The UK’s Justice and Home Affairs Opt-outs

Dominic Raab Excerpts

Thursday 10th July 2014 Commons Chamber

[Sir Tony Baldry]

I should have thought that, on a matter of law and order, even my hon. Friend would think it might just be sensible to take the advice of police forces up and down the country. Whatever we do in the House ought to be evidence-based, and I should have thought the evidence from police authorities and police forces around the country might be rather cogent and sensible evidence in these circumstances.

The ACPO assessment confirmed that the European arrest warrant is the most important of all the measures in the area of justice and home affairs. Most of the police forces and chief officers—I am sure that if my hon. Friend, for example, were to ask the chief constable of Essex and the Essex police force, they would make this point to him as well—believe that opting out of the European arrest warrant and relying on alternative arrangements would result in fewer extraditions, longer delays, higher costs, more offenders evading justice, and increased risks to public safety. They went on to say that the European arrest warrant

“has been in operation for eight years and has now become a mainstream tool. . . In 2010/11 the UK received 5,382 EAW requests and made 221 EAW requests to other EU states. The UK surrendered 1,149 individuals (approximately 7% of which were UK nationals, the other 93% being fugitives to the UK).The UK had 93 people surrendered to it.”

ACPO observed:

“These trends in extradition reflect the increasing international patterns of crime and offending. Open borders across Europe, free movement of EU citizens, low cost air travel, cheap telecommunications, the internet and the expansion of criminal networks across national boundaries are all contributory factors to the growth in extradition requests. These are irreversible changes which need to be matched by increasing flexibility on the part of European law enforcement and criminal justice agencies.”

ACPO went on to say:

“Further evidence of these changes is to be found in data concerning arrests. Recent data gathered by the MPS”—

the Metropolitan police service—

“in the first quarter of 2012 showed that of 61,939 people arrested in London, 8,089 were nationals from EU countries (13%) and 9,358 were foreign nationals from outside the EU (15%). The presence of fugitives from justice fleeing to the UK is a significant public safety issue. In 2011/12 the MPS received 50 EAWs for homicide, 20 for rape, and 90 for robbery. Each of these cases represents a person who is wanted for a serious crime who fled to the UK. There is strong evidence to show that foreign criminals who come to UK continue to offend when in the UK. There is a real risk that opting out of the EAW and relying on less effective extradition arrangements could have the effect of turning the UK into a ‘safe haven’ for Europe’s criminals.”

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

I am listening intently to what my right hon. Friend is saying. We should listen to ACPO, but I do not think that in its evidence to the House of Lords Committee ACPO made the argument that he is making in his speech. In respect of fugitives coming to the UK, there is no reason, in or out of the European arrest warrant, why we cannot just deport them. Deportation powers would provide a much quicker route even than extradition under the European arrest warrant. The wider question is whether we could get people back. That is an important point, but ACPO’s evidence focused on the latter, not the former.

[Sir Tony Baldry]

I am quoting verbatim from ACPO’s evidence given to the House of Lords. I will share it with my hon. Friend afterwards, but it is verbatim, so I am afraid that he has misdirected himself or misremembered the evidence that ACPO submitted. I am pretty old and gnarled but I can remember from when I practised at the Bar as a prosecutor that it was a nightmare to return foreign offenders overseas using bilateral agreements—it could sometimes take years with multiple applications. I recall application after application at Horseferry road magistrates court as we ploughed through various procedural points to get people deported.

I go on to quote verbatim, so there is no possibility of misunderstanding for my hon. Friend the Member for Esher and Walton (Mr Raab), from ACPO’s evidence to the House of Lords. It says that the European arrest warrant is

“an efficient system, built upon mutual recognition of criminal justice systems between member states and an obligation to comply with a properly constructed warrant. Barriers which previously existed have been removed. The nationality of the person sought can no longer be a barrier to affecting an extradition request. Under the previous arrangements many European states, such as Germany, France and Poland, did not allow their nationals to be extradited to stand trial and required them to be tried in their home state…Prior to the introduction of the EAW, extradition between European states where it did occur could, and often would, take many months in uncontested cases and many years in contested cases.”

I can testify to that, having been involved in some of those cases. The evidence continues:

“EAW data from the Commission to the European Parliament show that across the EU it takes an average of 17 days to surrender a wanted person”.

Thames Valley police gave me just two very recent examples in which the European arrest warrant had made my constituents safer. Under a recent European arrest warrant, they arrested a Polish individual wanted for armed robbery and burglary in Poland, clearly safeguarding the local community as the Thames Valley police had no intelligence that there were individuals residing in our area who had been assessed as high risk. The warrant was received, processed and executed within 24 hours, removing a potential offender and providing reassurance to the community. Another individual wanted for taking part in the murder of two youths in Milton Keynes was also arrested in Holland under a European arrest warrant. The European crime unit extradited him to the UK, where he now awaits trial, and two other suspects were sentenced in an earlier trial to more than 30 years’ imprisonment.

It is said by some, including my hon. Friend the Member for Esher and Walton, that we should rely on deportation and other extradition proceedings, but we need only contrast the speed of those cases with what happened with Abu Hamza. Fourteen years after his arrest on behalf of the USA under legal conditions largely identical to the 1957 treaty, he was finally extradited to the USA to face terrorism charges there. Do we really want to see repeated Abu Hamza-type situations in our extradition processes? These are not isolated examples of where the European arrest warrant has been of benefit. Numerous other examples could be cited.

The European arrest warrant is cost-efficient. If we relied on a 1957-type mechanism we would commit ourselves to footing the legal bill for extradition processes that went on for years and cost the public purse hundreds of thousands of pounds. The public and the judiciary are frustrated that the extradition of terrorists is often delayed for years. The return to the 1957 process could make this long, drawn-out process the norm. That might not have been such a problem 20 or 30 years ago when criminals rarely crossed borders, but nowadays that is routine.

ACPO concluded in its evidence to the House of Lords and Parliament:

“The view therefore of ACPO is simple. The EAW works very effectively and increases the safety of the UK public. It is for this reason that ACPO strongly supports the EAW.”

I hope that before we next debate and vote on this issue in the House, chief constables and police authorities will write to every right hon. and hon. Member making clear the position of local police forces and drawing Members’ attention to the benefits that the European arrest warrant has had in their own areas.

I fully appreciate that Members of this House oppose anything that has the word “Europe” in it. I genuinely love my hon. Friend the Member for Aldridge-Brownhills, but I have heard that speech now about 50 times during the 30 years for which I have been a Member of this House. The fact that one is opposed to the European Union is not sufficient to jeopardise the safety of our constituents or our national interest. The Home Secretary, by opting back into a number of these measures, particularly the European arrest warrant, is, in my view and judgment, doing something sensible, proportionate, in the national interest and, most importantly of all, in the interests of my constituents.

--- 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.

[Sir Alan Beith]

Will the hon. Gentleman give way?

[Mr Raab]

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

[Sir Alan Beith]

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

[Mr Raab]

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

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

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

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

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

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

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

Justice and Home Affairs Opt-out

Dominic Raab Excerpts

Monday 7th April 2014 Commons Chamber

[Mrs May]

I am aware of the report in today’s press, but I do not think that it referred to a Council of Ministers meeting. It may have referred to a document that possibly had been leaked from the European Commission. I say to my hon. Friend that, as I have made very clear, there are matters for discussion and matters for negotiation that we have to undertake as we go through this process, but other member states do have within their own systems a greater ability to deal with issues such as proportionality, and I think it is right that we have taken powers ourselves in our own legislation to do that.

Returning to my point, I think it is in our national interest to have an effective extradition system in place and no other extradition system would be as effective. We owe it to the victims of crime, and their families, to return the alleged perpetrators of serious crimes to this country and ensure that they face justice. There are many examples of that, of which I will cite only a few.

The arrest warrant recently helped the British authorities to secure the extradition and conviction of Francis Paul Cullen, a former priest who sexually assaulted seven children before spending more than two decades on the run in Spain. Thanks to the European arrest warrant, he will now swap the Spanish sun for a 15-year term in a British jail.

Our law enforcement agencies are clear that the arrest warrant has helped them to secure the return of dangerous criminals to face justice in the UK—criminals who under the old regime might not have been returned to answer for their crimes, including David Heiss from Germany and Florian Baboi from Romania.

David Heiss viciously murdered a British student, Matthew Pyke—originally from Stowmarket in Suffolk—in Nottingham in September 2008, stabbing him 86 times. Heiss was arrested on a European arrest warrant at his home in Germany a month after the offence and was surrendered to the UK the month after that. He has since been sentenced to a minimum of 18 years in prison. Before the European arrest warrant, Germany did not surrender its own nationals; indeed, there was a constitutional bar to its doing so, so it is clear that in this case the arrest warrant made a real difference.

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

In how many of the recent cases is the European arrest warrant making extradition quicker, rather than facilitating it when it would not have happened under existing arrangements? The Home Secretary has given one very powerful case, but quantitatively how many cases are we talking about because the argument has been made that actually we would face a cliff edge and just not get fugitives back rather than get them back a little bit slower?

[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.

--- Later in debate ---

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

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

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

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

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

[Sir Alan Beith]

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

[Mr Raab]

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

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

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

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

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

the European arrest warrant—

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

That is Britain’s most senior extradition judge.

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

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

[Jacob Rees-Mogg]

I very much agree with what my hon. Friend is saying. Of course, the matter would also become subject to qualified majority voting and we could therefore be overruled on any future developments.

[Mr Raab]

My hon. Friend is absolutely right. I was going to come on to the other areas of creeping supranationalism.

The same is true of Eurojust. Although Britain will not opt in to the European Public Prosecutor’s Office—I very much welcome the fact that Ministers have made that clear—if one looks at the fine print, which the Deputy Prime Minister always encourages us to do, the new Eurojust regulation encourages close co-operation with the EPPO through the back door. If we opt back in to the Eurojust regulation, we will therefore have a close relationship of support for the EPPO. That is something else that needs to be looked at.

Even here at home, outside the political arena, we have had a timely warning from the High Court, and from Mr Justice Mostyn in particular, about the risks of creeping supranationalism. The last Government, to great fanfare, negotiated the British opt-out from the charter of fundamental rights. However, we found out from a case in the High Court in November 2013 that that counts for nothing. Again, so that I cannot be accused of spinning the language, I will refer directly to what Mr Justice Mostyn said. In respect of the opt-out he said:

“it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts. The assertion in the…protocol that no new rights are created seems to me to be a misleading product of political compromise because on any view the Charter enunciates a host of new rights which are not expressly found in the European Convention on Human Rights signed in Rome in 1950.”

He continued:

“However, my view that the effect of the seventh protocol is to prevent any new justiciable rights from being created is not one shared by the Court of Justice of the European Union in Luxembourg.”

He went on to say:

“The constitutional significance of this decision can hardly be overstated.”

That is a timely warning from another senior British judge about what is actually happening.

If we listen to our colleagues, partners and friends in the European Union, they are telling us the same thing loud and clear. Viviane Reding, the vice-president of the European Commission and the Justice Commissioner, made it very clear in a speech in Brussels on 4 September 2013 that the EU wishes to acquire the powers of a nation state in the rule of law area. She said explicitly that the EU needs a formal justice Minister and stronger powers to police national criminal justice systems, including

“detailed monitoring and sanctioning powers”.

We must not only look at the snapshot of measures that are before us now, but ask whether in five or 10 years’ time we will find ourselves enmeshed in a common pan-European justice system over which we have lost substantial democratic control. On the evidence, the answer is almost certainly yes.

I want to talk about the European arrest warrant in particular because, between the two poles of UKIP, which suggests that we should just opt out en masse, and our Labour and Liberal Democrat colleagues in this House, who suggest that there is nothing wrong with it, there is a common-sense—dare I say it—third way or at least a middle course. That is to have binding treaty relations on extradition, but to ensure that we have safeguards in place to protect British citizens. We must not make the Faustian bargain that was debated by the right hon. Member for Berwick-upon-Tweed and my hon. Friend the Member for North East Somerset of sacrificing a few innocent people to snag a few guilty fugitives.

If one looks at the data, one finds that the number of European arrest warrants that are received by the UK has trebled since 2004. The latest figures on warrants issued from the first quarter of 2013 showed that the UK receives 33 warrants for every one that it serves. A number of colleagues on the Liberal Democrat and Labour Benches have talked about the lop-sided nature of UK-US extradition, but that is nothing compared with the European arrest warrant, empirically and factually. One cannot take issue with the lack of reciprocity in our extradition relations with the US and not see the same problem in the European arrest warrant. One Briton is surrendered each week. That is up from five per year in 2004.

I accept that we needed a more streamlined process than existed before. I accept that we need a treaty basis for that. We ought to get to a stage where we can talk about reform of the European arrest warrant. I do not think that we will achieve that if we opt back in at this stage.

[Mr Nuttall]

I agree with many of the points that my hon. Friend is making. Will he clarify whether, in his opinion, it would be possible to reach such an arrangement, with a separate treaty, if this country were outside the EU?

[Mr Raab]

Of course it could be reached. I was a Foreign Office lawyer for six years. I would love to obsess, fixate and opine on all the legal niceties, but this is about political will. Ultimately, these issues come down to political will.

Many Members have quoted ACPO’s submission on the importance of the European arrest warrant. I accept that it has been very clear about that. However, as I said earlier, it has not been able to assess how many fugitives would go free if we did not opt back in to the European arrest warrant, but went down an alternative route. That is the Achilles heel in its argument. In fairness to ACPO, if one reads on from the statement that the hon. Member for Cambridge (Dr Huppert) read out, it says:

“That said, extradition did exist before 2004 and so it could operate without it”—

that is, without the European arrest warrant—

“as it does with non-EU states.”

The idea that we would face a cliff edge and that fugitives would go free left, right and centre—we have the tabloid scare stories about terrorist suspects and paedophiles—is nonsense. The only way in which that could happen would be if the EU was prepared to cut off its nose to spite its face and refuse to have any extradition relations with us at all. What possible interest would it have in doing that?

I listened carefully to the police evidence, as I think has been borne out by my comments today. I also want to look at the non-police evidence. Fair Trials International has given evidence at length about the miscarriages of justice that have taken place. The appalling miscarriage of justice in the Andrew Symeou case, in terms of both the incompetence of the Greek system and the gruesome jail conditions that he ended up in, are passed by very glibly by those who suggest that we should opt straight back in or that we should opt back in and then somehow reform the system without having the leverage that we have now.

I have the constituency case of Colin Dines, who is subject to a European arrest warrant that alleges his involvement in a mass telecoms fraud involving the Mafia back in Italy. No evidence has been presented of his links to that crime. No attempt has been made to come to the UK to interview him, to get his side of the story or to see if the matter can be straightened out. In the process, with the stress and the strain, he has suffered a stroke, only to find out that the case is crumbling and that the substantive charges look very likely to be dropped or, at least, that a face-saving way out will be found by the Italian authorities. There are other cases, such as those of Edmond Arapi and Deborah Dark.

I respect the Liberal Democrat position on the European arrest warrant, but when I heard the Deputy Prime Minister, in the Farage-Clegg debate, dismissing the Symeou case as “fantasy”, it was deeply disappointing. It was right that he subsequently corrected his position on the Symeou case. As someone who has met the family of Mr Symeou and the other victims to whom I have referred and who still sees the Dines family, who continue to suffer from the European arrest warrant, I find the glib dismissal of a civil liberties issue by the Liberal Democrats difficult to reconcile with their supposed advocacy of British freedom.

[John Hemming (Birmingham, Yardley) (LD)]

Will the hon. Gentleman give way?

[Mr Raab]

I am sure that the hon. Gentleman will correct that impression.

[John Hemming]

I just want to say that I do have concerns about the individual cases involving the European arrest warrant.

[Mr Raab]

I am glad that I took that intervention. The hon. Gentleman is absolutely right.

We need to work out the best way to reform the European arrest warrant through national legislation and by renegotiating the EU framework decision or, better still, by opting out and pursuing a bilateral treaty, which would mean that the British Supreme Court had the last word on the fate of British citizens. We ought to have a sensible debate about all of that.

I note that the Liberal Democrats’ answer to the problems of the European arrest warrant is another EU directive on the rights of the accused. A Liberal Democrat would say that, the answer to defects in EU law is always more EU law, but we must consider the systemic lack of judicial capacity and the lack of standards in some countries—I have mentioned Italy and Greece, which are not new EU member states, so heaven help people if they end up in the Romanian or Bulgarian justice systems or, worse still, in one of their jails. I welcome the hon. Gentleman’s intervention, but I do not understand how swiftly the Liberal Democrats have sold the freedom and civil liberties of British citizens because of their slavish adherence to EU dogma and the idea that ever more EU integration must be a good thing. We should not accept the Faustian bargain whereby we sacrifice a few British citizens to lock up a few extra criminals. That is not my idea of British justice. It is not what millions in this country fought for in world wars. It is not the tradition of this country dating back to Magna Carta.

We have options—that is critical—whether falling back on the Council of Europe conventions, which are not foolproof, or taking advantage of the legal personality of the EU to negotiate bespoke legal arrangements that do not fall within the ECJ jurisdiction. Hon. Members have referred to transitional arrangements, which could buy us some time. All of those are the common-sense middle ground we should be aiming for. There is absolutely no reason why a single serious criminal fugitive would go free if we considered such arrangements. To suggest otherwise is ridiculous scaremongering.

I have one final point to make on the European arrest warrant. There are reports in The Daily Telegraph today that Spain and France will not even countenance Britain adopting a proportionality test in UK law, even though the framework decision allows that. What chance would we have of renegotiating the framework decision after we opt in if they object to that now? Our leverage is at this point in time. We should take full advantage of it to achieve the best deal for British citizens.

The case I want to make is for operational co-operation with our EU friends without ceding democratic control. Britain has—by far, overall—the finest intelligence and law enforcement assets in the EU. The EU has legal personality, so it is much easier to negotiate justice and home affairs agreements. I have asked parliamentary questions on this. The EU has countless, by which I mean a good 10 or dozen, justice and home affairs international agreements with third countries. We have the precedent of Frontex—we are not a full member but co-operate on an administrative basis, which works incredibly well. We need to avoid the creeping supra-nationalism of the EU in justice and home affairs.

For all the talk of EU justice and home affairs safeguarding British law enforcement, the raw fact is that EU JHA has severely undermined our power to protect the British public by removing or deporting serious criminals. That will only get worse in the years ahead.

[Bob Stewart]

I seek clarification from my hon. Friend. Interpol has a red arrest warrant. Is that in any way connected, because I have been arrested on a red warrant in the Crimea?

[Mr Raab]

I want to be very careful in not passing judgment about any arrest warrant on my hon. Friend that may be pending, not least with the Select Committee on Defence hustings looming, but my understanding is that the Interpol red notice is more of an alert than a binding warrant for surrender.

We need to look not only at what is going on within the EU. It is suggested that EU law provides best practice, and yet one might get a different view if one asks a senior Swiss diplomat, as I did recently at the Fresh Start project, which was organised by my hon. Friend the Member for South Northamptonshire (Andrea Leadsom). I asked the senior Swiss diplomat: “When you look at the whole area of EU justice and home affairs and at crime and policing, is there anything that you miss or want?” He said, “Absolutely nothing. The reality is that good law enforcement is done by the phone—by good operational contacts. It is a question of how you make things work in practice. It is not done by hyperactive legislation.” I then asked a senior US diplomat whether the US would ever consider sacrificing so much democratic control over law enforcement in its relations with any neighbour in north or south America, and whether the US would ever go down that route if it is such a great idea for the EU and Britain. They said: “Absolutely no chance.” No other region of the world is remotely thinking about enhancing the integration of law and ceding democratic control in justice and home affairs.

I understand that the crude political tendency is to dress up Euroscepticism, or any substantive critique or analysis, as the product of an insular, little-Englander mentality, but when we look globally, we see that no one else is going down that route. Why is Britain not taking into account the best practice from around the world, including in our Commonwealth partners such as Australia and New Zealand, and in the US and Canada? Why are we not looking at our excellent law enforcement relations with those countries? Why is the EU always presented as having the best law enforcement relations in the world when that does not seem to be based on any empirical evidence?

We should take advantage of the power we have in the Lisbon treaty to reform our relationship with the EU in the vital area of justice and home affairs. This is an important strategic crossroads for Britain. If we do not reform justice and home affairs now, using that important treaty lever, when will we do so? We always have promises of jam tomorrow. Such a reform would be an important precursor and complement to the wider EU negotiation that the Prime Minister has very wisely said Britain needs.

It is incredibly important that we take this opportunity to stand up for the liberty of British citizens, and for the democratic prerogatives of the House and the people who send us here. If we cannot have operational co-operation without ceding democratic control, we should have the courage of our convictions and say no. I want strong law enforcement and operational co-operation with our EU partners, but not at any price.

Transparency of UK Visa Bans

Dominic Raab Excerpts

Wednesday 2nd April 2014 Westminster Hall

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

It is a pleasure to secure this debate under your chairmanship, Mrs Osborne.

It is often, and rightly, said that the mark of a civilised country is who we offer safe haven to. Equally, who we do not let in says something about our moral character as a nation. The Home Secretary has wide powers to exclude foreign nationals, and successive Governments have stressed that such powers must be exercised in a way that is reasonable, proportionate and consistent, in accordance with the immigration rules. In addition, it should be noted that there is a duty—not just a power—to ban certain people who are subject to EU or UN travel bans. So the powers are there.

In 2005, the former Home Secretary, Charles Clarke, stated that the power to exclude had been invoked by successive Governments on the grounds of national security, and after the London bombings of July 2005, the Home Office published a broader list of “unacceptable behaviour” that could form the basis for deportation or exclusion. That “unacceptable behaviour” included fostering hatred that might lead to inter-community violence.

The current Home Secretary made it clear in 2011 that she wanted to take an even more interventionist approach, banning people who hold extreme views even if they are not necessarily or directly inciting or promoting violence. She explained the rationale to the US Council on Foreign Relations, and it is worth quoting her just to provide the context for this debate:

“I think it is right that we have taken a slightly different stance over the last 18 months as a new Government in looking at this, because we believe that this issue of words that are said—what people actually say and how they are able to encourage others through the words that they say—is an important issue for us to address.

That’s why we have chosen in our Prevent strategy, for example, to look not just at violent extremism but at extremism. I think it’s important that we do so. If we’re able to do that, I think that enables us to operate at an earlier level rather than simply waiting until people have gone down the route of violent extremism.”

The grounds for refusal and for exclusion are not limited to terrorist-linked or other violent extremism. A criminal record, or even just obnoxious views, can get someone barred. For example, recently, US shock jock Michael Savage and right-wing activist Pamela Geller, who is also from the States, have been refused entry to Britain.

Overall, if we look at recent history we see that there is a long list of rather curious characters who have been excluded from Britain: from Snoop Doggy Dogg and Chris Brown to Martha Stewart; and from Nobel laureate Pablo Neruda and scientologist Ron Hubbard to Dutch MP Geert Wilders. Along with the positively dangerous, there is a rather rag-tag mix of crooks, kooks and cranks who have been barred from coming here.

There is a legitimate wider debate around all of this. Do we risk suffocating free speech because of undue sensitivity or political correctness if we bar individuals who are not directly inciting violence but are just offensive to certain quarters of society? Who decides where to draw that line, or what the objective criteria are for barring people for bad taste or because they may be regarded by some as insulting? Beyond protecting the public, in the sense of public safety, should the role of a Home Secretary effectively involve acting as some kind of thought police? I am not convinced that we have gone quite that far, but equally I am not convinced that we should go that far. That whole debate is perfectly legitimate.

Putting aside that wider debate, I will focus on a consequential aspect of this issue. On occasion, the names of those denied access to the UK have been disclosed in the past, including—as I have mentioned—where they foster hatred or seek to justify terrorist acts, or where they might spark inter-community unrest. Sometimes people are excluded on the basis of their views alone, rather than because of any physical acts or any crimes of which they have been convicted. In contrast to those examples of publication, when I have asked for clarification about whether those responsible for, or profiting from, torture have been barred from the UK, I have received the stock answer that the Home Office does not routinely publicise the names of individuals who have been barred from entry to the UK.

Hon. Members will remember that, two years ago, the House unanimously called for a UK Magnistky law. That motion was inspired by Sergei Magnitsky, the dissident Russian lawyer who was tortured to death, then prosecuted posthumously on orders from the Kremlin because he had disclosed the biggest tax fraud in Russian history, which was worth $230 million. The answer that was given at the time in response to the call from the House was that the Government already had adequate powers to impose visa bans or asset freezes, but we do not know for sure when or how those powers are exercised. That must be wrong on the grounds of transparency, and in addition to the point of principle about transparency it robs the powers of much of their deterrent effect for those whom we do not want coming to Britain, or applying to come to Britain.

My requests to find out whether the Home Office had allowed entry to any of the so-called Magnitsky 60—the US list of suspects in that appalling case, who were already publicly barred from America—was met with refusal. When I subsequently asked whether Dmitry Klyuev, head of the Klyuev gang and reportedly the mastermind of the fraud disclosed by Magnitsky, had recently been granted a visa to the UK, again the official response was, “No comment.”

That will not do. It cannot be right that, from time to time, Ministers publish the names of those who have been banned because, for example, they may hold obnoxious views, yet on the other hand, they refuse to say if alleged mafia, corrupt Government cronies or those complicit in torture are allowed in. It cannot be right as a matter of policy and it cannot be right as a matter of openness. The British public have a right to know.

In 2012, when he was a Home Office Minister, the hon. Member for Taunton Deane (Mr Browne), tried to justify that rather arbitrary position when he gave evidence to the Select Committee on Foreign Affairs. First, he said that making the names public might lead to the risk of additional litigation. However, it is difficult to see how publicising names adds much to the inherent risk of litigation based on the substantive decision that was made. If anything, greater transparency and clarity about the criteria for banning people might help to reduce the risk of judicial review. Secondly, it was suggested that publication was unreasonable because of sensitivities and confidentiality, but that is wholly untenable. If there are sound public policy grounds to bar entry, they should trump personal, let alone diplomatic, niceties.

Finally and even more tenuously, the hon. Gentleman said that publishing the names might prejudice a trial back home, or put British citizens abroad at risk of retaliation. Again, it is difficult to see why the publication of a refusal of entry would affect the outcome of any fair trial back home, and neither is the risk of retaliation against Britons abroad any greater as a result of such a decision than it is as a result of the countless other decisions that a democratic Government can—and do—legitimately make, which might, at least in theory, spark some utterly irrational backlash abroad by someone, somewhere, at some indefinite point in the future.

In its 2012 report, the Foreign Affairs Committee rejected the arguments that the hon. Gentleman had put forward. Having received evidence on the Magnitsky case, it called for publication of the names of those denied entry to the UK on human rights grounds. Regrettably, the Government have not accepted that recommendation.

There is a far broader point in all of this. If we decide to extradite someone from Britain, that decision is made public, and if we deport someone from Britain, that decision is made public. That transparency is vital, informing the legitimate debate around the policy and the law underpinning the relevant powers and the manner in which they are exercised.

Legislation that deals with deportation is going through Parliament right now in the Immigration Bill precisely because of the need for transparency around deportation. Recently, there was an independent inquiry into extradition, again because of the importance of transparency, and various changes were made to legislation as a result. If there are good grounds for taking the preventive step of barring entry, why do we as policy makers, and the British public at large, face a veil of secrecy?

Added to those domestic considerations, Britain has signed up to a G20 commitment to deny safe haven to corrupt officials. As Global Witness, the international NGO, has argued, how can there be any accountability for that international pledge without transparency about the way in which powers at home are exercised?

I will have another go with the Minister today. Have the following people, for whom there is evidence linking them to the Magnitsky case, been subject to a UK visa ban? In addition, have any of them in practice entered Britain during the past five years? What about Alexander Ivanovich Bastrykin, the senior investigator responsible for the whitewash report about the circumstances surrounding Sergei Magnitsky’s death? What about Yuri Yakovlevich Chaika? He was the general prosecutor named by Magnitsky as having overall legal responsibility for the abuses, including torture, that he suffered when he was in detention. Chaika was also responsible for the subsequent whitewashing of the fraud.

What about Chaika’s deputy, Victor Yakovlevich Grin, who ordered the posthumous prosecution of Magnitsky? I think that I am right in saying that that was the first posthumous prosecution in Russian history. What about Victor Gennadievich Voronin, who at the time was the deputy head of Russia’s federal security service and responsible for authorising the original tax fraud, which was the crime that Magnitsky had uncovered? Can the Minister assure the House that these venal men are banned from setting foot on British soil, and indeed have not set foot on British soil?

Today, the wider secrecy around visa bans is relevant to the British response to the crisis in Ukraine. The US list of visa bans is public; the EU list is, too; yet still Britain’s national policy is not to make public the identities of any additional persons who might be subject to a domestic UK ban. What possible reason can there be for this? Is it that we might upset Vladimir Putin? Do not the British people have a right to know whether we have let in people such as Dmyrto Firtash, the Ukrainian oligarch who helped former President Yanukovych into power—arrested recently in Austria; wanted by the US; and investigated by the NGO, Global Witness, that I referred to earlier. He has a charitable foundation in the UK. Has he entered Britain in the past three years? The British people and Parliament have a right to know.

What about Rinat Akhmetov, another Ukrainian oligarch and sponsor of Yanukovych? He is facing investigation by the Swiss authorities. He reportedly owns one of the most expensive apartments in London. Many other Ukrainian politicians-cum-businessmen with links to UK businesses—specific links to Britain—have a cloud of suspicion hanging over their name for corruption: people such as Yuriy Boyko or Yuriy Ivanyushchenko. I readily and proactively say that the allegations against those men might not be true. Maybe they can answer all the claims that have been levelled against them and can rebut the evidence. They should certainly have that chance, but so should we in this House have the chance, and the British public at large should know whether such people are freely entering Britain.

The risk in the lack of transparency in this area is that people may start to suspect that the discretionary powers are not being exercised properly, robustly or consistently, and that expediency is trumping principle. That is the fear that is starting to grow up around the issue. I call on the Minister today to answer my specific questions about the individuals in the context of the Magnitsky case and the Ukrainian case, and to look at changing the Government’s position on visa bans, and perhaps go further than the Foreign Affairs Committee recommendation. The current position must be dragged into the 21st century. The names of those excluded from this country on policy grounds should be made public, in the same way that measures are made public when we extradite or deport someone. If we have good reason to bar someone from entering Britain, we should say so loud and clear, not in some half-hearted whisper lest we cause offence. The Government should have the courage of their conviction, and the public should be reassured that torturers, mafia bosses and the henchmen of dictators like Vladimir Putin are not simply waltzing in and out of Britain, despite pious statements of official policy.

[The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)]

It continues to be a pleasure to serve under your chairmanship, Mrs Osborne. I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing a debate on this subject. I apologise on behalf of the Minister for Security and Immigration, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), who is currently in the main Chamber and therefore unable to be here for this debate, but I am sure he and my hon. Friend the Member for Esher and Walton will have many opportunities to catch up on this topic.

As the Home Secretary has previously made clear, where credible evidence exists, the immigration rules allow us to deny entry to those whose presence in this country is not considered conducive to the public good. The power to deny a person the ability to enter the UK is an important tool that has the potential to support key Government objectives across a range of matters including national security, terrorism, criminality, war crimes and human rights abuses.

The Home Secretary may also personally decide to exclude an individual who is not a British citizen. Individuals can be excluded on grounds of national security; on the grounds that their presence in the United Kingdom is not conducive to the public good; or under the unacceptable behaviours or extremism exclusion policy. Exclusion is not targeted against any religious group or proponents of any individual political position. Individuals excluded have included serious criminals, far-right extremists, homophobic extremists, and Christian, Jewish and Islamic extremists.

Exclusion powers are taken very seriously and we do not use them lightly. No decision to exclude is taken lightly or as a method of stopping debate on the issues. There is close partnership working across Government to identify those who should be excluded from the UK and to prevent them from travelling here. The Secretary of State will use those powers when justified, based on all the available evidence. In all matters, the Secretary of State must act reasonably, proportionately and consistently.

Where an individual not already subject to exclusion seeks entry to the UK either through applying for a visa from abroad or on arrival at the UK border, we have the power to refuse those individuals entry on non-conducive grounds. We do not routinely publish the names of individuals who are prevented from entering the UK. The Home Secretary and her officials use such powers to protect national security, to prevent extremists and terrorists from coming to the UK, and to disrupt the activities of serious criminals. When those powers are exercised, public disclosure of the names of the individuals concerned does not always assist in achieving those aims.

It is important that we use those powers to achieve the best results in protecting the UK and the British public. That is most often achieved without the glare of publicity, particularly when we are seeking to cause a change in behaviour. My hon. Friend the Member for Esher and Walton will appreciate that once it has been made public that a person has been banned from or refused entry to the UK—and so their reputation has been affected—they have less to gain by moderating their behaviour.

Furthermore, the Home Office has a duty of confidentiality, and the details of individual immigration cases will not routinely be made public. Where it is considered that there is a strong public interest in doing so, which clearly outweighs our duty to individuals, and there is sufficient information to confirm individual identity, the Home Office will disclose names. In exceptional circumstances, we occasionally confirm that an individual has been denied entry to the UK when the information is already in the public domain or there is a legitimate public interest in doing so, but it is certainly not routine or regular.

Having considered carefully the previous Government’s policy of releasing the names of individuals who had been excluded from the UK, we decided that that was the wrong approach. We concluded that that policy simply invited costly and long-running litigation where it could have been avoided. It is therefore our firm view that the current approach is right and that the details of those banned from this country should be made public only when there is a clear public interest in doing so or where the individual concerned has put the information in the public domain.

As my hon. Friend will be aware, that is a long-standing position that successive Governments have adopted. I quite understand that there is a view that disclosing the details of those who have been banned from this country, or refused entry, will reassure both the House and the wider public that steps are being taken to deny the most undesirable people access to this country. However, for the reasons I have just explained, that is not always in the UK’s best interest.

My hon. Friend raised the matter of Sergei Magnitsky. The circumstances surrounding his death—a human rights case—are of utmost concern. It is the most high-profile example of the failings of Russia’s judicial and prison systems. The Government recognise that four years after Mr Magnitsky’s death, there has been a lack of meaningful progress towards securing justice.

The power to prevent a person from entering the UK on non-conducive grounds is wide-ranging, but it can be and is used in cases where an individual has been involved in human rights abuses. Coming to the UK is a privilege, not a right. Although we do not routinely comment on individual cases, the presumption is that those who have committed human rights abuses will normally be refused entry to the UK. However, we cannot simply refuse an individual without objective, reliable, independent evidence of their personal involvement in human rights abuses or other serious crimes. We do not prejudge evidence speculatively, but when an application to come to the UK is made, it is considered on its merits, taking into account all circumstances at the point of application. It is not a straightforward issue, and as a Government we must adopt an approach that best supports our objectives while complying with our legal obligations. As I am sure my hon. Friend will agree, the overriding consideration must be to use our powers lawfully and effectively, and to achieve the best results in protecting the UK and the British public.

It is right that Ministers consider whether making details public can support our aims. That is one of the tools that can be used to increase the effectiveness of the ban, but it can be done only on a case by case basis, taking into account the individual circumstances. It would of course reflect the impact on the individual concerned and the wider policy aim, as well as the impact on wider Government objectives.

[Mr Raab]

The Minister is setting out the Government’s position with a degree of clarity that I have not previously heard. She talks about the considerations when the Government decide whether to make public the name of someone who has been banned, including whether doing so might deter or correct that behaviour. If we are dealing with people who are complicit in torture and there is enough evidence to substantiate and justify a visa ban, what possible countervailing reason can there be, whether it is to change their behaviour or otherwise, for not making their name public? Would not making their name public deter others?

[Karen Bradley]

My hon. Friend, as always, makes a coherent argument. The point, however, is that a decision to make someone’s name public will depend on individual circumstances. A blanket approach would be wrong, because decisions will depend on each case’s individual circumstances and evidence. We must consider such decisions on a case by case basis, rather than having an overriding one-size-fits-all approach to all cases involving, for example, torture. That leads me to his specific points. He is, as always, persistent and tenacious in his arguments, but I am sure he understands that I cannot comment on the individual cases that he listed.

The UK fully implements a range of travel bans agreed by both the United Nations and the European Union. The bans target certain individuals, such as those associated with the Syrian regime, the situation in Ukraine or terrorist groups such as al-Qaeda and the Taliban. We consider the bans to be an effective tool both to disrupt the activities of certain individuals and to send a clear signal that the international community does not accept those activities.

The Home Secretary has the power specifically to prevent individuals from entering the UK so that the Government can protect the UK’s interests and security without disrupting travel more widely. Sanctions are internationally agreed where there is a collective decision to take action against certain individuals. By their nature, therefore, sanctions must be shared across a range of authorities and organisations. The UK has a duty of confidentiality, which means that we do not routinely disclose information about the immigration status of individuals. Additionally, we believe our objectives are often best delivered by working with others away from the glare of publicity.

The promotion and protection of human rights continues to be a key priority in our foreign policy. Human rights form a key element of the Government’s engagement with our international partners. Denying entry to the UK and, where appropriate, preventing travel to the UK has the potential to influence behaviour. We will continue to use immigration powers to achieve that end.

In conclusion, the Government make no apology for refusing access to the UK if we believe someone’s presence is not conducive to the public good. Coming here is a privilege that we refuse to extend to those who seek to subvert our shared values.

Question put and agreed to.

Immigration Bill

Dominic Raab Excerpts

Thursday 30th January 2014 Commons Chamber

[Mr Hanson]

I do not share the hon. Gentleman’s judgment on most issues, but that could be looked at. My hon. Friend the Member for Croydon North (Mr Reed) attended discussions yesterday on this matter and we will look at those matters in detail.

We are not the Government today; we are the official Opposition, on behalf of whom I say that we have severe concerns about new clause 15 and about the process and potential implications of new clause 18, but we will reserve judgment on that. The issue of the removal of tribunals is one that we need to address and to delete from the Bill. We need to look at some of the other issues before we give the Home Secretary unqualified support.

After many weeks of discussion, we have an Immigration Bill on which the Government appear to me, as a simple Front Bencher, to be in chaos on some of the key issues on which they will be judged. We must judge the Home Secretary on what she says, but there are real issues that need to be resolved. I would welcome hearing from the hon. Member for Esher and Walton why he believes that his proposal will not breach the ECHR on these matters. With that, I conclude to ensure that hon. Members have an opportunity to contribute.

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

I wish to speak to new clause 15 and amendment No 62 in my name and that of 105 other hon. Members from across three parties in this House. Subject to the will of the Chair, of course, I intend to press them to a vote to test the opinion of the House.

I welcome the engagement and consultation with officials and Ministers over what has been a two-year period, and with Opposition Members. I think what the shadow Minister said was code that they are going to abstain and I welcome that as well.

[Mr Hanson]

My gut instinct at the moment is not to support the hon. Gentleman by actually voting against him. I want to hear what he has to say and I also want to hear from the Home Secretary on whether there are further measures that we could jointly take to tackle the curse of foreign criminals not being deported in an appropriate way that meets our ECHR obligations.

[Mr Raab]

I thank the shadow Minister for his intervention, which was a very elegant way of sitting on the fence again.

The problem with which the new clause and amendments would deal results from the judicial expansion of the right to family life under article 8 of the European convention, which allows serious foreign criminals to evade deportation. It is, I think, common ground that the Strasbourg Court has steadily eroded United Kingdom deportation powers over the past few decades, but the tightest fetters have come from the UK courts as a result— rightly or wrongly—of the Human Rights Act 1998.

--- Later in debate ---

[Michael Ellis]

I admire my hon. Friend and respect his position, but my fundamental concern about his new clause is that it is being described by lawyers—from both the Labour party and the Government, it seems—as a measure that is incompatible with the legislation, will not work, and will actually slow the process down. I want us to deport as many foreign criminals as possible, but will not the new clause make that more difficult?

[Mr Raab]

I know that my hon. Friend takes a close interest in these matters, and I shall try to address his point very squarely. I urge him to intervene again if he feels that I have not done so satisfactorily, in which case I shall spell out my argument more clearly.

My new clause differs from the clauses in part 2 in that it is mandatory. Serious offenders cannot pull out and wield article 8 as a joker to trump deportation. Unless there is a tangible threat to life or limb, those convicted killers, rapists, drug dealers and other serious criminals should be sent home: they should not remain on the streets of Britain.

I spent a long time crafting and consulting on my new clause. It allows a very narrow exception to the wider automaticity of deportation when that is in the overwhelming humanitarian interests of the children involved, but the discretion is to be exercised by the Home Secretary rather than the courts. The new clause uses a Home Office mechanism, or model, to protect that discretion from human rights challenges by expressly stipulating that the only challenge can be by way of judicial review.

[Mark Pritchard]

As my hon. Friend knows, I am one of the co-signatories of the new clause. However, the Home Secretary legitimately raised the possibility of unintended consequences should the new clause remove the discretion and flexibility that currently exists in relation to the discretion to deport someone who has been in prison for less than 12 months.

[Mr Raab]

My hon. Friend has made a perfectly reasonable point, but the new clause is tailored to serious criminals, which is all the more reason for it to be considered reasonable and proportionate. Of course, if the Government wish to insert a provision covering persistent petty offenders—which would be far more likely to attract challenges under article 8, because in the case of less serious offences deportation is more likely to be deemed disproportionate—they will be able to do so. However—it is odd to be attacked for not being tough enough—I think that the main focus should be on those who are jailed for a year or more. That is the model in the UK Borders Act 2007.

[Sarah Teather]

May I take up a point that I made to the Home Secretary earlier? As the hon. Gentleman knows, people are often trafficked, but the fact that they have been trafficked is not recognised immediately. Such people may have committed crimes while being trafficked, and may have served sentences of more than a year. It seems that, as a consequence of the restrictive nature of the new clause, we would be willing to send those people back to enslavement following the removal of article 4.

[Mr Raab]

That is an important point, but I think that I can give the hon. Lady some reassurance. If I understood her correctly, she was suggesting that because article 4 would be removed as an excuse for trumping deportation, we could send people home to be subject to slavery or something akin to it. That would automatically be caught by article 3, which covers “inhumane or degrading treatment”. There has never, to my knowledge, been a case in either the Strasbourg or the United Kingdom courts in which deportation has been trumped on the basis of article 4. It would already be covered under article 3, which is very well-trodden ground. I therefore think that her entirely legitimate concern has been catered for, but if she wishes to intervene again, I will give way to her.

[Sarah Teather]

What about other matters relating to the convention, such as the right to practise one’s religion and the right to a private life in relation to one’s sexuality? Is there not a possibility that people would be sent back to a country where they would be persecuted?

[Mr Raab]

From the sound of it, I have reassured the hon. Lady on the first point, which is good news. On the second point, a deportation order has never been trumped on those other grounds. The only grounds on which that has happened are article 2 on the right to life, article 3 on the right not to be tortured and article 8, which now makes up the lion’s share. I therefore do not think that that problem would arise. She talked about persecution. Let us be clear that any persecution that threatens life or limb is already caught by the exceptions under articles 2 and 3. I have deliberately preserved those because the hon. Members from across the House who support the new clause and I support the absolute prohibition on torture and inhumane or degrading treatment. If she is really concerned about this focused issue, those exceptions will deal with all those cases.

[Mr Jack Straw (Blackburn) (Lab)]

Is there not a prior point that if someone has a genuine, well-founded fear of persecution by the state to which they might return, they have a near absolute right to claim refugee status in this country under the 1951 convention?

[Mr Raab]

The right hon. Gentleman is absolutely right. We probably would not even get on to article 2 or 3 in such cases. That situation is preserved under my new clause. I thank him for that important intervention.

[Dr Huppert]

Will the hon. Gentleman give way?

[Mr Raab]

I will make a little progress, but I will certainly come back to the hon. Gentleman.

The key difference between my proposals and part 2 of the Bill is that my proposals would deal with the problem. They do not require us to scrap the Human Rights Act or pull out of Europe. To the great chagrin of some of my colleagues, my proposals do not dip their toe into those totemic, polemical matters. They would not be struck down by UK judges, because they would be unequivocal primary legislation with overriding force. They are expressly within the terms of the Human Rights Act. That is spelled out in the memo to which the shadow Minister referred, if he reads it carefully.

We must be clear that incompatibility and illegality are two different things. It is clear that the UK courts would enforce the new clause that I am putting before the House. It is also clear from the most recent Home Office advice that I have received, to which hon. Members have also referred, that the new clause would not attract a rule 39 injunction from Strasbourg. That is because there would be no irreversible harm. It is extremely rare that Strasbourg would even consider a rule 39 injunction in such a case. The original memo that the shadow Minister cited referred to this matter, but the most recent memo from the Home Office team that has been sent to me, which is from November, is very clear:

“we do not expect interim measures under Rule 39 to be issued routinely, if at all.”

Of course, it is likely that if my new clause attracted a rule 39 injunction, the clauses in part 2 would be equally susceptible to such a challenge. That is the key point: the official advice from the Home Office is that such a challenge is very unlikely.

[Richard Fuller]

Will my hon. Friend give way?

[Mr Raab]

I will just expand on this point. I have quoted the advice that I have received. If anyone thinks that the new clause has been tabled with the aim of flouting UK law or engaging in illegality, as opposed to doing something that might be incompatible with the wider, opaque obligations of the ECHR, they misunderstand the point. It is wrong to say that that is what the Home Office’s advice states, because I deliberately sought its advice.

Even if we face a longer-term claim to Strasbourg that is not based on injunctive relief, the new clause remains faithful to the convention. We must not forget that for a second. Paragraph 2 of article 8 on the right to family life provides a list of grounds for curtailing the right to family life, including law enforcement, crime prevention, public protection and protecting the rights of others, which is what the colleagues from both sides of the House who support the new clause care so deeply about.

[Chris Bryant]

I understood the hon. Gentleman to mean that he had sought the same legal advice as the Home Secretary. The Home Secretary said clearly that the Attorney-General had said that new clause 15 was incompatible with the European convention on human rights, but the hon. Gentleman says that he has seen the same advice and that the new clause is compatible with the convention—or have I got that wrong?

[Mr Raab]

Very briefly, that is not what I was saying. I think that the hon. Gentleman has added one and one and made three. I have received a memo from the Home Office team that sets out the position on rule 39 in relation to article 8 cases. Precisely because of the concerns that are shared across the House, I asked whether we were likely to see a deportation process gummed up by a rule 39 injunction.

[Chris Bryant]

So the Home Secretary is wrong.

[Mr Raab]

I will come to that, but I want to be clear about what the advice is. The advice that I received from officials was that Strasbourg would rarely, if ever, consider a rule 39 injunction in relation to an article 8 case because there is no irreversible harm.

[Mrs May]

If I may, I will make a triaged intervention, Madam Deputy Speaker. To clarify, all I said was that I had received legal advice. It is not the practice for Ministers to say in this House whether legal advice has come from the Attorney-General or from other sources. I am absolutely clear from the legal advice that I received that new clause 15 is incompatible with the European convention on human rights.

In answer to my hon. Friend, the advice from the Home Office is absolutely clear that a rule 39 injunction would be less likely to be imposed where the decision had undertaken a balancing act in considering the issues. That is precisely what the Bill allows. My hon. Friend’s new clause does not allow that. That is why rule 39 would be more likely to be used under his proposal.

[Mr Raab]

I thank the Home Secretary for her intervention. I have the memo that I received in front of me. I will read from it so that there is no doubt and so that hon. Members can make up their minds. It states that it is clear from the case law that

“it would only be in exceptional cases that an interim measure would be granted in an A8 case.”

It goes on to say:

“I can’t say whether there has ever been a Rule 39 in a UK A8 case, but it is obviously rare.”

It goes on to say, because I was asking the question in relation to the Government’s clauses:

“we do not expect interim measures under Rule 39 to be issued routinely, if at all.”

I do not want to engage in a clash of legal opinions here, although the Attorney-General is free to intervene on me, but I say briefly in response to the Home Secretary that there is nothing in the limited case law of Strasbourg to suggest that the Bill and the new clause that I have tabled are different. One never gets such precision from the Strasbourg Court and I do not think that that is what the Home Secretary meant.

[Mr Bone]

My hon. Friend seems to have won over one Member of the House who is not here at present, because the BBC is reporting that the Prime Minister supports his aim and has ordered his Ministers not to oppose him.

[Mr Raab]

I thank my hon. Friend for keeping the House updated on that important development.

The key point is that it is clear from the text of the European convention—I have referred to paragraph 2 of article 8—that, under the terms expressly set down by the architects of the convention, the new clause is proportionate. It is proportionate because it applies only to serious criminals who have been imprisoned for a year or more. It therefore ought to withstand any appeal to Strasbourg.

I remind the House that we are not entirely sure how any litigation in Strasbourg on this issue would pan out, whether on the basis of the Bill or the new clause. That is partly because the 47-member-state Council of Europe, to which the Strasbourg Court is accountable, has made two recent declarations in Izmir and Brighton calling on Strasbourg in unequivocal language to meddle less in immigration cases. We therefore have every reason to believe that we will have a greater margin of appreciation in future. I pay tribute to the Minister without Portfolio, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for the efforts that he made when he was Justice Secretary to achieve those resolutions, which have paved the way for the new clause.

[Sarah Teather]

Will the hon. Gentleman give way?

[Mr Raab]

I will not give way again, because I have been reasonably generous to the hon. Lady and I want to give other Members an opportunity to speak.

If we are honest, we know that any serious reform in this area risks being frowned on by the Strasbourg Court at some point in the future. The goalposts keep on shifting. That is how we got to this point in the first place. However, the same objection applies to the Bill. As the president of the Supreme Court and the former Lord Chief Justice, Lord Judge, have stated many times, the last word on the balance between human rights and public policy must remain with the UK courts and, ultimately, with elected and accountable law makers in Parliament.

There has been a lot of heady talk about human rights reform. Today, we have an opportunity to do something about it.

[Dr Huppert]

Will the hon. Gentleman give way?

[Mr Raab]

I will not give way because I want to give other hon. Members a chance to speak. I am sure that the hon. Gentleman is one of those who will be queuing up.

New clause 15 and amendment 62 are practical, common-sense proposals that would protect the public, restore some common sense to our justice system and restore some trust outside this place. I commend them to the House.

[Mr Straw]

On 24 November 2003, a young girl aged 9, Amy Houston, was killed on the west side of my constituency of Blackburn by a man driving a motor car, Aso Mohammed Ibrahim. He was an unfounded asylum seeker with no basis for remaining in the United Kingdom, and at the time of the motor accident had a number of convictions for driving while disqualified and driving without insurance. He received a relatively short prison sentence for causing death by careless driving. Thereafter, he developed a relationship with a woman in my constituency who already had two children by other men. He then went on to commit further offences.

When the Home Office made efforts to deport Aso Mohammed Ibrahim, he resisted them on article 8 grounds. The matter went before a tribunal, which found in his favour. I was Justice Secretary by that time, and I spoke to the then Home Secretary, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), who ensured that a vigorous appeal was mounted in respect of that tribunal judgment. A new appeal was established, but that too was lost. Principally, it was lost on the ground not of Strasbourg law but of the way in which the British courts had widened the basis of article 8 beyond that of Strasbourg in order to protect individuals in this situation.

Knowing far more about the background of the case than ever went before the tribunals, my opinion was—and remains—that that man had abused his position in this country and set out to develop a relationship with a woman and have children with her solely in order to evade deportation and immigration controls. It is a matter of regret to me and to my right hon. Friend the Member for Kingston upon Hull West and Hessle that the courts appeared to endorse his wilful decision to evade those controls.

It is for those reasons that I, and those on my Front Bench, strongly support the amendments to the law that appear in clause 14 of the Bill. I have great regard for the hon. Member for Esher and Walton (Mr Raab), and I have talked to him at considerable length about the merits of his new clause. I am also listening carefully, as I said I would, to the debate today. I have no difficulty with seeking to direct the British courts towards a different conclusion from that towards which they are currently directed by the higher domestic courts in this country. That is also the purpose of clause 14.

I do have a problem, however, with the House knowingly deciding to legislate in a way that the best advice suggests would be incompatible with convention rights. That is because I am a strong supporter of the European convention on human rights. If the House wishes to decide to leave the convention, or to abrogate individual parts of it, it should seek to do so explicitly, rather than through an amendment of this kind. I accept that the hon. Gentleman has thought carefully about this matter, but it is with regret that I shall be unable to support his proposal today.

I also want to say a few words to those who think that this is all about the Human Rights Act. I was the Minister responsible for the Act, and I am proud of it. I hope that I will not cause the Attorney-General, the right hon. and learned Member for Beaconsfield (Mr Grieve), too many blushes if I say that I remember his courageous maiden speech in the House, in which he spoke out in favour of the Human Rights Bill, as it then was. Those on his Front Bench voted against the Bill on Second Reading, but by the time we reached Third Reading they had come round and wished the Bill well.

--- Later in debate ---

I hope that the Home Secretary will take away and consider what the hon. Member for Esher and Walton has proposed. He was a very good lawyer in the Foreign Office when I was Foreign Secretary. He is not someone who is foaming at the mouth about the Human Rights Act. There is serious purpose in what he has suggested, and there may be a way through to meet halfway, between what the Home Secretary proposes and what he proposes.

[Mr Raab]

On this point of the legality, it is clear from how the Human Rights Act has been drafted that, where there is an incompatibility, ultimate sovereignty remains with Parliament and the Government. Therefore, the issue of illegality is separate from incompatibility. Given all the points that the right hon. Gentleman has made about the opacity, the shifting goal posts and the difficulty of nailing down the case law in Strasbourg—it does not have a doctrine of precedent—does he also agree that, for all the talk of Government legal advice, it is almost next to impossible, unless one is giving defensive and cautious advice, to give clear and focused advice on where Strasbourg will go, let alone where it is currently at?

[Mr Straw]

There are some instances where it is obvious, and some where it is less obvious. The hon. Gentleman is correct to say that even if a judgment is made by the Attorney-General, and indeed if the declaration is made by the British courts of incompatibility with the convention rights, section 4 of the Act makes it absolutely crystal clear that those provisions remain in force. That was part of the elegant architecture of the Human Rights Act. The role of the Parliamentary Counsel was to ensure that parliamentary sovereignty over individual legislation was maintained. The problem of the hon. Gentleman—as he knows I really wanted to support his position—is that the Home Secretary has a duty under section 19 of the Act to say whether or not the provisions in the Bill as it goes forward are or are not compatible with the convention.

I once signed a certificate saying that a particular Bill was not compatible with the convention, and Parliament still passed it. None the less, it does create difficulties. We cannot suddenly, on a wing and a prayer, say, “Well, in five years’ time, this will end up before the Strasbourg Court.” It is something that will come before Parliament at the next stage of this legislation.

Oral Answers to Questions

Dominic Raab Excerpts

Monday 27th January 2014 Commons Chamber

[Mrs May]

I thank the hon. Gentleman for his question. As he will be aware, the Department for Environment, Food and Rural Affairs is the lead Department on that conference, but the Home Office is heavily involved. We are working with DEFRA and are committed to continuing funding of the wildlife crime unit.

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

T2. The Normington report found that the Police Federation harasses those with dissenting views, lacks financial transparency and is a weak voice for officers. The report made 36 specific recommendations. Does the Home Secretary agree that the current chairman presiding over that systemic failure cannot be the right person to reform it?

[Mrs May]

I have to say to my hon. Friend that the current chairman of the Police Federation initiated the review. He wanted properly to review the federation’s role and whether it represents officers properly. Obviously, a number of key recommendations have come forward. It is important that the federation has had the review. If any changes require Home Office input, we stand ready to work with the federation on them.

Oral Answers to Questions

Dominic Raab Excerpts

Thursday 31st October 2013 Commons Chamber

[Mr Speaker]

I call Fiona Mactaggart—not here.

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

11. What recent discussions she has had with the BBC Trust on reducing the use of golden goodbye clauses in BBC contracts.

[The Secretary of State for Culture, Media and Sport (Maria Miller)]

It is right that licence fee payers expect their money to be spent responsibly, and a part of that is ensuring that these matters are subject to the right level of scrutiny. Under the leadership of Tony Hall, a cap on all future severance payments has already been implemented.

[Mr Raab]

I thank the Secretary of State for that answer. Does she agree that the BBC must comply with the Public Accounts Committee order for disclosure of the 150 senior managers who received pay-offs at taxpayers’ expense? Has she made that clear to the director-general and the chairman of the trust?

[Maria Miller]

I, like my hon. Friend, believe transparency is incredibly important, and in particular for the BBC for the reasons I have just given regarding what licence fee payers expect. Detailed decisions about the disclosure of personnel information are squarely for the management of the BBC, but I understand the point my hon. Friend makes.

Intelligence and Security Services

Dominic Raab Excerpts

Thursday 31st October 2013 Westminster Hall

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

It is a privilege to serve under your chairmanship for the first time, Mrs Riordan. I pay tribute to my co-sponsors, particularly the hon. Member for Cambridge (Dr Huppert).

It is right that this debate should be underpinned by cross-party support. Neither our security nor our freedoms should be the subject of partisan politics. I think we all agree that the burden of responsibility on our intelligence agencies to keep us safe is heavy, and we pay tribute to them.

I had the privilege of working with the agencies, including GCHQ, during my six years at the Foreign Office, and I know first hand that their work is vital. In his recent speech, the MI5 director general, Andrew Parker, set out the current security challenges that Britain faces, and I pay tribute to the officers who, out of the limelight, work unstintingly to protect us from those dangers.

I also pay tribute to Mr Parker for an under-reported aspect of his speech. While discussing trying to reduce the terrorist threat, he observed:

“In a free society ‘zero’ is of course impossible to achieve...A strong record of success risks creating an expectation of guaranteed prevention. There can be no such guarantee.”

As an MP and a citizen, I recognise that bitter truth. We in this House have a duty to ensure that the public grasp it, too.

Similarly, any democratic Government must be accountable to their citizens, particularly if they impinge on their citizens’ freedoms in the necessary pursuit of security. In recent years, UK surveillance of its citizens has increased exponentially, and the legal basis has sometimes, and now regularly, appeared strained at best. Oversight is frayed and legitimate debate is at risk of being drowned out by frankly untested assertions of national security.

In June, The Guardian published revelations by US National Security Agency whistleblower Edward Snowden that GCHQ was clandestinely tapping transatlantic fibre-optic cables, giving almost unfettered access to people’s phone call records, e-mails, Facebook entries and the like. The legal basis for Operation Tempora looks thin at best, and Parliament certainly had no idea of the scale of the use of those powers.

We also learned that Britain receives data from the US Prism surveillance programme, which appears to allow GCHQ to dilute—not circumvent entirely, but dilute—the safeguards that would apply if the same agencies were to gather the information themselves.

[Richard Graham (Gloucester) (Con)]

My hon. Friend mentions that there has recently been increased activity by the intelligence agencies. He is no doubt aware of the number of serious attempts at major acts of terrorism; there have been about two a year since 2000. Some 330 people have been convicted of serious terrorist activity, and there were four major threats in the first half of this year, including a 7/7-type attack. Twenty-four terrorists were convicted in the first half of this year alone.

Does my hon. Friend understand the extent of the frustration, particularly among those working in the Gloucestershire-based GCHQ, that such suspicions are raised against their activity when, actually, they are trying to protect British people from catastrophic terrorist attacks?

[Mr Raab]

I thank my hon. Friend for his intervention, but he is wrong as a matter of fact. According to the terrorist threat assessment given publicly in annual speeches by successive director-generals at MI5, there was a spike—

[Richard Graham]

indicated dissent.

--- Later in debate ---

[Mr Raab]

My hon. Friend is shaking his head, but this is what the MI5 director-general said, so we ought to pay it some heed. There was a spike after 9/11, but it then dipped. In the most recent speech, given this month, the director-general said that the threat had not got worse.

My hon. Friend is certainly correct to pay tribute to the unstinting work of the intelligence agencies and law enforcement. In fact, however, the conviction rate for terrorist offences has reduced dramatically, which is also a real issue—the question of prosecution, rather than intelligence, if we are not only to keep track of, but to disrupt and deter, terrorist activity.

In this month’s speech, the MI5 director-general also lambasted The Guardian for handing terrorists a “gift”—he used a potent word. More recently, Ministers have claimed that the disclosures have put lives at risk. I want to take that seriously, because Mr Parker claimed that making public

“the reach and limits of GCHQ techniques”

breaches national security. To be clear about what was being discussed, the newspaper was not disclosing interception techniques—the technical aspect—or revelations of sources or operatives, which would clearly be a major source of concern, but simply revealing our intelligence “reach”. I find the assertion that was made difficult to take at face value. The contention may be true, but it cannot be taken on mere assertion.

Any serious terrorist groups assume that their phones, e-mails and internet use will be monitored. That is no secret, and learning that Western spies drain the swamp of their own citizens’ data in the process does not aid terrorists in any tangible way. If national security had been materially breached, why has no one at The Guardian been charged or even arrested since the search of its offices back in July? Why was David Miranda not arrested and bailed, following his detention for several hours at Heathrow, in August? Either UK law enforcement is surprisingly slow—given the assertions—or national security is being used as a fig leaf to muzzle disclosures that are just plain embarrassing.

I accept, by the way, that the disclosure that 850,000 contractors can access data from Project Tempora represents a security concern, but of course that vulnerability is entirely of the Government’s own making.

I am prepared to be proven wrong about all that, but Ministers and intelligence chiefs need to understand that the bald assertion of national security cannot be used to guillotine all debate. We are here to correct that understanding. Without revealing details that would prejudice the work of the security services, we need a coherent explanation of the damage to national security, not only vague and opaque assertions.

[Mr Wallace]

Will my hon. Friend give way?

[Mr Raab]

I will not give way, because I am conscious of time. If I get through my speech, I will be happy for my hon. Friend to intervene.

From reports in The Guardian, we also know that the Government are concerned about the legality of the powers that they are using—fears that public debate might lead to litigation, fears about legal challenge under the Human Rights Act. Those are legitimate concerns. I recall similar ones from my own experience of working with the agencies as a Foreign Office lawyer. Those, however, are altogether more nuanced concerns than the shrill and unsubstantiated suggestion that we have somehow lost track of terrorist plotters as a result of the revelations.

The issues need to be debated in Parliament, not stifled by the blanket assertion of national security. Scrutiny is vital. In the US, as mentioned, the Democrat chair of the Senate Intelligence Committee, Dianne Feinstein, has called for a total review of NSA surveillance:

“Congress needs to know exactly what our intelligence community is doing.”

This week, on a bipartisan basis, a USA Freedom Bill was proposed in Congress, with support from more than 80 Congressmen—including, no less, the architect of the US Patriot Act, Republican Jim Sensenbrenner. The Bill would block collection of bulk data on American citizens, insert judicial oversight—something missing in this country—and increase transparency and reporting on the part of companies and Government. If that is good enough for the Americans, why here in Britain would we settle for anything less? Congress and the public in America have woken up to the scale of unfettered surveillance, and it is time that we in this House did the same.

What do we need to do next? First, we need a proper account to Parliament of the exercise of existing surveillance powers. Why and where are they deemed inadequate? Will the Minister, when he has the opportunity to speak, confirm that no MPs have been subjected to such surveillance, given that the House has not been informed of any change to the Wilson doctrine? Will Ministers clarify the extent to which GCHQ was involved in what has recently been reported about the NSA tapping Google and Yahoo! communications, without consent or any observation of the authorisation procedures agreed with those companies?

Secondly, if there are shortcomings—we need to be alive to those, on both sides of the debate—we need a clearer explanation of their impact on national security. Successive Governments have been remiss in proposing such broad data communications legislation, beyond the imperatives of national security or of access by police and the intelligence agencies, as most people and most Members of the House accept. That has undermined parliamentary and public support for the more forensic task of plugging any holes in our intelligence capabilities.

Thirdly, we need to consider any exposure of our agencies to “fishing expedition” legal challenges—I understand that concern. GCHQ has cited the Human Rights Act, a concern that I suspect stems from the expansion in the right to privacy under article 8 of the convention. If there is broader concern about the HRA, that must feed into the debate about its future.

Finally, I am not convinced that the Intelligence and Security Committee is able to provide the oversight that we need. I say that without casting any aspersion on current or former members, least of all its formidable Chair, who is present today. I do not believe, however, that the ISC has the tools or the independence to do the job properly. It is billed as a creature of Parliament, but through its appointment and accountability, and under the statutory regime, it is ultimately and really beholden to the Executive. It needs to develop into more of a Committee of the House, tailored in a bespoke way, but acquiring more of the powers and independence of normal Select Committees, if it is to deliver the kind of oversight capable of commanding public confidence.

Above all, we must take this debate forward, away from the polarised and untested assertions on either side, and place the work of those who would protect us on a firmer footing. Karl Popper said:

“We must plan for freedom, and not only for security, if for no other reason than only freedom can make security more secure.”

We need to pursue our security in a way that respects our freedoms, limits incursions to genuine cases of national security and does so under a regime that commands the rule of law. Failing to do that would be the real gift to the terrorists—a victory for everything that they believe in and a blow against everything we stand for.

--- Later in debate ---

[Richard Graham]

After that distraction, I am delighted to continue and to hear that the hon. Member for Walsall North does not imagine that our intelligence services are interested in readers of the Daily Mirror per se. The later accusation from the right hon. Member for Oldham West and Royton was disappointing. My constituents who work for GCHQ are unable to answer back directly. We should take the word of the senior judge that they act within the highest levels of integrity and legal compliance. That is a crucial part of the oversight of the intelligence agencies, which is ultimately the responsibility of our Parliament.

My hon. Friend the Member for Esher and Walton (Mr Raab) was wrong to say that threats are diminishing. My intervention on his speech quoted directly from the recent speech of the director-general of MI5. It was quite clear from the statistics that he gave that threats have increased from an average of one or two a year for the past 10 years to four major threats in the first half of this year. On average, 33 terrorists have been convicted every year for the past 10 years, but 24 have been convicted in the first half of this year already.

The truth is that the threats are becoming more complicated and more sophisticated. They come not necessarily from states but from individuals or organisations.

[Mr Raab]

Will my hon. Friend give way?

[Richard Graham]

Alas, there is so little time. The threats include nuclear proliferation, cyber-attacks, attacks on our intellectual property, organised crime and new weapons. Although we must ensure that our laws and our ability to review the intelligence agencies are properly supervised, we should not be naive or foolish in any way about the threats to our nation. Above all, we must remember that the primary duty of any Government is the protection of their citizens. Within that, the most important new power of the ISC is its ability to hold to account the operational activities of the intelligence agencies. We should allow the ISC to use its new powers, but we must also ensure that those agencies remain able to maintain their competitive advantage against threats and to keep us safe. In the balance between protecting our freedoms and protecting the safety of our citizens, I hope that the Minister will allow the ISC to go about its business with its new powers, and Parliament should ensure that it is indeed performing its duty.

Eurojust and the European Public Prosecutor’s Office

Dominic Raab Excerpts

Tuesday 29th October 2013 Commons Chamber

[Diana Johnson (Kingston upon Hull North) (Lab)]

I thank the Minister for his characteristically thorough and detailed explanation of the motion.

Tonight the House is discussing the two issues of European co-operation on justice and home affairs: Eurojust and the European public prosecutor’s office. If anyone is feeling a sense of déjà-vu, that is because the House discussed the EPPO this time last week. Indeed, there was a rare moment of unity when those on both sides of the House agreed with the Government, the previous Government and the European Scrutiny Committee that the creation of the EPPO did not meet the test of subsidiarity and that the UK should therefore opt out. In government, Labour secured an opt-out from the EPPO and in opposition we support the Government in continuing to use that opt-out. We have also heard that the yellow card has now been issued.

Given the degree of unity in the House and as we debated it at length last week, I do not intend to dwell on the subject of the EPPO. I note what the Minister said about the links between the EPPO and Eurojust, but I think that we should particularly consider Eurojust.

To recap, Eurojust was established in 2002 and in 2001 the EU Commission conceived its role as

“facilitating cooperation between Member States and contributing to proper coordination of prosecutions in the area of serious, and organised, crime.”

Its concern is so-called “annex 1” crimes such as drug trafficking, human trafficking, terrorism and financial crimes. Those are serious crimes that constantly evolve and adapt. Increasingly, they cross borders and require co-operation between different jurisdictions. The importance of Eurojust to the UK is underlined by the fact that there have been 1,459 requests from EU member states for co-operation with Britain through Eurojust since 2003, with 190 requests made in 2012 alone. It is therefore a little disconcerting to see the Government playing the hokey cokey—we are in at the moment, but now we are opting out although, in principle, we might be back in again in the future.

The primary functions of Eurojust have been and will continue to be the facilitation of co-operation between member states. Eurojust is required to respond to any request from a member state and to facilitate co-operation. That role means that Eurojust must inform member states of investigations and prosecutions that are occurring in a different member state but affect the member state; assist the competent authorities of the member states in the co-ordination of investigations and prosecutions; provide assistance to improve co-operation between member states; co-operate and consult with the European judicial network in criminal matters; and provide operational, technical and financial support to member states’ cross-border operations and investigations, including joint investigation teams.

The key thing to remember is that Eurojust seeks to support member states in conducting investigations, unlike the EPPO, which seeks to undertake the prosecutions itself. The distinction is vital and the aim of the British Government should be to continue that element of Eurojust.

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

The hon. Lady talked about the hokey cokey of the Government’s position. Can she be clear whether the Opposition advocate that the UK opt in now, based on the draft regulation as it stands, with all the supra-national transfers of power entailed in it?

[Diana Johnson]

I shall come later in my remarks to what I think the Government should have been doing leading up to this point—making sure that the aspects that they were concerned about were discussed. I shall put a series of questions to the Minister about how many conversations and dialogues took place with the EU to try to get the regulation in a form that was more acceptable to the Government.

As Eurojust is based on co-operation, it places obligations on members to co-operate with joint investigations, and these obligations are set to increase. I shall come back to that. If the Government are serious about tackling human trafficking, terrorism or financial crime, for example, they need to be serious about working with European partners, but I am concerned that the Government seem to be sitting on the sidelines. Their current position appears to be that they would like the UK to stay in Eurojust as it is now, but they are content to let everyone else get on with a new Eurojust, which they are not part of, but which they hope they might get back into in the future. What we should do is work with our European partners to get a Eurojust system that works for us.

--- Later in debate ---

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

This motion must be considered in the context of the EU’s wider ambitions for a single policy on justice and home affairs. As mentioned earlier, the EU Justice Commissioner and vice-president, Viviane Reding, has a huge stake in this matter, and in a far-reaching speech last month she spoke about the considerable momentum towards developing a pan-European criminal code and institutions, replete with a European justice Minister—I dare say Ms Reding has a candidate in mind—and with detailed monitoring and sanctioning powers at Commission level. Those include new powers to uphold EU fundamental rights—a sort of triplication of the human rights legal framework, bearing in mind Strasbourg’s role in the Human Rights Act 1998 and UK jurisdiction, and an expanded role for the European Court of Justice. That is the clear ambition within the Commission and the broader EU. With that in mind, this is also a critical juncture for Britain. We remain poised to exercise our crime and policing opt-out under the Lisbon treaty. It is therefore the right moment—an important crossroads, perhaps—to think strategically about Britain’s criminal justice co-operation in the EU.

On the specifics of the motion, I fully support the Government’s intention not to be part of the European public prosecutor’s office. That initiative is obviously—transparently—a preliminary stepping stone towards a much more far-reaching EU prosecutor, and it must be nipped in the bud. Although it is limited, at least on the surface, to countering fraud against the EU, under current terms the EPPO would take powers away from Eurojust. It would have the power to compel UK police to hand over evidence, and to order UK prosecutors to take action. Through its relationship with Eurojust, it could place wider burdens of co-operation on member states. The scope of those obligations will, of course, be decided by the Commission, and ultimately by the European Court. As the Minister has said, we must stay out of such a measure. I welcome the Government’s decision and the Minister’s clarity of purpose and position.

We ought to emphasise the positive and we should preserve and retain our national criminal justice system. That system is steeped in a very different tradition from the civil, continental tradition, and in a different set of values. As hon. Members have already said, it is also steeped in a different functional division of law enforcement powers that enshrines a uniquely British conception of justice—one that is firm but fair.

The Eurojust regulation is a more finely balanced question. I worked in The Hague and with Eurojust, which has done important work in recent years serving as a college of co-operating national prosecutors. Personally, as the Minister has said, I would prefer it to have continued down that route and in its current form, but the new regulation gives the Commission a seat on a new executive board and places a duty on Eurojust to forge a special relationship with the EPPO. It also imposes additional stronger duties of information sharing on member states, including the UK if it signs up.

The EU Select Committee has highlighted the new powers given to representatives at Eurojust to bypass national authorities in order to process requests for sharing information or evidence, and I pay tribute to its excellent work. Again, all that would be interpreted and enforced by the Commission and the European Court, while increasing our contribution to the EU budget. I note that the Minister and the Government share those concerns and do not intend to opt in at this time. However, they leave open the prospect of “active consideration” of the case for opting in when the final text is agreed.

The Opposition position on this matter is totally hopeless. They recognise the defects in the regulation and accept the motion that the Government have put before the House. They know the Government are actively resisting the supranational elements and creeping supranational character that some seek to impose on Eurojust, yet they criticise the Government for not being in the negotiation now. Such negotiation would, of course, mean that we were irreversibly tied in to the new regime if it cannot be changed. That is utterly untenable and the kind of thing one hears only from the Opposition.

If hon. Members want to be churlish, they might question why the Government are rightly critical of the proposals, yet rather more enthusiastic about them for the future. I am not sure why that is, but I will limit myself to seeking confirmation from the Minister that the House will have an opportunity to debate and vote in advance of any later decision.

[James Brokenshire]

I am happy to assure my hon. Friend that, if there were a subsequent recommendation to opt back in on the final approved text, I would envisage the process we are going through tonight being replicated. I can confirm to him that we are keeping the option open to opt back in at that later stage precisely for the operational reasons to which he alludes—the benefits of Eurojust as it is currently constructed.

[Mr Raab]

I thank the Minister for setting out the Government’s position with admirable clarity.

Given that we are discussing the substance of Eurojust and its evolution, I want to take this opportunity to ask more broadly what strategic thinking has been done on our wider future justice and home affairs relationship. What consultations has the UK had with the Commission and other member states on renegotiating Britain’s wider relationship with the EU in that critical area? It is right to assess each regulation or measure case by case, on its individual merits and substance, in a sober and pragmatic way—the Minister has done that cogently this evening—but, at the same time, we need to look to the bigger picture and the longer-term horizon.

I worry that we will drift into a disjointed, albeit bespoke, relationship with Eurojust and the wider JHA framework almost by default, annoying our European partners without satisfying our national interest, risking the worst of all worlds. Would it not be better to grasp the nettle and spell out proactively, on the front foot, what strategic JHA relationship we want, and why that will serve the EU’s interest as well as the British national interest? In my view, that means a British commitment to be a good operational partner, with all the resources, know-how and expertise we bring to the game, but without sacrificing democratic control over such a sensitive area of national policy. It means saying to our European friends that our co-operation within Eurojust will improve operationally as trust and confidence develop, but that we cannot accept any further transfers of authority or control to the supranational level.

[Mark Reckless]

When my hon. Friend was a witness in the Home Affairs Committee, he recommended that, in respect of Europol, we might want to adopt the Frontex model. Does he believe that that could be an appropriate model for Eurojust?

[Mr Raab]

My hon. Friend is, as ever, spot on. Each area is fundamentally functionally different, but Frontex shows that countries do not have to be formal members that have signed up in a formal way to be active operational partners. We have heard that from the head of Frontex. It is at least a starting point for evolving our relationship with Eurojust and Europol. If, as I suspect, others within the Commission and member states want to go down the federalising route, that option should be clearly discussed now. We should be on the front foot, and not ashamed or beguiled from talking about it.

We need to make it clear that we cannot accept any further transfers of authority, or the salami-slicing of national democratic authority—that is what we are seeing in the attempts to upgrade Eurojust and Europol. Will there ever be a better moment to have that candid but constructive conversation with our EU partners? I doubt it. Government Members have a commitment to renegotiate our relationship with the EU and to put the renegotiated deal to the British people in a referendum. We know that the British people care. According to a ComRes poll for Open Europe last year, repatriating UK control over crime and policing ranks fourth on the public’s list of priorities for renegotiation. That is very high compared with the other priorities surveyed. We also know that there is significant scepticism among the wider public at large on whether any politicians keep their promises on Europe.

The Labour party is responsible for that haemorrhaging of trust. The Government have a genuine chance to rebuild public trust. That ought to start with the decisions we are taking now and over the next six months on crime and policing, underscored by a two-pronged strategic approach to our future JHA relationship with the EU—one that pledges the full operational co-operation of a strategic ally but defends the return of full democratic control, which the British people want and expect.

National Security (The Guardian)

Dominic Raab Excerpts

Tuesday 22nd October 2013 Westminster Hall

[Julian Smith]

I agree that the NSA placed itself in a very odd situation.

The next step was to secure the documents and data, as there was a real fear that terrorists would seek to access that information by targeting The Guardian, and the Government had no confidence in the paper being able to protect the information it held. Unfortunately, the Government were not the only people making that assessment. The WikiLeaks hacker Jacob Appelbaum, who has worked with Glenn Greenwald, has tweeted repeatedly about the non-existent security under which Guardian editors held those files. Last week, he pointed out that laser microphones are routinely used as listening devices through windows and that The Guardian’s so-called secure room has floor-to-ceiling windows ideal for such remote listening by any interested foreign power or terror cell.

On 3 October, Mr Appelbaum tweeted:

“I’ve seen the horrible operational security at the Guardian over the last three years—it makes the New York Times look solid.”

And he scoffed:

“They shipped Top Secret documents by FedEX.”

Hackers have heavily implied on social media that they can access The Guardian’s US files.

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

I understand my hon. Friend’s points. He is thoughtful on such issues, so I carefully heed what he says. One issue I have never understood is that, for all the scaremongering about national security, if either Mr Miranda or The Guardian has impaired national security in any tangible way, why has nobody been charged?

[Julian Smith]

If my hon. Friend looks at the witness documents for the court case, he will see that charge may be likely, but I do not think it is appropriate to comment on that in this place.

The Guardian agreed to the Government’s request to destroy the data it held in its London office, but soon after it not only revealed the confidential discussions that took place with Her Majesty’s Government but advertised to the world that it had sent copies of the files, including information on GCHQ, to The New York Times in an article titled “Guardian partners with New York Times over Snowden GCHQ files.” In its various discussions with the Government during August, The Guardian did not reveal that it had made copies of the files and sent them overseas.

Today’s debate is not an argument to muzzle the press. As Oliver Robbins is at pains to point out in his witness statement, there has been significant sensitivity to the fact that The Guardian is a newspaper. Like the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Grantham and Stamford (Nick Boles), I am deeply uncomfortable that a left-of-centre axis is driving us toward press regulation. Newspapers should be free to report, and they should be punished under existing laws if they commit crimes.

The Guardian was right, having received the NSA files, to report on them in some way. If journalism—receiving and reporting on leaks—were all that The Guardian had done, Parliament and MI5 would not now be involved. Indeed, when the full tale of the damage done to British security is revealed, our Government might be criticised not for how much it interfered with a newspaper but for how much it trusted one.

Immigration Bill

Dominic Raab Excerpts

Tuesday 22nd October 2013 Commons Chamber

[Yvette Cooper]

We have said that we should have had transitional controls for eastern Europe. Government Members need to consider how they can defend the fact that since the election deportations have dropped by 7% and deportations of foreign criminals are down by 14%, and how they can explain why the number of illegal migrants absconding at Heathrow has trebled since the election and why the number caught afterwards has halved since the election.

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

Will the shadow Home Secretary give way?

[Yvette Cooper]

I ask the hon. Gentleman to explain that point if the Home Secretary will not.

[Mr Raab]

The right hon. Lady is in a rich vein of contrition. Will she add to her list of apologies an apology from the last Government for signing up to EU rules that made it much harder to tackle benefit tourism and, on the point that she has just raised, human rights laws that made it much harder to deport foreign national criminals?

[Yvette Cooper]

There is nothing in the Bill about the matters that so concern the hon. Gentleman. Where is his apology for the fact that the number of businesses that are fined for employing illegal migrants has halved since the election? Again and again, action on illegal migration has got worse and enforcement has deteriorated since the election.

--- Later in debate ---

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

I congratulate the Home Secretary and the Minister for Immigration and fully support the objectives of this important Bill. Britain must of course remain an outward-looking nation in the 21st century, but the British people do not want to become a soft touch for those arriving who are not capable of contributing and who are dependent on the state rather than self-reliant. We should enforce the law to prevent and deter illegal immigration and discourage benefit tourism, and we most certainly should remove those who commit serious crimes and abuse their right to be here.

Public confidence in the ability of the political class to grapple with the concerns over immigration is itself a major issue. I listened carefully to many Members who spoke this afternoon, including the hon. Member for Hayes and Harlington (John McDonnell), who is no longer in the Chamber. He drew a moral equivalence between the Bill and apartheid. I want to put on the record how offensive I find that, and I say that as the son of someone who fled the Nazi invasion of Czechoslovakia. To draw that kind of moral equivalence is utterly offensive and repugnant and shows how out of touch, albeit with legitimate intentions and objectives, he and some other Opposition Members have become.

Failing to address immigration is the irresponsible thing to do. Having worked on war crimes and as a diplomat in Europe, and having seen the rise of Geert Wilders in the Netherlands, Jean-Marie Le Pen in France and Jörg Haider in Austria, I know that that is what happens when the political elite bury their heads in the sand. That is the real fertile ground for extremist politics. Of course, the weaknesses in the current system make life harder for those we want to welcome, of whom there are many. So let us ensure that this Bill does what it says on the tin; otherwise we risk exacerbating the public concern that is the real fertile ground for extremist politics.

For all the outrage among Labour Members, I recall the speech by the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown) in 2007 at the Labour party conference, where he bellowed:

“let me be clear any newcomer to Britain who is caught selling drugs or using guns will be thrown out.”

With support from Labour Members, he passed the UK Borders Act 2007, which made deportation mandatory for foreign criminals jailed for at least a year—or at least that was the theory. But he paralysed his own legislation and broke his promise by inserting a catch-all human rights clause that led to the perverse results in the system that we see today. I know that the Home Secretary will be mindful of making sure that this time those of us on the Government Benches deliver on what we promise.

With that in mind, I want to focus on part 2, particularly the non-suspensive appeals procedure and the provisions on article 8 appeals. This is not some technical, legalistic issue; it affects real lives. In my constituency, a local waiter called Bishal Gurung was killed in a vicious attack, and the perpetrator, Rocky Gurung—no relation—was convicted of manslaughter. He evaded deportation to Nepal by claiming his right to family life, even though he is a single adult with no dependants. We are not talking about returning people who might face torture or real threat to life or limb on their return home—I certainly would not support that—but about serious criminals convicted and jailed here who evade removal on the basis of family and social ties that are often loose, if not outright artificial. Such cases, which are happening on some scale, warp the moral balance of the British justice system, endanger the public, and make “human rights” dirty words for many people, and that is a shame.

Cases such as the one in my constituency are not isolated. When I submitted a freedom of information request in 2010, it was disclosed that successful article 8 challenges by foreign national criminals were running at a rate of just under 400 per year—61% of all successful challenges. When I re-submitted the request in 2012, I found that the rate was 188 per year, but that that was 89% of all successful challenges. This is not about a few minor episodes or a few cases here and there reported by the tabloid media; it is a major issue.

The problem of violent, sexual and other offenders pleading article 8 to scupper deportation arises because of the rights inflation that has taken place in Strasbourg and here in the UK under the Human Rights Act 1998. In recent years, the European Court in Strasbourg has inflated the grounds for challenging deportation orders, adding tier upon tier of legal excuses which hamstring the effective operation of our border controls. Encouraged by the Human Rights Act, the UK courts have gone further still in stretching the application of article 8, so we cannot just blame Europe. It is not wholly a European issue, but it is at least partly a home-grown problem.

In June 2012, the Home Secretary sought to address the problem by changing the immigration rules, but because it was only a rule change under section 4 of the Human Rights Act, it has not been upheld by our courts. In the Izuazu case, Mr Justice Blake rather pointedly stated:

“Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding...and will be followed”.

I am afraid to say that I warned that, because of the way in which Human Rights Act works, the rule change alone would not be enough to stop these spurious challenges. The Act requires UK courts to read down regulations inconsistent with the Strasbourg case law or the UK’s own interpretation of the convention.

We are where we are, but we should now strain every sinew to make sure we deliver on the rebalancing of the law that we so sorely need. My fear this time around is that simply spelling out the public interest considerations in favour of deportation in article 8 cases will not achieve that aim. It leaves a very wide margin of discretion for the courts to consider, decide and balance the various competing factors for and against deportation. Under section 3 of the Human Rights Act, the provisions have to be interpreted and the balancing exercise conducted in way that is compatible with the convention, which will itself be based on the existing case law stretched by the UK courts.

The risk is that little will change in practice. In my view, it would have been better to cut out all the article 8 challenges by foreign criminals sentenced to 12 months or more—the very serious offenders. That would fit the original intention of paragraph 2 of article 8 of the European convention, and such a mandatory clause could not be trumped by article 8 because of the way in which section 3(1) of the HRA works. It states that primary legislation has an overriding effect, but only when it is impossible to read it down in a way that makes it compatible with human rights law. We will have to look at that in Committee.

The second key issue in part 2 is raised by appeal clauses 11 to 13, which aim to reduce the number of appeal decisions in order to avoid the process being strung out at great expense to the taxpayer. They also seek to allow appeals to be lodged without suspending the deportation process, so they will be heard when the appellant has already been returned, unless—this is an important caveat—removal would cause serious and irreversible harm.

I wholeheartedly support that common-sense principle, but I would be interested to hear the Minister explain how it will work in practice. What is to stop an appeal direct to Strasbourg—over the UK courts—that may result in a rule 39 indication calling on the Home Office to suspend deportation pending appeal to Europe?

For these clauses to be effective, we would need the Government to be willing to reject those rule 39 indications, which used to be treated as recommendations only, rather than as binding orders. However, as became clear during the Abu Qatada case and our debate on the Crime and Courts Bill earlier this year, the Government treat rule 39 indications from Strasbourg as binding. Will that change? If not, what is to stop these clauses being thwarted by Strasbourg?

I have taken advice from counsel on both of my points—on article 8 and on non-suspensive appeals—and it has tended to reinforce my fear that the Government’s laudable attempts to rebalance the deportation regime risk being unpicked. I would be interested to hear the Minister’s response to that.

Will this Bill really do what it says? Subject to the Minister’s reply, I will consider—my hon. Friend the Member for Rochester and Strood (Mark Reckless) has mentioned this—re-tabling my amendment to the deportation regime, which would solve the problem and which carried broad cross-party support during the passage of the Crime and Courts Bill, although we were timed out by the Leveson debate.

It is critical that we give proper effect to the laudable aims of the Bill. I praise Ministers to the hilt for diagnosing and focusing on the right issues, but we have to make sure we deliver, both to rebalance our deportation regime in favour of the public interest in removing serious criminals, and to ensure that public trust is not yet again frayed by another promise of reform that is not in fact delivered.