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I begin with what the Lisbon treaty seeks to do. The first and most important thing is that nothing in this treaty affects the retention of our frontier controls. I would argue that FRONTEX, with the control across the European Union, adds an extra degree of security for our borders, but we are very clear that the control of our borders rests with this country. The opt-in which we currently have for asylum and immigration is retained and extended to cover the whole of justice and home affairs. That means that we have the right to choose across the board whether we participate in the measures around justice and home affairs. We do not opt in to measures that are inconsistent with our policies, particularly on border control, or against our national interests. That remains the same under the new treaty. But as the noble Baroness, Lady Ludford, said—and I know that the noble Baroness, Lady Hanham, agrees with her from her speech and from the work that she does—there is an important aspect of co-operation across the European Union that is in our interest and to the benefit of the United Kingdom. Most of the transit routes to the UK for illegal migration and people traffic lie through the territory of EU

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member states. Having stronger external borders and higher standards on issuing visas reduces the risk of illegal immigration into EU territory. As well as strengthening its external border, the European Union works with the source and transit countries to try and tackle the root causes of migration and stem the flow of illegal migration into the European Union territory. On that there is no disagreement. These are important ways of co-operating.

Specifically on Amendment No. 3, co-operation across the European Union is not new. It has been around since Maastricht and it has helped the UK to tackle illegal immigration more effectively. We share a common interest and work with our EU partners on immigration and asylum policy. We retain the right to opt in to measures within three months of publication, including amending measures, and we can ask to opt in at the end of the negotiations on those measures should they change sufficiently to become part of the UK’s interests. I have already indicated the dangers of going down that road, but it does exist for us and we should recognise it.

In relation to Article 77 of the treaty on the functioning of the European Union, which is about the border controls aspect, stronger external borders and higher standards will enable us to tackle more effectively illegal immigration into the territory. In Article 78 of the same treaty on asylum, we have been active participants in the work towards a common European asylum system, which benefits the UK by setting minimum European Union standards in relation to the treatment of those who seek asylum. That has the effect of helping to reduce the pull factor to the United Kingdom and it also helps to ensure that the European Union is a safe haven for those who are genuinely fleeing torture and persecution.

The noble Baroness, Lady Hanham, referred to the issues around Dublin and the benefits that we have had of the regulations on Eurodac. Those are cornerstones of that common European asylum system. They allow us better to identify and return failed asylum seekers—asylum shoppers, as they are known—or those who have been proved to have transited through other member states and moved around the European Union making multiple asylum claims. Once identified, they are transferred back to the member state where they first sought asylum. That has brought massive benefits to the UK. As the noble Baroness said, a number have been returned. Since 2004, more than 6,000 failed asylum seekers have been returned to other member states—100 a month. It is a funny terminology, but that makes us a net beneficiary of this system. We do not have to consider the claims because they are dealt with elsewhere, so there are huge financial savings. We reckon that this saves the UK about £8 million a year, mainly because we are not detaining people. So financially and in many other ways, participation is in our national interest and therefore to be welcomed.

We have not opted in to directives on legal migration, as the noble Baroness, Lady Ludford, said, because they are not consistent with our immigration control policies and could put pressure on our border controls. European Union measures on legal migration concern the conditions of entry and residence of third-country

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nationals and the definition of their rights of movement and residence. They do not concern the number of third-country nationals to be admitted. For the sake of clarity, Article 79(5) of the treaty on the functioning of the European Union says:

Article 80 of the new treaty is about the fair sharing of responsibility between member states and policies that relate to border checks, asylum and immigration. It relates to the existing articles of the EC treaty and is about measures to promote a balanced effort between member states in receiving and bearing the consequences of receiving refugees and displaced persons.

Amendment No. 4 is about the effectiveness of the external border controls of other member states and we would argue that there are rigorous procedures in place in the form of the Schengen evaluation process that assesses the security of the external borders of EU member states. I am one of the few people I know who have been to Schengen. I have even heard the Schengen anthem which was played in my presence. Schengen is a very small village that happens to border three countries and the original process took its name because of that. Sadly I even remember when I went to Schengen. It was 2 June 2005. Noble Lords should not read anything into that about joining Schengen. I just happened to be there. We attend meetings of the Schengen evaluation working group and we get its report. Those reports are important because they underpin the efforts we are making to strengthen our external borders. The Schengen states do a thorough evaluation of the countries which apply to join the system, such as Bulgaria and Romania, before deciding whether to lift border controls. We cannot prevent the rest of the European Union lifting their internal border controls.

Lord Wallace of Saltaire: My Lords, I simply ask for information. I recall visiting NCIS some years ago and meeting a number of British police officers who had taken part in inspecting external border controls in other states. Do the British participate in these external border inspections?

Baroness Ashton of Upholland: My Lords, indeed they do. That is an important aspect of the way in which the UK Government make sure that we are involved appropriately, without giving up our own border control, which is of enormous importance. We are not seeking to do anything, nor would we, that would in any way impact on our right to maintain our own frontier controls and security. We recognise the enormous benefits in participating as we do and supporting colleagues in the European Union who have, through their border controls, made it more difficult for people to enter illegally, and easier for us to collaborate and co-operate to try to deal with concerns that the Government have and that noble Lords quite rightly raise.

On Amendment No. 5, we do not oppose any of the measures in the new Article 78. During the convention on the new constitution, we proposed alternative language. We did not oppose the article we see reflected in this

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treaty but wanted to propose a simplified article on asylum, focusing more strongly on the purpose of asylum co-operation. However, we accepted the outcome of the negotiations as part of the overall package; there was nothing of substance within that. This is about emphasis or, indeed, language. That package includes the opt-in, of course, which has operated for nearly nine years in this area. As I have already said, for all JHA measures, we will have the right to decide whether we wish to participate.

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That sets out the essence of where we are. To recap, there is a long history of collaboration, co-operation and, appropriately, clear retention and control of our own borders and security. There is also collaboration on asylum which works effectively, particularly because of Dublin and Eurodac, and which has enabled us to return people. In so doing, we have the common standards that prevent the pull to the UK and ensure that people are treated appropriately.

On the comments of my right honourable friend Geoff Hoon on the European Court of Justice, and the long negotiations to which I was party on whether there could be references from courts lower than the House of Lords in identifying what the ECJ could interpret for us, two things have changed to make us comfortable with it. First, there is an expedited procedure. Our concern was that cases would be sent off to the European Court of Justice and could take a considerable amount of time, which was not appropriate for those seeking to sort out their status as quickly as possible. The expedited process will enable us to do that quickly, and that major concern has therefore disappeared. Secondly, we have had discussions with the senior judiciary to ensure that cases of merit go to the European Court of Justice, and any that are not do not do so. The process will not therefore become a way of slowing down cases by sending them off to Europe. I do not suggest that that could have happened, but that was our concern. We are now comfortable that that will not happen, and therefore have no concerns about it.

Finally, noble Lords have expressed concerns about social security issues for those who come here. Of course, we have a separate break on social security issues. That means that any member state worried about the impact on social security can take that decision to the European Council, where it is made by unanimity. I hope that I have answered in as much detail as I can all the points raised in the three amendments, and that the noble Baroness will feel able to withdraw her amendment.

Baroness Hanham: My Lords, I am not going to press this amendment to a Division, which is just as well. Listening to the noble Baroness, Lady Ludford, I can see that we would be in the usual position where she would not support anything I have proposed. That has been pretty well the position throughout discussions on this legislation.

As I said, this is by and large a probing amendment. Perhaps one of the most important aspects of borders and asylum is security. We discussed this at length

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during the passage of the UK Borders Bill when our own border agency was set up. It was clear then that the security of our borders was extremely important. We want to be absolutely sure that we are not blown off that course in any way.

The noble Baroness, Lady Ludford, referred to FRONTEX. My understanding was that one of the problems of being excluded from it was that it now does not have access to our intelligence, and vice versa. There are problems of a lack of co-operation. We do not disagree about co-operation, but we still have anxieties about the amount of co-operation and force that will come about.

I am grateful to the Minister for her typically clear reply. She probably did not answer whether the Government had any intention of opting out of the reception conditions directive, but perhaps she could let me have that in writing; that would be helpful. With all the other aspects we have discussed, we will remain sceptical as to whether, if push comes to shove, the lines will hold. That is the great danger that we see which the Minister is trying to be reassuring about, saying that we have everything stacked up to ensure that we can manage our own affairs. Our concern is that we have not, and that there would be occasions when the Government would now find it difficult, under the circumstances brought about through this legislation, to hold the line. If that was the case, we would probably have to come back to it again. For tonight, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 to 11 not moved.]

Lord Hunt of Wirral moved Amendment No. 12:

“(i) any provision that gives Her Majesty’s Government authority to agree to pay, or to pay, any financial penalty imposed as a result of a decision by Her Majesty’s Government not to opt in, or to opt out of, any provision, unless the Secretary of State has given a binding undertaking to Parliament that he will make no such payment unless he has laid a statement before Parliament setting out a schedule of such penalty or penalties and payment has been approved by an affirmative resolution of the House of Commons; and(ii) ”

The noble Lord said: My Lords, of course we need to make progress, but we now come to an amendment about which I feel very strongly. Both I and my noble friend Lord Kingsland have raised this point before in various discussions on the Bill. I am afraid the matter is just too important for us to let it lie.

I am certain that most fair-minded people will share our first-level concern about the possibility that financial penalties may be imposed on the UK for future breaches of European correctness. More significantly, however, this real and present financial concern is also inextricably linked with deeper and wider doubts about how effective our notional opt-outs are really going to be in future.

I recall a number of unedifying tussles when I was a Secretary of State, most notably over proposed limits to the working week. Our European partners tried a

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series of different means to achieve the same ends, repeatedly finding one avenue blocked and immediately seeking out another. It was therefore with great sympathy that I read the proceedings of the European Scrutiny Committee in another place. It has played devil's advocate repeatedly by highlighting the uncertain nature of our supposed right to opt in or out and subsequent doubts about our ability to safeguard our national interests post-Lisbon.

This provision effectively guarantees that financial penalties will in future be levied on the UK if our refusal to opt in to an amended measure makes the existing measure inoperable, as a consequence of which the whole package has to be discarded. Ministers will no doubt cling, as the Minister clung last time, to the assertion that the provisions allow only for necessary and unavoidable financial consequences to be charged to the UK, in what they apparently consider to be the most unlikely event of the provisions being implemented. I ask again: how can the Government be confident about this? They are making what I suppose has come to be regarded as the classic ministerial error.

Around the year 375 AD, Flavius Renatus first coined the immortal phrase, “Si vis pacem, para bellum”. The Minister will not, of course, need me to explain that this means if you want peace, prepare for war. Although the contemporary parallel under the amended treaty of Rome is happily less bellicose, the principle is the same.

As a Minister, I learnt that the best approach to European and all other international treaties and agreements is to hope for the best but prepare for the worst. Ministers cling to the optimistic hope but neglect the second half of that formulation—the preparation for unwelcome eventualities—at their and our peril. Where is this infallible crystal ball that gives the Minister such certainty and privileged knowledge about what will happen in the future? For the rest of us, alas, the intentions of our European partners are shrouded in mystery and we therefore seek to reserve our position. Of course, much of this will be contingent on the decision on whether an existing measure is operable or inoperable, and on what the necessary and unavoidable financial consequences may be, but both these decisions will be made by qualified majority voting so we will have no veto whatever over what our European partners decide to do, or over what they might decide we should do.

On the previous occasion I was unable to persuade the Minister, even when I quoted the very emphatic words of the chairman of the European Scrutiny Committee in another place, Michael Connarty. Noble Lords may recall that I quoted his phrase:

I have reread the full transcript, which contained an interesting exchange between the chairman and the Foreign Secretary. That gives me great confidence in the ability of the Select Committee system to test Ministers. After he said, “These are bullying clauses”, Michael Connarty went on to say,

At this point the Foreign Secretary could contain himself no longer and interjected:

The chairman of the Select Committee, may he ever more be praised, said, “Let me finish”. He went on:

I dare say that the Minister will not be persuaded by me and her colleague, the Foreign Secretary, was not persuaded by a Labour Member in another place. However, I would like to hear her at least attempt to explain in clearer terms exactly why these provisions were allowed to remain in.

On the previous occasion we debated this in Committee, I asked the Minister to give examples of situations where these provisions could come into effect. I was minded to take the amendment to a vote but she got up, looked me straight in the eye and said, with regard to examples, that,

At that point I said:

A week went by after that and nothing came in the post. Indeed, my birthday was a week later but nothing arrived. My wedding anniversary was a week later still and there was not even a card, not even a billet-doux. Since then I have heard nothing at all so I await with anticipation what the Minister will say tonight. I beg to move.

Lord Wallace of Saltaire: My Lords, I am beginning to think of the opt-in, opt-out area as rather like the Schleswig-Holstein dispute. Very few people understand it and I am not at all sure that I am one of them. Clearly, it was deliberately designed to be a very obscure area. That is one of the reasons my party is sceptical about the extent of opting-in and opting-out. Indeed, as my question in the middle of the Minister’s previous speech suggested, there are areas where we appear to have opted out but where we are nevertheless taking an active part. I have sometimes wondered very unworthily in the past few years whether this is designed to obscure from the Daily Mail, the Telegraph or the British public how deeply involved we are in all this.

This is a worst-case amendment, as I think the noble Lord recognises. It is a belt-and-braces measure to address the difficulty of dealing with those foreigners across the channel and the possibility that they might somehow outwit the British on occasions, or perhaps that the present Government or any future Government might fall over their feet so badly in trying to do the delicate dance they do between opt-ins and opt-outs and when they are half opting in and when half opting out that they might end up facing this penalty.

My position and that of my party group is that we are participating in an ongoing system. We hope that we are negotiating in good faith. We do not expect our partners in the European Union to double cross us

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and we should not operate on the basis that we expect that. We want to see the whole justice and home affairs area work more effectively. We want to see the United Kingdom participate in that as constructively and as fully as possible. On that basis we do not support the amendment.

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Baroness Ashton of Upholland: My Lords, I am terribly sorry that I missed the birthday and wedding anniversary of the noble Lord, Lord Hunt, but I am sure that I shall find another reason to celebrate with him. I still have the image before me of the unedifying tussles that he mentioned, which must have been a sight to see. I seek to defend myself a little against the accusation that he made as regards not providing examples. I gave two examples on the previous occasion and said that I would come back to him if I could find any more. I have not found any more. The examples that I gave were the best available. I hope that reassures him as it means there are not loads of examples of how the UK might find itself in that position.

I reiterate what I said in the previous debate. The phrase “financial penalty” does not appear anywhere in the treaty. It is not a concept at all. The treaty says that if the UK were to come out of something and that rendered it inoperable—“inoperable” is the first of three words which should reassure the noble Lord because they are clear and precise—it is reasonable that the UK should bear the costs of such action, should there be any. The qualified majority vote would be the process by which a decision on whether a measure was inoperable would be reached. For obvious reasons of collaboration across the European Union it is important that if we have created a situation in which a measure is inoperable, that decision should be reached in an appropriate manner. I believe that is the appropriate way to reach it.

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