Brexit: UK-EU Security (EUC Report)

Lord Hannay of Chiswick Excerpts

Tuesday 7th February 2017 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, the report we are debating this evening about the implications of Brexit in the field of internal security and police co-operation is truly excellent. I congratulate the committee and its chair, my noble friend Lady Prashar, who introduced the report so eloquently this evening, on its quality. As one who is not a member of the sub-committee but was its chair some years ago, I can say that without self-congratulation but with the benefit of experience. Listening to the debate this evening, I get a slight feeling of déjà vu all over again, because of course we went through all this over Protocol 36, and quite a lot of the personae dramatis are still around, including the Home Secretary, who has of course moved into No. 10, and various other noble Lords around this Chamber this evening who were involved in that.

We should not forget that this report is of course one of a suite of six produced by the EU Select Committee. They are a standing reproach to the Government’s failure until a few days ago to provide even the fairly skimpy indications given in the White Paper. The report spells out in detail why it is in the UK’s national interest now to negotiate the closest possible relationship with the European Union in these policy fields, preserving if possible the great advances in law enforcement co-operation that have taken place over the last few years. I say that about the national interest without the slightest hesitation, because that was the conclusion of the House of Commons by an overwhelming majority and the conclusion of this House by unanimity, only two years ago in 2014. Having said rather a rude word or two about the White Paper, I recognise and welcome that the Prime Minister singled the sector out and endorsed that view about the national interest in her Lancaster House speech. The White Paper continues that work. As other noble Lords have said, the challenge now is to turn that into reality in the Brexit negotiations which begin next month. As the report says, that will neither be easy nor straightforward. Here are just a few thoughts on that.

First, we need to realise that there is a cliff edge in this sector if the two-year period provided for under Article 50 expires without any agreement on either a temporary or lasting solution. This cliff edge is far more real than it is in the trade field, where, as the noble Lord, Lord Kirkhope, said, we can always fall back on the plan B of WTO membership—although that is, in my view, likely to be quite damaging to this country’s economy. But there is no plan B for justice and home affairs. If we go out then, we shall simply drop out of membership of Europol and Eurojust, and we will lose the European arrest warrant overnight. We will lose the ability to extradite wanted criminals out of this country back to the places they are wanted, in one direction, and back into this country when they have committed crimes here—there are many examples of people we have got back in that way. We will lose overnight the Schengen information system, the European criminal records system, the Prüm decisions on DNA and other information, and the passenger name recognition arrangements for civil aviation. That is an awful lot of things which we cannot afford to do without. However, on the day we leave without an agreement, that is what will happen. We should have no illusions about that.

Secondly, any negotiations for the new relationship will not be able to duck the tricky issue of a continuing budgetary contribution. After all, you cannot have this sort of co-operation for free, nor should we think that we can—it costs money. There will have to be some judicial mechanism, and here my noble and learned friend Lord Brown set out with wonderful clarity what the European Court of Justice means in this area and why we cannot simply demonise it, as the Government have been doing systematically for some months now. I have to say I find that fairly astonishing. Look at the 44 years in which we have been under the jurisdiction of the European Court of Justice. Of course there have been occasions when it has ruled in a way we have found inconvenient or even infuriating, but they are as nothing compared to the number of times it has struck down non-tariff barriers in other member states, ruled as illegal state aids that were preventing our firms competing, or removed all sorts of restrictive practices. Why on earth we feel the need to demonise it now, I do now know.

Frankly, whatever we do in the general sense, in this sector we cannot afford to ignore the need for some form of dispute settlement procedure. Such a procedure has to be not only between Governments, which could perhaps be based on a model of the EFTA court, but between individuals, because the European arrest warrant involves individuals. They may wish to take their case to a court, so we have to have somewhere for them to go. If we are to preserve the arrest warrant system, there has to be some recourse for our citizens and for other citizens in Europe to a court or dispute mechanism of some kind. We cannot avoid that. It is welcome that the Government have recognised in the White Paper that there will have to be some form of dispute settlement procedure—having been in a state of denial up to now—but as yet, they have not got very far along the learning curve.

Thirdly, we need to face up to the issue raised by the noble Lord, Lord Kirkhope: we do not just want a static solution that works on the day we leave. We need to produce a living solution that will continue to work in the years ahead when we will be outside the European Union, and the European Union will be developing co-operation in these fields, hopefully in close concert with us.

We really need a process by which Britain can opt in to new measures when it wants to. If not, we will have the agony that was experienced at the other end of the Corridor every time a measure had to be adopted through the opt-in procedure. There was a great rampage about how awful it was that we were accepting this and accepting that; then, when they got into the Division Lobbies, there were about 25 votes against 530. We must try to avoid that. In the negotiations, the Government need to look for a simpler method of opting in to continuing with new legislation, because the criminals will not stop. The international dimension of their crimes will not stop and we will need to work with our former partners if we are to achieve anything like the results we want in this field. That aspect of this continuing issue needs to be taken into account.

The three points I have raised may seem daunting, and they are. I do not doubt that they are difficult for the Government. There will be plenty of naysayers in Brussels and in Westminster, but the mutual advantage—indeed, the mutual necessity—of sustaining close and effective co-operation on these matters should enable those obstacles to be overcome. I look forward to hearing from the Minister how the Government intend to set about doing that, and in particular her response to the three points I have raised. I hope our negotiators will remember one truth: our national internal security neither stops nor begins at the water’s edge.