European Scrutiny Committee

Oral evidence: 2014 Block opt-out decision: follow up, HC 919
Monday 12 January 2015

Ordered by the House of Commons to be published on 12 January 2014

Watch the meeting

Members present: Sir William Cash (Chair); James Clappison; Michael Connarty; Geraint Davies; Nia Griffith; Kelvin Hopkins; Jacob Rees-Mogg; Henry Smith

Questions [1-51]

Witnesses: Rt Hon Theresa May MP, Home Secretary, Rt Hon Chris Grayling MP, Justice Secretary, Peter Storr, International Director, Home Office, and Scott McPherson, Law, Rights and International Director, Ministry of Justice, gave evidence 

Q1   Chair: Welcome to this afternoon’s session. I wanted just to start by indicating the concerns that the Committee has over these matters, which have really prompted us to hold this inquiry. As you will recall, the European Scrutiny Committee and the Home Affairs and Justice Committees all agreed that Government had not lived up to its professed commitment to engage constructively with Parliament. The European Scrutiny Committee stated in November 2013 that the slow and unpredictable drip‑feed of information to Parliament was inimical to effective scrutiny. The Home Affairs Committee expressed disappointment with the extent and timeliness of the Government’s involvement in scrutinising the 2014 opt‑out and proposed opt‑in, and the Justice Committee suggested that Parliament had been treated in a cavalier fashion, and that attempts to obtain the necessary information to undertake effective scrutiny had been stonewalled.

Now, the Government has not agreed with these suggestions, but we feel strongly that these matters need to be followed through, and that is why we are holding this session today. Indeed, further to that, the European Committee in the House of Lords has made clear its own dissatisfaction with the Government’s overall handling of scrutiny of the block opt‑out process. In a letter dated 16 December, the noble Lord Boswell, in relation to these matters, catalogued the Government’s many and manifest shortcomings, and highlighted the Government’s willingness to resort to what he said were “undignified and ultimately self‑defeating procedural dodges”, and concluded the Government’s approach was symptomatic of a fundamental failure in your Departments—despite the protestations of Ministers—to understand and respect the principles of transparency and accountability. Then he added that repetition of the same mistakes and oversights could not be considered accidental but rather was the result—and this is a serious charge—of “a deliberate political decision not to facilitate proper parliamentary scrutiny”.

What we have got here is three Select Committees deeply critical of the manner in which all these matters have been handled, and the House of Lords European Committee as well. Frankly, we find it astonishing that we should have to say this, because of the clear commitment made by the Minister for Europe at the beginning of this Parliament that the Government regarded the whole question of European scrutiny as a matter of top priority, and that there would be complete compliance with all transparency and all other investigations that needed to be made. Frankly, we are deeply concerned.

Having said that, I am now going to ask the first question, which is as follows: you can be under no illusion that there is deep dissatisfaction in Parliament with the Government’s handling of the block opt‑out process, culminating in the shambolic vote on 10 November and the scrutiny overrides on two Council decisions relating to the UK’s participation in the 35 EU police and criminal justice measures subject to the block opt‑out. We were all there, or most of us were there, so we do not need to go back over the detail, but you had been dismissive of the concerns expressed not only by this Committee but, equally forcefully, by the Home Affairs and Justice Committees, as I have said, that the Government has repeatedly failed to engage fully and effectively with Parliament. Explanatory memoranda and important correspondence have frequently been provided too late to enable effective and informed scrutiny by the Committees to take place before crucial decisions have been taken by the Government.

Now that we have come to the end of the process, is it not time for you to accept the collectively held view of all three Committees and their Chairmen that the Government’s engagement has often been grudging, on occasion cavalier with Parliament, and nearly always too little and too late to enable open and informed scrutiny? Perhaps I could ask the Home Secretary first, if she would be good enough to reply to that charge.

Mrs May: Yes, I will, Sir William. I do not think that it is the case that either of our Departments or the Government as a whole has dismissed the concerns that have been expressed by the various Committees of this House, and of another place. We have, over the course of considering the issue of the block opt‑out, had numerous engagements with Parliament. There have been 11 parliamentary debates, giving full opportunities for Members of the House of Commons and, on some occasions, the Lords to be able to debate these issues. A number of statements have been given; there have been 10 hours of oral evidence sessions, including, obviously, sessions to this Committee but also other Committees. I think, overall, the Government has engaged with Parliament, and given Parliament an opportunity to consider these issues. Ministers—both I and the Justice Secretary—and junior Ministers in our Departments have been available to respond to concerns that have been raised by Members of the House.

There have been one or two occasions when I accept that there were some items of correspondence that were late. The explanatory memorandum, for example, on the transitional and financial consequences decision was two weeks late, and I apologise to this Committee for that having happened. But I think, overall, we provided a significant amount of opportunity for Parliament as a whole to be able to consider these issues.

Chair: I have been absolutely at the centre of this, right the way through from the beginning, when you first came to the House of Commons and made the statement, and I got up and said, as you may remember, that I thought that by doing it in this way you were actually making the position much worse. Quite frankly, Home Secretary, although I do not disagree that there have been a significant number of appearances, I would suggest the fact is that on almost every occasion they have been precipitated by the need of not only this Committee but other Committees to require the kind of attention that we would have expected entirely voluntarily from the Government. Unfortunately, we have had to press all the buttons in order to get these kinds of reactions out of you on a number of occasions when appearances have taken place. I am afraid I do not accept that as an explanation, but I will now move on to the second question, which is that you explained during the debate on 10 November that there was no legislative requirement for the House to vote on the entire package of 35 measures. I am now going to ask Geraint Davies if he can put the next question.

Q2   Geraint Davies: Happy New Year, by the way. As the Chair was saying, you explained during the debate on 10 November that there was no legislative requirement for the House to vote on an entire package of 35 measures. There was, however, as we know, a clear political undertaking to do so, and to cite just one example, the Government’s response to a report we published in November 2013, contained the words, “We have always been clear that the Government will hold a second vote on the final list of measures we will formally seek to rejoin. That vote will enable Parliament to scrutinise the end result of the Government’s negotiations with its European partners, and decide whether or not to support the Government.” Do you agree with me that the form of the vote on 10 November broke both the spirit and the letter of these undertakings, because obviously we did not go through all the measures as had been promised?

Mrs May: I think I am correct in saying that the Government had indeed said that Parliament would have an opportunity to take a vote that enabled it to give its opinion on the final package. At no stage, I do not think, had the Government said that we would have a vote on every individual measure that was within that package, for the reason that, from our point of view, from the Commission’s point of view, and from other member states’ point of view, this was a package of measures. The way in which the treaty was negotiated meant that we were not in a position of simply going through a process of opting individually into these things. We had a one‑off opportunity to opt in to any number of measures that we chose to opt back in to, so it was always going to be looking at the overall package.

Government was very clear, and I was very clear in the debate that took place on 10 November, that although the motion itself had referred only to those items on which it was required to have a vote for legislative purposes, had the House rejected those measures, then the Government would have considered it to have been a rejection of the entire package. It was also clear that the debate was going to be possible to be held on the entire package, and not simply on the measures that were in the particular motion before the House.

Q3   Geraint Davies: Chair, if I may, whilst I appreciate that in the course of the debate you did make clear that the interpretation of the vote by you and the Government would be as you’ve described, the Speaker’s interpretation was formally that, as such, the vote that was taken was not a vote on the entire package, but those individual items that needed the legislative change to allow it to move forward.

Mrs May: The motion before the House only had those items that required the legislative change. The point was that the Government was saying very clearly— notwithstanding that the motion only identifies certain of these measures, because those are the only ones on which there is a legislative requirement to put a vote to the House—that the vote would be taken as a view of the House on the whole package of measures.

Q4   Geraint Davies: Why was that not put in the vote, then? Why did you have the bare minimum required to just agree these bits and pieces? Why did you not say, “This will be taken as a vote on the entire package,” in the proposition? Everyone would have been happy with that.

Mrs May: I probably thought that if the Lord Chancellor and the Home Secretary stand up on the Floor of the House and say, “This is going to be taken by Government as a vote on the whole package,” hopefully Parliament would have appreciated that that was the intention of Government.

Chris Grayling: It is worth saying that this process is not one that I would have designed. We inherited in the treaty something that requires us to deal with all of these measures en bloc. I am on record as saying that I personally would have preferred to approach them individually, and to assess and debate them individually, but we did not have that option. We had the complexity of a process that, first of all, required coalition discussions, and required discussions with Parliament and the Commission, and, indeed, other member states, in order to reach a point of conclusion. One of the reasons, as this Committee will be aware, that this matter came to the House later than we had expected was the reserve placed on it by another member state. It was a much more complicated process than I would have ever wished to design, but you can only deal with what you have been given, rather than how you would like things to be.

It is also worth reminding the Committee that we did move as quickly as possible, after provisional agreement was made with the Commission in the summer, to have a “take note” debate on the final agreed list with the House to provide enough time for the Select Committees particularly to take another look at the final list as discussed and agreed provisionally with the Commission.

Q5   Geraint Davies: But would you agree that in practice, on the Order Paper, the proposition could have been what the Home Secretary said in the debate? In principle, there could have been an entire list, but in practice the Government chose not to present it in that way.

Chris Grayling: Some of the measures were administrative, whereas some required legislative clearance. But, as the Home Secretary said, we were very clear that if the House had voted against that night, it would have been treated as a vote against the whole package.

Q6   Jacob Rees-Mogg: I wonder, Lord Chancellor, whether it is unduly cynical to take the view that the measures that required statutory instruments were relatively uncontroversial, and the main one of greatest controversy was the arrest warrant, but having a procedure that did not allow the House a direct vote on the arrest warrant was an attempt by the Government to minimise its embarrassment and risk of Conservative members voting against it?

Chris Grayling: I do not believe that was the intention, but the Home Secretary might want to answer that, because she was the Department Minister responsible.

Mrs May: The European Arrest Warrant obviously comes under the Home Office, but obviously the measures that we were looking at collectively were both Home Office and MOJ measures. The European Arrest Warrant did not require us to have a vote on a piece of legislation in the House. I was very clear to Members of the House in the debate, and also to Conservative Members of Parliament who I discussed this matter with in advance, that when we came to the debate, we would be debating the European Arrest Warrant as well as everything else, and obviously that the vote would be a vote on the European Arrest Warrant. There was never any suggestion that there would not be discussion, and the opinion of Parliament taken, on the European Arrest Warrant.

Q7   Jacob Rees-Mogg: Isn’t this, Chairman, procedurally very peculiar? Normally the Speaker rules out of order any attempt to speak on matters that are not referred to under the title of the debate. For Ministers to say that a debate on a particular subject includes random other subjects, or even related other subjects, but not the ones that are under the motion for debate, is a very damaging parliamentary precedent, because it means that debates can wander wherever the Government wishes, rather than sticking to the motion that has been put down.

Mrs May: You may recall, Mr Rees‑Mogg, if you look at what happened that night, that in fact the Speaker indicated in his statement in advance of the debate that he was willing to accept debate on measures other than those that were in the list. It was not Government simply saying this; the Speaker was very clear that he would consider it in order for Members of the House to contribute in the debate on measures that were not listed in the motion that was before the House.

Q8   Jacob Rees-Mogg: The Speaker made a concession to the normal parliamentary convention, rather than this being the normal parliamentary convention.

Mrs May: That is a matter for the Speaker to decide, and the Speaker gave his judgment.

Jacob Rees-Mogg: That is what he said, yes.

Q9   Chair: Frankly, I do not think there are many people who believe that this was anything other than a shambles. I was there; so were many other people in this room, and it was catastrophic in the way that it was handled. That is the overall position. The question of whether or not to any extent this was driven by coalition politics is another aspect of this, because there was no doubt at all that there were very strong feelings held on both sides of the House about the matter. There was the role of the European Commission, of course, which is more than anxious to get all of this stuff through anyway, and frankly there are those of us who believe that ultimately this was not only extremely badly handled but in defiance of what we would have expected of Government, and that it was driven by a variety of different considerations.

To go on to the question of how the House of Lords has reacted, I have already identified what Lord Boswell wrote to you on 16 December. I will not repeat that, but I would simply add that he says in conclusion that the repetition of the same mistakes and oversights could not be considered accidental but rather were the result of “a deliberate political decision not to facilitate proper parliamentary scrutiny”. Now, this business of parliamentary scrutiny on European legislation is not a minor matter. It is very serious indeed. It goes back to the heart of the way in which this country is increasingly being governed, because we are governed through the implementation of Council decisions, and as you know—although that did not apply at this particular point in time—there has been a change, yet again, in the voting arrangements since 1 November this year. That has made substantial changes, reweighting the voting arrangements in accordance with population, and giving certain member states extremely powerful positions. These are the other countries.

The position is that all these people who I have mentioned have, in fact, agreed that this has not been anything other than a disastrous and most unfortunate series of events. We agree with this, and I am simply going to ask you, for the record, do you?

Mrs May: As I indicated earlier, Mr Chairman—obviously, the Justice Secretary may wish to respond as well—I think, from the Government’s point of view, we felt we had given Parliament a significant opportunity through the various debates, questions for statements and oral evidence sessions to raise issues. I certainly do not consider that scrutiny of European measures is a minor matter. I have written myself in the past on the importance of changing the approach to these matters, some of which has, of course, been adopted in the approach that this Government has taken when this Government has given more opportunities for debate and consideration of European matters than has been the case in the past. As I say, we gave considerable opportunity for debate in this matter. I have made reference to a specific matter in which I know we delivered the explanatory memorandum late, and I have apologised to the Committee for that.

Chris Grayling: As somebody who is not a great enthusiast for the march of justice and home affairs legislation, I have been robust in resisting this, and I have been helped by the opt‑out that we have on new legislation not to accept measures that I believe are creating a European justice system. None the less, had we not walked the delicate tightrope that was walked, we would have been in a position where we would not end up opting out of any of the 133 measures, which I think would have been a worse place to be than might otherwise have been the case.

It is always complicated when you have different issues to deal with: when you have to sort out a coalition negotiation and other member states, and have to balance politics with security imperatives, as the Home Secretary has certainly had to do, and also to make sure that you provide adequate time for debate and discussion. As the Home Secretary said, it has been extensively debated. We made a particular point, as I said earlier, of ensuring that we brought the final list to the House quickly so that it could be considered back in July, and then there would be time for a Select Committee inquiry or Select Committee inquiries. We have tried to ensure that there is time available, particularly for this Committee and its counterparts, to scrutinise the options on the table, but it has not been as straightforward as it might have been, given the nature of the treaty and the complexity of the process, the fact of coalition politics, and the fact of getting it through a complicated situation at both the Council and the Commission.

Q10   Chair: I do detect a slight difference of emphasis, if I could make that point, between the two of you. I do not think you are entirely on the same page, but I see that the Home Secretary does not agree with that.

Mrs May: I do not think the Justice Secretary agrees with it either, with due respect, Chairman.

Chair: Yes, but what he has said is on the record, so we can judge that afterwards.

Q11   Mr Clappison: Can I just follow up on what the Justice Secretary has said about this? You rightly refer to the unfortunate inheritance that this Government has had from the way these matters were dealt with under the Treaty of Lisbon, and the whole way that legislation was dealt with under the Treaty of Lisbon—and certainly the opt‑out—was part of that. Do you not think it better, quite simply, if we have a debate—which I believe is long overdue in this country—as to whether or not we want to make our own criminal justice legislation or allow it to be made by European Union institutions, with the overriding jurisdiction of the European Court of Justice? That is long overdue, isn’t it?

Chris Grayling: We have clearly got to address the issue of the nature of our relationship with the European Union. Sir William made the very valid point about the change to the voting situation in the Council, which carries broader challenges for government in this country, because of the balance between those that are inside the eurozone and those that are outside the eurozone, and where the votes lie on the Council. There are longer and deeper issues to address, and I have been very clear to this Committee and to the other Committees that I do not believe in a European justice system. There is a need for us to co-operate across borders in fighting international crime, terrorism and meeting the security threat, and the Home Secretary has been absolutely right in saying that we must take the necessary steps to protect the people of this country. This, I know from conversations that she and I have had, has been the number one priority for her. But that does not mean that we have to have common court process in every country and it does not mean that we have to have a common system of criminal penalties in every country, and in bringing forward a list, we sought to make that divide.

Q12   Geraint Davies: Those people who have concerns about Europe normally have concerns about sovereignty, scrutiny and decisions made behind closed doors by other people. Would you not accept that the way that you both managed this particular bit of business was a way to minimise scrutiny, debate, discussion and indeed conflict over a controversial bit of legislation and our relationships with Europe; and in so doing you did not really help things in that respect?

Chris Grayling: I do not think I would accept the premise. I do not think the issue is about decisions being taken behind closed doors in Brussels. They are frequently taken at the Council, under the TV cameras. The issue of debate about Europe is whether decisions should be taken collectively, or whether they should be taken in the UK, and it is the Conservative party view—but it is not the view of this Government—that we need to look again, and we need to renegotiate that membership so that decisions are taken in the right places.

Chair: On that encouraging note, I would like to ask Kelvin Hopkins if he would ask the next question.

Q13   Kelvin Hopkins: My questions concern your handling of the draft Council decision on the financial consequences of the UK’s block opt‑out, on which you overrode our scrutiny reserve, and secondly the draft Council decision on consequential and transitional arrangements, on which the Home Secretary has already touched. Why were the Government’s explanatory memoranda on these draft decisions more than two weeks overdue?

Mrs May: I have already indicated, Chairman, to the Committee that I recognise that they were two weeks late. That was in relation to processing within the Department, and I apologised to the Committee for that. There was a very tight timetable. One of the issues we have been dealing with on all of these matters, in relation to the end point, was that there were certain things that came up quite late to the Government, partly as a result, obviously, of the Spanish reservation, which was not lifted until a fairly late stage. But I recognise that those two explanatory memoranda should have been with the Committee earlier, and, as I say, I can only repeat my apology to the Committee for that.

Q14   Kelvin Hopkins: I am sure the Committee appreciates the apology, but it does not explain why they were so late. There are two possible alternatives. One is that your Departments were behind in their work and not getting things done in time, or there was a deliberate attempt to delay things to bounce the Committee into decisions, when it was getting late in the day.

Mrs May: No. I have to say, Mr Hopkins, we probably recognise that it is not possible to bounce this Committee into making any decisions. This Committee is very firm about its desire to be able to look at things on a full and timely basis. Some of the final decisions were not published until virtually the point at which they were going to come into operation, and had Government not acted as it did, we would have had an operational gap on some very important security measures. In relation to this, there was a delay in the processing within the Department.

Q15   Kelvin Hopkins: Another delay. Why did it take three weeks for you to respond to the questions we raised in our 19th report, agreed on 5 November? Were you unable to provide the information we requested sooner, or were you simply unwilling to do so?

Mrs May: Was that the report on 5 November or 6 November?

Kelvin Hopkins: 5 November, the 19th report. But, again, it touches on the point that I have just made. Is it a question of a lack of ability to provide the information or a reluctance to do so, which would be more worrying?

Mrs May: There are certainly occasions in relation to dealing with these issues where the issues have been of a nature such that it is necessary to, obviously, give some significant consideration to them in responding to questions. I queried the date, sorry, because I had a different date from the date on which the report was published, although we are probably talking about the report on the transitional and financial consequences measures. Is that the report that you are referring to?

Q16   Kelvin Hopkins: We are obviously talking about the same thing. My final question is that the approach you have taken to scrutiny of these draft decisions suggests that you do not recognise the vital distinction between the provision of information and the job of scrutiny. Do you accept that it was unreasonable to expect scrutiny clearance at our meeting on 26 November when you had only provided the information we requested that morning, in the knowledge that there would be insufficient time for rigorous analysis and scrutiny? Again, this last‑minute provision of information suggests either a panic in the Department, not being up to date with work, or something of a deliberate decision to provide it at the last possible moment.

Mrs May: We did have a situation at the end of this process where the decision that came from the European Council decision came to us very late. We only had a settled draft of the Council decision on 25 November or 26 November, and it was at that point that we submitted it to this Committee. We had hoped that the Committee might be able to give it the scrutiny necessary. The Committee took the decision that it wished to take longer and give it a fuller process of scrutiny, but it was only with us just before we gave it to the Committee. That was not a factor of what the Government was doing; it was a factor of the timetable that the Commission had provided for us.

Chris Grayling: We were, of course, affected in all of this at different stages by the process we had to go through. Relatively late in the day, we had the Spanish reserve, which caused what we would have expected to be the timetable to slip back significantly, and we were affected by a number of Councils as well. Therefore, we were as much a victim of complications in process as anything else. Certainly at no point was there any intent to hold stuff back from the Committee’s consideration. Indeed, as I said earlier, we came to the Committees in the summer so you could do a full report, and we have always been available for this Committee to question us, as have our officials.

Q17   Kelvin Hopkins: I do not want to start a conspiracy theory hare running, but the Commission, clearly, is very concerned about all of this. This could be quite a setback, politically, for them. Is it not a possibility that they might be delaying things deliberately to make things more difficult for the Government and for us?

Chris Grayling: If you look at the circumstances around the nature of the delay, the Spanish Government, and other things that have taken place around the Spanish Government in recent months, you would probably draw the conclusion that there is another agenda to the one you have been talking about.

Chair: I ought to add that, obviously, you have your officials; we have ours, and we monitor the matters very carefully. I would just put on the record the fact that the Committee, in this instance, agreed to clear the matters from scrutiny at its meeting on 3 December, and we noted—and your officials sitting next to you, I am sure, will recall this—that there was no good reason why the Government could not have provided the information requested sooner. The United Kingdom voted for the draft Council decision on financial consequences, thereby overriding the scrutiny reserve, so it may well be that you have your explanations, but, as between me and my advisers and the careful manner in which they monitor the procedural timetables, what I have just said is the view of my Committee advisers. We will move on to the next question.

Q18   Henry Smith: My thanks, Home Secretary and Lord Chancellor, for appearing before us today. I have got some questions with regard to Schengen, and they are in two parts, so perhaps it would be better, Chairman, to ask the first part and then later on go to the second part. A further Council decision confirming UK participation in six Schengen measures was then followed by a Commission decision confirming UK participation in a further 29 Schengen measures. That was deposited in Parliament on 4 December, three days after their adoption and publication in the official Journal. My initial question is why did you not deposit the draft Council decision concerning the six Schengen measures as soon as they became available on 19 November 2014?

Mrs May: Can I just clarify, Mr Smith, that the six measures are the Schengen measures? The 29 measures were the non‑Schengen measures.

Henry Smith: Yes, indeed.

Mrs May: Sorry, I am just checking the dates on which we received them.

Chair: Would Mr Storr like to come in at this point?

Mrs May: I am sorry; I was about to answer you on the non‑Schengen measures, but it is the Schengen measures you want first.

Q19   Chair: I appreciate, Home Secretary, that some of these are extremely detailed procedural questions, but the scrutiny issue is fundamental to the whole process of parliamentary accountability. As I indicated just now, it is not impossible that you might even find that your officials had put you in a position that made life rather difficult for you, let alone the Commission.

Mrs May: The Schengen Council decision was obviously quite late, in terms of when the text was published by the Council. There was, I am sorry to say, a technical error in Government, which meant that it was not deposited immediately when it was possible for it to be deposited. It was deposited alongside an explanatory memorandum.

Q20   Henry Smith: Perhaps I can come to a more general point: Cabinet Office guidance says that parliamentary scrutiny of EU documents means that explanatory memoranda should be submitted on fast‑moving documents, even if they are not fully available for deposit. Why were explanatory memoranda on the Council and Commission decisions not available before 1 December?

Mrs May: If you are talking about both of the Council decisions, the Council decision on the non‑Schengen measures was not published, as I understand it, until after it had been adopted on 1 December, so we did not receive that particular measure and the Council’s decision until after it had been adopted by the Council. As I have said, in relation to the question of the Schengen measures, there was a technical error. I am interested that you cite Cabinet Office guidance. This was a technical error that was made in Government. In relation to some of these measures, it has been our experience—and, indeed, has become now our practice—to deposit decisions only when they are finalised, when there is a final text agreement. We have been willing in the past to deposit draft texts for the Committee, but the Committee has made its view very clear that it wishes to see only final texts.

Q21   Henry Smith: That, Chairman, if I may, leads me on to my next question, and that is what lessons can be learned from the experience that we have shared—if I can put it like that—in November and December last year, and how do the Home Office and the Ministry of Justice propose to improve the availability of scrutiny?

Mrs May: The Lord Chancellor will answer for the Ministry of Justice. Certainly, from a Home Office point of view, we have to look and make sure that our processes internally ensure that we provide information in a timely fashion. There is, though, a lesson that I would hope it would be possible for the Committee to consider in matters relating to scrutiny. It would, I think, benefit the Committee if it was willing to accept draft texts at an earlier stage, very often, so that it could give an earlier initial consideration to these matters. Sometimes, the timetable is very tight, and certainly the deposit of draft texts would help. I would be very happy for officials from my Department, and, I imagine, from the Ministry of Justice, to discuss these matters with the Clerks to the Committee, if that would be of benefit to the Committee.

Q22   Chair: Of course, we are working on draft texts the whole time anyway, so for practical purposes, I am not quite sure where that would leave us. Frankly, what has happened in relation to this, for whatever reason—whether or not this is a matter that you want to take up with your officials—is that something went seriously wrong over this whole process. There is no doubt about that. I do not expect you to sit there and say, “Yes, of course, everything that you say is completely accurate, and I entirely agree with everything that you say and all of your criticisms,” but by any reasonable standards, Home Secretary, it must be clear that this is not being handled well.

Whether this is entirely your responsibility is a matter of constitutional propriety and the role of the Secretary of State. However, it is also true to say that you are very much in the hands of your officials, with a lot of very complicated and difficult things going on the whole time in a whole range of matters. These procedural matters go to the heart of scrutiny, to enable Parliament to be fully aware of what is happening at the right time, and also to be able to deal with the complexities of these questions and ask the right questions, and to get the answers from you. This may depend to a significant extent on the way the Commission carries on, on the one hand, and whether your officials are absolutely up to the mark on the other. That is a matter for you, but I have to say that we are not satisfied by the way in which this has been handled—as we have made clear—and if you would be good enough to consider what I am saying, you may care to have a word with your officials and see if you cannot get them to step up to the mark a bit better.

Mrs May: Chairman, if I may, I of course take responsibility for what happens in my Department.

Chair: Of course.

Mrs May: That is entirely what I should do as a Secretary of State, and the Justice Secretary, I am sure, will do the same for his Department.

Chris Grayling: Absolutely.

Mrs May: I would also, though, echo comments that the Justice Secretary made earlier, in that in this entire process, matters have not always been in our hands as to the timetable that we have had to follow, because of the matters of dealing with various other external parties.

Chair: I think that the coalition is part of that problem, perhaps, not to mention the attitudes of some of the more cavalier members of the European Commission. There are many complexities here; we are not going to underestimate the complexities. We are interested in the scrutiny because we believe that, ultimately, when the decisions are taken, they do have a huge impact on the voters of this country, and in particular, as Mr Rees‑Mogg was saying just now, the whole question of the European Arrest Warrant, which is highly controversial. Having said that, I am now going to ask Mr Rees‑Mogg if he could move on to the next question.

Q23   Jacob Rees-Mogg: The Prime Minister said that the block opt‑out constitutes the biggest transfer of power from Brussels back to Britain, by opting out of over 100 measures. Home Secretary, you have also said that the Government has brought back some 100 powers from Brussels. I wonder if we could look at this number? The Commission list published in the C series of the official journal on 1 December 2014 indicates a total of 75 EU police and criminal justice measures ceased to apply to the UK from that date, and 12 of those measures are anyway about to be repealed, bringing the total down to 63.

Home Secretary, your Department dutifully and fully responded to scores of questions I asked on the individual measures. May I record my gratitude, mainly to Mr Brokenshire, for his responses? I was trying to find out whether the true position was that the Government was rejoining 35 of the most significant measures, but opting out of those that were basically defunct or of little importance, excluding Prüm, which we opted out of for financial reasons. So, we concluded in our November 2013 report that there was little evidence of a genuine and significant repatriation of powers. I wonder whether you think we are wrong, or whether you think there really was this vast repatriation? Perhaps I could tempt you on the issue of the coalition. The Lord President of the Council takes a very novel view of collective responsibility, but Conservative Ministers—and particularly you, Home Secretary—have been very noble in sticking to a more historic understanding of collective responsibility. Perhaps you do not want to break away from that today, but this may be an opportunity to, in answering us, play the same game as the Lord President of the Council.

Mrs May: Collective responsibility is a very important underpinning of our Government, although I have to say to Mr Rees‑Mogg that there are issues on which a difference of opinion between me and the Lord President of the Council has been very clear. I refer, of course, to the matter of communications data, and the legislative approach that the Government might need to take to ensuring that our security and law enforcement agencies have access to what they need to have access to in that particular area. In relation to the number of measures, it was a significant transfer. There were a number of measures that, of course, have been Lisbonised, meaning they cease to be part of the process that we were participating in. I may now hand over to the Justice Secretary, because one of the key areas of opt‑out has been some of the minimum standards areas in relation to justice.

Chris Grayling: That is right. There is no doubt that if you take the list of the 35 and the 75 that no longer apply to us, a number of the original measures were being superseded, or had been superseded, or indeed, were superseded during the process itself. But I do think that we have taken a very clear step away from having European penalties on things like fraud against the euro, or fraud against EU institutions. To my mind, fraud against the euro is not a crime in its own right. Counterfeiting the euro is not a crime in its own right. Counterfeiting the dollar, the yen, the pound, the euro, or the Indian rupee are all crimes of fraud, and should be treated as such. It should be a matter for this country to decide what the penalties should be.

If you look at the approach that we took, and if you look at the list of measures we opted back in to, there was a degree of discussion across the coalition about which measures we should opt back in to. The list that we opted back in to inevitably reflected the interests of all parts of the coalition. But I thought it was very important we achieve, and we have, in my view, a situation where we have resisted being part of matters that are the nuts and bolts of a European justice system: common sentencing policies, common criminal offences, or common modus operandi within courts. I have continued to resist newer measures that require individual opt‑outs, as well as saying that we should withdraw from those measures in the list of 133 that kept us in an environment where we had to meet European thresholds for sentencing in our courts.

Q24   Jacob Rees-Mogg: Thank you. I wonder how secure you think these opt‑outs are? I am sure you are aware that one of the Department for Transport’s opt‑outs has been re‑imposed by the European Court of Justice under an alternative mechanism, and the President of the Court of Justice of the European Union has said that there is a key task to prevent the European Union from reducing the powers of institutions, such as the Luxembourg Court. With such a highly politicised Court—this was in his speech, which I think you are aware of, to the incoming Commission—are you worried that some of the things that we have opted out of may be brought back through the back door, and through a politicised Court implementing them?

Chris Grayling: The answer to that is yes, I am, and I am worried for two reasons. If we start with the Court, I also read the comments of the President of the Court, and I found them extremely worrying. The job of a court is to take a dispassionate view of a case based on the evidence available to it and the law at the time. The job of a court is not to pursue a political agenda, and I thought the comments made by the President were not appropriate for a judge, and it is really important that the European Court of Justice does not see itself as part of pursuing a European agenda. It is there to act as a proper, independent court, looking at the law as it stands and as it is made by the democratically elected Governments of the European Union.

The other part that is of concern to me is that it is certainly the case—and I know we have had this discussion in this Committee before—that the Commission itself has also tried to override the opt‑outs that we have through a creative use of legal base, and through innovative approaches to the use of the treaty in its current form. It is something that I object to most strongly and that I have sought to resist, and it is something that this country needs to remain immensely vigilant about, and that I personally think we will need to deal with if we are to repatriate powers as part of our renegotiation. We will need to make sure that those powers are properly repatriated, and they are not able to be, as you suggest, taken back to Brussels through clever use of the treaty.

Chair: Of course, what you have just said is highly important, not least of which is the fact that the Court of Justice—under sections two and three of the European Communities Act—has the last say, and it is impossible, other than by getting unanimity from all of the member states, to reverse any of these decisions. What you are actually saying is pretty significant in terms of the whole question of our relationship with the European Union. We will be moving on to the Charter a little bit later, but there are, I would suggest, increasing numbers of people who are now very concerned by the extent to which we as a Parliament are being locked into decisions, by our own decision. Sections Two and Three are a voluntary arrangement, which we can deal with, and I am now going to mention the formula, which I can see the Home Secretary is anticipating already: notwithstanding the European Communities Act 1972, we have the power to do it. In the light of what you have said, and the significance of what Mr Rees‑Mogg said, I would suggest that the time is coming when the tide towards some arrangement that bypasses the Court when it is simply not in our national interest is now becoming increasingly relevant.

Q25   Mr Clappison: Home Secretary, could I ask you about the Prüm package, which, as you know, is intended to provide reciprocal access to member states’ DNA and fingerprint bases and vehicle registration? During a general debate on the UK’s block opt‑out in July, you said that the UK would not rejoin the Prüm decisions, but the Government would produce a business and implementation case, and run a small‑scale pilot with all the necessary safeguards in place. There has been some press comment about that subsequently. Can you explain what exactly will be involved in the pilot, and how much access other member states will have to the UK’s DNA database, fingerprints, and vehicle registration databases?

Mrs May: One of the key factors in looking at Prüm is that it is within the gift of the member state concerned to determine what the database is that is going to be accessed by the other member states. We have agreed to undertake this pilot. That will involve exchanging up to 10,000 unsolved UK crime scene DNA profiles with member states that are applying Prüm, and sharing that as a result of the business and implementation case. The question that is asked in Prüm is simply, “Do you have a match to this?” It does not necessarily involve any more information than that.

We also agreed that other member states may provide crime scene profiles to the UK, up to a maximum capacity of 3,000, and those will be searched against an agreed set of profiles containing serious criminals convicted in the United Kingdom. We can currently exchange DNA with other member states through Interpol. It is very slow, and the volume of exchange tends to be very limited. There are those who say that Prüm has an advantage in being an agreed procedure that is faster and speedier, and therefore gives easier results. We have been very clear that any consideration of Prüm should be a matter for Parliament, and there will be a business and implementation case that will bring within it the results of the pilot, to show whether there has been any impact—any cases that could have been solved, for example, as a result of that pilot.

Q26   Mr Clappison: And that will be put to Parliament?

Mrs May: That will be put to Parliament, yes.

Q27   Nia Griffith: Home Secretary, I would like to ask about the issue of debates that are recommended by this Committee. For example, on CEPOL, we have asked for two debates. Now, one of those debates took place seven weeks after the Government had decided to opt in, and it was four months after the time that we had recommended that debate. The second one, again, on CEPOL, we recommended back in September. The opt‑in deadline was 24 November. We still have not had that debate, nor has Parliament been informed of the Government’s opt‑in decision. This just does not seem to stack up with the Minister for Europe’s written ministerial statement back in January 2011, when he talked about the Government’s commitment to rigorous parliamentary scrutiny in order to ensure full transparency and accountability of opt‑in decisions. Is that ministerial statement now defunct?

Mrs May: No, the ministerial statement is not defunct. I recognise that we have not met the Lidington commitments by not notifying the Committee in advance, or by having a debate in advance. Government is still considering that request from this Committee for a debate on the issue of CEPOL.

Q28   Nia Griffith: Could I just push that a little further? We seem to have a number of days now where business finishes two or three hours early. What is the reason for that delay? It does not seem to be a timetabling reason.

Mrs May: Government, obviously, looks across the parliamentary timetable and considers all the business that it wishes to bring to the House, and a collective decision is taken as to which matters can be brought forward. The request for the CEPOL debate is still a matter that is under consideration.

Q29   Nia Griffith: We have got some other debates that are outstanding and that seem to be of considerable interest and political importance. For example, back last January, we wanted to have a debate on the free movement of EU citizens and their families, and yet that still has not been scheduled, a year later. There is another debate that we asked for in April about the guidelines for justice and home affairs up to 2020. The actual guidelines were agreed in the European Council in June, and yet we still have not had that debate. Another debate that we asked for back in May was on the Commission communication on the rule of law, and again that has not taken place. For the same reasons, we wonder why these could not have been fitted in somewhere in the schedule, particularly when there is a lot of public interest in some of them.

Mrs May: I can only repeat the answer that I have given: that Government gives proper and full consideration to requests for debates, and obviously a number of debates have been timetabled following requests from this Committee. I note that you indicate that there are a number of outstanding requests from this Committee for Government to consider.

Q30   Nia Griffith: A year is a long time, and obviously we are now coming up to the end of a parliamentary session. Are those debates going to be scheduled?

Mrs May: That would be a matter for Government to consider in terms of the full business of the House.

Q31   Chair: Yes, but who do you hold responsible for this? It is inconceivable that a matter as important as the free movement of EU citizens is not of relevance, given all the discussion about immigration and all that goes with it. This is a matter that has not been debated, despite the fact that it is clearly of massive legal and political importance. It is a year, almost to the day, since this was first put forward for debate by us. We have already discussed the European scrutiny process in relation to other matters on the opt‑outs, but this is a policy question about the free movement of EU citizens. Now, nobody could conceivably imagine that is not of high relevance to the public debate. It is quite clear, therefore—if I may, just before you answer—that somebody is responsible for deliberately refusing to allocate the time for this. I have listened to what you say, but I am not convinced remotely by it.

Mrs May: I am having difficulty convincing you this afternoon.

Chair: You are, I am afraid, yes. But having said that, you know—because you are extremely perceptive in these matters—that we are not going to be taken in by a bit of waffle about the fact that the Government is having to allocate its time according to the priorities in front of it, which is pretty well what you said. We all know that. The real question is whether they just do not want this debated, and the reason that Nia Griffith gave just now is highly important. Every night, now, we pack up at around 4.30 pm or 5 pm, and the idea that you could not hold a debate on a matter as central to the whole question of immigration as the free movement of EU citizens does not just defy belief; it completely and totally takes us on to another planet. For practical purposes, we are going to summon the Leader of the House, and you have not given us an answer. It may be that you do not want to; it may be that you cannot. But the bottom line is that somebody is responsible for holding this up, and it is a disgrace.

Q32   Jacob Rees-Mogg: Home Secretary, I quite understand that it is not your responsibility to organise votes—that is for the First Secretary of State and the Leader of the House—but in whatever parliamentary language it is possible to use, could you give the First Secretary of State a prod, so that we could get our debates, please? Would you undertake to the Committee to do that?

Mrs May: I will undertake to raise with the Leader of the House the concerns of this Committee about the debates.

Q33   Jacob Rees-Mogg: Will you raise them positively, rather than negatively? That is to say, to encourage him, rather than to discourage him?

Chair: Say, “We really do want to discuss free movement of citizens, don’t we?”

Mrs May: Chairman, I, more than anybody probably, understand the importance of the issue of free movement and the impact that it has. There are a number of debates, obviously, that Nia Griffith referred to in relation to this. I am sure the Justice Secretary will be willing to join me in doing this, in speaking to the leader of the House, and indicating to him that this Committee is very concerned about the fact that it has not yet been able to debate a number of matters that it has requested debates on, and that time is running out.

Q34   Jacob Rees-Mogg: Do you, Home Secretary, think this is a good thing? Lord Chancellor, perhaps you would encourage this as well. Do you both think that it would be a good thing to have these debates?

Mrs May: As I have said, I am very happy to debate free movement. I absolutely understand the importance of free movement as an issue. I deal with it on a regular basis.

Q35   Chair: You are telling us that you would like to see that debated. Is that right?

Jacob Rees-Mogg: Yes, I think we have got that answer.

Mrs May: I think we are both indicating that we would be positive about this.

Chair: Excellent. Having said that, the only other question is why it is that, every time I raise this at business questions, which is now twice in the last few weeks, with the Leader of the House—and I have raised it with him very specifically; you might not know that, but I have—he has said to me that the matter will be looked at, and that he would be happy to discuss it with me. But I am afraid we get nowhere at the moment, which is why we decided to write him a fairly stern letter today.

Q36   Geraint Davies: Obviously, Home Secretary, you mentioned collective responsibility before, and it is clear to all of us that there is enough parliamentary time to have a debate on the free movement of EU citizens. Does it not follow that what we have got here is that collective responsibility—namely, the difference between the Deputy Prime Minister and the Prime Minister on the free movement of EU citizens is so great that they do not want an open debate in Parliament—is trumping democracy itself?

Mrs May: I am not sure I have quite followed the point.

Q37   Geraint Davies: Would you agree with me, then, that there is time—there has been time—to have a debate on the free movement on EU citizens, and even though the Prime Minister has come out in public and said he is not in favour of it, we have had no parliamentary debate, because there is some stitch‑up behind closed doors in the coalition?

Mrs May: No, I would not describe the situation as that. Collective responsibility, as I indicated I believed in in relation to the questions I was asked earlier, means that I answered the question in the way that I did; namely, that this is a matter for Government collectively to look at. One point I would make, if I might, Sir William, is that you referred to parliamentary debates ending early. That does not indicate that we do not have important measures to discuss. We do have important measures to discuss, but in some of those matters, the debates do end early because there are not the contributions from Members from the House. For example, the CT and Security Bill debate last Wednesday ended slightly earlier than otherwise because there were not that many Members of the House present for that debate. But that was a significant and important issue.

Chair: All I can say is that I have been in this House 30 years, and I know that the Whips have a capacity for delivering people to the green Benches in order to debate matters if they feel that it is necessary to do so. I also know that there are other reasons why people might not want matters to be debated, and those are also matters that the Whips handle. That is not your responsibility, but we are going to pursue the matter with the Leader of the House. I would like to turn, if I may, to James Clappison. We are now moving on to the Charter.

Q38   Mr Clappison: As you were saying that, Mr Chairman, having those exchanges, we have now moved on to Third Reading of the Stamp Duty Land Tax Bill, having concluded the Committee consideration of it in the time we have been asking questions. There we are. Can I ask you about the Charter of Fundamental Rights? We have produced a report on this, because of the concern that the Committee has had about this over a long period of time, going back to when we acceded to the European Charter of Fundamental Rights. You will recall, Justice Secretary, that at that time we were told by those who were then responsible for these matters that the United Kingdom would enjoy an opt‑out by virtue of Protocol 30.

However, since then, it has emerged quite clearly that Protocol 30 falls short of being an opt‑out, and there is now some confusion, perhaps—if we use that word—as to where and when it would apply to UK law. This Committee, in its recommendations, suggested that we disapplied the Charter by way of an amendment to the European Communities Act. Since we made that recommendation, we have had further evidence on the confused situation as regards the application of the Charter to this country, not least when the Charter celebrated its fifth anniversary. On that day, 1 December, a senior legal adviser to the Fundamental Rights Agency wrote, with reference to this Committee’s recommendation to unilaterally disapply the Charter—and I quote from what he said—“some hesitance at national level is due to the fact that it is not easy to understand where the Charter applies and where it does not, given the complexity of how legal powers are allocated to the different layers of governance.” Home Secretary, do you not think that now is the time that we clarify this situation, and deal with the European Charter of Fundamental Rights?

Mrs May: If I may, this is for the Justice Secretary.

Chris Grayling: If we start with the practicalities, we were hoodwinked over the Charter. We should never have been part of it in the first place. We were promised that it would be a meaningless document. The last Government led us up the garden path over it, and that should not have happened, and those who were involved at the time should be ashamed about what they did; but they should have been ashamed of what they did over the Lisbon Treaty as well, where the same thing applied.

The Charter did not create new rights in its own right, but what it did was codify a lot of things that either existed in bits and pieces of European law, or in custom and practice. It created for the Court a reference point that was a very clear, simple document, and my anxiety about documents like the Charter is that they effectively create blank-cheque jurisprudence. Sir William rightly said earlier that it takes a unanimous vote to overrule an ECJ judgment. It creates a tool for the ECJ to interpret the Charter in ways that impact right across the scope of European law. We will come on to the issue of the EU’s accession to the ECHR in a moment, but it creates a point of conflict there as well.

How does it affect us? The first thing it is important to say is that, yes, it does apply to the UK, and all the advice we have had so far and all of the evidence I have seen so far is that there is, genuinely, a stopping point. It does not permeate into matters that are genuinely wholly related to UK law, so you would not see the Charter applied in a UK criminal court, for example. But the question we have to ask is where the dividing line comes in areas where European law is fairly vague in scope, and there is no doubt that there are those in Brussels who would like to see the Charter permeate member state law. The previous Vice‑President of the European Commission was very explicit about her desire to see the Charter permeate national law. She said she wanted to see the Charter applied at national level as well.

We have to watch this like a hawk. I have to say that this is an area where there is not a great division across the coalition. Liberal Democrats have stood up in the House and also said that it is not their wish, either, to see the Charter become something that is applied in UK law as well, in the UK courts. Up to now, the references to the Charter in UK case law have been pretty few and far between, and I have not seen, as yet, evidence of the Charter really gaining a serious foothold, but I am watching this very carefully. I am very mindful of the view of this Committee; I share this Committee’s concerns. If I feel the need to go to my colleagues in Government and say, “We have got a real problem here,” then I will do so.

Q39   Chair: Could I come back to the Home Secretary on this question? As she will recall, I raised this on the Counter‑Terrorism Bill last Tuesday, the day before the tragedy in France. I warned that I thought there was a real danger that the exclusion orders could be subjected to the Charter, and that the consequences of that would be that people who otherwise would want to complain that they should not be subjected to exclusion orders would rely on the Charter in order to find a way of escaping from the legal processes provided by the provisions of the exclusion order provisions. In the present tragic circumstances, where the Prime Minster quite rightly is saying that we are anticipating, because of the severity of the threat level—there was a meeting, no doubt, this morning with the security and intelligence people, which I am sure you were at as well—that this is an extremely dangerous situation, the last thing that anyone would want would be for people to be able to rely on the Charter in order to be able to escape from the implications and the provisions of the exclusion orders.

I have asked for advice on this question, which is in the course of preparation, and the present indications are that it will be extremely difficult to avoid the implications of the Charter in relation to those exclusion orders, as I suggested and predicted when I made my remarks on the amendment that I put forward last Tuesday, before these tragic events in Paris. Could I ask the Home Secretary if she has taken similar advice with respect to the questions that I raised at that time, and would she be good enough, if not immediately—because she will have to take legal advice—to come back to us with respect to the question of whether or not the Charter would apply to these exclusion orders? That may be through the Attorney-General; I do not know who you would go to, but there are legal advisers, obviously, in your Department as well. We think that the Charter will apply.

Mrs May: I would be very happy to. I have not seen advice in direct response to the issues that you raised on the Floor of the House, Sir William. Obviously, in looking at introducing temporary exclusion orders, full consideration is given as to the international obligations that we had, and other aspects that could affect our ability to apply those orders. I was given confidence that there would not be anything that could, if I may use the term, scupper those orders, or the application of those orders, but I am certainly happy to go away and look more specifically at advice relating to the points that you raised on the Floor of the House.

Q40   Chair: That is very good of you. Of course, you have had very personal experience as Home Secretary over quite a long period of time of running up against the problems inherent in the Human Rights Act and the Convention itself, in relation to a whole series of deportations. The list is quite long, and you have had some extremely disagreeable situations that have faced you over a long period of time. I simply make the point that, whereas the Human Rights Act and the European Convention lead in the direction of some degree of very grave concern, when it gets to the Charter, you are dealing with the Court of Justice, and therefore if I am right, and if the legal advice that I am receiving at the moment does lead to the conclusion that the Charter would apply to these exclusion orders, then you are going to be in the hands of the European Court of Justice. Therefore, on a very serious matter of huge significance to security, danger to the public and so on, you will find that you are caught up in the intricacies of the European Court, which would have the last word. That is over and above Parliament as we have agreed it for the time being—wrongly, I think—but also the Supreme Court, who would effectively be bypassed in this respect. I just invite you to consider those points, so that I get them on the record and enable you to be able to take the legal advice that I am sure you are capable of getting.

Mrs May: As I say, I am very happy to look at the way in which you specifically raised it in the House, Sir William. I am bound to say that in relation to some of the cases under the European Court of Human Rights and European Convention on Human Rights, of course, I am pleased to say that in some key cases—notably, Abu Hamza and Abu Qatada—perseverance paid off.

Chair: It did take a very long time.

Mrs May: We were able to effect their removal from the United Kingdom. The other point that I would make is that I have said, and I have said on the Floor of the House, that the question of the relationship with the European Court of Justice is a matter that will be for future debate in looking at the whole question of the relationship of the United Kingdom with the European Union.

Q41   Chair: That is going to be a really big one, because if you say that you are going to bypass the Court—which is what I have been arguing, with the notwithstanding arrangements—you are effectively saying you will leave the European Union. That is what it boils down to.

Mrs May: I put what I said, Sir William, in a very particular way.

Chair: I know you did.

Mrs May: Of course, putting a party political hat on rather than a collective Government hat on, as the Conservative Party, we have a commitment to be looking at the reform of the European Union and renegotiation of that relationship.

Chair: Let us hope it goes as deep as you are suggesting it could.

Q42   Mr Clappison: Can I welcome what the Secretary of State for Justice said in response to my earlier question, about watching the European Court of Justice, in his words, like a hawk? But on top of the concerns that the Chairman has expressed about exclusion orders and the possible effects of all this on them, can I raise with you a case in which it would appear that the Charter of Fundamental Rights has permeated into our law? This is the case of ZZ v. Secretary of State. On 7 April, the Supreme Court, constrained by the case law of the European Court of Justice, refused the Government permission to appeal this judgment—the case of ZZ—and in that case, the Charter was applied by the Court of Appeal in accordance with the case law of the European Court of Justice in a way that weakened national security procedures relating to immigration, something that people might find of particular interest and concern just at this moment. Is there anything that can be done about this, Secretary of State?

Chris Grayling: I will ask the Home Secretary to say a word about the ZZ case in a moment, because it is a Home Office lead on that particular case. I do think it is a matter for concern. Fundamentally, the difficulty is that if we give to a court an unlimited jurisprudence, with little or no democratic override, you create a situation where decisions will be taken where the jurisprudence will develop mission creep into new areas that will leave us, as a nation, unable to do things about court decisions that materially affect us. That is why I have said that my personal view, and my party view—but not my coalition ministerial view—is that we need to change completely our relationship with the European Court of Human Rights, and deal with that issue. It is why I absolutely believe that the issue of being able to protect our national interest is going to have to be a part of the negotiation we have with our fellow member states over the next couple of years. It seems to me that that is the most important part of maintaining national sovereignty. Does the Home Secretary want to say a word about ZZ?

Mrs May: Yes. I am hesitating in terms of how much I can say in this forum about this, but it was remitted to the Special Immigration Appeals Commission, and the matter has been considered by them. The substantive case took place there in December, and we await the judgment on that particular case.

Q43   Chair: Can I say with respect to what James Clappison mentioned, and the response that the Justice Secretary gave us, that the Lord Chancellor is an equally important post, if I may say so, in the circumstances? You did refer back, again, as you often do in these discussions and exchanges, to the implications for the European Court of Human Rights and the issue of the Human Rights Act. I just want to emphasise the fact that we are dealing with completely different territory with the Charter.

Chris Grayling: I do understand that.

Chair: I am not suggesting that you were dodging the issue, but you elided it, and I would simply say that the implications for the Charter—you quite clearly indicated earlier what you would prefer to see—is something that is really before you now. It is before the Government; it is before the United Kingdom; it is before the United Kingdom’s Parliament, and where there is a difference in the outcome of decisions that are taken by this House, by the people who are elected by the voters to make decisions through legislation that would be enforceable by our own Supreme Court, those are upstaged and scuppered—to use the Home Secretary’s own words—by the Court of Justice. The Charter applies in a similar framework of law, and thereby effectively puts us into an impossible position, in terms of policy making in our vital national interests.

All I can say to you is that I do strongly suggest that you get down to the business of making a decision about it, and do not just leave it—if I may suggest, going back to what the Home Secretary has suggested—to wait until we might have some form of discussion about the list of things that could, or might, be repatriated. This is a decision that can be taken now by this Government at this time, and I am really surprised, in the light of present circumstances, that there is such a reluctance to deal with it as it stands, but there we are. We shall continue our discussions on this, and the implications of what I said about the exclusion order may help to concentrate minds a bit.

Q44   Jacob Rees-Mogg: My question really follows on from this, as to whether the Charter might make it harder to restrict EU migrants getting in‑work benefits. I am thinking of Article 21, regarding prohibition of discrimination on grounds of nationality, and Article 34(2), regarding entitlement to social security benefits and social advantages for everyone residing and moving legally throughout the EU. Is this going to become a higher political priority?

Chris Grayling: It is a genuine issue, as you describe. Fundamentally, we need to be able to protect our national interest. If the Court is really using the Charter to rewrite the rules agreed by member states, then the member states and the United Kingdom will have to respond to that. I absolutely accept what Sir William says, and we have to look at that very carefully, and I will ask the Home Secretary if I can take a look at her legal advice as well on that particular situation. We cannot have a situation where the laws of this land are being rewritten by an international court, and where we have no ability to do anything about it, in areas that are as sensitive as you describe.

Chair: Although you may not know this, I did write to the Prime Minister on 18 November—that is, 10 days before the speech on immigration was given—with a very detailed analysis of the implications, both with respect to treaty change and the implications of the Charter, with respect to the proposals as we understood they were likely to be deployed in that speech. I have to say that, because I was aware of how much was at stake, I also suggested in that letter that he might like to take the advice of the Attorney-General and the legal advisers of the various Departments that were involved in all of this in order to be sure that we did get the right answer.

Now, after that, of course, I am not in a position to tell you what was done on any of that, but I am extremely happy to send both you and, particularly in this context, the Justice Secretary a copy of the letter I sent to the Prime Minister. I do think it is important that we all have a clear idea, as we speak now, about the implications of the matters that were in that speech and the implications for treaty change. I will send you a copy of it so that you can have a look at it, and maybe you can take advice from your own legal advisers on it, as well.

Q45   Geraint Davies: What is the Government’s understanding of the ruling of the Court of Justice on 18 December that the draft agreement for EU accession to the ECHR is incompatible with the EU treaties, and what are the implications of the Court’s opinion for the accession process?

Chris Grayling: If you cut through all of the judgment, you come down to a simple proposition, which is that the ECJ is unimpressed by the idea that it will become a junior court. The truth is that that is precisely what the accession to the ECHR does. Ironically, from a very different route, the ECJ have reached the same conclusion that I have about the ECHR. Now, the ECJ have reached it on the basis that they want all the power themselves; I do not agree with that bit but, at the end of the day, the current situation means that in many respects the European Court of Human Rights has become our supreme constitutional court.

Because it has an unlimited jurisprudence, and because it can interpret different aspects of our daily life as being affected by human rights laws, it has a legal blank cheque to decide different things in different areas in the way that it chooses. That Court has been very clear—indeed, its President said so recently—that it sees itself as the ultimate arbiter. It believes that Parliaments and other courts should follow its rulings, and fundamentally what has happened is that the ECJ has said they do not like that very much, because of a very clear situation where two member states end up in a case in the European Court of Human Rights, on a legal matter related to European law, and it is there that the decision is taken, rather than the ECJ.

The whole process of the European Union acceding to the ECHR convention has been put into some degree of chaos by this judgment. We are waiting to see how the Commission responds. It is worth putting on record one thing, though: I am clear that any arrangement—either a modification of the current proposals, or a revised version of the current proposals, for the EU to accede to the ECHR—cannot, and should not, affect our relationship with the Council of Europe and with the Court, and particularly should not preclude this Parliament from taking decisions about its relationship with the European Court of Human Rights. That is immensely important, and that is something that we would regard as being absolutely sacrosanct in giving our consent to it. The Lisbon Treaty accepts that the European institutions should be subject to the rules of the ECHR, but if it changes our national relationship, that is a very different question. It would be unacceptable for me to see our relationship with that Court fundamentally changed as a result. But at the moment, the process of the European Union acceding to the ECHR has been set back some considerable way.

Chair: On that question, as you probably recall, there have been statements made by members of the European establishment as to the necessity for them to continue on their trajectory with respect to the European Court of Justice. The reality is that there is a continuing clash of opinions with what we think in this country, not just from this Committee, or from certain members of it—in case anyone gets that misleading impression—but from our very senior judges as well. There is a whole stack of extremely important speeches that have been made by Lord Judge, Lord Sumption, Lord Mance and various others, who have made their position completely clear on the questions that we are now discussing.

It is really the whole of the United Kingdom, its Parliament, and its judiciary—not every single person, but certainly an increasing number of people—that are taking the kind of line that you just expressed, and it obviously cannot go on much longer. So, from a practical point of view, we trust that there will be some resolution of this sooner or later, and sooner rather than later would be the preferred option, because we cannot wait indefinitely.

Q46   Kelvin Hopkins: On 19 November, the Government told the Committee that, in the context of the negotiation of the proposed general data protection regulation, the UK “objected in principle to the use” of partial general approaches agreed at the June and October Justice and Home Affairs Councils, and therefore they did not support either. But the Home Secretary, by contrast, in a ministerial statement of 10 December, told the House that at the December Justice and Home Affairs Councils, also attended by the Justice Secretary, another partial general approach was agreed, and that “a majority of member states, including the UK, agreed the deal”. Such agreement, falling within the scrutiny and reserve resolution, has triggered a scrutiny override. It seems, therefore, that the Government objects in some cases in principle—so they say—to partial general approaches, and in other cases, does not, as has recently been illustrated by another case: the negotiation of the proposed general data protection regulation. What is the Government’s policy? Is it in principle?

Chris Grayling: There are quite a lot of European things I, in principle, object to, but I am also a coalition Minister as opposed to simply a Conservative Minister, and so therefore I have to be mindful of overall Government strategy. If we take, first of all, the overall approach to partial general approaches, I do not like them, and I do not generally support them. I have been very clear in saying to the Council that I do not think they are a satisfactory way of proceeding.

At that particular meeting—the last European Council—we had seen the text of the data protection regulation take a significant step in the right direction after extensive negotiations. This has been the most unbelievably complicated process; it has been going on since before I was Secretary of State, and it is still going on and it is still not in sight of completion. You have to, on the day, apply a bit of diplomacy, and my judgment was that quite a lot of work had been put in place by both the Commission and the Presidency to try to get that piece of text to a point where it was in much better shape. I simply judged, with the arrival of a new Commissioner and with a new Presidency about to start—at the end of the previous Presidency—that there are moments where, if the EU is doing the right thing, we probably help our national interest better when we have to try to combat difficult things if we say if something has been done okay. That is why I took the decision at the Council that on this occasion, whilst I do not like partial general approaches—and if you look at my remarks on that day, I said that I did not normally support partial general approaches—it had made genuine progress, and therefore I let it through on that day.

Q47   Kelvin Hopkins: The whole idea of partial general approaches, it seems to me—I think other members of the Committee feel the same—is opening a barn door and letting the horse bolt.

Chris Grayling: Not really. A partial general approach has no final substance, because nothing is agreed until everything is agreed, in this particular case. It is no more than erecting a signpost saying, “Okay, we have made some progress.”  Normally, it is something that is just an excuse to say, “We have tried hard and not made much progress, but here is something we have done.” In this particular case, I thought that our negotiating team, the Commission and the Council had made genuine progress, and I thought it was pretty churlish for the UK to say, “Well, we are going to vote against it.”

Q48   Kelvin Hopkins: Rowing back from a partial general approach once agreed must be virtually impossible, I would think. The decision is effectively being made, whatever happens after that.

Chris Grayling: Up to a point. You can do, because it is not all agreed until it is agreed. It is the totality that has to be ultimately agreed. It is no more than saying, when studying a document, “We like paragraph five; that is fine, and we will tick the box on that.”  We still do not agree the whole document until the whole thing is agreed.

Q49   Kelvin Hopkins: Should the Government not change its policy, then? It is objecting to something in principle, except when it does not disagree with it. It really seems to be contradictory. Should the Government say, “Well, actually, what we said on that occasion no longer applies; we agree to them when they are all right, but not when they are not all right”?

Chris Grayling: I do not like using partial general approaches, because I think they are window‑dressing and meaningless. There are just moments when I judge it is not in the interests of the United Kingdom to vote against something for the sake of voting against it. Politics, and government, is about pragmatism. There are just some occasions when for reasons of pursing the interests of the United Kingdom it is worth saying, “Okay, on this occasion, I will let this go, because I think we have made good progress.”

Q50   Kelvin Hopkins: The words “objected in principle” seem to me to be pretty absolute. If I object to something in principle, I do not say, “except when it is all right”.

Chris Grayling: I am not sure that, if you had been in my position, you would have done anything different on the day.

Q51   Kelvin Hopkins: That is a particular case, but the wording, “objected in principle”, is where the problem lies, surely. Should the Government not change its wording and say, “Well, we do actually accept them from time to time”?

Chris Grayling: I do not expect to do it very often. I think, in principle, they are a waste of time, but there are moments when you reflect the circumstances when something is harmless. The problem with partial general approaches is that they do not do anything, because they do not agree the final document. Therefore, to build up some great crescendo and say, “We have agreed a partial general approach,” is not terribly meaningful, and that is why I object to them as a tool. But, as I said, if you are dealing on the day with a new Commission, a new Commissioner, and genuine progress made on a bit of text by all of those involved, just voting against it at that moment in time seemed inappropriate.

Chair: You said, Justice Secretary, that you do not much like partial general approaches. You also, in that context, while you were explaining it, mentioned the role of the coalition. Of course, just as you do not much like partial general approaches, I think it was Disraeli who said, “England does not love coalitions.”  That was a pretty sound statement at that time, and it has been borne out for some of us by some of the outcomes of the coalition itself.

In conclusion, I would just like to say that we are holding a number of inquiries. There is this one today; we have got the Minister for Europe and Mr Ivan Rogers coming next week. We also, on the same day, have the new chairman of the BBC Trust to explain the context in which the BBC provides its role with respect to European scrutiny and European matters and legislation, and we therefore have got quite a busy time. I will only say this: it has been interesting to hear what you have to say. We do not resile from our criticisms, but you have answered the questions that we have put to you, and no doubt we will be looking for an improvement in the manner in which these matters are held in future. But thank you very much for coming.

              Oral evidence: Scrutiny of EU Business HC 507                            4