Data Retention and Investigatory Powers Bill

Debate between Dominic Raab and James Brokenshire

Tuesday 15th July 2014 Commons Chamber

[James Brokenshire]

I am very grateful to the right hon. Gentleman for providing that clarification and for highlighting that provision in section 2 of RIPA, which gives a sense of the extent and nature of the provisions that were contemplated when it was introduced. It was thought that it would have extraterritorial effect. Given legal challenges, other court cases and the language used in the legislation, we think it right to put that beyond doubt. That has always been the intent and practice for this measure; I repeat that the Bill does not extend the position but restates and asserts what has always been the case in the legislation. Those who may be subject to notices or warrants should understand clearly that it will apply to them if they are outside the UK.

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

I am interested in the practical application of this measure. What happens if a foreign IT provider refuses to comply, and uses encryption or another security mechanism effectively to flout the relevant order? What practical steps will the Government seek to take?

[James Brokenshire]

The approach we have taken is to promote co-operation, and stating as clearly as possible that the legislation has extraterritorial effect is a key part of that. Ultimately, given the clarity provided in the legislation, a company that did not comply with a warrant or notice served on it would be open to court challenge.

Eurojust and the European Public Prosecutor’s Office

Debate between Dominic Raab and James Brokenshire

Tuesday 29th October 2013 Commons Chamber

[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.

Proposed Europol Regulation

Debate between Dominic Raab and James Brokenshire

Monday 15th July 2013 Commons Chamber

[James Brokenshire]

My hon. Friend makes an important point. Discussions have already taken place and member states have voiced concerns. Our certainty faces a challenge because, as I will come on to say, there is an element of risk with regard to what will happen, given that there is qualified majority voting and the European Parliament can make a co-decision. Given the significance of the issues, it is right that we wait to see what the final measure looks like before deciding whether to opt in. I think that that is the right approach, which is why we tabled the motion. However, as I told the Chair of the Home Affairs Committee, that does not mean that we will not engage in active discussions with member states, the Commission and others in order to seek to influence this measure as it is negotiated.

I have discussed the proposal personally with senior law enforcement officials from across the UK. Like us, the law enforcement community supports Europol as it is now, but the senior officers I spoke to agreed that our issues with the new text are real and serious.

On the Opposition’s amendment, the Government agree entirely that it is right to consult chief constables and law enforcement partners as part of this process. We have consulted senior law enforcement officers from across the UK, including the Metropolitan police and policing partners from Scotland and Northern Ireland. However, I ask the House to reject the amendment, because ultimately this is a decision for Parliament and the amendment does not contemplate Parliament coming to a view on whether we should opt in post-adoption.

Some hon. Members may argue tonight that we should opt into this proposal and negotiate out the elements that cause us concern. The problem with that is that the proposal is subject to qualified majority voting and we cannot guarantee that we would get the changes we need. We could quite easily be outvoted in Council, and then we would be bound by the final text, even if it contained elements we could not accept.

The Government are not prepared to take risks on something as important as this, which goes to the very heart of our law enforcement. We therefore intend not to opt in at this stage, but to remain fully engaged in negotiations and work with other member states and the European Parliament to push for the changes we need.

We know that member states and the EU institutions value our experience in this area. We have already had indications that others recognise our concerns and are prepared to work with us to try to find a solution.

We do not expect the regulation to be agreed much before the end of 2015. When it is agreed, we will consult Parliament on it again, depositing the final text with an explanatory memorandum, and, as this House knows from the handling of the human trafficking directive, we will be able to hold another debate at that time.

I stress that the Government’s position has no immediate implications for our participation in Europol. As I have said, we believe it is in our national interest to seek to rejoin the existing Europol legal instrument as part of the 2014 decision process. By doing so we will retain our full membership of the organisation throughout the negotiations, so nothing will change for the foreseeable future.

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

The Minister is setting out cogently the scrutiny being exercised by the Government and the pros and cons. If we cannot remove the supranational whistles and bells, what contingency planning or negotiations are in place so that, if we do not opt back in, we can still retain operational co-operation, which, whatever anyone’s views from an ideological standpoint, most people would regard as important?

[James Brokenshire]

I heard my hon. Friend speak in the preceding debate about the importance of continuing operational co-operation. Members from all parties recognise the transnational nature of crime and the subsequent operational need for law enforcement divisions from all European member states to be able to collaborate and co-operate in order to fight it. We certainly believe that, because of the way in which Europol can bring a number of member states together in one space, it is the most effective way to proceed, provided that the appropriate safeguards are met when the measure is finally concluded and negotiated, and that they reflect the concerns that my hon. Friend raised in the previous debate about extensions into supranational competency. The Home Secretary also made clear in the previous debate her views on a European police force.

Subject to those safeguards being introduced, we believe that a reformed Europol measure is the optimum way forward, but it is clearly open to us to negotiate individual operational relationships with other member states. However, in our judgment, the nature of Europol and the intelligence work that it conducts in support of member states’ law enforcement agencies mean that our emphasis will be on seeking to influence the measure and to be in a position to opt into it following its adoption, provided that the appropriate safeguards are achieved. Again, that will be subject to further parliamentary scrutiny, and to the potential for a further debate in this House, to assess and analyse the provisions and to ensure that the appropriate safeguards are provided.

We wish to remain part of Europol, and will do so provided we get the amendments that we need, but we cannot support it at any price. We will not put our sovereignty and security at risk by committing ourselves in advance to a proposal that, as drafted, poses significant risks to both. The Government’s approach shows that we are serious about international police co-operation and about protecting the autonomy of our law enforcement agencies. I urge the House to support the motion tonight.

Proceeds of Crime

Debate between Dominic Raab and James Brokenshire

Tuesday 12th June 2012 Commons Chamber

[Mr Raab]

I thank my hon. Friend for that. I think we saw a classic piece of fence-sitting. There is a clear contradiction in the position set out by the shadow Minister, which I shall refer to briefly in due course.

The second argument against opting in is, as the explanatory memorandum explains, that there has been no formal domestic consultation yet, so the House does not have the official and formal views, based on operational law enforcement experience, of the police, SOCA, the intelligence agencies and other departments, let alone external experts and groups, on the need for and the practicability of what is being proposed. The Government are therefore right to be cautious and not to be bounced into signing up to a broad new law with far-reaching implications that have not been properly thought through. I noted that the shadow Minister has explicitly requested some gist, explanation or consultation in respect of the nature, character and substance of those submissions, yet without having seen them, he would be happy to opt in anyway. I respectfully suggest to him that the ideological view in this debate and in this House is his, in favour of more JHA integration, irrespective of the scrutiny of the merits and the substance.

The third argument against opting in relates to the costs associated with this directive. Those remain unquantified, but they could well be substantial. The directive will require changes to UK primary legislation. It would introduce new data collection requirements, specifically for evaluation purposes at the EU level. Those would create a pointless administrative burden for UK authorities and lead to an additional bureaucratic tier of EU monitoring of our practices. In addition, as has been said and as the explanatory memorandum explains, the directive’s insistence on effective remedies could add to the legal aid bill, just as we are taking difficult decisions to reduce it which require uncomfortable sacrifices at home.

The fourth objection is that the UK already has ample powers in the area of asset confiscation and freezing. The Government’s explanatory memorandum states:

“We believe that the UK exceeds many of the minimum requirements and so we do not foresee that it would have an impact on the number of cases.”

If anything, those powers have become too broad in the post-9/11 era. The amount of money confiscated by the UK authorities rose by more than 500% between 2003 and 2009, which is scarcely the symptom of a weak regime. The reality is that the directive is neither necessary nor desirable.

Under the Proceeds of Crime Act 2002, the UK framework for dealing with the confiscation and freezing of assets is perfectly robust. Let us be honest about this—I think that the shadow Minister should be honest about it: by legislating on this matter in Brussels, we would be legislating for the failings of other EU member states whose regimes are criticised by the Commission as “underdeveloped and underutilised”. In other words, we are expected to sign up to this blunt EU directive to try to encourage other EU states to pull their socks up. That is not a satisfactory basis for legislation in this country. For one thing, most of the failings in other member states arise less from legislative defects and more from deficiencies in operational law enforcement capabilities. The statement from the Commission suggests that the problem is less one of legislation and more one of law enforcement.

The Home Office recognised that point in its explanatory memorandum, which states:

“The UK does not consider that non-legislative options have been fully considered”.

That is the fifth objection to opting in. If there are alternatives to legislation, why have they not been thoroughly and properly examined by the Commission before it rushed to churn out yet another intrusive and in certain respects draconian directive?

The final objection is the impact on the UK’s 2014 opt-out decision on crime and policing, which has already been mentioned. Every time the UK opts in to one of the 130 or so measures that are subject to our block opt-out, that measure is removed from the list of laws that the UK will have the chance to repatriate by 2014. In other words, if we opt in we will automatically become subject to the jurisdiction and interpretation of the Commission and European Court of Justice. Given that Brussels will be assuming competence over broad and, for the UK, unprecedented security powers, that is not an ideological issue but a major constitutional one.

The directive is in part draconian, but it is in whole costly and unnecessary. It conflicts with basic principles of British justice and would undermine Britain’s opportunity to wrest back democratic control of justice and home affairs legislation. There is no good reason why Britain should opt in—the Opposition have not advanced one—and for principled and practical reasons, we should remain out. I commend the Home Secretary and the Minister for their rigour in reaching this decision based on the substance and merits of the matter.

[James Brokenshire]

rose—