Oral Answers to Questions
Dominic Raab Excerpts(10 years, 10 months ago)
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Mr Dominic Raab (Esher and Walton) (Con)
T1. If she will make a statement on her departmental responsibilities.
The Secretary of State for the Home Department (Mrs Theresa May)
Last Friday, we witnessed an attempted act of terror designed to divide our community. The motivations behind the explosion outside a mosque in Tipton as people gathered for Friday afternoon prayers are not yet known, but the intention was clear, and the potential for injury and loss of life was obvious. West Midlands police are investigating the incident, and are treating it as an act of terrorism. I do not wish to say anything further that may prejudice their investigation, but as I have made clear previously, this country will not be divided by terrorism. We stand united as a Government, as a Parliament, and as a nation in our opposition to these cowardly acts.
Mrs May
My hon. Friend raises an interesting matter, and our response to this atrocious crime constantly evolves as the threats change. That includes understanding where the organised crime groups are operating and where vulnerable people are being exploited. UK law enforcement agencies are working closely with their counterparts in priority source countries, through joint investigation teams, supporting prosecutions in other jurisdictions, and providing training to judges, and I am happy to tell him that in each of the countries that he has specifically mentioned there has been cross-border work with law enforcement agencies and others.
2014 JHA Opt-out Decision
Dominic Raab Excerpts(10 years, 10 months ago)
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Mr Dominic Raab (Esher and Walton) (Con)
It is a great pleasure to follow my hon. Friend the Member for Hertsmere (Mr Clappison), who placed this debate in its wider and proper context.
Let me say at the outset that I welcome the enormous amount of work done by Ministers across Whitehall. I believe that it is right that we exercise the block opt-out and then assess the UK law enforcement value of any individual measure very carefully. We need the scrutiny of our Select Committees on the detail, so I welcome deferral of the consideration of that second limb of the process until the autumn. I also welcome the Justice Secretary’s acceptance of the Select Committees’ amendment.
I note the parameters of the opt-out under the Lisbon treaty. The shadow Home Secretary, who is back in her place, cast doubt on our right to opt out and then opt back in selectively. She says that we need to ask for permission that could be refused, or that we could be fined for exercising the right. Labour’s amendment is based on those contentions. I have to say that I am confused, because on 16 October 2007, the then Foreign Secretary, the former right hon. Member for South Shields, told the European Scrutiny Committee:
“it is quite open for any government to opt out of all of those measures and then as they are transposed we have the right to opt back in…if we consider that the new framing of the measure is appropriate”.
He was not talking about a right to request or something that was up for negotiation, but a clear, cast-iron right to opt back in on a selective basis.
That was followed up on 29 January 2008, when my hon. Friend the Member for Hertsmere, assiduous as ever, asked the then Home Secretary, the former right hon. Member for Redditch, whether the UK might be fined for selectively opting back in. Labour’s last Home Secretary told this House:
“The process is spelled out reasonably clearly, but I do not intend to go through it in detail now. It is straightforward and safeguards the UK’s ability to opt in. I take exception to the hon. Gentleman’s suggestion that there are penalties for not opting in. That is not the case.”
She also said:
“The deal…represents a huge negotiating success.—[Official Report, 29 January 2008; Vol. 471, c. 178-183.]
In casting doubt on our rights now, the shadow Home Secretary is rubbishing the deal negotiated and lauded by the previous Labour Government. If she is right, either they misled the House then or the EU is demonstrating bad faith now. Which is it?
Chris Bryant
I am sure that the hon. Gentleman would not want to suggest that anybody has misled the House. I am afraid that he is getting all his opt-ins and opt-outs mixed up. It is very clear what the process is in article 10 of protocol 36:
“The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision…The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences”.
Mr Raab
I thank the hon. Gentleman. All I am doing is quoting back to the House, and to him, the assurances given by Labour Ministers about the practical operation of the exercise of block opting out and then selectively opting back in. I have many more quotes that I can read out if he likes.
The basic point is that, given the way in which Labour Members are now rubbishing the exercise of the opt-out, there has either been some misleading or misunderstanding in the way that they presented it to the House back in 2007 and 2008 or, by implication, the EU is demonstrating bad faith now. Which is it? I would be happy to take another intervention from the hon. Gentleman.
Mr Clappison
May I confirm to my hon. Friend that he is entirely right in his observations? Of course this opt-out was negotiated by the previous Labour Government. I can also confirm that the Ministers and Secretaries of State who appeared before the European Scrutiny Committee did not have fits of uncharacteristic modesty when talking about the opt-out.
Mr Raab
I thank my hon. Friend. I have already quoted him and cited the important probing that he did back in those days.
Labour Members have a choice: either they misled and exaggerated the nature of the opt-out they negotiated or the Commission and the EU are demonstrating bad faith now. This Government, this House and the British public will reward neither of those basic binary options.
The Opposition’s other line of attack is to say that the Government’s intention of junking at least 100 measures is trivial because they are meaningless or obsolete. That prompts the question of why the shadow Home Secretary’s party signed up to them in such an unblinking and unthinking manner in the first place. It demonstrates that Labour Members are the dogmatists, whereas we mean to scrutinise this stuff far more carefully and substantively, measure by measure.
The motion gives the House's endorsement to the block opt-out, but it defers any opt-ins pending consultation, parliamentary debate and approval. As we have heard, a major downside of opting back into any measure is the creeping authority of the Commission and the Luxembourg Court. I think it is acknowledged across the board, certainly by Conservative Members, that whatever we do about the opt-ins, that is a serious defect in our current relationship. I believe that the British Supreme Court should have the last word on British criminal justice matters, for example, on the extradition of a UK citizen or on policing operations. I do not understand why, having created the Supreme Court amid huge fanfare, Labour Members now want to give away jurisdiction and, in effect, emasculate the word “Supreme” in its name.
One need only look at the recent ruling by the European Court on Human Rights in Strasbourg on life prison terms, the ruling on Abu Qatada, or the ongoing saga of prisoner voting, to see what happens when we submit to European judicial jurisdiction, albeit one in Strasbourg rather than Luxembourg. If anyone thinks that the Strasbourg Court is activist, they should look at the record of the Luxembourg Court, particularly in the emerging area of justice and home affairs in cases such as the Metock and Pupino judgments. I recognise that opting back into measures without accepting the jurisdiction of the Commission and Luxembourg Court is technically not within the terms of this decision process. However, have Ministers raised this now as part of the Prime Minister’s wider commitment to renegotiate Britain's relationship with the EU? Has this marker been laid down for the future? That is a vital issue.
There are plenty of other precedents and models for a more flexible relationship on justice and home affairs. Britain is not formally a party to Frontex, the EU’s external border agency, because we want to keep our national border controls, but we co-operate on risk analysis and joint operations. Does this hurt our influence or operations? No, not a bit of it. Frontex executive director Ilkka Laitinen says:
“we do not see any difference between our UK colleagues and the others”.
Outside Europe, the Strategic Alliance Cyber Crime Working Group comprising Britain, the US, Canada, New Zealand and Australia—some of our closest partners—collaborates on cyber-crime and intelligence under a non-binding framework. It is regarded as the gold standard of operational co-operation. In terms of law enforcement co-operation at the operational level, Brussels is the odd one out in insisting that we sacrifice democratic control, bit by bit, as the price of operational co-operation. To what extent have Ministers explored these wider options for renegotiating our justice and home affairs relations with Brussels? I say that partly because it is a vital policy issue at stake but also because, at home and abroad, the crime and policing opt-out will be seen as a litmus test for Britain’s wider strategy of renegotiation. It is important for the credibility of that strategy that what we achieve on the crime and policing opt-out is understood as a point of departure, not the point of arrival.
Let me be clear about the positive alternative for our engagement with our EU partners on justice and home affairs. This is not all about knocking the European Union for ideological or dogmatic reasons. I see huge value in robust law enforcement co-operation at the operational level within Europe. The more flexible the EU can be on the structure of the legal form, the better operational friend they will find us in practice. Of course we want to exchange criminal records information, but we do not want the personal data of innocent British citizens washing around Europe, particularly with Governments—let us be honest about this—whom we would not trust to safeguard it. I have to say that I am not sure about trusting our own Government and Whitehall with lots of our personal data. If we do not trust Whitehall, what hope is there when it gets shipped off to Warsaw, Sofia and places like that?
Yes, we should engage in joint police operations, but there is no reason—none at all—for us to allow the initiation or oversight of such co-operation to be determined by EU authorities. There are also wider efforts to harmonise criminal law, which are wholly unnecessary and, to be frank, set a pretty bad precedent. Whether the question is which drugs to ban or how to define the delicate balance between hate crime and free speech, this House is the right place to pass British criminal law.
I want to touch on three specific measures. First, on Europol, I have no hesitation in saying that British police should share information and co-operate at an operational level. I worked directly with Europol and Eurojust when I was posted to The Hague during my time at the Foreign and Commonwealth Office. I see real value in the college structure that allows smoother day-to-day co-operation between national offices. Europol is not perfect as currently configured. It has all the features of bureaucracy and waste that we expect from the EU, including—believe it or not—the €35,000 contract it signed in 2010 to send flowers to itself.
For all its flaws, Europol serves an important function. However, it is not in the UK national interest to see Europol acquire supranational powers that trump national authority over our police. I am already nervous about the existing power of Europol to initiate investigations in the UK and the increasingly limited right to refuse.
The new regulation on Europol, which we will debate later, would also require UK police forces to give foreign police open access to their files. All this would be interpreted by the European Court of Justice. Step by step, the EU is heading towards a supranational model. What is our long-term vision? Should we not be saying, clearly and unambiguously, that we will not hold back willing EU states that want to go down this route, but that it is not a model we will subscribe to over the long term? I ask again whether Ministers have laid down a future marker on that point.
Secondly, on Eurojust, a college of collaborating national prosecutors is hugely beneficial. I would rather it did not splash out €300,000 on Mercedes-Benz, as it did in 2010, or €33,000 on its end-of-year bash, as it did in 2011. Still, co-operation is important.
The Commission, however, is poised to announce a new regulation to beef up Eurojust’s supranational powers and create the European public prosecutor. The announcement is expected shortly. In fact, it appears to have been delayed and one might wonder whether the reason for that was so that it would not take place before this debate, but perhaps we would flatter ourselves too much if we believed that. In any event, I ask again whether Ministers have laid down a marker whereby, if Eurojust evolves in this way, Britain must carve out a separate, bespoke relationship.
Finally, on the European arrest warrant, few Members would deny that fast-track extradition benefits the police, although I think that some of the representations from law enforcement agencies have been rather one-sided. Even Commander Gibson of the Metropolitan police has said that
“resources are stretched dealing with the amount of EAWs we receive”,
because the regime is lop-sided. For every EAW Britain issued in 2011, we got 33 back. We receive about a third of all European arrest warrants.
A lot of non-British nationals are involved and we do not have quite the same stake or interest in the safeguards to which they are subject, but the fact of the matter is that the increasingly broad net of the EAW sweeps up far too many innocent Britons who are, to be frank, hung out to dry by the British justice system.
Michael Ellis (Northampton North) (Con)
I was a fierce critic of the European arrest warrant, but does my hon. Friend agree that the changes envisaged by the Home Secretary make it completely different from that which has gone before? For example, the changes to proportionality restrict the extradition of people for petty and minor offences and the changes to bail mean that individuals can be bailed pending proceedings. There is also a change to charging decisions, because previously people could be extradited before the foreign country had even decided whether to charge them or not. Those decisions, taken by this Government, this House and the Home Secretary, mean that the European arrest warrant as we have known it will be completely different, so it can and should have our support.
Mr Raab
My hon. Friend makes a good point. I will come back to the proposals in the Anti-social Behaviour, Crime and Policing Bill and the extent to which we need to scrutinise them. I accept that this is an important opportunity to mitigate the blunt edges of the EAW, but the fact is that, at the moment, its broad net sweeps up too many innocent British nationals such as Andrew Symeou, Deborah Dark, Michael Turner, Edmond Arapi and, in my constituency, the retired judge Colin Dines, who suffered a stroke as a result of the pressure and stress of being subject to the warrant. We hope and expect that it will be dropped, but he and his family will still be left to pick up the pieces.
Jacob Rees-Mogg
Is it not the case that if we opt back in, the European arrest warrant cannot be better in future than it is now, because at present it is not subject to the jurisdiction of the European Court of Justice or to enforcement by the European Commission, but then it will be? Therefore, whatever laws we pass in this House will not be determinative. It will be determined by the European Court of Justice.
Mr Raab
My hon. Friend makes his point, which I will come back to, in a powerful way. The issue has two distinct elements. We could get away with UK safeguards without amending the framework decision, but would they then be whittled away by the Luxembourg Court? My hon. Friend is right to raise that point.
I have mentioned a series of cases, all of which are appalling miscarriages of justice. The point I want to make—this is difficult for our coalition partners, who feel strongly about civil liberties and have strongly supported extradition reform when I have raised it in this House—is that if people are concerned about extradition and blunt extradition under our arrangements with the US, they cannot turn a blind eye to what has been happening under the European arrest warrant, because this is not about the odd case but systemic. Britain’s senior extradition judge, Lord Justice Thomas, stated publicly in his evidence to the Baker review—this has already been alluded to—that the EAW system has become “unworkable” and that unfairness is a “huge problem”.
This is not about a piffling, odd case here or there, or the trivial cases that get cited and bandied around left, right and centre; it is about serious cases such as that of Symeou, who was, in effect, wanted for killing someone, and Colin Dines, who was wanted for a very serious fraud. We all accept that those are extraditable crimes—that is not the issue. The question is whether we trust the investigating prosecuting authorities and courts in some of these other countries and whether we turn a blind eye to some of the appalling prison conditions.
Nick de Bois (Enfield North) (Con)
My hon. Friend mentioned the case of my constituent Andrew Symeou. Is not the core of the problem that the European arrest warrant fundamentally rests on a concept of mutual recognition and mutual trust that all systems are the same and have equal fairness and human rights? Only last week at the Organisation for Security and Co-operation in Europe conference, Hungary, a member of the European Union, was condemned by parliamentary delegates for wrong practices, which surely cannot allow mutual trust to continue.
Mr Raab
My hon. Friend is spot on. In fact, Lord Justice Thomas has said that the EAW
“presupposes a kind of mutual confidence and common standards that actually don’t exist.”
None the less, for all the flaws in the EAW—I recognise its law enforcement benefits as well—I do not take a particularly dogmatic approach to it. The optimum solution would be not to ditch the EAW altogether, but for Britain, having exercised the block opt-out, to press for safeguards as a condition of opting back in. The problem with that, however, is that I understand that the Government regard renegotiation of the framework decision as unfeasible within Europe because there is no majority to support it. Incidentally, that blows a hole in the Liberal Democrats’ stance of saying that we can achieve safeguards through negotiation if we opt back in straight away. That is naive: we would lose all our leverage. I will come back shortly to what I think is the way forward.
The other cheerleaders for the EAW seem to point to the Hussain Osman and Jeremy Forrest cases, but we should not need extradition to get British fugitives back from Europe—a point fundamentally missed too often in this debate. Those kinds of people, particularly British nationals—whether they be in Spain or whether they are Jeremy Forrest, Hussain Osman or any of the other names that are bandied around—should be deported, not extradited, straight back home without fuss or fanfare. The point is that, far from being the cure, EU law in the form of the 2004 citizenship directive, which Labour blindly and irresponsibly agreed to, has whittled away the power to deport nationals back home, which is another clear area where Britain should seek repatriation of power. If we had stronger national powers of deportation, we would not have had to become so reliant on this blunt EU extradition regime.
Another argument is that extradition under the old Council of Europe conventions would be slower. That is true, but it does not mean that any fugitives would go free. Their return might end up being delayed for a bit, and I can see that that would be annoying for the police. But, in the absence of adequate reform of the EAW, the slightly slower surrender of crooks in return for protecting the innocent is not the worst situation we could be in, at least for a limited period during which we negotiated more balanced extradition treaties, either bilaterally or, as my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) said, multilaterally with the EU, which now has a distinct legal personality. All the Opposition’s scaremongering about diluting public protection if we tinker with or seek to reform the European arrest warrant is nonsense.
The Government have tabled proposals to introduce safeguards into UK law to prevent further miscarriages of justice under the European arrest warrant. I welcome those proposals. There will be certain questions to consider in this context. Can we go far enough in taking off the rough edges of the warrant without falling foul of the framework decision, particularly given the fact that the Luxembourg Court will have the final word in interpreting these cases? I urge the Joint Committee on Human Rights, as well as the other Select Committees, to look into this matter. It has already produced a report on extradition in which it looked at the adequacy of the European arrest warrant, and it would be well placed to give a discreet analysis of this issue within the available timeframe. I shall withhold my final judgment on what we should do about the European arrest warrant until then.
Even with adequate safeguards, our opting back into the EAW would give the Luxembourg Court jurisdiction over the fate of British nationals. I would be interested to know whether Ministers have laid down a marker about our wider justice and home affairs relationship and specifically about the future role of the Luxembourg Court. I am talking here about the wider renegotiation of the justice and home affairs relationship. I appreciate that that is not technically within the terms of the block opt-out, but I believe that this is an opportune moment at which to lay down such a marker. Doing so would give many Conservative Members reassurance.
I can support the motion because I support the block opt-out, and I look forward to debating all the individual measures. The critical issue for me at this juncture is to receive assurance that the message has been delivered to Brussels, loud and clear, that this crime and policing opt-out process is just the appetiser, before we begin the wider renegotiation and repatriation process that Britain wants and needs.
Proposed Europol Regulation
Dominic Raab Excerpts(10 years, 10 months ago)
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James Brokenshire
My hon. Friend makes an important point. Discussions have already taken place and member states have voiced concerns. Our certainty faces a challenge because, as I will come on to say, there is an element of risk with regard to what will happen, given that there is qualified majority voting and the European Parliament can make a co-decision. Given the significance of the issues, it is right that we wait to see what the final measure looks like before deciding whether to opt in. I think that that is the right approach, which is why we tabled the motion. However, as I told the Chair of the Home Affairs Committee, that does not mean that we will not engage in active discussions with member states, the Commission and others in order to seek to influence this measure as it is negotiated.
I have discussed the proposal personally with senior law enforcement officials from across the UK. Like us, the law enforcement community supports Europol as it is now, but the senior officers I spoke to agreed that our issues with the new text are real and serious.
On the Opposition’s amendment, the Government agree entirely that it is right to consult chief constables and law enforcement partners as part of this process. We have consulted senior law enforcement officers from across the UK, including the Metropolitan police and policing partners from Scotland and Northern Ireland. However, I ask the House to reject the amendment, because ultimately this is a decision for Parliament and the amendment does not contemplate Parliament coming to a view on whether we should opt in post-adoption.
Some hon. Members may argue tonight that we should opt into this proposal and negotiate out the elements that cause us concern. The problem with that is that the proposal is subject to qualified majority voting and we cannot guarantee that we would get the changes we need. We could quite easily be outvoted in Council, and then we would be bound by the final text, even if it contained elements we could not accept.
The Government are not prepared to take risks on something as important as this, which goes to the very heart of our law enforcement. We therefore intend not to opt in at this stage, but to remain fully engaged in negotiations and work with other member states and the European Parliament to push for the changes we need.
We know that member states and the EU institutions value our experience in this area. We have already had indications that others recognise our concerns and are prepared to work with us to try to find a solution.
We do not expect the regulation to be agreed much before the end of 2015. When it is agreed, we will consult Parliament on it again, depositing the final text with an explanatory memorandum, and, as this House knows from the handling of the human trafficking directive, we will be able to hold another debate at that time.
I stress that the Government’s position has no immediate implications for our participation in Europol. As I have said, we believe it is in our national interest to seek to rejoin the existing Europol legal instrument as part of the 2014 decision process. By doing so we will retain our full membership of the organisation throughout the negotiations, so nothing will change for the foreseeable future.
Mr Dominic Raab (Esher and Walton) (Con)
The Minister is setting out cogently the scrutiny being exercised by the Government and the pros and cons. If we cannot remove the supranational whistles and bells, what contingency planning or negotiations are in place so that, if we do not opt back in, we can still retain operational co-operation, which, whatever anyone’s views from an ideological standpoint, most people would regard as important?
James Brokenshire
I heard my hon. Friend speak in the preceding debate about the importance of continuing operational co-operation. Members from all parties recognise the transnational nature of crime and the subsequent operational need for law enforcement divisions from all European member states to be able to collaborate and co-operate in order to fight it. We certainly believe that, because of the way in which Europol can bring a number of member states together in one space, it is the most effective way to proceed, provided that the appropriate safeguards are met when the measure is finally concluded and negotiated, and that they reflect the concerns that my hon. Friend raised in the previous debate about extensions into supranational competency. The Home Secretary also made clear in the previous debate her views on a European police force.
Subject to those safeguards being introduced, we believe that a reformed Europol measure is the optimum way forward, but it is clearly open to us to negotiate individual operational relationships with other member states. However, in our judgment, the nature of Europol and the intelligence work that it conducts in support of member states’ law enforcement agencies mean that our emphasis will be on seeking to influence the measure and to be in a position to opt into it following its adoption, provided that the appropriate safeguards are achieved. Again, that will be subject to further parliamentary scrutiny, and to the potential for a further debate in this House, to assess and analyse the provisions and to ensure that the appropriate safeguards are provided.
We wish to remain part of Europol, and will do so provided we get the amendments that we need, but we cannot support it at any price. We will not put our sovereignty and security at risk by committing ourselves in advance to a proposal that, as drafted, poses significant risks to both. The Government’s approach shows that we are serious about international police co-operation and about protecting the autonomy of our law enforcement agencies. I urge the House to support the motion tonight.
Treaty on the Functioning of the EU
Dominic Raab Excerpts(10 years, 10 months ago)
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Mrs May
The hon. Gentleman and the hon. Member for Birmingham, Selly Oak (Steve McCabe) seem to be suggesting that we are putting conditions on to our opting back into the European arrest warrant. We will request that we can negotiate to opt into a number of measures, including the European arrest warrant. We can make the changes that we are making to the European arrest warrant in UK law, and that could have been done by the previous Labour Government had they chosen to do so.
Mr Dominic Raab (Esher and Walton) (Con)
This is a major strategic decision for Britain, and a lot of hard work has gone into it, which is very welcome. However, expecting Parliament to vote on it next week is unrealistic for hon. Members and Committees, given the need to look not only at individual measures such as the very important EAW safeguards that she proposes but at the package as a whole. May I urge her to allow consultation over the summer and to have Parliament debate and vote on it when we return in the autumn?
Mrs May
I recognise my hon. Friend’s interest in this issue and his expertise on these matters. It is right for us to be able to take a decision such that we can start the more formal negotiations with the European Commission and with other member states. I believe that it is in our interests to be able to rejoin a number of measures, and starting the negotiations now will enhance our ability to do so.
Commission on Security and Cooperation in Europe
Dominic Raab Excerpts(10 years, 10 months ago)
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Mr Raab
To ask the Secretary of State for the Home Department if any of the 60 individuals named on the list published by the Commission on Security and Co-operation in Europe, individuals involved in the tax fraud against Hermitage and the torture and death of Sergei Magnitsky, published in June 2012 have visited the UK in the last year; and if she will disclose the details of any such visits.
[Official Report, 18 April 2013, Vol. 561, c. 499W.]
Letter of correction from Mark Harper:
An error has been identified in the written answer given to the hon. Member for Esher and Walton (Mr Raab) on 18 April 2013.
The full answer given was as follows:
Mr Harper
It is long-standing policy not to disclose details of records which may be held in relation to arrivals in the United Kingdom. The Home Office Special Cases Directorate is already aware of the individuals on the list and has taken the necessary measures to prevent them being issued visas for travel to the UK.
The correct answer should have been:
Abu Qatada (Deportation)
Dominic Raab Excerpts(10 years, 10 months ago)
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Mrs May
I understand my hon. Friend’s point. We will, of course, need to look at those issues when we come to frame the legislation so that we can be clear as a Parliament about exactly the sort of circumstances we are looking at. However, I am sure that my hon. Friend will appreciate that there may be some circumstances in which it will not be possible to deport somebody, although we want to ensure that we can deport foreign-national prisoners as far as possible. We will set out, as we have already tried to in the immigration rules, the circumstances in which we expect that a foreign-national prisoner will not be allowed to remain in the UK on the basis of article 8 but will be deported.
Mr Dominic Raab (Esher and Walton) (Con)
I congratulate the Home Secretary and welcome Abu Qatada’s removal, but I share her fears about the implications of the case. What estimate has the Home Office made of the number of extra successful deportation challenges that it expects per year as a result of Strasbourg’s novel—and, frankly, dangerous—ruling?
Mrs May
I am not able to give my hon. Friend an answer about the number, but I can say, having looked at a sample of cases, that this case was unusual in that it related to the potential torture of people other than the individual whom we were trying to deport. That is why it was such an unusual and unprecedented judgment from the Strasbourg court; it is also why the case is not likely to be replicated on many occasions.
EU Police, Justice and Home Affairs
Dominic Raab Excerpts(10 years, 11 months ago)
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Yvette Cooper
The hon. Gentleman has made an important point. When the European Union Committee in the House of Lords was considering precisely these issues, and discussing cases in which there had been allegations of injustice, it commented:
“these arose from the consequences of extradition, including long periods of pre-trial detention in poor prison conditions, which could occur under any alternative system of extradition. Relying upon alternative extradition arrangements is highly unlikely to address the criticisms directed at the EAW and would inevitably render the extradition process more protracted and cumbersome, potentially undermining public safety.”
Yvette Cooper
I will give way to the hon. Gentleman, but I must make a bit of progress first.
We have been struggling to find out what the Government are actually doing, and what their position actually is on these important measures. Today’s edition of The Guardian gave us some clues. It states that the Prime Minister is expected to opt into 30 to 40 measures, that a deal is being done by the Chief Secretary to the Treasury and the Minister for Government Policy, the right hon. Member for West Dorset (Mr Letwin), who sits in the Cabinet Office, and that
“the Tories want to opt back in to no more than 29”
so that they can say that they opted out of 100.
“The Lib Dems, who had been pressing for… 70…recently settled on a figure of about 45.
Ministers are planning to split the difference between 45 and 29, meaning the coalition will sign up to about 35 of the measures.”
This, it appears, is a numbers game. It is no way to decide on serious issues that affect the fight against crime and future justice for victims. However, we think it excellent that the Government have handed over negotiations to the right hon. Member for West Dorset. We recall that the last time the Prime Minister tried that, in relation to Leveson, the Cabinet Office Minister came over to our place and allowed us to draft the policy. We are quite happy to do that again if the Government cannot sort it out.
Yvette Cooper
I agree with the hon. Gentleman. Some aspects of the warrant should be improved and reformed and there are other areas of European co-operation that we should seek to improve. For example, we should ensure that the European arrest warrant is not used for too many minor crimes. We should also work with other European countries to ensure that when people become victims or suspects of crime abroad, they can be assured of proper legal support and justice. But it is still better to stay in and argue for reform than to pull out of the European arrest warrant when it is so important to our police and to victims.
The Prime Minister has said in the past that the European arrest warrant is highly objectionable, yet the Association of Chief Police Officers has said that opting out of it means
“higher costs, more offenders evading justice and increased risk to public safety.”
What is the Home Secretary’s view? Are we in or out of the arrest warrant? In or out? In the last year alone, Britain sent 900 people back to other countries under an arrest warrant, 95% of whom were foreign nationals. The Home Secretary makes great play of complaining that she cannot send back enough foreign criminals, but now she wants to make it harder to send back people suspected of serious crimes abroad—why?
The European arrest warrant—in or out? The prisoner transfer framework—in or out? That is the one that means we can transfer prisoners back to their home country without their consent. What about the Home Secretary’s position on joint investigation teams, which have helped to stop a human trafficking ring bringing young Czech women into Britain for prostitution and rape. Thirty-three victims were found and nine people were convicted as a result of a joint investigation team. A similar operation undertaken with the Romanian police stopped a gang trafficking children into the UK and meant that victims were protected. So joint investigation teams—in or out? What about sharing criminal records? The UK has received more than 500 notifications of British citizens convicted in other EU member states who need to go on the sex offenders register here at home. I am happy to give way to the Home Secretary if she will stand up and tell us whether she supports the sharing of information about sexual offences so that people can be put on the sex offenders register here. Yes or no? In or out? [Interruption.] Again we have silence from the Home Secretary, who cannot tell us, whether it be on sharing criminal records or on the European arrest warrant, what the Government’s position is on these vital measures.
Mr Raab
The Opposition motion refers to eight specific measures out of the 135 or so, so I just want to clarify the Labour party’s position: is it advocating the exercise of the block opt-out and then selectively opting back in, or is it saying that there should be no exercise of the block opt-out at all?
Yvette Cooper
The Home Secretary has not yet told us whether she actually has a workable way to do that, and we wait to see whether she has a workable way to deliver that at all. She has said that she wants a blanket opt-out, but most of her Back Benchers want to opt out of the lot and not opt back into anything. Our clear view is that we should not have a blanket opt-out that puts at risk the European arrest warrant and the crucial things needed for the fight against crime.
On criminal records, is the Home Secretary in or out? Again we have no answer from her. Sharing alerts on suspected criminals, or trafficking or kidnapping victims, crossing borders—in or out? Minimum standards for tackling online child exploitation—in or out? Information sharing on football hooligans—in or out? Co-operating on seizing criminals’ assets—in or out? Taking account of foreign convictions in court cases—in or out? Working with other countries on dealing with international genocide and war crimes—in or out?
Mr Raab
It may help the Home Secretary to know that in its submission to the House of Lords European Union Committee, ACPO reckoned that only 13 of the 135 measures were vital for law enforcement. Is she aware of that and does it not cast a shadow on the spurious law enforcement claims of the Opposition?
Mr Dominic Raab (Esher and Walton) (Con)
I welcome the Home Secretary’s speech and the broad strategic approach that she outlined. For my part, I want Britain to be a strong operational partner in Europe, but I do not believe that we need to give up democratic control over such a vital policy area to achieve that. We should consider all measures against the criteria of the UK’s national interest.
Few would object to European-wide criminal record checks to protect the public, but signing up for pan-European data sharing on every ordinary citizen is Orwellian and dangerous. As the UK’s surveillance of its people has expanded, data sharing with EU Governments has exposed the innocent to far greater risk. The classic case is that of Peter Hamkin, a Liverpool bartender wrongly arrested in 2003 for murdering an Italian woman because of a botched DNA match. He never set foot in Italy. New EU regulations risk a flood of such cases. Brussels wants foreign police to have access to the details of 38 million motorists on the UK Driver and Vehicle Licensing Agency database, as well as DNA and fingerprint records. Even the Commission concedes in its impact assessment that systemic flaws could lead to false matches sucking the innocent into foreign investigations. Everyone has been so sensitive about this, but the raw truth is that I do not trust the criminal justice systems or safeguards in many EU countries; I am thinking particularly of some of those on the periphery of the EU, but also some of the long-standing members.
According to the Association of Chief Police Officers, only 29 of the 135 EU measures that are subject to the block opt-out benefit UK law enforcement at all, and of those only 13 are vital. Far from enhancing law enforcement, the vast majority of measures that the previous Government signed Britain up to were utterly pointless. That is what ACPO’s evidence means. [Interruption.] It clearly does, but I will not take an intervention because of the time. We do not need to be part of efforts to harmonise national law in areas such as drugs or corruption, and certainly not in areas that cover free speech.
The EU spews out legislation, but where is the evidence that it delivers? The previous Government never had proper impact assessments or evaluations of it. Let us take one example—the six laws on corruption under the EU. Transparency International says that EU standards have barely budged over a decade. In fact, corruption got worse in 10 countries. Then there was the push on criminal justice standards, whereas Fair Trials International found that violations of pre-trial rights trebled across the EU in the past four years and unfair trials doubled. Hyperactive supranational legislation has proved a fig leaf for the lack of national institutional capacity building that really raises standards of justice for all Europe’s citizens.
I spent three years in the Foreign Office in The Hague monitoring Europol and Eurojust. I have no problem at all with a college of prosecutors or police officers engaging in practical authority-to-authority co-operation, but that is a snapshot of the present, and the question is where all this is leading. There is already a new EU regulation on Europol and one is expected on Eurojust. They are clearly envisaged by the Commission—I have the draft policy papers here—as stepping stones towards a pan-European criminal code enforced by Europol and Eurojust, backed up and interpreted by the European Court of Justice. We need to look not just at the current state of co-operation, but where this is headed.
The most controversial measure is, of course, the European arrest warrant. I understand entirely that police rely on it and I understand that it has expedited process, but Commander Gibson of the Metropolitan police has highlighted the fact that
“resources are stretched dealing with the amount of EAWs we receive”,
because the regime is utterly lopsided. The number of hon. Members who complain about the lopsided nature of US extradition, yet turn a blind eye, because of their Europhilia, to the EAW is quite remarkable, so let me give them the facts. For every EAW that Britain issued in 2011, we got 33 back. We receive a third of all European arrest warrants.
I know from many cases—that of Andrew Symeou and in my own constituency the case of Colin Dines—the extremely rough justice that perfectly innocent people have been through. Why? Because we cannot trust the justice systems in many countries. It is not just the new members. Italy and Greece have incompetent justice systems and appalling prison conditions, and we are and have been hanging our citizens out to dry for far too long. We need reform and the strongest way to press for reform is to opt out and, as a condition of opting back in, to insist on a number of basic safeguards. The proportionality test has been mentioned, and there are other safeguards.
The EAW is supposed to allow hit-and-hope warrants that involve extradition for the purposes of investigation, rather than prosecution. That happens all the time. I have proposed amendments, which Members in all parts of the House thought would be a good idea, to enact in UK law a basic safeguard to make sure that extradition under the EAW can take place only in a case that is trial-ready, for prosecution and not for investigation, yet we have never achieved that. If we want to exercise some leverage over our European partners, who get much more out of the system reciprocally than we do—I accept that there is a strong law enforcement advantage to the UK—we should use our leverage from the block opt-out to press for those reforms.
We should not take into account only what the police say. We do not live in a police state. Their view is very important, but we should also take into account the views of the most senior extradition judge in this country, Lord Justice Thomas, who told the Baker review that the EAW system has become “unworkable”, that unfairness is a “huge problem” and that there is widespread consensus among the judges in northern Europe that this is a problem, but there is obviously great sensitivity, and sensibilities, among some of the Mediterranean countries.
Beyond the individual cost-benefit analysis of these measures, we need to grasp the big picture and the long term. EU Commission President José Manuel Barroso has made it clear that he wants a pan-European criminal code, enforced by the Commission and the European Court, and an EU public prosecutor. If we want to preserve our common law system and democratic oversight in this vitally sensitive area, is now the right time to seek broader and more flexible arrangements for co-operation?
That is why this specific opt-out decision should not be divorced from the need to renegotiate Britain’s wider justice and home affairs relationship. There are plenty of precedents. We are not a full-blown member of Frontex, but its executive director has said
“we do not see any difference between our UK colleagues and the others”.
That is a good example of where we co-operate operationally but do not need to be signed up, lock, stock and barrel, with the cessation of democratic prerogatives that that involves.
The way this has been presented as some kind of life-threatening problem for UK law enforcement is incredible, when one thinks of our relationship with authorities outside Europe. The strategic alliance group, which includes Britain, the US, Canada, New Zealand and Australia, collaborates on cybercrime and intelligence under a non-binding framework. Frankly, Brussels is the odd one out in insisting on a Faustian bargain that requires us to sacrifice democratic control as the price of co-operation.
The ideologues in this debate are not those calling for a renegotiation in justice and home affairs, based on operational co-operation rather than supranational control, but the dogmatic Europhiles who would blindly sacrifice British standards of justice and democratic accountability when the law enforcement case is so utterly weak.
Chris Bryant (Rhondda) (Lab)
This has been an interesting debate, although we are absolutely none the wiser about the Government’s policy. I am delighted that the Home Secretary has come back into the Chamber; perhaps she will be able to provide us with some answers later.
Last year the Prime Minister said that he would be exercising the opt-out, then the Deputy Prime Minister disagreed, and then the Home Secretary said that the Government’s current thinking was to opt out. We have therefore tabled an Opposition motion to try to tease out the Government’s position and precisely what they intend to do, because we know that this is a matter of national security. The Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), was absolutely right when he said not long ago that we should not be naive about the process of renegotiation if we want to opt out and then opt back in. As he said, the Commission would attach conditions—for instance, it might allow us to join groups of related measures, some of which we like while others we might not.
Our view is that thus far this has been a pretty shabby process. When we tried to enable the House to debate the European arrest warrant during the progress of the Crime and Courts Bill, Government Ministers and Back Benchers talked out the debate so that we never managed to discuss the matter at all. All the relevant Committees in this House and in the House of Lords have complained that they have been given negligible information by the Government. We have been given no clarity of any kind as to what measures they might be considering opting into—not even a clear idea on their final resolution of whether they intend to opt out in general—and we had no clarity today.
We still have no clarity about what kind of votes we are going to have. The Home Secretary trumpeted the fact that last year the Europe Minister, who is in his place, charming chap that he is, said that we would have a vote in both Houses. However, he did not say whether they would be binding votes—just that they would be votes before the Government made their final decision. He did not say whether the votes would be on a list of what we are to opt into and opt out of. He did not say whether they would be on amendable motions. He did not say what would happen if one House voted one way and the other House voted the other.
The truth is that a double tug of war is going on, as we know from The Guardian today. The first is between the two sides of the Government—the Liberal Democrats and the Conservatives. It is great that the man who actually boasts of having invented the poll tax when he worked at No. 10 under Mrs Thatcher is now in charge of these negotiations as the Minister for Government Policy. The other tug of war is between Conservative Members, some of them on the ultra-right and some on the moderate right. Some might be referred to historically as the H-block—the Heaton-Harris and Hannan end of the Conservative party. It reminds me of the Old Testament—two women claim that a baby is theirs and it is only when Solomon says that the baby should be cut in half that one of them owns up. I am worried that the Government’s policy-making process means that they are simply playing a numbers game in which they spin different things to different parts of the media and the end result will be that British security will lose out.
It is all pretty sad, really, because historically the United Kingdom has led and campaigned for greater co-operation on many of these issues in the European Union. It is a simple matter of fact that ease of travel, faster telecommunications and the ability to send money from one country to another much faster mean that no country is hermetically sealed any more. Indeed, as my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) has said, criminality does not stop at the channel. When I first typed out that sentence, it said, “does not stop at the Chanel”, which is rather different.
On joint investigation teams, our advances in recent years and the increased number of such teams mean that we are able to tackle forms of criminality that we were never able to deal with before.
The Association of Chief Police Officers has been mentioned many times. I accept the point made by the hon. Member for Esher and Walton (Mr Raab) that, just because a police officer says something, that does not necessarily mean that we need to put it into law. However, ACPO has pointed out:
“The presence of fugitives from justice fleeing to the UK is a significant public safety issue.”
It stands to reason that if we make it more difficult for people to be extradited from this country by resiling from the European arrest warrant, we will, in effect, open ourselves up to the danger of being a haven for them.
Chris Bryant
I will not give way, because we have very little time left and the hon. Gentleman took up quite a large amount of time himself.
I believe that the European arrest warrant is invaluable. As my hon. Friend the Member for Hackney South and Shoreditch (Meg Hillier) has said, it is invaluable for victims apart from anything else. Without it, ACPO says that
“It is not just foreign criminals who would sit for years in UK jails. UK court cases would stall for many years as we waited to get our fugitives back, robbing their victims of the chance for justice to be served.”
Similarly, the hon. Member for Cambridge (Dr Huppert) referred to the case of Hussain Osman, who planted a bomb on 21 July 2005 which, thank God, did not go off. Within eight days he had been arrested, having gone through Paris to Rome, and by September he was back in this country, thanks to the European arrest warrant. Without it, such a process might take up to 10 years in future. That is precisely the kind of thing that we want to avoid.
We have only to look at the statistics for 2011-12. Sometimes the hon. Member for Esher and Walton—whom I respect enormously in many regards, but not in what he says about this—often suggests that this is all about British citizens being extradited, but the vast majority of people surrendered from and to the UK under the European arrest warrant are not British. In 2011-12, Government statistics show that 922 people were extradited from the UK, just 32 of whom were British nationals. They were not extradited to the kinds of countries referred to by the hon. Gentleman: eight went to Ireland, six to the Netherlands and five each to Spain and France. The flow in the other direction was similar: 17 from Ireland and the Netherlands, and 14 from Spain. Of the extraditions, 50 were for homicide, 20 for rape and 90 for robbery. The thought that we might surrender the European arrest warrant and have no sure knowledge of what would stand in its place must be of serious concern to everybody in the country.
The hon. Member for Daventry (Chris Heaton-Harris), charming though he is, was quite casual about whether there would be an alternative to the European arrest warrant, but all the work of the Lords Committee, the Bar Council and others suggests that we might have to rely on the 1957 convention, which would not solve any single one of the problems with the European arrest warrant that the hon. Member for Esher and Walton referred to. In fact, it would make many of them considerably worse, because it would lead to a longer process and people like Andrew Symeou might end up being imprisoned. Bilateral agreements, for which the hon. Member for South Northamptonshire (Andrea Leadsom) has argued—she is not present, but she leads the charge for many of the more ardent Eurosceptics—would not help either. As my hon. Friend the Member for Hyndburn (Graham Jones) said, there is a danger that we will create a new version of the costa del crime in this country.
There are measures other than the European arrest warrant that we think are vital to our national security. The Schengen information system, the second incarnation of which is not yet fully in place, will mean that every country in the EU will be able to access real-time information on anybody who is of interest to the criminal justice system of any other country at their border and elsewhere. That is an important system and it covers 23 of the measures that we are discussing.
David Anderson QC, the independent reviewer of terrorism legislation, said that SO15 considers many of the measures that we are talking about to be essential in tackling terrorism. The hon. Member for Esher and Walton mentioned one person who made his concerns about the European arrest warrant known to the Baker review. However, I point out to hon. Members who are deeply troubled by the European arrest warrant that the Baker review said clearly:
“we believe that the European arrest warrant scheme has worked reasonably well.”
Chris Bryant
I will still not give way to the hon. Gentleman because hon. Members wish to hear from the Minister.
I will end by making one further point. I know that there are many pragmatic, sensible pro-Europeans on the Government Benches. Sometimes they remind me of Nicodemus in the New Testament, who was only able to visit Jesus at night because he did not want to own up to his Jewish colleagues on the Sanhedrin about his real views. I can see some of those sensible pro-Europeans now and I am tempted to name them—to out them. Of course, there are plenty of Liberal Members who are sometimes sensible. There are also plenty of Conservatives. It is just a shame that they dare not own up to their true views.
I hope that what comes out of this process is a proper consultation with all the Select Committees and a proper list that does not come out only on the day after the end of May 2014—we know that the Home Secretary is not very good at getting her dates right. I hope that we have a proper process whereby everybody in the House can declare their commitment to the systems that work well in the national interest, and that there is an amendable motion for which all Members can vote.
Oral Answers to Questions
Dominic Raab Excerpts(10 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mrs May
I have not given any flippant response. What I said was that the Government were reviewing the issue. The Ministry of Justice has launched a consultation on cautions, and it is absolutely right that we should look not only at the numbers but at the evidence behind the way in which the cautions are being used and at the circumstances in which they are being used. That is what the review is about.
Mr Dominic Raab (Esher and Walton) (Con)
Will my right hon. Friend confirm that, while net immigration quadrupled during the first 11 years of the previous Government, it has been brought down by 72,000 in just two years under this Government, despite the fact that the Opposition have fought us every step of the way?
Mrs May
I can absolutely confirm that. I am pleased to say that net migration has gone down by more than a third since this Government came to power. That is a result of our relentless work to deal with the lack of control in the immigration system under Labour, and it is a great pity that Labour Members have not been willing to support any of the measures that we have taken to ensure that immigration can come down.
Abu Qatada
Dominic Raab Excerpts(11 years, 1 month ago)
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Mrs May
I remind the hon. Gentleman that as I said in my statement, we continue to adopt a twin-track approach. He referred to the Supreme Court. Obviously, we are seeking leave to appeal direct to the Supreme Court. If the appeal is accepted, the case will be on points of law in relation to the earlier SIAC judgment, and on only those points of law. Assuming that the treaty is ratified in both the Jordanian Parliament and this Parliament, it will enable me to make a fresh deportation decision about Abu Qatada.
Mr Dominic Raab (Esher and Walton) (Con)
As I understand it, this is the first time that a deportation order has been blocked on fair trial grounds under article 6. What assessment, if any, has the Home Office made of the number of claims likely to follow the judicial review, and will my right hon. Friend commit to a Bill in the Queen’s Speech that unequivocally deals in primary legislation with article 6 and article 8 grounds for frustrating deportation orders?
Mrs May
As I said previously, parliamentary time allowing, I intend to bring forward an immigration Bill to deal with the matters that can be dealt with. As my hon. Friend rightly says, although we are focusing on article 6 today, there is also an article 8 issue. Despite the fact that last year the House unanimously approved changes to immigration rules in relation to article 8, Members will know that unfortunately one of the judges in the lower tribunal indicated that it was only a weak parliamentary debate, which is why I intend and expect to bring primary legislation to the House.
Intercept Evidence
Dominic Raab Excerpts(11 years, 7 months ago)
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Mr Dominic Raab (Esher and Walton) (Con)
I, too, pay tribute to the right hon. Member for Tottenham (Mr Lammy) for raising this issue and for the way he has done so, particularly in relation to his constituents, but also in respect of the wider issues of justice at stake. Like my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), I wish to discuss the big picture and then address specific issues relating to counter-terrorism and white collar crime.
The big picture is that in this country, particularly since 9/11, we have somehow started to view the justice system as an impediment to fighting crime and to law enforcement, rather than as something that is integral to and part of the solution. My view is that the justice system is a weapon, because without it and its integrity law enforcement will always be subject to flaws, be open to challenge and be fickle and fragile. Over the past 10 years, the prosecutorial edge that we have in this country has, if anything, started to become blunter, because of these prevailing attitudes.
In a cross-party debate that is being conducted in an admirable tone and spirit, I must make some criticism of the previous Government. Nobody doubts the pressures on government, given that the first duty is to protect the public, but since 9/11 and 7/7 we have seen a trend of excessive, hyperactive legislation, coupled with increasing surveillance, not just of terrorists and serious criminals but of the ordinary, average citizen. I am thinking of identity cards; the surveillance of not just terrorist suspects but people responsible for fly-tipping, dog pooping and so on; and the current proposals on the internet and e-mail, and text and BlackBerry messaging, which are really a rehash of earlier proposals under the previous Government.
While we have had this ever-expanding criminal legislative base and net of surveillance, it seems that the one set of characters we are getting worse at tackling and bringing to justice using that surveillance are the terrorists. Between 2006 and 2010 convictions for terrorism offences fell by close to three quarters—75% is a massive drop at a time when we supposedly have an ever-increasing threat, a massively expanding criminal base and ever more use of surveillance. Despite all that we cannot address the No. 1 priority, which all in this House would agree is counter-terrorism. Incredibly, the most serious seem to slip through the ever-expanding net of surveillance.
There are various aspects to what I regard as a serious and substantial prosecutorial deficit in this country. I understand the English Bar’s concerns about plea bargaining, but without going the whole hog and adopting the American approach we could make an incremental and stronger use of plea bargaining, particularly in cases of “joint criminal enterprise”, where concentric circles of active criminal participants are involved. We need to look at the issue of plea bargaining.
We also need to have a far more robust prosecutorial policy. We saw with the Abu Hamza case the tendency of the intelligence agencies to sit back and watch, whereas he should have been nailed the minute he did something that crossed the line—the Americans take the latter approach. We saw the same thing at the time of the protests in 2006 against the Danish cartoons: eventually there were four convictions for the clear and flagrant criminal activity of inciting violence and murder but, boy, were we slow to respond. What message does it send if it takes six weeks to arrest people who were advocating murder on the streets of this country? We need to be more robust in the use of prosecution, because it is a weapon.
The real missing piece in the jigsaw puzzle has been intercept evidence. I make no claim that it is the silver bullet or some kind of touchstone panacea, but its law enforcement value is beyond doubt. We are, as others have said, alone in the democratic world in not taking advantage of it.
My right hon. Friend the Member for Haltemprice and Howden discussed the visit that he and I made to Washington in 2007, taking in the White House, the FBI and all the relevant law enforcement agencies. The impact there of intercept evidence is clear in action against kingpin mafia dons and counter-terrorism. An excellent report by Justice in 2007 reviewed 10 US terrorism plots involving 50 suspects since 9/11. The US authorities secured charges and convictions in each case using a 48-hour maximum pre-charge detention limit—bear in mind the debate we had in this country—and in every single case, that was made possible by intercept evidence.
Former US Assistant Attorney General Ken Wainstein argues that intercept evidence is a vital part of the preventive strand of US counter-terrorism strategy—not just the prosecutorial, but the preventive strand—because of the disruption it causes in the concentric circles of terrorist actors. The way the US authorities use it in the joint criminal enterprise approach is to use plea bargaining to turn the minnows against the big fish and then work their way up the ladder, so to speak. Its disruptive impact is not only powerful in and of its own right, but it also has a strong deterrent effect.
The Australian Commonwealth Director of Public Prosecutions, Damian Bugg QC, has highlighted the value of intercept evidence in drug trafficking cases, as well as terrorism cases. When asked about the analogous position in Britain, he says:
“The use of telephone intercepts in trials for terrorism offences and other serious crimes is now quite common in Australia and I cannot understand why England has not taken the step as well.”
Senior Canadian prosecutors make precisely the same point. We also have the evidence from our own law enforcement officials. The former DPP Sir Ken, now Lord, Macdonald told the Home Affairs Committee in 2009:
“If we had intercept available as an evidential tool and if we were directing intercept capability towards the gathering of evidence, I am absolutely confident that our experience would mirror the experience of other jurisdictions where it is used very frequently to great effect”.
The current DPP has drawn similar conclusions. He told the Committee:
“Evidence obtained by interception would be of benefit to prosecution in this country, particularly in respect of counter-terrorism and organised crime.”
That was not some abstract conclusion. He continued:
“I base that answer on an analysis of the cases where we have been able to use foreign intercept evidence. There have recently been 11 such cases involving organised crime. In eight of those cases, there were pleas of guilty based on foreign intercept evidence.”
We are missing a massive trick in this country. As others have mentioned, the assistant commissioner for counter-terrorism in the very difficult period between 2005 and 2007, Andy Hayman, said that while he began as a sceptic about the value of intercept evidence, he was turned around. Although I respect the Chilcot review and its conclusions, I have to say that in the light of the evidence made available both in this country and abroad by people who have taken a big picture, overarching and strategic view, I cannot accept that intercept is not of serious and substantial law enforcement value.
My right hon. Friend the Member for Esher and Walton—[Hon. Members: “That’s you.”] I am sorry; I meant my right hon. Friend the Member for Haltemprice and Howden. I was confused because he was referring to me.
Stephen Phillips (Sleaford and North Hykeham) (Con)
And you made yourself a Privy Counsellor.
Mr Raab
I think it is the only way I will get promotion these days.
It is an anomaly that we have so many other sources of sensitive information that can be used in UK courts. What is so special about intercept evidence? The objections to its use—certainly those from Chilcot and other reviews—cluster around three or four issues. We have heard about article 6, the threat of disclosure of sensitive sources and the inadequacy of public interest immunity, but the truth is that every other jurisdiction that uses intercept evidence has a killer back-stop: if they fear disclosure, they drop the charges. There is zero risk of disclosure because the option of dropping charges and dropping a prosecution is always available.
Another argument that has been made ad tedium is that a disproportionate part of the resources of the intelligence agencies, particularly GCHQ, would be absorbed, but that argument, which relates to transcription of the evidence, has been made almost totally redundant by modern information and communications technology and the ability to use it to store data and subsequently search it. That argument has therefore fallen by the wayside, but even so, the senior prosecutors I mentioned have made the point that the costs, to the extent that there are costs involved, are more than offset by the increasing number of people who plead guilty as a result of the use of intercept evidence.
I will refer briefly to the Natunen case, because there has been a huge amount of misreporting of its impact and what it really means for the use of intercept evidence. The 2009 Home Office report, and other GCHQ sources, point to the Natunen case and claim that it requires
“full retention of all intercepted material”
just in case it might include something that shows a suspect is innocent. That is simply an inaccurate reflection of the Strasbourg case law. In the Natunen case, which concerned a drug dealer who was convicted in Finland using intercept evidence, the Strasbourg Court emphasises that
“disclosure of relevant evidence is not an absolute right”,
acknowledging
“competing interests, such as national security or the need to protect witnesses”.
The Court stated that it was not its role
“to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them.”
Far from requiring “full retention”—this is the key point—the Strasbourg Court required that defence requests for disclosure of sensitive evidence be backed up by “specific and acceptable reasons”. The intelligence agencies would need to retain some relevant material. However, the Court made it clear that that necessitated neither defence access to that evidence nor the wholesale retention of all intercept material. In the Finnish case, it merely required that a judicial body approve the destruction by the intelligence agencies of relevant intercept material, collected over a limited three-week period. Frankly, I think that the Natunen case has been blown out of all proportion.
The real issue—I do not think that the agencies are making this up—is not the Aunt Sally or the false reasons that have been put up and are rebutted by the empirical evidence. The real reason is that GCHQ, which was originally an intercept organisation confined to the military zone, has had its functions broadened to include counter-terrorism and other serious crimes. Its role has increased exponentially. I can see why it worries about lack of focus and the huge competing obligations being placed on it with finite resources, notwithstanding the increases in its budget. I understand that, but that is a strategic issue of tasking intelligence, not a technical issue of viability.
Likewise, the fact is that we face a cultural shift with regard to law enforcement and the division between intelligence and prosecution. It is a shift that has taken place in other countries but that our authorities have not yet to bridge and overcome. There is a cultural aversion in this country to combining intelligence with prosecution, and I think that we have to overcome it.
Mr David Davis
I have long thought, partly as a result of the Northern Ireland experience, that our intelligence agencies are predisposed to go for disruption rather than prosecution. The whole nexus of the things my hon. Friend describes, their attitude to the use of intercept evidence and the problems addressing the exponential increase in GCHQ reinforce that. Does that not support the argument that a step change is needed from a disruptive approach to a prosecutorial approach, which is clearly what the Americans do, and with more success than us?
Mr Raab
I thank my right hon. Friend for his intervention and agree entirely. The other point to make is that the disruption model that has previously been used was shown to fail because of the huge increase in the number of terrorism suspects that successive heads of MI5 made clear in the public annual reports.
I am conscious of the time and want to make two points in closing. First, I think that the use of intercept evidence is not just confined to inquests, as important as the points made by the right hon. Member for Tottenham are, and not even just to counter-terrorism. We have seen in relation to the LIBOR scandal an incredible situation in which rate rigging, according to the Government’s proposals, now requires a separate criminal legislative proposal. I find it astonishing that it is not an evidential issue, rather than the lack of a criminal base.
Again, if we probe a little further into the work of the Serious Fraud Office and the Crown Prosecution Service, we find a very sleepy prosecutorial approach. Conviction for fraud by company directors fell by 48% between 2004 and 2010. Convictions for fraudulent accounting, which seem to me to be exactly what the rate rigging scandal was all about, fell by 77%. We need to wake up and stop having this interminable debate, which feels like a legislative version of “Groundhog Day”, about intercept evidence, to get on with lifting the ban and to use that evidence. The justice system is a weapon for, not an impediment to, law enforcement, and intercept evidence in prosecution must lie at its heart.