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

Lord Hannay of Chiswick Excerpts

Monday 17th November 2014 Lords Chamber

[Lord Lamont of Lerwick (Con)]

My Lords, I am grateful to the noble Lord, Lord Bates, for introducing this Motion, albeit that he did so at a somewhat galloping pace, which is perhaps not surprising after the marathon that he has already performed today. I agree with the criticisms of the procedures made by the noble Lord, Lord Boswell, although, unlike him, I have some wider reservations about the whole 35 measures that the Government propose to opt into.

The noble Lord, Lord Boswell, talked about the procedure in this House and in the Commons. Of course, a very important point in the other place was that a specific vote was promised on the issue of the arrest warrant. That is an extremely important point. In November 2013 the House of Commons European Security Committee concluded that the vote on opting back in,

“should ensure there is a genuine opportunity for the House to determine the measures the Government intends to rejoin. To consider the 35 measures as a ‘block opt-in’, subject to one motion, would be seriously to misconceive the individual significance of some of the measures … We ask the Government to reflect this by … tabling separate motions for each of the measures in which it wishes to opt back in”.

That was in paragraphs 571 to 574 of the report.

It was a great pity that there was not a specific debate on the arrest warrant as it was impossible for Members of the House of Commons to talk about individual cases as they affected individuals. When one Member of Parliament, Mr Wiggin, attempted to do that, to give an illustration of what this meant for one of his constituents, he was told by the Speaker that he could not go on describing that and that it was out of order.

My second important point is that the European Scrutiny Committee in the House of Commons concluded that the opt-out, combined with the Government’s proposals for opting back into certain laws, represented no significant repatriation of powers from the EU. Indeed, the Home Affairs Committee thought that it could result in a net flow of powers to the EU, given the introduction of full European Court of Justice jurisdiction. This is because of the relative impact of the laws the Government wish to back into, measured against the lesser importance of many of the other measures under the opt-out.

Another important question is whether we have legally binding agreements, treaties or co-operation. In their command paper of July 2013, the Government said that, in some cases, there was no need for legally binding agreements for practical co-operation to take place with other EU countries to tackle cross-border crime. In the case of some of the 35 EU laws which the Government propose to opt back into, the need for binding law is highly questionable. For example, do we really need to have supranational measures to deal with the exchange of information between member states to police international football matches? The Government also said that, where a binding agreement is needed, an alternative to opting back into EU legislation—which is irreversible and entails full ECJ jurisdiction—is a bilateral treaty between the UK and the EU as a whole. This could apply to extradition.

A fundamental problem with opting back into these EU laws with full ECJ jurisdiction was expressed by the Government in 2012 in response to the European Committee of this House. They stated:

“The practical effect of the ECJ gaining full jurisdiction in this area after the transitional period from 1 December 2014 is that the ECJ may interpret these measures expansively and beyond the scope originally intended. This concern is compounded by the fact that the ECJ has previously ruled in the area of Justice and Home Affairs in unexpected and unhelpful ways from a UK perspective”.

Those are not my words but the words of the Government, and we should take them extremely seriously.

Instead of opting back into the legislation, an alternative would be a new bilateral treaty on the matters in question. This would have the following advantages. The UK would negotiate as a sovereign state regarding the relevant matters. A UK-EU bilateral treaty would enable the UK to avoid coming under the jurisdiction of the ECJ; we could apply different rules and safeguards for British citizens. It would also allow us to withdraw from it if it began operating against the national interest; it would not be frozen in aspic for ever.

[Lord Hannay of Chiswick (CB)]

I am grateful to the noble Lord for giving way. He has quoted extensively from the committees in another place and from evidence given by Ministers but he has not seen fit to refer once to the two reports made to this House. Could he come on to those, because they answer every single point he has made?

[Lord Lamont of Lerwick]

The noble Lord can, I am sure, speak and answer my points. I have not yet finished my speech: I have quite a few more points to make. I know that the committee in this place went in a completely different direction from those in the House of Commons. I confess that I found those in the House of Commons more persuasive than the committee in this House. However, it is, as always, open to the noble Lord to speak and I am sure he will do so as persuasively and charmingly tonight as he always does.

Pursuing the point about a bilateral treaty between ourselves and the EU, there is a precedent for this. Denmark has its own opt-out on justice and home affairs and concluded three treaties with the EC prior to the Lisbon treaty. The point is often made that the three EU-Denmark treaties under the provision are subject to the ECJ. That is true, but it does not follow that a UK-EU agreement would have to be: it depends entirely on what we say. It depends what the Government negotiate. A UK-EU treaty could provide an alternative dispute mechanism as the EU has some treaties with various other countries. Of course, I accept that a treaty would take time, but the EU treaty—specifically Article 10(4) of the Protocol on Transitional Provisions—allows the Council on a proposal from the Commission to agree to transitional arrangements in the light of the opt-out. The UK could ask for the relevant pieces of the EU legislation, such as the arrest warrant, to continue to apply for a period of time that allowed for the conclusion of a replacement bilateral treaty. That would not entail opting back in—which is, as I say, irreversible.

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[Baroness Williams of Trafford]

My Lords, it is not unusual to refer to the Companion on the general principles of conduct of the House. We have had the Modern Slavery Bill and the Statement today, which were expected to conclude earlier than they did. I am just giving guidance.

[Lord Hannay of Chiswick]

I have every sympathy with the noble Baroness’s response, but she is aware that someone from her Front Bench spoke for a pretty lengthy time at the beginning of this debate, and now she is asking everyone else to take a lot less time. I think it would be best if we got on with it.

[Baroness Williams of Trafford]

I think that it would be a good idea to get on with things. I am simply giving guidance from the Companion, rather than dictating to anyone that they curtail their remarks.

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[Lord Willoughby de Broke (UKIP)]

My Lords, I am delighted to follow the noble Lord, Lord Lawson, and I will certainly follow his recommendation to be very brief. He is of course absolutely right to say that on constitutional grounds, extradition should be a matter for our own courts and not for the European Court of Justice. No matter how the Government try to play this and finesse it, the fact is that through this measure of opting in we are handing over the rights of extradition from our own courts to the European Court of Justice.

The noble Lord, Lord Lamont, made the point that we would be handing our citizens over to very different systems of justice. For example, there would be no habeas corpus, no protection from trial in absentia, no right to silence and no requirement for prima facie evidence to justify extradition. This is a major transfer of power that really cannot be justified by anything that I have heard so far, certainly not to satisfy the Government’s rather rushed timetable. As someone said, the Government have now had more than four years to consider this matter and here we are, only two weeks from the deadline with the Government still trying to push it through.

Neither is this all justified on the grounds of satisfying police leaders, who claim that they need these powers to protect the public from dangerous criminals. Like the Government, the police always want more powers. Some noble Lords will remember when they wanted the power to detain suspects for 90 days. After a very long debate, led by the Liberal Democrat Benches, this House denied the police those powers that they asked for. I do not think that the ceiling fell in after that.

[Lord Hannay of Chiswick]

Perhaps the noble Lord would take into account the fact that the police are not asking for more powers. They are asking to not have fewer powers.

[Lord Willoughby de Broke]

I will accept that distinction but our joining the ECJ will in fact give them more powers—and the police always want more powers, as I have said.

I must remind noble Lords that far from being an efficient tool of justice, the European arrest warrant has been, in many cases, the cause of serious injustice. There was the case which the noble Lord mentioned, which I will not go into, of Andrew Symeou. He also mentioned Fair Trials International, which has brought to my attention one of the cases that it mentions. It is of an Italian, Mr Edmond Arapi, who was subject to extradition from Britain to serve 16 years in a prison for a murder in a city in which he never committed the crime and had never visited. The murder was committed on a day when he was actually at work in the UK. What Mr Arapi said was—this was reported by Fair Trials International, so I presume it is correct:

“I had overwhelming evidence that I could not have committed the crime yet they didn’t care. All they cared about was following the procedures of the arrest warrant, and I spent six weeks in jail as a result”.

I really do not think that that is the EU arrest warrant working as perfectly as the noble Lord on the Labour Benches said. It is yet another reason why we should not go back into this extraordinary arrangement and not give our powers away like this.

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[Lord Inglewood (Con)]

My Lords, I shall be brief, because I like to be brief. I rise to speak because I have the good fortune to be chairman of your Lordships’ Select Committee on Extradition Law, which is looking at extradition law in a wide context and which is due to report in March. We did, however, because of the very considerable political controversy surrounding the question of whether or not we should opt back in to the European arrest warrant, produce an interim report which was published last Monday. It was based on a debate between my noble friend Lady Ludford and the honourable Member for North East Somerset, who was standing at the Bar a few minutes ago. It was also informed by all the evidence we had earlier heard about extradition more generally. We did it in the expectation that it would help your Lordships and in the hope that it might help Members of the other place.

The conclusion we reached in paragraph 20 of the report was that:

“On the basis of the evidence we have received, there is no convincing case for disagreeing with the conclusions previously reached by the European Union Committee that”,

basically, we should opt back in. The consequences of that conclusion are that the majority of the committee believed that we should opt back in and a minority believed that there was not enough evidence to form a proper view. It is very interesting, and also very significant, that since that date we have had evidence submitted to the committee by the Lord Chief Justice of England and Wales, the noble and learned Lord, Lord Thomas of Cwmgiedd—I hope that I have pronounced that properly. Having made it clear that the decision as to whether or not to opt back in is a matter for Parliament and not for him, he said:

“Had I been able to do so, I would have expressed the view that all of the evidence I have seen would lead me to a conclusion similar to that in paragraph 20 of your report”—

that is to say, what I have just read out to your Lordships and the conclusion as reached by the European Union Committee. I must confess, and I hope that it will not upset my noble friend Lord Lamont too much, that I find the authority of the Lord Chief Justice a bit more persuasive and authoritative than his views.

My noble friend raised a number of serious points, but if he had heard the evidence and seen the transcripts of the evidence that our committee received, I am sure he would agree with me that much of the concern that he expressed has, in fact, now become misplaced. We have seen an evolution in the way in which the courts deal with matters of extradition which goes to remedy a number of the shortcomings that I think it is agreed by everyone, not least by the Lord Chief Justice, were there in years gone by. I believe that it is dangerous to extrapolate from past cases what is actually happening now.

Something that I think was very telling about the inquiry that we conducted was that we tried to find a respected and regular practitioner at the extradition Bar who worked in the courts in this area and who advocated this country not opting back in, but we could not find such a person. That does not mean that they may not exist, but we were unable to identify them. If we do not opt back in, I believe that we shall be creating a judicial no man’s land in which for years, not months, there will be no proper legal regime covering the kind of problems that are increasingly prevalent in the world in which we live, where movement, legal or illegal, is ever more prevalent.

Concerns have rightly been expressed about miscarriages of justice, but let us be clear about this: that is a phenomenon that, regretfully and to our national shame, is not unknown in this country. It does not follow that our courts are necessarily not going to carry out miscarriages of justice, although obviously we try not to do it. To suggest that somehow all foreign courts are therefore not going to deliver justice is not true. What we have to do is try to ensure that the system works in the interests of justice as best it can.

As I have already explained, I and the committee believe that the more recent modifications to the modus operandi of the extradition process here in Britain both materially make our system better and what is more—this is important bearing in mind the point that was raised earlier—are compatible with EU law if we opt back in. Most of the objections to our opting back in to the European arrest warrant are matters of constitutional principle, not constitutional propriety, and fundamentally are not based on a concern for justice. I believe that if we do not opt back in, it will be bad for justice, for law and order and for UK citizens.

[Lord Hannay of Chiswick]

My Lords, I think that tonight’s debate marks the final parliamentary chapter in this tangled tale of Britain’s block opt-out from pre-Lisbon justice and home affairs legislation, and of its aim to rejoin those 35 significant measures. Your Lordships’ House has been closely involved in this matter from the very start. It has been a tangled tale over the past two years, and I suspect that some Members may be heartily sick of a process that has involved two weighty reports from your Lordships’ Select Committee, three full-scale debates and any amount of behind-the-scenes work and consultation. Dry, complex and technical though the process may have been, however, it concerns matters that are crucial to Britain’s ability to maintain our own internal security and to combat effectively the continuously rising tide of international cross-border crime. Whether you are talking about drugs, human trafficking, money laundering, cybercrime, terrorism or child pornography, all these matters are assisted by those 35 measures.

The role that your Lordships’ House has played in terms of parliamentary scrutiny and holding the Government to account has been an exemplary one, and I pay tribute to those others, along with myself, who participated in it and to the noble Lord, Lord Boswell, who led our efforts. We should register tonight that the processes in this House have worked well. It is not part of our duty to intrude on the private grief of another place; suffice it to say that the processes there seem to be a good deal suboptimal.

We are in a totally different position, as the Minister said when he opened the debate, because when we debated and approved the triggering of the block opt-out we also approved the reintroduction of the 35 measures. We decided that in July 2013. I hope that the noble Lord, Lord Lamont, and others will forgive me for pointing out that pretty well everyone who has criticised the line that the Government are now taking failed to speak in any of those debates.

Now we are where we are. I welcome the fact that the Government adjusted their Motion for tonight’s debate to take into account the fact that the 35 measures needed to be explicitly referred to. It was, I think, a bit of a mistake not to have done that in the other place. I have no hesitation in supporting the Government in the measures they now wish to rejoin. I equally have no hesitation whatever in supporting the noble Lord, Lord Boswell, in the criticism that he has made of the processes that have led us here.

I find it saddening that these European debates descend so much into what I can only describe as ideology, and are not enough concentrated on the substance of the matter—about which the evidence taken by the committee that I and others served on was pretty conclusive. It is a pity. Europe is not religion, it is politics; and in politics you have to make compromises. In this case, I believe that the Government have reached a very satisfactory compromise.

[Lord Pearson of Rannoch]

My Lords, when the noble Lord, Lord Hannay, accuses some of us of religious fervour, I have to say to him: “Da che pulpito vien la predica?”. From what pulpit comes the sermon? As noble Lords have said, as part of the block opt-in we are talking about tonight, we are looking at the European arrest warrant. The overriding objection to the European arrest warrant can be simply put. It allows the extradition, pretrial detention, trial, sentencing and imprisonment of British citizens in inferior foreign jurisdictions under the final jurisdiction of the inferior Luxembourg court. Trial by jury largely disappears in these cases and so does habeas corpus. Under Napoleonic law, the investigator and the judge are often the same person. There have already been several famous miscarriages of justice and I have no doubt that there will be more, whatever tinkering takes places with the system. My noble friend Lord Willoughby de Broke and others have mentioned some of those cases.

When I say that we are dealing with inferior foreign jurisdictions, I mean that we do so under the final auspices of, believe it or not, that engine of the treaties, the European court of so-called justice in Luxembourg, which is not a court of law at all—it is the engine of the treaties. It has to find in favour of ever closer union because that is what its instructions are from the treaties. When I say that we are dealing with inferior foreign jurisdictions, let me give you the example of just one of them—my beloved Italy. In Italy, pretrial detainees make up around 40% of the prison population. In this country, it is around 15%. Court processes in Italy last an average of 116 months. In the UK, it is an average of six months, rising to 10 at the Crown Court. In Italy, the maximum pretrial detention is 18 months. In England and Wales, this is set at six months, but a recent report found that our average was 13 weeks.

Under English and Welsh law, there is a presumption in favour of releasing the defendant pending trial. In Italy, circumstantial evidence is enough for a judge to order a pretrial detention. In Italy, a pretrial detention is decided not in open court but by a judge in chambers, possibly by the same chap who investigated the case in the first place. The defendant has no right to take part in the decision-making process and is not represented by a lawyer.

I hope that that is enough for Italy. Then there is Greece, that cradle of the Symeou case. I could go on about other EU jurisdictions, but I hope that I have said enough to make my point. No amount of convenience can override the principle that we should not be sending our citizens into these rotten systems, unless our courts are satisfied that the evidence which sends them there is sufficient.

There is only one advantage in going ahead with the European arrest warrant and these opt-ins. They will move the United Kingdom even further along the road to leaving the failed project that is the European Union.

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[Lord Faulks]

We consider that the safeguard should be capable of answering that particular problem. The important issue is whether there is an unnecessary delay. It will be appropriate to look at the particular facts of the case and for the judge responding to the warrant to decide whether he or she is satisfied about the arrangements. That, I suggest, is an answer, and unfortunate cases such as that of Andrew Symeou, which I accept was an egregious example of the European arrest warrant not working satisfactorily, should be avoided.

[Lord Hannay of Chiswick]

Before the Minister moves on from this point, does he not agree that it is perhaps a pity that our debate tonight has not mentioned explicitly one really crucial dimension for this country, which is the Anglo-Irish dimension? It is a very important one. All of us who have taken evidence on this matter are perfectly clear that the European arrest warrant has enabled the depoliticisation of extradition proceedings between the two parts of the island of Ireland. That has been of enormous benefit to both of them. If we were to junk the European arrest warrant, the Irish have no substitute to put in its place because they removed the Council of Europe convention when they transposed the arrest warrant into their legislation. Therefore, we would risk falling back into the worst turmoil of politicised extradition proceedings, often for enormously serious crimes.