Data Retention and Investigatory Powers Bill

Debate between Lord Beith and James Brokenshire

Tuesday 15th July 2014 Commons Chamber

[Sir Alan Beith]

I have only remembered the case because my hon. Friend made the same point on a previous occasion. He has not been slow to point that case out. It is worth remembering—this may not be an approved thing to say—that the European Court is not always entirely consistent from one judgment to the next in the way that it applies its principles. It is important that we make it absolutely clear that we have a set of rules to ensure that the Government only require the retention of data when they have good purpose for doing so, and they only retain those kinds of data for which there is good purpose. Access to that data should be the subject of stringent conditions. In essence, that was what the European Court judgment was about, and the Government are meeting those conditions in the way that they have framed this legislation. That is not to say that they could not be open to challenge; perhaps they will be at some point. If that challenge is made, we should make it quite clear how important the distinction is between retention and access to data.

[James Brokenshire]

My right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) makes his point well. He talks about the retention of data, the security and assurance that is provided and the separate regime that relates to access to data and how that is reflected in the Bill’s provisions. Those provisions relate to the retaining of data, the safeguards that exist and some of the steps that we propose to take in relation to the Information Commissioner and the powers that he has to ensure that the data are retained securely. Then there is the separate regime that relates to the rights of different agencies, as set out in legislation, to gain access to that data. My right hon. Friend understands that concept and expressed it well.

My hon. Friend the Member for Stone (Sir William Cash) has highlighted the point about seeking to put beyond doubt that any legal challenge to this Bill should be considered by this Parliament and by the courts of the United Kingdom. Given the backdrop to this legislation—the data protection directive—and the approach that the European Court of Justice has taken in striking down the directive, I suppose I can understand why he is motivated to raise these issues in the Committee this evening. His comments raise broader points about the European Communities Act 1972. Our membership of the EU is wider than this Bill, and I respect the consistent way in which he has advanced those issues in the House.

We have considered carefully the existing law and legislation, and we have reflected on the European Court of Justice judgment in seeing what further measures can be put into effect to reduce the risk of challenge. That risk of challenge is most likely to heard within the UK courts than the European courts, as that is where challenge to the legislation might be flagged up in the first instance. Legislation is challenged in our courts from time to time. We believe that we have considered carefully the compliance of the Bill with the necessary regulatory requirements and remain confident that it meets those requirements.

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[James Brokenshire]

It is always difficult for Ministers—not just me; this has been the case with successive Governments—to comment on security and interception matters. Perhaps it will help the hon. Lady if I explain that what we are doing tonight is strengthening the position by underlining that the purpose has to be connected to national security, so it is not simply a question of economic well-being. The fact that we are putting that into legislation is an important development, as my hon. Friend the Member for Cambridge (Dr Huppert) has said.

I am sympathetic to the amendment in principle, as it seeks to provide clarity on the meaning of economic well-being in law. In many ways, I think it seeks to address some of the points raised by the hon. Member for North Ayrshire and Arran (Katy Clark). David Anderson may wish to reflect on it in his review of existing legislation and new legislation capabilities. Indeed, the privacy and civil liberties oversight board may also wish to address the issue of clarity. My simple point is that it needs to be done with care, given the other legislation I have flagged up and the broader context of the European convention on human rights.

[Sir Alan Beith]

Ought we and the hon. Member for North Ayrshire and Arran (Katy Clark) not to be celebrating the fact that for the first time in statute we are narrowing and specifying the circumstances in which economic well-being can be used as a justification? In other words, there has to be a national security element to it, not just a general feeling that some piece of information would be helpful for our economic well-being.

[James Brokenshire]

The right hon. Gentleman makes an important point. We are putting this provision front and centre in primary legislation. I hope that that is helpful in giving an assurance. National security is clearly a pretty high bar to reach, so framing the economic well-being argument in those terms should give an assurance that this is not something that would be relied upon lightly.

[James Brokenshire]

I am genuinely surprised that the hon. Lady has made her point in that way, because the Bill is about strengthening governance and oversight. Sitting alongside the Bill in relation to the retention of communications data, there will, in addition, be a statutory code of practice, while the Information Commissioner has the right to look at further audit and oversight of data retention, and the interception of communications commissioner can consider the use of the powers. That should give independent assurance to not just the hon. Lady but others who, reasonably and legitimately, want to know that such powers are not abused or expanded.

Our governance and oversight of communications data and interception have been strengthened and enhanced over the years, as the right hon. Member for Blackburn (Mr Straw) said on Second Reading. Equally, in relation to wanting to know that the tests are adhered to in relation to a Secretary of State effectively authorising a warrant for interception, the oversight of the interception of communications commissioner should provide a great deal of assurance.

I have always recognised that people should be able to uphold their industrial rights, including the right to form a trade union. I certainly do not in any way intend this debate to get into such an issue. Indeed, from his speech, the right hon. Member for Knowsley understands that the Bill’s provisions will tighten important rights in existing law. The point concerns whether there is a need for any further clarification. The comments of the hon. Member for North Ayrshire and Arran on the right hon. Gentleman’s amendment highlighted the tricky nature of trying to frame the Bill correctly and the potential for unintended consequences in that context.

[Sir Alan Beith]

May I just hammer the point home? Economic well-being would not be mentioned in the Bill were we not providing a greater safeguard than has ever existed before or under RIPA to ensure that the power is used only in relation to national security.

[James Brokenshire]

Absolutely. My right hon. Friend makes a very good comment for me to conclude on. Clause 3, which will provide such strengthening, has given us the opportunity to have a constructive and helpful debate.

Eurojust and the European Public Prosecutor’s Office

Debate between Lord Beith and James Brokenshire

Tuesday 29th October 2013 Commons Chamber

[James Brokenshire]

That is absolutely correct. The proposal for the creation of a European public prosecutor was framed specifically in those terms, and it would therefore require the endorsement of the public. I think that that is because, owing to the significant impact that it would have on the criminal justice system, the change would be so significant and fundamental—for reasons that I shall explain shortly—that it would require the backing not just not of Parliament but of the public.

The flaws in the EPPO proposal frame the context in which we must also consider the Eurojust proposal. The reforms proposed to Eurojust would involve deep connections with the EPPO, because the legal base for the EPPO requires it to be created “from Eurojust”. The Commission has sought to reflect that by creating operational, management and administrative links between the two bodies. That includes the exchange of data, including personal data; automatic cross-checking of data held on each body’s IT system; and Eurojust’s treating any request for support from the EPPO as if it had been received from a national competent authority.

At a time when we do not know what the EPPO will look like—given that the Commission must now review its proposal following the yellow card—let alone how the relationship between it and Eurojust might ultimately be defined in either text, it would be irresponsible in the extreme for us to risk binding ourselves to the European public prosecutor through our participation in the new Eurojust proposal. That would be a needless risk, given that we can review our place in Eurojust on its adoption.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Does the Minister not think it particularly unfortunate that when the functions performed by Eurojust are so necessary and so valuable, our ability to co-operate in that mechanism should be impaired by its becoming interlocked with a proposal with which we disagree?

[James Brokenshire]

That is an important point. As my right hon. Friend will know, the Government believe that the existing structure for Eurojust works well, and provides for effective practical co-operation in dealing with cross-border criminality. I shall develop that point further during my speech.

We also need to consider what the coalition programme says about preserving the integrity of our criminal justice system when deciding whether to opt into a new justice and home affairs proposal. The new Eurojust proposal would create mandatory powers for national members—powers that would allow it to require coercive measures at a national level. This House will already be aware that we have expressed concerns about any such powers being granted to Europol, the EU police agency, and our concerns hold true in this regard too. The proposed text goes further in explicitly requiring that those based in The Hague would be able to insist that national authorities take investigative measures in certain circumstances. That could, for example, include requiring them to issue a search warrant in the UK. That would cut across the division of responsibilities and separation of powers between police and prosecutors in England and Wales and Northern Ireland. It also fails to take into account the role of the independent judiciary in ensuring that certain coercive measures are granted to police in appropriate circumstances. Moreover, the proposals would conflict with the role of the Lord Advocate in Scotland, who has the sole, ultimate responsibility for determining investigative action in Scotland. That would be undermined by the proposed powers.

These are not matters of mere technicality. They are about fundamental aspects of our systems of law and would require wholesale and unjustified changes in order to be implemented. They would also conflict with the principle that operational decisions are best made as close to the operational level as possible, and would disrupt the operational independence of our law enforcement officials and prosecutors.

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[James Brokenshire]

Consultation has taken place with the Scottish Government and with the devolved Administration in Northern Ireland to keep them apprised of the examination of this measure and to highlight the significant issues at stake. From the outset, this Government have made clear their opposition to a European public prosecutor’s office, for the reasons I have enunciated this evening. I do not think that there is any surprise about the steps that have been taken or, because of the fundamental nature of the objections that I have highlighted, any fundamental objection to the proposals I am setting out and to our seeking the House’s authorisation in the manner we are tonight.

The only rationale for the Eurojust proposal seems to be that in order for an EPPO proposal to be brought forward the Commission had to take into account the treaty requirement for it to be established “from Eurojust”. Our law enforcement agencies and prosecutors already work closely with Eurojust as it currently operates; this House will be aware that we are part of the current agency. They value the support it provides, but they must retain discretion to make decisions at a national level. Indeed, the Government value the current Eurojust arrangements, which support judicial co-operation arrangements, helping to co-ordinate serious cross-border crime investigations and prosecutions. The case of the murders in Annecy in France in early September 2012 demonstrates the value of the current Eurojust arrangements. The UK and French national desks at Eurojust were instrumental in co-ordinating activity that led to a joint investigation team, and in clarifying the legal and procedural options in each country. That is why we are seeking to rejoin those arrangements as part of the 2014 opt-out decision.

We also take seriously our commitment to tackling fraud against the EU’s budget, but we believe that the most effective approach is prevention, not the creation of a new EU prosecutor. The UK has a zero-tolerance approach to all fraud, with robust management controls and payment systems in place that seek to prevent incidences of EU fraud. We have welcomed recently agreed changes to EU payment procedures and the reform of OLAF, the EU’s anti-fraud office, to improve the reporting systems and investigations. Once they are fully in place, they will support existing and future UK investigations and prosecutions.

The Commission’s approach with the proposals under consideration today is, therefore, unnecessary and, as I have set out, the content raises substantial concerns. That leads us to conclude that we should not participate in the new Eurojust proposal at the start of negotiations. We will instead undertake to play an active role in negotiations on both Eurojust and the EPPO, seeking amendments to the Eurojust regulation to meet our needs while engaging in discussions on the EPPO to protect against any attempt to bypass our non-participation through the back door of Eurojust. At the end of negotiations, we will thoroughly review the Eurojust final text and actively consider opting in—in consultation with Parliament—on the basis of that final assessment.

If the final text remained unacceptable and we were not able to participate in it, there would obviously be risks for our longer-term participation in Eurojust. Depending on what was finally agreed, an assessment would need to be made on whether we could remain within the old arrangements, subject to the outcome of the separate work on the 2014 decision, or whether the institutions would seek to eject us from Eurojust and we would need to seek alternate co-operation arrangements. Given that we do not expect to have sight of the final text much before the middle of 2015, it is hard to speculate on the final outcome, particularly in the light of the recent developments of the yellow card having been issued in relation to the measure for the EPPO. What I can reiterate is that we will work to get the text into a place where it is able to meet our significant concerns.

[Sir Alan Beith]

Over the considerable period in which the subject can be discussed, can we not seek allies among our fellow member states from those who recognise that different legal systems with different distributions of powers within them must be recognised by any EU-wide arrangement and that the text should therefore be changed?

[James Brokenshire]

I am grateful to my right hon. Friend for his contribution and I know that he was consistent on that point during our debate on subsidiarity last week. That view has been expressed by a large number of national Parliaments across the EU and it is now for the Commission to reflect on that message in the context of subsidiarity and on whether there are more appropriate ways, as we would argue, to deal with the issue of combating fraud in the EU.

As I have already said, Ireland has announced its intention not to exercise its opt-in to the new Eurojust proposal at the start of negotiations and, of course, Denmark cannot participate in post-Lisbon justice and home affairs measures such as this. All member states have a shared interest in ensuring that the final proposals work with all member states’ criminal justice systems, as my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) has said, rather than adopting the Commission’s unworkable one-size-fits-all approach.

Let me conclude by making clear our commitment to the current Eurojust arrangements and our intention to negotiate to protect those arrangements, and our view that as the proposal stands it poses too high a risk to our criminal justice systems to opt in at this stage. Today’s motion is in the national interest and I urge the House to support it.

European Public Prosecutor’s Office

Debate between Lord Beith and James Brokenshire

Tuesday 22nd October 2013 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

I beg to move,

That this House considers that the Draft Regulation on the establishment of a European Public Prosecutor’s Office (EPPO) (European Union Document No. 12558/13 and Addenda 1 and 2) does not comply with the principle of subsidiarity, for the reasons set out in the annex to Chapter One of the Fifteenth Report of the European Scrutiny Committee (HC 83-xv); and, in accordance with Article 6 of Protocol (No. 2) annexed to the EU Treaties on the application of the principle of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.

It is a pleasure, Madam Deputy Speaker, to see you in your place for this debate and to serve under your chairmanship this evening.

In July the European Commission published a proposal for the establishment of a European public prosecutor’s office—an EPPO. It is the Commission’s answer to a problem known as

“fraud against the Union’s financial interests”.

The EPPO proposal was published alongside a parallel legislative measure to reform the existing EU agency, Eurojust. These two proposals, the EPPO and Eurojust, will together be the subject of a separate debate in a week’s time as part of the so-called Lidington arrangements. I look forward to it, following my letters to the Chairs of the relevant Committees yesterday with the Government’s recommendation that the UK should not opt in to the new Eurojust proposal at the outset of negotiations, but should actively consider its position following a thorough review of the final agreed text.

The purpose of the debate is specifically for the House to decide whether the Commission’s EPPO proposal breaches the principle of subsidiarity, and that is what we should focus on tonight. I recognise that I am in an unusual position tonight in moving a motion on a course of action to be taken by the House, not the Government. I am aware, too, that the issue of who should move a motion in a subsidiarity debate such as this is a matter that the Procedure Committee has examined and on which the Government have responded. Although there may be differences of view over the procedure, I hope we can agree on the substance of the debate.

It is the shared view of both the European Scrutiny Committee and the Government that the EPPO proposal does indeed breach the principle of subsidiarity. If the whole House agrees, it can, under the EU treaties, send a democratic and political signal to the presidents of the European Commission, Council and Parliament in the form of a reasoned opinion to that effect. Moreover, in this case, if one quarter of the votes allocated to national Parliaments are cast, the so-called yellow card would be triggered meaning that the Commission would be obliged to review its proposal.

To update the House on how matters stand, both chambers of the Dutch Parliament, the Hungarian National Assembly and the Czech Senate have already taken this step, and others are actively considering it. This is a real opportunity for all national Parliaments to exercise, as democratic representatives, their views on what the Commission has proposed.

Before I say more about the reasoned opinion process, let me summarise the Government’s view on the EPPO proposal. The House will be aware of our long-standing position in the coalition agreement not to participate in the establishment of any EPPO, and the details of the proposal serve only to reinforce that position. While of course fraud must be tackled at all levels, including when it involves funds that form part of the EU budget, we do not agree that the establishment of a European public prosecutor’s office is the right approach.

The Commission’s proposal would establish a new supranational EU body with responsibility for criminal offences affecting the financial interests of the Union, as well as so-called ancillary offences within participating member states. The EPPO would exercise the function of a prosecutor within the courts of the participating member states for these offences and instruct their national authorities over the conduct of investigations.

This proposal is unnecessary, unsubstantiated and unwelcome. In the Government’s view, the best way to tackle EU fraud is through prevention. The UK has a zero-tolerance approach to fraud, with robust management controls and payment systems in place that seek to prevent incidences of EU fraud. Additionally we should continue efforts already happening to strengthen the current system.

For example, reforms to the European Anti-Fraud Office—OLAF—are currently being introduced to improve information exchange between OLAF and national authorities, and to improve OLAF’s own internal quality control. Indeed, a new regulation governing the work of OLAF entered into force only on 1 October 2013. These changes need time to be implemented fully before any further action is contemplated. Against that background, one of the many criticisms we have of the EPPO proposal is that the subsidiarity principle has not been met.

Without getting into too much technicality and legalese, the principle of subsidiarity means that decisions should be taken as closely as possible to the citizens whom they affect, and that the European Union should act only when outcomes can be better achieved at European Union level. It is important to note that subsidiarity is different from the principle of proportionality, under which any action taken by the European Union should not exceed what is necessary to achieve the stated objectives.

Under the protocol on the application of the principles of subsidiarity and proportionality in the treaties, the Commission must demonstrate that the objectives of the proposal cannot be sufficiently achieved at member state level—the first limb of the test—and then, that the objectives of the proposal can be better achieved at EU-level by reason of their scale and effects, which is the second limb and so-called EU added-value test. There is a requirement for the Commission to include a detailed statement in all legislative proposals on compliance with the principles of subsidiarity and proportionality, and some assessment of its financial impact. This detailed statement should be

“substantiated by qualitative and, wherever possible, quantitative indicators”.

In the Government’s view, the Commission has not presented a convincing case, and we do not believe that the principle of subsidiarity has been met. The Commission has not allowed time for current reforms to take effect, nor has it adequately considered options to strengthen the current system. For example, it has not considered enhanced incentives or other options for reform at regional or national level in any detail or in a rigorous manner, and it has not demonstrated what value an EPPO would add. We should recall that the relevant legal base in the treaties—article 86 of the treaty on the functioning of the European Union—says that an EPPO “may” be established. The treaties do not say it “shall” be created. The Commission has not, in our view, provided robust evidence to justify the creation of a supranational body with extensive and harmonised powers.

As I have said, under the treaties national Parliaments have the opportunity to put forward a reasoned opinion when they do not consider that a proposal complies with the principle of subsidiarity.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

As the Minister has just made a point about harmonised powers, may I remind him that one of the consequences of giving the EPPO the power to direct investigations would be to create a power for prosecutors that does not currently exist in England and Wales, although it does in Scotland? That perhaps illustrates the level of change that would be required to satisfy the idea of having a public prosecutor at European level.

[James Brokenshire]

I am grateful to my right hon. Friend, the Chair of the Select Committee on Justice, for highlighting the seriousness and significance of the European Commission’s proposal and why, in our view, it is not appropriate for the United Kingdom to opt in to the measure. As I have indicated, we made that abundantly clear in the coalition agreement in advance of the proposals being published. I am sure that we will examine in detail the impact of the Commission’s published measure in our debate next week on the in-principle decision as to whether the UK should opt in. That is the right avenue for exploring the detailed issues, whereas today is about subsidiarity. However, I take his points seriously.

Although there have been a number of reasoned opinions since the opportunity to provide them came into effect, there has only been one occasion on which the yellow card threshold has been reached. That was on a Commission proposal about the posting of workers and the right to take collective action, also known as Monti II. In that case, the Commission withdrew the proposal fully, even though it maintained that the principle of subsidiarity had been met. It conceded on the grounds that it was clear that there was no political will among member states and national Parliaments to take the proposal forward.

The Monti II case highlights the fact that the continuing use of the reasoned opinion procedure and resulting yellow cards represents a powerful political signal and an important way for national Parliaments to intervene directly in the EU’s functioning. Even when the yellow card threshold has not been met, the views of national Parliaments have been influential on a wide range of issues, as member states have used reasoned opinions to support their negotiating positions. They have often secured amendments on the salient issues on the back of them.

Achieving the threshold requires a great deal of co-ordination between national Parliaments. I am sure the European Scrutiny Committee and other interested parties in Parliament, in both this House and the other place, are making best use of their contacts with other national Parliaments in that regard. I look forward to hearing the debate and urge the House to support this important motion.

Justice and Security Bill [Lords]

Debate between Lord Beith and James Brokenshire

Thursday 7th March 2013 Commons Chamber

[Sir Alan Beith]

I want to consider briefly the restrictive wording of parts of clause 2 and the voluntary issue that has been raised by a number of Members.

I served on the Intelligence and Security Committee for about 11 years from its very beginning. It was a slow and painful task to get the first generation of heads of agencies and civil servants from Departments to understand the Committee’s need for a deep understanding of the relevant matters in order for us to do our job effectively. Subsequent generations of heads of agencies were ready to involve the Committee more closely and to bring up operational matters, whatever the statute said. It did not take me long to realise that it was not possible for members of the Committee to do their job properly unless they understood how various kinds of operations were conducted and the constraints and problems faced by the agencies. In particular, it was not possible to discharge an important responsibility without an understanding of operational matters.

One of the purposes of the ISC, where Members of both Houses of Parliament look closely at the work of agencies, is to give people on the outside—both in this place and in the community at large—a sense that Members who are there by democratic means are observing the agencies sufficiently closely to give confidence that their work is within the framework not only of the law, but of the ethics and principles by which we try to run our country. The background is that agencies were often accused of doing precisely the opposite in years gone by. Unless we can give people that confidence and say, “Yes, I have looked very closely at this matter and I do not think you need to be concerned about it,” the Committee will not be discharging properly one of its most important roles. We found that we had to look very closely at operational matters and that became easier as time went on.

The work sometimes involves what are, in effect, ongoing intelligence operations. In some fields, the work never stops and an operation to do with a particular recurrent problem does not have a simple end, so the provision in clause 2(3)(a)(i) is restrictive.

I fully understand how the Government have arrived at the word “voluntarily”. It would have been absurd if the wording had prevented the Committee from continuing to work closely with the agencies in the way it has done in recent years. That would have been ridiculous, so the word is there for a perfectly respectable reason. Indeed, things have been improved by the insistence that, if the Committee requests something, that does not by definition make it involuntary. However, I still think, as the hon. Member for New Forest East (Dr Lewis) said, that that is not the kind of language we want to see in the Bill. Nor does it give people outside the confidence that this Committee will be able to find out whether something is going wrong when it needs to do so, or that it can be relied on when it seeks to give assurance that all is reasonably well.

The task of getting this right is by no means over. The memorandum of understanding may be able to deal with those issues better, but, even then, words are being put on paper and when that happens, as we have discovered, simple, practical and sensible ways of doing things may appear to be precluded. Moreover, when there is friction or tension, it becomes easier for the head of an agency or, at least as often—indeed, perhaps more often—a Minister or civil servant to say, “This goes beyond the memorandum of understanding. It is outwith the terms of the statute.” We have heard such language and the right hon. Member for Torfaen (Paul Murphy), who is a previous Chairman of the Committee, will remember how rigid some people in the relevant Departments could be from time to time.

Ministers need to make it clear, as they have done to some extent in these discussions, that it is in the interests of the democratic accountability of these extremely important and valuable agencies that the public have confidence, not only in the agencies, but in that process of democratic accountability, circumscribed as it is by the need to protect the work of those agencies.

[James Brokenshire]

This has been a useful debate underlining the importance the House attaches to the scrutiny provided by the ISC and how it is being enhanced by the steps contemplated as a consequence of the Bill. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the Chairman of the Justice Committee, made the point about the scrutiny so far seen in the House and how we are seeking to strengthen it further.

I shall respond first to the hon. Member for Brighton, Pavilion (Caroline Lucas) and her amendment 71. As others have said, the essentially judicial function she seeks does not sit well within the ISC, which is intended to be a Committee of Parliament. It is not for the ISC to consider, much less determine, individual complaints about the intelligence services, especially given that there is already a body that can consider these matters and which we believe is well equipped to do so. Right hon. and hon. Members have highlighted the work of the Investigatory Powers Tribunal, which is the appropriate route through which complaints should be made.

The hon. Lady referred to the case of Shaker Aamer. I assure her that his case remains a high priority for the UK Government and we continue to make it clear to the US that we want him released and returned to the UK as a matter of priority. We continue to work with US counterparts to consider the implications for Mr Aamer’s case of the 2013 National Defence Authorisation Act. Discussions continue with senior officials within the US Administration. The Foreign Secretary raised Mr Aamer’s case numerous times with former Secretary of State Clinton and will continue to do so with Secretary of State Kerry. As the Foreign Secretary told Parliament last October, he and the Defence Secretary also made representations to the US Defence Secretary Leon Panetta last June.

Justice and Security Bill [Lords]

Debate between Lord Beith and James Brokenshire

Monday 4th March 2013 Commons Chamber

[James Brokenshire]

I hesitate to tread on amendments in the previous group, but ultimately it is for this House to determine the appropriate way to examine legislation. With other legislation, it might simply be the process of review through Government activity or Select Committee activity, but in certain cases, because of the sensitivity, import or nature of the legislation, there might be some form of additional statutory provision. We have certainly touched on areas of legislation where that has had some application. For example, some sort of mechanism or review for reporting back to the House how the legislation has been used applied to previous terrorism legislation and the Terrorism Prevention and Investigation Measures Act 2011. Because of the sensitive nature of the issues in this case, the Government have accepted that the normal scenario whereby Select Committees or other bodies are part of the general rolling assessment of legislation is not sufficient for this particular Bill. That is why we have sought to introduce the new clauses this evening.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Now that the Minister is talking about engaging Parliament and now that his right hon. and learned Friend the Minister without Portfolio is back in his place, is it not a good moment to address the idea that Parliament should be engaged by ensuring that the reviewer who can look into all the secret aspects is appointed with the agreement of a Committee of both Houses of Parliament—namely, the Joint Committee on Human Rights?

[James Brokenshire]

I would say that the provisions we have sought to introduce on the appointment of a reviewer are similar to, and in line with, other legislation such as the Terrorism Prevention and Investigation Measures Act, whereby the Secretary of State appoints the independent reviewer of terrorism legislation. The individual holding that office may well be the appropriate person to conduct this type of review or it may be someone else so that David Anderson or whoever is the holder of the office at that time is not overburdened, which could dilute the effectiveness of the independent reviewer’s analysis of the legislation. I hope that the Chairman of the Joint Committee on Human Rights would accept that the evidence and information provided by the independent reviewer has been instructive and relevant to that Committee’s consideration of the Bill.

I highlight the fact that the independent reviewer has provided quite an important perspective, looking at terrorism legislation as he does, which has added value not just to the Joint Committee’s review but to the debates we have had here. I note that David Anderson has been prayed in aid this afternoon and also in debates in the other place. We certainly recognise the value that an independent reviewer can have. I know from my discussions with other Ministers in other parts of Europe and elsewhere that the role of our independent reviewer is recognised for the importance and added value it brings in the analysis of legislation that touches on some sensitive issues.

Protection of Freedoms Bill (Programme) (No. 3)

Debate between Lord Beith and James Brokenshire

Monday 10th October 2011 Commons Chamber

[James Brokenshire]

My hon. Friend takes the issues of the House extremely seriously, and I respect him for that. The Government have made important changes to how legislation is scrutinised. We are having two days on Report for the Bill, and that is markedly different from what we would have seen from the previous Government; we would have had a day for consideration of a Bill of this kind.

The terms of the programme motion will come as a disappointment to my hon. Friend the Member for Gainsborough (Mr Leigh) and the other right hon. and hon. Members who have put their name to new clause 1. Despite the two days that we have set aside for Report, twice the normal allocation that we were accustomed to seeing in the last Parliament, regrettably it is unlikely that the House will be able to consider all the new clauses tabled for debate.

As I said, the programme motion has been constructed to ensure that there is adequate time to consider the key provisions already in the Bill. I believe that that is the right approach. Although this is not the occasion to consider the substance of new clause 1, which seeks to amend section 5 of the Public Order Act 1986, I fully recognise that the matter is of considerable interest to a number of Members on both sides of the House. That much is clear from the number of right hon. and hon. Members who have added their names to the new clause.

We agree that the issue should be examined further. That is why, in the next few days, we will publish a consultation seeking views on whether section 5 should be amended along the lines proposed by my hon. Friend the Member for Gainsborough. I will be happy to meet him to hear his views on this important issue. Once the consultation has concluded—it will run to early in the new year—the Government will set out their conclusions as quickly as possible, so that they can inform the debate on the issue while the Bill is in another place. I have no doubt that there will be other opportunities for the House to consider section 5, either when we next examine the Bill on its return from the other place or on some other suitable occasion. I can assure my hon. Friend that through the consultation we want to promote debate on this issue, not seek to curtail it, by widening and broadening it outside this House.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I am grateful for what my hon. Friend says, which helps to set in a more attractive context the otherwise uncharacteristic step that was taken by moving new clause 1 to the very end of the Bill’s consideration. Is he saying that the Government will facilitate a parliamentary opportunity to legislate if a clear conclusion emerges from these discussions?

[James Brokenshire]

The timing of the consultation is intended to be such that it can inform proceedings in the other place. There may therefore be time, in the context of the consideration of the Bill as a whole, to be able to address issues that may come through from the consultation. I hope that my hon. Friend the Member for Gainsborough will accept the consultation as a mark of our determination to undertake a proper review of section 5 and that on that basis he will agree not to press his new clause.

We believe that the programme motion strikes the right balance. I commend it to the House and ask Members to support it so that we can get on with debating the important issues that lie within the Bill.