European Union Referendum Bill

Baroness Ludford Excerpts

Monday 2nd November 2015 Lords Chamber

[Viscount Trenchard]

The noble Lord is completely right. As I said in at Second Reading, it is necessary that our renegotiations should include the repatriation of financial regulation, the independence of the Bank of England from the European authorities, and the independence and equivalence of our own financial regulators with those of the European ones, which should be those for the eurozone.

[Baroness Ludford (LD)]

My Lords, in intervening briefly on this group of amendments, I apologise for doing so after having been unable to speak at Second Reading or in Committee last week, because of a serious family illness. I hope that the Committee will permit me to make a brief intervention, despite that absence.

I want to say two things. One has been said more than adequately by the noble Lord, Lord Judd. This concerned the point in Amendment 21 that stresses that the report on withdrawal should cover law enforcement, security and justice. The noble Lord is right: we should listen to the police and others in front-line operational roles. This indeed happened with the exercise of opting back in to 35 measures and that is what was so persuasive. That has been said by the noble Lord, Lord Judd.

Secondly, in supporting this group of amendments, particularly Amendment 21, may I take issue with the noble Lord, Lord Stoddart? He suggested that those of us who are perhaps on the inside have a lack of confidence in the UK. I deny that charge. It is not about lacking confidence in Britain, with its overtones of almost being unpatriotic, a charge I also deny; it is about living in the real world.

May I also take issue with the noble Lord, Lord Blencathra? Earlier, we heard that somehow we know better than the US trade representative. Mike Froman, a senior and serious person, has, in the words of the Financial Times, “poured cold water” on the prospect of the UK negotiating its own trade agreement with the US or with other major trading partners, such as China. He said that the US would have little interest in doing so and that the UK could face the same tariffs as China, Brazil or India. With respect, the noble Lord, Lord Blencathra, suggested that we know better than the US what the US would want to do.

[Lord Blencathra]

I am sorry if I gave the impression that we know better. I am not suggesting that; I am suggesting that we should distinguish between political rhetoric from a member of the US Government, who wants the United Kingdom to stay in Europe for a host of other reasons, and the reality that Americans would face should Britain decide to leave.

[Baroness Ludford]

I had some contact with Mike Froman when I was vice-chair of the European Parliament’s delegation to the US. He is an extremely hard-headed and tough character. I rather doubt that he is just indulging in politics. He is talking about the real world and what is actually negotiable.

This debate on the report on our withdrawal from the European Union has strayed into the set of amendments beginning with Amendment 24, on the alternatives and our future relationship with the EU, which is what I really intended.

[Lord Forsyth of Drumlean]

Could the noble Baroness help me with her great experience in these matters and her knowledge of these trade relations? Could she explain how it is that Iceland, which the Prime Minister visited the other day, has managed to negotiate a trade agreement with China and the EU has not?

[Baroness Ludford]

I am not a trade specialist, but I fully accept that far fewer interests are involved when 28 member states are trying to negotiate with China, while with a country of 60-odd million—the UK—would have many more interests at stake than Iceland. If you listen to the Scotch whisky producers, they say that it is because of EU clout that they have access to Asian markets. They did not get this with the UK negotiating for them, but with the EU negotiating for them.

[Lord Pearson of Rannoch]

My Lords—

[Baroness Ludford]

I will finish, rather than be intervened on from every direction. May I just finish?

[Lord Pearson of Rannoch]

My Lords, as the noble Baroness, like other noble europhile Lords, is praying in aid the recent remarks from the other side of the Atlantic, may I ask her and her colleagues to remember that 15 years ago, in 2000, the International Trade Commission, which I think is the largest economic think tank in the world and advises the US Congress, came over to this country for a fortnight? It took every single department to pieces and concluded that the United Kingdom would then have been much better off had it left the European Union and joined NAFTA, and that the United States would been better off, too. Since then, the trading position between us and the United States makes that claim even stronger, while the position of the European Union has declined and will go on doing so. It sounds as though as these remarks from the United States should be left out of the arguments of those who wish to stay in the European Union.

[Baroness Ludford]

I am grateful to the noble Lord for drawing a 15 year-old report to my attention. Unfortunately, I am not familiar with the International Trade Commission or its report. If he would care to send it to me, I would be more than pleased to read it. I think my point about living in the real world has been well made. The idea of the United States wanting us to join NAFTA is new to me.

In conclusion, it is essential to have these reports on withdrawal. In anticipating the ones on alternatives or the future relationship, I think they will become points of reference. We campaigners on both sides will try to make our point, but we have to give confidence to citizens and a point of reference to check our claims. These reports are essential.

[Lord Davies of Stamford]

My Lords—

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[Baroness Ludford]

Very briefly, on the logic of the noble Lord’s argumentation it seems to me that he should have tabled an amendment asking for a report on the benefits of membership, because he is saying that those of us who want to stay in wanted to put a negative spin on withdrawal—which I do not accept, because we want a factual report. However, turning that round, those people who want to leave should have forced or tried to force a report on the benefits of staying in, because they believe that that would show up that there are not benefits.

[Lord Forsyth of Drumlean]

I would not ask for a report on the benefits of staying in, because it seems absolutely apparent that we are considerably disadvantaged by joining with an organisation which is unable to control its currency or borders, and which prevents us exercising our sovereign ability to control our borders and to ensure that we have the conditions in which enterprise can flourish. I look forward to David Cameron’s initiative in the European Union to discover whether the European Union itself realises how it is damaging member states in the Union. I cannot for the life of me imagine why the noble Baroness would want me to put down an amendment suggesting that we have a report on the benefits when so much damage is caused by the way in which the European Union is organised at present. I support my noble friend’s amendment.

EU: UK Opt-in Protocol (EUC Report)

Baroness Ludford Excerpts

Wednesday 15th July 2015 Grand Committee

[Baroness Ludford (LD)]

My Lords, it is a privilege to take part in this debate. I did not have the pleasure of serving under the noble Baroness, Lady Quin. I am a new member of the Justice Sub-Committee under the chairmanship of the noble Baroness, Lady Kennedy of The Shaws, and I look forward very much to continuing to work on that committee. I spent 15 years in the European Parliament on the relevant committee dealing with justice and home affairs issues. In the five years between the Lisbon treaty coming into force and my stepping down, involuntarily, from the European Parliament, I became very familiar with the exercise of the opt-in under the protocol, and indeed with the whole exercise of the block opt-out, which we will no doubt discuss in the next debate.

As I listened to the noble Lord, Lord Richard, in particular, I could not help trying to suppress a giggle as I thought that this would make a very good satirical sketch. However, the serious point is that the Government are creating a great deal of confusion and legal uncertainty, first, for this House and the other place over the correct parliamentary procedures that should apply to this area. The scenario that we seem to have is that the Government decide after the three-month window, “Oops, we’ve discovered some microscopic JHA element very late in the day—too late to let you guys know that the opt-in enhanced scrutiny procedure applies”. We had a letter dated 3 June 2014 from the Justice Secretary and Home Secretary saying breezily that,

“there may be occasions where the Government fails to recognise JHA content in an EU proposal at the outset. We are endeavouring to keep these occasions to a minimum by raising the profile of JHA content in otherwise non-JHA dossiers across Whitehall”.

There are two possible reactions to that. One is that it cannot be very significant if it is not easily spotted, so why are the Government bothering about it? The second is: get your act together a bit earlier and check what is actually in the proposal.

The second, and perhaps more important, area where confusion and legal uncertainty will be created is with the EU institutions, with the other 27 Governments and with our international partners. That is brought out very well in paragraph 91 of the report, which says that the uncertainty about when and whether Protocol 21 applies is,

“particularly problematic in the context of international agreements, as it would mean that third countries might be unable to assess, when they conclude an agreement with the European Union, to what extent the Union assumes liability with respect to the United Kingdom. This will ultimately affect the correct implementation of the pacta sunt servanda principle, a cornerstone of international law”.

So we have the situation where the Government say, “We think there is JHA content but we didn’t manage to secure a Title V legal base. None the less, we don’t regard the UK as bound by the JHA element”. To say that this is “not an ideal outcome”, as the Government did in a letter of 3 April 2014, is an understatement of the highest order, but of course they assert that the situation did not give rise to legal uncertainty—we just put a statement in the Council minutes and everything is hunky-dory.

It seems to me that, to use a popular phrase or saying, this is no way to run a whelk-stall. There are serious implications for the rule of law, for the uniformity of the EU legal order and for the confidence that our partners, both European and international, can have in our dependability. I cannot see any possible advantage for a country that this year has celebrated 800 years of Magna Carta and the rule of law, which has one of the most admired legal systems in the world and which surely trades on the rule of law probably as much as any other country in the world—indeed, it relies on the rule of law and on everyone else meeting it.

Perhaps I am being rather party political, but the idea that there is a conspiracy against us seems to sum up everything that is wrong with a Conservative-dominated or Conservative-only Government’s attitude to the European Union—“They are out to get us”. Of course it is fair enough to be vigilant and ensure the correct application of the treaties. That in itself is an application of the rule of law. There may be cases where the Commission tries to push the envelope, more out of a sense of, “Well, the Commission would, wouldn’t it?”, because that is the institutional way of trying to ensure that the EU competence is at its maximum, but as the noble Lord, Lord Richard, said, the way to push back against that is to use political and legal arguments with the Council and the Parliament and eventually, if necessary, with the court. Various examples of this have been cited, such as the PIF directive and the road traffic offences directive, where both the Council and the Parliament were convinced that, because of the criminal law element, a Title V legal basis was needed.

Indeed, a current example can be found in the proposed arrangements for Greece, where the Commission is apparently trying to use funds from the European financial stability mechanism, on which I am far from an expert, as bridging finance. That would bring in the UK. The Chancellor may well be right to say, “No, it was agreed in 2010 or 2012 that the UK would not be outvoted in the use of those funds”. In certain circumstances it is perfectly right to use political and legal arguments to make sure that the UK’s legal rights are protected.

Secondly, there seems be an attitude that we find reasons to stay out of projects and be isolated, instead of finding reasons, within the proper framework, to contribute and be seen as a source of positive energy rather than always adopting a negative attitude.

Thirdly, there seems to be so much nitpicking on this matter—arguing for the sake of it. I cite the arguments about the phrase “pursuant to” as a classic example of this. The committee brought this out very well on the money laundering directive. You really could not make it up, but the Government were,

“considering challenging the legal basis of a measure it strongly supports solely to preserve its position on the application of Title V”.

That is the definition of shooting yourself in the foot.

Fourthly, this is the complete opposite of winning friends and influencing and shaping EU policies. I feel strongly that justice, like security and law enforcement, is an area where the UK has a big contribution to make. While respecting all our legal rights, it does us no credit whatever to act in this capricious way.

I wish that the last but one Government, the Labour Government, had never negotiated the opt-in protocol in 2007. I personally believe that we could have relied on our political heft and the emergency brake mechanism, but we are where we are, and since we have to operate it, let us at least work in a spirit of sincere co-operation—not subjugation to Brussels, but as a reliable and dependable member state.

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[Baroness Ludford]

I apologise for interrupting, but I want to make it clear that I was expressing a personal opinion.

[Lord Faulks]

I am grateful for that clarification—a difference between the view expressed by the noble Baroness, Lady Ludford, and that expressed on the part of the Labour Party by the noble Lord, Lord Tunnicliffe.

The United Kingdom’s and Ireland’s justice and home affairs opt-in has been in existence for civil justice, asylum and immigration measures since 1997. It was extended to policing and criminal matters with the Lisbon treaty, which came into force in 2009. The intention was to allow the United Kingdom to protect its specific interests, such as the common law legal system and border controls, while retaining the ability to take part in EU justice and home affairs measures where that was in the national interest.

The noble Baroness, Lady Quin, asked whether the JHA opt-in has proved an effective safeguard. I note that her committee expressed no view as to its desirability—expressly so—but she posed that question and asked whether it was an important or even an essential safeguard. I can tell the Committee that it has been used on numerous occasions to protect the United Kingdom from being required to participate in measures which might adversely affect our border controls or our fundamental legal principles. However, the debate with which we are concerned is essentially about the scope rather than the utility of Protocol 21.

The areas covered by Title V of Part Three of the treaty include some of the most sensitive for us as a nation: immigration and border controls, policing and criminal law. The United Kingdom also retains an ability to opt out of measures that build on the Schengen acquis. The UK takes part in police co-operation and judicial co-operation aspects of Schengen but does not participate in any aspects of the acquis relating to border controls. The Government have not applied to join the Schengen provisions on visas and border controls and have no intention of doing so. Any such move by a future Government will require a referendum, thanks to the 2011 Act. I know that that measure was opposed during its progress through this House, but I now understand that it is part of Labour Party policy that there should be a referendum in those circumstances. I shall not go into more detail on the Schengen opt-out, as that has not been the focus of today’s debate.

Protocol 21 was included in the treaties to make sure that any new proposal that was presented “pursuant to” Title V would not bind the United Kingdom unless it chose to be so bound. However, it is the Government’s view that the drafting of the treaty has created a lack of agreement about when the United Kingdom is able to exercise these rights—whether it is necessary for there to be a Title V legal base cited on the face of a proposal or whether it is where the EU’s competence to act flows from Title V, regardless of the legal base cited.

The noble Lord, Lord Richard, rightly focused on “pursuant to” and what he said was a pretty unambiguous interpretation of those words. Of course, the treaty could have said “under” rather than “pursuant to”. As he and the Committee will know, in the government lawyers’ view, “pursuant to” is capable of interpretation rather more broadly than many, or even most, of the academic lawyers who were called before the committee said.

I recognise that the approach of the previous Government—I know that the noble Baroness, Lady Ludford, distanced herself from the previous Government, although it was a coalition Government—is not shared by others, and that it created some challenges. But it is important to recognise that we do not have a definitive legal view on which interpretation is correct. While I accept that the European Court of Justice has taken some decisions on what is or is not JHA content, it has not set out definitively whether the opt-in applies in the absence of a legal base. Unless and until it does, the Government and others must work according to their interpretation of the treaty. I respectfully suggest that describing the Government’s approach as capricious is a little harsh.

The report on which today’s debate has centred helpfully sets out some of the issues flowing from this lack of agreement. These can be very complex and challenging, and the Government must decide on the basis of the evidence before them—

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[Lord Faulks]

I was going to do that very thing.

“Nevertheless, this does not, in our view, amount to a deliberate undermining of the safeguards in the opt-in Protocol. We note that for internal EU measures on JHA policy, the opt-in Protocol is a very effective safeguard for the UK”.

I note that in the course of the debate there has been a very firm disavowal that there was any deliberate intention by the Commission to, as it were, get round the Title V question, but there is an acknowledgement that it may not always be easy to choose the correct title.

The most recent annual report on the application of the JHA opt-in and the Schengen opt-out, which was published in February 2015, shows that the previous Government took 33 decisions under the two protocols during the period between December 2013 and the end of November 2014. Thirty-one of them were taken under the JHA opt-in. Of those 31 decisions, 18 applied to proposals which did not cite a Title V JHA legal base. They included a directive on customs infringements and sanctions, a decision establishing a European platform to enhance co-operation in the prevention and deterrence of undeclared work and several third-country agreements which created legal obligations in the JHA field.

These are all examples of legislation with a JHA impact on the UK that did not cite a Title V legal base. If unsuccessful in changing the legal base, these are the types of cases where a change of approach might mean that the UK cannot exercise its right not to be bound.

The Government are committed to considering carefully any changes to their approach to the opt-in to ensure that we can lawfully exercise the UK’s right under the treaty to protect our national interests by retaining control of our policing, justice and immigration systems. The committee’s detailed report has given the Government a great deal to consider. We do not believe it is in anyone’s interest to rush the process of responding to it, although of course I take on board the criticism that has been made of the delays.

The Government have sought to ensure that the committee and Parliament are kept updated and sighted on developments in individual cases and the policy as a whole. As was acknowledged in the debate, the Justice Secretary and the Home Secretary wrote recently to the committee to let it know that this subject is still under consideration and that the Government would provide a response to the committee shortly. That raises the question of what “shortly” means. I am afraid that the answer is that it will not be until after the Recess. I know that there has been regret about that, but it is important that the content of this detailed report, and indeed of the debate, are fully taken on board by the new Government.

The noble Baroness asked about one particular issue which also forms part of the conclusions—whether we should be thinking of an inter-institutional agreement. I think the noble Lord, Lord Dykes, asked questions about that in the course of the evidence. It is something that will certainly be considered. When the Government have concluded our consideration of the policy as a whole we will take forward such engagement as is appropriate.

The issues relating to the protocol are complex and technical, and go, as I am sure the Committee will accept, to issues of sovereignty in the very sensitive areas that JHA co-operation deals with—policing, criminal and civil law, and immigration and asylum. As the noble Lord, Lord Tunnicliffe, said, the JHA opt-in is extremely important to us.

We note what has been suggested about the litigation strategy. That is something that will be taken very carefully into account.

The Government are concerned, of course, to reflect the protection that the opt-in gives the United Kingdom on these important areas. We will consider carefully our approach to that. The process is not yet complete and we believe, as I have indicated, that we should take time to get it right.

The debate as to the proper approach and whether it should vary from that taken by the coalition Government will be influenced very much by the careful consideration by the committee and the evidence that it called for, which is well summarised by the report. I am grateful for all the contributions to this debate.

[Baroness Ludford]

Before the Minister sits down, I want to clarify that, although he said that I distanced myself from the previous Government, I did not. I distanced myself only from the attitude exemplified in the report. I am, in fact, very proud of the heavy lifting done, in particular, by the former deputy Prime Minister which ensured that the UK stayed in the 35 policing and criminal justice measures. It is no secret that there was disagreement between the coalition partners on these matters. While I am at it, let me say that I was expressing a personal view on Protocol 21, but that does not, of course, extend to the Schengen protocol, which governs border issues.

[Lord Faulks]

I am not going to go into the detail of who was or was not in favour of particular matters that were opted into or opted out of. The noble Baroness referred in the course of her speech to the rule of law, Magna Carta and “pacta sunt servanda”. I assure her that this Government take the rule of law and the desirability of honouring agreements extremely seriously. The commitment of this Government to those remains extremely profound.

Human Rights and Civil Liberties

Baroness Ludford Excerpts

Thursday 2nd July 2015 Lords Chamber

[Baroness Ludford (LD)]

My Lords, it is a great pleasure to follow noble and learned colleagues in this debate and I have appreciated all the contributions. I am surprised to realise that I am the only woman contributing to this debate, which seems a bit odd particularly in a debate on human rights and civil liberties.

I have found it disorientating and disconcerting to observe just how un-Conservative is the attitude behind demands to repeal the Human Rights Act, to defy the Strasbourg court or even to pull out of the convention. My noble friend Lord Lester referred to this attitude as one of zealotry; I am coming to regard it as a sort of “Syriza Tory” attitude. It is a revolutionary spirit that one does not associate with the Conservatives—the clue is in the name. We have always thought that we could rely on the Conservatives to be rather resistant to extreme change.

As I travelled in on the Tube today, I saw a poster advertising a book on Churchill by the aspirant Prime Minister, Boris Johnson. It is called The Churchill Factor and is apparently in the top 10 list in the Sunday Times. This is the same Boris Johnson who, like Syriza, wants to have two referenda, with the public being told to vote no in the first one in order, apparently, to get more leverage in negotiations with the EU before a second. Well, it does not work for Syriza and I do not think that it will work for Boris Johnson.

I shall not repeat what the noble Lord, Lord Lexden, said about the Conservative role in the writing of the European Convention, but there is also a strong history of Conservative support for incorporation of the convention into British law. I am reminded that in 1976 the Society of Conservative Lawyers recommended that,

“the ECHR should be given statutory force as overriding domestic law”.

There are other examples; I am sure that my noble friend Lord Lester is very familiar with them. So to call the Human Rights Act “Labour’s Human Rights Act”—I am sure that Labour in some ways wants to take credit for it—is simply not accurate.

The Prime Minister has given laudable support to the UK’s role in upholding human rights internationally. The Foreign and Commonwealth Office is championing effort to combat sexual violence and I warmly welcome the role that the Foreign Secretary William Hague had in that; it has been taken up now by our colleague, the noble Baroness, Lady Anelay. So why do we not want to take a lead in Europe on upholding human rights? In the European Union context, we are not in the euro nor are we part of the Schengen agreement, so it has always seemed to me—I spent 15 years in the European Parliament and was on the justice and civil liberties committee with the noble Lord, Lord Cashman—absolutely appropriate that the UK should play a leading role on justice and rule of law issues. I should perhaps express a note of regret that the UK has so far declined to opt in to the EU directive on access to law, which has nothing to do with legal aid and does no more than express what we already do in the UK. We are missing opportunities to put into practice our strong record.

My noble friend Lord Lester drew attention to the incoherence that we are hearing from Conservative Ministers, from the Prime Minister down, about whether their intention is to leave the convention. I join my noble friend in saying that I would welcome clarification on whether that is the aim. Certainly, the former Justice Secretary, Chris Grayling, has said that,

“it is time to examine how to curtail the involvement of the European Court of Human Rights in UK domestic matters”.

Many have commented that the only effective way to do that is by denouncing or withdrawing from the convention. That would have repercussions for our role in the European Union—maybe that is the intention—because Article 6 of the Treaty on European Union makes the declaratory statement:

“Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.

So it is clear that you cannot be a member of the European Union if you are not a party to the European convention.

We understand the wish in the Conservative manifesto for our Supreme Court to be the ultimate arbiter of what the convention means in this country but, as others have said, it is already. Except for final judgments directly applying to this country which we are bound to implement under international law through Article 46 of the convention, our courts only have to take account of Strasbourg judgments. A fruitful dialogue has developed. There may have been a bumpy period but now there is a creative partnership between our Supreme Court and the Strasbourg court.

It was not Parliament’s intention in the Human Rights Act for domestic courts to be banned by the convention. However, I understand that during the passage of the Bill a Conservative Peer, the late Lord Kingsland, tabled an amendment to make convention case law binding on British courts—another example of a Conservative input which is thoroughly at odds with what we are hearing these days. The court cannot enforce a change in the law in the UK and Parliament remains sovereign. I have heard my noble friend Lord Lester say in the past that the Human Rights Act is a brilliant balancing act of the tension between the different branches of government. It was a wonderful solution to the dilemmas of how to right it.

It seems that the ultimate wish of these revolutionaries, these “Syriza” Tories, is to throw off external supervision of the Executive on how rights are observed in the UK—whether that is external to government, meaning the courts, or external to the UK, meaning Strasbourg—so that the Executive are able to pick and choose which aspects and beneficiaries should count as worthy of protection. That, of course, is completely against the spirit of universal human rights protection.

It would be fatal to our international reputation, to our role in the EU, the wider Europe and the Council of Europe, and to our moral authority to withdraw from the convention. However, that has to be the logic of what is proposed by the Conservatives. Frankly, I do not want to be on the same level as Belarus. It is not worthy of the Conservative Party. I am upset and angry that this short-sighted, cynical and irresponsible party policy could help to see the end of our United Kingdom as well as the end of our centuries of leadership in Europe and internationally. I hope the Minister can assure us that that is not going to happen.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Baroness Ludford Excerpts

Wednesday 10th June 2015 Lords Chamber

[Lord Faulks]

I think that the noble Baroness is referring to universal credit. The point about social welfare reforms I have already answered. Of course the Government are aware of all the potential difficulties that may confront individuals with cuts in either welfare provisions or access to legal aid, which was the subject of the Question. We will be having a careful look at these as they happen, but there must be a systematic review, and that is our intention.

[Baroness Ludford (LD)]

My Lords, will the Government act to ensure that all company directors are obliged to have legal expenses insurance so that they do not need to have recourse to legal aid if they are prosecuted, for instance, for fraud?

Data Protection: Legislation

Baroness Ludford Excerpts

Wednesday 11th March 2015 Lords Chamber

Asked by

[Baroness Ludford]

To ask Her Majesty’s Government what is their assessment of the case for updating domestic data protection legislation in the light of the reported comments by the Information Commissioner that European Union law requiring notification of data breaches is three years away.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the Government do not have any plans to update domestic data protection legislation in respect of data breach notification in advance of agreement and implementation of the proposed EU regulation. The Government take the protection of personal data very seriously and believe that a strong system of breach notification will be an important element of a revised EU data protection framework, but that the changes should be made only once the package has been agreed in full.

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[Baroness Ludford (LD)]

I thank my noble friend for that Answer. However, should the Government not act with greater urgency to incentivise organisations, from which we have seen a series of major scandals of lost data—whether through lost discs or laptops, or hacking—such as from HMRC, Sony, or health organisations? Would it not be salutary for them to have to report major breaches to the regulator and to customers, who might suffer fraud or identity theft? We cannot wait possibly three years until we get EU law. We need to prioritise this so that we encourage companies to get their act together on security.

[Lord Faulks]

In fact, companies, conscious of their reputation, do—and quite rightly, should—report any breach of security, as indeed Sony did. That would be good practice. The proposed regulation would provide an obligation to notify the breach no later than 72 hours after it occurs to the ICO or equivalent in the relevant country or the subject, but only where there has been a serious breach. I entirely accept the noble Baroness’s concern, but these things must be approached as a whole, which is what the Government intend to do.

Criminal Justice and Courts Bill

Baroness Ludford Excerpts

Tuesday 9th December 2014 Lords Chamber

[Baroness Williams of Crosby (LD)]

My Lords, I congratulate the noble Lord, Lord Elton, on what he has said and the courage that he has shown. There are just two other questions that I should like to ask the Minister. I was once upon a time, and for some years, a Prisons Minister.

The first question rests on the fact—noble Lords can check this—that young women are most likely to engage in serious self-harm between the ages of 16 and 20. Self-harm is much more common among women prisoners than among male prisoners; it is four times as high—so disproportionate is this attempt to raise sympathy and get attention. Is the Minister aware of these quite striking figures for the very high level of self-harm among young women, some of it serious self-harm, in the very age group that we are considering sending to secure colleges? What steps will be taken to ensure that any girl sent there has no previous record of self-harm?

My second question is quite different. We have all listened closely to the noble Lord, Lord Ramsbotham, and we respect his extraordinary integrity in this House on issue after issue. Is the Ministry of Justice determined effectively to rule Parliament out of a system of consultation, advice and help, which I believe that most of us in this House are crying out for? We have seen an astonishing list of dismissals of Parliament in the course of proceedings on this Bill. I find it very unfortunate, and I am not sure that it is what the Minister intended, but it is certainly the net effect.

Will there be any consultation with the House about who will be the author of this report? In the light of the Home Office committee on sexual abuse, one can see what an intensely controversial question that will be. Will there be any willingness to listen to the House on consultation after the plans have been put forward for submission to the ministry? Finally, will the Minister consider whether the response given by the Commons to our amendments—namely, “it is not appropriate”—is an appropriate argument or even an appropriate answer to the many issues raised by the deep concern of many of us, of all parties, in this House?

[Baroness Ludford (LD)]

My Lords, will the Minister briefly explain precisely why the Government feel unable to take the further step, which seems very reasonable to a lot of noble Lords who have spoken, of allowing parliamentary approval of that next step—for younger boys and girls to go into secure colleges? There is some bemusement over why the Government could not take that further step, as it seems unreasonable to withhold it. It would certainly help me in my decision in voting to understand the reasons why the Government feel unable to agree to that procedural step.

[Baroness Afshar (CB)]

My Lords, is the Minister aware that teenagers and pre-teenagers are the most racist groups, particularly those who are disturbed? Putting young, vulnerable minorities in the context of intense racism creates future terrorists. Has the Minister considered the cost to this nation of creating more enemies within its own people?

Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Baroness Ludford Excerpts

Monday 17th November 2014 Lords Chamber

The arrest warrant is working extremely well. You do not, if you are sensible in life, throw over and destroy a mechanism—particularly if it is a complicated mechanism that depends on the co-operation of 28 other nation states—unless there are very sound reasons for doing so in substance. Not a single sound reason for doing so in substance has come to my attention either in this debate or in the debates in the House of Commons which I tried to follow last week. This House should support the Government on the substance of these issues. I pay tribute to the way that they handled their dealings with the European Union on this matter in substance, while berating them over, and regretting very profoundly, the way that they think they can treat Parliament. They must not be allowed to get away with that; they must remember that. They must never try on again the tactics that they used either in the House of Commons last week or those that they have used—as the noble Lord, Lord Boswell, set out—in dealing with this matter in the House of Lords. It is quite a disgraceful episode and it should be carved on the record of this Government that they actually descended—quite unnecessarily, quite absurdly—to such very disgraceful behaviour.

[Baroness Ludford (LD)]

My Lords, on behalf of these Benches, I strongly welcome the prospect of finalising renewed participation in the 35 measures, even if the procedures—as outlined by the noble Lord, Lord Boswell—have been far from ideal. It is, as other noble Lords have said, axiomatic that cross-border co-operation against major crime and terrorism is essential for the security of the UK and the safety of its people. Just this evening, the London Evening Standard headline is: “Met war on 200 cyber crime gangs”. You do not really need to read the rest to know that their operations are extending across the United States, Russia and the rest of Europe.

I am proud of the Liberal Democrats’ role in this coalition. As my noble friend Lord Stoneham said in the debate on 17 July:

“I hate to think what would have happened if the disciplines and the support of the coalition had not been in place”.—[Official Report, 17/7/14; col. 753.]

However, perhaps we would not have chosen to start from here. I say to the noble Lord, Lord Davies of Stamford, that the opportunity of the opt-out—in the words of the EU Committee, its origins are obscure—was essentially drawn up on the back of an envelope by the previous Prime Minister, Gordon Brown, on the margins of the intergovernmental conference in Lisbon seven years ago, presumably to avoid a referendum. The former Home Secretary Charles Clarke has said that he regretted that it had been negotiated, so perhaps there has to be some humility on the Benches opposite about why we are in what the noble Lord, Lord Hannay, has referred to as,

“the infernal machinery of Protocol 36”.—[Official Report, 17/7/14; col. 761.]

There were strong arguments that measures that were old or defunct could have been allowed to wither on the vine. The idea that the European Commission was going to concern itself with pursuing infringement proceedings for some ancient joint action from the 1990s was fanciful; it will have an enormous amount on its hands just making sure that 28 member states properly implement the most important measures, including the European arrest warrant.

It is unfortunate that this decision is preceding rather than following the results of the balance of competences review on policing and criminal justice, because that review could have enlightened the decision-making on this exercise, but I agree with the noble Lord, Lord Davies of Stamford, that it needs to be a pragmatic, not an ideological, exercise.

UK leadership on justice and security is very strong and these Benches believe that it must continue. We have had two British directors-general in the European Commission dealing with these matters; as has already been noted by the noble Lord, Lord Bates, the current director of Europol, Rob Wainwright, is British; we have had two British presidents of Eurojust; the present Lord Chief Justice, the noble and learned Lord, Lord Thomas, was—as Sir John Thomas—chairman of the European Networks of Councils for the Judiciary in 2008 to 2010; we had the European Police College here, although it is no longer; and we have had judges and advocates-general in the Court of Justice.

Given that we are so strong, with a strong reputation for the credibility of our police—notwithstanding a few recent problems—and given the depth of reputation of our judges and our upholding of the rule of law, we should lead in this area of justice and policing. Our not doing so is having an unfortunate effect on negotiations in Brussels on the measures that we are trying to opt in to. That is perhaps not so much the case in the Council of Ministers but, from my recent experience up till last May in the European Parliament, I know that it is difficult to persuade MEPs to make changes, as they should, to accommodate the common law if they are not sure whether the UK will participate. Some of those changes are ones that they are prepared to make, but they would not be necessary if we were not around. It is necessary for the European Commission to do some spring-cleaning of the list of old measures and it is a pity that it did not do that before this exercise had to be undertaken.

I understand the frustrations expressed by the noble Lord, Lord Boswell, and strongly thank him and his colleagues, the chairmen and the previous chairmen of Sub-Committees E and F.

I can count only 10 measures in the Explanatory Note to the regulations, but 11 are cited in the Explanatory Memorandum. I think that the missing one is the in absentia measure—which seems ironically apt—because I suppose that it is incorporated in other legal measures.

It is not appropriate to fear the jurisdiction of the European Court of Justice. There is no evidence of judicial activism in this area. In fact, the court has to be very cautious, including in the case of Radu, about a European arrest warrant, when there were great hopes two years ago that the court would rule on a proportionality test at EU level. Unfortunately it shied away and decided on a technical basis. However, that in itself demonstrates that the court is being quite cautious on criminal justice. The Government have said on record that they have no objection in principle to the jurisdiction of the CJEU and, of course, we welcome it in other areas such as the single market.

I agree with the noble Lord, Lord Lamont, that the preference should be to reform the EAW at EU level. I was grateful to be able to give evidence recently to the Extradition Law Committee, led by my noble friend Lord Inglewood, which very speedily got out its extremely useful interim report. I agree with the reforms that the Government made in August, although we have not fully seen how they are going to pan out. It would be preferable to have a proportionality-checking issuing state, and to have a broader human rights refusal test than the one we have incorporated in UK law, which the courts have regarded as a high threshold.

There are other flanking measures we need to do the procedural rights. The European investigation order, when it comes into place, will take some of the weight off the European arrest warrant, which should be a last not a first resort—certainly when things such as video interviewing or temporary transfers can be done instead of reaching for it. We need much more to be done at EU level to stop unnecessary pre-trial detention.

It would have been absurd if the Government had not implemented the European supervision order, which, although not sufficient to ensure that people will stay in their home country on bail, is a necessary step to ensure that that would happen. I am fully conscious both as of a patron of Fair Trials International—which I should perhaps declare in this debate—and as a then constituency MEP for Andrew Symeou, just how appalling an experience he and his whole family had a few years ago. He conducted himself with huge dignity through that.

I finish by saying that other noble Lords have mentioned some omissions that would be nice to see, perhaps principally in the European probation order. I hope the Government will be able to give that real consideration in the future, and consider opting in. The UK Government were one of the instigators of the Prüm decisions on the exchange of biometric information, DNA and fingerprints, because we are putting much more into the pool than we are getting back. Therefore, that would be a good one to pursue. Regarding the framework decision on incitement to racial hatred, we lead in Europe on these measures. It is sad that we are not opting into that. There are also one or two others that I have not got time to mention.

There are also some current measures, not part of the mass opt-out but part of the case-by-case decision on whether to opt in, that I hope the Government consider further. One is the internal security fund which, in its previous incarnations, has given considerable funding to UK police and NGOs for investigative operations, for instance Operation Golf, a Metropolitan Police investigation into a child trafficking ring, and other projects. The second is the directive on the right to a lawyer. The Government have rightly pointed out, in their opt in to the framework decision on child pornography, that Articles 72 and 276 in the EU treaty put the maintenance of law and order and safeguarding national security outside EU law and court jurisdiction. That means, for instance, that if there was real suspected criminality, you could intervene on legal, professional privilege, but not in an illegitimate way. I ask the Government to have another serious look at that measure, because we set the gold standard in Europe on access to lawyers—this is not about legal aid but on the right to have a lawyer present.

These are my last words. We do not want to become, in the words of Professor Steve Peers,

“a kind of Brazil of Europe, without the nicer weather. A place that you”—

that is, criminals—

“would flee to or move assets to”.

Britain should not become a safe haven for criminals, and I strongly welcome opting in to the 35 measures.