UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 683 i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

European Scrutiny Committee

The UK’s block opt-out of pre-Lisbon Criminal Law and Policing Measures

Thursday 10 October 2013

Rt Hon Theresa May MP and Rt Hon Chris Grayling MP

Evidence heard in Public Questions 1 - 86

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the European Scrutiny Committee

on Thursday 10 October 2013

Members present:

Mr William Cash (Chair)

Andrew Bingham

Mr James Clappison

Michael Connarty

Geraint Davies

Chris Heaton-Harris

Kelvin Hopkins

Stephen Phillips

Jacob Rees-Mogg

________________

Examination of Witnesses

Witnesses: Rt Hon Theresa May MP, Home Secretary and Rt Hon Chris Grayling MP, Lord Chancellor and Secretary of State for Justice, gave evidence.

Q1 Chair: Welcome, both Home Secretary and Justice Secretary, to the meeting this morning. I assume that you will have, more or less, decided the areas that you most want to cover yourselves, so, when I address a question relating to the Government, I think it a matter for each of you to decide who will deal with it. In their response to the House of Lords report on the UK 2014 block optout decision, the Government confirmed that they had "conducted initial analysis of all the measures subject to the 2014 decision" before the Home Secretary’s initial statement to the House last October. Why were you unwilling to make this initial analysis available to Parliament, so that we could have begun our process of scrutiny sooner?

Mrs May: Chairman, the point was that we were waiting to have the list of those measures that we wish to opt back into, so we were able to present to Parliament the position that the Government was taking on this issue. The work has been ongoing for some time and the degree of analysis has become greater over time. When we said it was a very initial analysis, that is what it was; that helped to inform the initial considerations that Government had, but we did not, at that stage, have the full package of measures. We did not have that full package of measures that we wished to opt back into until earlier this year.

Q2 Chair: You are effectively saying that you were not unwilling; you just were not in a position to do so. Is that right?

Mrs May: I think we felt that it was better to bring forward the description of the various measures when we had that understanding of what measures we wanted to put before Parliament.

Q3 Chair: You were really taking a cockshy at the situation before the matter had been properly examined.

Mrs May: No, it is not a cockshy.

Michael Connarty: Spin before substance, Chairman.

Chris Grayling: You have to remember, Chairman, that there are really three stages to this. The Government itself had to reach a collective position. We then needed to discuss that collective position with Parliament, and only then would we hold detailed discussions and negotiations with the European Commission. That sequence of events is one that is pretty unavoidable.

We have done our best to do two things. One is to take an early decision on the principle of the optout, because we think that is in the national interest; it gives everyone time to scrutinise the detail of what we might opt back into and for us to have negotiations with the Commission. Inevitably, there was an assessment of the measures in order for the Government to reach a collective view on what we were going to opt back into and what we were not. Once we had reached that collective decision, we came to Parliament very promptly and set out the list of measures that we had identified, which we had collectively agreed we would put to Parliament as our provisional list to opt back into. We have now opened it up to discussion and scrutiny for this Committee, its counterparts in the House of Lords and, indeed, Parliament as a whole to consider.

Q4 Chair: Can you tell us when the draft Explanatory Memoranda were first submitted to Ministers for approval?

Mrs May: I cannot recall what the date was in terms of the draft Explanatory Memoranda. The Explanatory Memoranda would have been produced, and completed when we had the list of measures that we wished to put before Parliament. I was simply going to say I am interested in the questions that you are asking, Chairman, because throughout this what we have been trying to do is to ensure that Government was looking sensibly at the various measures that are subject to the optout or optin decision; that we produce those measures having discussed the impacts of them with a variety of relevant parties; and that when we put the package of measures to Parliament, we were able to put that together with an Explanatory Memorandum in relation to each of the measures concerned.

Chris Grayling: I was going to say, Mr Cash, I think it might be helpful to give the Committee a little bit of a sense of the philosophical approach we took to this as well, because I think that is quite important in understanding the process we have been through.

Q5 Michael Connarty: Why? Why do you want to move to philosophy?

Chris Grayling: Let me explain, if I may, Mr Connarty, and then I think you will understand. We took a view very early on that we have a need to participate in measures that are necessary for international crimefighting-tackling the problem of serious and organised crime, the terrorist threat and so forth-but we did not want to weaken our defences against those issues. At the same time, we did not wish to participate in measures that take us down the road towards creating a European justice system. It is important to understand that as a starting point in the approach that we took. In part, when I in my Department went through the measures that are in the justice area and looked at what the implications of each of them were, I had that consideration in mind as well.

It was not simply a question of: let’s produce an impact assessment; let’s understand the impact of the individual measure. There was, as I say, Mr Connarty, a philosophical point. The last Government, in my view very sensibly, took a view that Britain would not wish to become part of a Europeanised justice system. The reason that the Labour Government, as far as I can understand, decided to negotiate the optout to give us the freedom both to retrospectively opt out, but also to opt out of measures in the future, was that it recognised-and it is something that I agree with-that our legal and justice system is distinctive. It is one of the best in the world and we would not wish to Europeanise it.

If you look at the steps that we have taken in this, the broad thrust of how we have allocated the different measures is we have almost entirely-it is never quite an exact science-accepted the need to be part of international partnerships in fighting crime. That is in the interests of our citizens-to protect them against the risk of serious and organised crime and terrorism. However, we are trying to resist moves to take us down to having European criminal penalties and European systems of law. That was a very telling factor in our decision-making process. We went through all this measure by measure to understand what we should be part of and what we should not.

Q6 Michael Connarty: I would say that was more pragmatic than philosophical, but coming back to process, you have civil servants with you-I will come back to this in a question much later-and surely your civil servants preparing you for this meeting would tell you how you should respond to each of the 133 decisions that you had to make on the things that we could opt out of and opt back into. Therefore, papers must have been prepared, presumably, at some time, and given to you to make those decisions. I think what the Chair is asking is when you had those papers available. The question in all this is: why did you not make them available through the scrutiny process? You will have a date, and maybe the civil servants know what date they prepared this and gave you the papers to make these decisions.

Chris Grayling: What we certainly did in the Ministry of Justice, back in the early spring, was to go through all the measures in the justice area line by line. We did not do it through a submission put to me to take away, read at night and tick the box. We actually had some quite detailed discussions about the implications of each one, the consequences of each one and the consequences of offering to the European Court of Justice jurisdiction over those measures. I took a decision on what I viewed to be the things that were in our national interest, based on those discussions-based, indeed, on the discussions I had with the team that has studied these quite closely. That is how we did it.

Mrs May: It is an iterative process. There was no early stage where it was suddenly, "This is the absolute decision," and a decision was taken ages ago and nobody was told about it. There was an iterative process of looking at the various measures, considering the impact of the various measures and assessing them. There were some, mainly in the Home Affairs side, very practical issues, so we were talking with law enforcement, for example, about the impact. There was that process and obviously discussions across Government in relation to the measures. Through that iterative process, we came to the point where we had the list of 35 measures that we chose to opt back into to put to Parliament.

Q7 Chair: Could I remind you, Home Secretary, that both of you wrote a letter dated 14 December 2012 to me, Keith Vaz, as Chairman of the Home Affairs Committee, and Alan Beith, Chair of the Justice Select Committee and also Chairman of the Liaison Committee? In that letter you stated, and I am now quoting directly, "We would hope to be in a position to provide you with the first of the Explanatory Memoranda by early January and to have provided all necessary Explanatory Memoranda by the middle of February." None appeared until 9 July 2013, the date at which you, Home Secretary, announced to Parliament that the Government intended to exercise the block optout and to seek to rejoin 35 measures. All these were published in Command Paper 8671. You would not dispute that that is the position as it evolved?

Mrs May: No, I am not disputing that. We did indeed hope that we would be able to provide the Explanatory Memoranda at an earlier stage. It was not until a stage later this year that we were in the position of having the list of measures and being able to set out, very clearly, what the Government’s position was on this issue. I apologised to the Committee for the fact that we had hoped to be able to do it earlier. We were not able to do it at that stage, and did it at that stage that you know.

Q8 Chair: Was the delay in the publication of these Explanatory Memoranda attributable either to officials or to Ministers? Can you enlighten us on that?

Mrs May: It was attributable to the fact that we were still considering, within Departments and across Government, what the Government’s position on the various measures should be.

Q9 Jacob Rees-Mogg: Home Secretary, you said to the House of Lords that an initial analysis of all measures subject to the 2014 decision had been conducted before your statement of 15 October 2012. How many measures, under the initial assessment, changed as to whether they were going to be opted back into or not, between then and the statement on 9 July 2013?

Mrs May: Throughout the iterative process, there were measures that were being considered as being in or out of lists, and measures where there were indications from the Commission, and indeed our lawyers, that maybe we would need to opt back into certain measures if we opted into others. Again, it is a sort of iterative process. There was not a list at that point in time, and then suddenly there was another list with a different set of measures. It has been an ongoing process throughout. The initial analysis was just that: an initial look at the sorts of measures, which gave us a feel for the measures, but not a definitive list.

Q10 Jacob Rees-Mogg: The initial assessment must have given you an idea of which ones you were going to opt back into. It would be very helpful to know how many of those changed between then and your final statement.

Mrs May: What we did not have at an earlier stage was a definitive list of what we wanted to opt back into or opt back out of. I am trying to explain. Sorry; I have used the word "iterative" on a number of occasions, but it is an ongoing process. If I may, to think that you can say how many were in the initial analysis and how many were in the last-the number will have changed throughout the process.

Q11 Jacob Rees-Mogg: The iterative process is fine, but you can have an iterative process and still end up where you started, and that is what would be helpful: to try to find out whether that is what happened. If that is what happened, it would have been easier to tell the House of Commons what you were doing earlier.

Mrs May: The point of starting the process at that point was that the initial analysis did not lead to a definitive list. It gave Government an understanding of the balance of measures on the list and, therefore, whether to opt out. That was the first decision we obviously had to look at.

Q12 Jacob Rees-Mogg: It cannot be definitive until it is finally announced-that is obvious-but at the initial stage and to the final stage, how many changed, from your initial expectation analysis to the final announcement, if any?

Chris Grayling: It was not really quite like that. Let me give you a very practical example. As you know, I was appointed in September of 2012. Over the course of the following couple of months, we started to look at the list. The Home Secretary made her statement to the House about six to eight weeks later. If I take an example, it was very obvious to me, at moment one, that we would want to be part of the Prisoner Transfer Agreement. When I first looked through the measures and we first had our discussion, I do not think there had ever been any question at all, in our Department, that we would come back and recommend to the House that we would pass the Prisoner Transfer Agreement. We have too many foreign national prisoners in our prisons; I would like to send some of them back.

In other areas, we have taken much more time to look at some of the other measures, and the European Supervision Order is a case in point. I would not have been able to come to you last October and say, "I have decided, in my Department, that I think being part of the European Supervision Order is a good idea." At that point, it was something that we were very much still considering, looking at and doing more work on. There was no point at which we started with a fixed list of 25 or whatever, and it grew to 35 or went down to 15. It was a process of discussion-of analysis within our own Departments and crossGovernment discussion, because this has to be a collective agreement.

My point at the start was that we have been through or are going through three phases. The first is to reach a point of collective agreement within Government, then bring that collective agreement to the House and then take all of our collective agreement to the Commission. At the start, there were some things I was pretty certain that we would do, some things I was not sure we would do and some things I was pretty clear we would not do. It is not a question of there being a list with a certain number last October that we then changed. There were things that were clear and things that were not yet clear. What we did over the following months was to establish whether we were satisfied, both individually as Secretaries of State and collectively across Government, we would recommended those things to Parliament or not.

Q13 Jacob Rees-Mogg: If there were some things that were definitive a year ago, it would have been very easy to tell the House of Commons that those were already decided, like the prisoner transfer scheme.

Chris Grayling: Ultimately, we cannot do that until we have reached collective agreement across Government, so my recommendation to all of my colleagues, from the start, was we should be a part of the Prisoner Transfer Agreement. It has never been a matter for debate. Everybody who I have spoken to agrees that that is a sensible thing for us to do.

Q14 Chair: That of course is a coalition Government, so you had to take into account the views of the Liberal Democrat party.

Chris Grayling: Absolutely. I can put that on the table at the start, but to say in isolation, "Here’s one. We’ll come back to you later with the rest," does not seem to make sense. The Council wants to understand the full list. It took us some time to complete our own analysis and reach our own views about what we wanted to be part of, and then go through the inevitable discussions in a coalition government on what our collective view was.

Q15 Michael Connarty: When the process finished and the Command Paper was produced, by then, I presume, there was not just a collection of bubbles in the air with your thoughts in them-both your and your civil servants’ thoughts. There must have been at that time some writtendown conclusions and assessments of all the things you are not going to opt into, but none of that was made available. What I am trying to get to is, it does sound to me like you have said there were lots of chats in the Departments and lots of, maybe, little notes made on the back of fag packets, but presumably there was in fact a proper Civil Service analysis. If you let your civil servants answer, I might like to ask them, because they are the people responsible for producing these minutes, recommendations and analysis. Was there none available, so that, in July, what we got was your Command Paper, but nothing else that we could scrutinise? I want to get to the bottom of this process that has left Parliament with nothing but basically the political spin and a document based on spin, not on deep analysis.

Mrs May: Mr Connarty, we have provided an Explanatory Memorandum for Parliament. It is perfectly open to Parliament, as indeed the House of Lords Committee did, to take their own look at these measures and make their own assessment of the measures. Of course there were civil servants producing analysis for us. Throughout that was a backandforth process, as it always is in relation to the decisions that we took. We gave Parliament the Explanatory Memorandum at the point at which the Government had decided the list of the 35 measures that it wished to opt back into, so we could give Parliament a full picture of what the Government’s position was, backed up by the Explanatory Memoranda.

Q16 Chair: Are you able to tell us the influence that the Liberal Democrats may have had in relation to the coalition Government?

Mrs May: We discuss across Government, as on every issue, so that the position that is brought forward is a coalitionagreed position.

Chair: Stephen Phillips, the next question; this is on the question of Explanatory Memoranda.

Q17 Stephen Phillips: I just want to wrap up the points that have been discussed so far. Is it fair to say that it took longer than either of you would have wished or thought it would to reach a position where you could put documents before this Committee and the House?

Chris Grayling: Yes.

Stephen Phillips: And you are sorry for that.

Chris Grayling: Absolutely, but it is the nature of coalition governments that you have to reach collective agreements, and sometimes collective agreement takes longer to reach than you might initially expect.

Q18 Stephen Phillips: I think the difficulty is the letter that was originally written to the three Chairmen of the Select Committees, which created expectations that were unrealistic. Do agree with that?

Mrs May: I have already apologised to the Committee for the fact that we indicated that-

Stephen Phillips: That seems to be the source of the problem; can we agree on that?

Mrs May: I am not able to say myself what is the source of the Committee’s concerns. If that is the source of the Committee’s concerns, then, as I have said, we had hoped that we would be able to bring the Explanatory Memorandum forward at an earlier date. We were not able to do so; the discussions took longer than we had, at an earlier stage, hoped that they might take. That is why we ended up in a situation where the Explanatory Memoranda were produced in July, when the list was available.

Q19 Stephen Phillips: Thank you very much. Right, let’s see if I can create some more common ground. Do you both accept that the reasons why the Government has concluded that participation in a particular measure is in the national interest should be both transparent and open to scrutiny by Parliament?

Chris Grayling: Yes.

Mrs May: Yes. We have set out the basis on which we took the decisions.

Q20 Stephen Phillips: I want to give you a specific example in the Explanatory Memoranda. If you look at the Framework Decision on the recognition and execution of orders freezing property or evidence-it is number 48, which you will find on page 63 of the Command Paper-this is, I am assuming, a Home Office measure. Is it? I am not going to ask you to read the commentary. Take it from me, it tells us a number of things. It tells us that the measure has been only partially implemented in the United Kingdom. It tells us that there is an implementation gap across the EU. It tells us that all member states appear to have alternative processes for freezing evidence or property. It tells us that the UK has issued no requests under the Framework Decision, and has itself only received four since 2009. It says that the Framework Decision will be replaced, in part, by the European Investigation Order, which the UK has already opted into.

That is all it tells us, and this is supposed to be the full Explanatory Memorandum, giving details of the basis upon which the Government has reached its decision. You have both agreed that that basis is important, so that the decision can be properly scrutinised. On what conceivable basis is this Committee, or indeed any Member of the House of Commons, able to conclude that it is in the UK’s national interest to continue to participate in this measure? The information is simply not there, Home Secretary.

Mrs May: We have explained the background as to what we have looked at-the principles that we followed in relation to the measures. This particular measure is, as I understand it, the only EU measure regarding the freezing of property. This is an important tool that we believe exists in order to deal with organised criminals. We want to rejoin this measure as part of the process of increasing the speed at which we are able to freeze criminal property in the UK, on behalf of EU Member States. The information about the policy implications, and obviously each section has a policy implication and a fundamental rights analysis, is within the Explanatory Memorandum. What I am searching for is exactly what information the Committee was expecting to see in the Explanatory Memoranda.

Q21 Stephen Phillips: Is not the answer that we need to see the basis upon which the Government has reached a decision that it is in the national interest for the UK to opt back into this? The difficulty I have, and this is perhaps the most egregious example of all of the measures that it is proposed we should opt back into, is that that information is simply lacking. The entire document, for those of us who have read it-and I know you will have done the same-gives the impression that it was prepared before the decisions had been taken as to what you were going to opt back into. There was very little change in the document thereafter, as a result of which there is very little for Parliament to go on to know why it is that the Government thinks that each of these measures is in the national interest.

Mrs May: The commitment that we gave was to produce a memorandum that would explain each of the measures. We have done that.

Q22 Chair: Home Secretary, you have failed to provide any reason or insight into how the Government has assessed the national interest, in relation to each measure, subject to the block optout. That is a fact.

Mrs May: We have provided the principles. The Justice Secretary has talked about the principle in relation to justice, and we have provided, as I have done on a number of occasions in the House of Commons, the explanation about the national interest. Obviously, we are talking about measures that relate to the ability for us to deal with international crime, crimefighting and dealing with terrorists. We have looked at the practical implications, and we have made a judgment as to whether it is right that that measure should be rejoined, because of its ability to help us deal with those matters.

Q23 Stephen Phillips: Let us take this one as an example. Where is the statement of the manner in which the Government has assessed the national interest, in relation to this measure? What factors have been taken into account?

Mrs May: The statements as to the manner in which the Government has assessed national interest are statements that I have made in the House of Commons, which I have just summarised in my answer to the Chairman. We have been very clear on the basis on which we have decided the national interest, and that is about trying to avoid, as the Justice Secretary has said, the Europeanisation of justice, but recognising that, in some areas, it is necessary for us to take a practical view, which says, "Will our failure to be in this measure make it harder for us to do what we want to do, which is catch criminals?"

Q24 Stephen Phillips: That I understand. I understand the generic point, but you agreed with me, as indeed did the Lord Chancellor and Secretary of State for Justice, at the beginning of my questioning that it was important in relation to each measure that we should be able to see the manner in which the Government has reviewed the national interest, and that those reasons should be both transparent and open to scrutiny by Parliament. You agreed with that, Home Secretary. The point here-and I have given you a specific example with this measure-is that the information is not there to enable Parliament to perform that process.

Mrs May: As I have indicated, we have produced an Explanatory Memorandum that sets out the implications that we believe exist in relation to particular measures. We took decisions against the background that I have just indicated, on a practical basis and also the philosophical basis that the Justice Secretary set out.

Q25 Mr Clappison: Can I welcome what the Secretary of State for Justice said about the risks of Europeanising our justice system through these measures? The area of freedom, security and justice, and the European Union’s ambitions to extend its jurisdiction through that, is the everpresent background to what we are discussing today. Does the Secretary of State agree that one of the most significant factors in these optins is that, whereas the European Court of Justice did not have jurisdiction over them before the Treaty of Lisbon, when they were dealt with under the old Justice and Home Affairs pillar, in future, where we opt into measures, the European Court of Justice will now have jurisdiction over those measures, as it will over any additional new measures that we opt into?

Chris Grayling: That is absolutely the case, and this has been my prime concern, to be honest. There are some measures here that are just nobrainers. The Prisoner Transfer Agreement, as I said a moment ago, is just something that we clearly want to have. We have a very large number of overseas prisoners, Eastern European prisoners in particular, in our gaols. I am keen to see that implemented across Europe as quickly as possible and to have those people going back to their home countries.

There are other areas where the risk comes. There is a problem I have with the direction of travel that is coming out of Brussels at the moment. Fortunately, thanks to the optin negotiated by the last Government, we do not have to follow, but we are being asked to accept a situation where a set of measures that are often quite vaguely drawn up, which were subject to political agreement over a long period of time, will now be subject to interpretation by the European Court of Justice. We will have no obvious and immediate democratic lever to put in place if we do not agree with those decisions.

Now, a case in point is the probation measure, which we have chosen not to put on our list to opt back into. You might think, at first hand, "Actually, isn’t it a good idea that we send an Eastern European offender back to serve a period of probation in their home country?" There are two issues here. One is that I want to be certain that a punishment is properly administered, but the other issue here is about the drafting of the measure. It is unclear what the situation would be if we were to deport an offender from this country back to their country of origin, where they were to serve a period of probation supervision, and they were to breach that provision to a degree that, in the United Kingdom, would require them to be recalled to prison. We might be in a position where their home country would then say, "Well, they need to be recalled to prison," but we deported them. How do we square that circle?

If that is then a matter for the jurisdiction of the European Court of Justice, I could conceive of a situation where they reached a decision that had profound implications for the deportation process that might complicate the Home Secretary and the Home Office’s life quite considerably. That is not a risk that I want us to take. At some point in the future, there might be an arrangement we thought was a good idea, but this does not feel like it. That is the kind of area where I am extremely reluctant to see the European Court take jurisdiction over measures that have a practical impact in this country, and where we would not be able to do anything about a decision we disagreed with.

Q26 Mr Clappison: I welcome what you have said there, but the Government’s response to the House of Lords’ report on the 2014 block optout decision noted that "it was essential … to assess each instrument subject to the 2014 optout for the potential effect of the European Court of Justice’s jurisdiction on the common law system." Was there a reason why the Explanatory Memorandum did not go into detail on this?

Chris Grayling: Probably what we have tried to do is to provide a sensible summary document. We are making ourselves available. I am very happy to talk through the decisions we have taken. I am happy to provide more detail to this Committee. If there are specific measures where you would like to understand the thinking in more detail, please say so and we will provide documentation. What we have tried to do here-with 130 measures it is already quite a fat document-is to provide the House with readily accessible information that sets out the broad reasons for what we have sought to do and the implications for doing so. If more detail is required by the Committee to do their investigation, we will very happily provide that.

Q27 Mr Clappison: You can assure us that you are, nevertheless, very conscious of the risks of Europeanising the justice system.

Chris Grayling: Absolutely. I do not think there is any doubt about that. I feel immensely strongly about it. I have to say, as colleagues on our side of the House would know, I am not the greatest fan of the previous Government, but we owe it a debt of gratitude for negotiating the optout arrangements.

Q28 Mr Clappison: I think we do, but you have been more than fair in your analysis of the motives that the Government had for that, but I will gloss over that because I am going over old ground. Can I ask you about another specific measure, the European Arrest Warrant? What do you see as the risks for the United Kingdom in extending the jurisdiction of the European Court of Justice over the European Arrest Warrant, which, as with all the other measures, it did not have jurisdiction over under the old arrangements?

Chris Grayling: I think that is one for the Home Secretary.

Chair: It is a preLisbon measure.

Mrs May: The European Arrest Warrant, as Members of this Committee will be aware, is one of the issues that has most captured the imagination, if I can put it like that, of people in relation to this whole question of the 2014 optout. When we looked at the European Arrest Warrant or our extradition arrangements, we looked at what other alternatives were available if we were not within the European Arrest Warrant. We looked at the practical benefits that had come from the European Arrest Warrant. We obviously made an assessment in relation to the response that we had from people outside of Government in relation to this, and made a balanced judgment that those practical reasons for having the European Arrest Warrant, subject to us making changes in our own legislation to deal with the issues that people raised as concerns regarding the EAW, outweighed other concerns in relation to the EAW. That was why we came forward with the proposal that we should actually be rejoining the European Arrest Warrant.

Q29 Mr Clappison: You have analysed the risks of greater integration through these optin measures, which were the existing measures under the Justice and Home Affairs pillar. In addition to that, we have opted into new measures that have been brought forward. Has the same thinking been present in your consideration of them?

Mrs May: For any measures that we have decided to opt into postLisbon, we have made the same assessment. The Government has a number of criteria that it looks at in relation to those measures to determine whether or not to opt back into them. The ECJ issue is one of those that we look at.

Q30 Mr Clappison: Can I ask the Secretary of State for Justice about another specific point? In the light of what has been said about the risks of Europeanising our justice system, there is a provision in the Treaty of Lisbon for domestic courts to seek a preliminary ruling from the Court of Justice on the validity or interpretation of thirdpillar police and criminal justice measures, which 17 countries have been previously part of. Now it applies to the whole of the European Union through the Treaty of Lisbon. Do you have concerns about the way in which the Court may exercise its jurisdiction, as a result of this? I think it comes from Article 267, whereby a court or actually a party before a court can raise a question, and the court then has to seek a preliminary ruling from the European Court of Justice.

Chris Grayling: As everyone knows, I am strongly in favour of both renegotiation of our membership of the European Union and of us sorting out our relationship with the European Court of Human Rights. I am in favour of those things for two very similar reasons. What we have done in treaty terms, and here I do part company from the previous Government, is that we have signed up in two ways-first of all, the European Court of Human Rights in the late 1990s, and in the Lisbon Treaty-to a framework that is very ill defined. We have effectively given to two international courts the power to make law for us and to do so on the basis of documents, whether it is the Convention, whether it is the Charter of Fundamental Rights or indeed whether it is other aspects of European law, that are pretty vague.

The position we are in is that we are likely to see, over the next few years, new laws being made for this country based on an international court’s interpretation of fairly vague provisions, where this Parliament will not have the ability to say, "That is not what we want." The way our legal system in this country works, and the way our democratic system has traditionally worked, and continues to work to this day, is that Parliament passes laws; the courts say, "You haven’t got that right," and rule against Government or Parliament. Parliament then says, "Okay, so we’ll do it differently and change the law this way," and so the process continues. It is a proper process of the courts scrutinising and holding to account, and Parliament expressing the democratic will of the people and reacting accordingly.

In an international environment of the kind we are discussing, we lose that ability. We cannot decide next week that we do not like a decision that has been taken by the European Court of Justice and just rewrite the law. One of the things I think we will have to address in the future is how we ensure that we have protections for this country in an environment where we may or may not be part of international courts that can take that kind of decision.

Mr Clappison: I hope you will not mind if I afford myself the observation that you have just made a very compelling case for not being part of this at all, but I will pass over that.

Q31 Michael Connarty: A minor point: Mr Grayling, you wandered into talking about the European Convention on Human Rights, which of course we were the instigators of back in the postwar era. Do you realise that that statement you have just made, if it refers to the European Court of Human Rights, could have been said by any Russian Justice Minister who refuses to implement most of the decisions of that court? That is for me a frightening statement by a British minister.

Chris Grayling: I am afraid I cannot agree. What was set up in the 1940s by Conservatives-the Convention that was written, the Court that was established-played a very different role for the first 40 years of its existence from the one it does now. Over that 40year period, there were 800 cases heard in the European Court of Human Rights. There are currently well over 100,000 outstanding cases. That change has arisen from modifications to the frameworks that were introduced in 1998, when Tony Blair was Prime Minister in this country. We agreed to a whole raft of things that changed fundamentally the way in which that whole framework works.

Q32 Kelvin Hopkins: Pursuing the discussion we have been having, the Minister for Security told us last November that the Government intended to publish "a full Impact Assessment of the final package of measures that the UK intends to apply to rejoin". Your statement on 9 July, Home Secretary, said that the Government intends to apply to rejoin 35 measures, which are listed in Command Paper 8671. Why have we not fulfilled the undertaking given by the Security Minister and published an Impact Assessment on these measures, so that it can inform the reports that we, and the Home Affairs and Justice Committees, are preparing? That was almost a year ago.

Mrs May: The intention is that the Impact Assessment will be provided in good time prior to the second vote that Parliament takes. The Impact Assessment will be on the final list of measures that the Government is putting forward because, of course, the formal negotiations with the European Commission have yet to start, but those negotiations need to take place before we are able to say to Parliament what the final list of measures is that we are proposing we opt back into. The Impact Assessment will be available in good time, prior to that vote taking place, so that there can be proper scrutiny of the Government’s proposal.

Q33 Kelvin Hopkins: Even if it is not published, is there an Impact Assessment internally that is enabling the Government to make some kind of decision? How can they make any decision without those kinds of Impact Assessments?

Mrs May: As we have discussed earlier, work has been done in looking at the measures and making assessments of the measures. A final formal Impact Assessment will be produced, as I say, when we have the final list of measures that we know we are able to put to Parliament as those for which the Government wishes to exercise the optin. That of course will be subject to negotiation by the Government, with the European Commission and indeed, in some cases, directly with other member states.

Q34 Kelvin Hopkins: In an earlier statement, you said that the Impact Assessment would be made in good time, ahead of the second vote. You have just repeated that. Do you accept that you have shifted the goalposts, since the timescale you appear to envisage would mean that the Impact Assessment might only be made available once discussions on the final package that the UK will rejoin have all but concluded, late in the day?

Mrs May: I do not believe we have moved the goalposts.

Chris Heaton-Harris: This is the badgers.

Mrs May: Sorry?

Chair: This is the badger question.

Mrs May: I am afraid you have completely lost me on badgers.

Chris Heaton-Harris: Have a read of the papers when you get back.

Chair: There are a few cartoons in the papers today.

Mrs May: Right, sorry about that. It has been our intention that Parliament would have an Impact Assessment when making a decision in relation to the package that the Government is finally proposing that we re-enter.

Q35 Kelvin Hopkins: Can we have a clear commitment today perhaps to a date for publication of the Impact Assessment, and an assurance that, unlike the Explanatory Memoranda, it would not be a matter of days before a further debate and vote in Parliament?

Mrs May: The commitment I can give, Mr Hopkins, is, as you have said I have said before and I have said again this morning, that we will produce the Impact Assessment in good time. I cannot give you an actual date for the Impact Assessment, because I do not know when the negotiations will have completed with the European Commission and other member states; and therefore when we will be in a position to bring that package back to Parliament. I cannot say that on x day it is going to be possible to do the Impact Assessment because, at that point, I cannot guarantee that we will have the package. I will confirm that we intend to bring that Impact Assessment in good time, so that people can give it proper scrutiny before that vote is taken.

Q36 Kelvin Hopkins: It will not be a matter of days before the debate. It will be weeks, or possibly months, before we have the second debate, which gives us time for proper consideration.

Mrs May: It will be in good time. I think it highly unlikely it will be months, for this reason: we produce the Impact Assessment when we have the final list. The final list depends on the negotiations with the Commission and with other member states. At the moment, obviously we have not started those formal negotiations, so we do not have the timetable for that, but it may well be that the negotiations will take some time. We cannot assess. We know the initial reactions that we have had from other member states and from the Commission. That is why I hesitate to put a specific length of time on it, because there is an uncertainty about that particular timetable, in terms of the negotiations, which means that I cannot commit, other than saying that we will ensure that it is in good time for people to scrutinise the Impact Assessment properly, before the vote is taken.

Q37 Kelvin Hopkins: One final question from my group at the moment: can we have your assurance that the Impact Assessment will address the deficiencies in the Explanatory Memoranda, by including a detailed analysis of the implications of extending the Court’s jurisdiction for common law systems in the UK-possibly the Justice Secretary as well-as well as a clear statement of the Government’s reasons for opting into individual measures?

Mrs May: The Impact Assessment will be in a particular form. As the Justice Secretary has said, we are happy to provide-I gave an answer to Mr Phillips in relation to the freezing-of-property measure-any further explanations to the Committee. We are here and willing to answer those questions, as to some further detail, at this stage, of the Government’s position. I think we will undertake to ensure that Parliament has, in good time, sufficient information for it to be able to scrutinise the Government’s decision. Obviously, at that stage, Parliament will also have had, because it will have fairly soon, the opinions of this Committee, of the House of Lords, of the Home Affairs Select Committee and of the Justice Select Committee.

Q38 Kelvin Hopkins: The Impact Assessment will be rigorous; it will not gloss over difficult areas or omit them perhaps. It will be rigorous.

Mrs May: I would expect an Impact Assessment to be rigorous.

Chair: With respect to the question of the letter of 11 September, which you wrote recently, we regard this as a very unsatisfactory response, but I think it would be better, for the moment, if we could leave Michael Connarty to go into some of the questioning that lies at the heart of that comment I have just made.

Q39 Michael Connarty: I think the Home Secretary should accept that we did consider that letter at a formal meeting. I don’t think anyone demurred from the point of view that it was a very unsatisfactory response, in terms of Impact Assessments and when they would be produced or not produced. I think the whole Committee is concerned that your letter indicates that you will not be producing the Impact Assessments that we asked for on the things that you are not opting back into. We, as people scrutinising this on behalf of Parliament, will not be able to consider it before the debate takes place, nor will anyone, if you do not produce those Explanatory Memoranda.

I refer you back to the answer you gave to James Clappison. I hope people read this evidence session with that in mind. You said that you considered all the facts of the things that we are not going to opt into. In other words, you gave us an indication that your civil servants did in fact produce adequate information for you to make that assessment, but you are not prepared to put that before the scrutiny process, either here or in another Committee.

I want to ask you this: you are aware that we have also asked for a second Impact Assessment to be provided on the measures the Government does not propose to rejoin. That has always been a request of this Committee since this process began. We believe it is necessary to clarify whether alternative arrangements may need to be put in place, what form they would take or how feasible it is to do so by 1 December 2014. If I may quote from your joint letter of 11 September referred to by the Chairman, you say, "You ask that we provide an Impact Assessment on the costs and benefits associated with non-participation in those measures the Government does not intend to rejoin, and not just on the 35 measures set out in Command Paper 8671." You say, "I am happy to reiterate that the Government is committed to providing an Impact Assessment on the basis of the final package of measures the UK will formally rejoin in good time ahead of the second vote."

Are we to infer from your letter that you do not intend to produce a second Impact Assessment at any time, so that the people of the UK, who we represent, will see the consequences of not opting into what in fact will be almost 100 measures that we originally opted into? I want to say I think it was a very interesting reply from Mr Grayling to Mr Clappison, giving a fairly good explanation about the difference between one measure, in terms of where people should serve their term if they are foreign criminals, and the probation example. Why has that not been made available on every single issue that we are not opting into? Do you have something to hide?

Chris Grayling: Let me pick up on the example that Mr Connarty made. I have a minority of the measures but, as I set out to the Committee at the start, if you look at the ones we are seeking to opt out of or to not opt back into, a significant number of those are minimum standards measures. It is actually, as I said at the start, a question of philosophy, pragmatism, principle or whatever. I do not believe that it is in the interests of this country to Europeanise criminal penalties.

In the case of those measures, I have taken a decision. I have put the proposition to my colleagues in Government, who have accepted the argument that we should not rejoin measures. Indeed, now, with new measures coming forward, it is not my intention that we should be part of measures that Europeanise penalties, so there are minimum standards across Europe. That is a question of policy and a question of principle, which I am very happy to lay out before this Committee. It is a very simple principle and, for a number of the ones we are not opting back into, that is the fundamental reason.

Q40 Michael Connarty: Just to indicate, I was not asking for a generalised discussion. The question is: in each of these individual things that you are not going to opt back into, I believe that the scrutiny process of all Committees requires you to give us the evidence, not just a general philosophical discussion but the evidence that the people in the UK require, and we require on behalf of Parliament, to assess each decision. You are denying us that right. I don’t want what you call a philosophical decision; I may call it a pragmatic decision, in terms of politics. The reality is, that is not what we need to scrutinise. That is not what the people in the UK need to assess all the optouts. It is the detail that your civil servants put to you-or did you tell them first, before they gave you advice, because you had a principle or a political position? Did they actually, as civil servants I presume should, provide you with analysis of each of these decisions? Why have they not been made available to us? That is the kernel of this, not where your philosophy lies. Why won’t you carry out the proper process of providing us, the people, this Parliament and the UK with each of your logical assessments of each of these decisions?

Chris Grayling: I just have. I have just said to you that, on a number of the measures that are minimum standards measures, we have taken the decision that we do not want to Europeanise the British legal system. We don’t want to have common European penalties. Those measures that would lead to that happening we have taken the decision not to opt back into. I have not done vast amounts of analysis to understand the impact on the British population of whether we have a minimum standard penalty for counterfeiting the euro or not. I have taken a decision on behalf of this country, which I am putting to Parliament for its acceptance, that I do not think Britain should be part of minimum standards measures, and we are not going back into them.

Q41 Chris Heaton-Harris: I actually welcomed the policy announcement, and indeed the way you have described it today, because it is very helpful. I agree with not going into minimum standards on the police and criminal justice system, as the Home Secretary said back on 15 July, because it allows people like me to then delve deeper into the decisions that you are making and do a bit of scrutiny. Actually, there is one that slipped through the net, I would suggest, which is the Council Framework Decision 2008/675/JHA, which is the minimum standards decision taking into account previous convictions handed down in another member state against a person during any criminal proceedings they bring against that person, to the same extent that they would take into account previous convictions handed down in their own country. This is something for the debates that we have further down the line, but it has allowed me to delve deeper into this and raise such anomalies, in this forum and hopefully in the future. I welcome the fact that you have gone down this route. I don’t see the danger that Mr Connarty does.

Chris Grayling: If I might answer that particular question, I looked at that one quite carefully. My judgment was that, if I go back to the initial point about international crimefighting, I want to be in the position where, for somebody who is an overseas national-an EU national in the UK-and is accused of a serious offence, the Court has clear processes understood across the EU, whereby our courts can have access to the information that says, "This person is also guilty of a serious offence elsewhere." Clearly, we are not laying that in front of a jury before they take their decision. It is a principle of our common law system that that does not happen, but I do want, at the appropriate moment, the judge to be able to say, "This is the fourth time you have committed that offence and, therefore, the penalty will be more severe." We looked quite carefully at the detail of that measure and, in my judgment, that is the right decision to take.

Q42 Michael Connarty: I am very grateful to my friend Chris HeatonHarris. That is two examples we now have of matters you have made decisions on where it might have been very useful to provide an Explanatory Memorandum and an Impact Assessment, and put them before the scrutiny process.

Chris Grayling: I would be very happy to provide you with a note on that.

Michael Connarty: My argument is, that should have been done for all of them, and it is not right not to have provided that for all decisions. It may be some of the decisions were made because things have been superseded. I know that many have been superseded by further decisions, which we have opted into, and some have been since Lisbon. We now are in a situation where, without those questions, the generality of Parliament does not know of these two examples or many examples that are very logical. I am not going to take a political position about whether Europeanisation is good or bad; it is just that Parliament should have the information. That is what this Committee and other Committees are about. Do you think that an implicit refusal, and that is what you have clearly just stated-overarching political decisions you have made are enough for us-with no explanation given for refusing a request for further information is an appropriate way to engage with Parliament?

Chris Grayling: Mr Connarty, if you take the example of counterfeiting the euro, we have not done a detailed analysis of the impact on the British nation of not being part of counterfeiting the euro. We have taken a principled decision that we do not want to be part of that. We have got an Explanatory Memorandum in here that sets out what the nature of that measure is and the implications of being part of it. Mr HeatonHarris has just raised an issue about a particular measure. I am very happy to provide the Committee, on that particular measure, with an explanation in much more detail than would have been in the original document about why we have taken that. I am very happy to do that. That is the purpose of having this process and discussion now.

Q43 Michael Connarty: You are refusing, or seem to be refusing, to say that you will ever produce an Explanatory Memorandum with the Impact Assessment of all these decisions not to opt back in. The consequence of the optout will never be explained unless we pick up individual cases.

Chris Grayling: That is why we are having this discussion.

Michael Connarty: That is not what evidence sessions are about.

Chair: Mr Connarty, could I just ask James Clappison to follow that up?

Mr Clappison: I hear what the Secretary of State for Justice says about that. I think it is a jolly good thing that we are not part of the real euro either, and that is probably more dangerous than the counterfeit euro.

Q44 Chair: If I could make a comment on which I would like to have your thoughts, you talk about Europeanisation, but the real question surely is also this: the question of whether or not any one of these measures, whether you opt in or you opt out, has an equivalence to what, in many respects, might even be a significant section of an Act of Parliament made by our Westminster Parliament on its own terms. This whole process and the need for transparency is that, if it were a domestic piece of legislation that we brought in on our own terms, without having regard to what you call Europeanisation, we would have a full debate, which would go on, with amendments, with a full discussion on the floor of the House of Commons. What we are doing here is attempting to find out, in relation to, for example, Explanatory Memoranda or to the Impact Assessment, just exactly what the thinking was. Otherwise, if it were purely domestic Westminster legislation, we would be able to ask you and to challenge you on the floor of the House or to have a fuller explanation. Is that not really, in many respects, part of the essential nature of this problem?

Chris Grayling: Mr Cash, what you have to bear in mind is the nature of the process that we are dealing with. I have made no secret in my discussions with other ministers, and indeed here, that I think it would have been better if we had been able to deal with each issue one by one, rather than having to do the block optout, but the Treaty very clearly said that we had to do what we are doing here. Now, I am, as somebody who has the views that I have expressed to this Committee, pleased that the Government has been able to agree the exercise of the optout.

A necessary consequence of reaching that agreement is that we now have to have a detailed discussion over the list of measures that we opt back into. We have to have the discussion with Parliament; we have to be able to answer questions. I am certainly very happy from my side of things, and I am sure the Home Secretary is as well, to answer questions fully about individual measures that the Committee, or indeed any individual MP, has a question about; but, because of the nature of the process we have gone through, we had to reach a point first where we could exercise the optout, before we could actually start any of the rest of this-the discussions with Parliament, the discussions subsequently with the Commission.

We are trying to take a complex process through as carefully and sensibly as we can. We very consciously set aside this autumn to have those discussions with Parliament. We have told the Commission and other member states that, whilst we are obviously having informal discussions with them, because they are all very interested in what is happening, we are not going to start full negotiations with the Commission until Parliament has been able to ask the questions that Members of this Committee, the House of Lords Committee yesterday, the Justice Committee and the Home Affairs Committee next week will be asking. We are here now to go through all this in as much detail as we need to with you. It is not about a formulaic "have you published a set of documents-or a fat document-here?" It is about having a discussion and answering your questions, and that is what we are here to do.

Chair: We want to move on.

Mr Clappison: Can I ask the Secretary of State for Justice on this particular point?

Chair: Mr Clappison, we will move on to the next question. Mr Davies.

Q45 Geraint Davies: Can I ask a simple question? Do you confirm the date on which the UK may formally apply to rejoin measures, subject to the block optout, is 1 December 2014, as the Commission has said? Is that the case?

Mrs May: We will be in discussions. We have had some informal discussions with the Commission. Obviously, once we are able to start the formal negotiations, part of that will be a discussion about the process of rejoining and how that process applies, and the relevance of the date of 1 December 2014. What we would prefer, on those measures where it has been agreed that we will rejoin, and what other member states would prefer, is that we see a seamless transition and that there is no gap between the point at which we have left measures and the point at which we rejoin measures. That is why the question about the date will be part of the discussion that we are having with the Commission.

Q46 Geraint Davies: Exactly. On that, is there a real risk that a hole will appear in the net for, for instance, the European Arrest Warrant, through which criminals can slip? In other words, if there is not a seamless transition, will the whole process that you are pursuing not put people in Britain at risk of dangerous criminals?

Mrs May: There are two points, if I may, in answer to your question, Mr Davies. First of all, all the indications that I have received, and I believe the indications that the Justice Secretary has received as well, from other member states are that they take the same view that we do-that they do not wish to see any gap appearing between the final exercise of the optout and the rejoining of measures. We have to negotiate on the detail of the measures, but there is a significant will across Europe to ensure that a process is in place that enables us to rejoin measures such that there is no gap.

Now, if, when we start the formal negotiations, it becomes clear that a different approach may be being taken by the Commission and by other member states, then we will, of course, depending on what that gap might be, look at the contingency arrangements that would be in place. However, currently, it is our expectation, from everything that we have heard in the informal discussions that we have had so far, that the weight of opinion will be such that it will be possible to have a seamless transition.

Q47 Geraint Davies: Do you not think that that gap could appear both from the point of view of, firstly, bureaucratic imperfection and the whole way these things work and, secondly, perhaps, a political view against the UK view that we are cherrypicking: why should the UK be able to just have everything it wants and nothing else? That whole debate will cause a delay that will put British citizens at risk of not being protected from dangerous criminals by, for instance, the European Arrest Warrant. Will you take the hit if people do suffer as a result, whether it is in a rape or murder or other criminal activities?

Mrs May: There is a debate taking place at the moment, and it will be a formal negotiation within Europe, as to what that bureaucratic process, as you say, will be in terms of rejoining. I see no reason so far and from everything that we have heard why that bureaucratic process cannot be such that it is a genuine, seamless transition, i.e. remaining in the measures with the necessary exchange of whatever paperwork needs to be exchanged in relation to that.

As to the second point you make about the attitude of other member states to the UK’s position, the attitude that I have found over the last few months is the following. First of all, there is a genuine acceptance that this is a Treaty capability that the UK has and recognition that that should be respected. Therefore, there is no question that suddenly the UK has asked for something that it has not been given. It is there in the Treaty and, therefore, that should be respected as a process that the UK can participate in.

Secondly, there undoubtedly was a degree of questioning from other member states before we produced the list about some issues that they were particularly interested in, like the European Arrest Warrant. The atmosphere since we produced the list has been one of welcoming the fact that we have taken the approach that we have. Indeed, the Commission described our approach as "pragmatic" in their reaction to the production of the list, and that is what we have done on issues like the EAW. The exact quote from the Commission was it "welcomes the UK intention to also opt back into certain measures. At first sight, it appears the UK has looked at the optins in a pragmatic way".

Q48 Geraint Davies: Finally, if other member states were empowered and chose to do the sort of cherrypicking exercise the UK is doing, so we had a strange tapestry of different people opting in and out and shaking it all about, do you not think that would become an unworkable system that would be open to abuse from the criminal fraternity?

Mrs May: What you are asking me about is a rather larger issue than the 2014 decision.

Q49 Geraint Davies: I know. I just wonder whether, if everybody did what we are doing, it would be a mess. That is the question.

Mrs May: No. The 2014 decision is a Treaty right. This ability to exercise the optout and potential optin is a Treaty right that the United Kingdom has. Denmark is obviously in a different position from the European Union in relation to measures as well. In the wider sense, it is absolutely right, given the changes that are taking place in Europe, that we should be looking to negotiate what the settlement between the United Kingdom and Europe is on a whole variety of issues and, as you know, I have a political position that that renegotiated settlement should be put to the British people. As part of that renegotiation, obviously, a number of issues are being looked at in terms of what any member state’s relationship should be with the European Union and with other member states.

Q50 Geraint Davies: Finally, I have a similar question for the Justice Secretary on people slipping through the net. Can he give a cast iron guarantee that in this transition period we will not have the difficulties of criminals slipping through that net-the European Arrest Warrant, for instance, will not apply and crime will occur?

Chris Grayling: The European Arrest Warrant is a Home Office matter, but let me direct you to the evidence given by Professor Steven Peers to the Home Affairs Select Committee on 10 September. In relation to that transition and the time scale, he said, "There certainly ought to be enough time. I would say it would not be the Government’s fault if there is no decision in time by December next year. It would be some kind of political difficulty that the Council and the Commission have dreamed up." I have seen no evidence at all that the Council or the Commission would wish to dream up such a barrier.

Q51 Andrew Bingham: Home Secretary, you sound quite confident about this. The Command Paper suggests that there will be an informal agreement prior to the official submission. Do you anticipate that informal agreement will happen?

Mrs May: With the European Commission?

Andrew Bingham: Yes.

Mrs May: Yes. Our position is that we believe it will be possible, once we have been through the processes, to apply to rejoin the measures and to get agreement on that prior to the 1 December date. Technically, there would then have to be this bureaucratic process that Mr Davies was talking about: some sort of exchange where, because we have opted out, formally we opt back in. However, there is no reason why that could not just be an exchange of letters that takes place immediately and, therefore, there is no period for which we are not in the measures.

Andrew Bingham: Yes, if there is informal agreement beforehand it will make the formal side a lot easier and would remove the concerns about a gap.

Mrs May: Indeed.

Q52 Andrew Bingham: If the worst comes to the worst and there is no informal agreement, what is the plan then?

Mrs May: If it becomes clear as we start the formal negotiations that that is looking less likely and there may be some transition-as I say, all the evidence from other member states is that they are keen to ensure that there is no transition, just as we are keen to ensure there is no transition-obviously we would look at the contingency arrangements that will be in place during that period. Of course, what arrangements were in place would depend on what that period was likely to be, and if it was a matter of a few days, it is a different approach from if it was a longer period. However, as I say, the work that we are doing at the moment suggests that we would be able to apply to rejoin before 1 December, but then there would need to be some formal exchange at that point.

Q53 Michael Connarty: The transitional arrangements that we are talking about are only referred to in Article 10(4) of Protocol 36: to deal with the consequences of a decision by the UK to opt out of all of the preLisbon police and criminal justice measures. On what basis do you consider that they can be used to ensure that measures the UK intends to rejoin under Article 10(5) of the Protocol continue to apply to the UK?

Mrs May: It will be a matter of negotiation that we will be undertaking with the European Commission and other member states as to what the final process will be and the dates of us rejoining those measures where the Government is requesting that we rejoin. All the indications so far are that other member states are keen, because we have taken a pragmatic approach. The measures that we are seeking to rejoin are about, in most cases-certainly on the home affairs side-being able to help on a crossborder basis to fight against crime, and other member states wish to work in a way that would enable that transition to be a seamless one.

There are two issues here. You are asking where the legal position stands, and then there is a practical application of that. What I am saying is that you cannot be in the measure twice, so legally you come out and go back in, but the practical way you do that can ensure that that is seamless.

Q54 Michael Connarty: Basically, the Commission will cut you some slack, as they would say in America, and although you are out legally, you will still remain in technically and practically in the transition period. I see your civil servant, Mr Ward, nodding his head vigorously in support.

Mrs May: What I am suggesting is there is not going to be a transition period. All the evidence is that we should be able to do this in a way that means there is no gap between us coming out and going in.

Q55 Stephen Phillips: I am just trying to understand. We are all hoping there is not going to be a gap, and I understand that.

Mr Clappison: Some of us want a big gap.

Stephen Phillips: Let us leave Mr Clappison to one side for a minute. What is the legal position? I am looking at Article 7 of the relevant Protocol now, and there does not appear to be any legal mechanism by which the measures to which we wish to opt back in will continue to apply if there is a gap. Is that right?

Mrs May: What I am saying is there are two situations here. One is that we believe it is possible within the legal framework, but in a practical way, to ensure that there is no transitional arrangement. If there is a gap, then by definition we will have opted out of measures and we will be looking to rejoin. If it becomes clear that there is likely to be such a gap, we will obviously be looking at the contingency arrangements.

Chris Grayling: If this goes as it should do-and I have yet to meet any member state that does not want this to happen-we will conclude this autumn the discussions between us and Parliament. You will produce your reports and recommendations. We will look very carefully at those. We will take on board the views of Parliament. We will then enter a discussion process with the Commission in the first part of next year. We will reach an agreement about the principle, about the list and the process. We will then return to Parliament. We will produce documentation in good time for Parliament to consider. There will be a second vote. If Parliament gives its approval, the process beyond that will be for the Council to accept our request to rejoin those measures, which can again happen in good time. The Council decision, in legal terms, has to take place relatively close to 1 December, but, if everything has been agreed in advance, that will simply be a question of getting the Council’s acceptance of a deal that has already been negotiated. Then, on the night of 30 November to 1 December, we would opt out and then opt back in five minutes apart or whatever.

Q56 Michael Connarty: What if it does not work?

Chris Grayling: The point is there is no reason why it should not work. President Barroso has been very clear and very supportive, and the Commission’s statement when we announced the optout was very constructive. Other member states are immensely keen that we sort this out in a smooth way.

Q57 Chair: Can I intervene at this point and just quote you what Mr Barroso says in his letter of 5 September? He says, "The Commission will take its final position after the UK’s formal notification of the final list of measures it will seek to opt back into, which can only be done after the end of the transitional period as of 1 December 2014."

Chris Grayling: That can all happen simultaneously. That is the point. It is absolutely right: we cannot opt back in until we have opted out, but you do not have to have more than about five minutes to do it. If everything has been lined up ready, and I think the political will is quite clearly there, it is possible to do the legal mechanics pretty quickly.

Mrs May: If I may, Chair, our interpretation and our belief is that the transitional powers are quite wide, such that it would be possible for those transitional powers to allow the effect of membership to continue if there were a period of time between these two acts of opting out and opting back in. However, that is all part of the negotiations that will obviously be taking place with the Commission and with other member states. As we have both indicated as strongly as we can, the evidence we have so far is that it is in the interests of everybody else to make sure that there is not a transitional gap or a gap-

Michael Connarty: Operational gap.

Mrs May: Operational gap, thank you; that is probably a better word, Mr Connarty. We believe that in transition terms, there need not be a gap, but if there were, the transitional powers are such that we would not have the operational gap.

Q58 Mr Clappison: I was going to ask about informal discussions that you have had with the Commission, the Council and other member states, but I think you have given an account of that, unless there is anything you wish to add about any other progress that has been made in informal discussions.

Chris Grayling: I do not think so. Clearly, the biggest block is the discussion that takes place between the Home Secretary and Commissioner Malmström and that we collectively have with the Commission President. We have both been having informal discussions with other member states for a long time, a year or more. They have raised concerns, we have discussed the issues, and we have set out the need to move things as speedily as possible. I have yet to have a conversation with any other Minister of another member state-and the Home Secretary will say the same-who has said anything other than, "Can we just get on with this?"

Mrs May: On the home affairs side in relation to Commissioner Malmström, the initial discussions I have had with her have been on a very pragmatic basis in this matter. Obviously, we have not been able to start the formal negotiations, but we have been having those informal discussions. In any contact we have had with other member states, they have wanted to talk about this and raise the issues and talk about their interest in it. We have had those informal discussions but, as I say, with regard to Commissioner Malmström, so far she has taken a very pragmatic approach to this.

Q59 Chair: To finalise this section, as it were, as you indicated just now, you gave Parliament an undertaking that formal negotiations would not begin until after 31 October 2013. The House of Commons has not endorsed the list of 35 measures set out in Command Paper 8671 in which you said that the Government wants to rejoin. What will you be negotiating about?

Mrs May: We will be negotiating on the basis of the Government’s position. We will have to look at the information from Parliament that will be produced in relation to the measures, and obviously various Committees will be coming forward with their views on this particular issue.

Q60 Chair: You do appreciate that there are some very strong feelings on all sides of the House on this question of whether or not we should rejoin certain measures, and some of them have a very high degree of anxiety attached to them.

Mrs May: I recognise that there are some issues, particularly perhaps in my neck of the woods, on which people have some very strong opinions one way and the other. Parliament will have an opportunity to have that vote once we are able to put the final package to it, but of course we do have to go through the negotiations before we are able to do that.

Q61 Chair: On 9 July, you said in your statement to the House that the Government’s approach to the block optout was based, as you put it, on reasons of principle, policy and pragmatism. You have decided to opt out of all preLisbon measures establishing minimum standards and penalties in criminal law. Is this an example of principle or pragmatism?

Chris Grayling: It is a bit of both, I think. It comes down to that point. Broadly speaking-there are some exceptions around the edges but they are small in number-the approach that I have taken on the justice side is very much that I do not want our system Europeanised. Now, Mr HeatonHarris raised the issue earlier about the provision of information about a criminal record to the Court and, again, we have looked quite carefully at that. I am very keen that it is a twoway process. It is very easy to look at these things and say, "Well, it does not matter; they are not in our country," but I want people to face justice for things they have done here and they might do elsewhere. Therefore, I want criminal records in this country to be available to courts elsewhere and vice versa. In my judgment, this is a measure that does not open problems for us as a nation, but smoothes the path to justice. Therefore, in one or two small cases like that, I am happy to see change happen, but broadly speaking, I just do not buy the idea that we should have a European rule that says you have to have this rule for fraud, this rule for forgery, this rule for Uncle Tom Cobleigh and all. Therefore, it is pragmatism in the sense that I think it is, frankly, the view of the British people and the view of this Parliament, but it is principle also, because I think it is the right decision to take.

Q62 Chair: Could I just follow that up by asking this: how can your decision to opt out of these measures be reconciled with the Government’s decision to opt in to similar measures proposed since the Lisbon Treaty entered into force? For example, there are the directives on trafficking human beings and on cybercrime, which the UK has already opted into, as well as a pending optin decision on criminal law measures to tackle fraud against the European budget.

Chris Grayling: You might have noticed, Mr Cash, us taking a fairly vigorous approach on fraud against the European budget, where I am glad to say other member states backed us in saying that the Commission’s choice of a different legal base for its proposals was wholly unacceptable; it was judged by the Council Legal Service to be illegal and they, fortunately, changed their mind on that. It is certainly the case that before I came to my current role one or two decisions were taken by the Government, and certainly if you look at an area like human trafficking, it is such a transnational issue that I know that the Government took a decision that it was part of the crossborder picture that I described earlier. However, I can offer you and the Committee my assurance that I am definitely not sitting there looking at measures we can opt into that will Europeanise our justice system.

Mrs May: Obviously, human trafficking is also a key issue for the Home Office. What we have done on measures post the Lisbon Treaty is, on any measure that comes before us, go through a process of looking, as I indicated earlier to Mr Clappison, for example, at the ECJ ramifications of it, the extent to which it enhances cooperation and the practical problems that might exist were we not to be part of that. Added into that, of course, is the question of the benefit of being in at a point in order to be part of the vote on negotiations while the directive is being finalised. All of those decisions are taken on any particular measure.

On human trafficking, it is a very considerable crossborder issue that we will be taking a rigorous approach against. The National Crime Agency that was launched on Monday will be relentlessly pursuing organised criminals, including those who are trafficking human beings. Sadly, it does not happen just across borders, of course, as we know, but this Government will be going further, because we will be introducing the Modern Slavery Bill, which will mean that the UK is at the forefront of dealing with this issue.

Q63 Michael Connarty: I slightly disagree with the idea that we should sit here and pick individual cases and put them to Ministers and say, "Why did you not do this and why did you not do that," because I do believe it is the duty of a Government, when it decides to withdraw from legal decisions in the past, to tell us and the public, everyone, the consequences. The Chair has given an example of things that we have opted back into and I, as you know, as Vice-Chair of the Human Trafficking AllParty Group, look forward to a good, strong, anti-modern slavery Bill coming forward from the Government and hope that there is crossparty support.

However, when we have contradictions we should not have to seek them out. Everything should be explained and therefore everyone should be able to know, but I will give some examples that I have noticed. Can you explain why you consider that it is in the UK’s national interest to participate in peer review of national capability to tackle organised crime, which you list on page 86 of Command Paper 8671, but not terrorism, which you in fact indicate on page 90 of Command Paper 8671 you will not be involved in? We should not have to ask about these individually. You should be giving us the information to do that in all cases, and then we could do our job properly and Parliament could be fully informed. Those are two examples that seem to be contradictory.

Mrs May: As we say here, the implication in relation to the terrorist offences is that we are compliant with that measure by the Terrorism Acts that were passed in 2000 and 2006, and if we were to decide not to participate, domestic legislation would remain in place and we would still be covered by it.

In relation to the other measure that is there, there is some element of sharing of best practice. However, the suggestion behind your question-that somehow we are no longer going to participate in working across borders or exchanging information across borders in relation to terrorism if we are not in a particular measure that has a European title on it in relation to this-is wrong, because cooperation continues to be the approach that we take. However, as it happens, we are not rejoining any of the measures covered by the terrorism peer review mechanism.

Q64 Michael Connarty: Home Secretary, you made a very good statement about the need to do everything we can against human trafficking, which is a form of organised crime, and you stressed the necessity to accept that it might be better and it would add value. That is the question about directives coming from Europe, and I have been on this Committee since 1998 trying to push back against anything that comes from the European Union that does not need to be done or add value at a European level. That is the crossparty aim of this Committee. However, surely with terrorism, people in the UK would say it is the same argument. Organised crime and terrorism are things that we are better to do at the European level, and value would be added if we had a total European full press against this, rather than just opting out of it. What you are arguing, surely, is that we can then make other individual arrangements, as the UK, with other parts of the EU and the world, but why not have the same principle for antiterrorism peer review and serious organised crime? I do think people will be perplexed by that decision.

Mrs May: If I look at the measure that you refer to, which is referenced on page 91 of the Explanatory Memorandum, as it says, the instrument sets requirements for creating a number of terrorism and terrorismrelated offences. We have the legislation in place in the United Kingdom in relation to terrorism offences, because of the Terrorism Acts of 2000 and 2006. It does not say that, by being out of that measure, we are no longer going to be discussing or working across borders or dealing with terrorism on an international basis. Of course we are, but those are the practical things that we do on a day-to-day basis; you do not need a European directive to do that.

Q65 Michael Connarty: On one you support peer review across Europe and on the other you do not. I take the view sometimes that we are leading, and, as you said, we are leading in terms of human trafficking when we bring in the Bill. The idea of peer review across Europe would surely advantage that fight and also put us in a lead position, and that would be the same for terrorism. You say you do not want European peer review for terrorism but you want it for serious organised crime.

Chris Grayling: Going back to one of the key points, Mr Connarty-it is very important-it is very easy, and it certainly does happen, to make law because there is a sense that we should make law. Certainly, over the years both our own Parliament and the European institutions have created law in response to events because they thought they should do something. I see that tendency now: to say that we should do something because we should, even though it has not traditionally been a European matter or a legal step is not necessary. Up until the Lisbon Treaty, those were intergovernmental agreements. They are now going to be subject to European Court of Justice jurisdiction. I would argue in a number of the measures that we are not opting back into, they are measures that add no value but do involve the transfer of jurisdiction from where we were to where we are going to be. If they do not add any value, I see no benefit to us in being part of them.

Q66 Michael Connarty: You are concluding, therefore, that peer review of antiterrorism actions across Europe does not add value.

Chris Grayling: I did not say that.

Michael Connarty: That is what you said. That was your opinion. If it does not add value, you are saying, therefore, peer review of antiterrorism action across Europe-

Chris Grayling: I am the wrong person to ask that question of.

Michael Connarty: This is the question I am asking you. I am giving you the example to answer on. Surely peer review does add value across Europe.

Mrs May: It is a peer review of EU legislation. We need to be clear about what it is. Sorry, I made a reference to this earlier but did not, perhaps, explain it. We are not participating in any of the, if you like, allied measures in relation to the peer review of terrorism. On organised crime, we are proposing to rejoin a number of related measures, such as the European Arrest Warrant, so therefore there is a common-sense approach to saying that there is some benefit in being part of that. However, in the other case, where we are not part of any of the allied measures, there is less benefit in being part of the peer review of EU legislation. There are elements here where there are packages of things that you can look at, and sometimes it is not sensible to separate them.

Chris Grayling: My point is very simple: what we have done is look across the board and say, if there are things in both of our portfolios that are materially beneficial to the United Kingdom and in the national interest to be part of, fine. If there are things that are clearly against our principles, like the minimum standards measures, we will not be part of them. If there are things that just make no difference, why would we want to hand over the jurisdiction to the European Court of Justice when the previous Government gave us an opportunity not to have to do that?

Q67 Kelvin Hopkins: If I can raise with you another specific matter where there does seem to be some inconsistency, which I hope you can explain, what are the Government’s reasons for wishing to remain part of a network of designated contact points for the exchange of information on the investigation of genocide, crimes against humanity and war crimes-item number 40 in the Command Paper, on page 92-but to opt out of a related measure strengthening crossborder cooperation in investigating and prosecuting these crimes, item number 51 in the Command Paper?

Mrs May: On the measure that you are talking about us not rejoining, are you talking about the European Judicial Network? I am sorry; I apologise, Mr Hopkins.

Kelvin Hopkins: It is item 40, page 92 of the Command Paper; I do not know if it is to hand. Crimes against humanity: to remain part of a network of designated contact points for the exchange of information, but then to opt out of the related measure for strengthening crossborder cooperation in investigating and prosecuting these crimes. They would seem to hang together, but they have been separated.

Mrs May: On the measure that is about the investigation and prosecution, as we make clear in the Explanatory Memorandum, the cooperation that takes places is conducted through MLA structures and procedures. That perhaps explains why we have decided not to be part of that particular decision.

On the contact points, it has been suggested to us that there is a benefit in having them. We have looked at the balance of these, and certainly the view we have had in relation to the contact points versus the European Judicial Network from the Director of Public Prosecutions is that this is about the right balance in terms of the list that we have produced.

Q68 Mr Clappison: Can I ask the Secretary of State for Justice if he is worried about where we might end up with the increased jurisdiction of the European Court of Justice?

Chris Grayling: There is a clear desire in Brussels at the moment to greatly expand the scope of the European justice area. All of the evidence that I have seen of the way in which fairly vaguely drafted European laws turn into difficult decisions in the European Court of Justice-and you will be aware, Mr Clappison, of the time I have spent debating issues around benefit tourism and decisions around entitlement to benefits across borders-is that the Court is often inconsistent, sometimes takes decisions that are completely contradictory and sometimes takes decisions that we, in this country, believe should be matters that are reserved for national Governments rather than for a European institution. In that situation, I am very reluctant to see its footprint in the justice area expand.

Q69 Mr Clappison: The only time it has been predictable is when it has been federalising. That is the only thing you can predict about the European Court of Justice; that it will seek to extend the ambit of its jurisdiction as much as it possibly can.

Chris Grayling: It is an interesting question. I have looked at this issue and would not necessarily single out the Court as having a particular motivation in the work it does. I think the issue is that many of the legal frameworks it works with are pretty vague but contain some pretty big signposts about greater European integration. If you have a big signpost that says more Europe and laws and principles that are quite vague, the Court will interpret those in a way that delivers more Europe. I have an issue with that and, particularly in the justice area, I do not want to see that happen, which is why I am mighty glad we have the optouts for some of the measures that are there right now and why we have to make sure that there are no back doors that can enable the justice area to expand, come what may.

Q70 Mr Clappison: You and the Home Secretary have answered, if I may say, the Committee’s questions with great care, but the longer I have listened to you, the more I have begun to wonder why on earth we are signing up to any of it at all. You were asked, for example, in some detail earlier on about the information that you had given the Committee and the House in the Explanatory Memoranda and so forth. You said that one of your concerns was that you did not want to Europeanise our system of justice, but that would apply to everything we are doing here, would it not? Can I suggest to you that there is a consistent position here? If you are worried about Europeanising our system of justice, which means having substantive criminal law made by the European Union, with the Commission suggesting what those laws should be-and if you are worried, as you said you were, about harmonising criminal penalties or harmonising criminal procedure, which has already begun-surely there is an honourable and consistent position. I know the position of the Government, which I fully accept, but there is a position that would say: "Don’t let’s sign up to any of this at all, and let’s make alternative arrangements where we need to in the field of cooperation."

Chris Grayling: Mr Clappison, you know my views, but if I look at the list, the Prisoner Transfer Agreement is a nobrainer. I want to be part of the Prisoner Transfer Agreement; it is a good idea. It would be pretty difficult, or certainly very complicated, to replicate it in any other form. I want to see far fewer foreign national offenders in our prisons. This is, I hope-touch wood-as it becomes rolled out across the European Union, a very good mechanism for us to start to properly sort that problem out. There are very real examples of things in my area, and I know there are in the Home Secretary’s as well, where we look at them and, whatever sceptical eye you may place upon them, it is in the national interest to be part of them.

Q71 Mr Clappison: I appreciate very much what you say. I understand that, but intergovernmental cooperation was where we were. We have moved on from that, because that hill was demolished and in its place we have the Treaty of Lisbon creating European Union jurisdiction and European Court of Justice jurisdiction over the field of what they call freedom, security and justice.

Chris Grayling: At the moment, as long as we do not see back-door changes take place, we have the best of both worlds, because we can take decisions in our national interest, which is what we are doing here. A separate but related case in point is that the Commission is currently proposing new rules on bankruptcy, so that businesses operating across borders have better protection if a supplier or whatever in another country goes bust. On the whole, that is a good idea, as long as it does not replace national, incountry bankruptcy laws. The ability to facilitate a process where there is a crossborder bankruptcy seems to me to be quite sensible.

Mr Clappison: I welcome the vigilance that you and the Home Secretary have expressed in this area on curbing increasing European jurisdiction.

Q72 Chair: On that very point, if I may, we know that you have tabled amendments to part 1 of the 2003 Extradition Act, raising questions about compatibility with European law, that implement the European Arrest Warrant Framework Decision as part of the AntiSocial Behaviour, Crime and Policing Bill. These will include a test of proportionality and a test of whether decisions to charge and try have been made in the issuing state. Although many consider such tests to be welcome, they do not form part of the Framework Decision and so are not agreed at the European level, which is somewhat consistent with the philosophical point that was put forward by the Lord Chancellor and the Justice Secretary. In relation to the second test, what criteria do you or your legal advisers believe a judge will be expected to apply to continental systems of justice in deciding whether or not a person is to be tried? By all means do ask your legal adviser if he would like to comment on that.

Mrs May: I may very well do, Chair. You are talking about the situation in which the judge is asked whether it is appropriate for an individual to be extradited-whether the expectation is that an individual will be charged and tried, or whether this is just a request for an EAW in order to be part of the investigation and they do not have sufficient evidence to be able to charge. We are clear that there may be some circumstances in which the position in the other member state is such that they require a physical presence. That has been accepted in what we have set out, but I would have hoped that the intention of this was quite obvious in terms of the way that it is going to operate.

Q73 Chair: Intention is one thing; the legal consequences are the other. The question is-and this is the nub of this issue-whether or not it is the view of the Government, as advised by its legal advisers, that if and when these matters were to be referred, for example, to the Supreme Court and/or to the Court of Justice, the decisions taken in Westminster as a result of amending the Bill in the way you have would prevail. The real question, therefore, is one of competing jurisdictions. The question is whether or not, under sections 2 and 3 of the European Communities Act, we would end up having to say we had agreed something that had been accepted by the European jurisdiction, or whether in fact the Westminster jurisdiction, as applied by your amendments, would prevail. It is quite a simple point.

Mrs May: Yes. We believe that we are in the position where, in passing these, we will then see what we are doing prevailing in relation to the ways in which these matters are treated. It varies according to the amendment we are making, but there are already some other examples within the European Union of member states that have taken action to deal with some of the issues that we are proposing to deal with in our own legislation and, so far, that position for those member states has been unable to prevail.

Q74 Chair: Just before Stephen Phillips comes in, have you discussed these two amendments with other member states, and what are the views of those member states?

Mrs May: We have indicated to other member states the amendments that we are intending to put through. We had started some discussions with other member states at an earlier stage as to whether it would be possible to reopen the framework directive on the European Arrest Warrant and perhaps make the changes through that, and we will continue to discuss the overall shape of the European Arrest Warrant directive. However, it became clear that, if we wanted to make some changes within the timescale that we wished to operate, it was easier to do it within our own legislation, but we have alerted other member states to what we are doing within our own legislation. If you look at an issue like proportionality, that is a fundamental issue within EU law, and there are other countries, like Germany, for example, that already exercise discretion in relation to proportionality. Hence, the current evidence is that, yes, it would be possible for us to put this into law in the UK and then be able to operate on that basis.

Chair: Of course, some other member states have a rather different legal system, and the whole other problem that we are addressing at the moment is this question of trying, as it were, to squeeze into the European jurisdiction that is provided, and also this question of optouts and optins and the legal framework in differing systems, which may turn out to be incompatible and on which no doubt the European Court would claim and assert its ultimate jurisdiction. Perhaps I could ask Stephen Phillips if he would be kind enough to ask a question on this.

Q75 Stephen Phillips: I really wanted to follow up on the point I think you were reaching in the answer you just gave, Home Secretary. You know I sit on this Bill Committee, and we may or may not have caused you some difficulty in the past, I do not know. If these amendments are tabled at Report stage-I think they have been tabled-and if they are passed, what effect is that going to have on the ability of the UK to opt back into the framework agreement? The Commission is likely to say, is it not, that the conditions of participation have not been fulfilled and, therefore, we cannot opt back in?

Mrs May: No. We do not believe that will be the position. We believe this does not alter our ability to opt back into the framework decision. As I have indicated, there are other member states that have already taken action in relation to the issues that we are proposing to take action on and are within the framework directive, and there has been no difficulty.

Q76 Stephen Phillips: What has the Commission said about these amendments that you are putting forward when the Bill returns to the House next week?

Mrs May: The Commission has not given us any negative view on these amendments.

Q77 Stephen Phillips: Your view is based purely upon your own internal legal advice rather than any discussions with the Commission.

Mrs May: Obviously, we have our own internal legal advice, but we also have looked at the examples of some other member states. For example, I understand Ireland has a system in relation to the assessment on charging and trying, and the Commission has accepted that. Therefore, I see no reason, if it is accepted for one member state, why it would not be accepted for us. As I have said, proportionality itself is a fundamental issue within EU law. There are other member states that do this-Germany already uses proportionality as an argument in making decisions in relation to whether or not it fulfils European Arrest Warrants, and that has not been brought into question.

Q78 Michael Connarty: You had some discussion earlier with a colleague, Mr Davies, about the possible consequences of criminals escaping. I have had the pleasure of being part of the Police Service Parliamentary Scheme on two occasions and spending three or four days with Europol as part of that, and I was very impressed by it. Of course, at the moment, the senior officer is, in fact, a British police officer. The question is: if the UK does not opt into revised Eurojust and Europol proposals, do you see difficulties with the UK continuing to participate in these agencies on the basis of the existing measures, which will have been repealed for all other member states as a consequence?

Mrs May: On the Europol measure, we are proposing to opt back into the main measure, which would enable us to be members of Europol on the basis that we are at the moment. We believe that is the measure that would be necessary to enable us to do that. The UK is the second biggest contributor of information into Europol. We are a significant member of Europol, and we believe that is the right thing to do.

We have, of course, taken a slightly different view in relation to the new Europol, if I can describe it as such-the Commission’s proposals on Europol for the future. We have decided, and Parliament has confirmed this, not to opt in at this stage. We will still be part of the negotiations and we will then take a decision, when the exact shape has been finalised, as to whether to opt in. We have done that because the proposals the Commission has brought forward in two particular areas give us rise for concern. That is, first, in relation to the mandating of data sharing. We believe there may be issues in relation to personal information or national security matters where we would not wish to be mandated to share data. The other issue is that we do not think it right that Europol should be able to mandate British police forces and British police officers on what they do. Through negotiation, we will be aiming to ensure that is not part of the final proposal that comes through in relation to Europol.

Q79 Michael Connarty: You are indicating that Europol is a red-line issue that you will not cross-these two things you said about the future of Europol.

Mrs May: Those are the bases, and there was the issue about the merger with CEPOL, but that has probably slightly gone into the background anyway because of other member states’ having concern too. Those were the three issues that we have said are concerns with the Europol that is being proposed by the European Commission. Obviously, in the process of negotiations, it may be possible that other issues will be raised or suggested that we would also have difficulty with, but at the moment those are the key issues.

Q80 Michael Connarty: We will have a full Explanatory Memorandum and will look at it through the scrutiny process in due course, I am sure. What about Eurojust?

Mrs May: I am very happy to have a conversation with you about the Europol proposals at any time you wish.

On Eurojust, we think it is right to seek to rejoin the measure that it currently is, due to the benefits that it gives us in dealing with crossborder organised crime particularly, because it is able to help in the coordination of investigations. Eurojust did play a role in, for example, if you remember, investigating the murder that took place in Annecy in France. A joint investigation team was set up, but Eurojust was part of the initial process in doing that. We think that in terms of the existing measure, there are some benefits for us from being in. However, the Commission is proposing a new Eurojust measure. We have been very clear, and I believe I am right in saying it was in the Coalition Agreement, that we will not join anything that is suggesting a European public prosecutor’s office.

Q81 Mr Clappison: Home Secretary, would you turn your face against anything that gave a European body, whether it is Eurojust or a European public prosecutor’s office, the right to initiate criminal prosecutions in the United Kingdom?

Mrs May: We believe that it should be for bodies here in the United Kingdom to be able to make decisions as to whom to investigate and charge here in the United Kingdom. Of course, there are circumstances in which our police, for example, will be operating on a crossborder basis and decisions will be taken in conjunction with others as to what approach is being taken. However, in terms of prosecution, here in the UK we are very clear that prosecutors take independent decisions.

Q82 Stephen Phillips: The motion that the House passed essentially endorsed the Government’s position of exercising the block optout, but of course no view was expressed on the measures that the Government proposes to reenter. Would it not be clearly sensible for the House to express a view and for the Government to obtain a mandate from Parliament before embarking upon formal negotiations with member states and the Commission?

Chris Grayling: It is a difficult one. It is a negotiation, and in a negotiation you do not necessarily want to lay all of your cards on the table at the very start. There would be a danger that, if Parliament expressed a very firm view about a list, it would constrain us in having the discussions that you would wish us to have in the national interest with the Commission. Therefore, in my judgment, it is better for Parliament to trust us to negotiate on the basis that it will get the final say, rather than to do it the other way around. We will certainly take into account what the different Committees have to say.

Q83 Stephen Phillips: Is there not a difficulty with that? It may be that there is a difference between the two of you on this. When you made the statement to the House in July, you said, Home Secretary, that "a vote in favour of the Government’s motion will send a clear signal to the Commission and the other member states that Britain is serious about bringing powers back home, and it will strengthen our negotiating position in Brussels". If that is true in relation to something where, in fact, we had a right under the Treaty to exercise a block optout, but the Commission is going to be negotiating with us about the measures into which we opt back in, surely it would strengthen the Government’s hand even more to have the sanction of Parliament at this stage, before formal negotiations commence, rather than waiting. Home Secretary, consistent with what you said to the House in July, you would have to differ from what the Secretary of State for Justice has just said.

Mrs May: No, I do not believe I do have to differ from what the Secretary of State for Justice has said. What I was absolutely clear about, and we were clear about as a Government, was that it was important to be able to give that clear optout decision-in fact, the Justice Secretary referred to this earlier-to the European Union, to the European Commission and other member states, so that they knew precisely where the UK stood in relation to this issue. Everybody knows the nature of negotiations, and if it were the position that we were not able to have flexibility within the negotiations, that would put us in a worse position. It is important that we have made that statement, and that was why that vote was so important. There was a clear statement that we want to exercise the optout, because we did not need to exercise it until the final date of May of next year, but we are able to exercise that optout, so everybody now knows what the position of the UK is and are willing to come to the table on that basis.

Q84 Stephen Phillips: You had a legal right under the Treaty to exercise the optout. You did not need, and the Commission would never have suggested that you needed, either the voice of Parliament or to send a signal, because it was already there in the Treaty. What you do not have in the Treaty is the right to opt back into those measures that we cherrypick, sensible as that may be. I want both of your answers on this. Is it not, therefore, the case that it is much more sensible, from a negotiating position, for the Commission to have had a vote in Parliament that demonstrates a clear will on the part of the United Kingdom?

Mrs May: You are right, of course, Mr Phillips, that the Treaty-

Stephen Phillips: I usually am.

Mrs May: Well, I am going to disagree with the rest of what you said, so we will see. Dangerous territory.

You are right that the Treaty gave us the right to exercise the optout. The point was that up until that vote in Parliament and the Government being able to exercise the optout, there was an uncertainty as to what position the Government was going to take. What the vote and then the exercise of the optout did, which happened, of course, once the House of Lords had also voted on this particular issue, was to say to the Commission, "Here it is. We have opted out. Now we will wish to negotiate with you once Parliament has had the ability to scrutinise these measures. We want to be able to come round the negotiating table with you and negotiate on the measures that we are able to opt back into." The point was that, at the stage prior to the vote being taken, the Commission did not know what the position of the United Kingdom was going to be. What we did was say very clearly, "Here is our position. Now we can start the negotiations." As I indicated and have indicated on a number of occasions in the House, although the Commission had entered into some informal discussions with us previously, they had not been willing to look more seriously at the position of the UK precisely because we had not exercised the optout.

Q85 Chair: Hang on, Home Secretary. Did not the Government’s original motion seek a mandate from Parliament to negotiate on the 35 measures in Command Paper 8671? I was very much aware of what was going on at that time, so were members of the Committee.

Chris Grayling: If I remember rightly, I indicated very clearly in that debate that the Government would of course listen to the full range of suggestions from within the House as part of this process. I have to say, if I might, I think Mr Phillips is perhaps being untypically understated in all of this, because he is underplaying the influence of this Committee, its counterparts in the House of Lords and the two Justice and Home Affairs Committees in expressing the will and the weight of opinion in Parliament. I have no doubt that the report that you will produce will be noted and seen by the Commission as we go into these negotiations and will have a pretty substantial weight in supporting and encouraging the discussions and negotiations that need to take place.

Q86 Chair: We have reached a very interesting point in this exchange. Home Secretary, on 15 July, you stated that there would be a second opportunity for Parliament "to vote on the number and content of any measures that we seek to opt into". That was at column 771. Can you give us a categorical assurance that Parliament will not simply be asked to approve or reject the list proposed by the Government, but will also be able to add to or subtract measures from that list? If it is down, as the Justice Secretary has just suggested, quite rightly, to the UK Parliament to decide these questions if it so wants and on behalf of the voters of the United Kingdom, then it is not just a matter of policy as to whether or not a particular position is adopted; it is a question of whether or not you are trying to fit into our legislative system and our own framework established here in Westminster, albeit under Sections 2 and 3 of the European Communities Act 1972, the question of whether or not EU jurisdiction should ultimately prevail. The question I am really asking is simply this: can we have an assurance Parliament will not simply be asked to approve or reject the list, but will also be able to add to or subtract from that list?

Mrs May: The decision as to the shape and nature of the vote has not yet been taken. As I understand it, we look forward to discussions with and the views of this Committee and other Committees as to what shape that should take. I take it, Mr Cash, that is an opening bid as to what the European Scrutiny Committee wishes to see in relation to a vote.

Chair: I thank you for coming, both of you. It has been an interesting session. There is much more that is obviously going to be discussed. You have other Select Committees to appear before as well. This is an ongoing process, but it is a matter on which this Committee is deeply concerned, and we are grateful to you for coming along this morning. Thank you very much.