Combating Terrorism

Lyn Brown Excerpts

Monday 7th March 2016 General Committees

[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.

[Lyn Brown (West Ham) (Lab)]

It is weird to come to a debate and not know what the Government are going to say before I sit down. Normally, it is very different. May I press the Minister further? Why has it taken the Government so long to make a decision? Despite being involved in the negotiations that led to this directive and despite supporting its aims, they seem to have prevaricated endlessly. We are days away from the deadline on the decision, so I do not agree that this is a timely debate. Given the Government’s stance, which we have just discovered, we should have had proper notification and a proper debate.

Were the delay and the opposition, which the Minister just outlined, caused by the Minister for Security—I see that he is not in his place—who is opposed to the Home Secretary’s and the Government’s position on EU co-operation on security policy? What further evidence can the Government provide on the security implications of not opting in? Specifically, have the Office for Security and Counter-Terrorism or the Joint Intelligence Committee been asked to consider this directive? Have they provided any advice? Will the Government publish a summary of the security implications of not opting in? Given that the Government have decided not to opt in, will the Minister agree to refer that decision to the Intelligence and Security Committee? Unlike Select Committees, referrals to that Committee must be made by the Government, not other parliamentary Committees.

The Minister for Security’s letter of 4 February outlined two changes to domestic legislation that would be required if we were to comply with the directive. First, we would need to amend section 17 of the Terrorism Act 2006 to extend the provision in section 2 to enable the offence of the dissemination of terrorist publications to be prosecuted in the UK, even if the offence is committed outside the UK. Secondly, legal aid would need to be provided to victims of terrorism who make civil claims. What practical issues did the Minister encounter on those fairly simple changes, and is that why the Government are opposed in principle to making the changes? Surely the Government are not opposed to the legislation because we would need to extend legal aid to victims of terrorism. It would be dreadful if that were the case.

[James Brokenshire]

There are a few questions to respond to. On the hon. Lady’s general point about the nature of this debate, I refer her to the explanatory memorandum, which sets out the various factors for consideration, and to the letter that we sent the European Scrutiny Committee in response to its report, for which we are very grateful. It sets out our logic and thinking on the points that the report made about, for example, extraterritorial jurisdiction and legal aid.

The fundamental point, which I alluded to in my opening speech, is that this is a minimum standards-type directive. We decided that it is not appropriate to stay within the 2002 framework decision, which this directive replaces, because we already comply with it. We felt that we did not need to adopt it because, again, it was a minimum standards-type requirement. We are fully compliant with the 2002 framework decision. Therefore, in our judgment, this measure does not impact on matters of operational requirement. This is something that we have considered very carefully. On the hon. Lady’s point about referral to other Committees, this matter has been considered carefully by the European Scrutiny Committee, which published a report to which the Government replied in the form of the Security Minister’s letter.

On the timing, the Government are often criticised for setting out up front our view about whether to opt in or out of particular measures. It is argued that that limits scrutiny because we have already set our minds in a particular direction. Therefore, there is normally a period of several weeks to allow the European Scrutiny Committee to assess the evidence and produce a report, which it has done, before the Government make a publicly stated commitment about whether to opt in or out. We are often told that stating our position too far in advance undermines scrutiny, but the hon. Lady said that not doing so causes confusion. It does not; it is about respecting scrutiny and the appropriate process, which the European Scrutiny Committee has gone through.

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[Lyn Brown]

I am a bit flabbergasted about this. Can the Minister please explain how what he has set out does not impede EU co-operation? I do not believe that in all the words he has said thus far he has told me whether the Office for Security and Counter-Terrorism or the Joint Intelligence Committee were asked to consider the directive, and, if they were, whether they provided advice. Will the Government publish a summary of the security implications of not opting in? I am increasingly getting the feeling that we are not opting into the directives because of the legal aid issue.

[The Chair]

Order. Could the hon. Lady confine her remarks to questions at this point?

[Lyn Brown]

I will. Thank you, Mr Bailey. I am sorry.

[James Brokenshire]

Our consideration of the matter is on the basis of not being subject to a minimum standards directive. The hon. Lady could make the same arguments on the 2002 framework directive, which we decided not to opt into because of the comprehensive range of counter-terrorism powers that we have in place. I reject her characterisation.

The Office for Security and Counter-Terrorism is part of the Home Office. We at the Home Office have reflected on the measure as part of the cross-governmental consideration of whether to opt into the matter. We have determined across the Government that opting in is not appropriate because of the counter-terrorism legislation that I have already outlined to the hon. Lady, the potential jurisdiction of the European Court of Justice and the implications of that, and the member state competency over national security, which is a fundamental issue on which the Government will not give way. We have underpinned and underlined that in the renegotiation. That is the consideration we have given. We set out the various issues clearly in the explanatory memorandum and in the response given by the Security Minister to the Committee’s report.

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[Lyn Brown]

It is an absolute pleasure to serve under your chairmanship, Mr Bailey, and to be here for the debate this afternoon. I thank the European Scrutiny Committee for raising the profile of the issue and for ensuring that we have this debate. I agree that the issue is worthy of consideration on the Floor of the House. I hope that the Government, even at this late stage, and after being pressed in this Committee, will reconsider and it will be possible to have that debate there.

From the outset, I think it is important that we are clear about what we are debating. We are debating whether the UK should opt into an EU directive on combating terrorism that has been proposed by the European Commission. The decision will be taken, as we have heard, by the British Government. Thanks to the European Scrutiny Committee, that decision will be scrutinised, informed and debated by Parliament.

The question that the British Government have to answer is whether it is in the UK’s best interests to opt into the collective set of measures to combat terrorism. They will be accountable to Parliament for their decision. What this is not is the European Union foisting regulations on the UK or this Parliament, and those who argue that every EU directive we opt into is an erosion of our sovereignty should remember the process.

Labour supports the directive and believes that the UK should opt in, as that will better ensure that there are no gaps in UK and EU security against terrorism and set a clear benchmark for all members. We recognise the point made in the European Scrutiny Committee’s report that there could be a

“risk that differences in the legal framework established at EU level and the UK’s domestic law could impede practical cooperation and make it more difficult to prosecute terrorist offences which have a cross-border dimension.”

Given the uncertainty of the Government’s case and the lack of an impact assessment, we believe that there is a clear national security case for opting in.

I want to comment on several of the specific issues raised by the proposed directive and highlighted by two excellent European Scrutiny Committee reports. Before that, however, I emphasise that the decision needs to be considered in the context of an increasingly international terror threat that requires an international response. We are having a specific debate about whether to opt into the directive in the context of the much wider conversation about whether we are fundamentally safer in the EU or outside it. No one can be in any doubt that the terror threat we face is severe and evolving. The Commission outlined that in its justification for the directive and that is acknowledged in the European Scrutiny Committee’s report. Terror groups such as Daesh are present in multiple states in Europe and the middle east and use their international networks to prepare terror attacks. That can be combated only through collective and consistent action across member states.

My hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) would have been here today but he is speaking for the Opposition in a Westminster Hall debate. Before entering the House, he was the Director of Public Prosecutions, acting to ensure convictions against terrorists, and he has explained in detail how the apprehension and prosecution of terror suspects are aided by EU measures: not just the principle of co-operation but specific tools that are used 24/7 by our law enforcement agencies. His intervention followed similar ones from senior police and intelligence figures, including Sir Hugh Orde, the former chair of the Association of Chief Police Officers and former Chief Constable of the Police Service of Northern Ireland. That view is also held by the Government’s national security advisers and the Home Secretary.

I am at a loss. British citizens will be safer if we ensure that all EU countries have tough and comprehensive anti-terror measures. Regardless of whether we are in the EU or not, we will remain vulnerable to attacks planned and partly orchestrated from abroad. We are safer if all EU countries have effective anti-terror provisions.

Another benefit of the directive is the protections afforded when British citizens are victims of terrorism in the EU. As we saw last year with the terrible attacks in Tunisia and Paris, British citizens are increasingly likely to be victims of terrorist attacks abroad. If an attack takes place in an EU country, articles 22 and 23 offer a basic framework of rights and protections to the victims of terrorism. Surely we should welcome that.

The Opposition believe that the enormous benefits of co-operation on terrorism and security measures mean we should opt into the directive today. I fully accept the argument that UK legislation is already compliant with all of the directive’s substantive requirements, but I do not see that as a reason not to put our name to the directive. Instead, we should be pleased that our legislation is being used as a benchmark for other states and aid the process.

The Government’s explanatory memorandum makes that argument well. In paragraph 35, it acknowledges that

“The UK actively participated in the negotiation of the final text of the Additional Protocol”,

which the directive builds on, and shares

“a keen interest in engaging positively and the importance of sharing best practice”.

Engaging and sharing best practice are best served by opting into the directive.

That does not mean that I do not agree with the Government and the European Scrutiny Committee that we should generally avoid the introduction of minimum standards in criminal law. Most crimes committed in the UK are the business of the UK Government, so it is for Parliament to decide what conduct should be considered criminal. However, it has long been realised that offences such as drug trafficking, terrorism and human trafficking have an international dimension and therefore they are covered by international law. The directive contains obligations already established by UN Security Council resolution 2178.

This is not the first time that an EU directive has demanded minimum standards on internationally acknowledged criminal action—the EU human trafficking directive makes similar demands because human trafficking is internationally recognised as a crime and it is best tackled through EU co-operation—so I genuinely struggle to understand the Government’s position on the directive, given its advantages to the EU’s and the UK’s security. The Opposition will push the motion to a vote and support a move to opt into the directive. The Government need to rethink their decision.

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[Lyn Brown]

One thing I did not bring out in my speech earlier was that, regardless of whether or not we opt into the directive, it will bring significant benefits to British citizens. I do not understand why we think that it is reasonable to receive and not reciprocate. Does the Minister seem like the kind of bloke who does not stand his round at the bar?

[Wes Streeting]

I am surprised at the Government’s response, given the role that they have played in shaping the directive. Indeed, the Security Minister acknowledges in his memorandum that a case can be made for action at EU level to ensure a consistent approach to combating terrorism. The Government have exercised their influence and expertise to ensure that that approach has been adopted by our European partners. As is becoming familiar on a range of issues, but particularly, and alarmingly, national security, I suspect that the politics within the Conservative party and its divisions over Europe are having a far too great a bearing on deliberations right across the House.

That brings me to the substance of my concern. People complain about a lack of influence, or Parliament’s lack of involvement in the making of laws and directives that affect our people, our courts and how we go about our business in this country, but every Member of Parliament could have had the opportunity to debate these important measures had the Government accepted the European Scrutiny Committee’s recommendation and held a debate on the Floor of the House. I cannot be convinced that we do not have time to discuss something as important as draft measures to combat terrorism. Members of the public would be surprised that we cannot find the time to debate such matters. We find the time to debate all sorts of issues in Parliament, including on the Floor of the House. I have sometimes felt, particularly in recent weeks, that the Chamber has not been as busy or as focused on the big issues as it should be.

It is not because I have anything against the Minister, or just because I love listening to the Security Minister, but I am disappointed and surprised that the latter is not present, because there are several questions that he needs to answer. In his explanatory memorandum, on the one hand he says that opting into the proposed directive might require “significant changes” to UK domestic law, notably in relation to provisions on the liability of legal persons and extraterritorial jurisdiction, but on the other hand he indicates that only “limited changes” to UK primary legislation would be needed. Which is it? Would opting into the directive require substantial changes to legislation? In which case, what are they and what would we be debating? If not, why the contradiction?

I have already asked the Minister to share the outcome of his analysis of the operational need for the elements of the directive that go beyond the requirements of international and UK law. I hope that he will go away and consider publishing that analysis, so that all Members can scrutinise it. He should also comment on the risk that differences between the legal framework established at EU level and the UK’s domestic law could impede practical co-operation, as we have set out. It would be deeply unfortunate if a party political headache turns into an obstruction to the UK opting into a directive that could bring practical benefits in tackling international terrorism and the specific threat to the United Kingdom.

The difference of opinion among Committee members underlines the importance of holding such debates on the Floor of the House. Plenty of Members, particularly Government Members, would like us withdraw from the EU altogether. I do not agree with that position, but I respect it. Whatever difficulties the Conservative party leadership is currently dealing with, they do not warrant us having such an important debate in Committee, rather than on the Floor of the House, where it should take place.