Criminal Justice (European Investigation Order) Regulations 2017

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 6th December 2017 Grand Committee

I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I do not propose to deal with the post-Brexit situation; that is a land from whose bourn no traveller returns unscathed. I will, however, raise with my noble friend a couple of questions around the situation as proposed in the EIO.

I need to declare two interests. First, I am a trustee of a charity called Fair Trials International. As the name implies, we are concerned with the operation of justice. I do not speak for the organisation. As far as I know it has no objections to the EIO in principle. I support the idea that we have an opportunity to execute judicial arrangements swiftly, clearly and fairly. I hope, therefore, to get reassurance—I am sure that I will get it—from my noble friend about how things operate on the ground in real life as opposed to the calm deliberations at a quarter to seven on a Wednesday evening in the Moses Room. Secondly, I was a member of the Secondary Legislation Scrutiny Committee, and I am afraid that I was the person responsible for raising the “temporary” issue. I left the committee half way through this matter, so I have form where this is concerned.

It is obvious that for a state to hand over a citizen to another state is a fundamental decision. One of the primary reasons for the existence of individual states is the protection of their citizens as individuals. I hope that the Minister and the Committee will forgive me if I go through a practical example for a couple of minutes and get the Minister to explain to me how the real-life situation works. I note from paragraph 3.1 of the Explanatory Memorandum that so far only nine countries have signed up to the regulation. There is a larger list in Schedule 2 on page 40 of the SI, so I presume that all will eventually become signatories and abide by the convention.

My real-life example is not of concern to noble Lords: we all know where to press the hot buttons to protect our position. There are, however, many people who are less able to defend themselves. Let us assume that I am a football fan and I am going to Bucharest in Romania to watch a European football match. That country is on the Schedule 2 list, not on the list in paragraph 3.1 of the Explanatory Memorandum. Let us assume that it has signed up to this. I am going to see my team play Dinamo Bucharest, a good, quality European team. I go to the match and it is fine. After the match I go into a bar with some friends. We have some drinks and a good time is being had by all, but a fight breaks out in the street outside, somebody is stabbed, and people spill into the bar to try to get away from the violence. Understandably, the police are called. Of course they either anticipate trouble—or sometimes welcome it, as a chance to have a bit of a go at the football fans, whom they do not necessarily regard very highly. I am sitting there with my friends and am required to give my passport number and details, which I am happy to do, and then I go home.

A couple of months later, the man who was stabbed outside has died, and I am served with an EIO to come and give a witness statement about what I saw and what happened to me that night. This is where I would like the Minister to take me through the process. I assume that the EIO is then served, like the European arrest warrant, through a magistrate, probably through Westminster which is where the EAWs go, but I would like to be certain about that. The magistrate can dismiss the application, but if he grants it, as I read this regulation, various options are open to him. He can make a deposition under oath, arrange a telephone conference call, arrange for an interview by closed-circuit television, or he can arrange for my physical transfer. As I understand it, I have to consent to transfer, although I would like the Minister to confirm that.

If I am transferred, that places a considerable burden on me for reasons which I shall explain in a minute. How can I be certain that the magistrate, or whoever is the investigating authority, is certain that the transfer is the last resort? It may be that the police and the investigating authorities in Bucharest would much rather have me present, saying, “We really would like to get Hodgson here because he’s a serious witness, and we don’t think it’ll work well with closed-circuit TV”. How do we make sure that that is the last resort? After that, who is it who actually lets me go? The noble Lord, Lord Faulkner of Worcester, asked in the Secondary Legislation Scrutiny Committee,

“whether it will be the Home Secretary personally who will be authorising the prisoners to be sent abroad under these orders or some designated official and if it is an official, what sort of official will it be?”.

Mr Hurd, a Member of Parliament, replied that it will be “the Minister”. Does that mean every single EIO goes across the Home Secretary’s desk? I will be delighted to be told that that is the case. The idea of the EAW is that it is a much faster and slicker arrangement than that. I would therefore like to be certain that the answer—which I am sure was given in good faith—is accurate.

On arrival, when I have been transferred to Bucharest, I give my evidence. However, there is a question about the availability of translation services—that need not concern us because it is not part of this regulation—not only of whether the questions are being adequately translated, but also of whether I understand their significance. The questions asked in different jurisdictions may have different weight attached to them, but that is another question. How do I know when I will be free to return? There is a suggestion here that the authorising person, the Minister, will say that it will be so many days or weeks. Will it happen and how is my judicial representative able to say, “That’s not fair. It’s too long”. Alternatively, is it just ex cathedra with, “Sorry, you’re going for 10 days”, or a fortnight, or whatever? When I am there, and the police are certain that they have got me bang to rights, innocent though I am, they say, “Thank you for your evidence, that’s great”, but they say to themselves, “The case isn’t quite ready yet, but it’ll be ready in two or three days. Since Hodgson’s clearly guilty, let’s hang on to him”. “Two or three days” becomes a week, becomes two weeks, three weeks and so on. We need be clear about what “temporary” means and how it works. Nick Hurd makes it perfectly clear in a letter to the committee that a prisoner “must be returned”, but he does not say actually when. I am a football fan. A month without any pay may interfere with my ability to pay my rent or mortgage, put food on the table for my family and, above all, if I do not know when I am going to come back, to make alternative arrangements to deal with my developing domestic circumstances.

I repeat that I do not oppose the measure as it is a useful adjunct to inter-judicial co-operation between us and other countries, making sure that people who have committed crimes are dealt with and sorted out quickly, but I am worried about the potential gap between the perfectly drafted legal system laid out in the papers before us and what actually happens to a person who is not terribly sophisticated, does not always know their rights and may or may not have access to first-class legal advice. He or she surely needs to have real protections before we transfer them to a state elsewhere—any state. It is a matter of principle that we look after our citizens. We need to make sure that if we send them abroad, we do so with the proper protections and provisions to ensure that their interests as citizens of the United Kingdom are safeguarded.

[Baroness Ludford (LD)]

My Lords, I welcome this short debate. The European investigation order is a valuable instrument. Therefore, I am pleased that the Government are implementing it. I was involved with it when I was a Member of the European Parliament. I was the lead MEP for the liberal group and involved in all the co-decision negotiations with the Council in finalising it. It has been a source of regret to me and, I think, to my political colleagues in the European Parliament that successive British Governments have not fully taken part in the fair trial rights side of the EU programme alongside enforcement measures such as the European arrest warrant and the European investigation order—that partly relates to what has just been said.

I am a patron of Fair Trials International and a huge admirer of its work. The EIO is a sort of European arrest warrant for evidence. A fair criticism of the European arrest warrant is that it was occasionally used as a fishing expedition. It was meant to be used only from the perspective of charge and prosecution.

[Lord Hodgson of Astley Abbotts]

“Trial-ready” is the word.

[Baroness Ludford]

I do not think that that is in the EAW framework decision, but it was much discussed in the Julian Assange case with Sweden. Certainly, you had to be on the brink of those further stages of charge and prosecution—not when you just wanted to interview someone and were trying to collect evidence. I hope that the EIO will take the weight off the European arrest warrant and stop it being misused. That is all good. The EIO is for evidence; the search is for interception. It is much more efficient for police and prosecutors than relying on the rather clunky EU mutual legal assistance convention of 2000, which has never really worked. As the committee points out, it would be a very retrograde step to fall back on the MLA convention, just as having to fall back on bilateral extradition agreements under the aegis of the Council of Europe will be an alarmingly backward step if the UK is unable to stay in the European arrest warrant if we Brexit. So, like the noble Lord, Lord Rosser, I echo the question put by the committee about what concrete arrangements the Government propose to continue the efficiency and effectiveness that the EIO will deliver, as the European arrest warrant already does. In one of the committee’s reports, the Minister apparently said that,

“he hoped that close cooperation between Member States on security matters would continue, but the precise nature of future relations would be the subject of negotiation”.

Many of us are really quite eager to know how the Government propose to continue this essential cross-border police and prosecution co-operation.

--- Later in debate ---

[Lord Young of Cookham]

I do not have the answer at my fingertips. Clearly, it would have to go through the judicial process. As I indicated, we have transferred only one prisoner in the past five years and in that case there was not a problem with the prisoner being returned. In these circumstances the European convention offers similar protections to those in the charter but, unlike the EAW, which I think was mentioned by the noble Baroness, no detention or transfer can take place without consent under an EIO. I am advised that an urgent procedure is available if the person is in custody. That seems only fair. But I take the point that the noble Lord and the noble Baroness would like more information on this. I am also advised that effective dispute resolution mechanisms and protections for UK and EU citizens will be agreed as part of the negotiation on our future relationship with the EU.

That brings me to the final point raised. The fact that both noble Lords raised this indicates that when we do negotiate post Brexit, these particular issues need to be tied down to avoid any problems of delay in resolution. The question was: what contingency plans are in place in case no deal is reached with the EU and, indeed, what are we planning to do as part of an agreement? As the Prime Minister made clear in her Florence speech, we are unconditionally committed to maintaining Europe’s security now and after we leave the EU. What we must do now is agree the mechanisms to support ongoing co-operation. It is in no one’s interests that either the UK or Europe suffers a loss of operational capability as a result of the UK’s exit.

We have proposed a bold new strategic partnership with the EU, including a comprehensive agreement on security, law enforcement and criminal justice co-operation. That was set out in a paper on those subjects, which I think was debated earlier this year. We are seeking an overarching treaty with the EU that provides for practical operational co-operation, facilitates data-driven law enforcement, and allows multilateral co-operation through EU agencies. It is too early to say what future co-operation we may have in relation to individual measures, such as the EIO. In leaving the EU, we will end the direct jurisdiction of the Court of Justice of the EU. But there is significant precedent for the EU to have co-operation with third countries, including co-operation closely aligned to areas of EU law, but there is no precedent for a third country to submit to the jurisdiction of the CJEU. Effective mechanisms will be necessary to ensure that obligations that are agreed will be enforced after negotiations on the treaty.

I was asked what contingency plans are in place in case no deal is reached with the EU. We are confident that continued practical co-operation between the UK and EU on law enforcement and security is in the interests of both sides. The EU 27 made it clear in their Article 50 negotiating guidelines, published in April, that:

“The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.


So we approach these negotiations anticipating that an agreement in this area can be reached. We do not want or expect a no-deal outcome. But a responsible Government should prepare for all potential outcomes, including the unlikely scenario in which no mutually satisfactory agreement can be reached. That is exactly what we are doing across the whole of government.

I hope I have addressed the specific issues raised.

[Lord Hodgson of Astley Abbotts]

As I understood it—and the noble Baroness, Lady Ludford, referred to this—one of the weaknesses of the EAW was that it was being used for fishing expeditions, which tended to undermine it, and that the EIO was to fill that gap; in other words, you could ask questions which did not require an EAW, which had been brought into disrepute in some senses. But that is not the case, is it? You have to be a prisoner before you can have an EIO, so we are back to fishing expeditions again. There is no way that an EIO could be served on the ordinary person in the street because they are not a prisoner. Our concern about fishing expedition continues, I think.

[Lord Young of Cookham]

It goes back to what the EIO aims to do. Basically, it is a judicial co-operation mechanism for providing assistance in investigating and prosecuting criminal offences and it replaces the existing scheme; that is, the existing EU and Council of Europe mutual legal assistance measures. It does this through introducing mutual recognition of other member states’ judicial decisions. As my noble friend said, it standardises the process for making requests by using a template form rather than a letter of request, and it specifies time limits for responding. All the evidence shows that it is already working quite well. A number of requests have been made and processed, and it is proving to be a much more efficient system than the one it replaces. As more member states sign up to the EIO, we believe that it will be an improvement on the previous mutual legal assistance scheme.

I am not sure that I have fully understood the point made by my noble friend, in which case I shall read it again in Hansard. I will drop him a line and hope to give him and the noble Baroness an assurance. As I have just said, the EIO is a mutual legal assistance measure. An individual can give a voluntary statement under an EIO or could be compelled to come to court in the UK in the same way as in domestic proceedings. I hope that that gives my noble friend the answer he was seeking.