Brexit: European Arrest Warrant (European Union Committee)

Lord Jay of Ewelme Excerpts

Thursday 8th February 2018 Lords Chamber

Moved by

[Lord Jay of Ewelme]

That this House takes note of the Report from the European Union Committee Brexit: judicial oversight of the European Arrest Warrant (6th Report, HL Paper 16).

[Lord Jay of Ewelme (CB)]

My Lords, I am very grateful for this opportunity to debate the report on the European arrest warrant. Time passes: the report was published on 27 July 2017, and we received the Government’s response, for which I am grateful, on 23 November last year. With the passage of time the subject has lost none of its importance—indeed, rather the reverse.

In 2002, the European Union adopted the European arrest warrant to facilitate extradition between member states. The European arrest warrant seeks to ensure that individuals face prosecution for their crimes or serve prison sentences for existing convictions in the countries where those crimes are committed. Since the referendum on leaving the European Union in June 2016, the Government have frequently underlined the importance of the arrest warrant. The Home Secretary, Amber Rudd, has paid tribute to the arrest warrant’s effectiveness in delivering criminals to justice. Indeed, she has said that it is a priority for the UK to remain part of those arrangements once we leave the European Union.

During the course of the inquiry, we heard from our witnesses about the benefits that the arrest warrant has brought to the UK. Under the arrest warrant we send around 1,000 people a year to other member states while, on average, more than 200 people are sent back to this country. We should recall that the arrest warrant has brought very high-profile criminals back to the UK. They include the fugitive bomber, Hussain Osman, who attempted a terror attack in London on 21 July 2005 and was arrested a week later in Italy. So the advantages of the system are clear. After Brexit, there will continue to be an operational necessity to deport serious criminals from the UK quickly and effectively and to ensure that those who are wanted by the UK answer for their crimes here. Whatever else Brexit may achieve, it will not, I fear, lead to a reduction in crime.

The Government’s intention to continue efficient extradition arrangements, as stated, for example, in the reply to our report, is welcome but appears to conflict with another of their stated aims: to remove the jurisdiction of the European Court of Justice in the UK. The committee heard, for instance, from Mike Kennedy, former head of Eurojust, that if the court is not to be a final arbiter on any instruments of mutual recognition between the UK and EU on future extradition matters, it is unclear how such instruments would operate in practice.

In this context, our report outlines, first, the pronouncements that the Government have made about the future role of the European Court of Justice and considers whether the Government’s desire to remove completely the jurisdiction of the court can sit alongside a workable system of extradition. It then explores alternatives to the European Court of Justice for resolving disagreements between the UK and the EU. It looks in particular at the EFTA court as a possible, if limited, model, but that, in my view, deserves further study. It also questions whether the EU 27 will be willing to agree to bespoke arrangements solely to accommodate the UK’s negotiation objectives. The final section of the report asks whether alternatives to the European arrest warrant are possible and considers the agreements reached between Norway, Iceland and the EU on extradition and the 1957 Council of Europe convention. It concludes that the Norway-Iceland agreement’s dispute resolution mechanism would indeed be compatible with the Government’s desire to end European Court of Justice jurisdiction. However, those states are members of the European Economic Area and participate in the Schengen agreement; their bespoke European arrest warrant arrangements took some 10 years to negotiate and are still not operational, so it is not ideal, and nor was the Council of Europe convention.

The committee also considered possible transitional arrangements for extradition. We stress in the report that even a transitional arrangement that simply extended the EAW in its current form would be difficult to secure. In leaving the European Union, it is the Government’s intention that the UK will no longer be party to other EU arrangements with a bearing on extradition arrangements. They include the European Charter of Fundamental Rights, a suite of EU directives governing criminal procedural rights, EU data protection laws and laws on EU citizenship. The committee also came to agree with witnesses who said that any such arrangement would be likely to include accepting, at least in part, the jurisdiction of the court. That is because any alternative to that jurisdiction would itself take time to negotiate and agree, time that is already at a premium in the run-up to 29 March 2019.

As successive Home Secretaries have said, the European arrest warrant is strongly in our interest. There is no obvious alternative to it, no plan B which would serve our security interest. Or is there? The Government now talk about a security treaty with the European Union which would cover justice and home affairs questions. The details are elusive, although your Lordships’ EU sub-committee will start an inquiry into the proposed treaty shortly. It would help us enormously if in replying to this debate the Minister could tell us more of the Government’s intention and reiterate the Government’s belief that the European arrest warrant is essential and that its substance must be preserved.

Finally, I want to say a word about Ireland and the European arrest warrant. I was in Ireland last week with the European Union Committee, visiting Dublin, Belfast, Londonderry and the borders. The progress since the signing of the Good Friday agreement was palpable, but so was the concern about the future and about the potential impact of not having the European arrest warrant. The Police Service of Northern Ireland outlined the crucial role the arrest warrant has played in fighting crime and terrorism in Northern Ireland and how it has contributed to effective and important co-operation between the two police services operating on the island as a whole. Indeed, the chief constable of the Police Service of Northern Ireland saw the potential loss of the European arrest warrant as his number one concern. I draw attention here also to his interview in the Guardian today.

The chief constable was surely right that extradition arrangements between the UK and the remaining EU member states are already beginning to unravel. Only last week, as we returned from Londonderry, the Supreme Court of Ireland refused for the first time a European arrest warrant issued by the UK on the grounds that the individual concerned would not complete his custodial sentence until the UK had left the European Union. I should add that the Irish court has sought a Court of Justice opinion on the matter, which will reply shortly under its expedited procedures. None the less, coming on top of the Police Service of Northern Ireland’s evidence to the Select Committee last week, these are extremely worrying developments.

So as we await the start of negotiations on transition and after that the negotiations on a final relationship between the UK and the EU—equally elusive—I hope the Minister will spell out in his reply the Government’s plans for ensuring that the substance of the European arrest warrant remains in place during and after the transition period. The security of the people of this country and of the Irish border deserve nothing less than that. I beg to move.

--- Later in debate ---

[Lord Jay of Ewelme]

My Lords, I, too, thank all noble Lords who have taken part in this afternoon’s debate. It has been a debate of real substance. I thank the Minister for rising to the challenge posed by the noble Lord, Lord O’Neill, and including topics of real substance in his reply. As the noble Baroness, Lady Kennedy, my noble friend Lord Hannay and other noble Lords said, this is an intractable problem, and I do not feel that we have reached a real solution to the problem of judicial oversight in this debate. I have no doubt that we will come back to it before 29 March 2019.

Motion agreed.