Wednesday, April 17, 2024

Baroness Smith on european crime and justice measures

BARONESS Smith of Basildon rose on the floor of the House of Lords to take part in a debate on EU Police and Criminal Justice Measures.

The full debate can be found here

Baroness Smith said: “My Lords, this has been an extremely interesting debate. I express my gratitude to the committee and to the noble Lord, Lord Hannay, my noble friend Lady Corston and the noble Lord, Lord Bowness, who cannot be with us today, for their roles in chairing the sub-committees. Although this is the first opportunity for a formal debate on the initial report, we have used that document to inform other debates on this issue. It has been extremely valuable, not just for the debate but for anybody wanting a greater understanding of the issues involved in opting out and opting back in again. I welcome the fact that we have a debate, at last, on the first report and on the follow-up.

“Too often it seems to me that debates on anything to do with Europe become pro/anti debates without any real regard for some of the very serious issues involved. That must be very frustrating to many people who may not themselves be intensely political but who want to know and understand what the debate is about. I feel that many politicians would do far better to deal in fact rather than just try to persuade others of their own point of view. These reports clearly fulfil that function of trying to deal purely in facts. They provide a forensic and comprehensive examination of the Government’s decision to opt out of all pre-Lisbon police and criminal justice measures and then seek—and “seek” is the operative word, since there are no guarantees—to opt back in to those that they consider to be essential.

“These are not decisions to be taken lightly. A Government’s first duty is to the security and safety of their citizens and, as the noble Lord, Lord Blair, and others make very clear, that security and safety is best served by European co-operation. The Government have to accept that the process of opting out and then, perhaps, opting back in again to some measures is a risk. I share the concerns that the Government’s whole approach to this issue has been more political than practical. No evidence has every been presented of any harm to the UK from not exercising the permanent opt-out, but a great deal of harm is possible from any failure and delay in opting back in to the 35 or more measures in the analysis given by the committee. It seems to me, as has been said by other noble Lords, that it has had a lot more to do with placating the anti-European lobby inside and outside the Conservative Party. We have had the absurdity of the numbers game between the two government parties about how many measures should be opted back into. Surely, it has to be about the substance and value of the measures, not how many. The first report came to the conclusion that the case had not been made for triggering the permanent opt-out. That was repeated following investigations that led to the follow-up report.

Like the noble and learned Lord, Lord Lloyd, I also looked at previous debates, not so that I would not say something different but to make sure that I was not repeating myself. However, I will repeat myself in this case, as in previous years I have asked different Ministers the same questions but never had a satisfactory answer. Those questions are: how many of the measures that the Government want to permanently opt out of are relevant to the UK? How many are currently being used? I should add, how many are in any way harmful to the UK? If I can get an answer to those today, it would be extremely useful. What I am trying to get to, in an easily understood format, is what the precise impact would be on UK citizens of the measures that the Government want to permanently opt out of. The Government themselves claim that a number of the measures are defunct, so have no impact. So was this ever a serious exercise, or was it always political posturing on Europe?

I am grateful to the committee for the very helpful table at the back of the second report that gives details, including most of the information for which I have asked Ministers on more than one occasion. The follow-up report gives more specific information on the committee’s analysis of those measures. The committee clearly shares my frustration at how the Government presented this information and their assessment of the measures. Paragraph 19 of the follow-up report in response to the Government’s evidence and comments on that is devastating for the Government:

“In our view, this lack of analytical rigour and clarity regarding evidence drawn upon is regrettable. Despite the length of its gestation, Command Paper 8671 showed signs of having been hastily put together. We are disappointed that the Command Paper presented both the 35 measures which the Government intend to rejoin and the 95 they do not intend to rejoin in an unconvincing manner. We regret that the grounds on which the Government made their selection of measures to seek to rejoin were not set out persuasively in the EMs”— that is, the explanatory memorandums. That is a devastating critique of the Government’s process.

The committee is also highly critical of the Government’s engagement with Parliament. Noble Lords will recall the dismay of your Lordships’ House on the day of the debate, 23 July, when the government response to the initial response was so obviously rushed out just hours before the debate started. Comments that it had been delayed to produce a more comprehensive report did not appear evident from the content or style of the report.

I hope the Minister will take back to the Government the point made by the noble Lord, Lord Jopling, that this House takes these matters very seriously and it wishes to be taken seriously by government. We want the time to fully consider the implications and to digest and consider government reports. Obviously, nobody wants to see undue delays in consideration, but a House that has the duty of scrutiny and takes that responsibility seriously is understandably offended if unable to adequately fulfil that function. The report does not suggest a timescale but it does indicate what information would be useful, and perhaps essential, in allowing for proper consideration and decision-making.

I want to turn to some of the detail of the follow-up report and the specific measures referred to. As the report reminds us, your Lordships’ House previously endorsed the 35 measures that the Government will seek to rejoin as being in the national interest, and the report welcomes the other opt-ins announced by the Government. Perhaps the most significant and the greatest debate in your Lordships’ House is on the European arrest warrant. We found it inconceivable that the Government wanted to opt out, and I have previously provided examples of cases in your Lordships’ House where it had been invaluable. In a previous debate, I was also critical of the Government’s refusal to implement the European supervision order, which ironically had caused some of the problems about which the Government complained in the European arrest warrant. As I said before, we accept that there were problems and will further consider the Government’s proposed reforms, as the Government have now recognised that reform is the way forward and are not just dismissing the EAW as worthless. We also welcome that the Government have now agreed to implement the ESO, so that it is easier for those bailed outside the UK to be brought back and bailed in the UK.

I shall now turn briefly to other areas in which the committee recommended an opt-in. Its argument in each of those areas is that there is a case for saying that the national interest would be best served if the UK were covered by the measures. Clearly, the Government do not accept those arguments, and I would find it helpful if the Minister could expand on the reasons why they support a permanent opt-out from those measures, particularly as there is a recurring theme—from the committee, from noble Lords who have spoken in the debate and from others—that the Government’s explanatory memoranda were inadequate.

The noble Baroness, Lady Prashar, and the noble Lord, Lord Davies of Stamford, spoke about action to tackle racism and homophobia, and the fact that the UK has been a world leader and a trailblazer on this issue. The concern raised is about the message that the opt-out sends, and whether it is appropriate that, as a world leader and trailblazer, we should step back and give the impression that this matter is not as important to us as it is to other European countries.

Another issue of concern in judicial areas, which was raised by the noble and learned Lord, Lord Lloyd, is the European Judicial Network. I am not a lawyer, but I found it interesting to note that the Law Society of England and Wales and the Law Society of Scotland both recommended opting back in, specifically referring to their view that it would help address lack of training and awareness. The network was supported by the Lord Advocate as frequently being used to seek assistance with overseas European arrest warrants. I would welcome a response from the Minister on this subject, because I am not clear whether the Government are saying that it is not valuable, or that the points are being fully addressed in other ways. I would like some clarification of why the Government think it would be harmful, or prejudice the UK’s interests, if we were part of the European Judicial Network.

I would also be grateful to hear far more from the Minister about the proposed permanent opt-out from the European probation order, which the noble Baroness also mentioned. It has had broad support in the legal profession, and the Northern Ireland Justice Minister considers that it would be particularly helpful in relation to border issues between the Republic of Ireland and

Northern Ireland. I have to ask the Minister a question, which the noble Lord, Lord Hannay, mentioned specifically: what consideration did the Government give to the part of the UK that has a common land border with another country? It is of interest to hear the detailed arguments on this subject, particularly given the submission by David Ford, the Justice Minister. The noble Lord, Lord Hannay, expressed his concern about the lack of consideration by the Government of such cross-border issues. The European probation order is a significant measure, and I am not yet convinced that the Government have made a powerful enough case for a permanent opt-out. I have to ask the Minister: did the Government’s proposed privatisation of the probation service have any bearing on this decision?

We have heard from other noble Lords about driving disqualifications, and the committee has, very reasonably, asked the Government to reconsider their position on this subject. As a Northern Ireland Minister I had responsibility for road safety at one point, and a significant issue then—it remains one now—was the difference in regulations, penalties and offences between the two jurisdictions. I welcome the fact that the Government are committed to introducing legislation to deal with those, but why are such considerations important for that border but not for those between other European countries? I know that the Government have cited costs, but can the Minister say more about what those costs are, given that we are talking about an important area of public safety, and that we are already taking steps with regard to Northern Ireland?

I shall not go into detail on all the other committee recommendations, because in conclusion I want come back to the subject of process. As the Government move into negotiations, these will have to be intense and focused. Where the Government want to opt back in, it is clear that that needs to be done as soon as possible. What consideration has been given to any interregnum there may be, and what mitigating measures might the Government introduce in such cases?

I entirely agree with the committee about keeping both Houses informed. The committee recommends regular reports, but I must express my concern that “regular” may mean something different to the Government from what it means to the committee. We have been through this before—for example, when we expect a report to be presented in the spring, and then spring moves into summer. Regular reports to Parliament would be very welcome. Can the Minister confirm that that will be the case, and tell us what timescale and method the Government are considering?

The idea, put forward in the report, of a review of the operation of the opt-outs, and of what happens when we opt back in again, is also welcome. What plans are in place to assess the impact? Without greater clarity at the beginning of the opt-out process about the opt-in process, the exercise has always been, and remains, a bit of a gamble.

I greatly welcome the committee’s report but the part I quoted, which has given me the most cause for concern, is its paragraph 19 about the, “lack of analytical rigour and clarity”,in the evidence on which the Government have based their decision. I agree that that is deeply regrettable, especially on such important issues as policing and criminal justice, which strike at the very heart of a Government’s first duty to their citizens—that of ensuring their security and safety. I hope that the Government will take note of, and respond in a positive way to, the criticisms and act differently in the future to ensure proper and beneficial consideration of their proposals. In future, I hope that when we have such reports before us we will have timely debates, because these debates contribute enormously and would help the Government in decision-making.

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