Criminal Justice (European Investigation Order) Regulations 2017

Lord Rosser Excerpts

Wednesday 6th December 2017 Grand Committee

Moved by

[Lord Rosser]

That the Grand Committee takes note of the Criminal Justice (European Investigation Order) Regulations 2017 (SI 2017/730).

Relevant documents: 4th and 5th Reports from the Secondary Legislation Scrutiny Committee

[Lord Rosser (Lab)]

The Criminal Justice (European Investigation Order) Regulations 2017 transpose an EU directive regarding the European investigation order which standardises the way one member state can ask another for help in pursuing cross-border criminality, through gathering evidence, investigating banking information, executing search warrants or taking evidence from witnesses.

The Secondary Legislation Scrutiny Committee raised questions about how temporary transfers of prisoners to another member state to help with its investigations are to be handled and what assurances there are that the prisoner will be returned. In its fourth report, published on 7 September, the committee said:

“Regrettably, the Home Office has failed to respond in the seven weeks since we made that request. We shall pursue those enquiries directly with the Minister”.


That the committee did, when the Minister of State for Policing and the Fire Service appeared before it on 12 September. I will return to the issue of the Home Office’s failure later.

In its fourth report, the Secondary Legislation Scrutiny Committee stated:

“Given that the changes these Regulations make are all recognised as a significant improvement on the MLA system, the House may wish to know what arrangements the Home Office proposes to make for such exchanges once we leave the European Union”.


I therefore ask the Minister for the answer to the question posed by the committee. In addition, what arrangements would we be left with for such exchanges if we were unable to reach a deal with the European Union on Brexit and leaving the European Union?

Turning to the committee’s concerns in relation to the provision allowing a prisoner, with his or her consent, to be temporarily transferred to the custody of another member state, can the Minister confirm that it will be Ministers who have to authorise such a transfer, rather than an official or officials, and that in so doing Ministers would need to be satisfied that it was only through the transfer being agreed that the necessary information or evidence could be obtained by the member state seeking the transfer?

Moving on from that stage in the process, what will happen if the receiving member state fails to return a transferred prisoner within a timescale which the authorising Minister here would presumably lay down clearly when agreeing to the temporary transfer? What is the redress available, how is it available, and how long would it take for that process to be completed successfully? It would not be a very effective process if it took any length of time at all to activate and for a conclusion to be reached which had real teeth, resulting as a minimum in the individual being promptly returned. I have to say that the responses given to the committee on this issue were, to say the least, somewhat vague. I hope that we can have greater clarity when the Minister responds to this point.

I referred earlier to the Minister for Policing and the Fire Service appearing before the Secondary Legislation Scrutiny Committee. In its fifth report, published on 14 September, the committee expressed its thanks to the Minister for meeting it and for the fulsome apology he made,

“for the lamentable lapse by his department in failing to answer our queries in a timely manner”.

The report went on to say:

“The Committee pointed out that the reason that they had so many questions was because the EM presented with this instrument assumed the reader had an extensive knowledge of both Directive 2014/41/EU and of the current UK system”,


contrary to the committee’s guidance, which,

“makes clear that we expect an EM to assume the reader has no prior knowledge of the subject and a better-targeted EM could have avoided the need for some of our more basic questions”.

Can the Minister say why the Home Office’s Explanatory Memorandum did not comply with the Secondary Legislation Scrutiny Committee’s guidance?

The committee went on to say in its fifth report:

“The Minister described the failure to respond to the Committee’s letter as an isolated incident, and the circumstances around it were being considered at the highest level in the Home Office. The Committee however commented that we had been in this position before: Home Office Ministers in July 2015 and November 2016 had both given undertakings to improve the way that the Home Office’s statutory instruments are presented. This case not only raised questions about the Home Office’s mechanisms for dealing with Parliamentary requests and the priority that they are given but also about the quality of the EM and the clearance process”.


Particularly in the light of the committee’s comments about the EM for this order, can the Minister spell out the changes that were made to process and procedure to deliver the commitments given by Home Office Ministers in July 2015 and November 2016 that the way the Home Office’s statutory instruments were presented would be improved? Can he also spell out exactly what changes have been made to process and procedure following the discussions “at the highest level” in the Home Office on the circumstances surrounding the delay in responding to the committee’s letter and to which the Minister for Policing referred in his oral evidence to the committee?

--- Later in debate ---

[Lord Young of Cookham (Con)]

My Lords, I am very grateful to the noble Lord, Lord Rosser, for allowing us to have this debate on the EIO. I will focus on the principal points raised during our discussions, which are, as I understand it, the failure of the Home Office to respond in time to the request for information from the committee and the language it used—I have read in full the minutes of the Secondary Legislation Scrutiny Committee’s meeting on 12 September. Then there was the question of what happens to the football fan, posed by my noble friend Lord Hodgson, then the issues of what happens to the prisoner transferred and their protections. Finally, there was the broader question of what happens post Brexit.

Rather than read out a fairly long brief about why the EIO is a marvellous instrument, I will focus on the specific issues raised during the discussion, beginning with the failure of the Home Office. The noble Lord, Lord Rosser, made the point that it was not the first time the Home Office had apologised for late submissions to the Lords committee. He asked why the assurances given on an earlier occasion had not been fulfilled and delicately asked why we should believe the assurances that have been given this time.

I begin by apologising yet again, as my honourable friend Nick Hurd did, for the time it took to respond to the request from the committee in respect of this legislation. There was a breakdown in the process for handling this piece of correspondence in the department. It was a serious administrative error. I and Ministers in the Home Office take the business of parliamentary scrutiny very seriously. Officials have looked into what happened to learn the lessons and to ensure this does not happen again. They have now put in place a robust process to improve the quality of the material put before parliamentary scrutiny committees. I read the comments from, I think, my noble friend Lady Finn, who complained about the language used.

This supervision includes personal oversight by Ministers, with a named senior civil servant held personally accountable throughout the development of the draft instruments. New quality assurance and trading interventions are already under way. These are all intended to reduce the need for committees to seek additional information and to ensure that when such requests are made there is a clear line of sight throughout the department to ensure that they are expedited.

The matter has been considered at the Home Secretary- chaired regular departmental Ministers’ meetings, which I now attend, to ensure that it is addressed and discussed at the highest level. I hope that this will assure the noble Lord, Lord Rosser, and others, that we take this very seriously.

[Lord Rosser]

The Minister referred a moment ago to “personal oversight by Ministers”. Can we have it quite clearly, then, that if this happens again, it will not be the responsibility of officials but of Ministers, full stop?

[Lord Young of Cookham]

Absolutely. As somebody who has been a Minister on and off for nearly 20 years, I am a fully-paid subscriber to ministerial accountability and responsibility to this House and the other place. I am not a Minister who will, if this happens again, pass responsibility on to civil servants.

On the question of the language, I apologise again for the quality of the memorandum on this occasion. As I said a moment ago, the Home Office has put in place robust processes to improve the quality of material put before the scrutiny committee, and again, this includes personal oversight by the Ministers, with a named civil servant within the apartment accountable for the development of these draft instruments. As I said a moment ago, the buck stops with Ministers.

In the example given by my noble friend Lord Hodgson, he would not be a prisoner in the UK, therefore the temporary transfer provisions simply would not apply. They apply only if the person is a prisoner in the UK. The Secretary of State then has to be satisfied, first, that the prisoner consents, and secondly, that no alternative means of providing evidence exists. In the evidence given by Stephen Jones on 12 September, we read:

“Baroness O’Loan: What if the prisoner refuses to go? … Stephen Jones: If the prisoner refuses to consent to the transfer taking place, then it will not happen”.


I hope that reassures my noble friend that he can go and watch his favourite football team in Bucharest and be an innocent witness to an exchange which may result in a crime being committed. He can come back to this country confident that he will not have to go back there under the provisions of the EIO.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Rosser, raised the question of what will happen if a prisoner is not returned. First, the temporary transfer of persons held in custody for the purpose of investigation has already been possible for a number of years under the existing mutual legal assistance system, which the EIO replaced, so this order is not introducing a new provision. However, the UK central authority’s records suggest that the numbers for transferring prisoners held under custody are extremely low. We are aware of one instance of this happening in the past five years. The prisoner is normally able to give evidence in person through court or through video telephone conferencing, and it would have to be authorised by a Minister.

Under the directive, a country receiving a prisoner under an EIO must return the prisoner back to the executing state. However, I accept that the point is not explicit in legislation, which I think was the point raised by the noble Baroness, Lady Ludford. As with other matters relating to EU law, the Court of Justice of the European Union will be competent to give a view, in this instance on the application of the directive, and in particular on the interpretation of Article 22.1, which we consider makes it clear that a prisoner has to be sent back to the executing state—the UK—within the period stipulated by the executing state. Such an interpretive ruling would be binding on the member concerned.

[Lord Rosser]

How long would it take to go through this procedure?

--- Later in debate ---

[Lord Young of Cookham]

I think I will respond to those remarks rather than accept them. The noble Baroness prefaced her remarks by saying “notwithstanding any arguments about legal aid”, but I think that that is probably exactly the issue, in that the proposition she has just put forward would mean extending legal aid into an area where it does not exist at the moment. That takes us into a broader argument about legal aid. Perhaps I might offer to write to the noble Baroness if I have misunderstood her comments.

[Lord Rosser]

I raised one question at the end of my remarks which I do not think the Minister has responded to, and I am quite happy to repeat it. It refers to a statement at the end of the fifth report of the Secondary Legislation Scrutiny Committee. I asked whether, first, the Home Office and, secondly, the Government, accept—and will ensure that they abide by—the committee’s clear statement in its fifth report that,

“although an increased volume of SIs was to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny”.

My question was, first, does the Home Office accept and will ensure that it abides by that and, secondly, do the Government accept and will ensure that they abide by it?

[Lord Young of Cookham]

I have in front of me the response given by the Minister to the committee—it was right at the end—to a question from my noble friend Lord Kirkwood of Kirkhope. He asked:

“Can you give us some assurance as the numbers ramp up that you think the quality will not suffer?”.


Mr Hurd replied:

“I can give you as much reassurance as I can. It needs to be tested. There will be a high volume of secondary legislation, but I am absolutely sincere in saying I hope and believe this instance we had to come and apologise for is exceptional and will not be repeated. It is a basic function of any department to support Ministers in the scrutiny process with Parliament. I cannot guarantee that balls will not get dropped at all because to err is human, but that is what has happened in this case”.


In its fifth report, the committee also made it clear that,

“although an increased volume of SIs was to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny”.

I accept that.

[Lord Rosser]

The Minister accepts it on behalf of the Government as well as on behalf of the Home Office, I take it.

[Lord Young of Cookham]

I accept it in the context that I have just repeated it.

[Lord Rosser]

I am not quite sure what answer I have had. I would have thought it fairly clear that if I asked whether that also represented the Government’s view, as opposed to the Home Office view, the Minister could have said either yes or no. I invite him to say either yes or no. Do the Government intend to accept and abide by the statement that he has just repeated, which appears at the end of the Secondary Legislation Committee’s report?

[Lord Young of Cookham]

At the risk of bringing my ministerial career to a premature end, I can say yes. Of course the Government accept the principle that the committee has made clear: that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny. I am happy to put my name to that proposition.

[Lord Rosser]

I thank the Minister for his responses. I am sure that he would not say that he found himself in a difficult situation, since he has had no responsibility for the Home Office’s failures to which we have referred and which were referred to in the committee’s report. I am very grateful to him for making it clear that if there are further failures by the Home Office, the responsibility rests fair and square on the shoulders of Ministers. It is just not good enough to turn up in front of a committee or to make statements that somehow it is due to an administrative failure, which by implication means that they are passing the buck on to officials. Ministers gave assurances; Ministers are responsible for seeing that those assurances are kept and, if they are not, it is only Ministers who are responsible and accountable for that. They should be prepared to accept that responsibility if they have to appear in front of the committee again, and not seek to say words which imply that somebody else within the department at a lower than ministerial level is somehow responsible.

I also thank the noble Lord, Lord Hodgson of Astley Abbots, and the noble Baroness, Lady Ludford, for their contributions to this debate and for the issues they raised, along with the questions they asked and to which the Minister has had to respond. I say in closing only that my motive in tabling this Motion, apart from raising my specific questions, is that we have some duty when we see such a report from the Secondary Legislation Scrutiny Committee to make sure that it is debated. I do not think that the committee is prone to making such critical comments and observations about a department—and, in this instance, its failure—every five minutes. I think it really would have to be pushed to feel moved to write its fourth and fifth reports in the vein that it did. I will leave it at that and thank everyone who has participated. I thank the Minister again for his responses and, since this is a take-note Motion, I take it that this Committee agrees to take note of the Motion.

Motion agreed.