Oral Answers to Questions

Keir Starmer Excerpts

Monday 5th September 2016 Commons Chamber

[The Minister for Policing and the Fire Service (Brandon Lewis)]

Obviously, decisions on whether to recruit individuals are for the chief officer of the police force concerned and each case should be treated on its merits, but I can say that we have no plans to change guidance, and the college guidance is very clear: the candidates

“should not have tattoos which could cause offence…or undermine the dignity and authority”

of the role of the police constable.

[Keir Starmer (Holborn and St Pancras) (Lab)]

T8. As the Home Secretary knows, leading organisations such as Freedom from Torture are very concerned that the definition of torture used in imminent statutory guidance of adults at risk in immigration detention should be wide enough to cover torture by non-state actors such as Daesh, the Taliban and Boko Haram. Will she agree to meet me to discuss these concerns urgently?

[The Minister for Immigration (Mr Robert Goodwill)]

I am more than happy to meet the hon. and learned Gentleman. I understand exactly the point he makes that Daesh, the Taliban and Boko Haram in Nigeria, where I was last week, can indulge in some of these terrible acts, and we need to make sure we address that particular situation.

Oral Answers to Questions

Keir Starmer Excerpts

Monday 13th June 2016 Commons Chamber

[James Brokenshire]

As I have said, France terre d’asile, to which the United Kingdom Government is giving financial support, is doing precisely that. It is going into the camps to identify young people and to ensure that we have a good understanding of the work that is being done there. Separately, our own advisers are going into the camps to provide appropriate advice. What is of key importance, however, is getting those young people into the French asylum system.

[Keir Starmer (Holborn and St Pancras) (Lab)]

On behalf of Labour Members, may I echo the Home Secretary’s comments about Orlando?

Research published this week by UNICEF shows that children in refugee camps in Calais and Dunkirk are experiencing violence, sexual exploitation and abuse on a daily basis. Clearly, for those who are entitled to be reunified with their families, speed is of the essence, but UNICEF estimates that, at the current rate, it could take up to a year to process the children who are already in Calais and Dunkirk and who have a legal right to be reunited with their relations in the United Kingdom. What steps are the Government taking to address that, and can the Minister tell me how many Home Office staff are currently based in France and working to speed up the process?

[James Brokenshire]

I entirely agree with the hon. and learned Gentleman about the need to ensure that those cases are processed as quickly as possible. The most effective way to do that is to provide teams that link up with the best expertise on both sides of the channel, and that is exactly what we have done with the French authorities. The process will not take as long as he suggested. We are seeing cases being processed in a matter of weeks, which is precisely what we want.

Investigatory Powers Bill

Keir Starmer Excerpts

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

[Mr Grieve]

Like everything else, I tend usually to say that we give the word its ordinary English meaning. I can accept that one may collect a dataset whose content is entirely innocuous and not really sensitive personal data at all, but which for some reason might contain a nugget of sensitive personal data that has crept in in some strange and perhaps unintended way. I accept that in those circumstances the protections we introduce are unnecessary; indeed, the truth is that the agencies would not even know that that information was there at the time they were acquiring it.

However, if we focus on the points I raised earlier—the Data Protection Act describes sensitive personal data as relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life—we are probably in quite a good place. I do not think a court would have too much difficulty being able to tell what falls one side of the line and what falls the other. However, like everything else, it is all open to a degree of interpretation, so I do not offer that to the hon. Gentleman as 100% perfection, although it is a good way forward and I think most of us would understand what sort of collected bulk data are likely to contain that sort of material.

Amendment 24 concerns specific warrants for bulk personal datasets. We are far less concerned about these, but again this provision would cover data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life, and would ensure that the Secretary of State authorising the warrant would have the sensitivity of the data highlighted for them as part of their overall consideration of the necessity and proportionality of retaining and examining the dataset. I believe this may well be completely acceptable to the Government. Amendment 24 would mean that if there was an intention, for example, to acquire a dataset that clearly contained a great deal of information about people’s religious or political opinions, that would be specifically drawn to the Secretary of State’s attention in asking her or him to sign off the warrant, so that they were aware that that was being sought.

Finally in this list, I want to mention amendments 22 and 23, which are really carryovers from yesterday and concern the renewal of warrants to prevent two warrants from extending over a 12-month period, which I believe the Government have accepted, although that could not be considered yesterday.

I apologise for taking up so much of the House’s time, but I hope these amendments may help to clarify some of these areas of the Bill.

[Keir Starmer (Holborn and St Pancras) (Lab)]

We made good progress in the House yesterday. We now have clarity about the terms of the independent review of bulk powers, which we are looking at today; and we have an overarching privacy clause, a stricter test for the judicial commissioners, protection for trade union activities, and an undertaking from the Solicitor General to consider how to amend the Bill to make it absolutely clear that whistleblowers can make disclosures to the Investigatory Powers Commissioner without fear of prosecution. I hope we can make as good progress today.

One of the amendments made to the Bill yesterday concerned the requirement for judicial commissioners to consider necessity and proportionality with a sufficient degree of care to ensure that they comply with the general duties in relation to privacy—this is the tighter judicial review test. That amendment was made to clause 21, which relates to intercept warrants. Today we are dealing with bulk powers. The judicial commissioners have an important role in relation to bulk powers and are an important safeguard in respect of warrants involving bulk powers. It is therefore important that we have clarity in the House today that the tighter scrutiny that is now in clause 21 applies equally to all other exercises of authorisation or approval carried out by judicial commissioners, including where they are exercising their powers in relation to bulk warrants. I think that otherwise there will be a risk of two tests, one under clause 21 and one under the other clauses applying to bulk powers. There is a real danger relating to combined warrants, in respect of which judicial commissioners would be asked to carry out different tests. It is important for the bulk powers to be scrutinised every bit as closely as the intercept warrants. Perhaps, in his response, the Minister will make it clear that the test applies generally across all the functions of the judicial commissioners, whether in respect of the specific warrants referred to clause 21 or in respect of the warrants relating to bulk powers and other provisions in the Bill. That, I think, would be a helpful extension of the safeguards relating to bulk powers.

--- Later in debate ---

[Mr John Hayes]

I sense that the hon. and learned Gentleman is about to move on to wider issues. Before he does so, let me deal with the issue of the application of the content of the manuscript amendment, which, as he said, specified a part of the Bill. He is right to say that the principles that underpin the amendment should apply to the whole Bill, and I will ensure, as the Bill proceeds, that that is the case legislatively. If we need to table further amendments to make the position categorically clear, we will do so.

[Keir Starmer]

I am grateful to the Minister for clarifying the position, because that is an important additional measure in relation to bulk powers. We will, of course, support whatever amendments are necessary to achieve that end.

As I have said, the bulk powers are very wide. They will inevitably have an impact on people who are not suspected of doing anything wrong, and they will inevitably have an impact—or, at least, it is impossible to ensure that they will not—on legally privileged material, or material that involves journalistic material or journalistic sources, or, indeed, MPs’ correspondence. It would be good if a way could be found of excluding such material from the operation of bulk powers, but it is not possible to do so, and that is why there is concern about bulk powers. [Interruption.] I will give way to the right hon. Member for Haltemprice and Howden (Mr Davis) in a moment.

Bulk powers involve ordinary members of the public who have never done anything wrong, and they involve the potential to capture legally privileged material, journalistic material and MPs’ correspondence. I shall come on to the safeguards, but it is important to understand first why there is that concern about the bulk powers.

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

rose—

[Mr Davis]

I was not intending to be discourteous, Mr Deputy Speaker.

The hon. and learned Gentleman said that it was not possible to screen out the correspondence of the various privileged groups he described. The issue arose at the Investigatory Powers Tribunal in respect of one of the Wilson doctrine cases, and that was the assertion made by the Government barrister at the time. However, I consulted a number of experts, including Ross Anderson at Cambridge, and they said that it was perfectly possible. A great deal of screening is already done to take out dross—issues such as pornography—and it is perfectly possible to screen out targeted groups as well.

[Keir Starmer]

Obviously, I should be very interested to hear how that could be done at the outset, and I am sure that the Minister would as well.

Let me make two points to emphasise why there is such concern about bulk powers. It may well be possible, depending on the parameters that are set, to reduce the likelihood of obtaining through bulk powers material that is sensitive in one shape or form, but I do not think it is possible to eliminate it. It may well be that most of that is done at the filtering stage, rather than at the stage of the initial exercise of the bulk power. I am not seeking to explain why bulk powers inevitably capture such information, or to justify that; I am simply explaining why I think so many people are concerned about the bulk powers. That is why Labour has made it clear that, given the breadth of the powers, the operational case for them must be properly made and properly reviewed, and that is why the safeguards must be reviewed.

The issue of the safeguards may need to be revisited when the Bill is in the other place. As the right hon. Member for Haltemprice and Howden knows, the Tom Watson and David Davis case is currently midway between the Court of Justice of the European Union and the Court of Appeal. Although it touches on existing legislation and retention powers, it may have implications in relation to the Bill when it is given further consideration, and will certainly be important when it comes to consideration of safeguards. Let me also, in passing, echo the concern expressed by the right hon. and learned Member for Beaconsfield (Mr Grieve) in relation to operational purposes, an issue which also arose in Committee.

As for the review, the first stage is to ask whether the operational case has been made. I referred yesterday to an exchange of letters between the Minister and me. I hope that copies of the letters have been made available; I think that they have been made available to the House, and that every Member has them. However, I want to put on record what was being asked for, and what the response was. Let me say at the outset that this was a constructive exchange, which moved a significant issue significantly further forward.

I wrote to the Minister that the review to be carried out by David Anderson should be

“supported by a security cleared barrister, a technical expert and a person with experience of covert investigations”,

that it should

“Examine the operational case for the bulk powers in the Bill, not merely in respect of the utility of the powers, but also their necessity”,

that it should

“Have access to all necessary information as is needed to undertake the review effectively, including all information provided to the Intelligence and Security Committee”,

and that it should

“Take about three months to complete and…report to the Prime Minister in time for the findings to inform Lords Committee considerations of Parts 6 and 7 of the Bill.”

The Minister’s reply is important, as Members who have had an opportunity to read it will appreciate. He wrote:

“I can confirm that the basic framework for the review will be as set out in your letter…David Anderson has hand-picked this team and we are confident that together they have the range and depth of knowledge needed to undertake a comprehensive review.”

I was very anxious that David Anderson should pick as members of his team people whom he considered to have the necessary competences to help him with the review that he has been asked to carry out independently, and I am pleased that he has done so. I have been assured by him that he is very happy with his choices, and with the skills from which he will benefit as a result of that exercise.

The Minister’s letter continues:

“In relation to your second point”—

this is really important—

“it is absolutely the case that this review will be assessing the specific question of whether the bulk capabilities provided for in the Bill are necessary. The review team will critically appraise the need for bulk capabilities, which will include an assessment of whether the same result could have been achieved through alternative investigative methods.”

That goes to the heart of the issue. If that is the focus of the review, it will give comfort to the Labour team—and, no doubt, to members of the Scottish National party, notwithstanding their concerns—and to all our constituents as well.

[Joanna Cherry]

Does the hon. and learned Gentleman agree that the timetable for this independent review is such that, whereas the House of Lords will have time to scrutinise and debate it, the House of Commons will not? Does he agree that that is not acceptable in a democracy?

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. I have been asking for the review for some time and my preference was always that it should have been earlier and available to us now. In fairness, and in keeping with what I said yesterday about the exercise that we have been conducting, I recognise that it was a big ask of the Government at this stage, particularly in light of the pre-legislative scrutiny. I am always inclined to look on the positive side and the fact that there is a review, under the terms for which we asked, is important. Of course, when one looks back at anything, one can always make the argument that it should have been done earlier and, usually, differently. I accept that it would have been good if we had had the review by this stage, which is why I put forward my argument as I did before, but I emphasise just how significant this is and what a significant change of position it is for the Government. It is constructive and positive, for which we are grateful.

[Mr David Davis]

The powers mostly already exist and this is an avowal of existing powers, so in some sense the question of the hon. and learned Member for Edinburgh South West (Joanna Cherry) is different from what it would normally be. We have powers and may not change them as result of the delay, but there is an implication for how soon we review the whole package and how soon we come back and re-legislate. It has long seemed to me that this is a piece of legislation that lends itself to almost annual review, renewal and reform. The way to deal with the problem may be to ensure that we get a relatively rapid review and reform of the legislation in another part of this business.

[Keir Starmer]

There is a case for frequent review, but what form that would take is a matter for us to discuss during the debate on the next group of amendments. I take the point that, in many senses, most of the bulk powers are currently available and being used. As I said yesterday, however, that does not mean that we should not scrutinise them now through the passage of the Bill. This is the first time that Parliament has had the chance to examine and scrutinise the provisions, because they simply were not avowed. The change of position on the avowal of the powers over the past three or four years and the fact that they are in statute are quite extraordinary. It would be wrong to say that as they existed and were used under more general provisions in the past, we should not ask for the operational case to be made now and have that properly scrutinised. This is the right way of doing things, even though one might say that it should have been done five, 10 or 15 years ago when things were different.

[Mr John Hayes]

That is why the focus on necessity and not merely utility is so important. It would have been easy to have focused on utility. As the hon. and learned Gentleman emphasised earlier, this is about establishing to the satisfaction of independent people that the powers are necessary.

[Keir Starmer]

That word necessary is important in all of this. As I say, the review team’s ability to assess whether the same result could have been achieved through alternative investigative methods is important to that exercise and the confidence that we can have in the outcome.

Pressing on, the letter goes on to say that

“all necessary information, access and assistance as is needed for the review”

will be provided. It then states:

“We are absolutely clear that there is nothing to be gained, and much to be lost, by in any way restricting the review team’s access to sensitive and classified material where this is necessary to inform the review process.”

On timing, it states

“you are correct that the review will be concluded in time to inform Parliament’s consideration of Parts 6 and 7 of the Bill at the Lords Committee.”

There is a complete and instructive response to the request in my letter and that will help a great deal in how the review is received.

The review is important. It is not just an exercise for us in this House or those in the other place; it is for the public. As the right hon. and learned Member for Beaconsfield said, some Members of this House have had access to some of the powers and have seen them in operation either in previous roles or in briefings to the members of various Committees. However, it is no longer enough, nor should it be, for members of the public for politicians to stand up and say, “I have had it demonstrated to me that these powers are necessary or have been used in a particular way.” They have the right to as much information as possible to make decisions for themselves.

[Anne McLaughlin]

If the review comes back and says that the bulk powers are not necessary, what will the Labour party do then?

[Keir Starmer]

I will assess that at the time. It depends on what the report says, because if it calls any of the powers into question or makes any recommendations about their exercise, we would all want to consider that. It would be difficult for anybody in this House or the other place to make a case for a bulk power that an independent review has deemed unnecessary. Let us wait until we get to that stage and let us see what the review actually says.

As for confidence in the review, there is a question of publication. It is important that the review’s report is publicly available. I obviously understand that David Anderson and his team will see highly sensitive material, to which they will have unrestricted access, so the detail that can be put in any public report will inevitably be limited. I think everybody understands that. It is important that the report is published in some form, as most of David Anderson’s report have been, so that they can be read not only by Members of this House and of the other place, but by members of the public seeking assurances about and confidence in the review.

[Fiona Mactaggart (Slough) (Lab)]

This issue goes to the heart of one reason why the Bill is particularly difficult. This House depends on the members of the Intelligence and Security Committee, who find out in private sessions how the powers are being used, to report back to the House, in a way that ends up being redacted, about their confidence in the powers. We have a duty to ensure that the public are as well informed as possible, in concert with our need to protect national security, about how these things work. That is the challenge and is one reason why the House has found the Bill quite difficult to deal with.

[Keir Starmer]

I agree with those sentiments. Conventions and attitudes change. To take an example from my past, it was once a convention that a prosecuting authority would not give reasons for its decisions, but that has changed and for the better. The days of politicians with access to particular information assuring the public simply by saying that they have had access and that they are satisfied are well and truly over. That presents problems and difficulties in relation to what must be put in the public domain.

[Mr John Hayes]

The intervention of the right hon. Member for Slough (Fiona Mactaggart) has been helpful in aiding me to frame my own. She is right that operational concerns are sensitive, delicate and, of course, secret matters. The hon. and learned Member for Holborn and St Pancras (Keir Starmer) is absolutely right that we should put as much information as possible in the report. He is also right that there will be access to security-cleared information of a highly sensitive nature, but that should not prevent us from being as clear as we can to this House, and more widely, about why it has been decided whether certain powers are necessary.

[Keir Starmer]

I am grateful for that intervention, which I will take in the spirit with which it was put forward. We want maximum publicity within the constraints that apply when highly sensitive information is considered. The first point of the review is to inform their lordships so that they can perform their scrutiny function, but they will be unable to do that if the report is not available to assist them in their deliberations. The review and its terms are a material and important step forward, and I am grateful for the indication about its publication when it is complete.

That takes me to the subject of medical records, which I can deal with swiftly.

[Alex Chalk (Cheltenham) (Con)]

Does the hon. and learned Gentleman agree that this review on the necessity of bulk powers is welcome, not just to give the public confidence, but to give confidence to the intelligence agencies that must use them? In my experience, they are scrupulous about acting within the law, and we owe it to them to award powers that they can be satisfied are both necessary and enjoy public support.

[Keir Starmer]

I do agree with that, and I have emphasised to the security and intelligence services that there is value in this exercise from their perspective, in making the operational case for the powers that they exercise and wish to continue exercising. That is another good reason for the review.

There has been an ongoing concern, raised first by the Scottish National party and then by Labour in Committee, about access to medical records. The concern for Labour, which I am sure is the shared position, has been about “patient information”, as defined by section 251 of the National Health Service Act 2006. That means information relating to mental health, adult social care, child social care and health services. I do not need to spell out for the House why many members of the public—my constituents and, I am sure, those of many Members—are deeply concerned about the very notion of the security and intelligence services having bulk access to those sorts of sensitive records. We tabled an amendment in Committee proposing a high threshold for the exercise of powers in relation to those records, and this is reflected in amendments 303 to 305 before the House today.

The Government have tabled new clause 14 in response to our demands. Although it does not take the same form as amendments 303 to 305, on my analysis, because of the way subsection (6) is framed, it would cover mental health, adult social care, child social care and health service records. If, either now or at some convenient point, the Minister could indicate that his understanding is that it would cover those records, I will not press amendments 303 to 305 to a vote.

[Simon Hoare]

There is a golden rule in the Hoare household that when in doubt we turn to Kipling—not the exceedingly good baker, but our rather excellent writer. I pray in aid Kipling in order to summarise.

I was not intending to speak on this grouping until I heard the cases deployed by the SNP and by the hon. and learned Member for Holborn and St Pancras (Keir Starmer). On the latter point, I concur and support what he said entirely, but the approach of the SNP, which we have heard since Second Reading—it was certainly a golden thread running through Committee—is one of serious annoyance to me, as I am pretty certain it is to colleagues. I am absolutely certain it is of huge anxiety to our constituents. The hon. Member for Glasgow North East (Anne McLaughlin) obviously has constituents who are very different from mine. She and I served on the Immigration Bill Committee, as did the shadow Minister, some little while ago. According to her, no constituent of hers had ever raised the issue of immigration, yet all constituents have raised with her these huge Glasgow concerns about bulk powers.

--- Later in debate ---

[Keir Starmer]

Let me put it on the record that I and the Minister said at the end of the Bill Committee that the SNP had played a significant role in ensuring that this Bill reached this stage of its proceedings in much better shape than it was when it was in Committee. It was a very constructive exercise by the SNP. SNP Members took different approaches on issues to us, but to suggest that they have not played an important part in this is not to reflect the views at the end of the Committee stage.

[Simon Hoare]

I am inclined to agree with the latter point, but at every step and turn, every SNP amendment, on my reading and on my hearing and my understanding, has been designed to delay and frustrate. We have had the canard that has run through the debate that we have not had adequate time to debate and discuss these issues. I will not rehearse the times, Mr Deputy Speaker, because you know them. You know how many Committees of this House have looked at the matter. The Bill Committee stood for a long period of time. We had a long debate on Second Reading. The Government, and the Ministers in particular, have bent over backwards to ensure that they can land this Bill in a shape and form that is acceptable to the vast majority of Members of this House and, one would hope, of the other place.

--- Later in debate ---

[Gavin Robinson]

Indeed.

I commented in the Tea Room earlier that I probably would not get the opportunity to contribute on Third Reading because the debate yesterday and today has been dominated by heavyweights. When I said that to a Government Member, he looked oddly surprised that I would not satisfy that criterion. I am pleased to have the opportunity not only to speak at this point on consideration, but to make the point that it would have been wholly worthwhile to have had just one Northern Ireland voice on the Bill Committee.

Members will have recognised just how considered and detailed the process has been. On Second Reading I focused my remarks solely on the prison officer, Adrian Ismay, who had been murdered in my constituency and died that very day. I made the point that we cannot continue to have abstract conversations about the impact of terrorism or about the protection that we as a state need on national security grounds, because in the here and now it is a matter of protecting us today, tomorrow and for every day to come.

I pay tribute to the Security Minister, the Solicitor General and all those Members who have so collegiately engaged in making sure that what, in years gone by, was a difficult process with the Draft Communications Data Bill—the snoopers charter—has been set aside during what I believe has been a very encouraging debate and thoughtful consideration of the Bill. Credit is due to the Minister and his team.

A point was made by the shadow Home Affairs Minister in arguing for amendments 303 to 305, and I would be grateful if the hon. and learned Member for Holborn and St Pancras (Keir Starmer) considered this issue. We have had contributions from the right hon. and learned Member for Beaconsfield (Mr Grieve) on new clause 3 and he made the point that it would not be appropriate to retain the datasets—personal data—that engage mental or physical health issues. In the light of that, I would be keen to hear from the shadow Minister on how he believes that deals with amendments 303 to 305. If new clause 3 were passed, would those amendments be necessary?

I understand that it may not be possible for the shadow Minister to respond, although I am happy to give way. It would be useful to know whether those three amendments are likely to be pressed to a Division or whether he believes that new clause 3 deals adequately with the protections for personal health data.

[Keir Starmer]

I hope I made it clear that I will not press those amendments to a vote because of the new clause tabled by the Government in relation to health records, which covers the same categories of data. I am sure that that will be dealt with by the Minister when he responds.

[Gavin Robinson]

I am grateful to the shadow Minister for that clarification, which is very helpful.

On bulk data collection generally, the correspondence that was shared yesterday was incredibly useful. I do not recall getting correspondence between a shadow Minister and the Minister, which was shared with us all and made available in the Vote Office so quickly. It was useful and defused many of the fears and concerns that had been raised with Members of Parliament about the consequences of passing the Bill. It is important, as the right hon. Member for Orkney and Shetland (Mr Carmichael) said, that we let that process commence and that we engage in it thoughtfully.

Having made the point that there was no Northern Ireland representation during scrutiny of the Bill in Committee, I hope there is a mechanism whereby Members, be they Democratic Unionists, Ulster Unionists, Social Democratic and Labour party Members or others, get the opportunity to engage thoughtfully and purposefully in the conversation because, as we all know in the House, the history and legacy of Northern Ireland means that these are acutely live issues for us daily.

--- Later in debate ---

[Mr Hayes]

My hon. and learned Friend, with an assiduity that is matched by her intellect, has identified the fundamental flaw in the argument of our critics, which is that those who have looked at these matters most carefully have concluded both that these powers are necessary and that the safeguards we are introducing in this Bill—and by the way, these powers have existed for a long time; this is the first chance we have had to debate the legislative safeguards—are not only numerous but rigorous, in the way she has described. That was precisely the point that David Anderson made.

However, the hon. and learned Member for Holborn and St Pancras, in Committee and since, has said we need to do more. There are two ways for Governments to handle Oppositions, just as there are two ways for Oppositions to handle Governments: we can either do it antagonistically or we can do it co-operatively. The way I go about my work is inspired perhaps by Samuel Johnson—the great Dr Johnson, the man who said, by the way, that the devil was the first Whig, and I agree with him on that. Samuel Johnson said:

“Life cannot subsist in society but by reciprocal concessions.”

This Bill has been a model of that kind of reciprocal approach. And by the way, these concessions have not been climbdowns. They have not been given reluctantly, they have not been turnarounds and they have not been in any sense wrung out of the Government. Nevertheless, they have been given on the basis of the proper pressure exerted by the hon. and learned Member for Holborn and St Pancras and other hon. Members for the Government to do more. Good government is about listening and learning, as I said yesterday, and that is precisely what we have done in respect of this review. I look forward to it and I anticipate its outcome with the same kind of interest that I know the hon. and learned Gentleman and others share.

[Keir Starmer]

I am grateful to the Minister, and I feel that I should put on record my gratitude to him for the way in which he has dealt with the demands that I have made on behalf of the Labour party. They have been considerable demands.

[Mr Hayes]

I thank the hon. and learned Gentleman for his support. I know that the Government Whips will take careful note of it. [Laughter.]

We have listened to the call for independent validation. David Anderson QC will undertake the review, so I will say no more about that.

We have debated at some length, today and previously, the amendments tabled by the Chairman of the Intelligence and Security Committee, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), which contain a number of proposals. I am grateful for his contribution to the debate, generally and, more specifically, today. I am pleased that my right hon. and learned Friend has explained the purposes behind new clause 3 and amendment 24. The Government certainly accept in principle the argument that we should provide further restrictions on the use of class bulk personal dataset warrants. We also accept much of the detail contained in the ISC’s draft clause, including reference to the need for restrictions relating to sensitive personal data.

I have dealt with the issue about which—as my right hon. and learned Friend knows—we are least happy, namely the timescale within which these matters are reported to the ISC. I think that more could be done, and I think that a protocol of the kind that my right hon. and learned Friend described in his brief contribution might provide a way of doing it. We will take that suggestion away and do further work, in the spirit to which he referred.

My hon. Friend the Member for Stevenage (Stephen McPartland), who is no longer present but who is an old friend of mine, raised issues relating to modifications. I want to make it absolutely clear that in all modifications, a warrant will require the same double lock. Yesterday and in Committee, the hon. and learned Member for Holborn and St Pancras argued that a double lock that applies when a warrant is originally sought must apply to modifications. I entirely accept that point. My hon. Friend made it again today, and I can assure him that the double lock will apply to bulk powers as well.

The hon. and learned Member for Holborn and St Pancras raised the issue of medical records. It is right for particularly sensitive data to be handled in a particularly sensitive way, and I am pleased that he noted the Government amendment which, I think, deals with that. We will consider the technical points that he raised about social care and mental health, but I am confident that we can find a way forward.

I do not want to delay the House unduly—as you know, Madam Deputy Speaker, that is not my habit, and we have other important matters to consider—but I do want to say that one of my regrets is that we have not had more Proust today, or during our consideration of the Bill more generally. Marcel Proust said:

“The only real voyage of discovery consists not in seeking new landscapes, but in having new eyes”.

The consideration of this Bill has been extensive. Three reports before its publication in draft, three parliamentary Committees once the draft Bill was published, and a very thorough examination in Committee following Second Reading have allowed us to have “new eyes”, and to see more clearly both the need to secure our people and counter the very real threats that we face, and the need to deal with the checks and balances which ensure that the powers we give those who are missioned to keep us safe are used proportionately, and only where necessary. Achieving that balance—a balance that lies at the heart of the Bill—has required the House to take a balanced approach. As I said a few moments ago, Parliament is at its best when it puts national interest beyond party interest, and this is common ground for the common good.

Investigatory Powers Bill

Keir Starmer Excerpts

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

[Mr Hayes]

The hon. Member for Perth and North Perthshire (Pete Wishart) shakes his head, but given that the SNP had only two Members on the Committee, I cannot describe it as the major contributor. Before he started shaking his head, I was about to say that the SNP made an incredibly helpful contribution, because it tested the Government, held us to account and made a number of useful and thought-through proposals. The Opposition—by the way, I say to the hon. Gentleman that they are Her Majesty’s Opposition—equally added immense value to our consideration by making the proposal for this new clause, among others. In my judgment, it was absolutely clear that the Opposition were determined to improve the legislation, rather than to weaken or dilute it. In that spirit, I am happy to propose the Government new clauses and amendments in this group.

To allow as many colleagues as possible to contribute to this important debate, I will now finish, except to say this: when Bills come before the House and are considered on Second Reading and debated in Committee and on Report, different circumstances apply and different shadow Ministers and Ministers approach the matter in their own style, but I take the view that although circumstances are beyond human control, our conduct, to quote Benjamin Disraeli, “is in our power”, and our conduct in consideration of this Bill, which is in our power, should continue to be as measured, reasonable and moderate as it can be.

[Keir Starmer (Holborn and St Pancras) (Lab)]

I thank all Members who have so far been involved in the scrutiny of the Bill, both in its early stages and in the Public Bill Committee. I particularly pay tribute to all members of the Committee from both sides of the House. That of course includes the SNP Members, who worked hard and constructively with us on the Bill. I pay tribute to the hon. and learned Member for Edinburgh South West (Joanna Cherry), who leads for the SNP on this matter.

This group of amendments deals with the general provisions and the overarching privacy clause, so it is important for me to set out Labour’s position before I move on to new clause 5. Safety and security matter. The current threat level for terrorism is severe, which, as we all know, means that an attack is highly likely. We all remember and are deeply conscious of the attacks in Paris and Brussels in the not too distant past, as well as other attacks. However, the Bill deals with not just terrorism, but other serious crimes, such as the threats from people traffickers, including those who traffic children, as well as those who indulge in sexual abuse and those who commit stalking and harassment. The starting position must therefore be that the security and intelligence services, GCHQ, the National Crime Agency and the police should have the powers to deal with these threats.

However, human rights matter, too. That includes the right to privacy, the right to be left alone, the right to have private data protected with security and integrity, and the right to redress when things go wrong, which are important rights. In relation to the issues covered by the Bill, I have seen things from at least two important perspectives. I was a defence human rights advocate for 20 years, taking many cases against some of the law enforcement agencies, and I then had the privilege to be the Director of Public Prosecutions for five years, working with the security and intelligence services and the other law enforcement agencies, so I have seen the threats and how they are dealt with, but also the importance of human rights considerations.

Safety and security and human rights are not mutually exclusive: they are not either/ors and we can have both. That is why Labour has supported the principle of the Bill, but also why we are focused intensely on the necessity of the safeguards for the powers in the Bill. We have supported the principle of the new legislation not only because investigatory powers need updating in a fast-changing world, but, equally importantly, because, after Snowden, it is important that the powers exercised are avowed, that they are placed in statute and that everybody understands the safeguards around them.

In that respect there are two very important reasons why we need new legislation. But some of the proposed powers are very wide—the bulk powers are very wide indeed. That is why Labour’s first and consistent demand of the Government has been for an independent review of the operational case for the bulk powers. The Government published a short operational case alongside the Bill, but we judged that inadequate and have been pressing for a full independent review since.

I am pleased to say that in a letter of 23 May the Home Secretary accepted the case for an independent review of the operational case for the powers. That is a significant and welcome step, and is the right step. I want to strike the right tone here. Labour made very significant demands when the Bill was in Committee. We sought to do so constructively, and there have been significant movement and concessions from the Government; again, that has been constructive. Important moves in the right direction, which will improve the Bill, have been achieved through that dialogue.

Having gone that far it is important now to focus on the task and terms of the review—having the review of bulk powers is one thing, but having the right terms is equally important.

[Mr David Winnick (Walsall North) (Lab)]

I appreciate all that my Front-Bench team has done and is trying to do to minimise the harm, as I see it, to privacy and civil liberties. But my hon. and learned Friend said that Labour accepts the principle, so may I say that some of us—myself, certainly, as I stated on Second Reading—do not accept the principle of the measures, consider the bulk powers unnecessary and will vote against them at every opportunity?

[Keir Starmer]

That intervention gives me the chance to say that by and large—there are some exceptions—the bulk powers are available and being exercised at the moment, under the existing arrangements. The Bill puts them on a statutory footing with proper safeguards. Not to do so would leave the situation as it is now; that is unsatisfactory because the powers are not clear and safeguards are not in place. That is an important reason why, in principle, we support the legislation. From my own perspective, having worked with the security and intelligence services on real cases, in real time, I also appreciate why some of the powers are needed and how they are used. We must never forget that important consideration.

We know that David Anderson QC will conduct the review. We have great faith in him, as I think do most Members of this House. It is important that the task he is performing is clear. We have argued that he should look not at the utility of the bulk powers but at their necessity, that he should be able to choose a suitably qualified security cleared panel himself to help him, that he must have access to all the material necessary to carry out the review effectively, including, of course, the material made available to the Intelligence and Security Committee, and that he must have time to carry out his review; we envisage that he will report in time for the consideration in Committee in the House of Lords of parts 6 and 7 of the Bill, which should be in about three months.

I am pleased to say that as those terms of reference are of considerable importance to Labour I have had the opportunity to discuss them with the Minister, and can tell the House that today we exchanged letters setting out that important framework for the review, namely that it should be a review of the necessity of the powers, that there should be properly cleared panel members chosen by David Anderson, that he should have access to all material and that there should be a report within three months. All those are very important for the conduct of the review.

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

The whole House is glad to hear that there has been constructive engagement on this matter, as it is incredibly important to get it right. Will the hon. and learned Gentleman ensure that those letters are put in the Library today so that the rest of the House is aware of what is going on, as this is fundamental to the Bill?

[Keir Starmer]

I take that point, although obviously one of the letters is not mine—

[Mr John Hayes]

I am more than happy to make my letter to the hon. and learned Gentleman available to the House immediately, and I am sure he will do the same. One important point—I want to prevent the hon. and learned Gentleman from having to deal with this himself—is that the review must be conducted during the period in which the Bill is considered, because a review after the legislation has been passed would not be sufficient. I know that the hon. and learned Gentleman has asked for that, and other hon. Members will also take an interest in it, so I happily make that further commitment on the Floor of the House.

[Keir Starmer]

I was about to say that I will happily publish my letter but that I did not have custody of that of the Minister. I will make my letter available so that all Members can see the exchange and what I asked for in my letter, and the response I received. If we do that straightaway we will have it for the rest of the debate, and certainly tomorrow when we return to bulk powers.

Turning briefly to our other demands, we have consistently asked the Government for an overarching privacy clause, and I will return to that in a moment. As the Minister said, however, new clause 5 is an overarching privacy clause. We have tabled new clause 21, and in a moment I will discuss the differences between the two. We also stated that the Bill must include a provision to make it clear that legitimate trade union activities are not a sufficient reason for powers under the Bill to be exercised—that has been a long-standing concern of the Labour party and the SNP. We have tabled an amendment on that issue and held constructive discussions, and it was the third issue on which we have been constructively engaged. The fourth issue is that there should be a higher threshold for access to an internet connection.

[Simon Hoare (North Dorset) (Con)]

As someone who served on the Bill Committee with the hon. and learned Gentleman, I welcome the approach taken by the Labour Front Bench. May I remind him that the concern to ensure the legal entity and rights of trade unions and trade unionists was shared across the Committee and not just by Labour and the SNP? It was echoed by the Minister when he responded to the debate, and by many members of the Committee.

[Keir Starmer]

I actually said that that issue was being pressed for by Labour and the SNP—I think that is accurate—but of course I accept that in Committee, and outside, there has been constructive engagement by the Government. The Minister was quick to indicate a willingness to consider this issue, and discussions have been ongoing. It is important to have clarity so that legitimate trade union activities are protected. Our new clause is now broader than the one we considered in Committee because it goes to national security as well as economic wellbeing. It therefore covers trade union activities in this country, and not just acts outside the British Isles, as would be the case if it was just about economic wellbeing. Such constructive engagement has pushed the Bill forward.

As I said a moment ago, we have made significant demands—I do not hide that—and the Government have moved significantly in response to those demands. This is not a list of victories, scalps, concessions or U-turns; our demands were significant and we stuck by them, and in fairness the Government have responded in the right spirit—that is for those demands that we know about, although we will come to others during the debate.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I am listening with interest because the question of an overriding privacy clause has concerned a lot of people. I was not involved in the Committee, and I am not a member of any Select Committees. I am waiting to hear whether the hon. and learned Gentleman is satisfied by new clause 5, which he appears to be. The drafting of legislation is always somewhat obscure nowadays, but does he think that the new clause is satisfactory? It says that the public authority should have regard to

“any other aspects of the public interest in the protection of privacy”.

Would he have preferred some reference to the right of a citizen of the United Kingdom to privacy? Does he think that there is a significant difference, or am I simply making a minor drafting point?

[Keir Starmer]

If the House is content, I will deal with that in detail later. I have tabled an alternative in new clause 21 precisely to tighten up the reference to human rights and public law. It might be easier if I deal with that point in a few minutes when I get to that provision.

Labour has asked for a revised test for judicial commissioners. Currently in the Bill, the test is reviewed by reference to judicial review principles. The concern is that the judicial review exercise is a flexible test that, at one end, has close scrutiny, when judges look at the substance as well as the process of the decision. At the other end, there is a light-touch review, when the judges look more at process. We have argued that the review should be towards the upper end of strict scrutiny. I am pleased that the Government this morning tabled a manuscript amendment setting out a test for the judicial commissioners that makes it clear that the review will be an upper-end, stricter one—the close scrutiny that we have argued for. That refers back to the privacy clause, and I will try to make good that link when I get to it.

The manuscript amendment is a constructive move by the Government to meet my concern that review must be real and meaningful, not a long-arm, Wednesbury-unreasonableness review. The manuscript amendment is a significant change.

[Mr Hayes]

The hon. and learned Gentleman draws attention to the manuscript amendment the Government tabled this morning. We did so, as he describes, precisely to deal with the point raised in Committee and by others that the judicial review process might be interpreted in different ways by different commissioners. The amendment is a tighter definition of their role, strengthens the double lock and is very much in response to the Opposition critique and that of Government Members that the new process needs to be as well defined as possible.

[Keir Starmer]

I am grateful to the Minister—that was what the Opposition pressed for.

There have been differences of approach to the test for judicial commissioners. On the one hand, colleagues on both sides of the House have made a powerful argument that the judicial commissioners should retake the decision. On the other hand, others have argued that the decision should be reviewed. The amendment strikes a third route, which is to apply a review test but to confine it to the stricter end of the judicial review principles.

As hon. Members know, I have been a lawyer for many years and have dealt with many public law cases, as other hon. Members have. The difference between strict scrutiny and long-arm judicial review is very real —it is a material difference. That is why the manuscript amendment is highly significant.

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

It has been a pleasure to work with the hon. and learned Gentleman on the Bill. Like me, as a lawyer, he will have advised clients frequently on judicial review. He will no doubt agree that judicial review looks to the reasons given for a decision. There is no duty on the Secretary of State to give reasons for her decision on whether or not to grant a warrant. How can there be judicial review when no reasons are given?

[Keir Starmer]

The hon. and learned Lady made that very important point in the Bill Committee. Normally when decisions are subject to judicial review, there are reasons for the decision. What is envisaged is that the decision itself, plus such material as has been looked at by the Secretary of State, will be put before the judicial commissioner. There will not be reasons, which makes the task more difficult, but what is important about the test set out in the manuscript amendment is that the judicial commissioner must ensure that the duties under the privacy clause are complied with, which means that he or she will have to look at that underlying material. It might well be a good point to say, “If there are reasons, it would be an easier task,” but I do not believe the task cannot be performed without reasons. In due course, the judicial commissioners may say, “We need further help on particular issues.”

[Mr Hayes]

The hon. and learned Gentleman made the point in passing, but it is salient: in reviewing what has happened, the commissioner will receive the same information as the Secretary of State. The review will not, as was feared at one point, merely be a review of process, in which the reviewer would say, “Yes, the Secretary of State has taken the right steps,” rather than looking at the arguments that the Secretary of State had considered. Those are the two points I make on what he and the hon. and learned Member for Edinburgh South West (Joanna Cherry) said.

--- Later in debate ---

[Mr David Davis]

rose—

[Keir Starmer]

I am happy to give way again straight away.

[Mr Davis]

There were two reasons for concern. First, the House should seek certainty in the law, rather than any notion that the law would alter depending on the judge. The Minister is one of those who wants certainty in the law and less law-making by judges, so he should accept that point. Secondly, the Home Secretary reviews approximately 2,500 warrants a year—10 a day. The ability to do so is dependent to a very large extent on the data presented and the time available. The reason we wanted a reasons-based judgment was the feeling that an hour on any given warrant was simply not enough time. At this point, I do not know whether this provision will meet that requirement, but that is the test in my mind.

[Keir Starmer]

I am grateful for that intervention. The certainty point is really important. It is a point that Lord Judge made when he gave evidence to the Public Bill Committee. When I asked him about the reference to judicial review principles, he was concerned that that was not clear enough for the judges to know which particular test they were to apply. Now, with the new text in the manuscript amendment, it is crystal clear to the judges that they review the decision according to judicial review principles, but they must

“consider the matters referred in subsection (1)”—

necessity and proportionality—

“with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by the section”.

That is the privacy clause. The test for the judges is now crystal clear: look at necessity and proportionality, and review the Home Secretary’s decision with a sufficient degree of care to make sure that the judicial commissioner complies with the duties imposed by the general provision in relation to privacy. That deals with the certainty point.

As far as the reasons are concerned, I cannot improve much on my previous answer. What I think is envisaged is that there will be a number of judicial commissioners whose task will be to undertake this review, and to take such time as they need to look at the material and apply this test. They will not necessarily have the constraints that the Home Secretary and the Foreign Secretary have, but obviously a lot of this will happen in real time, so there will be the constraint of time in that sense. As I said, they will not be doing that alongside the other sorts of duties that a Secretary of State has to carry out during the course of a day.

I share the concerns that have been expressed on this matter, but I am clear in my mind that close scrutiny on judicial review principles is markedly different from Wednesbury unreasonableness and makes a real difference in real cases, so long as there is access to all the material, and clarity that the privacy provisions must be complied with. That effectively means that there are factors that it is mandatory for the judicial commissioner to take into account. That makes a material difference. That is why we will support the amendment.

[The Solicitor General (Robert Buckland)]

The hon. and learned Gentleman and I debated this point closely in Committee, and I thank him for the way in which he has approached the matter. With regard to clarity, it is not now beyond any doubt that the test will depend not on the personality of commissioners, but the facts before them? They have a very clear basis on which to make their judgment, looking at the particular degree and seriousness of the case, and balancing the right to privacy with all the qualifications that he, I and others know exist in article 8.

[Keir Starmer]

I am grateful for that intervention. To illustrate why we are satisfied, under the general privacy clause—I have a tighter version of new clause 21, but for this purpose that does not matter—one of the general duties is to have regard to

“whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means”.

Under this test, a judicial commissioner will have access to the material, will obviously know the Secretary of State’s decision, and will have to ask himself or herself that question. That is a long way from simply asking whether a decision was so unreasonable that no reasonable Secretary of State could have taken it, and that is why the new clause makes it clear that it is close-scrutiny review, rather than long-arm review, that is being dealt with.

--- Later in debate ---

[Mr John Hayes]

I note the hon. and learned Gentleman’s comments about the difference between the two new clauses, and the Government are not blind to his argument about ensuring that the connection to human rights is secure. The Bill will clearly continue to enjoy scrutiny over the coming weeks and months, and he needs to know that, as he described earlier, we are always happy to listen and learn. I hope that tonight we can establish that an overarching privacy clause is essential, and can continue to have a discussion about the fine details.

[Keir Starmer]

I am grateful for that indication.

[Victoria Atkins (Louth and Horncastle) (Con)]

Section 6 of the Human Rights Act requires public authorities to have regard to the Act in any event, so I wonder what advantage the hon. and learned Gentleman thinks referring to the Act in the Bill will have.

[Keir Starmer]

I am grateful for that intervention, because it drives us back to the point of the privacy clause, which we debated in Committee and which has been debated elsewhere. It is important for three reasons. First, this is a statement of principle about the important interests and duties running through the Act, and it is important to have that statement in the Act. It avoids inconsistency and reminds decision makers of the importance of taking into account privacy, the integrity of data, human rights and so on in all cases, so this is a matter of principle.

The second reason why our new clause is important is that of practical considerations. I worked with the Police Service of Northern Ireland for five years in relation to its compliance with the Human Rights Act. Having structures and decision making written into everything it did helped it to reach better decisions, and I am sure it is the same for other police forces and for public authorities. Never underestimate the practical application that such a clause has in real time for people in public authorities trying to do their job. The third reason—I will come back to this in a minute—is that our new clause gives real teeth to the test that the judicial commissioners apply, because there would be a link between the privacy clause and the test.

[Mr David Davis]

I thank the hon. and learned Gentleman for his patience in giving way so many times. Frankly, I favour his version and the reason is this. It rather bounces off something he said earlier, when he was talking about the protection of trade unionists. Of course, he is right: historically, there have been cases, 20 years ago or so, of what one might call foolish interference in trade union actions by the agencies. Today, one of the problems is interference in what might be thought of as legitimate demonstrations, by environmental groups and so on, that have become public scandals. When he was talking about trade unionists, I was trying to think how we generalise that. It seems to me that his new clause is the right way to protect those engaged in legitimate democratic activity from improper intervention.

[Keir Starmer]

I am grateful for that intervention. It is the historic trade union cases that have caused so much concern, but our new clause is intended also as a future-proofing exercise to ensure that, whatever human right is at issue and whichever individual or organisation is involved, there is a provision that requires decision makers to take into account the convention rights involved.

[Mr Grieve]

The hon. and learned Gentleman will have seen that the Intelligence and Security Committee has tabled a short amendment that says:

“This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”

We felt that that, linked to either his or the Government’s amendment, would send out a clear general statement about the state’s requirement to protect privacy. I wonder whether he has a view on that, because it seems to me that our amendment would add something without in any way undermining the ability thereafter in the Bill to undertake those necessary interferences that might be required.

[Keir Starmer]

I am grateful for that intervention, because what amendment 14 makes clear—the point is sometimes missed—is that these, or indeed any, investigatory powers affect an individual’s privacy. We have to be absolutely clear: the right to privacy is fundamental, but it is not absolute. The Bill gives the state a power to interfere with privacy—that is what it is about. The question then becomes: is there a case for the interference in the first place, and if there is, is that interference necessary and proportionate? Obviously it is for the Minister to respond to our amendment, but in a sense it is all of our duties to remind ourselves that this is all about an interference with privacy, and that is why the safeguards are so important.

The third reason the overarching privacy clause is important is that it is now linked to the test for judicial review of the Home Secretary and Foreign Secretary’s decision, so it has real application every day when one of the warrants is applied for.

Finally, let me say a few words about the appointment of judicial commissioners, an issue that has cropped up a number of times. Under clause 194, it is for the Prime Minister to appoint the Investigatory Powers Commissioner and

“such number of other Judicial Commissioners as the Prime Minister considers necessary for the carrying out of the functions of the Judicial Commissioners.”

Before doing that, he must consult the Lord Chief Justice of England and Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. Our amendment 298 would ensure that the Prime Minister acted on the recommendation of

“the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,”

and likewise the recommendation of the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland in relation to Scotland and Northern Ireland.

The reason is that it is envisaged that judicial commissioners will be appointed from among those who are already very experienced judges—High Court and above—either serving or retired. They will obviously have gained the qualifications to be judges and will be appropriately skilled and qualified to take these decisions, so in truth the exercise of appointing a judicial commissioner will be an exercise in deploying, from the pool of available judges, those who will sit as judicial commissioners.

That is an important consideration. Our amendment is tabled on the basis that it is not appropriate for the Prime Minister to decide that sort of deployment—he does not have the skills and experience to do it—nor, in a sense, should it be a political deployment. This is something routinely done by the Lord Chief Justice of England and Wales. Our amendment would ensure that the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland make a recommendation that binds the Prime Minister. The appointment is, of course, the Prime Minister’s, but that is the right way to carry out the appointment to this important judicial role, rather than the version in the Bill.

[Mr George Howarth (Knowsley) (Lab)]

I am grateful to my hon. and learned Friend for giving way again. If the recommendation should be a judicial one and if, as I think I understood him to say, the Prime Minister would not have the ability to overturn it, I fail to understand what the point would be of involving the Prime Minister at all.

[Keir Starmer]

The answer to that is twofold, although I should say that if the decision was on the recommendation of the Lord Chief Justice and so on, it would not be open to the Prime Minister not to follow that recommendation. We need a slight reality check. At the moment under clause 194, if the Lord Chief Justice of England and Wales—or, I am sure, the equivalent in Scotland—was consulted and made his or her views clear, it would be highly unlikely that any Prime Minister would act in a way that was contrary to the advice they were receiving from the senior judge in those jurisdictions, but our amendment would bind the Prime Minister. The question is: what is the point of involving the Prime Minister? The answer to that—to some extent this is to the Minister—is that there is the question of accountability for making the appointment.

There is also the point, as the Lord Chief Justice has pointed out, that he—or she, as the case may be—is not in the business of making judicial appointments as such, and will therefore be reluctant to have that power. The Minister might want to confirm that, because he has been having those discussions, not me. I think the Lord Chief Justice and others are reasonably happy to help with the deployment exercise, but not with the business of appointing judges.

[Mr John Hayes]

I have no doubt that the Solicitor General will deal with this later, but the point is that the Prime Minister is ultimately responsible for the protection of national security. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said, when Lord Judge gave evidence to the Joint Committee, he made exactly the point that the hon. and learned Gentleman has made. Just to affirm the other argument that he advanced, the Prime Minister will of course seek advice on these matters in the way that the hon. and learned Gentleman has described, and I share his view that it is highly unlikely that the Prime Minister would then take a perverse decision.

[Keir Starmer]

I am grateful for that indication.

I have taken longer than I had anticipated. I think I have taken every intervention, because important points were being made—that is in mitigation rather than an excuse, I suppose—but the House will be pleased to know that I have finished, at least on these amendments.

[Mr Grieve]

It is a pleasure to take part in this debate. As will be noted, the Intelligence and Security Committee has tabled a number of amendments to this part of the Bill for the House’s consideration. I want briefly to run through them and explain the Committee’s collective position.

I want to start, however, by commenting on the debate we have just been having about privacy. It seems to me that it is absolutely central to the duty on this House that we should ensure that the principle of the right to privacy against the state is maintained except if there is a good and sufficient reason why that should not happen. In that context, it is extremely important that the Bill should be clear about the right to privacy. I very much welcome new clause 5; indeed, the difference between that and the new clause tabled by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) is, in reality, very slender indeed, as I see he acknowledges.

[Keir Starmer]

indicated assent.

[Mr Grieve]

That said, words sometimes matter, and the clearer the statement, the better. I hope that my right hon. Friends on the Treasury Bench will take that into account.

Child Refugee Resettlement

Keir Starmer Excerpts

Tuesday 10th May 2016 Commons Chamber

[James Brokenshire]

In implementing this policy, we are very conscious of the way in which people traffickers and smugglers can twist and interpret the statements that we make. I know that no one in this House would want to see more children lose their lives in the Mediterranean sea or in the Aegean, which has, sadly, been a consequence of these people trading in human misery. I assure my hon. Friend that we take this issue seriously. The best interests of the child are at the forefront of our activity. We will continue to underline the message that this scheme is for children who were in Europe prior to 20 March, so that it cannot be open to that misinterpretation.

[Keir Starmer (Holborn and St Pancras) (Lab)]

Yesterday’s debate was very much about how the Government came to accept the final Dubs amendment. Today is clearly about the what and where we go from here. I am glad that this urgent question was granted, because there was an apparent discrepancy between the approach the Minister outlined yesterday and what The Daily Telegraph reported this morning had been briefed from No. 10. The Minister has dealt with that.

The resettlement scheme has expanded over time. It started as a scheme to support, rather than take, refugees. It was expanded to include victims of sexual violence, then 20,000 people over five years, and then 3,000 children and families from the region. It has now been expanded by the final Dubs amendment. In fairness, where the Government have accepted the spirit of the expansion, the scheme works well. I have seen the resettlement of families in Glasgow and Colchester, where the scheme works very well. This next iteration is a challenge, but there is a huge prize if we get it right, particularly as it involves very vulnerable children who are here in Europe right here, right now.

I have some questions for the Minister. If the discussions have started, as he suggests, there must be an idea of the numbers, because there cannot be meaningful discussions unless there is some idea of how many children are involved. What is the broad number that the Government are looking at? The original Dubs amendment included a figure of 3,000. What figure are the Government at least discussing at the moment?

The second question is when. I absolutely agree that seven months is too long for children. There is an urgency here. We are all focused on the 10,000 children who according to Europol have gone missing. Those children are very vulnerable and in great danger. Seven months is a very long time in the life of a child, especially one who has gone through such circumstances.

Finally, what are the funding arrangements? It strikes me that the current scheme is working well because resources are being provided to local authorities and others to make sure that it beds in and that families are supported and welcomed and have the resources and facilities that they need.

What are the numbers, when will the children arrive and what are the funding arrangements?

[James Brokenshire]

I thank the hon. and learned Gentleman for his comments on how we have sought to implement the scheme. As I have already indicated, we intend to follow the same approach in taking these measures forward and effecting them appropriately, with the best interests of the child in place. We are not looking to delay, and I hope we will make positive progress in the months ahead.

On numbers, the hon. and learned Gentleman will be aware that the amendment, which is now part of the Immigration Bill, says that we need to consult local authorities to establish what is termed the “specified number”. Although I recognise the desire for clarity, it is important to have that consultation first, to meet the requirements of the legislation. I do not want to prejudge the consultation but to get the numbers from it.

As for when, that will clearly be informed by the consultation, but, as I have indicated, we are not looking to delay. We want to make progress quickly in the weeks and months ahead. We are discussing funding across Government. The hon. and learned Gentleman will be aware that unaccompanied asylum-seeking children are already funded when they arrive in the UK, and there are clear funding arrangements for local authorities. We need to be cognisant of that. We will look closely at implementing the scheme in a manner consistent with a number of existing arrangements.

Immigration Bill

Keir Starmer Excerpts

Ping Pong: House of Commons
Monday 9th May 2016 Commons Chamber

[James Brokenshire]

I do not want to conflate, as the right hon. Gentleman seems to be doing, those who claim asylum in this country and are then determined not to have a valid asylum claim—we would therefore seek to remove them on their 18th birthday—with the arrangements we are contemplating and which I am setting out to the House this evening. Obviously, we are looking carefully at the nature of the leave that will be granted. It is important to understand and recognise that where we are seeking to reunite children with parents here, the Dublin arrangements would normally mean that they would have the same leave as the person who was here. Equally, if we are looking at resettlement, different leaves may be involved. We are looking at this carefully with UNHCR and others.

I hope that colleagues will agree that accepting the amendment is the right thing to do. No country has done more than Britain when it comes to help for Syrian refugees. Accepting this amendment demonstrates the Government’s approach of doing more for refugee children across the globe while upholding the principle that we should not be encouraging vulnerable people to make that perilous journey. We remain of the view that we can have the biggest impact by supporting refugees in affected regions and the countries hosting them. Those we resettle here are the exceptions and the vulnerable whom the UNHCR advise need to be resettled in a country such as the UK. That has always been the cornerstone of our policy and that should remain the case, but we recognise our duties, both in the EU and beyond.

[Keir Starmer (Holborn and St Pancras) (Lab)]

Let me start by discussing unaccompanied refugee children in Europe and reminding the House that two weeks ago the Government voted against Lord Alf Dubs original amendment here in this House. Last week, they voted against this amendment in the other place. Obviously, I welcome the change of position, but it is just that. Whether voting against an amendment last week and accepting it this week is listening, as the Government would have it, or U-turning, as I would have it, is a matter for debate, but clearly there is a changed position.

[Heidi Allen (South Cambridgeshire) (Con)]

I am disappointed to hear language of that nature, because the Government have not made a U-turn; they have been very carefully weighing up how on earth to mitigate the pull factor, which still remains a huge danger. They have taken their time to deliver proposals that will work and will not endanger children in the future.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. The fact remains that only last week the Government voted against the Lord Alf Dubs amendment, as it was then put in the other place, which was a change from the position the last time we saw it in this House. I welcome this change of position, which is a step in the right direction, but I wish to pay tribute to those who have got us this far. I pay particular tribute to Lord Alf Dubs and to my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), who has raised this matter on so many occasions, both in this House and elsewhere. I also thank Save the Children and the other charities and non-governmental organisations that have given their support. I pay tribute to those on the Conservative Benches who have urged the Government to reconsider their position. They have done so over several weeks and months and played an important part in getting us to where we are today.

It is important that actions match words. Citizens UK has identified 157 children in Calais with family connections here. Obviously, there are many children in equally appalling conditions in Greece and Italy. Although the Minister does not want to put numbers and a timetable to the proposed change to the resettlement scheme, the challenge for the Government is surely to take all those in Calais with valid legal claims for reunification notwithstanding the fact that they are in France—

[Sir Gerald Howarth]

Reunification in France?

[Keir Starmer]

Reunification with their family here under the Dublin arrangements. The Minister has made it clear on a number of occasions that he is seeking to improve the reunification rules under the Dublin arrangements. Some 157 children have been identified as falling into that category. This is the time for action, not words. We also challenge the Government to take 300 children most at risk in Greece and Italy before the start of the next school term. There is an urgency to this situation. The debate two weeks ago was dominated by a real and genuine concern about the missing children—those who are at risk of exploitation, trafficking and various other aspects of mischief. That is the challenge. I ask the Minister to say a little more to the House about the numbers and the timetable.

[Tim Loughton (East Worthing and Shoreham) (Con)]

I also pay tribute to the Government for the immense amount they have done to help displaced Syrian refugees. Will the hon. and learned Gentleman also take on board the huge pressures that are already on children in care in this country? Some 70,000 children in England are in care, and there is a shortage of 10,000 foster carers. It is really vital that we are able to offer safekeeping to those children who are coming here and to do it sustainably and not to the detriment of the other children to whom we already have a responsibility.

[Keir Starmer]

I agree that if children are to come to this country under the proposal put forward in this amendment, it must be done properly with the relevant local authorities receiving full support.

I also supported the amendment that sought to enable movement and help to pass from one local authority to another. Kent, in particular, has provided a lot of support. Although there has been voluntary support from other local authorities, the amendment proposed by the Government during the passage of the Bill put in place a provision to allow that to be more meaningful and effective, and I supported that for the very reasons that have been mentioned in this House.

I want to move on to immigration detention, because there are two substantive issues still before—

[Kelly Tolhurst (Rochester and Strood) (Con)]

Will the hon. Gentleman give way on that point?

[Keir Starmer]

On immigration detention? I have barely started. I really think that I should press on, as we have limited time.

On immigration detention, the Stephen Shaw report made it clear that there is now near universal acceptance that detention makes people more vulnerable, and disquiet has been growing. Lords amendment 84 tackles that issue head on, by sensibly providing a 28-day period of immigration detention after which the Secretary of State can apply to extend detention in exceptional circumstances. That amendment strikes the right balance and reflects both the cross-party reports by the all-party groups on refugees and on migration and long-standing Labour party policy. It also had cross-party support in the Lords. Amendment 84A in lieu provides for four months of immigration detention, with an ability to apply for bail at the end of that exercise. That is markedly different: it is four months rather than 28 days; it puts the onus on the individual rather than on the Secretary of State; and it is subject to a different test. It does not go far enough, which is why we will vote in favour of the Lords amendment this evening.

Let me move on to the position of pregnant women. I remind the House of an important finding of Stephen Shaw’s report. As he put it, it is “obvious” that detention has harmful effects on both the mother and the unborn child. The Royal College of Midwives, in its evidence to him for his report, pointed to the special vulnerabilities of pregnant women and made it clear that appropriate care cannot be given in detention. Add to that the fact that until now, the vast majority of pregnant women have not been removed, and one can see why he concluded that the current policy was not working. He rightly concluded that the only move should be to absolute prohibition. That has been the Labour party position consistently, and that is why we voted as we did on 25 April.

--- Later in debate ---

[Stella Creasy (Walthamstow) (Lab/Co-op)]

Does my hon. and learned Friend agree that we should move to not detaining vulnerable people at all? It is expensive and immoral. In this amendment, we see some movement on that, because after all, we consider pregnant women to be vulnerable, but given that two thirds of the women in places such as Yarl’s Wood are victims of sexual violence in conflict, we really should not detain any of them at all.

[Keir Starmer]

I am grateful for that intervention. On vulnerable individuals as described, I agree. I state again that our position, particularly in relation to pregnant women, is that they should not be in immigration detention at all. However, this is a move in the right direction by the Government, and the limit proposed is better than no limit at all.

Unfortunately, the amendment in lieu undoes a lot of the good work, because it seeks to remove the overriding principle that there should be detention only in the most exceptional circumstances, and seems to remove the provision relating to medical facilities. For those reasons, we will not support the amendment in lieu, but will support the Lords amendment.

[Sir Gerald Howarth]

I quite understand the difficulty that the Government face. As I am sure that my hon. Friends will agree, the British Government have done more than any other Government apart from that of the United States of America to help those fleeing the torment in Syria and other parts of the middle east. I warmly welcome that part of the Department for International Development budget; that is a good use of its budget, though I may disagree with other parts of it. I accept that the Government face some opposition to their policy from Conservative Members, but the Government’s original policy was absolutely right. The right hon. Member for Leicester East (Keith Vaz), representing the new champions of the premier league—he is not wearing his scarf today; clearly he has deserted his—[Interruption.] Ah! The scarf is under there! He said that he hoped that the amendment would not exacerbate the pull factor, but I am afraid that all reasonable opinion in this country will conclude that it will do precisely that. If we agree to this amendment, we are sending out the message that Britain is a soft touch. Also, it is a cruel policy, as I have said to the Aldershot News & Mail—[Interruption.] The hon. Member for Westmorland and Lonsdale (Tim Farron) is being facetious about the Aldershot News & Mail; it is a very important organ of communication.

The policy is cruel because it will encourage desperate, tragic parents to send their children across the inhospitable seas of the Mediterranean in search of a better life. Who can blame them for wanting to do that? However, they are parents and their responsibility is to their children. It is not our first responsibility; it is that of the parents, and they will be encouraged by this measure to send their children across that dangerous sea and put them at risk in the hope that they will be able to get not just to other safe countries—France, Greece or Italy—but to the United Kingdom.

If this House is saying, in the middle of a debate on whether Britain should remain a member of the EU, that—[Interruption.] Members on the Opposition Benches should not sneer. If this House is saying that Italy, France and Greece are not safe countries, why on earth are we members of that organisation?

EU Immigration

Keir Starmer Excerpts

Thursday 5th May 2016 Westminster Hall

[Keir Starmer (Holborn and St Pancras) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. I will be very brief. There are important elections going on today and I for one want to rejoin my team in Holborn and St Pancras as soon as possible to play my part until the polls close at 10 pm.

I recognise the importance of the issue we are debating; it is important to the country and to the EU referendum debate. However, people could be forgiven in recent days for thinking that this is the only debate that those who want to leave the EU want to have about Europe—even on a day when people in all four countries in the UK are going to the polls. I and the Labour party strongly support remaining in the EU and being at the heart of reforming it, not leaving it. Remaining in the EU is better for British jobs, for security and for our economy. It also equips us better to tackle complex cross-border issues such as the environment and global terrorism.

There are clear benefits to free movement and migration. There is the economic case: the ease of access to the world’s largest market. There is the cultural and social case: migration has benefited the UK and made it a more diverse and confident country. It has helped to build our public services—for example, the national health service is reliant on migration—as well as businesses and universities. To take an example, one in five carers looking after our growing elderly population has come to Britain from the EU and elsewhere. It works both ways: about 1.2 million British people are taking advantage of free movement to work and live in other European countries. It is also important to remember that movement is not unrestrained; there are exceptions, we have border controls and we can deport individuals within Europe.

I acknowledge, and the Labour party acknowledges, the challenges that free movement can bring. I recognise that the sharp increase in migration in certain areas can cause cultural dislocation and pressure on services. I have seen that around the country—in the north-east and the north-west, in particular—and recognise that it is a challenge that needs to be confronted. We believe strongly that the answer is not to leave the EU but to reform it, to ensure that money and services follow people much more closely, for example through regional funds, and to look at how we can tackle issues such as low pay and protecting the going rate.

We also need to look at our own policies and regulations, rather than blaming the EU for everything. For example, we should be toughening labour market enforcement—that is dealt with in the Immigration Bill, which is in the final stages of going through Parliament—stopping gangmasters and introducing new laws on fair recruitment. There are UK solutions that I believe we can and should be introducing. For those and other reasons, I support staying in and leading in Europe, not leaving it.

Dublin System: Asylum

Keir Starmer Excerpts

Wednesday 4th May 2016 Commons Chamber

[James Brokenshire]

Thank you, Mr Speaker. I am always the servant of the House in this regard.

My hon. Friend the Member for St Albans (Mrs Main) has raised various points. The UK has a very clear opt-in arrangement in relation to justice and home affairs matters and we retain firm control over the ability to decide which matters to opt into, as I explained clearly in my opening comments.

The existing Dublin regulations provide a significant benefit. As I have said, we have used the process to remove nearly 12,000 people from the UK to other EU member states over the past 10 years.

My hon. Friend asked whether we may subsequently be bound by, or be required to be participants in, the new arrangements. I point her to a specific statement in the European Commission’s press release:

“The UK and Ireland are not required but instead determine themselves the extent to which they want to participate in these measures, in accordance with the relevant Protocols attached to the Treaties. If they do not opt in, the current rules as they operate today will continue to apply to them, in line with the Treaties.”

That provides the important clarification and certainty sought by my hon. Friend. Clearly, that provides protection in relation to whether or not we decide to opt into certain matters, including the quota penalty, to which she referred.

[Keir Starmer (Holborn and St Pancras) (Lab)]

Let us be clear from the start: through our opt-out on home affairs and justice, Britain would not be required to take part in any asylum relocation system, nor would we be required to pay any financial levy to avoid it. Let us also be clear, however, that we have a keen national interest and a moral responsibility to ensure that effective systems are in place to tackle the worst humanitarian crisis in Europe in a decade. A humanitarian crisis on this scale clearly needs a concerted EU-wide response.

It is clear that the Dublin arrangements are not working on the ground. They are not able to cope with the numbers or process the claims. For those precise reasons, Labour has been calling for many months for a reconsideration of how the Dublin arrangements work in practice. The Government, as ever, have been slow and reluctant to act, as characterised by the Minister’s involuntary appearance here today.

Labour is also clear that the key Dublin principles preventing first country states from refusing to process asylum seekers and allowing return to first country are important. We welcome the Government’s update on that, but what reform proposals have they made to the Commission?

There is also the wider and key question of unaccompanied children in Europe. Today the chair of the Association of Jewish Refugees called on the Prime Minister to do more to help what he called “the most vulnerable victims” of the Syrian conflict. We cannot continue to sit on our hands or to be subject to the repugnant rhetoric that these children in Europe are safe—they are not. There is a groundswell of support. When will the Government finally listen? If there is to be a U-turn, the sooner it happens, the better.

[James Brokenshire]

The hon. and learned Gentleman clearly did not hear what the Prime Minister said at Prime Minister’s Question Time just a few moments ago. He said that we are in discussions with Save the Children and the United Nations High Commissioner for Refugees about what further assistance can be provided to those who had already registered in Europe before the EU-Turkey deal came into force. He also mentioned the discussions that we will have with local authorities.

I reject entirely the hon. and learned Gentleman’s claim that the Government have been slow to act on the Dublin regulations. We have sent experts to France and other European countries to support that process, to enable its practical implementation on the ground, and to ensure that it bears fruit and speeds up.

The hon. and learned Gentleman highlighted issues relating to the Dublin regulations. The Government believe that the long-standing principles at the heart of the Dublin system are the right ones, and it would be a major error to tear them up and replace them with something completely different. Dublin may not be operating as it should be, but that does not meant that its principles are fundamentally flawed. That is the approach that this Government will take to further negotiation.

Right hon. and hon. Members will not have seen the proposals in detail, because they have only just been published. It is right, therefore, that we reflect on them in detail and continue our discussions in order to ensure a reformed Dublin system that benefits the UK, while acknowledging the protections we have to maintain the existing Dublin arrangements.

Investigatory Powers Bill (Sixteenth sitting)

Keir Starmer Excerpts

Committee Debate: 16th sitting: House of Commons
Tuesday 3rd May 2016 Public Bill Committees

[Keir Starmer (Holborn and St Pancras) (Lab)]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 26—Discharge of the powers, duties and functions: protection of national security—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in protecting national security.”

New clause 27—Discharge of the powers, duties and functions: prevention and detection of serious crime—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in the prevention and detection of serious crime.”

New clause 28—Discharge of the powers, duties and functions: protection of the privacy and integrity of personal data—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in the protection of the privacy and the integrity of personal data.”

New clause 29—Discharge of the powers, duties and functions: security and integrity of communications systems and networks—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in the security and integrity of communications systems and networks.”

New clause 30—Discharge of the powers, duties and functions: necessity—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of necessity.”

New clause 31—Discharge of the powers, duties and functions: proportionality—

“(1) The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of proportionality.

(2) No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.”

New clause 32—Discharge of the powers, duties and functions: process, accountability and respect for the human rights—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of due process, accountability and respect for the human rights of those affected by the exercise of powers under this Act.”

New clause 33—Discharge of the powers, duties and functions: notification and redress—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of notification and redress.”

[Keir Starmer]

I welcome you back to the Chair, Mr Owen, for what I anticipate will be our last debate in this Bill Committee as we take this clutch of new clauses together. I say it is our last debate, but in some ways new clause 25 concerns an issue that we have been debating throughout Committee, from the very opening sitting and through every sitting we have had since. The discussion has been to-ing and fro-ing over whether there ought to be more specific provision for weight to be given to privacy in each clause or each time a power is set out, or whether there ought to be some overriding clause.

The new clause is an overriding privacy clause that is consistent with the recommendation of the Intelligence and Security Committee. For the Labour party, it is an important provision, upon which we place considerable weight. In other words, somewhere in the Bill, there needs to be a recognition of the real rights and interests that are affected by the powers in the Bill. A clause is needed to ensure consistency through the Bill, as there are examples of different powers being dealt with in slightly different ways. That clause should also act as a reminder to decision makers about the key principles they are applying in pretty well all the decisions they make. Perhaps most importantly, the clause should reassure the public on the key principles that run through the Bill.

I will concentrate on new clause 25. Considerable thought has been given to how an overriding privacy clause could be put together in a way that has meaning—and therefore gives confidence to the public—but is not so detailed as to be impractical to operate as an overriding clause. The way that the new clause has been put together is that four important public interests are recognised in paragraphs (a) to (d).

First is the public interest in protecting national security. That runs through the Bill and is the starting point. The second is the national interest in preventing and detecting serious crime, which also runs through all the powers we have debated. Thirdly, there is the public interest in the protection of privacy and the integrity of personal data. Now and again that crops up in the Bill, although not consistently, but it is an overriding interest. Fourthly, there is the public interest in the security and integrity of communications systems and networks. Those are the four powerful public interests.

Paragraphs (e) to (h) deal with the principles to be applied, including the principle of necessity and the principle of proportionality. As we have heard, there are examples where, although the Minister and the Solicitor General understandably say, “Well, of course that would be the reference point for decision making,” they are not on the face of the Bill. The new clause would provide the reassurance that that was the framework against which decisions were made.

As far as the principle of proportionality is concerned, the second limb of paragraph (f) is taken directly from the code of practice. It has been thought through and put into the code of practice but, for reasons I have argued previously, ought to be on the face of the Bill. Paragraph (g) deals with

“the principle of due process, accountability and respect for the human rights of those affected by the exercise of powers under this Act”,

and paragraph (h) deals with

“the principle of notification and redress.”

Now, they are principles and therefore are not fixed. The principle of accountability does not mean that everything must, necessarily, be transparent in the way it might be for other powers and duties in other Acts. The principle of notification does not mean there must always be notification. These are broad principles to be applied through the Act.

Whenever one tries to devise an overarching clause such as this, it is a careful exercise, or a judgment call, to try to decide what ought to be in and what ought not to be in. That is why the new clauses that follow are in the nature of a menu or suite of options. I am grateful to the Public Bill Office for giving me guidance on how to devise a number of clauses that would allow the Committee as a whole to look at each of these eight provisions and take a view on which ones ought to be included in an overarching privacy clause. My strong preference is not to get to new clause 26 and onwards, because I do not think that would be a particularly satisfactory way of dealing with an overarching privacy clause.

May I indicate, absolutely clearly and transparently, that I will listen carefully to what the Government say? In other words, I do not pretend for a moment that these new clauses could not be improved upon by different drafting. The issue we are probing is whether in principle there ought to be an overarching privacy clause, or an overarching set of public interests and principles, and if so, what broadly speaking would be included in them.

In that sense, new clause 25 can be properly described as a strongly probing clause. In other words, what we want to draw out are the views of the Committee on what an overarching clause ought to have in it; and if it is then necessary to have another joint exercise at drafting such a clause, then so be it.

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

I rise to speak as someone who, as a lawyer, will have interpreted clauses such as this to advance a particular case, giving weight to a particular clause or using it to enhance a case or stress a particular fact. To take paragraphs (g) or (h), for example, when we have already discussed notification perhaps not being necessary, they might be construed as saying that notification was necessary in a particular clause where it has no meaning at all. Will the hon. and learned Gentleman acknowledge that, in inserting in an overarching clause, we might be hostages to fortune, by including intentions that we did not intend in specific provisions?

[Keir Starmer]

I am grateful for that intervention; there are really two answers. The first is that it has been the constant refrain from the Minister that most of these principles run through the Bill and that therefore they are unnecessary, although I would say it is necessary to flush them out in this form.

To give another example, when the Human Rights Act was being passed, there was a real concern about how freedom of expression would operate in practice, and the Government of the day were persuaded that there ought to be a clause that really indicated to the courts that special consideration or weight ought to be given to freedom of expression.

All that has meant in practice is that the courts, when dealing with freedom of expression, have looked carefully at that clause and given it due weight. It works pretty well in practice; it does not tie the hands of a court. However, it is a reminder to a court of what the most important public interests were in the view of those passing the legislation and what the principles running through the Bill were. More importantly, it was a reminder to decision makers. For every case that goes to court, there are however many hundred thousand decisions that are made by decision makers on the ground.

I have some experience in Northern Ireland of working with the police over there in implementing the Human Rights Act. Counter-intuitively in many ways, having statements of necessity and proportionality built into the decision-making process really helped them, because they were able to assess, probably better than most others, why they thought what they were doing was necessary, and able to articulate why they thought it was proportionate, and they actually came to very good decisions as a result of what might be seen as broad principles being built into their decision-making process.

Such a provision would assure the public as to how the Bill is intended to operate and what the strong currents going through it are. I genuinely think it would help decision makers in the fine decisions, when they are not quite sure where the balance lies, and it would be a reminder to the courts of the particular public interests and principles that Parliament intended to lay down as running through the Bill. The danger of such a clause is always that it will be overused by lawyers, but I do not think that is what has happened in practice with similar provisions.

[Mr Hayes]

rose—

--- Later in debate ---

[Mr Hayes]

I have immense numbers of notes prepared for me by my officials. It will surprise neither them nor you, Mr Owen, that I intend to use very few of them.

It is fitting that our last debate in this Committee obliges us to consider the matter that lies at the heart of all that we have debated, which is the balance, to use the word used by the hon. Member for City of Chester, between personal interest and national interest—the balance between what I might describe as the defence of personal privacy and the underpinning of the common good. In those terms, communal wellbeing and individual fulfilment are for me inseparable, and the national interest can only be defined as the people’s interest. It is right that we should consider how that balance is reflected in the words before us.

The hon. and learned Member for Holborn and St Pancras has tabled a measured new clause that attempts to strike that balance. He is right that it is in keeping with and in sympathy with my view, expressed in our very first sitting, that privacy is woven into the Bill throughout its provisions. He is also right that the overarching emphasis we place on privacy is important.

I will draw my remarks into sharp focus simply by saying this: the Government will introduce a clause along the lines proposed, and the new clauses before us will serve to inform that. My hon. and learned Friend the Member for South East Cambridgeshire is right that that has to be done with some caution, because, as both she and the shadow Minister said, we must avoid the pitfall of it being used as a way of frustrating the intent of the Bill in all kinds of other ways. The delicacy of its construction is a matter of appropriate concern.

Nevertheless, I am convinced that the new clause makes things clear. It is a helpful addition to our scrutiny, and I will finish where I started by saying that the balance that the hon. Member for City of Chester described is critical not only to his thinking, but to that of the Government and the shadow Minister. On that basis, I hope that the shadow Minister will withdraw the new clause with the assurance that it will be central to my consideration as we bring forward measures of a precisely similar kind.

[Keir Starmer]

I am grateful to the Minister for how he has put his final observations. It was in keeping with how all our debates have been conducted over our various sittings. I will not press any new clause to a vote. Pretty much every time that my wife and I take our children into a restaurant, no matter how many options are on the menu, they inevitably want something that is not on the menu. That is the position I find myself in now. I am happy that the suggested ingredients will be taken away and put together in a way that reflects the clause that the Minister, I am glad to say, has said he will introduce. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Question proposed, That the Chair do report the Bill, as amended, to the House.

[Mr Hayes]

In summary, Mr Owen, perhaps I could say a few words of thanks. I start by saying that anyone who has examined what we have done over the last several days and weeks would agree that the interpolations have been posed without contumely and the responses offered without bombast; our consideration has been motivated by well-informed interest and our determination has been tempered by reasonableness. So it should be, for this Bill is of the greatest significance. It is fundamental that we protect our national security and public safety—one might say there is nothing more fundamental—and that is what the Bill attempts to do.

I thank you, Mr Owen, and your co-Chairs, for gluing the Committee together with both sagacity and generosity. I thank the Clerks for grouping the amendments with professional skill; the Hansard Reporters for glowing, as they always do, with expertise; the Doorkeepers for guarding us and honing their locking and unlocking skills—largely due to the hon. and learned Member for Edinburgh South West, by the way; the officials at the Home Office for their gaping and gasping, I hope in admiration at the performance of those they advise, but possibly with incredulity, I cannot quite work out which; and the Ministers and other members of the Committee, for groping for the light in the dusk if not the darkness of their imperfections.

I particularly thank the Members on my side of the Committee: three immensely learned Ladies and three honourable Gentlemen learning at their knee; an almost perfect Parliamentary Private Secretary; a wonderful Whip; and my dear friend, the Solicitor General.

It would be both unwise and ungenerous not to pay tribute to the Opposition on the Committee who have been remarkable for their diligence, their reasonableness and their good humour, and for the way in which they have gone about the business of trying to perfect the Bill. I pay tribute to the hon. and learned Member for Holborn and St Pancras. I know he does not like my saying this—I have said it twice before and he criticised me both times—but it is the first time that he has done this, despite his long experience of other related things. He has done himself proud, if I might say so. The hon. and learned Member for Edinburgh South West, with just as much diligence, has held the Government to account thoroughly, but always, as I said, in the right spirit.

The Bill leaves Committee in a much better place as a result of the deliberations, our discourse and the scrutiny we have enjoyed. I thank all those I have mentioned and any whom I have forgotten to mention for their help in making that happen.

[The Chair]

Before other hon. Members make comments, I would inform them that when the Division bell goes, I will put the Question, whether a Member is in full flow or not, so that we do not have to come back after the vote, which will take up to three-quarters of an hour.

[Keir Starmer]

Thank you, Mr Owen. I have been handed a note which says, “Vote shortly”, and I think that is an instruction not to take long, but it would be remiss of me not to pay tribute and to say thank you to so many people who have made this process work as well as it has worked.

I start of course with yourself, Mr Owen, and your co-chair, who have taken us through the proceedings in an efficient and orderly way and allowed the points to be debated in the way they needed to be debated and drawn out where they needed to be drawn out. We are genuinely grateful to you for that.

I also thank the Public Bill Office. This has been a huge exercise and, on occasion, amendments that we thought we had lodged were not lodged where we thought they had been lodged and therefore, at 10 o’clock and 11 o’clock at night, the team upstairs was working to find the amendments, put them back in the proper order and make sure that we had them for the next day’s deliberations. It was not just what we might consider the ordinary working hours.

I think I am right in saying that, for better or worse, more than 1,000 amendments have been tabled by Labour party, Scottish National party and Government Members. That is a pretty record number. I think we have had up to 40 Divisions on the Bill. There has been a huge amount of work over and above, and we are all grateful for it. We are grateful for the work done to ensure that Hansard properly reflects what has gone on in this debate, so that things are put on the record accurately and that others can see what was argued, why it was argued and how it was argued not only when the Bill progresses through the House but also if and when it becomes an Act. We are also grateful to the other staff—the Doorkeepers and so on—who have helped with the process.

May I thank the Home Office team? Although, in a sense, they provide the notes to Government Members, I know how hard they have to work behind the scenes to ensure that what appears, particularly from the Minister and the Solicitor General, is informed, up to the minute and seemly and deals with difficult and probing issues. That is a huge amount of work behind the scenes. They have been helpful to the Opposition as well—

[Mr Hayes]

And we finished a day early.

[Keir Starmer]

And we finished a day early. I would like to pay tribute to both the Minister and the Solicitor General. There are different ways of doing this. I am not over-experienced in it, but I know that sometimes there can be trench warfare, where both sides simply dig in, fire their ammunition and little is achieved. They have both listened to what we have said by way of our submissions and agreed on a number of occasions to think again in relation to the Bill. That is genuine progress, although it may not be reflected in the number of votes we have won. This is my second Bill Committee, and the number of votes I have won is still a very round number. However, I genuinely think we have achieved through our dialogue and through the approach of both the Opposition and the Government something that will pay dividends and will strengthen the Bill when it becomes an Act.

I also want to pay tribute to the SNP team. As will have been evident, there has been a lot of work behind the scenes to ensure that we are not duplicating one another’s work and that we think through what we do. That has been very helpful.

[The Chair]

Order. I think the hon. and learned Gentleman should sit down and allow Ms Cherry to speak for herself, because we are going to a vote.

[Keir Starmer]

I will. I hope that the hon. and learned Lady will mention the non-governmental organisations that have helped us. Thank you.

[Joanna Cherry]

I add my thanks to all those who have been mentioned so far. It has been a true pleasure to work so closely with the hon. and learned Member for Holborn and St Pancras. I pay tribute to the people behind the scenes who have greatly assisted Opposition Members in our preparation for this Committee.

A number of non-governmental organisations have been mentioned. I will not mention any one in particular; they know who they are, and they have been of great assistance to us. I also want to thank my hon. Friend the Member for Paisley and Renfrewshire North. This is my first time on a Bill Committee, and without his assistance, I would have been in even more of a guddle than I was on some occasions. I am very grateful to him for keeping me right.

Asylum Seeker Dispersal Policy

Keir Starmer Excerpts

Tuesday 3rd May 2016 Westminster Hall

[Keir Starmer (Holborn and St Pancras) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hanson. I congratulate the hon. Member for Rochdale (Simon Danczuk) on securing this debate.

The asylum seekers dispersal policy and the contracts for providing accommodation have something of a sorry history. As we know, the six contracts were signed in March 2012 and taken up by G4S, Serco and Clearel. Only Clearel had any experience of the asylum housing sector, and that soon began to tell. The most significant findings of the National Audit Office’s January 2014 report were that G4S and Serco took on stock without inspecting it, that the Home Office did not apply the key performance indicators in the transition period and that, although the intention and hope was for savings of £140 million, the savings in the year 2012-13 amounted to just £8 million.

Those are not teething problems, but clearly ongoing problems with the current system. The Home Affairs Committee, the Public Accounts Committee and the National Audit Office all highlighted serious flaws in the operation of the current dispersal system. The use of red doors and wristbands in Middlesbrough and Cardiff, which arose earlier this year, led to disquiet among the public and in the media.

There are five big issues. The first is the standard of the accommodation being used, about which the Public Accounts Committee and the National Audit Office expressed concern. The Public Accounts Committee concluded that

“The standard of the accommodation provided was often unacceptably poor”.

I visited Oldham earlier this year—I will mention this a number of times in my speech—and I was struck by the quality of the accommodation provided on the ground in some of the towns in the north-west, where lots of asylum seekers are housed.

Secondly, there is a concern about the oversight and inspection regime. The Home Affairs Committee concluded that

“the complaints and inspection processes…appears to be flawed”.

Asylum seekers have little opportunity to make complaints, and the inspections by the local authorities and the Home Office are ineffective. The issues of the red doors and the wristbands exemplify the flaws in the system. In the end, those issues were exposed by the media, not the complaints and inspection regime, which is intended to deal with such issues.

Thirdly, there is the issue of clustering, which has been touched upon already. There are clearly marked differences in where asylum seekers are housed. Some local authorities take very large numbers—Glasgow has the highest, with some 3,000 or so—but 177 local authorities have refused to take any and a further 100 have taken five or fewer. There are clearly limits, which the Minister will point to, to the policy of not housing in London and the south-east and to the voluntary opt-in for local authorities—in other words, it cannot be mandated—but there are some marked differences. Let me take three examples at random. Swansea has rehoused 843 asylum seekers, whereas neighbouring Carmarthenshire has rehoused none and neighbouring Neath Port Talbot has rehoused only one. Middlesbrough has taken 917, whereas Redcar and Cleveland has taken just 10 and Hambleton has taken none. Glasgow, as I mentioned, has got 3,000, East Renfrewshire has got none and Renfrewshire has got just four. There are clearly big differences across the country.

Fourthly, there is a lack of appropriate support services. In other words, the dispersal of asylum seekers is not matched by appropriate support—whether healthcare, schooling or language classes—leaving asylum seekers isolated and vulnerable.

Fifthly, rising demand is outstripping housing and service supply. We all know that the number of asylum seekers has increased from about 18,000 in 2010 to 32,400 in 2015. All three providers of dispersal accommodation have emphasised that it is proving very difficult to get more accommodation for housing at a viable rate. The 2014 NAO report recommended that the Home Office share forecasts and flow with the contractors. I would be interested to hear from the Minister whether that is happening and, if so, how it is being managed.

The policy questions and issues that arise are these. We need to underline that the dispersal system should be fair, affordable and humane, and that it should protect and promote community cohesion. There is no doubt that, under the current scheme, none of those things are being achieved. I have real concerns about clustering. In Oldham—no doubt, the situation is the same in Rochdale and some of the other areas that have been touched on—I witnessed large numbers of asylum seekers being housed not only in one local authority, but in a particular area within the local authority, predominantly because housing is simply cheaper there than anywhere else. The high concentrations in the areas I visited in Oldham were causing real concern for the asylum seekers, who felt isolated because of how they were being housed, and for the people of Oldham, who felt that they were taking on too much, in one small area and more than they could cope with. So there are real problems for community cohesion in the way that the dispersal system works.

The system cannot be based purely on the bottom line. In other words, the cost of accommodation cannot be the driver—there has got to be a wider approach. Cheaper provision is not synonymous with better provision. A resonating question that has already been asked is, what are the Government doing to encourage more local authorities to take part in dispersal? To be clear, I am not suggesting that the Home Office should be mandating local authorities to take asylum seekers at this stage. I can see real problems with that if that is the fall-back position. Letters have been written, but what more can be done? In addition, what support is being offered to local authorities to make it more likely that more of them will offer to provide accommodation and other services?

What are the Government doing to improve oversight and inspection of dispersal accommodation? I have already mentioned the revelations in Middlesbrough and Cardiff; they throw up a failure of the complaints and inspection system, which needs to be looked at again.

I, too, would like an update on the savings. According to the NAO, the savings in 2012-13 were £8 million of the expected £140 million. We are now nearly four years into the contracts, and it is important for the Minister to give an update on what the savings have been, because they were the driver of the contracts.

It is time to review the overall costs, not only the cost of providing the accommodation now, compared with before the contracts, but the cost that takes the prohibition on work into account. That has been touched on. The only reason why many of the families and individuals who are seeking asylum need to be housed under such arrangements at all is that they are prohibited from working. They fall into the destitute category because they arrive with little in the way of cash or other assets and are prohibited from working. It is therefore inevitable that large numbers within that group must then be accommodated.

Measures have been taken to improve the period within which decisions are made, but many decisions are still not made or concluded within the six months—many more beyond the 12 months—so, for a prolonged period, asylum seekers are prohibited from working and are inevitably dependent upon housing at public expense, which they could otherwise pay for if they were working. All the evidence suggests that at the end of the process, if people are granted refugee status, there is a strong likelihood that they will stay within the local authority where they have been temporarily housed— perhaps inevitably. Furthermore, because they have not been able to work for the period it took for the decision to be made, the likelihood is that the local authority will still have to house them, because they will not be able to go straight into work at the end of it.

I have a probing question for the Minister. Is it time to step back and ask what the overall cost of the dispersal policy is, factoring in the prohibition on work? Would it be better in most, if not all, cases to allow people to work after a given period, so that they can pay for their own accommodation? They would not need to be in a particular local authority to do so.

That supports my wider call: it is now time to review the dispersal policy. There are clearly ongoing problems that have not been resolved. I think that the contracts expire in 2017, with a possible two-year extension, so there is a window of opportunity to review the situation before the contracts are renewed for either two years, or even longer in 2017.

--- Later in debate ---

[James Brokenshire]

I can say to the hon. Gentleman that my local authority is a dispersal area; equally, other Conservative authorities do take asylum seekers in dispersal. As I indicated, we seek to expand those numbers further and I will continue on that in the months ahead.

I want to respond to this point specifically: despite the increasing numbers, we continue to process claims promptly. Indeed, the inspection by the independent chief inspector of borders and immigration found that the Home Office had made significant improvements in the efficiency and effectiveness of its management of asylum casework during 2014-15. It had met its aim of deciding all straightforward claims made on or after April 2014 within six months, while successfully clearing all straightforward claims lodged before 1 April 2014 by 31 March 2015. The inspection also found that non-straightforward cases were being monitored effectively and decided quickly once barriers were removed.

We continue to focus on driving further improvement and ensuring that cases are determined promptly. Of course there are some more complex cases, where we may have concerns over issues of previous criminality or perhaps even war crimes that individuals may be linked to in some way. It is therefore appropriate that we consider matters carefully and cautiously in those circumstances. However, I am clear about the need for an efficient and effective service. We have been driving that through change over recent years and we intend to retain a focus on that.

On the COMPASS contracts, the suppliers are contractually required to provide safe, habitable, fit-for-purpose accommodation to comply with the Housing Act 2004 and the decent homes standards. All Home Office contracts include performance standards that are defined in the contract and managed using key performance indicators. Any failure in delivering the critical service levels may result in deductions against submitted invoices in the form of service credits. The Home Office and the providers regularly inspect asylum seeker accommodation. All three contractors are currently meeting the key performance indicators for property standards. When any defects are found through the inspection regime, such defects are being rectified promptly and within contractual time limits.

I stress the change we have made in the inspection regime. We are listening more closely to service users—I think we had not previously listened and had that rightful feedback from them to a sufficient degree—and working with non-governmental organisations to pick up on issues where they arise, so that we are better able to target the inspection regime and address any concerns about the quality of accommodation that asylum seekers use. The Home Office regularly inspects properties in Rochdale and did so only last week. The inspections found that the accommodation was of a good standard and that the asylum seekers living there felt adequately supported.

To take the point raised by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), the COMPASS contracts, as well as improving accommodation standards, remain on target to deliver £136.4 million of financial benefits during their lifetime compared with the cost of the previous arrangements. As I made clear at the recent, passionate Westminster Hall debate on 19 April on unaccompanied children, the Home Office takes its

“responsibility for the welfare of children seriously.”—[Official Report, 19 April 2016; Vol. 608, c. 286WH.]

We have stringent and statutory policy safeguards in place regarding child welfare. Ensuring that we treat children with care and compassion is a priority.

Last year saw a 56% increase in the number of unaccompanied asylum-seeking children arriving in the UK, particularly in Kent. The Government are grateful to all those in Kent and to other local authorities meeting that challenge for the excellent way in which they have responded to those pressures and we are keen that there should be no repetition of the situation that occurred in Kent last summer. That is why I have announced that we will put in place a national transfer scheme this summer to ensure a fairer distribution of unaccompanied asylum-seeking children across the UK. I am extremely grateful for the collaborative way in which the Local Government Association and the Association of Directors of Children’s Services have engaged with that work. I will be writing to all local authorities again after the local elections to provide further information about the scheme and the support mechanisms.

I am sure hon. Members will agree that the outpouring of support we have seen in response to the Syrian crisis has been incredible, from local authorities that have volunteered to take refugees as part of the Syrian resettlement programme, to offers of help from the general public, businesses and voluntary organisations. Less visible is the ongoing support in communities such as Rochdale and what they have been doing to provide for asylum seekers over a number of years. I pay tribute to those communities.

[Keir Starmer]

I have said before that I think the scheme to resettle Syrian families is very good, but I have a growing concern about a two-tier system. I know that there is much greater financial support for local authorities that house Syrian families than for those that house other asylum-seeking individuals. Does the Minister share my concern that there is a growing perception of a two-tier asylum-seeking system evolving?