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

Lord Bates Excerpts

Monday 17th November 2014 Lords Chamber

Moved by

[Lord Bates]

That the draft regulations laid before the House on 3 November be approved, and to move to resolve that this House thereby endorses the Government’s formal application to rejoin 35 European Union Justice and Home Affairs measures.

Relevant documents: 13th Report (Session 2012-13) and 5th Report (Session 2013-14) from the European Union Committee, 12th Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument), 13th Report from the Secondary Legislation Scrutiny Committee, 1st Report from the Extradition Law Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates)]

My Lords, we return to a detailed European matter that, over the last 18 months, has become very familiar to many in this House. Indeed, this is the third time the House has debated this matter on a government Motion this year alone. I remind noble Lords of the background to this matter. Protocol 36 is the part of the Lisbon treaty which relates to the United Kingdom’s opt-out from those policing and criminal justice measures which were adopted before the Lisbon treaty came into force. The opt-out provisions are unique to the United Kingdom and were negotiated by the previous Administration.

Under the terms of Protocol 36, the United Kingdom had to decide before the end of May 2014 whether we wished to opt out of all those police and criminal justice measures, around 135 in all, which predate the Lisbon treaty. This opt-out had to be exercised en masse: we could not simply leave the measures that we did not like. In July last year this House endorsed the Government’s decision to exercise this opt-out and we have until 1 December to notify the Council which measures we would like to remain party to. However, this process must be completed well in advance of December. As a result of the final member state, Spain, not lifting its reserve on the deal we negotiated until 10 days ago, we are running short of time.

The Government have always been clear that, in exercising the UK’s opt-out, we wanted to remain part of a smaller number of measures which give our police and law enforcement agencies vital and practical help in the fight against crime. In July last year, this House endorsed 35 measures, set out in Command Paper 8671, which help our law enforcement agencies to tackle serious crime and keep this country safe. That package was the product of careful deliberation in this House and beyond. It follows consultation with the police, the Crown Prosecution Service, our security and intelligence agencies, the devolved Administrations, the Lord Advocate in Scotland, the Government of Gibraltar, victims’ groups and many more. It has been scrutinised by parliamentary committees in both Houses.

I pay tribute to the work carried out by the EU Committee of this House in scrutinising these matters and thank the Committee for its well considered and very detailed reports. I express my thanks to the noble Lords, Lord Hannay and Lord Boswell, and to the noble Baronesses, Lady Corston and Lady Prashar, for their leadership on this matter and for the guidance that they have provided to the House.

In July this year my noble friend Lord Taylor of Holbeach addressed this House with an update on the Government’s negotiations. He informed the House that good progress had been made in negotiations with the European Commission and other member states, and that we were close to reaching an in-principle agreement. My noble friend also informed the House that this matter had been discussed at the General Affairs Council in June but that some member states—Austria, Poland and Spain—had expressed technical reservations.

The Government published another Command Paper, 8897, which included the full list of measures included in the in-principle agreement discussed at the General Affairs Council, and impact assessments on each of those measures. The Government had hoped to be able to provide a further opportunity for Parliament to consider this matter before the Summer Recess, but the reservations expressed by other member states meant that it was not possible to do so. In September two of those member states lifted their reserves, and I am pleased to be able to inform the House that Spain, the remaining member state blocking the deal, formally lifted its reservation in Brussels 10 days ago.

The deal that the Government have negotiated in Europe is a very good one for the UK. The package of 35 measures that we would like to remain part of includes Europol, which does excellent work under its British director, Rob Wainwright, to tackle cross-border crimes. It includes Eurojust, which facilitates co-operation between our police and prosecutors and their European counterparts, and has proved instrumental in the prosecution of animal rights extremists here in the UK.

The package includes the second generation Schengen Information System or SIS II, which will further strengthen our ability to detect foreign criminals at the border, including individuals wanted in their own countries for serious crimes such as rape and murder. It also includes the Council decision on child pornography, which ensures that international co-operation to tackle this abhorrent crime is prioritised and that collective pressure is put on internet companies to tackle the disgusting crime of online child sex abuse wherever it takes place.

I shall say a little about the timing and format of the decision before the House today, as I know that it is a matter of interest to many. Now that the final reservation has been lifted on our deal, we must allow for discussion at the Council in Brussels before the month is out. That means that we do not have long to complete our domestic processes. This means we must be ready to ensure that we can transpose those measures that are not yet fully transposed in our domestic law on 1 December. It is therefore very important that this House completes the necessary legislative steps as soon as possible. The other place has already voted by a substantial majority to do so.

The Government propose to transpose the measures in the regulations using Section 2(2) of the European Communities Act 1972, but we do not have the vires to do so until 1 December. That is why we have chosen to bring forward an affirmative instrument to enable the House to see the regulations and debate the whole package of 35 measures that we will seek to rejoin. Many of those measures are inextricably bound together, and all of them are the result of a successful negotiation. That is why we are asking the House to consider them as a package and take a single decision on a single Motion.

The amendment of the noble Lord, Lord Boswell, questions the Government’s approach to this matter. I reassure him and other noble Lords that there is nothing nefarious about this approach. Noble Lords will of course be aware that almost all these measures, including the European arrest warrant, have already been endorsed by this House in the vote of July 2013. Unlike in the other place, it is open to us in this House to amend the normal Motion for approving affirmative instruments to make reference to the package of 35 measures that the Government will seek to rejoin. That is why the Government have amended the Motion to put beyond doubt that we see tonight’s debate and decision, just as we saw the debate and decision in the other place last week, as on the whole package of 35 measures that the Government will seek to rejoin in the national interest.

The decision before the House today is no different from the decision that was before the other place last week. The Home Secretary made clear throughout that debate that a vote to approve the Motion would be a vote in favour of the wider package of 35 measures. The House of Commons approved that Motion, and it remains the Government’s intention to rejoin the whole package of police and criminal justice measures, as it is in the national interest so to do. It is now time for this House to make the same decision.

I acknowledge the amendment to the Motion tabled by the noble Lord, Lord Boswell. I have explained why the Government have proceeded in the way that we have, and I believe that the Government have gone out of our way to provide opportunities for this House to consider this matter over the past year. I urge noble Lords to ensure that, when they consider the amendment, they focus on the proceedings in this House today. As I have explained, only a certain number of the 35 measures require transposing through the regulations before the House today.

Before I go further, I say how grateful I am for the work done in short order by the Secondary Legislation Scrutiny Committee of this House, led admirably and skilfully by the noble Lord, Lord Goodlad. It would be remiss of me not to mention the Joint Committee on Statutory Instruments and the helpful work that it has undertaken to assist the Government with their preparation of the SI that we are debating.

The regulations include the measures which provide for the freezing and confiscation of criminal assets and which will simplify the current processes significantly. The regulations also make provision to give effect to the European supervision order in England and Wales and in Northern Ireland. This allows British subjects to be bailed back to the UK, rather than spend months abroad awaiting trial.

Another measure covered by the regulations is the European Criminal Record Information System, or ECRIS. It also includes the Swedish initiative which simplifies the exchange of information and intelligence between law enforcement agencies, and the data protection measure protecting personal data transferred in the fight against crime. These all require transposing, and are covered in the regulations.

Another measure covered by the regulations provides for joint investigation teams between our police and their European counterparts. These allow our police to participate in cross-border operations such as Operation Birkhill, which saw five criminals sentenced to a total of 36 years’ imprisonment this summer for their involvement in the degrading trafficking of over 120 women from Hungary, the Czech Republic and Poland into the UK, or Operation Rico, which resulted in 110 arrests, mostly in the UK and Spain. We are also seeking to remain part of the prisoner transfer framework decision, which helps us to remove foreign criminals from British jails.

The remaining measures from our package which require transposing are the mutual recognition of financial penalties, which increases the effectiveness of financial sanctions by providing that they can be enforced across the EU, and a measure ensuring consistency with regard to trials in absentia, providing safeguards for dependants.

I am aware that the Secondary Legislation Scrutiny Committee considered these regulations last week and felt that more information was required on the policy objectives of these instruments. I hope that today’s debate has helped to clarify some of these matters. This is a hugely complex matter and the Government are limited by the guidance on the length of these documents. There are many lengthy documents, including two Command Papers referred to in the Explanatory Memoranda, that sit alongside the substantial evidence provided to the committees of this House and the other place that set this out in full. The Government will respond to the committee and will support any further scrutiny that they undertake.

I turn to the European arrest warrant. Noble Lords will be aware that the Government have legislated to reform the operation of the arrest warrant and increase the protections offered to British people and others who are wanted for extradition. The changes that we have made through the Anti-Social Behaviour, Crime and Policing Act mean that the arrest warrant which sits in our package of 35 measures is a better and safer arrest warrant than the one which operated over the last decade.

First, the Government have changed the law to ensure arrest warrants are refused for those suspected of minor offences. A British judge now considers whether the alleged offence and likely penalty are sufficient to make someone’s extradition proportionate. And a British judge considers whether there are measures less coercive than extradition that are available to foreign authorities.

Secondly, the Government have clarified the rules on dual criminality to ensure that an arrest warrant must be refused if all or part of the conduct for which a person is wanted took place in the UK and is not a criminal offence in this country. The National Crime Agency is now refusing arrest warrants where it is obvious that the dual criminality test has not been met. It has done so nearly 40 times since our reforms came into force in July.

Thirdly, the Government have changed the law to require that a decision to charge and a decision to try the person have been made by the requesting country before they can be extradited. That will help to prevent lengthy periods of pre-trial detention, which I know have been of concern to many noble Lords, as they have been to the Government. All these provisions have been made in UK law and came into effect earlier this year. All our reforms are based on existing law and practice in other member states and are already making an important difference to the operation of the arrest warrant.

The package of measures in which the arrest warrant sits is a set of vital tools for our police and law enforcement agencies. That package represents a good deal for the United Kingdom which will keep this country and its inhabitants safe, and bring criminals to justice. We must now vote to seal that deal and transpose those measures which require transposing. I beg to move.

Amendment to the Motion

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