Counter-Terrorism (Statutory Instruments)

Debate between James Brokenshire and Julian Huppert

Monday 16th March 2015 Commons Chamber

[James Brokenshire]

Before I open the debate on the three statutory instruments, I should like to make a few remarks about the current threat related to Syria and the Government’s response to it. It has been reported that three young men were arrested at the weekend after attempting to travel from Turkey to Syria. This reflects the good working relationship that we have with the Turkish authorities. Hon. Members will understand that I cannot comment on the specifics because there is an ongoing investigation, but I will say that those seeking to travel to engage in terrorist activity in Syria or Iraq should be in no doubt that we will take the strongest possible action to protect our national security, including prosecuting those who break the law.

The Counter-Terrorism and Security Act 2015 brought forward important new powers to disrupt the travel of those seeking to engage in terrorism-related activity. That included introducing a strengthened authority to carry scheme; I will return to that when I speak to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 in a few moments. Current events are a reminder of how important and relevant these counter-terrorism measures are.

It might help our consideration of these statutory instruments if I briefly outlined what the Government seek to achieve by them, and why we have brought them forward at this time. I would like to start by turning to the two communications data codes of practice. Communications data—the “who, where, when and how?” of a communication, but not its content—is crucial for fighting crime, protecting children and combating terrorism. The House will recall that last summer we enacted emergency legislation, the Data Retention and Investigatory Powers Act 2014, to preserve our data retention powers, and these codes are directly consequential on that legislation.

Communications data policy can broadly be split into two areas: acquisition and retention. Acquisition is carried out by relevant public authorities such as law enforcement agencies, while retention is carried out by communications services providers. The House will immediately see that these areas are linked; if data are not retained, they cannot be accessed.

The two codes of practice we are debating today—a revised acquisition code and a new data retention code—set out the processes and safeguards governing the retention and acquisition of communications data. They are intended to provide clarity and incorporate best practice on the use of the relevant powers, ensuring the highest standards of professionalism and compliance in this important aspect of law enforcement. We are bringing these codes forward now to ensure that the important safeguards within them, some of which follow concerns raised by the European Court of Justice judgment last year, come into force before Parliament rises.

Let me turn to one of the most important new safeguards in the acquisition code: that of access to journalistic material. As right hon. and hon. Members will know, the Interception of Communications Commissioner recently conducted an inquiry into police acquisition of journalists’ communications data. The measures in the revised code are intended to give effect to his recommendations, which were accepted straight away by the Government.

The acquisition code that we are debating stipulates that, in seeking to acquire communications data to identify or determine the source of journalistic information, law enforcement must use production orders under the Police and Criminal Evidence Act 1984 or its equivalents in Scotland and Northern Ireland. We are doing this because production orders require judicial approval. This will help to protect the freedoms that journalists enjoy in the UK.

Whenever law enforcement is seeking the communications data of a journalist to determine sources—this includes when police are seeking to confirm or corroborate other evidence of the identity of a journalist’s sources—the decision on the application will be made by a judge under PACE. However, that is only a stopgap until we can make the change through primary legislation in the next Parliament. We have therefore also published a draft clause that sets out how we would seek to enshrine the commissioner’s first recommendation in primary legislation.

[Dr Julian Huppert (Cambridge) (LD)]

rose—

[Keith Vaz (Leicester East) (Lab)]

rose—

[James Brokenshire]

I give way to my hon. Friend the Member for Cambridge (Dr Huppert).

[Dr Huppert]

I thank the Minister for giving way after choosing between the Chairman of the Home Affairs Committee and me.

I welcome the progress that has been made, because I think that it will help to protect journalists. The amendment that I tabled a couple of weeks ago referred to the protection of other communications, such as medical and legal information. Will the Minister say a little about why he is not seeking to protect such information in the same way? Would he at least be open to such a suggestion if he were involved in a future Government making the decision?

[James Brokenshire]

Our action reflected the recommendations of the commissioner himself. They were our lead and our guide. My hon. Friend will note, however, that the code of practice contains additional protections covering the consideration and assessment that must be undertaken by those who seek to make a request for communications data in respect of certain protected groups. An enhanced status has been conferred, in a number of ways.

Resettlement of Vulnerable Syrian Refugees

Debate between James Brokenshire and Julian Huppert

Wednesday 10th December 2014 Commons Chamber

[James Brokenshire]

I note that the hon. Gentleman highlights one individual country within the EU, but each country provides a balance of assistance, whether by accepting people through various schemes or by providing monetary assistance. Each country does so in its own appropriate way. We have said that we will provide support under the vulnerable persons relocation scheme to several hundred of those most in need of assistance, and we are providing quarterly updates on that work. The scheme is therefore transparent and clear, and we are obviously continuing our discussions with local authorities and others to see what further assistance they can provide. I will seek to take that further forward following this session.

[Dr Julian Huppert (Cambridge) (LD)]

The Minister is right to be proud of the aid that Britain is giving in the region, and to give asylum to Syrian refugees who can make it over here. However, as he knows from our exchanges at the Home Affairs Committee, I believe that the efforts to tackle the problems of the most vulnerable refugees who cannot easily get here are simply tokenistic and fall far short of what Members of all parties agreed when the system was set up. It is far less than other countries are doing. Will the Minister reflect on that? I know that he and the Home Secretary were careful not to give any quotas or numbers, but will he at least try to edge the numbers upwards to deliver what this country would like to see and to help people in need?

[James Brokenshire]

My hon. Friend says that the vulnerable persons relocation scheme is in some way not meeting what he sees as the intent behind it, but when the scheme was launched we were clear that it would assist several hundred vulnerable Syrians over the course of three years, and it is doing that and remains absolutely on course to achieve it. Again, I highlight the fact that we are providing assistance to some of the most vulnerable people through our direct aid assistance to individual countries. That aid contribution and the vulnerable persons relocation scheme mean that this country can be proud of what it is doing.

Oral Answers to Questions

Debate between James Brokenshire and Julian Huppert

Monday 17th November 2014 Commons Chamber

[James Brokenshire]

The short answer to the hon. Gentleman’s question is no, we will not, because students continue to use public services. If we look at the Office for National Statistics data for the 12 months to September 2013, we see that 50,000 non-EU students left, whereas 124,000 entered the country, which suggests that students have an impact on net migration.

I say to the hon. Gentleman and the sector generally that there is no cap on the number of legitimate students who can come to study within the UK. Indeed, we have seen significant increases from a number of countries, including China, Brazil and Malaysia. The UK very much remains open to business for students.

[Dr Julian Huppert (Cambridge) (LD)]

The Minister spoke at the Home Affairs Committee seminar on international students, but at the sessions in which he did not speak, there was heavy criticism of his policies. Indeed, the director general of the Institute of Directors, Simon Walker, said:

“When some politician in the House of Commons thinks it would be wonderful to say something [detrimental] about international students, or some clever minister thinks of sending out a van to hound immigrants, they don’t think what it would look like in international papers.”

Will the Minister listen to the voices of the Institute of Directors, universities and the business sector, and look again at such policies?

[James Brokenshire]

The hon. Gentleman will no doubt have heard from reports of that particular session in the conference hosted by the Home Affairs Committee that I made it very clear that we approach this issue in a measured fashion. The number of visa applications for our universities has gone up 5% this year, with an 8% increase for Russell Group universities. I very clearly say to the sector that trying to talk down the offer we have is not in the best interests of the sector or of our country. I certainly look forward to continuing to work with the sector to ensure that we attract students to our world-class institutions.

Electronic Communications

Debate between James Brokenshire and Julian Huppert

Tuesday 22nd July 2014 Commons Chamber

[The Minister for Security and Immigration (James Brokenshire)]

I beg to move,

That the draft Data Retention Regulations 2014, which were laid before this House on 21 July, be approved.

The Data Retention and Investigatory Powers Act 2014, which passed into law last week, was a necessary response to a European Court of Justice judgment that called into question the legal basis on which we require communications service providers in the UK to retain communications data. The judgment was handed down in April this year, not August as the explanatory memorandum accompanying the regulations incorrectly states—an administrative error for which I apologise to the House.

Communications data—the who, where, when and how of a communication, but not its content—are crucial for fighting crime, protecting children and combating terrorism. Indeed, Members will have seen the recent reporting on the National Crime Agency’s child abuse investigation, which led to more than 600 arrests and the protection of more than 400 children. The NCA has confirmed that much of the operation would have been impossible without access to communications data. Where an investigation starts with an internet communication, as in online child sexual exploitation cases, for example, communications data will often be the only investigative lead. The loss of such data would have been potentially devastating and would have impacted seriously on the ability of the police, law enforcement agencies and security and intelligence agencies to investigate crime, uncover terrorist links, protect children, solve kidnappings and find vulnerable people in danger. I am therefore extremely grateful for the support shown in both Houses for the passage of the Act. I put on the record my thanks to right hon. and hon. Members—and in particular to the Opposition—for the constructive way in which they engaged in the debates.

However, as was made clear last week, secondary legislation is required to cover the detail of the operation of the data retention regime and to ensure that the appropriate processes and safeguards can be applied to the retention of such data. That approach mirrors the existing position, in which the detailed data retention regime is set out in secondary legislation. That has worked well for a number of years. It is to those regulations that our attention must now turn.

Members will be aware that a provisional draft of the regulations was published before the legislation was introduced. The regulations before the House today are substantially the same as those which have been available for scrutiny and examination. I am grateful to the Joint Committee on Statutory Instruments for considering and reporting on them. I put on record my thanks to the hon. Member for Leeds East (Mr Mudie), the Chairman of that Committee, for arranging an exceptional meeting to consider the regulations.

Before turning to the content of the regulations, let me deal with the discussion that took place during the passage of the Act about the speed at which the legislation was being passed. Without revisiting those debates today, I will briefly explain why we consider it necessary for the regulations to be passed before the summer recess.

To ensure a strong legal basis for continued retention by service providers, we need to get the regulations in place before the House rises. The regulations ensure that the data to be retained are subject to appropriate safeguards, and the communications service providers concerned will welcome the certainty that the regulations bring.

The Act gives the Secretary of State the power to issue a data retention notice to a communications service provider, if he or she considers the retention to be necessary and proportionate. The regulations made under the Data Retention and Investigatory Powers Act 2014 revoke and replace the 2009 data retention regulations. In large part the regulations replicate the obligations placed on providers under the 2009 regulations. In particular, they set out the types of data that can be retained. As was made clear during the debates on the Act, the list goes no further than the existing regulations. Crucially, the regulations set out the nature of the controls that must be placed on the data, both to ensure that they are adequately protected while they are being retained and to ensure that they are appropriately deleted at the end of that period.

The regulations also ensure that service providers are not penalised financially as a result of complying with a notice or the regulations. That is in line with previous practice and is a fair way of ensuring that the data are retained effectively and that there is no distortion of the communications market, given that obligations may be placed selectively. The regulations contain transitional provisions for the continued effectiveness of a notice under the 2009 regulations, until a new notice is given under the new regulations. We will work closely with providers in the coming months as they make the transition to the new regime.

As I highlighted to the House, the regulations contain additional safeguards. They differ from the 2009 regulations only in the context of those additional safeguards. They provide for data to be retained for a maximum of 12 months and allow the notice to specify that different types of data may be retained for shorter periods, where appropriate. If it is not proportionate to retain certain data for a full 12 months, a lower period can be chosen. The 2009 regulations provided for a blanket 12 months, although the directive on which they were based allowed for periods between six and 24 months.

The regulations also provide for a number of issues which must be considered before a retention notice is issued. I wish to assure the House that my right hon. Friend the Home Secretary and I take our responsibilities seriously, scrutinising in detail any case for imposing a data retention notice to ensure that it is necessary and proportionate. It is with equal care and attention that we will approach our obligation to keep such notices under review.

The Home Office has always worked closely with communications service providers prior to serving a data retention notice, and the regulations enshrine this existing best practice in law by requiring the Secretary of State to take reasonable steps to consult the provider affected. As I have previously explained, the regulations will ensure that the data are subject to appropriate safeguards and controls. Those who followed the scrutiny of the draft Communications Data Bill, including some Members in the House this afternoon, will be aware that there was some uncertainty as to the extent to which the Information Commissioner would oversee the integrity and deletion of retained data, as well as their security. The regulations therefore clarify that the Information Commissioner will oversee all elements of the protection and security of the data. We have discussed this with the commissioner and will provide him with the necessary additional resources to carry out this vital role.

Finally, the regulations amend the Regulation of Investigatory Powers Act 2000 to enable the creation of a data retention code of practice. That will allow us to provide further guidance to communications service providers on how to implement their obligations under a mandatory data retention notice and the regulations.

The House may wonder why certain other changes that we agreed to make are not given effect in the regulations. Separately, we will also update the data acquisition code of practice under RIPA to make it clearer that the officer authorising access to the data should be independent of the operation, and to ensure that consideration is given to the level of intrusion where there may be concerns relating to professions that handle privileged information. I know that that has been of concern to hon. Members on both sides of the House.

The House will have the opportunity in due course to review and comment on both draft codes of practice. In addition, we have announced that a number of public authorities will lose their access to communications data under RIPA and we will bring forward secondary legislation in the autumn in this regard. Hon. Members who followed the discussions about the draft Communications Data Bill will be aware that communications service providers are also able to retain communications data on a voluntary basis under a code of practice made under the Anti-terrorism, Crime and Security Act 2001. The regulations apply the same security safeguards and access restrictions to data retained under that code.

As right hon. and hon. Members know, the Data Retention and Investigatory Powers Act will be repealed on 31 December 2016. Any notices made under the Act and the regulations will similarly fall away. The Government have begun the process of a wider review of investigatory powers and it is right that there should be a full and proper debate on the threats, capabilities and, of course, safeguards that govern the use of such powers. I am sure the House will agree that that should include a wider public debate on the issues.

[Dr Julian Huppert (Cambridge) (LD)]

I am sure the Minister will agree that for that public debate and a review to take place, we need good statistics and information. One of the few things that seems to be missing from the previous regulations and the new ones is a section about statistics. Will he confirm that there will be the same or stronger requirements on public communications providers to keep good statistics on such data and how they are used? How will those will be provided to the Government, who will then publish them?

[James Brokenshire]

I am grateful to my hon. Friend for highlighting this aspect. As he knows, in the debates last week we underlined the need for greater transparency and reporting of information about the use of the powers under the Act. I can assure him that we will take that forward. He will be aware, too, of the requirement on the interception of communications commissioner to report on a six-monthly basis—I know that was of concern—to assure the House and the public about the use of the powers under the new Act. Therefore, I expect that providers of information and communications service providers retaining that information would provide data to facilitate transparency and to ensure that the public are informed about the use of the powers under the Act.

As has been made absolutely clear over the past week, this legislation merely preserves the status quo. The Act passed last week and the regulations before the House today do not extend or create any new powers or obligations on communications companies that go beyond those that already exist; they simply ensure that the communications data that have been retained by the communications service providers will continue to be available to ensure that the police, the law enforcement agencies and the security and intelligence agencies have the capabilities they need to protect the public and keep us safe. I commend the regulations to the House.

Data Retention and Investigatory Powers Bill

Debate between James Brokenshire and Julian Huppert

Tuesday 15th July 2014 Commons Chamber

[The Minister for Security and Immigration (James Brokenshire)]

As the House has heard, communications data are information relating to the who, when, where and how of communications, but not to their content. These data are crucial to the work of both law enforcement and the security and intelligence agencies.

As a result of the recent European Court of Justice judgment, we need to ensure that communications companies in the UK continue to retain this key information. The Bill will replace the data retention regime currently set out in the UK’s Data Retention (EC Directive) Regulations 2009, and preserve the status quo in relation to the retention of data, while responding to certain points made in the European Court judgment. Let me make it clear that the Bill will not create any new powers or obligations on communications companies beyond those that already exist.

Clause 1 will create a power for the Secretary of State to give notices to communications service providers to require them to retain relevant communications data. As my right hon. Friend the Home Secretary has already made clear, the Bill does not enable the retention of any data which cannot already be retained by communications service providers under the existing data retention regulations.

[Dr Julian Huppert (Cambridge) (LD)]

Will the Minister make it absolutely clear that there will be no change for data retention by overseas providers and that overseas companies will not be ordered to retain data?

[James Brokenshire]

As I have said, the law will be exactly as it now stands. My hon. Friend will know that there are provisions relating to extraterritoriality, and we will come on to the relevant clause later. He will understand that we have a relationship with communications service providers in the UK about their retention of data and that, in the regime under the Regulation of Investigatory Powers Act 2000, the Security Service, the police and listed bodies can make specific requests for the purposes set out in RIPA.

It is important to stress that those defined purposes are contained in existing law. To emphasise a point I made on Second Reading, the Bill is not about extending the current situation. Although the European Court of Justice commented on the data retention directive, we had already legislated in a number of ways to ensure that issues of proportionality and necessity are considered in framing requests. We have obviously reflected carefully on the judgment; hence some of the provisions, which I am sure we will come on to in Committee.

--- Later in debate ---

[Dr Huppert]

I just want to ensure that I understand the Minister’s answer. Perhaps I did not phrase my question well. Does the clause provide the power to issue a retention notice to an overseas provider in respect of information that is flowing overseas? That would be something new and I would be grateful if he could rule it out. That is not currently the practice and I hope that he will confirm that it will not be the practice.

[James Brokenshire]

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

--- Later in debate ---

[James Brokenshire]

The Regulation of Investigatory Powers Act 2000 allows the Secretary of State to issue interception warrants and allows those warrants to be served on persons who can assist in giving effect to them. Anyone who is providing a public telecommunications service who is served with a warrant is obliged to give effect to it. It has always been the case that that applies to any company that offers services to customers in the United Kingdom, irrespective of where it is based.

The territorial extent of RIPA has perhaps never been as explicit as it should have been. As a result, some overseas companies have started to question whether they are obliged to comply with warrants that are served on them. Our judgment is that that situation has reached a dangerous tipping point, and that it is necessary to put it beyond doubt that RIPA applies equally to public telecommunications services that are located overseas and those that are headquartered in the UK.

The clause makes clear Parliament’s intention that RIPA should have extraterritorial jurisdiction. It does that in three ways. First, it specifies that an interception warrant may be served on a company that is located overseas, and that a company providing telecommunications services to customers within the United Kingdom, but which is located overseas, has a duty to provide assistance when served with that warrant. Secondly, it specifies that a notice that is issued under section 12 of RIPA may be given to a company that is providing telecommunications services to customers within the UK, but that is located outside the UK. Such a notice would require the company to put in place the necessary infrastructure to give effect to interception warrants. Thirdly, it specifies, as has always been the case, that a notice under section 22 of RIPA for the provision of communications data may be served on a company outside the UK.

The clause specifies the means by which the serving of a warrant or the giving of a notice may be effected. It also makes clear the obligation to comply with a warrant or notice, and the means by which that obligation may be enforced.

[Dr Huppert]

Will the Minister make clear what consequences the clause might have for overseas providers? Is there any possibility that a section 12 order could require a foreign company to install surveillance equipment on its network? Does the Minister have the powers to do that?

[James Brokenshire]

I hope that the hon. Gentleman will understand that I cannot comment on surveillance techniques. However, I restate clearly that the Bill and, in particular, clause 4 do nothing more than is already the case in respect of the requirement to serve notices and the ability to issue warrants to overseas providers.

--- Later in debate ---

[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.

[Dr Huppert]

Perhaps my previous question was not clear. A number of companies are concerned about the important issue of how section 12 orders would be interpreted. RIPA currently deals with powers to enable companies to make lawful intercepts. Will the Minister confirm that if a company—a webmail provider, or whoever—can provide legal intercept, he is not claiming powers to require them to put specific equipment on their networks?

[James Brokenshire]

Perhaps I did not explain this clearly to the hon. Gentleman, but we are not intending to add additional powers to compel. I suppose he is trying to elicit whether the measure is a means of getting more data retained outside the UK—he raised that point in the previous debate on this issue, and again I may be misunderstanding him. I reassert that the Bill contains nothing that in any way extends the existing reach of section 12 of RIPA. Other than reasserting the position on extraterritoriality, it does not in essence change section 12 at all. If that does not answer his point, he may wish to write to me on the matter.

The clause provides that where a warrant has been served on a company outside the UK, the law in the country where the firm is located must be taken into account when determining whether it is reasonably practicable for that company to give effect to the warrant. The clause also makes it clear that the court should consider what steps the company has taken or could take to avoid such a conflict arising. It does not extend the powers of law enforcement or security and intelligence agencies. It simply puts beyond doubt the fact that sections 11, 12 and 22 of RIPA apply to telecommunication service providers that are based outside the UK but provide services to customers in the UK.

--- Later in debate ---

[Dr Huppert]

I have two questions and I would be grateful if the Minister provided a written response to them, to ensure we get a clear answer. First, may we have a written confirmation that there would be no power to force foreign companies to install surveillance equipment on their networks if they are able to provide the intercept that is needed? Secondly, will he confirm the impact of subsection (4) and make it clear that, if a foreign company is under an obligation not to provide such data—if it would, in fact, be a criminal offence for them to comply—no such requirement would be made by the Government? That would put people in the invidious position of having to face criminality on one front or the other. If the Minister wrote to me with confirmation on those points, that would be very helpful.

[James Brokenshire]

I will respond briefly to the points made in the debate. On the latter point, I hope that my hon. Friend the Member for Cambridge (Dr Huppert) will have noted the reference I made to companies’ reasonable ability to comply and the consideration that would have to be given in particular to conflict of law issues, but I will see if I need to supplement that in some way.

--- Later in debate ---

[Dr Huppert]

The hon. Gentleman is absolutely right. Unfortunately, the approach taken for, I believe, many decades has been not to tell people. We have always been told, “We can’t tell you what’s being done at the moment, but we need more.” If we were told and there were transparency, the public could make a much more sensible judgment about what was needed.

New clause 3 highlights what I would expect to see as part of new transparency reporting. It contains requirements to ensure that information is available about the offence being investigated, so that we can find out if it is about children applying to the wrong school or speeding offences, as opposed to national security matters, how long the data have been requested, so that we can work out how long they should be kept for—is it usually used after a week or a year?—and what sort of data they are, so that we know whether we are talking about reverse directory look-ups or rather more personal information. I hope the Minister will be able to reassure me that that is his intention.

I should say that both my new clauses were inspired by Big Brother Watch, which I have been working with on this whole Bill and which particularly wanted to make these points clear. New clause 4 deals with the problem that a number of organisations feel they cannot publish their transparency reports and say what they have been asked to do for fear of violating the legislation against tipping off. I understand why there is a concern. The Government do not want companies to say, “The following things we are reporting to the Government, but these things are perfectly safe; we will not tell the Government about them.” We want companies to be able to publish that anonymised information, so I hope the Minister will be able to confirm that companies can safely publish it as part of their transparency reports without fear of being prosecuted.

I look forward to hearing the Minister’s reassurances on both those aspects.

[James Brokenshire]

I thank my hon. Friend the Member for Cambridge (Dr Huppert) for tabling these new clauses to enable a debate about transparency and the information provided in the exercise of powers under the Regulation of Investigatory Powers Act 2000. He will know that the Government—the Prime Minister and the Deputy Prime Minister—announced last week that we intend to introduce annual transparency reports relating to the exercise of powers under RIPA. That report will provide as much detail as possible, but without undermining the effectiveness of the agencies or posing a risk to national security.

The point I would make to my hon. Friend is that if we had individual companies giving details, that might give an indication to those who would do us harm, who might ask themselves, “Well, which ones aren’t doing that and which direction should we go in?” This therefore has to be done with care, given the nature of transparency, but I endorse his point about the need for more information to be provided, so that the public and this House can have confidence in the utilisation of the powers set out in the legislation.

--- Later in debate ---

[Dr Huppert]

The Minister talked about that two-week snapshot from 2012. Is that the most recent survey that looked at the age of the data? Does he agree that it would be really helpful to have more up-to-date information about the age of the data are that used?

[James Brokenshire]

My hon. Friend argues for a different approach. He talks about a limited period and then about the need to safeguard that information following an event. I do not agree with him on that, as that is a separate debate. However, I agree that where we can see accurate data being provided, we seek to surface that as much as possible as part of the approach on transparency.

As the commissioner made clear in his report, the Home Office was working with him to improve the statistics collected by public authorities. He identified a number of further elements in his report, including the total number of applications submitted, the total number of items of data requested, the total items of data broken down by statutory purpose for which they were required and the total items of data broken down by crime type or other purpose for which they were required, which is the point that my hon. Friend has just made.

We are working with public authorities to ensure that most of these statistics are already being collected by them, and are progressing work to agree on the relevant practicalities such as agreed nomenclature that would enable those that had not already been collected to be collected. Transparency is important in ensuring continued public trust in the agencies and police forces that have been granted intrusive powers. However, transparency does have limits. We should not commit to such transparency that would publicise police and other sensitive investigative methodology, because explaining exactly how our investigators do their job will naturally lead to terrorists, criminals and others who wish us harm knowing how to avoid detection. We must also be careful not to weigh down investigators with too much bureaucracy such that they cannot perform the important function of preventing and detecting crimes and keeping us safe.

[James Brokenshire]

In highlighting case studies, my hon. Friend makes an important point. A number of case studies involving serious murders have already been referenced in the debate this evening. Indeed, the shadow Home Secretary highlighted a case in which a young person who was safeguarded was effectively prevented from killing themselves. Such examples highlight the absolute import and value of communications data and the way in which our emergency services, police and others rely on them, not just to solve crime and to protect the public from those very real threats that we understand from a criminal law and a counter-terrorism perspective, but to protect children and vulnerable adults from harm. The ability to identify where someone may be through tracking the communications data can literally be a matter of life and death. My hon. Friend is therefore right to suggest we can draw on case studies to provide greater explanation. In the appalling Soham murders, for example, communications data were instrumental in bringing those responsible to justice. Such cases highlight the significance of the use of the powers.

I recognise the point made by my hon. Friend the Member for Cambridge, but I am unable to accept his new clause tonight. I can make it clear, however, that I do not resist increased transparency; indeed, it is the reason we have agreed to bring forward annual transparency reports. Such a level of detail can be considered in different ways, and in amending the code of practice on the acquisition and disclosure of communications data later this year, we can ensure that the appropriate text is included in statutory guidance, for example. Parliament will have a chance to return to the issue soon in that context. There are perhaps other ways in which we can reflect further on getting the balance right.

My hon. Friend made another point that may in fact relate to section 19 of RIPA, rather than to the section he suggested, concerning the illegality of disclosing the existence of a warrant under that section. To do so would risk exposing the existence of an interception capability and, crucially, the potential lack of such a capability, which would indicate to criminals and terrorists, who may wish to exploit such a gap, which communication services they may be able to use to conduct their illicit activities without detection. I believe that my hon. Friend seeks to ensure that where such a disclosure is made as part of an annual transparency report issued by the major service providers, a defence will be available to them in any subsequent legal proceedings.

The Government believe that, as at present, it is for the interception of communications commissioner to publish the total number of interception warrants. The commissioner has expressed his concern about the nature of the transparency reports, particularly with reference to requests for communications data. In his annual report for 2013, the commissioner is clear that statistics from transparency reports should “be treated with caution” as they may “lead to misleading comparisons”. Indeed, it would not be helpful to the public for there to be numerous sources of information on the number of requests or warrants when there is a lack of clarity and consistency as between each source. We are doing everything that we can, working with the independent commissioner, to improve the transparency of how such powers are used, but the additional provision would not help to give the public greater clarity, so I invite my hon. Friend to withdraw new clause 3.

[Dr Huppert]

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

Clause, by leave, withdrawn.

New Clause 5

Effect and justiciability of this Act

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

Brought up, and read the First time.

[Sir William Cash]

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

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

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

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

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

Data Retention and Investigatory Powers Bill (Business of the House)

Debate between James Brokenshire and Julian Huppert

Tuesday 15th July 2014 Commons Chamber

[James Brokenshire]

My hon. Friend needs to recognise—I am sure he does—the sensitivity and importance of communications data and how they are used for the prosecution of offences, and of interception and how we have reached a tipping point, which is why there is a need for urgent legal certainty and clarification in the light of the European Court judgment. We face two serious and urgent problems relating to both communications data and interception: first, the recent judgment of the European Court of Justice has called into question the legal basis on which we require communications service providers in the UK to retain communications data; and, secondly, the increasingly pressing need to clarify the application of our laws on interception, so that communications service providers that provide services to people in the UK are in no doubt that they are covered by the laws, irrespective of where they are based.

[Dr Julian Huppert (Cambridge) (LD)]

The Home Secretary was rather less than clear at the Home Affairs Committee yesterday, so will the Minister provide clarity? What would happen if instead of passing the Bill now, we passed it in September? Is there a definite risk, and if so, what risk do we definitely face?

[James Brokenshire]

There is a risk in relation to co-operation on the use of the powers; indeed, there may be legal challenge. The House must face up to the prospect that the powers we use—they are constantly used by our law enforcement agencies—are at potential risk, and we are seeking to address that risk through the Bill this afternoon.

That is why the Government have decided that a fast-track process is appropriate. We have not done so lightly; we would not consider the Bill in this way unless we thought that there is a real risk to such capabilities. We believe that the issues have reached a dangerous tipping point, and that we must act now. If we do not enact the Bill before the summer recess, we face the real prospect of a serious degradation in the ability of our law enforcement and intelligence agencies to investigate crime, preserve national security and protect the public. That is why the Bill requires a fast-track approach.

The motion provides for some nine hours of debate on the Bill. If the House approves the motion, we will move directly to the debate on Second Reading, which will take us to no later than 5 pm. The Committee of the whole House will follow until 9 pm, with the debate on Third Reading concluding no later than 10 pm. The motion also provides for programming of the later stages of the Bill in this House on consideration of Lords amendments.

I fully appreciate the restrictions that today’s timetable imposes. However, given the very specific issue that the House is being asked to consider, we are satisfied that the House—and, in due course, the House of Lords—will have sufficient time to scrutinise the Bill properly. I remind right hon. and hon. Members that the Bill does no more than maintain the status quo, and that it contains a termination provision, meaning that it will lapse at the end of 2016. I welcome Opposition Front Benchers’ continued support for expediting the Bill.

Student Visas

Debate between James Brokenshire and Julian Huppert

Tuesday 24th June 2014 Commons Chamber

[James Brokenshire]

I am grateful to the Chair of the Home Affairs Committee for his comments. He is right about the issue of interviewing those who are intending to come to this country to take up student positions through the student visa system. In the past year, we have conducted 100,000 interviews to root out abuse, identify those who do not necessarily have the language skills and provide that extra check. In respect of the continuing providers, we have stepped up announced and unannounced visits to check what services they are providing, and we are considering further what steps may need to be taken in relation to any re-procurement of the services to place safety and security right at the heart of the system.

[Dr Julian Huppert (Cambridge) (LD)]

Abuse is clearly unacceptable, and the Minister is right to be firm on those who cheat their way in, and on those organisations that actively help people to defraud the system. But we must not forget that around the world people are listening to the tenor of the debate here and the rhetoric that is used. Will the Minister make it clear, both now and in the future, that we still welcome bona fide students and that we are still open for business and will not take action against universities unless there is evidence that they are complicit in some of this fraud?

[James Brokenshire]

As I said in my statement, we have not taken this action lightly, and it has been based on visits to the various institutions and a detailed examination of the evidence before us. We seek to attract the brightest and the best, but my hon. Friend should be aware that applications from students sponsored by universities rose by 7% in the year to March 2014 and applications from students going to Russell Group universities by 11%. It is right that we focus on preventing abuse and that we have a rigorous system that seeks to attract genuine students to this country while ensuring that those who should not be here are rooted out.

Immigration Bill

Debate between James Brokenshire and Julian Huppert

Wednesday 7th May 2014 Commons Chamber

[Dr Julian Huppert (Cambridge) (LD)]

Amendment (a) is certainly a helpful move on some, if not all, the concerns, but how will the provision be interpreted? For example, if somebody who is not a British citizen leaves another country and would otherwise have claimed asylum in this one, will that factor be taken into account? Will the Home Secretary be able to take into account the idea that a country may refuse to give citizenship because we had taken away their British citizenship? How will she make it work in practice?

[James Brokenshire]

It may be helpful if I say that the Home Secretary will consider the relevant nationality laws of a person’s country and that person’s circumstances, and she will make a decision based on whether, under those laws, the person is able to acquire another nationality. The test is whether there is a route under the law, but she will have regard to other considerations—for example, about practical or logistical arrangements. Those considerations will obviously vary from case to case, but she will consider them in forming a view. We have reflected that in the concept of the reasonable grounds. The Home Secretary will need to be satisfied about those reasonable grounds in determining whether the proposed power can be utilised.

--- Later in debate ---

[James Brokenshire]

That is largely in the hands of the individual. When the power is exercised, it will be open to the individual to seek the citizenship of the other country. We are unable to compel them to act in that way. That goes to the heart of the problem that we have identified. It is open to the individual to seek the citizenship of the other country, so it depends on what action they take.

[Dr Huppert]

The Minister is being very generous; I am sure that there will be questions on later sections of his speech as well. It is possible for the Home Secretary to have reasonable grounds to believe something, but for it not to be the case. What will happen if somebody in the UK goes through the process, the Home Secretary believes that they are able to get citizenship from another country and they make a bona fide application for that citizenship, but it is turned down?

[James Brokenshire]

In those circumstances, the Home Secretary would have exercised her power to deprive, so the case does not relate to the specific power under discussion. Obviously, we are able to deprive somebody of citizenship, whether they are in the UK or outside the UK, under the existing powers. That is an important mechanism for maintaining national security and ensuring that the actions of an individual who may be involved in terrorism are addressed by restricting their ability to become involved in terrorism-related activity and by preventing travel that might be a key component of terrorism-related activity. That underlines the importance of deprivation as a means of addressing the very small cohort of individuals who would seek to do us harm.

--- Later in debate ---

[James Brokenshire]

The administrative review process is already effective in identifying and correcting caseworking errors. From April to December 2013, 93% of these administrative reviews were completed within 28 days, and 21% of the administrative reviews requested resulted in the original decision being overturned. This shows that the review process can provide an effective way of correcting errors, and it does so in a speedy and efficient manner, so that periods of uncertainty are addressed. I do not think it does anyone any good to have long and protracted periods of uncertainty. Indeed, we are in the perverse position of having 17 rights of appeal, which are being reduced to four, to ensure that matters are dealt with effectively and appropriately, supplementing the administrative review process outlined in the Bill.

The Bill also requires landlords to check the immigration status of their tenants. That is dealt with in Lords amendments 12 to 15. The scheme includes statutory codes of practice giving the technical detail of how it operates. Lords amendments 12 to 15 address concerns of the Delegated Powers and Regulatory Reform Committee to ensure that those codes have parliamentary oversight.

Lords amendments 25 to 28 deal with student accommodation. The Bill already excluded some student halls of residence from the proposed landlord checking requirement. We concluded that there was scope to go further and broaden the exemption for student accommodation. Educational institutions already have a duty to check the immigration status of their international students, and we do not want there to be double-checking of these persons. The changes therefore strike a sensible balance and minimise regulatory burdens on higher education institutions.

Lords Amendments 17, 35 and 36, which were proposed by Lord Avebury in the other place, correct an historical anomaly relating to the treatment of illegitimate children. Nationality law is complex, and anomalies arise, particularly as aspects of family life have changed since the time of the British Nationality Act 1981. In 2006, amendments to the 1981 Act enabled illegitimate children to inherit nationality from a British father in the same way as a legitimate child. Those amendments were not made retrospective. To have done so could have itself caused problems for individuals who were now adult and had made a life for themselves in a different nationality. These amendments enable illegitimate children born to British fathers before 2006 to register as British if they choose to do so, correcting a historical anomaly by providing a route to citizenship for those who want to take it.

[Dr Huppert]

I thank the Minister for the Government’s support for these amendments, which I tried to put in the Bill but encountered some technical difficulties. Will he join me in paying tribute to those who campaigned for many years to get this injustice changed? People such as Tabitha Sprague, Antonia Fraser Fujinaga and Maureen Box tried very hard, and the many thousands affected by this will be delighted that the Government are now fixing it.

[James Brokenshire]

I recognise those who have made the case for this change for some considerable time, and I am pleased that the Government have been able to support these amendments in the other place. I hope that this House will be equally able to support them here. It is important to recognise that they have addressed an historical anomaly and now allow that opportunity to the individuals affected of a route to citizenship that was not available to them before.

Asylum Seekers (Support)

Debate between James Brokenshire and Julian Huppert

Thursday 10th April 2014 Commons Chamber

[James Brokenshire]

Thank you, Mr Speaker. I say to the right hon. Gentleman that we do not think the value of cash and non-cash support is ungenerous when taken as a whole. He talks about the position of children and families. A family of four on section 95 support would receive £178.44 per week to spend on essential needs, with their accommodation, utility bills, council tax, household equipment, health care and schooling provided. In that context, we believe the support given is appropriate.

The right hon. Gentleman asked me a number of detailed questions. On the support provided under section 95, accommodation is provided to 22,372 people and the cash-only payments are provided to about 2,688 people. He sought to press me on whether we would seek to appeal this judgment. The judgment was handed down yesterday, it is lengthy and detailed, and it is right that the Home Office should reflect carefully on it to determine whether or not an appeal is appropriate.

The judgment does not seek to challenge the current levels of support provided; it simply seeks to comment on the detail of the review undertaken last year. I maintain that that review was properly assessed and took into consideration relevant details and matters for an assessment of the level of support. It concluded that the support should be frozen at its current level. The right hon. Gentleman gave a churlish characterisation of the steps that the Government take in their support on asylum. We work to uphold this country’s proud tradition in ensuring that those fleeing persecution can receive support and humanitarian assistance in this country. That is long standing, and we should welcome and cherish it. His comments were entirely ill-judged.

[Dr Julian Huppert (Cambridge) (LD)]

The level is clearly too low—it is about half that of income support—and of course we are talking about people the Minister will not allow to work for themselves. Is not the big problem simply that the Government are too slow to make decisions? Some 36% of asylum seekers wait more than six months for an initial decision—surely that should be speeded up, which would save the Government a lot of money in supporting them.

[James Brokenshire]

I am grateful to my hon. Friend for his comments on the process on asylum claims. It is important to recognise that there has been a growth in the number of people seeking asylum in this country—the increase has been about 8%, although that is not as big as has been seen in some other European countries because of continuing crises in various parts of the world. Some decisions do take too long, but the Government are addressing the problem: most decisions are dealt with quickly. In 2012-13, 78% of decisions were made within six months. I agree that decisions should be taken more quickly. Our visa and immigration command is looking at this work carefully and is putting more caseworkers in place to support that activity, which is important.

My hon. Friend makes a connection in respect of the rate of support and Department for Work and Pensions levels, but asylum support is provided for different purposes. It is provided to meet essential living needs only and is temporary in nature. I highlight the fact that there are other services—accommodation and utilities—that are provided free which other benefits would seek to take into account.

Yarl’s Wood Immigration Centre (Detainee Death)

Debate between James Brokenshire and Julian Huppert

Monday 31st March 2014 Commons Chamber

[James Brokenshire]

I can only say that the centre director, to whom I have spoken, has said that additional resources were deployed and that additional support has been given to those in detention. I am sure that all the facts of the case will be pursued and investigated, and that will certainly cover the manner in which the incident was handled after the news broke. The centre director has told me that, recognising the distress caused by this tragic news, reassurance was given to those in detention and that further ongoing support is being provided.

[Dr Julian Huppert (Cambridge) (LD)]

I add my support to the condolences and the plea for common sense in the case of Yashika. There is no doubt that Yarl’s Wood has improved, not least with the ending of child detention, which was simply inhumane—I am glad we have stopped it. However, this country continues to be unique in routinely detaining migrants without any time limit, at huge expense—according to one estimate, it is £75 million. Will the Minister look at alternative, community-based solutions such as in Sweden, which gets a higher returns rate, costs less and is more humane?

[James Brokenshire]

We always look at ways in which detention is minimised. However, in a system in which we seek to remove, detention can and should be a means of managing that process. Certainly, we continue to monitor the situation carefully. I hear the point the hon. Gentleman makes, but there are no easy solutions. Sadly, we need to detain in some circumstances to ensure that our removals process operates effectively.

Oral Answers to Questions

Debate between James Brokenshire and Julian Huppert

Monday 10th March 2014 Commons Chamber

[James Brokenshire]

My hon. Friend makes an important point on the impact of online radicalisation. The counter terrorism internet referral unit is removing more illegal terrorist content than ever before—since 2010, it has removed more than 26,000 pieces of illegal terrorist material online—but there is more work to do. We continue to work with the industry to ensure that, where we can prevent extremist material from getting into people’s homes, that is precisely what we will do.

[Dr Julian Huppert (Cambridge) (LD)]

Has the Minister seen the evidence which shows that counter-speech is one of the most effective ways of driving people away from information online? Will he put more effort into supporting it, so that we can divert people from extremism?

[James Brokenshire]

As the hon. Gentleman says, it is important to ensure that different perspectives and points of view are articulated online. I continue to have discussions with internet service companies about how we can best help them with the good work that many are doing in helping community organisations to provide that counter-narrative.

Intelligence and Security Services

Debate between James Brokenshire and Julian Huppert

Thursday 31st October 2013 Westminster Hall

[James Brokenshire]

I say to the hon. Gentleman that publicly discussing sensitive techniques and sensitive tactics of our intelligence agencies is simply not appropriate in terms of safeguarding their work. However, I can also say to him very clearly that arrangements are in place to ensure that GCHQ neither obtains nor discloses any material except so far as necessary in pursuit of its statutory functions, as defined in the Intelligence Services Act 1994, which he will be very well aware of.

As far as interception activity by GCHQ is concerned, GCHQ operates at all times in accordance with RIPA. That is not just a statement; GCHQ’s activity is overseen by the commissioners, who analyse its work in detail. They also analyse some of the codes of practice that the agencies have in place to ensure their adherence to RIPA.

Such levels of assurance are in place within our oversight regime, which I believe is very effective because our intelligence agencies’ activity is overseen by a greater variety of bodies than many other areas of Government business. At the parliamentary level, the ISC examines the policy, administration, past operations and expenditure of the intelligence agencies and parts of the wider Government intelligence community. Indeed, the ISC’s position has been strengthened by the Justice and Security Act 2013, which has only been passed into law through this House very recently.

[Dr Huppert]

The Minister makes the extremely good point that it is “past operations” that can be looked at, and there are constraints on what the ISC can look at; it does not have a completely free rein on operational matters. What happens if an operation lasts for many, many years? At what stage is there any sort of scrutiny of that?

Proposed Europol Regulation

Debate between James Brokenshire and Julian Huppert

Monday 15th July 2013 Commons Chamber

[James Brokenshire]

I hope to assure the right hon. Gentleman that we will be there, influencing and seeking to negotiate the measure. We may not be opting in at the outset, but that should not in any way, shape or form be taken as the UK Government’s not wishing to seek to influence the measure and create the changes that we believe are necessary for us to consider a subsequent opt-in, post adoption.

The right hon. Gentleman will want to congratulate Rob Wainwright, whom he spoke to on his recent visit, on the important job that he is doing to make Europol an effective, well-managed and widely respected organisation in the fight against international crime.

We can point to other examples. Operation Golf, which has been cited several times previously in this House, was a joint UK-Romania investigation team targeting a specific Romanian organised crime network. Offences associated with the network included human trafficking, money laundering, benefit fraud, perverting the course of justice, theft, and handling stolen goods. Europol provided analytical support and facilitated real-time checks on its systems, and 126 individuals were arrested in the UK. Europol’s help in Operation Seagrape led directly to the identification of bank accounts used by a people-smuggling gang based near Dunkirk. French, Belgian and British agencies worked jointly to target a specific organised crime group, and 36 arrests were made. It is for those reasons that the Government believe that it is in the national interest to seek to rejoin the current arrangements for Europol agreed back in 2009 as part of the 2014 decision. That was made clear in our discussions in the previous debate.

However, that is not the matter before us now. Instead, we need to decide whether to opt into the new regulation, which sets down new rules and powers for Europol and, we believe, would change its relationship with member states in some quite troubling ways. Our first concern is with the proposals on data exchange. The Commission wants member states to share more data with Europol. That is a good idea in principle; after all, Europol can only be as effective as the information it holds. However, a strong legal obligation to supply it with data, as proposed in the draft regulation, is a different matter. It would undermine member states’ control over their own law enforcement intelligence, which we regard as absolutely fundamental.

Even more worrying is the fact that the draft regulation does not exempt member states from providing information even if it could damage national security, or endanger ongoing operations or an individual’s safety. These protections are explicit in the existing instrument governing Europol but absent from the new proposal. That is a significant change. The proposal also strengthens Europol’s power to request investigations. It can already do this to some extent, but the new proposal creates a presumption that member states will comply with a request. It also strengthens their duty to give reasons if they decide not to do so. That is particularly worrying because any reasons could be subject to challenge before the European Court of Justice.

The European Scrutiny Committee has asked whether article 276 of the treaty on the functioning of the European Union would protect us from having a refusal challenged in the Court. We are not convinced that it would. Article 276 prevents the Court from reviewing

“the validity or proportionality of operations carried out by the police or other law enforcement services”.

It is highly debatable whether a decision to refuse to open an investigation would constitute

“operations carried out by the police”

because, by definition, no operation would have been carried out. We therefore do not think that article 276 provides enough protection against the Court’s involvement. This creates a real risk of the European Court being able to second-guess our policing priorities. That would simply be unacceptable. Policing is a core function of a sovereign state and it must remain a member state responsibility.

[Dr Julian Huppert (Cambridge) (LD)]

The Minister raises two concerns that I share to some extent. Presumably other member states have also had these concerns. What conversations has he had with them about whether other countries will be joining us to try to get this changed?

[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.

Justice and Security Bill [Lords]

Debate between James Brokenshire and Julian Huppert

Monday 4th March 2013 Commons Chamber

[James Brokenshire]

Our latest estimate in October was that about 20 cases would fall within the scope of these proceedings, and the regulatory impact assessment indicates up to 15 cases annually. The point is to ensure that there is annual reporting of the forthcoming CMP applications and judgments so that Parliament is regularly updated. We will get a better sense of the situation on an annual basis than if we went for quarterly reporting. That would be too short a period given the nature of litigation and the length of time that these cases are likely to take to go through the courts.

Let me deal with the Opposition new clauses tabled by the right hon. Member for Tooting (Sadiq Khan) and the hon. Member for Hammersmith (Mr Slaughter).

[Dr Huppert]

rose—

[James Brokenshire]

Before I do so, I will of course give way to my hon. Friend. We debated this issue in Committee, and I hope that he will reflect on the changes that the Government are making in the light of a number of representations that he made there.

[Dr Huppert]

I thank the Minister for tabling the two amendments that reflect what we discussed in Committee, where he a made commitment that he has followed through on. I have a question about new clause 6. He spoke about a five-yearly review, but that will be after only one period of five years. If that review were to say that further studies would be needed and that the system was still taking time to bed in, would there be the prospect of having further five-yearly reviews as the process continued?

[James Brokenshire]

A five-yearly review with, in essence, each Parliament having the opportunity to examine the operation of CMPs is appropriate. As my hon. Friend will know from our previous debates on, for example, the Terrorism Prevention and Investigation Measures Act, my view has been that that time period or cycle gives sufficient time to enable a proper consideration of the operation of the process. The right period is five years—in essence, once a Parliament so that each Parliament can consider what may or may not be appropriate at that point.

New clause 4 provides that the new CMP provisions would expire only a year after Royal Assent unless a statutory instrument extending the provisions for a further year was laid before Parliament and approved by resolution of each House. The Government believe that the new clause would largely negate the benefit of the provisions in part 2 and that it is disproportionate. The negative impact of what would amount in the first year to a sunset clause could be very serious. As I have said, we know that litigation can be lengthy, lasting a number of months and usually more than a year, while document-heavy cases can last for several years. Creating the possibility that CMPs would cease to be available halfway through the progression of a case where the judge had already decided that a CMP was in the interests of the fair and effective administration of justice in the proceedings would, in our view, undermine the judge’s discretion.

I think that the House is in basic agreement that CMPs should be available as a tool to the judge and that the judge should have discretion on whether to use one or not. In exercising that discretion, the judge will consider whether or not he agrees with the Secretary of State’s assessment of damage to national security and how the case should be fairly run. Even once a judge has decided that a CMP should form part of the procedures in the case, each piece of material will be assessed to decide whether it should go into the CMP, be withheld entirely or be redacted, summarised or disclosed. The judge can also decide at any point to revoke a CMP and, indeed, must consider doing so after the disclosure exercise if he feels it is no longer in the interests of the fair and effective administration of justice in the case. Parliament has already decided to provide four CMPs in at least 14 settings, so we do not believe that we are introducing an entirely new concept.

I understand the origin of the new clause. In essence, it is about the provision for annual renewal of control orders under the Prevention of Terrorism Act 2005, which the Terrorism Prevention and Investigation Measures Act repealed and replaced. The 2005 Act was passed under a greatly accelerated parliamentary timetable, with only limited opportunity for debate. By contrast, the Green Paper provided a full consultation and it is fair to say that the Bill has been through parliamentary scrutiny in the other place and this House. It is also worth underlining that the Bill’s provisions relate to the procedures of the court, rather than the exercise of controls by the Executive. I note that in the preceding debate the right hon. Member for Tooting said that we are in a “very different context”.

The circumstances in which CMPs could be used are limited to national security-sensitive cases and for hearings in the High Court, Court of Appeal, Court of Session and Supreme Court. As I have said, the judge has the discretion to determine whether a CMP is appropriate.

This problem is not likely to go away. Claimants should have the continued ability to bring claims against the Government and matters should be scrutinised by the courts, as opposed to a return to the current system, where in some circumstances justice is simply not possible. We will continue to be faced with the unpalatable dilemma of either damaging national security or potentially paying out significant sums of money.

I should also make clear that, although the Opposition’s proposed new clause applies to clauses 6 to 12, it would also affect the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. Such proceedings are deemed to be section 6 proceedings because the case needs to be heard in CMP in order to ensure that its outcome is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned. Therefore, the effect of the proposed new clauses would be also to disrupt the Norwich Pharmacal clauses, which are intended to bring clarity and reassurance to intelligence-sharing partners.

International partners have expressed concerns about the Government’s ability to defend themselves and protect national security in cases where claimants make allegations against the state and its defence rests on national security material. We risk undermining the confidence of partners who share such information with us if they feel that we do not have in place secure processes to protect their material while defending Government actions.

Oral Answers to Questions

Debate between James Brokenshire and Julian Huppert

Monday 9th July 2012 Commons Chamber

[James Brokenshire]

It is worth underlining that communications data are an essential tool in solving and prosecuting crime. It is important that that is not eroded by changing technologies, which is why we need the flexibility to respond to change. We are working closely with the Joint Committee. We are absolutely committed to the pre-legislative scrutiny and to ensuring that the Committee can conduct robust scrutiny of the Bill.

[Dr Julian Huppert (Cambridge) (LD)]

The Minister said that he was working with the Joint Committee on which I serve. He will be aware that the Joint Committee has not been given sight of the order. Will he promise that we will have a chance to see it while we are carrying out the pre-legislative scrutiny?

[James Brokenshire]

As my hon. Friend will know, scrutiny of the draft legislation is only just starting. I understand that the first sitting of the Joint Committee is due to take place this week. Officials from the Department will consider this matter and give evidence to the Committee. I will commit to keeping the issue under review as the legislative process develops, because we recognise the need to ensure that the Bill and the scrutiny that we will respond to are effective. We need to recognise that this is an important matter in ensuring that crimes continue to be prosecuted.

Terrorism Prevention and Investigation Measures Bill

Debate between James Brokenshire and Julian Huppert

Monday 5th September 2011 Commons Chamber

[James Brokenshire]

As the right hon. Gentleman will know, the foreword to Lord Macdonald’s report said that he was invited

“to provide independent oversight of the Review”.

That is the role that he conducted. He was asked to

“ensure that it is properly conducted, that all the relevant options have been considered and the recommendations are balanced.”

That was the role he was required to carry out in the counter-terrorism review, which, obviously, led to the preparation of this Bill.

[Dr Julian Huppert (Cambridge) (LD)]

rose—

[James Brokenshire]

I will give way one further time and then I will make some progress.

[Dr Huppert]

I am not comfortable with the draft Bill, but will the Minister accept my congratulations on moving the Government forward from the position set out in comments made by his former colleague, Baroness Neville-Jones? She said that this emergency power would be discussed only with the Opposition and would not be scrutinised by Parliament, so will he accept my congratulations on moving to a much more democratic process?

[James Brokenshire]

We have made it clear that the draft Bill will be subject to review and scrutiny by a Joint Committee of the House, and we believe that to be the right way forward.

Let me return to the new clauses in this group. We have carefully considered the various debates in Committee on the length and duration of the Bill. An amendment was tabled that would have introduced an annual renewal of the powers, equivalent to that currently contained in the Prevention of Terrorism Act 2005 in relation to control orders. An amendment with the same effect is before us today as new clause 7. Members of the Committee will recall that we had a helpful debate and that I made a commitment to consider the matter further and return to it. I thank the hon. Member for Cambridge (Dr Huppert) and other members of the Committee for the manner in which that discussion was held and for the points made. In line with that commitment, I reflected carefully on those points, noted the feelings and introduced new clauses 3 and 4. They specify that the operative powers under the Bill will expire after five years, unless they are renewed by the Secretary of State, by order, subject to the affirmative resolution procedure.

There would also be an order-making power to repeal the powers or to revive them when they had been allowed to expire without their having been renewed. We consider that that approach strikes the right balance. It ensures that there will be a statutory requirement regularly to review the need for the legislation and each new Parliament will have the opportunity to debate it in the context of the situation at the time and to take its own view. We do not believe, however, that such a review is necessary annually.

The requirement for a review every five years, rather than every single year, as with control orders, seems to us to strike the right balance. It will avoid what the right hon. Member for Wythenshawe and Sale East (Paul Goggins) referred to on Second Reading as

“the constant arguing and bickering on this issue year after year when we should be seeking consensus in the face of the terrible threats that terrorists bring”.—[Official Report, 7 June 2011; Vol. 529, c. 84-85.]

The Bill will be subject to full parliamentary scrutiny, according to the usual timetable, which will allow such a settled position to be reached. That is in contrast to the control orders legislation that it replaces, which was pushed through with little opportunity for debate, making annual renewal an appropriate safeguard—but one that we do not believe is necessary for this Bill.

Renewal every five years therefore provides an appropriately balanced approach. It reflects not only the seriousness with which we take these powers and the need to build in effective safeguards to ensure that they do not remain in force longer than necessary but the competence of this House and the other place to apply intense scrutiny to legislation and to arrive at a position that will not need to be reviewed annually. It also recognises the sustained nature of the threat and the fact that, sadly, these measures are likely to continue to be necessary for the foreseeable future.

[Dr Huppert]

I thank the Minister for giving way and for accepting the idea I floated in Committee. Will he give me some reassurance that if in five years’ time he and his party are part of the Government they will approach the question in the spirit of carrying out a full review, as this Government did? That would enable detailed analysis and preparation before any further votes were taken.

[James Brokenshire]

As the hon. Gentleman will be aware, one Parliament cannot bind another. It would not be appropriate for me to suggest or require that a future Government act in a particular way when addressing such points. It would be reasonable and appropriate, however, to consider these matters carefully and in a measured and appropriate way, examining the security issues at that point in time in the same way as this Government sought to do in our counter-terrorism review, which led to the creation of this Bill. We consider that a five-year renewal period, allowing each Parliament the opportunity to take a view on this important issue, strikes the right balance.

--- Later in debate ---

[James Brokenshire]

This group of amendments relates to the enhanced TPIM provisions and the circumstances in which measures additional to those contained in the Bill might need to be imposed. The Government and Opposition are taking different approaches.

The Government have made it clear that we believe that in future there might be exceptional circumstances in which it is necessary to introduce additional and more restrictive measures to those contained in the Bill. I emphasise that we hope never to need them, but, in the event of a very serious terrorist risk that cannot be managed by any other means, it would be irresponsible of the Government not to act to protect the public appropriately.

[Dr Huppert]

Will the Minister make it clear that he and the Government would not consider the Olympics, in and of themselves, to be such an emergency risk? There might be circumstances that would become such a risk, but will he confirm that the simple fact we are hosting them would not be sufficient to trigger the new legislation?

[James Brokenshire]

I am grateful to my hon. Friend for highlighting that point. The security arrangements for the Olympics are being planned on the basis that the additional powers envisaged under the enhanced TPIM Bill will not be needed. This is about considering exceptional circumstances and exceptional risk, which is why we have sought to take the approach that we have. In exceptional circumstances we will, where possible, bring forward emergency legislation to introduce such powers. That is why we have drafted and published in draft the Enhanced Terrorism Prevention and Investigation Measures Bill, which will now be subject to pre-legislative scrutiny. That will give Parliament the opportunity to examine its terms closely. In some ways, this underlines the point made by the hon. Member for Islington North (Jeremy Corbyn) in the previous debate about seeking to do this in a considered and measured way rather than in a febrile atmosphere—the draft Bill has been introduced to facilitate that.

If the enhanced TPIM Bill is introduced while Parliament is in recess, Parliament can be recalled to debate it, but there is a small gap in our ability to introduce this emergency legislation in periods where Parliament is dissolved and where a new Parliament has been appointed but the first Queen’s Speech has not been delivered. This gap was identified during pre-legislative scrutiny of the draft emergency Bills to extend periods of pre-charge detention for terrorist suspects to 28 days.

Government new clauses 5 and 6 take the same approach to addressing that gap as we are proposing to take with pre-charge detention. They introduce a power to the standard TPIM Bill that would allow the Secretary of State—where necessary by reason of urgency—to bring the enhanced TPIM regime into force by making a temporary enhanced TPIM order. This power would be exercisable only in the periods I have mentioned: while Parliament is dissolved and in the period between the appointment of a new Parliament and the first Queen’s Speech. A temporary enhanced TPIM order would make provision directly equivalent to that in the enhanced Bill. I shall not delay the House by reciting the detail of that Bill’s provisions; it has been published and is available to all Members to read. It will be subject to rigorous pre-legislative scrutiny, following which it will no doubt be amended and improved.

--- Later in debate ---

[James Brokenshire]

I shall not second-guess the circumstances in which the draft Bill and those provisions would be required. Clearly, it would be in exceptional circumstances in which we were faced with a serious terrorist risk that could not be managed by any other means. That is the sort of situation we are contemplating, but I am not prepared to second-guess future developments in the threat picture. The right hon. Lady and I disagree on this, but, as I have said quite clearly, we believe that the TPIMs regime in its entirety—the standard TPIMs regime and the supportive resources around it—is sufficient to manage the threats that we face. Only in exceptional circumstances would the enhanced measures be required. That is the conclusion we have reached as part of the counter-terrorism review. I appreciate that she and I differ on that, but that was the conclusion we came to. The counter-terrorism review recognised that enhanced measures might be required in exceptional circumstances, which is why we have taken the view we have.

[Dr Huppert]

Contrary to the right hon. Lady’s point, does the Minister share my pleasure that we will be able to keep the powers of internal exile with judicial oversight off the statute book for as long as we can?

Oral Answers to Questions

Debate between James Brokenshire and Julian Huppert

Monday 27th June 2011 Commons Chamber

[James Brokenshire]

The right hon. Lady needs to look at the statistics, as I have already highlighted. If she looks at the data from 2001-02, when there were 39,000 detections against a database of fewer than 1.4 million, all from convicted people, and compares that with the data from the last year, when over 5 million individuals, including hundreds of thousands of innocent people, were on the database, she will see that the number of detections had fallen to 32,500. Labour Members appear to be very casual with people’s liberties, although they claim they are not. They seem to assume that simply because someone is arrested for a crime, they are guilty. We take a different view. Labour Members are not prepared to look at the facts and the evidence.

[Dr Julian Huppert (Cambridge) (LD)]

14. What estimate she has made of the potential cost to the economy of her planned changes to tier 4 visa requirements.

Prevention and Suppression of Terrorism

Debate between James Brokenshire and Julian Huppert

Wednesday 2nd March 2011 Commons Chamber

[James Brokenshire]

The hon. Gentleman will appreciate that it is not appropriate for me to comment on such sensitive security issues. I can tell him that the review we undertook underlined that the Government’s absolute priority must be to prosecute suspected terrorists in open court. Measures that impose restrictions on suspected terrorists who have not been convicted in open court should be our last resort. As far as possible, given the need to protect the public, any restrictions should support the primary objective of prosecution.

The review concluded that for the foreseeable future, there is likely to continue to be a small number of people who pose a real threat to our security, but who, despite our best efforts, cannot be prosecuted or, in the case of foreign nationals, deported. As at 10 December 2010, eight individuals were subject to control orders. Our reluctant assessment is that there will continue to be a need for a mechanism to protect the public from the threat that such individuals pose. Lord Carlile reached the same conclusion in his most recent and last independent report on control orders. Consequently, he and the other statutory consultees support the proposal to renew the control order powers. I am sure that hon. Members from all parts of the House will join me in thanking Lord Carlile for his work over the past 10 years.

The review also concluded that it is possible to move to a system that will protect the public but be less intrusive and have more clearly and tightly defined restrictions. In particular, the two-year maximum time limit clearly demonstrates that these are targeted, temporary measures. It will be possible to impose a further measure only if there is evidence of new terrorism-related activity after the original measure was imposed. Measures will have to meet the evidential test of reasonable belief that a person is or has been involved in terrorism-related activity. That is higher than the test of reasonable suspicion of such involvement in the control orders regime. The police will be under a strengthened legal duty to inform the Home Secretary about an ongoing review of a person’s conduct with a view to bringing a prosecution. A more flexible overnight residence requirement will replace the current curfew arrangements.

[Dr Julian Huppert (Cambridge) (LD)]

I thank the Minister for giving way; he is being very generous so far and we will see how this goes. Will he clarify how the new residence requirement is different from the existing arrangements? In her comments to the Home Affairs Committee, the Minister for Security, Baroness Neville-Jones, was less than clear on that point.

[James Brokenshire]

I know that this issue was of interest to the Home Affairs Committee. As the Minister for Security made clear in her evidence, the normal overnight residence requirement will be for between eight and 10 hours. She has written to the Committee to set out that as at 10 December 2010, the longest curfew under a control order was for 14 hours, which was in place in two cases. Of the remaining curfews, one was for 13 hours, three were for 12 hours, one for 10 hours and one for eight hours. Therefore, at least six of the eight individuals will be confined to their residence for a shorter period than they are currently. The Minister for Security has made that point clear.

It is worth stressing some of the other relevant issues. Forcible relocation to other parts of the country will be ended. Geographical boundaries will be replaced with a power to impose much more tightly defined exclusions from particular places. There will be no power to exclude someone from, for example, an entire London borough. Individuals will have greater freedom of communication, including access to a mobile phone and a home computer with internet access, subject to certain conditions such as providing passwords. They will have greater freedom to associate—for example, there will be no blanket restrictions on visitors or meetings. Individuals will only be prohibited from associating with people who may facilitate terrorism-related activity. They will be free to work and study, subject again to the restrictions necessary to protect the public. These changes will allow the individual to continue to lead a normal life so far as is possible, subject only to the restrictions necessary to prevent or disrupt involvement in terrorism-related activity.

The more limited restrictions that may be imposed may facilitate further investigation, as well as preventing terrorism-related activities. The new regime will also be accompanied by an increase in funding for the police and the Security Service, to enhance their investigative capabilities. The Government intend to bring forward legislation to that effect shortly. The legislation must be properly prepared and properly scrutinised by the House. In the meantime, we are clear that it would be irresponsible to allow the current regime to lapse in the absence of alternative measures and while the investigative capabilities of the law enforcement and security agencies are being developed.

It is important to underline that control orders remain legally viable and although they are, in our judgment, imperfect, they have had some success in protecting the public. We are satisfied that the current control order powers and the order before us today are proportionate and fully compliant with the European convention on human rights, and that, pending the introduction of their replacement, it is essential that these powers continue to be available in order to protect the public.

Proposed Directive (Information Systems)

Debate between James Brokenshire and Julian Huppert

Thursday 3rd February 2011 Commons Chamber

[James Brokenshire]

The directive builds on the convention and deals with certain additional issues, such as the response that other EU countries provide to requests for information on cyber-related attacks and cybercrimes, so we think that it has important benefits. It is precisely because of those practical benefits that we think it appropriate to opt in at this point and to negotiate on and change the drafting where it requires further work. We believe that, because of the directive’s practical and direct benefits, it is important to be there and do that.

[Dr Julian Huppert (Cambridge) (LD)]

Will the Minister help me on a technical point? I understand that the directive is a repeal-and-replace measure; it repeals a directive to which the UK is party and replaces it with a new version. If the UK had opted out of the directive—I am glad that it has not—would it have still considered itself bound by the original 2005 framework decision? If not, what would the implications have been for UK cyber-security, given that that framework decision provides for police and judicial co-operation on cross-border cyber-threats?

[James Brokenshire]

I am very grateful for the hon. Gentleman’s question, which transcends this directive, which is a Title V measure, as contrasted with the third pillar measures that are subject to the potential block opt-out in 2014. I hesitate to go into the technicalities, but we have clearly opted in to the directive, so it falls within the Title V base rather than the third pillar base. It was a technical question, and I am sorry for that rather technical response.

Oral Answers to Questions

Debate between James Brokenshire and Julian Huppert

Monday 1st November 2010 Commons Chamber

[James Brokenshire]

The hon. Gentleman makes a very important point, and it will be interesting to hear whether the former licensing Minister, the hon. Member for Bradford South (Mr Sutcliffe), who is now on the shadow Front Bench, will be able to explain why that café culture, which was supposed to be created as a result of the previous Government’s reforms, has perhaps not arisen. In reality, we have seen an increase of about 65% in the number of hospital admissions linked to alcohol over the five years to 2008-09, and that is why we think that reforms are required.

[Dr Julian Huppert (Cambridge) (LD)]

In the Minister’s work on the Licensing Act, will he ensure that he looks carefully at the licensing of one-off and annual events, such as Strawberry Fair in my constituency, so that delays in determination, because of late interventions, for example, do not mean that the events have to be cancelled regardless of what is decided?

[James Brokenshire]

I am not familiar with the detail of the individual event to which the hon. Gentleman refers, but we are looking at temporary event notices and how community events are licensed, and if issues continue to prevail in relation to that situation no doubt he will write to me.