Continued participation in the European Arrest Warrant

Part of Counter-Terrorism and Border Security Bill – in the House of Commons at 6:30 pm on 11th September 2018.

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Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales) 6:30 pm, 11th September 2018

It is a great pleasure to follow the irrepressible Chair of the Justice Committee, of which I am a member.

Before I discuss access to lawyers under legal professional privilege, it would be churlish of me not to thank the Minister for tabling amendments 6 and 7, versions of which both the shadow Minister and I tabled in Committee. The amendments will essentially ensure that public demonstrations cannot be subject to any financial charge under the Road Traffic Regulation Act 1984. It is vital for our democracy, now more than ever, that the right to assemble, and to do so without charge, is protected.

Without going over the ground covered fairly extensively from the Labour Front Bench, I put it on the record that I share the concerns voiced by Nick Thomas-Symonds about the Northern Ireland border stops and the huge sensitivity of this issue. I genuinely hope that the Minister will look at that, take it away and come back having addressed it.

The Bill as it stands restricts access to a lawyer for those detained under schedule 7. Specifically, it would restrict the right of an individual to consult their legal representative in private, away from a relevant officer. Being able to speak with a legal representative in private is a fundamental right, which should not be infringed. Indeed, in oral evidence, a whole cast of people backed us up. Michael Clancy of the Law Society of Scotland spoke about the fundamental importance when he said:

“If we want people to be in a position where they can freely discuss matters with their legal representatives, we have to preserve this value. It is key to the rule of law that people can discuss matters openly with a legal representatives so that the solicitor, advocate or barrister is in a position to advise properly on what avenues are open to the person. Clearly one would want to ensure that that was adequately protected.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018;
c. 49, Q103.]

Richard Atkinson from the Law Society of England and Wales also raised concerns, suggesting that the proposal risked the excellent reputation across the world of UK justice systems. He said:

“The cornerstone is legal professional privilege. That is not access to a lawyer;
it is the confidential nature of discussions between a lawyer and their client. That is the cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard that we have in this country. That is what is being undermined by this Bill saying that a police officer can stand and listen to the consultation that is going on between the client and the lawyer.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018;
c. 28, Q63.]

Access to a lawyer—fundamental access to justice—is something we should not compromise on. This is not about constraining the powers of the hard-working men and women who work at our borders; it is acting on the concerns that were expressed to us, to ensure that correct and proper due process is followed.

I suspect that the schedule has been drafted as a result of concerns that lawyers and legal advisers could be exploited and manipulated in some way, as has been outlined. However, as was pointed out, it is not unknown to our criminal justice system; we already have powers in place to deal with such occasions. For example, in code H of the Police and Criminal Evidence Act 1984, which deals with counter-terrorism cases, if there is a concern about an individual lawyer, there is provision for the suspect to have the consultation with that lawyer delayed, but to be offered the services of another lawyer in the meantime, so the suspect is not devoid of legal advice. We should protect that access at all costs. I accept that the Government propose the changes with the best of intentions, but we have pointed out that there are ways for it to be done without eliminating or infringing on the basic principle under the rule of law.

I express my support for the Liberal Democrats’ new clause 1, to which I have added my name. One of the greatest threats to our national security currently is, of course, Brexit and the fact that we face losing our seamless access to multilateral information-sharing tools. As we have heard, organised crime and terrorism do not respect borders and it is essential that Police Scotland—in fact, all the police services in the United Kingdom—can access the information systems, support and technical expertise available through Europol, not only to make Scotland safe, but to contribute to making Europe safer. As the hon. Member for Torfaen said, the recent naming of two suspects in the Salisbury incident and the issuing of a European arrest warrant showed just how vital this tool is to protecting the UK from threats, and why it must, must be maintained.

Following our exit from the EU, there is a major risk that any new arrangements that are put in place will be suboptimal to those at present. Further to that, there is also an issue with data sharing between the UK and the EU, as the EU will most likely require the UK to maintain data protection and privacy laws that can be deemed equivalent to those in force in the EU. We must ensure that our law enforcement agencies can continue to have the same level of access to Europol as they currently enjoy.

There is also a need to preserve stability in the law. Repealing legislation and preparing new legislation to fill in gaps arising from leaving the EU will compromise a significant part of domestic legislation that is passed at, or following, a withdrawal. Any future arrangements must take into account the autonomy of Scottish criminal justice institutions and provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts.

As a matter of security, we cannot afford an operational break in our access to EU cross-border tools, because they are part of the day-to-day work of the police force. Just today, the Lord Advocate of Scotland, giving evidence to the Scottish Parliament Justice Committee, said:

“I don’t think it controversial to observe that leaving that regime without replacing that regime would significantly and adversely affect our capabilities. From a professional criminal justice point of view, the realistic issue is the extent to which this can be mitigated.”

The Government’s dangerous Brexit plans, such as they are, may well leave us outside the European arrest warrant and key agencies such as Europol. I cannot insist enough that that would be incredibly dangerous to the future security of Scotland, the United Kingdom and, potentially, the EU. We must be able to share vital information to keep people safe from terrorism, human trafficking and organised crime. Leaving the European arrest warrant is yet another potentially disastrous Brexit bonus that we could all do without. I wholeheartedly support new clause 1.