Having experienced the entire process of leaving the EU since the Maastricht rebellion, through to the passing of the sovereignty clause, Section 38 of the Withdrawal Agreement Act 2020, including the result of the referendum itself, I am thoroughly aware that there must be no ECJ jurisdiction after 31 December 2020.
The Government is in the process of negotiations, but what is clear now is that the European Council have now capitulated on any extension of the transition period beyond that date. Furthermore, the Government inserted that prohibition in the Withdrawal Agreement Act itself.
Boris Johnson made it abundantly clear on television after the video conference which he had with Charles Michel, Ursula von der Leyen, David Sassoli and Michel Barnier on 15 June that he would have no truck with ECJ jurisdiction.
This follows what is clearly set out in the Government's Command Paper on the future relationship negotiations published in February. It states in paragraph 5 "whatever happens, the Government will not negotiate any arrangements in which the UK does not have control of its own laws and political life. That means that we will not agree to any of obligations for our laws to be aligned with the EU's, or for the EU's institutions, including the Court of Justice to have any jurisdiction in the UK". Note: the words "whatever happens"… For those of us who have experienced the entire history of leaving the EU, from the most difficult and obstacle-ridden circumstances of the early 1990s and the collusion in favour of European integration and European government between the main political parties, which has now culminated after fierce political, constitutional and parliamentary struggle, we have now left the EU on 31 January this year and the transition period does end on 31 December 2020.
On the subject of the possible continuation of the European Arrest Warrant after transition, which some fear and which I have opposed relentlessly for years, I note that any cooperation regarding law enforcement and criminal judicial issues, including extradition, is conditional. The European Convention of Human Rights is not the same as the Charter of Fundamental Rights, which has been expressly repealed under the Withdrawal Agreement Act 2020. Therefore, the ECJ does not have jurisdiction in such matters. The provisions in the field of extradition which are being negotiated bears a significant resemblance to the agreement between the EU with Iceland and Norway, which is a proposed but not yet concluded dispute settlement arrangement aiming at a mutually agreed solution. If it is impossible to arrive at such a mutually agreed solution, the UK or the EU has a right of termination or suspension of part of any such agreement within three months.
There is no role for or mention of the ECJ in the UK draft legal text. Therefore, as matters now stand in the statements already made both in the Command Paper and in the Prime Minister's own words, including the UK's draft legal text, excludes the ECJ.
The Iceland / Norway agreement provides a precedent without oversight by the European Court or European Commission. The Extradition (Provisional Arrest) Bill, which had its Second Reading in the House of Commons on 22 June, amends the Extradition Act 2003, which implements the European Arrest Warrant in a way that addresses an existing loophole where the police become aware of a person wanted by a non-EU territories, usually through Interpol, but cannot arrest that person without obtaining a warrant from the court. It is clear that this loophole provides an escape route for a wanted person to abscond or offend before the police are able to detain them. The Bill only applies to extradition requests from certain non-EU countries, namely Australia, Canada, Lichtenstein, New Zealand, Switzerland and the USA, in whom the UK has confidence as extradition partners in their criminal justice systems and in their use of extradition. These non- EU countries can be extended to EU countries when we leave the EU and have no continuing ECJ jurisdiction.
It is therefore apparent that the European Court will not be used in such circumstances in the future, which rules out the European Arrest Warrant. However, the arrangements for extradition are catered for on the basis of a high level of confidence in the countries mentioned above and the negotiations are continuing. The Government have made clear that the Bill is not an attempt to bring in the legal jurisdiction of the European Arrest Warrant. The issues are still in Parliament but the Command Paper and the Prime Minister's statement on the ECJ speak for themselves.
As to the European Convention of Human Rights, I have opposed this for decades and, for example, distinguished former UK judges have criticised the manner in which it arrives at its conclusions. I opposed the Human Rights Act in 1998 and continue to regard it as unacceptable, but always bearing in mind that it is not permanently entrenched and can be repealed. It does not surprise me that individual cases give rise to unacceptable outcomes and will have to be addressed.
The current negotiations deal specifically with the question of sovereignty and the ECJ under the European Communities Act 1972, which is part of the binding legal framework which has subjugated the UK to the EU law and which differs from the European Convention of Human Rights.
