European Union (Amendment) Bill

My Lords, the noble Lord, Lord Goodlad, suggested earlier that it might be helpful to the House if I rose now to explain the proposal. I say to the noble Lord that I am a fervent cat lover and, therefore, were he to return as a cat, I can assure him of my best attentions at all times. I agree with him that I was in no way seeking to nobble anyone; rather, I was seeking to listen, to take note and to put forward proposals on the back of the debate in Committee. We have circulated details of the proposals to everyone who has spoken in Committee or on Report so far. I am extremely grateful to the Constitution Committee for enabling me to appear before it last week. I am also grateful to the EU Committee, which met on the back of my initial proposals and gave me helpful feedback. To be complete, I have incorporated into the proposal all suggestions made to me by both committees on how we might enhance that. I do not say this to ““herd”” them into having to agree with me on everything; I say it to make it clear that I did not stop there but took note of what was put before me. I begin where I left off in Committee. I was struck, as I said to the Constitution Committee, by the fact that your Lordships were seeking to make sure that the existing scrutiny processes, which we consider to be extremely good, were looked at again in the light of changes that were going to be made to justice and home affairs and that the proper and appropriate role for Parliament and your Lordships’ House should also be considered. The original amendment tabled in Committee by the noble Lord, Lord Goodlad, was a serious proposition that the Government thought was worth looking at. We took it away and had a look at what might be feasible, bearing in mind contributions put forward in debate and in consultation with the offices of the Attorney-General, the Home Secretary and the Secretary of State for Justice, which have endorsed what has come before your Lordships today. I will briefly take your Lordships through the proposal that we have in mind. We begin by taking on board something raised by a number of noble Lords, which is the desire to have a sense of where the Government are going in strategic terms on justice and home affairs and to deal with the issue that I raised in Committee of seeking not to salami-slice all the different opt-ins, making a decision on each one potentially out of context with the others. First, the Government commit to bring forward on an annual basis a report that looks ahead at what the approach to the justice and home affairs policy and forthcoming dossiers would be, including where we know what our position would be on the opt-ins. I say ““where we know”” because, as I explained in Committee, it is not always possible to know, not least because of the consultations with other departments, stakeholders outside and the devolved Administrations. However, certainly where we do know, we will make it clear. Every year that report would come forward to Parliament and it would be made available for debate in your Lordships’ House and another place. It would then form the basis of noble Lords’ understanding of the Government’s strategic approach for the year. The European Union Committee would be informed of comments made during those debates, which would help it to understand where your Lordships felt that there were issues that needed to be addressed in greater detail and issues that might be brought forward again. At the end of the year, we would reverse the process and produce a retrospective report that said what we had done, what the application of the protocol for opt-in had been, where we had opted in and where we had not opted in. That way noble Lords would see both ends of the annual spectrum, if I can put it like that. When it comes to individual dossiers, the Government will put an explanatory memorandum before Parliament as swiftly as possible. We already agree that we would do it within 10 working days. ““As swiftly as possible”” means that we will endeavour to do it more quickly than that, but the maximum timeframe would be 10 working days. That would set out the proposal and, where possible, specific views as to whether or not the Government thought that it would opt in and the factors that were taken into account in making that decision. The committees in both Houses would then have the opportunity fully to review the proposal and the approach that the Government had taken on whether to opt in. Let me recap on the opt-in procedure. The Government have precisely 13 weeks from the proposal being given to make the decision whether to opt in. If the Government do not opt in, they cannot participate in the working group discussions, support other colleagues in the European Union or affect what happens in debate on the issue concerned. They have the right, once the decisions have been finally taken, to opt in at the end of the process with the permission of the Council and the Commission, but they will not have been able to participate. Not opting in to a proposition that we might wish to is a serious matter for your Lordships to consider. Provided that the committee presents its views on what the Government are proposing within 13 weeks, the Government will take into account the committee’s opinion on whether the UK should opt in. During that time, committees can, as now, call a Minister to give evidence and they can make a report to the House. If they wish to make a report to the House recommending a debate, perhaps on a Motion on which there can be a vote, they can do so. In other words, within the timeframe that we have set, the committee can bring to your Lordships’ House for debate an issue that it believes is significant and that your Lordships would wish to consider and it can propose to your Lordships that there should be a vote, which the Government would take into account. In putting forward this proposal, the Government commit that they would find government time for such a debate, which would be agreed, as ever, through the usual channels. As I said, where this is done within eight weeks, we shall seek not to come to a conclusion before that, where possible. However, there is a tiny exception to that. When I looked back at all the different decisions that had been made, I noticed that there was one area in which decisions had been made more quickly, which related to the final text of a readmission agreement. These are often concluded with third states late in the day and concern people being returned to third states. Sometimes these come forward much more quickly to allow signatures to be sought at meetings. However, the committee will be familiar with those situations. Where a need to move more swiftly suddenly arises, we undertake to talk to the committee about how to deal with this procedure in that light. However, I stress that it is exceptionally rare for that to happen. I merely put it on the record for completeness. We shall ensure that we keep the committee fully informed if that were ever likely to happen. We shall ensure that a Minister is available to appear before the committee. We suggest that this package of measures—comprising the annual reports at the beginning and end of the year, the explanatory memorandum, the guarantee of ministerial appearances, the Government’s promise not to make a decision within the eight weeks, the right of the committee to bring forward debates and the right of your Lordships’ House to vote on that—can be reflected in a code of practice. We also believe that, to obtain certainty in your Lordships’ House, we should either amend the scrutiny reserve resolution or bring forward a new resolution to sit alongside it. Lest your Lordships fear that we might pull a fast one by putting forward an unamendable proposition, the resolution will be able to be amended in your Lordships’ House. It would also be voted on in your Lordships’ House and in another place. It would incorporate all that I have said, after we have gone into the finer details with the noble Lord, Lord Grenfell, and his committee to ensure that we have captured absolutely everything. Your Lordships would then see it and agree to it or amend it to ensure that it was scrutinised. The noble Lord, Lord McNally, proposed that we should review this whole process—it is always good practice to do so—within three years to ensure that it is functioning properly. That is the process that we have put forward. I shall not say much more about it except to mention that I checked how many opt-in resolutions or proposals we thought there would be over the coming three to five years, bearing in mind the new position. At present the average figure is about 30 to 40 a year. Due to the coming out of and going back into a whole series of measures, your Lordships will be faced with between 50 and 90 opt-in proposals a year. Therefore, I consider that the filter mechanism of the committee determining which should come before your Lordships’ House is even more important. I hope that that is helpful to the House.