EU: Police and Criminal Justice Measures

Baroness Smith of Basildon Excerpts

Tuesday 9th July 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I have to say that I wonder if this is the Statement that the Home Secretary really wanted to make to the other place today. When we think of the rhetoric that we have heard on this issue, it is something of a surprise to hear today’s Statement, because the Home Secretary’s and the Government’s anti-European credentials have taken a bit of a battering. The rhetoric is still there, but common sense has appeared to force some moderation in action.

Last October, the Home Secretary confirmed that the Government’s “current thinking” was that the UK should opt out of all pre-Lisbon measures and rejoin them where it was considered in our national interest to do so. An example often used by the Government to explain this position is the European arrest warrant, as we have heard from the noble Lord this evening. The Sun newspaper was briefed on why the UK should reject it, the Prime Minister said it was “highly objectionable” and, just recently, the Government’s MPs voted, on a three-line Whip, against the Labour Motion that would have retained it. However, the Government now have to admit that it is effective and that, without it, criminals can evade justice. They could seek to evade British justice abroad and would be able to hide in the UK to evade the justice of other countries. I welcome the Government’s U-turn on this issue but there are still questions to be answered before we will be satisfied that public safety is not at risk.

I listened carefully to the Statement and have looked at the other documents but am not 100% clear what we are opting out of and why, and what impact that will have. I have not had the opportunity yet to read the 159 pages of the Command Paper but I am confident that the Minister has—I hope he has—and wanted to ask him a very specific question about the exact number of practical, workable and working measures that the Government are seeking permanently to opt out of. Of the 133 crime, law and order, and policing measures, the Government want to opt back in to 35. An additional seven have already been replaced and the Government have opted in. However, of the measures that the Government are seeking to opt out of: some are out of date and no longer in operation; some we have never used so we do not have to; others are agreements to co-operate, and my understanding is that the Government intend that co-operation to continue; and the Statement itself refers to measures that relate to minimum standards that we have already met or exceeded. With all of those, there is no impact or effect.

Other opt-outs include: a directory of counterterror officers that no longer exists; a temporary system for dealing with counterfeit documents that has already been replaced; a bundle of measures applying to Portugal, Spain and Croatia that do not even apply to the UK; and a number of measures relating to extinct manuals, specialist handbooks et cetera. In some ways, dealing with these is a useful tidying-up measure, but it is hardly an impressive list of repatriation of powers. I have a very specific question for the Minister, knowing that he has read the document: how many of the measures that the Government want to opt out of permanently are relevant to the UK and currently being used, and what impact will their removal have? I look forward to the answers from the noble Lord as, having heard the Statement, I really have no idea.

The Government now accept that the 35 measures that they want to opt back into are essential. If there is an opt-out, there must be a quick opt-back-in. Can the noble Lord confirm that the Government have secured a guarantee that we can opt back in to these important measures? If not, will the Government still opt out without such a guarantee? What timescale does the noble Lord envisage from the opt-out until the process of opting back in is completed? Are the Government seeking to amend any of the 33 measures, other than the European arrest warrant, and what are the implications and consequences if we fail to opt back into any of the measures, including financial consequences? Does the Minister really believe that the only way of making changes is to opt out and then opt back in? I find that strange when the Government refused to implement the European supervision order relating to the European arrest warrant, which they could have done long before now.

If any opt-back-in is not immediate, it is essential that there are transition measures. For example, the European arrest warrant is a legal framework that allows countries to extradite. Transition measures would have to be legally robust to ensure the satisfaction of the courts and lawyers dealing with any extradition. Given that pre-European arrest warrant transition arrangements have expired, will there be separate transition measures for all countries currently covered by the European arrest warrant? How long will negotiations take and are we at risk of a time gap during which criminals will be able to hide from UK justice and hide in the UK from justice in other countries? What will happen to the existing European arrest warrants where a person has not yet been arrested but there is a warrant out for their arrest? Will the warrants just lapse with the opt-out, allowing wanted criminals to evade justice from the UK overseas or leaving foreign criminals in the UK without the powers to remove them? The Statement also says that the Home Secretary,

“will amend our own Extradition Act to ensure that people in the UK can be extradited under the European arrest warrant only when the requesting state has already made a decision to charge and a decision to try”.

Can the noble Lord confirm whether this will apply to foreign citizens in the UK as well as to British citizens? Is it likely to make it harder to extradite those wanted for questioning for crimes in their own country?

There remain so many questions on the impact and the detail that I will not detain the House with another list which I could easily provide this evening. Genuine scrutiny, at which your Lordships’ House excels, will be so important in this debate. I hope that the Minister does not say this evening that these issues are for further discussion, because we are running out of time; he smiles at me, so perhaps that is the note that he has been passed. A vote will take place in the other place in less than a week, and the matter will then be brought to your Lordships’ House. The Government must have worked out the detail by now. We need that detail to inform our decision-making in your Lordships’ House. I hope that the Minister is able to respond to the points that I have raised, and I greatly look forward to his doing so.

[Lord McNally]

I am grateful for the noble Baroness’s response to the Statement. I noted that she thought that it had common sense and moderation. Indeed, there were times during her response to the Statement where there was a suggestion that we had shot her fox, in that all the disasters to which she was hoping to point—about not taking note of national security and effective policing—are not there. The Statement of my right honourable friend the Home Secretary puts those matters right to the fore, as is demonstrated in the list that we have put before the House today.

There was hardly a hint that this little problem was left by the Labour Party’s negotiators for the Lisbon treaty. As the Home Secretary mentioned in her own remarks, the then Government did precious little to address these issues while in office. We therefore make no apologies for having used our time in office to look at these matters in detail. My point when we were discussing this at Questions the other day was that they are serious issues that deserve proper and serious consideration. The document published today, Command Paper 8671, is a sign of the candour and transparency with which the Government intend to approach this matter. The document contains not only the full list of the measures with an explanation of the protocol under which they have been produced, but also six Explanatory Memoranda from various concerned departments, which we hope will be of help to both Houses in the debates to come.

I make no apologies for our now embarking on some interesting negotiations. We have taken the matter seriously and have produced a list which anybody objectively looking at the exercise will see goes to the core of the issues left by Protocol 36.

I have just been told that we published five Explanatory Memoranda, not six—stop press.

[Baroness Smith of Basildon]

I hoped that the noble Lord had been passed answers to the questions I had asked him.

[Lord McNally]

I am answering the questions. For example, the noble Baroness asked whether foreign citizens charged in the UK would be safeguarded. Yes, the safeguards will apply to all those subject to the European arrest warrant. The noble Baroness asked on what basis the decisions would be taken. The Government believe that we should exercise the opt-out and then seek to rejoin the measure where it is in the national interest to do so. The Government have considered the impact of each measure on public safety and security, whether practical co-operation is underpinned by the measure and whether there would be a detrimental impact on co-operation if we pursued it by other mechanisms. The impact of the measures on civil rights and liberties has also been considered.

The noble Baroness asked me if I had done a word count on the various issues. We have said that we intend to opt in to 35. As she says, a number—we think abut 14—of the original list have been repealed and replaced. There are about another 20 measures that retain the minimum European standards. However, the noble Baroness’s kind of quizzing approach really misses the point of what this exercise is about. Through today’s Statement, the Government have sent a clear message that we have addressed the problem left by Protocol 36—which would have been faced by any British Government and which the previous Government showed little enthusiasm for addressing—in a very practical way that will give both Houses of Parliament the time and the opportunity for input into negotiations which the Government will pursue with due seriousness and the intent of success.