Illegal Migration

Debate between Joanna Cherry and Suella Braverman

Monday 5th June 2023 Commons Chamber

[Suella Braverman]

My hon. Friend is absolutely right that the processing of asylum claims is fundamental to bearing down on the backlog and reducing the number of people accommodated in hotels, which costs us £6 million a day right now. That is why I am very pleased that we have increased the number of caseworkers making those decisions and improved and made the process more efficient and speedier, so that we can make progress in bearing down on the asylum backlog, ensure that we save money for the taxpayer, and, ultimately, fix the challenge of illegal migration.

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

May I take the Home Secretary back to the point about Afghan asylum seekers made by my hon. Friend the Member for Glasgow Central (Alison Thewliss)? As my hon. Friend said, the latest ONS figures show that only 108 people have been resettled under pathways 1, 2 and 3 since the fall of Kabul nearly two years ago. At the same time, 8,429 Afghans arrived in the UK by small boats in the year ending March 2023, as compared with 2,466 in the previous year. Can the Home Secretary not see that the absence of functioning safe and legal routes means that many eligible Afghans to whom the United Kingdom owes a debt of honour, including war veterans, feel that they have no choice but to use small boats to get here? Can she not acknowledge that Home Office intransigence on the Afghan schemes is pushing vulnerable Afghans—some of them veterans, as I say—to come here by small boats?

[Suella Braverman]

I disagree. I am very proud that a high number of Afghans have been resettled in and welcomed to the United Kingdom between 2015 and 2022. Almost 50,000 people have been resettled or relocated; more than 21,000 of them went through the Afghan schemes—the ACRS and ARAP—and more than 28,000 went through established resettlement schemes relating to other countries. I think that that is a good track record. There is a high number of people coming from those countries where there are troubles. The simple truth is this: there is never a good reason to pay a people-smuggling gang to embark on a lethal journey and take an illegal crossing over the channel to get to the UK.

Illegal Migration Bill

Debate between Joanna Cherry and Suella Braverman

2nd reading
Monday 13th March 2023 Commons Chamber

[Suella Braverman]

I am afraid that my right hon. Friend raises a very worrying fact about what we are seeing. When I have spoken to police chiefs around the country, they tell me that criminality—particularly drug supply and usage—is now connected to people who came here illegally on small boats in the first place.

Thirdly, Rwanda is a fundamentally safe country, as affirmed by the High Court. It has a proud track record of helping the world’s most vulnerable, including refugees, for the United Nations.

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

People who are same-sex attracted and trans people are not covered by anti-discrimination laws in Rwanda. Does the Home Secretary think that makes it a safe country for gay people and trans people?

[Suella Braverman]

I am sure the hon. and learned Lady has read the High Court judgment, which is an exhaustive and authoritative analysis by senior, learned judges of how our world-leading Rwanda partnership complies with international obligations, including the European convention on human rights and the refugee convention. It has been deemed to be a proper, lawful partnership. I refer her to the judgment.

Illegal Migration Bill

Debate between Joanna Cherry and Suella Braverman

Tuesday 7th March 2023 Commons Chamber

[Suella Braverman]

Our 10-point plan announced in December deals with the issue of asylum accommodation. It is unacceptable that over 40,000 people are being accommodated in hotels all over the country, at a cost of £6 million a day. My right hon. Friend the Minister for Immigration is therefore working intensively with other Departments and local authorities throughout the country to identify and procure sustainable and appropriate asylum accommodation.

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

The Home Secretary has often said that she would be quite happy if the United Kingdom left the European convention on human rights, and when the Justice Secretary gave evidence to the Joint Committee on Human Rights last year, he said that the Government were not ruling out leaving the convention. The Home Secretary said in her statement that she cannot make a definitive statement of compatibility with the ECHR under section 19 of the Human Rights Act 1998, which comes as no surprise to most of us. Is the plan behind the Bill simply this: the legislation will go through in the certain knowledge that the domestic courts of the United Kingdom will find that it is incompatible with international law and the ECHR; and then the Tories will fight the next general election on a promise to take the United Kingdom out of the European convention on human rights? That is the whole point of this, is it not?

[Suella Braverman]

I refer the hon. and learned Lady to her comments on the Rwanda partnership about a year ago. Many people here denounced it as unlawful, cruel and illegitimate, yet not very long go we had an exhaustive and authoritative judgment from the High Court saying the exact opposite—that it is compliant with human rights, compliant with the refugee convention, and lawful.

Migration and Economic Development

Debate between Joanna Cherry and Suella Braverman

Monday 19th December 2022 Commons Chamber

[Suella Braverman]

My hon. Friend is right. We have always maintained that this policy is lawful, and today the court has upheld that. We know that further legal challenges are possible, and we will continue to defend this policy vigorously in the courts. However, once the litigation process has come to an end, we will move swiftly in order to be in a position to operationalise the policy and deliver on our promise.

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

Can I caution the Home Secretary gently against getting overexcited about a decision at first instance? Often, important constitutional decisions at first instance are overturned on appeal. A recent example was when the last Prime Minister but one unlawfully prorogued Parliament. I think an appeal is inevitable. In the meantime, removals to Rwanda cannot take place because of the interim measures issued by the European Court of Human Rights. Perhaps she would like to explain to some of her Back Benchers the concept of an interim order issued by a judge sitting alone to preserve the status quo, which happens, I believe, in English law regularly by way of injunction.

The Home Secretary seems to be implying that she will obtemper the order of the European Court of Human Rights issued under article 34 of the convention, which the United Kingdom is bound by. I know she is not a great fan of the convention, and a lot of her Back Benchers are asking her about the notwithstanding clause, so is it her intention to domestically legislate her way out of our international treaty obligations?

[Suella Braverman]

It is not appropriate for me to speculate on the claimants’ response or whether there will be any appeals following today’s judgment. We welcome today’s findings and we will vigorously defend any appeal on the substantive matters of the lawfulness of the policy. We have been clear that, in designing and introducing our legislation next year, we will have to ensure that it is sufficiently robust to promote a scheme to ensure that if people arrive here illegally, they will be detained and swiftly removed to a safe country for your asylum claim to be processed.

Western Jet Foil and Manston Asylum Processing Centres

Debate between Joanna Cherry and Suella Braverman

Monday 31st October 2022 Commons Chamber

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

May I gently remind the Home Secretary that it is not illegal to seek asylum? What is illegal is to detain people without a proper basis in law. Will she confirm that she has ignored legal advice that keeping asylum seekers at Manston for more than 24 hours could be illegal detention? Has she been advised that what is happening at Manston may amount to unlawful deprivation of liberty in terms of article 5 of the European convention on human rights, and inhuman and degrading treatment in terms of article 3? Despite her best efforts, we are still bound to comply with the convention by virtue of domestic law. What will she do about all of this? Even if she does not care about the human rights of the people detained at Manston, does she understand that her failure to obey the law may end up costing taxpayers vast amount of money in court fees and damages?

[Suella Braverman]

I confirm that I have not ever ignored legal advice. The Law Officers’ convention, which I still take seriously, means that I will not comment on the contents of legal advice that I may have seen. What I will say is this: I am not prepared to release migrants prematurely into the local community in Kent to no fixed abode. That, to me, is an unacceptable option.

Oral Answers to Questions

Debate between Joanna Cherry and Suella Braverman

Thursday 24th September 2020 Commons Chamber

[The Attorney General]

I thank my hon. Friend for raising this important point. There has been an unprecedented focus over the last few years on ensuring that investigators and prosecutors are properly equipped to deal with large volumes of electronic evidence. The proliferation in technology and digital devices has put pressure on the disclosure process and notably increased the resources required. That does present a challenge for our investigators and prosecutors. There is not a silver bullet that will solve it, but I can assure my hon. Friend that this issue is not being left to languish. The Crown Prosecution Service, in particular, is investing in tools and working closely with its policing colleagues to meet these challenges.

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

What recent assessment she has made of the effectiveness of her role in ensuring compliance with (a) domestic and (b) international law.

[The Attorney General (Suella Braverman)]

On 10 September, I wrote to Select Committee Chairs to set out the Government’s legal position on the withdrawal agreement and the provisions in the UKIM Bill, and that position has not changed. We will ask Parliament to support the use of clauses 42, 43 and 45 of the UKIM Bill, and any similar subsequent provisions, only in the case of the EU being engaged in a breach of its legal obligations and thereby undermining the Northern Ireland protocol and its fundamental purpose. This creates a legal safety net and takes powers in reserve whereby Ministers can act to guarantee the integrity of the United Kingdom and protect the peace process. We are very clear that we are acting in full accordance with UK law and the UK’s constitutional norms.

[Joanna Cherry]

The Attorney General has justified her support for the Bill by reference to the domestic legal principle of parliamentary supremacy and the judgment of the UK Supreme Court in Miller. But in that case, the UK Supreme Court also said, at paragraph 55, that “treaties between sovereign states”, such as the withdrawal agreement,

“have effect in international law and are not governed by the domestic law of any state.”

The Supreme Court was quite clear that such treaties

“are binding on the United Kingdom in international law”.

Why did the Attorney General omit reference to that part of the Supreme Court’s judgment? Did she not learn the rule against selective citation when she was at law school?

[The Attorney General]

On the principle, the dualist nature of our constitution makes it clear that international law and international treaty obligations only become binding in the UK until and unless Parliament says they do. That is a reflection of the supremacy of Parliament and of how, effectively, international law gives way to domestic law.

I am grateful to the hon. and learned Lady for several reasons. The first is for intervening in the Miller litigation. Her intervention allowed the Supreme Court to find unanimously, and hold on this point, for the sovereignty of Parliament when it comes to international law. Secondly, she has allowed me to give examples of where domestic legislatures have acted in breach of international obligations. She will be familiar with the controversial “named persons” legislation that was introduced by the SNP at Holyrood. It was ruled by the Supreme Court to be in breach of international law, namely article 8 of the European convention on human rights. Finally, I thank the hon. and learned Lady for allowing me to refer to her point about breaching the rules and the rule of law. May I gently suggest that she directs her anger closer to home: towards her SNP colleagues and those who sit on the National Executive Committee, who, as we speak, appear to be changing the rules to prevent her exclusively from standing as an MSP? Breaking the rules—the SNP could write the textbook on it!

--- Later in debate ---

[The Attorney General]

The Coronavirus Act 2020 was put before Parliament and went through every stage that a Bill is expected to go through. Any regulations made under it are also subject to parliamentary approval. There is also a sunset provision in the Coronavirus Act, which means it will expire automatically after two years, if not extended. There is a parliamentary review every six months, which will give this Parliament the chance—for example, this coming Wednesday—to vote on a motion stating that the Act should not end.

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

On a point of order, Mr Speaker.

Oral Answers to Questions

Debate between Joanna Cherry and Suella Braverman

Thursday 3rd May 2018 Commons Chamber

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

T6. The3million is an organisation representing EU nationals living in the UK. Last month it submitted 128 questions to the Home Office concerning the UK Government’s proposals for settled status. I realise that things are pretty chaotic at the Home Office at the moment, but what discussions has the Minister’s Department had about responding to the very real concerns of the 3 million EU nationals living in the United Kingdom?

[Suella Braverman]

The hon. and learned Lady raises an important point. There has been extensive consultation, dialogue and discussion between Ministers at the Department for Exiting the EU and diaspora groups. I met members of the Romanian diaspora at the Romanian embassy, and the Under-Secretary, my hon. Friend the Member for Worcester (Mr Walker), has recently met members of the French diaspora. We have this engagement, and it is important. People can rest assured that the position of EU citizens will be safeguarded through the legislation due to come through Parliament in the autumn.

European Union (Withdrawal) Bill

Debate between Joanna Cherry and Suella Braverman

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Joanna Cherry]

I am grateful to the Minister for that. I had understood that the revision and repeal of the Human Rights Act was on the back burner, but Members on this side of the House and many Conservative Members can celebrate a great victory if that plan has now been dropped and the Government are backing down on it. Unfortunately, I very much doubt that we will be in the mood for celebration as we are facing the Government’s chaotic plans for Brexit, and that is what we have to discuss today.

My colleagues in the Scottish Government in Edinburgh have recently reiterated their firm commitment to the idea that international human rights norms should not just be signed up to by the jurisdictions of these islands, but should be given direct effect by giving individuals and businesses the opportunity to raise and realise their rights in the courts. The Scottish Government have indicated that they intend to

“implement the socio-economic duty in the Equality Act 2010 by the end of this year, placing a requirement on key parts of the public sector, including Scottish Ministers, to have due regard to reducing the inequalities caused by socio-economic disadvantage when taking strategic decisions. This is a key component of our approach to tackling poverty.”

The Scottish Government also committed in their programme for government to look at how they can further embed human, social, cultural and economic rights, including the UN convention on the rights of the child. That is an indication that the Scottish Government’s direction of travel on international human rights norms is very different from the UK Government’s. It reflects the fact, as I said earlier, that human rights are not a reserved matter save in so far as the repeal or amendment of the Human Rights Act is concerned. Indeed, the Scottish Government have the power to legislate to protect human rights and intend to do so.

That leads me to comment briefly on new clause 78 and a new right in relation to equality that is intended to apply across the United Kingdom. There is a laudable intention behind the new clause, but its application in Scotland, Wales and Northern Ireland would require discussion with and the consent of devolved Administrations, if it were to be incorporated into the devolution statutes. The Scottish Government’s and Scottish National party’s position on human rights also reflects the wishes of voters in Scotland, who voted to remain in the EU by a considerable margin and voted in considerably larger numbers for parties that support international human rights norms than for those that do not.

It is about time that this Parliament started to recognise that views across these islands are quite divergent from the sort of Brexit that the Government are proposing. The cross-party amendments would go some way towards the aim of keeping us in the charter and keeping remedies for UK citizens. Of course, that is not to say that there are not many people in England and Wales who voted to leave and also wish to see the charter of fundamental rights preserved. We heard, if I may say so, a typically eloquent speech by the right hon. and learned Member for Beaconsfield, who said that the rights that have come into our law as a result of our membership of the European Union have done good across these islands, particularly for the most vulnerable people in our society. One would hope that we could agree on that on a cross-party basis.

A lot of misinformation is going around about the charter, and that stems from a resistance to the idea that it is either desirable or necessary for international human rights norms to have direct effect in the United Kingdom. We have to recognise that the logical result of that antipathy to giving direct effect to international human rights norms is to take away rights, and the ability to realise them, from British citizens and businesses. That is surely not a desirable state of affairs, no matter which side of the House one sits on.

As we have heard from a number of hon. Members, the Government have tried to reassure us that importing EU law without also importing the charter will make no difference to the protection of rights in the various jurisdictions of the United Kingdom. Indeed, they state in paragraphs 99 and 100 of the explanatory notes to the Bill that it is unnecessary to include the charter as part of retained law because it merely codifies rights and principles already inherent in EU law. That is what the Minister told us from the Dispatch Box. As others have said, that rather begs a question: if it is just a simple codification, why bother not incorporating the charter?

As I pointed out in an intervention on the Minister, the Exiting the European Union Committee heard evidence from a senior legal academic who said that there will be legislation in retained EU law that refers to the charter, so there will be a lack of legal certainty if the charter is not there. The Minister would no doubt say, “Yes, but the general principles will still be there.” But the charter existed as a codification of the general principles in order to make them more readily accessible.

I am interested to see the list that the Minister is going to produce on 5 December, but he could make his life a lot easier—I know that he and his colleagues have a lot on their plate at the moment—if he just incorporated the charter, rather than running around with bits of paper listing the general principles when they are all listed in the charter anyway. Surely that would be the logical and practical thing to do; unless there is, to use someone else’s phrase, some devilish plot, whereby removing the charter of fundamental rights means that rights will be removed. There is some evidential basis for believing that at least some Government Members think it is a good thing not to incorporate the charter of fundamental rights because it includes rights that they do not like. I am sorry to single out one Government Member, but I did read the article in The Sun yesterday by the hon. Member for Fareham (Suella Fernandes). I am not normally a reader of The Sun, but it caught my eye on Google that it contained an article about the charter of fundamental rights and I thought that every newspaper should be given a chance from time to time, so I had a little look. Like me, the hon. Lady is a lawyer, and she writes:

“This week Parliament will be asked to vote on whether to incorporate the EU’s Charter of Fundamental Rights into UK law. If Labour, acting with others, manage to force this through there will be legal chaos. Not only will it hand new and long lasting powers to UK courts”,

but it has also

“crept into many areas of UK law, from asylum to even national security.”

So there we have it in the words of at least one Conservative Member. There are things in the charter of fundamental rights that some on the Government Benches do not wish to be incorporated into our law.

[Suella Fernandes]

I am flattered that the hon. and learned Lady is quoting me in the Chamber. Does she not find it odd that the effect of her proposals would actually be legal chaos and uncertainty? We would have interacting rights regimes, with the convention through the Human Rights Act, and the charter. This would be precisely at the time at which the Bill is designed to provide legal certainty for businesses, individuals and other Governments.

[Joanna Cherry]

With respect, we have all that at present. The status quo is that the ECHR and the charter of fundamental rights are part of domestic law, and I do not see any legal chaos in our courts, although I do see an awful lot of political chaos.

Investigatory Powers Bill

Debate between Joanna Cherry and Suella Braverman

Tuesday 1st November 2016 Commons Chamber

[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.

--- Later in debate ---

[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.

[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.

Investigatory Powers Bill

Debate between Joanna Cherry and Suella Braverman

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Suella Fernandes (Fareham) (Con)]

It is a privilege to speak in this debate, and indeed to have participated in the Committees that have considered the Bill: I was a member of the Joint Committee that scrutinised the draft Bill in February, and I was also a member of the Bill Committee earlier this year. I want to put on the record my appreciation of the Labour party’s constructive and fruitful contributions. This vital legislation has come far since its first iteration. It is an example of cross-party collaboration, so I am glad that party politics has been put aside in the name of national security. I urge all Members of the House to act in such a manner when we go through the Lobbies later today. However, judging by the words of the hon. Member for Glasgow North East (Anne McLaughlin), I do not think that will be the case.

I rise to speak against amendment 309 and the others relating to bulk powers. The Scottish National party Members says that those powers are disproportionate, that they have no utility and that they are therefore unlawful. The amendments propose removing most of parts 6 and 7, from clause 119 onwards, and with them the three types of bulk power afforded to our security and intelligence services—bulk interception, bulk acquisition of communications data and bulk equipment interference. Those powers allow for the collection of large volumes of data and are set out in clause 119 onwards. Further warrants are required before those data can be examined. The purposes of such examination, which are set out in the Bill, may be to pursue more information about known suspects and their associates or to look for patterns of activity that may identify new suspects. Crucially, those powers are not afforded to law enforcement services.

I have a few points to make. First, these powers are founded on a clear and robust legal basis. They are all available to the agencies in existing legislation. Bulk interception is covered in section 20 of the Regulation of Investigatory Powers Act 2000. Bulk communications data are covered in section 94 of the Telecommunications Act 1984. Bulk equipment interference is covered in sections 5 and 7 of the Intelligence Services Act 1994. If amendment 390 and the others were passed today, we would remove the vital powers on which our agencies rely to do their jobs and we would prevent them from acting on those powers.

Secondly, these powers are not novel or a quirk of the modern age; they have been around for decades. Back in world war one, our intelligence services tracked the worldwide network of German cables under the sea by using secret sensors. They were able to intercept telegraph messages on a bulk basis, looking for patterns in communications and signals from the enemy.

When cables ended, radio surveillance was necessary to break codes during world war two. That involved bulk interception of data by hand. That work was famously based at room 40 of the Admiralty. Alan Turing and his team at Bletchley Park would never have cracked Enigma were it not for the bulk interception of cyphers. That advanced cryptanalysis changed the course of history by enabling the allies to pre-empt enemy planning, saving countless lives and shortening the war.

[Joanna Cherry]

Does the hon. Lady agree that the difference is that, in the days of Bletchley Park, we were at war? We are not at war now. What we are concerned to do here is not to assist this country’s enemies, but to protect the privacy of the people who live here, who include her constituents.

[Suella Fernandes]

I am astonished by the hon. and learned Lady’s suggestion that we are not at war. Paris, Brussels, Jakarta—I do not need to go on. We are engaged in a worldwide conflict against Daesh, and it is a threat to our security every day and every night.

Investigatory Powers Bill (Eleventh sitting)

Debate between Joanna Cherry and Suella Braverman

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

[Suella Fernandes (Fareham) (Con)]

Does the hon. and learned Lady agree that all three independent assessments concluded that the mass surveillance she suggests is complete fantasy? In his evidence to the Joint Committee, Professor Clarke from the Royal United Services Institute endorsed the approach. The idea that the state somehow has a huge control centre where it is watching what we do is complete fantasy. Not only is there a limit to capacity but there is no interest in carrying out such activities.

[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.

Investigatory Powers Bill (Tenth sitting)

Debate between Joanna Cherry and Suella Braverman

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

[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.

[Suella Fernandes (Fareham) (Con)]

The hon. and learned Lady is asking the Committee to attach less weight to David Anderson’s review, as my hon. and learned Friend the Member for South East Cambridgeshire said, and inviting us to prefer the evidence of Mr Binney, a whistleblower whose evidence was clearly out of date, because the last time he was security cleared was 2001.

[Joanna Cherry]

Forgive me, but the hon. Lady was out of the room when I said that I am not asking the Committee to look at Mr Binney’s evidence. I am asking the Committee to look at the evidence of the US President’s Review Group on Intelligence and Communications Technologies and of the Privacy and Civil Liberties Oversight Board, which led to the repeal of section 215 and its replacement with the USA Freedom Act. I am not asking the Committee to look at Mr Binney’s evidence; I am asking the Committee to consider and take into account the background of two high-level independent US reports—the USA is our closest ally—that found that similar bulk powers are not necessary or proportionate.

I will not be side tracked by a suggestion that I am criticising David Anderson, because I am not—I make that absolutely clear. His review, “A Question of Trust”, was published prior to the Joint Committee of these Houses saying that a sufficient case has not been produced for bulk powers. David Anderson’s report was taken into account by the Joint Committee. I know that some members of this Committee, including the hon. Member for Fareham, sat on the Joint Committee, and one of its conclusions, recommendation 23, was:

“We recommend that the Government should publish a fuller justification for each of the bulk powers alongside the Bill. We further recommend that the examples of the value of the bulk powers provided should be assessed by an independent body, such as the Intelligence and Security Committee or the Interception of Communications Commissioner.”

The Joint Committee said that in the full knowledge of David Anderson’s report, having read and considered it. My point is that such operational case as has been produced by the Government does not live up to the Joint Committee’s recommendation 23, and does not adequately provide an operational case for the powers.

Investigatory Powers Bill (Second sitting)

Debate between Joanna Cherry and Suella Braverman

Thursday 24th March 2016 Public Bill Committees

[Joanna Cherry]

Q You will not get passwords from an ICR?

Alan Wardle: No.

[Suella Fernandes (Fareham) (Con)]

Q There has been a description of Tor as a facility that allows digital abuse of anonymous online activism. It is linked to encrypted information. I want you to say a bit about what effect encryption has on some of the work that you are involved with?

Alan Wardle: A lot of the activity that we take for granted online—shopping, banking and all the rest of it—could not be done without encryption, but of course, as with all these tools, encryption can be used for bad purposes by bad people. Similarly, with services like Tor and Freenet—the dark web—in the cases that we are concerned with, you get your most highly committed and dangerous offenders, quite often, particularly sharing very explicit images or videos of children being abused. Those services enable them to hide there. The police do the best they can, but, again, for a lot of that they will be dependent on traditional undercover techniques.

I think there is a question that is—I say this respectfully —beyond this Committee’s remit and beyond many of our remits. The direction of travel generally is that we are seeing greater moves to encrypt data as a matter of course, with things like Google Chrome browsers and so on. With browsers such as that, internet service providers cannot put in place the kind of protections they have, so they do not know what is going on there. That is a direction of travel and something that is worrying. It is clearly a global issue, but the police not being able to track what is going on due to increasing levels of encryption is a worry.

Investigatory Powers Bill

Debate between Joanna Cherry and Suella Braverman

Tuesday 15th March 2016 Commons Chamber

[Joanna Cherry]

I can only reiterate that I and many others, including more than 200 lawyers who signed this letter, disagree with the right hon. and learned Gentleman on this occasion and about this point. One thing that this issue illustrates is the importance of having very focused language in Bills dealing with such major matters of constitutional importance, rather than having vague language, which is not properly understood and which can on a later day be twisted by those it suits, to expand to cover powers that were not envisaged at the time. We are all well aware that that has happened in the past.

We should not dismiss too lightly the importance of the notion of the rule of law overarching this Bill. If the Government really want this legislation to be world-leading, they cannot have legislation that potentially violates international standards. As things stand, the UK is still bound by the jurisdiction of the European Court of Justice; there were no proposals to withdraw from the charter of fundamental rights in the agreement negotiated by the Prime Minister over Europe last month. We are still awaiting proposals for the repeal of the Human Rights Act, but the Government have recently been moving to reassure us that we will not be withdrawing as a signatory from the Council of Europe. We are therefore still going to be bound by the Court in Luxembourg and the Court in Strasbourg. Many distinguished lawyers believe that if this Bill is not significantly amended, the law of the UK will be on a collision course with those European Courts. I remind the Government that an unamended Bill could result in unnecessary and expensive litigation. It could require Parliament to revise the law all over again at some point in the future. That should not happen, provided that we ensure that the law meets international standards. [Interruption.] I hear Government Members shouting at me, “Which parts?” I will come to that when I get into the meat of my speech. [Interruption.] I suggest that they read the report that has come from the UN rapporteur on the right to privacy, and consider the law here. They may prefer to follow in the footsteps of Russia, which last December passed a law allowing its constitutional court to decide whether to comply with international human rights courts, but I would suggest that, on these matters at the very least, Russia is perhaps not the best role model for the United Kingdom.

I want to challenge the premise that the more privacy we sacrifice, the more security we gain, because that is not backed up by the evidence. Indeed, some of this House’s Committees have heard evidence that swamping analysts with data can impede investigation, because they are unable to find the crucial needles in the haystack of information before them. We should be looking at how to achieve security in a really intelligent way, not blanket data retention and suspicionless surveillance.

The Home Office responded to the Intelligence and Security Committee’s recommendations by simply adding one word to the start of the Bill so that the first part now refers to “privacy”. It has not, however, added any detail relating to any overarching principles of privacy. Its response to the ISC seems somewhat cynical.

I have indicated that the SNP is concerned about a number of aspects of the Bill. Time does not permit me to tackle all of them, but I am concerned about four in particular. I will endeavour to keep my comments to a minimum, bearing in mind that I speak on behalf of the third party in the House.

Our first issue with the Bill is the legal thresholds for surveillance; the second is the authorisation process, which the shadow Home Secretary has already talked about; the third is the provision for the collection of internet connection records; and the fourth is bulk powers, which I have already mentioned.

On the legal thresholds for surveillance, the Government essentially want to re-legislate on RIPA’s three broad statutory grounds. The SNP is not alone in its concern that those grounds are unnecessarily broad and vague and dangerously undefined. The Joint Committee on the draft Bill recommended that it should include definitions of national security and economic wellbeing, but that has not been done. The ISC recommended that economic wellbeing should be subsumed within a national security definition, finding it “unnecessarily confusing and complicated”. Those recommendations have been dismissed and the core purposes for which extraordinary powers can be used remain undefined and dangerously flexible.

On the authorisation of warrants, we welcome the move towards greater judicial involvement, and we acknowledge the fact that the Government have moved considerably towards the double lock. However, I agree with the shadow Home Secretary, because we also want an equal lock. Judicial review is not the same as judicial authorisation. Judicial review creates the illusion of judicial control over surveillance, and it does not achieve enough movement away from the status quo.

I want to give some concrete examples of that. The case law of the United Kingdom Supreme Court shows that, in civil proceedings that do not relate to deprivation of liberty, a less intensive standard of judicial review is applied—more Wednesbury reasonableness than strict necessity and proportionality—and that is why many fear that that is what will happen if the Bill is passed unamended. There will be little or no scope for review on the merits.

[Suella Fernandes]

Will the hon. and learned Lady accept that she is simply wrong? In their evidence to the Joint Committee, of which I was a member, Sir Stanley Burnton, senior judicial commissioner, and Lord Judge, senior surveillance commissioner, were clear that the Wednesbury unreasonableness standards had no place in this context. The wording of the Bill is clear, importing a clear judicial review standard involving necessity and proportionality.

[Joanna Cherry]

The hon. Lady will no doubt be unsurprised to hear that I do not accept that I am wrong. She is cherry-picking her way through the evidence that was heard. There was evidence contrary to the position that she has stated. I accept that there is a debate about this point, but I take the side that the review of judicial review principles does not go far enough. Why not go as far as other countries? Why not have one stage of judicial authorisation? That is the norm in comparable jurisdictions, by which I mean the United States, Australia and Canada. Judicial authorisation would help us, because it would encourage co-operation from US technology firms.

On a practical note, a two-stage process—whereby the issue goes to a Minister first and then to a judicial commissioner—risks delay. There is a huge volume of surveillance warrants, and it looks like there will be an awful lot more as a result of this Bill. It is unsuitable for a small number of Cabinet Ministers to deal with them.

I want to deal with another false premise that is often used to justify ministerial involvement in the issuance of warrants. Some people seek to argue that Ministers are democratically or politically accountable to this House on the issue of surveillance warrants, but that is a misconceived argument. Ministers are not really democratically accountable for their role in issuing warrants, because, first, the disclosure of the existence of a warrant has been criminalised and it will remain as such under the Bill. Secondly, all of us know—even those such as me who have been in this House for only nine months—that requests for information concerning such matters in this House are routinely parried with claims about national security. I do not accept that Ministers are practically, politically or democratically accountable to this House on the issuance of warrants. To return to the jurisprudence of the Strasbourg Courts, they have made it very clear that it is important to have effective supervision by an independent judiciary. We query whether the double lock mechanism meets that test.

We agree with many others that the case for collecting internet connection records, including the claimed benefit for law enforcement, is flawed. That is not just my say-so: there are many concerns across the industry. People who understand the technicalities far better than I do have explained the problem to me. I again associate myself with what the shadow Home Secretary said: the internet is not like the telephone system. An internet connection record cannot be compared to a telephone bill. The phone system consists of a set of records relating to when A calls B. If we collect phone system records, we will see at what time A called B and the duration of the call. As I understand it, the internet is more like a mailbox that collects packets of information and then takes them from A to B.

To take a rather middle-aged example, if somebody uses the Facebook messenger service, all the internet connection record will show is that he or she has connected to Facebook messenger. It will not show with whom he or she then communicated, because that occurs at a higher or lower level or in another unreachable packet. The internet connection record will not show the when, where and who that the Government say they want, and which they already get from phone records.

What the internet connection records will show is a detailed record of all of the internet connections of every person in the United Kingdom. There would be a 12-month log of websites visited, communication software used, system updates downloaded, desktop widgets, every mobile app used and logs of any other devices connected to the internet. I am advised that that includes baby monitors, games consoles, digital cameras and e-book readers. That is fantastically intrusive. As has been said, many public authorities will have access to these internet connection records, including Her Majesty’s Revenue and Customs, and the Department for Work and Pensions, and it will be access without a warrant. Do we really want to go that far? There is no other “Five Eyes” country that has gone as far. David Anderson QC said:

“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US”

and therefore, he said, “a high degree of caution” should be in order.

Finally, let me turn to bulk powers. I have already made the point that even the Interception of Communications Commissioner’s Office says that bulk provides at the outset generalised initial intercept. We became aware of these bulk interception programmes only when they were disclosed by Edward Snowden in June 2013—whatever Members think about those disclosures and whether they were appropriate, that is how we became aware of the matter. This House has never before debated or voted on bulk powers, so we are being asked to do something very novel and very challenging, and we must do it properly.

The power to conduct mass interception has been inferred from the vaguely worded power in section 8(4) of RIPA, which illustrates the danger of vaguely worded legislation. Targeting bulk warrants at a telecommunications system or at entire populations rather than at specific individuals is a radical departure from both the common law and human rights law, yet that is the approach that will be maintained in this Bill. In many respects, that is the most worrying part of the Bill. Indeed, it is the part of the Bill about which the UN special rapporteur on privacy is most concerned. Let me read what he said, because it is very respectful of the tradition of the United Kingdom and it makes some very good points. He said:

“It would appear that the serious and possibly unintended consequences of legitimising bulk interception and bulk hacking are not being fully appreciated by the UK Government. Bearing in mind the huge influence that UK legislation still has in over 25% of the UN’s member states that still form part of the Commonwealth, as well as its proud tradition as a democracy which was one of the founders of leading regional human rights bodies such as the Council of Europe, the SRP encourages the UK Government to take this golden opportunity to set a good example and step back from taking disproportionate measures which may have negative ramifications far beyond the shores of the UK. More specifically, the SRP invites the UK Government to show greater commitment to protecting the fundamental right to privacy of its own citizens and those of others and also to desist from setting a bad example to other states by continuing to propose measures, especially bulk interception and bulk hacking, which prima facie fail the standards of several UK parliamentary Committees, run counter to the most recent judgements of the European Court of Justice and the European Court of Human Rights, and undermine the spirit of the very right to privacy.”

The rapporteur is appealing to the better tradition in this country, and saying that we should look at this Bill very carefully. He is suggesting not that we should throw it out, but that we scrutinise it very carefully, bearing in mind how far it intends to go in comparison with other countries and with existing international case law.