Child Abuse Inquiry

William Cash Excerpts

Monday 3rd November 2014 Commons Chamber

[Mrs May]

The right hon. Gentleman makes an interesting suggestion, which was proposed to me by another Member this morning. The point of having a panel is that not just one individual or indeed potentially two co-chairs will be undertaking this work. The idea is to have a group of people coming together with different experience and different expertise. Unlike in simple judge-led inquiries where one person leads, it is very much the case that all the panel members will contribute. The chairman’s role is about the management of the inquiry, but the management in this case will be through a team of people brought together to ensure that the work is done properly.

[Sir William Cash (Stone) (Con)]

The Home Secretary is to be commended for the tone in which she has delivered the statement. Is there not a problem, however? If the chairman asked for an Inquiries Act 2005 inquiry—I experienced this when I had to demand the public inquiry into the Mid Staffordshire hospital, which proved to be a significant success—does the Home Secretary realise that she would have to disband the whole thing and go back to square one? Would it not be far better to start off with an Inquiries Act 2005 inquiry, which would allow evidence on oath, compulsion of witnesses and other matters to help us get to the bottom of this as we did with the Mid Staffs inquiry?

[Mrs May]

I hesitate to question my hon. Friend’s comments on such matters, but my advice is that it would be possible to turn the inquiry into a statutory one—namely, an inquiry with the powers of a statutory inquiry to compel witnesses—but for that to happen it would be necessary to have a request from the chairman. At the moment, it is not possible because we do not have a chairman. Once the chairman is in place, they will be able to make that judgment and come forward if they wish to turn this into a statutory inquiry.

Foreign National Offenders (Removal)

William Cash Excerpts

Wednesday 22nd October 2014 Commons Chamber

[Mrs May]

I am grateful to the right hon. Gentleman for his points. The Home Affairs Committee has considered this issue on a number of occasions and has taken it very seriously, and we look at the proposals that it makes. Next month the Met will be introducing the full checks against the ACPO Criminal Records Office, so action is being taken in that area. Of course it is under this Government that the links between immigration enforcement and, initially, the Metropolitan police through Operation Nexus were put in place, and that has meant that we have seen more than 2,000 foreign criminals being removed from this country. Operation Nexus has expanded into other parts of the country, and I hope that we see it expanding throughout the United Kingdom. In relation to stopping people coming here in the first place, we have been working on agreements with other countries. Membership of the European Criminal Records Information System, which has been part of the 2014 debate and is one of those areas that we wish to opt back into, is an important part of the process.

[Sir William Cash (Stone) (Con)]

The Home Secretary is completely right in saying that there are inherent problems in the law, and also that the whole matter is very challenging. I am glad to note that the repeal of the Human Rights Act is now being reintroduced, having pushed it through when I was shadow Attorney-General in the years 2001-03. Will the Home Secretary please acknowledge that an even bigger problem is the Charter of Fundamental Rights, which is enforceable by the European Court of Justice? The other day, the European Scrutiny Committee said that the only way to deal with these problems in the European Communities Act 1972 is to amend it. If we do not do that, we will end up having continuing legal problems of the kind she has identified and no solution.

[Mrs May]

My hon. Friend makes a point that he has made on a number of occasions on the Charter of Fundamental Human Rights. I am afraid that he will not get a different response now from that which he has had either from me or other Ministers in the past. The Government believe that amending it will not change the position. He refers to the Human Rights Act and as shadow Attorney-General he did work on this matter. Repealing the charter was a Conservative party manifesto commitment before the last election, and that will be repeated as we move forward to the next election.

Child Sex Abuse (Rotherham)

William Cash Excerpts

Tuesday 2nd September 2014 Commons Chamber

[Sir William Cash (Stone) (Con)]

The Home Secretary has given a good account of what the Government are proposing. She mentioned ministerial meetings. Will she take regard of what Margaret Oliver said on the “Today” programme, which is that she believed that this problem existed at the “very top”? Given the fact that criminal offences may be involved—including that of aiding and abetting, which has been engaged in by people at very senior levels—is it not appropriate for the Attorney-General to attend those ministerial meetings to give advice, because there will be some very deep inquiries about some apparently very important people?

[Mrs May]

My hon. Friend makes an interesting point. Obviously, a number of investigations are taking place to identify whether action needs to be taken against individuals who were involved in these matters. As I bring Ministers together to look at these issues, I will ensure that, where necessary, we take the best legal advice.

Data Retention and Investigatory Powers Bill

William Cash Excerpts

Tuesday 15th July 2014 Commons Chamber

[James Brokenshire]

It is certainly not our plan or intention—indeed, it is not part of our process—to make those sorts of requests. As the hon. Gentleman knows, we make requests for communications data to be retained by companies in the UK. He knows of the processes and the safeguards that exist in respect of the specific requests that are made by the different agencies, and of the tests that need to be satisfied.

[Sir William Cash (Stone) (Con)]

Does my hon. Friend accept that the impact of the European Court of Justice judgment is enormous because, in a nutshell, it will continue to be the law of the European Union irrespective of whether we pass the Bill?

[James Brokenshire]

Obviously, we have considered carefully the impact of the European Court of Justice judgment, the European convention on human rights and other parts of the law in examining the position. That is why we have considered the Bill so carefully. The additional safeguards and provisions that have been written into the Bill reflect that consideration. We remain confident that the provisions meet the legislative requirements.

--- Later in debate ---

[James Brokenshire]

We are seeking to ensure that the code is drafted effectively, and we are looking at ways that that scrutiny can take place, given the import we have mentioned. We will certainly look to engage appropriately to ensure that issues such as those highlighted by the hon. Gentleman on confidence, professional positions and matters such as legal professional privilege are contemplated and reflected on. Codes of practice already exist and it is now about putting that on a more statutory footing to give it statutory teeth, but I recognise his point.

[Sir William Cash]

My hon. Friend referred to our courts, and I am sure that by that he meant our domestic courts. Unfortunately, that is not what we have to grapple with here. The issue is what our courts may be able to do, because they are bound by section 3 of the European Communities Act 1972, which states that we must have regard to, and indeed implement as an obligation of European law, judgments of the European Court. The data retention directive is European Union law, so the regulations and replacement regulations are all derived from that assertion of the supremacy of European law. As my hon. Friend will know, I am deeply concerned about that and I hope we will come on to it later. The bottom line is that we are not able to ensure that the Bill will be effective against any European Court judgments.

[James Brokenshire]

Part of the reason we are introducing the Bill is to give that fundamental statutory underpinning in primary legislation. The questions raised have been as a consequence of the linkage between the old data retention regulations, and whether they are reliant on the data retention directive being in force and effect. We have asserted clearly that we do not accept that that is the case, but because of those questions we judge it important to deal with that uncertainty and risk, and ensure that that is stated clearly in primary legislation.

--- Later in debate ---

[James Brokenshire]

My hon. Friend needs to understand that clause 1(2) is framed in the context of clause 1, which makes it clear that it relates to “relevant communications data”. It has to be read in the context of the interrelationship between clause 1(2) and clause 1(1), which I think provides the necessary clarification and context.

The Secretary of State may give a notice only where she considers the retention requirements are necessary and proportionate for one or more of the purposes set out in RIPA. These include national security, preventing or detecting crime, and the interests of public safety. The clause also enables the Secretary of State to make regulations that will replace the existing data retention regulations. Those regulations will, among other things, set out the process for serving a data retention notice and the safeguards that must be put in place to protect the data. To give Parliament the opportunity to scrutinise the details of our proposals, we have published a provisional draft of the regulations. They are available in the Vote Office and have been made more widely available.

[Sir William Cash]

Is my hon. Friend aware that Professor Steve Peers of Essex university—he is an expert in this field, as I am sure my hon. Friend knows—has drawn attention to the objection by the Court of Justice to the requirement to retain all communications data? The fact that the directive required all data to be retained from all subscribers was the first of the considerations taken into account by the Court in reaching its conclusion that the directive was disproportionate.

[James Brokenshire]

If my hon. Friend reads the judgment, he will see that the Court upheld the principle of retention of data as contemplated in the Bill. A number of frameworks on the purpose for which data are retained were referred to, but we are clear that the regime the House is contemplating this evening, in the context of the Bill and how it sits alongside the existing regime of the Regulation of Investigatory Powers Act 2000, does provide a legally robust approach to enable our police, law enforcement and security agencies to combat organised criminality and to provide the national security that is needed. The powers we already use are intrinsic to delivering on that. The Bill makes it clear that regulations cannot specify a retention period longer than 12 months. We reflected on the judgment of the Court. As the Home Secretary said in her opening statement on Second Reading, different time periods could be allowed in relation to specific types of data.

We are maintaining that focus on proportionality and necessity not simply in terms of giving a notice, but in keeping it under review. The European Court considered that the period of retention should be based on objective criteria to ensure that it is limited to what is strictly necessary. On the basis of law enforcement surveys in 2005, 2010 and 2012, we consider that a maximum period of 12 months strikes the right balance between the ability of law enforcement and intelligence agencies to investigate crimes and an individual’s rights to privacy. Unlike the current regime, under which all relevant communications data is retained for 12 months, this approach will mean that data could be retained for a shorter period than 12 months if considered appropriate, and that different types of data could be retained for different periods.

[James Brokenshire]

My hon. Friend has expressed his views on a number of occasions on the need for continued focus on the balance between individual freedoms and collective freedom, because that collective freedom relies on our being able to conduct our affairs and to live our lives free from those who would do us harm. Sometimes people have sought to describe them as if they were in parallel, but I see them as mutually reinforcing; security and liberty must go hand in hand to develop and defend the fundamental principles that we have as a society, so to frame it separately misses the point.

My hon. Friend raises the important issue of how technology is evolving; it is constantly changing. That is why we see the import of the review by David Anderson, the independent reviewer of counter-terrorism legislation, to look at the issues more broadly, and at existing legislation and capabilities. We will come on to that, I am sure, in some of the subsequent debates in this Committee where that might be teased out in further detail, but my hon. Friend makes an important point.

[Sir William Cash]

May I make one last intervention?

[James Brokenshire]

One last go.

[Sir William Cash]

I am extremely grateful. My hon. Friend is pursuing doggedly what I believe to be a fundamentally and ultimately erroneous assumption, as will be discovered in due course, Does he accept, as everybody else appears to, that this Bill will be within the scope of EU law and that the charter of fundamental rights and the general principle of EU law will continue to apply, and that, as he correctly pointed out when he referred to primary legislation, the only way in which we can avoid running into difficulties with European Court judgments that we do not want—which, clearly, is what the Bill is about—is by using primary legislation, such as this Bill, to disapply the provisions of European law that come through sections 2 and 3 of the European Communities Act, and that it has to be notwithstanding those provisions?

[James Brokenshire]

I know the clear position that my hon. Friend has enunciated on many occasions in the House. There will be wider debates and discussions on the position of the European Convention and a British bill of rights, with which my hon. Friend is very familiar and which I personally support to ensure that our domestic law is framed properly in the context of convention rights. However, we have reflected carefully on the judgment—the right hon. Member for Blackburn (Mr Straw) described it as dense and complicated—which the Bill reflects on in the nature of the obligations set out therein. We have judged that primary legislation to avoid any uncertainty is appropriate and necessary, given the huge reliance that is placed on communications data and the right to be able lawfully to intercept for the prescribed purposes. I am sure that the wider debate—and the Select Committee that my hon. Friend chairs—is focused on the jurisdiction of the European Court of Justice over matters that are opted into and the position post-December 2014. We have reflected carefully on the application, scope and enforceability of the Bill and its compliance with relevant legislation of whatever kind, and we are confident that it meets that challenge.

Given that the European Court was considering only the data retention directive and not how member states implemented it, it did not take into account the rigorous controls in place in the UK as part of its judgment. Access to communications data in the UK is stringently regulated and safeguarded by the Regulatory and Investigatory Powers Act 2000. Data are retained on a case-by-case basis and must be authorised by a senior officer, at a rank stipulated by Parliament, from the organisation requesting the data. The authorising officer may approve a request for communications data only if the tests of necessity and proportionality are met in the particular case.

Our system was examined in detail by the Joint Committee on the draft Communications Data Bill, and it was satisfied that the current internal authorisation procedure is the right model. However, to ensure that communications data cannot be accessed using information-gathering powers that are not subject to the rigorous safeguards in RIPA, the Bill ensures that data retained under this legislation may be accessed only in accordance with RIPA, a court order or other judicial authorisation or warrant.

Hon. and right hon. Members who followed the discussions surrounding the draft Communications Data Bill will be aware that communications service providers are also able to retain communications data on a voluntary basis under a code of practice made under the Anti-terrorism, Crime and Security Act 2001. This clause ensures that the regulations made under this Bill can apply the same security safeguards and access restrictions to data retained under that code. I therefore believe that the clause should stand part of the Bill.

--- Later in debate ---

I think that, for those who have been concerned about these issues, the clause clarifies the powers that the Government will have, the time for which data must be retained, and the circumstances in which a court order will be needed.

[Sir William Cash]

Let us assume for the sake of argument that all the provisions in subsections (1) and (2) are desirable, although some people will disagree. Surely what is most important from the Opposition’s point of view is to judge whether the provisions will be effective. The right hon. Gentleman says that he wants all this because it is a good idea, but if—as is more than likely—the provisions are challenged in the European Court, where will the Opposition stand if the European Court judgment that follows the implementation of the Act eventually overturns the Act itself?

[Mr Hanson]

I think that the hon. Gentleman would expect me to say that if we were the Government and the legislation were in force, we would defend it in the European Court, and would put up a case for our arguments. Ultimately, however, we are part of the European Union, and the European Court is considering the impact of legislation of this kind throughout the EU. We must defend our parliamentary procedures, defend the decisions that we make and defend the legislation that we have, and we must argue for our the position in court. Ultimately, however, we must also take on board our European obligations.

[Mr Hanson]

My hon. Friend has made an important point. As the hon. Member for Stone (Sir William Cash) will observe, further amendments have been tabled, and I hope that the Government will consider them. We cannot discuss them now, but they would ensure that the provisions in clause 1 would be reviewed regularly, and that we would have an opportunity to make representations to the European Court if it chose to mount a challenge. However, let me respectfully say that I think we are being sidetracked into issues that do not concern the Bill as such. I consider that it fulfils an obligation to ensure that we give powers to the police and other authorities to check data and examine the conduct of that data. It establishes a definitive time scale for the holding of the data, and enables us to frame in legislation, in this United Kingdom Parliament, the mechanisms that are required to achieve that through court orders. That is why I support the clause and why the Opposition have tabled no amendments to it.

[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.

[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.

--- Later in debate ---

[Sir William Cash]

I simply ask the Minister whether he accepts—he has more or less done so—that there is a risk that the sort of principles that were applied in the case of the Merchant Shipping Act could apply to the Bill as drafted, and that the only way of dealing with that would be to employ the “notwithstanding” formula to ensure that the Bill actually survives for the reasons of terrorism, national security, child pornography and child abuse that were properly mentioned earlier. Does he accept that what I am proposing is effectively to sustain the provisions of this domestic enactment and that I am not just making a general speech about the sovereignty of the UK Parliament?

[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.

--- Later in debate ---

[Dr Huppert]

I thank the Minister for his comments. The move towards greater transparency will benefit us all, including the Home Office. I do not quite agree with some of the points that he made towards the end of his speech. Many companies are doing well publishing transparency reports, which is helping to move the agenda forwards, but in the interests of time, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 5

Effect and justiciability of this Act

‘For the avoidance of doubt and notwithstanding sections 2 and 3 of the European Communities Act 1972, this Act shall have effect and shall be construed as having effect and shall be justiciable by the courts of the United Kingdom.’—(Sir William Cash.)

Brought up, and read the First time.

[Sir William Cash]

I beg to move, That the clause be read a Second time.

I am grateful to be called at this late hour. This new clause is important. I look to the Home Secretary; she knows exactly where I am coming from and where I am going. She may believe that we will be defeated on this new clause, but nothing will prevent me from making the point, which is that the Bill could become pointless. The difficulty, which she understands—I am sure that her advisers have already explained it—is simply that clauses 1 and 2 will enable the Home Secretary to serve a data retention notice on public telecommunications operators and to make secondary legislation governing such notices. However, there is a real possibility that the precise meaning of the European Court of Justice’s Digital Rights Ireland judgment has the effect of potentially eviscerating the Bill.

Professor Peers of Essex university draws attention to the objection by the Court to the requirement to retain all communications data. The fact that the directive required all data to be retained from all subscribers was indeed the first of the considerations taken into account by the Court in arriving at the conclusion that the directive was disproportionate. The problem is that it is within the framework of European law. This Bill is within the scope of EU law and so is the charter of fundamental rights, and the general principle of EU law will continue to apply. What that means in practice is very simple: sections 2 and 3 of the European Communities Act 1972 have the effect of ensuring that the retention directive, its replacements and all that follows from it are and have to be implemented in UK law. The United Kingdom also has an obligation under the voluntarily enacted 1972 Act to accept the jurisdiction of the European Court.

The European Court has already adjudicated on this matter, but the problem is that within the framework of this Bill there are grave uncertainties that have already been expressed by myself and others during these proceedings. The bottom line is therefore whether we are to make uncertainty more uncertain by providing for a situation in which we enact a Bill that might be challenged by the European Court through arrangements that some people who do not like its provisions might decide to entertain. If they do so, it will go back through the Court of First Instance and then the Court of Appeal before going to our own Supreme Court and being referred to the European Court of Justice. As with the Merchant Shipping Act 1988, which was struck down by our own High Court in pursuance of the European Communities Act 1972, which is a voluntary Act, the net result if the European Court of Justice makes such a determination will be that the United Kingdom will be faced with this Bill being struck down as enacted.

I do not need to say any more, because I have made the point throughout our proceedings. I implore the Government to take note of the new clause, which has been carefully considered by some very senior lawyers, both academics and practising lawyers. They are convinced that the Bill is at risk and so, as I did with the enactment of the Lisbon treaty, I tabled a provision that said that notwithstanding the European Communities Act the charter of fundamental rights would not apply. The Home Secretary might smile now, but I have to say to her that that is now a serious choice for the Government. Either they except the charter of fundamental rights or, through amendment of the 1972 Act, they should ensure that the charter of fundamental rights does not apply. That also applies to these provisions and I need say no more for the moment. I sincerely trust that the Minister will give a positive response.

[James Brokenshire]

My hon. Friend has raised these points during the course of the debate and I note the points that he makes, but I restate my previous points. The Bill is intended to give greater legal certainty through the statutory underpinning it provides rather than by relying on secondary legislation with the challenges and risks that might face in the future. We have framed the legislation in the context of the ECJ judgment. We have reflected on it carefully and believe that it is robust in its construction. I note that my hon. Friend will continue rightly to challenge on these European issues, but I hope that in the context of today’s debate, he will be minded to withdraw his new clause.

[Sir William Cash]

I wish to press my new clause to a Division.

Question put, That the clause be read a Second time.

Data Retention and Investigatory Powers Bill

William Cash Excerpts

Tuesday 15th July 2014 Commons Chamber

[Sir William Cash (Stone) (Con)]

The Home Secretary has, I am sure, been advised that the Bill will be within the continuing scope of European Union law, and that the charter of fundamental rights and the general principles of European law will continue to apply. No doubt she will also understand that the Bill is itself subject to future challenge by the European Court of Justice. I draw attention to my manuscript amendment, which I hope will be selected, and which would remove any doubt about the fact that the Bill, if enacted, will have full effect notwithstanding the European Communities Act 1972

[Mrs May]

I note what my hon. Friend has said, but, having examined the judgment of the European Court of Justice, we believe that UK legislation already complies with many parts of it, and we have specifically ensured that other issues that were not addressed in the judgment are addressed in the Bill.

--- Later in debate ---

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

The Home Secretary will recognise that Parliament has been put in a difficult position by this week’s emergency legislation. It has been left until the final full week of Parliament before the recess and must be published and debated in both Houses in a week, and it relates to laws and technologies that are complex and controversial. They reflect the serious challenge of how to sustain both liberty and security, and privacy and safety in a democracy. This is therefore not the way in which such legislation should be done. Let me be clear that its last-minute nature undermines trust not only in the Government’s intentions, but also in the vital work of the police and agencies.

I have no doubt that the legislation is needed, however, and that we cannot delay it until the autumn. After the European Court of Justice judgment in April, legislation is needed to ensure that the police and intelligence agencies do not suddenly lose vital capabilities over the course of the next few months and that our legislation is compliant with EU law. So Parliament does need to act this week so that existing investigations and capabilities are not jeopardised over the next few months, but this is a short-term sticking plaster. As we support the legislation today, we must also be clear that we cannot just go on with business as usual, when the powers and safeguards that keep us free and safe are rarely discussed and only debated behind closed doors. I want to set out today why this parliamentary debate needs to be the start of a much wider debate about liberty and security in an internet age, why we can only pursue this short-term legislation if it is the beginning and not the end of the debate, and therefore why this legislation is needed in the short term, but also why safeguards are needed, too.

[Sir William Cash]

Does the shadow Secretary of State accept that the legislation will be within the scope of EU law and the charter of fundamental rights, in which the previous Government got themselves into a pretty average muddle—if I may put it that way—and that the general principle of EU law will prevail? Does she therefore also accept that it is possible that the European Court of Justice could come back to this legislation, as it did with the Merchant Shipping Act 1988, and strike it down if in fact it takes the view that it is incompatible with EU law? Would she accept the idea in principle—

The UK’s Justice and Home Affairs Opt-outs

William Cash Excerpts

Thursday 10th July 2014 Commons Chamber

[Sir William Cash (Stone) (Con)]

As my right hon. Friend knows—she has said this already—there are concerns that our laws are being made elsewhere in this context. She then says that in fact we will keep control over our laws. That is precisely not what is happening because, as she knows from the statement she made earlier today, through section 3 of the European Communities Act 1972, the European Court of Justice overrides not only this Parliament voluntarily, but also our Supreme Court.

[Mrs May]

As I indicated earlier, the House will introduce its own legislation to ensure that we are able to do what we wish to do in terms of the powers of our law enforcement agencies and our security and intelligence agencies. We must, however, make a choice on some of these measures, and the question is whether we believe that we need such measures to keep the public safe and ensure that people are brought to justice, or not. I believe that with the measures we have negotiated, both I and the Justice Secretary—he has also been working hard on this matter—have recognised those issues and will ensure that our police and law enforcement agencies are able to do the job we want them to do.

[Mrs May]

I find my hon. Friend’s argument strange. He says that, simply because a small number of serious criminals such as murderers are extradited on the European arrest warrant compared with the number indicted here in the UK, we should not worry. If somebody has committed a murder and we wish to extradite them from another European member state, we should be able to do so. The EAW, as all those who work with it will recognise and confirm—it has been confirmed in evidence to Select Committees—is a better tool to use because it enables extradition to take place more quickly.

As I have indicated, the Council of Europe arrangements, which were in place previously, had a time limit. Had the European arrest warrant not been in place, we would not have been able to extradite the individual I mentioned earlier, Mr Cullen, back to the UK to face justice, and his victims would not have seen justice done. All the provisions—[Interruption.] My hon. Friend the Member for Shipley (Philip Davies) mentions the DNA database from a sedentary position. He and I have a different opinion on the database because he would like everybody in the UK to be on it.

All the EAW provisions to which I have referred have been made in UK law and will commence later this month. I believe they will make an important difference in the operation of the arrest warrant. The Labour Government could have made all those changes during the eight years they oversaw the EAW, but they failed to do so. That failure has coloured the views of many in the House and beyond it about the EAW, but it should not cloud the fact that the EAW is a vital tool for ensuring that justice is done in this country and for keeping the British public safe, as has been so clearly impressed on me and Committees of the House in evidence given by the police and prosecutors who use it. I take that responsibility as Home Secretary very seriously, and it underpins everything I say in the debate and the process that has brought us to this point.

It might be helpful to remind hon. Members of the background. When without the promised referendum the previous Prime Minister, the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown), signed the UK up to the Lisbon treaty, he ceded more powers to the European institutions and gave up our veto over police and criminal justice matters. We got very little in return, but one of the few things we got from that flawed negotiation and imperfect treaty was the option to opt out of all the police and criminal justice measures that were agreed before the Lisbon treaty came into force. However, that opt-out had to be exercised en masse before the end of May 2014. Following votes in both Houses of Parliament last year, that is exactly what the Government did. That decision is irreversible and will come into effect on 1 December 2014. From that date, we must either opt back in to the smaller number of measures that we think are vital for the protection of the British people and other victims of crime, or face an operational gap that will hamper the efforts of our police and law enforcement agencies.

When the Justice Secretary and I came to the House last July, we explained that we had listened carefully to the views of our law enforcement agencies and prosecutors, and concluded that a small number of measures that were subject to the opt-out decision add value in the fight against crime and the pursuit of justice, and that it would therefore be in our national interest to rejoin them. We listened to right hon. and hon. Members, and carefully considered the reports of the European Scrutiny Committee, the Home Affairs Committee and the Justice Committee, before opening formal negotiations with the European Commission, the Council and other member states.

Good progress has been made, and I am pleased to be able to report that we have reached an in-principle deal with the Commission on the non-Schengen measures, which fall under its purview, and we have made good progress on the Schengen measures, on which the outline of a possible deal is now clear. I indicated earlier that the matter was discussed at the General Affairs Council on 24 June, but technical reservations remain, and discussions continue with the aim of allowing those reservations to be lifted. Therefore, the negotiations are ongoing, but, as I have said, the Justice Secretary and I have been clear throughout that we will update Parliament as appropriate and give right hon. and hon. Members the opportunity to debate the issue. That is what we are doing today. Last week, we published the Command Paper—Cm 8897—which includes the full list of measures that were discussed at the General Affairs Council, and impact assessments on each of the measures. That fulfils the Government’s commitment to provide those impact assessments and further demonstrates our commitment to parliamentary scrutiny of the matter.

Many were sceptical that a deal could be done, and many believed that the European Commission and other member states would force the UK into measures that we did not want to rejoin, but I am proud to say that we have been able to resist many of the changes demanded by others, and have not been pushed into rejoining a larger number of measures. We are clear that the deal is a good deal for the United Kingdom.

One measure that we have successfully resisted joining is Prüm, a system that allows the police to check DNA, fingerprint and vehicle registration data. I have been clear in the House previously that we have neither the time nor the money to implement Prüm by 1 December. I have said that it will be senseless for us to rejoin it now and risk being infracted. Despite considerable pressure from the Commission and other member states, that remains the case.

All hon. Members want the most serious crimes such as rapes and murders to be solved and their perpetrators brought to justice. In some cases, that will mean the police comparing DNA or fingerprint data with those held by other European forces. Thirty per cent. of those arrested in London are foreign nationals, so it is clear that that is an operational necessity. Therefore, the comparisons already happen, and must do so if we are to solve cross-border crime. I would be negligent in my duty to protect the British public if I did not consider the issue carefully.

[Sir William Cash]

Will my right hon. Friend explain to the House why it is so important to have those cross-border co-operation arrangements with the EU and not with the entire world?

[Mrs May]

Our police forces of course co-operate with other police forces throughout the world in bringing criminals and perpetrators to justice. The European arrest warrant—I will repeat myself—is an extradition arrangement that improves on the extradition arrangements that we had previously. I recognise that there have been concerns about it, but we have legislated on those concerns here in this Parliament.

I was describing the Prüm system, which is about the easy, efficient and effective comparison of data when appropriate. We have been clear that we cannot rejoin that on 1 December and would not seek to do so. However, in order for the House to consider the matter carefully, the Government will produce a business and implementation case and run a small-scale pilot with all the necessary safeguards in place. We will publish that by way of a Command Paper and bring the issue back to Parliament so that it can be debated in an informed way. We are working towards doing so by the end of next year. However, the decision on whether to rejoin Prüm would be one for Parliament. Unlike the Labour Government, who signed us up to that measure in the first place without any idea how much it would cost or how it would be implemented, the Government will ensure that Parliament has the full facts to inform its decision.

On another subject, I know that my right hon. Friend the Justice Secretary will want to address the probation situation in his closing remarks—that is another measure we have successfully resisted rejoining.

The Government propose to rejoin other measures in the national interest. We wish to rejoin the European supervision order, which allows British subjects to be bailed back to the UK rather than spending months abroad awaiting trial. That will stand alongside the reforms we have made to the European arrest warrant, and make it easier for people such as Mr Symeou to be bailed back to the UK and prevent such injustices from occurring in future.

We are also seeking to rejoin the prisoner transfer framework decision, a measure that my right hon. Friend the Justice Secretary considers important. The framework helps us to remove foreign criminals from British jails—prisoners such as Ainars Zvirgzds, a Latvian national convicted of controlling prostitution, assault, and firearms and drug offences. In April 2012, he was sentenced to 13 and a half years imprisonment in the UK. Last month, he was transferred out of this country to a prison in Latvia, where he will serve the remainder of his sentence. Had it not been for the prison transfer measure, he would have remained in a British prison, at a cost to the British taxpayer of more than £100,000.

We wish to rejoin the measure providing for joint investigation teams, so that we can continue to participate in cross-border operations such as Operation Birkhill. That collaboration with Hungary, funded by Eurojust and assisted by Europol, led to five criminals being sentenced at Croydon Crown court last month to a total of 36 years’ imprisonment for their involvement in trafficking more than 120 women into the United Kingdom from Hungary, the Czech Republic and Poland. One of those convicted, Vishal Chaudhary, lived in a luxury Canary Wharf penthouse and drove a flashy sports car bought from the money he made selling those women for sex. Chaudhary and his gang managed their operation from a semi-detached house on a suburban street in Hendon, and operated more than 40 brothels across London, including in Enfield and Brent. Their victims were threatened with abuse if they tried to contact their families. Some were forced to have sex with up to 20 clients a day. These are the victims of crime that the measures we are debating today help. Joint investigation teams are a vital tool in the fight against modern slavery, a crime this House so passionately demonstrated earlier this week it wants to see tackled. I hope the House will support rejoining the measures that will help us to do that.

--- Later in debate ---

[Mr Hanson]

I appreciate that others take a different view, but that is my view.

I welcome today’s debate because I believe—again, I think the Home Secretary shares this belief—that crime and criminals do not respect national borders. Technology has moved on in the last 15 to 20 years, which means that a range of issues need to be addressed not just within the boundaries of the United Kingdom, but across Europe as a whole. Free movement and new forms of criminal activity, such as cybercrime, require collective action across Europe.

[Sir William Cash]

In this very interesting exchange between those on the Front Benches, who seem to be largely in agreement, let me ask the same question that I asked the Home Secretary. Would the right hon. Gentleman be good enough to explain to me and the House why we have an arrangement with the European Union on this basis and not one to deal with other murderers, traffickers and the rest of it in the rest of the world? Can he explain what is so special about the European Union in this context?

[Mr Hanson]

As I think the Home Secretary also indicated in our little tête-à-tête of agreement, there is a wider world outside Europe, but we have strong ties with Europe. We have free movement in Europe on a range of matters. We do not have free movement from outside the European Community, so there are issues that we should ensure we deal with within the European Community.

--- Later in debate ---

[Sir William Cash (Stone) (Con)]

This issue is not at all about shaking off Eurosceptics; it is about deciding what is sensible for the United Kingdom in line with our values, our traditions and our own rule of law. As many right hon. and hon. Members have indicated, there is no reason for these provisions that could not have been achieved by other means. Furthermore, I have still not had an answer to the question: what is so special about the European Union and the cross-border arrangements that operate within it, compared with anywhere else in the world, where we will find murderers, traffickers and all the other problems that my right hon. Friend the Home Secretary mentioned? The problems are found in the rest of the world and in Europe, yet we have these special arrangements for Europe alone. The answer is simple: it is about sovereignty.

This is all about giving in to the European Union, through the European Communities Act 1972. Watching both Front-Bench teams is rather like watching an attempt to get out of a paper bag—except for the fact that this paper bag is a steel mesh. The steel mesh is the European Court of Justice and sections 2 and 3 of the European Communities Act. I respect what the Home Secretary is trying to do because she is stuck and trapped in arrangements that are being dictated by the very people—Mr Juncker, for example, who came forward with these proposals from the European Commission, and Viviane Reding, another European Commissioner of the first order—who are committed to driving forward these arrangements in the belief that if they manage to secure a EU-wide criminal justice system, they will make further progress towards the European political union that they want. That is really what it is all about. It is simply naïve and disingenuous to put it any other way.

[Mr Redwood]

Does my hon. Friend remember that when we had Conservative Governments, we always understood that, and it was a fundamental principle that home affairs and foreign affairs had to be kept outside the treaties and outside the purview of the European Court of Justice through the three pillar structure?

[Sir William Cash]

That is absolutely right. I have followed these matters with what could be described as a mild degree of interest since the Maastricht treaty, in which we were promised all these pillars, but they have all now collapsed as though Samson had stretched out and pulled them down, bringing the whole of the criminal justice arrangements we had previously enjoyed crashing down with him.

Despite all the promises that were made, during the Lisbon treaty debates my right hon. Friends on the Front Bench and I, who were then in opposition, voted against every single measure. We were completely united as a party, not just as Eurosceptics but as sensible people—rational people, if I may say so to the right hon. Member for Delyn (Mr Hanson). The bottom line is that we have now completely reversed our position and are in the process of accepting 35 measures that we would not have contemplated when the Lisbon treaty was going through.

Many of the issues that have already been raised and will be raised later during the debate are of deep concern not only to many Conservative Members but, I would say, to many people throughout the country, as the votes in the European elections indicated. I think that this is just another example of our giving in to European measures when there is no real, rational reason for doing so, given that there are criminals—murderers, traffickers and so forth—throughout the rest of the world.

From 1 December 2014—the right hon. Member for Delyn mentioned this, but I want to reaffirm it from this side of the House—the Court of Justice will exercise full jurisdiction over all EU police and criminal justice measures. As a result, the Commission will be able to infract member states—bring them before the Court, because we have allowed it to do so—and request a fine if they fail to implement the measures correctly. National courts will be able to seek preliminary rulings from the Court on their interpretation or validity. That is a matter of grave concern to the United Kingdom. The European Scrutiny, Home Affairs and Justice Committees —the Chairmen of all three are present—were concerned about the 2014 block opt-out decision, and every one of us, including all the members of my Committee, was critical of the Government’s reluctance to engage fully with Parliament. All the Committees’ reports are tagged to this debate.

The history of the issue has not been by any means a happy one. In their response to the reports, the Government stated:

“ For the avoidance of doubt, we reaffirm our commitment to hold a second vote in both Houses of Parliament before making a formal application to rejoin any measures. We continue to believe that in order for this vote to be as informed as possible, it should be held after we have reached an ‘in principle’ agreement on those measures we will seek to rejoin.”

The problem is that this debate—a general debate—is not meeting what we understood would be the case. I remain somewhat surprised that we are engaging in this debate when the timing of and procedure for the real debate have not yet been spelt out. I hope that, when he winds up today’s debate, the Justice Secretary will give us a clear, factual indication of when that vote and that debate will take place, because that is what the Government have committed themselves to doing.

[Jacob Rees-Mogg]

My hon. Friend makes a crucial point. We understood from the Home Secretary that there would be a vote, but we have been given no assurance that there will be a debate prior to that vote. Will my hon. Friend be seeking clarification on that?

[Sir William Cash]

That is exactly what I have said, and that is exactly what we need to have an answer to. What we do not want is a short debate followed by a vote. We want a comprehensive debate on the Floor of the House of Commons—no ifs and no buts. I am sure that the Justice Secretary will be able to give us that assurance.

A letter written to me by the Home and Justice Secretaries dated 3 July confirmed that an agreement “in principle” had been reached with the Commission on the non-Schengen measures, but not on the overall package. According to the Home Secretary, a number of “technical reservations” remained in regard to the Schengen measures, and the General Affairs Council maintained that position the other day. We must have a further, full debate on the Floor of the House, and a vote, once full agreement has been reached.

I want to put a number of questions to the Government. I should be grateful—as, I think, would the rest of the House—if the Justice Secretary responded to them when he winds up the debate.

We need the Government to explain the reasons for the changes to the 35 measures, and to identify which changes demanded by the Commission and the other member states they were able to resist. We want them to clarify whether these are the measures that the Government themselves wish to seek to rejoin, or whether they are measures that they are compelled to rejoin in order to secure a coherent package that is acceptable to the Commission and the other member states. In a nutshell, was this a deal made behind closed doors and conducted to a great extent, if not entirely, by officials, and to what extent does it reflect coalition politics?

We note that the 35 measures present only part of the picture. We ask the Government to complete the picture by making available to Parliament a list of all the pre-Lisbon measures that were subject to the United Kingdom’s block opt-out as of 1 December 2009, but no longer are because the UK has opted into amending or “repeal and replace” measures.

We should like the Government to explain why the

“solution concerning the Prüm Decisions and the Probation Framework Decision”

which was alluded to in the Council press release issued after the General Affairs Council on 24 June, is not mentioned or explained in Command Paper 8897, in the Minister for Europe’s written ministerial statement of 30 June informing Parliament of the outcome of the Council, or in the letter of 3 July from the Home and Justice Secretaries to me, as Chair of the European Scrutiny Committee. We note that details of the “solution” have emerged through press releases and reports and not through the provision of information to Parliament, and we want to know whether the Government regard that as an appropriate way for them to engage with Parliament.

We seek further information on the content of the deal that has been made, including any processes for consulting Parliament. We want to know how much the UK has invested so far in its preparations for implementing the Prüm decisions, and we ask the Minister and the Secretary of State to set out the Government’s current assessment of the utility of the Prüm and probation framework decisions.

We want to know about the reliability of some of the assumptions underlying the Government’s impact assessments, especially in regard to measures such as the prisoner transfer framework decision, when the capacity to operate the measures may be in doubt in some member states, or when the risk of legal challenge on human rights grounds—based, for example, on article 3 of the European Convention of Human Rights if prison conditions are regarded as inhuman or degrading, or on article 8 if there is interference with the right to respect for family life—could be regarded as significant.

We note that the possibility of adverse rulings by the Court of Justice does not feature among the “key assumptions/sensitivities/risks” in the impact assessments, although concerns about the extension of the Court’s jurisdiction to EU police and criminal justice measures are at the heart of the block opt-out.

We note that the Government claim to have taken into account the views expressed in our report, as well as those of other Committees. We want to know whether they accept the assessment of our Committee that the selection of measures to rejoin

“does not signify any lessening of UK involvement in the key measures governing law enforcement cooperation in the EU” ,

our assessment that many of the measures, because of their inherent significance and impact on individuals, are likely to be more susceptible to adverse judgments of the Court of Justice than the numerically larger number of measures that the Government do not propose to rejoin, and our assessment that there is

“little evidence of a genuine and significant repatriation of powers”.

So we are asking a significant number of questions, and I am putting them on the record now, because we are going to have another debate at a later time. We want to know the significance of the answers to these questions and weigh them up in the light of the general principles I put forward at the beginning, and we need to know about the timing of this debate. We want to know not only when it will take place, but what measures it will cover, as well as receive assurances about the motions that will be tabled. I ask the two Secretaries of State to listen to this very carefully—they are having quite an interesting conversation with one of the Whips at the moment. Would they be good enough to listen carefully? We want to know that the motions will be tabled with sufficient notice to enable Members to prepare amendments, and we reiterate the position on the form of the vote set out in our Committee report: there should be separate motions for each of the measures the Government propose to rejoin.

That is an important practical question about that debate, and I believe it is incumbent on the Government to answers the questions this afternoon so we have a clear picture of the way forward and so we know that this debate will not be just a waste of time, given that we have got another debate and another vote to come when all these measures are going to be finally decided. They are critical measures of great importance not only in terms of criminal justice matters, but also in respect of the whole question of the sovereignty of the United Kingdom and its rule of law.

--- Later in debate ---

[Keith Vaz]

That is a good point, but luckily I do not have control of the parliamentary day. These are representations we need to make, and we will see what the will of Parliament is. Let us recall some earlier ministerial words:

“I hope that today I have conveyed to the House not only the Government’s full commitment to holding a vote on the 2014 decision in this House and the other place, but the importance that we will accord to Parliament in the process leading up to that vote.”—[Official Report, 15 October 2012; Vol. 551, c. 35.]

It could be that Members want a vote on each of the 35 measures, but the Committee definitely wants a vote on the EAW, because we think it stands out in the business that the Home Secretary and Justice Secretary are currently discussing in the EU.

I welcome what is being proposed on Europol, and the Committee is a great fan of Rob Wainwright, the British head of Europol, who is doing a terrific job. Anyone who has visited Europol will have seen the work being done there, which is impressive and effective, and helps in the fight against organised crime. Europol works well with Interpol, although I know comments were made about Interpol. I and others have visited Interpol, which provides a huge benefit to cross-border action against serious and organised crime, illegal migration, people trafficking and all the other issues about which the House is very concerned. At the moment, there are 3,600 internationally active organised crime gangs operating across Europe. We cannot deal with those on our own, especially as far as cyber-crime is concerned; we have to deal with them through Europol. The Home Secretary is right to opt back in to those proceedings. I am not sure about one or two of the other Europol decisions, but if we are going to have further discussions, we will raise those at that stage.

[Sir William Cash]

In this context, does the right hon. Gentleman regard Albania’s candidacy for the European Union with equanimity? [Interruption.]

[Keith Vaz]

I apologise, but I could not hear the hon. Gentleman because the hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) was muttering so I was looking at him. I wonder whether the hon. Member for Stone would repeat that.

[Sir William Cash]

I just wanted to know whether, in the context of the issues of justice and home affairs and all the matters we are discussing today, the right hon. Gentleman regards with equanimity the proposed candidacy for EU membership of Albania, given its very serious crime, trafficking and all the rest of it.

[Keith Vaz]

Anyone can apply to join the club; we do not mind people wanting to apply to join. The problem is that there are serious issues for all applicant countries to address, and Albania has to recognise that there is a big problem with organised gangs operating from there. A huge amount of work still needs to be done before Albania becomes a full member of the EU, and the hon. Gentleman is right to focus on that. Let me touch on what we must do with applicant countries—here is a mea culpa, if I am allowed to make one on behalf of the previous Government. Those of us who were enthusiastic about enlargement of the EU—I still am—should have realised that once a country has joined we tend to allow it just to continue on its own, without providing the support—not financial support, but all the other support—needed to make it a full member of the EU. That is why we need to work with countries throughout this period. We always invite countries to join, but when they are in we leave them on their own, and that is a mistake. There is a lot of work to do on Albania, and I am sure the Albanians understand that and are going to have a lot of help along the way.

I am glad that we are opting in to the European criminal records information system, because it allows the courts to make the right decision on those who appear before them. We need to know when dangerous criminals are coming into our country, which is why it is good that we are opting in to that measure. I am sure the Justice Secretary welcomes the prisoner transfer agreement, because he has worked hard to get it going. Two of the top three countries in respect of the 10,695 foreign prisoners we have in our prisons, who are costing us £300 million, are EU countries—Poland and Ireland. Anything that helps us work with European colleagues to make sure that people go back to their country to serve their sentences is to be welcomed.

I welcome the progress that is being made. We must have another debate in Parliament. The process of scrutiny must continue, but at the end of the day there has to be a vote on these measures, as the Government have promised, and specifically on the EAW. That is the strong feeling of every member of the Home Affairs Committee, and I hope I have conveyed that to the House today.

--- Later in debate ---

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I am grateful to have the opportunity to follow my right hon. Friend the Member for Banbury (Sir Tony Baldry). The burden of his case appears to be that the efficacy of any extradition arrangements should override any other balanced argument about what might be affected by them. He demonstrates how easy it is to be seduced by expediency, convenience, efficiency and pressure from the police, who have only one objective, and that is not to create more of the stronger human rights or protections for citizens that they feel obstruct their task of maintaining law and order. That is why this House does not abdicate decisions on matters of constitutional importance or human rights to ACPO.

The Abu Hamza case took so long because we had lost control of our law and because we no longer control the human rights jurisprudence in our courts. The lesson of that case is precisely the opposite of what my right hon. Friend suggests. We should take control of our own laws by enacting laws from this place rather than abdicating authority to other places, least of all to foreign powers.

I was struck in this debate by how my right hon. Friend wanted to caricature the objections to the provisions, saying that anybody who is obsessed with the issue of Europe will stand up and object to anything. I am a trustee of the Parliament choir and last night we sang alongside our German counterparts, the Bundestag choir, in Westminster Hall. I stood shoulder to shoulder with a fellow bass from Germany and that is the kind of unity, brotherhood and friendship with our European partners that we want to demonstrate. It should be possible to discuss the practical arrangements we have with each other without being impugned as some kind of right-wing xenophobe, but I am afraid that my right hon. Friend fell into that trap.

Another striking point about this debate is that although the Chairman of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz), the former Chairman of the European Scrutiny Committee, the hon. Member for Linlithgow and East Falkirk (Michael Connarty), and the Chairman of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), each expressed support in principle, they were a great deal more chary about the consequences and effects of signing up to these arrangements than either of the Front-Bench speakers.

I take on board what my right hon. Friend the Home Secretary said about the additional protections that she thinks she has obtained for the exercise of the European arrest warrant, whereby we now have domestic legislation in place to deal with matters of disproportionality and dual criminality. That goes to the heart of the wider context of this debate as to whether we really control the terms of engagement that we are entering into with this instrument and whether this House has any control over the terms of engagement that our law has with our membership of the European Community.

This debate exposes the dislocation between the words of our political leaders and their actions. What we are discussing today feeds the discontent and disillusion that people feel about our politics and politicians and about the UK’s relationship with our EU partners. We have seen across the House the same old cosy consensus between those on both Front Benches that encouraged UKIP to such new heights in the recent European elections.

The very title of the debate, which says that it is a general debate on the UK’s justice and home affairs opt-outs, is misleading. The UK has already exercised our opt-outs from the justice and home affairs provisions under the Lisbon treaty. This debate is about whether the Government should opt back in to 35 of these measures. Unlike what was agreed—it pains me to say this—about these provisions at Lisbon by the previous Government, my right hon. Friend the Home Secretary is proposing a major and permanent transfer of power from the UK to the EU: a transfer of more sovereignty which, nevertheless, escapes a referendum under the European Union Act. This is yet another example of politicians seeking to provide reassurance to voters without actually meaning it. The transfer includes a permanent commitment to the notorious European arrest warrant, which is intended to remove the recourse of a citizen of the UK to the courts in the event of such a warrant, whatever UK legislation is place, with the new provisions themselves vulnerable to being overridden by the European Court of Justice.

The idea that any extradition arrangement we enter into with other EU states would necessarily be subject to the jurisdiction of the European Court of Justice is, in itself, an admission of how overreaching the European treaties have become. There are still parts of our law that are immune from the reach of the European Court of Justice. It should be possible to reach an agreement with the European Union that the European Court of Justice will not arbitrate in disputes between the United Kingdom courts and the European courts in such matters. The fact that there is an assumption that the European Court of Justice will preside over any dispute between the United Kingdom and the EU on any matter demonstrates how overarching the reach of the Court under these treaties already is. That goes to the heart of what we are tangentially discussing, which is the future of the UK’s relationship with our European partners.

[Sir William Cash]

I agree with everything my hon. Friend is saying. In the United Kingdom, as compared with all the other 27 member states, we are in a unique position. Our European Communities Act is a voluntary Act. We do not have a written constitution. We are able to make the changes that are necessary to regain our sovereignty. When the Prime Minister says that our national Parliaments are the root of our democracy, he knows, and so do the Government, that we still retain the right to be able to make the changes in order to extract ourselves from situations that we regard as not being in our national interest.

[Mr Jenkin]

I agree with the Prime Minister and with my hon. Friend on that point.

The Prime Minister recently told the “Today” programme that he wants to pursue a relationship with our European partners based on “trade and co-operation” and on being “an independent nation state”. I have to say that I cannot find any strand of consistency between the measures in this Command Paper and the aspirations expressed by my right hon. Friend the Prime Minister.

May I remind my right hon. Friend the Home Secretary, who is not in her place at the moment, of what we said in the House about the European arrest warrant when we were in opposition? My right hon. Friend the Justice Secretary, as shadow Home Secretary, said in 2009 that it “undermined civil liberties”. My right hon. and learned Friend the Attorney-General, as shadow Justice Secretary, said in 2008 that

“once such things are subject to the European Court of Justice and the Commission…the Government will lose all control over standing up for United Kingdom interests in these areas”.—[Official Report, 29 January 2008; Vol. 471, c. 176.]

He also pointed out that the European arrest warrant

“is very different from…an international treaty obligation that the United Kingdom could decide not to follow if it infringed the human rights of those affected. We will be surrendering the final say about that entirely to a supranational body.”—[Official Report, 29 January 2008; Vol. 471, c. 175.]

The Foreign Secretary, as shadow Foreign Secretary, chided the previous Government for not keeping their promises on the EU when he said:

“Time and again they have made promises that they would not hand over powers to Europe, particularly on justice and home affairs, and time and again they have done exactly that, not least through the treaty.”—[Official Report, 4 March 2008; Vol. 472, c. 1684.]

My right hon. Friend now has to eat those words.

The Conservative party manifesto of 2010 promised

“three specific guarantees—on the Charter of fundamental rights, on criminal justice, and on social and employment legislation—with our European partners to return powers that we believe should reside with the UK, not the EU.”

Why have we abandoned that? It was based on a speech the Prime Minister made when in opposition, in which he promised to negotiate the three guarantees, one of which was

“limiting the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level, and ensuring that only British authorities can initiate criminal investigations in Britain.”

Why have we abandoned that?

Much more recently, the Prime Minister wrote in The Sunday Telegraph on 16 March 2014 that one of the key changes he would seek in a renegotiation with the EU was:

“Our police forces and justice systems able to protect British citizens, unencumbered by unnecessary interference from the European institutions”.

Why have we abandoned that already? What did he intend to convey to voters in advance of the European elections? Surely not that he intended to do exactly the opposite a few weeks after the close of poll.

This year’s Conservative European election leaflet stated:

“We stand for a new relationship with the EU, bringing power back to Britain and away from Brussels”,

by, among other things,

“taking back control of justice and home affairs”.

If the UK intends to bring powers back in our renegotiation after the next election, it is a strange way for the Prime Minister to begin setting out his stall by giving up the very powers he said he would not give up.

That raises the question about the pressure on Ministers to continue supporting the process of EU integration because of coalition politics. My right hon. Friend the Home Secretary’s blank denial that there could be any alternative to the European arrest warrant underlines that she may well have fallen prey to such pressures. Notwithstanding the fact that the main party in power has a different policy and was elected having opposed Nice, Amsterdam and Lisbon, Whitehall appears to be continuing to implement those treaties according to a policy of business as usual. More powers are being transferred from the UK to the EU, with EU legislation encroaching ever more on our justice system, as though there had been no change of Government.

I do not doubt that my right hon. Friend the Home Secretary is acting on advice and with complete integrity, but it may help if I, as Chairman of the Public Administration Committee, remind the House how advice to Ministers works in a coalition. The civil service is enjoined to serve the Government as a whole, not individual party agendas or the different agendas of individual Ministers. It comes as no surprise, therefore, that no serious consideration has been given to any alternative policy of negotiating a permanent bilateral agreement on these matters, like the 170 or so sovereign states that are not members of the EU.

If my right hon. Friend the Home Secretary had been minded to ask for credible submissions to support such a policy and then to act on them, it is not only the status quo in her Department, the Foreign Office and elsewhere that she would have had to fight. She would certainly have had the support of the Conservatives in that—if we were a majority Government, I doubt she would have had the support to act in the way she is acting now—but in this coalition, the quad would have vetoed that policy. It is, therefore, hardly surprising, four years since her appointment, that little work has been done on any alternative policy.

--- Later in debate ---

[Sir Gerald Howarth (Aldershot) (Con)]

I am delighted to follow my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and, indeed, my right hon. Friend the Member for Banbury (Sir Tony Baldry)—a brother knight who had the responsibility of looking after my old school at Bloxham. I have always had great affection for my right hon. Friend the Member for Banbury, even though he has been somewhat unsound on European matters. No doubt he will be awarded some further grand honour by the Association of Chief Police Officers; I can see him as the guest of honour at a grand function, funded no doubt by G4S as there is no public money for such things.

I agree overwhelmingly with my hon. Friend the Member for Harwich and North Essex, particularly on the sovereignty of this Parliament. Whereas it is entirely right that we should take into account the evidence of those who are operating at the coal face, such as members of ACPO, it is our duty here in this Parliament to look at the wider issues and the wider consequences.

I suppose that I take as my text the joint report of the European Scrutiny, Home Affairs and Justice Committees of 26 March, which states in paragraph 1:

“Whether EU measures covered by the so-called ‘2014 block opt-out decision’ continue to apply to the United Kingdom and become subject to the jurisdiction of the Court of Justice from 1 December 2014 is a profoundly significant issue.”

That is absolutely right and I pay tribute to the Chairmen and members of those three Committees for their detailed and measured response on this important matter. I also pay tribute to my right hon. Friends the Home Secretary and the Justice Secretary, on whose shoulders rests the responsibility for charting a course that not only satisfies the coalition, but reconciles the need to protect our constituents and secure law and order in this country, and the need to preserve the rights of this sovereign Parliament.

I will be brief, Madam Deputy Speaker, because I have just two key concerns and they are very straightforward. The first is that, by opting into these measures, we will lock ourselves into the jurisdiction of the European Court of Justice in perpetuity. As my hon. Friend the Member for Stone (Sir William Cash) and my right hon. Friend the Member for Wokingham (Mr Redwood) said earlier, home affairs and justice was originally a third pillar matter that was decided on by sovereign nations and was not subject to qualified majority voting. My hon. Friend the Member for Harwich and North Essex gave a litany of quotations, not least from my right hon. and learned Friend the Attorney-General, on the implications of signing up to these measures and subjecting ourselves to the European Court of Justice.

We have no excuse any more. We have seen how the European Court of Justice has sought constantly to arrogate greater and greater powers, and even to overrule our Supreme Court. We would be failing in our duty to the people we represent if we did not spell out to them the very real risks that lay before them if we continue to provide the European Court of Justice with further powers. By doing so, we undermine not only our position in this Parliament, but the interests of our constituents; for they will have no one to whom they can turn if the European Court of Justice continues to exercise these responsibilities.

My second concern is about the political message that will be sent out by the Government’s decision to opt back into 35 of the measures. As we approach the next general election, Europe is assuming greater and greater significance. Those of us who have banged on about Europe, to use a popular expression, have done so because European matters pervade our national life at every level. The biggest concern that the public have today is immigration. Why is that? It is because the issue of immigration is overwhelmingly about our ability to control our own borders.

I am sure that I am not alone in finding on the doorstep that our constituents do not believe the Prime Minister when he says that he will hold a referendum if we are returned as a majority Government at the next general election. That is the case, notwithstanding his efforts in vetoing the fiscal treaty, cutting the EU budget, supporting the European Union (Referendum) Bill and, most recently, tackling the issue of the presidency of the European Commission. He has demonstrated his commitment to trying to resolve those matters and addressing the real concerns of the British people, but because he suggested before the last election that we would have a referendum if we assumed power, that has been constantly brought up as though he has failed to deliver on a promise. That referendum was conditional on the Lisbon treaty not having come into force by 2010, but it did come into force and therefore there was no point in holding a referendum.

As we talk about further negotiations with our European partners on reorganising Britain’s relationship with the EU, I agree with my hon. Friend the Member for Harwich and North Essex: this sends a completely different message. We have had the battle with Mr Juncker and expressed the Prime Minister’s rejection of ever-closer union and of the whole project, yet we will be portrayed by our opponents and by the public as having signed up to a raft of measures that touch on some of the most sensitive issues around the protection of our people, such as the ability to deport foreign criminals or return those who have fled the country but are charged with offences in the UK. People are bound to say, “We hear what you say about having a referendum, but when you’re faced with a practical decision on whether to opt back into home affairs and justice measures, you opt back in. We know what that means in terms of the European Court of Justice’s jurisdiction”.

[Sir William Cash]

Does my hon. Friend agree that there is a whiff of appeasement here? Basically, we do not want the jurisdiction of European institutions, including the Court, but on the other hand we do not want to resist their intrusion into our becoming more integrated into the European Union. When it comes to the balance between those two positions, the Government increasingly give the impression that they do not want to do that, but they go along with it in practice. That is a very dangerous path.

--- Later in debate ---

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

It is a great pleasure, as always, to follow my hon. Friend the Member for South Swindon (Mr Buckland). Although we do not see these issues in exactly the same way, he always provides a huge amount of food for thought, delivered with great style and panache. I apologise to Members on both sides of the House for arriving late to the debate. I gave notice to the Speaker. It was because of the two statements and an engagement that I could not get out of.

I want to start the substance of my comments by welcoming the opportunity for Parliament to scrutinise this issue. Whatever one believes about the substance, we are getting far more scrutiny in this whole area than we ever did under the previous Government. I also want to say that I fully support the Prime Minister’s overarching strategy. In his article in The Sunday Telegraph on 16 March, he made clear his intention to renegotiate Britain’s relationship with the EU, including, as he spelt out explicitly, in the area of crime and policing. I think that he is absolutely right.

It is worth noting that polling commissioned by Open Europe has found that this matter, far from being some ivory tower issue with no resonance or relevance to the public, was the public’s fourth highest priority for renegotiation. It is therefore right not only in principle, but in terms of resonance and relevance to the great British public. Likewise, the Prime Minister showed tremendous moral clarity in fighting not only for Britain, but for an important democratic principle in relation to the next EU Commission President. I feel that we need to do the same now.

I will avoid rehearsing points I have made in previous debates on the topic, which I know Ministers will have heard until they are blue in the face. I will instead confine my remarks to four key points. First, I believe that we must take a long-term view about the supranational direction of EU justice and home affairs policy, taking into account the evolution of policy and law, the ambitions of the Commission and the tidal direction of travel among EU member states. One does not have to buy into Viviane Reding’s dream of an EU-wide Minister of Justice to see that we are taking incremental steps, slowly but surely, like a slow tide, towards a single EU justice system. We can debate the pace, but I challenge anyone in the House to argue that that is not happening in practice.

One need only look at Europol and Eurojust. Currently, colleges of national police and prosecutors collaborate on important cross-border work, such as combating drugs, human trafficking and terrorism. Originally they co-operated on an essentially intergovernmental basis, but national democratic control is slowly but surely being whittled away before our eyes, like salami-slicing. If we look at the detail of the two new regulations on Europol and Eurojust, we see a strengthened role for the Commission, additional duties of co-operation on national Governments and, most importantly, the eroding of national Governments’ ability to decline requests for co-operation or to hand over data.

Eurojust’s revised mandate will provide substantial co-operation with the new EU Public Prosecutor’s Office, which will grow in time, leading to more and more pressure for it to consume functions currently undertaken by Eurojust. That is inevitable. We can see it happening bit by bit. If we were truly drawing a line in the sand, would we not make it clear now that we will not be opting into those new measures?

At the same time, if we opt into the basket of measures, as the Government propose doing, we will hand from the British Supreme Court to the European Court in Luxemburg the last judicial word on the scope of these swelling supranational powers and our corresponding national democratic duties. I, for one, am reluctant to see that happen because of the European Court of Justice’s record of judicial activism. In answer to my hon. Friend the Member for South Swindon, the difference is that judicial activism in the UK can be overruled by elected and accountable Members in this House. That democratic control is not available in relation to decisions of the ECJ, which are being extended bit by bit.

We saw that in the High Court last year, when Mr Justice Mostyn, hardly a right winger on the judicial benches, made it very clear that, to his great surprise, the ECJ had torn up our opt-out from the EU’s new charter of fundamental rights. We saw it with the ECJ’s attitude towards the extraterritorial application of the EU Tobin tax to Britain—although, those proceedings are still ongoing. And we saw it this year with the ECJ’s frankly ludicrous ruling on internet search engines, conjuring from thin air a “right to be forgotten.” That is important, because we can argue about the rights and wrongs of privacy and transparency, but that was patently judicial activism, and there is very little that we in this House can do about it.

[Sir William Cash]

We are talking about not just one judge but several judges who are making similar remarks. They are genuinely demonstrating a frustration with the overarching jurisdiction of the European Court. In the past few months, we have seen Lord Mance and several others making similar comments. They are conscious of the difficulties that are arising.

[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.

--- Later in debate ---

[Sadiq Khan (Tooting) (Lab)]

This has been a good debate. By the time we finish, it will have lasted for more than four hours. We have had some excellent speeches, and even some from hon. Members who are not lawyers or Chairs of Select Committees. All 12 speeches have done the important job of holding the Executive to account. They have all been passionate, demonstrating huge expertise on and experience of the issue.

Let me begin, as my right hon. Friend the Member for Delyn (Mr Hanson) did, by saying that I support most of what the Home Secretary said. Both she and my right hon. Friend made the point that it is no longer the case, if it ever truly was, that tackling crime and keeping the public safe can be achieved solely within our own borders. Crime and the criminals who perpetrate it do not abide by the borders of nation states. Both Front-Bench speakers gave examples of organised crime, terrorism, cybercrime, big drugs cases and serious sexual offences that crossed borders. The world is increasingly interconnected by the movements of people and the movement of trade, and that is all made even more complex as technology moves ahead at a fast pace. We need to ensure that the systems we have in place to prevent crime from taking place and catching those who commit it keep up with that fast pace.

[Sir William Cash]

rose—

[Sadiq Khan]

I have only a short time in which to speak, but I will give way later if I can.

We owe it to the victims of crime to do what we can to prevent further victims and to bring to justice those who have inflicted harm and misery on others. Part of that involves working closely with our European partners across the European Union to establish working relationships that allow each member state to tackle crime and the community as a whole to cut crime.

As I said, we have heard 12 speeches. The Chairs of the three Select Committees—the European Scrutiny Committee, the Select Committee on Home Affairs and the Select Committee on Justice—all reported extensively on the Government’s proposals and their concerns about the process, as well as some of their concerns about the substance of the measures. There has been criticism of the fact that the past two debates have been general debates without a vote. In particular, we have discussed whether Parliament will be given a vote on the Government’s decisions, how many votes there will be, when they will take place and the format in which they will take place, as well as whether each of the measures will be debated and voted on.

Let me be clear that the Opposition will consider all the measures on the basis of what helps the fight against crime. We will not allow anti-European Union feelings to cloud our view of what works. What is needed is a considered response on the issues raised by Back Benchers on the important role that European institutions can and do play in fighting crime.

The first speech was from the hon. Member for Stone (Sir William Cash), who reminded us of his “mild interest” in matters European over the past three decades. Towards the end of his speech, he read out a list of questions that he asked the Justice Secretary to answer. We also look forward to hearing the answers.

My right hon. Friend the Member for Leicester East (Keith Vaz) admitted to being a usual suspect. He asked—I am looking forward to the answer—whether there will be a separate vote on the European arrest warrant, about which his Select Committee has raised serious concerns. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) explained that this process has taught him how difficult it is to get blood out of a stone. He said that notwithstanding his concerns about the process, he supports the measures that assist in fighting crime.

My hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty) reminded us that the European arrest warrant is not perfect and gave an example of one of his constituents who is suffering as a consequence. He explained how it had helped to bring back to this country one of those alleged to have been involved in the 21 July bombings who was subsequently charged and convicted and is currently behind bars.

The hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) reminded us of his experience of seven Parliaments and expressed concern about the European arrest warrant. The right hon. Member for Banbury (Sir Tony Baldry) told us how thrilled he was to be sharing his birthday with his brother knights and the rest of us; the sad thing is that he was not joking. He also told us about the evidence from ACPO and its concerns about the European arrest warrant.

The hon. Member for Harwich and North Essex (Mr Jenkin) is also Chair of a Select Committee. I am sorry that I missed his performance in the choir last night with German colleagues. He reminded us—this is a really important point—that, unlike Lisbon, the opt-ins are permanent and therefore a transfer of power. He reminded us of what the Justice Secretary, when shadow Home Secretary, told us about his views on the European arrest warrant, and of what the Prime Minister and Foreign Secretary said about it, and asked whether they would now be eating their words.

The hon. Member for Aldershot (Sir Gerald Howarth) reminded us, and his party, of what political message it would send if we opted into all 35 measures. The hon. Member for Bury North (Mr Nuttall) expressed his concern about the European single market morphing into a European superstate. He was particularly concerned, like many other colleagues, about the European arrest warrant, and reminded us, as have many others, of what the Prime Minister said about it previously.

I must confess—I hope my Whips are not listening—that I always enjoy the speeches by the hon. Member for North East Somerset (Jacob Rees-Mogg). His 13 minutes were magnificent. I admit that I did not agree with most of what he said, but his speech was a tour de force in terms of quality. He was confident, as only he could be, that the trappings of office would not mean that the Justice Secretary no longer espoused all the views he held on the European arrest warrant only five years ago. We will wait to see what he says in five or six minutes’ time.

The hon. Gentleman reminded us that we are opting into not 35 measures, but 49, and referred to the other 14. He also wondered whether people who are considering voting Conservative would have confidence in a Prime Minister and a party who went into the election promising to repatriate rights from 2015 onwards if they were giving up rights in the preceding 10 months. His message to the Prime Minister, if I understood him correctly, is that there is a danger of having a backbone in opposition but being a jellyfish in government.

The hon. Member for South Swindon (Mr Buckland) expressed concern, as have many others, about judicial activism and too much intervention. He also pointed out that the fundamentals of British courts and justice are not necessarily threatened by the ECJ having jurisprudence.

The last speech was made by the hon. Member for Esher and Walton (Mr Raab), who has huge expertise in this area. He made four key points. He warned about a single European justice system and said that sooner or later we may end up with that destination if concerns are not expressed now. Again, he highlighted concerns about the European arrest warrant, and referred to individual cases.

Six of the 35 measures relate to justice, my area of responsibility, and the Chair of the Justice Committee touched on most of them: the data protection secretariat, the data protection framework decision, the application of the principle of mutual recognition to financial penalties, prisoner transfers, the European supervision order, and trials in absentia.

For the sake of brevity, I will touch on only one of those issues, namely prisoner transfers. From his time as a Minister in the previous Government, my right hon. Friend the Member for Delyn knows full well the importance of transferring foreign prisoners to their home countries to serve out their custodial sentences. He negotiated many of the agreements that are still in place. However, since 2010, only four further agreements have been negotiated by the current Government, compared with the 50 negotiated by my right hon. Friend and other colleagues in the previous Government. One in eight of those behind bars in England and Wales is a foreign national, and the Chair of the Home Affairs Committee reminded us that the cost to the British taxpayer is £300 million a year. That is why it is so important that we get this right.

The Home Secretary was right to refer to the case of the Latvian prisoner who was sent back to Latvia last month, but the numbers transferred are still pitifully low. When the Justice Secretary responds, will he tell us what progress he has made in persuading other countries to take their own prisoners back from the UK? I appreciate that Poland has a derogation, but the other countries do not.

I will not refer to the measures we are not going to opt into, except to ask whether the Government are considering having impact assessments on them. That question has been asked by Members of the other place. I appreciate that we now have impact assessments on those measures that we are going to opt into, but will there be impact assessments on those that we are not going to opt into?

Lots of colleagues have made interventions and 12 Members from both sides of the House have made speeches. They have asked many questions and I, like them, am looking forward to hearing some answers from the Justice Secretary.

[The Lord Chancellor and Secretary of State for Justice (Chris Grayling)]

This has been an important debate and I have listened very carefully to the strong opinions expressed. We have heard some passionate speeches and views. My hon. Friends the Members for Aldridge-Brownhills (Sir Richard Shepherd), for Harwich and North Essex (Mr Jenkin), for Bury North (Mr Nuttall) and for Aldershot (Sir Gerald Howarth) set out very strongly the views they hold and their concerns about these matters. We heard some contradictory views from my right hon. Friend the Member for Banbury (Sir Tony Baldry)—I wish him a happy birthday—and my hon. Friend the Member for South Swindon (Mr Buckland), who made an important point about unlimited jurisprudence and the way in which international treaties can take us into new areas beyond the intention of those who created them. That point was also made by my hon. Friend the Member for Esher and Walton (Mr Raab) on that very important issue.

It is always important to remember how we reached the position we are in. My hon. Friend the Member for Stone (Sir William Cash) and my right hon. Friend the Member for Wokingham (Mr Redwood) reminded us that, prior to the Lisbon treaty, these matters were all outside the jurisdiction of the European Court of Justice. They used to be intergovernmental matters. Of course, it was the previous Labour Government who took the decision to put us in the position we are in now. They sold us down this river in a way that should never have happened and left us in the legal position we are in today. It is really important that we as Conservatives always remember the previous Labour Government’s contribution. They accepted a treaty that was supposed to be subject to a referendum, but it never took place, and we in this House were asked to accept a package that I do not believe the British people wanted, although they were not given the opportunity to decide whether to accept it or not.

That treaty allowed the UK to decide whether to opt out of all the pre-Lisbon justice and home affairs measures, and then to seek to rejoin any that it believed were in the national interest. That process, which we went through last year, had to be carried out en bloc, which meant that it was clunky and could not involve negotiating and debating on a measure-by-measure basis, as with new measures. But that is what the treaty provides for.

Last year, after extensive discussions within the Government, we agreed that we would exercise that opt-out and seek to rejoin a list of 35 measures. We also agreed that as a Government we wanted to participate in measures that contributed to the fight against international crime, but did not wish to be part of those that sought to create a European justice system. As the House knows, I strongly disagree with the previous Commissioner and others in Brussels who want the creation of such a system.

It is particularly important for us in this country to maintain the distinctiveness of our justice system, not just because of the core role it has played in our society for 800 years but, to be frank, because of the important competitive advantage it gives our legal services sector around the world. That point was well made by my hon. Friend the Member for Esher and Walton. We are not going to be, and we should not seek to become, part of a Europeanised justice system. I do not believe in such a development, and I certainly do not want this country to be part of it.

The 35 measures we are discussing are mostly to do with international policing and the fight against international organised crime. As the Chair of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), pointed out, the changes made to the list have not altered the balance we discussed earlier this year. The measures are on the list because the Home Office, with its officials and those who work with them, has clearly advised the Government that they are essential to our work in fighting international crime in particular and are therefore in the national interest. That advice has formed a fundamental part of the Government’s strategy.

[Sir William Cash]

I understand very well where my right hon. Friend is coming from and I think I know where he would like to go, but may I put it to him that when he speaks about not wanting to Europeanise our justice system the truth is that by acquiescing in rejoining the measures—the 35 up to 49 measures—we are submitting ourselves to the jurisdiction of the European Court of Justice, which means doing exactly that? It will Europeanise our position irrevocably, unless in due course we repeal the legislation in this House unilaterally.

[Chris Grayling]

The Prime Minister set out some of the areas for renegotiation in his article earlier this spring. I hope and believe that a majority Conservative Government will be able to take forward such a renegotiation after the next general election, and the whole area of justice and home affairs needs to be part of that renegotiation process.

After we secured Commons approval for the opt-out—I was very pleased that the opt-out was exercised last year—we left time for the Select Committees to consider the proposed list before we embarked on negotiations with the Commission and other member states. I am acutely aware that the Select Committees said that Parliament was not involved early enough in the process, and we are now seeking to rectify that. The negotiations with the Commission reached a conclusion last month, though some matters are still outstanding in the Council and we are still to get final confirmation about the overall package. Once we reach that point, we can address the question about the process to be followed this autumn.

My hon. Friend the Member for Stone asked whether there will be another debate. Yes, of course there will. It would be inconceivable to have a vote without a debate. It is worth saying that the Home Secretary and I brought forward publication of the Command Paper because we both believed that it was necessary to give Parliament a further opportunity to engage with the issue. I regret the fact that some information appeared before we could bring it to Parliament. However, that it makes it all the more necessary to ensure that Parliament has access to such information now, and that is why the Command Paper was produced and this debate is taking place. We want to give hon. Members and the Select Committees sufficient time to consider that work before we get to the last lap of this process.

At this point, it is appropriate for the House to recognise the very hard work done on this issue by the Home Secretary. These were difficult negotiations, and success was by no means guaranteed. Her efforts in particular have been vital in getting us to where we are, and I am sure the House is grateful to her.

As I have said, we still have to complete some areas of discussion in the Council, so I cannot say that we have finally resolved all the issues in Brussels. However, this is still the opportune and appropriate moment for Parliament to look at where we have got to. We listened very carefully to the concerns expressed earlier this year by the three Select Committee Chairs, and I hope that they feel we have done the right thing by starting the dialogue with Parliament now, even though we have yet to complete the process fully.

As the House will know, the list of measures relating to my Department forms only a small part of what we are debating, but I want to touch on one measure that does not appear in the list. The House will recall that I have previously set out why we chose not to rejoin the probation measure. I explained that, to our knowledge, the measure has not yet been used, and that there are serious questions about how it might work. I do not believe that it is in our national interest to join the measure at this time and leave the European Court of Justice as the potential arbiter of such questions.

The Commission and other member states, by contrast, were keen for us to rejoin the measure because they see it as part of a package that accompanies the prisoner transfer agreement. Despite that, we have said that we will not join at this time.

Our concerns centre on the implications of the measure for our courts, prisons and probation system. What would happen, for example, if someone who had already been transferred breached their licence conditions? Unlike many other member states, the UK does not specify penalties for breaches of community orders or probation. The measure would allow member states to return to us the person we had extradited, but we could not do the same to them. That would place significant potential burdens on our courts and probation system.

Of course, all of us are very happy to see foreign national offenders returned to their home countries. I have no principled objection to sending prisoners back to serve their probation or community sentence in their home country. However, the measure appears to have potential problems that may materialise once it is in operation.

We have indicated to the Commission, as I said in our last debate on this matter, that we will take another look at the measure when there is enough evidence of it working and of its impacts to see whether there would be benefits to the UK in taking part. To support that decision, we will publish for Parliament an assessment of the potential impacts. Clearly, we will not agree to join this or any further JHA measure unless it is in our national interest to do so.

It is important to stress again that this debate has been designed to give the House an update on where we have got to and an opportunity to launch more detailed scrutiny of the process that we have gone through. It has been designed to address the concerns that were raised the last time we debated these issues in the House, which was back in April. We still have work to do in the European Council, in Brussels and in both Houses of Parliament. We will come back to this House when that work is complete. Of course, the two Departments will work closely with the relevant Select Committees to answer questions and discuss the issues in the weeks ahead.

I hope and believe that the House will accept that we have done the right thing in starting this conversation today, in setting out where we have got to in the negotiations and in setting out a process that will allow the kind of scrutiny that we were challenged over earlier in the year. I hope that the three Select Committees feel that we are taking things in the right direction. We have a bit of work left to do. This has been a valuable debate. These are serious issues and the House will have to reach a conclusion about our direction on them before too long. I hope that this debate will be the start of a valuable dialogue that helps Members on both sides of the House.

Question put and agreed to.

Resolved,

That this House has considered the UK’s Justice and Home Affairs opt-outs.

Deregulation Bill

William Cash Excerpts

Wednesday 14th May 2014 Commons Chamber

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

I will not speak for long as I am aware that one of my former colleagues, a fellow survivor of the Joint Committee on Parliamentary Privilege, the hon. Member for Stone (Mr Cash), also wishes to contribute.

On behalf of Members across the House, I thank the Clerks for their assistance on the Committee, particularly Liam Laurence Smyth, the Clerk of the Journals, who so skilfully kept most members of the Committee in order. I felt quite intimidated as a member of that Committee because we had such august parliamentarians as the hon. Members for Stone and for Harwich and North Essex (Mr Jenkin), the right hon. and learned Member for North East Fife (Sir Menzies Campbell), my hon. Friend the Member for Stoke-on-Trent Central (Tristram Hunt)—now promoted to shadow Education Secretary—and of course yourself, Madam Deputy Speaker, the most able member of the Joint Committee, who ensured that we kept things right.

Amendment 4 stands in my name and those of the hon. Member for Stone and others, and—as you know, Madam Deputy Speaker, having served on the Committee—it is the second attempt by a Joint Committee to get this legislation removed from the statute book.

Briefly, back in the mid-1990s, Mr Neil Hamilton, then a Member of Parliament, was seeking to sue The Guardian for defamation over what turned out to be true allegations about his cash links with Mohamed Al-Fayed. As I am sure the whole House knows, under parliamentary privilege Members are not allowed to use parliamentary proceedings in a civil or criminal case. Mr Hamilton persuaded the then Conservative Government to introduce a clause that allowed a Member of Parliament to waive their privilege, so that they could use parliamentary proceedings as evidence in a defamation case when suing a newspaper. However, it was done in such a way that a newspaper could not also seek to have parliamentary privilege waived. That created an unfair playing field and, frankly, was done to help Mr Hamilton, who it then turned out was a liar and a crook—that is probably why he is a member of UKIP these days. The Joint Committee in 1999 and again last year recommended that the measure be taken out of statute because it was unfair on newspapers and an abuse of privilege.

Obviously, the amendment is supported by the Opposition, and my hon. Friend the hon. Member for Wallasey (Ms Eagle) made clear our support last Thursday during the debate on parliamentary privilege. I welcome the fact that the names of the Solicitor-General and the Deputy Leader of the House now appear next to the amendment. I assume that they speak for both parts of the coalition and that the Government will be addressing the issue. To conclude, this is about silly legislation that should never have been introduced, and I welcome the fact that the Government are taking the Joint Committee’s recommendation on board.

[Mr William Cash (Stone) (Con)]

I am most grateful to you, Madam Deputy Speaker, for your service on the Joint Committee on Parliamentary Privilege along with me and the hon. Member for Dunfermline and West Fife (Thomas Docherty), not to mention the litany of others—the hon. Gentleman has already mentioned them, so I do not need to. Amendment 4 is necessary, and I will refer to articles 163 to 170 of the Committee’s report, which include our recommendations for the repeal of section 13 of the Defamation Act 1996, just to get that on the record and make it easier for people to follow what is being said—we do not have much time to go into all the ins and outs.

The hon. Gentleman has explained the background to this issue, but I will add one or two further points. As my hon. and learned Friend the Solicitor-General stated, the proposal was endorsed by the 1999 Joint Committee, and most recently by the 2013 Joint Committee, in your presence, Madam Deputy Speaker. The 1999 Joint Committee stated that,

“the enactment of section 13, seeking to remedy a perceived injustice, had created indefensible anomalies of its own which should not be allowed to continue”.

That is why it recommended that section 13 be repealed. The fundamental flaw identified by the 1999 Joint Committee was that,

“the section undermined the basis of privilege: freedom of speech was the privilege of the House as a whole and not of the individual Member in his or her own right, although an individual Member could assert and rely on it.”

The 1999 Committee noted that,

“the anomaly that section 13 was available only in defamation proceedings and not in any other form of civil action”

or criminal action. The Committee pointed out that,

“since the exercise of section 13 is a matter of individual choice, where two people are involved in the same action, one may choose to waive privilege and another may not.”

The 1999 Committee recommend that,

“the mischief sought to be remedied by section 13 of the Defamation Act 1996 should be cured by a different means: the replacement of section 13 with a short statutory provision empowering each House to waive Article 9 for the purpose of any court proceedings, whether relating to defamation or to any other matter, where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability.”

That approach was supported by Lord Lester of Herne Hill, and by Dr Adam Tucker and Geoffrey Lock, a former head of the research division in the House of Commons Library.

The Newspaper Society opposed any discretionary power to waive privilege, the use of which would be unpredictable and retrospective. It argued that,

“the power of waiver could create a chilling effect, by the mere threat or possibility of its use, which would be detrimental to openness of debate and press reporting of proceedings in Parliament.”

In its response to the Government consultation, the legislative council of Western Australia argued that,

“it was preferable for privilege not to be waived for any reason, in order to avoid the potential for the waiver being used for purely political purposes.”

Our Clerk of the House of Commons, the distinguished Sir Robert Rogers, who is sadly retiring, told us that his preference would be for the repeal of section 13, “without replacement”. The Media Lawyers Association took the same view.

In evidence, the Government told the 2013 Committee:

“There are clearly problems with Section 13 of the Defamation Act. It is at odds with the principle that freedom of speech is a privilege of the House, not just individual members and it can create an imbalance where one party to proceedings can choose to use the parliamentary record but the other cannot.”

At that time, the Government told us that,

“the Government is not aware of any instances in which anyone has used the power of waiver and as such it would not appear to be a pressing priority to repeal Section 13.”

On reflection, the Government have decided that repealing section 13 is a good idea. We are grateful to them for following our recommendation.

I ought to say that, initially, there was an attempt to include the proposal in the Criminal Justice and Courts Bill but, as a result of consultation, members of the Committee agreed that it was better to include it in the Deregulation Bill, which is why we are debating it. The Committee recommends the repeal of section 13 of the Defamation Act 1996. That is all I have to say for the time being.

[The Solicitor-General]

I commend the wise words of my hon. Friend the Member for Stone (Mr Cash). He summarised the position extremely well and I am glad that the proposal is going ahead.

I should tell my hon. Friend the Member for Shipley (Philip Davies) that the Government will bring forward proposals for consultation when the court case, which is set down for later this year, has concluded. I ask him not to press his amendment to a Division on the basis that the Government are taking the issue seriously.

In response to the hon. Member for Newcastle upon Tyne Central (Chi Onwurah), the coherent strategy set out in the connectivity paper covers all the main issues: electronic programme guides, PSB prominence, bundling, switching off content, zero net fees, investment policy, child protection on the internet, internet access and comprehensive programme issues. It is a proper document, and she unfairly belittled it.

The only other point I wanted to make before commending the amendments is on the Law Commission, which does a marvellous job. I should like to put on the record the Government’s gratitude to Lord Justice Lloyd Jones, who heads it, and all the people who work for it. It is a marvellous institution.

Amendment 58 agreed to.

Schedule 18

Legislation no longer of practical use

Amendments made: 75, page 159, line 32, at end insert—

‘Merchant Shipping Act 1988 (c. 12)

The Merchant Shipping Act 1988 is repealed.’.

This amendment repeals the Merchant Shipping Act 1988 in the United Kingdom. The only operative provision is section 37. Section 37 provides for the disapplication of the requirements of the Coast Protection Act 1949, which has been repealed.

Amendment 59, page 162, line 2, at end insert—

‘The Milk (Cessation of Production) (Northern Ireland) Order 1985 (S.I. 1985/958 (N.I. 9)) is revoked.’.

This amendment revokes the Milk (Cessation of Production) ( Northern Ireland) Order 1985. All schemes made under this Order were revoked in 2007, and it is not intended to make any further schemes under it. The underlying European milk quota system is intended to cease with effect from 31 March 2015.

Amendment 4, page 162, line 22, at end insert—

Part 7A

Civil Law

Defamation Act 1996 (c.31)

34A Omit section 13 of the Defamation Act 1996 (which allows an individual litigant in defamation cases to waive the ban in Article IX of the Bill of Rights on proceedings in Parliament being impeached or questioned in court).’.

The Joint Committees on Parliamentary Privilege in 1999 and 2013 both recommended the repeal of this hardly used provision.

Amendment 60, page 163, line 12, at end insert—

Part 9

Housing

Housing Act 1988 (c. 50)

36 (1) Paragraph 3 of Schedule 18 to the Housing Act 1988 (saving provision in respect of repeal of sections 56 to 58 of the Housing Act 1980) ceases to have effect in relation to tenancies of dwelling-houses in England.

(2) Accordingly, in that paragraph of that Schedule, after “tenancy” insert “of a dwelling-house in Wales”.’.—(Oliver Heald.)

This amendment provides that the saving provision in paragraph 3 of Schedule 18 to the Housing Act 1988 ceases to have effect in relation to tenancies of dwelling-houses in England (and so will continue only for Wales). This is because no assured tenancies under section 56 of the Housing Act 1980 remain in existence for England.

New Clause 2

Requirements to wear safety helmets: exemption for Sikhs: Northern Ireland

‘(1) Article 13 of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1990 (S.I. 1990/246) is amended in accordance with subsections (2) to (8).

(2) In paragraph (1), for “on a construction site” substitute “at a workplace”.

(3) In paragraph (2), in sub-paragraph (a), for “on a construction site” substitute “at a workplace”.

(4) In paragraph (5), in the opening words, for “on a construction site” substitute “at a workplace”.

(5) After paragraph (6) insert—

“(6A) This Article does not apply to a Sikh who—

(a) works, or is training to work, in an occupation that involves (to any extent) providing an urgent response to fire, riot or other hazardous situations, and

(b) is at the workplace—

(i) to provide such a response in circumstances where the wearing of a safety helmet is necessary to protect the Sikh from a risk of injury, or

(ii) to receive training in how to provide such a response in circumstances of that kind.

(6B) This Article also does not apply to a Sikh who—

(a) is a member of Her Majesty’s forces or a person providing support to Her Majesty’s forces, and

(b) is at the workplace—

(i) to take part in a military operation in circumstances where the wearing of a safety helmet is necessary to protect the Sikh from a risk of injury, or

(ii) to receive training in how to take part in such an operation in circumstances of that kind.”

(6) In paragraph (7)—

(a) omit the definitions of “building operations”, “works of engineering construction” and “construction site”;

(b) before the definition of “injury”, insert—

““Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006;”;

(c) at the end insert—

““workplace” means any premises where work is being undertaken, including premises occupied or normally occupied as a private dwelling; and “premises” includes any place and, in particular, includes—

(a) any vehicle, vessel, aircraft or hovercraft,

(b) any installation (including a floating installation or one resting on the seabed or its subsoil or on other land covered with water or its subsoil), and

(c) any tent or moveable structure.”

(7) In paragraph (8), in sub-paragraph (b), for “on a construction site” substitute “at a workplace”.

(8) In the heading, for “on construction sites” substitute “at workplaces”.

(9) Article 13A of that Order (protection of Sikhs from racial discrimination in connection with requirements as to wearing of safety helmets) is amended as follows.

(10) In paragraph (1)—

(a) in sub-paragraph (a), for “on a construction site” substitute “at a workplace”;

(b) in sub-paragraph (b), for “on such a site” substitute “at such a workplace”.

(11) In paragraph (3), for “Paragraphs (7) and (8)” substitute “Paragraphs (6A) to (8)”.’.—(Oliver Heald.)

This new clause extends the scope of the exemption under Article 13 of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1990, currently limited to construction sites, so that turban-wearing Sikhs will be exempt from legal requirements to wear a safety helmet in a workplace of any kind (subject to exceptions set out in Article 13(6A) and (6B), as amended).

Brought up, and read the First time.

Justice and Home Affairs Opt-out

William Cash Excerpts

Monday 7th April 2014 Commons Chamber

[Mrs May]

I will refer to one or two specific measures in relation to that, but as I have just indicated to the House, the Government have exercised the block opt-out. It is open to us to seek to rejoin any of the individual measures covered by it. If we do not negotiate to rejoin those measures, we will no longer be part of them from 1 December 2014.

When I came to the House last July, I explained that my ministerial colleagues and I had concluded that a number of the measures subject to the opt-out decision added value in the fight against crime and the pursuit of justice, and that it would therefore be in our national interest to seek to rejoin them. We believe that there are only a limited number of such measures—we set those out in Command Paper 8671 for the House to see before it voted on our decision to exercise the opt-out.

They were always separate decisions, and the Government have always been clear that Parliament and its Committees should have adequate time to scrutinise both. To make that explicit, we listened to the concerns of hon. Members, and particularly to the Chairmen of the Committees to which I have referred, and amended the motion for last July’s debate to invite the European Scrutiny Committee, the Home Affairs Committee and the Justice Committee to submit reports before the Government opened formal discussions with the European Commission, the Council and other member states.

[Mr William Cash (Stone) (Con)]

I endorse what the Chairman of the Home Affairs Committee said with one qualification. It is not just a question of whether Parliament is given the opportunity to deliberate before decisions are taken behind closed doors, but a question of whether Parliament is, in effect, being asked to rubber stamp something that has already been decided in negotiations behind those closed doors. The problem is one of the matter therefore being hidden from the searching gaze of the public and Parliament itself.

[Mrs May]

Of course, by definition, the Government’s role is negotiating with the parties I have just indicated—the Council, the Commission and the member states—on those measures to which they agree it is possible for us to opt back into. That process, which takes some time, has been put in motion. I will describe where we are a little later but, by definition, the process must be undertaken by the Government. We have been clear that we will come back to Parliament, which will have the opportunity to debate and vote on the package of measures.

As my hon. Friend the Member for Stone (Mr Cash) is well aware, we have indicated the measures on which we wish to opt back in. The discussions are in place with the European Commission and the other member states as to their views—whether or not they wish the UK to opt back in—and any other matters they wish to discuss with us as part of that negotiation.

--- Later in debate ---

[Mrs May]

The argument I make in relation to the European arrest warrant is on both those aspects of its operation. I have just cited a case where there was an issue of whether an individual would have been able to be extradited back to the UK had we not had the European arrest warrant. There are other cases where it is a matter of fact that the European arrest warrant has been able to be exercised more quickly on average than extraditions were before the EAW was in place. So it is not just that there are people who would not come back unless we had the EAW; it is that it also smoothes the process and makes this quicker and brings people here to justice quicker.

[Mr Cash]

The Home Secretary has given us a number of indications of concerns that have arisen in some member states. Is she conscious of the fact that the French have said the UK requirements risk imposing an undue burden on other member states, that the Germans raise serious doubts about compatibility with European law, that Spain says the Legal Service should give its opinion and that the Dutch have said that there are a number of fundamental and practical problems? Is it not all rather running into the sand?

--- Later in debate ---

[Mr William Cash (Stone) (Con)]

Before I get into the substance of the arguments on the matter before us, I would like to refer to the letter that the Chairmen of the European Scrutiny Committee, the Home Affairs Committee and the Justice Committee received yesterday. It is addressed to each of us and it comes from the Secretary of State for Justice and the Home Secretary. It begins by saying that they would like to express their gratitude for the continued work of our Committees with regard to the 2014 opt-out decision. It then says:

“We have noted and considered your joint report. We deeply regret your collective view that the Government’s engagement has not been satisfactory on this matter. However, our view on the Government’s engagement with Parliament has not changed.”

There we have it. The letter goes on to say:

“As you will know, we intend to hold a general debate on Government time on 7 April”—

that is today. The letter continues:

“For the avoidance of doubt, we reaffirm our commitment to hold a second vote in both Houses of Parliament before making a formal application to rejoin any measures.”

However, it may be noted that that does not state that the second vote would take place before the negotiations have been finalised. I will come on to that in my subsequent remarks.

The difficulty that we face is that this matter has, to a very considerable extent, been a poor substitute for the debate that the European Scrutiny, Home Affairs and Justice Committees requested. This is the first time ever that all members of three independent, all-party Select Committees have unanimously agreed to a joint report on an unprecedented scale. The debate would give Parliament a genuine say and vote in determining which measures the Government should seek to rejoin before—I repeat, before—embarking on negotiations with the Commission and Council.

The motion that we are invited to support today merely refers to the consideration of the United Kingdom’s

“2014 justice and home affairs opt-out decision.”

That decision was considered in Parliament last July, when the Government secured a majority for their recommendation to exercise the UK’s block opt-out of around 130 pre-Lisbon police and criminal justice measures. The real question for us now, surely, is what the Government—a coalition Government who are largely taking account of considerations on EU matters which have been pushed forward by members of the Liberal Democrat party—will do about the 35 matters that are now up for rejoining.

The Prime Minister formally notified the Council of the UK’s decision to exercise the block opt-out on 24 July 2013. All the measures subject to that block opt-out will, as a result, cease to apply to the United Kingdom on 1 December 2014, unless, crucially, the United Kingdom submits a formal application to rejoin some of them.

Command Paper 8671, which was published merely a matter of days before the debate last July, includes a list of 35 measures that the Government say they seek to rejoin. I have to say, without prejudice to my differences of opinion with the shadow Home Secretary, that some of the cases that she put forward demonstrate that the issues are, in many instances, not quite as substantial as some might have imagined.

The motion that the Government wanted the House to approve last July would have endorsed the Government’s recommendation to enter into formal negotiations with the Commission and the Council on the list of the 35 measures, pre-empting any further consideration of the content and significance of those measures by the House and its Select Committees.

The Home Secretary came to the Floor of the House and I said at the time that I thought she was making the problem considerably worse by what she was saying. My intervention as Chairman of the European Scrutiny Committee, together with the Chairmen of the Home Affairs and Justice Committees, ensured that the House had the opportunity to consider the matter further, and was informed by the reports that all three Committees undertook to produce.

The need for further detailed consideration by Parliament cannot be doubted. The report by my Committee concluded that the list of measures was “incoherent”, and that it bore all the hallmarks of coalition politics rather than a serious analysis of the merits of each measure, or a careful balancing of the benefits of participation in extremely sensitive areas affecting fairness, liberty and justice, which are and should be accorded to individual United Kingdom citizens, and that the benefits of that participation should be set against the risks associated with accepting the jurisdiction of the European Court of Justice.

[Mr Redwood]

Will my hon. Friend confirm that this is a desperately serious matter, because if we opt in to any of these things, those subjects are no longer under the control of the House and the British people?

[Mr Cash]

Indeed, and not only that. Those people are no longer able to have recourse to our courts system in the same way that they would have done because the European Court of Justice, once it has made an adjudication and a judgment, binds our Supreme Court. Moreover, under section 3 of the European Communities Act 1972, it also binds this Parliament. That is why, with respect to the charter of fundamental rights, we said in a report that we published only last week that the situation was so serious. We voluntarily entered into the Act in 1972, and I emphasise the word “voluntarily” because what is entered into voluntarily can be adjusted later. Those two features led us to conclude, in respect of the conflict on the perception of the charter of fundamental rights, that the then Prime Minister, who specifically stated on 27 June 2007 that it was absolutely clear that the charter of fundamental rights was an opt-out, was wrong. Furthermore, he was not only wrong but, in effect, contradicted by the Attorney-General of the time when he gave evidence to us only a few weeks ago.

The consequence of this, which is extremely serious, is that we have an Act of Parliament that is covered in confusion, with some judges saying one thing and other judges saying another. As there is no doubt that the charter applies to the United Kingdom, the only way of dealing with this is not, with respect to my right hon. Friend the Secretary of State for Justice, by having another legal challenge, as he proposes, but by amending the 1972 Act, because the situation is so serious that we have to bring in primary legislation in order to get it right in the interests of the people of this country. All the rights contained in the charter overlap with rights of the sort that people in this country, as citizens of the United Kingdom, would expect to be accorded to them. These are the kinds of matters that arise in respect of what we are considering as a result of the whole question of the 35 measures.

[Chris Bryant]

The hon. Gentleman is right. One of the key issues now is how many opt-ins there should be. I would probably err on the side of there being more than 35. He probably errs on the side of there being fewer than 35. The Commission might want to say that there have to be 53, or none. Who knows what the end result of all this will be? What I do not understand—perhaps he will be able to explain it, because he knows the Home Secretary’s mind better than I do—is why on earth the Government would not want an amendable motion to be presented to the House before they start the negotiation so that they know beforehand that they have Parliament behind them.

[Mr Cash]

I am rather attracted to the idea of an amendable motion. Indeed, in effect, I have just said so myself. If we have a vote beforehand, the coalition Government will know what Parliament thinks.

The Home Secretary clearly indicated that the Government must have a free hand in entering into these negotiations. In an intervention, I mentioned the complications involved in this and its rejection, or apparent rejection, by several countries. I referred to Spain, Germany, France and Holland, and there are others that say that the matter should be put to a referendum. The situation is so complex, and running so far into the sand, that it would be a good idea, in these very special circumstances, to discuss the question of a block opt-out. It is very important that Parliament should be given the opportunity to vote on an amendable motion before the negotiations are concluded. It is particularly important as we get down to discussing the finer detail of precisely what should be done in the interests of fairness, liberty and justice for individual citizens, who will be bound by these Court decisions against which there will be no appeal. Unless this is subject to an amendment of the 1972 Act, there will be no way of retrieving the situation to protect those citizens.

[Sir Gerald Howarth]

I am very exercised about the application of the role of the European Court of Justice. As my hon. Friend will know, I asked the Home Secretary to what extent the safeguards she has secured with regard to the European arrest warrant will be respected by the ECJ. Does he have a view on that?

[Mr Cash]

Yes, I am deeply concerned about the matters that my hon. Friend raises. Indeed, the whole question of the role of the European Court of Justice is a matter of great concern, not only in this country but in many other countries of the European Union. I will not go all the way down the route of discussing the role of the Court. However, there are issues about who is qualified to be members of the Court and whether members of our own Supreme Court are entirely satisfied with the nature of the decisions that come out of it, just as they are concerned about questions regarding the European Court of Human Rights.

The reports of all three Committees are tagged to today’s debate, as is a joint report castigating the Government for their refusal to allow Parliament a debate and vote on the measures the United Kingdom should seek to rejoin before negotiations begin with the European Union institutions.

[Dr Huppert]

I presume the hon. Gentleman would accept that it is much harder for someone to negotiate when their hands are tied. Will he reassure me that he is not trying to ensure that we leave everything by making all the negotiations so difficult that they simply cannot be brought home? Is that what he is trying to achieve?

[Mr Cash]

What I am saying is that voting in this House is a test of our democracy. We have already had ample opportunity to consider the ramifications of the block opt-out and we now know the 35 matters in question. Given the importance of those issues to UK citizens, those who represent their individual constituencies in this House should now have the opportunity to vote on them. That is a matter of principle and it is also a matter of democracy. Once the decisions become irrevocable, the reality is that they will be binding, through the European Communities Act 1972, in a way that would not be the case if this were a general debate about home affairs policy. This debate is tied to the role of the European Court of Justice, against which there is no appeal.

Why have the Government set their face against an open, transparent and informed debate and vote on these measures before negotiations are concluded? In the absence of any convincing explanation from the Government—I say with great respect to the Secretaries of State that we have not had one—we are compelled to conclude that the risk of unravelling a carefully crafted coalition deal weighs more heavily than the desire for democratic accountability. Such an approach is inimical to this House’s European scrutiny system, which is based on our Standing Orders and on early analysis and assessment of the legal and policy implications of EU policies and legislation so that Parliament has a genuine opportunity to influence not only the Government’s position in negotiations, but their outcome as well.

In this case, however, the position is reversed. As I said in an intervention, Parliament will simply be asked to rubber stamp the outcome of negotiations that are being held behind closed doors and hidden from the searching gaze of the public and Parliament. Negotiations are being held behind closed doors not only by the Council of Ministers and the European institutions, but by the coalition itself. We do not know the basis on which these decisions have been reached. It is a double whammy.

[Pete Wishart]

The hon. Gentleman needs to forget about the Liberals, because there is a big elephant sitting in the room and its name is Nigel. Does the hon. Gentleman think that growing support for the UK Independence party has been a factor in the way in which this process has evolved?

[Mr Cash]

I do not think so. The driving force behind the arguments being made by the Conservative part of the coalition from the Back Benches is based on objective analysis in the interests of democracy, transparency and accountability in Parliament. Mr Farage cannot deliver anything, because he does not have one Member of Parliament. He cannot change one word of legislation—he can do nothing about any of this. I know that the situation is uncomfortable for the Secretaries of State at this moment in time, but I know for a fact that they will agree emphatically that the United Kingdom Independence party can achieve absolutely nothing. They know perfectly well that Conservative Back Benchers can achieve something. As in relation to many other European matters, Conservative Back Benchers can, by doing what we are doing now—working towards, we hope, a listening Government and listening Secretaries of State—achieve the results that we need, in the interests of the country as a whole. I hope that that answers the hon. Gentleman’s very useful question.

[Mr Redwood]

So do not make that mistake.

[Mr Cash]

Let us be in no doubt about that, as my right hon. Friend and distinguished colleague says—and more power to his elbow.

Let us for a moment return to first principles and remind ourselves why the United Kingdom, alone among member states, has a block opt-out. In this context, it is worth remembering that we do not of course have a written constitution, and that gives us flexibility, unlike every other member state. We are not therefore insular or isolationist in taking such a view; as I know both Secretaries of State will appreciate, we are exercising our democratic right to express our views in a free forum—this House of Commons, to which we are elected to represent our constituents—and, as Chairmen of three significant Select Committees, we have worked together on an all-party basis to agree a view on a matter of such importance.

United Kingdom Governments of all political persuasions have been wary of extending the full jurisdiction of the European Court of Justice to EU police and criminal justice measures—that has been true of Governments of all parties—because they have recognised that conferring primacy on a court beyond the jurisdiction of the United Kingdom, and of our Supreme Court and of this Parliament, is a very profound and grave constitutional step.

Whatever views may be expressed in the debate—some will perhaps advocate opting back in to a far wider range of measures, while others will say, “None at all”; and when it comes to the vote, there may be splits and fragmentations in political parties on both sides of the House—I say to the Secretaries of State that surely we can all agree on the significance of the negotiations on which the Government are about to embark and the vital need for Parliament to have a genuine say and vote at the right time, before the negotiations have been concluded, on a matter of profound practical and constitutional significance, which bears very heavily on the liberty of the subject. What matters now is not what we have opted out of, but what measures we propose to rejoin. I ask my right hon. Friends to consider this very carefully: this is the time for the Government to think again.

On the basis of the leaks and information about the discussions that come through to us in various shapes and forms, I have referred to what has been happening in many countries throughout the European Union, and I understand that very little headway has been made in negotiations so far. My right hon. Friend the Home Secretary shakes her head. Perhaps she would like to get up and tell us that everything is going fine.

I trust that today’s debate will cause the Government to think again and allow Parliament to vote on these important measures before the negotiations are concluded. This matter of principle needs to be settled not after the horse has bolted, but now, so I tell my right hon. Friends that this is the moment. This serious matter is of grave concern to many of our citizens, and this is the time to think again.

--- Later in debate ---

[Dr Huppert]

My hon. Friend is right on the technicality that there would have been a second vote, but the principle ensconced in both was to have military intervention without the UN approval that some of us wanted. However, that is not the subject at the heart of this debate.

I share the concerns expressed about whether the whole effort has been worth while. The shadow Home Secretary is not in her place. I do not always agree with her, but I did agree when she said that the things we will not remain opted in to are, generally speaking, the less important ones. They are the ones that do not matter; they are more trivial. That is by design, but it also means that the entire balance will not have been changed as a result of this. The Home Affairs Committee agreed unanimously that if the Government proceed with the option as proposed, it will not result in any repatriation of powers. Some of us think that is a good thing—that collaboration and co-operation are worth having—but others have concerns. Has it been worth the huge amount of parliamentary, ministerial and official time and effort in negotiating with partners to achieve what will probably—hopefully—be a very small effect?

It is important to highlight why this matters. We have had a great deal of discussion about process, but we should remember why it is important. Our work with our partners in this area of policing and criminal justice is one of the great benefits of European Union membership. There are other benefits—on trade, free movement and a stronger voice on the international stage—but that ability to share information to catch UK criminals on the run and to bring them back to face justice at home, and to fight international terrorism and crimes such as child abuse, come from our participation in the European Union’s justice and home affairs measures. Europol is an incredibly important element in the fight against organised crime. We would suffer badly if we lost that. Cases such as Operation Rescue involved huge co-operation with 12 other countries, with Europol playing a critical role in intelligence and analytical support which resulted in the safeguarding of at least 230 children worldwide, 60 of whom were in the United Kingdom, and the arrest of more than 180 offenders, 121 of whom were arrested in the UK. That is the sort of thing that would be put at risk by those who are simply allergic to anything that mentions the word “Europe”, and there are a number on the Conservative Back Benches, though fortunately not on the Front Bench. We do take that lead. It is not a coincidence that the head of Europol is a Briton.

[Mr Cash]

The hon. Gentleman raises the question of those people for whom the word “Europe” evokes all kinds of spectres. [Interruption.] Well, he got very close to it. He is only repeating Bismarck in the late 19th century, when he said, “Whenever anybody uses the word ‘Europe’, I then realise what they are up to.”

[Dr Huppert]

I thank the hon. Gentleman for that enlightening quote. He can choose to describe himself how he likes.

It is strange that the Home Office, while trying to stay within Europol, has created ambiguity about the relationship with Europol by, for example, not opting in to other measures. I want the Government to have flexibility on these things so that they can take many of the other Europol measures and not be bound too tightly by the exact details of a vote here. It will make it very strange. As the Home Affairs Committee highlighted, that runs contrary to the logic of the Government’s stated policy.

We get huge benefits from the European arrest warrant. The Association of Chief Police Officers—it nears the end of its career but it continues for now at least to speak for senior police officers—has highlighted that relying on alternative arrangements to the European arrest warrant

“would result in fewer extraditions, longer delays, higher costs, more offenders evading justice and increased risk to public safety.”

That is what has to be set against the allergy that many have to this issue.

Keir Starmer, former Director of Public Prosecutions, said that failure to opt in could lead to an

“uncertain, cumbersome and fragmented approach, which is likely to have a damaging impact on the prosecution of crime in England and Wales.

That is what has to be addressed by those who want us just to leave the EAW. I am glad that Ministers have taken a sensible line on this. We need to reform the European arrest warrant, but we are better off for having it. For example, the Government’s Command Paper highlights that an extradition now takes on average three months, whereas it takes about 10 months for countries that are not covered by the EAW. That is a substantial change, and some people would not be extradited at all. Those who want to go back to the old framework would slow down the process of justice in some cases and stop it in others.

Of course, we need to make some changes to the EAW, and I pay tribute to the principled stance taken by the hon. Member for Esher and Walton (Mr Raab), who I do not think is allergic to this. He has some detailed, thought-through concerns about a number of aspects, and I hope we will hear thoughtful comments from him later.

Changes have been made. For example, the Anti-social Behaviour, Crime and Policing Act 2014 made some changes to extradition to ensure that our courts can take greater account of these matters, and the judge will have to consider the seriousness of the offence and the likely sentence. Changes are also happening within Europe to try to make the situation better and to deal with cases where people might face a long period of pre-trial detention. Many of our Members of the European Parliament have been working on this. In particular, Sarah Ludford—Baroness Ludford—has been successful in securing a majority in the European Parliament for a package of EU-wide reforms of the European arrest warrant. These recommendations are important. They propose the inclusion of an EU-wide human rights safeguard clause preventing miscarriages of justice, and measures to improve standards of detention, specifically pre-trial detention. I hope that the European Commission and this Government will make sure that these reforms happen by coming up with proposals to enact them that we then get into law.

If we want to benefit from these tools and change them so that they work for Britain, we obviously have to be there at the table leading the negotiations. If we walk out, we give up on any chance of doing that, leaving our citizens vulnerable at home or when they go holidaying or working in Europe. Crime crosses borders and so must we. That means co-operation, information exchange, and justice systems that match our own high standards. We should opt in to these measures and make sure that we do not accidentally walk out, because that is the key to achieving this effectively and efficiently. I hope that the Home Secretary and the Lord Chancellor will successfully conclude these negotiations, and that my fears of our sleepwalking out of them do not come to pass, because that is the best thing for Britain.

--- Later in debate ---

[Mark Reckless (Rochester and Strood) (Con)]

It is a privilege and an honour to follow my hon. Friend the Member for Esher and Walton (Mr Raab). He spent six years as a Foreign Office lawyer and has a family back story that is perhaps more exotic than that of many on the Government Benches. Over the past half hour, he has, with his searing intellect, differentiated the small print, which he understands as well if not better than anyone in the House, from the key principles, which he enunciated. In particular, he concluded that we can achieve outside EU structures, albeit slightly more slowly in a few instances, what we can achieve within them, but without the downsides to liberty and democracy that are implied if we remain within those structures. He has done us a great service.

My hon. Friend spoke of the European arrest warrant. I felt that he spoke from the current centre of gravity within the Conservative party. He mentioned that the Home Affairs Committee, on which I sit, concluded that the EAW was “fundamentally flawed”, but did not mention that the Liberal Democrat member of that Committee, my hon. Friend the Member for Cambridge (Dr Huppert), voted to remove the word “fundamentally” from our report. I am delighted that Conservative members voted that proposal down unanimously.

It was instructive to hear from my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith). I intervened on him to ask how many people he would be prepared to see kept in custody wrongfully in order, supposedly, to bring 100 guilty people to justice, but he did not answer. He has great hopes that there will be some new EU directive that will stop all those bad things happening and properly protect everyone’s rights: as long as we legislate, people will be protected in practice and we need worry ourselves no more. However, we also heard from my hon. Friend the Member for Enfield North (Nick de Bois), whose constituent, Andrew Symeou, came to the Home Affairs Committee. My hon. Friend said that the proposals will not work and cannot be trusted, and that they will be judiciable by the European Court of Justice and subject to the proposals of the European Commission. As my hon. Friend the Member for Esher and Walton said, the problems that have been seen in the old member states may be not just replicated but worse in the new member states. How many people would the Liberal Democrats be prepared to see wrongfully imprisoned to get 100 crooks bang to rights? Alas, there are no Liberal Democrats here to answer my question. They tell us that they believe in the civil liberties of the British citizen, but when it comes down to it they always put the European Union and their belief in Europe, right or wrong, before the liberties of the British citizen.

Today, we debate a motion on an opt-out. We have heard an awful lot of discussion on what we might opt into, but the motion actually reads:

“That this House has considered the UK’s 2014 justice and home affairs opt-out decision.”

It is important to understand that the opt-out has been agreed. Parliament has voted to exercise the opt-out. All this talk about opt-ins is speculative. We may or may not opt back into some, any, or none of these measures—that remains to be seen. The status quo ante is that we have opted out, we have exercised it and that we have that great repatriation of powers. We will have to see whether it will be undone, or whether it will be maintained.

The great worry of my hon. Friend the Member for Cambridge, who is not in his place, is that we may sleepwalk, or accidently fall, out of the measures he would like to be in. I think he underestimates the degree of planning that went into delinking the two matters. A number of motions and draft motions were put on the Order Paper, and others were discussed between the coalition parties. Ultimately, the motion we voted on was to exercise the mass opt-out. There has been no decision by the House to approve any measures to opt back in. I pay tribute to my right hon. Friend the Member for Berwick-upon-Tweed, because the amour propre of Select Committees was also involved. The result of the decisions to which my right hon. Friend the Member for Berwick-upon-Tweed and my hon. Friend the Member for Cambridge signed up was that the mass opt-out and any opt-ins were delinked. Crucially, one came before the other.

My hon. Friend the Member for Cambridge seemed to be concerned that there might not be agreement in this House on what we might opt back into. One fear was that, as he sees it, the Labour party might play political games and that it would like us to opt back into more than the Government might wish. If, as with the Syria vote, Labour Members vote for their own motion or amendment, rather than voting for the Government motion, and it fails, there might be no agreement on any set of measures to opt back in to. The Home Secretary told us about her negotiations with her European partners and the Commission. Have there been negotiations with those on the Opposition Front Bench on whether they will support the package the Government put before the House, or does she believe that she has enough votes from Government Members to drive through measures to integrate this country into the European Union in a way that we have not seen before?

My hon. Friend the Member for Cambridge worries that this may come unstuck if the Government cannot reach agreement on what the measures should be. There has been discussion and there may be understanding but, as the Home Secretary rightly says, we do not know what we will be able to negotiate until we go through the process. We read in The Daily Telegraph today the concerns of a number of our partners about even a very modest proportionality test for the European arrest warrant. There will have to be further discussions between Conservatives and Liberal Democrats on whether an agreement can be reached in the coalition on what the Government want to opt back into and what is put before this House as a motion.

Those discussions and any decisions are likely to come after 22 May, when we consult the electorate in the European and local elections. That is when our constituents will have their chance to pass judgment on politicians, and, in particular, on the self-proclaimed “party of in”, which has made great play of these supposedly co-operative measures. The president of ACPO is quoted, and reference is made to whatever the police want. I remember the previous Prime Minister Tony Blair saying that if the police ask for something, there is nothing that any responsible Prime Minister can do except to give it to them. That, surely, is the definition of a police state.

We hear about the ACPO evidence, but I understand that people in ACPO have been fighting to avoid this portfolio. When Sir Hugh Orde talks about the ACPO position on EU matters—he may continue doing so for at least the next few months—it is not because the police consider them to be so terribly important that Sir Hugh must talk about them, but, I fear, it is because other chief constables have learnt the lessons from the noble Lord Blair. If they intrude into politics and tell the public and politicians that they have to vote a certain way so that they can lock people up for 90 days without charge—to say nothing of police vans festooned with “Vote Labour” stickers—there will be a backlash, because the police should not get involved in politics to that degree.

Unfortunately, with the European investigation order and the new statute for Europol, we have the prospect of our police being ordered what to do by politico-judicial structures in other EU countries where the separation of politics and operational policing is not what it is in this country. Do we, as a country, want to make a trade-off that allows British citizens to be arrested on the say-so of magistrates in Greece or Bulgaria and locked up for many months, if not years, in prisons that do not meet the standards that we in this country consider to be acceptable? Fundamentally, that is a matter for us as politicians, not the police.

[Mr Cash]

Many examples have been given of perceived injustices as a result of the European arrest warrant being applied in other countries. For example, is my hon. Friend aware that, under the European arrest warrant, a man from a neighbouring Staffordshire constituency was convicted in Italy, in absentia, for a murder that he could not have committed, because he was serving in a restaurant at the time, and sentenced to 15 years? It is definitely not just a one-way street.

[Mark Reckless]

I am grateful to my hon. Friend for drawing that example to the attention of the House. It goes to show that in principle we cannot sign up to the European arrest warrant, because we do not have a sufficient degree of trust in the similarity and protections of all EU 27 judicial and policing systems to allow us to do that. People in our country deserve and have had, over centuries, protections that are greater than those now offered within the European arrest warrant. It is for that reason that I hope and believe it is still possible that we will choose not to opt back into it.

The Home Secretary has given her view, but there are many views in the Conservative party. Those views are held not just on the Back Benches, but, I know, deep in the most senior levels of Government. I ask that we listen to the electorate. Once the electorate, on 22 May, passes its judgment on the “party of in”, and on how weak their arguments are, with the Deputy Prime Minister just recycling arguments he has picked up without giving any liberal thought as to what they are or what the principles should be, we will see that this is not what the people in this country want. Ultimately, we still have the right to make a different decision. What we have seen with the opt-out we have already made is that the opt-ins are still to come. One analogy that Members, at least in my party, may find instructive is with regard to what happened over the AV referendum and the boundary changes. We agreed, in good faith, to give the Liberal Democrats their referendum on AV. In return, they agreed to later give us boundaries that would give fair representation across constituencies. They banked their AV referendum, and then did not give us the boundaries that there was, at the very least, an understanding that they would give.

I would argue that the mass opt-out equates to the AV referendum in that analogy. I do not think that we would have any more reason to agree later to opt in to matters in which we do not believe because of that opt-out than the Liberal Democrats had to give us our boundaries because they secured their AV referendum; and I think that after 22 May, we will be in a different political situation.

[Mark Reckless]

My hon. Friend has made a very sensible point. I think that, as we get nearer to the election, we need to differentiate between what we believe in as Conservatives and what we have been forced to agree to by the need to be in harness with the Liberal Democrats. Given that they have not fulfilled their promises to us, and as we discover in the course of our negotiations with our European partners that we may not be able to secure protections in every area in which we would like to secure them, we shall have to consider, in those new circumstances, the balance of the opt-ins that are proposed, and decide whether we, as Conservatives, wish to agree to them.

[Mr Cash]

There is yet another example. The Liberal Democrats and the Labour party agreed to allow the European Union (Referendum) Bill, presented by my hon. Friend the Member for Stockton South (James Wharton), to complete its passage in the House of Commons, but when it reached the House of Lords, those same two parties made certain that it would not be passed, and we now understand that the Liberal Democrats are refusing to allow a money resolution to be tabled in respect of any future Bill that may be subject to the Parliament Acts.

[Mark Reckless]

I think the Liberal Democrats will ultimately find that as we act to others, so they will act to us.

--- Later in debate ---

[Sadiq Khan (Tooting) (Lab)]

We have had a very good debate, which has lasted for nearly four hours. We heard 11 speeches from Back Benchers, most of them parliamentarians who take their role as members of the legislature very seriously. They hold the Executive of today to account, they held the last Executive to account, and I dare say that they will hold future Executives to account as well. Three of them were Chairs of Select Committees, and I shall say more about their important contributions shortly.

Keeping the citizens of our country safe is one of the biggest challenges that any Government face. Increasingly, in the modern world of mobile populations and ever-changing technology, criminals take no notice of national boundaries. That is why cross-border co-operation is becoming ever more crucial in the fight against crime, and why today’s debate has been so serious. What we have been discussing is the extent to which we, as a country, believe that co-operation with our European partners is in the best interests of the fight against crime.

Unfortunately, what was already a complex debate on justice and home affairs issues is being made more complex by the Government’s deep-rooted anxieties about all things European. What should be a cool, calm and rational debate about measures designed to help the fight against crime risks being overshadowed by the Conservative party’s wider palpitations about the European Union. Nevertheless, today’s debate has been good-humoured, and many serious points have been made. I trust that the Government will respond to them, as they surely must.

Labour Members have made it clear that we do not oppose the principle of opt-outs. That is why we negotiated the power in the first place. The various Select Committee reports have confirmed that some of the original measures are redundant in any event, and that it would make no difference whether we were in some of them or not. My right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) listed a number of those measures.

[Mr Cash]

Is the right hon. Gentleman aware that on 27 June 2007—the very day on which he handed the reins of power to his successor—the former Prime Minister Mr Tony Blair stated that it was absolutely clear that we had an opt-out from the charter of fundamental rights, and also from justice and home affairs? What he did not mention was the fact that the overall system contained a power to rejoin.

[Sadiq Khan]

I thank the hon. Gentleman for reminding us all of his excellent memory of historical facts and dates. I am afraid that I cannot comment on that particular remark by Tony Blair, although I can comment on most of his remarks.

There is clearly concern about the way in which the Government have gone about seeking—or rather not seeking—the views of Parliament, and the lack of votes on this matter. Today we heard from three Select Committee Chairs: the hon. Member for Stone (Mr Cash), the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), and my right hon. Friend the Member for Leicester East (Keith Vaz). I shall not repeat the unprecedented criticisms of the Government’s approach by not one but three Select Committees, namely the European Scrutiny Committee, the Home Affairs Committee and the Justice Committee. The hon. Member for Perth and North Perthshire (Pete Wishart) expressed concern about the lack of consultation with the Scottish Government, and a number of other Members in all parts of the House referred to the lack of scrutiny being given to the decisions on which the Government are embarking.

Labour Members will approach the substance of the issues on the basis of what will help us in the fight against crime, rather than what will help us to ensure that our Back Benchers are soothed and reassured, which has been the Government’s approach. I wait to hear what the Justice Secretary has to say on the issues that have been raised today, but I live in hope that, rather than hearing the usual EU-bashing or ECHR-trashing, we shall hear a considered response to the important issues raised by Government Back Benchers and, indeed, by other Members in all parts of the House.

My right hon. Friend the Member for Normanton, Pontefract and Castleford has already described in detail our views on many of the measures that the Government are proposing to opt back into. Let me now touch briefly on some of the measures that fall into my own area of responsibility. They were dealt with in the Justice Committee’s report, and, today, in the excellent speech of its Chair, the right hon. Member for Berwick-upon-Tweed.

The Government propose to opt back in to five of the six mutual recognition measures, which we welcome. On the financial penalties framework decision, it is right that member states collect financial penalties regardless of which country the offender lives in. There should be no hiding place for offenders just because they live in a different country from where their crime was committed. The measure has been used considerably over the last few years. The Justice Committee confirmed that in just the short period between June 2010 and September 2012 we received penalties collected by other member states of £90,000 and collected for other members £50,000 in penalties.

On the previous convictions framework decision, courts must take account of a defendant’s previous conviction in other member states. Even the Justice Secretary has conceded that this measure was needed and is not part of a Europeanisation of our justice system, but is in fact central to our efforts in fighting crime. This is a key tool in helping us to fight crime and allowing our courts to have access to information from other member states on previous convictions.

Prison transfers are a massive issue, and not only within the European Union. Just last week Jamaica refused to ratify a transfer agreement with the UK which would have seen many of the Jamaicans behind bars in our jails sent back home to serve their sentences. We know it costs around £40,000 a year to keep someone in a UK prison, and with more than 10,000 foreign nationals behind bars—1 in 8 of the whole prison population—that represents a cost of £400 million a year to keep foreign criminals in British jails. If for nothing else, for purely financial reasons we should be doing more to send back to their home countries those foreign nationals who have committed crimes on our soil. The Prime Minister made big and wild promises back in 2010 personally to intervene to send back tens of thousands of criminals, but that is yet another broken promise to add to the long list. Since then, only a handful have been returned to their home countries.

To be fair, I accept that there are difficulties in negotiating prisoner transfer agreements with other countries. The setting up of the EU prisoner transfer framework, signed in November 2008 and brought into force in December 2011, was not a walk in the park, and I sympathise with the problems all Governments have had in negotiating these agreements. However, with about one third of all foreign nationals in our prisons being from the EU, this ought to make a difference to the numbers behind bars. I note that the Justice Committee reports that more needs to be done, and the Justice Secretary might want to tell us about some of the problems he has been having in negotiating these agreements in relation to the opt-in.

It would also be useful if the Justice Secretary were to tell us what else he is doing to make sure other member countries are stepping up to the plate on this issue. To date, too many are not playing a full part in the scheme, meaning that the scheme as originally planned and the agreement that has been signed have not borne the fruit we all would have liked to see.

The Government also propose to opt back into the judgments in absentia framework decision and the European supervision order, both of which play a key role in stopping criminals evading justice and allowing citizens to be returned to their home country for a period of non-custodial pre-trial supervision. Out of the mutual recognition instruments, the only measure the Government have chosen not to opt back into is the probation measures framework decision, but from reading the explanation given by Ministers it is clear that there is not a principled objection to this framework decision; there is rather a concern about how it might operate in practice. Will the Justice Secretary tell us more about his views on where the concerns may lie in practice rather than in principle?

--- Later in debate ---

[Chris Grayling]

I set out clearly to the House at the start of this process where I believe we stand. We are absolutely set against the creation of a European justice area and against the Europeanisation of our laws, but we also have a duty to our citizens to fight international crime, and I do not want us to be outside the battle against it. Earlier, my right hon. Friend the Home Secretary set out clearly the message that she has received from groups involved in fighting organised crime about the need to take the necessary measures to do so. She has clearly and robustly set out what she believes to be in the UK national interest on that front.

The shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan), talked about the challenge posed by foreign national offenders, and I want us to be part of pan-European arrangements to return foreign national offenders as quickly as possible. He said that he hoped I was not going to give the House what I think he called another rant against the ECHR. I would simply draw the House’s attention to one or two recent Court decisions taken under the European Court of Human Rights framework that have actually prevented us from sending prisoners back to other countries. I hope that that situation will change very soon.

[Mr Cash]

My right hon. Friend might recall giving evidence to the European Scrutiny Committee in respect of the charter of fundamental rights, which has a significant overlap in relation to the rights of the citizen and which, of course, relates indirectly to the European convention on human rights. This is very special, however, because Labour actually wanted to prevent the charter of fundamental rights from applying in the United Kingdom and took what the then Prime Minister described as a clear opt-out. However, my right hon. Friend knows that we now have an Act of Parliament saying one thing and a Court of Justice ruling saying another. What is he going to do about that? Is he going to adopt our proposal to amend the European Communities Act?

[Chris Grayling]

Let us be clear: what the last Government said about the charter of fundamental rights was simply an untruth. There are many quotes in which they clearly talked about an opt-out from the charter, but that opt-out does not exist. We on the Government Benches have our differences on aspects of human rights law, but there is unity across the coalition on the role and presence of the charter of fundamental rights. None of us wishes to see it become part of UK law, and none of us wishes the ambitions of some in Brussels who talk about it being extended into national law come to pass. We will resist that absolutely. As my hon. Friend knows, we are testing the current legal position in the courts, and I have no doubt that I will be giving further evidence on this subject to his Committee in the near future.

--- Later in debate ---

[Mr Cash]

Will the Secretary of State give us a clear indication as to the extent to which the decisions that are being taken by the Government are being guided, if not directed, by the politics of the coalition?

[Chris Grayling]

We have had long discussions across Government about how best to shape the right package for the country. Inevitably, we have had those discussions. We now have a package that provides a sensible balance between a number of different factors and different interests, which is why we have brought that package to the House for consideration. It is why we brought it to the House last summer and why we have set it out in our negotiations on the future of our participation in these measures.

Immigration Bill

William Cash Excerpts

Thursday 30th January 2014 Commons Chamber

[Pete Wishart]

Will the Home Secretary give way?

[Mr William Cash (Stone) (Con)]

Will the Home Secretary give way?

[Mrs May]

I must tell my hon. Friend that I have a list: I said that I would give way to the hon. Member for Perth and North Perthshire.

[Mrs May]

It is a bit rich of the Scottish National party to talk about not having a clue. I must say to the hon. Gentleman—I have said it before and I will say it again as many times as necessary—that we are giving effect to our declaration under the United Nations convention. That position applied in the United Kingdom until the previous Government changed the law in 2006, and we will return to that position.

[Mr Cash]

I am sure that my right hon. Friend appreciates that the way in which the provision is expressed will give the Secretary of State enormous power. Effectively, it involves the opinion of the Secretary of State, which will make it largely non-justiciable. Given its width and the cases of which the Home Secretary has given examples, is there a danger that we might be regarded as a nasty party if we put this kind of provision into effect?

[Mrs May]

The simple answer to my hon. Friend is no.

Psychoactive Substances

William Cash Excerpts

Monday 11th November 2013 Commons Chamber

[Norman Baker]

So far there has not been great success with regard to the speed of activity from the European Union. The proposals it is putting forward would, in my view, be slower than the present UK proposals, so irrespective of the legal base, that is not a good message to send out to those who wish to deal with what are often quite dangerous substances.

[Mr William Cash (Stone) (Con)]

Would the Minister be kind enough to give way on a point of information, because I wish, through him, to answer the question from my hon. Friend the Member for Chichester (Mr Tyrie)? There have recently been a number of successful challenges in relation to reasoned opinions on subsidiarity, including on a European prosecutor’s office. We will continue in this House and in the European Scrutiny Committee to take the appropriate and necessary advice and get it right.

[Norman Baker]

I thank the hon. Gentleman for that information. Of course, his knowledge of European matters is second to none in this House—[Interruption.] I did not say whether or not I approved of it.

The proposed regulation has features that might be appropriate if harmonisation of a legitimate internal market was genuinely required, but when applied to the control of these substances by member states, the proposal greatly exceeds any action required at EU level and thus does not comply with the principle of subsidiarity. For those few psychoactive substances that have legitimate uses, which amount to fewer than 2% of the more than 300 substances identified by the European Monitoring Centre for Drugs and Drug Addiction since 2005, our framework is already flexible enough to place controls on those substances to restrict recreational use without hindering genuine use in industry.

--- Later in debate ---

[Mr William Cash (Stone) (Con)]

We have had an interesting exchange of views, resulting in the Government and the Opposition agreeing with the European Scrutiny Committee’s assessment that there is a breach of the principle of subsidiarity in these matters. There are two issues: the draft regulation and the draft directive, both of which have already been described, so there is no need for me to go into them in detail.

The draft regulation would fetter the flexibility that member states currently enjoy to determine the level of risk associated with a new psychoactive substance, and to implement appropriate national control measures. The draft directive, on the other hand, would require member states to introduce criminal sanctions for a new psychoactive substance deemed by the Commission to present a severe health, social and safety risk.

The draft reasoned opinion concludes that the proposed legislation breaches the principle of subsidiarity simply because it would fetter member states’ action to an unacceptable degree. It highlighted the following concerns: the absence of reliable market information on the volume of trade in new psychoactive substances for legitimate rather than recreational use; different cultural and societal attitudes towards the regulation of drugs and new psychoactive substances and the need to accommodate different regulatory approaches at national level; the limited scope for unilateral action by a member state when faced with evidence of social or health harms which exceed the level of risk identified by the Commission when implementing market restrictions; and insufficient evidence of disruption to legitimate trade, or displacement of the harmful effects of the new psychoactive substances, to warrant market intervention on the scale envisaged in the proposed measures or the imposition of additional constraints on members states’ freedom of action.

We have had a number of successes in the European Scrutiny Committee’s proposals for reasoned opinions: we debated the proposal for a European prosecutor’s office and last week it was withdrawn by the Commission, and the Monti II provision in relation to small and medium-sized businesses. We are making some progress. The reality, however, is that we still have to get a substantial number of member states to agree to our proposals on the reasoned opinion. We have a decent track record and will continue to argue the case on the basis of analysis, logic and common sense. Having said that, I do not think there is anything I need to do to repeat the remarks that have already been made, because the Government, the Opposition and the ESC all agree.

[Jacob Rees-Mogg (North East Somerset) (Con)]

From experience, does my hon. Friend agree that it is usually the most dangerous state of affairs when there is a consensus between my hon. Friend, Her Majesty’s Government and Her Majesty’s loyal Opposition?

[Mr Cash]

I would certainly agree that it is extremely dangerous when there is collusion between the two Front-Bench teams, but when the European Scrutiny Committee comes into the equation, I think it is a virtuous circle. I hope that that helps my hon. Friend.

[Mr Nigel Dodds (Belfast North) (DUP)]

Does the hon. Gentleman agree that when the Government, the Opposition and the European Scrutiny Committee agree, there should be no question but that this proposal will go absolutely nowhere in terms of being implemented at any time in this country, and that we can be absolutely assured of that?

[Mr Cash]

We can be sure that our analysis will bear scrutiny and that the European Commission is getting used to the idea that when the UK Parliament is agreed about something, we are not going to give in. I think I will conclude my remarks on that rather important point.