Brexit: European Arrest Warrant (European Union Committee)

Lord Hannay of Chiswick Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, this House is no stranger to debates about the European arrest warrant. It is a great pleasure to follow the noble Baroness, Lady Ludford, because when, as the then chair of the Sub-Committee on Home Affairs, I worked with the noble Lord, Lord Bowness, on the issue of protocol 36 and the opt-out and opt-in, in which the European arrest warrant was the jewel in the crown, she gave me a lot of helpful advice from her then position on the Justice Committee of the European Parliament.

This House has been much involved. I believe it was the report produced by the Joint Committee that the noble Lord, Lord Bowness, and I chaired, endorsed by the EU Select Committee, which marshalled the evidence that showed just how crucial the European arrest warrant is to law enforcement in this country and thus to our internal security, and which gradually helped to convince an initially sceptical Home Secretary in the coalition Government, one Theresa May, that it was in the national interest to retain the European arrest warrant in operation here even if one had, as we then did, the right to opt out of it. Apparently, that remains the view of the present Government, faced with the prospect of Brexit, and that is welcome indeed. Late converts are often the most convincing of advocates.

Today’s debate on the report of the EU Select Committee on judicial oversight of the arrest warrant, should Brexit take place, has been excellently introduced by my noble friend Lord Jay. It is remarkably timely, as negotiations are about to get under way in Brussels tomorrow, as I understand it, which will require this issue to be addressed. It is also timely because judicial oversight is one of the most sensitive and knotty issues that we will have to resolve if the operation of the arrest warrant is to survive Brexit at all. It is sensitive, above all, as several noble Lords have said, because it will involve not only disputes between Governments but the rights of individuals to have recourse to a judicial procedure if they wish to contest a warrant.

Behind and underlying today’s debate, it is important to remember, as has been stated, that if we leave without a deal, the European arrest warrant will simply cease to exist on that day. There is no plan B available here, as there is, for example, for trade in goods where, as we all know, there is the fallback of World Trade Organization rules. There is nothing for extradition other than a long, agonising effort to negotiate bilateral extradition rules that would, as the evidence we took in 2013-14 showed, replace an effective and rapid system with one that was slower, more costly and less effective.

Remember the years it took us to extradite from this country the terrorist who bombed the Paris Metro. Remember the fugitives from our justice system who lived in the style to which they were accustomed in the south of Spain, and the deeply politicised procedures that occurred when any attempt had to be made to bring terrorists in Ireland to justice. My noble friend Lord Jay spoke at some length about that so I will not go into detail, but it is a very important aspect of this issue. When the Banquo’s ghost of no deal flits through this Chamber, as it will, probably quite a few times, during 2018, I hope that those who are talking about it will just remember some of these facts.

The Government’s response to this report seems reasonably satisfactory as far as it goes, but frankly it does not go terribly far. One point on which I would be grateful if the Minister would speak is the following. On the standstill arrangements that the Government are about to start negotiating, which will follow immediately after our exit and will fill about two years after we leave, they seem to assume that this will automatically preserve the arrest warrant during that period. Will the Minister say whether that view is shared by the Commission? The many years it has taken to extend the European arrest warrant to Norway and Iceland, both third countries, seems to cast some doubt on that because, after March 2019, we too will be a third country.

The criticism of the Government’s response for not going very far relates, above all, to the lack of specificity on the dispute settlement procedures that we could contemplate. There are a lot of words but not much substance, as the noble Baroness, Lady Kennedy, brought out. Why are the Government not prepared to say straightaway some of the approaches they may be prepared to contemplate? We have heard about the EFTA Court with a British judge sitting in that court. Could that be an acceptable route to follow? Perhaps the Minister can say whether there are acceptable routes, and if so, what they are. The excuse that we do not want to reveal our hand is really wearing a little thin, as the clock ticks on. In this context, I have to say that I suspect very strongly that the Government are more concerned to conceal their hand from their own supporters, nurtured for many months on a diet of the demonisation of the European Court of Justice than they are to conceal it from their negotiating partners in Brussels. That cannot continue much longer.

Complex this issue may be, but there are matters of major importance at stake. I wish the Government well in their negotiations in this area. It is in all our interests that they succeed in preserving the European arrest warrant system from damage or impairment. Only those who believe in Brexit at any cost, as an article of faith, not a matter of choice, can think otherwise. The disappearance of the European arrest warrant system will be to lose control, not to take it back.