Lisbon Treaty (No.1) — (1st Allotted Day)

Business of the House (Lisbon Treaty) (No.2) – in the House of Commons at 3:36 pm on 29th January 2008.

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[Relevant documents: The Third Report from the Home Affairs Committee, Session 2006-07, on Justice and Home Affairs Issues at European Union Level, HC 76, and the Government's response, First Special Report of Session 2006-07, HC 1 021 .]

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Photo of Jacqui Smith Jacqui Smith Home Secretary 3:47 pm, 29th January 2008

I beg to move,

That this House
approves the Government's policy towards the Treaty of Lisbon in respect of provisions concerning the following matters: fighting cross-border crime;
justice;
policing;
human trafficking;
and asylum and migration policy.

The UK's co-operation with our European Union partners across a range of justice and home affairs issues stems, rightly, from the Maastricht treaty. From tackling organised crime to taking action against terrorism, and from providing greater protection of children to ensuring the security of our borders, this co-operation has been, and continues to be, driven by the real challenges we face today. Criminals organise and operate internationally, and we need to work closely with our European and international partners to tackle their activities. In particular, we need to ensure that the EU focuses on these issues, and truly and demonstrably adds value where that makes sense for Britain.

The Lisbon treaty provides the next step in the evolution of justice and home affairs co-operation. It allows us to work more effectively to improve public security and protection, to protect British citizens in their daily lives and to provide mechanisms to help our citizens and businesses living and working abroad. The issues that matter to our people—tackling crime, countering terrorism and securing our borders—are not merely issues of domestic concern. They are, rightly, at the heart of our work in the EU as well.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have listened carefully to the Home Secretary's opening words about the importance for the EU of moving this forward. If this is such a positive move, why have the Government had to negotiate so many opt-outs and opt-ins?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I am coming precisely to the point about the success of the Government's negotiations in ensuring that, through the treaty provisions, we are able, in a much-enlarged EU, both to make progress on some of the issues that are of concern to us and to safeguard our national interests by delivering the opt-in. It was a negotiating triumph. Perhaps more important than the details of the negotiations or ongoing institutional wrangles is the way in which our active involvement in the EU is bringing results.

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Photo of John Redwood John Redwood Conservative, Wokingham

Why did the Home Secretary not just say that Great Britain wishes to keep in place the original architecture—outside the EU treaty and European Court of Justice jurisdiction—and to co-operate with other member states where appropriate, so that we preserve our veto and future Parliaments can change their mind if they wish? The problem with her system is that future Parliaments will be bound by any decision she makes.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I made it absolutely clear that I felt—I shall outline this when I make some progress in my speech—that having the benefits of taking EU co-operation forward through the new treaty arrangements alongside the protection of UK interests negotiated through our opt-ins on a range of justice and home affairs areas was the right balance to deliver the sorts of results that we wanted.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I was going to discuss those sorts of results, but I see that I shall now take further interventions. I suspect that they will not be about how we cut crime, counter terrorism and protect our borders, and that they may well be about something else.

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Photo of Bill Cash Bill Cash Conservative, Stone

This certainly will be germane to the subject matter that we are discussing. I would like the Home Secretary to answer a simple question. A wide range of matters are contained in these provisions. Is she aware that in the other countries, particularly France and Germany, the judges are appointed by political decision-making processes in their own constitutional arrangements? In respect of the application of those provisions, such a process differs significantly from the way in which this country conducts its justice and home affairs.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

That is precisely why we were right to negotiate the opt-in on each justice and home affairs measure. I am not clear what point the hon. Gentleman is making.

I said that I would move on, so I shall do so. Our active involvement in the EU is bringing results. The European arrest warrant procedure has been one of the most high-profile justice and home affairs measures in recent years. It has allowed us to secure the return of those who seek to evade justice by crossing borders and in some cases it has helped to cut years off extradition times. That is a prime example—

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I shall give way to the hon. Gentleman.

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Photo of Bernard Jenkin Bernard Jenkin Conservative, North Essex

In 2006, the previous Prime Minister gave a very clear undertaking to the House of Commons. He said that he would ensure that the justice system

"is radically overhauled so that those"

—foreign nationals—

"who are convicted of a serious criminal offence are deported automatically."—[ Hansard, 3 May 2006; Vol. 445, c. 961.]

Since then, the Chindamo case has taken place. Will the Lisbon treaty provide the British Government with the wherewithal to deport foreign criminals automatically, or will we still be subject to the provisions of the rights of the foreign criminal under European Community treaties, as set out in the UK Borders Act 2007?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Generally, as we have announced recently, we have exceeded our target set last year to deport foreign national prisoners. We legislated in the UK Borders Act 2007 along the lines set out by the former Prime Minister on that occasion. The new provisions of the treaty and our active engagement in justice and home affairs activities enables us to raise issues within the EU, where they exist, and to make progress. I am confident that we will be able to do so.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I think I have answered the question put by Mr. Jenkin, so I shall give way to Mr. Grieve.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Home Secretary touched on the European arrest warrant. That is a good example, because by virtue of what is happening, she will have to make a decision in the next four and a half years as to whether the European arrest warrant will be subject to the new regime by opting in, whereby the ECJ will have ultimate jurisdiction, along with the Commission's enforcement powers, in respect of it. That is very different from the current arrangement, which is an international treaty obligation that the United Kingdom could decide not to follow if it infringed the human rights of those affected. We will be surrendering the final say about that entirely to a supranational body.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

No. As the hon. Gentleman identified, on the whole body of police, criminal and judicial measures that are transferred, it is our decision—six months before that five-year period finishes—as to whether we want to continue in those measures, if they have not been renegotiated or repealed during that time. We will make that decision on the basis of whether continuing in those measures, with ECJ jurisdiction, is in the national interest. We have negotiated the ability to make that decision and we have negotiated that transitional period.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

May I take the Home Secretary back to the substance of this debate, rather than the froth of the Eurosceptics that seems to happen every single day that we discuss this issue? This morning, Sir Stephen Lander, the chairman of the Serious Organised Crime Agency, gave evidence to the Home Affairs Committee, and he stated clearly how important European co-operation was in the fight against drugs and terrorism and in detecting serious crime. What further steps can we take to aid such co-operation between all the EU partners?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

My right hon. Friend is right, and in the body of my speech I will come on to precisely that point. I agree with him that that is the fundamental issue about which people are concerned, and not what he rightly describes as the froth. In the spirit of debate, I am taking interventions, although they have not been especially to do with the issues that my right hon. Friend has mentioned, which are likely to be of concern to people outside the Chamber.

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Photo of Edward Davey Edward Davey Shadow Secretary of State (Foreign Affairs)

Can the Home Secretary confirm that in the Lisbon treaty the UK has negotiated opt-ins and opt-outs on areas in justice and home affairs that previously required the full participation of the UK in EU law? Those areas were given away by the Conservatives under the Maastricht treaty, and under the Lisbon treaty they will revert to UK control.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

The hon. Gentleman has managed to rise above the froth and make an important point.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

Why is the Home Secretary deliberately confusing the need for international co-operation in the war against terrorism and crime with the separate issue of whether we should hand over powers irrevocably to another law-making body? She has already seen the result of that in the promise by the Prime Minister to repatriate foreign nationals at the end of their sentence, which turned out to be incompatible with laws to which she had signed up in the European Union. If this House has already lost its powers to meet prime ministerial promises, why is she considering further laws to hand over more powers irrevocably to another jurisdiction?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I began to explain the opportunities that the treaty will give us to work more effectively in an EU of 27 to deliver further protection on a range of issues. I had mentioned the European arrest warrant, and I was about to give the example of the case of Hussain Osman, one of those suspected of the attempted bombings of 21 July 2005. He fled to Italy, but we were able to secure his rapid return, 56 days after the EAW was issued. He has since been convicted of conspiracy to murder and sentenced to life imprisonment. Without the European arrest warrant, we would still have to face the fact that some member states refused to extradite their own nationals. Without it, extraditing criminals and terrorists from other member states would still be a lengthy, complex and expensive process.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Home Secretary for giving way again, in the spirit of Committee debates, but she is aware that the European arrest warrant is not without its difficulties. There are examples of United Kingdom citizens who have been arrested and sent to other European countries on allegations of relatively trivial offences who have languished in custody. There was a case in Spain recently of two young men who were accused of uttering a forged note in the Canary Islands. Such people can languish in prison for long periods. That ought to be of concern to the Home Secretary in defending the rights of British citizens. Does she not understand that, while acknowledging the merits of the European arrest warrant, once such things are subject to the European Court of Justice and the Commission, she and the Government will lose all control over standing up for United Kingdom interests in these areas? Once in place, such things are irrevocable, and all that the opt-ins do is delay that moment by a maximum of four and a half years. What will the Home Secretary do at the end of that period in respect of the European arrest warrant?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I have already outlined what the position will be in four and a half years. I do not take the hon. Gentleman's charge that there are considerable problems with the European arrest warrant—I have identified considerable benefits of having negotiated it—but I am completely clear that, if we need to improve those procedures further, the way to do so in an EU of 27 members is through active engagement in justice and home affairs discussions and negotiations in the way that the treaty facilitates. Some of the views of Opposition Members would actively work against that by removing us from that sort of active involvement in making decisions that would benefit British people and improve protection across the whole EU.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does the right hon. Lady agree that, if we are to face the much greater problems that we now have with international terrorism, we cannot but do that in any way other than to work very closely and continuously with our neighbours—that needs a provision that goes beyond where we are now—and that co-operation in a general sense is not satisfactory when we face such a very present and important threat?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I think that the right hon. Gentleman makes a very important point. Intergovernmental co-operation can only take us so far, and the commitment to the sort of institutional arrangements in the treaty will help us to address some of those problems.

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Photo of David Winnick David Winnick Labour, Walsall North

Is it not absolutely inconceivable that we can combat the acute terrorist danger that European countries— certainly ours and our close allies as well—face without the closest co-operation on the international scene? It is absolutely amazing, unless it is pure xenophobia, that the Opposition do not recognise that.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

My hon. Friend makes the case extremely strongly. We have now heard that from my hon. Friends and from right hon. Gentlemen in the Opposition. To move on with the substance—

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Photo of Jacqui Smith Jacqui Smith Home Secretary

No. I want to make some progress.

An example is the asylum arrangements agreed under the Dublin regulation, which is underpinned by the Eurodac fingerprint database and part of the common European asylum system agreed by member states to prevent asylum shopping. These arrangements allow the Border and Immigration Agency to check the fingerprints of asylum seekers against records in other European countries and to return those who have already lodged a claim in another member state or who have entered the UK illegally. Since 2003, the UK has returned more than 6,000 asylum seekers to other member states under that system—arrangements saving us about £8 million a year.

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Photo of Patricia Hewitt Patricia Hewitt Labour, Leicester West

My right hon. Friend is making an extremely important point about the impact of co-operation and opting in, for instance, to the asylum qualifications directive under earlier arrangements. Does she agree that, contrary to the argument that we have heard being put by Opposition Members, it is precisely our ability to opt in to arrangements that are legally binding on every member state that gives us the forceful action that is needed in the European Union to deal with problems such as illegal immigration?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

My right hon. Friend is absolutely right about the increased strength over and above simply an intergovernmental process of co-operation that comes from the treaty provisions on justice and home affairs. Coupled with strong domestic enforcement action on immigration and crime, action at EU level can clearly work in Britain's interest.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

No, I shall make a bit of progress first.

On the fight against drugs, we have joined other EU partners in establishing the Maritime Analysis and Operations Centre—Narcotics in order better to tackle bulk smuggling of cocaine across the Atlantic. By sharing intelligence with our partners and backing it up operationally, we increase opportunities for intercepting drugs and help to cut the supply of drugs before they reach our streets. We also benefit from international work against the vile crime of human trafficking.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

In a moment.

During our last presidency of the EU, we introduced the EU action plan against trafficking. Along with our action to ratify the Council of Europe convention on action against trafficking by the end of this year, the action plan will strengthen our hand in the fight against that horrific modern-day form of slavery and make life harder for traffickers in the UK and throughout the EU.

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Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

The Home Secretary is being generous in giving way. May I take her back to the opt-in and its value? Will she take the House through the procedures that will follow under the protocol if the United Kingdom should choose not to opt in to existing measures after four years and six months, or to anything that comes about as a result of amendments in the meantime? What procedure will be followed, and what penalties will the United Kingdom face if it chooses not to opt in?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

The process is spelled out reasonably clearly, but I do not intend to go through it in detail now. It is straightforward and safeguards the UK's ability to opt in. I take exception to the hon. Gentleman's suggestion that there are penalties for not opting in. That is not the case.

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Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

Perhaps the Home Secretary can tell us what description she would choose to apply to an article that states

"the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts."

That is compensation, is it not?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

The hon. Gentleman is referring to circumstances in which the UK decides not to opt in to a measure that amends or builds on another. He is quoting selectively, of course—

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Just let me finish. The hon. Gentleman quotes selectively, because the first stage of that process would be a situation in which the UK's decision not to opt in to a measure rendered the underlying measure inoperable. That is an extremely high hurdle. The provision refers to unavoidable, directly incurred financial consequences of the underlying measure being rendered inoperable, not to a penalty or a fine. For example, if the UK decided not to opt in to a database that then became inoperable, it is not unreasonable that the cost of withdrawing from that database might have to be met. That is not a fine or a penalty; it is a direct financial consequence, and it would be incurred only in circumstances where the underlying measure was completely inoperable; that is a very high hurdle.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If the threshold at which the penalty system operates is so high, why could the Government not secure the same sort of exemptions as the Danish Government, which allowed them to maintain the status quo for as long as they wanted and which were latched into the system? When I read the treaty, I inferred that because of the United Kingdom's key involvement in European decision making on justice and on crime and its suppression, it would be difficult to implement many of the measures and might well cause problems if we did not participate. I am afraid that I do not share the optimistic view that only in rare cases will we have to bear the financial costs.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

The hon. Gentleman might not share my optimism, but he is wrong about the basis of the negotiation and the basis of the direct financial consequences to which he referred.

I shall make a little progress on substantive issues. At the same time as negotiating on the issues that I described, I have been discussing with my counterparts such matters as how the EU can ensure the protection of our children. The JHA Council agreed some years ago that all member states should have in place basic criminal offences to ensure the prosecution of those seeking to exploit or abuse children. That, incidentally, is a good example of where the strength of an EU agreement far outweighs anything that could be delivered simply through intergovernmental co-operation.

The JHA Council also agreed measures to improve the way in which we receive information on convictions against those who have committed such offences within the EU. The UK is taking that work forward through a joint project with several other countries on the electronic exchange of criminal records information.

In tackling child abuse, the UK and other member states have been able to count on the work of Eurojust and Europol, including the successful co-ordination of an operation involving 28 countries to crack an online child sexual abuse case. Ongoing investigation and co-operation of member states through Europol led to significant arrests, including 46 in the UK, the identification of 2,500 "customers" worldwide, and the seizure of thousands of computers, videos and photographs.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I am grateful to the Home Secretary for giving way a second time. On data sharing, is she satisfied that the necessary protections exist among our partner countries, so that data that we send them will be protected and data that come to us will also be protected? That is extremely sensitive and important information about individual people.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I know that that is an issue that my right hon. Friend's Select Committee, the Home Affairs Committee, raised in its consideration of the matter. Further to the response that we gave at that time, progress is being made on the data protection framework directive within the EU, which will provide some of the reassurances that my right hon. Friend and the Committee were looking for.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

What assurances has the Home Secretary given to our European partners that their data will be better protected than she has managed with respect to the protection of our data?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

The right hon. Gentleman was too helpful last time. I should have quit while I was ahead.

Looking to the future, there is more that can be done at EU level to strengthen the efforts that I have identified, particularly in relation to child protection. At the informal JHA Council last week, the UK presented a paper which argued for further co-operation to introduce mechanisms to monitor sex offenders across Europe, and to tackle the obscene and harmful child abuse content that can be found on the internet.

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Photo of Edward Davey Edward Davey Shadow Secretary of State (Foreign Affairs)

Can the Home Secretary give the House an assurance that the UK will exercise its opt-in to co-operate with other European member states in this area? Surely it is much better to get stronger protection for our children through the approach that she is outlining than through an intergovernmental approach.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

What I was outlining to the hon. Gentleman was not whether we would take a decision on a measure that was being proposed to us, but that the UK was in a position to lead that work across Europe. What we need to ask ourselves is how we can ensure that other countries across Europe that may not have child protection provisions as well developed as ours will also be subject to the provisions that we put in place. Only by developing the sort of work that the treaty sets out and the certainty that that provides can we be confident that when we reach agreement on such serious issues, that agreement will exist across the whole of the EU.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am extremely grateful to the Home Secretary for giving way; it may just help to tease out one of the key issues. I have no objection to the United Kingdom getting involved, as was debated a moment ago, in that particular area. However, does she not see a distinction between getting involved under the existing provision—a mere international treaty obligation—and getting involved under the opt-in provisions that, once the treaty is in force, place the obligations and their enforceability into the hands of the European Court of Justice and the Commission?

I would just like a view from the Home Secretary on whether she sees any difference between the two mechanisms. The issue may well be where the real difference between us lies; I suggest to her that there is an enormous difference between the two concepts in respect of the maintenance of national rights and sovereignty over those issues.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

ECJ jurisdiction already applies to the existing provisions on migration and asylum, for which we are already able to operate our opt-in. Some of the examples that I have already given have answered the hon. Gentleman's charge. In fact, as I have identified, the way in which we will take forward the treaty, with the safeguards that we have put in it, is likely to enable us to make progress across the whole EU.

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Photo of Gisela Stuart Gisela Stuart Labour, Birmingham, Edgbaston

What slightly troubles me is that at the moment we envisage circumstances in which, for example, other countries are forced to do things in respect of child protection that we think right and proper; we think that that would be a good thing. However, can the Home Secretary not envisage circumstances in which we would be forced by qualified majority voting to do things that we would not think appropriate if we had decided on our own what should amount to a criminal offence and what should not? What could we do about that?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

The nature of the opt-in that we have negotiated means that we could decide not to opt in to such provisions. That is the strength of our negotiating position—our final position—on justice and home affairs.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I will make a little more progress. The sharing of information that I was talking about is not only relevant for child protection; JHA co-operation has given us access to crucial data-sharing arrangements to tackle terrorism and serious crime—for example, introducing a mechanism that will allow the police to access fingerprint, DNA and vehicle registration information held by other member states so that we can prevent, detect and investigate serious crimes in the UK.

Today I have set out the benefits to the UK that come from better co-operation across the EU: speeding up extradition, strengthening our borders and improving asylum arrangements; smarter ways of working to stop drug smugglers; joint action against human trafficking; new protections for children; and new ways to share information vital to our efforts to tackle terrorism and serious crime.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I will allow the voice of the Better Off Out group to speak.

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Photo of Bob Spink Bob Spink Conservative, Castle Point

The Home Secretary is very generous. Will she explain why it would be in the UK's interests, for instance, to give the EU powers to set minimum and maximum prison sentences? How can that be in our interests?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Previously, the very fact that certain criminal offences can be recognised throughout the EU has been important. Let us take the issue of recognising the definition and the nature of terrorism: when that agreement was reached, only seven of the 15 countries had a definition of terrorism. It is obviously a good thing for us and our security across the EU to be able to ensure that there is a common definition of terrorism.

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Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

May I ask my right hon. Friend to shift the focus slightly—although perhaps not now—and deal also with civil justice, which comes under the justice rubric of today's debate? Civil justice offers protections, through co-operation, for families with abducted children, consumers—with the proposals for a European small claims court—and, above all, for business, which sometimes has great difficulty in taking effective legal proceedings against parties in other member states because of the lack of co-operation between the judicial authorities. Surely there are other benefits in the civil justice system which we should not overlook.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

My hon. Friend is absolutely right. I will get to that point, but he has made it eloquently.

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Several hon. Members:

rose —

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Photo of Peter Bone Peter Bone Conservative, Wellingborough

On human trafficking, how will this new treaty improve the current situation in dealing with co-operation not only between European Union countries but countries outside the EU?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Article 69B of the Lisbon treaty defines trafficking in human beings and sexual exploitation of women and children as a

"particularly serious crime with a cross-border dimension".

As such, measures can be adopted to establish minimum rules on criminal offences and sanctions. Those measures would of course be subject to the UK opt-in and the emergency brake, but in my view they would help us to ensure that the seriousness with which we address human trafficking in this country is shared across the whole of the EU. This is a good example, I am afraid, of a crime that would not be as well addressed were the hon. Gentleman's view that we would be better off out of Europe to be the case. There is no way that we can tackle cross-border crime such as human trafficking by reverting to our borders and believing that we can address it most effectively in the domestic environment.

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Photo of Peter Bone Peter Bone Conservative, Wellingborough

Human trafficking is a European problem and a world problem, not an EU problem, and we should co-operate with all the countries involved. The Home Secretary failed to give one single concrete reason why the new treaty would improve the situation and reduce human trafficking, other than quoting some words from the treaty. If we are talking about words, can she tell me what concrete reduction in human trafficking this treaty will bring?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

Earlier—perhaps the hon. Gentleman missed it—I referred to the fact that we were able to negotiate, under the UK's presidency, an EU action plan on trafficking that enables us to put in place not just good practice but shared standards on how we could safeguard victims and be clear about offences; of course, implementing it is important as well. If the hon. Gentleman reads Hansard, he will see that I gave a specific and detailed answer to his previous question.

To deliver on these issues of concern and to give our citizens the right levels of protection, we clearly need to engage actively in tackling crime and immigration at the EU level. The alternative promulgated by some Conservative Members—to disengage from Europe, to focus on the domestic, and to depend on ad hoc intergovernmental arrangements—is not only unrealistic but an ineffective and inadequate response to the challenges that we face.

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Photo of Sally Keeble Sally Keeble Labour, Northampton North

To return to the point about trafficking brought up by my neighbour, Mr. Bone, several women and children in my own constituency, just up the road, have come in with every sign of having been trafficked from countries well outside the EU but with EU passports. Part of the traffickers' supply train runs through Europe, and without the powers in this legislation it will not be possible to chase them up and deal with them properly.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

My hon. Friend makes an important point about the route through which women are often trafficked, and she is absolutely right.

In negotiating the justice and home affairs chapter, the Government made clear their absolute determination to protect our common law system and police and judicial processes. We were clear that EU co-operation in this area should not affect fundamental aspects of our criminal justice system. We have achieved that outcome. The extended opt-in arrangements that we have secured mean that we have a complete choice as to whether to participate in any JHA measure. We have also ensured that the jurisdiction of the ECJ cannot be imposed on the UK in this area—it will apply only to the extent that we have chosen to participate in a JHA measure. As each proposal for new EU legislation on JHA comes forward, we will have the right to decide whether we participate in it. In many cases, given the importance of the issues in question, some of which we have touched on today, it will clearly be in the UK's interests to do so, but in others we have secured the right not to participate and not to have the resulting legislation apply to the UK. I have already explained the position with respect to the existing body of EU law on police and criminal judicial co-operation and the jurisdiction of the ECJ. The deal is significantly better than that under the defunct constitutional treaty and represents a huge negotiating success.

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Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

On the specific issue of whether this is a negotiating success, may I refer the Home Secretary back to the point made by my hon. Friend Mr. Clappison, from which she was very keen to move on? Is not the fact of the matter that the Government have negotiated a situation that allows the UK to withdraw from some of the arrangements, but only at a price? That price will be determined by a qualified majority vote on the recommendation of the Commission—a decision in which the UK will not be involved.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

No. In fact, I replied to Mr. Clappison at some length, and I outlined the circumstances in which there would be any direct financial outcomes. First, in order for such a matter even to be under consideration, the UK's decision not to opt in to an amending or building measure would have to render inoperable the measure to which it was an amendment. That is a pretty high threshold. Secondly, the only costs for which the UK could possibly be liable would be direct financial consequences that were unavoidable because of the impact of that decision. As I have now said that twice, I do not intend to go over it again.

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Photo of John Redwood John Redwood Conservative, Wokingham

Will the Home Secretary tell us how she would have felt if the previous outgoing Conservative Government had passed a series of laws that Labour did not like and had locked them all in by means of an opt-in so that they could not be repealed without the consent of most of the other member states? Is that a democratic way of proceeding?

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I would have hoped that any Government had negotiated hard in Britain's interest. I would have hoped to see negotiating success such as that which we have seen in this case, although I am not sure that that Conservative Government would have achieved it. I also would have expected lengthy and detailed scrutiny of the proposals, along the same lines as that which we are carrying out and that will take place over the coming days. That is what the Government are delivering.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

I will—those on the Opposition Front Bench are making free despite their ability to make speeches later.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am deeply grateful to the Home Secretary for allowing me to intervene. There is not a great deal of time for us to make speeches because the debate is limited to three and a half hours. Will she estimate the financial consequences to which the UK might be exposed through the limited financial repercussions that she mentioned a moment ago? She seems to be saying that that will not happen, but presumably she has some idea of how many billions or millions—or just hundreds—that that exposure might involve.

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Photo of Jacqui Smith Jacqui Smith Home Secretary

As I have spent some time explaining, the chances that any direct financial consequences would arise are very slim, given the high threshold that would have to be reached before any consideration of the matter could take place.

Based on the foundation that I have spelled out, we can continue to work with our European partners to our mutual benefit. That does not always require changes to the UK, which is what Conservative Members often focus on. For example, I have already talked about our success in agreeing a common set of terrorist offences in 2002.

We benefited from the work at EU level to strengthen external borders. Even though we do not participate in the Schengen border arrangements that apply in most member states and have explicitly reserved our right to maintain our frontier controls, we have benefited from those efforts. Most transit routes to the UK for illegal migration and people trafficking, as my hon. Friend Ms Keeble mentioned, lie through the territory of EU member states. By working with bodies such as the border agency Frontex, we can help to reduce the flow of migrants in transit to the UK.

As well as protecting our citizens, JHA co-operation can provide the means to help them live, work, buy, sell, study and do business in another European country with the same levels of protection and assurance as they have in their own. Instruments that make it easier to undertake cross-border litigation are necessary because such cases can be substantially more expensive than purely domestic litigation. My hon. Friend Rob Marris was right to point out that a European small claims court procedure will apply within a year which could, for example, help holidaymakers to obtain redress if they have bought faulty goods in another country. In addition, businesses will have a range of options for obtaining judgments against those in other member states who owe them money.

We have always been adamant that EU co-operation must be in Britain's national interest. It must not—and it will not—adversely affect fundamental aspects of our justice system, nor undermine our ability to safeguard national security. Equally, we have seen the clear benefits that co-operation can bring to public protection, the management of our borders and the delivery of justice. Our opt-in on justice and home affairs will allow us to continue to participate in measures where that makes sense for Britain, while safeguarding our national interests at the same time.

We face a clear choice. Agreeing the Lisbon treaty allows us to put institutional negotiations behind us, and to get on with the job of work that our citizens expect us to do. We can choose to work in Britain's interests and deliver greater protections in the fight against crime and for our national borders—or, as we have seen this afternoon from Opposition Members, we can devote ourselves to ongoing institutional wrangling that in actual fact works only in the interests of those whose ultimate goal would be to withdraw Britain from the EU entirely.

Our citizens are safer and our country is more secure as a result of our active involvement in the EU, and I commend this motion to the House.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 4:32 pm, 29th January 2008

I beg to move amendment (a), to leave out from "House" to end, and to add instead thereof:

"disapproves of the Government's policy towards the Treaty of Lisbon in respect of provisions concerning fighting cross-border crime, justice, policing, human trafficking and asylum and migration policy because the Treaty weakens the UK's ability to determine its own policy in these important fields, would bring to an end the intergovernmental nature of EU co-operation over policing and criminal justice, abolishes the safeguard of the national veto in almost all remaining areas in justice and home affairs matters and creates the possibility that the UK could be fined for refusing to participate in certain legislation in these areas;
and notes that the European Scrutiny Committee, in its Third Report of Session 2007-08, HC 16-iii, paragraph 75, is "concerned that the interpretation of the red line to "protect UK civil and criminal justice" as only requiring control of the decision to opt in or not does not recognise the loss of protection that will occur every time jurisdiction is transferred from UK courts to jurisdiction by the European Court of Justice and the Commission.".'.

I was truly sorry to hear the manner in which the Home Secretary approached the debate. We have rather important topics to discuss, but her facility for avoiding some of the basic facts that the House needs to consider is breathtaking, and it is coupled with the completely inadequate amount of time that has been made available for us properly to scrutinise the Bill.

The Home Secretary told us that the treaty was a negotiating triumph. I can think of many ways to describe the treaty but, by referring back to what the Government said about some of the clauses that they have now accepted, I shall try to show that it is a little difficult to see it as a triumph when it contains so much that the Government so vociferously objected to previously. The Home Secretary has a facility—it might be a good thing in a politician—for glossing over some of the unpleasant fundamental facts about the treaty, its nature and the future of the EU.

A moment ago, Keith Vaz described me as a Eurosceptic. That is a little difficult: I am half French, and not normally sceptical about half of myself. I must tell the Home Secretary that I am beginning to think that I shall have to apply for a French passport to escape her identity card provisions. That might be my only recourse.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

In a moment. I can tell the Home Secretary that I believe fully in co-operation between European states and that I have no difficulty at all with the concept of intergovernmental co-operation. However, the first question that the right hon. Lady should have asked is, "What is the treaty actually about for those member states that intend to participate in it fully?"

There can be only one answer to that question. The treaty sets up the architecture to deliver common norms of criminal justice and policing through the harmonisation of criminal justice laws and the recognition of judicial and extrajudicial decisions. That is as fundamental a change in the EU's nature as there has been since its foundation. Our European partners have taken a decision—and they are fully entitled to do so if they wish—that must inevitably lead over a prolonged period, through the operation of qualified majority voting, and the work of the Commission and the European Court of Justice, towards harmonisation. In 30 or 40 years' time, there will be common systems of justice controlled from outside nation states in order to ensure conformity. That is the model they have chosen to adopt, and they make no secret of it. The Home Secretary looks glum; I am sorry that she cannot accept the reality. That is what they have chosen to do, and the UK Government have said repeatedly that they want it to happen—certainly in terms of our own involvement.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

My hon. Friend makes the important point that the Government did not want these provisions. I have a list of the 40 amendments tabled by the Government representative at the Convention on the Future of Europe, Mr. Hain, of which only two succeeded: one of them deleted "safety" and inserted "security". If that is a negotiating triumph, does my hon. Friend wonder what a failure might have been like?

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend makes a good point. The fact is that the Government lost out in the negotiating process and did not achieve their aims. Perhaps they were in a difficult position. Somewhere in the Departments, somebody is advising the Home Secretary, correctly, that the developments in criminal justice that the European Union wish to pursue do not sit easily with notions of national independence, which in this country are underpinned by the rule of law and our common law principles. There is no escaping that; it is part of our national tradition. The same applies to Scotland, which also has a common law and Roman-Dutch law tradition mix. Such a system does not fit neatly with a Napoleonic model, which much of the parts of the treaty that deal with judicial and criminal matters are all about.

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Photo of Tony Baldry Tony Baldry Conservative, Banbury

Following the point made by my right hon. Friend Mr. Heathcoat-Amory, whether one is Euro-positive or Eurosceptic, the intellectually disingenuous part of the Government's position is that they broadly welcome the Lisbon treaty, but whenever they are challenged about something nasty in it, they say, "Don't worry, there is a red line." Intellectually, one cannot have it both ways. We heard very little from the Home Secretary about the so-called red lines. Does my hon. Friend have any confidence that the red lines—if they are necessary, as the Government say they are—will hold?

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have serious doubts about the red lines, and I shall come back to them in a moment, but my hon. Friend makes another important point. The Home Secretary spent most of her time saying that the red lines would provide protection, but the rest of her speech dealt with how international co-operation facilitated by the EU had benefited this country. I have no reason to disagree with that in some cases, although I might in relation to some examples. What she was not prepared to debate was the text of the treaty. It is the treaty that we are signing. We might have opt-ins, but it is the treaty to which we wish to become a party, and it envisages a major and profound change, taking the European Union from being an economic grouping with common interests in social policy areas to one with a single justice system. That must be where we are going.

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Photo of Bill Cash Bill Cash Conservative, Stone

In relation to Denmark, and the Home Secretary's claim that there was some sort of negotiating triumph, the Danish position has been preserved in the words of one of the protocols. Judicial co-operation will continue to apply to Denmark, unchanged in its present form, even if subsequently amended or replaced under the reform treaty. We did not, therefore, even do as well as Denmark.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend is right. I tried to intervene on the Home Secretary to ask her about that. The European Union could not afford to give the United Kingdom the opt-outs that it gave Denmark because of the difficulties arising from our participation in several key areas. The Home Secretary simply did not reply to that point—I do not know whether she will do so during the debate. However, it is a material issue for the House to consider.

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Photo of Bob Spink Bob Spink Conservative, Castle Point

Perhaps my hon. Friend can set out the nine important aspects of home affairs and justice that the treaty will abolish and that this country is effectively surrendering to the EU, and the impact of that surrender on our control of home affairs in this country?

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I fear that I might disappoint my hon. Friend because it is a three-and-a-half-hour debate and I cannot do what he asks unless I prevent all my hon. Friends and all other hon. Members from contributing. I intended to use some examples to cover my points, albeit not comprehensively, but we have been denied the opportunity to debate individual amendments.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does my hon. Friend accept that the House could do itself more justice if the Government allocated suitable time for the issues to be debated properly? Those of us who support the treaty of Lisbon could then explain the basis of our support. The Government have refused all of us the right to debate the issues.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with my right hon. Friend. My experience of the Chamber is that, if one bothers to come in and listen to the debate, one learns a great deal, especially from other people's points of view. What really gets me is that we are reduced to soundbites over a short period instead of being allowed to consider measures properly. That is one thing that will ultimately do the Government in. It is a shameful state of affairs, which means that Bills are passed without our fully understanding the Government's position, and the Government do not listen to their critics' comments, which might enable measures to be improved.

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Photo of Bernard Jenkin Bernard Jenkin Conservative, North Essex

Learco Chindamo committed the notorious murder of headmaster Philip Lawrence and the Government spent a considerable amount of money on trying to extradite him to his home country. They failed because of the provisions on free movement of persons. Is not it a failure of their negotiation that we still cannot, under the treaty of Lisbon, automatically extradite the foreign criminals whom the Prime Minister promised we could extradite?

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Government were foolish to sign up to the relevant directive without scrutinising it properly—another thing in which, I fear, the House rather specialises.

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Photo of John Redwood John Redwood Conservative, Wokingham

Will my hon. Friend confirm that, every time the Government opt in to an area of competence under the treaty, the House can no longer reach a free and independent view and repeal and amend it and it cannot be debated sensibly in a general election? The people, as well as Parliament, have lost their power.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend is right and I shall deal with that point towards the end of remarks.

Let me consider, not thoroughly because I do not have the time, examples of the Lisbon treaty's not matching up to what the Government claim or the Government's opinion of it when the text was being negotiated in the past few years. Let me begin with article 61. The Home Secretary issued a parliamentary Labour party briefing today, which states:

"The European Court of Justice will have jurisdiction across all Justice & Home Affairs—except for some aspects of police co-operation and Member State action concerning law and order and internal security."

Indeed, the Government have argued that internal security must remain a national issue, yet article 61 specifically provides:

"A standing committee shall be set up...to ensure that Operational cooperation on internal security is promoted and strengthened within the Union."

The status of that committee and whether it is the embryo of a far more bureaucratic model for ensuring conformity in nation states remain entirely unclear. There is a generic power under article 61G for the Council to "ensure administrative cooperation" between national police and criminal justice systems, which will arguably allow the Commission to gain access to sensitive national information.

During the negotiations, the Government criticised the article and said that they considered it to be unacceptable and unnecessary and sought to get it deleted, but failed to do so.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman may say that, and I could forgive the Government if there were just one or two isolated examples. However, one can go through the text of the treaty and find one example after another of where the Government said that they thought the text was unnecessary and dangerous from the United Kingdom's point of view, but then accepted it.

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Photo of Ken Purchase Ken Purchase Labour, Wolverhampton North East

That is absolutely correct. If the hon. Gentleman had ever been in negotiations, he would understand that one takes a "give some, take some" approach. What our Government set out to do in that negotiation was to achieve their red lines, and that is what they have done.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

What happened in the negotiations calls for some explanation from the Government, but we have not yet heard a word of explanation from the Home Secretary.

It is argued that co-ordinating immigration policy might have benefits. I fully acknowledge that, but let us consider just one thing: the rights of third country nationals, including those who might have irregular status or be having their status regularised, to move around the EU at will. The Government said that they considered the retention of a national immigration policy to be essential. That was rather strong language, but they clearly no longer consider that essential, because they have allowed the provisions to which they objected to go through.

Rob Marris commented, quite rightly, on civil justice. The Government were seriously concerned about a clause in article 65 on civil justice and the maintenance of judicial independence. If I may say so to the Home Secretary, that does not seem to be a slight matter. The Government's concerns concentrated on the fact that, in a rather innocuous form, article 65 said that it would provide

"support for the training of the judiciary and judicial staff."

The Government were not against that; indeed, one can see that it might be quite useful in some European countries, particularly some of the new accession members. The Government wanted the inclusion of an easy little phrase that would recognise the need to maintain judicial independence, but the European Union negotiators—the other participants—denied them that amendment.

What is the Home Secretary's view about that? Does she consider it irrelevant? I should like to give her an opportunity to intervene, if she wants to. I do not think that the independence of the judiciary is an irrelevant consideration, so I hope that we shall hear from the Government at some point in this debate about that important point.

There are other examples to which one can turn, particularly in the field of crime and justice. Crime and justice, despite the Home Secretary's trying gently to avoid the point, have never been subject to any of the European Union architecture, until now. There is bilateral co-operation under the aegis of the European Union, but there is no enforceability in respect of the agreements that we reach. That is to change, particularly if the Government choose to opt in.

What are we to make of article 69A, which provides, for example, that there may be provision for the EU to take powers to deal with

"the rights of individuals in criminal procedure"?

I simply say this to all my hon. Friends—to those who may be in favour of the treaty or those who may be against it: the House is entitled to an explanation of why that provision is included, what the Government think about it and whether, leaving aside the opt-in for one moment, they think that there is any risk of intrusive activity by the Commission and the European Court of Justice in criminal procedure, which is an area in which they have consistently said that they ought not to be involved? Indeed, the Government said:

"Paragraph 2 is unacceptable in its current form. In particular, the intent on the 'definition of the rights of individuals in criminal procedure' would cover almost any aspect of criminal procedure during an investigation, prosecution and conviction. It is essential that this article is restricted in scope and is made subject to unanimity."

In terms of the generality of the treaty, however, they have secured nothing of the kind.

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Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

Does not article 82 on page 70 of the consolidated text document, of which the hon. Gentleman will no doubt have a copy, state:

"Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals"?

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That might be the case, but the Government's position has consistently been that the European Union should not intervene in criminal procedure. I shall make a few more comments about this in a moment, but I say to the Home Secretary that the potential undermining of the criminal justice system through the mechanisms of the treaty is without doubt the most serious aspect of the treaty in its entirety. It has nothing whatever to do with the legitimate aims of the European Union.

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Photo of Denis MacShane Denis MacShane Labour, Rotherham

Is not the most important part of any criminal procedure its very beginning, when a person is arrested? Is the hon. Gentleman really saying that he is going to revert to the old Tory position of hostility to the European arrest warrant?

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall come on to the European arrest warrant later. The right hon. Gentleman sometimes leaps up like a jack-in-the-box, but I have a funny feeling that he might not have been in the Chamber during the Home Secretary's opening speech, otherwise, he would have heard the exchanges on this issue. I recommend that he read them in Hansard, but I will come back to this matter later.

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Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

Does my hon. Friend accept that, if we are to have mutual enforcement of criminal rules between the 27 member states, it is legitimate to have minimum standards of protection for individuals in all our criminal procedures, particularly as the treaty makes it clear that, if we wish, we can impose higher standards in our procedures—as we choose to do—to protect individuals in our criminal process? Is there really anything wrong with that? Are we to help to facilitate criminal processes in other countries if they are not respecting the minimum standards that the 27 member states expect to be followed?

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. and learned Friend must consider the extent to which this might be an opportunity for rules to be made and imposed on our criminal procedures from outside. This raises difficult issues. As I said earlier, I do not object to the concept of international co-operation and treaty-making in order to achieve desired goals. I suggest, however, that there is a difference between a treaty reached under the aegis of the EU under third pillar structures—which seems to have been working well, and the Home Secretary told us all about the good things that have come from it—and a system in which we accept, once we have opted in, that areas of criminal justice policy and any amendments made to them will, for ever thereafter, be subject to the control of the Commission and the European Court of Justice. I do not think that that is a slight matter.

I have to say to my right hon. and learned Friend that one of the great failures of the Government has been to persuade their European partners of the success of the unanimity provisions and the third pillar, and to allow them to go gallivanting down this road. Articles 60 to 69 of the treaty seem to be a blueprint for achieving a Napoleonic system of justice throughout the countries that are signing up to it. It is perfectly plain that that is what is going to happen.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

There is a competition, so I give way first to my right hon. and learned Friend.

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Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I am grateful to my hon. Friend and I am pleased that he accepts the Maastricht settlement, the merits of which I recall having great difficulty persuading many colleagues when I was Home Secretary and taking it through the House. My hon. Friend is quite right to accept the co-operation that we now have and to say that the big change is that there will no longer be the third pillar, as provisions will be subject to the institutions. However, to take up his example of a few moments ago, is my hon. Friend really saying that there is a serious danger of the majority of other member states seeking to impose on us higher minimum standards of protection for the individual in our criminal processes than this House would find acceptable? I really think that that fear is fanciful: there might technically be a risk, but I have to say that, with respect, I simply do not believe that it will arise.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

May I take my right hon. and learned Friend back to the European arrest warrant? There might be arguments for the desirability of the European arrest warrant to speed up process, but I have to tell my right hon. and learned Friend that it would be impossible on any reasonable analysis to argue that the European arrest warrant has improved protection for defendants facing extradition. I do not think that my right hon. and learned Friend would attempt to say that, because it has short-circuited many of the rights that defendants previously had. If I may say so, that seems to me to be the precise area of criminal procedure that I was trying to highlight. Of course I accept that it is most unlikely that someone will come along and tell us that we have to change our criminal justice processes, but it could happen in areas where the EU is seeking to ensure conformity between countries—it will apply if we are opted in—in respect of practices that have cross-border implications. I really do not think that that can be brushed aside so simply.

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Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

I am grateful for the hon. Gentleman's generosity, but may I draw his attention again to article 82? Contrary to what I understood the hon. Gentleman to say, this procedure goes through the European Parliament and the Council and in a sense provision is made for all states to opt out. Let me quote the article again. It states that the rules concern the

"mutual admissibility of evidence between Member States;... the rights of individuals in criminal procedure;... the rights of victims of crime;... any other specific aspects of criminal procedure which the Council has identified in advance by decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament."

I emphasise "unanimously" and I put it to the hon. Gentleman that he seems to be overlooking the fact that this is a two-way street. If we are talking about minimum standards, they are minimum standards that protect my constituents in any of the other 26 member states. That is desirable. The hon. Gentleman must look at both sides of the coin.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I can see the two sides of the coin, but under the current third pillar arrangements the UK may negotiate and reach unanimous decisions to bring in treaty obligations that do precisely what the hon. Gentleman seeks. If for any reason those treaty obligations start to unravel because of difficulties of interpretation, the UK is able to retain its sovereign right to act to protect its own citizens, but once that has been transferred by opting into the new system that the Government find so exciting the only way out will be through a denunciation of the European treaty in its entirety. As I happen to think that there are considerable benefits from EU membership, I do not particularly want that to happen. However, when one starts bringing into a treaty that has a largely economic foundation these areas of crime and justice, which the Government themselves insist should be a matter for national Parliaments, as time goes by we run a serious risk of having precisely that sort of problem. That is what we should be teasing out.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

Let me return the hon. Gentleman to his attack on the European arrest warrant, which I thought very feeble. He pled that it was weak in defending the defendant, while failing to give it credit for allowing us to bring back from Rome very quickly one of the bombers who had killed people in this very city. Surely that is of more concern to our citizens than the argument that he is presenting.

Is the hon. Gentleman not aware of the robust stance taken by Home Office Ministers who said that they would not give up any of the defences in our own extradition treaty to secure the European arrest warrant? That is the Government's position, and the hon. Gentleman should applaud it. We are defending ourselves against the next phase that may arrive, and power lies with us to retain those provisions in our extradition treaty despite the European arrest warrant.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have listened carefully to what the hon. Gentleman has said, but I must tell him that the arrival of a system of arrest warrants is a very marked change from the previous position on extradition, which was that foreign Governments wishing to extradite British nationals had to show a prima facie case against them. It could be argued that the advantages to this country, administratively and in law-enforcement terms, of getting people out of foreign countries are considerable, but I do not think we should ignore the fact that a protection that has historically existed in our country's criminal justice system to prevent individuals from being sent abroad when there is not a sufficient case against them has been abandoned.

I fully appreciate that the issues are difficult to reconcile. However, there is a difference between an international treaty on the basis of which the United Kingdom can treat discretely, and from which it can resile if necessary, and a system involving entrenchment in a complex series of treaty obligations that are of great economic interest to this country. It is beyond my comprehension that we should consider including crime and justice when the Government themselves have highlighted the dangers that are likely to flow from that.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I will, but then I must make progress.

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Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

My hon. Friend has been very generous.

Is it not the case that, as far as this country is concerned, the European arrest warrant has been decided under the existing third-pillar provisions, that the European Court of Justice has no jurisdiction, and that the European Commission has no right of enforcement? Should not Labour Members, including Mr. MacShane, address the question of what benefits this country could gain by allowing full jurisdiction for the European Court of Justice and rights of enforcement for the European Commission? Does that not apply across the board?

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Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. Before Mr. Grieve replies, may I point out that interventions are becoming longer? They now include a prelude, a middle and a peroration. Given the limited time available for Back-Bench contributions, perhaps Back Benchers will keep their interventions concise.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend Mr. Clappison is absolutely right. As I have said, the irony is that these developments appear not to have been necessary to achieve the objectives that the Government have previously set themselves. In areas in which unanimity has been achieved—I believe that there are nearly 80 examples—the Government have secured understandings and conventions with other European Union countries that may well improve our criminal justice system, but that is entirely different from surrendering jurisdiction to the European Court of Justice. It is beyond my comprehension that the European Court of Justice should have such jurisdiction—I do not see the necessity—but, above all, I have heard no explanation from the Home Secretary of why the Government consider this acceptable, when in the early stages of the convention they spent so much time arguing against it.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

I am grateful to my hon. Friend. As he will know, on the European arrest warrant this country keeps to the principle of dual criminality. We do not allow people to be extradited to another country for something that is not a crime in this country. The House has always insisted on that, and it is a provision in the Extradition Act 2003, but it is under threat from the Commission, which disapproves of the way in which the United Kingdom has implemented the arrest warrant. Does my hon. Friend agree that once it is governed by majority voting and the European Court of Justice, that provision insisted on by the House will be undermined?

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend is absolutely right: there is plainly the potential for it to be undermined by majority voting.

That helps to explain why the Government's arguments on their red lines and opt-ins are so hollow. Far from solving their problems, the opt-ins and red lines will simply postpone over a four and a half-year period a series of decisions on which the Government are extremely reluctant to tell the House what they will do in individual instances. Each time they decide to opt in within the sphere of criminal justice, they will be—particularly with the possibility of amendments to follow—essentially providing a small hostage to fortune without knowing where the road will lead and without the ability to control the process other than by letting off the nuclear option of saying that the totality of our European Union treaty obligations will be abandoned. It is difficult to understand that to be an example of good government.

The Government acknowledge that there are aspects of this treaty that we should approach with great caution—they also failed to negotiate properly with, or persuade, their partners about that. Yet they now tell us that that does not actually matter very much because the opt-ins will give protection. The opt-ins clearly will not do so. The real protection we had was under unanimity, and the problem we now have is that once every opt-in is negotiated we will have qualified majority voting. I simply wish to ask the Home Secretary a question—I hope that the Minister who will reply to the debate will deal with it. Which of the 80 matters to which we are now signatories do the Government think they can readily opt in to once this treaty is up and running, and which of them do they think will present a difficulty? The House is entitled to know that.

We have in the recent past witnessed the Prime Minister going through all sorts of strange permutations and convolutions about Britishness. He tells us that there are commissions looking into Britishness, and that he wants to examine it closely and to come up with all sorts of recommendations, but our criminal justice system is one of the foundations and defining matters of our national life. That is not to say that it is perfect, but it is certainly distinctive and the Government—quite apart from my party—appear to be committed to its protection. I fail to see how the Government will do that with the treaty in its present form and the opt-ins provided.

This afternoon, the Government have shown a capacity to trash just about every institution they come up against. They are certainly treating the criminal justice system and the rule of law in this country with contempt, and they are treating Parliament in the same way by curtailing debate.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee 5:08 pm, 29th January 2008

It is always a pleasure to follow Mr. Grieve, who has won many awards for his parliamentary skill and ability. Sadly however, he concentrated in his speech today not on the substance of the justice and home affairs agenda, but on what I was going to call his Euroscepticism although I should apologise for calling him that because we now know that he is half French—I should, perhaps, now say that he has been half a Eurosceptic in his arguments.

In contrast, the Home Secretary made an excellent speech in which she rightly set out the Government's commitment to further co-operation with EU partners on the justice and home affairs agenda. I commend her on what she has done, and I commend to the House the Home Affairs Committee report entitled, "Justice and Home Affairs Issues at European Union Level", which was published on 11 October last year and which is tagged to the motion before the House. I intend to speak about the report and its influence on the Government's decision to accept the treaty and to put its main provisions before the House. The report was written before my time as the Committee's Chairman, but I know that its members, some of whom were present during the earlier part of the debate, were keen to ensure that although it is called the Home Affairs Committee, it carefully examined the European dimension.

The Committee examined the following issues: justice, of course; practical co-operation between member states; mutual recognition, including the development of minimum standards across the whole of the EU; the harmonisation of the criminal justice systems; the processes of decision making and whether problems are driven by third pillar procedures; the significance of a trend towards internal agreements between informal groups of member states outside the EU framework; and the current developments in common border controls and visa arrangements.

International crime, people trafficking, migration issues and other policing issues are, as the Home Secretary and others have told the House, no longer issues just for internal domestic consumption, and it would be very foolish to treat them as such. The Home Affairs Committee has been very clear in its recognition that we cannot keep our country safe and fight organised crime and terrorism without working closely with our neighbours. It said that in some cases not enough had been done to ensure a better level of co-operation. The treaty of Lisbon, and its commitment to those principles that I have outlined, is therefore extremely welcome.

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Photo of Bill Cash Bill Cash Conservative, Stone

Many people would agree that a good idea lies behind international co-operation, but why would the right hon. Gentleman especially single out that legal entity called the European Union when the problems that arise, as he has so aptly described them, are relevant to a global problem? Why does he just mention the European Union, particularly given the legal systems involved? For example, as I pointed out earlier, the political control over judges is greater in some European countries than it is over here.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I have enormous respect for the hon. Gentleman and his views, but he must understand that although we obviously have to go beyond the European Union to deal with issues such as international crime, human trafficking and terrorism, we need to begin with our partners. The strength of our relationship with our EU partners strengthens our position in dealing with these issues with the rest of the world.

The Committee felt strongly—I am sure that the hon. Gentleman will agree with this—that the Government must control some areas of the decision-making process on the justice and home affairs agenda. I am glad that the treaty strengthens the opt-out and thus recognises the concerns expressed during our deliberations in producing this report. In our view, policy initiatives at EU level should be pursued only if there is solid evidence that they are likely to make a practical difference to the effectiveness with which common challenges facing EU member states in the JHA field can be tackled.

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Photo of Bernard Jenkin Bernard Jenkin Conservative, North Essex

The right hon. Gentleman may recall giving evidence to the European Reform Forum on the question of democracy, accountability and transparency in the EU. He agreed that there was a democratic deficit in the EU and that the transfer of more and more law-making functions to the Commission and the European Parliament was not the answer to the democratic deficit, yet he agrees with this treaty, which provides for a substantial transfer of law-making powers from democratic Parliaments in the member states to the institutions of the European Community. He has said that the European Union cannot be a democracy. This treaty is a transfer from democracy to something that is not a democracy, so how will he address that problem?

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I remember giving evidence to the hon. Gentleman's forum with great pleasure. Nothing that I have said today in any way contradicts what I said before his forum. Of course we have to pool our thoughts, resources and arrangements to ensure that we are more effective. That is what being a member of the European Union is all about and that is what we signed up to in the Maastricht treaty and in all the treaties to which Governments, whether Conservative or Labour, have been a party. The fact remains that it is only through co-operation that we will make progress, but there has to be absolute and proper scrutiny of what is happening—and that is what is happening in this Committee stage.

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Photo of Gwyneth Dunwoody Gwyneth Dunwoody Labour, Crewe and Nantwich

Has my right hon. Friend ever visited the state of Cameroon, two thirds of which is French-speaking and one third English-speaking? Its judges cannot agree on how they should record their judgments. The English-speaking tradition requires written judgments and the French one requires oral judgments. I am sure that that is not an example of the sort of problem that we shall encounter, but one does wonder.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

Only someone with the distinguished experience and ability of my hon. Friend could suggest that the House should compare Cameroon to the European Union— [ Interruption. ] I do not think that that is a legitimate comparison, but I respect my hon. Friend's views and her wonderful pronunciation of French.

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Photo of Bernard Jenkin Bernard Jenkin Conservative, North Essex

The right hon. Gentleman says that he is in favour of increased co-operation. We are in favour of co-operation, but that is provided for under the international arrangements that already exist. These proposals would mean a transfer from co-operation to, dare I say it, coercion, subject to qualified majority voting and the European Court, under the European Union. This is a completely different system, and it is not co-operation.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

If the hon. Gentleman had stopped at the word "co-operation" and not gone on to "coercion", he would have taken the House with him. The fact is that we have to have co-operation when we deal with issues such as international crime, terrorism and human trafficking, as I shall explain.

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Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The right hon. Gentleman is in danger of setting up a straw man. He seems to suggest that anyone who is against this treaty is against co-operation. We are in favour of co-operation, as my hon. Friend Mr. Grieve said, but the real question that the Government have to answer is what advantage we gain from the new process over and above the co-operation that we already have, as the Home Secretary outlined at great length.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

What we get is the ability to catch more criminals; to deal more effectively with human traffickers; and to use the European arrest warrant to bring more people to justice. I have no fear of the extension of qualified majority voting, because every analysis of it shows that Britain is almost always on the winning side and hardly ever on the losing side. I pay tribute to my former private secretary in the Europe department of the Foreign Office, who regularly used to bring me analysis of qualified majority voting that showed that Britain was on the winning side. I do not know why the Opposition do not accept that fact.

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Photo of Ian Davidson Ian Davidson Labour, Glasgow South West

Surely it is easy to be on the winning side if one capitulates every time there is a row. Anybody can manage to be on the winning side by constantly changing sides. Surely that argument misses the point.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

That may happen in Glasgow, but I do not think that it happens in the negotiations that go on in Brussels, whether under a Labour or a Conservative Government. When Ministers represent the British Government they act in Britain's interests: they do not capitulate in order to please other countries. Ministers ensure that whatever is decided is best for Britain.

Policing is an area in which co-operation will increase as a result of the treaty provisions. I am pleased to see that the treaty sets out a timetable to ensure the full establishment of Europol and allows member states to be involved in proper monitoring of the way in which it operates.

I ask the Home Secretary, who is in deep conversation with the Minister for Borders and Immigration about very important matters, to what extent she regards such monitoring as enabling Parliament to be part of the decision-making process. I wonder whether the Minister for Europe will say, when he responds to the debate, whether he is happy with the timetable for Europol or whether he expects and wishes the timetable to be accelerated. The proper and effective operation of Europol is in everyone's interests, and I hope that he will also confirm that, if not the Select Committee on Home Affairs—I am not trying to empire-build—the whole of Parliament can be involved in the process.

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Photo of Tony Baldry Tony Baldry Conservative, Banbury

Does the Chairman of the Home Affairs Committee agree that, although Europol might be a good initiative, practically none of his constituents, nor any of mine, have heard of Europol or what it does? This is becoming a secret-garden debate. If we had had a referendum on the issue, there would have been an opportunity at least to ensure that everyone understood the issues—good or bad—in the treaty.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

Most of my constituents might not have heard of Europol, because they have never come to the attention of Europol, and therefore they have not been involved in any serious crime that would result in their being asked to visit or being visited by Europol. If the hon. Gentleman is saying, "Let us go out there and explain the institutions of the European Union to the people of Britain. Let us have a proper debate about our role in the EU," I am with him absolutely. That is what the Government have been doing for the past 10 years, despite the attacks that they constantly receive in the tabloid press about their good work in Europe.

The Select Committee argued quite strongly that the European borders agency, Frontex, which is based in Warsaw, had untapped potential and that it needed proper resources if its efforts were not to be diverted into emergency operations. In June last year, there was a major Frontex operation to tackle illegal immigration from Moldova. At least 11 countries, including Britain, were involved in the operation, which resulted in the detection of at least 109 illegal border movements. That demonstrates the benefit of organisations such as Frontex and the importance of co-operation with our European partners.

I would be grateful to the Minister if he told the House in his winding-up speech what the reform treaty will mean for Frontex. Although separate from the EU, it is vital for European protection. The UK asked to opt in to Frontex, despite some objections that, to participate in Frontex, it was necessary to be part of the Schengen group of countries. I ask that Parliament and, indeed, the Select Committee be kept informed of all such developments, and we particularly welcome the opt-in that has been negotiated.

During the Home Secretary's speech, I alluded to the evidence given by Sir Stephen Lander, the chairman of the Serious Organised Crime Agency, about the importance of the work that SOCA was undertaking in the EU, particularly the importance of co-operation in dealing with drug traffickers and those who are involved in human trafficking. It is important that we hear from the Minister what further steps he will take to use the justice and home affairs agenda to ensure that SOCA can work properly and adequately with other such organisations in EU countries.

On data protection, we heard from the Home Secretary about the need to share information. Indeed, when the Select Committee recently visited Washington, we saw the effects of the data sharing between EU countries and the fact that the data were also shared with the United States of America—in particular, passenger name records were used to monitor those who were involved in undesirable activities entering the United States. The Home Secretary gave me an assurance quite strongly that she had brought to the attention of European colleagues the need to protect those data, and I very much hope that that is at the forefront of her consideration. If we share data with European partners and if they share data with us, it is important that those data are protected. If they are not protected, we will have serious problems.

I mentioned human trafficking; the Committee is about to start a major inquiry into human trafficking. We will go to Kiev, Moscow and probably Lithuania to consider the issue of the EU's external borders. Mr. Cash spoke of co-operation with countries beyond the EU. There is a bigger world outside; why are we always concerned with the EU? That is what he always says so eloquently in debates such as this. We do need the co-operation of countries outside the EU if we are to make any impact on those involved in what everyone regards as a modern form of slavery. We recently debated human trafficking in this House, and many right hon. and hon. Members took part. It is important that we ensure co-operation.

The treaty deals with many of the same issues that the Committee highlighted in its report last year. I am pleased with the importance given to co-operation in policing, crime detection and immigration and asylum. They are important issues. I had the privilege of being at the Tampere European Council in 1999, when the process began—for the first time, the European Union considered justice and home affairs—and I watched with great interest and delight as after Tampere came The Hague programme and finally The Hague 2, which ensures that we deal seriously with justice and home affairs. Britain is at the heart of the JHA agenda because of the work of Ministers and officials over the past 10 years and more. I commend the action taken, and I have great pleasure in supporting the Government motion.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs 5:26 pm, 29th January 2008

I am pleased to follow Keith Vaz, both because of his interest in European matters over many years and because of his role as Chairman of the Select Committee on Home Affairs.

Globalisation clearly involves the globalisation not merely of trade but of crime. The communications revolution ensures that, as does ease of transport. Sometimes I think that Members of this House, particularly those on the Conservative Benches, have not caught up with public opinion on the issue. A recent Eurobarometer opinion poll found that 70 per cent. of British people believe that decisions on terrorism, for example, should be taken jointly with our EU partners. As the right hon. Gentleman pointed out, we recently debated precisely that issue in the context of the Council of Europe anti-trafficking convention. The trafficking of men, women and children is a new form of slavery by debt bondage and an outrage against all civilised values. It is an entirely international trade on which the utmost international co-operation is required if it is to be tackled effectively. That includes early ratification of the anti-trafficking convention.

Trafficking is possibly only the most shocking of the crimes now committed by international organised crime, which include drug-running, gunrunning and terrorism grounded in international networks such as al-Qaeda. Tackling such crimes requires intense and regular co-operation, which requires, as Mr. Clarke rightly pointed out, a legal basis in any country grounded in the rule of law, as ours is. The treaty amending previous provisions on the matter will provide that basis.

The Home Secretary pointed out past successes of the European arrest warrant, such as the rapid arrest and extradition from Italy of Osman Hussain. I note that the Centre for European Reform recently reported that extradition times between member states have been reduced from an average of nine months to just 43 days as a result of the European arrest warrant. I was proud to vote in favour of that measure when it came before the European Parliament during my time as an MEP, and I was shocked to see that the Conservative MEPs all voted against it.

Another example of successful co-operation was Operation Koala, which was co-ordinated by Europol and Eurojust. The status of both those bodies will be clarified under the treaty. Officers arrested 93 people in connection with a case of pretty revolting paedophilia—about half of them were living in Britain, and many of those were clearly a danger to our fellow citizens and our children—and identified 23 victims, all girls. That was a real achievement for EU co-operation. How can the Conservatives oppose the effective work of such bodies when those bodies themselves want to be grounded in a proper legal basis?

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I shall give way to the hon. Gentleman so that he can attempt to explain that.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the hon. Gentleman. May I take him back to the European arrest warrant for a moment? I recollect that those on the Liberal Democrat Benches expressed considerable concern over our extradition arrangements with the United States of America because of the lack of need to show a prima facie case. Can the hon. Gentleman explain why the fact that the same thing applies to the European arrest warrant does not trouble him at all? He will know my views from what I said earlier. There may be justification for an arrest warrant Surely the underlying principles are exactly the same.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

The hon. Gentleman is wrong to say that the underlying principles are exactly the same. First, the European arrest warrant is entirely reciprocal. One of the major problems with our current extradition arrangements with the United States is that they bear all the hallmarks of an uneven treaty. They apply far more onerously to us than to the United States. The second fundamental difference, as I am sure the hon. Gentleman is aware, is that we have joint political arrangements within the European Union for determining these matters, including ongoing scrutiny, not just in this place and other national Parliaments, but in the European Parliament and the Council of Ministers. Therefore the two matters are entirely different.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I should like to give way, as Mr. Cash knows, because we have sparred on these issues and so many others, but I shall make a little progress first.

Chapter 3 of the Lisbon treaty sets out the provisions on judicial co-operation. I was pleased that Rob Marris highlighted the practical benefits that that will bring on civil matters—for example, for businesses. We are far more integrated than we ever were in terms of trade, so it is enormously beneficial to be able to operate a small claims court and follow through more easily on matters such as the settlement of debts. The rights of British citizens should not end at our frontiers, but extend beyond into the judicial space of our partners.

Chapter 4 deals with judicial co-operation on criminal matters. One of the things that Conservative Members may forget is that more than 750,000 of our fellow citizens choose to exercise their right under the treaties to live in other EU member states. It is surely right that we should look out for and be concerned about their rights.

The House will remember the hue and cry over the British plane spotters arrested in Greece in 2001 on suspicion of spying. I remember that a number of Conservative Members became extremely exercised about the matter, including even the hon. Member for Stone. In such cases EU-guaranteed rights for people to know the charges against them in order to be able to rebut them would be important, yet attempts to get guaranteed rights across the EU for defendants have repeatedly foundered in the Council of Ministers for more than three years.

I find the position of Mr. Grieve extraordinary. He seems to be arguing that the Conservatives want us to maintain our right to have lower standards of protection for defendants than Romania, Bulgaria, Cyprus, Greece or any other member state. That is the logic of his position.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman did not listen to what I said. He did not listen to the exchange between myself and my right hon. and learned Friend Mr. Clarke, or he did not take it in. I pointed out clearly that the difficulty arose not in terms of the areas that would remain entirely domestic, but where there was a perceived need by the European Union to intrude into areas where criminal process had a cross-border nature. Chris Huhne should examine that carefully, because it is possible that we could end up with lower standards than we have at present.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I listened carefully to the hon. Gentleman during his exchange with Mr. Clarke and I simply do not see the practical impact of what he is talking about. I shall come to what I am afraid I would describe as the edifice of paranoia that he is attempting to establish about the proposals in the treaty.

However, the hon. Gentleman is right to point out that justice and home affairs is a highly sensitive area; that is why it is so important to ensure real safeguards of subsidiarity. As the hon. Gentleman was painting a picture in which we were about to be overrun by people who did not care about democracy, the rule of law or rights for defendants—that is his essential implication about our partners in the European Union—I was astonished that he entirely disregarded what is in the treaty to ensure real safeguards of subsidiarity, and the important general guarantees that enable member states to co-operate but do not impose intrusions from Brussels or Luxembourg.

For example, the Lisbon treaty spells out that the European Union

"shall respect the equality of Member States before the Treaties as well as their national identities".

Such a provision is already contained in article 6 of the treaty on the European Union:

"The Union shall respect the national identities of its Member States".

In the 2004 and 2007 texts, that is expanded to respect for state provision to maintain internal law, order and national security. In addition, and of particular importance to the Government, as we have heard, the Lisbon treaty adds:

"In particular, national security remains the sole responsibility of each Member State."

By the way, that is the first time that such a provision has appeared, and it represents a fundamental difference from the constitutional treaty. Indeed, article 33 of the treaty on the European Union states that the provision on police and judicial co-operation on criminal matters

"shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security."

We have already heard concerns about the creep possibly introduced by the judgments of the European Court.

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Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

In view of the praise that the hon. Gentleman is lavishing on the judicial and home affairs chapter of the treaty, will he say whether it will be Liberal Democrat policy to sign up to that chapter?

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I am very happy to say that we want to co-operate with our partners on matters for which there would be a clear, practical effect in tackling international crime such as terrorism, drug-running and gunrunning. I am astonished that the hon. Gentleman and his friends on the Conservative Benches fail to see that point.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

Let me make a bit of further progress and I shall come back to the hon. Gentleman.

Article 35 of the treaty on the European Union states,

"the Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security".

That brings me to some of the differences between the Lisbon and constitutional treaties; they are particularly important in the area of justice and home affairs. Open Europe has said that, given the fact that 10 of the 250 proposals are different, 96 per cent. of the Lisbon treaty is the same as the constitution. However, a Nature article in 2005 reported the discovery that 96 per cent. of the DNA of all of us in the Chamber is the same as that of a chimpanzee; we would surely agree that the differences between us and chimpanzees are more significant than the similarities.

In fact, there seem to be several very important differences between the JHA provisions in the constitution and in the Lisbon treaty. First, there is specific language to enable some member states to proceed with measures on police and judicial co-operation while others do not participate. Secondly, under protocol 20 there is an extension of the UK's 1997 opt-out on JHA to judicial co-operation in criminal matters and police co-operation. The significance of that in the context of previous decisions in the European Union is extraordinary, and I am not sure that Members have fully appreciated it. In effect, our EU partners have allowed us to join the club on justice and home affairs under the condition that we can unilaterally decide which rules we want to apply and which we do not. This is à la carte Europe, not for any other member state, but for Britain, and it is new in the Lisbon treaty—it was not in the constitutional treaty. Obligations placed on other member states will be sustained, yet we will be free to opt out of any such obligations that might be imposed on us.

In painting his alarming picture of being overrun by people who do not care about civil liberties, the hon. Member for Beaconsfield raises the question of what happens if we do decide to opt in to justice and home affairs matters—as I very much hope that we will, given the internationalisation of so many of the problems that we face. Are we still able to use the emergency brake that sends an issue to the European Council? Yes, indeed we are. It is still possible for us to go to the European Council, although the hon. Gentleman did not touch on that at all. It is deeply significant that article 9B(4) of the Lisbon treaty—I hope that Conservative Members will look at it—deals with what happens when such matters are referred to the European Council. It explicitly states that, except where the treaties so provide, the European Council will determine those matters "by consensus". In legal terms, that means that every single participant in the European Council has a national veto over what will be determined there. The entire picture that the hon. Member for Beaconsfield painted of our being completely defenceless if we make the mistake of going ahead and participating in any of these areas—

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman is right that I did not touch on that—I probably should have done, but it was rather a question of trying to bring my remarks to an end because of the number of interventions I had taken on the emergency brake. Let me point out to him that nothing in the wording on the emergency brake requires the Council to consider such representations; indeed, the wording makes it explicit that it is discretionary.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

It is absolutely clear in the treaty—I have just given the article reference—that the European Council will discuss the matter and determine it "by consensus". The hon. Gentleman has completely failed to take on board the extraordinary impact of that, despite the fact that he is half French. The right hon. Member for Leicester, East, who suggested that because the hon. Gentleman was half French he was only allowed to be half Eurosceptic, seems not to realise the history of these matters, given that General de Gaulle was so keen on the Luxembourg compromise, the empty chair policy and the national veto. For the first time since the treaty of Rome, this treaty introduces formally into law a commitment to proceed on the basis of consensus, not an informal understanding that we will not proceed if there is a lack of consensus. In other words, the Luxembourg compromise championed by General de Gaulle has been inscribed in EU law.

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Photo of Bill Cash Bill Cash Conservative, Stone

I wonder whether the hon. Gentleman is being a little over-enthusiastic. Does he not recall that during cross-examination by the European Scrutiny Committee, the Minister for Europe suggested that the whole of the JHA measures had an emergency brake? Does he not accept that the reform treaty makes no provision whatsoever for an emergency brake in respect of the other matters dealt with under paragraph 4?

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I believe that the emergency brake will apply across the board. That certainly appears to be the legal opinion according to what I have seen, although I do not know what the Minister said in Committee. On the sensitive matters that we are discussing, there is no doubt that the emergency brake applies, that the European Council position is as I have described and that for the first time in any EU text it is made clear that the European Council will proceed by unanimity.

Another important difference is that the provisions in the Lisbon treaty that allow legislation to be adopted on passports, identity cards and residence permits have moved from the citizenship part of the treaty to the immigration part. That means that the UK can opt out, as can Denmark and Ireland. That is an important part of the case that the Liberal Democrats have sought to argue—the Lisbon treaty is fundamentally different from the constitutional treaty in terms of the safeguards that are provided.

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Photo of David Davies David Davies Conservative, Monmouth

Does the hon. Gentleman not accept that although the provisions have been moved at the moment, there is a danger that they might be moved back again? Is that not something that we have seen the EU do before? For example, Britain was given an opt-out on the social chapter one minute, only for the EU suddenly to decide to implement limits on working hours under health and safety regulations the next.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I can see that the paranoia that has infected the Conservative Front Benchers is creeping backwards. I do not recognise that as the real world. When I listen to the descriptions of the workings of the EU that come from those on the Conservative Benches, they bear no resemblance whatsoever to the institutions with which I was involved for six years as an MEP. I urge Conservative Members to use the allowances so generously supplied by this House to get on a Eurostar, visit Brussels and find out what the case is for themselves.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Will the hon. Gentleman remind the House that the Government knew perfectly well that the scope of health and safety in the EU covered those measures that were then implemented? That was part of the original treaty and there was no question that the EU in any sense misled Britain or those who had negotiated the deal.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I am grateful to the right hon. Gentleman for that extremely helpful intervention. His recollection is the same as mine.

I have a question for the Minister. In availing ourselves of those opt-ins and opt-outs, as I hope that we will, what parliamentary scrutiny will that involve in this House? On a formal level, will the Government be able to opt in or opt out merely through statutory instruments? That would probably not be an appropriate matter for secondary legislation. Should there not be a commitment at least to a proper debate on the Floor of the House or even to use primary legislation to make the change?

I hope that the new Government Front-Bench team will dust off some of the proposals made by the Modernisation Committee—and some of the evidence that it was given—about how we can improve the way in which our Ministers are scrutinised when they go to the Council of Ministers, as the Danish Folketing or the Finnish Eduskunta have done. That would give enormous reassurance to the people of this country that we will not have to put up with secret decisions such as those that the hon. Member for Beaconsfield has attempted to portray as a great threat to our national life.

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Photo of David Heath David Heath Shadow Secretary of State

My hon. Friend is raising an important point about the parliamentary scrutiny of any opt-in arrangements. If such scrutiny were not effective, we would be building the use of royal prerogative on top of a previous use of the royal prerogative. As the Government are committed to reviewing use of the royal prerogative in any case, and to providing proper parliamentary scrutiny, it would be perverse if any potential opt-in was not properly scrutinised in this place.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I am very grateful to my hon. Friend for that intervention. I simply reiterate that many of the unfounded fears about the EU would be put right if this House did a much more effective job of scrutinising our Ministers when they represent us in the Council of Ministers. Ideally, we would do that beforehand, as happens with the Danish Folketing.

The Conservatives have pressed for a referendum on the Lisbon treaty, but the problem with that is that the treaty allows us to incorporate its provisions or not, as we see fit. I can imagine that that was not an easy concession for Ministers to obtain. It is frankly breathtaking for the Conservatives to say that this country will accept that concession while retaining the right to reject the whole treaty that our partners wished to implement without opt-ins or opt-outs. In my experience, no business negotiation could conceivably succeed on that basis, and no business would want to bother negotiating with anyone who set out such a position. There has to be give and take.

All in all, we on these Benches hope that the new Lisbon treaty will prove to be a useful way to tackle the increasing globalisation of crime and to extend the rights of our citizens, wherever they choose to live in the EU. We hope too that it will extend the rights of the millions of people who visit other member states in the course of their holidays. However, there can be no doubt that the provisions in the Lisbon treaty are substantially different from those in the constitutional treaty, and that they allow the UK a far greater ability to pick and mix than we enjoyed before. That is the main reason why we believe that it would be a mistake to unpick the arrangements, and why we urge that the House support the Government motion.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee 5:51 pm, 29th January 2008

It is a joy indeed to follow Chris Huhne. He claims to have DNA that is somewhat similar to what we on the Labour Benches have, although I think that it is slightly weaker. However, we accept what he says, as he will be joining us in the Lobby on the Bill.

I am also pleased to follow the hon. Member for Eastleigh because he echoed the questions that I have been raising with the Government for some months. Those questions have to do with the procedures that will allow this Parliament to be involved in the opt-in processes, whereby matters to which we have signed up already and which come under the jurisdiction of our courts will be transposed to the jurisdiction of the European Court of Justice. I am also concerned about the procedures that will allow the House to be involved in dealing with matters to do with the proposed orange and yellow cards, and with the implementation of the passerelle clauses. The passerelle clauses relate to various matters, including those connected with foreign policy.

I am glad that the Liberal Democrats have focused on the procedures involved, and I hope that the main Opposition party is thinking about them too. I am Chairman of the European Scrutiny Committee, and my Committee has agreed, along with the Public Administration Committee, to consider seeking a resolution from the Government that would deal with the matters that I have set out. That resolution would be additional to this Bill, and I hope that it would formalise and make concrete and substantial Parliament's involvement in each of the procedures. In that fashion, the way that matters are handled would not be left to the Government alone.

The people who read our debates are sometimes more aware of our prejudices than the substance of our discussions. It is important, therefore, that we keep it in mind that the motion makes it clear that we are talking about

"justice; policing; human trafficking; and asylum and migration policy", as well as matters relating to "fighting cross-border crime". People will want to know what we want to do in those areas, and whether the reform treaty will help us to perform better. They will not be so interested in our general prejudices about how someone might have moved away from the positions that he or she took in the European Convention, or about how opt-out agreements were reached—for example, whether they came with or without red lines, and what the substance of those red lines was. My Committee has reported on all those matters and we stick by the positions that we took, but people outside will want to know what the House thinks about them.

Two matters underpin—although they might undermine—the House's approach to the subjects being debated. First, there is no clear procedure that allows Parliament to get involved in or to control the opt-in process. The possibility remains that the process could be handled in secret by the Council of Ministers, although I hope that that does not happen.

My Committee has examined the conclusions from past Council meetings, to determine how they were written and where decisions came from. In a report that we are issuing this week, the Committee says that the Council is both secretive and eccentric. It is important that the process involved is neither of those things: it must be characterised by openness and clarity, and all decisions taken must be accountable to this House.

The second thing that underpins—or undermines—our approach to these matters is that we would not retain the status quo if, for some reason, we decided not to opt in on any given matter. My Committee was concerned about that, and some might say that it is ridiculous: surely, if we do not want to go along with the new Community method established in the reform treaty, we should be able to opt out of it. In contrast, Denmark was not asked to opt out because it has a protocol that means that it can keep its existing arrangement if it does not want to opt into the new arrangements—that is, with the Commission in charge and the ECJ providing the final judgments—established by the reform treaty process. As a result of the protocol, the Danish Government and courts will retain their powers of judgment and control. It is clear, therefore, that the Danish protocol allows that country to underpin—and probably undermine—a lot of our concerns about how the reform treaty will pan out.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I read the report from the European Scrutiny Committee, and much of it made tremendous sense. Has the hon. Gentleman received any enlightenment from the Government as to why they did not seek an opt-out arrangement similar to that enjoyed by the Danish Government? Such an opt-out would go a long way towards resolving some of the anxieties that I expressed in my speech.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I believe that the explanation was that we secured a better deal than Denmark did. That was the Government's assessment and they have stuck by it in their arguments, although I suggest that Denmark was probably allowed to retain its opt-out because it is a small country that does not make a significant dent in the general conduct of Community affairs. In contrast, the UK is a large country and a big player in the EU. If we had secured a similar opt-out, other countries might have followed us and demanded opt-outs of their own—something that happened when Poland followed our lead on the charter of fundamental rights. Even so, I believe that the reform treaty deserves our support, as long as the proper procedures are put in place so that Parliament can discuss each transfer of power and opt-in.

I was slightly late for this evening's debate because I was hosting the launch of the Law Society's guide to the treaty of Lisbon. The guide is not prejudiced in any way, but offers a clear elucidation of what the treaty contains. It gives good advice to the legal profession about how the treaty will help those who practise in the criminal, civil and commercial law. It will simplify the legal code, and allow legal professionals to do their business in Europe on behalf of this country's people and companies much more effectively. I was pleased to be asked to host the launch event this evening.

I also attended the launch of an organisation called BlueBlindFold, which was set up by Mr. Steen, who chairs the all-party group on human trafficking. The organisation makes it clear that trafficking is happening in this country. Whether we like it or not, it is a problem in every constituency, and the people of this country want to know whether the treaty will strengthen our working relationship with the rest of Europe so that we can deal with it. I believe that it does.

I was pleased to be at both the events that I have described, although they meant that I missed the speech by the Home Secretary. However, I have some of her briefing notes and, despite my earlier absence, I shall respond to them now.

In its third report of 2007-08, the European Scrutiny Committee made clear its concern that the move to QMV and the jurisdiction of the Commission and the ECJ would lead to the loss of control over criminal justice unless the right to opt in was maintained. We also stated that the UK should retain its right to opt out, as I have said. The Home Office briefing stated:

"The Lisbon Treaty would make qualified majority voting apply to Justice and Home Affairs (things like policing, judicial systems and control of borders). But decisions taken will not affect the UK unless we believe that such co-operation is in our national interest."

It is for precisely that reason that there must be some sort of debate on the Floor of the House every time the Government decide to take part in that co-operation. They will have to convince the House that such co-operation is in our national interest, and it is possible that they will be able to do so. However, I do not want the Government to be able to avoid that responsibility: I do not want them to operate off the radar, as that would give people the idea that they have something to lose and that they are not willing to tell us all about what is going on.

The Home Office briefing also states:

"The Lisbon Treaty allows for the creation of a European Public Prosecutor."

Again and again, the European Scrutiny Committee has made it clear that we would not approve of that for the UK. So far Ministers have been on our side, and we have an opt-in over that possibility. We can prevent the European public prosecutor from having a role in the UK, but we do not yet know what the consequences will be of opting out from that arrangement. What other relationships with the European public prosecutor's office will we have to give up? We may find that we lose out on things because of the opt-in, or the opt-out.

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Photo of Bill Cash Bill Cash Conservative, Stone

I would like to home in on the question of the European public prosecutor as an example. As a member of the European Scrutiny Committee, I certainly want debate on such matters, but what troubles me is the substance of the changes relating to dual criminality, the burden of proof, the judicial process and political interference in the judicial process. It is those substantial questions that trouble me—not exclusively the arcane arguments about opting in or out.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

Perhaps I have been told that I use arcane arguments. I do not remember being accused of that; I am usually told that I am blunt and in your face.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

Thank you. Where I come from, that is called a compliment, on the basis that we in the industrial heartlands of Lanarkshire are not shrinking violets.

However, the substance of the treaty is the matter of the debate, not questions of opting in or out. What does a proposal mean, what does it bring with it and do we want it? Does it give us an advantage and lead to better co-operation? As my right hon. Friend Keith Vaz, the chairman of the Home Affairs Committee, asked, does it give us the power to catch more criminals and to defend our people better? On balance, I would say that a lot of things in the treaty do so.

I have some examples from the Law Society guide. It states:

"EU criminal justice policy is built on police and judicial cooperation; minimum rules concerning the definition of criminal offences, and sanctions in the areas of particularly serious crimes with a cross-border dimension; and the organisation of Europol and Eurojust."

Those changes are welcomed. That is the view of that profession in its defence of people, companies and organisations in the UK. The guide says:

"The Treaty reinforces and consolidates progress in this area to date. It underlines the principle of mutual recognition, allowing a court in one EU country to recognise and enforce a criminal conviction from another."

That is something to be welcomed; the society is correct in that assessment. On criminal law, it points out:

"Under the treaty the EU is able to legislate to influence national law in two circumstances:

1) serious crime with a cross-border dimension—e.g. drug-trafficking, terrorism and organised crime.

2) Where the law has already been harmonised in all EU countries."

With regard to judicial co-operation, there is an intention to remove the veto, but

"the UK reserves the right to opt in on a case by case basis."

That may remove the deadlock that existed in this area.

All those aspects must be applauded with regard to co-operation and the results that they will bring. On police co-operation, the guide states that the treaty

"provides for cooperation for all police and specialised law enforcement agencies. That could impact upon the availability and permissibility of evidence in cross-border cases."

The Law Society does not see that as a negative matter. On civil justice and family law, it states that there is a

"Greater impetus for more local cooperation in civil law with cross-border issues. The UK can opt out of these provisions."

In family law,

"National Governments will continue to wield their veto", which I think people will welcome. The Law Society has taken an objective, professional view of the matter, not a politician's view, as it pointed out to me, and it has welcomed the changes.

We must consider other areas that should be welcomed. For example, we recently saw a report from the Commission to the Council on the application of the directive laying down minimum standards for the reception of asylum seekers. I have to say that the UK did not come out well, although it was robustly defended by the Under-Secretary of State for the Home Department, my hon. Friend Meg Hillier, who has just joined us. The report criticised us, and as someone who has had to deal with families who are justifiably seeking asylum, who had been treated less than humanely by this Government, particularly when they were locked up in Dungavel, I welcome such co-operation, which ensures standards for those of all nations. The report says:

"Minor difficulties were detected with regard to the application of the Directive in time."

The UK is one of the countries criticised. The report also states that

"serious problems exist in terms of the applicability of the Directive in all premises hosting asylum seekers."

Sadly, the UK is again mentioned. The report says that asylum seekers are duly informed by the UK in proper time, but that member states do not always comply with the documentation deadline, and once again, the UK is mentioned. The report continues:

"Certain deficiencies are noted regarding the possibility of appeals against certain negative decisions."

When it comes to a lack of appeals, sadly, the UK is named again.

I welcome the notion of cross-border, EU-wide policing and reporting. We had a debate in this place on common asylum policy, and in time we may choose the method of compulsion to ensure that other countries come into line with our standards. However, people who have not been treated properly in other countries often end up here. That is the problem. If they are not getting justice elsewhere in the EU, they come to the UK. We saw that with the recent floods of people who came in when there was much trouble in the world, particularly in the Balkans and Africa.

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Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

Is not one of the problems that Britain is a country targeted by people emigrating from outside the EU? I recently visited Finland with the European Scrutiny Committee, and the Finnish said that no one wants to go there because it is too cold and the language is impossible. Some countries will be voting on asylum law that will not affect them but will affect us, and is not that a problem, too?

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

People have many reasons for not going to other countries, and dealing with a language as difficult as Finnish will certainly be one. An interesting point—it is not related to asylum—was made to me by the Hungarian Foreign Secretary last week. There are actually more UK residents living and working in Hungary than there are Hungarian residents living and working in the UK. People have different reasons for travelling to other countries, but with regard to asylum, if people are not treated adequately and properly in a uniform manner throughout Europe, they will gravitate towards countries such as the UK. Despite criticisms, I still think that the UK has one of the most open and compassionate views of the rights of citizens to flee from terror and from places where their life is under threat.

I turn to the agenda that is being advanced in this field under the Slovenian presidency. The train is moving, and if we do not want be on it, we had better get off it quickly. Slovenia is a country of 2 million people, and its presidency is taking this area of responsibility seriously. During the next six months, it will have to work on these matters and take decisions on behalf of everyone. Should passenger name records be passed on to other countries, including the United States? What is the European critical infrastructure, and how should it be protected and defended from terrorism? How should we deal with Europol? Europol will not go forward because of the treaty—it will do so anyway.

What is Europol? I have visited Europol and was impressed by it. Europol members travel out of their own jurisdictions and work on our behalf in an information passing and gathering role. Sadly, they do not come down the street to arrest people, but they provide information that allows the local police to recognise individuals. There are questions about Europol's status. Should it have certain immunities? Should it be subject to conditions regarding an EU or EC jurisdiction, rather than to a co-operative arrangement between countries?

We have mentioned Eurojust. That is covered by the returns directive, which allows us to send people back to countries when they are claiming asylum falsely. It is important that that matter is processed, and that it is dealt with under the current presidency. The Justice and Home Affairs Council has considered the matter of e-justice three times, and I hope that people will be able to use an e-justice portal to get justice in Europe. There will also be future group work on justice to consider.

All those things will be dealt with under the Slovenian presidency during the next six months, and we must realise that they are good for Europe and good for the UK. We should take advantage of what comes out of that presidency under the reform treaty. Slovenia is already committed to the treaty, as are most countries in Europe, and we should be with them. Having doubts about the opt-in question, or the fact that we lost some of the arguments in the convention, is not a good enough reason to argue against the treaty.

The paper that we considered in April 2007 on police and judicial co-operation in criminal matters was clearly about making progress through pooling our resources sensibly. We should approve of that. The hon. Member for Eastleigh mentioned Europol, and I have been examining some of its successes. Our countries have problems with counterfeiting. Operation Diabolo, an example of Europol-guided police co-operation, seized 135 million counterfeit cigarettes and other items. Europol should be commended for that sort of thing. A worldwide child sex offender's network was dismantled because of the information gathered, passed on, secured and used by the police in different jurisdictions in Europe. All that was achieved by Europol. Every constituent of every hon. Member wants such things to happen. The idea of being scared of Europol or perceiving it as a bogey man police force is nonsense. We should co-operate with and commend it.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with every word that the hon. Gentleman says. However, he is classically demonstrating the success of the existing third pillar system. If he forgets for a moment his allegiances to his Front Benchers, does he not think that there is little necessity for merging the third and first pillar, or for the consequences, which he has identified, of the opt-in system and the jurisdiction of the European Court of Justice? The existing system has delivered good co-operation and good results.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

If the world could stand still, the hon. Gentleman would be right. However, the world cannot stand still, and Europe cannot stand still. The EU now has 27 members and completely new borders outside it. Moldova has been mentioned. I met the Moldovan delegation yesterday and there is a problem with Transnistria and the trafficking of not only people but drugs and other things that we do not want in our society into Ukraine and the rest of Europe. We are in a completely new Europe because we decided to enlarge for reasons of security, economic sense and general common sense. We have done it; we must deal with the world as we move forward.

My Committee marked out treaty articles from 61 onwards as ones in which opt-ins occur again and again. However, we retain the emergency brake for criminal justice, although we do not for civil law. Article 61E contains a new and additional power, which was not in the constitutional treaty, for national Parliaments to determine whether we opt in or out. There are similar provisions on border checks, asylum and immigration. On judicial co-operation in civil matters, we can opt in but we do not have the red card apart from on family justice. It is important to perceive all those matters as benefits to the UK and the EU.

The question for Conservative Members is how they will convince Europe that they are serious about being part of European progress. What has happened worries me. The intelligence of Opposition Front Benchers is obvious and they are doing a great job of arguing a case in which, in my view, they do not truly believe. They know that Europe must move forward and that people must make new alliances and decisions and give new weight to the preferences of each country.

A question remains about whether the Government will give proper power to Parliament to determine opt-ins and opt-outs and whether we can perhaps send them back to argue, case by case, that we will opt in only if we get the same conditions as Denmark. I would like that argument to be presented. If the Conservative party ever came to power, I hope that its Front Benchers would perceive as reasonable the idea that we must advance but also try to hold on to what we have. Negotiations are all about that. Sometimes one gives up things to gain things. I will support the Government tonight and throughout our deliberations on the treaty because I believe that we will gain more than we lose.

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Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Is it not a problem that the treaty, like so many other aspects of the European Union, is a little like one's grandmother's mangle? Once one's shirt gets caught in it, there is only way through it. [Interruption.] And it is quite painful. The absence of an ability to redirect the EU appears to incline the hon. Gentleman to say that one should simply surrender to it, even when it is going in a mistaken direction. That is why we take issue with the criminal justice articles in the Lisbon treaty.

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Photo of Michael Connarty Michael Connarty Chair, European Scrutiny Committee

I respect the Conservative Front-Bench position, but the hon. Gentleman is like the little boy who sticks his finger in a mangle to try to stop it. He will get a bust finger.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells 6:15 pm, 29th January 2008

I am pleased to follow Michael Connarty, who chairs the European Scrutiny Committee, on which I serve. It has produced two influential reports on the treaty of Lisbon, which show, beyond dispute, that it is, to all intents and purposes, the same as the failed constitutional treaty. The reports also punctured the complacency with which the Government rely on their so-called red lines to protect our decision-making powers.

I believe that the hon. Gentleman would also agree that the work of our Committee in looking upstream at the advancing tide of legislation has not diminished. Indeed, the volume of draft directives, decisions and legislation from Brussels is, if anything, increasing, especially on justice and home affairs. That gives the lie to the frequent assertion during the preparation of the treaties that they were essential for enlargement. The Government claimed often that, without the new constitution or the treaty, deadlock would ensue and we therefore had to move to a general system of qualified majority voting. Yet enlargement has proceeded not once, but twice. Twelve new countries have joined and no reduction in the volume of legislation is apparent.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

Does the right hon. Gentleman agree that he is confusing proposals from the Commission, many of which can languish for years without being agreed, with directives that are agreed by the Council of Ministers and the European Parliament? With a much larger membership of the EU, we need a change in the decision-making arrangements precisely because proposals languish for years on end.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

Many proposals languish for far too long after member states have decisively turned them down. One of the problems is that the Commission never gives up. It waits for its moment and then introduces failed proposals—in the case that we are considering, a failed constitution. I do not agree with the hon. Gentleman's premise. Indeed, all the studies show that there has been no problem with essential decision making. The Minister did not advance a single instance of the inadequacy of current decision making. What proposals are being blocked by the existing mechanism?

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I gave an example in my speech of proposals for guaranteeing minimum standards for defendants throughout the EU. It has proved extremely difficult to reach an agreement on that and there are many other examples. Agreement has not been reached, especially on some tax proposals, for years.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

The hon. Gentleman advances the remarkable proposition that, just because the Commission wants something, we should all agree to it. Of course, many Commissioners have many ambitions, but proposals must rightly undergo an exhaustive decision-making process in the Council of Ministers, the European Parliament and, occasionally, the European Council. Just because one proposal advanced by the hon. Gentleman is facing some difficulty, that does not make the case for switching to an entirely new set of rules that would profoundly alter the rights not only of Parliament but of the people we represent, and in my view undermine our powers of self-government, which is the issue I want to talk about.

In the case of justice and home affairs, we are dealing with a core responsibility that, with tax, is one of the two big duties of the House in guarding the liberties of the people we represent and examining carefully the definitions of the crimes for which they could be convicted, the penalties that they could face or whether they can be tried twice for the same offence, whether they can be tried in their absence and whether they can be extradited to other countries and, if so, under what circumstances. Those issues are the subject of scores of criminal justice Bills that come before the House. I have lost count of the number of such Bills since 1997, but I am sure it is well over 20.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

There have been 35 Bills with the words "criminal justice" in them, but 64 Bills have emerged from the Home Office and the Ministry of Justice.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

Like all good lawyers, my hon. and learned Friend has his finger on the statistics. That is an enormous volume of legislation, and quite right, too. That is why we are sent here. However, we are being invited to export those decision-making powers to people for whom by and large we do not vote, whom we cannot remove and who are unknown to the people we represent.

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Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I am listening to the right hon. Gentleman with interest. Chris Huhne used the term "we" and talked about the advantage to "us" in getting European instruments through. However, one of the reasons they have been held up is surely that they are unpopular with some people, including me. He suggested that we needed ways to make it easier for the Commission to get its way, even if those who are perhaps less enthusiastic about the European Union do not like it. The hon. Gentleman said that we—meaning himself and the Commission—wanted to get things through, but many of us might not like them.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

I entirely agree with the hon. Gentleman. The Commission has a monopoly of initiative in the field. It has always seemed strange to me that the Commission should be against most monopolies but in favour of that one. It wants to retain—indeed, under the treaty it has retained—the sole right to propose new laws. The Commission is unelected and usually comprises people who have been dis-elected—indeed, I can think of many Commissioners who lost their seats or resigned in murky and disagreeable circumstances. The system is almost anti-democratic. It is when future Commissioners are turned down by the electors in member states that they end up in that secret conclave of proto-legislators. I therefore object to the idea that we should defer to the judgments of a secretive body rather than to the people who are elected.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I am grateful to the right hon. Gentleman for giving way again; he is being very generous. However, he is incorrect in saying that the Commission has a monopoly of proposing legislation, particularly in the field of justice and home affairs, where it is currently up to any member state to propose legislation. As a result, there have been enormous numbers of proposals. The Lisbon treaty restricts that power to a group of member states, to make the effort a bit more manageable. The right hon. Gentleman's point is therefore a little unfair to the Commission.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

I concede to the hon. Gentleman that there are specific and comparatively minor provisions for member states to propose legislation. However, the great bulk of proposals that are grappled with weekly by the European Scrutiny Committee comprises those that are made by the Commission and which can be made only by the Commission. That also applies to any repeal. One of the reasons no legislation is ever repealed is that the Commission holds to the theory of the occupied field: once it has advanced into an area of policy, it is extremely reluctant to give up that occupation so it does not advance proposals for amendment or repeal of legislation, however out of date it may become.

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Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

I am grateful to the right hon. Gentleman for giving way; he is indeed being very generous. The rights of individuals in criminal procedure and the rights of victims of crime will come from the European Parliament and the European Council, not the Commission. On the back of that, I quite understand the right hon. Gentleman's position on protecting the rights of individual British citizens—that is one of the major things we try to do in this Chamber—but as I said to Mr. Grieve, the system is a two-way street. I wish to do my bit through the treaty to protect the rights of our citizens who may be living in Hungary, Germany or wherever else and who may need afforded to them the additional protection that the minimum standards in the treaty will make available. The issue is not only the rights of individuals in the criminal justice system in the United Kingdom, but the rights of UK citizens who may fall foul of criminal justice systems in other member states.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

No, I do not accept what the hon. Gentleman says. My responsibility, as an elected Member of Parliament, is to look after the people I represent in my constituency. They know me, they have access to me and they either vote for me or reject me at elections. That is what they look to in a representative Chamber, but in no way do they regard the European Parliament in the same way.

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Photo of Gwyneth Dunwoody Gwyneth Dunwoody Labour, Crewe and Nantwich

Briefly, is it not a fact that if the Commission wanted to abandon any of the more bizarre proposals that have come from its imagination, it could not do so? Unlike under the British arrangements, there is no piece of machinery to enable the Commission to abandon a directive or a regulation. Indeed, many pieces of proposed legislation still on its list of programming are there simply because it does not know how to get rid of them.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

The hon. Lady is entirely right. Indeed, I have formally asked to be told the extent of the acquis communautaire—the accumulated body of laws and regulations to which we are subject—but nobody can tell me what it is. It is said by those who have tried to study it that it now runs to 170,000 pages, which no human being can comprehend. The acquis communautaire is largely beyond the reach of any democratic institution, because there is never any appetite in the European Union to withdraw, owing to the doctrine of the occupied field. Even the European Parliament is essentially powerless, and the Council of Ministers certainly is, as has been pointed out.

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Photo of Patricia Hewitt Patricia Hewitt Labour, Leicester West

The right hon. Gentleman is being very generous. He is developing an argument, as did his Front-Bench colleagues, against the idea of legally binding minimum standards that result from co-operation between member states and with the European institutions, particularly in the protection of criminal suspects. However, does he not accept that we have been doing that for years through a different institution, namely the European convention on human rights and the European Court of Human Rights, which have long had the power and responsibility in that area? Indeed, in many cases the Court had to hear cases from the United Kingdom because they were not directly judiciable in the British courts. That system has set minimum standards across all the convention's signatory countries, rather than reducing them as his Front-Bench colleagues seemed to fear, thereby helping to protect and in many cases improve them for his and my constituents?

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

The right hon. Lady is overlooking the fact that we are talking not simply about this country adhering to a set of standards enacted or enumerated in a convention, but about transferring our powers to a law-making body. That is what makes the European Union different. It is not like NATO or the United Nations; it is a dynamic, law-making institution with an activist Court. When we export our powers, as we are being invited to, the process is to all intents and purposes irrevocable and will therefore bind future Parliaments.

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Photo of Graham Brady Graham Brady Conservative, Altrincham and Sale West

Does my right hon. Friend agree that it is rather strange that a Government who have fought so hard to bring in a 90-day period of detention without charge should be so keen apparently to give away powers to set minimum standards for the treatment of suspects?

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

I am glad that I gave way to my hon. Friend; he has made a devastating point. If I have time later, I want to give the House an instance relating to immigration and asylum in which the Government are in dispute with a European law that they have signed up to and cannot now get out of. They ought to be extremely cautious about their existing responsibilities, and still more so about those that we are now being invited to sign up to.

We are talking here about the coercive power of the state, and the power to define punishments and to set the rights of the accused and of victims. It has always been regarded as particularly important to subject those powers to the highest standards of accountability and control. People obey the law because, ultimately, they obey their own laws. In an earlier intervention, the use of the pronouns "we" and "us" was mentioned. It is when laws become "their" laws—someone else's laws, imposed laws from another jurisdiction—that people feel less inhibited about disobeying them.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

I will give way to the hon. Gentleman. He is very charming.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs

I am grateful to the right hon. Gentleman for giving way again; he has been very generous. He was talking about where these laws come from, and about irrevocability. I have debated these matters with people of his persuasion over many years, and the point was often made that we could not leave the European Union, that our membership was irrevocable, that we had been locked in and that the key had been thrown away. That has always been nonsense. As we know, Greenland left the European Union. Will he concede that, in this treaty, for the very first time, there is a clear article admitting of the possibility of any member state seceding at any point? To talk about irrevocability is therefore, frankly, nonsense.

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Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

That is the feeblest argument of all. We are talking about a new treaty with awesome powers, yet the only argument that the hon. Gentleman can advance is that we could eventually leave the European Union. I want to create the right relationship between this country and our continental neighbours. The treaty will create the wrong one.

I want quickly to move on to asylum and immigration. These, too, are matters of intense public interest. Only this week, the case of the murdered schoolmaster, Philip Lawrence, was resurrected. He was attacked and murdered by Mr. Chindamo, yet the conclusion of the High Court is that Mr. Chindamo cannot be extradited, not because of the merits of the case itself but because of the provisions of the EU free movement directive. What is particularly bizarre about this is that, in May 2006, the previous Prime Minister said in this Chamber:

"it is now time that anybody who is convicted of an imprisonable offence and who is a foreign national is deported."—[ Hansard, 3 May 2006; Vol. 445, c. 960.]

He made that remark three days after the House had passed European economic area immigration regulations that specifically prevented the deportation of criminals to the EEA, so even the Government did not know what they were doing. They signed up to regulations that prevented the Prime Minister from doing something that, only days later, he promised to do. That illustrates the muddle that we have got into with the European Union. The Government do not even know what obligations they are subject to. This issue will be affected enormously by the treaty. The problem that I have just described arose under the existing treaty powers, but the provisions in the Lisbon treaty go much further.

I believe that this will breed extremism. When incoming Governments—or even existing Governments who change their mind—cannot do anything, people outside the House say, "They're all in it together. Democracy is a sham. We vote for one lot and their promises, but it won't make any difference. They might take office, but they can't change anything. All the powers have been given away. The best we can hope for is that a slightly different lot of Members of the European Parliament will join a slightly different group in the Parliament and maybe at some future date the Commission might, in its wisdom, propose slight changes to the criminal justice regulations. And maybe the new majority in the European Parliament, which we only control a fraction of, will agree with the way I've voted." That stretches democracy to breaking point.

The essential fallacy in this debate is that international co-operation depends on centralisation and common law-making. It does not. This country has had centuries of international co-operation. We belong to more international bodies than practically any other country. We sign up to conventions, we make alliances and we have bilateral agreements all over the world. The idea that, in order to tackle such common problems as crime, terrorism and child trafficking, we need permanently to export our powers from an accountable, democratic Chamber such as this to people we do not know and cannot remove is not just a fallacy but an abomination.

I know that we are running out of time in this debate, and that we are going into Committee shortly, which might enable me to make a number of other points. Let me therefore end by saying that this subject is of core importance, and it is a great shame that we have only one day to discuss it. We are eliding the whole question of criminal justice and immigration, and I have not even mentioned police powers. The House should think carefully before endorsing a system of decision making that it might long regret. By any standards, these measures will involve a change of authority, but these powers ultimately belong not to this Chamber but to the people we represent.

If there were a dispute over the validity of our red lines, or over the assurances that we have been getting from those on the Treasury Bench, the final arbiter would not be a court here or a Parliament that we elect but the European Court of Justice. The ECJ is not an impartial judge in these matters. It is enjoined under the new treaty, in new article 9, to practise "mutual sincere cooperation". If we were challenged on the powers or the validity of our red lines by the Commission, the Court that would decide the matter would be told to co-operate not with us but with the European Commission.

That is almost the most worrying aspect of the whole thing. We are accepting—or, in my case, not accepting—the assurances that we get from those on the Treasury Bench about their red lines, but those who will decide any disputes will not be on the Treasury Bench or even in this House. They will be in a judicial body in another country, answerable to another body of law and mandated to practise "mutual sincere cooperation" with our legal opponents.

I hope that I have said enough to illustrate my strong support for my hon. Friend Mr. Grieve, and I shall certainly be voting for our amendment this evening.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal 6:39 pm, 29th January 2008

I am concerned to find myself supporting some of what the Government have said, because their record on criminal justice is appalling. On almost every occasion when we have debated such issues I have found myself voting on the liberal side—I do not mean Liberal Democrat, of course, as there is little as illiberal as the Liberal Democrats—to bring to the Government's notice the serious damage they are doing to the freedoms of the British people. In worrying about our freedoms, I reflect on how the Labour Government have damaged us in the criminal justice Bills that they have introduced.

Crime, immigration and many other issues that we have spoken about today can no longer be dealt with as they have been hitherto. I say to my right hon. Friend Mr. Heathcoat-Amory that we need a new mechanism to guard the liberties of the people we represent. It is not just that I have an interest in what happens to my constituents as they travel so much more regularly today in the rest of the European Union; and it is not just that I want minimum standards, should my constituents be arrested for traffic or any other offences when they are driving in Slovenia, Slovakia, Vienna or elsewhere. Those reasons are important, yes, but my constituents are threatened by international crime, human trafficking, drug trafficking and other actions that cannot satisfactorily be dealt with under present arrangements.

Let me draw the House's attention to one of the saddest moments in British history. The League of Nations agreed that all nations should accept a minimum enforceable standard. The incoming Government said, "Yes, that is a wonderful idea, but of course it should not apply in Britain because we are so good that we do not need the regulations." It seemed that the then Government could not understand that if they wanted others to reach similar standards, they had to accept the same restrictions as applied to others.

I find it very difficult to accept the argument that because something is new, it must be wrong, and that even though circumstances have changed, we do not need to alter our present arrangements —[Interruption.] Yes, we are all for co-operation—as long as it does not reach the point where we commit ourselves to act together on issues in respect of which, without that commitment, we cannot act effectively.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

If I fail to give way to my hon. Friend, it is only because I have been admonished about the time I have available, but I will answer some of the points he raised.

The truth is, of course, that we have to learn this the hard way. I negotiated in the European Union probably for longer than any other Minister—certainly almost as long because of my long involvement with agriculture and the environment, both of which were greatly subject to decisions in the EU. I have to say that I always found it harder to get one's way when debating and negotiating under the veto than when one was negotiating in circumstances where everyone else knew that if they steamrollered you, you could do the same to them. Indeed, the collegiate and consensual nature of the EU was such that I can honestly say that on no occasion during all those years of negotiations did Britain fail to secure what was in its national interest. Of course it meant hard work; of course it meant getting on with one's neighbours; of course it needed give and take—but in the end, if our country and the others knew what was essential for their national interests, it was possible to achieve it. I do not therefore have the worries that my right hon. Friend the Member for Wells seems to have. I do not have them because I believe that this treaty is a necessary step to enable me better to guard the liberties of the people I represent.

It is necessary to remind ourselves that modern transport, the ability to move money across exchanges, and our present circumstances, in which even the poorest can get on an aeroplane as long as they can pay the tax and fly throughout Europe, represent major changes. These are very different times from when people moved about much less freely, so we need to find a system that works more effectively and meets current circumstances.

Here I am critical of the Government, because I am not at all sure that they negotiated these matters properly, partly because they asked for things that they did not need and did so in a rather hectoring manner. I can think of other Prime Ministers who adopted the same strategy and I am not sure that they always got as much as they could have got if they had behaved differently. Indeed, we have secured opt-outs on some matters, but we might have been able to influence them better if we had not chosen that route. That is what concerns me when I hear the opposition to the proposals before us.

We need these changes to defend our citizens, but others also need the changes to defend their citizens. I find it difficult to accept that the British are always in the right. Let me give the House a simple example. We have resisted the right of European fisheries inspectors to inspect without notice, which has made it almost impossible for them to do their job. It would be hugely to the advantage of many nations if careful consideration of the activities of the Spanish—and, I fear, some of the British—fleets were available so that we could start a sensible fisheries policy. There is nothing wrong with a common fisheries policy; it is just that the policy is wrong. We have never really been able to achieve sufficient commonness to be able to have a policy that would enable us to deal with conservation. The same applies here.

Let me deal with what my hon. Friend Mr. Clappison said about what he calls the penalty. The European Union needs Britain to achieve sensible decisions that benefit the whole of the EU, so if our failure to join our neighbours sensibly proves to be a direct cost to them, and if we make it expensive for them because we render inoperative that which was to the benefit of the whole community, it is a price that we may well feel we should pay, yet it is not a fine or a penalty but a cost. Either it is paid by those who have not incurred it or it is paid by those who decide that it should be incurred. I hope that we will not be in that position, but I do not find it unreasonable for others to ask us to agree to such a position.

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Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

My right hon. Friend is making a most convincing speech, apart perhaps from his last point. On the basis of his careful study of the operation of the penalty clause, will he remind the House who exactly decides whether and how much this country would face in penalties for making these provisions inoperable and what part this country would play in those decisions?

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

If it is we who do not enable a particular provision to be operable, those who wish to operate it do indeed make that decision, but I do not find that too upsetting. I have no doubt that we would make the best case that we could. I must say to my hon. Friend, however, that when one is a member of an organisation this is one of the responsibilities that one takes on. What the treaty of Lisbon seeks to do is enable the peoples of Europe, and the countries of Europe, to proceed effectively on the new terms on which we must work.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I will proceed with my speech, if I may.

Of course, the difficulty for us is that we would like to live in the circumstances that my right hon. Friend the Member for Wells described. It might be more comfortable for us to operate as if the interests of our constituents were confined to these shores and their needs were not impeded by people outside. I should be happier, too, if we had a better record ourselves. When I was lucky enough to be in Austria over the weekend, it was clear to me that the Austrian Home Secretary would not need to say that he could walk in the streets of Vienna safely, and I think that many countries in the rest of Europe would be able to uphold a position in relation to the law that would be envied in this country. So do not let us think that it is all about them learning from us; this is a community in which, together, we can learn from each other.

The deal must be that if we want the ability to control our own future, we must recognise that that control is often impossible unless it is exercised in common with our neighbours. That is true in the context of the environment: given that 50 per cent. of our air pollution comes from the rest of Europe and we export 50 per cent. of the pollution that we create to the rest of Europe, we cannot tackle air pollution unless we tackle it together. Similarly, international trafficking and international crime cannot be tackled unless we tackle them together.

It has been said that although we must do these things together, we should co-operate rather than having binding arrangements. All I can say is that co-operation does not deliver when things get tough. The point of binding regulation—or binding agreements—is exactly as my right hon. Friend says: at the moment when we need it, we can rely on it. We want and expect that in our relationship with our neighbours, but the deal must be that if we expect it from them, we must give it in return.

My hon. Friend Mr. Cash said that this was all about Europe, and asked why we should not extend it wider still and wider. I have to say that if we cannot manage it with our nearest neighbours—the people with whom we share culture, religion, history and a range of other things—the possibility that we could manage it with Togo or Cameroon seems pretty distant to me. We cannot even manage it with the United States. The appalling agreement on extradition into which this Government entered is one of the scandals of which they should be ashamed. The fact that they could sign up to the Fylingdales arrangement on defence supposedly against Iran—

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Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I think that the right hon. Gentleman is getting a little carried away, and going wide of the mark.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

You are quite right, Madam Deputy Speaker.

The fact that all that may be true does not mean that we should not return to the realities of life: that we are part of Europe, that we become more part of Europe as travel becomes so much easier and communication so much simpler, and that we must therefore make the best of it. When our constituents—the people who voted for us—tell us that their daughter has been arrested in another part of the European Union, what will they say? They will say "We are all in the European Union together; what are you doing about it?" Unless we have these changes, my answer will have to be "Well, we have not got around to that yet."

There are those who say that this is merely an economic agreement. I have heard that a bit today. But as a business man—and I have declared all my interests in the register—I know perfectly well that law is crucial to my ability to carry on a business in the European Union. Rob Marris was right to stress that that is a huge advance.

It has been said that this discussion will reveal division on this side of the House. Given the division on the other side, that merely shows that there is real ground for argument, which is why the Government should stand condemned for not allowing enough time for our debates. Within that argument, however, I beg all on both sides who are doubtful not to set the immediacies of narrow legal points against the reality that our citizens, our electors, need the protection that the treaty of Lisbon will give them. Without that protection they will be denied the kind of legal structure that fits the days in which we live, and has moved us on from the days of the carriage and the penny post.

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Photo of Bill Cash Bill Cash Conservative, Stone 6:55 pm, 29th January 2008

I simply want to say that I certainly do not agree with the policy set out in the motion, and I do not believe that it should be implemented in United Kingdom law.

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Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions) 6:56 pm, 29th January 2008

It is a pleasure to follow my hon. Friend Mr. Cash, my right hon. Friend Mr. Gummer, the Chairman of the European Scrutiny CommitteeMichael Connarty—and, indeed, the Chairman of the Home Affairs Committee, Keith Vaz, who very fairly quoted from the Committee's work. He did not, however, quote from its conclusion:

"We recommend that the UK Government should make clear to its EU partners that at present the case for moving criminal law matters from the third pillar has not been made. There is room for debate as to whether, in the future, it may be in the UK's interests to accept such a change. Members of our Committee hold different views as to whether it might ever be acceptable to agree to this. It is indisputable that such a change would be of great significance. The UK Government should not agree to any such proposal without full and specific parliamentary consideration of the issue."

The present Chairman does a very good job, but he was not a member of the Committee at the time. As someone who was, I find myself in the happy position of being able to agree with myself.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 6:57 pm, 29th January 2008

For me, the debate has been a rather nostalgic affair. I made my maiden speech in 1992, during the Committee stage of the Maastricht Bill, at about 1 am. I think that the House was rather emptier than it is at present.

I find it interesting that the arguments of those who supported the Government then were very similar to the arguments of those who support the Government tonight, while the arguments of those who supported the Opposition were similar, if not identical, to the arguments of those who support them tonight.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The hon. Gentleman has asked a very acute question, to which I am sure he knows the answer.

In the few moments left to me to sum up a truncated but, in my opinion, orderly and fascinating debate, I want to pull together some of the themes that featured in it. I am afraid that I shall not be able to pay the tribute that, had time allowed, I should have paid to the Home Secretary's speech. It deserved rather more analysis than I have time to give it, and even, perhaps, more than the House is prepared to hear.

What I will do is congratulate my hon. Friend Mr. Grieve on doing what the Home Secretary was either unwilling to do or incapable of doing: analysing the issues with which we must deal this evening and during the remaining days of the Bill's Committee stage. Let me say in parenthesis that it is perhaps a surprise, and yet no surprise, that the Lord Chancellor has awarded silk to my hon. Friend. Although he will not take up the initials until March, his approach to the debate demonstrated why the award is so suitable, and why we all share in the delight at his success.

As I said, I do not have time to analyse the Home Secretary's speech and, unfortunately, nor do I have time to deal in depth with the speeches of Chris Huhne, of Keith Vaz, who is Chairman of the Home Affairs Committee, and of many other Members. However, I should pause to congratulate my hon. Friend Mr. Cash. He spoke on most nights during the Maastricht debate, although at rather greater length than he spoke tonight, but he was every bit as clear in his one-sentence contribution to today's debate as he was in his longer speeches on previous occasions. I also congratulate Michael Connarty on his European Scrutiny Committee's work on the Lisbon treaty and associated matters and on his speech this evening, which was a model of a Select Committee Chairman's speech on such an occasion.

There has been a parallel debate during our discussions. We all agree that good things can be achieved by international co-operation, but we differ on how to achieve those worthy aims. Some Liberal Democrats and the former Minister for Europe, Mr. Hoon, and some of his Labour colleagues, believe that they should be achieved through greater co-operation within the structures of the EU. Many Conservative Members—I think particularly of my right hon. Friend Mr. Heathcoat-Amory—believe that that co-operation should be achieved, if not more bilaterally, then at least with greater retention of independent power in Parliament, because otherwise what is the point of us? There is a perfectly legitimate distinction between the two philosophical standpoints, and I do not impugn the motives of the Government and nor do I claim that we have right entirely on our side, but I do say that the issues involved are of sufficient seriousness that we should have much longer to debate them. One of the problems we will face as we advance through our current proceedings is a growing perception of democratic irrelevance. It is all very well for the Home Secretary and her colleagues in the Government to return from Lisbon or whichever international conference they have attended and say that they have achieved something or other, but if the British public feel that they have played no part in that—if they feel that they have no leverage on the decisions taken on their behalf—their dissatisfaction with what has been achieved, whether for good or ill, will grow.

It was said in the weekend papers that this Government are now beyond satire; I suggest that they are also beyond parody, but they are not beyond the reach—or the contempt—of the British people, so I urge them to think extremely carefully before they push the British public further than they are prepared to go. It seems that what according to the Government is good for us is what we will get, and an element of condescension enters into Ministers' thoughts as they present to Parliament and the public what they believe is good for us.

What the Government believe is good for the public is the wholesale transfer of the third pillar aspects of home affairs and justice into pillar one. Issues such as drug trafficking, terrorism and serious and organised crime, and Europol and Eurojust, which are currently subject to the third pillar so that decisions on them require unanimity among member states, will be elided into pillar one. As a result, national sovereignty and parliamentary scrutiny will increasingly be eroded.

The 27 November 2007 report of the Committee of the hon. Member for Linlithgow and East Falkirk said it was concerned about the effectiveness of the UK opt-in arrangement on first pillar matters. The report noted that while it was clear that the UK was free to decide whether to opt in, it was less clear whether the UK had a right to opt out of a proposal should negotiations produce an unacceptable text. We have not yet received a decent answer to that troubling question. It is a key question, but the Home Secretary did not find time to grapple with it this evening.

The reform treaty will move the remainder of the third pillar—police and judicial co-operation in criminal matters—to the first pillar with the consequence that qualified majority voting and co-decision will apply as the general rule to justice and home affairs. Legal migration policy will no longer be agreed via unanimity, but will be subject to QMV and what is nowadays called the ordinary legislative procedure—the new name for co-decision within the European Parliament. When matters move from the third to the first pillar, the powers of the Commission and the European Court of Justice are considerably increased. My hon. Friend the Member for Beaconsfield rightly alighted upon that, as did other Members.

The public prosecutor, Eurojust, Europol and minimum standards in criminal proceedings might all be good things in themselves, but the process, the mechanism and the accountability system is as vital as the end result. Let us consider the safeguards that the Government have promised us: the emergency braking system. As far as I remember, emergency braking is applied during times of panic and is likely to lead to skidding and, beyond that, possibly fatalities. The reform treaty produces the alleged safeguard of the opt-in arrangements, which are available to us. The transitional provisions will be of deep concern to our public, yet the Government seem to be utterly reckless of—to disregard totally—the legitimate worries we express this evening.

My time is up. The British public will, however, probably have a further 18 months or two years to reach the conclusion that I have already arrived at as to the worthiness of this Government to continue in office. If they needed any further evidence about their unsuitability for government, tonight is the night that they will have found it.

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Photo of Jim Murphy Jim Murphy Minister of State (Europe) 7:08 pm, 29th January 2008

I am delighted to have the opportunity to respond to the debate, which has been interesting and wide ranging. My right hon. Friend Keith Vaz asked several specific points, particularly in his role as Chairman of the Home Affairs Committee. I confirm to him that we believe that the current arrangements in respect of Frontex will continue as part of the Lisbon treaty and that the June timetable for Europol is appropriate and is still on track.

Chris Huhne made his maiden contribution in his new role; we are all delighted to see him in that post, and his speech was thoughtful and well considered. He asked a number of specific points that I am sure we will continue to discuss throughout the progress of the Bill. He asked about parliamentary scrutiny: we believe that that is essential in respect of this matter and the wider European agenda, which is why clauses 5 and 6, which are not of themselves necessary to ratify the treaty, have been included in the Bill to ensure that there is a stronger power for Parliament to consider and ratify various moves across the EU. They are in place to enshrine the power of Parliament. I also note that the Leader of the House has announced 7 February as the day on which we will have the opportunity to consider motions reforming scrutiny of EU legislation, and this issue will be discussed then. I know that he is deeply involved in those conversations with his hon. Friends.

We also heard an interesting contribution from my hon. Friend Michael Connarty, the Chairman of the European Scrutiny Committee. He talked in great detail and enormous knowledge about the specifics in the treaty and the Bill. A brief contribution was made by Mr. Cash—perhaps mercifully. We also heard from Mr. Heathcoat-Amory, Mr. Clappison and Mr. Gummer. Telling and regular interventions were made by my hon. Friend Rob Marris. We are all delighted that he takes such a close interest in this process, and in all the other processes and procedures of the House. My right hon. Friend Ms Hewitt has been in her place throughout the debate. She made a number of telling and entirely appropriate observations and criticisms of the Opposition's approach to the Bill.

A relatively brief contribution was made by Mr. Garnier, who retains the status of being in a minority on the Opposition Front-Bench team as a pro-European Conservative. He spoke with fond memories of his debut, and maiden speech, during the Maastricht debate. In his role then, he was obviously a member of the Conservative Group for Europe. I do not know whether he still is a member of the CGE —[Interruption.] It is dangerous to disagree with a sedentary intervention from my Chief Whip, but it has not been abolished. More tellingly, it has actually joined the Coalition for the Reform Treaty.

We are living in a world where EU co-operation is key to seizing the opportunities, and tackling the threats, of globalisation. On Second Reading, I spoke of the opportunities of globalisation, but, as hon. Members have mentioned, there is also a darker side of globalisation: crime, terrorism, human trafficking, drug smuggling and fraud. The list goes on, and hon. Members have referred to it.

Although citizens can reap the benefits of globalisation, terrorists and organised criminal gangs are also exploiting its tools to carry out ever more lethal operations. The internet is transforming lives for the better, but it is also a recruiting ground for terrorists and a hiding place for child sex offenders. Global financial markets and the free flow of capital are, of course, vital to increasing prosperity, but finance is also at the heart of terrorism and crime. That point was made by the right hon. Member for Suffolk, Coastal. Terrorists and criminals can exploit the global financial system to move money more easily and hide funds in phoney assets.

The Government fundamentally respect national boundaries and borders, but it is clear that criminals and terrorists do not. That is why EU co-operation at this level is so vital. It is only by working with our European partners that we can better combat organised crime, terrorism and illegal immigration, that we can bring criminals to justice and that we can ensure rights and legal certainty for all EU citizens. The European arrest warrant helps in that regard. Exchanging criminal records, which is a new measure, will help to ensure that offenders are not given unduly lenient sentences because the courts did not know of a previous conviction. EU co-operation through Eurojust and Europol is helping to break online child sex abuse networks and human trafficking rings, as my hon. Friend the Member for Linlithgow and East Falkirk said.

Of course, the Opposition see this new framework of action and co-operation as a threat. We see the EU as a way to make Britain stronger and more secure. A lack of co-ordinated action is the threat to the United Kingdom, rather than some phoney threat resulting from a belief in a conspiracy to destroy the nation state—an argument that exercised many Conservative Members.

The UK has always been clear that EU co-operation must be in our national interest. That is why in each and every instance—on new proposals on JHA, on amending measures, on transitional measures and on Schengen-building measures—we negotiated the relevant opt-out and opt-in, and we did so in our national interest. We have ensured the right to choose across the board whether to participate in this co-operation. The Home Secretary has alluded to the fact that the Lisbon treaty is the next step in JHA—the Foreign Secretary has also spoken about that. By moving to a system where qualified majority voting and co-decision are the norm, the treaty will unblock decision making, which is crucial.

Opposition Members claimed that the Bill and this treaty will create a Napoleonic legal system in the UK. That is surely a new entry in the hierarchy of hysteria in Conservative Euroscepticism, because the treaty does nothing of the sort. The Conservative approach would not only prevent the ratification of the treaty; it would make it impossible in principle to participate in any of the 82 measures in pillar three post-ratification. Those matters include the following: combating serious crime; the European arrest warrant; action on racism and xenophobia; combating terrorism; and combating the sexual exploitation of children and child pornography.

These minimum penalties and minimum standards are in our national interest, and the Conservatives' approach this evening has been a triumph of the ideology of isolationism over what is in our national interests. I commend the Government motion to the House.

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Question put, That the amendment be made:—

The House divided: Ayes 167, Noes 360.

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Question accordingly negatived.

It being more than three and a half hours after the commencement of proceedings on the motion, Madam Deputy Speaker put forthwith the Main Question, pursuant to Order [this day] :—

The House divided: Ayes 360, Noes 167.

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Question accordingly agreed to.

Resolved,

That this House approves the Government's policy towards the Treaty of Lisbon in respect of provisions concerning the following matters: fighting cross-border crime; justice; policing; human trafficking; and asylum and migration policy.

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Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

On a point of order, Madam Deputy Speaker. The Clerk is about to read the Orders of the Day, so that the House can go into Committee. The Standing Order that governs that procedure is Standing Order No. 66, which reads:

"Whenever an order of the day is read for the House to resolve itself into a committee on a bill... the House shall thereupon resolve itself into such committee, unless notice of an instruction to such committee has been given, when such instruction shall be first disposed of".

I have to inform the House that notice has been given of such an instruction, in the form of motion 42 on today's Order Paper, which says:

"That it be an Instruction to the Committee on the European Union (Amendment) Bill that it have power to make provision in the Bill for the holding of a referendum on the United Kingdom's continued membership of the European Union."

That is a matter of great importance to my right hon. and hon. Friends, because it clarifies whether, in Committee, we could introduce new clauses on a referendum on whether we should be in or out of the European Union, and not just new clauses on a referendum on the treaty of Lisbon. Standing Order No. 66 is, on the face of it, unequivocal. It gives no discretion. It says "shall", not "may". It does not—

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Photo of Sylvia Heal Sylvia Heal Deputy Speaker

I remind the hon. Gentleman that it would be inappropriate for him to read out his remarks. His point has been made, as far as the Chair is concerned. I am grateful to him for giving notice of his point of order. I am certainly satisfied that the power given to the Speaker to select notices of instructions is unqualified. Mr. Speaker has not selected the motion for debate. In any case, the House must proceed as directed by the order passed yesterday.

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Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

Further to that point of order, Madam Deputy Speaker. In light of that ruling, is it Mr. Speaker's position that the motion that stands in the name of my right hon. and hon. Friends would be selectable if it were put on the Order Paper tomorrow?

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Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. May I remind the hon. Gentleman of the ruling that I just gave? Mr. Speaker's position is as I have just expressed it.

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Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. If this is pursuant to the point of order already raised, I have nothing further to say. A ruling has been given. Is it a separate point of order?

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Photo of Simon Hughes Simon Hughes Shadow Leader of the House of Commons, Party Chair, Liberal Democrats

It is a separate point of order in relation to yesterday's business and the business ahead for today. Yesterday, we voted to change our procedures, and that was done perfectly properly. Mr. Speaker selected some amendments and not others. Madam Deputy Speaker, will you tell the House whether the ruling that you just gave is a result of the decision that we took yesterday, or whether it is because of the Standing Orders, irrespective of yesterday?

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Photo of Sylvia Heal Sylvia Heal Deputy Speaker

The ruling that has been given is the one given on instructions by the Speaker. There is nothing further that I can add to that.

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