Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019

Lord Kennedy of Southwark Excerpts

Tuesday 12th March 2019 Grand Committee

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I agree with the comments of the noble Baroness, Lady Hamwee, about the report of Sub-Committee A of the Secondary Legislation Scrutiny Committee. If I were the Minister, sitting here reading this report and having to address Members, I would be pretty unhappy that the Government put forward these regulations in such a way that the sub-committee’s report was so damning. Normally in these reports, one or two little lines are highlighted in black with a few concerns, but in this case they are all over the place.

The sub-committee’s comments highlight its concern about how this issue is presented to Members. The first says:

“These draft Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.


It goes on:

“We were not persuaded that so wideranging an instrument, covering policy areas that are individually of significant concern to the House, can be justified. Effective scrutiny is inhibited by the wide range of issues included”.


Looking at the document, these issues are huge. I do not think that this is the way to present them to either House. I accept that the Government are up against it in terms of time—perhaps that is of their own making. However, we in this place and the other House have not exactly been busy; on many days, we have gone home quite early. On Thursdays now, we seem to be going home at 2 pm; we often used to sit until 7 pm. There has been plenty of time to discuss these things in more detail.

The list of concerns is unacceptable. The sub-committee, quite rightly, criticised the Government when they brought forward the regulations. I endorse its actions in pointing that out. It is not acceptable to bring them forward in this way. However, I accept that if we end up with no deal and crash out—I do not want to get into that situation—we must have functioning procedures in place. So, if the regulations are voted for on the Floor of the House, we will not oppose them.

We participate in several EU measures to enhance our security, law enforcement and judicial co-operation. They are vital in keeping us safe from people who do harm and commit criminal offences. We all support that. The Minister reminded us that the regulations seek to revoke or amend EU retained law that is directly applicable to our current domestic legislation. She said that the regulations would deal with live cases—as I think she referred to them—at the point of exit, and extradition.

Other noble Lords referred to the 1957 Council of Europe Convention on Extradition, which, according to the Explanatory Memorandum, would be used in lieu of the European arrest warrant. That is regrettable. The measures in the convention are far more limited than the European arrest warrant. Yes, the UK and the EU would allow extradition requests from other member states in lieu of the European arrest warrant, but Article 2(3) of the convention states:

“Any Contracting Party whose law does not allow extradition for certain of the offences referred to in paragraph 1 of this article may, in so far as it is concerned, exclude such offences from the application of this Convention”.


It is clear that the situation will be worse. The only people who will benefit are criminals; nobody else will. This is the criminal’s friend. It is a ridiculous situation and it is not the right thing to do, so we need further comments from the Minister on it.

The Government have made the case for the importance of the European arrest warrant. They have explained that more than 1,400 individuals have been arrested on European arrest warrants issued by the other 27 member states and that, in the same period, EU member states have arrested 183 individuals and brought them to the UK. The warrant is an important tool and it is regrettable that we will end up less safe as a consequence of these actions.

The Minister spoke about the loss of access to databases. We will lose access to a number of databases as a consequence of this measure, so it would be useful to have some comments on that. We are told that the impact of a no-deal exit on security, law enforcement and criminal justice co-operation with member states is not in the scope of the regulations, but the Government need to set out their plans. People are concerned about where we are and the consequences; if they are concerned about anything to do with leaving the European Union, it is matters of security. We need to understand fully what is at risk. We will be outside the Schengen information system and Prüm. Again, that is very regrettable, so it would be useful if the Minister could comment on it. We must have effective systems in place to deal with these matters.

I would also welcome the Minister’s comments on Europol and Eurojust. I hope that she will not say, “We’re still working on that”. If I get that response, I will remind her that it has been nearly three years since the referendum and we need to know where we will be on these important matters.

We do not oppose the regulations. I accept that they are narrow, but they have not been presented to this House and the other House well. The Government need to do much more to reassure us that, whatever happens, we will keep people safe. I believe that some of the measures here will make them less safe going forward.

[Baroness Williams of Trafford]

My Lords, I shall start with the final point from the noble Lord, Lord Kennedy, which concerns one of our first considerations as we leave the European Union: keeping our people here safe. He hits the nail on the head. For that reason, I hope that down the other end they are voting for the Prime Minister’s deal.

We need to be clear about these instruments. Should the UK leave the EU without an agreement at the end of the month—the no-deal scenario—the UK’s access to these tools and measures would cease. We are absolutely clear about that. At the same time, the UK would cease to be bound by the security-related EU regulatory systems. This would occur as a result of the UK’s withdrawal from the EU through the Article 50 notification, but not as a result of the provisions found in these instruments—I stress this yet again. It is important to be absolutely clear that the regulations play no part in bringing about the UK’s withdrawal from the EU. Rather the purpose of the instrument is to make amendments to the UK’s domestic statute book, including retained EU legislation, to reflect the new situation.

--- Later in debate ---

[Lord Kennedy of Southwark]

The Minister made the point that these measures have been put together to assist scrutiny. No doubt she believes that but the scrutiny people do not; they think the opposite. This is not the first time that we have had reports like this—although this may be one of the worst ones. When will the Government realise that Parliament does not like the way they are laying instruments in front of us, and that they should do it a different way? Some of the instruments I have seen coming forward are like encyclopaedias. There should be a policy decision because they are not being received very well. If the Government want to have proper scrutiny. we need to do it a different way.

[Baroness Williams of Trafford]

I do not dispute what the noble Lord says. I am purely trying to explain the logic behind the way that it has been laid out.

The Government then published a second Explanatory Memorandum because of the Secondary Legislation Scrutiny Committee writing to the Home Office, commenting on the sheer length of the original Explanatory Memorandum. As the Policing Minister outlined in his response to that committee, the detailed information in the original Explanatory Memorandum was supplied in good faith—the committee recognised this in its report—to provide the committee and other users of the Explanatory Memorandum with a thorough explanation of each provision in the instrument. One can conclude that we could not do right for doing wrong. Some people thought that there was too much information, others not enough. In the event, we provided a more concise Explanatory Memorandum on 11 February.

[Lord Kennedy of Southwark]

I thank the Minister—that is very helpful. I do not know what goes on in departments. Do I take it that Ministers sit round the table and say: “We got that one wrong. Both Houses are clearly very cross. When we have the next set of stuff, maybe we should try and do it a different way”? Does that ever take place? Can the Minister enlighten us?

[Baroness Williams of Trafford]

I think the noble Lord would probably accept that in this instance the Secondary Legislation Scrutiny Committee coming to us saying it was far too long and complex, then us trying to do a more concise version was a learning point for us. We accepted the committee’s point. In that sense, we try to learn as we go along. I certainly do not want to come to Committee too many times and having to take the rap for Explanatory Memorandums that are too long, too short or incomplete.

[Lord Kennedy of Southwark]

I have one final point. I will then leave it and move on. If we are to have more regulations, in the next few days or whenever, I hope the Government will take on point the concerns raised here and in the other place.

[Baroness Hamwee]

My Lords, it seems to me that there a number of stages to this. There is scrutiny and then, as the Minister says, making the final regulations accessible to practitioners. Those are not necessarily the same things and what one may also take away from this experience is the need—following the scrutiny to whatever extent it is successful—to produce final versions in each of the subject areas that can easily be used, without having to go through the awful trail that we are all familiar with.