Leaving the EU: Security, Law Enforcement and Criminal Justice

Lyn Brown Excerpts

Wednesday 18th January 2017 Commons Chamber

[Lyn Brown (West Ham) (Lab)]

The official Opposition welcome this debate. In the run-up to the referendum in June last year and the months since, we have heard much about how our decision to leave the European Union will affect Britain’s economy. We have debated what it means for our businesses, our trading relationships, our nation’s finances and, most importantly, the personal finances of individuals and households throughout our country. That is all of deep concern to me and many other Members.

Of perhaps even greater significance is the threat to our national security that could come from our leaving the European Union and, in particular, the effect that doing so will have on the ability of our police to protect our citizens. Today, as we turn our focus to those issues, the Government need to provide stronger assurances that our nation’s security will not be compromised by our decision to leave the EU. I say gently to the Minister that while his long speech was strong on analysis and strong on detail about the institutions, we did not really hear anything about how we were going to do the things that he wants us to effect.

Some hon. Members lament the fact that in the 40-plus years since we decided to join the common market, it has become far more than simply a trading arrangement. Given the nature of the threats that we face, however, it is unsurprising that European countries have found it convenient to co-operate in other areas, including the field of justice and home affairs. Quite simply, it was in our national interest to do so, because the security threats that we face are not confined to our national borders. Whether we are fighting international terrorist networks, tracking down fugitives from justice, obtaining crucial information on the activities of suspects abroad or maintaining effective border controls, it simply makes more sense to act together. Those issues are paramount to our country and to the security of our citizens. Whatever our personal view on the EU referendum, we urgently need reassurance from the Minister that our national security and our ability to combat crime within our borders will not be compromised by the decision to leave. Many hon. Members have issues that they want to raise this afternoon.

[Danny Kinahan (South Antrim) (UUP)]

Does the hon. Lady agree that for us in Northern Ireland, it is especially key that we keep our relationships with Ireland and the way in which we work together, and that we improve work on counter-terrorism? Only eight out of 110 extradition requests have been granted. There is still a great deal of work to be done, and we have to build on that.

[Lyn Brown]

The hon. Gentleman is absolutely right. There are three main issues on which the Opposition seek answers this afternoon: our ability to participate in the common arrest warrant; our future relationship with Europol; and our access to Europe-wide crime prevention databases, including the Schengen information system.

I will come to each of those things in turn, but first there is a general point to be made. As many in the House remember, our optimal relationship with the European Union in the field of security and justice was comprehensively debated during the previous Parliament. We opted out of all provisions relating to police and criminal justice so that we could have a fresh debate about which initiatives we wanted to be part of, and then opt into them again. That initiative was negotiated with European member states by the previous Labour Government and continued by the subsequent coalition. The process consisted of two years of negotiation and debate in this House, in government and in Brussels, and it culminated in Britain deciding to opt back in to 35 specific measures that we considered to be in our national interest.

Those measures included the European arrest warrant, Europol and access to the Schengen information system—the three things that I am concerned about today. I know that our Prime Minister is also concerned about them because it was she, as Home Secretary, who put it to the House on 7 April 2014 that we should opt back into the measures. It is so nice to have confidence that there will be unanimity in the Chamber this afternoon on this oft-contentious subject. However, the opt-in happened before the referendum, and now, in this post-referendum world, the Government need to tell us how they will ensure that we still have access to those measures, which we so recently decided that we needed to keep our citizens safe.

We do not have time today to rehearse the two years of debate that led to a decision to co-operate in each of the 35 areas that we decided to opt back into, so I will focus on our main concerns. There is no doubt that the European arrest warrant is a crucial tool in the fight against crime in the UK. Introduced in 2004, it provides a mechanism whereby crime suspects who have left the country—fugitives—can be surrendered back to the UK automatically by another European member state. It means that suspects who have fled can be returned in a matter of weeks or days. Crucially, it means that suspects can be returned to the UK even if the legal basis for the crime that they are suspected of committing is different from that under the law that applies in the country to which they have fled. That is because the European arrest warrant is underpinned by the principle that European Union countries agree to respect the decisions of each other’s criminal justice systems, even if they differ.

[David T. C. Davies (Monmouth) (Con)]

I think that the hon. Lady has just made the point that I wanted to raise, which is that that principle means that we have to accept that justice systems across the rest of the EU are as good as ours. Does she have confidence that that is the case?

[Lyn Brown]

I have confidence that the European arrest warrant is far more powerful than any other extradition process anywhere in the world, and we would be stupid if we let it go.

Since the European arrest warrant was introduced in 2004, the UK has used it to bring 2,500 individuals from outside the UK to face justice. Let us not forget that it was the mechanism that ensured that Hussain Osman was brought to justice after he fled to Italy after a failed suicide bombing in London in 2005. The problem that we face is that the European arrest warrant is available exclusively to EU members. We will have to overcome considerable hurdles if we are to maintain the current arrangements and we are not in the European Union. In fact, as a recent briefing from the Centre for European Reform think-tank states, if, having left the EU, the UK wanted to get a similar deal,

“it would need to convince its partners to change their constitutions. In some cases, this would trigger a referendum.”

Do we really think that countries would hold such a referendum because we have decided to leave the EU?

Some countries outside the European Union have attempted to negotiate access to the common arrest warrant system. Norway and Iceland, for example, have concluded a surrender agreement with the EU that represents an attempt to get the same benefits, although it has not yet come into force. That agreement is weaker in two ways. First, it requires the alleged offences to be the same in both countries, thus losing the flexibility that comes from the agreement of member states to respect the decisions of each other’s criminal justice systems. Secondly, it allows countries to refuse to surrender their own nationals, which would make things tricky if a national of an EU country were to commit an offence on UK soil, for example.

On top of that—as if that were not bad enough—the agreement took 15 years to negotiate, and that was for countries in both Schengen and the European economic area, but as the Prime Minister made clear yesterday, there are no plans for us to be members of either. The alternative is that we fall back on previous extradition treaties that are far more cumbersome and will, in some cases, require EU countries to change their own laws in respect of the UK.

It is hard to see how any of those options are preferable to the current arrangements. I find it particularly hard to understand how this fits with the Prime Minister’s pledge yesterday to “work together more” in response to threats to our common security. While it is not difficult for an individual who has broken the law in Britain to hop on a cheap flight to another European country, I fear that it will be very hard indeed, without the European arrest warrant, for us to get them back again. For that reason, Labour calls on the Government to ensure that the current arrangements are maintained.

I turn to our second concern. This House approved regulations confirming our opt-in to Europol only a few weeks ago, and we did that because it is vital to our national security. Europol—the European Police Office, to give it its proper title—exists to combat serious international organised crime by means of co-operation between the relevant authorities of member states, including those tasked with customs, immigration services, borders and financial policing. As we know, Europol is not able to mandate national forces to undertake investigations, but it provides information and resources that enable national investigations to take place.

In the words of the British director of Europol, Rob Wainwright, whose previous career was in UK security institutions, our decision to opt into Europol is:

“Good for Britain’s security, great for police cooperation in Europe.”

Indeed, the Minister for Policing and the Fire Service confirmed on 12 December during a debate in a European Committee that Europol provides

“a vital tool in helping UK law enforcement agencies to co-ordinate investigations involving cross-border serious and organised crime”.

He also said:

“About 40% of everything that Europol does is linked to work that is either provided or requested by the United Kingdom.”—[Official Report, European Committee B, 12 December 2016; c. 5-7.]

However, when pushed about whether we can maintain our membership of Europol, the Secretary of State for Exiting the European Union, speaking in this House last year, was able to say only that the Government will seek to:

“preserve the relationship with the European Union on security matters as best we can.”—[Official Report, 5 September 2016; Vol. 614, c. 45.]

When my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) asked him the same question about Europol yesterday, we got no more information about how that could be done.

[Joanna Cherry]

Is the hon. Lady aware that Rob Wainwright said last year that negotiating security pacts from outside the bloc of Europol, in the event of Britain leaving the EU, would be a “damage-limitation exercise”? Does she agree that what we need to hear from the Government is not a eulogy about how great Europol is—we all know that already—but an indication of how they are going to limit the damage caused by leaving the European Union and agencies such as Europol?

[Lyn Brown]

The hon. and learned Lady is absolutely right. I agree with her that this simply is not good enough.

Although Europol has arrangements for third-party access, they raise serious questions. The Government stated in a policy paper that was published last year:

“There are a number of important differences between what Europol provides to third country operational cooperation partners with which it has agreements, and EU members”.

In particular, they highlighted the inability directly to submit data and conduct searches within the Europol databases, the need to conclude a separate bilateral arrangement to connect to Europol’s secure information exchange network application, and the inability to sit on Europol’s management board, which sets the organisation’s strategy. That tells us that Mr Wainwright is highly unlikely to stay in his post. In summary, to borrow the words of David Armond, deputy director general of the National Crime Agency, any alternative arrangement to full membership would be

“sub-optimal, not as good as what we’ve currently got”.

Frankly, that does not feel comfortable to me.

Our third concern is about access to pan-European databases, which are important for the routine work of our police forces. Let me give some examples. Access to European criminal records data—the European criminal records information system—is limited exclusively to EU member states. The common European asylum system includes a fingerprint database known as Eurodac that prevents individuals from reapplying for asylum once a claim has been rejected. We currently have access to the Schengen information system, despite not being a member of Schengen, and that contains information on lost identity documents and, importantly, wanted persons.

The Minister’s permanent secretary stated in his foreword to the Home Office’s most recent annual report that strengthening data exchanges with our European allies was essential to combating terrorism. I would be grateful to the Minister of State, Department for Exiting the European Union, if he confirmed whether we will still have access to these databases outside the European Union and, if so, whether that access will come at a financial cost.

[Keith Vaz]

My hon. Friend is making an impressive and powerful speech on this issue. Some of us may not now need to speak, but I am sure that that will not stop us. At the moment, on ECRIS, if a German citizen is arrested in London, we are able to know within three minutes exactly what their previous convictions are. We will want an arrangement that is just as good if we are no longer to have our existing access.

[Lyn Brown]

My right hon. Friend is absolutely right. We are simply not getting any guarantees from our Government that that is what they will be able to provide, or that they will even negotiate for it.

There is a more general problem about accessing the data we need to combat crime and keep us safe. Even if we, outside the EU, have access to European databases, we might not be able to use them. European data protection law is clear that no information can be handed to a third country—we will be such a country—that does not adhere to EU laws on privacy. Although our Government have said that they will apply EU data protection law at least until the point of Brexit, we do not yet know if they intend to do so afterwards. However, we certainly know what happens if our data laws do not adhere to European privacy rules: the European Court of Justice will simply invalidate any data sharing agreement, as it did on the so-called safe harbour agreement between the EU and the US. What guarantees will the Government give that the information that our police and security agencies need from European Union databases will not also be turned off when we leave?

In conclusion, we have deep concerns that it will be harder for us to protect our citizens when we leave the European Union. We need the Government to reassure us that they intend to reduce or eliminate this risk through their Brexit negotiations. It is one thing to have our prosperity under threat from the complexities of maintaining access to the single market—frankly, that is bad enough—but it is quite another if our security and the very lives of our citizens are under threat because the complexities of maintaining cross-border co-operation with our police and security services were not properly considered before leaving. To quote the Centre for European Reform again, justice and home affairs

“is not like trade, which creates winners and losers: the only losers from increased co-operation in law enforcement are the criminals themselves.”

My question to the Minister is simple: what guarantees will he give that Britain’s security will not be compromised by our leaving the European Union?

[Madam Deputy Speaker (Natascha Engel)]

I now have to announce the result of the Division deferred from a previous day. On the motion relating to local government, the Ayes were 299 and the Noes were 6. Of those Members representing constituencies in England, the Ayes were 280 and the Noes were 6, so the Ayes have it.

[The Division list is published at the end of today’s debates.]