Crime (Overseas Production Orders) Bill [ Lords ] (First sitting)

Gavin Newlands Excerpts

Committee Debate: House of Commons
Tuesday 18th December 2018 Public Bill Committees

[Nick Thomas-Symonds]

It seems to me that the Minister is saying that there are circumstances in which he would make a different judgment. His judgment to me is that now is not the time to make a stand. Respectfully, I have to disagree with him. I believe that now is the moment to make a stand. The Opposition oppose the removal of the amendment.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to serve under your chairmanship, Mrs Moon. The hon. Gentleman has set out the opposition to the Government amendment with commendable detail and clarity. I do not seek to repeat too much of that, but I will make a brief statement setting out the Scottish National party position.

The Minister spoke of principles and of tying the hands of Governments. I have a different set of principles: the SNP has not been a member of a Government who have passed on information without seeking or receiving assurances about the death penalty. The Minister also spoke about a compromise potentially before Report. That is largely a matter for the Government and the Labour party, although we would be more than happy to engage in that process.

To be crystal clear, the SNP will only support a compromise where the default position of Parliament would be not to provide data where assurances on the death penalty have not been received or sought and where it would be for the Government to argue otherwise in exceptional circumstances. At the end of the day, article 2 and protocol 139 obligations should be met and our shared principles across the United Kingdom on capital punishment should be protected.

[Mr Wallace]

The hon. Gentleman says it is for the Government to argue about exceptional circumstances. Is he saying that a Government should always seek death penalty assurances and if they do not get them, there could be exceptional circumstances, or is he saying that there are no circumstances or no exceptional circumstances—no nothing—where they would be allowed to seek that?

[Gavin Newlands]

I am saying that it is our position, and it should be Parliament’s position, that we should not give information to any country seeking the death penalty or seeking information from the United Kingdom in pursuit of the death penalty.

We are trying to listen to the principle that the Minister has set out, and we are trying not to bind completely the hands of future Governments. If we are looking to achieve compromise and there is a small glimmer whereby the Government can argue in exceptional circumstances for that duty to be removed—we will be arguing against that at every turn, I am sure—it should be set out in the Bill, so that we are not handing over information, but Governments can argue for doing that in exceptional circumstances. What the Minister has been arguing should be flipped on its head. We will vote against the Government amendment.

[Mr Wallace]

I have listened to the SNP, and I am happy to look at further scrutiny of those decisions when we consider exceptional circumstances. The SNP, having been in government in Scotland for a long time, will know that Governments very occasionally encounter circumstances where they have to make difficult decisions. If the hon. Gentleman is looking for more scrutiny, we are absolutely happy to provide that. We are also happy to provide in the Bill a primary obligation to seek death penalty assurances in a way that has never been done before. We are happy to look at that.

What we cannot do is seek and acquire those assurances, because we are not in charge of the other country. We can certainly bind our hands to seek it in primary legislation and to explain why we have made an exceptional circumstance. I have no objection to trying to reach that position. My challenge is in the absolute. My challenge is in the bit where there is absolutely no position for a Government to make a choice or decision that is so exceptional that something has to be done. It was never any different with the previous Labour Government. In fact, a Secretary of State of that Government did exactly that when push came to shove, and the details around that are even more extreme.

Never did I hear an objection about the overseas security and justice assistance document, which is a public document that has been in circulation since 2014. It is not from the shadow Attorney General or the Liberal Democrat shadow Attorney General. It says absolutely clearly in part 9:

“Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed ‘High Risk’”—

I think we recognise that and agree on it—

“and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance.”

That is the reality.

If this is about making a stand, what has been the Labour party’s stand been since 2014, or since 2000, when it was carrying out these things? I venture that it has not taken that stand because it knows that in government—it aspires to be a Government sooner rather than later—it might have to make those decisions. That is why members of the Committee are seeking not to agree that amendment. We can offer more assurances and scrutiny of that decision, but as the Minister of State for Security, I make the decision to try to help our law enforcement agencies catch these people time and again, and I cannot bind their hands 100%. The United States has made it clear that we will not be able to progress with the treaty if the amendment falls in the legislation in the way it does.

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[Mr Wallace]

The hon. Gentleman is right on that. I cannot speak for the next Government, but the Bill is about our requests to our courts, and this Government would not enter into an agreement with a Government that went around oppressing the press and the media. Despite the fake news, this Government believe that journalism and the press are vital to exposing the truth, corruption and everything else, and we absolutely would do all we could to protect that, both in domestic proceedings and with any international treaties. That is why the Bill is drafted so it is both compliant with European law and has high regard to the first amendment.

[Gavin Newlands]

I was going to speak to amendment 18, but the hon. Member for Torfaen made points broadly similar to those I was going to make. The Minister has addressed some of them, but I have one question. He said he would never countenance handing over information to a country with fewer journalistic safeguards than we have here. If that is the case, why can we not have that safeguard in the Bill, which all these international treaties and agreements will plug into? What is the danger of building that safeguard into the Bill?

[Mr Wallace]

First of all, the Bill is simply the docking station from here to there. It is not about international treaties—when we sign our treaties, we can dock them into the Bill. The principle of allowing a Government to negotiate without their hands narrowly tied about what they can discuss is important.

Secondly, remember that—this probably comes down to how we would draft such a provision—for the purposes of security and so on we sometimes share information with countries that do not have the same high standards as us. If we had a credible threat against aeroplanes with British tourists taking off from third countries, we would not say, “We’re not going to tell you,” and let British tourists get blown out of the sky. Of course we share information with countries, but this is about journalistic information as it applies to investigations, criminal proceedings and so on.

We can do more to provide assurances about journalistic material, notification and journalists in court here, and I can give the Committee the assurance that we would enter into international agreements only where we felt there was high regard for the protection of journalists, but I do not think that safeguard needs to be in the Bill. There would be a challenge about how exactly to draft it. It would also go against the principle of letting the Government of the day be free to hold a negotiation in a way that would achieve the same things, but could address all the different issues. Every country will have things that we have issues with, and I bet that not one country will tick all our boxes across the board. What is my highest priority? Protection of the ECHR, the right to life, journalistic protections—those things will be right up there at the very top, which I think is the best way to do it.

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[Nick Thomas-Symonds]

Amendment 11 is about safeguards on bulk data. Baroness Williams of Trafford spoke on this issue in Grand Committee on 5 September and explained why she felt that an amendment excluding bulk data was unnecessary:

“The Bill has been drafted to require appropriate officers to consider carefully what data they are targeting—which, of course, is not the case with bulk data—and where the information is stored, in order to help with the investigation and prosecution of serious crime, in addition to demonstrating that the data will be of substantial value to the investigation and in the public interest. It feels to me that there are sufficient safeguards in place,”.—[Official Report, House of Lords, 5 September 2018; Vol. 792, c. GC150.]

Put simply, there is a worry that under current safeguards it could be argued that bulk data was of substantial value to any criminal investigation and was in the public interest. This is a simple but discrete point regarding reassurances that bulk data will not be accessed by the powers in the Bill. The Government’s position, as set out in the other place, is that the safeguards there are sufficient to ensure that as the Bill stands, but I am hoping that the Minister will be able to set out and expand in greater detail on the reassurance given in the other place.

[Gavin Newlands]

The amendment tabled by the hon. Member for Torfaen is probably more grammatically correct than mine—my high school English teacher would not be surprised by that—but the principle is exactly the same. Rigorous safeguards are required to ensure that overseas production orders are not open to abuse in terms of requesting access to bulk data.

As someone who suffered—served—on the Investigatory Powers Bill Committee, I used to read the excerpts on the levels of oversight on the various elements of bulk data collection and interception to help to put me to sleep at night; if this is a dry Bill, then the Investigatory Powers Bill, although incredibly important, was even drier. The Scottish National party held out strong opposition to bulk data collection, and it is important to explain why we tabled this amendment: to remind the Minister that we believe that surveillance should be targeted by means of warrants that are focused, specific and based on reasonable suspicion.

Although the Government produced an operational case for bulk powers in between the draft Bill and the Bill as scrutinised in Committee, it was inadequate because it was largely anecdotal. We still firmly believe that such powers do not pass the legal tests of necessity and proportionality, and the additional test that the same results could not be achieved using more proportionate and less intrusive means. Two American Committees that asked to look at these Bills concluded that the same information could be obtained using more proportionate and less intrusive means.

Amendment 21 in my name is straightforward; the hon. Gentleman has already outlined many of the arguments and quoted Baroness Williams, but we agree that applications for bulk data lack a careful consideration of specifically which data is to be targeted. However, the Bill does not contain any express provision requiring orders to be targeted in the manner the Government describe. It is perfectly possible for officers to argue to the Government’s satisfaction that bulk data will be of substantial value to criminal investigations and in the public interest, given that the Government already regularly make arguments about why bulk powers are required in a wide variety of circumstances.

That assumption on the Government’s part does not amount to an adequate safeguard against the potential for bulk data to be requested under an OPO. Any access to routine daily surveillance of communications en masse should be expressly prohibited, and that is what the SNP amendment and the hon. Gentleman’s amendment are both intended to do. I urge the Minister to accept our amendment.

[Mr Wallace]

I hope I can put colleagues’ concerns to rest. The Bill does not provide for the acquisition of bulk data. The only means of acquiring bulk data is provided for in the Investigatory Powers Act 2016.

The test in clause 4 of this Bill clearly sets out that the power to obtain an overseas production order is to make a targeted request for specific data. When applying for an overseas production order, an officer must specify or describe what electronic data is sought, and applications must therefore be precise and specific. Moreover, the Bill provisions have been drafted to require officers to consider carefully what data they are targeting, and to be able to demonstrate that the data would help with the investigation and prosecution of a serious crime.

There are safeguards, also in clause 4, that require the judge to thoroughly test the need for the data sought and to be confident that

“there are reasonable grounds for believing that the person against whom the order is sought has possession or control of all or part of the electronic data specified or described in the application”,

and, in clause 4(5), that the data will be of “substantial value” to an investigation or proceedings and, in subsection (6), that producing the data is “in the public interest”. Those tests make clear that the quest for electronic data using overseas production orders will be targeted, specific and not about large volumes of data relating to a number of unknown persons.

I accept that hon. Members may be referring to bulk personal datasets, but those cannot be required using overseas production orders either. The Investigatory Powers Act fact sheet on bulk personal data, which the hon. Member for Paisley and Renfrewshire North must have remembered from his reading, defines them as

“sets of personal information about a large number of individuals, the majority of whom will not be of any interest to the security and intelligence agencies. The datasets are held on electronic systems for the purpose of analysis by the security and intelligence agencies. Examples of these datasets include the electoral roll, telephone directories and travel-related data.”

The request for a large volume of data on a specific individual, or even a group of individuals such as a criminal gang if every individual is of investigatory concern, does not constitute a bulk personal dataset, as the request is still targeted and specific. For requested data to constitute a bulk personal dataset, it has to include the full bulk dataset, which would include the personal information of large numbers of unknown individuals of no interest to the investigation. Again, under the Bill, officers cannot just request bulk personal data that would not be of substantial value to their investigation.

[Gavin Newlands]

To clarify, on the specific information request that the Minister speaks of, can that information be taken from data that is harvested in bulk?

[Mr Wallace]

Certainly not through this process. Any use or acquisition of bulk data is guided by the Investigatory Powers Act 2016, and those conditions are set out. Someone could not use the Bill to go along to court and say, “Google, can I have data on everyone in Scunthorpe who uses the internet?” That would be a bulk dataset. However, they could go along to the court and say, “I’m investigating somebody called Gavin Newlands, and I would like to see the comms data record and some of his content.” They would make the request to the judge, possibly for more than one set of data—browsing history and mobile phone text history, perhaps. That would be two sets, but they would be specifically targeted at an individual, and would therefore not be a bulk dataset. That is the difference.

Bulk datasets are required under the 2016 Act by our intelligence service and so on, and they are overseen by the Investigatory Powers Commissioner’s Office and the warrantry system, which now has the double lock in many cases. They can also be overseen by Ministers, and to some extent by the Intelligence and Security Committee when investigating operations and how that data was used. I do not know when it will be published—it might be about to be published, or have been published—but the latest annual report by the Investigatory Powers Commissioner is out. Lord Justice Fulford’s report is a detailed analysis, and highlights where mistakes have been made or the law has not been applied.

That is how bulk data is regulated and acquired. The Bill does not apply to that, and none of those requests could involve bulk data applications.

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[Gavin Newlands]

I beg to move amendment 16, in clause 4, page 5, line 16, at end insert—

“(3A) In any case which —

(a) falls within subsection (3)(a), and

(b) relates to data which comprises or includes excluded material (as defined by section 11 of the Police and Criminal Evidence Act 1984) or special procedure material (as defined by section 14 of the Police and Criminal Evidence Act 1984)

the judge may only make an order if satisfied that the relevant set of access conditions in Paragraphs 2 or 3 of Schedule 1 to the Police and Criminal Evidence Act 1984 would be fulfilled if the application had been brought under that Schedule.”

This amendment would that, in the case of excluded or special procedure material, a judge could only make an order if the relevant provisions on access conditions in the Police and Criminal Evidence Act 1984 were complied with.

[The Chair]

With this it will be convenient to discuss amendment 17, in clause 4, page 5, line 17, leave out subsections (4) to (6) and insert—

“(1) In any other case, the judge must be satisfied that there are reasonable grounds for believing that —

(a) the person against whom the order is sought has possession or control of all or part of the electronic data specified or described in the application for the order.

(b) all or part of the electronic data specified or described in the application for the order is likely to be of substantial value (whether or not by itself) to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation.

(c) is in the public interest for all or part of the electronic data specified or described in the application for the order to be produced or, as the case may be, accessed having regard to—

(i) the benefit likely to accrue, if the data is obtained, to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation, and

(ii) the circumstances under which the person against whom the order is sought has possession or control of any of the data.”

This follows on from Amendment 16 and brings the current subsections (4), (5) and (6) together in one subsection.

[Gavin Newlands]

Many of the arguments relating to these amendments have largely been made in the previous set of amendments about PACE. To clarify, from our point of view, journalists are currently given notice under PACE, which allows them to negotiate changes to their application in most cases. These amendments simply replicates what already exists and works well under PACE for the measures in the Bill. They would ensure that the evidential value test mirrors the current law on both terrorism and non-terrorism cases, in reference to the point made by the hon. Member for Bexhill and Battle. They would also ensure that confidential journalistic material is protected as under the current law for domestic applications. As has been said already, the Bill strips out the requirement that the information sought is likely to be relevant evidence and that other means of obtaining it have at least been considered. In a free, democratic society, seizing journalistic material should be a last resort.

Although there is a public interest test in clause 4, it sets a lower threshold than in PACE. Instead of the judge being required to determine whether granting access to information would be in the public interest, as in PACE, the judge must merely be satisfied that there are reasonable grounds to believe that it would be in the public interest. Separately, the police and security services have covert powers, primarily under the Investigatory Powers Act 2016. These powers are exercised through the issuing of a warrant by the Secretary of State and the Investigatory Powers Commissioner. Exceptionally, these powers have been used by the police to identify a source. Most infamously, the police used a journalist’s phone number to identify the police source who had leaked the “plebgate” story to The Sun. As a result of concern from the press about this, some safeguards have been added. However, neither the journalists nor the CSP is given notice of an application for an IPA warrant.

[Nick Thomas-Symonds]

I support what the hon. Gentleman is saying, and there is a later amendment for a notice. Is not the essential issue here that, as the Bill stands, the notice provision is not there for material that might not be confidential but is none the less extremely sensitive? It would be sensible to have the notice provision for that journalistic material as well.

[Gavin Newlands]

I could not agree more. The Investigatory Powers Act—I thought I left it behind a couple of years ago but I am on it again—provides for communications to be intercepted in the course of transmission; for communications data, but not content, to be produced to the police; and for the bulk surveillance of communications, with access to the content of specific communications that are highlighted in this process. Other than that, there is not a general right under the Act to apply for the content of stored communications, so there is no general ability under domestic law to obtain the content of journalistic communications other than through applying for a domestic production order.

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[Gavin Newlands]

The Minister will be surprised to hear that I am not content. He said that the Bill is not designed to replicate PACE. We and others argue that it should. I look behind me, however, and realise that attempting to divide the Committee would be a futile gesture this morning, so I shall not press the amendments. However, if the Government do not bring forward protections that we feel appropriate—

[Mr Wallace]

Given that the hon. Gentleman wants to put the provision in line with POCA, is he saying that he would want to amend the Terrorism Act to put many of the Terrorism Act orders and requests on exactly the same line as the Proceeds of Crime Act 2002? That is a consequence of his view.

[Gavin Newlands]

We are talking about PACE, not POCA—I think that the Minister meant that, so I will answer accordingly. What he outlined is not before us today. If he introduces another Bill to make such changes to legislation, then perhaps on considering it we would argue the same points. That is for another day, but I take his point.

If the Government do not table appropriate amendments to provide protections, I suspect that we shall revisit the matter on Report, but for now I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clauses 5 to 7 ordered to stand part of the Bill.

Clause 8

Inclusion of non-disclosure requirement in order

[Nick Thomas-Symonds]

I beg to move amendment 12, in clause 8, page 8, line 42, at end insert—

“(3A) A judge shall only include a non-disclosure requirement for a period which, in the judge’s opinion, is necessary and proportionate in all the circumstances.”

This amendment would require a judge to include a non-disclosure requirement to cover a period which was only as long as he or she deemed necessary and proportionate.

This is another quite discrete point. Clause 8 empowers a judge making an overseas production order to include a non-disclosure requirement. Subsection (3) provides:

“An overseas production order that includes a non-disclosure requirement must specify or describe when the requirement is to expire.”

However, the clause does not include a necessity and proportionality test. Of course, it is essential that a non-disclosure requirement should not run for longer than reasonably necessary. Whereas under subsection (3) an order with a non-disclosure requirement would certainly have to specify or describe when it would expire, the judge would not be asked to consider the necessity for and proportionality of the order and its duration.

The purpose of the amendment is simply to probe the Minister for an indication of why there is no necessity and proportionality test, and whether he thinks any reassurance can be provided that those factors would be borne in mind in any non-disclosure order, which he will appreciate is a powerful order to make. It has quite profound consequences in these circumstances.

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[Huw Merriman]

I will be brief because the hon. Gentleman said much of what I wish to say, but I wish to endorse it. The amendment would make the clause consistent with the Police and Criminal Evidence Act 1984 and apply it to all journalistic information, rather than just confidential information. I would be pleased if the Minister considered such a provision.

The point has been made—perhaps I can extend it—that such a measure would also save a lot of time and administration. If journalists are given an opportunity to negotiate with more notice, we will not find that matters reach the stage where it is too late. I am led to believe that the procedure works very much on a negotiation basis. On that basis, I think this measure is fair and consistent with domestic matters, and that it will also make for more administrative justice through our court process. I therefore support the sentiments behind the amendment, and I hope that the Minister will consider it.

I say gently to Opposition Members that, to a certain extent, and judging by what the Minister said earlier, we could perhaps have flexibility in this area and make the Bill work better if they do not seek to drive a coach and horses through the Bill with an amendment that is completely outside its scope and could potentially take it to pieces. I make those gentle points to those on both Front Benches.

[Gavin Newlands]

The hon. Member for Torfaen made his points with force and alacrity, and I shall not seek to detain the Committee by repeating them. However, in supporting the hon. Gentleman, I urge the Minister to listen not only to those on the Opposition Benches, but to those on his own Back Benches, to concede the principles of the amendment, and to table Government amendments on Report. If he does not do so, we will.

[Mr Wallace]

The Minister shook himself. Amendments 3, 10 and 20 would provide that when journalistic data is sought as part of an overseas production order, the journalist is put on notice of application. Clause 12(1) of the Bill requires that when confidential journalistic data is sought as part of an overseas production order, the respondent is put on notice. The respondent in this context would be the communication service provider from which law enforcement agencies or prosecutors are seeking content data.

The Government intended to ensure that where an application for an overseas production order was made there was a presumption that any person affected by the order, which would include the journalist themselves, was also put on notice. That was to be included in the relevant court rules, as is the case with domestic production orders, including those made under PACE, the Terrorism Act and POCA.

I am pleased to see that the amendments tabled by the hon. Member for Torfaen recognise that, should all journalists be put on notice when an overseas production order is served in respect of an application that relates to their data, certain exemptions must be in place. It is important that the requirement to provide notice for an overseas production order is not absolute. The difference between the Bill and PACE is that PACE production orders are served directly on the respondent themselves—that is, the journalist. Where PACE requires notice to be given to the respondent, notice has been given to someone who will of course be made aware of the order when it is served, as they are the person who will be required to comply with it. In practice, that will be the person handing over the data to law enforcement agencies.

However, in the Bill the orders are served directly on the CSP that owns and controls the data. Giving notice to a third party—the journalist, who is not required to act on the order—should not stand in the way of issuing an overseas production order where there are good reasons for notice not to be given. I believe that the judge is well placed to determine whether the journalist should be notified, and the circumstances in which it will not be appropriate for that to be the case.

The exemptions set out in amendment 10 are that

“the applicant cannot identify or contact the journalist…it would prejudice the investigation if the journalist were present…it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or…the journalist has waived the opportunity to attend.”

Those exemptions mirror what is currently in place in court rules for domestic production orders through PACE, and they seem a sensible approach. For example, we do not want to oblige law enforcement agencies into notifying an ISIS blogger or journalist when clearly that could prejudice the investigation. Those exemptions are fundamental to retaining a robust and sensible approach to evidence.

I thank Members for their detailed arguments, and for the time that they have taken to consider the protection of journalists. I reiterate that both the notice requirements and the important exceptions that underpin them will be provided for, as they are currently, in court rules. However, I am happy to consider whether they can be provided for in the Bill. I am happy to discuss that with hon. Members as we proceed to Report, if they will withdraw the amendment.

Oral Answers to Questions

Gavin Newlands Excerpts

Monday 3rd December 2018 Commons Chamber

[Caroline Nokes]

Interestingly, one of my first meetings after becoming Immigration Minister was with the Polish ambassador. We recognise that many Polish citizens live in this country, and working through the embassy and with the diaspora community is one of the best ways of reaching out to them. I would be delighted to take up my hon. Friend’s invitation and shall very much look forward to it.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Statistics from the British Medical Association suggest that nearly four in 10 NHS doctors from the EU are blissfully unaware of the Government’s settled status scheme. Does the Department not need drastically to up its game in raising awareness and ensuring that as many of those who need to apply do apply?

[Caroline Nokes]

We are already piloting the settled status scheme, and we have established a significant database of EU nationals with whom we correspond regularly via email through Home Office communications channels. Employers also have an enormous role to play. The hon. Gentleman highlights people working in the NHS, so I am delighted to inform him that NHS trusts are reaching out to their employees and working hand in hand with us through the second phase of piloting the settled status scheme.

Crime (Overseas Production Orders) Bill [Lords]

Gavin Newlands Excerpts

2nd reading: House of Commons
Monday 3rd December 2018 Commons Chamber

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

The Scottish National party welcomes the aims of the Bill, with some caveats, and the Scottish Government believe that investigations and proceedings relating to serious offences in Scotland could benefit from the use of overseas production orders as a quicker and more streamlined process for obtaining electronic data. Notwithstanding the Minister’s point, which I am sure we will discuss further in Committee, we also welcome their lordships’ amendment that provides safeguards against UK service providers being required to produce evidence in cases in which the death penalty may be imposed.

However, we are concerned about the lack of proper safeguards for journalistic material, and I hope that we will be able to strengthen the measures in that important area in Committee. Although I welcome the fact that an order must be for specific, targeted information, the fact that it will in all likelihood be able to access bulk datasets to retrieve that information is disappointing and goes against the strong points made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) during the passage of the Investigatory Powers Act 2016. I shall return to those issues a little later.

The ability to apply for an overseas production order through the domestic courts will make the process for gaining cross-border access to electronic data faster and more reliable than the current processes, which rely on mutual legal assistance treaties. MLAs have been criticised for being too bureaucratic and time-consuming. The UK’s deputy national security adviser on intelligence, security and resilience to 2018, Paddy McGuinness—not the one we are all familiar with—explained in an interview how the current process causes difficulties for UK investigators and prosecutors. He stated:

“It does not make sense that criminals plotting a major drug deal, a murder, a kidnap, trafficking people or sexually abusing a child in the UK can have their communications intercepted if they communicate via text message, but if they use a US company’s services their data should be out of reach of UK law enforcement.”

Those of us who sat through the Committee stage of the Investigatory Powers Bill will never forget the fact that electronic information is becoming increasingly important to the investigation and prosecution of criminal offences, including terrorism. The companies that provide services that generate or store this data, such as Facebook, Twitter and Google, are often located outside our jurisdiction. This puts the data beyond the reach of existing domestic court orders, which either cannot be made when the data is not in or accessible from the UK, or cannot be served extra-territorially. According to Access Now, a digital rights campaign group, there has recently been a “huge growth” in MLA requests to access online records such as subscriber details, email content, metadata and social media from companies such as Google, Facebook, Yahoo and Twitter, which treat the vast majority of their data as being located in California and therefore subject to Californian jurisdiction.

According to the Home Office’s own figures, as of 2016—the figures are now out of date—the UK was party to 40 bilateral MLA agreements. As we have heard, the MLA process can be slow, requiring significant Government-to-Government liaison. This can cause lengthy delays, which can cause problems for investigations and prosecutions. Lord David Anderson, the then independent reviewer of terrorism legislation, has spoken of the severe delays in the process and recommended that the Government should seek to address deficiencies in access to material from overseas service providers and

“take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.”

Detectives investigating serious offences, including murder, have commented that it is taking an “inordinate amount of time” to access evidence from Facebook. Cressida Dick has said that UK police forces have faced a “very protracted procedure” in cases where they have had to access information from organisations such as Facebook. Just recently, she stated:

“I absolutely think that in certain instances...law enforcement in the UK ought to have vital evidence which might bring someone to justice.”

The delays that detectives currently face are unacceptable and it is clear that the system needs to be improved. Lord Anderson spoke in his summing up about the international frameworks, and I would like the Minister to explain further why, Brexit aside, he was not interested in participating in the European protection order.

I move on to the amendment made in the Lords to clause 1, with which we wholeheartedly agree. It provides that in any agreement on overseas production orders and the provision of electronic data under the terms of the Bill, assurances must be obtained from the other country concerned that the death penalty will not be applied. Article 2 of the European convention on human rights—together with protocol 139, to which the UK is a signatory—provides for the total abolition of the death penalty. It is therefore regrettable that the Government tried to resist this amendment in the other place. We—and, I am sure, Labour Members—will resist any Government attempt to draw back from this position in Committee.

While we broadly welcome the Bill, we are concerned about lack of safeguards for journalistic material. We believe that the provisions in the Bill are inadequate in protecting confidential journalistic material. This could threaten the pursuit of journalistic inquiry and undermine the democratic institution of a free press. We are not alone in this, as the BBC has also raised concerns.

Clause 12 provides for a journalist to be given notice of and made a party to an application that pertains to their confidential journalistic material, but this does not apply to non-confidential but none the less sensitive journalistic material, which is at odds with the domestic situation as outlined in the Police and Criminal Evidence Act 1984. The system proposed in the Bill will allow for a significantly reduced opportunity for journalists to engage in arguments about what is, and is not, suitable for disclosure, removing the opportunity for a journalist to make submissions on the issues that this gives rise to in the context of their work. Where on-notice applications are permitted in cases of confidential journalistic material, the Bill is currently silent as to whether or how any submissions will be taken into account by the judge. No further information is outlined on what this process would involve or how much information the journalist would be able to access; nor is it clear that sufficient information would be disclosed to enable them to respond appropriately. Additionally, it is unclear whether any advice or support would be provided to a journalist in those circumstances. Under clause 13, a journalist cannot inform anyone of the application or its contents, and no provision is made for this information to be disclosed to a legal adviser or representative.

The BBC has some further asks. It wants the Bill to require that notice is given in all applications for journalistic material, not just in those involving confidential material; to ensure that the evidential value test mirrors the current law in both terrorism and non-terrorism cases; to ensure that confidential journalistic material is protected, as under the current law for domestic applications; and to ensure that the Secretary of State can enter into reciprocal arrangements only with countries that provide at least as much protection. I suspect that we will be looking at this further in Committee.

The other area that we will be seeking clarity on during the Bill’s later stages is the potential use of bulk datasets. As I have said, the SNP has argued strongly against the retention of bulk data sets, the vast majority of which are harvested from mainly innocent citizens. We argued that it is incumbent on the Government to prove that there is an operational case and that the powers are necessary and to ensure that the safeguards are rigorous. It would therefore be rather remiss of us to allow legislation to pass without the requisite safeguards around the accessing of such data.

To conclude, the MLA treaty system is not working in the modern age. Vast amounts of electronic data goes through Facebook, Twitter and other organisations, and a quicker and more streamlined process for obtaining data is required to investigate serious offences efficiently in the modern world. The ability to apply for an overseas production order through the domestic courts would make the process for getting cross-border access to electronic data faster and more reliable than currently. The Minister was uncharacteristically generous—I mean the Government, not him personally—in working with the Opposition when the Counter-Terrorism and Border Security Bill was in Committee, and I hope that will be repeated with this Bill so that we can move on together.

Offensive Weapons Bill

Gavin Newlands Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 28th November 2018 Commons Chamber

[Victoria Atkins]

It is now my challenge not to talk out the Bill.

It is a pleasure for me to close the Third Reading debate on this important Bill. As my right hon. Friend the Home Secretary said, the measures in it will prevent young people from accessing dangerous weapons such as knives and acid and causing irreparable damage with them, not only to the lives of others but to their own lives.

I am genuinely grateful to all right hon. and hon. Members from all parties—particularly those from Northern Ireland—for their valuable contributions and for the debates that we have had on the Bill. We have had a series of constructive debates, and at times like this the House is at its best, so I thank hon. Friends and colleagues for their contributions.

Particular thanks must go to my hon. Friends who served on the Bill Committee and scrutinised the Bill line by line. It was an absolute pleasure to serve with them in doing that important work. I also thank the Parliamentary Private Secretaries. We do not often get the chance to thank them, but they are the ones who make sure that the political wheels run smoothly. Of course, I also thank the officials, who have done an incredible amount of work on the Bill. [Interruption.] I am being prompted, but I had made a note, so now that I have finished thanking the officials I thank the Whip, the Lord Commissioner of Her Majesty’s Treasury, my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard), because I know which side my bread is buttered. I also thank those in the Whips Office for their hard work on the Bill. Every time that we excited and enthusiastic Ministers put policies and legislation before the House, it is the Whips Office that has to deliver it, and I am extremely grateful for the help I have had on this Bill.

I extend my thanks to the hon. Member for Sheffield, Heeley (Louise Haigh), the right hon. Member for East Ham (Stephen Timms) and the hon. Member for Lewisham, Deptford (Vicky Foxcroft) for their contributions, not only today but in Committee, and for the constant attention that they pay to this really important issue. I hope that the hon. Member for Lewisham, Deptford will keep pressing her case for a debate at tomorrow’s business questions.

I also thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) for his perspective in the debates. It has been a pleasure to work with him and, indeed, the Scottish Government on the Bill.

Let me end this Third Reading debate by drawing the thoughts of the House back to the people whom the Bill is intended to help and protect. I thank every single victim of knife crime and corrosive-substance attacks, as well as every family member who has been affected, sometimes devastatingly, by serious violence. It is for those people that we put the Bill and the other measures in the serious violence strategy at the forefront of our thoughts, as well as for the communities that we all represent, who really do want us to ensure that our laws are up to date and that we have in place the strategy to keep our country safe.

On that note, it is my absolute pleasure to send this Bill elsewhere. I hope that it goes with the best wishes and best intentions not only of every colleague present, but of the victims whom we seek to serve and represent.

Question put and agreed to.

Bill accordingly read the Third time and passed.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

On a point of order, Mr Deputy Speaker. The Speaker has ruled several times that the convention of Members notifying other Members before visiting their constituencies applies to Ministers on official visits. I was deeply disappointed today to find out that the Scottish Secretary and the Prime Minister no less have visited Bridge of Weir in my constituency and that I have yet to receive a notification. The Scottish Secretary found time to tweet about his visit to Bridge of Weir just over two hours ago, to which I replied, asking for notification. He has not complied with that request. Clearly, paragraph 10.10 of the “Ministerial Code” applies in this case.

The sad thing is that the Prime Minister said earlier in answer to my question at Prime Minister’s questions that she knew nothing about Home Energy and Lifestyle Management Systems’ green deal mis-selling, which affects hundreds of people in my constituency. Had I been made aware of the visit, I could have scheduled meetings with the constituents affected, at which she could have learned a lot more about this terrible issue. Can you advise me, Mr Deputy Speaker, what recourse I have when the ministerial code is broken and Ministers fail through their answers in their obligations to Members and this House?

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

It is the convention for any Member going to another Member’s constituency to carry out political business to inform the Member concerned, whether that be the Prime Minister or whoever. Please, do the right thing by colleagues and always inform the Member you are going. You do not have to meet the Member, but at least let us keep with convention. That is the advice that I would give. I am sure that hon. Gentleman will remind the Secretary of State when he catches up with him and has a debrief on his constituency, and I am sure that it will be a great pleasure for him to receive that debriefing.

UK Entry Visas

Gavin Newlands Excerpts

Monday 19th November 2018 Commons Chamber

[Caroline Nokes]

As I have said, it is important that we assess each application on its own merits and on the information provided by individual applicants. It is important that we enable academics to come here, but it is also important that applications be completed in a timely manner and with all the information that we have requested.

The hon. Member for Glasgow North mentioned the future for visitors from the European Union and the reciprocal arrangements for UK travellers going to the EU. On 13 November, the European Commission published a proposal to grant UK citizens visa-free travel to the EU after the UK’s withdrawal. This is conditional on the UK also granting reciprocal and non-discriminatory visa-free travel for all EU member states. We welcome the Commission’s proposal, which reflects the future relationship that we want to have with the rest of the EU. In our proposals, we have made it clear that we want to ensure reciprocal measures with the EU on visa-free travel for tourists and short-term business visitors.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Will the Minister give way?

[Caroline Nokes]

No, I have given way several times this evening.

In conclusion, let me reassure hon. Members that the Government are absolutely committed to ensuring that we have a visa system that balances protecting our borders and national security with ensuring that people are welcome and are able to visit, to study and to work in areas where we need their skills. As we leave the EU, we will remain an open and tolerant country that recognises the valuable contribution migrants make to our society and that welcomes those with the skills and expertise to make our nation better still. We will control immigration so that we continue to attract the most talented to work or study in Britain while managing the process properly so that our immigration system serves the national interest. We are carefully considering a range of options for the future immigration system and will set out proposals very shortly. We will want to ensure that any decisions on our long-term arrangements are based on evidence and on engagement.

Question put and agreed to.

Immigration: DNA Tests

Gavin Newlands Excerpts

1st reading: House of Commons
Thursday 25th October 2018 Commons Chamber

[Sajid Javid]

That is a good question. I do not have the information at hand, but I would be very happy to write to my hon. Friend.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

My constituent Maria, who has dual nationality, has been resident—indeed, a teacher—in the UK for 41 years and has been married to a UK national for as long as I have been alive, but she is unable to obtain a UK passport in her married name, by which she has been known in this country for four decades. She has been told that, if she changes back to her name of 40 years ago, she may be able to obtain a passport. Will the Home Secretary look at her case, and exercise some of the common sense that has been lacking thus far?

[Sajid Javid]

I have listened carefully to what the hon. Gentleman has said about his constituent’s situation. If he sends me further information, I shall be happy to take a look.

Draft Data Retention and Acquistion Regulations 2018

Gavin Newlands Excerpts

Monday 15th October 2018 General Committees

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to serve under your chairmanship, Sir Graham.

My colleague, my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), opposed many of the measures in the Investigatory Powers Act during the Bill Committee and questioned whether many of the proposals were lawful. Now we know the answer, as it relates to what is in the 2016 judgment. Despite having opposed many of the measures in the 2016 Act, we have always said that we could support such measures if the Government proved the proportionality and necessity of the proposals. That has not happened as yet.

The Government’s response to the consultation talks about serious crime and says that data

“is used in 95% of serious and organised crime prosecution cases handled by the Crown Prosecution Service Organised Crime Division, and has been used in every major Security Service counter-terrorism investigation over the last decade.”

That is a fair point—95% is a high percentage—but in talking about the ruling it says that

“Member States can legislate for a regime which permits the targeted retention of communications data for the purpose of fighting serious crime, and the judgment sets out conditions that such legislation must satisfy in order to meet the requirements of EU law.”

I hope the Minister can address this in his conclusion, but in terms of the definition of serious crime, the proposed subsections 60A, 61 and 61A outlined do not sufficiently limit acquisition of communications data for an “applicable crime purpose” to,

“the objective of fighting serious crime”,

which is required in order to comply with the judgment in the case of Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home Department v. Tom Watson and Others. That is because the proposed section 86(2A) defines serious crime so broadly. The definition covers any crime by a body corporate; any offence

“which involves, as an integral part of it, the sending of a communication or a breach of a person’s privacy”;

and any offence that carries a penalty of at least 12 months’ imprisonment for offenders aged 18 or over.

Serious crime will be captured by the definition in proposed new section 86(2A); of course it will. However, the fact that an offence was committed by a body corporate or involves a communication or breach of privacy bears no relation to its seriousness and therefore takes us no further in limiting the acquisition of data to the objective of fighting serious crime. The minimum sentence definition will encompass the vast majority of criminal offences and apply regardless of the circumstances of the offence. In our opinion, the definition should be much narrower, taking into account the particular circumstances of the offence. The definition of serious crime should be met only when a person can reasonably expect to receive a sentence of significantly more than 12 months.

We opposed the 2016 Act’s far-reaching bulk powers to acquire the personal and private data of our constituents; the regulations do not address our concerns. I appreciate that the UK Government have moved on the issue, having been forced to do so by the Watson ruling, but we would have welcomed their taking the opportunity to address our concerns via the regulations. Sadly, they have chosen not to do so. I am keen to hear the Minister’s reply about the definition of serious crime.

Counter-Terrorism and Border Security Bill

Gavin Newlands Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 11th September 2018 Commons Chamber

[Dr Johnson]

Again, I agree profoundly.

The Bill is the result of a thorough review carried out by not just the Government but the security services of how we can best protect our citizens. I believe that we can best protect them by ensuring that the Government, the police and the security services have to hand all the tools that they need to deal with the modern threats that are posed to this country.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I echo the comments made by both the Minister and the hon. Member for Torfaen (Nick Thomas-Symonds) about the anniversary of 9/11 and the Westminster Bridge inquiry, and all who have been affected by those tragic events.

As we have heard from the hon. Member for Sleaford and North Hykeham (Dr Johnson), the first job of any Government, whether in London or in Edinburgh, is to keep their citizens safe. It is clear that we need to take action to update legislation in these difficult times of high-level terrorist threat combined with the constant march of technology and online communication. I fully appreciate the difficulty of keeping legislation current, answering the calls of the police and security services for further powers and maintaining the balance of freedom and civil liberties that we expect and enjoy. Of course, while we are supportive of the Government’s efforts, it is incumbent on any decent Opposition to offer amendments to improve the Bill and ensure that the Government get that balance right.

In Committee, we submitted many amendments that, sadly, the Minister was not wise enough to accept. However, he was wise enough to make some concessions to the Opposition. Amendment 2, for instance, would remove the requirement to view documents or records containing information likely to be useful to terrorists on three or more occasions—the three-click policy. We have some serious concerns about the impact that that may have on innocent individuals who have no interest in, intent to engage in, or wish to encourage terrorist acts. I am glad that the three-click policy has been removed, but I fear that it has simply become a one-click policy.

The previous policy was arbitrary and unworkable, given that the clicks could occur in an unspecified window of time, did not have to relate to the same content on each occasion and did not require any terrorist intent for the offence to be committed. As I did in Committee, I accept the Government’s point that more people now stream material online than download it to a computer or other device, and in that context it is vital that we continue to review our counter-terrorism approach.

The Government had argued in relation to clause 3 that the three-clicks requirement was intended to identify a pattern of behaviour; this amendment runs completely counter to that objective. As had been asked for in Committee, the Minister has included a reasonable excuse defence for this new one-click offence. I would like the Minister to address concerns raised by many, not least my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who say that it is possible that the wording will have the perverse impact of narrowing the reasonable excuse defence available to people charged with the offence, as the courts are likely to reason that, in legislating for a reasonable excuse without including lack of terrorist intent within that excuse, Parliament did not intend for lack of terrorist intent to be an available excuse for this offence. We have to ensure that the clause does not criminalise people who may view these documents with no nefarious intent, such as academics and journalists.

--- Later in debate ---

[Mr Deputy Speaker]

No problem.

[Gavin Newlands]

Thank you, Mr Deputy Speaker. I fully accept the central point that the Minister is making, but he has failed to convince us on the question of proportionality and on the necessity for the new clause. I should also point out that Safaa was not radicalised or groomed by someone who had returned; she was radicalised and groomed by someone overseas. In conclusion, I urge the Minister to commit to this review of the Prevent strategy.

[Sir Edward Davey]

Across the House, we share a determination to tackle terrorism. Seventeen years ago today, I was visiting my grandmother. She was watching the television and she showed me what was happening in the appalling attacks in the United States. We in this House also know about the atrocities that happened just 100 yards away on Westminster Bridge recently. So we all want to ensure that we can do whatever we can to keep our people safe and to fight against the scourge of international terrorism. The question tonight, however, is whether the new clause and the new Government amendments will help to protect us. We have seen a huge number of laws added to the statute book, quite rightly, to help us and our security services in the attack that we are making on terrorism and in the fight back, but I am not yet convinced that this new clause and these amendments will add to the successful work that has been going on.

I say to the Minister that I reach that conclusion reluctantly, but I should like to put forward my arguments, because I am not alone in this. Skilled independent commentators have reached a similar judgment to the one that I have reluctantly reached. My first argument in relation to new clause 2 is that it is not needed. Clause 5, with which we agree, will quite rightly expand extraterritorial jurisdiction. We have seen this before, and clause 5 takes those measures further to ensure that terrorist offences committed abroad can be prosecuted in the United Kingdom. That is sensible stuff. New clause 2 wants to go further, however. Rather than being primarily concerned with terrorist acts abroad, it seeks to criminalise the whole concept of going abroad. In other words, it is not about the actions of a person but about locations.

The Minister, in his usual rational way, tried to reassure us that this was not meant to apply to aid workers or journalists, and I presume that it would not apply to people who wanted to visit sick relatives and who might even risk going to a war-torn country to do so. He referred to proposed new subsection 58B(2), which is found in new clause 2, which offers that defence, but the way I read it, the person charged will have to prove that they had a reasonable excuse for entering a designated area. That is not quite what the Minister said at the Dispatch Box, and although I did not intervene at the time, I do not think that people will be innocent until proven guilty, and that should worry the House.

The other issue is one of common sense. If a terrorist or freedom fighter who has returned is accused of going to such an area, they could no doubt make a reasonable excuse defence. They could say that they were an aid worker, and the Government would then still have to prove that they have evidence that the person was doing something wrong and was not an aid worker. I am not absolutely convinced that the Government have got this right, and I will go on to quote the former independent reviewer of terrorism legislation, David Anderson QC, who supports my view.

--- Later in debate ---

[Robert Neill]

I promise to keep my remarks short. Two important matters have been raised, and I take on board the force of the shadow Minister’s arguments in favour of the value of the European arrest warrant. My right hon. Friend the Security Minister will know that, in the last Parliament, the Justice Committee produced a report on the legal implications of Brexit, which included a strong case for retaining access to the European arrest warrant and its arrangements.

It is important that we stress the value of the European arrest warrant to our crime-fighting arrangements. It is particularly significant, of course, that the National Crime Agency, giving evidence to our Select Committee at the time of the report, stressed the value of the European arrest warrant. All the legal practitioners stressed its importance, and the Minister recognises that the European arrest warrant arrangements are infinitely superior to those that were available under the Extradition Act 1989.

It has sometimes erroneously been said by one or two Members of this House that the European arrest warrant can be used disproportionately, and my right hon. Friend the Minister will know that, since the reforms to the operation of the European arrest warrant back in 2013, that disproportionality has been removed and the UK is actually an overwhelming beneficiary of the proper use of the European arrest warrant.

The Prime Minister made it clear at the beginning of this negotiation process that it is her objective to achieve this, and I am sure my right hon. Friend the Minister will be able to say that whatever the mechanism, whether in the Bill or not, the Government are committed to maintaining access to the EAW and to the rest of the supporting mechanism of criminal justice arrangements, such as data sharing, information sharing and intelligence sharing, the European criminal records information system and other schemes. All those will necessarily be a crucial part of the Government’s negotiating strategy. Whether or not it is mentioned in the Bill is not the point—the Government are reaffirming their commitment.

Legal professional privilege is an important issue to be considered. Unless I am wrong, there are sometimes arrangements for counsel, such as in relation to some of the specialist tribunals dealing with these matters, to be specially cleared and vetted. Perhaps my right hon. Friend the Minister will take that away and consider whether further application of that scheme might offer a sensible and proportionate way forward.

[Gavin Newlands]

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 the hon. Member for Torfaen (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 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 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.

--- Later in debate ---

[Gavin Newlands]

I would like to echo the thanks expressed by the hon. Member for Torfaen (Nick Thomas-Symonds) to our police and security services and all those who put themselves in harm’s way to keep us safe. We owe them a debt of gratitude. I also thank the Clerks in the Public Bill Office for their assistance during the passage of the Bill. This is the first time I have been in charge of a Bill for the Scottish National party. I also thank the individuals and organisations that provided evidence—[Hon. Members: “We can’t hear you.”] Is that okay? Have I got you now? Right, thank you. I also thank the Opposition Front-Bench team for their collegiate approach during the Bill Committee’s deliberations.

[Mr Mark Francois (Rayleigh and Wickford) (Con)]

I do not agree with it, but I want to hear it.

[Gavin Newlands]

I appreciate that.

The Minister himself, despite the late tabling of new clause 2, has been open to improvements suggested by the Opposition, and I thank him also.

The SNP supports the Government in their attempt to modernise this crucially important legislation, and we appreciate the need to combat the constantly evolving threat from international terrorism in the modern digital world, but we must be extremely careful about how this is executed. We are fully aware of the challenges that we face from increasingly sophisticated criminals and terrorists, and we are in favour of giving law enforcement agencies and the security and intelligence agencies the powers they require to keep our communities safe, but those powers must be subject to stringent checks and safeguards if we are to maintain the balance of security and civil liberties that we currently enjoy.

While stressing that we support the Government’s aims, I remind the Minister that they have awarded themselves, and the police and security services, an enormous amount of power in the last three years, not only—potentially—in this Bill, but in the Investigatory Powers Act 2016 and the Immigration Act 2016, to name but two. Sadly, more often than not the Government have simply not got the balance right between civil liberties and the extension of intrusive powers.

If Scotland were independent—and that time is coming—we would no doubt be drafting and enacting more legislation to deal with the increased threat of terrorism. Luckily, that legislation would not be drafted by me, but I cannot help wondering how similar our measures would be. I should like to think—in fact, I am positive—that we would ensure that our Ministers, our police and our security services had the necessary powers, without impinging too much on civil liberties. That, I am sorry to say, often seems to be an afterthought in the case of this Government.

Draft Investigatory Powers (Codes of Practice and miscellaneous amendments) order 2018

Gavin Newlands Excerpts

Monday 16th July 2018 General Committees

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to see you in the Chair, Mr Bailey.

I should say at the outset that it is not my intention to divide the Committee. However, during the rather arduous scrutiny of the Investigatory Powers Bill a couple of years ago, my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), and, to be fair, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), scrutinised the Bill in some detail and raised concerns time and again about the retention of data being far too widely drawn in the Bill, with far too few safeguards. We said during the passage of the Bill that these powers would not survive legal challenge. The Government thought differently and ploughed on regardless.

It is a shame that the Government’s failings on investigatory powers have been admitted only after the matter was taken to the European Court of Justice. It is to be welcomed, however, that there will be a cut in the number of cases, through increased protections, in which communications data can be accessed by the authority. We have to remember that the Court ruled that EU law precludes EU countries from passing law that

“provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication”

in order to help fight crime. The Court also said that EU law does permit national law makers to, “as a preventive measure,” require traffic and location data to be retained on a targeted basis, but only where the objective of the data retention rules is to fight “serious crime”.

The Scottish National party has always accepted that security powers are extremely important and must always be shown to be necessary, proportionate and in accordance with the law. In our view, the Government have a way to go in making other aspects of the investigative powers proportionate and lawful. As this instrument mainly tightens provisions, we will not oppose it.

Counter-Terrorism and Border Security Bill (Seventh sitting)

Gavin Newlands Excerpts

Tuesday 10th July 2018 Public Bill Committees

[The Chair]

Good morning. The selection list for today’s sitting is available in the Committee Room. Copies of written evidence the Committee has already received are also here. I should just mention that there has been, with the agreement of the Chair, a slight change to the groupings, and amendment 43 to schedule 3 has been included with amendments 24, 25 and 42.

Schedule 3

Border Security

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I beg to move amendment 24, in schedule 3, page 46, line 37, at end insert,

“provided that the person is at all times able to consult with a solicitor in private.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 43, in schedule 3, page 46, line 37, at end insert—

“(7A) The examining officer may require that the detainee consult only a solicitor who has been approved by the Law Society for providing advice to persons detained under the provisions of this schedule.”

Amendment 25, in schedule 3, page 47, line 29, leave out paragraph 26.

This amendment would delete provisions in the Bill which restrict access to a lawyer for those detained under Schedule 3 for the purpose of assessing whether they are or have been engaged in hostile activity.

Amendment 42, in schedule 3, page 47, line 31, leave out “and hearing” and insert “but not hearing”.

[Gavin Newlands]

It is a pleasure to see you in the Chair again this morning, Mrs Main.

We have already had a wide-ranging debate on schedule 3, with more to come. Amendments 24 and 25 would delete provisions in the Bill that restrict access to a lawyer for those detained under schedule 3. Specifically, they would retain the right of an individual to be able to consult their legal representative in private, away from a relevant officer.

As I mentioned in my previous contribution, being able to speak with a legal representative in private is a fundamental human right that should not be infringed. In oral evidence, Michael Clancy of the Law Society of Scotland spoke about the fundamental importance of this:

“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 their 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.]

The Law Society of England and Wales also raised concerns, suggesting that the proposals risk the excellent reputation across the world of the UK justice systems—I add the plural to Richard Atkinson’s words. In oral evidence—an aspect of this quote has been raised before—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.]

For a full house of views on that, Abigail Bright of the Criminal Bar Association said:

“That is deeply concerning and wholly new. ‘Radical’ is a well-chosen word here; it is a radical departure from anything known to English law. My view, and the view of the specialist Bar associations, is that it is unnecessary and undue, and that it would not in any way be a serious improvement on the powers available to law enforcement agents.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 58, Q129.]

In my view, if the schedule is left unamended, it risks infringing a basic, fundamental right that has been in place for hundreds of years, as the legal profession says. It is unnecessary and undue, and it would not be a serious improvement on the powers available to law enforcement. Access to a lawyer—fundamental access to justice—is something we should not compromise on.

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship, Mrs Main.

We had a wide-ranging debate on this issue in Committee last week. I want to raise the specific issues in amendments 42 and 43 and to support what the hon. Member for Paisley and Renfrewshire North said about the importance of legal professional privilege. It is obviously a cornerstone of our criminal justice—indeed, our justice—system and is admired around the world as a gold standard, as the hon. Gentleman pointed out.

However, in the cases we are talking about, it is not as if we must have a trade-off between two purist positions. In my view, there is a simple, practical solution to the problem before us, which should satisfy the Government’s concerns about people who are detained passing on messages to others through a lawyer who either acts knowingly or is not in the know. I responded to the Minister on that point last week.

Legal professional privilege is circumscribed by the codes of conduct that govern lawyers in our country. No lawyer can be a party to an illegal act, and they have, of course, to be very mindful of money laundering regulations. The practical solution I suggest in amendment 43 is that the Law Society approve solicitors to provide advice to persons detained. Such solicitors would be subject to the professional code of conduct, which would plug the gap in the legislation as it stands, with people simply not having access to a lawyer at all.

I put that suggestion to Richard Atkinson, the co-chair of the Law Society’s criminal law committee, in the 26 June evidence session. I said:

“From what you are saying, there is a practical solution for any legitimate concerns there may be. There is also a situation—in a police station, for example—where you can have a duty solicitor or lawyer made available. That person could be someone of particular standing and reputation in whom we could all have faith and whom we would not have those concerns about.”

Richard Atkinson replied, “Absolutely. Again, code H”—he was referring to the Police and Criminal Evidence Act 1984—

“allows exactly for that. If there are specific concerns about a lawyer, the duty lawyer or solicitor can be called to come and advise. That maintains privilege and maintains the defendant’s access to advice at that point.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 27, Q56.]

This proposal would not involve a large number of cases. The Minister will recall his own questions to Richard Atkinson, when he asked whether a lawyer would be required every single time there was a stop, which clearly is not the point. The provisions apply only when we get to the questioning stage, as set out in the evidence.

The right to private legal advice can be maintained if we adopt the idea that solicitors approved by the Law Society can provide that advice. The arguments that the Minister made against the proposal last week—that those lawyers would somehow inadvertently hand on information—are incredible. These lawyers would be subject to training in this area and would have to act with the highest professional standards. Nor would it be a restriction on the right to confidential legal advice to have a limited number of, say, panel lawyers who are able to provide it.

I urge the Minister to go back and look at this proposal for Report stage. The Government’s concerns can be allayed if they put in place a practical scheme that would be limited only in terms of the number of people who would have to deal with it but that would have the crucial effect of maintaining the very important principle of legal professional privilege, upon which our criminal justice system is based.

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[Mr Wallace]

Let me get to the next bit, which is also about the right not to be overheard—for legal privilege to be protected—and the idea that that is somehow absolute. It has never been absolute. The justification for that not being absolute was that the last Labour Government introduced paragraph 9 of schedule 8 to the Terrorism Act 2000, which says:

“A direction under this paragraph may provide that a detained person who wishes to exercise the right…may consult a solicitor only in the sight and hearing of a qualified officer.”

The principle of, effectively, allowing the law enforcement agencies to do that, subject to chief officer authorisation, is not a new precedent that we are setting, as the hon. Member for Paisley and Renfrewshire North seems to suggest. It has existed for 18 years. The last Labour Government viewed that as important enough for it to happen when it applies to TACT offenders in a police station setting, never mind in a schedule setting. That is where that policy idea came from. It has not been rustled up in the last year. It has been around for 18 years.

If I was arrested tomorrow morning and taken to a police station, rather than the border, and I wanted to consult a solicitor, I would find that, if there were reasonable grounds—or stronger than that—and the chief officer gave permission, that discussion could, on a very few occasions, be listened to. It is not at all about “inadvertently”; it is about the few individuals, who, as I witnessed in the early ’90s, exploit that relationship for the simple purpose of tipping off or undermining or disposing of evidence. Under those circumstances, the power has already existed.

I bring the hon. Member for Torfaen back to the point of this schedule stop. What is this stop really about? The verbal evidence given is not admissible in court, and this is not the same as sitting in a police station. This is about effectively establishing the intent, the identity and the basic details at the time of a border stop.

Given that we are a free and open society, it is at our border that we are most vulnerable. Once someone is within our community, because of the way we live our lives, quite rightly, they have free movement and free everything. I am delighted that those are our values, but if we are to keep that special, and maintain that freedom within the United Kingdom, we have to be able to give that power for the simple purpose of establishing the intent—the who and the what—at our border.

The new schedule applies to hostile state activities and to people who come here to attack and undermine the very state that allows us to enjoy those freedoms. That does not put in peril the strength of our justice system and the right to a lawyer and to a fair trial—I am a Scot, and we take a slightly different philosophical view on the right to a jury, which is a very Norman thing in England and Wales. That is why I believe that these measures are proportionate and necessary to keep us safe, and I do not believe that going back on the principle established 18 years ago would keep us safe; in fact, we would be unpicking well-established law.

Funnily enough, in my two years as Security Minister, I have had lots of representations on the use of schedule 7 and whether people have a right to compensation, whether the schedule is abused, and whether we should be cleverer and faster in using it, so it does not impinge on people’s journeys. I have not yet had a representation in those two years to ask for paragraph 9 of schedule 8 to the Terrorism Act 2000 to be undone. Therefore, the Government will not accept these amendments and will leave the schedule to stand, for the purpose of screening the who, what, where and when at our border and of taking into account the large amounts of data some of these individuals carry on their way into this country.

[Gavin Newlands]

In the debate on the previous group of amendments, I indicated that I would keep my powder dry until this group. I have listened carefully to the Minister, but in making the point that each suspect should be able to consult a lawyer of their choosing, he seems to be arguing against some of the provisions in his own Bill. For that reason, I wish to press my amendment.

Question put, That the amendment be made.

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[Nick Thomas-Symonds]

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.

[Gavin Newlands]

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.