Brexit: European Arrest Warrant (European Union Committee)

Lord Marks of Henley-on-Thames Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join others in thanking the noble Lord, Lord Jay, for his part in this excellent report and for the thoughtful and persuasive way in which he opened this debate.

I agree with the Prime Minister when, as Home Secretary in 2014, she said, in advocating our opting back in to the European arrest warrant, that our losing the EAW would turn the UK into,

“a honeypot for all of Europe’s criminals on the run from justice”.

The noble Lord, Lord Hannay, pointed out her support for the EAW system. When Naz Shah MP put the Prime Minister’s words to Nick Hurd, the Policing Minister, during his evidence to the Home Affairs Committee on 23 January, the Minister replied:

“The European Arrest Warrant is an incredibly important tool in the box. The data is quite striking. Prior to the implementation of the European Arrest Warrant in 2004, fewer than 60 individuals a year were extradited from the UK to any country, not just the EU. Between 2004 and 2016-17, EAW has enabled the UK to surrender over 10,000 individuals accused or convicted of a criminal offence to other member states. This has included those accused or convicted of murder, child sexual offences and terrorism offences. During that period, the EAW has been used to surrender over 1,400 individuals to the UK to face justice, so it is a very important tool”.


He went on to say that,

“we want to preserve that capability as close to the existing status quo as possible”.

Those words echo those of Amber Rudd, quoted in the introduction to the EU Committee’s report. The noble Baroness, Lady Kennedy, also spoke of the effectiveness of the warrant in combating serious crime across Europe, and all speakers have recognised the importance of reciprocity.

Day after day in this House we hear Ministers answering questions on Brexit topics by saying that the Government’s aim is to maintain our relationship with the EU as closely as possible in its existing form. Those of us who believe that the whole project of leaving the EU is a disastrous mistake have every right to ask, “Then why are we leaving?”.

All speakers in this debate agree that it is crucial for this country to continue to reap the benefits of the European arrest warrant system. The noble and learned Lord, Lord Brown, stressed the remarkable superiority of the warrant system over other extradition systems as it has developed to mitigate the flaws that it had. However, the report highlights the serious difficulties in our retaining the system if we do not accept the jurisdiction of the CJEU. I understand that to be the central point made by the noble Lord, Lord Jay, in opening.

Why have the Government made breaking with the CJEU such an unyielding red line if they want to achieve a deep and special partnership with the EU? I see it more as an unbending rod for the Government’s back than a defensible red line. If the Government genuinely want this partnership, they must accept that in areas of European co-operation, whether on citizens’ rights, trade standards, the environment or cross-border security co-operation, European law will continue to hold sway, and its oversight is now and will remain with the CJEU or something very close to it.

In the legal and security areas, the arguments surrounding the European arrest warrant apply equally across the field. They apply to Europol, the EU agency for law enforcement, which is critical to the fight against serious organised crime, people trafficking, cybercrime and terrorism. It is an agency to which the United Kingdom has contributed greatly, not least through its energetic British director. The UK is probably the single largest user of Europol in the EU.

The arguments apply also to data sharing under the Schengen Information System—the vast database to which EU member states have access under the judicial oversight of the CJEU. They apply to Eurojust, the EU agency that promotes co-ordination and co-operation between EU investigating and prosecuting authorities, and to which the DPP has made it clear that she attaches great importance. My noble friend Lady Ludford stressed the DPP’s complete commitment to the European arrest warrant as well. They apply to protection for citizens under the data protection directive. In civil matters they apply to resolving choice of law issues, currently achieved by the Rome regulations; to dealing with issues of jurisdiction, recognition and enforcement in civil and commercial matters covered by the Brussels I regulation; and to the recognition and enforcement of judgments in family law, covered by the Brussels II regulation. In all these areas Ministers claim to want maximum co-operation, yet they insist on rejecting CJEU jurisdiction.

The noble Lord, Lord Jay, pointed out the difficulties already arising with the European arrest warrant, particularly on the island of Ireland. The noble Earl, Lord Kinnoull, made the same point. I would point out in that respect to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that it was the likely absence of the protection of the Charter of Fundamental Rights that caused the problem with Ireland. I urge him to consider that in the context of his opposition to it.

The Government’s response to this report is typical. It explicitly recognises the need for a mechanism for dispute resolution. Although I cannot manage the eloquence of the language of the noble Lord, Lord O’Neill, on the subject of the Government’s response, I will say that their proposals are uncertain and muddled: uncertain, because all they can say is that they are committed to a constructive dialogue; muddled, because they imply that post Brexit our law can diverge from EU law in all areas, which betrays a fundamental failure to appreciate that for international co-operation to work one law must govern the behaviour of both parties and that law must be binding.

In European arrest warrant cases individuals have a direct entitlement to have their rights under EU law protected by national courts. As the noble Baroness, Lady Kennedy, and my noble friend Lady Ludford pointed out, these are cases involving individual liberty. If the system is to retain the confidence of citizens and governments, there must be judicial oversight at a supranational level, which in this context means the EU level, and it must be binding on all parties. Why should the EU 27 be expected to accept a non-binding alternative arbitration system for the oversight of arrest warrants when they already have a functioning, efficient and binding system in place?

Much is said on the other side about the affront to UK sovereignty involved in accepting the direct application of EU law and the jurisdiction of the CJEU. Yet we accept the UN charter and the jurisdiction of the international court in The Hague, and we accept the jurisdiction of the European Court of Human Rights under the European Convention of Human Rights. Why not the CJEU? If Brexit is to proceed on the basis of continuing partnership, then on all areas covered by the partnership we need to reach agreement on a system of judicial oversight that is both binding and workable.

Although I do not necessarily share this view, one can see the argument that, if we leave the EU, the fact that the CJEU will no longer have a British judge and a British advocate-general would make the court appear one-sided. Well then, will the Minister explain why the Government do not seek to secure that areas covered by new partnership issues arising between the UK and the EU will be justiciable by a parallel court? Call it what you like, but effectively it would be a division of the CJEU but with a British judge and a British advocate-general. Has such an obvious arrangement even been considered by the Government?

This whole issue has been blown out of all proportion by the soundbites of ideologues. The UK has been a successful litigant before the European court. Research for the Institute for Government published in December demonstrated that the UK has the highest success rate before the court of any EU member state. These negotiations are difficult enough without red lines that are illogical, unnecessary and indefensible. If this whole sad enterprise is going to proceed, and if the Government are serious about partnership, then in this, as in all areas, will they please stop posturing and make proposals to our partners that have some chance of being agreed and are realistic and workable?