Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Monday 25th March 2019 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, these regulations form part of the Government’s ongoing work to ensure that there are functioning domestic laws in the event that the United Kingdom leaves the European Union without a deal. They relate solely to the Government’s no-deal exit preparations. Should Parliament approve the withdrawal agreement, which incorporates an implementation period, and pass the legislation necessary to implement that agreement, the commencement of these regulations would be deferred until completion of the implementation period.

The regulations amend or revoke legislation relating to five EU measures; first, the victims of crime compensation directive. That directive established that each EU member state should have a national scheme to provide compensation to victims of violent intentional crime. It also provided for liaison between the relevant authorities of each member state to facilitate the compensation of victims. The Criminal Injuries Compensation Authority manages the compensation scheme for England, Wales and Scotland. Northern Ireland has a separate scheme; however, the Criminal Injuries Compensation Authority is the assisting authority for the whole of the United Kingdom and liaises with other member states to help victims apply for compensation from them.

The second matter is the European protection orders. The directive provides a framework to allow certain kinds of protection order made in criminal proceedings in one member state to be transferred to another EU member state where it can be recognised and enforced.

Thirdly, there are the European supervision orders. These enable the transfer of certain supervision measures between EU member states. For example, bail granted subject to conditions issued in criminal proceedings in one member state can be transferred to another EU member state to be recognised and supervised there.

Fourthly, the mutual recognition of financial penalties provided a framework so that certain financial penalties imposed in criminal proceedings in one member state can be forwarded to another EU member state for enforcement.

Fifthly and finally is the matter of taking account of convictions in EU member states in the course of new criminal proceedings in the United Kingdom. This requires known prior convictions in another EU member state to be taken into account—for example, when passing sentence—to the extent that national law requires national convictions to be taken into account. This means that, upon sentencing, the court in any member state can treat convictions from another member state exactly as they would domestic convictions.

The purpose of this instrument is to address the changes necessary in domestic law upon our exit, in the event that we exit without a deal. I will not go into the detail of what the SI does for each EU measure or tool—I hope that the regulations themselves, the Explanatory Memorandum and the provisional impact assessment are already clear on that—but I will briefly draw attention to the main points and to what occurs in the event that we leave without a deal.

For the victims of crime compensation directive, the instrument will revoke the implementing legislation relating to mutual assistance since it provides a system of intra-EU member state co-operation that will not be present in a no-deal scenario. I emphasise that the regulations do not impact on our national compensation scheme; that will continue.

For the European protection order directive, the instrument will revoke the implementing legislation since the scheme can operate only between EU member states, and in this scenario the United Kingdom will not be one. We take the opportunity of these regulations to make transitional provision to ensure that any order made consequent to an incoming request received prior to exit will continue to be enforceable until its conclusion, whenever that is, so that persons will remain protected. I should add that this system is seldom used. My understanding is that only four orders have been made by the courts of England and Wales in respect of such protection orders since it came into operation, while only six applications have been received from EU member states. That is over a period of three years.

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[Baroness Chakrabarti (Lab)]

My Lords, in all sorts of matters, particularly perhaps in matters Brexit, it is not as fashionable as we might like either to be succinct or fair to one’s opponents. So as not to exacerbate the Alice in Wonderland world described by noble Lords, I would say that the Minister is in an unenviable situation. Surely we all know that the problems are not with this draft instrument but with any possibility of exiting the European Union without a deal. It would be a disaster in all sorts of areas—trade and other aspects of co-operation—but in the context of criminal justice co-operation, we all ought to acknowledge that the idea of no deal is particularly disastrous and dangerous for people in this country and in the European Union, especially for victims of violent crime and survivors of domestic abuse.

Having said that at the outset, I invite the noble and learned Lord the Minister to agree and to do his best with particular questions about the various areas of policy and co-operation covered here. We acknowledge that it is not about the instrument. We are in an unenviable position. The clock is ticking down and we seem to be no closer to a final scheme for what criminal justice co-operation will be. The problem is that the political declaration is vague on matters of security and justice co-operation. As we have heard from noble Lords, access to Europol and European criminal records is essential, as is access to the extensive database system. Perhaps we can all agree on this. I am sure that, in due course, the Minister will do so as well and he will suggest that this instrument and its provisions are not an ideal alternative to having a proper scheme for co-operation after Brexit.

If the Minister is able to do so, I wonder if he might discuss what the total cost to the UK authorities might be from not having, for example, access to the system of formal communication in relation to compensation for victims of violent crime. The Explanatory Memorandum makes a lot of store about the total number of requests in each relevant case. Can he assist on the total amount of compensation that has resulted in the past three years in relation to this request? Thare might give more of a sense of the importance and severity of the matters we are dealing with.

In relation to European protection orders, paragraph 7.3 of the Explanatory Memorandum states,

“the UK will no longer be able to issue requests to other EU Member States and expect them to be acted upon”.

This is predominantly about domestic violence. Can the Minister confirm that this change could make life less safe for the survivors of domestic abuse after exit day? Could the Minister perhaps articulate how travel restrictions would be placed on the perpetrators of domestic abuse in such a scenario—for example, on a man who is an EU citizen with a woman victim who is a UK citizen—without an EPO? Similarly, on financial penalties, does the Minister have any idea what the potential cost would be to the UK authorities for losing access to the framework?

In all this, I am making the point that it is not really fair to impugn the instrument itself but, as there are people beyond this Room who are still advocating a no-deal Brexit, it is none the less important to try to get the Minister’s thoughts on some of these matters.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. I begin by observing that my noble friend Lord Deben has misunderstood the purpose of these regulations. They are not concerned with the transfer of data or information or with access to it; they are concerned with what the courts do with it once they have it. I will elaborate on that in a moment.

In light of the observations that have been made, particularly by the noble Lords, Lord Thomas and Lord Thomas—this is a bit like a rugby commentary featuring Joneses, but I will not go there—and the noble Baroness, Lady Chakrabarti, I shall take each of the five relevant regulations’ directives in turn, pick up each of the points that have been raised and then come back to the issue of data and how that is being addressed.

The first is the victims of crime compensation directive. Let us be clear: in the event of a no-deal exit—I am not seeking or advocating that; I am dealing with the situation that arises in that eventuality, as the noble Baroness observed—any EU citizen who is the victim of a violent crime in the UK will still be able to proceed to make an application under the UK scheme in respect of a violent criminal act in the UK. Conversely, even though we no longer have the relevant directive in place, where a UK citizen suffers such an act in a member state that has ratified the European Convention on the Compensation of Victims of Violent Crimes, which is the preceding European Council convention, they will also be able to access compensation, and there are 18 EU members that are signatories to that convention. In addition, there are some member states that are not signatories to the convention but whose criminal compensation schemes admit of applications just like the UK’s for any citizen who suffers that violent criminal conduct within their country. There are at least two which fall into that category; I believe that they are Ireland and Latvia. There are in fact a total of 20 existing EU member states where it will be possible to continue applying for compensation under these schemes.

To follow up the point from the noble Lord, Lord Thomas of Gresford, the intention is that the CICA will support victims in accessing compensation from those countries where an application can be made—in other words, it will do essentially what it does at present, which is to assist the victim in directing how and where the application should be made in the circumstances. I readily accept that that is not a complete answer to the existing scheme; it is deficient to the extent that at least seven existing EU member states will not facilitate such an application. That said, it is important to put this into context. As the noble Lord, Lord Thomas, observed, not every application has been notified to the CICA in the UK. In so far as it is notified, though, we are aware that in the past year, 2017-2018 to the end of February, there were 59 requests for assistance, 29 notified unsuccessful applications and only two notified successful applications. I readily accede that not all those who made an application notified that fact and not all those who made a successful application notified that, so the data is limited. As a consequence we do not know the sums that were awarded in these cases because there is no requirement for notification. It is a limited compass and what will be in its place is not as good as what exists at present. Nobody is pretending otherwise, but it is appropriate that we put the statute book into proper form in order that people are not confused when they come to determine what their rights are in this context.

Turning to the European protection order and the point raised by the noble Baroness, Lady Chakrabarti, it is simply not possible to operate that scheme if we leave without a deal because under the terms of the relevant provision only the court of a member state can make a request and under the scheme it can make a request only to the court of another EU member state. In the event that we receive an application before exit, we will process it because it will have been competently made by the other member state and we will be receiving it at a time when we are a member state, but after exit we cannot make such orders because they will not be accepted as competent by the EU 27 states, and we cannot expect to receive any because they cannot competently make such a request of the United Kingdom once it ceases to be a member state. To put this into context, I should emphasise that this order is very rarely used. Four EPOs have been issued by the English and Welsh courts and the Northern Ireland authorities since this provision was implemented in 2015, and only two of those were recognised by the receiving EU state over a period of four years. In the same period, six EPOs were received by the courts from other member states of which four were recognised and two were declined, so we are talking about tiny numbers in this context.

On the European supervision order, I would, with respect, seek to correct the noble Lord, Lord Thomas of Gresford. The supervision order is directed to pre-criminal trial matters such as bail. It does not apply to any post-criminal trial order of the court. The reference to supervision is perhaps a little misleading in that context. It deals essentially with a situation in which somebody is placed on bail under bail conditions and the relevant supervision order can be enforced in another EU member state with the result that a citizen of an EU member state who is subject to bail may move into another EU member state without breaching the relevant conditions of their bail order. That is essentially what it deals with. It has again been very rarely used since implementation in 2015. The number we had received at the time the regulations were laid was four since 2015. Interestingly, a further six have emerged since the regulations were laid, I think five of which have come from Cyprus. I do not know whether they all pertain to the same group, but the numbers are very small. In turn, the courts in England and Wales have issued two such supervision orders, but neither is extant. They have both expired because the relevant parties have been discharged or have gone through the criminal trial process. We do not anticipate that this will have any major impact.

The financial penalties order came into force in 2012, since which time we have received about 3,759 requests for enforcement of civil penalties, most of them from the Netherlands, and we have issued about 3,400 requests for the recovery of financial penalties, most of them to Poland.

We have one point to bear in mind. Where we issue a request for a financial penalty to be recovered, we do not get the money. It is retained by the EU member state that makes the recovery. To that extent we do not get a financial benefit, but where we do benefit is in the event that we are requested to recover a financial penalty; we can then retain it. The sums involved are relatively modest. The average fine is in the region of £300 based on figures collected in 2015. If that is applied to the number of requests we are getting, we are still talking about a sum of approximately £100,000. However, I emphasise that these estimates are approximate. As I say, it is not a case of us recovering the money that has been imposed by a UK court for reasons best known to the European authorities, I am sure; rather, the proceeds go to the jurisdiction that actually recovers the funds in the event that they do so.

[Lord Thomas of Cwmgiedd]

On the Minister’s last point, the ability of a court to fine someone who is here knowing that it will be enforced of course means that the court considers that a financial penalty might be more desirable than the imposition of a short term of imprisonment. Bearing in mind the desire to get rid of or reduce the number of short terms in prison, has anyone looked at the impact that imposing fines that we know will not be enforced will have on the policy of trying to reduce short terms of imprisonment?

[Lord Keen of Elie]

I do not believe that any distinct analysis has been made of that issue, but the noble and learned Lord will be well aware that the problem of recovering financial penalties is hardly limited to people who have gone to Poland or the Netherlands. There is a far more fundamental problem with recovering financial penalties within the United Kingdom. That is much greater in its extent and impact on the sentencing policies of the courts than that of the few people who move abroad after a financial penalty has been imposed and not paid. Of course we are looking at the whole area of sentencing policy with regard to the issue of short-term sentences, and we can only encourage the courts to move away from them in circumstances where they have confidence in the imposition of non-custodial sentences, which of course include community orders and financial orders. I would suggest that this is a relatively small aspect of a bigger problem, but I acknowledge the bigger problem. It is one that requires to be analysed fully as we take forward our sentencing policy.

That takes me neatly or otherwise on to the final point, which is the question of taking into account prior convictions. Just to be clear: this regulation addresses the question of what the court does once it has the information and the data. Indeed, the question of data transfer is, I am pleased to say, a matter for Home Office Ministers.

[Baroness Vere of Norbiton (Con)]

My noble and learned friend speaks for the Government.

[Lord Keen of Elie]

My Whip has just reminded me that I speak for the Government. Of course I do—with relish. Be that as it may, Home Office Ministers have in fact already brought forward an SI on plans to deal with the transfer of data under the ECR and that has already been debated and approved. But perhaps it is more important to point out that, with regard to the transfer of data concerning previous convictions, that can be secured under a European Council directive and therefore there remains a mechanism by which we can address the matter. The information flows will remain and travel under the mutual legal assistance convention of the European Council.

I come now to the purpose of the regulation itself. Under the existing European directive, the courts are bound to take account of a previous conviction in another member state. That is implemented by way of Section 143(2) of the Criminal Justice Act 2003. In the event that we are looking at convictions that occurred in a non-EU member state, the courts have a discretion to have regard to that previous conviction pursuant to Section 143(5) of the 2003 Act. The point that this regulation addresses is that, if we cease to be an EU member, we are no longer tied into the scheme for EU member states pursuant to Section 143(2) of the 2003 Act, but of course we will remain in a position to deal with this as a discretionary matter, as we would with other third-party countries.

The point of this regulation is simply that there is no logical reason for treating one set of third-party countries differently from another set: that is why the regulation brings the position with the EU 27 states into line in the event that we leave without a deal. That is what we are seeking to address, but I underline the point I made in my opening speech that this regulation is not to do with the transfer of data or access to information but with how the courts deal with it once they actually have that data or information. I hope that that covers all the points that have been raised by noble Lords.

Motion agreed.