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EU: The Hague Programme — Justice and Home Affairs (EUC Report)

– in the House of Lords at 3:08 pm on 20th June 2005.

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Photo of Lord Wright of Richmond Lord Wright of Richmond Crossbench 3:08 pm, 20th June 2005

rose to move, That this House takes note of the report of the European Union Committee on The Hague Programme: a five year agenda for EU justice and home affairs (10th Report, Session 2004–05, HL Paper 84).

Photo of Lord Wright of Richmond Lord Wright of Richmond Crossbench

My Lords, it has been a privilege to have been a member of Sub-Committee F during the preparation of three of the four Select Committee reports concerned with EU justice and home affairs which we are due to debate today. I pay tribute to our Clerk, Tony Rawsthorne, and our legal adviser, Valsamis Mitsilegas, for the skill with which they have steered us through our work, and thank our specialist adviser, John Abbott, for his help in our inquiry into the EU's response to terrorism after Madrid.

I am glad that the noble Baroness, Lady Harris of Richmond, will speak today on the inquiry into Eurojust, and I congratulate her on the way in which she conducted that inquiry when chairing our sub-committee. I also look forward to the contribution from my noble and learned friend Lord Scott of Foscote, whose Sub-Committee E worked with my sub-committee in preparing our report on The Hague programme. It is on that report that I would first like to concentrate today.

As your Lordships will know, The Hague programme is a five-year programme of European Union action covering the whole field of justice and home affairs. The breadth of the programme's scope demonstrates the impressive increase in co-operation at EU level in an area where only 10 years ago such co-operation as existed was almost all on an intergovernmental basis.

For the past five years, there has been a major programme of work in the fields of immigration and asylum, police co-operation, and criminal and civil judicial co-operation, which formed the foundation of The Hague programme. Our inquiry concluded that The Hague programme was broadly on the right track. It places welcome emphasis on the need to respect the principles of subsidiarity and proportionality, and the legal traditions of member states. But it will be important that we continue to scrutinise carefully the future progress of The Hague programme to ensure that those principles are upheld. Our scrutiny concluded that there have been occasional lapses—for example, on drugs policy and crime prevention—where those principles have not been sufficiently respected.

The Hague programme also calls for a process of evaluating policies. Our inquiry strongly endorsed a thorough and transparent evaluation of existing policies before new initiatives are pursued. Many of the proposals in The Hague programme have been the subject of previous reports by the Select Committee. There is still talk of a European Border Guard, although we remain of the view, as I understand the Government do, that the case for a centrally managed multinational force has not been made. The concept of a common European asylum system remains valid, but the failure so far to adopt the Asylum Procedures Directive shows that there are still considerable difficulties in ensuring a high level of protection in accordance with international human rights and refugee law.

Finally, we underlined the need for better co-ordination between law enforcement authorities. It was clear to us that Europol has not yet fulfilled its potential. I hope that it can start to punch its weight now that a new director has been appointed, after a regrettable delay.

I am grateful for the Government's response to our report on The Hague programme, which shows a welcome measure of agreement between us. In commending our report to your Lordships, I hope that the Minister, when she winds up this debate, can give us the Government's view on the following additional points. First, how will the collapse of the constitutional treaty affect The Hague programme, which assumes ratification on the original timing? Secondly, how is the programme to be financed, given the very substantial increase of resources envisaged for the years between 2007 and 2013? Thirdly, what are the Government's priorities in this area for our presidency?

Finally, I turn to a point to which we have reverted in a number of Select Committee reports, even before my chairmanship of Sub-Committee F. Have the Government any intention of reviewing their facility to opt-out from immigration and asylum policy, as opposed to their opt-out on borders, which has led to some difficulties—for instance, our exclusion from the Border Management Agency that is now being set up in Warsaw?

I would now like to turn to the second report that I shall move today; namely, the EU's response to terrorism after Madrid. There were two main elements to our inquiry; that is, data exchange and EU structures for responding to terrorism. On the second, we attach importance to the principle that member states bear, and continue to bear, primary responsibility for counter-terrorism activities. But, having looked at the proliferation of committees and groups at EU level that are concerned with counter-terrorism, we were clear that there is a need for rationalisation and that this should be the primary and urgent responsibility of the Counter-terrorism Co-ordinator. We also concluded that more co-operation was required with other international agencies, especially Interpol, whose headquarters in Lyon we had the opportunity to visit.

On data exchange—I should tell the House that we tried to reach a consensus on pronunciation, which I think that I have just broken, on whether it is "data", "dayter" or "darter"—we regard the more effective sharing of information between law enforcement agencies as crucial to the counter-terrorism effort. The objective that law enforcement authorities should have access to information in another member state, on the same basis as the member state's own law enforcement authorities, is acceptable in principle. But it is very important that its implementation should be subject to adequate safeguards.

We were concerned about some of the proposals that the Luxembourg presidency have subsequently put forward, which seem to have totally inadequate provision for data protection. We are particularly concerned about the proposal to repeal Article 39 of the Schengen Implementing Convention, which provides that the exchange of information must be subject to a condition of compatibility with the national law of the states concerned. We also strongly oppose the abolition of the restriction on the scope of the decision to offences punishable by at least 12 months' imprisonment, which appears to ignore the very title of the framework decision, which refers to "serious offences including terrorist acts". I hope that the Minister will be able to tell the House how the Government propose to carry this forward in our presidency.

I regret that the Government's views on our report were received only on Thursday last week—one sitting day before this debate—even though our report was published on 23 March, nearly three months ago. But having had a brief opportunity to study the Government's response, I am glad to see that the Government also attach importance to better two-way co-operation between Interpol and Europol. I also welcome the hint that the Government might be open to the possibility of a data protection regime for the third pillar.

I have one personal comment on the reception which our reports have received, both in Brussels and from other capitals. Having now chaired Sub-Committee F through three inquiries, I have been heartened by the considerable respect which the work of the European Select Committee enjoys, both in the Commission and with other national parliaments. Given the persistent preoccupation with whether we are or are not at the heart of Europe, some of which will no doubt form part of tomorrow's wider debate, I find it encouraging that our scrutiny work is widely regarded as second to none throughout the European Union.

I look forward to hearing the Government's views on both of these reports and on the other two reports that are to be moved today. I beg to move.

Moved, That this House takes note of the report of the European Union Committee on The Hague Programme: a five year agenda for EU justice and home affairs (10th Report, Session 2004–05, HL Paper 84).—(Lord Wright of Richmond.)

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip 3:20 pm, 20th June 2005

My Lords, it is a great pleasure to follow my former colleague and successor, the noble Lord, Lord Wright of Richmond. I am pleased to have the opportunity to speak in this debate on the subject of Eurojust and the report produced by the Select Committee while I was chairman of Sub-Committee F. It is a pity that it has not proved possible to arrange an earlier debate, but at least we have managed to get it in before the first anniversary of the report's publication.

With the indulgence of noble Lords, before I begin I want to thank in particular three people for their help to the committee on this and many other inquiries. First, I thank our clerk, Tony Rawsthorne, whose tremendous help and support I have always valued immensely; secondly, our legal assistant, although sadly no longer with us in that capacity, Dr Valsamis Mitsilegas; and, finally, our specialist adviser and old friend of the committees, Professor Jörg Monar. I also thank all my colleagues on the committee who played a full and active part during the four years that I had the great privilege of chairing Sub-Committee F.

Eurojust is still a relatively new EU body and its work is not widely known, so it may be helpful first to explain in brief what it is and what it does. Eurojust was set up in 2002 to facilitate judicial co-operation in the EU. Each member state nominates a senior judge or prosecutor as its national member, and those 25 national members form the "college" of Eurojust. They operate full time, in an impressive headquarters in The Hague, which members of the sub-committee had the advantage of seeing when we visited Eurojust last year.

Since its establishment, the president of Eurojust, elected by the college, has been Mr Mike Kennedy, the UK national member who has made an outstanding contribution to establishing Eurojust and getting it accepted as a key player in tackling serious international crime. It is a tribute to the work he has done and the high regard in which he is held that his colleagues have recently re-elected him as president of the college. I and all my colleagues warmly congratulate him on his reappointment.

The role of Eurojust is to assist national authorities in investigating and prosecuting serious cross-border criminal cases. It does so by co-ordinating the activities of the national authorities and facilitating the collection of evidence. It therefore serves a very practical purpose. It is not primarily concerned with general policy on judicial co-operation, although it does convene strategic meetings on important casework topics such as terrorist activity and the use of controlled deliveries and covert surveillance in drugs trafficking cases. It is an operational body with the very practical task of facilitating the handling of complex cross-border criminal investigations and prosecutions involving several member states. This is a vital role and, in the committee's view, Eurojust meets a real and increasing need.

One of the biggest obstacles to pursuing international criminals across borders is coping with different national legal systems and different requirements for the conduct of investigations and the collection of evidence. A police officer or prosecutor in one member state cannot be expected to be familiar with all the procedural requirements in each of the others. This often leads to long delays in obtaining even quite straightforward evidence and even to the collapse of cases, which is in the interests of no one but the criminals. Within Eurojust, a national member can talk directly to his opposite number in order to unblock a particular problem. But more than that, in complex multilateral cases, Eurojust can convene case conferences of all the parties involved, which can short-circuit lengthy bilateral negotiations.

I am glad to say that since we published our report nearly a year ago, Eurojust seems to have continued to establish itself as the primary forum for practical judicial co-operation within the EU. A number of developments to which we drew attention in our report have now been successfully implemented: absorbing 10 new national members following enlargement, which was accomplished smoothly as a result of the preparatory work that Eurojust had undertaken; putting in place a formal agreement with Europol about the exchange of information and agreeing data protection rules—however the word is pronounced; and implementing a case management system.

According to Eurojust's latest annual report, the number of cases referred to it increased by 27 per cent in 2004, which is some indication of the growing confidence that national authorities have in the contribution it can make to their work. But there are still some member states, not including the UK I am glad to say, which do not make full use of Eurojust. Indeed, we were concerned to find in our inquiry that a number of member states had failed to implement important elements of the decision that set up Eurojust over six months after the relevant deadlines had expired. In July of last year, the Commission produced a report on the implementation of the decision and highlighted a raft of serious deficiencies on the part of member states. At the time the Government said that they would welcome a further report on the transposition of the decision by the new member states, and I would be interested to hear from the Minister whether this is in hand.

The one area where little progress seems to have been made is in relations with OLAF, the EU's anti-fraud agency. We drew attention in our report to the lack of co-operation between Eurojust and OLAF, to the detriment of effective action against fraud involving the resources of the European Union. Eurojust's report for 2004 records that OLAF forwarded to it only three cases in that year. Eurojust clearly regards this as unsatisfactory and I hope that OLAF will make renewed attempts to improve its relations with Eurojust and make greater use of the facilities it offers.

But this should not detract from the fact that the first three years of Eurojust's operation have been a good news story. As we said in our report, perhaps presciently as it turned out:

"It is . . . an example of the sort of effective practical co-operation that an EU agency can provide, which is sometimes lost sight of in more ideological debates, for example in the context of the Constitutional Treaty, about the future development of the EU".

It would be a great pity if, at a time of doubt and some disillusion about the future direction of the EU, we lost sight of the great practical contribution that a body like Eurojust can make to tackling genuinely cross-border problems in a practical and constructive way.

Photo of Lord Scott of Foscote Lord Scott of Foscote Crossbench 3:28 pm, 20th June 2005

My Lords, Sub-Committee E, which until recently I had the honour to chair, was responsible for part of The Hague programme report about which my noble friend Lord Wright of Richmond has spoken, and has sole responsibility for the OLAF report. So I want to devote most of my time to talking about the OLAF report with just a few remarks at the end about the part of The Hague programme report for which we were responsible.

Like my noble friend Lord Wright and the noble Baroness, Lady Harris, both of Richmond, I start by expressing my great sense of gratitude to the legal adviser to Sub-Committee E, Dr Christopher Kerse, without whose work, expertise and industry I suspect that none of the reports emanating from Sub-Committee E during my chairmanship would have been worth reading at all. A great debt is owed to him and I hope that the House recognises it, and I am sure it does.

The importance of OLAF is not in doubt. The organisation was created in 1999 with the remit to try to combat fraud against European Union funds. It is an investigative body. It has no prosecuting powers; it simply investigates. It attempts to recover any money it finds to be due or reports cases to prosecuting authorities in the member states for criminal proceedings to be taken.

Its investigations are either internal or external. Internal investigations are those where the suspected fraud is within an EU institution and external investigations are those where the suspected fraud is outside an EU institution but is directed at EU funds. For example, a VAT fraud or a fraud in claiming payments which are not due under the CAP scheme would be external frauds.

In the case of external frauds, OLAF has to carry out its investigations in liaison with the investigative or police authorities of the member state in question. That must be so because OLAF has no right of its own to summon people to appear before it and answer questions and so on. That has to be done through the domestic authorities. In the case of internal frauds, all those being investigated will be employees or officers of one kind or another of some institution of the EU and so that particular problem does not arise.

As I say, OLAF was created under a regulation in 1999 following the Eurostat crisis or—call it what one will scandal. I do not want to try to explain what it was—I am not even sure that I could—but it was that scandal which gave rise to these proposals.

I think I have misled your Lordships. OLAF was created in 1999 to succeed a previous institution called UCLAF because that body had been so dilatory in the handling of cases that there was a huge backlog. The Eurostat crisis occurred after OLAF had been created and led to proposals for the reform of OLAF, which prompted the inquiry and report now being debated by the House.

We thought the proposals were premature—and the Government, in their helpful response, agreed—for two reasons. First, a report from the Commission itself relating to OLAF and its activities was in preparation but had not yet been produced. When OLAF was created in 1999, one of the requirements was that after three years, in 2002, the Commission would produce a report about OLAF and its activities so that the European Parliament and the Council of Ministers could see how this newly created fraud investigating body had been progressing. The Commission duly produced the report in 2002 but it was rejected by either or both the Council of Ministers and the European Parliament, which said that they wanted more details of what OLAF had been doing.

So the Commission had to go back to the drawing board and try to do better. But when it produced its proposals for reforms to OLAF, the report was still in an incomplete form; the final report had not yet been produced. We thought, as did the Government, that it would be better to await the production of that report and then, in the light of its contents, to try to work out the areas in which OLAF should be reformed and make proposals accordingly.

The other reason why the proposals were premature was that the Court of Auditors was, at the time these proposals came forward, preparing a report on OLAF. That report, too, was thought to be imminent, but was not yet available, and it was considered odd that the Commission should be producing its proposals not yet knowing what the Court of Auditors was going to say and what, if any, recommendations it would make.

At the time we were carrying out our inquiry we were told that the Court of Auditors report was expected to be due in the autumn of last year—that is, in autumn 2004. So in our report, which was published in July last year, we formed the conclusion that I have mentioned. We said, "This report is premature. You should have waited for the other two expected reports to be available and then formed your views accordingly".

The Court of Auditors report expected in autumn last year has still not been produced. I am told that it is expected in autumn this year, but we shall have to see whether that turns out to be correct. The Commission's own report was produced in December last year and it was submitted to Sub-Committee E for consideration. It contained a great many valuable details about what OLAF had been doing in the three years. In fact, it was more than three years because the report covered the period up to June 2004.

It contained some very useful details about what OLAF had been doing since 1999. For example, it disclosed the total amounts involved in the investigations that OLAF had conducted over that period. The sums thought to be lost to European Union funds were in excess of €5.3 billion. It disclosed also that its efforts had achieved recoveries from miscreants in the order of €100 million, with some €17 million irrecoverable because of bankruptcies, insolvencies and so on.

It is thoroughly useful to take that kind of record into account when trying to form a view as to the success of OLAF in discharging its remit. But, of course, it was not taken into account when the proposals which are the subject of this report were formulated.

Action on the proposals seems to have gone into abeyance in any event. That may be because these reports were awaited. But the report with the wealth of detail—including the details I have mentioned—was available in December last year and, as far as we know, still no action has been taken by the Commission in finalising its proposals or in the Council of Ministers or the European Parliament in considering their content.

There has been no mention of this during the Luxembourg presidency, but it would be appropriate if the UK Government were to give this matter priority when they assume the presidency shortly. It is surely of very great importance that fraud against EU institutions should be the subject of proper, efficient investigative procedures.

That is necessary not only for the obvious financial implications but also for producing confidence on the part of the citizens of the European Union—from whom, in one way or another, the money the subject of fraudulent depredations comes—that the affairs of the European Union in protecting, properly spending and looking after their money are conducted as efficiently as practicable.

We suggest that the Government might give an indication of their attitude towards progress on the proposals for the reform of OLAF put forward by the Commission.

Perhaps I may now make a few remarks about the parts of The Hague programme which emanated from my sub-committee. I say "my sub-committee"; I should say "Sub-Committee E".

I do not share my noble friend Lord Wright's confidence that the Commission's proposals are sufficiently observant of the important principle of subsidiarity. The two areas of the programme we looked at were the proposals for measures in the criminal justice/criminal procedure field and in civil law and procedure. As to civil law and procedure, a number of proposals were put forward. When we considered them, it seemed to me and to the sub-committee that virtually all of them were open to serious objections on subsidiarity grounds.

The most obvious was the proposal, which has been named Rome II, to harmonise conflict of law procedures in the civil law field. Why it is necessary to harmonise this was not made clear. The Commission suggested that it was a kind of tidying-up, a kind of convenience. We wrote a report disagreeing very strongly with the notion of any harmonisation in this field. Broadly speaking, the Government, in their helpful report, agreed with that.

One should take note that the justification put forward for this proposed measure was an argument based on convenience. I suggest that convenience, often questionable but arguable, as a basis for harmonising measures requiring all member states to bring their laws together to correspond with one another in a particular area is never enough. There must be a stronger reason than questionable convenience for putting forward changes in the civil law/civil procedure area.

As to the criminal law and procedure area, I do not want to be rude, but it has become almost a mantra for the justification for proposals to be put forward that one is pursuing the policy of mutual recognition—that is, mutual recognition of the decrees and orders emanating from the courts of other member states. Their and our membership of the same union requires us to accord their orders respect and to follow them up. That is all very well, but it does not always fit well with the fundamental obligation of each member state to protect the essential rights of its own citizens and to try to ensure that if they are faced with criminal proceedings, the rights that they are entitled to expect are observed to as good a standard abroad in other member states as they would be able to expect here.

That particular requirement seems to me—if I may speak entirely for myself—to be not always observed in the way in which support is given by government to harmonising measures produced in this area. In particular, there is a very important Green Paper, which recently emanated from the Commission, on bail. The present position is, as your Lordships will know, that extradition without going into the merits—this is all a consequence of the principle of mutual recognition—can be imposed upon UK citizens so that they may be taken to a member state and tried on criminal charges there, with whatever incarceration for the period of the delay between extradition and trial that there may be.

The bail arrangements in a number of the states bear no resemblance to what our own citizens have become entitled to expect, and there is a crying out for some remedy. This is an area where standards across the European Union are formulated at a sufficiently high level to provide the rights to which we think our citizens are entitled. So I wonder whether the Government can give some assurances that during the UK presidency progress on the bail proposals will also be one of the priorities. If so, then a very great objection to some of the extradition proceedings, and to some of the mutual recognition orders that are made, will be met.

With those comments I commend to your Lordships the whole of The Hague programme, and particularly the part that my sub-committee was concerned with, and the OLAF report. I know that what is to follow when I sit down will be a government Statement—I cannot remember what the subject is, but that does not matter—but I would like to take one moment on a personal level to express my very great appreciation for the time that I have spent as a member of the European Union Select Committee and as Chairman of Sub-Committee E. That is something that only a few Law Lords and my colleagues get to do. It is hugely enriching of our life in this House and I am sad to say that it will soon come to an end, but I have very much appreciated it while I have been able to do it.