Brexit: UK-EU Security (EUC Report)

Lord Soley Excerpts

Tuesday 7th February 2017 Lords Chamber

[Lord Soley (Lab)]

My Lords, I start by commending the noble Baroness, Lady Prashar, for the quality of her chairmanship of this committee and for engaging fully with everyone. I also thank the staff of the committee, who also did an extremely good job. I want to say at the beginning that I welcome the very recent change in the language of the Government, particularly in Malta. For the first time, I heard members of the Government say rather more forcefully than they had in the past that we must have a very close, positive relationship with Europe.

My view is that the referendum has happened and there is no going back on it in the foreseeable future. Therefore, we have to make it work for both the United Kingdom and the European Union. Failure to do so will have severe consequences for everyone. The noble Lord, Lord Wasserman, who has a lot of experience of this from his work in the Home Office, knows that many of the things that will happen as a result of Brexit will not be fully understood by the British public because the information was not put before them. I understand that, but I agree with him that the outcome would not have been different had it been put before them. He pointed out that people might have thought differently had they known the implications for the security side of things, but I remind him that if politics were rational, frankly, we would not need politicians. That ought to be an exam question for anyone who is thinking of doing politics.

We now have a report that gives the Government a way forward. Security and policing is one of the top four objectives for the Government, as has already been said. In my contribution I will focus mainly on what I see as the most important part of the report. Paragraph 37 talks about the problem of linking up with the security and policing work in Europe. It ends by stating:

“This may mean trying to remain part of certain channels and structures, or finding adequate substitutes”.


For me, that is very important, and it ought to be one of the negotiating aims of the Government. For all the reasons given by the noble Lord, Lord Wasserman, the security of the people of the United Kingdom and the European Union will be at risk if the co-operative organisations and structures that we have now cease to work, and we will all be in greater danger than we would have been otherwise. That is why this is so important. It is worth saying that there are a number of ways of achieving this. I take the view that it is perfectly possible to work these matters out and come up with acceptable solutions that work. But it is not going to be easy and I rather doubt that it will be quick.

In areas where we have to trade across borders—aerospace, cars and agriculture are good examples—there must be some sort of agreement on regulations. One advantage in those areas is the recent idea of equivalence; even if you do not follow the regulations precisely, you can have equivalence. The European Union could look at Britain’s arrangements on any of these matters and decide that because they are equivalent to the EU regulations, it can co-operate—and vice versa. The important difference with security is that although we can have equivalence in certain areas, there is the problem that this is about people’s liberty, about policing mechanisms and about the power of the security services. That means that the law is involved, and so everything has to be underpinned by the rule of law. That adds an important different dimension.

In my view, the primary aim of the Government should be the creation of new mechanisms for very close co-operation. Indeed, I have said elsewhere that I think we have to have a special relationship with the European Union and that we ought to start talking about it in that way. I visited Brussels in the middle of the inquiry and it struck me how many people were sad that we were leaving, but also how many people were angry. I understand that anger. Continental Europeans have always seen this as a political project. The British people have never seen it quite like that. We have seen it as an economic project. I have made the point before that for continental Europeans this is a superstate while for the British it is a supermarket.

We are now going down the road of what the Europeans rightly call cherry picking: we have picked this and that, and said we will take part in this but not that. I am reminded of the depth of the history of British culture in relation to Europe. It is very much a reflection of Lord Palmerston’s famous statement, made in the middle of the 19th century. To paraphrase, he said that Britain had no permanent friends or enemies, only our own interests to pursue and that it was our duty to pursue them. In a way, that is why we have ended up going from being the most popular country in Europe, post 1945, to being probably the least popular. We are now seen as the bad boy of the class.

A number of the existing arrangements mean that the police and the security services can talk and act directly together. That is the message that came through from the noble Baroness, Lady Prashar, and the noble Lord, Lord Wasserman. Outside the European Union, that will not be the same. We will no longer have a seat at the top table, so we will not be discussing what the rules should be on all of these areas for policing and security. Yet, as indicated, they are vital, so we have to work out how we do that. On leaving the European Union we become a third country, which produces a position where there might be arrangements by international treaty, cross-border agreement, with individual countries or with the European Union. I do not need to spell that out in any more detail for noble Lords to realise the complexity. As I have said already, equivalence is one way forward on some of these matters, but it is not the complete answer.

I will give an example. The United Kingdom could apply to the European Union for adequacy status on data protection, because data protection affects all our privacy. It often seems a rather dry topic, but if people are worried about privacy in their own lives, in business or other areas they need to worry about data protection. The EU could then decide if data protection in the United Kingdom was of an equivalent or adequate status in relation to that practised within the European Union. If it were, we could have an agreement that the exchange of data could take place. There would be safety in doing so. But there is a caveat because, although that could work, and it is one thing that the Government ought to be looking at in negotiations, I am not a lawyer but it occurs to me that if somebody felt that it was not appropriate in their particular case, they could challenge it in law. So again I emphasise the seriousness. But other countries have come up with adequacy arrangements with the European Union, so that could work.

When I visited the European Parliament during the course of this inquiry, I had some useful discussions with Members of the European Parliament, as well was the chairman and members of the various security committees from all of the other 27 countries who were present at the meeting. One thing that we were all concerned about was Europol and the whole issue of parliamentary scrutiny of the legislation passed. The European Parliament is now in the process of setting up what is in effect a rather large—and I suspect rather too cumbersome in the long run—Select Committee process for looking at the way that policing and security is done. We need to be linked into that. We cannot be members because we will be out of the EU, but we need to be closely involved in some way.

Our contribution in Brussels is remarkable. The chairman is Claude Moraes, whom I know well. He is a British Member of the European Parliament. Sir Julian King, the EU Commissioner for the Security Union, gave evidence to our committee and is also exceptionally highly regarded. Rob Wainwright is the director of Europol. He is a British police officer, again with a high reputation in Europe. All of these people are doing exceptionally good jobs. All of them will cease to be members when we leave the European Union.

There was a recent report of an extraordinary meeting of the conference of committee chairs with Mr Verhofstadt, a former prime minister of Belgium who is now the European Parliament’s co-ordinator on Brexit. The notes of the meeting state:

“Linked to this is the question of the use of the European Arrest Warrant. UK has always been critical about the EAW. Entering an alert for arrest … is equivalent to a provisional request for extradition … It will have to be discussed whether UK will want to continue”,


with the EAW. If we do, what do we do about the oversight of the European Court of Justice, because UK officials have pointed out that the jurisdiction of the European Court of Justice is a red line and that we will not accept that court’s jurisdiction? So there is a complex area between the use of the European arrest warrant and how we resolve that problem without also putting ourselves in the situation of being outside the remit of the European Court of Justice—which I assume we will do, because it is a red line for the Government. So what other safeguards will we have? It is a complex area and that report is important.

There will be a limit to how closely we can co-operate if we do not recognise the European Court of Justice. We need to recognise that there will be some international treaties between the UK and the EU. There will have to be some structures, agreements and adequacy points, which I have already mentioned, that allow us to continue with the co-operation. In some ways we will have to rely on precedence for having access to some of these policing and security practices. Other countries have done that with bilateral agreements. The United States has a bilateral agreement on passenger name records because it regarded that as particularly important after 9/11. Norway and Iceland have an agreement on the European arrest warrant. But again, if we look at that closely, there are problems with it, so replicating it is probably not the best answer.

I will conclude where I began—by saying that the onus is now on the Government to negotiate new forms and new ways of making sure that co-operation between the EU and the UK continues. It is of such importance. It is not just a conventional thing in many people’s minds—arresting someone in Belgium or Germany or vice versa in Britain and sending them over. There is also the whole question of terrorism and, as the noble Lord, Lord Wasserman said, we cannot solve that problem on a single-nation basis; we have to have close co-operation. That means exchanging vital information that will often be of a security nature.

In those circumstances, one thing that the Government will have to look at in their negotiating procedure is the legal safeguards. What legal challenges can they expect from people caught in that system who decide that the Government of the United Kingdom or the European Union do not have the legal power to do what they are doing and then challenge it in the courts? This is where the negotiations are critical. We will not see how they pan out for a few years yet, but they are really extremely important.