EU: Police and Criminal Justice Measures

Lord McNally Excerpts

Tuesday 9th July 2013 Lords Chamber

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the following Statement was made by my right honourable friend the Home Secretary in the other place earlier today.

“With permission, Mr Speaker, I would like to make a Statement on the decision on whether the UK should opt out of those EU police and criminal justice measures adopted before the Lisbon treaty came into force.

As honourable Members will be aware, this is a stand-alone decision which the Government are required to make under the terms of the Lisbon treaty by 31 May 2014, with that decision taking effect on 1 December of that year. It covers around 130 measures, some of which it is clearly in our national interest to remain part of. But if we wish to remain bound by only some of the measures, we must exercise our opt-out from them all, en masse, and seek to rejoin those that we judge to be in our national interest.

The Government have committed to a vote in this House and the other place before formally deciding on this matter. We shall honour that commitment in full. Next week, honourable Members will have the opportunity to debate and vote on this approach. Following our discussions in Europe, another vote will be held on the final list of measures that the UK will formally apply to rejoin.

Let me briefly set out the rationale by which the Government have approached this decision. We believe that the UK should opt out of the measures in question for reasons of principle, policy and pragmatism and that we should seek to rejoin only those measures that help us to co-operate with our European neighbours to combat cross-border crime and keep our country safe.

On principle, I am firmly of the belief that the UK’s international relations in policing and criminal justice are first and foremost a matter for Her Majesty’s Government. In policy terms, the UK has—and will continue to have—the ability to choose whether it should opt in to any new proposal in the field of justice and home affairs. It is therefore right that we take the opportunity to consider whether we wish to retain measures that were joined by the previous Government and to decide on a case-by-case basis whether we are willing to allow the European Court of Justice to exercise jurisdiction over them in the future. Finally, the Government are being pragmatic. I have said before that we will not leave the UK open to the threat of infraction, and fines which run into many millions of pounds, by remaining bound by measures we simply cannot implement in time. That would be senseless.

In a number of areas, the measures relate to minimum standards in substantive criminal law. Even before their adoption, the UK already met or exceeded the vast majority of these standards and will continue to do so, whether or not we are bound by them. As people have become more mobile in recent years, so too has crime. The Government have sought and listened carefully to the views of our law enforcement agencies that combat it. We understand that some of the measures covered by this decision are important tools which they need to protect the British public. The Government have identified 35 measures which we will be seeking to rejoin in the national interest.

That set of measures, on which we propose to begin our discussions with the European Commission and other member states, is laid out in Command Paper 8671, which is published today. I want to be clear: what must happen next is a process of negotiation with the European Commission and other member states. These negotiations will determine the final list of measures we formally apply to rejoin, but we promised that we would set out these measures clearly and give honourable members time to consider them before asking them to vote, and this is what we have done.

One of the measures that we will seek to rejoin, and on which I know many honourable Members have strong views, is the European arrest warrant. I agree with our law enforcement agencies that the arrest warrant is a valuable tool in returning offenders to the UK. Its predecessor, the 1957 European Convention on Extradition, had serious drawbacks. The arrest warrant has helped us to secure and accelerate successful extradition procedures—as shown by the case of Osman Hussain, one of the failed London bombers of July 2005, who was extradited back to the UK from Italy in less than eight weeks. More recently Jeremy Forrest, the teacher who was sentenced last month for absconding to France with one of his pupils, was extradited back to the UK less than three weeks after his arrest. Since 2009 alone, the arrest warrant has been used to extradite from the UK 57 suspects for child sex offences, 86 suspects for rape and 105 for murder. In the same period 63 suspects for child sex offences, 27 suspects for rape and 44 for murder were extradited back to Britain to face charges. A number of these suspects would probably have not been extradited back to Britain without the arrest warrant. We owe it to their victims, and their loved ones, to bring these people to justice.

However, the European arrest warrant has its problems too, as honourable Members have eloquently explained in this House. The previous Government had eight years to address these concerns and did nothing. This Government have taken action and today I am proposing additional safeguards to rectify these problems and increase the protection offered to those wanted for extradition, particularly British citizens. A number of honourable Members have explained how European arrest warrants have been issued disproportionately for very minor offences. I will address this by amending the Anti-social Behaviour, Crime and Policing Bill, which is currently in Committee, to ensure that an arrest warrant can be refused for minor crimes. This should stop cases like that of Patrick Connor, who was extradited because he and two friends were found in possession of four counterfeit banknotes.

We will also work with other states to enforce their fines and ensure that in future, where possible, a European investigation order is used instead of a European arrest warrant. This would mean police forces and prosecutors sharing evidence and information without requiring the extradition of a suspect at the investigative stage.

Other honourable Members have expressed concern about lengthy and avoidable pre-trial detention. I will amend our own Extradition Act to ensure that people in the UK can be extradited under the European arrest warrant only when the requesting state has already made a decision to charge and a decision to try, unless that person’s presence is required in that jurisdiction for those decisions to be made.

Many Members, in particular my honourable friend the Member for Enfield North, will recall the case of Andrew Symeou, who spent 10 months in pre-trial detention and a further nine months on bail in Greece, only to be acquitted. The change that I am introducing would have allowed Andrew Symeou to raise, in his extradition hearing, the issue of whether a decision to charge him and a decision to try him had been taken. It would likely have prevented his extradition at the stage he was surrendered and, quite possibly, altogether. We will also implement the European supervision order to make it easier for people like Mr Symeou to be bailed back to the UK.

Other honourable Members are concerned about people being extradited for conduct which is not criminal in British law. I will amend our law to make it clear that in cases where part of the conduct took place in the UK, and is not criminal here, the judge must refuse extradition for that conduct.

I also intend to make better use of existing safeguards to provide further protections, so I will ensure that people who consent to extradition do not lose their right not to be prosecuted for other offences, reducing costs and delays. We propose that the prisoner transfer framework decision should be used to its fullest extent so that UK citizens extradited and convicted can be returned to serve their sentence here. Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant, we will ask, with their permission, for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. This change could have prevented the extraditions of Michael Binnington and Luke Atkinson—sent to Cyprus, only to be returned to the UK six months later.

To prevent other extraditions from occurring at all, I intend either to allow the temporary transfer of a consenting person so that they can be interviewed by the issuing state’s authorities or to allow them to do this through means such as video-conferencing while in the UK. Where people are innocent, this should lead to the extradition request being withdrawn.

These are all changes which can be made in UK law—and which could have been made by the party opposite during their time in government. Co-operation on cross-border crime is vital, but we must also safeguard the rights of British citizens. The changes that we propose will do that.

Before I conclude, I am conscious that honourable Members want to know our approach to the new Europol regulation. Let me say that I fully recognise the excellent work of Europol and its British director, Rob Wainwright. Honourable Members will recall Operation Golf, a joint operation led by Europol and the Metropolitan Police, which cracked down on a human-trafficking gang operating in Ilford and led to the release of 28 trafficked children and the arrest of 126 suspects. It is for reasons such as this that we are proposing to rejoin the existing Europol measure.

On the new proposal, the Government have today tabled a Motion as the basis for a ‘Lidington-style’ debate on the floor of the House next week, following the debate and vote on the plan that I have outlined today. That Motion states that we should opt in post-adoption, provided that Europol is not given the power to direct national law enforcement agencies to initiate investigations or share data that conflict with our national security.

For reasons of policy, principle and pragmatism, I believe that it is in the national interest to exercise the United Kingdom’s opt-out and rejoin a much smaller set of measures that help us to co-operate with our European neighbours in the fight against serious and organised crime. I also believe that Her Majesty’s Government must strike the right balance between supporting law enforcement and protecting our traditional liberties. What I have outlined today will achieve both those goals. I commend this Statement to the House”.

--- Later in debate ---

[Lord McNally]

I am grateful for the noble Baroness’s response to the Statement. I noted that she thought that it had common sense and moderation. Indeed, there were times during her response to the Statement where there was a suggestion that we had shot her fox, in that all the disasters to which she was hoping to point—about not taking note of national security and effective policing—are not there. The Statement of my right honourable friend the Home Secretary puts those matters right to the fore, as is demonstrated in the list that we have put before the House today.

There was hardly a hint that this little problem was left by the Labour Party’s negotiators for the Lisbon treaty. As the Home Secretary mentioned in her own remarks, the then Government did precious little to address these issues while in office. We therefore make no apologies for having used our time in office to look at these matters in detail. My point when we were discussing this at Questions the other day was that they are serious issues that deserve proper and serious consideration. The document published today, Command Paper 8671, is a sign of the candour and transparency with which the Government intend to approach this matter. The document contains not only the full list of the measures with an explanation of the protocol under which they have been produced, but also six Explanatory Memoranda from various concerned departments, which we hope will be of help to both Houses in the debates to come.

I make no apologies for our now embarking on some interesting negotiations. We have taken the matter seriously and have produced a list which anybody objectively looking at the exercise will see goes to the core of the issues left by Protocol 36.

I have just been told that we published five Explanatory Memoranda, not six—stop press.

[Baroness Smith of Basildon]

I hoped that the noble Lord had been passed answers to the questions I had asked him.

[Lord McNally]

I am answering the questions. For example, the noble Baroness asked whether foreign citizens charged in the UK would be safeguarded. Yes, the safeguards will apply to all those subject to the European arrest warrant. The noble Baroness asked on what basis the decisions would be taken. The Government believe that we should exercise the opt-out and then seek to rejoin the measure where it is in the national interest to do so. The Government have considered the impact of each measure on public safety and security, whether practical co-operation is underpinned by the measure and whether there would be a detrimental impact on co-operation if we pursued it by other mechanisms. The impact of the measures on civil rights and liberties has also been considered.

The noble Baroness asked me if I had done a word count on the various issues. We have said that we intend to opt in to 35. As she says, a number—we think abut 14—of the original list have been repealed and replaced. There are about another 20 measures that retain the minimum European standards. However, the noble Baroness’s kind of quizzing approach really misses the point of what this exercise is about. Through today’s Statement, the Government have sent a clear message that we have addressed the problem left by Protocol 36—which would have been faced by any British Government and which the previous Government showed little enthusiasm for addressing—in a very practical way that will give both Houses of Parliament the time and the opportunity for input into negotiations which the Government will pursue with due seriousness and the intent of success.

[Lord Taverne]

My Lords, I am glad that the negotiations between the Conservatives and the Liberals inside the coalition have come to a sensible conclusion. In passing, one wonders what has been achieved in exercising the block opt-out; what we are left with having opted out of is not of any great significance.

The Conservatives have sensibly given way, contrary to their original stance, on the major measures for police and crime co-operation in the European Union. There is nothing more difficult in politics than changing your mind in the light of the evidence. It appears as if that is what the Conservatives in the Government have done, and I applaud them for that.

It is also fair to say that this has been a major victory for the Liberal Democrats in the coalition, and for this House, particularly the important work and results communicated in the Bowness and Hannay committees. It is also of very great importance that it has been a signal defeat for the UKIP-and-Tea-Party tendency inside the Conservative Party.

I ask two questions of the Minister. Is there any indication of the present attitude of the Commission to the opt-out proposals and what sort of timetable is envisaged? Secondly, will the Conservative leadership in the Government, including the Lord Chancellor and the Home Secretary, now join with Labour and the Liberal Democrats in exposing UKIP as the party which is soft on crime?

I am sure the Minister will agree that since UKIP rejects any legislation for co-operating on crime in the European Union, its policies can only benefit people-traffickers, porn-merchants, paedophile rings, money-launderers and other criminals who operate across borders, as they increasingly do.

[Lord McNally]

My Lords, on these specific questions, I have seen only the initial response from the Commission that was carried on the news-tapes; as far as I could see, that response was constructive in terms of welcoming this approach from the British Government. Of course we have had to get to this point before going into more formal discussions, but officials have had technical discussions with the Commission and the Council, focusing on the legal framework under which the decision will be made, to ensure a shared understanding of the legal processes around the 2014 decision. I know that my right honourable friends the Justice Secretary and the Home Secretary spoke today to Commissioner Reding and Commissioner Malmström respectively. There is no doubt that the Commission has responded in a way that we find constructive. I will cover another point made by the noble Baroness, about whether there would be gaps and lacunas in this. That would not be in the interests of any of us; we will negotiate with both sides to make sure that the move from one jurisdiction to another is a smooth one.

On the question of UKIP and how our respective parties respond to it, that is a matter for the political campaigners. However, in this Statement my right honourable friend the Home Secretary has demonstrated what we would expect of her, given her high office. She has taken account of the national security and policing needs in coming to these decisions, and she should be congratulated on that.

[Lord Davies of Stamford]

My Lords—

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[Lord Hannay of Chiswick]

My Lords, I apologise for remaining on my feet, but as the noble Lord, Lord Richard, said, I chaired the committee that wrote the report to which the Government have not found it in their wisdom to refer in this Statement.

One consequence of the Statement, which I thank the Minister for repeating, is that the committees which have worked together on this issue will now reopen the inquiry and provide the House with a second report before any final vote is taken. Does the Minister agree that this Statement makes, frankly, a pretty good mockery of the Government’s undertaking to engage with Parliament on this issue? The original decision was announced in Rio de Janeiro, rather further away than the studios of the “Today” programme, which is the normal distance from Westminster at which such things are said. That was followed up by a Statement in the House which preceded any consultation with this House, with the other place, with the devolved parliaments and with the professions.

Now we have a Statement that simply ignores the views of your Lordships’ EU Select Committee, which was supported by members of all three parties and of none and which came to the conclusion that the Government had not at all made a convincing case for triggering the block opt-out. That they do not even find room in the Statement to refer to that report is perhaps to be explained by the fact that the Government’s response to it is now two weeks overdue, and we have not yet seen it.

Can the Minister confirm that a second vote will be taken in this House, as in the other place, before any final decisions are reached, and that that debate and the vote will be taken in the light of the Government’s success in negotiating with the Commission and the Council on the measures that they wish to rejoin? Will the Government provide both Houses with a report on those negotiations well in advance of the second vote? Frankly, it is pretty odd to ask both Houses to vote on a 159-page White Paper within about a week.

[Lord McNally]

My Lords, on the point about the committee’s report, we will respond to that in due course. I hope that as we move forward we do not get bogged down in the niceties of protocol. The report from the noble Lord’s committee was influential in the discussions that have taken place. This is a little bit like a game of three-dimensional chess. In reaching decisions, the Government are trying to keep both Houses informed and to keep relations and channels open to the Commission and to member states. I hope Members of the House will understand that the issues covered by the 2014 decision are numerous and complex. We have been conscious of the need to ensure that any information we provide is as accurate and as informative as it can be.

Members of the House will be aware that the document today with its five explanatory memorandums is a measure of that commitment to put the information before the House as quickly and as fully as possible. Of course, I think it is implicit in everything that has been said that a second vote will be taken when the outcome of these negotiations are known. Common sense dictates that this will not be finessed through or carried through with smoke and mirrors. Both Houses, with all their experience and expertise, will demand the full facts on which they will base that second decision.

[Lord Davies of Stamford]

My Lords, is there not something very odd and illogical—weird, bizarre, even—about this Statement? It goes at some length into the merits of the proposals, or measures, that the Government intend to opt back into, so why opt out of them in the first place? It does not say anything at all about the de-merits of the measures that the Government want to abandon definitively. It is not surprising that the House seems to have come to a consensus this evening that what the Government have been conducting is essentially a charade. Will the noble Lord accept that this is a charade not entirely without cost? There will be the cost of an unnecessary negotiation. There will be the exasperation caused to our partners by the fact that we treat them in this particular way. There is, of course, the risk that we will not be able to renegotiate in exactly the fashion we want our resumption of the measures to which we wish to adhere in future—unless of course the Government have already received assurances in advance about that, in which case I hope the noble Lord will be frank and tell the House. Is it not also true that the Government embarked on this quite unnecessary, gratuitous and risky course simply for reasons of the most squalid party-political nature—designed simply to buy off their own Eurosceptics and to keep UKIP from making inroads into the Tory Party vote?

[Lord McNally]

That intervention would have a scintilla of credibility if it did not come from the Benches that negotiated the specific option with which we are now dealing. The noble Lord cannot get away from that fact. For heaven’s sake, why was Protocol 36 negotiated in the first place if it was not for the opportunity that the House is now taking? The noble Lord can score all the party-political points that he wants, but this was the legacy of the Benches opposite; the Government are dealing with it—like many other things. We are dealing with this, as my right honourable friend has emphasised, with a clear focus on the best assistance we can give to our policing and the best protection we can give to our national security. I am very happy that the Government are able to bring forward such a coherent programme, which is now open to both Houses to study and for a negotiation to progress.

[Lord Lloyd of Berwick]

My Lords, I will be very brief. I rejoice that the Government have decided that, after all, we need the European arrest warrant, together with Eurojust and Europol and the cross-border police co-operation. These are on any view the most important of the 35 measures which are due for retention—if, of course, we are able to opt back in.

Given the uncertainty surrounding the opt-in process, and given the fact that we are already subject to the jurisdiction of the Court of Justice of the European Union in respect of all the many police and justice measures that we have opted into since 2009, are we not taking an unjustifiable risk in opting out of what is good, including the 35 measures which are agreed to be in the national interest, in order to get rid of the other 95 pre-Lisbon measures, which are of no real importance to us, nor even of great relevance to us, one way or the other? It seems to be an unjustifiable risk we are taking for no apparent reason.

[Lord McNally]

I concede a lot of logic in what the noble and learned Lord has said. The fact is, however, that we had the Protocol 36 exercise to carry through; we have discussed it inside Government and with Parliament on a regular basis; and we have listened to the views of the committee of the noble Lord, Lord Hannay, and others. We have suggested a way forward. Is it a way forward with risk? Yes it is. All such enterprises have an element of risk. However, we can move forward with a degree of confidence once we get past some of the nitpicking about who did what, where and when, and get down to the central issue of whether we can successfully negotiate with our European colleagues on matters of our national interest and, I respectfully suggest, of Europe’s interest. What has encouraged us is that the soft soundings that we have taken have led us to believe that we can carry out meaningful, fruitful discussions and negotiations that recognise the risks that the noble and learned Lord mentioned, but, because we will do this with good will and an intention to succeed, and with colleagues who have similar good will and want us to succeed, will minimise those risks.

[Lord Bowness]

My Lords, I thank my noble friend for repeating the Statement. He will not be surprised to know that, as the former chairman of one of the sub-committees that prepared the report, I associate myself with the regret expressed by the noble Lord, Lord Hannay, that we have not had a response within the normal and required time, although there appears to have been time to produce the 159 pages of White Paper.

The noble and learned Lord who spoke just now referred to risk. At the seminar on this issue held by the European Union Select Committee, a distinguished participant said, vis-à-vis risk and the difficulties of renegotiating re-entry, that the game was not worth the candle. I endorse that 100%.

I turn to specifics. The Statement says that the Government wish to rejoin the existing Europol measure. It also says that they do not intend at this stage to opt into the new measure. I regret that because it means that we will not have a vote in the negotiations, and a future opt-in to the new Europol provision will depend on certain matters being dropped from the current draft.

In preparing a list of the 35 measures, did the Government take account of the report to your Lordships’ House on the UK opt-in to the new Europol regulation that I believe was debated last week, which makes it absolutely clear that there are four other Council decisions that may not be repealed and replaced by the current Europol proposal, and which Europol advised were directly connected—that is, the existing Europol and a possible new Europol? It follows that whatever happens with the new Europol, if we wish to stay in the old Europol and are successful in renegotiating that, we will need the four separate Council decisions that are listed in footnote 39 on page 10 of the report. As far as I can see, none of them is included in the 35 circulated today. Am I correct? Is it an omission? If it is an omission, will it be put right? If it is an intentional omission, what is the thinking behind it?

Perhaps I may ask my noble friend, in all sincerity, whether we may have a very close examination of all the other measures before we go to Brussels to renegotiate, in order to make sure that there are no others that we should have opted into.

[Lord McNally]

I regret that we have reached 20 minutes. I say to unlucky Members who did not get in—I made a mess of this last time—that this is just the beginning. We have a long way to go and there will be lots of opportunities to examine both Europol and other matters.

I make it clear that we support Europol as it currently exists. This is why we wish to rejoin the existing Council decision on Europol. The new regulation proposes additional obligations that could put at risk the independence of our law-enforcement agencies. We do not support it and have indicated that we will seek to opt into the new regulation, post adoption, provided that Europol is not given the power to direct national law-enforcement agencies to initiate investigations or share data that conflict with national security.

There is no contradiction here. Our recommendation on the Europol regulation is about participation in a future measure governing Europol. It has no impact on our current participation in Europol. The Government continue to value Europol, but we feel that the Commission’s proposals go too far in an area that we consider poses a risk to the independence of our law-enforcement authorities. Our message is clear. We should get the required changes and we will seek to opt into the new regulation, post adoption, provided that Europol is not given the power to direct national law-enforcement agencies to initiate investigations or share data that conflicts with national security.

I shall read Hansard carefully and if I have not covered the points made by the noble Lord I shall do so in a letter. However, I am already overrunning my time and we shall return to this matter.