Brexit: UK-EU Security (EUC Report)

Baroness Ludford Excerpts

Tuesday 7th February 2017 Lords Chamber

[Baroness Ludford (LD)]

My Lords, my noble friend Lord Maclennan reminded us, as does the report, that the Prime Minister, when Home Secretary, said that it was vital that we stayed in the 35 policing and justice measures. The noble Lord, Lord Kirkhope, with whom I worked for 15 years in the European Parliament, strongly backed this up. He and I did not always agree during those 15 years but I am glad to say that we do now. The report stresses that the measures we are talking about are part of a complex and interconnected network of agreements and arrangements that are difficult to compartmentalise, and of course they have been through a filter, as the noble Lord, Lord Hannay, reminded us. Just two years ago these were boiled down from 130 measures to 35 that the Government regarded as vital. How can they be reduced any further?

However excellent our police are, anything short of full participation is going to be less effective, more cumbersome and more long-winded and will therefore hamper our police and prosecutors in apprehending criminals and terrorists, as the noble Lord, Lord Condon, reminded us. Indeed, we could, in the words of the noble Lord, Lord Hannay, fall off a cliff edge in this area, which would be unacceptable. Of course, we were blessed with not one but two former Met commissioners in the debate. The noble Lord, Lord Stevens of Kirkwhelpington, has just stressed that the UK has been a key player in EU co-operation. The noble Lord, Lord Soley, listed almost all the Brits in top positions. We have also had several—two at least—presidents of Eurojust.

Other noble Lords have picked out adjectives in the report in order to stress the key importance of participating in all these measures. I will not repeat them. Europol is a “critical priority”. Of course, it is only as a full member of Europol that we get the full rights of direct access to intelligence and information, and the ability to share those. On Eurojust, the Crown Prosecution Service said that,

“they were heavy users of Eurojust, listing it among their top priorities for any forthcoming negotiation”,

and that bilateral arrangements such as liaison prosecutors cannot,

“do what Eurojust does, which is to facilitate the multi-national co-ordination that is so important”.

The European arrest warrant is dear to my heart. My last work in the European Parliament was to write a report on the reforms that the European arrest warrant needed. This has not been pursued by the European Commission, to my regret. It could be improved but we need to work with what exists. The noble and learned Lord, Lord Brown of Eaton-under-Heywood—we were also blessed with a former Supreme Court Justice—said that it was impossible to overstate the importance of the European arrest warrant to securing justice. The report says that it is,

“a critical component of the UK’s law enforcement capabilities”.

The report also says that it would be,

“an abrupt shock to UK policing … posing a risk to the safety of the public”,

if we were not involved in the data-sharing arrangements. The National Crime Agency was,

“emphatic about the operational significance of access to SIS II”.

It said that being in SIS was one of its “top three priorities” and,

“an absolute game-changer for the UK”.

One could go on.

The case is so powerful and has been made so strongly tonight that we must stay in these measures. What is stopping us? Essentially, the Government are putting their objections to the European Court of Justice above national security. One thing that we will need to comply with are the data-protection arrangements, as enforced by the European Court of Justice. The report says that this is going to be,

“a necessary pre-condition for exchanging data for law enforcement purposes”.

The outgoing Independent Reviewer of Terrorism Legislation, David Anderson, said:

“It should not be assumed that Brexit will relieve the UK from the need for compliance with standards of privacy and data protection set out in EU legislation”,


or by the European Court of Justice.

We must also expect greater scrutiny of our surveillance practices, which perhaps we have not had to the same extent as has the United States while we have been a member of the EU. I think we can expect the content of the Investigatory Powers Act to come under close scrutiny when we are seeking an arrangement with the EU without being a member, particularly if we are trying to avoid oversight by the European Court of Justice. The Government claim that security is a top priority but they simply cannot deliver the same level of functionality if we are outside the EU framework because they are not in fact making security a top priority; they are making the political red line that suits the Conservative Party—rejection of the ECJ—the top priority. There was an astonishing response which the Secretary of State for Exiting the EU, David Davis, gave to a member of the other place. I confess I had not picked it up but I looked it up online. He said that yes, we would have to pull out of Prüm—I think he was referring to other measures—because we had to avoid the jurisdiction of the ECJ. That is a very peculiar turnaround of priorities.

The report reminds us that there is this tension between the maintenance of strong security co-operation and refusing oversight arrangements—perhaps not only those of the court but those of the European Parliament as well. We know that our police will do their best but it would be a dereliction of duty to fail to give them the support they need to work with their counterparts in other member states because of what I think the noble and learned Lord, Lord Brown, referred to as a doctrinal objection.

The Government will seek bespoke adjudication arrangements. We must hope that they will succeed however they can in keeping us close to practical EU co-operation, but there will be real problems in trying to step aside from the ECJ. The EU can act only in compliance with the European Charter of Fundamental Rights, and the court is the ultimate arbiter of that. It is impossible for the EU to sign an agreement with the UK that conflicts with either the charter or ECJ case law.

The agreement will have to be policed and enforced. If the UK acted in ways that breached the terms of our agreement, it might be open to an EU citizen to take a case to the ECJ and get the decision including the UK agreement annulled. That is what happened to the safe harbour arrangements with the US when an Austrian student, Max Schrems, went to the court because of concerns about US intelligence agencies. We need to think through what could actually happen. We will have to keep up with legal developments in the rest of the EU, a point that has been made this evening, because if we diverge from EU law a gap will open up and we will leave ourselves open to the potential of the agreement being annulled. It remains to be seen whether our EU partners will agree to set aside the ECJ in favour of a bespoke dispute resolution mechanism. But we do not seek just to stay in one measure, whether that is Europol, SIS, the EAW or whatever. We want to remain in the whole package and there is no precedent for the EU agreeing to sideline the ECJ with such a large agreement as we would seek.

I conclude that it would be truly extraordinary if the mantra of taking back control, interpreted by this Government as avoiding ECJ jurisdiction, ended up handing control over to the criminals and terrorists. When you have the experience that we have listened to this evening on the police and judicial side urging the Government to put safety first and back our police and prosecutors, it would surely be an unpatriotic neglect of national security to put political prejudice first and, in the words of the noble Lord, Lord Hannay, to demonise the court. That would involve being soft on crime, and I am sure the Government do not wish to do that.