Item 2 is an evidence-taking session on European Union engagement and the United Kingdom Government’s 2014 EU opt-out decision. I welcome to the meeting Roseanna Cunningham, the Minister for Community Safety and Legal Affairs, and Government officials: Neil Rennick, deputy director, law reform division; Danny Jamieson, policy manager, criminal law and licensing division; and Alicia McKay, legal services.
Minister, I understand that you wish to make a short opening statement. Please feel free to do so.
Thank you, convener. As this is quite a technical exercise, I thought that it might be helpful to spend a few moments on context. I know that the committee has already received written evidence from the Cabinet Secretary for Justice, but I thought that it would be useful for me to make some opening remarks.
We have known since the Lisbon treaty was agreed in 2009 that a final decision on UK participation in around 133 justice and police co-operation measures needed to be taken no later than 31 May 2014. I should highlight at the outset that this part of the treaty, which is commonly called protocol 36, deals only with pre-2009 justice and home affairs measures—a frozen corpus of EU law, if you like—and not measures agreed under the new legal bases provided by the treaty. The UK has the separate ability to choose whether to opt into individual post-Lisbon-treaty justice and home affairs measures on a case-by-case basis.
For pre-Lisbon measures, the UK must exercise a block opt-out, but it can choose to opt back into specific measures. The five-year window following the Lisbon treaty provided ample opportunity for the UK Government to engage with devolved Administrations on whether to exercise the block opt-out. In April 2012 and again in August 2012, Scottish ministers wrote to express our strong interest in the potential implications of the decision for Scotland’s devolved justice system and to state clearly our strong preference to remain fully opted into these measures.
The pre-Lisbon-treaty justice and police co-operation measures—the so-called third pillar—include some elements that are defunct or have limited impact. However, they also include measures that are of very significant importance in investigating cross-border crimes and bringing serious and organised criminals to justice. Those measures include the European arrest warrant; provisions relating to membership of both Europol and Eurojust; and joint investigation teams and the sharing of information and intelligence.
The view taken by Scottish ministers, as well as police, prosecutors, legal professionals, academics and a House of Lords European Union Select Committee inquiry, was and remains that the benefits of opting out of defunct or ineffective pre-Lisbon measures do not justify the risk of losing those measures that are essential in tackling cross-border crime.
Unfortunately, UK ministers did not consult Scottish ministers or Scottish justice agencies ahead of the initial announcement of their plan to exercise the block opt-out from the 133 measures or their subsequent decision to seek to negotiate with the European Commission and EU member states to opt back into 35 measures. UK ministers formally confirmed their decision to exercise the opt-out ahead of 31 May 2014.
Our priority now is to seek reassurance from UK ministers about the negotiation process and, in particular, that there is no gap between the opt-out decision taking effect from 1 December 2014 and the UK opting back into the 35 measures. As the Cabinet Secretary for Justice indicated in his letter to you of 18 February, he wrote to UK ministers last month, seeking an update on the negotiation process and reassurance about any potential gap.
I can update the committee that UK ministers have now replied. They have stated that, for their part, they place a great deal of importance on avoiding an operational gap and believe that it is in everyone’s interest to reach an agreement that provides operational and legal certainty. They have also reported that other member states agree that it would be beneficial to conclude matters swiftly and that negotiations with them and the Commission are in process.
We will continue to press those matters with the UK Government. In that connection, Home Office minister Karen Bradley has offered to come to Edinburgh for discussions with Scottish ministers. We are minded to accept the offer, but because that information has only recently reached us it is too early to give a date for that meeting.
I will be happy to answer any questions that the committee might have about the opt-out process.
Before I call Roddy Campbell, our EU reporter, to ask questions, I wonder whether you can give examples of how the European arrest warrant operates when it is issued from Scotland and when it is issued from a European jurisdiction. One of the key issues about its effectiveness is not only how it is served but the speed at which it can be operated. It would be quite useful for the committee to know about the European arrest warrant process.
Scotland’s experience of the European arrest warrant seems, on the face of it, to be quite different from the experience south of the border. We are not seeing the issues and concerns that are being raised south of the border; we are not seeing its being used in any trivial way by either side or any other difficulties with it. Our experience of the European arrest warrant has been largely positive, and it is fair to say that most of the practitioners south of the border are happy with it. I do not think that the concerns about it south of the border are coming from the people who are using it, and practitioners in Scotland have expressed no concerns at all.
That said, it is difficult for me to make a comparative assessment, given that we are dealing with the issue only in the Scottish context. From our perspective, the warrant works well. I can give a couple of examples of when it has been used.
That would be good.
I should say that because they do not necessarily reflect what is happening south of the border, I cannot make a comparison.
In 2008, a chap called Marek Harcár was arrested within one day of an extradition request being issued and was returned swiftly to Scotland from Slovakia to face justice for the murder of Moira Jones. The warrant allowed clothing and other property to be seized from him before he could destroy it, which helped to lead to a successful prosecution. It is the speed of extradition that is important, and the fact that there is no long, drawn-out process to achieve it. The extradition might previously have been achievable in other ways, but not at the speed at which the European arrest warrant allowed it to take place.
When, in January 2012, a violent attack and murder took place in Edinburgh, Grzegorz Gamla was arrested within five hours of the issuing of the arrest warrant. That was achieved through the EAW system but was also facilitated by direct contact between Scottish prosecutors and the authorities in Poland under the European judicial network. Although that is a different issue, it is germane to this particular case.
That couple of cases shows how the ability to act incredibly swiftly under the arrest warrant allowed the criminal process to proceed much more quickly than it would otherwise have proceeded.
Your comment about the need to preserve evidence is interesting and helpful. One might not have immediately thought of that.
Good morning, minister. Are there up-to-date figures for requests to use the European arrest warrant in Scotland? Do you know the number of warrants that the Scottish Government has sought?
I have information for 2012 and 2013 from the Crown Office’s international co-operation unit. Do you want the 2013 figures or the comparative figures?
Both, if it is not too much trouble.
To be honest, it looks as if there is not a great deal of difference.
On incoming requests—in other words, the cases in which we receive warrants—there were 152 in 2012 and 149 in 2013, with 101 arrests made in 2012 and 102 in 2013. The number of surrenders relating to incoming requests—I assume that that means cases in which the individual gets handed over or whatever—was 89 in 2012 and 121 in 2013. I also have information about hearings and appeals.
On outgoing requests for assistance—in other words, cases in which we send requests elsewhere—there were 32 in 2012 and 25 in 2013. There were seven returns to Scotland in 2012 and 12 in 2013.
Certainly, we get more requests than we issue. However, you would expect that, given that we are a jurisdiction of 5 million compared with the entire population of the rest of the EU.
I do not want to speak for those south of the border but I know that they take the view that the balance between incoming and outgoing requests, which looks fairly similar to the balance here, is to the justice authorities’ disadvantage.
You will appreciate that we do not have the figures, but, to be honest, I imagine that almost any jurisdiction in the EU will have a similar imbalance, given that outgoing requests emanate only from that jurisdiction and incoming requests potentially come from a huge number of places. Our position is that such an imbalance cannot invalidate the benefit that we get from the European arrest warrant.
My understanding is that the European judicial network is about information sharing as much as anything else, and that it is quite a useful tool. I take it that, in discussions that you might be having with the United Kingdom Government about this issue, you will be making the case strongly for continued participation in the network.
We are making that case quite strongly. The European judicial network is the one outstanding issue on which the Lord Advocate genuinely feels that there is enormous benefit to be gained by continued engagement. We view with some concern the possibility that we would have to revert to some informal process if the membership of the European judicial network does not continue.
There is a tendency to forget that a lot of the core processes are about small, bureaucratic things and bits and pieces of administrative business that have to go back and forth. I can give you an example of how the European judicial network has made a big difference in that regard.
There was a case in July 2013 in which an essential witness in a High Court prosecution had returned to Poland and had refused to come back to Scotland to provide evidence in the trial. The Crown Office was advised on 2 July that the person was not coming back, and the case was due to call on 5 July, at which point the Crown Office would have to give some indication to the judge about how it was going to proceed in the case. The Crown Office was advised that the witness resided in a particular town in Poland called Pila. Through the Polish EJN contact point, it was possible to establish that it would be possible for evidence to be submitted via videolink. Any request for a videolink had to be sent to the court in Pila, but it turned out that the courts there did not have the capability, which meant that the link would have to be established in a court in Lódz.
The Crown Office was able to get contact details for the relevant persons in both courts, which allowed it not only to advise the judge of its intentions on 5 July, but to prepare the necessary petition and letter of request and present them before the court on the same day.
10:15In summary, the Crown Office was advised on 2 July that there was an issue with the witness, and it was able to go to court in Scotland on 5 July and say, “We have resolved the witness difficulty by the following means, and here are the formal papers.”
The view of the Lord Advocate and the Crown Office on that type of case is that, without the assistance of the contact points for which the European judicial network provides, that would not have happened. It would be unlikely that such information would be available before the trial, let alone at the preliminary hearing.
People have a tendency to forget about such things. A criminal trial involves not only the circumstances that arise in the court room on the day, but a whole set of small things that have to happen to get it there. It would be entirely possible for informal contact to be maintained, but contact details would quickly become outdated. Members will know from their contacts here how quickly people move and phone numbers and job titles change.
Many EU member states have federal structures, and anyone outside who was looking at the UK would have to deal with two different legal jurisdictions. Having a formal contact point in Scotland would be very important for anybody who was looking at what we were doing. Without the network, they would have to fall back on making ad hoc arrangements; there is no doubt about that. Those arrangements would have to be agreed bilaterally, but that would be entirely a matter of good will, which, given the UK opt-out, might not uniformly exist. As the arrangements would not have the backing of an EU instrument and the structure that it would provide, there would not be the same incentive for the other parties to maintain those arrangements and keep them in good order.
There is a tendency for people to think that the European judicial network simply involves people having natters and chats with one another but, in fact, it deals with practical issues that require to be resolved from time to time, given the free movement of people throughout the EU, and it is important—certainly from the Lord Advocate’s perspective—that it is retained in Scotland.
Any further information is probably better obtained directly from the Lord Advocate, as he will be able to give the committee chapter and verse. However, I have outlined the position that he would take, and we certainly support the Crown Office’s stance.
The Lord Advocate makes plain in his letter to the committee that it remains his position that he wants to keep the European judicial network measure among those measures that are opted back into.
I will move on to the important issue of transitional arrangements. One of the points in the House of Commons European Scrutiny Committee’s report reminded me of the current debate on articles 48 and 49 in relation to Scotland’s position in Europe. That committee’s view was that
“the earliest date on which the UK may formally notify its request to rejoin individual measures subject to the block opt-out is 1 December 2014”.
However, the UK Government’s position seems to be that it wants a seamless transition and has therefore started negotiations now. It has expressed the view that
“If there is to be any gap, and our starting position is that we do not believe that there need be, the Government will work to ensure that the transitional arrangements foreseen under Article 10(4) of Protocol 36 are such that measures continue to apply to the UK during that period.”
Can the minister or her team give us a bit more guidance on consideration of the transitional arrangements and tell us how much of a problem a seamless transition is likely to be?
We have considerable concerns about the transition, which is why we have shifted our focus to ensure that it is kept as smooth as it can be.
The issue of the European arrest warrant arises, as we have already discussed. Even if the UK goes back into a reformed or changed system, the intervening period in the event of a transition will not be as simple and straightforward as people imagine. It would be possible to revert to the previous, more cumbersome extradition process, but some countries have effectively ruled that out with their own constitutional changes, so it would not always be the case that another party could revert in the way that we are talking about.
The danger is that we would end up needing to set up a lot of temporary bilateral arrangements in order to deal with a transition in which there was a gap, so our principal concern is to ensure that there is no such gap. When she comes, we will try to impress on the Home Office minister that the most important thing from our perspective is not to have a period of time when there is that level of uncertainty and confusion.
From the letter that you read, I did not take it that the Home Office minister was saying that she had an unconditional agreement with 27 other member states that that would not be a problem—I just took it that she was discussing the matter. Is that right?
We have had a letter, which arrived only at the end of last week, so we are not really in a position to elaborate much more than I already have done, other than to say that we intend to take up the offer of a meeting. It is important for us to do that so that we can make our position quite clear as quickly as possible. Because we are not party to any of those negotiations, it is difficult for me to make any kind of assessment of whether a successful outcome can be achieved in the timescale that is hoped for. That information is well outside my knowledge.
The UK Government has said that the process is complex and that there are a lot of technical and process issues that need to be resolved. It believes, from its initial discussion with other EU member states, that there is a willingness to resolve the matter as quickly as possible and to avoid a gap, but discussions need to happen both with the EU member states and with the Commission itself. It is not clear from our point of view what stage those discussions have reached and whether any assurance has been received on the point that you raised about whether the UK could have an opt-out that would apply from 1 December and then instantly opt back in to the 35 measures. That is a key issue that we have been raising with officials, which the minister will want to raise with UK ministers as well, to get an assurance on.
I assume, minister, that you would have no problem with sharing the outcome of your discussions with the committee so that we can monitor that.
None. It would be for the committee to decide how it wants to pursue the matter. As I said, we do not yet have a date for a meeting and I do not know when the UK minister will be in Scotland, so there is a degree of uncertainty at this stage.
Parliamentary scrutiny plays an important role in any process, and the committee has expressed some reservations in the past about timeframes for legislative consent motions. The issue that we are discussing today is being looked at by four UK committees, including the European Scrutiny Committee, to which Roddy Campbell referred. That committee cited in its report
“the reluctance of the Government to provide Parliament with the information it needs, at the time it needs it, in order to gain a proper understanding of the legal, policy and operational implications of the block opt-out, as well as the procedures determining which measures the UK will be able to rejoin.”
Are you having any discussions about the broader issue of how the UK Government engages with the Scottish Government to prevent a repetition of that sort of approach?
At a Government level, that is rather above my pay grade. My portfolio is concerned with matters relating to justice and we have made our position quite clear in respect of that issue and our concern that we were not involved or consulted, Government to Government. It is difficult for the Scottish Parliament to exert any kind of scrutiny function on an issue when the Government itself is unclear as to what exactly is happening, and it is hard for me to advise the committee on how to proceed in those circumstances. I can only tell you what I know, and at the moment what I know is not a huge amount. It is a difficult question for me to answer.
There are scrutiny issues. They might initially be seen to be principally for Westminster, but of course justice matters are important for the Scottish Parliament, too. In a sense, we are at some remove from where the decision-making process takes place.
It is fair to say that the decision on the opt-out is a one-off that is separate from the on-going arrangements that the minister mentioned, through which we have had engagement with the UK Government on the opt-in decisions on the post-Lisbon treaty measures. In general, although there are always debates, there are fairly established procedures for dialogue with the UK Government. In general, we have a reasonable amount of time to see what is coming down the track and to speak to the UK Government about it. The decision on the opt-out is a separate process that is outwith those normal arrangements.
There is relatively regular and on-going interaction between officials south and north of the border. Because of the nature of what we are talking about, the issue has been elevated a bit beyond that. From the point of view of Scottish parliamentary scrutiny, it is for the committee to decide how best to proceed on that.
So the issue is pure politics at UK level.
It is hard for me to say whether it is about politics or whether it is simply the UK Government’s view that the decision is for it to make. On this occasion, it did not even see the necessity to consult. We are concerned because, obviously, the UK Government knows that there are two separate legal jurisdictions in the UK and therefore that decisions that are made at UK level ought to take that into account. In this case, that does not seem to be happening.
There is no dubiety, in that the Lord Advocate and the police have made their position clear about the downside of the existing arrangements not continuing.
Absolutely. We have done so at ministerial level, too. The UK Government is in no doubt as to what our view is.
It is fair to say that there has been criticism from four Westminster committees, the Northern Ireland Administration and other stakeholders about the general handling and level of consultation and information on the specific decision on the opt-out.
The Home Affairs Committee was fairly critical of aspects of the European arrest warrant. For example, it stated that the warrant is
“based on a flawed assumption of mutual trust in the standards of justice in other Member States”
and
“has facilitated miscarriages of justice in a number of cases”.
Is the Scottish Government aware of any cases involving Scottish citizens in which there has been a miscarriage of justice because of the use of the EAW?
10:30
No such information has been given to me about specific cases in which we would feel that miscarriages of justice have applied to people from Scotland. I read out the figures—obviously, fewer folk are being sent from here to elsewhere. I mentioned some cases in which we were able to bring people here or deal with a scenario. In another case, we were able to swiftly send somebody back to Poland when they were accused of murder there. However, I have not been given any information that suggests that prosecutors, the police or anyone else feels that the arrest warrants that they receive are in any way about trivial matters or things that they would not want to take seriously. It appears that there are big differences north and south of the border in that regard. We are just not seeing that issue as a concern.
The potential for miscarriages of justice might arise whether or not we have the European arrest warrant. Such issues could just as easily have arisen under the previous formal extradition process. Questions of miscarriage of justice bedevil all such processes; they do not apply particularly to the European arrest warrant in the way that was suggested in the comment that you read out. It is just not our experience that the concerns that you raised apply.
It has been suggested that the EAW could be improved from within the current framework directive. Is that possible, and is there a case for doing that?
Yes. I assume that that is the case, although I have not looked at the technicalities of the EU processes for doing so. Our preference would have been to have acted from within the framework, which would have avoided the difficulty of a potential gap. There is a clear and distinct difference of approach and opinion on the matter.
I imagine that the European arrest warrant is used only for indictable offences. Is that right? Is it just for crimes that go to the High Court?
No, it can be used for a wider set of crimes, but the case has to be made that that is justifiable.
It can be used for lower-level crimes and not just High Court crimes.
Yes, it can be.
The information that we have is that it is relatively rare to get a European arrest warrant for something that would be considered very trivial or low level. That is not to say that that will not happen occasionally.
However, broadly speaking, it is for serious offences.
Yes.
Will you comment on what the Lord Advocate said about the potential for a gap and his fear about the costs attached to the transition? He said:
“Under the Lisbon Treaty the UK would be required to meet the cost of any financial implications to Member States.”
Will there be costs for Scotland, too?
We are making it clear that if there is a cost that relates to the potential transitional changes, it should not be borne by us, given that it was not our decision to be in this position—and it is a position with which we do not agree. I cannot elaborate beyond that; I do not know whether the officials have more detail. There might be a financial cost, because the UK would have to bear the cost of the transition, but we would strongly resist an attempt to apportion costs to Scotland, given that we did not want, ask for or agree with the move.
The UK Government has not provided a financial analysis of the implications of different options. Its officials have said that they do not think that significant financial costs will be associated with the measures that the UK is opting out of, as opposed to the measures that it hopes to opt back into. We have not had clarity from the UK Government on whether that position would change if there were a gap that caused significant difficulty.
From my reading of what the Lord Advocate said, he is concerned that we would have to meet the costs not just to the UK but to other member states. It is difficult to know what the costs would be.
The Lord Advocate also said that the transition period could be a problem, which
“would be most keenly felt with the Republic of Ireland.”
I understand that there would be an issue in relation to the Republic of Ireland and Northern Ireland, but would there also be an issue for Scotland? Are there a lot of cases between the Republic of Ireland and Scotland?
I do not think that I have specific cases that relate to other specific jurisdictions. I think that the Republic of Ireland is one of those member states that have replaced the previous convention on extradition with the EAW. The Republic of Ireland would have no extradition process to revert to if there was a transition. Therefore, the Republic of Ireland would be one of the countries for which a temporary bilateral treaty would be required to cover the transition period. I do not know whether a discussion is taking place about drafting a bilateral treaty at the same time as we are progressing, or whether that would happen only if we ended up in a transition period, in which case the transition would create a gap. That will be of particular concern if there are any live proceedings in either place as any live proceeding that got caught in the transition might be an issue.
We have heard about the lack of consultation in talks between the UK Government and the Scottish Government, and even the relevant House of Commons committees are not happy about what is going to take place. However, I wanted to touch on a point in the letter from Police Scotland, which perhaps links back to the point that Christian Allard raised about costs. Police Scotland says that if we opt out,
“it would significantly impact upon the operational effectiveness of law enforcement agencies and place our communities at an unacceptable level of risk.”
I am pleased that the minister mentioned that a UK Home Office minister is going to come up—is it Caroline Bradley?
It is Karen Bradley.
However, we do not have a timescale or a date for that and we do not know exactly what is going to happen. To come back to the point about placing
“our communities at an unacceptable level of risk”,
you mentioned how quickly an EAW could take place—in a couple of hours, even. What are the risks to our communities if we do not manage to go forward seamlessly in a transitional period with regard to the EAW?
I gave some evidence earlier on the ability to move very quickly that is provided by the EAW system. In one case, the assessment was that, without that ability, the prosecution simply would not have had the evidence that it did have at the trial. Arguably, one could say that, without the ability to move as quickly as that, trials could proceed without all the necessary evidence—who knows what impact that lack of evidence could have? That is before we talk about whether we can even get the accused into court.
Anything that impedes the proper and speedy administration of criminal justice is a concern. In most cases, the criminal activity—whatever it is—will already have taken place. That aspect of it is done. The question then is whether we can take subsequent measures in respect of an accused and all the witnesses to make that aspect of the justice system work effectively. The deputy chief constable and the Lord Advocate are saying that that part of the process will not work as effectively if we do not have access to the EAW and indeed, in their view, the European judicial network.
Just to pick up on the type of crime, at the moment there are horrific crimes of human trafficking. Mr Rennick says that the EAW applies to various types of crime, if not all crime. Would not having the EAW have an effect on the ability to bring people back who have trafficked folk in?
It would have an effect. If we are in a transition period and somebody goes to Ireland, the capacity to bring them back from Ireland will be made much more of a problem than it is under the EAW. That problem will vary from jurisdiction to jurisdiction. In some jurisdictions, a bilateral transitional arrangement might be easier to set up, but Ireland is a country that has, in effect, expunged the previous extradition arrangements from its constitution and operates entirely through the EAW. For jurisdictions such as Ireland, a transition creates a big concern—I presume that we would have to be talking about having bilateral treaties to cover a transition period. I do not know how the process will work, how long it will take and whether it is achievable within the required timescales. We would have to say that there is the potential for a breakdown if we cannot get the issues sorted within the required timescales.
The two risks that the police here in Scotland and down south raised over the European arrest warrant are that we would not be able to bring people back from abroad who had committed crimes here and that foreign criminals, who might have been accused of very serious crimes, could be at large in Scotland but we would not be able quickly to identify them, arrest them and send them back to the country where they committed the crime. There is a double risk of undermining justice here and having people who are undesirable within Scottish society until we can find an appropriate procedure to send them back.
I have a tiny follow-up question, convener.
I like your hand gesture to indicate that the question is tiny.
Yes—my question is just a tiny one.
Could all the work that has been done to get agencies working together, particularly on trafficking, fall apart because the transition does not happen in time?
If there is a gap, it will affect anything and everything that is caught in the gap—from high to low-level crime. Would that include human trafficking? Yes. The gap is the problem. If there is a serious gap, it will affect all cross-border crime to a greater or lesser extent. In some cases it might not be such a big deal, but in other cases it will be.
I will talk about another related issue. The European criminal records information system that has been set up is extremely important. The system interconnects the national criminal records databases of all EU member states. Given the flow of people around Europe now, it is extremely important. Members might remember that when we discussed disclosure certificates, we referred to how we would manage that process when there are people who have come from many different parts of Europe. The system is extremely important not only for the disclosure process but for obtaining complete criminal records for individuals who are charged and are then convicted and sentenced, because sentences often flow from the level of previous convictions that somebody has. For example, a Latvian male was charged with drink driving in Scotland, but his criminal history check revealed convictions for various offences, including rape. Although he was picked up for drink driving, when information was sought about his previous convictions, it was discovered that he had convictions for various offences, including rape, which meant that he could be put on our registered sex offenders list.
These things are often interlinked, so the safety of the public relates not only to arrest warrants and the progress of criminal court cases but to other aspects, such as the exchange of criminal records, which is also very important for people’s safety here. It is obviously very important for us to know whether people who are here are sex offenders, because they should be on our sex offenders list. Removing the capacity to exchange such information will create a situation in which there may be people out and about in our community who we do not know about but should know about.
For clarification, the exchange of criminal records is obviously very important. Is it linked to the European judicial network?
No, that is—
I am wondering how that fits into—
It is another one of the 35 measures to opt back into—we are having to opt out of it, and we are talking about then opting back into it. It is the gap again.
10:45
Yes, it is the gap again, and the UK Government is minded to opt back in on that—but not on the European judicial network.
Yes.
That is the one that is out.
Yes—the European judicial network is the measure that the UK Government does not want to opt back into at all. We have mentioned the European arrest warrant. Sandra White asked about the safety of the public, and that does not just involve the European arrest warrant. The point that I was making is that the gap that is being introduced involves not just the European arrest warrant but the exchange of criminal records. Those things all have the capacity to impact on public safety.
I understand that. I just wanted to clarify how things were in relation to—
It is very technical.
No—we all followed it. We are sharp as tacks here.10:3010:30
Would you explain how the situation could be handled better, so as to avoid any gap in the transitional arrangements—or to avoid transitional arrangements?
Avoiding transitional arrangements would require the UK Government to have everything agreed so that, when the switch-off happens on one day, the switch-on happens the next day. Experience tells me that that is unlikely to be so easily done. There would have to be a 31 December switch-off and a 1 January switch-on. I am guessing that most people might be sceptical as to whether that could be arranged in all instances.
Our main concern now is to do what we can to ensure that that does happen. Even if we are a bit sceptical as to whether it can happen, we should make every effort to ensure that it does. The bottom line is that any gap has to be as minimal as possible. The longer the gap is, and the longer the transition period that has to be dealt with, the more problems are likely to arise and the greater the likelihood of the kinds of things that we have been discussing occurring.
I am not in the driving seat, however. Whether that process takes place expeditiously will not be a matter for me, but it is important that we all bring as much pressure to bear as we can to ensure that things happen as expeditiously as possible.
Our preference would have been not to have the opt-out in the first place. The defunct and frozen measures are—
Defunct.
They are defunct, yes. They are gone; they are like the bits of legislation from the 15th century that are still lying about. The phrase that we use is that it is law that is in desuetude, which basically means that it is no longer practised. In effect, that is what the process is about. In order to expunge those pointless bits, we are having to opt out of the entire thing and then opt back in again. It is a very cumbersome process.
Our view is that it would have been much easier not to have opted-out in the first place and to have allowed those things to die on the vine.
I understand that there was no option, in that the European Commission said that the opt-out must be en bloc. That en bloc opt-out includes the 43 defunct measures that you referred to. There are also 52 measures that I take it the Scottish Government is in favour of opting out of. Would that not have put those measures back in, so that we would have to—
We saw nothing that gave us concern about that. The UK Government was not forced to opt out.
En bloc.
Basically, the position was that, if the UK Government wanted to opt out of some measures, it had to opt out of the whole lot.
En bloc, yes.
It could have chosen not to opt out; what it did was choose to opt out of the whole and then to negotiate opting back into a certain number of measures.
There were other measures that we might have made a stronger argument about, but we are where we are. There is no point in our continuing to make arguments about other measures that we feel we should have retained: the principal—the big one—that will not be opted back into, which we think is of real value, is the European judicial network. However, that is more about the practical politics of where we are now; it does not mean to say that there are not other measures that we would not have argued about had we been involved early on in the discussions.
I understand that, minister, and I think that you have made a strong case to put to Karen Bradley. Can we take some comfort from the fact that it is not in the interests of anyone in the UK, or in the European Union, that there should be such a gap in establishing effective policing and the criminal law?
Obviously, that is in nobody’s interests and we assume that that is what is behind the express determination of the UK Government to achieve the outcome that we have discussed. I am merely expressing some scepticism, because it is a challenging timescale for all those opt-outs. If we achieve a 31 December switch-off followed by a 1 January switch-on, that will be fantastic. If we do not achieve that, I cannot say that I would be horrendously surprised, but it would therefore become an issue. That is why the gap and the transition issues are important—they emphasise the problems that would arise. By keeping those transitional problems to the forefront we further encourage the speedy resolution of the issues, and we hope that that gives some impetus to ensuring that it is all done in a timeous manner.
Could I check the timescale? I think that the UK Government was going to make its position clear early on, before the deadline for opting out, so that those discussions could take place. Could you outline the timetable?
The UK was required to take the decision six months before the pre-Lisbon measures come under the jurisdiction of the European Court of Justice and therefore of the Commission, so it had to decide by 31 May 2014. In practice, it indicated its initial view in October 2012 and then formally confirmed its view in July 2013, so the Prime Minister has written to the Council of Ministers and confirmed that the UK Government will be opting out. In effect, it has already taken the decision to opt out that it had to take by 31 May, and that will now take effect from 1 December.
The issue is whether we can have the opt-out apply on 1 December but instantly opt back in to the 35 measures, and the UK Government clearly hopes that it can establish a process that will allow for that and negotiate an agreement with the Commission and with all the other member states that that can go ahead.
In addition to the UK Government’s lobbying and negotiation, have we considered making any of our Scottish members of the European Parliament aware of the importance of the issue, so that if any of them have the opportunity to take cognisance of the situation they can make Europe aware that it is in no one’s interests to have any gap?
The issue is being dealt with at ministerial and Commission level.
I know that some MEPs are aware of the European arrest warrant issue. As a Government, we would not take it upon ourselves to advise individual MEPs. That is something that the parties probably ought to do.
We have explored the gap and transition. Is John Pentland’s question about something different? I am getting gap-itis.
My question is a simple one. Obviously, the issue is technical and it gives me an opportunity to ask a hypothetical question about a scenario that probably will not arise. If we assume that Scotland has to be independent after the vote in September and that it will become part of the European Union, will we have to come back here and renegotiate?
Interesting though that question is, I will let it stick to the wall, because I do not think that the minister should be required to answer it. It is up to you, of course, minister.
First, we would be talking about 2016. Regardless of the result of the vote in September 2014, until 2016 we will be represented in Europe by the UK Government. A yes vote on 18 September will not change the discussions or the problem of the gap. Regardless of the result in September, the gap will be a potential problem for us in the shorter and medium term rather than the slightly longer term that a post-2016 scenario gives us.
I always give the caveat that a lot will depend on who is in government in 2016 in an independent Scotland. Different parties have different views on their interactions with the EU. The matter will be for the first Government to decide.
I will put to you a question that has not been asked. It relates to the submission from—
Convener—
I beg your pardon.
It is no problem. I cannot talk about the gap; I cannot talk about anything.
I just thought that we had exhausted questions on the gap.
My question was sort of tongue in cheek, but it had a bit of reality to it. Our papers say that the rules changed in 2009 and that member states no longer have the opportunity to opt out, because they cannot reject the full jurisdiction of the European Court of Justice. The question was asked genuinely. My point is that, in 2014, opting in or out is no longer an option. That is what I have read, unless I do not understand it because it is too technical.
Only the vote happens in 2014. Until 2016, we will remain under the arrangements for the UK Government’s participation in the EU. Everything that happens until then will come from the discussion that we are having today.
If the member’s question was tongue in cheek, I give the tongue-in-cheek response that I am glad that he recognises that Scotland will be a member of the EU in 2016.
My question was about a hypothetical scenario.
There you go.
If John Pentland has finished his little foray, I want to—
You carry on; you are the convener.
Nobody has asked about the submission from the Law Society of Scotland, although Margaret Mitchell touched on the issue that is raised. It says that it
“believes that the opt out should not have been exercised”.
It quotes a centre for European legal studies working paper called “Opting out of EU Criminal law: What is actually involved?”, which says:
“The UK’s withdrawal from these instruments would seem to send a negative message as regards the UK’s attitude to law and order, and international efforts to further it. By withdrawing from them, the UK would appear to be telling the other Member States (and indeed its own citizens and the rest of the world) that it considers the forms of anti-social conduct they are aimed at—terrorism, moneylaundering, people-smuggling, cybercrime and so forth—are not so grave as to require international co-operation to deal with them effectively.”
That is just a quote and I am not saying that that is my position, but will you comment on that view? There appear to be good relations—particularly the formal relations through the European judicial network, whose name I keep forgetting. Does opting out jeopardise that co-operation, the joint serious attitude to fast-moving crime such as serious organised crime across member states and Scotland, and the culture of help?
The issue lies behind why we feel that the opt-out should not be exercised. Opting out of measures that are of no further practical use makes no difference, but we are coming out of co-operation on things that continue to be useful and helpful and then going through an entirely artificial process of arguing to opt back in.
I can be drawn on the politics—the officials will have to close their ears at this point. The aim was probably to give a political hit about opting out of EU measures and to make a virtue of the UK Government taking a tough stance in the EU. However, we have to opt back into all the practical stuff because, if we do not, we will create big problems.
11:00We have the consequence of what might have been a political stance. The reality is that we must now handle the practical downside of that decision. I said at the outset that this is not where we think that we should be but, unfortunately, it is, willy-nilly, where we are now, because of the UK Government’s decision.
We must get on with arguing what we can argue within the confines of the decision, which has been made. That is why we have focused only on the European judicial network and not gone over all the other things that we might have gone over. There would be no practical point in doing that now. We will continue to make the argument about the European judicial network and to focus very much on the transitional period, which is the most important thing.
That is a good place at which to stop. We will have a break until 11.10, when the minister will be back for the next agenda item.
11:01 Meeting suspended.