Oral Answers to Questions
Tom Brake Excerpts(8 years, 10 months ago)
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Mrs May
My hon. Friend makes an important point. What we have proposed in the draft Bill is a double lock, so there will be the necessary accountability—because the decision is made by the Secretary of State—on whether the use of these intrusive powers under warrant is necessary or proportionate, and then there will be consideration by a judicial authority. We will therefore get that independent consideration by the judicial authority and the accountability of a Secretary of State signing the warrant.
Tom Brake (Carshalton and Wallington) (LD)
The dreadful events in Paris make it even more important that the draft Investigatory Powers Bill is subject to full and proper scrutiny by the Joint Committee to ensure that it provides both maximum security for our citizens and the toughest protection of our civil liberties. Can the Home Secretary confirm that it will get that full and proper scrutiny and that it will not be fast-tracked?
Mrs May
As the right hon. Gentleman will be aware, we consider all counter-terrorism legislation carefully and review the necessary timetables, but this is a significant Bill and I think that it is important that it receives proper scrutiny. As he has said, we have put in place important safeguards and enhanced oversight for the Bill, and greater transparency in the powers that the security and intelligence agencies and the police and law enforcement agencies have available to them. It is right that it gets proper scrutiny.
Reports into Investigatory Powers
Tom Brake Excerpts(9 years, 3 months ago)
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Yvette Cooper
No, I am not. I am part way through an argument that there are different kinds of warrant and different circumstances. In cases involving foreign affairs, where sensitive relationships with other Governments may be at stake, the Executive clearly have an important role to play; they cannot be seen simply as judicial matters. However, there are other kinds of warrant—for example, intercept warrants for the purposes of tackling serious and organised crime, where if the action was not intercept, but was instead knocking down someone’s door and breaking into their home, authorisation would be an entirely judicial process. There are significant questions about why intercept in the interests of pursuing serious and organised crime should have no judicial authorisation, whereas knocking down somebody’s door should have judicial authorisation.
That is why I think there is a strong case for introducing judicial authorisation to provide a clearer system of separation of Executive and judiciary and to introduce clearer checks and balances into the process. It does have to be done in the right way and there will be different considerations around crime and national security and foreign affairs, but I believe it is possible because other countries manage it. If we were the only country in the “Five Eyes” that did not have a process of judicial authorisation, even though we have similar intercept arrangements, that would pose a big question for us. Those who simply defend the status quo need to explain why they think the arrangements in all those other countries are inadequate and worse than ours, given the added legitimacy that some judicial authorisation processes should bring.
I recognise the complexity here; that is why it is wise that we hold this debate now, in advance of the Government making their final decisions on the issue and setting out their proposals. It is also wise that we have a period of consultation on the draft legislation, so that people can table amendments and have these debates. However, I do not see why judicial authorisation need threaten or jeopardise the work of the agencies—quite the reverse. If it is a way to provide greater legitimacy, and support from overseas, for this work, it could add strongly to the process, and to agencies’ work.
On the legislative process, I welcome the Home Secretary’s proposal for a period of proper reflection and discussion on the detail before final votes are taken in Parliament. That is the right approach. We are keen to continue discussions with her on this subject, and I welcome the briefing that she provided for me to enable us to do that. When the Snowden leaks first appeared in the media, there was a sense that Parliament was not debating these issues, that the Government were not responding, and that other countries were having a more informed and up-to-date debate about the response and the processes.
Tom Brake (Carshalton and Wallington) (LD)
On the subject of having a more informed debate, does the right hon. Lady agree that the Sheinwald report, redacted if necessary, should be published? Many believe that its proposals, including on international treaties, would do away with the need for some of what is proposed for any investigatory powers Bill.
Yvette Cooper
I have not seen the Sheinwald report or had prior briefing on it, so I could not say how much redaction would be needed, but the right hon. Gentleman is right that the more transparency we can have in this debate, the better, so I urge the Government to consider allowing maximum transparency in this regard, to the extent possible, given the operational sensitivities and our relationship with the US Government on this. Clearly, the more we can look at the detail of alternative ways of providing the powers, safeguards and legitimacy needed, the better, and the better informed the parliamentary debate will be.
The initial debates and the response from the Government were not sufficient. However, we have since had reports from the Intelligence and Security Committee and David Anderson, and we have another forthcoming external report from the Royal United Services Institute for Defence Studies. This is the opportunity for Parliament to make sure that we have a proper updated response on the complexities of the digital age and how we maintain our security and liberty in it. More safeguards and checks and balances are needed, but it is also important that our intelligence agencies can deal with the serious and growing threats that the Home Secretary talked about. We need to make sure that our talented men and women in the agencies can face those real and serious threats, but also have legitimacy for the work that they do, and the continued confidence of the public. That is in all our interests.
In a democracy, our liberty and security are the targets of terrorists who seek to harm and divide us. Liberal democracy will triumph over extremism and tyranny, but for it to do so, we need to strengthen ourselves by renewing our security and our liberty. The Anderson report helps us to have a debate about how best we do that to protect our democracy.
Mr Nick Clegg (Sheffield, Hallam) (LD)
I speak as someone who, as the Home Secretary knows, had a hand in the commissioning of this excellent report. The right hon. Lady will remember with fond, misty-eyed nostalgia the debates that she and I had on this complex, fraught and all-important area of public policy. One of the consequences of those debates and disagreements was that a number of reports were commissioned, including David Anderson’s. We look forward, as the Home Secretary said, to the publication of the report by RUSI. I strongly endorse her compliments to David Anderson and to the authors of the other reports, and I join in all that has been said in complimenting the professionalism and integrity of the work of the agencies—professionalism and integrity that I found on display daily in my work with them in government. As I will explain, my quibbles were invariably with proposals emanating from the Home Office about what new power should make its way on to the statute book, rather than with the day-to-day conduct of our highly effective intelligence agencies.
On the back of this excellent report from David Anderson, we have an unusual opportunity to try to reset the balance between privacy and liberty on the one hand, and safety and security on the other, in a digital age. As the Home Secretary rightly pointed out, all too often this debate is falsely caricatured, as if people who worry about security do not worry about liberty, and people who worry about liberty do not worry about security. In this area, as in so many other walks of life, it is necessary to strike the right balance. To somewhat misquote Benjamin Franklin, if we give up our liberty to gain a little security, we will deserve neither and lose both. As the shadow Home Secretary said, we should be striving to strengthen both liberty and security in tandem.
I am certainly no slouch when it comes to introducing new surveillance powers on to the statute book when it is demonstrably the case that doing so makes us safer and is necessary in order to keep up with new technologies. That is one of the reasons, as the Home Secretary is aware, why I always advocated legislating, as we have done, to enable enforcement agencies to match IP addresses to handheld devices, and why we legislated in the Data Retention and Investigatory Powers Act 2014—the acronym is DRIPA, unfortunately—to improve data-sharing between UK and US enforcement agencies. However, I have always drawn the line—I did in government and I do now—at proposals that I feel are either not based on proper evidence or not adequately proportionate and transparent. It is in that light that I would like to turn to a few of the points made by David Anderson.
I will not dwell on the points that have already been made about introducing a judicial role in the issuing of warrants, but I want to underline the shadow Home Secretary’s point that David Anderson made his case on the basis not just of principle, by pointing out that our practice is significantly out of line with how warrants are issued in other analogous jurisdictions, but of his observation—this was surprising, at least to me—that there might be operational value in introducing a judicial element in the issuing of warrants, as it would enable us more readily to secure data from American communications service providers, which are used to that kind of system.
I want to dwell on David Anderson’s comments on the draft Communications Data Bill—the so-called snoopers charter. David Anderson is scathing in his report about the proposals in the Bill to force UK network providers to collect and store third-party data relating to services operated by companies based overseas. He says quite unambiguously that,
“there should be no question of progressing this element of the old draft Bill until such time as a compelling operational case has been made”.
It is worth reflecting on that for a moment. I was told categorically and repeatedly in government that that was absolutely necessary for the safety of the public; that public safety would be in jeopardy if I did not endorse it. David Anderson has now found that no operational case has been made for that. Echoing an earlier question to the Home Secretary, I seek clarity from the Government on whether the forthcoming Bill will contain third-party data provisions, which David Anderson has said it should not.
In the light of that, I think that we should treat other proposals that do not have a clear evidence base or rationale—most importantly, the Home Office’s proposal to require CSPs to store so-called weblogs—with an equal amount of healthy and considered scepticism.
Mr Clegg
I thank my right hon. Friend for that intervention, which I will come to in a moment, because David Anderson has made some specific recommendations on how we compare with other jurisdictions.
David Anderson has managed to do something that I certainly did not manage to do in government: to get the Home Office to define the somewhat nebulous term of weblogs. Weblogs, according to his report, are
“a record of the interaction that a user of the internet has with other computers connected to the internet.”
The House should take a long, hard look at that definition. It encompasses just about everything someone is likely to do on an internet-connected device—every step they take, every app they open, every edit they make to an online document—and that would be stored for the entire population for 12 months. David Anderson says that, remarkably, at no point was he presented with a “detailed or unified case” for such sweeping powers.
David Anderson also makes it clear—this relates to the point my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) has just raised—that we would be seriously out of step with the rest of the world. He states:
“I am not aware of other European or Commonwealth countries in which service providers are compelled to retain their customers’ web logs for inspection by law enforcement. I was told by law enforcement both in Canada and in the US that there would be constitutional difficulties in such a proposal.”
The House will also be interested to know that the new Australian data retention law specifically excludes the collection of weblogs precisely because the Australian police told their Government that it would be a disproportionate invasion of privacy.
It is entirely reasonable for law enforcement to want to identify how a known suspect is communicating online, but that is a completely different proposition from the one that the Home Office has now been putting forward in one form or another for eight years. David Anderson sets out a strict process, including using existing powers better but less intrusively than planned by the Home Office, and the presentation of a proper operational case before any detailed proposal is put forward by the Government. I am obviously keen to know from the Government whether that reasonable approach that he advocates will indeed now be pursued.
Finally, I welcome the Home Secretary’s announcement today that the Bill will be published for pre-legislative scrutiny, which will allow further debate on its undoubtedly complex and important provisions. The Bill must be as comprehensive as possible. Both the Intelligence and Security Committee and David Anderson have argued that it should incorporate all the powers that exist in different statutes at present. In that spirit, I hope that the Government will undertake to avow all undeclared surveillance capabilities and major programmes as part of that process.
I have come to the view that the Government’s standard blanket position of “neither confirm nor deny” is simply no longer tenable. Recent disclosures mean that the public are able to read detailed accounts of alleged surveillance capabilities, but Government Ministers are unable to explain or defend the need for them in this House or in public. I believe that undermines public trust, feeding a suspicion that there are parts of the system that somehow operate beyond proper scrutiny and transparency. Although we cannot and should not reveal details of operations and specific investigatory techniques, will the Home Secretary ensure that large- scale programmes, such as those referred to in recent revelations, are properly avowed at some point in the near future?
In conclusion, it seems to me that, as has already been said, and as the Home Secretary herself has suggested, we have a big opportunity. The deadline of December 2016 is approaching, when the current data retention powers will fall. Decisions must be taken—they simply cannot be ducked any longer—and they must be taken as consensually as possible, and on the basis of clear principles of necessity, transparency and proportionality. Surveillance powers are a necessary part of a liberal society, as we must have the ability to prevent criminals from curtailing the liberty of others to live their lives free from crime, but those powers must be based on evidence that they are both necessary and proportionate to the threat we face. I suggest that this House should not entertain proposals for significant, intrusive new laws based on assertion and rhetoric alone.
Border Management (Calais)
Tom Brake Excerpts(9 years, 3 months ago)
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Urgent Questions are proposed each morning by backbench MPs, and up to two may be selected each day by the Speaker. Chosen Urgent Questions are announced 30 minutes before Parliament sits each day.
Each Urgent Question requires a Government Minister to give a response on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Tom Brake (Carshalton and Wallington) (LD)
Does the Home Secretary think that deeper UK engagement in resolving the problems Italy and Greece are facing in handling large numbers of refugees and economic migrants would maximise the chances of securing a European solution to the European problem at Calais?
Mrs May
We are working with a number of Governments across Europe. Indeed, as part of the Greek action plan agreed across Europe and put into effect by Frontex some time ago, we have been putting resources into that plan to help to support the Greek authorities to deal with the numbers they have coming across their border.
Anderson Report
Tom Brake Excerpts(9 years, 3 months ago)
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Mrs May
The previous Government acted to improve the mechanisms of parliamentary oversight by giving extra powers to the Intelligence and Security Committee. The ISC’s report on its consideration of matters surrounding the terrible murder of Drummer Lee Rigby showed a step change in the sort of information available and investigation of the operations of the agencies by the ISC and gave Parliament a much greater ability to look at such matters. However, I will reflect on my hon. Friend’s comment on the mechanisms overall and whether anything is needed in that respect.
Tom Brake (Carshalton and Wallington) (LD)
In coalition, the Liberal Democrats were right to block the snooper’s charter and in government the Conservatives are wrong to forge ahead with it.
On the subject of web logs, of which only Russia of the liberal democracies mandates the retention, will the Home Secretary allow proposals to track the browsing habits of 40 million UK citizens every week to be brought forward only if there is, as set out in paragraph 13b of the executive summary:
“a detailed operational case…and…rigorous assessment conducted of the lawfulness, likely effectiveness, intrusiveness and cost”
of the measures? Will she also confirm that, as David Anderson urges, no progress at all will be made on the question of third-party data until a compelling operational case has been made?
Mrs May
The right hon. Gentleman will not be surprised to hear that I take a different view from him on the communications data capabilities of the security and intelligence agencies and of law enforcement. These are important powers and it is clear that those powers are degrading, so the ability of law enforcement to catch paedophiles and serious criminals has been reduced, as has the ability of our agencies to deal with the matters they deal with.
The right hon. Gentleman refers to web logs. In the Counter-Terrorism and Security Act 2015, we took one step to increase the capabilities of the agencies in respect of IP addresses, but it remains the case that not all those IP addresses can be recognised and reconciled because of the inability to introduce the further legislation that his party blocked when we were in coalition.
Finally, it is not the case that that legislation was about investigating, mapping or monitoring the web browsing habits of 40 million citizens every week of the year. That is a complete misdescription of what was proposed, and I suggest that if the right hon. Gentleman wants a proper debate, he stops using those terms.
London Metropolitan University
Tom Brake Excerpts(12 years, 1 month ago)
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Urgent Questions are proposed each morning by backbench MPs, and up to two may be selected each day by the Speaker. Chosen Urgent Questions are announced 30 minutes before Parliament sits each day.
Each Urgent Question requires a Government Minister to give a response on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Damian Green
I do not think that it would be appropriate to announce relaxations in the rules. Indeed, the hon. Gentleman may not have heard, but I have said that the curtailment letters that start the 60-day period will not go out until 1 October, to ensure that we enable those people to come and find a new course. However, he has also revealed—perhaps inadvertently—one of the problems: people are coming here as students precisely so that they or members of their family can work. People who come here to study should come here to study. That is what the student visa is meant to be for. It should not be, either directly or indirectly, a way to gain a work visa.
Tom Brake (Carshalton and Wallington) (LD)
London Metropolitan university suggests that the UKBA’s concerns relate to a previous administration or previous management. What reassurances can the Minister give that the decision is fair and based on current processes and data, and that London Metropolitan university is not being singled out as an example?
Damian Green
I have heard that suggestion from London Metropolitan, which is precisely why, when the concerns were first expressed after a visit in March, the UKBA deliberately looked for contemporary samples. The figures I gave earlier to the hon. Member for Islington North relate to students who have come under the new management regime, so we are talking about up-to-date systemic problems, not historic systemic problems.
Oral Answers to Questions
Tom Brake Excerpts(12 years, 2 months ago)
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Nick Herbert
There has been a 6% fall in crime in Greater Manchester. That shows that the force is able to deal with the necessary spending reductions while continuing to reduce crime. That is a credit to the force, its leadership and its officers. The hon. Gentleman, in common with his Labour colleagues, continues to call for increases in public spending, which is exactly what got us into this mess in the first place.
Tom Brake (Carshalton and Wallington) (LD)
Will the Minister look at the role that an institute for policing excellence could play in pulling together evidence of best practice and ensuring that the police use what works and what is cost-effective in tackling crime?
Nick Herbert
Yes. I am happy to reassure my right hon. Friend that we will be—indeed, we are—looking at that proposal. We are working constructively with the police to set up a professional body for policing, about which we will have more to say shortly. Tomorrow I shall be speaking in Cambridge about evidence-led policing, and about the importance of police forces developing links with academia, which includes the potential for faculties of policing.
UK Border Agency
Tom Brake Excerpts(12 years, 3 months ago)
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Tom Brake (Carshalton and Wallington) (LD)
I am pleased to have the opportunity to make a few short points in the debate. My first is about the structural changes taking place within the UK Border Agency. Does the Minister have strong views about these proposals? In his view, will they make a significant contribution to making UKBA an organisation or agency that is fit for purpose? He will be aware of the specific changes to operational areas, with specific directors and cross-cutting directorates being established.
The Select Committee on Home Affairs has played a central role in tracking developments at UKBA over recent years. I refer briefly to the 15th report published in November last year. That report rightly identifies initial decision making as central to much of what we are debating and covers appeals, which are clearly a two-way process. Yes, officials may well make wrong decisions, but it is equally clear from the information I have received that appeals are often successful because the information was not supplied correctly the first time round. The appeal was not based on a decision, but was one in which supplementary information led to a positive outcome. Making the right decision at the outset is key, as is ensuring that the right information is supplied by applicants.
My hon. Friend the Member for Bradford East (Mr Ward), who is no longer in his place but will return shortly, highlighted the importance of intelligence, and I certainly support what he said. When people come to MPs with intelligence about the activities of individuals who they think are here illegitimately, feedback is essential so that constituents can see that some action has been taken as a result. I appreciate the difficulties associated with data protection when providing feedback that is specific to an individual case, but we need to ensure that feedback is provided in some shape or form.
On correspondence between the MPs and the UKBA, contrary to what the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) said, my experience suggests that things have improved. They are not perfect, but there is no doubt about the improvement, and my staff would confirm that. I no longer experience the sort of thing that happened back in 1997, when many people I saw in my surgery had been in the UK for perhaps 10 years, yet their status had still not been determined. That is changing, which does not mean that things are perfect.
What MPs do quite successfully is to use individual cases to identify areas with a pattern of poor performance. I will not reel off a long list of individual cases, but I shall refer to one case of a family—I shall call them Mr and Mrs J—who were granted visas on appeal in February last year in Colombo, but who have still not received them. I do not know whether a specific problem in Colombo has caused that to happen, but if such cases help to identify an issue in a particular mission, I hope that the Government would respond.
Fiona Mactaggart
May I assure the right hon. Gentleman that this is not just specific to Colombo? This pattern is common; I have a number of such cases in Islamabad, for example.
Tom Brake
I thank the hon. Lady for her intervention, which shows that it is essential for us collectively to identify such problems; we might believe that these are individual cases, but when the feedback comes in from all MPs, we see that the issue is a much wider one.
A number of Members have referred to data. Clearly, without strong data, it is difficult to determine whether policy is effective. I greatly welcome the fact that, following pressure from the Liberal Democrats on an issue that we have been running with for a number of years, exit checks will be reintroduced. Ultimately, that is the only way to secure high-quality data that can effectively inform debate.
On the problem of backlogs, I am sure the Minister will have received the briefing from the Immigration Law Practitioners Association, which many of us, too, have received for today’s debate. The briefing refers to the definition of a review, and it challenges the UKBA statement that reviews have been carried out in respect of all asylum backlog cases. That might involve a definitional issue involving what constitutes a review. A paper review may involve no contact with either the legal representatives or the individual who is the subject of the review. In any event, the ILPA is concerned about whether every case has been reviewed.
I do not know whether the Minister was quoted accurately when he was reported to have said:
“The UK has been forced to launch a global charm offensive to convince foreign students it is not against immigration”.
The quotation comes from a BBC report headed “Please come to UK”. The Minister is shaking his head, so it appears it that is not an accurate representation of what he said. Whether it is or not, however, I should like him to tell me whether the capacity exists to make what I accept is a difficult distinction between students who, having applied to attend a college here quite legitimately, find that between their application and their arrival the college has been shut down—for perfectly legitimate reasons—and has taken their money but will not give them what they wanted, and those who are not students but have colluded to come here for purposes other than study. It would be helpful to be able to distinguish such people from students who fall foul of the rules through no fault of their own.
Mr Winnick
I do not know whether the hon. Gentleman was going to mention this, but may I put to him the question that I put earlier to his hon. Friend the hon. Member for Bradford East (Mr Ward)? If he and his party believe that the appeals system is right for visitors, what input, if any, is the coalition receiving from his party on the issue?
Tom Brake
We have made written representations, but the hon. Gentleman may not have heard something that I said earlier. The most significant thing that the Government can do on behalf of everyone—the UKBA, the Government and, indeed, applicants—is ensure that the correct decisions are made the first time round.
The ILPA has drawn Members’ attention to changes made in October 2010 to the policy on suitability for detention. It alleges that conditions have worsened considerably, especially for people with serious medical conditions. Has the Minister had any dialogue with the UKBA on the subject, and is he satisfied that the rules ensure that a person’s health can be taken into account?
I shall not go into my final point in any great detail, because it has already been raised in the context of HC 194 “Statement of Changes in Immigration Rules”. Concern has been expressed not just about typographical errors, but about instances in which the understanding of the rules may have been different from what their intention now appears to be. The issue is too detailed for the Minister to respond now, but I hope that he will be able to clarify the Government’s position. I know that he has the relevant documentation.
I think that the coalition Government have made progress, particularly, I am pleased to say, on the issue of child detention, which was mentioned earlier. However, I accept that they still have a considerable distance to go.
Prevention and Suppression of Terrorism
Tom Brake Excerpts(12 years, 3 months ago)
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Tom Brake (Carshalton and Wallington) (LD)
I thank the Minister for setting out so clearly why the coalition Government intend to proscribe this organisation. He could have listed, I believe, nine separate incidents in which it was involved between 2007 and 2011. It is clearly a prolific and dangerous organisation.
The hon. Member for Kingston upon Hull North (Diana Johnson) asked a great many questions, to which I can add just one. I understand that the Minister may not be able to answer it—and many of the other questions—for security reasons, but is there any evidence of activity in the UK and specifically of, perhaps, charity work to support that organisation?
Proceeds of Crime
Tom Brake Excerpts(12 years, 3 months ago)
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James Brokenshire
The right hon. Gentleman, the Chairman of the Home Affairs Committee, makes an important point about international co-operation—one that we certainly recognised in the organised crime strategy that was published last summer. Criminals may wish to hide or to secrete assets not only in the EU, but throughout the world, so the need to look at the matter in an international context is an important one to which I shall return during my contribution.
In our domestic legislation, we have taken some important steps forward. The Proceeds of Crime Act 2002 is the principal piece of domestic legislation for the restraint and confiscation of the proceeds of crime. It is an advanced and powerful piece of legislation that in most areas goes beyond the minimum standards of the directive that we are debating this evening. It provides a single scheme for the confiscation of the value of the proceeds of crime, following any criminal conviction and regardless of the amount.
If a defendant has been convicted of a listed serious offence or has a number of convictions, the court can assume that all their property is the proceeds of crime and can be factored into the amount of a confiscation order, a power known internationally as “extended confiscation”. It allows for the confiscation of assets that have been transferred to family members or other third parties; it enables the freezing of assets by a court from the beginning of an investigation in order to prevent their dissipation; and it provides civil recovery powers, an intrinsic part of our approach to this area of law, whereby the focus is on the property, not on the person who holds it, and no conviction is required. That is a particularly useful tool for tackling high-level organised criminals for whom it is hard to obtain a conviction.
In 2010-11 UK law enforcement agencies froze or recovered more than £1 billion of criminal assets. The amount of assets recovered has increased year on year since the 2002 Act, and one of this Government’s first steps on entering office was to do away with some of the arbitrary targets that the previous Government imposed on law enforcement professionals. This has galvanised their professionalism and their approach to ensuring that more assets are recovered or frozen. Certainly, the UK is recognised as a leader in this field. However, the Government want to do more, particularly on international asset recovery, as we made clear in our organised crime strategy of July 2011.
In 2008, it was estimated that some £560 million-worth of UK criminal assets were held abroad. That underlines the level of sophistication that a number of organised crime groups are seeking to deploy in order to hide or to shield assets. Improved international co-operation is therefore a necessary step towards recovering that money. That is why we welcome the aims of the directive, if not some of its provisions. It is right that we seek to drive up standards throughout the EU and find better ways of working together with our EU partners. To that end, the directive covers confiscation following a criminal conviction, extended confiscation, third-party confiscation, non-conviction-based confiscation, and powers to freeze assets. The UK already has all those powers under the Proceeds of Crime Act, and so, in almost all areas, we exceed the minimum standards established by the directive.
The purpose of the directive is to require member states to be able to freeze and confiscate the proceeds of cross-border serious and organised crime. The Commission argues that the confiscation of the proceeds of crime in the EU is under-utilised despite the existing EU legal framework. It says that there are three problems with the current EU legal framework: its incomplete or late transition into domestic law, diverging national provisions that make mutual recognition more difficult, and the low utilisation of confiscation in practice. The directive therefore creates minimum standards for the freezing, management and confiscation of the proceeds of crime. The Commission intends that minimum standards will lead to greater co-operation, but a mutual recognition instrument has not yet been published.
It is vital that we get the detail right, and we must pay great attention to the effect of the directive on our existing domestic regime and its likely operational impact. In that regard, the Government have identified a serious problem with the directive. As drafted, it poses a very real threat to our domestic non-conviction-based confiscation regime. Operational partners have expressed concern that opting in at this stage poses a risk to the powers used by our law enforcement agencies to target and disrupt the most serious organised criminals. Our non-conviction-based confiscation powers are civil law measures that allow prosecution agencies to take action against property that they think has been acquired through unlawful activity. The action is not taken against an individual, and no criminal conviction is necessary. As I said, it is a particularly useful tool for tackling the high-level organised criminals against whom it is very difficult to achieve a criminal conviction.
In 2011-12, approximately £20 million-worth of criminal assets were recovered using non-conviction-based confiscation powers. It is important to note that the Proceeds of Crime Act, and the use of the civil standard of proof as structured within the Act, has been upheld by the Supreme Court, and therefore its operation has been subject to judicial scrutiny at the highest level. Because of its criminal law legal base, the directive risks placing non-conviction-based confiscation measures in the UK on to a criminal law footing, opening new avenues of legal challenge to our powers and, in many ways, undermining the court judgments that have been secured in relation to the operation of the Proceeds of Crime Act. If criminal law procedural protections and a criminal law standard of proof were introduced, our domestic regime would be severely weakened and our law enforcement agencies would find it harder to disrupt the workings of some of the most dangerous organised criminals.
This is a technical argument, but it is of great importance to the law enforcement agencies that protect our country from organised crime. Under qualified majority voting, there is no guarantee that we can secure the necessary changes to the text. This Government will not risk hindering the work of law enforcement agencies in tackling high-level criminality. The risk is simply too great.
Tom Brake (Carshalton and Wallington) (LD)
Is it not the case that non-conviction-based confiscation powers exist in many other EU countries and that the directive is therefore likely to be changed to increase flexibility and incorporate those powers, rather than to reduce it?
James Brokenshire
There is likely to be negotiation and discussion on the directive, as the right hon. Gentleman will know, given the manner in which such instruments are taken forward. However, given the significance of the existing powers and the way in which the regime has been tested before the courts, the key point is that because of the use of qualified majority voting, which I have mentioned, there is no guarantee that there will be the outcome that he suggests. The Government have taken the judgment that that risk is too high. On balance, we believe that not opting in at this stage is the better option. The risk to our civil recovery regime is simply too great, and I am not willing to take it, especially when operational partners have expressed such concern to us.
None the less, it is our intention to play an active part in the negotiation on the directive. Our experience on the recent human trafficking directive shows that the UK can have an influential voice, even when it does not opt in at the outset. In that case, we opted in to the directive at the post-adoption stage. The UK’s recognised experience and expertise in asset recovery will certainly help with the negotiations.
Our wider aim is to establish effective mutual recognition arrangements for both conviction-based and non-conviction-based confiscation orders. Although the draft directive adds nothing to our domestic asset recovery regime, mutual recognition arrangements could greatly improve our ability to recover the proceeds of crime held in other member states. The draft contains no proposal to establish an effective system for the mutual recognition of confiscation orders. Law enforcement partners say that they would welcome such proposals. The Government will consider how best to use our influence on that matter.
It is important to underline the comments of the Chair of the Home Affairs Committee on how mutual recognition can be a powerful tool. It is important to focus on that point. Indeed, the EU Select Committee in the other place has highlighted it as an issue with the directive and it needs careful attention.
Tom Brake (Carshalton and Wallington) (LD)
It is a pleasure to follow the Chairman of the Select Committee on Home Affairs, who has been able to put Members’ minds at rest on the subject of RABITs this evening. It is also a pleasure to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who was loquacious, in the earlier Defamation Bill debate, on the joys of coalition. I wanted to point out to him that I feel a particularly heightened sense of joy on coalition partnership working during these European Union debates.
There are a couple of points that I should like to make on this subject. I am sure that all fair-minded Members will acknowledge the value of a robust EU-wide regime for freezing and confiscating criminal proceeds, because cross-border crime is a serious and growing threat to the UK. Inevitably, one of the consequences of the four freedoms of the single market—the free movement of goods, services, people and capital—is the growth in cross-border organised crime and proceeds of crime. I am sure that Members will also agree that it is important that the UK maintains its European and international lead on these issues. That has been the UK’s position since 1998. Indeed, the EU’s 1998 joint action, which the directive would replace, was a UK proposal. Currently, in almost every respect, UK domestic arrangements match or exceed the minimum rules in the directive, so opting out permanently would threaten the UK’s leading role.
I agree that the text of the directive is not perfect and that the UK must use its active observer status to improve it and opt back in. As the Minister indicated, there are legitimate concerns about how the draft directive would interrelate particularly with our non-conviction-based confiscation powers. In response to my intervention on that point, he said that there would be no guarantee that the directive could be changed to accommodate our non-conviction-based confiscation regime. I wonder, however, whether he has any intelligence about whether that would be likely, given the extent to which these non-conviction-based confiscation schemes operate in other EU countries. I hope that he can reassure me that the UK will use its status to seek to galvanise support for ensuring that our non-conviction-based confiscation regime can sit within the scope of the directive and secure other changes deemed preferable so that we can opt back into the directive post-adoption.
Family Migration
Tom Brake Excerpts(12 years, 3 months ago)
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Mrs May
A regional variation in the income threshold was looked at by the Migration Advisory Committee and rejected by that committee for a number of reasons. The committee looked at income versus public sector costs in regions and the purely practical point that if we had regional variation, the result could very well be someone initially going to live in a region where the threshold was lower, in order to get into the country, and then moving within the country.
Tom Brake (Carshalton and Wallington) (LD)
The coalition Government must be firm but fair on immigration, so I welcome the income threshold that was eventually agreed. What flexibility or discretion will be available for those who, for example, might not be able to pass the intermediate language test—perhaps for medical reasons—or who, for exceptional reasons, might have to apply for family reunion while they are in the UK?
Mrs May
Obviously we are conscious that some people will find it difficult to deal with the income threshold—perhaps a sponsor here who is disabled and may not have the same expectations of income as others—so there will be some ability to be flexible on that. The English language test is an important part of the scheme we are putting in place. I acknowledge what my right hon. Friend says about people who, for a medical reason, may have difficulty with that, but overall I think it is right that we have the test in the scheme.