My Lords, I note that the Minister, the noble Lord, Lord Bates, has been in his place since 3 pm this afternoon and that he came to this debate straight from the Second Reading of the Modern Slavery Bill. In the circumstances, he might wonder whether the definition of slavery is quite comprehensive enough.
This House has debated the Protocol 36 imbroglio many times and I do not want to revisit all the arguments made in these debates, but I want to emphasise a few points, and I want to comment on the Motions before us and to ask the Minister a couple of questions.
The Government are proposing to opt back in to the 35 measures set out in Command Paper 8897. As I said in our last debate on the subject, I very much support rejoining these measures, especially the improved European arrest warrant. The Government have chosen these rejoin measures very well, although of course they should not have had to choose at all. None of the measures that the Government are choosing not to rejoin is at all harmful to the United Kingdom’s interests. By deciding to abandon some measures and keep others, the Government have wasted their own and parliamentary time. They have unnecessarily spent political capital negotiating all this with the Council and the Commission. By trying to keep the number of rejoins low, they have rejected, at the very least, four perfectly good and valuable measures. The fact is that, very regrettably, the Government have been at best extremely clumsy in the way they have treated Parliament throughout the entire Protocol 36 debate. Others today and in previous debates have listed the delays, the absence of Explanatory Memoranda and the unsatisfactorily worded Motions.
The letter of last Wednesday from the noble Lord, Lord Boswell, notes the Government’s failure to adhere to the commitments they have made to Parliament on this matter. As he says, the Government have persisted to the very end in presenting this House with a deeply unsatisfactory and illogical Motion. The government Motion asks the House to approve the draft regulations transposing 11 measures into UK law. Ten of these are among the 35 measures that the Government are seeking to opt back in to. The Commission has advised that they need to be transposed now if we are going to be able to opt back in to them.
But what of the other 25 measures? The government Motion says that by agreeing to the transposition of 11 measures we endorse the formal application to rejoin all 35. Why do it this way? Why make endorsement of the 35 simply consequential on agreeing to transposition of 11 measures, one of which is not even a Protocol 36 measure? If it was an attempt to avoid discussion of the European arrest warrant then it has clearly failed to do that, as has again been demonstrated tonight.
I entirely agree with the conclusions of the noble Lord, Lord Boswell, on this matter. It is a profoundly unsatisfactory approach to parliamentary scrutiny and oversight. The approach also raises some questions. The Government are seeking to rejoin 35 measures, 29 of which are non-Schengen. This means that the Commission is obliged to approve our application if the package is coherent and practicable. It seems clear that, provided we transpose 10 measures into UK law,
that will be the case. However, that leaves six non-Schengen measures. Here, it is the Council who must decide to allow rejoin or not.
There are some confusing and worrying signals. The Minister has already mentioned Spain. The Times reported last Friday that Spain had forced a concession from the Government on the Prüm decisions. The article said that the Home Secretary, to secure Spain’s agreement to the rejoins, agreed to run a small-scale Prüm pilot. The article went on to list expressions of outrage at this agreement from Tory Eurosceptic MPs. I was surprised by this—not by the expressions of outrage so much but because I had thought, as I said in a debate on Protocol 36 on 17 July, that the Government had already committed to running a small-scale Prüm pilot anyway. I had thought that this was on the Government’s own unforced initiative. Perhaps the Minister can tell the House whether Spain, as the Times reported, had in fact demanded this concession.
Perhaps the Minister can also tell the House whether Spain, as it is rumoured, has used Gibraltar as a reason for raising objections to the opt back in. Is it just Spain? Can the Minister say if other member states have forced concessions from us in our negotiations to rejoin the six non-Schengen measures? It is worth bearing in mind that no concessions of any kind would have been necessary had we not decided to exercise, quite unnecessarily, the block opt-out. I very much hope that the Motion tonight will be the end of this sorry saga, at least in your Lordships’ House. I hope that it will allow the Government to spend their time on more productive and substantive conversations with our partners in the European Union.