Brexit: UK-EU Security (EUC Report)

Lord Davies of Stamford Excerpts

Tuesday 7th February 2017 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Hannay, particularly in a debate on Europe, on which he knows so much and has so much experience. But I thought on this occasion that he was rather more optimistic than I was about the chances of the Government coming to some satisfactory negotiation with our European partners. I find rather more convincing the analysis that we heard earlier from the noble Lord, Lord Condon, and the noble and learned Lord, Lord Brown.

I add my voice to those who have already paid tribute to the noble Baroness, Lady Prashar, and her committee. It is an excellent report. It is not too long, thank goodness, which most reports in this House are. It is very lucid and well written, as most reports in this House are. It is decisive, which is essential, and it has given rise to a very useful debate.

Well, here we go. Not a week goes by without us suddenly having a new insight into the costs of Brexit and the wanton damage and destruction that this process will bring about for our country if it goes very much further. There is pretty much unanimity in the House this evening on the matter of the costs of Brexit in this area. I think that in their analyses everyone has agreed in principle with the remarks of the noble Lord, Lord Condon, who said that anything less than the status quo will lead to a diminution of the security of all our citizens. That is an extremely serious matter. We are facing the prospect of actually diminishing our security. People’s lives will be at risk, and it is quite extraordinary that any responsible Government of an ancient country like ours should seriously contemplate measures which run that risk, but unfortunately that is the truth. I think it is a truth which has been accepted by all speakers in the debate, sad and difficult though it is for many to acknowledge it, but it is a consensus to which I add myself.

I have to say that I do not share the view of most colleagues who have spoken on both sides of the House that we should just despair of this. There has been a sense of hopelessness: “Well, perhaps the British public did not look at the facts, and maybe they did not have the facts they should have had at the time. But it is too late now, it has happened and we have to make the best of a very bad job”. I have never shared that view in politics. If one is heading for a disaster, if you can see that you are sailing into a storm, you change course. Moreover, if you believe in popular sovereignty, you must believe in the right of the people to change their mind if they wish to do so, and in the right of all of us to try to persuade them to change their mind if we think it is important that they should do so in our long-term national interests. I have no inhibitions about that.

I shall go briefly over the points that are most at stake in this case. I do not ask the House to accept my words. I shall rely entirely on the testimony offered to the committee, which is now before every Member of the House, and indeed the Government’s own statements on the subject. Let us take first the issue of Europol because we all know how important it is. The report states:

“Our witnesses were unequivocal in identifying the UK’s future relationship with Europol as a critical priority. They also made clear that an operational agreement with Europol akin to those that other third countries have negotiated would not be sufficient to meet the UK’s needs”.


That is a decisive and extremely well-thought-through conclusion. The report goes on:

“Achieving it, however, may be problematic”.


In other words, we have a great asset in Europol since it is both useful and vital, but the Government are putting the whole thing at risk and we may not get any kind of deal which even begins to substitute for the utility of the asset we currently have.

Let us move on to some of the other issues about information exchange between police officers, which is obviously very important. I refer to the Schengen information system, known as SIS II. It was described by the National Crime Agency as,

“an absolute game-changer for the UK … It is linked to the Police National Computer so that officers can stop a car with French plates and Hungarian nationals in it, undertake checks and find details of stolen property, wanted people, alerts and the like”.

It is clearly an enormously useful instrument for policing which we may be on the point of losing. I turn now to the Prüm measures, which ironically came into force only just last year:

“The Prm Decisions require Member States to allow the reciprocal searching of each other’s databases for DNA profiles (required in 15 minutes), Vehicle Registration Data (required in 10 seconds) and fingerprints (required in 24 hours)”.


Here again we risk taking away from the British police. I also refer to Professor Peers, who commented on SIS II.

The report is equally clear about the European arrest warrant, stating,

“the Government suggested that ‘Norway and Iceland’s Schengen membership was key to securing even this level of agreement’, and that ‘there is no guarantee that the UK could secure a similar agreement outside the EU given that we are not a member of the Schengen border-free area’”.

The European arrest warrant, which we have heard is so important to policing, is itself at risk. The committee’s view, which it is giving to the House this evening, is that there is no real likelihood of our being able to get anything as good as we have at present in any of these three areas.

In those circumstances, I put to the Government two questions. First, what is stopping us remaining part of this home affairs and justice system—of Europol, the Prüm system, the information exchanges and part of the European arrest warrant? Secondly, if nothing is stopping us, why do the Government not want to remain part of it? Is there a pragmatic reason in terms of national interest why we should not remain part of a system that, in the views of everybody who has expressed a view this evening, including some very expert people, is clearly essential to our security in those areas? If the Government are saying there is no practical reason why we cannot be a member of the system and it is simply that we do not like the European Court of Justice or the politics, I am afraid they are contradicting themselves. This has already been quoted many times, but the Government said in 2014 that they would,

“never put politics before the protection of the British public”.—[Official Report, Commons, 10/11/14; col. 1224.]

If they are saying, “We have a very good system here protecting the British public—the best we have ever had. We want to get rid of it not for practical reasons, but mainly for political reasons”, by definition they are in contradiction of their own commitment. I could use non-parliamentary language to describe the situation in which they proceed directly in contradiction with the description of their activities that they have given to the public.

Those two questions are very important. What is stopping us remaining full members of these institutions? If it is simply because the Government do not want to join them, why do they not?

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I take this opportunity to thank the EU Home Affairs Sub-Committee for producing its report, Brexit: Future UK-EU Security and Police Co-operation. In answer to some of the questions from the noble Lord, Lord Rosser, I say that the Government will respond specifically to the report. I am grateful to those who have spoken during today’s long debate and in particular to the noble Baroness, Lady Prashar, for securing it.

A wide range of views have been expressed from across the Chamber, but I am reassured by the broad consensus across the House that the Government should continue a high level of co-operation with our EU neighbours on security and policing matters. The Government are committed to strong practical co-operation on security, law enforcement and criminal justice now and after we leave. We will work with our European partners as we negotiate our exit to find solutions that promote security in the UK, across Europe and beyond. I am very pleased that my noble friend Lord Wasserman is optimistic about the future.

The perpetrators of crime and terrorism do not respect borders, and the threat that they pose is becoming increasingly transnational. We know that international organised crime groups exploit vulnerabilities such as inadequate law enforcement and criminal justice structures. Furthermore, threats such as cybercrime and online child sexual exploitation are by definition international in a technically interconnected world. In the face of these common threats, it is difficult to see how it would be in anyone’s interest for exit negotiations to result in a reduction in the effectiveness of security, law enforcement and criminal justice co-operation.

Our relationship with the EU currently centres on a number of practical co-operation measures that have been developed in response to the changing shape of the EU and the evolving threat of international crime. We continue to value our co-operation and information sharing through measures such as the European arrest warrant, which so many noble Lords have mentioned, together with Europol, the European criminal record information system and the second-generation Schengen information system, in our effort to fight crime and prevent terrorism. The UK will continue to participate fully in all these measures while we remain a member of the EU.

Leaving will of course mean that our relationship with the EU will have to change. In the UK we are examining the mechanisms now in place to support practical co-operation in the fight against crime and terrorism, to help to identify potential options for how we might work with our EU partners in future. Looking ahead, we need to negotiate the best deal that we can with Europe, including thinking about the tools and mechanisms for co-operation with EU member states that help to keep all European citizens safe. The UK’s future access to the practical mechanism through which we co-operate with the EU will form part of the wider exit negotiations. The UK is in a unique position, having taken a leading role in developing—

[Lord Davies of Stamford]

The Minister says that when we leave the EU our relationship with the institutions in the justice and home affairs field will have to change. Will they have to change because the Government want them to change, or in her view will it be because our European partners will insist that they change?

[Baroness Williams of Trafford]

My Lords, they will change because that is an inevitable fact of leaving the EU. We will no longer be members of the EU.

[Lord Davies of Stamford]

That is not an answer.

[Baroness Williams of Trafford]

Well, that is the answer that I am giving the noble Lord. Perhaps at this late hour he will indulge me until I get to the end, and he might be a bit more satisfied by the time I have finished.

Looking ahead, we need to negotiate the best deal that we can with Europe, including thinking about these tools and mechanisms with EU member states that help to keep European citizens safe. We are in a unique position, having taken a lead role in developing the practical co-operation measures now in place across the EU, and our expertise and drive for high standards are valued by our EU partners. That is why we will not seek to adopt a model currently enjoyed by another country; we are looking for a bespoke approach that works for the UK as well as for the EU.

Those negotiations will be complex and lengthy, and it would not be appropriate to pre-empt the outcome. I know that many noble Lords are anxious to understand the detail of the relationship that we may agree with the EU but, although the Government are keen to provide clarity where we can, it is also important that we do nothing to undermine our negotiating position.

What is absolutely clear is that this Government are committed to ongoing co-operation to keep 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 several EU countries, and I am reassured to hear that there is a shared understanding of the importance of effective ongoing co-operation.

I will now respond in more detail to some of the points that noble Lords have raised this evening. All noble Lords have talked about our relationship with Europol. As noble Lords have said, Europol’s prime objective is to strengthen and facilitate co-operation in preventing and combating serious organised crime and terrorism. By providing a platform for members to share intelligence and information, and through a strong analysis function, it offers unparalleled opportunities to prevent serious crime and protect EU citizens, including those in the UK. The UK plays a lead role in Europol; indeed, the UK staffs one of the largest national desks in the organisation and is one of the biggest contributors of information to Europol systems. We value our participation, and will continue to play a role while we remain in the EU. The recent decision to seek to opt into the new Europol measure is testament to that.

As I said, our future practical co-operation will be subject to negotiation, and it is too early to say what shape our relationship with the agency will take after we leave the EU. The models of co-operation enjoyed by other countries, such as the US, illustrate the breadth of agreements that can be achieved with Europol, but the UK will be in a unique position as a former EU member with our history of working with Europol, so we will not be looking to replicate any other nation’s model.

The noble Baroness, Lady Prashar, raised the point that while the report was in preparation a bespoke arrangement was agreed for Denmark, and wanted to know more about it and how relevant it might be for the UK’s future. Denmark’s situation is different from the position that the UK will be in once we leave the EU. It is a member state that does not participate in the new Europol measure but is seeking a special agreement from within the EU. Obviously, that presents a different set of challenges for the parties concerned. The Government are exploring options for Europol once the UK has left the EU, but it is early to speculate on what they might look like.

The noble Baroness and other noble Lords also asked about the relevance of the 2014 opt-in decision. The justice and home affairs opt-out in 2014 gave us the opportunity to consider the value of certain measures to the UK. While that decision provides a reference point, it is important to be clear that the situation following the outcome of the EU referendum means that the context is now different. To state the obvious, we will no longer be a member of the EU so, unlike the 2014 decision, the question now is not whether we seek to rejoin certain measures as a member state; instead, we need to consider how we should interact with the EU security measures from outside the EU.

Quite a few noble Lords asked about Prüm in the context of my right honourable friend David Davis in the other place. During debate, he said that we were making new arrangements for data-sharing. The Prime Minister has been clear that one of her 12 negotiating objectives is to continue to work with the EU to preserve European security, fight terrorism and uphold justice across Europe. She is quite clear about that. As part of the negotiations, we will discuss with the EU and its member states how best to continue co-operation on security, law enforcement and criminal justice.

The noble Baroness, Lady Prashar, also asked about what we should read into the fact that the Government’s White Paper says that in paragraph 12.2 the EU institutions are listed among the entities that will be part of a “phased process of implementation”. The Prime Minister has been clear that she wants us,

“to have reached an agreement about our future partnership by the time the two year Article 50 process has concluded. From that point onwards, we”,

expect a,

“phased process of implementation, in which”,

Britain and the EU institutions and member states prepare for the new arrangements that exist between us. It will,

“give businesses enough time to plan and prepare for those new arrangements”.

It is in no one’s interests for there to be a cliff edge for business or, indeed, for the rest of the country, as we change from our existing relationship to a new partnership with the EU, but that does not mean that we will seek some form of unlimited transitional status. That would not be good for Britain and it would not be good for the EU. As the White Paper says,

“the interim arrangements we rely upon are likely to be a matter of negotiation”.

The noble Baroness also talked about the precedents for adjudication mechanisms and international arbitration in trade agreements. Again, we need to negotiate the best deal that we can for Europe, including thinking about the tools and mechanisms for co-operation with EU member states.

The noble Baroness also asked about the great repeal Bill and made the point about the Government’s intention that, wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before. She asked about how I envisaged the process of converting EU law into domestic law would work in the area of criminal justice. All government departments are currently reviewing the issues and opportunities arising from exit, including the requirements for legislation in addition to the great repeal Bill. We will bring forward a White Paper on the Bill, which will set out our approach to give effect to withdrawal on the domestic statute book, and we will ensure that it is published in sufficient time to allow Parliament to digest its contents in advance of introduction of the Bill in the next Session.

The noble Baroness also asked about Article 50 negotiations. Under Article 50 of the Treaty on European Union, the arrangements relating to the UK’s withdrawal are to be made between the UK and the EU in a withdrawal treaty. The content of the treaty will be a matter for negotiation and our efforts will be focused on getting the best deal possible for the UK in negotiations with the EU.

The noble Lord, Lord Soley, made the point about needing to have a special relationship with the EU and needing new mechanisms for co-operation. As the Government have made clear, one of the 12 objectives of the negotiations ahead will be to establish a new relationship which enables the UK and the EU to continue practical co-operation with other member states to tackle cross-border crime and keep our people safe. We are in a unique position; we are a valued partner in the EU and have played a leading role in the development of a number of the EU’s security measures that are in place. That is why we will not be following any other nation’s model.

The noble Lord also asked how we will operate outside the ECJ’s jurisdiction. The Prime Minister has been absolutely clear that after withdrawal—as the noble Baroness, Lady Ludford, articulated—our laws will not be made in Brussels but in Westminster, Edinburgh, Cardiff and Belfast. The judges interpreting those laws will not sit in Luxembourg but in courts in this country. The authority of EU law in Britain will end. Until we exit the EU, we remain a full member of the Union and the CJEU will continue its work.

The noble Lord, Lord Paddick, talked about sovereignty versus security and suggested that we face a choice between the two. That is possibly overly simplistic. The UK is in a unique starting position, and we will need to negotiate the best deal we can with Europe while recognising that this process will not be brief or straightforward.

The noble Lord, Lord O’Neill, asked how we will secure a good enough relationship on Europol—that is, better than other third countries. We absolutely value the role of Europol in helping law enforcement agencies to co-ordinate investigation on cross-border crime but, looking ahead, we need to negotiate the best deal we can with Europe. We are in a unique position, but it is very early to speculate on what that will look like.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made the point that the EAW is worth signing up to the ECJ and surrendering sovereignty for. As always, he set out a typically forensic and well-informed analysis on the question of sovereignty and the UK’s future relationship with the EU, especially as pertaining to the European arrest warrant. I listened carefully to what he said, but it is too early to speculate at this stage on exactly what our relationship with the ECJ will be after we leave the EU.

The noble Lord, Lord Kirkhope, asked how we create a flexible future relationship with the EU. Are we underestimating the challenge of doing so? However, as the Prime Minister has made clear, one of the 12 objectives for the negotiations ahead will be to establish a new relationship which enables the UK and the EU to continue practical co-operation with other member states to tackle cross-border crime and keep our people safe.

The noble Lord, Lord Judd, talked about trafficking and drugs and the fact that crime is international. In the modern age, we must cede some sovereignty and work with international institutions. I refer back to my answer to the point made by the noble Lord, Lord Paddick, on sovereignty versus security not being a binary choice. The Prime Minister has been clear that, after withdrawal, our laws will be made in Westminster, Cardiff, Edinburgh and Belfast, and the judges interpreting those laws will sit not in Luxembourg but in courts in this country.

The noble Lord, Lord Davies, identified the value of SIS II, Prüm and the EAW. He asked what is stopping us from remaining part of these and if there is nothing why the Government do not want us to join them. The UK’s exit from the EU will put us in a unique position, seeking co-operation on security and law enforcement as a former EU member. We must now work with the EU to agree the way we co-operate on both security and law enforcement after we leave. Although the Government are absolutely committed to future co-operation, I cannot set out a unilateral position ahead of negotiations.

The noble Lord, Lord Hannay, talked of the risk of a cliff edge on the day we leave, with no plan B. We need to agree budgetary contribution and dispute resolution and we need a living solution to avoid a static relationship. The noble Lord identified some of the issues that would need to be considered before and during the negotiations. The UK and the EU have a shared interest in effective co-operation while we remain a member state and after we leave, and the negotiations will need to consider the full range of options. It will be in all our interests to avoid any cliff edge in negotiating with the EU. We will need to reach agreement on a range of matters such as dispute resolution, and we will seek a relationship that is capable of responding to the changing threats that we face.

I am running out of time and I have three more noble Lords to respond to, which I will do in writing. In fact, it is two noble Lords—the noble Lord, Lord Stevens, and the noble Lord, Lord Rosser, in respect of his final point.

The Government recognise the challenge in negotiating a new relationship. However, we are absolutely committed to finding innovative solutions to enable us to continue to work together to keep our citizens safe and to achieve collective security in Europe and globally. Finally, I again thank all noble Lords who have taken part in the debate, particularly the noble Baroness, Lady Prashar.