Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015
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Lord Bates
That the draft order laid before the House on 2 March be approved.
Relevant document: 25th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates)
At the same time as moving the above order, I invite the House to approve the Retention of Communications Data (Code of Practice) Order 2015.
I should inform the House that the Joint Committee on Statutory Instruments and the Lords Secondary Legislation Scrutiny Committee have both considered the instruments that we are debating today. It might help the House in its consideration of these two communications data codes of practice if I briefly outline what the Government seek to achieve by them and why we have brought them forward at this time.
Communications data are the “who, where, when and how” of a communication, but not its content. It is crucial for fighting crime, protecting children and combating terrorism. The House will recall that last summer we enacted emergency legislation—the Data Retention and Investigatory Powers Act 2014. This Act preserved and added safeguards to our data retention powers. These codes are directly consequential on that legislation.
We are debating two codes today because communications data policy can broadly be split into two areas: acquisition and retention. Acquisition is carried out by relevant public authorities, such as law enforcement agencies. Retention is carried out by communications services providers. Noble Lords will see immediately that these areas are linked: data need to be retained in order to be accessed. These codes—a revised acquisition code and a new data retention code—set out the processes and safeguards governing the retention and acquisition of communications data. They are intended to provide clarity and incorporate best practice on the use of the relevant powers to ensure the highest standards of professionalism and compliance in this important investigatory power. We are bringing these codes forward now to ensure that the important safeguards within them—some of which follow concerns raised by the European Court of Justice judgment last year—come into force before Parliament rises.
I turn to possibly the most important new safeguard contained in the acquisition code: police access to journalists’ communications data. As your Lordships will know, the Interception of Communications Commissioner recently conducted an inquiry into this subject. He made two specific recommendations. His first was:
“Judicial authorisation must be obtained in cases where communications data is sought to determine the source of journalistic information”.
His second was:
“Where communications data is sought that does not relate to an investigation to determine the source of journalistic information (for example where the journalist is a victim of crime or is suspected of committing a crime unrelated to their occupation) Chapter 2 of Part 1 of the Act may be used so long as the designated person gives adequate consideration to the necessity, proportionality, collateral intrusion, including the possible unintended consequence of the conduct”.
He said that the revised code of practice, which had been consulted on,
“contains very little guidance concerning what these considerations should be and that absence needs to be addressed”.
The Government immediately accepted both recommendations. We have amended the code to implement the first recommendation as far as is possible in this Parliament and the second recommendation in full.
The acquisition code, which we are debating, now stipulates that law enforcement must use production orders under the Police and Criminal Evidence Act 1984, or equivalents in Scotland and Northern Ireland, when seeking to acquire communications data to identify or determine the source of journalistic information. This is because production orders require judicial approval. This will help to protect the freedoms that journalists and their sources enjoy in the UK. Whenever law enforcement wishes to access communications data to determine journalistic sources—including whenever law enforcement wishes communications data to support other evidence or intelligence of the identity of a journalistic source—the decision on the application will be made by a judge under PACE. However, this is only a stopgap until we can put this requirement in primary legislation in the next Parliament. Therefore, we have also published a draft clause that sets out how we would do this.
Changes to the guidance in the acquisition code have been made to implement the commissioner’s second recommendation. The code expands on the considerations of rights needed—in particular, the right to freedom of expression must be taken into account when appropriate—and it also contains additional guidance on the considerations of necessity and proportionality, including collateral intrusion and unintended consequences.
I turn briefly to some of the other key provisions in the codes. The revised acquisition code enhances the operational independence of the authorising officer from the specific investigation for which communications data are required. It includes new, enhanced protections for those who work in professions with a duty of confidentiality or privilege. We have not gone further in this regard because it is important to remember that we are debating communications data, which are not the content of a communication. In his report, the Interception of Communications Commissioner made it clear that communications data,
“do not contain any material that may be said to be of professional or legal privilege—the fact that a communication took place does not provide what was discussed or considered or advised”.
This important distinction explains why, while we are enhancing the protections for others in sensitive professions, we are making the change to judicial approval only where communications data are sought to determine a journalist’s source. The fact that someone spoke to, say, a doctor does not reveal what was said. However, if you are trying to establish the source of a leak, knowing who spoke to a journalist may be more important than knowing what was said. The acquisition code also sets out expanded record-keeping requirements for public authorities, improving transparency and implementing recommendations of the Interception of Communications Commissioner.
Lord Bates
My Lords, I am grateful to the noble Lord for his comments, some of which I will have to come back to him about in writing, but I can certainly deal with his question about where the 300 responses are. They are now on the Home Office website. I can certainly send him a link to that but they are there, along with details of how they were considered and which elements have been included in the revised codes.
My noble friend Lady Hamwee was right to stress the importance of the protection of journalists. That links to the previous debate, when we were talking about the importance of freedom of speech and academic freedom within university settings and how these were going to be upheld. Equally, the freedom of the press is one of our cherished principles and we need to maintain it. Therefore, having this review undertaken by Sir Anthony May, who is the Interception of Communications Commissioner and a former High Court judge—he is widely respected—was a helpful step. He came forward with two additional requirements to ensure that there were extra safeguards in place and immediately the Government responded to say that they would do just that.
There had been a suggestion to go still further. I know that some of the respondents, particularly the NUJ, were concerned about issues in relation to seeking the journalist’s permission or notifying the journalist beforehand. But that was not something that Sir Anthony May felt was appropriate at this stage. Of course, that would result in a tipping-off situation, which would potentially put lives at risk.
The noble Lord, Lord Rosser, asked why there was no impact assessment of these codes. A full impact assessment was provided for the underpinning primary legislation, DRIPA, which was enacted last summer, so that contains the elements he referred to. He asked whether the code would need to be updated. Clearly, if Parliament enacts new primary legislation, there might be a requirement to produce new secondary legislation, including replacing these codes.
My noble friend Lady Hamwee asked why paragraph 3.75 of the acquisition code says that the Interception Commissioner should be notified of cases involving sensitive professions at his next inspection rather than right away, as this would mean waiting for nearly a year. We have of course consulted extensively with the Interception of Communications Commissioner in drawing up the code. The formulation is that the code is based on what the commissioner believes will best enable him to carry out a rigorous oversight function.
The noble Lord, Lord Rosser, asked whether we have maintained a dialogue with the communications service providers. As my ministerial colleague James Brokenshire said last week, we work very closely with the telecommunications sector and it alerts us to new technological developments that may have an impact on its obligations.
The noble Baroness, Lady Hamwee, asked why the requirement for judicial authorisation provides only for journalists—oh, I do not think that she did ask that, did she?
Lord Bates
It is an excellent question, but I covered that in my pacy opening remarks because I was conscious that an important Statement was due to follow.
The noble Lord, Lord Rosser, asked whether paragraph 2.21 covers social media. As Minister James Brokenshire said at the Report stage of the then Counter-Terrorism and Security Bill:
“A communication can include any message sent over the internet. The legislation relates not to the retention of what the message contained, but purely to the fact that a message was sent”.—[Official Report, Commons, 6/1/15; col. 236.]
RIPA makes that clear and extends the machine-to-machine communications examples, such as the ones that were given.
Lord Rosser
In the light of what the Minister has said, does that mean that it does cover social media or it does not?
Lord Bates
To the extent that social media are messages communicated machine to machine, it does. As to whether the specific examples that the noble Lord, Lord Rosser, talked about, such as tagging on a Facebook page or a tweet, I am going to have to get some further clarification on that and will write to him. But certainly messaging over those platforms would of course be covered.
Lord West of Spithead (Lab)
Surely those aspects that the Minister has just touched on, and about which he says he will write to the noble Lord, Lord Rosser, have to be covered otherwise we have not got the coverage that we require.
Lord Bates
I do not want to be drawn too much, at this stage, into the content of it. I have said that I will write to the noble Lord, Lord Rosser, and clarify that point. The noble Lord, Lord West, is absolutely right. Here, I tread very carefully, with my noble friend Lord King of Bridgwater waiting in the wings, but the communications data Bill, which David Anderson is undertaking a review on—he will report on 1 May—will need to be considered urgently. The types of deep web communications within the communications data Bill were felt to be an important part of providing our security services with the ability that they need to tackle the growing terrorist threat against us. That will be returned to as a matter of urgency in the new Parliament.
Lord King of Bridgwater (Con)
I am grateful for what my noble friend the Minister said. I think that he covered it in his opening remarks. I understood him to say that, as we go forward, both sides of the House now recognise the need for urgent legislation. I think that Mr Alan Johnson has just joined the club of people saying how impermanent this is. In that case, we have to make clear that there will probably need to be some form of revision of the code of practice to take account of what new forms might come forward. There is not much doubt about the speed with which they are coming forward through social media, WhatsApp and the other things that are happening. Probably a few more that we have never heard of will be in operation by the time that we tackle this legislation.
Lord Bates
My noble friend is absolutely right. If there is new primary legislation, it is likely that what will follow is new secondary legislation. If there is new secondary legislation, it is almost certain that the codes that we are talking about today will need to be updated to reflect that. However, I have given undertakings that I will write to noble Lords and I give my appreciation to them for their comments.
Retention of Communications Data (Code of Practice) Order 2015
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Lord Bates
That the draft Order laid before the House on 4 March be approved.
Relevant document: 25th Report from the Joint Committee on Statutory Instruments
Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015
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Lord Bates
That the draft Regulations laid before the House on 2 March be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I shall speak to the Motions to approve the following statutory instruments: the Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015; the Authority to Carry Scheme (Civil Penalties) Regulations 2015; the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015; the Aviation Security Act 1982 (Civil Penalties) Regulations 2015; the Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015; the Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015; and the Civil Procedure (Amendment) Rules 2015.
This secondary legislation has been brought forward to implement measures in the Counter-Terrorism and Security Act 2015. These measures have been debated in this House very recently, as the primary legislation was enacted only on 12 February. During Parliament’s consideration of that legislation, there was widespread recognition of the threat from terrorism and broad support for the measures that were in the Bill. These instruments bring to life some of those important provisions. In passing that legislation in February, the House accepted the need for these new powers.
I should inform the House that the Joint Committee on Statutory Instruments has considered all seven of the instruments that we are debating today. It has drawn the special attention of both Houses of Parliament to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 and to the Civil Procedure (Amendment) Rules 2015. The committee cleared the other five instruments. The Lords Secondary Legislation Scrutiny Committee has also considered all seven instruments and has cleared them without drawing them to the special attention of the House.
It might help the House in its consideration of these statutory instruments if I briefly outline what the Government seek to achieve by them, and why we have brought them forward at this time.
The Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015 bring into force the authority to carry scheme 2015. These regulations are provided for in Section 23 of the Counter-Terrorism and Security Act 2015. The purpose of the scheme is to prevent or disrupt travel to and from the UK by individuals who pose a terrorism-related or other threat to the UK. It also mitigates the threat of terrorist attack against aircraft and, should the threat change, ships and trains expected to arrive in or leave the UK.
International aviation remains a target for terrorists. There have been attempts to launch attacks inside planes using concealed explosive devices and terrorist groups with the intent and capability to undertake such attacks continue to operate. Authority to carry is now an important element of our counterterrorism strategy. The new 2015 authority to carry scheme allows us to respond to the changing threat and prevent individuals who may pose a terrorism-related or other threat from boarding flights from, as well as to, the UK. In order to remain responsive to changes in the threat, it is necessary to include international rail and maritime. The scheme applies to all passengers and crew travelling or expected to travel to or from the UK. If a carrier does not comply with any aspect of the scheme, particularly if a carrier were to carry an individual it had been refused authority to carry, it will be liable to a financial penalty.
The Authority to Carry Scheme (Civil Penalties) Regulations 2015 establish a penalty regime for breach of requirements of the authority to carry scheme 2015. A carrier may be liable to a penalty for breach of a requirement: to seek authority to carry a person; to provide specified information by a specified time; to provide information in a specified manner and form; to be able to receive communications in a specified manner and form; or a requirement not to carry a person when authority to carry has been refused. The scheme specifies that it is the requirements set out in detailed written notices issued to carriers under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006 that must be met under the scheme, rather than those requirements being specified in detail in the scheme itself.
I will now move on to the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015. These establish civil sanctions that may be imposed on carriers who fail to comply with a requirement to provide information under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006. These will complement existing criminal offences. The regulations allow the Secretary of State to impose a civil penalty not exceeding £10,000 for each breach, but a carrier may not be required to pay a penalty if they have a reasonable excuse or have otherwise been penalised for the same breach. The Government’s clear preference is that carriers are able to comply with these requirements. We will continue to work with carriers to ensure that this happens. However, when there is a failure, particularly if it is wilful or negligent, it is important that appropriate sanctions exist to deter repeat behaviour.
The draft Aviation Security Act 1982 (Civil Penalties) Regulations create a civil penalty scheme for addressing non-compliance with certain security directions or information requests made by the Secretary of State under the Aviation and Security Act 1982 in relation to inbound flights. The Secretary of State would have the power to impose a penalty up to a maximum of £50,000. Specifically, penalties could be issued where, in respect of an inbound flight to the UK, a carrier has failed to comply either with a request for information or a direction requiring that certain security measures are applied. The threat to aviation from terrorism remains serious. These regulations help the Government to enforce their powers to specify certain security measures for flights operating to the UK where necessary.
The Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015 gives effect to a revised code of practice for examining and review officers who exercise powers under Schedule 7 to the Terrorism Act 2000 as amended by the Counter-Terrorism and Security Act 2015.
I now turn to the regulations which bring into operation the code of practice in relation to the exercise of powers under Schedule 1 to the Counter-Terrorism and Security Act 2015—the power to seize travel documents. These powers are exercisable at the Northern Irish border area and at ports throughout the UK. They allow for the seizure and temporary retention of travel documents when there is a reasonable suspicion that the person intends to travel to engage in terrorism-related activity outside the UK. Officers exercising the power are required to follow the code, making the code an important safeguard on the use of this power. The code sets out: the process for the training that must be undertaken by officers exercising the power; the procedure for designating Border Force officers to exercise the power under police direction; how the functions under Schedule 1 must be exercised; the information that must be provided to a person subject to the power, and how and when that information should be provided; and the process of reviewing a decision to retain travel documents.
The last of the seven instruments which your Lordships are considering today is the Civil Procedure (Amendment) Rules 2015. The Counter-Terrorism and Security Act 2015 introduced temporary exclusion orders, which enable the Secretary of State to disrupt and control the return to the UK of British citizens suspected of engaging in terrorism-related activity abroad. The temporary exclusion order also enables the Secretary of State to impose certain requirements on an individual on his or her return to the UK. There are two stages of judicial oversight of this measure: a permission stage and an in-country statutory review. This instrument introduces rules of court to govern these proceedings in the High Court and appeals to the Court of Appeal in England and Wales.
I have already mentioned that the Joint Committee on Statutory Instruments reported on this instrument. The Government have acknowledged the issues raised by the committee and has committed to updating the rules by an amending instrument as soon as practicable. That amending instrument will be made by the Civil Procedure Rule Committee, and the process for doing so is already under way. However, as the Government made clear in their response to the Joint Committee, we do not consider that the drafting errors acknowledged render the rules invalid or inoperable. These court rules are essential to ensure that we can operate appropriate safeguards for the temporary exclusion order powers. Accordingly, I hope that your Lordships will support this instrument.
These instruments are needed to implement measures in, or consequential to, the Counter-Terrorism and Security Act 2015. The four border security instruments are required to prevent or disrupt the entry to, return to or departure from the UK of individuals who pose a terrorism-related threat; to mitigate the threat of an attack on an aircraft operating into the UK; or, in the circumstances of children travelling to Syria, to prevent and disrupt travel by individuals who are putting themselves at risk. The Act made important clarifications to the use of the Schedule 7 power, and the revised code of practice for officers exercising that power reflects these changes. The temporary passport seizure code of practice is an important safeguard on the use of that power. The temporary exclusion order court rules are required to implement the judicial oversight of this power in England and Wales. I commend these instruments to the House. I beg to move.
Baroness Smith of Basildon (Lab)
My Lords, this is a larger number of instruments but a shorter debate than usual. We support the regulations and order, but it would be helpful if the noble Lord were able to answer a few questions. To take the last one first, paragraph 8 of the Explanatory Memorandum for the Civil Procedure (Amendment) Rules, on “Consultation outcome”, says:
“The Lord Chief Justice was consulted … Due to the urgency … there has been no public consultation”.
But that is not the outcome; it just says that he was consulted, without saying what the response was. If there was an outcome to the consultation, it would be helpful to know what it was, otherwise there does not seem much point in calling it an “outcome”.
The points made by the noble Baroness, Lady Humphreys, on the Counter-Terrorism and Security Act regulations are interesting and valid ones to look at. I would also have thought that in many cases the officers concerned would not want, in their own interests, to be searching a child, whether of the same sex or of the opposite sex, on their own. If I was their trade union representative, I would probably advise them not to. There are dangers to the child, but there are also dangers to the officers concerned. That is something that perhaps should be examined and considered. Our staff do a very difficult job in difficult circumstances and we would not want them to be in a position where they could face accusations; nor would we want a child to feel uncomfortable and even more frightened than they would already be in such cases. I hope the noble Lord is able to give some reassurance and clarification on those points.
The other point I would like to make concerns the risks identified in the impact assessment. It says:
“Possible risks will be mitigated by monitoring and reviewing the use of the powers”.
The powers will be used by Border Force officers and the police but they are the very people who will also be monitoring the use of the powers, or they will at least be collecting the data to monitor the use of the powers. This has been quite a sensitive issue and has had a lot of discussion. Clearly, I am confident that the Government do not want mistakes; they want to get this right. Can the Minister say anything about how the powers will be monitored? Data will be provided by the officers implementing this provision but the monitoring of it will be quite important so that we can assess how effective it is and how appropriately it is being used, to ensure that it is not used for anything other than the purposes for which it is intended.
The authority to carry scheme regulations and the explanatory memorandums—I am sure that is not the correct plural—all referred to the fact that 28 people or organisations responded to the consultations. Was there one consultation or will 28 bodies respond? Was there one, overarching consultation or separate ones? I think it will be helpful to look at the ones relating to the authority to carry schemes together. It was quite clear that the majority of carriers welcomed the extension of the scope and that was widely supported, although a majority were also concerned that the maximum fine of £50,000 was excessive. I have seen the Government’s response to that. What is important is when that will be implemented. Looking at the Explanatory Note, I am not 100% clear about “best endeavours”; one of the impact assessments also refers to the Secretary of State taking into account how co-operative someone has been. It would be helpful to have a little more guidance on the circumstances in which the Government would pursue action that could lead to a maximum fine. I know that the maximum fine is used only rarely and is intended to be a deterrent but I would like to know the circumstances that would mistake against prosecution in the first place and, secondly, the level of the fine.
The guidance for these regulations has not been published. A lot will depend on what exactly is in the guidance. Is the Minister able to say when we will see it, what the process will be for scrutinising it, whether there will be consultation with the carriers themselves and when it will be brought to your Lordships’ House?
I also picked up the strange issue about mistaken identity. The Explanatory Memorandum says:
“Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.
Surely we should have far more robust processes in place if we want to have confidence in the procedure. If mistaken identity occurs once, it surely should not happen to the same individual a second time, or perhaps I am misunderstanding something here. I would like to know what administrative arrangements are in place to ensure that we do not have a second mistaken identity. Really, what are we doing to ensure that we do not have the first mistaken identity? The issue of identification is crucial to providing confidence in this. I am slightly worried.
I understand that there will be some discussions with the industry about the guidance. I would feel happier to see a willingness to make practical changes in how things work. Quite often we can look at something in theory and know where we want to get to, but the industry may have suggestions on how that works practically rather than just in theory. I would like an assurance from the Minister that the Government will consider changes if the industry comes up with ways in which to make this scheme more effective without undermining the basis for it in the first place.
I have similar points to make on the Passenger, Crew and Service Information (Civil Penalties) Regulations, as similar things have arisen. The Explanatory Memorandum states that:
“The Government’s position however remains that carriers must provide accurate, complete and timely information. Not only is this a legal requirement but they also have a responsibility to ensure adequate steps are taken to protect against threats to their assets, passengers and crew”—
and indeed to the country. If a mistake has occurred, what evidence will the Government require from carriers to ensure that they have used best endeavours? Is there some way of monitoring the processes, procedures and protocols that they have in place? That will be absolutely crucial to ensuring that it works in practice.
On the fifth and sixth statutory instruments, the Minister knows that we have supported the power for passport retention and think that it is appropriate. We still take the view that there should be a power of appeal; that is extremely important. Again, the detail of the code of practice will be crucial and we look forward to more information on that. Can the Minister make clear—just to put it on the record—what changes have been made to the code of practice and any guidance as a result of the feedback on the issues? That feedback is mentioned in the Explanatory Memorandum on these regulations and includes,
“specifying the availability of legal aid and clarifying whether family members may access temporary support arrangements”.
Those issues were raised in previous debates that we have had, and by the Joint Committee on Human Rights. If the Minister can give further clarification on that, that would be very helpful.
That is the extent of my questions to the Minister. If he is unable to address those today, he can write to me, which would be extremely helpful.
Lord Bates
My Lords, I am grateful for the contributions that have been made in the debate. I am deeply conscious that there are a large number of orders and regulations before your Lordships this afternoon. The detail of the questioning is very welcome and important—we are talking about very serious issues—and I guess that it will not be possible for me to answer every particular question today. However, I will certainly undertake to write, and copy it to all noble Lords who have been involved in this debate so far.
I will make one general point about the authority to carry scheme and how it operates—this covers the point that was raised about identity and the possibility of mistakes and, in many ways, touches on the point made by my noble friend Lord Marlesford. This is information that the airlines are currently required to send to the National Border Targeting Centre based in Manchester. The information comes in a particular format: it has the passport as one identifier and the date of birth as another identifier, along with the name. It is hoped that through triangulating those three bits of important information the possibility of a mistake can be eliminated.
My noble friend Lady Hamwee asked what changes we are making as a result of this order. Effectively, the changes that we are making in relation to that area are that, in the past, it was for inbound flights. The information on people coming into the UK had to be submitted in advance, cleared and checked against the no-fly list. We are now saying that, where inbound journeys are taking place through certain ports or rail terminals and where UK citizens are travelling abroad for obvious reasons—for instance, if there are flights from London to Istanbul or via Barcelona with an end point in Istanbul—that would raise certain questions. Therefore, we are now asking for that additional information to be provided.
Baroness Smith of Basildon
I asked whether there was one consultation on all the statutory instruments grouped together, or one consultation on each statutory instrument.
Lord Bates
There was one consultation on all the statutory instruments together. If that is not correct in some way, I will set that out in writing.
The intention is to work with carriers, not to fine them £50,000. The UK Border Force already works with carriers, and this will continue. Fifty thousand pounds is for the worst-case breaches. Of course, carrying somebody who we consider to be a sufficient threat to be on a no-fly list is not only a foolish thing to do but a very dangerous thing to do, not only for the airline but for the other passengers and the crew of that airline. Therefore it is right that the penalty is strong, but we hope that it will not be necessary.
I think that I have touched on most of the points raised. The noble Baroness asked about monitoring the use of the power and whether the code explains how to use the power. The code includes a section on monitoring the use of the power, which confirms that the police must consider whether there is any evidence that the power is being used on the basis of stereotyped images or inappropriate generalisations. It must review whether the records reveal any trends or patterns that give cause for concern, and, if they do, take appropriate action to address this. Monitoring records should, where possible, include age, disability, gender, race, religion and beliefs, and sexuality. It also confirms that the power is subject to review by the Independent Reviewer of Terrorism Legislation.
In what circumstances would a maximum fine be given? I have covered that already.
On engagement with NGOs, we undertook a six-week public consultation to raise awareness of the consultation. We notified key stakeholders, including law enforcement, community and regulatory organisations, that consultation had begun, and invited their views. The code focuses on disrupting travel for terrorist-related purposes and on wider safeguarding children issues that are routinely considered by the police.
My noble friend Lady Humphreys asked whether civil liberties organisations in particular had been consulted. I think that the answer is that the stakeholders that we consult include civil liberties organisations; I would expect that to be the case. If that is not the correct answer, of course I will write to her.
With the answers that I have given thus far and the assurances that I have given on continuing the dialogue, particularly in relation to children, I commend the statutory instrument to the House.
Authority to Carry Scheme (Civil Penalties) Regulations 2015
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Lord Bates
That the draft regulations laid before the House on 2 March be approved.
Relevant document: 25th Report from the Joint Committee on Statutory Instruments.
Passenger, Crew and Service Information (Civil Penalties) Regulations 2015
Lord Bates Excerpts(9 years, 1 month ago)
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Lord Bates
That the draft regulations laid before the House on 2 March be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments.
Aviation Security Act 1982 (Civil Penalties) Regulations 2015
Lord Bates Excerpts(9 years, 1 month ago)
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Lord Bates
That the draft regulations laid before the House on 2 March be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments
Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015
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Lord Bates
That the draft order laid before the House on 27 February be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments.
Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015
Lord Bates Excerpts(9 years, 1 month ago)
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Lord Bates
That the draft regulations laid before the House on 12 February be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments.
Civil Procedure (Amendment) Rules 2015
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Lord Bates
That the rules laid before the House on 27 February be approved.
Relevant document: 26th Report from the Joint Committee on Statutory Instruments (Special attention drawn to the instrument).
European Public Prosecutor’s Office (EUC Report)
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The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I join others in paying tribute to the work of the wider EU committees under the chairmanship of the noble Lord, Lord Boswell, and, specifically in this context, to the work of the Sub-Committee on Justice, Institutions and Consumer Protection under the chairmanship of the noble Baroness, Lady Corston.
The report is very thorough and comprehensive, and the body of evidence that it drew upon in arriving at its conclusions was substantial. Anyone who has had anything to do with EU institutions will recognise the high regard that is held throughout the European Union member states for the work of this House in carrying out scrutiny of proposals. It is therefore doubly disappointing that the concerns, which were clearly expressed in the reasoned opinion, were not taken more seriously. The yellow card system could perhaps have worked a little better in that regard. However, the Government have very much welcomed the report. The Home Secretary gave evidence to it, and we have responded to the committee and to its specific recommendations. I now want to cover some of the principal points raised during the debate.
The Government have consistently made it clear that we will not participate in an EPPO, and we have assurances from the Commission and all member states that our non-participation will be respected. We continue to take an active role in negotiations to ensure that it is, and those negotiations are ongoing. I was amazed to see that the idea of an EPPO had its genesis back in 2000 or 2001, so it has been going on for some 14 years. I do not understand why, in the words of the noble and learned Lord, Lord Hope, people are not looking at the existing structure and making what we have work better rather than seeking to develop something that is new, untried and untested. That logic escapes the Government, as it has escaped the committee.
The negotiations are contentious and extremely fluid. The focus to date has been on Chapters I to V of the proposal. Participating member states regard these as internal business matters that concern only them. In their view, it is too early to have discussions about impacts on non-participating member states. The Latvian presidency is aiming to reach a partial general approach at the June Justice and Home Affairs Council, which it hopes will firm up the basic structure of the EPPO. Yet member states still have divergent positions on many of these issues.
There are other factors in play, many of which have been mentioned today. Under negotiation are separate EU measures, such as the directive in the fight against fraud to the Union’s financial interests by means of criminal law, known as the PIF directive, as well as the Eurojust regulation. The PIF directive in particular will affect how an EPPO would deal with cases on a day-to-day basis. It is therefore extremely difficult for us to know what effect an EPPO will have on existing EU co-operation mechanisms and systems. It is also still too early for the presidency and other member states to consider how an EPPO will impact on the UK. We totally accept that, as stated by the noble Baroness, Lady O’Loan, there will be very serious implications for the UK, including Scotland, and these will need to be addressed and assessed. However, there will be a continuing need to engage closely in the negotiations, and where we deem that so-called internal issues directly affect the UK we will continue to strongly raise our concerns. We also continue to make it clear that we want to strengthen the existing—
Lord Spicer (Con)
The Minister says that there could be serious effects on the UK. Is one of those effects that we could have to go across to a different form of law?
Lord Bates
I do not think that is the particular effect that I was thinking about in this context. Clearly we have a system that works to a degree at the moment with Eurojust and OLAF as the two bodies that then refer back, in our case, to the Serious Fraud Office and the newly established National Crime Agency, which is doing very good work in tackling fraud of this nature. They are then prosecuted through a court in the UK. It is more that operational level which the Government are thinking about at this time.
Lord Hope of Craighead
I am grateful to the Minister for allowing me to intervene. The point that really gives rise to concerns for the Lord Advocate is confusion about competence and jurisdiction. At the moment we have complete clarity as to which body is entitled to prosecute in our courts. They have a complete understanding, rights of audience, and so on. Introducing this outside body would give rise to differentials and demarcations. That in itself would give rise to disputes and we would have a sort of preliminary session as to whether one body or the other should prosecute, which gives rise to delay. So it is not really a matter of resources so much as a matter of confusion, which is why the call for further detail is really so important and why I still support the line that the Government are taking.
Lord Bates
That very clearly makes the point that we are talking about, and perhaps explains why it has been impossible to find a way forward so far. I would also mention some of the challenges, which may be insurmountable, in trying to progress down this model. The Government are absolutely committed carefully to watching the negotiations and ensuring that our interests are defended.
The noble and learned Lord also asked about shared competence. Ideally member states would retain competence. It is the only way in which they could contain the elements of the Commission’s proposal that they favour. An independent prosecutor would investigate cases inside member states free of bribery and corruption. We believe that that would be the only way in which the EPPO would add any value to the fight against EU fraud. The UK would prefer the EPPO to have as little competence as possible.
In response to a number of questions raised particularly by the noble Baroness, Lady Corston, in her introduction, it is worth putting on the record and restating the fact that the UK Government are absolutely committed to the fight against fraud. We certainly cannot envisage any circumstances in which it would be tolerated that the UK could become a safe haven for fraud. We are expressing confidence in our own legal systems and existing cross-border co-operation to ensure that that does not become the case.
Lord Pearson of Rannoch
While he is on that subject, can the Minister give noble Lords any estimate of the annual amount of EU fraud across the European Union? Do we have a modern figure for that?
Lord Bates
A figure has been mentioned. I am trying to put my hand on it. I wonder whether the noble Lord would accept the Commission’s estimate of the level of fraud. Those of us who are participating in this debate are still trying to recover and see whether we are on the right track when praised by the noble Lord, Lord Pearson, on European matters. It slightly shook our confidence, but we are recovering from that, and I think we are all on the same page here.
The Commission’s estimate of the level of fraud in July 2013 in the impact assessment put EU fraud at not detectable, and therefore unknown, at around £2.55 billion a year. I am reading out this figure and am aware that it is slightly contradictory to say, “not detectable, and therefore unknown”, when the estimate is around £2.55 billion a year. But that is the Commission’s estimate.
Baroness Corston
Can I point out to the Minister that evidence given to the EU Justice, Institutions and Consumer Protection Sub-Committee before this inquiry was that the dimension of fraud against the European Union budget was probably about €5 billion a year?
Lord Bates
Yes. They are extraordinarily large and very worrying sums of money, and this Government remain absolutely committed to tackling that. We continue to support efforts by the EU anti-fraud office to tackle EU fraud, we value the role of OLAF and Eurojust, and we want to minimise disruption to current and future anti-fraud cases if an EPPO is created.
We understand that the EPPO-to-Eurojust relationship and the EPPO’s impact on OLAF will not be discussed until later in the negotiations. We also have no further information from the Commission on any plan for reform of OLAF. I appreciate that this lack of clarity makes assessment of the impact of an EPPO difficult at this stage. The Luxembourg presidency may be in a position in the latter half of this year to begin constructive discussions on EPPO interactions with other EU bodies, third countries and non-participating member states, but that is highly likely to depend on where things stand in June. As soon as there are significant developments, we will update noble Lords in the normal way.
Lord Spicer
We always used to be told that European criminal law would not incurse itself into our law, which is a different form of law. This is surely an example of the reverse; this is the incursion of European criminal law into our common law-based system. It is very serious from the point of view of this country, surely.
Lord Bates
These are important constitutional matters. I am looking across to the Benches where we have a distinguished constitutional academic and a distinguished former member of the Supreme Court, who may offer opinion, but I think I will slightly side-step the question.
Help is at hand.
Baroness O'Loan
My Lords, the proposal is that prosecutions will occur in British courts under British law. This is not a proposal that European law will be exercised in British courts, so the reservations of the noble Lord are not warranted.
Lord Pearson of Rannoch
I am not quite sure whether the Minister was attempting to answer the question that I put to him, but just to be sure I will repeat it. What happens if the Commission decides to plough on with this proposal? Are we capable of stopping it or must we just live with the muddle, the increase in fraud and the damage that will ensue, thanks to the Commission’s activities?
Lord Bates
If the Commission continues down that line, there will have to be treaty changes. Negotiations will have to take place on the implications for non-member states and third-party countries as well as for member states. However, the proposal is in such flux at the moment that trying to judge what it is is nigh on impossible at present, let alone what a future Government’s position would be in responding to it. The fact is that we would have a position, there would be a negotiation and there would have to be agreement as to how it would operate in this country. The report, which has been presented so ably today, has highlighted the many complex issues that will need to be addressed by a future Government.