Leaving the EU: Security, Law Enforcement and Criminal Justice

Robert Neill Excerpts

Wednesday 18th January 2017 Commons Chamber

[Brandon Lewis]

As the right hon. Gentleman will be aware, we are at the start of negotiations. I cannot predict where we will end up. However, I will come specifically to the European arrest warrant and its implications for us in a few moments.

Criminal networks are driving migrant smuggling; Europol estimates that more than 90% of migrants travelling to the EU used facilitators—provided, in most cases, by criminal groups with an estimated turnover of €3 billion to €6 billion in 2015 alone. We are at the beginning of a complex process to agree a new relationship with the EU. This is new territory for both sides, and it is way too early to say exactly what that relationship will look like. I am sure there will be many and varied views expressed from around the Chamber today and in the months ahead, but I am also confident that nobody will argue against the importance of fighting cross-border crime and of defending security across Europe.

[Robert Neill (Bromley and Chislehurst) (Con)]

To reinforce that point, will the Minister concede that what we are talking about is a system of European criminal justice co-operation? Much of this is about practical co-operation and information sharing and does not largely touch on the substantive criminal law of the states. Sometimes it extends beyond member states of the European Union. Does not that reinforce the importance of the point about practicality?

[Brandon Lewis]

As ever, my hon. Friend makes a really important point, and he is absolutely right. Some members of and countries involved with organisations such as Europol are not part of the European Union, highlighting that they see the importance of ensuring that we share information efficiently and proactively to fight crime. It is absolutely right that we work to protect that ability. Whatever shape our future relationship with the EU takes, I hope that we can all agree that it should not compromise the safety of people in the UK or, indeed, the rest of Europe.

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[Brandon Lewis]

My hon. Friend makes an important point in that the work we have done across Europe—we have been a leading country in working to get this information—we are also continuing to do with countries around the world to make sure that we are able to do everything we can, in every context, to keep our country and our citizens safe.

For example, we work bilaterally and through the Counter Terrorism Group to combat terrorism effectively in Europe, and that work retains our local sovereignty. It includes working with European partners on information sharing, tackling foreign fighter flows, law enforcement co-operation, tackling radicalisation, and countering the narratives of terrorist groups. That group sits outside the EU, and we will therefore continue to be a member of it. Furthermore, as my hon. Friend rightly points out, our EU co-operation is of course just part of a wider landscape of international counter-terrorism work, which includes co-operation through relationships such as those with Interpol and the “Five Eyes” countries, and bilateral work with individual countries and NATO.

[Robert Neill]

I am glad that my right hon. Friend makes that point. May I make a point in relation to the intervention by my hon. Friend the Member for Stone (Sir William Cash)? The evidence given to the Justice Committee was very clear that although there are other means of international co-operation with countries outside the EU, the current mechanisms are much more efficient, as they very often have to be conducted on a bilateral basis rather than as part of a joined-up system. It is therefore desirable, as my right hon. Friend says, that we do all we can to stay in them.

[Brandon Lewis]

My hon. Friend makes a very good point in that there are different agreements in different parts of the world with different partners around the world. It is important that we work to improve all those arrangements and get the benefits that we have seen from some of the work we have done and agreements we have secured across Europe more widely. Key partners in Europe have already assured us, as a Government, that they value our close co-operation on counter-terrorism matters as well.

We are very clear that effective co-operation with EU member states on security and policing in order to combat terrorism will continue to be a top UK priority. Looking ahead, our EU-level relationships will, of course, have to change, but our shared goal of assuring and enhancing the security of our citizens will not. It is important that we can find a way forward that works for the UK and the EU jointly, for mutual benefit. We will approach the negotiations from the perspective of what is best for the safety of all our citizens, and what is worst for those who seek to cause serious harm to innocent people and democratic values.

During negotiations, we will look to maintain the excellent co-operation that currently exists with our European partners. We fully recognise that the nature of our future relationship can be decided only in negotiations with member states and EU institutions. We are confident, however, that all citizens will be safer if we continue to work together and co-operate. We recognise the challenges involved in negotiating a new relationship, but we are committed to finding innovative solutions that enable us to continue to work together for the collective security of Europe and all the citizens of the United Kingdom.

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[Robert Neill (Bromley and Chislehurst) (Con)]

It is always a pleasure to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry). She is a distinguished, practical lawyer, and I agree with her on some of the practical issues that arise, to which I shall return in a moment.

I endorse the views of my right hon. Friend the Member for Mid Sussex (Sir Nicholas Soames) in relation to our mutual situation—we both fought to remain in the EU, but, having lost, we both accept the verdict of the people. I also endorse his comments commending the Prime Minister for her realistic, practical and determined approach to this issue and on the importance of our NATO relationships. He is much more of an expert on those than I, but I endorse what he said, although I add one thing: we must not only strengthen our NATO relationships but maintain the best possible relationships with our colleagues who happen to be members of both the EU and NATO, not least our nearest neighbour, France, the other great military power of Europe. It is a nuclear power, a significant military power and a member of the UN Security Council. I am sure the Minister, being the diligent Minister he is, will gently remind his ministerial colleagues that we have a long history with France and were actually on the same side in the second world war.

That said, let me return to the specific issue of law enforcement and criminal justice co-operation. That has concerned me during my years at the criminal Bar and is also an issue on which the Justice Committee took evidence only in the last week or so—and we shall publish our report soon.

Unlike the hon. and learned Member for Edinburgh South West, I do not expect the Minister to reveal the mechanism by which we achieve our objectives, because we are at the beginning of a process. The Prime Minister was right to set out the plan, and I expect there will be a lot more detail that we will have to think about. In my short contribution I want to flag up some of the issues that I hope the Minister and his colleagues will bear in mind when we look at the negotiations and how we put the plan into reality.

The Minister of State at the Home Office, my right hon. Friend the Member for Great Yarmouth (Brandon Lewis), started by talking about the importance of the European arrest warrant. That is recognised by the Prime Minister. She is right that we must do all that is necessary to remain within the European arrest warrant, which involves some compromises. As for the purity of any break, I personally would be prepared to make some compromises, as I would in relation to other matters, to achieve the practical objective of keeping our country safe. They are critical. As I said to the Minister of State, many of these issues are not about our domestically determined criminal law being overweened or supervened by some international system. These are matters of practical co-operation, tracking down suspects and arresting them, the exchange of information and the enforcement of court judgments to everybody’s mutual advantage.

All member states of the European Union have varying degrees of approach to their criminal justice systems. Ours is particularly different because of our common law system, of which we are immensely proud, but that does not mean—I hope people would never suspect that it does—that the systems of other European member states should automatically be regarded as inferior to ours. Some of us in this country are occasionally a bit too sniffy about the quality of the justice systems of other European member states. I have no hesitation whatever in commending the integrity of the justice systems of France, Germany, Italy and many others, as I would in respect of Scotland, Ireland or Northern Ireland, for that matter.

[David T. C. Davies]

My hon. Friend is making some good points, but would he concur, given that we are fellow members of the Council of Europe, that some of the prison systems that he and I have probably both visited simply do not come up to British standards? I would mention Greece in particular.

[Robert Neill]

I thought that that issue might be raised, and I was going to say that that does not alter the importance of criminal justice co-operation and, secondly, that where this has been relevant as a criticism of the arrest warrant in the past—in the Symeou case, for example—that is essentially history. What is not often sufficiently recognised are the very important amendments made to the European arrest warrant in 2014. We heard evidence from both the criminal lawyers society and the Criminal Bar Association, who strongly concurred that the amendments of 2014 had removed the risks that had put the unfortunate Mr Symeou in his position.

[Keith Vaz]

It is a great pleasure to serve under the hon. Gentleman’s chairmanship of the Justice Committee. The point made in the intervention by the hon. Member for Monmouth (David T. C. Davies), which is a cause of concern to me, is that sometimes countries in the EU issue their European arrest warrant for very minor offences. One example is an individual who had a warrant issued against him because he had stolen a bicycle. It is important that individual countries focus on the reasons why they take out their arrest warrants. I have always regarded it as very serious when a European arrest warrant is issued; it is not appropriate for the minor offences that some countries use it for.

[Robert Neill]

I accept that that is a significant issue, but the two amendments achieved two things. First, they removed any risk of extradition before commencement of proceedings; and, secondly, they introduced in the UK a proportionality filter. It would be better if all other countries that use the European arrest warrant had a proportionality filter, too. From the evidence we heard from Professor Wilson of the Northumbria University’s centre for evidence and criminal justice studies, it seems that even Poland, which has resisted a proportionality filter in the past, is now moving in that direction. The situation is improving there.

The fact that we have those two important safeguards is significant, and it is also important that the European arrest warrant system is a court-driven system, which is subject to judicial supervision rather than being an executive act of extradition. That is why it would be undesirable for us to lose the advantage of the European arrest warrant and have to fall back to the 1957 extradition convention, which was a purely administrative act, carried out through diplomatic channels, without the protection of court intervention or review. It was also much more cumbersome.

[Richard Arkless (Dumfries and Galloway) (SNP)]

It is indeed a privilege, as mentioned by others, to serve on the Justice Committee under the hon. Gentleman’s chairmanship; he is making a fine speech. Will he respond to some of the comments made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry)? Notwithstanding her clear desire to stay within the European arrest warrant, there will be difficulties as a result of different data-sharing regimes in the European Union and the UK. How is it possible to reconcile the two, following the UK’s leaving the EU?

[Robert Neill]

It is certainly clear from the available evidence that the Government will need to take that necessity on board. We will have adhere to European standards of data protection for other member states to be able to share the information with us, according to their law. We may also want to share information with other third-party countries, so both we and they will have to be prepared to adhere to international standards. As my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) rightly said, that might involve some form of international adjudicative process to deal with disputes between member states. I am not going to tie anyone down on how best to solve that, but there are serious issues that we will have to bear in mind from day one of our negotiations.

Equally, when we talk about involvement with some of the other agencies—we referred to ECRIS, the European criminal records information system, to Prüm and to a number of other valuable tools—we need to recognise that there is a financial cost to the development of the databases. I would certainly encourage the Government not to be afraid to continue to make a financial contribution to the development and maintenance of them. That would be a small price to pay in view of the advantage of protection for the British public. I think there is common ground on the objective of the European arrest warrant. I just wanted to raise some of the practical issues that we will have to grasp if we are to succeed in achieving our continued full access to it as a non-EU member state.

I want to refer to other matters of concern—co-operation between the courts, which involves our continued membership or association with Eurojust. There is a precedent for non-member states continuing to co-operate with Eurojust. Norway has a co-operation agreement and has liaison prosecutors based at Eurojust. If we leave the EU as it stands, we would have to move from being national college members, but we could have a Norwegian-style status. Perhaps we should be bold and try to argue that we should remain as national college members on some sort of basis if the constitution permits it. That would be preferable.

[Joanna Cherry]

I hear what the hon. Gentleman says about Norway, but is he aware that the Prime Minister, in her former role as Home Secretary, was very disparaging about the abilities of Norway and Switzerland, outside the EU bloc, because they do not have access to all the tools and have to come under the jurisdiction of the European Court of Justice, without having the same input into the law-making process?

[Robert Neill]

Prior to the referendum, neither the hon. and learned Lady, the Prime Minister nor I would have wished to be in the conundrum in which we now find ourselves. However, I accept the verdict of the British people, so we must find a practical means of achieving the objective that we want. It would be better to find something that is beyond Norway. That is why I have suggested starting as a negotiating point with the idea that we should be national college members rather than associates of Eurojust. If we are ambitious, we lose nothing from pressing for that from the beginning.

In April last year, the Prime Minister as Home Secretary referred to the whole of the European criminal record system—financial intelligence units, the prisoner transfer unit, Schengen Information System II, joint investigation teams and Prüm—in the context of seeing them as practical measures that promote effective co-operation between different European law enforcement organisations. If we are not part of them, Britain will be less safe. As Francis FitzGibbon, the chairman of the Criminal Bar Association, told the Select Committee, that would be a pretty good starting point for bringing this whole area to greater prominence, and a pretty good starting point, I would suggest to the Minister, for our negotiation objectives. Witnesses to the Justice Committee repeatedly said that this is part of a mutually reinforcing system of justice co-operation.

We may concentrate on the arrest warrant, but the information exchanges, the ability to enforce court judgments and the ability, for example, to seek a European information order to obtain evidence from abroad are all part of the same process. That is why it is critical for us to set our objectives at the highest possible level when it comes to seeking our continued engagement with these matters.

This is an important debate because it concerns an immensely important topic. Those of us who now want to move on constructively from what, according to any view, has been a bruising experience for this country will want to do so on the basis of an ambition to protect the country, while also recognising that both our judicial system and our police force are immensely highly regarded, not just in Europe but internationally. We have something to bring to the table as well. I hope that the Minister will take those points on board in a bold and ambitious negotiation, and I wish him and his colleagues well.

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[Robert Neill]

My hon. Friend makes a powerful point. Is he aware that similar evidence exists in relation to the Schengen information system? The National Crime Agency has stated:

“Loss of access to SIS II would seriously inhibit the UK’s ability to identify and arrest people who pose a threat to public safety and security”.

[James Berry]

I entirely agree with my hon. Friend. In fact, I do not think that a single senior police officer or police organisation takes a view counter to the one he has just outlined.

Beyond the police—apart from some concerns about the European arrest warrant, which I do not share—I do not detect any desire among members of the public for any rowing back on our policing and criminal justice co-operation with the EU. I do not detect any such appetite within this place either. Certainly since I have been here, the only pushback—particularly on these Benches—has been on the requirement to submit to the oversight of the European Court of Justice. I will come back to that matter shortly, but to take it out of the equation for the moment, I doubt that there will be a voice of dissent in this place relating to the panoply of policing and justice co-operations we currently enjoy. Time does not permit me to go through each and every one of them, so I shall focus on just four.

Europol exists to assist law enforcement agencies in member states to tackle cross-border crime. It focuses on gathering, analysing and disseminating information, rather than on conducting actual investigations. The UK has 12 liaison officers at Europol’s headquarters in The Hague, which I was able to visit with colleagues on the Home Affairs Committee last year, including the right hon. Member for Leicester East (Keith Vaz). It is a very impressive operation indeed. It is important to note that Europol also has representatives from non-EU countries such as Norway and the US. We had a long conversation with representatives from the US and the Department of Homeland Security, who have a significant presence there. It was not immediately clear from that conversation that they were significantly worse off for not being a member of the EU. However, they certainly do not have the automatic right of access of EU member states to the Europol information system. There is a specific provision for them to have access on a case-by-case, supervised basis.

We were also able to meet online counter-radicalisation officers from the European Cybercrime Centre, an initiative very much championed by our Prime Minister when she was Home Secretary. The Europol information system is a central database with information on suspected criminals and objects associated with crime, such as vehicles. If a vehicle is suspected of being connected to a crime in Kingston, for example, British police officers can search the EIS to find out whether there is any information on that vehicle, or people associated with it, anywhere in the EU. In 2015, the UK sent and received 37,000 alerts through Europol channels, half of which related to high-priority threats such as child sex exploitation and firearms. As crime and criminals respect state borders less and less, the role of Europol in supporting cross-border co-operation will only increase and become more vital. It must be retained, with British involvement.

I shall move on to the Prüm convention. Like the EIS, Prüm allows and facilitates member states to search each other’s databases for fingerprints, DNA profiles and vehicle registration details. The UK has not yet fully implemented Prüm, although I believe that it will do so later this year, but we ran a pilot for DNA profile exchange in 2015. As I mentioned, I heard from a senior police officer yesterday that that has allowed checks that would previously have taken hours or days to be performed in 15 minutes.

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[James Berry]

I am sure we will hear my right hon. Friend’s expertise in the defence field in a few moments. The starting point of the European arrest warrant system is that any country in it has a legal system that will give a British citizen a fair hearing, just as citizens of that country would have a fair hearing here. That is the starting assumption, and that was why the House approved our membership of the system. I accept that some people hold the view that my right hon. Friend describes—I mentioned that fact earlier—but, on balance, the majority of people in the House and in the country think that being a member of the European arrest warrant keeps us safer.

[Robert Neill]

Perhaps my hon. Friend would like to know that that was the view of the Criminal Solicitors Association, whose members largely represent defendants, and of the Criminal Bar Association. They agree that, on balance, membership of the European arrest warrant system is an advantage because it is a court-led system that involves judicial overview, unlike the classic extradition system, which is an Executive process.

[James Berry]

I thank my hon. Friend for his helpful intervention.

There are many other measures that I could mention: ECRIS; the Schengen II information system; the system for providing enforcement alerts, including for those wanted on European arrest warrants, which includes more than 70 million live alerts; and the European image archiving system, which is a database of genuine and counterfeit ID documents and travel stamps. In all those fields, I agree with the right hon. Member for Normanton, Pontefract and Castleford, that we should be aiming for full membership, or the closest possible approximation to it.

Turning to the UK’s position since the general election, the Government have put us in a good position to take forward policing and justice co-operation with the EU. First, in December 2015, we decided to opt into Prüm II. Secondly, in December 2016, we decided to opt into new regulations governing Europol, and I was pleased to sit on the European Committee that unanimously approved that decision. Thirdly, the Prime Minister set out yesterday how a global Britain will continue to co-operate with its European partners in the fight against the common threats of crime and terrorism. She made it clear that she wanted our future relationship with the EU to include practical arrangements on matters of law enforcement and the sharing of intelligence material with our EU allies. That came as no surprise because she personally led several such initiatives during her many years in the Home Office.

Clearly it is up to the European Union and others to decide whether to allow the UK to remain part of the policing and criminal justice architecture that we are debating today, but the case for the EU and EU member states to do so is clear. It is probably clearer in this area than in any other area of EU co-operation, not only because it affects the security of each citizen of every EU member state, but because the UK is at the forefront of each and every one of these criminal justice measures. For example, 40% of contributions to Europol’s shared intelligence come from the UK—we are behind only Germany—and the UK is the main contributor of intelligence in several of the most important areas. It would not be in the interests of any EU member state, or the EU as whole, to shut itself off from access to that vital intelligence in pursuit of some lofty EU principle or ideal—this is a matter of practicality. If the tables were turned and another country that contributed 40% of Europol’s intelligence—this intelligence helps British police officers to fight crime—were leaving the EU, I would be the first to call on our Government to do everything possible to maintain access to that intelligence and to preserve our co-operation with that country. Without wishing to labour the point, it would be an act of self-defeating nihilism for the EU to seek to shut the UK out of policing and criminal justice co-operation measures.

How could we co-operate outside the EU? We could either be allowed to remain a member of such measures, which would require EU legislation to be rewritten, or we could be given informal or bespoke access, which the US already has with Europol. Once any legal hurdles are overcome, the two main sticking points will be money and judicial oversight. As for money, I am clear that we should pay to play. If we are to benefit from Europol, for example, which has an office and staff in The Hague, there can be no question but that we should expect to pay. On judicial oversight, I understand that oversight of the European Court of Justice is a sticking point for many Members and for many members of the public who voted to leave, but that must be dealt with on a case-by-case basis, looking at each measure on which there is co-operation. When we enter multilateral agreements with other countries on issues such as extradition, there is often an international court that arbitrates, such as the International Criminal Court.

I do not believe that we immediately became less safe because we decided to leave the EU. The measures we are discussing are hugely beneficial to law enforcement. The police and the public want us to continue with them, and I am pleased that the Prime Minister agrees. The litmus test for me on this and all other EU co-operation is simple: if we were not currently a member of the EU, is this is something in which would we be looking to get involved because it would benefit British people? For all the measures we are debating today, the answer is a resounding yes.

There will undoubtedly be legal hurdles to overcome, but it is clear beyond peradventure that our side is willing. I hope that the EU will respond in kind and that the starting point for any negotiations will be not whether we should do it, but how we should do it. Some Members have demanded guarantees and more information, but given the consensus in this area, it falls on everyone in this House, particularly those with expertise and legal training, to contribute on the question of how we assist the Government to ensure that we maintain this vital co-operation in policing and criminal justice for the benefit of all our constituents in Britain, and of citizens in Europe as a whole.