Brexit: European Arrest Warrant (European Union Committee) - Motion to Take Note

– in the House of Lords at 3:12 pm on 8th February 2018.

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Moved by Lord Jay of Ewelme

That this House takes note of the Report from the European Union Committee Brexit: judicial oversight of the European Arrest Warrant (6th Report, HL Paper 16).

Photo of Lord Jay of Ewelme Lord Jay of Ewelme Chair, EU Home Affairs Sub-Committee

My Lords, I am very grateful for this opportunity to debate the report on the European arrest warrant. Time passes: the report was published on 27 July 2017, and we received the Government’s response, for which I am grateful, on 23 November last year. With the passage of time the subject has lost none of its importance—indeed, rather the reverse.

In 2002, the European Union adopted the European arrest warrant to facilitate extradition between member states. The European arrest warrant seeks to ensure that individuals face prosecution for their crimes or serve prison sentences for existing convictions in the countries where those crimes are committed. Since the referendum on leaving the European Union in June 2016, the Government have frequently underlined the importance of the arrest warrant. The Home Secretary, Amber Rudd, has paid tribute to the arrest warrant’s effectiveness in delivering criminals to justice. Indeed, she has said that it is a priority for the UK to remain part of those arrangements once we leave the European Union.

During the course of the inquiry, we heard from our witnesses about the benefits that the arrest warrant has brought to the UK. Under the arrest warrant we send around 1,000 people a year to other member states while, on average, more than 200 people are sent back to this country. We should recall that the arrest warrant has brought very high-profile criminals back to the UK. They include the fugitive bomber, Hussain Osman, who attempted a terror attack in London on 21 July 2005 and was arrested a week later in Italy. So the advantages of the system are clear. After Brexit, there will continue to be an operational necessity to deport serious criminals from the UK quickly and effectively and to ensure that those who are wanted by the UK answer for their crimes here. Whatever else Brexit may achieve, it will not, I fear, lead to a reduction in crime.

The Government’s intention to continue efficient extradition arrangements, as stated, for example, in the reply to our report, is welcome but appears to conflict with another of their stated aims: to remove the jurisdiction of the European Court of Justice in the UK. The committee heard, for instance, from Mike Kennedy, former head of Eurojust, that if the court is not to be a final arbiter on any instruments of mutual recognition between the UK and EU on future extradition matters, it is unclear how such instruments would operate in practice.

In this context, our report outlines, first, the pronouncements that the Government have made about the future role of the European Court of Justice and considers whether the Government’s desire to remove completely the jurisdiction of the court can sit alongside a workable system of extradition. It then explores alternatives to the European Court of Justice for resolving disagreements between the UK and the EU. It looks in particular at the EFTA court as a possible, if limited, model, but that, in my view, deserves further study. It also questions whether the EU 27 will be willing to agree to bespoke arrangements solely to accommodate the UK’s negotiation objectives. The final section of the report asks whether alternatives to the European arrest warrant are possible and considers the agreements reached between Norway, Iceland and the EU on extradition and the 1957 Council of Europe convention. It concludes that the Norway-Iceland agreement’s dispute resolution mechanism would indeed be compatible with the Government’s desire to end European Court of Justice jurisdiction. However, those states are members of the European Economic Area and participate in the Schengen agreement; their bespoke European arrest warrant arrangements took some 10 years to negotiate and are still not operational, so it is not ideal, and nor was the Council of Europe convention.

The committee also considered possible transitional arrangements for extradition. We stress in the report that even a transitional arrangement that simply extended the EAW in its current form would be difficult to secure. In leaving the European Union, it is the Government’s intention that the UK will no longer be party to other EU arrangements with a bearing on extradition arrangements. They include the European Charter of Fundamental Rights, a suite of EU directives governing criminal procedural rights, EU data protection laws and laws on EU citizenship. The committee also came to agree with witnesses who said that any such arrangement would be likely to include accepting, at least in part, the jurisdiction of the court. That is because any alternative to that jurisdiction would itself take time to negotiate and agree, time that is already at a premium in the run-up to 29 March 2019.

As successive Home Secretaries have said, the European arrest warrant is strongly in our interest. There is no obvious alternative to it, no plan B which would serve our security interest. Or is there? The Government now talk about a security treaty with the European Union which would cover justice and home affairs questions. The details are elusive, although your Lordships’ EU sub-committee will start an inquiry into the proposed treaty shortly. It would help us enormously if in replying to this debate the Minister could tell us more of the Government’s intention and reiterate the Government’s belief that the European arrest warrant is essential and that its substance must be preserved.

Finally, I want to say a word about Ireland and the European arrest warrant. I was in Ireland last week with the European Union Committee, visiting Dublin, Belfast, Londonderry and the borders. The progress since the signing of the Good Friday agreement was palpable, but so was the concern about the future and about the potential impact of not having the European arrest warrant. The Police Service of Northern Ireland outlined the crucial role the arrest warrant has played in fighting crime and terrorism in Northern Ireland and how it has contributed to effective and important co-operation between the two police services operating on the island as a whole. Indeed, the chief constable of the Police Service of Northern Ireland saw the potential loss of the European arrest warrant as his number one concern. I draw attention here also to his interview in the Guardian today.

The chief constable was surely right that extradition arrangements between the UK and the remaining EU member states are already beginning to unravel. Only last week, as we returned from Londonderry, the Supreme Court of Ireland refused for the first time a European arrest warrant issued by the UK on the grounds that the individual concerned would not complete his custodial sentence until the UK had left the European Union. I should add that the Irish court has sought a Court of Justice opinion on the matter, which will reply shortly under its expedited procedures. None the less, coming on top of the Police Service of Northern Ireland’s evidence to the Select Committee last week, these are extremely worrying developments.

So as we await the start of negotiations on transition and after that the negotiations on a final relationship between the UK and the EU—equally elusive—I hope the Minister will spell out in his reply the Government’s plans for ensuring that the substance of the European arrest warrant remains in place during and after the transition period. The security of the people of this country and of the Irish border deserve nothing less than that. I beg to move.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Chair, EU Justice Sub-Committee 3:22 pm, 8th February 2018

My Lords, it is a great privilege to take part in this debate. I thank the noble Lord, Lord Jay, for the wonderful work he did when the chairman of the European Union Select Committee was ill. He stepped into the breach and chaired the committee wonderfully, and I thank him for all his hard work. I also thank him for opening the debate so succinctly. I have great concerns about the loss that there could be for law enforcement if we do not find an adequate way of having judicial oversight of the European arrest warrant.

I will start by reminding noble Lords of why we have it. I have practised at the Bar long enough to be able to tell your Lordships that one of the great problems with extradition to places outside Europe is how long it takes. The procedures are such that people often wait for a very long time in custody. The process often involves delay—sometimes, it is alleged, deliberately. The procedures were never very efficient or effective. The Euro warrant was created for that reason: to make collaboration across Europe more effective.

When it was first introduced I posed questions and was anxious to be sure that it would operate with due process. But I have come to see its operation as being of huge significance in answering international cross-border crime. My heart has been changed in many ways by seeing how it has worked. The underbelly of the market, as we all know, is the black market. We have seen all the things that have benefited from the creation of markets, globally and of course across Europe. We have all the business of the electronic transfer of money and all the things that ease the connections that enable markets and trade to operate well.

However, I am afraid that there is also an awful lot of trade in bad things, including arms and drugs. There has been a much greater amount of this coming before our courts than there was when I was a young woman starting at the Bar. There are a large number of cases now that are being dealt with using the Euro warrant, for example involving trafficking across Europe in human beings, including women and children for different purposes. The trafficking is not just in arms and drugs but in extraordinary things such as fissile material, human eggs and babies for adoption. All manner of things happen involving cross-border crime.

Last year, for us, it involved 200 requests and returns of people here to stand trial, and one of the cases was a very significant trafficking case. But we have also had it in the other direction, in that we are able to get rid of people who are international criminals. This is one of the things that the general public have expressed concerned about. There are people here who are criminals from other parts of the Europe, and this is an effective way of returning them to places where they can be brought to book for serious crimes. If only the general public had some sense of how important this has been, and of our collaboration with Eurojust. It is another of those issues. I have seen cases come up where someone is arrested in Germany and decisions are made very closely about whether it might be better to prosecute here or in that country, depending on whether evidential reasons mean the case might be better suited to Germany’s criminal justice system or ours. Those mutual arrangements that operate across Europe depend on reciprocity.

I would hate to think that we would have to recreate this in treaties with 27 countries, but putting it in place without having, at the apex, a place to which you can go when there is a dispute would be problematic. I received the Government’s response to the report today—it was a long time coming—which recognises that there is a challenge for the Brexiteers. What do they do about that? Everyone says, “Bring it all home”—but you cannot bring home things that depend on reciprocity. There has to be a court that is not of one or the other side in a dispute. What kind of court can it be? They are talking about all manner of arbitration systems, tribunal systems and so on, but we are dealing here with the liberty of the subject—something more pressing than trade arrangements or disputes where you fall out with your trading partner because they do not deliver the goods. This is about crime, and the consequences of crime are that people are put on trial and end up being sent to jail. So high standards come to bear in such cases, which is why you need a proper court.

I chair the European Union Justice Sub-Committee. We had before us recently the former president of the EFTA Court, who had just stepped down. I know that we have been looking at the possibility of the EFTA Court and having some docking arrangement that would mean that we could somehow make use of the facilities of the EFTA Court. But we should be clear that the EFTA Court does not deal with the Euro warrant, Eurojust or any of these criminal matters: it deals purely with trade disputes. The president made it very clear that that was absolutely not within the remit of the court. I asked him, as a very distinguished judge of many years’ experience dealing with matters across Europe—mostly trade disputes—what his view was about whether it would be possible for us to still have the benefit of being party to Eurojust and the Euro warrant without being part of the European Court of Justice. He said that in his view it was not going to be possible.

So I give a warning to those who are negotiating on our behalf that this is one of those problems where drawing a red line was absolute folly. It cannot be said strongly enough that we are not going to be able to get an agreement on this without accepting that the European Court of Justice is essentially the best arbiter for this when there are disputes, because it goes to the difficult question of states taking people’s liberty away from them. When we are dealing with high-level crime, where we want collaboration, we want to see people who are guilty of those crimes ending up in jail.

I emphasise to the House how important this issue is, and I hope that a message will be taken back. I think a prize for creative writing should go to whoever drafted this response; it contains a lot of blather but not an awful lot that is solid on what we are going to do about this problem. It is a wicked and difficult problem, and I am sorry that the Minister is going to have to reply to this because I am sure that he will not have the answer. I am telling your Lordships that the only answer is a proper court at the apex—and we already have one, and it is doing its job very well.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 3:30 pm, 8th February 2018

My Lords, it is a privilege to follow the noble Lord, Lord Jay of Ewelme, and the noble Baroness, Lady Kennedy of The Shaws, and I completely agree with everything that they have said. I will speak nonetheless. This debate is timely, as the Cabinet’s Brexit committee was scheduled to have a discussion on Brexit-related security issues. Can the Minister tell us more about that?

The Government face a conundrum on security as difficult as that which concerns the Irish border: how to have seamless operations while standing outside EU structures and measures. The Government have fully recognised the value of the European arrest warrant. Their response acknowledges that, as did the Prime Minister in her Florence speech and indeed when as Home Secretary—with a great deal of pressure from her Liberal Democrat coalition partners, notably from the police and parliamentarians in this House—she opted back in three years ago to a range of law enforcement measures. The current Home Secretary has called the European arrest warrant an,

“effective tool that is essential to the delivery of effective judgment on … murderers, rapists and paedophiles”, and stresses that it is a “priority” for the Government,

“to ensure that we remain part of the arrangement”—[Official Report, Commons, 6/3/17; col. 550.] that is, the EAW arrangement. The Director of Public Prosecutions, Alison Saunders, has pointed out that up to 150 extraditions to the UK in recent years would not have been possible without the European arrest warrant system. She added:

“It’s three times faster to use an EAW and it is four times less expensive for us to be able to do that as well”.

The protocol 36 decision three years ago on the mass opt-back-in that I have just referred to was explicitly taken in the context of an acceptance of the jurisdiction of the European Court of Justice, so it is something of a mystery why this has become such a symbolic problem for the Brexiteers—one that, unfortunately, has been taken over by the Government. There are numerous problems in departing from the European arrest warrant. Going back to a 60 year-old Council of Europe extradition convention would mean much lower processes based on diplomatic procedures and political decisions. Even that assumes that other member states would be willing to resurrect this old convention; some may have rescinded it in their national laws. It would bring back the danger of political exceptions and difficulties in extraditing terrorist suspects. The noble Baroness, Lady Kennedy, referred to the need for reciprocity. We cannot unilaterally amend the Extradition Act 2003 to designate EU countries as Part 2 countries rather than Part 1, because you cannot do things like that just on your own.

The Norway/Iceland agreement with the EU is often cited as a prototype, but that took years to negotiate and is still not in force. Sir Francis Jacobs, former advocate-general of the court, told the committee that that was less than satisfactory and may be difficult to attain. The EFTA Court has been mentioned but, notably, its jurisdiction was not extended to that agreement because it does not have a criminal-law focus or expertise. The Norway agreement refers to CJEU case law when there is a duty to keep it under review, but even that does not provide the same guarantee of consistency as supervision by the Luxembourg court. So there are question marks over any kind of bilateral extradition agreement with the EU, even assuming that the UK could negotiate one.

I do not need any reminders of the flaws in the European arrest warrant. When I was MEP for London I dealt with the case of Andrew Symeou, and there have been some huge abuses in his case. There used to be a lot of problems with EAWs for minor offences, notably from Poland, but I think there has been great progress and considerable reform. My last act as an MEP was to do a report calling for the reform of the EAW, and I am sorry the European Commission has not thought fit to follow it up. Some of the changes that we wanted, such as a test of proportionality before an EAW was issued and the ability to decline execution in the receiving country on the grounds of a breach of the Charter of Fundamental Rights, have been put into the European investigation order—I shall mention this later—so those reforms have been taken up in that future measure. The EIO itself takes some of the strain off the European arrest warrant because it can call for evidence—for instance, a witness statement, possibly by video—without extraditing the person.

The government response, which has been referred to, appears guilty of muddled thinking because it says that,

“disputes can be resolved fairly and efficiently”, but it thinks about that in very much state-to-state terms, whereas another part of the response recognises the importance of the EAW on the basis of,

“mutual recognition of judicial decisions”.

That is the core difference between the EAW and international co-operation. It seems that the Government either fail or are unwilling to recognise that the nature of co-operation within the EU in the criminal and policing field is qualitatively different from diplomatic or political co-operation, which is why you need the judicial umbrella. An EAW is not a political process.

As the noble Baroness, Lady Kennedy, mentioned, the European arrest warrant and other crime measures bring into question the liberty of the individual, where the individual needs the opportunity to enforce their rights. They cannot petition the Government to take up the matter with another member state if their rights are infringed in that context. In evidence to the Justice Sub-Committee the noble and learned Lord, Lord Thomas of Cwmgiedd, said:

“It would be perfectly possible to agree an extradition treaty with the EU, but the European arrest warrant operates in a fundamentally different way. Unlike treaties, it is premised upon judicial co-operation. It is very difficult to see how, if an instrument operates on that basis, it can do so without some body at its apex to determine the rules by which it works”.

I think we all want to hear from the Government how they are going to square that circle.

The Government also need to tell us how they are going to ensure access to EU databases that complement cross-border judicial co-operation measures such as the EAW. For instance, the Schengen information system has a database of outstanding European arrest warrants, so it is necessary to access that data. That is why the push is coming from many of us in this House for the Government not to ignore the Charter of Fundamental Rights, because it is crucial to get an adequacy decision from the European Commission.

The noble Lord, Lord Jay, mentioned the Irish case last week where the anticipated failure of the British Government to entrench the Charter of Fundamental Rights in domestic law was the reason for refusing to execute a British arrest warrant. The relevance of the charter is not just about fluffy issues of rights and justice—although some of us think those are essential—it a matter of hard security. If we do not entrench rights and liberties, including the charter, in our domestic law, we will not be able to catch criminals. We will go back to having the costa del crime. Please will the Government spell out how they expect to secure a comprehensive agreement on security, law enforcement and criminal justice co-operation without subscribing to EU structures and rights, including the procedural rights to which the noble Lord, Lord Jay, referred, which are the foundations that strengthen the whole system of mutual recognition?

The Government say that they want to avoid compromising the security and safety of people in the UK and European Union, but at the same time they want to make the ECJ a red line. This is a circle which cannot be squared. As the noble Lord, Lord Bridges, told the Government last week in our debate on Second Reading of the EU withdrawal Bill, the Government have to choose. I suggest that for a Conservative Government to choose to be soft on crime would not be a happy place for them to end up.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench 3:41 pm, 8th February 2018

My Lords, this House is no stranger to debates about the European arrest warrant. It is a great pleasure to follow the noble Baroness, Lady Ludford, because when, as the then chair of the Sub-Committee on Home Affairs, I worked with the noble Lord, Lord Bowness, on the issue of protocol 36 and the opt-out and opt-in, in which the European arrest warrant was the jewel in the crown, she gave me a lot of helpful advice from her then position on the Justice Committee of the European Parliament.

This House has been much involved. I believe it was the report produced by the Joint Committee that the noble Lord, Lord Bowness, and I chaired, endorsed by the EU Select Committee, which marshalled the evidence that showed just how crucial the European arrest warrant is to law enforcement in this country and thus to our internal security, and which gradually helped to convince an initially sceptical Home Secretary in the coalition Government, one Theresa May, that it was in the national interest to retain the European arrest warrant in operation here even if one had, as we then did, the right to opt out of it. Apparently, that remains the view of the present Government, faced with the prospect of Brexit, and that is welcome indeed. Late converts are often the most convincing of advocates.

Today’s debate on the report of the EU Select Committee on judicial oversight of the arrest warrant, should Brexit take place, has been excellently introduced by my noble friend Lord Jay. It is remarkably timely, as negotiations are about to get under way in Brussels tomorrow, as I understand it, which will require this issue to be addressed. It is also timely because judicial oversight is one of the most sensitive and knotty issues that we will have to resolve if the operation of the arrest warrant is to survive Brexit at all. It is sensitive, above all, as several noble Lords have said, because it will involve not only disputes between Governments but the rights of individuals to have recourse to a judicial procedure if they wish to contest a warrant.

Behind and underlying today’s debate, it is important to remember, as has been stated, that if we leave without a deal, the European arrest warrant will simply cease to exist on that day. There is no plan B available here, as there is, for example, for trade in goods where, as we all know, there is the fallback of World Trade Organization rules. There is nothing for extradition other than a long, agonising effort to negotiate bilateral extradition rules that would, as the evidence we took in 2013-14 showed, replace an effective and rapid system with one that was slower, more costly and less effective.

Remember the years it took us to extradite from this country the terrorist who bombed the Paris Metro. Remember the fugitives from our justice system who lived in the style to which they were accustomed in the south of Spain, and the deeply politicised procedures that occurred when any attempt had to be made to bring terrorists in Ireland to justice. My noble friend Lord Jay spoke at some length about that so I will not go into detail, but it is a very important aspect of this issue. When the Banquo’s ghost of no deal flits through this Chamber, as it will, probably quite a few times, during 2018, I hope that those who are talking about it will just remember some of these facts.

The Government’s response to this report seems reasonably satisfactory as far as it goes, but frankly it does not go terribly far. One point on which I would be grateful if the Minister would speak is the following. On the standstill arrangements that the Government are about to start negotiating, which will follow immediately after our exit and will fill about two years after we leave, they seem to assume that this will automatically preserve the arrest warrant during that period. Will the Minister say whether that view is shared by the Commission? The many years it has taken to extend the European arrest warrant to Norway and Iceland, both third countries, seems to cast some doubt on that because, after March 2019, we too will be a third country.

The criticism of the Government’s response for not going very far relates, above all, to the lack of specificity on the dispute settlement procedures that we could contemplate. There are a lot of words but not much substance, as the noble Baroness, Lady Kennedy, brought out. Why are the Government not prepared to say straightaway some of the approaches they may be prepared to contemplate? We have heard about the EFTA Court with a British judge sitting in that court. Could that be an acceptable route to follow? Perhaps the Minister can say whether there are acceptable routes, and if so, what they are. The excuse that we do not want to reveal our hand is really wearing a little thin, as the clock ticks on. In this context, I have to say that I suspect very strongly that the Government are more concerned to conceal their hand from their own supporters, nurtured for many months on a diet of the demonisation of the European Court of Justice than they are to conceal it from their negotiating partners in Brussels. That cannot continue much longer.

Complex this issue may be, but there are matters of major importance at stake. I wish the Government well in their negotiations in this area. It is in all our interests that they succeed in preserving the European arrest warrant system from damage or impairment. Only those who believe in Brexit at any cost, as an article of faith, not a matter of choice, can think otherwise. The disappearance of the European arrest warrant system will be to lose control, not to take it back.

Photo of Lord O'Neill of Clackmannan Lord O'Neill of Clackmannan Labour 3:50 pm, 8th February 2018

My Lords, the referendum campaign, when it was not concerned with economic matters, dealt with such issues as freedom from Brussels and release from the Court of Justice yoke. The leave campaigners were concerned with reclaiming our ability to make our own laws, coupled with a reduction in immigration and a greater ability to expel foreigners who broke the law.

These slogans slipped easily off the tongue of the law and order brigade. The impression was created that the EU was somehow a source of lawless anarchy on the streets of Britain. Even allowing for the fact that much of this nonsense was believed by elderly voters, and the fact that the European Court of Justice had become the highest court of appeal, there was little to justify the claptrap that surrounded this issue—to the extent that it was considered at all.

However, the misguided strategies of the remain campaign resulted in little attention being paid to the benefits of EU membership in police co-operation, smoother jurisdiction processes and, in particular, the EAW. When this committee took evidence on the warrant procedure—I am indebted to the noble Lord, Lord Jay, for his succinct presentation of our findings—it became abundantly clear that it had been a great success. It enabled speedier repatriation of the accused from one member country to another. We were able to extradite accused prisoners from the UK and secure the return of others from other member countries more quickly. Put simply, we were able to get rid of the bad guys we did not want and get the bad guys we did into court as quickly as we could. In the past this process had taken months or even years, and now we were talking in terms of days and weeks.

There had to be safeguards, and the final one was the right to appeal to the European Court of Justice. But, in the eyes of the Brexiteers, this is a kangaroo court dominated by foreigners. It was against that background that the committee took evidence which informed our report. I have sat on Select Committees in both Houses of Parliament for the best part of 25 years, and I have to say that I have never been on a committee where the weight of evidence was so overwhelmingly in favour of the European arrest warrant. I have been on committees where the arguments were finely balanced and there were possibilities for debate—but here we had an almost frighteningly monolithic response to the questions that we were asking.

What became clear was that, in the eyes of our witnesses, the EAW was a good thing, that something similar should be retained after departure from the EU, and that this was not going to be easy to achieve since the only two countries that had arrangements—namely, Iceland and Norway—had arrangements that had never been put into practice or really tested. Even then, those countries were members of the European Economic Area and part of the Schengen agreement; you might say that they were almost in the EU but not quite, and there was not the antipathy towards the EU that there could well be in a post-Brexit Britain. The fact is that the arrangements developed for Iceland and Norway took an incredibly long time and, despite the rigour of that process, have never been tested.

When we presented the report, we got a response from the Government that was, at best, Panglossian blind optimism and, at worst, convoluted obfuscation. It was quite appalling. In the rather more robust surroundings of the other end of the Palace, we probably would have had in the wretched civil servants who wrote the response to explain it to us—and, as we used to get in primary school English when I was in Scotland in the 1950s, “parse the following”. We would have had to get them to explain the convoluted nonsense. The fact is that there is quite a clear reason for this—because there is no easy answer, if there is an answer at all. We cannot have an acceptable set of legal procedures that sit easily alongside the Court of Justice but do not give the Court of Justice its due place in the eyes of the 27—or, for that matter, the eyes of the 29, because we are also talking about Iceland and Norway here.

If there is any issue on which the Brexiteers have now been shown to have no clothes whatever, it is this one—and, if they want to get dressed, they will have to move a long way and will have to reconsider their opposition to the European Court of Justice as the starting point. I look forward to hearing what the Minister has to say. Although I have great respect for him, I suspect that the text that he will have to read out today will be little better than the dreadful letter that we had in response to our evidence.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 3:56 pm, 8th February 2018

My Lords, I have prepared a speech and shall deliver it, although what of any great value it will add to the series of outstanding speeches that we have already had—and it would be invidious to choose between them—may be doubted.

In the increasingly borderless world in which we live, it is really difficult, as others have said, to overstate the critical importance of the European arrest warrant to international criminal justice. The scheme, as your Lordships know, originated in a European Council framework decision in 2002 and was transposed into UK legislation in the Extradition Act 2003, coming into force on 1 January 2004. It immediately transformed extradition arrangements between EU states, making for an altogether swifter and more streamlined process. It was immeasurably an improvement on what had gone before; essentially, the 1957 Council of Europe Convention on Extradition was criticised variously as being,

“inefficient, cumbersome, slow (which resulted in long periods of pre-trial detention for suspects), expensive, technical, political, restrictive, containing a series of loopholes and subject to less judicial oversight”.

That is the description in the EU Committee report of 2013, paper 159, to which my noble friend Lord Hannay has already referred.

As your Lordships will know, under the Lisbon treaty the Government initially opted out of some 130 measures in the field of justice and home affairs and then, in December 2014, three years ago, opted back into 35 including, notably for our purposes, the European arrest warrant. This for the first time conferred jurisdiction on the CJEU or the ECJ in regard to our operation of the scheme. This opt-in occurred during a 15-month period in which the ad hoc Select Committee on Extradition Law of this House sat. I was privileged to be a member of that committee, under the excellent chairmanship of the noble Lord, Lord Inglewood. On 10 November 2014, we published a short interim report recommending that we should indeed opt back into the scheme. In our final report on 10 March 2015, we reiterated, with emphasis, that conclusion. Of course, we had by then indeed opted back in.

In preparing the interim report, we heard oral evidence from two witnesses: the noble Baroness, Lady Ludford, who supported the opt-in, and Mr Jacob Rees-Mogg, who advocated leaving the scheme on the basis that it was an unacceptable extension of European judicial influence. That was not a view that we accepted, nor, evidently, was it a view shared by the Government, who of course then opted in.

I should perhaps note that, during the pre-Lisbon operation of the scheme, and therefore before the European court had jurisdiction over its operation here, a number of EAW cases came before our courts, both in this House and then, after we were banished in 2009, in the Supreme Court. Indeed, I was involved in a number of them, including, shortly before I retired in 2012, a Mr Assange’s appeal—although, in the event, it appears to have taken him no further than Knightsbridge. Against that background, I assert some experience at least of the scheme in practice.

I believe that, both before and after we opted in, overall the European arrest warrant has operated admirably. Of course, as the noble Baroness, Lady Ludford, said, there have been flaws and obviously there remains room for further improvement. There have, however, been certain notable legislative amendments made to the 2003 Act that have undoubtedly helped; for example, the introduction of a forum bar, the effectiveness of which can be seen this very week in the Administrative Court’s judgment in the Lauri Love case, the computer hacker with Asperger’s who is not now to be extradited to the Unites States but who will, one trusts, instead be tried here for his alleged criminal activities. That was under Part 2, not Part 1, of the 2003 Act and is not therefore an EAW case, but the point is none the less well made.

Perhaps I should note in this connection that I in fact wrote the single judgment of the Appellate Committee of this House in the earlier case of McKinnon, where we unanimously dismissed Mr McKinnon’s appeal—a judgment that was then fully upheld in Strasbourg under the European convention. Of course, at that stage there was no question arising at all as to Mr McKinnon’s health. It was argued on an unarguable case by the noble Lord, Lord Pannick; he failed. Only later was Asperger’s diagnosed and there was of course then executive discretion—which is no longer there—for the Home Secretary to bar extradition. Now, the position has improved under the legislation: there is a forum bar, and the court rather than the Executive will make the final determination on the merits of issues such as oppression.

Thus far, I have focused on the critical importance of the warrant scheme—as all your Lordships have, I think, emphasised—and the imperative need, as I see it, to maintain its operation in the post-Brexit era. Indeed, as I read the Government’s response to the report, there is really no longer any doubt or dispute about its importance and the necessity of maintaining it. Rather, the remaining question is simply about how in future its operation should be judicially overseen. I say this simply remains the question, but actually, as other noble Lords have indicated, it is really rather difficult.

The Government’s response, I think of December last, to this report, consistent with their published paper in September last, the future partnership paper Security, Law Enforcement and Criminal Justice, while asserting that they will,

“bring about an end to the direct jurisdiction of the CJEU in the UK”, recognises that some form of supranational resolution mechanism will be required, certainly after the transitional implementation standstill period, during which, as I understand it, the Government are now ready to accept that they will continue to acknowledge the CJEU’s continuing jurisdiction in this field. But what will then follow?

As I read the report, while indeed it acknowledges the need for some future international judicial process to be devised in place of the CJEU’s direct jurisdiction, it gives, as others have pointed out, no real clues as to what precisely, or indeed even imprecisely, it currently envisages will fit the bill. For all the reasons set out in this admirable report, it needs to be a court, a judicial body, as opposed to some arbitral body. It needs to be available to individuals and not merely to states. It needs to enforce the scheme, I would suggest, in full measure, and not, for example, some alternative scheme, such as that devised in the case of Iceland and Norway, whereby those states are now entitled to refuse to extradite their own nationals, which under the EAW scheme is not a permitted restriction. Above all, it has to be acceptable to the other 27 EU states.

For my part, I cannot see how any replacement for the existing role of the CJEU would be an improvement on it. As I have said on other occasions, I greatly regret that the Government have demonised that court and, essentially on ideological or doctrinal grounds, are intent on ending its jurisdiction. I cannot think of a single instance of that court’s rulings in this field which has caused the UK the least problem or, indeed, been regarded as in any way unsatisfactory. That court may on occasion be criticised for its integrationist approach and its bias towards ever-closer union, but no such tendency has the least application or relevance in this particular context, and to schemes such as the EAW, and so too, indeed, in relation to other criminal justice measures which we opted back into.

I am conscious that I am taking up a lot of your Lordships’ time, but it is perhaps worth mentioning that essentially the same point arises also with regard to a number of EU civil justice co-operative measures: the various Brussels Regulations, maintenance regulations and so forth, dealing with a host of important questions affecting our citizens and businesses, the recognition and enforcement of judicial judgments, family law disputes and so on. All these were the subject of an excellent report, and subsequent debate last December, led by the noble Baroness, Lady Kennedy of The Shaws. Frankly, the same problems of certainty, predictability and continuity were left at the end of that debate as I fear may be left at the end of today’s debate too. I would dearly love the Minister to assuage my doubts and misgivings when he comes—as I understand it, comparatively fresh to this issue—to wind up. I just hope he can.

As a postscript, the one point on which I record my disagreement with the noble Baroness, Lady Ludford, is on the European Charter of Fundamental Rights. My mind of course, as always, remains open until I have heard the last word of the argument on both sides, but my present feeling is that the Government are right to discard that. I can see that it would add nothing whatever to the issue of the European arrest warrant.

Photo of The Earl of Kinnoull The Earl of Kinnoull Crossbench 4:10 pm, 8th February 2018

My Lords, I apologise that I was not able to put my name down for the debate and am speaking in the gap; I was due to be an expert witness in a case today which has now been delayed at short notice. I declare my interests as a member of both the European Union Select Committee and of the EU Justice Sub-Committee, which is so ably chaired by the noble Baroness who spoke earlier.

I will make just a very few points. First, this is an excellent report. It is jolly hard to write a short essay; it is only 22 pages and it frames everything very well. I congratulate the noble Lord, Lord Jay, and his committee on that. Secondly, I was also on the four-day EU Select Committee trip to Ireland last week, and I sat through the eye-opening session with representatives of the Police Service of Northern Ireland. They made it very clear how important to the overall setup the European arrest warrant is. The key quote was:

“It is a critical part of our toolbox”.

I wrote that down on my papers, and it underlines the importance of achieving a solution here. It is also worth saying that, apart from that, we heard the same point made by politicians and by academics—it was not just a dry comment made by policemen.

My final point is about a comment made to me by an Austrian lawyer in January. He said, knowing what I do on the Select Committee, “I do hope something will be done about the European Union arrest warrant”. I replied, “I’m very surprised that that is the first thing you’ve had to say about Brexit”. I should say that I know this person very well. He said, “It is, because it is something which Austria uses a lot, and it’s a very important feature”. Being me, I started looking up the statistics. I have here the at-a-glance infographic issued by the European Parliament about the arrest warrant. It is very interesting: Austria was in fact the sixth-biggest issuer of arrest warrants in the period covered by the statistics, which was 2005 to 2013. But more interesting is the data on incoming receipts. The country with the largest number was Germany, and the country with the second-largest number was Britain: in that period we received 32,100 arrest warrants. Germany received more than that. The country receiving the next-highest number of incoming arrest warrants—requests to perform an arrest in your country—was France, with only 6,420.

Those statistics show how important it is for European Union countries for their own justice purposes to continue to be able to exercise things for us, just as it is vital for us to be able to do it as well. For that reason, I feel very much that we are pushing at an open door. I always love listening to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who laid out a very sensible way of trying to handle this issue, which I look forward to reading again. That seems to be where a solution could be found. I hope that the Minister will be able to give us some comfort that we are pushing at the open door.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 4:14 pm, 8th February 2018

My Lords, I join others in thanking the noble Lord, Lord Jay, for his part in this excellent report and for the thoughtful and persuasive way in which he opened this debate.

I agree with the Prime Minister when, as Home Secretary in 2014, she said, in advocating our opting back in to the European arrest warrant, that our losing the EAW would turn the UK into,

“a honeypot for all of Europe’s criminals on the run from justice”.

The noble Lord, Lord Hannay, pointed out her support for the EAW system. When Naz Shah MP put the Prime Minister’s words to Nick Hurd, the Policing Minister, during his evidence to the Home Affairs Committee on 23 January, the Minister replied:

“The European Arrest Warrant is an incredibly important tool in the box. The data is quite striking. Prior to the implementation of the European Arrest Warrant in 2004, fewer than 60 individuals a year were extradited from the UK to any country, not just the EU. Between 2004 and 2016-17, EAW has enabled the UK to surrender over 10,000 individuals accused or convicted of a criminal offence to other member states. This has included those accused or convicted of murder, child sexual offences and terrorism offences. During that period, the EAW has been used to surrender over 1,400 individuals to the UK to face justice, so it is a very important tool”.

He went on to say that,

“we want to preserve that capability as close to the existing status quo as possible”.

Those words echo those of Amber Rudd, quoted in the introduction to the EU Committee’s report. The noble Baroness, Lady Kennedy, also spoke of the effectiveness of the warrant in combating serious crime across Europe, and all speakers have recognised the importance of reciprocity.

Day after day in this House we hear Ministers answering questions on Brexit topics by saying that the Government’s aim is to maintain our relationship with the EU as closely as possible in its existing form. Those of us who believe that the whole project of leaving the EU is a disastrous mistake have every right to ask, “Then why are we leaving?”

All speakers in this debate agree that it is crucial for this country to continue to reap the benefits of the European arrest warrant system. The noble and learned Lord, Lord Brown, stressed the remarkable superiority of the warrant system over other extradition systems as it has developed to mitigate the flaws that it had. However, the report highlights the serious difficulties in our retaining the system if we do not accept the jurisdiction of the CJEU. I understand that to be the central point made by the noble Lord, Lord Jay, in opening.

Why have the Government made breaking with the CJEU such an unyielding red line if they want to achieve a deep and special partnership with the EU? I see it more as an unbending rod for the Government’s back than a defensible red line. If the Government genuinely want this partnership, they must accept that in areas of European co-operation, whether on citizens’ rights, trade standards, the environment or cross-border security co-operation, European law will continue to hold sway, and its oversight is now and will remain with the CJEU or something very close to it.

In the legal and security areas, the arguments surrounding the European arrest warrant apply equally across the field. They apply to Europol, the EU agency for law enforcement, which is critical to the fight against serious organised crime, people trafficking, cybercrime and terrorism. It is an agency to which the United Kingdom has contributed greatly, not least through its energetic British director. The UK is probably the single largest user of Europol in the EU.

The arguments apply also to data sharing under the Schengen Information System—the vast database to which EU member states have access under the judicial oversight of the CJEU. They apply to Eurojust, the EU agency that promotes co-ordination and co-operation between EU investigating and prosecuting authorities, and to which the DPP has made it clear that she attaches great importance. My noble friend Lady Ludford stressed the DPP’s complete commitment to the European arrest warrant as well. They apply to protection for citizens under the data protection directive. In civil matters they apply to resolving choice of law issues, currently achieved by the Rome regulations; to dealing with issues of jurisdiction, recognition and enforcement in civil and commercial matters covered by the Brussels I regulation; and to the recognition and enforcement of judgments in family law, covered by the Brussels II regulation. In all these areas Ministers claim to want maximum co-operation, yet they insist on rejecting CJEU jurisdiction.

The noble Lord, Lord Jay, pointed out the difficulties already arising with the European arrest warrant, particularly on the island of Ireland. The noble Earl, Lord Kinnoull, made the same point. I would point out in that respect to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that it was the likely absence of the protection of the Charter of Fundamental Rights that caused the problem with Ireland. I urge him to consider that in the context of his opposition to it.

The Government’s response to this report is typical. It explicitly recognises the need for a mechanism for dispute resolution. Although I cannot manage the eloquence of the language of the noble Lord, Lord O’Neill, on the subject of the Government’s response, I will say that their proposals are uncertain and muddled: uncertain, because all they can say is that they are committed to a constructive dialogue; muddled, because they imply that post Brexit our law can diverge from EU law in all areas, which betrays a fundamental failure to appreciate that for international co-operation to work one law must govern the behaviour of both parties and that law must be binding.

In European arrest warrant cases individuals have a direct entitlement to have their rights under EU law protected by national courts. As the noble Baroness, Lady Kennedy, and my noble friend Lady Ludford pointed out, these are cases involving individual liberty. If the system is to retain the confidence of citizens and governments, there must be judicial oversight at a supranational level, which in this context means the EU level, and it must be binding on all parties. Why should the EU 27 be expected to accept a non-binding alternative arbitration system for the oversight of arrest warrants when they already have a functioning, efficient and binding system in place?

Much is said on the other side about the affront to UK sovereignty involved in accepting the direct application of EU law and the jurisdiction of the CJEU. Yet we accept the UN charter and the jurisdiction of the international court in The Hague, and we accept the jurisdiction of the European Court of Human Rights under the European Convention of Human Rights. Why not the CJEU? If Brexit is to proceed on the basis of continuing partnership, then on all areas covered by the partnership we need to reach agreement on a system of judicial oversight that is both binding and workable.

Although I do not necessarily share this view, one can see the argument that, if we leave the EU, the fact that the CJEU will no longer have a British judge and a British advocate-general would make the court appear one-sided. Well then, will the Minister explain why the Government do not seek to secure that areas covered by new partnership issues arising between the UK and the EU will be justiciable by a parallel court? Call it what you like, but effectively it would be a division of the CJEU but with a British judge and a British advocate-general. Has such an obvious arrangement even been considered by the Government?

This whole issue has been blown out of all proportion by the soundbites of ideologues. The UK has been a successful litigant before the European court. Research for the Institute for Government published in December demonstrated that the UK has the highest success rate before the court of any EU member state. These negotiations are difficult enough without red lines that are illogical, unnecessary and indefensible. If this whole sad enterprise is going to proceed, and if the Government are serious about partnership, then in this, as in all areas, will they please stop posturing and make proposals to our partners that have some chance of being agreed and are realistic and workable?

Photo of Lord Collins of Highbury Lord Collins of Highbury Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (International Development) 4:25 pm, 8th February 2018

My Lords, I too thank the noble Lord, Lord Jay, for his excellent introduction to this debate and all noble Lords on the committee for the excellent report. This has been a great debate. It has shown a great deal of consensus across the Chamber that the European arrest warrant has brought significant benefits to the United Kingdom. Each year around 1,000 individuals are surrendered to other EU member states under the EAW. According to the report, on average the UK issues more than 200 European arrest warrants seeking the extradition of individuals to this country.

In the debate we have heard about the fundamental contradiction of the Government’s position. They have the stated priority that we remain part of the arrangement; however, in their White Paper on the UK’s exit and the new partnership with the EU, they have also confirmed that they plan to bring an end to the jurisdiction of the CJEU in the UK, with case law developed post Brexit having no formal status in the UK.

As the report lays out, a lack of oversight and adjudication by the EU supranational institutions represents a practical barrier to co-operation between the United Kingdom and the EU 27 on criminal justice, which, as we heard in the debate, is reliant on the principle of mutual recognition of judicial decisions between member states. Fundamentally, restoration of the UK’s full judicial sovereignty will make it very difficult, as my noble friend highlighted, to create a level playing field in criminal justice co-operation. In relation to areas of potential divergence, such as data protection, these complexities are exacerbated by the Government’s refusal to incorporate into domestic legislation the fundamental charter.

A no-deal Brexit will make the challenge of continued co-operation that much harder. The default outcome would be to revert to the Council of Europe Convention on Extradition 1957 as the legal basis for extradition between the UK and the remaining EU member states. The noble and learned Lord reminded us of its history and the problems that that could bring.

On the report, noble Lords have referred to the fact that the witnesses giving evidence to the committee were clear that this was not an adequate substitute for the EAW and represented a cliff edge. Even with the amendments to the Extradition Act 2003 the result would be a significantly slower extradition process which represented a political rather than judicial approach to extradition and would have rule of law as well as security implications.

As the noble Lord, Lord Hannay, rightly pointed out, in a Protocol 36 decision in 2014 the UK Government had to decide whether to accept the jurisdiction of the CJEU in return for the continued use of tools such as the EWA. Now as then, the safety of the people of the United Kingdom should be the Government’s overriding consideration. The report explores the possibility for a bespoke dispute resolution mechanism in the area of criminal justice co-operation. Evidence submitted suggested that for the enforcement of criminal judgments and the EAW this would have to be a court. Only a court can appropriately review decisions affecting the liberty of an individual, as my noble friend Lady Kennedy highlighted. A political resolution mechanism or arbitration will simply not be sufficient.

The noble Lord, Lord Jay, highlighted one possible template referred to by the committee: the EFTA court, with jurisdiction over states which are party to the EEA agreement. While EEA agreement states exist outside the scope of the jurisdiction of the CJEU, the EFTA court guarantees sufficient homogeneity between the two systems to avoid significant disputes. But as my noble friend Lady Kennedy again pointed out, the EFTA system took many years to negotiate. It has never been applied to justice or home affairs issues, only internal market concerns, and applies to two European states moving towards EU membership that also participate in the Schengen area.

The report entitled Brexit: Future UK-EU Security and Police Cooperation concluded that,

“the most promising avenue for the Government to pursue may be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the EAW’s provisions as far as possible”.

This model of harmonisation would require a duty of constant review of CJEU case law and a clear political dispute resolution mechanism. What we have heard throughout the debate is that the failure to co-operate will hamper the UK’s ability to combat crime, including organised crime, people trafficking and terrorism. The Government’s stated prioritisation of the EAW is incompatible with their plans to bring an end to the jurisdiction of the CJEU in the United Kingdom. The UK and the EU will need an agreed international body which effectively acts as a safeguard against unlawful warrant issuance. Only a court can appropriately review decisions affecting the liberty of an individual, and consequently this international body will have to be a court. It is very unlikely that the EU will agree to the jurisdiction of an independent judicial body that is distinct from the CJEU.

A no-deal Brexit will make the challenge of continued co-operation that much harder, and of course reverting to the 1957 Council of Europe convention is no answer either. Unlike the Government’s response, Labour would not only allow for continued jurisdiction of the CJEU to provide for continued co-operation with EU member states on extradition arrangements, it would work with international institutions to increase UK judicial oversight of this process. Doing so would provide the safeguards to balance effective extradition and the protection of basic rights and freedoms.

We come back to the fundamental issue here, which is the security of our people. This system works and the Government have imposed a red line that simply will not work. I know that the Minister is excellent at squaring the circle. In his response to the debate I hope that he will be able to do that, but I fear that he will fail.

Photo of Lord Young of Cookham Lord Young of Cookham Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office) 4:33 pm, 8th February 2018

My Lords, perhaps I may take the opportunity first to thank the EU Home Affairs Sub-Committee for producing its report, Brexit: Judicial Oversight of the European Arrest Warrant. I am grateful to all those who have spoken in the debate, and in particular to the noble Lord, Lord Jay, for securing it. The Government welcome the next inquiry, which he referred to in his opening remarks. The noble and learned Lord, Lord Brown, implied delicately that I am a newcomer to this subject and as such I welcome the clarity of the report, its sharp focus on the key issues, and the outline in the concluding paragraphs of a possible way forward. During the debate other noble Lords, including the noble Lord, Lord Marks, suggested their possible solutions and ways forward. However, I am a former Member of Parliament, and some of my constituents were on the receiving end of EAWs and occasionally sought my advice as to how they might possibly evade their reach, and of course as a Member of the Cabinet I sat around the table when we opted back into the EAW in 2015, so I am not wholly unfamiliar with the issues raised today.

A range of views have been expressed across the Chamber, but I am reassured by the broad consensus across the House, first, that the EAW is the most effective means available to apprehend individuals wanted by other member states and to ensure that those who have fled the UK are returned to face justice; and, secondly, that the Government should look to sustain as close a partnership as possible with our EU neighbours on security, law enforcement and criminal justice matters after we leave the EU, and that effective extradition arrangements should form part of that new relationship. A number of noble Lords, including the noble Lord, Lord Jay, quoted the Home Secretary, who said that she regarded the European arrest warrant as “an effective tool” helping us to deliver,

“effective judgment on … murderers, rapists and paedophiles”,—[Official Report, Commons, 6/3/17; col. 550.] and that it is a “priority” for the Government to ensure that we can maintain those arrangements. As the noble Lord, Lord Hannay, and others said, these are arrangements of major importance to the country.

In the future partnership paper that we published on 18 September last year, we indicate that we will look to reach an agreement with the EU that provides for practical operational co-operation, facilitates data-driven law enforcement and allows multilateral co-operation through EU agencies. We believe that such an agreement would be in the interests of the EU and its member states, as well as the UK. We are confident that our EU partners share our view on the importance of reaching an agreement that protects the safety and security of citizens and upholds justice in the UK and across the EU. The guidelines adopted by the EU 27 at the December European Council reaffirmed their readiness to,

“establish partnerships in areas unrelated to trade and economic cooperation, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.

Previous examples of the EU’s co-operation with third countries—which is what we would be post Brexit—on security, law enforcement and criminal justice have so far generally been limited to agreements covering individual measures, such as Europol or passenger name records, but our assessment is that other approaches are legally viable. The UK’s geographical proximity to its European neighbours, the volume of cross-border movements between the UK and the EU—including, for the purposes of this debate, the volume of extraditions to and from the UK, which the committee highlights in its report—as well as the high degree of alignment in the scale and nature of the threats that we face, call for a new, more ambitious model for co-operation than those that currently exist.

With this in mind, the Government see a strong case for developing a new, dynamic treaty that provides a comprehensive framework for future security, law enforcement and criminal justice co-operation between the UK and the EU. This treaty would provide a legal basis for continued co-operation between the UK and the EU in this area.

To function properly we need dispute resolution, as referred to by many noble Lords during the debate. An arrangement along the lines that we have proposed will need to be supported by a means of resolving any disputes between the UK and the EU. It would be in the interest of both sides to ensure that the rights and obligations contained in the agreement can be relied upon, that both parties have a common understanding of what the agreement means, and that disputes can be resolved fairly and efficiently. This has been to some extent at the heart of the debate.

Dispute resolution mechanisms are common in EU third-country agreements and other international agreements, including those agreed by the UK. A number of examples are set out in the future partnership paper Enforcement and Dispute Resolution, which the Government published last August. They illustrate the range of ways in which the parties to international agreements, including the EU, have obtained assurances that obligations in those agreements will be enforced, that divergence can be avoided and that disputes can be resolved.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

I apologise for interrupting the Minister, but how is that relevant to an individual disputing the execution of a European arrest warrant? How does state-to-state dispute resolution apply in the circumstances of a judicial process?

Photo of Lord Young of Cookham Lord Young of Cookham Lord in Waiting (HM Household) (Whip), Lords Spokesperson (Cabinet Office)

I will come in a moment to the distinction between how country-to-country agreements are enforced and how individuals enforce any rights they might have in the countries concerned.

One common feature of most international agreements, including all agreements between the EU and a third country, is that disputes are not resolved by giving the courts of one party direct jurisdiction over the other. Noble Lords will be aware that one of the Government’s key commitments in leaving the EU, as set out in our future partnership paper Enforcement and Dispute Resolution, is that we will bring about an end to the direct jurisdiction of the CJEU in the UK. I know that that is particularly unpalatable to the noble Lord, Lord Marks, but it is a clear statement of government policy.

Previous examples of the EU’s co-operation with third countries on security, law enforcement and criminal justice demonstrate that direct CJEU jurisdiction is not a requirement for such agreements. Even the more ambitious and strategic relationships that the EU has adopted—for example, the Schengen association agreements and the European Economic Area agreement—do not involve direct jurisdiction of the Court of Justice of the European Union in those third countries.

There is no precedent, and indeed no imperative driven by EU, UK or international law, which demands that enforcement or dispute resolution of future UK-EU agreements should fall under the direct jurisdiction of the CJEU, or indeed that UK courts should have direct jurisdiction over the EU. However, I agree with the noble Baroness, Lady Kennedy, and others that if you do not have the CJEU, you need some other mechanism for resolving disputes. We will therefore look to engage constructively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU in underpinning the effective operation of a new partnership in this area. We do not underestimate the complexities involved in negotiating our future relationship with the EU, but we are confident that there is recognition on both sides of the importance of addressing them and reaching a robust agreement.

The noble Baroness, Lady Ludford, mentioned some of the problems with the EAW, and the noble and learned Lord, Lord Brown, touched on them. Noble Lords may recall that, in 2014, we reformed the operation of the EAW to make sure that it worked effectively and better protected UK citizens. As has been mentioned, individuals will not now be extradited where a case is not trial-ready or where it is disproportionate so to do.

The noble Lord, Lord O’Neill, put it graphically when he said that the EAW has enabled us to get rid of the bad guys we do not want and get hold of those we do. The EAW has enabled the UK to surrender more than 10,000 individuals accused or convicted of a criminal offence to other member states, including those accused or convicted of murder, child sexual offences, terrorism or, as the noble Baroness, Lady Kennedy, mentioned, human trafficking. During the same period, the EAW has been used to surrender more than 1,400 individuals back to the UK.

As the committee noted, we are a net contributor to the EAW system: for every one person arrested on a UK-issued EAW, the UK arrests eight on EAWs issued by other member states, so in the balance of trade of those under arrest, we are net exporters. For all these reasons, agreeing effective extradition arrangements will be an important part of negotiations and of mutual interest to both the UK and member states.

Perhaps I may touch for a moment on transitional arrangements, which the committee also raised in its report and were referred to in our debate. The Prime Minister was clear in her Florence speech that an implementation period should be based on the existing structure of EU rules and regulations, and that the UK would take part in existing security measures during such a period. The Prime Minister was also clear that we may start off with the CJEU still governing the rules we are part of for that period. We therefore do not anticipate the cliff edge that the committee was keen we should avoid and which was touched on during our debate. We hope that we do not see the ghost of Banquo, though I am sure he would be familiar with the panelled rooms of this stone building. That commitment was confirmed by the Minister for Immigration, Nick Hurd, when he gave evidence to the Home Affairs Select Committee on 23 January. As I said a moment ago, it is in the interest both of the UK and the EU to agree the precise terms of the implementation period as quickly as possible, and we are confident that we will come to an agreement on this in March.

On the case of O’Connor, I am somewhat limited in what I can say as this is a live case. We are monitoring what is going on and we cannot speculate on the outcome. My understanding is that the Irish Supreme Court has yet to formally refer the matter to the CJEU or, indeed, to determine what the question should be. We will continue to work with our counterparts in the EU to ensure that those who have fled justice in the UK return to face it.

A number of noble Lords mentioned the time it took to negotiate the extradition agreement between Norway and Iceland and the EU. With respect, we are starting from a slightly different position, in that they started from a position of total divergence whereas we are starting, in this case, from a position of total alignment. The starting point for negotiations will be different from that of either of those countries: we start, as I said, from a position of total alignment since we operate the same EU tool, the EAW, and that was not the case for Norway or Iceland.

The noble Baroness, Lady Kennedy, asked whether we would be able to get an agreement on this without accepting the CJEU as ultimate arbiter. I have made it clear that we do not think that that is acceptable and I outlined other scenarios where that was not the case. Indeed, the EU has extradition agreements with a range of third countries, as noted in the committee’s report. None of those involves the CJEU having jurisdiction in those third countries, nor is there another common court between the parties, although I note that in our debate there was a very strong view that there should be some judicial oversight over how disputes are resolved.

Where agreements between the UK and EU give rise to rights or obligations for individuals—the case raised by the noble Baroness, Lady Ludford—those rights or obligations will be enforced by the courts in the UK, and ultimately by the UK Supreme Court. Individuals operating within the EU should similarly be provided with means to enforce their rights or obligations through the courts of the remaining 27 member states, with interpretation by the CJEU where that is appropriate. On facts and figures, table 1 in paragraph 10 has some key statistics, but if the noble Earl, Lord Kinnoull, wants more granularity I would be more than happy to provide that for him.

There was a comment about the Charter of Fundamental Rights. The noble Baroness, Lady Ludford, will have heard what my noble friend Lord Callanan said in winding up the debate on the withdrawal Bill last week. Our intention has always been that, in itself, not incorporating the charter into UK law should not affect the substantive rights that individuals already have, because the charter was never the source of those rights.

I should emphasise that the Government are committed to maintaining and strengthening the co-operation that keeps 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 other EU countries and I am reassured to hear that there is a shared understanding of the importance of effective, ongoing co-operation. For our part, we have made clear that the UK’s responsibilities, as a good neighbour, for the security of European citizens as well as our own, will remain on leaving the EU. We will be looking for a future partnership that ensures that those responsibilities can be met.

We recognise the challenges around negotiating a new relationship, including those around designing a new mechanism for resolving disputes between the UK and the EU. The Government are grateful to the committee for its report and its observations about the complexities involved in negotiating new arrangements. We are committed to addressing them and ensuring that we can continue to uphold justice in the UK and across the EU. I reiterate my thanks to the noble Lord, Lord Jay, and to all noble Lords who have taken part in this afternoon’s debate.

Photo of Lord Jay of Ewelme Lord Jay of Ewelme Chair, EU Home Affairs Sub-Committee 4:50 pm, 8th February 2018

My Lords, I, too, thank all noble Lords who have taken part in this afternoon’s debate. It has been a debate of real substance. I thank the Minister for rising to the challenge posed by the noble Lord, Lord O’Neill, and including topics of real substance in his reply. As the noble Baroness, Lady Kennedy, my noble friend Lord Hannay and other noble Lords said, this is an intractable problem, and I do not feel that we have reached a real solution to the problem of judicial oversight in this debate. I have no doubt that we will come back to it before 29 March 2019.

Motion agreed.

House adjourned at 4.50 pm.