European Parliament Elections
Baroness Ludford Excerpts(5 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Young of Cookham
Well, I shall certainly be supporting Conservative candidates in the European elections. I am sure that the noble Lord, led by the Opposition Chief Whip, will be heading a task force to the south-west to support the noble Lord, Lord Adonis, even if the price of success means that we no longer have his contributions to our debates on statutory instruments.
Baroness Ludford (LD)
My Lords, does the Minister agree that it would be deplorable if all the effort and money being put in by the Electoral Commission and local electoral returning officers were wasted due to Tory infighting and fear of the European elections? It is rather rich that Brexiters do not like the democracy that the European elections incorporate, having always claimed that the EU is undemocratic.
Lord Young of Cookham
The noble Baroness will be as familiar as I am with the reasons why we might have to go ahead with these elections. After the decision on 29 March not to vote for the withdrawal agreement, it became inevitable that there would be a risk of holding these elections. The Prime Minister has done all that she possibly could to avoid this scenario, and I commend her patience and determination. There is still time to avoid those elections if enough people in another place change their minds and decide to back the deal.
European Union Referendum
Baroness Ludford Excerpts(6 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Young of Cookham
I believe that we should respect the result of the referendum. A number of inquiries are going on into the referendum, which have been referred to. The Electoral Commission is looking into a number of allegations. It makes sense to await the outcome to see whether those allegations are upheld, but I have seen nothing that would account for the very substantial difference in the numbers who voted leave rather than remain.
Baroness Ludford (LD)
My Lords, the case for Brexit once rested on promises of sunlit uplands. Those have long vanished. The only thing Brexiteers now cling to is the will of the people, but that cannot be measured by a cheating referendum, dodgy money and manipulation under Putin’s guiding hand. When will the Government accept that the will of the people must be properly and fairly measured now by a people’s vote on the actual Brexit deal?
Lord Young of Cookham
Noble Lords had an opportunity to debate and vote on that in the recent EU withdrawal Bill. The notion of a second referendum was not one that found favour in either House. On the rest of the noble Baroness’s question, since the referendum, Parliament has voted to trigger Article 50 and we have passed the EU withdrawal Bill. That gives us a democratic mandate.
Brexit: European Arrest Warrant (European Union Committee)
Baroness Ludford Excerpts(6 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Ludford (LD)
My Lords, it is a privilege to follow the noble Lord, Lord Jay of Ewelme, and the noble Baroness, Lady Kennedy of The Shaws, and I completely agree with everything that they have said. I will speak nonetheless. This debate is timely, as the Cabinet’s Brexit committee was scheduled to have a discussion on Brexit-related security issues. Can the Minister tell us more about that?
The Government face a conundrum on security as difficult as that which concerns the Irish border: how to have seamless operations while standing outside EU structures and measures. The Government have fully recognised the value of the European arrest warrant. Their response acknowledges that, as did the Prime Minister in her Florence speech and indeed when as Home Secretary—with a great deal of pressure from her Liberal Democrat coalition partners, notably from the police and parliamentarians in this House—she opted back in three years ago to a range of law enforcement measures. The current Home Secretary has called the European arrest warrant an,
“effective tool that is essential to the delivery of effective judgment on … murderers, rapists and paedophiles”,
and stresses that it is a “priority” for the Government,
“to ensure that we remain part of the arrangement”—[Official Report, Commons, 6/3/17; col. 550.]
that is, the EAW arrangement. The Director of Public Prosecutions, Alison Saunders, has pointed out that up to 150 extraditions to the UK in recent years would not have been possible without the European arrest warrant system. She added:
“It’s three times faster to use an EAW and it is four times less expensive for us to be able to do that as well”.
The protocol 36 decision three years ago on the mass opt-back-in that I have just referred to was explicitly taken in the context of an acceptance of the jurisdiction of the European Court of Justice, so it is something of a mystery why this has become such a symbolic problem for the Brexiteers—one that, unfortunately, has been taken over by the Government. There are numerous problems in departing from the European arrest warrant. Going back to a 60 year-old Council of Europe extradition convention would mean much lower processes based on diplomatic procedures and political decisions. Even that assumes that other member states would be willing to resurrect this old convention; some may have rescinded it in their national laws. It would bring back the danger of political exceptions and difficulties in extraditing terrorist suspects. The noble Baroness, Lady Kennedy, referred to the need for reciprocity. We cannot unilaterally amend the Extradition Act 2003 to designate EU countries as Part 2 countries rather than Part 1, because you cannot do things like that just on your own.
The Norway/Iceland agreement with the EU is often cited as a prototype, but that took years to negotiate and is still not in force. Sir Francis Jacobs, former advocate-general of the court, told the committee that that was less than satisfactory and may be difficult to attain. The EFTA Court has been mentioned but, notably, its jurisdiction was not extended to that agreement because it does not have a criminal-law focus or expertise. The Norway agreement refers to CJEU case law when there is a duty to keep it under review, but even that does not provide the same guarantee of consistency as supervision by the Luxembourg court. So there are question marks over any kind of bilateral extradition agreement with the EU, even assuming that the UK could negotiate one.
I do not need any reminders of the flaws in the European arrest warrant. When I was MEP for London I dealt with the case of Andrew Symeou, and there have been some huge abuses in his case. There used to be a lot of problems with EAWs for minor offences, notably from Poland, but I think there has been great progress and considerable reform. My last act as an MEP was to do a report calling for the reform of the EAW, and I am sorry the European Commission has not thought fit to follow it up. Some of the changes that we wanted, such as a test of proportionality before an EAW was issued and the ability to decline execution in the receiving country on the grounds of a breach of the Charter of Fundamental Rights, have been put into the European investigation order—I shall mention this later—so those reforms have been taken up in that future measure. The EIO itself takes some of the strain off the European arrest warrant because it can call for evidence—for instance, a witness statement, possibly by video—without extraditing the person.
The government response, which has been referred to, appears guilty of muddled thinking because it says that,
“disputes can be resolved fairly and efficiently”,
but it thinks about that in very much state-to-state terms, whereas another part of the response recognises the importance of the EAW on the basis of,
“mutual recognition of judicial decisions”.
That is the core difference between the EAW and international co-operation. It seems that the Government either fail or are unwilling to recognise that the nature of co-operation within the EU in the criminal and policing field is qualitatively different from diplomatic or political co-operation, which is why you need the judicial umbrella. An EAW is not a political process.
As the noble Baroness, Lady Kennedy, mentioned, the European arrest warrant and other crime measures bring into question the liberty of the individual, where the individual needs the opportunity to enforce their rights. They cannot petition the Government to take up the matter with another member state if their rights are infringed in that context. In evidence to the Justice Sub-Committee the noble and learned Lord, Lord Thomas of Cwmgiedd, said:
“It would be perfectly possible to agree an extradition treaty with the EU, but the European arrest warrant operates in a fundamentally different way. Unlike treaties, it is premised upon judicial co-operation. It is very difficult to see how, if an instrument operates on that basis, it can do so without some body at its apex to determine the rules by which it works”.
I think we all want to hear from the Government how they are going to square that circle.
The Government also need to tell us how they are going to ensure access to EU databases that complement cross-border judicial co-operation measures such as the EAW. For instance, the Schengen information system has a database of outstanding European arrest warrants, so it is necessary to access that data. That is why the push is coming from many of us in this House for the Government not to ignore the Charter of Fundamental Rights, because it is crucial to get an adequacy decision from the European Commission.
The noble Lord, Lord Jay, mentioned the Irish case last week where the anticipated failure of the British Government to entrench the Charter of Fundamental Rights in domestic law was the reason for refusing to execute a British arrest warrant. The relevance of the charter is not just about fluffy issues of rights and justice—although some of us think those are essential—it is a matter of hard security. If we do not entrench rights and liberties, including the charter, in our domestic law, we will not be able to catch criminals. We will go back to having the costa del crime. Please will the Government spell out how they expect to secure a comprehensive agreement on security, law enforcement and criminal justice co-operation without subscribing to EU structures and rights, including the procedural rights to which the noble Lord, Lord Jay, referred, which are the foundations that strengthen the whole system of mutual recognition?
The Government say that they want to avoid compromising the security and safety of people in the UK and European Union, but at the same time they want to make the ECJ a red line. This is a circle which cannot be squared. As the noble Lord, Lord Bridges, told the Government last week in our debate on Second Reading of the EU withdrawal Bill, the Government have to choose. I suggest that for a Conservative Government to choose to be soft on crime would not be a happy place for them to end up.
Lord Young of Cookham (Con)
My Lords, perhaps I may take the opportunity first to thank the EU Home Affairs Sub-Committee for producing its report, Brexit: Judicial Oversight of the European Arrest Warrant. I am grateful to all those who have spoken in the debate, and in particular to the noble Lord, Lord Jay, for securing it. The Government welcome the next inquiry, which he referred to in his opening remarks. The noble and learned Lord, Lord Brown, implied delicately that I am a newcomer to this subject and as such I welcome the clarity of the report, its sharp focus on the key issues, and the outline in the concluding paragraphs of a possible way forward. During the debate other noble Lords, including the noble Lord, Lord Marks, suggested their possible solutions and ways forward. However, I am a former Member of Parliament, and some of my constituents were on the receiving end of EAWs and occasionally sought my advice as to how they might possibly evade their reach, and of course as a member of the Cabinet I sat around the table when we opted back into the EAW in 2015, so I am not wholly unfamiliar with the issues raised today.
A range of views have been expressed across the Chamber, but I am reassured by the broad consensus across the House, first, that the EAW is the most effective means available to apprehend individuals wanted by other member states and to ensure that those who have fled the UK are returned to face justice; and, secondly, that the Government should look to sustain as close a partnership as possible with our EU neighbours on security, law enforcement and criminal justice matters after we leave the EU, and that effective extradition arrangements should form part of that new relationship. A number of noble Lords, including the noble Lord, Lord Jay, quoted the Home Secretary, who said that she regarded the European arrest warrant as “an effective tool” helping us to deliver,
“effective judgment on … murderers, rapists and paedophiles”—[Official Report, Commons, 6/3/17; col. 550.]
and that it is a “priority” for the Government to ensure that we can maintain those arrangements. As the noble Lord, Lord Hannay, and others said, these are arrangements of major importance to the country.
In the future partnership paper that we published on 18 September last year, we indicate that we will look to reach an agreement with the EU that provides for practical operational co-operation, facilitates data-driven law enforcement and allows multilateral co-operation through EU agencies. We believe that such an agreement would be in the interests of the EU and its member states, as well as the UK. We are confident that our EU partners share our view on the importance of reaching an agreement that protects the safety and security of citizens and upholds justice in the UK and across the EU. The guidelines adopted by the EU 27 at the December European Council reaffirmed their readiness to,
“establish partnerships in areas unrelated to trade and economic cooperation, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.
Previous examples of the EU’s co-operation with third countries—which is what we would be post Brexit—on security, law enforcement and criminal justice have so far generally been limited to agreements covering individual measures, such as Europol or passenger name records, but our assessment is that other approaches are legally viable. The UK’s geographical proximity to its European neighbours, the volume of cross-border movements between the UK and the EU—including, for the purposes of this debate, the volume of extraditions to and from the UK, which the committee highlights in its report—as well as the high degree of alignment in the scale and nature of the threats that we face, call for a new, more ambitious model for co-operation than those that currently exist.
With this in mind, the Government see a strong case for developing a new, dynamic treaty that provides a comprehensive framework for future security, law enforcement and criminal justice co-operation between the UK and the EU. This treaty would provide a legal basis for continued co-operation between the UK and the EU in this area.
To function properly we need dispute resolution, as referred to by many noble Lords during the debate. An arrangement along the lines that we have proposed will need to be supported by a means of resolving any disputes between the UK and the EU. It would be in the interest of both sides to ensure that the rights and obligations contained in the agreement can be relied upon, that both parties have a common understanding of what the agreement means, and that disputes can be resolved fairly and efficiently. This has been to some extent at the heart of the debate.
Dispute resolution mechanisms are common in EU third-country agreements and other international agreements, including those agreed by the UK. A number of examples are set out in the future partnership paper Enforcement and Dispute Resolution, which the Government published last August. They illustrate the range of ways in which the parties to international agreements, including the EU, have obtained assurances that obligations in those agreements will be enforced, that divergence can be avoided and that disputes can be resolved.
Baroness Ludford
I apologise for interrupting the Minister, but how is that relevant to an individual disputing the execution of a European arrest warrant? How does state-to-state dispute resolution apply in the circumstances of a judicial process?
Lord Young of Cookham
I will come in a moment to the distinction between how country-to-country agreements are enforced and how individuals enforce any rights they might have in the countries concerned.
One common feature of most international agreements, including all agreements between the EU and a third country, is that disputes are not resolved by giving the courts of one party direct jurisdiction over the other. Noble Lords will be aware that one of the Government’s key commitments in leaving the EU, as set out in our future partnership paper Enforcement and Dispute Resolution, is that we will bring about an end to the direct jurisdiction of the CJEU in the UK. I know that that is particularly unpalatable to the noble Lord, Lord Marks, but it is a clear statement of government policy.
Previous examples of the EU’s co-operation with third countries on security, law enforcement and criminal justice demonstrate that direct CJEU jurisdiction is not a requirement for such agreements. Even the more ambitious and strategic relationships that the EU has adopted—for example, the Schengen association agreements and the European Economic Area agreement—do not involve direct jurisdiction of the Court of Justice of the European Union in those third countries.
There is no precedent, and indeed no imperative driven by EU, UK or international law, which demands that enforcement or dispute resolution of future UK-EU agreements should fall under the direct jurisdiction of the CJEU, or indeed that UK courts should have direct jurisdiction over the EU. However, I agree with the noble Baroness, Lady Kennedy, and others that if you do not have the CJEU, you need some other mechanism for resolving disputes. We will therefore look to engage constructively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU in underpinning the effective operation of a new partnership in this area. We do not underestimate the complexities involved in negotiating our future relationship with the EU, but we are confident that there is recognition on both sides of the importance of addressing them and reaching a robust agreement.
The noble Baroness, Lady Ludford, mentioned some of the problems with the EAW, and the noble and learned Lord, Lord Brown, touched on them. Noble Lords may recall that, in 2014, we reformed the operation of the EAW to make sure that it worked effectively and better protected UK citizens. As has been mentioned, individuals will not now be extradited where a case is not trial-ready or where it is disproportionate so to do.
The noble Lord, Lord O’Neill, put it graphically when he said that the EAW has enabled us to get rid of the bad guys we do not want and get hold of those we do. The EAW has enabled the UK to surrender more than 10,000 individuals accused or convicted of a criminal offence to other member states, including those accused or convicted of murder, child sexual offences, terrorism or, as the noble Baroness, Lady Kennedy, mentioned, human trafficking. During the same period, the EAW has been used to surrender more than 1,400 individuals back to the UK.
As the committee noted, we are a net contributor to the EAW system: for every one person arrested on a UK-issued EAW, the UK arrests eight on EAWs issued by other member states, so in the balance of trade of those under arrest, we are net exporters. For all these reasons, agreeing effective extradition arrangements will be an important part of negotiations and of mutual interest to both the UK and member states.
Perhaps I may touch for a moment on transitional arrangements, which the committee also raised in its report and were referred to in our debate. The Prime Minister was clear in her Florence speech that an implementation period should be based on the existing structure of EU rules and regulations, and that the UK would take part in existing security measures during such a period. The Prime Minister was also clear that we may start off with the CJEU still governing the rules we are part of for that period. We therefore do not anticipate the cliff edge that the committee was keen we should avoid and which was touched on during our debate. We hope that we do not see the ghost of Banquo, though I am sure he would be familiar with the panelled rooms of this stone building. That commitment was confirmed by the Minister for Immigration, Nick Hurd, when he gave evidence to the Home Affairs Select Committee on 23 January. As I said a moment ago, it is in the interest both of the UK and the EU to agree the precise terms of the implementation period as quickly as possible, and we are confident that we will come to an agreement on this in March.
On the case of O’Connor, I am somewhat limited in what I can say as this is a live case. We are monitoring what is going on and we cannot speculate on the outcome. My understanding is that the Irish Supreme Court has yet to formally refer the matter to the CJEU or, indeed, to determine what the question should be. We will continue to work with our counterparts in the EU to ensure that those who have fled justice in the UK return to face it.
A number of noble Lords mentioned the time it took to negotiate the extradition agreement between Norway and Iceland and the EU. With respect, we are starting from a slightly different position, in that they started from a position of total divergence whereas we are starting, in this case, from a position of total alignment. The starting point for negotiations will be different from that of either of those countries: we start, as I said, from a position of total alignment since we operate the same EU tool, the EAW, and that was not the case for Norway or Iceland.
The noble Baroness, Lady Kennedy, asked whether we would be able to get an agreement on this without accepting the CJEU as ultimate arbiter. I have made it clear that we do not think that that is acceptable and I outlined other scenarios where that was not the case. Indeed, the EU has extradition agreements with a range of third countries, as noted in the committee’s report. None of those involves the CJEU having jurisdiction in those third countries, nor is there another common court between the parties, although I note that in our debate there was a very strong view that there should be some judicial oversight over how disputes are resolved.
Where agreements between the UK and EU give rise to rights or obligations for individuals—the case raised by the noble Baroness, Lady Ludford—those rights or obligations will be enforced by the courts in the UK, and ultimately by the UK Supreme Court. Individuals operating within the EU should similarly be provided with means to enforce their rights or obligations through the courts of the remaining 27 member states, with interpretation by the CJEU where that is appropriate. On facts and figures, table 1 in paragraph 10 has some key statistics, but if the noble Earl, Lord Kinnoull, wants more granularity I would be more than happy to provide that for him.
There was a comment about the Charter of Fundamental Rights. The noble Baroness, Lady Ludford, will have heard what my noble friend Lord Callanan said in winding up the debate on the withdrawal Bill last week. Our intention has always been that, in itself, not incorporating the charter into UK law should not affect the substantive rights that individuals already have, because the charter was never the source of those rights.
I should emphasise that the Government are committed to maintaining and strengthening the co-operation that keeps all European citizens safe, a point that noble Lords have made, and that the desire to do what is necessary to keep our people safe is not one-sided. My ministerial colleagues have spoken to their counterparts in other EU countries and I am reassured to hear that there is a shared understanding of the importance of effective, ongoing co-operation. For our part, we have made clear that the UK’s responsibilities, as a good neighbour, for the security of European citizens as well as our own, will remain on leaving the EU. We will be looking for a future partnership that ensures that those responsibilities can be met.
We recognise the challenges around negotiating a new relationship, including those around designing a new mechanism for resolving disputes between the UK and the EU. The Government are grateful to the committee for its report and its observations about the complexities involved in negotiating new arrangements. We are committed to addressing them and ensuring that we can continue to uphold justice in the UK and across the EU. I reiterate my thanks to the noble Lord, Lord Jay, and to all noble Lords who have taken part in this afternoon’s debate.
Criminal Justice (European Investigation Order) Regulations 2017
Baroness Ludford Excerpts(7 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Ludford (LD)
My Lords, I welcome this short debate. The European investigation order is a valuable instrument. Therefore, I am pleased that the Government are implementing it. I was involved with it when I was a Member of the European Parliament. I was the lead MEP for the liberal group and involved in all the co-decision negotiations with the Council in finalising it. It has been a source of regret to me and, I think, to my political colleagues in the European Parliament that successive British Governments have not fully taken part in the fair trial rights side of the EU programme alongside enforcement measures such as the European arrest warrant and the European investigation order—that partly relates to what has just been said.
I am a patron of Fair Trials International and a huge admirer of its work. The EIO is a sort of European arrest warrant for evidence. A fair criticism of the European arrest warrant is that it was occasionally used as a fishing expedition. It was meant to be used only from the perspective of charge and prosecution.
Baroness Ludford
I do not think that that is in the EAW framework decision, but it was much discussed in the Julian Assange case with Sweden. Certainly, you had to be on the brink of those further stages of charge and prosecution—not when you just wanted to interview someone and were trying to collect evidence. I hope that the EIO will take the weight off the European arrest warrant and stop it being misused. That is all good. The EIO is for evidence; the search is for interception. It is much more efficient for police and prosecutors than relying on the rather clunky EU mutual legal assistance convention of 2000, which has never really worked. As the committee points out, it would be a very retrograde step to fall back on the MLA convention, just as having to fall back on bilateral extradition agreements under the aegis of the Council of Europe will be an alarmingly backward step if the UK is unable to stay in the European arrest warrant if we Brexit. So, like the noble Lord, Lord Rosser, I echo the question put by the committee about what concrete arrangements the Government propose to continue the efficiency and effectiveness that the EIO will deliver, as the European arrest warrant already does. In one of the committee’s reports, the Minister apparently said that,
“he hoped that close cooperation between Member States on security matters would continue, but the precise nature of future relations would be the subject of negotiation”.
Many of us are really quite eager to know how the Government propose to continue this essential cross-border police and prosecution co-operation.
Lord Young of Cookham
It goes back to what the EIO aims to do. Basically, it is a judicial co-operation mechanism for providing assistance in investigating and prosecuting criminal offences and it replaces the existing scheme; that is, the existing EU and Council of Europe mutual legal assistance measures. It does this through introducing mutual recognition of other member states’ judicial decisions. As my noble friend said, it standardises the process for making requests by using a template form rather than a letter of request, and it specifies time limits for responding. All the evidence shows that it is already working quite well. A number of requests have been made and processed, and it is proving to be a much more efficient system than the one it replaces. As more member states sign up to the EIO, we believe that it will be an improvement on the previous mutual legal assistance scheme.
I am not sure that I have fully understood the point made by my noble friend, in which case I shall read it again in Hansard. I will drop him a line and hope to give him and the noble Baroness an assurance. As I have just said, the EIO is a mutual legal assistance measure. An individual can give a voluntary statement under an EIO or could be compelled to come to court in the UK in the same way as in domestic proceedings. I hope that that gives my noble friend the answer he was seeking.
Baroness Ludford
Perhaps I might invite the Minister to agree that one thing that would help in the situation of both the EIO and the EAW would be if the person concerned had legal advice and representation at both ends of the system. One of the regrets that I referred to in general terms was that the UK has not opted in to the directive on the right to a lawyer. That was a great shame, notwithstanding the controversies about legal aid. When the measure was agreed a few years ago, the gold standard was access to a lawyer. Had we opted in—hope springs eternal and there is still time—that would have motivated other member states to make sure that they came up to the mark, because a person who has legal advice and representation is going to be in a much stronger position to contest any unfair treatment.
It is a great pity that the UK, with its strengths in the rule of law and justice, has not opted in, apart from to the directive on interpretation and translation—which, contrary to the remark made by the Advocate-General for Scotland last week, is a directive, not a regulation. I was the rapporteur on it. Unfortunately, the UK did not choose to take part in the other ones in the so-called Stockholm programme of defence rights, so we have an unbalanced participation. I think that it would give everyone more confidence if the UK had a more balanced participation. I suppose that I am only asking the Minister to accept my remarks.
Lord Young of Cookham
I think I will respond to those remarks rather than accept them. The noble Baroness prefaced her remarks by saying “notwithstanding any arguments about legal aid”, but I think that that is probably exactly the issue, in that the proposition she has just put forward would mean extending legal aid into an area where it does not exist at the moment. That takes us into a broader argument about legal aid. Perhaps I might offer to write to the noble Baroness if I have misunderstood her comments.
Brexit and the EU Budget (EUC Report)
Baroness Ludford Excerpts(7 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Ludford (LD)
My Lords, I too thank the sub-committee under the chairmanship of my noble friend Lady Falkner for a very interesting report. Before I go any further, I should draw attention to my interests declared in the register. I particularly agree with the contributions of the noble Lord, Lord Davies of Stamford, my noble friend Lord Thomas of Gresford, and the noble Lord, Lord Hannay, and with much of what my noble friend Lord Shutt said. I am sure that the sub-committee will be much the poorer for his contributions sadly having to come to an end.
We mainly all agree that an orderly withdrawal arrangement is needed, free of what the noble Lord, Lord Haskins, called irresponsible game playing. I was glad that the noble Lord, Lord Taylor of Warwick, stressed that these negotiations were more important than a game show. I was getting a bit nervous with all his references to people such as Noel Edmonds.
I am among those who are not really persuaded by the report’s conclusions—indeed I find them quite puzzling in the light of the weight of the evidence from legal witnesses, and the clear reading of Article 50 of the treaty and Article 70 of the Vienna convention. I find it quite awkward to disagree with the very distinguished former legal adviser to the EU Select Committee whose period of employment ended on the very day that the report was published, so there was no opportunity, even in private, to discuss it with him. I feel rather uncomfortable commenting on that legal advice. I do not know whether there is any precedent for the legal advice of an official being published in a report. I am not sure that it is one I would recommend to be followed.
I found myself much more persuaded by the evidence on the legal situation from Professor Tridimas and Rhodri Thompson QC than by that of Dr Sánchez-Barrueco, and it is surprising that the advice of our former legal adviser does not reflect what I regard as the balance of that evidence.
Of course, the practical situation is that it is not about what the UK might agree to pay for future post-Brexit access. The issue is about the liability for obligations assumed while we were still a member. I find the sort of everyday examples that I can relate to include those invoked by Rhodri Thompson QC that if you have a 10-year lease and give notice to leave the premises after six months you may well still be liable for the full term of the lease. Indeed, in view of my current domestic travails with my telecoms supplier, which I will not bore noble Lords with, it is common for telecoms contracts to commit one to paying money if you want to leave a contract in less than the 12 or 24 months that you signed up to. So that is the kind of situation that we are in. The obligations under the EU treaty that the UK assumed as a member state do not disappear when we decide to denounce that treaty. That is a fairly common-sense conclusion.
The advice from the former legal adviser drew attention to the incontestable fact that Article 50 sets out the provisions on withdrawal from the EU. The rules on withdrawing from a treaty in Article 70 apply only if the treaty in question does not have any provisions on withdrawal. But withdrawal is not the issue: Article 50 clearly governs the process of withdrawal from the EU. What it is silent on is the assumption of rights and obligations, and their discharge, assumed when one was a member of that treaty. So the conclusion of the former legal adviser, that Article 50 does not need to be interpreted in the light of the Vienna convention but on its terms alone, is the one I find the most difficult to accept. It is precisely because Article 50 is silent on the question on the ongoing liabilities that I believe that, if we were to withdraw without an agreement, Article 70 of the Vienna convention would kick in to take up the slack. If we have, as I very much hope we will, an orderly withdrawal agreement, we are all expecting that that would cover the question of negotiated liabilities. I am certainly not desiring that this country should pay a penny more than is reasonable as a result of negotiations undertaken with good will on all sides. There is no reason for us to be overgenerous, but to undertake that in the spirit of all lively negotiations. Of course, there are plenty of other calls on money in this country.
The very fact that there is no express provision in Article 50 on picking up the existing rights and obligations means that Article 70 of the Vienna convention comes into play, because there are no rules in Article 50 to prevail over Article 70 of the Vienna convention. So Article 50 has to be interpreted consistently with Article 70 of the Vienna convention, because Article 50 does not dictate any specific solution.
The question of jurisdiction and enforcement is another matter. As we know, under EU law, the interpretation of EU law is ultimately a matter for the Court of Justice, and the 27 member states will be bound by Article 36 of the TFEU, which states:
“Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein”—
the Court of Justice of the European Union. The EU institutions, in the draft Council guidelines and the European Parliament resolution of yesterday, are making it very clear that EU enforcement mechanisms apply. It is going to be a very interesting discussion on how you work all that out once the UK is no longer a member state, but we can all see that there will be a very good argument why the Court of Justice may well come into play in the negotiation of a transitional agreement and a future relations treaty.
I am reminded of the fact that the Brexit White Paper not only recognised the established position of the CJEU as the EU’s,
“ultimate arbiter on matters of EU law”,
but also committed to the fact that the UK,
“will of course continue to honour our international commitments and follow international law”.
Whether it ends as a matter of enforcement under EU law by the CJEU or through some international means and tribunal is above my pay grade, but I should have thought that, one way or another, the question of jurisdiction and enforcement will be rather closer to the CJEU than any other solution. The Government will want that jurisdiction enforcement to be worked out and not left hanging in the air, not least because, as all the legal witnesses to the committee stressed, there would be a significant price to pay politically were the UK to refuse to honour obligations under EU law that the CJEU were to find that we owed. It would not leave us in a very comfortable place, if we refused to honour those obligations. There would also be significant international implications if we were not prepared to comply with our obligations on exit from the EU. It would not augur well for all these other international treaties that are being mooted.
I am not sure that it is terribly helpful to the Government to be told that they do not need to pay anything at this part of our process of exit from the EU. I would love to have been a fly on the wall when the Government read this report. Although we have heard various statements in the public domain about how, “Of course, we do not owe a penny—that is absolutely the case”, I am sure that in private they know that that is a long way from the real world and that negotiations will have to converge on some kind of honourable solution all round. The noble Lord, Lord Jay of Ewelme, reminded us that the press is not going to be a pretty sight when told the sum that the UK does agree, and the Government would do well to prepare the press for that day, not for any kind of overpayment but for whatever is agreed in the negotiations to achieve other negotiating objectives over the next few years. In that context, I look forward to hearing how the Government interpret the report as a guide to their future conduct.
European Union Referendum: Young Voters
Baroness Ludford Excerpts(8 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Ludford (LD)
My Lords, I join all noble Lords in warmly congratulating my noble friend Lord Roberts on introducing this very important debate. He reminded us of the fight for women’s suffrage and for the vote in post-apartheid South Africa. Against that background, it is all the sadder that so many people are missing from the electoral roll and that we have such poor turnouts. As my noble friend said, only 43% of 18 to 24 year-olds voted in the general election last year, and according to Eurobarometer, apparently the UK is ranked 20th out of 20 European countries for voter turnout among those aged up to 30. That is absolutely shameful.
I, and I believe my party, believe that votes at 16 would help to solve the problem by hooking kids in while they are still at school and being wooed by politicians from the age of 14. I say gently to the noble Baroness, Lady McDonagh, that unfortunately we did not secure votes at 16 for the referendum due, I am afraid, to Labour votes missing at both ends of this building. Also, as my noble friend Lord Rennard just pointed out, unfortunately my noble friend Lord Tyler’s Motion against the premature implementation of individual electoral registration was lost by only 11 votes.
We know that universities have done good work and the Bite the Ballot #TurnUp voter registration week is an excellent initiative. However, I have just been checking the pages about registering to vote on GOV.UK, and the Government need to audit those pages to ensure that they are as modern, clear and helpful as possible and that the guidance set out is aligned with the Electoral Commission and other websites. That is certainly not the case at present as regards the need for a national insurance number. A letter from the Minister, Nick Boles, to further education and sixth-form colleges in April stated that students,
“will need to provide their National Insurance number”,
whereas the GOV.UK website states that people “may” need their national insurance number, while the advice circulated by Bite the Ballot is that people do not need their national insurance number.
I found on the website of the organisation Crisis a helpful explanation that if you do not know your national insurance number, you may have to contact your electoral registration office, although even then the “may” is still there. Can the Government rapidly check and correct the GOV.UK website within the next two weeks to ensure that everything is crystal clear? My noble friend Lord Rennard referred to Bite the Ballot’s report called Getting the ‘Missing Millions’ on to the Electoral Register, with numerous proposals on the national insurance issue and other voter registration reforms. We really need to come into the 21st century.
The guidance on students being able to register at two addresses is also slightly obscure. It is on a webpage on GOV.UK entitled “The electoral register and the ‘open register’”. I do not think anyone would think to click on that link to find out when you can register in more than one place. Why would you look on a webpage that was about the open register and the closed register to find that guidance? Somebody needs to be the mystery shopper to check this out very quickly indeed.
The organisation Crisis has also produced guidance on the ability to register even if someone does not have a fixed address, is in temporary accommodation or does not have a permanent address. On a quick look I did not find that guidance on either the Electoral Commission or the GOV.UK websites.
In addition, would it not be helpful if citizens could request a postal vote simultaneously with their registration to vote? They would not have to wait to go through that further process. There are a lot of things we could do to streamline and make more accessible this voter registration crisis, particularly for young people who are not in the pen and quill age—I partly straddle both, if I may say that to the noble Lord, Lord Kerr. They expect to do everything online and we have to facilitate the ease of that process.
Reference has already been made by the noble Lord, Lord Lexden, and picked up by my noble friend Lord Rennard, about how we need to extend the proactive work, which does not seem to be on the agenda of the Electoral Commission in England and Wales, on the initiatives in schools in particular. I am not the expert that my noble friend Lord Rennard, is, but the Electoral Commission in England and Wales is mainly devolved to local authorities. If we are to get that done it has to be through local authorities in England and Wales. Even if it is not in time for 7 June, although I think there is still some time, there needs to be a complete audit and check of the ease of voter registration. Suggestions include prompts when paying council tax or applying for driving licences, and a national website so that people can check their registration status and retrieve their national insurance number online. None of this is rocket science. I ask the Minister to do a rapid check on whether some of this could be implemented very quickly.
EU: Balance of Competences Review
Baroness Ludford Excerpts(9 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Ludford (LD)
My Lords, I warmly thank my noble friend Lady Falkner for initiating this debate. I declare an interest as a former Member of the European Parliament and now a pensioner of the said institution.
I was one of those who was a bit suspicious of the balance of competences review and its motives—not as much as some of my political colleagues, but I was mildly sceptical as to its value. I am happy to admit that I have been proved wrong, and I am in danger, indeed, of having the zeal of the converted.
I was already somewhat reassured by the statement in the Command Paper that launched the review in 2012 that it would not be asked,
“to look at alternative models for Britain’s overall relationship with the EU”.
That somewhat allayed one’s fears about it being the basis for a renegotiation exercise, but I do think that, in fact, many of its aims have been fulfilled. The objective was,
“a thorough and analytical piece of work … to take stock of the impact of the EU on our country … to … allow everyone, those in Government, in Parliament and, most importantly, the British people themselves”—
I shall come back to that—
“a far better understanding of an important part of the governance of the UK … ensure that our national debate is grounded in knowledge of the facts … and develop this country’s policies in relation to the EU”.
Like my noble friend Lady Falkner, I have taken an interest in the valuable inquiry by the committee of the noble Lord, Lord Boswell. I shall quote the evidence from Dr Thomas Horsley from Liverpool University’s European law unit, which gives a very positive view.
“I think that overall we would summarise our assessment as positive of the review. We would say that as a whole the individual reports are an impressive technical exercise in attempting to understand the current balance of competences across a range of fields, and to try to collate in a fair, synthesised and balanced manner the range of responses that were received as the evidence base. In result, the exercise has provided a very rich, unique resource that we suggest is greater than the sum of its parts”.
I think that that is a great tribute to the Foreign and Commonwealth Office and the Cabinet Office and, indeed, to my noble friend Lord Wallace of Saltaire and other colleagues in Government, including the Europe Minister, David Lidington, who I am very pleased has kept his post throughout these five years.
The review is most certainly not a whitewash. Every one of the individual 32 reports has criticisms of aspects of EU policymaking. As those Liverpool academics said, the reports are a faithful synthesis of the full range of evidence and there is no sign of an attempt to prejudge conclusions and select evidence to fit those prejudged conclusions. So it has integrity as an intellectual exercise and it has certainly provoked debate.
We have seen more businesses in the last couple of years prepared to speak out on EU affairs. They have been mainly positive about the EU but ready to complain or criticise, where they saw the need to do so. It is almost as if the review has liberated people to talk, without it being politically loaded, about what the EU does and does not do well. Now we need to reflect on how the engagement with stakeholders at home and in other member states will be continued and built on, in particular to develop intelligent, well founded ideas for reform of the EU and refreshment of the way that it operates.
We learnt from the Europe Minister, Mr Lidington, yesterday that the paper which the UK submitted on the development of the digital single market, on the basis of the balance of competences review, was very well received in Brussels. His officials mentioned energy union as another topic on which the work done in the review could contribute reflections of value.
It is true that we need to wonder how we can move that interest from organisations in the private and public sectors and other Governments into the more popular public domain. I have no brilliant ideas on how to do that, but some of the businesses and NGOs that participated in the review are helping to disseminate their experience among their memberships. As has already been commented, media coverage has been relatively limited—but then the media on the whole only ever want to report sensationally bad things about the EU. The danger is that the value of the review will get overshadowed or squeezed out by the sloganeering of a possible referendum campaign, which would be a great pity.
I will mention a few of the themes that I felt were valuable in the review. The launch Command Paper in 2012 mentioned that,
“it is … important that the EU addresses the legitimate demands for greater accountability, transparency, efficiency and probity”.
In the light of the last few years, the contrast that the paper made between the EU and,
“the roots that sustain national democracies”,
may have been a bit complacent about the legitimacy of, for instance, Westminster. However, we need to look at questions of the EU’s legitimacy. Many people who do not really understand how their local council or town hall works, or how Westminster works, do not mind too much because they still think those are within their sphere of legitimacy. Unfortunately, the EU does not come into that category so it has to work even harder.
Like the noble Lord, Lord Balfe, I do not accept that the EU is not democratic, because the European Parliament is directly elected, but for those legitimacy reasons we also need to bring in fully the national Parliaments. I was extremely disappointed when the European Commission did not respond in the right spirit to the yellow card put up by, I think, 11 national Parliaments to the European public prosecutor proposal. That was very arrogant of the Commission and extremely regrettable. Perhaps under the new Commission, that sort of arrogance will not be repeated.
The balance of competences review was particularly valuable in its discussion of subsidiarity and proportionality, and in its coverage of impact assessments and how we get better lines of accountability. Some other things were not covered very well, as I think was commented on. Enhanced co-operation, flexibility and inter-institutional relations, which were mentioned by the Minister yesterday, were not really covered and could have done with some attention. The paper on fundamental rights was very interesting, with a useful discussion on the value in particular of EU accession to the European Convention on Human Rights. That would mean that you would be able to take the EU to court when it tramples over rights.
When I was preparing for this debate and thinking of the legitimacy of the EU, one thing I read was the news that small cider and perry makers might have their excise duty break removed because it is seen as a contravention of state aid. I thought, “Must this really be the focus of a Brussels crackdown?”. If we really do not want to alienate people, given their attachment to the workings of Brussels, that does not seem to be going about things the right way.
I am running out of time so I cannot say anything about justice and home affairs, which is very close to my heart. I finish by mentioning that I felt that this report is very useful as a contribution to the ideas on reform, but it is a somewhat technocratic exercise. It is not the whole of the debate on the value of our membership of the EU. There is the question of how we prepare the EU for the pressing challenges to deliver prosperity and security for our 500 million citizens, and the influence that Europe’s voice can have in the world. The answer to that challenge inevitably goes beyond, and wider than, the balance of competences exercise. However, in its own right it is extremely useful.
Israel and Palestine
Baroness Ludford Excerpts(9 years, 9 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Ludford (LD)
My Lords, the noble Lord, Lord Luce, said that settlements were the biggest impediment to peace. I do not agree. However, that does not mean that I approve of settlement-building—far from it. I am a declared friend of Israel, although certainly not a fan of the present Government. I believe that occupation is toxic to Israeli polity and society, as well as miserable for Palestinians. However, the lack of progress in peace negotiations cannot be blamed solely on Israel. As the noble Lord, Lord Davies, said, the Palestinians have rejected many opportunities.
I was unable to participate in the debate on 29 January. However, reading it afterwards, I was struck by the number of speakers who talked about how unilateral recognition of a state of Palestine would send a message or a signal, or be a symbol—of what I was not quite clear. A sustainable long-term settlement can be achieved only through bilateral negotiations involving difficult compromises on both sides. Unilateral recognition of Palestine is a cul-de-sac, not a catalyst for progress. It might satisfy an urge among some of us for “something to be done” but it does not achieve movement.
Israel set no preconditions for the resumption of direct talks in 2013. It is broadly assumed that it would give up all but about 3% of the West Bank through land swaps. Israel needs recognition and security, and the confidence of having a predominantly Jewish, democratic state. Former UK chief negotiator Dennis Ross recently wrote:
“It’s fair to ask the Israelis to accept the basic elements that make peace possible—1967 lines as well as land swaps and settlement building limited to the blocks. But isn’t it time to demand the equivalent from the Palestinians on two states for two peoples, and on Israeli security? Isn’t it time to ask the Palestinians to respond to proposals and accept resolutions that address Israeli needs and not just their own?”.
I agree with those remarks.