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.
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I also want to ask about Regulation 28. Article 11(1)(f) of the directive gives us a ground for non-execution by the country which executed the EIO where,
“there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter”.
We fought long and hard in the European Parliament to get those grounds for refusal in. Had they been in the European arrest warrant, we might have avoided some of the scandals which gave the EAW a bad name. One that Fair Trials International was deeply involved in concerned a constituent of mine when I was an MEP for London, the Andrei Simin case. It was a completely scandalous case where a young man had spent 18 months in appalling conditions in a top security jail in Athens before finally being released. It was a complete miscarriage of justice. I am afraid that those who did not like criminal co-operation measures jumped on that case in order to bash the EU over the head, as well as the idea of efficient extradition arrangements.
Regulation 28, which ostensibly transposes the directive, coyly does not actually spell out the human rights grounds for refusal; instead we have to refer to Schedule 4, which refers only to the grounds for refusal being incompatible with the European Convention on Human Rights within the meaning of the Human Rights Act. That of course is a non-EU measure, so there has been a complete wiping out of any reference to the charter because paragraph 1 of Article 6 of the Treaty on European Union states:
“The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights”.
The Minister may know of the charter because there has been some discussion of it during the passage of the Data Protection Bill, and I hope there will be more. It covers some grounds that are not in the convention and some provisions which are more modern and stronger than the European Convention on Human Rights. Unfortunately, there is a mood in some circles that is antipathetic to the European Charter of Fundamental Rights, which has always been much misunderstood. Put Europe and human rights together and many people start to jump up and down. However, the whole point of the charter is to protect people from the abuse of EU law by either EU institutions or member states. It is a protective measure for citizens. It is not about enlarging the powers and competence, but about restricting them in the name of EU law. A Home Office official giving evidence to the committee on the transferred prisoner issue referred to how such a person could raise a complaint under human rights. Surely the much fuller and stronger charter would be relevant and useful in, for instance, a case where there was any problem about the return of a transferred prisoner.
I will just correct myself—I am sorry, it has been a long week. It was the Symeou case. I ask Hansard to note that: Andrew Symeou was the person who suffered a miscarriage of justice under the European arrest warrant.
My last act as an MEP was to write a report calling for the reform of the European arrest warrant. One of the things I wanted was a clause similar to the one I have just invoked from the European investigation order. That was the first time the European Parliament had managed to get such a clause into an EU law enforcement measure. The failure of the Government to invoke the charter in this measure weakens the protection of people from any kind of abuse or misuse.
Finally, in answering the committee’s question about safeguards for the transfer of prisoners, the Home Office legal adviser explained that any recourse for problems in returning a transferred prisoner or a piece of evidence would be a matter for the European Court of Justice. That was in evidence to the committee in its recent report. Under the Government’s plans, if they happen, what happens after March 2019, or at least after a transition or implementation period, as the Government prefer to say? What alternative protection to court protection would replace the ECJ?