Brexit: European Arrest Warrant (European Union Committee)

Baroness Ludford Excerpts

Thursday 8th February 2018 Lords Chamber

[Baroness Ludford (LD)]

My Lords, it is a privilege to follow the noble Lord, Lord Jay of Ewelme, and the noble Baroness, Lady Kennedy of The Shaws, and I completely agree with everything that they have said. I will speak nonetheless. This debate is timely, as the Cabinet’s Brexit committee was scheduled to have a discussion on Brexit-related security issues. Can the Minister tell us more about that?

The Government face a conundrum on security as difficult as that which concerns the Irish border: how to have seamless operations while standing outside EU structures and measures. The Government have fully recognised the value of the European arrest warrant. Their response acknowledges that, as did the Prime Minister in her Florence speech and indeed when as Home Secretary—with a great deal of pressure from her Liberal Democrat coalition partners, notably from the police and parliamentarians in this House—she opted back in three years ago to a range of law enforcement measures. The current Home Secretary has called the European arrest warrant an,

“effective tool that is essential to the delivery of effective judgment on … murderers, rapists and paedophiles”,

and stresses that it is a “priority” for the Government,

“to ensure that we remain part of the arrangement”—[Official Report, Commons, 6/3/17; col. 550.]

that is, the EAW arrangement. The Director of Public Prosecutions, Alison Saunders, has pointed out that up to 150 extraditions to the UK in recent years would not have been possible without the European arrest warrant system. She added:

“It’s three times faster to use an EAW and it is four times less expensive for us to be able to do that as well”.


The protocol 36 decision three years ago on the mass opt-back-in that I have just referred to was explicitly taken in the context of an acceptance of the jurisdiction of the European Court of Justice, so it is something of a mystery why this has become such a symbolic problem for the Brexiteers—one that, unfortunately, has been taken over by the Government. There are numerous problems in departing from the European arrest warrant. Going back to a 60 year-old Council of Europe extradition convention would mean much lower processes based on diplomatic procedures and political decisions. Even that assumes that other member states would be willing to resurrect this old convention; some may have rescinded it in their national laws. It would bring back the danger of political exceptions and difficulties in extraditing terrorist suspects. The noble Baroness, Lady Kennedy, referred to the need for reciprocity. We cannot unilaterally amend the Extradition Act 2003 to designate EU countries as Part 2 countries rather than Part 1, because you cannot do things like that just on your own.

The Norway/Iceland agreement with the EU is often cited as a prototype, but that took years to negotiate and is still not in force. Sir Francis Jacobs, former advocate-general of the court, told the committee that that was less than satisfactory and may be difficult to attain. The EFTA Court has been mentioned but, notably, its jurisdiction was not extended to that agreement because it does not have a criminal-law focus or expertise. The Norway agreement refers to CJEU case law when there is a duty to keep it under review, but even that does not provide the same guarantee of consistency as supervision by the Luxembourg court. So there are question marks over any kind of bilateral extradition agreement with the EU, even assuming that the UK could negotiate one.

I do not need any reminders of the flaws in the European arrest warrant. When I was MEP for London I dealt with the case of Andrew Symeou, and there have been some huge abuses in his case. There used to be a lot of problems with EAWs for minor offences, notably from Poland, but I think there has been great progress and considerable reform. My last act as an MEP was to do a report calling for the reform of the EAW, and I am sorry the European Commission has not thought fit to follow it up. Some of the changes that we wanted, such as a test of proportionality before an EAW was issued and the ability to decline execution in the receiving country on the grounds of a breach of the Charter of Fundamental Rights, have been put into the European investigation order—I shall mention this later—so those reforms have been taken up in that future measure. The EIO itself takes some of the strain off the European arrest warrant because it can call for evidence—for instance, a witness statement, possibly by video—without extraditing the person.

The government response, which has been referred to, appears guilty of muddled thinking because it says that,

“disputes can be resolved fairly and efficiently”,

but it thinks about that in very much state-to-state terms, whereas another part of the response recognises the importance of the EAW on the basis of,

“mutual recognition of judicial decisions”.

That is the core difference between the EAW and international co-operation. It seems that the Government either fail or are unwilling to recognise that the nature of co-operation within the EU in the criminal and policing field is qualitatively different from diplomatic or political co-operation, which is why you need the judicial umbrella. An EAW is not a political process.

As the noble Baroness, Lady Kennedy, mentioned, the European arrest warrant and other crime measures bring into question the liberty of the individual, where the individual needs the opportunity to enforce their rights. They cannot petition the Government to take up the matter with another member state if their rights are infringed in that context. In evidence to the Justice Sub-Committee the noble and learned Lord, Lord Thomas of Cwmgiedd, said:

“It would be perfectly possible to agree an extradition treaty with the EU, but the European arrest warrant operates in a fundamentally different way. Unlike treaties, it is premised upon judicial co-operation. It is very difficult to see how, if an instrument operates on that basis, it can do so without some body at its apex to determine the rules by which it works”.


I think we all want to hear from the Government how they are going to square that circle.

The Government also need to tell us how they are going to ensure access to EU databases that complement cross-border judicial co-operation measures such as the EAW. For instance, the Schengen information system has a database of outstanding European arrest warrants, so it is necessary to access that data. That is why the push is coming from many of us in this House for the Government not to ignore the Charter of Fundamental Rights, because it is crucial to get an adequacy decision from the European Commission.

The noble Lord, Lord Jay, mentioned the Irish case last week where the anticipated failure of the British Government to entrench the Charter of Fundamental Rights in domestic law was the reason for refusing to execute a British arrest warrant. The relevance of the charter is not just about fluffy issues of rights and justice—although some of us think those are essential—it is a matter of hard security. If we do not entrench rights and liberties, including the charter, in our domestic law, we will not be able to catch criminals. We will go back to having the costa del crime. Please will the Government spell out how they expect to secure a comprehensive agreement on security, law enforcement and criminal justice co-operation without subscribing to EU structures and rights, including the procedural rights to which the noble Lord, Lord Jay, referred, which are the foundations that strengthen the whole system of mutual recognition?

The Government say that they want to avoid compromising the security and safety of people in the UK and European Union, but at the same time they want to make the ECJ a red line. This is a circle which cannot be squared. As the noble Lord, Lord Bridges, told the Government last week in our debate on Second Reading of the EU withdrawal Bill, the Government have to choose. I suggest that for a Conservative Government to choose to be soft on crime would not be a happy place for them to end up.

--- Later in debate ---

[Lord Young of Cookham (Con)]

My Lords, perhaps I may take the opportunity first to thank the EU Home Affairs Sub-Committee for producing its report, Brexit: Judicial Oversight of the European Arrest Warrant. I am grateful to all those who have spoken in the debate, and in particular to the noble Lord, Lord Jay, for securing it. The Government welcome the next inquiry, which he referred to in his opening remarks. The noble and learned Lord, Lord Brown, implied delicately that I am a newcomer to this subject and as such I welcome the clarity of the report, its sharp focus on the key issues, and the outline in the concluding paragraphs of a possible way forward. During the debate other noble Lords, including the noble Lord, Lord Marks, suggested their possible solutions and ways forward. However, I am a former Member of Parliament, and some of my constituents were on the receiving end of EAWs and occasionally sought my advice as to how they might possibly evade their reach, and of course as a member of the Cabinet I sat around the table when we opted back into the EAW in 2015, so I am not wholly unfamiliar with the issues raised today.

A range of views have been expressed across the Chamber, but I am reassured by the broad consensus across the House, first, that the EAW is the most effective means available to apprehend individuals wanted by other member states and to ensure that those who have fled the UK are returned to face justice; and, secondly, that the Government should look to sustain as close a partnership as possible with our EU neighbours on security, law enforcement and criminal justice matters after we leave the EU, and that effective extradition arrangements should form part of that new relationship. A number of noble Lords, including the noble Lord, Lord Jay, quoted the Home Secretary, who said that she regarded the European arrest warrant as “an effective tool” helping us to deliver,

“effective judgment on … murderers, rapists and paedophiles”—[Official Report, Commons, 6/3/17; col. 550.]

and that it is a “priority” for the Government to ensure that we can maintain those arrangements. As the noble Lord, Lord Hannay, and others said, these are arrangements of major importance to the country.

In the future partnership paper that we published on 18 September last year, we indicate that we will look to reach an agreement with the EU that provides for practical operational co-operation, facilitates data-driven law enforcement and allows multilateral co-operation through EU agencies. We believe that such an agreement would be in the interests of the EU and its member states, as well as the UK. We are confident that our EU partners share our view on the importance of reaching an agreement that protects the safety and security of citizens and upholds justice in the UK and across the EU. The guidelines adopted by the EU 27 at the December European Council reaffirmed their readiness to,

“establish partnerships in areas unrelated to trade and economic cooperation, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.

Previous examples of the EU’s co-operation with third countries—which is what we would be post Brexit—on security, law enforcement and criminal justice have so far generally been limited to agreements covering individual measures, such as Europol or passenger name records, but our assessment is that other approaches are legally viable. The UK’s geographical proximity to its European neighbours, the volume of cross-border movements between the UK and the EU—including, for the purposes of this debate, the volume of extraditions to and from the UK, which the committee highlights in its report—as well as the high degree of alignment in the scale and nature of the threats that we face, call for a new, more ambitious model for co-operation than those that currently exist.

With this in mind, the Government see a strong case for developing a new, dynamic treaty that provides a comprehensive framework for future security, law enforcement and criminal justice co-operation between the UK and the EU. This treaty would provide a legal basis for continued co-operation between the UK and the EU in this area.

To function properly we need dispute resolution, as referred to by many noble Lords during the debate. An arrangement along the lines that we have proposed will need to be supported by a means of resolving any disputes between the UK and the EU. It would be in the interest of both sides to ensure that the rights and obligations contained in the agreement can be relied upon, that both parties have a common understanding of what the agreement means, and that disputes can be resolved fairly and efficiently. This has been to some extent at the heart of the debate.

Dispute resolution mechanisms are common in EU third-country agreements and other international agreements, including those agreed by the UK. A number of examples are set out in the future partnership paper Enforcement and Dispute Resolution, which the Government published last August. They illustrate the range of ways in which the parties to international agreements, including the EU, have obtained assurances that obligations in those agreements will be enforced, that divergence can be avoided and that disputes can be resolved.

[Baroness Ludford]

I apologise for interrupting the Minister, but how is that relevant to an individual disputing the execution of a European arrest warrant? How does state-to-state dispute resolution apply in the circumstances of a judicial process?

[Lord Young of Cookham]

I will come in a moment to the distinction between how country-to-country agreements are enforced and how individuals enforce any rights they might have in the countries concerned.

One common feature of most international agreements, including all agreements between the EU and a third country, is that disputes are not resolved by giving the courts of one party direct jurisdiction over the other. Noble Lords will be aware that one of the Government’s key commitments in leaving the EU, as set out in our future partnership paper Enforcement and Dispute Resolution, is that we will bring about an end to the direct jurisdiction of the CJEU in the UK. I know that that is particularly unpalatable to the noble Lord, Lord Marks, but it is a clear statement of government policy.

Previous examples of the EU’s co-operation with third countries on security, law enforcement and criminal justice demonstrate that direct CJEU jurisdiction is not a requirement for such agreements. Even the more ambitious and strategic relationships that the EU has adopted—for example, the Schengen association agreements and the European Economic Area agreement—do not involve direct jurisdiction of the Court of Justice of the European Union in those third countries.

There is no precedent, and indeed no imperative driven by EU, UK or international law, which demands that enforcement or dispute resolution of future UK-EU agreements should fall under the direct jurisdiction of the CJEU, or indeed that UK courts should have direct jurisdiction over the EU. However, I agree with the noble Baroness, Lady Kennedy, and others that if you do not have the CJEU, you need some other mechanism for resolving disputes. We will therefore look to engage constructively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU in underpinning the effective operation of a new partnership in this area. We do not underestimate the complexities involved in negotiating our future relationship with the EU, but we are confident that there is recognition on both sides of the importance of addressing them and reaching a robust agreement.

The noble Baroness, Lady Ludford, mentioned some of the problems with the EAW, and the noble and learned Lord, Lord Brown, touched on them. Noble Lords may recall that, in 2014, we reformed the operation of the EAW to make sure that it worked effectively and better protected UK citizens. As has been mentioned, individuals will not now be extradited where a case is not trial-ready or where it is disproportionate so to do.

The noble Lord, Lord O’Neill, put it graphically when he said that the EAW has enabled us to get rid of the bad guys we do not want and get hold of those we do. The EAW has enabled the UK to surrender more than 10,000 individuals accused or convicted of a criminal offence to other member states, including those accused or convicted of murder, child sexual offences, terrorism or, as the noble Baroness, Lady Kennedy, mentioned, human trafficking. During the same period, the EAW has been used to surrender more than 1,400 individuals back to the UK.

As the committee noted, we are a net contributor to the EAW system: for every one person arrested on a UK-issued EAW, the UK arrests eight on EAWs issued by other member states, so in the balance of trade of those under arrest, we are net exporters. For all these reasons, agreeing effective extradition arrangements will be an important part of negotiations and of mutual interest to both the UK and member states.

Perhaps I may touch for a moment on transitional arrangements, which the committee also raised in its report and were referred to in our debate. The Prime Minister was clear in her Florence speech that an implementation period should be based on the existing structure of EU rules and regulations, and that the UK would take part in existing security measures during such a period. The Prime Minister was also clear that we may start off with the CJEU still governing the rules we are part of for that period. We therefore do not anticipate the cliff edge that the committee was keen we should avoid and which was touched on during our debate. We hope that we do not see the ghost of Banquo, though I am sure he would be familiar with the panelled rooms of this stone building. That commitment was confirmed by the Minister for Immigration, Nick Hurd, when he gave evidence to the Home Affairs Select Committee on 23 January. As I said a moment ago, it is in the interest both of the UK and the EU to agree the precise terms of the implementation period as quickly as possible, and we are confident that we will come to an agreement on this in March.

On the case of O’Connor, I am somewhat limited in what I can say as this is a live case. We are monitoring what is going on and we cannot speculate on the outcome. My understanding is that the Irish Supreme Court has yet to formally refer the matter to the CJEU or, indeed, to determine what the question should be. We will continue to work with our counterparts in the EU to ensure that those who have fled justice in the UK return to face it.

A number of noble Lords mentioned the time it took to negotiate the extradition agreement between Norway and Iceland and the EU. With respect, we are starting from a slightly different position, in that they started from a position of total divergence whereas we are starting, in this case, from a position of total alignment. The starting point for negotiations will be different from that of either of those countries: we start, as I said, from a position of total alignment since we operate the same EU tool, the EAW, and that was not the case for Norway or Iceland.

The noble Baroness, Lady Kennedy, asked whether we would be able to get an agreement on this without accepting the CJEU as ultimate arbiter. I have made it clear that we do not think that that is acceptable and I outlined other scenarios where that was not the case. Indeed, the EU has extradition agreements with a range of third countries, as noted in the committee’s report. None of those involves the CJEU having jurisdiction in those third countries, nor is there another common court between the parties, although I note that in our debate there was a very strong view that there should be some judicial oversight over how disputes are resolved.

Where agreements between the UK and EU give rise to rights or obligations for individuals—the case raised by the noble Baroness, Lady Ludford—those rights or obligations will be enforced by the courts in the UK, and ultimately by the UK Supreme Court. Individuals operating within the EU should similarly be provided with means to enforce their rights or obligations through the courts of the remaining 27 member states, with interpretation by the CJEU where that is appropriate. On facts and figures, table 1 in paragraph 10 has some key statistics, but if the noble Earl, Lord Kinnoull, wants more granularity I would be more than happy to provide that for him.

There was a comment about the Charter of Fundamental Rights. The noble Baroness, Lady Ludford, will have heard what my noble friend Lord Callanan said in winding up the debate on the withdrawal Bill last week. Our intention has always been that, in itself, not incorporating the charter into UK law should not affect the substantive rights that individuals already have, because the charter was never the source of those rights.

I should emphasise that the Government are committed to maintaining and strengthening the co-operation that keeps all European citizens safe, a point that noble Lords have made, and that the desire to do what is necessary to keep our people safe is not one-sided. My ministerial colleagues have spoken to their counterparts in other EU countries and I am reassured to hear that there is a shared understanding of the importance of effective, ongoing co-operation. For our part, we have made clear that the UK’s responsibilities, as a good neighbour, for the security of European citizens as well as our own, will remain on leaving the EU. We will be looking for a future partnership that ensures that those responsibilities can be met.

We recognise the challenges around negotiating a new relationship, including those around designing a new mechanism for resolving disputes between the UK and the EU. The Government are grateful to the committee for its report and its observations about the complexities involved in negotiating new arrangements. We are committed to addressing them and ensuring that we can continue to uphold justice in the UK and across the EU. I reiterate my thanks to the noble Lord, Lord Jay, and to all noble Lords who have taken part in this afternoon’s debate.