Counter-Terrorism and Security Bill

Debate between Diana Johnson and David Davis

Tuesday 16th December 2014 Commons Chamber

[Diana Johnson]

This group of amendments relates to the Government’s plans to create a privacy and civil liberties board. Clause 36 does not actually tell us very much—it is an enabling clause—so I have tabled amendments 24 and 25 to allow us to debate what the board will actually do.

As the clause is drafted, we have a name for the board, and there are three possible ways it could go. First, we have an idea of what a privacy and civil liberties board could look like from its name, which invokes the idea of a body with a wide remit of work on privacy and civil liberties issues in the United Kingdom, and which would safeguard human rights. Such a body would be very similar to the Joint Committee on Human Rights, which was created by a Labour Government.

Secondly, the Home Office has published terms of reference, which suggest a body that will support the independent reviewer of terrorism legislation in providing oversight of counter-terrorism legislation in the UK and investigating the operation of that legislation. We think that what is contained in the terms of reference is sensible and would provide both capacity and openness in the oversight of counter-terrorism policy. However, as I have said, clause 36 is quite an empty provision at the moment.

The third possible version of the board is as currently constituted in clause 36, which gives the Home Secretary powers to create—in future, if she wishes to do so—procedures, membership and the work plan for the board and provisions on publishing of reports. All those details are left to future secondary legislation.

If the body is created it is important that it has strong powers. Our amendments 23 to 26 would help achieve that. The post of independent reviewer of terrorism legislation has been around for over 40 years and its current formulation was created by a Labour Government. The post works well, and both holders of it since 2001 have served with real distinction. That does not mean that we are opposed to further strengthening of the oversight arrangements. Earlier this year, the current independent reviewer, David Anderson, QC, identified the limitations of his reviewer role, including the fact that it was restricted to certain statutes and the fact that significant powers, including those in the Counter-Terrorism Act 2008, were excluded and were therefore going unreviewed. He also pointed out that as a part-time reviewer without proper administrative support, he has extremely limited capacity.

[Mr David Davis]

I guess that the precursor of the proposal is the organ with exactly the same name in the United States, which was activated only after the Snowden events, when information was not just put in the public domain but became controversial and raised issues in Washington. The danger is that the body becomes toothless, does not have investigatory powers and cannot pre-empt a future Snowden. It seems to me that the most important aspect of that is the investigatory powers, not the rest.

[Diana Johnson]

I am sure that the right hon. Gentleman will contribute to the debate, and I certainly have things to say about the title of the body and what it will be doing.

It is important to note what David Anderson said about being a part-time reviewer without proper administrative support and limited capacity. If the proposals on clause 36 were meant to address those concerns, they do not achieve that. They do nothing to address the areas of counter-terrorism legislation excluded from the remit of the commissioners, such as those in the 2008 Act, the powers in this Bill or use of the royal prerogative. David Anderson notes:

“These omissions reduce confidence in counter-terrorism law and are hard to understand, particularly after the Home Secretary agreed, as recently as March 2013, that ‘the scope of the Independent Reviewer’s responsibilities should keep pace with changes to primary legislation’, and accepted in principle my recommendation that the 2001 and 2008 Acts ‘should be examined with a view to extending your statutory functions to include the review of relevant sections of those Acts’. Indeed, as initially proposed in July, the functions of the PCLB would have extended to both these Acts.”

The Bill does not address issues of capacity and resources for the independent reviewer, either, although the impact assessment suggests that the board will receive far greater resources than those given to the independent reviewer. The cost of members of the board seems to take up much of that, and the impact assessment anticipates that the rate will be £897 a day. Is that correct and will the Minister comment on it?

The work that members of the board will do is not clear, either. The current reviewer describes the relationship between the independent reviewer and the proposed new board as

“ill-defined and potentially problematic”

and goes on to say that

“the idea is…for the Board ‘to provide advice and assistance’ to the Independent Reviewer. Both advice and assistance are always welcome: but the former, including from the most eminent and knowledgeable quarters, is already frequently sought and freely given, whereas the latter is critically lacking. To require the Independent Reviewer to chair a Board…will make further claims on the Independent Reviewer’s time and could easily lead to competing priorities and inefficiencies. For there to be a net benefit, commensurate with the cost of resourcing the Board, its members will have to be doers rather than talkers, willing to accept direction in relation to often unglamorous researching and writing tasks.”

The Bill does not make provision for this, nor does the impact assessment’s description explain who will undertake the research and assistance roles that are so badly needed.

Finally, there is an issue about access to documents. Will the panel be security-cleared to the same standard as the independent reviewer? Will the staff? What will be the procedures for redacting documents either before they are passed on to the board or before they are published? These are the issues we are trying to address with our amendments.

Amendment 24 has been tabled to ensure a board with a statutory remit that includes the areas that the independent reviewer does not cover. It will also ensure that the board could respond to other areas of considerable and understandable public concern about the operations of counter-terror policy. We want the board to consider not just privacy but other human rights impacts, as well as the effectiveness of counter-terror policy. As David Anderson points out, counter-terrorism oversight in the past has taken strength from not being limited. If the office of the independent reviewer has influence with the authorities, it is in part because the reviewer can make recommendations to improve not just the fairness, but the effectiveness of counter-terrorism law.

Importantly, especially given the earlier discussions about the breadth of public bodies going to implement Prevent, we also want the board to be allowed to make recommendations to public bodies and public authorities. We tabled amendment 25 in particular to ensure that appointments to this body are made in line with the code of public appointments. We want the board to include real experts who will be able to access materials and provide real insight. We do not want a body compiled through patronage. We tabled amendment 26 to ensure that the statutory instrument creating this body addresses key questions about information gathering, reporting and access to documents.

We would rename the body to give it a title that reflects the nature of what it will actually do. As I said, the current name is misleading. As David Anderson has pointed out, the name not only offers little clue as to the function of the proposed body, but suggests a pure civil liberties watchdog, which this is not. It is not clear why privacy is singled out. Other important human rights are potentially infringed by counter-terrorism law, including the right to liberty, the right to a fair trial and freedom of expression. Mr Anderson takes issue with the word “board”, which he feels is better suited to the historical management of waterways than to the rigorous exercise of scrutiny under the direction of an independent reviewer. So Labour would call the board “a counter-terrorism oversight panel”, and we would give it the powers to back that up.

If the Government are genuinely committed to creating the body they outline in the terms of reference, they should accept these amendments without any hesitation. Of course, this is only part of the oversight package that we require. When the Justice and Security Bill was before the House, the Opposition suggested a number of ways of strengthening the Intelligence and Security Committee to give it a stronger, more independent and more open remit. We remain absolutely committed to the ISC and want it to continue to play a vital role in the oversight of the security agencies alongside a more prominent role for the intelligence commissioners, which is why we tabled new clause 7.

Let me turn briefly to the miscellaneous provisions, particularly clause 38, to which I have tabled amendment 19. Under clause 38, the Secretary of State can make changes that are

“consequential on any provision of this Act”

in any piece of legislation made by any UK legislative body, including the Scottish Parliament and the Welsh Assembly. This is important because under part 5, and particularly under clauses 21, 24 and 30, the Bill creates obligations on a range of bodies that are otherwise entirely devolved. As I mentioned in speaking to an earlier group of amendments, I do not think the Home Secretary should be able to amend devolved legislation without first consulting the relevant Government. That is why we tabled amendment 19, which I hope the Minister will feel able to accept.

[Mr David Davis]

I shall speak to new clause 3, tabled in my name. It is entitled “Intercept Evidence—use in legal proceedings”. It is a probing amendment and I do not propose to press it to the vote on this occasion. If I had wanted to press it, I would have included in the new clause the relevant legal machinery required, which is complex but not difficult to achieve if I wanted to do so. My aim is to provoke some sort of non-partisan debate on what is the cornerstone of counter-terrorism strategy—the legal treatment of intercept evidence. If need be, depending on what the Minister says and what the Government do in the meantime, I shall come back to the issue on Report.

The United Kingdom is unique among major western powers—common law powers and European Union countries—in not allowing the use of intercept evidence in court. I shall come on to the few exceptions in a moment. Why is that the case? It is difficult to know. GCHQ and its predecessor has always resisted putting any intercept evidence into the public domain. Frankly, this has probably been the case since the invention of the telephone. In the early days, I suspect it happened because gentlemen thought it ungentlemanly to listen in on other people’s conversations. Today, however, the argument advanced by the agencies concerns the protection of technique and capacity. Their attitude is very different from that of every other agency of its sort in the world. All our allies in the “five eyes” countries and beyond are equally concerned about protecting capability, but they also give high priority to the prosecution and conviction of terrorists and those who commit serious crimes. They manage to square that circle, but we do not appear to be able to do so at present.

Intercept Evidence

Debate between Diana Johnson and David Davis

Thursday 18th October 2012 Commons Chamber

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

I congratulate my right hon. Friend the Member for Tottenham (Mr Lammy) on an excellent speech. He was, as usual, a very powerful advocate for his constituents and his constituency, and for open justice, which is very important. The right hon. Member for Haltemprice and Howden (Mr Davis), a near neighbour of mine, made his usual compelling case for open justice and cogently set out the key issues in this case.

The debate overall has been of an extremely high quality, with excellent contributions from across the House. My right hon. Friend the Member for Torfaen (Paul Murphy) made a very good speech based on his own practical experience and knowledge in a number of roles. It was telling that he said that this is not an easy matter and that we need to keep on looking very hard at the use of intercept evidence. The hon. Member for Esher and Walton (Mr Raab) set out a strong case for the motion and drew on his experience in the US. My hon. Friend the Member for Poplar and Limehouse (Jim Fitzpatrick) asked exactly the right questions, drawn from his practical experience with the police, about why we are not doing this and how we can move it forward. The hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) spoke briefly about civil liberties and, in particular, control orders. I want to return to his comments later.

Over recent years, successive Governments, and particularly Home Secretaries, have grappled with the problems of trying to get intercept evidence into courts, and it has also been considered by the Privy Council review, so it is absolutely right that Parliament is debating the matter. We have heard at length about the benefits that might reasonably be expected to result from the use of intercept evidence in courts and inquests as regards, for example, increases in the number of successful prosecutions in serious organised crime and terrorism cases. However, the debate must cover not only the benefits but the difficulties involved, including the risks, such as exposure of interception capabilities and techniques, the resource implications of any changes in the law, and the implications of new communications technology. While the United Kingdom continues to struggle to find a way of accommodating intercept evidence in court, other countries, as we heard from my right hon. Friend the Member for Tottenham and the right hon. Member for Haltemprice and Howden, allow such evidence, and it is important for us to see what we can learn from those jurisdictions.

This is a very unusual issue. Successive Governments, the Privy Council and leading lawyers have long supported the principle of allowing intercept evidence, but none has been able to come up with a satisfactory model for the admission of such evidence without compromising national security. Labour has long supported the principle of allowing intercept evidence into courts. Indeed, the current push to find a way of doing this was started by my former right hon. Friend and Home Secretary, John Reid, the then Member for Airdrie and Shotts, in 2007, and that commitment was reiterated by my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) when he was Home Secretary. In opposition, my right hon. Friends the Members for Morley and Outwood (Ed Balls) and for Normanton, Pontefract and Castleford (Yvette Cooper) have reiterated Labour’s desire to see intercept evidence in court and to work with the Government in a constructive manner to achieve that. I restate that commitment.

It is clear that there would be significant benefits in allowing intercept evidence to be admissible in a wider range of courts than is the case at present. In particular, it would be desirable to allow the use of intercept evidence in criminal proceedings and inquests.

I am sure that we all sympathise with the Duggan family, who, as my right hon. Friend the Member for Tottenham has said, have unanswered questions. Understandably, they and the community in Tottenham want answers as to how Mr Duggan died, but without an inquest those answers cannot be provided. The Government have proposed secret inquests in which intercept evidence would be admissible, but that would not solve the problem—not only do we need justice to be done, but we need it to be seen to be done. I hope that the Minister will update us on the progress that he has made on this particular issue and I look forward to hearing his comments.

Allowing intercept evidence would seem to support two fundamental principles of British justice. The first is that courts should always have the best evidence available to them, and the second is that all crimes should be dealt with by the same legal system and guided by the same principles. We should, wherever possible, ensure that our legal system is able to protect national security and uphold standards of justice.

We would also like the use of intercept evidence to lead to practical outcomes, such as more prosecutions, particularly for serious crimes and terrorism. It is generally accepted that allowing intercept evidence would have a significant impact on some trials, facilitating some prosecutions and making others more likely. Indeed, the Crown Prosecution Service thinks that allowing intercept evidence would result in more prosecutions and more convictions, and it foresees time and money being saved as a result of more guilty pleas. We would particularly like to see the prosecution of cases that could not otherwise be tried, including those in which intercept evidence has led to a prosecution, but not necessarily for the most serious crime committed. It is often cited that allowing intercept evidence would reduce the need for other measures aimed at countering terrorism, namely pre-charge detention and terrorism prevention and investigation measures, or control orders as they were formerly known.

We should not, however, overstate the practical benefits of allowing intercept evidence. I now want to turn to the point that the hon. and learned Member for Sleaford and North Hykeham made about control orders, or TPIMs as they are now known. The noble Lord Carlile, the independent reviewer of terrorism legislation, was unequivocal in saying that he felt that intercept evidence would not have made control orders obsolete. That was backed up by a report by an independent counsel commissioned by the Home Office. It concluded that allowing the use of intercept evidence would not be enough to facilitate trials in any of the cases of the nine people who were subject to control orders at the time. Indeed, the Privy Council concluded:

“We have not seen any evidence that the introduction of intercept as evidence would enable prosecutions in cases currently dealt with through Control Orders.”

[Mr David Davis]

I will put to one side one of the weaknesses of the Privy Council report, namely its assessment of the effectiveness of intercept in prosecutions, and take up the issue of control orders. When we eventually allowed the use of control orders, our presumption when in opposition was that they would allow the control of people who could not be prosecuted in the courts because the available evidence—in other words, intercept evidence—could not be used there. Now we are being told that such people are having their freedom removed on the basis of, in essence, suspicion, because there is nothing beyond intercept other than suspicion. Members on both Front Benches are in a Catch-22 situation: either intercept is effective in dealing with control orders, or control orders are being imposed on the basis of suspicion alone.

[Diana Johnson]

The right hon. Gentleman raises an issue that could be debated for many hours. I think that his first point—that evidence was available—is the correct one. However, a review has taken place and the view of the independent counsel, who was commissioned by the Home Office, is that what the right hon. Gentleman has said is not correct. I have only limited time left, so I will move on. We will have to differ on that.

The number of criminal cases in which intercept evidence might be used is limited. An independent survey conducted in 2004 concluded that allowing intercept evidence would secure no more than 20 to 30 additional convictions a year.

Under the current arrangements, intercept evidence is of significant use for the protection of national security and the detection of serious crime. The Privy Council’s report into intercept evidence gives an excellent summary of the importance of wiretapping to UK law enforcement agencies. Under the current arrangements, the UK is able to benefit from intelligence gleaned from wiretapping, without compromising intelligence capabilities. Wiretapping often facilitates the collection of other admissible forms of evidence.

The Serious Organised Crime Agency has stated that

“interception, together with communications data, is the single most powerful tool for responding to serious and organised crime.”

It is because the current regime is so successful that the Metropolitan police currently secure a conviction in 88% of cases where they have employed intercept evidence. It estimates that that would rise only to 92% if intercept evidence were to become admissible. The more sophisticated criminals become, the greater the need for more advanced detection techniques and the greater the need to protect those intelligence techniques.

Of course, we cannot discuss individual cases or the evidence involved in them in Parliament, but it is clear from independent studies that law enforcement and Security Service agencies have provided numerous examples of intercept evidence having been used to apprehend wanted criminals, seize drugs or stolen property, or alert law enforcement agencies of planned criminal activities, enabling them to gather the admissible evidence that they require. We must recognise the important role that wiretapping already plays in the fight against crime and terrorism, and the importance of not jeopardising that success. The Privy Council stressed its belief that:

“The overriding objective should be to promote national security.”

That has been the position of successive Governments, and is the position of the Opposition.

If there was an easy solution to this problem, it would have been produced, but there is not. I will touch on a few of the issues that have prevented previous Governments from allowing wire-tap evidence in court. I hope that the Minister will update the House on what progress has been made on each issue. How can we allow the use of intercept evidence in courts, while protecting the most sensitive information which, if made public, would reveal a particular intelligence technique or source, and while upholding the principle of the equality of arms, under which the defence must have access to and be able to present all the relevant information?

The central desire is to protect the work of the security services and the techniques that they use. Proponents of the use of intercept evidence often counter that by saying that criminals are already aware of the intelligence services’ ability to intercept calls. However, the Privy Council rejected that point and said that criminals’ knowledge is currently conjecture based on rumour and that, while a few of their presumptions may be right, the evidence is that most of them are wrong.

Partnership is important. Earlier, I set out some of the successes of the current regime. Those are based on partnership between law enforcement agencies and the security services, between the UK and our international allies, and between state agencies and communication service providers. There is concern that any attempt to allow intercept evidence in court would jeopardise those successful partnerships. Indeed, some communication service providers have indicated that it would make them much less willing to co-operate. I hope that the Minister will respond to those points.

Much has been said about other jurisdictions. I would appreciate it if the Minister again set out clearly the unique position of the United Kingdom’s legal system, which is very different from that of some of the other countries that have been cited, such as France and Spain.

In conclusion, we all want to have intercept evidence in court. We want answers for the families of those who have died in controversial circumstances, where an inquest cannot take place. However, we have to acknowledge that this is a complex process and that at stake is a system that has delivered a lot towards the protection of our national security and in tackling international crime. It is not clear that any other country uses intercept-gained evidence as effectively as the United Kingdom.

The Opposition will of course work with the Government to get intercept evidence into courts without compromising national security, and international examples, particularly from Canada and the US, give us some indication of how that might be achieved. I hope the Minister will be able to update the House on the progress that the Government have made towards that end, and particularly on what plans he has to allow inquests such as Mark Duggan’s to take place; what processes are currently under way to evaluate the practicalities involved in allowing intercept evidence; what processes are in place for the Government to take expert advice from lawyers, law enforcement agencies and the intelligence services to that end; and whether he has any plans to bring forward a Green Paper.

Finance (No. 4) Bill

Debate between Diana Johnson and David Davis

Wednesday 18th April 2012 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

I want to associate myself with the comments made by my right hon. Friend the Member for East Yorkshire (Mr Knight), by my hon. Friend the Member for Beverley and Holderness (Mr Stuart), and by my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson); I embarrass him again by calling him that. The proposal for VAT on static caravans will have a seriously deleterious effect on all of east Yorkshire, including Hull, dramatically cutting employment in the area at a time when we are trying to encourage growth and to balance the books. This proposal will do neither; in fact, it will reverse both.

This is a Finance Bill; the aim is to raise money. The latest estimates of the employment impact of this measure are that it will result in 4,000 to 7,500 job losses, of which 1,500 to 2,000 will be in the vicinity of our constituencies. The effect of that in financial terms is pretty straightforward to calculate. The Government estimate that they will raise £30 million to £40 million in VAT from this change. They will lose between £32 million and £65 million in lost national insurance, lost inland revenue, and extra welfare costs. It will therefore do the opposite of what the Budget is attempting to do. When I put that point to the Treasury, people said to me: “We don’t calculate things in that way.” That might sound silly, but there is a substantive point behind it—as I am sure that the shadow Chancellor, who is smiling, will know. Usually when one introduces a tax change that leads to job losses, people will, in due course, find another job. In east Yorkshire, two of the three Hull seats have dramatically high unemployment levels already, and the ratio of jobs available to unemployed people seeking them is one of the highest in the country. As a result, the resulting unemployment will not be short term but is likely to last for more than five years. We should calculate the effects of the proposal in this way because, for the foreseeable future, it will cost more than it will raise.

[Diana Johnson]

The right hon. Gentleman is making an excellent speech. Has he seen today’s report that 43 people in my constituency are chasing every vacancy? I set that figure alongside the comments that he is making.

[Mr Davis]

The hon. Lady makes a powerful point that I am not unfamiliar with. We have all been in similar battles over job losses at BAE in Brough and, in my constituency, job losses to the tune of 1,700 have been announced in the past six months.

This proposal does not stand up, on the Government’s own criteria. Accordingly, I support new clause 6 and will vote for it when it is put to the test.

Flooding (Hull)

Debate between Diana Johnson and David Davis

Tuesday 13th July 2010 Commons Chamber

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

I am very pleased to have secured this Adjournment debate this evening, three years after the flooding in Hull in 2007 that caused such havoc for my constituents. I remind the House that the flooding in Hull was caused by surface water flooding, that one in five homes were flooded, and that June 2007 was the wettest month recorded in Yorkshire since 1882.

I first pay tribute to all the local services in Hull that worked so hard for my constituents on the day of the flooding and in the months and years that followed. Many issues pertaining to the flooding are outstanding, but tonight, because of the limited time, I wish to explore just three. The first is the progress that has been made so far on legislation and new policy directions. The second is insurance. Thirdly, I will seek reassurance from the Minister about future funding for flood protection measures in my constituency.

I thought it right to start by examining the coalition agreement to see what the Government have to say about their plans for flooding protection. It states clearly:

“We will take forward the findings of the Pitt Review to improve our flood defences, and prevent unnecessary building in areas of high flood risk.”

I was pleased that Hull was quick off the mark after the floods and had a report produced by Professor Tom Coulthard at Hull university. We then had the national Pitt review. It is to the credit of the previous Labour Government that all 92 recommendations in the review were accepted and many implemented in the provisions of the Flood and Water Management Act 2010. I seek reassurance from the Minister that those provisions will be implemented as soon as possible. I also seek information about the possibility of the new coalition Government producing a water White Paper in the near future.

One of Pitt’s clear recommendations was on surface water management plans, suggesting that local authorities should become responsible for ensuring that arrangements were in place to assess and manage local flood risk from all sources, including surface water, and for developing a surface water management plan.

[Mr David Davis (Haltemprice and Howden) (Con)]

I congratulate the hon. Lady on securing an Adjournment debate on this extremely important issue. Does she agree that the first stage of water management is to ensure that we avoid building not only on floodplains—I think that that is a common view—but anywhere where it will lead to the blocking of a watercourse or an increased risk of houses flooding?

[Diana R. Johnson]

The right hon. Gentleman is exactly right, and I believe there is support for that view throughout the House.

The surface water management plan in Hull, which will have an impact on the right hon. Gentleman’s constituency, will bring together the East Riding of Yorkshire, Hull city council, Yorkshire Water and the Environment Agency to put together a workable plan. A scoping exercise was undertaken, and the previous Government provided £250,000 to develop the plan further. This summer there will be consultation, including on an aqua green in my constituency in the Orchard Park and Greenwood area, adjacent to the Cottingham area, which the right hon. Gentleman represents. I understand that the aqua green, alongside the other provisions set out in the consultation, would cost about £20 million to implement across the city. I seek reassurance from the Minister tonight about the future of that funding.