Extradition (Provisional Arrest) Bill [HL]
Baroness Ludford ExcerptsTuesday 4th February 2020
(4 years, 2 months ago)
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Baroness Ludford (LD)
So I have not already been speaking for 13 minutes.
The justification for the Bill rests on the claim that there is a gap in law enforcement capability which requires primary legislation to create the power for UK police to arrest immediately if an individual is wanted by a trusted partner. We were told in a briefing session yesterday that there are possibly 20 to 30 persons at any one time from across the world in a police “wanted pot”, but that does not equate to the number of cases where police actually come into contact with someone—perhaps through a stop due to a traffic offence—discover that the person in front of them is wanted for a serious offence and fear that they may abscond before a judge’s warrant can be obtained unless arrested on the spot.
The impact assessment states that the policy is expected to result in six individuals entering the criminal justice system more quickly than would otherwise be the case. As the assessment period is 10 years, this is less than one person a year. In her speech, the Minister gave one example from 2016. It is important to get clear the real necessity for the Bill. As the noble Lord, Lord Anderson, mentioned, the provisional arrest powers under Sections 73 and 74 of the Extradition Act 2003 already adequately cover urgent arrests before a full extradition request is submitted from a category 2 territory, with the CPS able to request a provisional warrant from the court which can be made urgently out of hours.
In addition, the impression conveyed that the Bill will give an instantaneous power of arrest once a warrant is issued in a designated Part 2 country is not true. The warrant would still have to go through a review and certification process at the National Crime Agency and there would be a triage process to ensure that only alerts which conform to legislative intention are certified. Perhaps the Minister can confirm that all those three steps—triage, review and certification—will have to take place. Can she also confirm that the NCA would be able to filter out cases where it has reason to believe that one of the statutory bars to extradition, such as the human rights bar, will apply, and that a victim of a politically motivated request would be able to provide the NCA with advance notification why it should not be certified? Will the NCA also ensure that any requests comply with the human rights requirements under Interpol’s constitution and with any procedural or human rights requirements under the US-UK extradition treaty?
While, if all those filter mechanisms apply, it would provide some reassurance, it would also mean that the new process was not necessarily very speedy. It would require careful scrutiny, not an instant, heat-of-the-moment decision after a person is identified entering the country. While that is good from the point of view of the care to be taken in the process, it means that the new power is unlikely to save time, as well as applying only to a handful of people, which makes the power, as justified by the Minister, largely otiose. The new power permits someone to be arrested and their liberty restricted without judicial oversight—a potential interference with Article 5 of the ECHR. The justification is pretty vague. Bypassing the judicial warrant is premised in the impact assessment only on the rather vague aspiration of
“reducing the opportunity for the subject to escape and potentially commit further crime, which may lead to an economic and social impact upon society”,
but:
“It is not possible to give a precise estimate of the impact of the legislation as it is unclear how much re-offending will be prevented”.
That is hardly convincing in justifying the potential interference with convention rights. Although the Bill covers any international request for extradition, it seems clearly anticipated that an Interpol wanted person alert or a red notice against a person would be the primary trigger. It is crucial that the Bill is not taken as a stamp of approval for such red notices, as they are not trusted enough to be in themselves a basis for an arrest. Under the Bill, the NCA will have to assess the validity of such a notice and the degree to which it is based on evidence, rather than mere assertion, without any judicial, or even prosecutorial, oversight.
Like the UK, many countries do not allow warrantless arrests based on Interpol red notices. The US does not allow them because it does not view red notices as satisfying the probable cause standard required by the US constitution to arrest someone. It is well known that Interpol red notices have been misused for political purposes by a number of its member countries, targeting political opponents, journalists, peaceful protesters, refugees and human rights defenders. The UK should continue to push Interpol to introduce safeguards against abuse. Can the Minister tell us what action the Government have taken in that respect?
It is critical that the list of specified category 2 countries in the Bill is limited to those where there really is a basis of trust—not countries such as Russia, Turkey, Venezuela or Syria. What factors will the Government take into account when proposing to add countries to those covered by new Schedule A1? It is already of concern that the US is on the list. While the ability would still exist to seek assurances that a person would not be subject to the death penalty, there was a case in July 2018 when the Government did not exercise that option, which caused deep concern.
As I have said, the necessity for the new power seems pretty slim in the case of existing trustworthy Part 2 countries but, as other noble Lords have said, in paragraph 7 of the impact assessment we get to what must surely be the real reason for this Bill, even if the Minister demurred at her briefing session yesterday. It is worth reading it out:
“In a ‘no deal’ scenario or in the event of a Future Security Partnership which does not support the retention of EU Member States in Part 1 of the Extradition Act, the current capability gap would extend to EU Member States. 15,540 requests were made under the EAW process in 2018/19. In that same year, 1,412 arrests were related to EAWs”.
That is more than 150,000 EAWs over a 10-year period, compared to the six EAWs forecast for the new procedure under the Bill. I think we can gather what scenario the Bill is really planned for. Can the Minister give us an update on the prospects for future UK-EU criminal justice co-operation, including extradition? Although there are concerns about the operation of the EAW—six years ago, my last project as an MEP was a report calling for its reform; I thank the noble Lord, Lord Anderson, for his kind remarks—it is much better than the alternatives.
Both my noble friend Lady Hamwee and the noble Lord, Lord Anderson, referred to the Commission declaration under Article 185 of the withdrawal agreement in which Germany, Austria and Slovenia may not extradite their own nationals—even during the transition period, let alone after December. This was expected but it is still discouraging. How will we get any reciprocity? If the Bill covers incoming extradition requests, what will happen to outgoing ones to EU and EEA countries?
Finally, how does yesterday’s categorical assertion of no alignment advance the prospect of the UK retaining something approaching the EAW without legal challenge if the minimum rights of defendants developed by the European Union are not respected?
Baroness Williams of Trafford
My Lords, I thank all noble Lords across the House for their very good contributions to this debate. We should not forget that without this new power a potentially dangerous individual encountered by the police, whom they establish is a fugitive, might remain at liberty on UK streets, able to offend or abscond before they can be arrested. I can confirm that in both the cases I voiced today the individuals were encountered by chance; the police did not have the power to arrest them and had to let them go.
I am sure everyone in this House will agree that we should unite across parties to give the police the power they need to protect the public, while always ensuring that the appropriate safeguards are in place. My noble friend Lord King and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, described in great clarity not only the changing face of crime and the huge demands on the police but the international aspect of crime in all its forms.
Several noble Lords have voiced concerns that this Bill is an attempt by the Government to replicate the capability of the EAW. As I hope I have explained, this is not the case. The new power is about only how wanted individuals enter the court system, not how the courts will conduct their extradition proceedings. I emphasise that, with or without access to the EAW, UK police officers are unable immediately to arrest these fugitives wanted by countries outside the EU without first going to the court for a warrant.
The noble Lord, Lord Ricketts, rightly raised the future of the EAW post transition period. The UK will approach the negotiations on these issues with practicality and pragmatism. The political declaration calls for practical operational co-operation, data-driven law enforcement and multilateral co-operation through EU agencies. The detail of this agreement will be a matter for negotiation, but it does not just apply to the EAW. It applies to several other instruments of the EU. I absolutely acknowledge his concern.
The noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson, asked whether the EAW would continue to be enforced during the transition period; they talked specifically about Germany, Slovenia and Austria. It applies during the transition period, but where a member state cannot for reasons related to the principles of their national law surrender an own national to the UK during the transition period, they will be expected—as they have been—to take over the trial or sentence of the person concerned. UK policing and courts have extensive experience of working with these countries to ensure that justice is carried out. By way of background, since 2009 five German nationals, one Austrian national and no Slovenian nationals have been extradited to the UK from those countries. We are well used to the situation. It is nothing to do with this Bill. The power of provisional arrest is for Part 2 non-EU countries.
The noble Lord, Lord Hannay, asked about replacing other aspects of the EAW. He asked whether the power will replicate other aspects of capability from the EAW such as the expedited extradition process. It will not. This new power is similar to the EAW only in so far as it provides for an immediate power of arrest. It does not change the subsequent extradition proceedings or the role of the Home Secretary in extraditions, which are dealt with under Part 2 of the Extradition Act. The person who has been arrested must be brought before a judge within 24 hours of arrest—although I take the point of the noble and learned Baroness, Lady Clark, that if it happens on a Saturday night it might be a bit more than that—and the subsequent extradition process remains as it exists now.
The noble Baroness, Lady Hamwee, and my noble friend Lord King of Bridgwater asked two equal and opposite questions: why now, and why not before now? Interpol data is now routinely uploaded to UK systems to make it available to front-line law enforcement officers. This means that the UK police might encounter an individual who, by performing a simple database check, they can see is wanted for a serious crime abroad. That was not previously the case. As I said, within the current system, the police are unable to arrest the individual immediately. There is an obvious gap, we have responded to that with the Bill, and Interpol is now available to front-line police.
A couple of noble Lords asked about reciprocity. Why is the power being extended to cover countries that will not arrest on the basis of an Interpol notice issued in the UK? Why is there not a reciprocal arrangement? We need to be clear that under the Bill we are creating powers for the UK police, not obligations to the countries concerned. The Bill will enable UK police officers to protect the public more effectively. It is about ensuring that UK police officers have the power to remove dangerous individuals from our streets before they can abscond or offend, not about bringing more wanted individuals back to the UK from other countries. Were this new power restricted to operating on a reciprocal basis, police officers could be put in a situation of encountering a dangerous individual on the street but being unable to arrest them due to the legal provisions of another country, and that does not make any sense.
The noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, asked what safeguards there are to show what steps the NCA has taken. It is a requirement of the Bill that the NCA issues a certificate setting out the category 2 territory, confirms that it is a valid request, certifies that it has reasonable grounds for believing that the offence is a serious extradition offence, and that the conduct is sufficiently serious that the certificate must be given to the arrested person as soon as is practicable after that arrest. The noble Lord, Lord Paddick, talked about sentences such as 10 years for theft. In fact, this not only applies to prison sentences of at least three years but, as I said, it applies to sufficiently serious offences. Offences such as stealing a bike or shoplifting would not satisfy that second point.
The noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, talked about human rights considerations. It is right that noble Lords interrogate this point, but the Bill is purely about shifting the point at which the police can intervene and arrest a wanted person. It in no way reduces the safeguards that must apply to any subsequent extradition proceedings considered by the court or the Home Secretary. Judicial oversight will continue as it does now after any arrest. The courts will continue to assess extradition requests as they do now, to determine, for example, whether extradition would be compatible with the individual’s human rights or whether the person would receive a fair trial. If they would not do so, extradition would be barred. That would include things such as the prison conditions that they might face and of course the death penalty, which the noble Lord, Lord Kennedy, raised.
The noble Lord, Lord Anderson, asked about the triage process. First, it applies only to specified countries; countries with a poor human rights record are not in scope. The addition of any other country will require the consent of both Houses of Parliament. Secondly, it applies only to sufficiently serious offences; the power will be available only in relation to offences that would be criminal in the UK and for which an offender could receive a prison sentence of at least three years.
The noble Lord, Lord Anderson, the noble and learned Baroness, Lady Clark of Calton, my noble friend Lord Inglewood and the noble Baroness, Lady Jones of Moulsecoomb, asked whether we already have the power to get an emergency warrant in urgent cases under the current mechanism for provisional warrants—basically, do we not already have the correct provisions in place? Crucially, however, under the current mechanism the police must already be aware that the individual is in the UK. It is not relevant here, as this legislation is concerned with chance encounters. The Bill creates an additional, different mechanism, which deals with these chance cases.
The noble Baroness, Lady Ludford, the noble and learned Baroness, Lady Clark of Calton, my noble friend Lord Inglewood and the noble Baroness, Lady Jones of Moulsecoomb, interrogated again the necessity for the Bill because of the numbers that might be involved. Obviously, it is a new power, so there is no accurate way to predict how many people it will apply to, and there is no quota, which makes this the right thing to do for security and public safety. It is about ensuring that UK police officers have the power to arrest dangerous individuals whenever they come across them on the street, to prevent them offending or absconding. However, I am clear today, as I was yesterday, that one dangerous fugitive on the streets of the UK whom we cannot arrest is one too many.
On some of the figures we have now, as of 31 December last year, over 4,000 Interpol alerts were in circulation from the countries specified in the Bill. Not all will be for fugitives in the UK, and not all will meet the seriousness criteria for this new arrest power. However, they include requests relating to terrorism, rape and murder, and if any of these wanted fugitives enter the UK or are encountered by police on UK streets, the police would not currently be able to arrest the individual. One dangerous fugitive is one too many.
The other question about necessity relates to the point made by my noble friend Lord King, which I echoed, on the international nature of crime now.
The number six in the impact assessment has been interrogated widely. It is not an indication of the number of dangerous individuals who would be arrested under this power; it is an analysis to assess the economic impact on the wider system. It is not a prediction of arrest numbers; that is to misunderstand the analysis. We cannot quantify how many opportunities to arrest dangerous fugitives have been missed because they have been missed. We can quantify the 4,000 Interpol alerts currently on the UK systems from specified countries; of course, the police would not have powers to arrest without the Bill.
Baroness Ludford
I put it to the noble Baroness that the statement in the impact assessment seems pretty clear. It says:
“The policy is expected to result in 6 individuals entering the CJS more quickly than would otherwise have been the case.”
That seems pretty simple. How can it mean anything but that?
Baroness Williams of Trafford
I am clarifying why that is not the case but if I am not clear, I will write in further detail to noble Lords before Committee. I am aware that time is pressing and I have a few more points to cover.
The noble and learned Baroness, Lady Clark, mentioned the lack of judicial scrutiny. That will come after the 24-hour period through the courts.
The noble Lord, Lord Anderson, talked about abuse of Interpol channels. International organisations such as Interpol are critical to our vision of a global Britain and international law enforcement co-operation beyond the EU. Interpol provides a secure channel through which we exchange information on a police-to-police basis for action. The UK continues to work with Interpol to ensure that its rules are robust. The former chief constable of Essex was recently made the executive director of policing services for Interpol—the most senior operational role in that organisation. Also, a UK Government lawyer was seconded to the Interpol legal service to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states. I know the issue to which the noble Lord refers, but I hope that this gives him some comfort.
Facial Recognition Surveillance
Baroness Ludford Excerpts(4 years, 2 months ago)
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Baroness Williams of Trafford
The noble Lord makes a very good point and I think I know to which cases he is referring. The police must be able to use the technology available for policing purposes, but within the framework I have just discussed.
Baroness Ludford (LD)
My Lords, the ICO statement of last Friday reiterated the call for the Government to introduce a statutory, binding code of practice, so there has been no change since October. Can the Minister tell us whether she believes the comment in the Statement, “The innocent should have nothing to fear”? Is she proud of that comment by the Government? It really is a complete red herring in terms of data protection and privacy rights.
European Union (Withdrawal Agreement) Bill
Baroness Ludford ExcerptsTuesday 14th January 2020
(4 years, 3 months ago)
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Baroness Bennett of Manor Castle (GP)
My Lords, I support both these amendments. I will begin with the words of the noble and learned Lord, Lord Keen, from the end of our very long day yesterday:
“EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here.”—[Official Report, 13/1/20; col. 552.]
I contrast that with a report from 10 October, when the Security Minister, Brandon Lewis, was quoted as saying that EU citizens who do not apply for settled status face deportation.
I ask your Lordships to put yourselves in the shoes of an affected citizen here in the UK, who may have come here quite recently or have been here for many decades, and think about which set of words you will have heard more clearly, which set of words will be affecting your sentiment and understanding of your place in the United Kingdom. I think everyone knows that what people will be hearing, worrying about and fearing are the words “threatened with deportation”. We are talking about up to 4 million people being affected. The latest figure I have seen is that 2.5 million people have applied for settled status. However, as the noble Viscount, Lord Waverley, said, there are also the 1.4 million UK citizens across Europe, for whom reciprocity means that they will be affected by how we treat their fellows here in the UK.
My arguments for these amendments fit into two groups. First, there are the practical arguments. As many noble Lords have said, to have a physical document will be immensely useful in dealing with landlords and immigration—just knowing that it is in your wallet or purse. There is also the fact that to have a declaratory scheme is far easier and far less daunting. That is a practical benefit. Those are the practical advantages. But there is also the question of sentiment—sending a message of welcome to our EU and other friends who are part of our communities. I urge noble Lords to back these two amendments, to back the message which the noble and learned Lord, Lord Keen, delivered last night and which the Government say they want to send to these citizens.
Baroness Ludford (LD)
My Lords, I too support these amendments, which were introduced by my noble friend Lord Oates and which are in his name and those of the noble Lords, Lord McNicol and Lord Kerslake.
I too was pleased to hear the noble and learned Lord, Lord Keen, say last night that those with pre-settled status would
“receive an automatic reminder to apply for settled status before their leave expires.”—[Official Report, 13/1/20; col. 552.]
I may have lost track of this issue, but is that new? I do not remember it. I remember that we on the EU Justice Sub-Committee asked repeatedly for that to happen, as well as for physical proof of status. Perhaps it is not new, but I do not recall when I was on that sub-committee that that system had been set up by the Government, and I am pleased that it now exists. Perhaps the Minister could explain whether it is new.
Some of us worry about 40% of people getting pre-settled status. Have the Government been able to do any surveys or analysis of how many people genuinely do not have the five years’ residence they need for settled status, or of those who give up because they have not managed to provide the evidence that is required for five years, some of which might be a little challenging to provide?
In a different context, I read in the papers about people who have had real problems convincing HMRC—regarding the years they need to clock up for a state pension—that its records are wrong about national insurance contributions. People have talked about how it has taken a year’s effort to persuade HMRC that they did indeed make national insurance contributions in a particular year. So the part of the supplying of evidence that relies on HMRC and DWP records may or may not be accurate. Some people might be struggling.
Can the Minister tell us whether there is any analysis of how many people genuinely do not have five years’ residence, and of those who are having difficulty providing the necessary evidence? A lot of us are very concerned about this. I agree that the Home Office appears to be putting good effort into it—some of my colleagues went to Liverpool; I did not manage to do that. None the less, the consequences come June of next year of people not having settled status are so severe that we cannot afford to overlook any possible problem—of course, I support the proposal that we pursued on the EU Justice Sub-Committee that applicants should get physical proof. We never managed to get, to my satisfaction at least, a good answer from the Home Office on why it refused to countenance that. I am sure the Minister will give us that answer.
That tracks into the fact that, as my noble friend said, there are people with permanent residence who believe, wrongly, that they do not need to apply for settled status. That adds to the concern about people who may find themselves bereft in 18 months’ time.
Lord Scriven (LD)
The Data Protection Act protects all data whether written or digital. Therefore the argument is nonsensical.
Baroness Ludford
I think my noble friend is forgetting that immigration data is not protected under the Data Protection Act put through last year or the year before. I think there is litigation going on about that.
Baroness Williams of Trafford
The point I am making is that if you have a physical document which outlines everything, people have access to everything. When people go into banks, they do not necessarily know which documents to bring. Under the digital status, employers and landlords are entitled to see only the data which they need to see.
Lord Warner
Before the Minister moves on, sticking with this issue, I am totally confused—more than usual. The Minister said earlier that, if I have been sent my letter from the Home Office describing my status, I can then apply for another document of some kind that I can produce to other people who want the other document. That seems to be an alternative to the code. Will the Minister explain what is the difference between the letter and the other document that I can apply for, which apparently I can use to satisfy someone that I am entitled to something?
Baroness Ludford
Before the Minister gets up, I do not think I heard her answer the question about whether the settled status database is going to be available outside the Home Office, within government and to third-parties outside government. Will she answer that very precise point?
Baroness Williams of Trafford
I shall start with the point made by the noble Lord, Lord Warner. The letter is confirmation that you have been successful. It is not evidence of your status, but it is there for anyone who wishes to have a physical document to say that they have been successful.
On the digital status—this comes to the point made by the noble Baroness, Lady Ludford—if you want to rent, it could be accessed by the landlord. There is access to the data for people who need to see it for the purposes for which they need to see it.
Baroness Williams of Trafford
No. I am going to continue, and the noble Lord can speak when I have finished if he wishes.
I want to move on to the point that the noble Lord, Lord Oates, made about the criminalisation of people who do not apply by the deadline. That is a very important point—made also, I think, by the noble Lord, Lord McNicol. An EU citizen who fails to apply to the EU settlement scheme before the deadline will not be acting unlawfully in the same way as an illegal entrant or overstayer would be. They will not have knowingly entered the UK in breach of the Immigration Act or overstayed their leave. That is an important point to make. Once free movement has ended, they will need leave to remain in the UK—there is an important distinction there. We set up the EU settlement scheme to provide a quick and easy way to secure that leave, confirming their status in the UK.
We have been very clear that we will take a pragmatic approach, in line with the agreements, to provide those who have reasonable grounds for missing the deadline with a further opportunity to apply. I hope that that helps the noble Lord. He might want to intervene to ask what constitutes reasonable grounds for missing the deadline. We have deliberately not published a list of acceptable grounds for missing the deadline. As the noble Baroness, Lady Ludford, requested, we will send reminders to those with pre-settled status six months before their leave expires so that they can apply for settled status. In the first instance, we want to continue to encourage people to apply. We do not want to provide an exhaustive list as we want to give ourselves the maximum possible flexibility when this situation arises. Examples of people in such a situation might include a child whose parents or guardian failed to apply on their behalf, people in abusive or controlling relationships who are prevented from applying or from obtaining the documents they need, or those who, as I said before, lacked the physical or mental capacity to apply.
The noble Baroness, Lady Ludford, pressed me again on the automatic reminder. I have previously confirmed that there will be an automatic reminder. In fact, in the EU Settlement Scheme: Statement of Intent, published in June 2018—quite some time ago—we committed to reminding people ahead of the expiry of their pre-settled status and it remains our intention to do so. That is not in place yet, as it will not be needed until five years after the first granting of pre-settled status, if that makes sense, so it will be September 2023 at the latest. The noble Baroness is looking puzzled. That is because March 2019 was day one, so it will not be needed for another five years.
Baroness Ludford
If they had already had two years, they would not need another five years.
Baroness Williams of Trafford
The noble Baroness is absolutely right. I think that my last statement was wrong, but I shall confirm that to her in writing.
The noble Baroness talked about people struggling, and I think that I have outlined some of the ways in which we are trying to help people to make their application. She will have heard me say previously how we have put money into various centres around the country to help people.
The noble Baroness also asked whether we are still granting permanent residence. Yes, we are.
On the question of why settled status is better than permanent residence, you do not have to be exercising treaty rights to get settled status; there is a more generous right of return—so five years rather than two years permitted absence—and there is an automatic entitlement, as a UK national, to benefits for those with settled status. However, that does not stop people from applying for permanent residence, and they do.
Finally, my noble friend Lord Hamilton of Epsom and the noble Viscount, Lord Waverley, talked about UK nationals in the EU. I recall the discussion that we had about unilaterally guaranteeing the rights of EU citizens, but they asked about UK nationals in the EU. The withdrawal agreement that we have reached with the EU provides reciprocal protections and certainty on citizens’ rights. The agreement applies equally to EU citizens here and UK nationals in the EU, in their member state of residence, by the end of the implementation period. Ministers and officials have already engaged extensively with UK nationals across the EU and will continue to do so. I am very pleased to hear about the good experiences of the noble Viscount, Lord Waverley, in Portugal.
Baroness Williams of Trafford
I agree with my noble friend; of course, that will be a matter for future negotiations. In the meantime, I ask the noble Lord to withdraw his amendment.
Baroness Ludford
I should correct myself. The Minister was kind enough to say that she would have another look at that reminder system. After all, people could have four years and 300 or whatever days, just not five years. That system needs to come in a lot sooner; they might need a reminder in the next few months. Also, I do not quite understand—it may just be that I do not understand immigration—why the Home Office is twin-tracking settled status and permanent residence. I take the point that for settled status you do not have to be exercising treaty rights and perhaps simply have to meet a tougher standard for permanent residence. However, I do not see the value, either to the applicant or to the aim of simplicity and understanding of the immigration system, to have these two systems running coterminously.
Baroness Williams of Trafford
I ask the noble Baroness to understand that perhaps they might not be EU citizens.
Freedom of Movement
Baroness Ludford Excerpts(4 years, 11 months ago)
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Baroness Williams of Trafford
My Lords, in any scenario—deal or no deal—there will be a transitional period until the end of 2020 to give businesses time to adjust. In a deal scenario, free movement will continue during the implementation period, but in a no-deal scenario, the Government’s European temporary leave to remain scheme will enable EU workers to continue to come to the UK visa-free for three years. On the question of the Green Paper, in December last year, the Government published a White Paper setting out our proposals for the UK’s future skills-based immigration system after our exit from the EU, taking as a starting point the MAC’s recommendations.
Baroness Ludford (LD)
My Lords, should we not also focus on the fact that this Government are stealing from British citizens the freedom to live, work, study or retire in another EU country? Can the Minister explain why the Prime Minister talks misleadingly about ending free movement as “taking back control of our borders”? She was perfectly capable three years ago of explaining that passport checks, which we can and will continue to impose as we are outside Schengen, sit compatibly alongside the freedom to move to work without red tape. They are not the same thing.
Baroness Williams of Trafford
I am not sure what the question was there. As for stealing UK citizens’ rights, from a UK point of view we have made provision for EU citizens’ rights in the UK. It is clearly up to individual member states how they reciprocally deal with that.
Passports
Baroness Ludford Excerpts(5 years ago)
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Baroness Ludford
To ask Her Majesty’s Government why not all newly issued passports have the words “European Union” printed on them.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as part of the long-term operational arrangements to prepare for the UK leaving the EU, burgundy British passports that do not include “European Union” on the front cover were introduced as planned from 30 March. Whether their passport does or does not reference the European Union makes no difference to British citizens: both are equally valid for travel.
Baroness Ludford (LD)
My Lords, not only are we still in the European Union but, after tonight, we may be so for another nine months—perhaps even a year. During that time, the UK and the Government will enjoy all the rights and obligations of EU membership, including that of sincere co-operation. Why are the Government refusing to pass on those rights to their citizens, who want “European Union” on their passports? Why are they refusing to co-operate sincerely with their citizens or respect the will of those people?
Baroness Williams of Trafford
With respect to the noble Baroness, this has absolutely nothing to do with the will, or otherwise, of the British people, but everything to do with them voting to leave the European Union and the Home Office making preparations in changing passports. I really think that her point is not very good.
Freedom of Expression
Baroness Ludford Excerpts(5 years ago)
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Baroness Ludford
To ask Her Majesty’s Government what action they are taking to ensure freedom of expression following the temporary detention by Border Force of a man at Gatwick airport for displaying an anti-Brexit badge.
Baroness Williams of Trafford (Con)
My Lords, freedom of expression is enshrined in Article 10 of the European Convention on Human Rights. This includes the,
“freedom to hold opinions and to receive and impart information and ideas without interference by public authority”.
Under the Human Rights Act 1998, public authorities have to act compatibly with the convention. The Government are happy to take this opportunity to reassure Parliament that they take freedom of expression very seriously and are determined to promote it actively.
Baroness Ludford (LD)
My Lords, I am not sure that that answers the Question. I think that the House’s understanding of the Question will be enhanced by my explaining, at the risk of breaking conventions, that the badge worn by Mr Brinsmead-Stockham read: “Bollocks to Brexit”—like the one I have with me. It was a bit rude, certainly, but surely not a reason to be detained by Border Force. Meanwhile, a leave campaigner has put malicious devices on train tracks in a politically motivated attack on infrastructure, which is apparently not being treated by the police as terrorism. Should the authorities not get their priorities right?
Baroness Williams of Trafford
The individual concerned was delayed as opposed to detained—I think that there is a clear difference between the two.
Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019
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Lord Marlesford (Con)
My Lords, I too was unable to attend the debate on this instrument in Grand Committee but it seems that this is an opportunity to make some general remarks about its purposes. Frankly, I can think of no area of importance where our impending departure from the European Union needs to be less of an obstruction to our national security than the exchange of intelligence, as regards both policy and administration. These are all matters of mutual interest, not only between the United Kingdom and other members of the European Union but between the United Kingdom and other nations of the world. I therefore believe that what is needed is some sort of White Paper from Britain to take advantage of our departure from the EU to set out fresh targets of practical achievement—better security, better exchange of intelligence and better safeguarding of rights. However, we have seen many recent examples of where the present system simply does not work; the noble Lord, Lord Paddick, gave some but there are others. I suggest in particular something I have been pursuing for many years in this House: the need for the United Kingdom passport agency to be aware of other passports held by British passport holders.
This is self-evident to most people, but the Government, or rather the Home Office, have objected again and again to implementing it. Current regulations require that if you apply for a British passport, you must declare what other passports you hold. Not only is that information not retained—I have been told that by Home Office officials—but it is certainly not available, as it should be, to those charged with administering the security of our borders.
What should happen, of course, is that the electronic screening of the passport of anyone who passes through border control, into or out of the United Kingdom, should reveal what other passports they hold. In most cases, that would mean no further action, but there could be cases where it would be crucial to improving our national security. There has been a lacuna in creative thinking on this whole subject by the British Government, and the opportunity for us now to get a grip on it is provided by our impending departure from the EU.
Baroness Ludford (LD)
My Lords, my noble friend Lord Paddick comprehensively covered a point I raised in Grand Committee. He is quite right to say that I fear the Minister did not answer my question, which was: do the EU 27 countries have to change domestic legislation in the same way as us as we shuffle between Parts 1 and 2 of the Extradition Act to operate Council of Europe Convention 57? Subject to what the DPP said, we know that they have the Council of Europe convention in their domestic legislation to operate with non-EU countries. We need to know whether that will be available to operate with us if we are no longer in the EAW.
Interestingly, I discovered that the noble Lord, Lord Jay of Ewelme, chairman of the EU Home Affairs Sub-Committee—on which I do not have the pleasure of sitting; I am on the Justice Sub-Committee—wrote to the right honourable Nick Hurd MP, Minister of State for Policing, last week on 13 March. The committee had held an evidence session on 27 February. One point was in response to an official I remember working with when I was an MEP but is now, I think, in the Home Office. The letter states that,
“we remain concerned by the extent to which the effectiveness of, as Ms Ellis put it, the ‘plumbing’ put in place by the UK to move cooperation to non-EU mechanisms is ‘dependent on the position of other member states’. Whatever the extent of the UK’s preparations, it is not at all clear that our European partners would be ready to cooperate with us on the basis of the alternative mechanisms the Government intends to rely upon in a ‘no deal’ scenario”.
I have not had the opportunity to catch up on all the evidence, but that letter is in the public domain; it is published on the committee’s website.
Our distinguished colleagues on the EU Home Affairs Sub-Committee are obviously well apprised of the issue, and the Minister’s colleague, the Policing Minister, will presumably have to reply within 10 days. We are interested in precisely the same point. It would cover issues such as extradition of own nationals and political exemptions as well as the basic plumbing, as it was put.
The letter of the noble Lord, Lord Jay, also said:
“We would also be grateful for further information on the UK’s current operation of the Council of Europe Convention on Extradition—which witnesses indicated would be the ‘fallback’ mechanism for future cooperation on extradition with EU countries—with countries such as Norway”.
To inform our knowledge of how this alternative plumbing mechanism would work, how is it working at the moment with Norway?
Immigration (European Economic Area Nationals) (EU Exit) Order 2019
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Lord Green of Deddington (CB)
My Lords, we risk getting somewhat lost in the detail here. It seems that the Government are now proposing to open up some 9 million jobs to worldwide competition, while at the same time effectively continuing with free movement to the European Union, as the noble Lord, Lord Paddick, said. As I said before, the risk is that this will run straight out of control. We really need to get hold of this, stay on the main points and be quite sure that the Government are ready to react if the numbers start getting really difficult.
Baroness Ludford (LD)
My Lords, I add to what my noble friend Lord Paddick said—it is the disjuncture and hypocrisy that upsets us. Of course, this is a one-way continuation of free movement. Many of us were extremely distressed when the Prime Minister cited the top reason for celebrating her ill-fated draft withdrawal agreement and political declaration last November; apparently, its top benefit was ending free movement. In fact, this is not happening—at least, not into the UK—and no consideration was given to the benefits of free movement for UK citizens in the rest of the EU. This instrument says nothing about those opportunities, which are being torn away from UK nationals. This will particularly affect young people and those of all ages who want to work or retire in the rest of the EU. It is the Government’s inconsistency which strikes such a difficult note.
Had I had the opportunity to ask my noble friends on the Front Bench, who know a great deal more about immigration law than I do, I may not have needed to ask this question, which concerns the difference between Articles 3 and 7, which I do not really understand. Article 3 is entitled:
“Grant of leave to EEA and Swiss nationals”.
Article 7 is entitled:
“Grant of leave by virtue of Appendix EU to the immigration rules”.
I simply do not understand the difference between those legal bases for extension of leave, as “EEA nationals” covers EU nationals as well. Perhaps the Minister could help me. That also spills over to the health charge, because Article 10, on exempting from the health charge, appears to apply only to those who acquire leave to enter or remain,
“by virtue of Appendix EU to the immigration rules”.
It does not appear to cover those who get leave under draft Article 3. As I say, it may just be that I do not understand how all this interacts, but perhaps the Minister can enlighten me.
Lord Deben (Con)
My Lords, I thank my noble friend for the careful and charming way in which she introduced this SI. But we had better remind ourselves what “free movement” actually means. It means that people can move from one part of the European Union to another—but in fact, of course, at some stage they have to have a job. You can remove them from one country to another if they do not have one. That is part of the arrangement.
My worry about this is that we say that we are ending free movement, but actually we have not included the one thing that is a perfectly proper restriction on free movement that we have had up to now. So we are removing the one thing that most people would find unacceptable, which is the mechanism whereby you make sure that people move around the European Union with a purpose and do not become a burden on a particular country they have chosen to go to. I find that bit really very peculiar. No doubt the Government have thought that all through, so we will hear exactly how it works.
Although I shall say this as politely as I possibly can, I think that this is a load of old nonsense. I really do think that the idea that we will grant these opportunities for the rest of Europe but are putting ourselves into a position in which none of these opportunities might be granted to any of our citizens seems to be one of the best examples of the fact that Brexit is a mechanism for shooting ourselves in the foot. The reason we are doing this in a one-sided way is exactly the same as with every other SI we have had: the only things we can do with SIs are the things that affect us, rather than anything in the rest of Europe that affects our people. What better exemplar of the stupidity of leaving the European Union can there be?
My noble friend is of course bound to defend the Government’s policy—although I have to say that I am not really sure what the Government’s policy now is. Indeed, I have not really been sure for some long time, and today it seems even less clear than it was yesterday. No doubt tomorrow it will be more opaque still. But the reality is that this SI displays the fundamental problem that, during the referendum campaign, a lot of promises were made. One of them was, as the noble Lord, Lord Paddick, said, that we would “take back control”. So we are taking back control to allow other people to travel into our country, but removing our right to travel into their countries. As a piece of control taking back, that seems somewhat limited in its attraction.
I often ask myself how I would speak on a platform if I was asked a question about these SIs. Indeed, it is a way I think when I look at what we are proposing on the climate change committee. I say to myself, “How would I explain that on a platform?” It is a useful thing for a long-term politician. So I am standing on a platform and somebody says, “Can I go to the rest of Europe like I have always done?” The answer is, “We don’t know, because we haven’t done a deal on that”. “Can my aunt, who happens to be French, come to Britain even if she hasn’t got a job?” The answer to that is probably yes. “How do they make sure she’s here for only three months if she doesn’t have to show her passport or have it stamped?” The answer is that they probably cannot. “Well, will they look out for her?” “No, we’ve agreed that there’s not going to be any looking out for people; it’s not going to be like that at all”.
How does that draw that into the same position as somebody who comes from the United States? Of course, that is entirely different; they have to show a passport and make the arrangements. I do not mind that, because we do not have a mutual arrangement with the United States—but at least we do not have a one-sided arrangement with the United States. At least we do not say that Americans can come here and do all these things and we have no willingness to go there.
I really got up to say to my noble friend how sorry I am that she has had to defend this SI—because it is indefensible. It is a nonsense. It is quite wrong to give other people the rights to enter our nation and say that that is taking back control, and it is quite wrong to give those rights without having previously arranged that we should have the same rights in the rest of Europe. To hide it behind the use of the phrase “free movement” is, of course, the really serious thing, because free movement has always been restricted. If the Government have not used those restrictions effectively, that has been the fault not of the European Union but of United Kingdom Governments of all denominations and types. So I say to my noble friend: okay, no doubt the SI will be passed, but do not think that it does any honour to this Government—and it certainly does no honour to Britain. I am getting more and more embarrassed at the way the rest of the world is seeing us.
Immigration, Nationality and Asylum (EU Exit) Regulations 2019
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The Lord Bishop of Durham
My Lords, it is striking how small a part asylum and resettlement have played in the conversation about a post-Brexit immigration system. Assuming—and praying—that we do not leave without a deal, I hope that discussion of these vital areas will not be limited to the margins of an already limited engagement with the immigration White Paper and the SIs. I have a series of questions for the Minister.
It might just be me, but I often struggle to see evidence of the Home Office applying the family test in SIs and other areas. Can the Minister assure me that the family test has been applied to these SIs? There is potentially a bit of a catch for people who have made an asylum application in an EU member state prior to 29 March, and who might have chosen to use the Dublin process for the purpose of family reunion. For such people, that might fall out if we leave on 29 March. Can the regulations be amended to ensure that, if they have made an application before 29 March, they will be able to use the Dublin process afterwards?
I endorse the questions of the noble Baroness, Lady Lister, and shall add a couple more. Of the 1,215 people reunited in the UK under the Dublin system in 2018, more than 800 arrived under Article 9, which allows people who claim asylum in another Dublin member state to join a relative in the UK who has been granted international protection. What assessment has the Minister made of how many of those people may have been eligible to be reunited under Part 11 of the UK’s Immigration Rules? Article 9 also allows people in other EU member states to join relatives in the UK who have been granted refugee status. It is concerning that people in these circumstances have had to travel to Europe to reunite, rather than being able to apply for refugee family reunion under the UK’s own Immigration Rules. What plans does the Minister have to improve access to refugee family reunion under Part 11 of the Immigration Rules, including by expanding eligibility and reducing the costs that families face?
I fully accept that we have to withdraw from the Dublin arrangements, but it is about protecting people, as the Government have promised, into the future. Like the noble Baroness, Lady Lister, I am grateful to the British Red Cross for its advice on this.
Baroness Ludford (LD)
My Lords, the right reverend Prelate makes a good point about the continuity of claims that have already commenced. If memory serves, the law enforcement regulations we were discussing earlier make provision for the continuation of cases that have already started. I too am interested in the answer to that question.
When we were discussing the previous SI, several of us were rather struck by the contradiction between the rhetoric about ending free movement and the reality that the Government actually intend to continue it on a one-way basis with no supervision or control whatever, which seems rather perverse. I am also struck by the proposal to pull out of Eurodac and the Dublin regulation, over which I sweated many days, weeks and months as an MEP—but that is neither here nor there.
The Home Secretary made several assertions on this earlier this year—not least when he curtailed his Christmas holiday to come back and deal with what he claimed was the major incident of a few hundred migrants crossing the channel. When addressing the other place on 7 January, he said that the first safe country principle is,
“at the heart of the EU’s own common European asylum system”,
which underpins the 2005 procedures directive and 2004 qualification directive. He went on:
“It is also a principle that underpins the Dublin regulation. The whole point of the Dublin regulation is that if someone has passed through another EU safe country, it is expected that they claim asylum first there”.—[Official Report, Commons, 7/1/19; col. 89.]
Both in that speech to the other place and in numerous instances of press coverage, not least in the Daily Telegraph, a great deal of emphasis was placed on the ability of the UK to send back to other EU countries, particularly France, people whom he thought might be designated economic migrants and would not qualify for asylum. How he could know their status in advance is another question. He made a great deal of this ability of the UK to send people back rather than allowing them to seek asylum in Britain. I found another assertion as recent as a few weeks ago; defending his call to declare a major incident in January, he suggested on 21 February on a visit to Dover that,
“those seeking asylum in the UK should have done so in France or elsewhere on the continent”.
A great deal of emphasis has been placed by the Government, particularly the Home Secretary, on the mechanisms of Eurodac and the Dublin regulation. Suddenly, they are going to disappear.
The Government have made some claims about what they hope to put in its place. Indeed, in the report of the Secondary Legislation Scrutiny Committee we are told in Paragraph 8—apparently this was supplementary information supplied to the committee—that the Home Office said:
“We are also mindful of the obligation in section 17 of the European Union (Withdrawal) Act 2018 (family unity for those seeking asylum or other protection in Europe)”.
As the noble Baroness, Lady Lister, pointed out, under Section 17 of the EU withdrawal Act this would apply only to children. The Home Office went on to say:
“We currently work bilaterally on returns with France where for example the Sandhurst Treaty, and the subsequent Joint Action Plan, features a mutual commitment to return more migrants to France who have used boats to illegally cross the Channel”.
Could the Minister tell us how the family unity provisions under Section 17 of the EU withdrawal Act will work in the absence of the Dublin regulation? How will the arrangements with France, or with any other member state, work—sending people back whom the UK claims need to direct their claims towards the authorities in an EU state? What is the state of play on any replacement measures? Will we just have a blank space where Eurodac and the Dublin regulation currently exist?
Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019
Baroness Ludford Excerpts(5 years, 1 month ago)
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Baroness Ludford (LD)
My Lords, just what we will lose by not being part of all these EU measures emerges less from the fairly dry Explanatory Memorandum to the measure and more from the Government’s document of last November, Assessment of the Security Partnership. The introduction in paragraph 2 of the Explanatory Memorandum cites a lot of the issues, but the document of last November talked about how,
“the UK would rely on the 1957 Council of Europe Convention on Extradition. Without a surrender agreement as proposed in the Political Declaration”—
which itself begs the question of what such a surrender agreement would consist of—
“requests would be subject to a longer and more complex process, and extraditions would be more difficult”.
Although I have not seen any examples recently, we saw that difficulty in the extradition of a convicted person from Georgia. I do not know whether the Minister has any updates on how long that process will take, but it clearly takes a lot longer to extradite under the 1957 convention. To make the case for the UK’s need to stay in the European arrest warrant, or something very similar, the document of last November also cited how,
“ten years elapsed between the request to extradite Rachid Ramda, an individual accused of terrorism in France, and his eventual surrender in 2005”.
We could be talking about such extraditions taking anywhere between several months and a decade.
Indeed, one commentary raised the issue that,
“Extraditions under the Convention are not automatic and the state of bilateral relations can influence decisions. It takes 18 months on average to extradite a suspect under the Convention”—
in contrast to a few weeks under the European arrest warrant. Clearly, even just looking at extradition, the consequences of not having something similar to the European arrest warrant are severe.
It struck an odd note with me that the commentary in paragraph 2.7 of the Explanatory Memorandum says that is necessary,
“to revoke the relevant retained EU law to ensure that the domestic statute book operates effectively following the UK’s withdrawal”.
As my noble friend Lady Hamwee said, we know from senior police officers, including the Metropolitan Police Commissioner, that if we are not in the European Union, it is impossible for our systems to operate as effectively in terms of security and law enforcement co-operation across Europe. That includes all scenarios, not just no deal, although it applies particularly to a no-deal exit. It is odd to say that we need to do this so that our statute book operates effectively. I understand what that means, technically, but it is not the same as saying that our law enforcement system would operate effectively. We need to measure the impact of this decision. We need to know its effect on our effectiveness in fighting crime and bringing people to justice, and on our court systems and police—indeed, on our civil servants. Unlike the European arrest warrant, if you fall back on the 1957 convention civil servants and Ministers are involved.
On extradition, the aim is that the UK will have the correct legal underpinning to operate the 1957 convention. I think that is referred to somewhere as the housekeeping between Part 1 and Part 2 of the Extradition Act. I think that was in paragraph 12.5. At the briefing meeting that the Minister kindly put on a week or so ago, I tried to ask whether we have any knowledge of what our partners would need to do in terms of similar housekeeping and whether they are prepared to do it. Even if they still have the 1957 convention on their statute books—which they may well have for non-EU Council of Europe countries—they might have to make some domestic legislative changes, similar to ours under the Extradition Act, to make that work.
Then there is the fact that it is much more difficult to extradite under the 1957 convention, which is precisely why the EAW was brought in. Some countries, such as Germany, have constitutional bars on the extradition of their own nationals, which the EAW solved. Does the Minister have any information on whether Germany is prepared to extradite its nationals to the UK in the scope of the 1957 convention? Some countries operate political exemptions, which were abolished by the European arrest warrant for a common list of crimes. That makes extradition more difficult.
Then you have the legal uncertainty under human rights law. I do not want to get totally into the subject of human rights and our worries about the Government’s intentions in that respect, but they have said that they continue to keep in their sights what they call reform of human rights law. A state of legal uncertainty surrounds the continuity of human rights protection in this country—if the Human Rights Act were to be abolished, for instance, let alone if we withdrew from the European Convention on Human Rights. What impact will that have on the confidence of partners to extradite to us?
If one looks at the Norway and Iceland treaty with the EU—the aim of which is to have procedures similar to the European arrest warrant but with some differences—that took 13 years to negotiate and there have been problems amending the national laws of some EU countries and Iceland. As of last June, Ireland and Italy had still not ratified that treaty. It gives you an idea of the problems if you drop out of the European arrest warrant and rely on the 1957 convention. The Government are failing to give us any information about what they understand to be the willingness of partner countries to extradite to us.
I have a couple of other points. The Government say that we will retain some data protection rules under which data was originally received, such as SIS data. Are they sure that there is no contradiction between those rules and the Data Protection Act? The aim is to have no gap, but have the Government done a filter to check that there is not a contradiction in any case between the rules under which the data was received from EU partner countries and the Data Protection Act?
Baroness Williams of Trafford
My Lords, I shall start with the final point from the noble Lord, Lord Kennedy, which concerns one of our first considerations as we leave the European Union: keeping our people here safe. He hits the nail on the head. For that reason, I hope that down the other end they are voting for the Prime Minister’s deal.
We need to be clear about these instruments. Should the UK leave the EU without an agreement at the end of the month—the no-deal scenario—the UK’s access to these tools and measures would cease. We are absolutely clear about that. At the same time, the UK would cease to be bound by the security-related EU regulatory systems. This would occur as a result of the UK’s withdrawal from the EU through the Article 50 notification, but not as a result of the provisions found in these instruments—I stress this yet again. It is important to be absolutely clear that the regulations play no part in bringing about the UK’s withdrawal from the EU. Rather the purpose of the instrument is to make amendments to the UK’s domestic statute book, including retained EU legislation, to reflect the new situation.
Baroness Ludford
Surely the difference that should be measured is between crashing out with no deal and the Government’s hopes for a security partnership, which are rather ambitious or, some might say, overambitious? The Government want something as similar as possible to what we have at the moment. That contrasts a great deal with simply cutting all our existing measures and systems.
Baroness Williams of Trafford
The noble Baroness makes a good argument, but it is not the basis of this statutory instrument. That is why I thought I would outline it. I do not disagree with her. I agree that we need to make sure that this country is kept as safe and secure as possible, as the noble Lord, Lord Kennedy, says. However, that is not the argument we are having today; I need to make that clear upfront. We are at one on this. There is no way that we want to undermine safety.
The noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, talked about the Secondary Legislation Scrutiny Committee. As they said, it highlighted the sheer range of subjects included in these regulations. The Government responded, setting out the reasoning behind our approach. The changes made by the regulations are in linked policy areas and cover three subject areas—this should start to make it clear why we have linked them all. The three areas are: 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 the investigatory powers made deficient by EU exit.
In regard to 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. 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. 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 to prevent, detect and prosecute criminal activity and to maintain security. Given that these are linked policy areas and that the changes made are very similar across most parts of the instrument—we are making the same sorts of amendments over and over again—we considered that combining them in a single instrument would assist scrutiny by providing as complete a picture as possible in one place. We expect it to assist the eventual users of the legislation, which will include law enforcement partners and prosecutors around the UK and who will often be using combinations of the EU tools covered by these regulations.
Baroness Williams of Trafford
That is pretty much so, but I will get on to that later. The impacts of no deal as a whole are completely outside the scope of the regulations.
The noble Baroness, Lady Hamwee, said that the regulations are indigestible. That is pretty much what the noble Lord, Lord Kennedy, said too, but we cannot avoid them in the event of no deal, given the importance of this area. As I said in my opening speech, most of the changes being made by the regulations are very similar—indeed, one might say repetitive—in most parts of the instrument.
The noble Baroness, Lady Hamwee, made a very serious point about the Liberal Democrats intending to vote against the regulations. Obviously, it would be deeply regrettable, particularly in this area, to take that course of action. The noble Lord, Lord Kennedy, pointed that out. These regulations will provide legal and operational certainty for operational partners. Clearly, it is vital that they uphold the rule of law and protect the public. We should be doing everything we can to support their work and to manage the transition to a no-deal scenario. I hope that does not happen, but if it does that is exactly what the instrument will do. I must say to the noble Baroness that if the changes in these regulations in the extradition space are not made, it is not clear that new incoming extradition requests from EU member states could be lawfully processed, with potentially serious consequences for our extradition arrangements with EU partners.
The noble Baroness asked how many EU member states need to make legislative changes to operate the Council of Europe’s European Convention on Extradition with the UK. All EU member states operate the European Convention on Extradition with Council of Europe countries that are not EU member states. I will not speak on behalf of other member states as to their particular systems, but we anticipate operating the European Convention on Extradition with all EU member states. I think that answers the question asked by the noble Baroness, Lady Ludford.
The noble Baronesses, Lady Hamwee and Lady Ludford, and the noble Lord, Lord Kennedy, talked about extradition. The noble Baroness, Lady Hamwee, asked me about “almost” no policy changes; here there is a tiny tweak which I will now explain. In the case of extradition, the regulations help to support the implementation of the no-deal contingency arrangement. The regulations will ensure that we have the correct legal underpinning, as I have already said, to operate the no-deal contingency arrangement with EU member states. However, the legal underpinning for our contingency arrangements for March 2019—the end of this month—largely exists outside these regulations. To be clear, the convention is already in place, and it is in use by the UK with other countries. These regulations will recategorise EU member states for the purposes of the Extradition Act 2003 so that we can administer requests from them under Part 2 of the Act rather than under Part 1 as at present. That is the tweak. I hope the noble Baroness will agree that it is a small tweak.
The noble Baroness, Lady Ludford, asked how much longer a Council of Europe case will take compared to a European arrest warrant case. We have absolutely accepted that, in the event of no deal and having to revert to Council of Europe conventions, it will take longer and cost more. The noble Baroness also made the point that it will not be as effective in the case of a no deal—she does not want Brexit at all, but that is by the by. The purpose of the regulations is to ensure that the statute book functions correctly and reflects the new situation should a no-deal scenario materialise. She very rightly asked about human rights. 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 also add that this country has some of the strongest human rights legislation in the whole world, and I remain confident that we will be world leaders in that.
The noble Baroness, Lady Ludford, and the noble Lord, Lord Kennedy, very sensibly asked about data protection. The default position on data protection is that in a no-deal scenario we can continue to process data received from other member states before exit day, subject to compliance with the Data Protection Act 2018. One of the principles in that Act is that there should be compliance with the conditions under which personal data was first accessed, which in this case would imply the conditions—including those found in the measures themselves—under which the UK accessed the data while still a member state. However, to put the legal position beyond doubt and to reduce the risk of legal challenge, the approach taken in relevant areas of the regulations is to save the specific data protection measures. Saving those provisions helps to create legal certainty, including for operational partners.
The noble Baroness, Lady Ludford, also talked about the cost per extradition going up, and asked why that is not in these regulations. We have gone over that ground—this is not about no deal generally, but about putting things on the statue book. We are absolutely not denying that the cost will go up and that the time will be longer. I hope that answers all noble Lords’ points.
Baroness Ludford
I do not deny that I have been somewhat distracted by events going on elsewhere—
Baroness Ludford
However, I do not think that the Minister answered my question about other countries.
Baroness Williams of Trafford
I did. The noble Baroness was very involved in her phone. I do not say that as a criticism because I am dying to go on to mine but, if she likes, I will repeat it in a letter.