The Protection of Freedoms Bill’s content is to do with the upholding of European Court rulings. That is where the problem lies

On 1 March, the Commons debated the Protection of Freedoms Bill. During the debate Bill Cash made the following interventions:

The Secretary of State for the Home Department (Mrs Theresa May): I beg to move, That the Bill be now read a Second time.

Today we have a rare opportunity. The Bill gives us a chance to roll back the creeping intrusion of the state into our everyday lives, and to return individual freedoms to the heart of our legislation. Under the last Government, we saw a steady erosion of traditional British liberties and a slow march towards authoritarian government. They presented us with a false choice between our future security and our historic liberties, disregarding any notion of balance between the two.

The House rejected that choice on many noble occasions, notably when an extraordinary attempt was made to increase the period of pre-charge detention of terrorist suspects to 90 days. On other occasions, illiberal laws were passed, and on yet others, well-intentioned schemes were left open to abuse. The Bill gives us an opportunity to redress the balance and to right some of those wrongs, although it is not the only such opportunity. We have already repealed some measures, and we will repeal others.

Mr Cash: …Does my right hon. Friend accept that however good the intentions may be, one of the great problems with the Bill is that it serially adopts, endorses and puts into British legislation European Court rulings, and that that in itself runs counter to the sentiments expressed only a few weeks ago when the House voted against a ruling by the European Court of Human Rights by 222 votes to 15?

Mrs May: …I am well aware of the vote in the House on the Backbench Business Committee motion on prisoner votes, and the Government have made it absolutely clear that we are not happy about having to give prisoners votes and we will be looking to do so in the most minimal way possible.

The first issue the Bill addresses is DNA. The police national DNA database, established in 1995, has led to a great many criminals being convicted who otherwise would not have been caught, and I am sure all sensible people support it, but in a democracy there must be limits to any such form of police power, and we simply do not accept that innocent people's DNA should be kept for ever on a database, as the last Government seemed to think was appropriate. Storing indefinitely the DNA and fingerprints of more than 1 million innocent people undermines public trust in policing and goes against any sense of natural justice, so we will be taking innocent people off the DNA database and putting guilty people on.

The Bill introduces a new regime, whereby retention periods depend on a number of different factors, including the age of the individual concerned, the seriousness of the offence or alleged offence, whether they have been convicted, and, for under-18s, whether it is a first conviction. So in future, as now, an adult who is convicted or cautioned will have their fingerprints and DNA profile retained indefinitely, and we will take steps to plug the inexcusable gaps in the DNA database where the profiles of those who have previously been convicted of a serious offence are not currently included on the database.

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Mrs May: I am grateful to my right hon. Friend for his intervention and I absolutely agree with him. We will provide three order-making powers in the Bill to allow the repeal of unnecessary powers of entry, the addition of safeguards and the rewriting of powers of entry with a view to consolidating a number of powers in a similar area coupled with the inclusion of extra safeguards. Within two years of Royal Assent, the Government will be required to carry out a review of all existing powers of entry and to report the findings to Parliament. Provision will also be made for a code of practice for powers of entry, adding further protections for home owners.

Mr Cash: Will my right hon. Friend note that the Library research paper on the Bill indicates that a third of all powers of entry are based on EU requirements? Will she explain why and how she is going to repeal the provisions that are entrenched in our legislation through the European Communities Act 1972? What formula will she use-will it be the "notwithstanding" formula?

Mrs May: When I gave way to my hon. Friend, I almost said I had a deep suspicion that I knew what he was going to say, and I was absolutely right. Of course we will not be able to get rid of all powers of entry, and nor would that be appropriate. It will be appropriate to keep some, and with others we will need to look at the implementation of a request or desire to gain entry in relation to what is at stake, what is the most appropriate use of power and how that power should be used. The process will take some time, but it is essential that the Government are committed to reducing the number of powers of entry, whereas the previous Government oversaw a significant increase in that number. …

Yvette Cooper: My hon. Friend makes a really important point that goes to the heart of the problem. The reason for emergency legislation through primary legislation to change those powers is, in theory, to give Parliament the chance to scrutinise, debate and decide whether the action is reasonable. In practice, however, it is very hard to see how Parliament will be able to discuss the detail at all without being at serious risk of prejudicing a potentially dangerous investigation and important case, which we would all want to see go properly through the courts, with the proper judicial process followed.

That is why I say to the Home Secretary that it seems sensible to explore whether there are alternatives, such as bail conditions and other procedures with a judicial process, that might be used in such extreme circumstances. We all hope that the circumstances do not arise, but those alternatives would reduce our need to use emergency legislation.

Mr Cash: Has it occurred to the right hon. Lady or, indeed, to those on the Government Front Bench that we have habeas corpus, and that in such conditions it is the first duty of any judge to give effect to that provision? It does not matter what statute says; habeas corpus comes first, unless it has been expressly excluded by statute.

Yvette Cooper: The hon. Gentleman has considerable legal expertise, and I shall not attempt to get into a detailed debate about that point, but the critical issue is the complicated interaction between not only the work of the police and the role of Parliament, but the necessary role of the judiciary, and the alternatives merit more thoughtful debate, so that we do not prejudice individual cases or put the House in a difficult position.

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Mr Cash: I am sure that the right hon. Lady will appreciate, given the importance of this debate, that many of the points that she has made about those cases derive from European rulings and the European convention on human rights. The problem with almost everything she has said is that it was her Government who were responsible for bringing in and endorsing many of these provisions, including through the Human Rights Act 1998. Does she not accept that there is a dilemma, which has to be resolved in Committee, about whether we should go down the human rights route and follow article 8 or legislate in this House to ensure that we achieve justice for the people concerned?

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Mr William Cash (Stone) (Con): I fear that the expression "Protection of Freedoms Bill" is not really what is on the tin, as we say. People might think that the Bill protects freedom, but I am afraid to say that it does many things that are not apparent in its provisions. In particular, one of the greatest freedoms we need to protect is the right to decide our own laws and, indeed, to ensure that the judiciary complies with the will of Parliament. Unfortunately, on close examination, I found that the Bill's content is to do with the upholding of European Court rulings. That is where the problem lies and I fear that some hon. Members may have missed the wood for the trees. The Bill is the Protection of Freedoms Bill, but it would be far better to describe it as the "Subjection to European Rulings Bill", as one case after another simply endorses decisions taken by the European Court. By that, I mean the European Court of Human Rights in particular.

We recently debated the rights of prisoners to vote, and the result of the Division on the motion was 222 to 15. Unfortunately, I could not be here. I am sorry to have to admit this, but I was working as Chairman of my Select Committee in Budapest. However, I thoroughly endorse what was said in the course of that debate on prisoners' votes, but there is no reference to prisoners' votes in the Bill. The Bill has skipped that one; it is waiting for another occasion. The reason is quite simple: the coalition Government know that idea of including prisoners' votes as one of the freedoms in this Bill would be catastrophic for them. That is not to say that we should endorse the Bill's reference to other European Court rulings contained in the provisions, but not set out in the Bill. Unless hon. Members have read much of the background material and case law, it is impossible for them to know exactly how much this Bill offends the principle endorsed by this House by 222 votes to 15.

Let me provide some examples. Given that we have only recently come back after a recess, I doubt whether people have had a chance to read the Home Office memorandum on the Bill, and some may be more interested in its detail than others. I find that detail often throws up one or two of the unfortunate aspects of the manner in which Governments-and the coalition Government in particular-operate. The memorandum says:

"This is a human rights enhancing Bill."

No, it is not; it is a European Court of Human Rights enhancing Bill. I refer to cases such as the S. and Marper case which related to the retention of fingerprints and biometric data. I would like to see such matters properly dealt with in legislation, and the same applies to the stop-and-search provisions, to which the Gillan and Quinton case relates. Why can we not legislate on our terms in this House? Why must we subject the House to legislating to implement the rulings of the European Court of Human Rights, when we have no reason whatever for not legislating on our terms? Putting it in statute form means that the matter goes to our courts on an interpretation of that legislation. Then, in the interpretation of the legislation, our own courts, either at first instance or more likely in the Supreme Court, apply the European jurisprudence.

I remind the House of a point that I have tried to make in debates over a long period and of a speech by the Lord Chief Justice, Lord Judge, who said that we must beware of the manner in which our legislation is being subjugated to Strasbourg decisions. He warned the judges, "Brothers and sisters, beware of applying the decisions of the Strasbourg court." [Laughter.] Brothers and sisters, comrades.

The manner in which the implementation will happen is a form of Trojan horse. I would want to see many of the problems that the Bill raises dealt with by legislation, to ensure that people were not unfairly stopped and searched or that children got the proper protection. However, it should not be done through this vehicle. By not eliminating the European convention on human rights and the Human Rights Act formula, we give ourselves over increasingly to the Europeanisation of our law-making and the judicial claims made in the Supreme Court at the expense of the House. Effectively, we are digging our own grave.

At the same time, I hear and read that the Government are becoming more "Eurosceptic"-I do not know what that word means; Eurorealist is much more to the point.

Ms Louise Bagshawe (Corby) (Con): Is my hon. Friend not in danger slightly of over-egging the pudding? I share many of his concerns about European law, but does the Bill not attempt to address some domestic injustices, and should we not support such a step in the right direction?

Mr Cash: As I said, I am extremely glad that many of the provisions are being dealt with, as they needed to be dealt with, but not in this manner. Notwithstanding the Human Rights Act, if it was done as my Bill on terrorism will provide, for example, we could preserve habeas corpus and avoid all the difficulties that have arisen in relation to control orders and pre-charge detentions, on our terms. That is the way we should be going, but that is for another day.

The Bill takes us in the wrong direction. As I said in an intervention on the Home Secretary about powers of entry, the Library note states that

"around one third of these powers of entry derive from regulations made under the European Communities Act 1972."

The Home Secretary said it was important for us to get rid of many of the 1,272 powers of entry, but, as I pointed out to her then, it is essential for us to get rid of the regulations made under the European Communities Act 1972 as well. I think she would have accepted that, had it not been for the existence of a rather considerable problem: we cannot get rid of the regulations made under the 1972 Act without expressly providing in the legislation that, notwithstanding the Act, we should act in that way. There is an element of what I would not describe as hypocrisy, but would certainly describe as contradiction, in the principle behind the Bill.

I could give many other instances of overlap with the European Court of Human Rights, but I shall merely observe that I think it extremely unfortunate that this is being sold as the Protection of Freedoms Bill when, for practical purposes, it is taking us further and deeper into European integration. I say that without really wanting to have to say it. It would be easy to step back and say, as my hon. Friend the Member for Corby (Ms Bagshawe) said just now, that it does some good. Indeed, I have heard many Members say that there is a great deal of good in it. However, as I said to the Home Secretary earlier, although there may be good intentions behind it, we must ask ourselves what kind of law we want in this country.

When the Supreme Court speaks of the rule of law, I ask yet again: which law, and who will enforce it? We already know that there are serious problems, but here is another one. In one of the cases in question, after the House of Lords had made its judgment the Supreme Court was brought in, and, because the European Court of Human Rights had made a decision in the meantime, decided to endorse that decision rather than the decision made by our own courts. Some very difficult questions arise. There seems to be an increasing tendency for the Supreme Court to assent to the manner in which the European Court of Human Rights makes its decisions, effectively moving into a new arena in which what Parliament may decide is overridden, and making decisions that are not necessarily what the electorate expected when they elected us as Members of Parliament.

Let me also mention, in parenthesis, the accession of the European Union to the European convention on human rights. As I discussed the issue during our debates on the European Union Bill, I shall not go over the territory again, save to say that it creates a great deal of uncertainty about which of the jurisdictions will prevail. I regret to say that I believe that what is happening in the Bill is not what was expected to happen. Some commentators may misunderstand it, but the truth is that if we do not get the principle right-the principle of who rules-we will find ourselves drawn increasingly into a web that is growing all the time, involving the sovereignty of the House and decision making.

I believe that this is entirely deliberate. I am absolutely certain that the Home Secretary has been properly briefed. I think that she knows exactly what is in her Bill. I think that she wants it, I think that she is determined to have it, and I think that the coalition is completely and utterly convinced of its merits. Indeed, the Home Secretary said the following in a statement on the judgment in the Gillan and Quinton case:

"The Government cannot appeal this judgment, although we would not have done so had we been able."-[ Official Report, 8 July 2010; Vol. 513, c. 540.]

This is therefore about an attitude of mind: it is about there being a determination to go down a certain route, irrespective of the consequences for how we in this House legislate. I therefore simply say that I think there are many good reasons for adapting some of the provisions that are currently on the statute book, but the key is how we do it. The crucial point is that if we do it the wrong way, all we will end up doing is reducing the right of this House to legislate for itself.