The argument against opting out is simple. We may not succeed in rejoining all 35 measures which are agreed to be in our national interest, at least on terms which we would want. When I put that point to the noble Lord, Lord McNally, on 9 July, he replied that of course there would be that risk, but he said that with good will on all sides and with colleagues who want us to succeed, the risks would be minimised.

If we do opt out, I can only hope that the noble Lord, Lord McNally, is right. If there is indeed that risk, as I think that he accepts, in opting out, surely the next question should be: what do we actually stand to gain by opting out; what are the advantages? Here, I find myself in agreement with the speech of the noble Baroness, Lady Smith of Basildon, on 9 July. It is true that the Government could say that they had repatriated, to use that great word, 95 powers taken from us by the European Union, but what would that mean or be worth in practice? How many of those powers have any importance for us today? How many are even relevant today? I am, of course, not referring to the 35, but to the other 95.

The noble Baroness asked the noble Lord, Lord McNally, to give us some details about what we have to gain by opting out of the other 95. As I remember, she pressed him for some figures. At the bottom of column 234, the noble Lord did give some figures. However, he went on to say that, in asking for figures, the noble Baroness was missing the whole point. He said:

“Through today’s Statement, the Government have sent a clear message that we have addressed the problem left by Protocol 36”.—[Official Report, 9/7/13; col. 234.]

With respect to the noble Lord, it was surely he who was missing the point, not the noble Baroness. If we have nothing to gain by repatriating the powers contained in the 95 measures, what on earth is the problem to which the noble Lord referred? What is the point of opting out? It could be said that we might be able to renegotiate the European arrest warrant if we opt out, but why cannot we do that without opting out? What is the objection to our attempting to do so?

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Until, therefore, it is demonstrated that there is something to gain from opting out, there is, to my mind, no problem. The game on which we are embarked—as the noble Lord, Lord Bowness, said on 9 July and repeated again today—is simply “not worth the candle”. That was the view expressed by the European Union Committee at paragraph 274 of its report and it was the view expressed by a group of distinguished academics led by Professor John Spencer last August. I hope that even now the Government will listen to that view and call a halt to this unnecessary and possibly even dangerous exercise in which we seem to be involved.

8.02 pm

Lord Hodgson of Astley Abbotts: My Lords, I must declare an interest, as a member of EU Sub-Committee E, one of the two sub-committees that produced the report that we have been discussing this evening. I also remind the House that I am a trustee of Fair Trials International, which has a particular interest in the operation of the European arrest warrant. Given the lengthy speakers list and the short time available to us, I will cut to the chase.

For me and my noble friend on the Front Bench, judging by some of his opening remarks, one of the fundamental problems that the Government faced in addressing this opt-out decision is the nature of the wording of the opt-out negotiated under Protocol 36 by the last Government. This is its all-in or all-out nature. There is no picking and choosing; no matter how futile, irrelevant or unnecessary a particular measure may be, the totality has to be accepted or rejected.

I was glad to hear from the noble Lord, Lord Hannay, that on reflection he would not divide the House on his amendment. That would have seemed an unwise course of action. First, it would have treated the issue as black and white. As I said, while that construction is placed on us by the wording of Protocol 36, within the areas covered by the protocol the pluses and minuses of the policy issues are much more nuanced. Secondly, while the Government should have responded earlier to the joint sub-committees’ report—I entirely share the view of other noble Lords that producing the response at noon today is really not good enough—nevertheless Members of the House not on those sub-committees should have the opportunity to express their views this evening. That answers the point made by the noble Lord, Lord Richard, about the rationale for this debate. It will no doubt help to inform the Government’s thinking. Finally, as I understand it, this is only the first time round the track, because we will come back for a further debate and discussion as the Government’s thinking and approach to each individual opt-in or opt-out decision become clear.

Lord Richard: My Lords, since the noble Lord quoted me, I thank him for giving way. He says that the purpose of this debate is to help to inform the Government’s views. Why, in that case, is this not a take-note Motion? Why is it framed in the express terms of the opt-out?

Lord Hodgson of Astley Abbotts: If the noble Lord reads the Motion before the House, he will see exactly what it is. It gives Members of your Lordships’ House,

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particularly those who have not participated in the sub-committees’ deliberations, a chance to express their views. That is entirely appropriate.

Lord Hannay of Chiswick: My Lords, earlier in the noble Lord’s speech, he congratulated me on the wisdom of not putting my amendment to a Division. However, he failed to note that the reason was that the Government had conceded both points that were contained in it.

Lord Hodgson of Astley Abbotts: That is true, but it would have been unwise to have proceeded with a black-and-white decision along the lines that we are operating, as I explained.

In the remainder of my remarks, I want to concentrate on just three points. These are the different categorisations of the 130 opt-out decisions that we are looking at. First, there are the 40 or so that are considered redundant or inapplicable. Some noble Lords and some members of the sub-committee have argued that there was no point in disturbing these particular sleeping dogs. I am afraid that I take a more fundamental approach than that. Where possible, one should remove redundant provisions from the statute book. Leaving such provisions extant, however innocuous they may seem at the time, can cause unforeseen problems in the future, as to both applicability and compliance. From my point of view, the Government were right to take this opportunity to clean up the directives in this way.

The second category is of those directives to which the Government seek to opt back in. Primarily, they focus on enhancing the international dimension of the fight against organised crime. It is more than ever a self-evident truth that crime, along with many other activities, has gone global. The European dimension to this global challenge has formed important elements of many reports from your Lordships’ various EU sub-committees. I strongly support decisions to continue with hard and practical measures in this field: the joint investigation teams, exchange of information under ECRIS, mutual recognition of confiscation orders and so forth.

Not all the directives are perfectly formed. I am pleased that, while recognising the value of the European arrest warrant—I entirely share the views of noble Lords who have pointed to its particular importance in the relationships between the UK and the Republic of Ireland—nevertheless improvements can and should be made. These should be in areas such as proportionality, not allowing people to be held for long periods without trial overseas and using videoconferencing to enable people not to have to travel, particularly where the case against them is not as sure as it might be. For these global security matters, we should opt back in and I am glad to see us doing it. If it is in our interests to improve global security, I see no reason why fellow European members should not wish to collaborate with us to ensure that.

Finally, I turn to the third category of directives, to which the Government propose not to opt back in—the most challenging area of our discussion. I am no lawyer, but my concerns as an external viewer are threefold. First, how does one combine into one legal framework cases that emerge from two different legal traditions:

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the investigative approach, followed by most EU member states, and the adversarial common law approach of the UK, Ireland, Cyprus and Malta? Secondly, to what extent does any potential judicial activism of the European Court of Justice represent a challenge to our established legal procedures? Thirdly, what will be the long-term impact of the European Convention on Human Rights, although an entirely separate structure, on the first two? I do not pretend to have clear answers to these questions and I am not sure that many other people do either. In the circumstances, the Government are wise to proceed slowly, to watch developments and to react accordingly. Joining in will surely represent a one-way ticket and I am not yet convinced that the UK should be embarking on that journey.

In conclusion, given the restrictions imposed by the wording of Protocol 36, the Government are taking a broadly sensible approach by, first, removing superfluous and redundant legislation; secondly, by rejoining those directives that help to increase the security of Europe as a whole; and, thirdly, awaiting the clearing of the fog that still hangs over a number of important public policy issues. That is why I shall be supporting the Government tonight.

8.11 pm

Lord Foulkes of Cumnock: My Lords, my old friend the Minister was right on one thing, anyway—the European Union Select Committee’s report is an excellent one. That is why it was deeply disappointing not only that we did not get the Government reply until around lunchtime today but that it is such a flimsy response. It is 22 and a half pages long, most of it just repeating the recommendations of our Select Committee and making inadequate responses to them. In apologising for the delay, the Government have said that it arose to ensure as comprehensive and as detailed a response as possible. Comprehensive and detailed—that is an unbelievable description of this reply. Perhaps the Minister who is to reply could tell the House what detail we had to wait for. What detail could not have been provided many weeks ago?

This is a serious matter. We are talking about the threats of terrorism and organised crime. The Government, in moving in this direction, are putting back the fight against terrorism and organised crime and thus putting citizens in danger in a vain attempt to appease anti-European Tory MPs and particularly the UKIP-ers, as my noble friend Lord Tomlinson said. It is a vain attempt. The Guardian today reported that the first report of the balance of competences review has been published, which is supposed to help to appease the anti-Europeans and UKIP. It has failed to satisfy Mr Farage, the Alf Garnett of British politics, who described it as a,

“futile and cynical PR exercise”.

Perhaps I can say this to my friend the noble Lord, Lord McNally: Mr Farage will never be satisfied. One of my colleagues likened him to Oliver. He will continually ask for more and more, so it is no use trying to appease him.

Over the past five or six hours I have been able to look at the reply to the report. On the balance of competences review, of which we have had the first

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part today, the Government claim that they are two separate exercises. That is complete nonsense. Of course the balance of competences review has a much wider remit, but reviewing justice and home affairs and not completing that until 2014 means that these two exercises are related to each other. Surely there must be some follow-through or cross-over between one and the other.

The response to the report refers to the devolved Administrations and gives a list of all the meetings. In fact, almost a page is taken up by a list of the meetings that have taken place, but what the response omits to say is that as far as Scotland—just one of them—is concerned, the Lord Advocate and the Cabinet Secretary for Justice have grave concerns about opting out of the European arrest warrant without any guarantee of being able to opt back in. The crucial point is that lack of a guarantee of the ability to opt back in. They point out that the European arrest warrant is an important tool to combat cross-border crime; I think that we would all agree with that. So why opt out of the warrant? In its report, the Select Committee said that,

“there are compelling reasons of national interest for the United Kingdom to remain full participants”,

and that,

“we have identified no persuasive reason for the United Kingdom to withdraw”.

The noble Lord, Lord Hodgson, has just said that all these defunct measures clutter up the scene, but given his background I would ask him to take a look at some of the defunct measures that we have in our United Kingdom legislation. There are 10 or even 100 times as many, but we are not spending time clearing them up or repealing them. If they are doing no harm, why are we going through this huge exercise just to get rid of things that are not causing any harm to anyone when we do not know whether we will be able to opt back in to things that are absolutely vital to everyone? The Government say that they are “seeking” to rejoin. The word “seeking” is the important one. The European institutions may “seek” to impose conditions, as the Government have conceded.

The delay also means that we are wasting valuable time, as a huge number of officials are involved in these kinds of debates. The cost is enormous as well. The noble Lord, Lord Maclennan, asked a serious question: if we opt out and then we opt back in, are we then subject to the terms of the European Union Act 2011? Do we have to go through the referendum procedure? The noble Lord, Lord McNally, did not have time to consider it so I do not blame him for not replying, but the noble Lord, Lord Taylor, has had a few hours to do so. He has officials, around five of them, who no doubt are on the telephone to lots of others. I hope that they will come back so that he is able to answer that question.

I do not want to go on for too long so I shall make two last points. I must say that I think that this is a very sad day for the Minister. As I said, the noble Lord, Lord McNally, is a good friend of mine. I ask him to remember the 1970s and early 1980s when he and I were members together of the Labour Movement for Europe, arguing for greater competence and more powers for the European Union. Indeed, he went much further than I did; he went so far as to leave the Labour Party

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and set up a new party with the noble Baroness, Lady Williams, and others so that he could fight for Europe. Where is he today? Where is that Lord McNally now? Where is the Tom of those days? He comes in and reads out verbatim something handed to him by the Tories—his master’s voice.

Finally, I must say that the one person who disappoints me even more than the noble Lord, Lord McNally, is the noble Lord, Lord Hannay. The noble Lord, Lord Hannay, knows more about this than anyone else. It reminds me of the Schleswig-Holstein question. There were three people who knew about it: one had subsequently died, one went mad and the other one was the noble Lord, Lord Hannay of Chiswick, in this case. The noble Lord, Lord Hannay, knows more about this issue than anyone else. He knows—I have heard him say it in the committee—better than anyone the dangers of opting out without any guarantee of being able to opt back in on these vital issues. That is why I am very disappointed that he has been conned by the Government. In all the machinations that have taken place, the noble Lord, Lord Hannay, and his supporters have been conned. The opt-out is bristling with problems. The only way to express concern about it is to vote against the Government today. I urge any Member—not just on this side and on the Cross Benches but on the other side—who has real worries about opting out to take that course of action.

8.19 pm

Lord Elystan-Morgan: My Lords, it is a pure joy to follow the noble Lord, Lord Foulkes, and also to be able to say that I agree wholeheartedly with everything that he has said. I declare an interest as a member of Sub-Committee E of the European Committee.

We are dealing with 130 different measures. Whether that figure is exactly right—whether it is 128 or 132—matters not. We are dealing with a body of measures that essentially constitute a potpourri. There is no family or monolithic consistency to them. They spread over a huge range of possibilities. Some of them are vital to the national interest. Some are highly relevant and useful. Others, at the other end of the spectrum, have fallen into dissimilitude. Many of them have never been relevant at all. Others had only a most minimal and marginal impact upon our interests. If anybody therefore concentrates upon one, two, three, five or 10 of those, one is doing the whole issue a disservice. One can look at them only as a totality. Looking at all of them together and asking where the United Kingdom’s interest lies—whether it is a disbenefit or an advantage to take course A or course B—is surely the only possible way that reasonable, fair-minded and balanced people can look at this situation.

This has now been going on for five years; we have had a long time to think about the matter altogether. It seems to me that the Government can never say that from any point in time have they had an open mind on the matter. If they were able to show that, I would gladly withdraw that serious accusation. However, I do not think that there can be any question of their having looked at the matter in an objective, cool and statesmanlike way and having asked, “What is our duty towards this kingdom in the circumstances?”.

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In fact, there is a howling fallacy in the government case and it is as simple as this. If one looks at the Motion tonight or the matter that was placed before the House of Commons, the Government’s argument is on two levels. As far as 95 matters or thereabouts are concerned, they say nothing in justification of their being ousted for ever. As far as 35 matters are concerned —the ones to be rejoined and readopted—they say that there is a test of the national interest. The question that I very humbly ask the House is: why should the test of national interest be applied to one group but not the other? Why should the test of national interest not be applied to each and every one of the 130? However, that is not the test. In so far as the question of ousting some 95 or so is concerned, the test is a knee-jerk one. It is Europe. We do not like Europe. One can almost hear the words of Cato in the Roman Senate—not “Carthago delenda est” but “Europa delenda est”. That is the clarion call. Europe must be defeated and challenged at every point. That is the real issue.

If one looks at the statements made by the Government over the past few years, it is abundantly clear that there has never been any objective, open-minded approach to the question. Mr David Lidington, the Minister for Europe, in December 2011 made it quite clear that as far as he was concerned all the evidence would be produced, all the discussions would be reported and Parliament would be assisted in every way to come to the most mature and objective conclusion with regard to this matter. Then, on 15 October last year, we had the Home Secretary making clear that there would be a general opt-out—it had to be en masse; there was no other way—but that the 35 would be regarded in the light of the national interest. However, three weeks previous to that, as we have already heard, the Prime Minister had seen fit to speak to journalists in Rio de Janeiro and had said that we would exercise the opt-out.

The situation, therefore, is that the opt-out is a fact and a reality. It is an irrevocable legal consequence once it occurs; but in so far as rejoining is concerned, that is an aspiration. We may be able to achieve that in respect of all 35, but we may not be able to, as there may well be conditions that we will find impossible to accept. There may well be a hiatus. I cannot remember now whether hiatus is a second declension noun and therefore whether “hiati” is the plural, but there may be several hiatuses and it may very well be utterly destructive as far as many institutions are concerned, including the European arrest warrant, Europol and Eurojust and so on. Therefore, a high price may well have to be paid. What for? For nothing at all. The Home Secretary made it clear on 15 October last year that some of these 95 matters never applied to us in the first place. Many were redundant and many were minimal in their effect. What earthly motivation can there be to take a risk just in order to wipe the slate clean of such irrelevant matters?

I believe that the Government are acting here with less than total sincerity and honesty. Somebody asked Cardinal Richelieu, at the end of this life, why he had been so successful in the government of France. He said, “My son, I lied, I cheated, I dissembled, I misrepresented and I swept it all inside my cardinal’s

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robes”. The Government here have hidden a very great deal about what their actual selfish motivation is and swept it all into the silken robes of the union jack.

8.27 pm

Lord Blackwell: My Lords, the change in wording of the government Motion poses me with a dilemma. Although I wholeheartedly support the decision to exercise the opt-out, I have to say that I am not in any position today to want to commit to endorsing opting back in to 35 measures and, in particular, these 35 measures.

Various Members opposite have suggested that the Government were seeking to pander to, as the noble Lord, Lord Hannay, said, the “wilder shores of Euroscepticism”. I am afraid that the Government, in attempting to cosy up to the Europhile cabal, have left the mainstream Eurorealists in the country out there somewhat bemused. It is a dilemma that the Government will have to resolve. I believe that a strong justification is needed to remain in any of these measures, although I know that that goes against the conclusions of the EU Select Committee report. I am normally a great supporter of the wisdom and analysis that comes out of the European Select Committees but I have to say that I was thoroughly disappointed with this report, which started off with the assertion that the committee concluded that proponents of opting out offered no,

“convincing reason for exercising the opt-out”.

If it started with that assertion, it is no surprise that it ended up—

Lord Hannay of Chiswick: I am very grateful to the noble Lord for giving way. If the report started with that, it is odd that the paragraph is numbered 275. The report ended with that because its conclusion was based on a vast amount of evidence and was supported by members of both sub-committees and the overall committee, from all parties and from none. That is worth remembering.

Lord Blackwell: The noble Lord might like to note that the phrase is in the summary at the front. I will explain why I, for one, think that that is a totally incorrect conclusion. There is a strong reason for opting out of all these measures. Maybe there are reasons for opting back in to some of them, but there is a strong reason for starting with the presumption that we should opt out. The mistake that the committee, and I am afraid maybe the Government, made was to look at each of these measures pragmatically, on the marginal basis of whether there was some value in each particular measure. That ignores the fact that every one of these measures has a price, which is the transfer of some sovereignty from the UK Parliament and the UK courts.

There is a bigger issue, which the committee totally failed to address, although I am sure that the evidence was presented. Where measures are transferred to European legislation and European courts, where is the democratic accountability for those laws and judgments that govern the freedom and justice of UK citizens?

Lord Anderson of Swansea: Would the noble Lord not agree that a measure such as the European arrest warrant is not a transfer of sovereignty but a measure of co-operation?

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Lord Blackwell: No, my Lords, I would not agree, because it comes under the jurisdiction of the European Union. A measure of co-operation would be if such a thing were agreed under the European Council, which is what I would certainly advocate. We are talking not about co-operation but about legislation from a European body, and opting in to any of these measures is a one-way, irreversible transfer of the power of this Parliament to legislate on the justice, freedom and criminal acts of UK citizens.

Lord Liddle: What is the point of having parliamentary sovereignty if you cannot use it to catch criminals who take refuge outside our country?

Lord Blackwell: There is no reason why the UK cannot co-operate with other countries to do exactly that. It does not need the European Union to legislate for that. I am going to make progress because otherwise we will be here all night.

The fact is that, once we have opted in, the normal EU legislative processes take over. That means that any one of these measures, however nice or gentle they may appear now, can be changed by the EU legislative process. That means that there will be qualified majority voting on all these measures once we have opted in. The UK will not have a veto, and the UK Parliament will not be able to take a view on whether those measures are just and appropriate treatment for UK citizens because we will have opted in to something where the European legislator can decide on changes to any of these measures by qualified majority voting.

When we pass laws, we have to think not just about how Governments act now but about what future Governments may do. We have very little control over the way in which future Governments in this country may operate, and we have even less control over what may happen to Governments in other parts of the European Union. This amounts, in effect, to a huge Henry VIII transfer of powers out of this country to a body over which this Parliament will no longer have control. This is happening in a vital area of law affecting the criminal justice system and the freedoms and rights of every UK citizen. I cannot see how the UK Parliament can happily stand by and say that we should not opt out of that, and opt back in to things only where there is an irrevocable case that it is the right thing to do.

It seems to me that many of these 35 measures go far beyond what one could justify in terms of benefiting UK citizens without running the risk of democratic deficit. The European arrest warrant has been mentioned many times. Fundamentally, it allows courts outside the UK, by laws passed outside the UK, to determine that a UK citizen should be deprived of his rights and sent to another country to face justice and internment without any UK court having the right to decide whether those laws were just and whether the evidence justified it. I do not believe that any of us can stand in front of a UK citizen and justify that as being in their interest. It may be efficient—dictatorship is efficient—but it is not democratic. The Government say that they have some measures that will ameliorate the worst aspects of that. I am not sure—and this House needs

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to be sure—that those measures will actually stand up against the European Court before we can be satisfied that the European arrest warrant has been dealt with. The same is true of the measure on the mutual recognition of confiscation of assets, where individuals in this country can have their assets frozen and confiscated by order of a court outside the UK without any UK court having the right to challenge the evidence and interrogate whether or not those laws were being applied appropriately.

Europol and Eurojust may sound like good ideas but what may they become? Once they are evolved by QMV over a period of years, what will we have signed up to? We do not know. That is why I believe that we should opt out and negotiate things on a bilateral and multilateral basis under the Council of Europe, where we have the choice that if we do not like those measures, we can pull out and Parliament can legislate. Parliament should retain sovereignty over things which affect fundamental freedoms and justice in this country.

The noble Lord, Lord Richard, asked the Government for an assurance that the word “endorse” in this Motion meant that the Government were committed to these 35 measures. I have to ask my noble friend to give exactly the opposite assurance—that while the Government may go into these negotiations seeking reasonable agreements on these 35 measures, there will be no irrevocable decision tonight that the UK will opt in to them without this House having a much longer and more detailed opportunity to debate each one, and the Government giving us a sound justification for why they thought it was appropriate to remove sovereignty from the British people.

8.37 pm

Lord Davies of Stamford: Well, my Lords, that was the authentic voice of dogmatic anti-Europeanism and Euroscepticism. Clearly, the noble Lord very honestly believes what he said. He is totally entitled to say it and those of us on the other side of the argument can only take comfort from how weak, emotional and, in respect of his remarks about the Select Committee report, footling his arguments were.

I have been enormously struck, as I imagine the whole House has been, by three aspects of the Government’s nature and manner of doing business, which have been thrown into relief by this whole episode. The first is their extraordinary incompetence in evidently not getting any legal advice before they proceeded down this road. Nobody in the private sector would dream of going into a complicated negotiation of a totally new kind, with new risks attached to it, with important partners on an important matter, and not getting appropriate legal advice.

It was quite clear from the embarrassment and evasion of the noble Lord, Lord McNally, when he was asked the question by the noble Lord, Lord Maclennan, earlier that he did not have the faintest idea as to whether or not the procedure proposed by the Government risks triggering a referendum under the Government’s own European Union Act. I hope that the Minister will have thought about this and perhaps got some legal advice by the end of the debate, but the Government

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should have got a definitive opinion from the Attorney-General before they set off down this road in the first place.

Viscount Eccles: Perhaps it may be of some help to say that the Minister who is set to reply from the Front Bench was asked that question earlier today and was able to give a very definitive reply, in a meeting to which all the Members of this House were invited, if they wished to attend.

Lord Davies of Stamford: I am sure that the Minister is very grateful for the defence which the noble Viscount has just given him. No doubt at the end of proceedings the noble Lord, Lord Taylor, will be able to deal with this matter definitively.

The second aspect of the Government’s conduct that strikes me, and I think would strike anybody, is the extraordinary way in which they have treated Parliament. Not to reply at all to a very weighty document produced by two sub-committees jointly, which is unusual procedure in this country, for three months until a few hours before the relevant debate arises, is either almost unbelievable incompetence or discourtesy to the House that borders, frankly, on insult.

This Government like to say that they wish that national Parliaments had a greater say in matters in the European Union. In future that sort of statement will be treated with ribaldry, as hot air—there is another English word that better describes it but it is probably an unparliamentary word so I certainly will not use it. It is quite clear that on this occasion the Government have provided a really appalling example of cynical and dismissive treatment of their own national Parliament and I hope that no other Government in the Union are tempted to follow them down that very bad path.

The third aspect of the Government’s performance is the one that most attention has quite rightly been focused on—the way in which they reach policy decisions and their policy-making procedures. When I was a Minister and was faced with difficult choices, I would draw up a balance sheet of costs and benefits of any particular measure. I would try to weight them to achieve a balance and use that as an intellectual framework for discussions with officials or, where necessary, with colleagues. I was never conscious that I was doing anything remarkable or unusual; I assumed that most responsible Ministers went through a similar kind of procedure either explicitly or implicitly. Not so this Government.

The Motion mentions national interest, but it is quite clear that national interest has not guided the Government in this matter at all. You might assume that if you have 135 measures and you want to opt out of 100 definitively and opt back in to 35, those 35 were in the national interest and the 100 were not, which is why you want to get rid of them. The Government are even prepared to pay a significant price in terms of uncertainty, use of good will on the continent with their continental and Irish partners, and the administrative cost of going through all sorts of elaborate renegotiations, no doubt having to cope with the lacunae and lapses that arise. They are prepared to do all that in order to save the country from being tied to the 100 measures that they wish to opt out from.

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In fact, as has been said this evening, of those 100 measures that the Government do not want to be associated with, not one of them is contrary to the national interest. Some of them are regarded as defunct or unnecessary, in which case they have a neutral significance. They are neither positive nor negative. But some of them are useful, although not dramatically vital in the way that the European arrest warrant or Naples II are really vital to the national interest. However, the Government’s own document, the White Paper—which, believe it or not, I have read through—deals with some of the measures that the Government propose to drop, to opt out of and not to opt back in to. Take, for example, item number 2 on judicial co-operation. The Government’s own document says:

“We judge that non-participation in the network may diminish the ability of the UK to coordinate complex investigations”,

et cetera. So there is a cost to opting out of that, which the Government themselves acknowledge. It is not in the national interest to opt out, it is contrary to the national interest. It is a cost, not a benefit.

The same thing applies, for example, with item number 5 on the exchange of information on drugs. The Government say:

“We judge that there may be a minor reputational risk if the UK does not seek to rejoin this measure”.

It is minor; it is not very important, but it is nevertheless a negative. It is reducing the national interest, not enhancing it, to opt out.

On item number 20 on new synthetic drugs and a warning system, the Government state:

“The UK’s participation in time-sensitive EU wide information about prevalence and harms of new substances enables us to influence EU and Member States’ legal responses, supporting enforcement and judicial co-operation … especially with the role of the internet and use of internal transit countries”.

This is a positive thing that the Government are giving up; it is not negative.

Similarly, on anti-corruption measures at item number 5—they are important, one might suppose—the Government say that given the increasing focus on tackling corruption in public office:

“The costs of membership are minimal and there are some benefits”.

So the Government are again giving up some benefits by their own admission.

Item number 87 is on combating terrorism, which is an important matter. The Government state:

“The offences created by the Decision are a useful standard for terrorist offences and by ensuring other Member States can prosecute relevant terrorist behaviours a more hostile environment for terrorists ought to be created across Europe”.

The Government are again giving up something of positive importance.

On item number 43—the prevention of unauthorised entry, transit and residence—the Government state:

“The framework decision assists with EU-wide enforcement of UK law”.

Surely that is in our national interest.

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On item number 66, on the exchange of information and co-operation concerning terrorist offences, the Government state:

“Continuing to share information is therefore important both operationally and in reputational terms”.

And so on and so forth. There is another one on football hooligans, where the Government say that,

“non-participation may result in some increased costs”.

Again they recognise that there are costs, not benefits, in opting out. I could provide many other measures if I had time.

What all this amounts to is simply that, yes, the main national interest in these measures is secured by opting back into the 35 but by opting out of the remaining 100 we do not add to the national interest, we reduce it. In other words, the Government have taken a completely irrational decision. They incur the costs and risks of this complicated process of opting out and opting back in not to protect this country from some problems or costs but to deny it some additional benefits—if not enormous ones. We all know why they have done so: to buy off the Eurosceptics, and the cost of that is quite easily calculated. First, there are the costs and risks associated with the opting back in procedure; secondly, there are the not insubstantial or non-existent benefits—as I have explained—of those measures that we are now definitively opting out of. That is how this Government take their decisions. National interest has been sacrificed for a purely party political agenda. That is a fact and the Government cannot get away from it.

8.47 pm

Lord Stoneham of Droxford: My Lords, I was also a member of the Select Committee on the opt-out decision, under the wise and thorough chairmanship of the noble Lord, Lord Hannay, and my noble friend Lord Bowness.

It is right at this stage in the debate to remind ourselves what that report said in a number of summary points. There is no detriment to the national interest of not activating the opt-out, no undermining of our common law legal system and no evidence that the Court of Justice of the European Union has been judicially activist or that its rulings set out to undermine the autonomy of member states’ criminal justice systems. It also expressed concern about our own security as a country if we no longer co-operate with the European arrest warrant, Europol and Eurojust. So I certainly started out opposed to using the opt-out, in contrast with my noble friend Lord Blackwell. I welcome the decision of the Government to support not only the 35 articles but also the supervision order that has been delayed by recent discussions. The coalition has arrived at a fair and workable compromise on the justice protocols and I will support the government Motion tonight.

Let us remind ourselves what the Select Committee said about the initial problem, which started in the manifestos of the three main political parties. The Conservatives in their manifesto,

“sought a mandate to negotiate the return of ‘criminal justice’ powers, among others”,

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back to the UK. The Liberal Democrats in their manifesto pledged to:

“Keep Britain part of international crime-fighting measures such as the European Arrest Warrant … Europol … Eurojust, and the European Criminal Records Information System, while ensuring high standards of justice”.

The Labour Party manifesto made no reference at all to this matter, despite the fact that Labour initiated the whole opt-out procedure. I do not know why it did not mention it. Was it divisions between the Blairites and Brownites, or was it simply trying to disguise its own pro-Europeanism? As the noble Lord, Lord Hannay, said, it actually set up a cat’s cradle of the opt-out that we have had to resolve. Sadly the noble Lord, Lord Foulkes, is not in his place but I will certainly not take any lectures from him on fighting the cause for Europe. We left the Labour Party, but it was Labour that gave us the complexity of the opt-out. I cannot accept his judgment.

There are key issues that I hope my noble friend Lord Taylor will respond to. We have to answer certain questions. Can we negotiate the opt-ins to our satisfaction? Can we avoid a gap between the opting out and the opting in? Are we using good time to renegotiate the opt-ins when we could have used it to update and improve the existing provisions? However, it is practical politics—it is foolish not to accept and admit that—which are determining this outcome. There has to be a compromise and we in this part of the coalition believe that this is a firm and solid compromise: we have to use the bricks that we have achieved to consolidate our future in Europe.

8.50 pm

Lord Judd: My Lords, I have known the noble Lord, Lord Stoneham, for a number of years and we have become good friends. I am sure he will not mind my saying that it pains me to see Liberals whom I have respected for their idealism and uncompromising stand on so many things that are vital to our nation going through the process of rationalising and trying to persuade themselves that compromises that they would have condemned out of hand in their days of opposition are somehow acceptable.

I should also like to draw attention to what my noble friend Lord Foulkes said about the letter we received today with the Government’s reply. He drew attention to the disingenuous words about wishing “to ensure as comprehensive and detailed a response as possible”. What the hell is the point of the reply? The reply is there to inform the debate. How on earth can a reply to a serious report, which has been prepared over many months, be taken properly into account in a debate if it arrives just hours before the debate begins? The Government ought to be ashamed of themselves for behaving in this way. We quite understand the tangles and difficulties with which the Government are faced within their own ranks, but this amounts, in effect, to a wanton disregard of the significance and dignity of Parliament itself.

I want to make a couple of points. We have been talking a great deal tonight about the measures—what we will accept and what we will not accept. The measures are not the end in themselves: the measures are means

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to achieving certain objectives. The objectives that I hope we are trying to achieve are the safety and security of the British people in the sphere of crime and, very much, in the sphere of terrorism. The reality with which we are confronted is both that crime has become highly sophisticated on an international basis in our lifetime and that terrorism is, almost without any doubt, where it is most dangerous, involved in international realities.

There is no way that we can protect the well-being, the safety and the interests of the British people by fooling ourselves into thinking that we would be better at doing it on our own—that we may have to make certain concessions to Europe but that we can pick and choose those things that happen to suit us. If we are to tackle this mammoth strategic task for the safety and well-being of the British people, we have to create an understanding and culture in this country that their interests and well-being are inseparably intertwined with the well-being and interests of other people within Europe, and that we must have institutions working within the realms of security and policing that are effective at the international level. If they are not effective at the international level, we shall be trying to put our thumbs in the dyke that is crumbling all around us. It is crucial that we give this leadership to the nation, and the trouble is that the Government are—

Lord Lawson of Blaby: I am grateful to the noble Lord, whom I have known for many years, but he is making a totally false point. Does he not know that there is the most intense and intimate co-operation, for example, between this country and the United States in the intelligence sphere and in other ways, against international terrorism? That is very necessary. These sorts of protocols and directives are totally unnecessary. There will be co-operation with the United States, with Europe and with other countries around the world whatever happens, because we all share the same objective.

Lord Judd: Similarly, I respect the noble Lord who has just intervened, but I ask him to read the reports to which we are referring today. Under the distinguished chairmanship of the noble Lords, Lord Hannay and Lord Bowness, we listened to witness after witness from the front line of this operation saying how badly they needed this European co-operation and how it would be very unfortunate in any way to jeopardise it, because it would not make the work that they were trying to do on behalf of the British people more effective. Read the reports: one expert or front-line worker after another in this operation said that.

I have one further point. What has been so sad in this debate—not the debate today but the one that is going on all the time in Britain—is the failure to distinguish between what is emotion, what is prejudice and what is fact. Because I was so concerned about a particular issue that was receiving a lot of attention about the way in which European institutions made it difficult to repatriate prisoners when they had completed their prison terms, I tabled a Question on the issue. I asked the Government,

“on how many occasions in 2012 they were prevented from deporting criminals who were not United Kingdom citizens following

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the completion of their sentences by rulings of the United Kingdom courts citing Article 8 of the European Convention on Human Rights”.

I would have thought that the answer to that Question would have been pretty central to serious deliberation in a debate of this kind. It is seven weeks since I tabled that Question. Do the Government not keep records? Do they not do any analysis? Why have I had no answer to that Question? It is part of the refusal to face facts that I suspect will not be very helpful to the Government’s case or to prejudice and the xenophobic cause. Why can we not have these facts before us before we try to undertake serious consideration in Parliament?

8.57 pm

Baroness O'Loan: My Lords, I speak as a member of the sub-committee of the European Union Committee and as one who participated in the inquiry that resulted in the 13th report. I do not speak on behalf of the committee.

It is perhaps desirable not to proceed with undue haste in making a decision on this matter. No decision is required until May 2014. The Government are arguing that they need the additional time for negotiations, but it might be wise to contemplate the fact that, as other noble Lords have said, some of the consequences of the opt-out, if matters proceed as indicated, may be less than favourable for the United Kingdom. If the decision is made, on 1 December 2014 the Court of Justice and the European Commission will have no powers in respect of these matters over the UK, but the pre-Lisbon measures will remain in effect in the other member states. If the decision was made, then until—or perhaps unless—we rejoined we would have no access to a number of processes and facilities that expedite the fight against crime and terrorism.

We would cease to have access, as has been said, to the European arrest warrant. We would cease to have access to Europol, led by Rob Wainwright, who has been described by the Home Secretary as doing a very good job as director. We would lose access to the EU judicial co-operation unit, which costs just £360,000 a year and provides centralised facilities for liaison in The Hague. Instead, we would have to have bilateral arrangements with the judiciary in each member state. We would lose our capacity to be involved in joint investigation teams. The Government told the committee’s inquiry into the EU internal security strategy that they considered these joint investigation teams to be a valuable tool, and the Government supported the Commission’s plan to expand their use.

I could go on and on describing the benefits that we would lose if the Government were to opt out, or even to fail to opt back in within a limited period. The Home Secretary said that the Government are acting on the grounds of principle, policy and pragmatism in making this decision. The EU Committee took extensive evidence, as noble Lords have said, from a wide range of witnesses in the course of the inquiry. Overall, the response was one of massive concern about damage to the UK’s interests. I refer the House to paragraph 157 of the 13th report, which states:

“The Lord Advocate told us that he would have ‘real concerns’ if the UK were to opt out of the EAW and the DPP told us that to do so would result in a poorer deal for victims of crime. ACPO …

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emphasised the significant percentage of EU nationals from other Member States that were arrested in London each year and suggested that it would be more difficult to return them to their Member State of origin”.

It also suggested that,

“withdrawing from the EAW would be a mistake and could jeopardise justice and public safety … the President of Eurojust told us that it would make it harder for the UK to tackle cross-border crime”.

JUSTICE and Justice Across Borders stated that,

“criminals would exploit any differences that arose between any different extradition arrangements … and others suggested that it could result in the UK becoming a ‘bolt-hole’ or ‘safe haven’ for criminals … organised crime or terrorism”.

The report concludes that the European arrest warrant is the single most important pre-Lisbon measure and that it is inevitable that the extradition process would become more protracted and cumbersome, potentially undermining public safety.

No system is perfect. International co-operation on criminal justice measures will always require amendment to make them work as well as possible. Even the criticisms that have been made of the European arrest warrant relate mainly not to the warrant itself but to the consequences of people being sent to certain countries in terms of long periods of pre-trial detention et cetera.

Withdrawing from protocols or exercising the opt-out will not enable us to have any influence to improve matters in that respect. In his review of the operation of the European arrest warrant in 2011, Sir Scott Baker concluded that it had improved the scheme of surrender between member states and that broadly it operates reasonably well. He made recommendations and the Government committed to work with the Commission and other member states to improve the situation.

At a time when we are fighting international terrorism with all its devastating consequences for individuals, national economies and the general global situation; at a time when international organised crime is growing rapidly and when levels of people trafficking, smuggling and white collar crime represent a significant threat, there can be no logic in withdrawing from existing arrangements that work in the interests of the UK, even if we hope to rejoin on our terms—something which may not be available to us.

In all the evidence we took as a committee, very few witnesses drew our attention to any specific measures that they considered to be detrimental. The committee concluded:

“We therefore consider that there are compelling reasons of national interest for the United Kingdom to remain full participants in most of the measures … As to the remainder we have identified no persuasive reason for the United Kingdom to withdraw from them”.

We need an extradition process. We need to continue to have access to Europol and Interpol—as the noble Lord, Lord Lawson, says—and other national and international intelligence-handling operations so that we can become aware of suspected threats of crime or terrorism, and so that we can act accordingly. We need the benefits of joint investigations with all their logistical support mechanisms. We need to be able to take advantage of these measures. The Government of course recognise this and state that they will opt back

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in. However, it will not necessarily be as simple as that. As the committee stated in paragraph 223 of its report:

“While in our discussion with the Commission we found no inclination on their part to obstruct or make the process of opting back in difficult, seeking to rejoin particular measures would not necessarily be automatic or straightforward. Either the Commission, or where appropriate, the Council, may seek to impose conditions on such requests”.

The Home Secretary, in evidence to the Committee, accepted that the Commission may make it a requirement that the UK rejoin or opt into a particular measure to preserve the coherence of the totality of the policing and criminal justice measures. The Commission made clear in its evidence that it considers coherence to be a matter of paramount importance.

All this is happening in the context of debate about the current European arrangements and our membership of the European Union. Other noble Lords have spoken quite passionately about that on occasion.

For Northern Ireland and for the UK as a whole, the issue of continued involvement in these measures is critical. There is still a terrorist threat from republicanism in Ireland, north and south. There is also a threat from international terrorism. Today, according to the Government, the situation is that in mainland Britain an international terrorist attack is a strong possibility, and in Northern Ireland a terrorism-related attack is possible but not likely. In Northern Ireland, an international terrorist attack is a strong possibility and a Northern Ireland-related attack is highly likely.

It may be that the Government are relying on the interests of other member states in our participation in these arrangements to force Commission acceptance without undue conditions on the UK’s request to opt back in. I have heard and seen extensive concern being expressed both internationally and within the EU about what the UK is doing and its potential damage not just to our country but to other countries’ interests. However, while the Commission will make the majority of the decisions, the Commission of course comprises commissioners from member states who are required by virtue of their position to act in the interests of the European Union rather than in their national interests. Notwithstanding that, it would be unwise to anticipate that the Commission will simply accede to requests for re-admission. It is surely necessary to ensure that our anti-terrorist, crime prevention and detection operations are as strong as possible.

The biggest number of European arrest warrants to the UK over the period from 2009 to 2011 were from Ireland, the Netherlands and Spain. In Ireland and Spain there are a significant number of terrorist incidents.

Lord Taverne: Five minutes.

Baroness O'Loan: If noble Lords will just bear with me, I am nearly done. Of all surrenders to the United Kingdom, 70% were from those three countries. I am not scaremongering in drawing these matters to your Lordships’ attention. I have lived with terrorism for 36 years. I have worked in many countries seeking to make good the damage from it. The evidence that the committee on which I was privileged to serve received was both compelling and overwhelming. Let the Government take more time to respond and to contemplate the

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consequences of the proposal. It is never wise to act when one does not have a full understanding of the possible consequences of such action. We do not yet know the consequences of what the Government are now proposing.

9.06 pm

Lord Wasserman: My Lords, I hesitate to prolong this debate at this late hour, particularly as I am very much a novice in matters European. I felt moved to intervene, however, because although my experience in European issues is limited, I have had long and varied experience of policing, fighting crime and keeping communities safe on both sides of the Atlantic. This debate is at least as much about ensuring public safety as it is about the Government’s attitude to the European Union and its institutions.

The Government’s decision to opt out of all the police and criminal justice measures agreed to prior to the coming into force of the Lisbon treaty, and to opt back into only the 35 which my right honourable friend the Home Secretary believes will help us tackle crime and keep our country safe, has been characterised by several noble Lords on the Benches opposite as putting the security of the nation at risk for purely party political reasons; that is, to mollify—I believe that the word used is appease—the Eurosceptics in the Conservative Party. I will make two short points about this claim, which I find unfair and without foundation.

On the basis of my long experience as a civil servant serving Home Office Ministers of both parties in this country, and my experience as a consultant advising public officials on policing in the United States, I assure your Lordships that I have not dealt with a single Minister or public official on either side of the Atlantic—including the legendary Rudy Giuliani—who is more committed to reducing crime and making communities safe than my right honourable friend the present Home Secretary, with whom I have had the great pleasure of working closely for almost two years following the general election.

As for the claim that my right honourable friend is frightened of upsetting the Eurosceptics in her party, frankly, I find that ludicrous. As everyone in British policing knows, my right honourable friend is not frightened of anyone. Her courage and determination are legendary, particularly when she believes that what she is doing will make ordinary families safer.

Finally, I will make a brief point—and it will be brief—about what European professionals in your Lordships’ House call proportionality. I have no doubt that the 35 measures which the Home Secretary intends to seek to rejoin will be useful and will make it easier for our policing agencies to prevent some major crime and even terrorist activities. However, here is where proportionality, or a sense of proportion, comes in. There is no way in which these 35 measures—or, dare I say it, all 130 pre-Lisbon measures—can be described as critical to the overall public safety of our society.

As noble Lords will recall, the official Crime Survey for England and Wales was published only last week. It reported that a total of 8.6 million offences had been committed last year. These numbers do not include the much larger number of incidents of anti-social

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behaviour which plague our most vulnerable communities on a daily basis. Does anyone really believe that the European arrest warrant, Europol or any of the other 35 measures which the Government wish to retain will make a significant difference to these numbers or to the feeling of security which our friends and neighbours across the country experience as they go about their daily lives?

I do not for a moment minimise the importance of international collaboration or of any of the other measures that the Government want to rejoin. They will certainly help our local police forces and also help our new National Crime Agency to do its job more effectively. However, it is both misleading and irresponsible to argue that the Government are risking the safety of our communities by opting out of the whole package of pre-Lisbon proposals with a view to being able to opt back into those they believe will be most useful. I strongly commend the Government’s Motion to the House.

9.13 pm

Lord Grenfell: My Lords, I hope that noble Lords will indulge me if I repeat a quotation that I used some time ago in your Lordships’ House from the French writer Antoine de Saint-Exupéry, who said:

“Perfection is achieved, not when there is nothing more to add, but when there is nothing left to take away”.

As the final Back-Bench speaker in this debate I take his advice to heart. I have nothing more to add to the debate, and I have taken almost everything away from the speech that I would have made if I had spoken earlier. Of course, that does not guarantee perfection, but it might result in brevity.

I will say a word about the question that the noble Lord, Lord Maclennan, raised—and I am sorry that he had to scratch from the debate. On 15 July, the Home Secretary was asked the same question by Mark Reckless MP. She answered:

“I do not believe that opting back into these measures would trigger a referendum under the powers that the Government have”.—[Official Report, Commons, 15/7/13; col. 783.]

Note the words “do not believe”. We do not want the Government’s best guess on this—we want certainty. Are the Government incapable of interpreting their own European Union Act 2011? If so, I am astonished. I hope that the noble Lord, Lord Taylor, can reassure us on this point.

I have much sympathy for part of the amendment in the name of the noble Lord, Lord Hannay, on which he is choosing not to divide the House. It takes the Government properly to task for their cavalier attitude towards—and I might say disdain for—your Lordships’ European Union Select Committee in waiting until today, of all days, to publish their response to its report. As a former chair of that Select Committee, I felt outraged. I am delighted that the noble Lord, Lord Boswell, is initiating an inquiry in his committee into the role of national parliaments in the European Union. This Government, who never cease to trumpet the urgent need for closer parliamentary involvement in EU affairs, must cease to betray their spoken intentions with actions that undermine them. I venture to speculate that, had the Motion been set for a later date, we

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would still be waiting for the Government’s response. They have been panicked into producing it, and I congratulate the noble Lord, Lord Hannay, on having applied the necessary shock treatment with the wording of his amendment.

Of course, the Government’s Motion refers to a set of circumstances that we on these Benches do not accept. We do not start with the premise that the UK should ask for a block opt-out under Protocol 36—least of all when there is no certainty that our seeking to opt back into measures deemed to be in our interest will meet with the approval of our European partners. The Select Committee’s warning that a blanket opt-out would damage our internal security and the administration of criminal justice has fallen on deaf ears, despite the fact that, as the noble Lord, Lord Bowness, emphasised in his speech, the committee reached its conclusion after listening to the expert views of leaders in the legal, law-enforcement and prosecutorial professions.

In order to opt back into the measures they need never have opted out of, the Government will now opt out of everything and hope for the best. If ever there was a risk of seeing several healthy babies thrown out with the bathwater, this is it. Of course, that is what the wilier and wilder Eurosceptics are itching to see happen. They are happy to support the blanket opt-out, but for them the greater prize would be the failure of the Government to achieve the opt-back-into some if not all of the 35 measures listed in Cm 8671. The Government, with their unwarranted optimism that they will secure from their European partners a successful opt-back-in, risk damaging our national interest and humiliating themselves.

Why does the Prime Minister insist on a wholly unnecessary risk? We know why. It has little if anything to do with improving our internal security or the administration of justice. It has much to do with the security of the Prime Minister and the administration of his divided party. Is that how we must now define “national interest”? The Government risk writing a shameful page in the history of our relations with our European partners if they go on in their current manner on this matter. I believe firmly that the Government have lost the plot—and tonight, they have certainly lost the argument.

9.18 pm

Baroness Smith of Basildon: My Lords, this has been a fascinating debate. Although in some ways the opt-out/opt-in issue is complex, with the Command Paper showing how technical and detailed each measure is, it is also very simple. The first duty of any Government is to ensure the security and safety of their citizens. Will opting out and then—as the government Motion states—seeking to opt back into the key measures fulfil the first duty of a Government to their citizens? The key word is “seek”. There are no guarantees and there is no definite confirmation that we will opt back into those measures that are necessary to fight crime and terrorism: just an assurance that we will seek to do so. That is not good enough.

Until the opt-back-in is guaranteed, there remains a risk. The consequences of that risk must be evaluated. Crime does not stop at Calais. EU co-operation with police and criminal justice measures are essential in

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the fight against organised and serious cross-border crime. Drug trafficking, people trafficking, abduction, money-laundering, paedophilia, cybercrime and, of course, national security and terrorism are all the more dangerous and complex because they transcend borders.

Essential reading for this debate is our EU Committee’s report on the implications of the opt-out. It concluded:

“On the basis of the evidence we have received we do not consider that the Government have made a convincing case for exercising the opt-out ... we find that the evidence supports the reasoning of those opposed to its exercise. Opting out … would have significant adverse negative repercussions for … internal security … and the administration of criminal justice in the United Kingdom”.

Those are powerful words indeed from an all-party committee of your Lordships’ House. It took written and oral evidence from 50 witnesses with experience and expertise, including government Ministers, and had numerous hearings and discussions. Its unanimous, comprehensive and detailed report is the result.

Despite earlier rhetoric, the Government have made clear that they accept that a permanent opt-out from all these measures would not be in the national interest. They now accept that the 35 measures listed in the Command Paper are necessary. Therefore, if the Government opt out, there must be a quick, easy and effective opt-back-in.

The noble Lord, Lord Hannay, has succeeded in persuading the Government to amend their Motion to seek to ensure that the Government will honour their commitment to the details of the 35 opt-in measures. Can I therefore ask the Minister who will reply to the debate—the noble Lord, Lord Taylor—to clarify that this is how the Government view the significance of the word “endorse”? Would this Motion preclude the Government from deciding later to change the number of measures contained in the Command Paper—that is, the 35? Are the Government now absolutely committed to the 35 measures? The answer to that is difficult, it seems to me, because on the one hand the noble Lord, Lord Hannay, and most of the noble Lords who have spoken tonight want the assurance that they are but, on the other hand, that risks antagonising the noble Lord, Lord Blackwell, and the 100 Conservative MPs who wrote to the Prime Minister seeking a permanent opt-out of all 133 measures.

A number of questions have been raised in previous debates that Ministers have so far failed to answer, as the noble and learned Lord, Lord Lloyd, said. Have the Government secured a guarantee that we can opt back into these important measures? If not, will the Government still opt out without such a guarantee? What timescale do the Government envisage, or consider is reasonable, from the opt-out until the process of opting back in is completed? Are the Government seeking to amend any of the 35 measures other than the European arrest warrant?

The political negotiations to opt back into these 35 measures could be time consuming, difficult and will no doubt be subject to some political horse trading. Has any assessment been made in this age of austerity of the cost of such negotiations? What are the implications and consequences if we fail to opt back in, including

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financial? If the opt-back-in is not immediate, transition measures will be essential. The example often used by the Government to justify the opt-out is the European arrest warrant. This was to be part of the great repatriation of powers, the transfer of real power back to the UK that Ministers were so fond of talking about.

The Prime Minister said that the European arrest warrant was “highly objectionable”. Government MPs voted on a three-line Whip against a Labour Motion that would have maintained the principle of the European arrest warrant. One of the reasonable criticisms made of the European arrest warrant is that British citizens can be held in custody for excessive periods in foreign prisons while awaiting trial in conditions that would not be acceptable in the UK. Therefore, I welcome the announcement tonight by the noble Lord, Lord McNally, that the Government will now implement the European supervision order. But why did they not do so before the December 2012 deadline? Why the delay? Are those British citizens in foreign prisons victims of the Government’s anti-Europe rhetoric? But now, the Government have had to admit the effectiveness of the European arrest warrant and that, without it, criminals can evade justice. Criminals could seek to escape British justice abroad, and would be able to hide in the UK to evade the justice of other countries.

I concur entirely with the excellent examples that the noble Lord, Lord McNally, gave, and I have others which I will not go into this evening. I therefore welcome the Government’s U-turn on this issue. However, there are unanswered questions to be addressed before we can be satisfied that public safety is not being put at risk by any interval between opt-out and possible opt-back-in. It is a reasonable question to ask, particularly given that the committee notes in its report that since Denmark exercised its opt-out,

“the Commission had frequently refused permission for the Danes to conclude agreements in certain areas”.

I thought that the question from the noble Lord, Lord Maclennan of Rogart, about a referendum was a perfectly reasonable one to ask. I was surprised by the somewhat heated and exasperated response which he received from the noble Lord, Lord McNally, and by the refusal to answer, especially given the noble Lord’s comments in an article last Monday in which he wrote:

“if Liberal Democrats were in government on our own I suspect we would not be exercising the mass opt-out”.

The noble Viscount, Lord Eccles, helpfully gave an explanation on that point which he had heard from the noble Lord, Lord Taylor. However, as the noble Lord, Lord Grenfell, said, we need certainty on that point. I hope that, in responding to the debate, the noble Lord, Lord Taylor, will be able to give that certainty without the hyperbole that we heard earlier from the noble Lord, Lord McNally. The European arrest warrant is a legal framework that allows countries to extradite. Transition measures will have to be legally robust to ensure the satisfaction of the courts dealing with extradition. I appreciate that I have asked a number of questions, but they are not new or unexpected and would be very straightforward for the Government to answer at this stage. I alerted the noble Lord, Lord Taylor, earlier that I would be repeating these questions this evening.

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When we debated the Government’s Statement on 19 July, I asked the noble Lord, Lord McNally, similar questions, plus two very straightforward ones. I did not receive any replies then, but obviously, the Government have now had time to consider those points and I would welcome answers tonight. I am confident that the Government have answers to them now. These questions strike at the very heart of this issue. They were also referred to by the noble and learned Lord, Lord Lloyd. If the Government are prepared to take this course of action—to opt out and then seek to opt back in to the key measures—there must be good reasons why the permanent opt-out from the other measures is so important. So, how many of the measures which the Government want to permanently opt out of are relevant to the UK and are currently being used, and what impact will their removal have? What is the exact number of practical, workable and working measures that the Government are seeking permanently to opt out of?

Of the 133 crime, law and order and policing measures, the Government want to opt back into 35, and an additional seven have already been replaced and the Government have opted in. My understanding is that the measures that the Government seek permanently to opt out of are basically harmless and irrelevant or, as the noble Lord, Lord McNally, said in his opening speech, “obsolete, defunct or simply unused”. His article also referred to the measures negotiated by the Liberal Democrats in the Government as,

“keeping the wheat and losing the chaff”.

Can the Minister tell your Lordships’ House which, if any, of the measures which the Government are seeking permanently to opt out of are harmful to the UK? Or are the Government prepared to risk those measures that even they consider essential by being strong and bold in jettisoning the irrelevant?

Unless the Government now have guarantees that the UK can opt back in with no delays, no interregnum where UK citizens are left exposed, what is the point? Or is the Minister going to inform your Lordships’ House tonight that this is a serious and important repatriation of powers from the shackles of Brussels? I suspect not.

There remain so many questions, but the biggest has to be: why? I look forward to receiving some answers from the noble Lord, Lord Taylor, this evening, because the questions were raised in previous debates and we are still waiting for answers. The Minister has to convince your Lordships’ House that the Government's actions are in the public interest and not, as it so clearly appears, a ridiculous piece of theatre designed to placate what the noble Lord, Lord Hannay, called “those on the wilder side of Euroscepticism”.

Despite the welcome and successful efforts of the noble Lord, Lord Hannay, to achieve what I hope are cast-iron assurances on the 35 measures, without guarantees that we will be able to opt in with no time lag that puts British citizens at risk, we cannot support the Government in their Motion this evening.

9.27 pm

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, I am sorry about the noble Baroness’s unwillingness to support

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the Government on this Motion. If people say that there is no passion or conviction in British politics, they should have been listening to this debate, because it has shown that there is indeed a lot of passion and conviction on this issue.

Before I address the points that have been made during the debate, I join my noble friend Lord McNally in thanking the noble Lords, Lord Boswell, Lord Hannay and Lord Bowness, for their chairmanship of the committee, which produced a formidable body of work for the Government to consider, and its ongoing role in scrutinising this matter. The Government are appreciative of the committee’s high-quality and thoughtful report, which has been integral to the decision-making process behind our decision to table the Motion this evening. I look forward to working with the noble Baroness, Lady Corston, as chairman of Sub-Committee E.

The Government have today replied. Noble Lords have said that it is plenty late enough, but we have replied to the committee’s report on the matter. Copies of the reply are available and I am sure that a number of noble Lords have taken the opportunity to look at it. We would like noble Lords to consider it alongside the letter of 18 July, sent to the noble Lord, Lord Boswell, which can be found in the Library of the House.

To return to today’s business, I am grateful to the noble Lord, Lord Hannay, and to my noble friend Lord Bowness for meeting me yesterday. It was incredibly helpful to me personally, and the amended Motion that we have tabled reflects the outcome of these discussions. I hope that the whole House can support the government Motion. I would regret it if that were not the case.

On 9 July, the Home Secretary reaffirmed the Government’s intention to exercise the opt-out. Noble Lords will be aware of the background to the opt-out and there is no need to remind them of its origins. However, as I listened to the speeches from the Benches opposite, I wondered why, when they were in office, they negotiated the opt-out. They must have believed in it once, so what has happened to that belief? As my noble friend Lord Hodgson asked, why did they take such care to ensure that the Lisbon treaty contained this protocol, the provisions of which we now seek to exercise?

In the other place on 15 July, there was a debate on this issue and a vote to exercise the opt-out and rejoin the measures where it is in the national interest to do so. I am grateful to my noble friends Lord Sharkey, Lord Bowness, Lord Eccles and Lord Hodgson—and many other noble Lords—who said that they find the 35 measures that the Government seek to rejoin sensible. The noble Lord, Lord Williamson, also agreed that these were sensible measures for the Government to seek to rejoin.

I must reassure my noble friend Lord Blackwell that the Government have made a considered judgment on this issue. They are confident that, in using the test of the national interest, they have properly identified those 35 measures that they will seek to rejoin. These 35 measures listed in the Command Paper represent government policy. My noble friend and I will have to agree to differ about whether we are right to seek to rejoin those 35 measures.

23 July 2013 : Column 1279

It might help noble Lords if I explain what happens next. On that point, I must return to the question of scrutiny and the work of the European Union Committee. I think that all noble Lords accept that the European Union can play an important role in tackling cross-border crime. This Government understand that, but equally we understand that decisions taken at EU level, or about the EU’s role in dealing with crime, must be subject to rigorous scrutiny. That is only correct and the UK Parliament must be sovereign in exercising this scrutiny.

Scrutiny can be an iterative and long-running process, especially on a matter such as this. That is why today’s Motion from the Government invites the European Union Committee to give a further view on what measures it believes we should rejoin. I hope that Command Paper 8671, which sets out those measures that the Government believe are in the national interest to rejoin, provides a useful starting point. I hope sincerely that the House can endorse that list today, but let me be clear that any endorsement cannot pre-empt the work of either the committee here or the committees in the other place in looking at all the measures. I expect that that is the point at which the noble Lord, Lord Davies of Stamford, can apply his scrutineering endeavours, since he went through various measures on which he had comments to make. I expect our committee in this House to come back with a thorough examination of the Government’s decision and I look forward to receiving it.

However, I have to ask the House to note that the Government have committed to not beginning formal discussions with the EU institutions or other member states until November. That is to ensure that the committee in this House and the relevant committees in the other place have time to report. All the reports will be carefully considered by the Government. Further to that, noble Lords will know that there are methods whereby committee reports can be brought before the House for debate. I hope that those will be promptly exercised in this instance as I look forward to a prompt debate on our committee’s report.

Lord Bowness: My Lords, I am sorry to interrupt my noble friend, but while he is talking about process and procedure can he perhaps explain to me, if to no one else, the following? In the debate in the other place, my right honourable friend the Home Secretary said that the mandate that she was seeking that evening would lead to the UK exercising the opt-out. Precisely when is it envisaged that we will give formal notice to the Council of our intention? Is it to be after we have passed, if we do, the Motion tonight or will it be after there has been consideration of the reports by the relevant committees?

Lord Taylor of Holbeach: The Government do not have to give formal notification until 31 May, but the votes in this House and in another place provide authority for the Government to commence negotiations with the European institutions, which is why this debate is important. It provides an opportunity for those informal negotiations that will lead, post November, to formal negotiations with the European institutions. Perhaps I may turn—

23 July 2013 : Column 1280

Lord Richard: I am much obliged to the Minister. He says that this vote tonight is necessary so that negotiations can begin. Why is it that the House of Commons was not asked to endorse the Government’s view that the 35 measures were in the national interest, whereas in this House we have been asked to endorse that? Why is there that difference between the Motions that have been put to the two Houses?

Lord Taylor of Holbeach: Noble Lords conduct their own business in this House and I think that the Motions—

Noble Lords: Oh!

Lord Taylor of Holbeach: We have presented to noble Lords the Motion that we believe reflects the position of this House.

Lord Hannay of Chiswick: My Lords—

Lord Taylor of Holbeach: I will give way to the noble Lord, but I want to make this point absolutely clear. The noble Lord, Lord Richard, is plucking at straws. Let us get to the substance of this. There is a Motion before the House this evening that gives Members of the House an opportunity to express an opinion on both the opt-out and the rejoining of 35 measures. That is quite clear and it was the purpose of tabling this Motion. It is up to noble Lords to decide how they react to it, but there is nothing devious or obscure in the way in which the Motion has been derived.

Lord Richard: With great respect, I am not clutching at any straws at all. Having been drawn into a conversation with the noble Lord, I think that I am entitled to put this point to him. It is a question not of clutching at straws but of asking a very simple question of the Government. Why have they asked this House to endorse their proposals when they did not ask the House of Commons to endorse them? Why is there a difference between the Motions put to the two Houses?

Lord Taylor of Holbeach: I have given the noble Lord the answer.

Noble Lords: No!

Lord Taylor of Holbeach: I can give no other answer and I will give no other, because I have given the noble Lord an answer.

I should like to get to the substance of this debate. We can talk around it, but we should get to the substance. I was challenged by my noble friend Lord Maclennan and by the noble Lords, Lord Tomlinson and Lord Grenfell.

Lord Hannay of Chiswick: I am most grateful to the noble Lord for giving way. I want to get clarification on something that he said before he started the exchange with the noble Lord, Lord Richard. He said that the Motion before the House tonight, which endorses the Government’s list of 35 measures in the Command

23 July 2013 : Column 1281

Paper, would be the basis on which the Government would start informal consultations with our partners. Can he confirm that that is true?

Lord Taylor of Holbeach: Exactly. There will be informal negotiations to start with because, until the reports from the sub-committee are produced in November, the Government do not intend to open up formal negotiations. The noble Lord is exactly right and I am grateful. I should have given way to him earlier. It was a very helpful intervention on his part.

I was going on to say that the noble Lord, Lord Maclennan, challenged my noble friend Lord McNally on the whole business of the referendum. The noble Lords, Lord Tomlinson and Lord Grenfell, and the noble Baroness, Lady Smith, repeated this. There is a very clear answer and I will read it. The European Union Act sets clear criteria for when a referendum would be necessary. These are set out in Section 6 of the Act. This decision is not one of the areas where a referendum is required. Changes to the Treaty on European Union, the TEU, or the Treaty on the Functioning of the European Union, the TFEU, or a decision made under Article 48(6) of the TEU potentially attract a referendum under the European Union Act 2011. The 2014 decision is not a treaty change, nor a decision under Article 48(6) of the TEU. Instead, it is something that flows from the existing treaty and, as such, it is not subject to a referendum. I hope that that categorical assurance reassures the House on this issue.

There have been some discussions about whether we are right to exercise the opt-out. The noble Lord, Lord Richard, raised doubts early on in the debate about whether this was a wise decision. My noble friend Lord Taverne questioned whether we were doing the right thing and a number of noble Lords have also done so. The Government are of the view that we should exercise the opt-out for three reasons: principle, policy and pragmatism. On principle, it is our view that the UK’s international relations in the field of police and criminal justice are a matter, first and foremost, for the Government. For example, the Government believe that, if necessary, we should have the option to amend our bilateral UK-US extradition and mutual legal assistance treaties as we and the US wish. However, currently any changes would need to be in conformity with the EU-US agreements.

In terms of policy, the UK has and will continue to have the ability to choose whether it should opt in to any new proposal in the field of justice and home affairs. It is therefore only right that we take the opportunity to consider on a case-by-case basis whether we wish to retain the pre-Lisbon measures and allow the CJEU to exercise jurisdiction over them. The key question that the Government have asked themselves in this regard is whether it is in the national interest to rejoin a particular measure.

Finally, we are being pragmatic. We are not going to be in a position to implement Prüm, for example, which requires member states to allow reciprocal searching of their databases for DNA profiles, vehicle registration and fingerprints, before December 2014. Implementation is likely to take years and require substantial funding. By choosing to remain bound by Prüm after 1 December 2014, we run the very serious risk of being infracted

23 July 2013 : Column 1282

for failing to meet our obligations under the EU. The Home Secretary and Justice Secretary set all this out in a letter last Thursday. Others can disagree with it, but the case has been made and that is the Government’s position.

There is some concern, which has been stressed again by noble Lords, about why we are having this vote today. I think the nub of the question put to me by the noble Lord, Lord Richard, was, “Why do we need a vote today?”. We need, as I have said, to begin these informal discussions but we need also to allow some time for scrutiny of the measures and the decisions as they go along. The EU Committee has suggested in its report that the Government should have started negotiations at a much earlier stage. However, the Government would have been presumptive to have done so without allowing Parliament to have a say on the matter. The Commission DG for Justice, Françoise Le Bail, has said:

“But I guess the key issue is to have a decision by the British Government. There is nothing else we can do before that”.

That is why we have asked for this vote today. In effect, from this moment, we will be able to enter into those informal negotiations.

A lot of anxieties have been expressed, and the noble Baroness, Lady Smith, repeated the point about the risk of a gap between our opting out and our rejoining. Noble Lords will of course understand that there will be a transitional arrangement. The timetable is that the actual opt-out does not occur until 1 December 2014, so there is a period for negotiations, which we believe will include transitional arrangements. We do not see a gap as being a serious obstacle for us in presenting to our European colleagues a proper case for renegotiation in respect of those bodies that we want to opt in to. Indeed, all the discussions that we have had with colleagues in Europe have given us the feeling that we can be confident that they will be pleased that we have actually made a decision on this matter and that we will be in a positive position in respect of the 35 measures to which we will be opting in.

Lord Blackwell: Can my noble friend give me one more assurance? Can he confirm that, once the British Government have concluded their negotiations and we know what the conditions will be for opting back in to, for example, the European arrest warrant, Parliament will then have an opportunity for a final say on whether or not it agrees with those opt-ins?

Lord Taylor of Holbeach: Yes, that is indeed provided for. After 31 May, not only will impact assessments be generated for each of the measures to which we are opting back in but there will be a second vote on the 2014 opt-ins. This is a journey which Parliament and Government have to undertake together. I understand the passions of noble Lords on this issue but I hope that we can establish, on the terms of the debate that we have had this evening, a proper dialogue so that we can actually discuss these issues and give those people who disagree with the Government a proper sense that they have an opportunity for dialogue with us.

Lord Hannay of Chiswick: The noble Lord has just said something a little startling. He assured the noble Lord, Lord Blackwell, that the second debate and vote

23 July 2013 : Column 1283

will take place after 31 May—that is, after the date that we have to give a legal notice to the European Union that we are opting out. I do not quite see how a vote after that date can vary that decision in any way.

Lord Taylor of Holbeach: There will be a second vote on the whole package after 31 May.

Lord Hannay of Chiswick: It would have to be before 31 May.

Lord Taylor of Holbeach: There will be a deadline of 31 May. The Government will make the decision but it will be up to Parliament to endorse it in a vote after 31 May. This is a matter where the Government and Parliament will be in constant dialogue. As I have said, there will be a debate in this House, I hope, in November. I hope that noble Lords will be furnished with arguments by the committee of this House that will enable us to discuss this issue properly at that time.

This has been a good debate. This Government are not frightened of criticism and are prepared to seek to answer it. The choice before us is whether we exercise the opt-out and rejoin measures, where it is in the national interest to do so, or we do nothing. I am firmly of the view that we should opt out, but it is most certainly in the national interest to seek to rejoin measures that help to combat cross-border crime and keep our country safe. I hope that the House will also endorse the measures in Command Paper 8671 and strengthen the Government’s negotiating hand. I know that the European Union Committee can further help the Government and this House by further scrutinising the measures that it feels the Government should rejoin. This can only enhance the debate. I am very pleased that the terms of today’s Motion have encouraged the noble Lord, Lord Hannay, not to press his amendment. I hope that I have also shown that the Government are prepared to listen to these concerns.

Lord Foulkes of Cumnock: My Lords—

Lord Taylor of Holbeach: I am sorry; I am not going to give way. I have some important information for the House. The brief I had that said that the vote would be after 31 May was incorrect. It has now been corrected. The vote will be before 31 May, which I am sure reassures noble Lords. It certainly makes my life a little easier, if I may say so.

I hope that the noble Lord will forgive me. It is late and I am coming to the end of my remarks. There will be another vote before we formally apply to rejoin these measures. Today is not the end of the process but just a step along the road. I hope that noble Lords will support the position set out by the Government. It gives us a chance to be involved in a continuing discussion on this issue. I commend the Motion in the name of my noble friend to the House.

Lord Hannay of Chiswick: My Lords, I confirm what I said at the end of my intervention—that I do not propose to divide the House on the amendment in my name on the Order Paper.

Amendment withdrawn.

23 July 2013 : Column 1284

9.54 pm

Division on the Motion

Contents 216; Not-Contents 104.

Motion agreed.

Division No.  2


Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Bates, L.

Bell, L.

Berridge, B.

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Bottomley of Nettlestone, B.

Brabazon of Tara, L.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browne of Belmont, L.

Browning, B.

Burnett, L.

Buscombe, B.

Byford, B.

Caithness, E.

Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Chidgey, L.

Clement-Jones, L.

Coe, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Craigavon, V.

Crathorne, L.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Deben, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Dundee, E.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Edmiston, L.

Elton, L.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Feldman of Elstree, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Glendonbrook, L.

Glentoran, L.

Goodhart, L.

Goodlad, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Peckham, L.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Home, E.

Hooper, B.

Howard of Lympne, L.

Howard of Rising, L.

Howe of Aberavon, L.

Howe, E.

Howell of Guildford, L.

Hunt of Wirral, L.

Hurd of Westwell, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Jenkin of Roding, L.

Jolly, B.

Jopling, L.

King of Bridgwater, L.

Kirkham, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Leach of Fairford, L.

Lee of Trafford, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Loomba, L.

Lucas, L.

Luke, L.

Lyell, L.

Lytton, E.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Mancroft, L.

23 July 2013 : Column 1285

Mar and Kellie, E.

Marks of Henley-on-Thames, L.

Marlesford, L.

Mayhew of Twysden, L.

Miller of Hendon, B.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Pannick, L.

Parminter, B.

Perry of Southwark, B.

Phillips of Sudbury, L.

Plumb, L.

Popat, L.

Randerson, B.

Renfrew of Kaimsthorn, L.

Rennard, L.

Renton of Mount Harry, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rogan, L.

Roper, L.

Saatchi, L.

Sassoon, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Sharples, B.

Shaw of Northstead, L.

Shephard of Northwold, B.

Shipley, L.

Shrewsbury, E.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Sterling of Plaistow, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Taverne, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tope, L.

Tordoff, L.

Trefgarne, L.

Trimble, L.

True, L.

Tugendhat, L.

Tyler of Enfield, B.

Tyler, L.

Ullswater, V.

Verma, B.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Watson of Richmond, L.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Williams of Crosby, B.

Willis of Knaresborough, L.

Wolfson of Aspley Guise, L.

Wolfson of Sunningdale, L.

Younger of Leckie, V.


Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Best, L.

Boateng, L.

Brennan, L.

Brooke of Alverthorpe, L.

Browne of Ladyton, L.

Campbell-Savours, L.

Chandos, V.

Collins of Highbury, L.

Crawley, B.

Davies of Oldham, L.

Davies of Stamford, L.

Donaghy, B.

Drake, B.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Evans of Parkside, L.

Falkland, V.

Farrington of Ribbleton, B.

Foulkes of Cumnock, L.

Gale, B.

Goldsmith, L.

Gould of Potternewton, B.

Grantchester, L.

Grenfell, L.

Hanworth, V.

Hardie, L.

Harris of Haringey, L.

Harrison, L.

Haworth, L.

Healy of Primrose Hill, B.

Hilton of Eggardon, B.

Hollis of Heigham, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hylton, L.

Jones of Whitchurch, B.

Jones, L.

Judd, L.

Kennedy of Southwark, L.

Kinnock of Holyhead, B.

Kinnock, L.

Knight of Weymouth, L.

Layard, L.

Lea of Crondall, L.

Liddell of Coatdyke, B.

Liddle, L.

Lister of Burtersett, B.

Lloyd of Berwick, L.

23 July 2013 : Column 1286

Low of Dalston, L.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Masham of Ilton, B.

Maxton, L.

Monks, L.

Morris of Handsworth, L.

Morris of Yardley, B.

O'Loan, B.

O'Neill of Clackmannan, L.

Pendry, L.

Pitkeathley, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Richard, L.

Robertson of Port Ellen, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Leigh, L.

Soley, L.

Stevenson of Balmacara, L.

Stone of Blackheath, L.

Tomlinson, L.

Tonge, B.

Tunnicliffe, L. [Teller]

Walpole, L.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wood of Anfield, L.

Worthington, B.

European Court of Human Rights: Khodorkovsky Case

Question for Short Debate

10.07 pm

Asked by Lord Trimble

To ask Her Majesty’s Government what representations they have made to the governments of Russia and other European countries about the Khodorkovsky case at the European Court of Human Rights.

Lord Trimble: My Lords, the question is, “Why Khodorkovsky?”. There are a number of reasons. First, he is a successful businessman. He turned around a high-cost loss-making company into profit and increased production so that by 2003 it produced 20% of Russia’s oil and was Russia’s second-largest taxpayer. The leading Russian business newspaper, a joint Financial Times/Wall Street Journal venture called Vedomosti, awarded Khodorkovsky its entrepreneur of the year prize. Secondly, he challenged Putin. In a televised confrontation with Putin he cited opinion polling showing, among other things, that half the public believed that corruption had spread to a majority of state officials—including at the highest levels—and that more than 70% thought the use of the official justice system a waste of time. He concluded, “Corruption is spreading in this country. You could say that it started right here. And now is the time to end it”.

Thirdly, many feel that Putin’s response—arresting Khodorkovsky in October 2003 and driving his company into bankruptcy—marked a turning point in the development of the regime. The journalist Andrei Kolesnikov, described by Ben Judah as “the only ever defector” from Putin’s inner circle of St Petersburg friends, recalled a conversation with Putin in 2005 when he said, “I don’t like that after you arrested Khodorkovsky, I lost the feeling that I lived in a free country. I have not started to feel fear—”. Putin then interrupted him and said, “And did you not think that this was what I was aiming for”?

23 July 2013 : Column 1287

Kolesnikov recalls that after Putin’s inauguration in 2000 he was approached by a senior member of Putin’s inner circle to manage some funds for him. The funds initially came as gifts from various oligarchs. Kolesnikov was told that Putin wanted part of this money put into offshore funds. By 2005, $200 million had accumulated in this fund. In that year he was told to build a small house by the Black Sea for Putin—just 1,000 square metres, costing just £14 million. The project ballooned. The house became four times the size and was joined by a casino, a church, swimming pools and helipads, a summer amphitheatre and a winter theatre. Until the 2008 financial crisis, Kolesnikov divided the special fund between the building project and investments in a host of other businesses across Russia. Then he was told that all the funds were to be spent on the Black Sea palace. Kolesnikov later broke with Putin and fled the country. Ben Judah, in his book Fragile Empire, comments:

“What the Kolesnikov documents seem to show us is that Putin never changes. Instead, as he has grown more powerful, he grew ever more corrupt … He cannot change—and as long as he is in power, neither can Russia. Nor can the incestuous relationship of power and corruption that spiralled out of control under Yeltsin ever end”.

In 2007, after four years in detention, Khodorkovsky, whose trial had concluded in 2005 with an eight-year sentence, would have been eligible for release on parole, but in February of that year, new charges were announced which led to another conviction in December 2010. In February 2004 Khodorkovsky made his first application to the European Court of Human Rights, which concerned the circumstances of his arrest and pre-trial detention. In May 2011 the court ruled that there had been breaches of the convention and awarded the modest claim for $10,000 in full.

In March 2006 a second application was made to the ECHR concerning the first trial. This was ruled admissible in 2011 and last week it became known that judgment would be given on 25 July. A third application to the ECHR remains pending as does a fourth. As to the substance of these cases, I think it is sufficient to note that the International Bar Association’s Human Rights Institute, which had an observer at the second trial, concluded that the proceedings were unfair and had not produced clear proof of guilt. Many others agree.

Khodorkovsky will become eligible for parole in a year’s time but there are fears of a third trial. These fears are reinforced by current events. Sergei Magnitsky, a young lawyer who exposed a huge tax fraud in which many government officials were involved, was arrested and died in prison in 2009. Last month he was posthumously tried and convicted of tax offences. Bill Browder, a British citizen, was convicted in his absence in the same trial. How do the Government view that conviction? Last week Alexei Navalny was convicted of embezzlement in another sham trial. Navalny came to prominence as a blogger exposing official corruption. He coined the phrase, “United Russia is the party of crooks and thieves”, and was prominent in the demonstrations protesting the fraudulent elections in 2010 and 2012. Putin weathered those protests, which were mainly confined to the emerging Moscow middle class. This led Navalny’s wife, Julia, to say in despair,

23 July 2013 : Column 1288

“Putin has decided to turn Russia into an authoritarian state like Belarus. He is pushing, a bit here, a bit there, to find out how far he can go. And there is only one thing that can stop him. A gigantic protest, or the West”.

Yet Putin’s current policy is based on a huge gamble. In 2007 he could balance the budget on an oil price of $40 a barrel. In 2012 he needed a price of $110 a barrel and he cannot compensate by increasing production. The technological changes pioneered by Khodorkovsky have run their course and oil production is predicted to decline by 20% in the coming decade, while shale and liquefied natural gas pose long-term problems for Russia’s gas.

What should we do? First, we should be careful about the messages we send. Sixty individuals have been identified as being involved in the tax fraud Magnitsky uncovered and in his torture and death. In the USA, legislation has been enacted banning them from entering the US. In April, Dominic Raab tabled a Written Question asking if any of those had visited the UK. Mark Harper replied in July saying that the Government,

“is already aware of the individuals on the list and has taken the necessary measures to prevent them being issued visas for travel to the UK”.—[

Official Report

, Commons, 18/4/13; col. 499W.]

However, a few days later he wrote to Hansard with a different Answer, this time saying in a letter that “applications for travel ... are flagged up for careful consideration on a case by case basis, no decision has been made to refuse their leave outright”. The amended Answer went on to refer to the longstanding policy not to disclose details of records of individuals and to reiterate that applications were treated on their merits,

“in line with our usual practice”.—[

Official Report

, Commons, 9/7/13; col. 2MC.]

The best thing that I can say about this apparently craven response by the Home Office is that it may be driven by a fear that in the absence of legislation it could not defend the policy to deny entry, but I am sure that the Kremlin will regard this as a fear of offending it.

The same, I fear, is true of last week’s decision by the Home Secretary to refuse a request by Sir Robert Owen, the coroner conducting the inquest into Litvinenko’s death. The coroner had requested a public inquiry because he could not hear in public secret evidence that might show the involvement of the Russian state in Litvinenko’s murder. Theresa May’s letter to the coroner conceded that international relations were a factor in the decision, and went on to say that inquests were more readily explainable to foreigners than an inquiry established by the Government under a chairman appointed by the Government. I am sure that the reaction to that in the Kremlin can be imagined. On this issue, I must ask the Minister: does this letter indicate that the Government are intending to amend or even abandon the Inquiries Act 2005, with the Home Secretary saying in effect that she could not use that Act in this case for the reasons that she gave?

In conclusion, we should have no illusions about the regime, and neither avert our eyes nor appease. Russia’s legal system is an extension of the ruling party, and the party and the Government as a whole

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are deep in corruption and will stop at nothing to preserve their power. I hope that the European Court of Human Rights will indicate the fundamental rights and freedoms of the convention in the cases that come before it, but what do we say to such a member of the Council of Europe? We should firmly oppose human rights abuses and the distortion of democracy; we should remind the Russians of their obligations as a member of the Council of Europe; we should press for a European law on the Magnitsky case—I say European because the Russians are adept at trying to divide the European countries on these issues—that imposes visa bans and freezes assets; and we should address the corruption that pervades the Russian system and, at the very least, stop the laundering of the dirty money that flows from there to here. That at least would hurt them in their pockets.

10.17 pm

Lord Judd: My Lords, I congratulate the noble Lord, Lord Trimble, on raising this important matter in this debate. We should put on record our appreciation of the All-Party Parliamentary Group on Human Rights for the work that it does on this issue and the material results of its research, which are made available to us.

There are 13,600 people serving prison terms in Russia for what are described as economic crimes. The routine criminalisation of business disputes is all too symptomatic of the weak rule of law in Russia. Entrepreneurs are too often jailed on trumped-up charges by manipulative investigators and judges. Only 1% of cases in Russian courts result in acquittal. Indeed, the workings of a court in Russia have been described as “telephone justice”, with external pressure all too evidently exerted on judges to produce a particular verdict.

The noble Lord has spoken well about the case of Mikhail Khodorkovsky. The oligarch has spent a decade in prison after two consecutive trials—the second said to be more legally questionable than the first—but just as he is due to be released next year there are sinister hints that a third case could be on the way. The heaviest hint came in the form of the release of a documentary from the once independent but now wholly tainted television channel NTV, alleging that the oligarch was behind the murder of the mayor of Nefteyugansk in 1998. Putin himself has alleged several times that Khodorkovsky has blood on his hands.

He is not alone, a point that the noble Lord made forcefully. As he reminded us, there was the case of Sergei Magnitsky and his posthumous conviction for tax fraud, having died in prison after terrible experiences at the hands of the authorities. William Browder was also convicted of tax fraud in absentia and sentenced to nine years. He plans to appeal. The Yaroslavl mayor, Yevgeny Urlashov, was also recently arrested in the middle of the night. The former member of the United Russia party was elected last year as the city’s mayor. In local elections this autumn, he was preparing to support candidates from a new party started by billionaire Brooklyn Nets owner Mikhail Prokhorov. He has been accused of taking bribes and a judge has ordered him behind bars until 2 September.

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We have all been heartened to hear of the release, pending appeal, of Alexei Navalny after intervention by Putin. However, there is a good deal of room for suspicion that this may all be cat and mouse—that, in fact, he will stand in elections that will be fixed, he will be defeated and he will then be more severely treated in court than before. The objectives of the President will have been achieved.

All this is bad enough, but we also have to look at it in the context of other things that are happening in Russia at the same time. There is, of course, the terrible crackdown on NGOs, which are standing up for human rights and humanitarian issues. As of the end of June, at least 62 groups have received warnings or orders to register as foreign agents or have been taken to court by the authorities. Of seven groups already taken to court, five have lost administrative cases and have been ordered to pay fines and register. At least one has been closed. Another 15 organisations that received direct notices of violation from the prosecutor’s office may face administrative charges if they fail to register as foreign agents. Authorities have warned at least 38 groups to register as foreign agents if they receive foreign funding and plan to carry out what are described as political activities, which would be seen in this country as very legitimate lobbying, on the issues that concern them.

The treason law expands the legal definition of treason in ways that leaves broad room for officials to arbitrarily interpret and selectively apply it against individuals engaged in routine discussions with foreign counterparts or presenting human rights reports to international conferences. Russia’s public assembly law, adopted in 2012, dramatically increased the maximum penalty for violating rules regulating protests and introduced new restrictions on public protests. Russia’s constitutional court has ruled that several of the law’s provisions were unconstitutional and the Venice Commission of the Council of Europe has found that the amendments represent a step backward for the protection of freedom of assembly—and indeed urges Russia to repeal or revise key provisions. Libel, decriminalised at the end of the Medvedev presidency, has been recriminalised.

Some argue that these sad and disturbing trends in the administration of justice started with Putin’s re-election as president in 2012, in response to the protest movements in 2011. Personally, I do not accept this. It may have accelerated them, but there was far too much indefensible myopia in the West to what has been going on since the end of the 1990s. I was for some years rapporteur to the Parliamentary Assembly of the Council of Europe on the conflict in Chechnya, with its inevitable consequences for Dagestan and Ingushetia. All I can say is that the numerous disappearances, the torture, the intimidation of witnesses, the home burnings, the indiscriminate bombardments and the extra judicial killings—not least of brave journalists and human rights activists such as Anna Politkovskaya and Natalya Estemirova, who tried to speak the truth—were cruel and terrible and provided ample evidence of the ruthless distortion of so-called justice.

Attempts to pin down the Russians became frustrating in the extreme. We would repeatedly be told that an investigation would be initiated but seldom, if ever,

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did we hear of the completion of such an investigation, with those responsible brought to justice. There have been 200 European Court judgments against Russia with reference to the North Caucasus, the majority involving multiple violations of the European convention. The lamentable inadequacy of official investigations in too many of these cases has been on a scale that indicates a systemic and continuing failure. Recently, Putin has certainly been shoring up his political base by mobilising reactionaries, nationalists and xenophobes. He puts his public money where his purpose lies; the salaries of the riot police have been doubled.

In conclusion, to the cynics who say, “But what on earth can be done about all this?”, lots of things can be done. One is to make sure that far more frequently, far more vigorously and in many more cases what is happening is brought to public attention and a stand is made. The Committee of Ministers in the Council of Europe must stop pussy-footing around and pursue Russia relentlessly in carrying out what has been ruled necessary by the European Court. It raises these issues, but it does not pursue them as vigorously as it should.

10.27 pm

Lord Alderdice: My Lords, I also commend my noble friend Lord Trimble for bringing this important matter to your Lordships’ House and presenting it with his usual methodical and forensic accuracy. The timing of this debate is important, as he has pointed out, given the legal cases in Russia and those coming up at the European Court of Human Rights. However, the timing of the debate at this hour of the evening means that I do not intend to repeat what he has already said with such clarity about the case itself.

Part of the importance of this case, as the noble Lord, Lord Judd, said, is its significance regarding the deterioration of freedom and democracy in Russia. Since Mikhail Khodorkovsky’s arrest, there has been an extraordinary increase in the number of political prisoners in Russia; by most estimates, there are now more than in Belarus. The arrest of Khodorkovsky and Platon Lebedev in 2003 on fraud charges was probably the first major such politically motivated case brought against Kremlin opponents under Putin. Khodorkovsky was supporting the liberal opposition Yabloko party of my old friend, Grigory Yavlinsky, and challenging corruption and authoritarianism in Russia under Mr Putin, as my noble friend has said. The Russian leader—not the first to do so—saw the legal process as one that could be used to intimidate dissenters. In the words of one of my Russian colleagues, he almost killed off politics from 2003 until December 2011, when the people, outraged by election fraud, came out en masse to protest. In 2009, as my noble friend has pointed out, additional charges of embezzlement were brought against Khodorkovsky and Lebedev and, now, a third case against the defendants may effectively result in life sentences for them.

Then there was the case of the Yukos executive and former company director, Vasily Aleksanyan, who, according to the European Court of Human Rights, was improperly imprisoned and treated in an inhuman and degrading fashion, resulting in his premature death

23 July 2013 : Column 1292

in 2011, some time after he was released from prison as a result of international pressure. In the Yukos case, Russia abused the European Court of Human Rights by, for example, repeatedly replacing the ad hoc Russian judge five times, so that every time a new judge came in, he or she would have to familiarise themselves with all the papers, thus delaying the whole process.

The Pussy Riot case is another example of manipulation of the court system to silence critics. Here, three young women were convicted in August 2012 of hooliganism, motivated by religious hatred, for an illicit performance by their rock group in the Cathedral of Christ the Saviour in Moscow. Advised or ill-advised as that may have been, these performance artists were challenging the Kremlin’s increasingly close relationship with the Russian Orthodox Church, which has, sadly, become a central player in Putin’s strategy for national unity. Two of these women are currently serving two-year prison sentences.

The Bolotnaya Square case, brought against 12 defendants for allegedly rioting on Moscow’s Bolotnaya Square on 6 May, the eve of Putin’s inauguration, was largely viewed as a provocation by police to undermine the protest movement. Those 12 people, many of whom had never before even participated in political demonstrations in their lives, are now defendants in a show trial and face up to 10 years in prison.

Therefore, with Khodorkovsky, Lebedev, the pre-inaugural 6 May case and Pussy Riot, Russia is now host to many political prisoners—and their numbers are rising. For example, there is the recent case of the opposition leader, Alexei Navalny, and that of Yabloko’s Pyotr Ofitserov, whose only crime was knowing Navalny; Magnitsky’s post-mortem conviction has already been mentioned; Yabloko’s activists now in jail such as Maxim Petlin, on a trumped-up bribery charge as he fought with a developer who tried to destroy a public garden; and Ivan Bolshakov and Vasily Popov, who were convicted and given sentences on fake evidence for their political activities. Then there are the suspected murders of journalists and human rights activists. Anna Politkovskaya was mentioned by the noble Lord, Lord Judd, and Yuri Shchekochikhin investigated corruption in the KGB and died mysteriously—like Litvinenko—a couple of months after the first publication of his investigation; and there are many more.

Therefore, the Khodorkovsky case is important not just in itself but because it has paved the way for politically motivated reprisals in Russia. Intimidation and reprisals against political dissenters and opposition have turned into daily practices for the Russian authorities—from intimidation, searches and wiretapping to imprisonment and even, it is clear, extrajudicial killings. In addition to human rights concerns, this increase in political persecution is resulting in increased Russian asylum cases in the European Union, which has a direct impact on the EU economy and society. For example, one young man, Mr Dolmatov, was implicated in the Bolotnaya case, fled, and then committed suicide in a Dutch detention centre after being denied asylum in the Netherlands. Other well known figures such as Garry Kasparov and Sergei Guriev have left Russia for the US and France respectively due to their fear of arrest.

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Amid these discouraging highlights, it is important to remember that there are many Russians inside the country who are fighting for democracy and human rights. They need our unwavering political and moral support—from the whole of the international community. Thousands of Russians are working steadily for peaceful democratic change in Russia. Putin’s attempt to use the legal process and other processes to frighten his citizens through the prosecutions we have mentioned will not ultimately work. Dozens of new political parties registered last year and are running candidates in the local elections on 8 September. Thousands of civic activists are preparing to monitor those elections. Those anonymous but courageous Russians want to change their country for the better and they deserve our continuing attention and support.

While my colleague Sergei Mitrokhin maintains that Khodorkovsky is a courageous, inspirational and increasingly symbolic figure for the Russian opposition, Khodorkovsky himself, writing in an opposition newspaper interview just a few weeks ago after his 50th birthday and around 10 years in prison, remains cautious about the prospects. He said:

“The struggle for power with an authoritarian regime always involves serious and mass sacrifices—the loss of a business, a job, or liberty”—

and, he might have added, even your life.

These are serious matters. The least we in this country can do is to give Khodorkovsky and others in the Russian opposition all the support we can in their fight for freedom and democracy in their great country. I welcome the statement by the Prime Minister at the Banqueting Hall and I look to my noble friend to be as robust and strident as she can in condemnation. However, it would be dreadful if our response was only words and we were intimidated, as my noble friend Lord Trimble said, into not taking the kinds of actions that need to be taken to emphasise that we mean what we say. I look to my noble friend to encourage us in that way, too.

10.35 pm

Lord Hylton: My Lords, I thank the noble Lord, Lord Trimble, for raising this matter tonight. After the end of the Soviet Union, I had a long involvement in Russia with both churches and organisations for disadvantaged children and young people. In the course of this, I met Mr Khodorkovsky when he was a free man visiting London. I was impressed by him and by his efforts to make Yukos Oil a normal, responsible and transparent internationally quoted company. I also admired the work of the Open Russia Foundation that he started, which sought to make the young Russian generation full participants in a globalised world.

I agree that Mr Khodorkovsky may have breached an informal agreement with his Government by taking a position in politics. However, it is worth noting that he returned voluntarily to Russia in 2003 when he could have stayed abroad and joined other exiled oligarchs. He went back to prove his innocence, and in solidarity with his partner, Mr Platon Lebedev, who had by then been arrested. In the same year, the then chairman of the Russian President’s advisory commission on the judiciary said of the trial:

“There are more features of political games here than of justice”.

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It is also true that his legal counsel was harassed and wrongly called as a witness. In 2007, the European Court of Human Rights found that Mr Lebedev’s trial had violated international law, and in 2011 it awarded damages to both men. Have these damages yet been paid?

The fate of Yukos Oil was also most unsatisfactory. Its assets were compulsorily sold for less than full value to semi-state companies such as Gazprom and Rosneft. It is likely that the treatment was a breach of the Energy Charter Treaty 1994, to which Russia was a party. The fact that Russia got away with this behaviour led naturally to BP’s bad experience in its joint venture with TNK, and to Shell’s serious problems over Sakhalin Island.

I turn to the second trial, which took place over 21 months in 2009-10 and led to a prison sentence of 13 and a half years. It is highly relevant that it was criticised by Russian institutions as well as by the International Bar Association and Amnesty International. More important critics were our Foreign Secretary and the noble Baroness, Lady Ashton, on behalf of the EU. A further point is that the location of Mr Khodorkovsky’s imprisonment may have violated Russia’s criminal executorial code, which states that convicted persons should be held in their home region and not sent to Siberia. The implications for visits from their family and others are obvious.

A wise former British ambassador to Russia commented on the case in 2009. He wrote that our two countries had many common interests and that it was unwise to expect a rapid Russian evolution to the full rule of law and democracy, but that nevertheless Her Majesty’s Government should stand by the European Convention on Human Rights and Russia’s other international obligations, and should make clear their abhorrence of Russian behaviour in the Litvinenko case, over Abkhazia and South Ossetia and over the cyberattack on Estonia.

In the light of this advice and of this debate, what is the Government’s response? Will they press the European Court of Human Rights in Strasbourg to bring forward consideration of pending applications by Khodorkovsky and Lebedev? This, along with a strong British response, could prevent the holding of a third trial of the two men. It could also lend some protection to Mr Alexei Navalny, who has already been mentioned in the debate. He is a Russian anti-corruption lawyer and opposition leader who faces a five-year sentence. I urge the Government to take up this matter very strongly and not to let it fade away.

Baroness Williams of Crosby: My Lords—

10.40 pm

Lord Bates: My Lords, I would be happy to give way to the noble Baroness because I am sure that her remarks will be of greater interest to the House than mine. Like the noble Lord, Lord Hylton, I pay tribute to the noble Lord, Lord Trimble, for securing this debate and, also like him, I had the opportunity to meet Mr Khodorkovsky in 2003 at the World Economic Forum annual meeting, where he spoke very passionately and persuasively. He was the star of the show. At the time, he was Russia’s richest man and chief executive

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of Yukos and could seemingly do no wrong. He spoke of the importance of corporate governance and independent oversight and was innovative in bringing foreign investors on to the board of his company to improve oversight. He was passionate about shareholder rights and issues of that nature. We were all greatly impressed by this man. At that meeting he invited us to attend the first annual corporate governance summit on investment in Russia, which was to be held in Moscow later that year. We all dutifully turned up in Moscow only to find that our host and sponsor was in prison. That was a bit of a shock and did immense damage to foreign perceptions, particularly as regards foreign investment as many institutional investors had turned up.

I do not think there is any doubt about how this situation came about. Mr Khodorkovsky was a very rich and powerful man. In the period between the January Davos summit and his own summit in Moscow he had declared that he intended to stand down from the chief executive position at Yukos in 2007.Given that President Putin’s term was to come to an end in 2008, that was a very clear indication that Mr Khodorkovsky’s intent was to pursue political office. It would not be the first time that the lethal cocktail of oil, political ambition and extraordinary wealth led to some pretty unpleasant happenings. The mechanism by which the events happened became clear afterwards. In an article in Timemagazine in January 2011, there was a very interesting interview with Igor Yurgens, who was principal adviser to President Medvedev. Igor Yurgens said:

“Everyone understood [the first trial] was a case of selective justice. They all broke the law and only one was put in prison”.

A senior official stated:

“No one said it out loud, but of course it’s impossible to mention Russia’s investment image”

abroad without referring to what happened to Khodorkovsky. Therefore, it was clear that immense damage was done to foreigners’ perception of the country.

William Browder, whose Hermitage Fund was the largest foreign investor in Russia, said in the Time article:

“It seems they’ve decided they don’t care what anyone thinks outside of Russia”.

Browder says that the Russians need to ask themselves why Russian stocks have a market value 50% to 70% below their peers in other emerging economies. The reason is simple: in Russia, you have property rights conditional on the whims of various corrupt officials who may decide your future. We hear all that and we think, “There the Russians go again. We have seen it all before. The Russians are up to their usual tricks. Putin is up to his usual tricks”.

I close by making a slightly wider point. I would argue that, going back through history, one of the greatest weaknesses of British foreign policy is that we have manifestly failed to understand Russia. Churchill famously described Russia in 1939 as,

“a riddle, wrapped in a mystery, inside an enigma”.

It has puzzled us and we have never quite got to grips with it or how to respond to Russia in foreign relations.

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In a thoughtful paper by Andrew Monaghan for the Foreign Policy Centre entitled, UK-Russia Relations: a Bad Case of Mutual Misunderstanding, he says that the political other is the problem,

“particularly as often portrayed in an over-simplified, headline-based approach. Each appears to be a major target for the mass media of the other, which tends to emphasise and often exaggerate the conspiratorial element of the other, usually framed in spies, hostile intelligence operations, ‘cloak and dagger’ intrigue and murder, and competition for international influence”.

That is indeed probably a pretty accurate description of how relations have been, but in many ways, it belongs to the pages of a John le Carré novel such as Smiley’s People. We need to think about how our perceptions of Russia can themselves come in from the cold.

In this regard, we need to recall how, going back through history, Russian-UK relations have been a strength. As far back as the Napoleonic Wars, the Great War and the Second World War, we have been on the same side; our interests have been aligned. When we are tempted to engage in that rather simplified gesturing towards Russia, it does little to improve our misconceptions. If we really want to understand the Russian people, we need to start reading a little more of Pushkin, Chekhov, Tolstoy and Dostoevsky and a little less of John le Carré, because Russia is today an important point of reference for us in foreign relations. If we want to do anything about the bloodshed and the appalling situation in Syria, if we want to do anything about Iran and its nuclear aspirations, there is no question but that we cannot do it without Russian engagement.

The Russians, in my limited experience, are fully aware of the shortcomings of their own systems of government, but they are also hugely proud of their country and implacable in their belief that it is solely their responsibility to sort it out, because they are the only ones who truly understand it. In that respect, at least, they are rather like us.

10.47 pm

Baroness Williams of Crosby: My Lords, I apologise to the noble Lord, Lord Bates; I had not realised that he was there waiting to speak. I join in his congratulations to the noble Lord, Lord Trimble, not only on embarking on this debate but on giving us an extremely concise and excellent description of the whole of the Khodorkovsky case. He did it in a brilliant way.

I am rather like the noble Lord, Lord Hylton: I know Mr Khodorkovsky to some extent. I have come across him when I have spoken or been lecturing at various higher education institutions in Moscow and in other parts of Russia. What I can say about him is that he is an extremely direct man. He is not very good at the more gracious elements of the language, but he cannot stop himself from speaking out honestly about the things that concern him, the things that he thinks are wrong. He is also a man of that rather rare Russian characteristic, an almost crazy kind of courage. One can say to him and to other Russian dissidents that perhaps it is unwise to speak out, that it may be foolish to fall out with the authorities, but they are almost unable to be stopped, in many ways. They have the kind of almost crazy kind of courage that one associates with the work of Dostoevsky or Chekhov. It is still there.

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That brings me to what the noble Lord, Lord Judd, said. Alongside the long list of terrible misjudgments, unfairnesses and abuses, about which my noble friends Lord Trimble and Lord Alderdice have already spoken, it is also true of Russia that there is always an amazing new harvest of attempts to get freedom going again. NGOs spring up like grass in the spring. New parties spring up all over the place; they die and come back again. What is very striking about Russia—and one can see it slowly moving on—is the level of growing commitment among young Russians to something resembling not so much the rule of law as the rule of liberty, and their willingness to put themselves at risk in order to achieve it.

The noble Lord, Lord Hylton, spoke about the efforts that Mr Khodorkovsky had made to try to deal with the plight of disadvantaged and abandoned children, for example. He supported them financially in a courageous and not at all prejudiced way. It does not seem to have done him any good, but there is no doubt that he went out of his way to spend money for that purpose. He also went out of his way to spend money on educating young Russians, and has been willing to take part in quite risky episodes of opposition. One that I might refer to involved Pussy Riot, which has been mentioned. In prison, Mr Khodorkovsky suddenly made public statements about his support for them, which seemed to many of us a rather extraordinary thing to do.

What can we do about it? There is a real prospect of a new generation in Russia which is much more open to democracy than the present one. Yet it sees itself as having a President who talks the language of the old Tsars, because they were brilliant at imprisoning almost everybody. That was their favourite way of silencing opposition and Mr Putin seems to be following in that tradition.

There are three points to make. One was implied by my noble friend Lord Bates. He is quite right to ask whether there might not be reactions in the market to attempts to stop, for example, innovation and technical and other relationships with other countries. That is something that we have not explored sufficiently and is something that Mr Putin would understand; perhaps much better than a great many other fine moral statements about freedom, which all of us share but which appear to cut little ice with the Russian President.

The second area, which is extremely important, is where we can exercise influence through the many other links we have with Russia: educational, musical, artistic and so forth. The third area—which I shall be quite blunt about—is something that we as a country might want to consider rather more carefully: which Russians we allow to come and rest in our country and which Russians we might find not fully acceptable. There is something that, in a way, grinds on one’s mind when we allow such a string of Russian oligarchs with dodgy pasts in terms of their behaviour in the economic world by seizing Russia’s resources and exploiting them, then to come to Britain where they will be protected by the police in order to pursue obscure rows with one another, which are then dealt with in the British courts. There is something odd about the fact that it is not Russian dissidents, asylum seekers and courageous, outspoken men and women who come to this country, but increasingly people who

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come here almost entirely because of the assets they hold and the money they have. We will often find that those seeking asylum are likely to be turned back.

I once again praise my noble friend Lord Trimble and thank him for bringing this debate before us. I also thank my noble friend Lord Alderdice for what he had to say. It was important to speak about the long string of Russian crimes, sentences and misjudgments, and to say loud and clear that we need to exercise over a much wider range than we have so far sought to do, steps that will make it very difficult for Russians to continue to do what they are doing with Khodorkovsky.

I end by saying what my noble friend Lord Trimble has talked about: for example, exploring money-laundering practices, washing and cleaning out money which has come by dubious methods. This is something that we should explore. The OECD has just mounted new action in this field. Perhaps that is something that we should look at, which might speak more loudly to President Putin than most of the statements we might make—even in the most oratorically splendid ways—in this House and elsewhere.

10.55 pm

Lord Pannick: My Lords, I declare an interest or, more precisely, a brief. For the past five years I have represented Mr Khodorkovsky as his leading counsel in his applications to the European Court of Human Rights, where he is complaining about his two trials, convictions and prison sentences. It would therefore be inappropriate for me to comment at all on the merits of those applications and I will not do so. However, I am grateful to the noble Lord, Lord Trimble, for introducing this debate. He has provoked valuable contributions from all noble Lords who have spoken and has given me the opportunity to address certain wider issues.

The first of these is the quite extraordinary delays by the European court in reaching its judgments. Your Lordships know that Mr Khodorkovsky has been detained and then imprisoned by the Russian authorities since October 2003. His first application to the European court was filed in February 2004. It complained about his arrest, his detention, the conditions in which he was detained and a number of other matters. The European court took more than seven years to reach a judgment, which was delivered in May 2011, finding a number of violations of the convention by the Russian authorities.

Mr Khodorkovsky filed a second application in Strasbourg in March 2006, and that one complained about his first trial conviction and sentence, the trial ending in May 2005. The European court will give judgment on that application this Thursday coming, which is more than seven years after the application was lodged in Strasbourg. There is a third application which Mr Khodorkovsky filed in November 2007, and that complains about his second prosecution and subsequent trial, conviction and sentence. The second trial began in March 2009. It ended with a further prison sentence in December 2010. This third Strasbourg application remains pending some five and a half years after it was filed, and indeed it is still in the early stages of consideration by the European court.

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The Minister will know that the Strasbourg court regularly criticises national courts for failing to decide cases within a reasonable time, contrary to Article 6 of the European Convention on Human Rights. Can I ask the Minister whether the Government think that it is satisfactory for the European court itself to take such lengthy periods of time to decide cases, particularly in relation to an applicant who is complaining about his detention and his imprisonment? What representations will the Government make to the Strasbourg court and what steps will the Government take in the Council of Europe urgently to address these delays?

The second point I want to touch on is the record of the Russian Federation in Strasbourg. Last year, in 2012, the Strasbourg court gave 134 substantive judgments in cases concerning the Russian Federation. In 122 of those, it found at least one violation of human rights. Some 36 of the cases concerned breaches of the right to a fair hearing, while 64 cases involved breaches of the right to liberty or security of person. The year 2012 was typical of the appalling human rights record in Strasbourg of the Russian Federation. The Minister will also know that from 2004 until 2010, the Russian Federation, alone among all Council of Europe countries, refused to ratify Protocol 14 to the convention to make the Strasbourg procedures more efficient. What representations are the Government making to the Russian Federation about Russia’s appalling human rights record, and, to echo other noble Lords tonight, what action are we taking in this respect?

There is a third and final point that I want to touch on. The United Kingdom Government have regularly and regrettably reacted to adverse judgments in the European Court of Human Rights with complaints, criticisms, and sometimes years of delay in implementing adverse judgments against this country. The issue of votes for prisoners is the most extreme example but, regrettably, it is not the only one. Earlier this month, the Strasbourg court decided that prisoners serving whole-life tariffs must receive a periodic review of their sentence. The Prime Minister’s spokesman was quoted as saying that the Prime Minister was,

“very, very, very, very disappointed. He profoundly disagrees with the court’s ruling”.

Does the Minister recognise—do the Government recognise—that the prospects of encouraging the Russian Federation to respect judgments of the Strasbourg court and to adhere to basic human rights principles are simply undermined by the Government’s own lack of respect for the judgments of the Strasbourg court?

I am very grateful to the noble Lord, Lord Trimble, for introducing this debate, and I look forward to hearing the Minister’s response.

11.02 pm

Lord Wood of Anfield: My Lords, I, too, would like to commend the noble Lord, Lord Trimble, for the great knowledge, conviction and clarity with which he spoke about this subject. I thank him for bringing this timely debate, coming as it does two days before an important judgment by the European Court of Human Rights on whether Mr Khodorkovsky’s rights to a fair trial under Article 6 of the European convention have been violated.

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Mr Khodorkovsky has been detained and imprisoned by the Russian authorities since October 2003, nearly 10 years ago. It is fair to say that he is a controversial character in post-Soviet Russian history, as the noble Baroness, Lady Williams, pointed out. Prior to his arrest in 2003, he enjoyed an astonishing—and astonishingly rapid—rise to economic success, and to cultural and political prominence. He had a career ranging from internet trainer, philanthropist and funder of political parties to Minister of Fuel and Energy and financial trade magnate. If the proposed merger between Yukos and Sibneft had gone through after 2003, he would have been at the helm of one of the world’s largest oil companies.

During this period, however, he became the subject of a range of allegations concerning fraudulent activity: allegations that he engaged in asset-stripping of Yukos for private gain, and that he engineered forced sales of oil within the holding company to transfer billions of roubles to shell companies owned exclusively by him. Whatever one’s view of these allegations, the concern, which tonight’s debate has shown is shared by Members on all sides of the House, centres on Mr Khodorkovsky’s experience of Russian justice—the circumstances and process surrounding his arrest, trial and continued detention. The central point is that expressed by the Council of Europe Parliamentary Assembly’s Committee on Legal Affairs and Human Rights in November 2004, when it said that,

“the circumstances of the arrest and prosecution of leading Yukos executives suggest that the interest of the State’s action in these cases goes beyond the mere pursuit of criminal justice”.

I want to talk briefly about three aspects arising from the long and continuing saga of this case: first, the circumstances surrounding Mr Khodorkovsky’s arrest and charges; secondly, his treatment in the Russian judicial and prison system since he was detained; and thirdly, wider lessons for the state of justice in Russia today. Starting with his initial detention in 2003, Mr Khodorkovsky was arrested after an investigation into the tax and financial arrangements surrounding Yukos’s purchase of a stake in a company called Apatit. He was arrested to appear as a witness, but within hours of being in custody he was charged with fraud. In 2011, the European Court of Human Rights found that his arrest was,

“unlawful as it had been made with a purpose different from the one expressed”,

and that he had been held in “degrading and humiliating conditions”.

It has been widely thought that the motives for his arrest and prosecution go well beyond the pursuit of justice. Many have noted, for example, that in February 2003, just a few months before formal investigations began, Mr Khodorkovsky accused the Russian Government of large-scale corruption at a meeting with President Putin that was broadcast on Russian television. The European Court of Human Rights found in 2011 that it did not have sufficient evidence to conclude that his first trial was politically motivated and that the charges against him were grounded in “reasonable suspicion”. However, Mr Khodorkovsky’s family and supporters, as well as the Council of Europe

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committee that I referred to earlier, see his detention as motivated by a desire to weaken an outspoken political opponent.

Whatever one’s views on political motivation, two worrying aspects of Mr Khodorkovsky’s initial prosecution seem clear. First, the arrest furthered a widespread impression that the Russian authorities were engaged in selective prosecutions against those oligarchs and senior businesspeople who had come into conflict with the Putin regime. In the words of the US State Department, the arrest,

“raised a number of concerns over the arbitrary use of the judicial system”.

It damaged not just the Russian economy and the climate for investment but confidence in the consistent application of the rule of law in Russia.

Secondly, it is difficult to avoid the conclusion that part of the motivation behind his arrest and subsequent treatment was to enable the Russian state to regain control of strategic economic assets. A 2009 Council of Europe report spells this out clearly, noting that,

“Yukos, a privately owned oil company”,


“made bankrupt and broken up for the benefit of the state-owned company Rosneft. The assets were bought at auction by a rather obscure financial group, Baikalfinansgroup, for almost €7 billion. It is still not known who is behind this financial group. A number of experts believe that the state-owned company Gazprom had a hand in the matter”.

What representations we have made to Russia about the Government’s view of this first trial, given that this is the issue at hand in Thursday’s judgment? In addition, given that the Russian criminal procedure code stipulates a direct dependence between the court’s acknowledgement of the violation of Article 6 of the European convention and the necessity of cancelling a sentence, can the Minister tell us whether the Government have talked to the Russian Government about our expectation that they should comply with the decision of the court and adjust his sentence accordingly?

I turn now to the second set of issues: the way in which Mr Khodorkovsky has been treated by the Russian judicial and penal system since his trial. The timeline of his 10 years in prison is both depressing and bizarre. In 2005, he was taken to a labour camp attached to a uranium mining and processing plant—at which, according to my quick Google search on it, inmates now have,

“much better chances of survival than in the past”.

In April 2006, he was attacked by a prison inmate. In February 2007, new charges were brought against him just before his parole was due, one year before the Russian presidential election. The emergence of new charges related to the alleged crimes of which he was initially convicted. At the time, President Obama said it looked like,

“a repackaging of the old charges”.

France’s Human Rights Ambassador expressed a similar view, saying:

“It seems odd that Khodorkovsky could be sentenced twice on facts which look the same, or even contradictory … the charges seem to be so unclear … the defence does not even know what the precise charges are”.

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In August 2008, he was denied parole for myriad reasons including—famously—because he refused to attend sewing classes in jail. When he was convicted of the second tranche of offences in October 2010, the judge convicted him and colleagues of stealing 40% more oil than the prosecutors had even alleged.