Counter-Terrorism and Border Security Bill

Robert Neill Excerpts

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

[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 The idea that any piece of legislation is immune from becoming out of date, given time, is simply not credible.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.

--- Later in debate ---

[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.

[Robert Neill]

I promise to keep my remarks short. Two important matters have been raised, and I take on board the force of the shadow Minister’s arguments in favour of the value of the European arrest warrant. My right hon. Friend the Security Minister will know that, in the last Parliament, the Justice Committee produced a report on the legal implications of Brexit, which included a strong case for retaining access to the European arrest warrant and its arrangements.

It is important that we stress the value of the European arrest warrant to our crime-fighting arrangements. It is particularly significant, of course, that the National Crime Agency, giving evidence to our Select Committee at the time of the report, stressed the value of the European arrest warrant. All the legal practitioners stressed its importance, and the Minister recognises that the European arrest warrant arrangements are infinitely superior to those that were available under the Extradition Act 1989.

It has sometimes erroneously been said by one or two Members of this House that the European arrest warrant can be used disproportionately, and my right hon. Friend the Minister will know that, since the reforms to the operation of the European arrest warrant back in 2013, that disproportionality has been removed and the UK is actually an overwhelming beneficiary of the proper use of the European arrest warrant.

The Prime Minister made it clear at the beginning of this negotiation process that it is her objective to achieve this, and I am sure my right hon. Friend the Minister will be able to say that whatever the mechanism, whether in the Bill or not, the Government are committed to maintaining access to the EAW and to the rest of the supporting mechanism of criminal justice arrangements, such as data sharing, information sharing and intelligence sharing, the European criminal records information system and other schemes. All those will necessarily be a crucial part of the Government’s negotiating strategy. Whether or not it is mentioned in the Bill is not the point—the Government are reaffirming their commitment.

Legal professional privilege is an important issue to be considered. Unless I am wrong, there are sometimes arrangements for counsel, such as in relation to some of the specialist tribunals dealing with these matters, to be specially cleared and vetted. Perhaps my right hon. Friend the Minister will take that away and consider whether further application of that scheme might offer a sensible and proportionate way forward.

[Gavin Newlands]

It is a great pleasure to follow the irrepressible Chair of the Justice Committee, of which I am a member.

Before I discuss access to lawyers under legal professional privilege, it would be churlish of me not to thank the Minister for tabling amendments 6 and 7, versions of which both the shadow Minister and I tabled in Committee. The amendments will essentially ensure that public demonstrations cannot be subject to any financial charge under the Road Traffic Regulation Act 1984. It is vital for our democracy, now more than ever, that the right to assemble, and to do so without charge, is protected.

Without going over the ground covered fairly extensively from the Labour Front Bench, I put it on the record that I share the concerns voiced by the hon. Member for Torfaen (Nick Thomas-Symonds) about the Northern Ireland border stops and the huge sensitivity of this issue. I genuinely hope that the Minister will look at that, take it away and come back having addressed it.

The Bill as it stands restricts access to a lawyer for those detained under schedule 7. Specifically, it would restrict the right of an individual to consult their legal representative in private, away from a relevant officer. Being able to speak with a legal representative in private is a fundamental right, which should not be infringed. Indeed, in oral evidence, a whole cast of people backed us up. Michael Clancy of the Law Society of Scotland spoke about the fundamental importance when he said:

“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 a 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.]

Richard Atkinson from the Law Society of England and Wales also raised concerns, suggesting that the proposal risked the excellent reputation across the world of UK justice systems. 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.]

Access to a lawyer—fundamental access to justice—is something we should not compromise on. This is not about constraining the powers of the hard-working men and women who work at our borders; it is acting on the concerns that were expressed to us, to ensure that correct and proper due process is followed.

I suspect that the schedule has been drafted as a result of concerns that lawyers and legal advisers could be exploited and manipulated in some way, as has been outlined. However, as was pointed out, it is not unknown to our criminal justice system; we already have powers in place to deal with such occasions. For example, in code H of the Police and Criminal Evidence Act 1984, which deals with counter-terrorism cases, if there is a concern about an individual lawyer, there is provision for the suspect to have the consultation with that lawyer delayed, but to be offered the services of another lawyer in the meantime, so the suspect is not devoid of legal advice. We should protect that access at all costs. I accept that the Government propose the changes with the best of intentions, but we have pointed out that there are ways for it to be done without eliminating or infringing on the basic principle under the rule of law.

I express my support for the Liberal Democrats’ new clause 1, to which I have added my name. One of the greatest threats to our national security currently is, of course, Brexit and the fact that we face losing our seamless access to multilateral information-sharing tools. As we have heard, organised crime and terrorism do not respect borders and it is essential that Police Scotland—in fact, all the police services in the United Kingdom—can access the information systems, support and technical expertise available through Europol, not only to make Scotland safe, but to contribute to making Europe safer. As the hon. Member for Torfaen said, the recent naming of two suspects in the Salisbury incident and the issuing of a European arrest warrant showed just how vital this tool is to protecting the UK from threats, and why it must be maintained.

Following our exit from the EU, there is a major risk that any new arrangements that are put in place will be suboptimal to those at present. Further to that, there is also an issue with data sharing between the UK and the EU, as the EU will most likely require the UK to maintain data protection and privacy laws that can be deemed equivalent to those in force in the EU. We must ensure that our law enforcement agencies can continue to have the same access to Europol as they currently enjoy.

There is also a need to preserve stability in the law. Repealing legislation and preparing new legislation to fill in gaps arising from leaving the EU will compromise a significant part of domestic legislation that is passed at, or following, a withdrawal. Any future arrangements must take into account the autonomy of Scottish criminal justice institutions and provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts.

As a matter of security, we cannot afford an operational break in our access to EU cross-border tools, because they are part of the day-to-day work of the police force. Just today, the Lord Advocate of Scotland, giving evidence to the Scottish Parliament Justice Committee, said:

“I don’t think it controversial to observe that leaving that regime without replacing that regime would significantly and adversely affect our capabilities. From a professional criminal justice point of view, the realistic issue is the extent to which this can be mitigated.”

The Government’s dangerous Brexit plans, such as they are, may well leave us outside the European arrest warrant and key agencies such as Europol. I cannot insist enough that that would be incredibly dangerous to the future security of Scotland, the United Kingdom and, potentially, the EU. We must be able to share vital information to keep people safe from terrorism, human trafficking and organised crime. Leaving the European arrest warrant is yet another potentially disastrous Brexit bonus that we could all do without. I wholeheartedly support new clause 1.