Brexit: UK-EU Security (EUC Report) - Motion to Take Note

– in the House of Lords at 7:02 pm on 7th February 2017.

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Moved by Baroness Prashar

That this House takes note of the Report from the European Union Committee Brexit: future UK–EU security and police cooperation (7th Report, HL Paper 77).

Photo of Baroness Prashar Baroness Prashar Chair, EU Home Affairs Sub-Committee

My Lords, it is a real pleasure to open this evening’s debate, and I am grateful to the noble Lords who will contribute to it. We often talk about bringing expertise to bear when we explain what this House has to offer. That expertise will be very much in evidence this evening when we hear from a number of former practitioners, including: two former commissioners and a former deputy assistant commissioner of the Metropolitan Police; former Home Office Ministers and advisers; former Members of the European Parliament; a former justice of the Supreme Court and my distinguished predecessor, the noble Lord, Lord Hannay. I thank the members of my sub-committee and its excellent clerk, Julia Labeta, for their hard work and commitment in ensuring that the report was produced in time for consideration.

In their White Paper The United Kingdom’s Exit from and New Partnership with the European Union, the Government emphasise that,

“The safety of the UK public is the top priority”,

and that must be right. It is also why we chose to look at police and security co-operation as the first of our Brexit-related inquiries and explore the options available to the Government for retaining or replacing them when the UK leaves the European Union. We wanted to make a constructive contribution to the development of the UK’s negotiating position and inform both parliamentary and public debate.

In view of the importance that the Government attach to the security and police co-operation aspects of the UK’s withdrawal from the European Union, we were very struck by the fact that in the referendum campaign these had not received the attention they deserved from either side. It is tempting to regard this as a technical subject that can be left to the practitioners. The evidence we heard during our inquiry left no room for doubt that the European Union tools and institutions used by our law enforcement agencies are integral to the day-to-day work of police forces and prosecutors up and down the country. What is more, the nature of the threats we face, particularly from terrorism, has made cross-border co-operation essential. Our own country’s security is enhanced by living in a secure neighbourhood, and we will therefore always have an interest in the internal security policies of our nearest neighbours, even after we leave the European Union, and they in ours.

On the whole, that point is well understood, but it appears to have led to a slight sense of complacency, not necessarily by the Government, and certainly not by the practitioners from whom we heard, but in public debate about how negotiations on this aspect of our future relationship with the European Union will unfold. There seems to be a sense that, because the UK and the EU 27 share a strong mutual interest in sustaining police and security co-operation, a positive outcome is inevitable. However, having examined the practicalities of arriving at that positive outcome, we were not quite so sanguine, and for that reason I was not surprised to see the Government’s White Paper listing,

“the way in which we cooperate on criminal … justice matters”,

among areas where a phased process of implementation may be required.

The vital thing to bear in mind is that, when it comes to police and criminal justice measures, we have already been through a mini-Brexit. The UK exercised its block opt-out of pre-Lisbon police and criminal justice measures in 2014, and then rejoined a smaller subset of 35 measures. As noble Lords who took part in the scrutiny of and debate on that exercise will recall, each of those measures was thoroughly assessed, including in the two Command Papers published by the Government as part of that process. The 35 measures we opted back into were judged to be in the national interest, and deemed “vital” by the then Home Secretary, now the Prime Minister, in order to,

“stop foreign criminals from coming to Britain, deal with European fighters coming back from Syria, stop British criminals evading justice abroad, prevent foreign criminals evading justice by hiding here, and get foreign criminals out of our prisons”.

Since the Lisbon treaty came into force, we have chosen to opt into some 30 further police and criminal justice measures, each individually assessed on their merits, including the passenger name record directive, the Prüm decisions, and the European investigation order.

Although the inquiry’s mission was to look for opportunities and risks from Brexit, we had to conclude that, in this area, we were mainly looking at risks. This was because, in contrast to other policy areas and as a result of the UK’s justice and home affairs opt-out, each of the measures that the UK participates in was, by definition, the subject of a positive decision and assessment when the country first joined—or rejoined—it, and those assessments were unlikely to have changed in the few intervening years. The word “suboptimal” came up time and again when witnesses described the options for future arrangements.

Our inquiry looked at the main tools and institutions that underpin our police security co-operation with the European Union, and there was a clear consensus among our witnesses on the measures they would like to see retained or adequately replaced. Europol, Eurojust, the second-generation Schengen information system, the European arrest warrant, the European criminal records information system and the passenger name record were consistently listed as top priorities. Broadly speaking, measures fell into two categories: those where there were precedents for securing access to those tools or to credible substitutes from outside the EU, and those where no such precedents exist, or where the precedents that do exist would not be sufficient to meet the UK’s operational needs.

Europol fell into this latter category. Our witnesses made clear that an operational agreement with Europol akin to those that other third countries have negotiated would not be sufficient to meet the UK’s needs. We therefore concluded that the Government will need to devise, and secure agreement for, an arrangement that protects the capabilities upon which UK law enforcement has come to rely, and goes further than the operational agreements with Europol that other third countries have been able to reach thus far. While our report was in preparation, a bespoke arrangement was agreed for Denmark. I would be grateful if the Minister could tell us more about that arrangement and how relevant it may be to the UK’s future needs.

On Eurojust, we judged that the third-country agreements that exist, particularly those which involve liaison prosecutors, may come closer to meeting the UK’s needs than the precedents for third-country agreements with Europol. That is not to say that a lift-and-shift model would suffice, since any such agreement would ideally provide for closer co-operation than has thus far been available to other third countries—for example, by providing access to the Eurojust case management system. We were concerned that the role of the supranational EU institutions in providing accountability and oversight of the activities of Europol and Eurojust could present a political obstacle to forging the sort of operational partnership that might otherwise be advantageous to both the UK and the EU 27. I hope that the noble Lord, Lord Kirkhope, may be able to say more about that, as his evidence on this point was particularly helpful.

On data sharing for law enforcement, we were concerned to find that the two data-sharing tools that witnesses identified as the top priorities for the UK—the Schengen information system and the European Criminal Records Information System—were also those for which there is no precedent for access by non-European Union or non-Schengen countries. The law enforcement community was emphatic about how absolutely vital those tools were to its work. The National Crime Agency described the Schengen information system as,

“an absolute game-changer for the UK”.

We did, however, accept the Government’s argument that the starting point for the UK in seeking to negotiate access to these tools was different from that of any other third country because of the UK’s pre-existing relationship with the EU 27 and the data it has to offer. Therefore, we consequently recommended that the UK should seek access to the full suite of data-sharing tools on which it currently relies, as well as those it is still planning for, while recognising that this would be a particularly ambitious objective.

Will the Minister clarify the remarks of the Secretary of State for Exiting the European Union in the other place last Thursday, when he appeared to imply that the UK would withdraw from the Prüm decisions after we leave the EU? Are the Government saying that they will not seek continued access to Prüm after we leave, even though both Houses voted in favour of UK participation, on their recommendation, barely a year ago?

I turn to the European arrest warrant. We saw no reason to revise our assessment, and that of the Government in 2014, that the 1957 Council of Europe Convention on Extradition could not adequately substitute for the European arrest warrant. We therefore concluded that the most promising precedent for the Government to pursue would be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the European arrest warrant’s provisions as far as possible. However, we were discouraged to see how long it had taken to negotiate and implement that agreement. Therefore, the European arrest warrant may well be a candidate for an interim arrangement, bearing in mind that we cannot afford an operational gap.

We received less evidence on the other criminal justice measures, and in any event could not examine them in the same level of detail. It is, however, reassuring that the Justice Select Committee in the House of Commons has launched an in-depth inquiry into the criminal justice measures. The lesson we did take away was that some of the lower-profile criminal justice measures complement the higher-profile ones—for example, the European supervision order helps to mitigate some of the less satisfactory aspects of the European arrest warrant. Therefore, the Government need to be mindful of the risk that relinquishing less well-known measures could undermine the effectiveness of tools that are higher up in the list of priorities.

During the course of our inquiry, some overarching themes emerged. One was a real sense of achievement, sometimes tinged with sadness, when looking back at the UK’s record in helping to build and shape the EU’s institutions, policies and practice in this area. Major components of the current landscape, from Europol to the passenger name record directive, reflect the UK’s influence and agenda setting. The Government will therefore need to examine what structures and channels they need to remain part of, or adequately replace, if they are to continue to influence the EU’s security agenda in the future.

The second theme that emerged was the tension between two of the Government’s objectives—that is, withdrawing from the jurisdiction of the European Court of Justice and maintaining strong security co-operation with the European Union. It seemed to us that, even with the utmost good will on both sides, there would in practice be limits to how closely the UK and the EU 27 could work together if they were no longer accountable to, and subject to oversight and adjudication by, the same supranational European Union institutions, especially the European court.

A third theme to run through much of the evidence was the need to meet EU data protection standards to be able to exchange data for law enforcement purposes with European partners after we leave the EU. At the point of exit, when we have identical standards, this may not be such a problem, but over time the UK can expect to have to keep up with standards that it no longer has any role in framing or influencing. More generally, the police and criminal justice measures that the UK is currently part of, and may continue to have a stake in, are liable to be amended and updated with the passage of time when the UK is no longer at the table to influence the pace and direction of change. We recommended that the Government should explore from the outset how any agreement reached with the EU 27 at the point of exit could address this prospect.

With reference to the last two points, noble Lords will have seen that the Government’s White Paper devotes quite a bit of attention to dispute resolution mechanisms and the Government’s intention to seek,

“a new approach to interpretation and dispute resolution with the EU”.

There clearly are precedents for adjudication mechanisms and international arbitration in trade agreements, but it is not clear that arrangements along those lines would address the issue that the committee raised about the link between deep police and security co-operation—for example, the ability to search each other’s police databases—and a common framework for oversight and accountability, such as that currently provided by the supranational EU institutions. Could the Minister tell us more about how the Government see the link and what implications it might have for the level of co-operation we can sustain in future?

I also invite the Minister to tell us a little more about what she expects to be negotiated as part of the withdrawal agreement and what would be part of discussions on the framework for a future relationship. For example, one might assume that extracting the UK from agencies such as Europol and Eurojust would be part of a withdrawal agreement, but could she shed some light on what other aspects of the current arrangements would fall within the scope of Article 50 narrowly construed?

Finally, the Government’s White Paper mentions the great repeal Bill and the Government’s intention that,

“wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before”.

Could the Minister please explain how she envisages the process of converting EU law into domestic law working in the area of police and criminal justice?

I look forward to the Minister’s reply and to the contributions of noble Lords.

Photo of Lord Wasserman Lord Wasserman Conservative 7:19 pm, 7th February 2017

My Lords, I am delighted to be the first speaker after the noble Baroness, Lady Prashar, as it gives me the opportunity to be the first to congratulate her and her committee on this important report. Having had both the honour and the pleasure of serving on the Home Affairs Sub-Committee of the European Union Select Committee for two years under her chairmanship, I can attest to her skills in this capacity. She manages to pull together a diverse group of Members drawn from all parts of this House, each with firmly held views of their own, and to persuade them all to affix their signatures to a single document tackling a complex and sometimes highly politically charged topic with limited—although excellent—staff support and in a relatively short time. This in itself is quite an achievement. Even more impressively, she manages to do this gently, patiently and with good humour.

This report is a good example of a Prashar production. It is clear, concise and comprehensive. It provides your Lordships and the world beyond these walls with an extraordinarily useful supply of material on one of the most important subjects facing our country at this time. Speaking of time, however, if there is one word I would not use in describing this report, it is “timely”. For me, as a declared remainer, the report is about 12 months late. I am not saying that I believe the result of the referendum would have been different had this report appeared in December 2015, rather than December 2016. I do not think the electorate were in any mood to take notice of what the House of Lords had to say on this or any other subject, particularly on one which might call into question the benefits of “taking back our country”. But they should at least have had an opportunity to consider the matters discussed in this document and to think in a slightly more informed way about some of the possible consequences for the safety of their communities of voting to leave the European Union.

The sad truth is that most of the points made in this report about the value of EU institutions in the policing and justice field received little or no attention during the referendum campaign. How often did any of the leading figures on the remain side mention Europol or Eurojust, the EU information systems such as ECRIS, the second generation Schengen information system, Prüm and the passenger names records, or valuable EU criminal justice tools such as the European arrest warrant, the European investigation order and the European supervision order? As I said, I doubt that discussing these institutions and systems would have made a jot of difference to the outcome of the referendum. But should not the electorate have at least been aware of the role these institutions and systems play in keeping them safe, and the risks our leading policing experts believe we run in losing them?

Take Europol, for example. Should not the electorate have known that the country’s leading law enforcement professionals believe unequivocally that this organisation, headed by one of our own nationals, is a “critical priority” in keeping us safe? Or that the DPP believes that Eurojust is “essential” to the effectiveness of the Crown Prosecution Service? Or that access to the information and intelligence currently sourced through the EU’s data-sharing mechanisms is seen as,

“mission critical in protecting … the citizens of the UK”?

Or that access to the second generation Schengen information system is described, as the noble Baroness said, as “an absolute game-changer” by our National Crime Agency, which said that access to it by UK police forces,

“is essential for mainstream policing … to safeguard the welfare of people across the country”?

Or that the European Criminal Records Information System—ECRIS—which most people have never heard of, is “critical to volume policing” and that not having access to it would present,

“an ongoing risk to the UK”?

Or that the passenger name record is,

“incredibly important for the security of our border”,

that the European arrest warrant is “absolutely vital”, and that any period without it or a delay in replacing it would pose an “unacceptable risk”?

I very much regret that it took this report, available only in December 2016, long after the referendum votes were counted, to set out clearly in one place all these expert evaluations of the EU’s law enforcement and public safety arrangements and how they affect us day to day. However, there is no point looking back. What about the future? How worried should we be about the consequences for community safety of leaving the EU?

The first point is that the EU’s role in community safety, while important, is limited. As this report states in its very helpful summary, many of the EU measures the UK is now due to leave were deemed vital by the then Home Secretary in order to,

“stop foreign criminals from coming to Britain, deal with European fighters coming back from Syria, stop British criminals evading justice abroad, prevent foreign criminals evading justice by hiding here, and get foreign criminals out of our prisons”.

These are indeed major threats to the safety of our communities. But let us not forget that they are only a small part of the threats we face in our day-to-day lives, and tackling them represents only a small part of the work of our police.

It is worth remembering that 1,732 individuals—men, women and children—died on our roads in 2015 and a similar number are likely to die in traffic accidents this year and next. Let us not forget the many victims of serious domestic violence or the victims of the intolerable anti-social behaviour that blights so many of our cities, towns and villages. All these threats affect our communities each day and will continue to do so whether or not we are in the EU. Our police will still be expected to deal with them, and although Europol and Eurojust are not irrelevant to these threats, their contribution is marginal. I wanted to put that on the record. It is important not to overestimate the dangers to our community safety from leaving the EU with regard to the various institutions we shall be discussing.

However, having said that, let us get back to the EU and its contribution. On this I am generally optimistic about the future, because I share the Government’s view that we will be able to negotiate new arrangements with the 27 EU members that will be at least as good as those we have now. I believe that we will continue to participate in Europol and Eurojust and to use the various information systems which we played such a critical role in creating. I say this not because I am, on the whole, an optimist but because I accept the Government’s view, restated in their latest White Paper, Cm 9417, that:

“The safety of the UK public is the top priority for the Government”.

I note with much pleasure that the report we are debating today appears to take the same line. In paragraph 8 of its summary and conclusions, it quotes the Government’s statement in 2014 that they would,

“never put politics before the protection of the British public”.

The report states that in the committee’s view, this calculation has not changed. I very much agree.

I also believe strongly that the Governments of our 27 EU neighbours share this view. For these countries, and especially for France, Germany and Belgium after their recent experience, the safety of their citizens from international serious and organised crime and terrorism will remain such an overwhelming priority that I am sure they will ensure that Brexit does not put them at risk. Here again, I am delighted to be able to quote the support of this report:

The UK and the EU-27 share a strong mutual interest in ensuring that there is no diminution in the level of safety and security afforded to their citizens after the UK leaves the EU”.

More importantly, I believe that our Government and the Governments of our EU neighbours understand also that serious and organised crime and terrorism cannot be tackled by national states on their own. Those who indulge in such activity do not recognise national borders, so dealing with them effectively must be approached internationally. That is why we and our EU partners developed Europol, Eurojust, the European arrest warrant and the various EU information systems. It is not in anyone’s interest, other than that of serious and organised criminals and terrorists, to damage or weaken these institutions and systems. I am sure that our policing professionals and their European colleagues will not let that happen. As the report concludes,

“there is considerable consensus among … law enforcement agencies on the … tools and capabilities they would like to see retained or adequately replaced”.

For me, this is the real reason for optimism.

Having spent most of my career working with police professionals, I have complete confidence that they will do everything they can to keep us safe. That is why I was so pleased when they spoke out so strongly when giving evidence to the committee. I believe that this is only the beginning of their engagement in this matter. Why did they not speak up earlier? I think because, like many of us, they did not believe that the British people would vote to leave. Why would they? From where the police sit, leaving the EU meant losing important weapons in the fight against crime. But now our police professionals are fully aware that the time has come to fight to preserve the institutions and systems they worked so hard to build. They are not going to walk away from this fight, police professionals never do—they run towards danger, not away from it.

Some will no doubt say, and this report gives them some justification for doing so, that this is wishful thinking. In the real world of hard political bargaining, such cross-border co-operation and new agreements are difficult, if not impossible, to achieve. Even where they are achievable, past experience has shown that forging such agreements takes a very long time, thus exposing us to dangers in the meantime. There is no doubt that experience in these matters is not encouraging; or to put it the way the report does, there are no precedents for believing that forging agreements will be easy or quick. Having served in the Home Office as an official for 27 years, I am very familiar with the arguments made based on precedents or lack of them. But I feel that anyone living today in the world of Brexit and President Trump knows that when it comes to judging the future on the basis of the past, all bets are off.

My faith is that our policing professionals and their European colleagues will come to our rescue. The police pride themselves on “getting things done”. As I said earlier, they will rise to the challenge—I am prepared to bet on it. That is why I welcomed this inquiry and welcome this report. It gave our police professionals a legitimate opportunity to speak out on issues which have hitherto been addressed mainly by politicians. I knew they would rise to this challenge and they have justified my faith in them. I am confident they will do so again.

Photo of Lord Soley Lord Soley Labour 7:32 pm, 7th February 2017

My Lords, I start by commending the noble Baroness, Lady Prashar, for the quality of her chairmanship of this committee and for engaging fully with everyone. I also thank the staff of the committee, who also did an extremely good job. I want to say at the beginning that I welcome the very recent change in the language of the Government, particularly in Malta. For the first time, I heard members of the Government say rather more forcefully than they had in the past that we must have a very close, positive relationship with Europe.

My view is that the referendum has happened and there is no going back on it in the foreseeable future. Therefore, we have to make it work for both the United Kingdom and the European Union. Failure to do so will have severe consequences for everyone. The noble Lord, Lord Wasserman, who has a lot of experience of this from his work in the Home Office, knows that many of the things that will happen as a result of Brexit will not be fully understood by the British public because the information was not put before them. I understand that, but I agree with him that the outcome would not have been different had it been put before them. He pointed out that people might have thought differently had they known the implications for the security side of things, but I remind him that if politics were rational, frankly, we would not need politicians. That ought to be an exam question for anyone who is thinking of doing politics.

We now have a report that gives the Government a way forward. Security and policing is one of the top four objectives for the Government, as has already been said. In my contribution I will focus mainly on what I see as the most important part of the report. Paragraph 37 talks about the problem of linking up with the security and policing work in Europe. It ends by stating:

“This may mean trying to remain part of certain channels and structures, or finding adequate substitutes”.

For me, that is very important, and it ought to be one of the negotiating aims of the Government. For all the reasons given by the noble Lord, Lord Wasserman, the security of the people of the United Kingdom and the European Union will be at risk if the co-operative organisations and structures that we have now cease to work, and we will all be in greater danger than we would have been otherwise. That is why this is so important. It is worth saying that there are a number of ways of achieving this. I take the view that it is perfectly possible to work these matters out and come up with acceptable solutions that work. But it is not going to be easy and I rather doubt that it will be quick.

In areas where we have to trade across borders—aerospace, cars and agriculture are good examples—there must be some sort of agreement on regulations. One advantage in those areas is the recent idea of equivalence; even if you do not follow the regulations precisely, you can have equivalence. The European Union could look at Britain’s arrangements on any of these matters and decide that because they are equivalent to the EU regulations, it can co-operate—and vice versa. The important difference with security is that although we can have equivalence in certain areas, there is the problem that this is about people’s liberty, about policing mechanisms and about the power of the security services. That means that the law is involved, and so everything has to be underpinned by the rule of law. That adds an important different dimension.

In my view, the primary aim of the Government should be the creation of new mechanisms for very close co-operation. Indeed, I have said elsewhere that I think we have to have a special relationship with the European Union and that we ought to start talking about it in that way. I visited Brussels in the middle of the inquiry and it struck me how many people were sad that we were leaving, but also how many people were angry. I understand that anger. Continental Europeans have always seen this as a political project. The British people have never seen it quite like that. We have seen it as an economic project. I have made the point before that for continental Europeans this is a superstate while for the British it is a supermarket.

We are now going down the road of what the Europeans rightly call cherry picking: we have picked this and that, and said we will take part in this but not that. I am reminded of the depth of the history of British culture in relation to Europe. It is very much a reflection of Lord Palmerston’s famous statement, made in the middle of the 19th century. To paraphrase, he said that Britain had no permanent friends or enemies, only our own interests to pursue and that it was our duty to pursue them. In a way, that is why we have ended up going from being the most popular country in Europe, post 1945, to being probably the least popular. We are now seen as the bad boy of the class.

A number of the existing arrangements mean that the police and the security services can talk and act directly together. That is the message that came through from the noble Baroness, Lady Prashar, and the noble Lord, Lord Wasserman. Outside the European Union, that will not be the same. We will no longer have a seat at the top table, so we will not be discussing what the rules should be on all of these areas for policing and security. Yet, as indicated, they are vital, so we have to work out how we do that. On leaving the European Union we become a third country, which produces a position where there might be arrangements by international treaty, cross-border agreement, with individual countries or with the European Union. I do not need to spell that out in any more detail for noble Lords to realise the complexity. As I have said already, equivalence is one way forward on some of these matters, but it is not the complete answer.

I will give an example. The United Kingdom could apply to the European Union for adequacy status on data protection, because data protection affects all our privacy. It often seems a rather dry topic, but if people are worried about privacy in their own lives, in business or other areas they need to worry about data protection. The EU could then decide if data protection in the United Kingdom was of an equivalent or adequate status in relation to that practised within the European Union. If it were, we could have an agreement that the exchange of data could take place. There would be safety in doing so. But there is a caveat because, although that could work, and it is one thing that the Government ought to be looking at in negotiations, I am not a lawyer but it occurs to me that if somebody felt that it was not appropriate in their particular case, they could challenge it in law. So again I emphasise the seriousness. But other countries have come up with adequacy arrangements with the European Union, so that could work.

When I visited the European Parliament during the course of this inquiry, I had some useful discussions with Members of the European Parliament, as well was the chairman and members of the various security committees from all of the other 27 countries who were present at the meeting. One thing that we were all concerned about was Europol and the whole issue of parliamentary scrutiny of the legislation passed. The European Parliament is now in the process of setting up what is in effect a rather large—and I suspect rather too cumbersome in the long run—Select Committee process for looking at the way that policing and security is done. We need to be linked into that. We cannot be members because we will be out of the EU, but we need to be closely involved in some way.

Our contribution in Brussels is remarkable. The chairman is Claude Moraes, whom I know well. He is a British Member of the European Parliament. Sir Julian King, the EU Commissioner for the Security Union, gave evidence to our committee and is also exceptionally highly regarded. Rob Wainwright is the director of Europol. He is a British police officer, again with a high reputation in Europe. All of these people are doing exceptionally good jobs. All of them will cease to be members when we leave the European Union.

There was a recent report of an extraordinary meeting of the conference of committee chairs with Mr Verhofstadt, a former prime minister of Belgium who is now the European Parliament’s co-ordinator on Brexit. The notes of the meeting state:

“Linked to this is the question of the use of the European Arrest Warrant. UK has always been critical about the EAW. Entering an alert for arrest … is equivalent to a provisional request for extradition … It will have to be discussed whether UK will want to continue”,

with the EAW. If we do, what do we do about the oversight of the European Court of Justice, because UK officials have pointed out that the jurisdiction of the European Court of Justice is a red line and that we will not accept that court’s jurisdiction? So there is a complex area between the use of the European arrest warrant and how we resolve that problem without also putting ourselves in the situation of being outside the remit of the European Court of Justice—which I assume we will do, because it is a red line for the Government. So what other safeguards will we have? It is a complex area and that report is important.

There will be a limit to how closely we can co-operate if we do not recognise the European Court of Justice. We need to recognise that there will be some international treaties between the UK and the EU. There will have to be some structures, agreements and adequacy points, which I have already mentioned, that allow us to continue with the co-operation. In some ways we will have to rely on precedence for having access to some of these policing and security practices. Other countries have done that with bilateral agreements. The United States has a bilateral agreement on passenger name records because it regarded that as particularly important after 9/11. Norway and Iceland have an agreement on the European arrest warrant. But again, if we look at that closely, there are problems with it, so replicating it is probably not the best answer.

I will conclude where I began—by saying that the onus is now on the Government to negotiate new forms and new ways of making sure that co-operation between the EU and the UK continues. It is of such importance. It is not just a conventional thing in many people’s minds—arresting someone in Belgium or Germany or vice versa in Britain and sending them over. There is also the whole question of terrorism and, as the noble Lord, Lord Wasserman said, we cannot solve that problem on a single-nation basis; we have to have close co-operation. That means exchanging vital information that will often be of a security nature.

In those circumstances, one thing that the Government will have to look at in their negotiating procedure is the legal safeguards. What legal challenges can they expect from people caught in that system who decide that the Government of the United Kingdom or the European Union do not have the legal power to do what they are doing and then challenge it in the courts? This is where the negotiations are critical. We will not see how they pan out for a few years yet, but they are really extremely important.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 7:47 pm, 7th February 2017

My Lords, I am not sure whether this is declaring an interest or providing background information, but I was a police officer in the Metropolitan Police between 1976 and 2007.

I thank the noble Baroness, Lady Prashar, for her comprehensive introduction to this debate. I welcome this report and congratulate the committee for isolating what I consider to be the most important implications for the UK of leaving the EU in relation to policing and security co-operation. In addition to reading the report, I have had the benefit of talking to David Armond, who is leading for the National Crime Agency on these issues, and to Lynne Owens, the director-general of the National Crime Agency. This is where I part company at an early stage with the noble Lord, Lord Wasserman. While he is quite right about the tenacity of police officers and police professionals to overcome obstacles, my experience from over 30 years in the Metropolitan Police is that I would not underestimate the ability of politicians to work in completely the opposite direction.

As the report concludes, and as the noble Baroness, Lady Prashar, said, the importance of many of the mechanisms that enable the UK and the EU to co-operate effectively in this area cannot be overstated. Some aspects are equally if not more advantageous to the EU 27 than to the UK, and we would want such co-operation to continue, but the report also points out that that is not straightforward. In other aspects, of course, the UK is the major beneficiary. The UK uses Europol, for example, more than any other country, accounting for around 40% of the data flows.

I want to emphasise what I see as some of the major issues and, as noble Lords would expect, I shall concentrate on the policing aspects. First, in the past the UK was instrumental in shaping the nature of police co-operation and security matters, but it will no longer be able to exert such influence once it is outside the European Union. Having spent so long being in control as far as security and police co-operation are concerned, even if the UK is allowed to stay on board—over which there is some doubt—it will no longer be in the driving seat. Interestingly, the report highlights how the balance between security and privacy, when it comes to the acquisition and sharing of intelligence, may tip against the UK without it being able to influence that. Of course, many on these Benches would see that as a good thing, because the balance would inevitably tip in favour of privacy following the passing last year of the Investigatory Powers Act, but others may be more concerned.

Secondly, and more worryingly, the UK Government have stated that they intend to use their strong position on police and security co-operation as a bargaining counter in the overall negotiations with the European Union. In a situation where most commentators believe that everything should be done to maintain the current level of police and security co-operation, it is worrying that the Government might be threatening to reduce or end such co-operation should the UK not get what it wants in other areas.

The third issue is the necessity for common standards and adjudication arrangements when it comes to many of the most valuable EU-wide mechanisms. The essential element of all these mechanisms is the sharing of information and intelligence, for which there must be common standards of data protection, as the noble Lord, Lord Soley, has just mentioned. The need to meet EU data protection standards is not just an issue of the UK giving up sovereignty in this area, in that it will not be able to set its own data protection standards that fall short of those set by the EU. If in the future the EU decides to enhance those standards, the UK will have no say in that decision-making process. There is a clear trade-off here between UK sovereignty and UK security, and I hope that the noble Baroness can explain which of the two will be sacrificed. According to the report, in 2014 the Government said that they would,

“never put politics before the protection of the British people”,—[Official Report, Commons, 10/11/14; col. 1224.] so I am guessing that the UK will abide by EU data protection law.

Practitioners believe that something very close to full membership of Europol is essential, but Europol is accountable to EU institutions, including the European Court of Justice, and we have just heard from the noble Lord, Lord Soley, that it looks like the European Parliament is going to become more heavily involved in overseeing Europol. But the Government have made clear that they do not want to be subject to the ECJ. Can the Minister explain how this will work and tell us how many other mechanisms such as Eurojust, for example, rely on the jurisdiction of the ECJ?

There are other issues. There is no precedent for a non-Schengen, non-EU country to be a member of the second generation Schengen information system which, among other things, allows patrol officers in the UK to identify in real time people wanted under European arrest warrants and those who are of interest to counterterrorism agencies. The noble Lord, Lord Wasserman, talked about precedents and said that we should not be bound by the fact that, just because it has not happened in the past it should not happen in the future, but as the noble Lord, Lord Soley, said, it takes time to negotiate alternatives. The report helpfully gives the example of the extradition arrangements between Norway and the European Union. Bearing in mind that Norway is within the Schengen area, there are arguably stronger links between Norway and the EU than the UK will have after we leave. The negotiations for that extradition agreement started in 2001 and were concluded in 2014, and it has still not come into force. There is a real danger of there being a considerable gap in capability if we are not very careful.

No non-European Union country has access to the European Criminal Records Information System where, as the noble Lord, Lord Wasserman, said, the criminal records of EU nationals are shared between member states. I am also very concerned that, as the noble Baroness, Lady Prashar, mentioned, apparently the Secretary of State for Exiting the European Union has said that we would no longer be part of the Prüm decisions, which allows for the very rapid sharing of fingerprints, DNA profiles and vehicle number plates. Under Prüm, these take between seconds and a maximum of 24 hours, whereas the National Crime Agency says that alternative arrangements with other countries under Interpol take weeks or months, and indeed some inquiries are never responded to at all. It would be a very serious matter if the UK withdrew from the Prüm decisions.

There is little doubt that the Prime Minister’s threat that she would walk away rather than accept a bad deal from the EU would have serious consequences if it included no deal on policing and security co-operation. Coming out of the single market and the customs union may slow growth in the economy, but walking away from policing and security co-operation would pose a serious risk to public safety. The Prime Minister has said that every aspect of our relationship with the EU is on the negotiating table. Perhaps the Minister would like to suggest to the Prime Minister that she should rethink that. This is one baby that we should not throw out with the bathwater.

Photo of Lord Condon Lord Condon Crossbench 7:57 pm, 7th February 2017

My Lords, I have the honour of serving on the EU Sub-Committee on Home Affairs, so ably chaired by the noble Baroness, Lady Prashar. She has set out eloquently the main points in our report. In view of the time and what other speakers have said, I am not going to go over the same ground, rather I will try to emphasise from a former police background what I think are some of the important things we should be considering.

There are many exciting aspects to leaving the European Union. It will create exciting opportunities for the country, but this area is not one of them. Leaving the EU will open no new doors for police co-operation and it will create no new opportunities. It does not create space for us to become a better and bigger global partner in this area. That is not, I hope, a lack of imagination, resolve or determination on my part. As the report shows, it is the result of a forensic examination of the current position and the prospects as we leave the European Union. The Government will have to work extremely hard in their negotiations if there is not going to be a diminution in the safety and security of our citizens.

I spent quite a lot of the second half of my police career encouraging and setting up many of the embryonic stages of police co-operation in Europe, in particular in two posts. The first was as the chief constable of Kent Police, when I worked extensively on the planning for the Channel Tunnel right through from its inception to its completion, as well as the important establishment of two land frontiers with France at either end of the tunnel, concentrating on the juxtaposition of controls and working with European police forces in a very detailed way. Then, as commissioner for seven years in London, I encouraged and helped to set up Europol in the mid-1990s. I saw it through the early years of its birth, development and establishment.

When I retired in 2000 police co-operation around Europe was important, but it certainly was not a day-to-day activity and it did not challenge or get in the way of day-to-day policing. What we learned from our expert witnesses was how much has changed in the intervening time—developments in technology, the internet and mobile telephony; the threat from asymmetric terrorism and how terrorism has changed; and the movement of people throughout and into Europe, with 3 million EU citizens living in the United Kingdom. Police co-operation throughout Europe has moved from the nice and important to the essential day-to-day. That co-operation is woven into the fabric of day-to-day policing up and down our country.

I hear what the noble Lord, Lord Wasserman, said about other threats, but European co-operation, through full membership of Europol with unhindered access to the various databases, Schengen II, criminal records, Prüm, passenger name records and so on, and access to and use of European arrest warrants, Eurojust and all the other police and justice infrastructure means that everyday policing up and down the country relies on these very important relationships, institutions and databases, whether it is a terrorism detective in Scotland Yard or the National Crime Agency working on a sophisticated inquiry to thwart a terrorism threat, or a young patrol officer in Leeds, Bristol or Manchester stopping a vehicle and within seconds being able to check on vehicles, people and property in a way that only a few years ago would have been unthinkable. As the noble Lord, Lord Paddick, said, things are done in seconds now that previously took days, weeks, months, or never got done. We should not underestimate how European co-operation on policing is, to use a horrible phrase, mission critical to everyday policing in this country.

I know that the Prime Minister is fully aware of that importance. As Home Secretary and Prime Minister, whenever she has spoken about Brexit she has emphasised the importance of strong and close co-operation. In the debate in the other place on 18 January about the implications for police and security, the Police Minister who opened the debate, the Brexit Minister who closed it and every single speaker was unanimous about the importance of this subject and maintaining the closest possible links.

Paragraph 11.7 of the Brexit White Paper sets out unequivocally that we need strong and close future co-operation—so far so good in recognising the importance of the subject. Where I digress slightly from the view of the noble Lord, Lord Wasserman, and from the Government is that I believe there is an overreliance in government circles on two facts that are constantly prayed in aid as reasons why we should be optimistic for the outcome of any negotiations. The first is mutual dependency. We all want to combat terrorism and serious crime. We all want to stop paedophiles and cybercrime. Surely that mutual interest will drive us to find a solution to these challenges. The second thing, which the Government constantly state, is that the United Kingdom has been at the heart of these co-operative arrangements and designed many of them, leads them and is a major user of them. The almost unspoken assertion is that the European Union cannot do without us. I fear there is an element of complacency that mutual dependency and the fact we are currently at the heart of these measures will see us through. The noble Lord, Lord Wasserman, is right that police throughout Europe have a can-do mentality and will want to find a way through this, but there are major impediments to progress that other noble Lords have already mentioned.

The first is the jurisdiction of the European Court of Justice. Police officers in any part of Europe can ruin people’s lives by their actions. In the most extreme circumstances they can and do take people’s lives. It is vital that their actions—acting alone, in collaboration or on a major operation—are subject to scrutiny and the highest challenge through political structures, accountable structures and most certainly through legal structures and the courts. Europol, the various databases, the infrastructure for the European arrest warrants and Eurojust are all quite properly subject to the jurisdiction of the European Court of Justice and, increasingly, to the European Parliament, the Commission and its institutions. We are pulling out of those. We want to be a member of the policing club with all the benefits, but at the moment we are saying that we are not going to adhere to or accept the jurisdiction that there currently is over those important mechanisms. The second important area, which could be a major impediment, is data protection standards, which other noble Lords have already spoken of. At the moment we are signed up to and quite properly part of the implementation of those data protection standards, but we will be leaving the club and our involvement with them.

How should we move forward? Clearly we must find a satisfactory way through this if we are to protect our citizens and our good friends in Europe. Section 12 of the Brexit White Paper talks about avoiding disruptive cliff edges and the consideration of phasing in the new arrangements. If ever there was a subject matter that should rely on those sentiments it is police co-operation and our membership of the infrastructure that delivers it. It is in the interest of the United Kingdom, the European Union and all their citizens that we maintain the status quo for as long as possible. There is no rush and no rhyme or reason why we should seek to unscramble or destabilise these arrangements—quite the reverse. It should be a government position and, I hope, an EU position that we should maintain the current infrastructure and the status quo for as long as possible. If that means being creative around accepting the jurisdiction of the European Court of Justice over some of these issues for a period of time, let us find a way to ensure that that takes place. Anything less than the status quo will be a diminution of the safety and security of our citizens. As we move forward, we must stay in the club on these issues and maintain the status quo for as long as possible. We know, however, that there has to be change, and in negotiating and preparing for that change, the United Kingdom negotiators should willingly offer progress on three important issues.

First, we must pay a reasonable contribution to Europol and for the databases and the European arrest warrant and infrastructures—all of that. Why would we not want to pay our way? We must make it clear up front that we will pay reasonable and sensible contributions for all of those institutions and databases.

Secondly, we should willingly show that we are going to match or exceed data protection standards. We can easily make the financial contribution. I say that even though it is not my money, but we can make that work. Data standards are something that we can make work relatively easily, and in recent weeks and months we have worked with the EU and signed up to four important developments on data protection: first, a general regulation on data protection for EU citizens; secondly, a general directive on law enforcement in the European Union; thirdly, a privacy shield signed between the European Union and the United States to enable data sharing primarily commercially between us; and fourthly, an umbrella agreement signed between the EU and the United States for law enforcement purposes. It is that fourth issue—the umbrella agreement that the EU has signed with the US—that is a model that will perhaps show us the way forward. We will certainly have to show that, in terms of data protection standards, we are matching or exceeding the EU standards that we are currently signed up to.

Thirdly, the most intractable problem is finding an acceptable way through once we have shown that we are no longer subject to the jurisdiction of the European Court of Justice. Other noble Lords have already pointed out that the White Paper and the Government have accepted that dispute resolution mechanisms will have to be developed. That is one area where I currently cannot see a way forward. However, I am sure that there will be a way forward; and that when we come out of the jurisdiction of the European Court of Justice, we will have to show that we accept there has to be an adequate replacement.

As others have said, voters in the referendum last year did not really have a chance to consider these issues, but I am sure that if they had, they would not have wanted to make it easier for terrorists, paedophiles or serious criminals. It is in the interests of both the UK and the EU to maintain the status quo for as long as possible. However, as we move forward from that, the new arrangements will mean that we have to pay our way, maintain data protection and find dispute resolution mechanisms. I am honoured to serve on the sub-committee. I hope that we have made a contribution that the Government will find helpful and that, as we move forward, we will continue to seek ways to help the Government find a way through this vital topic for our country.

Photo of Lord O'Neill of Clackmannan Lord O'Neill of Clackmannan Labour 8:14 pm, 7th February 2017

My Lords, I am very pleased to follow the noble Lords, Lord Paddick and Lord Condon. It was rather like being on the committee, in the sense that we had a succession of police officers, some of whom were retired and some still in harness, so to speak. They come out with a consistent line, and this was exemplified by the last two contributions. As a relatively new member of the committee, I thank the noble Baroness, Lady Prashar, for the way in which she was able to conduct the business and ensure that those of us who were the lowest of lay people—if I may put it that way—were able to follow the proceedings, which were very intense and helpful, and were greatly assisted by the clerk and her staff.

As has been said, it would have been helpful if we had been able to have had a more sensible debate in the course of the referendum campaign. In fact, one has to say—although it would, perhaps, not be said from the Benches opposite—that the Home Secretary at the time could have played a more significant role in drawing attention to some of the difficulties that leaving would have. We have now begun to see some attention being given to them, but I do not have too much faith in last week’s White Paper wish list. It has nodded in the direction, but it has not really given us anything like the kind of response to the points that have already been made this evening.

It is fair to say that we are beginning to appreciate the complexity and significance of the EU’s role in security and police co-operation. This questions the assertion that we had to leave to secure our borders or to take back control of our laws and justice, because we see that so much of what is operating in our system at present is dependent upon this EU co-operation and will be made that much more difficult by our leaving. Witnesses repeatedly provided us with evidence of how much more difficult it will be to protect ourselves, and indeed our fellow European citizens, if we do not have full access to the agencies which our membership of the EU affords. I will look at two areas where our benefits and influence will be lost when we leave. These are not areas where the words “hard” or “soft” Brexit have much relevance. We are dealing here with not national advantage or for that matter old score-settling, but simply matters which contribute to the operation of justice and our mutual security. I shall deal with Europol and Eurojust.

In 2014 a predecessor EU sub-committee recommended that the UK opt into what was then the new Europol regulation. Eventually, before Christmas last year, the Government did so. This will certainly put us in a better place when we come to negotiate our exit from the EU. These negotiations may not be easy as some would imagine, since the UK’s involvement in Europol is of a greater order than that of third countries such as the US, Norway and Albania: I do not put those in any particular order of significance. The Government has said—it has been quoted already but it bears repeating—that they would never put politics before the protection of the British public, but how is this going to be achieved in the context of the way in which Europol is moving, as envisaged in the new regulation?

The Government wish to free us from supranational European institutions, yet the new regulation seeks greater accountability of Europol, involving the Commission presence on the management board and a joint parliamentary scrutiny group involving reps from national parliaments and the European Parliament. If this is to be the case, and if we always have the bogey of the European Court of Justice in the background, so hated by the Brexiteers, UKIP-pers and the rest—it is difficult in these areas to distinguish one from another—it will create very great problems when it comes to getting a deal we can sell to this House and the other place.

The significance of Europol as a source of information and intelligence and as a means of co-operation was repeatedly stressed to us and we were told that these would be terribly dangerous to lose. Some access is afforded to countries which are not part of Europol but which enjoy third-country or third-party status. There are two forms; the first, which consists of strategic co-operation, includes Russia, Turkey and Ukraine, is limited and excludes personal data. Then, the US, Australia, Canada, Colombia, Norway, Switzerland and some of the Balkan states are operational partners but, as has been stressed, they are not on the board and do not determine the future way in which policy will develop. Indeed, it could be argued that Norway and Iceland might be classified as having Championship status, as against the Premier League status enjoyed by the 28 at the present moment.

This is not going to be good enough for a country which uses 40% of the capacity of SIENA, the Secure Information Exchange Network Application. This is the main data-protection conduit for information passing through Europol. We are the second-largest contributor to the European information system. We lead on four or five of the 13 EMPACT projects, co-ordinating member states and EU organisations against Europol-identified serious organised crime threat assessments. These are areas of great significance for the agencies and for the UK. All these would have to be conducted under data-protection protocols over which we will have no say. If we are on board, if we are alongside, we will not necessarily have any means of influencing this. There may well be areas in which we have significant knowledge. Of course, we may make enemies in the course of this—by being a wee bit,

“smarter than the average bear”,

as Yogi Bear would say, we may put noses out of joint and scores will have to be settled. They could that much more easily be settled if the offending party is not in the room when the decisions are taken.

Such contributions and organisational involvement are crucial to the security and policing of the 27. I am conscious of what the noble Lord, Lord Condon, said about us being a wee bit complacent—that maybe they cannot do without us, that the 27 will look favourably upon us—but what will have to be arrived at are rather more pragmatic arrangements than have been envisaged hitherto. Also, we will have to recognise the examples of countries that have tried to negotiate their way into a position of good standing. For example, Denmark has had great difficulty in returning to Europol after its block opt-out, which has been at the expense of third-party status. Third-party status would appear to be very difficult to achieve quickly. We cannot find much consolation in precedent to suggest a speedy solution. As the noble Lord, Lord Condon, says, if we can skilfully stay in the club while we are trying to negotiate a deal, we may get the best of both worlds. But that will require a degree of skill being shown by our negotiators and it remains to be seen whether we have people with the requisite skills or whether a sufficiently high priority will be placed on this as against the economic and trade considerations, which, despite the words of the White Paper, will tend to be the areas that attract most attention. Accommodating the European Court of Justice could well be anathema for the more zealous Brexiteers.

As the report says, Eurojust is the agency responsible for,

“supporting and strengthening coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States”.

This covers mutual legal assistance, European arrest warrants, the joint investigation teams and the provision of,

“legal, technical and financial support”.

Much has been made of the suggestion that we will somehow come out of this Brexit process not having to pay the subscriptions, but I imagine that if we are going to command any attention or sympathy we will have to pay our way, and we may have to pay our way at a rather greater rate than is enjoyed by the normal members. That is very often the case with people who want to be, as it were, county members of particular clubs. We might want to be the offshore member of the arrangement.

These negotiating priorities are going to be difficult to achieve. People have stressed the advantages of co-operation and the opportunities to work multilaterally through joint investigation teams. There are arrangements for third countries and liaison prosecutors but they are of a different order from those enjoyed by the management board members such as the UK, and any new arrangements are likely to be inferior to what we now have. The cost of providing 27 UK liaison prosecutors and the time likely to be necessary to secure the appropriate provisions will be daunting. Switzerland took seven years. Those large population centres of Liechtenstein and Moldova took five and six years respectively for bilaterals to be achieved.

I come back to the point made by the noble Lord, Lord Condon. It may be that while we are going through these negotiations it will be status quo ante and therefore it will be okay for a wee while. We might even think about re-joining in the intervening period. These problems are not necessarily insuperable but they will be difficult. The solutions will be complex and, even with the best will in the world, they will take time. We do not know what the impact will be on crime fighting and terrorism fighting in Europe, and on the international justice and security system. These things remain to be seen.

That is perhaps the single most worrying aspect of the outcome of our studies: we do not really know. We see pious words in White Papers, written because the court told the Government to write them—“This will be our third or fourth priority. This will be very important” —but we do not know the negotiating stances. We will not know for some considerable time how long the negotiations will take. We will certainly need far more information, perhaps on a quarterly basis, about what is happening.

I would like to think that a report of this quality will not be allowed to gather dust and that we will return to this subject repeatedly. This is perhaps my rather rough experience in the place along the road but there is nothing that officials dislike more than having their feet held to the fire by Select Committees, whose repeated returning to the subject means that they know almost as much about it as the officials do. I am not saying that I know as much about it as the officials do, but to paraphrase FE Smith, I may not be any the wiser but at least I am better informed than I was before. I am very grateful for the opportunity to have participated.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 8:29 pm, 7th February 2017

My Lords, that we shall be leaving the EU must now be a given and although personally I was a remainer, I intend to speak and vote in the forthcoming debate, albeit with a heavy heart, in favour of authorising the proposed Article 50 notification. It is in that context that we now need to consider the vital issues that arise as to our future co-operation with Europe in the field of security and justice. On this I, too, pay tribute to the work of the noble Baroness, Lady Prashar, and her committee in producing this excellent and perceptive report.

I put my name down for this debate only late yesterday, when I noticed that there was close to a dearth of lawyers due to speak. Nor was there any member of the Lords ad hoc committee under the chairmanship of the noble Lord, Lord Inglewood, which two years ago reported on our extradition law and practice. It is principally upon that matter that I will concentrate today, and more particularly on the European arrest warrant which in that extradition committee we explored in the greatest detail—the noble Baroness, Lady Ludford, was one of many expert witnesses before us. In doing so, I should perhaps say that in my judicial capacity I have been involved over the years in a good number of extradition cases, including a number with the noble and learned Lord, Lord Hope of Craighead, who is almost in the Chamber. Latterly, they included that of Mr Assange—not that we have yet managed to extradite him.

To my mind, based on that experience it is really quite difficult to exaggerate the huge benefit of the EAW to the goal of attaining justice with regard to cross-border crime and so forth, and avoiding safe havens for criminals across Europe. Undoubtedly, it has promoted speedier, cheaper, more streamlined and, I would argue, fairer processes overall than previously existed. The DPP has described the EAW as,

“three times faster and four times less expensive”,

than the alternatives. Let us consider some basic statistics. Before 2004, when the scheme came into force, fewer than 60 people a year were extradited from the United Kingdom. Since 2004 more than 7,000 individuals, over 95% of them foreign nationals, who were either accused or already convicted of criminal offences, have been extradited from the UK to other member states, and more than 1,000 have been extradited to the United Kingdom from other member states to face justice here.

Following the attempted second Tube bombings on 21 July 2007 we managed to extradite one of those involved from Italy back here, under a European arrest warrant, in just 56 days. We should contrast that with the 10 years it took to extradite one of those convicted of the terrorist bombings in Paris from the UK to France under previous arrangements. Notice, too, Operation Captura between Spain and the UK, which again is illustrative: through the scheme it has, since 2006, procured 61 wanted criminals who were arrested in Spain and returned here. Paragraphs 126 to 128 of the report emphasise the huge value of the European arrest warrant in extraditions, as described by those principally responsible for criminal justice in the UK, and the deficiencies of the pre-existing system. As one noble Lord has already observed during the debate, that system was based on the Council of Europe’s 1957 convention on extradition.

Manifestly, Brexit notwithstanding, it is imperative that we maintain the benefits of the EAW scheme—but how do we achieve that consistent with the Government’s avowed intention to sever our link with the ECJ, nowadays called the CJEU—the Court of Justice of the European Union? Oddly, our submission to the jurisdiction of that court seems to be almost doctrinally central to the Government’s policy in implementing Brexit. As part of regaining our sovereignty, the Government appear to regard it as a core principle that in future our laws will be made in Westminster, not Brussels, and that any legal issues arising will be decided not by the ECJ in Luxembourg but by our courts.

It might be thought that as an erstwhile senior British judge, albeit now five years retired, I would enthusiastically welcome such a change: a restoration of final authority on legal disputes to the Supreme Court—although here, unlike in the States, it is always subject to Parliament’s legislative power to override the court’s decision. Indeed, it is, in some ways, satisfying that we shall no longer be bound by rulings of the ECJ. On occasion, they are somewhat expansive rulings, open to accusations of judicial overreach in pursuit of an agenda of ever-closer union. Certainly, I am perfectly happy to think that, with regard to vast swathes of our law, we shall no longer be required to refer and defer to Luxembourg on any uncertainties as to the correct construction and application of EU provisions on VAT law, procurement law, planning law, environmental law, employment rights legislation, equality legislation, and on our attempts on public interest grounds to remove EU citizens who have committed a criminal offence here.

All these matters and, indeed, many more, are currently subject to Luxembourg rulings and so to innumerable EU-based regulatory schemes which, come Brexit and the so-called great repeal Bill, we shall either have to abandon or, more probably, incorporate in existing or amended form into domestic law. Inevitably, if we keep them, it will be as they have evolved and developed in the light of past ECJ judgments—but as for the future, they will presumably be subject only to rulings of our own courts, any subsequent Luxembourg decisions in point being merely persuasive rather than binding in effect.

That will be the general position. But—here I return to the European arrest warrant and various of the other 35 measures relating to police and judicial co-operation in criminal justice which we opted back into in 2013 of the 130 such third-pillar measures we opted out of post Lisbon—severing our link to the ECJ need not and should not be the position in relation to many of those measures, particularly those covered in the report: not only the EAW but, for example, Europol, Eurojust and various data-sharing and information-sharing arrangements. In this critical area of security and criminal justice, it is essential that the Government recognise the need to continue accepting the jurisdiction of the ECJ in this relatively narrow context.

That is the modest enough price to be paid for the huge benefits of operating—necessarily internationally—schemes to combat the ever-increasing tendency of criminals to operate and travel across borders. In this limited regard, I urge the Government to put aside their surely somewhat doctrinaire approach to the so-called recovery of sovereignty. Whatever supranational adjudicative tribunal we submit to, in this or any other area of international dispute, to that extent inevitably we are, if one chooses to look at it in this way, surrendering sovereignty. So what? It is for the greater good. The International Court of Justice and the European Court of Human Rights are just illustrations of this.

I know that the Government are hoping for some kind of bespoke supranational means of supervising the future operation of the EAW scheme, and no doubt of other such schemes that we have been discussing—but why on earth should the other 27 nations agree to this? Consider the suggested alternative to the EAW—the noble Lord, Lord Soley, has already touched on this—which Norway and Iceland had no alternative but to adopt because of course they are not member states. Paragraphs 129 to 133 of the report deal with this. After 13 years of negotiation, the agreement with Norway and Iceland is still not in force. In any event, it includes the objectionable option of a state party being allowed to refuse to extradite one of its own nationals. It also contains an exception for political offences. It may, in any event, require the non-EU state to be a member of Schengen. Finally, and in this event of course decisively, it would appear to require the non-EU state to submit to the ECJ jurisdiction.

In conclusion, this is an excellent report, which rightly suggests that we need desperately to retain the links that it deals with. It is fervently to be hoped that the Government will now digest the report thoroughly and reflect it fully when they come to determine their future negotiating position on these vital topics.

Photo of Lord Kirkhope of Harrogate Lord Kirkhope of Harrogate Conservative 8:42 pm, 7th February 2017

My Lords, I refer to my entry in the Members’ register as a practising lawyer. As one who not only gave evidence to your Lordships for your report while in my “metamorphist” state between the European Parliament and this place, but who has spent the last 10 of my 17 years as an MEP and party spokesman on these very subjects in Brussels, working constantly on getting ever-closer co-operation between Governments, police and intelligence agencies, I thought I would offer a few thoughts at this time.

I congratulate the committee on an excellent report, which demonstrates, as I have mentioned in many places and on many occasions, a thoroughness and quality almost unique to your Lordships and their excellent staff. There is so much to endorse, but in my limited time today—thus allowing other noble Lords perhaps a little more time to speak—I will concentrate on just the most critical areas, to my mind, which must be properly sorted out before the Brexit negotiations are concluded. My evidence to your Lordships’ committee stands as a supplement to any remarks I make this evening.

It took me seven years as rapporteur to negotiate the EU PNR agreement between the 28 states, which incidentally is right now, as we debate this evening, being vigorously introduced. It took similar periods for other measures in which I played a leading role, such as the European Criminal Records Information System, which has already been referred to; Schengen; SIS II; the Prüm system for exchange of DNA and fingerprints; the joint investigation teams, which we introduced over 10 years ago in the European Parliament; Europol powers; and of course all the extremely complicated but necessary data protection legislation. I thought no job could get any tougher than the one I held when I was UK Immigration Minister in the 1990s, but that proved a little premature.

We have now reached a level of co-operation that has never been seen before but which is increasingly vital to keep abreast of terrorism and major criminality. We are now able to deal in “virtual real time” as opposed to historical exchanges of information or data necessitating bureaucratic or constitutional delays, which of course used to put us all at greater risk. However, real time comes with obligations. In order to maintain trust and confidence so that such material can be released, there have to be common rules and ultimately common redress and accountability. Currently that lies in Europe or through its institutions, as well as in our national Parliament. The European Court of Justice, although, as we know, largely limited to treaty interpretation, has a vital role in ensuring that all participants operate with the same safeguards. Post-Brexit, how do we deal with a situation where the remaining 27 states are still obliged constitutionally to turn to those institutions but we are not?

Recently, we have heard a number of interesting remarks from Ministers, among them:

“As part of the exit negotiations, we will need to consider the full range of options to ensure effective cooperation after the UK leaves the EU”.

That was my honourable friend in the other place, the Home Office Minister Ben Wallace, on 19 August last year. Last December my honourable friend David Jones said:

“Europol is of importance. As part of the exit negotiations, the Government will discuss with the EU and member states how best to continue co-operation on a range of tools and measures, including membership of Europol”.—[Official Report, Commons, 1/12/16; col. 1655.]

And my right honourable friend Brandon Lewis said in January:

“In my conversations with colleagues across Europe, I have been encouraged by their view that it is essential to find a way for our shared work on security to continue, but we do have questions about how that should happen in practice and we need to work through answering them”.—[Official Report, Commons, 18/1/17; col. 958.]

They are of course right to acknowledge the importance of getting this right, but how do they achieve it? It is definitely one policy area where a so-called hard Brexit or indeed any time vacuum is simply not a responsible option. There is no World Trade Organization equivalent in this vital area to fall back on.

Despite my known reservations, perhaps in a spirit of helpfulness I might offer a little advice. First, we need to recognise that our European partners will not and cannot yield the control of all these measures from the present intra-institutional arrangements. Secondly, as the Economist Charlemagne column has suggested this week in reference to a “Norwegian option”, as it put it, we must recognise that even the great repeal Act will at best freeze the European legislation and its parameters at the date of its implementation, when in fact we need these measures to be dynamic, as I would term it, and tuned to future changes and safeguards; the article refers to that. All EU legislation is now designed to a lesser or greater extent to be dynamic, mostly as a result of the work we did after the Lisbon treaty of 2009 when the European Parliament acquired a greater say over all these measures.

So, even if my colleagues along the corridor and, I am afraid, some in this House turn apoplectic at times at the initials “ECJ” or “EP”, in my opinion we should try to agree some new legal protocols. I myself was involved in the Protocol 36 mechanisms regarding our opting out and then opting in to various measures. Protocols are useful things. We will certainly need to agree a new legal protocol here so that we can accept changes when and if they are made subsequent to our adoption of European legislation through the great repeal Act.

Negotiating from this parallel position to find a means ourselves of changing such protocols needs skilful negotiation and a large dose of ongoing good will. Whether we can get round the strict ban in a number of areas on sharing information and data with third countries is a matter of real concern to me, but I believe it is achievable if the right device is found. A similar approach may have to be deployed in a large number of other areas where we plan at a specific date to take on large pieces of EU legislation.

At times, I wonder whether the extent of the post-Brexit challenges is totally appreciated by some people—obviously, I exclude my noble friend from this—particularly in this vital field. I know that the Brexit debate spends a lot of time on matters other than those we are debating, but I have given most of my recent political life to the cause of protecting our citizens, through co-operation with our European partners, from the fast-multiplying threats of terrorism, evil criminality and cybercrime, while ensuring, as far as possible, their freedoms and rights as individuals. Surely, that is the primary duty of us all in the undoubtedly difficult phase of national life we are now entering.

Photo of Lord Judd Lord Judd Labour 8:51 pm, 7th February 2017

My Lords, like everyone else who has spoken, I put on record my tremendous appreciation to the noble Baroness, Lady Prashar, for what I think is a first-class report that is a hard-hitting report in the very best sense—as a focused report, it is a model—and tribute is therefore due to all the members of her committee, to the officials who worked with them and to the witnesses, who are tremendously important. I often think that in our debates here we do not look enough at the evidence given as the basis for the committee’s conclusions, because often the evidence gives powerful argument.

In a reflective and wise intervention, my noble friend Lord Soley made almost in passing what is a crucial point, when he said that the approach in Britain to European matters has been that it is an economic initiative, whereas for almost everybody else in Europe it is a political matter. In the context of this debate, one reason that we are in the predicament that we are in is that we have never understood or embraced the concept that, when the original statesmen were founding the European Coal and Steel Community, it was important in itself as an economic and commercial matter but it was not the end; it was a means to an end. They were motivated and driven by the concept of the peaceful, secure Europe for which they were working. At every step which has taken place in the institutions, we have fallen into the self-deluding trap of saying, “We are looking at this just in economic terms”. Historically, it has never been just economic; it has been about building a Community. Now, in a very specific and immediate area, we are faced with the consequences of that.

I must declare an interest, because I serve on the justice committee. As I have listened to the debate, and as I read the report, it strikes me how much in common we are learning on the two committees. In the justice committee, particularly in the realms of matters such as family law or commercial law, we have heard witness after witness tell us that things are so much better, logical and helpful in the context of what has emerged than they were before.

This brings us to the issue of the referendum. Like everybody else, in this debate anyway, I accept that the referendum has happened. I deeply regret the outcome, but it has happened, and we have to approach things in the reality of that result. But that does not mean that we should shun the responsibility of learning from the experience of the referendum. The wicked reality of the referendum was that it was dominated by emotion and an absence of sufficient concentration on the reality of the situation.

Previously, I served on the home affairs committee under the noble Lord, Lord Hannay, and then the noble Baroness, Lady Prashar. What struck me when we looked at those matters at that time was that every single witness, as far as I could make out, who was operating in the sphere of policing and security said that it would be completely illogical to come out of the Community because, if they were to fulfil their task, what had happened and the co-operation taking place was essential to success. Some put it quite strongly, actually—I must commend them as officials.

It is a very serious matter, and we need to look at this. As a political community in this House, and in the Commons, irrespective of party, bear a heavy historical responsibility because we have allowed the populist press to get away with running the argument and failed to communicate the reality, or even give the serious press the amount of information or support that they deserve.

I am not a lawyer and I have not served in the police or security services, although I have the utmost admiration for them. I look at these matters as a political animal. But what should we be learning from this? What does sovereignty mean in the age in which we live? How can we allow our debate and considerations to be dominated by this preoccupation with sovereignty? I cannot think of a single issue facing my children and grandchildren which can be properly solved in a completely national context. The way in which you look to the interests of British children, adults and the vulnerable is in an international context. Terrorism is international, as is crime and trafficking. None of those matters respects borders. Drugs are an international consideration.

How on earth does it advance the interests of the British people to say that we want to reassert our sovereignty and take back control for ourselves? That is not the way to look to the interests of the British people. We look to those interests by seeing that our future lies in our effectiveness in international co-operation and as leaders in international co-operation. When it comes to this business of wanting to free ourselves from the dominating and suffocating business of European law and European legal professions and the rest and take back these matters into our own hands, how many people realise that, in these new arrangements that are emerging to which I referred, so often it was British lawyers who took the lead in making them a success? Why is that not more strongly asserted?

I will conclude on this note. Clearly, we have some very hard work to do in the future, but an even greater challenge is enabling the British people to understand the reality of the age in which we are living. It does not matter only in the realm of trafficking, crime or migration; it matters in the realm of climate change. How do you solve climate change as a sovereign island on your own? You meet the challenges of climate change in the context of your international approach. It reaches into every dimension of government and politics. I have no doubt that history—if it survives as a discipline, under the crude pressures that operate today—will judge us on how far we, as political leaders, have enabled people to understand their global interdependence and how we, as political practitioners, develop and strengthen global institutions, not just European ones, to meet the realities with which we are confronted.

The concept of global interdependence, and of our being judged by the success we make of realising this and fulfilling our destiny within it, is the future strength of Britain. After the experience of the referendum, all of us, irrespective of party, clearly have a very big task and challenge to get our heads down and make sure that we make that our priority.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Liberal Democrat 9:02 pm, 7th February 2017

My Lords, this is a very important report and the way the noble Baroness introduced it today was helpful and clarified the detail. We need to implement this absolutely excellent report. When will the negotiations start? If we have a hard-Brexit response from the members of the European Union it might be difficult to promote the detail of this report. This might be done in the lead-up to Brexit and we should accept the recommendations of the committee chaired by the noble Baroness.

The options available to the Government are, to some extent, contrary to what they have said. They have said that they want to legislate in Westminster, in place of the European Union. However, I think that the law enforcement agencies would like to see the current arrangements maintained. The evidence which the committee took was overwhelmingly in favour of the status quo. There is a mutual interest across Europe in ensuring that the safety of citizens is secured when the UK leaves the European Union. We would be wise to open discussions before we get into Article 50 and the arrangements for exiting the European Union.

The European Union institutions should be accessible to the United Kingdom to enable it to secure close co-operation with the police and law enforcement in the other 27 member states. Europol is a very strong organisation. Data show that Europol’s response is much quicker than that under the previous arrangements. Given the existence of Eurojust, the Schengen information system, the European arrest warrant and extradition agreements, there would be no quick fix if we went back to the 1957 arrangements. The European arrest warrant has resulted in quicker extradition arrangements. The oversight and adjudication of the European Court of Justice should be accepted in these cases. However, that does not mean that the other measures of the European Court of Justice need to be accepted. British influence has helped develop policies in this area. We will lose out if the European Union develops policies with no contribution from Britain. When the United Kingdom leaves the European Union, it will also leave the 35 pre-Lisbon treaty police and criminal justice measures that the Prime Minister described as vital when she was Home Secretary. I hope she will recognise that these 35 pre-Lisbon treaty police and criminal justice measures will require to be saved.

Bill Hughes, the former Director-General of the Serious Organised Crime Agency, warned that,

“the UK is seen as a major and leading partner”,

in the development of security. That seems to be worthy of maintenance. To bring back control of the laws to Westminster would change what Bill Hughes put forward as worthy of continuing. It is incompatible to maintain the current access to law enforcement intelligence held in Europol if we do not accept the need to belong. Accountability now is to the European Commission, the Court of Justice of the European Union and the Parliament. These issues should be accepted by the nation.

On data sharing, the Schengen information system contains information that 35,000 people are wanted under a European arrest warrant. Each of the police and criminal justice measures that the UK rejoined in December 2014 are worthy of being maintained now. Extraditions these days under the European arrest warrant take days rather than months or years. The arrangements suggested by the committee are worthy of implementation, and before the Brexit negotiations occur.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench 9:12 pm, 7th February 2017

My Lords, the report we are debating this evening about the implications of Brexit in the field of internal security and police co-operation is truly excellent. I congratulate the committee and its chair, my noble friend Lady Prashar, who introduced the report so eloquently this evening, on its quality. As one who is not a member of the sub-committee but was its chair some years ago, I can say that without self-congratulation but with the benefit of experience. Listening to the debate this evening, I get a slight feeling of déjà vu all over again, because of course we went through all this over Protocol 36, and quite a lot of the personae dramatis are still around, including the Home Secretary, who has of course moved into No. 10, and various other noble Lords around this Chamber this evening who were involved in that.

We should not forget that this report is of course one of a suite of six produced by the EU Select Committee. They are a standing reproach to the Government’s failure until a few days ago to provide even the fairly skimpy indications given in the White Paper. The report spells out in detail why it is in the UK’s national interest now to negotiate the closest possible relationship with the European Union in these policy fields, preserving if possible the great advances in law enforcement co-operation that have taken place over the last few years. I say that about the national interest without the slightest hesitation, because that was the conclusion of the House of Commons by an overwhelming majority and the conclusion of this House by unanimity, only two years ago in 2014. Having said rather a rude word or two about the White Paper, I recognise and welcome that the Prime Minister singled the sector out and endorsed that view about the national interest in her Lancaster House speech. The White Paper continues that work. As other noble Lords have said, the challenge now is to turn that into reality in the Brexit negotiations which begin next month. As the report says, that will neither be easy nor straightforward. Here are just a few thoughts on that.

First, we need to realise that there is a cliff edge in this sector if the two-year period provided for under Article 50 expires without any agreement on either a temporary or lasting solution. This cliff edge is far more real than it is in the trade field, where, as the noble Lord, Lord Kirkhope, said, we can always fall back on the plan B of WTO membership—although that is, in my view, likely to be quite damaging to this country’s economy. But there is no plan B for justice and home affairs. If we go out then, we shall simply drop out of membership of Europol and Eurojust, and we will lose the European arrest warrant overnight. We will lose the ability to extradite wanted criminals out of this country back to the places they are wanted, in one direction, and back into this country when they have committed crimes here—there are many examples of people we have got back in that way. We will lose overnight the Schengen information system, the European criminal records system, the Prüm decisions on DNA and other information, and the passenger name recognition arrangements for civil aviation. That is an awful lot of things which we cannot afford to do without. However, on the day we leave without an agreement, that is what will happen. We should have no illusions about that.

Secondly, any negotiations for the new relationship will not be able to duck the tricky issue of a continuing budgetary contribution. After all, you cannot have this sort of co-operation for free, nor should we think that we can—it costs money. There will have to be some judicial mechanism, and here my noble and learned friend Lord Brown set out with wonderful clarity what the European Court of Justice means in this area and why we cannot simply demonise it, as the Government have been doing systematically for some months now. I have to say I find that fairly astonishing. Look at the 44 years in which we have been under the jurisdiction of the European Court of Justice. Of course there have been occasions when it has ruled in a way we have found inconvenient or even infuriating, but they are as nothing compared to the number of times it has struck down non-tariff barriers in other member states, ruled as illegal state aids that were preventing our firms competing, or removed all sorts of restricted practices. Why on earth we feel the need to demonise it now, I do now know.

Frankly, whatever we do in the general sense, in this sector we cannot afford to ignore the need for some form of dispute settlement procedure. Such a procedure has to be not only between Governments, which could perhaps be based on a model of the EFTA court, but between individuals, because the European arrest warrant involves individuals. They may wish to take their case to a court, so we have to have somewhere for them to go. If we are to preserve the arrest warrant system, there has to be some recourse for our citizens and for other citizens in Europe to a court or dispute mechanism of some kind. We cannot avoid that. It is welcome that the Government have recognised in the White Paper that there will have to be some form of dispute settlement procedure—having been in a state of denial up to now—but as yet, they have not got very far along the learning curve.

Thirdly, we need to face up to the issue raised by the noble Lord, Lord Kirkhope: we do not just want a static solution that works on the day we leave. We need to produce a living solution that will continue to work in the years ahead when we will be outside the European Union, and the European Union will be developing co-operation in these fields, hopefully in close concert with us.

We really need a process by which Britain can opt in to new measures when it wants to. If not, we will have the agony that was experienced at the other end of the Corridor every time a measure had to be adopted through the opt-in procedure. There was a great rampage about how awful it was that we were accepting this and accepting that; then, when they got into the Division Lobbies, there were about 25 votes against 530. We must try to avoid that. In the negotiations, the Government need to look for a simpler method of opting in to continuing with new legislation, because the criminals will not stop. The international dimension of their crimes will not stop and we will need to work with our former partners if we are to achieve anything like the results we want in this field. That aspect of this continuing issue needs to be taken into account.

The three points I have raised may seem daunting, and they are. I do not doubt that they are difficult for the Government. There will be plenty of naysayers in Brussels and in Westminster, but the mutual advantage—indeed, the mutual necessity—of sustaining close and effective co-operation on these matters should enable those obstacles to be overcome. I look forward to hearing from the Minister how the Government intend to set about doing that, and in particular her response to the three points I have raised. I hope our negotiators will remember one truth: our national internal security neither stops nor begins at the water’s edge.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour 9:23 pm, 7th February 2017

My Lords, it is always a pleasure to follow the noble Lord, Lord Hannay, particularly in a debate on Europe, on which he knows so much and has so much experience. But I thought on this occasion that he was rather more optimistic than I was about the chances of the Government coming to some satisfactory negotiation with our European partners. I find rather more convincing the analysis that we heard earlier from the noble Lord, Lord Condon, and the noble and learned Lord, Lord Brown.

I add my voice to those who have already paid tribute to the noble Baroness, Lady Prashar, and her committee. It is an excellent report. It is not too long, thank goodness, which most reports in this House are. It is very lucid and well written, as most reports in this House are. It is decisive, which is essential, and it has given rise to a very useful debate.

Well, here we go. Not a week goes by without us suddenly having a new insight into the costs of Brexit and the wanton damage and destruction that this process will bring about for our country if it goes very much further. There is pretty much unanimity in the House this evening on the matter of the costs of Brexit in this area. I think that in their analyses everyone has agreed in principle with the remarks of the noble Lord, Lord Condon, who said that anything less than the status quo will lead to a diminution of the security of all our citizens. That is an extremely serious matter. We are facing the prospect of actually diminishing our security. People’s lives will be at risk, and it is quite extraordinary that any responsible Government of an ancient country like ours should seriously contemplate measures which run that risk, but unfortunately that is the truth. I think it is a truth which has been accepted by all speakers in the debate, sad and difficult though it is for many to acknowledge it, but it is a consensus to which I add myself.

I have to say that I do not share the view of most colleagues who have spoken on both sides of the House that we should just despair of this. There has been a sense of hopelessness: “Well, perhaps the British public did not look at the facts, and maybe they did not have the facts they should have had at the time. But it is too late now, it has happened and we have to make the best of a very bad job”. I have never shared that view in politics. If one is heading for a disaster, if you can see that you are sailing into a storm, you change course. Moreover, if you believe in popular sovereignty, you must believe in the right of the people to change their mind if they wish to do so, and in the right of all of us to try to persuade them to change their mind if we think it is important that they should do so in our long-term national interests. I have no inhibitions about that.

I shall go briefly over the points that are most at stake in this case. I do not ask the House to accept my words. I shall rely entirely on the testimony offered to the committee, which is now before every Member of the House, and indeed the Government’s own statements on the subject. Let us take first the issue of Europol because we all know how important it is. The report states:

“Our witnesses were unequivocal in identifying the UK’s future relationship with Europol as a critical priority. They also made clear that an operational agreement with Europol akin to those that other third countries have negotiated would not be sufficient to meet the UK’s needs”.

That is a decisive and extremely well-thought-through conclusion. The report goes on:

“Achieving it, however, may be problematic”.

In other words, we have a great asset in Europol since it is both useful and vital, but the Government are putting the whole thing at risk and we may not get any kind of deal which even begins to substitute for the utility of the asset we currently have.

Let us move on to some of the other issues about information exchange between police officers, which is obviously very important. I refer to the Schengen information system, known as SIS II. It was described by the National Crime Agency as,

“an absolute game-changer for the UK … It is linked to the Police National Computer so that officers can stop a car with French plates and Hungarian nationals in it, undertake checks and find details of stolen property, wanted people, alerts and the like”.

It is clearly an enormously useful instrument for policing which we may be on the point of losing. I turn now to the Prum measures, which ironically came into force only just last year:

“The Prüm Decisions require Member States to allow the reciprocal searching of each other’s databases for DNA profiles (required in 15 minutes), Vehicle Registration Data (required in 10 seconds) and fingerprints (required in 24 hours)”.

Here again we risk taking away from the British police. I also refer to Professor Peers, who commented on SIS II.

The report is equally clear about the European arrest warrant, stating,

“the Government suggested that ‘Norway and Iceland’s Schengen membership was key to securing even this level of agreement’, and that ‘there is no guarantee that the UK could secure a similar agreement outside the EU given that we are not a member of the Schengen border-free area’”.

The European arrest warrant, which we have heard is so important to policing, is itself at risk. The committee’s view, which it is giving to the House this evening, is that there is no real likelihood of our being able to get anything as good as we have at present in any of these three areas.

In those circumstances, I put to the Government two questions. First, what is stopping us remaining part of this home affairs and justice system—of Europol, the Prüm system, the information exchanges and part of the European arrest warrant? Secondly, if nothing is stopping us, why do the Government not want to remain part of it? Is there a pragmatic reason in terms of national interest why we should not remain part of a system that, in the views of everybody who has expressed a view this evening, including some very expert people, is clearly essential to our security in those areas? If the Government are saying there is no practical reason why we cannot be a member of the system and it is simply that we do not like the European Court of Justice or the politics, I am afraid they are contradicting themselves. This has already been quoted many times, but the Government said in 2014 that they would,

“never put politics before the protection of the British public”.—[Official Report, Commons, 10/11/14; col. 1224.]

If they are saying, “We have a very good system here protecting the British public—the best we have ever had. We want to get rid of it not for practical reasons, but mainly for political reasons”, by definition they are in contradiction of their own commitment. I could use non-parliamentary language to describe the situation in which they proceed directly in contradiction with the description of their activities that they have given to the public.

Those two questions are very important. What is stopping us remaining full members of these institutions? If it is simply because the Government do not want to join them, why do they not?

Photo of Lord Stevens of Kirkwhelpington Lord Stevens of Kirkwhelpington Crossbench 9:31 pm, 7th February 2017

My Lords, before speaking to your Lordships’ House I declare an interest in that, after being Commissioner of the Metropolitan Police, I was chairman of the advisory board of Interpol for three and a half years.

I pay tribute to the noble Baroness, Lady Prashar, and the outstanding work done by the sub-committee in the report. Time is moving on, and this report encapsulates some of the problems enshrined for policing in future if we depart from the EU, so I will not detain the House long. However, there are one or two issues I will draw attention to.

So many of the current arrangements and co-operative frameworks in place are, as we referred to, mission critical for UK law enforcement agencies. There is no doubt that exit from the EU places these at risk. We must absolutely underline that, potentially, this will make the United Kingdom less safe if negotiations are not made to secure optimal solutions to the changes that will result from our exiting the EU. The time the negotiations may take and the costs involved in setting up these new systems are surely a major factor. We have heard from the noble Lord, Lord Kirkhope of Harrogate, and the noble and learned Lord, Lord Brown, the time it will take to bring these things into place.

Let us make no mistake that over time the United Kingdom has been a key player in shaping Europol and all the agencies that now work so effectively in the United Kingdom and relate to the EU. By leaving the EU, we will lose an immense amount of influence unless steps are taken to ensure we do not. An issue of great importance is this: my experience over 9/11, which took everyone by surprise, was that we were used by the United States as an entry point into Europe for information and vice versa, because what had been set up by my predecessor as Commissioner of the Metropolitan Police and expanded during that period of time was essential to security, not just of this country and Europe, but worldwide.

The report says that we have a strong mutual interest in going forward with the EU and its organisations. There is a fair amount of optimism that these mutual interests will play a very big part in allowing us to continue with the structures that we have at the present time. However, I draw attention to the report’s point that this could lead to a false sense of optimism with regard to the United Kingdom’s strength in negotiation. With the UK departing the EU, we will no longer be accountable to the same oversight and adjudication as the EU 27, notably in respect of us working together with the EU. There is even doubt as to whether the EU 27 will be amenable to creating bespoke adjudication arrangements or whether such arrangements would be an adequate substitute for the existing arrangements. There will be tensions, which were outlined more eloquently than I can this evening.

For me, Europol is an example of why we should have a certain amount of optimism. We have been at the very centre of creating Europol; Europol is a success because of some of the inputs and leadership shown. At one stage—I do not know whether it is the case now—40% of Europol was staffed by United Kingdom police officers and staff. Nobody could say that Europol has not been a massive success in both arrests and protecting this country. There are mutual benefits both for those 27 countries in Europe and for ourselves. Of course there are, but we should not take that as an excuse for false optimism for the future.

It is on the data–sharing issue that I get particularly passionate. In 2014 and 2015, the Government and Parliament judged that it was in the UK’s national interest—as has been outlined by my noble friend Lord Hannay—to participate in data-sharing platforms, such as the second generation Schengen information system, the European Criminal Records Information System, the Prüm decisions and the passenger name records. It means that police officers operating out there on the streets of London and around the United Kingdom and those operating within Europe have an ability to get information immediately. It means that someone stopped in Soho five to six years ago for murder was identified immediately because of these systems. It means that passengers going on to planes can be identified as suspects around the world and, particularly, within Europe. We need it: it is essential for our safety. It would be absolute madness to destroy that.

In relation to the European arrest warrant, which is critical to law enforcement capabilities, I believe—I could be wrong, but I hope that I am right; the noble Lord, Lord Paddick, referred to it—that the report recommends that the UK follow precedents set by Iceland and Norway in terms of bilateral extradition agreements with the EU, which mirror the existing provisions as far as possible. This agreement was signed over a decade ago and has still not come into force. If that is the way that we are going to be approaching our negotiations on where we are going in the future, it is an unacceptable risk. It creates unacceptable dangers and we must make sure that the Government do not fall into that trap.

The noble Lord, Lord Wasserman, spoke with great optimism about the police service and the security forces taking this thing forward on their own. I thank him for that: it is nice to know that there are people with confidence in policing these days. However, it needs political support at the highest level; it needs the negotiation skills that are in this Chamber now; and it needs these people to be pragmatic, direct and persuasive.

I have some questions for the Government before I sit down. Have they worked out how long it will take to negotiate the UK back into systems we may well be part of when we depart, perhaps in two years’ time? Is the risk to the safety of the people of the United Kingdom which will arise out of operational gaps a priority? Surely, it must be.

Are the precedents laid out in this report in relation to the problems and the detail of those problems going to be taken into account? Someone referred to holding the Government’s feet to the fire. I think we have an absolute duty to do so in this House. It is essential that we keep coming back to this report and, if I may say so, growing it in the way that we talk about in relation to our safety.

A further question is: should this negotiation phase be entered into, what will happen in the meantime, given the loss of data systems and databases that are absolutely crucial, as I have outlined, to our everyday policing? Without this work—you need only talk to officers on the street—the safety of this country could be hampered for years, and that is totally unacceptable. My noble friend Lord Condon talked about the status quo. What is wrong in trying to hold on to the status quo until we have something else which is viable to take its place? If we do not do that, there will be a gap and a vacuum which is incredibly dangerous to the safety of this country.

What will be the cost of setting up new systems, which will run into millions of pounds? Have the Government looked into that, or into who will pay for it? Do the Government foresee years of expensive negotiation as the only way to settle these issues, or is there another way to secure essential EU relationships and fill operational gaps in order to maintain public safety? Surely, we need to address these questions.

It took an awfully long time to create what we have created. Some people have said to me as I go round the world that it is an exemplar of how the world should operate in the very dangerous environment that we are in now. Would it not be an absolute tragedy if this were destroyed overnight?

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 9:43 pm, 7th February 2017

My Lords, my noble friend Lord Maclennan reminded us, as does the report, that the Prime Minister, when Home Secretary, said that it was vital that we stayed in the 35 policing and justice measures. The noble Lord, Lord Kirkhope, with whom I worked for 15 years in the European Parliament, strongly backed this up. He and I did not always agree during those 15 years but I am glad to say that we do now. The report stresses that the measures we are talking about are part of a complex and interconnected network of agreements and arrangements that are difficult to compartmentalise, and of course they have been through a filter, as the noble Lord, Lord Hannay, reminded us. Just two years ago these were boiled down from 130 measures to 35 that the Government regarded as vital. How can they be reduced any further?

However excellent our police are, anything short of full participation is going to be less effective, more cumbersome and more long-winded and will therefore hamper our police and prosecutors in apprehending criminals and terrorists, as the noble Lord, Lord Condon, reminded us. Indeed, we could, in the words of the noble Lord, Lord Hannay, fall off a cliff edge in this area, which would be unacceptable. Of course, we were blessed with not one but two former Met commissioners in the debate. The noble Lord, Lord Stevens of Kirkwhelpington, has just stressed that the UK has been a key player in EU co-operation. The noble Lord, Lord Soley, listed almost all the Brits in top positions. We have also had several—two at least—presidents of Eurojust.

Other noble Lords have picked out adjectives in the report in order to stress the key importance of participating in all these measures. I will not repeat them. Europol is a “critical priority”. Of course, it is only as a full member of Europol that we get the full rights of direct access to intelligence and information, and the ability to share those. On Eurojust, the Crown Prosecution Service said that,

“they were heavy users of Eurojust, listing it among their top priorities for any forthcoming negotiation”,

and that bilateral arrangements such as liaison prosecutors cannot,

“do what Eurojust does, which is to facilitate the multi-national co-ordination that is so important”.

The European arrest warrant is dear to my heart. My last work in the European Parliament was to write a report on the reforms that the European arrest warrant needed. This has not been pursued by the European Commission, to my regret. It could be improved but we need to work with what exists. The noble and learned Lord, Lord Brown of Eaton-under-Heywood—we were also blessed with a former Supreme Court Justice—said that it was impossible to overstate the importance of the European arrest warrant to securing justice. The report says that it is,

“a critical component of the UK’s law enforcement capabilities”.

The report also says that it would be,

“an abrupt shock to UK policing … posing a risk to the safety of the public”,

if we were not involved in the data-sharing arrangements. The National Crime Agency was,

“emphatic about the operational significance of access to SIS II”.

It said that being in SIS was one of its “top three priorities” and,

“an absolute game-changer for the UK”.

One could go on.

The case is so powerful and has been made so strongly tonight that we must stay in these measures. What is stopping us? Essentially, the Government are putting their objections to the European Court of Justice above national security. One thing that we will need to comply with are the data-protection arrangements, as enforced by the European Court of Justice. The report says that this is going to be,

“a necessary pre-condition for exchanging data for law enforcement purposes”.

The outgoing Independent Reviewer of Terrorism Legislation, David Anderson, said:

“It should not be assumed that Brexit will relieve the UK from the need for compliance with standards of privacy and data protection set out in EU legislation”,

or by the European Court of Justice.

We must also expect greater scrutiny of our surveillance practices, which perhaps we have not had to the same extent as has the United States while we have been a member of the EU. I think we can expect the content of the Investigatory Powers Act to come under close scrutiny when we are seeking an arrangement with the EU without being a member, particularly if we are trying to avoid oversight by the European Court of Justice. The Government claim that security is a top priority but they simply cannot deliver the same level of functionality if we are outside the EU framework because they are not in fact making security a top priority; they are making the political red line that suits the Conservative Party—rejection of the ECJ—the top priority. There was an astonishing response which the Secretary of State for Exiting the EU, David Davis, gave to a member of the other place. I confess I had not picked it up but I looked it up online. He said that yes, we would have to pull out of Prüm—I think he was referring to other measures—because we had to avoid the jurisdiction of the ECJ. That is a very peculiar turnaround of priorities.

The report reminds us that there is this tension between the maintenance of strong security co-operation and refusing oversight arrangements—perhaps not only those of the court but those of the European Parliament as well. We know that our police will do their best but it would be a dereliction of duty to fail to give them the support they need to work with their counterparts in other member states because of what I think the noble and learned Lord, Lord Brown, referred to as a doctrinal objection.

The Government will seek bespoke adjudication arrangements. We must hope that they will succeed however they can in keeping us close to practical EU co-operation, but there will be real problems in trying to step aside from the ECJ. The EU can act only in compliance with the European Charter of Fundamental Rights, and the court is the ultimate arbiter of that. It is impossible for the EU to sign an agreement with the UK that conflicts with either the charter or ECJ case law.

The agreement will have to be policed and enforced. If the UK acted in ways that breached the terms of our agreement, it might be open to an EU citizen to take a case to the ECJ and get the decision including the UK agreement annulled. That is what happened to the safe harbour arrangements with the US when an Austrian student, Max Schrems, went to the court because of concerns about US intelligence agencies. We need to think through what could actually happen. We will have to keep up with legal developments in the rest of the EU, a point that has been made this evening, because if we diverge from EU law a gap will open up and we will leave ourselves open to the potential of the agreement being annulled. It remains to be seen whether our EU partners will agree to set aside the ECJ in favour of a bespoke dispute resolution mechanism. But we do not seek just to stay in one measure, whether that is Europol, SIS, the EAW or whatever. We want to remain in the whole package and there is no precedent for the EU agreeing to sideline the ECJ with such a large agreement as we would seek.

I conclude that it would be truly extraordinary if the mantra of taking back control, interpreted by this Government as avoiding ECJ jurisdiction, ended up handing control over to the criminals and terrorists. When you have the experience that we have listened to this evening on the police and judicial side urging the Government to put safety first and back our police and prosecutors, it would surely be an unpatriotic neglect of national security to put political prejudice first—and, in the words of the noble Lord, Lord Hannay, to demonise the court. That would involve being soft on crime, and I am sure the Government do not wish to do that.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 9:54 pm, 7th February 2017

My Lords, I fear that most, if not all, of what I want to say has already been said a number of times this evening; nevertheless, I still intend to say it—in somewhere near 10 minutes, I hope.

Along with other noble Lords who have spoken, I, too, express my thanks to the noble Baroness, Lady Prashar, and her sub-committee for their very helpful and comprehensive report. The committee pointed out that it was only two years ago that many of the EU measures we are now due to leave with our exit from the European Union were deemed vital by the then Home Secretary, to the extent that, having exercised a block opt-out from police and criminal justice measures from December 2014, we promptly opted back in to 35 of them from the same date, accepting, as well, that the enforcement powers of the European Commission and full Court of Justice of the European Union jurisdiction would apply in respect of those 35 measures.

The Government’s recent White Paper declares an intention, after we depart from the European Union, to,

“continue to work with the EU to preserve UK and national security, and to fight terrorism and uphold justice across Europe”.

The Government also state in paragraph 11.7 of the White Paper that they will,

“look to negotiate the best deal we can with the EU to cooperate in the fight against crime and terrorism”,

and that:

“Public safety in the UK and the rest of Europe will be at the heart of this aspect of our negotiation”.

That is not, of course, the same as saying that public safety will be paramount or the number one priority.

The report from the EU committee sets out some of the issues that will have to be addressed if the Government’s objectives are to be achieved. Most significantly, the report states in its introductory summary:

“We caution, however, against assuming that because there is a shared interest in a positive outcome, negotiations will unfold smoothly. Even with the utmost good will on both sides, it seems inevitable that there will be practical limits to how closely the UK and the EU-27 can work together on police and security matters if they are no longer accountable to, and subject to oversight and adjudication by, the same supranational institutions, notably the Court of Justice of the European Union. There is, therefore, a risk that any new arrangements that the Government and the EU-27 put in place by way of replacement when the UK leaves the EU will be sub-optimal relative to present arrangements, possibly leaving the people of the UK—and their European neighbours—less safe”.

Do the Government agree?

The committee also goes on to say in the summary of its report that in leaving the EU, we will lose the platform from which we have been able to exert influence on the development of EU agencies, policies and practice in the field of security and policing, and that this will result in an attendant risk to our ability to protect our security interests in future. The committee goes on to say that accordingly,

“the Government will also need to examine what structures and channels it should remain part of or find substitutes for in order to influence the EU security agenda, which will inevitably have implications for the UK’s own security”.

Do the Government agree?

The committee also says:

“There must be some doubt as to whether the EU-27 will prove willing to establish the ‘bespoke’ adjudication arrangements envisaged by the Government”,

that this issue may prove particularly difficult in the negotiations on our future relationship with EU agencies such as Europol, and that it may also affect the likelihood of maintaining mutual recognition of judicial decisions in criminal matters. The Government told the committee that in future laws would be made in Westminster, not in Brussels, and would be interpreted by British courts, not the European Court of Justice. As a result, the Government had concluded that any new arrangements that have to be put in place, or which may be put in place after our withdrawal from Europe, would have to be the subject of bespoke adjudication arrangements which, as the committee pointed out, rather begs the question of whether the EU 27 are likely to be willing to devise such arrangements in order to facilitate co-operation with the UK.

In the light of this, the committee considers it conceivable,

“that the Government will encounter a tension between two of its four overarching objectives in the negotiation—bringing back control of laws to Westminster and maintaining strong security co-operation with the EU”.

The committee’s view was that the safety of the people of the UK should be the overriding consideration in attempting to resolve that tension, and it urged the Government in its report to ensure that this is the case. Could the Government say clearly whether that would be their stance in such a situation?

The Government have a responsibility to provide firm assurances that our nation’s security and our ability to combat crime within our borders will not be compromised by our decision to leave the EU and what flows from that. I invite the Government to give that assurance tonight, not by saying that that will be an overarching objective, but by saying that it will actually and definitely be the case. The security threats we face are not confined to our national borders any more than they are in other European countries, which is why there is the current level of co-operation between European countries on security, policing and criminal justice issues. Whether we are confronting international terrorist networks, tracking down those seeking to evade justice, obtaining vital information on the activities of suspects abroad or seeking to maintain effective border controls, it makes more sense to act together.

Our ability, on our withdrawal from Europe, to continue to participate in the European arrest warrant arrangements, our continued future relationship with Europol and our future access to Europe-wide crime prevention databases, including the Schengen information system, are key issues affecting our nation’s security and are among the matters addressed in the committee’s report. Since the European arrest warrant was introduced in 2004, the United Kingdom has used it to bring more than 2,000 individuals from outside the UK to face justice, according to my information. We will have hurdles to overcome if we are to maintain the current arrangements when we are not in the European Union. The alternative is that we fall back on previous extradition treaties that are far more cumbersome and far less effective.

The committee says in its report that its witnesses were unequivocal in identifying the United Kingdom’s future relationship with Europol as a critical priority. However, that does not necessarily appear to be the Government’s stance, since the Secretary of State for Exiting the European Union said in the House of Commons a few months ago, when asked whether we could maintain our membership of Europol, that the Government’s objective was simply to preserve the relationship with the European Union on security matters as best we can. The recent White Paper does not appear to take us much further forward, except to say:

“We are driving, or co-driving, almost half of Europol projects against serious organised crime”.

That could be interpreted as the Government’s stance being that other European nations will therefore be clamouring to give us whatever we want in respect of our future relationship with Europol. Perhaps the Minister could say whether the Government share the unequivocal view of the witnesses to the EU sub-committee that our future relationship with Europol is a critical priority. If so, what criteria would have to be met for the Government to deem acceptable our future relationship with Europol once we have left the European Union?

Access to pan-European databases is particularly important for our police. Can the Government say whether we will still have access to these databases when we are outside the European Union, and if so, on what basis, bearing in mind that the most recent Home Office annual report said that strengthening data exchanges with our European allies was essential to combating terrorism?

We have real concerns that it will become more difficult for us to protect our citizenry when we leave the European Union because the complexities of maintaining the current cross-border co-operation between our police and security services will become greater. That will certainly be the case if the Government intend to stick rigidly in the negotiations to each and every one of their top four overarching objectives—particularly the control of laws having always to be at Westminster and always being interpreted by British courts, whatever the consequences. The Government need to remember that although the people of this country voted to leave the European Union, they did not vote to put at risk either their own personal security or that of the country as a whole.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 10:04 pm, 7th February 2017

My Lords, I take this opportunity to thank the EU Home Affairs Sub-Committee for producing its report, Brexit: Future UK-EU Security and Police Co-operation. In answer to some of the questions from the noble Lord, Lord Rosser, I say that the Government will respond specifically to the report. I am grateful to those who have spoken during today’s long debate and in particular to the noble Baroness, Lady Prashar, for securing it.

A wide range of views have been expressed from across the Chamber, but I am reassured by the broad consensus across the House that the Government should continue a high level of co-operation with our EU neighbours on security and policing matters. The Government are committed to strong practical co-operation on security, law enforcement and criminal justice now and after we leave. We will work with our European partners as we negotiate our exit to find solutions that promote security in the UK, across Europe and beyond. I am very pleased that my noble friend Lord Wasserman is optimistic about the future.

The perpetrators of crime and terrorism do not respect borders, and the threat that they pose is becoming increasingly transnational. We know that international organised crime groups exploit vulnerabilities such as inadequate law enforcement and criminal justice structures. Furthermore, threats such as cybercrime and online child sexual exploitation are by definition international in a technically interconnected world. In the face of these common threats, it is difficult to see how it would be in anyone’s interest for exit negotiations to result in a reduction in the effectiveness of security, law enforcement and criminal justice co-operation.

Our relationship with the EU currently centres on a number of practical co-operation measures that have been developed in response to the changing shape of the EU and the evolving threat of international crime. We continue to value our co-operation and information sharing through measures such as the European arrest warrant, which so many noble Lords have mentioned, together with Europol, the European criminal record information system and the second-generation Schengen information system, in our effort to fight crime and prevent terrorism. The UK will continue to participate fully in all these measures while we remain a member of the EU.

Leaving will of course mean that our relationship with the EU will have to change. In the UK we are examining the mechanisms now in place to support practical co-operation in the fight against crime and terrorism, to help to identify potential options for how we might work with our EU partners in future. Looking ahead, we need to negotiate the best deal that we can with Europe, including thinking about the tools and mechanisms for co-operation with EU member states that help to keep all European citizens safe. The UK’s future access to the practical mechanism through which we co-operate with the EU will form part of the wider exit negotiations. The UK is in a unique position, having taken a leading role in developing—

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

The Minister says that when we leave the EU our relationship with the institutions in the justice and home affairs field will have to change. Will they have to change because the Government want them to change, or in her view will it be because our European partners will insist that they change?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, they will change because that is an inevitable fact of leaving the EU. We will no longer be members of the EU.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

That is not an answer.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

Well, that is the answer that I am giving the noble Lord. Perhaps at this late hour he will indulge me until I get to the end, and he might be a bit more satisfied by the time I have finished.

Looking ahead, we need to negotiate the best deal that we can with Europe, including thinking about these tools and mechanisms with EU member states that help to keep European citizens safe. We are in a unique position, having taken a lead role in developing the practical co-operation measures now in place across the EU, and our expertise and drive for high standards are valued by our EU partners. That is why we will not seek to adopt a model currently enjoyed by another country; we are looking for a bespoke approach that works for the UK as well as for the EU.

Those negotiations will be complex and lengthy, and it would not be appropriate to pre-empt the outcome. I know that many noble Lords are anxious to understand the detail of the relationship that we may agree with the EU but, although the Government are keen to provide clarity where we can, it is also important that we do nothing to undermine our negotiating position.

What is absolutely clear is that this Government are committed to ongoing co-operation to keep all European citizens safe—a point that noble Lords have made—and that the desire to do what is necessary to keep our people safe is not one-sided. My ministerial colleagues have spoken to their counterparts in several EU countries, and I am reassured to hear that there is a shared understanding of the importance of effective ongoing co-operation.

I will now respond in more detail to some of the points that noble Lords have raised this evening. All noble Lords have talked about our relationship with Europol. As noble Lords have said, Europol’s prime objective is to strengthen and facilitate co-operation in preventing and combating serious organised crime and terrorism. By providing a platform for members to share intelligence and information, and through a strong analysis function, it offers unparalleled opportunities to prevent serious crime and protect EU citizens, including those in the UK. The UK plays a lead role in Europol; indeed, the UK staffs one of the largest national desks in the organisation and is one of the biggest contributors of information to Europol systems. We value our participation, and will continue to play a role while we remain in the EU. The recent decision to seek to opt into the new Europol measure is testament to that.

As I said, our future practical co-operation will be subject to negotiation, and it is too early to say what shape our relationship with the agency will take after we leave the EU. The models of co-operation enjoyed by other countries, such as the US, illustrate the breadth of agreements that can be achieved with Europol, but the UK will be in a unique position as a former EU member with our history of working with Europol, so we will not be looking to replicate any other nation’s model.

The noble Baroness, Lady Prashar, raised the point that while the report was in preparation a bespoke arrangement was agreed for Denmark, and wanted to know more about it and how relevant it might be for the UK’s future. Denmark’s situation is different from the position that the UK will be in once we leave the EU. It is a member state that does not participate in the new Europol measure but is seeking a special agreement from within the EU. Obviously, that presents a different set of challenges for the parties concerned. The Government are exploring options for Europol once the UK has left the EU, but it is early to speculate on what they might look like.

The noble Baroness and other noble Lords also asked about the relevance of the 2014 opt-in decision. The justice and home affairs opt-out in 2014 gave us the opportunity to consider the value of certain measures to the UK. While that decision provides a reference point, it is important to be clear that the situation following the outcome of the EU referendum means that the context is now different. To state the obvious, we will no longer be a member of the EU so, unlike the 2014 decision, the question now is not whether we seek to rejoin certain measures as a member state; instead, we need to consider how we should interact with the EU security measures from outside the EU.

Quite a few noble Lords asked about Prüm in the context of my right honourable friend David Davis in the other place. During debate, he said that we were making new arrangements for data-sharing. The Prime Minister has been clear that one of her 12 negotiating objectives is to continue to work with the EU to preserve European security, fight terrorism and uphold justice across Europe. She is quite clear about that. As part of the negotiations, we will discuss with the EU and its member states how best to continue co-operation on security, law enforcement and criminal justice.

The noble Baroness, Lady Prashar, also asked about what we should read into the fact that the Government’s White Paper says that in paragraph 12.2 the EU institutions are listed among the entities that will be part of a “phased process of implementation”. The Prime Minister has been clear that she wants us,

“to have reached an agreement about our future partnership by the time the two year Article 50 process has concluded. From that point onwards, we”,

expect a,

“phased process of implementation, in which”,

Britain and the EU institutions and member states prepare for the new arrangements that exist between us. It will,

“give businesses enough time to plan and prepare for those new arrangements”.

It is in no one’s interests for there to be a cliff edge for business or, indeed, for the rest of the country, as we change from our existing relationship to a new partnership with the EU, but that does not mean that we will seek some form of unlimited transitional status. That would not be good for Britain and it would not be good for the EU. As the White Paper says,

“the interim arrangements we rely upon are likely to be a matter of negotiation”.

The noble Baroness also talked about the precedents for adjudication mechanisms and international arbitration in trade agreements. Again, we need to negotiate the best deal that we can for Europe, including thinking about the tools and mechanisms for co-operation with EU member states.

The noble Baroness also asked about the great repeal Bill and made the point about the Government’s intention that, wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before. She asked about how I envisaged the process of converting EU law into domestic law would work in the area of criminal justice. All government departments are currently reviewing the issues and opportunities arising from exit, including the requirements for legislation in addition to the great repeal Bill. We will bring forward a White Paper on the Bill, which will set out our approach to give effect to withdrawal on the domestic statute book, and we will ensure that it is published in sufficient time to allow Parliament to digest its contents in advance of introduction of the Bill in the next Session.

The noble Baroness also asked about Article 50 negotiations. Under Article 50 of the Treaty on European Union, the arrangements relating to the UK’s withdrawal are to be made between the UK and the EU in a withdrawal treaty. The content of the treaty will be a matter for negotiation and our efforts will be focused on getting the best deal possible for the UK in negotiations with the EU.

The noble Lord, Lord Soley, made the point about needing to have a special relationship with the EU and needing new mechanisms for co-operation. As the Government have made clear, one of the 12 objectives of the negotiations ahead will be to establish a new relationship which enables the UK and the EU to continue practical co-operation with other member states to tackle cross-border crime and keep our people safe. We are in a unique position; we are a valued partner in the EU and have played a leading role in the development of a number of the EU’s security measures that are in place. That is why we will not be following any other nation’s model.

The noble Lord also asked how we will operate outside the ECJ’s jurisdiction. The Prime Minister has been absolutely clear that after withdrawal—as the noble Baroness, Lady Ludford, articulated—our laws will not be made in Brussels but in Westminster, Edinburgh, Cardiff and Belfast. The judges interpreting those laws will not sit in Luxembourg but in courts in this country. The authority of EU law in Britain will end. Until we exit the EU, we remain a full member of the Union and the CJEU will continue its work.

The noble Lord, Lord Paddick, talked about sovereignty versus security and suggested that we face a choice between the two. That is possibly overly simplistic. The UK is in a unique starting position, and we will need to negotiate the best deal we can with Europe while recognising that this process will not be brief or straightforward.

The noble Lord, Lord O’Neill, asked how we will secure a good enough relationship on Europol—that is, better than other third countries. We absolutely value the role of Europol in helping law enforcement agencies to co-ordinate investigation on cross-border crime but, looking ahead, we need to negotiate the best deal we can with Europe. We are in a unique position, but it is very early to speculate on what that will look like.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made the point that the EAW is worth signing up to the ECJ and surrendering sovereignty for. As always, he set out a typically forensic and well-informed analysis on the question of sovereignty and the UK’s future relationship with the EU, especially as pertaining to the European arrest warrant. I listened carefully to what he said, but it is too early to speculate at this stage on exactly what our relationship with the ECJ will be after we leave the EU.

The noble Lord, Lord Kirkhope, asked how we create a flexible future relationship with the EU. Are we underestimating the challenge of doing so? However, as the Prime Minister has made clear, one of the 12 objectives for the negotiations ahead will be to establish a new relationship which enables the UK and the EU to continue practical co-operation with other member states to tackle cross-border crime and keep our people safe.

The noble Lord, Lord Judd, talked about trafficking and drugs and the fact that crime is international. In the modern age, we must cede some sovereignty and work with international institutions. I refer back to my answer to the point made by the noble Lord, Lord Paddick, on sovereignty versus security not being a binary choice. The Prime Minister has been clear that, after withdrawal, our laws will be made in Westminster, Cardiff, Edinburgh and Belfast, and the judges interpreting those laws will sit not in Luxembourg but in courts in this country.

The noble Lord, Lord Davies, identified the value of SIS II, Prüm and the EAW. He asked what is stopping us from remaining part of these and if there is nothing why the Government do not want us to join them. The UK’s exit from the EU will put us in a unique position, seeking co-operation on security and law enforcement as a former EU member. We must now work with the EU to agree the way we co-operate on both security and law enforcement after we leave. Although the Government are absolutely committed to future co-operation, I cannot set out a unilateral position ahead of negotiations.

The noble Lord, Lord Hannay, talked of the risk of a cliff edge on the day we leave, with no plan B. We need to agree budgetary contribution and dispute resolution and we need a living solution to avoid a static relationship. The noble Lord identified some of the issues that would need to be considered before and during the negotiations. The UK and the EU have a shared interest in effective co-operation while we remain a member state and after we leave, and the negotiations will need to consider the full range of options. It will be in all our interests to avoid any cliff edge in negotiating with the EU. We will need to reach agreement on a range of matters such as dispute resolution, and we will seek a relationship that is capable of responding to the changing threats that we face.

I am running out of time and I have three more noble Lords to respond to, which I will do in writing. In fact, it is two noble Lords—the noble Lord, Lord Stevens, and the noble Lord, Lord Rosser, in respect of his final point.

The Government recognise the challenge in negotiating a new relationship. However, we are absolutely committed to finding innovative solutions to enable us to continue to work together to keep our citizens safe and to achieve collective security in Europe and globally. Finally, I again thank all noble Lords who have taken part in the debate, particularly the noble Baroness, Lady Prashar.

Photo of Baroness Prashar Baroness Prashar Chair, EU Home Affairs Sub-Committee 10:25 pm, 7th February 2017

My Lords, I thank the Minister for her response. It is reassuring to hear that the Government are committed to effective co-operation on these issues. The expertise around the House on this issue was very evident in the wonderful contributions to the debate. I very much hope that the Government pay heed, consult and talk to people who have that expertise when they proceed with their negotiations. That said, I thank everybody who has supported this debate.

Motion agreed.

House adjourned at 10.26 pm.