Data Retention and Investigatory Powers Bill

Roger Gale Excerpts

Tuesday 15th July 2014 Commons Chamber

[Sir William Cash]

The European law on which this legislation is ultimately based is a retention directive. We anticipate there will be replacement regulations, but it does not matter whether the original regulations or replacement regulations are involved. Ultimately, the authority on which this Bill is based, and on which the whole of this general issue is based, is European law and the charter of fundamental rights and principles of European law which apply. As the shadow Minister just said, it so happens we have voluntarily accepted the obligations imposed under section 2 of the European Communities Act 1972 in respect of compliance with a directive and any further directives that may or may not be made, and we have also voluntarily accepted that the United Kingdom will accept all judgments of the European Court under section 3 of that Act.

It so happens that we are providing in our own domestic legislation for certain safeguards, modifications and changes—based, it would appear, on the fact that we are now discussing a Bill of this Parliament—which interfere with, cross over, interweave with and—

[The Temporary Chair (Sir Roger Gale)]

Order. The hon. Gentleman knows me well enough to know that I know that we are discussing clause 1, not the Bill as a whole.

[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.

--- Later in debate ---

[James Brokenshire]

I understand my hon. Friend’s points. I am always sympathetic to the aim of having clarity in legislation, which is why we are taking the Bill forward this evening. I do not want to discuss an amendment that we have not yet reached, so I hesitate to engage further in that context, because it would be inappropriate. However, amendments need to be considered carefully for their unintended consequences. Legislation is always subject to legal challenge of whatever kind. I am talking about not only this Bill, but all forms of legislation. The separation of powers between this place, the Executive and the judiciary is part of our constitution and part of how legislation, of whatever nature, can be challenged in our courts. While I understand his desire to try to avoid that through express language, I do not think he is able to rule out challenges before our courts for a whole host of different reasons.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

[The Temporary Chair (Sir Roger Gale)]

Before we move on to clause 2, I should inform the House that the Home Secretary has tabled new clause 7 and amendments 7 and 8, which the Chairman of Ways and Means has selected. They will be debated with the amendments and new clauses relating to clause 6. I am advised that copies are available in the Vote Office.



Clause 2

Section 1: supplementary

Question proposed, That the clause stand part of the Bill.

[James Brokenshire]

Clause 2 sets out the meaning of various terms used in clause 1 and includes provisions that underpin and support the application of the powers contained in that clause. In particular, the definition of “relevant communications data” in clause 2 limits the communications data that can be retained to those specified in the existing data retention regulations: the data that are already being retained by service providers in the UK. To be absolutely clear, the Bill does not extend in any way the types of data that we will be asking service providers to retain.

The capability gaps identified and discussed during scrutiny of the draft Communications Data Bill will not be addressed and will continue to grow, impacting on UK law enforcement. As important as that matter is, I am sure that the Committee will agree that fast-track legislation is not the appropriate vehicle for considering addressing such gaps. The Prime Minister has made it clear that it is important that the issue is addressed in the next Parliament.

The clause also provides that the regulations made under clause 1 must be made under the affirmative procedure. We have placed in the Library a draft of the regulations that we intend to make, which will give Parliament the maximum possible opportunity, given the urgency of the matter, to consider the detailed contents of the regime before secondary legislation is taken through.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Grounds for issuing warrants and obtaining data

[Mr George Howarth (Knowsley) (Lab)]

I beg to move amendment 1, page 4, line 19, at end insert—

‘(5) In section 25 (interpretation of Chapter 11), subsection (1), after “in accordance with subsection (2);”, insert— ““economic well-being of the United Kingdom” is defined as the security of critical national infrastructure, the conduct of defence contracts, the development, manufacture and design of UK defence systems, and the stability of the UK currency, banking and financial systems.”

[The Temporary Chair (Sir Roger Gale)]

With this it will be convenient to discuss clause stand part; there will be no further debate on clause stand part.

[Mr Howarth]

It was said on Second Reading, but it bears repeating that clause 3 does move things on slightly on the question of economic well-being. We keep saying that the Bill is based on the Regulation of Investigatory Powers Act 2000, but explicitly relating economic well-being to national security is progress, because the relationship was previously implicit. I accept that clause 3, even as it stands, is progress from where we stood previously.

I constructed this amendment, which is intended as a probing amendment, because I thought it was as well to have a debate about the range and scope of the term “economic well-being”. I wanted to try to work out the range of concerns that should be taken into account when it comes to that concept. In the amendment, I have effectively highlighted three areas that I think are of concern and that ought at least to be taken into account in this context. The first is critical national infrastructure, and I shall say a little more about that in a moment. The second is the conduct of defence contracts and the development, manufacture and design of UK defence systems. The third is the stability of the UK currency, banking and financial systems.

On the question of critical national infrastructure, an organisation that has some responsibility in this regard is the Centre for the Protection of National Infrastructure, which provides protective security advice aimed at reducing the vulnerability of critical national infrastructure to national security threats. It categorises national infrastructure into nine sectors: communications, emergency services, energy, financial services, food, government, health, transport and water. Not everything in that list is considered critical in nature, so the CPNI contends that within those nine sectors

“there are certain ‘critical’ elements of infrastructure, the loss or compromise of which would have a major detrimental impact on the availability or integrity of essential services, leading to severe economic or social consequences or to loss of life.”

It draws attention to broad descriptions of the types of infrastructure that would be categorised at different levels. That infrastructure can be physical, which means sites, installations or pieces of equipment, or it can be logistical, which includes information networks or systems. It is important that economic well-being takes into account critical national infrastructure, because it directly relates to the continuation of daily life that electricity, water and all the things that go with them should be available.

I do not propose to speak for long about defence, but I am aware, as I am sure others listening to the debate will be, that there have been attempts in the past by hostile nation states or individuals to compromise defence systems. There have been attempts to break into companies’ design systems and so on. Without proper controls to deal with that, there could be serious consequences for our national security. It is therefore self-evident that we should take into account defence systems and their design, manufacture and so on when we consider this matter.

The amendment also refers to

“the stability of the UK currency, banking and financial systems.”

It is interesting to look at what the Serious Organised Crime Agency has to say. It concludes by talking about cybercrime and the effects that it can have. It says:

“Financial crime can jeopardise the integrity of our financial markets and institutions.”

That is not just a question of protecting individual firms or interests. It really is related to our national security. It is interesting that the International Monetary Fund has said that

“Money laundering, terrorist financing and the related…crimes can undermine the stability of a country’s financial system or its broader economy in a number of ways and may have adverse spillover effects on global instability.”

Extradition

Roger Gale Excerpts

Tuesday 16th October 2012 Commons Chamber

[Mrs May]

The hon. Gentleman is absolutely right: it is now for the Director of Public Prosecutions to decide whether the case should be prosecuted. Very simply, it is not the case that politicians tell the Director of Public Prosecutions what to do, who to investigate or who to prosecute, so he will come to his decision based on the information available to him.

[Sir Roger Gale (North Thanet) (Con)]

Further to my question to my right hon. Friend yesterday and in the interests of those of us who have or have had constituents who have been held for long periods in European and foreign prisons—people who are United Kingdom citizens—will she seriously consider ensuring that no United Kingdom citizen may be extradited to another country where the period of detention before trial is very considerably longer than that in the United Kingdom?

[Mrs May]

We will seek to consider with the Commission and other member states the issues that have arisen in relation to the operation of the European arrest warrant. This view is not held solely by the United Kingdom. Across a number of member states, there are concerns about the way in which the EAW has been operating, and we shall be working on that matter as part of our consideration of closed measures that we may choose to opt back into, or wish to opt back into, in relation to the 2014 justice and home affairs powers. However, I have certainly heard the point that my hon. Friend makes.

European Justice and Home Affairs Powers

Roger Gale Excerpts

Monday 15th October 2012 Commons Chamber

[Mrs May]

I assure the right hon. Gentleman that I take the protection of the British public very seriously indeed. It is the first duty of government to protect the public, but we need to ensure that any measures that are in place to protect the public are the right ones. I have not said what we will do on the European arrest warrant, but I have noted the concerns that have rightly been raised about its proportionality and in relation to the cases of some UK citizens who have been in jail elsewhere. We will now start to look at the individual measures. As I have said, we will discuss with member states and the Commission the process by which we will be able to opt into certain measures, where we choose to do so.

[Sir Roger Gale (North Thanet) (Con)]

My right hon. Friend is right to draw attention to the fact that in some countries, such as France, United Kingdom citizens have been held for long periods without trial, in clear breach of the convention on human rights. Is it not absolutely correct, therefore, that before we go any further down this road, the House should have the opportunity to consider carefully and vote on any extension or further joining of the European arrest warrant?

[Mrs May]

As I set out in my statement, we intend to discuss with various parts of Parliament, including Select Committees such as the European Scrutiny Committee, by what process the House should vote on this issue. We will come back to the House in due course with proposals on how it can express its view on this significant issue of justice and home affairs powers—namely, the package of measures that we might wish to opt into when the time comes.

Policing (Telford)

Roger Gale Excerpts

Tuesday 1st February 2011 Westminster Hall

[Lynne Featherstone]

That is a matter for the local chief constable—to organise the West Mercia police force as he can best deploy them, to the best of their ability. It is within local command to decree what the deployment must be. The Government’s loud and clear message is that deployment should be to the front line for visible policing, by making back office and middle office savings. The front line should be protected and the Prime Minister would be very cross with those police forces that did not strive to make the effort and succeed—as Gloucestershire has done—in putting police on the front line.

There is no simple link between officer numbers and crime levels, as shown by the examples of other cities and countries, such as New York and Northern Ireland, and as shown in England and Wales during certain periods. We have all talked about the numbers. The hon. Gentleman mentioned the Deputy Prime Minister, when talking about the Liberal Democrat manifesto, putting 3,000 extra bobbies on the beat. In the event, many of the successes—where police numbers have fallen and crime has fallen—have been due to technological advances such as better burglar alarms and car safety. There is not a direct and absolute correlation between those two things.

I want to touch briefly on the issues the hon. Gentleman raised concerning antisocial behaviour. The Government would agree with him that antisocial behaviour blights lives and the public expect us to fight it. It is crime, however it is labelled. We know the damage that such behaviour can do to communities. It can be more disruptive than other types of crime, because it so often targets those least able to look after themselves. As the hon. Gentleman may know, we are planning to reform the toolkit for dealing with antisocial behaviour. Our aim is to reduce the bureaucracy, delay and costs that hamper the police and their local partners. We will be consulting shortly on new measures and proposals.

A trial for handling antisocial behaviour complaints was launched in eight police force areas, including West Mercia, on 4 January. That change in the way that forces respond to calls, involving IT improvements, uses new systems to log complaints. The trial aims to put into action the recommendations of HMIC’s report on the police response to antisocial behaviour. The police and Telford council have already introduced an innovative joint ASB team. They are using and helping to develop the risk-assessment tool that identifies high-risk and vulnerable antisocial behaviour callers. The trials are being supported by the Home Office, ACPO, HMIC, social landlords, and crime and nuisance groups, which illustrates the point the hon. Gentleman made about the importance of partnership working.

In conclusion, I pay tribute to the police and all the agencies and individuals who work with them in Telford and across the country. They perform an immensely valuable service in often difficult circumstances, and the Government are committed to doing everything we can to support them. We recognise the challenges caused by the unprecedented budget deficit, but we have every confidence that front-line services can be protected. We will provide real national leadership, with the National Crime Agency, in giving the police the powers they need and in helping to cut unnecessary costs and bureaucracy where a central role is needed. Our reforms will make them freer to develop local responses to local problems, without being hampered by unnecessary targets and regulations imposed from Whitehall.

I again congratulate the hon. Gentleman on securing the debate. I am sure we have the same aims in policing the safety of our communities and giving everyone the confidence to go about their daily business without fear.

[Mr Roger Gale (in the Chair)]

Order. We will now move to the debate on funding for schools in Worcestershire. Before that debate commences, I notice that, quite properly, there are a number of Members from Worcestershire present. It seems appropriate to remind Members that while any Member may at any time seek to intervene on a speech, if anyone wishes to make a speech during a half-hour Adjournment debate, that has to be with the consent of the Member in charge and the Minister, and the Chair must be notified first.