Serious Fraud Office

Robert Buckland Excerpts

Tuesday 7th February 2017 Westminster Hall

[Mark Field]

I very much take on board what my right hon. and learned Friend says, and I understand his concerns. He made a powerful point towards the end of his speech about the importance of there being public trust in the financial services sphere if it is to be the success we all hope it will be in the post-Brexit world.

To effect the necessary sea change in attitude and create a body with the powers of its US equivalent, we would need to be able to impose substantial fines on wrongdoers. Such fines could play a role in covering the costs of any new organisation. Clearly, there would be a need for some legislative changes, but measures would also need to be put in place to protect whistleblowers and offer genuine immunity to those who were aware of anti-competitive practice when they came forward.

[The Solicitor General (Robert Buckland)]

I am very interested in the point that my right hon. Friend outlines. What standard of proof would be applied in the proposed new regime?

[Mark Field]

I understand the point about moving away from a criminal more to a civil standard of proof. This is a back-of-the-envelope-type suggestion. I am just putting a few broader proposals forward because, as has been referred to elsewhere, the power of deferred prosecution is very much a positive step in the right direction. As Members know, deferred prosecutions will enable proceedings in a criminal case to be delayed for a given period, subject to certain conditions being met by the company in question. At the end of the set period, if all agreed conditions have been met—often, that includes paying a substantial fine along the lines of the one that Rolls-Royce had to pay—charges can be dismissed and the judgment of conviction can be entered. It is a more pragmatic prosecution-related process.

I could go on and on, but I know that at least one other Member wishes to speak and that we all want to hear from the Front-Bench spokespersons. Let me just say this, if I may: the incentives provided by healthy competition and the deterrent of stiff punishments should have formed the backbone to the new era of banking and business in the aftermath of 2008. The past two Administrations have missed the boat in restoring both the confidence of market professionals and the trust of the British public in our financial institutions. I very much hope that in addition to addressing the important issues raised in the thoughtful contributions made by the right hon. Member for East Ham and my right hon. and learned Friend the Member for Harborough, the Government will use this opportunity to take a fresh, broader look when it comes to the overall workings of the SFO, as well as its funding, and ensure that it has its rightful place within the enforcement sphere in the years to come.

--- Later in debate ---

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve once again under your chairmanship, Mr Owen. I thank and pay tribute to the right hon. Member for East Ham (Stephen Timms) for securing this debate, which has been wide-ranging and well informed. Perhaps we should expect that when we have a former Chief Secretary to the Treasury in the room and one of my predecessors as Solicitor General, my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier). Indeed, my right hon. Friend the Member for Cities of London and Westminster (Mark Field) also has long expertise in and knowledge of combating financial crime.

The hon. Member for East Renfrewshire (Kirsten Oswald) raised a specific case. I am grateful to her for raising such a serious matter. She is right to say that from the layperson’s point of view, it can be—to borrow a phrase from my right hon. and learned Friend the Member for Harborough—a bit of an alphabet soup when it comes to the investigation of serious crime. I have not had notice of that particular issue. I make no criticism of the hon. Lady for that, but my advice would be to write directly, if she has not already, to the director of the SFO, copying in the Law Officers, so that we can have full and up-to-date knowledge of the serious case she raises.

I will do my best in the 10 minutes or so that I have to answer the questions posed by the right hon. Member for East Ham. I come straight to blockbuster funding. I have to confess that I am too young for glam rock, and perhaps that is a good thing. In my mind, the word “blockbuster” conjures up the golden age of Hollywood. I do not know whether that is an appropriate metaphor, because we are dealing with an independent prosecutorial authority that, for the best part of 30 years, has worked in a particularly specialised way, bringing together investigators and prosecutors from the outset. That is the Roskill model to which right hon. and hon. Members have referred. To be scrupulously fair to the right hon. Gentleman, he conceded—I think properly—the point that some element of blockbuster funding is desirable and, indeed, appropriate. When he was in the Treasury, I am sure the same rules were applied to the SFO. The question is not one of principle therefore, but of degree.

I come back to the age old question of balance and how to maintain that from year to year. The particular criterion that is now used by the Treasury was set out back in October 2012, when the then Chief Secretary to the Treasury came to an agreement with the director in relation to the funding of very large cases. Blockbuster funding is applied for when it is expected that costs to investigate and potentially prosecute a case will exceed 5% of the SFO’s core budget, which, at present, are cases likely to exceed £1.7 million. The ability to have recourse to funding for very large cases is a model that the Law Officers fully support. The SFO has to present a business case to the Treasury, but I reassure right hon. and hon. Members that it is not the Treasury’s function to perform the role of gatekeeper and assess the legal merits of a particular case. That is not its function at all. As the right hon. Member for East Ham will well know, its function is to make sure that the case is sound and that there is evidence on which to base that application; that the SFO has demonstrated that there is a real need for the money based on specific investigations or day-to-day needs. It is on that basis that we would see an advance being made.

The hon. Member for Torfaen (Nick Thomas-Symonds) rightly refers to a written ministerial statement that I am laying today to outline the position. I agree with him that it might seem rather inelegant, but, when it comes to the need to be flexible and to recognise the ever-changing demands on the SFO, I am afraid a degree of inelegance is a price worth paying for the practical effect of making sure that the SFO has fleetness of foot for dealing with a case load that varies dramatically year on year.

[Nick Thomas-Symonds]

I do not think there is any dispute on the principle and the flexibility. The dispute is about the balance. Does the Solicitor General feel that the balance has been right in recent years? Should it be adjusted in favour of core funding?

[The Solicitor General]

The hon. Gentleman is right to bring me back to balance. From year to year, it is very difficult to predict. There will be times—he cited a year—when the amount of blockbuster funding exceeds the core funding, but there are other years when that is not the case. That underlines more eloquently than I can the essential fluidity of the system.

In replying to the right hon. Member for East Ham, I would deal with the question in this way. It would be troubling if either the Law Officers’ Department—there was once a suggestion that our Department should be the gatekeeper—or the Treasury acted in some way as a second opinion, second-guessing the professional judgments of members of the SFO. That would be wrong and is not what happens when it comes to blockbuster funding. No application for blockbuster funding has ever met with a refusal. That is a very important point to hold on to when it comes to the Government’s understanding of the reputational importance that the fight against economic crime has not just for the Government, but for the United Kingdom generally.

[Mark Field]

rose—

[The Solicitor General]

I give way to my right hon. Friend, who made that point.

[Mark Field]

The Solicitor General made a statement on the instances of refusal by the Treasury. I was going to come on to that. Has there been a refusal on the degree of blockbuster funding? It might not have been about the overall amount, but has there been a sense of haggling between the SFO and the Treasury over the amounts that should be given for particular cases?

[The Solicitor General]

My right hon. Friend invites me down a course that I am perhaps not fully qualified to talk about. There will of course have been discussions about the amounts, but at no time—this is again very important—has funding been a bar to the proper investigation of cases that are brought before the SFO and meet the criterion that the hon. Member for East Renfrewshire and the hon. Member for Strangford (Jim Shannon) set out. Previous Law Officers, including my right hon. and learned Friend the Member for Harborough, and current Law Officers have made it clear that funding issues will never be a bar to the prosecution of serious fraud in this country. That is why the reputation of the United Kingdom, to which organisations such as Transparency International have attested, is as one of the leaders in the field for the prosecution of economic crime.

In response to my earlier invention, my right hon. Friend the Member for Cities of London and Westminster conceded that his interesting ideas, which I very much hope will be fed into the Cabinet Office review of economic crime, must acknowledge the fact that we are dealing with not a regulatory but a prosecutorial authority. The tests, with which most hon. Members are familiar, of reasonable prospect of success and the public interest, as well as remembering the high standard of proof that needs to be reached, are vital when it comes to the criteria for an independent prosecutorial authority.

Right hon. and hon. Members will know that the Ministry of Justice is conducting a call for evidence on corporate responsibility. The Government have an excellent track record in that area, having supported and brought into force the Bribery Act 2010, particularly section 7, which created a failure to prevent bribery offence. A similar offence in the field of tax evasion is in the Criminal Finances Bill and the Government will seriously consider the outcome of the forthcoming consultation when it comes to failing to prevent economic crime.

I think the question of the attitude of the director to blockbuster funding has been adequately covered. I have described the system as inelegant, or imperfect. Although the director works within the system, at no point has he felt under any improper pressure from the Government, or the Treasury, on applications for funding. That is very important, bearing in mind the current director’s record in improving and enhancing the role of the SFO in our public life. In paying warm tribute to David Green, I also commend him for the creation of a chief operating officer post, which I think will go a long way to dealing with some of the human resources points raised by hon. Members.

On diversity, I am glad to say that when it comes to new starters at the SFO, 51% are female. I accept the diversity figures. However, before I sit down to allow the right hon. Member for East Ham to conclude the debate, I would say that it is tempting to seek to create a permanent cadre of staff at the SFO who might be able to build up expertise, but each large case stands very much on its own facts. The context of each case can vary widely. Therefore, the continuing need for flexibility in employing specialist agency staff who might be familiar with a particular scenario will not go away. I make no apology for the fact that flexibility of funding is important in terms of year-to-year demand, and employing and engaging agency staff can be of real benefit when it comes to the prosecution of specialist crime.

Crown Prosecution Service: Funding

Robert Buckland Excerpts

Wednesday 11th January 2017 Westminster Hall

[Karl Turner]

My hon. Friend is absolutely right. I will make that point myself. Excluding guilty pleas, conviction rates in magistrates courts and Crown courts are significantly down, despite the headline figure of an 80% conviction rate. I think the conviction rate in magistrates courts is about 50%, and in Crown courts it is about 25%, excluding guilty pleas. Since 2010, CPS staff numbers have fallen by a whopping 2,400. The CPS is suffering a brain drain and haemorrhaging experienced in-house lawyers, who leave for independent practice, or simply take the money and run.

On a serious note, I mentioned a caseworker bursting into tears in open court, clearly because of the pressure. I am told that the stress levels at the CPS are seriously high. Interestingly, a 2012 LawCare survey of the law profession revealed that more than 50% of the legal profession generally felt stressed, and that 19% were suffering from clinical depression, with more than one fifth of the profession suffering from mostly avoidable and preventable mental ill health. Stress at the CPS must be off the scale, particularly considering a recent Law Society survey in which 95% of respondents said that they were stressed at work.

Furthermore, in May 2016 the Public Accounts Committee inquiry found that

“The criminal justice system is close to breaking point.”

According to the National Audit Office report of March 2016, “Efficiency in the criminal justice system”, the number of cases outstanding in Crown courts had increased by 34% since 2013, and the waiting time for a Crown court case to be heard had increased from an average of 99 days to 134 days—an increase of about 35%.

In 2014-15, the Crown Prosecution Service spent £21.5 million preparing cases that were not heard, as the shadow Solicitor General, my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), helpfully said. What has happened to those cases and the £21.5 million? If memory serves, it costs just shy of £1,000 to prepare a case for Crown court—the CPS says that being trial-ready costs it about £1,000—and £21.5 million has been spent on preparing cases that got nowhere. One must assume that the evidential test had been passed, and that the CPS reviewing lawyer had determined that there was enough evidence—that is, on balance, more evidence than not, and a more than 50% chance of a successful prosecution—and that it was in the public interest to prosecute that case. Twenty-five million quid was spent on preparing cases that went nowhere. The Solicitor General might be able to correct me and clear the matter up, but I assume that that is down to cases coming to nothing. In the magistrates court or, worse still, the Crown court, perhaps the CPS lawyer just gives in for whatever reason. I do not know; I am guessing. I have no idea.

[The Solicitor General (Robert Buckland)]

I am anxious to answer as many questions as possible. In the Crown court, cracked and ineffective trials that have not gone ahead for prosecution reasons have, as a proportion, fallen to only 13.5%. That proportion of the total is falling; it is important to bear that in mind when looking at the overall context. I hope that helps the hon. Gentleman.

[Karl Turner]

That is a fair point, but nevertheless £21.5 million is a staggering amount of money to be spent by the CPS on preparing cases for trial only for them not to come to anything. It is easy to mention such figures, but we must have some thought and regard for the victims in the cases, who will be anxious for the case to make progress and to have their opportunity to give evidence for the prosecution, and desperate to find out what happens in the trial. In my submission, the victims suffer the most from all that. [Interruption.] I will not give way, because I have been notified by the Attorney General’s office that some Government Back Benchers have indicated a wish to make a speech in the debate.

Interestingly, Her Majesty’s Crown Prosecution Service inspectorate found that charging decisions were not correct in 18.2% of cases. There is clearly a problem between the police, who are either, in cases where they are authorised to charge a case without referring it to the CPS, authorising charges that they perhaps ought not to and probably not getting advice from a CPS lawyer, or—I say this carefully—perhaps not giving the full information to the CPS reviewing lawyer.

It would not be fair if I did not say that I have the highest possible regard for CPS lawyers individually. Prior to my election to the House, I prosecuted for a fair while from chambers, and I found that CPS caseworkers and lawyers had the highest professionalism. They were committed and extremely capable individuals who cared a great deal about the job they did. I pay tribute to each and every one of those CPS lawyers, who are under incredible pressure. I also pay tribute to the Director of Public Prosecutions, Alison Saunders, whom I know personally. When I was shadow Solicitor General and shadow Attorney General, I met her on a good number of occasions, and I know that the Solicitor General meets her regularly, too. I find the DPP very professional, extremely impressive and extremely committed to the task in hand. Unfortunately, she is under considerable pressure, but she does the very best in difficult circumstances.

The decisions that I referred to should have been reviewed by a Crown prosecutor prior to the charge being authorised, but—this is a staggering figure—in 38.4% of cases, decisions were not reviewed before the case was first heard at a magistrates court. Prior to being elected to this place, I practised as a junior. I was the one who prosecuted for the CPS. Before my next day in the magistrates court, if I was lucky—sometimes it was on the morning—my clerk would give me a big, black CPS bag containing files for the next morning. I would go home and prepare 10, 12 or 15 files for trial. It would often take me through the night. All night long, I would drink large quantities—[Interruption] —of coffee, the Solicitor General will be rather relieved to know.

I would go into the courtroom the following morning to find that witnesses were not there, police officers were not available, shift patterns had changed all of a sudden, reviewing lawyers were unavailable, and the caseworkers who were available on the end of the telephone were not in a position to make any decisions. The defence, who were keen to crack the case and put it to bed, might offer me a section 5 public order offence, rather than the section 4 offence that had been charged. I would read the file and think that whoever had authorised the section 4 charge had been optimistic, to say the least, and would want to drop it in preference for a section 5 charge, which would be easy enough to get home and get a conviction for, but no lawyer would be available for me to speak to.

That was then. I have not been in a magistrates court to prosecute—I have recently been in one in a pro bono matter—since 2010. Things were bad enough then, but they are getting worse. Things are much worse now than when I was on my feet in magistrates courts before I left Wilberforce chambers in April 2010.

Some 38.4% of cases are not reviewed before they first come before the magistrates court. In reality, that means that if the prosecuting lawyer has been really lucky, they open their file and they have their witnesses ready, they have interviewed them individually, they have checked that what the police say in their statement is what they are about to give as evidence and is correct, and they are ready to crack on. But then they find that things are not quite right. The charge is probably not correct, in truth. Whoever has reviewed it probably has not done so very well, or things have been kept from the reviewing lawyer that are particularly important to their charging decision. The fact that 38% of cases are not reviewed means that when a prosecuting lawyer goes in to prepare cases for trial, nearly half of them will not even have been reviewed by a CPS lawyer. They have one arm very definitely tied behind their back.

I have kept Members long enough, but given that Government Members will say that everything is great, I want to talk about what the profession says—what individuals at the Bar say about their experience in the CPS. It would not be right for me to name people, but this is from an experienced CPS prosecutor of 30 years’ call:

“CPS hesitate to instruct QCs to prosecute even murders. Very serious, high publicity, or multiple murders will get a Silk prosecuting; otherwise not. The decision tree is on the CPS website”,

which I helpfully have in front of me. He continues:

“As a fairly senior junior barrister…I have over the last 5 years prosecuted some 12 murder cases. I have done this as single counsel. About 8 of those have been prosecuting against QC and a junior. One was of two defendants both with QC”

and their respective juniors. The CPS provided him with a CPS lawyer—a higher court advocate—in that case. He was against two silks, effectively—two Queen’s counsel —with their own juniors. I am talking about a junior not of the level I was at prior to coming into this place but of probably 20 years’ call, who has prosecuted and defended for an awfully long time and has a great deal of experience of being junior to leading counsel, and of prosecuting a murder on his own without leading counsel.

That CPS prosecutor says that, in contrast, judges

“have some influence on Defence getting a QC, and will say in open court ‘This being a murder case the Defendant should’”—

the judge of course is right—

“‘have leading counsel’ and the legal aid is then likely to be extended to cover that.”

In that scenario of a double-handed case with two defendants, why should the victim, whose loved one has allegedly been murdered, have counsel bringing the case for the prosecution against two leading counsel and two junior counsel? How does the victim feel in that scenario?

I hope it will not annoy you too much, Mr Hanson, if I talk briefly about some other cases that have been mentioned to me.

--- Later in debate ---

[The Solicitor General (Robert Buckland)]

It is a great pleasure to serve under your chairmanship, Mr Hanson. I know, on a personal level, that you have had a long interest in these matters. I hope the debate has been of particular salience to you.

I thank the hon. Member for Kingston upon Hull East (Karl Turner), my former shadow. It has been nice to be together again in that sense. I have often thought that it would have been great if he and I had done a case against each other, but I was in another part of the country from him. When he was reminiscing—not quite eulogising—about his days carrying large amounts of files to the magistrates court, it took me back to my time back in the ’90s when I did precisely the same thing.

Here is the rub: times have changed. The hon. Gentleman will be glad to know that he does not now have to carry all those files. He can have it all on an iPad or a laptop, because of the Transforming Summary Justice initiative in the magistrates court. That means there is far more efficiency now in the use of digital technology in the court. If he came with me to CPS offices, he would be amazed that in magistrates court divisions now, paper is the exception, rather than the rule.

[Karl Turner]

It is all very good when it works, but people are reporting to me that, sadly, it does not work and often goes wrong—very badly wrong. Cases are vacated as a result of the very thing the Solicitor General mentions.

[The Solicitor General]

I am grateful to the hon. Gentleman for sharing some powerful anecdotes. I do not underplay anecdote; it certainly helped to inform me in my long career at the criminal Bar. However, the overall statistics tell the full story about what is happening across the system. There is no doubt that in the magistrates court, we are seeing an increase in efficiency. For example, guilty pleas at the first hearing in the magistrates court have increased as a proportion of total cases from just over 62% back in 2010 to over 70% in the past year. That is indicative—

[Karl Turner]

Of self-represented clients—litigants in person.

[The Solicitor General]

No, it is not. It is indicative of much better preparation by the prosecution of the cases, so that when defendants appear, they face a case that has been properly put together. That is also reflected by the increase in the overall guilty plea rate, which has gone up from just under 68% to 76.3%.

The hon. Member for Kingston upon Hull East talked about inefficiency. I am pleased to tell him that average hearings per case for both guilty pleas and trials have reduced. For trials heard in the magistrates court, we are now looking at just under three days, as opposed to three and a half days or more. Compliance with judges’ orders was always an issue when it came to the Crown Prosecution Service. Hon. Members will remember “mentions”—my hon. Friend the Member for Cheltenham (Alex Chalk) will know exactly what I am talking about. I am glad to say that we have seen an increase in timely compliance with judges’ orders in the Crown court in recent years. The rate has increased to more than 80% in the last two years.

[Amanda Solloway (Derby North) (Con)]

Does my hon. and learned Friend agree that we need an ongoing discussion about how the CPS can be more efficient and effective in its work and that that should continue?

[The Solicitor General]

My hon. Friend represents a city that has a Crown court and a magistrates court. It is an important court centre in the east midlands. I know from my visits to many regions across England and Wales that those conversations continue. There is local liaison and local discussion.

To respond to the point my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) made about accountability, joint performance management, which is what we are talking about, takes place in most areas and enables local agencies, whether the courts themselves or the defence community, to challenge the CPS when performance is not acceptable. Line managers individually assess prosecutors in the CPS, so accountability is an important part of this.

[Nick Thomas-Symonds]

The Solicitor General read out some of the statistics about magistrates courts. Of course we all want to see and welcome improvement, but is he as concerned as I am that the average number of days from an offence to completion in a magistrates court has increased from 155 days in the second quarter to 2015 to 162 in the second quarter of 2016?

[The Solicitor General]

The hon. Gentleman is right to make that point, but the point made by my hon. Friend the Member for Cheltenham is the right one. Here we are debating funding for the CPS and we are eliding two issues: the overall performance of the criminal justice system with the performance of one part of it. What is happening with the caseload, particularly in the Crown court, is that complexity is increasing. There has been a marked shift—the hon. Member for Torfaen (Nick Thomas-Symonds) will agree—away from the sort of volume cases that might take a day or two to quite complex and often difficult cases involving sexual allegations. I am told by many resident judges in the Crown court centres I visit that they now form the lion’s share of court work in the lists. That complexity is definitely resulting in more challenges for the Crown court.

I was glad to note that in recent years the Ministry of Justice has increased sitting days. That has certainly helped to reduce any backlog, but with respect to the hon. Gentleman, it would be a little unfair to lay the problems of delay completely at the door of the Crown Prosecution Service. Let us focus on the debate called by the hon. Member for Kingston upon Hull East on funding.

I accept, of course, that as a result of the tough decisions we had to make in 2010, expenditure was reduced. I pay tribute to the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who stewarded the CPS through that period. He did a remarkable job of delivering efficiency and providing leadership, which was then taken up by Alison Saunders, the Director of Public Prosecutions, who has rightly been praised here today. The hon. and learned Gentleman proved that the job could be done with a declining share of expenditure. When we look at the figures—my hon. Friend the Member for North East Hampshire (Mr Jayawardena) mentioned this—we see that performance and conviction rates have stayed remarkably steady through the years.

I am delighted to see on my visits to regional offices that there is smarter use of personnel within the CPS. I will give an example. North-east prosecutors will be able to work remotely—and do so—on south-east cases. That is a good emblematic example of how the CPS is making sure it uses all the resources available to it from whatever part of the country they come. That is certainly a boon to the south-east. I know it happens with prosecutors in Wales who are helping out in cases in London. That is another example of how we must not let regional boundaries become barriers to better working.

Digital case management has now made its way into the Crown court and is making a real difference. With my long years at the coalface of the criminal Bar, I was the first to be sceptical about digital and the use of IT. I have seen it before, but, believe you me, when I saw the pilots in Southwark, for example, I was delighted to see judges embracing that and telling me that the system was user friendly and starting to make a difference. Now that it has been rolled out across the country, it is starting to bear fruit.

Hon. Members talked about the challenges of the CPS and about charging decisions. It is right to say that the police have a role with regard to some charging decisions. There was a sea change, in that motoring offences were largely transferred to the police for decision making. That of course added to the reality that, with the increase in sexual offences, the CPS was now dealing with an entirely different caseload. There was not a like-for-like transition, and that complexity means extra challenges for CPS lawyers.

The hon. Member for Torfaen referred to the use of agency workers. I make no apology for that, because I think that using the independent Bar—whether to do agency work in the magistrates court or, vitally, to prosecute serious cases in the Crown court—is exactly what the Crown Prosecution Service should be doing. I am glad to say, having spoken with chief Crown prosecutors across the country, that it is increasingly using the experience and expertise of prosecutors to manage cases effectively within the system, so that we have the excellence in advocacy that we get from the independent Bar and the excellence in case management that we get from experienced CPS employees.

[Nick Thomas-Symonds]

I do not think that there would be any disagreement about the excellence of the advocacy of the independent Bar. I was simply making the point that when we see apparent cuts in the staffing budget, we have to look at the overall picture. We have to look at the temporary staff as well in adding things up to a single figure.

[The Solicitor General]

Again, I have spoken directly to many CPS staff, particularly in Wales; indeed, a lot of them used to instruct me. Some of the staff have been there for 30 years—the CPS’s retention rate is extraordinary. I think I get a bit of frankness from them, and they tell me that, in many respects, working practices have improved. The reduction in offices has helped them to work more smartly. They are now physically co-located in buildings with the police. They are working in ways that they did not dream were possible before.

[Alex Chalk]

Does my hon. and learned Friend the Solicitor General agree with me, and indeed the hon. Member for Kingston upon Hull East (Karl Turner), that if one is to use the independent Bar, it is also important to ensure that equality of arms is observed? There comes a point at which victims’ groups and victims’ families can rightly note the disparity that apparently exists between the seniority of counsel for the defence and the relatively junior status of counsel for the Crown.

[The Solicitor General]

My hon. Friend makes an important general point. Equality of arms is, of course, enshrined in article 6 of the European convention on human rights. It is something that we all understand as practitioners. It would be wrong of me to comment on individual cases, but I will say that where the Crown Prosecution Service is having to deal with complicated and complex issues relating to homicide, resource is never a bar to using the most experienced and senior counsel available, and that of course includes leading counsel.

Time is extremely short, and I want to give the hon. Member for Kingston upon Hull East a minute to respond, but let me say this. With regard to engagement, the most recent survey of employees of the CPS, of which two thirds took part, showed a welcome increase this year of 5%, right up to a figure of just over 59% telling us that morale in the CPS is good. They face significant challenges, but with increased numbers, particularly in the rape and serious sexual offences units, and an emphasis on the prosecution not just of volume cases but of serious sexual offences, conviction rates continue to stay steady and the numbers of people being brought to justice continue to rise, particularly in the important area of violence against women and girls. I could say much more, but I am mindful of the time.

Investigatory Powers Bill

Robert Buckland Excerpts

Ping Pong: House of Commons
Tuesday 15th November 2016 Commons Chamber

[The Solicitor General (Robert Buckland)]

I beg to move,

That this House disagrees with the Lords amendments 15B, 15C, 338B, 339B and 339C.

Two weeks’ ago, we considered Lords amendments to the Investigatory Powers Bill. In accepting unopposed all amendments that relate directly to the subject matter of the Bill, this House demonstrated the value we all place on legislative scrutiny in the other place, and recognised the many improvements made by their lordships to this important legislation. We welcome the spirit of cross-party co-operation on this crucial matter. I would like to put on record again my admiration for the approach taken by all parties in both Houses in contributing to this landmark Bill.

Together, we have created a world-leading framework for the use of investigatory powers by law enforcement and the security and intelligence agencies. We have strengthened the authorisation processes and safeguards around the use of those powers, and we have created a powerful new body that is responsible for the oversight of those powers.

During that debate, however, we also gave thorough and anxious consideration to the amendments tabled by Baroness Hollins, supported by others, which sought to use the Bill as a vehicle to change the law in relation to the regulation of the press. The amendments would introduce a presumption that a court should award costs against a publisher in cases of unlawful interception if it is not part of a recognised regulator, regardless of whether or not it won a case.

[Simon Hoare (North Dorset) (Con)]

Did my hon. and learned Friend see the article in The Times last week by the noble Lord Pannick? He is not necessarily always a friend to the Government on these matters, but he very clearly said that the Lords amendments should be rejected, that this was an important and well thought out Bill, and that the sooner we got on with it, the better.

[The Solicitor General]

I am very grateful to my hon. Friend. Lord Pannick played an important part in helping to refine other parts of the Bill, most notably on legal professional privilege. Lord Pannick said that we

“should reject the Lords’ attempt to hold such an important bill hostage on issues of press regulation that are far from central to the bill’s purposes.”

The Bill does not, and never was intended to, provide for the regulation of the press. It is about providing vital tools for our law enforcement and security and intelligence agencies. The Lords amendments we are considering today differ slightly from those we debated last time. The noble Lady revised her proposal to remove the link to clause 8 in order to avoid any risk that it could have an impact on the provisions already in the Bill. She also added a six-year sunset, which she suggests means that the change could be allowed to fall away after the process of reform of press self-regulation is complete. I thank the noble Lady for her efforts to minimise the collateral impact of her amendments and I recognise the goodwill she is showing in doing so, but I am afraid that the fundamental problem remains. The amendments are simply not appropriate at this time, or in this legislation.

The public consultation announced by the Secretary of State for Culture, Media and Sport, who is on the Front Bench today, speaks directly to the concerns of those supporting the amendments. It provides everyone—whether a publisher or a victim of phone hacking, a parliamentarian, journalist, police officer or a member of the public—with their rightful opportunity to contribute to the debate on the issue of press self-regulation, which affects each and every one of us in this country. The consultation document not only sets out the position but asks a series of questions to consultees. The questions are wide-ranging and allow a number of options to be explored. As is proper with a consultation, they allow consultees to express their views fully and to provide evidence to support their contentions. A number of options are set out. It is not simply a question of commencement, but whether part of section 40 should be commenced to afford protection to members of a recognised regulator, whether to not apply the particular provisions to publishers outside a recognised regulator, and to consider whether section 40 should be fully commenced, repealed or kept under review. This is an important consultation. It allows adequate time for people who are either well versed in the issues relating to the Leveson process, which occupied this House some years ago, or come new to the issue and want to have their say, bearing in mind the passage of time since the introduction of section 40 pursuant to the Crime and Courts Act 2013.

The Government have been absolutely clear that they recognise the very serious intrusion and anxiety suffered by victims of press misconduct.

[Pauline Latham (Mid Derbyshire) (Con)]

Will my hon. and learned Friend tell the House what the double lock for the most intrusive warrants will achieve, and why it is so very important?

[The Solicitor General]

My hon. Friend is right to remind the House about one of the truly innovative parts of the Bill. The mechanism proposed by Government was refined in Committee by representatives from other parties, as well as the Government. It allows for not only a politician, a Secretary of State, to make a decision about authorisation, but for that decision to be then reviewed by a judge who will apply principles of judicial review—not just Wednesbury unreasonableness, but principles relating to proportionality and human rights matters that are properly engaged in considering what we accept are serious intrusions when it comes to this type of warrantry.

The Bill is unprecedented and world leading. The double lock represents the Government’s commitment to maintaining the balance between the need for the security and intelligence agencies and other investigative agencies to be fleet of foot when it comes to investigating serious crime. It will ensure that, with judicial input, the interests of privacy and human rights are kept very much to the forefront of these decisions.

On press misconduct, we must ensure that victims have appropriate means of redress. The situation, however, is complex and the overall solution is far from clear. We must do our utmost to avoid unintended consequences of what I accept are well-intentioned actions.

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

The hon. and learned Gentleman was referred earlier by the hon. Member for North Dorset (Simon Hoare) to the words of Lord Pannick. Does the Minister also agree with Lord Pannick that there can be no doubt that the amendments are within the scope of the Bill, which was one of the Government’s previous objections?

[The Solicitor General]

The hon. and learned Lady will know that the interpretation of scope taken in the other place is somewhat different from the one both she and I understand in this place, having both served on the Public Bill Committee. I pay tribute to her for the considerable number of amendments she tabled in this House. I think we have to accept that the Lords’ interpretation allowed for the introduction of these amendments. The Government rightly had issues with some of the technical deficiencies in them. I paid tribute to the efforts made by Baroness Hollins to amend the provisions to meet some of the Government’s concerns. However—this is why we seek to reject the amendments—they have no place in a Bill that relates to the regulation of investigative powers. This is all about national security and dealing with crime, whether that be child abuse, trafficking, drug dealing or any other criminality we want to deal with in society. That is why the amendments are not only out of place but pre-empt the outcome of the consultation launched by my right hon. Friend the Secretary of State.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

Would my hon. and learned Friend not go further and say that a Bill on national security is precisely the wrong place for restrictions on the press, as it would make it look as if we were really trying to hit them hard?

[The Solicitor General]

My hon. Friend makes an important point. The Bill is all about balance and the importance the Executive attach to the way they seek to interfere or intrude into the private lives of individuals and to setting out clearly the criteria that must be met before they can act. It would be wrong to take any measure that sends a message that the Government wish to ride roughshod over the interests of individuals and freedom of speech. He knows that the consultation launched two weeks ago will deal with the very issues that have caused him concern over a number of years, although it would be wrong for me to pre-empt the outcome of that open process.

[Richard Drax (South Dorset) (Con)]

Does my hon. and learned Friend agree that phone hacking, which we hear so much about, particularly from those who support these press rules, is already a criminal offence for which people can go to jail? In addition, we have the libel laws, so anything the press does, in a major regard, is already very much covered.

--- Later in debate ---

[The Solicitor General]

My hon. Friend is absolutely right to remind us that where we have existing mechanisms —and the criminal law is, of course, there—they must be used. To be fair to both sides of the argument, the issues about redress of grievance and the mechanism of press regulation, which he knows from his experience as a journalist has existed for years, are important ones. I know that he would be as anxious as anybody in the House to make sure that, rather than the focus being on celebrities and the like, ordinary people who end up as victims—chiefly of inaccuracies reported in the media—have a reasonable and cost-effective means of redress. He is absolutely right, however, to talk about existing mechanisms and the criminal law, and of course the criminal law was used in a significant investigation by the Metropolitan police that resulted in several convictions.

[Damian Collins (Folkestone and Hythe) (Con)]

Does my hon. and learned Friend agree that, in respect of the consultation that the Secretary of State for Culture, Media and Sport has set out, we have to get the balance right between respecting the freedoms of the press and the rights of innocent people who have never sought publicity but who find themselves on the wrong side of an investigation and need a low-cost method of arbitration to bring their grievances forward?

[The Solicitor General]

My hon. Friend the Chair of the Culture, Media and Sport Committee puts it more succinctly than I did, and he is absolutely right about the balance to be struck and the need for ordinary people who might be the victims of misconduct to have access to meaningful redress of grievance, so I am grateful to him. Having been here in the previous Parliament, he and I will remember debating the Leveson process and the aftermath of the findings of Sir Brian Leveson.

Turning back to the consultation to which my hon. Friend referred, the Government have set out a clear timetable, and we have committed to responding to that consultation in a timely manner.

[Mr Jim Cunningham (Coventry South) (Lab)]

Who exactly is going to be consulted?

[The Solicitor General]

It is a public consultation and invites comment from all members of the public, from whatever corner of the country they might come and whatever interest—it might be no interest—they represent. I am grateful to the hon. Gentleman for giving me the opportunity to emphasise the important point that the Government would welcome as many responses as possible to the questions posed in the consultation—and not just responses but evidence to support the contentions made by those who take part.

[Damian Collins]

I should note that the Select Committee will be taking evidence from victims of phone hacking and press representatives and will makes its own representations to the Government through the consultation process.

[The Solicitor General]

The Government warmly welcome that approach. The work of the Select Committee—indeed all Select Committees—is invaluable and carries real weight, and the Government will consider it carefully when the consultation responses are assessed by the Secretary of State and those who serve her in the Department.

After the Government’s response, there will be ample opportunity for the House and the other place to consider and debate it in due course. As I said earlier, however, now is not the time to do so. The Bill, which we have all recognised is so important to our collective security, should not, with the greatest of respect, be used to force that debate.

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

I am glad to rise in support, once again, of these very important amendments. I believe that any member of the public who just heard the Solicitor General’s speech will be puzzled about the Government’s resistance to implementing an aspect of Leveson that they agreed to in principle some time ago.

Labour fully supports the Lords amendments and has consistently and genuinely called for the Leveson recommendations to be implemented in full. A new system of independent self-regulation was agreed by the three main political parties in 2013, following extensive consultation with victims of press intrusion, and Labour believes that the promises made to them should be honoured. If the best that the Government can come up with is that hoary old doctrine of unripe time—“It’s a good idea but not now”—they must be a little desperate. It is disappointing that we have to speak to the amendments yet again to get the Government to honour their agreements. It is a breach of the cross-party agreement, and breaks promises made by the House to the victims.

Lords amendment 15B would not be necessary had the Government fulfilled their stated commitment to implement section 40 of the Crime and Courts Act 2013, which they have promised to do innumerable times. Happily, the amendment goes further than section 40 and would not require ministerial approval, meaning that it would automatically implement section 40 in relation to phone hacking claims. This would restate the clear intention of Parliament as previously expressed in 2013. Ministers have talked about riding roughshod. The Society of Editors, the National Union of Journalists, with the backing of the TUC, and many others concerned with the freedom of the press, have said that there is the potential to ride roughshod over freedoms.

--- Later in debate ---

I agree that if a grievance is found to be justified, and the press is found to have got its facts wrong, it has a duty to publish that inaccuracy on its front page and to give it the same prominence as it gave to the original story on its inside pages or perhaps its front page. Any editor worth his salt should drag in the journalist responsible and say, “Enough is enough.” The free press: that is what we are here for and that is what I am fighting for. I totally back the Government in not supporting this Lords amendment.

[The Solicitor General]

We have heard many heartfelt contributions to this debate from Members on both sides of the House and I recognise the strength of feeling on this issue. Time does not permit me—

[Madam Deputy Speaker (Mrs Eleanor Laing)]

Order. I think the hon. and learned Gentleman is seeking the leave of the House to respond to the debate.

[The Solicitor General]

I certainly am. I seek the leave of the House to respond to the debate, but time does not permit me to say much more.

[Madam Deputy Speaker]

I congratulate the hon. and learned Gentleman on his excellent brevity.

Question put,

CPS and Disability Hate Crime

Robert Buckland Excerpts

Tuesday 8th November 2016 Westminster Hall

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve under your chairmanship, Mr Bone. I congratulate the hon. Member for Bootle (Peter Dowd) on securing the debate; I am profoundly grateful to him. He and others who have taken part will know that the issue of disability hate crime has been close to my heart not just as Solicitor General but as a Back-Bench Member of Parliament, and indeed as a parent, for a number of years.

The hon. Member for North Ayrshire and Arran (Patricia Gibson) made particularly apposite remarks about the fact that many people in our society just do not know somebody with a disability. That lack of understanding and awareness lies at the heart of some of the attitudes that we see towards disability. It is too big a picture to be laid at the feet of any particular Government or of an alleged ideological approach to austerity, which I utterly reject. It is a long-term societal issue, and only in recent years have all of us, irrespective of party, started to wake up to it and put ourselves in the shoes of individuals with disabilities.

I reiterate the Government’s co-ordinated and cross-departmental approach to the issue. I am particularly delighted to welcome the Minister for Disabled People, Health and Work, whose presence at this Westminster Hall debate eloquently represents her commitment to the issue. We have met about it, and we will continue to meet and, more importantly, to take co-ordinated action to ensure that all relevant parts of Government do everything they can to tackle this scourge, because scourge it is.

I am equally grateful to my right hon. Friend the Member for Forest of Dean (Mr Harper), who did so much as Minister for Disabled People to advance the cause, paying attention to the sort of detail that he has raised today. I hope to be able to answer his questions, and indeed those of the hon. Member for Bootle. I will seek to do so in the course of my remarks.

As I said, it is important to put ourselves in the shoes of a person with disability. That person faces three things. First, they sometimes lack the awareness that they have been or continue to be the victim of a crime, because for so many people with disabilities it has become normal and part of their way of life—it is just something that they accept. We know that is not good enough. Secondly, when that lack of awareness ends and a person starts to understand that they are a victim, what do they do? Who will listen to them and help them to report the crime? Thirdly, when that crime is reported, how do the authorities deal with it? Those are the three stages of the problem that need to be understood. It is clear that we need to do more to support people with disabilities at every stage.

I am grateful to the hon. Members for Strangford (Jim Shannon) and for South Down (Ms Ritchie) for raising the Northern Ireland experience. We have discussed before the Leonard Cheshire initiative, which puts advocacy at the heart of the project. Advocacy for people with disabilities will be the key to unlocking many of the issues that have come up, and we are seeing that approach taken widely in parts of England, Wales and Scotland. In my own area, Swindon, I am lucky to have the Swindon Advocacy Movement, an organisation that empowers people with disability to understand their rights and entitlements and helps them if they have been the victim of crime or abuse. It is all about a move away from doing things to or for people with disabilities and towards helping people with disabilities to help themselves and empowering them to become part of mainstream society.

The hon. Member for North Ayrshire and Arran was right to remind us that only 20 years ago, before the Disability Discrimination Act 1995, which was passed by a Conservative Government—I am proud of that—people with disabilities were facing a kind of Jim Crow situation. They were not able to access mainstream life and were being excluded—not only physically excluded from premises, but excluded, in a societal way, from mainstream life.

Therein lies one of the problems. One of the perceptions we need to challenge at all times relates to what disability means to people with a disability themselves. We sometimes use the word “vulnerable” a bit carelessly; there is an assumption that just because somebody has a disability then they are automatically vulnerable is not helpful to them. I think a person with a disability would say to us that there are times when they end up in situations that make them more vulnerable than others, but that does not mean that they are vulnerable at all times. Once one starts to make that sort of cosy assumption, the wrong sort of conclusions are reached. For example, people start to ask questions about why people with disabilities go out in public. Why do they go nightclubbing or shopping? Why do they do all these things that put them in danger? That is the wrong approach.

[Nick Thomas-Symonds]

I agree entirely with the point that the Solicitor General is making. Nevertheless, does he accept that there can be situations in which vulnerable people are taken advantage of by confidence tricksters? We should focus on that as well.

[The Solicitor General]

I am extremely grateful to the hon. Gentleman for that point. I welcome him warmly to his position and congratulate him on attaining it. It is a pleasure to work with him. He is quite right to talk about “mate crime”. Perhaps such examples highlight one of the deficiencies and inadequacies of using a phrase such as “hate crime” to describe the full panoply of crimes committed against people with disabilities. Mate crime is an insidious way in which perpetrators gain the confidence of often isolated and sometimes rather lonely people, perhaps with a learning disability such as autism, or another disability, and, using the trust they have built up, proceed to abuse it, very often in the form of financial crime, such as fraud, or worse—violence and sexual crime are also covered by the definition of mate crime. That is worse than confidence tricksters; it is an abuse of trust. In my mind, that makes the crime even more serious.

I am grateful to my right hon. and hon. Friends and Opposition Members for having raised some of the important figures and statistics relating to the increase in the number of reported disability hate crimes and, indeed, prosecutions for those offences. There has also been an increase in the use of the sentence uplifts that are available to judges under section 146 of the Criminal Justice Act 2003, from just over 5% of cases in 2014-15 to 11% of cases in 2015-16. We are coming from a low base, but that is going in the right direction.

The hon. Member for Torfaen (Nick Thomas-Symonds) asked about the recording of applications in which there has not been an uplift. I hear what he says, but the difficulty is that the Crown Prosecution Service is currently recording a vast number of indices through the flagging system, and it is difficult for every area of the CPS to record information with precision and then translate it in a way that makes it readily available to people like me. I hear what he says and will certainly ask whether it would be feasible, but I have to put that caveat on his request. It is clear to me that having more data is always useful, but it is then a question of how they are to be used and understood. We need to step back from that to a more fundamental position on training and awareness.

[Jim Shannon]

I indicated in my contribution that the figure for prosecutions was down in the past year, and asked whether that was because the police were not giving the issue the focus and priority that they should. If the Minister can answer that now, that would be good, but if not I am happy to wait for a response. Is disability hate crime a priority for the police?

[The Solicitor General]

I can give the hon. Gentleman the assurance he seeks. On as many of the questions he asked as possible, I shall outline the measures that are being taken. The mandated package of training—to which I think he referred in a question to me in the main Chamber some months ago—has been delivered through a classroom-based approach, as opposed to using the internet. That is very important. It was a mandated package, so it had to be delivered to all prosecutors, and it was delivered between September last year and January this year. In particular, it incorporated the victim’s perspective and provided support on identifying evidence of hostility in order to obtain those important recorded sentencing uplifts.

I parenthesise a moment by reminding Members that section 146 is not the end of the story when it comes to how judges should sentence for offences with a disability element. There are guidelines that allow judges to look at the situation or vulnerability of the victim and their characteristics and take that into account when assessing the overall length of sentence. That message, too, has gone out loudly and clearly to all those involved in the prosecution of crime.

Members should reflect on where we hit a difficulty—perhaps we can debate this in future—which is on how to approach sentencing when it comes to people with invisible, not hidden, disability. I think in particular of learning disability and autism. Far too often, the perpetrator is able to say, “Well, I didn’t know he was autistic.” That puts the judge in a very difficult position, because they then do not have evidence of either hostility or some sort of motivational offence, or that the perpetrator even knew about the victim’s characteristics. We are getting into the debate about the eggshell skull theory, with which the hon. Member for Torfaen will be familiar, but it is a debate we need to have when it comes to how adequately we protect and support people with invisible disabilities.

I turn to the other questions that Members asked. I am glad to say that the hate crime assurance scheme is happening, and that live files are being tracked as a result. That is helping to support the quality of casework, with real-time scrutiny as cases progress.

As we have seen, that scheme is having results with an increased number of sentencing uplifts being applied. It also checks all finalised hate crime cases, so that we can identify best practice and any lessons that can be learned. In other words, and to answer the point made by the hon. Member for Torfaen, the failed applications are being looked at and that is a vital part of how we can improve our approach.

Members are aware, of course, of the 13-week consultation published by the Crown Prosecution Service in October, which sets out the approach taken by the CPS to such crimes. A plain English version of that consultation is available too, which is particularly important for people with disabilities themselves, so that they can have their voice heard. Also, the legal guidance for prosecutors will be updated and published at the same time as the consultation response, so work is ongoing.

The statement that has been provided by the CPS has been developed with the involvement of interested groups and community representatives, who have highlighted the social model of disability. That model suggests that the prejudice, discrimination and social exclusion experienced by many disabled people is not the inevitable result of their condition but instead stems from the various barriers that they experience daily and that hon. Members have talked about in this debate. That social model is the basis on which the CPS understands, dismantles and reduces the effects of those barriers, as far as we are able to, leading to improved safety and security, access to mainstream life and indeed work, where appropriate, for people with disabilities.

Last month, the CPS also published two guides on the recognition and reporting of hate crimes for individuals and agencies who might be the first to hear about a hate incident. Those guides are intended to increase public confidence and in turn improve reporting levels, so that they more accurately reflect the experience that we know people have in their communities.

We have already discussed such third-party reporting, and my hon. Friend the Member for South Ribble (Seema Kennedy) gave an example of it. I was delighted to meet the organisation she referred to when I visited CPS Manchester earlier this year. Indeed, I pay tribute to such organisations, including the one in my constituency that I mentioned earlier, and to campaigners such as Stephen Brookes MBE, who is from Blackpool and who has long championed the issue of third-party reporting, showing that where it is done well it really makes a difference for people with disabilities. My message to hon. Members, therefore, is that if, for whatever reason, they do not have third-party reporting in their community, they should ask why and see whether such provision can be improved.

The hon. Member for Bootle also asked about senior management. I am happy to tell him that I will be in Liverpool next week, at the CPS senior management conference, and he can bet his bottom dollar that I will raise the issue of disability hate crime in his home town. It is important that that is not a one-off but another example of how law officers, the Director of Public Prosecutions and senior leaders can set a good example.

On judicial meetings and the links that we have with the judiciary and the DPP, the issues that we are discussing are raised on a regular and systematic basis. Although sentencing is, of course, an independent function, we can ensure that the policy context is fully understood by those responsible for sentencing.

My right hon. Friend the Member for Forest of Dean mentioned education, and the Government have allocated—as part of our hate crime action plan—important funding to help to equip teachers to have what can sometimes be difficult but important conversations with young people, by funding programmes through organisations such as the Anne Frank Trust UK and Streetwise. Again, the training that teachers receive through those programmes will be classroom-based and of real use.

My right hon. Friend also mentioned social media. The Government are clear: whether online or offline, crime is crime and the CPS and the police will follow the evidence wherever it leads and however difficult it is to follow it. An unfortunate perception has arisen that, somehow, something online is more difficult to trace. I just do not accept that; there is a clear evidence chain there. All of us know that removing things from the internet is not as easy as it might seem—thank goodness, in the context of such offending—and the message must go out loud and clear that online abusers will be detected and prosecuted, wherever it is appropriate to do so.

I will deal with the points that have been made about the Law Commission. Its report is an important one, which I have read and considered myself. I am happy to say that, although the Government have not come to a fixed conclusion about the extension of the aggravated offences to cover all five protected characteristics, that matter is still very much under review. As a prosecutor myself in my former life, and having used such offences since they were introduced in the late 1990s, I know that they had a transformational effect and therefore I understand their power. In the meantime, however, it is very much a question of the police, the CPS and all agencies using the powers that they have more effectively.

Hon. Members mentioned the cross-Government hate crime action plan, which includes a proper emphasis on increasing awareness of and support for victims. It is clear that if a person with a disability feels that they will be taken seriously and listened to, they are more likely to come forward.

I go back to the point I made at the beginning of my speech about the importance of perception from the viewpoint of another person. We want to increase the reporting of hate crime by improving the reporting process itself, for disabled people and for people with other protected characteristics.

The CPS has played an important part in contributing to that hate crime action plan. It has made a number of commitments, which will be delivered by 2020, and I will continue—as a law officer—to work with the CPS, to ensure that perpetrators are punished and to publicise successful prosecutions, because that will create confidence among the members of a community that when hate crime is reported, action will be taken.

New guidance will be produced by the CPS—

[Mr Peter Bone (in the Chair)]

Order. I am sorry to interrupt the Solicitor General’s 20-minute speech, but Members will be aware that it is now a courtesy to allow the mover of the motion to wind up the debate.

[The Solicitor General]

I am very grateful to you, Mr Bone, for that clarification. I will conclude by saying that for far too long people with disabilities have accepted being treated as second-class citizens. That is why I commend the work of the CPS in tackling the scourge of hate crime and I again thank the hon. Member for Bootle for raising this important issue.

Oral Answers to Questions

Robert Buckland Excerpts

Thursday 21st July 2016 Commons Chamber

[Andrew Gwynne (Denton and Reddish) (Lab)]

7. What steps the Government is taking to increase the number of prosecutions for female genital mutilation.

[The Solicitor General (Robert Buckland)]

The Government significantly strengthened the law via amendments to the Serious Crime Act 2015 to improve protection of victims through lifelong anonymity and to break down barriers to prosecution. The introduction of a mandatory reporting duty for front-line professionals to identify FGM cases of girls under 18 further improves opportunities for safeguarding and prosecution.

[Lilian Greenwood]

At the age of 11, Valentine Nkoyo was forced to go through female genital mutilation. Nineteen years later she set up the Mojatu Foundation, a social enterprise in my constituency, to use her own experience to raise awareness of FGM, help protect children at risk in the UK and support survivors. Mojatu’s current project aims to create a network of media-trained community champions to help tackle the issues affecting women and girls who are at risk or living with the consequences of FGM, to increase self-reporting. What engagement has the Solicitor General had with community organisations such as Mojatu to address the low level of prosecutions for FGM?

[The Solicitor General]

I pay tribute to the work of that community organisation and many others in the network who are fighting the scourge of FGM. The hon. Lady will be pleased to note that I and other members of the Government have regular engagement with community groups. The Department of Health has provided £4 million worth of funding over the past three years in order, among other things, to enhance community engagement so that awareness can be spread and victims need not suffer in silence.

[Vicky Foxcroft]

The lack of services to support victims of female genital mutilation is often seen as a reason why so many cases are left unreported. What effect will cuts of 24% to the Crown Prosecution Service have on the reporting of FGM cases?

[The Solicitor General]

May I reassure the hon. Lady that the Crown Prosecution Service places great importance upon the need to properly investigate and prosecute, where appropriate, crimes of FGM? It was regrettable that in the years prior to 2010 not one single prosecution occurred. Cultural and other obstacles have prevented the effective investigation and prosecution of this scourge. The work of community groups and the resolution of the Government mean that that is gradually changing for the better.

[Andrew Gwynne (Denton and Reddish) (Lab)]

The Solicitor General will no doubt be aware of the European Commission guidelines on action against female genital mutilation. Notwithstanding the vote on 23 June for the UK to leave the European Union, can the Minister say whether it is still the intention of the Government to accept into British law the recommendations of the European Commission’s report?

[The Solicitor General]

With regard to the specifics, that matter needs to be considered carefully, and I will take that away with me. However, on the general principles laid out in that report, there is no doubt whatever that this Government remain fully committed to making sure that FGM is properly explained, properly challenged and properly dealt with, whether that is by prosecution, awareness in the community or other preventive measures.

[Mr Gregory Campbell (East Londonderry) (DUP)]

What steps are the Government taking to ensure that, in communities where, on occasions, a blind eye is turned to this obscenity, people understand that the law will be upheld and that the 130,000-odd young females who are affected will be protected in future, as this will affect others?

[The Solicitor General]

The hon. Gentleman is right to reiterate that community engagement and community involvement will be key in making more progress on this area. I am glad to see that, certainly in England, the Department for Education has £2.25 million of funding to invest in awareness of and education about this issue, and I think that will also have a beneficial effect.

[Stephen Kinnock (Aberavon) (Lab)]

3. What his role is in assessing the steps that will be required to separate EU law from domestic law.

--- Later in debate ---

[Andrew Stephenson (Pendle) (Con)]

10. What recent discussions he has had with the Director of Public Prosecutions on the prosecution of hate crime.

[The Solicitor General (Robert Buckland)]

I discuss this matter regularly with the DPP, and the Government will publish their hate crime strategy very shortly.

[Bob Blackman]

I thank my hon. and learned Friend for his answer. Given the terrible terrorist atrocities in Nice, Paris and, recently, Germany, many people in this country are fearful that because of their religion or the colour of their skin, they will be the subject of hate crime. What assurances can my hon. and learned Friend give to those people that we will prosecute, to the full extent of the law, anyone involved in hate crime?

[The Solicitor General]

I pay tribute to my hon. Friend for the community work he does in his constituency. Hate crime of any kind, whether it is on the grounds of disability, race, religion, sexual orientation or transgender identity, has absolutely no place in our society. We are utterly committed to tackling hate crime.

[Andrew Stephenson]

A Member of the other place recently received a vile racist letter containing white powder, as did a number of mosques and Islamic centres representing a large Pakistani heritage community in Pendle. The long-term rise in Islamophobia is a serious concern. Will my hon. and learned Friend join me in condemning these racist incidents and advise me whether he believes that the separate recording of Islamophobia as a hate crime is likely to help to bring about successful prosecutions?

[The Solicitor General]

The incident that my hon. Friend describes is despicable and shameful, and we must stand together against such hate crime and ensure that it is stamped out. Religious hate crime has been recorded separately since April of this year, at the request of the Prime Minister in her former role as Home Secretary. That will give us a greater understanding of the nature of hate crime.

[Christina Rees (Neath) (Lab/Co-op)]

Reports of hate crimes rose exponentially—by 57%—following Brexit. Is the Solicitor General confident that the Crown Prosecution Service is adequately resourced to deal effectively with these reports and support victims?

[The Solicitor General]

The hon. Lady is right to note the alarming spike in incidents of hate crime that surrounded the recent referendum and the weeks subsequent to it. I reassure her that the CPS remains absolutely committed to prosecuting all types of such crime, which, frankly, have no place in our society.

[Paula Sherriff (Dewsbury) (Lab)]

Three weeks ago, I asked the former Prime Minister, and he agreed, to look into setting up a cross-party commission on hate crime following a sharp increase, as yesterday’s statistics revealed. Can the Solicitor General assure the House that that will be achieved as a priority? Will he offer his full support to my West Yorkshire cross-party initiative to tackle these terrible acts?

[The Solicitor General]

I pay tribute to the hon. Lady, who speaks with eloquence and passion on these issues. Of course, I give her my full support with regard to the cross-party initiative in West Yorkshire. The former Prime Minister was right to emphasise that it is up to all of us, whichever side of politics we come from, to come together to tackle this scourge. We know what it can lead to, and therefore we have to stamp it out before it becomes something even more vile.

The Minister for Women and Equalities was asked—

Oral Answers to Questions

Robert Buckland Excerpts

Thursday 26th May 2016 Commons Chamber

[Diana Johnson (Kingston upon Hull North) (Lab)]

13. What assessment he has made of reasons for variations between police force areas in conviction rates for rape offences.

[The Solicitor General (Robert Buckland)]

There are a number of factors at various stages that are likely to have an impact on conviction rates for rape, but the Crown Prosecution Service is committed to improving the rate by working closely with partners in all police force areas. To provide the consistency of approach that is necessary, networks of violence against women and girls co-ordinators have been established.

[Cat Smith]

CPS national guidance suggests that improvements have been made through the appointment of rape specialist prosecutors. However, their success is entirely dependent on the evidence referred to them in the first place, as one of my constituents, who was raped while away at university, found to her distress. Will the Solicitor General comment on any link between reported offences of rape that are never referred to CPS rape specialist lawyers for a decision to prosecute and the conviction rates for rape in police force areas?

[The Solicitor General]

I am grateful to the hon. Lady, and I listened with some concern to the case she cited. I am glad to say that in her area—the north-west—the area rape and serious sexual offences unit has been generating an improvement in the conviction rate, which has gone up by almost 10% in the last year. However, she is right to talk about the earlier stages, and the co-ordination I mentioned is all about early investigative help, which should make the experience for victims better. Experience shows that attrition rates are far too high.

[Diana Johnson]

So why does the Solicitor General think there is a difference between rates in police forces, with 35% being one of the lowest rates and 80% the highest? What specifically can the CPS do?

[The Solicitor General]

The hon. Lady is right to refer to those regional variations, which are concerning. I am glad to see a strong commitment to a greater national approach to this issue. That is why the setting up of RASSO units in every area is vital. The CPS has recruited a further 102 specialist prosecutors, with a further phase of recruitment due to take place, which will help to drive conviction rates up.

[Jim Shannon (Strangford) (DUP)]

In Northern Ireland, there were more than 28,000 incidents with a domestic motivation in 2014-15, and there were 2,734 sexual offences, including 737 cases of rape. Not only are conviction rates too low across the UK, but the number of incidents is still too high, particularly considering that many victims of domestic violence do not come forward. What steps are the Government taking to reduce the number of offences? Have they considered an education programme for boys and girls in school?

[The Solicitor General]

I am grateful, as always, to the hon. Gentleman. I am happy to say that, in England and Wales, the overall number of cases being brought—not just of rape but of associated violence and sexual abuse in a domestic setting—continues to increase, which means justice for thousands more victims year on year.

[Helen Jones (Warrington North) (Lab)]

What steps has the hon. and learned Gentleman taken to ensure that the Crown Prosecution Service discusses with the police the type of evidence that needs to be on the file sent to it to secure a conviction? Has he reviewed with the Home Office police forces that are accused of putting too many rape cases in the “no crime” category without investigation?

[The Solicitor General]

To answer the hon. Lady’s latter point first, that is obviously an operational matter for the police, but the general principles and policy issues arising from it are important. That is why the Attorney General and I take great interest in the important work of the RASSO units—the specialist prosecutors—that work with the police at an early stage to identify the sort of evidence that is needed to secure convictions. The hon. Lady is absolutely right to raise that point.

[Ian C. Lucas (Wrexham) (Lab)]

2. What steps the Serious Fraud Office is taking to help prevent serious fraud and other economic crimes.

--- Later in debate ---

[Dr James Davies (Vale of Clwyd) (Con)]

11. What recent steps he has taken to promote (a) public legal education and (b) the provision of pro bono legal services.

[The Solicitor General (Robert Buckland)]

As Government pro bono champions, the Attorney General and I continue to support, through our co-ordinating committees, a number of projects that reinforce how important pro bono work and public legal information are, not just domestically but internationally.

[Bob Blackman]

Clearly the actions of certain lawyers bring the profession into disrepute, but thousands of people across the country achieve justice through pro bono work. Does my hon. and learned Friend agree that lawyers who give their time free of charge are helping justice in this country?

[The Solicitor General]

In the last financial year, £601 million-worth of work was provided pro bono by lawyers in private practice—that is, barristers, solicitors and legal executives. They recognise that the time they give makes a real difference to people who would otherwise be denied access to justice.

[Maggie Throup]

Small community-based charities that provide services such as community transport, luncheon clubs and after-school activities play an important role in our society, but they often operate under immense financial pressure. What is my hon. and learned Friend doing to encourage more law firms to provide pro bono legal services to those small charities, to help them cut their running costs and focus their resources on making a difference in our communities?

[The Solicitor General]

My hon. Friend raises an interesting point. It is right to pay tribute to the existing pro bono commitment by the legal professions, working alongside the voluntary sector, to providing trustee support and other advice to a range of local charities in both her constituency and mine, and in many other communities the length and breadth of the country.

[Mims Davies]

Does the Solicitor General believe that public legal understanding has caught up with the legal changes in relation to sexting and revenge pornography?

[The Solicitor General]

Public legal education has an invaluable role to play. I have seen at first hand in schools how the Citizenship Foundation, with the support of lawyers, runs sessions on issues such as social media and the law. The particular issue that my hon. Friend raises is extremely sensitive and important to young people in particular, and I believe that running the appropriate courses can teach them about the consequences of such criminal acts.

[Michael Tomlinson]

The legal profession may have its detractors, but one of its finest traditions is that lawyers are encouraged to undertake pro bono work. What more can be done to take pro bono work into our schools, both in Dorset and across the country?

[The Solicitor General]

I am grateful to my hon. Friend, who, as a barrister of some distinction in the south-west, speaks from experience about his work and the role of pro bono in the profession of which he and I are part. I urge him to liaise with law firms in his constituency, which he will know well, to spread that work through schools and colleges in his part of Dorset and the wider area.

[Mr Speaker]

I am sure that the hon. Member for Mid Dorset and North Poole (Michael Tomlinson) will put that tribute on his website in a matter of minutes.

[Dr James Davies]

I thank the Solicitor General for his replies on this topic. How can the Government further help the efforts of charities such as LawWorks, a pro bono legal advice service supported by the Law Society that targets the most needy and has offices across the UK?

[The Solicitor General]

My hon. Friend is right to mention LawWorks, which has been an active member of the pro bono co-ordinating committee for several years. Since October 2014, the Ministry of Justice has provided funding for the litigant in person support strategy, which is designed to help third sector organisations deliver increased support to litigants in person. I am sure that he will put that on his website.

[Rob Marris (Wolverhampton South West) (Lab)]

I have done a fair bit of pro bono legal work in my time as well. It is often a substitute for inadequate access to legal aid, which was greatly cut under the last Government. Will this Government consider using interest on client account for legal aid? Each solicitor in private practice has to have a client account in which the client’s money is kept separately and earns interest. In some jurisdictions, such interest is used to fund legal aid. The Government should consider that for England.

[The Solicitor General]

I appreciated the constructive part of the hon. Gentleman’s question, and my colleagues in the Ministry of Justice should look at the idea. I am cautious about compulsion, however, because one of the great things about pro bono is that it is voluntary. It is all very well for him to criticise the Government for cuts to legal aid, but he will remember, because he was a Member of Parliament at the time, the so-called Access to Justice Act 1999, when a Labour Government destroyed civil legal aid, so I will not take lectures from the Labour party.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I have always been a supporter of pro bono work—both while I was a practising barrister, before I entered this House, and since—but does the Solicitor General agree that because pro bono work is voluntary, as he said in his last answer, that is precisely why it could never be used as a policy solution to sort out the Government’s cuts to legal aid?

[The Solicitor General]

As the hon. Gentleman well knows, neither the Attorney General nor I—nor, indeed, the Government—advocates pro bono as a substitute. It is an adjunct to legal aid, and it always should be.

[Mr David Hanson (Delyn) (Lab)]

Nobody will deny the worth of pro bono, and everybody will welcome it, but as my hon. Friend the Member for Wolverhampton South West (Rob Marris) said, it is no substitute for access to justice. So that we know which areas get that justice, will the Solicitor General agree to publish a list of how many hours of pro bono are available in each geographical area? That would help us to know whether there is access to justice.

[The Solicitor General]

With respect to everybody who works in the pro bono area, I do not want to detract from the important work of pro bono by pretending that it is somehow a legal aid service. It is not; it is voluntary. It is a vital part of what it is to be a lawyer. Not only does it provide a benefit for those whom it serves, but it is an important part of the career development of lawyers. The Conservative party is committed to funding our legal services, and we are spending just short of £2 billion a year on legal aid. It sits very ill for the Labour party to lecture us about the amount we spend on legal aid when it merrily cut legal aid while in office.

[Karl Turner (Kingston upon Hull East) (Lab)]

I declare an interest in that my wife is a part-time tribunal judge and legal aid lawyer.

We all praise the work of lawyers who give up their time to offer advice and assistance, just as we praise law centres and citizens advice bureaux, but does the Minister agree that those individuals and organisations cannot possibly fill the gap left by the Legal Aid, Sentencing and Punishment of Offenders Act 2012? In April 2010, more than 470,000 people received assistance on social welfare matters. Just 12 months after LASPO, the number was down to 53,000—a drop of 90%. Will the Minister please urge the Justice Secretary to bring forward the promised review of LASPO?

[The Solicitor General]

I hear what the hon. Gentleman says. Again, although I think it is absolutely right for us to celebrate the work of barristers, solicitors and legal executives in providing pro bono work and public legal education, this country still enjoys one of the most generous and widespread legal aid systems in the world. That is something of which we should be proud and which we should celebrate. It is absolutely wrong for the Labour party to seek to take the moral high ground given that I watched it cut the legal aid system during its 13 years in power.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

5. What assessment he has made of reasons for variations between police force areas in conviction rates for disability hate crimes.

[The Solicitor General (Robert Buckland)]

A number of factors are likely to have an impact on the variation in conviction rates for disability hate crimes. I am actively considering them, and I believe that the best practice to provide consistency of approach is the network of hate crime co-ordinators that the Crown Prosecution Service has established, which includes a focus on the important issue of disability hate crime.

[Debbie Abrahams]

I thank the Solicitor General for his response, but there were an estimated 62,000 disability hate crimes in 2013, only 574 of which resulted in prosecution. As he said, there was huge regional variation in the prosecution rate. Is he as concerned as I am about that, and will he be a bit more specific about how he will address it to ensure that convictions for disability hate crime do not depend on where people live?

[The Solicitor General]

I am extremely grateful to the hon. Lady, who will know that I have a long-standing interest in the issue. In fact, I travelled to her region, the north-west, some months ago and met a local advocacy group based in Preston that deals with third-party reporting. Naturally, a lot of people with disabilities do not have the confidence to go straight to the police. I believe that through third-party reporting mechanisms we can bridge the gap between the 62,000 cases she mentioned and the small number of prosecutions. We have to improve that rate.

[Keith Vaz (Leicester East) (Lab)]

These are terrible crimes. One of the problems is inconsistency between police areas. Does the Solicitor General agree that an important role for the College of Policing is to make sure standards are consistent throughout the country?

[The Solicitor General]

The right hon. Gentleman is correct in his assumption. There was an invaluable round table at the national College of Policing in September, which I attended and spoke at, involving regional leads from all parts of the country. It was designed precisely to deal with hate crime, and disability hate crime in particular. By sharing best practice, such as the third-party reporting mechanisms I mentioned in my answer to the previous question, we can improve and raise the rates in relation not just to hate crime but to all crimes committed against people with disabilities.

Investigatory Powers Bill (Fifteenth sitting)

Robert Buckland Excerpts

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

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve again under your chairmanship, Ms Dorries. I have listened carefully to what the hon. and learned Gentleman and others have said about their concerns regarding the provisions, but may I reassure him and put to bed the notion that somehow this is a back door or a blank cheque to allow the authorities to do what they like when it comes to interference with the privacy of individuals? Far from it. I will explain as far as I can the purpose of the type of warrantry, particularly the national security notice, that we are talking about, and indeed the technical proficiency provisions as well.

An example of the type of support that might be required would be the provision of services or facilities to help the intelligence agencies in safeguarding the security of their personnel and operations. A notice might typically require a communications service provider to provide services to support secure communications by the security and intelligence agencies—for example, by arranging for a communication to travel via a particular route in order to improve security. A notice may additionally require the confidential provision of services to the security and intelligence agencies within the communications service providers, such as by maintaining a pool of trusted staff for the management and maintenance of sensitive communications services. I hope that gives the hon. and learned Gentleman some insight into what we are talking about here.

[Keir Starmer]

I am grateful for that indication, but I am not sure why that is an argument for not subjecting what could be a wide-ranging power to the double-lock mechanism, which has been the preferred safeguard for such powers in the Bill.

[The Solicitor General]

There are clear reasons for not going down that route. We are talking about the preparatory stage as opposed to the stage of interference with privacy. If the Government’s position was that there was a loophole—a gateway—to allow such interference, the hon. and learned Gentleman’s argument would have real strength, but that is far from the case. This is all about the preparatory stages—the necessary stages that need to be taken by communications service providers before we get to the application for what we all accept is an intrusion.

I am afraid I cannot share with hon. Members their analysis that we need a “now and forever” definition of national security in law. There is a good reason why national security is not defined in statute. Any attempt to define it in the Bill runs a real risk of restricting the ability of this country to respond to constantly evolving and unpredictable threats. It is vital that legislation does not, however unintentionally, constrain the ability of our security and intelligence agencies to protect this country. The examples are all around us: who would have imagined a few years ago cyber-attacks of the nature and on the scale that now threaten us? My concern is that if we try to rigidly define what we mean by national security, we run the risk of defeating the means by which we can keep this country safe.

[Joanna Cherry]

I hear what the Solicitor General says about the measure only facilitating preparatory steps, but under the terms of clause 218(8) we will never know whether the notices exist or their contents, so we will not be able to know whether we are dealing with preparatory steps or whether they could go beyond that.

[The Solicitor General]

I have gone as far as I can to explain the types of scenarios that the national security notices would be used for. In essence, they deal with the nuts and bolts rather than the intrusion. If somehow there was a gateway into intrusion, the hon. and learned Lady would be absolutely right, but I assure her that there is not, so the worries that she and other people and organisations have about a blank cheque, while understandable, are unfounded. I can assure her in Committee and I am happy to continue to make the assurance that the function of this type of notice is not intrusion.

Indeed, we have oversight because national security notices will be overseen by the Investigatory Powers Commissioner. The commissioner will have a duty to report at least once a year on what he or she has found and to make recommendations on where improvements can be made. The commissioner will also have the power to report on an ad hoc basis on any issue that he or she considers appropriate.

[Keir Starmer]

I am listening carefully to the Solicitor General. He says that the notices are not a gateway for preparatory steps to become steps that invade privacy, but where in the Bill is the provision that prevents that happening? The only restriction is subsection (4), which does not achieve that end.

[The Solicitor General]

With respect, I do not think that is necessary because any agency that sought to use this type of notice in order to get around the double-lock provisions in the Bill would soon come a cropper with the commissioner. That important oversight means that organisations are not operating in a vacuum; they will be held to account if they try to misuse these notices in the way that the hon. and learned Gentleman and others fear.

As I have said, we have the powers of review by the IPC. We also have the provision, pursuant to clause 220(5)(b) and (7), that the Secretary of State must consult the commissioner if a notice is reviewed, and the commissioner will then consider the proportionality of the matter before reporting conclusions to the Secretary of State. We have the checks and balances that the hon. and learned Gentleman rightly wants within the mechanism.

On amendments 853 and 854, I would say this: the role of the Secretary of State in issuing national security notices rightly reflects the responsibility of the Executive in protecting our national security; conversely, the role of the judicial commissioner in approving the issuing of warrants under the Bill reflects the particular and proper sensitivity regarding interference with private communications. We have got the double lock in place to ensure that, before the fact, a senior judge has to be satisfied that any interference with privacy is justified. The Bill explicitly prohibits—this is an important point—the issuing of national security notices for the primary purpose of obtaining private information, and the double lock then applies to the use of the most sensitive powers. We need to focus on the need for the double lock in relation to applications that result in the acquisition of private information. These types of notices do not permit the authorities to do that, so the amendments are unnecessary.

Amendments 845 and 855 deal with technical capability notices. Clause 217 builds on the current power provided for under the Regulation of Investigatory Powers Act 2000, where a company can be obliged to maintain a permanent interception capability in order to ensure that when a warrant is served, a company has the infrastructure in place to give effect to it securely and quickly. Again, any warrant served will have been reviewed by a judicial commissioner; he or she will play an important part in overseeing the operation of technical capability notices and any appeal that may be lodged against them. The commissioner will also be consulted about the making of regulations that will provide more detail about the operation of these types of notices, and those regulations will be put before Parliament for approval. Plenty of the checks and balances that the hon. and learned Member for Holborn and St Pancras, others interested in Bill and I would expect and want to see are here.

I am not persuaded of the need for amendments 852 and 859, because clause 220 already sets out the role of the IPC in the process of review and the actions that the Secretary of State must take in that process. The IPC will be integral to any review, because the Secretary of State must consult the commissioner, who will then consider whether the notice is proportionate. Inevitably, considerable weight will be afforded to the advice of the commissioner. The role of the commissioner provides an opportunity for the person on whom the notice has been served and for the Secretary of State to present evidence. The conclusions of the commissioner will be reported to the Secretary of State and to the person who has made the reference. After consideration of the conclusions, the Secretary of State may decide to confirm the effect of the notice, to change or vary it, or to withdraw it. Until that decision is made, there is no requirement for the person who has referred the notice to comply with the specific obligations under review.

In a nutshell, there are plenty of adequate safeguards to alleviate the concerns expressed by the hon. and learned Gentleman. I urge him to withdraw his amendments.

--- Later in debate ---

[Joanna Cherry]

I respectfully support everything that the hon. and learned Gentleman has said.

[The Solicitor General]

In arguing in opposition to the amendments, I first want to address the last point that the hon. and learned Member for Holborn and St Pancras made. I can come back to his point about the tests, but in a nutshell, they are inherent to the Bill. The tests of necessity and proportionality are part and parcel of the decision-making process that the authority will be enjoined to carry out.

[Keir Starmer]

It is noticeable that, for obvious reasons, necessity and proportionality have been written into relevant clauses throughout the Bill, but here, I think for the first time, we have a wide-ranging power with no such test—unless I have missed it, in which case I will happily concede the point.

[The Solicitor General]

In strict terms, the hon. and learned Gentleman is right—I am looking at clause 218 in particular. I think that subsection (3) might help him, because although we do not have the words “necessity” and “proportionality” there, the matters to be taken into account lead one to conclusions based on necessity and proportionality, and perhaps do so in a more prescribed way that is more helpful to the decision maker. Subsection (3)(a) to (e) addresses the hon. and learned Gentleman’s point, and I put it clearly on the record that the principles of necessity and proportionality are part and parcel of the tests to be applied.

I also note that necessity is required under clause 217(6), which relates to the steps specified in a technical capability notice. I do not know whether that helps the hon. and learned Gentleman. I will certainly consider the issue carefully, but on the face of it, I do not think there is a worry of the sort that he envisages.

[Joanna Cherry]

The Intelligence and Security Committee described the clause as a

“seemingly open-ended and unconstrained power”.

Does the Solicitor General not agree that it is therefore essential that the tests of necessity and proportionality are spelled out in the clause, as they are in other parts of the Bill?

[The Solicitor General]

I hear the hon. and learned Lady, but I am not convinced that the basis of her argument is right given the breadth of the power. As I said in the context of national security notices, the technical capability notice is only a preliminary step. It will allow the subsequent implementation of a warrant, which will then be subject to the tests of necessity and proportionality. I would not want the Committee to operate under a misapprehension. It is my strong, and I hope clear, assertion that we are dealing with an earlier stage of the process, so we should not be driven to the conclusions that I know critics of the Bill want us to reach.

May I deal with encryption, which, as the hon. and learned Gentleman rightly characterised, is at the heart of the matter? I put it on the record that the Government recognise the vital importance of encryption. It has become part of our daily lives. It keeps our personal data and intellectual property secure and ensures safe online commerce, and the Government work closely with industry and business to improve their cyber-security. I can reassure the Committee that in the preparation of the code of practice, there has been close consultation with the interested parties in the industry to ensure that it comprehensively reflects the realities and needs of those who operate in this sphere. Not only does the code of practice replicate the provisions of RIPA, but it goes further, with a degree of specificity that is not possible in primary legislation. It will be a flexible, living instrument that will form a clear prospectus within which everyone can work. I make no apology for the measure being in a code practice, which is where it should be, rather than in primary legislation. With the best will in the world, we all know that it is difficult to amend primary legislation and ensure that it keeps pace with the somewhat breathtaking changes that occur in this particular field of operation.

I also want to talk about the role of GCHQ, which plays a vital information assurance role and provides advice and guidance to allow the Government, industry and the general public to protect their IT systems and use the internet safely. As the director of GCHQ, Robert Hannigan, made clear in his speech on 8 March:

“I am accountable to our Prime Minister just as much, if not more, for the state of cyber security in the UK as I am for intelligence collection.”

In the past two years the security and intelligence agencies have disclosed vulnerabilities in every major mobile and desktop platform, including some of the big names that underpin business here in the UK. In September 2015, Apple publicly credited CESG, the information assurance arm of GCHQ, with detecting a vulnerability in its operating system for iPhones and iPads, and we all know where that vulnerability could have led. The vulnerability was fixed as a result of that intervention, so the suggestion, which I know has not been advanced in this Committee—and I hope will not be—that the Government are opposed to encryption, or would legislate to undermine it, is wholly wrong.

We have to ensure that we have the necessary capabilities to keep our systems safe. Encryption is now, in effect, the default setting for most of our IT products and online services, and although it can be a power for good in keeping the law-abiding safe and secure, sadly it is used easily and all too cheaply by terrorists, paedophiles and other criminals. Therefore it can only be right that we retain the ability to require telecommunications operators to remove encryption in strictly limited circumstances, with strong controls and safeguards, so that we can address the increasing technical sophistication of those who would seek to do us harm. If we do not do that, we must simply accept that there are areas online that are beyond the reach of the law, where criminals can go about their business unimpeded and without the risk of detection. I do not accept that, and I know the general public do not accept it either. That is our starting principle.

[Joanna Cherry]

Clause 218(8) and (9) provides that the recipient of a notice must comply with it but must not disclose either its existence or its contents. Does that mean that if an Apple against the FBI scenario were to occur in the UK, Apple would not be able to disclose even the fact that it had been served with a notice, let alone challenge it in court? That is how I read it.

[The Solicitor General]

Not without the permission of the Secretary of State. I will return to the mechanism in question, but I am grateful to the hon. and learned Lady for raising that point. I am sure I will be able to provide her with clarity as I develop my remarks.

The starting principle is shared by David Anderson, who in his important review said:

“My first principle is that no-go areas for law enforcement should be minimised as far as possible, whether in the physical or the digital world.”

That view was shared by the Joint Committee on the draft Bill and is shared by the Select Committee on Science and Technology, both of which recognise that, in tightly prescribed circumstances, it should remain possible for our law enforcement and security and intelligence agencies to be able to access decrypted communications or data. That is what clauses 217 and 218 are all about: strong safeguards to ensure that obligations to remove encryption can be imposed only in limited circumstances, subject to rigorous controls.

--- Later in debate ---

[Keir Starmer]

I looked carefully at that subsection, but perhaps the Minister could explain why it is a limiting provision. It is a requirement provision as far as the notice is concerned, but on the face of it, encryption is not limited to protection applied by, or on behalf of, the person themselves. It tells us how that situation would be dealt with, but it is not limited to that.

[The Solicitor General]

I have been interested in the clause for a while, because there are issues about what “relevant notice” means, for example. I assure the hon. and learned Gentleman that that applies only to technical capability notices, not national security notices. I will carefully consider how we can make that absolutely clear, and in that context I will have another look at the how the clause is worded. I want to put beyond any doubt the fact that the clause relates only to a technical capability notice and does not relate to third parties. That has been an important undertaking that we have given.

[Mr Hayes]

Deliberating on the interesting discourse that has taken place between the Solicitor General and the hon. and learned Member for Holborn and St Pancras, I take the point that the hon. and learned Gentleman makes about necessity and proportionality running as a theme throughout the Bill. My hon. and learned Friend the Solicitor General is of course right that these are preliminary measures, and therefore once an outcome that has been tested for proportionality has been reached, that will not be a problem. I say to him that there is an argument for taking that into account and making it even clearer, either in the supporting documentation or in the Bill.

[The Solicitor General]

I am grateful to my right hon. Friend, and I will do that.

Before I go further, I will deal with the point that the hon. and learned Member for Edinburgh South West made about Apple. My understanding is that the process will give her some reassurance. In that scenario, Apple, as the recipient of the notice, could refer it back to the Secretary of State, who in turn must then consult the technical advisory board and the IPC before deciding whether to proceed further with the notice. If the Secretary of State proceeded, it would then be judicable in the courts, which would determine whether the notice could be enforced. It is quite similar to the scenario that we discussed in the context of national security notices. I hope that gives her some assistance.

[Keir Starmer]

I have looked at this issue in the past day or two, and I was concerned about the implication that on the face of it, one could not challenge the provision in court, because there is an absolute bar on disclosure. Am I right in assuming—if I am, it should be on the record—that the Secretary of State will give permission, where appropriate, for a legal challenge to be brought? In other words, there could be disclosure for the purposes of legal proceedings.

[The Solicitor General]

On the face of it, that has to follow. If any clarification is needed on that, I am sure I can assist as I further develop my remarks.

I was dealing with the process of consultation before the giving of a notice, and we have had the Apple example. I would like to develop the importance of the draft codes of practice, which the hon. and learned Gentleman has referred to.

[Suella Fernandes (Fareham) (Con)]

The Solicitor General is talking about the power of review in clause 220, which should be read with the power to issue notices. That is important because it obliges the Secretary of State to consult the technical advisory board and the Investigatory Powers Commissioner. That process was endorsed by EE, a communications service provider, in its evidence to the Joint Committee on this very point.

[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.

[Christian Matheson]

I am getting a bit confused. My understanding was that these provisions applied only to communications service providers. I think it was the hon. and learned Member for Edinburgh South West who raised the question of Apple, which to my mind is not a communications service provider, but the Minister responded in the same terms. Will he clarify who exactly we are talking about and who the provision is intended to cover?

[The Solicitor General]

The hon. Gentleman is right to make that important point and to steer us back on to the straight and narrow. I am not criticising the Committee for trying to bring the Bill to life with some examples. We are indeed talking about communications service providers, not third parties, which is important in the context of the Bill.

[Joanna Cherry]

Are we not concerned here with the “relevant operator”, which is defined in clause 217(2) as

“a postal operator…a telecommunications operator, or…a person who is proposing to become a postal operator or a telecommunications operator.”?

That definition is the basis of the concern for companies such as Apple.

[The Solicitor General]

The hon. and learned Lady is absolutely right to bring us back to clause 217(2). The problem that hon. Members are anticipating is that the provisions will somehow catch parties that no one would regard as appropriate. I think I have given clear assurances on that third party problem.

[Sir Simon Burns (Chelmsford) (Con)]

I am very grateful to my hon. and learned Friend, and I do not want to be unhelpful, but I would like some clarification regarding Apple. As he is aware, Apple refused to do what the FBI asked. Although the case was never ultimately determined by the courts, because the FBI managed somehow to break open the machine and retrieve the information, how would the clause affect a similar situation if a provider such as Apple refused point-blank to co-operate, just as it did with the FBI?

[The Solicitor General]

In endeavouring to answer my right hon. Friend’s point, may I deal first with the question about telecommunications operators? Some assistance may be gained from clause 223(10), where a telecommunications operator is defined in a way that includes Apple. The famous Apple case—the California case—was about the use of a password, which is slightly different from the question of encryption, but it does demonstrate the important tussle between the need to balance public safety and privacy. In that case, the FBI, with an appropriate search warrant, was asking for the chance to try to guess the terrorist’s passcode without the phone essentially self-destructing—after so many tries, everything gets wiped.

We are talking about an attempt to obtain communications data within the robust legal framework that we have set out, with the double lock and all the other mechanisms that my right hon. Friend and the Committee are familiar with. I am grateful to him for raising that case, but there are important differences that it would be wrong to ignore. In a nutshell, without the powers contained in the Bill, a whole swathe of criminal communication would be removed from the reach of the authorities. That is not in the interests of the constituents he has served with distinction for well over a quarter of a century—he will forgive me for saying that—or any other of the constituents we represent.

I was going to come back to the obligations imposed under a technical capability notice, with particular regard to the removal of encryption. The obligations imposed under such a notice will require the relevant operator to maintain the capability to remove encryption when it is later served with a warrant notice or authorisation. That is different from merely requiring it to remove encryption. In other words, it must maintain the capability, but there then needs to be the next stage, which is the warrant application and the notice of authorisation, where there is of course the double lock. The company on which the warrant is served will not be required to take any steps, such as to remove encryption, that are not reasonably practicable.

In a nutshell, this measure is about not an interference with privacy but sets out the preparatory stage before a warrant can be applied for. The safeguards provide the strict controls that I assure the Committee are needed in this sphere of activity. We are maintaining and clarifying the existing legal position.

[Joanna Cherry]

I am anxious to clarify what the Solicitor General said about the justiciability of the issuing of such a technical notice. As far as I can see, the Secretary of State is the gatekeeper to justiciability, because the contents of a notice can be revealed only with his or her permission. Where does it say that that can be justiciable, because I cannot find it?

[The Solicitor General]

I think it is clause 220, but I will get some further assistance on that point for the hon. and learned Lady before I resume my seat. I am grateful for that intervention.

The Bill does not drive a coach and horses through encryption. It does not ban it or do anything to limit its use. A national security notice—we debated this matter on clause 216—cannot require the removal of encryption, which further supports my argument that there is no blank cheque in the context of these notices. On the issue of civility, rather than keep this Committee waiting, I will write to the hon. and learned Lady to clarify the point that she rightly raised.

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

This is a general point. Although we are examining this Bill in detail, there will of course be an ongoing debate, particularly as the technical companies tussle with the public, about what the public find acceptable. Those companies should not think that the debate ends here; they will have to justify their actions to the public in future.

[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.

--- Later in debate ---

[The Solicitor General]

I am glad that my hon. and learned Friend has reminded us of that. I referred earlier to that consultation process. The next stage is when the Secretary of State decides to proceed. I will consider that issue even more carefully to ensure that the Committee is furnished with as much information as possible before Report.

Let me deal with the amendments tabled in the name of the hon. and learned Member for Holborn and St Pancras and others. On amendment 846, the Bill already makes it absolutely clear that a communications service provider will not be obligated to remove encryption where it is not reasonably practicable for them to do so. I do not think the amendment adds anything, and in many cases it would have the effect of inhibiting law enforcement agencies and the security and intelligence services from working constructively with tele- communications operators as the technology develops. I am sure that that is not the intention of the amendment. Depending on the individual company and the individual circumstances, it may be entirely sensible for the Government to work with a company to determine whether it would be reasonably practicable for it to take steps to develop and maintain the technical capability to remove the encryption it has applied to communications or data.

My worry about the amendment is that we would end up with communications services that can be used by criminals and others to communicate with each other unimpeded. We know that internet gambling sites, which have chat room provisions, are used by criminals for entirely unrelated criminal activities. I am sure that that is not the intention behind the amendment. Therefore, with respect, I urge hon. Members to reconsider it.

I will not deal in detail with amendment 847, because I do not think the hon. and learned Gentleman seeks to press it. Although I oppose it, I will move on without argument to amendments 848 and 858. We have discussed similar amendments on extraterritoriality in relation to other powers in the Bill. I pray in aid the arguments I used earlier. The provisions in the Bill allow a notice to be given in the most appropriate manner, taking into account the preferences of each company, which is an example of the adaptability of the legislation to the real world.

Amendment 848 is unnecessary because the clause is about not the acquisition but the development and maintenance of a technical capability. Conflict of law issues are much more likely to arise in respect of giving effect to a warrant, and we already have protection in the Bill for such cases. Admirable though the amendment may seem, it is therefore unnecessary.

Amendment 849 is unnecessary because it duplicates provisions in clauses 218, 216 and 217. I have discussed clause 218(3), which stipulates that the Secretary of State must consider a wide range of matters before giving a notice. That detailed assessment already speaks to the issues raised by the amendment. The Secretary of State has to be satisfied that the conduct is proportionate, justified, necessary and practicable.

[Joanna Cherry]

I am sorry to interrupt the Solicitor General’s flow, but I sense he is coming to the end of his argument. Will he clarify something? Am I right in understanding that there is nothing in the clause to prevent someone who is intent on evading surveillance from using open-source encryption software that is personally generated by the user? That would mean they could encrypt files and email communications themselves, independent of any provider, and therefore remain untouched by this legislation.

[The Solicitor General]

That question is about the definition of the provider. I am sure we will be able to provide some clarity on that before I draw my remarks to a conclusion. I am grateful to the hon. and learned Lady for raising that point.

Amendment 850 relates to consideration by the Secretary of State of the effect of a notice on the privacy and human rights of people both here and outside the kingdom. The amendment is unnecessary because of the point I made before, which I will reiterate: the clause is not about notices authorising an interference with privacy. A warrant provided for elsewhere in the Bill is required to do that, and we have already considered the potency of the double lock and the test to be applied. A point that is relevant to all the amendments in this group is the statutory function of the Investigatory Powers Commissioner to oversee the use of notices. I raised that in the context of national security notices, and I pray it in aid here again.

Amendment 857 seeks to narrow the category of operators to whom a technical capability notice can be given. I am worried that that would limit the effects of law enforcement. We know about the diversification of criminality and terrorism in order to find new ways to avoid protection. I am concerned that narrowing the legislation would allow loopholes to get larger. It is therefore important that the obligations relating to the technical capabilities for a range of operators can be imposed by the Government in order to ensure we keep ahead of the curve.

The hon. and learned Lady made the powerful point that the clause does not relate to personally applied encryption. However, measures in part 3 of RIPA 2000 provide for where law enforcement agencies can require an individual to remove encryption that he or she has applied themselves. We know that the Bill generally does not cover all the agencies’ powers. This is perhaps a welcome opportunity to remind ourselves of the existing provisions in part 3, so I am grateful to her.

Of course we accept that it may well be appropriate to exclude certain categories of operator from obligations under the clause—I am thinking, for example, of small businesses; we are always mindful of the burden of regulation on small businesses—but it is our intention to use secondary legislation to achieve that. It would not be appropriate in primary legislation to impose blanket exemptions on services with a communications element that are not primarily communications services. To do so would send a rather alarming and clear message to terrorists and criminals that communications over certain systems will not be monitored. That sort of carve-out recalls the point that I made about the use by criminals of seemingly unrelated or innocuous communications channels in other internet facilities or apps, in order to hide their illicit enterprises.

I know that I have taken up an inordinate amount of the Committee’s time. I am obliged to the Committee and to you, Ms Dorries, for your indulgence. I hope that I have set out the reasons why I urge hon. Members to withdraw the amendment, and I pray in aid my arguments as advancing the case that the clause should stand part of the Bill. I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I have only three issues to address. The first, which requires more attention from the Solicitor General—I say so with no disrespect—is the question of the extent of the prohibition on disclosure and, essentially, access to the courts or appropriate tribunals. On the face of it, clause 218(8) is a prohibition on disclosure, save with the permission of the Secretary of State. With respect to Committee members, I do not think that clause 220 provides the answer, because that deals with the consultation exercise where a notice is being reviewed.

I have no doubt that, if the Secretary of State exercised her power under clause 218(8) to prevent access to the courts, it would run straight into an article 6 access to courts argument that would succeed on judicial review. I had assumed that one could read into the clause by implication that permission would not be refused in a bona fide and proper case where access to court—or the relevant tribunal, which may be a better way of putting it—was an issue. If that were made clear for the record or by some redrafting of the clause, it would help. As I said, I think that, in practice, any court in this jurisdiction would strike down pretty quickly a Secretary of State who sought to prevent access to the court.

[The Solicitor General]

I think that the hon. and learned Gentleman is right about that. On that basis, I will have another look at clause 218(8), to get it absolutely right. I reassure him that it is not the Government’s intention to preclude access to the court.

[Keir Starmer]

I am reassured. I am sure that that would not be the case, but it might be sensible to clarify that rather than relying on clause 220, because I am not sure that that is the right way to do it. However, I will say no more about that.

I was going to press for votes on amendments 846 and 849, but I have listened carefully to what the Solicitor General said and to what the Minister said when he rose to make some observations earlier. They are by far the two most important amendments. Amendment 846 deals with encryption. I think I heard the Solicitor General say that he will look again at the wording of clause 218(4) to see whether it is possible to make clear what is clear in the code of practice, namely, that an obligation placed on a CSP to remove encryption relates only to electronic protections that the company itself has applied to intercepted communications and secondary data. That is clearly the position that the Government adopt, because it is now set out in the code. I think that the Solicitor General might accept that, at the moment, clause 218(4) does not quite achieve that objective. On the basis that he is prepared at least to look at that again, I will not press amendment 846.

Investigatory Powers Bill (Seventh sitting)

Robert Buckland Excerpts

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

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

There is one small difference between amendment 135, which was tabled by the Labour party, and amendment 236, which was tabled by the Scottish National party. Amendment 236 includes, in proposed new subsection (2)(p), the Scottish Criminal Cases Review Commission, which is a separate body. I say that for completeness.

[The Solicitor General (Robert Buckland)]

It is good to serve under your chairmanship once again, Ms Dorries. I welcome the spirit in which the amendments have been tabled. There is a common sense of purpose among Committee members to ensure that the ambit of the authorities that have power to access communications data should always be strictly scrutinised. In that spirit, the Government have progressively reduced the number of such authorities. They have reviewed that number and keep it under review. The list of such authorities in the Bill is not simply a replication of the list in the Regulation of Investigatory Powers Act 2000, but has been the subject of careful consideration.

It has been judged that it is necessary for those public authorities to be allowed to access communications data for a narrow range of purposes. For example, insider trading needs to be investigated, and the Financial Conduct Authority is the body to do that. The Maritime and Coastguard Agency will need access to such information to locate people lost at sea. Bodies such as the Food Standards Agency and the Department for Work and Pensions have been given clear remits by Parliament to investigate certain types of criminality and civil matters, because such investigations often require dedicated resources and specialist knowledge. To unduly restrict those agencies in their work would cause an imbalance.

I know that the hon. and learned Gentleman shares those views, because in his previous incarnation as the Director of Public Prosecutions he made it clear, for example, that communications data should be available to organisations such as the DWP in investigating any abuse of the welfare system or other public funds. I therefore know that he has a common purpose in mind.

The Bill for the first time brings together all the public authorities with access to communications data in primary legislation. That is an important and welcome step up from previous practice. I should be clear that all the authorities listed in the Bill were required to make the case that they needed the power to access communications data. Therefore, as I have outlined, the list in the Bill is not just a blind replication of existing lists. As I have said, we removed 13 public authorities from the list in February last year. Amendments that were tabled by my right hon. Friend the Minister for Security and that we will debate shortly will introduce further restrictions on certain public authorities. That shows that the Government are taking great care in this area.

[Keir Starmer]

I wonder whether the Solicitor General can assist the Committee, either now or at some later stage, by setting out some detail about how the case was made for each of the agencies, and in particular why the designated senior officer grades were chosen. That is quite a complicated question, but it is striking, from the Committee’s point of view, that a watch manager is listed as a designated senior officer when one is talking about accessing communications data. I have already given other examples.

[The Solicitor General]

I shall try to assist the hon. and learned Gentleman. I will not be able to give him an exhaustive list here and now, as he is aware, and I am pretty sure that the information that he seeks is available in some form. We will, of course, help to signpost him to it.

I make the simple case about watch managers that there will be emergency situations, such as missing persons inquiries, in which fleetness of foot is essential. Suggesting that a more senior level of management would be appropriate risks important data being lost or not being available in those emergency situations. There are certain key situations where we are talking about the protection of life in which the balance needs to be struck in the way that we suggest in schedule 4.

With regard to schedule 4, public authorities cannot all acquire communications data for the full range of statutory purposes. Each can acquire data only for the purposes for which it has justified a need for them. That maintains the essential principle of proportionality, so that the public authorities concerned only have the powers for which they have made a compelling case.

To give some examples of the changes from RIPA, ambulance services will no longer be able to acquire communications data for the purposes of preventing and detecting crime, and the Prudential Regulation Authority will no longer be able to acquire communications data in any circumstances. In addition, the Bill allows for the ability of a public authority to access communications data to be removed, should a public authority cease to have a requirement to make those acquisitions. That is a very important check and balance.

To fill in some more detail in respect of the question the hon. and learned Member for Holborn and St Pancras asked about the detailed justification for each public authority, each authority has been required to provide evidence of utility and the need to acquire communications data. That included detailed consideration of the level of authorising officers, so that we got the balance right in terms of appropriateness.

[Joanna Cherry]

I note that the Solicitor General spoke of details of the “utility”, but the Digital Rights Ireland case sets out that states must limit the number of persons authorised to access and use this sort of data to what is “strictly necessary”. Does he agree that a long list of authorities, many of whose primary functions are wholly unrelated to law enforcement in the context of serious crime, is inconsistent with the requirement of strict necessity laid down in the Digital Rights case?

[The Solicitor General]

I am grateful to the hon. and learned Lady and can correct the record in this way. I should have used the phrase “utility and need”. I think that important word, to which she quite rightly draws my attention, answers the point. In one of the examples I have given, where a need was not demonstrated by the PRU, the power was removed entirely.

Among the bodies that the amendment seeks to remove are Her Majesty’s Revenue and Customs and the Ministry of Defence. I am afraid that both bodies are intercepting agencies, and communications data are part of their work in targeting interception so that the powers which we all accept are intrusive are used in as tightly constrained circumstances as possible. My worry is that the amendment, however well intentioned, might well have the contrary effect on that important targeted work and the need for those organisations to target their activities.

I remind the Committee that David Anderson QC concluded in his report:

“It should not be assumed that the public interest is served by reducing the number of bodies with such powers, unless there are bodies which have no use for them.”

The Joint Committee on the Draft Investigatory Powers Bill also recognised communications data as

“an important tool for law enforcement and other public bodies.”

For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I am grateful to the Solicitor General. There is obviously concern about the threshold and safeguards for accessing communications data. That is what the Digital Rights case is all about; it is what the Tom Watson and David Davis case will test. To some extent, until that case is concluded, we will not know in specific terms what the safeguards are, although, as I foreshadowed last week, my view is that the requirements for safeguards will tighten as time goes by. It may not be exactly as the divisional court set out.

The Solicitor General has indicated that he will point me to the material that at least summarises why it was thought that each body should be on list. I am grateful for that and will consider it carefully. Will he also, either in a letter or some other appropriate form, set out the test that was applied in clear terms, so that it can be contrasted with the Digital Rights case and any outcome of the David Davis case in due course? I acknowledge that the hon. and learned Gentleman makes a powerful point about Her Majesty’s Revenue and Customs and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Joanna Cherry]

I beg to move amendment 241, in clause 67, page 53, line 8, leave out subsections (4)(a) and (b) and insert—

“(a) is an officer appointed by the Investigatory Powers Commissioner;

(b) works subject to the supervision of the Investigatory Powers Commissioner; and is responsible for advising—

(i) officers of the relevant public authorities about applying for authorisations; or

(ii) designated senior officers of public authorities about granting authorisations.”

The amendment provides for the SPoC scheme to be operated under the authority of the Investigatory Powers Commissioner.

The clause deals with the use of a single point of contact. The purpose of the amendment is to provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. The Bill, as it currently stands, provides that authorisations shall be largely self-approved by officials and officers of public bodies, subject to the advice of a single point of contact. The single point of contact is within the organisation and is responsible for advising on the lawfulness of the authorisation. Local authorities, police forces and public bodies that are too small to have their own single point of contact are required by the Bill to enter into collaboration agreements with others and if the amendment is successful, it will necessitate leaving out clauses 69 to 71.

The Scottish National party’s preferred model would be judicial authorisation for access to communications data, as addressed in the amendments to clause 53 that we discussed in Committee last week—I have no doubt that they will be revisited on Report. But if we are to be stuck with the current model, we in the SNP think it only fair and right that the Bill should provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. In my submission, that would give the sort of oversight that we were promised in advance of the Bill but that is absent from the Bill itself.

It is my argument that it is completely unacceptable for a public authority to be able to authorise itself to have access to revealing personal data. In making this argument, I do not seek to impugn the integrity of public officials or, indeed, senior employees of our law enforcement agencies, but rather to point out the glaring reality that the primary concern of such persons will relate to the operational capacity of their agencies. That is simply a matter of organisational culture: it is perfectly understandable, but it militates in favour of independent third-party authorisation. If we are to have an Investigatory Powers Commissioner, why not give him or her that power, so that there will be meaningful oversight?

In my argument, the value and credibility of any single point of contact model would be enhanced by ensuring its independence from the public authority that seeks to use the intrusive powers given under this part of the Bill. That would also remove the need for collaboration agreements, because the single point of contact advisers would be centralised within the IPC framework. It would lift a great deal of bureaucracy out of the public organisations and law enforcement agencies by putting oversight in the hands of the Investigatory Powers Commissioner, who would then be able to encourage, across the board, a standardised approach to the advice given and, importantly, consistency in the application of the law.

The provisions currently in the Bill consolidate existing practice on the guidance issue for single points of contact and the self-authorisation regime, but the Joint Committee on the draft Communications Data Bill recommended consolidation under the leadership of police forces. However, I would argue that, while the single points of contact remain embedded within the same organisations that seek to access this intrusive material, they cannot be considered to be independent for the purposes of the role they play in the authorisation process. If they are not independent, we risk passing legislation that conflicts with European law, which, for the time being at least, applies in the United Kingdom.

The amendment would mean that the single point of contact framework, if continued, would operate as part of an overriding single oversight body, under the auspices of the Investigatory Powers Commissioner. As I said, that would create a single consistent body of staff, capable of providing help, assistance and guidance before the final determination of any application. To my mind, that is a highly sensible and appropriate approach; I would like to know why the Government are not prepared to support it.

[The Solicitor General]

I am grateful to the hon. and learned Lady for her amendment and her observations, because they give me an opportunity to remind the Committee how important the single point of contact system is, and how envied it is by other parts of the world. Those are not just my words; paragraph 9.93 of David Anderson’s important report, “A Question of Trust” states:

“As to the authorisation of communications data requests, the police took a good deal of pride in the SPoC system, which was said to be ‘the envy of many friendly countries’.”

Mr Anderson makes a particularly important observation in paragraph 9.94, when he states:

“Within law enforcement generally, it was felt that SPoCs should have strong relationships with the investigators and this was more likely to happen where they were part of the same organisation, working to the same goal (albeit with distinct and independent responsibilities).”

I will finish the paragraph:

“Their effectiveness as a ‘guardian and gatekeeper’ could however diminish were they to become simply part of the investigation team”.

Here the hon. and learned Lady’s point is a strong one, but it has to be observed in the right context, which is that of the investigation. I absolutely agree with her about the importance of having an arm’s length approach, which is why the designated senior officer who is allowed to authorise an application must not be part of that operation. The draft code of practice contains helpful guidance from paragraph 4.28 to paragraph 4.47, and paragraph 4.48 then deals with the question of the designation of a single responsible officer.

Therefore, in the light of all the careful consideration that has been given to this tried and tested system, I argue that the balance is being properly struck here. Indeed, the extensive benefit and the safeguarding mechanism which the SPOC role brings to this process has been recognised by the Interception of Communications Commissioner, who in his report of March 2015 described the SPOC role as “a stringent safeguard”. These are people who are specially trained in the acquisition of communications data.

[Suella Fernandes (Fareham) (Con)]

I reiterate that this point was made very clearly by Michael Atkinson of the National Police Council’s Data Communications Group. He described the role of the SPOC as being “independent of the investigation” and subject to IOCCO inspections. They would also be regularly overseen, scrutinised and challenged on their work. So there is a very robust system of oversight and review, is there not?

[The Solicitor General]

My hon. Friend is absolutely right. It is that oversight which I argue establishes the essential checks and balances here, to prevent the sort of abuse about which all of us on the Committee would, rightly, be worried. These are sensitive matters.

[Joanna Cherry]

At the Scottish Bar we often use the phrase “nemo iudex in sua causa”, which means “no man should be a judge in his own cause”. I am sure that that is used at the English Bar as well. Will the Solicitor General tell me how he is able to elide this principle, as the SPOC comes from the same organisation as the initial authoriser?

[The Solicitor General]

I thought I had made it clear to the hon. and learned Lady that the key word here is investigation. Those officers who are responsible for the course of the investigation are not the SPOC. That person is independent and they are at arm’s length. They are therefore able to exercise the objectivity and the sense of self-discipline that is essential if public authorities are to retain our confidence. It is all underpinned by the scrutiny of the IOCCO. In my submission, to move away from a tried and tested system that is internationally recognised would be, with regret, a mistake.

With respect to the hon. and learned Lady, I do not see how the process would be enhanced if it were to be done in the way that the amendment suggests. We already have oversight, as I have indicated. In fact, my concern is that the expertise within public authorities of how best to facilitate these sort of requests could be diminished, and there could be a detrimental impact on the relationships with both the service providers and the investigators. My worry is therefore that the understandable aims behind this amendment could be frustrated in a way that is perhaps not being properly foreseen.

[Joanna Cherry]

On a connected point, the evidence from Jo Cavan at IOCCO has expressed concern about the inclusion of subsection (3)(b), “the interests of national security”. I would like to probe this. It has been suggested that the justification for deeming the interests of national security to be almost an exceptional circumstance is unclear. What is the justification?

[The Solicitor General]

In a nutshell, we are talking here about rare and exceptional circumstances where it might not be possible to consult an SPOC. Where we are talking about national security, I would envisage a risk to the nation that all of us would understand if we saw it—rather like an elephant in a room. As I have said, though, it is couched with particular regard to the governing part of that clause, which is exceptional circumstances. Therefore the hon. Lady can be reassured that this is not some sort of back door by which this power would be misused. For all the reasons I have advanced, I urge the hon. Lady to withdraw the amendment.

--- Later in debate ---

[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.

[The Solicitor General]

I thank the hon. and learned Gentleman for clearly outlining the kernel of his concern about the way the clause is drafted. Although in the drafting of the clause we have tried, quite properly, to address what is a sensitive occupation—I hesitate to use the word “profession” because some journalists do not like to be described in that way—we are in danger of moving the focus away from the public interest that journalists serve, which is freedom of expression in a democratic society without fear of intrusion by the authorities and in a way in which sources, and the journalists themselves, can be protected. We have to draw a very important distinction. It is tempting to try to draft amendments dealing with journalists in an ad hominem, or group, way. However, we are not talking about that; we are talking about the source material. Therefore, in a nutshell, I am afraid that the amendment does not really deal with the essential public interest, and that is why I commend the Government’s approach to the Committee.

I will say to the hon. and learned Gentleman, by way of reassurance, that if we can do better in the code of practice, we will. I am certainly open to active consideration of the ways in which we can improve the drafting to make the principles of freedom of expression, and the points that he and I agree on, even clearer to those applying these rules.

[Keir Starmer]

The Solicitor General is resisting this sensible and constructive amendment, which reflects the PACE approach, on the basis that one should not get too specific and one needs to understand the underlying public interest. He must accept that the points he makes apply equally to the PACE test. It does not matter whether someone is physically seizing a document that reveals a source or seizing something that serves virtually the same purpose. He must accept that the test is working well in practice and that all sides are pretty content with the way it works at the moment.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman, but, tempting though it is to draw that comparison, I think that he is mistaken. The PACE code of practice focuses on the person who, as it appears to the judge, is in possession of the material. That is not always the journalist; for example, a journalist’s material in regards to comms data will be held by the communication service providers and not by the journalist. Under PACE, journalists are not notified in such cases.

[Keir Starmer]

Will the Solicitor General give way?

[The Solicitor General]

I will not give way at this stage because I want to explain the position. I have given way repeatedly and I want the chance to make my argument. I am sorry if people think, for some reason, that I am not listening or being reasonable. I need to explain the case because I do not think that it has been fully understood.

The hon. and learned Gentleman is right to talk about the position under PACE whereby journalists are asked to surrender data, such as in notebooks; however, under RIPA and the PACE procedures, applications are already being made to others in possession of material, journalists are not notified and the principles are very clear. I do not think it is right of him to draw such an easy comparison and to say, “It is working for PACE, therefore it should be read across the provisions of the Bill.” That is comparing apples with pears—with respect to him.

[Keir Starmer]

I have obviously looked carefully at what the Government said in the past on this issue and what was said in response to the pre-legislative Committees. The point has been made that, on the one hand, it is seizing from the journalist themselves and on the other hand, it is seizing from the person who holds the data; that is a material difference and we cannot compare the two schemes. I wonder whether that withstands proper scrutiny. The whole point is to give a source confidence that they can come forward and tell a journalist something and they will be protected. Otherwise, all the case law recites the fact that sources will not come forward and wrongdoing will not be exposed, which is unhealthy for democracy.

The argument that, if you seize my name in physical form from a journalist, it is to be protected, but if my name is being held by a data holder it can be given up and does not require protection, defies common sense. For the source, the question is: what is the protection for me if I come forward and try to expose someone? The argument that you are fine if it is written in a notebook and held by the journalist, but you are not protected if it finds its way into a bit of data held by someone else does not hold up.

[The Solicitor General]

Yes, but with respect, the hon. and learned Gentleman is ignoring the function of this clause, which is that where you do have that list, we have a special procedure. The problem with that argument is that there is a sensitive issue here. Where someone—whether they are a journalist or not—is the subject of a legitimate investigation, that could undermine such an investigation. Getting the balance right is therefore very important—[Interruption.] I want to finish this point. That is why, both in the Bill and this clause, special procedures apply where the sort of mischief about a source being compromised is indeed a live issue.

[Keir Starmer]

In amendment 141, which the Solicitor General is resisting, we have deliberately and intentionally accommodated the test that notice need not be given where it is necessary

“in order to avoid prejudice to the investigation.”

He has given a powerful example, but we have catered for that by saying that notice does not need to be given in that instance. The norm is that notice is given in the usual way, but the exception is where there is prejudice to the investigation. That absolutely meets his concerns; but it does meet my point that notice should otherwise be given.

[The Solicitor General]

I am glad we both note that we are trying to get to the same objective. I have already said to the hon. and learned Gentleman that the combination of legislation and the code of practice will be the way in which this framework is set out. I have indicated that if we can do better on the code of practice, we will; we will work with him on that. I also reiterate the amount of care that my right hon. Friend the Minister for Security and I are taking on this particular issue. We have met with leading representatives from journalism on three occasions to discuss the Bill. We have written to the National Union of Journalists and the News Media Association about the concerns they have raised. This is part of a dialogue that is very much ongoing about the protections afforded by the Bill to journalistic material. They rightly say to us that it is not about them but about the interests that they serve. I cannot reiterate enough that we must focus on that issue when drafting the legislation.

May I deal with other Members who have considered the issue? The Interception of Communications Commissioner carefully considered it last year. He made it clear in his recommendation that, where communications data are sought that do not relate to investigation to determine the source of journalistic information, then judicial authorisation is not necessary. I know that the hon. and learned Gentleman is trying in effect to replicate that carve-out. On the proposed restrictions on the circumstances in which a communications commissioner may approve the obtaining of communications data that are journalistic in nature, where the request is for one of the legitimate aims in article 10.2 of the convention, there is an overriding public interest necessitating the order and the order is proportionate to the legitimate aim or aims being pursued, we already have the concepts of necessity and proportionality under part 3 as spelt out in the draft code of practice—as indeed they are in the code of practice for existing legislation. We already have a tightly constrained framework here, which offers a high degree of reassurance to all of us who care passionately about these issues, as I do. The Investigatory Powers Tribunal has been clear in recent authority, such as the case of News Group Newspapers Ltd and others v. Metropolitan Police Commissioner in December last year, that the 2015 code of practice drafted under the current provisions and replicated in the regime in the Bill meets the standards on freedom of expression set out in article 10.

On the proposed requirement for a judicial commissioner to ensure that all reasonable alternative measures to such an authorisation have been exhausted, I am afraid that in my view, there are problems with its practicability. There are many reasons why a particular approach to an investigation might be selected and the use of a particular power might be called for. Judicial commissioners, with respect to them, are not the experts in this consideration and should not be expected to be. It is for those with expertise in the range of investigative options available in the particular circumstances of the case to decide that. Then, of course, the tests can be applied.

I do not want to take technical points. With regard to the technicalities of the amendment, there are some drafting issues that would need to be worked on, but I accept that it is really about principle and the approach to be taken. At this stage, although I disagree with the means by which the hon. and learned Gentleman seeks to make the change, continuing dialogue on the issue is meaningful. For those reasons and in that context, I respectfully ask him to withdraw the amendment.

[Keir Starmer]

I have listened carefully to the Solicitor General. In the end, it boils down to a matter of principle. I think that he accepts what amendment 141 says in proposed new subsections (a), (b), (c) and (d). He criticises (c), but I will not spend time on that. The most important thing is to establish that the order is directed to one or more of the legitimate aims in article 10.2 and that an overriding public interest makes it necessary. He says that that is the framework within which the decisions should be taken, so there is no disagreement between them.

The difference, then, appears to be simply that I say it should be on the face of the statute and clear to all, and he says, “No, it can be in a code without express reference in statute.” There is a problem in principle with that. Protection of journalists’ sources should be on the face of the Bill. That is important in a modern democracy. For the Bill to be silent about the test, and for only the code of practice to apply it, is wrong in principle.

Secondly, I am afraid that there is a test spelled out in the Bill, and it is inconsistent with that test. The test for the judicial commissioner in the Bill is simply to check that there were reasonable grounds for considering something, but that the other requirements in the provisions were complied with. As a matter of statutory construction, the judicial commissioner is bound to apply the test in the Bill and cannot apply any other test, so it is wrong in principle not to put it in the Bill. It is also problematic, because there is a test in the Bill and it is not a special test. Ultimately, it says that the judicial commissioner must ensure that the other provisions of the Act are complied with. We would expect that; it is hardly an enhanced test by anybody’s standards.

In those circumstances, I am afraid that the Solicitor General’s arguments are wholly unpersuasive. I will withdraw the amendment, partly because I think that there is room for improvement, on which I will certainly work with the Government. To be absolutely clear, partly because I want to reserve my position to propose the amendment at a later stage, as it is of such importance to the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[The Solicitor General]

I will not revisit the arguments except to say that there are important differences between the regime for communications data and that which is contained within clause 94, for example, which deals with equipment interference. We will come on to that in due course. I remind the hon. and learned Gentleman that paragraph 6.4 of the code of practice contains specific reference to a number of sensitive occupations, including,

“medical doctors, lawyers, journalists, Members of Parliament, or ministers of religion”.

If there is any lack of clarity in the code as to whether this includes Members of the Scottish Parliament or indeed of other devolved institutions, I am sure that that could be cleared up, and it should be.

[Joanna Cherry]

My point is not about the definition of parliamentarians but on the question of legal professional privilege. I think I am right in saying that the Government do not currently recognise that comms data come within the definition of legally privileged material. Does he not agree with me that a phone call from or to a lawyer could, for example, identify a potential witness in a case, and therefore comms data should come within the definition of legal professional privilege?

[The Solicitor General]

I do not want to go back to arguments that we have already had on this or to anticipate any future arguments. With regards to legal professional privilege, sometimes it might be difficult to establish precisely what comes within and without that category. However, we are talking not about the content of what has been said or done but about the fact of a communication having been made, so communications data will rarely, if ever, attract legal professional privilege; it is difficult to think of an example when it would.

[Keir Starmer]

I think the guidance that we are given in declaring our interests to the House is that, for legal work, the identity of the person advised is not to be disclosed, because that comes within legal professional privilege. In other words, the fact that somebody has sought advice and who has sought advice are protected by legal professional privilege. I have never known there to be any doubt about that. This is an area where there is a need for special protection; that ought to be in the statute. I think that is common ground. That is how I have always understood it. I am not entitled to say who instructs me without the consent of the client, certainly before the matter comes to court.

[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.

[Keir Starmer]

I absolutely accept that, for litigation in open court, it is pretty clear who everybody is acting for. It is common practice in the commercial world for protection to be put around whether a client is seeking advice and from whom. That is jealously guarded by every law firm that I have ever had anything to do with, for very obvious reasons. People go to lawyers; they do not necessarily want the world at large to know that they have gone and to which lawyer they have gone. I cannot over-emphasise that, in the commercial reality of the real world, that is jealously guarded.

[The Solicitor General]

I am grateful to hon. Members for trying to sift their way through what appears to be something of a labyrinth at times. I do not want to overcomplicate the situation. The Government’s view is that, combined with the code of practice, we have the necessary protections in the Bill that acknowledge that the degree and nature of the interference in an individual’s rights and freedoms will of course be greater in these sort of circumstances, so considerations of the necessity and proportionality become highly germane because they draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of rights and freedoms, in particular privacy.

[Joanna Cherry]

The Solicitor General is very generous in taking interventions. We currently have four silks arguing about whether LPP can apply to comms data. Too many lawyers spoil the broth perhaps, but is that not an indication that a code of practice is not going to be enough to resolve this issue? It should go before a judicial commissioner, as proposed by the amendment.

[The Solicitor General]

The hon. and learned Lady makes her point with force. Although the concerns she has about content and the issues that we have debated and will debate in part 5 are understandable, we are talking about a different nature of material and a different regime, where considerations can be distinct from those that apply in other parts of the Bill.

I will deal as quickly as I can with the points that have been made. I would argue that we have, in effect, a particular restriction that I would regard as not striking the right balance with respect to those who need it. We have to think in the context of the operational capability of our security and intelligence services in particular.

If there is a specific requirement for the use of PACE powers in these circumstances, I am worried that the requirements of clarity, consistency and transparency that we have to abide by will be undermined. The Interception of Communications Commissioners Office was clear in its rejection of the claim that public authorities had utilised RIPA to avoid the use of PACE. In fact, under this Bill part 3 authorisations for communications data to identify or confirm a journalistic source are subject to more stringent safeguards than under PACE, because the Bill replicates those procedures but at a higher level of authorisation, with a serving or former High Court judge, as opposed to a circuit judge, making the authorisation.

Making communications data accessible to those who have a lawful need for them at the right level of authorisation is a fine balance, but it is struck most effectively in the Bill as drafted. I am sure that Opposition Members do not intend us to reach a position where communications that have been made for the intent of furthering a criminal purpose are missed or are not accessible as they would want them to be. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.

[Keir Starmer]

I am afraid I simply do not follow the argument that transparency and accountability are lost if the protection that should properly be accorded to lawyers, journalists and MPs is spelled out in the Bill, with clear guidance to those who operate the authorisations on how to apply them. As I have indicated, these are matters of real concern that go to important issues in the Bill. In order to reserve my rights at a later stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 ordered to stand part of the Bill.

Clause 69

Collaboration agreements

Question put, That the clause stand part of the Bill.

Oral Answers to Questions

Robert Buckland Excerpts

Thursday 14th April 2016 Commons Chamber

[Tom Blenkinsop (Middlesbrough South and East Cleveland) (Lab)]

1. What steps the Government have taken to improve the conviction rate for rape and other serious sexual offences.

[The Solicitor General (Robert Buckland)]

The Crown Prosecution Service continues to improve its response to cases involving rape allegations and other forms of serious sexual offending. It has taken a number of steps to improve the conviction rate, which includes increasing the number of specialist staff within its dedicated rape and serious sexual offences unit and improved specialist training for prosecutors.

[Tom Blenkinsop]

Despite claims that we have the highest ever number of convictions, conviction rates for rape, domestic abuse and other sexual abuses have fallen in the past two years. How does the Minister intend to rectify that situation?

[The Solicitor General]

The hon. Gentleman rightly points to the fact that the actual number of convictions continues to increase, which means justice for more and more victims. It is right that the Crown Prosecution Service brings cases to juries, and, of course, it is a matter for juries to determine whether a suspect is guilty. Increased funding for the rape and serious sexual offences units means an improved early engagement with the police so that the experience of victims becomes a better one, and we have tried and tested evidence that the experience of victims is vital if we are to make improvements.

[Robert Neill (Bromley and Chislehurst) (Con)]

Part of improving the evidence of victims is surely through the increased use of live links, which we are already seeing, where victims do not physically have to come to the court building to give their evidence. The report published this week by the CPS inspectorate and Her Majesty’s inspectorate of constabulary recognises that. It says that, in some areas, the scheme is doing very well, but, in others

“the courts and the CPS were not comfortable with live links even though the video technology was available.”

What more can be done to spread consistency in its uptake?

[The Solicitor General]

My hon. Friend is quite right to highlight that important report. In places such as Kent, best practice is clearly being demonstrated. With regard to national training, which is happening now, we will see more and more use of live links from victims’ homes and other safe places to avoid the terrible ordeal in many cases of victims having to come to court to give evidence in the courtroom.

[Colleen Fletcher (Coventry North East) (Lab)]

Providing effective and compassionate support for victims and survivors of sexual violence is pivotal to ensuring that more of these heinous crimes are reported in the first place, and, ultimately, that more offenders are brought to justice. Will the Minister tell me how the Government intend to improve victim and witness care within the criminal justice system?

[The Solicitor General]

The hon. Lady may already know that revised guidance to prosecutors and Crown Prosecution Service staff about victim and witness care in the courts is already being rolled out. There are also more staff in the court system to help and support witnesses and victims through the process. More work is being done and will be done to ensure that the objectives that she and I share are met.

[Andrew Stephenson (Pendle) (Con)]

Will the Solicitor General join me in welcoming the recent violence against women and girls statistics, which show that more cases than ever before are being charged, prosecuted and convicted?

[The Solicitor General]

I certainly welcome those statistics. Importantly, they make the point that, when it comes to people’s lives, more and more individuals are finding that their cases are being heard and that justice is being done on the perpetrators of these appalling offences.

[Jim Shannon (Strangford) (DUP)]

What discussions has the Minister had with his counterparts in the Northern Ireland Assembly about the possibility of extending Clare’s law to the Province, particularly in the light of the revelation from Women’s Aid that six murders in Northern Ireland had links with domestic abuse?

[The Solicitor General]

The hon. Gentleman rightly raises the important innovation of Clare’s law, which was introduced in the last Government. I was a key supporter of that legislation. I would be happy to have discussions with colleagues in Northern Ireland. However, it is a matter that, quite properly, has been devolved, but if it would help, I will of course hold those discussions.

[Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)]

2. What assessment the Government have made of the potential effect on the use of the European arrest warrant as a prosecutorial tool of the UK leaving the EU.

--- Later in debate ---

[Oliver Colvile (Plymouth, Sutton and Devonport) (Con)]

3. What steps the CPS is taking to work more efficiently with international partners to reduce the threat of serious crime in the UK and abroad.

[The Solicitor General (Robert Buckland)]

CPS prosecutors work closely with law enforcement agencies to give investigative advice and to prosecute serious crime. They draw upon international co-operation agreements wherever necessary to secure evidence and to agree how and where cases that cover various jurisdictions should be pursued.

[Oliver Colvile]

I thank my hon. and learned Friend for that answer, but what are the Government doing to ensure that IRA terrorists are being brought back to the UK to face justice here?

[The Solicitor General]

I assure my hon. Friend that cases involving IRA suspects will be considered in just the same way as any other case. The special crime and counter-terrorism division of the CPS deals with cases of alleged terrorism. If a suspect is out of the jurisdiction, extradition will be considered if the prosecution evidential co-test is met.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

I hope that the Solicitor General has seen that yet another accused criminal has fled to Pakistan this week. Is it not a fact that we need greater European co-operation because we have no extradition treaty with Pakistan? Where a serious crime has been committed, the perpetrator too often flees to Pakistan—and however heinous the crime, we cannot bring them back.

[The Solicitor General]

I entirely agree with the hon. Gentleman. I mentioned multi-jurisdictional cases. Sometimes these perpetrators will cover more than one EU country and it is vital to have the mechanisms not just of co-operation, but of enforcement, which our membership of the EU guarantees. That is why I am a very strong supporter of remaining within the European Union.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

4. What changes would be required to the UK's legal framework in the event of the UK leaving the EU.

--- Later in debate ---

[Michael Fabricant (Lichfield) (Con)]

7. What steps the Crown Prosecution Service has taken to increase prosecution rates for internet trolling and other forms of online abuse on social media; and if he will make a statement.

[The Solicitor General (Robert Buckland)]

The Crown Prosecution Service recently revised its publicly available social media guidelines. They are subject to a current consultation, which will result in the publication of finalised guidelines on serious offences later in the year.

[David Rutley]

Does my hon. and learned Friend agree that the effect of online abuse on mental health can be damaging, particularly among young people? Will he urge the social media sector to engage with the CPS and other agencies to root out poor behaviour and signpost the support that is available to victims in law?

[The Solicitor General]

Online abuse can sometimes be worse than face-to-face abuse, because it is all-pervading and does not end at the school gates or allow for privacy at home. The Director of Public Prosecutions has met several social media providers, and the CPS will continue to work with them on measures to improve the reporting and prosecution of such abuse.

[Michael Fabricant]

Even I have been trolled on Twitter. I do not know whether it was Momentum or someone else, but people have doubted the provenance of my hair. Can you believe that?

However, a friend of mine has a young son of 16 who has also been trolled on Twitter. He did not take it as lightly as I do and the poor boy has harmed himself, which is a serious matter. I was interested to hear the Solicitor General’s reply to my hon. Friend the Member for Macclesfield (David Rutley), but what steps can we take to deter young people from bullying other young people on Twitter, Facebook and other social media?

[The Solicitor General]

I am naturally reticent to trespass upon the bailiwick of my hon. Friend’s hair, so I will confine my remarks to the serious issue he raised about the mental health impacts on young people. Work is being done on training so that CPS prosecutors can enable victims and users to report abuse and, in particular, to ensure that offending content can be removed by providers.

[Tom Elliott (Fermanagh and South Tyrone) (UUP)]

What action is being taken in schools in conjunction with the Department for Education to try to curtail the amount of online abuse aimed at young people?

[The Solicitor General]

The hon. Gentleman will be aware that a massive amount of work is being done by not only the Department for Education, but the third sector on cyber-bullying and its effects on young people. The combined approach that is being taken in schools the length and breadth of the country is not only alerting young people to the dangers, but empowering them to make complaints, so that they do not have to suffer in silence.

Investigatory Powers Bill (Fifth sitting)

Robert Buckland Excerpts

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

[The Solicitor General (Robert Buckland)]

I am sure that in due course we will outline where we are with regard to the role, or lack thereof, of the commissioner. With regard to a warrant involving a Member of Parliament, if that relates to a single individual—let us say a single Member of Parliament—that cannot be modified to have other people added in that category. There would have to be a fresh application relating to separate names. That is an important caveat that deals with a lot of the hon. and learned Gentleman’s genuine concern.

[Keir Starmer]

I am grateful for that intervention; I am happy to be intervened on. I think that comes from paragraph 5.61 of the code, on page 33, which says:

“A targeted warrant that relates to just one specified person, organisation or location, for example, cannot be modified to go beyond the original scope of the warrant.”

Slightly further down it says:

“Whilst this can be subject to modification, it cannot be modified to move beyond or outside of the scope of the original thematic warrant.”

This is an important point. First, something as important as that needs to be in statute—that is critical. In other words, if someone has a warrant for person A on a Monday and they want to add person B on a Tuesday, they must get a new warrant, not modify the existing warrant. That should be in statute, not in a code. There is obviously the question of what goes in the code, but that safeguard is important. If, for an example, a warrant touched on A on a Monday and could be modified in a way that might touch on an MP or go into prohibited legal privilege on a Tuesday, that requires more than a paragraph in a code of practice, because it is really important.

Again, I invite an intervention, but the code says:

“A targeted warrant that relates to just one specified person, organisation or location, for example, cannot be modified to go beyond the original scope of the warrant.”

That is a carefully drafted sentence. What is the position when there is a targeted warrant that relates to two people and the idea is to add one, and that one is an MP or a solicitor? I invite an intervention because that is not covered by the code’s wording.

[The Solicitor General]

I think I can assist. Perhaps there is a bit of a misconception about the current situation. If a warrant says, let us say, person A and others are known, the Regulation of Investigatory Powers Act 2000 does not require an amendment to the warrant even if another person becomes known and therefore becomes a potential target. We are tightening that up and making it a requirement that if person B becomes known, even though the ambit of the warrant at the moment covers others unknown, there has to be an amendment where we know the identity of individuals. The answer to the hon. and learned Gentleman’s question is that it can only be amended if there is an unknown part to the original warrant, as opposed to specific names.

[Keir Starmer]

I am grateful for that intervention. This is an improvement on RIPA, but that is setting the bar pretty low when it comes to modifications.

[The Solicitor General]

Let us not forget that modifications to add MPs can only be authorised by the Secretary of State. That is another important safeguard. I would not pooh-pooh what we are doing by saying that we are improving on RIPA. This is a significant improvement from where we are.

[Keir Starmer]

I look forward, on Report or Third Reading, to somebody informing MPs that a modification of the warrant that includes them can be made by the Secretary of State, without the involvement of a judicial commissioner. Understandably, great play was made of the role of the judicial commissioner when colleagues on both sides of the House were concerned about their communications with constituents. They were assured that there was a double lock and that a modification could not happen without a judge looking at it as well. Somebody has to stand up, be honest with them and say, “Well, it can actually, because it can be modified to bring you within it.” There is nothing on the statute or in the code to prohibit that. That is a very serious proposition because these are not urgent modifications. They are permanent and, in many cases, slower-time modifications.

I understand that, in a fast-moving case, urgent procedures are needed and urgent modification procedures may be needed, but these include slower-time, considered, permanent modifications to a warrant. Somebody needs to tell our colleagues that they can be included in the warrant by modification, and that it starts and ends with the Secretary of State and goes nowhere near a judge. They need to know that.

Somebody also needs to address the legal privilege point because I do not think that is addressed at all on the face of clause 30 or, as far as I can see, in the modifications part of the code of practice. Again, if I am wrong about that I will be corrected. From my reading of the Bill, a modification could be made to allow intercept in the otherwise protected area of legal professional privilege. The Secretary of State has to apply the higher test—I accept that—but it will never go to a judge. A sort of comfort is being held out to lawyers that, even in the extreme case where they will be targeted, it will at least be seen by a judge. That comfort is shot through by this provision. The clause really needs to be taken away and reworked in the light of the significant flaws—that the code is not clear enough and is not the right place for protections for MPs or for legal professional privilege. That should be on the face of the statute through an appropriate amendment.

I turn to the so-called minor amendments. We must remember that although they are called minor amendments, they are not minor. Clause 27(8) is really what comes within the ambit of a minor amendment, and that is all the detail about how the content will be examined. There is a bulk warrant, which, by its very nature, hoovers up a lot of communications. Then there is an examination warrant, which is intended to be a check and balance, and that is why there is a requirement to set out how the examination warrant will work—the address, the numbers, the apparatus, and a combination of other factors and so on. That is the really important safeguard. It is the only safeguard for bulk warrants accessing content, yet all of that is deemed to be a minor amendment. The amendments to the examination warrant—which, in truth, is the most important warrant for the bulk powers after the wide bulk warrant in the first place, as this is where we are actually looking at stuff—are all deemed to be minor.

What is the route for a so-called minor amendment? Let us trace it. Who can make the decision on a minor amendment? Clause 30(6) states that a minor amendment may be made by the Secretary of State, the relevant Scottish Government Minister, a senior official, the person to whom the warrant is addressed or a person who holds a senior position in the same public authority as that person. There is no urgency requirement. Real-time, slow amendments to the way bulk warrants will be subjected to examination can be made in the ordinary, run-of-the-mill case by the person to whom the warrant is addressed—they can modify their own warrant—or by a person who holds a senior position in the same public authority as them. With no disrespect to the individuals in those positions, we have dropped a long way down the ranking when it comes to the authority for sign-off of an amendment to an examination warrant that allows my content or anyone’s content to be looked at where it has been scooped up under a bulk provision.

I am afraid it gets worse. Whereas for a major modification there is a requirement for the decision maker to look at necessity and proportionality, there is no such requirement for minor amendments. That is astonishing and very hard to justify. I will listen carefully in due course to what is said, but why is there no need on the face of the Bill to consider whether a so-called minor modification to an examination warrant in relation to bulk powers is necessary or proportionate? Subsection (9) is clearly drafted only to catch major modifications.

Consider that a minor amendment to a warrant that applies to an MP or that touches on legal professional privilege could be made by the person to whom the warrant is addressed or someone in a senior position in the same public authority. I ask Members to inform their colleagues of that. There is no requirement that a minor amendment even goes to the Secretary of State, and certainly nowhere near a judicial commissioner.

The approval mechanism in clause 31 is only for major modifications. There is a low level of authority for making minor modifications, and there is no test. If I were a senior official in the public authority, I might say, “You just asked me to make a modification. What am I supposed to take into account?” but on the face of the Bill, there is not even a test to be applied. There is no duty—again, I am happy to be corrected—to inform the Secretary of State. For major modifications, there is such a duty, but for minor ones, there is not. Someone in a senior position in a public authority can therefore make the modification and not notify the Secretary of State. There is certainly no double lock. It is no wonder the Joint Committee was so concerned about this provision, and it is no wonder so many others have raised such concerns.

[Keir Starmer]

I would be interested in the Government’s position on that, because it does not sit with what is in the code of practice. If all clause 30 intends is to say, “We thought he was called Keir Starmer; now we know he’s called Steve”—I have always wanted to be called Steve—“but the warrant applies to exactly the same person,” or, “We thought it was 137 Charlton Road; we now realise it’s 172, but it’s the same premises”, I will sit down now and invite an intervention.

[The Solicitor General]

For minor ones.

[Keir Starmer]

No, I think the intervention is suggesting major modifications—subsection (2)(a) only applies to major modifications. That is, apart from the removing, it is the description of a major modification. If a major modification is only intended to allow the name of the same individual to be swapped—where it is appreciated that it is the same person, now called not X, but Y— that is one thing, but the code of practice then does not make much sense, because it is written on the basis that individuals are being added.

I am inviting an intervention, but I am not getting one. I would quite like one, because I would be less concerned. If this is right and that is what the Joint Committee was told—that that was the intention—then the measure clearly needs to be rewritten, which would remove a lot of concern. That is why I invite some clarification. I suspect that the non-intervention is because that understanding is not the right answer.

[The Solicitor General]

rose—

[The Chair]

Order. I gently remind the Minister that he has the opportunity to respond on behalf of the Government at the end of our debate on the group. We do not need to have a ding-dong on each point.

[The Solicitor General]

I will help! I thought that I had made the point clear. What we are dealing with here is major modifications, which will allow for the warrant to be amended to include the names—for example, of a kidnap gang—as they become apparent. At the moment, RIPA does not allow for that—there is no such provision. We are putting that in the Bill, so that when names become known we may amend the warrant, because we think that that is fairer and more proportionate. The warrant will have been authorised initially against all of the gang, say, but we are then providing the specificity that should have been there anyway.

[The Chair]

For that very reason, Minister—interventions have to be short. The debate is continuing and Keir Starmer has the Floor; then there is the opportunity to respond.

[Keir Starmer]

I am grateful to the Solicitor General. That was helpful, because if the previous intervention is right, a lot of my concern would be focused elsewhere and save a lot of time—but I am afraid it is not. On the face of the Bill, and consistent with the code of practice, named—[Interruption.] I want to be clear, to have clarity about what we are arguing about, because the point is a very serious one. As everyone can see, there is the real potential for all the careful checks and balances devised under the Bill to be shot through by the modification process. That is the real concern, and I think it is a shared concern, certainly in the Joint Committee, but also in other places.

To be clear, I think that the Solicitor General is accepting that the measure is not simply about re-identifying with a different name a person who is already specified on the warrant; he is suggesting that it would be used if a warrant was issued in relation to a gang of some sort, when some members are known and others become known, and a mechanism for adding them is needed. If that is what was intended, why is that not what has been written in the clause?

Clause 30, as drafted, does not limit in that way. If it did, the subheading would be “Modification of thematic warrants”, then it would state that where a thematic warrant has been issued naming a person, an organisation or whatever, and it becomes necessary to amend it, to clarify further the persons within the organisation, and so on, then that would be a much more restricted clause. That would probably have met some of the concerns of the Joint Committee and be a very different proposition, but that is not what has been drafted. In the code of practice, it is true, there are some warm words, but—

[The Solicitor General]

The hon. and learned Gentleman knows that the code of practice is much more than that and makes it clear that the measure is about thematic warrants. The mischief that he is worried about here is cured by the fact that if a sole named person is on the warrant, it cannot be modified to add another name; we would have to apply for a new warrant.

[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.

[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.

[The Solicitor General]

Although we have only heard one speaker, we have covered the ground on the issues at hand. The hon. and learned Gentleman’s points about the importance of warrantry and the involvement of commissioners are interesting and important. This is all about fine-tuning what I regard to be an important step forward from RIPA in ensuring that we do not end up undermining the vitally important world-leading double-lock system that this Government want to introduce, by allowing the system of modification to be a back-door route. I am absolutely with him on that and know that he and other members of the Committee have advanced these amendments in that spirit.

The hon. and learned Gentleman is absolutely right to set the context of this debate and talk about the three areas of thematic warrantry that we are talking about—targeted interception, targeted assistance and mutual assistance warrants. He made the point about trying to make that clear on the face of the Bill and the code of practice not being enough. I will go away and think about that, because I think it is a reasonable point to make. If it needs to be made clearer, we are only too happy to help. I want to ensure that what I am about to say is underlined and made clear; what I say in Committee will greatly help to inform those who will operate in this area in the future.

We must be clear about what can be achieved by a modification in the first place. I have already said that the introduction of the concept of major modifications is an important new safeguard in the Bill, because of the absence of references to that in RIPA. What we had with the Regulation of Investigatory Powers Act 2000 was the authorisation of warrants on a thematic basis. I have given the example of a kidnap gang; RIPA requires that if, for example, the National Crime Agency wishes to intercept the communications of members of such a gang, their telephone numbers must be added to the warrant as they become known—not their names and identities, just that information. I do not think that is good enough and that is why that particular oversight and anomaly—I will be generous in that respect—needs to be corrected, which is what the Bill does. The code of practice makes it clear that names can only be added to a warrant when they are within the scope of the original warrant. For example, the name of a kidnapper could be added to a warrant that relates to a kidnap gang.

[Keir Starmer]

Is there a reason why paragraph 5.61 states that a

“targeted warrant that relates to just one specified person, organisation… cannot be modified”,

which is pregnant with the idea that there is a different position when it is not just one? Was that a carefully drafted sentence that means exactly what it says, in which case what the hon. and learned Gentleman has just said has limited it, or was a wider application intended?

[The Solicitor General]

I do not think it was. I can give an example; let us say you and I are named on a warrant—God forbid—then that is a restricted warrant. There is no wriggle room. It is a bit like a conspiracy, where we might plead a conspiracy between A and B and others are known, which is perfectly permissible and very often the case in a conspiracy. But if it was a much more limited warrant naming you, me and perhaps one other named person, that does not give space to use the modification procedure to add another name because it has already been limited in its terms of reference.

[Keir Starmer]

I understand the Solicitor General’s point. However, let us say that there was a warrant that named him and me, and a third person was then identified as being in league with us, whatever we were believed to be doing. What provision in the Bill or sentence in the code would actually prevent a modification to add that person? The Bill does not; paragraph 5.61 does not. The scheme that the Solicitor General describes is not the scheme in the Bill and the code. That is the problem.

--- Later in debate ---

[The Solicitor General]

You are right, Mr Owen; I stand corrected. I have lived my life speaking in the third person. I do not know why I—

[The Chair]

I think I can help you now. You are not in court; you are in Bill Committee.

[The Solicitor General]

That is the thing. The hon. Gentleman and I had this problem in a previous Bill Committee—I think I referred to the ministerial Bill team as “those who instruct me”. I have not made that mistake yet, but that is the path I am being led down.

[The Chair]

I know you get the point. Continue.

[The Solicitor General]

I do get the point.

[Simon Kirby (Brighton, Kemptown) (Con)]

Thank you, m’Lud.

[The Solicitor General]

We have not got to that stage yet, Mr Owen. One day, perhaps I will be entitled to address you in those terms, but not yet.

[The Chair]

Carry on.

[The Solicitor General]

Let me come back to the point. I disagree with the shadow Minister; I think the language is clear. I want to make it clear, on the record, that we do not seek, through the code of practice or through any sleight of hand in the drafting, to elide or blur divisions so that we can somehow get round the problem. If he and I were named on a warrant, another warrant would be needed in order to add another person, because the original warrant was targeted at named individuals: it did not have “and others unknown”. That is why we have introduced this provision to improve the position.

[Joanna Cherry]

Does it not ultimately boil down to the statutory interpretation of subsection (2)(a)? The Solicitor General, who is a very distinguished lawyer, considers that it does not permit adding a new person. David Anderson QC, an equally distinguished lawyer, has stated in written evidence that he considers it does. The shadow Minister, also a distinguished lawyer, has argued eloquently that he does not believe that the Bill or the code prevent adding a new person. What is required from the Government is absolute clarity, because of the wide ambit of these powers.

[The Solicitor General]

I am grateful to the hon. and learned Lady. I am not saying that another name cannot be added. With a wider original warrant that says “Persons A, B and others unknown”, of course an extra name can be added. If the warrant’s original terms of reference are narrow—if they just include A and B—adding person C requires applying for a new warrant. With the greatest respect, I cannot make it any plainer or clearer than that. An ordinary warrant cannot be turned into a targeted, thematic warrant; that is the point. If a new warrant is needed, it must be applied for, and then the double lock will work.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Will that not be an incentive to make all warrants wide? The Solicitor General is saying that, when the original warrant is narrow, additional warrants will be needed, but when it is wide, names can be added.

--- Later in debate ---

[The Solicitor General]

The hon. Gentleman makes an extremely good point. That is why we are putting clause 30 in—because there is a danger, under the existing legislation, that a warrant can be drafted quite widely without having to come back and amend it in order to add extra names. I take his point, but I do not believe the clause will create a perverse incentive; on the contrary, I think it is vital. For those who draft the terms of the warrants, it will focus their minds on getting it right in the first place, so that we do not end up with the sort of mischief that he quite rightly warns about.

[Jo Stevens (Cardiff Central) (Lab)]

If that is so important—we want to make an improvement—why can we not have what the hon. and learned Lady is asking for, which is some clarity? That would improve what is clearly a defective clause.

[The Solicitor General]

I take issue with the hon. Lady’s assertion that the clause is defective. I do not think it is. There are one or two other points that I was already going to reflect on, and I will come to them later in my speech.

Let us just come back to the point that I know the hon. Lady wanted to make. If we end up with an original application that is too wide, it will not get through the double lock, because the commissioner will say, “Hold on. This is neither necessary nor proportionate. It doesn’t pass the test of review. Sorry, Secretary of State, you’ve got it wrong.” That is the whole thing that we are in danger of forgetting. I can see that the hon. and learned Member for Holborn and St Pancras is desperate to get in, so I will give way.

[Keir Starmer]

I really am desperate, because I want—if possible—to have an answer to the question that I put before, which is this: if what the Solicitor General is now saying is right, why does clause 30 apply to a section 15(1) warrant, because that simply does not come within the formulation?

[The Solicitor General]

What I would say to the hon. and learned Gentleman is that I am afraid we are forgetting the context. The mischief that he wants to deal with is that somehow an applicant for a warrant has got something in through the back door—it is too loose, too wide, and modification therefore becomes, in effect, a way of getting round the whole system. I do not believe, given my understanding of both the code of practice as drafted and of the proposed legislation as drafted, that we will get near to that nightmare scenario.

A section 15 warrant can be about an organisation. The point that I am seeking to make is that we are already in the realms of thematics, and therefore if someone has a warrant that has been drafted specifically, the process must be started again if they want to include other individuals.

May I deal with the question of the ability to modify warrants themselves? I do not think anybody is saying there should not be an ability to modify warrants; that was not part of the recommendations of any of the Committees that we know about. Also, of course, such a change would be a very significant reduction in the operational effectiveness of the warrantry process. It would mean, for example, that it would be necessary to seek new warrants each and every time it was identified that an intercepted target got a new telephone or a new phone number. I am afraid that would slow down the process, and we think there is a significant danger that investigative and intelligence opportunities would be lost.

I am not accusing anybody on this Committee of wanting to do anything to endanger an investigation or indeed lives, but we have got to think about this issue in that context. Therefore, getting the balance right is quite clearly what we all want to do.

[Suella Fernandes (Fareham) (Con)]

I sat on the Joint Committee that took evidence from the professionals on the front line, so I know that that very point was emphasised time and again. To quote some of the senior police officers, they are struggling to keep up with the serious criminals and the terrorists, who change their numbers and set up new email addresses and new technological addresses and identities. It is absolutely vital that we do not tie the hands of the police even further.

[The Solicitor General]

I thank my hon. Friend for the work she did with other colleagues on that important Committee. Of course, the context is that applications will be made on the basis of a warrant that has itself already gone through the double-lock procedure and that has already passed the tests that we know will be applied—that it is necessary and proportionate in the particular context of the case that is being dealt with.

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

I wanted to emphasise that point. If a warrant has in the first instance been granted, it has met the tests of necessity and proportionality, and if a telephone number attributed to a person is added, it seems to me that the purpose of the warrant that was originally granted by the Home Secretary and the judicial commissioner does not change. Am I correct in my understanding of that?

[The Solicitor General]

My hon. Friend is absolutely right, and to try to manipulate this process to undermine that important procedure would be immediately spotted as a misuse of the processes and the safeguards that we are incorporating into this Bill.

I want to deal with the practicalities because, tempting though it is to impose a requirement on a judicial commissioner to authorise the day-to-day or sometimes minute-by-minute tactical operation of a warrant, it would be unnecessary and operationally damaging. There must be an element of agility when operating the system of investigation and there is real concern that we would fail to do the job of detecting crime and making sure the interests of everyone we represent are protected.

Ordinarily, such modifications will be made by a senior official in the warrant-granting Department, but when, for example, the identity of a gang member becomes apparent only in the middle of the night, it is right that the intercepting agency should be able to make the modification. That deals with the point about the fast-moving threat and the immediacy of the situation.

I will deal with as many as possible of the points the hon. and learned Gentleman raised, starting with the minor rather than major modifications in amendment 69. The amendment would prevent either the head of an agency or a senior official within that agency from making a minor amendment. We are dealing with minor modifications relating to adding a new communication address for warranted targets. An example is MI5 discovering a new mobile telephone number for a warranted target who is plotting to kill someone. The Bill enables the intercepting agency—MI5 in this case—to make the minor modification to the warrant, which will have been through the double-lock procedure, and to add that new mobile number. The danger of the amendment is that it would remove the ability to act swiftly to get coverage of the new subject’s communications. With respect, I do not think it is necessary because the Secretary of State and the judicial commissioner will already have considered the necessity and proportionality of targeting interception against the individual. I will not repeat the point, but it is important for public safety.

On parliamentary and legal privilege, I have already indicated that a major modification would not be sought to a warrant against a Member of Parliament or in relation to any warrant that names a specific individual. The code of practice makes it crystal clear that major modifications can be made only to warrants that apply to a group of persons or an organisation.

[Keir Starmer]

I am grateful for the way the Solicitor General is explaining how the Government intend the modifications to apply. He says they would not be used in that way for legal professional privilege and Members of Parliament, but he cannot say they could not be. If I have missed it, I will sit down sharpish, but I do not think there is anything on legal professional privilege or MPs in the modification parts of the code of practice. It is silent on that. There is no guidance.

[The Solicitor General]

What I am trying to do is to explain that there is no difference for any member of the public. If the warrant is specifically named, it cannot, as I have explained, use the modification procedure to try to catch other people, whether journalists, Members of Parliament or lawyers. Rather than constantly seeking carve-outs, it is far better to have a general principle about specificity and the danger that the hon. Member for Paisley and Renfrewshire North raised.

[Simon Hoare (North Dorset) (Con)]

So that the position is clear in my mind—I am not entirely sure about it—is the Solicitor General saying that, if new people are added to a warrant without a fresh warrant being applied for, they would have to be related to the event, occasion or surveillance that the original warrant was about? Is it correct that 32 new people from different parts of the country could not just be added if they were not linked to the matters for which the warrant was given?

[The Solicitor General]

That is right. The word “thematic” gives it away. I am afraid it is clear that the sort of scenario my hon. Friend paints is just not one that would be entertained in the initial application to the Secretary of State and the judicial commissioner.

--- Later in debate ---

[Victoria Atkins]

Am I correct in understanding that there is also a further oversight provision, namely the general oversight provisions of the Investigatory Powers Commissioner and the other commissioners under part 8 of the Bill? They have main oversight functions to look at how the powers are being exercised generally, as well as in every single double lock instance.

[The Solicitor General]

My hon. Friend is quite right about that, and I think commissioners would be concerned if for some reason there was an inappropriate overuse of mechanisms such as the one in question, which might appear in future evidence. I believe that we are getting the balance right and therefore the review will, I think, be a useful backstop, but nothing more, I hope.

[Joanna Cherry]

The Solicitor General has just said he thinks the Government are getting the balance right, but he has also said he will take the matter away and look at it carefully. When he does that, will he also look at the evidence of Sir Stanley Burnton, who told the Committee that he was concerned that substantial modification could be made to a warrant under the Bill with no judicial approval or even notification that names had changed?

[The Solicitor General]

I am very well aware of the evidence of Sir Stanley, which is why I have couched my remarks in the way I have. It is of course important to balance what he said against the view of his predecessor, Sir Anthony May, who in the 2015 annual report said:

“A case could be made however, that it would be appropriate to use thematic warrants more widely against, for example, a well-defined criminal or terrorist group working for a common purpose.”

I have said what I have said: my thoughts today are that the clause is perhaps getting an unfair battering. However, I listen to everything that is being said, including the hon. and learned Lady’s remarks.

Amendment 95 deals with the question of whether the Bill should require necessity and proportionality with respect to the consideration of minor modifications. I am going to think about it. It is a reasonable point and we may be able to return to it on Report.

To conclude, I think that, in the round, the Government have set out our position clearly. We will consider two points that have been raised, in particular, which I have addressed; but in general terms, while I will resist any amendments that are pressed to a vote today, I want more time to reflect. I hope that that will give Members an opportunity to reflect as well. For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I am grateful to the Solicitor General for taking the time to set out how he understands the process will work. As will be clear from our exchanges, my concern is that the comforting way in which he set out how the modifications process is intended to work is not reflected in the drafting of the Bill. Nevertheless, I have listened to what he said about considering the matter further.

At one point during the submissions he just made, he said that the word “thematic” made everything clear. My point is that the word “thematic” is not in the Bill. I would like the Solicitor General to think about whether the provisions could be improved by an amendment that made it crystal clear that the power is intended for modifications to themed warrants and not to other warrants. It may not be quite as simple as that, but that would certainly reflect the gist of what the Solicitor General said.

[The Solicitor General]

As I have said, I will take that away and consider it.

[Keir Starmer]

I am grateful for that. To be clear, I accept that in urgent cases there needs to be a process so that the security services, the police and others are not inhibited from doing what they need to do in real time and fast, but what we are discussing is not an urgent modification process. Again, it is about restricting the scope.

I was going to push the amendment to a vote, but I have been mulling it over in my mind and have decided that I am going to withdraw it in the spirit of the Solicitor General’s approach.

[The Solicitor General]

It is good to remind ourselves that the codes of practice have been published in draft and we have ample opportunity to revisit them to make the language even better. I hope that that helps the hon. and learned Gentleman.

[Keir Starmer]

I am grateful for that intervention. This is one of those matters on which we probably need to do as much of the work now as possible, because when the code finally comes back for a vote one way or the other, if there is a deficiency over an issue such as this, we will be put in the invidious position of voting down the whole code because we cannot change it. I am very happy to work with the Solicitor General to set out our concerns even more clearly and to see whether we can make improvements. I doubt that all my concerns would be met, but we might be able to draft a vastly improved model. With that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Joanna Cherry]

I was minded to push for a vote on clause stand part, but given what the Solicitor General has said and the very detailed arguments made by the hon. and learned Member for Holborn and St Pancras, I am content not to push the matter to a vote at this stage. Like the hon. and learned Gentleman, I would be very happy to work with the Solicitor General and the Government in looking at this clause.

[The Solicitor General]

I welcome the hon. and learned Lady’s remarks. They are noted, and I am sure we will be able to work on this constructively. I intend to make no more remarks for fear of repeating the observations I made a moment ago.

Question put and agreed to.

Clause 30 accordingly ordered to stand part of the Bill.

Clause 31

Approval of major modifications made in urgent cases

Question proposed, That the clause stand part of the Bill.

[Joanna Cherry]

Clause 31 is linked to clause 30 and I am minded to oppose it, but I shall not do so at this stage as I would like to see what proposals the Government come back with.

[The Solicitor General]

I am obliged to the hon. and learned Lady.

Question put and agreed to.

Clause 31 accordingly ordered to stand part of the Bill.

Clause 32 ordered to stand part of the Bill.

Clause 33

Special rules for certain mutual assistance warrants

Question proposed, That the clause stand part of the Bill.

[Keir Starmer]

No amendments have been tabled, and I do not oppose the clause, but I have a question that I would like the Solicitor General to deal with now, or at some other convenient point. In any event, I understand that these warrants are not particularly common.

Clause 33(1) makes it clear that the provisions apply predominantly where the subject of interception is outside the United Kingdom, and it effectively allows for sign-off at the senior official level. Notwithstanding that the subject is outside the United Kingdom, do the measures permit interception involving individuals in the UK or the British Isles if they are in communication with the subject? I ask for clarification, because I cannot find an answer myself.

[The Solicitor General]

I am happy to clarify that. The position is that if the Secretary of State or a senior official acting on behalf of the Secretary of State believes that a person, organisation or set of premises named or described in the warrant as the subject of the interception is in the United Kingdom, that person must cancel the warrant. I hope that that answers the question.

[Keir Starmer]

It is probably my fault for not putting the question clearly enough. I accept that in relation to the target, but the warrant will cover others than the target. Can the Minister clarify what protection there is under this procedure for people in this country who, although they are not the target, might come within the warrant?

[The Solicitor General]

What I am trying to deal with is anybody within the warrant, whether person, premises or organisation. If they are within that, they will be covered and it will have to be cancelled. I hope that that gives the hon. and learned Gentleman some reassurance.

Question put and agreed to.

Clause 33 accordingly ordered to stand part of the Bill.

Clause 34

Implementation of warrants

[Keir Starmer]

I beg to move amendment 252, in clause 34, page 28, line 37, at end insert—

“(4A) Subsection (4) shall not apply where the person outside the United Kingdom is established for the provision of services in a country or territory with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”

This amendment establishes international mutual assistance agreements—as recommended by Sir Nigel Sheinwald and currently under negotiation between the UK and US—as the primary route by which UK agencies obtain data from overseas CSPs. It would continue to enable the imposition of warrant on CSPs in non-MLA countries.