Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019

Baroness Chakrabarti Excerpts

Monday 25th March 2019 Grand Committee

[Baroness Chakrabarti (Lab)]

My Lords, in all sorts of matters, particularly perhaps in matters Brexit, it is not as fashionable as we might like either to be succinct or fair to one’s opponents. So as not to exacerbate the Alice in Wonderland world described by noble Lords, I would say that the Minister is in an unenviable situation. Surely we all know that the problems are not with this draft instrument but with any possibility of exiting the European Union without a deal. It would be a disaster in all sorts of areas—trade and other aspects of co-operation—but in the context of criminal justice co-operation, we all ought to acknowledge that the idea of no deal is particularly disastrous and dangerous for people in this country and in the European Union, especially for victims of violent crime and survivors of domestic abuse.

Having said that at the outset, I invite the noble and learned Lord the Minister to agree and to do his best with particular questions about the various areas of policy and co-operation covered here. We acknowledge that it is not about the instrument. We are in an unenviable position. The clock is ticking down and we seem to be no closer to a final scheme for what criminal justice co-operation will be. The problem is that the political declaration is vague on matters of security and justice co-operation. As we have heard from noble Lords, access to Europol and European criminal records is essential, as is access to the extensive database system. Perhaps we can all agree on this. I am sure that, in due course, the Minister will do so as well and he will suggest that this instrument and its provisions are not an ideal alternative to having a proper scheme for co-operation after Brexit.

If the Minister is able to do so, I wonder if he might discuss what the total cost to the UK authorities might be from not having, for example, access to the system of formal communication in relation to compensation for victims of violent crime. The Explanatory Memorandum makes a lot of store about the total number of requests in each relevant case. Can he assist on the total amount of compensation that has resulted in the past three years in relation to this request? Thare might give more of a sense of the importance and severity of the matters we are dealing with.

In relation to European protection orders, paragraph 7.3 of the Explanatory Memorandum states,

“the UK will no longer be able to issue requests to other EU Member States and expect them to be acted upon”.

This is predominantly about domestic violence. Can the Minister confirm that this change could make life less safe for the survivors of domestic abuse after exit day? Could the Minister perhaps articulate how travel restrictions would be placed on the perpetrators of domestic abuse in such a scenario—for example, on a man who is an EU citizen with a woman victim who is a UK citizen—without an EPO? Similarly, on financial penalties, does the Minister have any idea what the potential cost would be to the UK authorities for losing access to the framework?

In all this, I am making the point that it is not really fair to impugn the instrument itself but, as there are people beyond this Room who are still advocating a no-deal Brexit, it is none the less important to try to get the Minister’s thoughts on some of these matters.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. I begin by observing that my noble friend Lord Deben has misunderstood the purpose of these regulations. They are not concerned with the transfer of data or information or with access to it; they are concerned with what the courts do with it once they have it. I will elaborate on that in a moment.

In light of the observations that have been made, particularly by the noble Lords, Lord Thomas and Lord Thomas—this is a bit like a rugby commentary featuring Joneses, but I will not go there—and the noble Baroness, Lady Chakrabarti, I shall take each of the five relevant regulations’ directives in turn, pick up each of the points that have been raised and then come back to the issue of data and how that is being addressed.

The first is the victims of crime compensation directive. Let us be clear: in the event of a no-deal exit—I am not seeking or advocating that; I am dealing with the situation that arises in that eventuality, as the noble Baroness observed—any EU citizen who is the victim of a violent crime in the UK will still be able to proceed to make an application under the UK scheme in respect of a violent criminal act in the UK. Conversely, even though we no longer have the relevant directive in place, where a UK citizen suffers such an act in a member state that has ratified the European Convention on the Compensation of Victims of Violent Crimes, which is the preceding European Council convention, they will also be able to access compensation, and there are 18 EU members that are signatories to that convention. In addition, there are some member states that are not signatories to the convention but whose criminal compensation schemes admit of applications just like the UK’s for any citizen who suffers that violent criminal conduct within their country. There are at least two which fall into that category; I believe that they are Ireland and Latvia. There are in fact a total of 20 existing EU member states where it will be possible to continue applying for compensation under these schemes.

To follow up the point from the noble Lord, Lord Thomas of Gresford, the intention is that the CICA will support victims in accessing compensation from those countries where an application can be made—in other words, it will do essentially what it does at present, which is to assist the victim in directing how and where the application should be made in the circumstances. I readily accept that that is not a complete answer to the existing scheme; it is deficient to the extent that at least seven existing EU member states will not facilitate such an application. That said, it is important to put this into context. As the noble Lord, Lord Thomas, observed, not every application has been notified to the CICA in the UK. In so far as it is notified, though, we are aware that in the past year, 2017-2018 to the end of February, there were 59 requests for assistance, 29 notified unsuccessful applications and only two notified successful applications. I readily accede that not all those who made an application notified that fact and not all those who made a successful application notified that, so the data is limited. As a consequence we do not know the sums that were awarded in these cases because there is no requirement for notification. It is a limited compass and what will be in its place is not as good as what exists at present. Nobody is pretending otherwise, but it is appropriate that we put the statute book into proper form in order that people are not confused when they come to determine what their rights are in this context.

Turning to the European protection order and the point raised by the noble Baroness, Lady Chakrabarti, it is simply not possible to operate that scheme if we leave without a deal because under the terms of the relevant provision only the court of a member state can make a request and under the scheme it can make a request only to the court of another EU member state. In the event that we receive an application before exit, we will process it because it will have been competently made by the other member state and we will be receiving it at a time when we are a member state, but after exit we cannot make such orders because they will not be accepted as competent by the EU 27 states, and we cannot expect to receive any because they cannot competently make such a request of the United Kingdom once it ceases to be a member state. To put this into context, I should emphasise that this order is very rarely used. Four EPOs have been issued by the English and Welsh courts and the Northern Ireland authorities since this provision was implemented in 2015, and only two of those were recognised by the receiving EU state over a period of four years. In the same period, six EPOs were received by the courts from other member states of which four were recognised and two were declined, so we are talking about tiny numbers in this context.

On the European supervision order, I would, with respect, seek to correct the noble Lord, Lord Thomas of Gresford. The supervision order is directed to pre-criminal trial matters such as bail. It does not apply to any post-criminal trial order of the court. The reference to supervision is perhaps a little misleading in that context. It deals essentially with a situation in which somebody is placed on bail under bail conditions and the relevant supervision order can be enforced in another EU member state with the result that a citizen of an EU member state who is subject to bail may move into another EU member state without breaching the relevant conditions of their bail order. That is essentially what it deals with. It has again been very rarely used since implementation in 2015. The number we had received at the time the regulations were laid was four since 2015. Interestingly, a further six have emerged since the regulations were laid, I think five of which have come from Cyprus. I do not know whether they all pertain to the same group, but the numbers are very small. In turn, the courts in England and Wales have issued two such supervision orders, but neither is extant. They have both expired because the relevant parties have been discharged or have gone through the criminal trial process. We do not anticipate that this will have any major impact.

The financial penalties order came into force in 2012, since which time we have received about 3,759 requests for enforcement of civil penalties, most of them from the Netherlands, and we have issued about 3,400 requests for the recovery of financial penalties, most of them to Poland.

We have one point to bear in mind. Where we issue a request for a financial penalty to be recovered, we do not get the money. It is retained by the EU member state that makes the recovery. To that extent we do not get a financial benefit, but where we do benefit is in the event that we are requested to recover a financial penalty; we can then retain it. The sums involved are relatively modest. The average fine is in the region of £300 based on figures collected in 2015. If that is applied to the number of requests we are getting, we are still talking about a sum of approximately £100,000. However, I emphasise that these estimates are approximate. As I say, it is not a case of us recovering the money that has been imposed by a UK court for reasons best known to the European authorities, I am sure; rather, the proceeds go to the jurisdiction that actually recovers the funds in the event that they do so.