Brexit: UK-EU Security (EUC Report)

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 7th February 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, that we shall be leaving the EU must now be a given and although personally I was a remainer, I intend to speak and vote in the forthcoming debate, albeit with a heavy heart, in favour of authorising the proposed Article 50 notification. It is in that context that we now need to consider the vital issues that arise as to our future co-operation with Europe in the field of security and justice. On this I, too, pay tribute to the work of the noble Baroness, Lady Prashar, and her committee in producing this excellent and perceptive report.

I put my name down for this debate only late yesterday, when I noticed that there was close to a dearth of lawyers due to speak. Nor was there any member of the Lords ad hoc committee under the chairmanship of the noble Lord, Lord Inglewood, which two years ago reported on our extradition law and practice. It is principally upon that matter that I will concentrate today, and more particularly on the European arrest warrant which in that extradition committee we explored in the greatest detail—the noble Baroness, Lady Ludford, was one of many expert witnesses before us. In doing so, I should perhaps say that in my judicial capacity I have been involved over the years in a good number of extradition cases, including a number with the noble and learned Lord, Lord Hope of Craighead, who is almost in the Chamber. Latterly, they included that of Mr Assange—not that we have yet managed to extradite him.

To my mind, based on that experience it is really quite difficult to exaggerate the huge benefit of the EAW to the goal of attaining justice with regard to cross-border crime and so forth, and avoiding safe havens for criminals across Europe. Undoubtedly, it has promoted speedier, cheaper, more streamlined and, I would argue, fairer processes overall than previously existed. The DPP has described the EAW as,

“three times faster and four times less expensive”,

than the alternatives. Let us consider some basic statistics. Before 2004, when the scheme came into force, fewer than 60 people a year were extradited from the United Kingdom. Since 2004 more than 7,000 individuals, over 95% of them foreign nationals, who were either accused or already convicted of criminal offences, have been extradited from the UK to other member states, and more than 1,000 have been extradited to the United Kingdom from other member states to face justice here.

Following the attempted second Tube bombings on 21 July 2007 we managed to extradite one of those involved from Italy back here, under a European arrest warrant, in just 56 days. We should contrast that with the 10 years it took to extradite one of those convicted of the terrorist bombings in Paris from the UK to France under previous arrangements. Notice, too, Operation Captura between Spain and the UK, which again is illustrative: through the scheme it has, since 2006, procured 61 wanted criminals who were arrested in Spain and returned here. Paragraphs 126 to 128 of the report emphasise the huge value of the European arrest warrant in extraditions, as described by those principally responsible for criminal justice in the UK, and the deficiencies of the pre-existing system. As one noble Lord has already observed during the debate, that system was based on the Council of Europe’s 1957 convention on extradition.

Manifestly, Brexit notwithstanding, it is imperative that we maintain the benefits of the EAW scheme—but how do we achieve that consistent with the Government’s avowed intention to sever our link with the ECJ, nowadays called the CJEU—the Court of Justice of the European Union? Oddly, our submission to the jurisdiction of that court seems to be almost doctrinally central to the Government’s policy in implementing Brexit. As part of regaining our sovereignty, the Government appear to regard it as a core principle that in future our laws will be made in Westminster, not Brussels, and that any legal issues arising will be decided not by the ECJ in Luxembourg but by our courts.

It might be thought that as an erstwhile senior British judge, albeit now five years retired, I would enthusiastically welcome such a change: a restoration of final authority on legal disputes to the Supreme Court—although here, unlike in the States, it is always subject to Parliament’s legislative power to override the court’s decision. Indeed, it is, in some ways, satisfying that we shall no longer be bound by rulings of the ECJ. On occasion, they are somewhat expansive rulings, open to accusations of judicial overreach in pursuit of an agenda of ever-closer union. Certainly, I am perfectly happy to think that, with regard to vast swathes of our law, we shall no longer be required to refer and defer to Luxembourg on any uncertainties as to the correct construction and application of EU provisions on VAT law, procurement law, planning law, environmental law, employment rights legislation, equality legislation, and on our attempts on public interest grounds to remove EU citizens who have committed a criminal offence here.

All these matters and, indeed, many more, are currently subject to Luxembourg rulings and so to innumerable EU-based regulatory schemes which, come Brexit and the so-called great repeal Bill, we shall either have to abandon or, more probably, incorporate in existing or amended form into domestic law. Inevitably, if we keep them, it will be as they have evolved and developed in the light of past ECJ judgments—but as for the future, they will presumably be subject only to rulings of our own courts, any subsequent Luxembourg decisions in point being merely persuasive rather than binding in effect.

That will be the general position. But—here I return to the European arrest warrant and various of the other 35 measures relating to police and judicial co-operation in criminal justice which we opted back into in 2013 of the 130 such third-pillar measures we opted out of post Lisbon—severing our link to the ECJ need not and should not be the position in relation to many of those measures, particularly those covered in the report: not only the EAW but, for example, Europol, Eurojust and various data-sharing and information-sharing arrangements. In this critical area of security and criminal justice, it is essential that the Government recognise the need to continue accepting the jurisdiction of the ECJ in this relatively narrow context.

That is the modest enough price to be paid for the huge benefits of operating—necessarily internationally—schemes to combat the ever-increasing tendency of criminals to operate and travel across borders. In this limited regard, I urge the Government to put aside their surely somewhat doctrinaire approach to the so-called recovery of sovereignty. Whatever supranational adjudicative tribunal we submit to, in this or any other area of international dispute, to that extent inevitably we are, if one chooses to look at it in this way, surrendering sovereignty. So what? It is for the greater good. The International Court of Justice and the European Court of Human Rights are just illustrations of this.

I know that the Government are hoping for some kind of bespoke supranational means of supervising the future operation of the EAW scheme, and no doubt of other such schemes that we have been discussing—but why on earth should the other 27 nations agree to this? Consider the suggested alternative to the EAW—the noble Lord, Lord Soley, has already touched on this—which Norway and Iceland had no alternative but to adopt because of course they are not member states. Paragraphs 129 to 133 of the report deal with this. After 13 years of negotiation, the agreement with Norway and Iceland is still not in force. In any event, it includes the objectionable option of a state party being allowed to refuse to extradite one of its own nationals. It also contains an exception for political offences. It may, in any event, require the non-EU state to be a member of Schengen. Finally, and in this event of course decisively, it would appear to require the non-EU state to submit to the ECJ jurisdiction.

In conclusion, this is an excellent report, which rightly suggests that we need desperately to retain the links that it deals with. It is fervently to be hoped that the Government will now digest the report thoroughly and reflect it fully when they come to determine their future negotiating position on these vital topics.