Data Retention and Investigatory Powers Bill

Debate between William Cash and Julian Huppert

Tuesday 15th July 2014 Commons Chamber

[Dr Huppert]

I thank the Minister for his comments. The move towards greater transparency will benefit us all, including the Home Office. I do not quite agree with some of the points that he made towards the end of his speech. Many companies are doing well publishing transparency reports, which is helping to move the agenda forwards, but in the interests of time, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 5

Effect and justiciability of this Act

‘For the avoidance of doubt and notwithstanding sections 2 and 3 of the European Communities Act 1972, this Act shall have effect and shall be construed as having effect and shall be justiciable by the courts of the United Kingdom.’—(Sir William Cash.)

Brought up, and read the First time.

[Sir William Cash]

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

I am grateful to be called at this late hour. This new clause is important. I look to the Home Secretary; she knows exactly where I am coming from and where I am going. She may believe that we will be defeated on this new clause, but nothing will prevent me from making the point, which is that the Bill could become pointless. The difficulty, which she understands—I am sure that her advisers have already explained it—is simply that clauses 1 and 2 will enable the Home Secretary to serve a data retention notice on public telecommunications operators and to make secondary legislation governing such notices. However, there is a real possibility that the precise meaning of the European Court of Justice’s Digital Rights Ireland judgment has the effect of potentially eviscerating the Bill.

Professor Peers of Essex university draws attention to the objection by the Court to the requirement to retain all communications data. The fact that the directive required all data to be retained from all subscribers was indeed the first of the considerations taken into account by the Court in arriving at the conclusion that the directive was disproportionate. The problem is that it is within the framework of European law. This Bill is within the scope of EU law and so is the charter of fundamental rights, and the general principle of EU law will continue to apply. What that means in practice is very simple: sections 2 and 3 of the European Communities Act 1972 have the effect of ensuring that the retention directive, its replacements and all that follows from it are and have to be implemented in UK law. The United Kingdom also has an obligation under the voluntarily enacted 1972 Act to accept the jurisdiction of the European Court.

The European Court has already adjudicated on this matter, but the problem is that within the framework of this Bill there are grave uncertainties that have already been expressed by myself and others during these proceedings. The bottom line is therefore whether we are to make uncertainty more uncertain by providing for a situation in which we enact a Bill that might be challenged by the European Court through arrangements that some people who do not like its provisions might decide to entertain. If they do so, it will go back through the Court of First Instance and then the Court of Appeal before going to our own Supreme Court and being referred to the European Court of Justice. As with the Merchant Shipping Act 1988, which was struck down by our own High Court in pursuance of the European Communities Act 1972, which is a voluntary Act, the net result if the European Court of Justice makes such a determination will be that the United Kingdom will be faced with this Bill being struck down as enacted.

I do not need to say any more, because I have made the point throughout our proceedings. I implore the Government to take note of the new clause, which has been carefully considered by some very senior lawyers, both academics and practising lawyers. They are convinced that the Bill is at risk and so, as I did with the enactment of the Lisbon treaty, I tabled a provision that said that notwithstanding the European Communities Act the charter of fundamental rights would not apply. The Home Secretary might smile now, but I have to say to her that that is now a serious choice for the Government. Either they except the charter of fundamental rights or, through amendment of the 1972 Act, they should ensure that the charter of fundamental rights does not apply. That also applies to these provisions and I need say no more for the moment. I sincerely trust that the Minister will give a positive response.

Justice and Home Affairs Opt-out

Debate between William Cash and Julian Huppert

Monday 7th April 2014 Commons Chamber

[Mr Cash]

Yes, I am deeply concerned about the matters that my hon. Friend raises. Indeed, the whole question of the role of the European Court of Justice is a matter of great concern, not only in this country but in many other countries of the European Union. I will not go all the way down the route of discussing the role of the Court. However, there are issues about who is qualified to be members of the Court and whether members of our own Supreme Court are entirely satisfied with the nature of the decisions that come out of it, just as they are concerned about questions regarding the European Court of Human Rights.

The reports of all three Committees are tagged to today’s debate, as is a joint report castigating the Government for their refusal to allow Parliament a debate and vote on the measures the United Kingdom should seek to rejoin before negotiations begin with the European Union institutions.

[Dr Huppert]

I presume the hon. Gentleman would accept that it is much harder for someone to negotiate when their hands are tied. Will he reassure me that he is not trying to ensure that we leave everything by making all the negotiations so difficult that they simply cannot be brought home? Is that what he is trying to achieve?

[Mr Cash]

What I am saying is that voting in this House is a test of our democracy. We have already had ample opportunity to consider the ramifications of the block opt-out and we now know the 35 matters in question. Given the importance of those issues to UK citizens, those who represent their individual constituencies in this House should now have the opportunity to vote on them. That is a matter of principle and it is also a matter of democracy. Once the decisions become irrevocable, the reality is that they will be binding, through the European Communities Act 1972, in a way that would not be the case if this were a general debate about home affairs policy. This debate is tied to the role of the European Court of Justice, against which there is no appeal.

Why have the Government set their face against an open, transparent and informed debate and vote on these measures before negotiations are concluded? In the absence of any convincing explanation from the Government—I say with great respect to the Secretaries of State that we have not had one—we are compelled to conclude that the risk of unravelling a carefully crafted coalition deal weighs more heavily than the desire for democratic accountability. Such an approach is inimical to this House’s European scrutiny system, which is based on our Standing Orders and on early analysis and assessment of the legal and policy implications of EU policies and legislation so that Parliament has a genuine opportunity to influence not only the Government’s position in negotiations, but their outcome as well.

In this case, however, the position is reversed. As I said in an intervention, Parliament will simply be asked to rubber stamp the outcome of negotiations that are being held behind closed doors and hidden from the searching gaze of the public and Parliament. Negotiations are being held behind closed doors not only by the Council of Ministers and the European institutions, but by the coalition itself. We do not know the basis on which these decisions have been reached. It is a double whammy.

--- Later in debate ---

[Dr Huppert]

My hon. Friend is right on the technicality that there would have been a second vote, but the principle ensconced in both was to have military intervention without the UN approval that some of us wanted. However, that is not the subject at the heart of this debate.

I share the concerns expressed about whether the whole effort has been worth while. The shadow Home Secretary is not in her place. I do not always agree with her, but I did agree when she said that the things we will not remain opted in to are, generally speaking, the less important ones. They are the ones that do not matter; they are more trivial. That is by design, but it also means that the entire balance will not have been changed as a result of this. The Home Affairs Committee agreed unanimously that if the Government proceed with the option as proposed, it will not result in any repatriation of powers. Some of us think that is a good thing—that collaboration and co-operation are worth having—but others have concerns. Has it been worth the huge amount of parliamentary, ministerial and official time and effort in negotiating with partners to achieve what will probably—hopefully—be a very small effect?

It is important to highlight why this matters. We have had a great deal of discussion about process, but we should remember why it is important. Our work with our partners in this area of policing and criminal justice is one of the great benefits of European Union membership. There are other benefits—on trade, free movement and a stronger voice on the international stage—but that ability to share information to catch UK criminals on the run and to bring them back to face justice at home, and to fight international terrorism and crimes such as child abuse, come from our participation in the European Union’s justice and home affairs measures. Europol is an incredibly important element in the fight against organised crime. We would suffer badly if we lost that. Cases such as Operation Rescue involved huge co-operation with 12 other countries, with Europol playing a critical role in intelligence and analytical support which resulted in the safeguarding of at least 230 children worldwide, 60 of whom were in the United Kingdom, and the arrest of more than 180 offenders, 121 of whom were arrested in the UK. That is the sort of thing that would be put at risk by those who are simply allergic to anything that mentions the word “Europe”, and there are a number on the Conservative Back Benches, though fortunately not on the Front Bench. We do take that lead. It is not a coincidence that the head of Europol is a Briton.

[Mr Cash]

The hon. Gentleman raises the question of those people for whom the word “Europe” evokes all kinds of spectres. [Interruption.] Well, he got very close to it. He is only repeating Bismarck in the late 19th century, when he said, “Whenever anybody uses the word ‘Europe’, I then realise what they are up to.”

[Dr Huppert]

I thank the hon. Gentleman for that enlightening quote. He can choose to describe himself how he likes.

It is strange that the Home Office, while trying to stay within Europol, has created ambiguity about the relationship with Europol by, for example, not opting in to other measures. I want the Government to have flexibility on these things so that they can take many of the other Europol measures and not be bound too tightly by the exact details of a vote here. It will make it very strange. As the Home Affairs Committee highlighted, that runs contrary to the logic of the Government’s stated policy.

We get huge benefits from the European arrest warrant. The Association of Chief Police Officers—it nears the end of its career but it continues for now at least to speak for senior police officers—has highlighted that relying on alternative arrangements to the European arrest warrant

“would result in fewer extraditions, longer delays, higher costs, more offenders evading justice and increased risk to public safety.”

That is what has to be set against the allergy that many have to this issue.

Keir Starmer, former Director of Public Prosecutions, said that failure to opt in could lead to an

“uncertain, cumbersome and fragmented approach, which is likely to have a damaging impact on the prosecution of crime in England and Wales.

That is what has to be addressed by those who want us just to leave the EAW. I am glad that Ministers have taken a sensible line on this. We need to reform the European arrest warrant, but we are better off for having it. For example, the Government’s Command Paper highlights that an extradition now takes on average three months, whereas it takes about 10 months for countries that are not covered by the EAW. That is a substantial change, and some people would not be extradited at all. Those who want to go back to the old framework would slow down the process of justice in some cases and stop it in others.

Of course, we need to make some changes to the EAW, and I pay tribute to the principled stance taken by the hon. Member for Esher and Walton (Mr Raab), who I do not think is allergic to this. He has some detailed, thought-through concerns about a number of aspects, and I hope we will hear thoughtful comments from him later.

Changes have been made. For example, the Anti-social Behaviour, Crime and Policing Act 2014 made some changes to extradition to ensure that our courts can take greater account of these matters, and the judge will have to consider the seriousness of the offence and the likely sentence. Changes are also happening within Europe to try to make the situation better and to deal with cases where people might face a long period of pre-trial detention. Many of our Members of the European Parliament have been working on this. In particular, Sarah Ludford—Baroness Ludford—has been successful in securing a majority in the European Parliament for a package of EU-wide reforms of the European arrest warrant. These recommendations are important. They propose the inclusion of an EU-wide human rights safeguard clause preventing miscarriages of justice, and measures to improve standards of detention, specifically pre-trial detention. I hope that the European Commission and this Government will make sure that these reforms happen by coming up with proposals to enact them that we then get into law.

If we want to benefit from these tools and change them so that they work for Britain, we obviously have to be there at the table leading the negotiations. If we walk out, we give up on any chance of doing that, leaving our citizens vulnerable at home or when they go holidaying or working in Europe. Crime crosses borders and so must we. That means co-operation, information exchange, and justice systems that match our own high standards. We should opt in to these measures and make sure that we do not accidentally walk out, because that is the key to achieving this effectively and efficiently. I hope that the Home Secretary and the Lord Chancellor will successfully conclude these negotiations, and that my fears of our sleepwalking out of them do not come to pass, because that is the best thing for Britain.

2014 JHA Opt-out Decision

Debate between William Cash and Julian Huppert

Monday 15th July 2013 Commons Chamber

[Mark Reckless]

I am not sure whether my hon. Friend has noticed some consternation among Liberal Democrat Members who think it is always and everywhere in the national interest to opt into anything that the European Union is doing.

[Dr Huppert]

rose—

[Mr Cash]

Indeed, and if the hon. Member for Cambridge (Dr Huppert), who is obviously extremely keen to intervene, wishes to do so, I would be happy to take it.

[Dr Huppert]

The hon. Member for Rochester and Strood (Mark Reckless), who serves on the Home Affairs Committee with me, is heavily wrong in this case, but that is not what I wished to say. Does the hon. Member for Stone (Mr Cash) believe that one cannot hold a position on something until it has been through a Select Committee? Select Committees do wonderful work but there are other ways to find things out. Not every single decision of this House goes through a Select Committee—that might be a bit slow.

--- Later in debate ---

[Dr Huppert]

I am delighted that the hon. Gentleman is happy, although on occasion he may not be entirely accurate.

We have discussed a number of measures that the Liberal Democrats, for example, would not opt into, and I shall say more about some of them later. However, I still believe that the European arrest warrant is absolutely right, and I was pleased to hear the Home Secretary extol its virtues. I hope that she will continue to do so, and that the Select Committee will continue to support a reformed arrest warrant.

What we just heard from the hon. Member for Rochester and Strood (Mark Reckless), and what we heard earlier from the right hon. Member for Wokingham (Mr Redwood) and the hon. Member for Stone (Mr Cash), illustrated the tendency of some Members to do exactly what we were urged not to do by the hon. Member for Caerphilly (Wayne David): the tendency to be so obsessed with Europe that crime, justice and all the other issues that we ought to care about—and about which our constituents actually care—fall by the wayside.

[Mr Cash]

I agree that this is not about Europe. It is about Britain; it is about the British citizens. I invite the hon. Gentleman to consider a case in Staffordshire. A constituent of one of my neighbouring Members of Parliament was convicted in Italy of murder and was sentenced to 15 years in absentia, but was not even in Italy when the murder was committed.

[Dr Huppert]

The hon. Gentleman is certainly making a point, but I am not sure that it is entirely the point. Justice systems all around the world make errors. The British justice system has convicted people, only for those convictions to be overturned on appeal. I do not claim that justice is perfect, but I do claim that an obsession with European issues weakens our focus on policing and crime, which are what we should be focusing on. I do not know the circumstances of the case the hon. Gentleman mentions, and it is entirely possible errors were made, but that does not mean we should not work with Europe or continue with the justice and home affairs co-operation we currently have.

Antarctic Bill

Debate between William Cash and Julian Huppert

Friday 2nd November 2012 Commons Chamber

[Dr Julian Huppert (Cambridge) (LD)]

I congratulate the hon. Member for Stroud (Neil Carmichael) on introducing this excellent Bill. He has done a huge amount of work on this matter. I congratulate him also on wearing Antarctic tartan—it looks very good on him, and I hope that other Members will wear it in future.

It is a pleasure to speak after the hon. Member for Islington North (Jeremy Corbyn), with his track record of legislation in this area, and the hon. Member for Romford (Andrew Rosindell), who chairs the all-party polar regions group. I have the pleasure to serve as the vice-chair, and it is a great pleasure to be his vice.

The Bill, which I am delighted to co-sponsor, has the potential to provide lasting safeguards for an entire continent whose outstanding natural beauty is matched only by its scientific importance. The original Antarctic treaty, signed in 1959, has long upheld peaceful and demilitarised international ownership of the continent. Its original 12 signatories have expanded to 50, and together we remain committed to co-operation and joint scientific endeavour. Although every country is committed through those treaties to the protection of the Antarctic, few have been as committed to scientific work in the area as Britain, particularly through the British Antarctic Survey, of which so much has been said, which is based in my constituency of Cambridge.

I have, I believe, the pleasure of representing more Antarctic workers than any other Member of the House, and I have a number of friends and colleagues who have worked and overwintered in the Antarctic. Indeed, the house next to where I used to live was used frequently by returning BAS members for getting used to a climate in which they could stroll outside or ride a bike, without having to deal with snow and ice. From talking to them, and to non-governmental organisations based around Cambridge—particularly those involved in conservation—and to a huge range of companies involved in this field and elsewhere, I have heard the huge concerns about the proposed merger with the Natural Environment Research Council. The topic has been raised many times in many places, and it is having a huge effect on the morale of people in BAS. They are extremely concerned about their future, and nervous that the merger will see an end to the wonderful independence of BAS and the research it does.

People are quite rightly concerned about the effect on the international reputation of BAS and British science in the area, and concerns about the merger have been expressed from as far afield as former Vice-President Al Gore. I am therefore delighted that yesterday NERC took the correct decision to abandon the merger. That was definitely the right decision, and ultimately it is right for research councils to decide how research funding should be allocated. I pay tribute to the Science and Technology Committee and to its report, in relation to which I submitted evidence, for helping to advise NERC on the correct decision, to the Minister who gave evidence to that Committee, and to others such as Phil Willis, who was formerly a Member of this place but is now in another place. He serves on NERC and has been robust in his opinions about how we can achieve a good future for polar research.

We must look at the future and at what will now happen to BAS, rather than at the past. BAS is clearly a vital national asset, and it has a dual mission that involves both the Foreign Office and pure research. It is fundamentally wrong that for eight months, BAS has been left with an interim director who has another responsibility and no polar experience. Real questions must be asked about how NERC allowed so much of BAS’s leadership to leave in somewhat questionable circumstances—I do not want to air those points in this place, but questions should be asked about how it happened. It is essential to appoint a new full-time director of BAS as soon as possible, with responsibility for delivering that dual mission, including UK commitments under the treaty. It is also important that terms of reference for the director’s post are agreed in advance by the Government—not just the Department for Business, Innovation and Skills—and ideally by Parliament, to show how seriously we take the role of the BAS director.

There will also be discussions about funding for BAS. BAS works in a uniquely difficult place; it will always be expensive to work in the Antarctic. Capital funding is essential, and the Minister for Universities and Science has managed to secure capital funding for seven of the research council’s eight key requests. The eighth request concerns the funding needed for BAS, and I hope that the Minister will persuade the Treasury to support it.

We need support for capital investment on the Cambridge site, and hon. Members who have managed to visit the site will know that further work is required to bring it up to the standard we would expect. Concerns have been raised about BAS’s revenue budget. Even as I speak, redundancies are taking place in BAS. That is causing great concern to many staff, even though they are relived that the merger will not take place.

BAS has done a fantastic job. For more than 60 years it has been responsible for the majority of Britain’s research on the continent, collaborating with international scientists on a diverse and important array of topics. That independent work must remain high-quality, separate, and guided by scientific principles. If we are to continue leading the world on high-impact issues addressed in the polar regions, that autonomy is essential. The survey maintains two ships, five aircraft, eight research stations in and around Antarctica, which are all monitored from BAS headquarters in Cambridge. The work done by BAS’s 400 staff is crucial to our understanding of planetary environmental science.

[Mr Cash]

Will the hon. Gentleman give way?

--- Later in debate ---

[Dr Huppert]

I will briefly although there is a statement at 11 am and I am keen to make progress.

[Mr Cash]

Despite my reservations about some aspects of the hon. Gentleman’s party and its policies on other matters, may I strongly commend the speech he is making and the interest that he takes in this issue as the Member of Parliament for Cambridge? I understand that he has also been nominated as the only scientist in the House of Commons. I do not know whether that is true, but I am glad to commend him on his speech.

[Dr Huppert]

I thank the hon. Gentleman very much for that intervention; it is nice to know that we agree on some things. Although it has been said that I am the only scientist in the House, that is sadly not true. I am one of two Members with a science PhD and I went on to do research, but there are other scientists in the House and it always a great pleasure to have them here. However, that is not relevant to the Bill.

BAS does a fantastic amount of work, and the Bill will help with that. It will give scientists in a hostile and at times dangerous environment the additional support they need, and secure the protected status of the unique place in which they work and often live.

Prevention and Suppression of Terrorism

Debate between William Cash and Julian Huppert

Wednesday 2nd March 2011 Commons Chamber

[Dr Julian Huppert (Cambridge) (LD)]

Thank you very much, Mr Speaker, for calling me in this important debate. As we consider control orders and counter-terrorism, it is important to think of the context in which we make these decisions. It is a time of unprecedented flux in the middle east and in north Africa, and what we are seeing there is nothing less than the wholehearted pursuit of liberty. None of us can imagine what it must have been like to be part of the Egyptian revolution in Tahrir square, and none of us has experienced the oppression that Libyan protestors are currently suffering.

All of us are privileged to live in a country where, by and large, freedom has been established and protected for many generations, but it has been clear to many of us for a while that those cherished rights and freedoms have been under attack. The previous Government used the uncertainty created by terrorist atrocities to carry out a widespread squeeze on civil liberties, and they shamefully used fear as a political and electoral weapon. Even their party’s leader, who is not particularly given to making statements about the dubious legacy left to this Government by new Labour, admits that they “seemed too casual” about civil liberties. He has not yet overcome his vagueness and set out a new and generally liberal path, although I hope that he will, and he certainly has not told either shadow Home Secretary whom he has so far appointed.

The coalition Government, however, are making progress—slow but steady progress—in their attempt to regain a better balance between security and liberty, and the counter-terrorism review was an important part of that programme. I am privileged to be a member of the Joint Committee on Human Rights, and I was involved in writing its report on control orders, which I hope Members have read. Along with the Committee, I welcome the review’s conclusion that the current control order regime, which Labour put in place, is too intrusive and fails to demonstrate a commitment to the priority of criminal investigation.

Terrorism prevention and investigation measures are a step forward, and the system is different and better, although it is certainly not perfect, because, as many Members have already said, extra-judicial processes are simply not the right way to proceed. It is a shame that we do not yet have the replacement, and it is a shame of timing that we are not in a position to ditch control orders completely and pass the legislation on TPIMs. That is what I would like, and I have made that point in a number of places in the House. In fact, we should go further. We already have the concept of bail for people who have not yet been convicted of a crime, and that is the model we should use, not the control order regime. I hope that we continue with that thread.

I am concerned about what will happen in the next nine months if we agree to the order tonight. It seems illogical for the Government to ignore their own assessment of the weaknesses of the control order regime, but that is what is happening. A number of points have been made about Lord Macdonald’s suggestion that the Director of Public Prosecutions should have a role in criminal investigation. I hope that the Minister will respond to that point, which others have made, and that he will be asked to look at each current controlee’s case to see what is the right thing to do.

I am also concerned—in timing and in practice—about the Government’s plan to make emergency legislation available for a stricter version of control orders, which would be introduced in an unforeseen emergency. Lord Macdonald described to the Joint Committee how huge such a disaster would have to be, and the Government say that they will share a draft of the legislation only with those on the Opposition Front Bench. That is wrong. The number of Members who are neither in the Government nor part of the Opposition Front Bench, but who would be interested in seeing such legislation, is very high. We would like to see it, and it should be scrutinised.

I find it hard to imagine what the need would be, but, if there ever were a need, I would like to know that Parliament had thought in the fullness of time about how the legislation would work, and had not made a rushed decision after a huge number of bombs had already gone off. I hope the Government will agree to let all Members see the legislation and go through the same process that they are going through for their emergency legislation on 28 days’ detention.

There are a number of concerns about TPIMs in detail, and I have had the privilege of talking to people in the Home Office and raised the matter with the Prime Minister and the Home Secretary. On the measured transition that the Minister described, we know that the review described relocation as too intrusive and inimical to the possibility of prosecution. Will the Minister commit to leaving unused the power for relocation in control orders between now and the new TPIMs regime?

Similarly, can we shorten the curfew periods in control orders as we head towards the new TPIMs regime? I hope that we do not introduce just a shorter curfew. To me, an overnight residence requirement involves a requirement to live somewhere normally, and if I live somewhere normally that means I am typically there between 1 am and 3 am, that I am often there earlier or later, and that sometimes I will get up early and sometimes arrive home late. That, not a shortened curfew, is an ordinary residence requirement.

I hope that the Home Secretary will thoroughly review the current controlees to see how we can bring the regime into line with what we aim for in TPIMs, and as a first step towards getting rid of the whole system. I look forward to the Minister’s comments and hope he will be able to reassure the many of us who wish to see even greater steps away from the abhorrent nature of control orders.

[Mr Cash]

rose—