Investigatory Powers Bill

Debate between Joanna Cherry and Andrew Murrison

Tuesday 1st November 2016 Commons Chamber

[Joanna Cherry]

I agree that the legislation is essential. The SNP believes that it is important to give the security services and, indeed, law enforcement necessary and proportionate powers. I welcome, as I have said repeatedly in this House, the attempt in the Bill to codify the law and to provide an enhanced oversight regime. However, I will not demur from the position that I have held throughout, which is that in some respects the Bill does not provide sufficient safeguards.

The SNP and many other stakeholders mentioned by the shadow Home Secretary remain very concerned about allowing significantly unfettered collection of, and access to, communications data including internet connection records. We also oppose far-reaching bulk powers to acquire the personal and private data of our constituents when a proper case for the necessity and proportionality of those powers has yet to be made.

I consider it a matter of deep regret that the review of bulk powers by David Anderson, QC reported not to this House, but to the House of Lords. This House—the democratically elected and accountable Chamber—has not had an opportunity to debate that review. It is an excellent review as far as it goes, and I would not dare to undermine much of what it says. It is what is missing from the review that is important. It makes out a case that bulk powers can be of use to the state, but it does not address the necessity and proportionality of those powers. Those matters are yet to be addressed, and we will not get to debate them here. As the shadow Home Secretary said, they are very likely to be the subject of litigation in the future, and they are likely to be addressed by courts in the United Kingdom and in Europe—for as long as we have the sense to remain part of those European systems.

[Dr Murrison]

On the question of proportionality, does the hon. and learned Lady agree that the proposals must be put into some sort of context? As Lord Rooker pointed out yesterday, the problem is that we have a commercial sector with a large number of commercial providers who are busy harvesting data all the time in order to advertise things to us. Since the powers that the state is taking to itself are similar in some respects, it is important to bear that in mind when trying to ensure that we have some level of proportionality.

[Joanna Cherry]

I agree with the hon. Gentleman that at some point the House needs to look at the mass harvesting of data by private companies, but there is a big difference between a private company harvesting personal data and the state doing so. A private company does not have the coercive power of the state, and that is the crucial reason why the Bill must be scrutinised so carefully.

It is a matter of the deepest regret that the review on bulk powers did not report to this House and has not been scrutinised in this House. I would not wish the SNP’s position on the Bill to be portrayed as irresponsible, because it is not. It is an attempt to make sure that the Bill fulfils its purpose while remaining lawful and proportionate. As has been alluded to during this debate, the Scottish Parliament has given legislative consent to the consolidating and enhanced safeguard provisions in the Bill, so far as those matters fall within its legislative competence. If Members care to read the terms of the legislative consent motion, which I do not believe was opposed by anyone in the Scottish Parliament, they will see that concern was reiterated about the potential impingement on civil liberties by internet connection record collection and bulk data collection.

I want to correct something that the Minister said about Liberty. Liberty has scrutinised the Bill in detail and provided detailed briefings—one might not agree with them all—on every aspect of the Bill. It is unfair to say that Liberty is mistaken about anything. Liberty is quite correct to say that, in reality, all that the double-lock system means is that a judge will check that the correct procedures have been followed; the Minister will still make the initial decision.

In previous debates, I have said that I would not use the phrase “mass surveillance”, because it is a bit too broad, and I have instead talked about suspicionless surveillance. That is the problem with the Bill: SNP Members and many others with concerns about the Bill believe that surveillance should be targeted and based on suspicion. There is a deal too much suspicionless surveillance in the Bill, even as amended.

Rights of EU Nationals

Debate between Joanna Cherry and Andrew Murrison

Wednesday 19th October 2016 Commons Chamber

[Mr Nuttall]

rose—

[Dr Andrew Murrison (South West Wiltshire) (Con)]

rose—

[Joanna Cherry]

I intend to make some progress.

I will say a little about the valuable contribution that EU migrants make to our society across the UK. As we all know, about 3 million EU migrants live in the United Kingdom, about 173,000 of them in Scotland. Data produced during the EU referendum show that, contrary to popular myth, EU migrants to the UK make a net contribution to the economy. Indeed, the EU citizens who come to live and work in Scotland are critical to key sectors of our economy. More than 12% of the people who work in the agricultural sector in Scotland are EU migrants, and 11% of people who work in our important food, fish and meat processing sector are EU citizens. There are two major universities in my constituency, Edinburgh Napier University and Heriot-Watt; they would be gravely affected by a decrease in the number of EU nationals choosing to study, research and teach in Scotland.

--- Later in debate ---

[Joanna Cherry]

I cannot speak for the hon. Gentleman’s constituents or the mail that he receives, but SNP Members are all receiving a considerable weight of mail and emails from concerned EU citizens. I am sure that Members on the Opposition Benches will speak to the same later in the debate. This is not fearmongering—and believe you me, Madam Deputy Speaker, we in the SNP are experts on fearmongering having been on the receiving end of it during the 2014 referendum.

[Dr Murrison]

rose—

[Joanna Cherry]

I am not going to give way; I will make some progress. This is a valid issue about which many constituents are very concerned. We would be failing in our responsibilities if we did not raise it, no matter how embarrassing it is for those on the Government Benches.

I want to get back to the contribution that migrants make to our economy. The hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) has already mentioned the NHS. As he said, 6% of doctors in Wales are EU migrants; it is just under 7% of doctors in Scotland. The British Medical Association and the Scottish Government say that 5% of the total NHS workforce were born in other EU countries. Put bluntly, our NHS would struggle to cope without them.

There are very valid concerns that pushing EU nationals to leave because of uncertainty about their future would have a devastating impact on the NHS, the hospitality and agriculture sectors, higher education and science, all of which rely heavily on labour from the EU. I also share the concerns raised by the Trades Union Congress, which has said that the longer we leave EU workers uncertain about their future, the greater the likelihood that they will leave, creating staffing shortages that will particularly negatively affect our public services. That will serve only to increase the concerns felt by those who voted to leave the EU in order to increase resources for public services—and there is not much sign of that happening, is there?

--- Later in debate ---

[Joanna Cherry]

The motion is as framed advisedly. If Conservative Members felt it could have been improved, it was open to them to bring forward an amendment. We would have looked at it carefully, as we always do. I am now going to make a little bit more progress. I am conscious that I have taken a lot of interventions and I want to wind up fairly soon.

I want to say a little bit about what the Scottish Government have been doing since the referendum. Members will recall that immediately after the referendum result the First Minister moved very quickly to give EU citizens in Scotland reassurance that

“the Scottish Government is pursuing every possible option to protect Scotland’s position in Europe and, by extension, the interests of the people from across the European Union who live here.”

Indeed, at an event unprecedented in my constituency in August, the First Minister held an open question and answer session with EU nationals. I can tell Conservative Members that it was extremely well attended by EU nationals living and working in my constituency and in other parts of Scotland. They had many concerns and questions for the First Minister about their status in the United Kingdom following the vote. At our conference last weekend, the SNP passed a motion condemning xenophobia and prejudice in all its forms, making it very clear, in no uncertain terms, that international citizens are welcome in Scotland. In her closing address to the SNP conference in Glasgow on Saturday, the First Minister talked of the “uniting vision” of

“an inclusive, prosperous, socially just, open, welcoming and outward-looking country”

and contrasted that with the xenophobic rhetoric of the UK Government. The difference between the SNP conference and the Tory conference could not be starker.

I am very well aware that the desire for inclusivity, openness and being welcome and outward-looking is not the preserve of the SNP and the Scots. It is shared by many people across these islands. It is about time that Conservative Members lived up to the good aspects of British tradition and the good aspects of our reputation abroad, and stopped undermining them by encouraging the sort of xenophobia we have seen in recent months as a result of some of their rhetoric. [Interruption.] I am absolutely delighted to get such a reaction.

[Dr Murrison]

I am very grateful to the hon. and learned Lady for giving way. Nobody is suggesting that anybody is going to be ejected from the United Kingdom. She is simply setting hares running. Does she understand and admit that there is a layer of complexity that she has completely ignored? If she is giving rights to people, which I think we would all accept, what effective date is she going to choose? What then happens when people go outside the UK and seek to return? All these things are also relevant to British nationals, on behalf of whom the Government have to negotiate.

[Joanna Cherry]

I must admit to deriving some satisfaction from the fact that my speech is touching such a raw nerve with those on the Government Benches. What I would say to Conservative Members is that actions and rhetoric have consequences, and these are the consequences of some of their actions and rhetoric.

My right hon. Friend the Member for Gordon (Alex Salmond) has often said that Scotland’s problem is not immigration but emigration. We in Scotland would like immigration powers to be granted to Scotland in recognition of the differing needs across the United Kingdom, and the fact that in Scotland we require immigrants to help to boost our economy and skills, particularly in remote areas. Both Australia and Canada pursue sub-national immigration policies that respond to the needs of skills and expertise across the regions within their states. Now is the chance for the United Kingdom to do likewise, but I shan’t hold my breath.

To be fair, even many leavers during the campaign, said:

“there will be no change for EU citizens already lawfully resident in the UK.”

Speaking on Radio 4, the right hon. Member for Birmingham, Edgbaston (Ms Stuart), who co-chaired the campaign to leave the EU, said:

“I think it would be good for the British Government to take the initiative, say that we will protect EU citizens’ rights, and then expect the same for UK citizens in the rest of the EU to be similarly protected.”

So there we have the answer to the question raised by Government Members. She went on to say:

“One of the duties of politicians is to be humane and when we deal with people’s lives, I think to show that we are open, we are a welcoming country, that we simply decided to leave a political institution called the European Union, that doesn’t mean we are ignoring people’s rights.”

It is not often in recent months that I have found myself in agreement with the right hon. Lady, but on this occasion she is right: if the British Government do the right thing, take the initiative and say that they will protect EU citizens’ right, they could hope for a reciprocal gesture towards British citizens abroad, about whom we are all so concerned. It is a question of basic humanity—human beings should not be used as bargaining counters.

To conclude, I do not believe that this failure to reassure the EU nationals living in the United Kingdom represents the best traditions of these islands. Much of what underlies that failure and, I believe, the rise in hate crime, is misinformation put about during the leave campaign. That is due also to a failure of leadership by the previous Prime Minister and many in the remain campaign to articulate the truth about the benefits that migration and EU migration bring to the UK. Sadly, that failure of leadership is being perpetuated by this new Government, as they spin rudderless in the tailwind of Brexit.

Now is the time to put things right, so today the SNP—with the support of others, for which we are very grateful—calls on the Government to provide a cast-iron guarantee for EU citizens who have made the UK their home; to reject and to continue to work on tackling the rise of xenophobia, which has been confirmed by the Home Office for England and Wales; to recognise that the UK-wide blanket approach to immigration policy is not working and disregards the national, regional and demographic differences across the UK; and, most of all, to reassure all those who choose to make Scotland and the UK their home, that their rights will be honoured, that they are welcome to remain here and that their vital contributions are valued by all of us. Until that commitment is given, people will have the sort of worry and uncertainty that leads them to flock to events such as that organised by the First Minister in Edinburgh, and to write emails to all of us on a regular basis.

Investigatory Powers Bill

Debate between Joanna Cherry and Andrew Murrison

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

[Joanna Cherry]

The Scottish National party has tabled a significant number of amendments to parts 2 and 5, and chapter 1 of part 9, which are under discussion, but given the constraints of time I will focus my fire on only a few of them, and mainly on part 2 and the system of judicial warrantry.

The Government have put their new double-lock system of warrantry at the heart of their arguments that there are sufficient safeguards in the Bill. In the SNP, we believe that the system of warrantry is too limited in scope and seriously deficient. We have tabled extensive amendments to extend the system of judicial warrantry beyond part 2, so that it would cover warrants to obtain, retain and examine communications data and police hacking warrants. We think the nature and scope of those warrants, and the grounds on which they are granted, are very important.

Amendments 267, 268, 272 and 306 to clause 15 deal with the scope of warrants. The problem with clause 15 as currently drafted is that it permits warrants to be issued in respect of people whose names are not known or knowable when the warrant is sought. This is confirmed by clause 27, which provides that a thematic warrant must describe the relevant purpose or activity and that it must

“name or describe as many of those persons as is reasonably practicable”.

Our amendments would retain the capacity of a single warrant to permit the interception of multiple individuals, but require an identifiable subject matter or premises to be provided. We have tabled associated amendments to clause 27. Taken together, they would narrow the current provisions, which effectively permit a limitless number of unidentified individuals to have their communications intercepted.

It is not just the SNP who are concerned about the scope of the thematic warrants. We heard evidence in Committee from Sir Stanley Burnton, the Interception of Communications Commissioner, and from Lord Judge, the chief surveillance commissioner. Both expressed detailed concerns about the breadth of clause 15 as currently drafted. They said it was too wide and needed to be more focused. David Anderson QC, although in favour of thematic warrants, said that clause 15 as currently drafted is “considerably more permissive” than he had envisaged. There we have three very distinguished experts working in this field underlining the necessity of the amendments.

That is a real concern, because it takes us back to our old friend, or in our case our old enemy, bulk powers. If we create thematic warrants, communications intercepted under bulk powers can be trawled through thematically to look for groups of people sharing a common purpose or carrying out a particular activity. One difficulty with that is that it provides for an open-ended warrant that could encompass many hundreds or thousands of people. That is just not right. It is suspicionless interference. It is not targeted and it is not focused. I urge hon. Members on both sides of the House, if they are concerned about supporting an SNP amendment, to comfort themselves with the fact that it is an amendment the necessity of which has been underlined by persons as distinguished as the Interception of Communications Commissioner, the Chief Surveillance Commissioner and the independent reviewer of terrorism.

I now turn to the grounds, set out in clause 18, on which warrants may be granted, and to SNP amendments 212 and 213. The purpose of the amendments is to remove the economic wellbeing of the UK as a separate purpose for granting a warrant and to require that grounds for interception are tied to a threshold of reasonable suspicion of criminal behaviour. We have tabled similar amendments to the grounds for seeking warrants in relation to communications data under parts 3 and 4, and hacking under part 5. If these amendments are not allowed, people simply will not be able to predict when surveillance powers may be used against them, because the discretion granted to the Secretary of State is so broad as to be arbitrary.

The Joint Committee on the draft Bill recommended that the Bill include a definition of national security, which, of course, is the first ground. I call on the Government, not for the first time, to produce an amendment that defines national security. The Bill is sprinkled liberally with the phrase “national security”. The Government need to tell us what they mean by that phrase, so I call on them to define it. This is not just theoretical or, as the hon. Member for North Dorset (Simon Hoare) called it, merely a law faculty debate; it is a serious issue about language being precise so that there can be some predictability. In the past, the courts have responded with considerable deference to Government claims of national security; they view them not so much as matters of law but as Executive-led policy judgments. As a legal test, therefore, “national security”, on its own, is meaningless unless the Government attempt to tell us what they mean by it.

[Dr Murrison]

I am listening with great interest to the hon. and learned Lady. She will be aware that the Joint Committee on the National Security Strategy has long been trying to define “national security” but has failed to come up with an answer. Will she not accept that the term must necessarily remain loose?

[Joanna Cherry]

No, I do not accept that. As I say, the phrase is sprinkled throughout the Bill to justify very broad and intrusive powers, and it is incumbent on the Government to explain what they mean by it. We have heard powerful speeches and interventions from Labour Members about how these loose phrases can sometimes be misinterpreted to enable individuals who have done absolutely nothing wrong, such as trade unionists going about their lawful business, to have their livelihoods and communications interfered with. So if the Government want these powers, they have to define the grounds on which they can be exercised.

That takes me to economic wellbeing. The Joint Committee on the Bill said that economic wellbeing should be defined, but the Intelligence and Security Committee went further and said that it should be subsumed within the national security definition and that otherwise it was “unnecessarily confusing and complicated”. It was basically saying that if economic harm to the wellbeing of the UK was so serious that it amounted to a threat to national security, it would be covered by clause 18(2)(a). That was the point the ISC made. We do not need a separate category.