EU Nationals: UK Residence

Debate between James Brokenshire and William Cash

Monday 4th July 2016 Commons Chamber

[James Brokenshire]

If anything was ill-judged, I think the right hon. Gentleman’s comments were and the manner in which he approached his contribution this afternoon. I have been clear that there is no concept of bargaining chips or viewing people in that way. I have been clear on the contribution I see EU citizens making to our country, now and in the future, which is why it will be a part of that negotiation as we look towards a positive future for our country outside the EU. It would not be responsible to take a stance now that could have an impact on the 1.2 million British citizens in countries outside the UK. [Interruption.] It is not a choice of one or the other; it is a question of looking at both of them, and getting the best possible outcome for UK citizens in other European countries as well as giving assurance on the rights of European citizens who are here. It is important that we approach the negotiations in that way.

The right hon. Gentleman makes the point about the rise in community tensions, as he did fairly to us last week when the Under-Secretary of State for the Home Department, my hon. Friend the Member for Staffordshire Moorlands (Karen Bradley), made her statement on hate crime. We would have common cause in utterly condemning hate crime—I absolutely condemn it again today—with the further work that will be introduced on tackling hate crime and the further work that the police are doing in our communities at the moment. We celebrate the work of so many European citizens here in our country now, which is why this does need to be part of those discussions and agreements with the European Union, to give that assurance and, yes, to get the best possible outcome for them, as well as for British citizens abroad.

[Sir William Cash (Stone) (Con)]

Will the Minister understand that many of us regard the Home Secretary’s recent remarks as wholly inappropriate? Does he also accept that any EU citizen who currently resides in the UK will continue to do so, as he has suggested, but that once the repeal of the European Communities Act 1972 has taken place, it will be a matter for domestic legislation here at Westminster to decide, in our traditional fair and reasonable manner, on what basis people should remain, having regard to the interests of UK nationals in other member states?

[James Brokenshire]

I underline again that we are an open, welcoming country and recognise the contribution that EU citizens make to our country, our economy and our communities. That is why this must form part of our assessment, our consideration and our negotiations and agreement with our European partners. I stress it in those terms very clearly. I hope my hon. Friend will understand why the matter needs to be viewed in that broader construct in the best interests of our country and to get the best outcome from those discussions.

Dublin System: Asylum

Debate between James Brokenshire and William Cash

Wednesday 4th May 2016 Commons Chamber

[James Brokenshire]

The hon. and learned Gentleman clearly did not hear what the Prime Minister said at Prime Minister’s Question Time just a few moments ago. He said that we are in discussions with Save the Children and the United Nations High Commissioner for Refugees about what further assistance can be provided to those who had already registered in Europe before the EU-Turkey deal came into force. He also mentioned the discussions that we will have with local authorities.

I reject entirely the hon. and learned Gentleman’s claim that the Government have been slow to act on the Dublin regulations. We have sent experts to France and other European countries to support that process, to enable its practical implementation on the ground, and to ensure that it bears fruit and speeds up.

The hon. and learned Gentleman highlighted issues relating to the Dublin regulations. The Government believe that the long-standing principles at the heart of the Dublin system are the right ones, and it would be a major error to tear them up and replace them with something completely different. Dublin may not be operating as it should be, but that does not meant that its principles are fundamentally flawed. That is the approach that this Government will take to further negotiation.

Right hon. and hon. Members will not have seen the proposals in detail, because they have only just been published. It is right, therefore, that we reflect on them in detail and continue our discussions in order to ensure a reformed Dublin system that benefits the UK, while acknowledging the protections we have to maintain the existing Dublin arrangements.

[Sir William Cash (Stone) (Con)]

I congratulate my hon. Friend the Member for St Albans (Mrs Main) not only on securing the urgent question, but on the manner in which she conducted her analysis. She was, of course, completely right. The European Scrutiny Committee is looking at this very matter and we will be talking about it this afternoon. Would the Minister be good enough to give us an assurance that, if we so decide, which I feel we will, that there should be a debate on the Floor of the House, he would encourage that with the Whips? Will he also make sure that the matter is not left hanging around for as long as three months? We need urgent answers to these questions.

[James Brokenshire]

The three-month period is the time the UK has to consider whether to opt into measures at the outset. As my hon. Friend will know, that is one of our protections in our relationship with the EU with regard to justice and home affairs matters. The Commission has published its papers this morning and I am sure that they will be scrutinised in detail by the European Scrutiny Committee. The Government will provide information and support that process in order to ensure that the measure is properly scrutinised by the House. There is no delay on the Government’s part: the three-month period is our safeguard in deciding whether to opt in, and it certainly does not defer scrutiny.

Combating Terrorism

Debate between James Brokenshire and William Cash

Monday 7th March 2016 General Committees

[James Brokenshire]

I underline the fact that the UK is a leader in counter-terrorism. We gain various benefits from our relationship with our European partners as well as from our long-established relationship with other international partners. We are able to work together closely to confront the threat from terrorism that we all face. We deal with the overall level of threats and we disrupt various actions. Arrests and prosecutions continue in respect of those intent on doing us harm. I must reassert that.

I refer the hon. Gentleman to the papers before the Committee in respect of the consideration that the Government have given to this measure. Indeed, the explanatory memorandum that was issued by my right hon. Friend the Security Minister on 17 December sets out very clearly the issues relating to this matter and the relevant considerations. Ultimately, the Government have determined, as they have with the framework decision, that this is a minimum standards directive, and we are satisfied that there are no operational gaps or issues of concern. We have weighed up the issue of national security, the ultimate member state competency, and that will always be a priority. That was one of the elements emphasised in the papers arising from the renegotiation, and that has been reaffirmed.

The papers before the Committee clearly set out the Government’s consideration of the matter. I hope I have clarified the minimum standards, our assessment with operational partners, and the need to create further requirements. We have considered the issue of extraterritorial jurisdiction, which is one of the key questions, and we remain satisfied that the balance we have struck and the conclusions we have reached are that it is not appropriate to extend sections 1 and 2 of the 2006 Act in an extraterritorial way. We considered that issue in our debates on the Serious Crime Act 2015, which amended the 2006 Act to extend jurisdiction in relation to the offences of preparing for terrorism under section 5, and further extended the scope of jurisdiction in relation to training for terrorism under section 6. This was necessary to ensure UK compliance with UN Security Council resolution 2178. It helpfully filled a gap in our ability to prosecute suspected terrorists, particularly those who travel to Syria or other theatres of jihad.

Following consultation with partners, we did not identify an operational gap in relation to section 1 and 2 offences that would necessitate the taking and extending of extraterritorial jurisdiction for those offences. The section 5 offence of engaging in conduct in preparation of terrorism is broad and effective. In practice, it can generally be used to prosecute foreign terrorist fighters.

[Sir William Cash (Stone) (Con)]

First, may I congratulate the Government, which is unusual in matters of this kind, because it is such good news to hear that they are not opting into these arrangements? As Chairman of the European Scrutiny Committee, I totally endorse the remarks made by the hon. Member for Luton North about this debate needing to take place on the Floor of the House, whether it is an opt-in or opt-out decision.

[Sir William Cash]

I ask the Minister if he will accept my congratulations on this matter and explain to me, as Chairman of that Committee, why he thinks this measure should not be considered on the Floor of the House. Lastly, how definitive is the Government’s opt-in decision? Do the Government intend to review their decision once the outcome of the negotiations is known?

[James Brokenshire]

I welcome my hon. Friend’s presence this afternoon. He underlines his own Committee’s scrutiny of and focus on these measures, which I appreciate and welcome. Indeed, I have given evidence to his Committee, and it rightly holds Government to account on these matters.

My hon. Friend asked whether we will somehow reopen consideration of this matter post the EU referendum. It is not the Government’s intention to do so. As I have indicated, we did not opt back into the 2002 framework decision that this directive will replace. Because this directive is minimum standards-related, and because of the issues I have highlighted—for example, member state competency, national security and the role that the directive might give to the Court of Justice of the European Union—it is our clear view as a Government that we should not opt into this measure, whether that is now or in future, post-adoption. I hope that that clarity is helpful to the Chair of the Select Committee and to other right hon. and hon. Members.

The Government take such scrutiny seriously. Where the European Scrutiny Committee recommends that there should be a debate on a particular paper or dossier, we should do so, but there is always a question of parliamentary time and the nature of debates available to us. Therefore, on the opt-in decision, we felt that we could grant and respond positively to the need for a debate. That debate is in this format rather than on the Floor of the House, but that should not in any way limit our consideration of these serious matters. This is an important measure, and in this Committee we are considering the relevant directive and the Government’s decision that we should not opt into the measure. I welcome the scrutiny that this Committee is able to provide.

--- Later in debate ---

[James Brokenshire]

I thank all right hon. and hon. Members who have contributed this afternoon. As we have heard, this comes at a time when the UK faces a serious and continued threat from Islamist extremist violence, which is probably more acute today that it has ever been. Daesh is targeting our way of life, spreading fear and terror, and it wants to exploit the internet, both to radicalise and recruit the vulnerable and to incite and direct extremists to carry out attacks outside Syria and other areas of conflict. Indeed, we face the continuing threat from al-Qaeda and groups linked to it, which seek to challenge and threaten our very way of life.

These are weighty and serious issues, and any Government consider them in that context. Having had the privilege of serving as Security Minister for four years, during which time we saw the growth of this activity, I feel the weight of those responsibilities in my current role on border security and as Immigration Minister, which is why I am disappointed by some of the contributions we have heard this afternoon and by the characterisation of the approach taken by the Government, who take issues of national security absolutely to heart. That is our first and foremost consideration when making decisions on these and other matters.

I want to be absolutely explicit that nothing in this decision impedes practical co-operation with our European partners. Indeed, when I look at what the Government have done to support Europol and strengthen its capabilities in combating internet radicalisation, and the steps we have taken in opting into the second generation Schengen information system to better share information on suspected terrorists, organised criminals and those subject to European arrest warrants, I see how that absolutely has been in the best interests of the UK. That work will continue, which is why close collaboration and co-operation with our European partners and others will absolutely remain a core part of this Government’s activities in seeking to confront and combat those who would seek to harm UK citizens or perpetrate acts of terrorism against them, or indeed any citizens, whether in this county, in Europe or elsewhere around the globe.

There have been some questions about what information can be supplied to this Committee. Let me be clear that we do not comment on operational priorities or the capabilities of our security and intelligence agencies, and for good reason: so that we do not assist those who would seek to conduct acts of terrorism against citizens of this country. Such information, if provided, is likely to be of interest to them, so we provide protection around matters of intelligence. Although various points have been raised about our assessments in relation to these matters, I am afraid that I am not able to go into those operational priorities in Committee. However, I can assure the Committee of the level and extent of analysis that is conducted by our security and intelligence agencies of those who would wish to conduct terrorist acts against UK citizens or against UK interests wherever they may be. I certainly recognise the need to keep those matters under close and careful scrutiny.

I need not remind the Committee of the threat that we and our international partners face from terrorism. We continue to keep our legislation under continuous review to ensure that it is as robust as possible to effectively tackle the threat. We therefore recognise that we have a role to play in sharing our expertise and in supporting our international partners both in the EU and elsewhere. At the operational level, UK law enforcement and intelligence agencies work very closely with international partners to protect the public here and overseas. That includes seeking the support of partners where appropriate in tackling threats to the UK, providing partners with support to tackle threats they face at home and co-operating to tackle threats to the wider international community, such as those posed by Daesh in Syria and Iraq. Day-to-day operational co-operation is vital to modern terrorism investigations and is a routine feature of such investigations, which have an international dimension.

At the structural level, the UK Government and agencies work with international counterparts to build their capacity to tackle terrorism themselves, while promoting the rule of law and respect for human rights. At the level of co-operation through supranational organisations such as the EU or UN, the UK plays a full and active role, and I hope it will continue to do so. We participated fully, along with the other Council of Europe member states, in negotiating the text of the Council of Europe additional protocol to the 2005 convention on the prevention of terrorism, which we exercised our national competence to sign in October 2015. Our legislation is also fully compliant with UN Security Council resolution 2178 on tackling foreign fighters.

I want to highlight why we have determined that this matter should be rejected. Rather than a rejection of the content of the proposed directive or of the principle of international co-operation, at the heart of the Government’s decision not to opt in is our fundamental approach to questions of subsidiarity, EU competence and national sovereignty. We do not agree that an EU minimum standards measure of this kind is necessary for sovereign Parliaments, which best understand what is necessary and appropriate in their own national contexts, to be able to protect their citizens.

Furthermore, we have consistently been clear that it would not be in the national interest to do anything that could bind us to an exercise of EU competence on this matter, that could limit our future ability to act independently in this area of national security, or that could grant the Court of Justice of the European Union jurisdiction over the matters contained in the proposed directive in relation to the UK. We judge that these outcomes would be likely to hinder rather than assist our ability to protect the British public.

Given this position, and given that the UK has developed legislation that is specific to the serious threat that we face and that meets or exceeds the proposed directive in almost all respects, we have concluded that it would not be in the national interest to opt into the proposed directive either now or post-adoption.

[Sir William Cash]

With respect to the difficulty in dealing with terrorists in the context of human rights and the charter of fundamental rights, I am sure that the Minister recognises that there are and have been enormous difficulties in relation to the deportation of terrorists, caused by the fact that the wide range of the charter, for example, can create difficulties in dealing with matters of public security within a domestic framework.

[James Brokenshire]

My hon. Friend tempts me down a broader path in relation to the European convention on human rights and other related matters. As the Minister most closely involved in the direct negotiations on the treaty that led to the deportation of Abu Qatada, I understand very clearly the international legal aspects, but that is perhaps for another day. I emphasise the consideration that we have given to this directive. In our judgment, opting in does not add to our capabilities and does not in any way impede co-operation with our EU partners. We judge it is in the national interest and in the best interests of protecting the security of our citizens.

Question put.

Relocation of Migrants in need of International Protection (Opt-in Decision)

Debate between James Brokenshire and William Cash

Monday 14th December 2015 Commons Chamber

[Sir William Cash]

It is indeed. I always want to encourage the Government to do better, but on this occasion they have done a lot worse. The delay in scheduling opt-in debates is inconsistent with the letter and spirt of the commitments made to Parliament by the Minister for Europe. I would be grateful if the Minister for Immigration would deal with that, because he owes not only the European Scrutiny Committee, but, much more importantly, the House and this country’s voters an apology for the way in which it has been dealt with. I am sure he will give that apology; perhaps he would like to do so now. Is there a chance that he might? Is he listening to what I am saying?

[James Brokenshire]

I am grateful to the Chair of the European Scrutiny Committee for allowing me to intervene on him. As I said when I gave evidence to the Committee, the Government have had to deal with a fast-moving situation, and, as I have already indicated today, we are sorry that it has not been possible to have the debates in the way we would have chosen to have them, but that is a reflection of the exceptional circumstances with which we have been dealing. There have been opportunities for debates and to respond to questions by way of statements, but that is the situation to which we have been seeking to respond.

European Agenda on Migration

Debate between James Brokenshire and William Cash

Monday 14th December 2015 Commons Chamber

[James Brokenshire]

As my hon. Friend will know, we are not part of Schengen, so the operations to deal with internal Schengen arrangements are for those who are party to them. As was discussed in the previous debate, what happens at the external Schengen border is important, which is why we have sought to support Frontex in a number of its activities, given the potential impact on us in the UK.

Looking at the approach off the coast of the European border, it is interesting to note how the subsequent Council decision on an EU military operation in the southern central Mediterranean has in many respects been a positive step in the joint efforts to break the business model of the people smugglers. That has had the UK’s full support. On 7 October, the operation moved into phase 2, the high seas phase, and was renamed Operation Sophia, in which the UK is playing an important role.

The purpose of Operation Sophia is to tackle the human smugglers and traffickers, disrupting their business model, which trades so carelessly in the lives of others. We must not forget, however, that Operation Sophia is only one part of the Government’s support for sea operations in the region. Since May, the UK has saved over 9,000 lives in the Mediterranean.

The last document listed, the proposed Turkey-EU action plan, has been broadly welcomed by political leaders across the EU and was the subject of an EU-Turkey summit on 29 November. The Government share the view that a plan of this kind is needed in order to ease the refugee burden on Turkey, while preventing further uncontrolled migration to the EU. Turkey is a key relationship partner for the EU and is a country with which the UK has had close co-operation for some time. It also has a pivotal role in the migration crisis, given that so many of the migratory flows through Greece and the western Balkans come through Turkey.

[Sir William Cash (Stone) (Con)]

Does my right hon. Friend concede that there could be an element of disingenuousness in the embracing of Turkey in this context, given that so many of the problems that we have seen recently have come through Turkey?

[James Brokenshire]

It is important to look at the action plan to provide an overarching response to the challenges we face. Clearly, that involves Turkey as an active partner, which means working within Turkey and alongside it further afield. It is important to recognise and support Turkey’s efforts in hosting well over 2 million Syrian refugees. It is important to continue to retain that focus, which is why we are providing financial support as part of an overarching package to assist with the efforts taking place in Turkey.

However, I stress the importance of the Prime Minister’s announcement that, as part of the United Kingdom’s responsibilities, we would resettle 20,000 of the most vulnerable Syrian refugees over the next five years. We remain on track to resettle 1,000 before Christmas, building on our previous scheme. However, it is neither feasible nor desirable for us to try to meet the needs of all those who require protection within the European Union, nor is it the right solution for the majority. That is why the Government have placed so much emphasis on supporting protection in refugees’ regions of origin, and we have committed a further £100 million to fund refugee camps on Syria’s border.

As well as focusing on humanitarian assistance, the Government have consistently focused on finding a comprehensive and sustainable solution to the refugee crisis. The Prime Minister has continued to emphasise the need of the EU to deal with the root causes of the crisis, rather than merely responding to its consequences.

In Syria, that means working with the international community to end the brutal conflict there, and to defeat Daesh. The recent development of a Syrian opposition negotiating committee following talks in Riyadh last week is a positive addition to the peace plan that was produced in Vienna last month. It could be an important step towards a solution in Syria, and therefore part of the long-term solution to the migration crisis. In Libya, that means helping to form a Government of national accord which can regain control of the country’s borders and tackle the smuggling gangs. A strong, unified response to Libya, like the one that was demonstrated only yesterday in Rome, is imperative to securing the political agreement that will allow that country to move towards improved security. And, as I have said, in Turkey that means working towards comprehensive border management, ensuring that a humanitarian response is given to those who reach the country while also disrupting the organised criminal networks that seek to profit from the flight of others.

The situation relating to the migration crisis is constantly changing. The Government maintain a watch on all developments, so that we can reshape and refresh our engagement and share our expertise and resources in a targeted way to protect the UK’s national interest, assist our European partners, and ensure that our efforts have the greatest impact on the support that we offer. We remain committed to effective practical co-operation with our European partners in pursuit of this agenda, and that is what the motion underpins.

--- Later in debate ---

[Sir William Cash]

Unfortunately, the Minister was not here when I spent a little time talking about the Schengen aspect of this in a previous debate. I believe that the current proposals, which increase the range of the border issue to external borders and include Schengen, will burst. This is not going to work. There is not the money to pay for it. The failure rate of Frontex is evident. I believe that the arrangement will not work in future, and the fact that we are not a member of Schengen will not alter the pressures of the kind we have witnessed recently that come as a result of people entering the Schengen area and, having acquired a passport and EU citizenship, making their way through the whole of the EU.

I accept that Schengen is not, for the moment at any rate, part of the UK’s bailiwick, but the pressures that are now beginning to grow are increasing the necessity for us to leave the EU, because, from what I have been hearing from other member states, Schengen is becoming a potent force towards a greater degree of emphasis on political union. It is a most remarkable state of affairs. The Minister for Europe was not here earlier, and I see him puzzling over what I am saying, but I say emphatically that the Schengen agreement is not only under review but already being broken by a series of countries. However, there is an enormous desire to make it work even more effectively. As it does so, the pressures for political union within the Schengen area will tend to increase.

Before I turn to the 1951 UN convention and the EU charter of fundamental rights, I want an answer to the question that I put to the Minister for Immigration earlier about how much, if at all, the United Kingdom is liable to contribute to the EU border force. Is it true that we will contribute £150 million?

[James Brokenshire]

indicated dissent.

[Sir William Cash]

It is not true, apparently, but I will be glad to hear the Minister say it.

[James Brokenshire]

Time did not allow me to respond to my hon. Friend’s question in the last debate, but we do not contribute to the core funding of Frontex. The agency is funded through a specific mechanism. He will know that we are not part of the Schengen arrangements, to which Frontex relates. We provide operational support through vessels, expertise and briefing.

[Sir William Cash]

I heard much the same back in the days of the Maastricht treaty, when we were told that we were not going to have creeping federalism. I sincerely believe that what the Minister has just said is what he believes will happen, and I trust him to say exactly what is going on—I will take his word for it—but the pressures are there. That is all I am saying.

[James Brokenshire]

My hon. Friend will no doubt take a great interest in the announcements that we are expecting to be made tomorrow about the EU border force. We will look closely at the proposals, but we will not take part in them because we are not part of the Schengen arrangements. To ensure that our national interests are protected, we will scrutinise them carefully.

[Sir William Cash]

I am extremely grateful to the Minister for those remarks.

The UN convention on refugees was incorporated into EU law by virtue of the charter of fundamental rights, so when the European Court of Justice implements EU policies, it interprets key passages such as the right of migrants to claim asylum if they reach EU territory, under article 18 of the charter, and the non-refoulement prohibition on removal to an unsafe state, under article 33 of the UN convention. There is therefore interaction between the 1951 UN convention and the charter of fundamental rights.

As the Minister will know only too well, the European Scrutiny Committee looked at the problem of the charter of fundamental rights in the last Parliament and came to the conclusion that we should override it. I do not want to go back into that debate too much, but I remind him that the previous Labour Government were completely against the incorporation of the charter into the Lisbon treaty. Furthermore, the noble Lord Goldsmith, who was the then Prime Minister Tony Blair’s envoy, sought and achieved a protocol that, on the face of it, excluded the charter of fundamental rights from UK legislation. We argued about that in the European Scrutiny Committee at the time, and I and other members of the Committee warned that it would not stick. Sure enough, as usual—I say “as usual” with regret—our prediction was right, and the European Court of Justice is now applying the charter of fundamental rights within the scope of European law. That is part of the problem, because as I have said, the charter incorporates the UN convention on refugees and all the definitions that go with it. As I said, I believe that those definitions must be reviewed, but they cannot be reviewed if they are part of the charter, which is applied by the European Court of Justice.

For practical purposes, the whole issue is caught up in the acquis communautaire. That is causing an enormous problem of interpretation and a logjam in the ability to deal with migration policy. I freely admit that a lot of this is a bit complicated, but unfortunately many people over the years have failed to understand that European Council and Council of Ministers meetings are not just about people sitting around and deciding to tweak education policy or transport policy, as Cabinet meetings might be in relation to domestic legislation. Decisions at those meetings lock the United Kingdom into legal obligations that can be removed only by the unanimity of all member states. That is the problem—it is a legal and political system, and it affects the issue of whether people are refugees or migrants.

I have no less sympathy for genuine refugees than anybody else. I have devoted a great deal of my time in the House to international development issues such as sanitation and water and people who are in refugee situations, but the current problem is not the same thing. It is not about having policies that we can rearrange and adjust; it is about the fact that we are being driven into a deeper acquis. That needs to be said in this debate, because the charter of fundamental rights means that the human rights dimension of the current problem, including the definition of refugees and asylum seekers, is locked into the acquis. In my opinion, that is one reason why so few of them are being dealt with appropriately.

As the Minister and I, and all of us, know only too well, the UK is not part of Schengen, but we are part of the Dublin regulation, which means that EU states and other UN convention signatories are obliged to allow for asylum claims as of right if a migrant reaches EU territory. However, the UN convention is not specific about how that obligation needs to be disposed. Arguably, to claim asylum under the convention, a refugee needs to arrive directly from the state from which they are fleeing. In practice, that can mean that an applicant has not been processed elsewhere en route. We are now dealing with 900,000 people, and the scale of the situation is as much of a problem as anything else.

Under the convention and the charter of fundamental rights, frontier states are not—I repeat not—allowed to block the entry of those with a genuine right to claim asylum. The question of setting up a border fence—as I said earlier, there is more barbed wire in Europe than at any time since the cold war—is extremely uncertain in law. The non-refoulement prohibition in the UN convention on the removal of an asylum seeker to an unsafe state can also be interpreted in different ways, including so as not to exclude removal to a safe third state or safe recent transit state. I want to get this on the record, because it is important that the Government look at it all carefully when they get the opportunity to do so. As I said, the charter of fundamental rights is subject to the European Court of Justice, whereas the United Nations convention is only a convention. We are dealing with a complicated legal situation, which I believe is generating even more problems from the European Union.

Although I accept entirely that this motion is merely one that “takes note”, many of the things that I have said have not been incorporated in the motion. I say with great respect to the Minister and to the Minister for Europe that some of these issues are difficult and intractable, but they none the less relate to the Schengen area and have a continuing and ongoing effect on the UK. I say that because as long as we remain part of this European Union—the Minister will accept that I do not think we should any more—we do not alter the fact that we are affected by these things. This migrant issue, with all the tragedies it involves for those who are drowning in the Mediterranean and with the great deal of problems that come from fake passports, jihadists and so on, makes the situation even worse. I simply say to the Minister that he should not think I am asking him to reply to all these points this evening, as I am sure he will not have the chance to do so. Will he, however, please take note of the fact that there are other arguments than those contained in the motion?

Clandestine Migrants (Harwich)

Debate between James Brokenshire and William Cash

Monday 8th June 2015 Commons Chamber

[James Brokenshire]

The right hon. Gentleman has asked a series of questions. I may not be able to answer all of them in the time available, but I welcome his constructive approach.

The right hon. Gentleman highlights the need to work jointly with other European countries, and I agree. That is why we have a dedicated UK taskforce in Dover which provides real-time intelligence and investigation response to all operations. For example with links to France and Belgium, 32 live investigations and 22 organised crime groups have already been disrupted since February 2014, and the total custodial sentences to date is 148 years. I hope that answers his question about the body of work.

The right hon. Gentleman highlights the work that we have rightly undertaken in Calais with the French authorities—the £12 million joint investment with the French Government to strengthen security at that port. That is on top of additional investment in screening and other detection equipment, which underlines our strong, practical response.

The right hon. Gentleman talked about the number of Border Force officers—there are around 8,000. They are deployed flexibly, by which I mean that it is dependent on the intelligence that we see for a particular port at any one time. Therefore, it is not appropriate to give the breakdown or percentages that he seeks, but we rightly take a responsive stance to deal with such issues.

The right hon. Gentleman also highlighted the need to ensure adherence to the Dublin regulations that allow us to return people who may have been able to claim asylum in other countries. We take that responsibility seriously and we continue to press other European countries in that regard.

One of the key things is to ensure that those who arrive in the European Union are properly fingerprinted and that we identify those who come to our shores. More work needs to be done on that and we will continue to press other European countries to fulfil their responsibilities.

[Sir William Cash (Stone) (Con)]

Will the Minister assure us that the traffickers, if convicted, will not be allowed to use any of the legal procedures under the Human Rights Act or the charter of fundamental rights to avoid immediate deportation?

[James Brokenshire]

My hon. Friend makes an important point about the work that the Government have done through the Immigration Act 2014—to put in place clarification of article 8, for example, on the right to a family life, to ensure that it is properly balanced—so that we can seek removal. I am sure that such issues of fundamental and human rights are ones that we shall return to during the course of the Parliament.

Counter-terrorism

Debate between James Brokenshire and William Cash

Tuesday 24th March 2015 Commons Chamber

[James Brokenshire]

This secondary legislation has been brought forward to implement measures in the Counter-Terrorism and Security Act 2015. The measures were debated by the House very recently and the primary legislation was enacted only on 12 February. During Parliament’s consideration of the legislation, there was widespread recognition of the threat from terrorism and broad support for the measures in the Bill. The instruments bring to life two of those important provisions. In passing the legislation in February, the House accepted the need for these measures.

I should inform the House that the Joint Committee on Statutory Instruments has considered both the instruments we are debating. I place on the record my appreciation for the forbearance that was shown by the Chair and members of the Committee in considering the instruments outside the normal time scales. The Committee cleared the Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015, but drew the attention of both Houses of Parliament to the Civil Procedure (Amendment) Rules 2015. I shall return to the issues that were highlighted by the Joint Committee later in my contribution.

It may help the House in its consideration of the instruments if I briefly outline what the Government seek to achieve by them and why we have brought them forward at this time. The regulations have been brought forward in respect of part 5 of the 2015 Act, which is concerned with reducing the risk of people being drawn into terrorism. During the recent debates on the primary legislation, there was a very informed debate on the duty that is imposed by section 26 of the Act, which is known as the Prevent duty. The regulations are crucial to the effective implementation of the new duty.

The purpose of the regulations is threefold. First, they amend schedules 6 and 7 to the 2015 Act to add Scottish bodies to the list of authorities that are subject to the Prevent duty and to those that are listed as partners to local authority panels, which are required to be in place by section 36. Those panels form part of the Channel programme—the deradicalisation programme—in England and Wales, and Prevent Professional Concerns in Scotland, which are programmes designed to provide support to those who are vulnerable to being drawn into terrorism.

Secondly, the regulations make a number of amendments to the Act that are consequential on adding those Scottish bodies. In particular they ensure that Scottish further and higher education institutions will have the same requirement to have particular regard to the need to ensure freedom of speech and the importance of academic freedom while complying with the Prevent duty as their counterparts in England and Wales. It has always been the Government’s intention that provisions in part 5 of the Act would apply to bodies in Scotland. We have consulted Scottish Ministers, and they are supportive of adding Scottish bodies to the duty.

Thirdly and finally, the regulations will bring into effect guidance issued under section 29(1) of the Act for specified authorities in carrying out the Prevent duty. The guidance sets out the detail of what that duty will mean in practice for authorities subject to it, and seeks to explain the steps that should be taken to best secure compliance.

The House will recall that the Government introduced an amendment to the Bill to ensure that the guidance will only take effect following Parliament’s approval. During the passage of the Bill, a formal public consultation on the draft guidance took place, and hon. Members will have read the summary of responses referenced in the explanatory memorandum. More than 1,700 responses were received during the consultation, and another 300 people were reached over the course of five events held in London, Manchester, Birmingham, Cardiff and Edinburgh. The responses enabled a thorough revision to take place, and the results of that revision are now before the House.

There are two versions of the guidance: one for authorities in England and Wales, and a separate one for authorities in Scotland. Following discussions with the Scottish Government, the Government decided that separate guidance that specifically addresses the particular circumstances of Scotland would be more helpful than trying to address those circumstances through one set of guidance. The Scottish guidance has also been subject to consultation through a targeted process undertaken by the Scottish Government.

Hon. Members will have noted that neither document addresses the issue of managing speakers and events in further and higher education institutions. How universities and colleges balance the Prevent duty with the need to secure freedom of speech and have regard to the importance of academic freedom is an extremely important issue that requires careful consideration. On account of that, the Government amended the legislation to ensure that institutions pay particular regard to the importance of academic freedom and freedom of speech when complying with the Prevent duty. As I made clear during the passage of the Bill, that freedom is important in challenging extremist views and providing almost an antidote to some of the extremism that might take place were it not for that challenge. We shall use the time before the duty commences to produce further guidance on managing speakers and events in further and higher education institutions, and it will be for the next Government to bring that to Parliament early in the next Session for the approval of both Houses.

[Sir William Cash (Stone) (Con)]

In the context of human rights legislation, and particularly the Human Rights Act 1998 and the charter of fundamental rights, which is increasingly being brought in by the European Court of Justice, does the Minister believe that these proposals, and many aspects of the Counter-Terrorism and Security Act 2015, will survive against those in the human rights lobby who are determined to put human rights ahead even of the prevention of terrorism?

[James Brokenshire]

Yes, I am confident of that. Obviously, we considered the implications of the Human Rights Act when the primary legislation was taken through this House. That does not necessarily mean that it will not be subject to legal challenge—we have legal challenge for all forms of legislation—but we are confident about the way the measure has been brought forward, and it touches on the competency of member states in national security issues. I recognise the long-standing and consistent approach that my hon. Friend has highlighted, and I am sure he will continue to highlight it to ensure that we get legislation in the right place and properly consider human rights challenges and other issues in that regard. I welcome his intervention.

As for the guidance itself, it is essential that it is accurate and workable for all institutions. It is not the Government’s intention that the duty in respect of higher education and further education institutions should commence for those sectors until guidance on speakers and events has been published. This, as I have explained, will of course be for the next Government to carry through.

It is important to take the opportunity to remind the House of the purpose of the new duty and its importance. The emergence of ISIL and the number of people—particularly vulnerable, young people—who have misguidedly travelled to Syria and Iraq present a heightened threat to our national security. The intelligence agencies tell us that the threat is now worse than at any time since 9/11. It is serious and it is growing. The threat has changed and so must our response.

As part of that response, we need to continue to combat the underlying ideology that feeds, supports and sanctions terrorism, and to prevent people from being drawn on to that path. The Prevent duty will ensure that such activity is consistent across the country and in all bodies whose staff work on the front line with those at risk from radicalisation.

[James Brokenshire]

I commend the hon. Gentleman for highlighting the work of community groups in his constituency. Some incredible people and organisations are standing up against terrorism, highlighting the peaceful nature of the Islamic religion and challenging some of the ideological underpinning that has been perversely twisted by those who support ISIL and other terrorist and extremist organisations. It is the work of community, family and people in the locality and the neighbourhood that is making a real difference in standing together and confronting and combating pernicious ideology. This is a generational struggle. Bringing forward the guidance and the Prevent duty underlines the important responsibility we all have—government, community, family and individuals—to stand together to ensure that a clear and robust message is given. I know that good work is taking place in Cardiff and in many other parts of the country to do precisely that. I welcome the opportunity to put that on the record this afternoon.

I would like to turn now to the Civil Procedure (Amendment) Rules 2015. The Counter-Terrorism and Security Act 2015 introduced temporary exclusion orders, which enable the Secretary of State to disrupt and control the return to the UK of certain British citizens suspected of engaging in terrorism-related activity abroad. TEOs also enable the Secretary of State to impose certain requirements on individuals on their return to the UK.

The House will recall that the Government introduced two stages of judicial oversight of this power during the passage of the Bill. The first stage requires the Secretary of State to seek permission from the courts prior to imposing a TEO or, in exceptional circumstances, to seek such permission from the courts retrospectively. The second stage provides a statutory review mechanism to enable the TEO subject to challenge the imposition of the order and any obligations imposed on their return to the UK. That judicial oversight was introduced in response to concerns raised by right hon. and hon. Members on all sides of the House, and was welcomed during consideration of the amendments made in another place.

The Civil Procedure (Amendment) Rules 2015 are required to implement this judicial oversight in England and Wales. The instrument introduces the court rules for temporary exclusion order proceedings in the High Court and appeals to the Court of Appeal, which are essential to ensure we are able to operate the appropriate safeguards for this power. I have already mentioned that the Joint Committee on Statutory Instruments has reported this instrument and drawn it to the attention of the House.

The Government have acknowledged the issues raised by the Joint Committee and committed to updating the rules by an amending instrument as soon as practicable. That amending instrument will be made by the Civil Procedure Rule Committee, and I can assure the House that the process for doing so is already under way. However, as the Government made clear in their response to the Joint Committee, we do not consider that the drafting errors acknowledged render the rules invalid or inoperable. The court rules are required in order to implement the important judicial oversight of TEOs in England and Wales.

[Sir William Cash]

My hon. Friend can probably guess that I am about to ask a question similar to my last one about judicial oversight, the charter and human rights legislation. I am sure he recognises that there is a potentiality, if not a certainty, that these matters will be challenged, particularly the exclusion orders. Does he not think that there is still time to consider imposing a restriction on those who have repudiated allegiance to the UK to prevent their returning to the country?

[James Brokenshire]

My hon. Friend tempts me into a broader debate that extends beyond the statutory instruments and deals with preventing from returning to this country people who have engaged in activity contrary to the interests of this country. This issue was considered at length in this House and the other place, and it was determined that TEOs were the appropriate mechanism, considering our international obligations and the issues he highlighted of legal challenge and ensuring an effective mechanism. We judge that the TEOs provide this, but we recognise the potential for challenge. Indeed, we have built in an oversight process through the scrutiny of the judiciary.

I hope that I can assure my hon. Friend that the rules are based on those used for similar preventive measures, such as terrorism prevention and investigation measures, some asset-seizing legislation and closed material proceedings, and therefore are based on the experience and judicial oversight applied to those rules. I hope that gives him some assurance of the careful consideration we have given to the rules.

[Sir William Cash]

I raised this question precisely because of my concerns about how the judiciary is effectively subordinated to the European Court of Justice, which overrides not only our Supreme Court but this Parliament. On matters concerning TPIMs, control orders and the rest of it, the Minister knows that people who should never have been allowed out have continued their stay.

[James Brokenshire]

I can assure my hon. Friend that TPIMs are robust and that we have taken steps to ensure their legal compliance. That was considered when they were introduced and during the passage of the Terrorism Prevention and Investigation Measures Act 2011. I fear that I am straying from the statutory instruments, but I recognise his challenge and assure him that our consideration of the rules reflected our experience of similar orders and some of the operational legal practice that the rules intend to operate.

The regulations are needed to implement effectively the Prevent duty across England, Wales and Scotland, which ultimately will help the Government and law-enforcement agencies to keep the country safe from terrorism, and the court rules govern proceedings that are essential to ensure appropriate safeguards for the TEO. With those comments, I hope the House will be minded to support the instruments.

Counter-Terrorism and Security Bill

Debate between James Brokenshire and William Cash

Tuesday 6th January 2015 Commons Chamber

[James Brokenshire]

I absolutely endorse what my hon. Friend has said. This is not about citizenship. This is a temporary exclusion order. I have said in the House on many occasions, and indeed in evidence to Select Committees, that individuals will not be rendered stateless. They will not be left unable to return to the UK for an indefinite period—they must be issued with a permit to return within a reasonable period of time if they apply for one and attend an interview if required to do so. Quite simply, the power ensures that the Secretary of State is able to control the return of certain individuals suspected of terrorism-related activity abroad and appropriately manage the threat that they pose once they have arrived back in the UK. Obviously, they will be excluded for a time during which the permission may be granted—indeed, they may choose not to return during that time—but the power is framed in that manner and does not link into the broader issues of statelessness that are of concern to some Members and have been addressed more recently in the Justice and Security Act 2013, for example.

[Sir William Cash]

Would the Minister be good enough to explain why there is no condition applied for a temporary exclusion order where the individual has clearly repudiated allegiance to the UK, has adopted jihad and has sworn allegiance to an organisation such as ISIL? In those circumstances, how could we possibly not want to exclude such a person?

[James Brokenshire]

I will come on to my hon. Friend’s amendments later, but the test is

“that the Secretary of State reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom”

and

“that it is necessary, for purposes connected with protecting members of the public in the United Kingdom”

to put the measure in place. I argue that the circumstances or scenario that my hon. Friend describes are potentially captured within the terms of the existing definition. However, I will return to his specific points in due course.

In the framework that we have adopted here, the individual’s passport would be revoked and they would be placed on a no-fly list, but their daily activities would not be disrupted in the same way as, for example, a TPIMs subject. This measure must be considered in that context. My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) highlighted the temporary nature of this; it is a two-year order that is capable of being renewed. As I have sought to describe, it is an issue of temporarily excluding during a period when someone may have made a request to return. The Bill clearly sets out the measures that would operate in those circumstances. Indeed, if deportation is envisaged the Secretary of State must, as clause 6 makes clear, issue a permit for return.

Turning to the amendments advanced by—

[Sir William Cash]

rose—

[James Brokenshire]

I promise that I will come back to my hon. Friend’s points, but I would like to get to the Opposition Front-Bench amendments. These amendments would require the Secretary of State to apply for permission from the courts before imposing a temporary exclusion order. The mechanism provided for in these amendments is almost identical to that in the TPIMs Act. As the Home Secretary stated in Committee, as the Minister with responsibility for national security it is right that she, not the courts, imposes an order of this kind. This is a discretionary power which will be used only in a limited number of cases where it will have the greatest impact.

Several Members have shared their views on the matter of oversight of this measure. I think a distinction is being drawn, and I will come on to the other amendments tabled in the group. It must be clear that, with responsibility for all other national security and counter-terrorism matters, it is the Secretary of State who is best placed to make an informed judgment about whether a temporary exclusion order is appropriate in each case, taking into consideration the wider context of the terrorist threat that we face. Indeed, as my right hon. Friend the Home Secretary outlined in Committee,

“to vest the power to impose one of these orders in the Secretary of State without first requiring an application to the courts is in line with the comparable use of the royal prerogative to cancel the passport of a British citizen.”—[Official Report, 15 December 2014; Vol. 589, c. 1208.]

We must also consider in this context the level of interference with an individual’s rights as a result of the power, and I reiterate that a temporary exclusion order does not take away the right of an individual to return to the UK. The in-country elements that might be imposed on an individual as part of it are much less restrictive than those available under TPIMs, and for this reason do not require the same level of review. That is the approach we have taken.

--- Later in debate ---

[James Brokenshire]

I have clearly recognised the issues highlighted by David Anderson and by right hon. and hon. Members during this debate. The hon. Gentleman should take reassurance from my statements.

Amendments 21 and 23, which are in the names of my hon. Friends the Members for Stone (Sir William Cash) and for Gainsborough (Sir Edward Leigh), seek to create additional circumstances under which a temporary exclusion order may be imposed. I recognise the intention behind the amendments, and of course the Government agree that anyone who has pledged allegiance to another state or territory and repudiated their allegiance to the UK should be handled appropriately. However, the measure before the House has been carefully crafted with the specific conditions that I have highlighted. Indeed, the amendments appear to go significantly beyond the measure and would mean that an individual could be made subject to a temporary exclusion order without the Secretary of State reasonably suspecting that they have been involved in terrorism-related activity abroad; without the Secretary of State reasonably considering that the imposition of such an order is necessary to protect members of the public in the UK from the risk of terrorism; and, crucially, without the Secretary of State believing that the individual is located outside the UK, which goes against the heart of the temporary exclusion power.

My hon. Friend the Member for Stone is seeking to advance an argument that is perhaps more about addressing statelessness and citizenship, which strays beyond the ambit of the Bill and the temporary exclusion order. We have previously corresponded on the issue in the context of the scope of the 1961 convention on the reduction of statelessness. We perhaps differ on the interpretation of some of the detail, but the Bill has been appropriately framed and allows the Secretary of State to act clearly to ensure national security by taking action against those persons whom she reasonably suspects are involved in terrorism-related activity outside the UK, which goes to the heart of the measure.

[Sir William Cash]

The Minister frames his response in a reasonable manner but, in line with the international convention on the reduction of statelessness, which is relevant to this measure and to which David Anderson did not refer when he appeared before the Joint Committee on Human Rights, it is an act of treason when a person repudiates allegiance. Such repudiation is not just a theoretical, academic act under an ancient 1351 enactment; it is the repudiation of allegiance to the state. When someone repudiates that allegiance and adopts an allegiance to another state, it is treason. Surely, by their self-denial and repudiation, they have denied themselves the right to the liberties that have been referred to continually by all my colleagues who have said that we must insist on the common law and on the liberty of the subject. Such people repudiate it themselves.

[James Brokenshire]

I recognise the strength of feeling that my hon. Friend and other hon. Members have on the need to ensure that we are acting appropriately to address the threat of terrorism and the dangers and harm that may be caused by jihadists who have travelled abroad and who may wish to return to this country. This measure is about precisely that, which is why it is framed in this manner and why we have legislated for prosecutions to be brought where people return to the UK after committing acts abroad that would justify prosecution in this country. I recognise my hon. Friend’s points, but our judgment is that the Bill properly reflects that and gives the appropriate power.

With those comments, I hope right hon. and hon. Members will be minded not to press their amendments.

Data Retention and Investigatory Powers Bill

Debate between James Brokenshire and William Cash

Tuesday 15th July 2014 Commons Chamber

[James Brokenshire]

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

[Sir William Cash (Stone) (Con)]

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

[James Brokenshire]

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

--- Later in debate ---

[James Brokenshire]

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

[Sir William Cash]

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

[James Brokenshire]

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

--- Later in debate ---

[James Brokenshire]

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

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

[Sir William Cash]

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

[James Brokenshire]

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

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

[James Brokenshire]

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

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

[Sir William Cash]

May I make one last intervention?

[James Brokenshire]

One last go.

[Sir William Cash]

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

[James Brokenshire]

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

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

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

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

--- Later in debate ---

[Sir William Cash]

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

[James Brokenshire]

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

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

--- Later in debate ---

[Dr Huppert]

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

Clause, by leave, withdrawn.

New Clause 5

Effect and justiciability of this Act

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

Brought up, and read the First time.

[Sir William Cash]

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

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

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

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

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

[James Brokenshire]

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

[Sir William Cash]

I wish to press my new clause to a Division.

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

Protection of Freedoms Bill

Debate between James Brokenshire and William Cash

Tuesday 11th October 2011 Commons Chamber

[James Brokenshire]

I think that is right. In many ways it is why the Government have taken the approach that we have. Ultimately, it would be for the House to decide whether the circumstances justified the introduction of the emergency legislation. That is an important protection, and represents the underlying distinction in the Government’s approach.

Hon. and right hon. Members who sat on the Public Bill Committee will recall that we had extensive debates in Committee on what the maximum period should be, in what circumstances the Government might seek to extend that period, and what kind of contingency mechanism they might employ to extend the maximum period. As I said then, the Government have prepared draft fast-track legislation, which at the time was subject to pre-legislative scrutiny. The Joint Committee undertaking that scrutiny reported in June, and I am grateful to Lord Armstrong of Illminster and the other members of the Committee for their careful consideration.

[Mr William Cash (Stone) (Con)]

Does the Minister believe that habeas corpus itself is in any way affected by the proposals before the House in the new clause, and does habeas corpus not, as Lord Steyn has said repeatedly, supervene against any other jurisdiction, provided that its operation is not excluded by statute?

[James Brokenshire]

I know that that is a particular concern for my hon. Friend, but we do not think that it is engaged in that way. I know that he has introduced a Bill previously on this subject, but the clear advice I have received is that the answer is no.

Although the Government still believe that fast-track legislation is the most appropriate contingency mechanism for increasing the maximum period of pre-charge detention, we recognise that, as the Committee pointed out, that approach would not be feasible during any period when Parliament was dissolved. No contingency mechanism will be perfect or able to meet all operational needs while at the same time satisfying every concern that Parliament and the public might have, but we recognised the point raised by the Committee about what would happen if Parliament were dissolved. New clause 13 has been introduced to address that specific concern.

I am aware that the Committee concluded that the Government’s intention to rely on fast-track legislation for other periods was not appropriate, citing potential problems with parliamentary debates and possible difficulties with recalling Parliament during a long recess. New clause 14, tabled by the right hon. Member for Wythenshawe and Sale East (Paul Goggins), attempts to deal with that issue by introducing an order-making power to increase the maximum period of pre-charge detention, which would be available when the Attorney-General certified that exceptional circumstances applied. The new clause also includes a number of proposed safeguards relating to that power, including retrospective parliamentary approval and a number of conditions that would have to be satisfied before a High Court judge could approve any individual applications for extended detention up to 28 days.

I very much welcome the continuation of the debates that the right hon. Gentleman and I have had over terrorism legislation, and many of the themes that come through in this debate were apparent in our debates on the Terrorism Prevention and Investigation Measures Bill, the enhanced regime and the provisions that it introduced. I think that it is right and proper that we have the debate on the issue in this Bill, particularly as the Joint Committee’s investigation related to the emergency draft legislation to which the Bill is in essence connected with regard to an increase from 14 to 28 days. However, we believe that the exceptional nature of these powers to extend the maximum period beyond 14 days means that, where feasible, the principle of 28- day detention should be debated and approved by Parliament.

In response to the Joint Committee’s report, the Home Secretary said:

“An order-making power of the type described in the Committee’s report”—

and in many ways reflected in the new clause that the right hon. Member for Wythenshawe and Sale East has tabled—

“would…not be a clear expression that the ‘normal’ maximum period of pre-charge detention should be no longer than 14 days.”

She went on to say:

“28 day detention is so exceptional that I continue to believe that Parliament should have the opportunity to debate the issue first, and that the most appropriate and effective way to do this is by using emergency primary legislation.”

--- Later in debate ---

[Mr Cash]

I am sure the Minister appreciates that he is treading a rather wobbly line, because clause 57 talks about a permanent reduction in the maximum detention period to 14 days, yet, during the rather special circumstances when Parliament is not sitting or has been dissolved, he is prepared to countenance the idea of an emergency arrangement that would produce 28 days. I happen to be in favour of more than 14 days, but is it not the case that, ultimately, the test should be what is in the interests of the security of the nation, and that, if it is good enough to extend 14 days to 28 in such circumstances, it should apply or could apply generally?

[James Brokenshire]

We come back to what I spoke about—the exceptional nature of the powers sought and the point that 14 days should be the norm. Through the new clause, we seek to address the very limited circumstances in which Parliament is not functioning, and we recognise and take on board the Joint Committee’s comments on that. In those circumstances, the Home Secretary and the Government need to be able to act in the national interest to ensure security. For that reason, the emergency order-making power in new clause 13 is limited to periods when the introduction of primary legislation would not be possible—that is, when Parliament is dissolved or before the first Queen’s Speech of the new Parliament.

As we set out in the Government’s response, published last week, to the Joint Committee’s report, we welcome two of the Committee’s further recommendations for increased safeguards, and we have included them in new clause 13. First, applications for any warrant of further detention that would see an individual detained for longer than 14 days may be made only with the personal consent of the Director of Public Prosecutions or the equivalent post holder in Scotland or Northern Ireland. Secondly, whenever an individual is detained for longer than 14 days, their case will be reviewed by the independent reviewer of terrorism legislation, or someone on their behalf, and a report of that review will be sent to the Secretary of State as soon as possible.

Both those changes will also be incorporated in the draft fast-track legislation to increase the maximum length of pre-charge detention to 28 days. New clause 13 and consequential amendments 79 and 80 ensure that there is an effective contingency mechanism for increasing the maximum period of pre-charge detention in the limited period during which Parliament is dissolved. It is right that we should continue to rely on fast-track primary legislation in all other circumstances. On that basis, I commend new clause 13 to the House.

Prevention and Suppression of Terrorism

Debate between James Brokenshire and William Cash

Wednesday 2nd March 2011 Commons Chamber

[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.

[Mr William Cash (Stone) (Con)]

I should like my hon. Friend to take note of the observation made by a former Home Secretary, Charles Clarke:

“The principal responsibility of the judiciary is to justice and to the liberty of the citizen properly carried through, but not to the security of the nation.”

Is my hon. Friend also aware of my Prevention of Terrorism Bill, which I introduced today? The object of the Bill is simply to disapply the Human Rights Act 1998 in respect of these matters in order to ensure that we maintain habeas corpus, due process and fair trial, even in the case of alleged suspects.

[James Brokenshire]

I am aware that my hon. Friend has introduced a Bill, although it would not strictly apply in the context of this debate on control orders and the new proposals that we are seeking to introduce, given that his Bill applies to provisions allowing for detention. That means that it would not affect these measures, because they do not allow for detention. I note that he has sought to introduce his Bill, but I do not think it is directly relevant to this debate.