Oral Answers to Questions

Debate between Joanna Cherry and Lucy Frazer

Monday 9th January 2023 Commons Chamber

[Lucy Frazer]

As my hon. Friend has said, the Government are reviewing it.

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

T4.   Building cost inflation is having an adverse effect on the proposed refurbishment of Edinburgh’s historic King’s Theatre, and a levelling-up application has been made to try to cover the shortfall in its fundraising. Will the Minister meet me so that I can brief her on this problem and tell her all about the fantastic project, which has been specially designed to benefit the whole community in Edinburgh?

Oral Answers to Questions

Debate between Joanna Cherry and Lucy Frazer

Tuesday 18th December 2018 Commons Chamber

[Lucy Frazer]

My hon. Friend makes an important point about prisoner transfer. Since 2010, we have removed more than 44,000 foreign national offenders from our prisons, our immigration removal centres and the community. Of course, the EU prisoner transfer provisions facilitate those arrangements, but we have other measures in place with over 100 other countries to ensure that we can continue prisoner transfers.

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

The political declaration makes no reference to the Schengen information system database or the European criminal records information system. Both Police Scotland and the Crown Office and Procurator Fiscal Service in Scotland are concerned about that, because both tools are fundamental to fighting and investigating crime. Can the Minister confirm that Scotland will lose access to these measures after Brexit?

[Lucy Frazer]

As I mentioned, the Prime Minister has made it clear that she is seeking to ensure that the measures that underlay them, and the co-operation within them, will continue as far as possible post Brexit.

I should mention, because the hon. and learned Lady often asks about liaison with the Scottish Government, that I spoke to my counterpart, the Cabinet Secretary for Justice on 29 November, and he reiterated to me how pleased he was with our engagement at official level on the negotiations with the EU.

Oral Answers to Questions

Debate between Joanna Cherry and Lucy Frazer

Tuesday 13th November 2018 Commons Chamber

[Lucy Frazer]

As I have mentioned, Europol and the European arrest warrant—all these areas where we share data—are incredibly important to us, as they are to the EU. We are one of the largest contributors to security information within the EU. The Home Office leads on these matters, and it is trying to ensure that we get the best possible co-operation going forward.

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

Contrary to the assurances that the Minister gave to my hon. Friend the Member for Livingston (Hannah Bardell), the process of leaving the European Union has been marred by the UK Government’s consistent failure to consult the Scottish Government or Scotland’s Law Officers about the impact on Scotland’s separate and independent legal system. Can she now give me an assurance that this is not indicative of a plan to use Brexit to undermine Scotland’s independent legal system, which is of course protected by the Act of Union?

[Lucy Frazer]

We have a devolution Act that sets out very clearly the separate and distinct nature of Scotland. We have almost weekly contact with officials on no deal planning. Paul Candler, who is a director in the MOJ, had a director-level meeting with his colleagues from Scotland and Northern Ireland on 9 November. We are legislating on behalf of Scotland at the Scottish Government’s request and with their permission. We are working very closely with Scotland on a number of SIs. I met the Scottish Law Society chair, Michael Clancy, earlier this year.

[Joanna Cherry]

It is Government contact I am talking about, not contact with the Law Society, important as that is. The Minister should realise that Scotland’s independent legal system is protected not by devolution, but by the 1707 Act of Union. Scotland’s highest court has made a reference to the Court of Justice of the European Union on the question of whether article 50 is unilaterally revocable, not by the Government, but by this Parliament. The case will be heard on 27 November, but the UK Government are fighting it tooth and nail, even to the extent of attempting an appeal to the Supreme Court, despite the fact that an appeal to the Supreme Court is expressly prohibited in Scots law where there has been a unanimous interlocutory decision of Scotland’s highest court. Can the Minister tell me whether that is part of the plan to undermine Scotland’s separate legal system? How much money are the Government prepared to spend on keeping MPs in the dark about the revocability of article 50?

[Lucy Frazer]

This Government are committed to the Union and to respecting the distinct Scottish legal system. I am fully aware of the matter before the Supreme Court, and we look forward to its judgment.

Oral Answers to Questions

Debate between Joanna Cherry and Lucy Frazer

Tuesday 10th July 2018 Commons Chamber

[Lucy Frazer]

The Ministry of Justice is doing a number of things to improve innovation. In the courts themselves, we have a £1 billion programme that is digitalising our court services and bringing them up to date. We are also ensuring that our legal services sector continues to thrive and prosper globally. Only yesterday, we had the first meeting of the law tech panel, which is supported by Government but led by the industry to support innovation and technology for our legal services sector.

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

Last month, the Scottish Government produced the latest in their series of “Scotland’s Place in Europe” policy papers. The paper emphasises the importance of co-operation with the European Union on criminal justice and law enforcement for Scotland’s legal system, which is of course separate from the legal system for the rest of the UK. Will the Minister tell us what discussions she has had with her Scottish counterparts about that policy paper?

[Lucy Frazer]

The hon. and learned Lady makes an important point, because we have distinct legal systems in Scotland and in England and Wales, and we must recognise that. Last month, I had the pleasure of meeting Michael Clancy from the Law Society of Scotland to discuss a number of issues relating to Scotland. My officials meet regularly with their counterparts in Scotland.

[Joanna Cherry]

We know from the Chequers agreement that the Prime Minister is relaxing her red lines on the European Court of Justice. The Scottish Government stated in the paper that I mentioned that they would welcome ECJ jurisdiction on data protection matters to maintain data sharing for justice and law enforcement purposes. Just last week, the Exiting the European Union Committee recommended that the ECJ should continue to have jurisdiction over aspects of data protection after we exit the EU. Does the Minister agree with the Scottish Government and the Select Committee that that would be a good thing?

[Lucy Frazer]

The Prime Minister has made it clear that the ECJ will no longer have direct jurisdiction in this country. Where we continue to operate common rules, it will of course be appropriate that this country can look to the ECJ jurisprudence to decide the way forward.

Upskirting

Debate between Joanna Cherry and Lucy Frazer

Monday 18th June 2018 Commons Chamber

[Lucy Frazer]

I agree with my hon. Friend. I have not heard one Government Member say that they think that as a matter of principle this measure should not become law. I agree that this very important proposed legislation needs to be put through Parliament.

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

The Scottish National party deplores what happened on Friday in this House. It illustrates how the archaic rules of the House can sometimes be used to prevent the proper debate of important private Members’ Bills. Something needs to be done about it.

I welcome today’s announcement, and I congratulate the hon. Member for Bath (Wera Hobhouse) and Gina Martin on their campaigning on this issue. Upskirting is already a criminal offence in Scotland and has been since 2010. Will the Minister, in framing the new law for England and Wales, look at sections 9(4)(a) and 9(4)(b) of the Sexual Offences (Scotland) Act 2009, which in 2010 were brought in to make upskirting an offence in Scotland; and will she consult the expertise of my former colleagues in the sexual offences special prosecution unit at the Crown Office and Procurator Fiscal Service in Scotland, given that they have some seven or eight years’ experience of prosecuting this crime?

Oral Answers to Questions

Debate between Joanna Cherry and Lucy Frazer

Tuesday 5th June 2018 Commons Chamber

[Lucy Frazer]

The DWP is taking a number of measures to ensure that it gets decisions right the first time. It has recruited an extra 150 presenting officers and is taking feedback from the tribunals to ensure that the reconsideration process is as effective and as right as possible.

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

Yesterday, the DWP yet again decided not to appeal a PIP case for fear of losing, and it owes billions in back payments following successful tribunals. I am pleased to hear that the Minister has had discussions with the DWP, but will she tell us whether she specifically raised the distress that going through unnecessary appeals causes claimants and the waste of public money from the UK Government fighting cases?

[Lucy Frazer]

The hon. and learned Lady makes an important point. Nobody wants people to go to court unnecessarily and nobody wants the most vulnerable to be put under unnecessary pressure. Many parts of the system are doing their best. We are looking at digitisation to improve the process and to make the system easier to use, and we are also trying to get clearance times down. The judiciary is also working closely with the DWP to try to ensure that people get decisions right the first time and quickly.

[Joanna Cherry]

In Scotland, the new social security agency has at its heart a culture of dignity, fairness and respect. The Law Society of Scotland has said that the United Kingdom benefit system does not treat claimants with dignity and fails to develop best practice from learning from appeal decisions. What discussions did the Minister have with her DWP counterpart about the need to observe the principles of administrative justice in how the benefit system is administered and about how the DWP will learn from appeal decisions so that it stops making the same mistakes over and over?

[Lucy Frazer]

I discussed getting decisions right the first time with Minister for Disabled People, Health and Work, and we talked about the importance of getting feedback from the tribunal that can be fed into the DWP’s decision makers to ensure that they get decisions right the first time. I also liaise with Her Majesty’s Courts and Tribunals Service to ensure that all aspects of the process are managed effectively.

Oral Answers to Questions

Debate between Joanna Cherry and Lucy Frazer

Tuesday 24th April 2018 Commons Chamber

[Lucy Frazer]

The hon. Gentleman is right that, after we have left the EU, we will be able to determine our laws, which will benefit our country in the way that we decide.

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

At the moment, there are two British judges on the European Court of Justice: one from the English legal tradition and one from the Scottish legal tradition. During the transition period, the domestic legal systems of the United Kingdom will continue to be subject to the full force of the jurisdiction of the European Court of Justice, whether in relation to litigation between private individuals or enforcement against the United Kingdom. Why, then, have the UK Government agreed to article 6 of the draft withdrawal agreement?

[Lucy Frazer]

The judges at the ECJ make a very valuable contribution to our jurisprudence and to the rights of individual citizens. It is worth pointing out that once someone is appointed as a judge of the ECJ, they are not a representative of their country; they are an individual determining cases that come before them, without any partisanship towards their country. Indeed, if we had a British case before the Court, there would be no saying whether it would come before an English judge or any other judge.

[Joanna Cherry]

One of the things that means the European Court of Justice is not a foreign court is the presence of British judges on it, but article 6 of the draft withdrawal agreement, which appears to have been agreed, provides that there will be no British judges on the Court of Justice during the transition period. Effectively, they are getting the sack at the end of next March, despite the Court’s continued jurisdiction over the United Kingdom. Does the Minister accept that, as a rule of law issue, it is concerning that there will be no Scottish judge and no English judge on the Court of Justice during the transition period, despite the fact that these countries will continue to be subject to the Court of Justice? Will she persuade the Prime Minister and the Secretary of State for Exiting the European Union to revisit this issue in the negotiations to come, so that there will be British judges on the Court of Justice during the transition period?

[Lucy Frazer]

As I mentioned, once the judges are appointed, they act independently of their country, so if we respect the judgments and the integrity of the other judges who are there already, we should be satisfied that we will get justice.

Legal Aid: Birmingham Pub Bombings

Debate between Joanna Cherry and Lucy Frazer

Tuesday 27th March 2018 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Mr Hollobone.

I am extremely grateful to have the opportunity to respond on such an important issue in such an important debate, and I congratulate the hon. Member for Birmingham, Northfield (Richard Burden) on securing it. He has been very active in supporting his constituents and in making representations to the Legal Aid Agency, as the hon. Member for Birmingham, Yardley (Jess Phillips) has been in raising the profile more broadly. Like them, I welcome the families to Westminster today.

I understand why there is such strength of feeling on the subject from hon. Members on all sides. I have the deepest sympathies with the families and friends of those who were injured or lost their lives in the terrible atrocities that took place in Birmingham in 1974. I cannot imagine what they have been through. I understand the inquest plays a crucial part in the investigations that continue, and I appreciate that it plays an important role in enabling families to understand and make sense of what happened to their loved ones.

Much of the debate has focused on legal aid. The hon. Member for Birmingham, Northfield asked me to explain how legal aid differs in the various types of cases for which it can be granted in relation to an inquest. It is therefore important to identify the types of assistance that can be granted and have been sought in this case.

The Ministry of Justice acknowledges that, in certain cases, legal aid in the lead-up to an inquest may be required, and has ensured that early legal advice for inquests is available under legal aid for those who are eligible. I understand that such legal aid was sought and granted in this case. Next is the issue of legal aid for representation at the hearing itself. An inquest should be an inquisitorial process that focuses on establishing the facts of death. It should not really be an adversarial hearing, and should be conducted in a very different way from a court proceeding. Participants do not always need to present legal arguments and so, in most inquest hearings, the bereaved family do not need representation to participate in the process. Most inquest hearings are conducted without the need for publicly funded representation.

Having said that, publicly funded representation may be needed in certain circumstances and is then sought. Legal aid is available for legal representation at inquests under the exceptional case funding scheme. Legal aid is awarded through that scheme on a case-by-case basis. In deciding whether funded representation may be necessary, the Legal Aid Agency considers all the relevant individual facts and circumstances of the case, which usually include the particular circumstances of the family. Legal aid for representation at inquests is subject to means and merits tests. In such circumstances, means can be waived.

As the hon. Member for Birmingham, Northfield highlighted, the families have previously received publicly funded legal representation for the inquests on this matter.

[Joanna Cherry]

Like me, the Minister practised in the courts before she became an MP. Does she agree that, where the families of the bereaved are not represented at inquests, stones are often left unturned that would have been turned had the families had a lawyer?

[Lucy Frazer]

The hon. and learned Lady makes an important point, as always. The position is that it is not always necessary. If it is necessary, families are able to apply for it, but in his report on Hillsborough, the Bishop of Liverpool identified that, according to a 2003 fundamental review of death certification and investigation cases, no representation was needed in 79% of cases, because the families could represent themselves.

In many inquests, legal aid is not needed because the families do not need to advance legal arguments, because it is not an adversarial process, but I recognise that in some cases, it becomes a very adversarial process—that is not really appropriate, but it does become that—and legal aid can be and is sought. In fact, exceptional case funding has been granted in half the cases where people have applied for it.

Scheduling of Parliamentary Business

Debate between Joanna Cherry and Lucy Frazer

Monday 17th July 2017 Commons Chamber

[Joanna Cherry]

Yes. But if, as the Government have promised, the European Union (Withdrawal) Bill is going to guarantee all the rights that we already enjoy by virtue of our EU citizenship, the charter of fundamental rights should not be going. The charter defends all sorts of rights, such as data protection, children’s rights and the freestanding right to equality, which are not protected by the European convention on human rights.

[Lucy Frazer]

Would those rights not be protected when incorporated into our laws as British laws, notwithstanding that their source was the EU?

[Joanna Cherry]

The hon. and learned Lady is ably illustrating why we need a debate about this. Despite the fact that the EU charter of fundamental rights will not be part of domestic law, she thinks that those rights will, nevertheless, still be protected. Let us have a debate about how we are going to do that. That is my point. On the face of the Bill, it looks like these rights will be lost.

These rights are real. Just last week in the Supreme Court, a gentleman called John Walker was able to ensure equal pension rights for his husband thanks to EU law. That was a timely reminder of the value of EU law to our constituents. Those are important rights. What is more important than a married couple of two men or two women having the same pension rights as a straight couple? I personally find that very important, as I am sure do many other Members.

We cannot afford to fall behind the standard set by the European Union on human rights. But, on the face of it, the European Union (Withdrawal) Bill seems to be about to do that. We must insist on parliamentary time to debate these issues properly. I call on the Government to get their act together, have the courage of their convictions and bring the business to the Floor of the House. We can then debate some of the issues that I, and other hon. Members, have mentioned in a full and frank fashion. The Government should do that, rather than running scared from the policies that they were so keen to espouse when they thought they were going to have a whopping majority. They are not so keen now.

Investigatory Powers Bill

Debate between Joanna Cherry and Lucy Frazer

Tuesday 1st November 2016 Commons Chamber

[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.

Investigatory Powers Bill (Eleventh sitting)

Debate between Joanna Cherry and Lucy Frazer

Committee Debate: 11th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

[Joanna Cherry]

The hon. Lady may recall that, when I spoke about this on Second Reading, I said that I was not going to use the phrase “snoopers charter” because it is counterproductive, and nor was I going to use the phrase “mass surveillance,” but that I was going to use the phrase “suspicionless surveillance.” What is happening under section 94 of the Telecommunications Act will continue to happen if we pass these powers without questioning them properly: bulk acquisition warrants will authorise the acquisition of huge amounts of communications data on everybody living in the United Kingdom, which will then be analysed by computers at GCHQ without any further need for authorisation. My argument is that that is a form of suspicionless surveillance. While it may have some utility, as David Anderson has said, I am not convinced that it is either necessary or proportionate. I made some fairly detailed arguments last Thursday about the inadequacy of the operational case and will not repeat them.

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

I do not want to misquote the gentleman from BT as I do not have his exact words in front of me, but when we heard evidence from him on our first day in Committee, he said clearly that much of that information was already being collected. I would also like to point out, as I did in a speech on the Floor of the House, that it is clear that Google is already accessing this material and people seem to accept that—Google is analysing the content of our emails.

[Joanna Cherry]

I will deal with the hon. and learned Lady’s second point first. I accept her legitimate concerns about the extent to which private entities such as Google and others collect private data. Parliament should be looking at that, although it is not really the subject matter of this Bill. However, the crucial difference between Google’s collection of comms data and the UK Government’s, or its agencies’, is that Google does not have the coercive power of the state. It may have great corporate power—in fact, there is no “may” about it—but it does not have the state’s coercive power.

The hon. and learned Lady’s first point was that these powers already exist. We found out only very recently, when the Home Secretary announced it on 4 November last year, the day the draft Bill was published, that the data were already being collected in bulk under section 94 of the 1984 Act. That had never previously been admitted by the Executive—apparently it was known only by a handful of Cabinet Ministers. Parliamentarians had previously been led to believe that communications data retention and acquisition took place under the Regulation of Investigatory Powers Act 2000 and the Data Retention and Investigatory Powers Act 2014, because that legislation specifically permits the agencies to require comms data on national security and serious crime grounds.

As I said earlier, when section 94 of the 1984 Act was passed, no one envisaged that those powers would be used in that way. The mere fact that the powers are already being used does not necessarily mean that they are proportionate or that we should not carefully scrutinise their necessity and proportionality now that they are being put on a proper statutory footing. In an intervention on the hon. and learned Member for Holborn and St Pancras last week, I made the point that, if we follow the course of action the Scottish National party advocate, which is to remove parts 6 and 7 from the Bill until a proper operational case has been made, and if the agencies who are already using these powers say that they are legal under existing legislation, we will not be jeopardising national security, because the powers will continue to be used—although I stress that their underlying legality is open to question.

I do not want to take up much more time, but I want to make the point that, in the digital age we live in, communications data provide a detailed and revealing picture of somebody’s life. If we look at how comms data are defined under DRIPA and RIPA, we can see that they include the date, time, duration and type of communication, the type of communication equipment used, its location and the calling and receiving telephone numbers. That sort of information can reveal personal and sensitive information about an individual’s relationships, habits, preferences, political views, medical concerns and the very streets they walk on. That point was made in the Digital Rights case by the Court of Justice of the European Union:

“Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.”

Investigatory Powers Bill (Tenth sitting)

Debate between Joanna Cherry and Lucy Frazer

Committee Debate: 10th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[Joanna Cherry]

To deal with clause 119, I must outline why the Scottish National party wishes the entirety of part 6 to be removed from the Bill until such time as a convincing case has been made for the use of bulk powers and the legality of bulk powers has been determined. In our view, it is important not to pre-empt the terms of court judgments in cases currently considering bulk powers, as they will have a significant impact on the lawfulness of the approach set out in the Bill, which at present must, at the very least, be open to question.

The Government have produced an operational case in response to remarks made by a number of witnesses before the Joint Committee on the Draft Investigatory Powers Bill, who were concerned about the lack of such a case, and to the Joint Committee’s recommendation 23. The Home Office published a 47-page operational case for bulk powers alongside the Bill. That document was produced within three weeks, and the first half of it is introductory, covering topics such as how the internet works and what the dark net is. Only the second half of the document, characterised as an operational case, addresses the capabilities with which we are concerned.

Going goes through the operational case, we can see that each power—bulk interception, bulk equipment interference, bulk communications data acquisition and bulk personal datasets—has an average of about five pages devoted to it. Bulk interception has only about four. Most of the material dealt with is already public in other explanatory documents. It seems that, despite the opportunity to provide concrete, solid examples of how bulk powers bring unique value, most of the material in each section is kept at a high and general level.

For example, the first three pages of the four-page case justifying bulk interception cover an introduction to the power, the current legal position and new safeguards in the Bill. The fourth and final page provides three one-paragraph case studies, which members of the Committee will all have had the opportunity to read. One in particular deals with counter-terrorism, giving an example of where the security and intelligence agencies’ analysis of bulk data uncovered a previously unknown individual in 2014 who was in contact with a Daesh-affiliated extremist in Syria suspected of involvement in attack planning against the west.

The case study says:

“As this individual was based overseas, it is very unlikely that any other intelligence capabilities would have discovered him. Despite his attempts to conceal his activities, the agencies were able to use bulk data to identify that he had recently travelled to a European country. Meanwhile, separate intelligence”—

that is, separated from the bulk-generated intelligence—

“suggested he was progressing with attack planning. The information was then passed by the agencies to the relevant national authorities. They disrupted the terrorists’ plans and several improvised explosive devices were seized.”

Undoubtedly, every hon. Member on the Committee and in the House would wish such activities to be intercepted and prevented by the security services. I applaud the security services for the work that they do, but what concerns me is that analysing this case study in any meaningful way is challenging, because there is inadequate information to begin to test the accuracy of the case study or to challenge its conclusions. Nevertheless, I have had some initial analysis of it carried out, which suggests that perhaps the ends could just as easily have been achieved by the use of targeted interception. I will give a couple of examples to show why.

The case study refers to a previously unknown individual who was in contact with a Daesh-affiliated individual, who presumably was known. It is possible, therefore, that targeted interception may have uncovered this previously unknown individual. Although the Daesh-affiliated individual was already being monitored, there is no clear explanation in the case study of why bulk interception was necessary. It seems likely that intercepting the Daesh-affiliated individual’s contacts in a targeted manner might have identified the previously unknown individual.

That is just one of a number of issues raised about this case study by the analysis that I have had carried out. I will not take up the Committee’s time with them all, but that is one example.

The value that this case study has is that in this case a previously unknown individual was identified. Questions as to why targeted interception would not have worked are not addressed, nor are questions as to why other targeted capabilities were not used. The case study suggests that the initial identification is the only aspect in which bulk interception played a role, with the rest of the case study a result of other capabilities and separate intelligence. No information is provided about the scale of collateral intrusion undertaken when intercepting in bulk and there is no assessment of the proportionality of bulk interception. Also, given that the attack was not in the UK, there is no explanation of the necessity of UK agencies playing a role, although that is perhaps a slightly lesser consideration.

There is no information outside this case study as to the frequency of events of this kind or whether in similar cases different methods produced different results. As such, it is impossible to analyse it and make any kind of independent assessment of the necessity or proportionality of bulk power.

This is not nit-picking. These are very wide-ranging powers. The hon. and learned Member for Holborn and St Pancras, who speaks for the Opposition, described them as breathtakingly wide powers. They have never before been debated or voted on in this Parliament, and it is crucial that we get them right. We are debating and voting on them, at a time and in a climate whereby there is quite a lot of independent evidence available from the United States of America that suggests that bulk powers are not as efficacious as is suggested in the operational case produced by the Government.

I will say a little about what happened in the States, because it is important to loop to that to understand what the Scottish National party says would be the appropriate way to approach the production of an operational case to justify bulk powers.

In the USA, the Snowden revelations revealed that the National Security Agency was running a bulk domestic telephone records programme. The US intelligence community put forward strong arguments for keeping that programme going, and to bolster its position it compiled a list of 54 counter-terrorism events in which it said that section 215 of the USA Patriot Act, which underlined that bulk collection, contributed to a success story.

In America, two independent bodies undertook reviews related to those powers to determine whether the case studies put forward by the intelligence agencies were credible and accurate. They determined that only 12 of the 54 counter-terrorism events cited by the security services had any relevance to the exercise of bulk powers under section 215 of the USA Patriot Act. With access to classified material, one of the independent groups— the President’s Review Group on Intelligence and Communications Technologies, which is a very high-powered body set up under the auspices of President Obama—concluded:

“Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony metadata was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders”.

The other body, the Privacy and Civil Liberties Oversight Board, concluded very similarly that the programme of bulk collection under section 215 had

“shown minimal value in safeguarding the nation from terrorism. Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

I quote those two bodies because they are independent.

I am aware that Mr William Binney, who previously worked for the National Security Agency, gave evidence to the Joint Committee. His evidence could be summarised as “bulk powers cost lives”. He is concerned about the “needle in a haystack” argument. I am aware from previous discussions that certain members of the Committee have concerns about the evidence of Mr Binney. Even if we set his evidence to one side, we cannot set to one side the evidence of those two very high-level, independent American committees that looked at bulk collection in the USA. Their conclusions seriously question the information they were given by the security services that the bulk powers were necessary to prevent terrorist outrages. They also made suggestions on existing targeted capabilities.

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

We have the analysis by David Anderson of the efficiency and efficacy of bulk powers, and he talks from paragraph 7.22 onwards about the importance of bulk powers. For example, he states:

“GCHQ explained that its bulk access capabilities are the critical enabler for the cyber defence of the UK, providing the vast majority of all reporting on cyber threats and the basis for counter-activity.”

[Joanna Cherry]

I cannot gainsay that. I am well aware that David Anderson would not go as far as I am going in these submissions. He has reached the conclusion that some bulk powers are necessary, but the passage in his report that the hon. and learned Lady quotes basically starts with a phrase along the lines of “GCHQ has assured me”. My point in drawing Members’ attention to what happened in the USA is that, although the US security services compiled a list of 54 counter-terrorism events in which they said bulk powers had contributed to a success story, one of the two committees I have quoted reached the view that it could not identify a single instance where bulk powers had contributed to a counter-terrorism success story. There is a debate to be had here.

[Lucy Frazer]

David Anderson goes on, in the same section of his report, to acknowledge that it is difficult for the public to take examples on trust. He recognises the limitations of what was shown to him, but states:

“The six outline examples at Annex 9 to this Report go a little way towards remedying that defect. They illustrate the utility of bulk data capabilities more generally”.

He recognises the limitations, but still acknowledges the efficacy of the powers.

[Joanna Cherry]

The hon. and learned Lady makes a good point. David Anderson acknowledges the efficacy of the powers and has been privy to certain information as he has a high security clearance. Not all of us can be privy to that information. I am suggesting that there should be an independent evidence base for the bulk powers. That would involve independent assessors with high security clearance undertaking forensic examination of the necessity and effectiveness of the bulk programmes.

We know, because the Home Secretary has told us—there was an interesting article about this in The Guardian today—that the bulk powers have been running for a long time. The headline of the article is, “UK spy agencies have collected bulk personal data since 1990s, files show”.

I will come back to that article in a moment, but we know that the bulk powers are operational. Given that they have been running for a while, a full list of cases where they have been required should be easy to provide. That should not be to this Committee, but to an independent review staffed by high-level individuals with the highest security clearance—the sort that David Anderson has. I have in mind such people as retired judges and retired professionals with an interest in the area.

--- Later in debate ---

[Joanna Cherry]

These powers are not being used only in emergencies. That is the point. We are told that the powers are being used daily and that those data are being sucked up and collected daily, and the Bill seeks to put that on a legal footing. I am saying that there is not sufficient independently assessed evidence to justify the continuation of such powers and that we need a proper independent review.

I am suggesting that there should be independent, security cleared assessors to consider whether such powers pass the legal tests of necessity and proportionality. They would need to conclude that the powers were strictly necessary and that the same results could not be achieved using more proportionate and less intrusive means. The two American committees I mentioned concluded that the same information could be achieved using more proportionate and less intrusive means, so we in the United Kingdom should not legislate gung-ho for the continuation of such breathtakingly intrusive surveillance powers without being certain that they are necessary and proportionate. We do not have sufficient evidence to reach that conclusion.

[Lucy Frazer]

What does the hon. and learned Lady think the independent reviewer of terrorism legislation is for, other than to review these powers? He reviewed the powers in his report.

[Joanna Cherry]

I do not accept that the independent reviewer has carried out the exercise that I am suggesting. He fulfils a particular function, and we are talking about setting up a panel of individuals to consider the necessity and proportionality of these powers. They could consider in detail certain information that we, as hon. Members, would not be able to see. David Anderson is one individual who fulfils an important function and whose work has greatly assisted everyone on the Committee, and all hon. Members, in trying to understand what underlies the Bill.

--- Later in debate ---

[Joanna Cherry]

David Anderson said the following in paragraph 1.12 of his report, “A Question of Trust”:

“Though I seek to place the debate in a legal context, it is not part of my role to offer a legal opinion (for example, as to whether the bulk collection of data as practised by GCHQ is proportionate). A number of such questions are currently before the courts, which have the benefit of structured and opposing legal submissions and (in the case of the IPT) the facility to examine highly secret evidence, and which are the only bodies that can authoritatively determine them.”

There we have the words of the man himself. Although David Anderson seeks to place the debate in a legal context, he does not see it as part of his role to offer a legal opinion on the proportionality of GCHQ’s bulk collection of data. At least two cases now before the courts will result in judgments on whether the powers are proportionate.

[Lucy Frazer]

If the hon. and learned Lady reads the next paragraph, she will see that David Anderson is simply making a broad statement about the fact that he is not giving legal advice generally. He is putting forward recommendations for Parliament to consider.

[Joanna Cherry]

Indeed; he is putting forward recommendations. I am advocating an independent review looking at the operational case for bulk powers. It would look at whether the powers are necessary and proportionate, and it would provide an opinion that could then be laid before both Houses, for us to see if the Government’s case has been made. I am concerned that the case is not sufficient at the moment. I say that against the background not of Mr Binney’s evidence, but of the findings of high-level USA investigatory bodies.

Investigatory Powers Bill (Fifth sitting)

Debate between Joanna Cherry and Lucy Frazer

Committee Debate: 5th sitting: House of Commons
Thursday 14th April 2016 Public Bill Committees

[Joanna Cherry]

I wish to speak about the service and implementation of warrants outside the UK. What I have to say applies equally to clauses 35 and 36. The genesis of my submission is not corporate concerns but strict legal principle. Violation of that principle would have important international political and commercial implications.

The Minister said a moment ago that everyone must play their part; I presume that he meant in fighting terrorism and serious crime. I wholeheartedly agree, but everyone must play their part in accordance with law. Clauses 35 and 36 seek to replicate provisions that are already in DRIPA. At the time when DRIPA was passed, the Government claimed that RIPA had always had extraterritorial effect and that the provisions in DRIPA were simply intended as clarification, but that claim was misleading and ill-founded in law.

As I tried to indicate in my intervention a moment ago—it was partly in jest, as Conservative Members frequently complain about legislation from continental Europe, but it was also serious—in general terms, legislation passed by the UK does not have direct effect in other jurisdictions, just as we would not expect the law of France to have direct effect in the United Kingdom. For the Government to claim that RIPA had extraterritorial effect without the Act even saying so makes absolutely no sense.

The Minister referred to David Anderson’s report, “A Question of Trust”. David Anderson noted at paragraph 11.17 of the report that

“overseas service providers are generally unhappy with the assertion of extraterritoriality in DRIPA 2014, which they did not necessarily accept (despite the view of the UK Government) to have been implicit in the previous law and had not encountered in the laws of other countries.”

As a Scottish nationalist, I forebear from commenting on the unique assertion of the United Kingdom that its law applies in everyone else’s country when others do not claim that, but I will move on with the quote from David Anderson:

“While legal compulsion was in principle preferable to voluntary compliance, it was thought that the unilateral assertion of extraterritorial effect would be met by blocking statutes, was not ‘scalable to a global approach’ and was viewed as ‘a disturbing precedent’ for other, more authoritarian countries.”

There is a concern that, if the United Kingdom decides to tell the world that its legislation applies in other countries, it would be a spur for more authoritarian regimes to do likewise.

David Anderson went on to note that when countries seek to enforce their legislation extraterritorially, such powers might come into conflict with the legal requirements in the country in which the company that has been asked to comply through a legal request is based or stores its information. Companies explained to David Anderson that they did not consider it was their role to arbitrate between conflicting legal systems. That must be right. The protection of human rights should not be left to the good will and judgment of a company, nor indeed should the enforcement of important powers to fight terrorism and serious crime be left to the judgment of a company.

David Anderson went on to say that principled concerns had been expressed by companies:

“They expressed concerns that unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”

During discussion of David Anderson’s reports, about the draft Bill and on Second Reading on the Floor of the House, we have heard frequently that the Bill, if the British Parliament gets it right, could be an international template. That is what worries me about the clauses: the example is not a good international one to set, unilaterally to declare that our law must apply in other countries, because there is a real risk that authoritarian regimes might do likewise. We would not want that.

[Lucy Frazer]

I am looking at the clause, which is not massively dissimilar to all the provisions in the White Paper about service on companies in or out of jurisdiction. The clause is on service, so I am struggling with the hon. and learned Lady’s talk about extraterritoriality.

[Joanna Cherry]

As I said, I am dealing with clause 35, “Service of warrants outside the United Kingdom”, and with clause 36, “Duty of operators to assist with implementation”, which serves clause 35 and imposes a duty on operators to assist with implementation outside the UK. That is why, as I said at the beginning of my submission, clauses 35 and 36 have to be discussed together.

I want to be clear that I am not saying that we should not have provisions that deal with extraterritorial enforcement, or that we should not have allowance for it. Clearly, we have to have that, but the question is how we go about it. Mutual legal assistance agreements have already been mentioned and, in my submission, the most appropriate and probably most successful way for the British Government to seek to access information held overseas or by companies based overseas, or to have provisions that will allow the Government to do so, is to extend and improve the use of the mutual legal assistance agreements.

In “A Question of Trust”, David Anderson concluded in recommendation 24 that

“the Government should…seek the improvement and abbreviation of MLAT procedures, in particular with the US Department of Justice and the Irish authorities”—

Ministers alluded to that—

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

David Anderson’s report also referred to the work of Sir Nigel Sheinwald, and we have heard a bit about that already. David Anderson suggested that Sir Nigel’s could be the “decisive voice” in the matter. In a written statement in response to the Anderson review on 11 June last year, the Prime Minister said:

“the Government will be taking forward Sir Nigel’s advice, including pursuing a strengthened UK-US Mutual Legal Assistance Treaty process and a new international framework. As David Anderson recognises in his report, updated powers, and robust oversight, will need to form the legal basis of any new international arrangements.”

It is most regrettable that, in the light of what the Prime Minister said, this Bill is completely silent on the promised new framework. Instead, it simply returns to what I would submit is a rather lazy and potentially dangerous assertion of extraterritorial effect. It is concerning that a piece of legislation that purports to be comprehensive on this matter is silent on the significant issue of how surveillance operates in the global communications environment, despite the fact that the Prime Minister outlined the need for reform.

My argument is that these two clauses are wholly inadequate to achieve what the Government say they want to achieve. They fly in the face of legal principle and, importantly, they could cause international political difficulties as well as international commercial difficulties.

Investigatory Powers Bill (Fourth sitting)

Debate between Joanna Cherry and Lucy Frazer

Committee Debate: 4th sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[Joanna Cherry]

The hon. Lady is absolutely right. I stand corrected. Fortunately I have the assistance of David Anderson on this point. He has made the point that whereas he sees envisaged their utility in identifying a defined group or network—for example, a specific organised crime group—he remains of the view that the wording of clause 15 is “extremely broad”. It should concern all members of this Committee that the independent reviewer of terrorism legislation considers the wording of this clause to be extremely broad. If the Government will not take the Scottish National party’s word for it, then they can take the word of the independent reviewer of terrorism legislation. I seek the Government’s assurance that they will go away and look again at clause 15 and clause 27 very carefully, in the light not only of what I have said but, more importantly, what has been said by Sir Stanley Burnton, Lord Judge and David Anderson.

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

I thank the hon. and learned Lady for her very detailed points. Does she accept that even though David Anderson thinks that the wording is too broad, the amendments that she proposes would make the provision too narrow? If the words “or organisation” are taken out then only a person or a premises will be identified, which would not catch the circumstances that David Anderson is thinking about. In her submission, the hon. and learned Lady identified that while the current wording was too broad, some of the organisations that she mentioned did recognise that in some circumstances the thematic powers were useful.

[Joanna Cherry]

The hon. and learned Lady makes a point that I have to take on board to a certain extent. I suspect that my amendments to clause 15 go further than David Anderson would if he were drafting an amendment to this clause. We are at a very early stage in this procedure. I am really seeking an assurance from the Government that they will take on board, if not my concerns, then at the very least the concerns of Sir Stanley Burnton, Lord Judge and David Anderson, and that they will take away clause 15 and clause 27 and look at them again.

Investigatory Powers Bill

Debate between Joanna Cherry and Lucy Frazer

Tuesday 15th March 2016 Commons Chamber

[Lucy Frazer]

If the hon. and learned Lady thinks that international comparisons are important, does she agree that the judicial authorisation procedure proposed by the Home Secretary goes further than in other European examples, such as Germany, the Netherlands and France?

[Joanna Cherry]

We need to compare apples with apples and oranges with oranges. A more correct comparison is with jurisdictions such as Canada and America, the systems of which are more similar to ours than the continental European jurisdictions that the hon. and learned Lady describes, but I will come back to that when I get to authorisation.

I am sure everyone in this House wants to get the balance right between protecting civil liberties, and giving the security services and the police the necessary and proportionate powers to fight serious crime and terrorism. However, we in the Scottish National party believe that the Government’s attempt has not got that important balance right and we are looking forward to working with other parliamentarians to try to get it right. We are worried that the Government are not giving sufficient time for the consideration of this enormous Bill. The 14 Home Office documents relating to the Bill that were released to Parliament on 1 March, including the Bill itself, extend to 1,182 pages, which is almost treble the amount of material released with the draft Bill last November. There is a suspicion that the amount of material being released in large tranches, coupled with relatively short timescales within which to consider and amend proposals, is an indication that the Government do not really want proper parliamentary scrutiny of this. We are determined to do our best to make sure that sufficient parliamentary scrutiny is provided.