Crime (Overseas Production Orders) Bill [Lords]

Nick Thomas-Symonds Excerpts

2nd reading: House of Commons
Monday 3rd December 2018 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

The Minister began by saying that he was grateful for the contribution of lawyers during the previous two and a half hours. Alas, I have not had a chance to leave yet, but hopefully that contribution will continue.

[Mr Wallace]

Put the rates up.

[Nick Thomas-Symonds]

I doubt that even I could match the rates of the Attorney General.

As the Minister has explained, the purpose of the Bill is to permit a court in this country to require a person or company located overseas, such as an overseas service provider, to produce stored electronic information, as a court could if the information were located or controlled in the United Kingdom. That will be done via the overseas production order for which clause 1 provides. An order can be operative only if the UK signs a treaty enabling it to be exercised. UK law enforcement authorities will be able to apply for an order that requires the production of electronic evidence for the purpose of investigating or prosecuting crimes such as terrorism offences. At present, if UK law enforcement requires electronic data from another country, it must go via a mutual legal assistance treaty, but that process can be slow to complete.

I very much appreciate and accept that electronic information is crucially important for the investigation and prosecution of criminal offences, and indeed is gaining in importance. The Minister set out the case of Dr Matthew Falder and some of the horrific child sex abuse images found on various websites, and it is clear that having a smooth, fast, efficient process to obtain this information is important, which is why the Opposition support the aim of this Bill; we do need a faster system.

I should also point out that I recognise the particular importance of the United States, first because this is the country where so much of the data is held and so many communication services providers—CSPs—are based, and, secondly, because the UK has been negotiating a bilateral data-sharing agreement with the United States since 2015.

The Minister knows that the Opposition are always happy to work with him in trying to reach consensus on matters, but there are aspects of this Bill about which I and my colleagues in the other place have concerns. First, I say to the Minister that we will be looking in Committee to pursue issues such as bulk data, confidential personal records and non-disclosure requirements.

There are also two other specific points of controversy that I will draw to the Minister’s attention now. The first of them relates to assurances on the use of the death penalty in cases where this country hands over data. The Bill is reciprocal, which allows countries with which a treaty is negotiated to seek a court order for electronic data stored in the UK to be transferred to another country. The current treaty is being negotiated with the US, and US law enforcement could apply via its courts for electronic data in the UK to be used as evidence in a particular case. There are currently 30 states in America that retain the death penalty.

I appreciate the Minister’s efforts to make this a more transparent process than has previously been the case, when Home Secretaries could, in private, make decisions in individual cases that are capital cases about handing over information. My right hon. Friend the shadow Home Secretary asked an urgent question on one issue in this House in July, which was due to a leaked letter from the Home Secretary to the then US Attorney General, Jeff Sessions. In the letter, the Home Secretary stated:

“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.”

The Minister responding to my right hon. Friend stated at the Dispatch Box:

“I can reassure the House that our long-standing position on the use of the death penalty has not changed.”—[Official Report, House of Lords, 24 July 2018; Vol. 792, c. 1612.]

While I accept that the Government cannot control whether another Government provide assurances that are asked for, they can control, where assurances are not forthcoming, whether information will be handed over, and that includes information which could lead to evidence being gathered for use in a court, as well as evidence itself.

My noble Labour colleagues in the other place tabled a strong amendment in this regard which passed by 208 votes to 185 and was added to the Bill. The effect of it is to prevent such handing over of information unless there are assurances that the death penalty will not be imposed. This is important for those of us on these Benches who oppose the death penalty in all its forms and are passionate about human rights here and around the world. Furthermore, while we are, quite rightly, focused on the United States for the reasons I have set out, this Bill could be used, alongside a treaty, as the basis for reciprocal information exchange with other countries around the world where the rule of law is not respected by the regimes in power there, making the need for safeguards in this Bill even more pressing.

Secondly, there is a concern regarding the protection of journalists’ confidential information.

[Sir Edward Davey (Kingston and Surbiton) (LD)]

I agree very much with what the hon. Gentleman has said on the death penalty reassurance point. He will note that the Minister said in his speech that the amendment was somehow defective. Does he agree that if that is so the Minister needs to make his case in detail and put forward another amendment so he can ensure that these death penalty assurances can be given?

[Nick Thomas-Symonds]

The right hon. Gentleman puts his finger on a crucial point. The amendment passed the other place with a comfortable majority, and if it is to be argued that there is, perhaps, a technicality that renders it defective, the Minister must identify it in Committee so the House can on Report at least take a firm view on it.

On the protection of journalists’ confidential information, while the Government have argued that provisions in the Bill match those of the Police and Criminal Evidence Act 1984, there are specific instances where it does not quite match PACE, and I will give a few examples, which no doubt can be explored in Committee.

Under PACE, notice is required in all applications for journalistic material, and there are two types: confidential or “excluded material” and non-confidential or “special procedure material”. However, under clause 12(1) of the Bill, provision is made to notify organisations only when the material is confidential journalistic material:

“An application for an overseas production order must be made on notice if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data.”

An application for non-confidential material—for example, where a journalist made a documentary and had some notes—often facilitates a negotiation process about what data is appropriate to provide to the authorities and offers the right of the media organisation concerned to oppose it formally. The Bill’s failure to make provision for a notification to request non-confidential journalistic material is a concern.

Conditions must be met for the court to grant a production order for special procedure material under PACE, including the following: there are reasonable grounds for believing the material is likely to be of substantial value to the investigation; disclosure is in the public interest; and there are reasonable grounds for believing that the material is likely to be relevant evidence. While clause 4(5) and (6) include both public interest and “substantial value” tests, they do not include a “relevant evidence” test. That is again a matter we will look to pursue in Committee.

Adopting a threshold of what data is “relevant” to an investigation is both necessary and proportionate; as well as helping to enable clarity and consistency in cases, it is in line with human rights principles. Judges considering these applications will be familiar with the application of these recognised legal standards, and it would be a simple and sensible safeguard to bring these provisions in line with those under PACE.

Under PACE, tests are only limited to “investigations”, while the Bill is worded in such a way that the tests could be applied to include investigations and proceedings. It is not clear why this should be required right up to trial.

There is a further concern with regard to protection for “excluded material”, or journalistic material that is held subject to a duty of confidence. Under PACE, “excluded material” has a different set of conditions that need to be met. Why should that be different in this Bill?

Journalists play a fundamental role in holding those in power to account, and we must ensure that this legislation does not in any way suppress investigative journalism or the exposure of public interest matters. Thus while the Opposition do not oppose the Bill’s purpose and welcome measures for the speedy exchange of electronic data, we will be looking to put safeguards into the Bill on handing over information, to protect the clear will of the other place with regard to the death penalty assurances and to protect the long-cherished principle of confidentiality of journalists’ sources.

--- Later in debate ---

[Nick Thomas-Symonds]

With the leave of the House, I will briefly respond to the debate. The hon. Member for Sleaford and North Hykeham (Dr Johnson) put her finger on it when she said that any measure that prevents one more child from suffering must be a laudable one, and she is absolutely right. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) and I often find ourselves working together on such Bills, and I look forward to working with him once again in Committee. He is right to raise the issue of journalists who have material that is sensitive but not necessarily confidential, which is clearly an issue to consider in Committee.

I commend the hon. Member for Chelmsford (Vicky Ford) for the work she has done in taking down horrific images from the internet through her work with the Internet Watch Foundation. I say to the right hon. Member for Kingston and Surbiton (Sir Edward Davey) that there is no difference of principle in opposition to the death penalty. I appreciate that there is an argument about other treaties, but there will also be an argument about what is within the scope of the Bill. We should do our best, on a joint basis, to protect the gain that has been made in the Lords, and I look forward to working with his party on that at later stages.

All I say to the Minister is that I hope we can proceed by working together, as we have on previous Bills. As the Bill goes into Committee, we will now be looking carefully at the issue of data access being proportionate and necessary, the issue of confidentiality and journalists’ sources and the vital issue of death penalty assurances.

Draft Investigatory Powers Tribunal Rules 2018

Nick Thomas-Symonds Excerpts

Tuesday 20th November 2018 General Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship, Sir David. I am grateful to the Minister for setting out the position in the way he has. The Opposition welcome the work to update the tribunal. Through its work of investigating and determining complaints that allege that public authorities have used covert techniques unlawfully and infringed the right to privacy, as well as complaints against the security and intelligence services for conduct that breaches human rights, the tribunal is a fundamental part of the framework in this area.

The approach that I always take is that strong powers must be accompanied by strong safeguards. Taken together, I believe that the updated rules will provide us with greater reassurance that justice is both done and seen to be done in the tribunal, and that they will allow for a greater degree of transparency. I make it clear that the Opposition do not oppose the draft rules, and I am grateful to those who responded to the six-week consultation.

As the Minister set out, the rules are essentially being updated to amend the powers that can be exercised by a single tribunal member; implement a process for cases in which a respondent refuses to consent to a disclosure that the tribunal believes is necessary; reflect the practice that hearings are to be held in the open where possible, which is to be welcomed; and set out a list, which I appreciate is non-exhaustive, of the functions that the tribunal may ask its counsel to perform—another important aspect.

I ask the Minister to clarify one point. I understand that 17 amendments were proposed in response to the consultation, of which five have been accepted and incorporated into the rules. First, the function of a single tribunal member to decide on preliminary issues is being removed. Secondly, the tribunal is being given a power in respect of what can be relied upon in circumstances where a problem arises regarding disclosure. Thirdly, in circumstances in which an arguable error of law is identified by the counsel to the tribunal, the counsel must notify the tribunal, which must disclose it to the complainant. Fourthly, where the tribunal makes a determination that is not in favour of the complainant, it must provide a summary of the determination—a change that is to be welcomed in the interests of justice. Finally, the rules will remove the requirement for an application for leave to appeal to state the ground of appeal where there has already been a notification by counsel of an arguable error of law. Those measures are all welcome, but I ask the Minister to clarify why those five amendments have been incorporated, while the other 12 have not.

Oral Answers to Questions

Nick Thomas-Symonds Excerpts

Monday 29th October 2018 Commons Chamber

[The Minister for Policing and the Fire Service (Mr Nick Hurd)]

As a London MP, I am absolutely delighted that moped crime is down by around 50% from its terrible peak. That is the result not only of superb police action but of the work convened by the Home Office that has brought together Government, industry and civil society to bear down on the problem. So pleased are we with that work that we taking the model forward to tackle vehicle crime.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I thank Max Hill QC for his work as the reviewer of counter-terror legislation—a role that he left on 12 October to become the Director of Public Prosecutions. Given that his departure was announced on 24 July, why has no successor been appointed and the post been left vacant with counter-terror legislation going through Parliament? What on earth is the Home Office excuse for this sheer negligence?

[Sajid Javid]

We are about to start the process for appointing Max Hill’s successor. To suggest that that has held back progress on counter-terrorism would be completely incorrect. The new counter-terrorism strategy was launched just a few months ago and sets out how seriously the Government take the issue.

Draft Data Retention and Acquistion Regulations 2018

Nick Thomas-Symonds Excerpts

Monday 15th October 2018 General Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Graham; I thank the Minister for the information he has shared with the Opposition regarding this statutory instrument.

Following the ruling of the European Court that the Investigatory Powers Act 2016 was incompatible with European law, the Opposition welcome this instrument, which brings the legislation into line with that European law, together with the code of practice. We have accepted the ability of particular public authorities, including law enforcement and intelligence agencies, to have access to communications data, and we recognise that that can often be vital to ensuring public safety and national security. The proposed changes to the legislation and the code of practice would refine these data retention and acquisition regulations in two major ways: first, as the Minister has set out, by introducing an independent administrator who can authorise the use of these powers, and secondly, by,

“restricting the crime purpose for acquiring retained communications data to serious crime”,

making the use of this power proportionate to the crime being investigated. We in the Opposition support strong powers and strong safeguards, and we welcome the refinement of this legislation.

While the Opposition are not opposed to these changes, I seek clarification from the Minister on one point. The divisional court has required that the Government make legislative changes to bring the Data Retention and Acquisition Regulations in line with European law by 1 November 2018. While I understand that the proposed serious crime threshold will take effect in November 2018, the Government have stated in their explanatory memorandum that,

“the associated requirements for independent authorisation”,

will come into force from April 2019, six months after the deadline set by the court. The information provided by the Government cites complexity of implementation as the reason for that six-month delay, but I wonder whether the Minister can offer further clarification on the reasons.

As I have stated, the Opposition do not plan to oppose these changes, although I note that my former colleague, now the Mayor of Greater Manchester, Andy Burnham, warned the Government in June 2016, when the Investigatory Powers Bill was being debated, that the threshold had to be a precise one. He said that,

“we must…legislate to put in place a very precise threshold, so that the circumstances in which those data can be accessed are explicitly clear…we need a very clear definition of what level of crime permits the authorities to access those records.”—[Official Report, 7 June 2016; Vol. 611, c. 1121.]

I am pleased that the Government have made the reasonable adjustments required to this legislation, so that that balance can now be appropriately struck.

Police: Financial Sustainability

Nick Thomas-Symonds Excerpts

Wednesday 12th September 2018 Commons Chamber

[Mr Hurd]

First, I should make it clear that I did not speak just to police leaders. Whenever I visit a force I make a point of speaking to frontline officers, and through those conversations I gained a very clear picture of the stretch and pressure that they are experiencing.

The right hon. Lady asked me to confirm that police budgets had been reduced since 2010, and asked whether we had fewer police officers. The numbers do not lie: the numbers are very clear. They are hardly news. What the right hon. Lady omitted to mention, of course, was the underlying driver of the decisions that were made in 2010. The state of the public finances that we inherited from the previous Government led to the radical action that was needed.

[Nick Thomas-Symonds (Torfaen) (Lab)]

That is desperate.

[Mr Hurd]

It is not desperate. Those are the stark economic facts that the coalition Government faced in 2010. There was a need to take radical action to return the public finances to some sort of order. That is an uncomfortable truth about which the Labour party remains in denial.

[Nick Thomas-Symonds]

Rubbish.

[Mr Hurd]

It is not rubbish. [Hon. Members: “Yes, it is.”] The state of the public finances is a matter of absolute record.

I welcome the right hon. Lady’s recognition that traditional crime continues to decrease. Of course we are all concerned about the clear increase in serious violent crime, and we have faced up to it in clear statements of our determination to get on top of it, not just with words but with actions through the Serious Violence Strategy, which has been welcomed by the police and which is supported by funding.

The right hon. Lady said that forces were struggling to manage demand. It is absolutely true that some of them are, but we do not need the National Audit Office to tell us that; the HMIC reports on effectiveness make the point very plainly. We are working with those forces. We should reject any groupthink that suggests that this is just an issue of financial resources, although they are clearly important. Police leaders recognise that there is considerable scope for improvement in the way in which police time and demand are managed. HMIC has made that point very clearly, and has taken an initiative that we support in requiring force management statements in which police forces must explain their view of future demand and how they intend to manage it.

The right hon. Lady asked what the Government were going to do. I will tell her exactly what we are doing, and exactly what the Home Secretary said yesterday to the police superintendents. We will continue to support the police, and we have put more money into the police system. The Home Secretary has made it very clear that police funding is a priority for him, and we are working closely with the police in preparing for the comprehensive spending review. There needs to be a strong evidence base in respect of demand and resilience, and it is exactly that work that we are putting together. The Government attach the highest priority to public safety, and to ensuring that our police system has the support that it needs.

Salisbury Incident

Nick Thomas-Symonds Excerpts

Wednesday 12th September 2018 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

I thank the Security Minister for the way he has opened the debate.

The Prime Minister said on 5 September:

“based on a body of intelligence, the Government have concluded that the two individuals named by the police and CPS are officers from the Russian military intelligence service, also known as the GRU. The GRU is a highly disciplined organisation with a well-established chain of command, so this was not a rogue operation. It was almost certainly also approved outside the GRU at a senior level of the Russian state.”—[Official Report, 5 September 2018; Vol. 646, c. 168.]

The Opposition accept that analysis. I know that the shadow Home Secretary is grateful for the briefing given by the Security Minister on Privy Council terms earlier this week.

[Mr Seely]

I thank the hon. Gentleman for his generosity on that point. He says that the Opposition now accept that, but—this goes back to a point made by the shadow Home Secretary—they did not at the time. The Opposition were specifically putting out lines that were very similar to those being put out by the Russian state at the time.

[Nick Thomas-Symonds]

I totally reject the suggestion that we were somehow putting out lines similar to those of the Russian state. With regard to implications that the hon. Gentleman is trying to make about the Leader of the Opposition, I have looked carefully at what the Leader of the Opposition and his spokesperson have said about this in recent weeks, and it is pretty clear. His spokesperson has said:

“very strong evidence points to Russian state culpability, and obviously Jeremy condemns the Russian state for that culpability.”

How much clearer could that be? The Leader of the Opposition said on 26 March:

“Based on the analysis conducted by Government scientists, there can be little doubt that the nerve agent used in this attack was military-grade Novichok of a type manufactured by Russia.”—[Official Report, 26 March 2018; Vol. 638, c. 559.]

He said on 5 September:

“The use of military nerve agents on the streets of Britain is an outrage and beyond reckless.”

He also said:

“No Government anywhere can or should put itself above international law. The Prime Minister previously outlined that the type of nerve agent used was identified as having been manufactured in Russia. The use of this nerve agent is a clear violation of the chemical weapons convention and, therefore, a breach of international law.”—[Official Report, 5 September 2018; Vol. 646, c. 170-171.]

[Neil O'Brien (Harborough) (Con)]

I wonder whether the hon. Gentleman believes it was sensible to suggest that we send a sample of this material to Russia, as if Russia would receive it and say, “Oh yes, it’s a fair cop—this is one of ours. We did it.”

[Nick Thomas-Symonds]

What is an entirely sensible suggestion is to follow the procedure set out by the OPCW, and in doing it ourselves and by ourselves adhering to those rules, we are setting an example to the rest of the world about how to deal with the suspected use of chemical weapons.

[James Heappey]

Will the hon. Gentleman give way?

[Nick Thomas-Symonds]

I will give way once more, and then I need to make some progress.

[James Heappey]

I am grateful to the hon. Gentleman for giving way and for setting out so clearly the views of the Front Benchers of Her Majesty’s Opposition. Would he like to take this opportunity to point out that the hon. Member for Derby North (Chris Williamson) is clearly saying something with which nobody on the Opposition Front Bench agrees and that his views are very much alien to Labour party policy?

[Nick Thomas-Symonds]

My hon. Friend the Member for Derby North (Chris Williamson) is not a shadow Front Bencher, the last time I checked. It is up to Back Benchers on both sides of the House to put their views as they see fit—[Interruption.] Looking at the Back Benches today, I look forward to the contribution of my hon. Friend the Member for Aberavon (Stephen Kinnock).

On 4 March, Sergei Skripal and his daughter Yulia were admitted to hospital after emergency services responded to reports of them both being in an extremely serious condition. Mr Skripal and his daughter were left hospitalised for weeks. Detective Sergeant Nick Bailey also fell ill after attending the incident, and all three were later discharged from hospital. I pay tribute to Detective Sergeant Bailey for his fortitude and endurance in undergoing medical treatment. I also pay tribute to all the staff at the Salisbury District Hospital. The hon. Member for Salisbury (John Glen) is in his place. I hope that he will pass that on and pass on the gratitude of both sides of the House for what the staff did in those very difficult weeks.

The Prime Minister confirmed that the poisoning agent used on the Skripals was part of a group of nerve agents known as Novichok. A further 48 individuals were also assessed in hospital in relation to the incident. We of course also think of all of them and of what they went through at that time.

Four months later, on 30 June, Charlie Rowley and Dawn Sturgess were also admitted to hospital, having been found unwell at a property in Amesbury. This only goes to show the abomination of using nerve agents in this way. They cannot be targeted. They leave a trail. Clearly, that is what seems to have happened in the case of Charlie Rowley and Dawn Sturgess.

Having been admitted to hospital in a critical condition, Dawn Sturgess sadly died on 8 July, making her the only victim to have died as a result of exposure to this deadly nerve agent. The thoughts of everyone in this House are with her family and friends. I think we would all agree that a needless death has occurred on the streets of this country. After her death, a formal murder inquiry was launched. In July, the Home Secretary confirmed that tests at Porton Down confirmed that both Mr Rowley and Ms Sturgess were poisoned by the same type of Novichok substance used to poison the Skripals. As I have already said clearly, and as the Prime Minister has set out, strong evidence points towards direct Russian culpability and we condemn the Russian state for that culpability.

I want to say a word about the police and the intelligence services. With 1,400 statements and more than 11,000 hours of CCTV—and a report from the OPCW that I mentioned in response to an intervention—we commend the police, the security services and the UK’s colleagues at the OPCW, as well as the people of Salisbury, for their patience, co-operation and fortitude in these very difficult circumstances. Following consideration of that evidence, the Crown Prosecution Service and Scotland Yard announced on 5 September that sufficient evidence had been collected to charge two Russian nationals, Alexander Petrov and Ruslan Boshirov. I choose my words very carefully as I refer to those two individual suspects. In her statement to the House on 5 September, the Prime Minister also stated that the same two men are the prime suspects in the case of Dawn Sturgess and Charlie Rowley.

We understand, as the Security Minister has set out, that on 2 March those two men travelled from Moscow to London on Russian passports. Two days later, the nerve agent Novichok was sprayed on the front door of the Skripals’ home in Salisbury, Wiltshire, and it seems that the individuals returned to Russia the same day. The police believe the pair arrived at Gatwick and stayed in the City Stay hotel in Bow Road, east London. It is believed, as the Security Minister has set out, that a modified perfume bottle was used to bring the nerve agent into this country and to spray the door. It appears that Dawn Sturgess and Charlie Rowley were later exposed after handling a contaminated container.

The Prime Minister has indicated that, although there is no extradition treaty in place with Russia, as has already been mentioned in this debate, she has none the less issued an Interpol red notice and taken advantage of the European arrest warrant. The Security Minister and I debated this in the context of the Counter-Terrorism and Border Security Bill last night. We of course all hope that, after 29 March 2019, the European arrest warrant will still be valid and that the Government will have negotiated a position where that is the case.

The attack in Salisbury was an appalling act of violence. Nerve agents are abominable in any war and it is utterly reckless to have used them in a civilian environment in this way. In the words of the shadow Home Secretary in July:

“We cannot allow the streets of ordinary British towns and communities to become killing fields for state actors.”—[Official Report, 5 July 2018; Vol. 644, c. 537.]

The Security Minister has already set out the behaviour of the Russian state during the course of the investigation. Russia has consistently failed to answer the questions put to it by the international community. It has responded with obstinacy and mocking, which I suggest demonstrates a lack of respect for the gravitas of this situation. The language it has used is not the language of a state dedicated to helping to shed light on the events that have happened.

The use of this agent on the streets of Britain is shocking. The exposure to military grade nerve agents by a foreign state is a reckless, dangerous and egregious breach of international law. Opposition Members believe that it is incumbent on all states to act within international law and with respect for human rights.

[Mr Wallace]

I recognise the point that the hon. Gentleman made about condemning the Russian Government. I would like to put on record the last statement by the Leader of the Opposition in his response to the statement last week, which was an opportunity to condemn the Russian state. I have just reread the response. There is condemnation about the act and the reckless use of a nerve agent and so on, but the closest I can find to a condemnation of the Government of Russia is the final line, which says that

“we will support any reasonable action to bring those responsible to justice and to take further action against Russia for its failure to co-operate with this investigation.”—[Official Report, 5 September 2018; Vol. 646, c. 172.]

What I do not see is a condemnation of the Russian Government for this act in Salisbury. I ask the hon. Gentleman to make it clear that it is his party’s position and his leader’s position that they condemn the Government of Russia for this act.

[Nick Thomas-Symonds]

I am quite happy to do that. When I set out the statements by the Leader of the Opposition, I was quoting both his words following the Prime Minister’s statement and indeed what his spokesperson said on his behalf. I will read again—I have already read it once to the House—what the Leader of the Opposition’s spokesperson said on 6 September, the day after the Hansard extract to which the Security Minister referred:

“It’s clear now that very strong evidence points to Russian state culpability, and obviously Jeremy condemns the Russian state for that culpability.”

It could not be any clearer. That is what my right hon. Friend said through his spokesperson. There it is.

[Mr Wallace]

He could have said it in the statement.

[Nick Thomas-Symonds]

Well, that is the position. I have read out the position pretty clearly. It is the second time I have done so. I say to the Security Minister: we worked in a consensual way on the Counter-Terrorism and Border Security Bill and I hope that we can continue to do that in our response to this terrible incident and send out a very clear message that we are united in the measures that need to be taken to keep our country safe.

The expulsion of the diplomats has already been mentioned in the discussion in this House. They were identified by the Prime Minister as undeclared intelligence officers. This also led to the amendment of the Sanctions and Anti-Money Laundering Bill that—

[Stephen Kinnock]

rose—

[Nick Thomas-Symonds]

I give way to my hon. Friend.

[Stephen Kinnock]

Continue, Sir. You are just gearing up.

[Nick Thomas-Symonds]

I am grateful to my hon. Friend. I will continue the point.

There are increasing checks on private flights, customs and freight, and the development of new legislation to tackle hostile state activity. The Security Minister will be aware that we have been discussing that throughout the passage of the Counter-Terrorism and Border Security Bill. Indeed, I and the shadow Home Secretary both voted in favour of the Bill on Third Reading last night. As the Security Minister well knows, we of course have reservations about a number of things—some of them we have resolved, and some I hope to resolve before the Bill appears in the other place—but both I and the shadow Home Secretary voted in favour of the principle of updating our laws and of providing protections against hostile state activity. I will come back to some of those measures.

[Stephen Kinnock]

rose—

[Nick Thomas-Symonds]

I give way to my hon. Friend.

[Stephen Kinnock]

If my hon. Friend is not going to say more about the Magnitsky amendment—[Interruption.] As he will be saying more about it, I will allow him to continue.

[Nick Thomas-Symonds]

The suspense as I wait for my hon. Friend’s intervention is starting to overwhelm me, but I will continue.

The Opposition are of course pleased with the solidarity that has been forthcoming from the international community and with the action taken in support of the UK position. I again make it clear that we on these Benches will back any further reasonable and effective action—whether against Russia as a state or the GRU as an organisation. I now turn to those actions.

Following the poisoning of the Skripals, the Prime Minister promised in March to develop new legislative powers to harden defences against hostile state activity. The amendments, clauses and schedules to the Counter-Terrorism and Border Security Bill make particular provision on that. The Opposition believe in strong powers and strong safeguards, and we have sought to ensure that they are included during the passage of the Bill. The powers are now there. I hope and trust that they will go through the other place, come back to this House and get on to the statute book later in the year so that they can be used to deal with these types of situations.

In her September statement, the Prime Minister confirmed that, in addition to those border powers, the G7 have agreed to share intelligence pertaining to hostile state activity via a rapid response mechanism; that the EU has agreed a package to tackle hybrid threats; and that NATO has strengthened its collective deterrence via a new cyber-operations centre.

Cyber is obviously an important part of how we deal with this issue. I have visited GCHQ and seen some of the work that goes on. The Opposition will continue to make the case for that work to be appropriately funded and that the capacity must be there to act as we need to. America has also announced additional sanctions against Russia in the light of the Salisbury attack, and, as I said a moment ago, support from the international community to back UK action is welcome on both sides of the House.

I turn to the Magnitsky amendment and other issues. In March, the shadow Chancellor talked about the need to tackle the “global laundromat” operation, in which immense sums of money obtained from criminal activity are laundered here. The Security Minister made the point, which I totally accept, that the money may well have been cleaned before it arrives on these shores. None the less, we have to do all we can to implement the measures that have been identified. We are pleased that the Government accepted the Magnitsky amendment; it is important to have the powers to seize assets when we believe that there is a situation with a corrupt foreign official or other matters that require action.

The Security Minister also spoke, on the radio earlier this week, about unexplained wealth orders, which are an important part of our weaponry. He is indefatigable and will be here to wind up as well as having opened this debate. Will he clarify how many unexplained wealth orders have been used so far, whether they have been used specifically in respect of Russian nationals and the extent to which he intends to press their use in future?

[Stephen Kinnock]

The action being taken on money laundering is, of course, very important. However, the Magnitsky amendment relates specifically to violations of human rights. I urge my hon. Friend to take this opportunity to ask the Minister to accept, during his winding-up speech—on the record, from the Dispatch Box—that there is no reason whatever why the United Kingdom cannot take unilateral national action on the basis of the Magnitsky amendment.

Clearly, we would like action to be taken at an EU-wide level, but the fact that Latvia, Lithuania and Estonia have all taken unilateral action, implementing their Magnitsky legislation, clearly demonstrates that there is no reason why the United Kingdom cannot do the same. Could we have an explanation of why EU membership has been used as an excuse for total inaction—it is now four months since the Magnitsky amendment was passed? The Government could simply take the list of Russian citizens who have been sanctioned by those other countries under their Magnitsky legislation and use that as a starting point.

--- Later in debate ---

[Nick Thomas-Symonds]

My hon. Friend asks a sensible question and then makes a sensible, practical suggestion about what the Government could do. The Security Minister has heard the point made by my hon. Friend, who made the same point in an intervention on the Minister. If the Minister addressed that issue during his winding-up speech, that would be useful for both sides of the House.

If the Baltic states that my hon. Friend referred to are able as EU members to take unilateral action, why does the Security Minister feel that the UK cannot follow suit? Also, if action has already been taken by EU member states against specific individuals, why can the UK not do the same? If the Minister addressed that in his closing speech, that would be welcome on both sides of the House.

I turn to Wiltshire police, the local police force. It is estimated that the response to the Salisbury attack has involved more than £7 million in additional costs alone for the force; the figure may be higher than that. I understand that the Government have offered some additional sums to cover the costs—I have seen the figure of £1.6 million—but do they propose to offer any additional money beyond that to Wiltshire police?

The Opposition have always said that we cannot have security on the cheap. The Security Minister often refers to the counter-terror budget, but the reality is that we cannot see that in isolation. When terror incidents happen on our streets, they always draw in mainstream policing resources.

[Mr Jim Cunningham (Coventry South) (Lab)]

The most important factor in anti-terror policing is local intelligence, which often helps the police to do their job better. To help to facilitate that local intelligence they need funding, but we all know that police forces are underfunded. What does my hon. Friend think about that?

[Nick Thomas-Symonds]

My hon. Friend is absolutely right. Community police are the eyes and ears for our intelligence about what is going on in our streets. Cutting 21,000 police officers clearly has an impact on capacity. I urge the Minister to speak to the police Minister and the Chancellor of the Exchequer. Prior to this debate, there was an urgent question in which the issue of police numbers was repeatedly raised on both the Opposition and Government sides of the House. I urge the Security Minister to press the Chancellor for more money for our overstretched police.

I have set out that we will back any further reasonable and effective actions, either against the Russian state or the GRU as an organisation. I should also say that we have no quarrel with the Russian people—of course we do not. Many questions, however, need answers, and those answers can come only from the highest echelons of the Russian state.

Counter-Terrorism and Border Security Bill

Nick Thomas-Symonds Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 11th September 2018 Commons Chamber

[Mr Wallace]

The hon. Member for Torfaen is absolutely right; it is set out quite clearly in the 2000 Act. The reasonable excuse defence is a good defence. It will cover journalists and academics, which is important. It would also mean that the prosecution is unlikely to commence in those circumstances, because it would not pass the Crown Prosecution Service threshold test of being in the public interest and of there being a realistic prospect of conviction. The police and the CPS are rightly focused on those who pose a genuine threat, and they have no interest in wasting their valuable time investigating and prosecuting people who pose no threat, where there is no public interest and no prospect of conviction.

Amendment 3 expands the offence of viewing information likely to be useful to a terrorist, so that it also includes otherwise accessing such material through the internet. This is simply intended to ensure that the offence captures non-visual means of accessing information such as audio recordings, in addition to video, written information or other material that can be viewed.

The Government recognise the sensitivities of the issues and the need to ensure proportionality and to provide appropriate safeguards, and we have been open to exploring how clause 3 can be improved to do so in a clearer and more certain way. But we make no apologies for sending a clear message that it is unacceptable to view or stream such serious and harmful terrorist material without a reasonable excuse, nor for having in place robust penalties for those who abuse modern online technology to do so. We consider that clause 3, as amended, is both proportionate and necessary to allow the police to take action to protect the public from potentially very serious threats.

Government amendment 5 responds to the oral evidence heard by the Public Bill Committee about the maximum penalty for the offence of failure to disclose information about acts of terrorism. Section 38B of the Terrorism Act 2000 makes it an offence to fail to disclose to the police information that might be of material assistance in preventing an act of terrorism or in securing the apprehension, prosecution or conviction of a terrorists. This offence might apply in a case where a person, not themselves a terrorist, knows that a family member or a friend is planning or has committed an act of terrorism and fails to inform the police. In his evidence to the Committee, the independent reviewer of terrorism legislation, Max Hill QC, argued that the maximum penalty for this offence is too low and should be increased. Having considered the issue further in the light of recent cases, we agree. Those who know that others are engaging in, or planning, terrorist activity have a clear duty to inform the police about such actions. Where people do have information about attack planning or other terrorist activity and they fail to inform the police, it is right that we have appropriately stringent sentencing options in place. An increase in the maximum penalty from five to 10 years’ imprisonment will send a clear signal about the seriousness of this offence.

This group of amendments also includes amendment 13, in the name of the hon. Member for Torfaen, which seeks to provide for an independent review of the Prevent programme. I shall wait to hear what he has to say about that amendment.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I am grateful to the Minister for setting out the designated area offence.

Before I turn to that, I join entirely with the Minister in his opening remarks marking the anniversary today of the terrible attacks on the twin towers on 9/11 in 2001, and indeed his remarks about the inquest on the Westminster bridge attack. We all join together in paying tribute to our emergency services, to the first responders in the United States and to all the families who were affected by those terrible events. Of course, as we debate this legislation today, we bear in mind that experience, and indeed the experience of other terror attacks.

I am pleased by and accept what the Minister said in apology for the late arrival of this new clause. I am sure he will appreciate that it was disappointing that we were not able to subject it to scrutiny in Committee, because it would obviously have been more useful had we been able to do so. Of course, that does not mean that we will not want to put it to scrutiny in the other place, and we certainly will do that, but I would have liked to have been a position to give it more scrutiny before today. None the less, I accept that, as legislators, we have to look to deal with the threat that foreign fighters pose to this country when they return, and I am not proposing that the Opposition oppose this measure. However imperfect legislation can be, the rule of law is paramount. If we ever sacrifice the rule of law—if we undermine our own values in dealing with those who seek to destroy them—then we lower ourselves to the level of their barbarism.

I am pleased that, in dealing with this, the Minister has rejected calls to update the law of treason, which, after all, reached our statute book in 1351, has not been used since 1945, and was meant for a different age. We are also pleased that the Minister has rejected calls simply to dole out justice summarily and arbitrarily, which would undermine the rule of law. Unfortunately, other members of the Government—not least the Defence Secretary, I am afraid, last December—have previously suggested that. I am glad that those courses for dealing with this have clearly been rejected by the Minister.

As the Minister set out, new clause 2 designates in a statutory instrument laid before Parliament an area for the purpose of protecting members of the public from terrorism. In a letter to me, the Minister made it clear that such a statutory instrument would be introduced via the affirmative procedure, so that whenever an area was to be designated, it would be done on the Floor of the House. I hope he can confirm that that will be the case.

As the new clause sets out,

“It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for entering, or remaining in, the designated area.”

That reasonable excuse defence will be an extremely important safeguard. I also draw attention to what Max Hill QC, the current independent reviewer of terrorism legislation, said in October 2017:

“those who travelled out of a sense of naivety, possibly with some brainwashing along the way, possibly in their mid-teens and who return in a state of utter disillusionment…we have to leave space for those individuals to be diverted away from the criminal courts.”

Prosecutorial discretion and whether prosecution is in the public interest will, of course, be vital in this area.

While it is essential to deal with this matter by legislation, we will want to look at it in more detail, particularly in the other place. I welcome what the Minister said about being willing to work constructively on this, as he has on other parts of the Bill. We clearly cannot guarantee where future conflicts will take place, but we have to be prepared for those eventualities. We will want to look at the mechanism by which the Home Secretary designates these areas and ensure that we have appropriate safeguards. I am sure that nobody in this House would want to discourage aid workers and other people who we want to be in these areas from going to them. That clearly is not the intention of this law, and we will have to look at how we can ensure that that is the case.

I turn to the issue of seizing flags. In evidence to the Committee, Assistant Commissioner Basu mentioned the absence of this power from the Bill. I have looked carefully at amendment 1, and I am grateful to the Minister for his briefing on the context of how this power will be used. The issue of the sensitivity with regard to Northern Ireland was raised in interventions on the Minister. I am grateful to hear that he has been in contact with the Police Service of Northern Ireland, and I hope that that will continue.

At present, the issue is that police can only seize material with an arrest at the scene. Amendment 1 allows material to be seized where notice is given of a summons—in other words, the person does not have to be arrested at the scene, and a summons can follow within the prescribed six-month period. The person will still have to appear in court, but there will not have been an arrest at the scene. There is a suggestion of the power being used where there is not quite enough evidence to arrest someone at the scene, but I suspect that that would be extraordinarily rare in practice, because if a flag is in support of a proscribed organisation, it is difficult to see how someone would not be committing a criminal offence in those circumstances.

I tend to see this amendment in terms of how large protests will be managed. This power provides police at the scene with an additional option. It may well be the case that trying to arrest someone at the scene can either cause a public order problem or exacerbate one, and the summons method might be easier. It is not, of course, for us to comment on an operational matter. That would have to be a judgment of the police officer at the scene, but we can set out the framework. I expect that we will have to review how the power works in practice, but it is not my intention to oppose the amendment in principle.

I turn to the Government amendments on the three clicks offence, which has been raised in interventions on the Minister. I raised a number of concerns about this in Committee and tabled a total of five amendments on it. First, let me say that I understand why the law needs to be updated in this area. It was designed for a different internet age, when people tended to download content and watch it. It does not cover those who stream it, and clearly it must cover those who do so. The difficulty in my view is that the three clicks approach simply creates more problems than it solves, and I am grateful to the Minister for listening in that regard.

--- Later in debate ---

[Mr John Hayes (South Holland and The Deepings) (Con)]

I hear what the hon. Gentleman says about Prevent, and welcome his warm support for its principles. I am glad that he has been to see its programmes, as I did when I was Minister for Security. He makes a useful point about the oversight of Prevent and about measuring the implementation of the Prevent duty. He will remember that we introduced that duty when I was the Minister. The duty affects a wide range of organisations, but the evidence suggests that its effectiveness varies across them. It would seem to be useful to take a look at that, but I would not call that a wholesale review; rather it is measuring its effect.

[Nick Thomas-Symonds]

I am grateful to the right hon. Gentleman for his intervention. I know the work that he did in this area. I have seen the Prevent duty in operation, both on visits as a shadow Minister and in my constituency, as it happens. I appreciate his point about whether a statutory review is justified. Clearly, we are talking about an aspect that could be taken into account in a statutory review, but wider issues to which I have already referred could also be taken into account. A statutory review would give us the opportunity to re-evaluate the programme fully, to look at those communities that have lost confidence in it and why, and to improve our ability to tackle counter-terrorism.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

I will speak about new clause 2 and the context in which it has been brought forward. The first responsibility of any Government is always to protect their citizens, and as the threats to our country evolve, so must our laws. In a speech on 17 October 2017, Andrew Parker, the director general of MI5, described the ongoing terrorist threat as

“multi-dimensional, evolving rapidly and operating at a scale and pace we’ve not seen before.”

The threat posed by terrorists and malicious actors is not going away—far from it. Last year, there was an increase of 58% in the number of arrests for terrorism-related offences. The threat is increasing and new clauses will be required to combat it.

Members have alluded to the fact that today is 11 September. No doubt we all remember where we were on this day in 2001 during the attack on the United States. I was on the wards in my first job as a hospital doctor. I was looking after an old lady who was watching television, and from behind her, I saw on the screen the aeroplane fly into the first tower.

We were all here last year when Westminster was attacked. People were tragically killed and PC Palmer gave his life protecting this House and protecting us. As we debate this topic today, we will be remembering those who were injured in those attacks and the good work and bravery of the police and the other emergency services who protect us. Every day when we come to work, the Annunciator reminds us that the threat level is “severe”. It has been severe continually for at least the past four years. This means that at any given time an attack is considered to be highly likely. As I said, it is our first duty to protect the citizens of the country. It is important, in a free and democratic country, that we do that in a way that is both proportionate and effective.

On declared areas, my understanding is that there is a significant precedent in Australia, where a specific law states that it is a criminal offence for people to go to an area. I understand that it has been used on three separate occasions in Australia, where, as is proposed here, the maximum sentence is 10 years imprisonment. That is understandable, given what the Security Minister has said, which is that 400 people who have returned to this country are believed to have been active in fighting abroad.

--- Later in debate ---

[Sir Edward Davey]

Across the House, we share a determination to tackle terrorism. Seventeen years ago today, I was visiting my grandmother. She was watching the television and she showed me what was happening in the appalling attacks in the United States. We in this House also know about the atrocities that happened just 100 yards away on Westminster Bridge recently. So we all want to ensure that we can do whatever we can to keep our people safe and to fight against the scourge of international terrorism. The question tonight, however, is whether the new clause and the new Government amendments will help to protect us. We have seen a huge number of laws added to the statute book, quite rightly, to help us and our security services in the attack that we are making on terrorism and in the fight back, but I am not yet convinced that this new clause and these amendments will add to the successful work that has been going on.

I say to the Minister that I reach that conclusion reluctantly, but I should like to put forward my arguments, because I am not alone in this. Skilled independent commentators have reached a similar judgment to the one that I have reluctantly reached. My first argument in relation to new clause 2 is that it is not needed. Clause 5, with which we agree, will quite rightly expand extraterritorial jurisdiction. We have seen this before, and clause 5 takes those measures further to ensure that terrorist offences committed abroad can be prosecuted in the United Kingdom. That is sensible stuff. New clause 2 wants to go further, however. Rather than being primarily concerned with terrorist acts abroad, it seeks to criminalise the whole concept of going abroad. In other words, it is not about the actions of a person but about locations.

The Minister, in his usual rational way, tried to reassure us that this was not meant to apply to aid workers or journalists, and I presume that it would not apply to people who wanted to visit sick relatives and who might even risk going to a war-torn country to do so. He referred to proposed new subsection 58B(2), which is found in new clause 2, which offers that defence, but the way I read it, the person charged will have to prove that they had a reasonable excuse for entering a designated area. That is not quite what the Minister said at the Dispatch Box, and although I did not intervene at the time, I do not think that people will be innocent until proven guilty, and that should worry the House.

The other issue is one of common sense. If a terrorist or freedom fighter who has returned is accused of going to such an area, they could no doubt make a reasonable excuse defence. They could say that they were an aid worker, and the Government would then still have to prove that they have evidence that the person was doing something wrong and was not an aid worker. I am not absolutely convinced that the Government have got this right, and I will go on to quote the former independent reviewer of terrorism legislation, David Anderson QC, who supports my view.

[Nick Thomas-Symonds]

There are obviously concerns about new clause 2 that we will have to consider in the other place; it is a shame that it arrived late. As for the idea of the reverse burden, under section 118 of the Terrorism Act 2000 a defendant has to raise it and then it is up to the prosecution to disprove it.

[Sir Edward Davey]

I am just going by what the Minister has tabled today.

David Anderson, the former independent reviewer of terrorism legislation, said in 2016 of a very similar proposal that

“this offence would not be worthwhile for the UK.”

He also complained about the burden of proof being

“on the honest and worthy to show entry into the prohibited area for a legitimate purpose.”

He said that foreign terrorist fighters

“will also cite aid purposes, so the ultimate burden of proof will still demand evidence not just of presence but also of training, logistical support, or involvement in fighting”

and went on to argue that such activities are of course already covered by the law. He also looked at the practical problems, referring to the fluidity of the

“area controlled by Islamic State (Daesh)”

and how difficult it would be to fix an area in law when the task might be like mapping the shifting sands of time and reality as the space governed by such organisations changes. There are practical problems with this legislation and, like the former independent reviewer of terrorism legislation, the Liberal Democrats do not think that the Government have made a case for it. We want to ensure that the other place scrutinises the measure given that this House has not been given sufficient time.

Finally, Government amendments 2 and 4 seek to replace their original proposal for obtaining and viewing certain material over the internet—the so-called three-click rule—with a one-click rule and a defence of ignorance about the content of the click. I spoke against the three-click proposal on Second Reading, as did many other Members on both sides of the House, and asked Ministers to go away and think again, but I did not expect them to come up with an even worse proposal. The defence for viewing such material with good cause has actually been reduced, and I am not alone in thinking that. Amnesty International fears that there is a serious risk of a chilling effect on the freedom of inquiry, whether from journalists, academics or researchers.

--- Later in debate ---

Brought up, and read the First time.

[Nick Thomas-Symonds]

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

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 3—Access to a solicitor—

“(1) Schedule 8 of the Terrorism Act 2000 is amended as follows.

(2) In paragraph 7 leave out “Subject to paragraphs 8 and 9”.

(3) In paragraph 7A—

(a) leave out sub-paragraph (3),

(b) leave out sub-paragraph (6) and insert—

(c) in sub-paragraph (7) at end insert—

(d) leave out sub-paragraph (8).

(4) leave out paragraph 9.”

This new clause would delete provisions in the Terrorism Act 2000 which restrict access to a lawyer for those detained under Schedule 7.

Government amendments 6, 7, 19, 8 and 9.

Amendment 26, page 36, line 7, schedule 3, at end insert—

“(6A) The Investigatory Powers Commissioner (“the Commissioner”) must be informed when a person is stopped under the provisions of this paragraph.

(6B) The Commissioner must make an annual report on the use of powers under this paragraph.”

Government amendment 10.

Amendment 27, page 46, line 17, leave out “and 26”.

Amendment 28, page 46, line 26, leave out sub-paragraph (3).

Amendment 29, page 46, line 33, leave out sub-paragraph (6) and insert—

Amendment 30, page 46, line 37, at end insert—

“provided that the person is at all times able to consult with a solicitor in private.”

Amendment 31, page 47, line 29, leave out paragraph 26.

This amendment would delete provisions in the Bill which restrict access to a lawyer for those detained under Schedule 3 for the purpose of assessing whether they are or have been engaged in hostile activity.

Amendment 14, page 47, line 31, leave out “and hearing” and insert “but not hearing”.

Government amendments 11, 12 and 20 to 25.

[Nick Thomas-Symonds]

New clause 1 would make our continued participation in the European arrest warrant a negotiating objective of the Brexit negotiations. There can be little doubt about the value of the EAW to this country. The Security Minister will be aware, for example, that it was vital to apprehending the man who helped to organise and co-ordinate the London bombings of 7/7. According to the National Crime Agency, between 2010 and 2016, the UK issued 1,773 requests to member states for extradition under the EAW and received 78,776 from member states. Of those the UK issued, 11 related to terror offences, 71 to human trafficking, 206 to child sex offences and 255 to drug trafficking.

According to the Government’s own White Paper, more than 12,000 individuals have been arrested, and for every person arrested on an EAW issued by the UK, the UK arrests eight on EAWs issued by other states. Without the EAW, extraditions can cost four times as much and take three times as long. The Security Minister will of course be aware that in counter-terror investigations speed really is of the essence, and it is therefore vital that we set the objective of continuing to play a key role on the European security scene.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I completely agree with what my hon. Friend has said, and I support the new clause. Does he share my concern that the current Brexit Secretary has a track record of voting against home affairs and justice co-operation before taking up his current post, and does he believe that that is reconcilable with the Government’s stated objective of close security co-operation? This is no-brainer stuff. We should be co-operating to deal with terrorist suspects and serious organised crime.

[Nick Thomas-Symonds]

I entirely agree. The Brexit Secretary’s previous record is of real concern, and it is certainly inconsistent with the Government’s stated objective. Tonight, the Security Minister has an opportunity to support the new clause and to put to bed any doubts that Members may have on this matter.

On 5 September, only days ago, in a speech updating the House on the attacks in Salisbury and referring to the two suspects, the Prime Minister said:

“with respect to the two individuals, as the Crown Prosecution Service and police announced earlier today, we have obtained a European arrest warrant and will shortly issue an Interpol red notice.”—[Official Report, 5 September 2018; Vol. 646, c. 169.]

That only goes to show that the European arrest warrant is a critical tool in our security toolkit. It is vital to ensure that should those suspects set foot in the EU, they will be remanded to the UK to face justice.

Having heard what the Security Minister himself has said in the past, I think that he actually agrees with me. On 9 December last year, he told the House:

“As we have said and will continue to say, we seek tools similar to the European arrest warrant, which we find incredibly useful. It helps us and our law enforcement agencies.”—[Official Report, 19 December 2017; Vol. 633, c. 1018.]

That is his view, and I hope that it will be reflected in his approach to the new clause this evening.

On 19 June, the EU’s chief negotiator, Michael Barnier, said that there was room for manoeuvre on the European arrest warrant. He said that if the UK

“cannot take part in the European Arrest Warrant”

in the way that it does now,

“This does not mean that we”

—the EU and the UK—

“cannot work together on extradition.”

The Government’s own White Paper stressed the difficulty in which the Government now find themselves, stating:

“Existing extradition arrangements between the EU and third countries do not provide the same level of capability as the EAW.”

Continued participation in the European arrest warrant really should be an objective of our negotiations. As we all know, organised crime knows no borders. To keep our country safe, we must co-operate with the EU27 and, indeed, other countries around the world.

My new clause does not bind the hands of negotiators. It simply says clearly that continued participation in the European arrest warrant is a negotiating objective. If it were passed tonight, it would send a signal to Brussels, reassuring those who are concerned about the Government’s approach to security in the negotiations—my hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) picked up that point in his intervention—and would also send a signal to the Security Minister’s colleagues.

[Kevin Foster (Torbay) (Con)]

We are not seeking to send signals this evening; we are seeking to create an Act, and inserting the new clause would create a part of that Act that would become irrelevant within months. Does the hon. Gentleman not agree that it would merely litter the legislation? While I accept some of his points, the Government have already made continued co-operation an objective. Why should we litter a permanent piece of legislation with a clause that would be defunct within months?

[Nick Thomas-Symonds]

With great respect to the hon. Gentleman, his argument seems to be circular. He will not vote for the new clause because he agrees with it: that appears to be his position. The idea that any piece of legislation is immune from becoming out of date, given time, is simply not credible.

[Robert Neill (Bromley and Chislehurst) (Con)]

I have a great deal of respect for the hon. Gentleman, and I understand the substance of where he is trying to get to, but in fairness to my hon. Friend the Member for Torbay (Kevin Foster), will the hon. Gentleman accept that there is a difference between what might be termed Brexit-facing legislation, such as the Trade Bill—and I myself have sometimes not been afraid to push a point because I thought it relevant—and a Bill that does not face in that direction? Given that the Government have made very clear their desire to replicate as closely as possible our arrangements under the European arrest warrant, I cannot, in this instance, agree with the hon. Gentleman that this is the right route for the Bill, although I accept his objective.

[Nick Thomas-Symonds]

As the hon. Gentleman knows, I have a great deal of respect for the work he does as Chair of the Justice Committee, but I simply say to him that security, which is what this Bill is about, is very much engaged in the issue of the European arrest warrant. As we look in the round at our security position, which we must do and are doing in the context of this Bill, I believe the EAW and the tools it gives us cannot be excluded from our consideration of security. That is why in my view this new clause belongs in this Bill, and why I hope that still, even at this late stage, the Security Minister might support it, because I think that deep down he agrees with it and I would like to see that reflected in the Division Lobby.

I think the Security Minister and I do agree on the original clause 14. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) and I both tabled amendments to it in Committee. This is the part of the Bill that gives the power to impose charges on the organisers of an event for the purpose of protecting a relevant event or site from danger or damage connected to terrorism. The concern I and many others had in relation to that clause was to do with article 10 of the European convention on human rights, on freedom of expression, and arguably article 11 and the right to peaceful assembly. We did not wish to get to a position where somehow people were priced out of the right to peaceful protest. I am glad that the Government listened on that and have amended this clause so as not to impose any potential charges on those organisations that wish to gather and protest peacefully. I understand of course that the priority must be to keep citizens safe when people gather together and that that sometimes requires infrastructure in terms of policing events, but we must strike a balance between these charges and the right to assemble. On that basis, I am pleased that the Minister has made the concession and can support that amendment.

Amendment 26 in my name addresses a specific concern that I have flagged previously with the Security Minister. It relates to border stops where there is no reasonable suspicion in relation to the individual. I previously suggested that the Investigatory Powers Commissioner be informed whenever a person is stopped under the provisions of the relevant paragraph and that there be an annual report. I have suggested this amendment again on Report because of a concern about the position in Northern Ireland, which I will come back to shortly. However, the Minister justified the power in Committee by referring to an example. An aeroplane may land at one of our airports and we may have general intelligence that someone on it poses a threat, but we do not know which person it is. That is the justification for the power and the context in which the Security Minister and I had a discussion in Committee.

This evening, however, I am seeking some reassurances about how this applies to the situation in Northern Ireland, and the Security Minister will be aware that proportionately the number of border stops is high in Northern Ireland. In 2017, that border represented 3% of the passenger numbers for the whole UK but 18% of the stops. In other words, people are six times more likely to be stopped there than in another part of the UK. The figures show that nobody who was stopped was detained for more than an hour, and in the rest of the UK the figure for that is 9%. But this power applies to the first place a train from the Republic stops in Northern Ireland to let passengers off, and I refer the Minister specifically to paragraph 2 of schedule 3, which states that an examining officer may question a person who is in the border area for the purpose of determining whether their presence in the area is connected with the person’s entry into or departure from Northern Ireland. This applies on the border strip and at the Newry and Portadown train stations. Under the provision as it stands, people could be stopped, questioned and detained without reasonable suspicion.

As I have said, I understand the need for that power in relation to the perpetrators of hostile activity outside the United Kingdom coming in, but we do not want through this provision to somehow create a hard border for people on the island of Ireland, between the north and south. I really hope that, even if the Minister does not respond to this at the Dispatch Box tonight, he will at least go away and look at this issue before the Bill appears in the other place, and indicate what protections he envisages in relation to that power being exercised in Northern Ireland.

[Stephen Pound (Ealing North) (Lab)]

I know that the Security Minister needs no reminding of the sensitivity of this matter. Does my hon. Friend agree that there could not be an area of greater sensitivity than the area around Newry and Portadown? Does he also agree that we need a full, robust and transparent reporting mechanism? Otherwise, rumours will spread, and there are some people who will seek to make the situation appear worse than it is. We must have this out in the open, because this is an area of such sensitivity. I cannot stress overmuch how delicate and dangerous this situation is.

[Nick Thomas-Symonds]

I am grateful to my hon. Friend for that intervention. He always speaks eloquently when he speaks from the Front Bench on these matters. I do not want to divide the House on this issue. My amendment proposes a robust reporting mechanism. The Minister has stated that there are other ways of doing this, and I am perfectly happy to consider them, but I hope that he will go away and look at this proposal before the Bill appears in the other place, so that we can avoid the kind of suspicion that my hon. Friend has just described.

Amendment 14 relates to legal professional privilege and to a person’s ability to consult a lawyer in private. That is an important principle. In recent weeks, following the case in the UK Supreme Court of the Serious Fraud Office v. Eurasian Natural Resources Corporation, it has been stated that

“the rule of law depends on all parties being able to seek confidential legal advice without fear of disclosure”.

I do not believe that we have to balance liberty against security in these circumstances, as we have to do in so many other areas. There is a simple, practical solution to this, and I hope that the Minister will go away and look at it so that I do not need to divide the House on this amendment.

This relates to stops at the border. There is a power in the Bill for an officer not only to watch someone receiving legal advice but to hear that legal advice being given. The power to watch has pertained for some time. Lawyers often give advice with an officer standing behind a glass frontage, for example. That has been a feature of our criminal justice system for many years. The Chair of the Justice Committee is nodding, and he will know that that practice can be used to protect the person being questioned, or indeed to protect the lawyer in certain circumstances. I have no issue with that. The power to overhear the advice gives rise to a major issue, however.

I heard the concerns that the Minister expressed in Committee. His first argument was that, rather than contacting a lawyer, a person might contact someone they wanted to notify of the fact that they had been stopped. He also argued that they might notify a lawyer who would not adhere to the professional standards that we would expect and who might pass some information on. The third scenario that he mentioned was that of a lawyer inadvertently passing on a piece of information. The solution that I have suggested to the Minister, which I hope would deal with all three points, would be to have a panel of lawyers, properly regulated by the Solicitors Regulation Authority and the Law Society, just as we currently have a duty solicitor scheme in police stations. In that situation, lawyers would both have the expertise and be properly regulated, meaning that the Minister might not have the same concerns about people’s ability simply to contact who they wished.

[James Heappey (Wells) (Con)]

I am interested in the shadow Minister’s suggestion. Would he have any concerns about whether sufficient lawyers could be accredited to guarantee appropriate availability? Does he propose that they undergo some sort of security vetting in addition to their accreditation through the Law Society or whichever other organisation is deemed appropriate?

[Nick Thomas-Symonds]

I am not aware of an area of law where there is currently a shortage of lawyers, but perhaps the hon. Gentleman will be able to tell me of one—I say that based on many years’ experience of practising as a lawyer. As for the second question, I have no issue with vetting people before they can join a panel. Indeed, it is the case now that people are considered for their expertise in professional matters before they join a legal panel. I am just making a perfectly practical suggestion that would deal with the Minister’s worries while preserving that highly important principle of legal professional privilege which, as I said in my opening remarks, the Supreme Court has said in recent weeks is vital to the rule of law in this country. We should not abrogate that as we seek to tackle the real terror threat before us. I hope that the Minister will at least undertake to go away and consider whether that could realistically be looked at in the other place. It is an important principle, and I do not want to divide the House on it, but whether there is to be a concession is a matter for the Minister.

[Stephen Doughty]

I do not want to detain the House for long, but having served as a member of the Bill Committee I wanted to put on the record some of my concerns about the new clauses and amendments in this group.

I wholeheartedly support new clause 1, tabled in the name of my hon. Friend the Member for Torfaen (Nick Thomas-Symonds). I cannot see any reason why the Government would want to reject it given that the Chequers agreement and the White Paper—I have read both carefully—point out the 40 different areas of justice and policing co-operation that are so essential to our security and our counter-terror efforts across European borders. The White Paper suggests that some of that co-operation could even be strengthened and deepened, so I cannot see any reason why setting out in the Bill the importance of seeking participation in the European arrest warrant, one of the most crucial of those 40 instruments, would be a problem.

Given the transnational nature of some of the terror plots and serious organised crime that we have seen not only in my constituency, but in some tragic events over the past year at a UK level, I cannot see why we would want to diminish our security co-operation through, for example, Europol and Eurojust. As we approach the Brexit deadline that was set when the Government triggered article 50, we are potentially leaving a great deal of uncertainty around such issues. We do not want criminal or counter-terror investigations that are ongoing at the end of March next year to be jeopardised by the failure to secure participation in the European arrest warrant going forward.

As for my hon. Friend’s amendment 26, the Minister is aware of my concerns because we have discussed them both in person and in Committee. I fully support appropriate strengthening mechanisms to ensure that individuals can be detained at border points and that the police and security services have the appropriate powers to interdict those who might be trying to commit terror acts, serious organised crime or, indeed, espionage or other serious matters. However, it is important that that is balanced against ensuring that such powers are used carefully and effectively. Where problems exist, there should be appropriate appeal and oversight mechanisms to ensure that citizens feel that such matters are being used appropriately and securely and that individuals who are wrongly interdicted have appropriate restitution, which is important for confidence in the system as a whole.

My last point is an important one for the Bill as a whole. This part of the Bill includes many new powers and schedules, and there is cross-party agreement that our security services and the police need them to keep this country and other countries safe and to prevent us from experiencing terror attacks or the consequences of serious organised crime, but they can be applied only with appropriate resourcing.

We have seen what the Metropolitan Police Commissioner has had to say today about the 2% pay rise for police being a “punch on the nose.” We have seen the National Audit Office’s reports on the concerns about cuts in policing, and we in the Home Affairs Committee have been conducting an inquiry into police funding. The frontline policing community policing and specialist counter-terrorism policing that will be required to apply the provisions of the Bill, on which there is cross-party agreement, cannot happen out of thin air or by magic; it only happens if it is properly resourced.

I urge the Minister to make a strong case in the Home Office in the coming months that the police need more resources. We cannot continue cutting in this area, otherwise we put our national security at risk.

--- Later in debate ---

[Mr Wallace]

I will start if I may by addressing the amendments in this group. First, let me turn to the Anti-Terrorism Traffic Regulation Order. Amendments 6 and 7 respond to the debate in Committee about the provisions of clause 14, which, among other things, will enable a traffic authority to impose reasonable charges in connection with the making of an Anti-Terrorism Traffic Regulation Order or Notice.

In Committee, I indicated that I would consider amendments tabled by the hon. Members for Paisley and Renfrewshire North (Gavin Newlands) and for Torfaen (Nick Thomas-Symonds) designed to prohibit charges from being imposed on the organisers of public processions and assemblies. They were quite properly concerned about protecting the right to peaceful protest. Having considered the matter further, I agree that it should not be possible to impose those charges as they have suggested, and amendments 6 and 7 ensure that that is the case.

Throughout the Bill, I have made it my business to make sure that we make changes with as much consensus as possible. I have made the point that, in my time as an Opposition Back Bencher, I rarely, if ever, saw my party or the Opposition get any concession—small or big—from the Government. I do not take that attitude in legislation, and I am delighted that we could make concessions. The Opposition and the SNP were correct in making their points, and it is right that we have put them on the statute book in the right place.

The other Government amendments in this group concern the new power in schedule 3 to stop, search, question and detain persons at a port for the purpose of determining whether they are, or have been, engaged in hostile state activity. It is important to note that this is an exact mirror of schedule 7 concerning counter-terrorism as was introduced by the previous Labour Government in 2000. Therefore, all the questions raised by hon. and hon. and learned Members from all parts of the House should be put in context that some of those issues have been in existence for 18 years—the point on the Irish border, for example. The power was specifically introduced into the Bill to deal with the aftermath of the attack in Salisbury in March. The point is that, in an open trading liberal democracy, we are vulnerable to hostile states abusing that ability to travel and that openness to come and do harm to our society and our citizens. It is a very real threat.

This was in fact considered before last March because the independent reviewer of terrorism legislation, David Anderson—who has often been quoted by the Opposition— highlighted the fact that we were stopping people we suspected of hostile state activity under schedule 7 counter-terrorism stops and said that hostile state activity needed its own separate stop power. We agreed with his observations and have acted on them. It was a tragic coincidence that the attack happened in March, reminding us just how hostile some states can be.

Amendment 10 is about oversight and representations to the Investigatory Powers Commissioner, as we seek to allow those representations also to be made in writing. It is incredibly important that we have these powers. We face a real challenge if a state—as opposed to an amateur or a terrorist—seeks to penetrate our border supported by the logistics of that state. An example is the recent case of GRU officers entering this country with genuine passports, logistically supported by the wider state. This type of activity is better disguised. It is not as easy as it is to stop someone with a rather dodgy back story who is coming here for the purposes of terrorism. This is serious, which is why it is important to take this power.

I know that there is concern about having no requirement for suspicion. That goes to the heart of the ability for us sometimes to action intelligence that is broad. For example, we might know about a certain route that is used or about certain flights in a period of a week, but known no more beyond that. We need to be able to act on that intelligence effectively on the spot.

[Nick Thomas-Symonds]

I accept that point. Indeed, I set it out in my speech. Our concern is specifically in relation to Northern Ireland. How best are we going to secure accountability for how the power is used?

[Mr Wallace]

I agree. We have had the power regarding the Northern Ireland border, or any other border, since 2000. In theory, we able to deal with matters using a counter-terrorism stop. Over the years, I have never seen so much nonsense written about the border of Northern Ireland. I have patrolled the border. I have lived on the border. I have been on the border of Northern Ireland as the Minister for Northern Ireland. I have known the varying powers—the smugglers and the people involved—on that thing for decades.

There have always been checks and stops on the border. There has been a different customs regime on the border of Northern Ireland since the 1920s. Famous smugglers have taken advantages of duty differences. There have been different tax ratios, duties and powers to make immigration stops, and we have carried these out even since the Good Friday agreement. In fact, one of the last things I did before the reshuffle that made me the Security Minister was to stand on the road near Newry doing a traffic stop of cars coming across from Ireland; they were squeezing the money out of me during my time there. These checks have always happened. This has happened for counter-terrorism for the last 18 years and we feel that should be mirrored in the case of hostile state activity.

--- Later in debate ---

[Nick Thomas-Symonds]

On the point about consultation with a lawyer, I have offered a very practical solution. Will the Minister at least undertake to look at that before this Bill goes to the other place?

[Mr Wallace]

I know that the hon. Gentleman absolutely means the best in making his recommendation. I certainly give him the assurance that I will take it away and look at it before the Bill’s introduction in the other place. Many of his points about giving reassurance to people are certainly valid. He accepts, I think, that there is a risk that a state that has deliberately planned to enter this country will sometimes be making sure—if they do a proper operation—that the so-called lawyer they would consult would be in a position to be tipped off. That is why his suggestion is a good one, and I promise to take a look at it.

--- Later in debate ---

[Mr Wallace]

I would say to them and to anyone else that the first duty of a Government is security, and it is absolutely important that we maintain that. The message to Michel Barnier is that security is not a competition; it is a partnership. I hope he will reflect that in his negotiations with this country, but I do not believe that putting it on the face of primary legislation is the best way to go about it, especially as it is our Government’s ask to the European Union on that issue. I therefore urge the hon. Member for Torfaen (Nick Thomas-Symonds) to withdraw his new clause.

[Nick Thomas-Symonds]

I certainly will not be withdrawing my new clause. Continued participation in the European arrest warrant is vital for the security of this country. Can the Minister name another example of a Minister failing to vote for a part of a Bill he agreed with?

[Mr Wallace]

I would be interested to know whether the hon. Gentleman could name a single Labour Minister who, during the passage of any European treaty or any other treaty, put the negotiating position—not the results of the negotiation, but the negotiating position—in primary legislation. I do not think he will find one. We do not intend to put it in primary legislation, especially because it is what we are asking for and we do not need to. I therefore urge hon. Members to reject the new clause.

[Nick Thomas-Symonds]

I do not find that explanation convincing in any sense.

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

--- Later in debate ---

[Nick Thomas-Symonds]

The UK national threat level, set by the independent Joint Terrorism Analysis Centre and the security services, has been at severe or higher since 29 August 2014. We put on the record our debt of gratitude to the police and the security services for the work they do in keeping us safe. Since the terrible murder of Fusilier Lee Rigby in May 2013, 25 terrorist attacks in the UK have been foiled. We should never forget that as we consider this Bill.

In June 2016, there was the terrorism-related murder of our late colleague in the Labour party, Jo Cox, and between March and September 2017, there were a further five terrorist outrages, at Westminster, on 22 March, at Manchester Arena, on 22 May, at London Bridge, on 3 June, at Finsbury Park, on 19 June, and at Parsons Green, on 15 September—although, mercifully, no one was killed in that final attack. It is fundamental that our approach in legislation does not undermine the very values that the terrorists seek to attack. The rule of law has to be fundamental to our approach.

I am grateful for the consensual approach that the Security Minister has taken on the Bill and the concessions he has made. The concession in respect of the three clicks in clause 3 makes it a better Bill. The concession on clause 14 and the preservation of the right to peaceful protest is very important, too, and is very much a part of what he rightly said about protecting our own values as an open, liberal and tolerant democracy.

I hope that this consensual approach can now continue into the Lords. As I indicated in my speech on the first set of new clauses and amendments, I am concerned that the designated areas clause came so late, and we will therefore want to subject it to scrutiny. As I indicated, we are not opposing it, but I would like to subject it to appropriate scrutiny—and I am sure it will be so subjected in the other place. I hope that the Minister will continue to work with me in that regard.

In addition, the Minister made two concessions during our debate on the second set of new clauses and amendments. First, he said he would look at the situation in Northern Ireland and accountability for the number of stops. I appreciate what he said about that. Of course, powers have been in place since 2000, but we have to ensure transparency in how the stop power is used. The second concession was on legal professional privacy. He knows that I feel passionately about this and have set out its key importance. He said that he would look at my very practical proposal before the Bill goes to the other place. That was, I accept, a concession. I hope he will continue to work on a consensual basis. Under my proposal, we would not need to balance liberty and security; we could have the position as it is but with a very practical solution.

Before drawing my remarks to a close, I want to put on the record my thanks to the Minister, the rest of my colleagues in the shadow Home Affairs team, the Members who served on the Committee and finally the Clerks who served the Committee so well as well as all of us who wished to table new clauses and amendments on Report.

Oral Answers to Questions

Nick Thomas-Symonds Excerpts

Monday 16th July 2018 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

Knife crime is often associated with county lines. I asked the Security Minister at a recent Home Office questions how the national county lines co-ordination centre was to be funded and was told that it would be through the police transformation fund. I then received a letter saying that

“it does not come from the Police Transformation Fund…and I apologise if this is the impression given.”

But the same letter says that

“projects and programmes funded through the PTF will support the strategy’s aims.”

So how are the Government funding their anti-county lines programme? Is it all from new resources or not?

[Sajid Javid]

First, I hope that the hon. Gentleman recognises the importance of dealing with the whole issue of county lines and welcomes the new co-ordination centre. It will be funded through the commitment of £40 million into the serious violence strategy, and the centre’s funding specifically will be £3.6 million over the next two years.

Draft Investigatory Powers (Codes of Practice and miscellaneous amendments) order 2018

Nick Thomas-Symonds Excerpts

Monday 16th July 2018 General Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Bailey. I say at the outset that it is not the intention of the Opposition to oppose this statutory instrument.

First, I should refer to the general approach taken to the Investigatory Powers Act 2016, during whose passage the Government accepted a significant number of amendments. That was an entirely appropriate way in which to proceed, and I pay tribute to my predecessors in the shadow home affairs team, who obviously worked for the Opposition on that Bill, and also to my predecessor as Member of Parliament for Torfaen, now Lord Murphy, who chaired the Joint Committee that looked at the Bill and recommended a substantial number of amendments that were accepted by the Government. It is with that approach in mind that I look at the order.

As the Minister set out, the order brings into force three revised codes of practice relating to covert surveillance and property interference, to covert human intelligence sources and to the investigation of protected electronic information. These revised codes will, of course, replace the previous version. I agree with the Minister that it is obviously important that the codes of practice keep pace with change. The codes of practice in themselves are important safeguards as we try to balance the obvious needs of security with liberty and appropriate safeguards for that.

The second part of the order relates to public authorities and updates the public authorities listed in schedule 1 to the Regulation of Investigatory Powers Act in order to authorise direct surveillance and indeed use or conduct of covert human intelligence sources. It also sets out those within public authorities who may authorise these activities, and the purposes for authorisation. Again, those would seem to the Opposition to be entirely sensible measures.

On the third part of the order and the combined warrants, there was, as the Minister has set out, an unintended effect on warrant duration, which the order entirely appropriately seeks to correct. The double lock system of Secretary of State authorisation and judicial commissioner approval is a very important part of the overall framework, and very important in terms of the safeguards that are set out.

On that basis, the Opposition do not intend to oppose the order.

Counter-Terrorism and Border Security Bill (Seventh sitting)

Nick Thomas-Symonds Excerpts

Tuesday 10th July 2018 Public Bill Committees

[Gavin Newlands]

It is a pleasure to see you in the Chair again this morning, Mrs Main.

We have already had a wide-ranging debate on schedule 3, with more to come. Amendments 24 and 25 would delete provisions in the Bill that restrict access to a lawyer for those detained under schedule 3. Specifically, they would retain the right of an individual to be able to consult their legal representative in private, away from a relevant officer.

As I mentioned in my previous contribution, being able to speak with a legal representative in private is a fundamental human right that should not be infringed. In oral evidence, Michael Clancy of the Law Society of Scotland spoke about the fundamental importance of this:

“If we want people to be in a position where they can freely discuss matters with their legal representatives, we have to preserve this value. It is key to the rule of law that people can discuss matters openly with their legal representatives so that the solicitor, advocate or barrister is in a position to advise properly on what avenues are open to the person. Clearly one would want to ensure that that was adequately protected.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 49, Q103.]

The Law Society of England and Wales also raised concerns, suggesting that the proposals risk the excellent reputation across the world of the UK justice systems—I add the plural to Richard Atkinson’s words. In oral evidence—an aspect of this quote has been raised before—he said:

“The cornerstone is legal professional privilege. That is not access to a lawyer; it is the confidential nature of discussions between a lawyer and their client. That is the cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard that we have in this country. That is what is being undermined by this Bill saying that a police officer can stand and listen to the consultation that is going on between the client and the lawyer.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 28, Q63.]

For a full house of views on that, Abigail Bright of the Criminal Bar Association said:

“That is deeply concerning and wholly new. ‘Radical’ is a well-chosen word here; it is a radical departure from anything known to English law. My view, and the view of the specialist Bar associations, is that it is unnecessary and undue, and that it would not in any way be a serious improvement on the powers available to law enforcement agents.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 58, Q129.]

In my view, if the schedule is left unamended, it risks infringing a basic, fundamental right that has been in place for hundreds of years, as the legal profession says. It is unnecessary and undue, and it would not be a serious improvement on the powers available to law enforcement. Access to a lawyer—fundamental access to justice—is something we should not compromise on.

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship, Mrs Main.

We had a wide-ranging debate on this issue in Committee last week. I want to raise the specific issues in amendments 42 and 43 and to support what the hon. Member for Paisley and Renfrewshire North said about the importance of legal professional privilege. It is obviously a cornerstone of our criminal justice—indeed, our justice—system and is admired around the world as a gold standard, as the hon. Gentleman pointed out.

However, in the cases we are talking about, it is not as if we must have a trade-off between two purist positions. In my view, there is a simple, practical solution to the problem before us, which should satisfy the Government’s concerns about people who are detained passing on messages to others through a lawyer who either acts knowingly or is not in the know. I responded to the Minister on that point last week.

Legal professional privilege is circumscribed by the codes of conduct that govern lawyers in our country. No lawyer can be a party to an illegal act, and they have, of course, to be very mindful of money laundering regulations. The practical solution I suggest in amendment 43 is that the Law Society approve solicitors to provide advice to persons detained. Such solicitors would be subject to the professional code of conduct, which would plug the gap in the legislation as it stands, with people simply not having access to a lawyer at all.

I put that suggestion to Richard Atkinson, the co-chair of the Law Society’s criminal law committee, in the 26 June evidence session. I said:

“From what you are saying, there is a practical solution for any legitimate concerns there may be. There is also a situation—in a police station, for example—where you can have a duty solicitor or lawyer made available. That person could be someone of particular standing and reputation in whom we could all have faith and whom we would not have those concerns about.”

Richard Atkinson replied, “Absolutely. Again, code H”—he was referring to the Police and Criminal Evidence Act 1984—

“allows exactly for that. If there are specific concerns about a lawyer, the duty lawyer or solicitor can be called to come and advise. That maintains privilege and maintains the defendant’s access to advice at that point.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 27, Q56.]

This proposal would not involve a large number of cases. The Minister will recall his own questions to Richard Atkinson, when he asked whether a lawyer would be required every single time there was a stop, which clearly is not the point. The provisions apply only when we get to the questioning stage, as set out in the evidence.

The right to private legal advice can be maintained if we adopt the idea that solicitors approved by the Law Society can provide that advice. The arguments that the Minister made against the proposal last week—that those lawyers would somehow inadvertently hand on information—are incredible. These lawyers would be subject to training in this area and would have to act with the highest professional standards. Nor would it be a restriction on the right to confidential legal advice to have a limited number of, say, panel lawyers who are able to provide it.

I urge the Minister to go back and look at this proposal for Report stage. The Government’s concerns can be allayed if they put in place a practical scheme that would be limited only in terms of the number of people who would have to deal with it but that would have the crucial effect of maintaining the very important principle of legal professional privilege, upon which our criminal justice system is based.

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

Good morning, Mrs Main. I am delighted to serve under your chairmanship.

The challenge is that we are losing sight of what a schedule 7 or a schedule 3 stop is: it is to establish the purpose and intent of an individual travelling at our borders. The vast majority of the current stops under counter-terrorism measures are for people leaving the country and not returning. We do them in an environment in which the new challenge is the digital data that people are carrying with them.

If we were standing here in 1992, the limit of the examination would be what people had on them—what they had in their bag and pockets. Those things can currently be examined; the power to stop someone to do that, in public or in private, has been in existence for many years, whether it is a customs and border stop or simply an immigration stop. Some of that is purely screening and may take minutes, which was part of my questioning to the Law Society of England and Wales when it gave evidence.

The core of these schedules is to establish that purpose and intent. Because of the challenge of digital media, it is obviously harder to establish that in the shorter periods you might have been able to do it in in the past. That is why the last Labour Government introduced the power in 2000. If we magnify these things, 18 years on, when everyone has a smartphone—not just a mobile phone—which can carry gigabytes of data, we can understand the potential challenge our law enforcement agencies face at the border.

That, at its heart, is what this stop is about. It is not about an interview under caution at a police station, which can usually be an integral part of the investigation and evidence. The verbal evidence given in these stops is not admissible in court, so if I give up information in my interview, that cannot be used in itself as the basis of a prosecution. That is why that is there.

[Nick Thomas-Symonds]

I am grateful to the Minister for giving way. All that he has said so far is perfectly fine. It is just that there is a specific provision in the Bill that allows for an examining officer to overhear what is said between lawyer and client. The Government’s justification for that is the concern that the lawyer would, somehow, inadvertently pass on information. I have suggested a practical solution—I put it to Richard Atkinson of the Law Society in the evidence panel—that would deal with all the concerns the Minister has put forward so far, but also maintain legal professional privilege. What is wrong with that suggestion?

[Mr Wallace]

I will come to that. I am setting the scene of why we need this power.

Then we come to the two amendments and the ancient right to access a lawyer and legal advice. First, on the right to a lawyer, if you are detained beyond an hour at these stops, you then have a right to a lawyer. I suspect that, in 2000, when this law was introduced by the last Labour Government, it was decided that an hour was a reasonable time for that type of screening examination, which is similar to the question, “Could I search your bag?” from a customs officer and so on. That was a reasonable time. When you go beyond that hour, you have the right to a lawyer.

Another part of that very old and dear right within the UK legal system is the right to have a lawyer of your choice. It is not just, “And here is a selection of vetted lawyers decided by the state.” There are two rights here. The hon. Member for Paisley and Renfrewshire North talks about the right to access a lawyer.

[Nick Thomas-Symonds]

The last characterisation is simply so open to challenge: the idea that there are panels of lawyers for so many different things. My suggestion simply brings the law in line with what already exists in the Police and Criminal Evidence Act 1984, and that was why the Law Society agreed with it. This idea of the state choosing the lawyer simply does not hold water, given the reality of the legal profession. In addition, in terms of what we are talking about—legal professional privilege—confidentiality is the key. It is not about the right of access, but the right of confidential discussion, and it is justification for taking that away that is the big concern.

[Mr Wallace]

I will get to that. Whether it is the Law Society or the state that defines the duty roster, the point is made that a detained individual should have a right to choose their own lawyer. The Law Society can produce a panel or a duty solicitors’ roster, but that does not impinge on someone detained in a police station tonight saying, “Thank you for that. I am going to pick my own lawyer.”

[Nick Thomas-Symonds]

I am grateful for that. Could the Minister indicate, then, whether it is the Government’s intention to repeal the Police and Criminal Evidence Act 1984, which already includes a provision like this one?

[Mr Wallace]

Let me get to the next bit, which is also about the right not to be overheard—for legal privilege to be protected—and the idea that that is somehow absolute. It has never been absolute. The justification for that not being absolute was that the last Labour Government introduced paragraph 9 of schedule 8 to the Terrorism Act 2000, which says:

“A direction under this paragraph may provide that a detained person who wishes to exercise the right…may consult a solicitor only in the sight and hearing of a qualified officer.”

The principle of, effectively, allowing the law enforcement agencies to do that, subject to chief officer authorisation, is not a new precedent that we are setting, as the hon. Member for Paisley and Renfrewshire North seems to suggest. It has existed for 18 years. The last Labour Government viewed that as important enough for it to happen when it applies to TACT offenders in a police station setting, never mind in a schedule setting. That is where that policy idea came from. It has not been rustled up in the last year. It has been around for 18 years.

If I was arrested tomorrow morning and taken to a police station, rather than the border, and I wanted to consult a solicitor, I would find that, if there were reasonable grounds—or stronger than that—and the chief officer gave permission, that discussion could, on a very few occasions, be listened to. It is not at all about “inadvertently”; it is about the few individuals, who, as I witnessed in the early ’90s, exploit that relationship for the simple purpose of tipping off or undermining or disposing of evidence. Under those circumstances, the power has already existed.

I bring the hon. Member for Torfaen back to the point of this schedule stop. What is this stop really about? The verbal evidence given is not admissible in court, and this is not the same as sitting in a police station. This is about effectively establishing the intent, the identity and the basic details at the time of a border stop.

Given that we are a free and open society, it is at our border that we are most vulnerable. Once someone is within our community, because of the way we live our lives, quite rightly, they have free movement and free everything. I am delighted that those are our values, but if we are to keep that special, and maintain that freedom within the United Kingdom, we have to be able to give that power for the simple purpose of establishing the intent—the who and the what—at our border.

The new schedule applies to hostile state activities and to people who come here to attack and undermine the very state that allows us to enjoy those freedoms. That does not put in peril the strength of our justice system and the right to a lawyer and to a fair trial—I am a Scot, and we take a slightly different philosophical view on the right to a jury, which is a very Norman thing in England and Wales. That is why I believe that these measures are proportionate and necessary to keep us safe, and I do not believe that going back on the principle established 18 years ago would keep us safe; in fact, we would be unpicking well-established law.

Funnily enough, in my two years as Security Minister, I have had lots of representations on the use of schedule 7 and whether people have a right to compensation, whether the schedule is abused, and whether we should be cleverer and faster in using it, so it does not impinge on people’s journeys. I have not yet had a representation in those two years to ask for paragraph 9 of schedule 8 to the Terrorism Act 2000 to be undone. Therefore, the Government will not accept these amendments and will leave the schedule to stand, for the purpose of screening the who, what, where and when at our border and of taking into account the large amounts of data some of these individuals carry on their way into this country.

--- Later in debate ---

[Mr Wallace]

Amendment 48 relates to the new hostile state activities ports power in schedule 3. Paragraph 27 of schedule 4 already makes provision for persons detained under schedule 3 in England and Wales to be eligible for legal aid in order to pay for legal advice and assistance they obtain concerning their detention.

Amendment 48 makes analogous provision for Northern Ireland. It brings the provision of legal aid and assistance for individuals detained in Northern Ireland under schedule 7 to the Terrorism Act 2000 or schedule 3 to this Bill, in line with what is currently provided for when an individual is arrested and held under the Police and Criminal Evidence Act 1984.

Before the hon. Member for Paisley and Renfrewshire North asks, “What about Scotland?” I can advise the Committee that the Scottish Government will bring forward any necessary secondary legislation to make equivalent provision in Scotland.

Amendment 49 is consequential on the changes we are making to the notification regime for terrorist offenders. Paragraph 40 of schedule 4 amends the notification requirements in respect of foreign travel so that a terrorist offender must inform the police of any intended foreign travel and not just, as now, any foreign travel lasting three days or more. Amendment 49 ensures that this change flows through to the requirement on a terrorist offender to notify the police of their return to the UK.

[Nick Thomas-Symonds]

I rise simply to support the Minister’s position. They both seem sensible amendments in that context.

Amendment 48 agreed to.

Amendment made: 49, page 80, line 27, in Schedule 4, at end insert—

‘( ) in regulation 5 (notification of return), in paragraph (1), omit “for a period of three days or more”.’ —(Mr Wallace.)

Regulation 5 of the Counter-Terrorism Act 2008 (Foreign Travel Notification Requirements) Regulations 2009 requires a person to whom the notification requirements apply who leaves the United Kingdom for a period of three days or more to notify the police of the date of their return and the point of their arrival in the United Kingdom within three days of their return (if they did not notify this information before leaving the United Kingdom). This amendment would ensure that regulation 5 applies to a person who leaves the United Kingdom for any period of time instead of only for periods of three days or more.

Schedule 4, as amended, agreed to.

Clause 22

Notification requirements: transitional provisions

Question proposed, That the clause stand part of the Bill.

[Mr Wallace]

Clause 22 is a very exciting clause. It makes transitional provisions in respect of the changes to the notification scheme for terrorist offenders made by clauses 11 and 12. The changes will apply to terrorist offenders who are made subject to the notification requirements after clauses 11 and 12 come into force, as well as those who are subject to such requirements when the changes take place. Generally, that means that a terrorist offender who is already subject to the existing notification requirements must provide the police with the additional information within three months of the provision coming into force—in effect, within five months of Royal Assent. The police will ensure that existing registered terrorist offenders are informed of the new requirements being placed upon them.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23 ordered to stand part of the Bill.

Clause 24

Extent

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

Gift aid changes were designed to ensure even greater generosity from taxpayers with Treasury help, but it seems that JustGiving and other platforms also take their 5% revenue fees from the gift aid element of those donations, which was never the intent of the policy. I am aware that Her Majesty’s Treasury are reviewing how the policy has operated, but the new clause would not interfere with that wider developing approach from Government; it would simply prevent a profit being taken from the full donation following a terror attack. I hope the Government will signal their intent to act, and I hope to receive a concrete assurance that this obscene approach will be ended. I welcome the Minister’s response.

[Nick Thomas-Symonds]

Let me briefly add my support to what has been said by my hon. Friend the Member for Bermondsey and Old Southwark. I pay tribute to him for the work he has done on this issue and a number of others in light of the terrible events at London Bridge and Borough market in his constituency last year. I think he highlights an important issue that is of great concern to a number of people, and I am pleased to support the new clause he has put forward.

There is great concern about the issue. My hon. Friend was right to draw a distinction between the costs of administration and clear and excessive profits. I do not think anyone is suggesting that there is a problem with having an administration cost or that those organisations involved in raising money in what are often emotionally charged and difficult circumstances need to be able to cover the costs of administration. The concern is about excessive profits being made by those particular organisations, and that concern has been expressed by my constituents. People have no objection to giving money, and they want to give money. There is great charitable intent among the British public, particularly when coming together after terrible events, but there is great concern about giving money some of which is siphoned off for clear profit for another organisation in the most awful circumstances. I support what my hon. Friend said, and I hope that the Minister will give some reassurance on this matter.

--- Later in debate ---

Brought up, and read the First time.

[Nick Thomas-Symonds]

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

[The Chair]

With this it will be convenient to discuss new clause 7—Continued participation in Eurojust and Europol—

“It is an objective of the Government, in negotiating the withdrawal of the United Kingdom from the European Union, to seek continued United Kingdom participation in Eurojust and Europol’s activities relating to preventing acts of terrorism.”

[Nick Thomas-Symonds]

These new clauses make it an objective in the Brexit negotiations to continue participation in the European arrest warrant, which new clause 6 refers to, and in Europol and Eurojust, which new clause 7 refers to. They are not restrictively drafted; they simply ask for that continued participation as an objective.

It is worth reminding ourselves of the great advantages the European arrest warrant gives us with regard to law enforcement and protecting our security. European arrest warrants are of course valid in all member states of the EU. They can be used to ask a state to arrest and transfer a criminal suspect to be put on trial, or to ask for someone who is sentenced to custody to be transferred to the UK to complete that sentence.

I have visited the National Crime Agency on a number of occasions over the past year—I am grateful to the Minister for facilitating those visits—and I have looked carefully at the extent to which the UK uses the European arrest warrant. In the calendar years from 2010 to 2016, the UK issued 1,773 requests. It is not the case that the European arrest warrant is not relevant to how we enforce our anti-terror laws, because 11 of those requests related purely to terrorism and a significant number related to organised crime—55 requests related to human trafficking, 206 to child sex offences and 255 to drugs trafficking. The European arrest warrant is an important tool for keeping the public safe.

Extradition outside the European arrest warrant

“can cost four times as much and take three times as long. It would mean an end to the significant exchange of data and engagement through Europol. And it would mean the UK would no longer be able to secure evidence from European partners quickly through the European Investigation Order”.

Those are not my words but the words of the Prime Minister about the importance of the European arrest warrant. It is vital that we seek continued participation.

There is a concern about Europol, and the Minister would do well to provide reassurance by backing new clause 7. Denmark is a recent example of a country leaving membership of Europol but maintaining access. Its experience should give the Minister pause for thought. In a referendum in 2015, Danes rejected a proposal to end the country’s full opt-out on home and justice matters and convert it to a version that would have allowed opt-outs on a case-by-case basis. That meant Denmark’s full membership of Europol was brought to an end and it was left having to negotiate a more restrictive access agreement, which stated:

“Irrespective of any access restrictions, Europol shall notify Denmark of any information concerning it if this is absolutely necessary in the interest of preventing imminent threat to life.”

Denmark continues to pay an annual sum, accepts the jurisdiction of the European Court of Justice and has observer status at Europol board meetings. However, the UK will not be in the same position as Denmark, which remains an EU member. As a third country, the UK will be negotiating from a different position—a point the EU’s chief negotiator, Michel Barnier, has made more than once. Europol co-operates with third countries, but the Minister would do well to consider why that will not work in the UK’s case. It is crucial that the UK maintains access to Europol’s data.

New clause 7 also deals with Eurojust and the general tools that are available. It is vital that we have judicial co-operation on criminal matters. That was created to improve the handling of serious cross-border and organised crime by stimulating investigation and prosecutorial co-operation.

Whether people voted remain or leave, and whatever shades of opinion there are about our future relationship with the European Union, organised crime knows no borders. To keep our country safe, we have to co-operate with the EU27 and other countries around the world. The Prime Minister herself has highlighted that. I suspect that people’s attention may have been elsewhere, but she spoke clearly in her statement yesterday about the idea of a security treaty.

New clauses 6 and 7 would simply make continued participation a negotiating objective; they would not tie anybody’s hands in negotiations. They are just a common-sense statement of the need for continued co-operation in order to keep our country safe. Keeping our country safe is far more important than any political divisions or any different shades of opinion about our future economic relationship. The Government should commit clearly to these two new clauses. After all, they are only in line with what the Prime Minister has said. I therefore hope that the Minister will be able to support them.

--- Later in debate ---

[Mr Wallace]

I had hoped that the Brexit word was never going to pass anyone’s lips in this Committee. On the penultimate new clause, I had hoped we would have had the chance of a long and healthy life. Unfortunately, the word has ventured into the Committee.

The aims of the new clause tabled by the hon. Member for Torfaen are exactly the aims of the Government’s negotiating position. We want access to the European arrest warrant. We want to play a full part in Eurojust in that way. We have made an unconditional offer to the European Commission on security. However, the difference between our position and the proposed primary legislation is that we want that to be the outcome. The drafting of the new clause is flawed, as it would have a limited practical impact on the new clause. It does not oblige the Government to secure an outcome or prescribe how negotiations are conducted but merely affirms that it is a negotiating objective of the Government to do so.

It is conceivable that the Commission is already well aware of our negotiating aims—in fact, I can tell you that it is. The inclusion of the new clauses could provide the Commission with more weight to leverage those tools in the negotiations.

[Nick Thomas-Symonds]

I am relieved to hear that the Commission is clear about our negotiating aims, but I would not be over-confident about that. On this crucial point, I am sure if I had been too prescriptive, the Minister would be jumping to his feet saying that I had not left enough flexibility for negotiation. Given that, so far, he has hardly disagreed with anything in the new clauses, I presume it is clear.

--- Later in debate ---

[Mr Wallace]

I refer the hon. Gentleman to the Prime Minister’s Munich speech in February, in which she continued to make this point about security—it is not a competition and our offer is open. The only danger to our security would be a dismissal by the European Commission out of hand and refusal to give us any intelligence or data. That would be a danger to us and to it; it would cut off its nose to spite its face.

All the Commission’s professionals, and member states’ intelligence services and police forces, are telling them that. In all my meetings with member states’ Interior and Security Ministers, they agree and concur. It is time that the Commission reflects that, because it is in the interests of European citizens to continue this relationship. It is not purely in our interest; it is in their interests, too.

The Prime Minister is absolutely determined on this point: a safer Europe is a safer Britain; and a safer Britain is a safer Europe. I do not think that will change. My simple dispute with the Opposition Front-Bench spokesperson is that I do not believe that this duty needs to sit in primary legislation.

[Nick Thomas-Symonds]

I am confused as to why the Minister is indicating that he will vote against the new clause, because he seems to agree with it wholeheartedly.

First, it would make a difference to put it in primary legislation. It would send a clear message to the European Commission, about which the Minister is worried; it would reassure the public; and it would also give Government Members the chance really to put country above party, by supporting the new clause. I will therefore press it to a vote.

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

--- Later in debate ---

[Mr Wallace]

On a point of order, Mrs Main. Before we draw to a close, I would like, to conclude these proceedings in an orderly manner, to put on the record my thanks for your chairmanship and Ms Ryan’s chairmanship. I do not think that those on either the Government or the Opposition Benches disappointed the Chair—I hope not.

I also thank those on the Opposition Front Benches. I am always amiable to the hon. Members for Torfaen and for Paisley and Renfrewshire North, and try to accommodate them. As I set out at the very beginning, I have sought, where possible, to concede. I have conceded on the suggested improvements to clause 3—the three clicks—and to the Scottish National party about clarifying that there will be no charging for public order and the right to protest.

I do not know about you, Mrs Main, but I sat for years on the Opposition and Government Back Benches listening to the valiant efforts of Opposition MPs, who get no recognition whatever. I always promised myself that I would never allow that to happen as a Minister.

I thank my officials, who have been very patient when I have said, “That makes sense. Why can’t we do it?” to which the whole Government says, “The Minister might actually change something!” The Bill manager, in particular, has been incredibly patient. I am still determined to improve the Bill before it gets on to the statute book.

I thank the Clerks, the Hansard writers and the Doorkeepers for keeping us on the record and safe. I thank the lawyers from the Home Office, the Ministry of Justice and the Treasury, and our witnesses, who set out their clear positions at the beginning.

[Nick Thomas-Symonds]

Further to that point of order, Mrs Main. I echo what the Minister said, and I thank him for taking a constructive approach to the Bill—he said on Second Reading that he would do that. I add my thanks to the Doorkeepers and the Hansard writers. I am very grateful to the Clerks, in particular, for dealing with the numerous amendments I emailed in.

I thank you, Mrs Main, and Ms Ryan for your excellent chairing of the Committee. I am very grateful to all the officials for their contribution to the Bill. I thank the hon. Member for Paisley and Renfrewshire North for working so constructively, and the witnesses for giving us very helpful evidence and cause for debate throughout the Committee.

[Gavin Newlands]

Further to that point of order, Mrs Main. This is for the hat-trick. Thank you for allowing us to sit without ties. I thank you and Ms Ryan for chairing the Committee and for being so patient with us at certain times. I thank the Clerks, the Doorkeepers and the various officials. I add my thanks to the witnesses who came to the oral evidence session and those who submitted written evidence and briefing papers, which helped Members to draw up amendments.

I thank the Minister for being open—not quite as open as I would have liked, but open none the less, compared with other Ministers I have sat opposite in previous Bill Committees. I also thank the other Front Benchers for their assistance and co-operation.

Bill, as amended, to be reported.