 Andrew is presently chairman of the bar of England and Wales and he is a Bencher of the Middle Temple. He was leader of the Western Circuit. He is also served as a recorder of the Crown Court and he is a very distinguished lawyer with enormous experience and we look forward to hearing today what he's got to say on these issues. One of the great privileges of my current position has been that in the context of the Brexit earthquake I've been able to watch it reasonably close quarters how politicians, civil servants, bureaucrats or bureaucrats as of course they're called by the tabloids engage with each other in what a sympathiser might describe as a conversation or negotiations or dialogue but sometimes I think it may be more accurately likened to one of those pieces of contemporary dance between combatants where the method seems by turns dramatic, tortuous, physically painful and ultimately incoherent and as with contemporary dance is sometimes difficult to work out how much of it has been choreographied and how much of it has been left to improvisation but just try to take a bird's-eye view for the moment once the referendum result had sent the UK down an unexpected side stream of a sedate river that we had hitherto been more or less gently floating along together with our EU neighbours once that vessel had begun to travel down rapid but unchartered waters the language of those with an eye to history began to emerge and so it is that the piece of legislation that's going to do the actual deed was to be known aptly enough as the great repeal bill but ambitions since became a little more modest because it was next referred to simply as the repeal bill and when it actually emerged it is as you know called the EU withdrawal bill the great repeal conjures up bringing of church bells on exit day whereas the EU withdrawal bill seems more subdued more more tail between the legs but but let me be more serious because what after all is in the name just a few thoughts about the bill itself because I think until one understands that other things are less easy to understand the essential mechanism of clause one is this the European Communities Act 1972 is repealed on exit day clauses two and three save all EU derived domestic legislation which will continue to have effect unless or until it is repealed and the same status is given to all direct EU legislation and regulations but not to any EU directives so the bar council of England and Wales body I currently lead whilst maintaining neutrality on the actual merits or do you merits of exiting the union is concerned as I hope you would expect us to be about citizens rights and our abilities to challenge decision-making and we have three principal concerns first the bill removes the opportunity for UK citizens to challenge EU law which is thus brought into English law and so it amounts to a reduction in the rights currently enjoyed by UK citizens and will afford them less protection against the power of the state and to borrow from the political language of the brexit campaign some rights are not so much being brought home as abolished clause three which says EU legislation is to be incorporated is subject to a particular provision in a schedule one paragraph one which expressly prevents the UK court after exit day for making any decision about the validity of those instruments so a pre exit EU instrument that interferes say with data privacy if it's found invalid in EU for incompatibility with article 16 of the TFEU for example that defective instrument will continue to apply in the UK as a result of clause three and UK citizens will be unable to use domestic courts to challenge it so as I say on the face of it the bill reduces the rights of UK and of course non UK EU citizens and their protection against the power of the state secondly ministers are given an alarming amount of power clause seven enables them to make regulations to quote prevent remedy or mitigate any deficiency in retained EU law and that includes an open ended power to make quote any provision that could be made by an active parliament and this so called Henry the eighth power to repeal or amend legislation relates to whole tracks of the statute book not just to those acts that implement the EU legislation. Thirdly drawing our judges into politics clause six is unsatisfactory because it risks politicisation of the judiciary if it's not more tightly constrained it presently reads a court or tribune will need not have regard to anything done on or off to exit day by the European courts but it may do if it considers it appropriate to do so. Lord Newberger our outgoing president of the Supreme Court and our recently retired Lord Chief Justice are joining the call on the government to state its position more explicitly as Lord Newberger put it if the government doesn't express clearly what the judges should do about the decisions of the ECJ after Brexit then the judges will simply have to do their best but to blame the judges for making the law when parliament has failed to do so would be unfair and as drafted the bill leaves the government free subsequently to say well the judges are interpreting this in a way that is causing all the difficulty and parliament we say should think again it might for example reduce the dangerous ambiguity by instructing UK courts to take account of post Brexit ECJ decisions when they are relevant to the proceedings. That's language borrowed from the equivalent section of the Human Rights Act in relation to the Strasbourg Convention. So those are three aspects of the bill there are many others but the principal ones about which we are raising concerns. Where will it all end? Are we in safe hands and parliamentary committees and in the House of Lords as the bill continues its passage through Parliament but I mean everything in a sense hangs on the progress of that bill and you will know the politics are a little uncertain at present and predicting what will happen is difficult. There are amendments being tabled at committee stage and those amendments are fast and furious and the outcome still unclear. So look coming away from that bird's eye view. Hope it's useful just to look at a relatively small thing when viewed as a proportion of the whole but with so many other aspects caught up in our withdrawal by no means a small thing in terms of the potential consequences not just for the UK but for European neighbours for whom there are mirror implications for not getting it right and chosen the European arrest warrant as a way to try to illustrate the topic of course that's just one the warrant of a package of or a host of measures which promote security and cross border cooperation in law enforcement and I referred earlier to the Brexit dance the future of the warrant if I just call it that for short rather than the European arrest warrant the future of the warrant serves as a good example of that genre and just a few background notes as to the warrant because I suspect although most of you know what it is and why it matters it may still just be worth taking a few moments to sketch its value and to dwell on some figures so the warrant speeds up extradition process between EU member states it used to take a year plus to extradite someone before the warrant was introduced and of course those suspects with resources could spin it out for years and often frustrate the process altogether. Now the average across Europe is just 48 days a suspect must be handed over within a maximum of 90 days after arrest for a warrant to be valid the suspect must be accused and offence occurring a maximum penalty of at least a year or have received a sentence of at least four months critically there is no analysis of evidential sufficency. The warrant is a mutual cooperation instrument that's based on the principle of mutual recognition. This means that if one member state makes a decision to extradite an individual to face a trial or service sentence that that decision must be respected and applied throughout the European Union and the basis of the warrant is a EU framework decision made in June 2002 which superseded the previous extradition arrangements between member states as set out in the Council of Europe's 1957 Convention on Extradition. The framework decision was implemented in the UK by the Extradition Act of 2003 and it came into force on 1 January 2004. What are the statistics? The UK surrenders about a thousand individuals a year to other EU member states under a warrant. On average we issue about 200 warrants seeking extradition of individuals to the UK. Thinking about Ireland and digging down into those figures. Between the years 2010 and 15 in those years those warrants that we issued included so first of all just as it went across Europe 41 wanted for murder 61 for rape and three for terrorism. In relation to Ireland wanted by us from you an average of about 15 a year wanted by you from us three times as many about an average of 45 a year. The virtues of the warrant are speed, efficiency, cost all produced effectively by uniformity of process and by a lack of the investigation into evidential sufficiency and a deliberately tight timetable. Of course not everybody is happy with it. In particular sending own nationals to another country to face a trial raises strong feelings everywhere. It's captured I think best in a daily telegraph column which I happen to find 2012. British citizens have been extradited to countries such as Bulgaria and Romania whose legal systems cannot be described as fair or free from the taint of corruption. Britons have ended up serving long sentences in ghastly prisons after trials that would never have resulted in guilty verdicts in the UK. Indeed the allegations would never even have led to prosecutions. I don't know if any of that is right but you understand the sentiment and of course it's everywhere not just in the UK I'm sure it will be in places here. It's certainly very much the case that there is there are those feelings in other member states but whatever the misgivings of some and by comparison with what it replaced most of those charged with the responsibility of national security and with bringing offenders to justice have a sincere belief that the warrant has proved to be a vital tool. What about the politicians and their stance in the dance? In 2014 having secured an opt-out following parliamentary debate the UK elected to rejoin at 35 measures one of which was the warrant and 16 Conservative MPs voted against one of them was David Davis and of course he's our Minister for Exiting the EU. At the time the then Home Secretary now our Prime Minister said since the Lisbon Treaty came into effect the UK has signed up to 19 new justice and home affairs measures accepting the jurisdiction of the CJU over them. We face the same choice today whether to accept the jurisdiction of the European Court over the small package of pre-Lisbon measures that we wish to remain part of so that our law enforcement agencies can continue to use those powers to fight crime and keep us safe or reject those measures and accept the risk to public protection that that involves. We must act in the national interest to keep the British public safe. Well the national interest of course hasn't changed but the politics have. In a pre referendum speech delivered in April of 2016 still then Home Secretary she noted that the warrant was one of the measures that quotes makes a positive difference in fighting crime and preventing terrorism and she made similarly supportive remarks before the Home Affairs Committee but in her speech to the Conservative Party Conference in October last year the Prime Minister made it clear that we the UK are to have no truck with the jurisdiction of the European Court of Justice. First we thought she might be muddling up Luxembourg with Strasbourg and as you know that happens but she wasn't and leaving the jurisdiction of the ECJ has become a so-called red line. But fondness for the warrant has not entirely dissipated since the referendum. As recently as March the new Home Secretary Amber Rudd said the warrant is an effective tool that is essential to the delivery of effective judgment on murderers, rapists and pedophiles and it is a priority for the government to ensure that we remain part of the agreement. So can the UK remain part of the warrant arrangement without submitting to the jurisdiction of the Court of Justice? How in other words do we square leaving with staying? Guy Verhost touched the European Parliament's chief Brexit negotiator said mid-August we seek a close relationship with the UK after Brexit particularly on justice and security matters. Criminals and terrorists must not be the beneficiaries of Brexit. However we are also determined that the legal order of the European Union is respected. The European arrest warrant is an instrument of European Union law and will therefore continue to be overseen by the European Court of Justice. The essence of the problem of leaving the Court of Justice captured by Professor Sir Francis Jacobs, Queen's Council, Advocate General at the European Court from 1988 to 2006, who said this, cannot be expected that disputes of the kind and issue that currently come before the CGEU can be resolved exclusively by UK courts. On the contrary, they are increasingly likely to be settled by transnational courts and tribunals and such means of settlement can no longer be sensibly regarded as an affront to UK sovereignty indeed in order to be effective such a system was bound, he said, to encroach on national sovereignty. On the 23rd of August in one of its recent, there's been a flurry of position papers from the government as you may know. On the 23rd of August the government reaffirmed that the UK will no longer be subject to direct jurisdiction of the CGEU and then on Sunday night whilst preparing for this talk, I heard that a new position paper in relation to this very subject was going to be issued yesterday. So I thought I'd cancelled my flight as it would all be terribly clear once we'd read the position paper and this talk would be unnecessary but I'm glad I didn't because although it was published yesterday and I'll come to it in a moment, it's still the position apparently that the European Court is to have no direct jurisdiction even in relation to justice or security matters. You have to read I think a little between the lines in relation to these position papers and I've just highlighted three or four passages. Let me just give them to you. One option for future EU-UK co-operation in this area would be to limit co-operation to those areas where a precedent for co-operation between the EU and third countries already exists. Whilst this would be one possible approach it would result in a limited patchwork of co-operation falling well short of current capabilities. Next passage I highlight. Both on trade and on the Schengen Association agreements there are sorry saw that again both on trade and on the Schengen Association agreements there are examples of the EU's relationship being based on overarching legal frameworks that support close and dynamic co-operation with third countries. Neither of these arrangements involved direct jurisdiction of the Court of Justice of the European Union in those third countries. The UK sees a strong case for building on those models to develop a strategic agreement that provides a comprehensive framework for future security, law enforcement, criminal justice co-operation between the UK and the EU. This would be a treaty between the UK and the EU providing a legal basis for continued co-operation between the UK and the EU in this vital area and could include provisions on scope and objectives, the obligations for each side and what mechanisms should apply to resolve disputes. The UK believes the right approach is to explore and design this new model with the EU as part of wider discussions on the deep and special partnership and then last sorry penultimate quote in doing so the ambition should be to construct a model that a number of bullet points which I think are aspirational and not very helpful but the last bullet point provides for dispute resolution over for example interpretation or application of the agreement. The UK will no longer be subjected to direct jurisdiction of the CJEU meaning consideration will need to be given to dispute resolution as part of the new relationship. A little later in particular it will be important to ensure that the new relationship with the EU ensures ongoing effective co-operation between Northern Ireland and the Republic of Ireland. Aspirations aside what is the blunt reality once the UK has withdrawn from the EU and the framework decision ceases to apply there seem to me to be three alternative options for future extradition arrangements between the UK and member states. The first go back to relying on the European Convention on extradition of 1957. The second and that's the aspiration in the statement I've just read conclude an agreement with the EU 27 on block as one treaty of some sort or other. Thirdly conclude bilateral agreements with each EU member state option one the 57 convention for key problems it seems to me. First of all the fact that many member states have repealed domestic legislation underpinning the convention since the establishment of the warrant system. Secondly there was as you may recall an exemption permitting the refusal of one's own nationals. Thirdly the increased cost and fourthly the potential for delays. If we're not able to fall back on the convention what sort of agreement could be reached with the EU 27? Will some form of arbitration do it as posited by some? The problem of course with arbitration is it's not transparent and there may be difficulties within enforcement and arbitration doesn't give rise to a body of case law. If you need to enforce criminal judgments the only dispute mechanism I suggest that you can really have is a court. And we're talking of course let's remember about reviewing decisions affecting the liberty of the individual and perhaps the Francis takes correct understandably takes the view that the UK government's use of the language of arbitration is quote totally inappropriate as a concept in the context of formal reviews of decisions made pursu into the warrant. What about the EFT-a court? I appreciate there are in this room experts on that subject but you will know that the EFT-a court operates in parallel to the court of justice of the European Union. The EFT-a court has jurisdiction with regard to EFT-a state's party to the EEA agreement, Iceland, Dickensdine and Norway. The A differences at the CGEU's opinions are binding on domestic courts in EU member states while those of the EFT-a court are only advisory. The EFT-a court consists of three judges, one nominated by each of the EFT-a states party to the EEA agreement and of course it also sits in Luxembourg. Now to those who say that there must be some doubt as to whether the EU 27 will be willing to agree with this arrangement for the warrant. I suppose it might be said that the EFT-a model does demonstrate that the EU is prepared to trust foreign judges enforcing a form of EU law in their own lands. But it should be noted that at present of course the EFT-a model only applies to internal market related disputes. Its jurisdiction was not expanded to cover the Norway and Iceland agreement, which I'm just about to come and of course it could have been. The government have never as far as I know given this option serious consideration if they have done not publicly and let's face it an EFT-a court would remain in the eyes of true Brexiteers at least a foreign court. What about the Iceland option? What is it? It's an agreement similar to the European arrest warrant with a uniform procedure, a simplified procedure. It took 13 years to negotiate. It does include two discretionary bars on extradition, an option for all parties to refuse to extradite their own nationals and also a political offence exception. But other than that you know word for word if you're dealing with a nitty gritty the wording on the form is identical to the European arrest warrant form so it has that strength of similarity of procedure. Would it take 13 years to negotiate a bilateral agreement of this sort like Norway and Iceland did? Probably not because we already use the European arrest warrant and we have the Norway Iceland modelled to hand and who wants a third model when uniformity of process is fundamental to success of the concept ideally we don't want three varieties. As to how the Norway Iceland model operates two things are of note article 36 of it which says any dispute between either Iceland or Norway and EU member states concerning interpretation or the application of this agreement may be referred by a party to the dispute to a meeting of representatives of the governments of the respective governments with a review to settlement within six months as form of dispute resolution. What about the European court in the Norway Iceland option? How does its decisions affect the agreement and what is their status in Norway and Iceland? Article 37, the contracting parties shall keep under constant review the development of the case law of the CGEU and that of the competent courts of Iceland and Norway and to this end there should be a mechanism set up to ensure regular mutual transmission of such case law. The ultimate objective is to arrive at a uniform application and interpretation as is possible for the provisions of this agreement. It's pragmatic, it sounds European in philosophy, a common lawyer like me struggles with the inherent lack of certainty but given what's at stake let's get over that. Why not then the Norway Iceland model? Well first the UK is in a different position to Norway and Iceland as it's not a member of Schengen as you know and when thinking of the free movement of people is there an interrelation? One of the justifications for the European arrest warrant system is the need for an integrated approach to judicial cooperation in the context of free movement of people and it follows the extent to which it's considered necessary or desirable to be part of such a system may depend on the extent to which any post Brexit settlement involves the acceptance of the free movement principle. So the House of Lords EU committee put it this way even if something like this can be achieved quotes it is conceivable that the EU 27 may not be willing to waive the right to refuse to extradite their own nationals outside the framework of the European arrest warrant and without the concept of EU citizenship that underpins it. Thirdly bilateral agreements if the block negotiations with EU 27 fail third option to negotiate separate bilateral agreements with each EU member state has is permitted under the extradition convention and of course there may be mutual advantages which encourage us to enter into bespoke arrangements with certain countries with which we have a close relationship and most obviously Ireland or from whom we receive a very high number of extradition requests and we receive an extraordinary large number of extradition requests from Poland. We have a population of about a million Poles in the UK but you know we have a deadline. Two years is up in March 2019 and negotiating 27 bilateral agreements is akin to impossible. What is the government actually doing? Of course I'm not from the government and I don't know but emerging as little more than gossip but in the newspapers is a proposal. I gather for a new ad hoc legal commission involving a Supreme Court judge, an ECJ judge and one from a third neutral country to rule on each extradition in some way. It's newspaper language. I don't understand it very much. You will know that the Labour Party in its manifesto gave a commitment to retain membership of the various agencies that deal with cross-border security and expressly indicate is a desire to continue the European arrest warrant arrangements. What is going to happen if nothing is sorted out or there are the very least no satisfactory transitional arrangements? We speak of a cliff edge and it's not a bad idea to do so because it concentrates minds but when thinking of cliffs, don't think of them only as depicted by our white cliffs of Dover because every EU state that benefits from cooperation and extradition is also facing its own cliff edge in relation to extradition arrangements with the UK and for some countries you don't place great store on that. It may be relatively unimportant but for some and perhaps Ireland is one the cliff is of notable proportions. To balance the imagery though with something less vivid I think it's important to concede that it's possible to overstate the extent of the problem. If we're being thoroughly pragmatic for a moment you might ask well would it really matter if we all continue to follow something akin to the warrant but don't submit in the UK to the jurisdiction of the European Court after all if you in Ireland want an alleged murderer back here to face trial are you going to fuss if the ECJ doesn't have jurisdiction in the UK if we're willing to play ball under the rules and hand them over as we've done for the last decade or more? It's more difficult of course when you look at it the other way around but it's perhaps worth remembering that before we elected to opt in in 2014 there had been a period of some years when the warrant was operating when the CJEU did not have express jurisdiction in relation to extradition and the domestic courts were perfectly able to develop case law without there being any significant divergence and it may be that one overstates the risk of divergence hereafter. Trouble is of course that once we've left the EU we can imagine the point being taken pretty quickly given the change of the status of the citizens in question and I may be wrong but I think it may have already happened that the point has been taken in your own jurisdiction by some of your creative lawyers. We could perhaps approach this in a pragmatic less purist way we have a warrant everyone's got used to it let's not sweat about jurisdiction of the ultimate court until we have to. Trouble is though that even though there may be no substantial difference in the fairness of the process faced by those extradited between us the politicization of the subject caused by the politics surrounding brexit has rendered extradition between the UK and EU member states once more possibly a stage upon which entirely wrongly in my view politicians may again want to play a part instead of allowing respect between judicial authorities to prevail in this area which is an area after all that's about the delivery of justice all of which takes me back to the EU withdrawal bill clause six one after exit day a court or tribunal need not have regard to anything said or done by the european court another EU entity or the EU but may do so if it considers it appropriate to do so if that wording remains perhaps the courts our courts the UK courts will consider it always appropriate to have significant regard to decisions of the european court in relation to the european arrest warrant given that it is axiomatic that the transaction is with an EU state subject to the jurisdiction of the european court so concluding seems to me that every serious minded person seems to agree that we should not be playing politics with cross border security and justice but regrettably our politics is at play if not an agreement on this topic could already have been separated out and provisionally at least sorted the politics in the UK include the fact that those that currently lead us have determined that the result of the referendum vote requires them to leave sorry to give the european court of justice no role in our domestic future the politics of the EU 27 might take on it is a sense that the UK must not be seen to have its cake and eat it but when something very important is at stake we need of course not mere politicians but statesmen and women and those who can rise above the politics and the warrant and related issues concerning cross border security and justice presents an opportunity for leaders of that caliber and i suggest their time has surely come