Data Retention and Investigatory Powers Bill

Debate between Lord Beith and William Cash

Tuesday 15th July 2014 Commons Chamber

[Sir William Cash]

In respect of clause 1, we are also stating that a retention notice may relate to particular operators, and there is a whole set of subsections and paragraphs dealing with the basis on which a retention notice can be provided. It also goes on to say, in subsection (3), that the Secretary of State can

“by regulations make further provision about the retention of relevant communications data.”

Subsection (4) deals with certain provisions relating to

“requirements before giving a retention notice”,

and a code of practice and a range of other matters regarding

“the integrity, security or protection of, access to, or the disclosure or destruction of, data retained by virtue of this section”.

I entirely accept your point, of course, Sir Roger, that this is a debate on this clause, but this clause contains the essential powers that are being proposed under this piece of domestic legislation, and I am certain—this is not an assertion—that this has to be compliant with European law and it has to be compliant with the charter.

All I am saying is simply that there is an opportunity to make sure this law is effective—that clause 1 is effective. If Parliament wants clause 1 to be effective, it will want to be sure that it is bomb-proof against any challenges that may be made in respect of powers being conferred by clause 1, and in order to do that we have to get around the problem of the European Court, which has already issued an objection to the original proposals—the original regulations and the original retention directive on which the regulations are based, and, indeed, on which any subsequent regulations will be based, because I have not heard anyone yet say that the retention directive, which is the subject of clause 1, is going to be repealed by the European Union. There was some talk from the Home Secretary that she was looking at it, and there was talk about consultation, but I have not heard anybody suggest that the retention directive is going to be repealed in whole or in part. It may be that that will happen, but we are considering this Bill as it is now, and as we speak clause 1 is derived from European law and the charter of fundamental rights.

In a nutshell, this is what I am saying: section 2 of the 1972 Act requires the implementation of the requirements prescribed by the European directives and European law, and the Bill falls within the scope of European law, and the charter and the general principle of EU law will continue to apply. I will respond to the shadow Minister and the Minister in one simple statement, and it is this. If they want the legislation in clause 1 to be effective, it is imperative to make certain that arrangements are made in the primary legislation that the House is now discussing to ensure that sections 2 and 3 of the European Communities Act 1972 do not apply in this context, because that is the only way—by primary legislation—to ensure that the powers in clause 1 will not be vitiated by a further Court challenge in future. This is a fundamental question that pertains to the supremacy of Parliament. We want the legislation to pass—or many Members of the House do, judging by the majority that we have just witnessed—but if that is the case, why not insert the formula

“notwithstanding sections 2 and 3 of the European Communities Act 1972”

to ensure that clause 1 will survive? Otherwise, I fear that it is at risk.

The Home Secretary talked about wanting to remove the risk of uncertainty. All I would say is that what we are doing on the Floor of this House is compounding and creating the very uncertainty that she said she wanted to avoid. The uncertainty will come simply and solely because of the ideological obsession with not making provision in an Act—which otherwise would make it a good enactment—to include the words

“notwithstanding the European Communities Act 1972”,

and then legislating on our own terms. If we do not do that, this clause and all that follows from it will be at risk, and there will indeed be uncertainty arising from it.

If I may make this final point, Sir Roger. When the charter of fundamental rights was going through, I tabled an amendment to include the words “notwithstanding the European Communities Act 1972”. The charter applies to this clause, and as I said to the Prime Minister the other day—and it is understood—the only thing we can do is either to accept that the charter is applicable in the United Kingdom or to displace it. By including in the Bill the words “notwithstanding the European Communities Act 1972”, the charter will not apply. I tabled such an amendment to the Lisbon treaty legislation. That amendment was declined and the result is that we now have a series of European Court judgments saying that the charter does apply to the United Kingdom. If my amendment had been accepted—back in 2008, I think it was—we would not be having to face the fact that the charter is now applicable.

The charter arises in relation to this provision, and all I am asking is for the Minister and those on the Opposition Benches to listen and to act to ensure that we are not trumped by a challenge by the European Court, guided through the legislation and case law, to override legislation that is passed in this House of Parliament. It is very simple.

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

This clause is about retention; it is not about access. That distinction is an important one, not least to anybody reading these debates or drawing conclusions from them. It is also something that might profitably have been considered at greater length by the European Court when it reached its judgment.

There is a big difference in the impact on somebody’s human rights between the retention of data and having access to those data, which we will deal with in subsequent clauses. Of course, companies retain data for their own commercial purposes, such as billing and a variety of other reasons. They are constrained by the Data Protection Act—they have to have a legitimate purpose for doing so—but they have many purposes that can enable them to keep data. It is important to recognise that the problem from a human rights and privacy point of view arises when access is made—when a Government body can go into that mine of data and discover a lot of things about somebody’s life. It might have a number of good reasons to do that—to identify whether that person is involved in a serious crime—but those reasons have to be justified by some kind of procedure. We can consider that aspect later, but we must recognise that this part of the Bill is confined to the power of retention.

The Government’s answer to the argument advanced by my hon. Friend the Member for Stone (Sir William Cash) is that, in framing the retention provisions, they will not be obliged to make the same provision for every kind and every aspect of data. That should satisfy the European Court provision. If ever this comes to a legal challenge, I hope that there will be some attempt to make the Court think a little more carefully about the fact that retention and access are not the same thing.

[Sir William Cash]

My right hon. Friend has been in this House for many years. Does he recall that a situation similar to the kind that I have been describing arose in relation to the Factortame case? The European Court, through our own courts, ended up by striking down the Merchant Shipping Act 1988 because the Government did not get the legislation right, which they could do this time round.

[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.

Criminal Procedural Rights (Opt-in Decision)

Debate between Lord Beith and William Cash

Tuesday 18th March 2014 Commons Chamber

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

As the hon. Member for Hammersmith (Mr Slaughter) said, the handling of this set of proposals has not been ideal, to put it mildly. The criticisms made by the European Scrutiny Committee have considerable weight. They also suggest that because of time constraints the Committee did not come to the Justice Committee for an opinion on proposals that fall pretty squarely within its remit. That would have been a much more desirable process to follow, and lessons ought to be learned from this.

[Mr Cash]

That process is exactly what we recommend in our report, which is currently awaiting the Government’s response. The right hon. Gentleman and I are in complete agreement about this. The more often it is possible, as in this case it was not, to go to one of the departmental Select Committees for its considered opinion, the better.

[Sir Alan Beith]

Perhaps unusually, my hon. Friend and I are indeed at one on this issue. As Chairman of the Liaison Committee, I give every encouragement to Select Committees to be ready to respond when the European Scrutiny Committee draws attention to matters and seeks opinions on them. That is how the process should work, so that we make the maximum uses of the resources of expertise among Members and, indeed, House staff, that we have built up over recent years.

Let me turn to some of the specific measures. On the presumption of innocence, the basis of the directive is that there might be significant difficulties in cross-border matters when identical standards have not been observed. However, no measurable evidence has been produced showing that cases under the European arrest warrant, for example, have frequently been obstructed over a lack of compliance with identical standards. Therefore, the whole basis on which the Commission is proceeding appears to be weak. The suggested measures would certainly adversely affect the UK provision that in certain circumstances inferences can be drawn from silence. The House has debated this at great length and with some care, and the courts have developed the operation of the system with some care. The caution administered to suspects reflects the fact that adverse inferences can be drawn from silence. These provisions would completely disrupt all those processes.

The biggest danger is one that I mentioned earlier in an intervention—that processes that have satisfied tests under the European convention on human rights would not necessarily pass the test of this directive. We would therefore end up with two alternative sources of challenge to English criminal law, leaving open the possibility of passing one and failing the other. That would be an undesirable state of affairs. It would cause confusion and, indeed, forum shopping, whereby someone could obtain their preferred outcome.

On the recommendation regarding legal aid and access to a lawyer, the jurisdiction both in England and Wales and in Scotland already satisfies the provision. My colleague and friend Sarah Ludford MEP has raised issues about the fact that, without the provision, there is no requirement for access to a lawyer in the state that issues the European arrest warrant. Problems can arise from that. Indeed, we have seen them in practice, whereby, had appropriate legal advice been available in the issuing state, an ill-founded arrest warrant might never have been issued in the first place. That factor needs to be considered in the future as the situation develops.

On procedural safeguards for children, a number of problems would arise if we were to adopt the Commission’s provisions, including with regard to the difference between ages, which has already been referred to, and the mandatory representation issue. As the Lord Chancellor has himself indicated, the United Nations convention on human rights is the most accepted international baseline for the protection of children in legal proceedings. It would be better if we proceeded with these matters through advocacy of that convention and used all the resources available to the European Commission to advocate and support adherence to it, rather than create complications between member states over issues that are not central to the protection of children’s rights.

I feel most strongly about an issue I addressed earlier. I do not want to see the role of the European convention on human rights as the primary European benchmark for human rights undermined by the creation of rival or alternative procedures. That is the danger we would run if we opted into the directives.

2014 JHA Opt-out Decision

Debate between Lord Beith and William Cash

Monday 15th July 2013 Commons Chamber

[Mr Cash]

The Command Paper sets out, very late in the day, various lists, proposals, explanatory memorandums and the rest of it, effectively bouncing the Committees and shunting straight past the scrutiny process, in defiance of the promises and undertakings given months ago. The Chairs are deeply concerned about this attempt to push the scrutiny process to one side. The European Scrutiny Committee, which I Chair, has a specific job to do under Standing Orders that cannot be brushed aside by the Government or anybody else. Those are the Standing Orders of the House. The other two Committees will want to look at policy questions, but we consider proposals more on a document-by-document basis, and there are 130-odd of them, so the matter has to be dealt with within the framework of Standing Orders.

I look to the Justice Secretary, who is sitting on the Front Bench, knowing in my heart that he wants to ensure that the scrutiny process works effectively, and I invite him, in consultation with the Home Secretary, to accept our amendment and put in place that proper scrutiny process. There is no great hurry. What puzzles many Members is why an attempt has been made to bounce the House, as it were; we are puzzled about why this had to be rushed, and we have had no explanation. We simply do not understand the reasons. We do not see why there has to be a vote either. Many people think there should not be one.

In January, the European Scrutiny Committee requested that the relevant Committees should have sight of the Government’s impact assessments on the various measures under consideration. Will the Home Secretary and the Justice Secretary supply us with this information as soon as possible? It is all part of the scrutiny process. If the Government really want transparent and democratic systems that work in the interests of those whom we have the honour to represent, it is essential that we do this properly.

[Sir Alan Beith]

rose—

[Mr Cash]

I give way to the Chairman of the Liaison and Justice Committees because he also has matters to raise.

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[Sir Alan Beith]

Did the three of us—the three Committee Chairs—not warn the Government repeatedly against allowing this situation to arise by asking them to produce the memorandums in the early part of the year?

[Mr Cash]

This is driven not by hostility, but by basic common sense: it helps the democratic process and the working between the Government and the Select Committee system, whose role has been enhanced recently, to work with the grain. That is the point: this has been working against the grain. I know that my right hon. Friends the Justice Secretary and the Home Secretary, not to mention the Prime Minister, are conscious of these questions. If mistakes were made in trying to rush and not give scrutiny the opportunities that are needed in the interests of those whom we serve, it is essential to get this right. I urge them strongly to accept the amendment in the name of the Chairmen of those Committees, and on which the Chairmen of other Committees have expressed an interest too.

The Opposition’s amendment is a rather curious state of affairs, something to which I referred when I intervened on the shadow Home Secretary. I simply put it on the record like this: the full sequence would be that the United Kingdom would have to notify its block opt-out decision six months before it could notify which measures it would seek to opt back into. The specific order is clearly set out—I was not trying to bounce the right hon. Lady—in article 10 of protocol 36, and has been confirmed by the Commission in response to a question from the European Parliament. We know what the sequence should be, so it would not be possible for the Government to notify the European institutions of their intention to exercise the block opt-out once, to use the wording of the amendment, those institutions

“have committed to the UK’s ongoing participation”

in the measures concerned. There is something wrong with the wording of the Opposition’s amendment, because it does not fit with article 10 of protocol 36. Anyone can make a pedantic point, but this goes to the heart of article 10 of protocol 36.

EU Criminal Policy

Debate between Lord Beith and William Cash

Wednesday 25th January 2012 Commons Chamber

[Mr William Cash (Stone) (Con)]

We have just heard a breathtaking example of complacency from the Government—sorry, I mean the Opposition. I say that because, unfortunately, the manner in which this issue is being approached, and the reason why the European Scrutiny Committee thought this matter should be debated, is very simple. We have heard reservations expressed so far by the Minister and shadow Minister, but they do not take express account of the fact that once a communication has got going—particularly a communication under the aegis of the Lisbon treaty—we effectively open the door to considerable, radical proposals for the expansion of European criminal law.

I am glad the Minister made the comments he made and I endorse all of them. I am also glad he agrees with the Committee on a wide range of matters, particularly the nomenclature and the phrase “Euro-crimes”. However, this is a substantial issue. The document that was presented to us by the Commission concludes that

“the new legal framework introduced by the Lisbon treaty … considerably enhances the possibility to progress with the development of a coherent EU Criminal Policy which is based on considerations both of effective enforcement and”—

it claims—

“a solid protection of fundamental rights. This communication represents a first step in the Commission’s efforts to put in place a coherent and consistent EU Criminal Policy by setting out how the EU should use criminal law to ensure the effective implementation of EU policies.”

It could be no clearer than that. That is the intention, and believe me, it is the direction and the line of route.

Other hon. Members will no doubt deal with other matters arising from that, but as Chairman of the European Scrutiny Committee, I want to explain why we insisted that this matter should be debated. The Committee recommended the document for one simple reason: the communication outlines how a supranational organisation intends to pass criminal legislation that will have a direct impact on our citizens. This is indeed a sensitive area, as the enactment of criminal law is traditionally the domain of sovereign legislatures.

In the conclusion to our report, we noted the emphasis in the communication that the Commission places on respecting the general principles of subsidiarity, necessity based on clear evidence, proportionality, including the principle of ultima ratio—in other words, criminal law as a means of last resort—and the legal traditions of the EU member states when deciding whether to propose criminal sanctions to ensure the effective implementation of EU proposals. Those words are welcome, but we wait to see whether they are respected. Evidence to the contrary is abundant in relation to matters of this kind. That is because the manner in which it is proposed to move down the route of criminal law—albeit under the Lisbon treaty, which my party opposed tooth and nail during its enactment—relies heavily on the fact that there is a desire among many people in the European Union to have one country, which, by its very nature, means they would prefer to have one European criminal law policy. There is therefore a direct contradiction between the manner in which the proposals are being made and the words used. We argue that we should wait to see whether the suggestions that lie behind the Commission’s statements are respected.

We are gratified by the Government’s reaffirmation that any EU action in the field of criminal law will have to be justified on the basis of robust evidence, as well as demonstrating why lesser administrative penalties are not appropriate. The Committee intends to hold the establishment to strict account on that question. We also support the Government’s cautious approach to the Commission’s communication, but we add further caveats of our own. The European Union should not seek to harmonise the traditional rules on extraterritorial criminal jurisdiction in member states. The UK does not assert extraterritorial jurisdiction over those who are “habitually resident”—an expression that has found its way into EU criminal legislation—in this country. The EU should also refrain from defining “mitigating and aggravating circumstances” for the commission of crimes, which is best left to the discretion of the sentencing judge. Furthermore, the expression “Euro-crimes”, which is used in the communication for the 10 offences listed under article 83.1 of the treaty, is inappropriate and misleading. We ask the Government to do their utmost—in fact, we would go so far as to insist that they do this—to ensure that the term does not enter the EU’s lexicon. Indeed, I was extremely glad to hear what the Minister had to say about that.

The other point is that although there is the question of opt-ins and whether we are to accept the provisions, we have seen a torrent of opt-ins over the last few months, since this coalition Government came to power, and a significant number of Members of Parliament are deeply concerned about the tendency in that direction. Furthermore, in addition to the opt-ins, there is the emergency brake. We understand all that, but we have to have regard to that tendency, because of what can happen once the door is opened on that scale. In the light of what I said about what is in the mind of the Commission and others in the European Union, and about the tendency to move towards a policy of further integration, which would include criminal law, we should be not merely cautious, but extremely resistant towards any attempt to move further down that route.

[Sir Alan Beith]

When I was chairing the Justice Committee, I do not remember ever meeting anybody, in any justice committee in any member state, who believed that we should be working towards a single, harmonised criminal law that would replace the criminal law of member states across Europe. Is the hon. Gentleman not conjuring up a spectre?

[Mr Cash]

Certainly not. I am not conjuring up a spectre; I am talking about a tendency. In almost every area, the original proposals—from Maastricht, through to Nice, Amsterdam and Lisbon—have adopted a minimalist approach at the beginning, but then expanded, moving further and deeper into the areas of competence that have been acquired. I am not going to dispute what the right hon. Gentleman says about what he has heard; I am merely referring to what I have observed, which is also understood by many others, including the Government.

--- Later in debate ---

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

I support the motion, and I shall preface my remarks by saying that any free trade area needs an enforceable and effective system to secure compliance with the requirements put in place to create and maintain an open market. Europe also needs to keep pace with the international, cross-border nature of a great deal of crime, and with the ease of movement that criminals enjoy. Indeed, in combating crime, Europe should take advantage of its capacity for co-operation and combined effort in order to defeat criminals and criminal organisations. All our citizens, whatever their views on the European Union, would recognise the value of that.

We cannot ignore enforcement failures in various member countries, because they often harm the interests of British businesses, which can be put at a competitive disadvantage. British farmers and fishermen can also be adversely affected by inadequate enforcement in other countries. Obviously, the converse can also be true. It is usually unhelpful, however, to add new structures and layers of law, of the administration of justice and of prosecution authorities to the well-developed national systems that exist in most member countries. I therefore agree with the motion when it mentions subsidiarity and the need for robust evidence of necessity when EU measures are to be considered.

I do not entirely share the European Scrutiny Committee’s dislike of the idea of fostering citizens’ confidence in the fact that they live in a Europe of “freedom, security and justice”. It is an important feature of the European Union that membership of it commits member states to maintaining a range of important values including freedom, justice, security and human rights. The Committee calls this an example of ideological thinking. I thought that ideological thinking was making a comeback in the Conservative party, but perhaps it is still disapproved of. I remember that during my earlier political life ideology was frowned on by the Conservatives, but then Mrs Thatcher came along with an ideology of her own. That is a byway that I shall stray no further along, however. The principal responsibility for achieving these aims rests with the member states of the European Union.

The Minister said that we were about to embark on a complex opt-out—or opt-in—process, which is relevant to what we are discussing today. Under the Lisbon treaty, the Government could opt out of everything in the home affairs and justice area. They could also opt in to everything. The more likely outcome, however, is that they will seek a negotiated package, in which we opt in to those areas where it is genuinely beneficial for us to do so without complicating our system by opting in to areas that would be inappropriate for us. I hope that the Government will share with us their developed thinking on how that will be achieved, as a great deal of negotiation will be involved.

The Commissioners tend to proceed by launching a large number of proposals; they fire off a hail of bullets, very few of which reach their target. If the Select Committees of this House were to devote time and attention to every idea that appeared in a Commission paper, we simply would not be able to get on with our work on domestic policy issues. It is therefore important for Select Committees to be able to identify those elements that would benefit from careful Select Committee attention. This is true of home affairs and justice matters, and of others.

The European Scrutiny Committee carries out an important role. It does the valuable and not always very inviting work of examining the legality and proportionality of EU proposals. However, it is the Select Committees that relate to Departments that have experience and expertise in specific policy areas. It would be unreasonable to expect the European Scrutiny Committee to know enough in any given case about whether there was a necessity justification for something and whether it was a policy direction that would be appropriate in the United Kingdom. That is the kind of work that Select Committees are expected to do.

[Mr Cash]

I understand that there is obviously a complementarity between the European Scrutiny Committee and departmental Select Committees. It is important, however, to reaffirm the fact that we rarely recommend a communication for debate, but on this occasion, because of the nature and coherence of the proposals advocated by the Commission on criminal policy, we thought it was a good idea at least to give it a kick-start on the Floor of the House.

[Sir Alan Beith]

I entirely agree with the hon. Gentleman and with the action he has taken on this matter, and I very much welcome the fact that the debate is taking place. It is certainly the view of the Liaison Committee that more attention needs to be given to developing European proposals that will, if we are not careful, only come to the House at too late a stage for us to have any significant influence on them. The work of the European Scrutiny Committee in all that is extremely valuable, but there are limits to what it can do.

In conclusion, let me remind Ministers of two things. First, we want to secure as much help as we can get for Select Committees from the UKRep staff in Brussels, who are extremely good when we go as visiting Committees in giving us advice on what is happening, what is being proposed and which of the Commission’s brainwaves is getting somewhere and which does not look likely to do so.