Further Discussions with the European Union under Article 50 of the Treaty on European Union

Debate between Lord Thomas of Gresford and Lord Callanan

Wednesday 27th February 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

The Minister will be aware, because he carried the Bill through, that the withdrawal Act has a provision that allows the Government to amend the date and time of leaving simply by regulations—it can be done overnight.

[Lord Callanan]

I have to say that many noble Lords have argued strongly against statutory instruments being approved “overnight”, as the noble Lord suggests, in other cases. He is, however, quite correct that there is such a provision. Nevertheless, the original provision is in the legislation. I give way to the noble Lord.

European Union (Withdrawal) Bill

Debate between Lord Thomas of Gresford and Lord Callanan

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Callanan]

I will come to that later in my speech, but I will answer that question.

In that same paper, we made it clear that we value the operational benefits that we derive—I was struck by the comments on this from the noble Lord, Lord Hogan-Howe, and on how valuable many of them are. The noble Lord, Lord Hannay, referred to many of them, too, including the passenger name record directive, the second generation Schengen Information System and the European arrest warrant. There is also ECRIS, referred to by the noble Earl, Lord Listowel, and all the various acronyms that go with many of these JHA matters. They are all to do with the systematic exchange of information with our EU partners—for example, on criminal records—which helps to deliver fair and robust justice. I hope that reassures the noble Lord, Lord Cormack. He referred to Interpol. I assume that he meant Europol, but, for the avoidance of any doubt, I should say that we continue to co-operate in the same way with Interpol.

We made it clear that we want to agree future arrangements in this area that support co-operation across a range of EU measures and agencies, and to avoid operational gaps for law enforcement agencies and judicial authorities in the UK and the EU. The level of co-operation that we want to sustain goes beyond the specific tools and measures highlighted by the noble Baronesses, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis. We have described the legal instruments here as a “toolkit” that can provide cumulative benefits. We have also indicated that we want our future partnership with the EU in this area to be dynamic, allowing us to co-operate if necessary in new ways in the face of evolving threats.

The amendment tabled by the noble Baroness, Lady Kennedy, highlights the respective roles of domestic courts and the CJEU. We made it clear in our future partnership paper on security, law enforcement and criminal justice that a future agreement in this area would need to provide for dispute resolution. Let me give a little more detail on that.

On leaving the EU we will bring to an end the direct jurisdiction of the CJEU in the UK. There are a number of existing precedents where EU agreements with third countries provide for close co-operative relationships without the CJEU having direct jurisdiction in those countries. The UK will engage proactively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU. We also published a separate future partnership paper on enforcement and dispute resolution last August, addressing many of those points and setting out the Government’s approach to these issues.

The House has of course debated this issue on a number of occasions, particularly earlier this month, on 8 February, in the debate on the EU Committee’s report on judicial oversight of the European arrest warrant. The withdrawal agreement and implementation Bill will implement the withdrawal agreement in our domestic law. In addition, the Government have already committed to provide Parliament with a meaningful vote on any final deal. This will give both Houses of Parliament the opportunity to scrutinise again the future relationship between the UK and the EU. We need to be able to work with the EU to respond quickly and effectively to the changing threats we face from terrorism and serious organised crime. In negotiations, we will be seeking to agree the best possible way to continue our work alongside our European partners in support of our common goals and shared interests. We are absolutely committed to securing the close relationship that the noble Baronesses, Lady Ludford, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis, want to see—and on that basis I hope that they will not press their amendments.

Amendment 99, also tabled by the noble Baroness, Lady Kennedy, would prevent regulations made under Section 7(1) of the Bill from diminishing the protections in relation to “protected persons” set out in Part 3 of the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014. As I understand it, the amendment seeks to ensure that the relevant authorities in England and Wales will continue to recognise and act upon European protection orders made in remaining member states after exit day, whether or not those states act on ours.

The EPO regime, established by an EU directive of the same name and implemented in England and Wales under the cited regulations, which came into force in 2015, is essentially a reciprocal regime. It requires the relevant designated authorities in the different member states involved to act and to communicate with each other in the making of an order and in its recognition and enforcement—and also, indeed, in any modification, revocation or withdrawal of one. It is not possible for us to regulate from here to require the relevant authorities of remaining member states to act in any particular way. As such, if we are not in a reciprocal regime we will no longer issue EPOs to remaining member states, since it would be pointless to do so, and nor will the authorities in those member states issue them to the UK, for the same reasons.

In short, absent our continued participation in the EPO regime, or in some proximate reciprocal arrangements in its place, these regulations will be redundant; they do not work unilaterally. This amendment therefore pre-empts the outcome of the negotiations, potentially requiring the retention of redundant legislation. It would not be right to create a false impression by retaining redundant legislation. I am happy to be clear, however, that if the forthcoming negotiations produce an agreement to continue access to the regime established under this directive, or something like it, appropriate steps and legislation will be brought forward to implement it at that time. This will encompass the protections for protected persons. We will, of course, consider that at that stage. Meanwhile, for now, there is no practical point or purpose in having such an amendment or these provisions.

I shall answer some of the other points that were made. The noble Baroness, Lady Ludford, asked me about the O’Connor case and about extradition to the UK from Ireland. I am sure that the House will understand that I am somewhat limited in what I can say on this matter; it is a live case at the moment. Suffice it to say that we are monitoring it closely, but it would be wrong to speculate on its impact before the case is concluded. Once it is, we will be happy to do so.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, I think it was, asked how we could reconcile the principles set out in the Prime Minister’s Munich speech, first on UK sovereignty and secondly on the ECJ. As the Prime Minister said:

“The Treaty must preserve our operational capabilities. But it must also fulfil three further requirements. It must be respectful of the sovereignty of both the UK and the EU’s legal orders. So, for example, when participating in EU agencies the UK will respect the remit of the European Court of Justice. And a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”.


The noble Lord, Lord Hannay, asked about justice and home affairs in the implementation period. We welcome the EU’s position that the UK should continue to participate in existing justice and home affairs measures where it has opted in. We also want to ensure that the UK and the EU can take new action together against unforeseen incidents and threats during that period. For those reasons, we want to be involved in new measures introduced during implementation where that is appropriate. He also asked about the Prime Minister’s speech in Munich. I confirm that she was talking about all the justice and home affairs measures he mentioned—the EAW, ECRIS, Europol and all the other appropriate acronyms.

The noble Baroness, Lady Ludford, asked about the European arrest warrant and about the chance of a successful outcome compared with Norway. We value our co-operation through the EAW as it provides a faster and cost-effective way of handling extradition and helping us tackle cross-border criminality. With regard to Norway, our starting point for negotiations on future co-operation will be different from that of either Norway or Iceland, where a bilateral agreement is also in place. Of course, our starting point is different from theirs in so far as our extradition arrangements will be fully aligned with those of the EU at the point of our exit since we operate the same tool. That was not the case with Norway and Iceland when they joined.

The noble Lord, Lord Thomas, asked where we are in the negotiations and who is doing them—which the noble Lord, Lord Adonis, was also interested in. The Secretary of State for Exiting the EU is responsible for conducting negotiations in support of the Prime Minister. He is supported by the core negotiating team, which is made up of senior officials from a range of government departments. In response to his question about contacts, officials are engaging now and constantly with EU counterparts on a range of issues—but I come back to my earlier point that it would not be appropriate to give a running commentary on these discussions. We approach the next round of negotiations with optimism.

[Lord Thomas of Gresford]

Can the Minister tell us if the European Union has appointed anybody to represent the 27 other countries in conducting the other side of treaty negotiations?

[Lord Callanan]

Michel Barnier is the EU chief negotiator. I thought that that was fairly obvious.

Finally, the noble Lord, Lord Adonis, asked about no deal. Of course, we approach these negotiations not expecting failure but anticipating success. We are confident that continued practical co-operation between the UK and the EU on law enforcement and national security is very much in the interests of both sides, so we approach these negotiations anticipating success. We do not want or expect a no-deal outcome. However, a responsible Government should prepare for all potential outcomes, including the unlikely scenario in which no mutually satisfactory agreement can be reached. That is exactly what we are doing across the whole of government. The UK uses and benefits from a range of international information-sharing tools in the area of security and law enforcement, which are by no means limited to EU mechanisms but include bilateral and multilateral channels, including Interpol and the Council of Europe.

I hope I have answered all the questions—

[Lord Thomas of Gresford]

Do I understand the Minister to be saying that the people conducting the trade negotiations will deal with the security stuff as well? Is that what he is saying? Are there no lawyers on the other side to conduct the negotiations on behalf of those 27 other countries? What is the situation?

[Lord Callanan]

There are lead negotiators on each side but they are supported by a whole range of officials and Ministers from various departments. David Davis is our negotiator, Michel Barnier is the EU’s negotiator, and they have different members in each of the teams—

[Lord Thomas of Gresford]

But is the withdrawal agreement the same thing as the treaty or are they separate?

[Lord Callanan]

No, the treaty will be a separate piece of legislation when we negotiate it. I hope I have tackled most of noble Lords’ questions and they will be able to withdraw or not move their amendments.

European Union (Withdrawal) Bill

Debate between Lord Thomas of Gresford and Lord Callanan

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Callanan]

I am not quite sure I understand that point. I do not think we can give that assurance at the moment. I will have to have a separate discussion with my noble friend on that point.

[Lord Thomas of Gresford]

What happens if there is no agreement tomorrow? Will the Government’s amendment, the one that they are putting to the Joint Ministerial Committee tomorrow, be published so that we can look at it and so that informed opinion throughout the country, throughout Wales, throughout Scotland, can look at it and comment on it and so that we can see where the problem is? At the moment, it is all obscure. As my noble and learned friend said, there is no transparency whatever in this process. What happens if there is no agreement tomorrow?

[Lord Callanan]

As I said, we will be bringing forward the amendment at the same time that Members of this House have an opportunity to view it. The public at large will be able to comment on it and discuss it, and I am sure there will be extensive comment on it in the media at that time. The reason we have not published so far is that we want to preserve space for discussion and to try to have the discussions with our colleagues in Scotland and Wales and with officials in Northern Ireland in as confidential an atmosphere as possible. The discussions are positive and are proceeding apace. I cannot guarantee that there will be agreement, but we want that agreement and are working to it. We have compromised on many aspects. As soon as we are able to, we will share it with this House. We will definitely be producing an amendment before Committee. I totally understand noble Lords’ frustrations, but we are endeavouring to produce a solution to this difficult issue as quickly as possible.

Brexit: Revocability

Debate between Lord Thomas of Gresford and Lord Callanan

Wednesday 20th December 2017 Lords Chamber

[Lord Thomas of Gresford]

To ask Her Majesty’s Government whether they will publish the advice they received from the Attorney-General on the revocability of the notice to the European Council that was given by the Prime Minister on 29 March 2017, in accordance with Article 50(2) of the Treaty on European Union, of the United Kingdom’s intention to withdraw from the European Union.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

As the noble Lord will know, there is a constitutional convention set out in the Ministerial Code that the Government do not comment on the fact of, or content of, advice that may or may not have been given by the law officers. The Government have been clear that as a matter of firm policy our notification to leave the European Union will not be withdrawn.

[Lord Thomas of Gresford (LD)]

Although I am not surprised by that Answer, I thought that the Government might at least have allowed parliamentarians to view this opinion in some dark corridor at the far end of Whitehall. This is a very important issue. We have been advised many times by the noble Lord, Lord Kerr, that the notification is revocable. Yesterday, Mr Barnier said that it is revocable but only with the consent of the 27 other countries. Last week, Sir Oliver Letwin claimed that if Dominic Grieve’s amendment went through and Parliament did not agree on the deal, the effect would be for us to remain in the European Union and not to fall out. This is a very important question. What is the Government’s stance or is it their policy to keep this issue fuzzy so that the people of this country are misled and deceived by it?

[Lord Callanan]

I am of course sorry that the noble Lord is disappointed but this is a historic convention, also recognised in Erskine May, which states:

“By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the Law officers of the Crown is not disclosed outside government”.