Continued participation in the European Arrest Warrant

Counter-Terrorism and Border Security Bill – in a Public Bill Committee at 10:15 am on 10 July 2018.

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“(1) It is an objective of the Government, in negotiating the withdrawal of the United Kingdom from the European Union, to seek continued United Kingdom participation in the European Arrest Warrant in relation to persons suspected of specified terrorism offences.

(2) In this section, ‘specified terrorism offences’ has the same meaning as Schedule 15 of the Criminal Justice Act 2003.”—

This new clause would require the Government to adopt the continued participation of the UK in the European Arrest Warrant in relation to people suspected of terrorist offences as a negotiating objective in the withdrawal negotiations with the European Union.

Brought up, and read the First time.

With this it will be convenient to discuss new clause 7—Continued participation in Eurojust and Europol—

“It is an objective of the Government, in negotiating the withdrawal of the United Kingdom from the European Union, to seek continued United Kingdom participation in Eurojust and Europol’s activities relating to preventing acts of terrorism.”

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

These new clauses make it an objective in the Brexit negotiations to continue participation in the European arrest warrant, which new clause 6 refers to, and in Europol and Eurojust, which new clause 7 refers to. They are not restrictively drafted; they simply ask for that continued participation as an objective.

It is worth reminding ourselves of the great advantages the European arrest warrant gives us with regard to law enforcement and protecting our security. European arrest warrants are of course valid in all member states of the EU. They can be used to ask a state to arrest and transfer a criminal suspect to be put on trial, or to ask for someone who is sentenced to custody to be transferred to the UK to complete that sentence.

I have visited the National Crime Agency on a number of occasions over the past year—I am grateful to the Minister for facilitating those visits—and I have looked carefully at the extent to which the UK uses the European arrest warrant. In the calendar years from 2010 to 2016, the UK issued 1,773 requests. It is not the case that the European arrest warrant is not relevant to how we enforce our anti-terror laws, because 11 of those requests related purely to terrorism and a significant number related to organised crime—55 requests related to human trafficking, 206 to child sex offences and 255 to drugs trafficking. The European arrest warrant is an important tool for keeping the public safe.

Extradition outside the European arrest warrant

“can cost four times as much and take three times as long. It would mean an end to the significant exchange of data and engagement through Europol. And it would mean the UK would no longer be able to secure evidence from European partners quickly through the European Investigation Order”.

Those are not my words but the words of the Prime Minister about the importance of the European arrest warrant. It is vital that we seek continued participation.

There is a concern about Europol, and the Minister would do well to provide reassurance by backing new clause 7. Denmark is a recent example of a country leaving membership of Europol but maintaining access. Its experience should give the Minister pause for thought. In a referendum in 2015, Danes rejected a proposal to end the country’s full opt-out on home and justice matters and convert it to a version that would have allowed opt-outs on a case-by-case basis. That meant Denmark’s full membership of Europol was brought to an end and it was left having to negotiate a more restrictive access agreement, which stated:

“Irrespective of any access restrictions, Europol shall notify Denmark of any information concerning it if this is absolutely necessary in the interest of preventing imminent threat to life.”

Denmark continues to pay an annual sum, accepts the jurisdiction of the European Court of Justice and has observer status at Europol board meetings. However, the UK will not be in the same position as Denmark, which remains an EU member. As a third country, the UK will be negotiating from a different position—a point the EU’s chief negotiator, Michel Barnier, has made more than once. Europol co-operates with third countries, but the Minister would do well to consider why that will not work in the UK’s case. It is crucial that the UK maintains access to Europol’s data.

New clause 7 also deals with Eurojust and the general tools that are available. It is vital that we have judicial co-operation on criminal matters. That was created to improve the handling of serious cross-border and organised crime by stimulating investigation and prosecutorial co-operation.

Whether people voted remain or leave, and whatever shades of opinion there are about our future relationship with the European Union, organised crime knows no borders. To keep our country safe, we have to co-operate with the EU27 and other countries around the world. The Prime Minister herself has highlighted that. I suspect that people’s attention may have been elsewhere, but she spoke clearly in her statement yesterday about the idea of a security treaty.

New clauses 6 and 7 would simply make continued participation a negotiating objective; they would not tie anybody’s hands in negotiations. They are just a common-sense statement of the need for continued co-operation in order to keep our country safe. Keeping our country safe is far more important than any political divisions or any different shades of opinion about our future economic relationship. The Government should commit clearly to these two new clauses. After all, they are only in line with what the Prime Minister has said. I therefore hope that the Minister will be able to support them.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth 10:30, 10 July 2018

I want to support my hon. Friend’s arguments for these new clauses. We discussed this issue at great length in the Home Affairs Committee, because continuing that security co-operation in so many areas is crucial to the functioning of our police forces and law enforcement agencies. In that regard, I was greatly concerned when reviewing the voting record of the new Brexit Secretary. I hope that the Minister will be able to address this. In 2014 the new Brexit Secretary voted twice against close working with the EU on criminal justice and associated data protection measures. He also voted against the UK re-joining a series of measures—

Order. I think that this is somewhat off the subject.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I have a question for the Minister: what is his position on these matters?

Order. We will not stray on to the voting record of another Member who is not even in this room.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

It relates to the voting of the Minister. I am glad to see that the Minister actually supported these sensible measures. They were important measures on security co-operation that relate to the two new clauses, on the functioning of the European arrest warrant, and the sharing of data in order to enforce such warrants, and on the nature of our relationship with Eurojust and Europol—crucial mechanisms that the Minister saw right to support at the time. I assume that he continues to regard co-operation with those agencies as very important. Can he be clear on where the Government’s policies are in this area? As my hon. Friend the Member for Torfaen asked, does he support us retaining that close co-operation to keep all our citizens safe?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I had hoped that the Brexit word was never going to pass anyone’s lips in this Committee. On the penultimate new clause, I had hoped we would have had the chance of a long and healthy life. Unfortunately, the word has ventured into the Committee.

The aims of the new clause tabled by the hon. Member for Torfaen are exactly the aims of the Government’s negotiating position. We want access to the European arrest warrant. We want to play a full part in Eurojust in that way. We have made an unconditional offer to the European Commission on security. However, the difference between our position and the proposed primary legislation is that we want that to be the outcome. The drafting of the new clause is flawed, as it would have a limited practical impact on the new clause. It does not oblige the Government to secure an outcome or prescribe how negotiations are conducted but merely affirms that it is a negotiating objective of the Government to do so.

It is conceivable that the Commission is already well aware of our negotiating aims—in fact, I can tell you that it is. The inclusion of the new clauses could provide the Commission with more weight to leverage those tools in the negotiations.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I am relieved to hear that the Commission is clear about our negotiating aims, but I would not be over-confident about that. On this crucial point, I am sure if I had been too prescriptive, the Minister would be jumping to his feet saying that I had not left enough flexibility for negotiation. Given that, so far, he has hardly disagreed with anything in the new clauses, I presume it is clear.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I do not believe the place for Government negotiation is in primary legislation. The ball is firmly in the court of the European Commission. Our position is an unconditional offer on security. The only time I ventured from the shelter of security to engage publicly on a European issue was when Michel Barnier said recently, in a rather dismissive and offhand manner, that we would not have access to any of these issues as a third country. That does not reflect the examples of special relationships with Europol, of which there are at least two—probably more.

The hon. Gentleman mentioned Denmark, which is unique as a member of the European Union that has pulled out of Europol. Switzerland and Norway, which are not EU members, have good access to Europol for the sharing of data. The point is, when the European Commission has wanted to, it has extended a bespoke or special unique relationship. I venture that the United Kingdom has contributed, shaped, funded and supported many of these European organisations. Europol was created predominantly by the United Kingdom, and it shares huge amounts of our data—our citizens’ data and our intelligence—with other European countries.

It is important that our unconditionality is taken on board and embraced by the Commission. My public venture to Mr Barnier, apart from a quip about gambling with safety, was that security was not a competition. We are not talking about trade. It is about working together, where the sum of the parts is greater than the individual contributions.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

As I have said, I served as a vice-chair of the security and defence committee of the European Parliament, so I am aware of how important co-operation is. Does the Minister agree that if we want to be successful against terrorism we need to improve co-operation? We have benefited from co-operation.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

We absolutely have. It is not just about scale or who is better at one thing over the other; it is genuinely that in such activity the sum of the parts is greater. The United Kingdom has developed a clear lead on counter-terrorism policy through our intelligence services and police services learning to work together on domestic issues quicker than our European allies. That needs to be scaled up to working internationally. At the same time, we need to navigate the real obligation of the state to protect its citizens’ data. It is not a free-for-all.

The hon. Member for Torfaen is right, and we are totally determined to get there through negotiation. It is not that we disagree; I simply take the view that primary legislation not the place for individual parts of a negotiation. The new clauses would not make any difference, because the Government would not be bound to the outcome but just be saying, “This is what we intend.” The Prime Minister has said what our position is and what we want. I have said it to the Committee, and we have said it to the European Commission. It has been said on a number of occasions and no piece of primary legislation will change that. We agree with the intention, and I understand the symbolism of putting an objective into the Bill, but it is not necessary. As long as I am the security Minister and the Government are negotiating, we wish that to be the case, and that is what we are asking for.

The hon. Member for Cardiff South and Penarth worries about the new Brexit Secretary, but we are all in a team with collective responsibility and he was probably not aware in 2014 of the clear importance of intelligence and security sharing and how it makes a difference to saving lives every single day. Most recently—two weeks ago—the United Kingdom contributed a significant part towards foiling a plot in Cologne involving a terrorist who had managed to make ricin and was making a bomb to devastate that city and its people.

As long as I have breath in my body, I shall do everything I can, but I do not believe that primary legislation is the place for our negotiating objectives. I will happily arrange it for anyone who is in any doubt to visit our police officers to see how important that is.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

When she was Home Secretary, the Prime Minister warned that Brexit had risks for our national economy and national security. Does this new clause not go some way towards reassuring the Prime Minister about her concerns about Brexit?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I refer the hon. Gentleman to the Prime Minister’s Munich speech in February, in which she continued to make this point about security—it is not a competition and our offer is open. The only danger to our security would be a dismissal by the European Commission’s out of hand and refusal to give us any intelligence or data. That would be a danger to us and to it; it would cut off its nose to spite its face.

All the Commission’s professionals, and member states’ intelligence services and police forces, are telling them that. In all my meetings with member states’ interior and security Ministers, they agree and concur. It is time that the Commission reflects that, because it is in the interests of European citizens to continue this relationship. It is not purely in our interest; it is in their interests, too.

The Prime Minister is absolutely determined on this point: a safer Europe is a safer Britain; and a safer Britain is a safer Europe. I do not think that will change. My simple dispute with the Opposition Front-Bench spokesperson is that I do not believe that this duty needs to sit in primary legislation.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I am confused as to why the Minister is indicating that he will vote against the new clause, because he seems to agree with it wholeheartedly.

First, it would make a difference to put it in primary legislation. It would send a clear message to the European Commission, about which the Minister is worried; it would reassure the public; and it would also give Government Members the chance really to put country above party, by supporting the new clause. I will therefore press it to a vote.

Question put, That the clause be read a Second time.

The Committee divided:

Ayes 8, Noes 10.

Division number 5 Caledonian Pinewood Forest — Continued participation in the European Arrest Warrant

Aye: 8 MPs

No: 10 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

New Clause 8

“(1) Providers of travel services by air, sea or land for persons who embark or arrive in the United Kingdom, must transfer passenger name record data to relevant agencies within the United Kingdom, in advance of travel, provided that such data are collected by providers in the normal course of their business.

(2) For the purposes of subsection (1) relevant agencies include, but are not limited to, United Kingdom—

(a) police forces,

(b) intelligence agencies, and

(c) border security and immigration control agencies.

(3) The Secretary of State may by regulations made by statutory instrument set out—

(a) the specific types of minimum data required, which shall include names, dates of birth and passport or travel document information, required under subsection (1),

(b) arrangements and safeguards for handling of the data required, and the process for transferring of such data, required under subsection (1), and

(c) a restitution scheme to allow individuals to provide relevant information to protect against wrongful denial of travel.

(4) The agencies listed in subsection (2) may compare the data obtained under subsection (1) against relevant law enforcement databases in order to identify persons that may have been convicted of terrorist offences, serious crime or hostile state activity.”

This new clause would require the sharing of a minimum amount of passenger data by travel operators, for international transport beginning or ending in the UK, with relevant law enforcement agencies – in order to check this against relevant UK terrorism, hostile state activity, and criminal databases, to allow decisions to be made on whether to grant entry / exit. It also provides for restitution provisions to prevent wrongful denial of travel.—(Stephen Doughty.)

Brought up, and read the First time.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

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

I shall begin, Mrs Main, by apologising profusely to you and to the Committee for not being here earlier for another new clause, which I did not move. I can only say that I completely misjudged the impact of a very important event that is taking place today on the Mall on the traffic, which unfortunately was in gridlock. However, you and the Committee will be pleased to know that it was only a probing measure. Because of some external feedback I have received I shall consider amending it and introducing it for discussion on Report. It was very useful feedback on the provisions on the amendment paper in any case, and I hope that that will ensure that I can supply more carefully crafted words on Report.

New clause 8 is largely a probing measure, to try to persuade the Minister to explain what is happening in this important area. It would require the sharing with relevant law enforcement agencies of a minimum amount of passenger data by travel operators for international transport beginning or ending in the UK, to check that data against relevant UK terrorism, hostile state activity and criminal databases, to allow good decisions to be made about whether to grant entry or exit. However, it also provides for restitution provisions, such as we see in the Electronic System for Travel Authorisation, or ESTA, arrangements with the United States, to prevent wrongful denial of travel, recognising that mistakes have often been made. Perhaps names have been mixed up, or there have been wrongful listings of people who have had convictions or other impacts against their names.

Essentially the new clauses relates to concerns that have been raised with me regarding a number of cases, some of which I have discussed with the Minister where, unfortunately, individuals have been able to travel abroad to engage in terrorist activity or indeed return to the UK. We are well aware of some of the high-profile cases in the news in recent weeks. Regrettably, in my own constituency, certain individuals, despite having been subjects of interest, were able to travel abroad and undertake acts of terrorism in Syria. That should be of concern to all of us. We need the fullest co-operation with travel operators, including airlines, Eurostar and ferry port operators. The sharing of information in a timely manner is often crucial both to intercepting individuals who may be willing to travel or indeed to enter the UK to commit these acts, and to ensuring that there is a sensible, pragmatic approach to the issues so that individuals who may be of interest and may come up in these checks can be detained at the earliest possible opportunity, not when they are in the process of boarding a flight or are already on a flight or a Eurostar train or something else. We would all agree that it is important that we deal with these issues as soon as we have the information.

I understand—perhaps the Minister would clarify this—that there is a degree of support from certain major airlines for sharing this information. We are now required to enter advance passenger information when travelling on Eurostar. When travelling to the United States, it is important to provide advance passenger information before secondary checks that take place before people board US airlines, and that has been the case for the last few years. There is also the whole ESTA—Electronic System for Travel Authorisation—process which provides, crucially, for a restitution number to be inserted so that somebody is not wrongfully denied travel just because of a past mistake or confusion over a name.

I would like to see a clearer and more consistent approach, particularly from airlines and other forms of travel. When the Minister responds to the new clause will he say something about the measures that have been put into place to ensure that information is shared in a comprehensive and timely manner to ensure that we can prevent those wishing to do harm to our country or other countries overseas from doing so?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security) 10:45, 10 July 2018

I am grateful to the hon. Member for Cardiff South and Penarth for setting out the proposals in the new clause, and I hear what he said about his other proposals. It would have been interesting to debate those.

As the hon. Gentleman explained, the new clause would require travel operators to share passenger data with relevant law enforcement agencies and provide for restitution provisions to prevent wrongful denial of travel. I fully share his objective of ensuring that police and others have access to passenger data, but there are already provisions for the transfer of passenger name records for immigration and policing purposes in two different immigration Acts and in the passenger name record data regulations. All of those provisions are subject to safeguards provided for in the Data Protection Act 2018. Given the extensive legislation already in place governing the provision and processing of passenger data supply, it is unnecessary at this time to provide any new powers in this regard.

Turning to the provision of restitution to prevent wrongful denial of travel, I appreciate the hon. Gentleman’s concerns, but the new clause would have unintended consequences that would fundamentally undermine vital tools that protect this country from terrorism and hostile state activity. Although new clause 8 is intended to help passengers by enabling them to provide information to police that would protect against wrongful denial of travel, it would risk undermining the current no-suspicion element of the power. The effect of the new clause would be to allow some individuals to establish the fact that information exists on them on police databases—information that had been used to inform an examination under schedule 3.

We have already debated the necessity to conduct schedule 3 and schedule 7 stops on a non-suspicion basis, so I will not take up more time by going over the same arguments again. Decisions to examine a passenger under schedules 3 or 7 will be informed by a number of considerations, not just passenger data. Other considerations may include the current threat from terrorism and hostile state activity to the UK; available intelligence; trends or patterns of travel; and observations of passengers and their behaviour while they are in a port or border area.

We know that terrorists and hostile state actors are aware of the UK’s security measures to counter their activities, and intelligence shows that they flex and adapt accordingly. If we implement the process proposed in the new clause for confirming or amending any of the data that may be used in consideration for making a stop, terrorists and hostile actors will adapt their methods of travel to minimise the chances of alerting, and being interdicted by, the police, or will recruit individuals who are unknown to law enforcement to bypass data checks.

New clause 8 would undermine the utility of the powers, and compromise police and operational partner efforts to keep the public safe. However, the hon. Gentleman makes a valid point about when the powers are used and the financial consequences that they can lay on individuals stopped, and I met him recently to discuss that; indeed, I have constituency cases on the issue.

We are doing work in response to the hon. Gentleman’s points, to see what we can do to ensure that the data we have is used at the earliest opportunity for individuals transiting through ports, and to ask stronger questions of police officers about whether measures are necessary. For example, most of the loss occurs when people are exiting the UK—while they are on the outbound leg of a holiday, rather than the return. We are asking basic questions about whether measures could wait until they return. Obviously, if the intelligence or threat is high enough that they cannot, those measures will be taken. Also, we are looking at what we can do to speed up the data at check-in at the gate.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I thank the Minister for giving way, and I have listened carefully to the arguments he has made on the other parts of the new clause. On the issue of speed, is he satisfied at the moment that all airlines, in particular, are sharing information quickly enough, and that their systems allow that to be done, so that we can detain people who might be going to commit acts and ensure that we do things at the earliest possible stage?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I believe the airlines are, but of course some of the data is held by airports. If someone checks in at security, that may, at the moment, be airport data, not airline data. How can we get that data to our police in a timely manner so that the most appropriate time is when I emerge from check-in or my baggage search, rather than when I am on an aeroplane, or just about to get on an aeroplane, and the clock is ticking down after I have been shopping in the terminal and so on?

I am absolutely determined—I picked up on the hon. Gentleman’s points from our meeting—to see what we can do to improve that. It slightly depends on the age of the airport and how its systems work. For now, I am content to see how that work goes, to see which airports can do that and which cannot, and to feed into the data other information that the police might have to better inform them.

I am not sure we will get many challenges from the Russian, or the hostile, state, but, in the terrorism space, if the powers are to continue to have predominant public support for their necessity, we have to ensure that they are targeted and sympathetically used—I do not want the powers to end up in the same debate as stop-and-search, which made that a toxic power for so long. I will be pressing to ensure that that happens, and I will happily update the hon. Gentleman.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I thank the Minister for his comments. On the basis of what he said, I am happy not to press the new clause at this stage. I ask that he keeps this matter under review and looks at it closely, because we need to ensure that information is shared as quickly as possible, both from the point of view of keeping the public safe and ensuring that the powers are used effectively. We need the co-operation of all travel operators, airports and ports of entry and exit as much as possible. However, given what the Minister has said, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

On a point of order, Mrs Main. Before we draw to a close, I would like, to conclude these proceedings in an orderly manner, to put on the record my thanks for your chairmanship and Ms Ryan’s chairmanship. I do not think that those on either the Government or the Opposition Benches disappointed the Chair—I hope not.

I also thank those on the Opposition Front Benches. I am always amiable to the hon. Members for Torfaen and for Paisley and Renfrewshire North, and try to accommodate them. As I set out at the very beginning, I have sought, where possible, to concede. I have conceded on the suggested improvements to clause 3—the three clicks—and to the Scottish National party about clarifying that there will be no charging for public order and the right to protest.

I do not know about you, Mrs Main, but I sat for years on the Opposition and Government Back Benches listening to the valiant efforts of Opposition MPs, who get no recognition whatever. I always promised myself that I would never allow that to happen as a Minister.

I thank my officials, who have been very patient when I have said, “That makes sense. Why can’t we do it?” to which the whole Government says, “The Minister might actually change something!” The Bill manager, in particular, has been incredibly patient. I am still determined to improve the Bill before it gets on to the statute book.

I thank the Clerks, the Hansard writers and the Doorkeepers for keeping us on the record and safe. I thank the lawyers from the Home Office, the Ministry of Justice and the Treasury, and our witnesses, who set out their clear positions at the beginning.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

Further to that point of order, Mrs Main. I echo what the Minister said, and I thank him for taking a constructive approach to the Bill—he said on Second Reading that he would do that. I add my thanks to the Doorkeepers and the Hansard writers. I am very grateful to the Clerks, in particular, for dealing with the numerous amendments I emailed in.

I thank you, Mrs Main, and Ms Ryan for your excellent chairing of the Committee. I am very grateful to all the officials for their contribution to the Bill. I thank the hon. Member for Paisley and Renfrewshire North for working so constructively, and the witnesses for giving us very helpful evidence and cause for debate throughout the Committee.

Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales)

Further to that point of order, Mrs Main. This is for the hat-trick. Thank you for allowing us to sit without ties. I thank you and Ms Ryan for chairing the Committee and for being so patient with us at certain times. I thank the Clerks, the Doorkeepers and the various officials. I add my thanks to the witnesses who came to the oral evidence session and those who submitted written evidence and briefing papers, which helped Members to draw up amendments.

I thank the Minister for being open—not quite as open as I would have liked, but open none the less, compared with other Ministers I have sat opposite in previous Bill Committees. I also thank the other Front Benchers for their assistance and co-operation.

Bill, as amended, to be reported.

Committee rose.