Brexit: European Arrest Warrant (European Union Committee)

Lord Collins of Highbury Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I too thank the noble Lord, Lord Jay, for his excellent introduction to this debate and all noble Lords on the committee for the excellent report. This has been a great debate. It has shown a great deal of consensus across the Chamber that the European arrest warrant has brought significant benefits to the United Kingdom. Each year around 1,000 individuals are surrendered to other EU member states under the EAW. According to the report, on average the UK issues more than 200 European arrest warrants seeking the extradition of individuals to this country.

In the debate we have heard about the fundamental contradiction of the Government’s position. They have the stated priority that we remain part of the arrangement; however, in their White Paper on the UK’s exit and the new partnership with the EU, they have also confirmed that they plan to bring an end to the jurisdiction of the CJEU in the UK, with case law developed post Brexit having no formal status in the UK.

As the report lays out, a lack of oversight and adjudication by the EU supranational institutions represents a practical barrier to co-operation between the United Kingdom and the EU 27 on criminal justice, which, as we heard in the debate, is reliant on the principle of mutual recognition of judicial decisions between member states. Fundamentally, restoration of the UK’s full judicial sovereignty will make it very difficult, as my noble friend highlighted, to create a level playing field in criminal justice co-operation. In relation to areas of potential divergence, such as data protection, these complexities are exacerbated by the Government’s refusal to incorporate into domestic legislation the fundamental charter.

A no-deal Brexit will make the challenge of continued co-operation that much harder. The default outcome would be to revert to the Council of Europe Convention on Extradition 1957 as the legal basis for extradition between the UK and the remaining EU member states. The noble and learned Lord reminded us of its history and the problems that that could bring.

On the report, noble Lords have referred to the fact that the witnesses giving evidence to the committee were clear that this was not an adequate substitute for the EAW and represented a cliff edge. Even with the amendments to the Extradition Act 2003 the result would be a significantly slower extradition process which represented a political rather than judicial approach to extradition and would have rule of law as well as security implications.

As the noble Lord, Lord Hannay, rightly pointed out, in a Protocol 36 decision in 2014 the UK Government had to decide whether to accept the jurisdiction of the CJEU in return for the continued use of tools such as the EAW. Now as then, the safety of the people of the United Kingdom should be the Government’s overriding consideration. The report explores the possibility for a bespoke dispute resolution mechanism in the area of criminal justice co-operation. Evidence submitted suggested that for the enforcement of criminal judgments and the EAW this would have to be a court. Only a court can appropriately review decisions affecting the liberty of an individual, as my noble friend Lady Kennedy highlighted. A political resolution mechanism or arbitration will simply not be sufficient.

The noble Lord, Lord Jay, highlighted one possible template referred to by the committee: the EFTA court, with jurisdiction over states which are party to the EEA agreement. Although EEA agreement states exist outside the scope of the jurisdiction of the CJEU, the EFTA court guarantees sufficient homogeneity between the two systems to avoid significant disputes. But as my noble friend Lady Kennedy again pointed out, the EFTA system took many years to negotiate. It has never been applied to justice or home affairs issues, only internal market concerns, and applies to two European states moving towards EU membership that also participate in the Schengen area.

The report entitled Brexit: Future UK-EU Security and Police Cooperation concluded that,

“the most promising avenue for the Government to pursue may be to follow the precedent set by Norway and Iceland and seek a bilateral extradition agreement with the EU that mirrors the EAW’s provisions as far as possible”.

This model of harmonisation would require a duty of constant review of CJEU case law and a clear political dispute resolution mechanism. What we have heard throughout the debate is that the failure to co-operate will hamper the UK’s ability to combat crime, including organised crime, people trafficking and terrorism. The Government’s stated prioritisation of the EAW is incompatible with their plans to bring an end to the jurisdiction of the CJEU in the United Kingdom. The UK and the EU will need an agreed international body which effectively acts as a safeguard against unlawful warrant issuance. Only a court can appropriately review decisions affecting the liberty of an individual, and consequently this international body will have to be a court. It is very unlikely that the EU will agree to the jurisdiction of an independent judicial body that is distinct from the CJEU.

A no-deal Brexit will make the challenge of continued co-operation that much harder, and of course reverting to the 1957 Council of Europe convention is no answer either. Unlike the Government’s response, Labour would not only allow for continued jurisdiction of the CJEU to provide for continued co-operation with EU member states on extradition arrangements, it would work with international institutions to increase UK judicial oversight of this process. Doing so would provide the safeguards to balance effective extradition and the protection of basic rights and freedoms.

We come back to the fundamental issue here, which is the security of our people. This system works and the Government have imposed a red line that simply will not work. I know that the Minister is excellent at squaring the circle. In his response to the debate I hope that he will be able to do that, but I fear that he will fail.