Information Disclosure: Pre-trial Abuse of Process Hearings

Lucy Frazer Excerpts

Wednesday 22nd May 2019 Westminster Hall

[The Solicitor General (Lucy Frazer)]

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

I thank my right hon. Friend the Member for Chesham and Amersham (Dame Cheryl Gillan) for raising these important issues. I acknowledge the hurt and anger of her constituent, and how he feels as a result of what happened to him at school many years ago. Sexual abuse of children by those in positions of authority or power who abuse their position of trust is a devastating crime.

I cannot imagine what Mr Perry has been through, but I commend him—as my right hon. Friend has done —for his courage in continuing to speak out about his experiences so as to contribute to the debate on how we improve the criminal justice system for victims. I also understand what she says about her relationship with him, and I am pleased that he has been able to contribute to improvements and to the future of those who have suffered as he has. I am pleased that we have the opportunity today to discuss the concerns expressed by my right hon. Friend about disclosure of information in pre-trial abuse of process hearings.

My right hon. Friend the Member for Chesham and Amersham spoke about the broader issues in relation to disclosure. Like her, we are concerned about the broad issue. It is imperative that disclosure in a case is made properly. She correctly identified the fact that last year the Attorney General published a review of disclosure, and will be publishing further guidelines in due course.

My right hon. Friend referred in some detail to the case of her constituent, Mr Perry. As she knows, it is not appropriate for me as Solicitor General to comment on decisions made by members of the independent judiciary in the two prosecutions of Peter Wright. I understand, however, that the allegations made about the conduct of those representing Peter Wright during the original criminal proceedings in 2003 have been considered by the police, as she said, the Bar Standards Board and the Solicitors Regulation Authority. Those are the correct bodies to look at allegations of that nature.

Furthermore, in 2012, one of my predecessors as Solicitor General personally considered whether to bring contempt proceedings arising from what the judge was told in 2003, but he concluded that there was insufficient evidence to do so. I understand that the trial judge in the proceedings that led to Peter Wright’s conviction in 2013, as my right hon. Friend said, also considered the arguments that had been employed in the abuse of process application in 2003 but declined to lift the stay on proceedings.

I am not aware of any adverse findings made against any lawyers involved in the criminal proceedings arising out of the abuse at Caldicott School between 1959 and 1970. None of that is in any way designed to diminish the profound effect that those crimes must have had on Mr Perry’s life, or to detract from our commitment as Law Officers superintending the prosecuting departments to promote best practice in the care that victims of sexual abuse receive from the criminal justice system. However, the issues that Mr Perry continues to raise have not been ignored and have received serious consideration in the past.

As Members know, it is open to a defendant to argue that a prosecution is an abuse of process—for example, because of the effect of delay on the fairness of the trial—and that proceedings should therefore be stayed. That arises from the overriding duty on courts to promote justice and to prevent injustice. In these cases, the burden lies on the defendant to prove on the balance of probabilities that there has been an abuse and that a fair trial is no longer possible.

There is clear authority from the Court of Appeal that there is a strong public interest in the prosecution of crime, and that ordering a stay of proceedings is a remedy of last resort, even where there has been significant delay in bringing proceedings. As the hon. Member for Strangford (Jim Shannon) pointed out, the bar for a stay is very high. Even when a judge imposes a stay of proceedings, the prosecution can apply to lift the stay in future. As my right hon. Friend the Member for Chesham and Amersham mentioned, such an application was made in Mr Perry’s case in 2012. Although the judge declined the prosecution application to lift the stay on the 2003 proceedings, she allowed the fresh allegations against Peter Wright to be tried by a jury, and also allowed details of the abuse that Mr Perry suffered to be admitted as bad character evidence during the trial. As a result, the jury found Peter Wright guilty of abusing five pupils during the 1960s and he was sentenced to eight years’ imprisonment.

My right hon. Friend makes some important observations about disclosure in the criminal justice system. Hon. Members will be aware that the Attorney General recently carried out a review of disclosure and made recommendations to improve performance across the criminal justice system. In our criminal justice system there is a statutory duty on prosecutors to disclose to the defence any material or information that may assist the defence or undermine the prosecution case. That duty applies to abuse of process hearings as well as trials. There is also a residual duty on the prosecution at common law to disclose any information that would assist the accused in the preparation of the defence case. That duty applies from the outset in criminal proceedings and requires the disclosure of material that might enable an accused to make an early application to stay the proceedings as an abuse of process.

[Alex Chalk]

The Minister is quite properly setting out the duties on the prosecution entirely accurately and fairly. Does she agree that there is a duty, however, on all parties to ensure that what they submit does not in any way mislead the court, and that applies to the defence just as it does to the Crown?

[The Solicitor General]

My hon. Friend makes an important point that I will come on to. It is absolutely right that counsel or solicitor must not mislead the court, as officers of the court with a primary duty to the court and not to their client, but the disclosure of evidence is a different obligation on the defence. There is no corresponding legal duty on the defence to disclose information that is harmful to its case, because that is consistent with the fundamental principle that it is for the prosecution to prove its case and not for a defendant to prove their innocence.

As my right hon. Friend the Member for Chesham and Amersham rightly identified, there is an important duty on counsel and barristers; they have a professional code of conduct that includes the requirement to act ethically and with integrity at all times. That includes a prohibition on knowingly or recklessly misleading anyone, including a court, and a positive duty to behave in a way that maintains public trust and confidence in the proper administration of justice. My right hon. Friend mentioned that her constituent may have details of other cases where a court has been misled; I strongly encourage her to share those details with the CPS and the professional bodies responsible for barristers and solicitors.

[Dame Cheryl Gillan]

I am grateful to the Minister for the way in which she is responding. She mentioned that it is important to maintain trust in the regulatory bodies. In the light of the circumstances of this case, does she agreed that trust has been shaken? I will provide her with those details once my constituent provides them, so she may pass them on to the relevant authorities or look at them herself, because it is from her office that I believe my constituent wishes to have a response.

[The Solicitor General]

I appreciate that my right hon. Friend’s constituent feels that trust in the criminal justice system has been shaken. That is of concern. I reiterate that as far as I am aware no misconduct has been found by the Bar Standards Board in relation to the case, but I would be very happy—as I am sure it would—to receive any further information that she can provide.

I would like to underline the additional safeguards that exist for defendants and victims when a stay application is brought. There are a number of rules and regulations that ensure that the hearing should be conducted with due notice and in the interests of justice. The Criminal Procedure Rules 2015 set out clearly the timetable that the defence and prosecution should adhere to when preparing for the hearing. For example, the defence application must be in writing and provided to the prosecution and court as soon as practicable after becoming aware of the grounds for applying. The application must include or identify all supporting material, specify all relevant events and identify any witnesses the defendant wishes to call in support of the application. The prosecution must do likewise within 14 days of receiving the application. Both parties must serve skeleton arguments on each other and the court in advance of the actual hearing, so that everyone knows the issues to be determined at the hearing.

Victim care is important in cases of sexual abuse. Mr Perry’s experience demonstrates why it is so important that we continue to make victim care a priority in our criminal justice system.

[Dame Cheryl Gillan]

I agree with the Minister that victims should have priority in our criminal justice system—that is most important. She mentioned at the beginning of her response that she is working on new guidelines that will come out shortly. Could she give us a greater indication of when we can expect those new guidelines? Would there be any possibility of looking at the draft guidelines before they are finalised and published?

[The Solicitor General]

A review of disclosure has already taken place. Further guidance will come out in due course. I am happy to update my right hon. Friend on any further details on that and will take on board any points that she might like to make.

We are not just focusing on disclosure, although that is very important. The CPS has almost doubled the number of specialist prosecutors in its dedicated rape and serious sexual offence units, and is working with the Ministry of Justice and the Home Office to revise the victims code, to improve the support and care offered to victims. It is important to remember that these issues do not just affect the Attorney General’s office but are cross-departmental, and we are working together with Departments on those. Debates on this area make an important contribution to the ongoing work to improve the experience of victims in the criminal justice system. I thank my right hon. Friend the Member for Chesham and Amersham and her constituent for raising important issues that affect our criminal justice system.

Question put and agreed to.

Rape Trials: Treatment of Victims

Lucy Frazer Excerpts

Wednesday 15th May 2019 Westminster Hall

[The Solicitor General (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Mr Bailey. I thank my right hon. Friend the Member for Harlow (Robert Halfon) for raising this very important issue. I acknowledge his constituent’s terrible ordeal, and I am truly sorry that she feels let down by our justice system. Rape, attempted rape and other serious sexual offences are devastating crimes. I cannot begin to imagine what his constituent has been through. I commend her for her courage in speaking out, reporting the crime, raising her experience with her MP, and continuing to draw attention to the ways in which we can improve the system. I commend her for that, because it is only through reporting crimes that people are brought to justice, and other women who could be victims are saved a terrible ordeal. I thank her for going through the process, which I understand has been extremely difficult.

[John Howell]

Does the Minister think there is an opportunity to refer this matter to the Victims’ Commissioner? We have just appointed a new Victims’ Commissioner, Vera Baird, and I wonder whether it would be useful to report this. She is responsible for ensuring equal performance across the whole gamut of the justice system.

[The Solicitor General]

I have already had the honour of liaising with Vera Baird, and I very much look forward to discussing this issue with her. The issue of consistency across police forces and the CPS, and within local authorities that deal with rape victims, is very important. We will be discussing these issues, and I am sure she will have considerable insight into them.

I thank my right hon. Friend the Member for Harlow for raising this issue. I am very pleased to see the right hon. and learned Member for Camberwell and Peckham (Ms Harman) in the Chamber. I look forward to hearing about her expertise in this very important area.

My right hon. Friend the Member for Harlow said that it is important that we treat victims sensitively and with respect. I agree. I am pleased to have the opportunity today, in my first debate in my new role, to discuss how we can improve the system and what we are already doing. My right hon. Friend went through many issues thoroughly, and I want to respond to them. He said that the sentences for rape and attempted rape start similarly. Rape carries a maximum penalty of life imprisonment, and he is right that attempted rape has the same maximum penalty. A judge will have regard to the sentencing guidelines for the substantive offence, but he then selects a starting point based on harm and culpability as if he were sentencing for the full offence. He will then reduce the starting point at the lower end of the category range to reflect the fact that it was an attempted rape, not a rape. The amount of the reduction will depend on how close the offence was to being completed, and a judgment will be made on a case-by-case basis.

I realise that victims of rape and attempted rape will be extremely traumatised, but they should know that, regardless of the sentence imposed by the court, anyone convicted or cautioned for a relevant sexual offence is automatically made subject to notification requirements—in other words, they are placed on the sex offenders register. The court can also make a sexual harm prevention order on anyone convicted or cautioned for a relevant sexual offence, which can prohibit the individual from doing anything described within it, as long as the court has determined it to be proportionate and necessary.

My right hon. Friend also mentioned the lack of clarity in the statistics. He is absolutely right to highlight the importance of data. I assure him that the Ministry of Justice is conscious of the importance of data and transparency. During my time there, we worked with the media to improve public transparency. When we build a common platform for taking cases in the criminal justice process through a digital system, we will use it to improve the collection of data, which can then be shared. My right hon. Friend makes an important point about the distinction between the statistics collected on rape and attempted rape. I will pass that on to the Ministry of Justice so it can address the collection of its data as the common platform develops. With better data, we can have better scrutiny.

My right hon. Friend mentioned the treatment of victims and how they feel treated. He is right to say that the figures for reporting and for convictions could be better. That is not a new issue, as my hon. Friend the Member for Henley rightly pointed out, but we have some positive news. According to the most recent figures in the year ending June 2018, there was an 18% increase in reporting of sexual offences. The CPS has also doubled the number of specialist prosecutors in its dedicated rape and serious sexual offences units.

We need to improve the care of those brave enough to come forward. The CPS is working with the Ministry of Justice and the Home Office to revise the victims’ code, to improve the support and care offered to victims. As the hon. Member for Strangford (Jim Shannon) mentioned, cross-Department and cross-agency work is important. The CPS is also working with the police to ensure that we improve the process of the criminal justice system.

My right hon. Friend the Member for Harlow mentioned mental health, which is very important. I cannot begin to imagine the consequences of such an ordeal for someone’s mental health. We are launching a new toolkit for therapists and prosecutors on the support that an individual who suffers from a mental health condition will require.

My right hon. Friend mentioned his constituents’ use of a screen, which is an important part of the special provisions in court. We are trying to improve access to special measures, and the Ministry of Justice has committed to recording and monitoring applications for special measures, to ensure that everyone who is entitled to them can access them.

My right hon. Friend mentioned the role of sexual assault referral centres, or SARCs, and the significant funds invested in them. NHS England investment in SARC services increased from £8 million in 2013 to £31 million in 2018-19. As he mentioned, that funding has risen this year and will rise further next year. He is right, however, to say that, as with all public services, funding alone is not sufficient; it needs to be well spent. I say to him that, locally, police and NHS England commissioners have meetings with providers to review their performance. Nationally, NHS England undertakes internal assurance to look at cost, performance and quality, as well as areas of emergent risk.

I am deeply sorry that my right hon. Friend’s constituent had to wait a long time in a SARC. I understand that long waits in SARCs are unusual, as a referral is usually immediate for adults, and an out-of-hours policy states that a SARC can be opened for a referral, which can take up to two hours. I am sorry about her experience. The police, police and crime commissioners and the NHS should all hold SARCs to account. The Care Quality Commission has also started to inspect SARCs and publish the findings on its website. It is extremely important that we ensure that SARCs, which receive public funding, work well.

My right hon. Friend mentioned delays and the time that it takes not only for a case to come to court, but to go through court. It is true that sexual offence cases take longer to go through the criminal justice system than other cases. That is because sexual offences, especially rape, are some of the most challenging and complex cases with which the CPS deals. Yesterday, I met the Director of Public Prosecutions and I raised the issue of delays when such cases go through the system. He made the same point that I have about the difficulty in evidencing those types of cases. He stressed the importance of ensuring that when such traumatic cases are reported, sufficient work is done to ensure a fair trial and that, at the end of the day, if the perpetrator is guilty, he or she is brought to justice.

Unfortunately, successful prosecutions take time. We want to speed up the court process and ensure that cases are heard effectively. I know, through my time at the MOJ, that in both Crown court and magistrates court we are trying to reform the process to ensure that cases are heard more efficiently, through transforming summary justice and better case management systems in both jurisdictions.

This is a terribly important area because people who suffer from serious violent sexual offences—or attempted serious violent sexual offences—may deal with the consequences for life, as we heard from my right hon. Friend. It is therefore important that, as a Government, we continue to look at how we can improve the criminal justice system when dealing with such offences.

[Ms Harriet Harman (Camberwell and Peckham) (Lab)]

I join the Minister in thanking the right hon. Member for Harlow (Robert Halfon) for bringing this case forward. I am sure that he will have given his constituent enormous moral support and made her feel that, after a traumatic offence has been committed against her and she feels that the criminal justice system has failed her, she has at least had his full support as he has brought her case to the House. The points arising from her case are so important.

I warmly congratulate the Minister, who I am delighted to see in her new post as Solicitor General. She will take all of these issues forward. I know that her appointment, as well as her support for those in the criminal justice system who want and strive to improve it—particularly in the Crown Prosecution Service—will be welcomed. For my part, I will certainly do everything that I can to help her work.

[The Solicitor General]

I thank the right hon. and learned Lady for her comments. It is an honour to follow her in this role, albeit not immediately. She has done a significant amount of work on this matter and continues to do so. I very much look forward to working with her on this important area, which we as a Government want to improve.

It is important to understand the personal experiences of those who have gone through the process so that we can better make change. Although I hope that the constituent of my right hon. Friend the Member for Harlow will feel that she has some level of personal support, I reiterate that, by coming forward and raising the issue, she has helped to improve the justice system more broadly.

We in Government take such issues extremely seriously. We have already committed to a number of measures, some of which I have had time to mention, some of which I have not. In March, as part of the violence against women and girls refresh, we started an end-to-end review of the criminal justice system response to rape and sexual offences cases, which is ongoing. Debates such as this and hearing personal experiences are so important because they feed into that process. I thank my right hon. Friend and his constituent for a further opportunity to debate this very important matter.

Question put and agreed to.

Oral Answers to Questions

Lucy Frazer Excerpts

Thursday 16th March 2017 Commons Chamber

[The Minister for Digital and Culture (Matt Hancock)]

Absolutely. Local newspapers are incredibly important. As constituency MPs we all engage with them, as well as with the national media. I will be happy to meet the NUJ and take part in the week, as the hon. Gentleman suggests.

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

Ely cathedral has benefited from funding for essential building work from the first world war centenary cathedral repairs fund. The cathedral makes a significant and real contribution to community life. What future long-term funding is there for cathedrals?

[Tracey Crouch]

I was delighted recently to announce additional funding for many cathedrals around the country, including Ely. Cathedrals play an important part in our appreciation of heritage in the United Kingdom, so we continue to support the Heritage Lottery Fund to ensure that it continues to invest in cathedrals and other buildings of great importance.

--- Later in debate ---

[Amanda Solloway (Derby North) (Con)]

4. What steps the Crown Prosecution Service is taking to increase the number of prosecutions for violence against women and girls.

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

5. What steps the Crown Prosecution Service is taking to increase the number of prosecutions for violence against women and girls.

[The Solicitor General (Robert Buckland)]

The CPS is prosecuting and convicting more defendants of domestic abuse, rape, sexual offences and child sexual abuse than ever before. Under the cross-Government violence against women and girls strategy, the CPS has committed to a number of actions between now and 2020 to ensure the effective prosecution of these offences.

[The Solicitor General]

I know that my hon. Friend has a great interest in and concern about these serious matters. I am happy to tell her that in the last year, 1,805 cases were charged by the CPS—a rise to 70.6% compared with the figure for the previous year—and 1,867 cases resulted in a conviction. The conviction rate in Derbyshire is running at 4.4% higher than the national average.

[Lucy Frazer]

In Cambridgeshire in 2015-16 there was an increase in the number of convictions for violence against women and girls to 1,031. What is being done to use technology to improve the gathering of evidence for these crimes?

[The Solicitor General]

As my right hon. and learned Friend the Attorney General has just mentioned, the CPS and the police are embracing the use of technology. The use of body-worn cameras, which is being rolled out across the country, will transform conviction rates and the number of guilty pleas when the evidence is clear and overwhelming in these cases.

Investigatory Powers Bill (Fifteenth sitting)

Lucy Frazer Excerpts

Committee Debate: 15th sitting: House of Commons
Tuesday 3rd May 2016 Public Bill Committees

[The Solicitor General]

I am grateful to my hon. Friend, who provides an example of the sort of dialogue that will be very much part of the process. There will not be mere diktat without further discussion. I was about to develop that point in the context of the draft codes of practice, because they make it clear that should a telecoms operator have concerns about the reasonableness, cost or technical feasibility of any requirements set out in a notice, which of course would include any obligations to remove encryption, they should be raised during the consultation process. That is the dialogue that we have talked about. Also, a telecommunications operator that is given a technical capability notice may refer any aspect of it—again, I gave an example earlier—including obligations relating to removal of encryption, back to the Secretary of State for review. We have dealt with the consultation process set out in the Bill.

The Bill makes it absolutely clear that in line with current practice, obligations placed on telecommunications operators to remove encryption may relate only to encryption by or on behalf of the Government. That is the point I was making about subsection (4).

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

I wonder whether clause 217(3) is relevant in the context of what we are discussing. It shows that the Secretary of State can impose the requirements only in so far as they are practicable. The Secretary of State will be prevented from requiring a service provider to do something that it cannot do, for example because a third party has encrypted the material and it is not physically capable of assisting.

[The Solicitor General]

I am grateful to my hon. and learned Friend, who is right to pray in aid that subsection, which sets out the bones on which we flesh out the procedure in the code of practice.

--- Later in debate ---

[The Solicitor General]

My hon. Friend is absolutely right. The code of practice has been drafted in that real-life context. It will no doubt be amended and looked at—it will be a living document—as this technology develops and as we move forward. With this clause, we are trying—I do not like this phrase, but I have to use it—to future-proof the legislation to make it resilient so that it lasts and to ensure that this House does not have to return to it time and again to respond to the challenges that increased and enhanced IT present.

[Lucy Frazer]

My hon. and learned Friend referred to clause 220, which indeed does give the person who receives the notice the power to give it back to the Secretary of State, who then has to consult the Technical Advisory Board and the Investigatory Powers Commissioner, who will then take evidence from those people.

Investigatory Powers Bill (Seventh sitting)

Lucy Frazer Excerpts

Committee Debate: 7th sitting: House of Commons
Tuesday 19th April 2016 Public Bill Committees

The code of practice deals with the situation when the application is for the communications data of a journalist generally but is not intended to determine the source. Again, there is nothing on that in the Bill. All the Bill does is to have a title suggesting protection for journalists and then a test that just ensures that the other provisions of the Bill that are not specific to journalists are applied. It leaves out the vital test in the code of practice and set out in case law, which is too great to start going through at this stage. The clause is fundamentally deficient when it comes to protection for journalists.

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

I am trying to think how this will work in practice. Under the usual rules for a non-notice application, to show that it will be without notice it would be necessary to highlight a number of factors of history as to why it should be without notice rather than on notice—for example, fraud or historical events. In this case, what would the circumstance be that would make it without notice rather than on notice? There would be a significant risk that any journalist would take action. What evidence could be put to the judicial commissioner to persuade them that this should be a without-notice application? There would be no history on the journalist himself.

[Keir Starmer]

I am grateful to the hon. and learned Lady for that intervention. As she will know, there is a 20 to 25-year history of the evolution of protections for journalists, from the point when they were not put on notice to the point when they are now routinely put on notice. There are exceptions that have been tested in the Court of Appeal, but journalists are pretty well always put on notice and on many occasions will go and argue their corner to protect their source. Over the years, the case law has determined what the proper test is; on some occasions it has protected the source and on others it has allowed access. Under the PACE regime, there is now a clearly established way to proceed in cases in which journalists’ sources are an issue. It is well understood and it works well. It is significant that none of the law enforcement bodies to my knowledge are complaining that the on-notice PACE procedure for obtaining material that relates to journalists’ sources is not working in practice. Having battled it out over 25 years, pretty well all the sides accept that the current arrangement represents and protects their interests.

The amendment would essentially apply the same regime to communications data where communications data has been retained and is now being accessed. In the modern world, as journalists have made absolutely clear, to say that authorities have to go via PACE when they want to get a physical address book with a source in it but not when they want the virtual version through comms data is to cut right through the protection that has been so carefully crafted over the last 20 to 25 years. That does not protect journalists’ sources and is a cause of real concern.

Amendment 141 reflects current practice by providing for exceptional circumstances in which applications do not have to be on notice, whereas the Bill simply does not offer journalists any meaningful protection whatever. It is a carefully thought through, constructive amendment, intended to give journalists the protection they need without thwarting an investigation that needs to be protected. The test in paragraph (b) of the fourth subsection of the amendment puts the code of practice into the Bill. There is then a provision on costs.

The amendment is simple: it preserves PACE protections and extends them to communications data. It sets out the right test for the designated senior official and the judicial commissioner to apply. Nobody can quarrel with the test, because it is taken from the code of practice itself. It is all very well having warm words in the code of practice and warm words, which we have heard many times, about the protection of journalists’ sources, but unless they are translated into something that has real bite and effect, they remain warm words. I do not say that to underplay what the Solicitor General will say. I know that he believes in the underpinning principles I have outlined, but history shows that unless protection for journalists is written into legislation in a meaningful and effective way, it will not apply in practice as it should.

--- Later in debate ---

[The Solicitor General]

While I agree with the hon. and learned Gentleman on the principle and the absolute nature of the privilege—subject to the iniquity exemption that we all know about and those of us who practise are familiar with—I am talking about a restricted area, in which we are looking at the threads of an investigation as opposed to the actual meat of the subject.

[Lucy Frazer]

Will the Solicitor General give way?

[The Solicitor General]

May I just deal with this matter? As I said, I am having difficulty identifying a circumstance in which communications data—material without context or wider information—would attract that protection. In what we call the David Davis and Tom Watson case, which has been referred by the Court of Appeal to the Court of Justice of the European Union, in its judgment the court of first instance, the divisional court, said:

“No doubt such an example of privilege would rarely arise.”

I think it is important to note that, while I am not saying that it would never arise, I am having difficulty in imagining that the material itself would breach the dam, if you like, of the important safeguard of legal professional privilege.

[Lucy Frazer]

Just in response to the hon. and learned Gentleman’s point about the identity of the person being subject to legal professional privilege: in litigation it is always known, because the solicitor is on the record as to who he acts for, and at a case management conference the barristers who are taking the matter forward will be identified.

[The Solicitor General]

I am grateful to my hon. and learned Friend. There might be an earlier stage, for example at a police station in a criminal investigation, when that might not be a matter that is automatically disclosed in that way.

Investigatory Powers Bill (Fifth sitting)

Lucy Frazer Excerpts

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

[Keir Starmer]

The question for the Minister is, if that is the purpose, why is the measure not limited to thematic warrants? It is impossible to answer that question unless one wants to keep open the option of modifying non-thematic warrants. It is a simple amendment, that the provisions of a warrant issued under whatever the relevant clause is may be modified by an instrument. In subsection (1), we could achieve exactly what the Solicitor General says is the clause’s purpose by amending it to “themed warrants”, but it has not been done, notwithstanding the concerns of the Joint Committee.

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

I wonder whether the hon. and learned Gentleman’s concerns are addressed by the last five words of subsection (2)(a):

“The only modifications that may be made under this section are adding, varying or removing the name or description of a person, organisation or set of premises to which the warrant relates”.

The Home Secretary, or someone else, will receive a warrant relating to a particular person, course of action or premises, and only if that warrant relates to those things could someone then be added—it must relate to the warrant itself.

[Keir Starmer]

I have considered that, and it is fair to say that subsection (2)(a) would not allow, in essence, a completely fresh warrant to be issued under the modification procedure. There has to be a relationship between the modification and the warrant, so someone could not say, “I want a warrant against X today, and I’ll modify it to include Y, which has nothing to do with X but it is handy to modify this warrant, as we have it before us.” There has to be a relationship, which I accept is the intention and the purpose of clause 30, but the drafting is still far too wide. What if an MP or a solicitor is involved? What if it becomes known that there is a gang and we think that X, Y and Z are involved—we do not know the others—and we then learn that one of them is talking to their solicitor? The solicitor is then related. A modification would allow something to be brought in, and there is nothing to prevent it.

With all due respect to everyone who has worked hard on clause 30, of all the clauses in the Bill it is the one that the further I went through it, the further my jaw dropped because of just how wide and unlimited it is. In an area such as this, where we are talking about safeguards, it is not enough simply to point to what are in fact limited words in the code of practice. I will not invite the Minister to do something now, but I am curious—I may have misunderstood—that paragraph 5.64 of the code says:

“Minor modifications that are made by the warrant requesting agency are valid for five working days following the date of issue unless the modification…is endorsed within that period by a senior official…on behalf of the Secretary of State. Where the modification is endorsed in this way, the modification expires upon the expiry date”.

I cannot find any reference to that anywhere in the Bill. If I am wrong, I will happily be corrected, but I do not know where that comes from. Obviously, my amendments would restructure the clause to try to make it workable, but I do not see paragraph 5.64 anywhere in the clause. It would help to have that clarified.

That brings me to the amendments, which I will address briefly. In the spirit of constructive dialogue, I have tried to propose a restructuring of the clause in a way that would narrow it while leaving a workable modification provision. My amendments are not intended to be unhelpful. Amendment 68 would leave out subsection 5(c) so that the modification for a major case sits with the Secretary of State. Amendment 69 would leave out subsections (6)(d) and (e) to cut out people below senior official level so far as minor modifications are concerned. Amendment 70 would leave out subsections (7) and (8) because they are not necessary. Amendment 71 would make it clear that, in relation to MPs and legal professional privilege, all modifications must go through a judicial commissioner—if a modification goes into a protected area, it would have to go through a judicial commissioner. Amendment 72 would leave out subsection (12) because it would no longer be relevant, as senior officials would be taken out of the equation. Amendment 74 would make it clear that certain modifications have to go through the judicial commissioner. I tabled those amendments as a serious attempt to improve clause 30, which is seriously deficient for all the reasons that I have outlined. For the Government to nod this through at this stage, without standing back and asking if they have got it right, would not be the right approach.

--- Later in debate ---

[Joanna Cherry]

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

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

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

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

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

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

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

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

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

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

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

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

[Lucy Frazer]

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

[Joanna Cherry]

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

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

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

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

Ministers alluded to that—

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

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

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

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

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

Investigatory Powers Bill (Sixth sitting)

Lucy Frazer Excerpts

Committee Debate: 6th sitting: House of Commons
Thursday 14th April 2016 Public Bill Committees

[The Solicitor General]

No, because I want to develop the argument. It is vital that we look at the underpinning of all this. None of the three reports that informed the drawing up of the Bill, nor the three reports arising from the pre-legislative scrutiny of the draft Bill, recommended any changes whatever to the authorisation regime for communications data. For example, David Anderson QC recommends authorisation of the acquisition of communications data by a designated person in a public authority. RUSI recommended:

“For the acquisition of communications data otherwise than in bulk, an authorisation by the relevant public authority. Communications data should only be acquired after the authorisation is granted by a designated person.”

Prior to that, the report from the Joint Scrutiny Committee on the draft Communications Data Bill 2012 looked into the authorisation regime in depth and concluded that it was indeed the right model.

I entirely accept that anything that can sensibly be done to improve the already strongly regulated regime should be done. That is precisely why we have, for instance, provided for a new criminal offence that applies to persons in public authorities who knowingly or recklessly obtain communications data from a communications service provider without lawful authority. We have made the highly regarded SPOC—single point of contact—regime, which provides expert advice and guidance to authorising officers, a mandatory requirement in the Bill.

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

Does the Solicitor General think that one of the reasons that David Anderson supported these clauses is the benefit of communications data in Operation Magpie, to which he refers specifically in his report, when Cambridgeshire County Council protected more than 100 elderly and vulnerable persons from attempts to defraud them by using communications data powers?

[The Solicitor General]

I am grateful for that powerful example provided by my hon. and learned Friend.

It is important to note that in the report on the draft Bill—I am looking at paragraph 11 of the summary of conclusions and recommendations—the Joint Committee stated:

“We believe that law enforcement should be able to apply for all types of communications data for the purposes of ‘saving life’. We recommend that the Home Office should undertake further consultation with law enforcement to determine”—

the report then makes references to various things in the draft Bill that would not necessarily read over to the Bill that is before the Committee.

The point I am seeking to make, in the round, is that we have a tried and tested system, which is being replicated—indeed, enhanced—by the Bill, that deals with a very large number of applications. According to the latest annual report by the Interception of Communications Commissioner, in 2013 there were 517,236 authorisations and notices for communications data in total. That contrasts that with warrantry and intrusive and limited interception of communications—in the same period, there were 2,795—so we are talking about a very different set of parameters, with a large volume of requests. My worry is that, however well-intentioned the amendment is, it is wholly unrealistic when it comes to fighting crime.

Investigatory Powers Bill (Third sitting)

Lucy Frazer Excerpts

Committee Debate: 3rd sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[The Solicitor General]

I am grateful to the hon. and learned Lady for the way in which she spoke to her new clause. I see that it very much follows new clause 3. Our argument with regard to new clause 4 is slightly different because it has a wider ambit than private telecommunication.

We submit that this tort or delict would not be practicable. Communications data are different from the content of communication. For example, one would acquire communications data even by looking at an envelope or searching for a wi-fi hotspot when turning on a particular wi-fi device at home. It would not be appropriate to make ordinary people liable for such activity. With respect to the hon. and learned Lady, its ambit is too wide. That said, it is only right that those holding office within a public authority are held to account for any abuses of power. That is why clause 9 makes it an offence for a person in a public authority to obtain communications data knowingly or recklessly without lawful authority. I place heavy emphasis on the Government’s approach to limiting and checking the abuse of power by the authorities.

On the new clause, the interception tool was always intended to address the narrow area that was not covered by the interception offence in RIPA, which is replicated in the Bill. As noted, the communications data offence is intentionally narrower. It would therefore be equally inappropriate to introduce a tort or delict in relation to the obtaining of communications generally or in the areas not covered by the new offence. Under the provisions of the Data Protection Act 1998, communications data often constitute personal data. That act already provides for compensation for damage or distress resulting from non-compliance with the data protection principles and for enforcement in respect of failing to comply with the provisions of the act.

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

Does my hon. and learned Friend think that the offence of misfeasance in public office would also add a civil remedy for any wrongdoing?

[Robert Buckland]

I am extremely grateful to my hon. and learned Friend. She is quite right. In fact, not only is there the offence of misconduct in public office, as it is now constituted, having been reformed from the old offence of misfeasance, but we have provisions in the Wireless Telegraphy Act 2006, the Computer Misuse Act 1990 and, as I have already mentioned, the Data Protection Act 1998. I therefore consider that the new offence we are introducing in clause 9, combined with relevant offences in other legislation, in particular the provision in section 13 of the Data Protection Act 1998, provides appropriate safeguards. On that basis, I respectfully invite the hon. and learned Lady to withdraw the amendment.

Oral Answers to Questions

Lucy Frazer Excerpts

Thursday 25th February 2016 Commons Chamber

[Anna Soubry]

The hon. Gentleman seems to be making a very good point, which I am more than happy to discuss with the Home Office. I see that one of the relevant Ministers is already here, and we will have those conversations.

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

I welcome what the Minister has said about the figures for university applications. Does she agree that we must not take our eye off the ball when it comes to other routes, and that we must also encourage BME students to take courses such as apprenticeships and ensure that they have equal status in those routes?

[Anna Soubry]

I absolutely agree with my hon. Friend. In the city of Nottingham, I have also seen the great success of mentors and the hugely important role that they can play not only for BME youngsters but for women. Mentors do excellent work, and there is good evidence of their importance. I encourage all Members of this place to go out and make sure that in our schools everything possible is being done to make sure that there is fairness and equality.

Oral Answers to Questions

Lucy Frazer Excerpts

Thursday 26th November 2015 Commons Chamber

[The Solicitor General]

I am grateful to the hon. Lady for raising that case. When I attended a hate crime training conference at the College of Policing a few weeks ago, not only disability hate crime but the type of hate crime to which she has referred was very much on the agenda. She will be glad to know that the CPS is enhancing training for all the leaders in their regions, which I think will result in a renewed emphasis on the need to make victims confident that the system will work for them rather than against them.

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

3. What assessment he has made of the importance of communications data in securing prosecutions.

[Karl MᶜCartney (Lincoln) (Con)]

4. What assessment he has made of the importance of communications data in securing prosecutions.

[The Attorney General (Jeremy Wright)]

Communications data are an essential form of evidence used in prosecutions across the full spectrum of criminal offences, including terrorism, serious and organised crime, child sexual abuse, murder and rape. It is important for that capability to be maintained and modernised, which is why the Government have published the draft Investigatory Powers Bill.

[Lucy Frazer]

In the light of that, does the Attorney General agree that we need to continue to improve our communications data capability?

[The Attorney General]

I do agree with my hon. and learned Friend. It is important to recognise that the cases in which evidence of this kind is very significant range well beyond terrorism cases. For example, some 95% of CPS investigations of serious and organised crime involve communications data.