European Union (Amendment) Bill

This has been an extremely interesting debate on an area which, I agree with noble Lords, is of great importance. I pay tribute to the work of the Constitution Committee. We have not been tardy in responding to its report. My understanding is that we are well within the deadline and we intend to respond in full before Report. I hope the noble Lord will know that we have communicated that to the Clerk of the committee, who I gather was satisfied. Therefore, noble Lords will have a chance to see our report. I have two starting points. The first is to ensure that noble Lords are fully aware of the importance of collaboration on justice and home affairs matters in the European Union. I refer not only to the more obvious ways in which we collaborate across police forces concerning criminal activity and so on but also, speaking from my experience on the Justice and Home Affairs Council, to collaboration on civil and family justice issues. The noble Lord, Lord Wallace, talked about the number of people from the UK who live all over the European Union, and certainly every year millions of UK citizens live, work, travel, study and buy and sell in the EU. Therefore, ensuring that protection exists for them—for example, if they have faulty goods or debts that need to be repaid—is very important. A lot of the UK Government’s work in justice and home affairs—particularly but not only during our presidency—has been on ensuring that we provide the right level of protection for our citizens and indeed for citizens across the European Union. I make that point because this is an important area. Of course, opt-ins in this area have been around since Maastricht and I have certainly exercised opt-ins, or have exercised a decision not to opt in, on a number of occasions. The second starting point is that I agree with much of what has been said about the importance of real scrutiny. I have listened with great care to noble Lords who have raised questions on how to ensure that we do that. I hope to allay some of the noble Lords’ concerns. Having alarmed the noble Lord, Lord Jopling, with my evidence, I am not sure how to put that to rest, but I shall certainly try. I am extremely grateful to noble Lords who were able to attend the committee last week. I hope they will agree that we had an interesting and quite detailed discussion about how the process might work and how we might reinforce or enhance the committee’s work. I agree with those noble Lords who have said that the committee is the appropriate place to scrutinise these issues. Having attended and provided evidence to the Select Committee, I speak from personal experience. I know only too well the expertise and knowledge that has grown up in the membership of the committee and indeed in those who service the committee. I can assure noble Lords, although I do not think that I need to, that the House is well served by the work of the committee and the sub-committee. I also take the point about ensuring that we involve Parliament appropriately. As a Minister, I have taken 17 pieces of legislation and a plethora of statutory instruments through your Lordships’ House. I know only too well that, late at night, our deliberations may not carry the expertise that noble Lords would wish to see. It is therefore important to ensure that when we are discussing issues of scrutiny, we recognise the importance and value of the committee and seek to ensure that that is where the key scrutiny takes place. When talking to the committee I was also keen to ensure that we thought more carefully about how we scrutinise these issues in the light of much of what noble Lords have said about their concerns to ensure that the committee can participate and consider the issues in greater detail. I shall say a little more about the process and answer some of the questions that have been raised. We are sometimes aware of issues in justice and home affairs that have come along from the Commission or which may have been bubbling under the surface because of specific issues that have been around for some time. Until we receive a fully formed proposal from the Commission we cannot start the process ourselves. That process within government involves consultation across the departments that have an interest, the devolved Administrations and other stakeholders. Noble Lords will be able to think of examples, particularly on issues of civil justice, when it was appropriate to fully consult organisations to get their views on how they saw a particular proposal. Having done that, the Government will make their decision. I think that 90 days is appropriate. They have to give us some timetable, and three months from the date of the full proposal is quite generous because it gives us time to look properly at the issues. The Government commit considerable resources to considering the issues properly. For those who think that 90 days to end up with a proposal that will become law is not long enough, I should say that that is the opening negotiating position. Negotiations can take many months on particular proposals, and at the end of that time we will probably be seeking to amend them. At the beginning we ask whether the proposal is in the UK’s interests—whether it would be beneficial for the UK to opt into it or whether we would be in danger of damaging UK interests by opting in. Within that negotiating position there will be issues that we would wish to strengthen, to change or to discuss with colleagues across the European Union to see whether we might make them more effective. On the order for payment, for example, we might want to ensure that the ability to reclaim money is set at a level that is of use to our citizens rather than at a lower level that is of benefit to other nation states but of less use to us, and so on. That is how the process begins. It is not an end in itself but is a process of negotiation. That is very important. When it comes to parliamentary scrutiny and the role of the committee I am keen to ensure that we ““use”” the committee and the expertise I have described as effectively as possible. I have therefore been talking with officials in the Home Office, the Ministry of Justice and the Attorney-General’s office to see what more might be done. As noble Lords who have read my evidence will see, I have clearly accepted the importance of finding ways of collaborating as effectively as possible. In working with the committee over the next short while, we will try to see whether we can be clear that we will lay an explanatory memorandum as swiftly as possible. I know that the noble Lord, Lord Roper, felt strongly about that in my evidence-giving last week. We would make sure that the Government put the proposed position as clearly and swiftly as possible. As noble Lords will know, sometimes when these issues are obvious the Government can be pretty clear with the committee on which way we would expect to go, while other times the consultation process needs to take place first. We would then wish to give the committee some time within the 90-day framework to enable it to have discussions without the Government pre-empting those. Although we will have to discuss how many weeks that might be, I have a commitment from my right honourable friends in another place on wanting to do this, thus enabling the committee to have those deliberations and indeed to call evidence and invite Ministers before it to have those discussions. We will need to ensure that we set that out appropriately. How that can best be achieved is a matter for discussion with the noble Lord, Lord Grenfell, and the committee. I want to make it absolutely clear that I accept it is very important for the scrutiny to be appropriate and at the right level and for the Government to put it forward with the committee in the best way. I want to end on a more fundamental point regarding the whole area of justice and home affairs. As we move beyond the Lisbon treaty and into post-ratification, it will be important for the Government to consider their strategic approach to this area, as they would normally do. Indeed, as noble Lords will know, the Commission will no doubt produce post-Lisbon papers about the general approach that it might take to justice and home affairs. There are areas of collaboration where it would seek to work with member states to develop important areas of legislation, or indeed of policy. We will have to think carefully about what our approach would be. That will have implications for how we handle individual opt-ins. Those may come in all sorts of guises but they need to be part of a strategic approach. The Government should seek to do that in the spirit of wanting to be a participant in the European Union in this area. It is important that Parliament should look at the strategy for government as part of that strategic approach. We will have to consider how best to do that. For example, perhaps government Ministers will initially outline that approach to the Select Committee and the Select Committee will then, through the usual channels, invite the House to debate such a strategy. In itself that will give a sense of direction and some detail on where the Government would go. To be blunt, however, I would not be in favour of the salami-slicing of individual opt-in decisions. I said that in my evidence, and I believe it from my own experience. The decisions do not come in packages, but they are often inter-related within a general approach on civil justice, criminal justice and so on. Decisions need to be taken in that way. Finally, in all this process, regardless of whether the Government ultimately decide to opt in or out—as I indicated, I have done both—one always seeks to do so in a spirit of being part of Europe, of collaboration and co-operation with our European partners. It is possible that, having not opted in at the end of the process, one can then ask the Commission and the Council about doing so if the proposal becomes acceptable. Indeed, a consultation is now out on Rome I—on which I was the Minister responsible for not opting in—concerning whether it is at the point where we could opt in. We spent a huge amount of time looking closely at the working groups, but that was exceptional.