Detainee Mistreatment and Rendition
Lord Hodgson of Astley Abbotts Excerpts(4 years, 10 months ago)
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Lord Young of Cookham
The noble Lord will know better than I do the reasons why that inquiry could not proceed. There were extensive discussions and negotiations between the ISC and the Prime Minister to see if it could find a way through and interview witnesses. I am only sorry those discussions did not end in agreement and the inquiry came to an end.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I declare an interest as treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Can I probe my noble friend a little further on the answer that he has just given? The ISC said its report, which he referred to, was incomplete, because access to key witnesses had been blocked. Therefore, the inquiry could not and must not be taken as a definitive account. We surely cannot leave this hanging over our country’s reputation. Will the announcement to be made later this week or next week answer those questions and definitively lay out the relationship between the ISC and the Government in the future?
Lord Young of Cookham
It will be this week rather than next week. The announcement later this week will give an answer to whether there should be a judge-led inquiry, and it will publish the conclusions and recommendations of Sir Adrian Fulford’s report, which was completed last week, together with the Government’s response. I do not have in front of me the answer to whether it will address all the issues raised by my noble friend.
Political Parties: Donation Rules
Lord Hodgson of Astley Abbotts Excerpts(4 years, 11 months ago)
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Lord Young of Cookham
The noble Lord will be aware that some cases concerning the Leave.EU campaign have been referred to the police. On his question about resources for the Electoral Commission, the last time he asked me that I pointed out that there had been an underspend. Since then, the Electoral Commission has put in an increased bid for next year of, I think, 11% for resource expenditure and 18% for capital expenditure. That has been approved by the Speaker’s Committee on the Electoral Commission, because it is that committee that finances the Electoral Commission, not the Government. It has yet to be ratified by the other place but I hope that it will be. That would give the Electoral Commission the resources that it needs, to which the noble Lord referred.
Lord Hodgson of Astley Abbotts (Con)
My Lords, is my noble friend aware that there is a Law Commission Bill on electoral reform which is, as they say, shovel-ready? It has many important changes in it and, being a Law Commission Bill, is relatively uncontroversial. Could we not find time to bring it forward to remedy some of the deficiencies in our electoral law?
Lord Young of Cookham
As I said on Monday, there appears to be some headroom in the Government’s legislative programme at the moment. Sitting beside me are two members of the relevant Cabinet sub-committee that processes bids for legislation and they will have heard my noble friend’s suggestion. Were there to be such a Bill, I hope that it would be taken through by law officers and not by me.
Third-party Election Campaigning
Lord Hodgson of Astley Abbotts Excerpts(5 years, 8 months ago)
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Lord Hodgson of Astley Abbotts (Con)
My Lords, the noble and right reverend Lord, Lord Harries, has been kind enough to say some complimentary things about my review, and so I return the compliment by congratulating him on giving us the chance to debate this important topic. I also note the leading role that he has played, both personally and within the group that he led, before, during and after the passage of the Bill. I will come back to quite a lot of what he covered later on in my remarks, so I will turn to my main thrust and not answer some of his points directly at this point.
My review of Part 2 of the rather clumsily named Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act was a statutory requirement—as the noble and right reverend Lord has pointed out—imposed by Section 39 of the Act. Admirably supported by a team from the Cabinet Office, over the course of a year I visited all the devolved Administrations and, during the 2015 general election campaign, visited several constituencies to see whether the provisions of the Act particularly pinched. We spent quite a lot of time looking at joint campaigning along the line of HS2, which had considerable local opposition, and took a great deal of evidence from individuals and bodies, several of whom have contributed briefings to your Lordships’ House for the debate today. I was very grateful to them all. My concluding report, published as Command Paper 9205, ran, I regret to say, to 99 pages.
I have a couple of general points first. One unexpected aspect of the evidence I received was how many people thought this was an entirely new Act. Of course, it is not an entirely new Act; it merely revises Part VI of the Political Parties, Elections and Referendums Act 2000. So the framework—not the detail—for regulating third-party lobbying had been in place for some 15 years. In many cases, people did not appear to understand this and their reaction to the Act was possibly, in part, as a result of not understanding what had always been required of them. Secondly, PPERA was passed in the year 2000; it is common ground among all of us that political campaigning in the year 2000 was light years away from where we were in 2015. The whole of the social media movement and industry barely existed in 2000, but now plays an increasingly important role and, unless I am much mistaken, will become even more dominant in the future as data mining—the ability to identify individual citizens’ preferences—becomes more widespread and effective.
The fundamental principle that guided my review—summarised on page 14 of my report—was to ensure that public trust and confidence in the integrity of our electoral system was maintained while, at the same time, not shutting off the historically rich diversity of public participation and involvement in our elections. The weight of evidence that I received was overwhelmingly that these twin objectives could not be maintained without an up-to-date statutory framework. I therefore saw no grounds for proposing the repeal of Part 2 of the Act. Most commentators on Part 2—and indeed the noble and right reverend Lord, Lord Harries, himself—focus on the charity and voluntary sector. That is fair enough, but Part 2 does not apply just to voluntary groups; it applies to every organisation—commercial or otherwise—some of which may have more obscure origins and objectives. I am afraid that the charity and voluntary sector, which I greatly admire and support, is not peopled entirely by angels. While the overwhelming proportion of charities behave properly, there are outliers who behave less well. We have seen examples of this in recent years. It is these outliers who set the political weather.
Much has been made by the noble and right reverend Lord, Lord Harries, of the so-called chilling effect of Part 2 of the Act. We need to be careful to distinguish between a novelty effect and a chilling effect. In 2015, the first general election at which the Act was in force, individual groups found it hard to get consistent advice from their lawyers, the Charity Commission and, most importantly, the Electoral Commission. Indeed, in my review, I made a number of specific recommendations as to how the role of the Charity Commission could be made more user-friendly, particularly in respect of smaller campaigning groups. In my view, the passage of time and greater experience will smooth away some of the edges of the so-called chilling effect. Nevertheless, the title of my report, Third Party Election Campaigning – Getting the Balance Right, indicates that I did not conclude that everything in the garden was rosy.
During the rest of my remarks, I want to draw the Government’s attention to three major areas which, in my view, require urgent attention. In large measure, I am running in parallel with what the noble and right reverend Lord, Lord Harries, has been saying. The first is the intent test. I concluded that the provisions of the Act should be focused solely on what I called electoral campaigning—activities intended to influence individual voting choice in the run-up to and during a general election campaign, at a time when the general public are, so to speak, switched on to the electoral process. This activity is distinct from what I called advocacy—the business as usual of a particular campaigning group. It is also different from political campaigning—direct approaches to political parties, MPs or Members of your Lordships’ House.
As the noble and right reverend Lord, Lord Harries, has pointed out, the statute currently catches any activity which can be reasonably regarded as intended to procure electoral success. The challenge is that what can be reasonably regarded may change from person to person and over time. An example may help illuminate my point. Suppose you run a small charity which opposes the export of live animals. In the midst of a general election, a number of calves are found dead on a ship in a channel port. You find yourself in the middle of a media storm, trying to balance achieving your charity’s strategic objective of banning the export of live animals, while avoiding the electoral implications of the statements you may be making. This is not an easy balance to achieve and one where actions taken under extreme pressure during a general election campaign may appear less well thought through at subsequent, calmer and more reflective times.
Happily, there are two possible solutions. First, the Representation of the People Act 1983, which covers local elections, has a test of intent which has stood the passage of time. It could easily be transferred to this Act. If this approach did not appeal to the Government, it would also be possible to establish a code of practice which would be approved by Parliament, compliance with which would provide a statutory defence. In my view, adopting either of these approaches would end the argument about chilling once and for all.
My second point concerns an area where the provisions of the Act are, in my view, too loose. This is the issue of what constitutes a member. As the noble and right reverend Lord, Lord Harries, pointed out, the members of an organisation can quite rightly be communicated with without falling foul of the provisions of the Act. The Electoral Commission has devised what it calls a “committed supporter”, which in my view is insufficiently clear. In an age of social media, it is too easy for an organisation to mail thousands of individuals at near zero marginal cost, inviting them to tick a box to become a committed supporter. Indeed, it is possible to consider that in due course you will have a negative pledge: if you do not tick a box, you will be considered to be a committed supporter. My report therefore suggests that a much higher degree of commitment is needed, which I describe as a “constitutional member”, and I suggested various yardsticks by which that could be measured.
My third and final point concerns imprints. Noble Lords will be familiar with the requirement for political parties to put an imprint on all their printed material—published by so-and-so at such and such an address for such and such a candidate. In my view, third-party campaigners who have registered with the Electoral Commission under Part VI of PPERA should be required to disclose this fact on all relevant material together with their internet and social media pages. Surely the general public are entitled to be put on notice where individual third-party campaigners are undertaking a particular degree of electoral activity at election time. Transparency demands no less.
To conclude, naturally I was pleased that my report was generally well received by the voluntary sector, the legal profession, the Charity Commission and, with the proviso that the noble and right reverend Lord, Lord Harries, mentioned about the intent test, by the Electoral Commission, as well as at least initially by the Government. I have been disappointed that government support has subsequently gradually ebbed away.
As my report went to the printers, the Law Commission produced a heavyweight study on general electoral law, outlining a good many deficiencies, inconsistencies and confusions which needed remedying. In an increasingly cynical age, it must be more than ever important that our fellow citizens have confidence and trust in all aspects of our electoral system. I therefore still treasure the hope that the Government will, in due course, find time to pull both these reviews together and so give the country an electoral system fit for the modern age.
Representation of the People (England and Wales) (Amendment) Regulations 2018
Lord Hodgson of Astley Abbotts Excerpts(6 years, 2 months ago)
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Baroness Seccombe (Con)
My Lords, I welcome these regulations. I understand the fear of somebody who has been a victim of harassment and domestic violence, and not wanting to see their name and address appear on a public document. For people who have been subjected to that sort of treatment, anonymous registration is an excellent idea. The point I want to make is that the men—we must remember that one in three victims of domestic violence is a man—are very often the good guys, who want to leave the family in the domestic home and move on to get somewhere where they can be away from the family. It is very important that that offer is open to men and is known to be open, because all the blurb refers to women, women’s refuges and so on. In this year of 100 years of women having the vote, we must not forget that families are made of male and female. Long may it be so.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I too support these regulations, but I will probe my noble friend Lord Young on them and their position in the reform of electoral law that we are proposing to undertake, or have been talking about for some time.
First, on the change to the anonymous registration scheme, I of course absolutely support the widening of this gate. The fear of being bullied, threatened or attacked is very real. Therefore, people should be provided with the appropriate anonymity to protect their democratic right. But, of course, there is a balance to be struck because the transparency of the electoral roll is a very important part of our democratic system. Therefore, we need to bear in mind the extent to which the gate is being widened and the appropriateness of it being widened.
As my noble friend explained, the attestation procedure has now been widened quite a lot. While I absolutely understand about the police and the reduction of the rank to inspector, where it is quite an impersonal relationship, the other two categories move to a much more difficult and much closer relationship in the sense that a registered healthcare professional, as listed in the regulations, will be under a lot of moral pressure, come what may, to look after their patient. They will perhaps find it difficult to make a completely dispassionate judgment about whether anonymity should be granted in a particular case. That is referred to in paragraph 7.7 of the Explanatory Memorandum.
Paragraph 7.8 concerns refuge managers. That is an even wider category of individuals. It is clear from reading the Explanatory Memorandum that the Electoral Commission was concerned about this. Paragraph 8.2 says that it was concerned about,
“how widely the definition of a refuge manager may apply”.
The Government’s response is that its concerns were addressed,
“through a tightening of this definition”.
It would be helpful if my noble friend could give us a little bit of information about what took place in that regard. The problem is that it is not really clear how controlled that category may be. Obviously, refuge managers have a particular position and role to play, but we need to know that they are being properly watched over. There is a mention in paragraph 7.8 of the register of refuge managers. It says:
“The Electoral Registration Officer can then confirm that the refuge is registered on the ‘Routes to Support’ directory, a UK-wide online database”.
Do they have to be on that database to be permissible or is it at the discretion of the local electoral returning officers? My concern is that the gate is being widened. I understand why—my noble friend Lord Young made a powerful case for it, which I understand—but I hope that the Government will perhaps take a look at the situation in a couple of years and see to what extent it is being used properly in achieving the balance between this very proper area and the need to have a properly transparent electoral roll.
Turning to the changes to the wider registration system, I understand the need to simplify it and tighten it up against misrepresentation and fraudulent behaviour. It was not entirely clear to me why individuals should not be allowed to be told. This relates to paragraph 7.16: the Government have decided that they should not be told whether they are to be included on or excluded from the register, and that paragraph says:
“There is no added benefit to the elector of this letter”.
It seems to me that people should be told whether they have been successful or unsuccessful, as opposed to just finding out from examining the electoral roll themselves. There are some issues about how the local returning officer and the Electoral Commission work together.
Before I conclude, I want to draw my noble friend’s attention to two further points. I do not ask him to respond to them today but, as he pointed out in his opening remarks, we are all agreed that we need to maximise voter registration and participation. There is a strange anomaly where if you seek to register to vote in person, you can use a pretty wide range of identity documents, such as your passport or driving licence. But if you choose to register online, you have to use your national insurance number and no other document will do. I do not know about other noble Lords but my knowledge of my national insurance number and my accessibility to it is a great deal less than for my driving licence, which is probably in my wallet, or my passport, which will be to hand. So I wonder why we have that strange anomaly where online registration, which we are trying to encourage people to use, can be done only if you have your national insurance number to hand. I suspect that many people do not have it to hand and have some difficulty finding it out. As I say, I am not asking my noble friend to reply to that today but perhaps he could write to the Members of the Committee about it.
My very last point relates to where this fits into the situation for the reform of our electoral law. These are some welcome and important bits of sticking plaster but there is a large Law Commission Bill on electoral law, which it says is shovel-ready. You have only to consider the headings of the chapters in that important document to see how it goes to the heart of our electoral system. Those headings include: “Management and Oversight”, “The Registration of Electors”, “Manner of Voting”, “Absent Voting”, “Notice of Election and Nominations”, “The Polling Process”, “The Count and Declaration of the Result”, “Electoral Offences”—that includes the important issue about bribery and treating which we debated in this Room not so long ago, and where we are working from a Victorian statute which is now not really fit for purpose—and “Regulation of Campaign Expenditure”. Those are some serious issues, raised by an apolitical body which has a chance to bring our system up to date and in line with modern practice. At a time when people have concerns about the way our system is working, we should make every effort to make it as clear, transparent and modern as possible.
My noble friend will forgive me if I refer to an Answer he gave to a Question I tabled just before Christmas on whether the Government planned to introduce any Bills in the current Session using the Law Commission procedure. On 8 January, he very kindly responded, saying that the Government work closely with the Law Commission and support its work to improve the statute book, and that the introduction of new Bills would be announced “in the usual manner”. I am sure my noble friend will forgive me if I say that I do not find that an entirely satisfactory Answer.
Lord Rennard (LD)
My Lords, in our various debates on electoral registration issues our usual mantra is about the accuracy and completeness of the electoral register. The measures before us may be of some marginal help in improving the completeness of the register and its accuracy, but in very small ways. They may mean that some of the victims of domestic abuse, or people who are vulnerable as a result of other serious criminal activity, will now register to vote when they may not be able to do so otherwise. There is certainly evidence that some of these people may have feared the consequences of registering and this may have deterred them from complying with their obligation to co-operate with the electoral registration process. We need to safeguard the interests of such people and guarantee their democratic rights.
My only concern about the new rules for anonymous registration is that some people may feel that they have to pay a charge to a GP as part of the process. If someone is a victim of domestic violence, or under any threat of violence which means that they should be registered to vote without publication of their address, I cannot think that it would be right for them to be charged by anyone in return for certifying their status and enabling them to register anonymously. It would effectively be a charge to register to vote.
Of course, GPs are very hard pressed and there may be better routes for people to secure a statement confirming that anonymous registration is necessary. I cannot believe that many GPs would feel it necessary to make a charge for confirming the status of a victim of domestic violence, or of someone living in fear of violence, if their address can be identified from the electoral register. The evidence submitted by the Cabinet Office suggests that 90% of GPs will not make a charge, but that of the 10% who might, their charges might range from £30 to £63. It seems potentially misleading for that evidence to suggest, therefore, that the average charge may be around £4, based, I assume, on the estimate that 90% of GPs will not make such a charge and the charges made by 10% of GPs is averaged out across all of them. It would be equally true to say that of those GPs who might make a charge, the average could be over £45.
There are, of course, many other health professionals, refuge managers or police inspectors able to attest to the need for anonymous registration without someone going to their GP. However, going to a GP to secure anonymous electoral registration may also help identify significant health issues that need to be addressed, so there could therefore be many benefits in going to the GP to discuss these issues. The suggestion that such vulnerable people might be expected to pay to secure anonymous registration via a GP seems utterly wrong to me. Therefore, I hope that the Minister will comment on this issue and say what guidance may be issued to GPs on informing some of their patients that anonymous registration may be necessary for them, and on how the GP can attest to their status, if appropriate, without such people being expected to pay for it.
Other issues that have been set out may be considered relatively minor, in my view. Explaining on registration forms who may not be entitled to vote if they are not qualifying Commonwealth citizens, citizens of the Irish Republic, citizens of the UK, et cetera, is not something with which one can argue, but the need to explain this highlights the complexity of the franchise issues. As we prepare to extend the franchise to people who have moved abroad for longer than 15 years, it is high time that we looked again at the franchise issues, including extending the franchise to those who are legally entitled to live and work here permanently. I believe that that should include many of the 3 million EU citizens who currently enjoy the right to live and work here. Does the Minister agree that there should at least be a debate about such issues?
European Union (Withdrawal) Bill
Lord Hodgson of Astley Abbotts Excerpts(6 years, 3 months ago)
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Lord Hodgson of Astley Abbotts (Con)
My Lords, I share the views expressed by many other noble Lords that this is at root an enabling Bill—albeit one with serious and complex constitutional and societal implications, as the noble Lord, Lord Lisvane, reminded us in his excellent speech a few minutes ago. However, its overarching purpose is to give effect to the wish of the British people to leave the European Union as expressed in the referendum, and it therefore has my support. I come to this debate as what can best be described as a “mild Brexiteer”. I am afraid that I cannot support the more extravagant claims of triumph or disaster espoused by many who have more convinced and settled views. Indeed, I wonder about what lies ahead with artificial intelligence and robotics and their impact on this country and our whole way of life. That impact may be so great that the effect of Brexit may pale by comparison.
My approach to the “European project”, as I understand people like to call it, has changed over the years, from an initial great enthusiasm at the time of this country’s entry into what was then called the European Economic Community. These views were based on personal experiences, and mine were based on the fact that I was born during the war. By the time I was born my father was already in khaki, on a troop-ship bound for the Far East. He returned unharmed, and I first met him when I was about four and a half years old. I am sure that my mother was concerned and worried—although she kept this from me—and I had friends whose fathers had been killed or wounded. So I need no lectures from noble Lords about the death and destruction that Europe has wrought upon itself twice in the last century. However, I have a growing sense that the project has lost touch with the views, hopes, fears and aspirations of a great many of those it sought to represent.
The Explanatory Notes, on page 6, summarise the four main functions of the Bill. I will focus my remarks on the third of these: the power to make secondary legislation—delegated powers. That is not because the other functions are not extremely important and do not require intensive scrutiny—they certainly do, as many speakers referred to earlier—but because to me, the sharp end is where mission creep may occur, and where the temptation of a power grab may prove irresistible. I do so against the background of the experience I gained as a member for some years of your Lordships’ Secondary Legislation Scrutiny Committee, under the able chairmanship of my noble friend Lord Trefgarne.
Focusing on Clause 7 and its associated sections, one has to recognise on the one hand the complexity and magnitude of the task that will be undertaken, and on the other the extraordinarily wide powers that are sought. So there is a balance to be struck, which was very well illuminated in the speech of my noble friend Lord Bridges of Headley. In her excellent opening speech earlier today, my noble friend the Leader of the House explained some of the steps in the development of the Government’s thinking as to how we will tackle the challenge of this balance. We are to have a scrutiny committee—although its membership has yet to be determined. I am also not yet clear whether it will address issues surrounding tertiary as well as secondary legislation—and if it does not, what body will? Further, is its purpose solely to decide which legislative route a particular regulation will follow—negative, affirmative or whatever—or will it undertake the scrutiny as well?
As to the make-up of the committee, I have no doubt from my time as a member of my noble friend Lord Trefgarne’s committee that the quality of examination we were able to give a particular regulation was greatly enhanced by the presence on the committee of people with direct experience of that particular policy area. For example, knowing something about trade and industry I could contribute on that, but when dealing with social security I needed other members of the committee to bring their particular expertise to bear. So I hope that, as the Government’s thinking develops, consideration will be given to establishing a series of scrutiny or standing committees. One alone will surely not be able to do a serious job on the volume of legislation that lies ahead of us. Each of these would focus on defined policy areas and would contain some members with relevant experience of those subjects.
One of the major weaknesses of the whole procedure for scrutinising secondary legislation is that such legislation is unamendable. Your Lordships’ House is therefore always faced with what can best be described as a nuclear option—and, given that fact, has unsurprisingly proved reluctant to press the button. We face exceptional circumstances in this Bill. Is there not a case for establishing a special one-off procedure to deal with them? I note that in paragraph 57 of its report last September, and indeed in the report it published yesterday, the Constitution Committee of your Lordships’ House hints at the desirability of such a development.
Finally, in order to clarify what has been proposed and focus our discussions appropriately in Committee, would it be possible to produce some sort of flow chart showing how, when and by whom decisions are made, as well as the checks and balances built into the procedure, and fit that in to a parliamentary timetable? Maybe such a chart exists—but I have not seen it and it would be most helpful to have one before Committee.
To conclude, this important Bill has my support, but we have to work to do to examine it in detail. I hope that filibusterers on either side of the argument will stay at home—this House’s reputation is at stake and this Bill is too important for the playing of games.
Criminal Justice (European Investigation Order) Regulations 2017
Lord Hodgson of Astley Abbotts Excerpts(6 years, 5 months ago)
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Lord Hodgson of Astley Abbotts (Con)
My Lords, I do not propose to deal with the post-Brexit situation; that is a land from whose bourn no traveller returns unscathed. I will, however, raise with my noble friend a couple of questions around the situation as proposed in the EIO.
I need to declare two interests. First, I am a trustee of a charity called Fair Trials International. As the name implies, we are concerned with the operation of justice. I do not speak for the organisation. As far as I know it has no objections to the EIO in principle. I support the idea that we have an opportunity to execute judicial arrangements swiftly, clearly and fairly. I hope, therefore, to get reassurance—I am sure that I will get it—from my noble friend about how things operate on the ground in real life as opposed to the calm deliberations at a quarter to seven on a Wednesday evening in the Moses Room. Secondly, I was a member of the Secondary Legislation Scrutiny Committee, and I am afraid that I was the person responsible for raising the “temporary” issue. I left the committee half way through this matter, so I have form where this is concerned.
It is obvious that for a state to hand over a citizen to another state is a fundamental decision. One of the primary reasons for the existence of individual states is the protection of their citizens as individuals. I hope that the Minister and the Committee will forgive me if I go through a practical example for a couple of minutes and get the Minister to explain to me how the real-life situation works. I note from paragraph 3.1 of the Explanatory Memorandum that so far only nine countries have signed up to the regulation. There is a larger list in Schedule 2 on page 40 of the SI, so I presume that all will eventually become signatories and abide by the convention.
My real-life example is not of concern to noble Lords: we all know where to press the hot buttons to protect our position. There are, however, many people who are less able to defend themselves. Let us assume that I am a football fan and I am going to Bucharest in Romania to watch a European football match. That country is on the Schedule 2 list, not on the list in paragraph 3.1 of the Explanatory Memorandum. Let us assume that it has signed up to this. I am going to see my team play Dinamo Bucharest, a good, quality European team. I go to the match and it is fine. After the match I go into a bar with some friends. We have some drinks and a good time is being had by all, but a fight breaks out in the street outside, somebody is stabbed, and people spill into the bar to try to get away from the violence. Understandably, the police are called. Of course they either anticipate trouble—or sometimes welcome it, as a chance to have a bit of a go at the football fans, whom they do not necessarily regard very highly. I am sitting there with my friends and am required to give my passport number and details, which I am happy to do, and then I go home.
A couple of months later, the man who was stabbed outside has died, and I am served with an EIO to come and give a witness statement about what I saw and what happened to me that night. This is where I would like the Minister to take me through the process. I assume that the EIO is then served, like the European arrest warrant, through a magistrate, probably through Westminster which is where the EAWs go, but I would like to be certain about that. The magistrate can dismiss the application, but if he grants it, as I read this regulation, various options are open to him. He can make a deposition under oath, arrange a telephone conference call, arrange for an interview by closed-circuit television, or he can arrange for my physical transfer. As I understand it, I have to consent to transfer, although I would like the Minister to confirm that.
If I am transferred, that places a considerable burden on me for reasons which I shall explain in a minute. How can I be certain that the magistrate, or whoever is the investigating authority, is certain that the transfer is the last resort? It may be that the police and the investigating authorities in Bucharest would much rather have me present, saying, “We really would like to get Hodgson here because he’s a serious witness, and we don’t think it’ll work well with closed-circuit TV”. How do we make sure that that is the last resort? After that, who is it who actually lets me go? The noble Lord, Lord Faulkner of Worcester, asked in the Secondary Legislation Scrutiny Committee,
“whether it will be the Home Secretary personally who will be authorising the prisoners to be sent abroad under these orders or some designated official and if it is an official, what sort of official will it be?”.
Mr Hurd, a Member of Parliament, replied that it will be “the Minister”. Does that mean every single EIO goes across the Home Secretary’s desk? I will be delighted to be told that that is the case. The idea of the EAW is that it is a much faster and slicker arrangement than that. I would therefore like to be certain that the answer—which I am sure was given in good faith—is accurate.
On arrival, when I have been transferred to Bucharest, I give my evidence. However, there is a question about the availability of translation services—that need not concern us because it is not part of this regulation—not only of whether the questions are being adequately translated, but also of whether I understand their significance. The questions asked in different jurisdictions may have different weight attached to them, but that is another question. How do I know when I will be free to return? There is a suggestion here that the authorising person, the Minister, will say that it will be so many days or weeks. Will it happen and how is my judicial representative able to say, “That’s not fair. It’s too long”. Alternatively, is it just ex cathedra with, “Sorry, you’re going for 10 days”, or a fortnight, or whatever? When I am there, and the police are certain that they have got me bang to rights, innocent though I am, they say, “Thank you for your evidence, that’s great”, but they say to themselves, “The case isn’t quite ready yet, but it’ll be ready in two or three days. Since Hodgson’s clearly guilty, let’s hang on to him”. “Two or three days” becomes a week, becomes two weeks, three weeks and so on. We need be clear about what “temporary” means and how it works. Nick Hurd makes it perfectly clear in a letter to the committee that a prisoner “must be returned”, but he does not say actually when. I am a football fan. A month without any pay may interfere with my ability to pay my rent or mortgage, put food on the table for my family and, above all, if I do not know when I am going to come back, to make alternative arrangements to deal with my developing domestic circumstances.
I repeat that I do not oppose the measure as it is a useful adjunct to inter-judicial co-operation between us and other countries, making sure that people who have committed crimes are dealt with and sorted out quickly, but I am worried about the potential gap between the perfectly drafted legal system laid out in the papers before us and what actually happens to a person who is not terribly sophisticated, does not always know their rights and may or may not have access to first-class legal advice. He or she surely needs to have real protections before we transfer them to a state elsewhere—any state. It is a matter of principle that we look after our citizens. We need to make sure that if we send them abroad, we do so with the proper protections and provisions to ensure that their interests as citizens of the United Kingdom are safeguarded.
Baroness Ludford (LD)
My Lords, I welcome this short debate. The European investigation order is a valuable instrument. Therefore, I am pleased that the Government are implementing it. I was involved with it when I was a Member of the European Parliament. I was the lead MEP for the liberal group and involved in all the co-decision negotiations with the Council in finalising it. It has been a source of regret to me and, I think, to my political colleagues in the European Parliament that successive British Governments have not fully taken part in the fair trial rights side of the EU programme alongside enforcement measures such as the European arrest warrant and the European investigation order—that partly relates to what has just been said.
I am a patron of Fair Trials International and a huge admirer of its work. The EIO is a sort of European arrest warrant for evidence. A fair criticism of the European arrest warrant is that it was occasionally used as a fishing expedition. It was meant to be used only from the perspective of charge and prosecution.
Baroness Ludford
I do not think that that is in the EAW framework decision, but it was much discussed in the Julian Assange case with Sweden. Certainly, you had to be on the brink of those further stages of charge and prosecution—not when you just wanted to interview someone and were trying to collect evidence. I hope that the EIO will take the weight off the European arrest warrant and stop it being misused. That is all good. The EIO is for evidence; the search is for interception. It is much more efficient for police and prosecutors than relying on the rather clunky EU mutual legal assistance convention of 2000, which has never really worked. As the committee points out, it would be a very retrograde step to fall back on the MLA convention, just as having to fall back on bilateral extradition agreements under the aegis of the Council of Europe will be an alarmingly backward step if the UK is unable to stay in the European arrest warrant if we Brexit. So, like the noble Lord, Lord Rosser, I echo the question put by the committee about what concrete arrangements the Government propose to continue the efficiency and effectiveness that the EIO will deliver, as the European arrest warrant already does. In one of the committee’s reports, the Minister apparently said that,
“he hoped that close cooperation between Member States on security matters would continue, but the precise nature of future relations would be the subject of negotiation”.
Many of us are really quite eager to know how the Government propose to continue this essential cross-border police and prosecution co-operation.
Lord Young of Cookham
I do not have the answer at my fingertips. Clearly, it would have to go through the judicial process. As I indicated, we have transferred only one prisoner in the past five years and in that case there was not a problem with the prisoner being returned. In these circumstances the European convention offers similar protections to those in the charter but, unlike the EAW, which I think was mentioned by the noble Baroness, no detention or transfer can take place without consent under an EIO. I am advised that an urgent procedure is available if the person is in custody. That seems only fair. But I take the point that the noble Lord and the noble Baroness would like more information on this. I am also advised that effective dispute resolution mechanisms and protections for UK and EU citizens will be agreed as part of the negotiation on our future relationship with the EU.
That brings me to the final point raised. The fact that both noble Lords raised this indicates that when we do negotiate post Brexit, these particular issues need to be tied down to avoid any problems of delay in resolution. The question was: what contingency plans are in place in case no deal is reached with the EU and, indeed, what are we planning to do as part of an agreement? As the Prime Minister made clear in her Florence speech, we are unconditionally committed to maintaining Europe’s security now and after we leave the EU. What we must do now is agree the mechanisms to support ongoing co-operation. It is in no one’s interests that either the UK or Europe suffers a loss of operational capability as a result of the UK’s exit.
We have proposed a bold new strategic partnership with the EU, including a comprehensive agreement on security, law enforcement and criminal justice co-operation. That was set out in a paper on those subjects, which I think was debated earlier this year. We are seeking an overarching treaty with the EU that provides for practical operational co-operation, facilitates data-driven law enforcement, and allows multilateral co-operation through EU agencies. It is too early to say what future co-operation we may have in relation to individual measures, such as the EIO. In leaving the EU, we will end the direct jurisdiction of the Court of Justice of the EU. But there is significant precedent for the EU to have co-operation with third countries, including co-operation closely aligned to areas of EU law, but there is no precedent for a third country to submit to the jurisdiction of the CJEU. Effective mechanisms will be necessary to ensure that obligations that are agreed will be enforced after negotiations on the treaty.
I was asked what contingency plans are in place in case no deal is reached with the EU. We are confident that continued practical co-operation between the UK and EU on law enforcement and security is in the interests of both sides. The EU 27 made it clear in their Article 50 negotiating guidelines, published in April, that:
“The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.
So we approach these negotiations anticipating that an agreement in this area can be reached. We do not want or expect a no-deal outcome. But 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.
I hope I have addressed the specific issues raised.
Lord Hodgson of Astley Abbotts
As I understood it—and the noble Baroness, Lady Ludford, referred to this—one of the weaknesses of the EAW was that it was being used for fishing expeditions, which tended to undermine it, and that the EIO was to fill that gap; in other words, you could ask questions which did not require an EAW, which had been brought into disrepute in some senses. But that is not the case, is it? You have to be a prisoner before you can have an EIO, so we are back to fishing expeditions again. There is no way that an EIO could be served on the ordinary person in the street because they are not a prisoner. Our concern about fishing expedition continues, I think.
Lord Young of Cookham
It goes back to what the EIO aims to do. Basically, it is a judicial co-operation mechanism for providing assistance in investigating and prosecuting criminal offences and it replaces the existing scheme; that is, the existing EU and Council of Europe mutual legal assistance measures. It does this through introducing mutual recognition of other member states’ judicial decisions. As my noble friend said, it standardises the process for making requests by using a template form rather than a letter of request, and it specifies time limits for responding. All the evidence shows that it is already working quite well. A number of requests have been made and processed, and it is proving to be a much more efficient system than the one it replaces. As more member states sign up to the EIO, we believe that it will be an improvement on the previous mutual legal assistance scheme.
I am not sure that I have fully understood the point made by my noble friend, in which case I shall read it again in Hansard. I will drop him a line and hope to give him and the noble Baroness an assurance. As I have just said, the EIO is a mutual legal assistance measure. An individual can give a voluntary statement under an EIO or could be compelled to come to court in the UK in the same way as in domestic proceedings. I hope that that gives my noble friend the answer he was seeking.