European Scrutiny Committee - Minutes of EvidenceHC 109-II

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Oral Evidence

Taken before the European Scrutiny Committee

on Wednesday 28 November 2012

Members present:

Mr William Cash (Chair)

Mr James Clappison

Michael Connarty

Nia Griffith

Chris Heaton-Harris

Kelvin Hopkins

Chris Kelly

Stephen Phillips

Jacob Rees-Mogg

Henry Smith


Examination of Witnesses

Witnesses: James Brokenshire MP, Parliamentary Under-Secretary of State for Crime and Security, Home Office, Kenny Bowie, Head of the Opt-In and Treaties Team, and Fiona Fraser, Legal Adviser, gave evidence.

Q44 Chair: Welcome to this afternoon’s session. It is good to see you, Minister. I will start with the first question. The Minister for Europe’s ministerial written statement of 20 January 2011, with which you are of course familiar, promised a significant strengthening of Parliament’s oversight of EU justice and home affairs measures and greater Government accountability for the decisions it makes in Brussels. How influential are the views of Parliament in determining whether or not to opt into a particular EU justice and home affairs measure, and can you cite an example where concerns raised by this Committee in its weekly report, or by members in European Committee or Floor debates here or in the Lords, have caused the Government to change its mind and its initial position on an opt-in?

James Brokenshire: Thank you very much, Mr Chairman. Before I respond directly, perhaps I could ask my two officials to introduce themselves and then I will start.

Kenny Bowie: I am Kenny Bowie, Head of the Optin and Treaties team in the Home Office.

Fiona Fraser: I am Fiona Fraser. I am the head of the EU and International team in the Legal Adviser’s branch in the Home Office.

James Brokenshire: First, can I thank you and thank the Committee for the interest that you have taken in relation to this important issue of scrutiny. We do take it extremely seriously, and the Government has stepped up the level of scrutiny attached to justice and home affairs measures, as set out in the statement of the Europe Minister at the beginning of last year.

The scrutiny is important because it does allow Parliament, whether through the two specific Lidington debates we have held or, indeed, the way in which your Committee has sought to refer opt-in decisions to the Standing Committee, to add further rigour and consideration to each of these measures. I know for example that the outcome from the debate we had on Eurodac in September certainly did reflect in the decisions that were finally taken. I hope the Committee will see that the approach the Government finalised did reflect the views of the Committee in that respect. We are certainly stepping up our scrutiny. Can we do more or should we be doing better? I think there is certainly scope for improvement.

When I look at the two full Lidingtonstyle debates that we held on the Floor of the House, they did not perform as well as I would have liked. I hope the Committee will have noted that I did put that view very clearly when I spoke to the second of those debates in the House. In part that was occasioned by the fact that a formal crossGovernment decision on whether we should opt-in or opt-out was only taken around 48 hours before the debate. I do not think that aided the scrutiny in the two cases for which we have had the specific Lidington debates thus far. Certainly we are putting in measures and steps to fulfil your wishes on having a clear Government decision at least a week before those debates, so that there is time for preparation and proper consideration. That is something that I do believe in very strongly.

Q45 Chair: As you know, we were pretty angry about that, but you acknowledged it and we are grateful for the fact that you are now cognizant of the fact that this is something that should not be repeated.

James Brokenshire: Absolutely. For me as a Minister, I really do believe in scrutiny of these measures and it was not as I would have wished it to have been. Subsequent to that debate, I had meetings with ministerial colleagues-the Minister for Europe and also with those in the Ministry of Justice. There is a code of practice that is being finalised to underline that, if there is an issue that is likely to be significant and therefore likely to trigger a Lidingtonstyle debate, it should be flagged up earlier so that the time lines in relation to consideration across Government are brought that much further forward. This will ensure it provides that ability to give a clear view in advance of the debate, rather than leaving it until the point when the decision would have to be taken, which would be slightly later. I think it is fair to say that in respect of each of the optin/optout decisions that have been taken, there has been the ability to have each of those debates, whether in Standing Committee or on the Floor of the House, before the time period has elapsed in terms of the exercise of the optin or the optout.

Q46 Michael Connarty: Welcome, Minister. The actual memorandum talking about how we should deal with opt-ins says, "Debates in Committee or on the Floor serve to crystallise and highlight Parliament’s concerns on important issues." It goes on to say, "The Government is keen to encourage as many parliamentarians as possible to participate in such debates and welcomes the fact that the meetings of the European Committees are open to all." It then goes on to note: "The Government notes that some debates have been sparsely attended or have concluded very quickly." I will give you some facts. On four occasions no other Members other than those appointed to serve on the Committee attended. On seven occasions just one Member attended who is not appointed to the Committee. On one occasion there were actually two additional Members who attended. On one occasion the debate lasted just 13 minutes, which should be of concern to you in your particular remit. This was in fact on 22 May in the debate on criminal justice and detention issues. The longest debate lasted one hour and 58 minutes. You know that the membership of the Committees is ad hoc. What is your assessment of such important matters as optin debates taking place in European Committees?

James Brokenshire: You rightly point out some of the challenges with the Committee debates. Mr Connarty, you and I have attended a number of those that have finished early and where the large bulk of the time that has been used even within that time has been opening statements and statements from the two Front Benches. I do look at that and think about whether that is going far enough. I know that in the evidence session that the Minister for Europe attended, Mr Cash highlighted the previous regime, where there were permanent members who attended and gave that additional level of expertise and rigour. I fully recognise that a lot of what we do is very technical. It is about those issues of whether there is a specific legal base or not, and the relevance and significance of that to whether or not, for example, an optin has been crystallised.

I do therefore welcome the detailed consideration this Committee is giving to this issue. I also welcome how we are able to draw upon expertise from, for example, the Home Affairs Committee or the Justice Committee, so that there is greater readacross of expertise that is able to better inform the consideration not only of the technical EU aspects of this, but also of the broader policy issues that some of the other Select Committees are able to draw upon as well.

Q47 Michael Connarty: Just on that, it is worth putting on record that this is not a matter of concern just to the present Government. It was, in fact, following the 2005 general election that Sessional Orders were moved aside, and the requirement of Standing Order No. 119 for permanent membership of the then three Committees was set aside. There used to be two and, after some debate they extended those to three, because it was said that the remits of the two were far too large, so we needed three. This then persisted and the Sessional Orders were each removed until ad hoc membership was made permanent from 1 January 2009. Basically, we are in a situation where what was a trial was found to be suitable for someone’s interest. Clearly, from our point of view, we now do not often get people from the subject Committees attending. Even when they are named, sometimes there is nobody from subject Committees in attendance. Do you think that the European Committees would be more effective with a permanent membership, which we used to have? That develops Members’ facilities and familiarity with the subject matter, particularly in complex fields such as your own-justice and home affairs. It would mean that, rather than calling people from outside and hoping they turn up, people in the Committees themselves would have expertise in the EU dimension.

James Brokenshire: One of the challenges is, notwithstanding the composition, to see that members then participate. My understanding of the previous regime with permanent members was that attendance was poor. That actually then led to the regime that we are currently working under. It is a question of whether there is enthusiasm for members to be nominated on that basis. Equally, the whole concept of things like rapporteurs on specific subject matters to inform the Committee is something that I know has been floated-to have individual members of this Committee who may volunteer to take on a particular role for a particular subject matter, whether that be justice and home affairs or otherwise. It is a question of examining this range of options to see what is likely to encourage the most participation, so that we do get robust and detailed scrutiny and draw in expertise from wherever it can be drawn.

Michael Connarty: Just to put it on record before we move on, I volunteered to go on the European Scrutiny Committee’s subcommittees in 1994, and I certainly found that the attendance was at least consistent, with people who wanted to gather expertise on European matters. You had three, four or five people who attended on a regular basis, of the named individuals. They became quite expert in the fields of Committee A, B or C. It is that expertise that has been lost. We did not necessarily always have all 13 members attending, but those who were interested in building expertise could do so. This is now missing.

Q48 Chair: This is very important. One might encapsulate it by paraphrasing Much Ado About Nothing: the fault lies not in ourselves, but in our Standing Orders. We have to try to get this right so that we make sure we have full engagement with people who have enough expertise. Would you agree with that generally?

James Brokenshire: I do. We want to ensure that we get the most from those sessions, so that Parliament is able to ask me, as a Minister, questions and for us to provide information into those sessions, so that there is good and detailed consideration of the dossiers and papers we are seeing from Brussels. I do not want to see some sort of cursory ticking the box and saying that because we have had the Committee, that has satisfied the scrutiny. It may do on one level, but it is still a question of how we can ensure that there is robust challenge. That relies on having expertise in a number of the process and procedural issues that lie behind EU law, as well as the subject matter itself. The challenge is how you are best able-through the Standing Orders and through sharing knowledge and understanding through the membership of the House-to garner that ability to deliver on that. I fully recognise that that remains a challenge.

Q49 Kelvin Hopkins: I was a permanent member of European Committee B from 1997 to 2005 until the European Committees were abolished as permanent membership committees. In the early years, they were well attended. They typically took the whole two and a half hours allocated to them and often it was a problem getting in to speak. Things changed after that. I am wondering if both the previous Government and this Government’s establishment of vast numbers of Parliamentary Private Secretaries as a route to advancement has made a difference. People perhaps now see that as being more important than sitting on even Select Committees, let alone European Committees.

James Brokenshire: It is funny. In this Parliament we have seen what I would not describe as a renaissance, but certainly Select Committees taking an increasing role. That is really good and healthy to see for both scrutiny and our democracy, so I do not necessarily see it in that way. I think it is perhaps more about the level of knowledge that Members have across Parliament on these issues, perhaps because there has been that reduced engagement over time. It is a question of Parliament together underlining that these issues are important. That is why we have made the statements we have made about stepping up scrutiny, about the rigour of that process, about reporting back and about the annual statements that are given in respect of EU matters. I very much want to see this aspect of scrutiny being stepped up in the way that other aspects of scrutiny have been.

Q50 Chair: Basically, we seem to be getting towards some form of agreement that it would be a very good thing, given the amount of attention that is given to the European question through the press and the media generally now. The more people that engage in the subject in Parliament through this sort of process and get the expertise you have referred to by being in on those Committee hearings, the better it is for the country at large because they will be better informed.

James Brokenshire: Having more information and being better informed is absolutely right. When we look at the work around the Review of the Balance of Competences, it is about providing information, evidence and analysis to inform evidentially the debate and the discussions around these very significant issues. We should look at ways in Parliament of stepping up that knowledge. I fully accept these areas can be quite dry at times, in terms of whether it is a Title V legal base, whether it is a Schengenbuilding measure, which part of the acquis it is, or whether it is an issue that we are participating in. These are quite technical issues for those who do take an interest in this and have been involved, and if you are not that engaged, it can seem quite imperceptible: "What does this actually mean?" There is a challenge of trying to decode some of this to explain it in simple terms so that we can more broadly engage in the debate around these very important issues.

Q51 Chair: They are important because they do actually crop up continuously in your field. What goes wrong-if it goes wrong-in our relationship with the European Union crops up from time to time in the press.

James Brokenshire: When we have the different measures and the different dossiers that come forward under the postLisbon arrangements, where we have an opt-in that may be triggered, or on a Schengen measure an optout, some of these issues do require detailed consideration. That is why, through the Lidingtonstyle debates, we wanted to take this to the Floor of the House rather than simply having it in Committee. That is not to underplay the work of the Committee; it can and does do extremely important work. It is to give a greater showing of the decisions that come through from Brussels and from the specific dossiers that are published, because they are important.

Q52 Stephen Phillips: I just wanted to return to the Lidington debates, if we may, for a moment. You referred earlier in your evidence to the necessity for there to be robust scrutiny. Of course, we have the Lidington debates, which are supposed to give rise, in certain circumstances, to that robust scrutiny. We have had two so far and they were at best highly unsatisfactory for reasons of which you are aware. You wrote to us last June and you referred to a number of unforeseen factors that gave rise to timing problems on both occasions. What were those factors and how often, if at all, do you expect them to recur in the future?

James Brokenshire: In respect of both of the debates, as I have already referred to, a final formal decision cross-Government only came to fruition around 48 hours before.

Q53 Stephen Phillips: I do not want to interrupt you, Minister, but that is a statement of the problem. My question is a different one: why did that happen?

James Brokenshire: I understand, Mr Phillips. I think the Minister for Europe indicated this when he gave evidence to you. It is not simply the Home Office’s view, because we have to get collective agreement across Government, and sometimes there are Coalition sensitivities that need to be worked through to arrive at that outcome, so there are challenges in establishing a crossgovernmental position.

First, there are the timing issues, which I have spoken about. Government Departments have not been responding early enough to the writerounds that go on to seek the views of different Departments, and the significance of there being a Lidington debate has not been appreciated. This is why the time lines needed to be brought forward, and that is something we are actively addressing through the new code of practice that will be adopted. That will be followed through by the different scrutiny co-ordinators who have responsibility in each of the Departments, so that there is a good understanding. Certainly the Home Office is doing its bit with other Government Departments to explain this process and procedure so that there is better recognition of the need to come to views early. If there are different views on a particular measure, they will be escalated quickly so that resolution can be reached.

Q54 Stephen Phillips: That is quite a long answer, for which I am grateful. Let’s just go back to the Coalition sensitivities. Is part of the answer that the Lidington debate regime does not work well when there is a Coalition Government?

James Brokenshire: In any Government of whatever hue there will always be differences of view. Obviously we do have a Coalition, and that means we have two parties together, so there are a range of different views that can occur. There are challenges, and I would not shy away from that. The question is how to get the process right so that we are able to resolve those issues quickly and Parliament is able to have a meaningful, proper and robust debate over the individual measures.

Q55 Stephen Phillips: When is the code of practice going to be finalised?

James Brokenshire: The code of practice is literally in its final stages. I have a draft, which is about to be signed off and circulated. I would certainly anticipate that that will be in place before the end of the year.

Q56 Stephen Phillips: Will a copy be provided to the Committee so that we know what it says?

James Brokenshire: It is an internal Government document.

Stephen Phillips: I am aware of that.

James Brokenshire: It obviously informs consideration across Government, and I will certainly take advice on what would be normal in respect of those documents. If it is practice that documents of that kind should be shared, then we will share them.

Q57 Stephen Phillips: Finally, you will know that the former Parliamentary Under-Secretary at the Ministry of Justice told us that in future it would be desirable if we got at least a week’s notice of the Government’s optin position. Are you in a position to give us an undertaking that that will always happen in the future?

James Brokenshire: I agree that there should be a week’s notice. We will do our absolute utmost to make sure that that commitment is adhered to.

Q58 Stephen Phillips: Let me try again. Are you in a position to give me an undertaking that that will always happen?

James Brokenshire: On home affairs issues, because they touch on a number of different Departments, then I want to see the full week being given. It is difficult for me to be absolutely categorical with you, Mr Phillips. I am not trying to circumvent your question. I am trying to highlight that sometimes there are unforeseen circumstances that crop up, but you have my assurance that we will be doing our utmost to ensure that that week’s notice is given.

Q59 Chair: We will give you our assurance that we will get very cross if in fact that does not happen.

James Brokenshire: I entirely respect that. It is right that this Committee should do so because, again, it is about the scrutiny being applied, and we want to ensure that there is good, robust and clear scrutiny.

Q60 Chair: I have one last observation on what Mr Phillips was saying regarding the Coalition. Would you regard it on occasions as being more of a coalescence than a coalition?

James Brokenshire: No, it is certainly a Coalition. We do have good and robust debate from time to time, but that produces collective agreement with which we are then able to move forward.

Q61 Mr Clappison: I am afraid I have to come to a subject that you have already described as dry. That is Title V; you gave it quite a good build up. We have noticed that an increasing number of Explanatory Memoranda in policy areas covered by Government Departments including the Home Office and Ministry of Justice assert that the Title V opt-in may apply even though the measure in question does not actually cite a Title V legal base. Could we be given assurance that the Departments will look more carefully at this and give us better information?

James Brokenshire: It is where an issue touches upon justice and home affairs that we will always seek to assert the Title V legal base, such that our optin right is assured. Sometimes there are, as you will be well aware, Mr Clappison, differences of view between us and the Commission as to what the right legal base should be for a particular measure. Indeed, your Committee has supported the Government in a number of cases where we have sought to embark on that challenge with the Commission’s Legal Services. Where we see that there is a justice and home affairs element, we will always seek to assert a Title V where appropriate.

Q62 Mr Clappison: Do you agree that where an Explanatory Memorandum states that the UK’s opt-in might apply, the full Lidington–Ashton commitment should be applied?

James Brokenshire: When we have a matter that we assert has a Title V legal base, I think it is appropriate for us to maintain the same rigour regarding the issues over the reporting of that, the statements that are contained within the Ashton and Lidington requirements in respect of what appears in the annual reports, and the written ministerial statements or, at times, oral statements that are required. If we are asserting a Title V legal base in that environment, that should flow through in respect of the other commitments that we give.

Q63 Mr Clappison: Where there appears to be doubt as to whether the optin applies, do you agree that Departments should seek to reach a view within the initial eight-week scrutiny period so that there is time for the Scrutiny Committee to recommend an optin debate?

James Brokenshire: I do-where that is possible. I appreciate that at times, Mr Clappison, these issues-and I can think of one or two examples-have come up late in the day, sometimes with other Government Departments that perhaps are not so familiar with the Title V legal base and the triggering of the opt-in. We are taking steps across Government to ensure that there is a good and better understanding of the Title V legal base, such that we are able to assert our opt-in rights and, indeed, ensure that this Committee has the ability to scrutinise those decisions.

Chair: One of the questions being brought up more frequently now is the greater involvement of departmental Select Committees.

Q64 Henry Smith: Minister, on that point, do you think that the departmental Select Committees have the ability and, indeed, the inclination to take on more work in the justice and home affairs field?

James Brokenshire: Obviously that is a question that I am sure you will have discussed with some of the Select Committee Chairs themselves. I certainly think that there is scope for this. The question is what the format for that is, given that each of those Select Committees already have full programmes of inquiries on specific subject matters. It is important that we do draw upon the expertise of those Committees. The question is working through how to do that appropriately, recognising the heavy workloads that the departmental Select Committees are already bearing.

Q65 Henry Smith: What do you think are some of the potential advantages or disadvantages of the departmental Select Committees taking on more of that justice and home affairs work?

James Brokenshire: It is a question of the way in which you do it. I have seen a suggestion that you could have a rapporteur or an individual who would sit, potentially, on each Committee or have some link in to both Committees to be able to draw upon that expertise. That obviously would not increase the resourcing or the pressure on the departmental Select Committee. We have seen from the Home Affairs Committee that different departmental Select Committees will take an interest in specific matters. For example, from the Home Affairs Committee’s perspective, they have taken an interest in Europol over a number of years. I think it is right and proper that they should do so in terms of the link with domestic policing, the fight against organised crime, and what Europol’s role may be in that regard. There is scope for it; some of that work is already taking place, but there is certainly scope for more to be done.

Q66 Chair: Within the House of Lords system there is a much broader approach to questions that arise of the kind you have just mentioned. Would you agree that it would be extremely difficult, given the volume of material, which can be as much as a couple of inches high on a given day, for every departmental Select Committee then to consider every single thing that comes through that is remotely important? Would you not agree it would be quite impossible?

James Brokenshire: That is an absolutely fair point, Mr Cash. There are two issues to consider here: firstly on the ability for departmental Select Committees to be able to assess that material, the concept has been touched upon of a rapporteur who may be able to facilitate that for this Committee or for a departmental Select Committee. It also touches upon the points of the Explanatory Memoranda themselves. There are a large number of them; there is a question of whether all of them are useful or appropriate and whether some of them could be put together in a shorter form, because less than half of those-around 42%-actually end up being considered in detail by the Committee.

Therefore, the question is whether that is a good way of focusing in and whether it is possible, through discussions with the Clerks, to have effectively two levels of memoranda depending on the significance or importance of a particular measure, so that the Committee is better able to deploy and use resource appropriately. This ensures we get the right information to you, but if an issue is deemed to be not of such significance, a shorter form of memorandum may be provided.

Q67 Michael Connarty: I think the Minister should understand that we do that. We have three different types of papers that come here. We treat them similarly, but I cannot think of any way of shredding A briefs-the 42%-down to a smaller number. Somebody who takes this on takes it on fully, and the secret of doing any business in this Committee is to read all the papers.

James Brokenshire: I absolutely accept that, Mr Connarty. The question I am posing is that if half of them are then not referred to the Committee, is there scope in looking at the whole, macro number? If it is, for example, a Schengenbuilding measure that we do not participate in, the question is whether the format for that should be slightly shorter, given that it does not necessarily touch upon those direct scrutiny issues. It is more the form issue that I am touching upon, rather than suggesting that the Committee should not look at all of those papers. It should do. It is rather the form and format for that.

If we are touching on things like the agencies such as Europol, it may be that we would be interested in having a discussion with you on the papers that we receive that are not currently put forward with Explanatory Memoranda. If there is scope for that without adding to the overall burden, we could look sensibly and cohesively at what would be useful to better inform consideration of those agencies as well as the other dossiers that come through.

Q68 Michael Connarty: I am sure the Minister is wellmeaning in that, but remember that Parliament has been accused by the CBI of being asleep on the job when it comes to scrutinising European proposals. Since members of this Committee seem to be the only people doing so, do you think it might be useful if some of the other Select Committees actually engaged actively in taking seriously the legislation coming through? That might stop those kinds of accusations from the people who basically send us them.

James Brokenshire: I know the seriousness this Committee rightly attaches to this. On specific areas, some of the departmental Select Committees equally examine them. I am pleased to note in relation to the 2014 decision that Justice, Home Affairs and this Committee are working together around that, and that direct interest has been shown in that regard. There is certainly scope for greater engagement with the departmental Select Committees, and if that is able to aid more detailed and informed scrutiny, all the better.

Q69 Chair: Referring back, for a moment, to what Michael Connarty was saying regarding contributions made by outside bodies to our Select Committee, the CBI’s statement through Lord Digby Jones was quite extraordinary because, as I was able to demonstrate to him, the CBI has never ever given any evidence that we can identify to this Committee at any time. To suggest that we were somehow asleep on the job seemed rather absurd. Would you not agree that it would be helpful in your field if, as happens with some other Committees, the bodies that are concerned with matters within your remit also gave evidence to us more frequently so that we would hear what they had to say, as well as having our own views and those of departmental Select Committees?

James Brokenshire: Mr Chairman, if there are issues that you are seeing on unwillingness to participate in the scrutiny process, then I am certainly very happy to look at that, to take that away and see if there are further steps that we can take to inform the level of engagement and evidence that is provided to this Committee.

Chair: You have demonstrated an unerring prophecy in what you stated just now with regard to agencies, because Mr Kelvin Hopkins has some questions to ask about that.

Q70 Kelvin Hopkins: Minister, do you think there is scope for more formal parliamentary scrutiny of EU agencies active in the justice and home affairs field, such as Europol, Eurojust, Frontex and the European Asylum Support Office? If so, how do you envisage this working?

James Brokenshire: As I have already indicated, we are certainly open to considering the reports and information that we receive and whether there is a way in which we can report that into this Committee through some form of Explanatory Memorandum in a way that does not add to the Committee’s workload unmanageably. I know that we currently deposit Explanatory Memoranda on the Eurojust annual accounts and the budget. We have not been depositing Explanatory Memoranda on Europol itself, but we are open to considering and examining ways in which further Explanatory Memoranda may be submitted for consideration. This will be while exploring the approach I have already touched upon of looking at different forms of Explanatory Memoranda that are able to explain things in an easier way without necessarily overloading the workload with which you are already dealing.

Q71 Kelvin Hopkins: This Committee, a year or so ago, visited Poland and the headquarters of Frontex. It was very obvious to me that it is one area of the European Union that is underresourced. On everything else they spend too much, but Frontex is underresourced and does not have sufficient power. It is heavily constrained in what it can do and say, when, in fact, the borders of the European Union are not effectively protected even now, particularly the TurkeyGreece border. Is there not a role for Parliament and indeed Member State Governments to make sure we give stronger support to this?

James Brokenshire: That is interesting because it touches again on the balance between this Committee and the departmental Select Committees. I think I am right in saying that the Home Affairs Committee has conducted its own inquiries in relation to borders and that some members of the Home Affairs Committee have visited Greece and looked at the work of Frontex there. It perhaps again underlines the way in which scrutiny can be done and the co-ordination between the work of this Committee and departmental Select Committees to look at the broader work, including some of the agencies as well.

Q72 Kelvin Hopkins: What I am looking for is a Government to say, "Yes, we are going to get stuck in there and really make it work properly, and give Frontex and maybe some of the other bodies the strength to do the job they are designed for."

James Brokenshire: Certainly we do contribute to and support the work of Frontex, as you will be well aware, Mr Hopkins, from some of the debates we have already had on this subject. I suppose the question is the role of the departmental Select Committees and this Committee in challenging, scrutinising and putting forward recommendations in that regard, and the best way to do that on a continuing basis.

Q73 Nia Griffith: Continuing on the same theme, Minister, the Lisbon Treaty envisages a new role for national Parliaments. It actually talks about evaluating the activities of Eurojust and scrutinising the activities of Europol. Would you make a distinction between those different activities-i.e. evaluating the activity of Eurojust and scrutinising the activity of Europol-and are there any particular ways in which you would see things developing further, building on what you have just said?

James Brokenshire: It is interesting whether, as you say, there is this distinction between evaluating and examining. I suppose you could argue that there are nuances between the two, but ultimately it is scrutiny of both of those organisations. I suppose it does come back to the point about the provision of Explanatory Memoranda on some of these issues, and we would be pleased to take forward discussions with the Clerks to see if there is a way in which we can do that, so that this Committee, through Parliament, is able to examine the work of the agencies at a domestic level.

Some of that work is already taking place. As I have indicated, the Home Affairs Committee has looked at some of the issues and has taken a focus on Europol. I am sure it will continue to do so. It is not that there is not that examination and scrutiny. It is, following the Lisbon Treaty, whether there is a way that we are able to strengthen that further by providing more information to the Committee. I know, for example, that the Head of Europol, Rob Wainwright, has given evidence to the Home Affairs Committee on some of its inquiries on various different issues, not necessarily just specifically on Europol but also on things like human trafficking and Europol’s role in relation to that. I do not think that there is any reason why this Committee could not call representatives of Eurojust, Frontex or Europol to give evidence here.

Q74 Nia Griffith: What happens then? Suppose the Committees do spend some time looking at what these organisations are doing and suppose they do find things that they want to raise and make some recommendations, what would actually happen to that information? Where would it go? Would it just be a complete waste of time?

James Brokenshire: I do not think it would be a complete waste of time.

Q75 Nia Griffith: How would you challenge them?

James Brokenshire: It would certainly assist this Government in its examination of the work of those agencies. It would certainly aid in that process in the debates that we have and the discussions that we have with other Member States at Council meetings. I think that scrutiny of itself is a valid and important thing, not simply in holding those agencies to account domestically but also in informing Government in the representations that we may make in relation to those organisations. There is value in it.

Q76 Nia Griffith: Would you see that as being formalised, or would you see that more as something that you have in the back of your mind when negotiating or when you are talking about these things?

James Brokenshire: I suppose I would see it as more informal, but I think it is a question of how that develops, and this is an evolving process. We have obviously been evolving our parliamentary scrutiny around justice and home affairs measures, looking at ways in which that can be improved. Interest from this Committee in the activities of the agencies would be useful. It is then a question how that develops and how best we can use the report’s recommendations and information that is then generated.

Q77 Chair: Minister, I will move on to what is called the 2014 block optout. Just to put this in context and for the benefit of those watching or listening to this programme, it covers approximately 130 criminal law and policing measures adopted before the Lisbon Treaty entered into force on 1 December 2009 under the old intergovernmental third pillar arrangements. The UK exclusively is entitled to opt-out of these measures en masse at the latest by 31 May 2014. If it chooses to do so, it will cease to be bound by the measures on 1 December 2014. The Home Secretary wrote to assure us that neither the Prime Minister’s announcement in Brazil that the UK would exercise its block optout nor her own oral statement to the House of Commons on 15 October were "in any way intended to pre-empt any view the European Scrutiny Committee may wish to express on this matter". However, given the unequivocal words spoken by the Prime Minister in Brazil, is it not inconceivable that the Government would change its mind on this matter and decide not to exercise its block optout?

James Brokenshire: As the Europe Minister set out in the ministerial statement of January last year, we are committed to having a vote in both Houses of Parliament in relation to this very significant issue-the 2014 block optout. We absolutely remain committed to that vote, and before making a formal decision, we will have that vote in both Houses of Parliament. Clearly the Government, in actually taking a vote before both Houses, will be cognizant of the view that is expressed by Parliament in that regard. Yes, the Home Secretary and the Prime Minister have set out the Government’s current view in relation to the block opt-out, and that remains the case, but I think it is essential that we follow through on our commitment, as we will do, in relation to the votes before Parliament and that we will have regard to those votes.

Q78 Stephen Phillips: The Prime Minister said that the UK will exercise the block opt-out. In what circumstances could the Government possibly change its mind if Parliament or this Committee, or indeed the Lords Scrutiny Committee, recommended a different approach? The point is this, Minister: a decision has been taken without regard to the views of this Committee or the Scrutiny Committee in the other place or the views of Parliament. That is extraordinary, isn’t it?

James Brokenshire: It is right for the Government to express its current view in respect of a significant matter, so that scrutiny can be aided and considered. We have a Treaty right that was given to us by all of the other member states, and the ability to exercise this by May 2014.

Q79 Stephen Phillips: I do not want to interrupt you, but the Government also has an obligation to consult Parliament, doesn’t it, which it accepts?

James Brokenshire: Which it is doing and will do.

Q80 Stephen Phillips: And a decision was made before Parliament was consulted. Yes or no?

James Brokenshire: We have said clearly that we will take proper account of the views of Parliament. Yes, the Prime Minister and the Home Secretary have stated what the Government’s current view is in relation to this important matter, but we will listen to the views of Parliament. Parliament will have its votes in both Houses and we will take proper cognizance of that view.

Q81 Stephen Phillips: What does that mean?

James Brokenshire: It means that if Parliament votes for or against, the Government will consider the strong view that Parliament has given on this significant issue. That is what it means.

Q82 Stephen Phillips: This is just an example of the Government-and it is not just this Government; all Governments do it-riding roughshod over Parliament and over parliamentary scrutiny, and over the established procedures by which this Committee, the Committee in the Lords and Parliament itself are entitled to be consulted before a decision is taken. Is that right?

James Brokenshire: I do not accept that. I think the Government is seeking to engage properly with Parliament in relation to this important matter. We are compiling information and compiling our views in respect of each of the 133 measures. Indeed, some of those measures may well come forward through other proposals on repeal and replace. Some of the measures may drop out of the basket of the 133. Parliament, through the existing processes, will have detailed examination through the Title V mechanism in relation to those items that may subsequently come forward. We have committed very clearly to a vote in both Houses in respect of this matter, and no final decision will be taken unless and until that vote takes place.

Q83 Stephen Phillips: The Government has also committed very clearly-and this will be my final question on this-to exercising the block opt-out. You may have committed to consulting Parliament subsequent to having reached that decision, but through the Prime Minister’s speech in Brazil, the Government has also committed to exercising the block optout. Is that right?

James Brokenshire: Can I say this, Mr Phillips, to your question? Quite often this Committee challenges the Government for a view and says it cannot scrutinise properly unless it knows what the Government’s view is in its examination of a particular matter. There are parallels that could be drawn in relation to this case. The Government has set out its current view in respect of this matter. Its current view is that we should exercise the block optout, but then that is subject to further scrutiny and is subject to votes in Parliament. That is precisely the process that we are seeking to adopt here.

Stephen Phillips: Very well. I am sure we can all read the transcript and form our own views.

Q84 Mr Clappison: I just want to come back on the issue of the role of Parliament in this without regard to the merits of the issue, because I have more questions about that. On the question of what you said about Parliament, are you seriously saying that if Parliament takes a decision and has a vote that is contrary to what the Government wants to do, all the Government will do is be cognizant of it?

James Brokenshire: No, I am saying-

Mr Clappison: That is what you said, Minister. I will give you a chance to take that back, because it was a very serious undervaluation of Parliament.

James Brokenshire: If Parliament expresses a clear view, say, that we should not opt-out of the basket of the 133 measures-

Mr Clappison: Whatever view Parliament takes.

James Brokenshire: -or if it says that it would vote to go in, I would find it very difficult to see how the Government could take a contrary view to Parliament.

Mr Clappison: That is much better.

James Brokenshire: If I phrased it in a way that implied otherwise, I did not intend to, Mr Clappison.

Q85 Chair: I am glad to hear that, Mr Brokenshire, because the Prime Minister, being the Prime Minister, made a categorical statement in Brazil that the UK will exercise its block optout. If I may suggest so, there is a problem here for you, which is this: it follows that, on any vote, the Whips would be put on to ensure that what the Prime Minister said was not contradicted by the vote. Can I offer you a suggestion, which you might like to take back to the higher echelons of Government, which is that, in those circumstances, given the complete contradiction between parliamentary practice and our constitutional right as a Parliament to take a position on a matter irrespective of whether or not the Prime Minister has made a categorical statement, you resolve this by allowing the House to perhaps have a free vote?

James Brokenshire: Mr Cash, I certainly hear your point. That is a matter for the usual channels, I am sure, to take into account in the normal way.

Stephen Phillips: I am pretty sure you would win a vote on the block optout anyway.

Q86 Chair: You may well, but the important point is a point of principle, which is who decides what the policy should be. Is it going to be the Prime Minister or is it going to be Parliament? Of course, we in this Committee will be quite clear it has to be Parliament, although Mr Phillips might be right and you would actually end up with a vote in line with what the Prime Minister said. You take my point.

James Brokenshire: Ultimately it will be for Parliament to form its view.

Q87 Chair: The Home Secretary’s oral statement to the House on 15 October invited this Committee, Home Affairs and Justice-the three Committees in the Commons-and the EU Select Committee in the Lords to submit views on "the package that the United Kingdom should seek to apply to rejoin". Does this not reinforce the view that the decision of principle, namely that the United Kingdom will exercise that block opt-out, which the Prime Minister has said we will, has in fact been taken before any of the Committees have had an opportunity to gather evidence and formulate views on the block optout?

James Brokenshire: No, because we will not take a formal decision until such time as the votes have taken place. It is rather to help consider the detail of the 133 measures that are subject to the block opt-out decision and to frame the focus of that. If there were to be a block optout, then there would need to be consideration of the matters that this country would opt back into through the different process. I do not see that as in any way prejudging the decision that Parliament would take on the inprinciple decision; it is rather to look at and scrutinise that option and arrangement, so that discussion and debate is as informed as it can be.

Q88 Chair: We talk about a block optout; we talk about the whole question of 130 measures and all the rest of it. Do you not accept that, when you look at those 130 measures and then consider the impact that they have on the lives of the people who are the electors of this country, the whole question of the manner in which it is scrutinised-the issue of whether or not the Prime Minister might preempt a parliamentary decision, for example-is not just an arcane issue that happens to crop up in the context of scrutiny or procedure? It actually affects people in their daily lives, and that is precisely why it is so important that Parliament comes to its decisions and it is not just a matter of a fiat from the Prime Minister from Brazil.

James Brokenshire: It will be for Parliament to come to its decision in the vote that is taken on the block opt-out. It is absolutely right and proper that Parliament should have its say in respect of these matters. That is what we have committed to as part of the statement that the Minister for Europe made. We absolutely understand the significance and importance of this matter, and that is why it will be put to a vote in both Houses.

Can I thank you, Mr Chairman, for the letter that you have sent, with your colleagues in the Home Affairs and Justice Committees as well, to set out your thoughts on what the form of that might be? Certainly we will be giving that full and proper consideration in finalising and drawing up the arrangements for that vote.

Chair: Good. Thank you very much for that.

Q89 Mr Clappison: As we have said before, we need to know what it is exactly we are scrutinising if we are going to scrutinise it properly, no more so than here. As we have said, the Government has opted to have a block opt-out, but it has held open the possibility of opting back into the measures opted out of en bloc at some later date. That is one of the things that we need to have more information on before we can have any meaningful vote on the block optout, because it would be ridiculous to vote for an optout and then find that it was the Government’s intention to opt back in later on.

The Chairmen of this Committee and the Home Affairs and Justice Committees have written to the Home Secretary and the Secretary of State for Justice expressing their disappointment at the dearth of information provided so far by the Government. The Home Secretary’s letter states that the Government has completed a "large amount of the analysis of the 130 measures subject to the block optout". Can you confirm that the Government will share its preliminary analysis of each measure with us, much as it would do when preparing Explanatory Memoranda on new draft legislation? In a way, this is new draft legislation, because it is becoming part of binding EU law, within the whole framework of the EU treaties, rather than just being intergovernmental co-operation.

James Brokenshire: I absolutely understand the need for Government to provide this Committee and the other Committees with further information in relation to the various different items that it would consider opting back into, to properly inform the debate. I absolutely understand and recognise the inprinciple point here. There is a lot of work that has been done already in examining the 133 measures. That work is still ongoing. It is detailed; it is complex. We want to share information with you that is as finalised as we can make it, so it properly informs the decision that Parliament will need to take and indeed the scrutiny that this Committee rightly will need to follow through.

Q90 Mr Clappison: I do not know if you are able to answer this or not. Certainly Mr Bowie said he was in charge of this process. If he would like to come in, that is in order, is it not, Mr Chairman? Could he give us some idea of when exactly it might be that you complete this work?

James Brokenshire: Can I just respond by saying that we do intend to publish a full impact assessment of the final package of measures that the UK intends to apply to rejoin? It is important that we do that.

Q91 Mr Clappison: Could Mr Bowie tell us exactly what they are? It would be very interesting for us to hear from him exactly what work is included.

James Brokenshire: Of course, and I will let Mr Bowie respond. At this stage, I do not think we are in a position to give a formal deadline or timetable to you, but I recognise that we need to give further information to this Committee and to the other Committees to properly inform and aid the scrutiny.

Q92 Mr Clappison: That is very helpful in its own way. Perhaps Mr Bowie could tell us exactly what he has been doing.

Kenny Bowie: There has been a lot of analysis on this that has been ongoing. We have been consulting with operational partners, the Devolved Administrations and others in trying to bring this analysis together. A lot of it is coming together, and we would hope to be in a position to share as much as is possible with you, as soon as that is practical.

Q93 Mr Clappison: Is your department looking at measures that you can opt back into or not?

Kenny Bowie: It is looking at the full range of options available to the Government in that regard.

Q94 Mr Clappison: It only has two options. It either opts-out or opts-in.

Kenny Bowie: Yes.

Q95 Mr Clappison: Have you any preliminary thoughts on that you can share with us?

Kenny Bowie: I think that is more a question for the Minister.

Q96 Mr Clappison: Perhaps the Minister could tell us.

James Brokenshire: Those discussions are ongoing across Government. Again, it is a question of having a crossgovernmental view in respect of each of the relevant measures. What we have said very clearly is that there is a weighingup of what is in the national interest, and we are examining where those measures aid public safety and security, whether practical co-operation is underpinned by those measures and whether there will be a detrimental impact on such co-operation if pursued via the mechanisms. There are also other factors, such as whether there are civil liberty issues, or indeed the justice implication of this, because the key factor on the 2014 decision is that we become subject to the European Court of Justice in relation to the basket of measures from December 2014.

Q97 Mr Clappison: If I may interrupt, that is the key point. In fact, actually it was the previous Government, to give it credit, that negotiated this block optout, because it did not want to go into the justice and home affairs chapter of the Treaty of Lisbon. That was given as an important justification for the then Government’s course. If your Coalition Government then proposes to go into that, you are going further than the previous Government went in terms of European integration.

James Brokenshire: That is why ECJ jurisdiction and the implications of some form of preliminary ruling or indeed infraction proceedings arising from these measures are some of the key elements that we are examining as part of the analysis. As I am sure you will appreciate, this is a complex, multifaceted piece of work. It is not simply the Home Office; it covers a number of different Departments that have an interest in these preLisbon matters, which is why it is timely and detailed, and why we want to ensure that the information we provide to this Committee is as fully formed as we are able to achieve.

Q98 Chair: To cut to the chase on this, I come back to what I have said several times in these proceedings with you: this affects the daily lives of the people in this country. Actually, we believe very strongly that we need to have-as Mr Clappison was indicating-a preliminary analysis, because we cannot even begin our work on it until we get it. I am saying to you: will you please make sure we do get it, as a preliminary analysis? Furthermore, bear in mind that there are 133 of these directives or provisions, almost all of which would be the equivalent of an Act of Parliament that would have to go through both Houses. For practical purposes, we really need to have this preliminary analysis, because we cannot get on with our work otherwise. We are quite sure in our minds that we really need to have that information. Could you please take that on board and give it to us?

James Brokenshire: I absolutely hear the point that you are quite fairly making in relation to the information to assist this Committee and its examination. Indeed, I recognise that with the number of measures that we have here, what we as Government are able to do to assist in the analysis and the breakingdown of the different points in respect of a particular measure-what it is intended to achieve and the different components to it. I certainly will take away the clear message that you have given in your letter and the clear message that this Committee has given to me today.

Q99 Chair: One last thought on this: the fact is that there is a labyrinth of law out there. Listening to what Mr Bowie and you say, we appreciate that it is complex. As you said, it is multifaceted. I come back to the point, and I am sure the Committee would agree, that this is something that also, because of its importance, needs to be got right,as long as you have that message and its relevance to what’s going on. It is not just somewhere out there called Europe; it is actually what is happening to British citizens as a result of legislation that is being put together by a lot of people whom we may not necessarily agree with. As long as you get that message and its relevance to what is going on, that would be helpful too.

James Brokenshire: I certainly acknowledge the significance of a number of the measures that are contained within the list of the 133, the interest that Parliament has in a number of those measures and the impact that they have on co-ordination, co-operation, law enforcement and other public safety issues. This is why the Government is giving this matter very detailed consideration. Equally, I understand the need to provide detailed information to this Committee and the other Committees to ensure that the scrutiny that you attach to this is fully formed.

Q100 Chris Heaton-Harris: Firstly, can I say I was thoroughly excited by the Prime Minister’s announcement in Brazil. I think it is a solidly sensible thing to do. I have written to him, you and a whole host of other people trying to ensure the UK goes down this particular route. Could you just remind me whether it is 133 measures that we are now talking about? Didn’t we opt into one recently? I do not know what the exact figure is.

James Brokenshire: The list constantly changes, and that is not because of some desire to take things in for the sake of it. The list changes for various reasons, in part because new measures come through. As we decide to opt in and use our rights under the new legal base, that can take matters out of the basket. I am told that the current number is now 131, and a further measure on victims that falls within the justice arena may also come from that list. It is therefore important to underline the scrutiny that this Committee and the House makes in relation to the measures that are what is known as repeal and replace, in the technical jargon, and therefore have the effect of being a new measure and equally taking a measure out of the existing basket.

Q101 Chris Heaton-Harris: I think that one on victims was the Council Framework Decision 2001/220/JHA. This is a very moveable feast. The Home Secretary did say in her statement to the House that some of these things are now entirely defunct. There is the Council Joint Action 1996/747/JHA, which targeted organised crime and established a directory of national experts combating various forms of crime, but that directory is essentially online now, so that is one that is completely defunct. There is Council Decision 2000/261/JHA, which is a standard questionnaire about alerts about counterfeit documents, which has been taken over by some software. I think we have requested an Explanatory Memorandum on which of the 131 or 130 are now defunct or being taken out. We are gradually whittling down to the core big arguments of European Arrest Warrants and some of the other big deals, which we can properly spend quality time looking at on this Committee.

James Brokenshire: I recognise that. Certainly part of the ongoing work is doing the analysis on which measures could be considered to be defunct. I certainly do recognise the request for further information. Indeed, on the other side, I know that we have provided in response to a question those items that we have not fully implemented. Therefore, on the question of implementation and infraction proceedings that might follow in respect of those measures-if they are not fully implemented by December 2014-equally this Committee is able to understand which of those measures there are to aid its consideration. The Secretary of State for Justice and I have answered parliamentary questions in that regard. If it would be helpful to this Committee to provide a list of those measures again or as well, I am sure that we would be very happy to do so.

Q102 Chris Kelly: Minister, you have already alluded to this, but can I press you for your best guesstimate of the number of measures subject to the block optout that the Government is actively considering opting back into, although we do appreciate that no final decisions have been taken yet?

James Brokenshire: I am afraid that we have the 130odd measures that we have in the list at the moment, and we have alluded to a couple of those measures that we believe are defunct, but at this stage I am not able to give you an indication as to which measures we are currently considering opting back into. That is part of the process that we are currently engaged in, across Government and across the Coalition, to come to the conclusions on those items. Clearly, we recognise the need for further information to be provided to this Committee and others at the earliest opportunity. That is what we are focused on.

Q103 Chris Kelly: Might it be around a quarter or a half?

James Brokenshire: I am afraid I am not able to provide you with that sort of indication at the moment. All I can say is that we will only be opting into those matters that we judge to be in the national interest based on those factors that I have already spoken about. The detailed consideration of each of those matters will enable us to judge which of those measures actually fulfils those requirements.

Chair: References to the national interest remind me of Johnson’s reference to patriotism being the refuge of the scoundrel. I am always slightly worried when I hear people invoking the national interest. What it often means is what Government ministers decide they want to do. Maybe I could pass on, at that point, to Henry Smith.

Q104 Henry Smith: Thank you very much indeed. Minister, at what stage do you think there will be an estimate of the cost of the UK exercising its block optout of justice and home affairs measures?

James Brokenshire: As you may be aware, one of the discussions that we have started is on the technical and legal issues surrounding the exercise of the block optout, should that be the formal final decision that is taken. It is possible for conditions to be applied. The Commission may assess whether or not conditions for participation may need to be met. Given that we already participate in a number of those measures, we regard that as quite a high hurdle. Equally, the Council may adopt a decision determining that the UK shall bear the direct financial costs, if any, necessarily and unavoidably incurred as a result of the cessation of its partition in the third pillar acts. Now, that is ongoing discussion; there is a lot of detailed work that clearly will follow through in respect of that. What I can say, as I think I have already indicated, is that we do intend to provide a full impact assessment of those measures that the UK intends to apply to rejoin. We will publish that, and that will set out a great deal of the analysis and assessment in respect of that.

Q105 Henry Smith: Can you give a general figure at this moment in time, and also what is your estimate of savings?

James Brokenshire: Unfortunately, I am not able to give an estimate at this time. That is very much part of the detailed work. There are issues that are being considered on the cost of complying with measures. If we were not to comply fully with certain measures, there is an infraction risk and a cost attached to that. We are analysing all of the different options that are there. Unfortunately, I am not at this stage able to give you that indication.

Q106 Chair: Is there a tipping point, do you think, in terms of opting back in, beyond which exercising the block optout becomes little more than a symbolic exercise? I am a little troubled about the symbolism of all this.

James Brokenshire: This country has been given a right, under the treaties, to block optout or to stay subject to all of the existing measures. The arrangements that were struck were such that we have a binary choice of opting out or staying subject. I suppose I see it in that context,having been given that right, it is about the consideration of the exercise of that benefit, subject to the view of Parliament. There is rather a detailed examination of each of the measures to judge what is in the best interests of this country, taking into account the potential benefits that may be afforded in respect of operational policing and dealing with transnational crime that crosses borders. Therefore, I rather see it as a means of analysing those measures and judging which of those measures remain relevant and appropriate in order to best safeguard the interests of this country. I do not view it as a numbers game; I view it much more on the substantive merits of a particular measure, and I am considering it in that way.

Chair: I am very glad that you have put all this emphasis on Parliament, because after all it is on behalf of Parliament that we exercise our functions under Standing Orders, subject to the decision that is subsequently taken on a vote by the House of Commons. Of course, there is this thing called the whipping operation, so that whatever we may think about it, after we have discharged our functions, the next question is what happens through the Whips Office on what the Prime Minister may wish to propose. On that subject, I would be grateful if you would ask the last question, James.

Q107 Mr Clappison: You have spoken a lot, Minister, about the national interest, but I will just put this to you: there is a national interest in having our home affairs and justice legislation made in this country, rather than the European Union.

James Brokenshire: That is why I think, whatever I may think of the last Government, reserving the rights under the block opt-out is important. The issue of where our criminal justice system is generated and created matters. When we have a new measure that is coming before the Government on whether we should opt-in or opt-out, maintaining the integrity of our criminal justice system is a key factor in our consideration of whether we should be subject to a measure or not.

Q108 Mr Clappison: You will remember that the last Government gave staying out or having a block opt-out of the home affairs chapter, and not entering into the home affairs chapter of the Treaty of Lisbon, as the key reason why the Treaty of Lisbon was different from the constitutional treaty, and said that a referendum was not therefore required. That was the justification given by the last Government, so we got all of the Treaty of Lisbon, except for the justice and home affairs chapter, under the last Government. Here comes the Coalition Government and we are going to get it anyway.

James Brokenshire: I think I would rather say that we have given our present indication as to the use of the block optout, subject to scrutiny and to the vote in Parliament. I find it quite interesting that the Government is being criticised by the Opposition for even considering exercising the block optout that they themselves had put in place. If you put it in place, then it must have been contemplated that it would be used. That is what we are considering. We are considering carefully the individual measures that are subject to that block optout to judge whether it is appropriate to renegotiate to opt back into certain measures, but it is important to judge very carefully what those measures are, which is why the work is engaged in the way that it is, and recognising the importance of our criminal justice system and the integrity of that, not just now but in the future as well.

Q109 Mr Clappison: You mentioned that there was going to be a full impact assessment of those measures that the Government chose to stay in. Will that be given to us in good time for the debate on the block opt-out?

James Brokenshire: Yes, I think it would need to be, because again it is about the provision of information to be able to inform the debate properly. It comes back to some of the points of principle that we were discussing at the outset of this Committee session. I know that, for example, the Lords Committee is conducting its own separate inquiry in relation to the block optout decision. We would want that inquiry to run its course before the block optout vote is taken.

Q110 Mr Clappison: I am not criticising the block optout decision. I am just expressing the wish that it was a block optout. The Europe Minister’s written ministerial statement of 20 January 2011 promises that there will be a vote in both Houses before the Government makes a formal decision on whether it wishes to exercise the block optout. We have suggested that this should be a twofold process, involving at least a full day’s debate: first a vote on an amendable Government motion supporting its decision to exercise the block optout; then a vote or votes on an amendable Government motion or motions supporting its decision to opt back into individual preLisbon policing and criminal law measures. Do you agree that the vote should cover not only the decision of principle on the block optout but also each individual measure that the Government proposes to opt back into?

James Brokenshire: As I have said to the Chairman, we very much welcome the letter that we have received from this Committee and the other two Committees, setting out the proposal that you have just read out, Mr Clappison. All I can say at this stage is that we will consider that proposal very carefully. That is subject to input from other members of the Government, so that we are able to respond to that suggestion that has been made. All I can say at this stage is that we will absolutely consider that proposal very carefully.

Q111 Mr Clappison: When you have that consideration, could you set that into the context of what the Prime Minister rightly told us about his European Union Bill -that he was trying to give Parliament and the people a say before powers are given to Europe?

James Brokenshire: We will certainly consider the comments that have been made in this Committee, as well as the letter itself, in considering our response to it. I note the point that you have made very carefully.

Q112 Chair: Finally Minister, you will have noticed that, in this European Scrutiny Committee, we put a great deal of store ultimately and fundamentally on Parliament being both protected and given the opportunity to investigate and hold Ministers to account. I trust that, as a result of the discussions that we have had this afternoon, you will be glad that we are holding this inquiry into our own European scrutiny. I would like you to finally comment on whether or not you think that European scrutiny is best done by parliamentarians who are determined to maintain the principles that you have witnessed during these proceedings.

James Brokenshire: I absolutely believe in robust and challenging scrutiny. Therefore, having parliamentarians who are well informed, knowledgeable and have that expertise is something that I value and think the House should value. Therefore, I do appreciate the inquiry that you are undertaking on this important matter, so that we can ensure that scrutiny gets even better. Yes, it may get more challenging for me, as a Minister, as a consequence of that, but it is important that Parliament does undertake that work. These are important issues, and it is right and proper that this Committee and Parliament more generally should be enquiring further in relation to matters that are coming from dossiers and proposals from Brussels, the Commission and the Council. I very much welcome that.

Chair: Thank you very much indeed.

Prepared 27th November 2013