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House of Lords Hansard
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Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019
18 March 2019
Volume 796

Motion to Approve

Moved by

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That the draft Regulations laid before the House on 15 January be approved.

Relevant documents: 17th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A). Considered in Grand Committee on 12 March.

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My Lords, the instrument that the House is invited to approve today was debated in Grand Committee last Tuesday. The noble Lord, Lord Paddick, was unable to take part, but we had a good and thorough debate, so I shall keep my remarks brief and confine them to the points raised by him in his amendment.

However, it is perhaps worth underlining what we want to achieve in regard to law enforcement and security as we exit the EU. We all want to protect the operational capabilities that help the police, law enforcement and prosecutors do their jobs in protecting the public and bringing criminals to justice. The Government’s position remains that the best way to do that is to exit with a deal. However, it is right and necessary that we prepare for all eventualities, including the no-deal scenario that most of us do not want to see. The instrument before the House forms part of the programme of secondary legislation that the Government have been bringing forward to ensure that there is an effectively functioning statute book on exit day. It addresses deficiencies in our domestic statute book that would arise if we leave the EU without a deal, focusing in particular on deficiencies in the area of security, law enforcement, criminal justice and some security-related regulatory systems. It is important to be clear that the regulations play no part in bringing about the UK’s withdrawal from the EU. Rather, the purpose of the instrument is to make amendments to the UK’s domestic statute book, including retained EU legislation, to reflect that new situation.

Having said a few words about what the instrument does, I should also be clear about what it does not set out to do. For the most part, the instrument is not a vehicle for implementing the Government’s policy response to a no-deal exit. Our contingency arrangements for co-operation with EU partners on security, law enforcement and criminal justice involve making more use of Interpol, Council of Europe conventions and bilateral channels. These are existing alternative channels, outside the EU, that are already in use between the UK and many other non-EU countries. Accordingly, they do not require domestic legislation to set up. That is why those contingency arrangements are largely outside the scope of what these regulations set out to do. Even the Council of Europe Convention on Extradition, in respect of which this instrument links into our contingency arrangements, is already in place and in day-to-day use by the UK with non-EU countries. I beg to move.

Amendment to the Motion

Moved by

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At the end insert “but that this House regrets that the draft Regulations cover policy areas that are individually of such significant concern to the House that they should not be considered together, and that Her Majesty’s Government have provided insufficient information in relation to the statutory instrument’s policy objectives and intended implementation”.

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My Lords, I start by apologising to the House that I was unable to take part in the debate in Grand Committee last week. Sad to say, I did stream the proceedings live to my sickbed, so I followed proceedings contemporaneously. The words of my amendment are not my own but those of the Secondary Legislation Scrutiny Committee’s Sub-Committee A. I intend, first, to give an example of how important the areas are that are covered by this SI; secondly, to question the reassurances given by the Minister in Grand Committee on the area of extradition; thirdly, to examine the impact of losing access to crucial EU databases on securing our borders and how that jeopardises the Government’s immigration strategy post Brexit; and finally, to highlight the muddled thinking of the Government that resulted in their putting too many important legislative changes into one SI.

The regret is about the way the Government are showing contempt for proper scrutiny of this statutory instrument by the House, by accident or design, not about the content of the instrument itself. As the Minister acknowledged in Grand Committee on 12 March at col. GC 195, these regulations which cover some of the most important areas of leaving the EU—law enforcement, security and judicial co-operation—have been “under-debated”. Yet despite this, the Government cram every necessary legislative change in these important areas into one statutory instrument. Not only does this make the SI impenetrable to mere mortals, even the Secondary Legislation Scrutiny Committee’s Sub-Committee A concluded in its 17th report, published on 20 February, at paragraph 5:

“We were not persuaded that so wide-ranging an instrument, covering policy areas that are individually of significant concern to the House, can be justified. Effective scrutiny is inhibited by the wide range of issues included”.

Just to emphasise the importance of these areas and the lack of information being provided by the Government, I will talk briefly about the European arrest warrant, in which the UK will no longer be able to participate after Brexit. The then Director of Public Prosecutions described the EAW to the House of Lords European Union Select Committee on 2 November 2016 as,

“three times faster and four times less expensive”,

than alternative arrangements. It had enabled the extradition of more than 12,000 individuals from the UK to the EU in nine years.

This SI, to quote the Minister again,

“will ensure that the UK has the correct legal underpinning to operate the no-deal contingency arrangement for extradition—the Council of Europe Convention on Extradition 1957—with EU member states”.—[Official Report, 12/3/19; col. GC 186.]

That contingency arrangement operates through diplomatic channels, so extradition will require political approval in the extraditing country. It does not impose the sort of strict time limits of the European arrest warrant and does not require a country to extradite its own citizens. Indeed, Germany made a change to its constitution to allow the extradition of its own citizens under the European arrest warrant. German criminals at least will know that they can commit crimes in the UK and flee to Germany, safe in the knowledge that they cannot be extradited to the UK after Brexit.

In Grand Committee the Minister was asked by my noble friend Lady Ludford specifically how many EU states need to make legislative changes, as we are doing here, to operate the 1957 convention with the UK. The Minister, perhaps unaware of the DPP’s evidence to the House of Lords committee to which I have referred, replied:

“All EU member states operate the European Convention on Extradition with Council of Europe countries that are not EU member states”.—[Official Report, 12/3/19; col. GC 196.]

To be fair to the Minister, this did not answer the question. The former DPP said that many member states have repealed domestic legislation underpinning the convention, which could limit their ability to extradite to the UK. Perhaps the Minister could tell the House what further information she has that was not available to the DPP when she gave her evidence to the House of Lords committee.

We will also lose access to the Schengen Information System II and the European Criminal Records Information System, which currently allow the police and Border Force staff instantly to check whether the individual before them has a criminal record in any EU country, is wanted for a criminal offence or is suspected of terrorism anywhere in the EU. In March 2016 alone, 809 people were flagged on SIS II to the UK, including 192 who were wanted, 96 who were reported missing and 358 who were believed to be involved in serious organised crime. That was in just one month.

It is interesting to note that one of the main planks of the Brexit argument is that we will be able to take back control of our borders. As we will discuss later today, in practice EU citizens will be given automatic entry to the UK for three months. While the UK after Brexit will be able to exclude those who have spent more than 12 months in prison for a criminal offence, Border Force will no longer have access to the databases that tell it whether those entering the UK have spent 12 months or more in prison for a criminal offence in any EU member state.

This instrument covers many very important areas, so why have the Government taken an all-in-one approach? The Government explain:

“The changes made by the regulations are in linked policy areas and cover three subject areas … The three areas are: security, law enforcement and judicial co-operation in criminal matters currently underpinned by EU legislation”.

I note that security, law enforcement and judicial co-operation are three areas, but the Government count them as one. The Minister went on to describe the other two of the five as,

“security-related EU regulatory systems for which the Home Office is responsible; and domestic legislation affecting the police and the investigatory powers made deficient by EU exit”.

She went on to say that in regard to the first policy area, which is,

“security, law enforcement and judicial co-operation in criminal matters, the regulations address deficiencies in connection with EU measures with a justice and home affairs, or JHA, legal base”—

even though home affairs and justice are covered by different Ministers of State and departments. She continued:

“Reflecting their shared underlying legal base, these measures all relate in some way to law enforcement and security in their subject matter, and in many cases interact at an operational level”.

If we include all measures that,

“relate in some way to law enforcement and security”,

we would be ruling even more policy areas into this SI. The Minister went on:

“For example, as the noble Lord, Lord Kennedy, mentioned, SIS II circulates European arrest warrant alerts. The regulatory regimes, while not having a JHA legal base, have a similar underlying purpose”.

Having said that these matters are grouped together because they have a JHA legal base, the example the Minister then chooses to illustrate the rationale for the Government’s approach does not have a JHA legal base.

I will not go on. Suffice it to say that when the Minister said that,

“we considered that combining them in a single instrument would assist scrutiny”,—[Official Report, 12/3/19; col. GC 193.]

she was describing the legislative equivalent of an own goal. If the Secondary Legislation Scrutiny Committee can make neither head nor tail of this, how earth are we expected to? This is not an acceptable way to deal with secondary legislation. I beg to move.

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My Lords, I too was unable to attend the debate on this instrument in Grand Committee but it seems that this is an opportunity to make some general remarks about its purposes. Frankly, I can think of no area of importance where our impending departure from the European Union needs to be less of an obstruction to our national security than the exchange of intelligence, as regards both policy and administration. These are all matters of mutual interest, not only between the United Kingdom and other members of the European Union but between the United Kingdom and other nations of the world. I therefore believe that what is needed is some sort of White Paper from Britain to take advantage of our departure from the EU to set out fresh targets of practical achievement—better security, better exchange of intelligence and better safeguarding of rights. However, we have seen many recent examples of where the present system simply does not work; the noble Lord, Lord Paddick, gave some but there are others. I suggest in particular something I have been pursuing for many years in this House: the need for the United Kingdom passport agency to be aware of other passports held by British passport holders.

This is self-evident to most people, but the Government, or rather the Home Office, have objected again and again to implementing it. Current regulations require that if you apply for a British passport, you must declare what other passports you hold. Not only is that information not retained—I have been told that by Home Office officials—but it is certainly not available, as it should be, to those charged with administering the security of our borders.

What should happen, of course, is that the electronic screening of the passport of anyone who passes through border control, into or out of the United Kingdom, should reveal what other passports they hold. In most cases, that would mean no further action, but there could be cases where it would be crucial to improving our national security. There has been a lacuna in creative thinking on this whole subject by the British Government, and the opportunity for us now to get a grip on it is provided by our impending departure from the EU.

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My Lords, my noble friend Lord Paddick comprehensively covered a point I raised in Grand Committee. He is quite right to say that I fear the Minister did not answer my question, which was: do the EU 27 countries have to change domestic legislation in the same way as us as we shuffle between Parts 1 and 2 of the Extradition Act to operate Council of Europe Convention 57? Subject to what the DPP said, we know that they have the Council of Europe convention in their domestic legislation to operate with non-EU countries. We need to know whether that will be available to operate with us if we are no longer in the EAW.

Interestingly, I discovered that the noble Lord, Lord Jay of Ewelme, chairman of the EU Home Affairs Sub-Committee—on which I do not have the pleasure of sitting; I am on the Justice Sub-Committee—wrote to the right honourable Nick Hurd MP, Minister of State for Policing, last week on 13 March. The committee had held an evidence session on 27 February. One point was in response to an official I remember working with when I was an MEP but is now, I think, in the Home Office. The letter states that,

“we remain concerned by the extent to which the effectiveness of, as Ms Ellis put it, the ‘plumbing’ put in place by the UK to move cooperation to non-EU mechanisms is ‘dependent on the position of other member states’. Whatever the extent of the UK’s preparations, it is not at all clear that our European partners would be ready to cooperate with us on the basis of the alternative mechanisms the Government intends to rely upon in a ‘no deal’ scenario”.

I have not had the opportunity to catch up on all the evidence, but that letter is in the public domain; it is published on the committee’s website.

Our distinguished colleagues on the EU Home Affairs Sub-Committee are obviously well apprised of the issue, and the Minister’s colleague, the Policing Minister, will presumably have to reply within 10 days. We are interested in precisely the same point. It would cover issues such as extradition of own nationals and political exemptions as well as the basic plumbing, as it was put.

The letter of the noble Lord, Lord Jay, also said:

“We would also be grateful for further information on the UK’s current operation of the Council of Europe Convention on Extradition—which witnesses indicated would be the ‘fallback’ mechanism for future cooperation on extradition with EU countries—with countries such as Norway”.

To inform our knowledge of how this alternative plumbing mechanism would work, how is it working at the moment with Norway?

That is about extradition, but I would like to ask about human rights law. When I raised the issue of human rights in Grand Committee, the Minister said:

“As the White Paper and the political declaration make clear, the UK is committed to membership of the ECHR, and we will remain party to it after we have left the EU”.—[Official Report, 12/3/19; col. GC 196.]

Given my background in these issues and my 15 years in the European Parliament, I consider this very important. The human rights context in the UK will be very pertinent to the extent of closeness in security co-operation that we will be able to have if we are outside the EU. Unfortunately, the political declaration does not quite back up the Minister’s assertion. To the mystery of some of us—this came up in an EU Justice Sub-Committee evidence session last week in our current inquiry about human rights after Brexit—the draft political declaration says:

“The future relationship should incorporate the United Kingdom’s continued commitment to respect the framework of the European Convention on Human Rights”.

That had changed from the draft summary of a fortnight previously last November. We are all quite mystified as to why that change was made, but it could not have been an accident that it changed from the UK being committed to the European Convention on Human Rights to respecting the framework of the convention, which is a diluted commitment. We have had correspondence with the Government on this and they just say, “It means the same thing as a commitment to stay in the ECHR”—in which case, why was the wording changed? Perhaps the Minister can enlighten us.

I have two other questions. Apparently, we propose to keep data that we have acquired under these EU measures and the Government give assertions about how it will all be protected under the Data Protection Act 2018. Are the EU and our EU partners content that we should retain this data when we leave the EU? Do we have ownership that can continue without challenge? Has there been any consultation over the legality of retaining data that we have been able to access while we have been a member state? Perhaps we could get an assurance on that.

Lastly, no costs are monetised in the impact assessment. Assertions are made, particularly on extradition: every extradition will be more costly than it is now under the European arrest warrant. Everybody knows and accepts that. The Government say, “But we will not monetise it”. I keep hearing the argument that because these SIs do not deal with the policy of no deal in general, the Government will not tell us what the precise impact of each SI would be. So you get these series of SIs, but the goalposts are being moved all the time because the Government keep saying, “No, we don’t have to give you details of the impact of this one because it’s all wrapped up globally”. Where will we find out what the extra costs of extradition are? I am afraid that is a bit of wheeze and we are owed some calculations and estimates of the extra costs for all the justice agencies, including the Ministry of Justice, which will have to get involved. It does not at the moment because it can leave it all to the operational people—the judges, the DPP and so on. Some work must have been done, so we should be privileged with some information.

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My Lords, these matters were debated in Grand Committee on 12 March. I expressed then, as I do now, that I very much agree with the report of the Secondary Legislation Scrutiny Committee, Sub-Committee A. It expressed the concerns about the way this regulation has been brought forward. It is fair to say that it was quite damning of how the Government presented the regulations to both Houses of Parliament.

Recommendation after recommendation highlighted how inadequately information was presented to Members of both Houses. In Committee, I very much agreed with the comments of the noble Baroness, Lady Hamwee. I supported everything she said, except that if the measures came before the House, I would not vote to stop them coming into force. However, at the end of the day, we do not have a fatal Motion here. The regulations are badly drawn up, with little regard to the needs of either House. As I said, that point was made by the sub-committee but endorsed by everyone who spoke in Committee. I also concur with the comments of the noble Lord, Lord Paddick, from the Liberal Democrat Front Bench.

I have a few other points to make. I do not intend to go into them in detail because I made a lot of them in Committee. I am very concerned that we could lose access to the European arrest warrant and may have to go back to relying on the 1957 Council of Europe Convention on Extradition. That is a retrograde step; the only people who would welcome it are criminals—no one else. I am also concerned about the loss of access to databases. In Committee, I also mentioned the issue of the Schengen information system and Prüm. I do not recall whether I got an answer to my questions. What will be the situation there? Can the Minister comment on Europol and Eurojust? Again, I want to hear more than just, “We are working on it”. These issues are important and we want to know where we stand.

The report is damning, as I said. I hope that the department will learn a lesson from it. I do not think that committees put forward such suggestions lightly. We want proper scrutiny. We want to ask questions and put everything together in one place but it has not worked and I hope that we will not see anything else like it in future. I will leave it there.

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I thank noble Lords for their points, many of which were made the other day in Committee. It is important to be clear from the outset that the regulations play no part in bringing about the UK’s withdrawal from the EU, about which many comments were made. I just want to clear that up. Obviously, the consequences flowing from that include ceasing our ability to co-operate with EU member states through this suite of tools and measures.

As I said the other day, the instrument’s purpose is to make amendments to the UK’s domestic statute book, including retaining EU legislation to reflect the new situation. The changes we are making in the instrument are ones that we cannot and should not avoid in the event of a no-deal exit. The regulations do not contain significant policy choices. For that reason, as I have already said, we do not accept that the changes introduced by the instrument should be of concern to this House.

The noble Lord, Lord Paddick, suggests in his amendment that,

“Her Majesty’s Government have provided insufficient information in relation to the statutory instrument’s policy objectives and intended implementation”.

That point was made by the Secondary Legislation Scrutiny Committee, at whose request the Government produced a second, revised Explanatory Memorandum in addition to both the original one and the impact assessment published alongside the instrument.

The noble Lord, Lord Kennedy, has been consistent on the committee’s comments; he made the same point today as he did the other day. I took it on board the other day and I do so again today. As we made clear in writing to the committee, the original, longer Explanatory Memorandum was provided in good faith to provide the committee and other users of it with a thorough explanation of each provision in the instrument. We anticipated that the level of detail provided would be helpful to anyone with an interest in a specific part of the instrument. However, we took on board the committee’s view that we had not struck the right balance and that the Explanatory Memorandum was too long, and therefore provided the shorter one. The committee confirmed in its report that it considers the revised Explanatory Memorandum to be “more accessible” and “more user-friendly”.

All these documents, both Explanatory Memorandums and the impact assessment, attempt to isolate and describe the practical effect of the regulations themselves—what difference it makes if we do or do not legislate as proposed in these regulations—rather than the wider impact of EU arrangements in this area falling away as a consequence of a no-deal exit. But in publications, debates and Select Committee hearings we have provided and continue to provide information to Parliament about those wider impacts. Overall, the making of this instrument will provide legal and operational certainty for the public sector, including law enforcement and criminal justice partners across the UK, such as the NCA and our police and prosecution services.

I will address policy areas. I reiterate that the regulations cover three subject areas: security, law enforcement and judicial co-operation in criminal matters currently underpinned by EU legislation; security-related EU regulatory systems for which the Home Office is responsible; and domestic legislation affecting the police and affecting investigatory powers made deficient by EU exit.

On security, law enforcement and judicial co-operation in criminal matters, the noble Lord, Lord Paddick, pointed out that the regulations address deficiencies in connection with EU measures with a justice and home affairs legal base. Reflecting their shared underlying legal base, these measures all relate in some way to law enforcement and security in their subject matter, and in many cases interact with each other at an operational level. For example, the Schengen Information System, which the noble Lords, Lord Kennedy and Lord Paddick, referred to, circulates the European arrest warrant alerts. The regulatory regimes, while not having a JHA legal base, have a similar underlying purpose: to prevent, detect and prosecute criminal activity and to maintain security. Given that they are linked policy areas and that the changes being made are very similar across most parts of the instrument, we considered that combining them in a single instrument would assist scrutiny by providing as complete a picture as possible in one place. I accept the points made today by the noble Lord, Lord Paddick, and the other day and today by the noble Lord, Lord Kennedy.

The noble Lord, Lord Paddick, then went on to talk about contingency planning. Our contingency arrangements in this area are largely outside the scope of the specific changes introduced by these regulations. However, they are clearly and properly a matter of great interest to Members of this House. They have undergone detailed scrutiny by the EU Home Affairs Sub-Committee of the European Union Select Committee in this House and the Home Affairs Select Committee in the other place. As the Government have made clear in both Houses, the continued safety and security of both UK and EU citizens remains our top priority. That is why we are preparing to move our co-operation with EU member states in a no-deal scenario from EU channels to alternative, non-EU mechanisms. Broadly speaking, this would mean more use of Interpol, the replacement for Europol—the noble Lord, Lord Kennedy, asked about this—Council of Europe conventions and other forms of co-operation with European partners, such as bilateral channels. Our contingency plans are largely tried and tested mechanisms that we already use for co-operating with many non-EU countries. However, as we have made clear, they are not like-for-like replacements for EU tools and would result in a reduction of mutual capability in both the UK and the EU. For the most part, the legal framework for these contingency arrangements is already in place: the non-EU mechanisms we are moving to already exist and we already use them with other countries.

One thing that noble Lords brought up on contingency was extradition, which was brought up the other day. The regulations support implementation of the no-deal contingency in this area. They will ensure that in the event of a no-deal exit, we have the correct domestic legal underpinning to operate the no-deal contingency arrangements for extradition—the 1957 Council of Europe Convention on Extradition—with EU member states. To be clear, the amendments under the Extradition Act are not purely discretionary. Once we leave the EU and cease to be bound by the EAW regime, our rights and obligations towards EU member states under the 1957 convention will revive. Under international law, we will be under an obligation to be able to fulfil them and to equip ourselves to do so.

As I said the other day to the noble Baroness, Lady Hamwee, the convention is already in place and in use by the UK with other countries. The small difference is that these regulations will categorise EU member states for the purposes of the Extradition Act 2003 so that we can administer requests from EU member states under Part 2 of that Act rather than Part 1 as at present.

The noble Lord, Paddick, asked about own nationals escaping justice. Countries that refuse to extradite their own nationals generally have wider ranging extra-territorial jurisdiction to try their nationals for offences committed overseas. The European Convention on Extradition specifically provides a duty for contracting parties to submit the case to their authorities to consider prosecution if they refuse to extradite someone due to their nationality.

The point was made about member states being able to operate the European convention. All EU member states operate the Council of Europe Convention on Extradition with Council of Europe countries that are not EU member states. No member state that requires legislation to apply the convention has revoked or repealed the legislation. Some countries may need to make minor legislative changes—for example, to designate the UK as a Council of Europe country—just as we are doing to reverse these regulations. Other EU member states will revert to the European convention automatically because of the way their domestic law interacts with international law. I will not speak on behalf of other member states as to their systems, but we anticipate operating the EU Convention on Extradition with EU member states.

The noble Baroness, Lady Ludford, asked how the convention operates with countries such as Norway. We currently operate it with Norway and Switzerland, and we routinely turn round extradition cases in a matter of months—although I appreciate that, as we talked about the other day, it takes longer than under the European arrest warrant.

The noble Baroness asked also whether we are committed to the ECHR, because she seems to see different wording in the same documents at different times. As the White Paper and the political declaration make clear, the UK is committed to membership of the ECHR and we will remain party to it after we have left the EU. I add that this country has some of the strongest human rights legislation in the world, and I remain confident that we will stay world leaders in this. That is consistent with what I said in Grand Committee. I cannot shed further light on why the wording in the political declaration has changed, but I say to the noble Baroness that it does not reflect any change in the Government’s position. That remains as set out in the White Paper.

The noble Baroness asked about data protection rules. The SI confirms that we will adhere to the rules under which we receive the data, and I think the member states will welcome that.

On the noble Lord’s point about the contingency arrangements not being as good as the European arrest warrant, he will recall that I said in the debate the other day that I accept that there will be an increase in the cost of and time taken for extradition. I have been clear about that. The cost impact is not related to our leaving the European Union but to this statutory instrument.

I think I have answered all the questions. I thank all noble Lords, particularly the noble Lord, Lord Paddick, for again bringing this matter to my attention. I beg to move.

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My Lords, I am grateful for the support of my noble friend Lady Ludford and the noble Lord, Lord Kennedy of Southwark.

The Minister kept on about the regulations not containing any major policy areas. We have not said that they provide major policy changes—we accept what the Government say about that—but what we and the Secondary Legislation Scrutiny Committee are complaining about is that far too much legislation is contained within one statutory instrument. I specifically criticised what the Minister said in Grand Committee about the three policy areas and the common legal framework. In response to that criticism she simply repeated exactly what she said in Grand Committee.

I am grateful that the Minister admits that the contingency arrangements will result in a mutual reduction in capability of the UK and the EU, but it leaves an important question unanswered. I accept that she cannot speak for other individual EU states, but one of the purposes of the statutory instrument is to ensure that the alternative extradition arrangements under the 1957 convention can legally operate—that is, that the UK can extradite people to EU states or other signatories to the convention. However, we do not know whether EU states’ domestic legislation will allow them to extradite people to the UK.

As the Minister acknowledges, they may have to redesignate the UK as a Council of Europe member rather than as an EU member state in their domestic legislation in order to make the 1957 convention work. However, we still have no reassurance that the contingency arrangements the Government are relying on will work in practice. I accept that they are doing what they can on their side of the agreement, as it were, but we still do not know whether EU countries will be able to extradite people to the UK under the 1957 convention.

We are getting into the detail but the point is that it does not matter how long or short the Explanatory Memorandum is: if there is too much content in the statutory instrument itself, you will never get an Explanatory Memorandum that will assist the House because it will be either too superficial or too detailed to enable sufficient scrutiny. I believe the Government accept that and hopefully we will not face this situation in the future. On that basis, I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Motion agreed.