Brexit: European Arrest Warrant (European Union Committee)

Baroness Kennedy of Shaws Excerpts

Thursday 8th February 2018 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, it is a great privilege to take part in this debate. I thank the noble Lord, Lord Jay, for the wonderful work he did when the chairman of the European Union Select Committee was ill. He stepped into the breach and chaired the committee wonderfully, and I thank him for all his hard work. I also thank him for opening the debate so succinctly. I have great concerns about the loss that there could be for law enforcement if we do not find an adequate way of having judicial oversight of the European arrest warrant.

I will start by reminding noble Lords of why we have it. I have practised at the Bar long enough to be able to tell your Lordships that one of the great problems with extradition to places outside Europe is how long it takes. The procedures are such that people often wait for a very long time in custody. The process often involves delay—sometimes, it is alleged, deliberately. The procedures were never very efficient or effective. The Euro warrant was created for that reason: to make collaboration across Europe more effective.

When it was first introduced I posed questions and was anxious to be sure that it would operate with due process. But I have come to see its operation as being of huge significance in answering international cross-border crime. My heart has been changed in many ways by seeing how it has worked. The underbelly of the market, as we all know, is the black market. We have seen all the things that have benefited from the creation of markets, globally and of course across Europe. We have all the business of the electronic transfer of money and all the things that ease the connections that enable markets and trade to operate well.

However, I am afraid that there is also an awful lot of trade in bad things, including arms and drugs. There has been a much greater amount of this coming before our courts than there was when I was a young woman starting at the Bar. There are a large number of cases now that are being dealt with using the Euro warrant, for example involving trafficking across Europe in human beings, including women and children for different purposes. The trafficking is not just in arms and drugs but in extraordinary things such as fissile material, human eggs and babies for adoption. All manner of things happen involving cross-border crime.

Last year, for us, it involved 200 requests and returns of people here to stand trial, and one of the cases was a very significant trafficking case. But we have also had it in the other direction, in that we are able to get rid of people who are international criminals. This is one of the things that the general public have expressed concern about. There are people here who are criminals from other parts of the Europe, and this is an effective way of returning them to places where they can be brought to book for serious crimes. If only the general public had some sense of how important this has been, and of our collaboration with Eurojust. It is another of those issues. I have seen cases come up where someone is arrested in Germany and decisions are made very closely about whether it might be better to prosecute here or in that country, depending on whether evidential reasons mean the case might be better suited to Germany’s criminal justice system or ours. Those mutual arrangements that operate across Europe depend on reciprocity.

I would hate to think that we would have to recreate this in treaties with 27 countries, but putting it in place without having, at the apex, a place to which you can go when there is a dispute would be problematic. I received the Government’s response to the report today—it was a long time coming—which recognises that there is a challenge for the Brexiteers. What do they do about that? Everyone says, “Bring it all home”—but you cannot bring home things that depend on reciprocity. There has to be a court that is not of one or the other side in a dispute. What kind of court can it be? They are talking about all manner of arbitration systems, tribunal systems and so on, but we are dealing here with the liberty of the subject—something more pressing than trade arrangements or disputes where you fall out with your trading partner because they do not deliver the goods. This is about crime, and the consequences of crime are that people are put on trial and end up being sent to jail. So high standards come to bear in such cases, which is why you need a proper court.

I chair the European Union Justice Sub-Committee. We had before us recently the former president of the EFTA Court, who had just stepped down. I know that we have been looking at the possibility of the EFTA Court and having some docking arrangement that would mean that we could somehow make use of the facilities of the EFTA Court. But we should be clear that the EFTA Court does not deal with the Euro warrant, Eurojust or any of these criminal matters: it deals purely with trade disputes. The president made it very clear that that was absolutely not within the remit of the court. I asked him, as a very distinguished judge of many years’ experience dealing with matters across Europe—mostly trade disputes—what his view was about whether it would be possible for us to still have the benefit of being party to Eurojust and the Euro warrant without being part of the European Court of Justice. He said that in his view it was not going to be possible.

So I give a warning to those who are negotiating on our behalf that this is one of those problems where drawing a red line was absolute folly. It cannot be said strongly enough that we are not going to be able to get an agreement on this without accepting that the European Court of Justice is essentially the best arbiter for this when there are disputes, because it goes to the difficult question of states taking people’s liberty away from them. When we are dealing with high-level crime, where we want collaboration, we want to see people who are guilty of those crimes ending up in jail.

I emphasise to the House how important this issue is, and I hope that a message will be taken back. I think a prize for creative writing should go to whoever drafted this response; it contains a lot of blather but not an awful lot that is solid on what we are going to do about this problem. It is a wicked and difficult problem, and I am sorry that the Minister is going to have to reply to this because I am sure that he will not have the answer. I am telling your Lordships that the only answer is a proper court at the apex—and we already have one, and it is doing its job very well.