Combating Terrorism

Kelvin Hopkins Excerpts

Monday 7th March 2016 General Committees

[Kelvin Hopkins (Luton North) (Lab)]

It is a pleasure to serve with you in the Chair this afternoon, Mr Bailey. The recent terrorist attacks in Paris have increased awareness of the threat presented by foreign terrorist fighters and radicalised individuals who have travelled to conflict zones and returned to the EU to carry out acts of terrorism. Widespread use of the internet and social media have made it easier to disseminate terrorist propaganda, radicalise and recruit new activists, and plan and co-ordinate operations.

The Commission considers that changes are needed to existing EU laws to keep pace with the evolving nature of the terrorist threat. It proposes a new directive that will bring EU rules on terrorism together in one legal text and update them to reflect recent developments in international law. The changes proposed will require member states to make it a criminal offence to travel abroad to receive training, or to organise or facilitate such travel, for terrorism purposes. The proposed rules also enhance the rights of victims of terrorism to receive free assistance and support in their member state of residence.

The proposed directive will apply only to the UK if the Government decide to exercise their right under the EU treaties to opt in. The deadline for that expires on 23 March, but, if the Government wish, they could have a second bite at the cherry and seek to opt in after negotiations have concluded and the directive has been adopted.

The European Scrutiny Committee welcomes the fact that the Government’s opt-in decision is to be debated before the UK’s opt-in deadline expires. Obvious though that may seem, it has not always been the Government’s practice to schedule timely debates. It is none the less disappointing that the Government have not heeded the Committee’s clear recommendation for a debate on the Floor of the House to allow the House as a whole to consider and weigh up the factors that resulted in the Government’s decision not to participate in the proposed directive. There can be few more important decisions, given the questions about the security of the EU’s external borders and the fact that member states in the Schengen free movement area are taking unilateral action to protect their borders. I look forward to hearing the Minister explain why the Government’s opt-in decision does not merit the exposure and scrutiny of a Floor debate.

The Minister’s explanatory memorandum on the proposed directive set out a comprehensive list of factors that the Government would weigh in reaching their opt-in decision, which include long-standing concerns about ceding competence to the EU in areas of policy that affect national security as well as the implications of accepting the jurisdiction of the Court of Justice. However, he also acknowledged that the UK’s opt-in decision could have both practical and symbolic effects. Might, for example, UK participation in the proposed directive make UK citizens safer or demonstrate that the EU is united in its response to recent terrorist atrocities? I trust that he will explain how the Government have weighed all those factors and concluded that the risks of participation outweigh the benefits.

A debate was recommended to find out whether, despite the Government’s decision not to opt in, the Minister considers that the proposed directive will ensure a more coherent and consistent approach to tackling terrorism and foreign terrorist fighters across the EU. What assurances can he give us that there will be no legal or operational gaps in the ability of the UK and other member states to investigate and prosecute terrorist offences, particularly when there is a cross-border dimension? Will he confirm that the Government’s decision not to participate in the directive will not impede UK law enforcement authorities in co-operating and exchanging criminal intelligence with their counterparts in other EU member states?

Finally, the European Scrutiny Committee pointed to questions such as: how active a role does the UK intend to play in the negotiations and what are its negotiating objectives? How soon does the Minister expect agreement to be reached within the Council? What is the European Parliament’s position, and do the Government intend to review their decision not to opt in once the negotiations have concluded and the final content of the directive is known?

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[The Chair]

We now have approximately 52 minutes for questions to the Minister. May I remind Members that questions should be brief and not speeches? There is an opportunity to make speeches in the debate that will follow the question section. It is open to a Member, subject to my discretion, to ask related supplementary questions.

[Kelvin Hopkins]

An important question that I raised in my introductory remarks is: why did the Government choose once again to refer this matter to Committee, rather than have a debate on the Floor of the House, as requested by the European Scrutiny Committee? This is a matter of great importance and deserves to be discussed in a much more public forum than a Committee.

[James Brokenshire]

There is always an issue with the scheduling of such debates. As the hon. Gentleman highlighted in his opening comments, the Government recognise the need for these issues to be debated in a timely fashion before the opt-in decision is taken. I hope this debate provides an opportunity for Members to question me and debate this important issue and the EU’s relationship with the UK with respect to counter-terrorism matters.

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[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.

[Kelvin Hopkins]

I take with a pinch of salt the Minister’s suggestion that time restrictions meant the measure could not be discussed on the Floor of the House. Time and again, business finishes short and we go home early, but that is not my question. My question is this: what conclusions did the Government draw on the implications for the UK of accepting the jurisdiction of the Court of Justice and on the impact of participation in the proposed directive on the UK’s ability to act in its own right in negotiations on terrorism-related matters in international organisations such as the UN and the Council of Europe?

[James Brokenshire]

As I have indicated, we have considered this matter in the context of the UN Security Council resolution that I mentioned in my opening remarks. Under the previous legislation considered by the House, we decided to give extraterritorial jurisdiction to certain measures in the 2006 Act. This matter was certainly considered carefully at that time. Obviously, this is a new measure, but our judgment remains that there is no need to extend our territorial jurisdiction for the issues outlined.

On the jurisdiction of the Court of Justice, we have obviously considered the measure against the backdrop of national security being a member state competency that we have upheld. Regarding the renegotiation, the legally binding decision supports the UK in reiterating its sovereignty in relation to matters of national security. Our new settlement includes a legal confirmation that the UK’s national security is the sole responsibility of the UK Government and helps us to ensure that we can exercise our sovereign responsibility for national security without interference from the EU, while retaining the freedom to collaborate closely with our EU counterparts where it is right to take collective action to tackle the threats we face. The decision makes it clear that EU institutions will fully respect member states’ national security responsibilities. The text is a signpost to institutions such as the Court to act in a particular way. As the Court confirmed in the Rottmann case, it is required to take the provisions into account when interpreting the treaties in future, which gives our decision force before the Court.

We have considered the matter carefully. As I indicated in my opening remarks, it was reflected on in terms of whether to opt in or out over and above the points that I have made about the directive being one of minimum standards. That affirms the fact that we can benefit from collaborating and having operational relationships with EU partners. Indeed, I can point to many issues in respect of Europol and other mechanisms that add real weight to our ability to protect UK citizens. Nevertheless, the judgment on this measure is that we should not be part of the directive itself, because we gain the operational benefit in any event, without being bound by the directive and all that that might bring in terms of ECJ jurisdiction.

[Kelvin Hopkins]

Personally, I support the view of the European Scrutiny Committee and support the Government’s decision on this matter. I will make a few more comments on that when we come to make a decision. Nevertheless, there are concerns about the rights of victims. Victim Support has made representations to the European Scrutiny Committee; I assume that it has made them to the Government as well. As the Government are minded not to opt into the proposed directive, is the Minister willing to commit to introducing comparable rights for victims of terrorism into UK domestic legislation?

[James Brokenshire]

We already have in place measures to provide compensation for victims of terrorism. For example, the Criminal Injuries Compensation Act 1995 provides powers for compensation schemes for blameless victims who have sustained criminal injuries, including as a result of terrorism. Victims of violent crime, including terrorism, have been eligible to apply for criminal injuries compensation since the inception of such a scheme for Scotland, England and Wales in 1964. The victims of overseas terrorism compensation scheme came into force in 2012, following the introduction of powers for such a scheme in the Crime and Security Act 2010. Before the establishment of that scheme, there was no compensation scheme for victims of overseas terrorism, aside from an ex gratia scheme also introduced in the same year. I underline the support and compensation arrangements that have existed.

On the broader issues relating to victims, the UK previously transposed the EU victims directive into our domestic legislation. Because of that, taken together with other statutory provisions, we are compliant with most of the measures for victims in the proposed directive. However, article 22 of the proposed directive, which provides that all victims of terrorism should receive free legal advice in a broad range of circumstances, might not be fully compatible with the current legal aid scheme in England and Wales because legal aid is means-tested and not always free. Under the Government’s proposed residency test, civil legal aid will normally be available only to those currently lawfully resident in the UK who have previously lived in the UK for 12 continuous months. The scope of the legal aid scheme does not generally encompass all civil proceedings—for example, damages claims, which the directive appears to envisage should be included. It is therefore possible that the scope of the existing legal aid scheme would need to be expanded to comply.

Legal aid is obviously paid for by the taxpayer and means-testing is a long-standing feature of the civil legal aid scheme. The Government believe that in principle, for individuals with a strong connection to the UK to benefit from the civil legal aid scheme, that is the appropriate way to structure it. That is why we intend to introduce a residence test for most types of cases funded by civil legal aid, as a fair and appropriate way to demonstrate that connection. We judge that the legal aid arrangements are fair, just and appropriate and that we have mechanisms rightfully in place to enable victims to seek compensation. Those schemes are available.

We consider the matter carefully through all the debates and in the light of the horrendous circumstances that many hon. Members have had to face up to in the wake of terrorist incidents. Many of us will have met families who have been seriously affected by the loss of loved ones, or people directly affected by lifelong injuries. The Government consider the matter carefully and have arrangements that respect the victims’ rights and ensure that compensation can be available.

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[James Brokenshire]

We are having this debate here this afternoon, and I have already explained our consideration of the matters; and the letter from my right hon. Friend the Security Minister in response to the report of the Committee sets the matter out very carefully. Obviously, we continue to keep the matters under review, and I would point out to the hon. Gentleman the debates on the Serious Crime Act 2015, when issues of extra territoriality were considered; that was precisely to do with assessments by our operational partners of how value could be added and how there could be a benefit.

There has been a great deal of consideration and the House has reflected closely on issues of extraterritorial jurisdiction. There is an assessment that we make on whether alternative offences are available—particularly the offence of preparing for terrorism, under section 5 of the 2006 Act, which is quite wide-ranging in its scope. Significant numbers of charges and prosecutions have been brought under it, and we judge that it is an appropriate way to see that action is taken against those preparing acts of terrorism, and we work with our operational partners to see that that happens.

[Kelvin Hopkins]

I have one more question on legal aid. Some of us strongly deprecate the Government’s cuts in legal aid, and their impact on many people in different walks of life, with different cases. Is there a possibility—the Minister touched on this—that legal aid might be differentially applied or provided to individuals, depending on where they live in the United Kingdom, such as in Scotland as opposed to England and Wales? The Minister has talked about England and Wales, but not about Scotland or Northern Ireland.

[James Brokenshire]

To clarify and be absolutely clear, I said the UK. I meant the sense of having a connection to the UK and was explaining why we intend to look at a residence test for most types of cases funded by civil legal aid, in respect of a connection with the UK.