Unrevised transcript of evidence taken before The Select Committee on European Union Justice, Institutions and Consumer Protection (Sub-Committee E) Home Affairs, Health and Education (Sub-Committee F) Inquiry on THE UK’S 2014 OPT-OUT DECISION (PROTOCOL 36) – FOLLOW-UP Evidence Session No. 1 Heard in Public Questions 1 - 17 WEDNESDAY 9 OCTOBER 2013 1.40 pm Witnesses: Rt Hon Theresa May MP and Rt Hon Chris Grayling MP USE OF THE TRANSCRIPT 1. This is an uncorrected transcript of evidence taken in public and webcast on www.parliamentlive.tv. 2. Any public use of, or reference to, the contents should make clear that neither Members nor witnesses have had the opportunity to correct the record. If in doubt as to the propriety of using the transcript, please contact the Clerk of the Committee. 3. Members and witnesses are asked to send corrections to the Clerk of the Committee within 7 days of receipt. 1 Members present Baroness Corston (Chairman) Lord Anderson of Swansea Lord Boswell of Aynho Lord Dykes Baroness Eccles of Moulton Viscount Eccles Lord Elystan-Morgan Lord Faulkner of Worcester Lord Hannay of Chiswick Lord Morris of Handsworth Baroness O’Loan Lord Rowlands Lord Sharkey Earl of Stair Lord Stoneham of Droxford Lord Tomlinson Lord Wasserman ________________ Examination of Witnesses Rt Hon Theresa May MP, Home Secretary, Home Office, and Rt Hon Chris Grayling MP, Lord Chancellor and Secretary of State for Justice, Ministry of Justice Q1 The Chairman: I would like to extend a welcome to everyone present to this joint meeting of Sub-Committees E and F of the European Union Committee of the House of Lords. It is a great pleasure to welcome as our witnesses the Home Secretary and the Lord Chancellor and Secretary of State for Justice, who have of course given generously to us of their time in the past. I am sure it is common knowledge, but I want to point out that we are supplementing our earlier inquiry into the Protocol 36 opt-out in light of the debates in both Houses of Parliament in the summer and the Government’s subsequent notification of their exercise of the block opt-out. We aim to produce our supplementary report by the end of this month. As is obvious, this session is open to the public. A webcast of the session goes out live, there is an audio transmission, and it is subsequently accessible via the parliamentary website. I am sure I do not need to say this for the benefit of our witnesses, but for those 2 who may be listening or who are not aware of this, there will be a verbatim transcript of the evidence. It will be put on the parliamentary website, and a few days after this session the witnesses will be sent a copy of the transcript to check it for accuracy. We need to know of any corrections as quickly as possible, particularly by the end of this week, simply because of our very tight timescale to respond. It seems to me pretty pointless to ask the normal question, which is to ask witnesses to introduce themselves, since there is probably absolutely no need. I will start by saying that it is common knowledge that there is disagreement between us about whether the Government have made a convincing case for triggering the block opt-out, but it would be helpful if you could explain how you defined “the national interest” in selecting the 35 measures which the UK will seek to rejoin and those it will not. Do you accept that it is not sufficient for the Government of the day to assess that something is or is not in the national interest, and that as such a categorisation should and must be supported by evidence? Chris Grayling MP: Shall I kick that one off? I accept that there are differences of opinion over this. We have had to form a judgment of what we believe is the right action for us to take. It is not an exact science, but the simplest way to explain the approach that we have taken is that the common thread in almost all the measures that we set out as the ones we believe it would be sensible for Britain to rejoin is that they are about the need to combat international crime, serious and organised crime and cross-border crime and the kind of tools that the Home Secretary and the police believe are important to protect the citizens of this country. The areas that we have chosen not to participate in are all to do with the issues that we discussed the last time we gave evidence before this Committee: the Europeanisation of justice, the creation of common sentencing, common approaches to managing justice. It is certainly our judgment—and I have to say it was the judgment of the last Government, 3 because the last Lord Chancellor of the last Government was more instrumental than anyone in ensuring that this opt-out was available to this country—that it is not the will of this country to see our very distinctive and world-leading justice system become part of a European single justice system. So where measures apply common penalties, common rules, common approaches—not only have the details set out in the existing measures resulted in this but there are issues resulting from the drafting of legislation that is not absolute: for example, handing over the European Court of Justice ultimately indefinite, permanent jurisdiction over those aspects of our justice system—we simply do not believe that they are appropriate for this country to pursue. As I said, that was the view of the last Government, and why they wanted the opt-out in place, and it is a view that this Government have also taken. That is the best way of explaining the difference between the two. You asked about evidence. That decision not to want to see our justice system Europeanised is not about whether the evidence is there one way or the other; it is evidence of principle, a belief about what is fundamentally important to this country and the things that we should not move away from. If you are looking for evidence, the measures that we have sought to opt back into—and we have set before Parliament the list that we believe we should collectively decide we should opt back into—are those where the law enforcement agencies more often than not have said to us, “The evidence from our work is that we should be part of them”. Mrs Theresa May MP: I would just reinforce that. As part of the process, we discussed with, took evidence from and listened to the assessments of a variety of organisations, particularly in my own area a number of policing organisations, to ascertain the issues that they felt were of practical benefit to them. It was the emphasis on that practical benefit of cross-border co-operation that very much drove the decision-taking. 4 Q2 Lord Hannay of Chiswick: I will just follow up from the Lord Chancellor’s point. You have answered very clearly that the driver of your decisions was a philosophical one and not one based on evidence. It is helpful to us to hear that, but how do you reconcile that with the rather long list of items in justice and home affairs that you have opted into since Lisbon, some of which do not fit the analysis that you have just given: for example, that relating to child trafficking? Chris Grayling MP: There are a number of areas. I qualified my remarks by saying that, generally speaking, there will always be individual areas that do not absolutely conform to the principle. Child trafficking is very clearly a deeply unpleasant cross-border crime, and the Government’s view has been that it is sensible to be part of a common framework on that. However, if you look at what I have said and the decisions that we have taken over the last 13 or 14 months since I became Lord Chancellor, I think you will see that all those have been consistent with the approach that I have set out today. I think it is the right approach for this country. You made the point about evidence. This is about standing up for what this country represents. It is about saying, in my view, that we have a strong, independent justice system that is on a par with anything that exists anywhere in the world and that we should nurture it, support it and continue to value it. I do not like the idea of us losing the ability to shape it in the future in the way in which we have shaped over hundreds of years. That is indeed a philosophical position. I do not think it is one that can be based on evidence one way or the other; it is just a point of principle and a belief that this is sacrosanct and we need to protect it. The evidence element comes in when you look at a particular cross-border law enforcement measure and ask whether the evidence actually suggests that this is something that we need to part of in the interests of our citizens, and that is what the Home Secretary has made the central part of her decision-making. 5 Lord Anderson of Swansea: Ministers, will you confirm that none of our 27 partner countries seem concerned in that way about the role of the Court of Justice, or that their national interest is in any way imperilled by the group of measures we are referring to? Chris Grayling MP: I can confirm that the Commission has just set out a series of proposals for the future of justice in Europe, and based on the conversations I have had with other Ministers I would say that those do not command universal support.