Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Tuesday 14th September 2021 Commons Chamber

[Robert Buckland]

My hon. Friend was himself a practitioner of many years’ standing. I assure him that we are using every tool available—including remote hearings, bringing back judges who have recently retired and, indeed, harnessing the entire legal profession—to deal with the number of cases before the courts. The restriction on sitting days has been lifted and colleagues in Her Majesty’s Courts and Tribunals Service are working tirelessly to deal with the case load.

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

May I return to the case of the female Afghan judges, which I raised yesterday with the Lord Chancellor’s Home Office colleague, the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle (Victoria Atkins)? A female former Afghan judge who escaped two assassination attempts by the Taliban and is now a British citizen contacted me at the weekend to explain the very real and immediate danger that her colleagues face, particularly from dangerous criminals and terrorists who have been released from prison. I am bringing her into Parliament at 5 pm this evening to meet informally with the Justice Committee; will the Lord Chancellor, or perhaps one of his junior colleagues, come to that meeting and meet this lady to hear at first hand how desperate the situation really is?

[Robert Buckland]

I will of course make sure that my diary is adjusted so that I can do that. The hon. and learned Lady can rest assured that I am getting emails from her colleagues directly to my parliamentary account. These are harrowing tales of harrowing experiences, which is why I meant what I said in my answers earlier. I am very grateful to the hon. and learned Lady.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Tuesday 29th June 2021 Commons Chamber

[Robert Buckland]

I thank my hon. Friend for speaking so strongly on behalf of his constituents. Colin Pitchfork’s offences were the gravest of crimes, and the families of Lynda Mann and Dawn Ashworth still live with the pain that he caused. The independent Parole Board’s role is to assess whether he is safe for release, rather than whether he has been punished enough. I understand why this decision has affected public confidence. It has been reviewed by officials in my Department, and we found arguable grounds that the decision was irrational, so I have asked the Parole Board to reconsider it using the mechanism that my hon. Friend rightly identified.

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

Can the Secretary of State tell us why the Ministry of Justice has left the Stonewall Diversity Champions scheme? Can he reassure me that his Department will continue to respect the rights of all its LGBT employees, and indeed the rights of all those with protected characteristics, including women and those who hold gender-critical beliefs?

[Robert Buckland]

I am grateful to the hon. and learned Lady for that question. I can absolutely assure her that the rights of LGBTQ+ people will be respected, honoured and celebrated by my Department. We are taking the fullest and most enthusiastic part in Pride Month, which of course is now. The issue with regard to Stonewall was simply this: my officials and I were no longer convinced that the particular scheme that we had taken part in was the right use of public money. There were concerns about the direction of that organisation, which has done so much to advance the cause of people of an LGBT+ orientation. It was with great sorrow and regret that that decision was made, but I assure the hon. and learned Lady that the underlying commitment to and passion for those issues absolutely remains.

End-to-end Rape Review

Debate between Robert Buckland and Joanna Cherry

Monday 21st June 2021 Commons Chamber

[Robert Buckland]

My right hon. Friend posits a very interesting point about the merits of perhaps a more inquisitorial or consensual system than the adversarial system, but I remind him—of course, he was a practitioner as well—that allegations of a criminal nature have to meet a high standard of proof, and the burden of proof is on the prosecution in these cases. There is no getting away from that, which is why, progressively over the years, we have done everything we can to improve and to allow the best evidence to come forward from complainants through the use of special measures, remote technology and, indeed, the TV link, which has been around for 30 years. I want to go further with regard to that and make sure that evidence can be dealt with as early as possible. I will no doubt have further discussions about this issue with him, but at this stage I believe that we can seek improvement through the existing system while, as I say, dealing with some of the unfortunate consequences to which he rightly alludes.

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

This review applies to England and Wales only, but Scotland faces similar challenges. In 2009 I was privileged to be one of the first specialist sex crimes prosecutors in Scotland’s national sex crimes unit, and I am looking to its work being rejuvenated under the leadership of the Lord Advocate, my very dear friend Dorothy Bain QC. Does the Lord Chancellor agree that it is imperative for data accuracy, and for trust in official statistics, in public policy, in media reporting and in research and public bodies that the sex of those directly charged with rape or attempted rape is accurately recorded?

[Robert Buckland]

I join the hon. and learned Lady in her remarks about the Scottish system. I congratulate the new Lord Advocate and look forward to meeting her. As I have always said to the hon. and learned Lady, there is much that we can learn from the Scots and, I know, much that the Scots learn from England and Wales with regard to the prosecution of offences. [Interruption.] Oh, she must readily accept that. We were far ahead of the Scots with regard to rules on corroboration, for example. But it is not a competition; it is all about us learning jointly as part of our United Kingdom. With regard to the accurate reporting of gender, clearly the definition of rape itself will tell us about the sex of the perpetrator. That, in itself, should be the clearest indicator of the sex of the person who perpetrates these crimes. No doubt she and I will talk about this matter further. I think I know the drift of her question.

Independent Review of Administrative Law

Debate between Robert Buckland and Joanna Cherry

Thursday 18th March 2021 Commons Chamber

[Robert Buckland]

My hon. Friend makes a very proper point, and one of the important functions of judicial review is for the courts not just to opine on the legality or otherwise of the decision, but to help local and national Government understand better how to make those decisions in the first place. I readily take the point that there are still far too many outcomes that result from flawed decision making, which is why judicial review is such an important principle. My hon. Friend will, I am sure, be particularly interested in the proposals in the consultation about procedural reform, which are designed to try to streamline, simplify and make judicial review more accessible for organisations and individuals who seek it. But in the first instance my aim is to try to ensure that these disputes are resolved before the need for litigation.

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

When this review was announced I corresponded with the Lord Chancellor, reminding him that our independent system of civil justice in Scotland is protected by article 19 of the treaty of Union and devolved to the Scottish Parliament, so I welcome the assurance he has given today that his proposals going forward will apply to England and Wales only. As it is my birthday, will he indulge me by joining me in celebrating another victory for Scotland’s independent legal system, which of course in 2019 led the way in ruling that the Prime Minister’s Prorogation of Parliament was unlawful?

[Madam Deputy Speaker (Dame Rosie Winterton)]

Happy birthday.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Tuesday 8th December 2020 Commons Chamber

[Robert Buckland]

I am grateful to my hon. Friend, and I understand the concern that he outlines. Of course, the Supreme Court does not of its own volition investigate matters. It hears cases and answers the questions before it on arguable points of law of general public importance. However, as I have already said, I think it is important that we look again at the balance. As a full-throated supporter of an institution that brings together the three jurisdictions of our United Kingdom, I want to make sure that its future is indeed a secure and a bright one.

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

The terms of reference for the Government’s review of the Human Rights Act 1998, which were announced yesterday, include the relationship between domestic courts and the European convention on human rights. But of course human rights themselves, as opposed to the Act, are not a reserved matter, and Scotland’s courts play an important role in supervising human rights protections under the Scotland Act 1998. So can the Lord Chancellor give me a cast-iron guarantee that the British Government are not planning to interfere with the competence of the Scottish Parliament in respect of human rights and the jurisdiction of Scotland’s separate legal system in enforcing human rights protections?

[Robert Buckland]

I am happy to assure the hon. and learned Lady that the terms of reference have been carefully couched to make it clear that we have distinctive contexts and natures in each of the jurisdictions, and that they will be considered where that is necessary. I am also content that where there are particular questions on devolved matters or of a devolved nature, the independent review will be approaching or inviting engagement from all appropriate parties. Of course, it is only the first stage in making recommendations. I can assure her that any proposals that will come forward will of course involve the fullest consultation with the devolved Administrations and, indeed, of course the fullest respect for the devolved settlement.

--- Later in debate ---

[Robert Buckland]

I am grateful to my hon. Friend. I know that he met my colleague the Minister of State for Prisons and Probation at the end of November to discuss the issue of the consultation. I know the site well, having visited both Grendon and Spring Hill, and I pay tribute to the staff and, indeed, to the community for supporting the prisons that exist in that part of his constituency. We are considering all comments and suggestions sent to us through the consultation before we submit any outline planning application. I can assure him that the local community will also have an opportunity to provide further feedback once a planning application is submitted. I am happy to extend the public consultation and my officials are in communication with the local council regarding that.

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

Back to the independent review of the Human Rights Act. The Lord Chancellor has said that, after 20 years, it is time to see whether the Act is working effectively, but the terms of reference do not actually contain any reference to an analysis of whether it is working effectively. Recently the Joint Committee on Human Rights found that most black people living in the United Kingdom believe that their human rights are not equally protected compared with those of white people. That is a shocking finding. Does not that finding alone justify a proper examination of whether the Act is working effectively and, if so, why is that not in the terms of reference?

[Robert Buckland]

The hon. and learned Lady knows that I gave evidence to the Committee of which she is a member about a week or so ago and acknowledged the important point made by the Committee. I think it was important for us to set up a very focused review as to the machinery of the Human Rights Act. It is not about the rights themselves; it is about the way in which they interact with our domestic law and the interplay, therefore looking in particular at sections 2, 3 and 4, for example, of the Human Rights Act. However, I am sure that these wider issues will become part of the debate as we see the recommendations come forward and as this place has an opportunity to play its part in those deliberations.

Courts and Tribunals: Recovery

Debate between Robert Buckland and Joanna Cherry

Thursday 3rd December 2020 Commons Chamber

[Robert Buckland]

I am grateful to my hon. Friend. First, with regard to a multi-year settlement, it would not be right for me to prejudge what the decision of the Chancellor might be on that. The important decision had to be made this year to have a one-year settlement for the obvious reasons of the covid outbreak and the fact that, rightly, there was not a fiscal event—namely, a Budget. I will leave that decision ultimately to the Chancellor. However, my hon. Friend can be reassured that the work being done within the Department is indeed looking beyond one year only and coming up with evidence-based arguments and proposals that lead on to longer-term investment. For example, he will see in the capital programme not only a welcome £105 million extra for court maintenance but the multi-year prison capital programme, which will make a huge difference in terms of modern conditions in our prisons.

With regard to the Crown courts, my hon. Friend is right to draw attention to the figures. The figures for Crown court statistics are populated both manually and by automation. Therefore, they take some time to fully settle down. However, I am particularly encouraged by the figures relating to effective trials: trials that end up being “cracked”, as they say, with a guilty plea on the day; and trials brought into the court by the judge just before trial, or a week before trial, where guilty pleas have been tendered. The overall figures I am looking at now through November show a very encouraging increase in that overall number, getting us much closer to the pre-covid baseline. It is not there yet, but if those trends continue, we can get to that pre-covid baseline on trials, I think, in the new year. Of course, that allows us to start to make real progress on the rest of the case load.

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

May I also thank the Lord Chancellor for advance sight of his statement?

These matters are, of course, largely devolved to Scotland, where the impact of the pandemic is being felt just as it is in jurisdictions across the world. My colleagues in the Scottish Government continue to work with partners, including the Scottish courts and prosecution services, victims’ groups and the legal profession, to identify the best possible way to deal with the problems that arise from the pandemic. To facilitate social distancing, remote jury trials are taking place across Scotland in the Sheriff courts as well as in the High Court. Additional funding for those was announced back in October. It was pleasing to hear Scotland’s second most senior judge, the Lord Justice Clerk Lady Dorrian, say that there has been an excellent collaborative effort across the justice sector in Scotland, which will increase court capacity in an environment that is safe for all participants.

May I ask the Lord Chancellor something about sexual offences? The European Court of Human Rights has held that the right to an effective remedy means that the state must ensure that sexual offences are investigated and prosecuted effectively, and that the state must also avoid undue delay in getting those cases to trial. Historically, Scotland has very strict time limits and I know that even during the pandemic this responsibility of effective remedy and speedy resolution is one that the Scottish Government take very seriously. Can he confirm that the UK Government take it equally seriously and are having regard to our obligations under the Strasbourg convention in this respect?

Turning to employment tribunals, they of course deal with reserved issues and are UK-wide. I want to raise with the Lord Chancellor the issue of the sharp rise in employment tribunal applications during the pandemic. This increase has gathered pace during lockdown, which tends to suggest that the impact of coronavirus has had a direct effect on the number of claims that are being made to employment tribunals. This has, of course, been an incredibly difficult time for business, but unfortunately there appears to be a trend of employers who are not following correct redundancy procedures, and this is only likely to result in more unfair dismissal claims. What can the Lord Chancellor do to address the increased strain on the tribunal system that this will create?

Finally, genuine mistakes around limitation periods for making an application to an employment tribunal can result in individuals being barred from seeking justice. That can happen in particular to claimants who are not entitled to legal representation or cannot afford it, and who may already have been involved in long and wearying internal grievance and disciplinary procedures. May I therefore ask the Lord Chancellor: is he still looking seriously at doubling the length of the time within which individuals can bring a claim to an employment tribunal from three to six months?

[Robert Buckland]

The hon. and learned Lady raised three distinct issues, which I will deal with in turn. First, with regard to obligations to victims of sexual offences, I reassure her that the way in which cases are prioritised in the courts in England and Wales very much bears in mind that important provision in terms of listing. I can give her the encouraging statistic for the most serious offences—sadly, many of them will be sexual offences—that just over 80% of those cases where someone has been remanded in custody have been listed for trial between now and spring 2021. Indeed, we keep a close eye on the progress or otherwise of other cases of a sexual nature. May I say to her that my officials and I have been watching the position in Scotland carefully and talking with colleagues in her jurisdiction about the approaches being taken? We are learning from each other in terms of development.

The position on employment tribunals is that, as I said, the number of cases being heard now has reached pre-covid levels as a result of the increased use of technology. That was an issue to begin with in the employment tribunal, but we are dealing with it. Of course, we have more money allocated next year for that further recovery.

If I may, I will come back to the hon. and learned Lady in correspondence on her specific point about limitation periods. I think I have dealt with all the matters. If I have not, I will write to her.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Tuesday 3rd November 2020 Commons Chamber

[Robert Buckland]

The right hon. Gentleman will know that on two occasions in public forums, I have made my defence of lawyers very clear and made it clear that physical and verbal attacks and the other types of threat that we might see are entirely unacceptable. He talks rightly about a very serious case that is ongoing—I do not think it would be right for me to comment directly upon it—but we all know the context within which we operate. I can assure him that I will continue in my resolute defence of lawyers. I will say this: I think there are times when there is a legitimate debate to be had, and I firmly believe that lawyers who are passionate about politics are best advised, if they wish to pursue politics, to do as he and I did, which is to get elected and pursue politics here or in other democratic forums.

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

The Home Secretary’s remit includes responsibility for making sure that all our communities are kept safe and secure. On 7 September, a man wielding a knife entered an immigration lawyers’ office in London and launched a violent, racist attack. In mid-September, counter-terrorist police from SO15 warned the Home Secretary that it was suspected that a far-right extremist had attempted to carry out a terrorist attack at a solicitors’ firm in London, yet in early October at the Tory party conference, she went on to intensify her anti-lawyer rhetoric. I am not asking the Lord Chancellor to disclose the precise details of private conversations, but can he confirm newspaper reports that prior to her speech, he warned the Home Secretary against using this sort of language? If she will not listen to him, will he consider his position?

[Robert Buckland]

I am grateful to the hon. and learned Lady for the way in which she put her question, but I have to repeat again that it would be invidious of me to repeat private conversations. She knows that I have been publicly on the record twice in the last month making my position very clear and condemning attacks. I think she would agree that we all need to be careful, as lawyers, about a matter that is currently sub judice and within the criminal process. Therefore, I think it is best not to try to draw direct links at this stage without knowing more about the evidence, but I reassure her that I will continue to do everything I can to make sure that the tone of the debate is right and that passions are cooled when it comes to talking about the important role of lawyers.

[Joanna Cherry]

I reiterate that I am not asking the Lord Chancellor for the precise details of conversations or, indeed, to comment on an ongoing case. I am asking him about the general advice that he has given to his colleagues in relation to his duties and responsibilities regarding the rule of law, because, after the Home Secretary’s speech, the Prime Minister went even further in his conference speech, declaring that he would prevent

“the whole criminal justice system from being hamstrung by…lefty human rights lawyers and other do-gooders.”

I ask the Lord Chancellor again: are newspaper reports that he spoke with the Prime Minister in advance of that speech correct? And did he tell the Prime Minister about the attack on the immigration lawyers’ offices and the warnings from counter-terrorism police to the Home Secretary about the dangers of inflammatory language against lawyers?

[Robert Buckland]

I can assure the hon. and learned Lady that the information about the serious allegations about the attack has been communicated to the appropriate Ministers and that everything that I have done and will continue to do is entirely consistent with my duty. Although, sadly, it might be the province of previous and current Prime Ministers to make provocative and sometimes lively comments about the legal profession, it is not the job of the Lord Chancellor to police every jot and tittle. I will continue to make sure that we get the tone of the debate right and that where we can improve on our language, we will do so.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Tuesday 22nd September 2020 Commons Chamber

[Robert Buckland]

I really find it extraordinary that the right hon. Gentleman brings the code of conduct into these matters. Like him, I am acting as a Member of Parliament. I am acting as a Minister in the Government—[Interruption.] I am not a Law Officer; I am the Lord Chancellor. The Law Officers of this country are the Attorney General, the Solicitor General and the Advocate General for Scotland. I do not give legal advice to the Government. I am not a Law Officer.

However, every member of the Government is obliged to follow the rule of law. It is very clear. I take a particular oath to uphold that and to defend the judiciary. As I have explained, I have absolutely no qualms about what has been happening. I have worked extremely hard to make sure that this House is fully involved. I say to the right hon. Gentleman that the idea that the passage of this Bill is a breach of UK domestic law is just plain wrong, and to misquote me is unhelpful, misleading and damaging, frankly.

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

The Bill affords the United Kingdom Government the power to breach obligations that they freely entered into less than a year ago, rather than employ the dispute mechanism that they agreed to. When Lord Keen resigned as Advocate General, he wrote to the Prime Minister that he found it increasingly difficult to reconcile what he considered to be his obligations as a Law Officer with the Government’s policy intentions. The highly respected former Attorney General the right hon. Dominic Grieve has said that the Lord Chancellor’s position is even more clear cut than that of the Law Officers, and that the Lord Chancellor has taken

“an oath of office to uphold or protect the rule of law. The rule of law includes international law…his position is untenable.”

Are both these senior distinguished QCs, Lord Keen and Dominic Grieve, wrong? If not, why is the Lord Chancellor still in office?

[Robert Buckland]

The hon. and learned Lady is right to draw attention to Lord Keen. I pay tribute to his long service in the Government as Advocate General for Scotland, and I was sorry to hear of his resignation. I do not believe that it was necessary, bearing in mind the important changes that have been made to the Bill.

I think that the position is now very clear. The hon. and learned Lady talks of breach, but as I will remind the House again, the eventuality or potential use of these clauses would be only if the EU was in material breach of its obligations, and therefore we would be facing a breakdown. I remind her again that of course we will use the withdrawal agreement mechanism and the arbitral mechanisms within the provisions of the withdrawal agreement, and indeed the Northern Ireland protocol, too. It is not a question of us abandoning our obligations; we will use them, but this is the “break glass in case of emergency” provision that underlies and will protect the United Kingdom’s position if we face such a breakdown.

[Joanna Cherry]

Lord Keen’s resignation was in keeping with the highest traditions of the Scottish Bar. The Lord Chancellor has said that he wants us to consider his own actions as an MP and a Minister rather than as a lawyer, so I put this to him. In 2018, in the Gulf case, England’s Court of Appeal ruled that a Government Minister’s overarching duty to comply with the law includes international law and treaty obligations, even though these are no longer explicitly stated in the ministerial code. This Bill gives the Lord Chancellor and other Ministers the power to run a coach and horses through their obligations under the withdrawal agreement. I know that Conservative Members do not like hearing that, but that is the reality. In the light of what the English Court of Appeal has said, just how is this Bill compatible with his oath as the Lord Chancellor to uphold the rule of law?

[Robert Buckland]

As I have said to the hon. and learned Lady, the contingency that underlines the coming into force and use of these powers is a very narrowly and clearly delineated one. I do not believe, as I have said in public, that we are at that stage, and I do not believe we will get to that stage, if both parties renew their efforts, act in good faith and double down on making sure that we get a resolution. It would have been far easier for us to avoid the issue, to pretend that there was not going to be a problem, and then to hit the new year with an avalanche of difficulties when it came to Northern Ireland and its relationship with the rest of the United Kingdom. Members of this House would have rightly criticised us, and, frankly, we would have been in an indefensible position. This is a tortuous process. I reject her allegations—her assertions. We will continue to govern responsibly and consistent with our obligations under the rule of law.

Sentencing White Paper

Debate between Robert Buckland and Joanna Cherry

Wednesday 16th September 2020 Commons Chamber

[Robert Buckland]

I am grateful to the Chairman of the Justice Committee. We all know his long and deep knowledge of the system as a practitioner. He is right to remind us of the purposes of sentencing. He will see in the White Paper a lot of reference to public protection issues—protecting the public from harm, but also protecting the public from crime. The two go together, and one is served, I would submit, by effective prison sentences, while the second is served by rehabilitation through the community options that can make such a difference with the right support.

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

I thank the Lord Chancellor for his customary courtesy in affording me advance sight of his statement. However, it is a little difficult to stomach rhetoric about how tough this Government are on law breakers when only a week ago a Minister stood at the Dispatch Box and told us that they intended to break international law, albeit in a limited and specific way. Even the Lord Chancellor seems to think that, when it comes to his Government colleagues, the rule of law can be watered down to allow law breaking that he finds acceptable.

I want to make it clear that in Scotland the law applies equally to everyone, whether they are a Government Minister or an ordinary member of the public. I wonder whether the Lord Chancellor agrees that it should be the same in England and Wales. That is where this sentencing White Paper applies; sentencing is devolved to Scotland. However, the position of the SNP is clear. We want to work hard with the UK Government and European friends to make sure that all communities in these islands are protected from terrorism and serious crime.

There are elements of the White Paper to be welcomed, including the offer of treatment for vulnerable prisoners with mental health and addiction problems, and the proposals to encourage courts to pass community sentences for less serious offences, following the Scottish model. However, I would express caution about giving whole-of-life sentences to teenagers. Expert evidence shows that young people are more likely to be open to rehabilitation. That is important for the public, because every time we manage to rehabilitate or deradicalise someone, it makes the public a little bit safer. Prisoners who know they will never be released have little incentive not to kill or maim not only other prisoners, but prison officers. I would like to know that the Lord Chancellor has taken cognisance of those factors. The Scottish Sentencing Council is consulting on its third draft guideline on sentencing young people. Are there any proposals to consult on this issue in England and Wales as well?

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Tuesday 9th June 2020 Commons Chamber

[Robert Buckland]

The right hon. Gentleman will be glad to know that I continue to look at that on a daily basis. The overall case load in the Crown Court is approaching just over 41,000. Before the crisis it was 39,000, so there has been a slight increase. Within that case load, the courts have managed a lot of cases that can be dealt with administratively and by way of plea, but that does leave a cohort of trials to be dealt with. Normally, 200 jury trials a week will be heard in England and Wales, and we are still dealing with a very small number. That will clearly tell him the scale of the challenge, but I can say to him that both the Lord Chief Justice and I are working together closely in order to scale up capacity, to look at court hours and the way the courts sit so that we can accommodate jurors and staff, and to do whatever it takes not just to manage that case load number but to bring it down as we go through the year.

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

The Lord Chancellor has a strong record of defending judicial independence, and I congratulate him on that. Does he agree that it is equally important that those in Government do not seek to influence the police or the Crown Prosecution Service in the exercise of their duties? Can he confirm that that is why he, unlike other members of the Government, refrained from tweeting in support of Dominic Cummings when there was a live issue as to whether Mr Cummings had breached the lockdown regulations and guidance?

[Robert Buckland]

The hon. and learned Lady will know that I refrain, in correspondence and, indeed, in statements or questions in the House, from talking about individual cases. I remind her and the House that, as Lord Chancellor, I will always act in a way that is consistent with the rule of law. The independence of the police and prosecutorial authorities has to be paramount, and that is something that I will absolutely uphold. My constitutional duties come first, and everybody within Government knows that full well.

[Joanna Cherry]

Perhaps the Lord Chancellor could share those thoughts with the Attorney General.

Upholding human rights is also an important part of the Lord Chancellor’s Department’s priorities. When the Minister for the Cabinet Office gave evidence to the Committee on the Future Relationship with the European Union recently, he made it clear that the Government still intended to amend the Human Rights Act 1998. Can the Lord Chancellor reassure us that any such amendments will not seek to abrogate domestic law giving effect to the European convention on human rights?

[Robert Buckland]

I can tell the hon. and learned Lady that, as part of our manifesto commitment, we have pledged to update the Human Rights Act, which is now 20 years old in terms of its operation. That is only the right and proper thing to do. I can absolutely assure her that our membership of the convention is beyond any doubt or peradventure. That will very much remain the case as we go through the negotiations with our friends in the European Union on the future relationship and, indeed, domestically as well. We are working on an important independent review into the operation of the Human Rights Act, and I will update the House when further details are available.

Counter-Terrorism and Sentencing Bill

Debate between Robert Buckland and Joanna Cherry

2nd reading & 2nd reading: House of Commons
Tuesday 9th June 2020 Commons Chamber

[Robert Buckland]

I absolutely accept and understand the motivation behind my hon. Friend’s intervention, and he makes such a recommendation not just as Chair of the Select Committee, but as a guardian of the principles of the rule of law, which, after all, is what we, as a nation, are trying to defend against those who would kill, shoot and bomb their way into power and influence. He can be reassured that this—if you like—reversion to the previous standard of proof is all about making sure that we have as agile a tool as possible, bearing in mind the rapidly changing nature of the terrorist threat that we face. It is vital that we make sure that, when applications for TPIMs are made, they can be done not only in such a way that there is clearly an evidential basis and those grounds exist, but in a way that means they can be effective and as rapidly implemented as possible. The focus of the TPIM and the number of people on it will change, adapt and evolve according to the constant and the changing nature of the threats.

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

I thank the right hon. and learned Gentleman for giving way. The point made by the Chair of the Justice Committee is very well made. Not only has the current independent reviewer of terrorism, Jonathan Hall QC, not recommended the change, but he has specifically questioned the basis for the change. So again, is the Lord Chancellor able to clearly articulate for us why this change in the burden of proof is necessary?

[Robert Buckland]

I am grateful to the hon. and learned Lady for her question. Indeed, in the lengthy answers that I am giving, I am trying to do just that. What I am trying to explain is—I know that she knows this—that the TPIM mechanism is not something that is entered upon lightly. It involves a high degree of resource and a high intensity of resource management. It is a self-evident truth that the resources of the state, however large they may be, are not infinite and therefore choices and priorities have to be allocated. What I can assure the House of is that of course every time we assess that the grounds are met and that there is a risk, we will act. That is what our security services do, day in, day out, for us. What I am saying is that the change in the threshold creates that greater agility. I accept that it will be a lower standard, yes, but the reason for that is to allow for greater flexibility when our operational partners come to apply them.    



I was talking about the importance of TPIMs’ use being proportionate. I believe that the annual review of TPIMs, which is going to be part of this process to qualify the question about their indefinite duration, strikes the right balance between the need for vigilance and control against the need for those basic civil liberties that we all guard jealously to be maintained. Let us not forget that where it is no longer necessary or proportionate to extend a particular TPIM for the purposes of public protection, that TPIM will be revoked. That check and balance is very much at the heart of the regimen that we are proposing in the Bill.

The Bill also amends legislation governing serious crime prevention orders. Those are civil orders imposed by the courts that protect the public by preventing, restricting or disrupting an individual’s involvement in serious crime, which of course includes terrorism. The Bill supports the use of these orders in terrorist-related cases by allowing counter-terrorism policing to make a direct application to the High Court for a serious crime prevention order. We are therefore streamlining that process. The independent reviewer of terrorism legislation has noted that these mechanisms are at the moment an under-utilised tool in terrorism cases, and I believe that by streamlining the process we will see a greater reliance upon them.

We are also adding the offences of breaching a TPIM notice and breaching a temporary exclusion order to the list of relevant terrorism offences that can trigger the registered terrorist offender notification requirements. Again, the independent reviewer has publicly confirmed his support for that change. The regime requires individuals aged 16 or over who have been sentenced to 12 months or more in custody for a relevant terrorism offence to provide certain information about changes in their circumstances, such as their address, to the police and to notify them of any foreign travel plans. Together, these changes strengthen our ability to manage the risk posed by those of terrorism concern in our community, including those who have been released from prison without a period on licence.

The Bill also reforms how we deal with terrorist offenders under the age of 18. We recognise, of course, that there is a separate sentencing framework for that category of offenders, and that it has distinct purposes and aims that differ from those relating to adult offenders. We have carefully considered which measures it would be appropriate to apply to under 18-year-olds in developing this proposed legislation. Although we remain firm in our aim to ensure that custody should be used only where absolutely necessary, it is a sad and inescapable fact that some young people are susceptible to radicalisation or to the adoption of extremist views, and that among those, there are a few who pose a very serious threat to the public.

The Bill will therefore ensure that the courts have the right range of tools at their disposal to deal with those under the age of 18 who commit serious terrorist or terrorist-related offences. We will do that by introducing a youth equivalent to the special sentence for offenders of particular concern. This will mean that, if convicted of terrorist offences serious enough to warrant custody, these offenders will serve a fixed period on licence once they have been released into the community. This will ensure that they receive an appropriate level of supervision. We are also replicating the changes to the extended determinate sentence to ensure better public protection from young terrorist offenders who have been assessed as dangerous. This removes Parole Board consideration of the two-thirds point for the most serious terrorism offences, and in the interests of public protection, it gives the courts the option to apply an extension period of up to 10 years on licence. I accept that this is an exceptional series of measures, but we are dealing with an exceptional type of offending.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Monday 27th April 2020 Commons Chamber

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

May I join others in welcoming the shadow Justice Secretary to his place?

The suspension of prison visits during the current crisis affects not just the welfare of prisoners but also their families and loved ones, who have of course been guilty of no criminality. The Scottish Government have committed to providing every prisoner in Scotland with a mobile phone that will be locked so as to enable outgoing calls to approved numbers only. Will the Ministry of Justice be able to match that commitment for every prisoner in England and Wales?

[Robert Buckland]

The hon. and learned Lady is absolutely correct to talk about the need for contact with families. I am pleased to say that as a result of investment that we have made, we have rolled out even more direct access to telephones across the prison estate in England and Wales. Wherever possible, we have—with controls, of course—issued telephones in-cell or very close to the cell that can be used safely by the prisoner. We have also provided £5 free PIN credit per week for every prisoner that allows for approximately 60 minutes of free calls.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Tuesday 25th February 2020 Commons Chamber

[Robert Buckland]

As well as introducing our important domestic abuse Bill, we are already committing more resources to rape crisis centres. For example, rape and sexual abuse support services have had their funding increased to £32 million over the next three years—an increase of over 50%—which will provide free advice, support and counselling at 94 rape support centres, which is more than ever before. That is encouraging progress.

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

On International Women’s Day last year, Ireland became the 34th country to ratify the Istanbul convention, but unfortunately the United Kingdom is one of only six countries yet to do so. Can we take this as an indication of where the UK intends to position itself on the world stage in terms of rights and protections of citizens post-Brexit?

[Robert Buckland]

I can reassure the hon. and learned Lady that not only is the United Kingdom committed both internationally and domestically through legislation—I know that she actively supported that back in 2017—to implement the convention, but in many respects we are ahead of the obligations that the convention places upon us, and we are among the leaders of the world in our support and in our approach to violence against women and girls and the victims of sexual abuse. We should not be complacent about that, but it is worth reminding ourselves of how far we have come.

[Joanna Cherry]

That is all very well, but the right hon. and learned Gentleman’s own Government’s report identified two major respects in which UK law has yet to comply sufficiently to make us able to ratify the convention. The legislation to which he refers, introduced by my former colleague Dr Eilidh Whiteford, was introduced three years ago, so what we need to know today is what is stopping the UK Government following the lead of the Scots and the Irish. Is it by any chance the requirement to support migrant women experiencing domestic abuse, who often find it impossible to access emergency protection because of the no recourse to public funds condition? His own Government identified that as one of the two major problems. What will be done about that, and when?

[Robert Buckland]

The hon. and learned Lady knows that in response to the Joint Committee on the Draft Domestic Abuse Bill the Government are taking careful account of the evidence that has been provided on that specific issue. In previous annual reports we have indicated compliance with the articles, but we have to make sure that the concerns raised in the Joint Committee are properly addressed. We will no doubt have an opportunity with the forthcoming Bill to debate these issues, and I look forward to engaging with the hon. and learned Lady on the subject.

Streatham Incident

Debate between Robert Buckland and Joanna Cherry

Monday 3rd February 2020 Commons Chamber

[Robert Buckland]

I am grateful to my hon. Friend, the Chair of the Select Committee on Justice. It would perhaps be wrong of me to go into specific detail as to the regimen that applied in prison to this offender. I would make the general observation that the terrorist cohort is complex and difficult to assess, and if there is not engagement by individuals with the programmes on offer, the assessment of risk becomes a much more complicated exercise. I simply say that bearing in mind the exceptional nature of the terrorist cohort, exceptional approaches are needed.

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

May I start by extending my sympathies and those of the Scottish National party to those injured and terrorised by yesterday’s events, and by praising the security and emergency services? I am pleased that the UK Government are following the Scottish Government’s lead in ending automatic early release for the most serious offenders. The Lord Chancellor has said that he intends to introduce emergency legislation, making retrospective provision in relation to those sentenced before the law was changed. Will he assure me that the usual legal difficulties with retrospective legislation have been addressed to his satisfaction?

Sentencing is only a small part of the answer to terrorism, and what happens during the sentence is what matters. To date, deradicalisation and disengagement programmes have been largely “unfunded and poorly executed”. Those are not my views, but the views of Nazir Afzal, the former chief Crown prosecutor for the north-west of England, an experienced lawyer and a prosecutor worth listening to. He says that that has happened as a direct consequence of the decision by successive Tory Governments to cut funding to probation and other rehabilitation programmes. Of course, the costs of the sort of post-release police surveillance that we saw yesterday far outweigh the costs of adequate funding for preventive measures and deradicalisation. Does the Lord Chancellor agree with me and Nazir Afzal on that? Will he assure the House that in future sufficient funds and resources will be made available to deal with preventive and deradicalisation programmes in prison?

Finally, it was reported earlier today that an anonymous No. 10 source told Sky News that the system for dealing with terrorism has significant problems because of

“the shocking influence of lawyers on policy”.

I imagine that the Lord Chancellor does not share that view—[Laughter.] This is important. Will he join me in condemning those sorts of anonymous briefings? Does he agree that there is plenty of room to introduce robust anti-terrorism policies that are rule-of-law compliant?

[Robert Buckland]

I am grateful to the hon. and learned Lady for her remarks about the solidarity that we have across these islands with regard to terrorism.

Let me deal with her last point first. It is important to remember that we in this country stand for the rule of law and due process. That is what marks us out as different from those who rely on the bullet and the bomb—those who use indiscriminate and arbitrary means and methods to impose their will on us. If we stand for nothing else, we have to stand for the rule of law. That makes us better than them, it makes us different and it means that we have something worth defending. I hope that answers the hon. and learned Lady’s latter question.

On the first issue that the hon. and learned Lady raised, as I said, this is an exceptional situation. The issue of retrospective effect is of course a key factor. The important point is that we are talking about the administration of a sentence—the way it is dealt with, as opposed to its length or type. For that reason, it is entirely appropriate to look at the administration of a sentence and I would regard that as a reasonable approach.

The hon. and learned Lady asked about resources. I am happy to tell her that in the past several years, counter-terrorism funding has increased year on year. I repeat the point that I made to the hon. Member for Leeds East (Richard Burgon): resources will never get in the way of our dealing properly and robustly with those who pose a threat to us. The way in which we deal with terrorism continues to evolve, and programmes change and adapt according to the knowledge that we accrue. I will not pretend that we are in a state of grace when it comes to these things, because we are still learning, but make no mistake about it: this country is a world leader and many other states look to us as a beacon because of the way we deal with counter-terrorism and the particular threat that it poses.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Tuesday 8th October 2019 Commons Chamber

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

I thank the Lord Chancellor for speaking out in favour of the independence of the judiciary.

Lord Hope of Craighead, a former Deputy President of the Supreme Court and Lord President of the Court of Session, has pointed out that

“The Supreme Court justices were careful to explain in their judgment”

on the Prorogation case

“that they were not pronouncing on political questions. The issues with which they were dealing…were issues of law.”

Will the Lord Chancellor explain that to those in his party demanding a politicised appointment process for the judiciary?

[Robert Buckland]

I am grateful to the hon. and learned Lady. I treat the remarks of the noble Lord Hope with extreme gravity, bearing in mind his experience and knowledge. It always bears repeating that the judiciary do not have political motivations, and that case was no exception. Frankly, I think the matter needs no further debate. If we ended up with an American-style approval system, we would all be the poorer for it.

[Joanna Cherry]

Yesterday a Scottish court recorded the Prime Minister’s unequivocal promise to comply with his statutory duties under the Benn Act. The judge, Lord Pentland, said:

“it would be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the crown for the prime minister or the government to renege on what they have assured the court that the prime minister intends to do”.

Can the Lord Chancellor assure us that he will be impressing on the Prime Minister the grave consequences of ignoring that warning from a senior member of the Scottish judiciary?

[Robert Buckland]

I read the transcript of what Lord Pentland said with great interest. Of course, that matter is subject to appeal, and it would be wrong of me to speak about it in detail, but those comments are noted.

Northern Ireland Backstop

Debate between Robert Buckland and Joanna Cherry

Tuesday 19th February 2019 Commons Chamber

[The Solicitor General]

As usual, my right hon. and learned Friend tempts me down many paths that I dare not take, simply because this is a negotiation between the United Kingdom and the EU. We heard yesterday from my right hon. Friend the Secretary of State for Exiting the European Union, who has been to Brussels and held a productive meeting with Michel Barnier, and my right hon. and learned Friend the Attorney General has been playing an important part in these negotiations. May I reassure my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the Government remain determined to get on with the job at pace?

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

This morning, France’s Europe Minister, Nathalie Loiseau, said that there will be no renegotiation of the withdrawal agreement. In saying that, she was simply echoing what has been said repeatedly by Donald Tusk, Jean-Claude Juncker, Angela Merkel, Emmanuel Macron and Leo Varadkar. That was the position made crystal clear to the Select Committee on Exiting the European Union when we met Martin Selmayr on 4 February. He said that the most the EU would be prepared to contemplate was an additional legal instrument or a codicil to the agreement, which would incorporate the sort of assurances set out in the letter from Tusk and Juncker dated 14 January but which would not contradict or change the existing text of the agreement. Can the Solicitor General confirm that that is still the position of the EU and that there is no question of the withdrawal agreement being opened up and renegotiated in relation to anything, let alone the backstop? Will he confirm that it is clear that there will be no time limit or unilateral exit clause to the backstop? If his position is that he does not want to give this House a running commentary, why is the Attorney General supposed to be elsewhere today, giving a speech about what is proposed, not to this House, but to I know not who? Is it true that that speech has been cancelled? If so, why has it been cancelled?

[The Solicitor General]

May I assure the hon. and learned Lady, who expresses a deep interest in the Attorney General’s diary, that his plan is to make a speech about the issues, but it is not going to be some detailed exposition of a legal position, which he will bring to this House if appropriate? He has already shown an admirable willingness not only to address this House, but to comply with its orders, and I am sure he will continue to work in that spirit.

I am glad the hon. and learned Lady referred to the letter of 14 January, because it is important to remind ourselves that the Commission made it clear in that letter that it was determined to give priority to the discussion of alternative arrangements. That is very much part of the ongoing discussion. It would be somewhat difficult for me to commit the other party to the negotiation to a particular position. I have heard her comments with interest. I am here to speak on behalf of Her Majesty’s Government and our position is clear.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Thursday 21st June 2018 Commons Chamber

[The Solicitor General]

The hon. Lady makes a pertinent point. She will know that the Attorney General and I launched a review late last year ahead of some of the latest stories that have hit the headlines about the importance of disclosure. It has been a long-term issue, involving both the CPS and, notably, the police, but we are working closely to update and revise the guidelines to tackle the issues with which she and I are very familiar.

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

In Scotland, public legal education begins at school, because human rights are part of the curriculum for excellence, and the Joint Committee on Human Rights recently heard evidence that that is part of the reason for Scotland’s more positive public discourse about human rights. Has the Solicitor General had any discussions with his counterparts in the Department for Education about emulating Scotland’s education example south of the border?

[The Solicitor General]

Once again, I am grateful to the hon. and learned Lady for raising an interesting dimension. I have not had those conversations, but I certainly want to. The curriculum in England and Wales—England in particular—already includes citizenship, of which PLE can be a part, but I will take on board her observations. I am grateful.

Public Legal Education

Debate between Robert Buckland and Joanna Cherry

Tuesday 15th May 2018 Westminster Hall

[The Solicitor General (Robert Buckland)]

I will do that, Mr Streeter. It is a pleasure to serve under your chairmanship, as it was under Mr Pritchard’s. It is almost a challenge for me to fit into the few minutes I have, everything I want to say on a subject I have a long interest in and passion for.

I thank my hon. Friend the Member for North East Hampshire (Mr Jayawardena) for reminding us clearly and comprehensively about the unwritten contract, the Burkean principle that is so important to many of us, and for reaching into the present day by illustrating some of the excellent initiatives going on around the country. I will come back, if I may, to some of the observations made by the shadow Solicitor General and the hon. and learned Member for Edinburgh South West (Joanna Cherry), but I will begin by reminding everyone what public legal education, or PLE, is.

PLE provides people with vital awareness, knowledge and understanding of their rights and those of their fellow citizens. It builds their confidence and the skills that are needed to deal with the disputes that no doubt encroach on the lives of many of us, and it ensures effective access to justice. I was at the independent Bar for many years before I was elected to this place, and I played my part in the delivery of public legal education in schools and colleges in south Wales. I wanted to bring that experience with me into my role as Solicitor General. It is ever more important to ensure that the people of our country understand the law and their rights and responsibilities within it. Public legal education breaks down barriers of knowledge, circumstance and access. As we have heard, PLE is provided by myriad community-based organisations—youth workers and health workers, for example, and legal professionals themselves—all doing their part to ensure that particularly those people with social and economic disadvantages can still get the support they need.

The shadow Solicitor General made the observation that legal aid is a pillar of the welfare state. It is more than that; it is about access to justice. Both he and I, as practitioners, have seen Governments of various colours take legal aid measures that have resulted in reductions in overall eligibility, and the remarks of the hon. and learned Member for Edinburgh South West were particularly interesting in that regard. Frankly, I do not think that any Government have got it absolutely right. I could go into a long history lesson about how in 1949 only High Court family cases were eligible for legal assistance and that under successive Governments that assistance was enlarged to a point at which under the Thatcher Government—some would think this almost ironic—84% of the population of England and Wales had some form of eligibility for legal aid.

[Joanna Cherry]

An independent report published just a couple of months ago shows that 70% of the population of Scotland is eligible for legal aid, yet less is spent per capita on that aid than in England. With a bit of imagination, there could be wider availability of legal aid in England. Scotland shows that it can be done.

[The Solicitor General]

I am always interested in the hon. and learned Lady’s observations, but I am not sure whether 70% coverage is the right balance. I will consider with interest what she has said and study the issue more carefully, rather than making remarks that are not based on a full study of the evidence. I will, however, concede the point that public legal education is not some substitute or easy fix for eligibility for legal aid. It is a much more long-term approach, which focuses naturally on children and young people and is designed, above all, to give people the knowledge and the wherewithal to avoid the pitfalls of litigation and court proceedings in the first place. We have a very different aim in mind when it comes to spreading the provision of PLE. I pay tribute to all the organisations in Scotland that do so much work, the law clinics in particular, which the hon. and learned Lady mentioned—we have those in great measure too south of the border.

It is not just motherhood and apple pie; there is a statutory underpinning to public legal education in the Legal Services Act 2007 which, among its regulatory objectives refers to

“increasing public understanding of the citizen’s legal rights and duties”

and

“improving access to justice”.

It is not an option for the Government, or indeed any of the regulatory bodies, to neglect those objectives. I am glad that the Law Society, the General Council of the Bar and the Chartered Institute of Legal Executives here in England and Wales play their part in ensuring that PLE is spread as far and wide as possible within the professions. Both the Attorney General and I, as the pro bono champions of the Government, work closely with those involved in PLE and support initiatives to increase its profile and reach more members of the public.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Thursday 10th May 2018 Commons Chamber

[The Solicitor General]

I am interested in the work being done not only in Northern Ireland, but in Scotland, and I am a member of the inter-ministerial group that deals with these issues. We are working with, and obtaining as much information and learning as possible from, the devolved parts of the United Kingdom so that we can improve our approach. This is not just a question of crime; it is a question of health education, and if we deal with it in that way, we might start to crack the problem.

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

In Scotland, crimes involving a weapon are down by two thirds since 2007, and the Scottish Government’s whole-system approach to youth crime incorporates innovative approaches from the prosecution service in Scotland, including diversion from prosecution where appropriate. Will the Solicitor General follow Met Commissioner Cressida Dick in coming to Scotland to view the excellent work being done on knife crime there?

[The Solicitor General]

The hon. and learned Lady develops the point made by the hon. Member for Strangford (Jim Shannon), and I would be keen to learn more. I have already started that process by delving into the Scottish experience, and I am glad that the learning and experience in Scotland is being absorbed into thinking and policy development south of the border. I would be happy to take up the hon. and learned Lady’s invitation.

European Union (Withdrawal) Bill

Debate between Robert Buckland and Joanna Cherry

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[The Solicitor General]

I certainly can. First, we are not repealing anything. Secondly, the dog that has not barked in this debate is the European convention on human rights, which is much supported by both sides of the House, very much part of our law and a fundamental part of the underpinning of many of the human rights—

[Joanna Cherry]

rose—

[The Solicitor General]

I know that the hon. and learned Lady treasures and rightly places great value on those human rights. I give way to her.

[Joanna Cherry]

Can the Solicitor General confirm once and for all that reports that the Prime Minister wants to run the next Tory party general election campaign on a pledge to repeal the Human Rights Act and withdraw from the convention are incorrect? [Interruption.] Conservative Members roll their eyes and make a noise. I am giving him the opportunity to confirm that that is incorrect.

[The Solicitor General]

May I just calm the hon. and learned Lady? [Interruption.] Well, she is making a point that is frankly not the case. We have committed to supporting our membership of the European convention throughout this Parliament, and that is a position I entirely support.

[Joanna Cherry]

What about the next Parliament?

European Union (Withdrawal) Bill

Debate between Robert Buckland and Joanna Cherry

Committee: 8th sitting: House of Commons
Wednesday 20th December 2017 Commons Chamber

[Joanna Cherry]

The point I am seeking to make is that having vigorously resisted my amendment, which I tabled for the benefit of everybody living in the UK in relation to issues of certainty about the interpretation of retained EU law after exit day, the Government have now conceded some ground—they are going to provide that certainty for EU citizens living in the UK—so why, if it is good enough for EU citizens living in the UK, is it not good enough for UK citizens living in the UK? Perhaps even more importantly—this adds force to my argument—senior members of the judiciary, both current and retired, have very serious concerns that the wording in the Bill as it stands will involve them in having to make political decisions.

In the past few days, we have seen the kind of vicious opprobrium that can be levelled at those who are seen to have made political decisions on the constitution where the EU is concerned, and earlier this year we saw the level of opprobrium directed at senior members of the judiciary for applying the law. The judiciary’s concern, therefore, is very real. I am not here just to advocate for the judiciary; I am here to advocate for democracy, the separation of powers, and the protection of the constitution. I may well have, as my ultimate goal, an independent Scotland with its own written constitution, but as long as Scotland remains part of the United Kingdom I am very interested in preserving UK citizens’ rights and democracy in the UK as a whole and protecting the notion of separation of powers within the constitution.

The Government do not have to take my word for it. They should look very closely at the evidence given to the House of Lords EU Justice Sub-Committee on 21 November. Lord Hope of Craighead pointed out that clause 6(2), as presently drafted, gives them a discretionary freedom rather than an obligation. Lord Neuberger, the former President of the Supreme Court, said:

“Clause 6(2), as drafted—it is a matter for a judge whether, and if so in what way, to take into account a decision of the Court of Justice on the same point in the regulation or directive, rather than in our statute. The problem for a judge is whether to take into account diplomatic, political or economic factors when deciding whether to follow the decision of the CJEU. These are normally decisions for the legislature, either to make or to tell judges what to do. We talked about our system in this country of judges being given a wide discretion, but this is an uncomfortably wide discretion, because a judge will have to take into account, or in some cases will be asked to take into account, factors that are rather unusual for a judge to have to take into account and that have political implications. It would be better if we did not maintain this system of judges being free to take decisions into account if they saw fit, if they were given some guidance as to the factors which they can and cannot take into account. Otherwise we are getting judges to step into the political arena.”

The issue of how the judiciary are to be given guidance on the interpretation of retained EU law arises directly from the wording of schedule 5 and takes us back to the wording of clause 6(2).

[The Solicitor General (Robert Buckland)]

indicated dissent.

[Joanna Cherry]

The Solicitor General is raising his eyebrows at me, but if he looks carefully at schedule 5, as I am sure he has, he will see that it talks about the procedure for interpreting retained EU law. That is why I am revisiting these issues. I am also revisiting them because former Supreme Court judges Lord Neuberger and Lord Hope gave this evidence to the House of Lords after our discussions on clause 6(2) in this House. It is new evidence that the Government really should take away and look at before Report.

--- Later in debate ---

[Joanna Cherry]

I am very grateful to the right hon. and learned Member for Beaconsfield for agreeing with me on this point. I would expect him to do so, because he, like me, will be paying very careful regard to what current senior judges and retired judges are saying.

I would like to conclude by quoting what Lord Thomas said to the House of Lords Committee after Lord Neuberger and Lord Hope had given their evidence. He said that he entirely agreed:

“It will be a very real problem for future judicial independence and the rule of law if this”—

the guidance—

“is not clarified.”

Put briefly, the problem is that leaving domestic courts free to make independent judgments on such crucial constitutional issues raises the prospect of politicising the judiciary’s institutional role in the Brexit process, resulting, potentially, in further regrettable attacks on the integrity of UK judges like those we saw earlier this year and last week. I therefore ask the Minister to address this problem before Report. I have no doubt that it will be addressed in the House of Lords, but I think it should be addressed in the elected House. The elected House should sort this out and not leave it to their lordships.

[The Solicitor General]

Given the spirit in which the hon. Member for Nottingham East (Mr Leslie) moved new clause 21, I was anticipating some form of Christmas truce, and that we would perhaps emerge from our trench lines and play football. As the debate went on, however—this is inevitable on such issues—divisions soon emerged. We have had quite a fierce debate on aspects of the policy surrounding our exit from the EU. First, there was the question of when an impact assessment is not an impact assessment. We then—I am not criticising the hon. and learned Member for Edinburgh South West (Joanna Cherry)—started down the road of, in effect, reopening the debate on clause 6(2). I did raise my eyebrows at her. I take the point that there is a link with schedule 5, but she will immediately recognise that the schedule tries to answer the old question of whether the recognition or understanding of EU law for the purposes of judicial interpretation is a question of fact or a question of law. It is a mechanism to an end, rather than the means of interpretation itself, which is of course within clause 6.

[Joanna Cherry]

My point is that, having rightly conceded that it is a question of law, the Government need to address how that law is interpreted by the judiciary.

--- Later in debate ---

[The Solicitor General]

My right hon. and learned Friend is not just a lawyer but an historian. He will know that a previous Solicitor General, the late Lord Howe, steered the Bill that became the 1972 Act through the House of Commons. I nod to his memory. He knew what he was about, and he helped to produce an extremely important and effective piece of legislation. I make no apology for replicating aspects of it in this Bill.

Let me reassure the hon. and learned Member for Edinburgh South West that the fact that the provision is in a schedule is not significant. It is on the face of the Bill—in primary legislation—and it receives the same high level of scrutiny that it would if it were one of the clauses. I think it only right that clause 13 is drafted in a general way and there is particularity in the schedule. That is good, modern drafting practice, as I am sure the hon. and learned Lady will acknowledge, given her extensive study of other Bills on which we have worked together.

[Joanna Cherry]

That was not just my concern. It was a concern expressed by the Law Society of Scotland which, as I have said, informed the SNP amendments. May I take up a point made by the right hon. and learned Member for Beaconsfield (Mr Grieve)? These are extremely sweeping powers, but they are tucked away in a schedule.

[The Solicitor General]

I take the hon. and learned Lady’s point with the utmost seriousness, as I hope I always do, but, with respect to her, I think there is no real significance to be attached to the fact that the provision is in a schedule. This is hardly the longest piece of legislation that the House will have seen, but it will certainly be one of the most pored over—and rightly so. The hon. and learned Lady is doing justice to that through her interventions.

Let me now deal directly with new clause 21. Of course I recognise the concerns raised by the hon. Member for Nottingham East, but I do not consider it feasible to impose a statutory duty requiring summaries of all retained direct EU legislation. The scale of that task would be hard to overstate. I have used the word Sisyphean before, and I think that it applies in this case.

According to EUR-Lex, the EU’s legal database, there are currently more than 12,000 EU regulations in force. To impose a statutory duty of requiring plain English summaries of them would, I think, be disproportionate, given that many explanatory materials have already been issued by the EU about EU law—and, indeed, by UK bodies, including the Health and Safety Executive. One example is documentation on the registration, evaluation, authorisation and restriction of chemicals regulations published by the European Chemicals Agency. That measure has been mentioned many times in the Committee. I believe that, at present, the law is accessible.

European Union (Withdrawal) Bill

Debate between Robert Buckland and Joanna Cherry

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

[Joanna Cherry]

Indeed I will. The hon. Lady has, in her usual clear and incisive way, anticipated something that I was going to come to in a minute. Perhaps I will deal with it now, before I come to my list. As she says, the protection of fundamental rights is absolutely central to the Good Friday agreement, and has its own section in that agreement. The fact that the Bill will take the charter out of retained law raises concerns in this respect. The Good Friday agreement requires at least an equivalent level of protection of human rights in Ireland and Northern Ireland. If the charter is taken out of domestic law, there will be no such equivalent protection of human rights in Ireland and Northern Ireland, because once the UK withdraws from the EU, Northern Ireland will no longer benefit from the charter’s protections. This could pose significant problems for the Good Friday agreement—[Interruption.] The Solicitor General is shaking his head—

[The Solicitor General (Robert Buckland)]

I am listening with great care to the hon. and learned Lady’s remarks and to the interventions that she has taken. Let us not forget that the Good Friday agreement was written in 1998, and that the charter of fundamental rights appeared in 2007. It is the European convention on human rights that is the key governing principle here, not the charter.

--- Later in debate ---

[The Solicitor General]

I know that the hon. Lady has a deep, long-term commitment to ensuring that the Good Friday agreement and the subsequent progress are maintained, and I share that commitment 100%. While I may not have the same knowledge that she has of Northern Ireland, I am sensitive to and understand the fact that there is still no essential consensus about what human rights should mean for every corner of Northern Ireland. It is in that spirit that I will be happy to ensure that the impacts on Northern Ireland are fully considered at all stages of any review, re-examination or clarification of the Bill. I am grateful to her for making that observation.

[Joanna Cherry]

Will the Solicitor General give way?

[The Solicitor General]

I had better make some progress, but I certainly will give way to the hon. and learned Lady in a moment.

--- Later in debate ---

[The Solicitor General]

I can assure my hon. Friend that that will be the case. We had a debate about this in a slightly different context earlier in Committee, but I can assure her that all that material is relevant for any court that might have to interpret it.

[Joanna Cherry]

I am just reminding the Solicitor General that I asked him to answer a crucial point earlier relating to the statement made by the Prime Minister’s spokesperson that the Government expect the ECJ’s role to be unchanged during an implementation period of two years following the official Brexit date in March 2019. If that is so, it completely undermines the premise of clause 5 and schedule 1, which revolve around exit day. Is he seriously still considering allowing these clauses to stand part of the Bill, in the light of what was said this morning?

[The Solicitor General]

The hon. and learned Lady has a keen memory and she will not have forgotten the Government’s commitment to a separate withdrawal agreement Bill, within which will be provisions relating to the implementation, the interim, the transition period— call it what you will. It is to that period that the Prime Minister was addressing her remarks. The fact that this Bill is taking a particular course on legal exit is nothing to do with the transition period, which has to be a separate matter, and the Government have rightly made it clear that they will bring legislation to this House in order for it to determine the law when it comes to the transitional period.

I really must press on now. The right hon. Member for East Ham (Stephen Timms) made the most important reference to the data protection amendment that stands in his name, but the hon. Member for Argyll and Bute (Brendan O'Hara) also spoke well about this. Let me just make these observations: the UK does not have to be subject to the charter in order to benefit from adequacy decisions on data protection once we leave the EU, because the charter applies to EU institutions and EU member states when acting within the scope of EU law. Countries that benefit from adequacy are third countries and are not required to be subject to the charter. There are many examples of countries that have adequacy by virtue of the data protection directive of 1995, including Canada, New Zealand, Switzerland, Uruguay, Argentina and the Faroe Islands.

I must also deal briefly with the further effects of amendments 101 and 336, which specifically seek to set out an ostensibly broader definition of which general principles are to be retained under the Bill to include principles as they are recognised in any EU legislation as well as case law.

Investigatory Powers Bill

Debate between Robert Buckland and Joanna Cherry

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

[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.

Investigatory Powers Bill

Debate between Robert Buckland and Joanna Cherry

Tuesday 1st November 2016 Commons Chamber

[Joanna Cherry]

I agree with the hon. Gentleman that at some point the House needs to look at the mass harvesting of data by private companies, but there is a big difference between a private company harvesting personal data and the state doing so. A private company does not have the coercive power of the state, and that is the crucial reason why the Bill must be scrutinised so carefully.

It is a matter of the deepest regret that the review on bulk powers did not report to this House and has not been scrutinised in this House. I would not wish the SNP’s position on the Bill to be portrayed as irresponsible, because it is not. It is an attempt to make sure that the Bill fulfils its purpose while remaining lawful and proportionate. As has been alluded to during this debate, the Scottish Parliament has given legislative consent to the consolidating and enhanced safeguard provisions in the Bill, so far as those matters fall within its legislative competence. If Members care to read the terms of the legislative consent motion, which I do not believe was opposed by anyone in the Scottish Parliament, they will see that concern was reiterated about the potential impingement on civil liberties by internet connection record collection and bulk data collection.

I want to correct something that the Minister said about Liberty. Liberty has scrutinised the Bill in detail and provided detailed briefings—one might not agree with them all—on every aspect of the Bill. It is unfair to say that Liberty is mistaken about anything. Liberty is quite correct to say that, in reality, all that the double-lock system means is that a judge will check that the correct procedures have been followed; the Minister will still make the initial decision.

In previous debates, I have said that I would not use the phrase “mass surveillance”, because it is a bit too broad, and I have instead talked about suspicionless surveillance. That is the problem with the Bill: SNP Members and many others with concerns about the Bill believe that surveillance should be targeted and based on suspicion. There is a deal too much suspicionless surveillance in the Bill, even as amended.

[The Solicitor General (Robert Buckland)]

I listened very carefully to what the hon. and learned Lady said about the double lock. Surely the point is that where the judge has the final say, authorisation will not be granted. Will not that fundamental change create the balance that both she and I want?

[Joanna Cherry]

I do not accept that the Government have gone as far as some of us would have liked them to go on the double lock, which is by having full-blown judicial warrantry with the power to look at the merits as well as at the process. However, I accept that this is an improvement on what was originally in the Bill, and its inclusion is a great tribute to the hard work that was done by me and my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands), as well as by Labour members of the Committee. If there had not been such root-and-branch opposition, many of the Government amendments that have finally been passed in the Lords would not be with us today.

[The Solicitor General]

We are all keen to claim the credit, but let us not forget that the Government’s position from the outset was to have a double lock. This important change is very much the result of Government initiative, as well as of the good intentions of Opposition Members.

[Joanna Cherry]

Indeed, but the fine detail on the double lock—that is what enables the Solicitor General to get up and say that it goes as far as it does—was inserted by way of amendment during the Bill’s passage.

[Joanna Cherry]

I will make a little progress, and then give way again, because I do not want to take up too much time.

During the Bill’s passage, SNP Members were pleased to offer our support to the Labour party on its amendment to protect trade unionists going about their lawful activities, but what about protections for other activists and campaigners going about their lawful activities and what about non-governmental organisations and whistleblowers? We should not have unjustified spying on trade unionists, and we should not have unjustified spying on other activists either. Whistleblowers can sometimes be very inconvenient to the Government and to the private sector, but they fulfil an important function and the Bill contains insufficient protection for them.

On the protection of journalists, it is true that significant amendments have been made in the Lords, but it is important to put on the record today that journalists have continued concerns about the provisions in the Bill. They feel that safeguards for journalistic sources should apply across the various powers in the Bill, rather than in their current limited form.

In parallel, although great progress has been made in the Lords on the question of legal professional privilege, some in the legal profession still have concerns about the way in which the Bill approaches it. The way the Bill is drafted may have undermined the central premise on which legal professional privilege is based. However, credit where credit is due: significant progress has been made. I spoke this morning to the Law Society of Scotland, which recognises that the Government have come a long way but is still concerned about these somewhat controversial measures and is very anxious to have post-legislative scrutiny of how legal professional privilege will work in practice.

[The Solicitor General]

The hon. and learned Lady will agree, first, that legal professional privilege has for the first time been averred in legislation, which is very important, and secondly, that further amendments made in the Lords—they were approved by Members such as Lord Pannick—now deal with situations in which legal professional privilege material has been obtained inadvertently. We are now covering even more areas in a circumscribed way, and creating the sort of safeguards that I know she wants.

[Joanna Cherry]

I read with interest the debates in the Lords about legal professional privilege. I noted carefully the approval granted to the measures by Lord Pannick, but I also noted that Lord Paddick made the point that the Bar Council of England and Wales is still not entirely happy about the provisions. That is a matter for the Bar Council, but we should adhere to the Law Society of Scotland’s suggestion of careful post-legislative scrutiny of how legal professional privilege will work in practice.

The two huge concerns I still have about the Bill relate to internet connection records and bulk powers. I have already spoken about the limitations in how we have dealt with the bulk powers review and the fact that, in my opinion and that of many others, it does not deal with the issues of necessity and proportionality.

On internet connection records, I welcome the limited safeguards introduced by the Lords, in particular, the threshold increase on serious crime, judicial approval for data retention notices and prohibition of the retention of third-party data, which we were quite agitated about in Committee. But it is a matter of regret that the Bill still includes provisions dealing with the collection of internet connection records that go beyond anything that any other western democracy has on its statute book and that, as the shadow Home Secretary said, may be of dubious legality.

The fight for our civil liberties concerns about the Bill has been lost in this House, but, as the shadow Home Secretary suggested, it is likely to continue in the courts. Liberty is representing the hon. Member for West Bromwich East (Mr Watson) in a legal challenge to existing surveillance laws. As the shadow Home Secretary said, the Government have ignored the opinion of the advocate-general in the Court of Justice of the European Union on these issues, which was that current provisions lacked vital safeguards. To my mind, that means that when this Bill becomes law it will be open to immediate challenge.

The Bill is certainly the better for its passage through the Lords, although it pains me slightly to say that, as someone who does not approve of the House of Lords—not because I do not approve of a second Chamber but because I think that it should be democratically accountable in some way. However, I do not believe that what was promised of the Lords, and expected by some on the Opposition Benches, on the protection of civil liberties has come to fruition.

It is a matter of the greatest regret that peers supported the internet connection record powers just hours after the Investigatory Powers Tribunal had ruled that the security agencies had been unlawfully scooping up personal confidential information on a massive scale for more than a decade. I was repeatedly told regarding my objections to the Bill that our security agencies are the best in the world and never break the law. I suspect that it is close to the truth that the British security agencies are, if not the best, among the best in the world; but they do sometimes break the law. No one is infallible. We must have safeguards that are real. It is noteworthy, and an indication of the inadequacy of the scrutiny of the Bill that, only hours after the Investigatory Powers Tribunal ruled that unlawful action had taken place, the Lords supported the provisions on internet connection records in their totality.

It seems that the battle has been lost in this House. But given the very real concerns I and others have about the lawfulness of aspects of the Bill, I suspect the battle may be won elsewhere.

Investigatory Powers Bill

Debate between Robert Buckland and Joanna Cherry

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

[The Solicitor General]

It is a pleasure to speak at the end of a wide-ranging but important debate about the new power on internet connection records. It is right to remind ourselves of the context of the debate. Only last week, two individuals received significant prison sentences in Britain’s biggest known gun smuggling operation. It was analysis of communications data that provided vital evidence in that case. It allowed the investigative team to attribute telephone numbers and SIM cards to the defendants and to identify key locations.

However, communications data are changing. The world in which the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and I started out practising is no longer the world as it is today. Telephone calls are very often not the means by which criminals and terrorists conduct their activity. Much of that has moved on to the internet via WhatsApp, via internet chatrooms and via the electronic internet communications that have become the mainstay of many criminal enterprises. It is vital that the legislation that we pass in this House not only attempts to keep pace with this breathtaking change, but tries to get ahead of it as far as possible.

[Joanna Cherry]

The Solicitor General will be aware of an exchange that I had earlier with the right hon. and learned Member for Beaconsfield (Mr Grieve) about the fact that there are other ways in which law enforcement agencies can obtain internet connection records. Does the Solicitor General agree that that includes getting the data retrospectively for specific targets from operators who already temporarily store such data for their own business purposes? It would therefore be misleading to imply that the provisions in the Bill are the only way of getting at internet connection records for the purpose of solving specific crimes.

[The Solicitor General]

I take what the hon. and learned Lady says advisedly. It is not good enough to rely purely on third parties to provide the sources of evidential leads. Government must take a lead in this. We are not in the scenario of building our own database, which has rightly been rejected as unfeasible and an unacceptable increase in state power. This is about requiring third parties to retain for up to 12 months information that could provide the sort of evidential leads that up till now have conventionally been provided by observation evidence and via telephone and SMS evidence that is increasingly becoming obsolete. This is about the Government doing their duty to the people whom we serve and to the country that we are supposed to defend, and doing our duty to protect our citizens.

I shall deal as best I can with the amendments in turn. I am grateful to my hon. Friend the Member for Stevenage (Stephen McPartland), who spoke to the issue of the request filter. That is a filter that will be maintained by the Secretary of State. It does not hold data of itself; it is a safeguard. It is there to prevent collateral information being provided to the public authority. It is an innovation and it specifically limits the communications data retained to only that which is relevant.

I would argue that the measure is essential because it serves the interests of privacy that have formed such a part of the debates in this House, and it will help to reduce error. The filter will accept only communications data disclosed by communications service providers in response to specific requests from public authorities, each of which must be necessary and proportionate. Any irrelevant data that do not meet those criteria will be deleted and not made available to the public authority. My hon. Friend has tabled probing amendments, and I know that that is the spirit in which he has initiated debate.

On the question of review, I am entirely sympathetic with the desire for ongoing review of the Bill’s provisions, but that is already provided for. The operation of the Act is to be reviewed by the Secretary of State after five years, which is entirely appropriate. This Bill will need some time to bed in, and time will be needed to see what effect it has had. My concern is that a two-year review runs the risk that we will not be in a position to properly assess its impact. For those reasons, I urge hon. Members who have tabled amendments relating to the review to accept the argument that I submit and to withdraw the amendments.

We have had much debate about journalists. Quite rightly, we have sought to focus on journalistic material because there is a danger in this debate, as with MPs and as with lawyers, that we focus upon the individual and the role, as opposed to the interest to be served. Journalists serve a public interest—the vital importance of freedom of expression in our society, freedom of speech, freedom of thought, and that vital aspect of journalism, the non-disclosure of the source of journalists’ material.

The Government are very cautious and careful about the way in which we seek to deal with these matters, which is why we have tabled the amendments that have already been spoken to by other Members. The placing of the stringent test in amendment 51—the public interest in protecting a source of journalistic information—is further evidence of our continued commitment to protecting the freedom of the press and freedom of expression in our country. As my right hon. Friend the Minister for Security and I have already said, we have listened to the strength of feeling on the matter and will consider whether further protections, over and above the significant protections that already exist under PACE in relation to journalists themselves, are appropriate where the collateral effect of warranted intrusion discloses their sources.

Let me therefore deal with the question of ICRs and their definitions. My right hon. Friend the Minister for Security, in an intervention on the shadow Home Secretary, has set out clearly the Government’s position on how we would view the threshold. The right hon. Gentleman quite rightly accepts that this is not an easy task and that we must get it right. We do not want to exclude offences such as stalking and harassment, for example. We want to ensure that the threshold is robust but actually makes sense in the context of the new powers of ICRs. I look forward to that work being ongoing.

Let me deal with the question of definition. I can be clear today once again that the Bill does not require companies to retain content, but I am willing to consider any amendments that further improve definitions in the Bill, as another opportunity for meaningful dialogue to take place so that we get the definition absolutely right. I know that that is a concern not only of the shadow Home Secretary, but of other right hon. and hon. Members.

Let me move on to the SNP amendments. I am grateful to the hon. Member for Paisley and Renfrewshire North (Gavin Newlands), who has been consistent in his argument today, as he was in Committee. With respect, however, I have to say that that consistency is misplaced. There is an important issue here about access to communications data that I think would be jeopardised in a way that would be prejudicial to the public if judicial commissioners became involved. I do not think that there is any utility or public interest to be served by the introduction of judicial commissioner approval for communications data acquisitions, because we are talking about a great volume of material. Also, the highly regarded single point of contact regime has already provided expert advice and guidance to authorising officers, and that is placed as a mandatory requirement in the Bill.

There are many other amendments that I could address, but time does not permit me, save to say that our commitment to protecting the public and ensuring that our legislation is up to pace with modern developments is clear, so I urge right hon. and hon. Members to support our amendments.

Investigatory Powers Bill

Debate between Robert Buckland and Joanna Cherry

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

[Joanna Cherry]

I do, but let us suppose the judicial commissioners have been selected by an independent board. The Judicial Appointments Board of Scotland, the Judicial Appointments Commission—in England and Wales—and the Northern Ireland Judicial Appointments Commission are not made up just of lawyers; there are lay people and people from other walks of life on these bodies. That is to give the public confidence in the independent appointment process of the judiciary, and it is very important that the public—our constituents, who have concerns about how far the powers in this Bill are going—have confidence that the judicial commissioners who will be performing the oversight functions and enforcing the safeguards on this Bill are appointed independently, rather than being the right chap for the job being chosen. I choose my words advisedly there.

I am very conscious of not eating up too much time, Mr Deputy Speaker. I have discussed two crucial amendments that I would like to put to a vote on part 8. I have tabled other amendments that others will perhaps be able to speak about, such as the measures on post-notification following surveillance and the notification of errors. I briefly wish to turn to amendment 482, which is designed to put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution. The amendment reflects our concern that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly. Throughout the Committee process, we attempted to amend the Bill by inserting a public interest defence for whistleblowers. Regrettably, the Government were not prepared to accept it, but I was happy that when I proposed an amendment similar to this one to part 8, the Solicitor General said in Committee that he recognised the sentiment behind the amendment and was of a mind to give it further consideration. I urge the Government now to make a gesture by supporting this amendment, which I may push to a vote if I get the chance to do so.

[The Solicitor General]

The hon. and learned Lady is absolutely right in her recollection, and I am giving this matter anxious consideration. I would, however, point out that clause 203, dealing with the information gateway, underpins the important principles that she outlines about the rights of whistleblowers. I hope that is of some assistance.

[Joanna Cherry]

I hear what the Solicitor General says, but we took clause 203 into account when framing this amendment, and we remain of the view that it needs to be put beyond doubt in the Bill that whistleblowers will be protected from criminal prosecution and that there will be a public interest defence. I will mention that again when discussing other parts of the Bill.

Time prevents me from talking about the fact that the right of appeal in respect of the Investigatory Powers Tribunal is, regrettably, curtailed, but I do not think we are going to get to deal with that today. What I really want to say in conclusion is that this Bill seeks to put on a statutory footing very extensive powers, and it is vital that there is proper oversight of the way in which they are exercised. Part 8, as it stands, is pretty mealy-mouthed. It does not even implement the central recommendation of RUSI, the Joint Committee and David Anderson that there should be a separate investigatory powers commission. Without these amendments proposed by the SNP on key recommendations about oversight, we cannot support the Bill in its current form.

Investigatory Powers Bill (Sixteenth sitting)

Debate between Robert Buckland and Joanna Cherry

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

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

I beg to move amendment 869, in clause 223, page 172, line 41, leave out sub-paragraph (i) and insert—

‘(i) is about an entity to which a telecommunications service is provided by that telecommunications operator and relates to the provision of that service,”

This amendment clarifies the definition of communications data, limiting requirements on organisations to be providing data about the services that they supply.

It is a pleasure to welcome you back to the Chair, Mr Owen. This is an amendment to the interpretation clause dealing with telecommunications definitions, in particular subsection (5), which deals with the definition of communications data. The amendment would replace subsection (5)(a)(i) with the purpose of clarifying that the definition of communications data applies to the providers of the relevant telecommunications services, rather than allowing an organisation to be required to provide data about services it does not provide. Without the amendment, the definition of communications data is flawed because it does not tie the data to the provider of the telecommunications service and therefore seems set to encompass third-party data, which I know the Home Office denies is the intent.

The amendment would make two small changes. First, it specifies that the telecommunications service has to be provided by that telecommunications operator—in other words, it avoids pulling in third-party data. Secondly, it specifies that the data relate to the particular service provided and not to a different one. I will be interested to hear what the Solicitor General has to say about this amendment, which seeks to clarify and tighten up the clause.

[The Solicitor General (Robert Buckland)]

It is good to see you back in your place, Mr Owen. I look forward to a fruitful session.

I welcome the hon. and learned Lady’s remarks. We considered these issues in the context of part 4, in particular third-party data. I do not want to rehearse the arguments about why we consider the code of practice to be the appropriate place to enforce the commitment made by my right hon. Friend the Home Secretary on the Floor of the House on Second Reading. However, the Government note the strength of feeling on this issue, as evidenced by the outcome of the vote on an earlier amendment. We have heard that message loud and clear, so we are considering whether we could do more to make the commitment clear. I hope that that gives the hon. and learned Lady some reassurance that we are taking these matters seriously, and I am grateful to her for raising them.

The aim of the amendment appears to be to prevent a public authority from obtaining third-party data and to prevent a communications service provider from being required to retain those data. I am not sure that the amendment achieves that desired outcome. It would remove third-party data from one element but not from all elements of the definition of communications data. I do not think there is any debate about the need to get the definition of communications data right, but it must correctly and logically classify the data held by CSPs or what can be reasonably obtained by them. The principle of communications data is clear; changing the definition so that the classification of data changes depending on which provider holds it would cause a degree of confusion that I am sure the hon. and learned Lady does not intend.

My first argument is that the clause is not the right place to prevent public authorities from obtaining third-party data or to prevent a CSP from being required to retain them. Clause 53(5)(c) makes it clear that a communications data authorisation can provide for the obtaining of third-party data where that is reasonably practicable for the communications service provider. That maintains the existing provision under the Regulation of Investigatory Powers Act 2000. Where a CSP holds communications data, whether in relation to its services or those provided by a third party for its business purposes, or where it is able to obtain them, they should be available to the public authorities for the statutory purposes in the Bill. We should not put them out of the reach of law enforcement agencies, based solely upon which company holds the information.

I suspect that the hon. and learned Lady’s intent may be to stop a service provider being forced to comply with an unreasonable requirement relating to third-party data—[Interruption.] I am grateful to her for indicating her assent. I assure her and the Committee that, in my view, the Bill already does that. A provider is required to comply with a request for comms data, including third-party data, only where reasonably practicable for them to do so. There is no need to impose a further restriction on that basis.

I recognise the sensitivities of third-party data, but I am afraid that a blanket restriction on its acquisition is not the way forward. We consider that the Bill and the code of practice strike the right balance. On the basis of my earlier assurances to the hon. and learned Lady about getting the language clear, I invite her to withdraw the amendment.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 223 ordered to stand part of the Bill.

Clause 224 ordered to stand part of the Bill.

Clause 225

General definitions

[Joanna Cherry]

I beg to move amendment 870, in clause 225, page 177, line 11, at end insert—

‘(a) an advocate,

(b) a barrister,

(c) a solicitor.’

This amendment provides a definition of a “professional legal adviser” relating to use of the term in clauses 25, 100, 135 and 171.

I am grateful to the Law Society of Scotland for drawing my attention to the necessity of this amendment. When we debated the clauses on legal professional privilege—we have done so on a number of occasions during this Committee’s proceedings—I drew attention at an early stage to the Law Society of Scotland’s evidence to the Joint Committee. It gave evidence alongside the Law Society of England and Wales and expressed its shared and serious concerns about the requirement to provide for the protection of legal professional privilege on the face of the Bill. It is pleased that the Government have taken steps to do that, although it is not happy with the extent of the protection provided. That is perhaps a debate for another day.

The purpose of the amendment is to deal with the definition of items subject to legal privilege at line 29, on page 175. The amendment deals with the definition in relation to Scotland and would define a “professional legal adviser” as a person who is an advocate—that is, of course, the correct professional designation for counsel in Scotland or a Scottish barrister—a barrister or a solicitor. The aim is to avoid leaving the definition of a “professional legal adviser” open to too wide or ambiguous an interpretation. It will limit the definition of those who are qualified to provide professional legal services to advocates, solicitors and, in certain circumstances, barristers. I will be interested to hear what the Solicitor General has to say about the proposed definition of a “professional legal adviser”.

[The Solicitor General]

When I saw the amendment, I was reminded of points I made earlier regarding the dangers of over-defining either legal professional privilege itself or those who are subject to it. Let us remind ourselves that legal professional privilege exists not to create a special category of person—in this case, a lawyer—who is exempt from requirements by which the rest of us have to abide, but to protect the client and the integrity of the advice that a lawyer may give to their client. My concern about the proposed definition is that it limits the definition of what items would be subject to legal privilege. For example, legal executives might well be in the position where they are giving advice and are covered by legal professional privilege. Even paralegals could be, should be and would be covered by legal professional privilege.

I absolutely accept the intention behind the amendment, but however well intentioned it might be, trying to define “professional legal adviser” in the Bill would actually damage and undermine the importance of legal professional privilege. We have had many debates about it, but I think the Bill serves to protect that privilege. We are continuing to discuss the precise extent to which that is reflected in all parts of the Bill, but there is no doubt about the Government’s clear intention. I am proud to be a Minister supporting this approach because I always felt that RIPA was deficient in that respect—I held those views long before I became a member of the Government. I am pleased that we are making such progress.

--- Later in debate ---

[Joanna Cherry]

I am interested in the Solicitor General’s point about legal executives or paralegals. Does he agree that, in so far as communications with such individuals would require protection, they would be protected by subsection (1)(b)(ii), which specifies

“communications made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings”?

[The Solicitor General]

That is a good point, but there is a danger that we overcomplicate the situation and end up restricting what is commonly understood as the important legal professional privilege that exists between lawyer and client. Instead of overcomplicating it, it would be far better to keep maters straight and reflect the position provided for in the Police and Criminal Evidence Act 1984, which applies here in England and Wales, the Police and Criminal Evidence (Northern Ireland) Order 1989 and the definitions relating to Scotland. The other statutes for England, Wales and Northern Ireland do not define “professional legal adviser” and I do not see a compelling need to do so here. As I have explained, the Bill goes a long way towards protecting that important legal privilege and serving the interests that that privilege is all about. It is not about the lawyers but the client. Fundamentally, it is that communication that merits special protection.

[Joanna Cherry]

I wholly accept that it is not about lawyers but about the client, but is there not a need to define what is meant by “professional legal adviser”? That is all this is about really.

[The Solicitor General]

The hon. and learned Lady puts her case with her customary spirit and brio, if I may say so, but despite her attempts to persuade me, I am concerned that if we seek to narrow the definition in the way the amendment would, the sort of unintended consequences that I know the hon. and learned Lady would be very reluctant to see happen might flow. We should not, in the context of primary legislation, start to define what is better explained in other ways. For that reason, I urge her to withdraw the amendment.

[Joanna Cherry]

I hear what the Solicitor General has to say, and in the circumstances I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 225 ordered to stand part of the Bill.

Clauses 226 to 231 ordered to stand part of the Bill.

Schedule 9 agreed to.

Clause 232 ordered to stand part of the Bill.

Schedule 10

Minor and consequential provision

--- Later in debate ---

[The Solicitor General]

I have listened with great care to the arguments of the hon. and learned Lady. I absolutely agree that, where a serious error has occurred in the use of investigatory powers, the commissioner should be able to inform those affected. We have clause 198(1) to deal with that. However, I do not agree with the principle that as a matter of course, everyone or anyone subject to the use of a lawful investigatory power should be notified of the use of those powers, even with the caveat “unless it would damage an ongoing serious crime or national security investigation”. Such a principle would mean that we could not exclude the possibility of having to notify suspected criminals and terrorists that powers had been used against them, just because a specific ongoing investigation had stalled or indeed ended with evidence of wrongdoing, but without sufficient evidence to meet the prosecution test.

As hon. Members will know, suspected criminals and terrorists will often appear on the radar of the police and security services at different times and in different contexts. Clearly, it would not be at all appropriate to inform them that investigatory powers had been used in one case, as that could prompt them to change how they behave or communicate and hamper subsequent investigation.

National security is particularly important in relation to this matter, because the amendment would require the commissioner to make the subject of interest aware of the conduct that had taken place. That would not only run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies; it would essentially require the techniques that they use in specific cases to be made public. That cannot be in the public interest. It would assist terrorists and criminals in their operations, which I am sure cannot be the intention behind the amendment.

Furthermore, the commissioner can delay notification only on the basis of serious crime rather than of crime generally, meaning that the amendment would require the commissioner to inform suspects in active criminal investigations that their communications data had been acquired. One example is an investigation into stalking. It may well not meet the serious crime threshold, but as we have discussed in another context, communications data could be essential, because they could show contact between two parties. My worry about the amendment is that it would require the stalker to be informed that his communications data had been requested, which surely cannot be the intent.

[Joanna Cherry]

Does the Solicitor General agree that new clause 12(3) deals with the very problem that he has just identified? It says:

“A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the affected party.”

[The Solicitor General]

I am afraid that it does not, because it uses the words “serious crime”. I have given an example that might not be seen as a serious crime, although as we all know, stalking is absolutely no joke to the victims and can lead to extremely serious consequences for them. I know that the hon. and learned Lady agrees with me about all that.

Beyond the principled objections to the amendment, there are numerous practical problems. It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact. The commissioner would have to require the relevant telecommunications operator to provide them with a list of all relevant customers, and that operator would have to inform the commissioner every time a new customer joined the service. I worry that it would be pretty easy for criminals to use that process to identify services that they could use to avoid detection, and that unreasonable burdens would be put on all the public authorities covered by the Bill.

[Joanna Cherry]

By way of probing, if we were to delete the word “serious”, so that the subsection read, “notification may defeat the purposes of an ongoing criminal investigation or a national security investigation,” would that deal with the Solicitor General’s concerns?

[The Solicitor General]

I am grateful to the hon. and learned Lady for the way in which she is seeking a reasonable compromise, but I worry that her proposed approach is, on that basis, unnecessary. We already have checks and balances in the framework of the Bill that allow for serious error to be properly identified and dealt with, and for those affected to be notified. As I was saying, I worry that we would end up placing unreasonable burdens on public authorities by requiring them constantly to make a case to the commissioner about whether what they were doing would hamper national security or crime investigations if suspects were told that investigatory powers were being used against them. It would be far better for the police to spend their time and money on getting on with the work of investigating criminals than on determining whether individuals should be informed about what we should not forget is perfectly lawful investigative activity, with the caveat I mentioned about serious error.

Furthermore, in the context of bulk warrants under parts 6 and 7 of the Bill, the public authority or commissioner would need to examine all the data collected under the warrant to identify those individuals whose data had been collected. That would be impracticable and would actually lead to greater intrusions into privacy, because, as we know, bulk data are not examined to that degree unless there is a specific purpose and a properly framed approach. I am sure that cannot be the intention of the amendment. These proposed new clauses are at best unnecessary and at worst frankly unhelpful, and risk undermining the work of our law enforcement and security and intelligence agencies.

On new clause 13 and the audit trail point, the draft code of practice, at paragraph 8.5, requires that

“When information obtained from equipment interference is used evidentially, the equipment interference agency should be able to demonstrate how the evidence has been recovered, showing each process through which the evidence was obtained.”

There will, however, be circumstances when equipment interference is used on an intelligence-only basis—that is, a non-evidential basis. Given those points, and given that it is in the interests of law enforcement and the intelligence agencies to ensure that where equipment interference is used to support a criminal investigation, that is done accordance with evidential standards, new clause 13 is, with respect, not necessary.

If that new clause is in fact about the enhancement of oversight, we have made it clear that while the powers of the new commissioner are being significantly increased, their resources will be greatly increased, which means that they will be able to audit, inspect and review equipment interference agencies as they see fit. In addition, the draft code of practice for equipment interference will require the relevant agencies to keep extensive records to support and enable oversight. There has been no suggestion from the current oversight commissioners in respect of property interference warrantry that a statutory requirement for an audit trail is necessary.

The hon. and learned Lady properly made reference to recent ECHR authorities, most notably Zakharov, a case that I have looked at in the context of these debates. We have to be careful about Zakharov, because it deals with the targeted interception regime—a particular aspect of the debate, as she knows—rather than the bulk regime, in relation to which it is sometimes prayed in aid. I give that caveat in the spirit of fairness, because of course the Zakharov case contained reference to Kennedy v. United Kingdom, a 2010 case in which the UK was found to be in compliance with article 8. In particular, the role of the Investigatory Powers Tribunal was seen as an important part of the checks-and-balances mechanism that allowed the Court to come to the conclusion that the article 8 requirements were satisfied.

Investigatory Powers Bill (Fifteenth sitting)

Debate between Robert Buckland and Joanna Cherry

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

[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.

--- 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.

--- Later in debate ---

[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 ---

[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.

[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.

--- 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.

Investigatory Powers Bill (Fourteenth sitting)

Debate between Robert Buckland and Joanna Cherry

Committee Debate: 14th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 198 ordered to stand part of the Bill.

Clause 199

Additional functions under this Part

[Joanna Cherry]

I beg to move amendment 792, in clause 199, page 154, line 17, at end insert—

“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”.

This amendment would give the Judicial Commissioners power to refer issues of concern to the IPT without having to rely on a complaint being made.

The amendment, which would insert a new subsection in clause 199, was proposed by the Equality and Human Rights Commission and is jointly tabled by the Scottish National party and the Labour party. It would give the judicial commissioners power to refer issues of concern—matters that came to their notice and about which they were concerned—to the Investigatory Powers Tribunal without having to rely on a complaint being made.

Under the Bill as drafted the unlawful use of investigatory powers may not receive sufficient scrutiny, because often the subjects of surveillance will be unaware of it and so not in a position to make a complaint. The amendment would improve the safeguards in the Bill by addressing that problem so that where judicial commissioners are aware of a concern, they can refer it to the Investigatory Powers Tribunal. The judicial commissioners decide whether to approve the issue of warrants and are well placed to identify issues of systemic concern and of law requiring resolution by the tribunal. They are, in fact, much better placed to do so than those subject to surveillance, because they have an overview of the whole picture. It is therefore sensible to permit them to refer matters of concern to the tribunal.

The amendment is in line with a number of recommendations made during prelegislative scrutiny. Recommendation 66 of the Joint Committee on the Draft Investigatory Powers Bill was that

“The Judicial Commissioners should be able to make a direct reference to the Investigatory Powers Tribunal where they have identified unlawful conduct following an inspection, audit, investigation or complaint.”

Recommendation 16 of the Royal United Service Institute’s report, “A Democratic Licence to Operate”, says:

“The judicial commissioners should have a statutory right to refer cases to the IPT where they find a material error or arguable illegality or disproportionate conduct.”

The Interception of Communications Commissioner’s Office, in written evidence to the Draft Bill Committee, made similar recommendations.

In their response to prelegislative scrutiny, the Government did not accept those recommendations, but they appear to have agreed that judicial commissioners should have this power, as it is referred to in the draft codes of practice. For example, the draft code of practice on interception of communications states:

“The Commissioner may, if they believe it to be unlawful, refer any issue relating to the use of investigatory powers to the Investigatory Powers Tribunal”.

However, there is no express power to do this in the Bill. We argue that the referral power needs to be set out clearly in the Bill for two reasons.

First, such an important power should be in primary legislation, rather than in a draft code of practice that may be subject to revision after the passage of the Bill through Parliament. If it is in the Bill, any change to the power in future would be subject to greater parliamentary scrutiny, requiring the amendment of primary legislation rather than the mere revision of codes of practice. Secondly, providing for the power in codes of practice but not in the Bill creates uncertainty, which the amendment would resolve. Without the amendment, there may be a lack of certainty about whether the judicial commissioners have what would be a crucial power, and it could be argued that the codes of practice cannot create such a power without it being in the Bill.

The confusion over those issues could be resolved in a straightforward manner by the Government accepting the amendment. Their general response to prelegislative scrutiny referred to the fact that courts and tribunals do not usually have the power to carry out investigations on their own initiative, but the amendment would not give the tribunal that power; rather, it would give the judicial commissioners the power to refer an issue to the tribunal, which the tribunal would then investigate on the initiative of the judicial commissioners. In support of that approach, I note that the Investigatory Powers Tribunal explains on its website:

“The Tribunal adopts an inquisitorial process to investigate complaints to get to the truth of what has happened in a particular case, unlike the adversarial approach followed in ordinary court proceedings.”

I suggest that that approach is appropriate in situations such as those envisaged in the Bill, where the victims of the measures will not have knowledge of them but the judicial commissioners will. They may therefore refer to the IPT, and because the IPT is an inquisitorial rather than an adversarial body, it is well placed to investigate a referral from the judicial commissioners. I ask the Government to take on board the amendment in the spirit in which it is intended and indicate that they will agree to it.

[The Solicitor General]

I am grateful to the hon. and learned Lady for the way in which she has sought to persuade the Committee of her case. She is quite right that the IPT has an inquisitorial procedure rather than an adversarial one, but it still needs a claimant. It would be wholly inappropriate if the commissioner ended up being the complainant and therefore a party to the proceedings. With respect to her and those who proposed the amendment, although I appreciate their intentions, they mischaracterise the process. There will indeed be a claimant, but that will be the individual or body that is the subject of the error. Where the error is serious, the judicial commissioner will inform that person or body of their right to apply to the IPT for a remedy. As all authorities are already required to provide the IPT with all the information it needs in the course of its investigations, it is difficult to see the benefit of the amendment.

--- Later in debate ---

[Joanna Cherry]

I beg to move amendment 824, in clause 203, page 158, line 33, at end insert—

‘(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.

(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”

We had our old friend economic wellbeing a moment ago, and now we have our old friends whistleblowing and the public interest. Clause 203 is, rather intriguingly, titled “Information gateway” and provides that a disclosure to a commissioner will not violate any duties of confidence or any other restriction on the disclosure of information. This amendment would put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution.

The amendment reflects a concern, which we have already heard in the Committee, that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly.

[The Solicitor General]

I am sure the hon. and learned Lady is going to outline her arguments with brevity, but may I assist her? I recognise the sentiment behind the amendment and am of a mind to give them further consideration. On that basis, I invite her to withdraw the amendment.

[Joanna Cherry]

I am grateful for that. We have had a lot of debate about these issues already, and I am very grateful to the Solicitor General for indicating that he is going to look at them seriously. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 203 ordered to stand part of the Bill.

Clause 204

Funding, staff and facilities

Investigatory Powers Bill (Thirteenth sitting)

Debate between Robert Buckland and Joanna Cherry

Committee Debate: 13th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

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

I support the amendments.

[The Solicitor General (Robert Buckland)]

I thank the hon. and learned Member for Holborn and St Pancras for setting out his case. He will be glad to know that there is more to this than mere cost. I say “mere”, but Ministers and parliamentarians have a duty to ensure we do not burden the Exchequer with unnecessary cost. My primary argument is focused on that. The amendments would only put us in the same position as we will be in under the Bill, but at greater cost.

The Home Office estimates that at least an extra £500,000 would be needed to staff and finance the proposed body. That is not an insignificant sum, which is why the Government are urging restraint when pursuing what might seem an entirely rational, reasonable and logical conclusion. I accept that a number of the bodies and individuals mentioned by the hon. and learned Gentleman would support the thrust of these amendments.

[The Solicitor General]

The impact assessment published alongside the Bill contains the figure. It is supported by that document, so there has been empirical research. I do not have the full figures, but I imagine that the research is based on estimates of staffing levels. The body would also have to deal with new corporate functions, such as human resources, IT, non-executive directors and procurement, as the hon. and learned Gentleman knows well from his experience as Director of Public Prosecutions. This would be a non-departmental public body similar to, say, the Crown Prosecution Service. As an independent body and a key part of our constitutional arrangements for the prosecution of crime, it would obviously need that structure to maintain its independent role.

The amount of money is not insignificant, and the question I must ask is: what would the measure achieve? I remain unconvinced that it would achieve anything more than the current proposal does, because the powers and duties of the proposed body would remain exactly the same as the commissioner’s responsibilities, and the number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same.

[Joanna Cherry]

The Interception of Communications Commissioner’s Office said that a separate body would promote greater public confidence, because it would be independent, with an appropriate legal mandate, and would be public facing. Does the Solicitor General accept that the amendment would promote public confidence if the oversight function were separate from the judicial function?

[The Solicitor General]

I am grateful to the hon. and learned Lady for her intervention. I know the spirit in which she supports this amendment, because she genuinely and sincerely believes that more needs to be done to promote public confidence. My simple response to her is that the current proposals do promote public confidence in not only the organisation’s operational ability, but, importantly, its ability to deal with the role of inspection.

I respect those who believe that there should be an absolute and complete separation. I suppose it flows from the philosophical view that the desideratum of our constitution should be separation of powers in its pure form. I am afraid that I do not subscribe to that view, and never have done. I think that the British system of checks and balances, which this Bill epitomises, is the better way to achieve the balance between the need for Executive involvement and responsibility for important decisions—on warrantry, for example—on the one hand, and judicial involvement and input into the process on the other. We are achieving that balance in this Bill.

While I respect the philosophical intention behind this other approach, my worry is that we are pursuing too much of a rationalist, purist approach to separation of powers, rather than keeping to the spirit of what the Bill is all about. I am supported—perhaps not quite to the fullest philosophical extent, but certainly practically—by the comments we have heard from people with a strong interest in and knowledge of this area.

There is a value in having a relationship, even a distant one, between the two functions that I have talked about. Indeed, Lord Judge made that point in his evidence to this Committee, when he described how the Office of Surveillance Commissioners works. He said that he “strongly recommended” a model in which the inspectors act as a check on how an authorisation was implemented and then feed back, if necessary, that information to the authoriser, so that there is a full awareness of how warrants are to be put into practice.

There is a strong argument that there is stronger oversight from having one indivisible body that can scrutinise the full lifespan of a warrant, from initial request for authorisation through to implementation. David Anderson himself believes that:

“I have considered whether it would be difficult to combine the judicial authorisation function and the inspectorate in a single organisation, and concluded that it would not…Whilst the judicial function is obviously a distinct one, there is considerable benefit in dialogue: the Judicial Commissioners could advise the inspectorate on matters to look out for on their inspections, and the inspectors could in turn suggest that a warrant be referred back to the Judicial Commissioners if they formed the impression that it was not being implemented as it should be, and that the Judicial Commissioners might wish to consider modifying or cancelling it.”

I accept that the Bill does not prescribe the precise approach in practical terms, but the point is that we want the Investigatory Powers Commissioner to decide what the working relationship should be between the two functions of his or her office. The fact that the Bill is silent on that emphasises the point that we want the degree of operational independence and robustness that I believe the current framework provides.

Of course, there is nothing new about this, because the current oversight bodies—the offices of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner—are provided for in statute in exactly the same way that it is proposed that this body be provided for in this Bill. I am sure that if the current commissioners—we heard them give evidence—felt that their independence was in any way being constrained, we would have heard about it by now. What we get is oversight, and the bodies responsible for oversight focusing on the core tasks of carrying out inspections and investigations, and avoiding the sort of administration, human resources and IT functions that I have mentioned.

[Joanna Cherry]

I hear what the Solicitor General says about the essential philosophical difference between those who believe in separating powers properly and those who do not, but does he accept that if the one body has judicial audit and inspection responsibilities, the judicial commissioners will effectively be checking their own homework? Does he really think that that will promote public confidence?

--- Later in debate ---

[Joanna Cherry]

I hear what the hon. Lady is saying. Initially, I thought she was going to suggest that it would be for judges who were at the end of their judicial careers and would be coming up against retirement anyway. Her point gives me a difficulty with the six-year amendment, but not with the non-renewal amendment. If judicial commissioners are appointed only for three years with a renewal at the end, my fear pertains in so far as they would be there for a very short period of time. They would probably be anxious to stay on for longer, and could well tailor their decision making to guarantee a longer stay. That may not be a concern at present, as I have taken trouble to say, but that does not mean that it could not be a concern for the future.

The oversight of some of the most intrusive and far-reaching powers of the state is important work. Therefore, in tailoring the provisions for the appointment of the judges, we should look not so much to what might be convenient for judges, but to what is necessary to secure proper independence in the eyes of the public. That is about as much as I can say about amendments 745 and 746.

I am pleased to say that amendments 860 and 861 were suggested to the Scottish National party by the Law Society of Scotland, and we have decided to table them because we think they would improve the Bill. They deal with the circumstances in which a judicial commissioner may be removed from office. At present, clause 195 allows for the removal of a judicial commissioner who is bankrupt, disqualified as a company director or convicted of an offence. The clause does not permit the removal of the commissioner for being unfit by reason of inability, neglect of duty or misbehaviour. It is important, in the eyes of the Law Society of Scotland—I endorse its views—that the possibilities of unfitness for office by reason of inability, neglect of duty or misbehaviour are provided for in the Bill.

Very regrettably, it sometimes happens in Scotland—this has happened in my lifetime—that a judge, albeit of the lower courts, has to be removed for reasons of inability, neglect of duty or misbehaviour. I realise that we are dealing with judges at the very senior end of the spectrum, and I very much hope that such steps would never be necessary, but there is no harm in providing for such steps to be taken. Would it not be a very serious matter if a judicial commissioner dealing with the oversight of such far-reaching and intrusive laws were unfit for office by reason of his or her inability, neglect of duty or misbehaviour? We would want to be rid of them, in the best interests of everybody. I commend that aspect of the Law Society of Scotland’s amendments.

If amendment 861 were made, before removing a judicial commissioner the Prime Minister would be required to consult the Lord Chief Justice in England and Wales, the Lord President of the Court of Session in Scotland, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. That additional safeguard of consultation with the heads of the UK jurisdictional judiciaries and the devolved Administrations would provide a check on unjustified attempts to remove the judicial commissioner.

The purpose of the amendments is to prevent unjustified attempts to remove the judicial commissioners and to add grounds for their removal if they were unfit for office by reason of inability, neglect of duty or misbehaviour. I am interested to hear what the Solicitor General has to say about the amendments.

[The Solicitor General]

Once again, the hon and learned Lady puts her argument succinctly and clearly. I am sure she will forgive me for characterising her as a guardian of independence of the judiciary. Although that is an admirable position to take, I do not think it is necessary in this instance.

I will deal first with the length of appointment. My hon. Friend the Member for Louth and Horncastle put it very well and I do not need to improve upon the argument. We need a relatively significant term—three years—to attract serving High Court judges, but not a term of such length that it would be difficult for them to return to High Court work in the normal course of events. That is why we think three years is an appropriate period. For retired High Court judges, we have to remember the constraints that we are under. A three-year period, with that renewal term, strikes the correct balance. The renewal term is there because this will be technical role, and knowledge and expertise will be developed by the commissioners. Allowing a reappointment will retain that expertise in a balanced and fair way. A six-year period would just be too long, bearing in mind the quality that we want to attract to fill these important and sensitive posts.

I will deal with the question of unfitness. I am sympathetic to the intention behind the amendments, but it might be argued that the proposed wording gave too much discretion to the Prime Minister to remove a commissioner. The conditions listed in clause 195 for removal from office are precisely the same as those for which a High Court judge can be removed from post. Since having held the position of a High Court judge is the qualification for office as a judicial commissioner, the reasons for removal from the two posts should be precisely the same. If a commissioner is demonstrably unfit to perform the role, he or she can still be removed from post if the Prime Minister and, importantly, both Houses of Parliament agree to the removal. That is an admirable check and balance, which deals with the point of competence and fitness to which the hon. and learned Lady quite properly points us.

On the need to consult the judiciary and others concerned in the appointment of commissioners before removing them, I do not think that is necessary because there are only two ways in which a commissioner could be removed from office: first, because the individual had failed to meet the standards expected of a High Court judge; and secondly, via the mechanism of Prime Minister and Parliament agreeing that that person is no longer fit. Those are adequate safeguards that stop the mischief of a commissioner being removed from post on the whim of the Prime Minister alone. I strongly reassure the hon. and learned Lady that there is absolutely no power for the Government—any Government—to remove a judicial commissioner just because they disagree with that commissioner’s views. I can say a Government would not do that, but I am able to go further and say that, on the basis of this framework, the Government simply cannot do that. That is absolutely right and fulfils the objectives that the hon. and learned Lady wishes to achieve through her amendment. On that basis, I urge her to withdraw it.

[Joanna Cherry]

I have listed carefully to the Solicitor General and the hon. Member for Louth and Horncastle and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 195 ordered to stand part of the Bill.

Clause 196

Main oversight functions

Investigatory Powers Bill (Eleventh sitting)

Debate between Robert Buckland and Joanna Cherry

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

[The Solicitor General]

I take the hon. and learned Gentleman’s point; it is one that we understand. Again, however, I must make the point that at the point at which warrants are served in this context, it is not possible to know what part of the data that is being collected will be examined and for what purpose. Therefore, the question of detail is not a question of reluctance on the part of the authorities—it is just about practicability. It is not possible, of course, to anticipate that.

May I just deal with amendment 683? Under the Bill, a warrant will only include the operational purposes for which it may be necessary to examine the data. The Bill makes it clear that that may include all of the possible operational purposes for which data may be selected for examination. The effect of the amendment would be to require all possible operational purposes to be specified on a warrant, regardless of whether they were necessary. I am sure that that is not the intention of the hon. and learned Gentleman, but that was the point that I was making about the amendment perhaps not quite achieving the purpose for which it was tabled.

Having said that, I would argue that in clause 141, in combination with clause 151, we have an adequate and sufficient safeguard to ensure sufficient granularity when applications are made. It will not be good enough for the authorities simply blithely to quote “national security”; there will have to be greater granularity in applications. I would say that that is clear from the Bill, and combined with the code of practice I think there is enough here for hon. Members to be reassured that this process is not a mere rubber-stamp exercise and is a proper and effective safeguard.

The hon. and learned Member for Edinburgh South West made remarks in her interesting speech about the United States experience. It is important that I briefly put on record the important distinction between the United States regime of collecting domestic telephone records, which was pursuant to the Patriot Act—that has now been repealed by Congress—and the particular powers under section 702 of the Foreign Intelligence Surveillance Act 1978, as amended. Those powers are what the US Privacy and Civil Liberties Oversight Board addressed in its reports in July 2014 and more latterly this year.

Those powers to collect the content of electronic communications from targets outside the US are germane to the questions in this debate. As my right hon. Friend the Minister for Security said, the American board clearly found that there was value in and an important role for that particular programme. It is important that we take care to draw distinctions between different functions.

[Joanna Cherry]

I agree we must take care. The Solicitor General was careful to say that the conclusions he just mentioned were drawn in relation to the gathering of data outwith the United States of America. He would agree that the USA has strict constitutional rules about the gathering of its own citizens’ data, which is what we are concerned with here. It is not just about overseas, but our own citizens’ data.

[The Solicitor General]

I share that anxious concern, which is why I think we not only have avowal here, but an enhancement of safeguards. There is no doubt about it: the Bill represents a dramatic improvement on blithe reliance on the 1984 Act, to which the hon. and learned Lady correctly referred, and then nothing ever being said or debated in this House or the other place about the extent of those powers and the important judicial safeguards we have here.

Underpinning all that—this is within the code of practice—is the oversight of the commissioner, who will be able to inspect and review and ensure that the powers are not being abused in a way that the hon. and learned Lady and I would find abhorrent. It is always a pleasure to hear a Scot quote the great Unionist Robbie Burns—[Laughter.] As a great patriot, he would have shared the Government’s anxiety to ensure that the security of our citizens is protected in a proportionate and necessary way. I therefore think that the clause strikes the right balance.

Investigatory Powers Bill (Ninth sitting)

Debate between Robert Buckland and Joanna Cherry

Committee Debate: 9th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[The Solicitor General (Robert Buckland)]

I am grateful to the hon. and learned Gentleman. We need not rehearse the arguments that we looked at in some detail a few days ago, but I will say what I said then: although the Bill covers those points, there is merit in considering the matter carefully, and I shall continue to give it anxious consideration.

The sliding scale approach, to coin a phrase, is clearly relevant. We must remember that the absence of the Secretary of State in the case of the other agencies is not a problem, because we want them to have integrity and operational independence. We must always remember that underlying principle. I am not criticising anyone, but that sometimes gets a bit lost in the debate.

Having said that, the hon. and learned Gentleman’s point is well made about the different considerations that would present themselves to the mind of a commissioner, bearing in mind that the Secretary of State and national security and all those factors are not involved. I need not, perhaps, add more to the debate on that; I simply commend yet another clause that covers the double-lock authorisation process and applies it for the first time to the area of warrantry in question.

[Joanna Cherry]

I have very little to say, other than that I support the thrust of the argument made by the hon. and learned Member for Holborn and St Pancras; but I also note what the Solicitor General said about giving the matter anxious consideration. I am grateful to him for that, because it is a central concern.

[The Solicitor General]

I have nothing further to add.

Question put and agreed to.

Clause 97, as amended, accordingly ordered to stand part of the Bill.

Clause 98

Approval of warrants issued in urgent cases

[Joanna Cherry]

I beg to move amendment 439, in clause 98, page 75, line 25, leave out “considered” and insert

“had reasonable grounds for believing there was an emergency situation posing immediate danger of death or serious physical injury or that the physical security or integrity of the nation was endangered”.

--- Later in debate ---

[The Solicitor General]

May I deal with the amendments in reverse order? On amendment 440, I am happy to consider amending the relevant draft codes to make it clear that the notification of judicial commissioners should happen as soon as is reasonably practical. That wording is more appropriate than “immediately”, given that it may take some small period of time to draw together the materials that the commissioner would want to review when considering whether to approve the issue of a warrant. On the basis that we might return to this issue at a future date, I invite the hon. and learned Gentleman not to press his amendment.

The amendment tabled by the hon. and learned Member for Edinburgh South West, to which she spoke with admirable brevity, is well understood by the Government, and the arguments remain as they did in our debate on clause 22. We want to create a workable framework, and if we limit the grounds, my concern is that the scenarios and case studies I set out in that debate—the drugs case and the Daesh case—would not be caught. We have a clear definition of “urgency” in paragraphs 41 to 44 of the draft code. The draft code also has a helpful flowchart that clearly sets out the parameters within which those seeking such warrants should operate. For those reasons, I respectfully urge her to withdraw her amendment.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 98 ordered to stand part of the Bill.

Clause 99

Failure to approve warrant issued in urgent case

--- Later in debate ---

[Joanna Cherry]

Amendment 275 is a simple amendment to subsection (4), which sets out the matters that a targeted equipment interference warrant must “describe”. The amendment would change that word and require more specificity.

[The Solicitor General]

I am not sure whether that will make any practical difference, but I am happy to consider the hon. and learned Lady’s amendment.

[Joanna Cherry]

I am very grateful to the Solicitor General. I leave the other two amendments to the hon. and learned Member for Holborn and St Pancras.

[Keir Starmer]

Amendments 452 and 453 speak for themselves. Concern has already been expressed about the general nature of the requirements that must be met by warrants; this is a further example under the head of equipment interference warrants. Clause 101(3) sets out in some detail what is required, and the amendments would tighten that up by requiring more precision and more matters to be explicitly stated. They are a version of other amendments tabled to corresponding provisions for other warrants.

--- Later in debate ---

[The Solicitor General]

I am grateful to my hon. Friend, who speaks with many years of operational experience in the Metropolitan police. When he was a senior officer in that force, he had responsibility for investigations and took his responsibilities extremely seriously. I am grateful to him for his contribution. We have to balance any concerns about a jump to these powers with real-world responsibilities. I want clarity, but also an element of flexibility for those who investigate crime, so that they can get on with the job in an effective way and catch criminals. That is what we all want. I am worried that the amendment, well intentioned though it is, would complicate the process. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras not to press the amendment to a vote.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment for the time being.

Amendment, by leave, withdrawn.

Clause 101 ordered to stand part of the Bill.

Clause 102

Duration of warrants

Investigatory Powers Bill (Eighth sitting)

Debate between Robert Buckland and Joanna Cherry

Committee Debate: 8th sitting: House of Commons
Tuesday 19th April 2016 Public Bill Committees

[Joanna Cherry]

I think I can take this in fairly short compass. The clause deals with the lawfulness of conduct authorised by this part of the Bill. The amendment would delete clause 72(2)(b), the effect of which would be that conduct would have to remain unlawful if it could not be justified. As it is currently worded, the clause allows an exception to that principle, and that is not an appropriate exception. Conduct is either lawful or unlawful. If it is unlawful, it should be characterised as such and should not be justified. Strictly, if the amendment were to be passed, subsection (3) would have to be left out as well, for tidying-up purposes.

[The Solicitor General (Robert Buckland)]

May I reassure the hon. and learned Lady that the provisions relating to lawfulness of conduct authorised by part 3 of the Bill replicate those that currently apply in the Regulation of Investigatory Powers Act 2000, and the Bill goes no further in providing indemnity from civil liability for conduct incidental to or reasonably undertaken in connection with a communications data authorisation? The clause is drafted to ensure that a person who engages in conduct only in connection with an authorisation cannot be subject to civil liability unless that activity could itself have been authorised separately under a relevant power. It must follow that the removal of that provision would mean that a person who was acting lawfully under an authorisation that had properly been granted under the Bill would be at risk of civil liability if some incidental or reasonably connected conduct were not expressly covered by the authorisation.

I can see the thrust of the hon. and learned Lady’s argument, but I hope that I have reassured her that the Bill does not go any further than the status quo. For that reason, I urge her to withdraw the amendment.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment for the time being.

Amendment, by leave, withdrawn.

Clause 72 ordered to stand part of the Bill.

Clause 73 ordered to stand part of the Bill.

Clause 74

Certain transfer and agency arrangements with public authorities

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

--- Later in debate ---

[The Solicitor General]

Amendment 306 is tabled, quite properly, to tease out from the Government the more detailed reasoning behind the important statement made by the Home Secretary on Second Reading. The hon. and learned Lady is quite right to refer to that statement. I once again reiterate the Government’s position that we will not be requiring the retention of third party data through these provisions.

The question is how best to achieve that; therein lies the tension. Attractive though the approach advanced by the hon. and learned Lady might be, there are some drafting issues and problems about legal certainty, which mean that putting those provisions in the Bill with suitable detail is problematic.

One of the main functions of the Bill—and one of my desiderata—is to ensure that it is resilient and stands the test of time. My concern is that if we end up with a definition that is too technologically neutral, it will either fail the test of time in this place, or be subject to challenge. As a Law Officer, legal uncertainty is something I have to take very seriously when considering how legislation is presented. That is why I commend the detailed provisions within the draft code of practice on third party data—paragraphs 2.68 to 2.72—that the hon. and learned Lady referred to. That is not only an explicit reiteration of our commitment but the sort of detail needed for those operating the provisions, which could not be properly put in the Bill.

It is generally well understood what third party data are, but perhaps I should briefly explain the important areas of detail that could not be covered on Second Reading. Where one communications service provider is able to see the communications data in relation to applications or services that run over their network, but does not process that communications data in any way to route the communication across the network, then that is regarded as third party data. For example, an email provider, such as Yahoo or Gmail, knows that a certain internet access service, such as BT Internet, was used to send email, but that fact is not needed or used to send it. So it is in everybody’s interest, not least that of the service providers themselves, that there is sufficient clarity about the data that can be retained under the provisions. As I have said, I think the code of practice is the right vehicle for this. It is also the appropriate vehicle for ensuring that there can be a sufficiently detailed definition of third party data for the reasons I have outlined. In those circumstances, I respectfully ask the hon. Lady to consider withdrawing her amendment.

[Joanna Cherry]

I am not happy about withdrawing the amendment in the absence of elaboration of what the Solicitor General means by drafting issues and problems of legal certainty. I am not clear at the moment why we cannot have both the amendment and the further elaboration that will be provided in the codes of practice.

Amendment proposed to amendment 306: (a), leave out “notice” and insert “warrant”.—(Gavin Newlands.)

Question put, That the amendment be made.

--- Later in debate ---

[The Solicitor General]

The hon. Gentleman makes a proper point about security. This, in respect of the code of practice and in collaboration with the industry, will be at the forefront of everybody’s mind. What is important is that the Government do not have a pick-and-mix or help yourself avenue within which they can mine data for their own capricious purposes.

The framework of the Bill quite properly severely circumscribes the circumstances within which the Government can seek access to that material. Most importantly, when it comes to content, the warrantry system—the world-leading double lock system we are proposing—will apply. An internet connection record is not content; it is a record of an event that will be held by that telecommunications operator. It relates to the fact of whether or not a customer has connected to the internet in a particular way. If it goes further into content, the warrantry provisions will apply. It is important to remember that framework when determining, and describing and putting into context, what we are talking about. The Committee deserves better than indiscriminate shroud-waving about prospects and concerns that simply do not arise from the measures in the Bill.

The hon. Gentleman quite properly raised the Danish experience. The Danish Government and authorities are in regular conversation with the United Kingdom Government. That dialogue goes on because they are naturally very interested to see how our model develops, although there are important differences that should be set out briefly. The Danish legislation was not technology neutral, unlike these proposals, because it specified two options that proved unworkable. We work with operators case by case so that the best option for their network at the appropriate time will be determined. The Bill builds on existing data retention requirements, such as the retention of data necessary to resolve IP addresses, which regime already exists under the Counter-Terrorism and Security Act 2015. The full cost recovery underpinning by the Government means that there is no incentive for communications service providers to cut corners, as I am afraid happened in Denmark. There are important differences between the two.

The hon. Gentleman rightly talks about IPV6. Although it is a great aim and something that all of us who have an interest in this area will have considered carefully, it still is, with the best will in the world, a way away, I am afraid. It will take a long time for all service providers to implement in full, and until then, there will be both types of system. Even with IPV6, CSPs may choose to implement address sharing or network address translation, meaning that it is not the guaranteed solution that perhaps has been suggested. Servers who host illegal material are much less likely to move to that system, meaning that, in practice, IPV4 may well remain with us. We therefore have to act in the interim, because, as has been said, the drift away from what I have called conventional telecommunications to the internet carries on whether we like it or not. We have to face up to the world as it is, rather than the world as we would love it to be, and therefore take into account the fact that we are in danger of being unable to detect criminality and terrorism.

[Joanna Cherry]

The Solicitor General says we have to face up to the world as it is. Why is it, then, that no other democratic nation in the world is implementing legislation of this sort?

[The Solicitor General]

The hon. and learned Lady has asked that question before, and I have said to her before that somebody has to step up, try it and make that change. I am proud that the United Kingdom is prepared to do that, as we have done it in so many ways.

[Joanna Cherry]

Is the Solicitor General aware that it is not that other countries have not looked at the problem? They have looked at the problem and decided that this is not the way to solve it.

--- Later in debate ---

[Joanna Cherry]

As the hon. and learned Gentleman says, the amendments would require that review under clause 80 be by a judicial commissioner rather than the Secretary of State. Will the Government tell us why the provision of such a route of review would not, in their opinion, give the telecommunications providers greater reassurance that notices are not only lawful, necessary and proportionate but stable and legally certain? It seems to me that a review by a judicial commissioner, or at the very least by the Investigatory Powers Commissioner, would provide that reassurance.

[The Solicitor General]

The hon. and learned Lady asks a perfectly proper question. I reiterate the position that we have taken in principle: the Secretary of State is the appropriate and accountable person to be responsible for reviewing retention notices. However, although the Secretary of State must be responsible for giving notices and must therefore be the person ultimately responsible for deciding on the outcome of the review, that does not mean that she or he can make the decision on the outcome of the review without consultation—far from it.

Clause 80(6) ensures that the Secretary of State must consult both the Investigatory Powers Commissioner and the technical advisory board. The commissioner must consider the proportionality of the notice; the board must consider the technical feasibility and financial consequences of it; and both must consult the operator concerned and report their conclusions to the operator and the Secretary of State. Only then can the Secretary of State can decide whether to vary, revoke or give effect to the notice. That system provides rigorous scrutiny of the notice and maintains the accountability of the final decision resting with the Secretary of State. We therefore believe it is the best mechanism for review. Accordingly, I commend the unamended clause to the Committee.

Investigatory Powers Bill (Seventh sitting)

Debate between Robert Buckland and Joanna Cherry

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.

[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.

--- 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.

[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 ---

[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.

--- Later in debate ---

[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.

Investigatory Powers Bill (Sixth sitting)

Debate between Robert Buckland and Joanna Cherry

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

[The Solicitor General]

It is with this amendment, I am afraid, that we have a strong disagreement. To say that there are no thresholds is a misrepresentation of the situation. Putting it bluntly, the Government’s worry is that creating a serious crime threshold will miss a whole panoply of crimes that are extremely serious to victims. I am thinking in particular about crimes relating to harassment, stalking and other types of offences that would not fall within the threshold of serious criminality.

It is important that we couch our remarks carefully—the hon. and learned Gentleman has tried to do that, and I respect him for it. We are not talking about targeted interception here; we are talking about the retention of evidential leads—information that could, not of itself build a case, but which, in combination with other material, could allow investigators to build a case against a suspect. The analogy is with existing comms data, namely telephonic records and mobile phone records—the sort of material that he, I and others on the Committee have regular use and an understanding of, as prescribed by the RIPA regime. We are all familiar with it. The difficulty is that, as the days go by, the reliance by criminals on conventional methods of telecommunication changes.

The old system, where the SMS message would be the way things would be done, is increasingly falling into disuse. WhatsApp, internet chat forums and all sorts of encrypted means of communication are now being used. There is no doubt that the ability of the agencies—the security and intelligence agencies, the police and other agencies—to obtain even those evidential threads is therefore becoming more difficult. We are not talking about content, nor should we be. I draw an analogy with the sort of drugs observance case where the police officers can see people coming and going from a house that is of interest, but cannot see what is going on inside that house. That is what we are talking about here. Adopting these amendments would be entirely the wrong step to take.

[Joanna Cherry]

It is interesting that the Solicitor General chooses the example of surveillance in a drugs operation to tell us what we are talking about. That would be a serious crime, but as the shadow Minister has drawn attention to, clause 53(7) allows authorisations to obtain data not just for serious crimes, but for a whole plethora of things, including protecting public health, taxes, duties, levies and so on. Notwithstanding his opening comments, does he not accept that it is telling that the example he chooses is one of serious crime?

[The Solicitor General]

Not all drugs supply is necessarily serious. We might be talking about a particular class of drugs, which might not qualify within the criteria. Is the hon. and learned Lady seriously suggesting that we should not have the capability to draw evidential leads on cases of harassment, stalking or other offences that we all know are a particular problem when it comes to the abuse of victims?

[Joanna Cherry]

Stalking is, in my respectful submission, a serious crime. The thrust of these amendments is that the authorisation should be for serious crime, and by a judge.

[The Solicitor General]

The hon. and learned Lady wants to have her cake and eat it. The hon. and learned Member for Holborn and St Pancras said he wants a much higher threshold. I am sorry, but we cannot play around with this. The Committee is dancing dangerously on the edge if it seeks, in an ad hoc way, to try to subjectively define what serious crime is.

--- Later in debate ---

[The Solicitor General]

I hear what the hon. and learned Gentleman says, but I do not agree with him about the threshold. It is set out in subsection (7). I can give another example: what about a missing person inquiry? We would not know whether it was a crime; it might well be a young person who has run away. We all have some direct or indirect experience of that.

I will address the point, but I have to be careful, because the case to which the hon. and learned Gentleman has referred is sub judice. I do not disagree with any of his characterisation, by the way, and of course I have read with care the Court of Appeal judgment of Lord Justice Lloyd Jones, but the hearing in the Court of Justice of the European Union is this week, I think. We will have to see how that develops.

I am very conscious of how case law develops in this area, and I am mindful of it, bearing in mind my duty as a Law Officer to uphold the rule of law. I am sure the hon. and learned Gentleman understands that, but where we are is in a sensible place. My worry is that if we start to get too restrictive, we will in effect end up in a position in which many serious matters—matters that are serious to the victim, but might not be serious according to other criteria—are lost or missed.

I have already mentioned necessity and proportionality. I should also pray in aid the fact that there will have to be compliance with a detailed code of practice and independent oversight and inspection of the regime by a senior judge, currently the Interception of Communications Commissioner. The current internal authorisation regime is working well. No deliberate abuse of it has been identified in any ICC reports, which speaks volumes for the integrity of the current system.

[Joanna Cherry]

Will the Solicitor General accept that there have been severe concerns lately about what turned out to be rather destructive surveillance activities by the Metropolitan police in relation to covert human intelligence sources? Does he agree that it is highly unlikely that such practices would have occurred if there had been a system of prior judicial authorisation, rather than internal authorisations?

[The Solicitor General]

The hon. and learned Lady knows, of course, that that matter is now being investigated, in an inquiry led by Lord Justice Pitchford. I am not saying that she is not entitled to mention it, but it really is a different set of circumstances. That particular means—the covert use of human intelligence sources—is not what we are talking about, with the greatest respect. We are talking about ensuring that authorities prescribed by statute have the capability to continue finding the sorts of evidential lead that until now have been almost exclusively the province of conventional telecommunications.

[Joanna Cherry]

Perhaps I can put another example to the Solicitor General. Towards the end of last year, it was revealed that, due to what a judge labelled systemic internal failings in how the National Crime Agency applied for a warrant, a number of trials were at risk of collapse. Earlier in the year, Mr Justice Hickinbottom lamented what he called an

“egregious disregard for constitutional safeguards”

within the NCA, in the case of Chatwani and others v. the National Crime Agency and others. Those are examples of where the system is not working.

[The Solicitor General]

I am familiar with what the hon. and learned Lady is talking about, but again, that involves a particular failure by the NCA on warrantry. Here we are talking about various agencies’ abilities. With respect to her, it is not the same. We are discussing a different regime. Tempting though it is to read over, that would be to frustrate the important work of many law, detection and investigative agencies in our country.

I do not see the purposes within the Bill as inconsistent in any way with the purposes set out in the exemptions from and limitations of the right to privacy in article 8.2 of the European convention on human rights. There has never been a serious crime threshold for the acquisition of communications data. No such limit is placed in article 8.2, which is why the Government’s position on this issue—I will not mention the case—is legally respectable and sustainable. That is why the provisions in the clause meet the challenge that faces the agencies in a way that is proportionate and necessary, and that keeps pace with the breathtaking rate of change of technology being taken advantage of by many people of good will, but also by people of less than good will. For that reason, I ask that the amendment be withdrawn.

--- Later in debate ---

[Joanna Cherry]

I am very much in agreement with everything that the hon. and learned Gentleman said on the last group. The Scottish National party’s position is that access to communications data should be by means of a judicial warrant. We share the concerns that he articulated about the lack of a proper threshold in clause 53(7). I do not intend to press these amendments to a vote. I associate myself with his position, and I reserve my position on this matter for a later stage. This is an absolutely crucial clause, and it is extremely concerning, as he said, that there is no proper threshold in it.

[The Solicitor General]

I am grateful to the hon. and learned Lady for her succinct remarks. I will simply make the following observations about her amendment. It would remove the ability of the relevant public authorities to apply for communications data authorisation to test equipment or for technology development purposes. It is vital that those who are authorised to acquire communications data are able to test existing systems and to assist the development of new equipment or systems. Without that ability, we will not know whether the equipment will provide the required information in a real-life investigation, and nor will we be able to fix errors in systems where they are detected. We fear that that could have a seriously detrimental effect on our law enforcement agencies’ ability to prevent and detect crime and may lead to mistakes, which are in nobody’s interest—least of all that of the public, whom we serve. Therefore, this is a vital further safeguard. With respect, we are somewhat puzzled about why the amendment was tabled, but we heard the hon. and learned Lady and we respect her position. For those reasons, we oppose the amendment.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[The Solicitor General]

As a preface to my remarks, which will have to be succinct, I do not want to stray into the debate on clause 78. I do not want to criticise the hon. and learned Member for Edinburgh South West, but she has made points that will properly be answered when we come to that debate. She is right to raise the point about the Danish experience and, like me, she has read the evidence in the Committees, but there are significant differences between what we are trying to do in the UK and what happened in Denmark. The Danish experience was not a great one. There are significant operational, financial and other differences that mean that the Danish Government are looking carefully and with a great interest at what we are attempting to do in the UK. This is not straightforward and it is not easy, but it is our duty as legislators to get ahead of the curve when it comes to the development of technology and to make sure we are not playing catch-up when it comes to criminals’ increasingly sophisticated use of the digital sphere.

[Joanna Cherry]

Setting the Danish experiment to one side, can the Solicitor General tell us why the other “Five Eyes” countries are not requiring operators to retain similar internet connection data? Why are no other western democracies doing that?

Investigatory Powers Bill (Fifth sitting)

Debate between Robert Buckland and Joanna Cherry

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

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Investigatory Powers Bill (Fourth sitting)

Debate between Robert Buckland and Joanna Cherry

Committee Debate: 4th sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[Joanna Cherry]

I am not going to at this stage, thank you, Mr Owen.

[The Solicitor General]

It is a pleasure to serve under your chairmanship, Mr Owen, for the first time in what I am sure will be a number of important sittings.

May I address the amendment moved by the hon. and learned Member for Holborn and St Pancras? I am grateful to him for rightly pointing our way to paragraph 4.7 of the draft code. Indeed, by reference, paragraph 4.8 gives a clear basis for the decision maker to assess the nature of the proportionality. Therein lies something of the problem with regard to the approach to be taken in the clause. It is tempting, on the face of it, to include the test in the primary legislation, but it might provoke more questions than answers.

Naturally, when one makes a bald statement about proportionality, people want to know more, so where does one end in terms of adding to the primary legislation the detail that is necessary for decision makers to reach a considered conclusion? My simple argument is that the amendments therefore are not necessary. What makes this the right balance is the combination of the primary legislation that sets out the framework and a living document—the code of practice—that will be more easily amendable and accessible in terms of any changes that need to be made in the light of experience and practice.

We do not want to end up with a situation where this type of warrantry can only be obtained when all other avenues have been exhausted, a bit like the position when one comes to an ombudsman. That would be an artificial scenario to end up with and would cause problems operationally. I can think of examples where the exhaustion of other avenues will just not be practicable. For example, in a kidnap situation where an individual’s life might be in danger, this type of warrantry would probably be the most appropriate step to take before any other type of intervention. Of course, there are occasions where other means of intelligence gathering, such as live human intelligence sources, might be high-risk or result in a higher degree of collateral inclusion.

I am concerned that we do not end up, despite the best intentions of the hon. and learned Gentleman, with an inflexible approach on the face of primary legislation. It is far better, in my submission, to keep the balance as it is, as clearly outlined in the code of practice and the framework within the clause.

--- Later in debate ---

[The Solicitor General]

I am grateful to the hon. and learned Gentleman. I remind myself that we will be able to debate those new clauses but I thought it important to look, in essence, at the full picture of David Anderson’s recommendations, bearing in mind that we had quite a lively debate about the role of the Executive. It would be a mischaracterisation of Mr Anderson’s view about the role of the Executive to say that somehow there was a wholesale move away from the Executive’s position with regard to warrantry and what Government Members certainly strongly feel is the important role of the Executive.

Coming back to where we are with regard to the judicial review test, we have already heard reference to the noble Lord Pannick. The intervention he has made is powerful and it is important that he thinks the test is robust. The criticism is, perhaps, not justified. Of course, that is not the only basis on which we have reached that conclusion. We all know—those of us who are lawyers and those who are not—the growing importance of judicial review in our public life. It is a concept that has evolved and that will continue to evolve. It is flexible, too.

[Joanna Cherry]

It is so general. I have advised people on the potential for judicial review. Does the Minister agree that it is difficult to advise a client on the potential for judicial review in the absence of a reasoned decision? In this Bill, there is no duty on the Secretary of State to give a reasoned decision, so judicial review scrutiny will be happening in a vacuum in the context of a decision for which no written reasons have been given because the Bill does not demand it.

[The Solicitor General]

Herein lies the problem. We have the judicial lock—the commissioners, of course, will be giving reasons—so that there is a check and balance upon the decision of the Executive. The hon. and learned Lady makes a proper point, because Executive decisions are administrative decisions that are judicable. I want to avoid further unnecessary and, frankly, unhelpful litigation that will get in the way of the important work of warrantry, which has to be undertaken, bearing in mind not only the interests of national security but, looking down the scale, the various scenarios that will confront commissioners, such as serious crime cases. The flexible scrutiny will allow differing approaches to be taken. Returning to the main point, I am worried that we might end up creating something that is too inflexible, which will create injustice rather than solve the problem.

[Joanna Cherry]

But how will the judicial commissioner scrutinise the Secretary of State’s decision, having regard to judicial review principles, when she is under no duty to give reasons for it? How will they do it practically?

[The Solicitor General]

They will have access to all the material that the primary decision maker has. The hon. and learned Lady is right to ask the question but, simply speaking, the judicial commissioner will have access to the material that the Secretary of State has. In fact, the judicial commissioner will be able to ask for more material, so there should not be any fear that the vacuum she mentioned will exist in relation to the judicial lock.

Returning to the obvious experience of judicial commissioners, I am keen to ensure that we end up in a position where commissioners feel that, on a case-by-case basis, they are not only free to agree with the Secretary of State, but are absolutely free to disagree. If there is not that element of flexibility, this double lock will be meaningless. Again, without casting any imputation upon the good intentions of those who have tabled amendments, my concern is that, first, this amendment is based on a difference of opinion on the nature of the judicial commissioner stage. Secondly, there is a danger that we might end up in a position where decisions are being second-guessed in a way with which the judiciary would feel uncomfortable, and where the balance between the actions of the Executive and proper scrutiny by the judiciary is not clearly delineated.

--- Later in debate ---

[The Solicitor General]

I am not going to point to that because, as I have said, it is important to have wide discretion. But equally, as Sir Stanley Burnton said, there will be other approaches and judges will be compelled to take a much closer look or hands-on approach—I think Sir Stanley said “stringent approach”—when looking at the case. But that will depend on the case before the commissioner. For example, a case of extreme importance with potentially draconian impacts deserves a very close look under the microscope. That is important. What I want to get across is that there should be not a sliding scale, but a gradation and wide discretion in the test that allows differing approaches to be taken.

In response to the hon. and learned Gentleman, I would be surprised to see bald decisions on Wednesbury unreasonableness. Bearing in mind that, most of the time, European convention on human rights points will have to be engaged, and, by dint of that, necessity and proportionality will have to come into play anyway. Perhaps the point is too axiomatic to be made, but it is important that we do not get too fixated by a worry that judges will take an old-fashioned clubbish approach to whether the Home Secretary is totally out or order. I do not believe that will be the case, bearing in mind the calibre and experience of the commissioners who have done the work up to now and who I expect will carry on doing it in the unified commission that we will create.

In a nutshell—the point does not improve on repetition—there is a danger that in going down the seductive line of seeking greater clarity, we may end up fettering the reviewer’s discretion, which I do not think is in anyone’s interest and does not support the thrust of what all hon. Members want: an effective lock mechanism that properly involves the judiciary in a way that is unprecedented but welcome in our mature democracy.

[Joanna Cherry]

I have heard nothing that answers what in my submission is a knockout point about lack of reasons. I am not tooting my own trumpet because it was not my idea. I got the point from my learned devilmaster, Laura Dunlop QC, a distinguished silk at the Scottish Bar and former law commissioner. I asked her to look at this and she said the first thing that occurred to her was how can there be scrutiny under judicial review principles when there is a vacuum of any reasoning. I have not heard any answer to that question in what the Solicitor General has said, with all due respect to him.

On that basis, I remain of the view that amendments 62 and 89 will be essential in due course, but following the course of action we have taken today, I will not insist on them at this stage. I reserve the right to bring them forward at a later stage, about which the Chairman has advised me.

--- Later in debate ---

[Joanna Cherry]

SNP amendment 102 is very similar to amendment 39, which the hon. and learned Member for Holborn and St Pancras spoke to, but there are two differences. First, on the areas in which a judicial commissioner must instruct the special advocate, I have deleted

“in the interests of the economic well-being”

in line with an earlier amendment. Secondly, in relation to the appropriate Law Officer who appoints special advocates, I have inserted, for the purposes of subsection (7)(b), the Lord Advocate as opposed to the Advocate General. The reason for that is that subsection (7)(b) deals with

“the consideration of items subject to legal professional privilege”,

which would relate to devolved rather than reserved matters in general terms. In my submission, it would be respectful for the Lord Advocate as well as the Advocate General to be consulted about special advocates.

I am wedded to the notion of special advocates. I do not have a huge amount to add to what the hon. and learned Gentleman said, other than to point out that David Anderson QC, in paragraph 18 of his written evidence to this Committee submitted following his oral evidence, states that he would

“like to confirm my view that the right of the Judicial Commissioners under the dual lock system should be clearly acknowledged”

and

“use standing counsel to act as amicus where appropriate in relation to applications for the approval of warrants”.

The special advocate scheme that I advocate goes a bit further than that. The purpose of the special advocate would be

“to represent the interests of any person or persons subject to the warrant or the wider public interest”

in the protection of privacy. The amendment would place a judicial commissioner under a duty to appoint a special advocate in a case involving a claim of national security or one that is subject to legal professional privilege. The appointment of the special advocate would ensure that the material produced to support an application is subject to adversarial testing as far as possible. That is the broad thrust of the amendment.

[The Solicitor General]

I am grateful to the hon. and learned Member for Edinburgh South West and the hon. and learned Member for Holborn and St Pancras. The hon. and learned Lady was very clear about the different basis of her amendment. My concern is that there are two schools of thought here. There is the amicus curiae school of thought, with which I have a great deal of sympathy. One of the roles of the Law Officers is, when we are approached by various jurisdictions, to consider whether the attorney himself should intervene or whether the court should have an amicus appointed. The hon. and learned Gentleman is right to talk about some of the confusion that can exist in regard to inherent jurisdiction. I am going to take that point away and consider it.

I am concerned about a full-blown replication of the important special advocate system that we have to assist, for example, the Special Immigration Appeals Commission, or of the genesis of the Justice and Security Act 2013 and the closed material procedure. There is an important difference between the public interest in having special advocates and this type of scenario. In such cases, there are affected parties—usually respondents to important applications—for whom huge issues are at stake and who need that sort of quality representation within what we accept are exceptional and unusual departures from the principle of open justice. That is why special advocates were created. They perform an invaluable and important role.

I do not see the read-across from that to this scenario. What we have here is an investigatory procedure. It takes place at the early stages—to take a case example—of the investigation of a crime or a threat to national security. There may not be at that stage an identifiable suspect; there is, therefore, a difference and a difficulty in identifying the prejudice that could be caused to the interest of an individual who is a party to the proceedings. It is a different scenario and, tempting though it might be to introduce that type of regime, it would serve only to introduce delay, bureaucracy and extra expense with no tangible benefit to the integrity of the system.

In a nutshell, I will consider carefully the amicus curiae point, but I have wholly to reject a wider approach and the creation of a special advocate system which, frankly, would go beyond even the American jurisdiction, with which comparison is often made—in the foreign intelligence surveillance court in the US they have amici curiae available to assist the court. On that basis, I urge the hon. and learned Member to withdraw the amendment.

--- Later in debate ---

[Joanna Cherry]

Thank you, Mr Owen, and apologies to Committee members. The purpose of the amendments is to—sorry, I have lost my train of thought completely.

[The Solicitor General]

I think we were dealing with urgent cases. I hope that is of some assistance.

[Joanna Cherry]

Yes, I am very grateful to the Solicitor General. I skipped ahead to modifications, so I will skip back to urgent. The purpose of the amendments is to specify that urgent warrants can be issued only when they are necessary, in an emergency situation that poses an immediate danger of death or serious physical injury, and that a judicial commissioner should be informed immediately that an urgent warrant has been issued. They also seek to reduce the period within which a judicial commissioner must decide whether to approve the issue of a warrant to 24 hours after its issue.

There were differing recommendations from the Joint Committee and the Intelligence and Security Committee. I think I am correct in saying that the ISC recommended 24 hours and the Joint Committee 48. In terms of case law, recent decisions of the European Court of Human Rights suggest that 48 hours would be an absolute minimum, so I would insist on that as a fall-back position.

--- Later in debate ---

[The Solicitor General]

This is, of course, an important issue that has already seen a good deal of consideration for the Government and a move away from the original proposal to three working days; the hon. and learned Gentleman is right about that.

Although we are considering the matter carefully, at this stage the right balance is being struck between the interests of the security services and the other agencies in ensuring that crime is detected and prevented at the earliest possibly opportunity, and the interests of preserving the balance between the rights of the individual and the need to deal with crime and threats to national security. I am happy to consider amending the relevant draft codes to deal with the question about the notification to judicial commissioners, so that it is made clear on the face of the code that that should happen as soon as reasonably practicable. That wording is more appropriate than “immediately”, given that it may take a small period of time to draw together the materials that the commissioner will wish to review when considering whether to approve the warrant.

The hon. and learned Member for Edinburgh South West made a point about decision making in a vacuum. The commissioner will have the decision of the Secretary of State and all the materials upon which that Minister has made the decision, as well as access to further material. I think it is clear that the decision maker will have everything they need and more to come to an informed and reasoned decision based upon the principles of judicial review. On the basis of my undertaking to consider amending the draft code of practice, I hope that the hon. and learned Member for Holborn and St Pancras feels able to withdraw the amendment proposing the word “immediately”.

Let me deal with the central points about the decision and the length of time within which the warrant should be approved. The effect of the amendments would be to reduce that, and I recognise that the Joint Committee that undertook the pre-legislative scrutiny of the Bill made a similar recommendation. We have therefore responded in an appropriate way by shortening the window within which urgent action can be taken. That has been widely welcomed. It is an important consideration and an example of how, throughout this procedure, the Government have taken note of reports, listened and acted accordingly on those recommendations.

It is not in anybody’s interests to create so tight a statutory framework that decisions end up being rushed. I therefore consider that the three working days now provided for in the Bill should give sufficient time for the judicial commissioner to be presented with and to consider the grounds upon which the Secretary of State decided to issue the urgent warrant. My worry is that by reducing the time period even further, we would give the commissioner even less time, which would lead to the sort of decision making that would perhaps not be in anybody’s interests, let alone those of the state.

Amendment 91 seeks to define urgency on the face of the Bill and to replace the definition currently provided for in the draft statutory codes of practice with a narrower definition. As the Committee will appreciate, we must provide law enforcement and the security and intelligence agencies with an operationally workable framework. We will have failed with this Bill if we provide the agencies with the powers that they need, but with ones that cannot keep up with the pace and scale of the threats that we face. I know that it is always a challenge for legislators to try and—to use the modern phrase—“future-proof” legislation, but it is important that we create a framework that is not only clear and simple to understand, but sufficiently flexible to take into account the fact that, from month to month, the nature of the threat changes.

I am afraid that the effect of the amendment would be to curtail that ability because the definition would be too narrow. The draft statutory codes of practice, which we have all been considering, define urgency, which is determined by whether it would be reasonably practicable to seek the judicial commissioner’s approval to issue the warrant in the requisite time. That time period would reflect when the authorisation needs to be in place to meet an operational or investigative need.

The code sets out the three categories with which we are familiar: first, where there is the imminent threat to life or serious harm, and I gave the example of a kidnap case earlier. The second is where there is an valuable intelligence-gathering opportunity, where the opportunity to do so is rare or fleeting—that might involve, for example, a group of terrorists who are just about to make that trip overseas and are making the final preparations to do so. The third is where there is a time-limited significant investigative opportunity—here I speak with years of experience of dealing with drugs cases—such as the imminent arrival of a major consignment of drugs or firearms, when timing is of the essence.

I am afraid that narrowing the definition of urgency so that it only relates to an immediate danger of death or serious physical injury to a person would mean significant lost opportunities when it comes to investigation and gathering of intelligence. It would have an impact on the ability to act in a way that would allow interception at a time, for example, that would be apposite to capture a particular drugs seizure.

Another example would be the terrorist cases that I deal with week in, week out—in terms of the function of the Law Officers granting consent to prosecution. If, for example, a group was making final preparations to travel out to Syria to join Daesh, it would cause a problem for the security and intelligence agencies if they were not able to seek urgent authorisation to intercept telephones because there was no immediate danger of death or serious physical injuries.

In my considered opinion, I am afraid that the amendment would allow a significant gap in the security, intelligence and law enforcement agencies’ ability to keep us safe. I do not think that any hon. Member in this House wants that to happen. I know that it not their intention but it is my genuine concern. On that basis, I invite hon. Members to withdraw the amendment.

[Joanna Cherry]

I have listened carefully to the Solicitor General. The difficulty for him and the Government is this: according to recent case law from Strasbourg, a 48-hour timeframe for authorisation would be the maximum to harmonise the process with that recent case law. The case of Zakharov v. Russia included that a complaint for urgent interception could occur without judicial authorisation for up to 48 hours. There really is no reason why the UK should allow a longer period for approved surveillance than Russia. The difficulty with three working days is that if they fall over a weekend, it can mean five days or, indeed, if it is a bank holiday weekend, six days. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Clause 23

Failure to approve warrant issued in urgent case

--- Later in debate ---

[Joanna Cherry]

I will keep this fairly brief. The amendment would require a judicial commissioner to order that material collated under an urgent warrant that he does not authorise subsequently be destroyed, except in exceptional circumstances. As the Bill stands, should material be obtained under an urgent warrant that is later unapproved by the judicial commissioner, the judicial commissioner may, but is not required to, order destruction of material obtained. Once again, it is my argument that the provision, as it stands, creates a significant loophole that could be used to bypass the legal protections that purport to be provided by the judicial review mechanism.

An urgent warrant allows the relevant agency to access material that it may not be authorised to access in law. Permitting the retention of that material in anything other than exceptional circumstances creates a clear incentive to use the urgent process in inappropriate cases so, in order to ensure that the applying agencies—the agencies that apply for warrants—only use the urgent process where strictly necessary, the Bill needs to ensure that there are no advantages to be gained from seeking an urgent warrant where it is not strictly necessary. The amendment would ensure that where a judicial commissioner does not authorise the use of the warrant retrospectively, the position must be that the material collected is destroyed, except in exceptional circumstances.

[The Solicitor General]

I am once again grateful to the hon. and learned Lady for setting out her place clearly and with admirable succinctness. There is a problem with the amendment because it very much begs the question of what might constitute exceptional circumstances. The question of who will determine whether the threshold had been met in a given instance is also raised. Introducing that caveat to the Bill would unnecessarily complicate the commissioners’ decision-making process. The commissioners will be extremely well qualified to decide how material should be used when cancelling a warrant. They will take into account all the relevant circumstances on a case-by-case basis, and the clause, as drafted, allows them to do just that without the necessity of introducing subjective terms.

The amendments also suggest that the only two viable options following the failure to approve a warrant issued in an urgent case are to destroy the data or, in undefined exceptional cases, to impose restrictions on their use. That is unnecessarily limiting. There may be occasions when vital intelligence is acquired that could be used to save lives or to prevent serious crime, and where using that intelligence may not involve any further undue incursions into privacy. In that situation a judicial commissioner may wish to allow the intercepting agency to continue with its work without restriction in the interests of the great benefit it might have. Of course, that is a decision for the commissioner to determine, and clause 23, as drafted, allows just that. I am afraid that the amendments would mean that a judicial commissioner could not choose, after carefully considering the facts of the matter at hand, to allow such vital work to continue unrestricted. My worry is that the unintended consequences of such a proposal could seriously inhibit the work of the intercepting agencies.

Finally, the amendments would entirely remove the ability of a commissioner to decide what conditions may be imposed upon material selected for examination. By removing clause 23(3)(c), the remainder of the clause would relate only to material obtained under a warrant. Of course, a targeted examination warrant does not authorise the obtaining of any material, but rather the examination of material obtained under a bulk warrant, which is why clause 23(3)(c), as drafted, includes a specific provision that allows a judicial commissioner to direct how material that has been selected for examination under a rejected urgent warrant should be used.

In effect, the amendments attempt to change a carefully constructed safeguard that gives judicial commissioners absolute control over the actions of the intercepting agencies. I fear that the unintended result of these amendments would be an overall reduction of the judicial commissioners’ powers. For those reasons I invite the hon. and learned Lady to withdraw her amendment.

[Joanna Cherry]

I have nothing to add, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24

Members of Parliament etc.

--- Later in debate ---

[Joanna Cherry]

Picking up on what the hon. and learned Gentleman just said, the purpose of amendment 104 is to address a lack of consistency of approach in the Bill regarding the protection afforded to correspondence with Members of Parliament, journalists and lawyers. I stress that the purpose behind the amendment is not to seek a particular privilege for parliamentarians, lawyers or journalists, but to protect the correspondence of members of the public with lawyers, parliamentarians and journalists.

The Bill contains different approaches. Clause 24 affords protections to Members of Parliament subject to targeted interception warrants, but not to journalists seeking to protect their sources. Similarly, although the provisions later in the Bill on access to communications data to target journalistic sources provide for authorisations to be subject to judicial review, access to other comms data that might engage the privilege afforded to Members of Parliament or to legally privileged material is not so protected.

Amendment 104 would provide consistency of approach to all three categories of privileged information, modelling the approach broadly on the provisions in the Police and Criminal Evidence Act 1984—an English Act for which I must say I have much admiration. I am still trying to get to grips with it, but I think it is a good piece of legislation. It protects legally privileged material and journalistic material from interference during police searches.

The amendment would also provide a special procedure for access to MPs’ and journalists’ correspondence, which would be dependent on independent judicial authorisation, as opposed to authorisation by politicians. With all due respect to the Home Secretary, I did not find her triple lock on protection for parliamentarians terribly convincing. That is not a point about the present Government—it could apply to any Government of any persuasion—but it seems to me that having the Prime Minister as the triple lock does not give the appearance of political impartiality. Where parliamentarians’ communications are being interfered with, the authorisation should be judge-only.

Last night, I chaired an event with speakers from the Bar Council, the Law Society of England and Wales and the National Union of Journalists. They all consider that the protections in the Bill for journalists, for legal professional privilege and for parliamentarians are not sufficient. My own professional body, the Faculty of Advocates, which is the Scottish equivalent of England’s Bar Council, also considers that the protections in the Bill are not sufficient, as does the Law Society of Scotland.

I will quote what the Law Society of Scotland said in its evidence to the Joint Committee:

“On the 14 December we provided oral evidence to the Joint Committee, alongside the Law Society of England and Wales, expressing our shared and serious concerns in relation to professional legal privilege and the provisions of the Bill. Legal professional privilege”—

referred to in Scotland as the obligation of confidentiality—

“is key to the rule of law and is essential to the administration of justice as it permits information to be exchanged between a lawyer and client without fear of it becoming known to a third party without the clear permission of the client. Many UK statutes give express protection of LPP and it is vigorously protected by the courts. The ‘iniquity exception’ alleviates concerns that LPP may be used to protect communications between a lawyer and client which are being used for a criminal purpose. Such purpose removes the protection from the communications, allowing them to be targeted using existing powers and not breaching LPP.”

I do not wish to be seen to be making any special pleading, either as a lawyer and a politician or on behalf of the journalist profession. It is more about special pleading on behalf of the members of the public who contact journalists, parliamentarians and lawyers, and who wish to do so in confidence for a very good reason.

[The Solicitor General]

I am grateful to the hon. and learned Member for Holborn and St Pancras for seeking not to get ahead of himself with respect to the arguments on legal professional privilege. I feel a degree of sympathy, because the hon. and learned Member for Edinburgh South West was inevitably going to deal with these matters in the round. Although different considerations apply to each category—parliamentarians, journalists and legal professionals—both hon. and learned Members are absolutely right to lay emphasis not on individuals in those professions but on the client, the source and the constituent. That is why these roles have a special status: it is about the wider public interest. The Government absolutely understand that and we place it at the very heart of our consideration of how warrantry should operate in these areas.

As you will know, Mr Owen, there has already been significant movement by the Government as a result of the various reports that we know all too well. I am delighted that matters of legal professional privilege are now in the primary legislation in great measure. The debate will therefore be about the extent to which safeguards are placed in the primary legislation and about what form they take. I will heed the hon. and learned Gentleman’s exhortation and not stray too far into that area.

I will therefore deal with the amendment to clause 24 and the question of parliamentarians. We heard last year the Prime Minister’s statement about the issue and the important requirement that he or she is to be consulted before the Secretary of State can, with judicial commissioner approval, issue a warrant to acquire communications sent by or intended for a Member of a relevant legislature. The clause applies to all warrants for targeted interception, with the exclusion of warrants authorised by Scottish Ministers, and includes the all-important requirement for the Prime Minister to be consulted before a targeted examination warrant can be issued to authorise the examination of a parliamentarian’s communications collected under a bulk interception warrant.

Part 5 contains similar provisions for equipment interference carried out by the security and intelligence agencies. The important protection in clause 24 will apply to the communications of Members of Parliament, Members of the House of Lords, United Kingdom MEPs and Members of the devolved Parliaments and Assemblies. It is important to observe that for the first time, what was a doctrine for the best part of 50 years is now codified and enshrined in primary legislation.

It is important to remember in the spirit of the wider public interest that nobody, least of all parliamentarians, is above the law. The Wilson doctrine has perhaps been misunderstood for many years as a blanket exemption for parliamentarians, but that is exactly what it was not. It was actually an explanation that there will be times when the national or the public interest demands that the communications of Members of Parliament be intercepted because there might be criminal purpose behind them. We hope that that will never happen, but sadly human experience teaches us otherwise. It is therefore important to strike a balance between the proper exercise of the privileges of being a Member of this place or of the other Assemblies and Parliaments in the United Kingdom and the principle of equality before the law.

The amendments introduce the concept of special procedure material and try to combine the approach to the safeguards afforded to the three categories that I have discussed. To put it simply, I submit that what is on the face of the Bill and in the accompanying codes of practice already provide those safeguards and indeed go beyond what can be encompassed in primary legislation. At this stage, I will not say anything further, because I want to deal with points that I know hon. Members will raise about the other categories.

Investigatory Powers Bill (Third sitting)

Debate between Robert Buckland and Joanna Cherry

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

[Joanna Cherry]

I will deal with new clause 3 in fairly short compass. The amendment was suggested to me by the Scottish division of Pen International, which is a world association of writers. It would introduce a tort, or a delict as we call it in Scotland, for unlawful interception. Such a tort or delict exists already as a result of section 1(3) of the Regulation of Investigatory Powers Act 2000, and I am not entirely sure why it has not been replicated in the Bill. I would be interested to hear from the Solicitor General or the Minister for Security why the Government did not include the measure in the Bill, and whether they will give it serious consideration. It would give a meaningful avenue of recourse and act as a motivation to intelligence agencies, police forces and the Government to ensure that all interception is lawfully authorised, on pain of an action for damages if it is not properly authorised. It is really a very simple new clause modelled on section 1(3) of RIPA. I am interested to hear what the Government have to say about this suggestion.

[The Solicitor General (Robert Buckland)]

It is a pleasure to take this first opportunity to say that I am looking forward to serving under your chairmanship, Ms Dorries, and indeed to serving with all colleagues on the Committee.

I am grateful to the hon. and learned Lady for making her observations in a succinct and clear way. I am able to answer her directly about the approach that we are taking. One of the aims of the Bill is to streamline provisions to make them as clear and easy to understand as possible. She is quite right in saying that RIPA had within it this provision—a tort or a delict, as it is called north of the border, that would allow an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and to intercept communication on that system.

The Government have fielded a number of inquiries about the non-inclusion of the RIPA provision in the Bill. The circumstances in which it applies are extremely limited, and as far as we are aware it has never been relied on in the 15 years of RIPA’s operation. The provision applies only in limited circumstances because it applies to interception on a private telecommunications system, such as a company’s internal email or telephone system. Where the person with the right to control the use or operation of the system is a public authority, there are of course rights of redress under the Human Rights Act 1998, such as article 8 rights.

The Bill is intended to make the protections enjoyed by the public much clearer and we feel that introducing that course of action or replicating it would not add to that essential clarity, but I have listened carefully to the hon. and learned Lady and we are happy to look again at the issue in the light of her concerns. On that basis, I invite her not to press her new clause and I hope we can return to the matter on Report.

[Joanna Cherry]

I am grateful to the Solicitor General for his constructive approach. I am happy not to press the new clause at this stage on the basis that the Government will look at it. I am happy to receive any suggestions about the drafting, which is mine. I had some discussions about the terms of the drafting with Michael Clancy of the Law Society of Scotland and James Wolffe, the dean of the Faculty of Advocates, but any infelicities are my fault alone. I would be happy to discuss the drafting with the Government.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Definition of “interception” etc.

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

[Keir Starmer]

There are no amendments tabled to the clause, which we support, but I say for the record and for clarification that what is welcome in clause 3 is the spelling out in legislation of the extent of an interception—an issue that has bedevilled some recent criminal cases. Importantly, as the explanatory notes make clear, it is now provided in clear terms that voicemails remaining on a system, emails and text messages read but not deleted and draft messages stored on a system will count within the phrase “in the course of transmission” and will therefore be covered by the offence. We welcome that. I wanted to emphasise that point and put it on the record, because a lot of time and effort was spent when that phrase was not so clearly defined.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss new clause 4—Tort or delict of unlawfully obtaining communications data—

“The collection of communications data from a telecommunications operator, telecommunications service, telecommunications system or postal operator without lawful authority shall be actionable as a civil wrong by any person who has suffered loss or damage by the collection of the data.”

This new clause creates a civil wrong of unlawful obtaining of communications data.

[Joanna Cherry]

The new clause very much relates to what I said earlier about new clause 3. The intention is to create a civil wrong of unlawfully obtaining communications data as opposed to unlawful interception. Again, the drafting is mine and it could do with some serious tightening up, but my intention is to establish the Government’s attitude to the new clause. I hope that the Solicitor General will indicate that.

[The Solicitor General]

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

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

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

--- Later in debate ---

[The Solicitor General]

I hear what the hon. Gentleman says. I have already indicated that I will consider the matter further. I will simply give this solution. He mentioned the stealing of information. Information is property, like anything else, and of course we have the law of theft to deal with such matters. I do not want to be glib, but we must ensure we do not overcomplicate the statute book when it comes to criminal law. I will consider the matter further, and I am extremely grateful for his observations.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

[Joanna Cherry]

On a point of order, Ms Dorries, may I seek clarification on my position on new clause 4, which the Minister invited me to withdraw? I am minded to do so, having regard to what the Solicitor General said about the Data Protection Act and what the hon. and learned Member for South East Cambridgeshire said about misfeasance in public office, but as a novice in these Committees I seek some guidance. If I press the new clause to a vote now and it is voted down, does that prevent me bringing it back to the Floor of the House?

Investigatory Powers Bill (Second sitting)

Debate between Robert Buckland and Joanna Cherry

Thursday 24th March 2016 Public Bill Committees

[The Solicitor General (Robert Buckland)]

Q Thank you, Mr Walker; it is a pleasure to serve under your chairmanship. Mr McClure, you have made some powerful points, so thank you very much indeed for giving your perspective on the IT, and as a bereaved relative. We all share your grief and anger about the atrocity.

Mr Wardle, I want to ask you about internet connection records, the new potential powers within the Bill and the purposes for which those records could be retained by an internet service provider. We know now that, as a result of the Joint Committee’s recommendations, there are four purposes for which those records could be retained for potential examination by the authorities. I think that they are very clearly set out: for the purposes of identifying who sent a communication; to establish what services either a suspect or a potential victim has been using; to establish whether or not a known suspect has been indulging in online criminality; and finally—the additional one—to identify services that a suspect has accessed, which could assist an investigation. If there was a narrowing of those purposes, what effect do you think that would have upon the authorities’ ability to investigate child abuse and related offences?

Alan Wardle: As I understand it, the previous draft Bill had a narrowing in the fourth one, and I appeared before the Joint Committee before Christmas to argue against that narrowing. I cannot remember the exact wording, but it was essentially where illegal activity was happening.

Again, I go back to the example of the grooming case I mentioned earlier. Grooming, by its very definition, takes place over a period of time. There are certain activities that you would want to investigate that are perfectly legal. Say a child has been trafficked across the country. Someone has hired a car, taken it from A to B and dropped it off, and they have gone on to the Travelodge website to book a hotel room. All of those are perfectly legitimate activities, but those activities—as part of a wider investigation—would be able to show the police that that person trafficked that child from A to B and that those activities took place. Clearly more would be needed, but the narrowing that was there before would, we believe, have unduly restricted the police’s ability to investigate those kind of crimes.

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

Q May I ask you some questions about internet connection records? Can you confirm that you have read the operational case for internet connection records referring to the case of Amy?

Alan Wardle: I do not think I have read that.

Oral Answers to Questions

Debate between Robert Buckland and Joanna Cherry

Thursday 25th February 2016 Commons Chamber

[The Solicitor General]

I reiterate that the police should follow the evidence wherever it leads. There should be no presumptions of truth or otherwise and they should objectively and fairly investigate cases before presenting them to the Crown Prosecution Service.

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

Is the Solicitor General aware that Scotland’s conviction rate for rape and sexual offences has increased significantly over the past few years as a result of setting up a centralised national sexual crimes unit in Edinburgh, in which the specialist prosecutors oversee the prosecution of all sexual crime across Scotland? I am sure that Scotland’s Law Officers would be very happy if England’s Law Officers wanted to visit and learn more about it.

[The Solicitor General]

I am grateful to the hon. and learned Lady for raising that matter. The scale involved in England and Wales is slightly bigger, so they have taken the regional unit approach, but I entirely agree with her about the need to standardise practice. The Attorney General and I are always very conscious of that in our conversations with the Director of Public Prosecutions and the chief executive of the Crown Prosecution Service, and work is being done to improve that standardisation.