Investigatory Powers Bill

Joanna Cherry Excerpts

Tuesday 1st November 2016 Commons Chamber

[Mr Wallace]

This is a very important point of principle.

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

The Minister asked me a question. I can only remind him of what Mr Speaker said when he was in the Chair: that legislative consent is not required until the Bill has been amended, as the Minister will know very well. Legislative consent to those aspects of the Bill that require it is not sought from the Scottish Government until the Bill has passed through this House. He is therefore setting a false trap. He will remember a phrase from the Scottish Parliament, “My head does not zip up the back.” My head does not zip up the back, and I will not fall into his false trap, but SNP Members will give their support to the Lords amendment on this occasion.

[Mr Wallace]

I think we can debate Zippy another time.

This is about an important issue of principle. Throughout all the Bills I have ever been involved in, we in this House have gone out of our way to make sure that we seek the up-front approval of the Scottish Parliament in an LCM before we start down the path of picking and choosing what we do or do not support.

--- Later in debate ---

[Mr Wallace]

Not for the first time, my hon. Friend is absolutely right. This is the last opportunity to amend this Bill—there will be no going back. Should the hon. and learned Lady wish to go back, then we shall hear her options.

[Joanna Cherry]

The Minister is in a slightly unfair position because he did not pilot the Bill through the Bill Committee, but I did serve on the Committee, and he can check what happened with his ministerial colleagues. The Government accepted clause 8, on the back of which this amendment rides, as a result of an SNP amendment to reintroduce the tort—or, to use the Scots word, delict—in the Regulation of Investigatory Powers Act 2000. This further Lords amendment rides on the back of an amendment that arose from the historic event of the Government actually accepting an SNP suggestion. I was absolutely delighted about that and will mention it at every opportunity.

[Mr Wallace]

In the words of the hon. and learned Lady, my head does not zip up the back either. This is an amendment to an accepted amendment. That does not mean that the amendment is accepted in relation to an LCM—we cannot make that assumption. We should reflect on Mr Speaker’s point that this House does not usually legislate on policy that is not agreed to by the Scottish Parliament in advance.

--- Later in debate ---

[Mr Rees-Mogg]

My hon. Friend is right. Although some newspapers are part of bigger media groups, those media groups will not be willing to fund indefinitely loss-making newspapers. The journalism that is the core of not only the print media but most of what people get online, which is not covered by the measure anyway, comes from a narrowly profitable print media. If that ceases to have any chance of being profitable, where will all the internet content that people read for nothing come from? Where are the resources to provide us with investigations into wrongdoing? Wrongdoing—not only of politicians, but of institutions—is revealed year in, year out. Great footballing institutions were investigated by The Sunday Times. How will the newspaper be able to do that if it gets sued and has to pay double damages on merely the allegation that hacking has taken place? This is a real threat to press freedom.

Press freedom is of the greatest possible value, and it is one of the reasons why the United Kingdom is such a stable polity. The press shines a light on corruption, on criminality and on wrongdoing. It holds people to account. It brings them to book. Why do we give an absolute protection to whatever is said in the House, so that it cannot be contested in any court outside Parliament? We give ourselves that protection because we so value freedom of speech. We should be extending that protection as widely as possible—not holding it narrowly to ourselves, but allowing the country at large to enjoy the same benefit.

The chippy speeches made by those in the other place, and unfortunately in this House too, who have come under the spotlight of the press and had a rude story printed about them that they did not like—about a big scandal, a little scandal, something that caused offence or something that upset their spouse—ought not to be used to take away a fundamental constitutional protection of the greatest importance. That should not be done by the back door, by tacking something on to a completely different Bill in a hissy fit because the Secretary of State has not done it under existing legislation. That is quite a wrong way to proceed.

That brings me on to the second part of what I want to say. The first part is of overwhelming importance: the freedom of the press is an absolute, and it is much, much better to have a free and irresponsible press than it is to have a responsible but Government-controlled press. As my hon. Friend the Member for North Dorset (Simon Hoare) would like me to say, the principle of England free rather than England sober should be at the heart of our understanding of the press.

The constitutional aspects of how we legislate are also important, however. In this House we have very strict rules, which are implemented fairly by the Clerks and the Speaker, about the scope of Bills, and we cannot tack on random things that we feel it would be nice to have. The House of Lords, being a self-governing House, can tack things on. Its Members have lost the self-restraint that they used to have of following constitutional norms in relation to legislation. They showed that in the last Session of Parliament in relation to boundaries, and they are doing so again now. I am concerned that the SNP is not more worried about the Sewel convention.

[Joanna Cherry]

I hesitate to give the hon. Gentleman a lecture on constitutional procedure, but I can give him full comfort on the points he has raised if he cares to consult the devolution guidance note 10. It states:

“During the passage of legislation, departments should approach the Scottish Executive about Government amendments changing or introducing provisions…or any other such amendments which the Government is minded to accept… No consultation is required for other amendments tabled. Ministers resisting non-Government amendments should not rest solely on the argument that they lack the consent of the Scottish Parliament unless there is advice to that effect from the Scottish Executive.”

The note goes on to explain what happens in such a situation:

“The Scottish Executive can be expected to deal swiftly with issues which arise during the passage of a Bill”.

With great humility, I want to say that on this occasion the hon. Gentleman is mistaken.

[Madam Deputy Speaker (Mrs Eleanor Laing)]

Order. The hon. and learned Lady will very shortly have an opportunity to make her speech in full. I must urge hon. Members to make short interventions as we have only 55 minutes left for this debate.

[Mr Rees-Mogg]

I will cover that point, and then swiftly come to a conclusion. The amendment was passed on 11 October, but there has been no response to it, and this is the very last opportunity to decide whether this provision should pass into law. If it passes into law, the Scottish Parliament will have had no opportunity to give its consent to what, in effect, is the repatriation of a power from the Scottish Parliament to the UK Parliament. It is quite right that the Government have not asked for such consent, because the change has not been made on a Government amendment, but SNP Members might well have wanted to seek the guidance of their friends in the Scottish Government to determine whether this was acceptable and to get their consent.

[Joanna Cherry]

rose—

[Mr Rees-Mogg]

I will leave the hon. and learned Lady to come back to this point in her own speech.

These forms are very important. I would not pretend that I am anything other than a Unionist, but I believe that the Union will do well if we observe the norms and the courtesies between the various Parliaments. This Parliament must be exceptionally careful about overriding things that have been devolved, as media policy clearly has been, and we should therefore tread on such areas lightly.

The SNP should be cautious about using this in a politically opportunistic way, however convenient that may be. There will come a time when it is politically convenient for those on the Treasury Bench not to use the Sewel convention, but to get a Back Bencher to table an amendment that will go through without needing the Government to ask for consent at a very late stage in the proceedings, perhaps even as an amendment to a Lords amendment, and such an amendment will go through, with the Sewel convention brushed aside. If SNP Members say that that is perfectly all right and that that is the way to do it, that will leave such conventions in disrepute and will lead to rows between the constituent Parliaments. Basically, disrespect will be shown by one Parliament of another, which will become very serious constitutionally. For a one-day win, they may be risking a constitutional imbroglio.

[Joanna Cherry]

I rise to give the Scottish National party’s support to this group of Lords amendments.

Much was promised of the Lords when the Bill left this House—many Members had deep concerns about the Bill’s intrusion on civil liberties and about the security of data—but I regret, although I am not surprised, to say that the Lords amendments as a whole have not lived up to the expectations that some of us had. Although there have undoubtedly been some improvements in the safeguards afforded by the Bill, which we intend to support later—they are the result of Government amendments in the Lords that largely arose from suggestions made by the opposition and the Intelligence and Security Committee—we do not think those Lords amendment go far enough, and I will give specific examples of that later.

At the moment, we are dealing with the group of Lords amendments that some people, for convenience, have called the Leveson amendments. I want to knock firmly on the head any suggestion that Scottish National party Members or the Scottish Government are making any concessions in relation to the Sewel convention. Hon. Members would no doubt be very surprised if we did, but we are not doing so. Unlike the Minister, we are following the proper procedure, as laid down in devolution guidance note 10 on “Post-Devolution Primary Legislation affecting Scotland”. As I have already said, the note specifically comments on such amendments. In paragraphs 18 and 19, which I will read in full because this is very important, the note states:

“During the passage of legislation, departments should approach the Scottish Executive”—

or the Scottish Government, as they now are—

“about Government amendments changing or introducing provisions requiring consent, or any other such amendments which the Government is minded to accept.”

Clearly, Lords amendment 15 is not a Government amendment, and the Government are not minded to accept it. In such a situation, paragraph 18 says:

“It will be for the Scottish Executive to indicate the view of the Scottish Parliament.”

Very importantly, it goes on:

“No consultation is required for other amendments tabled.”

It is not therefore incumbent on the UK Government to consult the Scottish Government about opposition amendments. It goes on:

“Ministers resisting non-Government amendments should not rest solely on the argument that they lack the consent of the Scottish Parliament unless there is advice to that effect from the Scottish Executive.”

I know as a matter of fact that there is no advice to that effect from the Scottish Government, because I spoke to the Minister concerned about that at the weekend. Paragraph 19 says:

“The Scottish Executive can be expected to deal swiftly with issues which arise during the passage of a Bill, and to recognise the exigencies of legislative timetables (eg when forced to consider accepting amendments at short notice). Nevertheless since the last opportunity for amendment is at Third Reading in the Lords or Report Stage in the Commons the absence of consent should not be a bar to proceeding with the Bill in the interim.”

That is what the guidance note states, so the point made by the hon. Member for North East Somerset (Mr Rees-Mogg) is fallacious. This is not a Government amendment or an amendment that the Government are minded to accept; it is an opposition amendment. It is perfectly open to SNP Members to support the Lords amendment at this stage without making any concession. Only in the event that the amendment is passed by this House will it be incumbent on the Government to go to the Scottish Government and the Scottish Parliament to get a legislative consent motion. This point is a complete red herring.

[Mr Rees-Mogg]

In the event that such a legislative consent motion were refused, would the hon. and learned Lady expect the Queen to refuse to give Royal Assent to the Bill, because that would be the only way to stop the Bill becoming law?

[Joanna Cherry]

I assure the hon. Gentleman that it would not come to that, because if the amendment is passed by the House, the Scottish Government will grant a legislative consent motion. The SNP, which is in opposition in Westminster and the Government in Scotland, has discussed this issue in detail over the weekend—I discussed it with the Scottish Government Minister—and we have a position on Lords amendment 15. I will now set out our position, but I am very conscious of the time, so I will be as brief as possible.

As I said earlier, Lords amendment 15 rides on the back of clause 8, and I am very proud to say that it arose from an SNP suggestion in Committee for such an amendment. We have heard about the effect of the Lords amendment. In my respectful submission, the effect will be good: no newspaper should be involved in telephone hacking, and if one is, it should face the consequences. I want to make the SNP position clear.

Section 40 of the Crime and Courts Act, about which we have heard much today, was passed in March 2013. It was part of implementing the Leveson inquiry recommendation that any new regulator set up by the press should be accredited as independent and effective. The purpose of section 40 is to provide costs protection for claimants and Leveson-regulated newspaper publishers. It was passed in this House with cross-party agreement, including the support of SNP MPs. There were rather fewer SNP MPs then than there are now, but my colleagues supported the then Bill. As has already been said, the UK Government have reneged on implementing section 40 on many occasions. Today’s announcement of a consultation kicks its implementation further into the long grass.

As has correctly been said, section 40 extends to England and Wales only, because the regulation of print media is devolved to the Scottish Parliament. The Scottish Parliament has provided cross-party support for the UK Government’s actions to implement the royal charter. The Scottish Government will continue to monitor the current press regulations and work with other parties in Scotland and at Westminster to ensure effective regulation of the media on a non-political basis.

The majority of the press, and in particular the regional press in Scotland, were not involved in the sort of malpractice that prompted the Leveson recommendations. It is therefore the view of the Scottish Government and the Scottish National party that any policy in this area in Scotland must be proportionate and must balance the freedom of the press with the public desire for high standards, accuracy and transparency.

That said, the protection afforded by section 40 when brought into force would be available to Scottish litigants who chose to sue newspapers based in England and Wales. Regrettably, a number of major newspapers based in England were involved in the sort of malpractice that prompted Leveson, and it is therefore right that such protection should be afforded. The limited amendments that we are discussing will not affect small or regional newspapers adversely at all, because they have not been involved in phone hacking, and, I assume, do not have any plans to become involved in it.

Scottish National party MPs are going to support the Lords amendments to provide costs protection across the UK for claimants and Leveson-regulated news publishers in claims for unlawful interception of communications, including phone hacking. I hope that as a result of the amendments some good, at least, will come of this Bill’s passage through Parliament, in the event that this House is minded to support them. I will be crystal clear that nothing I have said involves any concession whatever about the primacy and importance of the Sewel convention, which is now enshrined in legislation. If anyone is in any doubt on that, they should go away and read carefully the guidance note from which I have quoted at some length this afternoon.

[Mr Wallace]

On memorandum 10, to which the hon. and learned Lady refers, is she saying that she is happy to accept the principle that in future when amendments come forward that are not Government amendments nor amendments that the Government are minded to accept, whether from a friendly Back Bencher or an unfriendly one, we do not have to consult the Scottish Government for a legislative consent motion?

[Joanna Cherry]

The hon. Gentleman is no doubt aware of what I did for a career before I came here. I have no intention of making any concession that goes beyond the four walls of what I have already said.

[Mr Edward Vaizey (Wantage) (Con)]

I will be as brief as possible. First, let me say how much I have enjoyed this afternoon’s debate. For the past six years, as a Minister, having been locked up—

[Mr Vaizey]

Yes, I should be. But being locked up as a Minister, I did not have the benefit of hearing the wise constitutional pronouncements of my now prone hon. Friend the Member for North East Somerset (Mr Rees-Mogg)—very few hon. Friends will be able to see him as he is sunbathing at the moment. I have found myself in an “Alice in Wonderland” world, where the hon. Member for Hackney North and Stoke Newington (Ms Abbott) was praising the House of Lords from the Labour Front Bench, and my hon. Friend was attacking it. I really did not know where to turn. That is the first thing that has interested me in the debate.

The second is the extraordinarily complex constitutional argument going on about the various powers of the Westminster Parliament and the Scottish Parliament. I think we have come to the clear conclusion and have constitutional clarity that this House can now amend legislation that then goes into force in Scotland without waiting for a legislative consent motion from the Scottish Parliament. That is a welcome, if interesting, concession from the Scottish National party.

[Joanna Cherry]

The right hon. Gentleman should try very hard not to misrepresent what I have said. I have not made any concessions. I have quoted from the established procedures that are already laid down.

[Mr Vaizey]

As my hon. Friend the Member for North East Somerset pointed out, the Scottish Parliament has had plenty of time to let this House know its views on the amendment, but has not done so, and the hon. and learned Lady is now going to support it. She cannot answer the question put by the Minister, namely what would be the constitutional position if, having passed this amendment, the Scottish Parliament then refused the legislative consent motion. That question was also put by my hon. Friend the Member for North East Somerset; it was at that point I knew I was on to something, because I was going to ask her exactly the same question.

[Joanna Cherry]

rose—

[Mr Vaizey]

The hon. and learned Lady did not answer either of them, so she would not answer me and I will not take her intervention.

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[Tom Tugendhat (Tonbridge and Malling) (Con)]

I am grateful to be called to speak in this important debate. The changes that the Lords have brought before this House are significant because they adulterate what is fundamentally an essential Bill. The Investigatory Powers Bill, which has been brought here after the careful, bipartisan—in fact, multi-partisan—work of my right hon. Friend the Prime Minister when she was in her former post, is one of the most important Bills that we have brought forward. It has been brought forward with very little trouble or argument because of the efforts put in beforehand. To find ourselves in the House of Commons today debating an amendment that does not even belong in the Bill because Members of the House of Lords have misunderstood its purpose is deeply unhelpful.

Moreover, as was pointed out by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), the ability to shoehorn amendments into Bills starts to take us into the pork-barrel politics of the United States. I think that that would be a great error not only for our country but for the conduct of government, because it would lead to our seeking to add the bridge, the road or the school to the back of a Finance Bill—or, indeed, an Investigatory Powers Bill.

The Bill matters fundamentally, particularly today. I do not like to bring up the subject of The Guardian too often—after all, the only reason we had it in the officers’ mess was to dust it for prints—but now that it has been mentioned a few times, I think it wise for us to read what appears on the front page today. The head of MI5 himself has given an interview to The Guardian, presumably—well, I will stop there, but his warning is very clear: Russian activity in this country has now grown to a level which is simply unacceptable, which is genuinely a threat to our nation and with which his organisation must now deal. I am delighted that the Bill is back in the House of Commons, because we now have an opportunity to cut the barnacles off the boat and get rid of this amendment.

The Leveson legislation was introduced in the last Parliament, when I was not here and nor were many of my colleagues. I hope you will forgive me, Mr Deputy Speaker, if I express some dissatisfaction about the speed with which the last Parliament debated the legislation. I also hope you will accept that some of us who are new to this place are deeply uncomfortable with state authority over a free press. My hon. Friend the Member for North East Somerset and my right hon. Friend the Member for Wantage (Mr Vaizey) have already spoken eloquently, so I will not go over the same ground, but I feel very uncomfortable when I am asked to set up a regulator to govern who governs me, and I feel deeply uncomfortable when I am asked to say who is the judge who can hold me to account.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Tom Tugendhat]

I hope the hon. and learned Lady will forgive me if I do not, for reasons of time.

Having been brought up at the foot of a judge who did indeed hold me to account—very actively—I now realise that the judiciary works better when it is appointed without the control of the House and the Government. I will therefore not encourage the Government to invoke section 40 of the Crime and Courts Act 2013, and I will speak against it during the investigation that is to be conducted by my right hon. Friend the Secretary of State for Culture, Media and Sport over the next 10 weeks.

Members have asked how on earth this measure could possibly bully the regional press. We all know that a free press is the lifeblood of democracy, but the troubles experienced in borough and county councils across our land are partly due to the fact that our regional presses are being silenced. Too many are closing, and too few now have regular reporters in the county council rooms, the borough council rooms or the district council rooms to follow what elected members are saying. I think that what we are doing here will increase the pressure still further. Forcing organisations to join IMPRESS, for example, imposes a cost that many cannot bear.

Other Members have mentioned the unlikelihood of any regional paper or regional organisation hacking a telephone, and it is indeed deeply unlikely. Of course, we all thought it was deeply unlikely that a national paper would do that, and then we found that one had; but that does not matter, because clause 8 does not tell us whether it is likely or unlikely. It merely sets out the penalty, and in doing so, effectively holds all those organisations to ransom. It forces them into organisations like IMPRESS, to which they must pay an extra tax.

Given the parlous economic situation of so many regional media outlets—in my own wonderful county of Kent, many papers have lost their correspondents from various towns—I cannot possibly support the amendment. It would be bad for the regional press and for a free press, and it would therefore be bad for our democracy and for us. Furthermore, it would act as a brake on an essential piece of legislation—a piece of legislation that we need to keep us safe, and to ensure that the safety of all those whom we are here to represent is also guaranteed.

--- Later in debate ---

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

Privacy is an essential right in a democratic society. It is a basic civil right, protected by statute, so it must follow that any incursion into that right should be limited and carefully considered. I want to make three short points to show that, through the passage of the Bill through this House, that necessity for considered judgment has been respected.

First, a significant amount of information

“was given when the Bill was first tabled…including more information about the security services than we have ever seen in parliamentary papers.”—[Official Report, House of Lords, 11 October 2016; Vol. 774, c. 1797.]

Those are not my words, but the words of the Liberal Democrat peer Lord Carlile during last month’s debate in the other place.

Secondly, as the Bill has passed through the House and through Committee, the Government have listened. Again, that is not my view, but that of Lord Janvrin, the Cross-Bench peer who opened the debate in the other place by stating that the

“changes have introduced significant improvements in the protection afforded to privacy.”—[Official Report, House of Lords, 11 October 2016; Vol. 774, c. 1797.]

Thirdly, this is a Bill that

“stands not only for transparency but for the introduction of significant new safeguards”,

which is a view expressed by David Anderson in paragraph 1.20 of his most recent report on bulk powers.

It is right that we think carefully when we look to limit the right to privacy, and this Government have done so. Importantly, we must also remember why we are passing this Bill. We are doing so to protect and ensure the safety of our citizens from illegal acts, including serious crime, and to fight international terrorism; and we are doing this in a fast-moving environment where we have to keep pace with technology.

Andrew Parker, the head of MI5, told The Guardian this morning that the number of terror plots thwarted in the past three years stands at 12. He said that

“the tempo of terrorist plots and attempts is concerning and it’s enduring. Attacks in this country are higher”

than he has experienced in the rest of his 33-year career at MI5. The Bill’s provisions are designed to ensure that our security services have the tools that they need to protect our citizens from those attacks.

David Anderson wrote in his report, which was published in August:

“The bulk powers play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield. Where alternative methods exist, they are often less effective, more dangerous, more resource-intensive, more intrusive or slower”.

The Bill strikes a balance between privacy and security, and it does so because the Government need the tools to fight external threats to the nation. Those tools ensure our safety and our freedom.

[Joanna Cherry]

Unlike the Minister and the shadow Home Secretary, but like the hon. and learned Member for South East Cambridgeshire (Lucy Frazer), I have been with this Bill since the beginning and it has been an interesting journey. As I said earlier, much was promised from the Lords when the Bill left this House, and, as the shadow Home Secretary has said, people had considerable concerns at that time about its intrusion into civil liberties and the security of data.

It is a matter of regret that the Lords amendments as a whole have not lived up to expectations. However, some improvements have undoubtedly been made in the safeguards afforded by the Bill, as a result of Government amendments in the Lords. Although the SNP does not believe that they go far enough, we will support them because they improve the safeguards. The Minister has listed some of them. I am particularly happy with the taking up of the recommendation for a technical advisory panel; the imposition of some restrictions on access to bulk personal data sets; and the inclusion of the threshold for internet connection records. I also particularly welcome the Government amendments to clause 233, to ensure that the Scottish Government will be provided with the means to engage with the work of the judicial commissioners relating to the devolved powers in Scotland.

[Suella Fernandes (Fareham) (Con)]

I am pleased to note that the hon. and learned Member for Edinburgh South West (Joanna Cherry) and I have made similar sartorial choices today. Although we disagree on many other things, it seems we agree on the important things. Does she agree that the legislation is essential, because without it the expiration of existing legislation will create a legal vacuum?

[Joanna Cherry]

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

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

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

[Dr Murrison]

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

[Joanna Cherry]

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

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

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

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

[The Solicitor General (Robert Buckland)]

I listened very carefully to what the hon. and learned Lady said about the double lock. Surely the point is that where the judge has the final say, authorisation will not be granted. Will not that fundamental change create the balance that both she and I want?

[Joanna Cherry]

I do not accept that the Government have gone as far as some of us would have liked them to go on the double lock, which is by having full-blown judicial warrantry with the power to look at the merits as well as at the process. However, I accept that this is an improvement on what was originally in the Bill, and its inclusion is a great tribute to the hard work that was done by me and my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands), as well as by Labour members of the Committee. If there had not been such root-and-branch opposition, many of the Government amendments that have finally been passed in the Lords would not be with us today.

[The Solicitor General]

We are all keen to claim the credit, but let us not forget that the Government’s position from the outset was to have a double lock. This important change is very much the result of Government initiative, as well as of the good intentions of Opposition Members.

[Joanna Cherry]

Indeed, but the fine detail on the double lock—that is what enables the Solicitor General to get up and say that it goes as far as it does—was inserted by way of amendment during the Bill’s passage.

[Suella Fernandes]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I will make a little progress, and then give way again, because I do not want to take up too much time.

During the Bill’s passage, SNP Members were pleased to offer our support to the Labour party on its amendment to protect trade unionists going about their lawful activities, but what about protections for other activists and campaigners going about their lawful activities and what about non-governmental organisations and whistleblowers? We should not have unjustified spying on trade unionists, and we should not have unjustified spying on other activists either. Whistleblowers can sometimes be very inconvenient to the Government and to the private sector, but they fulfil an important function and the Bill contains insufficient protection for them.

On the protection of journalists, it is true that significant amendments have been made in the Lords, but it is important to put on the record today that journalists have continued concerns about the provisions in the Bill. They feel that safeguards for journalistic sources should apply across the various powers in the Bill, rather than in their current limited form.

In parallel, although great progress has been made in the Lords on the question of legal professional privilege, some in the legal profession still have concerns about the way in which the Bill approaches it. The way the Bill is drafted may have undermined the central premise on which legal professional privilege is based. However, credit where credit is due: significant progress has been made. I spoke this morning to the Law Society of Scotland, which recognises that the Government have come a long way but is still concerned about these somewhat controversial measures and is very anxious to have post-legislative scrutiny of how legal professional privilege will work in practice.

[The Solicitor General]

The hon. and learned Lady will agree, first, that legal professional privilege has for the first time been averred in legislation, which is very important, and secondly, that further amendments made in the Lords—they were approved by Members such as Lord Pannick—now deal with situations in which legal professional privilege material has been obtained inadvertently. We are now covering even more areas in a circumscribed way, and creating the sort of safeguards that I know she wants.

[Joanna Cherry]

I read with interest the debates in the Lords about legal professional privilege. I noted carefully the approval granted to the measures by Lord Pannick, but I also noted that Lord Paddick made the point that the Bar Council of England and Wales is still not entirely happy about the provisions. That is a matter for the Bar Council, but we should adhere to the Law Society of Scotland’s suggestion of careful post-legislative scrutiny of how legal professional privilege will work in practice.

The two huge concerns I still have about the Bill relate to internet connection records and bulk powers. I have already spoken about the limitations in how we have dealt with the bulk powers review and the fact that, in my opinion and that of many others, it does not deal with the issues of necessity and proportionality.

On internet connection records, I welcome the limited safeguards introduced by the Lords, in particular, the threshold increase on serious crime, judicial approval for data retention notices and prohibition of the retention of third-party data, which we were quite agitated about in Committee. But it is a matter of regret that the Bill still includes provisions dealing with the collection of internet connection records that go beyond anything that any other western democracy has on its statute book and that, as the shadow Home Secretary said, may be of dubious legality.

The fight for our civil liberties concerns about the Bill has been lost in this House, but, as the shadow Home Secretary suggested, it is likely to continue in the courts. Liberty is representing the hon. Member for West Bromwich East (Mr Watson) in a legal challenge to existing surveillance laws. As the shadow Home Secretary said, the Government have ignored the opinion of the advocate-general in the Court of Justice of the European Union on these issues, which was that current provisions lacked vital safeguards. To my mind, that means that when this Bill becomes law it will be open to immediate challenge.

The Bill is certainly the better for its passage through the Lords, although it pains me slightly to say that, as someone who does not approve of the House of Lords—not because I do not approve of a second Chamber but because I think that it should be democratically accountable in some way. However, I do not believe that what was promised of the Lords, and expected by some on the Opposition Benches, on the protection of civil liberties has come to fruition.

It is a matter of the greatest regret that peers supported the internet connection record powers just hours after the Investigatory Powers Tribunal had ruled that the security agencies had been unlawfully scooping up personal confidential information on a massive scale for more than a decade. I was repeatedly told regarding my objections to the Bill that our security agencies are the best in the world and never break the law. I suspect that it is close to the truth that the British security agencies are, if not the best, among the best in the world; but they do sometimes break the law. No one is infallible. We must have safeguards that are real. It is noteworthy, and an indication of the inadequacy of the scrutiny of the Bill that, only hours after the Investigatory Powers Tribunal ruled that unlawful action had taken place, the Lords supported the provisions on internet connection records in their totality.

It seems that the battle has been lost in this House. But given the very real concerns I and others have about the lawfulness of aspects of the Bill, I suspect the battle may be won elsewhere.

[Suella Fernandes]

This landmark legislation enables our security, intelligence and law enforcement services to continue the intelligence gathering, analysis and code-breaking that are essential for the security of our country in a digital age. I was pleased to support the Government on Second Reading, and am even happier to do so today.

The Investigatory Powers Bill has been subject to intensive scrutiny. Along with many Members in the Chamber—including my hon. Friends the Members for North Dorset (Simon Hoare) and for South West Wiltshire (Dr Murrison), my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) and the Solicitor General—I was privileged to sit on the Committees for that scrutiny. I was a member of the Joint Committee responsible for pre-legislative scrutiny of the draft Bill. We considered 1,500 pages of evidence, interviewed numerous experts and campaigners, and made 86 recommendations to the Government.

Following that, there was a refreshingly collaborative cross-party approach during the Bill’s passage through Parliament. The Bill has benefited from the expertise and constructive criticism of many hon. Members, including the then Labour party spokesman on the issue, the hon. and learned Member for Holborn and St Pancras (Keir Starmer), a former Director of Public Prosecutions.

Throughout that process it has emerged that our intelligence and security agencies depend upon the acquisition of bulk data—that is, information acquired in large volumes and used, subject to special restrictions, to acquire vital and unique intelligence that they cannot obtain by other means. They need the power to intercept messages and will not be able to do their job without contextual intelligence, provided in the form of internet connection records.