13.In our 4th Report, we drew these Regulations laid by the Home Office to the attention of the House on the ground of public policy interest. The instrument transposes Directive 2014/41/EU on the European Investigation Order (EIO) which standardises the procedure by which investigators in one Member State can request assistance from another with gathering evidence, investigating banking information, executing search warrants or taking evidence from witnesses. These Regulations standardise the format and the timetable for executing such requests.
14.In a letter to the responsible Minister, Nick Hurd MP, dated 19 July, the Committee raised questions about how “temporary transfers” of UK prisoners to another Member State to help with their investigations are to be handled (see Appendix 1 to our 4th Report). The Home Office failed to respond in time for the Committee’s subsequent meeting even though it was seven weeks after our initial request. We therefore invited Mr Hurd to attend the Committee to answer our concerns and to explain why our letter had received no response.
15.On 7 September, we finally received a response (see Appendix 2 to this report) which we were able to explore further at the evidence session. The full transcript is available on our webpage. We are grateful to the Minister for meeting the Committee at short notice and for the fulsome apology he made for the lamentable lapse by his department in failing to answer our queries in a timely manner.
16.A key concern was how the transfer of prisoners to give evidence is to be handled. We noted that, in contrast to an item of evidence, the standard form set out in the Directive does not allow for a date to be specified for the return of a prisoner. The Home Office letter explained that the practical arrangements, including the date on which the individual is to be returned, would be a matter for separate agreement between the Secretary of State and the issuing authority. In evidence the Minister stated that such transfers are rare and would all be authorised at Ministerial level.
17.The Committee also asked what the recourse would be if the receiving Member State failed to return a transferred prisoner or object in compliance with the EIO. Stephen Jones, a Home Office Legal Adviser, explained that that would that be a matter for the European Court of Justice. The Committee was however unclear about how far matters agreed separately between the Minister and the issuing authority would be justiciable. We also enquired what the recourse would be if a transferred prisoner then refused to return to the UK. Mr Jones explained that in such circumstances the prisoner could be forcibly returned.
18.Although the Directive was due to be transposed by 22 May 2017, the Explanatory Memorandum (EM) states that only nine other Member States have so far done so. The list of the participating states, given in Schedule 2 of the Regulations, is much longer, but the Home Office officials explained that, where there was any mismatch in the legislation, the request would be treated under the existing Mutual Legal Assistance (MLA) system.
19.The impact section of the EM states that the new system is expected to be more efficient and effective, so the Committee enquired whether the UK will revert to the less efficient MLA process once the UK leaves the European Union. The Minister replied 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.
20.The EM also explains that regulation 59 designates the EIO as an acceptable mechanism under the Investigatory Powers Act 2016 to allow the UK to provide information to other Member States on the interception of telecommunications. We asked what that would mean in practice. The Minister explained that the execution of any such request would require a warrant under the Regulation of Investigatory Powers Act 2000 and so would be reviewed by the courts on a case by case basis.
21.The Committee pointed out that the reason that they had so many questions was because the EM presented with this instrument assumed the reader had an extensive knowledge of both Directive 2014/41/EU and of the current UK system. It says for example: “The transposition … broadly aligns with existing procedures under the Crime (International Cooperation) Act 2003” (EM para 4); and “For outgoing requests, the policy position has been to align the process for making European Investigation Orders with existing ones as far as possible” (EM para 7.3). Our guidance makes clear that we expect an EM to assume the reader has no prior knowledge of the subject and a better-targeted EM could have avoided the need for some of our more basic questions.
22.The Minister described the failure to respond to the Committee’s letter as an isolated incident, and the circumstances around it were being considered at the highest level in the Home Office. The Committee however commented that we had been in this position before: Home Office Ministers in July 2015 and November 2016 had both given undertakings to improve the way that the Home Office’s statutory instruments are presented. This case not only raised questions about the Home Office’s mechanisms for dealing with Parliamentary requests and the priority that they are given but also about the quality of the EM and the clearance process.
23.The Committee stressed the need for the Home Office to establish a robust system for dealing with secondary legislation that would not be disrupted by a change of Minister. The Committee also made clear that although an increased volume of SIs was to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny.
3 , Session 2017–19 (HL Paper 17).
4 See: (available from 18 September 2017)
6 , Session 2015–16 (HL Paper 34).
7 , Session 2016–17 (HL Paper 75).