Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Baroness Ludford Excerpts

Monday 17th November 2014 Lords Chamber

The arrest warrant is working extremely well. You do not, if you are sensible in life, throw over and destroy a mechanism—particularly if it is a complicated mechanism that depends on the co-operation of 28 other nation states—unless there are very sound reasons for doing so in substance. Not a single sound reason for doing so in substance has come to my attention either in this debate or in the debates in the House of Commons which I tried to follow last week. This House should support the Government on the substance of these issues. I pay tribute to the way that they handled their dealings with the European Union on this matter in substance, while berating them over, and regretting very profoundly, the way that they think they can treat Parliament. They must not be allowed to get away with that; they must remember that. They must never try on again the tactics that they used either in the House of Commons last week or those that they have used—as the noble Lord, Lord Boswell, set out—in dealing with this matter in the House of Lords. It is quite a disgraceful episode and it should be carved on the record of this Government that they actually descended—quite unnecessarily, quite absurdly—to such very disgraceful behaviour.

[Baroness Ludford (LD)]

My Lords, on behalf of these Benches, I strongly welcome the prospect of finalising renewed participation in the 35 measures, even if the procedures—as outlined by the noble Lord, Lord Boswell—have been far from ideal. It is, as other noble Lords have said, axiomatic that cross-border co-operation against major crime and terrorism is essential for the security of the UK and the safety of its people. Just this evening, the London Evening Standard headline is: “Met war on 200 cyber crime gangs”. You do not really need to read the rest to know that their operations are extending across the United States, Russia and the rest of Europe.

I am proud of the Liberal Democrats’ role in this coalition. As my noble friend Lord Stoneham said in the debate on 17 July:

“I hate to think what would have happened if the disciplines and the support of the coalition had not been in place”.—[Official Report, 17/7/14; col. 753.]

However, perhaps we would not have chosen to start from here. I say to the noble Lord, Lord Davies of Stamford, that the opportunity of the opt-out—in the words of the EU Committee, its origins are obscure—was essentially drawn up on the back of an envelope by the previous Prime Minister, Gordon Brown, on the margins of the intergovernmental conference in Lisbon seven years ago, presumably to avoid a referendum. The former Home Secretary Charles Clarke has said that he regretted that it had been negotiated, so perhaps there has to be some humility on the Benches opposite about why we are in what the noble Lord, Lord Hannay, has referred to as,

“the infernal machinery of Protocol 36”.—[Official Report, 17/7/14; col. 761.]

There were strong arguments that measures that were old or defunct could have been allowed to wither on the vine. The idea that the European Commission was going to concern itself with pursuing infringement proceedings for some ancient joint action from the 1990s was fanciful; it will have an enormous amount on its hands just making sure that 28 member states properly implement the most important measures, including the European arrest warrant.

It is unfortunate that this decision is preceding rather than following the results of the balance of competences review on policing and criminal justice, because that review could have enlightened the decision-making on this exercise, but I agree with the noble Lord, Lord Davies of Stamford, that it needs to be a pragmatic, not an ideological, exercise.

UK leadership on justice and security is very strong and these Benches believe that it must continue. We have had two British directors-general in the European Commission dealing with these matters; as has already been noted by the noble Lord, Lord Bates, the current director of Europol, Rob Wainwright, is British; we have had two British presidents of Eurojust; the present Lord Chief Justice, the noble and learned Lord, Lord Thomas, was—as Sir John Thomas—chairman of the European Networks of Councils for the Judiciary in 2008 to 2010; we had the European Police College here, although it is no longer; and we have had judges and advocates-general in the Court of Justice.

Given that we are so strong, with a strong reputation for the credibility of our police—notwithstanding a few recent problems—and given the depth of reputation of our judges and our upholding of the rule of law, we should lead in this area of justice and policing. Our not doing so is having an unfortunate effect on negotiations in Brussels on the measures that we are trying to opt in to. That is perhaps not so much the case in the Council of Ministers but, from my recent experience up till last May in the European Parliament, I know that it is difficult to persuade MEPs to make changes, as they should, to accommodate the common law if they are not sure whether the UK will participate. Some of those changes are ones that they are prepared to make, but they would not be necessary if we were not around. It is necessary for the European Commission to do some spring-cleaning of the list of old measures and it is a pity that it did not do that before this exercise had to be undertaken.

I understand the frustrations expressed by the noble Lord, Lord Boswell, and strongly thank him and his colleagues, the chairmen and the previous chairmen of Sub-Committees E and F.

I can count only 10 measures in the Explanatory Note to the regulations, but 11 are cited in the Explanatory Memorandum. I think that the missing one is the in absentia measure—which seems ironically apt—because I suppose that it is incorporated in other legal measures.

It is not appropriate to fear the jurisdiction of the European Court of Justice. There is no evidence of judicial activism in this area. In fact, the court has to be very cautious, including in the case of Radu, about a European arrest warrant, when there were great hopes two years ago that the court would rule on a proportionality test at EU level. Unfortunately it shied away and decided on a technical basis. However, that in itself demonstrates that the court is being quite cautious on criminal justice. The Government have said on record that they have no objection in principle to the jurisdiction of the CJEU and, of course, we welcome it in other areas such as the single market.

I agree with the noble Lord, Lord Lamont, that the preference should be to reform the EAW at EU level. I was grateful to be able to give evidence recently to the Extradition Law Committee, led by my noble friend Lord Inglewood, which very speedily got out its extremely useful interim report. I agree with the reforms that the Government made in August, although we have not fully seen how they are going to pan out. It would be preferable to have a proportionality-checking issuing state, and to have a broader human rights refusal test than the one we have incorporated in UK law, which the courts have regarded as a high threshold.

There are other flanking measures we need to do the procedural rights. The European investigation order, when it comes into place, will take some of the weight off the European arrest warrant, which should be a last not a first resort—certainly when things such as video interviewing or temporary transfers can be done instead of reaching for it. We need much more to be done at EU level to stop unnecessary pre-trial detention.

It would have been absurd if the Government had not implemented the European supervision order, which, although not sufficient to ensure that people will stay in their home country on bail, is a necessary step to ensure that that would happen. I am fully conscious both as of a patron of Fair Trials International—which I should perhaps declare in this debate—and as a then constituency MEP for Andrew Symeou, just how appalling an experience he and his whole family had a few years ago. He conducted himself with huge dignity through that.

I finish by saying that other noble Lords have mentioned some omissions that would be nice to see, perhaps principally in the European probation order. I hope the Government will be able to give that real consideration in the future, and consider opting in. The UK Government were one of the instigators of the Prüm decisions on the exchange of biometric information, DNA and fingerprints, because we are putting much more into the pool than we are getting back. Therefore, that would be a good one to pursue. Regarding the framework decision on incitement to racial hatred, we lead in Europe on these measures. It is sad that we are not opting into that. There are also one or two others that I have not got time to mention.

There are also some current measures, not part of the mass opt-out but part of the case-by-case decision on whether to opt in, that I hope the Government consider further. One is the internal security fund which, in its previous incarnations, has given considerable funding to UK police and NGOs for investigative operations, for instance Operation Golf, a Metropolitan Police investigation into a child trafficking ring, and other projects. The second is the directive on the right to a lawyer. The Government have rightly pointed out, in their opt in to the framework decision on child pornography, that Articles 72 and 276 in the EU treaty put the maintenance of law and order and safeguarding national security outside EU law and court jurisdiction. That means, for instance, that if there was real suspected criminality, you could intervene on legal, professional privilege, but not in an illegitimate way. I ask the Government to have another serious look at that measure, because we set the gold standard in Europe on access to lawyers—this is not about legal aid but on the right to have a lawyer present.

These are my last words. We do not want to become, in the words of Professor Steve Peers,

“a kind of Brazil of Europe, without the nicer weather. A place that you”—

that is, criminals—

“would flee to or move assets to”.

Britain should not become a safe haven for criminals, and I strongly welcome opting in to the 35 measures.