Brexit: Proposed UK–EU Security Treaty (European Union Committee Report)

Lord Anderson of Swansea Excerpts

Wednesday 16th January 2019 Lords Chamber

[Lord Anderson of Swansea (Lab)]

My Lords, there is a spectre haunting this debate: yesterday’s vote in the House of Commons, which makes us see the future even more darkly than was the case when the report was drafted by the committee. In the heady days of the referendum campaign, Brexiteers would talk on their platforms and in the media about decoupling from the EU being easy and not a serious problem. Boris Johnson spoke triumphantly of an independence day, when the UK would no longer be a vassal state. With one bound, we would be free, on our own again, our borders, our finance and our laws no longer subject to the judgments of foreign judges. Indeed, the removal of the jurisdiction of the court of justice was a key red line. It seems odd that No. 10 is apparently briefing today that that red line will continue, notwithstanding yesterday’s vote.

We have certainly narrowed our options. That is one reason we owe so much to the noble Lord, Lord Jay, and his committee. He has given us a great dose of realism—we cannot expect the benefits but avoid the laws and regulations. He has also shown us very clearly the complexity of disengagement from our European alliances and those conventions built up over the past three or four decades, including access to databases, a point very well made by the noble Lord, Lord Kirkhope.

It is clear that we have made some movement, and I welcome the fact that, at least during the proposed transition period, we can continue to participate in key agencies, but of course not in their governance, which must logically mean, over time, the erosion of our influence on policy and direction. One example of that is the European arrest warrant, which has been of enormous benefit to us, as we have seen in a number of key terrorist cases and cases of abducted children, when we can quickly get the malefactors back to the UK—an enormous improvement in speed and finance on the previous Council of Europe convention. The Government’s position may mean, however, that we will have to fall back on that rather inadequate convention.

There is a further problem relating to Article 168. The noble Lord, Lord Jay, said that he had written to the Government but answer, as yet, there is none. Problems will arise, and not just in relation to Germany. It would be interesting to know from the Government which other countries may have similar domestic problems. The Government repeat the mantra that this would not involve giving the Court of Justice of the European Union jurisdiction over the UK. But what else can using those agencies mean? This is surely just playing with words.

The same is true in respect of Europol. Colleagues have already quoted its former director, Rob Wainwright. I think it was my noble friend Lady Massey who said that in an ideal world there would be no change to the UK’s current arrangements and that any change would be second best. We are indeed involved in a process of damage limitation. Rob Wainwright praised the contribution of the UK as a lead member in key multinational operations and mentioned that there is no precedent for a third country having suitable arrangements on the lines that we seek. I will not mention the security treaty—the title of the report—because that has almost certainly been overtaken by events.

Finally, I turn to the European Court of Human Rights, mentioned in paragraph 158. Surely the Government need to explain urgently how fundamental rights will be protected after Brexit. They have said they will reform the Human Rights Act after Brexit. What will be the nature of that reform? They have talked about a framework of the European Court of Human Rights. The European court and the convention are fundamental to the Council of Europe. The Government claim that they do not envisage leaving the Council, where, on the whole, we have an exemplary record, pace the case of Hirst.

I have a final positive reflection. The Government claim they will seek,

“a deep and special partnership”,

with our allies, but this task has been made more difficult by the red lines. I take comfort from there being throughout this dossier a mutuality of interest between us and our European partners. I hope that mutuality of interest will lead to relevant compromises that will at least ensure that the clear damage is limited.

--- Later in debate ---

[Baroness Williams of Trafford]

If the noble Lord will indulge me, I will talk about the European arrest warrant when I answer points raised by noble Lords. Perhaps that will clarify it; if it does not, I will come back to noble Lords in writing.

The noble Lords, Lord Jay and Lord West, and my noble friend Lord Kirkhope all talked about data. I made the point earlier about the huge data flows that come from the UK across to the EU. I absolutely accept the point and share their view on the importance of continued data sharing following our withdrawal from the EU. The EU, with the UK and its member states, has established unrivalled mechanisms for the exchange of law enforcement data on a daily basis, as the noble Lord, Lord West, pointed out. Our operational partners have made clear to this and other Select Committees how crucial this data is in our efforts to fight cross-border crime and prevent terrorism.

On the UK securing an agreement on data protection with the EU, we start from a position of trust in each other’s standards and regulatory alignment on data protection. The Data Protection Act 2018—which the noble Lord, Lord Kennedy, and I were involved in—and the adoption of the general data protection regulation strengthened UK data protection standards. I can quite safely say that we often surpass what is required of EU states. We were also one of the first countries to successfully implement the law enforcement directive. This provides a unique starting point for an extensive agreement on the exchange of personal data that builds on the existing adequacy framework. We believe that the EU’s adequacy framework provides the right starting point for the arrangements that the UK and the EU should agree on data protection, and the political declaration notes that the adequacy decision will form the basis of future data transfers between the UK and the EU. It also outlines that the Commission is committed to starting this assessment as soon as possible after exit day, with the intention to have a decision in place by the end of 2020; that commitment is relevant to the committee’s concerns about the sequencing of negotiations on data and security.

The committee and the noble Lord, Lord Jay, also reiterated the concern about the cliff edge and there being no mechanism in the draft withdrawal agreement for extending the implementation period. Both the UK and the EU agree that the implementation period has to be time limited, and the legal text sets an end date of 31 December 2020. However, the withdrawal agreement now also includes the possibility to extend the implementation period by mutual agreement of the parties. The committee highlighted the possibility of a security cliff edge, whether at the end of March or at the end of the implementation period. As the House would expect, the continued safety and security of both UK and EU citizens remains our top priority. This is why we are preparing for all eventualities, including the no-deal scenario that we are all seeking to avoid.

As part of our planning for such a scenario, we are preparing to move co-operation to alternative, non-EU mechanisms which we already use for co-operating with many non-EU countries. Broadly speaking, this would mean more use of Interpol, Council of Europe conventions and other forms of co-operation with European partners, such as bilateral channels. They are tried and tested avenues, so we are in a slightly different position in this area compared to those areas in which we are having to put in place new and unprecedented arrangements. We are none the less clear that these contingency arrangements will not be like-for-like replacements of the EU tools and would result in a reduction of mutual capability.

[Lord Anderson of Swansea]

My Lords—

[Baroness Williams of Trafford]

Will the noble Lord indulge me, as I am really running out of time? I have not said half of what I wanted to say. If the House will allow me to have a few additional minutes, I will write to noble Lords on any outstanding points.

The Government’s White Paper outlined that our future security relationship should be underpinned by appropriate safeguards, including respect for human rights—which the noble Lords, Lord Anderson and Lord Kennedy, and the noble Baroness, Lady Ludford, spoke about—comprehensive data protection arrangements and robust, appropriate governance arrangements. The UK is committed to membership of the European Convention on Human Rights and we believe that an agreement should include a mutual commitment to individuals’ rights. We are clear that we will remain party to the ECHR after leaving the EU. In line with this, the text of the political declaration recognises that appropriate reciprocal safeguards must be put in place to ensure that individual rights are protected and disputes can be effectively resolved. It is also clear that our future relationship must include an appropriate balance of rights and obligations; safeguards must be appropriate to the level of co-operation taking place.

I will now turn to some specific points raised; I will go over time. The noble Lord, Lord Jay, the noble Baroness, Lady Ludford, and others talked about there being no reference to SIS II or ECRIS in the political declaration. The noble Lord, Lord Bach, who talked about policing, raised concerns that the UK would be less safe without them. Under the terms of the withdrawal agreement, we will continue to use EU tools and data platforms, including SIS II and ECRIS, for the duration of the transition period. The political declaration text reflects that the UK and the EU have agreed to continue to exchange information on wanted or missing persons and objects and on criminal records, and that our future relationship should include capabilities which allow for that.

A number of noble Lords voiced their concerns about the European arrest warrant, and whether we will still be able to use it. Basically, the UK and the EU have agreed to establish arrangements enabling the UK and member states to surrender suspected and convicted persons efficiently and expeditiously. The political declaration also provides the basis for agreeing surrender arrangements, including streamlined procedures and time limits maximising the effectiveness of such arrangements. Both the UK and the EU recognise the importance of continued, close and effective operational co-operation on extradition. The legal vehicle through which co-operation in this and other areas will be delivered will be for the next phase of negotiations. I hope that answers the noble Baroness, Lady Massey, and the noble Lords, Lord Anderson, Lord Kennedy and Lord Jay.

The noble Lords, Lord Jay and Lord Kennedy, talked about security co-operation in Ireland and Northern Ireland and its historical importance. I totally agree with them on the importance of that. The comprehensive security partnership we are seeking with the EU will include the Republic of Ireland, ensuring that this important co-operation can continue.

The noble Lord, Lord Jay, and the noble Baroness, Lady Smith of Newnham, talked about the role of the CJEU after exit. The UK has said that, while it will be outside the direct jurisdiction of the CJEU, it is prepared to make commitments with respect to the CJEU as set out in the White Paper. This is reflected in the political declaration, in which we have made it clear that the closer and deeper the partnership, the stronger the accompanying obligations.

The noble Lords, Lord Ricketts, Lord Soley, Lord Browne of Ladyton and Lord Bach, and the noble Baroness, Lady Smith of Newnham, talked about contingency planning. We are working intensively with operational partners to ensure we are ready and well placed to make best use of the alternative channels with EU member states. We are not complacent and will continue to work closely with them as we put those plans into action.

I am sorry to go back to the European arrest warrant, but the noble Lord, Lord Jay, asked about live cases. The requests we have made will be a matter for EU member states. The Home Office and our operational partners are engaging with our counterparts in EU member states to find out how they intend to handle live cases at the point we leave. Our overall objective in this area, shared by our counterparts in Europe, is to minimise disruption to operational work. The legislation is quite clear on incoming requests. Under the Extradition Act, if we make an arrest on an EAW the court proceedings have to continue under that part of the Extradition Act. In these cases as well, our overall aim will be to ensure that cases are handled without disruption.

I have run out of time. There are a number of questions that I have yet to address. This has been an excellent debate. I hope the other place has listened to the civilised way we have conducted ourselves. I will write to noble Lords fully on the questions I have not yet answered. I thank noble Lords for taking part in the debate.