My Lords, I start by apologising to the House that I was unable to take part in the debate in Grand Committee last week. Sad to say, I did stream the proceedings live to my sickbed, so I followed proceedings contemporaneously. The words of my amendment are not my own but those of the Secondary Legislation Scrutiny Committee’s Sub-Committee A. I intend, first, to give an example of how important the areas are that are covered by this SI; secondly, to question the reassurances given by the Minister in Grand Committee on the area of extradition; thirdly, to examine the impact of losing access to crucial EU databases on securing our borders and how that jeopardises the Government’s immigration strategy post Brexit; and finally, to highlight the muddled thinking of the Government that resulted in their putting too many important legislative changes into one SI.
The regret is about the way the Government are showing contempt for proper scrutiny of this statutory instrument by the House, by accident or design, not about the content of the instrument itself. As the Minister acknowledged in Grand Committee on
“We were not persuaded that so wide-ranging an instrument, covering policy areas that are individually of significant concern to the House, can be justified. Effective scrutiny is inhibited by the wide range of issues included”.
Just to emphasise the importance of these areas and the lack of information being provided by the Government, I will talk briefly about the European arrest warrant, in which the UK will no longer be able to participate after Brexit. The then Director of Public Prosecutions described the EAW to the House of Lords European Union Select Committee on
“three times faster and four times less expensive”,
than alternative arrangements. It had enabled the extradition of more than 12,000 individuals from the UK to the EU in nine years.
This SI, to quote the Minister again,
“will ensure that the UK has the correct legal underpinning to operate the no-deal contingency arrangement for extradition—the Council of Europe Convention on Extradition 1957—with EU member states”.—[
That contingency arrangement operates through diplomatic channels, so extradition will require political approval in the extraditing country. It does not impose the sort of strict time limits of the European arrest warrant and does not require a country to extradite its own citizens. Indeed, Germany made a change to its constitution to allow the extradition of its own citizens under the European arrest warrant. German criminals at least will know that they can commit crimes in the UK and flee to Germany, safe in the knowledge that they cannot be extradited to the UK after Brexit.
In Grand Committee the Minister was asked by my noble friend Lady Ludford specifically how many EU states need to make legislative changes, as we are doing here, to operate the 1957 convention with the UK. The Minister, perhaps unaware of the DPP’s evidence to the House of Lords committee to which I have referred, replied:
To be fair to the Minister, this did not answer the question. The former DPP said that many member states have repealed domestic legislation underpinning the convention, which could limit their ability to extradite to the UK. Perhaps the Minister could tell the House what further information she has that was not available to the DPP when she gave her evidence to the House of Lords committee.
We will also lose access to the Schengen Information System II and the European Criminal Records Information System, which currently allow the police and Border Force staff instantly to check whether the individual before them has a criminal record in any EU country, is wanted for a criminal offence or is suspected of terrorism anywhere in the EU. In March 2016 alone, 809 people were flagged on SIS II to the UK, including 192 who were wanted, 96 who were reported missing and 358 who were believed to be involved in serious organised crime. That was in just one month.
It is interesting to note that one of the main planks of the Brexit argument is that we will be able to take back control of our borders. As we will discuss later today, in practice EU citizens will be given automatic entry to the UK for three months. While the UK after Brexit will be able to exclude those who have spent more than 12 months in prison for a criminal offence, Border Force will no longer have access to the databases that tell it whether those entering the UK have spent 12 months or more in prison for a criminal offence in any EU member state.
This instrument covers many very important areas, so why have the Government taken an all-in-one approach? The Government explain:
“The changes made by the regulations are in linked policy areas and cover three subject areas … The three areas are: security, law enforcement and judicial co-operation in criminal matters currently underpinned by EU legislation”.
I note that security, law enforcement and judicial co-operation are three areas, but the Government count them as one. The Minister went on to describe the other two of the five as,
She went on to say that in regard to the first policy area, which is,
“security, law enforcement and judicial co-operation in criminal matters, the regulations address deficiencies in connection with EU measures with a justice and home affairs, or JHA, legal base”— even though home affairs and justice are covered by different Ministers of State and departments. She continued:
“Reflecting their shared underlying legal base, these measures all relate in some way to law enforcement and security in their subject matter, and in many cases interact at an operational level”.
If we include all measures that,
“relate in some way to law enforcement and security”,
we would be ruling even more policy areas into this SI. The Minister went on:
“For example, as the noble Lord, Lord Kennedy, mentioned, SIS II circulates European arrest warrant alerts. The regulatory regimes, while not having a JHA legal base, have a similar underlying purpose”.
Having said that these matters are grouped together because they have a JHA legal base, the example the Minister then chooses to illustrate the rationale for the Government’s approach does not have a JHA legal base.
I will not go on. Suffice it to say that when the Minister said that,
“we considered that combining them in a single instrument would assist scrutiny”,—[