To be published as HC 1416 - i

House of COMMONS



European Scrutiny Committee

The European Investigation Order and Parliamentary Scrutiny of Opt-In Decisions

Wednesday 6 July 2011


Evidence heard in Public Questions 1 - 61



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Oral Evidence

Taken before the European Scrutiny Committee

on Wednesday 6 July 2011

Members present:

Mr William Cash (Chair)

Mr James Clappison

Julie Elliott

Nia Griffith

Kelvin Hopkins

Chris Kelly

Stephen Phillips

Jacob Rees-Mogg

Henry Smith


Examination of Witnesses

Witnesses: Rt Hon Theresa May MP, Secretary of State for Home Affairs, Alistair Robinson, Head of the EU Team, Legal Adviser’s Branch, Home Office, and Emma Gibbons, Acting Deputy Director, Directorate of International Relations, Home Office, gave evidence.

Q1 Chair : Home Secretary, I am extremely glad that you have been able to come today to our session on these various matters. The first question that we would like to address is the question of the European Investigation Order. The Investigation Order, which I recall you agreed to opt in to within one month of the General Election last year, does mark a significant change in the mechanism for mutual legal assistance in the EU. What were previously requests now become orders. These are based on the principle of mutual recognition. Mutual recognition relies on automaticity and, in so doing, necessarily reduces the grounds for refusal to a minimum. Indeed, recital 6 of the Directive states as much. Could I start by asking the first question? Home Secretary, in what way do you say that the current rules on mutual legal assistance between the EU Member States are sufficiently unsatisfactory to warrant this proposal for a European Investigation Order?

Mrs Theresa May: Thank you, Chairman, and I am pleased to have the opportunity to appear before your Committee. Could I just say, before I answer your question, that I am joined today by Emma Gibbons, who is Head of the EU Section of the International Directorate at the Home Office, and Alistair Robinson, who is Head of the EU Section of our Legal Adviser’s Branch? They may be able to give, if necessary, some technical and detailed answers where required.

When I looked at this issue of the European Investigation Order, there was one thing driving my thinking, which was a desire to ensure that we could give the police the powers that they need to catch criminals. There were a number of concerns about the way the mutual legal assistance proposals were working. There were issues around the speed that those were being dealt with. They were governed by a number of fragmented instruments. They were not being done in a standard form.

What we found was that the police were saying to us that they felt the EIO would be of significant benefit to them. Indeed, there was a concern that, if we were not part of the EIO, what we would see was that the requests from the UK would, frankly, go to the bottom of the pile in future, in relation to the assistance that they wanted from police forces in other Member States. It was that interest-that I felt that this was an instrument that would be of benefit to our police authorities-that led me to look at the optin.

We did not do that without looking at some of the issues within the Directive: the proposed instrument, which we did. We also had some consultation with other Member States about some of the concerns we had with it, and took a judgment about our ability to be able to work with other Member States in negotiations on the instrument to ensure it fitted the needs that we had.

Q2 Stephen Phillips: Obviously, the EIO is important from the perspective of criminal investigations across the EU, but these proposals have been forthcoming from Member States rather than the Commission themselves. As a result of which, there has been no impact assessment and certainly no full impact assessment. Has the Government carried out any of its own work as to the impact assessment and, if not, do you think that that work ought to be carried out before the proposal goes forward any further?

Mrs Theresa May: You are absolutely right. I think I am right in saying that the Commission was looking at some proposals of their own, but this has obviously taken precedence over their proposals. Yes, we have done some quite detailed work within Government on impact assessment, because we thought it was necessary to do that.

Q3 Stephen Phillips: One of the things the Commission would have considered was the necessity of these proposals from the standpoint of EU law in general. Because of the absence of an impact assessment, what steps has the Government taken to satisfy itself that these measures are necessary?

Mrs Theresa May: As I say, we have been looking in detail at the implications for these Investigation Orders, both from a practical sense and from a legal sense. Alistair may wish to comment on some of the more detailed legal aspects of it, but we have done that particular piece of work; we have made a detailed assessment of the impact of the EIO, and obviously that informs what we are doing in terms of the discussions that we are having about the nature of what the final document is going to be. We are at a relatively early stage. There has been quite a lot of negotiation so far but, at a relatively early stage, there is some time to go in relation to this. You wanted an answer on some of the specific aspects.

Q4 Stephen Phillips: I am very happy for Mr Robinson to chip in. The difficulty I have is that we had a regime in place. This is a new regime. Had the Commission proposed it as it did, it was tasked by the European Council to go away and conduct an impact assessment. That has never happened. How are we to satisfy ourselves that these measures are necessary, above and beyond what is already in place?

Mrs Theresa May: I have set out a number of practical reasons why I believe these measures were necessary, over and above the measures that were in place previously. There had been some difficulties that were being experienced with the MLA arrangements that were previously in place. As I said, they were governed by a number of instruments that were in place. There were some concerns about the lack of standardisation in relation to the approaches that were being taken on these, which was in some cases causing some practical difficulties for the police. There were some issues around the speed that was being taken; the EIO should speed up this particular process, and it should give the police much greater capacity, I believe, to deal with international criminals across borders.

Q5 Stephen Phillips: Final question, if I may: given that the Council had instructed the Commission to go away and conduct its own work in this regard, do you think it is acceptable that these proposals were then forthcoming from a number of individual Member States, as opposed to waiting for the Commission to conclude it work?

Mrs Theresa May: If a number of Member States felt that this was appropriate, that this was something that needed to be done, then I do not see a problem with them coming together and putting this work in place. As I understand it, the Commission is not undertaking its work now; this has taken precedence over the work that the Commission was doing. I don’t necessarily feel that everything that is done has to be automatically generated by the European Commission.

Stephen Phillips: My point is really that the net effect of that has been that there has been no full impact assessment that is available. You have answered those points, and we will move on.

Q6 Julie Elliott: The Minister for Immigration wrote to us on 22 June telling us that a "partial general approach" had been agreed on the first 18 Articles of the proposal. We understand the term "general approach" to mean political agreement on a text so that it can’t be reopened for a substantive amendment. Could you tell us what a "partial general approach" means for parliamentary scrutiny of a document?

Mrs Theresa May: What has happened is that there has been negotiation on those first 18 Articles of the document. It is not entirely closed in negotiation in the sense that, once it gets into the European Parliament, there will be possibilities to open up any concerns that remain around those 18 Articles that have been so far agreed. Your point is whether or not you can scrutinise them, is it?

Q7 Julie Elliott: Yes, because we understand what a general approach is-it cannot be opened up again, so we can scrutinise the final thing-but a partial general approach, what does that mean to us in terms of scrutiny?

Mrs Theresa May: In terms of the ability of this Committee to scrutinise this, the Articles that have been agreed so far are 1 to 18. It is right that, within the formal mechanism of negotiation, those will not be reopened. There will be an opportunity for further discussion of those when it comes to the European Parliament, but I think that it is partial purely because it is not the whole thing, if you understand me. There are other Articles that are yet to be worked on, considered and negotiated. I don’t think it means anything more sinister than that.

Chair : We certainly don’t want anything sinister, do we, Home Secretary?

Q8 Mr James Clappison: Home Secretary, everybody agrees that serious crime needs to be investigated across borders, but one of the concerns that have been expressed about the European Investigation Order is that it can also be used for very trivial and minor offences. There have been a lot of comments about this. The Order would give European investigating authorities the right to investigate trivial offences in this country. I understand that the Government has said that it is going to work with the European Parliament to incorporate an Article in the text to restrict the application of the Investigation Order as far as trivial offences are concerned. Can you confirm that that is the case? Are the negotiations going well?

Mrs Theresa May: What we have been able to do so far is to get some provision in relation to proportionality within the text. It has to be said, I think it is fair, that there is not a great appetite for a provision on minor offences around the Council. That is why we see that actually there would be greater benefit in working with the European Parliament. I think this would be an issue for the European Parliament, one of those issues where we can work with the Parliament on trying to get something included in relation to minor offences. We have taken a first step, which is the proportionality test, which has now been put in, but there was no great support around the Council for something specifically on minor offences being included. We don’t see that the door has been entirely shut on that certainly.

Q9 Mr James Clappison: You understand the concern that has been expressed about this, because I believe it is the case that police officers from European Member States have the right to come to this country automatically now with this, to be present in terms of the investigation and to require DNA samples, fingerprints and whatever else they want.

Mrs Theresa May: They are not able themselves to conduct the investigations or take over investigations. They are of course able to be present, as you say, and to be able to ask for certain things to be undertaken, in the same way as UK police officers would now be able to do that in other Member States. I recognise the concern the Committee has in terms of how this impacts on what happens here in the UK, but there is also an aspect for the UK of the ability of our officers to go elsewhere. The proportionality provision, just to be clear, is in Article 5(a), and it requires the issuing state to be satisfied that any EIO is necessary and proportionate for the proceedings in question. That is a step forward from where we were previously.

Q10 Mr James Clappison: In this case, is the issuing state the state that is requiring the investigation or the state that is on the receiving end of it?

Mrs Theresa May: It would be the state requiring the investigation I believe, yes.

Q11 Mr James Clappison: That is a matter that is left to their judgment. When the matter comes to this country, if it is being investigated for a European Member State, we cannot take any view on the proportionality of it ourselves. Our authorities cannot decide that the steps being taken are not proportionate to the seriousness of the offence.

Mrs Theresa May: Yes, the initial judgment will be made by the issuing state, which is the state that is originating the request for that, which is why I said we have got one step forward, but we consider that there is certainly more room for us to be working on this issue on minor offences.

Q12 Mr James Clappison: Good luck to you with that. Will you bear in mind the complaints there have been about, for example, the European Arrest Warrant? We have heard complaints in this House, and I have heard them myself in evidence, under the similar provisions that operate in respect of that, of arrest warrants being issued in other European Member States and executed here. Examples include from Eastern Europe a carpenter who fitted wardrobe doors and then removed them when the client refused to pay, and Polish authorities requesting the extradition of a suspect for theft of a dessert.

Mrs Theresa May: It is certainly the case, I am aware, that under the provisions of the European Arrest Warrant, there are issues rightly raised about some of the requests that have come in relation to that. The proportion of requests that come varies from Member State to Member State. However, as I understand it, under the European Arrest Warrant, there is no such provision that equates to the provision that is in the EIO, which is why I described it as one step forward in relation to the European Investigation Order. We are certainly not complacent about this; we consider that it is right to carry on looking at the possibility of including an Article relating to minor offences, and to do that in discussion with the Parliament.

Q13 Chair : Could I ask you a question in relation to this question of minor offences and cost? Quite clearly, if you have situations where minor offences are leading to teams of people coming over-and there seems to be quite an incredible appetite, to use your expression, for people to get involved in those sorts of processes-if it is a minor offence and you have people flying all across Europe, leave aside what effect it has in respect of any other country, with respect to anybody from the UK who might be going elsewhere, clearly you would want to make certain there were no unnecessary uses of the process, which would also involve a great deal of public taxpayers’ money.

Mrs Theresa May: As you might expect me to say, Mr Cash, I am very conscious of the need to be very careful in the expenditure of taxpayers’ money, particularly in the current circumstances. However, I am also conscious of the need to give the police their operational independence. Decisions about who should be investigated and how an investigation is carried out are matters for the police to take in any particular investigation. I would expect that we would be looking very carefully at that rubric, that Article, which says that any requests should be necessary and proportionate.

Q14 Chair : I would say that, with respect to the question of operational independence, that is understood. However, the law such as it is at the moment does not inhibit the use of these visits. Therefore, I am really putting it to you that you should bear in mind trying to ensure that this issue of proportionality is dealt with in a satisfactory manner. Lastly, with respect to the first question, which I did not think you quite answered, if I may say so, about the difference between requests and Orders, there is a huge difference. I would be very grateful if you could just reflect on that, and give me a short answer to the question of what you see as the difference between the request and the Order that is now applicable, because the rules have now changed.

Mrs Theresa May: On the issue of the necessity, proportionality and the extent to which that would be operated by police forces here who are choosing whether or not they are going to make requests abroad, I would certainly expect forces to be very conscious of the need to ensure that any action that they were taking was indeed proportionate and that it was necessary for the investigation that they wish to undertake. I can assure you, when I speak to Chief Constables these days, they are very aware of the financial situation and the need to be careful about what they are doing in relation to any investigation.

I apologise if I missed a part of the first question that you asked me in relation to requests and orders. Yes, this is a change that is taking place. I fully accept these are fine judgments, which we have to make in relation to what is going to work and be sensible for the police in the UK. That is the basis on which I chose to opt in to this particular decision. It does, as you say, make a difference, in the sense that there will be less ability for requests to be refused. There will be a greater automaticity. One of the issues that police were finding with the previous arrangement was that sometimes they were being faced with refusals, which were making it difficult for them to conduct the investigations that they wished to conduct.

Q15 Chair : You will do your best to make sure that the balance is right.

Mrs Theresa May: Those who will be making the decisions about investigations and I will, I trust, be doing their best.

Q16 Jacob Rees-Mogg: We agree with the Government that the exclusion of the dual criminality safeguard from investigative measures under Article 10(1b) in relation to the list of 32 offences is mistaken. Could you explain, for the benefit perhaps of the wider audience, why there is opposition to the dual criminality principle in relation to the list of 32 offences not applying, and why the Government is so concerned that it should?

Mrs Theresa May: Yes. We have a concern about the breadth of the activity that is covered by that list of 32 offences. The conduct that is covered is really quite broad. They are quite wideranging in their description. It does cover the most serious and organised crime, but we feel that if the 32 offences remain there, if we do not see that list deleted, we could have a situation where a Member State that was seeking our assistance considered that the conduct being investigated fell within the definition of one of those offences, but we did not consider it to be criminal. We would be expected to take coercive measures. This is in relation to coercive measures, as I am sure you will know. I think that is only likely to happen in extreme and rare cases, but we do think there is a concern. Damian Green wrote to you; I do not have the date of that letter, but he did write to you about this matter. The main concern is just about the breadth of description of those offences.

Q17 Jacob Rees-Mogg: What ability do you have so far to get that list amended or removed?

Mrs Theresa May: Members of the Council are less concerned about this issue than we are, but we are hopeful and are pursuing the matter with the European Parliament. There are a number of issues where we think that the approach that will be taken by members of the European Parliament may well be different. They will have different concerns from those that have been expressed by other members of the Council, which are more in tune with the concerns that we have expressed.

Q18 Jacob Rees-Mogg: The drawback is that, at the Council, it is a QMV issue and that, unfortunately once you have opted in, you are stuck with the QMV on this list. It is the danger of early optin.

Mrs Theresa May: Indeed, it is the danger of early optin and that is part of the initial decision. The alternative of not opting in at an early stage, although you then have the option of opting in once something has been negotiated, is you have no part in the negotiation. It was one of those judgments in relation to this that I felt it was better to negotiate something that we would be able to work with. The danger of a situation where we were not part of the negotiations, where what came out in relation to this was something that the UK could not work with and we therefore chose not to opt in, was that that would seriously prejudice our crimefighting abilities in relation to crossborder crime and criminals who cross borders, because we would find that people would not be responding to our requests.

Q19 Jacob Rees-Mogg: It slightly moves on to the next question about mutual recognition. The majority of policy in this area is based on mutual recognition, which implies that EU Member States have sufficient confidence in each others’ legal systems to be able to act on request without further question. We know from cases brought before the European Court of Human Rights in Strasbourg and from criticisms of the European Arrest Warrant, which Mr Clappison referred to, that the standard of defence rights in EU Member States varies greatly. Indeed, in some they are not properly observed. In your view, what bearing does this inconsistency have on the viability of mutual recognition for future cooperation between EU Member States in the justice and home affairs area?

Mrs Theresa May: It is certainly true to say that, in this whole area in relation to dual criminality, the fact that several mutual recognition instruments have removed the need for dual criminality to cooperate is one of the factors in relation to the other Member States’ approach to the whole question of the 32 offences. We therefore see that they feel that we are trying to take a backward step in this, if you like. You asked me about inconsistency, and obviously I am conscious that, in my early explanation as to one of the reasons for wanting to opt in to this, I mentioned the issue of inconsistency in approach in treatment of requests for legal assistance, which has been the experience of the police here and what we have seen in the past. We do continue to have a concern about inconsistency, but part of the purpose of being able to be part of this negotiation, to be there and to be discussing with others about how this will operate, is about that process of moving people forward in relation to this. We would not be able to get any improvement in any inconsistency simply by saying to people, "We do not think you are applying this as appropriately as you should be."

Q20 Jacob Rees-Mogg: My worry would be that, by mutual recognition, we undermine some of the fundamental rights that British subjects expect to have in the area of justice-the right to trial by jury, the right not to selfincriminate and the presumption of innocence-and that foreign countries simply do not necessarily follow the same practices as we do, and whether it is right to put this at risk when you cannot be certain what the outcomes would be.

Mrs Theresa May: I am being reminded that there is some parallel work that the Ministry of Justice is leading on, in the JHA Council, in relation to standards of defence, which is trying to improve this across Member States. There is a recognition that something needs to be done and some work is being done, but it is being done in parallel to or separately from this particular activity.

Chair : We now move on, Home Secretary, to the Schengen area of questions. I would invite Kelvin Hopkins to ask the first question, if you could just give us the introduction as well.

Q21 Kelvin Hopkins : Thank you, Chair. Home Secretary, we have read recent reports of national interests threatening the unity of the Schengen area. We have in mind in particular the decision of Denmark to reinstate customs checks with Sweden and Germany, and of the spat between Italy and France over Tunisian migrants. I think it was reported yesterday as well that Holland is now seeking to take action against unemployed East Europeans in their country, even from other EU citizens, which is another step. At its last meeting on 2324 June, the European Council invited the Commission to propose a new mechanism, which would include a safeguard clause to be used as a last resort to enable Schengen members to reintroduce border controls in certain circumstances. The question would be, Home Secretary, we would be interested to know your view of these developments. Is Schengen under temporary strain or are we seeing a more permanent shifting of the sands with regard to the principle of free movement of people?

Mrs Theresa May: In relation to discussions that take place on Schengen, we sit to one side and watch those Member States that are members of Schengen in their discussions. There is a tension that has grown up among the Member States who are involved in Schengen. It has grown up for a number of reasons. That is what has led to the actions that you have rightly identified a number of Member States have already taken. It was interesting that there was an agreement at the Council that there did need to be this emergency mechanism that could be triggered in certain circumstances. I understand the Commission is now looking at bringing forward a package that would set out exactly what those circumstances would be for those Schengen countries and what could respond to that.

On the wider issue of free movement, there is also a growing concern, and one that we in fact in the UK have raised-and I raised it myself at the last JHA Council-about the need for us to look at those circumstances where there is abuse of the free movement principle. The most obvious example perhaps is sham marriages, so people who will use the ability of a resident within the EU to move freely about and see that as the opportunity to enter into a sham marriage; that is their ticket to come in. That is something that we are very concerned about. It is also something that a number of other Member States are very concerned about. We are certainly now ourselves both initiating and encouraging a greater consideration within the JHA Council about the issues around free movement and the abuses that we are already seeing and potential abuse of free movement. There is a discussion opening up there.

Q22 Kelvin Hopkins : Just as a supplementary to that, we have not joined Schengen for very good reasons, I think. Their main concern was immigration from outside the EU, but they were very relaxed about having largescale immigration from Eastern Europe within the EU and we have had a substantial number of people come from Eastern Europe to work here. There has been comment in recent days about unemployment among British people and employers preferring East Europeans. These tensions are things that are likely to grow possibly. Would you not agree?

Mrs Theresa May: What I think is important is that, as a Government, we are doing something to deal with the situation of uncontrolled immigration in those areas where we are able to. That includes of course a commitment from this Coalition Government to ensure that transition measures are put in place for any new Members that are coming into the EU-something that was not done in the initial stages of accession of new Members under the last Government. We have taken a conscious decision that that should be our position in relation to that, and obviously we are dealing with nonEU immigration in a number of ways as well. We are very conscious of the need to bring some control into our immigration system and are doing that in a number of ways and through a number of measures we are introducing.

Q23 Chair : Home Secretary, I am sure you are conscious of the fact, I dare say that they have told you, that Frontex, which we visited the other day when we were in Poland, is concerned about the actual operations of Frontex with their very limited resources, the scale of the problem, the real difficulties of Lampedusa, airports, the Greek/Turkish border and all that sort of thing. It was also made clear to us that this question of free movement of people was a real problem with respect to their operations. Do you have any thoughts on that? Do you see any relationship between that and what is going on in the Schengen context? You have the external border and the internal border, but the real problem surely is that there are just too many people seeking to get in.

Mrs Theresa May: In relation to Frontex, because the UK is not part of Schengen, we are not a full member of the Frontex arrangement, but we do work with Frontex and support them in certain operations.

Chair : One member of the staff is actually British anyway.

Mrs Theresa May: We have been very clear that we have consistently offered support to Frontex in terms of capacity building. We believe that it is very important that we ensure that the absolute external borders are being properly dealt with, that there is capacity to deal with those who are coming across those external borders. You mentioned the Greek/Turkish border. I was answering questions on this yesterday from the Home Affairs Select Committee, who had been to see what is happening at the Greek/Turkish border. There is an EU Greek action plan that is aiming to build capacity on the Greek side of the border to be able to deal with the number of people and asylum seekers who are coming across. We have been very supportive of that and making sure that that gets implemented, and have offered resources.

We are operating on the basis of what I would call "upstream activity". The more we can do to build capacity to deal with borders that are not our immediate borders, the easier it becomes. It is not just upstream in terms of external EU borders, but we look at work that can be done with other countries that are potentially experiencing the source of significant movements. You mentioned Lampedusa, but we have been looking within the EU at work that can be done with Tunisia, for example, in helping them to build their capacity to deal with people crossing their borders, because I think that is a more effective way of dealing with the problem than simply saying we deal with it when it reaches into the EU. We are very conscious that there are issues here, and we do all we can to provide expertise and support in that capacity building.

Q24 Nia Griffith: In light, Home Secretary, of the comments that you have just made, you will obviously be very aware that the European Council has also called for changes to the existing Schengen evaluation mechanism. Last November, the Commission published a draft Regulation proposing possible ways in which we could see improvements in the strengthening of that mechanism, but indicating that the UK would actually be excluded from participating in it. We would very much welcome your views on what you see as the potential ways that they could improve the mechanism and what role, if any, you would see for the UK in it.

Mrs Theresa May: We have been very clear to the EU that we consider that we should be involved in this, that we should be part of this, notwithstanding that we are not full members of Schengen. We have been in touch with the Committee previously in relation to the position that the Commission has taken on the evaluation mechanism. We are still arguing our cause in relation to the UK’s position, because there are aspects that look at not just internal border controls but other issues around policing, judicial cooperation and so forth, where we want to be able to ensure we have some form of say. I am not quite sure where we are going to arrive at in relation to our discussion on our involvement on this, but we are still pushing that case.

Q25 Nia Griffith: You have not had any feedback, as yet, or any particularly positive signs.

Mrs Theresa May: Emma may have a more uptodate position on this. The last discussion I had was a much broader discussion and did not come to a final conclusion.

Emma Gibbons: There have been some discussions about the choice of legal base, because it was the choice of legal base that saw the UK excluded. There has been quite considerable support from other Member States for that change to happen. Unfortunately, it has been overtaken by events, some of which the Chairman has alluded to. We are expecting a new proposal, potentially, to emerge as part of the package out of the European Council, so we will have to see where it goes. Certainly, the negotiations to date have seen considerable support for our position that we should be within the evaluation mechanism, not least because we are part of the police and judicial elements of this work.

Q26 Chair : Home Secretary, we now move on to the Common European Asylum System. Of course the Commission has recently published these revised proposals and on the reception conditions for asylum seekers. The European Council, at its last meeting, described these last month as "important building blocks for the Common European Asylum System". You last July, when you were introducing the European Investigation Order optin, said as follows: "In justice and home affairs, there are many ideas coming out of Brussels, such as the common asylum policy, that would involve an unacceptable loss of sovereignty." You went on to say: "I want to make it absolutely clear to the House that I will not sign up to those proposals and I have made that clear to my European counterparts." In this context, therefore, can you confirm that the Government does not intend to opt in to either of the revised proposals that have been put forward by the Commission on asylum procedures and on the reception conditions?

Mrs Theresa May: What I can confirm, Chairman, is that we retain the position that I outlined last year, as you have quoted, which is that we do not believe it is right for the UK to be part of the Common European Asylum System. That is a position that we consistently take at every meeting. We have been very clear with other Member States and the Commission that we believe there is some benefit in some practical cooperation around the asylum system, but not in further legislation that creates this Common European Asylum System. We have very real concerns about the proposed revised Directives on the two matters that you have raised, which the Commission has brought forward. We will be writing to you and contacting you in due course on the Government’s position on those, but rather than me saying that today, we have made clear in our explanatory memorandum to you that we do have significant concerns about these proposals. There are some very practical concerns there about how these revised proposals would operate, particularly in relation to aspects of the judicial system here in the UK. We will be notifying you of the formal Government position in due course.

Q27 Chair : You did really notify us of the formal Government position when you said, "I want to make it absolutely clear to the House that I will not sign up to those proposals." I thought that was a pretty emphatic statement.

Mrs Theresa May: With due respect, we have said that it is not right for the UK to be part of a Common European Asylum System. These are some pieces of legislation that are now being revised by the European Commission. There will be separate decisions on those particular aspects of what they would be creating as a Common European Asylum System, but that would not necessarily be the whole picture on a Common European Asylum System.

Q28 Chair : In the context, I seem to remember somebody once saying, "You turn if you want to. The lady’s not for turning." I do not want to misinterpret what you are saying, but there seems to be something less emphatic in what you are saying to us now. Of course, it will all come out in the wash, because we will see what these proposals are and what the Government’s specific reaction is. You had said that you would make it absolutely clear to the House that you will not sign up to these proposals. If in fact on closer inspection the "will not sign up" turned into "I don’t want to sign up"-which we hear quite a lot, for example from the Prime Minister occasionally-and myself and other members of the Committee find that, for one reason or another, other circumstances prevail, can we be quite clear about that? Are you saying that you could sign up?

Mrs Theresa May: Chairman, if I had done a Uturn, I would not be going to virtually every meeting of the JHA Council and making it absolutely clear that the UK does not believe that it should be a member of a Common European Asylum System and will not be a member of a Common European Asylum System. We have a process that the Government has introduced for looking at individual Directives when they come through. There is a proper process for doing that, for it being considered by the European Affairs Committee and considered on a case-by-case basis. We will go through that process with the proposals that the European Commission brings forward in relation to these two aspects of the Common European Asylum System. We have made our position absolutely clear. You will have noted in the European Council agreement that came out that, actually, there were some significant caveats added in relation to the Council final conclusions of the 23 June Council, in relation to the Common European Asylum System. It is right and proper for the Government to go through the proper process, and then notify the Committee of the collective decision that has been taken by Government.

Q29 Mr James Clappison: Can I ask you if part of that process would include the House of Commons having the opportunity to vote on any possible participation in any of the measures that are being considered by this Cabinet committee that you have just told us about, which we were aware of the existence of?

Mrs Theresa May: Yes, of course there is a Cabinet subcommittee that looks at European matters. It is the whole question of what will be subject to debate in the House, in the new scrutiny arrangements that we have put in place for Parliament, significantly enhancing Parliament’s ability to look at and scrutinise measures that are coming through. A final decision on whether these two measures would be subject to those debates has not yet been taken.

Q30 Mr James Clappison: Can I suggest to you that your judgment on this is sound and has been sound, as far as the approach the EU is taking on this? Can I suggest to you, as one of those who visited the Turkish/Greek border, I am surprised that the EU is responding to this with further proposals for legislation, when it is obvious that what is required is practical cooperation in ensuring that existing measures operate properly, when the reception conditions are an absolute international disgrace in Greece? The system seems to be breaking down. The procedures are commanding so little confidence that the courts in other countries are refusing to observe them. Surely, it should be the priority of the EU to work with individual nations to put this right, rather than using it, as would appear to be the case, as an opportunity for further legislation when what is already in place is not working.

Mrs Theresa May: It is certainly our view that the approach that should be taken and the answer to these problems is about practical work and cooperation, and not legislation. It is a matter for concern when legislation appears to be seen as the first resort in the answer to any problem, rather than as the last resort. We have been working with other Member States, encouraging others and the Commission to understand the benefits of practical cooperation, rather than simply reaching for the legislative tool at every occasion.

You mentioned the issue of the impact of what is happening at the Greek border is having in relation to our ability to deal with asylum seekers, because of course it does mean now, because of the courts’ decision, that we are not able to return asylum seekers to Greece, as we should be able to do under the Dublin Regulation. We have been fierce defenders of the Dublin Regulation. We think it is important that that should be retained and that there should be no attempt, as has been suggested, to introduce some sort of ability to temporarily suspend Dublin. We think that would be quite wrong.

Q31 Stephen Phillips: I just wanted to go back, if I could, to these two Directives that have been forthcoming from the Commission in relation to asylum, not least because we have to consider them this afternoon and whether or not we are going to send them for debate. Now, what you told the House last year-and I am not trying to be tricksy, just to get some clarity around the issue-was that there are many things coming out of Brussels in the area of JHA, such as the common asylum policy, that would involve, in the Government’s view, an unacceptable loss of sovereignty. I read what you said, at that stage at least, as a categorical assurance that they were not going to be signed up to. Come back on that, by all means, in a minute. A moment ago, I think you said there was a process for looking at these Directives as they came out, and that then the Government would take a view. I am not trying to be difficult, but I am trying to reconcile those two, because I do see a potential inconsistency there and certainly a potential steppingback from the position, as I understood it, that was expressed to the House.

Mrs Theresa May: I do not have the exact words that I used on the occasion. The Chairman did read them out. I think I was absolutely clear and the Government’s position is absolutely clear that we do not think it is right for the UK to be part of a Common European Asylum System. What we have are two Directives that are being revised by the Commission. We argue they should not be doing this, but they are revising two Directives about aspects of dealing with asylum. I do not want to dance on the head of a pin, but that is not absolutely the same as the Common European Asylum System, in that they are two aspects of asylum.

However, what I am trying to say to the Committee is that we do have severe reservations about the two Directives as they are being proposed. We have argued consistently, as Mr Clappison has raised, that practical cooperation should be the answer rather than revising these Directives. We are encouraging other Member States to look at whether or not there is a need to revise these two other Directives, but it is quite wrong for a Government Minister to know there is a proper process that Government goes through in coming to formal decisions on these matters and to usurp that process, simply because I happen to be in front of one Committee that is challenging me on this issue. I am sorry, but there is a proper process; we will go through the proper process and will notify the Committee of our decision.

Q32 Stephen Phillips: I follow that, but you will understand that our function is obviously to try to challenge you and, indeed, to try to get some clarity around these issues.

Mrs Theresa May: To try to get me to say something that you want me to say.

Stephen Phillips: No, I am not expressing a view one way or the other. It may be very sensible to sign up to these Directives.

Chair : To get you to reaffirm what you said previously.

Mrs Theresa May: I have reaffirmed what I said previously, Chairman, which is that we do not believe it is right for the UK to be part of a Common European Asylum System.

Q33 Stephen Phillips: The Commission regards these two revised Directives as the first stage of the harmonisation of European asylum law, does it not?

Mrs Theresa May: The Commission sees these Directives with a particular viewpoint. I am tempted to say that you yourself have just indicated that they are not the final word in relation to a Common European Asylum System.

Q34 Stephen Phillips: No, again I am not trying to lead you down a certain path but, if they are the first stage of the harmonisation of EU asylum law, then they are the first part of a common asylum policy that, again, you said you wanted to make it absolutely clear you would not be signing up to.

Mrs Theresa May: You are yet again, very elegantly if I may say so, Mr Phillips, trying to get me to give the Government’s decision on these two Directives, when I have indicated that that decision will be taken in the proper way, through the proper Cabinet processes.

Stephen Phillips: We will let you know, in the proper way, whether they are still held under scrutiny after this afternoon’s private meeting.

Q35 Chair : We will move on to the ministerial statement of 20 January 2011, relating to the question of the strengthening of parliamentary scrutiny of the Title V optin decisions. Home Secretary, previously you described our system of Parliamentary scrutiny of EU laws as "lacking real teeth". You will recall this, of course; it was a book, or pamphlet rather, and I remember having a copy of it and, indeed, discussing it with you-maybe contributing something towards it in evidence that I gave to your shadow team at that time. It was in 2007, and it is called "Restoring Parliamentary Authority: EU Laws and British Scrutiny". This is when you were shadow Leader of the House. You will understand that we take this very seriously; we do have memories and we look at the documents and the commitments that are entered into, as they evolve.

The Minister for Europe has told us that the commitments for enhanced parliamentary scrutiny of optin decisions, which he set out in his written ministerial statement of 20 January, are intended to give Parliament "far greater powers to influence the eventual optin decision" and, he went on to say, "to enhance the ability of both Houses to hold the Government to account". My question is: does the written ministerial statement go far enough, in your judgment, towards restoring Parliament’s authority over this very important area of European law making?

Mrs Theresa May: What the Government has done and the statement that the Minister for Europe made do indeed significantly enhance the ability of Parliament to hold the Government to account, to scrutinise measures that are coming out of Europe and the Government’s position that it takes on those measures. I am pleased to say that the arrangements that we are putting in place reflect a number of the ideas that came out in that pamphlet. As I say, we are now seeing some very rigorous processes being applied to the consideration of measures that are coming out of the discussions in the EU and the position that the Government is taking. There will be much greater opportunity in the arrangements that are being put in place for the voice of Parliament to be heard by Government in those discussions.

Q36 Chair : Which would never be described as "banging on" or anything like that, would it? You understand what I mean. The most important thing is that this Committee does perform its job properly, as Mr Phillips mentioned just now. You have no doubt whatsoever that we will continue to do so.

Mrs Theresa May: I consider that it is entirely appropriate for this Committee to do its job properly. I might point out, Chairman, in doing that that I think one of my suggestions was that the Committee should sit during recess.

Q37 Chair : Yes, and we are actually quite sympathetic to these ideas. We are at one, which is a very encouraging sign, is it not, Home Secretary?

Mrs Theresa May: I might start shaking and get very nervous at this point, Chairman.

Stephen Phillips: Was it not correct, Mr Chairman, that we were going to ask the Home Secretary to come back and give evidence during the recess?

Chair : Yes, that was the other one, particularly when she was on holiday, but never mind.

Q38 Kelvin Hopkins : I must say I am looking forward to this new world. We have suggested that the sands are starting to move; indeed, the Chairman suggests tectonic plates in the EU are starting to move, giving Parliament more powers. That is very appealing. Are you actually ready for these changes? Can you tell us what changes have taken place within the Home Office and across Government to ensure that you are able to deliver effectively on these new procedures?

Mrs Theresa May: We have had to look at the internal processes that we deal with in relation to how we prepare for consideration by this Committee, how we put together our views on these particular matters. One of the particular issues, I would say to the Committee, is not-and hence my comment about meetings-just a question for the Home Office or indeed for other Government Departments; it is for us to discuss together with the Committee some of the issues around timetabling, because the threemonth optin does put a real pressure on us sometimes, in terms of being able to look at things properly within a timescale. We are certainly very happy to do our best to make available at as early a stage as possible documents, so that the Committee can start its preparations. I would hope that there could be some flexibility there. We are also, within the Home Office, in relation to how people deal with this, conducting a training programme across the Department, in relation to ensuring that people understand what the new processes are and what they need to do to be able to fit in with those new processes. We have a dedicated team in our International Directorate in response to this.

Chair : The Ashton undertakings-you will recall Lady Ashton-commit the Government to arranging a debate, which is usually in the European Committee, if the European Scrutiny Committee determines that the decision on whether or not to opt in to a Title V measure should be debated. The undertakings do not specifically require the Government to hold the debate within the threemonth deadline for deciding whether or not to opt in, or sooner if the optin decision is taken at an earlier stage. In his evidence to this Committee that he gave in April, the Minister for Europe recognised that a debate held after the Government had made a final optin decision, and notified the Council Presidency accordingly, would be, in his words "a very poor second best". I invite Chris Kelly to ask the next question.

Q39 Chris Kelly: Thank you, Chairman. Home Secretary, can you assure us that the Government will not reach a final optin decision until Parliament has had the opportunity, if it so wishes, to express its view by agreeing a Resolution, following a debate on a Motion?

Mrs Theresa May: My first answer is that it is not necessarily the case that every optin decision would have a debate attached to it. There are some very practical issues here. It is certainly the Government’s intention, and I follow concur with the comments that were made by the Minister for Europe, that of course if you have a debate after a decision has been taken, then the debate loses its purpose; it loses its point. What I think we need to look at are the options available. We need to be flexible here in finding the different ways in which Parliament’s voice can be operated. For example, if a debate is requested close to a recess, it may be very difficult to enable that debate to take place; there may simply not be parliamentary time. Government Ministers are obviously in the hands of business managers here, in relation to how that can operate.

We perhaps need to look at some other alternatives-debates in Standing Committees, a debate on a Take Note Motion maybe-at the start of the optin process to inform the Government if that was close to recess. I would say to the Committee that we can consider a number of ways in which a flexibility can enable us to identify ways in which Parliament’s desire for its voice to be heard and Government’s desire to have systems that enable Parliament’s voice to be heard but meet the practicalities of the timetables that are set on us from others. It may be that the Committee wishes to discuss with the Backbench Business Committee, sometimes, in relation to some of these debates, when time is difficult.

Q40 Stephen Phillips: Again, you will forgive me for just trying to push a little bit further. Would you agree with me and would this, therefore, be the Government’s position that inherent in the Ashton undertakings is a commitment that it would only be in the most exceptional circumstances that a debate would not take place within the threemonth period?

Mrs Theresa May: I would agree that it would certainly be the intention of all involved to make sure that the debate did take place within the threemonth period. As I have said, if you have a debate after the threemonth period when a decision has been taken, then the debate does not inform Government’s decision. I think there will be or potentially could be some exceptional circumstances, where the timetabling is such that Government does need to take a decision before a debate has been possible, but in order to ensure that that would be only in very exceptional circumstances, I would suggest that flexibility in the format of debate and the way in which that was done might help both sides in this discussion and in ensuring that Parliament’s voice is heard.

Q41 Stephen Phillips: I think we agree with you on that, Minister, although I am speaking only for myself. Inherent in that answer was actually that you do agree with me: it would only be in the most exceptional circumstances that there would not be a debate within the threemonth period.

Mrs Theresa May: I would expect it to be in exceptional circumstances that there would not be a debate within that threemonth period. I would hope that it would be possible to find ways, if we were able, to have that degree of flexibility, but it is not entirely down to me as a Government Minister to determine when debates are taken in the House; that is a matter for business managers. If you sense a degree of caution in my response, it is purely that this is not a matter that is entirely within my hands.

Q42 Chair : I am glad you use the word "entirely". Some of us who have been around here for 27 years or whatever do know, of course, that the Whips do not suddenly conjure these dates out of the air. There is an exchange. I have no doubt whatever-and we are realistic about this-that there is a degree of opportunity, at any rate, to give us a little bit more advance warning. I would mention in particular, for example, the Investigation Order, which we looked at earlier, and one or two others, because there is a whole spate of these optins-a point we have not made much of this afternoon. I describe them as a "tsunami". There are a lot of optins that are currently going through the process, which you do control.

If you are going to make a statement saying that you are going to opt in, and there is not any notice given whatsoever until the moment when the Speaker has it registered on the system that is provided around the House, there is a real problem. That is that there are people, on this Committee for example, who simply have no idea it is going to happen. I, as Chairman, do not get any formal warning of it. It simply goes to the Speaker; you make the statement; you say you are going to optin. There having been no formal notice to the House otherwise that morning, it follows that there are people who have a very considerable interest in and knowledge of the issue in question, who simply would not know that you are about to make a statement and they are elsewhere. I just invite you to consider that, because it would be very helpful if you could perhaps arrange for your people to tell our Clerks that this is in the pipeline, just as for example, when there are important statements, White Papers or whatever, the shadow Front Bench is given forewarning, albeit about an hour before. It doesn’t mean to say we have to go rushing off and tell the world about this, but it would be extremely helpful so that the Committee, at any rate, would have some knowledge about the fact that you were going to make a statement. Do you agree with that in general?

Mrs Theresa May: I see the point you are making, Chairman. I am tempted to say I hope that the Committee and others are not, as a result of what you have just said, taking away the view that somehow the Home Office has been negligent in trying to ensure that we have debates on these matters. The European Investigation Order optin decision we had to take by a particular timetable and it was literally the day after this Committee had been formed, so there was an issue in relation to that.

Chair : I know. That is a correct. That was a particular case, yes.

Mrs Theresa May: That was an unusual set of circumstances. We have since had debates on the Human Trafficking Directive and the PNR Directive.

Chair : I am not talking about debates. I am talking about you making a statement.

Mrs Theresa May: I know, and I am answering to the context in which you asked the question. In relation to the statement, we are working with the Clerks to look at this. There are some issues around the procedures of the House in relation to who is informed in advance of a statement. We are working with the Clerks to look at what would be possible in relation to this issue. We are also, I hope, doing some things that are helpful to the Committee. We have written to the Committee listing those optin decisions that we believe will be coming over the next six months, so that you are aware of those significantly in advance. I am not sure there is a "spate" of optin decisions, certainly from my point of view. We do have the two that have been referred to earlier, the two Directives in relation to asylum and of course the EU/US PNR and EU/Canada PNR agreements, which we expect over the next few months, over the summer recess, as likely to be coming through. We are doing our best to keep the Committee informed, as far in advance as possible, of our best indications of what is likely to come through, so that we can get through some of these timetabling issues.

Q43 Kelvin Hopkins : On the sofas of Downing Street and in the walkinthewoods approach to policy, decisions are made and then they are sold. In a sense, what the Chairman is saying is we want to have a genuine say before decisions are actually made. When a statement is made in the House of Commons, often it is at short notice; it is sprung on us and then the Government cannot retract once it is in the public domain, and Government Back Benchers are unlikely to want to embarrass the Government by forcing a retraction. That is what we are concerned about. Isn’t that something we want to see?

Mrs Theresa May: I fully understand the point that you are making. As has been indicated previously, I myself have been and remain sympathetic to the need to ensure that Parliament has a much greater ability to have its say in these sorts of decisions, as they are being taken. I understand the point about what happens when a statement is being made. I am trying to add a realistic and practical edge to this. There will sometimes be circumstances that mean that timetabling is such that Government has to take a decision, and it may be difficult to put in place the full decisionmaking process that one would anticipate. As I have indicated, we are trying to do everything we can to ensure that those circumstances do not arise.

Chair : Turning to the question of strong parliamentary interest, James Clappison, would you like to just give a little introduction as well, because I think it would be useful to those who are listening?

Q44 Mr James Clappison: As part and parcel of the discussions that are taking place on this, and with the flexibility in mind that you have referred to, there has been recognition of the importance of having debates where there is a strong parliamentary interest in the optin. I wonder if you would agree with me that it would be very unfortunate if a strong parliamentary interest had been indicated in having a debate on whether or not to opt in, and then the Government took the decision to opt in before Parliament had had the opportunity to have that debate and express its view.

Mrs Theresa May: As I have been indicating, the whole purpose of what the Government has been doing with the new arrangements is to try to ensure that parliamentary views can be heard and understood before Government is taking decisions. Although the final decision as to a debate, under the new commitments, rests with Government, we are very conscious of the desire from Parliament to ensure that its voice can be heard. In practical terms, in arranging these things, I come back to the point that business managers also have to be involved. Although I took the point that the Chairman made about the arrangements by ways in which decisions are taken on debates, I would also make the point to this Committee that the amount of time that is available to Government for debate now has been significantly reduced, because of the introduction of the Backbench Business Committee and the number of days that the Backbench Business Committee has for debate. As far as Government is concerned, we are operating with a more limited timetable in which it is possible to have debates.

Q45 Chair : Somewhat unusually, you were shadow Leader of the House before you took on this role. Therefore, you are very familiar, and you wrote the pamphlet on European scrutiny, so we know we are talking to somebody who has taken a very active interest in this. I also recall, and this is a matter of mutual satisfaction to both of us, I have no doubt, that I put forward a proposal to you at that time that we should have a threshold, with respect to the question of a vote, of something of the order of 150 members, in order to indicate that there was a serious interest in having this vote in the House of Commons. Do you agree with us generally that a vote in the House of Commons opposing the Government’s position would be decisive and operate as a parliamentary lock? We had some discussion with the Minister for Europe about this.

Mrs Theresa May: Yes, I am aware that you had some discussion with him.

Chair : Wearing your new hat, of course.

Mrs Theresa May: My position is very simply that I think it would be very difficult to imagine circumstances in which, if there was an opposition in a vote that was taken in the House on something, the Government would choose to go in a different direction. That is the term in which I choose to put it: it is very difficult to imagine the circumstances in which the Government would choose to go against a vote that had been taken.

Q46 Chair : We will move on to the next and last issue, which is the assertion of the application of the optin protocol to international agreements without a Title V legal base. The first question relates back to what the Minister for Europe said. I am now going to repeat that, in his recent evidence to us, he said that the legal advice across Whitehall had been very clear that the optin applies to justice and home affairs provisions in international agreements on the basis of content, and that an express citation of a Title V legal base was not necessary. As you know, we do not share this view. Firstly, therefore, do you agree with the Minister for Europe that the legal position is unequivocal or do you see any difficulty with the UK argument?

Mrs Theresa May: I agree with the Government’s position that the optin should apply in relation to content and not simply whether it is pursuant to Title V. I might as an aside, Chairman, comment that I find it interesting to be in the position of wanting to see the widest possible definition of those circumstances in which the UK Government’s optin applies and a wider description of those circumstances that the Committee chooses to support, but certainly I believe that it is the case that the optin should apply when there is JHA content, rather than simply where it is an agreement that is under a particular legal basis.

Q47 Chair : We are not seeking to be pedantic about this, but our documents specifically state the legal base. That is what goes out to the public at large. Let me put it this way round: if there is no Title V legal base, how else can those parties legally affected by an international agreement actually know which aspects the UK has opted into or out of? It is almost a matter of record, apart from anything else, but there is a substantial legal question that lies at the heart of it.

Mrs Theresa May: It is precisely the point that it is a matter of record, surely. If you are assuming that people who are affected by agreements will only assume a UK position dependent on whether or not it is an agreement that has a Title V legal basis, I would suggest that they need to reconsider the way in which they approach these matters.

Q48 Chair : The short answer to that is that, in terms of scrutiny, we have our own procedures. We send out signals. If we see a document that has no legal base, then immediately we begin to get very anxious about it, because there are some people in the European Commission and otherwise who would really quite like to be able to get things through. We take a rather precise view about it, and we expect a legal base in order to be able to justify the document in question. That is really what lies very much at the heart of it. I would be grateful just to have a little bit more from you on that.

Mrs Theresa May: I may have misunderstood the comment that you have just made, Chairman, and I may ask Alistair from the legal side, because he may wish to comment on this. The point I would make is, if you are suggesting that you have a concern that the Commission may try to insert matters inappropriately on something-

Chair : Let’s call it pushing the envelope.

Mrs Theresa May: I would argue in a practical sense that it is better to take a view that one should look at what is inside the envelope, and make a judgment as to whether the optin applied according to what is inside the envelope and not according to the size and shape of the envelope.

Q49 Chair : I think that is a very good point for me to mention, for example, the question of the Portuguese bail-out at Article 1(2)(2). If you looked at the content, you would notice that Article 1(2)(2) quite unequivocally refers to natural disasters and things of that kind, but the question of the legal base is a matter of extreme contention in this context. That is not strictly speaking your business, but I do say that these issues can become rather important from a practical point of view.

Mrs Theresa May: Just one comment; I will not comment on matters that are appropriately matters for the Chancellor of the Exchequer. What I would say is that, from our point of view, if there was no legal base cited, then we would certainly be looking for the legal base on which the Commission was doing that.

Q50 Chair : Would Mr Robinson be kind enough to help us on that?

Alistair Robinson: Sure. I would just add in respect of this, as you rightly pointed out, if the proposal did contain justice and home affairs content, that is precisely why we would be concerned to see that the UK’s position was properly reflected by, one, the citation of a Title V legal base and, two, the application of the protocol. I was just going to add that I think it is common ground that that is what we would always be seeking in relation to a legal proposal. The issue that we have is in relation to those instruments where a legal base is not actually cited; therefore, how do we go about ensuring that one should be cited there? If it is not, what do we do? It is precisely in perhaps that minority of cases where we need to protect our position and assert that the protocol does apply. In this context, we would be concerned about the EU exercising competence in relation to justice and home affairs matters, and say, in those limited circumstances, this is precisely that which triggers the protocol.

Q51 Stephen Phillips: I was very interested in that answer actually. In an instrument where there is no Title V legal basis asserted-this is really to the Home Secretary, I suspect-but the envelope contains, in the subjective view of the Government, Title V measures, the position of the Minister for Europe was that the Government is inclined to the view or in fact firmly believes that it is entitled to an optin decision in relation to those measures. Is that correct?

Mrs Theresa May: Yes, regardless of how incidental the JHA content may be, our view is that, if there is a measure that has JHA content, we are entitled to the optin. The optin would apply.

Q52 Stephen Phillips: I think Mr Lidington said that that was the position across Government.

Mrs Theresa May: Yes.

Q53 Stephen Phillips: I don’t know whether you read his evidence, but it is not the position of the Irish Government. Do you have any comments on that?

Mrs Theresa May: Again, my colleagues may wish to comment on the discussions. We have been talking to the Irish Government about this, and we understand that they are taking a different view on this.

Q54 Stephen Phillips: Would that be one inspired by the fact that they now know that the British Government has taken a different view?

Mrs Theresa May: I don’t know the legal basis or advice on which they have taken their view.

Q55 Stephen Phillips: The difficulty I have, and maybe this is to Mr Robinson, is that you need a legal base to be stated before the EU has power to act. There is case law to that effect; we look at Council and Commission, for example, 2009. In the absence of a legal base, how can one say that the Title V optin is lawfully in play at all?

Alistair Robinson: I would take you back to the answer I gave just a moment ago: it relates to the exercise of competence. The protocol itself talks about measures pursuant to Title V; it does not talk about acts to do with legal base. The concern is we are then, in these limited types of examples, in a position where the form of the measure perhaps-i.e. in this case there might not be a Title V legal base being asserted where the envelope is being pushed-dictates the position of the UK in relation to the protocol. If the EU is exercising competence in relation to justice and home affairs, in our view-and I would add that we would be approaching the matter by looking at the overall content of the measure and taking an objective assessment, just in the same way as the institutions are-that is why we think that the protocol would apply.

Q56 Stephen Phillips: How would a third party to an international agreement know, in the absence of a legal base, which parts of the instrument the UK considered itself to be party to and which parts it did not?

Alistair Robinson: Taking the example of the Philippines agreement, in relation to that, first of all, as you know, the Council’s decision now cites a Title V legal base. In addition, there is a recital to that agreement, which specifically refers to the application of the Title V protocol in relation to the UK and Ireland. Those for example would be indications to the other parties.

Stephen Phillips: There is a specific reference to a legal base there.

Alistair Robinson: Yes, but I think the Philippines is a good example as to how the position has changed.

Q57 Stephen Phillips: The Government’s position is that you do not need a specific reference to a legal base at all. You can just decide what an optin Title V measure is in the agreement and what is not.

Mrs Theresa May: We are slightly going around in circles here. The point is that, if the Commission introduces an agreement that does not cite a Title V legal base, but nevertheless they have inserted JHA content into it, because the optin applies pursuant to those Title V measures, as Alistair has said, it is entirely right and appropriate for the UK to say, because there are aspects of this agreement that are pursuant to these measures, which are under the JHA remit, our optin therefore applies to those. We would, in those circumstances, prefer to see and would argue that there should be a Title V legal base to what is being done. There is a slight chicken and egg here. We would prefer to say, if we identify JHA content, our optin applies, but we would argue that the Commission should put a Title V legal base on to that agreement. Hopefully, as has been seen, that can be done and things can be changed on that basis, rather than, because it has not got a Title V legal basis, notwithstanding that it has JHA content, not saying that our optin applies. We are in a stronger position in the former than we would be in the latter.

Q58 Stephen Phillips: I quite understand the political position and, indeed, for my own part, support it. I am concerned with the legal position and that is what I am having difficulties with. You say that the position of the Irish Government is changing. Will you be in a position to write to the Committee indicating in what respects it is changing?

Mrs Theresa May: Sorry, I said that we are having discussions with them. As I understand it, they believe that any measure that has JHA content should have a Title V legal basis. Unlike us, they consider that the optin is only triggered if there is a Title V legal basis.

Q59 Stephen Phillips: I do not think their position has changed then. We have recently been in correspondence, which I do not think you know, with the Council legal service, which has dealt with our report on this issue. They said this: "given the special position of the UK, Ireland and Denmark under Title V, the Council legal service takes the view that where an international agreement covers several matters, including matters covered by Title V…, the acts pertaining to its signature and conclusion must refer to the Title V legal base…it is therefore not for the UK or Ireland (or Denmark) to decide whether (a part of) an agreement falls under Title V…, but for the Council." Would you wish to offer any observations on that legal advice from the Council legal service?

Mrs Theresa May: The observation that I would make is that, if I heard your quote from them correctly and understood it correctly, they were effectively saying that anything that had JHA content should have a Title V legal base. We would certainly agree that, if there is JHA content, there should be a Title V legal base.

Q60 Stephen Phillips: That point I have, but that is not the point I am on. I am on the point where there is no Title V legal base. We all want one to be there, but what if there isn’t? The Government says it is still entitled to say: this is JHA; we have an optin. That is the legal advice, as I understand it, that you have received. Ireland takes a different view. This Committee takes a different view. The Council’s legal service takes a different view. The Commission, we suspect, takes a different view. My own view is that the ECJ would take a different view. What therefore is the Government’s position in relation to that?

Mrs Theresa May: My position is I cannot predict what the ECJ would do. Should the matter be brought before them, we will argue our case and seek to persuade them of our view. Our view is consistent across Government. It is not just a view that we believe is the right view that has a legal basis for being taken, but also a view that ensures that the UK has the greatest possible ability to ensure that JHA measures are not put into agreements without our ability to approach those in the way that we do on all JHA measures.

Q61 Mr James Clappison: I very much welcome the flexibility that you are taking on this, Home Secretary. Those who have been on the Committee will have seen many examples of the European Union, and the Commission in particular, seeking to exploit measures to their fullest and putting inappropriate measures under headings or not including them at all. Really, Mr Phillips has just come to the point that I was going to ask you about, in the final question. If the situation is this, that there is no Title V legal base and we insist that it is a matter that is within Title V, and therefore subject to our optin, and the Commission and whoever else is concerned, our partners and so forth, take a different view, it will be for the European Court of Justice to decide ultimately. That is the nature of the thing under the treaty. Is that right?

Mrs Theresa May: They are the ultimate determinants of this. It is a question of whether or not a case would be brought before them. We are conscious obviously of the list of organisations and groupings that take a different view from us, and we will constantly challenge ourselves on this, I think it is fair to say. We continue that view.

Mr James Clappison: We understand that you are doing your very best on this, within the confines that you are in, and this is the nature of the beast you have to deal with.

Chair : On that note about the nature of the beast, Home Secretary, we are extremely glad to have had you here this afternoon. Thank you very much for your answers, and for your colleagues’ attendance and their participation. Thank you very much.

Prepared 13th July 2011