National Security Bill

Debate between Joanna Cherry and Tom Tugendhat

Report stage
Wednesday 16th November 2022 Commons Chamber

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

I was here to speak to new clause 7 and amendments 17 to 28 and 30 to 39, but there is not enough time for me to do so. That is most regrettable, given the importance of the Bill.

I am here not in my personal capacity but as Chair of the Joint Committee on Human Rights. Our duty is to scrutinise legislation to check its human rights compliance, and we have done that. I remind Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords. That is just as well, because it will be in the House of Lords that our amendments get the attention that I believe they deserve. Although I am not really a fan of the House of Lords as an unelected Chamber, I am very much a fan of second Chambers. Nevertheless, it is regrettable that such a small amount of time has been afforded to us today to debate this important Bill, which we believe has significant human rights implications. Given the short time available to me, I shall make some general comments; as I say, I hope that our detailed amendments will get the attention they deserve in the House of Lords.

We broadly welcome the attempt to modernise espionage offences, but we have some concerns about the Bill’s provisions. The Bill is a step forward and many of its provisions are broadly in line with the recommendations of the Law Commission’s recent review, but there are risks that some of the provisions are drawn far too widely and could criminalise behaviour that does not constitute a threat to national security. We think that other provisions would interfere unnecessarily and disproportionately with rights to freedom of expression and association and the right to protest, and that they may regrettably have a disproportionate impact on certain communities in the United Kingdom, particularly if new police powers are not exercised with restraint.

The provisions on prevention and investigation measures, which were not included in the Law Commission’s review, also engage the right to a fair trial, the right to liberty and security and the right to a private and family life in a way that gives the Joint Committee cause for concern. We are also very concerned about the restrictions on the grant of legal aid and on the awarding of damages to those who have been involved in terrorism. They risk impeding access to basic rights and legal protections, as other Members have elaborated on. We have therefore suggested that the Bill be amended in a number of ways but, as I say, there is not sufficient time for me to address any of the amendments in any meaningful way.

Let me say one other thing before I sit down. The Bill does not address issues relating to the unauthorised disclosure of information—sometimes known as leaks—despite it being a significant part of the Law Commission’s review. The commission set out clearly the ways in which the existing law engages and potentially breaches the UK’s human rights commitments under the European convention on human rights, and suggested ways in which law might be changed to overcome such issues. Although the Joint Committee appreciates that this is in many ways a complex and controversial area of law, we hope that that is not going to result in inaction, and encourage the Government to consult on legislative provisions as soon as possible.

We believe that reform of the Official Secrets Act 1989 is needed to ensure adequate respect for free speech. That is why I added my name to new clause 8, tabled by the right hon. Member for North Durham (Mr Jones), which I very much regret we are not able to debate today. Put shortly, we need a public interest defence in this country.

[Tom Tugendhat]

This has been a very full discussion involving many people. Although I sympathise with those who have quite rightly made the point that we could always have more time for these debates, the truth is that we had a lot of time in the Bill Committee and we are going to have to do much more work on this subject as its various elements evolve with the technology and the challenge. The truth is that if we had had this debate five, 10 or 15 years ago, we would have been debating different subjects, different nations and different elements of technology that have evolved into the threat that we sadly face today. Although I recognise that many hon. Members have understandably raised the number of hours and days that we have had today and in the past few weeks, the Government have listened and adapted the Bill to many aspects that have been raised in different ways.

Overseas Operations (Service Personnel And Veterans) Bill

Debate between Joanna Cherry and Tom Tugendhat

2nd reading & 2nd reading: House of Commons
Wednesday 23rd September 2020 Commons Chamber

[Joanna Cherry]

I am failing to follow this argument. Is the hon. and gallant Gentleman suggesting that torture is a crime that can be committed by error?

[Tom Tugendhat]

No.

[Joanna Cherry]

That seems to be what he is suggesting. But let us focus on what we are talking about here. We are talking about torture—[Interruption.]

--- Later in debate ---

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

I will confine my comments to the presumption against prosecution for serious criminal offences contained in part 1 of the Bill. I believe that the way in which this is framed will make prosecutions close to impossible for some of the most serious crimes under international law. I am also concerned, as are many lawyers, that it will create a presumption against prosecution for a class of defendants, which is unprecedented in our domestic legal systems.

In cases where UK personnel have committed crimes such as torture, the triple lock will apply no matter how grave the conduct involved is or how detailed the evidence is. The Government claim that this measure is designed to protect soldiers, but in fact, it runs counter to everything that our military personnel stand for. I respectfully remind Government Members that many Opposition Members have family members who have served in the armed forces as well. My paternal grandfather served in the Royal Air Force.

After the second world war, our armed forces helped to update and expand the Geneva conventions, which protect captured personnel. Both the Army field manual and the Ministry of Defence doctrine explicitly forbid torture or cruel treatment. Torture has been prohibited in Scotland since the Treason Act 1708 and in England for more than 300 years, since the Long Parliament’s abolition of the Star Chamber. Even Margaret Thatcher—not somebody I am normally given to praising—fought to preserve the ban on torture, and in 1988 she made it a criminal offence, no matter who committed it or where it was committed. Right-thinking Conservative Members might wish to bear that in mind when considering the part of the Bill to do with the triple lock.

[Tom Tugendhat]

I know that the hon. and learned Lady has a much finer legal mind than mine, but I merely draw her attention to clause 3(2)(b), which refers to “no compelling new evidence”. Surely the Bill does envision the possibility that there could be compelling new evidence, and therefore this is not the absolute lock of which she speaks.

[Joanna Cherry]

I have not said that it is an absolute lock. It does envisage some possibilities. But the bottom line is that you do not create a triple lock against something if you are expecting to encourage it or to allow it in. It simply cannot be right not to prosecute criminal acts of a crime as serious as that of torture if there is strong evidence that it took place. Torture victims have a right to see their tormentors brought to account, and there should be no time limit on justice.

This is not just a matter of domestic law. As we have heard from other hon. Members, our international legal obligations under the UN convention against torture and the Rome statute consist of recognising prohibitions against torture, which are absolute. That was the point of my intervention on the hon. Member for Tonbridge and Malling (Tom Tugendhat). The prohibition against torture in international law is absolute, and it ill behoves us to pass a statute creating one class of defendants in the United Kingdom wherein there is a presumption against them being prosecuted for that crime.

I have no time for vexatious litigation. I can say, as somebody who practised at the Bar for many years, and also someone who prosecuted, that vexatious litigation is a pain in the neck. What I am concerned about is the international reputation of the United Kingdom, for so long as Scotland remains part of it. Indeed, I will be concerned about the international reputation of England even when Scotland is no longer in a union with it. International law may not mean much to this Government, but they forget at their peril that it keeps all of us safe. If this is what the Government meant by their manifesto promise to update human rights laws, then we should all be very concerned.

Leaving the EU: Financial Services

Debate between Joanna Cherry and Tom Tugendhat

Thursday 3rd November 2016 Commons Chamber

[Joanna Cherry]

That is not what I am actually talking about. I am talking about the way in which European Union law has enabled Scots lawyers, English lawyers and lawyers across these islands to practise across Europe not for their benefit but for the benefit of their clients. That is the point. It is also to the benefit, as earlier speakers pointed out, of the financial services sector and to the British economy in general. This is not naked self-interest on the part of the lawyers. Lawyers depend on their clients to make a living. If lawyers are not able to practise across Europe easily, they will not be able to provide such a good service to their clients. That does not just apply in the financial sector. It covers all sorts of areas, including, very importantly, child and family law.

In Scotland, the Law Society of Scotland will be urging the UK Government and the Scottish Government to argue in negotiations that the current arrangements for lawyers to be able to practise in the European Union should be retained. It would be very disappointing if the only route for lawyers to be able to practise in Europe in future would be to requalify in other EU jurisdictions and go through the cumbersome processes that we have done away with as one of the many benefits of being in the EU.

Clearly, the best way to protect the legal and financial services in my constituency and in the city of Edinburgh is to remain part of the single market. That would be the easiest way to give comfort to those sectors. Of course, we are not able to give any comfort to those sectors, because the Government “do not want to give a running commentary”. However, it appears, as the result of a legal decision today, that the Government may in due course be forced to come to this democratically elected Chamber and tell us a little bit more about what their plans are. It is worthy of comment that that is not as a result of European judges sitting in Brussels, Luxembourg or Strasbourg. It is the result of English judges sitting in London. As a Scots lawyer, I wish to pay tribute to those English judges for the decision they have reached.

[Tom Tugendhat]

Of course, a few judges sitting in Belfast came out with a slightly different decision, as the hon. and learned Lady may be aware.

[Joanna Cherry]

Ultimately, it will be for the Supreme Court of the United Kingdom to decide, and it includes, of course, two very senior Scottish judges. I believe that the Supreme Court has already allocated a few days in December. I read that the full Bench will sit, so the Scottish judges will be there as well. The Scottish Government have said that it is very likely that Scotland will intervene in that case, and I have every confidence that the Supreme Court will reach the right decision.

Investigatory Powers Bill

Debate between Joanna Cherry and Tom Tugendhat

Tuesday 1st November 2016 Commons Chamber

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

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

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

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

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

[Joanna Cherry]

Will the hon. Gentleman give way?

[Tom Tugendhat]

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

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

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

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

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

Investigatory Powers Bill

Debate between Joanna Cherry and Tom Tugendhat

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

[Tom Tugendhat]

It is a pleasure to serve under your chairmanship, Madam Deputy Speaker, particularly as you are appropriately attired in something that may indeed be collecting bulk data.

We are talking about amendments that would fundamentally undermine the very Bill that we have come to support, and would change the very tone of the debate. I speak very much in support of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who has gone through various aspects in quite significant detail, explaining to us time and again why the controls over the collection of bulk data are entirely appropriate. I also speak in support of the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who has been through the Bill with the eye he has as a former Director of Public Prosecutions, seeing both the loopholes and the potential abuses, and covering them off.

I also speak in support of the Solicitor General, who has done exactly the same for us, and the Minister for Security, who has brought forward a Bill that answers the very questions that this state must always ask itself: how we guard our citizens and keep them safe while also keeping them free. This Bill does exactly that.

My first encounter with bulk data collection came in the constituency of my right hon. and learned Friend the Member for Beaconsfield, where the Defence School of Languages was sited. I was going through vast amounts of Arabic text. Although I was doing so in a most junior and rather ineffective manner, I learned how it was done properly. I was only a student; the masters have learned from that great Scots mathematician John Napier, who in the 17th century developed the logarithm, and whose lesson to us all, through mathematics, is how to build the pattern, understand the shape and break the code. That is why bulk data matter. We cannot build patterns without data and without volume, and we cannot make shapes without substance.

The bulk data are not themselves intelligence. As an intelligence officer in Her Majesty’s armed forces I was very proud to work on intelligence. It is not the raw product. It is what is analysed, what is useful and what decisions can be made from. That is not the bulk or the mass—the intelligence is the product. I am sorry to say that there appears to be a slight misunderstanding as to what is the intrusion. The intrusion is surely not the clay from which the form is made, but only the detail on the individual that could be used against them. The Bill does not allow that without the tightest of safeguards, both from former judges and from serving Ministers.

[Joanna Cherry]

Is the hon. Gentleman aware that once the bulk data are collected by warrant there is an intermediate stage in which they are analysed in the way that he describes, but there is absolutely no legal regulation of how that analysis is carried out? That is our objection. How can I make it any clearer?

[Tom Tugendhat]

The hon. and learned Lady speaks with her usual eloquence, but I am afraid I am going to refer her to schedule 4, part 1, which is a table containing a list of authorities and officers. The people who analyse are listed there. They are inspectors and superintendents of the Prison Service; lieutenant commanders and commanders of the Royal Navy; majors and, as in my case, very junior lieutenant colonels of the Army; squadron leaders and wing commanders; general duties officers of grade 4 and above; and Secret Intelligence Service officers.

There is a list—a catalogue—in schedule 4 of people in our country, men and women across these islands, whom we have trusted with the intelligence procurement for our nation to keep us safe. It is they who will be doing the analysis, under supervision. It is only when they have got something that is worth taking that they will be allowed to use it. That is the provision we are talking about and the type of supervision. People will not be allowed simply to collect and analyse. They will be allowed to collect and analyse only under warrant. That is absolutely essential.

[Joanna Cherry]

I repeat again: does the hon. Gentleman accept that no warrant is required to carry out the initial computer analysis? Does he understand that that is what those of us who were on the Bill Committee and who have worked on the Bill for months uncovered? Unlike some of his colleagues, who shout from a sedentary position that we do not understand this, we do understand it—we have been analysing it for months. Does he understand that there is no regulation by warrant of the analysis carried out by the individuals that he describes? That is the nub of the matter.

[Tom Tugendhat]

The hon. and learned Lady is, I am afraid, picking on a hole in the Bill that is simply not there. [Interruption.] It is not there because the collection of bulk data is entirely categorised by the Bill. The Bill supervises entirely the ability to collect bulk data. The analysis is then done by trusted officers of the state. To accuse them of anything other than the highest forms of integrity would be an extraordinary statement to make in the House.

European Union Referendum Bill

Debate between Joanna Cherry and Tom Tugendhat

Thursday 18th June 2015 Commons Chamber

[Tom Tugendhat]

I bow to my hon. Friend’s superior knowledge of Scottish law.

My point is not about 16 and 17-year-olds because my hon. Friend the Member for Norwich North (Chloe Smith) covered that so completely and so ably.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Tom Tugendhat]

May I make a little progress, please?

I will instead make a few comments about citizenship, because that is what we are really talking about. This is a constitutional vote. It is not a tactical vote or a minor amendment; it is about the constitution and governance of our country. When someone chooses to be a member of our society and a participant in it, there are various things they can choose to do. They can choose to reside here for educational purposes and stay for year or two, or perhaps do a PhD and stay for longer. They can also choose to reside here for an occupation and stay for a few months or a few years; or they can choose—as I am extremely glad my wife has done—to reside here for significantly longer to raise a family, marry and settle. If they do so, they are choosing a specific state of existence in our nation. What they are not choosing is full citizenship, because that is governed by other laws.

[Joanna Cherry]

Following on from what the hon. Member for South Leicestershire (Alberto Costa) said in his intervention, the age of legal capacity in Scotland is 16.

[Tom Tugendhat]

The hon. and learned Lady has greater knowledge of that subject than I do, but I do not know whether her knowledge is greater or less than that of my hon. Friend the Member for South Leicestershire. I will leave it to them to debate that.