Unrevised

Members present

Baroness Quin (Chairman)

Lord Anderson of Swansea

Lord Blair of Boughton

Lord Boswell

Lord Dykes

Viscount Eccles

Lord Elystan-Morgan

Baroness Liddell of Coatdyke

Baroness O'Loan

_________________________

Examination of Witnesses

Rt Hon Theresa May MP, Home Secretary, Rt Hon Chris Grayling MP, Lord Chancellor and Secretary of State for Justice, Charlotte Spencer, Deputy Director, International Directorate, Ministry of Justice, and John Ward, Deputy Director EU & International Team, Legal Adviser’s Branch, Home Office

Q41 The Chairman: I welcome you to this evidence session. I do not think that I have chaired a meeting before with two Secretaries of State, so I hope I get the parliamentary etiquette right, but I gather that both of you are quite familiar with this process and indeed were giving evidence together to the Commons scrutiny committee earlier this week. I have an apology to make to you both: we do not have as many Members here as we had hoped. Just as luck would have it in Parliament, two or three of our Members are involved in the business of the House today—the legislation that is going through—so unfortunately they very much regret not being able to be here. It does not reflect a lack of interest on their part in this session.

As you know, the session is open to the public. A webcast of the session goes out live as an audio transmission and is subsequently accessible via the parliamentary website. A verbatim transcript will be taken of your evidence, and this too will be put on the parliamentary website. A few days after this session you will be sent a copy of the transcript to check for accuracy, and obviously we would be grateful for any corrections that you might have as quickly as possible. If after the session either of you wishes to clarify or amplify any points or make any additional points available to us, you are very welcome to submit these. For the record, would you like to introduce yourselves and your colleagues and officials?

Rt Hon Theresa May MP: Thank you, Baroness Quin. I introduce John Ward, who is accompanying me today and who is the head of the JHA team in the Home Office Legal Adviser’s Branch. I am happy to make a few opening remarks if you would like me to at this stage, or simply have the introductions.

The Chairman: If you wish to make just a few brief remarks, please do so, but obviously we have quite a lot of questions that we are hoping to ask you.

Rt Hon Theresa May MP: First, I apologise for the lateness of our written evidence. We were not able to give evidence to the Committee in person in December, as had originally been intended. That unfortunate delay was because we were considering some very complex issues and felt that it would not be helpful to give evidence until we had a confirmed position. I am happy to outline briefly the position that the Government have come to regarding recent judgments by the European Court of Justice and their impact on the JHA opt-in, if that would be helpful in setting a background for the Committee prior to the questions.

The Chairman: Yes indeed.

Rt Hon Theresa May MP: We think that the JHA opt-in is very important to us. It ensures that we take part in legislation only when we choose to and helps to protect our national sovereignty in the sensitive areas that JHA covers—obviously issues such as policing, criminal law and asylum. So we want to protect the opt-in from any attempts to weaken it, and indeed our joint letter of 3 June to Lord Boswell set that out.

Turning to the recent case law, what strikes me is that the ECJ appears to be approaching disagreements about the scope of the opt-in by classing certain JHA provisions as non-JHA content falling under a different policy aim. The recent Philippines case is a clear example of this; the court decided that the readmission provisions were part of, not incidental to, the development co-operation aim of the agreement. That is an interesting new development and, from our point of view, a concerning one. We would have expected the court in that case to consider the readmission provision as JHA matters but possibly as incidental to the overall policy aim, which would have allowed it to rule on our arguments about the status of incidental JHA content. Instead, of course, the court was saying that they do not constitute JHA content at all, and that a legal basis for Title V of the Treaty on the Functioning of the European Union is unnecessary. It is important to look at the context of the judgment and exactly what the court was and was not saying. The key thing for us is that the Philippines judgement focused on the fact that the agreement promoted the overall aim of development co-operation, and we do not consider that the judgment can be applied more widely to other agreements with third countries where there is no overarching development co-operation aim. That means that for other types of third-country agreements we will continue to assert the opt-in to JHA content, and will seek the citation of relevant Title V legal bases, as we set out in our letter of 3 June. Even where an agreement promotes development co-operation, we believe that the opt-in could also apply to agreements that have more extensive JHA content than the Philippines agreement did.

One final point: it is important to note that the court in this case conspicuously failed to deal with the application of Protocol 21, despite noting the Council’s submissions on this point. I suspect that the court may be avoiding the issue, because at the very least some of its members consider that Protocol 21 is not an exception but a fundamental part of the EU’s founding principles. In short, we as a Government believe that recent judgments, of which the Philippines is the most important, do not require a change to the Government’s opt-in policy outside the area of development co-operation agreements.

The Chairman: Thank you. We shall be picking up some of those points in the course of our questioning. Justice Secretary, would you like to add anything at this point?

Rt Hon Chris Grayling MP: First, I introduce Charlotte Spencer, who is deputy director in my international directorate responsible for this area. I echo the Home Secretary’s apology to the Committee. This is an enormously complicated area. The recent decision by the court has caused a lot of legal discussion within the Government, and we thought it was right and proper to answer fully the questions that you raised. However, I apologise for the delay. Both the Home Secretary and I think that is very important that we retain control over these matters. The Protocol was there for a purpose and we are very determined to defend it. There is no doubt in my mind that some are looking at alternative routes to dilute that Protocol and our opt-outs, and to limit our room for manoeuvre, and it is the Government’s policy to continue to try to uphold the principles in that Protocol.

Q42 The Chairman: Thank you. Perhaps I could kick off the questioning by returning for a few minutes to the problems of delay that we have experienced in getting written evidence from you. We accept that there were some complex issues to deal with, but nonetheless the Philippines judgment was in June and we have still not had a definitive answer on that, so that has taken up to seven months, which is a long time. I have to say, too, that the Committee has experienced difficulties in getting timely responses to our correspondence with you about this inquiry. It was launched at the end of July and the call for evidence closed at the end of September, but despite efforts on our part, and despite a couple of letters from the EU Select Committee Chairman Lord Boswell, who I am very pleased to see with us, we still did not get any kind of confirmation of your willingness to give evidence or to attend here until 11 December. That does not seem satisfactory to us. I hope, but I would be grateful for your comments on this, that it does not contradict the commitment that the Government say they have to co-operate fully with this inquiry.

Rt Hon Chris Grayling MP: Of course not. I can only apologise again. We want to co-operate fully with this inquiry. The actual truth is that the legal position now is very uncertain. We think that the European Court of Justice has somewhat ducked the issue in the approach that it has taken. We have a very clear view of the purpose of the Protocol and the basis upon which it was signed. A number of issues have arisen in relation to this over a number of years; the Philippines judgment is only the most recent, but perhaps the most significant step that we have seen in recent times. The reality is that it seems to us that the European Court of justice is avoiding the issue. We could do with a definitive judgment so that we know where we stand, but at the moment we are not getting that.

Rt Hon Theresa May MP: I reiterate the apology. It is not our intention to suggest in any way that we do not want to contribute to the inquiry and fully participate in it, but these are complex issues and obviously we had to consider them very carefully in coming to the Government’s agreed position.

The Chairman: Why did it take so long to have any response on the Philippines judgment? Six or seven months seems to be a long time.

Rt Hon Theresa May MP: It is simply because we were spending quite a lot of time looking at the implications of the judgment and then getting full agreement from the Government so that we were able to come to the Committee today with the Government’s agreed position in relation to it.

Q43 Lord Anderson of Swansea: Secretaries of State, you have said that you now have a clear view of the implications and interpretation of the JHA Protocol, but it strikes me that you are effectively on your own. No one else appears to accept your interpretation and even now, in respect of the Philippines judgment, you are trying to distinguish that judgment to limit its application, which suggests that, head down, you will plough on losing case after case at the European Court. Does it not concern you that, for example, all the expert opinion we had in respect of your interpretation was entirely hostile—indeed, quite scathing. Some of the phrases I recall from it regarding your interpretation of “pursuant to” are, from one expert, “entirely unconvincing”, from another, “unconvincing in the extreme”, “not consistent with other language versions, particularly in German”, and so on. You admit in your evidence that no other member state shares your interpretation. You are in splendid, or otherwise, isolation. Are you aware of any serious lawyers in the UK, leaving aside the interpretation of other member states, and save your in-house lawyers, who agree with your interpretation?

Rt Hon Chris Grayling MP: The key issue is that we are clear about what we believe the intention of the UK was at the time of the signature of the Protocol. If we are in a position with the kind of approaches that we have seen, where we believe JHA content is material, that we do not have the right to opt in or opt out, there is a broader political issue. It has remained the view of this Government, whether or not others share that view, that we are right and that this was the purpose of the Protocol and what this country thought it had signed. This is why we need a definitive ECJ judgment, and why it is disappointing that the ECJ appears to some extent not to be facing up to the issue. If the Protocol itself does not deliver what this country thought it delivered, that is a political issue that, not this Government, because there is not enough time, but a future Government will have to address, in my view.

Lord Anderson of Swansea: You have honestly said that there are broader political issues. Does that suggest that it is not a legal interpretation but a political one, and the lawyers have taken second place?

Rt Hon Chris Grayling MP: No, it does not. It means that it is this Government’s legal interpretation. Nonetheless, the fact that we do not have a definitive judgment from the European Court of Justice leads us to a position where there is no clear-cut view on this. What I have said is that if we were to get such a view, and that view said that actually part of what this country thought it had signed up to did not apply, that would generate a political issue.

Lord Anderson of Swansea: You have a view but it is a unilateral one. Can you cite—apart from other member states, which are all against you—any lawyer who shares your interpretation?

Rt Hon Theresa May MP: It is up to the Government to take legal advice ourselves and look at the interpretation that we believe is the right one in relation to these matters. We have done that. We continue to believe that our interpretation is correct. In a sense, there are two issues that I would raise in relation to this matter. The first is what I see as a reasonableness test. If you said to any member of the public that the UK—

Lord Anderson of Swansea: This is the law, not public opinion.

Rt Hon Theresa May MP: Lord Anderson, if I may elaborate on my point, I appreciate your point that this is only a matter of legal interpretation. However, what both I and the Justice Secretary are saying is that the legal interpretation is as much as anything about what the intention of Protocol 21 was. It seems to me that the intention was that the UK should have the ability to decide whether to participate in justice and home affairs matters that were considered, discussed and determined after the Lisbon treaty. If you set that out to most people, they would assume that that meant that on any matter that related to justice and home affairs matters, that ability to determine whether to be part of that should rest with the UK.

There is another aspect of this, which is that it surely cannot be right that there be an interpretation of this that would allow the European Commission to game this issue—effectively to decide to use its interpretation of the measures in a way such that even if something was plainly a justice and home affairs matter, it could put something else into it and then say, “Well, we won’t give it a Title V legal base. Therefore the UK’s opt-in doesn’t apply”. That would not be appropriate. That is why, as the Justice Secretary has said, in a sense it is disappointing that the court failed to deal with the application of Protocol 21, which was a key issue in this matter when it was looking at the Philippines judgment.

Rt Hon Chris Grayling MP: What the Philippines judgment said in effect was that there was actually no JHA content at all, which is an interesting interpretation, given the nature of what was being dealt with. It avoided dealing with the issue by saying effectively that it is completely different. This Committee will decide whether it really thinks that there was a big difference.

Lord Anderson of Swansea: Would you seek the opinion of most people on statutory interpretation in this country? You are relying on what the Secretary of State has called the opinion of most people.

Rt Hon Chris Grayling MP: We are relying on the legal advice that the Government have received.

Lord Anderson of Swansea: And has that legal advice gone outside the two departments? Has there been any attempt to seek a wider view of the legal interpretation?

Rt Hon Theresa May MP: It is the settled view of the Government.

Lord Anderson of Swansea: That was not my question. Has the legal advice come only from the House, or has there been an attempt to seek a wider view from legal experts outside Whitehall?

John Ward: Lord Anderson, I do not think it is within my discretion to say exactly where the Government seek their legal advice. It is important to look at the structure of the Protocol in its entirety. Our view is that it is the language of competence and of issues of sovereignty, and it is not an exception. If the court had wanted to deal with these matters clearly, because it thought this was an easy issue in relation to legal base, and that is what “pursuant to” refers to, it could easily have done so, but it has not. The reality of what the court has done is that it has focused, not surprisingly, on post-adoption scenarios, because that is normally what it is faced with. But, of course, it also applies pre-adoption, and none of the analysis so far by the court has dealt with any of those issues. For example, there has been no proper analysis and no decisions by the court in relation to the matters of provisions of international agreements that do not bind the UK and their incidental nature. There has been no proper analysis of Article 3 and how it would work, and we disagree strongly with the views that have been expressed by the experts before this Committee, with all due respect to them. Because they take an approach on a legal base, they have to do violence to the language of Article 3 to ensure that the Protocol still has effect when the legal base changes. We disagree with that. We think that our approach does less violence to the language of the Protocol and therefore is more in accordance with its overall spirit and letter.

Lord Anderson of Swansea: You rely on your own interpretation, with respect, but will you agree, irrespective of what you now say is an ambiguity in the interpretation, that ultimately the interpretation will have to be made clearly, if it has not already been made by the court? If that interpretation by the court were clear, would the Government then accept it?

Rt Hon Chris Grayling MP: The Government would have to accept a ruling by the court, but that would generate a significant political issue that I suspect would form a significant part of any potential future renegotiation of the arrangements of our membership. It is a practical reality that there are occasions when the European institutions seek to change the title base in order to avoid our opt-in. In fact, at a meeting that I attended, the Commission explicitly said that it had changed the title base of a proposal, or chosen a title base, specifically to avoid a measure having geographic areas of the European Union where it did not apply. The reality is that that tactic is now used to try to bypass our opt-ins/opt-outs. If that continues, and if it is given legal force by the court, it will pose an interesting challenge to this country politically.

Lord Anderson of Swansea: With respect, you appear to be saying that you hope to have a pick-and-mix discretionary attitude to judgments of the court, just as you are hoping to have a pick-and-mix—

Rt Hon Chris Grayling MP: That is not what I said. I said that if the court effectively rules—

Lord Anderson of Swansea: Let me finish—a hit-or-miss discretionary attitude to judgments of the European Court of Human Rights.

Rt Hon Chris Grayling MP: It is not the European Court of Human Rights anyway, Lord Anderson, it is the European Court of Justice.

Lord Anderson of Swansea: I know. I am talking about both courts.

Rt Hon Chris Grayling MP: We not have a pick-and-mix attitude. The court has not ruled on this. In fact, the court explicitly did not rule on it; it chose to exclude all JHA in the Philippines judgment. It did not say that it was part-JHA or all JHA, so there was no JHA content at all. No doubt this Committee has studied the content of that case and the content of the measure discussed, and it will form its own decision about whether it believes that in reality there was JHA content.

Q44 Lord Elystan-Morgan: There are complex legal issues involved, but it seems to me, and I wonder if you would comment on this, that the issue essentially distils itself into the meaning of the words “pursuant to”. I think we can all be agreed on that. In relation to that, we have received a great deal of very pertinent evidence from some very distinguished experts. With your permission, Lord Chairman, I would like to read a few sentences from the evidence of Professor Cremona on 10 December, because I think it really distils the whole matter. This is what she said: “I think this approach”—in other words, the Government’s approach—“is misconceived, legally speaking. The legal basis is the power conferring basis of a measure. It is important precisely because of the principle of conferral, the EU only having powers that have been conferred on it by provision in the treaties, so the legal basis is the source of the EU’s power. ‘Adopted pursuant to Title V’ of Part 3 of the TFEU refers precisely, it seems to me, to the legal basis, to the source of the power pursuant to which the EU can act. So, in my view, ‘pursuant to’ cannot be a synonym for ‘relevant’ or ‘related to’.”

In addition to that, there is this point, is there not: those words appear not just in Protocol 21 but in 76 other places in the treaties, and in each one of those cases they are given the interpretation contrary to that which Her Majesty’s Government are clinging to. Is it a case of Her Majesty's Government being brave and independent or intransigent almost to the point of arrogance? I do not want to be insulting in any way at all, but the question that I want to ask is that I am sure many thinking people will be asking. Here are the Government at paragraph 26 of their case, saying: “The government believe that our interpretation of Protocol 21 is correct and reflects both the correct interpretation of the Protocol itself and the principle of legal validity”. In other words, you are saying, “This is our honest, intellectual analysis of the situation and that is the conclusion we have genuinely come to”. But is that the case? In other words, are you saying, “The whole world is wrong and we are right, that 27 other countries are wrong and we are right, and that the 76 other interpretations of those words ‘pursuant to’ are wrong, but we are right on this occasion?” Is there not a point reached where your situation is utterly indefensible? I say that with respect, but I think it is a question that has to be asked.

Rt Hon Chris Grayling MP: There may be a point at which our position is indefensible, and that will come if and when the European Court of Justice rules. With respect, Lord Elystan-Morgan, there are many different opinions over every issue in relation to the law. Sometimes this Government, sometimes others, find themselves in a minority of one in arguing a case. That does not mean that we are wrong. Ultimately, we can have an interesting academic debate about whether we are right or wrong, but ultimately we will not know for certain until the European Court of Justice rules, and at the moment it is not doing so.

Lord Elystan-Morgan: Does it impress you at all that the Law Society of England and Wales and the Law Society of Scotland are unanimously of the view that the European Court of Justice has made its position absolutely clear, and that it is a position that is antithetical to that taken by the Government?

Rt Hon Theresa May MP: We of course look at the interpretations and judgments that other people make, but it is the fact that the European Court of Justice in the Philippines judgment concentrated on the aspect of development co-operation and singularly failed to deal with the application of Protocol 21. With regard to the interpretation of “pursuant to”, we believe that “pursuant to” in Protocol 21 means that the Protocol applies to those provisions where the EU’s competence to negotiate them flows from Title V, and therefore it is not restricted to those cases where the legal basis for the judgment is Title V. I fully appreciate the points that members of the Committee are making about the legal interpretation, but the Justice Secretary and I raise the wider issues because one also needs to look at the intention of the Protocol when it was put in place, and the intention was clearly that it would be possible for the UK, on any matter that related to justice and home affairs matters, to be able to exercise the opt-in/opt-out decision.

Rt Hon Chris Grayling MP: If that is not the case, Lord Elystan-Morgan, the situation for this country is that it is then relatively easy for a Commissioner who chooses to do so to effectively bypass our opt-out, so that our opt-out becomes completely meaningless. You take an element of JHA and put it together in a combined measure that is 55% the other part and 45% a JHA measure, and at that point our opt-out becomes completely invalid. That was not, to my mind, the intention of those who signed the Protocol. In the first place, it is not what they agreed, it is not what our lawyers believe is the correct interpretation of “pursuant to”, and we stand by our story.

The Chairman: But in the Philippines case the court did rule on it in that it said that the JHA element was subsumed by the development co-operation objective of the agreement, so it did address the point—not in the way the Government would have liked, but it certainly did not ignore it.

Rt Hon Chris Grayling MP: Well, it ruled that it was all development matters.

Rt Hon Theresa May MP: That is the point. It did not explicitly deal with the application of Protocol 21; it effectively said that JHA content was not JHA content, so that is actually an arguable point. I think Mr Ward wanted to come in here.

John Ward: Paragraph 59, which is the concluding paragraph, is remarkably opaque as a conclusion, because it simply says that there are two elements to the test that needs to be applied: one is whether the provisions are sufficiently extensive to amount to distinct objectives; and, secondly, whether those distinct objectives are incidental or ancillary. If it had wanted to be absolutely clear that the readmission provisions fell into that latter category, it could have said so, but it did not. All that the concluding paragraph says is that the transport, the environment and the readmission provisions do not satisfy the test to make those provisions anything other than development co-operation. I think there is potentially quite a lot of agreement between us and other witnesses who have spoken to you that the reasoning in relation to readmission—that readmission automatically falls within development co-operation—is thin and perhaps could be questioned. What the court has not clearly stated is that the JHA provisions were incidental, and I think you have to read the concluding paragraph in the light of paragraph 58 where it is clear that the court is saying that the provisions are not extensive enough to amount to distinct objectives. That is in the light of the fact that there will be a new readmission agreement “very soon”.

Lord Elystan-Morgan: But there is a simpler explanation of the Philippines judgment, is there not? As I understand it, the court was saying, “In this case, we are not convinced that there is JHA content at all. Because there is no JHA content at all, the issue of a specific legal base simply does not arise”. To go back to what the Secretary of State for Justice has said, in the absence of a definitive judgment spelling out in so many words that particular matter, would the United Kingdom carry on in its own sweet way, contrary to the rest of the world? There is of course, is there not, a Turkish judgment that is imminent? An opinion has already been filed by the Advocate-General that suggests that it would be very much contrary to the UK Government’s attitude. Would you accept that, or would you still carry on, saying, “We are right and the ECJ is wrong?”

Rt Hon Chris Grayling MP: Unless and until we have a clear-cut legal judgment that says that Protocol 21 does not apply where a measure has only partial JHA content, as we talked about, unless we have a clear-cut decision saying that we are wrong, I do not expect the Government to change their policy. If we get a clear-cut decision saying that we are wrong, I think we have a political issue. It was clearly the view of the last Government, it is clearly the view of my party and it has been the collective view of this Government that we should have the right, which we negotiated and agreed to, to opt in to or opt out of JHA measures, and if we discover that we no longer have the right to do so, that will cause a significant political issue, I think.

Lord Elystan-Morgan: There is a Division, but I want to ask one more thing. So you would not accept the definitive judgment of the European Court of Justice?

Rt Hon Chris Grayling MP: That is not what I said; I said that we would obviously have to accept a judgment of the ECJ, but that would generate a political problem. The ECJ only implements European law.

The Chairman: Thank you. I realise that there is a Division in the Commons, so obviously this session will have to be suspended for 10 minutes. Did you want to come in quickly, Home Secretary, before that?

Rt Hon Theresa May MP: Simply to say that the judgment in Turkey, as I understand it, was actually out just before Christmas. Mr Ward may be able to comment on that if it is helpful to the Committee.

John Ward: We do not believe that that judgment takes us any further forward, again, because the court decided, as it did in the EEA/Swiss agreement, again, that there is no JHA content, so the court has again definitively decided that it does not want to deal squarely and head-on with the issue of the nature of incidental JHA content. It is avoiding the issue, in our view because it knows that ultimately our interpretation is going to be the right one.

Rt Hon Theresa May MP: If it is helpful to the Committee, Chairman, the Justice Secretary and I are willing to stay and let the Committee continue rather than you suspending it for 10 minutes.

The Chairman: Thank you very much. We certainly accept that offer. Lord Elystan-Morgan, did you want to make an additional point, or shall we go on to the next question?

Lord Elystan-Morgan: I may have my battery recharged by that time. I have asked my main question anyway.

Q45 Baroness O'Loan: Since 1990, the European Court of Justice has applied the same predominant purpose test to determine the correct legal base where a measure has more than one purpose. Since then, it really has not thought it necessary to change or update the test. In your evidence, you say that the normal legal base rules should not apply to JHA matters because they were established—I think Mr Ward was referring to this—before the Court of Justice has considered the full implications of Protocol 21. I have two questions. The first is that the court has considered five cases in the last three years where parties, including the UK, have argued that a Title V legal base should have been added. In none of them has the court changed its approach to determining the legal base: it has simply affirmed its usual approach. Could you tell us what grounds there are for suggesting that it might change its approach in the future? If the court were to take a different approach to determining whether a legal base is necessary for the Title V opt-out from Protocol 21, should it do so for other protocols to the EU treaties? If so, which?

Rt Hon Chris Grayling MP: My view is that there is a difference between the interpretation of an individual case as to whether there was a Title V legal base or not. The question that we are discussing today is whether the words “pursuant to” entitle us to take the view that we have, and unless and until we get such a view, which as I say generates a political discussion, I see no likelihood of the Government changing their position. I have to say that we have been surprised by some of the decisions of the ECJ as to when there has or has not been a Title V legal base, but the reality is that we continue to assert our position and our interpretation unless we get a definitive judgment from the ECJ that says that if it does not have a full Title V legal base applied to it, our opt-in does not apply.

The problem from the point of view of this country is that if it becomes easy to bury JHA measures in something that is not given a Title V legal base, we might as well never have had the opt-out in the first place. That begs a big question; this country decided that it did not want to be a full member of the JHA framework that has been created post-Lisbon, and there was a specific agreement, which was negotiated by the last Government, that we would have the freedom to decide what we wanted to be part of and what we did not want to be part of. If it becomes relatively easy—and we should not believe that it will not happen, because it does happen and it has happened—for those who do not want our opt-in or opt-out to apply, simply to bypass it, in our view that is a significant issue for this country. That significant issue may have to be resolved by the ECJ in a definitive ruling about this, but I do not see that we should roll over, surrender and say that it is okay when actually we believe that we are on good legal ground.

Baroness O'Loan: Just for the record—I have heard you make this statement several times now, and I definitely hear what you are saying—do you think there are any grounds to suggest that the court might change its approach in the future?

Rt Hon Chris Grayling MP: Who knows? The court has not really had to face up to this particular issue.

Rt Hon Theresa May MP: As I indicated earlier, the fact that the court actually failed to deal with the question of the application of Protocol 21 in its most recent decision suggests that there is at least some potential disagreement about the operation of Protocol 21, and the case may not be as clear from its point of view as might be being assumed from the judgments that it has made so far.

Rt Hon Chris Grayling MP: It has been pretty clear that it has not sought to address this issue directly. If it was a straightforward, “The UK’s wrong. We can deal with this”, it might have done so. That suggests that the issue is not clear-cut.

Baroness O'Loan: Is it then in the interpretation of what it means to say that the court has not dealt with the issue of Protocol 21 with the Title V “pursuant to” definitions? Is that the difference between the Government and our understanding, which is informed by legal experts and the other member states? I simply want to be very clear about this.

Rt Hon Chris Grayling MP: We do not believe that the issue has been properly addressed.

Rt Hon Theresa May MP: No, that is correct.

Lord Elystan-Morgan: Has it occurred to you that if the court were to take the sort of decision that you say would be a definitive decision saying that the UK is correct and everybody else is wrong, it would mean of necessity a reappraisal of the way in which the wording “pursuant to” has been interpreted in 76 other instruments?

Rt Hon Chris Grayling MP: That might be the case, but I do not think it would be a problem for the United Kingdom. My issue, as a Secretary of State for this Government, is looking after the interests of the United Kingdom.

Lord Elystan-Morgan: Does it occur to you that you are asking for rather a lot?

Rt Hon Chris Grayling MP: I am not asking for a political favour; I am asking for a legal judgment.

John Ward: If I may, Lord Elystan-Morgan, I think it is important that the words “pursuant to” need to be read in the context of Protocol 21. Protocol 21, we say, is different because of the particularly sensitive nature of justice and home affairs matters. But it is clear, looking at the context of the rest of the treaty, that it is fully recognised that justice and home affairs matters are difficult and sensitive, which helps to interpret Protocol 21. The Schengen Protocol, for example, has different rules for some justice and home affairs measures. New member states only gradually accede to the Schengen provisions when the older member states are satisfied. There is Protocol 20 on our borders. There is Protocol 22 for Denmark. There is Protocol 36, which made specific provision in relation to justice and home affairs. We think that is helpful in understanding that JHA is different, and that helps to interpret why “pursuant to” in this context should not be taken to mean “on the basis of a legal base”.

There are examples of where the court is showing a chink in its armour and is willing to look at this. In paragraph 65 of the EEA judgment, the court makes it clear that it is willing to look at the effects of the opt-in. That paragraph has not been subsequently followed, but that is the judgment of the court that still stands, and we think that is an indication that the court is, and will be, prepared to look at the wider purpose of what Protocol 21 is seeking to achieve.

I have touched on this, but it is also important to stress that the pre-adoption scenario has not properly been looked at by the court. As the Home Secretary and the Lord Chancellor have said, it should not be for the Commission to decide whether the Protocol applies any more than it should be for anybody else. Ultimately it is for the court to decide. A proposal does not have a legal base, strictly speaking, because it is not yet law; it is all political at that stage. The evidence given before this Committee—that if the legal base is changed, that is when the opt-in applies—requires violence to be done to the language of Article 3, because witness after witness before the Committee has said that it is very important not to deny the Protocol of its effect. Our view as to how you give best effect to the Protocol therefore differs, but we all agree that a purposive interpretation is the correct one.

Q46 Baroness O'Loan: I want to take you back perhaps to the specifics of the various protocols and to ask you very simply whether, in reaching this position and in considering the implications for this position, the United Kingdom Government have considered the possible impact of a change by the European court in this context on the other 76 protocols and on the interests of the United Kingdom in the application or interpretation of those protocols. What would the consequences be for us if the basic ground rules, as understood apparently by most people, change?

Rt Hon Theresa May MP: The point that we are trying to make here is that it is not possible to look at every single protocol in which the words “pursuant to” apply and consider that the interpretation is necessarily the same in every single case, because for each of these protocols there is a purpose to the protocol, and you have to look at the context of the protocol. That is the environment, if you like, in which the words “pursuant to” have been used in order to come to a correct interpretation of the meaning of that particular protocol, rather than saying that all protocols by definition will have the same interpretation across the board, because they all have a different purpose and are there for a particular reason. Protocol 21 is there to deliver a particular thing for the United Kingdom: a route and an ability to determine whether or not to opt in to these things. It is in that context that the words “pursuant to” in Protocol 21 should be considered.

Baroness O'Loan: I accept that, Home Secretary. I simply want to say to you that there may be an implication for the others, and I simply wanted to ask whether the interests of the United Kingdom in the other protocols might be affected by such a decision. The statement that each protocol has to be read in its own context and environment is a general one. I simply say that obviously it would be a very significant move if the court did that, and ask whether we have thought about it.

Rt Hon Chris Grayling MP: I am not sure I agree. If the court established that we were right, it would simply be clarifying that the UK’s agreement to Protocol 21 did allow the UK to opt out where JHA content was present. If that causes drafting implications for the rest of the treaty, that generates an issue for the member states to deal with, but I am first and foremost of the view that it is important to protect the interests of the United Kingdom in what was probably the most significant part of the negotiations for us on the Lisbon treaty.

Lord Elystan-Morgan: There are heavily divided views in this room, but the one thing that we all agree about is that it is about interpretation. In English law, the golden rule of interpretation, without exception, is that it should bear the ordinary grammatical meaning of the words, unless some absurdity is created—I think I paraphrase it if I do not correctly quote it. Do the in-house lawyers who advise the Ministers concerned by analogy adopt the same attitude to the interpretation of European statute?

John Ward: No, not exactly, Lord Elystan-Morgan, because that is not the approach taken by the European Court of Justice. Although ultimately the precise wording is important, the method of interpretation of European law goes beyond that and needs to give proper effect to the purpose of the treaties.

Lord Elystan-Morgan: I appreciate that you have a number of languages here, although Professor Cremona made the point that the Italian, French and German versions are all totally contrary to the Government’s attitude—but there we are, we are raking over old ground again.

The Chairman: It sounds as though you have asserted areas where you think there is JHA content and that you do not wish to be bound by it. In making those assertions, do you rely on particular provisions of the treaties, or are you just saying it as an assertion?

Rt Hon Theresa May MP: It is not simply an assertion. It will be a variety of things. Take, for example, the readmission agreements, which were one of the issues in the Philippines. That is a matter that is dealt with by the Justice and Home Affairs Council of the European Union; it is a matter that is accepted by all member states as a justice and home affairs matter. There are some practical interpretations as well as the more legal interpretations of the various aspects of the treaty, but it is recognised by everyone that matters such as that are justice and home affairs matters.

John Ward: Lord Chairman, if I may just amplify what the Home Secretary said; yes, we absolutely agree that the purpose must flow from the wording in the treaty, so for example the police and criminal justice provisions have a provision on co-operation between the police forces of different member states, and if you do not have something that actually originates out of that, it cannot be pursuant to Title V. That is not something that we subjectively assess; it must be related to the treaty provisions.

One point, if I may. There is not an enormous amount of difference between the Government and many other experts, because the Government have said that until we challenge a whole JHA measure—or, what we call a partial measure, which should have two legal bases—we will regard ourselves as bound by them. So the only issue relates to incidental JHA content. To clarify, we do not think that a measure is fatally flawed because it contains incidental JHA content that does not have a JHA legal base—that is why we do not think that it offends the principle of validity not to be bound by it—but we absolutely say that for the sake of clarity and legal certainty, the insertion of a JHA legal base would be correct and proper, and we would expect the court to say so. To that extent, we might be looking for the court to make a slight change in the way it approaches these matters, but we are not actually asking it to make a fundamental reassessment as to how it assesses the legal base.

Lord Dykes: Before I come on to the main substance of the question, perhaps I could ask, deliberately referring the question to the two Secretaries of State rather than embarrassing Mr Ward unnecessarily, would your anxiety to try to get the ECJ to reappraise the matters that you referred to earlier mean that that would be a substantive part of the Government’s negotiations with the EU on its future membership—once the Prime Minister has a chance for those negotiations after the election, presumably?

Rt Hon Chris Grayling MP: It would be a matter for the Prime Minister to decide what the nature of those renegotiations would be, and it would not be right for us as coalition Ministers to share Conservative Party strategy at an event like this. Suffice to say that it would surprise me, if we discovered that our opt-out of JHA matters was only partially valid in law, if that matter did not cause serious concerns for the leadership of my party and, potentially, if we are still in government, to a future Government.

Q47 Lord Dykes: May I then pass on to the important area of the duty of loyal co-operation? The courts’ case law has always suggested that the obligation of loyal co-operation in the negotiation and implementation of EU agreements requires a member state to comply with all the draft and final provisions of an agreement, including those which the UK believes to have incidental JHA content. If that is correct, on what basis do you say that the principle of loyal co-operation does not apply to the incidental JHA content of an agreement?

Rt Hon Theresa May MP: Obviously there is the duty of sincere co-operation. That requires member states to work together to implement the EU’s lawful objectives and decisions, but it is not intended to prevent a member state from exercising its lawful rights. We would say that that is what we would be doing if we were effectively saying that incidental JHA content was not binding on us unless we opted in to it.

Rt Hon Chris Grayling MP: It would be a nonsense if we were bound by treaty not to disagree with the majority of member states or with the institutions. No, we are absolutely certain that this does not impact on the duty of sincere co-operation.

Lord Dykes: Why do you think the Irish Government, or Irish Parliament, and Senate and Dáil did not agree with you at all?

Rt Hon Chris Grayling MP: That is for them to choose. They have the right to their view, and we have the right to our view.

Lord Dykes: But were you surprised about that?

Rt Hon Theresa May MP: Obviously we look at the decisions that others take and consider our position in the light of those. We remain of the view that we have set before the Committee. There are many issues where there will be different interpretations and different positions taken by Governments on certain matters. It is not the case that we necessarily have to say that simply because another Government have taken another interpretation, we change ours. We look, of course, at why they have made that interpretation, consider our position and the legal arguments and come to a government position. That is exactly what we have done.

Lord Dykes: But in practical substance that means that Ireland and all the other member states have more respect for the treaties than the British Government do.

Rt Hon Theresa May MP: No, I would argue that we are saying we have great respect for the treaty and for Protocol 21 of the treaty. We believe that Protocol 21 was inserted in the treaty with a particular purpose. We believe that it is the position of the UK Government that properly reflects that purpose and that, if others take a different position, the potential impact of that is that the purpose of Protocol 21 would be denied to the UK Government. I think, therefore, that we are fully respecting the treaty.

Lord Dykes: But the Secretary of State for Justice was referring to the inevitability of a political crisis if this is not satisfactorily resolved.

Rt Hon Chris Grayling MP: I did not use the word “crisis”. The simple position is that I would not have signed the Lisbon treaty in the first place, but we signed it. We as a nation negotiated Protocol 21, which gave us an opt-out of justice and home affairs measures. I do not believe that those who signed it intended to have a situation where those opt-outs could be bypassed by burying the JHA content in something that was a bit bigger and giving it a different title base. If we are put in a position where it is possible to completely negate Protocol 21 by simply merging JHA content into other measures, that would be a significant political issue for this country. It would certainly be a significant issue for the party that we serve, and I think it would provoke a political row. It would not cause a political crisis—those were not my words—but it would certainly lead to a lively debate and, I suspect, redouble demands for a new relationship with the European Union.

Lord Elystan-Morgan: In short, you will not accept the umpire’s decision in any event. You will overrule it on a political basis. That is really what it comes to.

Rt Hon Chris Grayling MP: The principle of a legal system is that sometimes the court reaches a decision that the Parliament and the Government disagree with. If they disagree with it, they have the opportunity to change the law. On a broader international basis it does not quite work in the same way, but if something happens in European law that we fundamentally disagree with, we have every right to seek to renegotiate with our fellow members the law upon which that decision was based.

Q48 Baroness Liddell of Coatdyke: Further to those points, when an EU agreement is given a Title V legal base, recitals to that agreement explain whether the UK and Ireland have opted in to the JHA provisions. Obviously that provides legal certainty for the states that are negotiating the agreement, and for individuals or companies whose rights might be affected by the JHA provisions whenever they come into force. By contrast, how would any individual company or other state be aware of a unilateral assertion by the UK that it is not bound by incidental JHA content in an EU agreement in the absence of a Title V legal base and a recital? In other words, all this is going to be happening without clarity for those who are going to be directly affected by it.

Rt Hon Theresa May MP: I do not think we are aware of any case in practice where this has been a real problem. We always seek to ensure that our position in relation to the relevant international agreement is clear, and that can be by agreeing recitals, as you have suggested, Baroness Liddell, or by laying unilateral statements setting out our position. That would happen whether or not a Title V legal base was cited. We are very aware, as you say, of the importance of ensuring that our position is clear, but we would always take steps to make that position clear and to provide that legal certainty as far as we can. As I say, we are not aware of any case where there has been a particular problem in relation to this.

Baroness Liddell of Coatdyke: But this could happen in future. How would you guarantee clarity?

Rt Hon Theresa May MP: I think by the action of the UK Government in seeking to have some form of words, be it a recital or a unilateral statement, that set out what our position was in relation to a particular matter.

John Ward: If I may add, in most of these contexts we are talking about mixed agreements. With mixed agreements, it is the EU and the member states that sign. If the UK does not opt in to JHA content as part of the EU by virtue of Protocol 21, we are still bound by it in our own right as a member state, assuming that we ratify the mixed agreement. So actually in most cases this issue simply never arises because we are bound, and the third country knows that we are bound, one way or another. This issue arises all the time in mixed agreements because there is permanently constructive ambiguity in such agreements as to whether it is the member states that are signing up in their own right or the EU signing up in its own right.

Another issue on legal certainty is pre-adoption opt-ins. In that case, of course, there is no actual EU law, because it is a pre-adoption opt-in, so there is no uncertainty. As for post-adoption, the issue is ancillary content and, as I have said, in mixed agreements in that respect there is no uncertainty anyway—we are still bound.

The Chairman: This is something that Baroness Liddell was going to raise. It has largely been dealt with by the Secretary of State for Justice, but I would like to try to get a bit more information. I was struck by what you said about the Commission trying to circumvent Protocol 21 and, if you like, “legal-base shopping” in order to try to find a solution that suited it. I have to say that all our previous witnesses denied that there was any evidence of that. I just wondered whether you would be able to supply some.

Rt Hon Chris Grayling MP: Let me give you a very specific example. The proposal brought forward by the Commission for a measure that introduced common criminal penalties for fraud against EU institutions should, in the view of the Council legal service and most member states, have been brought forward on a Title V legal base, and indeed now has been. The Commission brought it forward on a different legal base, and the previous Commissioner expressly said at a Council meeting said that she had done so because she wanted to ensure that there were no geographic areas of the EU where the measure did not apply.

The Chairman: Okay. Now we have that information, and obviously we will consider it. Thank you.

Baroness Liddell of Coatdyke: It is quite a serious allegation that the Commission would actively seek to undermine the rights of the UK. It would be quite interesting to see some chapter and verse as to when, and in what context, that happened.

Rt Hon Chris Grayling MP: I am sure we can do that. It is of course a new Commission; this took place about a year ago under the old Commission. It would be on the record that there was a disagreement between the Council legal service and the Commission legal service over the legal base. The Council effectively said that the Commission was acting in a way that was not legally correct. The Commission disagreed, but the Commissioner expressly said that in her remarks to the Council.

The Chairman: And is that being resolved in the court?

Rt Hon Chris Grayling MP: The Commission backed down and the legal base has now changed.

Rt Hon Theresa May MP: If it would be helpful, Chairman, we could write with some examples of this. There is also the example, I understand, of the EU/Swiss agreement, which was originally a Title V legal base, and the UK and Ireland chose not to opt in to it. I understand that the Swiss were concerned about our non-participation, and the decision was withdrawn and later re-proposed without a Title V legal base, quite possibly in order to circumvent the opt-in that we had. There are a number, albeit a small number, of examples where we believe the legal base has been used not in a very clear, strict legal interpretation of what the legal base should be but as a means of ensuring the coverage of the measure.

The Chairman: How did we react in that particular case?

Rt Hon Chris Grayling MP: On the EU/Swiss agreement, we went to the court and lost.

The Chairman: Lost on the basis of—

Rt Hon Chris Grayling MP: I cannot remember, but we can write to the Committee. This was some time ago when I was at the Department for Work and Pensions.

John Ward: We lost on the basis that this was all Article 48 rather than involving Article 79, so it was a matter of social policy rather than immigration policy, according to the court. Another example which this Committee is of course familiar with is psychoactive substances. A recent opinion was issued by the Committee under the distinguished chairmanship of Lord Hannay, and indeed by the Committee in the other place, in relation to that measure, which was proposed by the Commission under the internal market article—Article 114—despite the fact that everyone thinks this is really either public health or JHA, and there are a considerable number of member states that share our concerns about that. That is still ongoing in Council—another example.

The Chairman: Are you saying, therefore, that the court also sought to subvert our reliance on Protocol 21 in the judgment?

Rt Hon Chris Grayling MP: What we have said is that the court has failed to address the issue so far. Where the issue has come up, the court has avoided it rather than facing up to the fact that, one way or the other, this is lawful or unlawful.

Q49 Baroness O'Loan: I fear I must take you back to those contentious cases. In those cases on Title V, the United Kingdom failed to convince the court that social security obligations in the EEA, Switzerland and Turkey agreements should be founded on a Title V legal base. Then, of course, we could have opted out. In the Philippines and road traffic offence cases we had to persuade the Council to insert a Title V legal base, but the Commission got those quashed by the court. In paragraph 38 of your written evidence to this Committee, you wrote that, “These judgments do not have a significant impact on the Government’s opt-in policy”. That seems a slightly curious statement. In what way do those judgments have anything other than a significant impact on your policy?

Rt Hon Chris Grayling MP: As I said earlier, we think that the court is avoiding the issue. In the case of the Philippines judgment, where the debate could have been over whether or not there was JHA content and whether Protocol 21 applied, it did not matter because it all turned out to be something else. That is effectively what has happened so far, and clearly it has happened in the EU/Swiss situation as well; the court has avoided the issue.

Rt Hon Theresa May MP: Yes, in none of the decisions on Turkey, the Philippines, road safety, Swiss social security and conditional access did the court rule on whether JHA content alone could trigger the opt-in or whether incidental JHA content requires a JHA legal base. It has singularly so far avoided addressing what we feel is the fundamental issue of the correct interpretation of Protocol 21.

Baroness Liddell of Coatdyke: What reason do you think it would have for deliberately dodging the issue, as the Justice Secretary puts it? You could have argued that it was overly restrictive, but why use the phrase “dodging the issue”? What is the motivation for the court to dodge it?

Rt Hon Chris Grayling MP: Whether or not that is the right phrase, the court has simply not addressed it.

Rt Hon Theresa May MP: As I said earlier, it may very well be that there is some difference of opinion and that some members of the court actually believe that Protocol 21 is not an exception but is actually part of the founding principles. I am not party to their decisions or why they have come to this decision, but the fact that they have not addressed this Protocol 21 issue suggests to me that there may be some discussion, or they feel there is an arguable point, about the correct interpretation of Protocol 21.

Lord Dykes: Would that not have been more valid before Lisbon concluded the conjoined creation of the TFEU and the TEU? That might have been applicable in the past as the EU was developing, but certainly with Lisbon that would not be the case, would it?

Rt Hon Chris Grayling MP: It might well be. Lisbon is a very broad and often very loosely worded treaty, and it offers enormous scope to those who wish to pursue an agenda to find a route to pursue that agenda.

Q50 Lord Dykes: In conducting this very thorough inquiry we have had lots of evidence given by a wide range of different people. At the beginning, not being a lawyer myself, I innocently expected some of them to agree with the government line, but it has been astonishing that that has not been so. All our previous witnesses thought that the ECJ’s case law on the scope of Title V has reached a point where it will not be reversed by further case law. Your evidence now and in your written documents is to the contrary; you say, “We should continue to make our JHA case in order to avoid undermining Protocol 21.” How can you say that, given the practicalities on the way the Union functions, and what do you expect to achieve from future litigation on these matters?

Rt Hon Chris Grayling MP: It seems to me that the important thing is to do the right thing, and we believe that we are doing the right thing.

Rt Hon Theresa May MP: It also comes back to the response that we gave earlier: we do not actually believe that the court—for example, in the most recent Philippines judgment—has addressed this fundamental issue of Protocol 21, despite the fact that there were submissions on it. It is that application of Protocol 21 that is most significant. If we feel that the court has not addressed the point at the core, the heart, of this issue, it is entirely reasonable for the Government to say that we continue to believe that our interpretation of the Protocol is correct.

Lord Dykes: How much have the three social security cases cost the Government so far to litigate?

Rt Hon Theresa May MP: I do not have that figure to hand. I do not know if we would be able to provide any information in writing.

Lord Dykes: Could you let us have it in writing?

Rt Hon Theresa May MP: Yes.

Lord Dykes: One of our witnesses earlier on thought that an inter-institutional agreement on the scope of Title V would have more chance of protecting the UK’s opt-in rights, rather than further expensive step-by-step litigation going on too long. Is this something that the Government might consider?

Rt Hon Chris Grayling MP: An agreement between the Council and the Commission, you mean? If such an option were available, I am sure we would look at it.

Lord Dykes: You confirm that you would definitely accept that.

Rt Hon Theresa May MP: I think you said, Lord Dykes, that that had been suggested by one of the witnesses to this Committee in evidence that they had given. I think we would want to look at the context in which they said that and consider whether that was indeed a possible option.

Lord Dykes: It might be more practical.

Rt Hon Chris Grayling MP: It might be that we end up in a position where this can be addressed only by reclarification of the treaties, I do not know. At the moment, the court has not ruled definitively, and this is the key point. If the court says, “No, the scope of Protocol 21 is limited, and in all these cases the Commission has the power to pass through JHA content and broader measures and the UK has no right to exercise an opt-in or an opt-out”, I suspect that will be a matter that a future Government take very seriously and seek to remedy in a future amendment to the treaties.

Lord Dykes: And what do you mean exactly by “reclarification of the treaty”?

Rt Hon Chris Grayling MP: This goes back to the fundamental point raised by Baroness Liddell: have there been practical examples of people trying to bypass the UK’s opt-out? The answer in my view is yes. I do not believe that that is acceptable and it is something that we will have to address.

The Chairman: What tangible benefits has the approach that you have taken brought you so far?

Rt Hon Chris Grayling MP: What is your definition of “tangible benefits”, Baroness Quin?

The Chairman: Tangible benefits to the UK in terms of beneficial legislation.

Rt Hon Chris Grayling MP: The simple answer to that, surely, is that it is our view that the UK signed up to a particular safeguard to our laws, and we seek to continue to defend that safeguard. It seems to me that that is what the Government would be expected to do, which is to act in what we believe is the UK’s national interest. If we establish that what we think is our safeguard is no longer valid, the focus will shift elsewhere, but unless and until the court rules that we are wrong on this, surely it is right and proper that we continue to fight on behalf of the UK’s national interest.

The Chairman: So it is actually a matter of principle rather than something that has provoked practical problems or produced practical benefits?

Rt Hon Theresa May MP: The legal base in the example of the PIF Directive which the Justice Secretary cited earlier was changed, so we have seen a change taking place as a result of arguments that have been put forward in relation to this.

Q51 Lord Blair of Boughton: Home Secretary, I am asking the last question. It seemed to me, as I have had the opportunity to ask the Home Secretary two questions in two separate meetings in one afternoon, that I ought to give you as much space between them as possible.

It is obvious that for any multilateral framework such as the EU to operate within the rule of law, its members have to play by the same rules. We have a lot of sympathy with your concern to protect the UK’s opt-in rights but the evidence that we have received, as you have heard, has led us to have less sympathy for the way you are going about it. I have read your letters, statements and evidence very carefully. It is not nearly as clearly argued as you have argued today and does not have as many clear arguments and examples as you have given today. Is it not the time to accept the reality of the weight of opinion and case law against you—not even the Irish Government are supporting your full view—and go about unilaterally asserting the UK’s opt-in rights with a bit more evidence in written material than you have so far provided?

Rt Hon Theresa May MP: Certainly we are happy to provide some more written evidence to this Committee and we will do so, particularly on the cases where we think there has been this—I use the term “gaming”—and where the interpretation of “legal basis” has been used with an intent in relation to the UK’s opt-in and opt-out. In your question, Lord Blair, you said that case law was clearly against us. As you will have heard, part of our argument is that actually, from what we have seen from the European Court of Justice, it has not addressed this Protocol 21 issue, which suggests to us that there is no definitive position there that has resolved once and for all this question about the correct interpretation of Protocol 21.

Lord Blair of Boughton: I think I would agree with you, Home Secretary, except for this: that the overwhelming case law seems to be against you. I am not seeing enunciated as clearly in the written submissions as you have done today that what you are arguing for is an absence of case law. That the court has not addressed the issue that the United Kingdom Government want it to address—I think I share this with my Committee colleagues—did not come through nearly as clearly before you appeared at the very end of our evidence-giving sessions.

Q52 Lord Boswell of Aynho: You will appreciate, Home and Justice Secretaries, that I have not taken an expert view on this and I have not heard most of the evidence, but I thought I should be here this afternoon. Could I perhaps put two questions to you rather as a lay person in this? The first is, as it were, to probe the motivation of the other side of this argument. In your view, is this simply a method of confining the application of the JHA Protocol and minimising it or, to put it another way, extending the remit of the ECJ to the maximum possible level? Why are we being pushed into a corner on this? The second question is: is there any realistic possibility of, in effect, forcing the ECJ to come to an opinion that would sort this matter out definitively in law? I appreciate from what you have said in your evidence that it would not sort it out definitively in politics, but at least it would define the grounds on which this argument is being taken. I think you would understand that for a lay person this is an extraordinarily complicated area; it is not one that leaps off the page at people. So I would like to ask simply, first, whether there is any argument on the other side other than trying to minimise the effect of our hard-won change in protocol, and whether there is any realistic possibility of forcing the ECJ up to the plate to say what the legal position is in a definitive way, which could then at least shift the argument to another area.

Rt Hon Theresa May MP: On the first point that you have raised, Lord Boswell, I certainly would not want to suggest that every single person who has given evidence to your Committee has given their interpretation because of a particular desire in relation to the UK’s position on opt-in; obviously there are some eminent lawyers who have given their legal opinion. But certainly one of our concerns, and as we have cited in one or two examples which we are happy to write to the Committee about, I do feel that the danger with this question of the interpretation is precisely that it can be seen as an opportunity to restrict the ability of the UK to exercise its opt-in or opt-out. I and the Government do not think that that was the intention of Protocol 21 as it was drafted—the intention was in fact to give us that freedom of decision—and it does look as if this legal interpretation can be used to try to restrict the freedom that the treaty gave us.

With regard to the question of the European Court of Justice, I do not really feel able to say yea or nay to your question because I think we had all felt that in some of the judgments that it has made so far it would have done precisely what we have been talking about in being definitive about Protocol 21. It has not been. As I said earlier, my only surmise about that is that this may be because the court itself has some doubts or disagreements about it, or at least thinks that there is an arguable position here.

The Chairman: Thank you very much indeed for giving evidence to us today. As Lord Blair says, we certainly looked hard for evidence from various quarters before asking you here today. You have certainly defended the Government’s position here today. Obviously we will look at all the information that is before us before compiling our report, but we are very grateful to both of you for coming here today.