European Union (Withdrawal) Bill

Lord Callanan Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, as we have heard, these amendments relating to reciprocal issues are key to continuing to protect and assist British citizens after Brexit, including children and protected persons, in ways that hitherto our EU membership and cross-border agreements have provided. In particular these are the European arrest warrant, the mutual recognition of family court judgments, information exchange, Europol and Eurojust.

The Government’s approach to these issues must be agreed in principle with the EU in time to be included in the framework part of the Article 50 requirements and form part of the withdrawal agreement, so a satisfactory approach to these will be key to the future vote on that deal. However, as we have heard from speakers tonight, there seems to be an extraordinary lack of urgency, especially if there is any chance—I am not sure whether this is what the noble Lord, Lord Hannay, hinted at—that a standstill transition agreement could not cover these issues. That would make it even more urgent.

I ask in particular about the Government’s urgency, or lack of it, as I began asking Written Questions on this a year ago. The noble and learned Lord, Lord Keen, will remember it very well: it was on St Valentine’s Day last year—I do not think he chose it to be that day, but never mind—that he answered some of my questions on matrimonial and maintenance proceedings. It was very reassuring: he said that the Government,

“recognises the importance of the issues”.

Wow. There was no more than that then, nor indeed on civil judicial co-operation and cross-border disputes and family law when he replied to a similar Written Question in August. I worry about the lack of progress since then.

As the Prime Minister has remarked and others have repeated, keeping our citizens safe is the first mission of any Government. Therefore, like others, I welcome that she used the Munich speech to reiterate her desire to negotiate continued, and in some cases enhanced, co-operation with EU nations and particularly with these bodies and schemes. As we have heard, the amendments cover the Schengen Information System, the European arrest warrant, the European Criminal Records Information System, Europol and Eurojust. Given what we have heard today and in earlier debates, the Minister will recognise the importance of our continued participation in all of those, but also the challenges that that will bring to them in negotiating.

While we heard from Munich the desire for this comprehensive agreement, it is time for the Minister to offer a bit more detail and clarity sooner rather than later. It is about the direction of travel or the objectives. It does not undermine any negotiations for us, not just our Parliaments, to know what the Government want to do. As the noble Lord, Lord Deben, said, it is time for the Government to move from intention to reality. These issues, as has been touched on just now, are partly held up by an obsession with red lines around the ECJ. They cannot be allowed to stand in the way of some logical and sensible solutions to these problems. These issues are too important to be left to a divided Cabinet. At the moment I see a pantomime horse, or Dr Dolittle’s pushmi-pullyu, being pulled in two different directions, mostly about red lines that are immaterial to the issues we have been discussing. I hope we can hear about some direction and some practical steps from the Minister, particularly on how these negotiations are taking place.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

I thank all noble Lords and noble Baronesses who have contributed to what has been a fascinating debate. I reiterate the Government’s commitment to ensuring that the outcome of our negotiations with our partners in the EU delivers continued close co-operation on internal security matters.

There are parallels between the effect of Amendment 13 in the name of the noble Baroness, Lady Ludford, and that of Amendment 12 in the name of the noble Lord, Lord Wallace of Saltaire, which was debated previously, in so far as they both seek to discuss the future relationship with the EU, which is, of course, subject to the negotiations. The noble Baroness’s amendment seeks to prevent the Government from bringing regulations into force until agreed procedures for continued participation in EU internal security measures have been approved by both Houses. The Government have already committed to providing Parliament with a meaningful vote on any final deal. This will give Parliament the opportunity to scrutinise the future relationship between the UK and the EU in all these areas. For this reason, it is our view that the amendment is not needed.

I must come back to the points made by my noble friends Lord Hamilton and Lord Lamont. Many noble Lords have pushed me and asked for further detail and clarification on the negotiations. This Bill is negotiation agnostic; it is not concerned with the negotiations. I understand why people want clarification in all those areas, but, of course, when we have reached an agreement, it will be the subject of future legislation that noble Lords will no doubt want to comment on in great detail. However, I will attempt to answer as many questions and go into as much detail as I can. I suspect that the noble Lord, Lord Adonis, may be a little disappointed yet again, but I will do my best.

--- Later in debate ---

[Lord Adonis]

Can the Minister answer the question put by the noble Lord, Lord Thomas, as to which Minister is taking the lead in the security negotiations?

[Lord Callanan]

I will come to that later in my speech, but I will answer that question.

In that same paper, we made it clear that we value the operational benefits that we derive—I was struck by the comments on this from the noble Lord, Lord Hogan-Howe, and on how valuable many of them are. The noble Lord, Lord Hannay, referred to many of them, too, including the passenger name record directive, the second generation Schengen Information System and the European arrest warrant. There is also ECRIS, referred to by the noble Earl, Lord Listowel, and all the various acronyms that go with many of these JHA matters. They are all to do with the systematic exchange of information with our EU partners—for example, on criminal records—which helps to deliver fair and robust justice. I hope that reassures the noble Lord, Lord Cormack. He referred to Interpol. I assume that he meant Europol, but, for the avoidance of any doubt, I should say that we continue to co-operate in the same way with Interpol.

We made it clear that we want to agree future arrangements in this area that support co-operation across a range of EU measures and agencies, and to avoid operational gaps for law enforcement agencies and judicial authorities in the UK and the EU. The level of co-operation that we want to sustain goes beyond the specific tools and measures highlighted by the noble Baronesses, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis. We have described the legal instruments here as a “toolkit” that can provide cumulative benefits. We have also indicated that we want our future partnership with the EU in this area to be dynamic, allowing us to co-operate if necessary in new ways in the face of evolving threats.

The amendment tabled by the noble Baroness, Lady Kennedy, highlights the respective roles of domestic courts and the CJEU. We made it clear in our future partnership paper on security, law enforcement and criminal justice that a future agreement in this area would need to provide for dispute resolution. Let me give a little more detail on that.

On leaving the EU we will bring to an end the direct jurisdiction of the CJEU in the UK. There are a number of existing precedents where EU agreements with third countries provide for close co-operative relationships without the CJEU having direct jurisdiction in those countries. The UK will engage proactively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU. We also published a separate future partnership paper on enforcement and dispute resolution last August, addressing many of those points and setting out the Government’s approach to these issues.

The House has of course debated this issue on a number of occasions, particularly earlier this month, on 8 February, in the debate on the EU Committee’s report on judicial oversight of the European arrest warrant. The withdrawal agreement and implementation Bill will implement the withdrawal agreement in our domestic law. In addition, the Government have already committed to provide Parliament with a meaningful vote on any final deal. This will give both Houses of Parliament the opportunity to scrutinise again the future relationship between the UK and the EU. We need to be able to work with the EU to respond quickly and effectively to the changing threats we face from terrorism and serious organised crime. In negotiations, we will be seeking to agree the best possible way to continue our work alongside our European partners in support of our common goals and shared interests. We are absolutely committed to securing the close relationship that the noble Baronesses, Lady Ludford, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis, want to see—and on that basis I hope that they will not press their amendments.

Amendment 99, also tabled by the noble Baroness, Lady Kennedy, would prevent regulations made under Section 7(1) of the Bill from diminishing the protections in relation to “protected persons” set out in Part 3 of the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014. As I understand it, the amendment seeks to ensure that the relevant authorities in England and Wales will continue to recognise and act upon European protection orders made in remaining member states after exit day, whether or not those states act on ours.

The EPO regime, established by an EU directive of the same name and implemented in England and Wales under the cited regulations, which came into force in 2015, is essentially a reciprocal regime. It requires the relevant designated authorities in the different member states involved to act and to communicate with each other in the making of an order and in its recognition and enforcement—and also, indeed, in any modification, revocation or withdrawal of one. It is not possible for us to regulate from here to require the relevant authorities of remaining member states to act in any particular way. As such, if we are not in a reciprocal regime we will no longer issue EPOs to remaining member states, since it would be pointless to do so, and nor will the authorities in those member states issue them to the UK, for the same reasons.

In short, absent our continued participation in the EPO regime, or in some proximate reciprocal arrangements in its place, these regulations will be redundant; they do not work unilaterally. This amendment therefore pre-empts the outcome of the negotiations, potentially requiring the retention of redundant legislation. It would not be right to create a false impression by retaining redundant legislation. I am happy to be clear, however, that if the forthcoming negotiations produce an agreement to continue access to the regime established under this directive, or something like it, appropriate steps and legislation will be brought forward to implement it at that time. This will encompass the protections for protected persons. We will, of course, consider that at that stage. Meanwhile, for now, there is no practical point or purpose in having such an amendment or these provisions.

I shall answer some of the other points that were made. The noble Baroness, Lady Ludford, asked me about the O’Connor case and about extradition to the UK from Ireland. I am sure that the House will understand that I am somewhat limited in what I can say on this matter; it is a live case at the moment. Suffice it to say that we are monitoring it closely, but it would be wrong to speculate on its impact before the case is concluded. Once it is, we will be happy to do so.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, I think it was, asked how we could reconcile the principles set out in the Prime Minister’s Munich speech, first on UK sovereignty and secondly on the ECJ. As the Prime Minister said:

“The Treaty must preserve our operational capabilities. But it must also fulfil three further requirements. It must be respectful of the sovereignty of both the UK and the EU’s legal orders. So, for example, when participating in EU agencies the UK will respect the remit of the European Court of Justice. And a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”.


The noble Lord, Lord Hannay, asked about justice and home affairs in the implementation period. We welcome the EU’s position that the UK should continue to participate in existing justice and home affairs measures where it has opted in. We also want to ensure that the UK and the EU can take new action together against unforeseen incidents and threats during that period. For those reasons, we want to be involved in new measures introduced during implementation where that is appropriate. He also asked about the Prime Minister’s speech in Munich. I confirm that she was talking about all the justice and home affairs measures he mentioned—the EAW, ECRIS, Europol and all the other appropriate acronyms.

The noble Baroness, Lady Ludford, asked about the European arrest warrant and about the chance of a successful outcome compared with Norway. We value our co-operation through the EAW as it provides a faster and cost-effective way of handling extradition and helping us tackle cross-border criminality. With regard to Norway, our starting point for negotiations on future co-operation will be different from that of either Norway or Iceland, where a bilateral agreement is also in place. Of course, our starting point is different from theirs in so far as our extradition arrangements will be fully aligned with those of the EU at the point of our exit since we operate the same tool. That was not the case with Norway and Iceland when they joined.

The noble Lord, Lord Thomas, asked where we are in the negotiations and who is doing them—which the noble Lord, Lord Adonis, was also interested in. The Secretary of State for Exiting the EU is responsible for conducting negotiations in support of the Prime Minister. He is supported by the core negotiating team, which is made up of senior officials from a range of government departments. In response to his question about contacts, officials are engaging now and constantly with EU counterparts on a range of issues—but I come back to my earlier point that it would not be appropriate to give a running commentary on these discussions. We approach the next round of negotiations with optimism.

[Lord Thomas of Gresford]

Can the Minister tell us if the European Union has appointed anybody to represent the 27 other countries in conducting the other side of treaty negotiations?

[Lord Callanan]

Michel Barnier is the EU chief negotiator. I thought that that was fairly obvious.

Finally, the noble Lord, Lord Adonis, asked about no deal. Of course, we approach these negotiations not expecting failure but anticipating success. We are confident that continued practical co-operation between the UK and the EU on law enforcement and national security is very much in the interests of both sides, so we approach these negotiations anticipating success. We do not want or expect a no-deal outcome. However, a responsible Government should prepare for all potential outcomes, including the unlikely scenario in which no mutually satisfactory agreement can be reached. That is exactly what we are doing across the whole of government. The UK uses and benefits from a range of international information-sharing tools in the area of security and law enforcement, which are by no means limited to EU mechanisms but include bilateral and multilateral channels, including Interpol and the Council of Europe.

I hope I have answered all the questions—

[Lord Thomas of Gresford]

Do I understand the Minister to be saying that the people conducting the trade negotiations will deal with the security stuff as well? Is that what he is saying? Are there no lawyers on the other side to conduct the negotiations on behalf of those 27 other countries? What is the situation?

[Lord Callanan]

There are lead negotiators on each side but they are supported by a whole range of officials and Ministers from various departments. David Davis is our negotiator, Michel Barnier is the EU’s negotiator, and they have different members in each of the teams—

[Lord Thomas of Gresford]

But is the withdrawal agreement the same thing as the treaty or are they separate?

[Lord Callanan]

No, the treaty will be a separate piece of legislation when we negotiate it. I hope I have tackled most of noble Lords’ questions and they will be able to withdraw or not move their amendments.

[Lord Pannick (CB)]

May I just ask the Minister about his comments on the European Court of Justice? Is there anything in the case law of the ECJ that justifies the Government’s reluctance for it to continue to be the dispute resolution procedure for the matters we are discussing?

[Lord Callanan]

We have been clear that respecting the Brexit vote means delivering on having control of our own laws. Our Supreme Court will be the ultimate arbiter of our own laws and it would not be appropriate to submit ourselves to the jurisdiction of a foreign power.