European Union (Withdrawal) Bill

Lord Adonis Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Adonis (Lab)]

My Lords, I have four amendments in this group, which, following on from what the noble Lord, Lord Hannay, has just said, seek to maintain British membership of the EU’s Political and Security Committee, the EU’s common foreign and security policy, the EU Foreign Affairs Council and the EU Intelligence Analysis Centre.

First, I warmly welcome the noble Baroness to the Front Bench and to our debates. We have very high hopes of her and her response to this debate because she is not the noble Lord, Lord Callanan. We regard her as the more accommodating face of Her Majesty’s Government. We think that, while the noble Lord, Lord Callanan, is not on the Front Bench at the moment, she has an opportunity to make all kinds of very sensible statements of government policy which can then go on the record and we can move on from there. This is a golden opportunity for her to do so in respect of foreign policy.

The noble Lord, Lord Wallace, made a very powerful speech on why it is important that we remain thoroughly engaged in the security apparatus of the European Union and he spoke about the big dangers that face us as we leave. I do not think there is any point in my repeating those remarks or those of the noble Lord, Lord Hannay. I just want to make two comments.

The first relates to the only speech that the Prime Minister gave, on 25 April 2016, in the debate on the referendum, where she weighed the arguments for remaining in the European Union. What is so remarkable about that speech is how much emphasis—it was an almost exclusive emphasis—she placed on the security aspects of the European Union and the dangers to our security of leaving. Clearly, given her experience in the Home Office, she was particularly concerned about some of the Home Office dimensions of that, and we will cover those in a later group. However, she also raised the broader security issues.

If one looks at the words that she used in that speech, it is very clear that she regarded membership of the multilateral institutions of the EU, particularly in foreign policy and security co-operation, as being of huge importance to the Government and to this country. She said:

“If we were not members of the European Union, of course we would still have our relationship with America … But”—


these are the key words—

“that does not mean we would be as safe as if we remain”.

As the noble Viscount, Lord Hailsham, said, we will be leaving all these institutions in one year, and I believe it is incumbent on the Government to give the House some sense of what their policy will be in respect of those institutions. That is hugely important.

My second point is to consider the course that we now appear to be set on. It is what has become known as “hard Brexit”, which is leaving not just the security institutions of the European Union but the economic institutions—the single market and the customs union. I am a novice to international security policy. I have spent most of the last 15 years trying to reform public services at home and, like many other noble Lords, I have had to get to grips with these issues. One of the most important and, for me, influential books that I have read while I have tried to understand what this might mean for the future of Britain in Europe and globally is by Professor Brendan Simms at the University of Cambridge. He has written a quite brilliant book called Britain’s Europe: A Thousand Years of Conflict and Cooperation, which charts our whole relationship with Europe during the last millennium.

Professor Simms makes a quite obvious point, the significance of which becomes greater and greater as we appear to be heading towards leaving not only the security but the economic institutions of the European Union. The basic but fundamental point he makes is that countries which are engaged in trade conflicts and trade wars find it that much harder to co-operate on security issues. To my mind, in terms of the security of the United Kingdom going forward, the most alarming development at the moment is that, as we appear to be in an ever more tense and potentially conflictual relationship with France and Germany in particular over the future of our trade policy, and if we are to start engaging in tariff wars and setting up rival customs arrangements and things of that kind which could lead to quite significant trade conflicts, that can only weaken our security co-operation with them over the medium to long term.

Those of us who are in favour of remaining in the European Union are often accused of carrying out what is called Project Fear, but I recommend to the Minister and to noble Lords the Prime Minister’s speech of April 2016. She draws a direct parallel between the instability of relations between European powers before 1914 and what could happen if we start to fracture those relations today. That came from her, not me. Therefore, what we look for from the Minister while she is able to make positive statements about Europe in the absence of the noble Lord, Lord Callanan, is some indication that she appreciates the need for very close co-operation with our European partners on trade and economic matters, not least because that will tend to promote close alignment in foreign and security policy.

[Lord Cavendish of Furness]

My Lords, does the noble Lord not realise that those of us who advocate leaving believe in free trade, which has been a great source of peace, rather than conflict, throughout history? He belongs to the side that wants tariffs.

[Lord Adonis]

My understanding is that it is the policy of Her Majesty’s Government to put in jeopardy the free trade we currently enjoy in the European Union. If the Government were in favour of free trade, we would stay in the customs union and in the single market. These are straightforward, obvious propositions. The policy of the Government tends only towards reducing free trade with the single biggest set of trading partners that we have at the moment.

[Lord Lamont of Lerwick (Con)]

How is the noble Lord just about the only person in this House who does not know that the Government have stated over and over and over again that they want a free trade agreement with the European Union?

[Lord Adonis]

My Lords, the best free trade agreement to have with the European Union is the one that we are currently in. That is patently obvious. When you have an existing set of satisfactory arrangements, the idea that the policy for improving them is to undermine them is total nonsense.

I hope the noble Baroness will give us some assurance that she understands the significant security dimension that is at stake in our leaving the European Union and the importance of having close alignment on trade, not least so as not to weaken our collective security with our European friends and allies.

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[Lord Hamilton of Epsom]

My noble friend is absolutely right. Of course, the EU is watching all this extremely closely because it is desperate to try to snarl up the whole process so that we cannot leave. The fact that a referendum involving a democratic vote was held on this is regarded by most people in the Commission as a sign of weakness. I think it was President Macron who said the other day that if a referendum were held on whether France should pull out of the EU, the leavers would win, but of course he was not going to allow a referendum. I am sure that that will go down in history along with other French expressions such as “Let them eat cake”.

[Lord Adonis]

My Lords, I have six amendments in this group. They refer to the United Kingdom having continued access after withdrawal to passenger name records, to the Schengen Information System, to the European arrest warrant, to membership of Europol, to the European Criminal Records Information System, and to the fingerprint and DNA exchange with the EU under the Prüm Council decisions.

The questions put to the Minister by the noble Lord, Lord Thomas, went to the heart of the matter—that is, given that the Prime Minister said in her Munich speech that she wishes to see a treaty replace all these elements of the existing arrangements, the Minister should simply tell us the process by which we will be negotiating the treaty. This debate, as with many others, gives the complete lie to the ridiculous assertion that no deal is better than a bad deal. Let us be clear: if there is no deal on 29 March next year, the current arrangements to which the noble Lord, Lord Inglewood, referred, painstakingly negotiated over many years, for the European arrest warrant and the very high levels of engagement between the member states of the European Union—which the noble Lord, Lord Hogan-Howe, said were so important to his work as Commissioner of the Metropolitan Police—all fall.

Is the Minister going to tell us that the security of this country will be as safe as it is now if all those arrangements fall? I assume that he is not, in which case the United Kingdom leaving the European Union with no deal at the end of March next year would be a complete abdication of the national interest. We need to get that firmly established. As we have more of these debates and see the precise benefits of the EU—which, after all, are the reason we went into the European Union—it becomes clearer and clearer that leaving with no deal would be a dereliction of the national interest.

[Lord Deben]

Before the noble Lord leaves that point, does he also agree that asking the Government to explain how this treaty is being discussed and by whom cannot have any effect whatever on the negotiations between the Government and the European Union? Is it not true that several of the questions asked have had nothing to do with the negotiations? We would just like to know where the Government are on matters which are unconnected with those negotiations.

[Lord Adonis]

I entirely agree, and I hope that the noble Lord will say that to the noble Lord, Lord Lamont, who is sitting right next to him. It provides a devastating response to the noble Lord’s intervention just a moment ago.

We are asking the Government simply to declare the policy of Her Majesty’s Government in the negotiations that are taking place. Since one assumes that our European partners are being told what we are seeking to negotiate—it is quite hard to negotiate something if you do not tell the other side what you are seeking to negotiate—I cannot see that there is any damage to the public interest in telling this House and the public. These are very straightforward questions. The noble Lord, Lord Hamilton, says that we should not declare our hand midway. Are we or are we not in favour of keeping the European arrest warrant after 29 March next year? If we are, that is a clear negotiating objective of the Government. It will require a straightforward continuation of the current arrangements, and people like me will say all the way through that it is yet another argument as to why we would be much better off staying in the European Union in the first place and not having to go through this hugely complex and difficult process of attempting to replicate arrangements so that we do not end up with a worse situation, when there is every likelihood that we will.

The devastating response to and commentary on all these matters come from the Prime Minister herself—both in her Munich speech, in which she made it very clear that she would regard it as damaging to the national interest not to have a treaty at the end of March, and in her speech on 25 April 2016 before the referendum, in which she was even clearer on these matters. In that latter speech, in which she sought to argue why we should stay in the European Union, she went through in great detail the benefits that the European arrest warrant, the Prüm arrangements and so on gave to the security of the United Kingdom. Those are all points that the noble Lord, Lord Inglewood, has raised.

The noble Lord, Lord Hogan-Howe, seems to want to will the ends without the means. I understand that he has not had to negotiate these issues himself, but just says, on a wing and a prayer, that he wants these objectives to be secured and is sure that our negotiators in Brussels will be able to do it. If the noble Lord had had any systematic engagement with the Ministers responsible, I do not think he would necessarily have so high a degree of confidence in their capacity to negotiate his objectives.

The Prime Minister herself gave the devastating response to the question of why we should stay in the European Union in respect of these security and justice issues. In her speech of 25 April 2016, when referring to the European arrest warrant and the passenger name record directive, she said that these show,

“2 advantages of remaining inside the EU … without the kind of institutional framework offered by the European Union, a complex agreement like this could not have been struck across the whole continent, because bilateral deals between every single member state would have been impossible to reach”.

Let us be frank: that is why we are in the European Union, why it serves our national interest and why we have a very high degree of co-operation when it comes to justice and home affairs.

We are talking about very large numbers. The Prime Minister herself gave the figures, saying that in the five years prior to her speech—2011 to 2016—5,000 people had been extradited from Britain to Europe under the European arrest warrant, and 675 suspected or convicted wanted individuals were brought to Britain to face justice. She said:

“It has been used to get terror suspects out of the country and bring terrorists back here to face justice”.


Just as the noble Lord, Lord Thomas, gave his extraordinary statistics about how long it used to take to get extradition proceedings under way, the Prime Minister said:

“In 2005, Hussain Osman—who tried to blow up the London Underground on 21/7—was extradited from Italy using the Arrest Warrant in just 56 days. Before the Arrest Warrant existed, it took 10 long years to extradite Rachid Ramda, another terrorist, from Britain to France”.


These issues are of the utmost gravity and we need an assurance from the Minister that, in the negotiations for the treaty that the Prime Minister referred to in Munich, we will seek to maintain arrangements that are in every respect as good as those we currently have. If we do not have those in the treaty she presents to Parliament at the end of the year, many of us will say that this whole Brexit process has seriously damaged the security of the United Kingdom.

[Lord Liddle (Lab)]

Does my noble friend accept that the reason the Government will not disclose their negotiating objectives is not that this would somehow prejudice their position but rather that they do not know what those objectives are? The truth is that this is an issue of real sensitivity to the Brexiteers. The question is whether these arrangements are intergovernmental or involve the institutions of the European Union and the supervision of the European Court of Justice.

I know all about this because, as an adviser to the then Prime Minister, I went through many iterations of this issue. When justice and home affairs first became a subject of the European Union, and a pillar of the Maastricht treaty, it was all at an intergovernmental level. Gradually, it became more communitised, as it were, for the simple reason that that was the way to make it work. We could not make it work as an intergovernmental mechanism. We could not get the degree of co-operation needed to make something like the European arrest warrant work without having some judicial supervision mechanism, so the Labour Government agreed to it—somewhat reluctantly because some of the people involved were not the greatest supporters of civil rights in many respects, but they agreed to it.

What is happening in Brussels at the moment is that the member states are discussing among themselves what framework they are going to set for the negotiations for the rest of the year. That will be coming out at the end of March.

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[Baroness Goldie]

I think your noble friend thought that he had been usurped.

[Lord Adonis]

My noble friend’s intervention is excellent and gives the Minister more to respond to. I know he is short of points to deal with at the end of this debate.

[Lord Liddle]

This is Committee stage. We are allowed to go back and forth. What are the Government saying to other member states at the moment about the nature of the agreement on this that they are prepared to contemplate? Are they saying to our current partners that they are prepared to see judicial supervision in these arrangements or not? I hope the Minister will answer that very simple point.

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As many noble Lords have referenced, the Prime Minister has proposed a bold new security partnership with the EU, including a comprehensive agreement on our future security, law enforcement and criminal justice co-operation. She elaborated on the Government’s proposals in this area in her speech in Munich earlier this month, making it clear that Europe’s security is our security and that the United Kingdom is unconditionally committed to maintaining it. Her speech built on the future partnership paper that the Government published on 18 September 2017, which set out how we are seeking an overarching treaty that provides for practical operational co-operation and facilitates data-driven law enforcement and multilateral co-operation through EU agencies such as Europol and Eurojust.

[Lord Adonis]

Can the Minister answer the question put by the noble Lord, Lord Thomas, as to which Minister is taking the lead in the security negotiations?

[Lord Callanan]

I will come to that later in my speech, but I will answer that question.

In that same paper, we made it clear that we value the operational benefits that we derive—I was struck by the comments on this from the noble Lord, Lord Hogan-Howe, and on how valuable many of them are. The noble Lord, Lord Hannay, referred to many of them, too, including the passenger name record directive, the second generation Schengen Information System and the European arrest warrant. There is also ECRIS, referred to by the noble Earl, Lord Listowel, and all the various acronyms that go with many of these JHA matters. They are all to do with the systematic exchange of information with our EU partners—for example, on criminal records—which helps to deliver fair and robust justice. I hope that reassures the noble Lord, Lord Cormack. He referred to Interpol. I assume that he meant Europol, but, for the avoidance of any doubt, I should say that we continue to co-operate in the same way with Interpol.

We made it clear that we want to agree future arrangements in this area that support co-operation across a range of EU measures and agencies, and to avoid operational gaps for law enforcement agencies and judicial authorities in the UK and the EU. The level of co-operation that we want to sustain goes beyond the specific tools and measures highlighted by the noble Baronesses, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis. We have described the legal instruments here as a “toolkit” that can provide cumulative benefits. We have also indicated that we want our future partnership with the EU in this area to be dynamic, allowing us to co-operate if necessary in new ways in the face of evolving threats.

The amendment tabled by the noble Baroness, Lady Kennedy, highlights the respective roles of domestic courts and the CJEU. We made it clear in our future partnership paper on security, law enforcement and criminal justice that a future agreement in this area would need to provide for dispute resolution. Let me give a little more detail on that.

On leaving the EU we will bring to an end the direct jurisdiction of the CJEU in the UK. There are a number of existing precedents where EU agreements with third countries provide for close co-operative relationships without the CJEU having direct jurisdiction in those countries. The UK will engage proactively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU. We also published a separate future partnership paper on enforcement and dispute resolution last August, addressing many of those points and setting out the Government’s approach to these issues.

The House has of course debated this issue on a number of occasions, particularly earlier this month, on 8 February, in the debate on the EU Committee’s report on judicial oversight of the European arrest warrant. The withdrawal agreement and implementation Bill will implement the withdrawal agreement in our domestic law. In addition, the Government have already committed to provide Parliament with a meaningful vote on any final deal. This will give both Houses of Parliament the opportunity to scrutinise again the future relationship between the UK and the EU. We need to be able to work with the EU to respond quickly and effectively to the changing threats we face from terrorism and serious organised crime. In negotiations, we will be seeking to agree the best possible way to continue our work alongside our European partners in support of our common goals and shared interests. We are absolutely committed to securing the close relationship that the noble Baronesses, Lady Ludford, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis, want to see—and on that basis I hope that they will not press their amendments.

Amendment 99, also tabled by the noble Baroness, Lady Kennedy, would prevent regulations made under Section 7(1) of the Bill from diminishing the protections in relation to “protected persons” set out in Part 3 of the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014. As I understand it, the amendment seeks to ensure that the relevant authorities in England and Wales will continue to recognise and act upon European protection orders made in remaining member states after exit day, whether or not those states act on ours.

The EPO regime, established by an EU directive of the same name and implemented in England and Wales under the cited regulations, which came into force in 2015, is essentially a reciprocal regime. It requires the relevant designated authorities in the different member states involved to act and to communicate with each other in the making of an order and in its recognition and enforcement—and also, indeed, in any modification, revocation or withdrawal of one. It is not possible for us to regulate from here to require the relevant authorities of remaining member states to act in any particular way. As such, if we are not in a reciprocal regime we will no longer issue EPOs to remaining member states, since it would be pointless to do so, and nor will the authorities in those member states issue them to the UK, for the same reasons.

In short, absent our continued participation in the EPO regime, or in some proximate reciprocal arrangements in its place, these regulations will be redundant; they do not work unilaterally. This amendment therefore pre-empts the outcome of the negotiations, potentially requiring the retention of redundant legislation. It would not be right to create a false impression by retaining redundant legislation. I am happy to be clear, however, that if the forthcoming negotiations produce an agreement to continue access to the regime established under this directive, or something like it, appropriate steps and legislation will be brought forward to implement it at that time. This will encompass the protections for protected persons. We will, of course, consider that at that stage. Meanwhile, for now, there is no practical point or purpose in having such an amendment or these provisions.

I shall answer some of the other points that were made. The noble Baroness, Lady Ludford, asked me about the O’Connor case and about extradition to the UK from Ireland. I am sure that the House will understand that I am somewhat limited in what I can say on this matter; it is a live case at the moment. Suffice it to say that we are monitoring it closely, but it would be wrong to speculate on its impact before the case is concluded. Once it is, we will be happy to do so.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, I think it was, asked how we could reconcile the principles set out in the Prime Minister’s Munich speech, first on UK sovereignty and secondly on the ECJ. As the Prime Minister said:

“The Treaty must preserve our operational capabilities. But it must also fulfil three further requirements. It must be respectful of the sovereignty of both the UK and the EU’s legal orders. So, for example, when participating in EU agencies the UK will respect the remit of the European Court of Justice. And a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”.


The noble Lord, Lord Hannay, asked about justice and home affairs in the implementation period. We welcome the EU’s position that the UK should continue to participate in existing justice and home affairs measures where it has opted in. We also want to ensure that the UK and the EU can take new action together against unforeseen incidents and threats during that period. For those reasons, we want to be involved in new measures introduced during implementation where that is appropriate. He also asked about the Prime Minister’s speech in Munich. I confirm that she was talking about all the justice and home affairs measures he mentioned—the EAW, ECRIS, Europol and all the other appropriate acronyms.

The noble Baroness, Lady Ludford, asked about the European arrest warrant and about the chance of a successful outcome compared with Norway. We value our co-operation through the EAW as it provides a faster and cost-effective way of handling extradition and helping us tackle cross-border criminality. With regard to Norway, our starting point for negotiations on future co-operation will be different from that of either Norway or Iceland, where a bilateral agreement is also in place. Of course, our starting point is different from theirs in so far as our extradition arrangements will be fully aligned with those of the EU at the point of our exit since we operate the same tool. That was not the case with Norway and Iceland when they joined.

The noble Lord, Lord Thomas, asked where we are in the negotiations and who is doing them—which the noble Lord, Lord Adonis, was also interested in. The Secretary of State for Exiting the EU is responsible for conducting negotiations in support of the Prime Minister. He is supported by the core negotiating team, which is made up of senior officials from a range of government departments. In response to his question about contacts, officials are engaging now and constantly with EU counterparts on a range of issues—but I come back to my earlier point that it would not be appropriate to give a running commentary on these discussions. We approach the next round of negotiations with optimism.

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[Lord Keen of Elie]

I entirely agree with the noble Lord as to what this Bill is about. With regard to the charter, the point is that it does not bring anything over on its own. We already have these rights and obligations, as established by the principles of EU law, convention law and the common law.

As to a concern that something is omitted at the end of the day, as I indicated, we would address that to ensure that all rights are brought across. However, with great respect to the noble Lord, Lord Cashman, I do not believe that you can never have too many belts and braces. If you have too many belts and braces, eventually you cannot stand up. It is therefore important that we approach this issue with a degree of proportionality, if I may use a European term.

Following on from the point I made earlier, retaining the charter for what will become a fluid and changing category of law risks legislatively binding us to a document that would bring the illusion of clarity in the short term but serve only to undermine it in the longer term. Indeed, the other amendments in this group raise similar issues to those put forward by the noble and learned Lord, Lord Goldsmith.

My noble friend Lord Hailsham has tabled amendments that seek to build on the amendments put forward by the noble and learned Lord, Lord Goldsmith. They seek to assign the status of primary legislation to the European Charter of Fundamental Rights. For reasons that we will go into in a later group, the Government believe that the question of assigning status to retained EU law is complex and should be approached with caution. I hope that we can come back to this question when we have concluded our debate on the approach to rights protection and to status more generally. I will not seek to take up time on that issue at this stage.

I suspect that the amendment tabled by the noble Lord, Lord Wigley, would also add to the confusion. Seeking to afford charter rights the same level of protection as convention rights under the Human Rights Act 1998 is fraught with difficulty. Charter rights do not correspond exactly to ECHR rights and apply in different ways. The charter also contains non-justiciable principles as well as rights, and it is unclear what status these would have in domestic law under his amendment. Moreover, it does not deal with how explanations to the charter articles should be treated or how certain sections of the Human Rights Act would apply to charter rights. I appreciate that we are in Committee and that the noble Lord is entitled to say that he will look more carefully at the form of the amendment and perhaps elaborate upon it in due course, but there are fundamental difficulties with the approach he is attempting to take in simply trying to incorporate the charter when, as indeed the noble and learned Lord, Lord Goldsmith, himself observed, the expression of rights in the charter does not coincide precisely with the expression of rights in the convention.

I would like to emphasise again that we remain committed to listening to this House and indeed to working constructively to ensure that we have a functioning statute book which maximises legal certainty. I understand the concerns expressed by some about whether some rights would somehow be left behind, but if we can and do identify a risk of such rights being left behind, we are entirely open to the proposition that we have to address that by way of amendment to the Bill, and we will seek to do that. I wish to reassure noble Lords on that point.

[Lord Adonis]

My Lords, can the noble and learned Lord give us any indication of when he thinks that that exercise will be completed?

[Lord Keen of Elie]

The potential answer is no, and the note says that my time is up. Nevertheless, and be that as it may, we will endeavour to address these issues as soon as we can. Clearly it will require us not only to consider the position we have adopted already in the document published in December last year but to take into consideration the concerns expressed by other lawyers and in this Committee in the course of the debate. We will look at those and we will want to address them at the next stage of the Bill; of that, I am confident.

At this stage I appreciate that there are some questions which I have not directly answered in the course of my response and it may be difficult to do so in the time remaining. Perhaps I may say that I endorse entirely the observations of the noble Baroness, Lady Deech, and of the noble and learned Lords, Lord Hope and Lord Brown of Eaton-Under-Heywood, with regard to the potential difficulties of simply drawing the charter over into domestic law. I am not going to elaborate on the consequences of doing that, but they can be summarised as confusion, uncertainty and difficulty, and ultimately could prove to be counterproductive. In these circumstances, I invite the noble and learned Lord to consider withdrawing his amendment.

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Debate on whether Clause 1 should stand part of the Bill.

[Lord Adonis]

My Lords, we have been debating Clause 1 for 18 hours and three-quarters. That is probably enough, so I shall not prolong the debate any longer.

Clause 1 agreed.