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I shall be brief, because there is not a great amount of time left for everybody to contribute and I do not want to repeat the points that have been made, except to echo the noble Lord, Lord Jopling, in his rightly saying that the Commission agreed with the committee in its recommendations. That is not to do down the British Government, but to give a practical illustration of the way in which the whole Union can co-operate, armed as we are at long last-happily, in my opinion; I hope other noble Lords agree-with the treaty of Lisbon. After all its travails, and as it unfolds gradually over the years, I hope that it will make interinstitutional and intercountry co-operation in the new, enlarged Union much easier and more practical. Therefore, to support the institutions when they plan common policies which have been agreed by the sovereign member Governments, both at European Council and Council of Ministers level, is reassuring and should not be a matter of anxiety for the Government.
This being the first of the opt-in debates makes it very important for the House tonight to try to reach the correct solution on this matter. I strongly agree with the recommendation that the Government should complete their opt-in intention, as we understood it to be originally, in respect of both directives, allowing for the obvious reality that, now that directives are put forward under codecision by the European Parliament and the Council of Ministers, there is much authority behind them on each and every occasion. Even if they
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We on these Benches therefore underline the importance of this occasion, which is the first of the opt-in procedure debates. The Government indicated at Second Reading, in Committee and at the later stages of the debates on the Lisbon treaty in 2008, that they wished to be very positive about these matters. We were armed by the important reassurance of the noble Baroness, Lady Ashton, on 8 June 2008, which has been quoted already by both noble Lords, Lord Roper and Lord Jopling. That, too, is reassuring for those who are anxious about this new territory and this new kind of European legislation.
Perhaps I may make a European point without scaring any noble Lords: this is all in the context of our working together and solidarity with fellow member states, which is all the more important now that the Union is much larger and substantial differences still exist at the margins between member states in their internal policy functions on various directives and legislation proposed by the European Union. There is a manifest and enormously strong wish among the other member states and among committed Europeans here that the Lisbon treaty should work effectively. JHA, as was the old title, will be a crucial area, with a lot of legislation now flowing through to reassure the public of each member state that they will have very strict immigration, asylum and refugee policies. However, they will be policies-supported by the useful and helpful brief that we had from the UNHCR-which are fair, too, to genuine refugees and asylum seekers. That is a European point as well as a national, British one. This country is rightly proud of having been an asylum haven for refugees and asylum seekers over the centuries, not just in recent times where there has been some increase in these cases because of various conflicts in the world.
Once again I thank the noble Lord, Lord Roper, and his colleagues and the noble Lord, Lord Jopling, for the excellent report. It strongly recommends that Her Majesty's Government opt in to the second-phase qualification directive and the revised text of the APD. That meets with the practical support outside. For example, without misquoting, I have been told on good authority that many senior police officers in this country and elsewhere are increasingly impressed with Europol and Eurojust and their operations, one of them at least headed by Britain at the moment. They also feel that the practical access that is now applied to those institutions and to this need for opt-in, creating a common field of endeavour and policy framework for all, will make each country's task easier in dealing
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We have noted, too, that the usual channels on this occasion have adhered to a brisk timetable, although someone said that it could have been done a little earlier-I agree. This has been the first example and we had the Christmas break to intervene as well. This ensures that the House has full control and participation in this complex procedure. To conclude, once again these Benches strongly support in all respects the Government opting in to these two directives tonight. I hope when the Minister speaks he will confirm that that is their intention.
8.31 pm
Lord Hannay of Chiswick: My Lords, our debate tonight, as the noble Lord, Lord Roper, the Chairman of the EU Select Committee, has already said with great lucidity and force, marks an important step in the development and strengthening of this Parliament and this House's procedures for the scrutiny of draft EU legislation. This new system for handling opt-ins and opt-outs in the field of justice and home affairs is today being given its baptism of fire.
The new system was put in place as one of the concessions made by the Government during the process of clearing the way for the ratification of the Lisbon treaty. It thus represents common ground between those who supported ratification of the treaty, as I did, and those who opposed it. The challenge now is to make it work effectively.
For that to happen, a considerable acceleration of our procedures will be required at every level: the relevant EU sub-committee to which the piece of legislation is referred; the EU Select Committee; the scheduling of business of the House; and the Government's response to draft legislation so that we know what the Government's overall attitude is and what specific problems they foresee. I hope I am not being too complacent to claim that the sub-committee-on which I serve and which is led by the noble Lord, Lord Jopling, who so clearly introduced its views-and the EU Select Committee have produced their report to the House on these two proposals in a rapid and timely fashion.
As to the scheduling of this debate, I, too, feel, like the noble Lord, Lord Jopling, that it would have been better to have had it before the recess, giving the Government more time to consider the House's view before the deadline for reaching a decision on whether to opt in or out. In future, the responses of those who schedule debates will need to become more prompt if we are not to squander an opportunity to strengthen our scrutiny of EU legislation. Today's debate is better late than never. I am making a point for the future, not looking a gift horse in the mouth. The Government's response to the Commission's proposals has been pretty dilatory. Their Explanatory Memorandum only provided the vaguest idea of the problems they might have with the proposals. If the new system is to work, they will have to do better in future.
Lastly on the House itself, if the new procedures, including the quite separate one to handle passerelle proposals which is not involved tonight, are to work
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The choice that the UK faces on the draft directives for asylum qualifications and asylum procedures is not between whether to accept the drafts as they stand or to opt out. It is whether to join the other member states in negotiating the final terms of the directives, seeking to improve them where we see problems arising or flaws existing, or to stand aside from the whole process of negotiation and leave the directives to be adopted without our having any influence on the final outcome as the price for them not applying directly to us.
It is important to underline this point. In proposing that the Government opt in, the committee and its sub-committee are not for one moment-the noble Lord, Lord Jopling, made this point extremely clear-suggesting that they should accept the draft proposals as they stand, nor are we dismissing or overlooking the concerns that the Government have expressed about their current state, vague and imprecise as they so far seem to be. We are merely saying that we believe that it is in the UK's interest to address these concerns at the negotiating table, rather than walking away from it and relying on the pretty illusory comfort blanket of an opt-out over our heads.
Asylum in an EU where movement between member states is more and more difficult to control is an area of policy that matters to us, whether the specific provisions apply to us or not. We need to be there at the table helping to shape EU policies. If the Government were to decide to opt out, there is a further legal complication, to which the noble Lord, Lord Jopling, referred, and to which we drew attention in the context of an earlier directive on reception conditions. It is that when we opt out from a new directive that covers matters dealt with in an earlier existing directive to which we have opted in, an anomalous and disputed outcome arises. Both your Lordships' committee and the Commission, when they responded to our report on the earlier directive, take the view that in those circumstances the earlier directive to which we had opted in will continue to apply in this country, while the Government's view is that it will not. This disagreement is only too likely to cause confusion and perhaps ultimately to give rise to litigation before the European Court of Justice. It is not the basic reason for our recommendation that the Government should opt in to these two directives, but it increases the potential disadvantages if we were not to do so.
While this is the first occasion on which the House has been required to operate a new post-Lisbon procedure, it will not be the last. It is therefore the beginning of a process, and it will set precedents for the future. Above all, it will begin to demonstrate whether we can put to good use the increased role that the Lisbon treaty provides for national parliaments to have their say on draft EU legislation. We therefore need to get off on the right foot, so I very much hope that the House will approve the Motion as tabled by the noble Lord, Lord Roper, and, in so doing, will make clear its view
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8.38 pm
Lord Avebury: My Lords, as every noble Lord who has spoken so far has said, this report is important not only because it deals with the UK's response to proposals for a common asylum procedure and uniform status of subsidiary protection adopted under the treaty of Lisbon, but because we are embarking on the first occasion of a completely new procedure in this House, which the Government undertook to introduce to enhance the scrutiny of justice and home affairs opt-ins.
The position is that legislation on these issues, including any that covers border checks, asylum and immigration, is subject to the UK opt-in and, in the case of these directives, which deal with the criteria for being treated as a refugee or a beneficiary of subsidiary protection, and with procedural standards for granting and withdrawing international protection, we have, as the noble Lord, Lord Hannay, has pointed out, very little time left before we have to make a decision. In practice, if the views of the House are to be taken into account by the Government, they need to be made aware of them, as the committee has pointed out, five weeks before the deadline. One hopes that they have been working on the assumption that the committee's recommendations would be approved, as the Motion before us proposes.
If we decide to part company with the rest of Europe on asylum, the complications are formidable. For example, as a refugee acquires the right of free movement, he might be able to claim asylum in France and then move to the UK even if he could not have qualified under the UK rules. The UNHCR's view is that the EU's effort to codify a legal framework applicable to all member states has great value and it also believes that the recast procedures directive would help to reduce the extraordinary variations in recognition rates between one country and another, exemplified by one nationality where the rates went from less than 1 per cent in country A to 50 per cent in country B.
The noble Lord, Lord Hannay, drew attention to the problems arising from the Government's decision not to opt in to the receptions directive, which deals with standards applying to conditions under which asylum seekers are received in member states. I would add to what he said because of its cross-references to the Dublin regulations identifying the state which has jurisdiction to examine and decide on asylum applications. More generally, the committee pointed out the legal conundrums that can arise when the UK has opted in to a measure and then does not opt in to a measure that repeals or replaces it, as with the receptions directive. The Commission agreed with the committee that where a measure was repealed and replaced, as the receptions directive was, and the UK did not opt in to the new version, the original version would continue to operate here. The committee asked for the Government's response to that view and the answer from the Minister, Meg Hillier, arrived after the report had gone to press. However, the Government disagree with both your
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There is now a similar problem with the qualifications directive. The committee says that the objections that the UK has to, for example, a wider definition of family members can be dealt with, as the noble Lord, Lord Jopling, explained, in the negotiations on the final version of the directive. I would add that ILPA and the AIRE Centre say that the definition in the directive reflects our existing practice, which is based on Article 8 of the ECHR and the UN Convention on the Rights of the Child. Our policy, which is to be found in paragraph 349 of the Immigration Rules, taken with the asylum policy instructions on dependants, actually defines family members more broadly than in the directive. In any case, as the noble Lord, Lord Hannay, said, if we opt in, we can play a full and influential part in the further negotiations and we will have a vote in the final decision. Not opting in would reduce us to mere observers, with less weight and no vote. Again, if the rest of Europe admits family members outside those who are qualified under English law, they and their descendants would be free to move here in the end anyway.
On the procedures directive, the Government object to Article 34, which requires that if an applicant from a "safe third country" submits reasons for considering that, in his particular circumstances, the country is not safe, they have to be considered; whereas in our asylum rules, that application would be rejected as "manifestly unfounded". They also say that the six-month time limit for initial decisions on particular applications is too onerous, although the UKBA had got the average down to seven months, and its aim is to reduce it to two months, with a maximum of six as in the directives. All they need to do in the negotiations then is to insert a proviso that in a few defined awkward cases- for example, where an applicant's true identity or nationality cannot be determined- there could be a procedure for an extension, which would be welcome if it brought these cases under parliamentary scrutiny.
The UKBA's asylum statistics do not analyse applications by the time taken to reach the initial decision, but as the National Audit Office has said, there are big savings to be made in support and accommodation costs if the process is speeded up. Compliance with an EU obligation would be an additional incentive to prompt initial decisions. However, the UKBA has made impressive progress in reducing the average time from 22 months in 1997 to seven months in 2007 and it says that its aim is to get it down to two months with a maximum of six. Again, these are matters that can surely be ironed out in the further negotiations on the directive and not a justification for sabotaging the goal of a single, united asylum system throughout the whole of Europe.
Finally, the committee points out the extra difficulty that the UK faces if it does not opt into the procedures directive. The measures in the common European asylum system are intended to form a coherent whole with cross-references between them, and if we sign up to some and not others, we will get into an appalling legal muddle. The Minister has no doubt read the
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8.46 pm
Lord Hodgson of Astley Abbotts: My Lords, I should like to address a few words to the procedural implications of what we are doing for the first time tonight, and then a few words on the actual issues under consideration in the directives. Membership of your Lordships' House gives one many interests and pleasures, not the least of which is the opportunity to serve under the chairmanship of my noble friend Lord Jopling, whose felicitous introduction to the subject tonight has illuminated the debate very well indeed.
Another important and fascinating opportunity for me has been to be part of the Lord Speaker's outreach programme. It enables one to visit groups and many schools to discuss and explain the role of your Lordships' House. I make three or four visits a year to maybe a couple of schools each day, and I never fail to learn something from those events. They are like a mirror held up in which you can see reflected the House of which we are all a part. I mention this because too often the reflection is formed by the single impression of the House at State Opening-predominantly elderly white males involved in a ceremony that seems, in the graphic words of a young man in Birmingham before Christmas, to belong to King Arthur and the Knights of the Round Table. One is able to put them straight about the diverse make-up of the House-plenty of women and representatives of religious and ethnic minorities-and also to explain the way that the procedures of your Lordships' House have evolved, and continue to evolve, to reflect the changing nature of our society, and to say that in many ways, despite appearances to the contrary, it is arguable that the House has moved more with the times than the other place. But, and it is a very big but, one is always conscious that, to be seen to be relevant by the generation that blogs and twitters, we need constantly to re-examine the efficacy of our procedures. I do not for a moment recommend a rolling programme of change for its own sake, but there is a need for a continued, careful, considered and searching analysis of how the House can carry out its tasks more effectively.
Earlier this year I had the privilege of taking part in the first Bill under another new procedure, that introduced for Law Commission Bills, when we considered the Perpetuities and Accumulations Bill. Our ability to hold evidence sessions during the passage of the Bill with the Minister-on that occasion the noble Lord, Lord Bach-present was, in my judgment, a much better way of getting good legislation on to the statute book. It was a mixture of technical, expert and political views received and acknowledged before the jelly had set. That is why I think the procedure we are using for the first time tonight is so important, because this procedure offers the chance to make
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I have to join the noble Lord, Lord Roper, and my noble friend Lord Jopling in the quibble; because to be of value, debates such as this one need to be held in time to influence the Government's thinking. As the noble Lord, Lord Roper, has told us, the deadline for a decision on whether to opt in must be taken before 23 January, which my diary tells me is Saturday week, and we are at Tuesday evening now. If we are going to implement this new approach effectively in the future, the Government need to find time earlier in the three-month process or else the approach will be stillborn. To change my metaphor swiftly, I hope that when the Minister comes to wind up he will tell us whether this particular horse has bolted.
This takes me to my final comment about the procedure. I said earlier that reforms to your Lordships' House needed to be careful and considered. I understand that the Procedure Committee will consider this reform again at a meeting on 2 February. I very much hope that they will endorse it, but-again it is a big but-it is for that committee to take the final decisions, because it can see the whole picture. It sees the whole canvas, not just the corner of the canvas that we are discussing this evening. Only with its endorsement are we likely to carry the whole House with us on this important step.
I turn briefly to the specifics under review. It must surely be critical that the Government find a way to align the legal views of the Home Office and the Commission on the interrelationships between these two sets of directives, and indeed future sets. The most urgent policy objective must be to reach agreement on whether the second directive does or does not repeal the first. Without this cornerstone agreement, it is hard to see how further useful discussion can take place on the other issues raised by the directives themselves. I certainly accept some of the concerns that the Government have expressed, particularly those in respect of the Asylum Procedures Directive. How to give the most effective voice to these concerns on a European stage is an important issue. I look forward to hearing from the Minister whether he believes that these concerns can best be addressed by withdrawal, as my noble friend Lord Jopling said, which failure to opt in would represent, or by negotiation from within. His summary of that decision will be very interesting, and I am sure the whole House awaits it with eager anticipation.
The approach we are using for the first time tonight is an important one, and I hope the Procedure Committee and then the whole House will endorse its use. Inter alia, it will provide a useful way for the Government to get out of the knots into which they have tied themselves on this important issue.
8.52 pm
Lord Wallace of Saltaire: My Lords, this morning I got down from my shelves the seventh report of Sub-Committee F of 1998-99 in which for the first time we addressed Schengen and the United Kingdom's border controls. It states:
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"Weaker United Kingdom influence over the development of European policies will mean that such policies will reflect the preferences of others, and fail to take into account particular United Kingdom concerns".
Well, we have come a long way from that. We are facing the possibility of the United Kingdom marginalising itself yet further in a developing European common asylum policy, and also tying ourselves up in an area in which there is a deliberate lack of clarity.
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