EU: Police and Criminal Justice Measures

Lord Taverne Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Lord Taverne]

My Lords, I, too, would have voted for the amendment moved by the noble Lord, Lord Hannay, if the Motion had remained in its original form. Now it is one which I can support because it commits the Government to opting in as their official policy to the measures which matter most. However, the history of where we have got to needs to be borne in mind because it is a reason for exercising a certain amount of caution. When the negotiations started between Oliver Letwin and Danny Alexander, the Government—at least the Conservatives—were absolutely clear that certain red lines existed, including the European arrest warrant and more jurisdiction for the European Court of Justice. There was strong opposition from Open Europe and, naturally, from the UKIP tendency inside the Conservative Party, but there was also opposition from leading figures in the Conservatives such as Dominic Raab, who kept on explaining that you did not need Brussels at all and that you could organise a whole lot of separate bilateral negotiations. Fresh Start said that it would not opt back into anything. However, matters have changed and we are now in a position whereby, on the face of it, the Government are committed to serious opt-back-ins.

However, the House of Commons debate was not exactly reassuring. In particular, the speech by the Home Secretary was in my view pretty disgraceful, reiterating the claim that this was the first step in the major repatriation of powers because 100 measures would be left opted out of. It was in fact one of the ablest of the Europhobes, Mr Jacob Rees-Mogg, who completely exploded that idea by asking which were the important measures that we were no longer going to opt back into. In addition, the whole tone of the Home Secretary’s speech was one of trying to appease the Europhobes. She assured them that they did not have to worry too much because they always had the right to vote against the opt-ins when they came to Parliament again.

I want an assurance from the Government, which I believe the Minister will give, having talked to him on this issue very recently. We need an absolute assurance that the Government will not yield one further inch towards the Europhobes. It is not a happy history. The Prime Minister had made a number of pro-European remarks but when the going has got tough he has always given in. That is why he bought peace with the promise of a referendum in 2017, which is a ridiculous commitment because by 2017 we will not yet know what sort of Europe—which is in a state of flux—we will either have to stay in or leave. Therefore we need an assurance that there will be no further surrender and that there will be a strong Whip in the House of Commons and not be endless speeches that would delay the whole procedure—because every single opt-in measure will be challenged by the Europhobes, who will not give up their opposition.

If the Government stand firm, I think this is a good result. I am not as worried as the noble Lord, Lord Tomlinson, about a legal challenge. Having looked at this, I do not think that there are grounds for a legal challenge. However, the tactic of judicial review could be used to try to delay a decision. I am more worried about that than about the merits of a challenge. If the Government stick to it, this will be a good result. It will be the first defeat for the UKIP tendency and for UKIP and I hope that there will be many more. I hope that in the 2014 elections all the parties—or at least those that support these opt-in measures—will expose UKIP’s position as that of a party which is soft on crime and does not want measures that can deal with people traffickers, money launderers, porn merchants and all the rest. We should seize that opportunity provided that the Government stick firmly to what they have now promised.

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[Baroness O'Loan]

My Lords, I speak as a member of the sub-committee of the European Union Committee and as one who participated in the inquiry that resulted in the 13th report. I do not speak on behalf of the committee.

It is perhaps desirable not to proceed with undue haste in making a decision on this matter. No decision is required until May 2014. The Government are arguing that they need the additional time for negotiations, but it might be wise to contemplate the fact that, as other noble Lords have said, some of the consequences of the opt-out, if matters proceed as indicated, may be less than favourable for the United Kingdom. If the decision is made, on 1 December 2014 the Court of Justice and the European Commission will have no powers in respect of these matters over the UK, but the pre-Lisbon measures will remain in effect in the other member states. If the decision was made, then until—or perhaps unless—we rejoined we would have no access to a number of processes and facilities that expedite the fight against crime and terrorism.

We would cease to have access, as has been said, to the European arrest warrant. We would cease to have access to Europol, led by Rob Wainwright, who has been described by the Home Secretary as doing a very good job as director. We would lose access to the EU judicial co-operation unit, which costs just £360,000 a year and provides centralised facilities for liaison in The Hague. Instead, we would have to have bilateral arrangements with the judiciary in each member state. We would lose our capacity to be involved in joint investigation teams. The Government told the committee’s inquiry into the EU internal security strategy that they considered these joint investigation teams to be a valuable tool, and the Government supported the Commission’s plan to expand their use.

I could go on and on describing the benefits that we would lose if the Government were to opt out, or even to fail to opt back in within a limited period. The Home Secretary said that the Government are acting on the grounds of principle, policy and pragmatism in making this decision. The EU Committee took extensive evidence, as noble Lords have said, from a wide range of witnesses in the course of the inquiry. Overall, the response was one of massive concern about damage to the UK’s interests. I refer the House to paragraph 157 of the 13th report, which states:

“The Lord Advocate told us that he would have ‘real concerns’ if the UK were to opt out of the EAW and the DPP told us that to do so would result in a poorer deal for victims of crime. ACPO … emphasised the significant percentage of EU nationals from other Member States that were arrested in London each year and suggested that it would be more difficult to return them to their Member State of origin”.

It also suggested that,

“withdrawing from the EAW would be a mistake and could jeopardise justice and public safety … the President of Eurojust told us that it would make it harder for the UK to tackle cross-border crime”.

JUSTICE and Justice Across Borders stated that,

“criminals would exploit any differences that arose between any different extradition arrangements … and others suggested that it could result in the UK becoming a ‘bolt-hole’ or ‘safe haven’ for criminals … organised crime or terrorism”.

The report concludes that the European arrest warrant is the single most important pre-Lisbon measure and that it is inevitable that the extradition process would become more protracted and cumbersome, potentially undermining public safety.

No system is perfect. International co-operation on criminal justice measures will always require amendment to make them work as well as possible. Even the criticisms that have been made of the European arrest warrant relate mainly not to the warrant itself but to the consequences of people being sent to certain countries in terms of long periods of pre-trial detention et cetera.

Withdrawing from protocols or exercising the opt-out will not enable us to have any influence to improve matters in that respect. In his review of the operation of the European arrest warrant in 2011, Sir Scott Baker concluded that it had improved the scheme of surrender between member states and that broadly it operates reasonably well. He made recommendations and the Government committed to work with the Commission and other member states to improve the situation.

At a time when we are fighting international terrorism with all its devastating consequences for individuals, national economies and the general global situation; at a time when international organised crime is growing rapidly and when levels of people trafficking, smuggling and white collar crime represent a significant threat, there can be no logic in withdrawing from existing arrangements that work in the interests of the UK, even if we hope to rejoin on our terms—something which may not be available to us.

In all the evidence we took as a committee, very few witnesses drew our attention to any specific measures that they considered to be detrimental. The committee concluded:

“We therefore consider that there are compelling reasons of national interest for the United Kingdom to remain full participants in most of the measures … As to the remainder we have identified no persuasive reason for the United Kingdom to withdraw from them”.

We need an extradition process. We need to continue to have access to Europol and Interpol—as the noble Lord, Lord Lawson, says—and other national and international intelligence-handling operations so that we can become aware of suspected threats of crime or terrorism, and so that we can act accordingly. We need the benefits of joint investigations with all their logistical support mechanisms. We need to be able to take advantage of these measures. The Government of course recognise this and state that they will opt back in. However, it will not necessarily be as simple as that. As the committee stated in paragraph 223 of its report:

“While in our discussion with the Commission we found no inclination on their part to obstruct or make the process of opting back in difficult, seeking to rejoin particular measures would not necessarily be automatic or straightforward. Either the Commission, or where appropriate, the Council, may seek to impose conditions on such requests”.

The Home Secretary, in evidence to the Committee, accepted that the Commission may make it a requirement that the UK rejoin or opt into a particular measure to preserve the coherence of the totality of the policing and criminal justice measures. The Commission made clear in its evidence that it considers coherence to be a matter of paramount importance.

All this is happening in the context of debate about the current European arrangements and our membership of the European Union. Other noble Lords have spoken quite passionately about that on occasion.

For Northern Ireland and for the UK as a whole, the issue of continued involvement in these measures is critical. There is still a terrorist threat from republicanism in Ireland, north and south. There is also a threat from international terrorism. Today, according to the Government, the situation is that in mainland Britain an international terrorist attack is a strong possibility, and in Northern Ireland a terrorism-related attack is possible but not likely. In Northern Ireland, an international terrorist attack is a strong possibility and a Northern Ireland-related attack is highly likely.

It may be that the Government are relying on the interests of other member states in our participation in these arrangements to force Commission acceptance without undue conditions on the UK’s request to opt back in. I have heard and seen extensive concern being expressed both internationally and within the EU about what the UK is doing and its potential damage not just to our country but to other countries’ interests. However, while the Commission will make the majority of the decisions, the Commission of course comprises commissioners from member states who are required by virtue of their position to act in the interests of the European Union rather than in their national interests. Notwithstanding that, it would be unwise to anticipate that the Commission will simply accede to requests for re-admission. It is surely necessary to ensure that our anti-terrorist, crime prevention and detection operations are as strong as possible.

The biggest number of European arrest warrants to the UK over the period from 2009 to 2011 were from Ireland, the Netherlands and Spain. In Ireland and Spain there are a significant number of terrorist incidents.

[Lord Taverne]

Five minutes.

[Baroness O'Loan]

If noble Lords will just bear with me, I am nearly done. Of all surrenders to the United Kingdom, 70% were from those three countries. I am not scaremongering in drawing these matters to your Lordships’ attention. I have lived with terrorism for 36 years. I have worked in many countries seeking to make good the damage from it. The evidence that the committee on which I was privileged to serve received was both compelling and overwhelming. Let the Government take more time to respond and to contemplate the consequences of the proposal. It is never wise to act when one does not have a full understanding of the possible consequences of such action. We do not yet know the consequences of what the Government are now proposing.