Data Retention and Investigatory Powers Bill

Lord Beith Excerpts

Tuesday 15th July 2014 Commons Chamber

[Mrs May]

We have just had an hour-and-a-half debate in which Members have been talking about the importance of parliamentary process. We have a parliamentary process called Committee stage at which amendments to the Bill will be properly considered, and that debate will take place then. I have indicated to the House that I understand the desire of some Members to ensure that the review of the capability and powers that are needed and the regulatory framework is on the statute book to ensure that that does, indeed, take place. David Anderson, the reviewer of counter-terrorism legislation, has indicated that he will lead that review and there is widespread support for that given the excellent job he does in his current role. However, I want to make sure that, in looking to ensure we undertake that review, the Bill is drafted in a way that delivers what we all want to be delivered. I would have thought that that was entirely reasonable. That debate will take place at the Committee stage, when the hon. Gentleman will be free to wax lyrical about the nature of the amendment.

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

May I bring the Home Secretary back to what she was talking about before, which is what is loosely described as blanket retention? It is not possible for the police to identify, before a crime has been committed, the range of telephone calls made and received about which it would be helpful for them to have communications data in order to pursue that crime. Therefore, the retention of data for a period is the only way the system can work.

[Mrs May]

My right hon. Friend is absolutely right. People often argue, “Actually, all you need to do is retain data from the point when you’ve identified a suspect or that a crime has taken place,” but when somebody has been murdered, for example, it may be necessary to go back and identify calls between the victim and a number of people. That is why it is important to be able to retain data from the past, but that is for a limited period. Previously, under the regulations that were agreed by this House, 12 months was the set period for retention. One issue that the European Court of Justice raised was that there should not just be one period of retention for all types of data. We are addressing that by making it a maximum period of retention, so it would be possible in any notice to a communications service provider to say that a particular type of data is required to be retained for a period of less than 12 months. We are, therefore, introducing the flexibility that the ECJ required.

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[Alan Johnson (Kingston upon Hull West and Hessle) (Lab)]

It is a pleasure to follow the right hon. and learned Member for Kensington (Sir Malcolm Rifkind). I am not sure whether he and I are the best people to support the Home Secretary. It seems to be de rigueur in some quarters to believe that members of the Intelligence and Security Committee and former Home Secretaries lose any sense of the need to support the noble causes of protection of privacy and promoting civil liberties as soon as they come into office. We are supposed to have all that sucked out of us as we walk down Marsham street.

Sometimes, as a non-tweeter, I am lectured about the importance of privacy by people who send a tweet every time they brush their teeth. Leaving that aside, I suppose that, just as it is impossible to imagine a new Foreign Secretary arguing for Britain’s withdrawal from the European Union, it is impossible to imagine a Home Secretary being caught up with the more fundamentalist wing of the civil liberties group. That does not mean that we do not care about civil liberties.

Leaving aside Home Secretaries and distinguished Chairs of the Intelligence and Security Committee, the people who work in the security services and the police and the Child Exploitation and Online Protection Centre are equally concerned about issues of privacy. The one thing that sometimes irritates me about this debate is the idea that we could direct them. In this country, with all our values, which we sometimes seem to believe exist only within this Chamber or within Members of Parliament and Ministers, that is a ludicrous suggestion.

For me, there is one test for the Bill—the Ronseal test: does it do what it says on the tin? Let me assure Opposition Members that the Home Secretary prior to 2010, who was me, operated entirely on the basis of this Bill. I have sprinkled rosewater on it, I have held it up to the light, I have closely examined all six clauses. Apart from the ambiguity, which others have referred to, we always believed that we had protection in respect of CSPs based overseas and that they were subject to the law on communications in the UK. We always operated in that way, and it is as well to make that clear. Would it not be ludicrous if it worked any other way?

[Sir Alan Beith]

It would not only be ludicrous; it would be an invitation to companies to re-site themselves outside the United Kingdom, for fear of placing themselves at a competitive disadvantage.

[Alan Johnson]

Of course. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) made a very important point earlier about the need for a blanket provision. We need to keep blanket information. How will we resolve the cases that the shadow Home Secretary set out so effectively without that provision?

I admit before this House that I believe these laws ought to go further. I have made that clear before. I agreed with the Home Secretary in the foreword to the draft Bill a couple of years ago, which says that we cannot allow continuing and new technologies to remove this capability, but I accept that this is not the place to argue for that. Indeed, I believe that the new provisions set up under David Anderson, the Privacy and Civil Liberties Oversight Board and the examination that David Anderson will carry out, make it more probable that we will have an informed debate when the matter comes before Parliament.

The right hon. and learned Member for Beaconsfield (Mr Grieve), who is not in his place, spoke about telecommunications, but before telecommunications, there was the Post Office. It has always been the case that we have used these kinds of powers to protect this country against our enemies. When I joined the Post Office as a postman in 1968—I know that is a long time ago—there was a whole unit in St Martin’s le Grand occupied by MI5, or the service, as it was called, where technicians wore rubber gloves and sat with very strong lights and large kettles, steaming open letters. I add, incidentally, that I was not one of those people. I know that by reading “The Defence of the Realm”, the splendid history of MI5 written by Christopher Andrew.

Christopher Andrew also tells us that in 1969, 221,000 postal items were opened in this way. There had been an increase of 135,000 on 1961. The interception of communications commissioner’s report in 2013 shows the total number of interception warrants authorised by the Home Secretary. Bear in mind that 221,000 letters were opened in 1969. The number of warrants authorised in 2013 was 2,670. That shows that, although there is a more complex problem, although the challenges are more complex and, I would say, the threats to this country are more severe—that our citizens are in a more perilous position than they were in the 1960s is arguable, but that is what I believe—it is incredible that we have a much greater grip on the issue now. We have far more surveillance and far more oversight of these matters than we had, and that is very healthy.

In my view, we are today defending what is there already. If there was an addition to those powers—I was pleased to hear the Chair of the Intelligence and Security Committee say that the Committee had looked at this—I would not support the Bill and I would not have supported the programme motion earlier. Members in all parts of the House see this as important. Let us not lose the capabilities that we have before we debate whether those capabilities need to be added to.

Data Retention and Investigatory Powers Bill

Lord Beith Excerpts

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.

[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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I have tried to illustrate that this issue is not something that only I am concerned about. National and international agencies and, indeed, the Government are on the record as expressing concern. I would be interested to hear from the Minister, if he thinks my definition of “economic well-being” is defective, examples of things that should be covered that are not encompassed by the amendment.

[Sir Alan Beith]

The right hon. Gentleman serves on the Intelligence and Security Committee, and I used to serve on it. When I did, I was a little concerned that the definition of “economic well-being” was extremely broad and could refer to things that might generally promote Britain’s economic interest, rather than matters related to national security, as the Bill helpfully defines economic well-being, or things that should be dealt with under other categories such as serious crime. There are serious threats, and the right hon. Gentleman is right to identify them. They are what this should be about.

[Mr Howarth]

That intervention was helpful. I said at the outset that the wording of clause 3 took us slightly further. It relates economic well-being explicitly to national security, whereas previously it was related implicitly. The right hon. Gentleman is right to say that that is the conditional element of it all. I do not think that I am drawing the definition too broadly; the interpretation could be even broader. My purpose is to find out what other factors fall under that broad heading of economic well-being. I do not for one minute think that I have included all the considerations in the short amendment that I have put together; it is merely a vehicle to allow us to discuss matters more fully.

It was interesting when we discussed the timetable for the Bill—you may rule this comment out of order, Sir Roger—that everyone said that there would not be enough time to discuss it. As far as I am aware, nobody else is due to speak on my amendment, and I do not think any other speeches are intended on clause 3, so perhaps we do have enough time.

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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.

The UK’s Justice and Home Affairs Opt-outs

Lord Beith Excerpts

Thursday 10th July 2014 Commons Chamber

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

First, Madam Deputy Speaker, may I apologise for missing the start of the Home Secretary’s speech because of a meeting with a Minister which had been arranged before today’s timings were affected by the earlier statement? I am very glad to follow my colleague the Chair of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz). We have worked together, along with the Chair of the European Scrutiny Committee, to try to improve the way Parliament is able to address these matters. It has been a struggle, and the outcome in terms of the process is still far from satisfactory, but we have reached this point and we are having this debate. There will be a debate and a vote or votes at a later stage—we are still unclear as to what that procedure will be. This has at times been like getting blood out of a stone, and I do not think that is particularly in the Government’s interests. I appreciate some of the problems that they face, but in order to obtain parliamentary support they need to give Parliament the opportunities to feel confident that it has been able to examine things properly. I am therefore glad that we now have the Command Paper, which includes all the impact assessments. It would have been very helpful to have had those much earlier, and of course we still do not have the impact assessments on those measures the Government do not propose to enter—perhaps those would have helped to illuminate the Government’s reasons for the decisions they made.

There are no changes in the opt-ins in the Ministry of Justice field; the changes are in the much larger number of measures that come within the Home Office’s sphere. The Justice Committee has therefore already examined and reached conclusions on the measures, and it is unlikely to do a great deal more on the issue between now and the later stages of consideration. We published a report, and the Government are still pursuing a view with which we broadly agree, and I will explain why.

The measures include six mutual recognition measures, including one on financial penalties that originated with the United Kingdom and Sweden. There are measures on previous convictions, prisoner transfers, judgments in absentia and European supervision orders. The Government propose to rejoin all those measures with one exception, which is the probation measures framework decision, to which I will return. The Committee agrees that the Government were right, in the national interest and in the interest of effective cross-border co-operation, to seek to rejoin five of the measures.

The Committee of course strongly supports the UK’s participation in the prisoner transfer framework decision because it is a priority to reduce the number of foreign nationals held in UK prisons. That decision is also an important part of the overall package for reforming the European arrest warrant. The Committee is particularly conscious of the problems presented by the large number of foreign nationals in UK prisons. Those are nationals from many countries in UK prisons, and the Government must continue their efforts in relation to those countries. With European countries, however, there is a much better prospect of achieving a prisoner’s return to their native country because we are not dealing with countries in which human rights considerations, on the face of it, would appear to prevent a return.

One of the five measures, the European supervision order, enables a defendant or suspect on non-custodial pre-trial bail or other supervision to return to their home member state to await trial there under supervision, and we support and welcome that measure. The probation measures framework decision provides the basis for mutual recognition and supervision of suspended sentences, post-custodial licences and community sentences, and the Committee noted the Government’s concerns about the measure’s operation:

“In view of the potential value of the Framework Decision we consider that the Government should pursue the matter in their negotiations on the opt-in list to see whether these concerns can be dealt with. We would not wish to rule out participation in the measure if concerns about its drafting can be overcome”.

We discovered from another source that a solution to that problem is alleged to have been found. The source was a press release issued by the General Affairs Council on 24 June, from which it appears that the Government have undertaken to consider opting back in to two Prüm decisions and the probation measures framework decision at a later stage.

In evidence to our Committee on 9 July, the Lord Chancellor admitted that he had been pressed by the Commission to rejoin the probation measures framework decision, arguing that it was closely linked to the prisoner transfer agreement. He repeated the objections that he had previously expressed to the Committee, particularly that we do not have much experience of the measure’s operation in other countries and the legal problems that it might cause. He said that the solution reached in the negotiations was that the UK would look at the matter again in the next Parliament to see whether rejoining would be in the national interest. It would have been preferable if the Government had volunteered information on that, either in correspondence or in a Command Paper, instead of leaving it to Committees to glean information from Council press releases and media reports.

More generally, the Justice Committee supports the Government’s choice of measures to rejoin in the national interest and in the interest of fighting crime. We reached some agreement with the Government on minimum standards measures that set standards already met by the United Kingdom. We said that

“the arguments for opting into the…minimum standards measures are primarily symbolic, and our view is that those arguments do not outweigh the disadvantages of bringing wide areas of criminal justice in the UK unnecessarily into the jurisdiction of the Court of Justice of the European Union.”

Many traditions in our judicial systems in England, Scotland and Northern Ireland are different from those that prevail in continental practice, and it therefore makes sense not to become involved in matters in the European Court of Justice when doing so does not serve the national interest. There is value in signing up to minimum standards measures if it has a persuasive effect in other countries, but the Committee’s view is that that is outweighed by the disadvantages of creating case law in the European Court of Justice on matters that do not need to be treated in that way.

The changes to the list of 35 measures do not appear to affect the overall balance of the package. Some of the changes are the consequence of measures ceasing to be subject to the block opt-out, and others, such as the additional measures on Europol and the Schengen information system, are ancillary to the Government’s decision to participate in Europol and the Schengen information system and may be regarded as necessary on the grounds of coherence and practical operability. It is interesting that the Government have achieved the conjuring trick of changing the list of measures while retaining the same total number. I suspect that has something to do with internal party management within the Conservative party, but the outcome for the balance of the measures will continue to be supported by the Committee. The measures that the Government have agreed to opt into will materially assist in the fight against serious crime and in the safeguarding of the freedom of our citizens. The Government have my support.

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[Mr Raab]

My hon. Friend is absolutely right that this is a growing problem, and I think that that is recognised at senior levels of the judiciary. We should listen with as much vim and vigour to what the judges have to say as we do to what the Association of Chief Police Officers says.

On the internet search engine ruling, it is important to say that there is a cultural and values issue at stake. It is not just some legal constitutional issue. A right to be forgotten may suit French privacy laws that gag the publication of the peccadilloes and crimes of the rich and powerful, but it directly cuts against our tradition of media freedom, transparency and free speech.

Having seen the effect of ECJ judicial activism on this area of crime and policing, do we really want to allow the ECJ to determine the powers and responsibilities of British police forces, the British criminal process and even foreign forces, through joint operations, operating on British soil? That is a huge risk for us, and I fear that we risk the Luxembourg Court doing for British policing what the European Court of Human Rights in Strasbourg has done for UK border controls.

One reason why I refuse uncritically to defer to ACPO on these issues is that it is ill-equipped to gauge the long-term threat to operations and ultimately public safety of these developments. These are constitutional developments, so it is not just a question of consulting on the administrative arrangements that we have in place now. If anyone in favour of opting back into these measures had listened to this debate, they would have thought that ACPO had been wholeheartedly in favour of opting into more measures than we are doing. If we look at the evidence it gave to the House of Lords Constitution Committee, we see that it recommended opting into only 13 measures, which is substantially fewer than the number that we are planning to opt into.

The second issue that I wish to address is the European arrest warrant. Many Members will have their own constituency horror stories, and I am afraid that I am no different. In fact, my constituency seems to attract problematic cases. The one that sticks in my mind and, frankly, in my throat is the case of Colin Dines, a former judge of impeccable character who was falsely accused of involvement in a major mafia-related Italian telecoms fraud. The story would be almost amusing if it were not so tragic. Without any evidence presented or any opportunity for him to explain his innocence to the Italian authorities, which he was confident that he could do, he was the subject of a European arrest warrant, which was nodded through by our courts, as they must be. He faced the prospect of incarceration or, at best, house arrest for months on end until his trial. Tragically, the only thing that temporarily saved him from being carted off was that he had a stroke from the stress of it, which meant that he was temporarily deemed not fit to travel. The case remains hanging over him like the sword of Damocles, which is totally unacceptable. It is also unacceptable for me as a law maker in this House to see the fate of citizens across this country.

That case is not an isolated injustice. If Members want to grasp the scale of the justice gap under the EU law and the European arrest warrant, they should listen again to our senior judiciary, such as our top extradition judge who gave evidence to the independent inquiry into extradition carried out by Sir Scott Baker. Lord Justice Thomas said that the European arrest warrant system is “a huge problem”—his words. He did not say that it was a small problem, or that there were isolated incidences, but that it was a huge problem that had become “unworkable”.

I pay tribute to the Home Secretary, who has looked very carefully at what can be done within the EU framework decision. Additional safeguards were introduced by the Government in the Anti-Social Behaviour, Crime and Policing Act 2014 and they are positive steps in the right direction, and the Government deserve great credit for looking at the matter so carefully. In my opinion, the safeguards do not go far enough. That is also the opinion of Fair Trials International. In particular, the bar on extraditing suspects when the case is not trial-ready could be made tighter. I fear that the new leave to appeal requirement undercuts all the safeguards introduced. Above all, it is a shame that we were not allowed any time on the Floor of the House to debate those clauses, important and positive as they were, because they were introduced late in Committee.

I understand from Ministers that there is no appetite in Brussels to revise the EU framework decision itself, a point that I make to my hon. Friend the Member for South Swindon. That is a sad reality that we have to accept. The question is what we do next. I believe the preferable option would be to opt out of the European arrest warrant and renegotiate a bilateral extradition treaty with a limited number of extra safeguards—the few modest additions that we need to make it safe for our citizens. We would still have fast-track extradition, but we would stop the justice system in effect selling our citizens out, which is what it does at present.

[Sir Alan Beith]

Will the hon. Gentleman give way?

[Mr Raab]

Very briefly, as I need to allow time for the winding-up speeches.

[Sir Alan Beith]

Does the hon. Gentleman envisage bilateral extradition treaties with each individual member state?

[Mr Raab]

I shall address that point squarely in a moment. I need to move on fairly swiftly.

In the meantime, between the renegotiation and the opt-outs, we could temporarily continue the EAW arrangements for, say, a year to allow the conclusion of the negotiation. In the worst-case scenario, if partner states in Brussels refused, we would have to fall back on the Council of Europe conventions that predated the European arrest warrant. It has rather breathlessly been suggested that without the EAW, we would risk letting people such as Jeremy Forrest or terrorists such as Osman Hussein go scot-free. That is irresponsible nonsense, and it must be addressed head on. Ideally, we would negotiate a bespoke extradition treaty, as I have suggested. We want something between the old cumbersome conventions and the current automaticity, but even under the Council of Europe treaties the main temporary effect would be to delay extradition proceedings from weeks to months. That would not mean any fugitive or suspect going free or any increased risk to the British public.

I have asked a range of parliamentary questions and written to Ministers on this, and I am grateful for the replies that I have received. The evidence is clear. There certainly are gaps under the Council of Europe conventions. They do not apply to some tax offences, but that is not the same as dangerous criminals threatening public safety. Even then, fewer than 0.4% of prosecutions for tax offences last year were facilitated by a European arrest warrant. The second gap is that Council of Europe conventions would require us to respect the statute of limitations on crimes in other EU jurisdictions. Again, that is hardly the kind of loophole that would stop the hot pursuit of dangerous fugitives. The third gap relates to EU countries that limit extradition of their own nationals, except under an EAW. That would affect extradition requests to Latvia, Slovakia, the Czech Republic, Belgium and Germany.

It is a very odd argument that we must accept the injustice of the European arrest warrant for British nationals because a few other countries have stronger safeguards protecting their citizens in their normal extradition arrangements. In any case, it will have become clear to the House that none of these temporary gaps under the Council of Europe conventions would apply to people such as Jeremy Forrest and Osman Hussein. It is irresponsible scaremongering to suggest that they would. Opting out of the European arrest warrant, on the Government’s own evidence to me, might for a relatively short period delay EU extradition proceedings while we conclude a better arrangement, but the risk of dangerous fugitives going free is negligible. Public safety is a perfectly respectable, reasonable and legitimate argument to weigh against the threat to individual liberty. We do it in the House all the time. Administrative convenience is not.

The third issue I wish to address is that the Government are considering opting into Prüm measures on data sharing, which would cover fingerprints, DNA, car registration details and so on. There are serious reservations about the impact of this on British citizens, and serious risks. The UK DNA database is far bigger than any other EU database, and innocent British citizens are far more likely to find their samples caught up in a foreign criminal investigation. EU authorities are more likely to assume that the availability of UK DNA samples is a strong indicator of previous criminal behaviour. We know that the EU standard for matching DNA samples is 40% less accurate than the UK standard, which accentuates the risks. Taken together, the Prüm data sharing, the European investigation order and the European arrest warrant make up a rather dangerous cocktail for an unprecedented number of future miscarriages of justice. The House should have no illusions about that.

My final point is about the alternative to opt-ins. The EU has legal personality in the JHA field, so, to answer the point made by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), if we were to refrain from opting back into any of these measures we could negotiate with one party and not 27. So that we understand that it is a practical right and not a theoretical one, let me explain that the EU has already done that with 24 other non-EU countries in JHA, so there is no reason in principle or practice why Britain cannot do the same. I ask Ministers whether that question has been raised in Brussels and what precisely the objections were. If the Government do not feel that that is feasible, has a marker at least been laid down in Brussels about future British renegotiation, making it clear that we will want to return to the whole area of JHA in the round, given what has been said?

I suggest that at the very least the Government, or perhaps even the Prime Minister, should make the context behind the decisions clear by letter to the new Presidents of the Commission and of the Council. If not, I fear that this, our best opportunity to demonstrate that we can deliver renegotiation in Europe, runs the risk of being perceived both at home and across the EU as a signal that when push comes to shove our deeds do not match our words.

Communications Data and Interception

Lord Beith Excerpts

Thursday 10th July 2014 Commons Chamber

[Mrs May]

I am grateful to the right hon. Lady. She raises two issues. First, she is absolutely right that there have been questions about the extraterritoriality of the current provisions in RIPA. We have asserted, as I believe the previous Government did, that the extraterritorial jurisdiction was there, but we have chosen to make it absolutely clear in the Bill that it is possible to exercise a warrant extraterritorially. That is part of the purpose of that part of the legislation. Secondly, we have already had discussions with the United States on the mutual legal assistance arrangements, and it is precisely that sort of issue that I think the senior former diplomat will be able to address in discussions with other Governments, particularly the American Government, because the right hon. Lady is absolutely right that currently the processes are very slow and do not address the issue as we need them to.

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

Since it is not surprising that this is a difficult issue on which to achieve coalition consensus, I welcome the fact that the Home Secretary has agreed with my right hon. Friend the Deputy Prime Minister on a whole series of safeguards that are absent from previous legislation. I suggest that as part of the fundamental review that now needs to take place of this essential but temporary legislation we should consider whether some authority beyond that of Ministers, perhaps of a judicial kind, might be needed, certainly for the highest level of intrusion into privacy.

[Mrs May]

I note my right hon. Friend’s point. Of course, the question of whether some form of legal or judicial authority—a magistrates court, perhaps—should look at access to communications data was considered by the Joint Scrutiny Committee. It looked at the processes that are in place today and accepted that they were absolutely appropriate and suited the requirements.

Justice and Home Affairs Opt-out

Lord Beith Excerpts

Monday 7th April 2014 Commons Chamber

[Jacob Rees-Mogg]

If we opt into any of these measures and they are justiciable by the European Court of Justice, we are, through that act itself, ceding sovereignty to the European Union, because it is part of building up a single state.

What does a state have that makes it a state? What is the essence of a state? At least one important part is the ability to control law and order. We are opting back into the things that are most clearly creating the powers of a federal state of the united states of Europe—a single state that is the European Union. That will mean that we are no longer a member of an international organisation like any other, such as the United Nations or NATO, from which it would be easy to withdraw, should we wish, although I am not suggesting for a moment that we do so.

Of the 35 areas that we are asking to opt back into, three illustrate the fundamental importance of the sovereignty issue. The first of those is the European arrest warrant. The decision over who can arrest a nation state’s citizens must be an essential right of that nation state in determining this exceptional power that it gives to its police officers. In our case, the power that constables who hold the Queen’s warrant have to restrict somebody’s freedom comes directly from the Crown as part of the expression of the power of the state. To decide that an arrest can be determined abroad without any of the necessary British legal procedures involved is a move very firmly towards a federal state. Crucially, the question of who is or is not arrested will no longer be determined by a British court but by the European Court of Justice, over which we have no absolute control. We may have one justice there, but it is not a court to which we send ambassadors; it is a court that is independent in its exercise of European law as opposed to British law.

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

The hon. Gentleman has fallen into uncharacteristically misleading language. Over what court does he think we do have control? We send to the European Court of Justice judges just like those we have in our own courts, and we do not purport to control them from this House.

[Jacob Rees-Mogg]

My right hon. Friend is fully aware that Parliament can overrule any court in this country by an Act of Parliament. That is how our constitution works; it is the absolute essence of our constitution and our democracy. He, of all people, must know that. We have in this House, and together with the House of Lords, the ability to change the law if there has been a judgment that is alien to our understanding of how the law should be enforced. That is simply not the case as regards the European Court of Justice. It is a court that is outside the control not of Parliament but of the people of the United Kingdom, whose rights are being given up. The arrest warrant would be handed over as part of the creation of a state.

Tied in with this is Europol. Europol, in its current form, is limited, but once we have signed up to this measure, its development will be subject to the qualified majority vote. Europol exists to provide support and assistance to member states in the fight against organised crime and drug trafficking. What are we doing in this regard? Are we setting up the very beginnings of a federal bureau of investigation? Are we starting to say that we will have a police force in Europe with a power that goes across national borders? Are we therefore saying that British subjects may be subject to a law that this country has not agreed to—indeed, we may even vote against it—and that has emanated from a judicial system that is not controlled by the democratic will of the British people?

That ties in with Eurojust, which is about creating mutual legal assistance to aid investigations and prosecutions and how judicial action in a cross-border case should take place. What is happening? We are creating an arrest warrant, the beginnings of a European police force and Eurojust, which will allow co-operation in a judicial and prosecutorial capacity. That is not a million miles away from creating a European public prosecutor, which for some reason is singled out as the one thing that is a bridge too far and that we must never have without a referendum, but everything that is being put in place makes that the next logical step. If we do this, it would be no surprise if a future Government said, “We have the arrest warrant, Europol and Eurojust, so surely we don’t need a referendum to have a public prosecutor, because that is the next thing we should do.” This is further evidence of the creation of a European federal state.

The argument in favour of this measure is that it will help ensure that criminals get caught. Everyone is in favour of that: of course we want criminals to be brought to justice. Is there not, however, an ancient view of British justice that it is better for 100 guilty men to go free—I say “men” deliberately, because women very rarely commit crimes that get them sent to prison, much less so than men, and I do not want to upset any hon. Ladies—than for one innocent man to go to prison? That seems to be at the essence of our understanding of justice. This is about risking our belief in justice for the convenience of the Administration.

Is it not that the worst argument of all that their noble lordships have produced a report saying that public officials are too idle to do their jobs properly for us to have a system of bilateral negotiations? I know that our public officials are among the greatest and hardest working people in the land. When one sees them arrayed in front of us, one knows that they would be willing to burn the midnight oil and act in the nation’s interest to ensure that we have those bilateral agreements. Although it has not yet been done, there is nothing in European law to prevent a member state from having an agreement with the body of the European Union. The European Commission does not want that to happen, but that is a very different question from whether or not it is legal. It could easily be done by a relatively simple treaty change, if it is not provided for in the current treaties.

--- Later in debate ---

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

I must first explain to the House that I had to leave during the middle of this debate, after the opening speeches, to speak in a discussion upstairs about a statutory instrument that directly affects my constituency.

I have the pleasure of following the hon. Member for North East Somerset (Jacob Rees-Mogg). It is a pleasure because of his eloquence, but eloquence and judgment do not always walk together, and on some matters he is simply wrong, including about the European arrest warrant. My belief is that if 100 criminals go free in the absence of the European arrest warrant, that would be an extremely bad state of affairs for our constituents. That is entirely separate from the question of ensuring that no innocent person is convicted in our courts. Long may we strive to achieve that second objective.

[Mark Reckless]

Will the right hon. Gentleman give way?

[Sir Alan Beith]

It is quite early to give way, but very well.

[Mark Reckless]

In response to the right hon. Gentleman’s first point, how many of our own citizens—who had done nothing wrong and been convicted of no crime—is he prepared to see detained in foreign prisons in return for those 100 people going free?

[Sir Alan Beith]

One measure that we are opting into ensures that people do not have to be detained in foreign prisons, but can be returned to the United Kingdom to serve under bail conditions in the United Kingdom. That is another reason why I think that we should look at the measures individually and decide which are in the national interest and beneficial to our citizens because they afford some protection to our citizens abroad or because they help to protect our citizens in this country from criminals who flee elsewhere having done terrible harm.

[Mark Reckless]

rose—

[Sir Alan Beith]

I want to make a little progress.

I want primarily to speak about the Justice Committee’s work on this matter, but I cannot forbear to mention that the Government have handled their relationship with Parliament very badly in this regard. This debate is a somewhat belated and limited response to the view of the three Committees that there should have been an early opportunity to debate and vote on the measures so that the Government knew the House’s views, with that being supported by impact assessments at an early stage—we still have not had any—and a much earlier indication of the Government’s intentions.

There have indeed been intensive discussions. The hon. Member for North East Somerset implied that they took place at a table with all the Conservatives on one side and all the Liberal Democrats on the other. I know that it was more complicated than that on several issues, as I am sure the Justice Secretary is well aware.

I want to turn to the measures for which the Ministry of Justice is responsible, and on which the Justice Committee reported. Of the total of 16 such measures, the Government propose that the UK should rejoin seven. Our report examines the case for and against rejoining all 16 measures, and we concluded in broad support of the Government’s approach. There are six mutual recognition measures—on financial penalties, previous convictions, prisoner transfer, probation measures, judgments in absentia and the European supervision order, to which I referred a moment ago—and the Government propose to rejoin them all, except for the probation measures framework decision.

We agreed that the Government was right, in the national interest and in the interests of effective cross-border co-operation in criminal justice, to seek to rejoin five of the measures. The Government support particularly strongly the UK’s participation in the prisoner transfer framework decision, stating that a top priority is to reduce the number of foreign nationals in UK prisons, while the decision is also an important part of the overall reform package of the European arrest warrant. My support for the European arrest warrant is accompanied by the belief that it was right to take active steps in various areas to try to reform it and make it better serve its purpose.

One of the five measures, the European supervision order, enables a defendant or suspect under non-custodial pre-trial bail or other supervision to be returned to their home member state to await trial there. It would not of course apply to people granted unconditional bail, who would be free to return to their home member state in any case. We urged the Government to implement the measure without further delay, and their response stated that they intended to do so as soon as practicable.

On the probation measures framework decision, which provides a basis for mutual recognition and supervision of suspended sentences, post-custodial licences and community sentences, we noted the Government’s concerns about its practical operability, but we stated:

“In view of the potential value of the Framework Decision we consider that the Government should pursue the matter in their negotiations on the opt-in list to see whether these concerns can be dealt with. We would not wish to rule out participation in the measure if concerns about its drafting can be overcome as part of the forthcoming negotiation process or at a later stage.”

In their response, the Government spelled out in more detail their objections to the measure, including that it falls within the jurisdiction of the European Court of Justice, while saying that they support the measure in principle. I still hope that they will make some effort to deal with some of the practical difficulties, because the measure may be of real benefit.

There are six minimum standards measures, which set out EU-wide minimum penalties and sanctions for corruption involving officials, counterfeiting of the euro, fraud and counterfeiting of non-cash means of payment, and corruption in the private sector. Two of the measures will be replaced by a new directive, covering counterfeiting of the euro, which the UK has decided not to opt into. The Government do not propose to rejoin any of the remaining four measures. They pointed out that we already at least meet the minimum standards, and rejected the arguments that were put to us in evidence that leaving the measures could cause reputational damage. We stated that

“the arguments for opting into the…minimum standards measures are primarily symbolic, and our view is that those arguments do not outweigh the disadvantages of bringing wide areas of criminal justice in the UK unnecessarily into the jurisdiction of the Court of Justice of the European Union.”

The remaining four measures under the aegis of the Ministry of Justice comprise one on data protection in police and judicial co-operation, one on a data protection secretariat, a Schengen agreement on road traffic offences and a measure on conflicts of jurisdiction. The Government propose to rejoin the first two, but not the last two. We broadly agreed with the Government’s line, although we stated that the arguments were finely balanced as to whether the UK should rejoin the framework decision on settlement of conflicts of jurisdiction, because it provides a framework of guidance for member states to put in place to protect against parallel legal proceedings on the same matters being taken in different member states. The Government’s position, which they maintained in their response, was that it had no additional practical value because best practice arrangements are already in place.

Our broad conclusion was to support the Government’s choice of opt-ins on Ministry of Justice measures. The Government closely coincide with our views. Those views are on the record for the consideration of the House to which we report, and it remains a matter of regret to me that we were not able to register our views in the House earlier and in a more concrete way. However, this debate has been a useful means of reminding the Government about where it has support, where there are differences of view and, in particular, where the Select Committees charged with such responsibilities have looked carefully at the measures and given their advice.

[Mr Dominic Raab (Esher and Walton) (Con)]

It is a pleasure to follow the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). We have not reached the same conclusion, but I pay tribute to the work of his Select Committee, and indeed to the work of all the Select Committees that have provided the reports that have invaluably informed this debate. I agree with the point that has been consistently made on the critical role of parliamentary scrutiny in all of this. Whatever our view on the measures and the direction that Britain should take, the measures are clearly substantive and important.

I welcome the Government’s exercise of the block opt-out, which is critical. I am surprised by the great lengths that Opposition Members, so few of whom remain in their place, have taken to trash the opt-out that they negotiated and to highlight all its flaws. Time and again, rather than setting out their position on the substance, they are at pains to point out their failure to negotiate, and to rubbish the product of their negotiations before the previous election.

It is important that we scrutinise the substance of this area of UK-EU relations, both because of its effect on policy and because the public care about it. For all the slavish pro-EU noises that we have heard from Labour and Liberal Democrat colleagues, their argument is clearly not taking effect with the British public. A ComRes poll for Open Europe towards the end of last year found that crime and policing is the fourth most important area that the British public want renegotiated with Europe. The top area is immigration, so two of the top four measures for renegotiation, according to the British public, who we know overwhelmingly back renegotiation, are justice and home affairs measures. If Conservative Members are just a bunch of crazies and are missing something, other Members must struggle to explain why they have failed to win over public opinion. Why do the public so strongly think that justice and home affairs is an area that needs to be reconsidered? It is important that we look at the package as a whole and at individual measures through the cold, hard lens of the British national interest.

My opening point is that the lack of proper empirical evaluation of the effectiveness of many JHA measures has been an endemic problem across successive Administrations, but particularly under the previous Government. In comparison with the way in which UK policy and legislation works, whether we are for or against the measures, we do not have a proper understanding of how the measures operate in practice. The right hon. Gentleman referred in a rather cavalier way to hundreds of criminals going free if we do not sign up to the European arrest warrant. I will take an intervention if he can explain where that figure comes from, because I do not think it is based on concrete evidence.

[Sir Alan Beith]

I was referring to the remarks of the hon. Member for North East Somerset (Jacob Rees-Mogg), who used the rather tired saying that it is better for 100 individuals to go free than for one innocent man to be convicted. My argument is that it would not be acceptable for 100 people to go free because we do not have the European arrest warrant, but we should also ensure that innocent people are not convicted.

[Mr Raab]

I thank the right hon. Gentleman for his intervention. He is the Chair of the Justice Committee, which has investigated the measure, but I am still not clear on the public protection shortfall, in empirical terms, if we do not sign up to the European arrest warrant and instead look for alternative arrangements, which I know would be slower. The Home Secretary referred to a case relating to the German constitution, but what is the empirical evaluation of the quantitative size of the public protection shortfall for which the European arrest warrant caters? I am none the wiser. I appreciate that the police would love to have fast-track extradition, but I will not nod police powers through the House that have been requested by the Association of Chief Police Officers, or by anyone else for that matter. In the same way, I would happily join forces with Liberal Democrat colleagues to face down police requests for things such as ID cards or extended powers of pre-charge detention. We need to consider the merits of each proposal.

ACPO’s evidence to the House of Lords European Union Committee has been regularly cited, and that evidence recommends that it is vital to opt back in to only 13 of 135 EU crime and policing measures. I do not suggest that we should take that at face value, but it is extraordinary that only 13 measures are regarded as being of any tangible law enforcement value. That highlights the unthinking way in which the previous Government signed up to EU measures, and they are now saying that the current Government are proposing only to opt out of trivial measures. The real question is why the previous Government signed us up to stuff that is trivial, redundant and irrelevant, not least because the trajectory of EU justice and home affairs is, sooner or later, going to encompass the jurisdiction of the European Court of Justice, which we know can turn seemingly irrelevant or peripheral measures into something damaging for national democracies. At the other end of the scale, it shows how much pointless legislation comes out of the EU if the police, who are regarded as the most zealous advocates of EU crime and policing, are advocating that we opt back in only to such a small proportion of the measures covered by the Lisbon treaty opt-in.

I pay tribute to the 21st report of the European Scrutiny Committee. I agree with all the points on the risk of giving jurisdiction to the European Court of Justice, because we would end up doing for crime and policing what the European Court of Human Rights in Strasbourg has done for deportation powers and prisoner voting and is looking to do for whole-life tariffs. We should be very cautious about that.

The Home Affairs Committee’s ninth report contains some important analysis of the European arrest warrant, which it describes as “fundamentally flawed.” It is worth noting that that backs up the evidence from Britain’s most senior High Court extradition judge, Lord Justice Thomas, to the independent Baker review of extradition. Lord Justice Thomas said that the European arrest warrant has become “unworkable.” I will read out in full some quotes from Britain’s most senior extradition judge, because this is not a right-wing excursion or some rabid anti-European ideology; it is from someone who considers such cases week in, week out. In his evidence to the Baker review, Lord Justice Thomas said:

“Looking at the 27—I’ve said this to many people—this system becomes unworkable in the end… politically there is a huge problem. There is quite a lot of strong judicial feeling on this subject”—

the European arrest warrant—

“in northern Europe that both the judges and politicians in other countries need to put the resources into their systems to bring them up to standard… We’re all agreed there’s an undoubted problem, as the cases sent in by Fair Trials International illustrate. If you talk to anyone, there’s obviously a problem… One of the problems with the way in which a lot of European criminal justice legislation has emerged is that it presupposes a kind of mutual confidence and common standards that actually don’t exist.”

That is Britain’s most senior extradition judge.

Previous speakers, particularly my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), spoke about considering not only a snapshot of current co-operation but the future vision of where EU justice and home affairs co-operation is heading. I entirely agree with that analysis. We need to think of the long term, not just the short term. I know that many hon. Members are rightly fixated on the time lag and the time gap, whether we have enough time to do anything else and whether we will find ourselves, having opted out, not opting back in to measures, but at this juncture we ought to look to a long-term settlement of Britain’s relationship with Europe in the important area of crime and policing.

I fear the creeping supranationalism that is undoubtedly coming. We cannot read the text of the regulations, whether on Europol or Eurojust, not to mention the wider remit of the European Court of Justice, without seeing that that is happening. We would have to be blind not to accept that. There is a new draft regulation that would strengthen Europol’s power to demand that national police forces initiate investigations by whittling away the national right to say no. There is similar strengthening of powers to demand data from national Governments with less ability for those Governments to say no. There is increasing supranational management of the running of Europol. Of course, if we opt back in, all of that is subject to the overriding jurisdiction of the European Court of Justice, rather than the British Supreme Court. I always find it fascinating that Opposition Members, including the shadow Justice Secretary, who set up the British Supreme Court, are now so willing and eager to give away its right to have the last word not only on matters affecting law enforcement and public safety but on matters affecting British citizens.

Ellison Review

Lord Beith Excerpts

Thursday 6th March 2014 Commons Chamber

[Mrs May]

I recognise the role that the hon. Gentleman has played in relation to this matter, the concern that he has expressed over the years, and the efforts that he has made, as he has just evidenced to us, to ensure that the truth will be found in relation to the murder of Stephen Lawrence.

On the public inquiry, as I indicated earlier, we will be looking at the terms of reference once it is clearer that Mark Ellison has been able to do his work in relation to the question of the SDS in general and miscarriages of justice. It is specifically in respect of the SDS and the Peter Francis allegations that Mark Ellison identifies that a public inquiry might be better placed to make definitive findings, and that is the background against which we will look at the inquiry’s terms of reference. In relation to some of the other aspects that he investigated, he has not highlighted the potential for a public inquiry to find further evidence and get to the truth behind certain allegations. As I said, the inquiry will look at undercover policing and the SDS, in particular, but we will set the terms of reference in due course when Mark Ellison has had an opportunity to conduct the further review that has been proposed in his report and that I have accepted as a recommendation.

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

I welcome the thoroughness of the Ellison inquiry and my right hon. Friend’s resolute response to it. Does she agree that undercover operations, although sometimes necessary, were wholly inappropriate and had no valid purpose when used against the Lawrence family and Duwayne Brooks, and that that underlines the need not only for effective accountability for such operations but an ethical framework within which they are conducted? Will she say any more about how she hopes to protect whistleblowers, whose lives and careers are often shattered when they serve the public and the vast majority of honest police officers by bringing corruption to public notice?

[Mrs May]

I thank my right hon. Friend. In fact, “wholly inappropriate” is precisely the wording that Mark Ellison uses in relation to the use of an undercover officer during the Macpherson inquiry. I think that many people will be absolutely shocked by the fact that there was an individual who was, in Mark Ellison’s words—I used the quote as did the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper)—

“an MPS spy in the Lawrence family camp”

at a time when the family were in opposition to the MPS in judicial proceedings. I am sure that everybody recognises that that was wholly inappropriate and that this is not the behaviour that we expect from the police.

On the question on whistleblowing, my right hon. Friend makes a very valid and important point. It is crucial. The issue of whistleblowing in various aspects of the public sector has been raised in recent times. It is very important that police officers feel that they are able to raise matters of concern and that those matters of concern will be properly considered and properly dealt with. I have not quite finalised my proposals in this area, so I ask my right hon. Friend to have some patience. I will inform the House in due course of how we intend to improve the ability of police officers to be whistleblowers and to feel that they are able to do that and what they feel is absolutely right and of benefit to the vast majority of offers, who operate with integrity.

Eurojust and the European Public Prosecutor’s Office

Lord Beith Excerpts

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.

--- Later in debate ---

[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.

--- Later in debate ---

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

I agree with the hon. Member for Kingston upon Hull North (Diana Johnson) on one point and disagree with her on another. I agree that there should be a debate on the Floor of the House when the three Select Committees publish their reports. They will provide important guidance to the Government in their negotiations. Where I disagree with her is that it is not sufficient for her to say, “Even if it were true, I would not have started from here.” The question still has to be asked whether the Labour party would, if it had had the opportunity, have opted in to the Eurojust proposal or not. She conspicuously failed to answer that question, except in a way that suggested that she had been given a narrow mandate by somebody in authority in the Labour party.

I start from the proposition that Eurojust is essential and that the European public prosecutor most certainly is not. For the one to get in the way of the other is harmful. Anyone who looked at the documentation for this debate and the excellent work of the European Scrutiny Committee would readily concede that there are many complexities to this matter. However, at its heart, there is a simple issue, which is that whereas cross-border crime requires an effective apparatus that takes advantage of our being in the European Union—we want to maintain those arrangements and it would be greatly contrary to Britain’s interests not to be part of them—the creation of the European public prosecutor is neither necessary nor, in the opinion of many of us, even desirable. That it should stand in the way of British participation and the participation of other countries in Eurojust is seriously harmful.

There are two ways in which the situation that we are confronted with creates difficulties for any British Government, of whatever party political composition. The first is that the proposals on the European public prosecutor and on Eurojust are interlocking. The draft directive on Eurojust incorporates the European public prosecutor so extensively that it makes the position of a state that wants one and not the other very difficult.

The second is that the mandatory powers that are given to national members of Eurojust fly in the face of arrangements in the United Kingdom. Of course, the arrangements throughout the United Kingdom are not uniform. The arrangements in England, Wales and Northern Ireland are quite different from those in Scotland. In Scotland, the Lord Advocate and the procurator fiscal can direct investigations. There is a clear separation between investigation and prosecution in England, Wales and Northern Ireland. Those differences need to be respected. If we can respect those differences in the United Kingdom, surely the European Union can respect the fact that the same objectives can be achieved by different legal systems.

[Jim Shannon (Strangford) (DUP)]

Does the right hon. Gentleman share the concern of many in this House, including the Minister, over the data that are collected by the Commission, which show that the conviction rate in the UK is 23%, when in reality it is about 75%? The data that the Commission collects centrally go against what we are trying to do.

[Sir Alan Beith]

There are many dangers in playing with those statistics. Not least, the objective of a 100% conviction rate seems to undervalue the ability of the court to determine that evidence is not sufficient to support conviction and punishment. We expect our courts to throw out cases that do not have a sound evidential basis. The whole statistical exercise is potentially dangerous and misleading.

I speak for the Liberal Democrats, rather than for the Justice Committee, because, oddly enough, this is a home affairs power rather than a justice power, and there is no doubt that we want to be in Eurojust. We do not want Eurojust to be complicated by the wholly different proposal for a European public prosecutor, and we do not want Britain’s participation to be impaired in any way.

The motion is carefully worded. It asserts that

“the UK should not opt in to the draft Regulation on the Eurojust at this time and should conduct a thorough review of the final agreed text to inform active consideration of opting into the Eurojust Regulation, post adoption”.

That wording is most ingeniously crafted. What I want it to mean is that we will make substantial efforts to ensure that we get a Eurojust regulation that meets our needs and those of a number of other member states that share our concerns and that can be allies in putting this matter right, so that there can be no doubt about our future co-operation in these arrangements, which greatly assist us in dealing with cross-border crime and catching up with fleeing criminals who dodge around the nations of Europe. That is of immense importance to us. I look forward to the Government’s active involvement in trying to get the Eurojust proposal right so that we can opt in to it in due course.

--- Later in debate ---

[Chris Heaton-Harris (Daventry) (Con)]

It is a pleasure to speak in this debate and to follow my hon. Friend the Member for Esher and Walton (Mr Raab). His arguments were well put and I completely agree with them. I will try not to copy him too much, but he nailed the point that this measure is completely tied to the European public prosecutor’s office. It is a building block of it, and a morphing of what Eurojust was originally set up to do, taking it much further than any of us in this House would like.

In last week’s debate, we did not get to the issue of what exactly the European public prosecutor’s office is, probably because the Minister asked us not to stray into that territory. According to the European Union, the European public prosecutor’s office will be a

“prosecution office of the European Union with exclusive competence for investigating, prosecuting and bringing to judgment crimes against the EU budget.”

Those last few words are the most important.

For the best part of two decades, the European Commission’s budget has not received a positive statement of assurance from the European Court of Auditors. A lot of money is wasted in maladministration, but a large sum also disappears through fraud, which has caused consternation in some circles for some time. People have, in the past, blown the whistle on areas where money has been filtered away illegally. The problem goes back to before 1999. Those of us who were involved in European affairs back then will remember that the Jacques Santer Commission fell in 1999 because of a scandal involving a failure to chase down fraud, and the ignoring of whistleblowers and internal fraud. When the Commission fell, there was marked panic in European circles and a committee of independent experts was set up. That reported in March 1999 and again in September 1999 after the European elections of that year.

Before 1999, there was an anti-fraud organisation in the European Commission called UCLAF, which after 1999 morphed into a similar anti-fraud organisation called OLAF. Its job was to chase down fraud, both internal and external, and to protect the financial interests of communities in and across the European Union. It was a simple transfer of powers from UCLAF to OLAF—alas, several members of staff also made the transfer—but OLAF did not really succeed in doing its job of chasing fraud for some time. Indeed, it tended to chase whistleblowers before it actually chased fraudsters who chose to defraud the European Union.

All the time, the fraud figures for the European Union kept climbing. Some say it was as high as €500 million, although some would say it was even more. The question for this debate is why the big leap from having an anti-fraud office, which already has the powers to do the job within the context of the existing treaties, to something that would take a huge amount of powers away from member states. Why the huge powergrab?

Alongside the proposal for a European public prosecutor’s office, the Commission has also published a communication on its ideas for OLAF in the future. It plans to table legislative proposals to alter the OLAF regulation in due course. As it happens, the Council and the European Parliament have only just agreed a revision to the 1999 OLAF regulation, which has been more than 10 years in the making. A key aim of that is to strengthen OLAF, the anti-fraud office of the European Union, and its investigative capabilities, and also to provide greater safeguards for those being investigated. The Commission’s proposals for the European public prosecutor’s office, however, would entail OLAF losing the powers to conduct investigations into fraud against the EU budget and being limited to investigations on other irregularities involving EU funds and misconduct or crimes committed by EU personnel that do not have a financial impact. It is gutting powers, which the European public prosecutor would use, from an existing body, because it wants an EPPO with more powers. It is the precursor to this area of criminal justice that my hon. Friend the Member for Esher and Walton talked about. The European Scrutiny Committee, of which I am a member, noted the proposal to amend OLAF regulation and concluded:

“We are disappointed to see that so soon after reform of OLAF’s regulatory framework has been agreed, the Commission, without waiting to see the impact of that reform, is suggesting further legislation including the creation of an EPPO. The Commission refers to this pre-emptive approach to policy-making and legislative reform somewhat euphemistically as ‘step-by-step’ when it seems more like leaps and bounds.”

This is a case of leaps and bounds. We would have to change a number of things that we hold dear in our common law system. We have no arrest without evidence. The European public prosecutor will operate under a system of corpus juris, so that one can be arrested without evidence. We do not hold suspects for more than a fixed and limited time unless charges are presented in open court. Under corpus juris, a person can be held indefinitely. In our system, we believe we have the right to face one’s accuser and see evidence. Under corpus juris, the accuser may be anonymous and no right for the accused to see the evidence exists. We like to be tried by lay magistrates in most cases, have the right to trial of a jury of one’s peers and have an adversarial model. That is not the case under corpus juris, where a person is tried by professional judges, there is no right to trial by jury and there is an inquisitorial model. We like an open court. It is a closed court under corpus juris. We like the presumption of innocence until proven guilty.

[Sir Alan Beith]

The phrase corpus juris is rather misleading—all it means is “body of law”. The hon. Gentleman is right to point out that our system is different and provides safeguards in a different way, but it would be foolish if we were to look at the rest of Europe and say that they do not have any rights because their system of enshrining them is different from ours.

[Chris Heaton-Harris]

I fully accept that fact. I am just trying to outline what this big change would mean when, according to the European Commission’s figures, it is just—it is a big sum—meant to protect €500 million-worth of fraud against the EU budget. Is this a proportionate change that we would like to see? I would argue that it is not.

Various people have come forward with individual cases regarding the difference between how the system operates now and how it would operate under a European public prosecutor. In one case, OLAF transferred information to the German and Bulgarian authorities relating to German and Bulgarian nationals who allegedly worked to defraud an EU agricultural and rural development fund scheme. Whereas the German proceedings led to a conviction, the proceedings in Bulgaria ended in acquittal—the current system led to different results in a cross-border case. The argument for a European public prosecutor is that it would have made a difference by ensuring consistency of investigation and prosecution in those countries, changing the nature of prosecution within a member state.

Another example relates to cigarette smuggling from the Czech Republic into Germany. The German criminal court used telephone tapping records obtained by the Czech police as evidence to convict the suspect. Although that evidence was obtained lawfully according to Czech law, the defence lawyer argued that without a court order authorising the telephone tapping, the evidence was inadmissible in the German court. It comes to a certain point when one wonders whether a supranational body such as the European public prosecutor could ask for the phone tapping of a British national on a matter that might not be deemed worthy of phone tapping in the UK.

This is a big step forward and we should note that it is all about a power grab from the European Commission, or a power grab from Viviane Reding, the European Commissioner for Justice. We should be very wary of where she goes from here. The hon. Member for Kingston upon Hull North (Diana Johnson) asked what discussions could be had, but having discussions with Viviane Reding can be very difficult, because she is completely focused on delivering an area of criminal justice for the EU. It is a ridiculous idea that cannot work, but were it to work, it would mean a complete change in how we do law in this country, and one that most of us in this place would fight to the death.

European Public Prosecutor’s Office

Lord Beith Excerpts

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.

--- Later in debate ---

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

I would like to join the hon. Member for Luton North (Kelvin Hopkins) in giving credit where credit is due. This debate is taking place on the basis of the report and reasoned opinion of the European Scrutiny Committee. The Government agree with that reasoned opinion, but it is very much that of the Committee. In my capacity as Chairman of the Liaison Committee and the Justice Committee, I think that the European Scrutiny Committee is entitled to the credit. If there is something wrong with our procedure, it is that it does not fully recognise that process. However, the outcome is a happy one because pretty well everybody agrees that the reasoned opinion is correct, and it accords with the Government’s view.

The proposal for a European public prosecutor offends against the subsidiarity principle. One of its primary objectives is to strengthen the protection of the European Union’s financial interests. That is a perfectly reasonable objective to pursue, but it does not have to be achieved through the creation of a European public prosecutor. Indeed, it would not necessarily be best achieved in that way. The other limb of the general argument in favour of the European public prosecutor is that it is a further development of the area of justice. That provides the hint that subsidiarity is in danger of going out the window.

There are many ways in which the European Union could improve the way in which it deals with fraud. If national Governments fail to take the actions that they should take, they should be shamed into doing so. We also have to be a little careful about using percentage figures on the success of prosecutions. There is considerable danger if anybody thinks that the target of a justice system is to have 100% success in prosecutions. Courts will sometimes find people not guilty because the evidence has not been brought forward or sustained. The 100% target is a rather dangerous principle to import into this debate.

It is often pointed out that the European Union could do a lot more to resist fraud if it designed its schemes and its disbursement of money in ways that lent themselves to fraud a great deal less. Nothing is fraud-proof, but schemes can be designed that are less susceptible to fraud than many of those that have been developed over the years by European institutions.

Many elements of the proposal offend against subsidiarity. The European public prosecutor would have investigative powers, search and seizure powers, and interception and surveillance powers. To have those powers in operation at a supranational level would be a pretty significant change.

The proposal would take away the role of the Director of Public Prosecutions in prosecuting decisions in matters relating to EU fraud. It would have a similar effect on the roles of the procurator fiscal and the Lord Advocate in Scotland. The proposal would ignore the deliberate separation of decisions on investigation from decisions to prosecute in England and Wales, which is a long-standing element of our system. We can argue about whether that barrier should be retained, but we should have that argument in the context of our legal system and not allow it to be forced on us by the introduction of the European public prosecutor.

I am convinced that in the minds of some people, the creation of a European public prosecutor is a route to a prosecution role that goes wider than EU finances. I am not always tempted by slippery slope or Trojan horse arguments, but some of the same people have advanced the case for a prosecutor to deal with EU finances and a wider role for such an office.

[Kelvin Hopkins]

The right hon. Gentleman must accept that there has been constitution creep for decades in the European Union. Surely that is what we are trying to stop.

[Sir Alan Beith]

There have also been many advances in the way in which European nations use the European Union to achieve highly desirable objectives, such as through co-operating to deal with international crime. An intrinsic problem with the way in which the European Union was constructed, which is quite understandable given the way in which it was constructed, is that there is a belief in the Commission that the way forward is always to create further powers and jurisdictions. We have created a system that has that element within it. However, those who worry about Britain’s membership of the European Union have a tendency to underestimate the benefits and the value that have been achieved through many of its processes.

My hon. Friend the Member for Cheltenham (Martin Horwood) pointed out that there is a close relationship between this proposal and the issue of Eurojust. Unhelpfully, it would compromise the acceptability of Eurojust to many people if the European public prosecutor was located within Eurojust. There are other aspects of interrelationship between the two issues. I regard Eurojust as an extremely valuable institution that has many processes that are of great advantage to British citizens. It has an important role in the prevention and detection of crime against British citizens and British interests. But again, even within the Eurojust proposals that we will be looking at again shortly, the role of the national members of Eurojust in the Commission’s proposal to order investigative measures changes the relationship between law enforcement and prosecution that is so firmly a part of our system.

There is, of course, another feature of the proposals that I am glad has not attracted the attendance of some of my hon. Friends on the Conservative Benches: if we went ahead with it, it would trigger a referendum. That might make it attractive to them to vote against the motion tonight, or whenever we have a deferred Division. I should not really tell them this, because it might inflame them in a way that I do not want. Basically, I think we all agree that establishing a European public prosecutor’s office is not the direction in which we ought to go and that it offends the principle of subsidiarity, as is extremely cogently argued in detail by the European Scrutiny Committee.

2014 JHA Opt-out Decision

Lord Beith Excerpts

Monday 15th July 2013 Commons Chamber

[Mrs May]

We are going to ensure, as the motion suggests, that the Scrutiny Committee and the two Select Committees have the opportunity properly to scrutinise the set of measures, and there will be two votes in the House. We have always been clear that Parliament and its Committees should have adequate time to scrutinise the set of measures. That work does not need to be done before today’s vote, because today’s vote is about the decision to exercise the opt-out.

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

rose—

[Pete Wishart]

rose—

[Mrs May]

I give way to the Chairman of the Select Committee.

[Sir Alan Beith]

I am grateful to the right hon. Lady. I can confirm that I was consulted about the voting arrangements, but that was only last week and it took place by telephone because I was out of the country. That consultation took place only a week ago. What happened to the commitment that, by February this year, the Committees would be given explanatory memorandums on which to base their work on the opt-ins?

[Mrs May]

I have already said to the right hon. Gentleman and to others who have raised the issue of the explanatory memorandums that I am sorry that it was not possible to produce them at an earlier date. We have looked at the time available for scrutiny by the Select Committees and the Scrutiny Committee, and for the second vote on the potential measures that we might choose to opt back into. The explanatory memorandums were made available last week, and they are available to the Committees in their consideration of any measures that the Government should opt into or seek to rejoin. That information has now been made available and I hope that it will be able to inform the Committees’ considerations.

--- Later in debate ---

[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.

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[Chris Grayling]

Further to that point of order, Madam Deputy Speaker. It might be helpful to the House to say—as I was intending to in my winding-up speech, but this will stop everybody making the point all the way through the debate—that we will accept the amendment standing in the names of my hon. Friend the Member for Stone (Mr Cash), my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) and the right hon. Member for Leicester East (Keith Vaz).

[Sir Alan Beith]

Further to that point of order, Madam Deputy Speaker. Can I claim a reward for getting my amendment accepted before I have actually moved it?

[Madam Deputy Speaker]

Sir Alan, you were just fractionally ahead of me. I seem to recollect that Mr Speaker said that the amendments would be formally moved at the end of the debate. Perhaps this is an indication that we should have the Government opening and closing a debate before we actually have that debate, so that we know where we stand. Mr Bryant, thank you very much for your point of order—

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

I rise on behalf of the Liaison Committee and the Justice Committee, both of which I chair, to speak to amendment (b), which I can do very much more briefly now that the Justice Secretary has indicated that it will be accepted, although I need to explain why we tabled it. It takes something, as the right hon. Member for Leicester East (Keith Vaz) said, to bring together on matters European the right hon. Gentleman and myself, whose views are not so different on these issues, and the hon. Member for Stone (Mr Cash). That arose from the way in which the Government have gone about this process, which is not the way that they said they would go about it. However, in two moves—in a two-step—over the past five days, the Government have sought to respond to our concerns, and I very much welcome that.

The original change that was made last week was specifically to endorse the role of Select Committees in considering the Government’s proposals as to which measures we should opt back into. The reason that we were not happy with the wording which then emerged, which was a considerable improvement on the Government’s first motion, was that it appeared to us that the words would restrict the Committees’ ability to argue for the inclusion of measures not on the list or the exclusion of measures that were on the list. Our understanding had been that specific confirmation of the list was a matter for the second debate and vote, after the Committees had considered the issues raised by the Government’s statement of what they were minded to do on the various opt-in possibilities.

[Chris Bryant]

As I understand it, in that meeting the Home Secretary asserted that it was absolutely essential—legally necessary—that there be a vote today to allow the opt-out to happen. Does the right hon. Gentleman understand that really to be the case?

[Sir Alan Beith]

There has been argument about that from two Members who devote a great deal of time to the issue and I am reluctant to become the arbiter of this argument. All we sought to secure in our capacity as Committee Chairs was that the Committees’ ability to do the job was not inhibited and could not be restricted by someone pointing to the wording and saying, “You can’t discuss that possibility. It’s outwith your reach.” What the Government had made clear all along and made clear again to me in a telephone call last week while I was away with the Justice Committee was that there is to be a second-stage process as originally envisaged, and at that stage there will be confirmation of what is at present clear Government policy as to what the list is, following consideration of the representations and views that may be put forward by any of the relevant Committees.

I do not believe that in seeking to meet the Committees’ wishes and excluding those words, the Government are seeking to change their policy. They are simply making it clear that the procedure is an open one in which Committees can put forward their representations, whether they support the list or seek variations in it.

[The Minister for Immigration (Mr Mark Harper)]

I confirm that that is the case, but let me be clear that what the Home Secretary said about the need for this House to take a view was that it is not a legal but a political issue. The European Commission has made it clear that it will not engage in a discussion or a negotiation until we make clear the view of the Government and this Parliament. That is what the Home Secretary said in her speech and that remains the Government’s position.

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[Sir Alan Beith]

We would have been in a happier and more comfortable position had the Government carried out their original intention to deliver memorandums to the Committees by February of this year, followed as soon as possible by more detailed impact assessments. That was not done. The Committees had been led to believe that it would be done so they waited and waited for those things to appear, so that they could start their consideration on the basis of clear information about what the Government had been advised and which way their thinking was going.

[Bob Stewart]

Does that mean that we now have a set time by which all the Committees are to complete their consideration? For example, is the end of consideration period to be completed by the end of the year?

[Sir Alan Beith]

We have an end of consideration date at the end of October, which is clear in the motion and emerged from discussions between Committee Chairs and the Government. It was not our ideal timetable, which would have started back in February, but that is where we are now.

What we have to consider now is how best the Select Committees can do their job in drawing the attention of the House and the Government to any concerns they might have about opt-ins that are on the list and opt-outs—or not-opt-ins, if that is the right phrase—that they might wish to consider. It is for the Committees, as Ministers have confirmed, to decide how they will go about this task, but a timetable has been set.

There is still more information which can usefully be given to Committees in the form of a more detailed impact assessment than is contained, for example, in the Command Paper. We are entitled to continue to seek that, and if we do not get it, awkward questions will be asked of Ministers when they come before the Committee, in order to elicit the information that we need. Our purpose, which will be fulfilled by the exclusion of these words, was to give the Committees of the House the scope to which they are entitled, which the Government from the beginning said they would have, in order to consider these matters before the final decision is made.

[Chris Bryant]

May I ask the Select Committee Chairman a question about how the three Committees will divvy up responsibilities? The Government have submitted not one memorandum but five—three from one Minister and one from each of the others. There might be confusion for the House if there were three reports that did not coincide.

[Sir Alan Beith]

Committees are well accustomed to dealing with overlap of responsibility. The Liaison Committee is also well accustomed to assisting in sorting out any problems that overlap may generate. There are issues that fall within Home Affairs which are of interest to the Justice Committee, such as Eurojust. We will find ways of dealing with that, even in a compressed time scale. I welcome the Government’s acceptance that in the letter as well as the spirit they should recognise that Select Committees of this House have a right and a duty to advise the House on the basis of open consideration without undue restriction.

Family Migration Rules

Lord Beith Excerpts

Wednesday 19th June 2013 Westminster Hall

[Mr Virendra Sharma (Ealing, Southall) (Lab)]

It is a pleasure, Mr Owen, to serve under your chairmanship. I am grateful for this welcome opportunity to discuss this important matter in this timely debate. Last week, the all-party parliamentary group on migration launched its report on the impact of the income requirement for those sponsoring a partner or spouse from outside the European economic area, and the new rules on adult dependants, almost a year after the new family migration rules were introduced. The media coverage of the rules and the numerous e-mails and phone calls received in my office over the past week suggest that there is great public interest in the matter, which makes this debate even more important.

I thank the APPG on migration and its secretariat, the Migrants Rights Network, for the dedicated and professional support provided to the inquiry and to the group’s members. Thanks are also due to the 280 or so individuals and organisations that took the time to submit evidence to the APPG inquiry. Submissions were received from more than 175 families, who reported that they had directly experienced difficulties as a result of the new family migration rules, and I keep receiving more every day in my office from both constituents and other families who have the same concerns.

One of the main concerns is that the income requirement—£18,600 to sponsor a non-EEA spouse or partner, more if there are also children—is high for many British people and permanent residents of the UK. According to the accounts we received, the income requirement has affected some British people who appear to have more than adequate means to support themselves and family members. Some people seeking to sponsor a non-EEA spouse or partner told us that they were not receiving any benefits and were living well within their means, but that the application process did not allow them to reflect their self-sufficiency.

Many individuals who submitted evidence said that they were in employment in the UK and being paid a wage above £12,850, which hon. Members will recognise as the current level of the national minimum wage. We heard from the Migration Observatory at Oxford university that 47% of the UK working population would now be unable to meet the income requirement through earnings alone.

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

That fact has led people in my constituency to say—although this would not suit the hon. Gentleman’s area—that there should be some regional recognition of the fact that in low-wage areas, the problem is even worse.

[Mr Sharma]

I thank the right hon. Gentleman for his appropriate intervention. I am sure that other Members will have heard their constituents expressing the same concerns.