European Union (Amendment) Bill

My Lords, one of the vagaries of the changes that the Government have made to the structure of Parliament was their decision to give some of the work of the Home Office to the new Ministry of Justice as a separate department. That does not accord with the terms of the Lisbon treaty, which combines justice and home affairs. In the few moments I have, therefore, I will try to untangle the Home Office from the Ministry of Justice as far as the treaty is concerned, thus leaving myself with the opportunity to speak on border control, immigration, policing and the other Home Office aspects. At this relatively late stage of the debate—although it is only halfway through in reality—one does not want to worry the House by overstressing the generalities. However, I need to provide a reminder that at present most European Union powers relating to migration, visas, borders and asylum are carried out within the First Pillar—that is, on the basis of majority voting—while those relating to criminal justice and policing are held within the Third Pillar, the inter-governmental method that gives each member state a veto. Under the new treaty, they will be moved to the First Pillar, taking them into the area of qualified majority voting, thus increasing the powers of the European Commission to legislate. As regards asylum and immigration, the new treaty provides a framework and a legal basis for the further development of a common asylum system and a common immigration policy. There is an end to the national veto over legal migration issues—despite the Government’s reservations about this, they failed to have it changed—and the jurisdiction of the European Court of Justice is extended into immigration and asylum, an area in which, under current treaties, it has very little role. This is again an area that the Government twice tried to have changed, but again they failed. While asylum measures are already decided by majority voting, the new changes mean that the EU will be able to set uniform standards on how asylum applicants are received and processed and what rights they should have. In Article 61, the treaty also calls for the European Union to, "““frame a common policy on asylum immigration and external border control, based on solidarity between Member States which is fair towards third-country nationals””." In Article 61g, a new wide-ranging power is introduced for the Council to pass measures by majority voting to ensure administrative co-operation between national police and criminal justice authorities and the Commission. Articles 62 and 63 state that the Union shall develop a common policy on asylum, with a view to offering appropriate status to any third-country national requiring international protection. Article 63a states the aim of the common immigration policy for the EU. Worryingly, it repeals the provision that EU immigration policy will not prevent member states from having their own compatible national policy and replaces it with a provision that simply states that member states can determine volumes of entrants to their countries—a considerable change of emphasis. There are significant elements to the treaty that could affect our ability to control and manage our own immigration policies. Mind you, having just read the House of Lords Select Committee on Economic Affairs report on the impact of immigration in this country, I am not sure that it could be said that the Government are managing any aspect of it, but perhaps that is a debate for another day. Although the noble Baroness the Leader of House did not make much play about the opt-ins and red lines that the Home Secretary cited in the other place as being the protection that this country had negotiated to prevent it having to accept EU legislation to which it was not wedded, as many noble Lords have said, in reality, even under the current treaty, that is not an effective safeguard, as a decision to opt in has to be taken at the start of negotiations. At the start, it is clearly not possible to know what the outcome is likely to be once the negotiations are completed. At that stage, there is no further opportunity to opt out if the final result is not to our benefit or liking. However, that gets worse under Lisbon. A new provision to the opt-in procedure would mean that if the UK decided not to support unwelcome changes to legislation on asylum, immigration or police co-operation, it could be barred from the existing measures to which it has agreed. For example, that could result in our not being able to participate in the Dublin II agreement on the return of asylum seekers to their country of origin, to which we have already signed up. One might say that the force of the thumbscrew would ensure that the Government backed down, as the outcome would be unsatisfactory, but that would mean that they would have to accept something that was clearly not in this country's interests in order to sustain something that was. So we can see that the implications of the changes to the treaty in the area of asylum and immigration are far-reaching. Although no one would deny that co-operation and, indeed, co-ordination, in these matters across Europe is likely to be of value—we do not—the ability for this country to maintain its own measures and controls, not harmonised if that is what it would prefer, has effectively been jettisoned. Border controls remain a very sensitive issue. We have had a number of interesting times on this matter from the UK Borders Bill onwards. The announcements due today or tomorrow from the Home Secretary on the make-up of the new borders force are likely to give us room for more timely debates. However, the control of our borders in the control of immigration is one of the most fundamental. Although we are not full members of the Schengen group—we take part in the majority of measures on police co-operation but not on measures on border controls—the expansion of the Schengen agreement and its borders as a result of the recent accession states has made it of fundamental importance to us. It is therefore bizarre that, because we are not members of that group, we are denied input into Frontex, the European organisation set up to manage co-operation between member states and the external borders. An application by the United Kingdom to join Frontex was denied in December 2007 by the European Court of Justice. As an island nation that, it is apparent, is the aspiration of many immigrants, legal or otherwise, to reach, we must retain control of our national frontiers, but it is clear that we have interests further afield and our inability to host Frontex operations on UK territory has implications for Europe itself, which is now being denied that capacity. We believe that this country should retain control of its own borders. I therefore very much hope that, in replying, the noble Baroness the Leader of the House will be able to provide evidence—she may, if she will listen—that under the new treaty, we will be able effectively to do so. The Government's decision that this was an amending treaty that did not require them to adhere to their manifesto commitment to have a referendum is at the heart of the discussions today. I have not touched at all on the justice aspect of this part of the treaty, but, even taking the Home Office elements, which I have tried to demonstrate today, the people of this country have a right to say whether or not they believe that the Lisbon treaty, or the Treaty on the Functioning of the European Union—which trips lightly off the lips—is what they believe to be in their interests. The Government's refusal to test that out is a manifest cop-out.