added to the list of 35. I ask the Minister to tell us what the Commission have said on the coherence of the 35. Do the Government envisage adding to the list for reasons of coherence? It is vital that the decision on which measures to rejoin takes account of the national interest, including the national interest in rejoining a coherent set of operable measures. As our second report says, we hope and expect the Government to respond flexibly to adjustments that the Commission may propose to the list of measures that they wish to rejoin. There should be no place for a numbers game on this important issue.
The national interest is not confined to considerations of practical effectiveness, as the Government seem to believe. Of course legislation is about substance, but our approach to European Union legislation also makes signals of our intent. Opting out risks signalling to our European partners a lack of engagement on the part of the United Kingdom in the application of standards, the operation of investigations and prosecutions and the safeguarding of citizens’ rights in the field of policing and criminal justice—as important for our citizens when they visit the other countries of the European Union as it is for their citizens when they visit the United Kingdom. No matter how good our own standards are in, for example, combating racism, failing to rejoin that measure signals a detachment.
Risks remain. Even if the Government are successful in obtaining agreement to our rejoining measures, there may be gaps in application of the measures that we rejoin. The Government and the Commission will no doubt work hard to avoid gaps but may not be able to do so in every case. Transitional measures may be necessary.
One gap is already apparent: measures for obtaining evidence in cross-border cases will be greatly improved by the directive, to be adopted very soon, establishing a single system for obtaining evidence in cross-border cases, through a European investigation order. We should remind ourselves of some high-profile cross-border
cases that have been very much in the public mind in the past few years. Three years will be allowed for member states to implement the directive into national law, so the new system may not be fully effective throughout the European Union until 2017. However, on 1 December this year, the UK will cease to participate in the current EU convention on mutual assistance because we have opted out of it. The Government say that this will not make much difference because there are other available measures. Perhaps so; we shall see. But this example illustrates how gaps may appear despite what I acknowledge may be good intentions.
Finally, the Government—this or another—may wish to revisit the question of whether to rejoin other measures in light of future developments. There is no time limit in Protocol 36 on opting back in, as the Government have acknowledged in their response to our second report. All the more important, therefore, is the last recommendation in our second report that there should be an ex-post review of the impact of opting out, in the same spirit as we support post-legislative scrutiny. I hope that the Minister will give this a more favourable reception than that given in the formal response to the report.
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