Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020

Lord Reid of Cardowan Excerpts

Thursday 26th November 2020 Lords Chamber

[Lord Reid of Cardowan (Lab)]

My Lords, first, I thank the Minister, who I think is aiming for the Stakhanovite prize for her endeavours at the Dispatch Box.

I say right at the beginning that it is a bit of an obfuscation for the Minister to say that the regulations are scenario-neutral. They are in the limited sense, in that whatever the nature of the deal, they will be put through, but of course they are being introduced in the whole context of Brexit, which is the biggest change imaginable in the scenario for law enforcement and counterterrorism. The Minister’s allusion to the neutral scenario reminded me that one old philosopher used to say, “We have free will”, but, as he pointed out, we do not have free will in circumstances of our own choosing. So the regulations might be scenario-neutral but they are in the wider scenario of Brexit, and that is what I want to refer to today.

Obviously, as the Minister implied, I, like others in the House, will not oppose these regulations. It is in all our interests to have confidence in our law enforcement capabilities and operations after Brexit. Therefore, I do not intend to oppose them but I want to make some observations.

The first and most obvious to everyone is the desperate lack of time available for our law enforcement agencies to adjust to any new framework or operational procedures. It is obvious that we are now only weeks away from the end of the transition period and still the two parties—like children in the playground playing “Don’t push me or I’ll push you”—are issuing statements every week without any word of substantial advance in them. Meanwhile, our law enforcement and security services still do not know what legal regulatory framework they will be operating under after New Year’s Day. Nor do they know what the practical impact or implications of any security and criminal justice deal will be for their ability to keep the public safe.

Will the Minister therefore tell us how the Government have engaged with our law enforcement agencies or, for that matter, with their European counterparts to ensure that the appropriate arrangements will be in place so that relevant cases can be actioned with confidence and not delayed or stopped? Later, I will refer to ECRIS, the European Criminal Records Information System, to which the Minister referred. Obviously, we need confidence that outstanding cases will not grind to a halt, as that would diminish our ability to tackle criminality and prevent terrorism.

The second issue arising from this timing pressure is the uncertainty caused. We do not know, even at this stage, whether we will have a deal or no deal. Regardless of the assertions that this measure is scenario-neutral, it will have an effect on the practical application and operational capabilities of our law enforcement agencies. In November, the Minister—not the noble Baroness but the Minister in the House of Commons—rather blithely told the House that if negotiations

“do not conclude successfully, we will move back to pre-existing tools and powers.”—[Official Report, Commons, 5/11/20; col. 528.],

as though this was, again, scenario-neutral. But presumably those pre-existing powers and tools were less effective and less satisfactory than the subsequent arrangements made within the European Union, otherwise there would have been no point in adopting the new arrangements. To reinforce that point, Mr Martin Hewitt, the chair of the National Police Chiefs’ Council, laid out the consequences, and I could not put it more concisely myself. He said that

“the loss of some or all of the tools will mean that, even with contingencies in place, the fallback systems will be slower, provide less visibility of information/intelligence and make joined-up working with European partners more cumbersome.”

That could not be plainer. Does the Minister therefore accept that a failure to conclude negotiations successfully will inevitably involve a deterioration in our capacity to combat crime and insecurity, as laid out by Mr Martin Hewitt, who presumably knows a little bit about these matters? I have some specific questions for the Minister. In her opinion, what is the likelihood of that situation arising? What contingency plans are in place for the loss of these vital tools? What is the certainty regarding Europol arrangements or the Schengen Information System? What about the loss of the European Criminal Records Information System, which effects about 4,000 requests every month? If I understood the Minister correctly, applications that are already in that system will continue. I accept that, but what about the 4,000 a month that will happen after 1 January 2021? What are the arrangements and availability of information for those? What are the details of the fast-track extradition arrangements, which are to replace capabilities enjoyed under the European arrest warrant? Is it not the case that diminished capabilities on data and information sharing would seriously damage the fight against crime, terrorism and insecurity?

The fact that such questions remain unanswered at this late stage indicates just how precarious the position is. As I said at the beginning, I am not opposing this. Today’s regulations are necessary, but they are not sufficient to inspire confidence or engender certainty that our agencies will maintain the standards of law enforcement that they have hitherto reached in order to fulfil our legal commitments on law enforcement and counterterrorism. That is why I give them my very qualified support.