Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Lord Faulks Excerpts

Monday 17th November 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

As I rise to speak at 10.45 pm, I am reminded of my former constituent who, as I left the gym one morning, pointed out that, as a member of the House of Lords, I must be semi-retired. Little did he know. The noble Lord, Lord Stoddart, ended on a very important point. We started this debate at 8.56 pm, after a very long Second Reading debate. It was not rocket science for the Government to understand that a number of noble Lords, who have great expertise and knowledge on these issues, might wish to contribute. Your Lordships have been remarkably self-disciplined in keeping the debate so short and precise. We have had numerous debates of this kind in which many—but not all—noble Lords here this evening have taken part. Given the importance of tonight, and the mess the Government made of it last week in the House of Commons, they should have got it right. I am sorry and disappointed at the way the Government have behaved.

The Motion before us tonight is, as we have heard, different from what the Government originally intended. It is right that the Government have changed their proposal after the chaos and criticism of their approach in the other place last week. Parliament should have the right to debate and vote on the opt-in of the 35 measures that the Government have decided are the most important and crucial to national security and public safety, including—but not only—the European arrest warrant. The confusion we saw last week in the House of Commons was caused by the Government undertaking a rather curious and disingenuous procedural sleight of hand by referring to just 11 of the measures and not the full 35, including the European arrest warrant and then, against the Speaker’s ruling, claiming that it did include them. I hope this does not sound pompous—I have never been accused of being pompous and it is not meant to sound like that—but that does not do anything to enhance the reputation and integrity of the Government where Europe is concerned or to give any confidence that the Government can be relied on to put national interest and public security before party-political interest.

The Government have amended the Motion they originally intended to be debated this evening. The new Motion clarifies the fact that your Lordships’ House can support, or indeed oppose, all 35 of the measures, including the EAW. That is very simple and is largely what the Home Secretary and Prime Minister promised. However, I was surprised that the Minister did not mention, earlier in the debate, a point referred to by the noble Lord, Lord Hannay. When this House discussed the negotiations regarding the opt-in, we endorsed the 35 measures at that time. This was not the Motion before the House of Commons. I listened with great care to the excellent speech by the noble Lord, Lord Boswell, which I think he made more in sorrow and disappointment than in anger. I have known the noble Lord for a long time. In the first committee I ever served on in Parliament, the noble Lord was leading from his party as the shadow Minister and I was on the government side. We were bringing in the national minimum wage and he was leading a team of very able opposition Back-Benchers against it. Recognising the noble Lord’s experience, I hope that the Minister accepts the amendment, which is very precise and fair in its criticisms.

The noble Lord, Lord Boswell, referred to a letter that he received from the Leader of the House on tonight’s debate. I am sorry that the official Opposition did not receive a copy of that letter. It would have been helpful.

As we have heard, the handling of this issue has been quite appalling. Noble Lords who have taken part and followed these debates closely will recall and no doubt share some of our exasperation as we have tried to extract details from Ministers on the issues being debated. The noble Lords, Lord Faulks and Lord Bates, are the fourth and fifth Ministers whom I have debated this issue with, which started originally with a Statement from the noble Lord, Lord McNally.

I have asked a number of questions since the beginning of this exercise and, ever the optimist, I will raise those again in the hope that I will get some answers. I appreciate that the Government have supplied huge volumes of information but that has not been matched by clarity—a point made by the Joint Committee on Statutory Instruments. Through this whole process, the most helpful documents and information that I have seen—this point was made by the noble Baroness, Lady Prashar—were from our own EU Committee. I am grateful to that committee for its briefings in which they were able to talk to lawyers and others with direct experience of these issues. Their experience and advice were equally valuable. This issue requires a great detail and accuracy, yet it has every appearance of a political charade designed to placate anti-European sentiment without full and proper examination of the detail of all its implications. Let us set tonight’s debate in context and be clear about our position in the Labour Party and our commitment to the necessity of fighting crime across boundaries.

The key parts of the EU-wide co-operation that we support and now recognise in the 35 measures are mutual exchange of information in criminal investigations, locating and confiscating the proceeds of crime, criminal record checks, joint cross-border investigations and the European arrest warrant. They are essential crime-fighting tools. This is not some theoretical argument about whether we are pro- or anti-EU co-operation. This debate should only ever have been about hard-nosed, practical measures in the interests of the safety and security of UK citizens. Those of us who made the case for the European arrest warrant welcome the Government’s conversion to its value and importance and the eventual acceptance of the European supervision order which I am sorry was delayed by the Government. It would have been very helpful in making the case for the European arrest warrant had that been brought in earlier.

We have heard examples of problems with the European arrest warrant. The noble Lord, Lord Inglewood, spoke about the important changes that have been made. But equally there are numerous other examples. When Jeremy Forrest left the country with a young schoolgirl, he was brought back within days. That would not have happened prior to the European arrest warrant. There are other cases where terrorists have been brought back to the UK much more quickly than they would have been without the European arrest warrant.

Some of us in your Lordships’ House are old enough to remember the costa del crime, when criminals fled to Spain and were not brought back for months or even years. There is a huge value in the European arrest warrant and I am shocked that so many noble Lords are prepared to take on board a few cases. They do not want to change the European arrest warrant but instead throw the baby out with the bathwater, denying its value to British citizens.

We welcome the Government’s conversion on this issue. We welcome the Government’s acceptance of the value of joint EU investigation teams, the acceptance that crime does not stop at the Channel and that such co-operation is essential. We are now clear about what the Government are proposing we opt back into. I am grateful to the Secondary Legislation Scrutiny Committee for its 13th report enhancing that clarity. I share its criticisms of the lack of clarity in the Explanatory Memorandum.

The noble Lord, Lord Boswell, made an important point about the 35 measures. Measures proposed previously by the EU Committee beyond those 35 have not been given consideration in full and by Parliament. I can think of one in particular that I would have been interested in considering further—recognition around driving offences. If you talk to people in the streets they will tell you time and again that they do not believe the issues of co-operation on driving offences and disqualification are taken seriously enough.

We understand what we are opting back into, but I seek clarification from the Minister on those issues that the Government are seeking not to opt back into and that we would be permanently excluded from. In terms of numbers there were originally 133 crime, law and order, and policing measures, and the Government wanted to opt back in to 35. An additional seven were replaced and the Government opted in. There was a lot of debate in the press at the time, with the two government parties arguing about the precise number of measures that would be opted out of and opted back into.

For there to be any real value in this process it had to be far more than a tidying-up exercise of jettisoned measures that were defunct, irrelevant or useless. There had to be some meaning to it. It could not just be some kind of academic exercise in clearing up those that could have withered on the vine, a point that my noble friend Lord Davies made. The noble Lord, Lord McNally, was the first Minister to raise these issues in your Lordships’ House. He referred to measures that were obsolete, defunct or simply unused. He wrote that the Government were keeping the wheat and losing the chaff. I asked the noble Lord, Lord McNally, in 2012, the noble Lord, Lord Taylor, in 2013 and in 2014, and the noble Lord, Lord Bates, last week for some clarity on what that meant and the value of the measures that the Government want permanently to opt out of. There are three noble Lords here who have experience of this issue. To date, I have received no meaningful answers.

The questions are straightforward. I shall have one last shot at this: can I try again? First, how many and which of the measures of around 100 that the Government plan to opt out of permanently are of any value or even apply to the UK? Secondly, how many were being used and in operation prior to the opt-out decision and how many of those that have been permanently opted out of were harmful to the interests of the UK? Some clear answers to those questions would be extremely useful. Can the Minister answer those? Is he about to intervene?

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

No.

[Baroness Smith of Basildon]

I will be patient—I know that he is just taking notes.

To bring clarity to this debate it would be really helpful to know whether this is a serious policy process to ensure the safety and security of British citizens, or whether it is a numerical exercise carried out for party political reasons and of no real value. One of the noble Lords from UKIP referred to the by-election happening later this week in Rochester. I hope that this debate has played no part in the Government’s decision in what they were seeking to do in opting in and opting out. It has to be a valuable exercise, or it is cosmetic. We need answers.

Finally, can I make a plea to the Government for evidence-based policy-making? Unless I receive an answer tonight that would convince me to the contrary, I believe that in so many ways we seem to have government by numbers. We have seen it in the nonsense of net immigration figures. Success for the Government on net migration reduction would be to have lots of highly qualified professionals leaving the country and a huge reduction in fee-paying students not coming to the country. As far as the Government are concerned that would be a success. What a nonsense.

On the Deregulation Bill and the Government’s policies on regulation, every impact assessment makes it clear that for every new regulation that comes in, two have to go out. Why is there no assessment on the value of what the regulation does? Why are numbers so important here? What magic is there in the figure of 35 regulations to be opted back into without a full assessment of those that are being permanently ditched? In all these contexts, numbers alone are irrelevant. What matters is their value. That is what we need to understand from the Minister tonight. Can he bring clarity to this debate and explain in practical terms, not political ones, the value of this very long exercise, which has no doubt been very expensive?

[Lord Faulks]

My Lords, I thank all noble Lords who have taken part in this debate. It has been remarkable for the self-discipline exercised by speakers in dealing with complex matters that raise strong feelings on various sides. It is not the first time that we have visited these issues in this House. As the noble Lord, Lord Hannay, said, in July the matter was dealt with in some considerable detail.

At the outset, I pay considerable and very well merited tribute to the House of Lords committees, which have scrutinised and re-scrutinised with great rigour the complex mechanism and the pros and cons of the opt-out and the opt-in. If that has not been made sufficiently clear beforehand, I make it clear now. The House is greatly in the debt of those committees, their chairmen and members. The process has been extremely thorough, and the House of Lords, through those committees, has done its job very well.

--- Later in debate ---

[Lord Bowness]

I hope my noble friend will forgive me for interrupting. My question was whether there was any further parliamentary process. I think I am convinced that it is the end of the road as far as this House is concerned.

[Lord Faulks]

My noble friend is, of course, quite right to ask me to qualify that. I should say that there is nothing more for Parliament to do. I understand that there may or may not be a debate in relation to the European arrest warrant in the House of Commons.

I will now deal with what happened in the House of Commons. It forms part of the concern of my noble friend Lord Boswell. I came back from China this weekend, where I had been discussing the rule of law issues which, as my noble friend Lord Lamont said, are very much a matter of priority for this country. On the flight back, I had the opportunity of reading the debate in the House of Commons; it was not an edifying experience. The expectation was that the debate would focus on the European arrest warrant, but that was not one of the measures that required any legislative action, so it was not within the scope of the Motion to approve the statutory instrument.

The Home Secretary, my right honourable friend Theresa May, indicated that the debate could concern itself by “proxy” with the European arrest warrant. The party opposite would have none of this and there ensued a bad-tempered and rather uninformative debate that eventually resulted, after three votes, in the statutory instrument—the subject of the Motion—being approved and the European arrest warrant not being fully debated. This did not reflect well on Parliament. I am glad to say, albeit by an amendment, your Lordships’ House does not have the procedural impediments that the House of Commons has, and all 35 measures, insofar as it was necessary, could be debated and, indeed, have been.

The European arrest warrant has been the subject of debate—

[Lord Stoddart of Swindon]

The Minister said that the debate became a bad one because of the behaviour of the Opposition in the House of Commons. Surely I am right in believing that the Government were reprimanded by the Speaker, and that is something quite different. It seems to me that he has made an allegation against the Opposition that really is not true.

[Lord Faulks]

I am certainly not in a position to criticise the Speaker; it would be entirely improper for me to do so. I am entitled to comment on what transpired in the House of Commons. I did not acquit anybody of contributing to what was a thoroughly uninformative debate. The position, as far as the Opposition were concerned, was that the shadow Home Secretary felt that the scope of the debate did not permit her to discuss the European arrest warrant, and that was the view of many in the House of Commons. The Speaker gave the observations that he did, but I do not think that it is appropriate for me to criticise him or not.

The shadow Home Secretary was also asked during the debate whether the party opposite would have exercised the opt-out—and, if so, which measures it would have opted into. Her response was, “Nice try”, so I am not sure that that was a particularly dignified response to what was a serious question.

[Baroness Smith of Basildon]

The Minister is straying somewhat. He is here to explain the behaviour and conduct of the Government—who were, as the noble Lord, Lord Stoddart, said, criticised by the Speaker. He seems to want to deflect that criticism on to the Opposition. May I suggest that he returns to his brief and tries to explain how the Government made such an absolute shambles of this whole process?

[Lord Faulks]

It is necessary, I would suggest to the House—and I am about to move on to the European arrest warrant—for those who may not have had the opportunity to read the debate to appreciate what went on. Those who have read it will form their own view as to how helpful it was.

Considerable anxieties have understandably been felt in the past about the European arrest warrant and about particular cases. There is insufficient time, as the House will understand, for me to go into the details of those, but what is important is the fact that the European arrest warrant now has additional safeguards. In one of the more useful contributions to the debate in the other place, the right honourable James Arbuthnot pointed out that there is considerable judicial oversight of the European arrest warrant. Following the changes in the law made by the Anti-social Behaviour, Crime and Policing Act, a British judge must now consider whether the alleged offence and likely penalty are sufficient to make someone’s extradition proportionate. A British judge must also consider whether measures less coercive than extradition are available to foreign authorities.

As to dual criminality, the European arrest warrant must be refused if all or part of the conduct for which a person is wanted took place in the UK and is not a criminal offence in this country. Furthermore, a decision to charge and try an individual can be questioned by use of video link without the suspect having to leave the United Kingdom. These are all important safeguards which should mitigate some of the anxieties that have been expressed about the unsatisfactory nature of foreign jurisdictions. A large number of people who are not necessarily enthusiasts for the European project have been persuaded that it would be a great mistake to lose the European arrest warrant. I respectfully agree with the noble Baroness, Lady Smith, that this is a correct decision.

My noble friend Lord Lamont asked whether it was possible for us to come to a separate, bilateral treaty with other European Union countries—after all, we have extradition agreements with other countries. There is of course the considerable problem of timing, as the House will be aware. Denmark negotiated a separate deal. The deal struck through Protocol 36 means that the United Kingdom has to follow the rules set out. Denmark has its own protocol so could make its own arrangements, but they are not the arrangements that we would want to copy. Every agreement that Denmark has made separately with the EU has required it to submit to the jurisdiction of the European Court of Justice and, in effect, the Danish agreement simply binds Denmark to EU law by another means—which I suspect is not what most who are interested would have in mind. Of course it would be possible, but it would be cumbersome and it would probably be expensive to make such separate agreements. Far more sensible is to have the now tried and improved system of the European arrest warrant that we have.

[Lord Lamont of Lerwick]

My noble friend did not address the point that I raised in respect of the Government’s safeguard, so called, that extradition should not take place until a decision has been made by a foreign court to prosecute and to try—I drew a distinction between a decision to prosecute and a decision to try. I referred to the numerous delays that took place in the case of Mr Symeou. That was why I suggested that the safeguard was not really a safeguard. My noble friend has not addressed that point.

[Lord Faulks]

We consider that the safeguard should be capable of answering that particular problem. The important issue is whether there is an unnecessary delay. It will be appropriate to look at the particular facts of the case and for the judge responding to the warrant to decide whether he or she is satisfied about the arrangements. That, I suggest, is an answer, and unfortunate cases such as that of Andrew Symeou, which I accept was an egregious example of the European arrest warrant not working satisfactorily, should be avoided.

[Lord Hannay of Chiswick]

Before the Minister moves on from this point, does he not agree that it is perhaps a pity that our debate tonight has not mentioned explicitly one really crucial dimension for this country, which is the Anglo-Irish dimension? It is a very important one. All of us who have taken evidence on this matter are perfectly clear that the European arrest warrant has enabled the depoliticisation of extradition proceedings between the two parts of the island of Ireland. That has been of enormous benefit to both of them. If we were to junk the European arrest warrant, the Irish have no substitute to put in its place because they removed the Council of Europe convention when they transposed the arrest warrant into their legislation. Therefore, we would risk falling back into the worst turmoil of politicised extradition proceedings, often for enormously serious crimes.

[Lord Faulks]

I am very grateful to the noble Lord, Lord Hannay, for his intervention. I absolutely agree with his observations. Indeed, moving from the specific to the general, what is really important about the European arrest warrant is that it is not exclusively about Europe. It is a practical matter about criminal justice, acknowledging the fact that crime knows no borders, and that we must have satisfactory arrangements. This is the best way of securing those. Whatever noble Lords’ views—relative enthusiasm or otherwise—for the European project, the arguments seem to be overwhelming now in favour of the European arrest warrant.

Time does not permit me to go into arguments about matters that we have not yet reached a conclusion on; for example, Prüm was mentioned. The United Kingdom will not join Prüm on 1 December. Regarding law enforcement and other member states, I have no observations about the conversation referred to by the noble Lord, Lord Sharkey. Others have said that it will bring benefits. Agreement has been reached that we will conduct a full business and implementation case and a small-scale pilot. This will consider not only any benefits of Prüm but also the civil liberties protections available. This will be reported to Parliament by way of a Command Paper in September 2015 and the House will then be given a vote on the matter.

Regarding the lateness of bringing this matter to Parliament, I submit to the House that this is the earliest possible opportunity following full agreement of the Council, which was achieved only the week before last when Spain finally dropped its reservation to approve a good deal for Britain and a package of measures vital in the fight against serious crimes. It will not have escaped the notice of the House that it is only nine working days before 1 December 2014, so we cannot afford further delay. For that reason, it is right that we consider, and vote on if necessary, the overall package and the regulation together.

The noble Baroness, Lady Smith, asked about a letter written by the Leader of the House. That letter is dated only today. However, it forms part of a communication between the noble Baroness and the noble Lord, Lord Boswell. I will make sure that she and all participants in the debate receive a copy of that letter. It explains the process by which this matter has reached the House and attempts to clarify the position. I entirely accept that the debate has come at a rather later hour than any of us would have liked. One of the reasons it was scheduled tonight was to accommodate the EU Committee, but matters went on longer than expected so noble Lords have had to be economical in their observations in relation to the various issues that have arisen.

We have now reached the position—albeit criticisms have been made forcefully and, no doubt, with some considerable justification—where we have completed the process in this House. We have had a number of debates about the merits, which we have answered—

[Baroness Smith of Basildon]

My Lords, can the noble Lord answer the questions that I have posed, which I have posed in all our debates, or can he write to me with his answers, given the time that we have and that he still has not reached my questions?

[Lord Faulks]

Clearly, I do not have time to go through the reasons why we have not opted into all the measures that we have not opted into. The presumption is that we opt in to matters that we consider are in our national interest, and we have given reasons for doing that.

Time is running against me. I entirely accept that matters might have been more expeditiously dealt with, but a number of factors caused delays. The Government have been kept very much up to the mark by your Lordships’ House. I hope that with the explanation that I have been able to give and the letter which has so recently been written, the noble Lord, Lord Boswell, will feel inclined to withdraw his amendment to the Motion.

[Lord Boswell of Aynho]

My Lords, at this late hour, perhaps I may briefly distil the debate into three considerations. The first is the remarkable complexity of the issues involved. I noticed that the noble Baroness, Lady Ludford, asked about the 11 into 10 problem with the regulations, which was not answered in detail, although the noble Lord, Lord Sharkey, referred to it. I answer, in no sense criticising anyone nor intending to wind up on all the points that have been made, that that was the framework directive on freezing orders, and the United Kingdom had already opted in to the post-Lisbon amending legislation, so Protocol 36 no longer applied to the framework. Although the Explanatory Note was slightly—I am sure, unintentionally—misleading on the point, it was true that this had to be transposed into national law but, contrary to the Explanatory Note, it was not among the 35 measures under consideration. I mention that because it is a good example of the complexity of all this.

At the same time, alongside all that complexity, there are some simple practical issues. Are we happy for terrorists to cross the Irish land frontier and not have any recourse to extract them? Are we happy for people to commit crimes across Europe of a very unpleasant nature, often co-ordinated as part of a criminal gang, and for us to have no recourse? Are we happy for the judicial systems to work alongside each other? There is complexity and simplicity.

The Minister has acknowledged that there is considerable concern about the handling failure, which was, frankly, the substance of my amendment. He has been both generous in his comments about the scrutiny that we have carried out and modestly contrite about the failures that may have occurred. This is now the moment to move on, particularly in view of the fact that there is strong but not universal support for the substance of the 35 measures.

In concluding, I should like to say how grateful I am for the support and thoughtfulness that have been expressed in the debate. Collectively, we have made our point and, on that basis, I beg leave to withdraw the amendment.