European Union (Withdrawal) Bill — House of Lords, 2018-02-26
Topic: Mixed Topics
Sarah Ludford (Liberal Democrats, Centre to centre-left): My Lords, the Prime Minister’s speech in Munich 10 days ago, which was cited in the previous debate, was encouraging as far as it went. The Prime Minister spoke of wanting to participate in Europol, the Schengen Information System, the European arrest warrant and the European investigation order, which is a sort of European arrest warrant for evidence. But aspiration is not enough. Cross-border co-operation on law enforcement is premised on an assumption that all member states share similar standards of fundamental rights protection. Mutual recognition is rooted in mutual trust. I am afraid that successive British Governments have not really understood this sufficiently and have been more or less reluctant to sign up to the protective measures alongside the measures on police powers. It is really strange that the UK has had such an ambivalent relationship with EU justice and home affairs over the past 20 years because it is possible to say, without being arrogant, that our record on the rule of law and the quality of our lawyers, judges and police stand comparison with any other in Europe and should have put us at the centre of EU developments in civil as well as criminal justice. But successive Governments have insisted on opt-outs and optional rather than full-hearted participation. That has not stopped the merits and value of our weight and experience and our personnel in justice and home affairs being recognised. We have the director of Europol—I think he has been there for the best part of 10 years—Rob Wainwright, who is on the brink of retiring. Of course, the European Commissioner for Security, Sir Julian King, is British. Two former presidents of Eurojust are British. That is the body of prosecutors which ensures that cross-border investigations and prosecutions are carried out smoothly. Indeed, the noble and learned Lord, Lord Thomas of Cwmgiedd, was president of the European Network of Councils for the Judiciary—the network of judges—which supports and encourages an independent and qualified judiciary You cannot do cross-border co-operation unilaterally. It has to be a reciprocal arrangement based on legal agreements which are enforceable in respecting individual rights as well as the rights of national authorities. There are two foundations of mutual trust within the EU: first, the possibility of recourse to the European Court of Justice to ensure a level playing field in the application of EU law; and, secondly, the rights and principles in the European Charter of Fundamental Rights, the right to protection of personal data being of particular relevance in this context On the resolution of legal disagreements, in her Munich speech the Prime Minister proposed two principles: first, respect for the sovereignty of the UK’s legal order; and, secondly, respect for the remit of the European Court of Justice, at least when participating in EU agencies. I think there is a lot of head-scratching about how those two principles are going to be reconciled. I am hopeful that the Minister will be able to explain to me precisely how that is going to work. Can he also flesh out what a security treaty would look like in incorporating what the Prime Minister called a mechanism for, "independent dispute resolution … in which both sides can have the necessary confidence" How will the full exchange of data be secured under the auspices of such a treaty? About three years ago Denmark voted to leave Europol. Since then, it has negotiated very limited access to data in Europol—and it is a full member of the EU, the Schengen area, the European Court of Justice and the Charter of Fundamental Rights. What makes the Government think we will get better access to Europol than Denmark? We might well get observer status but we will have no vote on the work programme or the direction of Europol’s work We will discuss the Charter of Fundamental Rights fully later but it is highly relevant to the exchange of data so I must mention it now. The relevance of the Charter of Fundamental Rights is why the trade body of the British tech industry, techUK, has urged the retention of the charter in domestic law. It is interested mainly in the commercial exchange of data for the digital economy but the same applies to the exchange of personal data for the purposes of law enforcement. The tech sector is very well aware of the long-running problems over transatlantic data transfers after the Snowden revelations in 2013, leading to years of political wrangling and litigation, including the ECJ blocking the so-called safe harbour agreement before the privacy shield was agreed—and there had to be changes in US data protection law to achieve that Whether or not the UK seeks a formal adequacy decision in the context of our future trade and security relationship, we can be sure that there will be a wide and deep assessment of data protection in this country, not least by the European Parliament, and the possible invalidation by the ECJ of any agreement which fails fully to adhere to EU standards. It seems ill judged for the Government to prejudice that trade and security relationship with the EU by jettisoning the charter. The fact that they insisted on weakening the privacy protection for immigration data in the Data Protection Bill may also turn out to be unwise The Prime Minister wanted continued participation in the European arrest warrant and the European investigation order. The extradition agreement with Norway and Iceland took 13 years to negotiate, is still not in force three years after agreement, and does not include surrender of own nationals. How do the Government propose to do better than Norway and Iceland? The 1957 Council of Europe convention would be a step backwards in extradition practice and in any case would require not only the UK but individual European countries to change their legislation. What prospect is there of them doing that On the European arrest warrant, the Government will of course be aware that the Irish courts have refused the extradition of a person to the UK and have referred the case to the Luxembourg court because they are afraid that if they return someone to the UK and they are in detention beyond March next year, they will not get the protection of the European Charter of Fundamental Rights. So it is already affecting extradition co-operation. The European investigation order—the other measure the Prime Minister mentioned—has been implemented in UK law, as I have had cause to raise with the Government, by substituting reference to the charter with a reference to the European Convention on Human Rights, which of course is not an EU measure. That seems a rather petty thing to do and, again, does not seem very sensible if it is a flagship measure mentioned by the Prime Minister but it has not been properly implemented in UK law To conclude, can the Government tell us, given their limited acceptance of ECJ jurisdiction and their rejection of the charter, exactly what terms—and under what structures, as was just mentioned—they expect to get in a security treaty, and will they submit a draft for our enlightenment before too long? I beg to move.