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European Union (Amendment) Bill

It has just been drawn to my attention by noble friends on the Front Bench that Amendment No. 55 has not yet been called; and if the noble Lord, Lord Pearson, glances at his text, he will see that it partially covers the area of immigration. So the noble Lord’s opportunity to dilate on this matter tonight, should he so wish, is not wholly undermined. As I was about to say, under the Maastricht treaty Home Office, justice and police matters were dealt with under what was then called the Third Pillar, and that pillar was intergovernmental in character. The treaty of Amsterdam, as many of your Lordships may recall, moved immigration, asylum, border control and civil and family law from the Third to the First Pillar, which operates, as every one of your Lordships participating in these debates over the past weeks must know, on the basis of co-decision by the European Parliament, qualified majority decision-making in the Council and subject to the ultimate jurisdiction of the European Court of Justice. As a consequence of this, the Third Pillar was renamed Police and Judicial Co-operation in Criminal Matters and has so remained for the past decade. The treaty of Lisbon brings all the remaining Third Pillar matters under Pillar 1 and that is the central issue that your Lordships have to consider tonight. The great political philosophers tell us that fundamental to the creation of states is the need for individuals in societies to be secure. That security is achieved by the prohibitions of the criminal law enforced by the police. For the European Union to take upon its own institutions the responsibility of passing criminal legislation and ensuring that it is implemented in member states on the scale suggested in the Lisbon treaty will have a defining impact on the European Union’s ultimate political character. We therefore have to ask: what is motivating those who press for these radical changes? The new provisions are set out in Articles 82 to 89 of the new treaty. It is simply not possible to deal with all of them without occupying your Lordships for several hours. I shall just draw your Lordships’ attention to a few of the more alarming proposals. Article 83(1) provides for the adoption of European Union legislation to establish minimum rules concerning the definition of criminal offences in areas of particularly serious crime with a cross-border dimension. The list includes terrorism, trafficking in human beings, the sexual exploitation of women and children, drug trafficking, arms trafficking, money laundering, corruption, counterfeiting, computer crime and organised crime. Moreover, the Council may, after obtaining the consent of the European Parliament, adopt a unanimous decision to include other areas of crime as well. Article 83(2) provides for other criminal offences and sanctions where this proves, in the words of the new treaty, "““essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures””." The treaty goes on to specify that directives under this article are to be adopted by the same legislative procedures as are stipulated for the adoption of the harmonisation measures in question. So if a harmonisation measure were adopted by qualified majority voting, so would the related criminal offence and sanctions be. Article 85 provides, inter alia, that Eurojust may be given the task, by the Council and the Parliament, of initiating criminal investigations as well as proposing the initiation of prosecutions and co-ordinating such investigations and prosecutions. Article 86.1 permits a European Public Prosecutor to be established in order to combat offences and acts against the financial interests of the Union. That decision would be taken by a unanimous vote in the Council. The related Article 86(2) provides that the European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment the perpetrators of offences against the Union’s financial interests. Article 86(4) allows the European Council, acting unanimously, to adopt a decision extending the powers of the EPP to include serious crimes having a cross-border dimension. Lastly, Article 82 lists three aspects of criminal law that could be subject to harmonisation: the mutual admissibility of evidence, the rights of individuals and the rights of victims of crime. This latter category goes to the heart of individual liberties. It has a substantial overlap with the rights laid down in the ECHR and falls within an area where our own common law traditions differ substantially from the civil law provisions of our continental counterparts. All this represents a remarkable break with the Maastricht model. Why has the Community—or those who have been driving the policy behind the treaty—made this radical break with the past? Many people in the European Commission, I understand, argue that this expansion of criminal responsibilities in the Community is the logical corollary of the freedom of movement of people. Without Community measures in this area, they argue, people would be able to escape justice by exercising their power to move freely throughout the Community. However, surely that task is addressed by the European arrest warrant. Its admittedly unattractive and unnecessarily draconian provisions nevertheless ought to solve 99 per cent of this problem. There is no logical reason for any harmonising measures. Not surprisingly, the scope of these provisions has made some of the member states—that is to say, member states other than ourselves—hesitate as well; hence the emergency brake provision. Measures proposed under certain articles in the Lisbon treaty, where decision-making is enacted by qualified majority voting, are subject to these brake provisions. In these circumstances, any member state can pull its emergency brake where it considers that the draft legislation would affect fundamental aspects of its criminal justice system. As a consequence, the matter is then referred to the European Council and the legislative procedure is meanwhile suspended. Where no agreement is reached in the Council, the legislative procedure remains suspended; but if at least nine member states wish to proceed, then after notifying the Commission, the Parliament and the Council, authorisation for enhanced co-operation is deemed to have been granted. If these measures go ahead in their current form, we are likely to see the enhanced provisions used frequently. This will lead to many member states in the European Community operating a set of criminal justice rules that are different from the remainder. Would it not be much better to proceed, as indeed we did under the old Third Pillar arrangements in Maastricht, with negotiations going on until consensus is reached? In those circumstances the Community would have a level playing-field in matters of criminal law. The relevance of the emergency brake procedure is reduced in the case of the United Kingdom, because of the protocol negotiated, which gives us the right not to opt in to individual measures. At present, the unanimity requirement in criminal justice obviates the need for any opt-in in this area. Under the treaty of Lisbon, as noble Lords are aware, the United Kingdom and Ireland have secured the right to choose whether opting in to all proposed measures falling within the field of freedom, security and justice is an appropriate approach in any given set of circumstances. The protocol also confirms the right of the United Kingdom to choose whether or not to participate in the proposed amending measures. Opt-in provisions will apply to amending measures, as well as the original measure itself. However, by Article 4a(2) of the protocol, when the Council determines that the United Kingdom’s non-participation in an amending measure makes the existing measure inoperable for other member states, it may, by qualified majority, require the United Kingdom to reconsider its decision not to participate. If the United Kingdom maintains its position, the existing measure shall cease to apply to the United Kingdom. But, by Article 4a(3) of the protocol, the Council may, again by qualified majority, determine that the UK shall bear the direct financial consequences necessarily and unavoidably incurred as a result of its exclusion from the existing measure. I should like to ask the Minister how we came to agree to this. Quite apart from the desirability of having a measure of this sort in the protocol, how on earth could we possibly know in advance what the likely scale of our liability could be? Can the Minister be confident that the scale would be small, if not derisory? The other problem in relation to the opt-in which is extremely vexing is that we have to take the decision to opt in at a very early stage of the negotiations. The early negotiations in relation to a particular measure may make what is likely to be the end product desirable. We exercise the opt-in and then the whole character of the negotiations changes and we realise that, for one reason or another, it would be damaging to the interests of the United Kingdom to exercise our opt-in. By then it will be too late to think again. As a consequence of this aspect of the opt-in provisions we are likely to be exceedingly hesitant to get involved at all in most circumstances. Your Lordships will be extremely relieved to hear that I am turning to the final matter, which is the protocol on transitional provisions. Article 9 of this protocol provides that the legal effects of the measures adopted under the old Third Pillar, such as the arrest warrant, shall be preserved until those Acts are repealed, annulled or amended. Following the coming into force of the Lisbon treaty—if that ever happens—it is likely that the Commission will move swiftly to convert many such measures into directives under Title V of the TFEU. The transitional arrangements upon which the UK Government have insisted—inexplicably in my view—will last for only five years. We have apparently negotiated these special arrangements to ensure that where measures have not already been converted from the Third to the First Pillar, the Government can exercise what they describe as a block opt-out with respect to the remaining unconverted measures. Under Article 10(4) of the protocol, the United Kingdom may, six months before the expiry of the transitional period, notify the Council that it does not accept the new extended competences of the EU institutions over any outstanding Third Pillar matters. Once again, though, we are faced with a system of financial penalties in this area. I pose the same question to the noble Baroness as I did earlier in relation to the opt-out protocol. How can the Government be so confident that these financial requirements that will be imposed on us will not be extremely expensive? I think I have said enough to indicate that the scale of these new provisions in comparison with what has gone before is immense. The new powers of the Community are of particular concern when it is taken into account that their ultimate character will be determined not by our own courts but by the European Court of Justice. It is for those reasons that we have tabled these amendments. I beg to move.