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Mr. Cash: I wonder whether the hon. Gentleman is being a little over-enthusiastic. Does he not recall that during cross-examination by the European Scrutiny
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Committee, the Minister for Europe suggested that the whole of the JHA measures had an emergency brake? Does he not accept that the reform treaty makes no provision whatsoever for an emergency brake in respect of the other matters dealt with under paragraph 4?

Chris Huhne: I believe that the emergency brake will apply across the board. That certainly appears to be the legal opinion according to what I have seen, although I do not know what the Minister said in Committee. On the sensitive matters that we are discussing, there is no doubt that the emergency brake applies, that the European Council position is as I have described and that for the first time in any EU text it is made clear that the European Council will proceed by unanimity.

Another important difference is that the provisions in the Lisbon treaty that allow legislation to be adopted on passports, identity cards and residence permits have moved from the citizenship part of the treaty to the immigration part. That means that the UK can opt out, as can Denmark and Ireland. That is an important part of the case that the Liberal Democrats have sought to argue—the Lisbon treaty is fundamentally different from the constitutional treaty in terms of the safeguards that are provided.

David T.C. Davies (Monmouth) (Con): Does the hon. Gentleman not accept that although the provisions have been moved at the moment, there is a danger that they might be moved back again? Is that not something that we have seen the EU do before? For example, Britain was given an opt-out on the social chapter one minute, only for the EU suddenly to decide to implement limits on working hours under health and safety regulations the next.

Chris Huhne: I can see that the paranoia that has infected the Conservative Front Benchers is creeping backwards. I do not recognise that as the real world. When I listen to the descriptions of the workings of the EU that come from those on the Conservative Benches, they bear no resemblance whatsoever to the institutions with which I was involved for six years as an MEP. I urge Conservative Members to use the allowances so generously supplied by this House to get on a Eurostar, visit Brussels and find out what the case is for themselves.

Mr. Gummer: Will the hon. Gentleman remind the House that the Government knew perfectly well that the scope of health and safety in the EU covered those measures that were then implemented? That was part of the original treaty and there was no question that the EU in any sense misled Britain or those who had negotiated the deal.

Chris Huhne: I am grateful to the right hon. Gentleman for that extremely helpful intervention. His recollection is the same as mine.

I have a question for the Minister. In availing ourselves of those opt-ins and opt-outs, as I hope that we will, what parliamentary scrutiny will that involve in this House? On a formal level, will the Government be able to opt in or opt out merely through statutory instruments? That would probably not be an appropriate matter for secondary legislation. Should there not be a commitment at least to a proper debate on the Floor of the House or even to use primary legislation to make the change?

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I hope that the new Government Front-Bench team will dust off some of the proposals made by the Modernisation Committee—and some of the evidence that it was given—about how we can improve the way in which our Ministers are scrutinised when they go to the Council of Ministers, as the Danish Folketing or the Finnish Eduskunta have done. That would give enormous reassurance to the people of this country that we will not have to put up with secret decisions such as those that the hon. Member for Beaconsfield has attempted to portray as a great threat to our national life.

Mr. David Heath (Somerton and Frome) (LD): My hon. Friend is raising an important point about the parliamentary scrutiny of any opt-in arrangements. If such scrutiny were not effective, we would be building the use of royal prerogative on top of a previous use of the royal prerogative. As the Government are committed to reviewing use of the royal prerogative in any case, and to providing proper parliamentary scrutiny, it would be perverse if any potential opt-in was not properly scrutinised in this place.

Chris Huhne: I am very grateful to my hon. Friend for that intervention. I simply reiterate that many of the unfounded fears about the EU would be put right if this House did a much more effective job of scrutinising our Ministers when they represent us in the Council of Ministers. Ideally, we would do that beforehand, as happens with the Danish Folketing.

The Conservatives have pressed for a referendum on the Lisbon treaty, but the problem with that is that the treaty allows us to incorporate its provisions or not, as we see fit. I can imagine that that was not an easy concession for Ministers to obtain. It is frankly breathtaking for the Conservatives to say that this country will accept that concession while retaining the right to reject the whole treaty that our partners wished to implement without opt-ins or opt-outs. In my experience, no business negotiation could conceivably succeed on that basis, and no business would want to bother negotiating with anyone who set out such a position. There has to be give and take.

All in all, we on these Benches hope that the new Lisbon treaty will prove to be a useful way to tackle the increasing globalisation of crime and to extend the rights of our citizens, wherever they choose to live in the EU. We hope too that it will extend the rights of the millions of people who visit other member states in the course of their holidays. However, there can be no doubt that the provisions in the Lisbon treaty are substantially different from those in the constitutional treaty, and that they allow the UK a far greater ability to pick and mix than we enjoyed before. That is the main reason why we believe that it would be a mistake to unpick the arrangements, and why we urge that the House support the Government motion.

5.51 pm

Michael Connarty (Linlithgow and East Falkirk) (Lab): It is a joy indeed to follow the hon. Member for Eastleigh (Chris Huhne). He claims to have DNA that is somewhat similar to what we on the Labour Benches have, although I think that it is slightly weaker. However, we accept what he says, as he will be joining us in the Lobby on the Bill.

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I am also pleased to follow the hon. Member for Eastleigh because he echoed the questions that I have been raising with the Government for some months. Those questions have to do with the procedures that will allow this Parliament to be involved in the opt-in processes, whereby matters to which we have signed up already and which come under the jurisdiction of our courts will be transposed to the jurisdiction of the European Court of Justice. I am also concerned about the procedures that will allow the House to be involved in dealing with matters to do with the proposed orange and yellow cards, and with the implementation of the passerelle clauses. The passerelle clauses relate to various matters, including those connected with foreign policy.

I am glad that the Liberal Democrats have focused on the procedures involved, and I hope that the main Opposition party is thinking about them too. I am Chairman of the European Scrutiny Committee, and my Committee has agreed, along with the Public Administration Committee, to consider seeking a resolution from the Government that would deal with the matters that I have set out. That resolution would be additional to this Bill, and I hope that it would formalise and make concrete and substantial Parliament’s involvement in each of the procedures. In that fashion, the way that matters are handled would not be left to the Government alone.

The people who read our debates are sometimes more aware of our prejudices than the substance of our discussions. It is important, therefore, that we keep it in mind that the motion makes it clear that we are talking about

as well as matters relating to “fighting cross-border crime”. People will want to know what we want to do in those areas, and whether the reform treaty will help us to perform better. They will not be so interested in our general prejudices about how someone might have moved away from the positions that he or she took in the European Convention, or about how opt-out agreements were reached—for example, whether they came with or without red lines, and what the substance of those red lines was. My Committee has reported on all those matters and we stick by the positions that we took, but people outside will want to know what the House thinks about them.

Two matters underpin—although they might undermine—the House’s approach to the subjects being debated. First, there is no clear procedure that allows Parliament to get involved in or to control the opt-in process. The possibility remains that the process could be handled in secret by the Council of Ministers, although I hope that that does not happen.

My Committee has examined the conclusions from past Council meetings, to determine how they were written and where decisions came from. In a report that we are issuing this week, the Committee says that the Council is both secretive and eccentric. It is important that the process involved is neither of those things: it must be characterised by openness and clarity, and all decisions taken must be accountable to this House.

The second thing that underpins—or undermines—our approach to these matters is that we would not retain the status quo if, for some reason, we decided not to opt
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in on any given matter. My Committee was concerned about that, and some might say that it is ridiculous: surely, if we do not want to go along with the new Community method established in the reform treaty, we should be able to opt out of it. In contrast, Denmark was not asked to opt out because it has a protocol that means that it can keep its existing arrangement if it does not want to opt into the new arrangements—that is, with the Commission in charge and the ECJ providing the final judgments—established by the reform treaty process. As a result of the protocol, the Danish Government and courts will retain their powers of judgment and control. It is clear, therefore, that the Danish protocol allows that country to underpin—and probably undermine—a lot of our concerns about how the reform treaty will pan out.

Mr. Grieve: I read the report from the European Scrutiny Committee, and much of it made tremendous sense. Has the hon. Gentleman received any enlightenment from the Government as to why they did not seek an opt-out arrangement similar to that enjoyed by the Danish Government? Such an opt-out would go a long way towards resolving some of the anxieties that I expressed in my speech.

Michael Connarty: I believe that the explanation was that we secured a better deal than Denmark did. That was the Government’s assessment and they have stuck by it in their arguments, although I suggest that Denmark was probably allowed to retain its opt-out because it is a small country that does not make a significant dent in the general conduct of Community affairs. In contrast, the UK is a large country and a big player in the EU. If we had secured a similar opt-out, other countries might have followed us and demanded opt-outs of their own—something that happened when Poland followed our lead on the charter of fundamental rights. Even so, I believe that the reform treaty deserves our support, as long as the proper procedures are put in place so that Parliament can discuss each transfer of power and opt-in.

I was slightly late for this evening’s debate because I was hosting the launch of the Law Society’s guide to the treaty of Lisbon. The guide is not prejudiced in any way, but offers a clear elucidation of what the treaty contains. It gives good advice to the legal profession about how the treaty will help those who practise in the criminal, civil and commercial law. It will simplify the legal code, and allow legal professionals to do their business in Europe on behalf of this country’s people and companies much more effectively. I was pleased to be asked to host the launch event this evening.

I also attended the launch of an organisation called BlueBlindFold, which was set up by the hon. Member for Totnes (Mr. Steen), who chairs the all-party group on human trafficking. The organisation makes it clear that trafficking is happening in this country. Whether we like it or not, it is a problem in every constituency, and the people of this country want to know whether the treaty will strengthen our working relationship with the rest of Europe so that we can deal with it. I believe that it does.

I was pleased to be at both the events that I have described, although they meant that I missed the speech by the Home Secretary. However, I have some of her briefing notes and, despite my earlier absence, I shall respond to them now.

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In its third report of 2007-08, the European Scrutiny Committee made clear its concern that the move to QMV and the jurisdiction of the Commission and the ECJ would lead to the loss of control over criminal justice unless the right to opt in was maintained. We also stated that the UK should retain its right to opt out, as I have said. The Home Office briefing stated:

It is for precisely that reason that there must be some sort of debate on the Floor of the House every time the Government decide to take part in that co-operation. They will have to convince the House that such co-operation is in our national interest, and it is possible that they will be able to do so. However, I do not want the Government to be able to avoid that responsibility: I do not want them to operate off the radar, as that would give people the idea that they have something to lose and that they are not willing to tell us all about what is going on.

The Home Office briefing also states:

Again and again, the European Scrutiny Committee has made it clear that we would not approve of that for the UK. So far Ministers have been on our side, and we have an opt-in over that possibility. We can prevent the European public prosecutor from having a role in the UK, but we do not yet know what the consequences will be of opting out from that arrangement. What other relationships with the European public prosecutor’s office will we have to give up? We may find that we lose out on things because of the opt-in, or the opt-out.

Mr. Cash: I would like to home in on the question of the European public prosecutor as an example. As a member of the European Scrutiny Committee, I certainly want debate on such matters, but what troubles me is the substance of the changes relating to dual criminality, the burden of proof, the judicial process and political interference in the judicial process. It is those substantial questions that trouble me—not exclusively the arcane arguments about opting in or out.

Michael Connarty: Perhaps I have been told that I use arcane arguments. I do not remember being accused of that; I am usually told that I am blunt and in your face.

Rob Marris: Yeah, that’s right.

Michael Connarty: Thank you. Where I come from, that is called a compliment, on the basis that we in the industrial heartlands of Lanarkshire are not shrinking violets.

However, the substance of the treaty is the matter of the debate, not questions of opting in or out. What does a proposal mean, what does it bring with it and do we want it? Does it give us an advantage and lead to better co-operation? As my right hon. Friend the Member for Leicester, East (Keith Vaz), the chairman of the Home Affairs Committee, asked, does it give us the power to
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catch more criminals and to defend our people better? On balance, I would say that a lot of things in the treaty do so.

I have some examples from the Law Society guide. It states:

Those changes are welcomed. That is the view of that profession in its defence of people, companies and organisations in the UK. The guide says:

That is something to be welcomed; the society is correct in that assessment. On criminal law, it points out:

With regard to judicial co-operation, there is an intention to remove the veto, but

That may remove the deadlock that existed in this area.

All those aspects must be applauded with regard to co-operation and the results that they will bring. On police co-operation, the guide states that the treaty

The Law Society does not see that as a negative matter. On civil justice and family law, it states that there is a

In family law,

which I think people will welcome. The Law Society has taken an objective, professional view of the matter, not a politician’s view, as it pointed out to me, and it has welcomed the changes.

We must consider other areas that should be welcomed. For example, we recently saw a report from the Commission to the Council on the application of the directive laying down minimum standards for the reception of asylum seekers. I have to say that the UK did not come out well, although it was robustly defended by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier), who has just joined us. The report criticised us, and as someone who has had to deal with families who are justifiably seeking asylum, who had been treated less than humanely by this Government, particularly when they were locked up in Dungavel, I welcome such co-operation, which ensures standards for those of all nations. The report says:

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