Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019

Baroness Williams of Trafford Excerpts

Tuesday 12th March 2019 Grand Committee

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[Baroness Williams of Trafford]

That the Grand Committee do consider the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019.

Relevant document: 17th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the Committee will be aware that the Government are preparing for all scenarios relating to the UK’s withdrawal from the EU, including the scenario in which the UK leaves the EU without a deal at the end of this month. As part of these preparations, the Government are bringing forward a programme of secondary legislation intended to ensure that there is an effectively functioning statute book on exit day. The instrument forms part of that programme of secondary legislation. It addresses deficiencies in our domestic statute book that would arise if we leave the EU without a deal, focusing in particular on deficiencies in security, law enforcement, criminal justice and some security-related regulatory systems.

By way of context, the UK currently participates in a number of EU tools and measures that support security, law enforcement and judicial co-operation in criminal matters—some of which, like the European arrest warrant or Europol, will be familiar. We also participate in a number of security-related EU regulatory regimes relating to firearms, drug precursors and explosive precursors. Should the UK leave the EU without an agreement at the end of the month—the no-deal scenario—the UK’s access to those tools and measures would cease.

At the same time, the UK would cease to be bound by those security-related EU regulatory systems. This decoupling would occur as a result of the UK having withdrawn from the European Union after the Article 50 notification not as a result of the provisions found in this instrument. It is important to be clear that the regulations play no part in bringing about the UK’s withdrawal from the EU; rather, the purpose of the instrument is to make amendments to the UK’s domestic statute book, including retained EU legislation, to reflect a new situation. The changes we are making in the instrument are the ones we cannot, or should not, avoid in the event of no deal. The regulations do not contain significant policy choices.

Against this backdrop, the regulations will do three main things. First, they will revoke or amend retained, directly applicable EU legislation and domestic legislation in the areas of security, law enforcement, criminal justice and some security-related regulatory systems. This will ensure that the statute book continues to function effectively in a no-deal scenario. It is important to emphasise that where the regulations revoke retained EU law or connected domestic law, this is not expected to have a practical real-world effect because the underlying EU instruments would cease to be available to the UK upon withdrawal from the EU in any event. For example, in a no-deal scenario, our membership of Europol will end on 29 March by virtue of the UK ceasing to be an EU member state rather than as a result of the retained Europol regulation being revoked by this instrument.

Secondly, where necessary, the instrument includes transitional or saving provisions to address live or in-flight cases—that is, provisions confirming how cases live on exit day should be dealt with or how data received before exit day should be treated. This will provide certainty for operational partners, such as the police and prosecutors, who currently operate the EU tools and measures and need to be clear on what activity can continue and on what terms at the point of exit. Thirdly, in the case of extradition, the instrument will ensure that the UK has the correct legal underpinning to operate the no-deal contingency arrangement for extradition—the Council of Europe Convention on Extradition 1957—with EU member states.

For the most part, the regulations make the same sort of changes over and over again in a series of related areas: revoking in whole or in part legislation on our domestic statute book that would be redundant in the event of a no-deal exit; fixing deficiencies, such as making sure that definitions in our domestic law reflect our new status outside the EU; and making sure that there is clarity over what happens to cases and requests that were live or in train at the point of exit.

Overall, the making of this instrument will provide legal and operational certainty for the public sector, including our law enforcement and criminal justice partners across the UK, such as the National Crime Agency, our police and our prosecution services. While it remains the Government’s position that exiting with a deal is in the UK’s best interests, this instrument makes important changes to ensure readiness on exit day in a no-deal scenario.

Having provided an overview of what the instrument does, I should also be clear on what it does not set out to do. For the most part, this instrument is not a vehicle for implementing the Government’s policy response to a no-deal exit. Our contingency arrangements for co-operation with EU partners on security, law enforcement and criminal justice involve making more use of Interpol, Council of Europe conventions and bilateral channels. These existing, alternative channels outside the EU are already in use between the UK and many other non-EU countries. Accordingly, they do not require domestic legislation to set them up, which is why those contingency arrangements are largely outside the scope of what these regulations set out to do. Even the Council of Europe convention on extradition, which this instrument links into our contingency arrangements, is already in place and in day-to-day use by the UK with non-EU countries. The instrument re-categorises EU member states for the purposes of our own domestic law, in the form of the Extradition Act 2003, so that we can administer requests from EU member states under Part 2 of that Act rather than under Part 1, as at present.

Finally, I should make it clear to the Committee that the instrument comes into force on exit day, as defined in the European Union (Withdrawal) Act 2018. Should we enter an implementation period the entry into force of these regulations, along with most other EU exit instruments, will be deferred to the end of that implementation period. I commend the regulations to the Committee and I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have to give the Committee apologies from my noble friend Lord Paddick, who is unwell. I am afraid that your Lordships have me whinging over this instead.

I was a member of the Secondary Legislation Scrutiny Committee for some time and its staff always amazed and impressed me with their ability to grasp detail while not losing a grip of the bigger picture. Reading the committee’s report on this instrument, it seemed to be the verbal equivalent of throwing one’s hands up in despair. It drew it to the special attention of the House,

“on the ground that the explanatory material … provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.

When I got the draft instrument out on Sunday, to look at it in a rather casual way, I thought it was just me but apparently it is not.

The committee also has within its terms of reference reporting to the House when an instrument fails to fulfil its policy objective. It has made it quite clear that it has some difficulty in assessing that. Its report says that it found the impact assessment,

“to be of little practical use”,

and that,

“for the most part the impact is categorised as … ‘there could be some practical impacts arising if legislative deficiencies are not addressed through these Regulations’. No information is given about the frequency with which the provision is currently used, whether an alternative route to the information is available at a different cost, or what effect the loss of this intelligence or information will be. Neither the financial nor the societal cost is quantified”.

The committee went on:

“We … expect an EM to include some contextual explanation, preferably with estimated numbers or an indication of the degree of usage, illustrating how the system will operate differently after the legislative change has happened”.


The Minister may say that she has told us that there really will not be a change, but I think that the committee is commenting on getting from A to B. It continued:

“Without such information we cannot assess the significance of a policy change and, therefore, advise the House accordingly”.


If I caught it correctly, the Minister said that for the most part there is no policy change. She is nodding at that, and I suggest to the Committee that that rather makes my point for me.

Scrutiny is not a rubber-stamping exercise. Analysis is at its heart. We have already heard the term “real-world effects”, and on that point the committee said that statements made by the Government,

“raise concerns that cannot be assessed properly without appropriate information on the current scale of usage and how that might change as a result”.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I agree with the comments of the noble Baroness, Lady Hamwee, about the report of Sub-Committee A of the Secondary Legislation Scrutiny Committee. If I were the Minister, sitting here reading this report and having to address Members, I would be pretty unhappy that the Government put forward these regulations in such a way that the sub-committee’s report was so damning. Normally in these reports, one or two little lines are highlighted in black with a few concerns, but in this case they are all over the place.

The sub-committee’s comments highlight its concern about how this issue is presented to Members. The first says:

“These draft Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.


It goes on:

“We were not persuaded that so wideranging an instrument, covering policy areas that are individually of significant concern to the House, can be justified. Effective scrutiny is inhibited by the wide range of issues included”.


Looking at the document, these issues are huge. I do not think that this is the way to present them to either House. I accept that the Government are up against it in terms of time—perhaps that is of their own making. However, we in this place and the other House have not exactly been busy; on many days, we have gone home quite early. On Thursdays now, we seem to be going home at 2 pm; we often used to sit until 7 pm. There has been plenty of time to discuss these things in more detail.

The list of concerns is unacceptable. The sub-committee, quite rightly, criticised the Government when they brought forward the regulations. I endorse its actions in pointing that out. It is not acceptable to bring them forward in this way. However, I accept that if we end up with no deal and crash out—I do not want to get into that situation—we must have functioning procedures in place. So, if the regulations are voted for on the Floor of the House, we will not oppose them.

We participate in several EU measures to enhance our security, law enforcement and judicial co-operation. They are vital in keeping us safe from people who do harm and commit criminal offences. We all support that. The Minister reminded us that the regulations seek to revoke or amend EU retained law that is directly applicable to our current domestic legislation. She said that the regulations would deal with live cases—as I think she referred to them—at the point of exit, and extradition.

Other noble Lords referred to the 1957 Council of Europe Convention on Extradition, which, according to the Explanatory Memorandum, would be used in lieu of the European arrest warrant. That is regrettable. The measures in the convention are far more limited than the European arrest warrant. Yes, the UK and the EU would allow extradition requests from other member states in lieu of the European arrest warrant, but Article 2(3) of the convention states:

“Any Contracting Party whose law does not allow extradition for certain of the offences referred to in paragraph 1 of this article may, in so far as it is concerned, exclude such offences from the application of this Convention”.


It is clear that the situation will be worse. The only people who will benefit are criminals; nobody else will. This is the criminal’s friend. It is a ridiculous situation and it is not the right thing to do, so we need further comments from the Minister on it.

The Government have made the case for the importance of the European arrest warrant. They have explained that more than 1,400 individuals have been arrested on European arrest warrants issued by the other 27 member states and that, in the same period, EU member states have arrested 183 individuals and brought them to the UK. The warrant is an important tool and it is regrettable that we will end up less safe as a consequence of these actions.

The Minister spoke about the loss of access to databases. We will lose access to a number of databases as a consequence of this measure, so it would be useful to have some comments on that. We are told that the impact of a no-deal exit on security, law enforcement and criminal justice co-operation with member states is not in the scope of the regulations, but the Government need to set out their plans. People are concerned about where we are and the consequences; if they are concerned about anything to do with leaving the European Union, it is matters of security. We need to understand fully what is at risk. We will be outside the Schengen information system and Prüm. Again, that is very regrettable, so it would be useful if the Minister could comment on it. We must have effective systems in place to deal with these matters.

I would also welcome the Minister’s comments on Europol and Eurojust. I hope that she will not say, “We’re still working on that”. If I get that response, I will remind her that it has been nearly three years since the referendum and we need to know where we will be on these important matters.

We do not oppose the regulations. I accept that they are narrow, but they have not been presented to this House and the other House well. The Government need to do much more to reassure us that, whatever happens, we will keep people safe. I believe that some of the measures here will make them less safe going forward.

[Baroness Williams of Trafford]

My Lords, I shall start with the final point from the noble Lord, Lord Kennedy, which concerns one of our first considerations as we leave the European Union: keeping our people here safe. He hits the nail on the head. For that reason, I hope that down the other end they are voting for the Prime Minister’s deal.

We need to be clear about these instruments. Should the UK leave the EU without an agreement at the end of the month—the no-deal scenario—the UK’s access to these tools and measures would cease. We are absolutely clear about that. At the same time, the UK would cease to be bound by the security-related EU regulatory systems. This would occur as a result of the UK’s withdrawal from the EU through the Article 50 notification, but not as a result of the provisions found in these instruments—I stress this yet again. It is important to be absolutely clear that the regulations play no part in bringing about the UK’s withdrawal from the EU. Rather the purpose of the instrument is to make amendments to the UK’s domestic statute book, including retained EU legislation, to reflect the new situation.

[Baroness Ludford]

Surely the difference that should be measured is between crashing out with no deal and the Government’s hopes for a security partnership, which are rather ambitious or, some might say, overambitious? The Government want something as similar as possible to what we have at the moment. That contrasts a great deal with simply cutting all our existing measures and systems.

[Baroness Williams of Trafford]

The noble Baroness makes a good argument, but it is not the basis of this statutory instrument. That is why I thought I would outline it. I do not disagree with her. I agree that we need to make sure that this country is kept as safe and secure as possible, as the noble Lord, Lord Kennedy, says. However, that is not the argument we are having today; I need to make that clear upfront. We are at one on this. There is no way that we want to undermine safety.

The noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, talked about the Secondary Legislation Scrutiny Committee. As they said, it highlighted the sheer range of subjects included in these regulations. The Government responded, setting out the reasoning behind our approach. The changes made by the regulations are in linked policy areas and cover three subject areas—this should start to make it clear why we have linked them all. The three areas are: security, law enforcement and judicial co-operation in criminal matters currently underpinned by EU legislation; security-related EU regulatory systems for which the Home Office is responsible; and domestic legislation affecting the police and the investigatory powers made deficient by EU exit.

In regard to security, law enforcement and judicial co-operation in criminal matters, the regulations address deficiencies in connection with EU measures with a justice and home affairs, or JHA, legal base. Reflecting their shared underlying legal base, these measures all relate in some way to law enforcement and security in their subject matter, and in many cases interact at an operational level. For example, as the noble Lord, Lord Kennedy, mentioned, SIS II circulates European arrest warrant alerts. The regulatory regimes, while not having a JHA legal base, have a similar underlying purpose to prevent, detect and prosecute criminal activity and to maintain security. Given that these are linked policy areas and that the changes made are very similar across most parts of the instrument—we are making the same sorts of amendments over and over again—we considered that combining them in a single instrument would assist scrutiny by providing as complete a picture as possible in one place. We expect it to assist the eventual users of the legislation, which will include law enforcement partners and prosecutors around the UK and who will often be using combinations of the EU tools covered by these regulations.

[Lord Kennedy of Southwark]

The Minister made the point that these measures have been put together to assist scrutiny. No doubt she believes that but the scrutiny people do not; they think the opposite. This is not the first time that we have had reports like this—although this may be one of the worst ones. When will the Government realise that Parliament does not like the way they are laying instruments in front of us, and that they should do it a different way? Some of the instruments I have seen coming forward are like encyclopaedias. There should be a policy decision because they are not being received very well. If the Government want to have proper scrutiny. we need to do it a different way.

[Baroness Williams of Trafford]

I do not dispute what the noble Lord says. I am purely trying to explain the logic behind the way that it has been laid out.

The Government then published a second Explanatory Memorandum because of the Secondary Legislation Scrutiny Committee writing to the Home Office, commenting on the sheer length of the original Explanatory Memorandum. As the Policing Minister outlined in his response to that committee, the detailed information in the original Explanatory Memorandum was supplied in good faith—the committee recognised this in its report—to provide the committee and other users of the Explanatory Memorandum with a thorough explanation of each provision in the instrument. One can conclude that we could not do right for doing wrong. Some people thought that there was too much information, others not enough. In the event, we provided a more concise Explanatory Memorandum on 11 February.

[Lord Kennedy of Southwark]

I thank the Minister—that is very helpful. I do not know what goes on in departments. Do I take it that Ministers sit round the table and say: “We got that one wrong. Both Houses are clearly very cross. When we have the next set of stuff, maybe we should try and do it a different way”? Does that ever take place? Can the Minister enlighten us?

[Baroness Williams of Trafford]

I think the noble Lord would probably accept that in this instance the Secondary Legislation Scrutiny Committee coming to us saying it was far too long and complex, then us trying to do a more concise version was a learning point for us. We accepted the committee’s point. In that sense, we try to learn as we go along. I certainly do not want to come to Committee too many times and having to take the rap for Explanatory Memorandums that are too long, too short or incomplete.

[Lord Kennedy of Southwark]

I have one final point. I will then leave it and move on. If we are to have more regulations, in the next few days or whenever, I hope the Government will take on point the concerns raised here and in the other place.

--- Later in debate ---

[Baroness Williams of Trafford]

That is a very good point, because if Parliament does not understand what the regulations mean then practitioners will be at a distinct disadvantage. I totally take the noble Baroness’s point.

As the noble Lord, Lord Kennedy, said, the Home Affairs Select Committee and the House of Lords’ EU Home Affairs Sub-Committee have been particularly active in publishing reports in March, July and December last year. There was the EU Home Affairs Sub-Committee’s report on a UK-EU security treaty on 16 January, as well as its oral evidence session on security arrangements in the event of no deal on 27 February. I am pleased that both Houses of Parliament are looking at an issue that has been under-debated in both Houses. For me it is one of the most important aspects, as the noble Baroness, Lady Ludford, said, as we leave the European Union.

The noble Baroness, Lady Hamwee, talked about the impact assessment being insufficient because it does not outline the impact of no deal. The impact assessment assesses the impact of legislating, as proposed in the regulations, compared with not doing so in a no-deal scenario. For the purposes of the impact assessment, the no-deal scenario is treated as a given since that is the scenario the regulations prepare for. We are not getting mixed up, but I think we are conflating no deal generally with the regulations.

[Baroness Hamwee]

I understand what the Minister is saying. Is that the explanation for us not being given the cost to the public purse, which, frankly, must be considerable, to which my noble friend Lady Ludford referred?

[Baroness Williams of Trafford]

That is pretty much so, but I will get on to that later. The impacts of no deal as a whole are completely outside the scope of the regulations.

The noble Baroness, Lady Hamwee, said that the regulations are indigestible. That is pretty much what the noble Lord, Lord Kennedy, said too, but we cannot avoid them in the event of no deal, given the importance of this area. As I said in my opening speech, most of the changes being made by the regulations are very similar—indeed, one might say repetitive—in most parts of the instrument.

The noble Baroness, Lady Hamwee, made a very serious point about the Liberal Democrats intending to vote against the regulations. Obviously, it would be deeply regrettable, particularly in this area, to take that course of action. The noble Lord, Lord Kennedy, pointed that out. These regulations will provide legal and operational certainty for operational partners. Clearly, it is vital that they uphold the rule of law and protect the public. We should be doing everything we can to support their work and to manage the transition to a no-deal scenario. I hope that does not happen, but if it does that is exactly what the instrument will do. I must say to the noble Baroness that if the changes in these regulations in the extradition space are not made, it is not clear that new incoming extradition requests from EU member states could be lawfully processed, with potentially serious consequences for our extradition arrangements with EU partners.

The noble Baroness asked how many EU member states need to make legislative changes to operate the Council of Europe’s European Convention on Extradition with the UK. All EU member states operate the European Convention on Extradition with Council of Europe countries that are not EU member states. I will not speak on behalf of other member states as to their particular systems, but we anticipate operating the European Convention on Extradition with all EU member states. I think that answers the question asked by the noble Baroness, Lady Ludford.

The noble Baronesses, Lady Hamwee and Lady Ludford, and the noble Lord, Lord Kennedy, talked about extradition. The noble Baroness, Lady Hamwee, asked me about “almost” no policy changes; here there is a tiny tweak which I will now explain. In the case of extradition, the regulations help to support the implementation of the no-deal contingency arrangement. The regulations will ensure that we have the correct legal underpinning, as I have already said, to operate the no-deal contingency arrangement with EU member states. However, the legal underpinning for our contingency arrangements for March 2019—the end of this month—largely exists outside these regulations. To be clear, the convention is already in place, and it is in use by the UK with other countries. These regulations will recategorise EU member states for the purposes of the Extradition Act 2003 so that we can administer requests from them under Part 2 of the Act rather than under Part 1 as at present. That is the tweak. I hope the noble Baroness will agree that it is a small tweak.

The noble Baroness, Lady Ludford, asked how much longer a Council of Europe case will take compared to a European arrest warrant case. We have absolutely accepted that, in the event of no deal and having to revert to Council of Europe conventions, it will take longer and cost more. The noble Baroness also made the point that it will not be as effective in the case of a no deal—she does not want Brexit at all, but that is by the by. The purpose of the regulations is to ensure that the statute book functions correctly and reflects the new situation should a no-deal scenario materialise. She very rightly asked about human rights. As the White Paper and the political declaration make clear, the UK is committed to membership of the ECHR, and we will remain party to it after we have left the EU. I also add that this country has some of the strongest human rights legislation in the whole world, and I remain confident that we will be world leaders in that.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Kennedy, very sensibly asked about data protection. The default position on data protection is that in a no-deal scenario we can continue to process data received from other member states before exit day, subject to compliance with the Data Protection Act 2018. One of the principles in that Act is that there should be compliance with the conditions under which personal data was first accessed, which in this case would imply the conditions—including those found in the measures themselves—under which the UK accessed the data while still a member state. However, to put the legal position beyond doubt and to reduce the risk of legal challenge, the approach taken in relevant areas of the regulations is to save the specific data protection measures. Saving those provisions helps to create legal certainty, including for operational partners.

The noble Baroness, Lady Ludford, also talked about the cost per extradition going up, and asked why that is not in these regulations. We have gone over that ground—this is not about no deal generally, but about putting things on the statue book. We are absolutely not denying that the cost will go up and that the time will be longer. I hope that answers all noble Lords’ points.

[Baroness Ludford]

I do not deny that I have been somewhat distracted by events going on elsewhere—

[Baroness Williams of Trafford]

I noticed!

[Baroness Ludford]

However, I do not think that the Minister answered my question about other countries.

[Baroness Williams of Trafford]

I did. The noble Baroness was very involved in her phone. I do not say that as a criticism because I am dying to go on to mine but, if she likes, I will repeat it in a letter.

[Baroness Ludford]

I will read it. I apologise.

[Baroness Williams of Trafford]

No worries.

Motion agreed.