House of Lords
Thursday, 17 July 2014.
Prayers—read by the Lord Bishop of Carlisle.
We congratulate the new Indian Government on their decisive victory in the largest democratic election in history. Development through good governance was a central plank of Prime Minister Modi’s election campaign. He has announced a government programme that aims to raise economic growth and improve opportunities for the poor.
I thank the Minister for her reply. As she knows, poverty in India is on an enormous scale. It has one-third of the world’s poor and more poverty than the whole of Africa put together. Is she aware that of the 320 million people living below the poverty level, 200 million are Dalits, 50% of Dalit villages have no clean water and 75% of Dalit women are illiterate? In her discussions with the Indian Government on this issue, will she press home the fact that tackling poverty on such an epic scale is integrally linked to tackling also a system that leaves the Dalits and other scheduled castes trapped at the bottom of an oppressive pile?
The noble and right reverend Lord makes a very good point. We and the Government of India are well aware of the figures that he outlines. It is encouraging to see that when the President addressed Parliament to lay out the new programme for the new Government, he emphasised that and said:
“My government is committed to making all minorities equal partners in India’s progress”.
DfID is giving a great deal of technical assistance to the Indian Government in this regard.
The Government of India and the Prime Minister are very much aware that the people have voted for him to remove and eradicate poverty. However, there is a very confusing message for the people of India. Will the Minister clarify whether Her Majesty’s Government are more interested in seeing poverty eradicated in India than in strengthening the market for sales of UK military hardware?
Again, I quote from the President’s address to the Indian Parliament on 9 June, when he said:
“My government will not be satisfied with mere poverty alleviation but commits itself to the goal of poverty elimination”.
That is extremely encouraging. India is an important bilateral partner for us but, as the noble Lord will know, DfID is strongly engaged to try to ensure that poverty is indeed alleviated, and we hope, eliminated.
My Lords, I congratulate the Government on leading the way in fulfilling the UN target to spend 0.7% of gross national income on aid, underpinned by the forthcoming Private Member’s Bill sponsored by my colleague in the other House, Mike Moore MP. Will the Minister tell us what percentage of the international aid provided by the Government is spent on poverty-alleviating projects in India?
I thank my noble friend for his tribute to the Government. I am proud to be part of a Government who have finally met that 0.7% target. Everybody in this House knows how important that is, and how small a contribution it is in financial terms. That is something that we need to get across to the public as a whole. There is a moral case for this; it is extremely important.
My noble friend will also know that, as India grows, it is transitioning to looking after its own people; that is key. I have seen major Indian government projects in place supported with DfID technical expertise. That is the right way to head.
My Lords, 15 years ago there were just two dollar billionaires in India; now there are 46. The total net worth of the billionaire community in India has climbed from 1% to 12% of GDP. That is enough to eliminate absolute poverty twice over, with enough left over to double spending on health. What steps will the Government take to ensure that this fundamental issue of income inequality is properly addressed at the UN talks on post-2015 SDGs?
The noble Lord will know from our own history that poverty alleviation in our country was a slow process. India is moving very fast. Over the past decade, it has moved from having 37% living in extreme poverty to 22%. The important thing, as the noble Lord rightly identifies, is India’s investment in its own people. I have said that what the Indian Government have put on the record is very encouraging, as they seek to eliminate poverty among all their people with, as they stress, inclusiveness in doing so.
My Lords, does the Minister agree that while the gender gap in employment and political participation is narrowing in India, there is still much that needs to be done by the Government for the health and safety of girls and women? If that is the case, can the Minister assure us that this matter will be given the attention it deserves at the Girl Summit being hosted by the UK Government next week?
The Girl Summit is extremely important. The right reverend Prelate is right about the gender gap in India, but I also notice that in the budget of last week money was put into trying to ensure that girls attend and are safe in school. I have myself seen a major programme which puts money into the hands of families of girls to try to ensure that they stay in school and have the incentives to be there.
My Lords, does the Minister agree that the most important way to reduce poverty in India is to increase its growth rate? It has lagged behind that of China significantly over the past decade for a variety of reasons, whereas China has indeed alleviated poverty dramatically.
I agree with my noble friend that growth is essential for reducing poverty. As he will know, Mr Modi has a record in this regard. What he is doing at the moment by investing in that growth, stabilising prices and investing in infrastructure is encouraging because that is how he is most likely to relieve poverty.
I return to the point that my noble and right reverend friend Lord Harries of Pentregarth made. The poverty is related significantly to discrimination against a group which is a minority but is comprised of a large number of people: the Dalits. What will the British Government do to help India understand that and reduce the poverty among this group of people?
My Lords, the recent fuel poverty statistics show that, in fact, fuel poverty fell by nearly 5% in England in 2011-12, the latest year for which data are available. We welcome this modest fall, which was built on a fall in the two previous years. Overall, fuel poverty has fallen by nearly 9% since 2009, but we recognise that it is an extremely complex issue. It is a long-term issue requiring a long-term response.
My Lords, I thank my noble friend for her Answer. Bearing in mind that fuel poverty arises from low-income families living in badly insulated homes, of which there are more than 2 million in England, does she agree that dealing promptly and effectively with this problem would have two beneficial effects: first, to improve the living standards and health of those affected; and, secondly, through increased energy efficiency, to reduce import dependence?
My noble friend raises two key issues, and it is right that we address both of them. Our policy is to improve living standards for people in fuel-poor homes by trying to increase their energy efficiency. Our energy company obligation strikes at the heart of fuel poverty and is seeing nearly 400,000 low-income homes and vulnerable households helped since it started last March. The Green Deal, of course, is also a very important part of our policy approach.
My Lords, can the noble Baroness tell us when the strategy will be announced, which is what my noble friend—whom I am delighted to see back in the House—asked this morning? Those of us who are associated with organisations such as National Energy Action are getting rather impatient at the length of time that this is taking to be produced. The statistics are now available. A number of schemes such as the Green Deal have been a failure, and the Warm Front scheme was withdrawn last year and nothing as yet is in its place. If we are having an improvement in the economy, surely those living in hard-to-heat homes, who are vulnerable and poor, should be among the first to enjoy the benefits of this apparent and claimed return to prosperity.
The noble Lord wants to know about the announcement. We will be announcing it shortly. However, we need to make sure that we have got it absolutely right. I would argue with the noble Lord’s assertion that the Green Deal has not delivered. It was started last year, and already more than 230,000 Green Deal assessments have been carried out. Therefore, I beg to differ with the noble Lord’s approach to the Green Deal, and it would be harmful to the industry that is trying very hard to address energy efficiency measures within homes if we have such a negative approach from the party opposite.
I absolutely agree with the noble Lord. However, since it does, and has been a long-term problem for us, we need to make sure that we have a proper, long-term, well thought-out solution. That is why we will announce a strategy that will address all those issues.
My Lords, those who keep a close eye on this area point out that issues of fuel poverty depend on which groups you look at. Clearly, in some groups this is a growing area. Indeed, they assert that there is a connection between the increase in fuel poverty of certain groups and the increase in the number of pre-paid meters that have been installed, partly because it is believed that they are the most expensive way to pay for fuel. In the light of that, can my noble friend tell us what consideration Her Majesty’s Government have given to promoting the five principles on the use of pre-paid meters which were agreed between Consumer Focus and the big six energy companies back in March 2011, to ensure consistency in their installation and use?
I am extremely grateful to the right reverend Prelate for his question, which enables me to reassure him and the House that we have looked very seriously at the pre-paid meter issue. We think that people on very low incomes must be among the greater beneficiaries of this policy, which is why we will make sure that through smart meters they are able to top up their meter as if they are topping up a mobile phone, so they have no chance of being cut off when they need their electricity the most.
My Lords, on 3 June the Times reported that profits from supplying electricity and gas to households had doubled in the past year. With profit margins from selling gas now over 10%, does the Minister not agree that we need to fix the broken energy market?
My Lords, the noble Lord is right, which is why the Government have referred the market to the CMA to look at how the energy markets are operating. We will await the outcome of its work, and in the mean time, Ofgem has the powers, as the noble Lord is aware, to take action against any supplier if it has any supported evidence that shows that they have behaved inappropriately.
My Lords, one of the great barriers to eliminating fuel poverty is that many people in that situation live in private rented accommodation and there is no incentive on landlords to make better the conditions and the cost of energy for their tenants. Can the Minister tell us what the Government are doing to remove that particular barrier and help those people, who suffer from some of the worst fuel poverty?
Of course, my noble friend raises another very important point. That is why we are looking at the private rented sector very carefully and trying to make it a priority that we ensure that we raise standards within that sector. We are working very closely with our colleagues at DCLG to ensure that we have the right approach. We are working towards a strategy that we hope will see some much more positive results from this sector. However, my noble friend is right to raise the issue, which we take very seriously.
Poverty and Social Exclusion
This report was published back in March 2013. It says that people were deprived if they could afford less than 42 out of 44 necessities. Under the Child Poverty Act, which this House spent much time on, 1.8 million children are in combined low-income and material deprivation, which is far lower than the 4 million children reported to be deprived in this report.
It is not only the Poverty and Exclusion research group that has highlighted what certainly was a catastrophic increase in the percentage of households that fall below society’s minimum standard of living. Does the Minister understand that the concern expressed by that organisation has also been expressed by the Joseph Rowntree Foundation, Barnado’s, and many others, and that it still exists? I prefer the joint views that they have expressed to those of the Government.
The previous Government put through the Child Poverty Act, which we on this side of the House supported. It is based on some research that comes out regularly on households below average income. That came out last week, and it showed that the proportion of children in relative poverty is at its lowest level since the mid-1980s.
My Lords, it is clear that there are more than 1 million children still in poverty, and the relationship between their welfare and their education is well known. Does the Minister not agree that there should be a great deal of focus on young people who are going to find it difficult to pay for expensive school uniforms and trips? Otherwise they will be seen as different from their peers.
The noble Baroness is completely right to concentrate on the fundamental causes of poverty, and working with youngsters is clearly right at the heart of that. That is why this Government have taken so many major steps in this area, including introducing the pupil premium and the early years pupil premium, raising teacher quality, and a number of others. I absolutely endorse her concentration on that area.
My Lords, given the importance afforded to education in this report, will the Minister also look at the welcome news in the Ofsted report published yesterday, that there is now evidence that the pupil premium is closing the attainment gap between children who have free school meals and their peers?
It is clearly vital, as my noble friend says, to close the gap. There are lots of interesting statistics, particularly about what is happening in the London schools that are outperforming—although we do not know exactly how that has happened, and it is vital that we find out. It is the London Challenge, and there are quite a lot of analyses of exactly why that has come about.
My Lords, the long-awaited interim report on the bedroom tax emerged this week. It slipped out at the height of the reshuffle without so much as a ministerial Statement, and it confirms what we knew—that only 4.5% of claimants have downsized, arrears have gone up, half of claimants have cut back on essentials such as food, and a quarter have gone into debt to avoid losing their home. I ask the Minister two questions. First, what assessment have the Government made of the effect of the bedroom tax on child poverty levels? Secondly, given the rather extensive briefing in today’s media that the Liberal Democrats are doing a U-turn on the bedroom tax, is it still government policy?
Maybe I am not the best person to comment on Liberal Democrat manifesto planning. I can, however, assure the House that the removal of the spare room subsidy remains government policy—and I remind the House that this was coalition policy, which was decided in 2010 at the highest levels of government.
My Lords, I warmly welcome the excellent steps that this and the previous Government have taken in improving support for young people leaving local authority care, but may I draw the Minister’s attention to today’s report from the Education Select Committee in the other place, which highlights the fact that too many young people from care are going into bed-and-breakfast accommodation? There is still a lot of work to do, so will he look at that carefully? I also ask him to look at the next iteration of the care leavers strategy, which his department has been involved in, and to ensure that health, particularly mental health, is fully included, so that young people of 16 to 25 leaving local authority care, and the people who support them, have the excellent mental health support they need to avoid those young people entering social exclusion and poverty?
The noble Earl is absolutely right to concentrate on this issue because this group has traditionally done disproportionately badly. We have taken steps to ensure that these young people are better off in terms of housing than youngsters who are not coming out of care. As regards the mental health issues, it is absolutely correct to concentrate on the fact that a large proportion of people develop long-term disabilities due to mental health issues. We are devoting a lot of energy to consideration of that area.
It is always a great pleasure to reflect on the fact that we now have the highest rate of employment that this country has ever seen. One of the most interesting figures that I have looked at lately is that which shows what has happened to workless households in the social housing sector. That figure has always been high. It was up at 48.7% when we came into government and never got below 46%-odd at the height of the boom. However, it is now right down at 42.7%. That reflects a major cultural change as we get this country back to work.
My Lords, we are deeply concerned by the continuing violence in Gaza and Israel and call on all sides to de-escalate to avoid further civilian casualties. The Israeli people have the right to live without constant fear for their security and Gazans have the right to live with dignity and peace. We are concerned by the deteriorating humanitarian situation in Gaza.
My Lords, is the Minister aware that according to this morning’s figures—the latest I can get—more than 200 people have been killed in Gaza, nearly half of them women and children; four children have been killed on a beach, nowhere near rocket launchers; nearly 1,400 people have been seriously injured and the same sort of number of homes have been totally destroyed, together with water supplies, power supplies and sewage installations? The chief executive of UNICEF predicts that a generation of young people—
You do not want to hear it: you are going to—young people traumatised and sick and hell-bent on revenge.
Does the Minister agree that we should help Israel to accept the Hamas offer of a ceasefire on condition that both Israel and Egypt open the crossings and the borders are supervised by the United Nations? Does she also agree that by allowing Israel to constantly break international law and act with impunity, we—all of us in this House, present and absent—are implicit in the destruction and suffering of the people of Gaza?
My Lords, I understand the strength of feeling about this matter not just in this House but across the country. It is for that reason that we have been asking for a de-escalation. There is, of course, some hope this morning. Noble Lords will be aware that there has been a five-hour humanitarian ceasefire which was negotiated by the United Nations. We hope that that will form the basis of further discussions later today.
My Lords, as the noble Baroness, Lady Tonge, has been asking her Question and the Minister has replied a precious five-hour ceasefire has been in force. Many noble Lords will have seen the video recording of the unspeakable deaths of the four innocent Palestinian boys playing on a beach. They will also have seen the human misery at the funeral of a 37 year-old Israeli who was, equally unspeakably, killed by a Hamas rocket. Does the Minister agree that the world will find it difficult to understand how a five-hour ceasefire can be agreed, but not a longer and stronger ceasefire that stops this horror?
Of course, my Lords; unfortunately that is the complexity of the Middle East peace process, and of the situation that has existed there for many, many decades. There is nobody in this country who could be unmoved by the tragic deaths that we are seeing as a result of this conflict. As a mother, of course I feel for the death of any child. As I have said before at this Dispatch Box, it is not the natural order to bury your children; the natural order is for our children to bury us. The deaths on both sides are of course tragic events. It is for that reason that this matter has to be de-escalated, and we have to get back to the negotiating table.
Would my noble friend accept that there are many who entirely support Israel’s right to continue as an independent nation and to defend its borders, but at the same time believe that there is no hope for peace as long as Israel continues its illegal settlement policy? Does my noble friend accept that Israel is the only so-called liberal democracy that believes that colonisation should be part of its programme?
The noble Lord of course makes strong points. I said at this Dispatch Box only earlier this week that when we have these discussions it is important to emphasise the values upon which countries seek to operate. Regarding the ceasefire, I can say that last night delegations from both Israel and Hamas arrived in Cairo for discussions on the Egyptian initiative which is currently on the table. I understand that President Abbas is in Cairo and is due to meet General Sisi. It may well be that these latest tragic deaths have finally made people stop and think.
The Government have said on a number of occasions that it is of course in the interests of the Palestinians and, indeed, the Israelis for this matter to be resolved. As long as the underlying issues are not resolved, then neither people in neither country can be safe.
My Lords, will HMG work really hard from now on to ensure that the United States stops automatically vetoing UN Security Council resolutions which bring peace in the Middle East? This allows Israel to disobey international law, as was also said by the noble Lord, Lord Deben. This is absolutely essential, because there have been nearly 40 vetoes since 1968, allowing Israel just to flout international law. I speak as a long-standing admirer of the country of Israel, but not of the present Government’s policies.
My Lords, with the leave of the House, I shall now repeat a Statement made in answer to an Urgent Notice Question in the House of Commons by my right honourable friend Mrs Theresa May, the Home Secretary. The Statement is as follows.
“The sexual abuse of children is an abhorrent crime which this Government are absolutely committed to stamping out. In my Statement to the House last week, I addressed two important public concerns: first, that in the 1980s the Home Office failed to act on allegations of child sex abuse and, secondly, that public bodies and other important institutions have failed to take seriously their duty of care towards children. As I informed the House on 7 July, the whole Government take these allegations very seriously. That is why I announced two inquiries last week.
The first is a review led by Peter Wanless, the chief executive of the National Society for the Prevention of Cruelty to Children, with the support of Richard Whittam QC, of the original investigations which Mark Sedwill, the Permanent Secretary at the Home Office, commissioned last year into suggestions that the Home Office failed to act on allegations of child sex abuse in the early 1980s. Peter Wanless and Richard Whittam will also look at how the police and prosecutors handled any related information that was handed to them and examine another recent review into allegations that the Home Office provided funding to an organisation called the Paedophile Information Exchange. Mr Wanless and Mr Whittam are both in post and work on that review has begun. Its terms of reference were placed in the Library of the House last week and I expect the review to conclude within eight to 10 weeks.
More widely, I also announced last week an independent panel inquiry to consider whether public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse. The Home Office has appointed the head of secretariat for the panel inquiry, which will begin its work as soon as possible after the appointment of the chairman.
As the House will know, I asked Baroness Butler-Sloss to act as chairman of the panel, and she agreed to do so. However, having listened to the concerns raised by victim and survivor groups, and by Members of this House, Lady Butler-Sloss subsequently came to the conclusion that she should not chair the inquiry. I was deeply saddened by Lady Butler-Sloss’s decision to withdraw but understand and respect her reasons. She is a woman of the highest integrity and compassion and continues to have an enormous contribution to make to public life.
Work is ongoing to find the right chairman, and other members of the panel, to do just that. An announcement will be made as soon as possible so that this important work can move forward. I am sure that honourable Members will agree that it is also very important that the terms of reference for this inquiry are considered carefully. That is why it is right that we should wait until we have appointed a new chairman and a full panel, and discussed them with them.
I want this inquiry to leave no stone unturned in getting to the truth of what happened and making sure we learn the necessary lessons to protect children and vulnerable people in the future.
Members will be aware of the outcome of the National Crime Agency’s operation, reported in the media yesterday. That operation signifies this Government’s relentless commitment to pursue those who engage in online child sexual exploitation. The operation is unprecedented in its degree of co-ordination, with the NCA leading and co-ordinating law enforcement efforts which involve 45 police forces across England, Wales, Scotland and Northern Ireland. It has been ongoing for the past six months. People from all walks of life have been identified, including those in positions of trust.
In the mean time, I can assure the House that work to tackle this reprehensible crime continues. That is why, in April last year, the Government established the national group to tackle sexual violence against children and vulnerable people, which is led by my honourable friend the Minister for Crime Prevention. This cross-government group was established to learn the lessons from some of the recent cases which have emerged, and the resulting reviews and inquiries. As a result of its work, we now have better guidance for the police and prosecutors, new powers for the police to get information from hotels that are used for child sexual exploitation, and better identification of children at risk of exploitation through the use of local multiagency safeguarding hubs.
The Government are also committed to tackling the threat to children online. That is why the Data Retention and Investigatory Powers Bill, which is currently before Parliament, will ensure that our law enforcement agencies continue to have access to another vital tool—communications data. Without access to communications data—the who, where, when and how of a communication but not its content—public authorities’ investigative capabilities in relation to online child abuse would be significantly damaged and vital evidence would be inaccessible.
The CEOP command of the National Crime Agency works with police forces to investigate child sexual abuse and has access to specialist officers who could be called upon to assist in complex cases. CEOP is already providing support to forces in the robust investigation of child sexual abuse, as the arrests reported yesterday make clear.
Child abuse is an abhorrent crime which can scar people for life and the Government are determined to stamp it out. We are working across government to ensure that victims of historical child abuse who come forward in response to our overarching inquiry get the support and help they need. We have ring-fenced nearly £40 million for specialist local support services and national helplines, including more than 80 independent sexual violence advisers.
So our message is clear: the Government will do everything they can to allow the full investigation of child abuse—whenever and wherever it occurred—to support the victims of it and to bring the perpetrators of this disgusting crime to justice”.
That concludes the Statement.
My Lords, I am grateful to the Minister for repeating the Answer to the Urgent Question, although he may be aware that his Answer was somewhat different from the one that was circulated. However, I am glad he referred to this issue, because yesterday’s report that the National Crime Agency has arrested 660 people for online child abuse and sexual assaults is both encouraging and depressing. It is encouraging because it shows that the police give this a very high priority, but it is deeply depressing that there are now reports that thousands more people suspected of accessing child abuse images are known to the police but are not being arrested.
The paramount concern, which I am sure is shared across the House, is to protect children and prevent their becoming victims of abuse. How many of those identified would be barred from working with children? With a 75% drop since 2010 in the number of offenders and people barred from working with children, will the Minister accept that a review of the current child protection system, including the entire vetting and barring system, should be included as part of the overarching inquiry into child abuse and a report presented to your Lordships’ House as a matter of urgency?
My Lords, there is indeed no hiding place. We do not know the actual total but we know that it is a large number. We are certainly determined that all those who have been involved in this will be dealt with by the law, as they should be.
The noble Baroness asked about the DBS. As noble Lords will know, the Protection of Freedoms Act encouraged that people who were not working with children should no longer automatically face being disbarred. That was the decision Parliament made in that respect. I agree it is an area that will be examined to see whether there has been any adverse effect, but I do not see that as being the primary cause of this problem. The barring service, in which I have a great deal of confidence, still ensures anybody working with and in contact with children is barred from employment if there are grounds to suspect that they are involved in this sort of activity. That will continue and that is, I am sure, the policy that this House would wish to see continue.
My Lords, given the unfortunate circumstance that the noble and learned Baroness, Lady Butler-Sloss, is no longer to chair the inquiry, is the Minister aware that there are seven extremely distinguished, female members of the Court of Appeal, Lady Justices? Is he aware that the appointment of any one of those seven would be extremely welcome to most Members of this House, and that a number of them, like the noble and learned Baroness, have special experience in dealing with issues concerning family law?
I have expressed the views of the Home Secretary and the disappointment that the noble and learned Baroness, Lady Butler-Sloss, will not be taking this inquiry. The House has shown its feelings on that matter. I do not doubt that we will find a competent person to take the chairmanship and that, in turn, we will find people to join that person in forming the panel that will lead the inquiry.
Does the Minister agree that the inquiry that was to be conducted by my noble and learned colleague Lady Butler-Sloss needs to have precise terms of reference? Does he agree that hours spent on refining the terms of reference are important because they could avoid months of challenge?
I understand what the noble Lord is saying. The terms of reference will be decided in conjunction with the chairman. Only the chairman can determine where the inquiry should go. We need to have no closed minds on this issue but we have made clear that, while it is not a statutory inquiry, it can become one if the chairman and the panel believe that that is necessary for them to continue with their work. There is no reason why the inquiry cannot make interim reports on matters considered to be essential for the Government to take action on immediately. None the less, I think I made clear in the Statement that I repeated here on Monday 7 July that the whole point is that the inquiry should be deliberative and thorough so that we make sure that the Government can deal properly with an issue that is of concern to the House and to the country as a whole.
My Lords, I echo what people have said about the noble and learned Baroness, Lady Butler-Sloss. It is a great shame that she is not doing the inquiry. I have great admiration for her, which goes back a very long time, and she would have done it beautifully. However, I have some problems with the inquiry itself. The Government speak of an overarching inquiry, which I understand. The expectation seems to have arisen that this inquiry will name names—that people will be named in the inquiry and that somehow there will be an exposure of people who are supposed to have committed these dreadful crimes. The inquiry is not a court of law and cannot deal with a defendant as a defendant. It is not a police force, so it will not have the resources of the police and the Home Office to investigate these matters. How do the Government see the inquiry dealing with the issues when names are named, which, as I understand it, the Government want them to be?
It is for the police to deal with the apprehension of offenders and to act on information that they have available. It is not the purpose of the inquiry to deal with individual cases. It will be important to make sure that the inquiry separates the police operations from its own investigations and does not, in the process of making its findings known, jeopardise police officers or the proper administration of justice.
My Lords, I welcome all the Government are doing to bring the perpetrators of child abuse to justice, but will they do more to prevent it happening in the first place? Hundreds of thousands of people go online and access child pornography on the internet. Some people seem to take the view that, if that is all they do, it does not matter too much. But, of course, every such image of a child on the internet is a child who has been abused, and the people accessing those images are complicit in that crime. There is some overlap between those who access child pornography on the internet and those who go out to contact children and abuse them physically. There is a great deal of controversy over how big that overlap is. Will the Government do more research to look into the overlap between accessing child pornography on the internet and physically abusing children? Will they do more to support those charities that do wonderful work with people who accept their inappropriate urges and want not to offend physically? Organisations such as the Lucy Faithfull Foundation struggle for resources to do this very important work to prevent children being abused in the first place.
I could not agree more with the premise of my noble friend’s questions; it is important to support charities. I also agree that viewing images of children online is not a harmless pursuit. It is damaging to those who have been involved in sexual abuse to provide those images, but it also leads individuals on to sexual abuse. That is why we are right to take this view. We have open minds about how the Government should deal with this over time, but I agree with my noble friend that the numbers coming forward suggest that this problem has been made worse by people’s ability to view these images online.
My Lords, it is quite clear that the Government intend not only to look at historical abuse during this inquiry but to ensure that what is happening here and now is firmly within the sights. I hope that the Minister can reassure me on that point. The police officer who dealt with the issues yesterday said clearly that we cannot arrest our way out of this situation. It is absolutely crucial that we get the right programmes in place, as the noble Baroness opposite said, with the present and well defined research that is going on, rather than looking back and getting it wrong.
Insurance Bill [HL]
A Bill to make new provision about insurance contracts to amend the Third Parties (Rights against Insurers) Act 2010 in relation to the insured persons to whom that Act applies and for connected purposes.
The Bill was introduced by Baroness Anelay of St Johns on behalf of Lord Newby, read a first time and ordered to be printed.
Mesothelioma (Amendment) Bill [HL]
A Bill to amend the Mesothelioma Act 2014.
The Bill was introduced by Lord Alton of Liverpool, read a first time and ordered to be printed.
Privileges and Conduct
Motion to Agree
This report follows an investigation by the Commissioner for Standards into the conduct of the noble Lord, Lord Blencathra. In March 2014 a complaint was made on the basis of an article in the Independent that the noble Lord, Lord Blencathra, had, in his former capacity as director of the Cayman Islands Government Office in the United Kingdom, signed a contract that would have involved him providing parliamentary services to the Cayman Islands Government. Among the services that the noble Lord, Lord Blencathra, in the contract agreed to provide were,
“liaising with and making representations to ... Members of Parliament in the House of Commons, and Members of the House of Lords”.
The commissioner found that by agreeing to a contract that would involve the provision of parliamentary services the noble Lord, Lord Blencathra, breached paragraph 8(d) of the Code of Conduct. Although the commissioner found that there was no evidence that the noble Lord, Lord Blencathra, in fact provided such services, the content of the contract in itself established the breach.
Paragraphs 129 and 130 of the Guide to the Code of Conduct place on the sub-committee the function of deciding a sanction in cases where there is a breach. The sub-committee’s decision was that the noble Lord, Lord Blencathra, be required to make a personal statement of apology to the House in terms approved by the chairman of the sub-committee.
The noble Lord, Lord Blencathra, accepted the findings of the commissioner and the sanction of the sub-committee. He did not appeal to the Committee for Privileges and Conduct. Paragraph 132 of the Guide to the Code of Conduct states:
“If the Member does not appeal to the Committee for Privileges and Conduct in the event of a complaint being upheld, the Committee reports forthwith to the House in the terms recommended by the Sub-Committee”.
I therefore report the findings of the commissioner and the sub-committee to the House. Paragraph 25 of the code states:
“The Sub-Committee also keeps the Guide to the Code of Conduct under regular review”.
The Committee for Privileges and Conduct has asked the sub-committee to carry out such a review.
My understanding is that if this report is agreed today, the noble Lord, Lord Blencathra, intends to make his personal statement immediately after the report has been agreed. I beg to move.
My Lords, although I never actually provided nor intended to provide parliamentary services to the Cayman Islands Government in return for payment, I acknowledge and I deeply regret that I entered into a written contract under which I was apparently committed to provide such services as one of 14 specified “consultancy services”.
I now recognise and accept that such a contract was in clear breach of the requirement in paragraph 8(d) of the Code of Conduct that Members must not seek to profit from membership of the House by accepting or agreeing to accept payment or other incentive or reward in return for providing parliamentary advice or services. I misled myself into thinking that since it was understood that I would not be making representations in reality, the wording of the contract did not matter. But words do matter. I was wrong and I apologise to the House for that misjudgment.
When the contract was renewed in November 2012, that reference to providing services was deleted, and in March 2014 the contract ended. I deeply regret having breached the code in this way and the embarrassment to the House that I recognise is caused by such conduct. I offer the House my sincere apology.
Arrangement of Business
My Lords, with the leave of the House, it may be helpful if I make a brief business statement regarding our business tomorrow, and indeed for the rest of today.
Tomorrow we have the Second Reading of the Private Member’s Bill in the name of the noble and learned Lord, Lord Falconer of Thoroton. There are currently 128 speakers on the list for Second Reading. If all Back-Benchers were to speak for four minutes, the House would rise at around 8 pm. I give this advisory speaking time as a consequence of taking soundings from around the House, not just within the usual channels—and I am most grateful for the assistance throughout of the noble Lord, Lord Bassam, the opposition Chief Whip; the noble Lord, Lord Laming, the Convenor; and my noble friend Lord Newby—but I have listened over the past two weeks to Peers from around the House and on both sides of the argument, and those who are yet to decide what their opinion may be.
The representations made to me were very firm. Peers felt that if the speaking advisory time was something like three minutes the House would feel that it was inappropriate and might feel restive tomorrow. Clearly the House would like to have a reasonable time to debate the matter. The House overwhelmingly represented to me that it recognises that tomorrow is a very important day in the debates in this Chamber and that we will be debating a matter not only of great importance to every Member of this House but of greater importance to the public around this country. As a result, I therefore advised that if four minutes were the advisory limit, we might be able to aim at a reasonable rising time of 8 pm. It is not reasonable, of course, in our normal terms, but it is reasonable to allow a full and reasoned debate, and also to take account of the fact not only that Peers are here themselves but that our very presence means that all the supporting staff around the House must remain on a Friday too. The view of the House is that tomorrow we want to engage in a very strong debate and reach a conclusion about the Second Reading by the end of tomorrow, with all voices being heard.
I briefly refer to the rest of today. Then I understand that the noble Lord, Lord Bassam, might wish to speak—or perhaps not. Once the House has completed proceedings on the amendments that have been tabled in today’s business, the Data Retention and Investigatory Powers Bill, my noble friend Lady Randerson will then repeat a Statement on the Hallett review. After the conclusion of the Committee stage of the Bill, Members will have 30 minutes within which to table amendments or, if they prefer, to give notice of amendments to the Public Bill Office. If amendments are tabled for Report, it would then commence after the conclusion of the Oral Statement on the Hallett review. If no amendments are tabled, then Report and Third Reading will be taken formally after the Oral Statement. Then the justice and home affairs opt-out debate will follow on from the conclusion of proceedings to the Data Retention and Investigatory Powers Bill.
Data Retention and Investigatory Powers Bill
Clause 1: Powers for retention of relevant communications data subject to safeguards
1: Clause 1, page 1, line 5, leave out “considers” and insert “believes”
My Lords, Amendment 1 is an amendment of modest pretensions, but I think it significant and worthy of the attention of the House. What it does is address the use of the word “considers” in Clause 1(1) and proposes that that word be replaced by the word “believes”. To make sense of that, I hope that noble Lords will find it helpful if I say that this is a key clause because it gives the Secretary of State the power to issue retention notices to telecommunications operators. As we know, that class of people includes all great companies in the internet and web world. It allows the Secretary of State to issue a retention notice so that they in turn have to retain what are called “relevant communications data” according to that notice.
However—and this is the important point—the Secretary of State can do that only in certain circumstances: namely, according to the clause, when he or she,
“considers that the requirement is necessary and proportionate”.
My dissatisfaction with that formulation is simply that, in Sections 22, 28 and 29 of the Regulation of Investigatory Powers Act 2000, which bestow comparable powers on the officeholders there mentioned, precisely the same formulation contains the word “believes” rather than “considers”. In precisely comparable circumstances, where necessity and proportionality must be present, the officeholder concerned has to believe in that necessity and proportionality.
Some may think, “Well, what’s the difference?”—and, indeed, that is the key question. I think that there is a difference. I think that “believes” is a stronger requirement than “considers”. I looked at the Oxford English Dictionary definition of the two words. “Consider” is defined thus: “think carefully” about something—typically before making a decision. On the other hand, “believe” is defined as “accept the truth … of”—feel sure of the truth of whatever it is. That is what I thought before looking up the words in the dictionary, but I was surprised in discussions with the office of the parliamentary draftsmen to find that there is considerable doubt on their part that there is any difference in this context between “considers” and “believes”. If that be so, to agree my amendment will not change the purport of the Bill one iota—but if on the other hand I am right and there is a significant difference, it would be wise and proper of us to insert “believes” rather than “considers”.
Since Clause 1 refers expressly to Section 22 of RIPA 2000, I am bound to say that I think that a court—we have many noble and learned former judges here and I hope that they will add their opinion—would seek, given a difference of wording, to render a difference of meaning as between Section 22 of RIPA 2000 and what will be Section 1 of the Data Retention and Investigatory Powers Act. As a long-in-the-tooth lawyer, that is the way that I am working, which seems to me to be right and proper.
Why do I think that the amendment is worth while? I am at one with a huge number of our fellow citizens outside this place who are extremely unhappy about the whole of this Bill and the method and manner in which it has been brought forward. The fact that, this very day, we are going to complete all stages is an indication of the radical nature of the procedures adopted to push this Bill through, as was the case in the Commons the day before yesterday.
About eight of our leading libertarian NGOs and, indeed, the Law Society are extremely unhappy about these proceedings and procedures. That is of course because the Bill and RIPA 2000 involve not only the security of the state and the citizens but the protection of liberties—or, rather, the lack of protection of ancient and normal liberties and freedoms. The power to look at the communications data that the Bill covers is extremely important and radical. It blasts a huge hole in the normal protections that we as citizens have vis-à-vis our communications. That was made clear in yesterday’s very good Second Reading debate, in which a number of your Lordships made the point that to pretend that communications data are insignificant compared with the content of the communication just is not the case. There is hugely important, personal, sensitive information to be gathered in terms of communications data.
That is what my amendment deals with. I hope, first, that it will have the approval of your Lordships and, secondly, that my noble friend Lord Taylor of Holbeach may be inclined to accept that the amendment can do no harm and may, indeed, do some good. I beg to move.
My Lords, I am grateful to my noble friend for tabling this amendment. He slightly wandered off it into more general objections, which he might have made at Second Reading yesterday.
On his particular amendment, the requirements in Clause 1(1) of the Bill respond to the European Court’s criticisms of the data retention directive—to ensure that no more data than are required are retained. It is worth reiterating that the judgment concerns the EU data retention directive, not the UK data retention regulations. In the UK we have always taken a tailored approach—if I might use that word—to retention notices. We do not and have never required every communications provider to retain all its data. Ministers have always issued retention notices to selected companies based on the nature of the company and the threat, and we have required the retention only of the data types listed in the schedule of regulations.
Following the judgment, we are putting that good practice in the legislation. This Bill will require the Secretary of State to issue data retention notices to communications service providers on a selective basis: only if she considers the obligation to be necessary and proportionate for one of the authorised purposes. We also add a requirement to keep notices under review. I think therefore that we are in close agreement on what is required.
Ministers have not required an operator to retain data without first going through a serious and careful consideration of the value to be gained by law enforcement and intelligence agencies from the data retained. This Bill ensures that these considerations are law. We feel that it is appropriate for Ministers to “consider” these issues. They have never taken this consideration lightly and I can assure noble Lords that they have no intention of doing so in future. I do not believe that a Minister having due consideration to the issue of a notice could decide to proceed if he or she did not believe that to do so was necessary and proportionate.
In other words, I do not believe that changing the word “considers” would have any material effect. I know that my noble friend met with parliamentary counsel this morning and was told that it does not. Accordingly, I invite him to withdraw his amendment.
Before the Minister sits down—I am keen to have his response to this—if, as he now confirms, the Government think that there is no difference in meaning between “considers” and “believes”, why not have consistency between the language of RIPA and that of the Bill so as to avoid confusion and argument in future?
If my noble friend had been listening to yesterday’s Second Reading debate, he would have understood that it was the view of the House in general, and certainly of the Government, that the review that will be undertaken will indeed look at RIPA and decide whether the terms stated in it are appropriate for future-proofing the legislation. Meanwhile, the Bill is presented to the House in ways that we believe are appropriate to deal with the problems that I outlined when I introduced it yesterday.
My Lords, I regret to say that I find that answer completely unsatisfactory. There is every reason in the world, I suggest, why we have commonality of language, particularly in clauses that expressly relate one to another. If it is felt after the review that the language of RIPA 2000 needs changing, a change could be made to this legislation as well. In the mean time, though, there is going to be confusion, and it is a difficult enough Bill without adding unnecessary complexity to it. However, since no one in the House has risen to support the amendment, I beg leave—with good grace, I hope—to withdraw the same.
Amendment 1 withdrawn.
2: Clause 1, page 1, line 5, leave out “the requirement is” and insert “for objective reasons the requirement is strictly”
My Lords, this amendment returns to a point that I raised yesterday at Second Reading. As the noble Lord, Lord Phillips, pointed out in moving his amendment, Clause 1(1) is crucial to the whole scheme in the Bill and it is extremely important to get the language of it right. I will not go back over the points that he was making in general support of that proposition, but it is with a view to trying to get the language right that I have raised this issue again.
The Minister will recall that I was drawing attention to the wording of the judgment in the case that has given rise to all these problems, and I will come back to that in a moment. I note that in his reply to my comment, at col. 664 of yesterday’s Hansard, he said:
“The noble and learned Lord, Lord Hope of Craighead, asked why Clause 1(1) does not use the wording of the ECJ judgment. The test in the Bill requires the Secretary of State to consider”—
personally, I would accept that as an appropriate word—
“whether it is necessary to require a provider to retain data, but also whether it is proportionate for that legitimate aim. This is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data”.—[Official Report, 16/7/14; col. 664.]
The point that I raised, and to which I return, is that the wording of the judgment is more precisely targeted. The reasons for it are explained in the judgment in a certain amount of detail because they draw attention to the concern that members of the public would have—possibly more by rumour and suspicion than by reality, but concern nevertheless—that their private lives were the subject of constant surveillance. It is for that reason that the court went on to say that it was necessary for,
“clear and precise rules governing the scope and application of the measure in question”,
to be laid down. That was in paragraph 54.
The criticism of the directive was that the “clear and precise rules” that were required were not apparent in that directive. Paragraph 65 is the crucial one. It says:
“It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions”—
the word “provisions” is important—
“to ensure that it is actually limited to what is strictly necessary”.
My amendment picks up two points: the use of the words “objective reasons”, which are in the judgment; and also the phrase “the requirement is strictly” to be added before the word “necessary”. My concern is that, without words that match the judgment, those who seek to criticise or possibly even attack the measure will compare what is in the legislation with what is in the judgment. Lawyers do that all the time. I know that the future of the European courts is perhaps not entirely secure, but the fact is that for the life of this Bill if it becomes an Act, and up until the closure date, both of the European courts are capable of being appealed to. I am quite sure that the last thing the Minister would want is a challenge to this measure on those grounds in those courts.
My amendment is intended to be helpful. I am not trying to undermine the Bill. I am just trying to suggest that the language of it should be more precisely worded. I do not know where the phrase “necessary and proportionate” comes from. The ECJ judgment says that proportionality is part of necessity, so built into the idea of necessity is proportionality. I do not complain about the fact that they are both there—it is a useful combination of words—but it is the other bits, the strict use of this phrase and the need for objective reasons, that are necessary.
If one thinks through the way in which the exercise will be conducted, I have no doubt that the Secretary of State herself will not be taking all these decisions. This formula would, in fact, be instructing those on whom she relies to apply their minds to the requisite standard, and to provide convincing, objective reasons for the measure that is suggested should be taken.
I am grateful to the noble Lord, Lord Blencathra, for drawing my attention to an examination of the wording in the draft communications data Bill, as it then was, by the Joint Committee on the draft Bill. In paragraphs 62 to 67, there is a discussion about the language. One point that emerges from that discussion, which is very relevant to what I am trying to say, is that the wording is necessary, having regard to the fact that:
“Once a power is on the statute book”—
as this would be—
“it is available to be used, and also to be misused or abused, at any time in the future”.
Undertakings are all very well, as are all the various other protections that the Minister referred to yesterday as part of the United Kingdom’s system; but at the end of the day, it is the wording that directs the nature of the exercise to be carried out by those responsible for doing it that really matters.
That is why, in my experience, these courts are not all that impressed by what we tell them about how our system operates and the number of regulators and investigations that go on to check that everything is being conducted properly. They will look at the language in the statute. That is why it is so important to get the wording right if this measure is to stand up to scrutiny.
It is with that justification that I move this amendment, in the hope that the Minister will give further consideration to it, in the very short time available, to see whether it would not be wise to tighten up the wording. I think that it is in sympathy with what the Minister himself would wish to be done anyway. It is getting the wording on the face of the Act that matters so much. I beg to move.
My Lords, I rise to support the noble and learned Lord, Lord Hope, in his amendment. Before doing so, I hope that it may be in order to say a word of appreciation to the Minister—on my behalf, but I dare say that I am speaking also on behalf of others who spoke in yesterday’s Second Reading debate—for obviously having worked late through the night with his officials. He produced a letter to my noble friend Lady Smith, a copy of which we all received this morning. I make that point because—given the circumstances of emergency legislation, which always, quite correctly, arouses scepticism, doubt and worry in people’s minds—it is particularly important that the Minister should give very careful answers to the many points raised in yesterday’s debate.
It would be wrong to say that the Minister has answered in this letter every question that was raised in the course of the debate. Indeed, he has not actually answered every question that was raised by the Constitution Committee’s report. For example, the Constitution Committee pointed out that the Joint Committee had said in 2012 that there was some difficulty or doubt about non-British companies being prepared to continue to co-operate, not so much on the retention of data but on the provision of communications content. The Government might have been advised to address that criticism and could simply have said, “Maybe we got it wrong, in retrospect, and should have taken notice of the Joint Committee’s observation back in 2012, rather than ignoring it”. However, that is just one point. I think that the Government have made an exemplary effort in a very short space of time to deal seriously with the matters that were raised in yesterday’s debate. It would be quite wrong for nobody who asked critical questions yesterday to recognise that effort and to thank the Government for it.
The House is very much in the debt of the noble and learned Lord, Lord Hope, who has done some useful homework and gone over the actual ECJ judgment, which is the cause of the drama that we have been discussing over the past 24 hours, to see how best we could change the wording and ensure that it is such as to bring to an absolute minimum the danger of another challenge from the ECJ. It is an extremely practical and helpful approach. I hope that the Government regard it in that light and will take advice from a distinguished jurist and accept the changes that he has very reasonably put forward.
I would just add to the arguments which the noble and learned Lord has used that I think it would be a matter of added assurance to the public if the words “strictly necessary” were put into this text. There is a difference between “necessary” and “strictly necessary”. Faced with the word “strictly”, any civil servant or Minister confronted with the issue of whether he or she ought to be issuing an instruction to a data communications company to provide data will have to give at least a few seconds’ additional pause to ask him or herself whether the “strictly” criterion really is being met. You cannot get much stricter than “strictly necessary”, and that means that the greatest degree of care, caution and reserve will be brought to bear on the decisions that are made in this matter.
No doubt there is a long jurisprudence—I am not a lawyer, so I am not familiar with it—relating to the difference in courts’ interpretation of “necessary” as against “strictly necessary” over the centuries. However, even without being a lawyer, anyone will be aware that he or she is treading on very sensitive ground in deciding that something is “strictly necessary”. He or she will need to be absolutely certain in his or her own mind that he or she has arguments sufficient to justify that decision were it ever to be questioned in a court of law.
Doing this is not only sensible from a practical point of view, making it less likely that there will be further legal uncertainty and further legal challenges; it is very sensible from the point of view of reassuring the public that the Government are genuinely not seeking powers that go beyond the “strictly necessary”, in the normal sense of that term.
My Lords, I support the amendment of the noble and learned Lord, Lord Hope. After what he said yesterday I did some swotting last night. It is important for the legislation to get this sort of wording right. It is quite divisive legislation because of the speed at which it has taken place. This is a sensible amendment.
My Lords, I also support the noble and learned Lord, Lord Hope of Craighead. At Second Reading, the noble and learned Lord made a compelling case for addressing the precise wording in the European Court judgment. With the greatest respect to my noble friend the Minister, his response to that assertion did not quite come up to the level of the case made by the noble and learned Lord. I also support the comments of the noble Lord, Lord Davies of Stamford, in that it would not only help lawyers to avoid court cases as a result of not addressing strictly the wording in the judgment but it would also be reassuring to the public to have the wording as suggested in the amendment.
My Lords, I am grateful to the noble and learned Lord, Lord Hope, for tabling his amendment as it gives us a chance to talk about these issues. Perhaps he will not mind if I turn first to the noble Lord, Lord Davies of Stamford, and thank him for his kind words about the work that has been done by my officials overnight. They exemplify the sort of support that the Civil Service can give to Ministers. It has been greatly, I hope, to the advantage of noble Lords to have this information available.
I will deal with the issue that the noble Lord raised, which was the point in the Constitution Committee’s report about why we are dealing with these provisions now rather than in 2012. As the Government made clear last week, some companies have already now started to question whether they are under a duty to comply with their obligations under RIPA. The details are obviously sensitive but, as the Prime Minister made clear, we are approaching a cliff edge. A failure to legislate could result in a damaging loss of capability. We were discussing earlier, when I was dealing with the Urgent Notice Question, an area where that capability was necessary. If companies cease to comply, the security agencies will lose the visibility of what targets are saying to each other and in turn could lose the ability to understand the threat that they pose. The Opposition have been briefed in detail on the issue and the Intelligence and Security Committee is well aware of the challenges that we face. Indeed, I happened to meet the chairman of that committee, Sir Malcolm Rifkind, in the street on my way to work this morning.
I thank the Minister for giving way. I was referring to paragraph 11 of the Constitution Committee’s report, which says:
“It is not clear why these provisions need to be fast-tracked … There is evidence that the Government have known of the problem for some time. The Joint Committee on the Draft Communications Data Bill noted in its report (published in December 2012) that ‘many overseas CSPs [communication service providers] refuse to acknowledge the extraterritorial application of RIPA’”.
The point in the committee’s report was simply that the Government could have reacted to the earlier Joint Committee’s suggestion in 2012 that there was a problem here, a lacuna, a danger. The Government have known that for about two years. It would have been more dignified for the Government simply to say, “On this occasion, we missed a trick. We should have responded then. I’m sorry, chaps. There is a serious problem and we have to respond now”. Everybody would understand that.
I am sorry but I have to ask the noble Lord to read in Hansard what I have just said if he fails to be convinced as to why the Government are legislating now. I will leave it at that because I do not suppose that I will convince him on the principle, whatever I say.
My Lords, I rise in defence of the Minister because the Intelligence and Security Committee discussed this point with the director of GCHQ on Tuesday morning in the short time available. There have been developments since 2012 that have affected the attitude of the providers—for example, the activities of Mr Snowden. The committee was satisfied that there is a serious risk of loss of visibility of people who ought to be under observation and that the Government’s arguments that this is an urgent matter were justified.
My Lords, I rise briefly because I think that perhaps my noble friend Lord Davies has been misunderstood. I do not think that he doubts for one instant the emergency situation that necessitates this legislation. His argument is that the Government could have acted sooner. I will not enter into a debate as we had a long debate yesterday, but it remains our contention that the Government could have acted sooner on this issue. But there is a time imperative now on this legislation.
I will not argue with the noble Baroness if she wants to make that judgment of things. The Government have to make decisions for themselves on these issues and they do so in the knowledge of the facts, as the noble Lord, Lord Butler, explained to the House. The Government make judgments at the time as to what is necessary, and in this case they have made the right judgment.
We have had a side-show. I now turn to the substance of the amendment in the name of the noble and learned Lord, Lord Hope. I share his wish to ensure that the new regime for data retention that we are putting in place through the Bill is fully compatible with the European Court of Justice, and that is what we are doing. As I explained at Second Reading, while the EU data retention directive was struck down by the European Court of Justice, the ECJ judgment was about the EU data retention directive. The court did not rule on any member state’s legislation and did not take into account the many safeguards which I explained we have in our domestic regime. Many of the ECJ’s concerns are already addressed by the UK’s domestic legislation. Crucially, the judgment explicitly recognised the importance of data retention in preventing and detecting crime.
Nevertheless, although the UK’s existing data retention regime is already a very strong one, with stringent safeguards and oversight, in order to respond to elements of the judgment, we are extending the existing safeguards in a number of ways. Details of those safeguards are contained in our factsheet on that issue, which is available from the Printed Paper Office. However, I will elaborate on them here.
The regulations made under the Bill will replace the 2009 data retention regulations. They maintain the status quo, while also adding additional safeguards in response to the ECJ judgment. In particular, the regulations set out what must be specified in a data retention notice and factors to be taken into account before giving a notice; place a requirement on the Secretary of State to keep such notices under review; set out the security requirements which apply to data retained under a notice; require providers permanently to delete data when they are no longer under an obligation to retain them; require providers to ensure that data are not disclosed except in accordance with the access procedures in RIPA or a court order; and provide for the Information Commissioner to audit compliance with the requirements of the regulations. A provisional draft of those regulations is also available from the Printed Paper Office.
I am satisfied that with those extra safeguards we are on even stronger ground in asserting that the UK’s data retention regime fully meets the requirements laid down by the ECJ. That judgment does not require us to adopt every single bit of wording in the judgment. On the specific details of this amendment, the test currently in the Bill allows the Home Secretary to consider not just whether it is necessary to require a communication service provider to retain data, but also whether the interference that retention involves is proportionate to that legitimate aim. We believe that that is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data. The test of necessity and proportionality is a well established legal principle, as the noble and learned Lord well knows, which is already a notable feature of elements of the existing RIPA regime.
I am, as ever, grateful to the noble and learned Lord for sharing his considerable experience and expertise with the House, but I hope he is satisfied that the clause simply seeks to build on those long-standing principles, providing an extended safeguard and appropriately reassuring the public. We have a strong test here, which is fully in the spirit of the court’s judgment. Accordingly, I do not believe that the amendment is necessary, and I invite the noble and learned Lord to withdraw it.
My Lords, having supported the Minister on the point made by the noble Lord, Lord Davies, may I now say to him that he is being unnecessarily negative about this? He has explained why he thinks the amendment is unnecessary, but he has not explained what the positive arguments are against it. It seems to me that it can only be helpful. Unless there is some positive reason for rejecting the amendment, I would urge him to consider again before Report. The problem is that we cannot repeat this amendment exactly on Report, and it would be difficult to improve on the wording already suggested by the noble and learned Lord, Lord Hope. I ask the Minister whether he could consider again the idea that this amendment is designed to be very helpful to the Government. The fact that it may not, in the Government’s view, be strictly necessary, does not seem to me a convincing argument as to why it should be rejected.
My Lords, we are talking about what the Secretary of State considers. I wonder whether the difficulty could be resolved if the Minister were to state formally, on the record in Hansard, that the Secretary of State must consider that,
“for objective reasons the requirement is strictly”
My Lords, I rise with some temerity to disagree with the views expressed from the Benches opposite, but it seems to me, as a matter of principle, that when the Government and the Parliament of the United Kingdom consider how to introduce legislation consistent with a decision of the European Court of Justice, it is the substance of what the Government and the Parliament of the United Kingdom are providing which is important. It should not be necessary, and it would not be a healthy precedent, if Parliament took the view that every time we had to amend our legislation in order to comply with a judgment of the European Court of Justice, it was incumbent upon us to adopt language identical to that found in the judgment. So there is at least the vestige of a point of principle here, and that point of principle leads me to support the view expressed by the Minister.
My Lords, I support what has just been said by my noble friend Lord Howard of Lympne. I speak not as a judge but as someone who has drafted many skeleton arguments to take before senior courts, and given a phrase such as “strictly necessary”, I would spend my time in preparing a case by looking for authorities decided by the courts in which there was a difference between the terms “necessary” and “strictly necessary”. I have spent some time doing so this morning, and I have failed to find such a case so far—although of course I will defer to the noble and learned Lord, Lord Hope, if he can find one for me. Judges are often so much better informed than those who appear before them, and I feel a little as if I am in that situation now.
However, speaking for those of us who are paid, sometimes a great deal of money, to create a difference where none exists between a phrase such as “strictly necessary” and the mere word “necessary”, I would say to the Minister: please avoid tautology. It is expensive, and not terribly helpful.
My Lords, the point made by the noble Lord, Lord Howard, is important, and I accept it. There is a danger of raising a precedent here. On a point of clarity for a simple sailor, may I ask: if an amendment is taken today, is there a mechanism within this urgent high-speed way in which we are doing things to get the change back to the Commons to get it sorted out, or are we talking in a vacuum, because nothing has been organised to achieve that?
I am sure the usual channels make arrangements for any such potentiality. I am very grateful to my noble friend Lord Howard of Lympne for the way in which he presented the important point that the British Parliament and British law lie at the bottom of all this. We have had a chance to consider this matter. I do not know whether beliefs have been changed by our consideration of the previous amendment, but at least that consideration has been valuable. However, I still urge the noble and learned Lord to withdraw his amendment.
My Lords, I am extremely grateful to the Minister for his reply and to all those who have taken part in this debate. I wish to make one or two further points. First, the Minister is, of course, right that the judgment was concerned with the directive and not with any UK measure: that is the nature of the jurisdiction it was exercising. However, when lawyers get to work in response to clients’ demands, some of whom have very deep pockets—we are dealing in this field with people who may well be in that category—people start thinking about things and drawing analogies with what is said by courts in analogous situations. That is the significance of the wording of the judgment so far as the wording we have put in the Bill is concerned.
As I think I explained, my intention in bringing this matter before the Committee for discussion is so that we can have a fuller discussion of the detail than we could have had yesterday at Second Reading. There is, of course, a lot of force in what the noble Lord, Lord Howard, says and one does not want to parrot the wording in European judgments just for the sake of it. However, there is the broader point made by the noble Lord, Lord Davies, earlier that there is a reassurance to the public, too, in adopting these words, which were chosen by the European court in order to meet what it saw as a concern about the use of this system. Therefore, I am not disappointed that I brought this matter forward as it requires very careful consideration. I hope that the Minister will think a little more closely about it before we get to Report, although there would obviously be difficulties if I were to bring the matter before the House again. However, for the time being, I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Clause 1 agreed.
Clauses 2 and 3 agreed.
Clause 4: Extra-territoriality in Part 1 of RIPA
3: Clause 4, page 6, line 31, after “kingdom” insert “in accordance with the laws of the country where the person is”
My Lords, this is an amendment of a rather different character. It is really a probing amendment and it picks up a point that I also raised at Second Reading yesterday evening. In order to understand the point, one has to know a little more than the wording on the Marshalled List. I draw attention to a provision in the Bill which has to be read together with provisions in RIPA, in particular Section 22. Section 22(6) states:
“It shall be the duty of the … operator to comply with the requirements of any notice given to him under subsection (4)”.
The last but one subsection of that section—subsection (8)—states:
“The duty imposed by subsection (6) shall be enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief”.
However, Clause 4(10) of the Bill seeks to insert in that subsection of RIPA the words,
“including in the case of a person outside the United Kingdom”.
I am not clear whether the enforcement measures which are forecast by the provisions in Section 22 of RIPA are intended to be applied extraterritorially. This is an important point of practice, concerning how one achieves a measure such as an injunction or some other measure by service upon somebody abroad, and then how this is enforced against that person.
I practised for 24 years in the Court of Session, and was its president for the past seven years. I am very well aware of the problems one has in dealing with people outside the jurisdiction. Some of these problems indeed related to people in England, not Scotland, and one had to be extremely careful that measures were in place to enable any order a court pronounced to be enforceable. Underlying this is the point the Minister made yesterday, that because of the challenges which are now being made one wants a system which is properly laid out and is foolproof, which will be effective and will command respect.
My concern is that there may be something lurking here at the very back of Clause 4 which is defective, because it has not been properly explored and thought through. Like the noble Lord, Lord Davies, I was extremely grateful for the letter written by the Minister’s advisers, which covered a lot of ground in great detail. However, on this point there is a reference to my intervention. The very last sentence on the bottom of the third page states:
“Where absolutely necessary, RIPA provides for enforcement by injunction through domestic courts”.
Indeed it does, and domestically there is no problem. The question is whether it is intended that it should be enforceable in courts in other parts of the world, and whether attention has really been given to the mechanisms that would be necessary to achieve that, in discussion with the various courts including the Court of Session. If the noble Lord was able to guide us a little more on that point, that would be extremely useful. It would reassure us that we are passing a measure which will command respect throughout the world, as it is intended to do. I beg to move.
My Lords, I too thank the Minister for the excellent letter his officials prepared overnight. I am very glad to see that the quality of Home Office civil servants remains as high as it was when my noble friend and I served in the Home Office. I do not wish to follow exactly the point made by the noble and learned Lord, Lord Hope of Craighead. I did not put down an amendment to remove this provision from the Bill, but I hope that your Lordships will permit me to make a few remarks related to the enforceability of Clause 4 overseas. As I understand it, the whole point about Clause 4 is—as we said yesterday—to give reassurance to the huge American service providers, largely based in California, that they have a legal duty of some sort to comply with. That would allow them to say to all their customers that, while they religiously protected their data, they had been served a judicial warrant or some form of legal prescription from the United Kingdom with which they had to comply.
When the Minister goes back to the department, I would like him to look again at the MLAT system. I do not want a detailed reply from the Box today, just an assurance that he will read about what MLAT does. MLAT is the mutual legal assistance treaty, and we have many of these bilateral treaties with many countries, including one with the United States.
When my committee asked the Home Office why it could not use MLAT for enforcement, it said—rightly—that it was a bit bureaucratic and a bit slow. The Home Office also said that the main problem was that gaining assistance from the United States Department of Justice under MLAT required initiation by the CPS, not the police. It therefore did not regard MLAT as a real, live tool which it could use on a day-to-day basis to investigate crime. The response of my committee was, “Well, if that is what has already been agreed with the United States, but the tyres on that vehicle are flat”—to borrow the metaphor used yesterday by the noble Lord, Lord Armstrong of Ilminster—“and it is going too slowly, go back to the United States and renegotiate a new, faster MLAT as a bilateral treaty”.
I conclude by urging my noble friend not to respond in detail but to give me an assurance that the Home Office will once again take seriously paragraph 253 of our report, in which we ask the department to address this problem forthwith, go to the United States, use our special relationship and see if we can get a faster-working MLAT, which would again be a backstop to help Clause 4 to be enforced in some way in the United States.
I can say to my noble friend Lord Blencathra that although I have not read MLAT, I have been present when its provisions have been discussed. He will be aware that one of the provisions that we are hoping to set up involves appointing a diplomat to look at how we handle these matters. Indeed, our whole approach to this issue is about mutual co-operation. It is not adversarial, although we understand that the law has to assume adversarial premises and the definitions that might apply in such circumstances, but that does not undermine what we are trying to achieve.
I am again grateful to the noble and learned Lord for tabling this amendment. He spoke articulately at Second Reading on the difficulties of enforcing warrants across jurisdictions. He is probably mindful of that, given his Scottish experience in relation to English law. I understand that his intention is to improve the prospects for successfully enforcing obligations under RIPA on overseas companies, and clearly none of us could object to that.
Clause 4 makes clear that the obligations under RIPA apply equally to persons overseas who are providing telecommunications services to customers in the UK. It also makes it clear that those obligations are enforceable by injunction through the domestic courts. We have been clear throughout the passage of the Bill that we are not altering or extending the powers under RIPA. Accordingly, the provisions in Clause 4 simply make clear the status quo. It is on that basis that the House of Commons has consented to the Bill, and it is the basis on which it has been presented to this House.
The noble and learned Lord’s amendment would go much further than this, by purporting to allow for the enforcement of obligations under RIPA through overseas courts. As drafted, it would do this only in respect of requests for communications data. However, I assume his interest is in the enforceability of obligations under RIPA more generally. In view of the clear intention of the House of Commons, and of noble Lords who have supported this Bill on the basis that it does not introduce new powers, this is not an amendment that the Government could support. The issue of enforcement overseas is important but it is not a matter that we can address through the Bill before us.
As I have said, the Government’s approach under RIPA has always been to work with companies. We hope that making clear the obligations under RIPA will avoid the need for enforcement action. Where we have no option but to enforce, we believe that the prospect of sanction in the domestic courts—I repeat, the domestic courts—is a threat sufficient to compel many international companies to co-operate. That, however, is not our first position, which is to work with companies. Where necessary, there are established protocols for seeking recognition of a domestic judgment in foreign jurisdictions. It may be possible to strengthen our position in respect of this but these are complex issues of law, and are not matters that we can deal with today, when we are fast-tracking legislation through Parliament. We will look for the new tyre for our puncture when we consider the review that will take place after the enaction of this Bill, which has been introduced in the context of a pressing need to put the law beyond doubt. That is what the Bill is about, and only that.
I appreciate the noble and learned Lord’s intention with this amendment, and his useful interventions, including those at Second Reading, but the amendment is unnecessary. I am sure, though, that the issue of enforcement overseas is one in which subsequent reviews of powers and capabilities will be considered, and in which he will want to take part. I draw noble Lords’ attention to the fact that there is a copy of the paper, Senior Diplomat Draft Terms of Reference, in the Printed Paper Office. It states that one of the tasks of this diplomat will be:
“To consider a range of options for strengthening existing arrangements, including … through Mutual Legal Assistance Treaty systems”—
my noble friend was on the ball there—
“mutual recognition of national warrants; and … direct requests from law enforcement and intelligence agencies to the companies which hold the data”.
That is why this appointment is seen as being so important. I hope that with those assurances, a clearer view of the Government’s objectives in bringing this Bill forward, and having had an opportunity to consider the issues that the noble and learned Lord has raised, he will withdraw his amendment.
My Lords, I am grateful once again to the Minister for his helpful and full reply. I take absolutely the point that it is not the intention in the Bill to expand the existing law, and it would certainly not be my wish to disrupt that policy, which would be contrary to the basis on which the Bill passed through the other place.
I am still left in some doubt as to the purpose of Clause 4(10), which excited my interest, because it states,
“including in the case of a person outside the United Kingdom”.
I am tempted—but I shall not succumb to the temptation—to ask the Minister for an example of case where it would matter whether that provision is in the legislation. It may be that some nods and winks would give colour to the suggestion that this kind of thing may have happened in the past. It is because I have great difficulty in visualising the purpose of the provision that I am still in a state of some concern as to whether it is useful to have it there at all. I am not, however, asking for it to be removed. In view of what the Minister has said, I am happy not to press the amendment, which would add additional words. I shall leave it at that and I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
Clause 4 agreed.
Clauses 5 to 7 agreed.
Clause 8: Commencement, duration, extent and short title
4: Clause 8, page 8, line 9, leave out “2016” and insert “2015”
My Lords, the amendment is also in the names of the noble Baroness, Lady Kennedy of The Shaws—who unfortunately cannot be here, although those who heard her speak last night will have a good idea of what she might have said—the noble Baroness, Lady Kidron, and my noble friend Lord Hodgson of Astley Abbotts.
We have something of a paradox of timing in relation to the Bill, in that, as we all know only too well, this measure has been rushed, helter-skelter, through both Houses. It is fair to say that the vast majority of Members in both Houses are deeply worried by all that but have none the less accepted the view of the Government as to the need for that expedition. On the other hand, we have a sunset clause in the Bill—designed to be some sort of reassurance—requiring the Act to be repealed in two and a half years’ time, at the end of 2016. The point behind the amendment is self-apparent, namely that if six months is too short—that was the proposal in the other place, that the repeal should take place at the end of this year—to wait two and a half years hence is too long. That is why we have suggested a repeal date of 31 December next year.
It is common ground that this complex measure—I think the noble Baroness, Lady Kennedy, called it “obscurantist”, and she is a lawyer—which is wedded to RIPA 2000, itself a highly complex piece of legislation, needs review and is being reviewed from various quarters, as we have heard from my noble friend Lord Taylor. I am sure we are all very grateful for that. However, is it not also the case that, because we have not had a chance to consider the Bill properly, we do not know whether there are serious lacunae in it? The proposition of those of us behind the amendment is that to wait two and a half years before anything must be done about those deficiencies is just too long. We have suggested this compromise of a year and a half from now.
I finish by repeating the importance of the Bill for our reputation as a House of Parliament and for Parliament as a whole. Although we may be satisfied that what we are doing is necessary, appropriate and proportionate, I am afraid millions of our fellow countrymen are not of that view. There is therefore a wider issue behind this amendment. It will provide some reassurance that the delay—it will be seen as such—in allowing a thorough review of this legislation, which will find an outlet and remedies by the end of next year, is a reasonable compromise; to leave it for two and a half years is not. I have that phrase of John Pym, in the other place in 1642, ringing in my ears. He said in that tense Parliament that we must not lose the,
“vigour and cheerfulness of allegiance”,
of our fellow Britons. I beg to move.
My Lords, I oppose the amendment. I was unable to speak yesterday. I do not propose to make a Second Reading speech, but I wish to make a case for the Bill to remain as it is. I first draw attention to my declaration of interest in the register as a member of the independent surveillance panel, put together by the Royal United Services Institute for the Deputy Prime Minister’s work, which will go on for the next year and beyond the next election.
Frankly, we need time to do the job: 18 months is not long enough. I am not even going to use the excuse of a potential change of Government after the general election. The fact is that it is important that the sunset clause is there and it is important that it cannot be extended: it will go. However, time is needed to do the job properly. It is not as though nothing is going to happen for two and a half years. It will take two and a half years to pull together the reviews of RIPA and the other reviews that are taking place to bring legislation to Parliament very early in 2016, because this will finish at the end of 2016. The idea that it has been left to the last minute is nonsense. We need that time to do the job, and to explain and consult.
Public trust has to be secured. I am convinced that the fair-minded public, when they are treated as mature adults, will support an accountable system for interceptions and surveillance, rather than take what is said by unaccountable NGOs and newspaper editors. Contrary to what was said earlier on, the public have no idea what exists in the system in terms of these arrangements. We have to look at the use of modern technology.
Take RIPA: I will use one example from yesterday’s debate. I was not in for all the speeches but I heard two or three. I am sorry that the noble Lord, Lord Blencathra, has now gone, because he made a cheap point about the egg inspectorate using RIPA. You can cheapen the debate, but in the past few years people have gone to prison for multimillion pound frauds of restamping eggs, which undermines our economy and cheats the public. The egg inspectorate had to know about this. It is only six people. It should not be dismissed: it is part of the economic well-being of the country. Millions of eggs—billions, actually, because eggs are counted in billions, rather than millions—were being brought in from France unstamped. They were processed in a factory in Bromsgrove and there was a tip-off. They went to prison for a multimillion pound fraud against our economy. The idea that the egg inspectorate should not be able to use RIPA is preposterous, but you can make a cheap joke about it if you do not give any background to it.
The point I want to make to the Minister is that the use of language is absolutely crucial. I understand that the drafting of legislation is governed by parliamentary draftsmen. However, that is not always effective in addressing those who want to oppose, such as those who accuse the Bill of being “Orwellian” or of “snooping”. They are very effective and emotive words that might take 10 minutes to rebut in an interview, which is not really possible. However, nobody uses those words against the retailers in this country, who snoop and use information from the purchasing patterns of millions of citizens in this country. It is used only against people who are basically trying to protect our country.
The Government need to wake up to the use of language. I will give one more example before I ask the Minister to take something away. This is similar to the GM debate, where “Frankenstein food” and “contamination” are emotive words. They are not scientifically sound or scientifically based, but they make the headlines. Again, it would take those who wish to put the case minutes to do it, so they cannot.
I must thank the Minister, because the last time I gave him a suggestion like this I had a reply two days later from the Permanent Secretary at the Home Office saying, “Thanks very much, we’ll do that”. I hope that today will be no different. The Government should seek advice during the reviews, although not necessarily on how the legislation is worded, as parliamentary counsel need to do that and get the thing right. They should use experts in forensic linguistics, and in language and law, which are specialist studies in some of our universities. That is crucial. It is not necessarily forensic in that sense, but the examination of language, what it means and how it relates to what people outside think it means, is important.
We have to win over the public. It is not a PR operation but a scientific one. It needs something like what I came across during my time at the Food Standards Agency: the right-brain, left-brain test. That was how we, as regulators, found that we were using the language of regulators to talk to the entrepreneurs we regulated. They did not understand what we were saying and always opposed us. We were not taking on board their needs in our language. These issues are crucial to the way we sell to the public the need to have powers and to check on who is using them, so that, in some ways, people are comfortable in going about their lives not being spied on, but in the knowledge that, if they are spied on in secret, it is being done by a system they have approved of, that they know is accountable to the public, and that those who are doing it are being checked up on.
If that can be put across in a way that the fair-minded public will accept, we will have cracked it because we will not be being ruled by the headlines of those who seek to undermine us, make cheap cracks or seek to undermine our protection. We need to get it right because it is much better if the public is with us. I am not necessarily attacking the press or the NGOs, but they have an open goal. They get away with too much because they are not accountable. The public will know about it only when something goes wrong. This legislation is to stop something going wrong; that is the issue.
The Government should take the period of the reviews to look at the way in which the public, who are our masters, have explained to them what is happening in their interests, but without necessarily having everything disclosed to them. It has to be done in a better way than it has been to date. We should not change the time period. Being practical, we need the two and a half years: it will take 18 months to do the work and 12 months for the legislation to go through both Houses of Parliament.
My name is on this amendment. The noble Lord, Lord Rooker, always speaks with vigour and passion about his points. He will understand that I would like to come to the point on the timetable in a moment. He did not address the point made by my noble friend Lord Phillips that the legislation has lacunae—gaps—in it which need to be filled as quickly as possible. This is a simple amendment and I will not detain the House for long.
I and other Members accept that the Government have to have this Bill. We have had concerns about extensions and clarification of powers, and concerns about whether new technology—metadata and so on—entitles a greater degree of investigation of our personal freedom than is perhaps understood by the Government. My noble friend on the Front Bench has done his very best to reassure us. I add my thanks to those of others that he has received for having taken the trouble to produce overnight the long letter answering our questions. The bottom line is that the security services and the police have told us that they need this Bill. They deserve our support because they work long hours unsung on our behalf to keep us safe. Therefore, this is a Bill they must have.
Equally, it is recognised that this is a flawed Bill and that the Government would rather not be in the uncomfortable position in which they find themselves. Moreover, it is a flawed Bill being applied to a flawed substructure; namely, the Regulation of Investigatory Powers Act. Those of us who were here last night had the pleasure of hearing my noble friend Lord Blencathra—despite the cheap jibe about eggs to which the noble Lord, Lord Rooker, referred—do a demolition job on RIPA, at the end of which there was hardly a brick on brick left standing. He described the Bill as not fit for purpose. Therefore, the shorter the time that these two pieces of inadequate legislation remain on the statute book, the better for our society.
As my noble friend will say—and as the noble Lord, Lord Rooker, made clear in his remarks—time is needed for research, reflection and consultation, and rushing is not a good idea. The issue is the length of time. Clearly, I could not have put my name to an amendment that stated that it should be six months, which would not provide the appropriate time to carry out those detailed negotiations. In 12 months from now, we shall be in the middle of a general election campaign. Such campaigns are bound to be conducted in primary colours to gain public attention. We are balancing the difficulties of issues of privacy and national security that have nuances and require light and shade, which do not lend themselves well to the hurly-burly of a general election campaign.
I do not think that 12 months would have worked, either—but that does not mean that 12 months cannot be used to undertake some of the preparatory work to which the noble Lord, Lord Rooker, referred. This is not primarily a party-political matter; it is a matter of national security, and how we balance privacy and the need to keep us all safe. My feeling is that a great deal of work could be done during those 12 months and a set of recommendations could be made available to an incoming Government in May to June 2015.
Bearing in mind that this is a very important matter and that we understand that we must get on with it, there is a balance of advantage for making sure that we move as quickly as possible—not to put another patch on the tyre but to have a new tyre on the statute book which is fit for purpose. Given the importance that we attach to this, I do not believe that the timetable of 18 months from now is unachievable.
In conclusion, I gently say to my noble friend on the Front Bench, who has put up with a lot, and to the noble Lord, Lord Rooker, that they have fallen victim to one of Parkinson’s laws. Members of your Lordships’ House will recall that C Northcote Parkinson had a number of laws, one of which was that the task expands to fill the time available for its completion. There is a real danger here that we will fall foul of that. This is too important an issue to be left to fester for a minute longer than it needs to, which is why I think that 18 months, with vim, vigour and resolution, is not unachievable.
My Lords, I join those who urge my noble friend not to be attracted by the arguments presented this afternoon for reducing the time available for the full consideration of these matters. I also join those who thank him for the assistance we have been given in the letter that was sent this morning to some, and possibly all, of us who are present. I also thank his officials who put up with some pestering telephone calls this morning, certainly from me.
I remind your Lordships that the sunset provision does not provide for revival of this legislation by statutory instrument. The sunset provision ensures that the legislation falls completely on 31 December 2016. We therefore have to allow due and proper time for consideration of these matters.
I join the noble Lord, Lord Rooker, in what he said. I am sure that the House was very pleased to hear that he is a member of the RUSI panel that has been put together with some difficulty and over considerable time at the behest of the Deputy Prime Minister. As I understand it, the panel will consider a substantial amount of evidence, not just from within the United Kingdom. It will be making comparisons with other jurisdictions, and the range of talents on the panel goes right across the disciplines that deal with this issue. We have to allow time for the RUSI panel to do its work.
A number of other reviews are also taking place. Shortening the timescale for the new legislation would undermine the extremely important review of RIPA, which will be a thorough and systematic review of the Act. Let us not forget that completely new legislation has to be in place before the end of 2016. We know in this House that, very properly, that legislation will be the subject of detailed debate. We know that some of my noble friends—I am looking at my noble friend Lord Strasburger who quite properly will be one of those—will put down amendments that will challenge some of the thinking behind the legislation that will be presented. That legislation will take some months to go through this House and we must be ready for it with reviews that have really looked at every issue.
Perhaps I can be forgiven for using a couple of words of Latin, which would probably be deprecated by the noble and learned Lord, Lord Hope, if he were sitting in court. I am pleased to see that he is shaking his head. Perhaps this is the time when we should—
Not so long ago, I went to Cranston’s tea rooms in Glasgow and tried to order some lunch. Plainly it was because Latin was being spoken that I had such difficulty. What I was going to say, using two words of Latin, was that perhaps this is a time when we should festina lente.
My Lords, my name is also on this amendment. The question of public trust has been raised, and this amendment is an attempt to restore public trust. The Minister referred yesterday to the overwhelming support in the other place for this emergency legislation. Of course if one looks at the vote in terms of numbers alone he is completely correct. However, the most cursory glance through the past two days of Hansard reveals that even those who support this Bill have grave reservations about a system of warrants that very experienced legal colleagues are suggesting may prove unenforceable, and about whether this Bill has answered all the findings of the ECJ reservations over whether Clause 4 represents an extension of powers. Very importantly, there are also reservations about the level of understanding of the technology itself, and exactly what gathering “who, what, when and where” can mean for the individual. These reservations have been expressed in other places, such as the Constitution Committee and the Law Society, and among senior legal experts as well.
Like others, I absolutely accept that the noble Lord has done his utmost to reassure the House on all points. Even if he is completely correct that this indeed represents business as usual, there remains the outstanding case that this Bill is a response to the ECJ ruling hurried through in fear of an impending judgment in the domestic courts, and that it is sitting on top of RIPA legislation that is generally accepted as inadequate. This Bill has gone through the House so rapidly that it is impossible for it to incorporate effectively all the expertise and views that have been given.
It is not overwhelming support for the legislation that has resulted in there being only four amendments this morning. It was the lack of time to articulate and design useful and necessary clarifications without undermining the needs of the security and intelligence services, which, I say again, nobody present would wish to do. A sunset clause two and half years hence gives no comfort to those who suspect that this Bill came to the House deliberately without time to challenge it. December 2015 is a reasonable time for review, parliamentary scrutiny, public debate and collective agreement. Three days certainly were not. I commend the amendment to the House.
My Lords, the noble Lord, Lord Phillips, spoke to me before the debate to ask if I would be supporting this amendment, so I have thought about it in some depth, and the answer is that I cannot. I am very supportive of my noble friend Lord Rooker’s comments. What he said about that toxic word “snooper” is exactly what I said in my speech yesterday at Second Reading. It is a very bad and emotive term, for the reasons that I gave then. I support a number of the other things that my noble friend said as well.
Both Houses are clearly in accord that the maintenance of these powers is critical for the safety and security of our people. Removing this provision before something has replaced it is an absolute nonsense. Having been involved over a number of years in this sort of legislation and this sort of work, it is clear to me that, in reviewing something like RIPA, if we are to do it properly, there is no way that we can achieve something in place of this provision in such a short time, because it will be removed. As the noble Lord, Lord Carlile, mentioned, it will have gone before we could do it. Actually, it will be tight to achieve it even by December 2016. We need to do a proper review. We will need something like a new communications data Bill. We so nearly got one before political shenanigans stopped it happening, but we need to look at this and go into great detail in reviewing RIPA. All this has to be done. It is extremely dangerous to try to shorten these timescales. It would be a dreadful mistake to make it any earlier than December 2016.
My Lords, having supported the Minister in response to the noble Lord, Lord Davies, and having criticised him in response to the noble and learned Lord, Lord Hope, in this case I support the Government and agree with those who oppose this amendment.
If we pass this amendment we would find ourselves in exactly the same danger as we are with the provision of this Bill. We would be presented with a Bill in the latter part of 2016 that would be very urgent and the House would have inadequate time to consider. Although two and half years seems a long time, let us consider what is going to happen in the mean time. The independent reviewer of terrorism legislation has been asked to carry out a thorough review of the RIPA legislation. I understand that his timetable is to try to complete that by the time of the Dissolution of this Parliament, by May of next year.
The Intelligence and Security Committee is similarly carrying out a review. This autumn we plan to have public hearings where those who are critical of the legislation can have their say. I hope that that will generate a public debate and allow these issues to be widely discussed; that will be very valuable. We also hope to reach a conclusion by the end of the Parliament. Indeed, we had better, because there will be a new committee after that. The election will be in May of next year. The new Government will come in with quite a short time before the Summer Recess, when there will be other urgent things to do. It has been suggested that there should be a Joint Committee of the two Houses to look at the conclusions of the reviewer of terrorism legislation, and those of the Intelligence and Security Committee. It will want to have time to consider that. It really will not be practicable to reach a position where properly considered legislation can be introduced until we are well into 2016.
Two and a half years may seem a long time, but when one considers that those are the sensible and necessary steps before legislation is introduced and passed, it follows that the end of 2016 really is the earliest possible date when we can expect to have properly considered and satisfactory legislation in place of the Bill that we are passing today.
My Lords, I have not intervened earlier because I have been doing lots of other things, but I wanted to intervene on this amendment and say that I think that this is a sensible approach. I cannot believe that you can produce this Bill within a couple of weeks and then say that we cannot do something better in a year and a half. It seems that we are trying just to push the boundaries out, and the question is why. It tends to be the people who can see the challenges, who come from a senior executive background, who are trying to get this sorted out, and I can see their point.
We need to consider some of the principles behind the amendment, which is why I fully support it, and we need to discuss those principles very early on. The issue is not the technicalities in the Bill, the definitions of communication data and metadata; we know that we need to do this for the purposes of finding terrorists, enforcing the law and stuff like that. The real challenge is posed by that old bit of Latin—which I might as well use, as we are now using Latin—sed quis custodiet ipsos custodes? Who watches the watchers? Who guards the guardians? We should remember the line that is supposed to come after that, which I will say in English: they keep quiet about the girl’s secrets and get her as their payment. Everyone hushes things up. That is the trouble. If corruption runs high enough, you get the Cambridge set—was it four or five by the end of it all? You get J Edgar Hoover.
That sounds as if I am painting a hugely black picture, but there is danger there, even more so now that we have rolled together—for the purpose of catching terrorists and people in serious and organised crime, which we have had to do—what used to be our external forces, GCHQ and MI6, responsible to the Foreign Office, and our internal police, which was MI5 and is now basically the NCA. In America the CIA and the FBI were kept separate. We have started to bring our forces together because of things falling between the cracks. This means that we are potentially giving huge powers to internal police. Therefore, how those at the top are to be watched is of vital importance.
My Lords, I am sure that the noble Lord is not for a moment suggesting that corruption is involved in this. I understand why there needs to be proper oversight, but surely the noble Earl does not mean to mention words like corruption in connection with the way in which this matter is being approached.
Yes, treason rather than corruption. I do not mind what you want to call it—whatever. All I am saying is that we in Parliament are here to protect the people. We happen to have the senior members of the Executive here as well, which is very useful for holding them to account. But they have to be double-hatted and remember that they are putting in place processes for their successors.
The noble Lord, Lord Rooker, made the point about the public needing to be reassured that the people at the top are being watched. We are seeing enough conspiracy theories emerging in the press at the moment about rings protecting themselves. We do not need any more of those suggestions. That is why I think we need an earlier debate on this. It is not about the technical part of it; it is about reassuring the public that we have the right checks and balances at the top. That is not technical; it is about how we watch people.
My Lords, I want to say just two things. The majority view of this House yesterday at Second Reading was dissatisfaction with the lack of time for public consultation and parliamentary scrutiny of this legislation, not dissatisfaction with the sunset clause. The last thing we need to do is to recreate that problem by not allowing enough time for public consultation and parliamentary scrutiny of the whole area of RIPA and the associated legislation.
My Lords, I support the amendment to have the timetable brought forward because two and a half years is a very long time. While I want to put to one side ideas of conspiracy theories, I do think that there is a hope that somehow the current high level of interest in this will dissipate and that the usual British torpor about what happens with the security services will settle itself back on to our society and we will become unquestioning again. This is about kicking it into the long grass; this is really about postponing it for as long as possible because by that time people will have forgotten the disclosures that we recently had through Snowden and others. We should be concerned to ensure that we act while people are interested and concerned about these issues because they are pressing and very important to a vital and vibrant democracy.
It is important that we have proper scrutiny of the activities that are done in our name at whatever level in our society, and we have to have proper controls. What I am concerned about is when I hear about the setting up of Joint Committees and so on because we always know that the people who are put on to such Joint Committees are hand-picked. There was a period in my life where I remember this happening with the vetting of juries. They are hand-picked to be people who are already very much on the side of protecting the security services.
The security services are vital to the interests of our nation but they need to be questioned. They need to be questioned with some scepticism at times and I am not sure that we get that when people become comfortable in the security committees, as we have seen, and scrutiny is not of the level that it should be. So if we are going to set up these committees and so on, I hope we will see on them the noble Baroness, Lady Kidron, the noble Lord, Lord Hodgson, and some of the people who have been niggling at these issues and asking the questions that were not asked about rendition and so on. There was a complacency in this House and elsewhere about some of the things that happened, which we should have been much more scrupulous about. I hope that when we come to set up committees we will see a greater variety of presences than the ones we have seen until now.
I do not think that two and a half years is the right period of time; 18 months would be perfectly satisfactory and I urge that we look to a shorter period because it concentrates minds while minds are concentrated on this issue.
My Lords, I should confess that when some of us went up to the office yesterday evening, I asked to put my name down in support of this amendment but I was told that since four people had already done so, there was not room for my name. The fact that my name is not on the amendment gives me a little more freedom to think about the issue.
I was anxious to support the amendment because the public, for some of the reasons that have been given by the noble Baroness and others, will be suspicious about the length of time that seems to have been taken in order to allow this measure to survive until it has expired. But I am persuaded by what the noble Lords, Lord Rooker, Lord West and Lord Butler, have said, and also by what was said yesterday evening by the noble Baroness, Lady Lane-Fox. The Minister may remember that she was chiding us for being hopelessly out of date and telling us that the whole thinking about the descriptions of the various mechanisms that we use needed to be revised. There is a great deal of work that has to be done to get the legislation right and to get it modernised, and the last thing we want, quite frankly, is to cut ourselves off by having a timetable that we have to work to in order to put legislation in place that will replace the measure we are talking about today.
I confess that I have changed my mind. I regret disappointing those whom I was seeking to support yesterday evening but I think the wiser course is to leave the date as it is, although there is certainly something to be done by way of public relations to persuade the public that the date has been well chosen for very good reasons.
My Lords, I was not able to take part in the debate yesterday. I must say that I find the discussion on this amendment slightly bewildering.
If the Bill said “2017”, would we be having a different debate or would be saying, “It has to be 2017 because we need that long”? I do not know, but I have the impression that when officials were drafting this, they would have said, “What date shall we put in? Let’s play safe and make sure we have enough time”, and so 2016 arrived. Was it a result of a lengthy period of consideration and working out what has to be done or was it simply the officials—I do not blame them—saying, “Let’s play safe, let’s have a date that is going to be okay”?
I understand the difficulty and we do not want to do something so rushed that we have botched legislation, and there is a danger of that. But I do not know from the outside just how long it would need. I just fear that we have a longer period of time than is necessary. I am not sure what it should be. Clearly, the work can start tomorrow on this, can it not? There is no reason why not. That would give 18 months; if that is not long enough, then two and a half years. I would have thought that the time to get on with it would be very soon. Frankly, I am not sure so I am still agnostic on the date.
I wish the amendment said that the provisions will be repealed “not later than 31 December”, then the Minister could say that he will do his best to make it earlier. As it is, we are stuck with a date that is immovable.
My Lords, I came with an open mind to this debate and I am afraid I have to say to the Minister, for whom I have great respect, that I am now minded to support this amendment. The reason for that, quite simply, is that the overriding priority for all of us must be the reassurance of the public, whose security lies at the heart of this whole debate, and the public are suspicious of the motives of those in power, as my noble friend Lady Kennedy has just outlined. The later the date, the more suspicious they become, so there have to be compelling reasons for this longer period. We are not talking about doing this in three weeks; we are talking about 18 months and I have not heard anything by way of a month-by-month account of why this extra time is needed. So unless the Minister can say something to provide detailed, compelling arguments for this extra time being necessary, I am minded to support the amendment.
My Lords, this has been a long and interesting debate. I do not know if my noble friend has had the opportunity to hear the whole debate today, or the debate we had yesterday, but three clear issues came out of yesterday’s debate.
One was the widespread acceptance in your Lordships’ House that there was a gap that had to be plugged as a matter of urgency. There was also deep dissatisfaction—and I think some anger—with the Government’s use of the fast-track procedure. It is unsatisfactory and I think that view came across very clearly in the debate.
There is also deep dissatisfaction with the current situation, whereby we seem to amend our laws on this issue by a sticking-plaster process. The problem comes up and we deal with it now. It was very clear from yesterday’s debate—this was the point made by the noble and learned Lord, Lord Hope—that we must keep pace with the technology, the changes and the information presented to us. We have failed to do so. RIPA, which was passed in 2000, is now hopelessly out of date. We recognise that that needs urgent consideration.
The amendment suggests that we shorten the period in which we may give further consideration to bringing new legislation. The amendment in the other place, which was tabled by my right honourable friend Yvette Cooper is now Clause 7 of the Bill. I am surprised that those who tabled this amendment did not seek to make changes to Clause 7 as well. Clause 7 is crucial in this whole debate and was central to our support for this legislation. Clause 7(3) says that the independent reviewer, a man whom this House has made clear, as it did yesterday, it holds in the highest regard and the deepest respect,
“must, so far as reasonably practicable, complete the review before 1 May 2015”.
The Minister can confirm this or otherwise, but I understand that, following that review, there would be a Joint Committee of both Houses, where Members of your Lordships’ House and the other place with, I hope, a broad range of opinions—I agree entirely with my noble friend Lady Kennedy—will examine the evidence presented by the independent reviewer.
We have two choices. We can start the work now—there should be some issues that we can look at now—but the substance that the independent reviewer will look at I would expect us to examine, take on board and introduce in legislation. Either this is just a sop and we ignore anything the independent reviewer says and get the legislation through earlier, or we take the views of the independent reviewer seriously and ensure that what he says is taken into deep consideration when we are looking at legislation.
One of the comments made was about public confidence and trust. The public have a right to wonder what we are doing when we pass fast-track legislation. We bring this out of the blue, we put it in context and we expect trust on legislation. That is a big ask. That is also why there has to be some public engagement on these issues, as was clear from yesterday and today’s debates, and this forms part of our demands with this legislation. Obviously, there are details of security information that cannot be given to the public, but the public are entitled to a lot more information that is available now and are entitled to know the context in which data are held. Like my noble friend Lord Rooker, I think that when it comes to the private company-held information, as well as public statutory information, the public have a right to know. We have only to click on the internet and look at something, and for days afterwards somebody knows what you have been looking at because it is there every time you go on to Google or look at something else again. We have a duty to engage the public in that. However, that duty will not be done tomorrow or next week. It will be done in the context of the report from the independent reviewer.
The noble Lord, Lord Carlile, made a very important point when he reminded us that the sunset clause will stop. This is not a sunset clause to reintroduce the same legislation. This is to bring in a completely new framework under which we operate on these issues. That is not something that we should take lightly. We can start working but we need the report of the independent reviewer as well.
As much as one looks at an amendment such as this and instinctively thinks we do not need so much time to deal with it, when one examines the issues there is a strong case for bringing in completely new legislation, which needs time to be done properly. The public cannot be reassured if we continue with sticking-plaster legislation and fast-track legislation, which is completely unsatisfactory.
My Lords, it has been very useful to have this debate. It is our last amendment in Committee and it sums up so much of what we are trying to achieve. I am very grateful to the noble Baroness, Lady Smith, for laying out so clearly the issues that are before the Committee today. It is clear that the Opposition, the Government and coalition partners have been talking about how best to deal with this issue. We have come to the conclusion that replacement legislation for RIPA needs to be properly considered and that we need to look at where we are. We need proper consideration of future legislation. We are also clear that, while we are passing this particular element today, it needs sunsetting—and it needs sunsetting absolutely when its time has expired. However, we would be reckless to try to set a date when we will then prevent the proper operation of the discussion that we all agree is necessary in Parliament, and with the public in the larger world, about this issue.
The Government do not take lightly the requirement for fast-track legislation, but we have taken this forward with the support of the Opposition, and we have included in it an absolute sunset clause, as is right and appropriate. This is so that Parliament can return to the issue after all the other issues have been discussed. Indeed, Parliament must return to it because this sunset clause is absolute and there is no room for its extension.
Noble Lords have queried the requirement for the speed of the legislation. I repeat that we have particular and urgent circumstances. Earlier, I repeated to the noble Lord, Lord Davies of Stamford, things that I had said at Second Reading. He is not in his place at the moment, but he will confirm that I made it clear that there were urgent considerations and that we were on a cliff edge, as the Prime Minister has said. However, the Government understand fully the wish of noble Lords, which has been expressed in almost all debates, to review this area. That is why it is so important that time is allowed for an independent review before the election, hence Clause 7 in the Bill and a Joint Committee review after the election. That is not kicking the can down the road; it is just making sure that when we return to this with legislation, we do so with legislation that has the support of Parliament and has been properly considered. At the same time, it also makes sure that, whoever wins the election, the Government presenting legislation can do so with the public having been fully engaged in the discussion on the issue.
This amendment would change the date when the Bill ceases to have effect and bring it forward to 31 December 2015. While this date is a year later than that proposed in the House of Commons, I do not believe it will give the sort of time that we need for the reasons expressed by the noble Baroness, Lady Smith. The debates that have taken place in this House have made that absolutely clear. While we have no option but to act swiftly now, festina lente is a sensible approach to finding the new solution for the future. The technological changes we are facing—someone pointed to the speech of the noble Baroness, Lady Lane-Fox, yesterday—and the balance between security and liberty, should be looked at with a view to the longer term. We will set up, as I have said, in the Bill a review of the investigatory powers and their regulation to be headed up by the current independent reviewer of terrorism legislation, David Anderson QC. He will report by 1 May 2015, just before the general election. I believe we should be discussing this sort of issue at that time. We need to be realistic. None of us knows who will form the Government after the election. We all have our own views; we sit on opposite sides of the House. However, decisions need be made in the light of information that should be available to Parliament as a whole.
It is not reasonable to expect an incoming Government, of any persuasion, to take a decision immediately on assuming office. That is what in effect would have to happen given the legislative timetable, and it would be without due consideration of David Anderson’s report or any other work that is going on in this area—for example, the committee set up by the Deputy Prime Minister on which the noble Lord, Lord Rooker, sits. Even if the Bill were to be introduced in the first month of the Government’s new term, the timetable would be extremely tight. I think that all noble Lords with experience of legislation—which probably includes everybody in this House—would know that.
Rather, it would be better if the new Government were allowed to develop their own policies, taking advice as appropriate, and enact legislation within their first 18 months. If noble Lords think about it, they will recognise that that is a pretty tight timetable. The new Government would also have the benefit of the Joint Committee of Parliament that all parties have agreed should be established after the election.
The Minister is being very persuasive, as was my noble friend in her pertinent analysis. What I am concerned about in all this talk of Clause 7 is that the reviewer must report to the Prime Minister by 1 May next year. Are we trying to open up a public debate on these issues or are we not? If we are, Parliament should debate that report before we go into the general election.
That is not the deadline that has been agreed by the party leaders. After all, 1 May is a deadline; it does not mean that the independent reviewer will not report before then if he feels that it is satisfactory to do so. It is important to remember that the presence of a sunset clause, while it is absolute in its end date, does not mean that legislation could not be considered before that time if a Government decided that they were in a position to present it in Parliament.
Creating a committee is entirely appropriate and democratic, but it will take time. I do not believe that committees are stuffed with placemen. My noble friend Lord Strasburger, who holds very strong views on this issue, was part of the joint scrutiny committee chaired by my noble friend Lord Blencathra which considered this Bill.
For the past year or so, the Minister has resisted all the efforts by me and others to engage in a conversation or debate on these matters. I congratulate him on his sudden and total conversion to the idea that there should be a national debate and a review of RIPA.
I take that chiding. I am big enough to cope with it. I do not think I have ever failed to answer this House when it has asked me to consider a matter of this nature.
Clearly, Parliament will want to judge both the report of the Joint Committee and the new legislation that replaces this Bill. It will be a new Parliament; it will be a new committee. It will not be the committee chaired by my noble friend Lord Blencathra. The amendment would make it difficult for this to happen. It would also curtail proper public debate about this issue. I am not a last-minute convert in the way that my noble friend Lord Strasburger has described. I believe in transparency; I believe in talking about issues that concern the public. That new legislation will set out new powers and capabilities for the future—potentially wide-ranging powers. The legislation that we have before Parliament today just maintains the status quo, and we have heard the understandable concerns about the pace of its passage.
Perhaps I might say something in response to the speech by the noble Lord, Lord Rooker—I nearly called him my noble friend; I should not say that. He talked about language and the way we communicate difficult ideas. He referred to the problems that elites and those of us with responsibility have in talking to the public as a whole—the use of language. I could not agree with him more. All Governments and all Parliaments must seek to identify through language. It is the thing that we have in common; it is the way in which we communicate with each other; it is the way in which I hope that I am convincing the noble Lord, Lord Judd, of the reason for having this particular date. Language is important.
I am really grateful to the Minister for taking my point. If we really believe what he is saying, and I do not doubt for a moment that he is absolutely sincere, the public have the right to be in the picture before they decide how to cast their vote in a general election, because these issues are central to the whole purpose of government. From that standpoint, the anxiety of the public is that it is all a closed club that is dealing with this in the parliamentary context. If we are going to take the report so seriously and are putting so much emphasis on Clause 7, it is a great shame that we will not get the public in on the act before the election takes place.
What the noble Lord is talking about is political leadership. Political leadership, I am sure, will mean that there are opportunities to discuss this matter during a general election.
This has been a good debate, and I am quite happy that we have had to discuss this issue, but I urge the noble Lords who have proposed the amendment to withdraw it.
My Lords, I agree with my noble friend that this has been an excellent and worthwhile debate. On behalf of my co-sponsors, I thank all those who have taken part.
We have a wealth of experience in this place, which has been demonstrated today wonderfully well. I shall be quite frank: my views have been influenced by what has been said. So long as the Minister was serious, as I am sure he was because he is a sincere man, and so long as the tenor of what he said is carried into effect in the time ahead of us—namely, that, as he put it, the Government will make haste but take the public of this country into consideration in defining and putting together the new legislation to come—it is appropriate for this amendment to be withdrawn. The arguments made about the timescales, especially given the forthcoming general election, seem to me to be correct. On that basis, I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
Clause 8 agreed.
Bill reported without amendment.
My Lords, with the leave of the House I will now repeat a Statement made earlier today by my right honourable friend Theresa Villiers, the Secretary of State for Northern Ireland. The Statement is as follows.
“Mr Speaker, with permission I would like to make a statement on the report by Lady Justice Hallett on the scheme dealing with the so-called on-the-runs.
In February, Mr Justice Sweeney ruled that it would be an abuse of process to proceed with the prosecution of John Downey in connection with the Hyde Park bombing on 20 July 1982 and his trial was stayed.
The Hyde Park atrocity resulted in the brutal murder of four members of the Blues and Royals. Seven horses were also killed and just hours later another bomb in Regent’s Park took the lives of seven members of the Royal Green Jackets. These were appalling terrorist outrages carried out by the Provisional IRA for which there could never, ever be any justification. So in this House I hope that our first thoughts today should be with the families and friends of those murdered that day in July 1982. The Government fully appreciate the deep sense of hurt and anger that the collapse of the Downey trial has caused both to them and victims of terrorism more widely. I would like to repeat the apology I gave in March for that. This Government are profoundly sorry for the hurt that this case has caused.
The Downey case highlighted the administrative scheme introduced by the previous Government to deal with so-called on-the-runs. These were people who had left Northern Ireland and believed that if they returned to any part of the UK they might be arrested in connection with terrorism offences. The Government responded to the widespread public concern expressed about the OTR scheme by establishing a judge-led independent review of the scheme. I am grateful to Lady Justice Hallett for taking on this task. Anybody reading the report will be left in no doubt that she has provided us with a rigorous and comprehensive account of the scheme.
The Government accept the report and all its recommendations in full. On the central issue of whether the OTR administrative scheme gave suspected terrorists immunity from prosecution, Lady Justice Hallett is very clear. She concludes:
‘The administrative scheme did not amount to an amnesty for terrorists ... Suspected terrorists were not handed a “get out of jail free” card’.
The Government have always been clear that, if sufficient evidence emerges, then individual OTRs are liable for arrest and prosecution in the normal way. So I repeat again today to the people holding these letters: they will not protect you from arrest or prosecution and, should the police succeed in gathering sufficient evidence, you will be subject to the due process of law.
Lady Justice Hallett sets out the origins, operation and evolution of the scheme. She agrees with successive Attorneys-General that the scheme was lawful. The last letter sent by the Northern Ireland Office was issued in December 2012 and I repeat today that, as far as this Government are concerned, the scheme is over.
The report sets out a number of serious criticisms of how the scheme operated, including significant systemic failures. Lady Justice Hallett states:
‘The scheme was not designed; it evolved. As a result there was no overall policy and no overall responsibility/accountability for it’.
‘lacked proper lines of responsibility, accountability and safeguards … When errors came to light opportunities were missed to rectify them’,
‘there was no risk assessment’.
In the case of Mr Downey, Lady Justice Hallett concluded, in line with the Sweeney judgment, that it was not the fact that Mr Downey was sent a letter that caused the trial to collapse; it was the fact that the letter contained an incorrect and misleading statement on which Mr Downey relied. The report finds that if the scheme had been properly administered,
‘John Downey would not have received a letter of assurance’.
She can find no ‘logical explanation’ of why PSNI officers failed to pass on the fact that Mr Downey was still wanted by the Metropolitan Police, nor why they failed to correct the error once it became known.
Lady Justice Hallett finds that 13 OTRs received the royal prerogative of mercy between 2000 and 2002 and that in all cases this was to release people from having to serve some or all of the rest of their sentences. No pre-conviction pardons were issued. The report criticises the lack of a,
‘central register of documents recording the use of the RPM’.
While she finds,
‘no evidence of the UK Government actively seeking to obscure the scheme from the public’,
Lady Justice Hallett states that it,
‘was not given much publicity and that important groups’,
such as victims and their families, ‘remained unaware’ of it. The report acknowledges the hurt and distress that this has caused to many victims.
Lady Justice Hallett has found two examples of somebody receiving a letter in error, in addition to the Downey case. She has also identified 36 cases dealt with between February 2007 and November 2008 which should be given priority in the exercise now under way by the PSNI to check whether the change in status from ‘wanted’ to ‘not wanted’ can still be justified.
A key question has arisen as to what the Government intend to do next to ensure that there are no more failed prosecutions like that of Mr Downey. The report recommends that we now,
‘seek legal advice, in conjunction with the police and prosecuting authorities, to determine whether’,
‘should notify any individuals whose status, as communicated to them, has changed or may change in the future’,
and that we,
‘consider how to mitigate against further abuse of process arguments, for example by confirming to recipients the factual and contemporaneous nature of their letters’.
The Government will act on these recommendations and I give the House this assurance. We will take whatever steps are necessary, acting on the basis of legal advice and in conjunction with the police, the Justice Minister and prosecutors, to do everything possible to remove barriers to future prosecutions.
The bulk of this report deals with decisions made by the previous Government in respect of their handling of the political process in Northern Ireland. It is not my role to speak for my Labour predecessors as Secretary of State; they are more than capable of speaking for themselves on the role that they played and the decisions that they took. Yet I will say this: I might not agree with every decision that they made in relation to the OTR issue but, whatever differences of emphasis and approach we might have, I recognise that they were dealing with very difficult judgments in very difficult circumstances and that they were at all times acting with sincerity in seeking to move the peace process forward.
I emphasise that Lady Justice Hallett has found no evidence that either politicians or officials ever interfered improperly with due process of law or the operational independence of police or prosecutors. The report concludes that the scheme did not impact on police investigations into historic terrorist offences. PSNI and Historical Enquiries Team files on terrorist crimes were not closed. There was no chilling effect.
It is well known that the current Government allowed the checking process to continue after we came to power in May 2010, but both I and my predecessor are very clear: had we at any time been presented with a scheme that we thought amounted to an amnesty, immunity or exemption from prosecution, we would have stopped it immediately. That would have been consistent with the opposition of both coalition parties to the Northern Ireland (Offences) Bill introduced by the right honourable Member for Neath in 2005, which was subsequently abandoned.
This Government believe in the rule of law, and that applies across the board to everyone, without fear or favour, including those in possession of letters issued under this scheme. There are many lessons to be learnt from this episode, not the least of which is the crucial importance of continued efforts to find an agreement on the divisive issues of flags, parading and the past. In dealing with the painful legacy of Northern Ireland’s past, we need a process that is transparent, accountable and balanced, which puts the era of side deals firmly behind us and which commands the confidence of all parts of the community. The Government remain fully committed to working with all parties in Northern Ireland in their efforts to deliver that important goal. I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement. I endorse her initial comments about our thoughts today being with the relatives and friends of the soldiers who lost their lives in Hyde Park. The suffering of those families, as with the families of other victims of terrorism, will go on for who knows how long.
Her Majesty’s Opposition welcome Lady Justice Hallett’s report today and accept her findings in full. We acknowledge those findings, including those that make it clear that there should have been a more systematic approach to the operation and an ongoing review of the scheme. There are lessons to be learnt by both the Northern Ireland Office and the Police Service of Northern Ireland.
We are pleased that Lady Justice Hallett shatters a number of myths. She makes it clear that the scheme was not unlawful and that files on terrorist offences were not closed by the PSNI. Most importantly, she states categorically on the very first page of her report that the administrative scheme was not an amnesty, nor did it ever amount to a “get out of jail free” card. On legality, while Lady Justice Hallett questions the structure of the scheme, she makes clear on page 144 of the report that the administrative scheme was not unlawful. On amnesty, she makes clear on page 28 that:
“there was no question of the administrative scheme granting an alleged offender an amnesty or immunity from prosecution. It is clear from the views expressed at the time that the Attorney General would not have agreed to the process had that been the intention or the effect. It is also clear that successive Attorneys General maintained the same position throughout the life of the scheme”.
While Lady Justice Hallett is right to conclude in her report that the scheme was not secret, I acknowledge the concern of politicians and others who feel that they should have been given more information about the nature and application of the scheme. This includes the First Minister and Justice Minister after the devolution of policing and justice in 2010.
Most crucially, if we are going to move forward, do the Government accept that the report reinforces, rather than undermines, the urgent need for a robust, transparent and comprehensive process to deal with Northern Ireland’s past? We contend that it is now clear that the UK and Irish Governments must play a far more hands-on role in supporting Northern Ireland’s political parties to reach an agreement on the past and parades. Until this happens, one can conclude only that stalemate will prevail, leaving a dangerous vacuum to be filled by those who seek to undermine the peace process through either political means or, worse still, a return to violence.
As the Prime Minister has stated, it would be wrong to be retrospectively selective about key elements of an historic peace process that ended 30 years of violence and terror. I came into the other place in 1987 with a longstanding interest in Northern Ireland through my own family and my wife’s family, one from the unionist side and one from the nationalist side. I remember that period well and I well remember my time on the Northern Ireland Select Committee, with friends like Peter Robinson, James Cran from the Conservative Party and the late, great Eddie McGrady. It was an extraordinary period that demanded historic and difficult compromises. However, as a result of that momentous agreement, Northern Ireland has been transformed. Over the past 15 years, PSNI figures demonstrate the dramatic fall in all forms of sectarian violence, casualties, bombings, shootings and murders. These rapid improvements in the security situation have led to a striking change in the local economy and the international profile of Northern Ireland. In addition to the official bodies, at grass-roots level there are numerous heart-warming examples of reconciliation and normalisation across communities. These changes should never be underestimated or taken for granted.
Tribute must be paid to the many individuals who contributed to that process, including noble Lords in this Chamber. There were historic compromises from the unionist side in accepting the peace process and, Sinn Fein would maintain, historic compromises on its part too. Through it all, the guiding light and assurance must be that everyone who signed up to the agreement agrees that the constitutional status of Northern Ireland will only ever change with the consent of the people. Many people made that compromise and we owe it to them to continue doing that.
Credit should also go to the intensive engagement of the UK and Irish Governments working closely together. In the UK context, Sir John Major deserves credit for starting the process; if a start is never made, you will not get anywhere. However, it was Tony Blair’s decision to expend unprecedented prime ministerial capital on achieving peace in Northern Ireland that was decisive. I make that point because some would like to use the controversy generated by the on-the-runs as a stick to beat Tony Blair with and allow legitimate public concern to distort the truth about a peace process in which so many people, including, as I have said, some in your Lordships’ House, played a part. No one is saying that it is a perfect peace process—there is no such thing—but it is a peace process of which I and my party remain incredibly proud. It has saved lives and allowed the current younger generation in Northern Ireland to grow up largely free from the fear and the reality of violence. Frankly, this would not have happened without Tony Blair and his Government.
I remember the time well. I was in the Whips’ Office and I played a small part liaising with various parties. Not only is my party proud of the peace process but we as the Westminster Parliament played a leading role in it collectively. The co-operation that came from all corners of both Houses and from all political parties was outstanding. Therefore, while this is a difficult situation that we need to learn from, it should not be used to undermine or diminish the achievements that we have made collectively so far.
I thank the noble Lord for his recognition of the complexity of the situation. The noble Lord raised a number of different points, and I will do my best to address most of them.
In relation to the recognition that there were systemic problems that led to the problems that the Downey case revealed, the Northern Ireland Office is already reviewing its procedures. The Permanent Secretary is leading that work, which is under way. The noble Lord referred to the fact that the report shatters some myths. It is important to note that Lady Justice Hallett emphasised the importance—in her very last paragraph, I believe—of people not making political capital out of this situation. She also emphasised in the report that the misrepresentation of the scheme has caused anguish to the families of victims. It is important to remember that the law officers and legal officials who appeared not just before Lady Justice Hallett but also before the Northern Ireland Affairs Committee have all emphasised that this was a legal scheme.
My right honourable friend the Secretary of State has apologised for failing to brief Ministers of the Northern Ireland Executive. She recognises that that was a failing. She is now, however, working very closely with the Justice Minister in Northern Ireland to deal with the outcome of this review. I recognise—and the noble Lord emphasises this point—that Northern Ireland continues to rely on leadership. There have been outstanding men and women of great courage across communities in Northern Ireland in recent years who have stood up for their beliefs and for peace. We must hope that that process continues. I have to say that I first visited Northern Ireland in the late 1990s and when I go back now I am always struck by the progress that has been made. Devolution has changed the centre of gravity and it is important now that it is the devolved Administration that need to take the lead. The Government fully recognise the complexity and difficulties that the previous Government were facing over many years of the peace process.
My Lords, I welcome the Statement from my noble friend and identify these Benches with the concern for the victims who have been spoken about by noble Lords on both sides of the House. However, we must do more than simply speak about our concern for the victims. We must act in a way that shows real concern.
A number of things have been revealed in this report—it is more than 270 pages long, so it is difficult to get a full assessment of it in such a time. Already it seems to me that some of the assessments are mistaken, including some of those identified in the Secretary of State’s comments. For example, she said that,
“the bulk of the report deals with decisions made by the previous government in respect of its handling of the political process”.
It seems to me that the bulk of the report is not about the decisions but about the process that led to the decisions. It is quite clear that the process was shambolic and was a whole approach to government from the very top. Decisions were not taken in a formal and proper way. I know that to have been the case during the process itself.
I agree with the noble Lord, Lord McAvoy, about not taking it to pieces and certainly not behaving retrospectively. However, some of us made criticisms at the time about the way in which it was being handled. Subsequently, many of the problems that we continue to experience are because of the unwise ways of reaching decisions about prisoners, weapons, dealing with the past and issues of that kind. It is quite clear that time after time Lady Justice Hallett identifies the failure to keep any list of pardons and the failure to keep any account of the decisions that were made. I think that this Government, as well as any future, never mind past Government, must learn about process. It is not sufficient to have this kind of sofa government, or any emblem of it, particularly when one is dealing with matters that are serious life and death issues and matters of law.
We have to go back and revisit those things to learn from them—not just to be critical, but to learn that we should not behave in that way again. I am afraid that the evidence is that the lesson has not yet been learnt. The Secretary of State is now saying, quite properly, that she will make sure that she informs Ministers in the devolved Government. That means that they were not properly informed before. We had a Bill yesterday where we were looking at legislation about arrangements for the NCA, and so on. It was quite clear that there was no discussion at an early stage with the Government of the Republic of Ireland and the Justice Minister there. I know that because I raised it with the noble Lord, Lord Taylor of Holbeach, and the reply was almost, “What a shocking suggestion”. The fact is that we should have been doing those negotiations.
Of course we should not be unhelpfully critical, but we are here to hold government to account and to try to improve the processes. It is quite clear that some of those processes were seriously mistaken. As an emblem of that, I will put a specific question to my noble friend. Given that these letters gave reassurance, and were meant to give reassurance, to individuals that at the time of their issue they were not wanted for questioning by the PSNI or other forces, and given that we are told that the PSNI and others have not closed the cases, will the PSNI be formally withdrawing letters, or otherwise formally notifying individuals concerned if and when intelligence, information or evidence comes to hand that changes their status back to being wanted for questioning? I ask because if there is not a proper, formal scheme of withdrawal instigated, arrests and subsequent court cases could well be endangered again, as in the Downey case. I ask my noble friend for assurance on that, not because it is the only question but because it is symbolic of some of the failings of the past.
My noble friend asked about the royal prerogative of mercy and the failure to keep lists. In fact the royal prerogative of mercy is not used only in relation to terrorism cases. It is used very much more widely and it was used much more frequently in the past. Legislation has changed and enables the justice system now to deal with issues such as early release from prison in a different manner. It has simply not been the custom to keep lists of this nature, and I would say that in regard to the Northern Ireland Office investigations, it is not the case that the problem related entirely to the time of the peace settlement and the time of devolution. It predates and goes well back into the last century.
My noble friend referred to poor administration and organisation. The report by Lady Justice Hallett is very clear about the areas of poor administration. The key point she makes is that it was a system that evolved and was not created. The Government acknowledge that as time went on and the scheme developed and grew, failure to take the opportunity to review, update or risk assess the scheme added to the problems of the scheme.
My noble friend asked whether the Government were thinking of withdrawing the letters because of the dangers of impairing prosecution. Lady Justice Hallett recommended that the Northern Ireland Office should seek legal advice in conjunction with the police and prosecuting authorities on what to do in cases where errors may have been made. That process is already under way. The Police Service of Northern Ireland is reviewing all the cases. Lady Justice Hallett makes clear that that review will be thorough and will take years rather than months. However, she made clear that the judgment in the Downey case stood on its own facts; it was a judgment in the first instance which should not be applied to any other examples, and was not binding in any other cases.
I think my noble friend did us all a great service in drawing our attention again to the victims in this, for whose families today will not be easy. It is important to remember the names of those who died: Lieutenant Anthony Daly, Trooper Simon Tipper, Lance Corporal Jeffrey Vernon Young and Squadron Quartermaster Corporal Major Roy Bright. It is important that, as we have these discussions here today, we hold them in our minds and thoughts.
My Lords, I also welcome the Statement. As we read the Hallett review, I agree with the noble Baroness that we should never forget the innocent victims.
Unlike the noble Lord, Lord Alderdice, I will be critical. This has been a sorry debacle, which has given no credit to the Blair Government—or, indeed, the current Secretary of State for Northern Ireland. For many months now, it has undermined confidence in the rule of law. The people of Northern Ireland have seen that members of a specific terrorist organisation appear to have been given, at the very least, a letter of comfort that indicates that all is forgotten and they can come home to the United Kingdom in the knowledge that they will be free from prosecution and can live a life of comfort—unlike their victims. That clearly was the implication and interpretation given to the leadership of Sinn Fein/IRA, who requested these letters in the first instance.
Much has been said about transparency, or the lack of it, regarding this matter. I will ask the Minister a specific question. Can she inform the House why and when the Government of the Irish Republic were made aware of this scheme, and why the Northern Ireland Executive and parties in Westminster were not so informed?
The noble Lord referred to the nature of the scheme, and for the absolute clarity of the House here today, I will repeat that this was not an amnesty and it was not intended to be an amnesty. Lady Justice Hallett is quite clear on that. The Downey judgment was the result of an error in an individual case that should not have occurred, not as a result of the general design of the scheme.
The noble Lord asked a specific question about the Irish Government. The Irish Government had been involved in discussions with the UK Government over the period of the peace process. They had been closely involved in discussions and, for that reason, they were aware of the scheme. I repeat that, of course, the devolved Executive of Northern Ireland should also have been consulted and informed, and should have known about it in an official format.
My Lords, I will make four points. First, does my noble friend agree that this was a wholly dishonourable scheme because it conferred benefits and assurances on one small group of which everybody else was kept in ignorance? Secondly, since it was a dishonourable scheme, why did this Government allow it to remain in being from 2010 until 2012? Thirdly, my noble friend may recall that in a Question in April I asked for assurances that the police force in Northern Ireland would be given not just resources but also every encouragement to pursue the cases against terrorist suspects, to secure the evidence and bring them to book. What progress has been made?
Fourthly, I will touch upon the Sewel convention, of which my noble friend made a great deal in the Answer to a Question by the noble Lord, Lord Empey, yesterday. The Sewel convention provides that the Government at Westminster will not normally take action in areas that are devolved to the Northern Ireland Executive. Since 2010, security and justice have been so devolved. Why were the Executive kept in complete ignorance?
My noble friend refers to this as a “dishonourable scheme”. It is clear from the coverage given to it in the extensive report of Lady Justice Hallett—which is very detailed and thorough; one must be grateful to her for her efforts—that the scheme could have in principle applied to those who were not necessarily republicans. Indeed, I believe one name was supplied from the unionist community.
It is, however, an issue of logic that members of the unionist community do not tend to go on the run to the Republic of Ireland. They would be much more likely to have stayed in the UK. Over the years, some members of the unionist community were, I believe, the subject of the royal prerogative of mercy.
Why did the current Government continue the scheme? By the time of this Government, it was dealing with smaller numbers of people: 45 cases have been considered since May 2010 and 12 letters were sent by the Northern Ireland Office since May 2010, stating that on the basis of current evidence the person concerned was not wanted by police. Two further “not wanted” indications were sent by the PSNI without involving the Northern Ireland Office. However, the current Government have issued no letters since December 2012. It is important to repeat again that the Government regard the scheme as finished.
My noble friend raised the Sewel convention. Of course, as a result of that convention and the fact that devolution had occurred, the Northern Ireland Executive should have been fully involved. I have said this, and the Secretary of State has made it clear in her Statement and apologised for the fact that they were not formally briefed.
My Lords, as one who was chairman of the Northern Ireland Affairs Committee in another place for the whole of the previous Parliament, it is clear to me that this matter was not as well handled as it should have been. However, one understands that there was a passionate desire not to see the peace process unravel. I understand that fully. We have to recognise that we have a power-sharing Executive in Northern Ireland and a Deputy First Minister who very recently had an audience with Her Majesty the Queen, and I am very glad that it happened. I would much rather have that happen than have a return to the Troubles. However, we have to maintain the rule of law and reach a tidy conclusion. I wonder if we might not consider all those who are guilty of terrorist offences and are prepared to admit their guilt eligible for the royal prerogative of mercy, and those who are guilty and not prepared to admit it would be liable to prosecution. The sooner we can ensure that the PSNI devotes all its resources to combating current crime, rather than investigating past crime, the better.
My noble friend is absolutely right to emphasise the passionate desire at that time to make sure that the peace process did not unravel. We must never take progress for granted. It would be quite possible for there to be major problems even now.
My noble friend makes some interesting points on how problems that this administrative scheme was designed to deal with might be dealt with under a scheme that involved pardons. There have been numerous ideas and attempts at cracking this problem. None of them has been fully satisfactory but many great minds are at work on this issue and I very much hope that people will continue to keep this at the forefront of their mind. It is a problem that has to be solved in one way or another, but it is not something that this report in itself will solve.
The noble Baroness has stated that the Government accept this report in its totality. She has quoted from the last paragraph of that report, and I, too, will quote from it. It says:
“One catastrophic mistake has been made and it cannot be undone. The families of those killed in the Hyde Park bombing have no choice but to come to terms with that fact, as devastating as I know it has been for them”.
Does the Minister accept, if there is to be a restoration of confidence in the community in Northern Ireland, that it is imperative that whatever happens from this day forth has to be done in an open and transparent manner?
The Hallett report also makes a number of recommendations. Can the Minister assure us that all those will be implemented? Can she give us a timescale? Can she also assure us that, in the event of further or new legislation being required, there will be no hesitation in bringing that forward as early as possible?
The noble Lord points out some significant words at the end of this report that make very difficult reading for the families of the victims of that bombing. He asked about the timescale for implementing the recommendations. I have already said that the Government accept all the recommendations and indicated that in some cases work is already under way in dealing with the issues. However, it is important that we do not set a timescale. The work of the PSNI, which faces significant recommendations of its own, has already begun in reviewing all cases. However, it would be totally inappropriate to put an artificial timescale on that because the emphasis of that work must be on thoroughness rather than speed in order to ensure that the work is done properly and will stand up in court if tested. That certainly does not suggest that the Government are putting any of this off; the work is currently under way.
Data Retention and Investigatory Powers Bill
Report and Remaining Stages
Report agreed without debate.
My Lords, I thank the officials who have supported me during the course of this Bill on behalf of all Members of the House. It has been a testing time for them but they have done it in an exemplary fashion.
My Lords, it has been a difficult process on this Bill and I thank the Minister for his customary courtesy in ensuring that we have had access to information and in being prepared to meet with Members across the House. I thank his officials, who have made themselves available to us beyond the call of duty. I also thank the officials of your Lordships’ House, who have had to work in double-quick time on the amendments that have been tabled and have all done so with courtesy and great kindness to Members.
Justice and Home Affairs: United Kingdom Opt-Outs
Motion to Agree
I hope that noble Lords will excuse me while I change horses. I am here to update the House about negotiations on the so-called 2014 decision. Before I do so, I begin, once again, by expressing my gratitude for the work of this House in scrutinising these important matters. This Government are extremely grateful that this House—the EU Committee in particular—has undertaken to look at this issue in such detail. We consider it important that Parliament is given every opportunity to consider this matter fully.
Last July, the Government explained that we had decided to exercise the opt-out, and we have now done so. However, we were also clear that we had listened carefully to the views of our law enforcement agencies and prosecutors. We concluded that a number of measures subject to the opt-out add value in the fight against crime and the pursuit of justice and that it would therefore be in our national interest to seek to rejoin them. This House considered the matter in full and endorsed the Government’s decision to seek to rejoin the measures set out in Command Paper 8671.
Before opening formal negotiations with the European Commission, the Council and other member states, the Government listened carefully to the views of noble Lords and considered thoroughly the excellent reports of the EU Committee of the House. Those reports reached well considered conclusions that the Government took into account during negotiations. Good progress has been made in these negotiations and I am pleased to be able to report that we have reached an “in principle” deal with the Commission on the non-Schengen measures that fall under its purview. We have also made good progress on the Schengen measures, with the outline of a possible deal now clear. This matter was discussed at the General Affairs Council on 24 June, but some technical reservations still remain. Discussions continue with the aim of allowing those reservations to be lifted. Negotiations are still ongoing but the Government have been clear throughout this process that we would update Parliament as appropriate and I am honouring that commitment today.
I am acutely aware that the EU Committee of this House has said that Parliament was not involved early enough in the process. While I would not entirely agree with that sentiment, it is something I hope noble Lords will understand the Government are seeking to address by holding a debate on the issue today.
On 3 July the Government published Command Paper 8897, which includes the full list of measures that were discussed at the General Affairs Council, and impact assessments on each of those measures. That fulfils the Government’s commitment to provide those impact assessments and further demonstrates our commitment to parliamentary scrutiny of that matter. However, noble Lords might find it helpful if I set out exactly what changes have been made to the list of 35 measures between the opening of negotiations and now.
Two measures originally on the list of 35 that the Government wished to rejoin—one relating to CEPOL, the European Police College, and the other to freezing orders—have been “Lisbonised” by the new CEPOL measure and the European investigation order respectively. As a result, those measures are no longer subject to the opt-out and fall off the UK’s list.
The UK will also no longer seek to rejoin the European Genocide Network, but will instead rejoin the European Judicial Network. That follows submission of further evidence from the Lord Advocate in Scotland, Frank Mulholland, the Crown Prosecution Service and other member states on the operational benefits of the measure and practical examples of its use in tackling crime. I also know that the EU Committee felt strongly that we should rejoin this measure, and I hope that it is pleased with this outcome.
The UK will not rejoin the Schengen handbook, as other member states consider that measure to have been superseded by other measures. However, we will rejoin the SIS II networks measure—a technical measure others consider linked to our participation in SIS II. As recommended by the EU Committee of this House, the Government will also rejoin three Europol implementing measures.
Finally, the UK will no longer seek to rejoin the special intervention units measure. The Commission considers that measure to be linked to the Prüm decisions, which the UK will not seek to rejoin. We have neither the time nor the money to implement Prüm by 1 December, so it would be senseless for the United Kingdom to rejoin it now and risk being infracted. Despite considerable pressure from the Commission and other member states, that remains the case.
We all want to see the most serious crimes—such as rapes and murders—solved and their perpetrators brought to justice. In some cases, that will mean the police comparing DNA or fingerprint data with other European forces. When 30% of those arrested in London are now foreign nationals, it is clear that that is an operational necessity. Therefore those comparisons happen already, and must if we are to solve cross-border crimes.
The Government would be negligent in their duty to protect the British public if that issue were not considered carefully. We cannot rejoin Prüm on 1 December and will not seek to do so. However, in order that Parliament can also consider that matter carefully, the Government will produce a business and implementation case and run a small-scale pilot, with all necessary safeguards in place. We will publish that by way of a Command Paper and bring the issue back to Parliament so that it can be debated in an informed way. We are working towards doing that by the end of next year.
The Government will also not seek to rejoin the probation framework decision. As the Government have made clear, the measure has not yet been used, and there are serious questions about how it might work. Of course, we have no principled objection to sending prisoners back to serve their probation or community sentence in their home country, and we have taken into account the potential of this measure as indicated by the EU Committee. We have therefore indicated to the Commission that we will take another look at the measure when there is enough evidence of it working and of its impacts to see whether there would be benefits to the UK from taking part. To support that decision, we will publish for Parliament an assessment of the potential impacts in due course.
I know that many were sceptical that a deal could be done. However, I am proud to say that we have very nearly done it, and the Government are clear that this is a good deal for the United Kingdom.
My Lords, I am pleased to speak today in my capacity as the chairman of the European Union Select Committee of your Lordships’ House, and to follow the Minister, who has brought some good news to us and who, characteristically, has done his best to explain this extremely complex topic.
I am preceding my colleagues, who will speak on behalf of their sub-committees today, and other noble Lords who I am always very pleased to see participating in these European debates. They will be able to go more into the detail of these complex opt-out decisions, because, frankly, they and their sub-committees have conducted the scrutiny leg work. That has resulted in two excellent reports, published—as is the convention, in the name of the Select Committee itself—some time ago, in April and October of last year. The House has debated them and the issue of the opt-out on numerous occasions before. I think therefore that the House will appreciate it if I keep my own remarks brief.
In broad terms, we are pleased that most of the recommendations of our reports have been followed—I know that others will make their contributions where there are specific points of difficulty or disagreement. I acknowledge readily that Ministers in this House have been helpful in the handling of the decision process. Nevertheless, I must record with some sadness rather than anger that the process has been made more difficult than might have been needed. Our committee has relied on the timely provision of information with which to consider the decisions being taken under the very complex Protocol 36. Occasionally—or perhaps one should say sporadically—we have met with a recalcitrant approach to this on the part of departments. However, in a sense that is in the past, and on the whole, as the Minister indicated, on the substance we are on the same page and in broad agreement with what the Government propose.
Within and beyond that, I will raise two specific points. First, a highly illogical and rather disturbing approach seems to have been taken by government in relation to the impact assessments laid before Parliament recently. I can assure the Minister that this is not just a long-running saga, because it is of immediate and contemporary interest also. That document as published ran into the hundreds of pages, but it was unindexed, lacked a contents page, and contained only the impact assessments for the 35 measures opted into, presented in what appeared to be a somewhat shaky batting order. It certainly was not an easy or user-friendly document to read.
Alongside the presentation of the impact assessments, it could appear that the evidence had been selected to support the decision, rather than the decision in each case being based on the evidence. No impact assessments were made—or as far as we are aware even conducted—on the 100-odd measures not being opted into under Protocol 36. I point out for new readers that it will be clear from the Minister’s remarks today that this is a shifting number—they jump in and out of that particular figure for adoption or not.
We have had the benefit of an assessment of the impact of the 35 measures that the Government now propose to opt in to, but it is not a particularly illuminating story in relation to the overall picture. I therefore ask the Minister: are assessments being conducted on the impact of not opting in to certain measures? Will the Government be sharing their rationale for not opting in to each of these measures? Was their decision in each case based on the evidence of the impact assessment?
I appreciate that some measures have been, in the terrible jargon, “Lisbonised”—that is to say, wrapped up under the treaty of Lisbon—and it would be redundant to opt back in to them, so there is no need for us to do so. For all the others, we are genuinely not clear about what assessment has been made of the impact of not opting in to them, and I request that this should be considered and completed. At the very least, I would have expected the Government to provide impact statements for the quite small minority of recommendations that we put forward in our reports and that they have decided not to opt back in to—in other words, as far as this House is concerned, the particular measures under current contention.
My second point is perhaps a less technical one, but it is no less important. It concerns transitional arrangements and measures. The Minister did say something about those, and I think we can take some relief from the fact that we appear to be moving towards an agreement with the Commission on the readoption, or reinsertion, of these measures. I still have a simple request for him: can he please give the House his assurance that, when the opt-out comes into force on 1 December—in the absence of measures being readopted—where measures have not yet been accepted by that date, transitional measures will be in place, that those transitional measures will have been well considered, and that they will cause the minimum disruption, or in certain cases even potential danger, to the public from their not having been adopted as substantive measures because of the process that we are engaged in?
My Lords, I am pleased to be speaking in this debate primarily on behalf of the noble Baroness, Lady Corston, who chairs the European Justice, Institutions and Consumer Protection Sub-Committee, of which I am a member. She very much wanted to speak today, but because of the short notice of the debate, unfortunately that did not prove possible.
Before I speak on behalf of the committee, however, I would like to make several personal remarks. This House has debated the 2014 block opt-out on numerous occasions—most recently in May—and I do not intend to return to the wider questions raised by this issue, except to say that although it has been a rather convoluted process to get where we are, and there have been several slip-ups on the way, in terms of providing information, we have largely arrived at a reasonably acceptable situation.
After reading the debate in the other place on this subject the other week, I think I should perhaps even congratulate the Secretary of State for Justice and the Home Secretary on dealing with the political problems on their own Benches in the Commons. In fact, I hate to think what would have happened if the disciplines and the support of the coalition had not been in place.
Protecting our involvement in the European arrest warrant is all-important. Clearly some reforms were required to improve its working, but it is fundamental to our criminal justice system, and a classic example of where concessions on our own national sovereignty have to be used to pursue our wider national interest and get control of situations where we would otherwise be powerless. It is also clear from our discussions that those who hope that a replacement of the European arrest warrant by a bilateral treaty would be a way of getting around the jurisdiction of the European Court of Justice will be disappointed. As we know, Denmark has been required to submit to the jurisdiction of that court as a condition of the agreement and the treaty with the European Union.
Our own committee’s opinions on these matters have been clearly expressed in the two reports that we undertook with our colleagues on the Home Affairs, Health and Education Sub-Committee, which is now chaired by the noble Baroness, Lady Prashar. There are, however, three questions relevant to the Motion before the House today that I wish to put to the Government.
The first concerns a clear difference of opinion. Both the reports undertaken by the two sub-committees on the Protocol 36 decision recommended that the Government opt in to the framework decision on probation decisions and alternative sanctions; the measure is often referred to as the European probation order. The UK has not implemented it. The European probation order provides a basis for the mutual recognition and supervision of suspended sentences, licence conditions and alternative sanctions such as community sentences, where an individual has been sentenced in one member state, but is ordinarily and lawfully resident in another—or where someone wishes to go to another member state and that member state is willing to supervise the sentence.
The two sub-committees had no doubt that this measure had the potential to provide benefits for the management of offenders on a cross-border basis, and that the Government had nothing to gain by not implementing its provisions. During our inquiries, the Government told us that they had concerns about the proper implementation of this matter, and we therefore suggested that these should be resolved at a European level, in the interests of all participating member states. In their formal response to the second of our reports, the Government said that they had looked at this measure “carefully” and that, although they supported the principle behind it, they did not consider,
“that its benefits outweigh its risks”.
In the Government's view, the main risk lay in the fact that the proposal would allow,
“different practices amongst Member States ... in the event of a breach of a Community Order”.
Some states would approach such a breach domestically, while others would return the individual to the issuing state.
I note that the European probation order is not among those measures that the Government will be seeking to rejoin. Can the Minister therefore tell the House what steps were taken, in discounting this measure, to resolve the Government's concerns with other member states on the operation of the proposal? What is the timetable now for the Secretary of State, in the other place, to say that the Government will look at this matter again in due course? What will be the timing of the assessment that they plan to make?
This question leads me to the second issue I wish to raise today—the quality of Command Paper 8897, which the noble Lord, Lord Boswell, has already referred to. Leaving aside the generally poor standard of the document, which has already been addressed, but drawing again on the example of the European probation order, I am minded to ask the Minister how he believes that members of the relevant European sub-committees tasked with advising the House on European matters are supposed to assess the individual merits of opting in to such a measure—or not, as the case may be—when we have not been furnished with the impact assessment detailing the ramifications of the probation order.
Finally, the third matter that I will address takes me back to the European arrest warrant. Members will be aware that this is one of the 35 measures that the Government have chosen to opt back in to. In March, Royal Assent was given to the Anti-social Behaviour, Crime and Policing Act 2014. This wide-ranging Act included provisions that amended the Extradition Act 2003, which in turn gives effect in the UK to the framework decision introducing the European arrest warrant. The 2014 Act introduced a proportionality test into the operation of the European arrest warrant in the UK. Can the Minister confirm that the provisions of the 2014 Act dealing with the European arrest warrant are compatible with the framework decision, and that the 2014 Act will not, once the UK opts back in to the European arrest warrant, give rise to infringement proceedings by the Commission?
My Lords, I, too, will concentrate on process, which I am sure will be dealt with by the former chair of my sub-committee, the noble Lord, Lord Hannay. The noble Lord, Lord Boswell, also commented on that.
The two sub-committees of the EU Select Committee recommended that the Government should provide Parliament with regular reports on the progress of the negotiations and show flexibility regarding any issues of coherence raised by the Commission. It is therefore welcome that the Government have been flexible. It is also welcome that we have this debate to consider opt-ins and opt-outs. I am very grateful to the Minister for updating us on this.
As we heard, on 3 July, the Government laid before Parliament Command Paper 8897. However, that document is very inaccessible. For example, the impact statements are unnumbered and unindexed. It is disappointing that such an inaccessible paper was laid on such a complex issue. It does not make the sub-committees’ consideration of these issues any easier.
Furthermore, in a debate on 8 May in this House, the noble Lord, Lord Hannay, who was then the chairman of Sub-Committee F, argued that there should be impact assessments of measures the Government did not intend to opt back in to as this, too, would have an impact on the UK. As he said:
“That impact could be neutral, positive or negative, but it is an impact”.—[Official Report, 8/5/14; col. 1622.]
It is disappointing that we do not have those impact assessments.
As we heard from the Minister, the negotiations on the overall package have not been concluded but agreement has been reached in principle. When the package was discussed at the General Affairs Council on 24 June, some member states expressed technical reservations, as we heard. It is important to know whether these technical reservations will result in any changes to the list, or in changes to the classification of measures as Schengen or non-Schengen.
Furthermore, there is no reference to the data protection framework decision, which has been reclassified by the Commission as a non-Schengen measure. Do the Government agree with this? I am grateful to the Minister for explaining about the measures that have been “Lisbonised” and what is in and what is out. Nevertheless, it is misleading to refer to them as the 35 measures. As we need to focus on the measures that the Government will be opting back in to, it is important to know whether the Government’s list is the same as that of the Commission. It would be helpful to have an explanation of the reasons for the changes, and whether these were demanded by the Commission or by other member states. How were these changes agreed and on what basis?
The two sub-committees concluded in their report last year that the Government should seek to rejoin the 35 measures already identified but should also seek to rejoin an additional set of measures such as: implementing measures related to Europol’s continued operation; the framework decision on combating certain forms and expressions of racism and xenophobia by means of criminal law; the European Judicial Network; the European probation order and the Convention on Driving Disqualifications. I am pleased that the Government have decided to opt in to the European Judicial Network and the measures relating to Europol. All this is welcome. However, like the previous speaker, I would like to know what the timetable is with regard to the European probation order. I was pleased to hear that the Minister sees the potential of that measure but it would be useful to be told what the plan is for the future.
I very much hope that the Government will continue to pay heed to the sub-committees’ recommendation that the Government provide good quality, accessible and timely information to inform future consideration of these matters.
My Lords, as we continue to debate this important matter it becomes for me more and more like one of those television series billed as new but which are in fact repeats of previous programmes with minor updates, which certainly bring us no closer to a finale.
My noble friend the Minister set out the present position for the benefit of the House. I am sure that we are all grateful to him for that. I will not repeat the arguments made by my noble friend Lord Stoneham of Droxford and the noble Baroness, Lady Prashar, who, as the respective chairmen of the relevant EU sub-committees, gave your Lordships a clear exposition of the current situation. Having been involved with the first report, it is enough for me to say that I share their concerns without exception. I also share the concerns of the noble Lord, Lord Boswell, about the failure to provide an impact assessment in respect of those measures that the Government do not wish to join.
Concerns about the timetable are as relevant today as they were when they were expressed in the first report of your Lordships’ committee in 2013. I have always believed that ensuring continuity in the application of those measures is of vital importance and that exercising the block opt-out was unwise given that there has never been any suggestion that the measures into which we do not want to opt back have any serious or detrimental effects on the United Kingdom. To have done so was of benefit only to those who wished to strike a pose and say, as they have said, that they had brought some power back from Brussels. It is wholly illusory, and our political effort and capital might have been better spent on some of the more important issues which face the European Union and its member states.
In May of this year, when the matter was last discussed, I said that I had a feeling of apprehension, if not depression. It may be something to do with the state of my health but that feeling continues. Why is that? It is because we have still not concluded our discussions in Brussels which would enable us to put a final package before Parliament. ln the other place, there are demands for separate consideration to be given to the European arrest warrant. We have moved from the position adopted in our debate in May, when my noble friend Lord Taylor of Holbeach expressed the hope that the second and final vote could be taken prior to this impending Summer Recess. However, in fairness, he qualified his hope—no doubt, in the light of experience—by adding that it would in any event take place,
“well ahead of 1 December”.—[Official Report, 8/5/14; col. 1621.]
Last Thursday in another place, my right honourable friend the Justice Secretary said at col. 548 of Commons Hansard that,
“we still have to complete some areas of discussion in the Council, so I cannot say that we have finally resolved all the issues in Brussels”.
He added, at col. 549:
“We still have work to do in … Brussels and in both Houses of Parliament”.—[Official Report, Commons, 10/7/14; col. 549.]
Will my noble friend tell us what these issues are, what the work is, and how long it is proposed that it should take?
By my calculations, which may not be wholly reliable, there are some 136 days until 30 November, out of which we take some 70 days of parliamentary recess, leaving us 66 days to bring this to a conclusion in Brussels, have a proper debate in both Houses and a vote. We are taking ourselves to the brink over some very important matters.
In conclusion, we cannot undo the opt-out and the Government will have to live with any consequences which may flow from it but I hope that we can at least learn from this experience—namely, that negotiations in Europe take time and you cannot take other institutions and states for granted as they, too, have positions and concerns. In the light of this, I trust that if my noble friends are tempted to bring the European Union (Referendum) Bill back to this House, they will bear in mind the extreme danger of trying to put detailed negotiations, the details of which we do not know, in a straitjacket by imposing a referendum date of 2017. That exercise will make this opt-out performance, which has taken nearly two years since the Prime Minister first announced it somewhere in Brazil and is not yet completed, look like an afternoon tea party.
My Lords, I have the privilege of being a member of your Lordships’ EU sub-committee dealing with home affairs, health and education. The issue of the opt-out and opt-ins has been of concern to the committee and to the House for some time. I have lost count of the exact number of meetings, evidence sessions, witnesses, reports and debates that have addressed the issue of Protocol 36, but I do know that on 23 July last year this House debated and approved the Government’s then list of 35 JHA measures they proposed to rejoin. In our debate on the opt-out and opt-ins on 23 January this year, I repeated that I still thought that the Government’s selection of those 35 measures was both well chosen and coherent. I also repeated, as I do again now, that I thought that the whole exercise was completely unnecessary. In that debate, along with other noble Lords, I urged the Government to add a further four measures to the list of 35.
As has already been said by the noble Baroness, Lady Prashar, these were the framework decision on combating certain forms of expression of racism and xenophobia by means of criminal law, and rejoining the European Judicial Network, the European probation order and the international convention on driving disqualification. I also noted that there were other technical measures that the Government would probably have to rejoin in order to properly implement Europol council decisions.
While the set of rejoin measures before us today, as we have heard, is not the same set as we debated in January, there are still 35 measures on the list. However, this is a coincidence and it is mildly confusing. This is because, essentially, five measures from the original list have been dropped and five new measures have been added. At least, I think that that is the case. The documentation on all this is very far from straightforward. The Home Secretary herself, in the Commons debate last week, was momentarily uncertain about the status of certain measures.
Command Paper 8897 is not a lot of help. Other noble Lords have remarked on its lack of a table of contents, the lack of an index to the impact assessments, and to their apparently random ordering. Of the five new additions to the list, three appear to be technical measures necessary for continued participation in the Europol decision, which is what we expected. One new measure is also technical or quasi-technical, and this is to do with the requirements for the Schengen Information System II, and is wholly unobjectionable. In fact, it is welcome. The final new addition is the rejoining of the European Judicial Network. Your Lordships have argued strongly for this in the past, and I am very pleased to see it reappear.
Five rejoins were proposed in January which have now been dropped. They included two that have been “Lisbonised”, or in other words amended, repealed or replaced by post-Lisbon measures. One further missing measure is the setting up of a network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes. However, as the Minister has said, this has been replaced by the inclusion of the measure to join the European Judicial Network.
One final missing measure is the improvement of co-operation between special intervention units of member states in crisis situations. The Government wanted to rejoin this measure, but would not do so if this involved participating in the Prüm decisions, as the Commission asserted that it did. As the noble Lord, Lord Taylor of Holbeach, has already said, the Home Secretary made it clear in the House of Commons that we have neither the time nor the money to implement Prüm by 1 December. She said that it would be senseless for us to rejoin it now and risk being infracted. I agree with the last part of this, and I am glad that the Government have agreed to run a small-scale pilot to test the implications of running a fully Prüm-compliant system.
However, all this does raise a question. We wanted to rejoin the special intervention measures because we thought it was in the national interest, but now we are not going to. Can the Minister explain what we lose as a result? What is the damage or loss to our national interest as a result of not joining the measure which they set out to join? In this exchange of five measures in and five measures out, the Government have not included three out of the four additional measures recommended by our committees. They have not included the racism and xenophobia measure, nor the absolutely uncontroversial and very sensible international convention on driving license disqualification. Very disappointingly, they have also not included the European probation order.
In the debate in the Commons, the Justice Secretary repeated his commitment to looking again at the measure when there is enough evidence of it working, to see whether or not there would be benefits to the UK in taking part. He also committed to publishing an assessment of the potential impacts of taking part. This is not what the committee proposed, but at least it will keep the issue alive. The debate in the Commons is also instructive for other reasons. There were 23 speakers in all, 18 of whom were Conservatives. The debate reads very like the recording of a rather bitter family disagreement.
All this confirms my view that the whole enterprise has been a sad waste of time. The Government have provided no evidence that any of the measures they are opting out of is in the least harmful to the United Kingdom, and they have declined to produce impact assessments for any of these measures. That does raise the question of why they are bothering. Some commentators have said that the whole exercise has been designed to satisfy Tory Eurosceptics in the House of Commons, but if you read last week’s debate that certainly does not seem to have worked out very well.
It is not only the absence of any evidence of harm in the opt-outs that is disappointing. There is a new absence that is even stranger. In evidence to our committee, the Justice Secretary relied heavily on the possibility of unexpected judgments from the ECJ as a reason for opting out of the list of measures. I have carefully read the impact assessments in the Command Paper, and there is no mention anywhere in any of them of the possibility of adverse or unexpected rulings by the ECJ. Can the Minister explain why this rationale for opting out does not appear in the impact assessments? Do the Government now believe that the possibility of unexpected ECJ rulings is not a reason for opting out of the measures?
Finally, there has been sharp criticism today of the process the Government have adopted in dealing with Parliament on this whole matter of Protocol 36. I do not propose to repeat all that criticism—although I have already noted the unsatisfactory nature of the latest Command Paper—but I will say that I am glad to see the current list. I am glad to hear the Justice Secretary repeat his promise to the House of Commons of a vote on a finalised list. When the Minister replies, would he reassure us that that this commitment also extends to this House?
My Lords, the Minister has introduced our debate today with his customary clarity and courtesy. If I have some critical things to say about the Government’s handling of Protocol 36 of the Lisbon treaty, of the block opt-out and of the reinsertion negotiation—which looks as if it may now be close to closure—that in no sense detracts from my respect for the way that he has managed the debates in this House. I rather suspect that he, like me, would have felt some relief if this had indeed marked the final parliamentary stage in this saga, but that is not to be. I understand from what the Home Secretary said in the other place that there will be a full debate and vote there at the conclusion of these proceedings. Like the noble Lord, Lord Sharkey, I would be grateful if the Minister would confirm that the same will be true in this place.
I will not weary the House with a detailed reprise of the previous stages of our debates. Suffice it to say that your Lordships’ EU Select Committee remained unconvinced by the Government’s case for triggering a block opt-out in the first place. We also found serious fault with the Government’s failure to live up to their original commitments on consultation before they took any decisions, and we believe that the list of reinsertion items should have been a bit longer. All that is now water under the bridge. Last July, this House—unlike the other place—endorsed the list of 35 reinsertion measures in Command Paper 8671. I hope that some lessons will be learnt for the future and that some of the mistakes made will not be repeated.
Command Paper 8897, the White Paper that we are debating today, lists and provides impact assessments for 35 measures that we hope to rejoin on 1 December. As the Minister made clear, those measures are not in all respects the same as the 35 that we debated last July, five having fallen by the wayside for reasons that other noble Lords have mentioned, and five having been added to the list, some of them drawn from the list suggested by your Lordships’ Select Committee in its second report last October. I express gratitude for the fact that these measures in our proposal of last October have been rejoined, or are candidates for rejoining. I note with some amusement, however, that the Home Secretary did not care to attribute much credit to this House for the additions to the list, nor—I was fascinated to see—did the Order Paper in the House of Commons even refer to the two extremely lengthy reports prepared by this House. Among the long list of reports from Select Committees, it referred to all the fairly content-free reports that the Commons’ own committees produced, but did not refer to the reports from your Lordships’ House. I deduce from this that the length of the corridor is quite long.
In any case, the Minister has explained the list, and the additions show some flexibility which is to be warmly welcomed. Your Lordships’ House can, as I say, claim credit for some of that. I only wish that the list of additions could have been a bit longer. I remain completely baffled by the rationale for our refusing to proscribe the crimes of xenophobia and racism. I do not think that that is in the sense of what are known as British values, and I am sad that we have not rejoined that.
On the matter of impact assessments, the ones before the House have been provided in a very short time before our debate, and in an even shorter time before the debate in the other place. I do not think that that was very satisfactory. Having examined the debate in the other place, I did not notice a great appetite for grappling with anything as complex, detailed or factual as the impact assessments; but, nevertheless, they did not have very long to think about them. That really is not the way to handle parliamentary process. Moreover, we have still not been given any impact assessments for the 90 or so measures we are not going to rejoin, despite repeated requests for them to be provided—most recently today by my noble friend Lady Prashar and others who spoke in this debate. Withdrawing from these measures will of course have an impact. I do not imagine that the Minister is going to rise at the end of this debate and tell us that it will not have an impact. If he does, he will of course have to answer the question: why on earth are we withdrawing from them if there is no impact? Let us assume that they do have an impact. In that case, Parliament deserves to be told what that impact is. It has not been. I think that that was a bad way of handling this, and I continue to think so.
I think that it is right to dwell for a moment on one other specific item that is on the list of measures that the Government wish to rejoin, the European supervision order, which provides for our citizens and, indeed, the citizens of other member states who are indicted in another member state and extradited under an arrest warrant, to be bailed in their own country until such time as their case is brought to court. This is, of course, the sovereign remedy to the injustice that occurred in the notorious Symeou case, when one of our citizens languished in a Greek jail for many months before being brought to trial. Had we respected the deadline in the European supervision order legislation—which we agreed to ourselves—we would have introduced that legislation in this country in December 2012. But we did not. We did not respect that deadline and so the European supervision order was caught up in the cat’s cradle of Protocol 36, block opt-out, reinsertion, et cetera. Now the earliest it will become available—the possibility for a British citizen to be bailed in this country if they are accused of a crime in another member state—is December 2014. For two years, therefore, British citizens have been deprived of any possible recourse to that relief. That is not an outcome of which we can be unduly proud.
That said, I pay tribute to the tenacity and flexibility with which the Government have handled the last year of complex negotiations in Brussels. Credit needs to be given—and I would give it—to everyone from Ministers down through officials and members of the UK permanent representation, who I know have put in a huge amount of time on this. In fact, as I have said in previous debates, this Government did not devise the infernal machinery of Protocol 36, they were handed it when they took office.
Are there any wider lessons to be learnt from this episode? One is that it is in our national interest to participate actively in the European Union’s justice and home affairs work if we are to combat effectively the rising tide of serious international crime. Noble Lords might not have thought that from listening to last week’s debate in the other place, redolent as it was with references to every statute from Magna Carta onwards being trampled under foot—but that, fortunately, was the conclusion of the Government as well when they decided to rejoin the 35 measures that we are discussing today, and when, on a day-by-day basis and in a pragmatic way, they opt in to new justice and home affairs measures. It is the view that was endorsed by this House last July.
As we approach decisions on these other tricky issues relating to our EU membership, let us not forget that it is seldom a clear black and white issue, and that flexibility and a spirit of compromise can often produce the best result.
My Lords, I shall make only a short intervention in today’s debate. I chair your Lordships’ post-legislative scrutiny committee on the Extradition Act 2003. We are at a very early stage in our work. We have heard some evidence but we have reached no provisional conclusions at all. However, one thing is absolutely clear to us. The effect of not opting back in to the European arrest warrant is to tear up Part 1 of the Act. There is no time now to put in place any form of alternative arrangements for the countries listed in Part 1 of the Act—our European Union colleagues—because the legal status quo ante no longer exists.
We have heard plenty of criticisms about the domestic implementation of the framework decision directive and of the framework decision directive itself. However, there are other ways of dealing with that other than simply not opting back in.
In the real world, the only way open for us to continue to have extradition arrangements with our closest neighbours, with whom we have freedom of movement, is to opt back in. Not to do so in practice will precipitate anarchy. To do that would be very foolhardy, to put it in parliamentary language.
My Lords, I am very pleased to follow that brief but very powerful intervention from the noble Lord, Lord Inglewood. I start by very sincerely commending the Minister for his diligence. If I am right, he has been on parade on the Front Bench every day this week. He dealt with the Bill before this, of which he did every stage throughout the whole of yesterday and today, and now he is dealing with this business. He must have done something awful in a previous life to deserve that. I certainly think that he, more than any of us, will have a well-deserved holiday the week after next. I know where he is going; I am sure he will enjoy it. I hope I am not going to be too hard on him today, but like my noble friend Lord Hannay I will be a little hard on the Government.
I agree absolutely and completely with the noble Lord, Lord Sharkey. This has been a totally unnecessary and costly exercise, one that has kept us, the Government and the other place preoccupied for far too long, when, as has been said by a number of Members on both sides, we could and should have been doing many other more important things. This opt-in, opt-out, opt-in, opt-out was described by one member of our European Union Committee as a sort of European hokey-cokey. That is what it has become. The way it has been dealt with has become a bit of a farce, but it is a matter of great seriousness.
As my colleague the shadow Home Affairs Minister in the other place, the right honourable David Hanson, said, what was supposed to be the Government’s great show of repatriation and Euroscepticism—the great opt-out—has in fact become the great opt-in. That is shown by the number of important measures we are opting back in to. Any idea of a great repatriation has been mere window dressing for the purposes of the right-wing, anti-European Union Back-Benchers. From time to time I find it irritating that one person in particular, Sir William Cash—I am a friend of his in a number of ways—should have such a huge influence on the way in which the Government determine their European policy. It is astonishing. It is about time he was stood up to. My noble friend Lord Hannay was saying how much the other place seemed to ignore our report. I hope we will stand up to them in our European Union sub-committee and say that we want to ensure that these matters are considered rather more conscientiously and in a more balanced way than is done by the chairman of the European Scrutiny Committee in the other place.
Let us look at what has happened. Some of the measures we are opting back in to are major, important measures, and we are rightly opting back in. The European supervision order allows British subjects to be bailed back to the UK rather than spending months abroad awaiting trial. That is very important. The prisoner transfer framework decision helps us to remove foreign criminals from British jails. We are rightly opting back in to both those important things, as well as the measure providing for joint investigation teams, the European criminal information system and the Naples II convention, which is the principal tool for customs co-operation. Why did we even contemplate opting out of them? Many of the ones we are opting out of, to give this whole exercise some very small degree of credibility, are very insignificant and minor matters. As my right honourable friend David Hanson said, they are,
“not relevant, not appropriate and not needed now”.—[Official Report, Commons, 10/7/14; col. 500.]
For example, we are opting out of a directive on international crime that closed down years ago. Measures on cybercrime and mutual legal assistance that we are opting out of have been superseded by other measures to which we have signed up. Measures such as accession never applied to us in the first place. Therefore, it is of no import that we are opting out of such measures. We are opting out of some other measures simply because we have legislation dealing with those issues already. For instance, the Bribery Act 2010 and hate crimes legislation mean that we do not need some of the measures that we are opting out of.
The fact that we are signing up to so many important measures, and that many of the measures we are opting out of we are not doing on the basis of repatriation, shows that the Government’s critique of Europe holding far too much power and far too much jurisdiction over us is overblown. Let us remember that it is a Conservative Home Secretary who is pursuing this strategy, which basically now admits and agrees that a lot of these measures are absolutely necessary. These are not federalist land grabs by the European Union. I hope that this debate will provide an opportunity for a message to go the House of Commons to treat this matter seriously.
Finally, I hope that the Minister will give us a clear indication in his reply as to when this matter will be finalised. The noble Lord, Lord Bowness, who in many ways is my noble friend, spelt out the timetable and the number of days that there are in which we are able to make this decision. We will not be back until the middle of October and this has to be done by the end of November. There is not a lot of time for it to be done. As we know, not just Europe but Whitehall will be on holiday for a good few months. I hope that the Minister will give an indication in his reply as to when we will come to a decision. As a member of the European Union Committee, I am glad to have the opportunity to talk on this matter. I hope that those Members of this House opposite who I know are aware of the importance of our membership of the European Union will stand up and be counted and face up to some of the people at the other end who are not quite as enthusiastic as we are.
My Lords, perhaps I may echo the remarks made by the noble Lord, Lord Hannay, about the infernal mechanism by which the Government inherited the opt-in opt-out measures perceived by those outside these Houses and in Whitehall as a sort of vacillation. As the noble Lord said, the Government had no option but to take account of these.
My right honourable friend Theresa May put it succinctly in a Statement in another place in July 2013 when she said:
“For reasons of policy, principle and pragmatism, I believe that it is in the national interest to exercise the United Kingdom’s opt-out, and rejoin a much smaller set of measures that help us to co-operate with our European neighbours in the fight against serious and organised crime. I also believe that Her Majesty’s Government must strike the right balance between supporting law enforcement and protecting our traditional liberties”.—[Official Report, Commons, 9/7/13; col. 180.]
From the remarks made by my noble friend the Minister, I am pleased that the Government are taking some cautious steps towards achieving that aim.
In view of the Minister’s remarks, some of what follows may be slightly historic. In the past, objections were raised about a potential loss of control of domestic police and criminal justice authority. Opponents were also concerned that the UK’s common-law tradition would be undermined. It is the view of Sub-Committee F that both these measures are in the national interest and are vital to our national security. We also argue that the measures would provide the benefits of legal clarity, making a stronger and more consistent application of measures throughout the EU.
The experience so far is that there is no risk to the common-law tradition from any police and criminal justice measures or judgments. Withdrawing from either Europol or the EAW would result in the UK having to rely on less effective means of co-operation and a series of bilateral agreements, and a loss of influence over future criminal justice policy. It is the view of the sub-committee that these police and criminal justice measures have an important role to play alongside domestic courts in safeguarding the rights of citizens and upholding the rule of law.
Europol has undergone a most effective period under the direction of Mr Rob Wainwright of the United Kingdom. With the increasing development of global crime, the sharing of data and intelligence is absolutely essential. Should we be outside Europol, any sharing of data would be a matter of concessions and good will, which would be a far from satisfactory means of operating. I am pleased to see the noble Lord, Lord Blair, in his place, as well as seeing the noble Lord, Lord Stevens, earlier in this debate. I read the transcript of Mr Wainwright’s evidence and he was specific that the measures being taken in Europol had the complete support of the national chiefs of police in the United Kingdom. Nevertheless, the possible ceding of domestic police powers is a sensitive issue with the public, and I should welcome the Minister’s assurance that in the opt-in negotiations Europol will not be given the power to direct police forces of the United Kingdom.
Much has been said in this debate about the European arrest warrant. This has been in operation for some 16 years. Let us be clear that this is not the perfect system for apprehending and repatriating criminals across EU borders. There have certainly been cases of pre-trial detention in poor prison conditions—but these could occur under any alternative systems of extradition. I am convinced that as it now stands the EAW works well. Any other system would inevitably make the extradition more protracted and cumbersome, potentially undermining public safety. The great advantage of the EAW as it has been developed is its speed. Extradition from countries such as Spain, which in pre-EAW days would have taken years, can now be accomplished in a matter of weeks.
I must remind your Lordships that this measure has over the years of its existence been progressively refined. For example, the Anti-social Behaviour, Crime and Policing Act, to which my noble friend Lord Stoneham referred, contains measures to ensure that an arrest warrant can be refused for minor cases. The European investigation order can be used to enforce fines, where police forces and prosecutors can share evidence and information without requiring the extradition of a subject at the investigation stage.
The prisoner transfer framework decision, also referred to by the noble Lord, Lord Foulkes, can be used to enable UK citizens extradited to and convicted in EU member states to be returned to the UK to serve their sentences here. In certain circumstances the EAW issued in other member states can with their permission be withdrawn, and this measure can be used to enable sentences to be served in the UK. The mechanism also makes use of the growing practice of videoconferencing, for instance. The noble Lord, Lord Hannay, referred to the European supervision order. I will take this opportunity to say that the noble Lord gave tremendous leadership to our committee—and in my case a great degree of education. This mantle has been taken on with great distinction by the noble Baroness, Lady Prashar.
In our follow-up report on EU police and criminal justice measures and the UK’s 2014 opt-out decision, we made it clear that there were a number of other measures that the UK should seek to rejoin. These measures have been discussed at length in this debate. The report concluded:
“We are concerned that the Government have given insufficient consideration to the possible substantive and reputational damage of not seeking to rejoin these measures”.
I noted the letter to my noble friend Lord Boswell from my right honourable friends the Home Secretary and the Lord Chancellor. They have addressed some of these concerns. In particular I am pleased that the Government will seek to rejoin the European Judicial Network, which was one of the recommendations in our report. My noble friend’s reply to the letter from my right honourable friends drew attention to a number of documentary points that needed clarification—I say that with some delicacy—and in particular to the remarks in their letter on the deal reached “in principle” and to the,
“technical reservations expressed by some member states”.
Like my noble friend, I await with interest the clarification from my noble friend the Minister.
I am grateful for the Minister’s assurance that there will be full parliamentary scrutiny of the progress of these negotiations. I am grateful also that we have been assured of this and, with other noble Lords, that this House will be included in these debates.
My Lords, it would be quite wrong to go through this debate this afternoon without expressing a real word of appreciation to the noble Lord, Lord Boswell, for his strategic leadership, and to the chairs of the two relevant sub-committees, the noble Lords, Lord Bowness and Lord Hannay, and currently, of course, to the noble Baroness, Lady Prashar, and the noble Baroness, Lady Corston. We are fortunate to have the calibre of leadership that these five people have provided and do provide on these matters.
I keep thinking back to the evidence that we took in our inquiries in preparation for these debates. What became increasingly powerful was the evidence from all the people working on the front line of this aspect of our national security that it was very important indeed to be engaged in the European institutions. One after another, they kept telling us that the quality of the work would be undermined if we were not engaged. Of course, that is hardly surprising because the reality in which we are living is that large-scale—massive-scale, sometimes—international crime is international; it does not respect national boundaries. Therefore, international co-operation is indispensable.
It is equally clear that other matters of home affairs cannot be solved within national boundaries and that they require international co-operation. Of course, the European Union provides a very practical and real opportunity for that co-operation to take place in its various institutions. I think that it is very sad indeed that in all the debate about whether or not we should remain in Europe, dominated as it is by insularity and, even worse, xenophobia, there has been a failure in leadership to explain to the British people why membership is indispensable to their well-being.
Back in the 1970s, I was the Minister of State in the Foreign Office who had responsibility for Europe. Even in those days, I was beginning to be concerned because the culture was that you went into a meeting in Europe and you had to come out and say to the British media, “I fought for the British people and I withstood these European dangers and I upheld British interests”. Of course, the real challenge for leadership is to understand—and to enable the British people to understand—that we cannot look to our interests as a community within Britain without looking to the well-being of the European Community of which we are a part, because we are inseparable from that community in terms of the challenges and threats that present themselves, and we need to co-operate in order to be able to meet those adequately.
From that standpoint, I think that opting back in to the provisions that are now before us is crucial. I wish we had never been through this exercise because, like others, I feel that it has undermined our whole strength and negotiating position within Europe. In fact, if I may say so, one heartening thing from my standpoint is what happened recently with our former Leader of the House going to Europe, because I think he is exactly the sort of constructive, positive person that one needs participating in those institutions. I, for one, wish him well. I think that he has great ability if he brings it to bear in these spheres. But he will be absolutely helpless if he is not supported by a culture in our country among the political leadership which says that the work he is doing is essential because the interests of men, women and children in this country in terms of their security and safety is dependent on this effective co-operation with our European partners. From this standpoint I hope that the negotiations go well.
There is only one other point I would like to make. I thought that the point made by the noble Lord, Lord Boswell, in his introductory remarks was so important. There is a very big danger, because just supposing that we have not concluded the agreement for our opt-back on some of these arrangements, what on earth will happen on 31 December? There is going to be a real threat and danger to the British people because there will be nothing in place. If I may refer back to the lively debate we have just had on another matter earlier today, one of the arguments applied by those who were in favour of what was before the House was that we simply had to have something in place. We could not suddenly pull out of all the current arrangements because that would be irresponsible. Well, if that applies there, believe me, this will apply in the realm of security and the fight against global crime.
I hope desperately that we are successful, but it behoves this House, of all places, to provide the kind of principled, cultured and informed leadership in the debate that says, “Do let’s stop this introspective nonsense. Let us recognise that we are going to build a strong future for the British people by success on these fronts”.
My Lords, this has been a useful and important debate today on the home affairs and justice opt-outs that the government are exercising. The first duty of any Government is to keep their citizens safe and this debate enables the House to consider these important issues and explore the actions taken by the Government. The opt-out of approximately 130 justice and home affairs measures and the opting back in to certain measures before 1 December must not be damaging to the law enforcement agencies and the important work they are doing.
We on these Benches are not against opt-outs in principle. These opt-outs are only possible because of a provision negotiated by the previous Labour Government when signing the Lisbon treaty in 2007, but your Lordships’ House will want to have further assurances from the noble Lord, Lord Taylor of Holbeach, that the Government have got their thinking right and that our national security and the fight against crime are not compromised.
I also think at the end of this process someone should look at what we have gone through—the administration, the cost—and examine what has been delivered. I am not sure who that should be—possibly the Public Accounts Committee or the Home Affairs Committee in the other place. Certainly there has been a lot of cost for not much delivered.
The noble Lord, Lord Taylor of Holbeach will be aware of the Members in his own party, in addition to those on these Benches—in fact, Members on all sides in this House—who are concerned that we have a process that delivers very little benefit, for a lot of work and a lot of expense, with not very much to show for it in the end, as my noble friend Lord Foulkes of Cumnock said.
We believe in retaining our co-operation with Europe on policing and criminal justice matters. Can the Minister address why the Government did not secure guarantees of agreed opt-ins on these important crime-fighting measures before exercising this opt-out? That would have been a sensible precautionary measure. I was, however, pleased to hear from the noble Lord that discussions have gone well and we hope that agreement is very close.
We must not forget that there are thousands of organised crime groups in the EU involved in drug trafficking, people trafficking, cybercrime, online child exploitation, kidnap, money laundering in addition to terrorism and threats to our national security. Cross-border crime is a reality and we need 21st century tools to meet this challenge.
I have told the House before that I had the privilege of visiting the police unit in London that deals with card fraud. I saw examples of how criminals were using every modern technique to steal people’s money. It is cross-border and it does not stop at Dover. The only way to catch the perpetrators who are stealing money from our citizens, costing the banks millions of pounds and bringing misery to hardworking families is to have cross-border co-operation with other law enforcement agencies across Europe. It has been raised before, but can the Minister give his reaction to the concerns expressed that the new arrangements will not be in force in time and that without sufficient transitional measures there would be a gap in terms of the UK’s capability to carry out its work against international organised crime and terrorism? Can the Minister give the House an absolute assurance that that will not be allowed to happen and that provisions will be in place? I agree with the comments made by the noble Lord, Lord Boswell, when he expressed concerns about the measures that have not been Lisbonised and how the impacts have not been properly assessed, and I agree with his comments about the transitional arrangements.
I am pleased that the Government have decided to opt into the European arrest warrant. The UK has deported more than 4,000 people under this scheme to face justice and more than 600 have been returned to the UK to face justice here. There are numerous examples of criminals being brought to justice thanks to the European arrest warrant. On 24 March this year, Francis Paul Cullen, who committed serious sexual assaults on children over a period of three decades while serving as a priest in Nottinghamshire and Derbyshire was brought to justice. He fled the UK in 1991, but finally, after 22 years on the run, he was extradited from Spain on a European arrest warrant. He pleaded guilty earlier this year in Derby Crown Court and was sentenced to 15 years in prison—justice, finally, for his victims.
As the noble Viscount, Lord Bridgeman, mentioned, under the provisions in existence before the European arrest warrant—that is, the 1957 European Convention on Extradition—Francis Paul Cullen’s 22 years on the run would have rendered him immune from prosecution by the Spanish authorities, because they have a statute of limitations which means that he could not come back to the UK.
There is also the case of David Heiss, who murdered British student Matthew Pyke in September 2008, was arrested in Germany a month later and brought back to the UK the following month. Before the European arrest warrant, Germany did not surrender its own citizens to any other country and had a constitutional bar on them doing so. Without the European arrest warrant, it is possible that these two criminals would not have faced justice in a British court. My noble friend Lady Smith of Basildon has previously quoted Beatrice Jones, whose mother, Moira Jones, was abducted, raped and murdered by an EU national. Beatrice Jones said:
“He fled the country but because of the dedication … of Strathclyde police along with the cooperation of Slovakian police, he was arrested and extradited back to this country”.
At the other end of the scale, no one wants to see trivial matters clogging up the courts, wasting time and costing money. The principle of proportionality is therefore important. I welcome the plan whereby a judge will consider whether the alleged offence and likely sentence are sufficient to warrant someone’s extradition. Can the Minister give the House an absolute assurance that the European arrest warrant will be in place to be used on 1 December 2014?
There are other measures that I am pleased that the Government have indicated that they are opting back into, including five of the six mutual recognition agreements. It is right that in areas where financial penalties of more than €70 are imposed—for example, road traffic offences—people can be pursued.
It would be helpful to the House if the Minister could give more information on the Government’s thinking in respect of the judgments in absentia framework decision and the European supervision order. These measures contain important protections for defendants, and the second measure provides that non-custodial pre-trial supervision may happen on a voluntary basis in the defendant’s home member state. I agree with the comments of the noble Lord, Lord Hannay of Chiswick, in that regard.
The previous convictions framework decision, which requires courts to take account of a defendant’s previous convictions in any other member state to the same extent as they would previous national convictions, is another important measure in the fight against crime.
It is good that the Government are opting back into the prisoner transfer framework decision, which provides for the transfer of foreign nationals who are EU nationals to serve their sentence in their home country provided that they have more than six months to serve. However, I am not sure that there has been the speed or number of transfers that we would all like to see. The House will be aware that it costs about £40,000 to house a prisoner here in the UK. I remember the Prime Minister making much noise before the last general election about the number of foreign criminals in UK jails. Four years later, I have not seen that much followed through. When are we going to see a real reduction in the number of foreign criminals in our jails?
The probation measures framework decision is the one measure that the Government are not opting back into, as your Lordships have heard earlier. Again, it would be helpful if the Minister could go into some more detail as to why the Government have taken that decision and what would have to happen for them to opt in to it—I know that they have indicated that they may do that in the future.
As I said earlier, most of the areas where the Government have decided not to opt back in are of a minor or trivial nature. In other cases, the Government intend to follow the provision and believe we have sufficient powers to deal with the issues that arise. What is the process for keeping this under review? Can the Minister confirm that, if as part of any review the Government decided that opting back in the future would be a good thing, they would actually do that?
We are not against opt-outs in principle, but we have concerns about how this set of opt-outs has been handled. Many other noble Lords have expressed that concern in this debate. Concerns have been expressed about the adequacy of planning for opt-ins and in particular the provision of transitional measures in the event of agreements not being reached in time. As I said earlier, if you examine what actions are being taken by the Prime Minister, you wonder what they amount to. I am firmly of the opinion that this is an expensive and lengthy exercise that does not deliver very much. Is it not the reality that this whole exercise is an attempt to deal with the difficulties that the Prime Minister has with his Back-Benchers in the House of Commons—the noble Lords, Lord Stoneham of Droxford and Lord Sharkey, made reference to that, too—as well as with the wider Conservative Party and UKIP, which of course the whole Tory party is terrified of? It has been found out, however, as there is no real repatriation of power. Instead, the UK is doing the right thing and opting into a variety of measures because it is important to do so.
I also associate myself with many of the comments of the noble Lord, Lord Bowness, about the waste of political capital and how our energies could be much better spent elsewhere in Europe. Like the noble Lord, Lord Sharkey, I have actually looked at a number of European debates in the House of Commons. When I read the contributions of Conservative Members I am reminded of what UKIP meetings look like. Like other noble Lords, I welcome the decision to rejoin the European Judicial Network and the three Europol measures. However, I ask the Minister to explain further why we are not joining the European Genocide Network.
In conclusion, I join other noble Lords in thanking the noble Lord, Lord Taylor, for the way in which he has handled these matters. I like the noble Lord very much and any criticism I have given from the Dispatch Box is not directed at him personally but at the Government. He has much to report back to the House and I look forward to hearing from him.
My Lords, I thank the noble Lord, Lord Kennedy of Southwark, for the kindnesses he has shown, particularly in his last remarks. He made a number of comments about the current political scene. I have very long memories of this issue in politics, so I do not think that it is necessarily very productive to go down other, party-political routes. In fact, we have a tradition in this House of trying to deal with these matters on their merits. I think that the way we handle these debates is very much to our credit.
I thank all noble Lords who have spoken. A lot of points have been raised, which is hardly surprising, as this is a broad subject—even though it is confined to the JHA opt-out matters, there is a lot of detail. I am going to do my best to reply to points that have been raised, but I hope that noble Lords will be happy if I write one of my usual commentaries on the debate. I find that a very useful way of informing the House. Indeed, in considering this matter, I know that it is nice to have things on the record, but it might be something for those who keep the official records to make a note of letters sent by Ministers, or at least to make them available on the website and not just in the Library, so that noble Lords can be aware of those things for the future. I suggest that as a modernising idea, as it is frequently the case that Ministers need to write in order to provide a proper answer that cannot be given in a debate.
I am grateful to the noble Lord, Lord Boswell, for his chairmanship of the Select Committee and the leadership that he shows on these issues in the House. The noble Lords, Lord Judd and Lord Kennedy of Southwark, both raised the question of transitional arrangements with the Commission and what is going to happen on 1 December. It is not the intention to have a gap between the date on which the opt-in will take effect and the point at which the UK can rejoin the measures. We place a great deal of importance on the issue and believe that it is in everyone’s interest to try to eliminate any operational gap between our opt-out taking effect and our continued participation in the measures that we formally apply to rejoin. If it is necessary to use transitional measures, we consider that transitional arrangements could be used to preserve the legal effects of measures that the Government have said they will rejoin, where there is a short operational gap.
The noble Lords, Lord Bowness and Lord Foulkes, asked when we think that the negotiations will conclude. I think that that is a matter that all noble Lords are aware of—that is, we have made good progress on these negotiations. An in-principle agreement has been reached with the Commission on a package of 35 measures. I say, “a package” because it is not the original package, as was rightly pointed out by the noble Lord, Lord Hannay. However, negotiations with member states are continuing and we are confident of concluding a deal ahead of 1 September so that this operational gap will not occur.
My Lords, I thank my noble friend for giving way and I apologise for being troublesome. While he is dealing with this point, perhaps he could tell the House—and I understand the difficulty with negotiations—whether in fact discussions are taking place about transitional arrangements in parallel with the main negotiations. Were we to get much closer to 30 November, it would then be rather late to start putting those transitional arrangements together.
This is a wise Government and all these matters are considered. That is not our ambition. Our ambition is to achieve agreement by that time. There will be an update. We have updated Parliament up to now and we will continue to give Parliament opportunities for scrutiny of the process in future.
The noble Lord, Lord Foulkes, again raised the question of whether this was part of the Prime Minister’s promise to start repatriating powers from the EU. It is a decision that flows from the existing treaty and its protocols that were set in place by the Lisbon treaty, negotiated by the previous Government. If we had done nothing with regard to the opt-out, the default position was that the UK would become subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice. The decision to opt out means that a much smaller set of measures will be subject to ECJ jurisdiction and Commission enforcement powers. We believe that that is what the British public would expect us to do, given that the negotiations conducted by the previous Government led to Protocol 36.
The noble Baroness, Lady Prashar, whom I congratulate on stepping into the shoes of the noble Lord, Lord Hannay, asked whether there was a list of measures subject to the opt-out. We are currently working on producing a full consolidated list of measures that the Government consider subject to the opt-out, and we will provide that shortly.
My noble friend Lord Bowness asked: if the majority of these measures are defunct, in no way harmful to the UK or positive, why bother exercising the opt-out at all? I hope that I have given him some idea of why we thought it was important to deal with this. The ECJ should not have the final say over matters concerning substantive criminal law or our international relations in matters like extradition. That is why the Government will not rejoin over 20 minimum-standards measures on sensitive matters such as racism and xenophobia, or the EU/US extradition agreement. I am clear that our Parliament should have the final say over our laws on these matters, and the Government should be able to renegotiate bilateral arrangements as we think fit.
A number of noble Lords asked why the Government had produced an impact assessment for only 35 measures, not for the full list. The Government have been consistently clear that we will provide Parliament with impact assessments on those measures that we will seek to rejoin. I remember saying that in previous debates. Command Paper 8897 is the fulfilment of that commitment. The UK will not be bound by the rest of the measures from 1 December, and there is therefore no need for an impact assessment.
There was some consideration of the European arrest warrant. As noble Lords will know, we have decided to opt back into the European arrest warrant. We have listened to our EU partners and the UK law enforcement and prosecution agencies, as well as the view of Parliament and indeed our European committees, on this. Critics of the EAW have come to a balanced conclusion on how the EAW can be improved and retain its obvious practical and law enforcement benefits but provide better safeguards for people subject to EAW law. We are satisfied that the reforms made to the EAW will help to address these concerns. My noble friend Lord Stoneham asked whether EAW amendments to domestic law are compliant with EU law. We are confident that they are compliant and are happy to provide more detail by way of the letter I will be sending. We will be able to elaborate and I hope that that will be to the benefit of noble Lords generally.
My noble friend Lord Sharkey said that many of the measures that the Government want to withdraw are more likely to be susceptible to negative ECJ judgments. As I have said throughout this process, the Government are concerned about the risk that the court could make unexpected adverse decisions on the interpretation of pre-Lisbon measures. Given the prospect of an unexpected judgment, and concerns about the drafting of measures and the difficulty of altering EU legislation, we believe that minimising the possibility of an adverse judgment is a sensible and pragmatic approach. It is only correct that the Government consider carefully whether to accept the formal jurisdiction of the ECJ before seeking to rejoin measures. We accept that there is always a risk attached in terms of ECJ jurisdiction if we decide to participate. However, in certain cases it will be in the national interest for the UK to participate and the Government will accept that risk, given the wider benefits of the instrument in question. That is the judgment that rightly rests with the Government in these cases.
My noble friend Lord Sharkey also asked about the special intervention units and whether we wish to rejoin in order to maintain participation in an operational police network at the EU level, called Atlas. We now know that we can continue working through Atlas even if we do not participate in the special interventions unit. This has been confirmed by the Commission, so we will lose nothing by not joining that measure. My noble friend Lord Bridgeman was concerned about whether the UK would rejoin Europol and whether it could force national police forces to act. We confirm that Europol will not be able to force national police forces to act.
A number of noble Lords, including my noble friends Lord Sharkey and Lord Stoneham of Droxford, the noble Baroness, Lady Prashar, and the noble Lord, Lord Kennedy of Southwark, asked what steps were taken at EU level to resolve the problems with the probation measure and what is the timetable for our reconsideration of this? This is quite a complex issue but I think that I have time to address it, because noble Lords will be interested. As the Government set out, it is not in the national interest to rejoin the probation measure at this stage. It is unclear how it would work in practice and we have no evidence to demonstrate that the benefits to the UK outweigh its risks.
We did, indeed, discuss these issues with the Commission. However, we were not able to resolve them. One key issue is that only 14 member states have so far implemented it—and to date it has never been used within those 14 member states. Therefore, we have no practical illustrations of how it would work. We were unable to determine the likely impact of rejoining the measure. In due course, once the probation measure has been used and implemented more widely, and there is sufficient evidence to analyse it, we will reconsider participation after making a full assessment of its impact. I will keep noble Lords informed on progress on that particular measure.
My noble friend Lord Bowness asked about transitional measures and I sought to answer him. I have had a supplementary note to the effect that, in case transitional measures are needed, the matter is being considered in a working group in Brussels; this is parallel to the wider negotiations. Our aspirations are that these transitional measures will not be necessary, but they are being discussed.
That concludes my contribution to the debate today. I thank noble Lords for again presenting the views of the European Union Committee and of this House on an important subject. I will be writing a commentary and look forward to continuing dialogue on these issues. I understand that we have a debate on Tuesday on aspects of the Stockholm agreement. This is not going away. It is a live issue as far as I am concerned, as I am sure it is for other noble Lords.
The following Acts were given Royal Assent:
Supply and Appropriation (Main Estimates) Act,
Data Retention and Investigatory Powers Act.
House adjourned at 4.37 pm.