Serious Fraud Office

Robert Buckland Excerpts

Tuesday 18th April 2017 Westminster Hall

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve under your chairmanship, Mr Paisley. I congratulate the hon. Member for East Renfrewshire (Kirsten Oswald) on securing this debate. I noted the remarks she made in a debate on an associated issue relating to the SFO in February. I pay tribute to her and to colleagues on the all-party parliamentary group for raising this undoubtedly very serious issue, which has caused real loss for those who invested in the Connaught scheme.

The hon. Lady outlined her concerns clearly, and said that she has already raised them with the FCA. She will appreciate that the Financial Conduct Authority is a separate, independent body, and I am not empowered to comment on its investigation, which is still ongoing and is extremely complex. The fact that many investors are still out of pocket is fully appreciated, and it is understood that certainty is needed about whether they can expect to receive compensation. The FCA will update them as soon as it can, and it is encouraging investors to consider what they can do in the meantime to protect their position.

The hon. Lady raised wider issues about, first, the status and funding of the SFO, and, secondly, its relationship with other agencies that help to police economic crime, misconduct and the sort of activity that, frankly, damages the reputation of financial services not only in the City of London but in the whole of the United Kingdom. I assure her that the Government take this matter extremely seriously, because it pertains not just to economic reputation but to our national security. That is why it was welcome that the Home Secretary announced last year that wider work will be carried out through the Cabinet Office to examine our response to economic crime more broadly. As part of that examination, we will look at the effectiveness of our organisational framework, and the capabilities, resources and powers available to the organisations that tackle economic crime, so it embraces fundamental questions of the type that the hon. Lady asked.

The SFO does vital work in tackling the most serious instances of fraud, bribery and corruption. It is an important part of the UK’s enforcement regime. It is right that questions continue to be asked about the adequacy of the way in which we deal with economic crime and how we can improve it. The hon. Lady was right to ask questions about LIBOR and the sort of activity that took place at the time of the economic crash in 2008. Although it is welcome that a number of people who were involved in manipulating the LIBOR regime have been prosecuted and, indeed, convicted, I agree that more needs to be done. It is acutely incumbent on the Government and the enforcement agencies to ask those questions at all times.

The hon. Lady rightly raised the issue of funding, about which we had a debate in this House not long ago. I assure her that the director of the Serious Fraud Office, David Green, who has been doing excellent work since his appointment in 2012, is satisfied that the funding his office receives is sufficient to carry out investigations and prosecutions. Let us not forget that the blockbuster funding allowed by the Treasury gives the SFO the flexibility and fleetness of foot it needs to mount special and unexpected investigations—it is, of course, very much a demand-led office.

I am glad to report that, in recent months, the SFO has yielded hundreds of millions of pounds for the Treasury in the form of new deferred prosecution agreements—most notably with Rolls-Royce and most recently with Tesco, to name but two. I am impressed by and pleased with the progress of the SFO since the appointment of David Green and with how it has focused on the criteria that it has to apply under the governing statute that set it up some 30 years ago.

Briefly, to remind ourselves, the SFO is a relatively small, specialised department that is allowed by law to investigate and, where appropriate, to prosecute cases of serious or complex fraud, which includes cases of domestic or overseas bribery and corruption. Such fraud calls for a multidisciplinary approach and recourse to the legislative powers available to the SFO.

The criteria for case acceptance are strict. The SFO will consider all the circumstances of a case, which include: cases that undermine the United Kingdom’s commercial or financial reputation in general, and the City of London’s in particular; cases in which the actual or potential loss involved is high; cases in which the actual or potential harm is significant; cases with a very significant public interest element; and, finally, new species of fraud. All frauds are serious, causing real detriment to those who fall victim to them, but the criteria rightly set a high threshold that has to be applied by the SFO.

On the way in which the SFO works with other agencies, I reassure the hon. Lady that it has constructive strategic and working relationships with all its law enforcement and regulatory partners. It engages with other agencies whenever relevant throughout the life of a case, right from the development of that case through to its investigation, prosecution and recovery of the proceeds of crime.

Those relationships are supported continually through attendance at various cross-Government working groups and regular bilateral liaison meetings, whether at the senior or operational level, and they are underpinned by memorandums of understanding or operational protocols where necessary. Such structures have evolved over time and in particular since the establishment in 2013 of the National Crime Agency’s economic crime command. The NCA plays a co-ordinating role in a structure of governance that applies across all areas of economic crime, and the SFO plays its part in all the relevant groups to form that collective response.

There are agreed roles and responsibilities, and the SFO investigates a particular species of serious fraud, bribery and corruption cases. At all stages of the assessment, however, reports of economic crime received by the SFO are under review to establish whether the matter falls within its jurisdiction and remit. If the matter is deemed not to reach that high threshold, it is closed and, if appropriate, consideration is given as to whether another law enforcement or regulatory partner may be better placed to develop the information.

Such decisions are made with a clear understanding of the remits of the other law enforcement agencies. The decisions are underpinned by frequent meetings between members of the SFO’s intelligence unit and their counterparts in the NCA, the Financial Conduct Authority and the other law enforcement and regulatory agencies. They meet in order to avoid the inevitable duplication or the conflict that might occur between reports. It will therefore be clear that only one agency is in the lead on any given issue.

We have to appreciate that many referrers—members of the public or others—will approach several agencies with the same matter, so each other’s expertise and capabilities are needed to make real progress with an investigation and to avoid, for want of a better phrase, reinvention of the wheel. That is essential if we are to make proper progress.

In particular, regular meetings are held between members of the foreign bribery clearing house—“foreign” means the involvement of other jurisdictions, which of course includes Scotland—to place potential investigations with the relevant authority. An SFO secondee therefore works with the NCA bribery and corruption intelligence unit, which helps with that process by providing direct access to the assets of the NCA and SFO.

Operation of the clearing house is governed by a memorandum of understanding that was agreed in 2014 and is published on the SFO website. Parties to the MOU are the City of London police, Scotland’s Crown Office and Procurator Fiscal Service, the Crown Prosecution Service of England and Wales, the Financial Conduct Authority, the Ministry of Defence police, the National Crime Agency and the Serious Fraud Office. We need not end there, however, because the MOU is being looked at again and refreshed to ensure that it is as relevant as possible, bearing in mind current challenges.

Another MOU, between the SFO and the Scottish prosecuting authorities, sets out further rules for co-ordination and co-operation between the two bodies. The SFO does not have prosecutorial authority north of the border, but it has investigatory powers over frauds that could be prosecuted in England, Wales and Northern Ireland, so the co-operation with the Scottish authorities is vital.

Those MOUs set out the remit of each agency involved in tackling bribery, in accordance with the agreed roles and responsibilities grid that exists for bribery and corruption cases, and provide a framework for how the agencies will co-ordinate foreign bribery work. That ensures that all credible allegations of foreign bribery with a connection to the UK are properly assessed.

The SFO also takes part in other strategic delivery and working groups, including Project Bloom, which relates to pension fraud and is chaired by the Pensions Regulator, and the Panama papers taskforce announced by the then Prime Minister in April last year. The SFO is a founding member of the joint financial analysis centre, which is an important part of the Panama papers taskforce and was launched in July last year with the NCA, Her Majesty’s Revenue and Customs and the Financial Conduct Authority.

The SFO has invested a significant amount of its intelligence resources into that new joint analytical centre, which is complemented by a dedicated group of officers based within the SFO who manage and develop the resultant intelligence and contribute to the analytical process and the product of it generated by the JFAC.

The SFO also actively participates in a number of Panama papers forums, including the JFAC co-ordination and response group, which provides a platform to share efficiently information and intelligence, agree primacy and co-ordinate joint working. The SFO’s commitment to the principle of joint working has directly benefited numerous SFO investigations as well as an operation with HMRC, supported by the NCA, in relation to serious and complex fraud allegations. There is a referral mechanism; the SFO refers matters to the JFAC as well as being a part of that centre itself.

The SFO does not have its own powers under the Police and Criminal Evidence Act 1984. It carries out searches and arrests with the support of the NCA and police forces and it works with them collaboratively, where appropriate, throughout investigations. That symbiosis is very much a part of the way in which the SFO operates with other organisations.

I take on board what the hon. Lady said about the need further to refine and improve the process. I can assure her that with each year that passes, that is precisely what happens. If lessons can be learned from previous failures or omissions, they are learned and they are used to refine existing memorandums of understanding and existing partnership working to ensure as seamless a response as possible to economic crime. There is much to be done. Much has been achieved, but I accept the spirit of the hon. Lady’s motion: there is more to do.

Question put and agreed to.

Oral Answers to Questions

Robert Buckland Excerpts

Thursday 16th March 2017 Commons Chamber

[Diana Johnson (Kingston upon Hull North) (Lab)]

2. What steps the Government are taking to ensure that the Crown Prosecution Service has adequate resources to tackle serious fraud and other economic crimes.

[The Solicitor General (Robert Buckland)]

The Crown Prosecution Service anticipated increases in complex cases such as fraud ahead of the last spending review, and there was indeed a 14% increase in fraud and forgery cases last year, but, importantly, the conviction rate stayed stable at 86%.

[Diana Johnson]

With a third of the workforce cut since 2010—400 prosecutors and 1,000 administrators and caseworkers—does the Solicitor General really consider that the CPS is able to deal with these complex fraud and economic cases, and will not any further cuts leave it in a really bad state to prosecute?

[The Solicitor General]

I assure the hon. Lady that the allocation of resources for the prosecution of fraud has increased within the CPS. There are now over 200 specialist fraud prosecutors, not just here in London but across the country in important regional centres, and that number is set to increase to 250 in the months ahead, so the CPS is really placing an important priority on this.

[Robert Neill (Bromley and Chislehurst) (Con)]

Does the Solicitor General agree that the work of the Crown Prosecution Service in this area is very much complemented in cases of really serious economic fraud by the work of the Serious Fraud Office, which has been transformed under the leadership of David Green, resulting in the recovery of over £500 million of ill-gotten gains? Does he agree that the model of the Serious Fraud Office does this country great credit and will be of increasing value to us in future?

[The Solicitor General]

I am grateful to the Chairman of the Justice Committee. He is right to highlight the recent successes of the SFO in collecting millions of pounds for the taxpayer as a result of deferred prosecution agreements. I think the Roskill model, which brings together investigators and prosecutors in one unit, works very well.

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

Picking up on the point made by the Chairman of the Select Committee, does not the existence of the Serious Fraud Office reduce pressure on the Crown Prosecution Service in terms of prosecuting big-ticket economic crime? Will the Solicitor General therefore guarantee that the Serious Fraud Office will continue to exist as it is and will not be merged with the Crown Prosecution Service or the National Crime Agency?

[The Solicitor General]

The hon. Gentleman knows that the Government are at all times under a duty to review the mechanism by which we tackle economic crime, because it is a question not just of criminality but of national security. The Government are therefore right to examine the situation. As I said, I think the Roskill model works extremely well.

[Nick Thomas-Symonds]

I did not detect a guarantee in that answer. A month ago, the Solicitor General praised the work of the director of the Serious Fraud Office and how he had enhanced the role of the Serious Fraud Office in our national life. I know that the hon. and learned Gentleman has fine persuasive skills, so if he will not give a guarantee, will he at least undertake to go to see the Prime Minister to speak about the advantages of the Serious Fraud Office and having investigatory and prosecuting services under one roof?

[The Solicitor General]

I am happy to indicate to the hon. Gentleman that I have regular conversations with ministerial colleagues about all these issues. I praise David Green for the work he has done in leading the SFO. I will continue to make the case for the Roskill model.

[Mr Philip Hollobone (Kettering) (Con)]

I suspect that those who have the necessary financial expertise to investigate, uncover, prosecute and prove complex financial fraud will probably get paid a lot more in the private sector working for business or the City. What can the Solicitor General do to ensure that the right people with the right skills are retained by the CPS and the SFO?

[The Solicitor General]

My hon. Friend knows that the SFO operates a model of funding that means it can be quite flexible as regards particular investigations. The important point is that we get the right people with the right specific expertise in particular types of serious fraud. Flexibility is the most important principle.

[Tim Loughton (East Worthing and Shoreham) (Con)]

Everybody knows that there is a lot of hot money in the London high-end residential market, especially coming from Russia, and there are extensive reporting regulations on financial advisers and agents, so why have there been so few prosecutions for money laundering in this area?

[The Solicitor General]

I share my hon. Friend’s concern about this. He will be glad to know that the provisions in the Criminal Finances Bill, which I hope will become law very soon, will enhance the powers of prosecutors and investigators in going after ill-gotten gains with new measures such as unexplained wealth orders, which will help us to deal with the perpetrators of this type of fraud.

--- Later in debate ---

[Lucy Frazer (South East Cambridgeshire) (Con)]

5. What steps the Crown Prosecution Service is taking to increase the number of prosecutions for violence against women and girls.

[The Solicitor General (Robert Buckland)]

The CPS is prosecuting and convicting more defendants of domestic abuse, rape, sexual offences and child sexual abuse than ever before. Under the cross-Government violence against women and girls strategy, the CPS has committed to a number of actions between now and 2020 to ensure the effective prosecution of these offences.

[Amanda Solloway]

What is the CPS doing in the Derbyshire area to ensure that more perpetrators of violence against women and girls are brought to justice?

[The Solicitor General]

I know that my hon. Friend has a great interest in and concern about these serious matters. I am happy to tell her that in the last year, 1,805 cases were charged by the CPS—a rise to 70.6% compared with the figure for the previous year—and 1,867 cases resulted in a conviction. The conviction rate in Derbyshire is running at 4.4% higher than the national average.

[Lucy Frazer]

In Cambridgeshire in 2015-16 there was an increase in the number of convictions for violence against women and girls to 1,031. What is being done to use technology to improve the gathering of evidence for these crimes?

[The Solicitor General]

As my right hon. and learned Friend the Attorney General has just mentioned, the CPS and the police are embracing the use of technology. The use of body-worn cameras, which is being rolled out across the country, will transform conviction rates and the number of guilty pleas when the evidence is clear and overwhelming in these cases.

[Mr Peter Bone (Wellingborough) (Con)]

Much of the violence against women and children is caused by human traffickers. Does the Solicitor General welcome the announcement today of an investment of £6 million by the Home Secretary in fighting modern-day slavery? We are really leading Europe on this issue.

[The Solicitor General]

My hon. Friend is absolutely right to link modern-day slavery with violence against women and girls. He knows from his leadership on this issue that if there is a co-ordinated approach to these problems, victims can be identified and perpetrators can be brought to justice. This is yet another welcome milestone along the road in our world leadership on these issues.

[Natalie McGarry (Glasgow East) (Ind)]

6. What the legal and administrative costs incurred by the Government were of the Supreme Court appeal on article 50.

--- Later in debate ---

[The Solicitor General (Robert Buckland)]

The Bribery Act 2010 “failure to prevent” offence is holding corporate offenders to account for criminal activity. We are introducing a new offence of failing to prevent tax evasion in the Criminal Finances Bill. Building on this, the Government have published a call for evidence to explore the options for further reform, including extending the “failure to prevent” offence.

[Sir David Amess]

Will my hon. and learned Friend look very carefully at the way in which Uber operates? In the past year, it paid £411,000 in tax. I have been inundated with complaints from traditional taxi drivers about the seemingly unfair, unscrupulous and unregulated way in which Uber deploys its drivers.

[The Solicitor General]

I listened with concern to my hon. Friend’s question. As I have said, there will be a new corporate offence of failing to prevent tax evasion. If there is evidence of criminality, I urge my hon. Friend and others to report such matters to the police.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

8. What discussions he has had with the Director of Public Prosecutions on rates of prosecution for hare coursing.

[The Solicitor General (Robert Buckland)]

I have regular meetings with the Director of Public Prosecutions at which a variety of issues are discussed. The CPS takes the prosecution of hare coursing very seriously. I understand that the chief Crown prosecutor for the east midlands has recently had a meeting with the police and crime commissioner and the chief constable of Lincolnshire at which this issue was discussed.

[Dr Johnson]

Not only is hare coursing cruel to the hare, but it causes economic damage and is causing increasing fear in our rural communities. What is the CPS doing to ensure that prosecutions for hare coursing are successful, and to help to put a stop to this crime?

[The Solicitor General]

I know that my hon. Friend, who represents a rural constituency, is dealing with this issue and working with local farmers and others to try to combat it. Each Crown Prosecution Service area has a wildlife co-ordinator so that the knowledge needed to prosecute these offences is readily available. The CPS works closely with the police and other wildlife communities to tackle this serious scourge.

[Rehman Chishti (Gillingham and Rainham) (Con)]

10. What the Government’s policy is on which factors to take into account when deciding whether responding to an imminent threat is permitted under international law.

Serious Fraud Office (Contingencies Fund Advance)

Robert Buckland Excerpts

Tuesday 7th February 2017 Written Statements

[The Solicitor General (Robert Buckland)]

I would like to inform the House that a cash advance from the contingencies fund has been sought for the Serious Fraud Office (SFO).

In line with the current arrangement for SFO funding agreed with HM Treasury, the SFO will be submitting a reserve claim as part of the supplementary estimate process for 2016-17.

The advance is required to meet an urgent cash requirement on existing services pending parliamentary approval of the 2016-17 supplementary estimate. The supplementary estimate will seek an increase in both the Resource Departmental Expenditure Limit and the net cash requirement in order to cover the cost of significant investigations.

Parliamentary approval for additional resources of £5.5 million will be sought in a supplementary estimate for the Serious Fraud Office. Pending that approval, urgent expenditure estimated at £5.5 million will be met by repayable cash advances from the contingencies fund.

The advance will be repaid upon Royal Assent of the Supply and Appropriation (Anticipation and Adjustments) Bill.

[HCWS463]

Serious Fraud Office

Robert Buckland Excerpts

Tuesday 7th February 2017 Westminster Hall

[Mark Field]

I very much take on board what my right hon. and learned Friend says, and I understand his concerns. He made a powerful point towards the end of his speech about the importance of there being public trust in the financial services sphere if it is to be the success we all hope it will be in the post-Brexit world.

To effect the necessary sea change in attitude and create a body with the powers of its US equivalent, we would need to be able to impose substantial fines on wrongdoers. Such fines could play a role in covering the costs of any new organisation. Clearly, there would be a need for some legislative changes, but measures would also need to be put in place to protect whistleblowers and offer genuine immunity to those who were aware of anti-competitive practice when they came forward.

[The Solicitor General (Robert Buckland)]

I am very interested in the point that my right hon. Friend outlines. What standard of proof would be applied in the proposed new regime?

[Mark Field]

I understand the point about moving away from a criminal more to a civil standard of proof. This is a back-of-the-envelope-type suggestion. I am just putting a few broader proposals forward because, as has been referred to elsewhere, the power of deferred prosecution is very much a positive step in the right direction. As Members know, deferred prosecutions will enable proceedings in a criminal case to be delayed for a given period, subject to certain conditions being met by the company in question. At the end of the set period, if all agreed conditions have been met—often, that includes paying a substantial fine along the lines of the one that Rolls-Royce had to pay—charges can be dismissed and the judgment of conviction can be entered. It is a more pragmatic prosecution-related process.

I could go on and on, but I know that at least one other Member wishes to speak and that we all want to hear from the Front-Bench spokespersons. Let me just say this, if I may: the incentives provided by healthy competition and the deterrent of stiff punishments should have formed the backbone to the new era of banking and business in the aftermath of 2008. The past two Administrations have missed the boat in restoring both the confidence of market professionals and the trust of the British public in our financial institutions. I very much hope that in addition to addressing the important issues raised in the thoughtful contributions made by the right hon. Member for East Ham and my right hon. and learned Friend the Member for Harborough, the Government will use this opportunity to take a fresh, broader look when it comes to the overall workings of the SFO, as well as its funding, and ensure that it has its rightful place within the enforcement sphere in the years to come.

--- Later in debate ---

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve once again under your chairmanship, Mr Owen. I thank and pay tribute to the right hon. Member for East Ham (Stephen Timms) for securing this debate, which has been wide-ranging and well informed. Perhaps we should expect that when we have a former Chief Secretary to the Treasury in the room and one of my predecessors as Solicitor General, my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier). Indeed, my right hon. Friend the Member for Cities of London and Westminster (Mark Field) also has long expertise in and knowledge of combating financial crime.

The hon. Member for East Renfrewshire (Kirsten Oswald) raised a specific case. I am grateful to her for raising such a serious matter. She is right to say that from the layperson’s point of view, it can be—to borrow a phrase from my right hon. and learned Friend the Member for Harborough—a bit of an alphabet soup when it comes to the investigation of serious crime. I have not had notice of that particular issue. I make no criticism of the hon. Lady for that, but my advice would be to write directly, if she has not already, to the director of the SFO, copying in the Law Officers, so that we can have full and up-to-date knowledge of the serious case she raises.

I will do my best in the 10 minutes or so that I have to answer the questions posed by the right hon. Member for East Ham. I come straight to blockbuster funding. I have to confess that I am too young for glam rock, and perhaps that is a good thing. In my mind, the word “blockbuster” conjures up the golden age of Hollywood. I do not know whether that is an appropriate metaphor, because we are dealing with an independent prosecutorial authority that, for the best part of 30 years, has worked in a particularly specialised way, bringing together investigators and prosecutors from the outset. That is the Roskill model to which right hon. and hon. Members have referred. To be scrupulously fair to the right hon. Gentleman, he conceded—I think properly—the point that some element of blockbuster funding is desirable and, indeed, appropriate. When he was in the Treasury, I am sure the same rules were applied to the SFO. The question is not one of principle therefore, but of degree.

I come back to the age old question of balance and how to maintain that from year to year. The particular criterion that is now used by the Treasury was set out back in October 2012, when the then Chief Secretary to the Treasury came to an agreement with the director in relation to the funding of very large cases. Blockbuster funding is applied for when it is expected that costs to investigate and potentially prosecute a case will exceed 5% of the SFO’s core budget, which, at present, are cases likely to exceed £1.7 million. The ability to have recourse to funding for very large cases is a model that the Law Officers fully support. The SFO has to present a business case to the Treasury, but I reassure right hon. and hon. Members that it is not the Treasury’s function to perform the role of gatekeeper and assess the legal merits of a particular case. That is not its function at all. As the right hon. Member for East Ham will well know, its function is to make sure that the case is sound and that there is evidence on which to base that application; that the SFO has demonstrated that there is a real need for the money based on specific investigations or day-to-day needs. It is on that basis that we would see an advance being made.

The hon. Member for Torfaen (Nick Thomas-Symonds) rightly refers to a written ministerial statement that I am laying today to outline the position. I agree with him that it might seem rather inelegant, but, when it comes to the need to be flexible and to recognise the ever-changing demands on the SFO, I am afraid a degree of inelegance is a price worth paying for the practical effect of making sure that the SFO has fleetness of foot for dealing with a case load that varies dramatically year on year.

[Nick Thomas-Symonds]

I do not think there is any dispute on the principle and the flexibility. The dispute is about the balance. Does the Solicitor General feel that the balance has been right in recent years? Should it be adjusted in favour of core funding?

[The Solicitor General]

The hon. Gentleman is right to bring me back to balance. From year to year, it is very difficult to predict. There will be times—he cited a year—when the amount of blockbuster funding exceeds the core funding, but there are other years when that is not the case. That underlines more eloquently than I can the essential fluidity of the system.

In replying to the right hon. Member for East Ham, I would deal with the question in this way. It would be troubling if either the Law Officers’ Department—there was once a suggestion that our Department should be the gatekeeper—or the Treasury acted in some way as a second opinion, second-guessing the professional judgments of members of the SFO. That would be wrong and is not what happens when it comes to blockbuster funding. No application for blockbuster funding has ever met with a refusal. That is a very important point to hold on to when it comes to the Government’s understanding of the reputational importance that the fight against economic crime has not just for the Government, but for the United Kingdom generally.

[Mark Field]

rose—

[The Solicitor General]

I give way to my right hon. Friend, who made that point.

[Mark Field]

The Solicitor General made a statement on the instances of refusal by the Treasury. I was going to come on to that. Has there been a refusal on the degree of blockbuster funding? It might not have been about the overall amount, but has there been a sense of haggling between the SFO and the Treasury over the amounts that should be given for particular cases?

[The Solicitor General]

My right hon. Friend invites me down a course that I am perhaps not fully qualified to talk about. There will of course have been discussions about the amounts, but at no time—this is again very important—has funding been a bar to the proper investigation of cases that are brought before the SFO and meet the criterion that the hon. Member for East Renfrewshire and the hon. Member for Strangford (Jim Shannon) set out. Previous Law Officers, including my right hon. and learned Friend the Member for Harborough, and current Law Officers have made it clear that funding issues will never be a bar to the prosecution of serious fraud in this country. That is why the reputation of the United Kingdom, to which organisations such as Transparency International have attested, is as one of the leaders in the field for the prosecution of economic crime.

In response to my earlier invention, my right hon. Friend the Member for Cities of London and Westminster conceded that his interesting ideas, which I very much hope will be fed into the Cabinet Office review of economic crime, must acknowledge the fact that we are dealing with not a regulatory but a prosecutorial authority. The tests, with which most hon. Members are familiar, of reasonable prospect of success and the public interest, as well as remembering the high standard of proof that needs to be reached, are vital when it comes to the criteria for an independent prosecutorial authority.

Right hon. and hon. Members will know that the Ministry of Justice is conducting a call for evidence on corporate responsibility. The Government have an excellent track record in that area, having supported and brought into force the Bribery Act 2010, particularly section 7, which created a failure to prevent bribery offence. A similar offence in the field of tax evasion is in the Criminal Finances Bill and the Government will seriously consider the outcome of the forthcoming consultation when it comes to failing to prevent economic crime.

I think the question of the attitude of the director to blockbuster funding has been adequately covered. I have described the system as inelegant, or imperfect. Although the director works within the system, at no point has he felt under any improper pressure from the Government, or the Treasury, on applications for funding. That is very important, bearing in mind the current director’s record in improving and enhancing the role of the SFO in our public life. In paying warm tribute to David Green, I also commend him for the creation of a chief operating officer post, which I think will go a long way to dealing with some of the human resources points raised by hon. Members.

On diversity, I am glad to say that when it comes to new starters at the SFO, 51% are female. I accept the diversity figures. However, before I sit down to allow the right hon. Member for East Ham to conclude the debate, I would say that it is tempting to seek to create a permanent cadre of staff at the SFO who might be able to build up expertise, but each large case stands very much on its own facts. The context of each case can vary widely. Therefore, the continuing need for flexibility in employing specialist agency staff who might be familiar with a particular scenario will not go away. I make no apology for the fact that flexibility of funding is important in terms of year-to-year demand, and employing and engaging agency staff can be of real benefit when it comes to the prosecution of specialist crime.

Crown Prosecution Service: Funding

Robert Buckland Excerpts

Wednesday 11th January 2017 Westminster Hall

[Karl Turner]

My hon. Friend is absolutely right. I will make that point myself. Excluding guilty pleas, conviction rates in magistrates courts and Crown courts are significantly down, despite the headline figure of an 80% conviction rate. I think the conviction rate in magistrates courts is about 50%, and in Crown courts it is about 25%, excluding guilty pleas. Since 2010, CPS staff numbers have fallen by a whopping 2,400. The CPS is suffering a brain drain and haemorrhaging experienced in-house lawyers, who leave for independent practice, or simply take the money and run.

On a serious note, I mentioned a caseworker bursting into tears in open court, clearly because of the pressure. I am told that the stress levels at the CPS are seriously high. Interestingly, a 2012 LawCare survey of the law profession revealed that more than 50% of the legal profession generally felt stressed, and that 19% were suffering from clinical depression, with more than one fifth of the profession suffering from mostly avoidable and preventable mental ill health. Stress at the CPS must be off the scale, particularly considering a recent Law Society survey in which 95% of respondents said that they were stressed at work.

Furthermore, in May 2016 the Public Accounts Committee inquiry found that

“The criminal justice system is close to breaking point.”

According to the National Audit Office report of March 2016, “Efficiency in the criminal justice system”, the number of cases outstanding in Crown courts had increased by 34% since 2013, and the waiting time for a Crown court case to be heard had increased from an average of 99 days to 134 days—an increase of about 35%.

In 2014-15, the Crown Prosecution Service spent £21.5 million preparing cases that were not heard, as the shadow Solicitor General, my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), helpfully said. What has happened to those cases and the £21.5 million? If memory serves, it costs just shy of £1,000 to prepare a case for Crown court—the CPS says that being trial-ready costs it about £1,000—and £21.5 million has been spent on preparing cases that got nowhere. One must assume that the evidential test had been passed, and that the CPS reviewing lawyer had determined that there was enough evidence—that is, on balance, more evidence than not, and a more than 50% chance of a successful prosecution—and that it was in the public interest to prosecute that case. Twenty-five million quid was spent on preparing cases that went nowhere. The Solicitor General might be able to correct me and clear the matter up, but I assume that that is down to cases coming to nothing. In the magistrates court or, worse still, the Crown court, perhaps the CPS lawyer just gives in for whatever reason. I do not know; I am guessing. I have no idea.

[The Solicitor General (Robert Buckland)]

I am anxious to answer as many questions as possible. In the Crown court, cracked and ineffective trials that have not gone ahead for prosecution reasons have, as a proportion, fallen to only 13.5%. That proportion of the total is falling; it is important to bear that in mind when looking at the overall context. I hope that helps the hon. Gentleman.

[Karl Turner]

That is a fair point, but nevertheless £21.5 million is a staggering amount of money to be spent by the CPS on preparing cases for trial only for them not to come to anything. It is easy to mention such figures, but we must have some thought and regard for the victims in the cases, who will be anxious for the case to make progress and to have their opportunity to give evidence for the prosecution, and desperate to find out what happens in the trial. In my submission, the victims suffer the most from all that. [Interruption.] I will not give way, because I have been notified by the Attorney General’s office that some Government Back Benchers have indicated a wish to make a speech in the debate.

Interestingly, Her Majesty’s Crown Prosecution Service inspectorate found that charging decisions were not correct in 18.2% of cases. There is clearly a problem between the police, who are either, in cases where they are authorised to charge a case without referring it to the CPS, authorising charges that they perhaps ought not to and probably not getting advice from a CPS lawyer, or—I say this carefully—perhaps not giving the full information to the CPS reviewing lawyer.

It would not be fair if I did not say that I have the highest possible regard for CPS lawyers individually. Prior to my election to the House, I prosecuted for a fair while from chambers, and I found that CPS caseworkers and lawyers had the highest professionalism. They were committed and extremely capable individuals who cared a great deal about the job they did. I pay tribute to each and every one of those CPS lawyers, who are under incredible pressure. I also pay tribute to the Director of Public Prosecutions, Alison Saunders, whom I know personally. When I was shadow Solicitor General and shadow Attorney General, I met her on a good number of occasions, and I know that the Solicitor General meets her regularly, too. I find the DPP very professional, extremely impressive and extremely committed to the task in hand. Unfortunately, she is under considerable pressure, but she does the very best in difficult circumstances.

The decisions that I referred to should have been reviewed by a Crown prosecutor prior to the charge being authorised, but—this is a staggering figure—in 38.4% of cases, decisions were not reviewed before the case was first heard at a magistrates court. Prior to being elected to this place, I practised as a junior. I was the one who prosecuted for the CPS. Before my next day in the magistrates court, if I was lucky—sometimes it was on the morning—my clerk would give me a big, black CPS bag containing files for the next morning. I would go home and prepare 10, 12 or 15 files for trial. It would often take me through the night. All night long, I would drink large quantities—[Interruption] —of coffee, the Solicitor General will be rather relieved to know.

I would go into the courtroom the following morning to find that witnesses were not there, police officers were not available, shift patterns had changed all of a sudden, reviewing lawyers were unavailable, and the caseworkers who were available on the end of the telephone were not in a position to make any decisions. The defence, who were keen to crack the case and put it to bed, might offer me a section 5 public order offence, rather than the section 4 offence that had been charged. I would read the file and think that whoever had authorised the section 4 charge had been optimistic, to say the least, and would want to drop it in preference for a section 5 charge, which would be easy enough to get home and get a conviction for, but no lawyer would be available for me to speak to.

That was then. I have not been in a magistrates court to prosecute—I have recently been in one in a pro bono matter—since 2010. Things were bad enough then, but they are getting worse. Things are much worse now than when I was on my feet in magistrates courts before I left Wilberforce chambers in April 2010.

Some 38.4% of cases are not reviewed before they first come before the magistrates court. In reality, that means that if the prosecuting lawyer has been really lucky, they open their file and they have their witnesses ready, they have interviewed them individually, they have checked that what the police say in their statement is what they are about to give as evidence and is correct, and they are ready to crack on. But then they find that things are not quite right. The charge is probably not correct, in truth. Whoever has reviewed it probably has not done so very well, or things have been kept from the reviewing lawyer that are particularly important to their charging decision. The fact that 38% of cases are not reviewed means that when a prosecuting lawyer goes in to prepare cases for trial, nearly half of them will not even have been reviewed by a CPS lawyer. They have one arm very definitely tied behind their back.

I have kept Members long enough, but given that Government Members will say that everything is great, I want to talk about what the profession says—what individuals at the Bar say about their experience in the CPS. It would not be right for me to name people, but this is from an experienced CPS prosecutor of 30 years’ call:

“CPS hesitate to instruct QCs to prosecute even murders. Very serious, high publicity, or multiple murders will get a Silk prosecuting; otherwise not. The decision tree is on the CPS website”,

which I helpfully have in front of me. He continues:

“As a fairly senior junior barrister…I have over the last 5 years prosecuted some 12 murder cases. I have done this as single counsel. About 8 of those have been prosecuting against QC and a junior. One was of two defendants both with QC”

and their respective juniors. The CPS provided him with a CPS lawyer—a higher court advocate—in that case. He was against two silks, effectively—two Queen’s counsel —with their own juniors. I am talking about a junior not of the level I was at prior to coming into this place but of probably 20 years’ call, who has prosecuted and defended for an awfully long time and has a great deal of experience of being junior to leading counsel, and of prosecuting a murder on his own without leading counsel.

That CPS prosecutor says that, in contrast, judges

“have some influence on Defence getting a QC, and will say in open court ‘This being a murder case the Defendant should’”—

the judge of course is right—

“‘have leading counsel’ and the legal aid is then likely to be extended to cover that.”

In that scenario of a double-handed case with two defendants, why should the victim, whose loved one has allegedly been murdered, have counsel bringing the case for the prosecution against two leading counsel and two junior counsel? How does the victim feel in that scenario?

I hope it will not annoy you too much, Mr Hanson, if I talk briefly about some other cases that have been mentioned to me.

--- Later in debate ---

[The Solicitor General (Robert Buckland)]

It is a great pleasure to serve under your chairmanship, Mr Hanson. I know, on a personal level, that you have had a long interest in these matters. I hope the debate has been of particular salience to you.

I thank the hon. Member for Kingston upon Hull East (Karl Turner), my former shadow. It has been nice to be together again in that sense. I have often thought that it would have been great if he and I had done a case against each other, but I was in another part of the country from him. When he was reminiscing—not quite eulogising—about his days carrying large amounts of files to the magistrates court, it took me back to my time back in the ’90s when I did precisely the same thing.

Here is the rub: times have changed. The hon. Gentleman will be glad to know that he does not now have to carry all those files. He can have it all on an iPad or a laptop, because of the Transforming Summary Justice initiative in the magistrates court. That means there is far more efficiency now in the use of digital technology in the court. If he came with me to CPS offices, he would be amazed that in magistrates court divisions now, paper is the exception, rather than the rule.

[Karl Turner]

It is all very good when it works, but people are reporting to me that, sadly, it does not work and often goes wrong—very badly wrong. Cases are vacated as a result of the very thing the Solicitor General mentions.

[The Solicitor General]

I am grateful to the hon. Gentleman for sharing some powerful anecdotes. I do not underplay anecdote; it certainly helped to inform me in my long career at the criminal Bar. However, the overall statistics tell the full story about what is happening across the system. There is no doubt that in the magistrates court, we are seeing an increase in efficiency. For example, guilty pleas at the first hearing in the magistrates court have increased as a proportion of total cases from just over 62% back in 2010 to over 70% in the past year. That is indicative—

[Karl Turner]

Of self-represented clients—litigants in person.

[The Solicitor General]

No, it is not. It is indicative of much better preparation by the prosecution of the cases, so that when defendants appear, they face a case that has been properly put together. That is also reflected by the increase in the overall guilty plea rate, which has gone up from just under 68% to 76.3%.

The hon. Member for Kingston upon Hull East talked about inefficiency. I am pleased to tell him that average hearings per case for both guilty pleas and trials have reduced. For trials heard in the magistrates court, we are now looking at just under three days, as opposed to three and a half days or more. Compliance with judges’ orders was always an issue when it came to the Crown Prosecution Service. Hon. Members will remember “mentions”—my hon. Friend the Member for Cheltenham (Alex Chalk) will know exactly what I am talking about. I am glad to say that we have seen an increase in timely compliance with judges’ orders in the Crown court in recent years. The rate has increased to more than 80% in the last two years.

[Amanda Solloway (Derby North) (Con)]

Does my hon. and learned Friend agree that we need an ongoing discussion about how the CPS can be more efficient and effective in its work and that that should continue?

[The Solicitor General]

My hon. Friend represents a city that has a Crown court and a magistrates court. It is an important court centre in the east midlands. I know from my visits to many regions across England and Wales that those conversations continue. There is local liaison and local discussion.

To respond to the point my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) made about accountability, joint performance management, which is what we are talking about, takes place in most areas and enables local agencies, whether the courts themselves or the defence community, to challenge the CPS when performance is not acceptable. Line managers individually assess prosecutors in the CPS, so accountability is an important part of this.

[Nick Thomas-Symonds]

The Solicitor General read out some of the statistics about magistrates courts. Of course we all want to see and welcome improvement, but is he as concerned as I am that the average number of days from an offence to completion in a magistrates court has increased from 155 days in the second quarter to 2015 to 162 in the second quarter of 2016?

[The Solicitor General]

The hon. Gentleman is right to make that point, but the point made by my hon. Friend the Member for Cheltenham is the right one. Here we are debating funding for the CPS and we are eliding two issues: the overall performance of the criminal justice system with the performance of one part of it. What is happening with the caseload, particularly in the Crown court, is that complexity is increasing. There has been a marked shift—the hon. Member for Torfaen (Nick Thomas-Symonds) will agree—away from the sort of volume cases that might take a day or two to quite complex and often difficult cases involving sexual allegations. I am told by many resident judges in the Crown court centres I visit that they now form the lion’s share of court work in the lists. That complexity is definitely resulting in more challenges for the Crown court.

I was glad to note that in recent years the Ministry of Justice has increased sitting days. That has certainly helped to reduce any backlog, but with respect to the hon. Gentleman, it would be a little unfair to lay the problems of delay completely at the door of the Crown Prosecution Service. Let us focus on the debate called by the hon. Member for Kingston upon Hull East on funding.

I accept, of course, that as a result of the tough decisions we had to make in 2010, expenditure was reduced. I pay tribute to the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who stewarded the CPS through that period. He did a remarkable job of delivering efficiency and providing leadership, which was then taken up by Alison Saunders, the Director of Public Prosecutions, who has rightly been praised here today. The hon. and learned Gentleman proved that the job could be done with a declining share of expenditure. When we look at the figures—my hon. Friend the Member for North East Hampshire (Mr Jayawardena) mentioned this—we see that performance and conviction rates have stayed remarkably steady through the years.

I am delighted to see on my visits to regional offices that there is smarter use of personnel within the CPS. I will give an example. North-east prosecutors will be able to work remotely—and do so—on south-east cases. That is a good emblematic example of how the CPS is making sure it uses all the resources available to it from whatever part of the country they come. That is certainly a boon to the south-east. I know it happens with prosecutors in Wales who are helping out in cases in London. That is another example of how we must not let regional boundaries become barriers to better working.

Digital case management has now made its way into the Crown court and is making a real difference. With my long years at the coalface of the criminal Bar, I was the first to be sceptical about digital and the use of IT. I have seen it before, but, believe you me, when I saw the pilots in Southwark, for example, I was delighted to see judges embracing that and telling me that the system was user friendly and starting to make a difference. Now that it has been rolled out across the country, it is starting to bear fruit.

Hon. Members talked about the challenges of the CPS and about charging decisions. It is right to say that the police have a role with regard to some charging decisions. There was a sea change, in that motoring offences were largely transferred to the police for decision making. That of course added to the reality that, with the increase in sexual offences, the CPS was now dealing with an entirely different caseload. There was not a like-for-like transition, and that complexity means extra challenges for CPS lawyers.

The hon. Member for Torfaen referred to the use of agency workers. I make no apology for that, because I think that using the independent Bar—whether to do agency work in the magistrates court or, vitally, to prosecute serious cases in the Crown court—is exactly what the Crown Prosecution Service should be doing. I am glad to say, having spoken with chief Crown prosecutors across the country, that it is increasingly using the experience and expertise of prosecutors to manage cases effectively within the system, so that we have the excellence in advocacy that we get from the independent Bar and the excellence in case management that we get from experienced CPS employees.

[Nick Thomas-Symonds]

I do not think that there would be any disagreement about the excellence of the advocacy of the independent Bar. I was simply making the point that when we see apparent cuts in the staffing budget, we have to look at the overall picture. We have to look at the temporary staff as well in adding things up to a single figure.

[The Solicitor General]

Again, I have spoken directly to many CPS staff, particularly in Wales; indeed, a lot of them used to instruct me. Some of the staff have been there for 30 years—the CPS’s retention rate is extraordinary. I think I get a bit of frankness from them, and they tell me that, in many respects, working practices have improved. The reduction in offices has helped them to work more smartly. They are now physically co-located in buildings with the police. They are working in ways that they did not dream were possible before.

[Alex Chalk]

Does my hon. and learned Friend the Solicitor General agree with me, and indeed the hon. Member for Kingston upon Hull East (Karl Turner), that if one is to use the independent Bar, it is also important to ensure that equality of arms is observed? There comes a point at which victims’ groups and victims’ families can rightly note the disparity that apparently exists between the seniority of counsel for the defence and the relatively junior status of counsel for the Crown.

[The Solicitor General]

My hon. Friend makes an important general point. Equality of arms is, of course, enshrined in article 6 of the European convention on human rights. It is something that we all understand as practitioners. It would be wrong of me to comment on individual cases, but I will say that where the Crown Prosecution Service is having to deal with complicated and complex issues relating to homicide, resource is never a bar to using the most experienced and senior counsel available, and that of course includes leading counsel.

Time is extremely short, and I want to give the hon. Member for Kingston upon Hull East a minute to respond, but let me say this. With regard to engagement, the most recent survey of employees of the CPS, of which two thirds took part, showed a welcome increase this year of 5%, right up to a figure of just over 59% telling us that morale in the CPS is good. They face significant challenges, but with increased numbers, particularly in the rape and serious sexual offences units, and an emphasis on the prosecution not just of volume cases but of serious sexual offences, conviction rates continue to stay steady and the numbers of people being brought to justice continue to rise, particularly in the important area of violence against women and girls. I could say much more, but I am mindful of the time.

Investigatory Powers Bill

Robert Buckland Excerpts

Ping Pong: House of Commons
Tuesday 15th November 2016 Commons Chamber

[The Solicitor General (Robert Buckland)]

I beg to move,

That this House disagrees with the Lords amendments 15B, 15C, 338B, 339B and 339C.

Two weeks’ ago, we considered Lords amendments to the Investigatory Powers Bill. In accepting unopposed all amendments that relate directly to the subject matter of the Bill, this House demonstrated the value we all place on legislative scrutiny in the other place, and recognised the many improvements made by their lordships to this important legislation. We welcome the spirit of cross-party co-operation on this crucial matter. I would like to put on record again my admiration for the approach taken by all parties in both Houses in contributing to this landmark Bill.

Together, we have created a world-leading framework for the use of investigatory powers by law enforcement and the security and intelligence agencies. We have strengthened the authorisation processes and safeguards around the use of those powers, and we have created a powerful new body that is responsible for the oversight of those powers.

During that debate, however, we also gave thorough and anxious consideration to the amendments tabled by Baroness Hollins, supported by others, which sought to use the Bill as a vehicle to change the law in relation to the regulation of the press. The amendments would introduce a presumption that a court should award costs against a publisher in cases of unlawful interception if it is not part of a recognised regulator, regardless of whether or not it won a case.

[Simon Hoare (North Dorset) (Con)]

Did my hon. and learned Friend see the article in The Times last week by the noble Lord Pannick? He is not necessarily always a friend to the Government on these matters, but he very clearly said that the Lords amendments should be rejected, that this was an important and well thought out Bill, and that the sooner we got on with it, the better.

[The Solicitor General]

I am very grateful to my hon. Friend. Lord Pannick played an important part in helping to refine other parts of the Bill, most notably on legal professional privilege. Lord Pannick said that we

“should reject the Lords’ attempt to hold such an important bill hostage on issues of press regulation that are far from central to the bill’s purposes.”

The Bill does not, and never was intended to, provide for the regulation of the press. It is about providing vital tools for our law enforcement and security and intelligence agencies. The Lords amendments we are considering today differ slightly from those we debated last time. The noble Lady revised her proposal to remove the link to clause 8 in order to avoid any risk that it could have an impact on the provisions already in the Bill. She also added a six-year sunset, which she suggests means that the change could be allowed to fall away after the process of reform of press self-regulation is complete. I thank the noble Lady for her efforts to minimise the collateral impact of her amendments and I recognise the goodwill she is showing in doing so, but I am afraid that the fundamental problem remains. The amendments are simply not appropriate at this time, or in this legislation.

The public consultation announced by the Secretary of State for Culture, Media and Sport, who is on the Front Bench today, speaks directly to the concerns of those supporting the amendments. It provides everyone—whether a publisher or a victim of phone hacking, a parliamentarian, journalist, police officer or a member of the public—with their rightful opportunity to contribute to the debate on the issue of press self-regulation, which affects each and every one of us in this country. The consultation document not only sets out the position but asks a series of questions to consultees. The questions are wide-ranging and allow a number of options to be explored. As is proper with a consultation, they allow consultees to express their views fully and to provide evidence to support their contentions. A number of options are set out. It is not simply a question of commencement, but whether part of section 40 should be commenced to afford protection to members of a recognised regulator, whether to not apply the particular provisions to publishers outside a recognised regulator, and to consider whether section 40 should be fully commenced, repealed or kept under review. This is an important consultation. It allows adequate time for people who are either well versed in the issues relating to the Leveson process, which occupied this House some years ago, or come new to the issue and want to have their say, bearing in mind the passage of time since the introduction of section 40 pursuant to the Crime and Courts Act 2013.

The Government have been absolutely clear that they recognise the very serious intrusion and anxiety suffered by victims of press misconduct.

[Pauline Latham (Mid Derbyshire) (Con)]

Will my hon. and learned Friend tell the House what the double lock for the most intrusive warrants will achieve, and why it is so very important?

[The Solicitor General]

My hon. Friend is right to remind the House about one of the truly innovative parts of the Bill. The mechanism proposed by Government was refined in Committee by representatives from other parties, as well as the Government. It allows for not only a politician, a Secretary of State, to make a decision about authorisation, but for that decision to be then reviewed by a judge who will apply principles of judicial review—not just Wednesbury unreasonableness, but principles relating to proportionality and human rights matters that are properly engaged in considering what we accept are serious intrusions when it comes to this type of warrantry.

The Bill is unprecedented and world leading. The double lock represents the Government’s commitment to maintaining the balance between the need for the security and intelligence agencies and other investigative agencies to be fleet of foot when it comes to investigating serious crime. It will ensure that, with judicial input, the interests of privacy and human rights are kept very much to the forefront of these decisions.

On press misconduct, we must ensure that victims have appropriate means of redress. The situation, however, is complex and the overall solution is far from clear. We must do our utmost to avoid unintended consequences of what I accept are well-intentioned actions.

[Joanna Cherry (Edinburgh South West) (SNP)]

The hon. and learned Gentleman was referred earlier by the hon. Member for North Dorset (Simon Hoare) to the words of Lord Pannick. Does the Minister also agree with Lord Pannick that there can be no doubt that the amendments are within the scope of the Bill, which was one of the Government’s previous objections?

[The Solicitor General]

The hon. and learned Lady will know that the interpretation of scope taken in the other place is somewhat different from the one both she and I understand in this place, having both served on the Public Bill Committee. I pay tribute to her for the considerable number of amendments she tabled in this House. I think we have to accept that the Lords’ interpretation allowed for the introduction of these amendments. The Government rightly had issues with some of the technical deficiencies in them. I paid tribute to the efforts made by Baroness Hollins to amend the provisions to meet some of the Government’s concerns. However—this is why we seek to reject the amendments—they have no place in a Bill that relates to the regulation of investigative powers. This is all about national security and dealing with crime, whether that be child abuse, trafficking, drug dealing or any other criminality we want to deal with in society. That is why the amendments are not only out of place but pre-empt the outcome of the consultation launched by my right hon. Friend the Secretary of State.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

Would my hon. and learned Friend not go further and say that a Bill on national security is precisely the wrong place for restrictions on the press, as it would make it look as if we were really trying to hit them hard?

[The Solicitor General]

My hon. Friend makes an important point. The Bill is all about balance and the importance the Executive attach to the way they seek to interfere or intrude into the private lives of individuals and to setting out clearly the criteria that must be met before they can act. It would be wrong to take any measure that sends a message that the Government wish to ride roughshod over the interests of individuals and freedom of speech. He knows that the consultation launched two weeks ago will deal with the very issues that have caused him concern over a number of years, although it would be wrong for me to pre-empt the outcome of that open process.

[Richard Drax (South Dorset) (Con)]

Does my hon. and learned Friend agree that phone hacking, which we hear so much about, particularly from those who support these press rules, is already a criminal offence for which people can go to jail? In addition, we have the libel laws, so anything the press does, in a major regard, is already very much covered.

--- Later in debate ---

[The Solicitor General]

My hon. Friend is absolutely right to remind us that where we have existing mechanisms —and the criminal law is, of course, there—they must be used. To be fair to both sides of the argument, the issues about redress of grievance and the mechanism of press regulation, which he knows from his experience as a journalist has existed for years, are important ones. I know that he would be as anxious as anybody in the House to make sure that, rather than the focus being on celebrities and the like, ordinary people who end up as victims—chiefly of inaccuracies reported in the media—have a reasonable and cost-effective means of redress. He is absolutely right, however, to talk about existing mechanisms and the criminal law, and of course the criminal law was used in a significant investigation by the Metropolitan police that resulted in several convictions.

[Damian Collins (Folkestone and Hythe) (Con)]

Does my hon. and learned Friend agree that, in respect of the consultation that the Secretary of State for Culture, Media and Sport has set out, we have to get the balance right between respecting the freedoms of the press and the rights of innocent people who have never sought publicity but who find themselves on the wrong side of an investigation and need a low-cost method of arbitration to bring their grievances forward?

[The Solicitor General]

My hon. Friend the Chair of the Culture, Media and Sport Committee puts it more succinctly than I did, and he is absolutely right about the balance to be struck and the need for ordinary people who might be the victims of misconduct to have access to meaningful redress of grievance, so I am grateful to him. Having been here in the previous Parliament, he and I will remember debating the Leveson process and the aftermath of the findings of Sir Brian Leveson.

Turning back to the consultation to which my hon. Friend referred, the Government have set out a clear timetable, and we have committed to responding to that consultation in a timely manner.

[Mr Jim Cunningham (Coventry South) (Lab)]

Who exactly is going to be consulted?

[The Solicitor General]

It is a public consultation and invites comment from all members of the public, from whatever corner of the country they might come and whatever interest—it might be no interest—they represent. I am grateful to the hon. Gentleman for giving me the opportunity to emphasise the important point that the Government would welcome as many responses as possible to the questions posed in the consultation—and not just responses but evidence to support the contentions made by those who take part.

[Damian Collins]

I should note that the Select Committee will be taking evidence from victims of phone hacking and press representatives and will makes its own representations to the Government through the consultation process.

[The Solicitor General]

The Government warmly welcome that approach. The work of the Select Committee—indeed all Select Committees—is invaluable and carries real weight, and the Government will consider it carefully when the consultation responses are assessed by the Secretary of State and those who serve her in the Department.

After the Government’s response, there will be ample opportunity for the House and the other place to consider and debate it in due course. As I said earlier, however, now is not the time to do so. The Bill, which we have all recognised is so important to our collective security, should not, with the greatest of respect, be used to force that debate.

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

I am glad to rise in support, once again, of these very important amendments. I believe that any member of the public who just heard the Solicitor General’s speech will be puzzled about the Government’s resistance to implementing an aspect of Leveson that they agreed to in principle some time ago.

Labour fully supports the Lords amendments and has consistently and genuinely called for the Leveson recommendations to be implemented in full. A new system of independent self-regulation was agreed by the three main political parties in 2013, following extensive consultation with victims of press intrusion, and Labour believes that the promises made to them should be honoured. If the best that the Government can come up with is that hoary old doctrine of unripe time—“It’s a good idea but not now”—they must be a little desperate. It is disappointing that we have to speak to the amendments yet again to get the Government to honour their agreements. It is a breach of the cross-party agreement, and breaks promises made by the House to the victims.

Lords amendment 15B would not be necessary had the Government fulfilled their stated commitment to implement section 40 of the Crime and Courts Act 2013, which they have promised to do innumerable times. Happily, the amendment goes further than section 40 and would not require ministerial approval, meaning that it would automatically implement section 40 in relation to phone hacking claims. This would restate the clear intention of Parliament as previously expressed in 2013. Ministers have talked about riding roughshod. The Society of Editors, the National Union of Journalists, with the backing of the TUC, and many others concerned with the freedom of the press, have said that there is the potential to ride roughshod over freedoms.

--- Later in debate ---

I agree that if a grievance is found to be justified, and the press is found to have got its facts wrong, it has a duty to publish that inaccuracy on its front page and to give it the same prominence as it gave to the original story on its inside pages or perhaps its front page. Any editor worth his salt should drag in the journalist responsible and say, “Enough is enough.” The free press: that is what we are here for and that is what I am fighting for. I totally back the Government in not supporting this Lords amendment.

[The Solicitor General]

We have heard many heartfelt contributions to this debate from Members on both sides of the House and I recognise the strength of feeling on this issue. Time does not permit me—

[Madam Deputy Speaker (Mrs Eleanor Laing)]

Order. I think the hon. and learned Gentleman is seeking the leave of the House to respond to the debate.

[The Solicitor General]

I certainly am. I seek the leave of the House to respond to the debate, but time does not permit me to say much more.

[Madam Deputy Speaker]

I congratulate the hon. and learned Gentleman on his excellent brevity.

Question put,

CPS and Disability Hate Crime

Robert Buckland Excerpts

Tuesday 8th November 2016 Westminster Hall

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve under your chairmanship, Mr Bone. I congratulate the hon. Member for Bootle (Peter Dowd) on securing the debate; I am profoundly grateful to him. He and others who have taken part will know that the issue of disability hate crime has been close to my heart not just as Solicitor General but as a Back-Bench Member of Parliament, and indeed as a parent, for a number of years.

The hon. Member for North Ayrshire and Arran (Patricia Gibson) made particularly apposite remarks about the fact that many people in our society just do not know somebody with a disability. That lack of understanding and awareness lies at the heart of some of the attitudes that we see towards disability. It is too big a picture to be laid at the feet of any particular Government or of an alleged ideological approach to austerity, which I utterly reject. It is a long-term societal issue, and only in recent years have all of us, irrespective of party, started to wake up to it and put ourselves in the shoes of individuals with disabilities.

I reiterate the Government’s co-ordinated and cross-departmental approach to the issue. I am particularly delighted to welcome the Minister for Disabled People, Health and Work, whose presence at this Westminster Hall debate eloquently represents her commitment to the issue. We have met about it, and we will continue to meet and, more importantly, to take co-ordinated action to ensure that all relevant parts of Government do everything they can to tackle this scourge, because scourge it is.

I am equally grateful to my right hon. Friend the Member for Forest of Dean (Mr Harper), who did so much as Minister for Disabled People to advance the cause, paying attention to the sort of detail that he has raised today. I hope to be able to answer his questions, and indeed those of the hon. Member for Bootle. I will seek to do so in the course of my remarks.

As I said, it is important to put ourselves in the shoes of a person with disability. That person faces three things. First, they sometimes lack the awareness that they have been or continue to be the victim of a crime, because for so many people with disabilities it has become normal and part of their way of life—it is just something that they accept. We know that is not good enough. Secondly, when that lack of awareness ends and a person starts to understand that they are a victim, what do they do? Who will listen to them and help them to report the crime? Thirdly, when that crime is reported, how do the authorities deal with it? Those are the three stages of the problem that need to be understood. It is clear that we need to do more to support people with disabilities at every stage.

I am grateful to the hon. Members for Strangford (Jim Shannon) and for South Down (Ms Ritchie) for raising the Northern Ireland experience. We have discussed before the Leonard Cheshire initiative, which puts advocacy at the heart of the project. Advocacy for people with disabilities will be the key to unlocking many of the issues that have come up, and we are seeing that approach taken widely in parts of England, Wales and Scotland. In my own area, Swindon, I am lucky to have the Swindon Advocacy Movement, an organisation that empowers people with disability to understand their rights and entitlements and helps them if they have been the victim of crime or abuse. It is all about a move away from doing things to or for people with disabilities and towards helping people with disabilities to help themselves and empowering them to become part of mainstream society.

The hon. Member for North Ayrshire and Arran was right to remind us that only 20 years ago, before the Disability Discrimination Act 1995, which was passed by a Conservative Government—I am proud of that—people with disabilities were facing a kind of Jim Crow situation. They were not able to access mainstream life and were being excluded—not only physically excluded from premises, but excluded, in a societal way, from mainstream life.

Therein lies one of the problems. One of the perceptions we need to challenge at all times relates to what disability means to people with a disability themselves. We sometimes use the word “vulnerable” a bit carelessly; there is an assumption that just because somebody has a disability then they are automatically vulnerable is not helpful to them. I think a person with a disability would say to us that there are times when they end up in situations that make them more vulnerable than others, but that does not mean that they are vulnerable at all times. Once one starts to make that sort of cosy assumption, the wrong sort of conclusions are reached. For example, people start to ask questions about why people with disabilities go out in public. Why do they go nightclubbing or shopping? Why do they do all these things that put them in danger? That is the wrong approach.

[Nick Thomas-Symonds]

I agree entirely with the point that the Solicitor General is making. Nevertheless, does he accept that there can be situations in which vulnerable people are taken advantage of by confidence tricksters? We should focus on that as well.

[The Solicitor General]

I am extremely grateful to the hon. Gentleman for that point. I welcome him warmly to his position and congratulate him on attaining it. It is a pleasure to work with him. He is quite right to talk about “mate crime”. Perhaps such examples highlight one of the deficiencies and inadequacies of using a phrase such as “hate crime” to describe the full panoply of crimes committed against people with disabilities. Mate crime is an insidious way in which perpetrators gain the confidence of often isolated and sometimes rather lonely people, perhaps with a learning disability such as autism, or another disability, and, using the trust they have built up, proceed to abuse it, very often in the form of financial crime, such as fraud, or worse—violence and sexual crime are also covered by the definition of mate crime. That is worse than confidence tricksters; it is an abuse of trust. In my mind, that makes the crime even more serious.

I am grateful to my right hon. and hon. Friends and Opposition Members for having raised some of the important figures and statistics relating to the increase in the number of reported disability hate crimes and, indeed, prosecutions for those offences. There has also been an increase in the use of the sentence uplifts that are available to judges under section 146 of the Criminal Justice Act 2003, from just over 5% of cases in 2014-15 to 11% of cases in 2015-16. We are coming from a low base, but that is going in the right direction.

The hon. Member for Torfaen (Nick Thomas-Symonds) asked about the recording of applications in which there has not been an uplift. I hear what he says, but the difficulty is that the Crown Prosecution Service is currently recording a vast number of indices through the flagging system, and it is difficult for every area of the CPS to record information with precision and then translate it in a way that makes it readily available to people like me. I hear what he says and will certainly ask whether it would be feasible, but I have to put that caveat on his request. It is clear to me that having more data is always useful, but it is then a question of how they are to be used and understood. We need to step back from that to a more fundamental position on training and awareness.

[Jim Shannon]

I indicated in my contribution that the figure for prosecutions was down in the past year, and asked whether that was because the police were not giving the issue the focus and priority that they should. If the Minister can answer that now, that would be good, but if not I am happy to wait for a response. Is disability hate crime a priority for the police?

[The Solicitor General]

I can give the hon. Gentleman the assurance he seeks. On as many of the questions he asked as possible, I shall outline the measures that are being taken. The mandated package of training—to which I think he referred in a question to me in the main Chamber some months ago—has been delivered through a classroom-based approach, as opposed to using the internet. That is very important. It was a mandated package, so it had to be delivered to all prosecutors, and it was delivered between September last year and January this year. In particular, it incorporated the victim’s perspective and provided support on identifying evidence of hostility in order to obtain those important recorded sentencing uplifts.

I parenthesise a moment by reminding Members that section 146 is not the end of the story when it comes to how judges should sentence for offences with a disability element. There are guidelines that allow judges to look at the situation or vulnerability of the victim and their characteristics and take that into account when assessing the overall length of sentence. That message, too, has gone out loudly and clearly to all those involved in the prosecution of crime.

Members should reflect on where we hit a difficulty—perhaps we can debate this in future—which is on how to approach sentencing when it comes to people with invisible, not hidden, disability. I think in particular of learning disability and autism. Far too often, the perpetrator is able to say, “Well, I didn’t know he was autistic.” That puts the judge in a very difficult position, because they then do not have evidence of either hostility or some sort of motivational offence, or that the perpetrator even knew about the victim’s characteristics. We are getting into the debate about the eggshell skull theory, with which the hon. Member for Torfaen will be familiar, but it is a debate we need to have when it comes to how adequately we protect and support people with invisible disabilities.

I turn to the other questions that Members asked. I am glad to say that the hate crime assurance scheme is happening, and that live files are being tracked as a result. That is helping to support the quality of casework, with real-time scrutiny as cases progress.

As we have seen, that scheme is having results with an increased number of sentencing uplifts being applied. It also checks all finalised hate crime cases, so that we can identify best practice and any lessons that can be learned. In other words, and to answer the point made by the hon. Member for Torfaen, the failed applications are being looked at and that is a vital part of how we can improve our approach.

Members are aware, of course, of the 13-week consultation published by the Crown Prosecution Service in October, which sets out the approach taken by the CPS to such crimes. A plain English version of that consultation is available too, which is particularly important for people with disabilities themselves, so that they can have their voice heard. Also, the legal guidance for prosecutors will be updated and published at the same time as the consultation response, so work is ongoing.

The statement that has been provided by the CPS has been developed with the involvement of interested groups and community representatives, who have highlighted the social model of disability. That model suggests that the prejudice, discrimination and social exclusion experienced by many disabled people is not the inevitable result of their condition but instead stems from the various barriers that they experience daily and that hon. Members have talked about in this debate. That social model is the basis on which the CPS understands, dismantles and reduces the effects of those barriers, as far as we are able to, leading to improved safety and security, access to mainstream life and indeed work, where appropriate, for people with disabilities.

Last month, the CPS also published two guides on the recognition and reporting of hate crimes for individuals and agencies who might be the first to hear about a hate incident. Those guides are intended to increase public confidence and in turn improve reporting levels, so that they more accurately reflect the experience that we know people have in their communities.

We have already discussed such third-party reporting, and my hon. Friend the Member for South Ribble (Seema Kennedy) gave an example of it. I was delighted to meet the organisation she referred to when I visited CPS Manchester earlier this year. Indeed, I pay tribute to such organisations, including the one in my constituency that I mentioned earlier, and to campaigners such as Stephen Brookes MBE, who is from Blackpool and who has long championed the issue of third-party reporting, showing that where it is done well it really makes a difference for people with disabilities. My message to hon. Members, therefore, is that if, for whatever reason, they do not have third-party reporting in their community, they should ask why and see whether such provision can be improved.

The hon. Member for Bootle also asked about senior management. I am happy to tell him that I will be in Liverpool next week, at the CPS senior management conference, and he can bet his bottom dollar that I will raise the issue of disability hate crime in his home town. It is important that that is not a one-off but another example of how law officers, the Director of Public Prosecutions and senior leaders can set a good example.

On judicial meetings and the links that we have with the judiciary and the DPP, the issues that we are discussing are raised on a regular and systematic basis. Although sentencing is, of course, an independent function, we can ensure that the policy context is fully understood by those responsible for sentencing.

My right hon. Friend the Member for Forest of Dean mentioned education, and the Government have allocated—as part of our hate crime action plan—important funding to help to equip teachers to have what can sometimes be difficult but important conversations with young people, by funding programmes through organisations such as the Anne Frank Trust UK and Streetwise. Again, the training that teachers receive through those programmes will be classroom-based and of real use.

My right hon. Friend also mentioned social media. The Government are clear: whether online or offline, crime is crime and the CPS and the police will follow the evidence wherever it leads and however difficult it is to follow it. An unfortunate perception has arisen that, somehow, something online is more difficult to trace. I just do not accept that; there is a clear evidence chain there. All of us know that removing things from the internet is not as easy as it might seem—thank goodness, in the context of such offending—and the message must go out loud and clear that online abusers will be detected and prosecuted, wherever it is appropriate to do so.

I will deal with the points that have been made about the Law Commission. Its report is an important one, which I have read and considered myself. I am happy to say that, although the Government have not come to a fixed conclusion about the extension of the aggravated offences to cover all five protected characteristics, that matter is still very much under review. As a prosecutor myself in my former life, and having used such offences since they were introduced in the late 1990s, I know that they had a transformational effect and therefore I understand their power. In the meantime, however, it is very much a question of the police, the CPS and all agencies using the powers that they have more effectively.

Hon. Members mentioned the cross-Government hate crime action plan, which includes a proper emphasis on increasing awareness of and support for victims. It is clear that if a person with a disability feels that they will be taken seriously and listened to, they are more likely to come forward.

I go back to the point I made at the beginning of my speech about the importance of perception from the viewpoint of another person. We want to increase the reporting of hate crime by improving the reporting process itself, for disabled people and for people with other protected characteristics.

The CPS has played an important part in contributing to that hate crime action plan. It has made a number of commitments, which will be delivered by 2020, and I will continue—as a law officer—to work with the CPS, to ensure that perpetrators are punished and to publicise successful prosecutions, because that will create confidence among the members of a community that when hate crime is reported, action will be taken.

New guidance will be produced by the CPS—

[Mr Peter Bone (in the Chair)]

Order. I am sorry to interrupt the Solicitor General’s 20-minute speech, but Members will be aware that it is now a courtesy to allow the mover of the motion to wind up the debate.

[The Solicitor General]

I am very grateful to you, Mr Bone, for that clarification. I will conclude by saying that for far too long people with disabilities have accepted being treated as second-class citizens. That is why I commend the work of the CPS in tackling the scourge of hate crime and I again thank the hon. Member for Bootle for raising this important issue.

Oral Answers to Questions

Robert Buckland Excerpts

Thursday 21st July 2016 Commons Chamber

[Andrew Gwynne (Denton and Reddish) (Lab)]

7. What steps the Government is taking to increase the number of prosecutions for female genital mutilation.

[The Solicitor General (Robert Buckland)]

The Government significantly strengthened the law via amendments to the Serious Crime Act 2015 to improve protection of victims through lifelong anonymity and to break down barriers to prosecution. The introduction of a mandatory reporting duty for front-line professionals to identify FGM cases of girls under 18 further improves opportunities for safeguarding and prosecution.

[Lilian Greenwood]

At the age of 11, Valentine Nkoyo was forced to go through female genital mutilation. Nineteen years later she set up the Mojatu Foundation, a social enterprise in my constituency, to use her own experience to raise awareness of FGM, help protect children at risk in the UK and support survivors. Mojatu’s current project aims to create a network of media-trained community champions to help tackle the issues affecting women and girls who are at risk or living with the consequences of FGM, to increase self-reporting. What engagement has the Solicitor General had with community organisations such as Mojatu to address the low level of prosecutions for FGM?

[The Solicitor General]

I pay tribute to the work of that community organisation and many others in the network who are fighting the scourge of FGM. The hon. Lady will be pleased to note that I and other members of the Government have regular engagement with community groups. The Department of Health has provided £4 million worth of funding over the past three years in order, among other things, to enhance community engagement so that awareness can be spread and victims need not suffer in silence.

[Vicky Foxcroft]

The lack of services to support victims of female genital mutilation is often seen as a reason why so many cases are left unreported. What effect will cuts of 24% to the Crown Prosecution Service have on the reporting of FGM cases?

[The Solicitor General]

May I reassure the hon. Lady that the Crown Prosecution Service places great importance upon the need to properly investigate and prosecute, where appropriate, crimes of FGM? It was regrettable that in the years prior to 2010 not one single prosecution occurred. Cultural and other obstacles have prevented the effective investigation and prosecution of this scourge. The work of community groups and the resolution of the Government mean that that is gradually changing for the better.

[Andrew Gwynne (Denton and Reddish) (Lab)]

The Solicitor General will no doubt be aware of the European Commission guidelines on action against female genital mutilation. Notwithstanding the vote on 23 June for the UK to leave the European Union, can the Minister say whether it is still the intention of the Government to accept into British law the recommendations of the European Commission’s report?

[The Solicitor General]

With regard to the specifics, that matter needs to be considered carefully, and I will take that away with me. However, on the general principles laid out in that report, there is no doubt whatever that this Government remain fully committed to making sure that FGM is properly explained, properly challenged and properly dealt with, whether that is by prosecution, awareness in the community or other preventive measures.

[Mr Gregory Campbell (East Londonderry) (DUP)]

What steps are the Government taking to ensure that, in communities where, on occasions, a blind eye is turned to this obscenity, people understand that the law will be upheld and that the 130,000-odd young females who are affected will be protected in future, as this will affect others?

[The Solicitor General]

The hon. Gentleman is right to reiterate that community engagement and community involvement will be key in making more progress on this area. I am glad to see that, certainly in England, the Department for Education has £2.25 million of funding to invest in awareness of and education about this issue, and I think that will also have a beneficial effect.

[Stephen Kinnock (Aberavon) (Lab)]

3. What his role is in assessing the steps that will be required to separate EU law from domestic law.

--- Later in debate ---

[Andrew Stephenson (Pendle) (Con)]

10. What recent discussions he has had with the Director of Public Prosecutions on the prosecution of hate crime.

[The Solicitor General (Robert Buckland)]

I discuss this matter regularly with the DPP, and the Government will publish their hate crime strategy very shortly.

[Bob Blackman]

I thank my hon. and learned Friend for his answer. Given the terrible terrorist atrocities in Nice, Paris and, recently, Germany, many people in this country are fearful that because of their religion or the colour of their skin, they will be the subject of hate crime. What assurances can my hon. and learned Friend give to those people that we will prosecute, to the full extent of the law, anyone involved in hate crime?

[The Solicitor General]

I pay tribute to my hon. Friend for the community work he does in his constituency. Hate crime of any kind, whether it is on the grounds of disability, race, religion, sexual orientation or transgender identity, has absolutely no place in our society. We are utterly committed to tackling hate crime.

[Andrew Stephenson]

A Member of the other place recently received a vile racist letter containing white powder, as did a number of mosques and Islamic centres representing a large Pakistani heritage community in Pendle. The long-term rise in Islamophobia is a serious concern. Will my hon. and learned Friend join me in condemning these racist incidents and advise me whether he believes that the separate recording of Islamophobia as a hate crime is likely to help to bring about successful prosecutions?

[The Solicitor General]

The incident that my hon. Friend describes is despicable and shameful, and we must stand together against such hate crime and ensure that it is stamped out. Religious hate crime has been recorded separately since April of this year, at the request of the Prime Minister in her former role as Home Secretary. That will give us a greater understanding of the nature of hate crime.

[Christina Rees (Neath) (Lab/Co-op)]

Reports of hate crimes rose exponentially—by 57%—following Brexit. Is the Solicitor General confident that the Crown Prosecution Service is adequately resourced to deal effectively with these reports and support victims?

[The Solicitor General]

The hon. Lady is right to note the alarming spike in incidents of hate crime that surrounded the recent referendum and the weeks subsequent to it. I reassure her that the CPS remains absolutely committed to prosecuting all types of such crime, which, frankly, have no place in our society.

[Paula Sherriff (Dewsbury) (Lab)]

Three weeks ago, I asked the former Prime Minister, and he agreed, to look into setting up a cross-party commission on hate crime following a sharp increase, as yesterday’s statistics revealed. Can the Solicitor General assure the House that that will be achieved as a priority? Will he offer his full support to my West Yorkshire cross-party initiative to tackle these terrible acts?

[The Solicitor General]

I pay tribute to the hon. Lady, who speaks with eloquence and passion on these issues. Of course, I give her my full support with regard to the cross-party initiative in West Yorkshire. The former Prime Minister was right to emphasise that it is up to all of us, whichever side of politics we come from, to come together to tackle this scourge. We know what it can lead to, and therefore we have to stamp it out before it becomes something even more vile.

The Minister for Women and Equalities was asked—

Oral Answers to Questions

Robert Buckland Excerpts

Thursday 26th May 2016 Commons Chamber

[Diana Johnson (Kingston upon Hull North) (Lab)]

13. What assessment he has made of reasons for variations between police force areas in conviction rates for rape offences.

[The Solicitor General (Robert Buckland)]

There are a number of factors at various stages that are likely to have an impact on conviction rates for rape, but the Crown Prosecution Service is committed to improving the rate by working closely with partners in all police force areas. To provide the consistency of approach that is necessary, networks of violence against women and girls co-ordinators have been established.

[Cat Smith]

CPS national guidance suggests that improvements have been made through the appointment of rape specialist prosecutors. However, their success is entirely dependent on the evidence referred to them in the first place, as one of my constituents, who was raped while away at university, found to her distress. Will the Solicitor General comment on any link between reported offences of rape that are never referred to CPS rape specialist lawyers for a decision to prosecute and the conviction rates for rape in police force areas?

[The Solicitor General]

I am grateful to the hon. Lady, and I listened with some concern to the case she cited. I am glad to say that in her area—the north-west—the area rape and serious sexual offences unit has been generating an improvement in the conviction rate, which has gone up by almost 10% in the last year. However, she is right to talk about the earlier stages, and the co-ordination I mentioned is all about early investigative help, which should make the experience for victims better. Experience shows that attrition rates are far too high.

[Diana Johnson]

So why does the Solicitor General think there is a difference between rates in police forces, with 35% being one of the lowest rates and 80% the highest? What specifically can the CPS do?

[The Solicitor General]

The hon. Lady is right to refer to those regional variations, which are concerning. I am glad to see a strong commitment to a greater national approach to this issue. That is why the setting up of RASSO units in every area is vital. The CPS has recruited a further 102 specialist prosecutors, with a further phase of recruitment due to take place, which will help to drive conviction rates up.

[Jim Shannon (Strangford) (DUP)]

In Northern Ireland, there were more than 28,000 incidents with a domestic motivation in 2014-15, and there were 2,734 sexual offences, including 737 cases of rape. Not only are conviction rates too low across the UK, but the number of incidents is still too high, particularly considering that many victims of domestic violence do not come forward. What steps are the Government taking to reduce the number of offences? Have they considered an education programme for boys and girls in school?

[The Solicitor General]

I am grateful, as always, to the hon. Gentleman. I am happy to say that, in England and Wales, the overall number of cases being brought—not just of rape but of associated violence and sexual abuse in a domestic setting—continues to increase, which means justice for thousands more victims year on year.

[Helen Jones (Warrington North) (Lab)]

What steps has the hon. and learned Gentleman taken to ensure that the Crown Prosecution Service discusses with the police the type of evidence that needs to be on the file sent to it to secure a conviction? Has he reviewed with the Home Office police forces that are accused of putting too many rape cases in the “no crime” category without investigation?

[The Solicitor General]

To answer the hon. Lady’s latter point first, that is obviously an operational matter for the police, but the general principles and policy issues arising from it are important. That is why the Attorney General and I take great interest in the important work of the RASSO units—the specialist prosecutors—that work with the police at an early stage to identify the sort of evidence that is needed to secure convictions. The hon. Lady is absolutely right to raise that point.

[Ian C. Lucas (Wrexham) (Lab)]

2. What steps the Serious Fraud Office is taking to help prevent serious fraud and other economic crimes.

--- Later in debate ---

[Dr James Davies (Vale of Clwyd) (Con)]

11. What recent steps he has taken to promote (a) public legal education and (b) the provision of pro bono legal services.

[The Solicitor General (Robert Buckland)]

As Government pro bono champions, the Attorney General and I continue to support, through our co-ordinating committees, a number of projects that reinforce how important pro bono work and public legal information are, not just domestically but internationally.

[Bob Blackman]

Clearly the actions of certain lawyers bring the profession into disrepute, but thousands of people across the country achieve justice through pro bono work. Does my hon. and learned Friend agree that lawyers who give their time free of charge are helping justice in this country?

[The Solicitor General]

In the last financial year, £601 million-worth of work was provided pro bono by lawyers in private practice—that is, barristers, solicitors and legal executives. They recognise that the time they give makes a real difference to people who would otherwise be denied access to justice.

[Maggie Throup]

Small community-based charities that provide services such as community transport, luncheon clubs and after-school activities play an important role in our society, but they often operate under immense financial pressure. What is my hon. and learned Friend doing to encourage more law firms to provide pro bono legal services to those small charities, to help them cut their running costs and focus their resources on making a difference in our communities?

[The Solicitor General]

My hon. Friend raises an interesting point. It is right to pay tribute to the existing pro bono commitment by the legal professions, working alongside the voluntary sector, to providing trustee support and other advice to a range of local charities in both her constituency and mine, and in many other communities the length and breadth of the country.

[Mims Davies]

Does the Solicitor General believe that public legal understanding has caught up with the legal changes in relation to sexting and revenge pornography?

[The Solicitor General]

Public legal education has an invaluable role to play. I have seen at first hand in schools how the Citizenship Foundation, with the support of lawyers, runs sessions on issues such as social media and the law. The particular issue that my hon. Friend raises is extremely sensitive and important to young people in particular, and I believe that running the appropriate courses can teach them about the consequences of such criminal acts.

[Michael Tomlinson]

The legal profession may have its detractors, but one of its finest traditions is that lawyers are encouraged to undertake pro bono work. What more can be done to take pro bono work into our schools, both in Dorset and across the country?

[The Solicitor General]

I am grateful to my hon. Friend, who, as a barrister of some distinction in the south-west, speaks from experience about his work and the role of pro bono in the profession of which he and I are part. I urge him to liaise with law firms in his constituency, which he will know well, to spread that work through schools and colleges in his part of Dorset and the wider area.

[Mr Speaker]

I am sure that the hon. Member for Mid Dorset and North Poole (Michael Tomlinson) will put that tribute on his website in a matter of minutes.

[Dr James Davies]

I thank the Solicitor General for his replies on this topic. How can the Government further help the efforts of charities such as LawWorks, a pro bono legal advice service supported by the Law Society that targets the most needy and has offices across the UK?

[The Solicitor General]

My hon. Friend is right to mention LawWorks, which has been an active member of the pro bono co-ordinating committee for several years. Since October 2014, the Ministry of Justice has provided funding for the litigant in person support strategy, which is designed to help third sector organisations deliver increased support to litigants in person. I am sure that he will put that on his website.

[Rob Marris (Wolverhampton South West) (Lab)]

I have done a fair bit of pro bono legal work in my time as well. It is often a substitute for inadequate access to legal aid, which was greatly cut under the last Government. Will this Government consider using interest on client account for legal aid? Each solicitor in private practice has to have a client account in which the client’s money is kept separately and earns interest. In some jurisdictions, such interest is used to fund legal aid. The Government should consider that for England.

[The Solicitor General]

I appreciated the constructive part of the hon. Gentleman’s question, and my colleagues in the Ministry of Justice should look at the idea. I am cautious about compulsion, however, because one of the great things about pro bono is that it is voluntary. It is all very well for him to criticise the Government for cuts to legal aid, but he will remember, because he was a Member of Parliament at the time, the so-called Access to Justice Act 1999, when a Labour Government destroyed civil legal aid, so I will not take lectures from the Labour party.

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

I have always been a supporter of pro bono work—both while I was a practising barrister, before I entered this House, and since—but does the Solicitor General agree that because pro bono work is voluntary, as he said in his last answer, that is precisely why it could never be used as a policy solution to sort out the Government’s cuts to legal aid?

[The Solicitor General]

As the hon. Gentleman well knows, neither the Attorney General nor I—nor, indeed, the Government—advocates pro bono as a substitute. It is an adjunct to legal aid, and it always should be.

[Mr David Hanson (Delyn) (Lab)]

Nobody will deny the worth of pro bono, and everybody will welcome it, but as my hon. Friend the Member for Wolverhampton South West (Rob Marris) said, it is no substitute for access to justice. So that we know which areas get that justice, will the Solicitor General agree to publish a list of how many hours of pro bono are available in each geographical area? That would help us to know whether there is access to justice.

[The Solicitor General]

With respect to everybody who works in the pro bono area, I do not want to detract from the important work of pro bono by pretending that it is somehow a legal aid service. It is not; it is voluntary. It is a vital part of what it is to be a lawyer. Not only does it provide a benefit for those whom it serves, but it is an important part of the career development of lawyers. The Conservative party is committed to funding our legal services, and we are spending just short of £2 billion a year on legal aid. It sits very ill for the Labour party to lecture us about the amount we spend on legal aid when it merrily cut legal aid while in office.

[Karl Turner (Kingston upon Hull East) (Lab)]

I declare an interest in that my wife is a part-time tribunal judge and legal aid lawyer.

We all praise the work of lawyers who give up their time to offer advice and assistance, just as we praise law centres and citizens advice bureaux, but does the Minister agree that those individuals and organisations cannot possibly fill the gap left by the Legal Aid, Sentencing and Punishment of Offenders Act 2012? In April 2010, more than 470,000 people received assistance on social welfare matters. Just 12 months after LASPO, the number was down to 53,000—a drop of 90%. Will the Minister please urge the Justice Secretary to bring forward the promised review of LASPO?

[The Solicitor General]

I hear what the hon. Gentleman says. Again, although I think it is absolutely right for us to celebrate the work of barristers, solicitors and legal executives in providing pro bono work and public legal education, this country still enjoys one of the most generous and widespread legal aid systems in the world. That is something of which we should be proud and which we should celebrate. It is absolutely wrong for the Labour party to seek to take the moral high ground given that I watched it cut the legal aid system during its 13 years in power.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

5. What assessment he has made of reasons for variations between police force areas in conviction rates for disability hate crimes.

[The Solicitor General (Robert Buckland)]

A number of factors are likely to have an impact on the variation in conviction rates for disability hate crimes. I am actively considering them, and I believe that the best practice to provide consistency of approach is the network of hate crime co-ordinators that the Crown Prosecution Service has established, which includes a focus on the important issue of disability hate crime.

[Debbie Abrahams]

I thank the Solicitor General for his response, but there were an estimated 62,000 disability hate crimes in 2013, only 574 of which resulted in prosecution. As he said, there was huge regional variation in the prosecution rate. Is he as concerned as I am about that, and will he be a bit more specific about how he will address it to ensure that convictions for disability hate crime do not depend on where people live?

[The Solicitor General]

I am extremely grateful to the hon. Lady, who will know that I have a long-standing interest in the issue. In fact, I travelled to her region, the north-west, some months ago and met a local advocacy group based in Preston that deals with third-party reporting. Naturally, a lot of people with disabilities do not have the confidence to go straight to the police. I believe that through third-party reporting mechanisms we can bridge the gap between the 62,000 cases she mentioned and the small number of prosecutions. We have to improve that rate.

[Keith Vaz (Leicester East) (Lab)]

These are terrible crimes. One of the problems is inconsistency between police areas. Does the Solicitor General agree that an important role for the College of Policing is to make sure standards are consistent throughout the country?

[The Solicitor General]

The right hon. Gentleman is correct in his assumption. There was an invaluable round table at the national College of Policing in September, which I attended and spoke at, involving regional leads from all parts of the country. It was designed precisely to deal with hate crime, and disability hate crime in particular. By sharing best practice, such as the third-party reporting mechanisms I mentioned in my answer to the previous question, we can improve and raise the rates in relation not just to hate crime but to all crimes committed against people with disabilities.

Investigatory Powers Bill (Fifteenth sitting)

Robert Buckland Excerpts

Committee Debate: 15th sitting: House of Commons
Tuesday 3rd May 2016 Public Bill Committees

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve again under your chairmanship, Ms Dorries. I have listened carefully to what the hon. and learned Gentleman and others have said about their concerns regarding the provisions, but may I reassure him and put to bed the notion that somehow this is a back door or a blank cheque to allow the authorities to do what they like when it comes to interference with the privacy of individuals? Far from it. I will explain as far as I can the purpose of the type of warrantry, particularly the national security notice, that we are talking about, and indeed the technical proficiency provisions as well.

An example of the type of support that might be required would be the provision of services or facilities to help the intelligence agencies in safeguarding the security of their personnel and operations. A notice might typically require a communications service provider to provide services to support secure communications by the security and intelligence agencies—for example, by arranging for a communication to travel via a particular route in order to improve security. A notice may additionally require the confidential provision of services to the security and intelligence agencies within the communications service providers, such as by maintaining a pool of trusted staff for the management and maintenance of sensitive communications services. I hope that gives the hon. and learned Gentleman some insight into what we are talking about here.

[Keir Starmer]

I am grateful for that indication, but I am not sure why that is an argument for not subjecting what could be a wide-ranging power to the double-lock mechanism, which has been the preferred safeguard for such powers in the Bill.

[The Solicitor General]

There are clear reasons for not going down that route. We are talking about the preparatory stage as opposed to the stage of interference with privacy. If the Government’s position was that there was a loophole—a gateway—to allow such interference, the hon. and learned Gentleman’s argument would have real strength, but that is far from the case. This is all about the preparatory stages—the necessary stages that need to be taken by communications service providers before we get to the application for what we all accept is an intrusion.

I am afraid I cannot share with hon. Members their analysis that we need a “now and forever” definition of national security in law. There is a good reason why national security is not defined in statute. Any attempt to define it in the Bill runs a real risk of restricting the ability of this country to respond to constantly evolving and unpredictable threats. It is vital that legislation does not, however unintentionally, constrain the ability of our security and intelligence agencies to protect this country. The examples are all around us: who would have imagined a few years ago cyber-attacks of the nature and on the scale that now threaten us? My concern is that if we try to rigidly define what we mean by national security, we run the risk of defeating the means by which we can keep this country safe.

[Joanna Cherry]

I hear what the Solicitor General says about the measure only facilitating preparatory steps, but under the terms of clause 218(8) we will never know whether the notices exist or their contents, so we will not be able to know whether we are dealing with preparatory steps or whether they could go beyond that.

[The Solicitor General]

I have gone as far as I can to explain the types of scenarios that the national security notices would be used for. In essence, they deal with the nuts and bolts rather than the intrusion. If somehow there was a gateway into intrusion, the hon. and learned Lady would be absolutely right, but I assure her that there is not, so the worries that she and other people and organisations have about a blank cheque, while understandable, are unfounded. I can assure her in Committee and I am happy to continue to make the assurance that the function of this type of notice is not intrusion.

Indeed, we have oversight because national security notices will be overseen by the Investigatory Powers Commissioner. The commissioner will have a duty to report at least once a year on what he or she has found and to make recommendations on where improvements can be made. The commissioner will also have the power to report on an ad hoc basis on any issue that he or she considers appropriate.

[Keir Starmer]

I am listening carefully to the Solicitor General. He says that the notices are not a gateway for preparatory steps to become steps that invade privacy, but where in the Bill is the provision that prevents that happening? The only restriction is subsection (4), which does not achieve that end.

[The Solicitor General]

With respect, I do not think that is necessary because any agency that sought to use this type of notice in order to get around the double-lock provisions in the Bill would soon come a cropper with the commissioner. That important oversight means that organisations are not operating in a vacuum; they will be held to account if they try to misuse these notices in the way that the hon. and learned Gentleman and others fear.

As I have said, we have the powers of review by the IPC. We also have the provision, pursuant to clause 220(5)(b) and (7), that the Secretary of State must consult the commissioner if a notice is reviewed, and the commissioner will then consider the proportionality of the matter before reporting conclusions to the Secretary of State. We have the checks and balances that the hon. and learned Gentleman rightly wants within the mechanism.

On amendments 853 and 854, I would say this: the role of the Secretary of State in issuing national security notices rightly reflects the responsibility of the Executive in protecting our national security; conversely, the role of the judicial commissioner in approving the issuing of warrants under the Bill reflects the particular and proper sensitivity regarding interference with private communications. We have got the double lock in place to ensure that, before the fact, a senior judge has to be satisfied that any interference with privacy is justified. The Bill explicitly prohibits—this is an important point—the issuing of national security notices for the primary purpose of obtaining private information, and the double lock then applies to the use of the most sensitive powers. We need to focus on the need for the double lock in relation to applications that result in the acquisition of private information. These types of notices do not permit the authorities to do that, so the amendments are unnecessary.

Amendments 845 and 855 deal with technical capability notices. Clause 217 builds on the current power provided for under the Regulation of Investigatory Powers Act 2000, where a company can be obliged to maintain a permanent interception capability in order to ensure that when a warrant is served, a company has the infrastructure in place to give effect to it securely and quickly. Again, any warrant served will have been reviewed by a judicial commissioner; he or she will play an important part in overseeing the operation of technical capability notices and any appeal that may be lodged against them. The commissioner will also be consulted about the making of regulations that will provide more detail about the operation of these types of notices, and those regulations will be put before Parliament for approval. Plenty of the checks and balances that the hon. and learned Member for Holborn and St Pancras, others interested in Bill and I would expect and want to see are here.

I am not persuaded of the need for amendments 852 and 859, because clause 220 already sets out the role of the IPC in the process of review and the actions that the Secretary of State must take in that process. The IPC will be integral to any review, because the Secretary of State must consult the commissioner, who will then consider whether the notice is proportionate. Inevitably, considerable weight will be afforded to the advice of the commissioner. The role of the commissioner provides an opportunity for the person on whom the notice has been served and for the Secretary of State to present evidence. The conclusions of the commissioner will be reported to the Secretary of State and to the person who has made the reference. After consideration of the conclusions, the Secretary of State may decide to confirm the effect of the notice, to change or vary it, or to withdraw it. Until that decision is made, there is no requirement for the person who has referred the notice to comply with the specific obligations under review.

In a nutshell, there are plenty of adequate safeguards to alleviate the concerns expressed by the hon. and learned Gentleman. I urge him to withdraw his amendments.

--- Later in debate ---

[Joanna Cherry]

I respectfully support everything that the hon. and learned Gentleman has said.

[The Solicitor General]

In arguing in opposition to the amendments, I first want to address the last point that the hon. and learned Member for Holborn and St Pancras made. I can come back to his point about the tests, but in a nutshell, they are inherent to the Bill. The tests of necessity and proportionality are part and parcel of the decision-making process that the authority will be enjoined to carry out.

[Keir Starmer]

It is noticeable that, for obvious reasons, necessity and proportionality have been written into relevant clauses throughout the Bill, but here, I think for the first time, we have a wide-ranging power with no such test—unless I have missed it, in which case I will happily concede the point.

[The Solicitor General]

In strict terms, the hon. and learned Gentleman is right—I am looking at clause 218 in particular. I think that subsection (3) might help him, because although we do not have the words “necessity” and “proportionality” there, the matters to be taken into account lead one to conclusions based on necessity and proportionality, and perhaps do so in a more prescribed way that is more helpful to the decision maker. Subsection (3)(a) to (e) addresses the hon. and learned Gentleman’s point, and I put it clearly on the record that the principles of necessity and proportionality are part and parcel of the tests to be applied.

I also note that necessity is required under clause 217(6), which relates to the steps specified in a technical capability notice. I do not know whether that helps the hon. and learned Gentleman. I will certainly consider the issue carefully, but on the face of it, I do not think there is a worry of the sort that he envisages.

[Joanna Cherry]

The Intelligence and Security Committee described the clause as a

“seemingly open-ended and unconstrained power”.

Does the Solicitor General not agree that it is therefore essential that the tests of necessity and proportionality are spelled out in the clause, as they are in other parts of the Bill?

[The Solicitor General]

I hear the hon. and learned Lady, but I am not convinced that the basis of her argument is right given the breadth of the power. As I said in the context of national security notices, the technical capability notice is only a preliminary step. It will allow the subsequent implementation of a warrant, which will then be subject to the tests of necessity and proportionality. I would not want the Committee to operate under a misapprehension. It is my strong, and I hope clear, assertion that we are dealing with an earlier stage of the process, so we should not be driven to the conclusions that I know critics of the Bill want us to reach.

May I deal with encryption, which, as the hon. and learned Gentleman rightly characterised, is at the heart of the matter? I put it on the record that the Government recognise the vital importance of encryption. It has become part of our daily lives. It keeps our personal data and intellectual property secure and ensures safe online commerce, and the Government work closely with industry and business to improve their cyber-security. I can reassure the Committee that in the preparation of the code of practice, there has been close consultation with the interested parties in the industry to ensure that it comprehensively reflects the realities and needs of those who operate in this sphere. Not only does the code of practice replicate the provisions of RIPA, but it goes further, with a degree of specificity that is not possible in primary legislation. It will be a flexible, living instrument that will form a clear prospectus within which everyone can work. I make no apology for the measure being in a code practice, which is where it should be, rather than in primary legislation. With the best will in the world, we all know that it is difficult to amend primary legislation and ensure that it keeps pace with the somewhat breathtaking changes that occur in this particular field of operation.

I also want to talk about the role of GCHQ, which plays a vital information assurance role and provides advice and guidance to allow the Government, industry and the general public to protect their IT systems and use the internet safely. As the director of GCHQ, Robert Hannigan, made clear in his speech on 8 March:

“I am accountable to our Prime Minister just as much, if not more, for the state of cyber security in the UK as I am for intelligence collection.”

In the past two years the security and intelligence agencies have disclosed vulnerabilities in every major mobile and desktop platform, including some of the big names that underpin business here in the UK. In September 2015, Apple publicly credited CESG, the information assurance arm of GCHQ, with detecting a vulnerability in its operating system for iPhones and iPads, and we all know where that vulnerability could have led. The vulnerability was fixed as a result of that intervention, so the suggestion, which I know has not been advanced in this Committee—and I hope will not be—that the Government are opposed to encryption, or would legislate to undermine it, is wholly wrong.

We have to ensure that we have the necessary capabilities to keep our systems safe. Encryption is now, in effect, the default setting for most of our IT products and online services, and although it can be a power for good in keeping the law-abiding safe and secure, sadly it is used easily and all too cheaply by terrorists, paedophiles and other criminals. Therefore it can only be right that we retain the ability to require telecommunications operators to remove encryption in strictly limited circumstances, with strong controls and safeguards, so that we can address the increasing technical sophistication of those who would seek to do us harm. If we do not do that, we must simply accept that there are areas online that are beyond the reach of the law, where criminals can go about their business unimpeded and without the risk of detection. I do not accept that, and I know the general public do not accept it either. That is our starting principle.

[Joanna Cherry]

Clause 218(8) and (9) provides that the recipient of a notice must comply with it but must not disclose either its existence or its contents. Does that mean that if an Apple against the FBI scenario were to occur in the UK, Apple would not be able to disclose even the fact that it had been served with a notice, let alone challenge it in court? That is how I read it.

[The Solicitor General]

Not without the permission of the Secretary of State. I will return to the mechanism in question, but I am grateful to the hon. and learned Lady for raising that point. I am sure I will be able to provide her with clarity as I develop my remarks.

The starting principle is shared by David Anderson, who in his important review said:

“My first principle is that no-go areas for law enforcement should be minimised as far as possible, whether in the physical or the digital world.”

That view was shared by the Joint Committee on the draft Bill and is shared by the Select Committee on Science and Technology, both of which recognise that, in tightly prescribed circumstances, it should remain possible for our law enforcement and security and intelligence agencies to be able to access decrypted communications or data. That is what clauses 217 and 218 are all about: strong safeguards to ensure that obligations to remove encryption can be imposed only in limited circumstances, subject to rigorous controls.

--- Later in debate ---

[Keir Starmer]

I looked carefully at that subsection, but perhaps the Minister could explain why it is a limiting provision. It is a requirement provision as far as the notice is concerned, but on the face of it, encryption is not limited to protection applied by, or on behalf of, the person themselves. It tells us how that situation would be dealt with, but it is not limited to that.

[The Solicitor General]

I have been interested in the clause for a while, because there are issues about what “relevant notice” means, for example. I assure the hon. and learned Gentleman that that applies only to technical capability notices, not national security notices. I will carefully consider how we can make that absolutely clear, and in that context I will have another look at the how the clause is worded. I want to put beyond any doubt the fact that the clause relates only to a technical capability notice and does not relate to third parties. That has been an important undertaking that we have given.

[Mr Hayes]

Deliberating on the interesting discourse that has taken place between the Solicitor General and the hon. and learned Member for Holborn and St Pancras, I take the point that the hon. and learned Gentleman makes about necessity and proportionality running as a theme throughout the Bill. My hon. and learned Friend the Solicitor General is of course right that these are preliminary measures, and therefore once an outcome that has been tested for proportionality has been reached, that will not be a problem. I say to him that there is an argument for taking that into account and making it even clearer, either in the supporting documentation or in the Bill.

[The Solicitor General]

I am grateful to my right hon. Friend, and I will do that.

Before I go further, I will deal with the point that the hon. and learned Member for Edinburgh South West made about Apple. My understanding is that the process will give her some reassurance. In that scenario, Apple, as the recipient of the notice, could refer it back to the Secretary of State, who in turn must then consult the technical advisory board and the IPC before deciding whether to proceed further with the notice. If the Secretary of State proceeded, it would then be judicable in the courts, which would determine whether the notice could be enforced. It is quite similar to the scenario that we discussed in the context of national security notices. I hope that gives her some assistance.

[Keir Starmer]

I have looked at this issue in the past day or two, and I was concerned about the implication that on the face of it, one could not challenge the provision in court, because there is an absolute bar on disclosure. Am I right in assuming—if I am, it should be on the record—that the Secretary of State will give permission, where appropriate, for a legal challenge to be brought? In other words, there could be disclosure for the purposes of legal proceedings.

[The Solicitor General]

On the face of it, that has to follow. If any clarification is needed on that, I am sure I can assist as I further develop my remarks.

I was dealing with the process of consultation before the giving of a notice, and we have had the Apple example. I would like to develop the importance of the draft codes of practice, which the hon. and learned Gentleman has referred to.

[Suella Fernandes (Fareham) (Con)]

The Solicitor General is talking about the power of review in clause 220, which should be read with the power to issue notices. That is important because it obliges the Secretary of State to consult the technical advisory board and the Investigatory Powers Commissioner. That process was endorsed by EE, a communications service provider, in its evidence to the Joint Committee on this very point.

[The Solicitor General]

I am grateful to my hon. Friend, who provides an example of the sort of dialogue that will be very much part of the process. There will not be mere diktat without further discussion. I was about to develop that point in the context of the draft codes of practice, because they make it clear that should a telecoms operator have concerns about the reasonableness, cost or technical feasibility of any requirements set out in a notice, which of course would include any obligations to remove encryption, they should be raised during the consultation process. That is the dialogue that we have talked about. Also, a telecommunications operator that is given a technical capability notice may refer any aspect of it—again, I gave an example earlier—including obligations relating to removal of encryption, back to the Secretary of State for review. We have dealt with the consultation process set out in the Bill.

The Bill makes it absolutely clear that in line with current practice, obligations placed on telecommunications operators to remove encryption may relate only to encryption by or on behalf of the Government. That is the point I was making about subsection (4).

[Lucy Frazer (South East Cambridgeshire) (Con)]

I wonder whether clause 217(3) is relevant in the context of what we are discussing. It shows that the Secretary of State can impose the requirements only in so far as they are practicable. The Secretary of State will be prevented from requiring a service provider to do something that it cannot do, for example because a third party has encrypted the material and it is not physically capable of assisting.

[The Solicitor General]

I am grateful to my hon. and learned Friend, who is right to pray in aid that subsection, which sets out the bones on which we flesh out the procedure in the code of practice.

[Christian Matheson]

I am getting a bit confused. My understanding was that these provisions applied only to communications service providers. I think it was the hon. and learned Member for Edinburgh South West who raised the question of Apple, which to my mind is not a communications service provider, but the Minister responded in the same terms. Will he clarify who exactly we are talking about and who the provision is intended to cover?

[The Solicitor General]

The hon. Gentleman is right to make that important point and to steer us back on to the straight and narrow. I am not criticising the Committee for trying to bring the Bill to life with some examples. We are indeed talking about communications service providers, not third parties, which is important in the context of the Bill.

[Joanna Cherry]

Are we not concerned here with the “relevant operator”, which is defined in clause 217(2) as

“a postal operator…a telecommunications operator, or…a person who is proposing to become a postal operator or a telecommunications operator.”?

That definition is the basis of the concern for companies such as Apple.

[The Solicitor General]

The hon. and learned Lady is absolutely right to bring us back to clause 217(2). The problem that hon. Members are anticipating is that the provisions will somehow catch parties that no one would regard as appropriate. I think I have given clear assurances on that third party problem.

[Sir Simon Burns (Chelmsford) (Con)]

I am very grateful to my hon. and learned Friend, and I do not want to be unhelpful, but I would like some clarification regarding Apple. As he is aware, Apple refused to do what the FBI asked. Although the case was never ultimately determined by the courts, because the FBI managed somehow to break open the machine and retrieve the information, how would the clause affect a similar situation if a provider such as Apple refused point-blank to co-operate, just as it did with the FBI?

[The Solicitor General]

In endeavouring to answer my right hon. Friend’s point, may I deal first with the question about telecommunications operators? Some assistance may be gained from clause 223(10), where a telecommunications operator is defined in a way that includes Apple. The famous Apple case—the California case—was about the use of a password, which is slightly different from the question of encryption, but it does demonstrate the important tussle between the need to balance public safety and privacy. In that case, the FBI, with an appropriate search warrant, was asking for the chance to try to guess the terrorist’s passcode without the phone essentially self-destructing—after so many tries, everything gets wiped.

We are talking about an attempt to obtain communications data within the robust legal framework that we have set out, with the double lock and all the other mechanisms that my right hon. Friend and the Committee are familiar with. I am grateful to him for raising that case, but there are important differences that it would be wrong to ignore. In a nutshell, without the powers contained in the Bill, a whole swathe of criminal communication would be removed from the reach of the authorities. That is not in the interests of the constituents he has served with distinction for well over a quarter of a century—he will forgive me for saying that—or any other of the constituents we represent.

I was going to come back to the obligations imposed under a technical capability notice, with particular regard to the removal of encryption. The obligations imposed under such a notice will require the relevant operator to maintain the capability to remove encryption when it is later served with a warrant notice or authorisation. That is different from merely requiring it to remove encryption. In other words, it must maintain the capability, but there then needs to be the next stage, which is the warrant application and the notice of authorisation, where there is of course the double lock. The company on which the warrant is served will not be required to take any steps, such as to remove encryption, that are not reasonably practicable.

In a nutshell, this measure is about not an interference with privacy but sets out the preparatory stage before a warrant can be applied for. The safeguards provide the strict controls that I assure the Committee are needed in this sphere of activity. We are maintaining and clarifying the existing legal position.

[Joanna Cherry]

I am anxious to clarify what the Solicitor General said about the justiciability of the issuing of such a technical notice. As far as I can see, the Secretary of State is the gatekeeper to justiciability, because the contents of a notice can be revealed only with his or her permission. Where does it say that that can be justiciable, because I cannot find it?

[The Solicitor General]

I think it is clause 220, but I will get some further assistance on that point for the hon. and learned Lady before I resume my seat. I am grateful for that intervention.

The Bill does not drive a coach and horses through encryption. It does not ban it or do anything to limit its use. A national security notice—we debated this matter on clause 216—cannot require the removal of encryption, which further supports my argument that there is no blank cheque in the context of these notices. On the issue of civility, rather than keep this Committee waiting, I will write to the hon. and learned Lady to clarify the point that she rightly raised.

[Victoria Atkins (Louth and Horncastle) (Con)]

This is a general point. Although we are examining this Bill in detail, there will of course be an ongoing debate, particularly as the technical companies tussle with the public, about what the public find acceptable. Those companies should not think that the debate ends here; they will have to justify their actions to the public in future.

[The Solicitor General]

My hon. Friend is absolutely right. The code of practice has been drafted in that real-life context. It will no doubt be amended and looked at—it will be a living document—as this technology develops and as we move forward. With this clause, we are trying—I do not like this phrase, but I have to use it—to future-proof the legislation to make it resilient so that it lasts and to ensure that this House does not have to return to it time and again to respond to the challenges that increased and enhanced IT present.

[Lucy Frazer]

My hon. and learned Friend referred to clause 220, which indeed does give the person who receives the notice the power to give it back to the Secretary of State, who then has to consult the Technical Advisory Board and the Investigatory Powers Commissioner, who will then take evidence from those people.

--- Later in debate ---

[The Solicitor General]

I am glad that my hon. and learned Friend has reminded us of that. I referred earlier to that consultation process. The next stage is when the Secretary of State decides to proceed. I will consider that issue even more carefully to ensure that the Committee is furnished with as much information as possible before Report.

Let me deal with the amendments tabled in the name of the hon. and learned Member for Holborn and St Pancras and others. On amendment 846, the Bill already makes it absolutely clear that a communications service provider will not be obligated to remove encryption where it is not reasonably practicable for them to do so. I do not think the amendment adds anything, and in many cases it would have the effect of inhibiting law enforcement agencies and the security and intelligence services from working constructively with tele- communications operators as the technology develops. I am sure that that is not the intention of the amendment. Depending on the individual company and the individual circumstances, it may be entirely sensible for the Government to work with a company to determine whether it would be reasonably practicable for it to take steps to develop and maintain the technical capability to remove the encryption it has applied to communications or data.

My worry about the amendment is that we would end up with communications services that can be used by criminals and others to communicate with each other unimpeded. We know that internet gambling sites, which have chat room provisions, are used by criminals for entirely unrelated criminal activities. I am sure that that is not the intention behind the amendment. Therefore, with respect, I urge hon. Members to reconsider it.

I will not deal in detail with amendment 847, because I do not think the hon. and learned Gentleman seeks to press it. Although I oppose it, I will move on without argument to amendments 848 and 858. We have discussed similar amendments on extraterritoriality in relation to other powers in the Bill. I pray in aid the arguments I used earlier. The provisions in the Bill allow a notice to be given in the most appropriate manner, taking into account the preferences of each company, which is an example of the adaptability of the legislation to the real world.

Amendment 848 is unnecessary because the clause is about not the acquisition but the development and maintenance of a technical capability. Conflict of law issues are much more likely to arise in respect of giving effect to a warrant, and we already have protection in the Bill for such cases. Admirable though the amendment may seem, it is therefore unnecessary.

Amendment 849 is unnecessary because it duplicates provisions in clauses 218, 216 and 217. I have discussed clause 218(3), which stipulates that the Secretary of State must consider a wide range of matters before giving a notice. That detailed assessment already speaks to the issues raised by the amendment. The Secretary of State has to be satisfied that the conduct is proportionate, justified, necessary and practicable.

[Joanna Cherry]

I am sorry to interrupt the Solicitor General’s flow, but I sense he is coming to the end of his argument. Will he clarify something? Am I right in understanding that there is nothing in the clause to prevent someone who is intent on evading surveillance from using open-source encryption software that is personally generated by the user? That would mean they could encrypt files and email communications themselves, independent of any provider, and therefore remain untouched by this legislation.

[The Solicitor General]

That question is about the definition of the provider. I am sure we will be able to provide some clarity on that before I draw my remarks to a conclusion. I am grateful to the hon. and learned Lady for raising that point.

Amendment 850 relates to consideration by the Secretary of State of the effect of a notice on the privacy and human rights of people both here and outside the kingdom. The amendment is unnecessary because of the point I made before, which I will reiterate: the clause is not about notices authorising an interference with privacy. A warrant provided for elsewhere in the Bill is required to do that, and we have already considered the potency of the double lock and the test to be applied. A point that is relevant to all the amendments in this group is the statutory function of the Investigatory Powers Commissioner to oversee the use of notices. I raised that in the context of national security notices, and I pray it in aid here again.

Amendment 857 seeks to narrow the category of operators to whom a technical capability notice can be given. I am worried that that would limit the effects of law enforcement. We know about the diversification of criminality and terrorism in order to find new ways to avoid protection. I am concerned that narrowing the legislation would allow loopholes to get larger. It is therefore important that the obligations relating to the technical capabilities for a range of operators can be imposed by the Government in order to ensure we keep ahead of the curve.

The hon. and learned Lady made the powerful point that the clause does not relate to personally applied encryption. However, measures in part 3 of RIPA 2000 provide for where law enforcement agencies can require an individual to remove encryption that he or she has applied themselves. We know that the Bill generally does not cover all the agencies’ powers. This is perhaps a welcome opportunity to remind ourselves of the existing provisions in part 3, so I am grateful to her.

Of course we accept that it may well be appropriate to exclude certain categories of operator from obligations under the clause—I am thinking, for example, of small businesses; we are always mindful of the burden of regulation on small businesses—but it is our intention to use secondary legislation to achieve that. It would not be appropriate in primary legislation to impose blanket exemptions on services with a communications element that are not primarily communications services. To do so would send a rather alarming and clear message to terrorists and criminals that communications over certain systems will not be monitored. That sort of carve-out recalls the point that I made about the use by criminals of seemingly unrelated or innocuous communications channels in other internet facilities or apps, in order to hide their illicit enterprises.

I know that I have taken up an inordinate amount of the Committee’s time. I am obliged to the Committee and to you, Ms Dorries, for your indulgence. I hope that I have set out the reasons why I urge hon. Members to withdraw the amendment, and I pray in aid my arguments as advancing the case that the clause should stand part of the Bill. I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I have only three issues to address. The first, which requires more attention from the Solicitor General—I say so with no disrespect—is the question of the extent of the prohibition on disclosure and, essentially, access to the courts or appropriate tribunals. On the face of it, clause 218(8) is a prohibition on disclosure, save with the permission of the Secretary of State. With respect to Committee members, I do not think that clause 220 provides the answer, because that deals with the consultation exercise where a notice is being reviewed.

I have no doubt that, if the Secretary of State exercised her power under clause 218(8) to prevent access to the courts, it would run straight into an article 6 access to courts argument that would succeed on judicial review. I had assumed that one could read into the clause by implication that permission would not be refused in a bona fide and proper case where access to court—or the relevant tribunal, which may be a better way of putting it—was an issue. If that were made clear for the record or by some redrafting of the clause, it would help. As I said, I think that, in practice, any court in this jurisdiction would strike down pretty quickly a Secretary of State who sought to prevent access to the court.

[The Solicitor General]

I think that the hon. and learned Gentleman is right about that. On that basis, I will have another look at clause 218(8), to get it absolutely right. I reassure him that it is not the Government’s intention to preclude access to the court.

[Keir Starmer]

I am reassured. I am sure that that would not be the case, but it might be sensible to clarify that rather than relying on clause 220, because I am not sure that that is the right way to do it. However, I will say no more about that.

I was going to press for votes on amendments 846 and 849, but I have listened carefully to what the Solicitor General said and to what the Minister said when he rose to make some observations earlier. They are by far the two most important amendments. Amendment 846 deals with encryption. I think I heard the Solicitor General say that he will look again at the wording of clause 218(4) to see whether it is possible to make clear what is clear in the code of practice, namely, that an obligation placed on a CSP to remove encryption relates only to electronic protections that the company itself has applied to intercepted communications and secondary data. That is clearly the position that the Government adopt, because it is now set out in the code. I think that the Solicitor General might accept that, at the moment, clause 218(4) does not quite achieve that objective. On the basis that he is prepared at least to look at that again, I will not press amendment 846.