To ask Her Majesty’s Government when they expect to make a decision regarding Justice and Home Affairs opt-outs under Protocol 36 to the European Union treaties.

My Lords, the Government are carefully considering the block opt-out available to us under Protocol 36 to the treaties. On 15 October last year, the Home Secretary announced that the Government’s current thinking was to exercise the opt-out and then seek to rejoin measures that are in the national interest. Further information will be made available to Parliament in due course.

My Lords, will the Minister confirm that the Government have been carefully considering this matter for months and months and that the all-party European Union Select Committee unanimously said that the proposal would be a danger and a threat to national security and would undermine our fight against international crime? According to the leaked memo to the Daily Telegraph, it is a fight between his party and the other party in the coalition. They cannot make up their minds. Surely the question of national security and the fight against crime should rise above these party differences. Will he use all his influence to get the members of the Government to think again about this important issue?

My Lords, the passion of the noble Lord, Lord Foulkes, is explanation in itself of why the Government are taking such care and time to look at matters that he himself has acknowledged relate very much to national security and the national interest. That is precisely why the Government are taking their time in making these decisions.

My Lords, does the Minister recognise that the Government have already overrun the two-month period in which they are meant to respond to reports from your Lordships’ committees —in this case, the European Union Select Committee? If he does, can he say when they are going to respond? Will he perhaps reflect on the possibility that the national interest might be served best by following the advice given by the committee: namely, that there was no convincing case for triggering the opt-out at all?

I agree with both noble Lords that the European Union Committee’s report was, as one would expect, extremely thorough and thought-provoking: hence the fact that the Government are studying it very carefully. We have written to the noble Lord to beg for a little more time to produce a response. Perhaps I may therefore give him a response with which I am sure he is well familiar: the response will be coming shortly.

My Lords, in the event that the Government were to exercise the opt-out, what improvements to the European arrest warrant system in particular would in their view be desirable in order to opt back in, at least to the arrangements for combating serious cross-border crime?

My Lords, that is a good example of why we are giving careful thought to this array of measures. The European arrest warrant has played an important role in speeding up extradition arrangements between countries and represents the type of practical co-operation that we should all support. However, despite its success, the use of the warrant for trivial offences has damaged its reputation with many, and lengthy pre-trial detentions have also caused problems in some cases. It is those areas of proportionality and practicality in using the warrant that we are trying to address, both in discussions with our European partners and in looking at the process as it affects our own dealings with this warrant.

My Lords, does the Minister accept that it does not require what he calls “careful time” to consider the European arrest warrant? Criminals are not fools. If we opt out, they will go and live in Spain, the way they used to years ago, beyond the reach of British law. Given that there is much greater pressure in view of international terrorism, why does it take any time at all to consider this issue?

It takes time because it is part of a range of issues. Nobody is talking about jettisoning all these measures, but some of the proposals in the Protocol 36 decision were written when reference to the European Court of Justice was not in mind. There is a variety of technical reasons why careful study is warranted. I assure the House that the Government will continue, as they have done right through their period of office, to address opt-ins and opt-outs on the basis of national security and national interest. When we have our package to bring before the House, we will ask your Lordships to make decisions on that basis.

My Lords, opting out of Protocol 36 means, as we have heard, opting out of the European arrest warrant. Last week, the Government had to make a Statement significantly revising their figures for the number of criminals who have successfully been returned to the UK under the European arrest warrant agreement. The figures have been wrong for the last three years. Does the Minister believe that we will be more successful or less successful in bringing criminals to justice if we opt out?

Quite frankly, no. As I indicated in my answer to my noble friend Lord Marks, our assessment is that the European arrest warrant has many many benefits, which we want to profit from. However, in practice, in some places it has shown a lack of proportionality and in other places it has imposed on British citizens long periods of pre-trial detention. It is those matters that we are dealing with. This is not just a tick-box issue; it is a matter of carefully examining a range of proposals. We are greatly indebted to the Lords committee for its analysis, which will play an important part in the decisions that we make.

My Lords, if we do exercise the opt-out from the European arrest warrant, one consequence will be that we will have no extradition arrangements with a huge range of states, most of which have repealed the original extradition legislation. If the Government are contemplating an opt-out, are they currently in negotiation with those Governments to see whether their legislative programmes would enable the passing of legislation either to allow us to go it alone or to allow the lengthy period of negotiation that would be necessary to enter into another arrangement on an arrest warrant?

The noble Baroness puts forward one of the very real problems of a total opt-out: that we would be left with a whole series of bilateral negotiations and no guarantee of success. The more this question has unfolded, the more we see the wisdom of the Government’s considered discussion and thought about what to bring forward to both Houses and that it is fully justified.