Clearly, Parliament will want to judge both the report of the Joint Committee and the new legislation that replaces this Bill. It will be a new Parliament; it will be a new committee. It will not be the committee chaired by my noble friend Lord Blencathra. The amendment would make it difficult for this to happen. It would also curtail proper public debate about this issue. I am not a last-minute convert in the way that my noble friend Lord Strasburger has described. I believe in transparency; I believe in talking about issues that concern the public. That new legislation will set out new powers and capabilities for the future—potentially wide-ranging powers. The legislation that we have before Parliament today just maintains the status quo, and we have heard the understandable concerns about the pace of its passage.

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Perhaps I might say something in response to the speech by the noble Lord, Lord Rooker—I nearly called him my noble friend; I should not say that. He talked about language and the way we communicate difficult ideas. He referred to the problems that elites and those of us with responsibility have in talking to the public as a whole—the use of language. I could not agree with him more. All Governments and all Parliaments must seek to identify through language. It is the thing that we have in common; it is the way in which we communicate with each other; it is the way in which I hope that I am convincing the noble Lord, Lord Judd, of the reason for having this particular date. Language is important.

Lord Judd: I am really grateful to the Minister for taking my point. If we really believe what he is saying, and I do not doubt for a moment that he is absolutely sincere, the public have the right to be in the picture before they decide how to cast their vote in a general election, because these issues are central to the whole purpose of government. From that standpoint, the anxiety of the public is that it is all a closed club that is dealing with this in the parliamentary context. If we are going to take the report so seriously and are putting so much emphasis on Clause 7, it is a great shame that we will not get the public in on the act before the election takes place.

Lord Taylor of Holbeach: What the noble Lord is talking about is political leadership. Political leadership, I am sure, will mean that there are opportunities to discuss this matter during a general election.

This has been a good debate, and I am quite happy that we have had to discuss this issue, but I urge the noble Lords who have proposed the amendment to withdraw it.

Lord Phillips of Sudbury: My Lords, I agree with my noble friend that this has been an excellent and worthwhile debate. On behalf of my co-sponsors, I thank all those who have taken part.

We have a wealth of experience in this place, which has been demonstrated today wonderfully well. I shall be quite frank: my views have been influenced by what has been said. So long as the Minister was serious, as I am sure he was because he is a sincere man, and so long as the tenor of what he said is carried into effect in the time ahead of us—namely, that, as he put it, the Government will make haste but take the public of this country into consideration in defining and putting together the new legislation to come—it is appropriate for this amendment to be withdrawn. The arguments made about the timescales, especially given the forthcoming general election, seem to me to be correct. On that basis, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 8 agreed.

Title agreed.

House resumed.

Bill reported without amendment.

17 July 2014 : Column 738

Hallett Review


2.10 pm

The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD): My Lords, with the leave of the House I will now repeat a Statement made earlier today by my right honourable friend Theresa Villiers, the Secretary of State for Northern Ireland. The Statement is as follows.

“Mr Speaker, with permission I would like to make a statement on the report by Lady Justice Hallett on the scheme dealing with the so-called on-the-runs.

In February, Mr Justice Sweeney ruled that it would be an abuse of process to proceed with the prosecution of John Downey in connection with the Hyde Park bombing on 20 July 1982 and his trial was stayed.

The Hyde Park atrocity resulted in the brutal murder of four members of the Blues and Royals. Seven horses were also killed and just hours later another bomb in Regent’s Park took the lives of seven members of the Royal Green Jackets. These were appalling terrorist outrages carried out by the Provisional IRA for which there could never, ever be any justification. So in this House I hope that our first thoughts today should be with the families and friends of those murdered that day in July 1982. The Government fully appreciate the deep sense of hurt and anger that the collapse of the Downey trial has caused both to them and victims of terrorism more widely. I would like to repeat the apology I gave in March for that. This Government are profoundly sorry for the hurt that this case has caused.

The Downey case highlighted the administrative scheme introduced by the previous Government to deal with so-called on-the-runs. These were people who had left Northern Ireland and believed that if they returned to any part of the UK they might be arrested in connection with terrorism offences. The Government responded to the widespread public concern expressed about the OTR scheme by establishing a judge-led independent review of the scheme. I am grateful to Lady Justice Hallett for taking on this task. Anybody reading the report will be left in no doubt that she has provided us with a rigorous and comprehensive account of the scheme.

The Government accept the report and all its recommendations in full. On the central issue of whether the OTR administrative scheme gave suspected terrorists immunity from prosecution, Lady Justice Hallett is very clear. She concludes:

‘The administrative scheme did not amount to an amnesty for terrorists ... Suspected terrorists were not handed a “get out of jail free” card’.

The Government have always been clear that, if sufficient evidence emerges, then individual OTRs are liable for arrest and prosecution in the normal way. So I repeat again today to the people holding these letters: they will not protect you from arrest or prosecution and, should the police succeed in gathering sufficient evidence, you will be subject to the due process of law.

Lady Justice Hallett sets out the origins, operation and evolution of the scheme. She agrees with successive Attorneys-General that the scheme was lawful. The

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last letter sent by the Northern Ireland Office was issued in December 2012 and I repeat today that, as far as this Government are concerned, the scheme is over.

The report sets out a number of serious criticisms of how the scheme operated, including significant systemic failures. Lady Justice Hallett states:

‘The scheme was not designed; it evolved. As a result there was no overall policy and no overall responsibility/accountability for it’.

The scheme,

‘lacked proper lines of responsibility, accountability and safeguards … When errors came to light opportunities were missed to rectify them’,


‘there was no risk assessment’.

In the case of Mr Downey, Lady Justice Hallett concluded, in line with the Sweeney judgment, that it was not the fact that Mr Downey was sent a letter that caused the trial to collapse; it was the fact that the letter contained an incorrect and misleading statement on which Mr Downey relied. The report finds that if the scheme had been properly administered,

‘John Downey would not have received a letter of assurance’.

She can find no ‘logical explanation’ of why PSNI officers failed to pass on the fact that Mr Downey was still wanted by the Metropolitan Police, nor why they failed to correct the error once it became known.

Lady Justice Hallett finds that 13 OTRs received the royal prerogative of mercy between 2000 and 2002 and that in all cases this was to release people from having to serve some or all of the rest of their sentences. No pre-conviction pardons were issued. The report criticises the lack of a,

‘central register of documents recording the use of the RPM’.

While she finds,

‘no evidence of the UK Government actively seeking to obscure the scheme from the public’,

Lady Justice Hallett states that it,

‘was not given much publicity and that important groups’,

such as victims and their families, ‘remained unaware’ of it. The report acknowledges the hurt and distress that this has caused to many victims.

Lady Justice Hallett has found two examples of somebody receiving a letter in error, in addition to the Downey case. She has also identified 36 cases dealt with between February 2007 and November 2008 which should be given priority in the exercise now under way by the PSNI to check whether the change in status from ‘wanted’ to ‘not wanted’ can still be justified.

A key question has arisen as to what the Government intend to do next to ensure that there are no more failed prosecutions like that of Mr Downey. The report recommends that we now,

‘seek legal advice, in conjunction with the police and prosecuting authorities, to determine whether’,


‘should notify any individuals whose status, as communicated to them, has changed or may change in the future’,

and that we,

‘consider how to mitigate against further abuse of process arguments, for example by confirming to recipients the factual and contemporaneous nature of their letters’.

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The Government will act on these recommendations and I give the House this assurance. We will take whatever steps are necessary, acting on the basis of legal advice and in conjunction with the police, the Justice Minister and prosecutors, to do everything possible to remove barriers to future prosecutions.

The bulk of this report deals with decisions made by the previous Government in respect of their handling of the political process in Northern Ireland. It is not my role to speak for my Labour predecessors as Secretary of State; they are more than capable of speaking for themselves on the role that they played and the decisions that they took. Yet I will say this: I might not agree with every decision that they made in relation to the OTR issue but, whatever differences of emphasis and approach we might have, I recognise that they were dealing with very difficult judgments in very difficult circumstances and that they were at all times acting with sincerity in seeking to move the peace process forward.

I emphasise that Lady Justice Hallett has found no evidence that either politicians or officials ever interfered improperly with due process of law or the operational independence of police or prosecutors. The report concludes that the scheme did not impact on police investigations into historic terrorist offences. PSNI and Historical Enquiries Team files on terrorist crimes were not closed. There was no chilling effect.

It is well known that the current Government allowed the checking process to continue after we came to power in May 2010, but both I and my predecessor are very clear: had we at any time been presented with a scheme that we thought amounted to an amnesty, immunity or exemption from prosecution, we would have stopped it immediately. That would have been consistent with the opposition of both coalition parties to the Northern Ireland (Offences) Bill introduced by the right honourable Member for Neath in 2005, which was subsequently abandoned.

This Government believe in the rule of law, and that applies across the board to everyone, without fear or favour, including those in possession of letters issued under this scheme. There are many lessons to be learnt from this episode, not the least of which is the crucial importance of continued efforts to find an agreement on the divisive issues of flags, parading and the past. In dealing with the painful legacy of Northern Ireland’s past, we need a process that is transparent, accountable and balanced, which puts the era of side deals firmly behind us and which commands the confidence of all parts of the community. The Government remain fully committed to working with all parties in Northern Ireland in their efforts to deliver that important goal. I commend this Statement to the House”.

My Lords, that concludes the Statement.

2.21 pm

Lord McAvoy (Lab): My Lords, I thank the Minister for repeating the Statement. I endorse her initial comments about our thoughts today being with the relatives and friends of the soldiers who lost their lives in Hyde Park. The suffering of those families, as with the families of other victims of terrorism, will go on for who knows how long.

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Her Majesty’s Opposition welcome Lady Justice Hallett’s report today and accept her findings in full. We acknowledge those findings, including those that make it clear that there should have been a more systematic approach to the operation and an ongoing review of the scheme. There are lessons to be learnt by both the Northern Ireland Office and the Police Service of Northern Ireland.

We are pleased that Lady Justice Hallett shatters a number of myths. She makes it clear that the scheme was not unlawful and that files on terrorist offences were not closed by the PSNI. Most importantly, she states categorically on the very first page of her report that the administrative scheme was not an amnesty, nor did it ever amount to a “get out of jail free” card. On legality, while Lady Justice Hallett questions the structure of the scheme, she makes clear on page 144 of the report that the administrative scheme was not unlawful. On amnesty, she makes clear on page 28 that:

“there was no question of the administrative scheme granting an alleged offender an amnesty or immunity from prosecution. It is clear from the views expressed at the time that the Attorney General would not have agreed to the process had that been the intention or the effect. It is also clear that successive Attorneys General maintained the same position throughout the life of the scheme”.

While Lady Justice Hallett is right to conclude in her report that the scheme was not secret, I acknowledge the concern of politicians and others who feel that they should have been given more information about the nature and application of the scheme. This includes the First Minister and Justice Minister after the devolution of policing and justice in 2010.

Most crucially, if we are going to move forward, do the Government accept that the report reinforces, rather than undermines, the urgent need for a robust, transparent and comprehensive process to deal with Northern Ireland’s past? We contend that it is now clear that the UK and Irish Governments must play a far more hands-on role in supporting Northern Ireland’s political parties to reach an agreement on the past and parades. Until this happens, one can conclude only that stalemate will prevail, leaving a dangerous vacuum to be filled by those who seek to undermine the peace process through either political means or, worse still, a return to violence.

As the Prime Minister has stated, it would be wrong to be retrospectively selective about key elements of an historic peace process that ended 30 years of violence and terror. I came into the other place in 1987 with a longstanding interest in Northern Ireland through my own family and my wife’s family, one from the unionist side and one from the nationalist side. I remember that period well and I well remember my time on the Northern Ireland Select Committee, with friends like Peter Robinson, James Cran from the Conservative Party and the late, great Eddie McGrady. It was an extraordinary period that demanded historic and difficult compromises. However, as a result of that momentous agreement, Northern Ireland has been transformed. Over the past 15 years, PSNI figures demonstrate the dramatic fall in all forms of sectarian violence, casualties, bombings, shootings and murders. These

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rapid improvements in the security situation have led to a striking change in the local economy and the international profile of Northern Ireland. In addition to the official bodies, at grass-roots level there are numerous heart-warming examples of reconciliation and normalisation across communities. These changes should never be underestimated or taken for granted.

Tribute must be paid to the many individuals who contributed to that process, including noble Lords in this Chamber. There were historic compromises from the unionist side in accepting the peace process and, Sinn Fein would maintain, historic compromises on its part too. Through it all, the guiding light and assurance must be that everyone who signed up to the agreement agrees that the constitutional status of Northern Ireland will only ever change with the consent of the people. Many people made that compromise and we owe it to them to continue doing that.

Credit should also go to the intensive engagement of the UK and Irish Governments working closely together. In the UK context, Sir John Major deserves credit for starting the process; if a start is never made, you will not get anywhere. However, it was Tony Blair’s decision to expend unprecedented prime ministerial capital on achieving peace in Northern Ireland that was decisive. I make that point because some would like to use the controversy generated by the on-the-runs as a stick to beat Tony Blair with and allow legitimate public concern to distort the truth about a peace process in which so many people, including, as I have said, some in your Lordships’ House, played a part. No one is saying that it is a perfect peace process—there is no such thing—but it is a peace process of which I and my party remain incredibly proud. It has saved lives and allowed the current younger generation in Northern Ireland to grow up largely free from the fear and the reality of violence. Frankly, this would not have happened without Tony Blair and his Government.

I remember the time well. I was in the Whips’ Office and I played a small part liaising with various parties. Not only is my party proud of the peace process but we as the Westminster Parliament played a leading role in it collectively. The co-operation that came from all corners of both Houses and from all political parties was outstanding. Therefore, while this is a difficult situation that we need to learn from, it should not be used to undermine or diminish the achievements that we have made collectively so far.

2.29 pm

Baroness Randerson: I thank the noble Lord for his recognition of the complexity of the situation. The noble Lord raised a number of different points, and I will do my best to address most of them.

In relation to the recognition that there were systemic problems that led to the problems that the Downey case revealed, the Northern Ireland Office is already reviewing its procedures. The Permanent Secretary is leading that work, which is under way. The noble Lord referred to the fact that the report shatters some myths. It is important to note that Lady Justice Hallett emphasised the importance—in her very last paragraph, I believe—of people not making political capital out of this situation. She also emphasised in the report

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that the misrepresentation of the scheme has caused anguish to the families of victims. It is important to remember that the law officers and legal officials who appeared not just before Lady Justice Hallett but also before the Northern Ireland Affairs Committee have all emphasised that this was a legal scheme.

My right honourable friend the Secretary of State has apologised for failing to brief Ministers of the Northern Ireland Executive. She recognises that that was a failing. She is now, however, working very closely with the Justice Minister in Northern Ireland to deal with the outcome of this review. I recognise—and the noble Lord emphasises this point—that Northern Ireland continues to rely on leadership. There have been outstanding men and women of great courage across communities in Northern Ireland in recent years who have stood up for their beliefs and for peace. We must hope that that process continues. I have to say that I first visited Northern Ireland in the late 1990s and when I go back now I am always struck by the progress that has been made. Devolution has changed the centre of gravity and it is important now that it is the devolved Administration that need to take the lead. The Government fully recognise the complexity and difficulties that the previous Government were facing over many years of the peace process.

2.33 pm

Lord Alderdice (LD): My Lords, I welcome the Statement from my noble friend and identify these Benches with the concern for the victims who have been spoken about by noble Lords on both sides of the House. However, we must do more than simply speak about our concern for the victims. We must act in a way that shows real concern.

A number of things have been revealed in this report—it is more than 270 pages long, so it is difficult to get a full assessment of it in such a time. Already it seems to me that some of the assessments are mistaken, including some of those identified in the Secretary of State’s comments. For example, she said that,

“the bulk of the report deals with decisions made by the previous government in respect of its handling of the political process”.

It seems to me that the bulk of the report is not about the decisions but about the process that led to the decisions. It is quite clear that the process was shambolic and was a whole approach to government from the very top. Decisions were not taken in a formal and proper way. I know that to have been the case during the process itself.

I agree with the noble Lord, Lord McAvoy, about not taking it to pieces and certainly not behaving retrospectively. However, some of us made criticisms at the time about the way in which it was being handled. Subsequently, many of the problems that we continue to experience are because of the unwise ways of reaching decisions about prisoners, weapons, dealing with the past and issues of that kind. It is quite clear that time after time Lady Justice Hallett identifies the failure to keep any list of pardons and the failure to keep any account of the decisions that were made. I think that this Government, as well as any future, never mind past Government, must learn about process. It is not sufficient to have this kind of sofa government,

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or any emblem of it, particularly when one is dealing with matters that are serious life and death issues and matters of law.

We have to go back and revisit those things to learn from them—not just to be critical, but to learn that we should not behave in that way again. I am afraid that the evidence is that the lesson has not yet been learnt. The Secretary of State is now saying, quite properly, that she will make sure that she informs Ministers in the devolved Government. That means that they were not properly informed before. We had a Bill yesterday where we were looking at legislation about arrangements for the NCA, and so on. It was quite clear that there was no discussion at an early stage with the Government of the Republic of Ireland and the Justice Minister there. I know that because I raised it with the noble Lord, Lord Taylor of Holbeach, and the reply was almost, “What a shocking suggestion”. The fact is that we should have been doing those negotiations.

Of course we should not be unhelpfully critical, but we are here to hold government to account and to try to improve the processes. It is quite clear that some of those processes were seriously mistaken. As an emblem of that, I will put a specific question to my noble friend. Given that these letters gave reassurance, and were meant to give reassurance, to individuals that at the time of their issue they were not wanted for questioning by the PSNI or other forces, and given that we are told that the PSNI and others have not closed the cases, will the PSNI be formally withdrawing letters, or otherwise formally notifying individuals concerned if and when intelligence, information or evidence comes to hand that changes their status back to being wanted for questioning? I ask because if there is not a proper, formal scheme of withdrawal instigated, arrests and subsequent court cases could well be endangered again, as in the Downey case. I ask my noble friend for assurance on that, not because it is the only question but because it is symbolic of some of the failings of the past.

Baroness Randerson: My noble friend asked about the royal prerogative of mercy and the failure to keep lists. In fact the royal prerogative of mercy is not used only in relation to terrorism cases. It is used very much more widely and it was used much more frequently in the past. Legislation has changed and enables the justice system now to deal with issues such as early release from prison in a different manner. It has simply not been the custom to keep lists of this nature, and I would say that in regard to the Northern Ireland Office investigations, it is not the case that the problem related entirely to the time of the peace settlement and the time of devolution. It predates and goes well back into the last century.

My noble friend referred to poor administration and organisation. The report by Lady Justice Hallett is very clear about the areas of poor administration. The key point she makes is that it was a system that evolved and was not created. The Government acknowledge that as time went on and the scheme developed and grew, failure to take the opportunity to review, update or risk assess the scheme added to the problems of the scheme.

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My noble friend asked whether the Government were thinking of withdrawing the letters because of the dangers of impairing prosecution. Lady Justice Hallett recommended that the Northern Ireland Office should seek legal advice in conjunction with the police and prosecuting authorities on what to do in cases where errors may have been made. That process is already under way. The Police Service of Northern Ireland is reviewing all the cases. Lady Justice Hallett makes clear that that review will be thorough and will take years rather than months. However, she made clear that the judgment in the Downey case stood on its own facts; it was a judgment in the first instance which should not be applied to any other examples, and was not binding in any other cases.

I think my noble friend did us all a great service in drawing our attention again to the victims in this, for whose families today will not be easy. It is important to remember the names of those who died: Lieutenant Anthony Daly, Trooper Simon Tipper, Lance Corporal Jeffrey Vernon Young and Squadron Quartermaster Corporal Major Roy Bright. It is important that, as we have these discussions here today, we hold them in our minds and thoughts.

Lord Rogan (UUP): My Lords, I also welcome the Statement. As we read the Hallett review, I agree with the noble Baroness that we should never forget the innocent victims.

Unlike the noble Lord, Lord Alderdice, I will be critical. This has been a sorry debacle, which has given no credit to the Blair Government—or, indeed, the current Secretary of State for Northern Ireland. For many months now, it has undermined confidence in the rule of law. The people of Northern Ireland have seen that members of a specific terrorist organisation appear to have been given, at the very least, a letter of comfort that indicates that all is forgotten and they can come home to the United Kingdom in the knowledge that they will be free from prosecution and can live a life of comfort—unlike their victims. That clearly was the implication and interpretation given to the leadership of Sinn Fein/IRA, who requested these letters in the first instance.

Much has been said about transparency, or the lack of it, regarding this matter. I will ask the Minister a specific question. Can she inform the House why and when the Government of the Irish Republic were made aware of this scheme, and why the Northern Ireland Executive and parties in Westminster were not so informed?

Baroness Randerson: The noble Lord referred to the nature of the scheme, and for the absolute clarity of the House here today, I will repeat that this was not an amnesty and it was not intended to be an amnesty. Lady Justice Hallett is quite clear on that. The Downey judgment was the result of an error in an individual case that should not have occurred, not as a result of the general design of the scheme.

The noble Lord asked a specific question about the Irish Government. The Irish Government had been involved in discussions with the UK Government over the period of the peace process. They had been closely

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involved in discussions and, for that reason, they were aware of the scheme. I repeat that, of course, the devolved Executive of Northern Ireland should also have been consulted and informed, and should have known about it in an official format.

Lord Lexden (Con): My Lords, I will make four points. First, does my noble friend agree that this was a wholly dishonourable scheme because it conferred benefits and assurances on one small group of which everybody else was kept in ignorance? Secondly, since it was a dishonourable scheme, why did this Government allow it to remain in being from 2010 until 2012? Thirdly, my noble friend may recall that in a Question in April I asked for assurances that the police force in Northern Ireland would be given not just resources but also every encouragement to pursue the cases against terrorist suspects, to secure the evidence and bring them to book. What progress has been made?

Fourthly, I will touch upon the Sewel convention, of which my noble friend made a great deal in the Answer to a Question by the noble Lord, Lord Empey, yesterday. The Sewel convention provides that the Government at Westminster will not normally take action in areas that are devolved to the Northern Ireland Executive. Since 2010, security and justice have been so devolved. Why were the Executive kept in complete ignorance?

Baroness Randerson: My noble friend refers to this as a “dishonourable scheme”. It is clear from the coverage given to it in the extensive report of Lady Justice Hallett—which is very detailed and thorough; one must be grateful to her for her efforts—that the scheme could have in principle applied to those who were not necessarily republicans. Indeed, I believe one name was supplied from the unionist community.

It is, however, an issue of logic that members of the unionist community do not tend to go on the run to the Republic of Ireland. They would be much more likely to have stayed in the UK. Over the years, some members of the unionist community were, I believe, the subject of the royal prerogative of mercy.

Why did the current Government continue the scheme? By the time of this Government, it was dealing with smaller numbers of people: 45 cases have been considered since May 2010 and 12 letters were sent by the Northern Ireland Office since May 2010, stating that on the basis of current evidence the person concerned was not wanted by police. Two further “not wanted” indications were sent by the PSNI without involving the Northern Ireland Office. However, the current Government have issued no letters since December 2012. It is important to repeat again that the Government regard the scheme as finished.

My noble friend raised the Sewel convention. Of course, as a result of that convention and the fact that devolution had occurred, the Northern Ireland Executive should have been fully involved. I have said this, and the Secretary of State has made it clear in her Statement and apologised for the fact that they were not formally briefed.

Lord Cormack (Con): My Lords, as one who was chairman of the Northern Ireland Affairs Committee in another place for the whole of the previous Parliament,

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it is clear to me that this matter was not as well handled as it should have been. However, one understands that there was a passionate desire not to see the peace process unravel. I understand that fully. We have to recognise that we have a power-sharing Executive in Northern Ireland and a Deputy First Minister who very recently had an audience with Her Majesty the Queen, and I am very glad that it happened. I would much rather have that happen than have a return to the Troubles. However, we have to maintain the rule of law and reach a tidy conclusion. I wonder if we might not consider all those who are guilty of terrorist offences and are prepared to admit their guilt eligible for the royal prerogative of mercy, and those who are guilty and not prepared to admit it would be liable to prosecution. The sooner we can ensure that the PSNI devotes all its resources to combating current crime, rather than investigating past crime, the better.

Baroness Randerson: My noble friend is absolutely right to emphasise the passionate desire at that time to make sure that the peace process did not unravel. We must never take progress for granted. It would be quite possible for there to be major problems even now.

My noble friend makes some interesting points on how problems that this administrative scheme was designed to deal with might be dealt with under a scheme that involved pardons. There have been numerous ideas and attempts at cracking this problem. None of them has been fully satisfactory but many great minds are at work on this issue and I very much hope that people will continue to keep this at the forefront of their mind. It is a problem that has to be solved in one way or another, but it is not something that this report in itself will solve.

Lord Morrow (DUP): The noble Baroness has stated that the Government accept this report in its totality. She has quoted from the last paragraph of that report, and I, too, will quote from it. It says:

“One catastrophic mistake has been made and it cannot be undone. The families of those killed in the Hyde Park bombing have no choice but to come to terms with that fact, as devastating as I know it has been for them”.

Does the Minister accept, if there is to be a restoration of confidence in the community in Northern Ireland, that it is imperative that whatever happens from this day forth has to be done in an open and transparent manner?

The Hallett report also makes a number of recommendations. Can the Minister assure us that all those will be implemented? Can she give us a timescale? Can she also assure us that, in the event of further or new legislation being required, there will be no hesitation in bringing that forward as early as possible?

Baroness Randerson: The noble Lord points out some significant words at the end of this report that make very difficult reading for the families of the victims of that bombing. He asked about the timescale for implementing the recommendations. I have already said that the Government accept all the recommendations and indicated that in some cases work is already under way in dealing with the issues. However, it is important that we do not set a timescale. The work of the PSNI,

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which faces significant recommendations of its own, has already begun in reviewing all cases. However, it would be totally inappropriate to put an artificial timescale on that because the emphasis of that work must be on thoroughness rather than speed in order to ensure that the work is done properly and will stand up in court if tested. That certainly does not suggest that the Government are putting any of this off; the work is currently under way.

Data Retention and Investigatory Powers Bill

Report and Remaining Stages

2.55 pm

Report agreed without debate.


Moved by Lord Taylor of Holbeach

That the Bill be read a third time.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, I thank the officials who have supported me during the course of this Bill on behalf of all Members of the House. It has been a testing time for them but they have done it in an exemplary fashion.

Baroness Smith of Basildon (Lab): My Lords, it has been a difficult process on this Bill and I thank the Minister for his customary courtesy in ensuring that we have had access to information and in being prepared to meet with Members across the House. I thank his officials, who have made themselves available to us beyond the call of duty. I also thank the officials of your Lordships’ House, who have had to work in double-quick time on the amendments that have been tabled and have all done so with courtesy and great kindness to Members.

Bill passed.

Justice and Home Affairs: United Kingdom Opt-Outs

Motion to Agree

2.56 pm

Moved by Lord Taylor of Holbeach

That this House has considered the United Kingdom’s Justice and Home Affairs Opt-Outs.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con):I hope that noble Lords will excuse me while I change horses. I am here to update the House about negotiations on the so-called 2014 decision. Before I do so, I begin, once again, by expressing my gratitude for the work of this House in scrutinising these important matters. This

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Government are extremely grateful that this House—the EU Committee in particular—has undertaken to look at this issue in such detail. We consider it important that Parliament is given every opportunity to consider this matter fully.

Last July, the Government explained that we had decided to exercise the opt-out, and we have now done so. However, we were also clear that we had listened carefully to the views of our law enforcement agencies and prosecutors. We concluded that a number of measures subject to the opt-out add value in the fight against crime and the pursuit of justice and that it would therefore be in our national interest to seek to rejoin them. This House considered the matter in full and endorsed the Government’s decision to seek to rejoin the measures set out in Command Paper 8671.

Before opening formal negotiations with the European Commission, the Council and other member states, the Government listened carefully to the views of noble Lords and considered thoroughly the excellent reports of the EU Committee of the House. Those reports reached well considered conclusions that the Government took into account during negotiations. Good progress has been made in these negotiations and I am pleased to be able to report that we have reached an “in principle” deal with the Commission on the non-Schengen measures that fall under its purview. We have also made good progress on the Schengen measures, with the outline of a possible deal now clear. This matter was discussed at the General Affairs Council on 24 June, but some technical reservations still remain. Discussions continue with the aim of allowing those reservations to be lifted. Negotiations are still ongoing but the Government have been clear throughout this process that we would update Parliament as appropriate and I am honouring that commitment today.

I am acutely aware that the EU Committee of this House has said that Parliament was not involved early enough in the process. While I would not entirely agree with that sentiment, it is something I hope noble Lords will understand the Government are seeking to address by holding a debate on the issue today.

On 3 July the Government published Command Paper 8897, which includes the full list of measures that were discussed at the General Affairs Council, and impact assessments on each of those measures. That fulfils the Government’s commitment to provide those impact assessments and further demonstrates our commitment to parliamentary scrutiny of that matter. However, noble Lords might find it helpful if I set out exactly what changes have been made to the list of 35 measures between the opening of negotiations and now.

Two measures originally on the list of 35 that the Government wished to rejoin—one relating to CEPOL, the European Police College, and the other to freezing orders—have been “Lisbonised” by the new CEPOL measure and the European investigation order respectively. As a result, those measures are no longer subject to the opt-out and fall off the UK’s list.

The UK will also no longer seek to rejoin the European Genocide Network, but will instead rejoin the European Judicial Network. That follows submission

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of further evidence from the Lord Advocate in Scotland, Frank Mulholland, the Crown Prosecution Service and other member states on the operational benefits of the measure and practical examples of its use in tackling crime. I also know that the EU Committee felt strongly that we should rejoin this measure, and I hope that it is pleased with this outcome.

The UK will not rejoin the Schengen handbook, as other member states consider that measure to have been superseded by other measures. However, we will rejoin the SIS II networks measure—a technical measure others consider linked to our participation in SIS II. As recommended by the EU Committee of this House, the Government will also rejoin three Europol implementing measures.

Finally, the UK will no longer seek to rejoin the special intervention units measure. The Commission considers that measure to be linked to the Prüm decisions, which the UK will not seek to rejoin. We have neither the time nor the money to implement Prüm by 1 December, so it would be senseless for the United Kingdom to rejoin it now and risk being infracted. Despite considerable pressure from the Commission and other member states, that remains the case.

We all want to see the most serious crimes—such as rapes and murders—solved and their perpetrators brought to justice. In some cases, that will mean the police comparing DNA or fingerprint data with other European forces. When 30% of those arrested in London are now foreign nationals, it is clear that that is an operational necessity. Therefore those comparisons happen already, and must if we are to solve cross-border crimes.

The Government would be negligent in their duty to protect the British public if that issue were not considered carefully. We cannot rejoin Prüm on 1 December and will not seek to do so. However, in order that Parliament can also consider that matter carefully, the Government will produce a business and implementation case and run a small-scale pilot, with all necessary safeguards in place. We will publish that by way of a Command Paper and bring the issue back to Parliament so that it can be debated in an informed way. We are working towards doing that by the end of next year.

The Government will also not seek to rejoin the probation framework decision. As the Government have made clear, the measure has not yet been used, and there are serious questions about how it might work. Of course, we have no principled objection to sending prisoners back to serve their probation or community sentence in their home country, and we have taken into account the potential of this measure as indicated by the EU Committee. We have therefore indicated to the Commission that we will take another look at the measure when there is enough evidence of it working and of its impacts to see whether there would be benefits to the UK from taking part. To support that decision, we will publish for Parliament an assessment of the potential impacts in due course.

I know that many were sceptical that a deal could be done. However, I am proud to say that we have very nearly done it, and the Government are clear that this is a good deal for the United Kingdom.

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3.05 pm

Lord Boswell of Aynho (Non-Afl): My Lords, I am pleased to speak today in my capacity as the chairman of the European Union Select Committee of your Lordships’ House, and to follow the Minister, who has brought some good news to us and who, characteristically, has done his best to explain this extremely complex topic.

I am preceding my colleagues, who will speak on behalf of their sub-committees today, and other noble Lords who I am always very pleased to see participating in these European debates. They will be able to go more into the detail of these complex opt-out decisions, because, frankly, they and their sub-committees have conducted the scrutiny leg work. That has resulted in two excellent reports, published—as is the convention, in the name of the Select Committee itself—some time ago, in April and October of last year. The House has debated them and the issue of the opt-out on numerous occasions before. I think therefore that the House will appreciate it if I keep my own remarks brief.

In broad terms, we are pleased that most of the recommendations of our reports have been followed—I know that others will make their contributions where there are specific points of difficulty or disagreement. I acknowledge readily that Ministers in this House have been helpful in the handling of the decision process. Nevertheless, I must record with some sadness rather than anger that the process has been made more difficult than might have been needed. Our committee has relied on the timely provision of information with which to consider the decisions being taken under the very complex Protocol 36. Occasionally—or perhaps one should say sporadically—we have met with a recalcitrant approach to this on the part of departments. However, in a sense that is in the past, and on the whole, as the Minister indicated, on the substance we are on the same page and in broad agreement with what the Government propose.

Within and beyond that, I will raise two specific points. First, a highly illogical and rather disturbing approach seems to have been taken by government in relation to the impact assessments laid before Parliament recently. I can assure the Minister that this is not just a long-running saga, because it is of immediate and contemporary interest also. That document as published ran into the hundreds of pages, but it was unindexed, lacked a contents page, and contained only the impact assessments for the 35 measures opted into, presented in what appeared to be a somewhat shaky batting order. It certainly was not an easy or user-friendly document to read.

Alongside the presentation of the impact assessments, it could appear that the evidence had been selected to support the decision, rather than the decision in each case being based on the evidence. No impact assessments were made—or as far as we are aware even conducted—on the 100-odd measures not being opted into under Protocol 36. I point out for new readers that it will be clear from the Minister’s remarks today that this is a shifting number—they jump in and out of that particular figure for adoption or not.

We have had the benefit of an assessment of the impact of the 35 measures that the Government now propose to opt in to, but it is not a particularly

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illuminating story in relation to the overall picture. I therefore ask the Minister: are assessments being conducted on the impact of not opting in to certain measures? Will the Government be sharing their rationale for not opting in to each of these measures? Was their decision in each case based on the evidence of the impact assessment?

I appreciate that some measures have been, in the terrible jargon, “Lisbonised”—that is to say, wrapped up under the treaty of Lisbon—and it would be redundant to opt back in to them, so there is no need for us to do so. For all the others, we are genuinely not clear about what assessment has been made of the impact of not opting in to them, and I request that this should be considered and completed. At the very least, I would have expected the Government to provide impact statements for the quite small minority of recommendations that we put forward in our reports and that they have decided not to opt back in to—in other words, as far as this House is concerned, the particular measures under current contention.

My second point is perhaps a less technical one, but it is no less important. It concerns transitional arrangements and measures. The Minister did say something about those, and I think we can take some relief from the fact that we appear to be moving towards an agreement with the Commission on the readoption, or reinsertion, of these measures. I still have a simple request for him: can he please give the House his assurance that, when the opt-out comes into force on 1 December—in the absence of measures being readopted—where measures have not yet been accepted by that date, transitional measures will be in place, that those transitional measures will have been well considered, and that they will cause the minimum disruption, or in certain cases even potential danger, to the public from their not having been adopted as substantive measures because of the process that we are engaged in?

3.12 pm

Lord Stoneham of Droxford (LD):My Lords, I am pleased to be speaking in this debate primarily on behalf of the noble Baroness, Lady Corston, who chairs the European Justice, Institutions and Consumer Protection Sub-Committee, of which I am a member. She very much wanted to speak today, but because of the short notice of the debate, unfortunately that did not prove possible.

Before I speak on behalf of the committee, however, I would like to make several personal remarks. This House has debated the 2014 block opt-out on numerous occasions—most recently in May—and I do not intend to return to the wider questions raised by this issue, except to say that although it has been a rather convoluted process to get where we are, and there have been several slip-ups on the way, in terms of providing information, we have largely arrived at a reasonably acceptable situation.

After reading the debate in the other place on this subject the other week, I think I should perhaps even congratulate the Secretary of State for Justice and the Home Secretary on dealing with the political problems on their own Benches in the Commons. In

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fact, I hate to think what would have happened if the disciplines and the support of the coalition had not been in place.

Protecting our involvement in the European arrest warrant is all-important. Clearly some reforms were required to improve its working, but it is fundamental to our criminal justice system, and a classic example of where concessions on our own national sovereignty have to be used to pursue our wider national interest and get control of situations where we would otherwise be powerless. It is also clear from our discussions that those who hope that a replacement of the European arrest warrant by a bilateral treaty would be a way of getting around the jurisdiction of the European Court of Justice will be disappointed. As we know, Denmark has been required to submit to the jurisdiction of that court as a condition of the agreement and the treaty with the European Union.

Our own committee’s opinions on these matters have been clearly expressed in the two reports that we undertook with our colleagues on the Home Affairs, Health and Education Sub-Committee, which is now chaired by the noble Baroness, Lady Prashar. There are, however, three questions relevant to the Motion before the House today that I wish to put to the Government.

The first concerns a clear difference of opinion. Both the reports undertaken by the two sub-committees on the Protocol 36 decision recommended that the Government opt in to the framework decision on probation decisions and alternative sanctions; the measure is often referred to as the European probation order. The UK has not implemented it. The European probation order provides a basis for the mutual recognition and supervision of suspended sentences, licence conditions and alternative sanctions such as community sentences, where an individual has been sentenced in one member state, but is ordinarily and lawfully resident in another—or where someone wishes to go to another member state and that member state is willing to supervise the sentence.

The two sub-committees had no doubt that this measure had the potential to provide benefits for the management of offenders on a cross-border basis, and that the Government had nothing to gain by not implementing its provisions. During our inquiries, the Government told us that they had concerns about the proper implementation of this matter, and we therefore suggested that these should be resolved at a European level, in the interests of all participating member states. In their formal response to the second of our reports, the Government said that they had looked at this measure “carefully” and that, although they supported the principle behind it, they did not consider,

“that its benefits outweigh its risks”.

In the Government's view, the main risk lay in the fact that the proposal would allow,

“different practices amongst Member States ... in the event of a breach of a Community Order”.

Some states would approach such a breach domestically, while others would return the individual to the issuing state.

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I note that the European probation order is not among those measures that the Government will be seeking to rejoin. Can the Minister therefore tell the House what steps were taken, in discounting this measure, to resolve the Government's concerns with other member states on the operation of the proposal? What is the timetable now for the Secretary of State, in the other place, to say that the Government will look at this matter again in due course? What will be the timing of the assessment that they plan to make?

This question leads me to the second issue I wish to raise today—the quality of Command Paper 8897, which the noble Lord, Lord Boswell, has already referred to. Leaving aside the generally poor standard of the document, which has already been addressed, but drawing again on the example of the European probation order, I am minded to ask the Minister how he believes that members of the relevant European sub-committees tasked with advising the House on European matters are supposed to assess the individual merits of opting in to such a measure—or not, as the case may be—when we have not been furnished with the impact assessment detailing the ramifications of the probation order.

Finally, the third matter that I will address takes me back to the European arrest warrant. Members will be aware that this is one of the 35 measures that the Government have chosen to opt back in to. In March, Royal Assent was given to the Anti-social Behaviour, Crime and Policing Act 2014. This wide-ranging Act included provisions that amended the Extradition Act 2003, which in turn gives effect in the UK to the framework decision introducing the European arrest warrant. The 2014 Act introduced a proportionality test into the operation of the European arrest warrant in the UK. Can the Minister confirm that the provisions of the 2014 Act dealing with the European arrest warrant are compatible with the framework decision, and that the 2014 Act will not, once the UK opts back in to the European arrest warrant, give rise to infringement proceedings by the Commission?

3.19 pm

Baroness Prashar (CB): My Lords, I, too, will concentrate on process, which I am sure will be dealt with by the former chair of my sub-committee, the noble Lord, Lord Hannay. The noble Lord, Lord Boswell, also commented on that.

The two sub-committees of the EU Select Committee recommended that the Government should provide Parliament with regular reports on the progress of the negotiations and show flexibility regarding any issues of coherence raised by the Commission. It is therefore welcome that the Government have been flexible. It is also welcome that we have this debate to consider opt-ins and opt-outs. I am very grateful to the Minister for updating us on this.

As we heard, on 3 July, the Government laid before Parliament Command Paper 8897. However, that document is very inaccessible. For example, the impact statements are unnumbered and unindexed. It is disappointing that such an inaccessible paper was laid on such a complex issue. It does not make the sub-committees’ consideration of these issues any easier.

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Furthermore, in a debate on 8 May in this House, the noble Lord, Lord Hannay, who was then the chairman of Sub-Committee F, argued that there should be impact assessments of measures the Government did not intend to opt back in to as this, too, would have an impact on the UK. As he said:

“That impact could be neutral, positive or negative, but it is an impact”.—[Official Report, 8/5/14; col. 1622.]

It is disappointing that we do not have those impact assessments.

As we heard from the Minister, the negotiations on the overall package have not been concluded but agreement has been reached in principle. When the package was discussed at the General Affairs Council on 24 June, some member states expressed technical reservations, as we heard. It is important to know whether these technical reservations will result in any changes to the list, or in changes to the classification of measures as Schengen or non-Schengen.

Furthermore, there is no reference to the data protection framework decision, which has been reclassified by the Commission as a non-Schengen measure. Do the Government agree with this? I am grateful to the Minister for explaining about the measures that have been “Lisbonised” and what is in and what is out. Nevertheless, it is misleading to refer to them as the 35 measures. As we need to focus on the measures that the Government will be opting back in to, it is important to know whether the Government’s list is the same as that of the Commission. It would be helpful to have an explanation of the reasons for the changes, and whether these were demanded by the Commission or by other member states. How were these changes agreed and on what basis?

The two sub-committees concluded in their report last year that the Government should seek to rejoin the 35 measures already identified but should also seek to rejoin an additional set of measures such as: implementing measures related to Europol’s continued operation; the framework decision on combating certain forms and expressions of racism and xenophobia by means of criminal law; the European Judicial Network; the European probation order and the Convention on Driving Disqualifications. I am pleased that the Government have decided to opt in to the European Judicial Network and the measures relating to Europol. All this is welcome. However, like the previous speaker, I would like to know what the timetable is with regard to the European probation order. I was pleased to hear that the Minister sees the potential of that measure but it would be useful to be told what the plan is for the future.

I very much hope that the Government will continue to pay heed to the sub-committees’ recommendation that the Government provide good quality, accessible and timely information to inform future consideration of these matters.

3.23 pm

Lord Bowness (Con): My Lords, as we continue to debate this important matter it becomes for me more and more like one of those television series billed as new but which are in fact repeats of previous programmes with minor updates, which certainly bring us no closer to a finale.

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My noble friend the Minister set out the present position for the benefit of the House. I am sure that we are all grateful to him for that. I will not repeat the arguments made by my noble friend Lord Stoneham of Droxford and the noble Baroness, Lady Prashar, who, as the respective chairmen of the relevant EU sub-committees, gave your Lordships a clear exposition of the current situation. Having been involved with the first report, it is enough for me to say that I share their concerns without exception. I also share the concerns of the noble Lord, Lord Boswell, about the failure to provide an impact assessment in respect of those measures that the Government do not wish to join.

Concerns about the timetable are as relevant today as they were when they were expressed in the first report of your Lordships’ committee in 2013. I have always believed that ensuring continuity in the application of those measures is of vital importance and that exercising the block opt-out was unwise given that there has never been any suggestion that the measures into which we do not want to opt back have any serious or detrimental effects on the United Kingdom. To have done so was of benefit only to those who wished to strike a pose and say, as they have said, that they had brought some power back from Brussels. It is wholly illusory, and our political effort and capital might have been better spent on some of the more important issues which face the European Union and its member states.

In May of this year, when the matter was last discussed, I said that I had a feeling of apprehension, if not depression. It may be something to do with the state of my health but that feeling continues. Why is that? It is because we have still not concluded our discussions in Brussels which would enable us to put a final package before Parliament. ln the other place, there are demands for separate consideration to be given to the European arrest warrant. We have moved from the position adopted in our debate in May, when my noble friend Lord Taylor of Holbeach expressed the hope that the second and final vote could be taken prior to this impending Summer Recess. However, in fairness, he qualified his hope—no doubt, in the light of experience—by adding that it would in any event take place,

“well ahead of 1 December”.—[

Official Report

, 8/5/14; col. 1621.]

Last Thursday in another place, my right honourable friend the Justice Secretary said at col. 548 of Commons Hansard that,

“we still have to complete some areas of discussion in the Council, so I cannot say that we have finally resolved all the issues in Brussels”.

He added, at col. 549:

“We still have work to do in … Brussels and in both Houses of Parliament”.—[Official Report, Commons, 10/7/14; col. 549.]

Will my noble friend tell us what these issues are, what the work is, and how long it is proposed that it should take?

By my calculations, which may not be wholly reliable, there are some 136 days until 30 November, out of which we take some 70 days of parliamentary recess, leaving us 66 days to bring this to a conclusion in

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Brussels, have a proper debate in both Houses and a vote. We are taking ourselves to the brink over some very important matters.

In conclusion, we cannot undo the opt-out and the Government will have to live with any consequences which may flow from it but I hope that we can at least learn from this experience—namely, that negotiations in Europe take time and you cannot take other institutions and states for granted as they, too, have positions and concerns. In the light of this, I trust that if my noble friends are tempted to bring the European Union (Referendum) Bill back to this House, they will bear in mind the extreme danger of trying to put detailed negotiations, the details of which we do not know, in a straitjacket by imposing a referendum date of 2017. That exercise will make this opt-out performance, which has taken nearly two years since the Prime Minister first announced it somewhere in Brazil and is not yet completed, look like an afternoon tea party.

3.29 pm

Lord Sharkey (LD): My Lords, I have the privilege of being a member of your Lordships’ EU sub-committee dealing with home affairs, health and education. The issue of the opt-out and opt-ins has been of concern to the committee and to the House for some time. I have lost count of the exact number of meetings, evidence sessions, witnesses, reports and debates that have addressed the issue of Protocol 36, but I do know that on 23 July last year this House debated and approved the Government’s then list of 35 JHA measures they proposed to rejoin. In our debate on the opt-out and opt-ins on 23 January this year, I repeated that I still thought that the Government’s selection of those 35 measures was both well chosen and coherent. I also repeated, as I do again now, that I thought that the whole exercise was completely unnecessary. In that debate, along with other noble Lords, I urged the Government to add a further four measures to the list of 35.

As has already been said by the noble Baroness, Lady Prashar, these were the framework decision on combating certain forms of expression of racism and xenophobia by means of criminal law, and rejoining the European Judicial Network, the European probation order and the international convention on driving disqualification. I also noted that there were other technical measures that the Government would probably have to rejoin in order to properly implement Europol council decisions.

While the set of rejoin measures before us today, as we have heard, is not the same set as we debated in January, there are still 35 measures on the list. However, this is a coincidence and it is mildly confusing. This is because, essentially, five measures from the original list have been dropped and five new measures have been added. At least, I think that that is the case. The documentation on all this is very far from straightforward. The Home Secretary herself, in the Commons debate last week, was momentarily uncertain about the status of certain measures.

Command Paper 8897 is not a lot of help. Other noble Lords have remarked on its lack of a table of

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contents, the lack of an index to the impact assessments, and to their apparently random ordering. Of the five new additions to the list, three appear to be technical measures necessary for continued participation in the Europol decision, which is what we expected. One new measure is also technical or quasi-technical, and this is to do with the requirements for the Schengen Information System II, and is wholly unobjectionable. In fact, it is welcome. The final new addition is the rejoining of the European Judicial Network. Your Lordships have argued strongly for this in the past, and I am very pleased to see it reappear.

Five rejoins were proposed in January which have now been dropped. They included two that have been “Lisbonised”, or in other words amended, repealed or replaced by post-Lisbon measures. One further missing measure is the setting up of a network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes. However, as the Minister has said, this has been replaced by the inclusion of the measure to join the European Judicial Network.

One final missing measure is the improvement of co-operation between special intervention units of member states in crisis situations. The Government wanted to rejoin this measure, but would not do so if this involved participating in the Prüm decisions, as the Commission asserted that it did. As the noble Lord, Lord Taylor of Holbeach, has already said, the Home Secretary made it clear in the House of Commons that we have neither the time nor the money to implement Prüm by 1 December. She said that it would be senseless for us to rejoin it now and risk being infracted. I agree with the last part of this, and I am glad that the Government have agreed to run a small-scale pilot to test the implications of running a fully Prüm-compliant system.

However, all this does raise a question. We wanted to rejoin the special intervention measures because we thought it was in the national interest, but now we are not going to. Can the Minister explain what we lose as a result? What is the damage or loss to our national interest as a result of not joining the measure which they set out to join? In this exchange of five measures in and five measures out, the Government have not included three out of the four additional measures recommended by our committees. They have not included the racism and xenophobia measure, nor the absolutely uncontroversial and very sensible international convention on driving license disqualification. Very disappointingly, they have also not included the European probation order.

In the debate in the Commons, the Justice Secretary repeated his commitment to looking again at the measure when there is enough evidence of it working, to see whether or not there would be benefits to the UK in taking part. He also committed to publishing an assessment of the potential impacts of taking part. This is not what the committee proposed, but at least it will keep the issue alive. The debate in the Commons is also instructive for other reasons. There were 23 speakers in all, 18 of whom were Conservatives. The debate reads very like the recording of a rather bitter family disagreement.

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All this confirms my view that the whole enterprise has been a sad waste of time. The Government have provided no evidence that any of the measures they are opting out of is in the least harmful to the United Kingdom, and they have declined to produce impact assessments for any of these measures. That does raise the question of why they are bothering. Some commentators have said that the whole exercise has been designed to satisfy Tory Eurosceptics in the House of Commons, but if you read last week’s debate that certainly does not seem to have worked out very well.

It is not only the absence of any evidence of harm in the opt-outs that is disappointing. There is a new absence that is even stranger. In evidence to our committee, the Justice Secretary relied heavily on the possibility of unexpected judgments from the ECJ as a reason for opting out of the list of measures. I have carefully read the impact assessments in the Command Paper, and there is no mention anywhere in any of them of the possibility of adverse or unexpected rulings by the ECJ. Can the Minister explain why this rationale for opting out does not appear in the impact assessments? Do the Government now believe that the possibility of unexpected ECJ rulings is not a reason for opting out of the measures?

Finally, there has been sharp criticism today of the process the Government have adopted in dealing with Parliament on this whole matter of Protocol 36. I do not propose to repeat all that criticism—although I have already noted the unsatisfactory nature of the latest Command Paper—but I will say that I am glad to see the current list. I am glad to hear the Justice Secretary repeat his promise to the House of Commons of a vote on a finalised list. When the Minister replies, would he reassure us that that this commitment also extends to this House?

3.37 pm

Lord Hannay of Chiswick (CB): My Lords, the Minister has introduced our debate today with his customary clarity and courtesy. If I have some critical things to say about the Government’s handling of Protocol 36 of the Lisbon treaty, of the block opt-out and of the reinsertion negotiation—which looks as if it may now be close to closure—that in no sense detracts from my respect for the way that he has managed the debates in this House. I rather suspect that he, like me, would have felt some relief if this had indeed marked the final parliamentary stage in this saga, but that is not to be. I understand from what the Home Secretary said in the other place that there will be a full debate and vote there at the conclusion of these proceedings. Like the noble Lord, Lord Sharkey, I would be grateful if the Minister would confirm that the same will be true in this place.

I will not weary the House with a detailed reprise of the previous stages of our debates. Suffice it to say that your Lordships’ EU Select Committee remained unconvinced by the Government’s case for triggering a block opt-out in the first place. We also found serious fault with the Government’s failure to live up to their original commitments on consultation before they took any decisions, and we believe that the list of reinsertion items should have been a bit longer. All that is now water under the bridge. Last July, this

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House—unlike the other place—endorsed the list of 35 reinsertion measures in Command Paper 8671. I hope that some lessons will be learnt for the future and that some of the mistakes made will not be repeated.

Command Paper 8897, the White Paper that we are debating today, lists and provides impact assessments for 35 measures that we hope to rejoin on 1 December. As the Minister made clear, those measures are not in all respects the same as the 35 that we debated last July, five having fallen by the wayside for reasons that other noble Lords have mentioned, and five having been added to the list, some of them drawn from the list suggested by your Lordships’ Select Committee in its second report last October. I express gratitude for the fact that these measures in our proposal of last October have been rejoined, or are candidates for rejoining. I note with some amusement, however, that the Home Secretary did not care to attribute much credit to this House for the additions to the list, nor—I was fascinated to see—did the Order Paper in the House of Commons even refer to the two extremely lengthy reports prepared by this House. Among the long list of reports from Select Committees, it referred to all the fairly content-free reports that the Commons’ own committees produced, but did not refer to the reports from your Lordships’ House. I deduce from this that the length of the corridor is quite long.

In any case, the Minister has explained the list, and the additions show some flexibility which is to be warmly welcomed. Your Lordships’ House can, as I say, claim credit for some of that. I only wish that the list of additions could have been a bit longer. I remain completely baffled by the rationale for our refusing to proscribe the crimes of xenophobia and racism. I do not think that that is in the sense of what are known as British values, and I am sad that we have not rejoined that.

On the matter of impact assessments, the ones before the House have been provided in a very short time before our debate, and in an even shorter time before the debate in the other place. I do not think that that was very satisfactory. Having examined the debate in the other place, I did not notice a great appetite for grappling with anything as complex, detailed or factual as the impact assessments; but, nevertheless, they did not have very long to think about them. That really is not the way to handle parliamentary process. Moreover, we have still not been given any impact assessments for the 90 or so measures we are not going to rejoin, despite repeated requests for them to be provided—most recently today by my noble friend Lady Prashar and others who spoke in this debate. Withdrawing from these measures will of course have an impact. I do not imagine that the Minister is going to rise at the end of this debate and tell us that it will not have an impact. If he does, he will of course have to answer the question: why on earth are we withdrawing from them if there is no impact? Let us assume that they do have an impact. In that case, Parliament deserves to be told what that impact is. It has not been. I think that that was a bad way of handling this, and I continue to think so.

I think that it is right to dwell for a moment on one other specific item that is on the list of measures that the Government wish to rejoin, the European supervision

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order, which provides for our citizens and, indeed, the citizens of other member states who are indicted in another member state and extradited under an arrest warrant, to be bailed in their own country until such time as their case is brought to court. This is, of course, the sovereign remedy to the injustice that occurred in the notorious Symeou case, when one of our citizens languished in a Greek jail for many months before being brought to trial. Had we respected the deadline in the European supervision order legislation—which we agreed to ourselves—we would have introduced that legislation in this country in December 2012. But we did not. We did not respect that deadline and so the European supervision order was caught up in the cat’s cradle of Protocol 36, block opt-out, reinsertion, et cetera. Now the earliest it will become available—the possibility for a British citizen to be bailed in this country if they are accused of a crime in another member state—is December 2014. For two years, therefore, British citizens have been deprived of any possible recourse to that relief. That is not an outcome of which we can be unduly proud.

That said, I pay tribute to the tenacity and flexibility with which the Government have handled the last year of complex negotiations in Brussels. Credit needs to be given—and I would give it—to everyone from Ministers down through officials and members of the UK permanent representation, who I know have put in a huge amount of time on this. In fact, as I have said in previous debates, this Government did not devise the infernal machinery of Protocol 36, they were handed it when they took office.

Are there any wider lessons to be learnt from this episode? One is that it is in our national interest to participate actively in the European Union’s justice and home affairs work if we are to combat effectively the rising tide of serious international crime. Noble Lords might not have thought that from listening to last week’s debate in the other place, redolent as it was with references to every statute from Magna Carta onwards being trampled under foot—but that, fortunately, was the conclusion of the Government as well when they decided to rejoin the 35 measures that we are discussing today, and when, on a day-by-day basis and in a pragmatic way, they opt in to new justice and home affairs measures. It is the view that was endorsed by this House last July.

As we approach decisions on these other tricky issues relating to our EU membership, let us not forget that it is seldom a clear black and white issue, and that flexibility and a spirit of compromise can often produce the best result.

3.47 pm

Lord Inglewood (Con): My Lords, I shall make only a short intervention in today’s debate. I chair your Lordships’ post-legislative scrutiny committee on the Extradition Act 2003. We are at a very early stage in our work. We have heard some evidence but we have reached no provisional conclusions at all. However, one thing is absolutely clear to us. The effect of not opting back in to the European arrest warrant is to tear up Part 1 of the Act. There is no time now to put in place any form of alternative arrangements for the

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countries listed in Part 1 of the Act—our European Union colleagues—because the legal status quo ante no longer exists.

We have heard plenty of criticisms about the domestic implementation of the framework decision directive and of the framework decision directive itself. However, there are other ways of dealing with that other than simply not opting back in.

In the real world, the only way open for us to continue to have extradition arrangements with our closest neighbours, with whom we have freedom of movement, is to opt back in. Not to do so in practice will precipitate anarchy. To do that would be very foolhardy, to put it in parliamentary language.

3.49 pm

Lord Foulkes of Cumnock (Lab): My Lords, I am very pleased to follow that brief but very powerful intervention from the noble Lord, Lord Inglewood. I start by very sincerely commending the Minister for his diligence. If I am right, he has been on parade on the Front Bench every day this week. He dealt with the Bill before this, of which he did every stage throughout the whole of yesterday and today, and now he is dealing with this business. He must have done something awful in a previous life to deserve that. I certainly think that he, more than any of us, will have a well-deserved holiday the week after next. I know where he is going; I am sure he will enjoy it. I hope I am not going to be too hard on him today, but like my noble friend Lord Hannay I will be a little hard on the Government.

I agree absolutely and completely with the noble Lord, Lord Sharkey. This has been a totally unnecessary and costly exercise, one that has kept us, the Government and the other place preoccupied for far too long, when, as has been said by a number of Members on both sides, we could and should have been doing many other more important things. This opt-in, opt-out, opt-in, opt-out was described by one member of our European Union Committee as a sort of European hokey-cokey. That is what it has become. The way it has been dealt with has become a bit of a farce, but it is a matter of great seriousness.

As my colleague the shadow Home Affairs Minister in the other place, the right honourable David Hanson, said, what was supposed to be the Government’s great show of repatriation and Euroscepticism—the great opt-out—has in fact become the great opt-in. That is shown by the number of important measures we are opting back in to. Any idea of a great repatriation has been mere window dressing for the purposes of the right-wing, anti-European Union Back-Benchers. From time to time I find it irritating that one person in particular, Sir William Cash—I am a friend of his in a number of ways—should have such a huge influence on the way in which the Government determine their European policy. It is astonishing. It is about time he was stood up to. My noble friend Lord Hannay was saying how much the other place seemed to ignore our report. I hope we will stand up to them in our European Union sub-committee and say that we want to ensure that these matters are considered rather more conscientiously and in a more balanced way than is

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done by the chairman of the European Scrutiny Committee in the other place.

Let us look at what has happened. Some of the measures we are opting back in to are major, important measures, and we are rightly opting back in. The European supervision order allows British subjects to be bailed back to the UK rather than spending months abroad awaiting trial. That is very important. The prisoner transfer framework decision helps us to remove foreign criminals from British jails. We are rightly opting back in to both those important things, as well as the measure providing for joint investigation teams, the European criminal information system and the Naples II convention, which is the principal tool for customs co-operation. Why did we even contemplate opting out of them? Many of the ones we are opting out of, to give this whole exercise some very small degree of credibility, are very insignificant and minor matters. As my right honourable friend David Hanson said, they are,

“not relevant, not appropriate and not needed now”.—[

Official Report

, Commons, 10/7/14; col. 500.]

For example, we are opting out of a directive on international crime that closed down years ago. Measures on cybercrime and mutual legal assistance that we are opting out of have been superseded by other measures to which we have signed up. Measures such as accession never applied to us in the first place. Therefore, it is of no import that we are opting out of such measures. We are opting out of some other measures simply because we have legislation dealing with those issues already. For instance, the Bribery Act 2010 and hate crimes legislation mean that we do not need some of the measures that we are opting out of.

The fact that we are signing up to so many important measures, and that many of the measures we are opting out of we are not doing on the basis of repatriation, shows that the Government’s critique of Europe holding far too much power and far too much jurisdiction over us is overblown. Let us remember that it is a Conservative Home Secretary who is pursuing this strategy, which basically now admits and agrees that a lot of these measures are absolutely necessary. These are not federalist land grabs by the European Union. I hope that this debate will provide an opportunity for a message to go the House of Commons to treat this matter seriously.

Finally, I hope that the Minister will give us a clear indication in his reply as to when this matter will be finalised. The noble Lord, Lord Bowness, who in many ways is my noble friend, spelt out the timetable and the number of days that there are in which we are able to make this decision. We will not be back until the middle of October and this has to be done by the end of November. There is not a lot of time for it to be done. As we know, not just Europe but Whitehall will be on holiday for a good few months. I hope that the Minister will give an indication in his reply as to when we will come to a decision. As a member of the European Union Committee, I am glad to have the opportunity to talk on this matter. I hope that those Members of this House opposite who I know are aware of the importance of our membership of the European Union will stand up and be counted and face up to some of the people at the other end who are not quite as enthusiastic as we are.

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3.56 pm

Viscount Bridgeman (Con): My Lords, perhaps I may echo the remarks made by the noble Lord, Lord Hannay, about the infernal mechanism by which the Government inherited the opt-in opt-out measures perceived by those outside these Houses and in Whitehall as a sort of vacillation. As the noble Lord said, the Government had no option but to take account of these.

My right honourable friend Theresa May put it succinctly in a Statement in another place in July 2013 when she said:

“For reasons of policy, principle and pragmatism, I believe that it is in the national interest to exercise the United Kingdom’s opt-out, and rejoin a much smaller set of measures that help us to co-operate with our European neighbours in the fight against serious and organised crime. I also believe that Her Majesty’s Government must strike the right balance between supporting law enforcement and protecting our traditional liberties”.—[Official Report, Commons, 9/7/13; col. 180.]

From the remarks made by my noble friend the Minister, I am pleased that the Government are taking some cautious steps towards achieving that aim.

In view of the Minister’s remarks, some of what follows may be slightly historic. In the past, objections were raised about a potential loss of control of domestic police and criminal justice authority. Opponents were also concerned that the UK’s common-law tradition would be undermined. It is the view of Sub-Committee F that both these measures are in the national interest and are vital to our national security. We also argue that the measures would provide the benefits of legal clarity, making a stronger and more consistent application of measures throughout the EU.

The experience so far is that there is no risk to the common-law tradition from any police and criminal justice measures or judgments. Withdrawing from either Europol or the EAW would result in the UK having to rely on less effective means of co-operation and a series of bilateral agreements, and a loss of influence over future criminal justice policy. It is the view of the sub-committee that these police and criminal justice measures have an important role to play alongside domestic courts in safeguarding the rights of citizens and upholding the rule of law.

Europol has undergone a most effective period under the direction of Mr Rob Wainwright of the United Kingdom. With the increasing development of global crime, the sharing of data and intelligence is absolutely essential. Should we be outside Europol, any sharing of data would be a matter of concessions and good will, which would be a far from satisfactory means of operating. I am pleased to see the noble Lord, Lord Blair, in his place, as well as seeing the noble Lord, Lord Stevens, earlier in this debate. I read the transcript of Mr Wainwright’s evidence and he was specific that the measures being taken in Europol had the complete support of the national chiefs of police in the United Kingdom. Nevertheless, the possible ceding of domestic police powers is a sensitive issue with the public, and I should welcome the Minister’s assurance that in the opt-in negotiations Europol will not be given the power to direct police forces of the United Kingdom.

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Much has been said in this debate about the European arrest warrant. This has been in operation for some 16 years. Let us be clear that this is not the perfect system for apprehending and repatriating criminals across EU borders. There have certainly been cases of pre-trial detention in poor prison conditions—but these could occur under any alternative systems of extradition. I am convinced that as it now stands the EAW works well. Any other system would inevitably make the extradition more protracted and cumbersome, potentially undermining public safety. The great advantage of the EAW as it has been developed is its speed. Extradition from countries such as Spain, which in pre-EAW days would have taken years, can now be accomplished in a matter of weeks.

I must remind your Lordships that this measure has over the years of its existence been progressively refined. For example, the Anti-social Behaviour, Crime and Policing Act, to which my noble friend Lord Stoneham referred, contains measures to ensure that an arrest warrant can be refused for minor cases. The European investigation order can be used to enforce fines, where police forces and prosecutors can share evidence and information without requiring the extradition of a subject at the investigation stage.

The prisoner transfer framework decision, also referred to by the noble Lord, Lord Foulkes, can be used to enable UK citizens extradited to and convicted in EU member states to be returned to the UK to serve their sentences here. In certain circumstances the EAW issued in other member states can with their permission be withdrawn, and this measure can be used to enable sentences to be served in the UK. The mechanism also makes use of the growing practice of videoconferencing, for instance. The noble Lord, Lord Hannay, referred to the European supervision order. I will take this opportunity to say that the noble Lord gave tremendous leadership to our committee—and in my case a great degree of education. This mantle has been taken on with great distinction by the noble Baroness, Lady Prashar.

In our follow-up report on EU police and criminal justice measures and the UK’s 2014 opt-out decision, we made it clear that there were a number of other measures that the UK should seek to rejoin. These measures have been discussed at length in this debate. The report concluded:

“We are concerned that the Government have given insufficient consideration to the possible substantive and reputational damage of not seeking to rejoin these measures”.

I noted the letter to my noble friend Lord Boswell from my right honourable friends the Home Secretary and the Lord Chancellor. They have addressed some of these concerns. In particular I am pleased that the Government will seek to rejoin the European Judicial Network, which was one of the recommendations in our report. My noble friend’s reply to the letter from my right honourable friends drew attention to a number of documentary points that needed clarification—I say that with some delicacy—and in particular to the remarks in their letter on the deal reached “in principle” and to the,

“technical reservations expressed by some member states”.

Like my noble friend, I await with interest the clarification from my noble friend the Minister.

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I am grateful for the Minister’s assurance that there will be full parliamentary scrutiny of the progress of these negotiations. I am grateful also that we have been assured of this and, with other noble Lords, that this House will be included in these debates.

4.04 pm

Lord Judd (Lab): My Lords, it would be quite wrong to go through this debate this afternoon without expressing a real word of appreciation to the noble Lord, Lord Boswell, for his strategic leadership, and to the chairs of the two relevant sub-committees, the noble Lords, Lord Bowness and Lord Hannay, and currently, of course, to the noble Baroness, Lady Prashar, and the noble Baroness, Lady Corston. We are fortunate to have the calibre of leadership that these five people have provided and do provide on these matters.

I keep thinking back to the evidence that we took in our inquiries in preparation for these debates. What became increasingly powerful was the evidence from all the people working on the front line of this aspect of our national security that it was very important indeed to be engaged in the European institutions. One after another, they kept telling us that the quality of the work would be undermined if we were not engaged. Of course, that is hardly surprising because the reality in which we are living is that large-scale—massive-scale, sometimes—international crime is international; it does not respect national boundaries. Therefore, international co-operation is indispensable.

It is equally clear that other matters of home affairs cannot be solved within national boundaries and that they require international co-operation. Of course, the European Union provides a very practical and real opportunity for that co-operation to take place in its various institutions. I think that it is very sad indeed that in all the debate about whether or not we should remain in Europe, dominated as it is by insularity and, even worse, xenophobia, there has been a failure in leadership to explain to the British people why membership is indispensable to their well-being.

Back in the 1970s, I was the Minister of State in the Foreign Office who had responsibility for Europe. Even in those days, I was beginning to be concerned because the culture was that you went into a meeting in Europe and you had to come out and say to the British media, “I fought for the British people and I withstood these European dangers and I upheld British interests”. Of course, the real challenge for leadership is to understand—and to enable the British people to understand—that we cannot look to our interests as a community within Britain without looking to the well-being of the European Community of which we are a part, because we are inseparable from that community in terms of the challenges and threats that present themselves, and we need to co-operate in order to be able to meet those adequately.

From that standpoint, I think that opting back in to the provisions that are now before us is crucial. I wish we had never been through this exercise because, like others, I feel that it has undermined our whole strength and negotiating position within Europe. In fact, if I may say so, one heartening thing from my standpoint is what happened recently with our former Leader of the House going to Europe, because I think

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he is exactly the sort of constructive, positive person that one needs participating in those institutions. I, for one, wish him well. I think that he has great ability if he brings it to bear in these spheres. But he will be absolutely helpless if he is not supported by a culture in our country among the political leadership which says that the work he is doing is essential because the interests of men, women and children in this country in terms of their security and safety is dependent on this effective co-operation with our European partners. From this standpoint I hope that the negotiations go well.

There is only one other point I would like to make. I thought that the point made by the noble Lord, Lord Boswell, in his introductory remarks was so important. There is a very big danger, because just supposing that we have not concluded the agreement for our opt-back on some of these arrangements, what on earth will happen on 31 December? There is going to be a real threat and danger to the British people because there will be nothing in place. If I may refer back to the lively debate we have just had on another matter earlier today, one of the arguments applied by those who were in favour of what was before the House was that we simply had to have something in place. We could not suddenly pull out of all the current arrangements because that would be irresponsible. Well, if that applies there, believe me, this will apply in the realm of security and the fight against global crime.

I hope desperately that we are successful, but it behoves this House, of all places, to provide the kind of principled, cultured and informed leadership in the debate that says, “Do let’s stop this introspective nonsense. Let us recognise that we are going to build a strong future for the British people by success on these fronts”.

4.10 pm

Lord Kennedy of Southwark (Lab): My Lords, this has been a useful and important debate today on the home affairs and justice opt-outs that the government are exercising. The first duty of any Government is to keep their citizens safe and this debate enables the House to consider these important issues and explore the actions taken by the Government. The opt-out of approximately 130 justice and home affairs measures and the opting back in to certain measures before 1 December must not be damaging to the law enforcement agencies and the important work they are doing.

We on these Benches are not against opt-outs in principle. These opt-outs are only possible because of a provision negotiated by the previous Labour Government when signing the Lisbon treaty in 2007, but your Lordships’ House will want to have further assurances from the noble Lord, Lord Taylor of Holbeach, that the Government have got their thinking right and that our national security and the fight against crime are not compromised.

I also think at the end of this process someone should look at what we have gone through—the administration, the cost—and examine what has been delivered. I am not sure who that should be—possibly the Public Accounts Committee or the Home Affairs Committee in the other place. Certainly there has been a lot of cost for not much delivered.

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The noble Lord, Lord Taylor of Holbeach will be aware of the Members in his own party, in addition to those on these Benches—in fact, Members on all sides in this House—who are concerned that we have a process that delivers very little benefit, for a lot of work and a lot of expense, with not very much to show for it in the end, as my noble friend Lord Foulkes of Cumnock said.

We believe in retaining our co-operation with Europe on policing and criminal justice matters. Can the Minister address why the Government did not secure guarantees of agreed opt-ins on these important crime-fighting measures before exercising this opt-out? That would have been a sensible precautionary measure. I was, however, pleased to hear from the noble Lord that discussions have gone well and we hope that agreement is very close.

We must not forget that there are thousands of organised crime groups in the EU involved in drug trafficking, people trafficking, cybercrime, online child exploitation, kidnap, money laundering in addition to terrorism and threats to our national security. Cross-border crime is a reality and we need 21stcentury tools to meet this challenge.

I have told the House before that I had the privilege of visiting the police unit in London that deals with card fraud. I saw examples of how criminals were using every modern technique to steal people’s money. It is cross-border and it does not stop at Dover. The only way to catch the perpetrators who are stealing money from our citizens, costing the banks millions of pounds and bringing misery to hardworking families is to have cross-border co-operation with other law enforcement agencies across Europe. It has been raised before, but can the Minister give his reaction to the concerns expressed that the new arrangements will not be in force in time and that without sufficient transitional measures there would be a gap in terms of the UK’s capability to carry out its work against international organised crime and terrorism? Can the Minister give the House an absolute assurance that that will not be allowed to happen and that provisions will be in place? I agree with the comments made by the noble Lord, Lord Boswell, when he expressed concerns about the measures that have not been Lisbonised and how the impacts have not been properly assessed, and I agree with his comments about the transitional arrangements.

I am pleased that the Government have decided to opt into the European arrest warrant. The UK has deported more than 4,000 people under this scheme to face justice and more than 600 have been returned to the UK to face justice here. There are numerous examples of criminals being brought to justice thanks to the European arrest warrant. On 24 March this year, Francis Paul Cullen, who committed serious sexual assaults on children over a period of three decades while serving as a priest in Nottinghamshire and Derbyshire was brought to justice. He fled the UK in 1991, but finally, after 22 years on the run, he was extradited from Spain on a European arrest warrant. He pleaded guilty earlier this year in Derby Crown Court and was sentenced to 15 years in prison—justice, finally, for his victims.

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As the noble Viscount, Lord Bridgeman, mentioned, under the provisions in existence before the European arrest warrant—that is, the 1957 European Convention on Extradition—Francis Paul Cullen’s 22 years on the run would have rendered him immune from prosecution by the Spanish authorities, because they have a statute of limitations which means that he could not come back to the UK.

There is also the case of David Heiss, who murdered British student Matthew Pyke in September 2008, was arrested in Germany a month later and brought back to the UK the following month. Before the European arrest warrant, Germany did not surrender its own citizens to any other country and had a constitutional bar on them doing so. Without the European arrest warrant, it is possible that these two criminals would not have faced justice in a British court. My noble friend Lady Smith of Basildon has previously quoted Beatrice Jones, whose mother, Moira Jones, was abducted, raped and murdered by an EU national. Beatrice Jones said:

“He fled the country but because of the dedication … of Strathclyde police along with the cooperation of Slovakian police, he was arrested and extradited back to this country”.

At the other end of the scale, no one wants to see trivial matters clogging up the courts, wasting time and costing money. The principle of proportionality is therefore important. I welcome the plan whereby a judge will consider whether the alleged offence and likely sentence are sufficient to warrant someone’s extradition. Can the Minister give the House an absolute assurance that the European arrest warrant will be in place to be used on 1 December 2014?

There are other measures that I am pleased that the Government have indicated that they are opting back into, including five of the six mutual recognition agreements. It is right that in areas where financial penalties of more than €70 are imposed—for example, road traffic offences—people can be pursued.

It would be helpful to the House if the Minister could give more information on the Government’s thinking in respect of the judgments in absentia framework decision and the European supervision order. These measures contain important protections for defendants, and the second measure provides that non-custodial pre-trial supervision may happen on a voluntary basis in the defendant’s home member state. I agree with the comments of the noble Lord, Lord Hannay of Chiswick, in that regard.

The previous convictions framework decision, which requires courts to take account of a defendant’s previous convictions in any other member state to the same extent as they would previous national convictions, is another important measure in the fight against crime.

It is good that the Government are opting back into the prisoner transfer framework decision, which provides for the transfer of foreign nationals who are EU nationals to serve their sentence in their home country provided that they have more than six months to serve. However, I am not sure that there has been the speed or number of transfers that we would all like to see. The House will be aware that it costs about £40,000 to house a prisoner here in the UK. I remember the

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Prime Minister making much noise before the last general election about the number of foreign criminals in UK jails. Four years later, I have not seen that much followed through. When are we going to see a real reduction in the number of foreign criminals in our jails?

The probation measures framework decision is the one measure that the Government are not opting back into, as your Lordships have heard earlier. Again, it would be helpful if the Minister could go into some more detail as to why the Government have taken that decision and what would have to happen for them to opt in to it—I know that they have indicated that they may do that in the future.

As I said earlier, most of the areas where the Government have decided not to opt back in are of a minor or trivial nature. In other cases, the Government intend to follow the provision and believe we have sufficient powers to deal with the issues that arise. What is the process for keeping this under review? Can the Minister confirm that, if as part of any review the Government decided that opting back in the future would be a good thing, they would actually do that?

We are not against opt-outs in principle, but we have concerns about how this set of opt-outs has been handled. Many other noble Lords have expressed that concern in this debate. Concerns have been expressed about the adequacy of planning for opt-ins and in particular the provision of transitional measures in the event of agreements not being reached in time. As I said earlier, if you examine what actions are being taken by the Prime Minister, you wonder what they amount to. I am firmly of the opinion that this is an expensive and lengthy exercise that does not deliver very much. Is it not the reality that this whole exercise is an attempt to deal with the difficulties that the Prime Minister has with his Back-Benchers in the House of Commons—the noble Lords, Lord Stoneham of Droxford and Lord Sharkey, made reference to that, too—as well as with the wider Conservative Party and UKIP, which of course the whole Tory party is terrified of? It has been found out, however, as there is no real repatriation of power. Instead, the UK is doing the right thing and opting into a variety of measures because it is important to do so.

I also associate myself with many of the comments of the noble Lord, Lord Bowness, about the waste of political capital and how our energies could be much better spent elsewhere in Europe. Like the noble Lord, Lord Sharkey, I have actually looked at a number of European debates in the House of Commons. When I read the contributions of Conservative Members I am reminded of what UKIP meetings look like. Like other noble Lords, I welcome the decision to rejoin the European Judicial Network and the three Europol measures. However, I ask the Minister to explain further why we are not joining the European Genocide Network.

In conclusion, I join other noble Lords in thanking the noble Lord, Lord Taylor, for the way in which he has handled these matters. I like the noble Lord very much and any criticism I have given from the Dispatch Box is not directed at him personally but at the Government. He has much to report back to the House and I look forward to hearing from him.

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4.20 pm

Lord Taylor of Holbeach: My Lords, I thank the noble Lord, Lord Kennedy of Southwark, for the kindnesses he has shown, particularly in his last remarks. He made a number of comments about the current political scene. I have very long memories of this issue in politics, so I do not think that it is necessarily very productive to go down other, party-political routes. In fact, we have a tradition in this House of trying to deal with these matters on their merits. I think that the way we handle these debates is very much to our credit.

I thank all noble Lords who have spoken. A lot of points have been raised, which is hardly surprising, as this is a broad subject—even though it is confined to the JHA opt-out matters, there is a lot of detail. I am going to do my best to reply to points that have been raised, but I hope that noble Lords will be happy if I write one of my usual commentaries on the debate. I find that a very useful way of informing the House. Indeed, in considering this matter, I know that it is nice to have things on the record, but it might be something for those who keep the official records to make a note of letters sent by Ministers, or at least to make them available on the website and not just in the Library, so that noble Lords can be aware of those things for the future. I suggest that as a modernising idea, as it is frequently the case that Ministers need to write in order to provide a proper answer that cannot be given in a debate.

I am grateful to the noble Lord, Lord Boswell, for his chairmanship of the Select Committee and the leadership that he shows on these issues in the House. The noble Lords, Lord Judd and Lord Kennedy of Southwark, both raised the question of transitional arrangements with the Commission and what is going to happen on 1 December. It is not the intention to have a gap between the date on which the opt-in will take effect and the point at which the UK can rejoin the measures. We place a great deal of importance on the issue and believe that it is in everyone’s interest to try to eliminate any operational gap between our opt-out taking effect and our continued participation in the measures that we formally apply to rejoin. If it is necessary to use transitional measures, we consider that transitional arrangements could be used to preserve the legal effects of measures that the Government have said they will rejoin, where there is a short operational gap.

The noble Lords, Lord Bowness and Lord Foulkes, asked when we think that the negotiations will conclude. I think that that is a matter that all noble Lords are aware of—that is, we have made good progress on these negotiations. An in-principle agreement has been reached with the Commission on a package of 35 measures. I say, “a package” because it is not the original package, as was rightly pointed out by the noble Lord, Lord Hannay. However, negotiations with member states are continuing and we are confident of concluding a deal ahead of 1 September so that this operational gap will not occur.

Lord Bowness: My Lords, I thank my noble friend for giving way and I apologise for being troublesome. While he is dealing with this point, perhaps he could

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tell the House—and I understand the difficulty with negotiations—whether in fact discussions are taking place about transitional arrangements in parallel with the main negotiations. Were we to get much closer to 30 November, it would then be rather late to start putting those transitional arrangements together.

Lord Taylor of Holbeach: This is a wise Government and all these matters are considered. That is not our ambition. Our ambition is to achieve agreement by that time. There will be an update. We have updated Parliament up to now and we will continue to give Parliament opportunities for scrutiny of the process in future.

The noble Lord, Lord Foulkes, again raised the question of whether this was part of the Prime Minister’s promise to start repatriating powers from the EU. It is a decision that flows from the existing treaty and its protocols that were set in place by the Lisbon treaty, negotiated by the previous Government. If we had done nothing with regard to the opt-out, the default position was that the UK would become subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice. The decision to opt out means that a much smaller set of measures will be subject to ECJ jurisdiction and Commission enforcement powers. We believe that that is what the British public would expect us to do, given that the negotiations conducted by the previous Government led to Protocol 36.

The noble Baroness, Lady Prashar, whom I congratulate on stepping into the shoes of the noble Lord, Lord Hannay, asked whether there was a list of measures subject to the opt-out. We are currently working on producing a full consolidated list of measures that the Government consider subject to the opt-out, and we will provide that shortly.

My noble friend Lord Bowness asked: if the majority of these measures are defunct, in no way harmful to the UK or positive, why bother exercising the opt-out at all? I hope that I have given him some idea of why we thought it was important to deal with this. The ECJ should not have the final say over matters concerning substantive criminal law or our international relations in matters like extradition. That is why the Government will not rejoin over 20 minimum-standards measures on sensitive matters such as racism and xenophobia, or the EU/US extradition agreement. I am clear that our Parliament should have the final say over our laws on these matters, and the Government should be able to renegotiate bilateral arrangements as we think fit.

A number of noble Lords asked why the Government had produced an impact assessment for only 35 measures, not for the full list. The Government have been consistently clear that we will provide Parliament with impact assessments on those measures that we will seek to rejoin. I remember saying that in previous debates. Command Paper 8897 is the fulfilment of that commitment. The UK will not be bound by the rest of the measures from 1 December, and there is therefore no need for an impact assessment.

There was some consideration of the European arrest warrant. As noble Lords will know, we have decided to opt back into the European arrest warrant. We have listened to our EU partners and the UK law

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enforcement and prosecution agencies, as well as the view of Parliament and indeed our European committees, on this. Critics of the EAW have come to a balanced conclusion on how the EAW can be improved and retain its obvious practical and law enforcement benefits but provide better safeguards for people subject to EAW law. We are satisfied that the reforms made to the EAW will help to address these concerns. My noble friend Lord Stoneham asked whether EAW amendments to domestic law are compliant with EU law. We are confident that they are compliant and are happy to provide more detail by way of the letter I will be sending. We will be able to elaborate and I hope that that will be to the benefit of noble Lords generally.

My noble friend Lord Sharkey said that many of the measures that the Government want to withdraw are more likely to be susceptible to negative ECJ judgments. As I have said throughout this process, the Government are concerned about the risk that the court could make unexpected adverse decisions on the interpretation of pre-Lisbon measures. Given the prospect of an unexpected judgment, and concerns about the drafting of measures and the difficulty of altering EU legislation, we believe that minimising the possibility of an adverse judgment is a sensible and pragmatic approach. It is only correct that the Government consider carefully whether to accept the formal jurisdiction of the ECJ before seeking to rejoin measures. We accept that there is always a risk attached in terms of ECJ jurisdiction if we decide to participate. However, in certain cases it will be in the national interest for the UK to participate and the Government will accept that risk, given the wider benefits of the instrument in question. That is the judgment that rightly rests with the Government in these cases.

My noble friend Lord Sharkey also asked about the special intervention units and whether we wish to rejoin in order to maintain participation in an operational police network at the EU level, called Atlas. We now know that we can continue working through Atlas even if we do not participate in the special interventions unit. This has been confirmed by the Commission, so we will lose nothing by not joining that measure. My noble friend Lord Bridgeman was concerned about whether the UK would rejoin Europol and whether it could force national police forces to act. We confirm that Europol will not be able to force national police forces to act.

A number of noble Lords, including my noble friends Lord Sharkey and Lord Stoneham of Droxford, the noble Baroness, Lady Prashar, and the noble Lord, Lord Kennedy of Southwark, asked what steps were

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taken at EU level to resolve the problems with the probation measure and what is the timetable for our reconsideration of this? This is quite a complex issue but I think that I have time to address it, because noble Lords will be interested. As the Government set out, it is not in the national interest to rejoin the probation measure at this stage. It is unclear how it would work in practice and we have no evidence to demonstrate that the benefits to the UK outweigh its risks.

We did, indeed, discuss these issues with the Commission. However, we were not able to resolve them. One key issue is that only 14 member states have so far implemented it—and to date it has never been used within those 14 member states. Therefore, we have no practical illustrations of how it would work. We were unable to determine the likely impact of rejoining the measure. In due course, once the probation measure has been used and implemented more widely, and there is sufficient evidence to analyse it, we will reconsider participation after making a full assessment of its impact. I will keep noble Lords informed on progress on that particular measure.

My noble friend Lord Bowness asked about transitional measures and I sought to answer him. I have had a supplementary note to the effect that, in case transitional measures are needed, the matter is being considered in a working group in Brussels; this is parallel to the wider negotiations. Our aspirations are that these transitional measures will not be necessary, but they are being discussed.

That concludes my contribution to the debate today. I thank noble Lords for again presenting the views of the European Union Committee and of this House on an important subject. I will be writing a commentary and look forward to continuing dialogue on these issues. I understand that we have a debate on Tuesday on aspects of the Stockholm agreement. This is not going away. It is a live issue as far as I am concerned, as I am sure it is for other noble Lords.

Motion agreed.

Royal Assent

4.36 pm

The following Acts were given Royal Assent:

Supply and Appropriation (Main Estimates) Act,

Finance Act,

Data Retention and Investigatory Powers Act.

House adjourned at 4.37 pm.