Brexit: Dispute Resolution and Enforcement (European Union Committee Report)

Lord Hope of Craighead Excerpts

Wednesday 17th October 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a pleasure, as always, to follow the noble Lord, Lord Thomas of Gresford. Like him, I want to pay to tribute to the work of the sub-committee and to its thoughtful and well-researched report. I think it right to say that, when it was preparing its report, the situation it was contemplating was very troublesome; it is certainly no less troublesome now, as the noble Lord, Lord Thomas, pointed out. As the noble Baroness said, the report was published on 3 May. Here we are, some five months later, seemingly no nearer than we were then to finding solutions to the many problems that it raises. If solutions are being found, we are not being told about them. This lack of information is unsettling. It makes one doubt whether anything that will measure up to what we really need is being achieved.

The Prime Minister has made it clear from time to time that she understands very well that we must have a means of resolving disputes if our future relationship with the EU is to work. In her Florence speech in September 2017, she said that to make the principle of co-operation work we will need a strong and appropriate dispute resolution mechanism. Reporting to Parliament a few days later, in October, she said that the Government were preparing a bold, new strategic agreement to provide a comprehensive framework for future security and law enforcement. She referred to the idea of a treaty, which would exist between the UK and the EU. However, whatever was in her mind at that time does not appear to have surfaced in the form that she was describing. She came back to the subject in Munich in February 2018 and again at the Mansion House on 2 March, talking then about the arbitration mechanism that we would need to ensure that disagreements about the purpose or scope of the agreement could be resolved fairly and promptly.

I think we can all agree with these aspirations, but the real question is: how near are we to achieving them? Are they capable of being achieved at all given the red lines set at the outset of these discussions? A framework for EU-UK partnership in civil judicial co-operation was published in June, but I come immediately to the White Paper from July on legislating for the withdrawal agreement to which the noble Baroness referred. It is 38 pages long and contains 157 paragraphs, but of these only one page and only four paragraphs deal with justice, home affairs, security and defence during the implementation period. It is said that the UK and the EU have agreed distinct provisions in the withdrawal agreement, but it does not say anything about what has not yet been agreed. Surely, now that we are so close to Brexit, we need to be told where the discussions are going, where the areas of agreement are and what is yet to be agreed.

It seems inevitable that some aspects of our future relationship in these areas will have to be left over for discussion during the implementation period. But, as paragraph 122 of the report points out, if we do not “bring forward pragmatic proposals” soon,

“it will be too late”.

That is certainly the case in the sphere of judicial and security co-operation. Furthermore, as Judge Ian Forrester, our judge on the General Court of the European Court of Justice, warned us last week, there needs to be a legal framework when you talk about criminal enforcement and criminal investigation. It simply cannot be done on the basis of a cordial, friendly understanding. That is the way the EU works, and it is not alone. That is the way that any agreement between states in this area has to be. To bind them together, they require a legal framework.

The Lord Chancellor said in a Written Statement published last week that the UK values the EU’s tools for judicial co-operation in criminal justice. He highlighted,

“the importance of close operational working between member states to ensure that they function efficiently”.—[Official Report, Commons, 10/10/18; col. 17WS.]

But, unless we do something about this before exit day, these tools will not be available to us. We will fall over the cliff edge. Yet this is the position into which we seem to be drifting, with no solution in sight, and time is running out.

There is much in this report to discuss, but the future of the European arrest warrant really needs to be sorted out now, and I will say a little bit about that. The way it works illustrates Judge Forrester’s point. It was the product of an agreement reached at the Tampere European Council in 1999 that an area of freedom, security and justice should be created in the EU. Extradition between member states was to be abolished and replaced by the mechanism, established by a 2002 Council framework decision, of a system of surrender between judicial authorities. The aim was to remove the complexity and delay that extradition involves. Everything that binds the member states together has to have a treaty base, and the treaty base for the Council decision is to be found in Article 34 of the Treaty on European Union. It says that the Council’s framework decisions shall be binding on member states as to the result to be achieved, but it leaves to the national authorities the choice of form and methods. That is the system to which we are a party in our capacity as a member state.

Our choice of form and method is set out in Part 1 of the Extradition Act 2003. The result, as regards the relationship with other member states, is achieved through the legal framework which the Council decision has set out. I use the word “achieved” because we need to appreciate that to get all the member states to agree to this system was a real achievement, as several of them object to the surrender of their own citizens to other states. This is particularly so in the case of Germany, which has a firm constitutional bar on the extradition of German citizens to a foreign country. Nevertheless, Germany was willing to agree to their surrender to another member state. That system has been working to our great advantage for the past 15 years.

The potential loss of the EAW will be very damaging. It is difficult to see how we can get round constitutional objections to extradition, such as that of Germany, without it. It is one of the most serious security-related issues for Northern Ireland, as the EU Committee pointed out in paragraph 165 of its report Brexit: The Proposed UK-EU Security Treaty, which was issued in July. It has been described as a vital tool for the Police Service of Northern Ireland for the extradition of suspects from the Republic of Ireland—because it gets round the political objections which used to be voiced before the system came into place—and its loss as the “biggest practical vulnerability” in Northern Ireland arising from Brexit. So more time to work out a permanent solution is a high priority, and in the meantime we need to ensure that it or something very similar is available during the transitional period.

There is a very simple solution, if only the Government would accept it. The framework decision of 2002—the document the noble Lord, Lord Thomas, described, with its colourings of green and yellow and no colouring at all—will of course remain in place in the EU. So we should seek to participate in it for all of its purposes in the same way, during the implementation period, as if we were still a member state. You can find the precise formula needed to address this problem in paragraph 1(b) of Article 58 of the draft withdrawal agreement. It provides that the 2002 framework decision shall continue to apply between the UK and the EU,

“where the requested person was arrested before the end of the transition period”.

One could regard this as rather a generous offer, particularly as it binds other member states, including Germany, if we agree to it. But the website shows that this has still not been agreed. I wonder why. The reason, I suspect—and as the noble Lord, Lord Thomas, indicated—is that there is an elephant in the room: the European Court of Justice, which is there to resolve disputes about the meaning of the Council decision and how the result is to be achieved. So it is an essential part of the mechanism. We seem to have determined that, as we can have nothing to do with it, we cannot make use of the framework decision after exit day. But it is a very small elephant. Decisions of the CJEU in this field have been very few, and none has challenged the way we do things under Part 1 of our own Extradition Act. As the system is well settled, disputes of that kind are likely to be very few. It is not really much of an obstacle to the agreement if we are prepared to face up to it.

As the report notes and the response accepts, it has been agreed that:

“During the transition, the UK will continue to be bound by the jurisdiction of the CJEU”.


At the very least, we should be seeking to be a party to the framework decision while that period lasts. That is what we should be aiming at as a matter of urgency, if no other solution can be found in the meantime. It surely is plain that if we are to secure agreement we will have to compromise, and this ought to be within our grasp given the position we are now in concerning the role of the CJEU during the implementation period.

The Prime Minister said on Monday that “real progress” has been made in recent weeks on the withdrawal agreement. I hope that the Minister can give us an assurance that progress is being made on this issue. As for the future, overcoming Germany’s constitutional objection will be far more difficult unless we continue to be part of that system. But if we can find a way past that, I very much hope that the Government will recognise that the continued jurisdiction of the CJEU in this limited area would be a very small price to pay for all the benefits that continued participation in the framework decision will bring. There would be a bump in the arbitrary red line which totally rejects its jurisdiction, but it would be a tiny bump in comparison with the huge risks to national security if we do not take that step.

In closing, I mention one further point, on the opening paragraphs of the Government’s response. What are we to do if disputes about the withdrawal agreement cannot be sorted out by the proposed Joint Committee for its implementation and application? Various possible solutions are examined in chapter 3 of the report, none of which—including the arbitration panel—provides a complete answer to this problem. There is, therefore, more work to be done here. Can we not accept that, if disputes of this kind arise during the implementation period, they should be settled by the CJEU, as the Commission proposes? That would at least give us more time to find a solution for the future. Is that, too, not a sensible compromise?