Amendment to the Motion

Part of Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 - Motion to Approve – in the House of Lords at 5:00 pm on 18th March 2019.

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Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development) 5:00 pm, 18th March 2019

I thank noble Lords for their points, many of which were made the other day in Committee. It is important to be clear from the outset that the regulations play no part in bringing about the UK’s withdrawal from the EU, about which many comments were made. I just want to clear that up. Obviously, the consequences flowing from that include ceasing our ability to co-operate with EU member states through this suite of tools and measures.

As I said the other day, the instrument’s purpose is to make amendments to the UK’s domestic statute book, including retaining EU legislation to reflect the new situation. The changes we are making in the instrument are ones that we cannot and should not avoid in the event of a no-deal exit. The regulations do not contain significant policy choices. For that reason, as I have already said, we do not accept that the changes introduced by the instrument should be of concern to this House.

The noble Lord, Lord Paddick, suggests in his amendment that,

Her Majesty’s Government have provided insufficient information in relation to the statutory instrument’s policy objectives and intended implementation”.

That point was made by the Secondary Legislation Scrutiny Committee, at whose request the Government produced a second, revised Explanatory Memorandum in addition to both the original one and the impact assessment published alongside the instrument.

The noble Lord, Lord Kennedy, has been consistent on the committee’s comments; he made the same point today as he did the other day. I took it on board the other day and I do so again today. As we made clear in writing to the committee, the original, longer Explanatory Memorandum was provided in good faith to provide the committee and other users of it with a thorough explanation of each provision in the instrument. We anticipated that the level of detail provided would be helpful to anyone with an interest in a specific part of the instrument. However, we took on board the committee’s view that we had not struck the right balance and that the Explanatory Memorandum was too long, and therefore provided the shorter one. The committee confirmed in its report that it considers the revised Explanatory Memorandum to be “more accessible” and “more user-friendly”.

All these documents, both Explanatory Memorandums and the impact assessment, attempt to isolate and describe the practical effect of the regulations themselves—what difference it makes if we do or do not legislate as proposed in these regulations—rather than the wider impact of EU arrangements in this area falling away as a consequence of a no-deal exit. But in publications, debates and Select Committee hearings we have provided and continue to provide information to Parliament about those wider impacts. Overall, the making of this instrument will provide legal and operational certainty for the public sector, including law enforcement and criminal justice partners across the UK, such as the NCA and our police and prosecution services.

I will address policy areas. I reiterate that the regulations cover three subject areas: security, law enforcement and judicial co-operation in criminal matters currently underpinned by EU legislation; security-related EU regulatory systems for which the Home Office is responsible; and domestic legislation affecting the police and affecting investigatory powers made deficient by EU exit.

On security, law enforcement and judicial co-operation in criminal matters, the noble Lord, Lord Paddick, pointed out that the regulations address deficiencies in connection with EU measures with a justice and home affairs legal base. 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 with each other at an operational level. For example, the Schengen Information System, which the noble Lords, Lord Kennedy and Lord Paddick, referred to, circulates the European arrest warrant alerts. The regulatory regimes, while not having a JHA legal base, have a similar underlying purpose: to prevent, detect and prosecute criminal activity and to maintain security. Given that they are linked policy areas and that the changes being made are very similar across most parts of the instrument, we considered that combining them in a single instrument would assist scrutiny by providing as complete a picture as possible in one place. I accept the points made today by the noble Lord, Lord Paddick, and the other day and today by the noble Lord, Lord Kennedy.

The noble Lord, Lord Paddick, then went on to talk about contingency planning. Our contingency arrangements in this area are largely outside the scope of the specific changes introduced by these regulations. However, they are clearly and properly a matter of great interest to Members of this House. They have undergone detailed scrutiny by the EU Home Affairs Sub-Committee of the European Union Select Committee in this House and the Home Affairs Select Committee in the other place. As the Government have made clear in both Houses, the continued safety and security of both UK and EU citizens remains our top priority. That is why we are preparing to move our co-operation with EU member states in a no-deal scenario from EU channels to alternative, non-EU mechanisms. Broadly speaking, this would mean more use of Interpol, the replacement for Europol—the noble Lord, Lord Kennedy, asked about this—Council of Europe conventions and other forms of co-operation with European partners, such as bilateral channels. Our contingency plans are largely tried and tested mechanisms that we already use for co-operating with many non-EU countries. However, as we have made clear, they are not like-for-like replacements for EU tools and would result in a reduction of mutual capability in both the UK and the EU. For the most part, the legal framework for these contingency arrangements is already in place: the non-EU mechanisms we are moving to already exist and we already use them with other countries.

One thing that noble Lords brought up on contingency was extradition, which was brought up the other day. The regulations support implementation of the no-deal contingency in this area. They will ensure that in the event of a no-deal exit, we have the correct domestic legal underpinning to operate the no-deal contingency arrangements for extradition—the 1957 Council of Europe Convention on Extradition—with EU member states. To be clear, the amendments under the Extradition Act are not purely discretionary. Once we leave the EU and cease to be bound by the EAW regime, our rights and obligations towards EU member states under the 1957 convention will revive. Under international law, we will be under an obligation to be able to fulfil them and to equip ourselves to do so.

As I said the other day to the noble Baroness, Lady Hamwee, the convention is already in place and in use by the UK with other countries. The small difference is that these regulations will categorise EU member states for the purposes of the Extradition Act 2003 so that we can administer requests from EU member states under Part 2 of that Act rather than Part 1 as at present.

The noble Lord, Paddick, asked about own nationals escaping justice. Countries that refuse to extradite their own nationals generally have wider ranging extra-territorial jurisdiction to try their nationals for offences committed overseas. The European Convention on Extradition specifically provides a duty for contracting parties to submit the case to their authorities to consider prosecution if they refuse to extradite someone due to their nationality.

The point was made about member states being able to operate the European convention. All EU member states operate the Council of Europe Convention on Extradition with Council of Europe countries that are not EU member states. No member state that requires legislation to apply the convention has revoked or repealed the legislation. Some countries may need to make minor legislative changes—for example, to designate the UK as a Council of Europe country—just as we are doing to reverse these regulations. Other EU member states will revert to the European convention automatically because of the way their domestic law interacts with international law. I will not speak on behalf of other member states as to their systems, but we anticipate operating the EU Convention on Extradition with EU member states.

The noble Baroness, Lady Ludford, asked how the convention operates with countries such as Norway. We currently operate it with Norway and Switzerland, and we routinely turn round extradition cases in a matter of months—although I appreciate that, as we talked about the other day, it takes longer than under the European arrest warrant.

The noble Baroness asked also whether we are committed to the ECHR, because she seems to see different wording in the same documents at different times. As the White Paper and the political declaration make clear, the UK is committed to membership of the ECHR and we will remain party to it after we have left the EU. I add that this country has some of the strongest human rights legislation in the world, and I remain confident that we will stay world leaders in this. That is consistent with what I said in Grand Committee. I cannot shed further light on why the wording in the political declaration has changed, but I say to the noble Baroness that it does not reflect any change in the Government’s position. That remains as set out in the White Paper.

The noble Baroness asked about data protection rules. The SI confirms that we will adhere to the rules under which we receive the data, and I think the member states will welcome that.

On the noble Lord’s point about the contingency arrangements not being as good as the European arrest warrant, he will recall that I said in the debate the other day that I accept that there will be an increase in the cost of and time taken for extradition. I have been clear about that. The cost impact is not related to our leaving the European Union but to this statutory instrument.

I think I have answered all the questions. I thank all noble Lords, particularly the noble Lord, Lord Paddick, for again bringing this matter to my attention. I beg to move.