European Union (Withdrawal) Bill

Debate between Baroness Ludford and Lord Judd

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Baroness Ludford]

I find myself in a similar position, in moving this amendment on behalf of myself, my noble friend Lord Paddick and the noble Lord, Lord Judd, to my noble friend Lord Wallace in moving his amendment on foreign and defence policy and external security. This is about internal security, where, in theory, we are rather further forward in designing the wiring diagrams that the noble Lord, Lord Kerr, talked about.

In her speech at the Munich Security Conference, the Prime Minister said a fair amount about these issues of extradition, Europol and data access and exchange. But there are a few little problems on the way. I very much look forward to hearing from the Minister some concrete answers about how a UK-EU security treaty will be taken forward and how it will address some of the problems identified so far. One concerns extradition. The Minister will be aware that in article 168 of the draft withdrawal agreement there is a facility allowing that the EU,

“in respect of any of its Member States which have raised reasons related to its fundamental structures, may declare that, during the transition period, that Member State will not surrender its nationals pursuant to”,

the European arrest warrant framework decision, and then the UK could declare similarly that it will not surrender its nationals.

I have to say that when Ministers from the Ministry of Justice and DExEU came to the EU Justice Sub-Committee four weeks ago, they did not appear to know what this article meant. It meant that some countries would not be able to extradite or surrender their nationals to the UK because they would have to change their constitutions. The one we all know about is Germany, which changed its constitution to be able to extradite its nationals to a fellow EU state under the European arrest warrant, but that did not apply to non-EU states. One reason why the surrender agreement with Norway is still not in force 17 years after negotiations began is that I understand there are 88 pages of declarations and notifications surrounding it, a lot of which will be to do with non-extradition of nationals. That would be a very serious omission from an extradition agreement.

Do the Government know which member states have already indicated that, for constitutional reasons, they would refuse to extradite their nationals to us or would find it impossible or politically difficult to change their constitutions, which in some cases might mean a referendum—perhaps no Governments like referenda—either during the transition or as part of the future relationship? What is the extent of that problem? If we are not going to be able to rely on the European arrest warrant, what is the situation in terms of falling back on bilateral agreements or the 1957 Council of Europe convention? How many member states have maintained in their national law the provisions for extradition outside the European arrest warrant and would they be willing to bring things back in just for us?

On Europol, are we looking at something like the Denmark model? Denmark has an opt out from all justice and home affairs measures, even though it is an EU member state and has no option to opt in on a case-by-case basis, so it is a third country for the purposes of Europol, with no decision-making powers and no access to the Europol database. Do the Government seriously expect to do better than Denmark on participation in Europol?

On enforcement and dispute resolution, is it conceivable that it would not be a requirement of a future UK-EU extradition arrangement for the UK to take account of CJEU case law and charter rights post Brexit? For instance, what is the Government’s analysis of the Irish court’s refusal to extradite to the UK and make a reference to the CJEU because of concerns about lower protections here post Brexit? These difficulties are not just going to arise after next March: they are arising already because of fears that our safeguards and protections are not high enough. I am sure that the Government are extremely grateful that they are being pushed to take these matters into account by this Chamber as well as by the European Council guidelines. Three months ago, the European Commission made a presentation of the main issues affecting police and judicial co-operation with the UK after Brexit. Two very pertinent factors were, first:

“Respect for fundamental rights, essentially equivalent data protection standards”,


and, secondly:

“Strength of enforcement & dispute settlement mechanisms”.


Those similar factors were stressed in the European Council guidelines of 23 March.

Norway, Switzerland and Iceland must not only make contributions to the EU budget to participate in Schengen laws and policies but also accept the supremacy of the CJEU over their national courts in Schengen matters. How do the Government intend to maintain access to one of the most important databases, the Schengen Information System—at the moment, we have access for the policing side though not for immigration—if they neither contribute to the budget nor accept the supremacy of the CJEU? There is no precedent for a non-EU, non-Schengen country having access to the SIS. Do the Government believe that they can, none the less, manage to gain such access? In her Munich speech, the Prime Minister said that,

“when participating in EU agencies the UK will respect the remit of the European Court of Justice”.

However, in the very next sentence, she said that,

“a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”.

That rather seemed to undermine respecting the remit of the ECJ. So which is it? Are we going to respect the remit of the ECJ or insist on our own sovereign legal order? I assume it cannot be both.

On the exchange of data, the Government have not, to my knowledge, confirmed that they will seek an adequacy decision from the Commission under the GDPR. They talked in the partnership paper last August about,

“building on the existing adequacy model”,

as if we could do better, and then the Prime Minister referred in the Munich speech to a “bespoke arrangement”—a term we have become quite familiar with. Would the Government not find it helpful to accept the retention of the Charter of Fundamental Rights, which we have tried to assist in today, when they try to demonstrate that they are upholding high data protection standards?

One of the issues, to which we have referred several times in this Chamber, is that our data processing for national security purposes will come under the spotlight in a way that does not happen while we are an EU member state, because national security is outside the competence of the EU. However, once we are outside the purview of the EU, our Investigatory Powers Act and other provisions—including quite possibly our co-operation with the United States on intelligence data matters—will be scrutinised as to whether they sufficiently safeguard privacy. The noble Lord, Lord Callanan, who is sitting next to the Minister who will reply, will know as much as I do from our experience from 2013 how difficult those issues can be. The Court of Justice struck down the safe harbour agreement because of worries about data transfers and data access by security agencies in the United States.

I hope I have given the noble Baroness the Minister a few small questions—or rather the noble Lord; I am sorry, it is difficult to keep up—which deserve quite meaty answers. There was no beef in the response on security and defence policy, but the Prime Minister herself has been much more explicit about the possible arrangements on internal security. I draw attention to the wording of the amendment, which includes showing how the measures,

“will not remove or diminish any rights of the individual in the criminal justice process”.

We participate in some procedural rights—not as many as some of us would like—but we need to uphold the rights of defendants and victims in the criminal justice process as well as to enable the police to catch criminals. I therefore look forward to learning from the Minister some quite explicit and specific details about how the UK-EU security treaty is advancing. I beg to move.

[Lord Judd]

My Lords, in warmly supporting this amendment, I will make only two points. First, crime is now global and international; trafficking, drugs and terrorism know no frontiers. When I was serving on the Home Affairs Committee and we looked into these matters, I was impressed by the way in which one person after another who had front-line operational responsibility said how important the European dimension was to them, how any diminution in the effectiveness of co-operation with Europe would not be in the interests of the protection of the British people, and that we needed our colleagues in Europe. When asked, “But what about those elements of Europe which might not be as well equipped professionally and in other ways to undertake the tasks as we regard ourselves as being?”, the answer was, on the whole, very firm. They said, “We had better help them to become as effective and not walk away from them because we shall need them”. This amendment is therefore very important and I commend it to the Minister.