Brexit: Proposed UK–EU Security Treaty (European Union Committee Report)

Baroness Ludford Excerpts

Wednesday 16th January 2019 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I too thank the Lords European Union Committee and specifically its Home Affairs Sub-Committee for this report. I share the admiration expressed for that sub-committee and for its excellent chairman, the noble Lord, Lord Jay of Ewelme. I can be objective because I am a member not of that sub-committee but of its sister sub-committee on justice. I worked on security and criminal justice for 15 years in the European Parliament, as did the noble Lord, Lord Kirkhope. In fact, my last work in the European Parliament was a report calling for reform of the European arrest warrant, which, unfortunately, has not been progressed.

The bottom line is that we will be less safe if we Brexit at all—not only with no deal. The European Union Committee said in its report on the withdrawal agreement and political declaration that,

“the UK will necessarily cease to be part of the EU’s law enforcement and security ecosystem”.

That is a good term because the whole thing hangs together. The reasons for this loss of capacity are the Government’s red lines against free movement and ECJ jurisdiction. So this reduction in safety is the fault of the Government.

The police—including Lynne Owens, the director-general of the National Crime Agency, and Metropolitan Police Commissioner Cressida Dick—have been outspoken in their views. Cressida Dick was misreported because the headlines said that she was worried about a no-deal Brexit but, where her remarks covered Brexit at all, she said:

“We will have to replace some of things we currently use in terms of access to databases, the way in which we can quickly arrest and extradite people, these kinds of things, we’ll have to replace as effectively as we can. That will be more costly, undoubtedly, slower, undoubtedly and, potentially, yes, put the public at risk”.


Those remarks covered any kind of Brexit.

Malcolm Chalmers of the Royal United Services Institute said:

“The UK will have to make much harder choices between sovereign control and operational effectiveness than it has had to take while still a member state. In security terms, the full benefits of membership—combining both shared decision-making and operational effectiveness—cannot be replicated under the proposed deal”.


The noble Lord, Lord Browne, was right to ask the Government what aspect of our safety they will sacrifice.

The political declaration is vague and could be interpreted narrowly or more broadly in terms of the closeness of co-operation. The chances of getting a security partnership concluded and ratified before the end of transition, even if that is extended by two years, do not look good as in all likelihood it will be a mixed agreement, requiring ratification in all member states.

In her Florence speech in September 2017 the Prime Minister expressed the ambition for a “bold new strategic agreement” on security, law enforcement and criminal justice co-operation which would build on,

“our shared principles, including high standards of data protection and human rights”.

Yet the Government she leads refused to incorporate the Charter of Fundamental Rights because of an ideological prejudice against it. When they implemented the European investigation order, instead of referencing the charter as grounds for refusing an EIO, they substituted the ECHR. I have mentioned this several times because I think it is a breach of the EIO; it is a wrong implementation. However, it will not be high on the Commission’s to-do list.

Now there has been an exchange of letters from which I can quote because the correspondence has been published. The Lords European Union Committee, via the Justice Sub-Committee, wrote to the Government about the discrepancy between the summary draft of the political declaration published on 14 November and the final version. The draft referred to how the relationship would be underpinned by:

“Reaffirmation of the United Kingdom’s commitment to the European Convention on Human Rights”,


and said that in respect of law enforcement and criminal co-operation there would be,

“continued adherence to the ECHR and its system of enforcement”.

However, the final document diluted these formulations, saying that the UK would merely agree to,

“respect the framework of the European Convention on Human Rights”,

although the part on JHA retains the phrase about continuing adherence to giving effect to the ECHR.

However, I am afraid that we have had a reply from the Ministry of Justice which is less than reassuring. It talks about how the Conservative manifesto,

“committed to not repealing or replacing the Human Rights Act while the process of EU exit is underway”.

It continues:

“It is right that we wait until the process of leaving the EU concludes before considering the matter further in the full knowledge of the new constitutional landscape”.


That begs the question of what is meant by,

“until the process of leaving the EU concludes”.

I am not sure what date that is supposed to be. However, the point is that this does not rule out abolishing the Human Rights Act. That ball is still in play in the internal dialogue in the Conservative Party.

Therefore, having refused the charter, saying that all our weight is on the ECHR, the final version of the political declaration talks only about respecting the framework of the ECHR, and now we are told that the Government could still abolish the Human Rights Act. This will undermine potential co-operation on law enforcement and the safety of British citizens, all because of ideological fixations. I raised this matter in the Chamber—it was that which prompted the correspondence. Once again, can the Minister give us a commitment that the Government will not abolish the Human Rights Act?

The UK has declined to take part in various fair trial measures ensuring procedural rights for suspects and defendants, including, bizarrely, the right to a lawyer, where we have the gold-standard provisions in Europe. When Mr Grayling was Justice Secretary, he told me that the UK would not opt in because we already provide a high standard, but what about the idea of encouraging others to do so?

At present, the protection of the charter—for instance, for someone against whom an EAW is issued—compensates for some of those omissions. However, the Government have refused to retain the charter, so this could well have operational consequences. The basis on which we make human rights guarantees in the context of the European arrest warrant, the EIO and so on, switches from the charter to the European Convention on Human Rights, but now that is undermined as well. The Government are being extremely short-sighted.

Others have mentioned that, although the political declaration talks about passenger name records and Prüm—of course, Prüm started as an intergovernmental instrument, so perhaps it is not so surprising that it is name-checked—there is no mention of the SIS or ECRIS. The political declaration talks only of arrangements that “approximate” those EU mechanisms and does not even offer the possibility of access, with the caveat that arrangements will be made only,

“so far as is technically and legally possible”.

The Government rail against this sometimes but there are rules. If you are an EU member state, you have certain rights to be covered by EU instruments. If you are not, things are a great deal more difficult. I remember the precedent of the Schengen visa information system. It seems extraordinary now but in 2005, as a Brit, I was permitted to be the European Parliament’s rapporteur on that measure. The UK envisaged some kind of pipeline into the visa information system but was denied access on the grounds that the UK does not participate in the migration aspects of Schengen. Therefore, there are plenty of precedents for saying, “You either sign up fully or you are in a different category”.

We all know that we will need a data adequacy decision covering both commercial data exchanges and law enforcement. However, to do that, the UK will need to agree to an ECJ role in resolving disputes. We also know that a dim view may well be taken of the degree of surveillance in this country. Extraordinarly, the Home Secretary has described SIS II as “nice to have”. Can the Government tell us whether they want access to SIS II or whether it is just some decorative add-on that is not terribly important? If we have to fall back on the European Convention on Extradition, drawn up by the Council of Europe in 1957, can they also tell us how many countries refuse to extradite their own nationals? There does not seem to be precision on the numbers; there could be 18, 19 or 22—in any case, there are a lot.

Finally, I was interested to see yesterday, among all the excitement in the other place, that one item went through without debate on a UK opt-in to the new Eurojust regulation under Protocol 21. However, the political declaration offers only the prospect of working together,

“to identify the terms for the United Kingdom’s cooperation via Europol and Eurojust”.

The noble Lord, Lord West, said that we will not have another director of Europol if Brexit goes wrong. We will never have another director of Europol if we are not a member state. We will not be able to request the setting up of joint investigation teams in Eurojust and so on.

The Government seem to believe in British exceptionalism and British specialness and think that they can buck the ecosystem of EU structures and so on. Why do they think they can do better than Denmark on Europol? Why do they think they can do better than Norway in regard to the European arrest warrant? What basis is there for the Government’s belief? Is it any more than this rather superior attitude of British specialness?