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Amendment 33

European Union (Withdrawal Agreement) Bill - Committee (2nd Day) (Continued) – in the House of Lords at 8:45 pm on 15th January 2020.

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Lord Paddick:

Moved by Lord Paddick

33: After Clause 37, insert the following new Clause—“Implementation period negotiating objectives: security partnership (1) It is an objective of Her Majesty’s Government within the framework of the future relationship of the United Kingdom and the EU to secure agreements that achieve equivalent outcomes to—(a) continued UK participation in the European Arrest Warrant;(b) continued UK membership of Europol and Eurojust; and(c) continued direct access for UK agencies to the following EU data-sharing mechanisms—(i) the Second Generation Schengen Information System (SIS II);(ii) the European Criminal Records Information System (ECRIS); (iii) the Prüm Decisions;(iv) Passenger Name Record (PNR); and(v) the Europol Information System (EIS).(2) A Minister of the Crown must lay before each House of Parliament a progress report on each of the outcomes listed in subsection (1)(a) to (c) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statementThis new Clause would require the Government to seek a comprehensive security partnership as part of its negotiations for the future relationship with the EU.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, Amendment 33 is in my name and that of my noble friend Lady Ludford.

At Second Reading, I alluded to the amendment as a means of mandating the Government to deliver on their promise that the UK would be as safe and secure outside the EU as it has been within the EU by specifying what the Government should seek in a comprehensive security partnership with the EU.

Various EU measures and mechanisms that are currently available to us as an EU member state are valuable to UK law enforcement. At a briefing given to the APPG on policing in 2017, the National Crime Agency lead on Brexit outlined what these were, what the alternatives might be and the impact on the UK’s safety and security were they no longer available. They were the Schengen Information System II, sharing information about terrorist suspects, those wanted under the European arrest warrant, stolen vehicles and similar information; the European arrest warrant, allowing rapid extradition without political involvement; Europol, pan-European strategy development to counter serious and organised crime; ECRIS, sharing information about criminal convictions handed down by any court in the EU; Prüm, rapid electronic comparison of DNA, fingerprints and vehicle registrations held on the databases of each EU state; cross-border surveillance, allowing surveillance of UK suspects in the EU and vice versa; and joint investigation teams under Eurojust, prosecuting pan-European crime.

He concluded that there were “workarounds”, but that these would be less efficient and effective than the existing EU mechanisms. For example, if Interpol were used instead of Prüm to try to match DNA found at a UK crime scene with DNA profiles of criminals held on EU member states’ databases, it would take months—and in some cases no response would be received at all—compared with seconds up to 24 hours using Prüm. He anticipated that extradition agreements would need to be negotiated separately with each of the remaining 27 EU states and that these would require political involvement, as opposed to the European arrest warrant where the decision is made by a judge. He concluded that the UK would be less safe and less secure if, rather than relying on existing EU mechanisms, it had to work on the basis of non-EU workarounds.

It was therefore reasonable to conclude that if these EU mechanisms were no longer available to the UK when we left the EU, alternative mechanisms would need to be put in place that delivered the same outcomes as efficiently and effectively as the existing EU mechanisms. Otherwise, the Government would have failed to deliver on their promise that the UK would be as safe and secure outside the EU as it had been inside. The amendment would require a Minister of the Crown to update Parliament on progress in achieving these outcomes within four months, and regularly thereafter.

Why do we consider this so important? First, as Andrew Marr put it on Sunday to the Security Minister, the right honourable Brandon Lewis MP, the European arrest warrant and Europol, for example, rely on the European Court of Justice to resolve disputes between participants, and it is a red line for the Government that the ECJ should play no part in UK affairs after Brexit. The Security Minister replied that Europol has United States of America involvement, and clearly the US is not a member of the EU. What he was actually referring to was an agreement between Europol and the United States to share information within strict limitations—an agreement that can be terminated by either side at three months’ notice—not active involvement as an equal partner in Europol, deciding on the nature and scope of Europol’s activities, and nothing to do with the ECJ. Neither the USA nor any other third-party country has a say in Europol’s operations.

The Security Minister did not comment on the European arrest warrant, which more clearly and obviously requires the ECJ to adjudicate between participating states where a warrant is issued but another state refuses to extradite. The Security Minister did not comment on the EAW, probably because he knows that we are very unlikely to continue to be part of the European arrest warrant after Brexit. For example, Germany changed its constitution to allow the extradition of its own nationals under the European arrest warrant, but limited extradition to other EU member states. As I mentioned at Second Reading, Iceland and Norway applied to participate in a limited variation of the European arrest warrant in 2001, but that has yet to take effect, and they are both within the European Economic Area and the Schengen area.

The EU is already asking questions about the misuse of SIS II data by the UK, as my noble friend Lady Ludford just mentioned, with a group of MEPs in the European Parliament’s civil liberties committee demanding that the EU should deny the UK access to SIS II data, even as a member state. A leaked report details 29 pages of violations of the use of SIS II by the UK since 2015.

The EU is also concerned that private American companies, contracted by the UK Government, that hold data copied from SIS II, could be compelled by US legislation to hand over the data to the United States. Noble Lords may recall similar concerns about parliamentary systems run by Microsoft. In response, the European Commission says that the UK will keep access to the database during the transition phase of Brexit, but it has made no commitment beyond that.

The Government’s negotiating position may be, as a Minister said this afternoon in answer to a Private Notice Question, that the UK is a major contributor to these EU mechanisms—for example, the European criminal records information system, where 30,000 notifications had been contributed by the UK, but the UK had received only 16,000 notifications from the EU. However, in addition to the misuse of SIS II data, the PNQ was about the fact that not only had the UK failed to inform the EU of more than 75,000 criminal convictions of EU nationals in the UK going back as far as 2012, but that it had known about the problem since 2015 and had concealed the failure from other EU states.

Whether it is child abuse by the clergy or misconduct by police officers, when attempts are made to cover it up, it compounds the original failure when that eventually and inevitably comes to light. It is one thing for the EU to overlook the mistakes of a member state to keep it onside; it is quite another to persuade the EU 27 to trust a third-party country with its data when that third-party country not only flouted the rules but tried to conceal its mistakes when it was a member state.

We will be less safe and less secure unless any alternatives to existing EU mechanisms in the area of law enforcement are as efficient and as effective as those mechanisms. It is vital that Parliament is kept abreast of developments in this vitally important area of the negotiations. I beg to move.

Photo of Lord Warner Lord Warner Labour 9:00 pm, 15th January 2020

My Lords, I had not intended to speak on this amendment but, on further reflection, I thought that I should, as someone who has worked in the Home Office and seen how important our easy access to these European systems is for the public’s safety. It is worth us reminding ourselves that a primary purpose of any Government, of whatever political persuasion, is to keep the citizens of its country safe. Clearly there will be challenges for our security services, the police and our criminal justice system if we come out of these systems and do not have comparable or equivalent access to them and their information.

The problem is even more serious than the noble Lord, Lord Paddick, outlined in his extremely comprehensive and well-argued speech. The Government recognise that our criminal justice system faces a lot of challenges and has considerable inadequacies; they want an independent review of it. The Government’s acknowledgement of the system’s weaknesses in keeping our citizens safe makes it even more important that they should be busting a gut—if I may put it that way—to ensure that the UK keeps the kind of access to those systems that it has now, despite the criticisms currently made of how we have used them. It follows that any inability to have that access, or equivalent access, will weaken the Government’s capacity to keep their citizens safe. That will not be a good story to tell the electorate at any future election.

We must treat this area rather differently from how we treat some of the others in the Bill. It is up there as one of the top issues for the Government to tackle in the next six to nine months. The noble Lord, Lord Paddick, and his colleagues deserve much credit for bringing this matter forward now, and I hope that if he is not satisfied he will push this matter to a Division next week. I entirely support Amendment 33.

Photo of Lord Tunnicliffe Lord Tunnicliffe Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Defence), Shadow Spokesperson (Treasury), Shadow Minister (Transport)

My Lords, I am grateful to the noble Lord, Lord Paddick, for moving Amendment 33, which has provided an opportunity to discuss an aspect of the future relationship that rarely receives the attention it deserves. As my party’s Treasury spokesman in this House, I recognise that our future trading relationship with the EU is of vital importance. However, it is not the only future relationship up for negotiation; nor is it the relationship that will keep British citizens, and our streets, safe.

I agree with the noble Lord, Lord Warner, that this is a vital area, in which we must do well, and which we must all understand. The political declaration includes a commitment to agree a

“broad, comprehensive and balanced security partnership.”

However, we should remind ourselves that although it is referenced in the withdrawal agreement, that declaration is non-binding. As well as lacking legal force, it is short on detail—largely, we understand, at the Government’s request.

Although Mrs May was misguided to threaten the withdrawal of security co-operation if the EU refused to grant us favourable trading terms, her Administration did at least provide an indication of what a future security partnership might look like. We have not had the same indication of what a Johnson-led Government wish to negotiate—and it seems that the Bill, which strips out the original requirement for proper engagement with, and scrutiny by, Parliament, means that we are unlikely to find out any time soon. If we do not know, it is highly doubtful that our police forces or security and intelligence services can be any more confident that the Government will preserve UK participation in the EU agencies and data-sharing protocols that are so important in their day-to-day work.

In the Commons, my Labour colleague Nick Thomas-Symonds outlined the risks that we face from any loss of access to EU databases, such as the Schengen Information System, meaning that

“information that today can be retrieved almost instantaneously could take days or weeks to access.”—[Official Report, Commons, 8/1/20; col. 509.]

Modern crime, whether cyber or terrorist attacks, requires quick decisive responses. As we have seen time and again in recent months, organised crime increasingly takes place across borders, taking advantage of any vulnerabilities that exist. Those vulnerabilities are best identified and addressed by working alongside our neighbours.

To lessen our degree of co-operation with our EU neighbours would be reckless. But, given the Government’s determination to conclude both our economic and our security relationships with the EU in just 11 months, it feels almost inevitable that there will be a diminution of the benefits that this country and its security agencies currently enjoy. I hope the Minister will be able to provide at least some of the detail so sorely lacking to date. I repeat my support for the principle underlying the amendment. If the Minister’s response is lacking, we may return to this issue at a later stage.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development)

I thank noble Lords for their comments. I support them in drawing my and the Government’s attention to the various elements of co-operation that are so crucial in keeping our citizens safe.

It has never been in doubt that it is in everyone’s interest to maintain that strong relationship with the EU in this area. The political declaration provides the framework for the strong relationship, including co-operation on the specific capabilities that the noble Lord, Lord Paddick, has set out in his amendment. However, the precise details that noble Lords seek will be a matter for the next phase of negotiations that will be carried out, I hope with flexibility, in this and other areas. A statutory requirement to negotiate—a matter discussed quite vocally in this Chamber today—is neither necessary nor appropriate.

On the role of Parliament, I refer noble Lords to the strong commitment given by the Prime Minister that Parliament will be kept fully informed of the progress of the negotiations and will have the opportunity to scrutinise any legislation required to enact the future relationship. Therefore, a reporting requirement is not needed.

The noble Lord, Lord Paddick, made a point about Norway and Iceland and their extradition agreement with the EU. Apparently, it is now in force as of 1 November last year.

I am sorry that I cannot fill in any detail but no detail is yet forthcoming. However, I hope the noble Lord will feel happy to withdraw his amendment.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I thank the noble Lord, Lord Warner, for his support and his perspective, from his experience in the Home Office, on how important this issue is. He made an important point about the Government acknowledging the weakness already of the UK criminal justice system without losing these EU mechanisms. I am also grateful for the support of the noble Lord, Lord Tunnicliffe.

It is all very well for the Minister to keep putting matters off by saying, “This is going to be negotiated and I can’t say what the details of the negotiations will be.” Time is running out. That excuse will not be available in less than 12 months’ time and we are concerned that our law enforcement agencies will be handicapped as a consequence of losing some, if not all, of these EU mechanisms, as the National Crime Agency lead for Brexit told us in a briefing a few years ago.

I am grateful for the correction on the modified European arrest warrant arrangements with Norway and Iceland, which apparently came into effect on 1 November last year. That means that they took 18 years to come into effect. If that is the kind of timescale we are looking at to get a similar agreement between us, as a third-party country, and the EU, we are in serious trouble. However, at this stage I beg leave to withdraw my amendment.

Amendment 33 withdrawn.